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South Africa decisions
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Special Investigating Unit (SIU) v Mazibuko and Others (GP10/2021) [2022] ZAST 3 (17 January 2022)
The Special Tribunal dismissed an application for leave to appeal against a civil forfeiture order, finding no error in its jurisdiction or factual findings.
National Director of Public Prosecutions v Gallant (917/2018) [2021] ZAECPEHC 51 (14 September 2021)
The court found that the respondent's vehicle was used only incidentally and fortuitously in the commission of the offence, namely the transportation of abalone by a third party without the respondent's knowledge. The evidence did not establish a sufficiently direct or functional link between the property and the offence to qualify as an 'instrumentality of an offence' under POCA. The respondent's version was credible and supported by documentation, and there was no basis to reject his claim of innocence. The court emphasized the need for a restrictive interpretation of 'instrumentality' to a…
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Minister of Rural Development and Land Reform v Land Agriculture Bank of South Africa and Others (90/2020) [2021] ZAECGHC 61 (6 July 2021)
The High Court held that proceeds from forfeited property must be apportioned between the Minister and the Bank according to their capital losses.
National Director of Public Prosecutions v Absolon (3373/2016) [2017] ZAECPEHC 58 (12 December 2017)
The High Court refused forfeiture of a truck used to remove sheep carcasses after an accident, finding the vehicle was incidental to the offence and forfeiture disproportionate.
Van der Burg and Another v National Director of Public Prosecutions (A236/10) [2011] ZAWCHC 75 (16 March 2011)
The court held that the appellants' property was deliberately arranged, adapted, and used as the central instrumentality for the illegal shebeen operation, which persisted over six years despite repeated police interventions and a preservation order. The offences committed under the Liquor Act fall squarely within the ambit of POCA, as the punishment may exceed one year imprisonment without the option of a fine. POCA applies to individual wrongdoing, not only organised crime. The proportionality assessment, considering the persistent criminal enterprise, the failure of conventional law enforc…
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National Director of Public Prosecutions v Braun and Another (11244/06) [2006] ZAWCHC 60; 2007 (4) SA 72 (C); 2007 (1) SACR 556 (C) (22 December 2006)
The High Court granted a final preservation order over immovable property under POCA, holding that the property was reasonably believed to be an instrumentality of alleged sexual offences.
National Director of Public Prosecutions v Fielies and Another (529/03) [2004] ZANCHC 99 (26 March 2004)
The court found that the illegal sale of liquor is an offence contemplated in item 33 of Schedule 1 to POCA, as it is punishable by imprisonment exceeding one year. The property in question, including the immovable premises and certain movable items, was deliberately and repeatedly used for the unlawful sale of liquor. The use of the property was integral to the success of the illegal activity, and the connection between the property and the offence was established on a balance of probabilities. The court rejected the respondents' argument that POCA only applies to organised crime and dismiss…
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National Director of Public Prosecutions v Prophet (5926/01) [2003] ZAWCHC 16; 2003 (6) SA 154 (C); 2003 (2) SACR 287 (C); 2003 (8) BCLR 906 (C) (22 May 2003)
The court ordered forfeiture of a Woodstock property used as a methamphetamine laboratory and rejected a stay pending criminal proceedings.
National Director of Public Prosecutions v Seevnarayan (6972/2001) [2003] ZAWCHC 1; [2003] 1 All SA 240 (C); 2003 (2) SA 178 (C); 2003 (1) SACR 260 (C); 2003 (7) BCLR 766 (C); 66 SATC 15 (3 January 2003)
The court held that the property concerned was not an instrumentality of an offence, as the funds were not the means by which the offences were committed but rather the subject matter. The respondent's conduct amounted to tax evasion and fraud on SARS, but the funds were legitimately earned before any unlawful activity occurred. The applicant failed to establish a sufficient connection between the unlawful activities and the derivation or retention of all the property. The statutory scheme does not permit the court to grant partial forfeiture orders, and a literal application would lead to di…
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