Landmark asset forfeiture case to be heard today

[Nat Quinn]

In a history-making case, the Knysna Magistrates’ Court will today rule whether the National Prosecuting Authority can confiscate the entire Knysna Taxi Rank because some guy sold drugs on its premises. 

Asset forfeiture has become a powerful tool in the arsenal of law enforcement agencies for prosecuting crime, and especially organised crime. Even in its most restrained form, it raises substantial constitutional and human rights issues.

A case before the Knysna Magistrates’ Court today, however, will make history in how broadly asset forfeiture may be applied.

Upon the conviction in October 2022 of a man for dealing drugs, the NPA sought to seize the Knysna Taxi Rank under provisions in the Drugs and Drug Trafficking Act 140 of 1992, which permit the forfeiture of any immovable property which was used in the commission of the offence of dealing in illegal drugs.

Asset forfeiture was initially conceived as a means to confiscate the proceeds of crime, and to prevent someone convicted of a crime from hiding or disposing of the proceeds of crime.

The procedure for asset confiscation in the Prevention of Organised Crime Act 121 of 1998 is strictly limited to the proceeds of crime, or an equivalent value, and specifies that any amount the court may order to be paid to the State may not exceed the value of the defendant’s proceeds from the offences or related criminal activities.

The Drugs Act provisions for forfeiture are broader, and more vague. They do not appear to be limited to property belonging to the criminal defendant, but to any property that is ‘used in connection with’ the crime.

Red flags

This raises very serious red flags. If the NPA’s case succeeds, this will set a precedent by which bars, shopping malls, petrol stations, and any other venue open to the public might be seized from legitimate owners because a member of the public sold drugs on the property.

The Act could even go so far as to confiscate the house of parents of a teenager who was caught in possession of enough drugs to be presumed to be dealing, if those drugs were ever stored under their roof.

If this sounds highly unjust, it is. The consequences of criminal actions should in all cases be limited to the criminal defendant, unless evidence can be produced that another party was a witting accomplice, before or after the fact. They should also in all cases be proportional to the crime committed.

If taking the house of parents of a drug addict sounds implausible, hysterical and exaggerated, consider what has happened in the country that turned asset forfeiture into a very profitable business for its police departments: the United States of America.

Frances and Joseph Lopez were working-class Americans living in Maui, Hawaii. After 50 years on the sugar plantations, they bought a small house for themselves and their son.

Their son suffered from mental health issues. He grew a marijuana plant in their back garden. They tried to cut it down, but he threatened suicide. He was arrested, given a probationary sentence for a first offence, and ordered to see a psychologist. He got better, and stopped smoking weed.

For several years, they thought the whole affair was behind them. Until one day, four years later, two offices from the local police department turned up and said they were seizing the house.

The statute of limitations for asset forfeiture was five years, and the police department, short of funds, had been combing their records to see whose properties they could seize to pay for their military-grade tactical gear and armoured assault vehicles.

Comprehensive forfeiture

The original target of America’s civil asset forfeiture laws, enacted in 1970, was the bosses of crime gangs. Before those laws, only goods that posed a threat to society could be seized, but the 1970 law extended that to the ‘proceeds of crime’.

The law required a conviction, until 1978, when it was modified to require only an indictment. The ‘War on Drugs’ was escalating. Even then, real estate could not be touched.

Enter Senator Joe Biden. In 1983, he tabled the bill that would become the Comprehensive Forfeiture Act, which together with the Comprehensive Crime Control Act of 1984, lowered the bar to assets believed to be equal in value to profits that were believed to be the proceeds of crime.

This left the decision to seize assets entirely to the discretion of police officers.

The law came into effect in 1986, a year before the Lopez boy was arrested. This story has repeated itself time and again. Asset forfeiture has been so widely abused in the US that these days, police seize more property than burglars do.

For even minor offences, Americans can have disproportionately valuable properties, vehicles and cash confiscated. In some cases, entirely innocent people have had cash seized, without ever being charged with a crime.

When it comes to police seizing your assets, Americans are presumed guilty until they can muster the lawyer’s fees to prove themselves innocent, and if they can’t do that, the cops simply won’t give their stolen assets back.

Asset forfeiture is now a major source of funding for police departments in the US, and they’re always on the lookout for valuable assets they can confiscate on the flimsiest of excuses, or none at all.

Woolworths looter

This has clearly not escaped our own police and prosecutors. In 2022, the infamous ‘Woolworths looter’, Mbuso Moloi, was photographed carrying a basket of stolen groceries to his Mercedes C300 Coupé.

The basket couldn’t possibly have been worth more than R1 000, and shoplifting is hardly a serious offence. Yet the Asset Forfeiture Unit in KwaZulu-Natal managed to secure a forfeiture order for his R1.2 million luxury car. Moloi appears to have had little else by way of assets, and was last seen in need of legal aid to defend himself.

How does this punishment fit the crime?

How does the forfeiture of the Knysna Taxi Rank fit the crime that a street dealer of tik committed on its premises? Are we, too, getting to the point where nobody’s property is safe if even minor crimes are committed on, near or with it?

Asset forfeiture has its place in pursuing large-scale organised crime. If you’re smuggling R380 million of cocaine on a R1.5 million boat into Knysna, fair enough. Seize the boat.

But asset forfeiture can easily run roughshod over people’s constitutional and human rights. If South Africa is following in America’s footsteps, nobody will be safe from the police anymore.

 

Landmark asset forfeiture case to be heard today – Daily Friend

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