A note on the introduction of the nullum crimen, nulla poena sine lege or principle of legality in the South African asset forfeiture jurisprudence
Authors D Erasmus, NC Ndzengu
Affiliations: Associate Professor, Department of Criminal and Procedural Law, Faculty of Law, Nelson Mandela Metropolitan University, Port Elizabeth, South Africa and Attorney of the High Court of South Africa; Senior Deputy Director of Public Prosecutions: Asset Forfeiture Unit (AFU), Port Elizabeth and Attorney of the High Court of South Africa
Source: South African Journal of Criminal Justice, Volume 29 Issue 3, p. 247 – 272
The Prevention of Organised Crime Act 121 of 1998 provides for both criminal and civil forfeiture regimes. In the case of criminal forfeiture, the confiscation machinery provided for may only be invoked when the ‘defendant’ is convicted of an offence. Civil forfeiture provides for forfeiture of the proceeds of and instrumentalities used in crime, but this form of forfeiture is not conviction-based and may even be invoked when there is no prosecution. The National Director of Public Prosecutions (NDPP) via appointed legal practitioners chooses in each case which asset forfeiture regime to invoke, depending on the facts of the case. The recent judgment of Ntsoko v National Director of Public Prosecutions deals with a review of the decision of the NDPP to resort to civil forfeiture, as opposed to criminal forfeiture, and an attempt to constrain the exercise of these powers in this regard. The court held that the decision of the NDPP to invoke civil, instead of criminal forfeiture, is reviewable as a consequence of the principle of legality. In this contribution it will be argued that the court in fact introduced and extended the application of the principle of legality into asset forfeiture jurisprudence. The extension of the principle of legality was applied as a constitutional imperative or an interpretive tool to review the decision of the NDPP.