The Law and Practice of Criminal Asset Forfeiture in South African Criminal Procedure: A Constitutional Dilemma

V Basdeo

doi:10.4314/pelj.v17i3.06

Abstract

The deprivation of the proceeds of crime has been a feature of criminal law for many years. The original rationale for the confiscation of criminal assets at international level was the fight against organised crime, a feature of society described by the European Court of Human Rights as a scourge so that the draconian powers which are a feature of confiscation regimes around the world have been approved in circumstances which otherwise might have caused governments considerable difficulties before the international human rights tribunals. 1 The primary objective of this article is to determine if the asset forfeiture measures employed in the South African criminal justice system are in need of any reform and/or augmentation in accordance with the spirit, purport and object of the South African Constitution . 2 This article attempts to answer three questions. Firstly, why is criminal asset forfeiture important to law enforcement? Secondly, in which circumstances can property be forfeited and what types of property are subject to forfeiture? Thirdly, how is forfeiture accomplished, and what are its constitutional ramifications? Keywords : Criminal asset forfeiture; criminal procedure; confiscation; evidence; restraint stage; confiscation and realisation stage; constitutional; assets

Highlights

The practice of criminal asset forfeiture does raise a serious impasse between public interest and constitutional rights
In this article it is submitted that in circumstances where criminal asset forfeiture is employed as a law enforcement tool, the fulfilment by the state of its public responsibility results in a conflict between its public responsibility and its responsibility to respect the individual rights of persons whose property are subjected to asset forfeiture proceedings
3 Concluding remarks and recommendations In South Africa criminal asset forfeiture law is an integral part of criminal law enforcement

Summary

Introduction

The practice of criminal asset forfeiture does raise a serious impasse between public interest and constitutional rights. At the root of the tension pertaining to criminal asset forfeiture are certain principles which are generally accepted in societies that embrace liberal democratic values. This is of vital importance in South Africa, a country intensely threatened by organised crime.[4]

The restraint stage

The confiscation and the realisation stage41

Concluding remarks and recommendations

Literature