Confiscation of the proceeds of crime and the fair-trial rights of an accused person
| Jurisdiction | South Africa |
| Author | L Jordaan |
| Date | 24 May 2019 |
| Published date | 24 May 2019 |
| Pages | 41-60 |
Confiscation of the proceeds of crime
and the fair-trial rights of an
accused person
L JORDAAN*
1. Introduction
The broad legislative powers
1
vested in the South African judiciary to make
restraint and confiscation orders
2
in respect of the proceeds of organised
criminal activity have proved to be highly effective. As anticipated, the
constitutional validity of these measures have been questioned on a number
of grounds. For instance, in
Director of Public Prosecutions: Cape of Good
Hope v Bathgate,
3
a restraint order was challenged on the grounds that it
amounts to infringement on the constitutional right to human dignity, the
right to privacy and the right not to be deprived of property and the right to
remain silent.
4
The court observed that, in general, measures such as restraint
and confiscation, although encroaching upon protected fundamental rights,
are equitably and morally justified in certain circumstances.
5
Van Zyl J
* B Proc (RAU), LLB, LLD (Unisa),
Professor in the Department of Criminal and Procedural
Law, University of South Africa.
1
These powers were first introduced in the Drug and Drug Trafficking Act 140 of 1992. They
were, however, limited to the proceeds of drug-related offences. The Drug Trafficking Act was
repealed by the Proceeds of Crime Act 76 of 1996, which extended the powers of the courts to
other forms of organised criminal activity, namely money laundering. The latter Act was
repealed by the Prevention of Organised Crime Act 121 of 1998 (amended by the Prevention
of Organised Crime Amendment Act 24 of 1999). See M Cowling 'Fighting organised crime:
comment on the Prevention of Organised Crime Bill 1998' (1998) 11
SACJ 350
for an overview
of the provisions of the Act, hereinafter referred to as POCA.
2
Confiscation means the depriving of an offender of the proceeds or the profits of his or her
criminal activity. Broadly speaking, the effect of a confiscation order is that the offender must
pay to the state an amount of money equal to the value obtained from criminal activity. The
purpose of a restraint order is to preserve certain properties that form the subject of a possible
confiscation order on a future date. It is a pro-active measure to prevent an offender from
removing or concealing property that may be the subject of a confiscation order. See South
African Law Commission: Working Paper 56 'International co-operation in criminal
prosecutions' (1995) 82-83. For an instructive analysis of measures such as restraint,
confiscation and forfeiture of the instrumentality and proceeds of crime, see D Hodgson
Profits of Crime and their Recovery
(1984).
3
4
Sections 10, 14, 25 and 35 of the Constitution of the Republic of South Africa 108 of 1996.
5
Director of Public Prosecutions: Cape of Good Hope v Bathgate
supra (n 3) at 130g.
41
(2002) 15 SACJ 41
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42
SACJ •
(2002) 15 •
SAS
expressed the view that, because these remedies were developed to resist
the ever-increasing criminal onslaught, they '. .. are indispensable in any
community which prides itself on being a proponent of justice, fairness,
reasonableness, good faith and good (public) morals'.
6
Confiscation of the proceeds of crime as provided for in the POCA were
attacked directly in
National Director of Public Prosecutions v Phillips.
7
The
respondents in this case raised,
inter alia,
the following argument:
Confiscation of the proceeds of crime is a criminal penalty. The proceedings
leading to a confiscation order are inherently criminal proceedings and
incorrectly classified as civil proceedings in terms of the POCA.
8
Therefore, a
person against whom confiscation enquires are made, is entitled to the rights
of an accused person set out in s 35(3) of the Constitution. The court rejected
this argument, advancing a number of reasons why confiscation of the
proceeds of crime should be viewed as a civil, rather than a criminal, remedy.
It is of interest to note that issues similar to those raised in the
Phillips
case,
were the subject of debate in recent decisions of criminal courts in the United
Kingdom and the European Court of Human Rights.
9
This article will
consider certain aspects of the
Phillips
judgment in the light of arguments
raised on similar issues in these foreign jurisdictions. Broadly speaking, two
issues are investigated. The first is whether the provisions in the POCA,
which govern application for a confiscation order, amount to criminal
proceedings, despite being labeled as civil proceedings. This involves an
investigation of whether a confiscation order should be classified as
punishment, or as a civil remedy aimed purely at reparation. If a confiscation
order can be characterised as essentially punitive in nature, the question then
arises, which of the s 35(3) fair-trial rights may be invoked by a person
against whom confiscation proceedings have been instituted.
2. The provision of the Act
The relevant provisions of the POCA are as follows. A court may, after
convicting a defendant of an offence, on application of the public prosecutor,
enquire into any benefit which the defendant may have derived from that
6
Ibid.
7
8
Section 13 of the POCA provides that proceedings on application for a confiscation order or a
restraint order are civil proceedings and not criminal proceedings, and that the rules of
evidence applicable in civil proceedings apply.
9
See v Benjafield' (2000)
Criminal Law Review
at 245;
McIntosh v His Majesty's Advocate The
Times,
October 2000; His
Majesty's Advocate v McIntosh
2001 Dl UKPC 1 and
Philips v United
Kingdom
5 July 2001 obtained from the Internet at http://www.beagle.org.uk/hra/
indexold.htm. These cases are discussed in detail below.
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