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 |
Pages | 247-272 |
Published date | 24 May 2019 |
Citation | (2016) 29 SACJ 247 |
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 conscation 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
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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 conscation of the benets
or fruits derived from cri me, but the conscation 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 (conscation); 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
(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
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
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
(s10), 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
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