The asset forfeiture unit

Performance and priorities



The Asset Forfeiture Unit in the office of the National Director of Public Prosecutions is a major component of the state’s war against organised crime in South Africa. Using new legislation the unit can forfeit property tainted by criminal activity to the state. Notwithstanding some initial problems in the courts, the unit has an ambitious set of priorities for the year.

Civil asset forfeiture

The Prevention of Organised Crime Act of 1998 makes provision for property tainted by criminal activity to be forfeited to the state by way of a civil action. Commonly called civil asset forfeiture, this allows the state to confiscate suspected criminals’ assets purely through a civil action against the property without the need to obtain a criminal conviction against the owner of the property.

On application by the National Director of Public Prosecutions (NDPP), the High Court can make an order forfeiting property to the state that the court, on a balance of probabilities, finds to be "an instrumentality" of a crime, or is the "proceeds of unlawful activities". The validity of such an order is not affected by the outcome of criminal proceedings. That is, a suspected criminal can be acquitted in a criminal court where the state has to prove its case beyond a reasonable doubt (which is a higher burden of proof than a ‘balance of probabilities’), and still have his property forfeited to the state.

Money generated through the forfeiture of assets is deposited into a Criminal Assets Recovery Fund. Such monies will be used as financial assistance to law enforcement agencies involved in combating organised crime, money laundering, criminal gang activity and crime in general, and to assist victims of crime. In the United States where similar civil asset forfeiture legislation has been in existence since 1970 forfeiture actions raise about $500 million for the state per year.

Asset Forfeiture Unit

The NDPP set up the Asset Forfeiture Unit (AFU) in mid 1999 after it became clear from consultations with local and international experts that a specialist unit should be set up to ensure that forfeiture is used effectively.

International experience has shown that civil asset forfeiture legislation was often implemented poorly because the police and prosecutors tended to focus their activities on achieving convictions. Moreover, forfeiture involved complex new civil law about which most police officers and prosecutors knew very little. In the United States it was only when Congress voted a special budget to employ forfeiture specialists in each of the US Attorney offices that civil asset forfeiture legislation was used effectively in that country.

In South Africa, the AFU was created to serve as a dedicated unit to build up the necessary expertise to deal with the complexities of forfeiture and whose performance is measured solely in terms of forfeiture. The AFU adopted a multi-disciplinary approach employing some 20 criminal and civil lawyers, financial investigators and accountants.

The AFU is planning to place forfeiture specialists in the offices of the provincial Directors of Public Prosecutions. They would work side by side with prosecutors to assist the latter with forfeiture related work. In this way expertise on forfeiture would be fostered throughout the prosecution service. This will serve to ensure that forfeiture becomes an integral part of normal law enforcement work in South Africa.

AFU performance

According to the head of the AFU, Willie Hofmeyr, the unit was warned by international law enforcement experts to expect much litigation from rich and powerful criminals who are desperate to hang on to their ill-gotten gains. Such criminals can afford to employ the best legal brains in the country to try and find any possible weakness or lack of clarity in the law.

Initially the AFU experienced difficulties on the issue of whether the forfeiture law should apply retrospectively. In other words, whether the law covered assets accrued before the Prevention of Organised Crime Act was promulgated. This lead to the AFU losing three of its first six court cases. However, overall, the unit has been successful. By the beginning of June 2000 the unit had initiated 28 cases and was successful in 23.

In total, assets seized by June had exceeded R70million. However, at that time only one case involving R145 000 had made it through the complete legal process with the money being paid into the Criminal Assets Recovery Fund.

AFU priorities

The AFU has set itself a number of priorities for 2000:

  • To take the initial ‘seizure’ actions — where suspected criminals’ assets were merely frozen — to the next stage in the legal process where they are forfeited to the state. This will permit their proceeds to be paid into the Criminal Assets Recovery Fund.
  • To initiate some 100 forfeiture cases over the next year.
  • To target some of the major crime figures and syndicates who are on the ‘most wanted’ list of the NDPP. These cases require complex investigations and require a long-term approach.
  • To fight test cases in the courts to obtain greater clarity on the courts’ position on civil asset forfeiture. This will also permit the AFU to engage some of the best legal brains to assist and develop the country’s prosecutors on the issue of forfeiture.
  • To broaden the focus and use of forfeiture. With this in mind the AFU has opened regional offices in Cape Town and Durban. Further offices are to be opened in other areas of South Africa.
International experience has shown that it takes time for a criminal justice system to successfully adopt and employ new laws. This is especially the case with organised crime where investigators work in teams, and investigations are lengthy and intricate.

Given its mandate and the laws at its disposal the Asset Forfeiture Unit is well poised to make an effective difference in the state’s fight against organised crime in South Africa.

Martin Schönteich
Institute for Security Studies