Recent Case: Criminal procedure

• Jurisdiction: South Africa
• Pages: 257-268
• Date: 24 May 2019
• Author: Michael Cowling
• Published date: 24 May 2019

257



SACJ •

(2002) 15 •

SAS

Criminal Procedure

MICHAEL COWLING

University of Natal, Pietermaritzburg

Prevention of organized crime—confiscation order—

retrospectivity

Section 18(1) of the Prevention of Organised Crime Act 121 of 1998 permits a

court ,which has convicted an accused of an offence, to make a confiscation

order in respect of any or all of the accused's property that has been derived

from any criminal activity either directly or sufficiently related to the offence

with which he or she has been convicted. This provision is facilitated by s 25

which enables a court to make a restraint order prior to the conclusion of

criminal proceedings against an accused in circumstances where it appears

that a confiscation order is reasonably likely to be made. The effect of this is

to prevent any dealing with the property pending completion of trial.

In

National Director of Public Prosecutions v Basson

2001 (1) SACR 712

(SCA) an order had been made in terms of s 25 against the accused in respect

of certain properties that were believed to have been acquired as a result of

extensive misappropriation of state funds. However it was common cause

that the numerous charges of fraud and theft (which formed the basis of the

restraint order) were committed prior to the commencement of the Act.

Hence it was necessary for the court to determine whether s 18(1) has

retrospective effect. The reason for this is that the restraint order in terms of s

25 can only be granted where there are reasonable grounds for believing that

a confiscation order may be made against the accused. Thus, in the event of a

finding that such provision does not operate retrospectively, there are no

reasonable grounds for believing that an order in terms of s 18 will be

granted which in turn means that a court will be precluded from making a

restraint order in terms of s 25.

In concluding that s 18 cannot operate retrospectively the Supreme Court

of Appeal (per Nugent AJA) referred to the underlying principle to the effect

that there is 'a natural resistance to creating legal consequences for conduct

only after the conduct has occurred' (at 716h). In addition, retrospectivity

would ordinarily conflict with the Bill of Rights and hence would need to be

justified in term of s 36(1). The court further pointed out that the fact that

certain provisions contained in the Act were expressly stated to operate

retrospectively indicates that the legislature had applied its mind to the

question of retrospectivity in general and therefore the omission to expressly

(2002) 15 SACJ 257

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