A note on the introduction of the nullum crimen, nulla poena sine lege or principle of legality in the South African asset forfeiture jurisprudence

• Jurisdiction: South Africa
• Author: D Erasmus
• Date: 24 May 2019
• Published date: 24 May 2019
• Pages: 247-272

A note on the introduction of the

nullum crimen

,

nulla poena sine lege

or principle of legality in the South

African asset forfeiture jurisprudence

D ERASMUS* and NC NDZENGU**

ABSTRACT

The Prevention of Organise d Crime Act 121 of 1998 provides for both

crimina l and civil forfeiture regi mes. In the case of cri minal forfeitu re,

the conscation mach inery provided for may only be i nvoked when the

‘defendant’ is convicted of an offence. Civil for feiture provides for forfeiture

of the proceeds of and inst rumentalit ies used in crime, but t his form of

forfeiture is not conviction-ba sed and may even be invoked when there is

no prosecution. The National D irector of Public Prosecut ions (NDPP) via

appointed legal practitioners choo ses in each case which ass et forfeiture

regime to invoke, depending on the facts of t he case. The recent judgment

of Nt soko v National Director of Publi c Prosecutions deal s with a review

of the decision of the NDPP to resor t to civil forfeiture, as oppose d to

crimina l forfeiture, and an attempt to constrain the exercise o f these powers

in this regard. T he court held that the deci sion of the NDPP to invoke

civil, instead of cr iminal forfeitu re, is reviewable as a consequence of the

principle of legality. In this cont ribution it will be arg ued that the court i n

fact introduced and extended t he application of the principle of legality into

asset forfeiture juri sprudence. The extension of the principle of legality was

applied as a constitutional i mperative or an interpret ive tool to review the

decision of the N DPP.

1 Introduction

‘The law develops and grows as time passes; it does not stand stil l.’1

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

* B Juris LLB (NM MU) LLD (UF S), Associate Professor, Depar tment of Crimi nal and

Procedural Law, Faculty of L aw, Nelson Mandela Metropolita n University, Port

Elizabeth, So uth Africa a nd Attorney of the Hig h Court of South A frica.

** BA (Law) LLB (RU) LLM (NM MU), Senior Deputy D irector of Public Pr osecutions:

Asset Forfeiture Un it (AFU), Port Elizabeth and At torney of the High Court of South

Africa.

1 S v Burger 1975 (2) SA 601 (C) at para [616].

247

(2016) 29 SACJ 247

© Juta and Company (Pty) Ltd

for both criminal 2 and civil3 forfeiture reg imes. The proceedings for

both regimes are civil and not cr iminal in nat ure.4 Chapter 5 of POCA

on the one hand makes provision for the conscation of the benets

or fruits derived from cri me, but the conscation machiner y provided

for may only be invoked when the ‘defendant’ is convicted of an

offence. Chapter 6 on the other provides for forfeiture of the proceeds

of and instrumenta lities used to facilitate in a meani ngful manner the

commission of crime, but this for m of forfeiture is not conviction based

and may even be invoked when there is no arrest or prosecution.

In this insta nce, the commission of offences is proved via the civil

route, using motion proceedings. Civil forfeiture of assets occ urs

therefore in the absence of a crimina l arrest, conviction or sentence.

The concomitant result is the perm anent loss of property to the state,

either as proceeds of unlawf ul activities and/or instrumenta lities of

those offences .

It is with this in mi nd that there is therefore more reason to expect

full protection from the judicia ry of the citizenr y and its property

in this regard, relying on the Bi ll of Rights.5 The National Director

of Public Prosecutions (NDPP), an organ of state via appointed legal

practitioners, chooses which asset forfeiture regi me to invoke in

each matter, depending on the facts of the case. Any loss of proper ty

through asset forfeiture must be adequately justi ed.

2 See Chapter 5, ss 18 (conscation); 25 (restra int); and 30 (realisation), which are

conviction based. For more on c riminal for feiture see the followi ng leading

judgments NDPP v Mcasa 200 0 (1) SACR 263 (TkH); NDPP v Rebuzzi 2002 (2) SA 1

(SCA) ; Phillips v NDPP [2003] 4 All SA 16 (SCA); NDPP v Kyri acou [2003] 4 All SA

153 (SCA); NDPP v Rautenbach 2005 (1) SACR 530 (SCA); Fraser v AB SA Bank Ltd

(NDPP as Amicus Curiae) 20 07 (3) SA 484 (CC); S v Shaik (CCT 86/07) [2008] ZACC

7); and Naidoo v NDPP [2011] JOL 27577 (CC); NDPP v Van der Merwe 2011 (2) SACR

188 (WCC); Falk v NDPP 2012 (1) SACR 265 (CC); NDPP v Ramlutchman [2015] JOL

3327 1 (KZP).

3 See Chapter 6, ss 38 (pres ervation) and 48 (forfeitu re), which are non-conviction

based. For more on civil for feiture see the followi ng leading judgments Maho med

v NDPP 2003 (1) SACR 286 (W); NDPP v Mohamed 2 003 (2) SACR 258 (C); NDPP

v Van Heerden 2004 (2) SACR 26 (C); NDPP v Cook Prop erties/37 Giles pie Street/

Seevnarayan 2004 (2) SACR 208 (SCA); NDPP v Cole 2005 (2) SACR 553 (W); NDPP

v Gouws 2005 (2) SACR 193 (SEC); NDPP v Parker 200 6 (1) SACR 284 (SCA); Prophet

v NDPP 2006 (2) SACR 525 (CC); NDPP v Gerber 2007 (1) SACR 384 (W); NDPP v Van

Staden 2007 (1) SACR 338 (SCA); Mohunram v NDPP 2007 (6) BCLR 575 (C); Singh v

NDPP 2007 (2) SACR 326 (SCA); Mazibuko v NDPP 20 09 (2) SACR 368 (SCA); NDPP

v Starplex/Mamedou (MamAdou) 200 9 (1) SACR 68 (C); and NDPP v Abrina 2011 (1)

SACR 419 (KZP).

4 See s 13 of POCA.

5 Chapter 2 of the Const itution of 1996, which is t he cornerstone of democ racy,

provides for the protectio n of some of the relevant right s such as human dign ity

(s10), privacy (s 14), property (s 25), housing (s 26), children (s 28), access to court

(s 34) and arrested, det ained and accused persons (s 35).

248 SACJ . (2016) 3

© Juta and Company (Pty) Ltd