Court says asset forfeiture laws must not put human rights at risk

Langa Bodlani

Langa Bodlani

Organised crime is rife in South Africa and throughout the world so government measures to combat it must be welcomed.

The Prevention of Organised Crime Act 121 of 1998 must be seen in this light.

However, in our efforts to fight crime, we must not trample on hard-won human rights.

Our past must always be a reminder to us that excessive executive powers are inimical to the human rights culture to which our country aspires.

The constitutional court ruling this week in the Mohunram matter, in which the Law Review Project (LRP) acted as friend of the court, is a leap forward in entrenching rights-based jurisprudence in South Africa.

Mohunram, through Shelgate Investment, ran an illegal gambling business in contravention of the KwaZulu-Natal Gambling Act in premises that were subsequently forfeited under the Prevention of Organised Crime Act.

The premises were used to run Vryheid Glass and Aluminium, a legal business, and 57 unlicensed gaming machines.

Mohunran pleaded guilty, paid an admission of guilt fine and his gaming machines, valued at about R285000, were seized and destroyed.

The National Directorate of Public Prosecutions then launched forfeiture proceedings to seize the premises in which he operated his business.

This claim started in the high court, was then heard in the supreme court of appeal and eventually in the constitutional court before it was granted.

In its intervention, the LRP did not seek to raise constitutional objections to the act, but argued that the forfeiture constituted an unlawful and arbitrary deprivation of property under section 25 of the act. The LRP also argued it amounted to a penal deprivation of property that is grossly disproportionate, arbitrary and irrational, and also cruel and unusual under the constitution.

The LRP maintains that the dichotomy between property and humans is fictitious. Property has no status beyond the fact that someone owns it.

In considering if the act offended the property clause in the constitution in matters beyond organised crime, as in the present one, the court warned that the act "could result in situations of disproportionate, and hence constitutionally unacceptable, forfeiture".

It said courts must always guard against this happening.

The purpose of civil forfeitures under Chapter 6 of the Prevention of Organised Crime Act, among others, was to remove the incentive to commit crime and deter people from committing crimes.

The court held that the deterrence purpose is not without limits.

It said it would be "wrong for the to be utilised in a manner that blurs the distinction between the purposes and methods of criminal law enforcement and those of civil law".

The court further held that "there is no justification for resorting to the remedy of civil forfeiture under the act as a 'substitute' for the effective and resolute enforcement of 'ordinary' criminal remedies".

This is a clear message that our courts should not encroach on our property rights under the guise of dealing with crime.

Focus should be on increasing the effectiveness of the existing crime combating measures.

The majority decision held that "civil asset forfeiture constitutes a serious incursion into well-entrenched civil protections, particularly those against arbitrary and excessive punishment and against arbitrary confiscation of property".

It emphasised civil forfeiture must always be viewed against the protection of individual rights to property.

It was held that the forfeiture would be disproportionate because Mohunram had already pleaded guilty, paid the fines and had his machines confiscated.

An inclination of the Asset Forfeiture Unit to apply the act in all crimes is noticeable.

The LRP argued that the act should be confined to crimes in the legislation, mainly organised crime, gang activities, racketeering and money laundering. These are crimes where ordinary laws have proven inadequate. Extending the act to drunken driving or unlicensed gaming is applying extraordinary measures to ordinary crimes.

Judge Albie Sachs said "If Asset Forfeiture Unit spreads its net too widely to catch the small fry, it will make it easier for the big fish to elude the law. This would frustrate rather than further the objectives of the act."

Our country has a painful past of arbitrary property confiscation. Our property rights, while not absolute, should be regarded as almost sacrosanct. The right to free trade, shelter and dignity is inextricably interwoven with the right to property.

lLanga Bodlani is a researcher with the Law Review Project. The views are those of the author