Wednesday, February 14, 2007

By Jason Smit

The Organised Crime Act is being increasingly applied outside of the traditional understanding of "organised crime". Given recent developments in the interpretation and application of the Act, is there cause for concern?

Perusal of some recent judgements is instructive.

In National Director of Public Prosecutions v Dr J A K van Staden and 2 others (case no 531/2005) (the Van Staden matter), the Appellate Division confirmed that those of the Act’s provisions allowing for the confiscation, preservation and subsequent disposal of assets used in the commission of crimes could indeed be applied to criminal activity not traditionally understood as being that of organised crime.

The judgment arose from the issue of whether or not a car driven by a driver guilty of being under the influence of intoxicating liquor could be confiscated and forfeited to the State.

When the Act was initially introduced, it was regarded as a mechanism to assist the State in confiscating "the proceeds of organised crime".

Although it was therefore assumed that the Act would be limited to the State’s attempts at confiscating assets belonging to criminals traditionally categorised as being part of crime syndicates and the like, the Van Staden judgmentmakes it clear that the Act could be extended beyond that limited scope.

Indeed, it could be applied to any criminal matter where "the property concerned is an instrumentality of an offence referred to in the Act".

The immediate reaction to the Van Staden judgmentwas one of alarm, with visions of drivers losing their vehicles at the first instance of a drunk driving conviction and the State conducting mass confiscations of vehicles at road-blocks.

Yet that judgmentdid not seek to achieve that outcome. Under consideration was the State’s attempt to obtain a Preservation Order in terms of the Act with a view to the car then being forfeited to the State.

The State would thereafter apply, via the National Director of Public Prosecutions, to the relevant Court, for a further Order that the the car be forfeited to the State on a permanent basis.

There thus seems to be "two – step" procedure in existence, which does not automatically result in the relevant asset being finally foreited to the State.

Importantly, note that the first step, whereby the State seeks to temporarily confiscate property, is temporary. Only once a further order is made after to a preservation order has been granted will the relevant property be finally forfeited to the State.

The Appellate Division stressed that for "preservation" and "forfeiture" to occur, there had, at least, to be a rational relationship between the deprivation and the legislative ends sought to be obtained through the deprivation.

Thus, what the Appellate Division seemed to envisage was not a wholesale confiscation of every vehicle in the possession of every driver convicted of contravening the drunk driving laws.

As emphasised by Nugent JA in the Van Staden matter: "Even where the property is sufficiently proximate to the crime to be an instrumentality of the offence, the deprivation might none the less be so disproportionate in the circumstances as to make the deprivation arbitratory."

The judgmentdoes not elaborate on the scale of disproportionality required and thus fails to suggest guidelines as to what may constitute sufficient "proportionality". It is accordingly left to the discretion of the relevant court to determine the ultimate fate of the property deemed to be an instrumentality of an offence.

Indeed, in an earlier case of Prophet v National Director of Public Prosecutions 2006 (1) SA 38 (SCA) – the court stated: "It is for the owner to place the necessary material for a proportionality analysis before the court."

Consequently, what may warrant forfeiture of an asset in one instance may not be sufficient in another.

In the Van Staden case, the Court pointed out that the confiscation of a motor vehicle that was instrumental in the commission of a drunk driving offence should not substitute for the normal criminal remedies in that instance.

Hence, forfeiture of an asset should not be punishment for committing a crime. Rather, some broader goal should be targeted.

To avoid an order for forfeiture in "drunk driving" cases being arbitrary, and therefore unconstitutional, a Court would have to be satisfied that the deprivation of the vehicle "is not disproportionate to the ends that the deprivation seeks to achieve".

A broader analysis of the "ill sought to be countered" would be required.

The Appellate Division specifically left this question open in the Van Staden judgment, making it clear that it was only elaborating upon the general principles applicable to the possibility of initial forfeiture orders being granted.

This principle having been established, the future will witness much debate as the State applies for the preservation of a range of assets and those applications are opposed where the affected party believes that the ultimate forfeiture of the asset would be unconstitutional or disproportionate to the offence.

Presumably a broader structure enabling the State to seize and dispose of assets used in the commission of "common" offences will be developed as the judiciary considers each State application.

What the Van Staden judgment does is to clarify the specific link between the property and the commission or suspected commission of offence.

In the context of a drunk-driving related offence, the Court held: "The essence of the offence is the use of the vehicle while the driver is in a particular state. The vehicle is the very means, or instrument, that is used to commit the offences."

That having been said, the court reserved comment on whether or not the motor vehicle in the case before it would indeed be forfeited or made subject to a preservation order. It simply referred to the principles of proportionality that would guide a court granting a forfeiture order.

The judgment prompted the assumption that every person arrested on a drunk-driving charge immediately stands to lose his or her vehicle. Yet all that it confirmed was that this type of forfeiture was, in general terms, a possibility within the Act.