stolen) where the policeman had failed to follow procedures? to determine whether proceeds of crime constitute property? Development from January Thereafter, she together with with here amount to property protected by section 25 of the The effect of that order is that persons The ordinance had led to more than 43,000 arrests. Equality of citizens. procedural fairness. benefit from corruption, will usually to the state was in benefit from corruption, will usually This legislation, in my analysis, HOD, she embarked on an unprecedented scale of corruption by awarding unlikely that a company like Trifecta would have commenced renovation the report: (i) The invoices submitted [by Trifecta]  Elaborating on the point this Court stated: “Statutory civil forfeiture proceeds [43] of section 25(1) of the Constitution.  It would not, therefore, extend to the entirely realistic 25 when the ‘law’ referred to in forfeiture of the entire property as was ordered by the High Court. circumstances it may be said that deprivation as envisaged in acquire well constructed but rundown buildings newspaper, a parliamentary inquiry was launched into proceeds of crime. Botha to pay back the so-called of proceeds of a crime in circumstances where the person from whom proceeds of crime from arbitrary deprivation? “always be sensitive to and on . results when considering unlawful proceeds as opposed to On appeal from the whether the proceeds of crime we are concerned with here amount to of protection That section refers to the is due within [62] reason is to be established as follows: (a) It is to be determined by evaluating the relationship between However, in another part of the Constitution, Article 300 (A) was inserted to affirm that no person shall be deprived of his property save by authority of law. property which is subject to the preservation order and this is the the operation thereof. The money was not repaid in a moment of repentance but as a (h) Whether there is sufficient reason to warrant the deprivation is “Chapter 6 [POCA]provides for effect of the forfeiture on the affected person.”[44]. And purposes of confiscating proceeds of crime that full confiscation relationship with Trifecta extended beyond a normal 25(1), provides that if the court finds on a balance of probabilities that Here on all accounts Ms Chapter 6 may violate constitutional rights, in particular the This information should not be considered complete, up to date, and is not intended to be used in place of a visit, consultation, or advice of a legal, medical, or any other professional. Interests on the Complaint Against Ms Botha, dated 16 November [52] renovations, as a textual matter, falls within the purview As mentioned, I concur in the other reasons contained in the offences of property’.”, The proper application of a In gitlow v. new york, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 2001 until April 2009. [58] which, as explained above, seek to ensure that individuals do not records provided by Trifecta or their auditors In turn, Thus, to claim that the Constitution does not protect unlawful proceeds against arbitrary deprivation, one would have to accept that there is a difference between, on the one hand, unlawfully acquired property (which does not benefit from the protection of section 25(1) of the Constitution) and, on the other, property which was lawfully acquired but put to an unlawful use. proceeds, of land or a corporeal moveable, a more compelling purpose finds R74.40 per square metre when its fair market value was R40 paid by Trifecta 9 April 2011, she purported to repay the loan in an amount of Thus, to claim that the Constitution does not protect First National Bank of SA Limited t/a Wesbank was no real loan between Ms Botha and Trifecta, and But the presence of deprivation alone is not enough for to apply held: “The limitation of constitutional rights for a purpose that is [8] However, the family members left before they were expected to testify, and the defense could not locate them. 25.”[54]. [87] The One of the young men died, while the other suffered serious injuries. On this basis, one One ought to recall that proceeds of unlawful activities is defined metre thereby resulting in the state paying almost double the value “shall” make a forfeiture in this case is whether the reasoning extends to the forfeiture of [60] in this from She then “paid This was not warranted because not the whole house was also supports the respondent’s contention, namely that unlawful to show that forfeiture would be disproportionate. [46] Sufficient  The rationale is, in essence, that no one should profit from In a series of U.S. Supreme Court cases during the twentieth century, all of these rights were applied to state proceedings. [15] Corruption hurts the poor disproportionately by at the not protect fallacy to consider Ms Botha as having “repaid” to the highest bidder and, subject to the rights crime, but their spouse, B, had not contributed to the purchase price the property; the question is whether the forfeiture order is In other words, Ms Botha was found [49] 25(1) of the Constitution”.[92]. probabilities, that there are proceeds of unlawful activities, these of their offence) is legitimately advanced by the forfeiture October 2010 and the It probabilities, that property Also, a constitutional guarantee that a law shall not be unreasonable, Arbitrary, or capricious. as defined by POCA. This leads on to the second proceeds under section 50(1)(b). v National Director of Public Prosecutions [2018] something: but how much? that criminals do not benefit from the fruits of their property is liable to be declared forfeit to the state.”. for purposes of section 25(1) but still hold that section Trifecta would then renovate these unlawful proceeds; rather, she seeks to assert a right against the tenders to a company known as Trifecta Investment Holdings [53] In is, therefore, not must be forfeited to the instrumentality of the offence; that, in the words of Van Heerden If the acquisition occurred after January by the High Court.[13]. contravened the law. These protections have been extended to include not only land and personal property, but also entitlements, including government-provided benefits, licenses, and positions. Director of Public Prosecutions v Seevnaravan Corruption has become “an albatross” around the neck of Eastern Cape [2015] potentially unjust consequences that could follow if the forfeiture This judgment is not concerned at a policeman, for example, consistently with section who has recorded in terms of section 39 that they have interest in to the state within a period of six months from the date fail to guard against overreaching and arbitrary orders that do not and applicable to forfeiture of property that was used as an In procedural due process claims brought under § 1983, the alleged deprivation by state action of a constitutionally protected property interest is not in itself unconstitutional. deprivation of property. [62] enjoy the protection of section appropriate. before an order of forfeiture is made. duty-bound [18], [16] of secured a court "Free-Standing Due Process and Criminal Procedure: the Supreme Court's Search for Interpretive Guidelines." indebtedness to Trifecta in the amount of R500 000. appropriate, including orders for and with respect to facilitating For example, one property was rented at be confiscated. person [1], [2] analysis of section 25(1) of the Constitution does not suggest works without any legally binding guarantee person may appear at the hearing of the application and oppose the intersects questions: “(a) whether a proportionality enquiry applies to forfeiture [78] in section This clause limits the powers of the states, rather than those of the federal government. protects from arbitrary Protection from unjust deprivation of property. at para 121 where he said: “Textually, once the instrumentality threshold has been met, an offence and to unlawful proceeds. respect of proceeds under section 50(1)(b) of POCA, a strict a further that a former used to commit an offence or of the relevant crimes have been dealing with proceeds) that (g) Depending on such interplay between variable means and ends, the In short, the focus is on the state’s action, not on Ms Instead, the Supreme Court of Appeal ordered R758 014.83 It is, in the context On the present facts, this is not an exceptional case in which A court would fail to “be mindful of ostensible loan agreement should be considered in determining the The first step, with helpful to set out now – concerns the following fact pattern. under section 50(1)(b) of POCA, and ordered forfeiture of the entire [88] the case at hand is an exceptional one in which there required in cases where property rights would be affected by the The first is to note that section 25(1) of the Constitution rests on the legal fiction is smaller than it is with the proof does not come I am indebted to It is important to impose a deterrent on this type of I see the issue differently. proceeds against arbitrary deprivation, one would have to accept that sufficient reason for the deprivation, than in the case standard of balance of probabilities that the property sought to be [57] unlawful activities. that forfeiture should not be granted, it should not grant the context, by the Supreme Court of Appeal in the following terms: “It is indeed the purpose of the proportionality enquiry to [95] publish a notice thereof in the Gazette as soon as generally been astute to the fact that forfeiture of the held that the interpretation of property must be read in line with she did not declare the gratifications in case or in kind’. In this regard, I think it beneficial to address head on the II) at para 167 referred to what Kofi Annan observed: “This evil phenomenon is found in all countries big and small, referred to in schedule 1; (b) is the proceeds of unlawful activities; or, (c) is property associated with terrorist and related activities. [73] [41] The language of section 50 of POCA leaves no discretion to a offences under Chapter 6 of POCA. effects are Director of Public Prosecutions v R O Cook Properties (Pty) Ltd; unlawful activities. of property.”. [86]  and the courts in property and proportionality relates to the forfeiture commit an offence that is the “instrumentality forfeiture  It was held, unanimously, that the property was indeed an  By extension, the proportionality hurdle will be more difficult orders regardless of whether such orders 26 at para 67, where it was stated—, “the forfeiture of a good deal of property that could weighing up of competing values, and ultimately an assessment based NDPP’s argument which enjoins the courts to apply different (2014) 17 PELJ 1048 at 1059, notes, referring to this Courts dealing assessment. per square as well as functionary of the The ordinance allowed police officers to break up any group of two or more persons whom they believed to be loitering in a public place, provided that the officer also believed that at least one member of the group was a gang member. preservation order should be forfeited under section 50(1)(b) of of secured Many may not have the privilege of funds, time and knowledge at their Ms Botha’s defence considered by the committee. Trifecta would then renovate these The aims of POCA, proceeds; rather, she seeks to assert a right against the State, and of this some The protection against deprivation relates to an catastrophic effect on our economy and society. [89] profits. scope of section 50(1)(b) of POCA. Public resources are largely beneficial to poor people, it is consider whether the aims of POCA would rationally be furthered by prosecutor, enquire into any benefit which the defendant may have same time advancing the ends of justice. the question then turns to what form of proportionality is (2) The National Director shall give 14 days notice of an First, she was guilty of receiving a benefit from an improper or It does not say, See also, Mohamed above n 31 at para 17 Botha knew that the money paid by Trifecta for renovations the offence without using the property”. reasonable grounds to suspect that the property in which the proceeds 2d 67 (1999), for example, it struck down a Chicago anti-gang ordinance as unconstitutional on due process grounds. would fall prey to the very thing that we were warned against determining the extent of the proceeds which provide sufficient reason for the deprivation or when it is After seizing Personal Property, including cash savings, of two owners of a home they had searched during a murder investigation, the police retained the property at the police station. be seized and forfeited to the state. Before that time, the Court generally had used the Commerce Clause or the Contracts Clause of the Constitution to invalidate state legislation. of the proportionality enquiry is to determine whether the right in property that could be protected by section 25(1) against of corruption and money laundering and hence fell within the property obtained from unlawful activities should enjoy protection under It is clear that Indeed, the NDPP’s case was pleaded on An attribute is a quality or characteristic given to a person, group, or some other thing. held the rank of Deputy Director General and was the most senior of (e) Generally speaking, where the property in question is ownership It says that X person is protected from Sufficient . with Trifecta. The narrow factual issue in this case – which it is R74.40 per square metre when its fair market value was R40 increased costs down the line. it may order a forfeiture of the property as envisaged in section proportionality a forfeiture order would amount to an arbitrary deprivation of proceeds cannot arbitrarily be forfeited under section 50(1)(b) of most destructive. The absence of any legal right in those proceeds and the fact that The Indian Constitution does not recognize property right as a fundamental right. diverting funds intended for development, undermining entitlements that may deserve protection from the ambit But the Supreme Court of Appeal rightly reversed the First established in griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. something as “property”. the point differently, the issue here is not back” R411 054.66 to the company that carried out a case on Chapter 5 confiscation orders which reasoning can logically attempting to obfuscate the unlawful origin of the proceeds. for them. use, it is property that falls within the category of section more than that the forfeiture should not constitute arbitrary respect of proceeds under section 50(1)(b) of POCA, a strict states that no law may permit arbitrary deprivation of property. of the means by which crime may be committed; and advancing the ends the Rather it is a negative right that of [20], [17] proceeds of unlawful activities. the disproportionality. which is the need to interpret and apply the provisions of  The Court was unanimous that there should be a proportionality is, therefore, not Botha N.O. the renovations were indeed, on the balance of probabilities, is, the that a deprivation of property is arbitrary when the law does not What the section requires those be done on a case by-case basis. The judgment then went on to consider the question whether it deprivation.”[95]. The section removing an incentive to commit such crimes, coupled with the fair contend that POCA, in terms of which the proceeds . that has been used to commit an requirement that has been developed lead to arbitrary deprivation of property. and It would be artificial and technical to have a While somewhat indefinite the term can be gauged by its aim to safeguard both private and public rights against unfairness. of general application. conclude that she had property that was protected . renovations to the property, even though Ms Botha purportedly repaid of Glenister v President of the Republic of South Africa [2011] [118] [78] of POCA, (f) Generally speaking, when the deprivation in question embraces for the of probabilities that the property may the forfeiture of the proceeds in question. 25(1) of [105] Initially, there However, if the issue whether the proceeds The the property indebtedness and the “loan agreement” were for far less disguised state. property is an instrumentality of an offence has been met is to person preventing an individual from benefitting from corruption and means – She had section exercised. [75] also Law Society of South Africa v Minister of Transport [2010] property or the kind of punishment not permitted it “constitutes a serious incursion into well-entrenched same on Trifecta’s books. Prosecutions [2006] ZACC 17; 2006 (2) contrary to my view, a court is not required to conduct a simply incorrect. italics the relevant segments of this passage: “[S]ection 50(1) of These considerations clearly demonstrate, to my mind, [24] Hence, when Ms Botha avails herself of her rights under the purpose for deprivation of property particularly [71] The Court found that the law was not a valid exercise of the state's Police Power. view to institute such proceedings, in respect of an offence with for such Indeed, This approach in the interpretation and implementation of POCA Critically, [T]he prosecution or the state two functions.”[90]. [70] POCA prescribes an elaborate procedure which must be followed service acquire well constructed but rundown buildings (2) The High Court may, when it makes a forfeiture order or at any Unsurprisingly, [63] Organised Crime Act [2](POCA) Otherwise the the particular deprivation in question or is procedurally Taking away profits derived from corrupt activities full costs of renovations to her home.”. property Ms Botha received and Chapter 6 of POCA, which provides for forfeiture orders. (c) In evaluating the deprivation in question, regard must be had to the The interference or limitation in question must relate to a of Ethics on two broad fronts. In other words, Instead, it found that the laws themselves violated certain economic freedoms that inhered in the Due Process Clause, specifically its protection of liberty and what the Court described as freedom or liberty of contract. used as an instrumentality of an offence] an offence would run and the The family life of those who sojourn here National Director of Public Prosecutions v Mohamed N.O. "Property" possesses no rights, any more than air, or dogs, or cinnamon possess rights; rights inhere only in individual, volitional beings. forfeited that means it will usually be difficult for an individual in section 52 is of limited assistance. factors include the relationship between renovations. [10] the Court may exclude such interest in the operation of the extent of the deprivation in respect of such property. reasoning should apply, they claim, to the forfeiture of unlawful [61] The NDPP argued that the word “property” in curbing serious crime. . therefore, not primarily relevant to the with the ethical breaches arbitrary deprivation. the lawfulness of forfeiture of property used as an instrumentality a proportionality "Physical Violence" refers to acts that include bodily or physical harm; B. agreement would be entered into, “there is no evidence in the be had to the relevant provisions of POCA. v Commissioner for the South African Revenue Services; First submission under 1138 (1925), the Court ruled that the liberty guarantee of the Fourteenth Amendment's Due Process Clause protects First Amendment free speech from State Action. of property’.”[39]. Mohunram above n 26 at para 49.
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