Tuesday, January 30, 2007

By Jason Smit
“Mama don’t take my Kodachrome away”, Simon and Garfunkel once sang.
Given recent developments in the interpretation and application of the Organised Crime Act 121 of 1998 (“the Act), one imagines that a number of similarly impassioned (although probably less musical) pleas will be issued to courts across the country, as the Act continues to be applied outside of the traditional understanding of “organised crime”.
In National Director of Public Prosecutions v Dr J A K van Staden and 2 others (case no 531/2005) (“the Van Staden judgment”) the Appellate Division confirmed that the provisions of the Act which allow for the confiscation, preservation and subsequent disposal of assets utilised in the commission of crimes can indeed be applied to criminal activity which is not traditionally understood as being that of organised crime. 
Although the development of this principle had already commenced in National Director of Public Prosecutions v R O Cook Properties (Pty) Ltd and others (2004) (2) SACR 208 (SCA), the Van Staden matter removed any doubt regarding the confiscation and disposal of assets connected with “ordinary crimes”.
In the Van Staden judgment, the question which fell to be decided was whether or not a motor vehicle driven by a driver guilty of, for example, being under the influence of intoxicating liquor, could be confiscated and forfeited to the State in terms of Chapter 6 of the Act.
When the Act was initially introduced, it was widely described as a mechanism which would assist the State in confiscating “the proceeds of organised crime”.
Although many commentators assumed that the Act would therefore 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 judgment makes it clear that the Act is capable of application outside of that limited scope and in fact can be applied to any criminal matter where “the property concerned is an instrumentality of an offence referred to in the Act”.
Naturally the immediate reaction to the Van Staden judgment was 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.
It is interesting to note that the judgment in question does not in fact seek to achieve that outcome.
The specific issue being considered was the State’s attempt at obtaining a Preservation Order in terms of the Act, with a view towards the relevant property then being forfeited to the State, subsequent to a further application by the National Director of Public Prosecutions.
Thus, the structure in question has a two step procedure and does not merely automatically result in forfeiture to the State once a Preservation Order is obtained.
It is important to note that the first “step” as it were, whereby the State seeks temporarily to deprive a person of his or her or its property, is exactly that, namely temporary.  Only once a further Order is made subsequent to a preservation Order being granted, will the relevant property indeed be finally forfeited to the State.
As stated by the Appellate Division, for “preservation” and “forfeiture” to occur, there needs at least to be a rational relationship between the deprivation and the legislative ends that are sought to be obtained.
Nugent JA’s comment is instructive:
“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 arbitrary.”
The judgment does not elaborate on the scale of disproportionality required and thus does not set out any guidelines as to what may constitute sufficient “proportionality”. 
Indeed, in the earlier judgment of Prophet v National Director of Public Prosecutions 2006 (1) SA 38 (SCA) the Court stated that “it is for the owner to place the necessary material for a proportionality analysis before the court”. 
The Court did go so far in the van Staden case as to make the point that the confiscation of a motor vehicle which is instrumental in the commission of a drunk driving offence should not exist as a substitute for the normal criminal remedies in that instance. Thus, it would appear that forfeiture of an asset should not be seen as a punishment for the commission of a crime, but should seek to obtain some broader goal.
The Court went on to state that, in order to avoid an Order for forfeiture in “drunk driving” cases being arbitratory (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”. 
The Appellate Division seems specifically to have 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.
What the Van Staden matter does seem to clarify, though, is 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 that “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”.
In summary, it is now clear that “ordinary” individuals who commit crimes which fall within the scope and ambit of the Act (as amplified by the Appellate Division) are likely to require far more than the musical talent of Simon and Garfunkel in order to retain their property.