Abstract
This article deals with civil forfeiture in terms of the Prevention of Organised Crime Act1 (POCA) and considers the jurisprudential development of the instrumentality and exclusion analyses, considering in particular the newly introduced and limiting thirdstage, namely proportionality analysis. South African courts, appreciating the objectives of civil forfeiture, have utilized the Constitution to cushion its effects on property and liberty rights by implementing the proportionality analysis as a third criterion. The article also considers the call made by certain authorities that existing legislation ought to be amended in order to codify extant judicial precedent in this regard. In conclusion, it is recommended that civil forfeiture in South Africa should continue along the lines of the three-staged approach that has crystallized in practice by applying an approach incorporating instrumentality, exclusion and proportionality analyses.
Highlights
This article attempts to trace South African jurisprudential development of both the instrumentality and exclusion analyses and critically assesses the newly introduced and limiting third stage or nuance[3] which originates from the application of constitutional provisions to civil forfeiture
This article deals with civil forfeiture in terms of the Prevention of Organised Crime Act[1] (POCA) and considers the jurisprudential development of the instrumentality and exclusion analyses, considering in particular the newly introduced and limiting third stage, namely proportionality analysis
South African courts, appreciating the objectives of civil forfeiture, have utilized the Constitution to cushion its effects on property and liberty rights by implementing the proportionality analysis as a third criterion
Summary
This article deals with civil forfeiture in terms of the Prevention of Organised Crime Act[1] (POCA) and considers the jurisprudential development of the instrumentality and exclusion analyses, considering in particular the newly introduced and limiting third stage, namely proportionality analysis. South African courts, appreciating the objectives of civil forfeiture, have utilized the Constitution to cushion its effects on property and liberty rights by implementing the proportionality analysis as a third criterion. The article considers the call made by certain authorities that existing legislation ought to be amended in order to codify extant judicial precedent in this regard. It is recommended that civil forfeiture in South Africa should continue along the lines of the three-staged approach that has crystallized in practice by applying an approach incorporating instrumentality, exclusion and proportionality analyses. 1 121 of 1998 (as amended). 2 Printz v US 521 US 898, 977 1977 per Breyer J dissenting
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