The Legal Challenges of Criminal and Civil Asset Forfeiture in South Africa: A Comparative Analysis

Abstract

Asset forfeiture has emerged as the new ‘big idea’ for controlling criminal behaviour in the twenty-first century. The benefits of asset forfeiture are indisputable. The power of law enforcement to combat organised criminal activity is greatly increased. This is of particular importance in South Africa, a country deeply troubled by organised crime. As one scholar observed: ‘South Africa’s rising crime rate makes it one of the most disturbing and dangerous countries in the world.’ This article provides a legal description of asset forfeiture and focuses on contemporary substantive legal provisions. It describes, compares and analyses South African domestic legal provisions with those from the United States of America. While these comparisons are intended to provide a more comprehensive analysis and effective understanding of asset forfeiture, they make the research more challenging because of differences in legal systems. Asset forfeiture law is an integral part of criminal law enforcement in South Africa. This article attempts to answer three questions. First, why is asset forfeiture important to law enforcement? Second, what types of property are subject to forfeiture and in what circumstances? Third, how is forfeiture accomplished? The deprivation of the proceeds of crime has been a feature of criminal law for many years. The original purpose behind 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’,