On the face of The Sunday Mail, Harare, 30 August 2020, flashes an article titled ZACC seizes US$ 8m mansion, luxury cars in which reference is made to an issue captured in the heading to this article. It is the purpose of this paper to briefly provide some basic notes on the subject of forfeiture of proceeds of crime and corruption in the state’s quest to deal with organised crime and corruption. This article is based on the law as it is in South Africa at the time of writing.

Forfeiture Applications are civil proceedings in which the state seeks an order of the court declaring forfeited to it named property belonging to a named Respondent. In South Africa this is done in terms of Section 48 of the Prevention of Organized Crimes Act (hereinafter referred to as (POCA) and in Zimbabwe this is provided for in the Money Laundering and Proceeds of Crime Act.

In opposing these applications for forfeiture, Respondents should seek in the first place to dispel the basis for such applications and endeavour to show that the order sought is in any event disproportionate in the circumstances of the matter and will amount to an arbitrary deprivation of their property in offence to the Constitution.

In doing the above the Respondents should show the sources of the properties in question so as to discredit the label placed on the properties as “proceeds of a crime” or that the property should be released on the basis of innocent receiver at the least.

Section 48 of the POC Act provides that the State may apply to a court for an order forfeiting to the state property that has been subject to a preservation order in terms of the Act.

Section 50 provides that the court has a discretion to make an order applied for under Section 48 (1) if the court finds on a balance of probabilities that the property concerned is the proceeds of unlawful activity.

By their very nature, civil forfeiture applications are susceptible to serious and material disputes of facts which are not capable of resolution on the papers. Section 37 (1) of POCA provides that all proceedings for civil recovery of assets under Chapter 6 of the Act are civil proceedings. Section 37 (2) goes further to state that rules of evidence applicable in civil proceedings apply to these proceedings and in that section lies a possible preliminary point to raise when defending civil forfeiture applications.

One of the basic principles in civil procedure entails that where there are disputes of facts which are incapable of resolution on papers, a court sitting in motion proceedings may dismiss the application or refer the matter for the calling of evidence. [see generally Plascon Evans Paints (TVL) Ltd –v- Van Riebeck Paints (Pty) Ltd).

A trite principle of the law of evidence provides that:-

the principles governing disputes of fact in motion proceedings are well-established. An applicant who seeks final relief on motion must accept the version of his opponent in the event of a conflict, unless the court considers that the latter’s allegations do not raise a real, genuine or bona fide dispute of fact, or are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers.

While it is acknowledged that there is a difference between Conviction Based Forfeiture (CBF) and Non Conviction Based Forfeiture (NCBF) and while acknowledging that a court can grant forfeiture in the absence of a conviction, the case for a criminal offence ought to be clear before a court sanction Non Conviction Based Forfeiture. The test prescribed by the statute of a balance of probabilities ought to be weighed against the Respondent’s Constitutional right to non-deprivation of property.

In deciding on whether or not to grant a forfeiture justice demands the striking of a balance between considerations of State power and those of individual liberties. This interaction not only lies at the heart of criminal justice process but at the heart of modern constitutional development – it involves the concept ‘rule of law’, that (constitutional) commitment to minimum standards of both substantive and procedural fairness.

Whether understood as entrenched principles of the common law or meta-principles articulated in international agreements and enacted by legislation, rights such as due process and the right to a fair trial not only represent ‘principled expressions of the moral life of the nation but also comprise limitations upon the potential excesses in the exercise of governmental power and this is what this court ought to be guided by.

Often these proceedings are instituted for ulterior motives and often the decision to “follow the money” as it were not that of the state but of powerful individuals in politics and positions of control pursuing their personal interests.

Civil forfeiture are often good examples of where the law and justice fails. The machinery of law easily gives in to what is de facto legally illegitimate or at the very least in clear contradiction to the spirit of the rule of law as it has always been understood.

It could even be pointed out that an accused standing accused of corruption in the criminal court could be far better off than the Respondents in forfeiture proceedings. The one in a criminal court at least gets an opportunity to cross-examine his accuser and further at any rate the state still has to prove his guilty beyond a reasonable doubt.

Indeed, yes, the Constitutional Court in Mohunram v National Director of Public Prosecutions [2007 2 SACR 145 (CC) par [58] endorsed the notion that the state is constitutionally authorized to use forfeiture, in addition to criminal sanctions. The property rights of those who are actually involved in the commission of crime may therefore be forfeited, provided that the requirements in terms of section 25(1) of the Constitution have been met, namely that a proper balance between the public purpose of the deprivation and the interests of the affected person needs to be established.

Although POCA embodies a serious attempt to combat organized crime, money laundering and criminal gang activities, the financial penalties and forfeiture of instrumentalities and proceeds of crime may constitute excessive and unreasonable consequences for people whose rights are adversely affected by these procedures.

The court cautioned in National Director of Public Prosecutions v Cole that forfeiture orders may "easily become a weapon of terror rather than a weapon of justice."

An unrestrained application of forfeiture procedures may violate constitutional rights and in particular the right not to be arbitrarily deprived of property within the meaning of section 25 (1) of the Constitution.

Moseneke DCJ succinctly stated in the Mohunram decision that civil forfeiture constitutes a serious interference with well-established civil protections such as those against arbitrary and excessive punishment, and safeguards against the arbitrary forfeiture of property.

A further and significant note of caution was issued by the court in Prophet v National Director of Public Prosecutions 2007 BCLR 140 (CC) par [45] :-

Courts should be vigilant to ensure that the statutory provisions in question are not used in terrorem and that there has been no overreaching and abuse. See also NDPP v Van Staden.

The thrust behind forfeiture of the instrumentalities of crime can therefore constitute arbitrary and unjust consequences.

In Mohunram v National Director of Public Prosecutions 2007 2 SACR 14 (CC) the court had the following to say regards forfeiture applications:-

if the AFU is to accomplish the important functions attributed to it, it should not unduly disperse the resources it has at its command. Its manifest function as defined by statute is to serve as a strongly- empowered law enforcement agency going after powerful crooks and their multitude of covert or overt subalterns. The danger exists that if the AFU spreads its nets too widely so as to catch the small fry, it will make it easier for the big fish and their surrounding shoal of predators to elude the law. This would frustrate rather than further the objectives of POCA.

It must be submitted that the approach the question of forfeiture by using an analysis which encompass the following :-

(a) establishment of the nature and gravity of the offence,

(b) the effectiveness of ordinary criminal measures in the successful detection and prosecution of the offence,

(c) the severity of the penalties already imposed on the offender,

(d) the public impact in relation to social harm and disruption inclusive of the risk of the perception that forfeiture in the particular case will be disproportional and hence amounts to arbitrary deprivation of property, which tends to undermine the public confidence in the justice system.

What clearly surfaces from the Mohunram decision is that the Constitutional Court underscored the point that ordinary forms of law enforcement should be the first port of call, and POCA should not be applied as a top-up of criminal penalties. Otherwise, if recklessly applied, POCA could blur the distinction between the purposes of criminal and civil law at the risk of disintegrating the traditional branches of our law. I have previously said, Public Power Can Easily Be Used As An Instrument To Settle Old Scores, From the War-days.

ADV I MURERIWA

+27 71 151 9000

advmureriwa@yahoo.com

30 AUGUST 2020