According to a 6 January 2002 press report a High Court judge objected to the legislation that gave birth to the Asset Forfeiture Unit. He declared that the way in which the legislation was framed indicated that it was introduced to lend a façade of respectability to a process of civil forfeiture controlled by the prosecuting authorities while preventing the courts from exercising their normal judicial authority. The courts sole function in terms of the legislation is to rubber stamp actions already taken and the judge wants the courts to be more than rubber stampers of such actions.
The judge stated that the Act was being applied to cases that could not by the wildest stretch of the imagination be categorised as organised crime. Forfeiture cases are routinely portrayed as justifiable seizure from organised criminals in accordance with the rule of law. However, asset confiscation from unconvicted suspects is a profound violation of the rule of law and of the Constitution and that it does so was apparently condoned on the pretext that extreme powers are necessary to fight organised crime.
Application of the rule of law excludes, as far as possible, the rule of man in the form of executive discretion and when discretion is unavoidable it must be subject to objective criteria exercised by way of non-discriminatory procedures of universal application. Such law requires a separation of powers ensuring that the executive does not exercise judicial functions. It further requires that people are presumed innocent until proven guilty in an independent and autonomous court. Assets may be seized, or any other coercive action taken, only by order of court in terms of objective non-discretionary law, excepting in isolated and unusual circumstances when a delay would defeat the purpose of the law.
In a paper entitled The Asset Forfeiture Unit – a warning from history (Free Market Foundation, July 2001) I criticised the nature of the powers being granted to officials and predicted that they would be misused. History shows us that the granting of excessive power inevitably produces an irresistible temptation for its abuse, so there was nothing remarkable about my prediction. What was remarkable, however, was the immediacy and extent of the abuse and the apparent disdain shown for the courts and the Constitution. The officials have repeatedly used their powers in unwarranted circumstances. When I wrote the paper my prediction was already being borne out. The unit had confiscated over R200m of private property and while a spokesman for the unit kept publicly declaring that the unit was after crime bosses none of the forfeitures involved organised crime.
The judge in the reported case refused to condone the confiscation of R4.1m from an individual who was patently not involved in organised crime. Will the Act, as a result, be applied in future only to organised crime, for which purpose it was ostensibly intended, or will it gather dust? The Asset Forfeiture Unit will undoubtedly prefer easy targets and is unlikely to have much stomach for raiding hardened organised criminals. I therefore predict that the protesting judge will be treated as a mere aberration and the illegitimate confiscations will inexorably continue.
The Act is so offensive to the constitutional right to property that it is jarring when first encountered. I was consequently not surprised that the South African courts, steeped in our Roman-Dutch legal tradition, overturned most initial forfeitures. I then attended public seminars where it was suggested that the legislation would survive because judges would get used to it. We heard from consultants offering their services in asset forfeiture matters and I was reminded of John Austins famous question: If parliament be sovereign, what would happen if it passed a law that all blue eyed babies be put to death? The American answer was a constitution to protect the people from excessive power. Their courts, in theory, declare bad law unconstitutional. The British had no such confidence in a written constitution and held that in the face of flagrant violations of fundamental principles of justice, society must revolt. In either system, if the legislature passed such a law there would be no shortage of consultants to help locate blue-eyed babies. Lamentably, judges might merely get used to the legislation.
Apart from the per se illegitimacy of the legislation we need to be gravely concerned about what happens to the proceeds of the confiscated assets. I pointed out in my paper that the history of such forfeitures shows that the driving force is the disposal of the money. A study of asset forfeiture cases conducted in the USA produced shocking results. In New Jersey prosecutors and police were entitled to keep the money for themselves, giving them a direct financial stake in confiscation. From 1998 to 2000 they collected over $32 million. Government officials used the funds to pay themselves overtime, buy cars, pay for golf outings, purchase new furniture and send prosecutors to conventions.
Such perverse incentives all too easily lead to abuse and injustice but society will not learn from its past. Over a hundred years ago Britain adopted legislation that gave bonuses to police on the successful prosecution of criminals the worse the crime, the greater the bonus. When it was discovered that innocent people had been executed on fabricated evidence to secure convictions and bonuses, the legislation, known as the Blood-money Act, was repealed. The repeal did not occur because innocent people had been convicted but because English juries would no longer convict on police evidence!
What travesties of justice will South Africans witness before the asset forfeiture legislation is consigned to the wastebasket where it belongs?
Author: Robert Vivian is the IISA Professor of Risk Management at the University of the Witwatersrand. This article may be republished without prior consent but with acknowledgement to the author. The views expressed in the article are the authors and they are not necessarily shared by the members of the Free Market Foundation.
FMF Article of the Week\22 April 2003
