The Prevention of Organised Crime Act 121 of 1998 (POCA) is a statute which aims at preventing organised crime in South Africa. Section 38, 48, 50, and section 1 gives a person the right to apply for certain property to be preserved (kept in a safe place) and then forfeited to the state if such property is either:
- an instrumentality of an offence;
- the proceeds of unlawful activities; or;
- property associated with terrorist or related activities.If a person believes that property is an instrumentality of an offence, the proceeds of unlawful activities, or property associated with terrorist or related activities, they must prove these elements on a balance of probabilities. If either of these elements are not proven then the provisions of POCA will not apply and the property cannot be forfeited to the state.Recently McLarens were involved in an asset forfeiture application brought by the National Director of Public Prosecutions (the NDPP) against one of its client’s, Kalmar Industries, in Port Elizabeth where the test of POCA was applied.
When deciding on the issue the court looked at the provisions of Section 1 of POCA which defines an instrumentality of an offence as “any property which is concerned in the commission or suspected commission of an offence at any time before or after the commencement of this Act, whether committed within the Republic or elsewhere”.
The court also looked at other cases one of which was The National Director of Public Prosecutions v Carolus 1999 (2) SACR 27 (C) wherein it was held that “property would only qualify as an instrumentality where it has been used as a means or instrument in the commission of an offence, or where it is otherwise involved in the commission of the offence”. In the present matter the property concerned was a lifting platform which was used to repair equipment in the Port Elizabeth Harbour.
The NDPP alleged that the lifting platform had been stolen by Kalmar and was therefore the instrumentality of an offence. The court applied the test in Section 38 of POCA and found that the lifting platform could not have been the instrumentality of an offence and as such the requirements of POCA had not been met and the property could not be forfeited to the state.
The application for a forfeiture order was dismissed and costs were awarded against the National Director of Public Prosecutions.
Read the KalmarJudgement