Constitutional Court clips the wings of the Assets Forfeiture Unit

The Constitutional Court case of Mohunram and Another vs The National Director of Public Prosecution (NDPP) and Another is a breath of fresh air. It enjoins our courts to be vigilant in the protection of human rights in relation to their properties.

Organised crime is rife in South Africa and throughout the world and government measures to combat it must be welcomed. The Prevention of Organised Crime Act 121 of 1998 (“POCA”) must be seen in this light. However in our efforts as a country to fight crime we must exercise caution to ensure that we do not trample on our hard won human rights.

Our immediate past must always be a reminder to us that excessive executive powers are inimical to the human rights culture to which our country aspires. The Constitutional Court ruling this week in the Mohunram matter, in which the Law Review Project (LRP) acted as the friend of the Court, is a leap forward in entrenching rights-based jurisprudence in SA.

Mohunram, through Shelgate Investment CC, ran an illegal gambling business in contravention of the KwaZulu Natal Gambling Act in the premises that were subsequently forfeited under POCA. These premises were used to run Vryheid Glass and Aluminium, a legal trade and 57 gaming machines without a licence, an illegal trade under the KwaZulu Gaming Act. Mohunran was arrested and charged under the KwaZulu Gaming Act. He pleaded guilty, paid an admission of guilt fine and his gaming machines valued at approximately R285 000.00 were seized and destroyed. The NDPP thereafter launched forfeiture order proceedings in respect of the premises in which he operated his business.

This matter started in the High Court, was then heard in the Supreme Courts of Appeal and eventually leave to appeal to the Constitutional Court was granted. In its intervention the LRP did not seek to raise constitutional objections to POCA but argued that the forfeiture constituted an unlawful and arbitrary deprivation of property under section 25 of the Act and/or a penal deprivation of property that is grossly disproportionate, arbitrary and irrational and that it was also cruel and unusual under the Constitution. The LRP has long maintained that the dichotomy between property and humans is fictitious. Property has no status beyond the fact that someone owns it.

In considering whether POCA offended the property clause in the Constitution in matters beyond organised crime, as in the present matter, the court cautioned that POCA “could result in situations of clearly disproportionate (and hence constitutionally unacceptable) forfeiture, and courts must always be sensitive to and on their guard against this”. The purpose of civil forfeitures under chapter 6 of POCA, among others, was to remove the incentive to commit crime and deter persons from committing crimes. The court held that the deterrence purpose is not without limits.

The Court held that it would be “wrong for POCA to be utilised in a manner which blurs the distinction between the purposes and the methods of criminal law enforcement, on the one hand, and those of civil law, on the other.” The Court further held that, “There is no justification for resorting to the remedy of civil forfeiture under POCA as a substitute for the effective and resolute enforcement of ‘ordinary’ criminal remedies.” This is a clear message that our courts should not lightly encroach on our property rights regime under the guise of dealing with crime. Our focus should be on increasing the effectiveness of the already existing crime combating measures.

The majority decision held that, “Civil asset forfeiture constitutes a serious incursion into well-entrenched civil protections particularly those against arbitrary and excessive punishment and against arbitrary confiscation of property”. That civil forfeiture must always be viewed against the protection of individual rights to property was emphasised. On the facts of the matter it was held that the forfeiture would be disproportionate as Mr. Mohunram had already pleaded guilty, paid the fines and had his machines confiscated

An inclination of the Asset Forfeiture Unit (AFU) to apply POCA in all crimes is noticeable. The LRP argued that POCA should be confined to crime mentioned in the legislation, mainly organised crime, criminal gang activities, racketeering and money laundering. These are crimes in which ordinary crime fighting laws have proven to be inadequate. Extending POCA to crimes such as drunken driving and operating an unlicensed gaming trade involves applying extraordinary measures to ordinary crimes. Justice Sachs cautioned that “the danger exists that if AFU spreads its net too widely so as to catch the small fry, it will make it easier for the big fish and their surrounding shoal of predators to elude the law. This would frustrate rather than further the objectives of POCA”.

Our country has a painful past of arbitrary property confiscation mostly against blacks under apartheid. Our property rights, whilst not absolute, should be regarded as almost sacrosanct. The right to free trade, shelter, and dignity are inextricably interwoven with the right to property.

Author: Langa Bodlani is a researcher with the Law review Project. This article may be republished without prior consent but with acknowledgement to the author. The views expressed in the article are the author's and are not necessarily shared by the members of the Free Market Foundation.

FMF Feature Article 27/03/2007