Prevention of Organised
Crime Act 121 of 1998 (POCA)
Webber Wentzel Bowens
Mohunram vs the National Directorate of Public Prosecutions
26 March 2007
to the case and why the Law Review Project (LRP)
concerned about POCA and Asset Forfeiture Unit (AFU)
Summary of presentation
by Leon Louw
Executive Director, Law Review Project
reason why POCA and the AFU enjoy near-universal support is obvious: all decent
people want the government to be “tough on crime”. Predictably, most people
welcome reports of the AFU seizing “criminal assets”. The default assumption is
probably that various pre-conditions legitimise seizure and subsequent
forfeiture, such as that criminality has been proven according to established
criminal law criteria, that the assets are known with reasonable certainty to
be proceeds or instrumentalities of crime, that there has been due process,
including the rule of law, and that “the punishment fits the crime”.
On what grounds might the LRP and the
team of lawyers involved, challenge POCA, the AFU or the National Director of
Public Prosecutions (NDPP)? Does doing so imply inadequate concern for the
rights of the victims of crime? POCA, after all, has stirring language
explaining that its principal objective is to fulfil the state’s constitutional
obligation to protect people from crime.
Unfortunately, this, like so many
important issues, is not a simplistic binary George Bush-type “if you are not
with us you are against us” situation. If you are not for whatever ends
supposedly justify the means, it does not follow that one is against the ends,
but that one may be for better means. Decency, justice and the Constitution not
only require that people be protected from crime but also that they be
protected from injustice in combating crime. There are many provisions in the
Constitution to that effect, the most important of which is the binding
“foundational” provision in Section 1 according to which all law and procedure
must comply with the rule of law. There are no free lunches, which in this
context means that there are unavoidable trade-offs between human rights and
the rule of law on one hand, and the ability of the state to combat crime on
Bluntly put, a democratic human rights
order is good news for criminals. Those like the NDPP and AFU responsible for
combating crime would be able to do so much more effectively if they did not
have to observe the checks and balances necessary to minimise the prospect of
injustice. Combating crime in a free and democratic society is a costly,
complex and challenging business. The question confronting government and
society is to what extent, if at all, human rights should be compromised to
this end. Is it possible or desirable to confine criminal justice to
uncompromised compliance with democratic and jurisprudential values?
I will not in this brief note elaborate
on what the rule of law is. The need to do so is, however, much more
significant than generally realised. All respectable people say they are for
the rule of law, yet few, even in professional and scholarly circles, are clear
on precisely what it means, especially its practical application to the mundane
aspects of formulating and enforcing law. Although this is not strictly
correct, I use “rule of law” here to include all aspects of established
jurisprudence regarding criminal law and procedure, including:
1. Certainty – the need for there to be certainty regarding rights and obligations.
2. Discretionary Power – in accordance with the requirement of certainty, that discretionary power be avoided, and where it is unavoidable, that it be accompanied by (a) articulated objectives and (b) objective criteria for exercising discretion.
3. Prospectivity – also in accordance with the requirement of certainty, that there should be no retroactive law, since that would mean people cannot know with certainty whether what they are doing is lawful.
4. Hearsay – that uncorroborated hearsay evidence should be inadmissible, or admissible only under extreme conditions.
5. Onus – that the burden of proof rests unambiguously with accusers and prosecutors since inter alia proof of innocence should not be required as a matter of justice and is, in any event, disproportionately difficult if not impossible.
6. Double Jeopardy – the requirement that people should be “jeopardised” only once in the absence of extraordinary circumstances, so that the state does not have two or more arbitrary “bites at the cherry”.
7. Due Process – by which all people accused of wrong doing are entitled to be charged, face their accuser and defend themselves in accordance with established jurisprudential criteria such as access to information, cross examination, impartial and independent courts, rights of review and appeal, and the like.
8. Bill of Rights – the Constitution, especially the Bill of Rights provides explicitly or implicitly for all of these and a great deal more checks and balances against injustice, regarding which I would have liked to say that there is no need to elaborate, but unfortunately there is insufficient appreciation of the matter to allow us to neglect the need for vigilance.
9. Separation of Powers – that the executive should be confined to executing laws and policies, not making substantive law or adjudicating; the legislature alone to legislate, and the judiciary to adjudicate. A lack of appreciation of the theoretical and practical reasons for the separation of powers, and why there is no real need to abrogate it, has led to it being compromised almost out of meaningful existence in South Africa, including in aspects of POCA.
The LRP noted with concern, when POCA
was a Bill, that it created what Justice Moseneke DCJ during the Mohunram
proceedings called “extraordinary powers”, some of which powers appeared to us
to compromise or have had the potential to compromise these Rule of Law
criteria. Even so, the LRP made no formal submission on its concerns because
the Act appeared to be confined, as its name implies, to combating
“extraordinary” crime clearly and repeatedly defined in it:1. “organised crime”
2. “money laundering”
3. “criminal gang activities”
POCA explains that the need for such
extraordinary powers is, for instance, that it is often difficult or impossible
to identify the orchestrators of “organised crime”, especially that of
If I am not mistaken, the Minister of
Justice at the time, Penuell Maduna, was emphatic about POCA being exclusively
for those purposes and that it would be resorted to infrequently. I think he
said it might not be used for periods as long as two years. In dramatic
contrast, AFU head, Willie Hofmeyer, said at a dinner attended by business
leaders that the AFU had calculated the value of assets that could be seized
and forfeited annually. It did not, he argued, target people, but things (in rem), which have no rights. Whilst I
forget the precise figure, it amounted to billions of Rands. It was reported in
January 2007 that the value of assets seized and the number of seizures had
increased to R622 million and 191 respectively during the preceding ten months,
which is the equivalent of R750 million and 220 seizures per annum. One of POCA’s principal objectives is to combat crime
for which normal law and procedure are inadequate, such as where heads of syndicates
don’t commit crimes directly or are beyond the country’s borders. As far as I
know, the Act has seldom, perhaps never, been used to combat such crimes.
Perhaps POCA should not be regarded as being used to combat crime at all, because it is applied regardless of whether
crimes are proven, in the absence of which innocence must be presumed.
POCA’s Preamble explains its raison d’etre at length and in
unambiguous detail, including that “common law and statutory law fail to deal
effectively with organised crime, money
laundering and criminal gang
activities” and “that it is usually
very difficult to prove the direct involvement of organised crime leaders in
particular cases, because they do not perform the criminal activities
themselves, it is necessary to criminalise the management of. and related
conduct in connection with enterprises which are involved in a pattern of
racketeering activity (sic)”. The
rationale for “preservation and forfeiture of property” is that “persons should
not benefit from the fruits of organised crime and money laundering”. The gravitas
of the matter is emphasised by reference to the fact that the crimes concerned
present “a danger to public order and safety and economic stability, and have
the potential to inflict social damage”.
Such language scarcely anticipates the
seizure of Benjamin Kleinbooi’s car. He is a modest Laingsburg municipality
employee, whose car was seized, supposedly for drunk driving. The detail is
that he’d parked his car because he thought he was too intoxicated to drive.
Being parked with the keys in the slot is, technically speaking, driving. The
car, however, was no longer, strictly speaking, his, it having been subject to
repossession by financier, WesBank. Here we have the asset of an innocent third
party being seized by virtue of it being the “instrumentality” of a crime. The
implications are extraordinary, potentially ludicrous. By the same logic, if it
has not yet happened, the AFU considers itself entitled to seize a rental car
because a customer uses it to commit a crime. Would the AFU seize a plane
because of an attempted hijacking – a hotel because a resident has a prostitute
in his room – a restaurant because criminals plot a crime there over dinner?
This lack of a rational nexus between owners and
instrumentalities is one of our concerns. Another is the issue of
proportionality addressed in this case. The AFU’s position is that there is no
difference between seizing a multi-million Rand complex for a minor suspected
offence and a cell phone used to plot a major act of terrorism. It does not
regard the seizure of assets as penal. In the Mohunram case, the accused had
been fully and successfully prosecuted. The court had imposed a fine and
ordered forfeiture of the slot machines involved. That should, in our view, be
regarded as the end of the matter, as “the punishment fitting the crime”. It
was, in the judgement of the court, the full and appropriate penalty. However, ex post, the AFU seized the building,
which was only partly used for the crime and part owned by an innocent third
the LRP is not convinced that the hallowed principles developed over centuries
of jurisprudence should be compromised even to combat extraordinary crime of
the kind contemplated, we have no doubt that extreme measures contemplated in
POCA should not be used in the ordinary course to combat all of the crimes
mentioned in Schedule 1 which, apart from those listed, include any offence for
which imprisonment without the option of a fine may exceed one year, that is
conventional crime of the sort for which no special powers can reasonably be
considered necessary, especially not in a constitutional democracy based on the
rule of law, and a democratic and open society. Accordingly, we welcome Sachs
J’s conclusion that “the danger exists that if the AFU spreads its net too
widely so as to catch the small fry, it will make it easier for the big fish
and their surrounding shoal of predators to elude the law. This would frustrate
rather than further the objectives of POCA”.
Law Review Project
3 April 2007
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