Constitutionally justifiable: The seizure of assets acquired by crooks

MBOMBELA – Criminal asset forfeiture is utilised as a law enforcement method to combat organised criminal activity.

The Asset Forfeiture Unit (AFU) was established in May 1999, in the Office of the National Director of Public Prosecutions to focus on the implementation of the Prevention of Organise Crime Act (POCA). The primary reason for the enacted law is to not only arrest the offenders at the bottom of the criminal chain, but to also to remove the instruments of crime including the funding which syndicates at the top employ to commit other crimes.

Lowvelder reported on March 1, 2016 that more than R76 million and a Toyota Hilux were seized following the arrest of two Mozambicans at the Lebombo Border Post. The cash appears to have been procured through illegal activities and that the Hilux were used as an instrument to commit the offences. The accused committed various offences in terms of POCA and the High Court sitting in Pretoria subsequently granted a preservation of property order, to the provincial Asset Forfeiture Unit (AFU) against the Hilux and cash with a value of R76 725 714,76.

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Above is an example of where the authorities acted in terms of the provisions of POCA. Sections 25 and 26 of POCA provide for the making of a restraint application at a High Court prior to or subsequent to a conviction, which prohibits any person affected by the restraint order from dealing in any manner with the property to which it applies.

The restraint order is granted over property held by the defendant concerned, as well as any property held by any third party who may have been the recipient of illicit gifts from the defendant.

The application is usually brought by the National Director of Public Prosecutions (NDPP). The state relies on the affidavits of the victims to support its application in court to preserve the property. A court who grants a restraining order may appoint a curator as an administrator who looks after the property.

A restraint order can be obtained once the NDPP has shown on a balance of probabilities, a reasonable prospect of obtaining both a conviction in respect of some or all of the charges levelled against the accused person and a subsequent confiscation order. This burden of proof is lighter than that in a normal criminal cases where in order to convict a person of a criminal offence, it must be proved beyond a reasonable doubt.

An inquiry pertaining the confiscation of proceedings of crime, begins only after a defendant has been convicted. The principle purpose of the confiscation inquiry is to determine whether the defendant has benefited from any criminal activity which the court finds to be sufficiently related to the offences committed. The court has a discretion in terms of the appropriate amount that the defendant needs to pay to the state and depends on the facts of each case. The amount the court may order the defendant to pay is determined by Section 18(2) and Section 20 of POCA and is not limited to a net amount. A confiscation order can be made in respect of any property.

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The Constitution of South Africa states in Section 25(1) that no law may permit arbitrary deprivation of property. In Deutschmann v Commissioner for the Revenue Service, the state after an ex-parte proceeding issued a warrant to seize property believed to be part of the proceeds of tax fraud and the constitutionality of the seizure was questioned by the defendant.

It was held that an application in terms of POCA requires judicial oversight by the judge, who applies his mind to the facts of the case and the application is supported by information supplied under oath. Any party with a vested right in the contested property, may in terms of POCA claim the return of the assets confiscated. Therefore there can be no question of arbitrary deprivation of property as envisaged by the Constitution.

The seizure of assets by the AFU is intended to be a deterrent against criminality and to deprive convicted persons of the fruits of their illicit activities. It further serves to remove the financial means of criminals to commit other serious crimes.