Prophet v National Director of Public Prosecutions (CCT56/05) [2006] ZACC 17; 2007 (2) BCLR 140 (CC); 2006 (2) SACR 525 (CC) ; 2007 (6) SA 169 (CC) (29 September 2006)

Case Caption:

Prophet v National Director of Public Prosecutions (CCT56/05) [2006] ZACC 17

Case URL:

http://www.saflii.org/za/cases/ZACC/2006/17.html

Summary Significance:

Civil forfeiture provides a unique remedy used as a measure to combat organized crime. It rests on the legal fiction that the property and not the owner has contravened the law. It does not require a conviction or even a criminal charge against the owner.

Applicable laws:

The laws forming the basis of the claim included the Bill of Rights of the South African Constitution as read with the Prevention of Organized Crimes Act.

Brief Facts:

The Applicant is the owner of immovable property situated at 54 Balfour Street, Woodstock, Cape Town (the property) which is the subject matter of the litigation in these proceedings. He was, together with Ms Nicola Daniels (Ms Daniels) and Mr Dominic Hiebner (Mr Hiebner), arrested and charged with having contravened Sections 3 and 5 of the Drugs and Drug Trafficking Act (the Drugs Act) for dealing in prohibited substances and the alleged manufacturing of the scheduled substances respectively. The circumstances that gave rise to the arrests and culminated in these proceedings are set out in the opposing affidavits lodged by the Respondent and from which the following emerge. During December 2000 Detective Captain Johan Smit (Captain Smit), an investigating officer in the South African Police Service (SAPS) and the narcotics detective designated by the South African Narcotics Bureau (SANAB) to monitor chemicals in the Western Cape, received information about the unlawful importation into South Africa of phenylacetic acid. This substance is listed in Part II of Schedule 1 to the Drugs Act. The substance, it is stated, may be used to manufacture methamphetamine, an undesirable dependence-producing substance listed in Part III of Schedule 2 to the Drugs Act. On 30 January 2001 Captain Smit and his colleagues observed the Applicant receiving 2kg of phenylacetic acid from Mr Hiebner. The substance was taken to the property by the Applicant. Further investigation established that the Applicant subsequently purchased 500g of caustic soda and three litres of distilled water from the Litekem Pharmacy in Cape Town, and took them to the property. Relying on these facts, the Respondent initiated proceedings in the High Court in terms of Section 38 of the POCA for a preservation order in respect of the property. A preservation order was granted and a curator bonis was appointed to assume control over the property. The Applicant applied for stay of the civil proceedings but the same was declined by the High Court. The Applicant further applied to the High Court for leave to appeal to the Supreme Court of Appeal which was also declined. The Applicant then applied to the Supreme Court of Appeal for leave to appeal against the judgment and order of the High Court. On 29 September 2005 the Supreme Court of Appeal confirmed the decision of the High Court. Aggrieved by the decision of the Supreme Court of Appeal, the Applicant appealed to the Constitutional Court alleging violation of his rights to dignity, privacy, fair trial, silence, the right to be presumed innocent until proven guilty and the right not to be arbitrarily deprived of property.

Issues for Determination:

I.The constitutional challenge to the POCA;
II.The constitutionality of the forfeiture in this case and the proper constitutional approach to that question;
III.Whether the evidence obtained in consequence of the search was admissible for the purpose of determining whether the property was an instrumentality of an offence;
IV.The question of the reverse onus; and
V.The contemporaneous institution of both the civil and criminal proceedings.

Holding:

The Court observed thus: “While the purpose and object of Chapter 6 must be considered when a forfeiture order is sought, one should be mindful of the fact that unrestrained application of Chapter 6 may violate constitutional rights, in particular the protection against arbitrary deprivation of property particularly within the meaning of Section 25(1) of the Constitution, which requires that “no law may permit arbitrary deprivation of property.” The court relied on the case of First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service and Another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance (FNB)[44] where the Court held that “arbitrary” in Section 25(1) means that the law allowing for the deprivation does not provide sufficient reason for the deprivation or allows deprivation that is procedurally unfair. The Court said— “For the validity of such deprivation, there must be an appropriate relationship between means and ends, between the sacrifice the individual is asked to make and the public purpose this is intended to serve. It is one that is not limited to an enquiry into mere rationality, but is less strict than a full and exacting proportionality examination.” In the above mentioned case, the Court set out factors relevant in establishing arbitrariness in relation to deprivation of property as follows: a)The relationship between the purpose of the deprivation and the person whose property is affected; b)The relationship between the purpose of the deprivation, the nature of the property affected and the extent of the deprivation; c)A more compelling purpose is required where the property rights involved are the ownership of land or corporeal movables; d)The reasons should be more compelling as more incidents of ownership are affected; e)Depending on the nature and extent of the rights affected, the test is one that comprises elements of rationality and proportionality, moving closer towards proportionality as the effects increase; and f)The inquiry takes full account of the relevant circumstances of each case. The Court, in dismissing the appeal held that that “the forfeiture of the property in this case is neither significantly disproportionate nor disproportionate, given the nature of the relevant offence, and the extent to which the property was used as an instrument of that offence. The Applicant’s argument that the forfeiture of his property in this case constituted an “arbitrary deprivation of property” inconsistent with the Constitution must therefore fail.” Civil forfeiture provides a unique remedy used as a measure to combat organized crime. It rests on the legal fiction that the property and not the owner has contravened the law. It does not require a conviction or even a criminal charge against the owner. This kind of forfeiture is in theory seen as remedial and not punitive. The general approach to forfeiture once the threshold of establishing that the property is an instrumentality of an offence has been met is to embark upon a proportionality enquiry – weighing the severity of the interference with individual rights to property against the extent to which the property was used for the purposes of the commission of the offence, bearing in mind the nature of the offence.

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