Legal expenses POCA clauses: A loophole to make crime pay?

• Jurisdiction: South Africa
• Date: 06 September 2019
• Pages: 309-332
• Citation: (2011) 24 SACJ 309
• Published date: 06 September 2019
• Author: Nkululeko Christopher Ndzengu

Legal expenses POCA

clauses: A loophole to make

crime pay?*

NKUlUleKO cHristOPHer NDZeNGU** &

JOHN c VON BONDe***

aBstract

‘If the criminal offender can expend the proceeds of crime without limitation

to challenge the forfeiture action and with the knowledge that when the

case is lost, whatever is left will be forfeited to the state, the offender has

no incentive to do anything other than to f‌ight the forfeiture until all of the

restrained funds have been exhausted’1

The Prevention of Organised Crime Act 121 of 1998 (POCA) aims

to dislodge the fruits of criminal activity from the hands of criminals

and their cohorts thus endeavouring to take the prof‌it out of crime.

Simultaneously however, certain provisions of POCA allow alleged

criminals to access forfeited assets in order to cover their legal expenses.

These provisions have to be reconciled with, on the one hand, the

specif‌ic restitutionary rights of victims of crime and, on the other hand,

the general interests of the community in ensuring that crime should

not pay. This article attempts to assess critically how these divergent

interests have been weighed and balanced by the courts. This article

shows that – by means of their asset forfeiture jurisprudence – South

African (SA) courts have created distinct criteria that are to be taken into

account in order to reconcile these potentially conf‌licting interests. This

jurisprudence is analysed and the criteria that assist in resolving the

apparent conf‌lict are expounded.

* The views expressed in this paper are those of the authors alone and do not represent

the views of the South African National Prosecution Authority or Nelson Mandela

Metropolitan University.

** BA LLB (RU) LLM (NMMU), Attorney of the High Court of South Africa, Deputy

Director of Public Prosecutions: Asset Forfeiture Unit (AFU), Bloemfontein. I am

grateful for the assistance of my colleagues in the AFU as well as my wife, Lolla, in

this research.

*** BJuris LLB (UPE) LLD (NMMU), Attorney of the High Court of South Africa, Senior

Lecturer, Department of Criminal and Procedural Law, Nelson Mandela Metropolitan

University.

1 TS Greenberg, LM Samuel, W Grant & L Gray Stolen Asset Recovery: A good Practice

Guide for Non – Conviction Based Asset Forfeiture (2009) 74fn139.

309

(2011) 24 SACJ 309

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1. Introduction

While respecting constitutional individual rights to human dignity,2

equality,3 freedom,4 and property,5the Preamble to the Prevention of

Organised Crime Act (POCA)6 sets out its objectives as, among others,

combating crime and making sure that no criminals benef‌it from it or are

entitled to use targeted property to facilitate crime.7 Divergent interests

are at play here; if the State cannot prove wrongdoing and benef‌it as

well as the illegal use of assets by the alleged criminal,8 the latter will

retain and enjoy the constitutionally protected property rights. The

converse is that the State or the victim of the underlying crime will only

acquire such property rights subsequent to the f‌inalization of the asset

forfeiture process. Mention is made of a victim because the overall goal

of asset recovery is, in fact, to return the assets to the victim.9

In this article an attempt is made to assess critically how these

divergent interests have been weighed and balanced by courts in

relation to POCA’s provisions for a claimant’s right to legal expenses.

The eff‌icacy of the latter provisions in relation to the overall objectives

of POCA (making sure that the criminal benef‌it is dislodged from the

claimant’s hands, facilitating instruments are permanently removed

from public circulation and that crime eventually does not pay) is

analysed. This analysis is conf‌ined to South African asset forfeiture

judgments since 1999 dealing with legal expenses; it does not directly

address the separate issue of the claimant’s living expenses.10

2 Section 10 of the Constitution of the Republic of South Africa, 1996.

3 Section 9 of the Constitution of the Republic of South Africa, 1996.

4 Section 12 of the Constitution of the Republic of South Africa, 1996.

5 Section 25 of the Constitution of the Republic of South Africa, 1996.

6 Act 121 of 1998 (POCA) which replaced the Proceeds of Crime Act 76 of 1996.

7 Absa Bank Ltd v Fraser and Another [2006] 2 All SA 1 (SCA) at paras [1], [24] and [26];

NDPP v Carolus and Others [2000] 1 SA 1127 (SCA) at paras [9]-[30]; NDPP v Basson

[2002] 1 SA 419 (SCA); NDPP v Rebuzzi [2002] 2 SA 1 (SCA); NDPP v Mohamed NO

& Others [2002] 4 SA 843(CC) at paras [14]-[16]; Fraser v Absa Bank Ltd (NDPP as

Amicus Curiae) 2007 (3) SA 484 (CC).

8 Hereinafter politely referred to as the claimant.

9 NDPP v Rebuzzi supra (n7) at para [19]; Greenberg op cit (n1) 74fn139.

10 The suggestion by Greenberg, op cit (n1) 77, of under which circumstances living

expenses ought to be provided is commendable for both criminal and civil forfeiture

purposes. The claimant must disclose fully and frankly and establish that he or she has

no other assets to f‌inance litigation other than those under restraint or preservation.

He or she is not entitled to maintain the same lifestyle previously accustomed to. If

living expenses are to be released at all, only subsistence-level support should be

permitted.

310 SACJ.(2011) 3

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