National Director of Public Prosecutions v Basson

• Jurisdiction: South Africa
• Judge: Hefer ACJ, Scott JA, Streicher JA, Mpati JA and Nugent AJA
• Judgment Date: 28 September 2001
• Citation: 2002 (1) SA 419 (SCA)
• Docket Number: 131/2000
• Hearing Date: 17 September 2001
• Counsel: N Singh SC (with him D Dorfling and R J Chinner) for the appellant. J G Cilliers (with him M M W van Zyl) for the respondent.
• Court: Supreme Court of Appeal

Nugent AJA:

[1] A statute is said to operate retrospectively if it creates legal consequences for conduct only after that conduct has occurred. F The decisive question in the present appeal is whether s 18(1) of the Prevention of Organised Crime Act 121 of 1998 (prior to the amendment of the Act by the Prevention of Organised Crime Second Amendment Act 38 of 1999) operates with that effect. If it does, further questions would arise relating to its constitutional validity, but for the reasons that G follow those questions need not concern us in this appeal.

[2] Before turning to the circumstances which gave rise to the appeal it is convenient to summarise some of the salient features of the Act. Section 18(1) is the foundation for chap 5 of the Act, which H is designed to enable a court to deprive a convicted person of the proceeds of crime. The section permits a court which has convicted a person of an offence to make what is referred to as a 'confiscation order' which has the effect of a civil judgment. The section reads as follows: I

'Whenever a [criminal] defendant is convicted of an offence the court convicting the defendant may, on the application of the public prosecutor, enquire into any benefit which the defendant may have derived from -

(a)

that offence;

(b)

any other offence of which the defendant has been convicted at the same trial; and J

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(c)

any criminal activity which the court finds to be sufficiently related to those offences, A

and, if the court finds that the defendant has so benefited, the court may, in addition to any punishment which it may impose in respect of the offence, make an order against the defendant for the payment to the State of any amount it considers appropriate and the court may make any further orders as it may deem fit to ensure the effectiveness and fairness of that order.' B

[3] In terms of s 12(3) a person has 'benefited from unlawful activities' (which presumably means that he has derived a benefit as contemplated by s 18(1)) if

'he or she has at any time, whether before or after the commencement of this Act, received or retained any proceeds of unlawful C activities'.

[4] The amount for which a confiscation order may be made may not exceed the lesser of (a) 'the value of the defendant's proceeds of the offences or related criminal activities referred to in [ss 18(1)]' or (b) the net value of the sum of the defendant's property and certain defined gifts made by the defendant (s 18(2)). Section 19(1) defines the D 'value of a defendant's proceeds of unlawful activities' to be

'the sum of the values of the property, services, advantages, benefits or rewards received, retained or derived by him or her at any time, whether before or after the commencement of this Act, in connection with the unlawful activity carried on by him or her or any other person'. E

[5] Part 3 of chap 5 deals with 'restraint orders', which are designed to ensure that property is preserved so that it can be realised in satisfaction of a confiscation order. Section 26(1) authorises the National Director of Public Prosecutions to apply to a High Court, ex parte, for an order 'prohibiting any person F . . . from dealing in any manner with any property to which the order relates'. The remaining provisions of part 3 of chap 5 confer wide powers upon the court as to the terms of any such restraint order. In particular, it may appoint a curator bonis to take charge of the property that has been placed under restraint, order any person to surrender the property to the curator bonis, authorise the police to seize the property, and place restrictions upon encumbering G or transferring immovable property. It may also make a provisional restraint order having immediate effect and simultaneously grant a rule nisi calling upon the defendant to show cause why the order should not be made final.

[6] The circumstances in which a restraint order may be made are H provided for in s 25(1) as follows:

'A High Court may exercise the powers conferred on it by s 26(1) [ie the powers to make restraint orders] -

(a)

when -

(i)

a prosecution for an offence has been instituted against the defendant concerned; I

(ii)

either a confiscation order has been made against that defendant or it appears to the court that there are reasonable grounds for believing that a confiscation order may be made against that defendant; and

(iii)

the proceedings against that defendant have not been concluded; or

(b)

when - J

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(i)

that court is satisfied that a person is to be charged with an offence; and A

(ii)

it appears to the court that there are...