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JUSTICE PORTFOLIO COMMITTEE
21 October 1998
PREVENTION OF ORGANISED CRIME BILL [B118-98]: DISCUSSION
Documents handed out
Summary of Representations on Prevention of Organised Crime Bill
In the morning session Clauses 29 to 59 of the Prevention of Organised Crime Bill were discussed. The afternoon session was not monitored.
The chairperson felt that the words "when it is reasonably necessary to ensure the implementation of a confiscation order" creates too high a test and consequently creates unnecessary hurdles for the court to overcome. Mr Smit of the South African Law Commission (SALC) was asked to redraft 29(1) and create a lower test for the exercise of the court’s discretion.
It was found by the committee that 30(2) has no constitutional basis and Mr Smit was asked to reconsider 30(2). The committee accepted all the other provisions of the clause but 30(8) was contested.
Clause 30(8) deals with protection against self-incrimination for the person making a statement of disclosure. The chairperson suggested that the word "strictly" be inserted before the words "in compliance with" because this provision should be interpreted narrowly so as to limit the area of abuse. Mr Hofmeyr raised the point that the rule of evidence stipulated that in cases where a person claims the privilege against self-incrimination, derivative and circumstantial evidence may still be adduced to show the incriminating evidence in court. Mr Nel of the Justice Department and Mr Smit were asked to research 30(8).
The committee felt that 34(3)(a) was too broad because how would the court know how many victims should be afforded an opportunity to make representations. The committee therefore suggested that another provision be added which gives the court a discretion in this regard.
In terms of 34(4) the chairperson wanted to know what the curator bonis should do with the property if it is found that the victim had lost the civil case. He suggested that a provision should be added indicating that the court would decide what to do with any residue of property in such cases.
It was found by the committee that clause 34 which deals with the jurisdiction of Magistrate’s Courts , and clause 36 which deals with Regulations, should be put at the end of the Bill.
Mr Hofmeyr said that the clause mentions, "an offence which forms part of a pattern of illegal conduct" and he pointed out that an offence which forms part of a pattern of illegal conduct can only be proved in a criminal trial. Furthermore civil forfeiture usually only relates to one single offence and not to a pattern of illegal conduct. Moreover, the clause deals with the 'innocent owner' defence and therefore it is only used in instances where the owner of the property is genuinely innocent. The clause 42 provisions serve as a notification to innocent owners that their property may be used in the commission of an offence. If the owner has received such notification and still releases such property, then the state may tender the return of service of the notification and consequently such "owner" will find it difficult to raise the 'innocent owner' defence.
The following suggestions were made: clause 42 should not make a distinction between all crimes and serious crimes and therefore should find application in all crimes (as suggested by Mr Hofmeyr and Mr Mzizi): clause 42 should only find application to crimes connected with an enterprise (as suggested by Dr van Heerden); clause 42 should find application only to crimes stipulated in the Schedule to the Bill (as suggested by the chairperson). Mr Smit and Mr Nel were asked to redraft clause 42 and represent it to the committee with all the suggested options and amendments.
The committee found that clause 43 relates to a situation where there has been no seizure of property as yet. The test that the court should employ with regard to this clause is put in 43(2)(b). The chairperson suggested that this test should be put earlier in clause 43.
The test that the court should employ was a topic of contention. It was found that the USA provision which is similar to clause 43(2)(b) employs a 'probable cause' test in lieu of a 'reasonable suspicion' test. It was submitted by the chairperson that the 'probable cause' test is much higher than the 'reasonable suspicion' test. The chairperson also asserted that the 'reasonable suspicion' test is too low a test and the matter should be decided on "a balance of probabilities that the suspicion reflected in the affidavit is reasonable". Alternatively there should be a prima facie case established before the court grants the relief. The rationale here is that people’s property might be taken away from them and therefore a high test is needed before such action is taken. Also clause 43 would not withstand section 36 of the Constitution if a high test is not used for the application of clause 43.
Mr Hofmeyr asserted that this is an ex parte application and therefore the test should be lower than the "balance of probabilities" due to the limitation on the audi alteram et partem principle.
The drafters were asked to research clause 43 and also have regard to the formulation of the Criminal Procedure Act in respect of criminal forfeiture. Mr Smit pointed out that confusion could be created because the Bill speaks of restraint orders and restraining orders and therefore clause 43 should be called civil recovery orders in order to avoid any opportunity for confusion setting in.
The committee found that 45(a) is problematic because the court would not know the number of people affected by the order. The suggestion was that notice should be given to all known persons that have an interest in the property.
All submissions were accepted and it was found that 50(d) was not needed because South Africa is not a federal system.
The committee found that the amount here should be limited and that 51(2) should be strengthened. The rationale here is that 51(2) could be a lucrative source of income for the state.
The afternoon session was not monitored.
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