National Director of Public Prosecutions v RO Cook Properties (Pty) Ltd; National Director of Public Prosecutions v 37 Gillespie Street Durban (Pty) Ltd and Another; National Director of Public Prosecutions v Seevnarayan

• Jurisdiction: South Africa

National Director of Public Prosecutions v RO Cook Properties (Pty) Ltd;
National Director of Public Prosecutions v 37 Gillespie Street Durban (Pty) Ltd and Another;
National Director of Public Prosecutions v Seevnarayan
2004 (2) SACR 208 (SCA)

2004 (2) SACR p208

Citation	2004 (2) SACR 208 (SCA)
Case No	260/03, 666/02 and 111/03
Court	Supreme Court of Appeal
Judge	Mpati DP, Scott JA, Cameron JA, Nugent JA and Lewis JA
Heard	February 24, 2004
Judgment	May 13, 2004

Flynote : Sleutelwoorde

Search and seizure — Civil recovery of property in terms of ch 6 of Prevention of Organised Crime Act 121 of 1998 — C Inter-related purposes of ch 6 of D Act include (a) removing incentives for crime; (b) deterring persons from using or allowing property to be used in crime; (c) eliminating or incapacitating some of means by which crime committed; and (d) advancing ends of justice by depriving those involved in crime of property concerned — At least (b) and (d) embody palpably penal aspect — Provisions must be restrictively interpreted. E

Search and seizure — Civil recovery of property in terms of ch 6 of Prevention of Organised Crime Act 121 of 1998 — Chapter 6's primary focus not on wrongdoers, but on property used to commit offence or which constitutes proceeds of crime — Criminal conviction not condition precedent to forfeiture and property may be forfeited even where no F charge pending — Guilt or wrongdoing of owners or possessors of property not primarily relevant to proceedings (at least in first phase of chapter's two-stage procedure) — In giving meaning to 'instrumentality of an offence' focus not on state of mind of owner, but on role property plays in commission of crime — Phrase must be interpreted independently of guilt or innocence of property-owner — Where forfeiture G order sought Court undertakes two-stage enquiry — In first, it ascertains whether property in issue is an 'instrumentality of an offence' — At this stage owner's guilt or wrongdoing, knowledge or lack of it, not the focus — Question is whether functional relation between property and crime established — Only at second stage, H when Court considers whether certain interests should be excluded from forfeiture, does owner's state of mind come into play.

Search and seizure — Forfeiture order in terms of ch 6 of Prevention of Organised Crime Act 121 of 1998 — Exemption from — Who may apply — 'Interest' — Meaning of — Act defines 'interest' very widely as including 'any right' — No reason to exclude ownership from that I definition, nor to prevent owners from applying to exempt their full interest from forfeiture in terms of s 52(1).

Search and seizure — Forfeiture order in terms of ch 6 of Prevention of Organised Crime Act 121 of 1998 — Application for order of civil forfeiture — Which property liable for forfeiture — Act requires property owners to exercise responsibility for property and to account for stewardship J

2004 (2) SACR p209

of it in relation to its possible criminal utilisation — Pursuit of A statutory objectives cannot exceed what is constitutionally permissible — Forfeitures that don't rationally advance inter-related purposes of ch 6 are unconstitutional — Deprivations going beyond those that remove incentives, deter use of property in crime, eliminate or incapacitate means by which crime committed and at same time advance ends of justice not contemplated by or permitted under Act — Relationship between purpose of forfeiture and B property to be forfeited must be close, purpose of forfeiture must be compelling and proportionality analysis, in which nature and value of property subject to forfeiture is assessed in relation to crime involved and role it played in its commission, may be appropriate at final stage.

Search and seizure — Forfeiture order in terms of ch 6 of Prevention of Organised Crime Act C 121 of 1998 — Application for order of civil forfeiture — Which property liable for forfeiture — Words 'concerned in the commission of an offence' used in definition of 'instrumentality of an offence' in s 1 must be interpreted so that link between crime committed and property reasonably direct — Employment of property must be functional to commission of crime — Property must play D reasonably direct role in commission of offence — In real or substantial sense property must facilitate or make possible commission of offence — As term 'instrumentality' itself suggests property must be instrumental in, and not merely incidental to, commission of offence — To qualify for forfeiture as 'instrumentality of an offence' thing must play part, in reasonably E direct sense, in those acts which constitute actual commission of offence in question — However, it not necessary that property is means by which offence is committed — Relation of indispensable causality between property and offence doesn't, by itself, constitute measure of involvement necessary for making property 'instrumentality' of offence. F

Search and seizure — Forfeiture order in terms of ch 6 of Prevention of Organised Crime Act 121 of 1998 — Application for order of civil forfeiture — Which property liable for forfeiture — Fact that crime is committed at certain location doesn't by itself entail that venue is 'concerned in the commission' of offence — Either in its nature or through manner of its utilisation, property must have been employed in some way G to make possible or to facilitate commission of offence.

Search and seizure — Forfeiture order in terms of ch 6 of Prevention of Organised Crime Act 121 of 1998 — Application for order of civil forfeiture — Facts to be proved by applicant — NDPP cannot claim forfeiture of property by oblique invocation of statutory infractions, still less by mistaken H allusion to them — Where owner stands to lose property because asset 'concerned in the commission of an offence', papers must set out clearly case she or he is called to answer, especially precise nature of offence.

Search and seizure — Prevention of Organised Crime Act 121 of 1998 — Application of — Act designed to reach far beyond I 'organised crime, money laundering and criminal gang activities' and clearly applies to cases of individual wrongdoing.

Search and seizure — Forfeiture order in terms of ch 6 of Prevention of Organised Crime Act 121 of 1998 — Application for order of civil forfeiture — Which property liable for forfeiture — 'Proceeds of unlawful J

2004 (2) SACR p210

activities' — Amplitude of definition of 'proceeds of A unlawful activities' should be approached somewhat differently from that in case of 'instrumentality of an offence' — Risk of unconstitutional application is smaller — Definition, subject to necessary attenuation of linguistic scope of 'in connection with', should be given its full ambit.

Search and seizure — Forfeiture order in terms of ch 6 of Prevention of Organised Crime Act B 121 of 1998 — Discretion of Court in making forfeiture order — Section 50(1) must be read in tandem with s 48(1) of Act — This means 'the property' in respect of which s 50(1) empowers Court to order forfeiture is same property referred to in s 48, encompassing 'all or any' of it — If words 'all or any' imported from s 48 to s 50 in this way Court ordering C forfeiture will have discretion regarding extent of forfeiture order — Well established that legislation not readily construed so as to oust Court's jurisdiction and there is no indication in Act that Courts not entitled to give NDPP lesser measure of forfeiture than she or he might choose to seek.

Headnote : Kopnota

The inter-related purposes of ch 6 of the Prevention of Organised D Crime Act 121 of 1998 include: (a) removing incentives for crime; (b) deterring persons from using or allowing their property to be used in crime; (c) eliminating or incapacitating some of the means by which crime may be committed; and (d) advancing the ends of justice by depriving those involved in crime of the property concerned. At least (b) E and (d) embody a palpably penal aspect; but the statutory objectives transcend the merely penal. Therefore, the provisions must be restrictively interpreted. (Paragraph [18] at 225g - h.)

Chapter 6's primary focus is not on wrongdoers, but on property that has been used to commit an offence or which constitutes the proceeds of crime. A criminal conviction is not a condition precedent to forfeiture, and property may be forfeited even where no charge is F pending. In consequence (at least in the first phase of the chapter's two-stage procedure), the guilt or wrongdoing of owners or possessors of property is not primarily relevant to the proceedings. This approach to ch 6 has the interpretative consequence that in giving meaning to 'instrumentality of an offence' the focus is not on the state of mind of the owner, but on the role the property plays in the commission of G the crime. The phrase must be interpreted independently of the guilt or innocence of the property-owner. Where a forfeiture order is sought the Court thus undertakes a two-stage enquiry. In the first, it ascertains whether the property in issue was an 'instrumentality of an offence'. At this stage the owner's guilt or wrongdoing, knowledge or lack of it, are not the focus. The question is whether a functional relation between property and crime has been established. Only at the H second stage, when (after finding that the property was an instrumentality) the Court considers whether certain interests should be excluded from forfeiture, does the owner's state of mind come into play. Approached from a different perspective, the contextual and constitutional indicators pointing to a restrictive interpretation of 'instrumentality' make it unnecessary to intrude the owner's culpability into the first stage. (Paragraphs [20] and [21] at I 226d - h.)

The Act defines 'interest' very widely as...