Briefing

at

Webber Wentzel Bowens

(Johannesburg)

on the

Constitutional Court Judgement

in

Mohunram vs the National Directorate of Public Prosecutions

26 March 2007

Background to the case and why the Law Review Project (LRP)

is concerned about POCA and Asset Forfeiture Unit (AFU)

Summary of presentation

by Leon Louw

Executive Director, Law Review Project

The reason why POCA and the AFU enjoy near-universal support is obvious: all decent people want the government to be “tough on crime”. Predictably, most people welcome reports of the AFU seizing “criminal assets”. The default assumption is probably that various pre-conditions legitimise seizure and subsequent forfeiture, such as that criminality has been proven according to established criminal law criteria, that the assets are known with reasonable certainty to be proceeds or instrumentalities of crime, that there has been due process, including the rule of law, and that “the punishment fits the crime”.

On what grounds might the LRP and the team of lawyers involved, challenge POCA, the AFU or the National Director of Public Prosecutions (NDPP)? Does doing so imply inadequate concern for the rights of the victims of crime? POCA, after all, has stirring language explaining that its principal objective is to fulfil the state’s constitutional obligation to protect people from crime. 

Unfortunately, this, like so many important issues, is not a simplistic binary George Bush-type “if you are not with us you are against us” situation. If you are not for whatever ends supposedly justify the means, it does not follow that one is against the ends, but that one may be for better means. Decency, justice and the Constitution not only require that people be protected from crime but also that they be protected from injustice in combating crime. There are many provisions in the Constitution to that effect, the most important of which is the binding “foundational” provision in Section 1 according to which all law and procedure must comply with the rule of law. There are no free lunches, which in this context means that there are unavoidable trade-offs between human rights and the rule of law on one hand, and the ability of the state to combat crime on the other.

Bluntly put, a democratic human rights order is good news for criminals. Those like the NDPP and AFU responsible for combating crime would be able to do so much more effectively if they did not have to observe the checks and balances necessary to minimise the prospect of injustice. Combating crime in a free and democratic society is a costly, complex and challenging business. The question confronting government and society is to what extent, if at all, human rights should be compromised to this end. Is it possible or desirable to confine criminal justice to uncompromised compliance with democratic and jurisprudential values?

I will not in this brief note elaborate on what the rule of law is. The need to do so is, however, much more significant than generally realised. All respectable people say they are for the rule of law, yet few, even in professional and scholarly circles, are clear on precisely what it means, especially its practical application to the mundane aspects of formulating and enforcing law. Although this is not strictly correct, I use “rule of law” here to include all aspects of established jurisprudence regarding criminal law and procedure, including:

1. Certainty – the need for there to be certainty regarding rights and obligations.

2. Discretionary Power – in accordance with the requirement of certainty, that discretionary power be avoided, and where it is unavoidable, that it be accompanied by (a) articulated objectives and (b) objective criteria for exercising discretion.

3. Prospectivity – also in accordance with the requirement of certainty, that there should be no retroactive law, since that would mean people cannot know with certainty whether what they are doing is lawful.

4. Hearsay – that uncorroborated hearsay evidence should be inadmissible, or admissible only under extreme conditions.

5. Onus – that the burden of proof rests unambiguously with accusers and prosecutors since inter alia proof of innocence should not be required as a matter of justice and is, in any event, disproportionately difficult if not impossible.

6. Double Jeopardy – the requirement that people should be “jeopardised” only once in the absence of extraordinary circumstances, so that the state does not have two or more arbitrary “bites at the cherry”.

7. Due Process – by which all people accused of wrong doing are entitled to be charged, face their accuser and defend themselves in accordance with established jurisprudential criteria such as access to information, cross examination, impartial and independent courts, rights of review and appeal, and the like.

8. Bill of Rights – the Constitution, especially the Bill of Rights provides explicitly or implicitly for all of these and a great deal more checks and balances against injustice, regarding which I would have liked to say that there is no need to elaborate, but unfortunately there is insufficient appreciation of the matter to allow us to neglect the need for vigilance.

9. Separation of Powers – that the executive should be confined to executing laws and policies, not making substantive law or adjudicating; the legislature alone to legislate, and the judiciary to adjudicate. A lack of appreciation of the theoretical and practical reasons for the separation of powers, and why there is no real need to abrogate it, has led to it being compromised almost out of meaningful existence in South Africa, including in aspects of POCA.

The LRP noted with concern, when POCA was a Bill, that it created what Justice Moseneke DCJ during the Mohunram proceedings called “extraordinary powers”, some of which powers appeared to us to compromise or have had the potential to compromise these Rule of Law criteria. Even so, the LRP made no formal submission on its concerns because the Act appeared to be confined, as its name implies, to combating “extraordinary” crime clearly and repeatedly defined in it:

POCA explains that the need for such extraordinary powers is, for instance, that it is often difficult or impossible to identify the orchestrators of “organised crime”, especially that of international syndicates.

If I am not mistaken, the Minister of Justice at the time, Penuell Maduna, was emphatic about POCA being exclusively for those purposes and that it would be resorted to infrequently. I think he said it might not be used for periods as long as two years. In dramatic contrast, AFU head, Willie Hofmeyer, said at a dinner attended by business leaders that the AFU had calculated the value of assets that could be seized and forfeited annually. It did not, he argued, target people, but things (in rem), which have no rights. Whilst I forget the precise figure, it amounted to billions of Rands. It was reported in January 2007 that the value of assets seized and the number of seizures had increased to R622 million and 191 respectively during the preceding ten months, which is the equivalent of R750 million and 220 seizures per annum. One of POCA’s principal objectives is to combat crime for which normal law and procedure are inadequate, such as where heads of syndicates don’t commit crimes directly or are beyond the country’s borders. As far as I know, the Act has seldom, perhaps never, been used to combat such crimes. Perhaps POCA should not be regarded as being used to combat crime at all, because it is applied regardless of whether crimes are proven, in the absence of which innocence must be presumed.

POCA’s Preamble explains its raison d’etre at length and in unambiguous detail, including that “common law and statutory law fail to deal effectively with organised crime, money laundering and criminal gang activities” and “that it is usually very difficult to prove the direct involvement of organised crime leaders in particular cases, because they do not perform the criminal activities themselves, it is necessary to criminalise the management of. and related conduct in connection with enterprises which are involved in a pattern of racketeering activity (sic)”. The rationale for “preservation and forfeiture of property” is that “persons should not benefit from the fruits of organised crime and money laundering”. The gravitas of the matter is emphasised by reference to the fact that the crimes concerned present “a danger to public order and safety and economic stability, and have the potential to inflict social damage”.

Such language scarcely anticipates the seizure of Benjamin Kleinbooi’s car. He is a modest Laingsburg municipality employee, whose car was seized, supposedly for drunk driving. The detail is that he’d parked his car because he thought he was too intoxicated to drive. Being parked with the keys in the slot is, technically speaking, driving. The car, however, was no longer, strictly speaking, his, it having been subject to repossession by financier, WesBank. Here we have the asset of an innocent third party being seized by virtue of it being the “instrumentality” of a crime. The implications are extraordinary, potentially ludicrous. By the same logic, if it has not yet happened, the AFU considers itself entitled to seize a rental car because a customer uses it to commit a crime. Would the AFU seize a plane because of an attempted hijacking – a hotel because a resident has a prostitute in his room – a restaurant because criminals plot a crime there over dinner?

This lack of a rational nexus between owners and instrumentalities is one of our concerns. Another is the issue of proportionality addressed in this case. The AFU’s position is that there is no difference between seizing a multi-million Rand complex for a minor suspected offence and a cell phone used to plot a major act of terrorism. It does not regard the seizure of assets as penal. In the Mohunram case, the accused had been fully and successfully prosecuted. The court had imposed a fine and ordered forfeiture of the slot machines involved. That should, in our view, be regarded as the end of the matter, as “the punishment fitting the crime”. It was, in the judgement of the court, the full and appropriate penalty. However, ex post, the AFU seized the building, which was only partly used for the crime and part owned by an innocent third party.

Whilst the LRP is not convinced that the hallowed principles developed over centuries of jurisprudence should be compromised even to combat extraordinary crime of the kind contemplated, we have no doubt that extreme measures contemplated in POCA should not be used in the ordinary course to combat all of the crimes mentioned in Schedule 1 which, apart from those listed, include any offence for which imprisonment without the option of a fine may exceed one year, that is conventional crime of the sort for which no special powers can reasonably be considered necessary, especially not in a constitutional democracy based on the rule of law, and a democratic and open society. Accordingly, we welcome Sachs J’s conclusion that “the danger exists that if the 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”.

That this judgement has the effect of confining the AFU to the purposes for which the Act was, we submit, clearly intended, does not remove grounds for concern about remaining provisions in the act. Justice Moseneke DCJ, for example, mentions that the constitutionality of contentious forfeiture provisions in Chapter 6 remain unresolved. Other problematic provisions include the admissibility of hearsay evidence, retroactivity, reverse onus and double jeopardy.

It is easy under conditions where there is a desperate need to combat crime to sacrifice basic principles of law. Under “normal” conditions there would not be such ready acceptance of the following implications of POCA, specifically the interpretation and application of it for which the AFU has argued (not all of which has been upheld by the courts). What the AFU espouses is that the state should be free to seize private property even where the owner has not been formally charged, indeed where “innocent third party” owners are not under suspicion at all. The AFU wants the courts to have no discretion but to order “preservation” upon the AFU suggesting reasonable grounds in ex parte applications to regard assets as instrumentalities or proceeds of crime. This means that innocent people – presuming innocence until guilt is proven – may be deprived of their assets without a proper hearing in which the onus of proof is discharged beyond reasonable doubt by an identified accuser, or, at least, on a balance of probabilities in a conventional civil case. The legitimacy of criminal courts ordering forfeiture of instrumentalities and proceeds upon conviction has never been questioned. What is problematic is the subversion of established criminal law for the purpose of combatting “ordinary” crime.

The Asset Forfeiture Unit envisages a world in which the state is free to choose whether to proceed under criminal or civil law, or both, and in which failure to succeed by one method can be followed by the other.

The LRP shares the common conviction of all reasonable South Africans that the state should be equipped with laws and resources that enable it to fulfil its constitutional obligation to provide security and protection from crime as well as the provision of justice and due process in accordance with the rule of law and without compromising the Bill of Rights.  We are concerned that POCA and the AFU should operate strictly within these boundaries. It remains to be seen when the outstanding issues have been resolved by the Constitutional Court whether there will be a need to amend the law or whether POCA, suitably interpreted in accordance with the constitution, will serve its intended purpose, which is our preference.