Recent Case: Constitutional application

• Jurisdiction: South Africa
• Published date: 03 September 2019
• Citation: (2003) 16 SACJ 444
• Date: 03 September 2019
• Author: Anashri Pillay
• Pages: 444-447

444

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SACJ • (2003) 16

Constitutional Application

ANASHRI PILLAY

University of Cape Town

Constitutionality of s 38 of the Prevention of Organised Crime

Act 121 of 1998

National Director of Public Prosecutions v Mohamed NO

2003 (1) SACR 561

(CC) was an appeal against a finding that s 38 of the Prevention of Organised

Crime Act 1998 was unconstitutional. In essence, the section allowed the

National Director of Public Prosecutions (NDPP) to use an ex parte

procedure to apply to the High Court for a preservation of property order

(at para 1). The High Court had to make the order 'if there are reasonable

grounds to believe that the property concerned — is an instrumentality of an

offence referred to in Schedule 1; or is the proceeds of unlawful activities' (at

para 14).

The High Court held that s 38 should be read as if the words 'by way of an

ex parte application' did not appear in the section. The court also found that s

38 did not allow for a rule nisi procedure and that this was unconstitutional

(at paras 8 and 9). Other challenges against the Act were dismissed by the

High Court and the respondent did not challenge these findings in the appeal

(at paras 9 and 10).

The question before the Constitutional Court, therefore, was whether s 38

amounted to an unjustifiable infringement of the right to a fair hearing in a

court of law, protected in s 34 of the Constitution (at para 11). The court, per

Ackermann J, noted that the motivation behind the provision lay in the 'rapid

growth of organised crime, money laundering, criminal gang activities and

racketeering' (at para 14). Leaders of organised crime often escaped liability

because they ensured that they were far removed from the overt criminal

activity involved' (at para 14). The purpose of the Act was to prevent

criminals benefiting from their crimes, in line both with South Africa's

international obligations and domestic interests (at para 16).

Under the scheme provided by the Act, once a preservation order is

granted by the High Court, the NDPP has 90 days within which to apply for

the forfeiture of the property. Affected parties are afforded the right to a full

hearing, in which they can use the 'innocent owner' defence to argue that the

property should not be forfeited (at paras 17 and 19). The court pointed out

that there is even provision for affected parties to have the preservation order

set aside or varied before proceedings reach the forfeiture stage (at para 18).

(2003) 16 SACJ 444

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