MORE CLOUT FOR UNITS TO SEIZE CRIME ASSETS

Johannesburg - CRIME fighting authorities have been given added punch by a
Cape Town High Court judgment which has ruled that the controversial civil
forfeiture process can be used as a legitimate crime fighting mechanism.

The court ruled that the Asset Forfeiture Unit may seize property from a
person before their criminal case has been finalised, clarifying yet
another aspect of the largely contested Prevention of Organised Crime Act.

The National Directorate of Public Prosecutions faced a number of court
defeats soon after the Act came into effect, raising doubts about SA's
ability to fight commercial or organised crime, but the high court judgment
and a number of recent judgments in the directorate's favour suggest that
the forfeiture law can withstand the scrutiny.

The Prevention of Organised Crime Act as a whole is a response to a
perceived growth in organised and related criminal activities. It was
enacted in response to a belief that SA common law and statutory law failed
to deal effectively with such crimes.

Two cases which were returned because of technicalities involved Hyundai
Motor Distributors' owner Billy Rautenbach and Durban businessman
Mothielall Seevnarayan.

In Rautenbach's case, goods worth R60m were returned because proper
procedures had not been followed, and in the Seevnarayan case involving
alleged tax evasion the judge expressed the view that the forfeiture laws
were too sweeping.

In the case in question Judge Nathan Erasmus ruled that the Woodstock, Cape
Town property of drug suspect Simon Prophet could be forfeited to the state
and sold, and proceeds of the sale be deposited into the Criminal Recovery
Account after the bondholder had been paid.

The ruling by Erasmus means that not only the fruits of crime, but anything
associated with a crime can be forfeited, through a civil court process
without criminal charges being laid. The onus of proof in civil matters is
less onerous than in criminal cases.

The judgment also dealt with the "instrumentality" of an offence which
relates to "any property which is concerned in the commission or suspected
commission of an offence", whether committed in SA or elsewhere.

So an acquittal in a criminal trial does not mean that Prophet's property
will be returned, according to Advocate Raylene Keighley, National Director
of the Asset Forfeiture Unit. In his case the forfeiture unit's proceedings
were under Chapter 6 of the act which holds that any property linked to
unlawful activity can be confiscated irrespective of whether there is
successful prosecution or not.

The judgment also splits the notion of civil and criminal forfeiture, and
asset forfeiture can now take place without legal authorities having first
to secure a conviction, or even charging a suspect in a criminal court.