The National Director of Public Prosecutions may in terms of the Organised Crime Act 121 of 1998 Act apply to court for an order:
a) restraining any person from dealing with assets which are suspected to have been acquired in connection with a crime; and
b) preserving the assets until the investigation has been finalised.
In the application paper for an order as aforesaid, a specific curator will be nominated. Once the court has heard the matter and granted the order, the nominated curator is then officially appointed by the Master of the High Court under letters of curatorship ( a certificate of appointment) to seize, collect and preserve the assets in question until the National Director of Public Prosecutions’ investigation into the possibly unlawful acquisition thereof has been completed.
A preservation order is a prelude to a forfeiture or confiscation order. The former is not dependent upon a successful prosecution, but the latter is.
Upon it being established by the National Director of Public Prosecutions on a balance of probabilities that the property in question ‘is an instrumentality of an offence referred to in Schedule 1’ to the Act or ‘is the proceeds of unlawful activities’, the assets may be forfeited.
The duties of the curator bonis under a preservation order, are to preserve and care for the assets pending investigation. This necessarily involves them having to pay the preservation costs such as security, insurance or rates where the property is immovable.
Why curators in asset forfeiture matters require a surety bond?
Curators appointed by the National Director of Public Prosecutions are required to put up security for their obligations while in office as curator of what may be assets forfeited to the state. In these positions of trust which curators assume, a significant amount of assets will be under their power and control and the Master needs to ensure that the State is adequately protected should the curator sell for his own gain or make off with the assets.