National Director of Public Prosecutions v Prophet (5926/01) [2003] ZAWCHC 16 (22 May 2003)

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[2003] ZAWCHC 16
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National Director of Public Prosecutions v Prophet (5926/01) [2003] ZAWCHC 16; 2003 (6) SA 154 (C); 2003 (2) SACR 287 (C); 2003 (8) BCLR 906 (C) (22 May 2003)

REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD
HOPE PROVINCIAL DIVISION)
CASE
NO 5926/01
In the application
of:
THE
NATIONAL DIRECTOR OF
PUBLIC
PROSECUTIONS
Applicant
and
SIMON
PROPHET
Respondent
IN
RE: ERF 14241, CAPE TOWN, SITUATED AT 54 BALFOUR STREET, WOODSTOCK
THIS
JUDGEMENT DELIVERED ON THIS 22
nd
DAY OF MAY
2003
N C ERASMUS, J:
[1] This
is an application brought by the National Director of Public
Prosecutions (NDPP) for civil forfeiture under section 48(1)
of the
Prevention of Organised Crime Act (POCA), 121 of 1998, (hereinafter
called ‘the Act’) which came into operation on the
21
st
January 1999. A preservation order in terms of section 38(2) of the
Act was granted by Desai J on 28
th
June 2001 preserving the property situated at 54 Balfour Street,
Woodstock (‘the property’). In addition, a
curator
bonis
was appointed to assume control of the aforementioned property.
[2] If
a preservation order is in force, the NDPP may in terms of section 48
apply to the High Court for an order for the forfeiture
of ‘all or
any of the property’ concerned. In terms of section 50(1), the High
Court ‘shall’ grant the forfeiture order applied
for by the NDPP
if it ‘finds on a balance of probabilities that the property
concerned is an instrumentality of an offence referred
to in Schedule
1 or is the proceeds of unlawful activities.’
The
Statute
[3] The
Act as a whole is a response to a perceived growth in organised and
related criminal activities
1
.
It was enacted in response to a belief that ‘South African common
law and statutory law had failed to deal effectively”
2
with such criminal activities. In this regard the Act is in line with
international trends, as it encompasses not only criminal forfeiture
but also the relatively new concept, to South Africa at least, of
civil forfeiture. The intent behind the inclusion of civil forfeiture
appears to be twofold. To provide the means to forfeit the proceeds
of crime and in the process remove the incentive for crime and
to
seize assets that are used to facilitate unlawful activities and thus
remove these instrumentalities from criminal control.
[4] The
present application involves Chapter 6 of the Act, which bears the
heading “Civil recovery of property” and thus provides
for civil
forfeiture, as opposed to criminal forfeiture, which is regulated by
Chapter 5. As the proceedings under Chapter 6 are
deemed to be civil
proceedings they are governed by the rules of evidence and procedure
applicable to proceedings of that kind. Clearly
the purpose of
Chapter 6 is to target the asset bases of criminal enterprises,
independent of criminal proceedings. In the words
of Ackerman J,
“Chapter 6 (comprising sections 37 to 62) provides for forfeiture
of the proceeds of and instrumentalities used
in crime, but it is not
conviction based: it may be invoked even where there is no
prosecution.”
3
In fact the Act explicitly separates the criminal process from the
civil forfeiture process. Therefore Chapter 6 is focused not on
“wrongdoers, but on the property that has been used to commit an
offence or which constitutes the proceeds of crime. The guilt
or
wrongdoing of the owner or possessors of the property is, therefore,
not primarily relevant to the proceedings.”
4
[5] Section
37 of the Act entrenches the distinction between civil proceedings
and criminal proceedings
5
.
Section 50(4) of the Act expressly states that the validity of an
order made in terms of s50(1), forfeiting to the state property
that
is subject to a preservation of property order made in terms of
s39(2) is not affected by the outcome of any related criminal
proceedings.
6
This section sanctions the granting of an order for the forfeiture to
the state of property that is an ‘instrumentality of an offence
referred to in Schedule 1 to the Act’ before any criminal
proceedings in respect of that offence are instituted or, if
instituted,
determined.
[6] To
delay the determination of civil forfeiture proceedings until the
finalisation of related criminal cases would have a dramatic
impact
on the purpose of an asset forfeiture programme. After all the
“present Act (and particularly Chapters 5 and 6 thereof)
represents
the culmination of a protracted process of law reform which has
sought to give effect to South Africa’s international
obligations
and domestic interest, to ensure that criminals do not benefit from
their crimes.”
7
Moreover, such a delay would have an adverse effect on the various
parties who have an interest in the proceedings:
Those
individuals who have an interest in the property and seek to have it
excluded from the proposed forfeiture order, by taking
advantage of
the ‘innocent owner’ defence.
Also
the accused, who has an opportunity to show that the property is
probably not an instrumentality or the proceeds of unlawful
activities,
And
the state which is burdened with the cost of curatorship.
The
“application for a stay of proceedings”
[7] The
application by the respondent for a stay of the civil proceedings,
pending the outcome of the criminal proceedings against
him in the
Cape Town Magistrates court was raised in a supplementary affidavit
delivered out of time. There are three pertinent points
that can be
made in this regard.
[8] Firstly,
there was no formal application for a stay and as such it is not a
competent application. Mr Mihalik admits in his supplementary
heads
of argument that there is no ‘formal’ application for a stay but
asks the court to exercise a discretion in the matter.
[9] Secondly,
the fact of the matter is that the respondent had already elected to
file a comprehensive answering affidavit in which
he deals with the
facts asserted by the Applicant. Furthermore, at no stage in his
affidavit in which the stay is sought does the
respondent suggest
that, in order to deal with the Applicant’s supplementary
affidavits he will be compelled to incriminate himself
before the
state has produced evidence in the criminal trial. In any event, an
application for the stay of civil proceedings pending
the
determination of related criminal proceedings will only be granted in
those cases where the accused is under a legal compulsion
to give
evidence in the civil proceedings. A legal compulsion must be
distinguished from pressure to testify in civil proceedings
in order
to rebut incriminating evidence.
8
[10] Even
in cases where the accused is legally compelled to incriminate
himself in civil proceedings before the state has produced
its
evidence in the related criminal proceedings, which is not the case
in the present matter, the courts have not generally suspended
the
civil proceedings. Instead the criminal court could order that the
relevant element of compulsion not be implemented.
9
Should the accused believe he has suffered an infringement of his
right against self-incrimination he can rely on section 35(5) of
the
Constitution in the criminal trial. It will be up to the trial court
to ensure compliance with fair criminal standards, this
may involve
finding that any derivative evidence
10
is excluded because it was found as a result of compelled testimony.
11
[10] The
third point is that the respondent cannot be allowed to rely on the
potential loss of an ill-defined ‘tactical advantage’
at criminal
trial to escape responding to matters pertaining to the civil
proceedings.
12
Thus, as was pointed out by Navsa J in the
Seapoint
case it is a matter
not of compulsion but of choice, “hard as the choice may be, it is
a legitimate one”
13
which the respondent in this matter is called upon to make. In
Nedcor Bank v
Behardien
2000 (1)
SA 307
(C), Cleaver J approved of the view expressed by Nugent J in
the
Davis v Tip
case that,
“
civil
proceedings invariably create the potential for information damaging
to the accused to be disclosed by the accused himself,
not least so
because it will often serve his interests in the civil proceedings to
do so. The exposure of an accused person to those
inevitable choices
has never been considered in this country to conflict with his right
to remain silent during the criminal proceedings…….the
preservation of the applicants rights lies entirely in his own hands,
and there is no such element of compulsion. What the applicant
seeks
to be protected against is the consequence of the choices he may be
called upon to make.”
14
[11] In
principle then in every such case where civil and criminal
proceedings are instituted by the same activity the respondent
is
called upon to make a tough choice. He must weigh up the consequences
and resolve the ‘dilemma’ in which he finds himself.
15
The respondent in this matter clearly made his choice by filing a
comprehensive answering affidavit. Accordingly no good grounds
have
been made out for suspending the civil proceedings.
The
Applicants’ case
[12] The
applicant in this matter seeks a forfeiture order against the
respondent owner of a property, which the applicant contends
has been
used in several drug-related offences. The applicants allege that the
respondent ‘was using the property in an attempt
to manufacture a
Schedule 2 drug under the
Drugs and Drug Trafficking Act No 140 of
1992
, as well as for the possession of and dealing in prohibited
substances.’ The applicant argues that the property was
‘instrumental
in the commission of the following offences’ -
contravention
of section 3 of the Drugs Act, Section 3.
Manufacture
and supply of scheduled substances
– no person shall manufacture any scheduled substance or
supply it to any other person,
knowing or suspecting that any such scheduled substance is to be used
in or for the unlawful manufacture
of any drug. In that respondent
manufactured 1-phenyl-2-propanone, a scheduled substance, (defined in
Schedule 1 of the Drugs Act
as one of the ‘substances useful for
the manufacture of drugs’) with the intention to use it in the
manufacture of a drug, namely
methamphetamine.
Contravention
of section 4(b) of Act 140 of 1992, read with section 1(1) (xxvii),
in that respondent was found in possession of
phenyl acetic acid,
(defined in Schedule 1 of the Drugs Act as one of the ‘substances
useful for the manufacture of drugs’),
1-phenyl-2-propanone and
methylamine. Section 4(b) prohibits the possession of any
“undesirable dependence producing substance.”
Section
1(1)(xxvii) defines this as “any substance from which a substance
can be manufactured included in Part III of Schedule
2 of the drugs
and Drug Trafficking Act.
Contravention
of section 5(b), read with sections 1(1)(iii), 1(1)(xiii) and
1(1)(xxvii) of the said Act, in that respondent dealt
in an
undesirable dependence producing substance.
‘
Deal
in’ is defined in s1(1)(iii) as including “performing
any act…with the shipment,
importation…….manufacture, supply……..of the drug.” Section
1(1)(xiii) defines ‘drug’ as
“any dependence producing
substance or any undesirable dependence producing substance.” As
methamphetamine is listed in Part
III of Schedule 2, by virtue of
s1(1)(xxvii) phenyl ascetic acid and 1-phenyl-2-propanone are within
the definition of “undesirable
dependence producing substance.”
Accordingly both the importation of phenyl acetic acid and the
manufacture of 1-phenyl-2-propanone
puts respondent firmly within the
definition of having dealt in an undesirable dependence producing
drug.”
[13] The
applicant’s case was founded on the affidavits of Captain Smit, a
narcotics investigating officer and Caspar Venter a forensic
analyst
with the South African Police Services with eleven years experience
and at least a basic knowledge of ‘clandestine laboratories.’
Smit is the designated officer in the Western Cape area for the
chemical monitoring programme of the South African Narcotics Bureau.
This programme monitors the import and export of 24 chemical
substances, identified as useful in the manufacturing of illicit
drugs.
Smit received information about the importation of phenyl
acetic acid, without the necessary ‘end user declaration.’ Phenyl
acetic
acid is a substance listed in Part II of Schedule 2 of Act 40
of 1992 and can be used in the manufacture of methamphetamine. Smit
and his colleagues observed the chemicals being handed over to the
respondent at 20h30 on the 30 January 2001 and then they followed
him
to the property in Woodstock.
[14] The
following day, 31
st
January 2001, the respondent was followed to Litechem Pharmacy where
he purchased distilled water and caustic soda. According to
Venter’s
affidavit distilled caustic soda is needed in the final stages of
manufacturing methamphetamine. Smit then obtained a
search warrant to
search the property. He and his colleagues requested access to the
property but were unsuccessful and they forced
open the front and
back doors. Upon entering the property Smit heard the sound of
breaking glass at the back of the house. He discovered
in a toilet
bowl broken glass and a yellow brownish fluid. This was analysed by
Venter who identified it as 1-phenyl-2-propanone,
which is an
ingredient that can be used in the manufacture of methamphetamine.
The police discovered a small room adjacent to the
kitchen fitted
with an extractor fan, and containing other equipment such as a
magnetic stirrer, hot plate and vacuum sealer, which
it is alleged
was being used as ‘a clandestine laboratory’ to manufacture
methamphetamine. They also found a hand-written “recipe”
detailing the process for purifying 1-phenyl-2-propanone. Venter
found a flask containing a small quantity of what he later
established
was chilled methylamine in the kitchen, which apparently
is combined with 1-phenyl-2-propanone to produce methamphetamine.
They also
found other items that could be defined as laboratory
apparatus, as well as literature relating to chemical processes and
chemicals
in the ‘mini laboratory’ and also in the room connected
to the ‘laboratory’, which Smit refers to as the ‘old kitchen.’
The
Respondents case
[15] Respondent’s
version of events is that he is an ‘amateur chemist’ and
possesses a particular personal interest in conducting
chemical
experiments. He claims to have inherited this interest in chemistry,
along with all the laboratory equipment, literature
and chemicals
found at the property from his brother.
[16] He
admits to ordering and collecting the phenylacetic acid and
methylamine and taking it to the property, but denies knowing
that it
was purchased under an assumed name. He contends that he dropped the
glass container in the toilet from the shock of the
police forcibly
entering the property. He denies that the substance in the toilet was
1-phenyl-2-propanone but states that if it
was, it was too small an
amount to make him an illegal drug manufacturer. He contends that the
presence of this particular combination
of chemicals
per
se
on his property
did not mean that he was manufacturing methamphetamine. He stated
that the room adjacent to the ‘old kitchen’
was the place where
he conducted his ‘informal chemical experiments.’ He denies
knowledge of the hand-written recipe and denies
that it was found on
the table in the ‘old kitchen’. He also rejects Venter statement
that he found a flask containing methylamine
in the kitchen fridge.
The
expert evidence
[17] A
point
in
limine
raised by Mr Mihalik argues that Venter’s evidence as a forensic
expert cannot be received by the court, because Venter failed
to
quality himself in relation to the techniques and measuring
instrument he used in his analyses. However, these proceedings are
explicitly civil, indeed the Respondent concedes that the application
is in nature a civil one. Consequently the criminal burden
of proof
does not apply. What does apply is the general approach by courts in
civil proceedings to expert opinion evidence. This
allows for more
flexible criteria in determining whether the expert possesses the
necessary skill, training and/or experience.
16
[18] Venter
attests to his position and qualifications and describes the
techniques he applied and affirms their internationally accepted
status. He states that he applied “n proses wat bedrewenheid in
skeikunde vereis” and describes the two techniques he used. No
contrary facts or expert testimony is put up against which that of
Venter is to be measured. There is no reason to doubt the veracity
of
Venter’s conclusions or the accuracy or reliability of his analyses
or that of the measuring equipment used in the analytical
process.
[19] Against
this factual background it must be determined whether on a balance of
probabilities the property concerned falls within
the definition of
an instrumentality of an offence.
An
instrumentality of an offence
[20] A
number of recent judgements have examined the term “instrumentality
of an offence.”
17
The dictionary meaning of instrumentality is “a thing employed for
a purpose or end; a means.”
18
The term is defined in the Act as ‘any property which is concerned
in the commission or suspected commission of an offence at any
time
before or after the commencement of this act, whether committed
within the Republic or elsewhere.” In the
Carolus
case Blignaut J focused on what he perceived was a lack of clarity in
the use of the words “which is concerned in.” In the view
of the
learned Judge a restrictive interpretation was called for,
“
a
property would only qualify as an instrumentality where it has been
used as a
means
or
an instrument
in the
commission
of
the offence, or where it is otherwise involved in the commission of
the offence”
19
[21] In
the unreported case of 2000/12886
NDPP
re Application for Forfeiture of property i.t.o. sections 48 and 53
of Act 121 of 1998
,
Stegmann J remarked at para 12 that “evidence of some closer
connection than mere presence on the property would ordinarily be
required in order to establish that the property had been ‘concerned
in the commission’ of the offence.” It is not sufficient
for the
offence merely to have been committed on the property.
20
The Oxford English Dictionary defines the word ‘concerned’ as
‘involved, interested’ suggesting the need for a direct
connection
to the offence.
[22] Civil
forfeiture in South Africa is based largely on statutory provisions
in the USA and New South Wales in Australia. The Australian
approach
in New South Wales provides for forfeiture orders for ‘tainted
property’, used in, or in connection with the commission
of a
serious offence. This has been interpreted by the courts as meaning
that “there must be a relationship between the commission
of the
offence and the property in question. That relationship need not be
substantial or direct, but the need for a connection poses
questions
of proximity and degree….and this is essentially a question of
fact.”
21
It becomes more difficult where the property is merely the place
where the offence was committed. Merely being the
locus
in quo
and nothing
more would not be sufficient. Ultimately, O’Keefe J in the King
Case held that when it came to tainted property “some
activity
connected with the relevant crime must have involved the utilisation
or employment of the property with the aim or purpose
of committing
or furthering the commission of the crime in question.”
[23] In
the United States ‘forfeitures are designed primarily to confiscate
property used in violation of the law, and to require
disgorgement of
the fruits of illegal conduct’ (
United
States v Ursery
,
[1996] USSC 69
;
518
US 267
(1996.) The US in particular has had extensive experience with
civil forfeiture. American case law may therefore be usefully studied
comparatively. In rem forfeiture in the US has traditionally been
based on the theory that the property is guilty of an offence.
Consequently “it is the property which is proceeded against, and,
by resort to a legal fiction, held guilty and condemned as though
it
were conscious instead of inanimate. (
Various
Items of Personal Property v United States
[1931] USSC 55
;
282 US 577
, 581 (1931.) This approach, however, could not justify the
civil forfeiture of the instrumentalities or the proceeds of crime.
[24] Generally
the US courts have adopted either the ‘instrumentality test’
22
or the proportionality test or one that combines both of these. In
terms of the instrumentality test the forfeited property must
have a
sufficiently close relationship to the illegal activity. In order to
determine this the following factors must be examined:
23
the
nexus between the offence and the property and the extent of the
property’s role in the offence
the
role and culpability of the owner
the
possibility of separating offending property that can readily be
separated from the remainder.
[25] However,
the potentially harsh results of the instrumentality test when
applied alone, have made some courts hesitant to accept
it as the
sole test and some have favoured the adoption of a proportionality
test. There has been much debate in the US courts about
the need to
subject civil forfeiture to the requirements of the eighth amendment
of the US Constitution dealing with excessive fines.
Hence the
decision to incorporate some aspect of proportionality in determining
whether forfeiture of the property imposes upon the
owner a penalty
grossly disproportionate to his or her offence.
[26] It
is clear that such tests have to be seen in the context of the
differing statutory requirements and standards of proof that
exist in
the US. Unquestionably the law in this area is still fairly
unsettled, with some American courts favouring one test over
the
other and others settling on a ‘hybrid approach.’ However, the
American and Australian approaches do provide some guidance
in the
process of determining the type of relationship that needs to exist,
between the property to be forfeited, and the crime in
question. The
essential element that emerges is the idea of a ‘nexus’
connecting the property to the unlawful use and consequently
‘tainting’ it. The determining question is whether the
confiscated property has a close enough relationship to the offence
to
render it an ‘instrumentality.’ The critical question to be
addressed here is whether on the facts presented to this court the
property situated at 54 Balfour Street, Woodstock can be categorised
as an instrumentality?
[27] The
facts of this matter dispose the court to believe that on a balance
of probabilities the property in question was in fact
an
instrumentality of the offence.
The
respondent admits to ordering the phenylacetic acid and methylamine.
This was done using a false name and through another party.
It can
be inferred from this action that this was an attempt to conceal the
connection between the respondent and the chemicals.
These chemicals
were then transported to the property
There
was evidence through the forensic tests conducted by Venter that
1-phenyl-2-propanone had been manufactured on the premises
and that
methylamine was stored in the fridge. Clearly an attempt had been
made to dispose of the glass container containing the
1-phenyl-2-propanone in the toilet and respondent failed to provide
an adequate explanation for this event or for the existence
of that
particular chemical or to suggest an alternative substance that it
could be.
At
no stage was the respondent prepared to confide to the court details
of the innocuous chemical experiments that he claims to
have been
conducting. His claim that he was experimenting with ‘formulas
that did not make sense’ simply because it was ‘stimulating,
exciting and therapeutic’ is unconvincing. Furthermore, it is
highly improbable that someone would go to the trouble of ordering
specific chemicals, such as phenylacetic acid and methylamine
without having a clear idea of what they were going to be used for.
It
is clear that the following chemicals which were found on the
property, phenylacetic acid, methylamine, 1-phenyl-2- propanone,
piperidine, acetone and benzene are in fact pre-cursor chemicals
used in the production of methamphetamine. Phenylacetic acid,
piperidine and 1-phenyl-2-propanone are scheduled substances in
terms of the Drugs Act (substances useful for the manufacture of
drugs). On a balance of probabilities there is evidence that the
property was being used to manufacture a scheduled substance in
terms of s3 of the Drugs Act, namely 1-phenyl-2-propanone, with the
intention that this would be used in the unlawful manufacture
of an
‘undesirable dependence producing substance’ namely
methamphetamine.
At
no stage was an adequate explanation or convincing evidence provided
for the presence of the specific combination of chemicals
found at
the property or for the equipment set up in the ‘mini laboratory’
and the ‘old ‘ kitchen.
It
is clear that in light of the evidence and on a balance of
probabilities the property was ‘concerned in’ the commission of
the offences. It was a place to store the chemicals, rooms on the
property were being used to process, refrigerate and ‘synthesise’
these chemicals, into what on a balance of probabilities was
methamphetamine. The property cannot be divorced from these acts,
it was an integral part, an instrumentality.
Concluding
remarks
[28] There
is no doubt that civil forfeiture is a controversial mechanism but it
has been accepted by many nations as a legitimate
law enforcement
tool to combat serious crime. Forfeiture both prevents further
illicit use of the property and imposes an economic
penalty, thereby
rendering illegal behaviour unprofitable. It has been argued that
South Africa has managed to avoid some of the
worst of the US
forfeiture laws by providing for an ‘innocent owner’ defence and
recourse to appeal.
24
The Constitutional Court has referred to the “important public
interest objectives of the Act.” Various international instruments
deal with the problem of international crime in this regard and it is
now widely accepted by the international community that criminals
should be stripped of the proceeds of their crimes
25
,
the purpose being to remove the incentive for crime. This approach
has similarly been adopted by -our legislature.
26
[29] It
is clearly essential that at no stage should the effects of civil
forfeiture be treated in a “predetermined, mechanistic
manner –
the rationality, fairness and justifiability of each case should be
judged on its own merits and treated accordingly.”
27
It is critical in this regard that a balance is struck “between the
public interest in effective crime fighting and the interests
of
private property owners
affected
by forfeiture laws.”
28
[30] There
is, however, a growing concern about the way major and minor
drug-related crime continues to threaten and effect the every
day
lives of ordinary members of the community. The type of synthetic
drug involved in this case gives particular cause for concern
because
it appears to be relatively easy to manufacture and thus is ideal for
production in ‘clandestine laboratories’ in residential
areas.
All efforts must be made to deter illegal activities that contribute
to neighbourhood deterioration. Ultimately, civil
forfeiture
seeks “to neutralise property that has been involved in the
commission of offences. This provides sufficient reason
for the
deprivation of property, which is the purpose of a forfeiture
order.”
29
[31] The
applicant’s application for a forfeiture order of the property
should be granted.
[32] In
terms of section 50 of the Prevention of Organised Crime Act, no 121
of 1998 (the Act) it is ordered that:
1) the
property being Erf no 14241m situated at 24 Balfour Street,
Woodstock, Cape Town (the Property) and which is presently subject
to
the Preservation of Property Order granted by this Honourable Court
on 28 June 2001, is forfeited to the State,
2) It
is further directed that the property shall vest in the State upon
the grant of the Forfeiture Order and that Ivan Malcolm Ross
of Bill
Rawson Countrywide who was appointed
curator
bonis
in terms of
section 42 of the Act does the following:
2.1 dispose
of the immovable property situated at 54 Balfour Street, Woodstock,
Cape Town by sale or other means and deposits the
proceeds thereof
into the Criminal Recovery Account subject to the following
conditions:
the
amount which is owed to the bondholder, First National Bank, shall
be paid to them in full, or
if
the proceeds of the sale is less than the amount owed to the
bondholder, then the bondholder will be paid the full proceeds
of
the sale.
[33] Respondent
to pay the costs, which costs to include the costs of two Counsel
where such were employed.
____________________________
N
C ERASMUS J
1
MJ
Cowling, Fighting organised Crime: comment on the Prevention of
Organised Crime Bill 1998, (1998) 11 SACJ 350.
2
See
preamble to
Prevention of Organised Crime Act, 121 of 1998
.
3
National
Director of Public Prosecutions v Mohamed NO and others
,
Constitutional
Court
2002
(4) SA (CC) 843 at 851, para 16C-D.
4
4
National Director of Public Prosecutions v Mohamed,
supra at
851, para 17F-G
5
S37.
Proceedings
are civil, not criminal
–(1)
For the purpose of this Chapter all proceedings under this Chapter
are civil proceedings, and are not criminal proceedings.
(2)
The rules of evidence applicable in civil proceedings apply to
proceedings under this Chapter.
(3)
No rules of evidence applicable only in criminal proceedings shall
apply to proceedings under this Chapter.
(4)
No rule of construction applicable only in criminal proceedings
shall apply to proceedings under this Chapter.
6
S50(4)
provides; “the validity of an order under subs (1) is not affected
by the outcome of criminal proceedings, or of an investigation
with
a view to institute such proceedings, in respect of an offence with
which the property concerned is in some way associated.”
7
National
Director of Public Prosecutions v Mohamed NO and others
,
Constitutional Court -
2002 (4) SA (CC) 843 at 851, para
16B-C
.
8
Nedcor
Bank Ltd v Behardien
2000 (1) SA 307
(C) at 311H-315A.
9
Davis
v Tip NO and Others
1996 (1) SA 1152
(W) at 1157E-H. See also
Seapoint Computer Bureau v Mcloughlin and De Wet NNO
1997 (2) SA 636
at 648 where the court observed that “a court
weighs all the facts and circumstances to determine whether
prejudice might attach
to the accused person if the civil
proceedings were to continue. Once potential for prejudice is
established, the court will stay
proceedings or find a formula for
preventing prejudice, such as, in appropriate cases, ruling that
information obtained should
not be subsequently disclosed, or
barring the use of compelling or co-ercive measures.”
10
Mitchell
& Another v Hodes No and Others
,
CPD case no. 3584/02 l, at 51. Ultimately “it will be the duty of
the trial judge to ensure a fair trial, if necessary by the
exercise
of his or her discretion, to exclude, in appropriate circumstances
to some or all of such derivative evidence.”
11
Mitchell
,
supra at 55
12
Mitchell
,
supra at 60-61,67-68 where the court held that the civil proceedings
were of such significance (an interrogation in terms of s417
of the
Companies Act, 61 of 1973) that to grant the relief sought by the
applicants would “effectively stultify the purpose which
the
statutory mechanism of the winding up enquiry is intended to
achieve.” The learned Judges went on to argue that s417 enquiries
have “extremely important public policy objectives” and thus the
applicants in the matter could not rely on the potential loss
of an
ill defined tactical advantage at their criminal trial.
13
Seapoint
Computer Bureau v Mcloughlin and De Wet NNO
1997 (2) SA 636
at
647F-I and 649G-I
14
14
Nedcor Bank Ltd v Behardien
2000 (1) SA 307
(C) at 313G-314H.
15
Equisec
(Pty) Ltd v Rodriguez and Another
1999 (3) SA 113
(WLD) at 115A-B
16
Joubert,
Law
of South Africa
vol 9 (first re-issue) 1996 para 507, “it is not generally a sine
qua non that an expert must have had theoretical training or
practical experience: his qualifications must be measured against
the evidence he has to give in order to determine whether they
are
sufficient to enable him to give relevant evidence.”
17
The
National Director of Public Prosecutions v Carolus and Others
1999
(2) SACR 27
(CPD) at 39f-j;
National Director of Public
Prosecutions v Patterson
[2001] 4 All SA 525
(C) at 529;
National Director of Public Prosecutions v Seevnarayan
2003
(2) SA 178
(CPD) at 188 –190.
18
See
The New Shorter Oxford English Dictionary (2cnd ed 1994) p1385.
19
National
Director of Public Prosecutions v Carolus and Others
1999 (2) SACR 27
(C) at 39g-h.
19
20
National
Director of Public Prosecutions v Patterson and Another
[2001] 4 All SA 525
(C).
21
Director
of Public Prosecutions (NSW) v King
[2000] NSWSC 394
at para 14.
22
As
advocated by Justice Scalia in his concurring opinion in
United
States v Austin
,509 US at 628. Providing that a close enough relationship can be
said to exist then neither the value of the property nor the
culpability of the owner are of any significance.
23
The
court in the case of
United
States v Chandler
,
[1994] USCA4 2075
;
36 F.3d 358
(4
th
Circuit 1994) accepted this property-offence nexus and expanded on
it. In measuring the strength and extent of the nexus between
the
property and the offence, the court held that it may also take into
account the following:
whether
the use of the property in the offence was deliberate and planned
whether
the property was important to the success of the illegal activity
the
time during which the property was illegally used
whether
its illegal use was an isolated event or had been repeated
whether
the purpose of acquiring, maintaining or using the
property
was to carry out the offence.
24
Jean
Redpath Forfeiting Rights? Assessing South Africa’s asset
forfeiture laws (2000)
African
Security Review
,
Vol9 No 5/6
25
See
the United Nations Convention Against Illegal Traffic in Narcotic
Drugs and Psychotropic Substances, adopted on the 19
th
December 1988 in Vienna; United Nations Convention Against
Transnational Organised Crime, Palermo, December 2000.
26
National Director of Public
Prosecutions v Mohammed
NO
[2002] ZACC 9
;
2002 (4) SA 843
(CC) at 851A-B
27
AJ
Van der Walt Civil Forfeiture of Instrumentalities and Proceeds of
Crime and the Constitutional Property Clause
(2000) 16
SAJHR
1
at 45
28
Ibid
28
29
Mohammed
NO v National Director of Public Prosecutions
2003 (1) SACR 286
at 306, para 57d-e.
24