IN THE HIGH COURT OF NAMIBIA
REPORTABLE
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN
DIVISION, WINDHOEK
JUDGMENT
Case no: POCA 9/2011
In the matter between:
MARTIN SHALLI
....................................................................................APPLICANT
and
THE ATTORNEY-GENERAL
.......................................................1ST
RESPONDENT
THE PROSECUTOR-GENERAL
.................................................2ND
RESPONDENT
Neutral Citation:
Shalli v The Attorney – General (POCA 9/2011) [2013] NAHCMD
5 (16 January 2013)
Coram: SMUTS, J et
GEIER, J
Heard: 19 October 2012
Delivered: 16 January 2012
JUDGMENT
SMUTS, J
The issue raised in this application
is the constitutionality of the Prevention of Organized Crime Act,
29 of 2004 (“POCA”). The applicant had in his notice of
motion applied to set aside the entire Act as unconstitutional and
invalid. In the alternative, sections 50-56 and 59-71 of POCA are
sought to be set aside. In argument, the applicant’s attack
became confined to the alternative and thus to the constitutionality
of chapter 6 of POCA. It is entitled “Forfeiture
of property and related matters”. Before referring to
this chapter within the scheme of the Act, and the challenges made
upon it, the facts which have given rise to this application are
first referred to.
The applicant is General Martin
Shalli. He is the former Chief of the Namibian Defence Force (“NDF”)
and Namibia’s former High Commissioner to Zambia. In his
capacity as Chief of the NDF, he was responsible for the
implementation of an agreement in terms of which the Government of
Namibia had purchased military equipment from a Chinese State-owned
company, Poly Technologies Inc. It is alleged that he had received
bribes from that company of some U$700,000 which, so it is alleged,
he placed in bank accounts in Zambia. It is alleged that this
conduct is in contravention of ss 33, 36, 43 and 45 of the Anti
Corruption Act, 8 of 2003 and of ss 4, 5 and 6 of POCA.
This application was prepared in
anticipation of a further ex parte application for a
preservation order under chapter 6 of POCA. There had been a prior
preservation order which was set aside for reasons which are not
relevant for present purposes. On 2 May 2012, this court, per Van
Niekerk J, granted a further preservation order in the form of a
rule nisi. This application was then brought. By agreement
between the applicant and respondents, the return date in the
preservation order is to stand over until this constitutional
challenge has been heard and finalized. In the preservation order,
the applicant was called upon to show cause why an order should not
be made in terms of s 51 of POCA for the preservation of the money
in two of the bank accounts in Zambia.
The founding affidavit, prepared as a
matter of urgency in view of the imminent issuing of a further
preservation order, is brief and lacking in specificity as to the
foundation of the constitutional challenges upon POCA as a whole or
upon the sections which are identified in the notice of motion and
referred to above in the alternative. The respondents take the point
that the founding affidavit does not sufficiently identify the
causes of action upon which the application is based or the
provisions of POCA at which they are directed. The respondents
however in their answering affidavit proceeded to identify three
features of chapter 6 of POCA which they considered to be those
which the applicant contended rendered the chapter 6 (and the Act)
unconstitutional. In a more detailed reply, the applicant would
appear to have accepted the identification of those three causes of
action.
Mr Trengrove SC who appeared for the
respondents submitted that the applicant in heads of argument filed
on his behalf had raised issues which were not pleaded or had not
been pleaded with the required degree of precision and specificity.
He submitted that the respondents had not had any or sufficient
opportunity to address them and to plead to them and place evidence
before court justifying the constitutional limitations contended for
by the applicant. Mr Trengrove however proceeded to address argument
on the causes of action identified and referred to in the answering
affidavit and submitted that these did not establish a cause of
action for the relief claimed in the notice of motion.
This court has previously stressed
that the rules of pleading apply to applications in which the
constitutionality of statutory provisions is raised. It stressed the
importance of precisely identifying the impugned provisions and that
the attack upon them should be substantiated so that a respondent is
fully apprised of the case to be met and evidence which might be
relevant to it.
This application will be addressed on
the basis of the causes of action as pleaded in the founding
affidavit and the issues identified as constituting the challenge in
the answering affidavit which were further dealt with in the
replying affidavit.
The overall purpose and
statutory context of POCA
Before referring to the provisions
relating to asset forfeiture embodied in chapter 6 of POCA, it is
apposite to refer to the overall purpose of POCA and its statutory
context. This court in Lameck referred to the restrictions
and prohibitions contained POCA and held that these were in the
public interest and serve a legitimate object, taking into account
the Act’s overall purpose. In doing so this court embraced the
way in which the purpose of similar legislation was set out by the
South African Constitutional Court in the following terms:
“The
Act’s overall purpose can be gathered from its long title and
preamble and summarised as follows: The rapid growth of organised
crime, money laundering, criminal gang activities and racketeering
threatens the rights of all in the Republic, presents a danger to
public order, safety and stability, and threatens economic stability.
This is also a serious international problem and has been identified
as an international security threat. South African common and
statutory law fail to deal adequately with this problem because of
its rapid escalation and because it is often impossible to bring the
leaders of organised crime to book, in view of the fact that they
invariably ensure that they are far removed from the overt criminal
activity involved. The law has also failed to keep pace with
international measures aimed at dealing effectively with organised
crime, money laundering and criminal gang activities. Hence the need
for the measures embodied in the Act.
It
is common cause that conventional criminal penalties are inadequate
as measures of deterrence when organised crime leaders are able to
retain the considerable gains derived from organised crime, even on
those occasions when they are brought to justice. The above problems
make a severe impact on the young South African democracy, where
resources are strained to meet urgent and extensive human needs.
Various international instruments deal with the problem of
international crime in this regard and it is now widely accepted in
the international community that criminals should be stripped of the
proceeds of their crimes, the purpose being to remove the incentive
for crime, not to punish them. This approach has similarly been
adopted by our Legislature . . .”.
It was also pointed out by Mr
Trengrove in argument that POCA also gave effect to the
international obligations of the Namibian state under various
international treaties. He referred to the United Nations Convention
against Transnational Organised Crime
which obliges state parties to take wide-ranging measures to combat
organised crime and specifically to adopt measures to enable the
confiscation of the proceeds of crime and property or equipment or
other instrumentalities used in or destined for use in the
commission of crimes. Mr Trengrove also referred to the United
Nations Convention against Corruption.
This obliges state parties to adopt measures to combat corruption
including those which enable the confiscation of the proceeds of and
instrumentalities of various forms of corruption by the freezing or
seizure of items for the purpose of their eventual confiscation. Mr
Trengrove also referred to the other provisions of POCA which give
effect to these treaties by criminalising racketeering in chapter 2,
criminalising various forms of money laundering in chapter 3,
criminal gang activities in chapter 4, confiscating the benefits of
crimes from criminals in chapter 5 and the forfeiture of
instrumentalities or proceeds of crime wherever they may be found,
whether in the hands of a criminal or not, as is set out in chapter
6.
Asset forfeiture under POCA
Both counsel referred to the two
fundamental forms of forfeiture provided for in chapters 5 and 6
respectively. Chapter 5, entitled “Confiscation
of Benefits of Crime”, essentially provides for
confiscation orders made against a person convicted of an offence.
This procedure is described in more detail by this court in Lameck.
This form of confiscation is often referred to as “criminal
forfeiture”. As is pointed out by Mr Trengrove, this is
somewhat of a misnomer as the order is a confiscation order and is a
civil judgment against the accused for the payment of an amount of
money to the State after a preceding enquiry has been completed. Mr
Gauntlett SC, who together with Mr F Pelser appeared for the
applicant, also referred to this as criminal forfeiture although he
also used the term of “forfeiture
in personam”
which may more accurately describe the procedure. He differentiated
this form of forfeiture from that contained in chapter 6 by
reference to the latter as in rem forfeiture – or civil
forfeiture as was also referred to by Mr Trengrove.
Mr Gauntlett however submitted that
both forms of forfeiture in POCA are constitutionally problematic in
that they:
violate the right to property in the
sense that property is rendered liable to forfeiture despite the
crime not having been proved in accordance with the standard
applicable to crimes, being beyond reasonable doubt, and
irrespective of whether the prosecution of the crime was continued
after the institution of POCA proceedings;
violate an accused’s fair trial
rights in the parallel criminal proceedings by requiring an accused
to provide a defence or prove an exception to the preservation or
forfeiture provisions; and
violate an accused’s right to a
fair procedure in POCA proceedings by truncating the proper
procedural safeguards applicable to civil proceedings in peremptory
terms; and
violate an accused’s right to
dignity by subjecting him or her to legal proceedings for the
perceived greater public interest allegedly served by POCA.
Given the nature of the applicant’s
challenge only the asset forfeiture required in chapter 6 is directly
addressed in this judgment.
Chapter 6 of POCA
The nature of the remedy under
chapter 6 is described in some detail in Lameck.
In short, the asset forfeiture regime under chapter 6 entails the
forfeiture of two categories of property. These are the
“instrumentalities”
of crime as defined in s 1 and the proceeds of unlawful activities,
also defined in s 1. The latter definition includes within its sweep
“any property or any
service, advantage, benefit or award that was derived, received or
retained, directly or indirectly in Namibia or elsewhere at any time
or after the commencement of this Act, in connection with or as a
result of any unlawful activity carried on by any person and
includes any property representing property so derived and includes
property which is mingled with property that is proceeds of unlawful
activity.”
This court in Lameck,
in following the Supreme Court of Appeal in South Africa
referred to asset forfeiture under this chapter as having the
following purposes:
“The
interrelated purposes of Ch 6 include: (a) removing incentives for
crime; (b) deterring persons from using or allowing their property to
be used in crime; (c) eliminating or incapacitating some of the means
by which crime may be committed; and (d) advancing the ends of
justice by depriving those involved in crime of the property
concerned . . .”.
Section 50 describes the proceedings
contained in chapter 6 as being civil proceedings and not criminal
proceedings. Mr Gauntlett however submitted that the description by
the legislature of the proceedings as civil could not insulate a
provision – or the provisions of the chapter – from
constitutional scrutiny. I agree. The substance of the process would
need to be examined. This court in Lameck held that the
nature of those proceedings are civil with reference to the
substantive provisions contained in that chapter.
Chapter 6 proceedings are thus not merely civil by reason of the
description of those proceedings contained in s 50(1). In reaching
its conclusion, the court in Lameck stressed that those
proceedings are not necessarily related to the prosecution of an
accused and are open to the State to invoke whether or not there is
a criminal prosecution. It is also apparent from the provisions
contained in the chapter that even if there is a prosecution, the
remedy would not be affected by its outcome. This court in Lameck
also made it clear that the remedy in chapter 6 is directed at the
proceeds and instrumentalities of crime and not at the person having
possession of them.
Although the remedy may contain some unusual features, it is in
essence and in substance civil in nature.
Asset forfeiture under chapter 6, is
dealt with by means of two forms of orders. There are firstly
preservation orders dealt with in ss 51-58 and forfeiture orders in
ss 59-68. In essence, preservation orders are given for the purpose
of freezing the instrumentalities and proceeds of crime pending the
final determination of an application for the forfeiture of those
items. As is pointed out by Mr Trengrove, a regime of this nature is
in furtherance of the Convention against Transnational Organised
Crime and the Convention against Corruption. Both oblige state
parties to take measures to enable the freezing or seizure of such
items and for the purpose of their eventual confiscation.
The power of a court to grant
preservation orders is set out in s 51 which provides:
“(1)
The Prosecutor-General may apply to the High Court for a preservation
of property order prohibiting any person, subject to such conditions
and exceptions as may be specified in the order, from dealing in any
manner with any property.
(2)
The High Court must make an order referred to in subsection (1)
without requiring that notice of the application be given to any
other person or the adduction of any further evidence from any other
person if the application is supported by an affidavit indicating
that the deponent has sufficient information that the property
concerned is-
(a)
an instrumentality of an offence referred to in Schedule 1; or
(b)
the proceeds of unlawful activities,
and
the court is satisfied that that information shows on the face of it
that there are reasonable grounds for that belief.
(3)
When the High Court makes a preservation of property order it must at
the same time make an order authorising the seizure of the property
concerned by a member of the police, and any other ancillary orders
that the court considers appropriate for the proper fair and
effective execution of the order.
(4)
Property seized under subsection (3) must be dealt with in accordance
with the directions of the High Court.”
In terms of this section, this court
must make a preservation order if the application is supported by
evidence which discloses reasonable grounds to believe that the
property in question is an instrumentality of an offence referred to
in schedule 1 or the proceeds of unlawful activities as defined.
Once an order has been made, s 52
requires the Prosecutor-General to publish an order in the
Government Gazette, and to give notice to all persons known to have
an interest in that property so as to provide them with the
opportunity to apply for their interest in the property to be
excluded and to oppose its forfeiture.
Forfeiture orders referred to in ss
59 - 68, provide for the forfeiture to the State of property which
is the subject of a preservation order. The Prosecutor-General is
empowered to apply for forfeiture on notice to interested parties.
This court may only grant a forfeiture order if it is found on a
balance of probabilities that the property is an instrumentality of
an offence referred to in schedule 1 or the proceeds of unlawful
activities. The far reaching effect of these orders is ameliorated
by certain provisions in chapter 6 directed at protecting affected
parties, given the fact that these orders are directed at the
instrumentalities or proceeds of crime themselves wherever found and
are not necessarily directed against a convicted criminal who used
or subsequently possesses those items which may be preserved or
declared forfeited in the hands of third parties.
The legislature in chapter 6 also
provides for an innocent owner defence to a forfeiture order to a
third party. In ss 63 and 65, third parties would need to establish
on a balance of probabilities that their interest in the property
had been acquired legally and for consideration at a time when they
did not know and did not have reasonable grounds to suspect that the
property constituted an instrumentality or the proceeds of a crime.
I have already referred to the power
of the court on application to exclude the operation of a
preservation order upon an interest in the property being
established by a person subject to that order.
Reasonable living and legal expenses
can, upon application, be sought by an affected party from the
property subject to such an order. A court may also rescind or vary
a preservation order if it deprives an applicant of the means to
provide for reasonable living expenses and causes undue hardship
outweighing the risk that the property may be destroyed, lost,
damaged, concealed or transferred.
The applicant’s challenges
upon chapter 6
It would appear from the applicant’s
founding affidavit that his challenge to chapter 6 is essentially
threefold. Firstly the applicant contends that the civil forfeiture
contemplated in chapter 6 is contrary to the constitutional
presumption of innocence and in conflict with his right to a fair
trial enshrined and protected by art 12 of the Constitution.
Secondly, the applicant contends that the civil forfeiture regime in
chapter 6 impinges upon his constitutional right to the protection
of his property protected under art 16. Thirdly, there is the
applicant’s challenge that civil forfeiture under chapter 6
violates his right to dignity protected by art 8 of the
Constitution.
Presumption of innocence and the
right to a fair trial
Mr Gauntlett contended that there was
not the required connection which rendered need to exist between
forfeiture under chapter 6 and its purpose which rendered the
deprivation as being procedurally fair. He submitted that there is
no rational connection between the means and end or should a
connection be found to exist, that the connection justifies a higher
standard than the ordinary civil onus brought about by chapter 6
which results in the deprivation being procedurally unfair (and in
conflict with art 12). Mr Gauntlett submitted that the
constitutional presumption of innocence requires that it is for the
prosecution to prove guilt of an accused and that proof must be
beyond reasonable doubt. He submitted that in order to pass
constitutional muster, the standard of proof in confiscation under
chapter 6 should be proof beyond reasonable doubt or a civil
standard of proof which for all practical purposes is
indistinguishable from the criminal standard. In support of this
contention he referred to certain authority emanating from the
European Court of Human Rights.
He further submitted that it also offended the constitutional
presumption of innocence for POCA to impose a presumption of guilt
in the sense of presupposing that a crime has been committed.
Mr Trengrove on the other hand
contended that civil forfeiture under chapter 6 is directed at
property and the proceeds and instrumentalities of crime and not
against wrongdoers. He relied upon what was stated by
this court in Lameck as well as by the South African Supreme
Court of Appeal
and the Supreme Court of Canada in support of this contention.
Mr Trengrove submitted that a
defendant in forfeiture proceedings under chapter 6 is not charged
with an offence and that the presumption of innocence in art 12(1)
(d) would not apply. Mr Trengrove further pointed out that art 12(1)
(d) is identical in material respects to art 6(2) of the European
Convention, and that significantly, the European Court of Human
Rights, the Privy Council and the House of Lords and more recently
the Supreme Court (in England) have consistently held that asset
forfeiture generally and civil forfeiture in particular are not
subject to the criminal standard of proof in terms of art 6(2) (of
the European Convention). Mr Trengrove referred to Phillips v The
United Kingdom
where the European Court held that civil proceedings are not subject
to the presumption of innocence in art 6(2).
That court held that the proceedings for civil recovery of proceeds
under the Proceeds of Crime Act of 2002 (of England and Wales) are
civil proceedings and not proceedings where a person is charged with
a criminal offence within the meaning of art 6(2) of the European
Convention.
Mr Trengrove further referred to a
decision of the Privy Council
and the approach of the House of Lords in R v Rezvi
that criminal forfeiture proceedings are civil proceedings which are
not subject to the presumption of innocence in art 6(2). He further
referred to a recent decision of the Supreme Court (of England and
Wales) in Gale
which came to the same conclusion that civil forfeiture proceedings
under Part V (of the English) Proceeds of Crime Act 2002 are not
subject to the presumption of innocence. In the leading judgment of
that court, Lord Phillips distinguished the decisions of the
European Court including the case of Y v Norway, relied upon by the
applicant, and concluded by stating:
“The
commission by the appellants in the present case of criminal conduct
from which the property that they held was derived, had to be
established according to the civil and not the criminal standard of
proof. For reasons that I have given, that remains my conclusion. It
is a conclusion which, prior to Geerings, appeared to be firmly
founded on the decision of the Privy Council in McIntosh. …..
In my view that foundation is unshaken.”
Mr Gauntlett referred to certain
decisions of the United States Supreme Court. He referred to Austin
v United States
where that court rejected the argument that civil forfeiture is
justified on the basis of removing the instruments of crime. Mr
Gauntlett also referred to Halper v United States.
Mr Trengrove submitted that the American cases relied upon by the
applicant are however not helpful by reason of the fact that
different legal issues were raised by them such as a violation of
the double jeopardy clause of the Fifth Amendment and the question
whether criminal forfeiture violated the excessive fines clause of
the Eighth Amendment.
I have already referred to the
finding of the full court in Lameck that asset forfeiture
proceedings are civil in nature. I can find no reason why that
finding (that civil forfeiture under chapter 6 is a civil remedy
unrelated to a criminal prosecution and punishment of offenders)
should not be followed. As civil proceedings and given their nature,
they do not engage art 12(1) (d) of the Constitution. The
presumption of innocence would not in my view arise. This approach
is also consonant with the applicable foreign authority referred to
above raised within a similar context.
I accordingly conclude that asset
forfeiture proceedings in chapter 6 of POCA do not violate the
presumption of innocence applicable to criminal proceedings embodied
in art 12(1) (d) as that subtitle is not applicable to such
proceedings.
It was also contended on behalf of
the applicant that s 51(2) infringes upon the right of a fair
hearing by requiring in peremptory terms that a preservation order
is to be sought and granted without notice to the owner of the
property. This sub-section makes it clear that a court hearing such
an application must make a preservation order without requiring
notice of the application to be given to any person affected by it
once the application discloses reasonable grounds for a belief that
the property concerned is an instrumentality of an offence referred
to in schedule 1 or the proceeds of unlawful activities.
Mr Gauntlett referred to the similar
provision in legislation in South Africa. It is in strikingly
similar terms. Yet instead of stating that a court “may”
grant an order, (as in the South African legislation), the Namibian
legislature chose to employ the term “must”
instead. He submitted that the use of the term “must”
in those circumstances would indicate a clear intention on
the part of the Namibian legislature to require that such orders
must be granted without notice, with “must”
being given its ordinary peremptory meaning. He submitted that the
peremptory and compulsory requirement of making a determination of
this nature on an ex parte basis offends against the right to
a fair trial protected by art 12(1) (a) of the Constitution.
Mr Trengrove however countered that
the “reasonable grounds
to believe” standard for the granting of a preservation
order sought ex parte is the same standard employed by ss 20
and 21 of the Criminal Procedure Act, 51 of 1977 for the grant of a
search warrant where an application for that warrant is also made ex
parte. He further submitted that the purpose of such an order is
to preserve the property pending the determination of the forfeiture
application and that there would be inherently high risks in giving
notice to those with an interest in the instrumentalities and
proceeds of crimes who could dispose of them, encumber them or even
destroy them if notice were to be given. He referred to the approach
of the High Court in Phillips which referred to the
technological advances made with regard to the transfer of funds at
great speed to any locations in the world and the reason why the
procedure for issuing a restraining order should be as expedient as
possible.
Whilst I accept that in applications
of this nature compelling circumstances may frequently be raised to
justify dispensing with notice to a party given the nature of such
applications, the legislature has instead of vesting a court with a
discretion to determine matters on that basis, made it peremptory
for a court to grant such applications without notice and without
the need for the prosecuting authorities to raise exceptional or
compelling circumstances why notice should not be given. I would
have thought that it should have been left to a court to deal with
an application like this on the latter basis, requiring prosecuting
authorities to justify dispensing with prior notice of such
applications. It is not at all clear to me why the legislative
decided otherwise instead. It would clearly have been better
legislative policy and better accord with fundamental principles
governing the fairness of proceedings to have vested that discretion
in the court in each case so that the prosecuting authorities would
be required to justify the use of proceedings without notice to
parties affected by those proceedings. That would plainly have been
the preferable course and one which the legislature should in my
view have adopted.
But would the failure to have done so
and to require the court to grant orders once the reasonable belief
is established on the papers violate an affected person’s
(such as the applicant) constitutional right to a fair trial? Mr
Trengrove submitted that the court may, as it had done in this
instance, grant a rule nisi which he contends would comply
with art 12 inasmuch as the requirements of the audi alteram
partem rule would be met, given the inherent flexibility of that
rule. The court would be granting a temporary order which an
affected person could answer upon at a return date and in fact may
even anticipate that return date beforehand. He further referred to
the approach of a Full Court which had endorsed the approach of
South African Courts that “an
order granted ex
parte is by its
nature provisional irrespective of the form it takes.”
Whilst the formulation of s 51(2) and
the use of the term “must”
in that sub-section can with some justification be criticised, it is
not clear to me that the use of that term and the peremptory
requirement of an ex parte application is in violation of art
12 and the rights of a fair trial of a person affected by such an
application. A court hearing such an application should, as occurred
in this instance, even if satisfied that the requisites for the
granting of an order are to established, do so by way of a rule nisi
which would afford a person affected the opportunity to be heard by
the order. The interim operation of the order would achieve its
purpose whilst a rule nisi would afford the person affected
by the order the opportunity to be heard in due course or as a
matter of urgency if that person would want to anticipate the order.
By approaching the section in this way, as Van Niekerk, J did in
this matter, would in my view meet the requirements of a fair trial
protected by art 12(1). The applicant’s right to a fair trial
in this matter were in my view not infringed by s 51 (2). But even
in the absence of a rule nisi, as the Full Court has in my
view, with respect, correctly held, an order granted ex parte
is in any event provisional and subject to being set aside on
application by a party affected by it.
It follows that whilst being
unfortunately formulated, the provisions of s 51(2) do not in my
view violate the right of a fair trial protected by art 12(1) nor
the applicant’s right to a fair trial in this matter.
The right to property
Mr Gauntlett contended that the civil
forfeiture regime in chapter 6 impinges upon the constitutional
protection of property rights. He submitted that it was no answer to
this challenge for the respondents to contend that property procured
through crime is not protected by art 16. He submitted that such an
approach would beg the underlying constitutional question as to
whether civil forfeiture under chapter 6 is compatible with the
Constitution, despite the justification for the deprivation of
property (i.e. the fact that a crime must be found to have been
perpetrated) not being required to be established. He further
submitted that the respondents’ approach amounted to a “guilty
property fiction” which would not provide a
constitutionally competent justification. In support of this
argument, he drew support from an article by Prof van der Walt.
Mr Trengrove argued that if the money
in the applicant’s Zambian banking accounts are the proceeds
of bribes received from Poly Technologies Inc, then the applicant
would not be able to credibly argue that art 16 protected him
against forfeiture of those ill-gotten gains. He further contended
that the applicant’s ownership of bribe money would not be
constitutionally protected at all or even if it were to be, then the
forfeiture of the money pursuant to the purposes of chapter 6 which
would be a reasonable measure of general application in pursuit of
the legitimate objectives in the public interest and thus meet the
test for constraints upon the right to property laid down by the
Supreme Court in Grape Growers.
I agree with both of those
submissions. That would also accord with what was decided in Lameck
and the approach of the Supreme Court in Grape Growers
referred to by the court in Lameck.
This court however held in Lameck
that the proceeds of unlawful activity would not constitute property
in respect of which constitutional protection is available.
This court in that matter further held
that the protection of property under art 16 is in any event not
absolute but subject to constraints and restrictions which are
reasonable, in the public interest and for a legitimate purpose as
had been made clear by the Supreme Court in Namibia Grape Growers
and Exporters Association and Others v Ministry of Mines and Energy
and Others
where the following was stated:
“If
it is then accepted, as I do, that art 16 protects ownership in
property subject to its constraints as they existed prior to
independence, and that art 16 was not meant to introduce a new format
free from any constraints then, on the strength of what is stated
above, and bearing in mind the sentiments and values expressed in our
Constitution, it seems to me that legislative constraints placed on
the ownership of property which are reasonable, which are in the
public interest and for a legitimate object, would be constitutional.
To this may be added that, bearing in mind the provisions of the
Constitution, it follows in my opinion that legislation which is
arbitrary would not stand scrutiny by the Constitution . . .”.
Mr Trengrove also referred to the
approach of the South African High Court
where the Court held that by depriving a criminal of the spoils of
crime gives expression to the common law principle that no one
should be allowed to benefit from his own wrongdoing.
Mr Trengrove also referred to the approach of the Supreme Court of
Appeal in the Cook Properties matter
where the Court held that it is constitutionally permissible for the
State to employ the remedy of civil forfeiture to induce members of
the public to act vigilantly in relation to goods they own or
possess so as to inhibit crime.
Mr Trengrove also referred to the
concluding portion of Prof van der Walt’s article where the
latter stated:
“In
principle, it seems acceptable to treat both criminal and civil
forfeiture of property as regulatory deprivations that are justified
by the State’s police power to regulate and control the use of
property in the public interest (in this case, for the legitimate
public purpose of effective policing, prosecution and conviction of
criminals involved in serious, organised and socially harmful
criminal activities). Therefore, even if a civil forfeiture causes
loss of property or other serious financial disadvantage, it could in
principle still be justifiable, without compensation, provided that
there is a rational connection between the public purpose served, the
means adopted and the individual effects --- there is nothing really
new or different about this notion or the adjudicative processes
involved in it, the courts in most jurisdictions are willing and
well-suited to apply them fairly and reasonably.”
Mr Trengrove also referred to the
approach of the European Court as well as the House of Lords in
Rezvi
where Lord Steyn concluded that asset forfeiture “is
a proportionate response to the problem which it addresses”. I
respectfully agree with that approach as well as with the South
African High Court in Phillips and the South African Supreme
Court of Appeal in the Cook Properties matter.
I accordingly conclude that chapter 6
does not violate the right to property under article 16 of the
Constitution because art 16 does not protect the ownership or
possession of the proceeds of crime. I further reiterate the
approach of the court in Lameck that even if chapter 6 were
to infringe upon art 16, then it would in my view be a proportionate
response to the fundamental problem which it addresses, namely that
no one should be allowed to benefit from their wrongdoing and that a
remedy of this kind is justified to induce members of the public to
act with vigilance in relation to goods they own or possess so as to
inhibit crime. It thus serves a legitimate public purpose.
The right to dignity
The challenge on this ground is not
fully specified in the founding papers. It was however contended by
Mr Gauntlett on the applicant’s behalf that the scapegoating
of individuals in order to deter crime by making examples of them,
is a violation of human dignity as it treats an individual as a
means to an end (of dis-incentivising of criminal conduct) without
proving that the individual concerned is guilty of the underlying
criminal act. He further submitted that the humiliation which
accompanies civil forfeiture by requiring an individual to disclose
all their private financial affairs to the police and then in public
and on trial, would amount to humiliation and be in violation of art
8.
Mr Trengrove however on the other
hand submitted that even though proceedings for the forfeiture of
instrumentalities or the proceeds of crime would result in
indignity, this would be inherent in proceedings of that kind. But
because the proceedings themselves are constitutionally permissible,
he argued that the indignity inherent in them would thus be
constitutionally sanctioned and would not violate art 8(1). I agree
with that submission. Once the proceedings themselves are found not
to violate the Constitution in other respects, the inherent
indignity which would accompany them would thus not in my view
violate art 8 of the Constitution.
Conclusion
It would follow that the applicant
has not in this application established that the provisions of
chapter 6 of POCA violate his constitutional rights in the respects
contended for in the application.
The application is accordingly
dismissed with costs. Those costs include the cost of one instructed
and one instructing counsel.
__________________
DF SMUTS
Judge
I agree
___________________
H GEIER
Judge
APPEARANCES
APPLICANT: JJ Gauntlett SC and F
Pelser
Instructed by LorentzAngula Inc
RESPONDENTS: W Trengrove SC
Instructed by Government Attorney
Shalli v Attorney – General and Another (POCA 9/2011) [2013] NAHCMD 5 (16 January 2013);