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PREVENTION OF ORGANISED CRIME
SECOND AMENDMENT BILL
AD HOC COMMITTEE
16 August 1999
Documents handed out:
Prevention of Organised Crime Act, 121 of 1998.
Prevention of Organised Crime Second Amendment Bill B41-99
Portfolio Committee Amendments to the Prevention of Organised Crime Second Amendment Bill (please note: only a later version as distributed at the meeting of the 18 August is available here)
After his nomination as the chairperson of the Ad Hoc Committee on the Prevention of Organised Crime Second Amendment Bill, Advocate J H de Lange handed over to Mr W Hofmeyr from the Office of the National Director of Public Prosecutions, to address the Committee on the proposed amendments to the Bill. Mr Hofmeyr went through the proposed amendments, occasionally explaining the legal issues and consequences of the amendments made. Committee members were given a chance to ask questions and to make suggestions. Discussions will continue daily for the rest of the week with the hope that it will be passed by Parliament by Wednesday the 25 August 1999.
The secretary Mr B Kali opened the meeting. Mr Kali asked for nominations of both the chairperson and his deputy. Advocate JH de Lange was, without any objections, nominated as the chairperson and Mr ME Surty was nominated as the deputy. Mr de Lange immediately handed over to Mr Hofmeyr from the Office of the National Director of Public Prosecutions.
Section 1 of B41-99 (use the document: Portfolio Committee Amendments to the Prevention of Organised Crime Second Amendment Bill)
Mr Hofmeyr went through the proposed amendments and advised that Section 1 of the Principal Act be amended and the definition of instrumentality of an offence in it should read: "instrumentality of an offence means any property which is concerned in the commission or suspected commission of an offence at any time before or after the commencement of this Act, whether within the Republic or elsewhere." On the definition of "proceeds of unlawful activities " in Section 1, he suggested the following reading: "proceeds of unlawful activities; means any property or any service, advantage, benefit, or reward which was derived, received or retained directly or indirectly, in connection with or as a result of any unlawful activity carried on at any time before or after the commencement of this Act, by any person whether in the Republic or elsewhere. Except for purposes of Chapter 5 where it means any unlawful activity carried on by any person at any time before or after the commencement of this Act; or any act or omission outside the Republic, whether before or after the commencement of this Act, which, if it had occurred in the Republic would have constituted an unlawful activity, and includes any property representing property so derived."
On the above amendments Mr Hofmeyr commented that it had become necessary to remove the words "by any person" in Section1 (b) from their present location and put them to the suggested location as shown above so that it can be clear that it is the unlawful activity that is qualified. He further mentioned that the judge in the Meyer case quoted this part when he referred to this law as unclear. He said that they regard the judges comment as justifiable, hence the proposed amendment.
Section 2 of B41-99
Mr Hofmeyr referred the members to the Portfolio Committee Amendments document handed out. He said that the document shows a further two new clauses. He said these clauses are to follow clause one. The first one amends Section 26 of the Principal Act. Subsection (8) of Section 26 is now to read as follows: " A High Court making a restraint order shall, when it makes an order make an order authorizing the seizure of the property concerned by a police official unless the court is satisfied that such a seizure will cause undue hardship to any person with an interest in that property, in which case it may make any ancillary orders that the court considers appropriate for the proper, fair and effective execution of the order."
Section 4 of B41-99
The second new clause amends Section 38 of the Principal Act. Subsection (3) as amended will now read: " A High Court making a preservation of property order shall when it makes the order make an order authorizing the seizure of property concerned by a police official unless the court is satisfied that such a seizure will cause undue hardship with any person with an interest in that property in which case it may make any ancillary orders that the court considers appropriate for the proper, fair and effective execution of the order."
Concerning the above, Mr Hofmeyr stated that when property is not immediately seized, the experience in America is that people vandalize or hide it once they know it will be subject to seizure by the state. He gave as an example Mr Piet Meyer whose Nissan vehicle, worth a lot of money, was seized in accordance with this law. He said were it not seized, Mr Meyer could have come and said his vehicle had been hijacked. He therefore stressed the importance of the wording: that the judge "shall" and not "may" .
Section 5 of B41-99
Mr Hofmeyr went on to discuss the proposed amendment to Section 47. He mentioned that subsection (4) of the said Section should read: "An appeal against a decision to vary or rescind any order referred to in this section shall suspend such a variation or rescission pending the outcome of the appeal."
Section 6 of B41-99
This amends Subsection (2) of Section 52: "The High Court may make any order under subsection (1), in relation to the forfeiture of the proceeds of unlawful activities, if it finds on a balance of probabilities that the applicant for the order- (a) had acquired the interest concerned legally and for a consideration, the value of which is not significantly less than the value of that interest; and (b) where the applicant had acquired the interest concerned after the commencement of this Act, that he or she neither knew nor had reasonable grounds to suspect that the property in which the interest is held is the proceeds of unlawful activities.
(2A) The High Court may make an order under subsection (1), in relation to the forfeiture of an instrumentality of an offence referred to in Schedule 1, if it finds on a balance of probabilities that the applicant for the order (a) had acquired the interest concerned legally; and (b) neither knew nor had reasonable grounds to suspect that the property in which the interest is held is an instrumentality an offence referred in Schedule1: Provided that where the offence concerned had occurred before the commencement of this Act taken all reasonable steps to prevent the use of the property concerned as an instrumentality an offence referred to in Schedule1."
Concerning the above amendment Mr Hofmeyr used an example to explain to committee members what is meant by "instrumentality of crime " as opposed to "proceeds of crime." He said the R10 000 00 a drug dealer gets for selling drugs is a proceed of crime. However the house he used in selling his drugs is an instrumentality of crime.
Section 5 of B41-99
On the amendment of Section 80 of the Principal Act by Section 41 of Act 24 of 1999, Mr Hofmyer said that the Prevention of Organised Crime Act repeals the Proceeds of Organised Crime Act, but, continued Mr Hofmeyr, cases in progress under the Proceeds of Crime Act, will continue as if there has been no repeal. Mr Hofmeyr expressed concern because of a clause, which he said is in the Interpretation Act, which says that when a law is repealed, people can still be charged on it. He said the way Section 8 is presently worded deals with cases already instituted and not cases to be instituted. He however said that they have asked experts to give their opinion in the matter, which opinions will be available in a week or two.
Mr Hofmeyr closed by saying that he is grateful to be able to address the Committee and he hoped the amendments will be finalised as soon as possible.
Chairperson de Lange told the Committee members that at that stage merits will not be discussed, but will be discussed the following week. Committee members then were given a chance for their inputs which Mr Hofmeyr and Mr de Lange (law advisor) jotted down. Such included the following: A Committee member expressed concern about the clause requiring rescission and variation to be stayed pending the finalization of an appeal. Mr Hofmeyr said that they would see what to do with regard to the appeal proceedings. At that stage Mr Hofmeyr asked his colleague Mr Smit to deal with the question of onus.
Mr Smit advised that the person who wants to prove his innocence has the onus resting on him. He said Section 52 does not change any onus. He went on to say that the applicant (the State in this case) of course has to prove this, but if there is a defence then the defendant has to prove his defence.
Chairperson de Lange commented that by making these amendments, the public must be aware that this is not the end of the problem. He said that the amendments are merely on technical points. People are still going to challenge the law but now on a more substantial ground and not on retrospectivity. Mr de Lange added that he personally feels that the test in Clause 2 is too weak. He then asked the drafting team to circulate any amendments they may make before the next meeting. Further, he asked Mr Hofmeyr to make available any judgements by the High Court on retrospectivity. Mr Surty then dealt with the procedural matters and the meeting was closed for the day.
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