Opening a conference on money-laundering in South Africa, the former Minister of Justice, Dullah Omar, attempted to summarise the nature and magnitude of the problem presented by money-laundering. He observed:20

"Cash lends an anonymity to the proceeds of many forms of criminal activity and it is known that most money-laundering is done by organised criminal groups. In fact, it is a vital necessity to organised crime as it prevents the detection, and consequently, the prosecution of those responsible for the management and financing of criminal syndicates. It also insulates those at the top of a criminal organisation from the sordid reality of their crimes. Money-laundering breaks the paper trail, thus creating obstacles to any investigators as the money trail often represents the only link between the leaders of the criminal organisation and the crime itself. This makes it very difficult to investigate, let alone prosecute, the criminal leaders.

Criminals can thus, by laundering their ill-gotten gains, enjoy the fruits of their illegal activities. A further concern is that the laundering can facilitate the penetration of legitimate business by organised crime with the subsequent corruption of the business. This problem is compounded by the fact that this penetration leads to unfair competition within the particular industry as criminals are not likely to follow ethical business practices usually applied by legitimate business, thus rendering an advantage to the criminals and encouraging others to follow suit.

In addition, the criminal’s access to large sums of money, which he/she wishes to launder, allows him/her to invest without the usual concern for credit and fiscal constraints which operate in any economy. The money launderer’s ability to finance a business operation with illegally earned cash and thereby avoid the cost of finance, as well as his propensity to avoid taxation, also enables him/her to undercut more law-abiding competitors."

Money-laundering is now universally understood to be the processing of the proceeds of criminal acts in order to disguise their illegal origin.21 Legislation which seeks to combat money-laundering effectively should strive to achieve two goals:22

to protect the legitimate economy (formal and informal) and the financial system from being penetrated by illegally obtained funds; and



to increase the risk of apprehension of those presenting such funds, and facilitate the detection, seizure and ultimate confiscation of their illegally acquired funds and assets.

South Africa

With the enactment of the Prevention of Organised Crime Act, South Africa took a major step forward in combating money-laundering. Although the Act was not the first attempt at criminalising this activity as such, it has been credited with having created a comprehensive set of regulatory measures and mechanisms by which to confront the problem.23 Section 4 codifies the offence thus:

"4. Any person who knows or ought reasonably to have known that property is or forms part of the proceeds of unlawful activities and-

(a) enters into any agreement or engages in any arrangement or transaction with anyone in connection with that property, whether such agreement, arrangement or transaction is legally enforceable or not; or

(b) performs any other act in connection with such property, whether it is performed independently or in concert with any other person,

which has or is likely to have the effect-

(i) of concealing or disguising the nature, source, location, disposition or movement of the said property or the ownership thereof or any interest which anyone may have in respect thereof;

(ii) of enabling or assisting any person who has committed or commits an offence, whether in the Republic or elsewhere-

(aa) to avoid prosecution; or

(bb) to remove or diminish any property acquired directly, or indirectly, as a result of the commission of an offence,

shall be guilty of an offence."

Section 5 follows similar lines and provides that:

"5. Any person who knows or ought reasonably to have known that another person has obtained the proceeds of unlawful activities, and who enters into any agreement with anyone or engages in any arrangement or transaction whereby-

a. the retention or the control by or on behalf of the said other person of the proceeds of unlawful activities is facilitated; or

b. the said proceeds of unlawful activities are used to make funds available to the said other person or to acquire property on his or her behalf or to benefit him or her in any other way,

shall be guilty of an offence."

The Act then sets out reporting obligations for those who might come into contact with the proceeds of crime.

Zimbabwe

The offence of money-laundering was created by section 63 of the Serious Offences (Confiscation of Profits) Act of 1990. The adequacy of the provisions and measures stipulated in the Act fails to be evaluated against the goals postulated above.

All jurisdictions that act against money-laundering have to conceptualise the practice in a way which is broad enough to capture the iniquities to be proscribed. The Serious Offences (Confiscation of Profits) Act lays down two ways in which the offence may be committed.

Money-laundering is committed by engaging, directly or indirectly, in a transaction involving the transfer to (rather inelegantly described as ‘removal into’) or from Zimbabwe, of the proceeds of crime of whatever form or nature. Alternatively, the offence can be committed by receiving, taking possession of, concealing, disposing of, bringing into or removing from Zimbabwe, the proceeds of crime. In both instances, intention on the part of the suspect must be established, but this does not have to be in the form of actual knowledge that the assets laundered were the proceeds of crime. A person who commits either of the proscribed acts is also guilty if he or she acted negligently in not establishing the origins of the proceeds.24

The first mode of activity does not fit into the conventional definition of money-laundering at all. It seems to target conduct that may or may not constitute the transformation of illegally obtained assets. Section 63(1)(a) of the Act is worded in such a broad manner as to include non-monetary assets, such as a motor vehicle or a firearm. If a motor vehicle is stolen in Zimbabwe and driven across the border into Botswana, the section would describe this conduct as money-laundering.25

Section 63(1)(b) is drafted in similarly wide terms, so wide as to render a person who receives a motor vehicle stolen from a foreign country knowing the manner of its acquisition, guilty of money-laundering. As the court pointed out in S v Mambo (1995),26 a pickpocket could be charged under the section for holding onto the proceeds of his theft.27

While blurring the distinction between predicate offences and money-laundering, section 63 does not appear to capture the essence of the concept of money-laundering. Section 63 seems to apportion guilt for money-laundering merely on the basis that there is monetary value attached to an asset that is unlawfully acquired. Any transaction that involves its possession, concealment, disposal, or removal from the country should therefore amount to money-laundering. In so doing, the provision obscures or rather ignores the distinction between the predicate offence and the disposal of its yield. This is an unsatisfactory and illogical distortion of the universal definition of money-laundering. The offence is complex enough to detect and investigate without being encumbered by a multiplicity of other acts of misconduct that are already within the purview of the criminal law.

The Serious Offences (Confiscation of Profits) Act also created the offence of acquiring, holding or dealing in tainted property. Proof of the offence depends on proof of a serious predicate offence. Tainted property is defined as:

any property used in, or in connection with the commission of a serious offence;



any proceeds of a serious offence; or



any property in Zimbabwe which is the proceeds of a foreign specified offence for which an order in terms of the Criminal Matters (Mutual Assistance) Act may be registered.

The last category of offences comprises serious narcotics offences.

Swaziland

At the time of writing, Swaziland did not have legislation to address the problem of money-laundering. The government was expected to introduce a bill to criminalise money-laundering during the second quarter of 2001. The bill is expected to require ‘accounting institutions’ to be vigilant against suspicious transactions, and to report them to the governor of the Central Bank of Swaziland. A conviction for money-laundering will result in mandatory forfeiture of the proceeds.28

Drug-trafficking

Each of the countries under review has extensive legislation to criminalise the possession, use, trade and trafficking in drugs of abuse. They have all committed themselves to the SADC Protocol on Combating Illegal Drug Trafficking. At the time of writing, a Drugs of Abuse Bill was expected to be presented to the parliament of Swaziland during in 2001.

This chapter makes a few points about the legislation of South Africa and Zimbabwe.

South Africa

The Drugs and Drug Trafficking Act29 is at the centre of anti-narcotics law in South Africa. It pioneered the proscription of money-laundering as a strategy for dealing with drug-trafficking. It also incorporated basic fact presumptions which sought to relieve the prosecution of the burden of proving that a suspect was dealing in a specified drug once it had proven possession of a certain quantity of the drug. Some of these presumptions have since been found to be in conflict with the presumption of innocence, and therefore unconstitutional.30

There is an overlap between the provisions relating to money-laundering in the Act and those in the Prevention of Organised Crime Act. Section 10 of the Drugs and Drug Trafficking Act establishes a foundation for a system of reporting suspicious transactions, to the extent that it requires bankers, stockbrokers and dealers in financial instruments to be vigilant, and to report contact with property which they have reason to suspect to be the proceeds of crime. The same section also specifically overrides the duty of confidentiality between these institutions and their clients.

Zimbabwe

Two principal statutes are intended to control drug abuse in Zimbabwe, the Dangerous Drugs Act31 and the Medicines and Allied Substances Control Act.32 These two Acts, together with the subsidiary legislation created on their authority, perpetuate an artificial and somewhat anachronistic distinction between dangerous drugs and prohibited drugs.33 Narcotics that are alkaloids of opium or the coca leaf are proscribed by the Dangerous Drugs Act, while the Medicines and Allied Substances Control Act deals with the rest. For the purposes of law enforcement, there is no practical difference between the two classes.

Inspectors are appointed in terms of each Act and given extensive powers of search, seizure and confiscation. These powers are also extended to officials in the Department of Customs and Excise and the police. Both statutes need revision and updating to take account of the realities and international developments.34

It has been specifically suggested that the statutes should be merged into a single Act targeting all narcotic drugs specified by the Vienna Convention Against Illicit Trafficking in Narcotic Drugs and Psychotropic Substances of 1988 (the Vienna Convention). It has also been suggested that presumptions in favour of law enforcement authorities should be introduced to shift the burden of excluding certain inferences to suspects. It has been argued that this would be in line with article 3:3 of the Vienna Convention. Finally, it has been said that consideration should be given to measures to contain the demand for narcotics, by creating sentencing alternatives to promote the rehabilitation of offenders.35

Preventing the obstruction of justice

It is often not an easy matter to detect organised crime. It can also be a formidable challenge to prove such crime. Detection depends on information, and proof is highly contingent upon the availability of reliable, credible witnesses. Witnesses play an important role in both tasks. The pivotal role of witnesses as a source of basic information in investigation, and later in criminal trials places them at risk of victimisation by those against whom their testimony might count. This is the case irrespective of whether or not they are victim or non-victim witnesses. Sometimes their relationship with the perpetrator(s) increases their vulnerability. Apart from interference with witnesses, justice could also be obstructed by the intimidation or elimination of law enforcement or judicial officials. These dangers are particularly manifest in organised crime investigations and prosecution.36

The Convention requires state parties to criminalise both forms of obstruction of justice. The common law prevailing in all countries under review recognises the offence of obstructing (or attempting to obstruct) the course of justice. A growing number of criminal justice systems, however, have realised the inadequacy of simple criminalisation. Article 24 of the Convention enjoins each state party to take appropriate measures, within its means, to provide effective protection from potential retaliation or intimidation of witnesses and, where required, of their relatives and others who are close to them.

As part of these protective measures, states should consider alternative ways of giving testimony, for instance, "through the use of communications technology such as video links or other adequate means." Contemporary trends are in favour of comprehensive, effective protection. A recurrent theme in discussions about the control of serious economic crime and corruption is the need to protect witnesses from victimisation on account of ‘blowing the whistle’ on misconduct.

South Africa

An initiative has been taken to protect those who expose or provide information on criminal and other ‘irregular’ conduct. The Protected Disclosures Act came into force in February 2001.37 The Act is confined, however, to conduct that comes to light in the context of a work environment. It enacts procedures to facilitate the reporting of perceived or suspected unlawful activities of employers or fellow employees. The concerned activities may be criminal, but they could also be non-criminal statutory infractions or possible delictual violations. Employees who make the envisaged disclosures are ‘protected’ from ‘occupational detriment’, which would entail victimisation of any description.38

Outside the sphere of employer-employee relationships, individuals who have assisted in the investigation or prosecution of an offence may seek state protection for themselves and/or their relatives, if they perceive a risk to their personal security. The Witness Protection Act (1998) has introduced an administrative framework for the protection of vulnerable witnesses.39 The Act established an Office for the Protection of Witnesses, headed by a director. Witnesses at risk may be given protection at the place where they reside or be relocated to a place of safety for as long as necessary.40 The Act also envisages, without making detailed provision, the alteration of the identity of a vulnerable witness.41 To minimise the distress that is experienced by witnesses at court, the Minister of Justice is empowered to provide for the assistance of witnesses, counselling and the establishment of reception centres at courts. This ministerial power had not yet been used at the time of writing.

Witnesses can also be protected by the use of bail law. As a general principle, bail can be denied as a way of pre-empting interference with the course of justice. It must be conceded, however, that this only works where the direct source of interference is the accused person himself. It cannot prevent the use of agents and accomplices to intimidate or eliminate witnesses.

Zimbabwe

Zimbabwe does not have a structured system for the protection of witnesses or prospective witnesses. Section 14(2) of the Prevention of Corruption Act has the potential to lay down a foundation for such a system. It reads:

"Any person who, without lawful excuse-

(a) prevents any other person from giving any information, whether in terms of this Act or otherwise, concerning any corrupt practice; or

(b) threatens or does any other thing calculated or likely to deter any other person from giving any information, whether in terms of this Act or otherwise, concerning any corrupt practice; or

(c) does anything calculated or likely to prejudice any other person because that other person has given any information, whether in terms of this Act or otherwise, concerning any corrupt practice;

shall be guilty of an offence and liable to a fine not exceeding one thousand dollars or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment"’ (author’s emphasis)

While applauding the provision, a word or two of caution must be added. It is immersed in an environment bristling with closed enclaves. Secrecy laws, some but not all of which were inherited from the era of colonial rule, serve to insulate iniquitous conduct in both the public and private spheres from public observation. These laws have spawned a great deal of corruption, and rendered its detection difficult. There are many statutory provisions which seek to justify the concealment of information on the standard grounds of public security, national economic interests, or the interests of justice. Any of this legislation can be used to justify the victimisation of a whistle blower. Section 10(4) of the Defence Procurement Act,42 for example, allows the Minister of Defence to withhold information on the financial details of defence procurement. A subordinate public servant in the ministry or an officer in the defence force who reveals corruption in the procurement of firearms by the national army, for instance, places himself at risk, notwithstanding section 14(2) of the Prevention of Corruption Act. The First Schedule to the Public Service Regulations43 lists "the unauthorised or improper disclosure or use of classified or confidential information" (author’s emphasis) as an act of misconduct, which could justify a discharge from the public service. Authorised and ‘proper’ channels of disclosure are well known to be little more than avenues for the selective release of sanitised data by government mouthpieces. They are unlikely to be the avenues by which the information envisaged by the corruption legislation is made available.

To lend efficacy to the philosophy underlying section 14 of the Prevention of Corruption Act, it is necessary to review all the legislation that impacts on the protection of witnesses. Even a basic issue such as the concealment of the identity of sources of information, along the lines of Botswana’s Corruption and Economic Crime Act of 1994,44 should be addressed. In its current state, section 14 is so isolated and ineffective as to promise rather more than it can yield. Moreover, even though the stakes are likely to be high in corruption cases, the penalties prescribed for victimising those who reveal corruption are relatively insignificant.

Swaziland

There is no general witness protection scheme in place in Swaziland. The protection of prospective or actual witnesses is provided on an ad hoc basis in response to specific requests or in compliance with a court order. In corruption cases, the identities of informants are protected from disclosure, unless it becomes evident that false information was deliberately provided.45

There is no provision for witnesses testifying at the venue of the trial to be protected or for the separation of witnesses and accused persons while evidence is simultaneously being taken, although direct testimony could be substituted by the use of interrogatories to prove formal facts.

Special investigative capacity in respect of organised crime and/or corruption

South Africa

The National Prosecuting Authority Act created a unified prosecution service and empowered it to play a more direct role in the investigation of certain serious economic crimes, such as fraud, theft and corruption.46 For the purpose of exercising these new powers, the Prosecuting Authority is structured into directorates, responsible for organised crime and public safety, serious economic offences, and the investigation of corruption, respectively. Sections 28 and 29 specifically relate to the investigative powers of the directorates, including powers of search, examination and seizure. The exercise of these powers normally depends on reasonable suspicion of the commission of an offence.

When read together, these sections would appear to permit the prosecuting authority to invoke search and seizure powers even in the absence of such a suspicion, but where it has insufficient grounds for harbouring such a suspicion. An investigating director may search for and seize property in order to carry out a ‘preparatory investigation’ to determine whether a suspicion is well founded.47 A warrant has to be obtained from a judicial officer. It was the latter requirement which persuaded the Constitutional Court to decide in Investigating Directorate: Serious Economic Offences and others v Hyundai Motor Distributors (Pty) Ltd and others48 that the provisions of section 28 and 29 were not in irreconcilable conflict with the right of privacy in the Constitution. The National Director of Public Prosecutions can delegate the investigative powers in these sections to any of his subordinate directors.49

In the investigation of organised crime, the prosecuting authority has access to information held by the South African Revenue Service. This capacity is particularly useful in serious customs fraud cases.

The National Prosecuting Authority Act was amended in October 2000 to incorporate the Directorate of Special Operations. This directorate, known by its nickname ‘the Scorpions’, is dedicated to combat organised crime.50 It exists and operates outside police structures, although its functions are essentially the same as those of the police. The Directorate is intended to improve the manner in which policing has traditionally been conducted, however, in that it should combine the functions of intelligence-gathering, the investigation of crime and prosecution.

The related activities of gathering intelligence and investigating crime cannot always be done openly. Occasionally, they have to be conducted secretively. In respect of organised crime and corruption, this might involve surveillance, interception and monitoring of communications. In a legal system which places a premium on dignity and privacy, a balance has to be struck between the goals of legitimate policing and the protection of the rights flowing from these concepts.

The Interception and Monitoring Prohibition Act51 is intended to allow the interception and monitoring of communications transmitted by post and telephone. This has to be done in terms of a judicial order, granted on the understanding, first, that a serious offence is imminent or has been committed and, second, that it cannot be properly investigated in any other way. The offence must be a serious one, or must threaten the national economy. The order lasts for up to three months, but it may be extended, and it authorises the entry of premises to install a monitoring device or intercept a communication. The Act was extended in 1998 to cover a wider range of communications, including electronic mail. It might soon be extended to include the tapping of cellular telephones.52

A related power available in the investigation of serious crime allows undercover operations and the employment of traps. No judicial involvement is necessary, and as long as police conduct during the operation does not go beyond providing an opportunity to commit a crime, the evidence thus obtained is admissible.53

Studies have demonstrated that schemes of money-laundering are the easiest to detect at the first stage, generally referred to as the placement stage. It is at this point that the proceeds of crime are deposited in the financial system. This has shifted the limelight to the various entry points into the financial system. ‘Gatekeepers’ of these points are increasingly being drawn into the criminal law enforcement system. The duties imposed by this new status have inevitably conflicted with their confidential relationship with their clients.

A comprehensive system to combat money-laundering should include measures by which to capture information relating to financial transactions that may uncover laundering schemes. This calls for a reliable administrative system which facilitates customer identification, recordkeeping, and secretive information dissemination. As Smit puts it:54

"The most important component of an administrative control structure is a duty to report certain information. Businesses are not required to identify money-laundering schemes, but the suspicious transactions that may uncover the scheme. This measure can only work if the person or institution making the report is protected from any liability for breaching confidential relationships."

In practice, this implies compelling financial institutions to report transactions involving large amounts of money or those raising suspicion. A bill to give statutory form to this thinking is under discussion in South Africa. The Financial Intelligence Centre Bill goes further to propose a central authority to which information from financial institutions will be submitted for analysis and possible reference to the police or prosecution services. The law will extend beyond the traditional financial services institutions, such as banks, to include other institutions considered vulnerable to money-laundering schemes. Attorneys, executors, trust companies, estate agents, unit trust management companies, insurers, gambling institutions, dealers in foreign exchange, money lenders, accountants and investment intermediaries will be drawn into the net.

Zimbabwe

Powers in terms of the Prevention of Corruption Act

The Prevention of Corruption Act gives power to the Minister of Justice, Legal and Parliamentary Affairs on the basis of a reasonable suspicion that a person or corporate body is involved in corruption to ‘specify’ the suspect. Apart from having a reasonable basis for the suspicion, the minister should also be "satisfied that it is in the national interest to declare specification."55

Specification is intended to facilitate an investigation of the affairs and business of the specified person, specifically to determine whether or not he or she or it:56

has committed theft, fraud or some other unlawful act, resulting in the misappropriation or loss of property belonging to the state, a statutory body, a local authority or another person;



has acquired property unlawfully derived from a crime against the state, a statutory body, a local authority or another person;



has corruptly accepted or obtained a bribe;



has corruptly obtained any advantage or profit; or



is associated with any other person who is guilty of any of the above acts, or has benefited from them, causing such a person to be liable to the state, a statutory body, a local authority or another person.

It is clear that the power to specify a suspect is not restricted to violations of the Prevention of Corruption Act. The implications of specification are far-reaching. Having declared a person to be specified, the minister must appoint a special investigator without delay to probe the justification for the suspicion. The investigator is vested with extensive inquisitorial powers, set out in sections 8 to 10 of the Act. These include the power to search premises, summon and examine witnesses under oath, and to call for and examine records held by a bank relating to the account(s) of a specified person, his or her spouse and/or associates. During the period of specification, the capacity of the specified person to carry out his or her ordinary course of business is very limited.57

The Act is not specific about how, in a case in which an investigation was already under way before the specification, the investigator should relate to an investigating entity already seized with the case, such as the police. Two possibilities emerge from a reading of the relevant provisions. The investigator could delegate or assign his or her functions in terms of section 8(3), in which case the delegate would continue investigating a matter of which he or she was already seized, but with the benefit of greater intrusive power. On the other hand, the investigator could choose to treat the investigating officer as a mere witness to be summoned and directed to turn over to him or her the product of the prior inquiries. These possibilities notwithstanding, the omission has been a source of confusion, conflict and suspicion in practice between the police and the Ministry of Justice. In some cases, the impression has been created that specified persons are placed beyond the police, and handed over to inept investigators who waste valuable time battling to grasp fairly basic information. The absence of any prescribed qualifications as a prerequisite for appointment, coupled with the functional link between the investigator and the minister only adds to the apprehension that an investigation may be scuttled by corrupt collusion.58

Powers in terms of the Serious Offences (Confiscation of Profits) Act

The second objective of money-laundering legislation has been identified above as increasing the risk of apprehension of those who present funds for laundering, and facilitate the detection, seizure and ultimate confiscation of their illegally acquired funds and assets. It has often proven difficult to achieve this. This is not because of the absence of a legislative framework.

There are numerous avenues through which unlawfully acquired proceeds of crime may be concealed. The common avenues have tended to be in the financial institutions that serve the formal sector of the economy, but not all of them are located there. Suspicion of involvement in money-laundering is often, but not always, triggered by evidence of the commission of one or more of the predicate offences. The investigation of money-laundering is usually superimposed on a pre-existing inquiry. Where this is the case, the police will already have invoked the provisions of the Criminal Procedure and Evidence Act.59

The Serious Offences (Confiscation of Profits) Act enables the police to invoke greater investigating powers. The police, acting alone or as part of an investigating unit that includes the Attorney-General, can search for and seize ‘tainted property’, or prevent its dissipation in advance of criminal proceedings through an interdict. The application for an interdict is at the instance of the Attorney-General, and the purpose is to keep the property available for forfeiture at the conclusion of the trial. The interdict is applicable to both movable and immovable property. If it is necessary to trace tainted property in the hands of a third party, or property which has passed through the hands of a third party, the police can apply for a warrant to search for any ‘property-tracking’ document. If the identity of the document is known beforehand, an order for its production can be obtained. In addition, the Act also permits what could amount to a virtual ‘fishing expedition’ by the police for information about financial transactions conducted in respect of the suspect’s account with a financial institution during a given period.60 In terms of section 57, a police officer may apply, ex parte, to a judge for a ‘monitoring order’ in respect of the account held by a suspect with a financial institution. Such an order enables the police and the financial institution to circumvent the principle of confidentiality that would ordinarily apply to the contractual relationship between the institution and the suspect.

Part IX sets out the obligations of financial institutions regarding the retention of records. Section 60 provides for the prescription, by regulations, of the kind of records to be maintained. It is a matter of regret that no such regulations have been promulgated to date. Section 62 allows a financial institution to hand over information relating to a client’s account to the police in the absence of a monitoring order, without exposing itself to legal action on account of the disclosure. It may do this if it believes, on reasonable grounds, that the information may be relevant to the investigation or prosecution of any person. The latter does not have to be the account holder.

Legislation to authorise surveillance of telephone communications was passed in 2000, in the form of section 98(2)(b) of the Postal and Telecommunications Act.61 Its application appears to be confined to the political sphere. It is activated by the President "in the interests of national security or the maintenance of law and order." If he considers it necessary on these grounds, the President may direct that:

"(b) any communication or class of communication transmitted by means of a cellular telecommunication or telecommunication service shall be intercepted or monitored in a manner specified in the direction."

No judicial intervention is involved, and this power is open to gross abuse.

Swaziland

Powers of the Anti-Corruption Commission

The Anti-Corruption Commission in Swaziland can invoke certain powers of access and search in respect of the matters falling under its jurisdiction. The Commissioner may require any public official or other person to answer questions concerning the duties of any other public official or person and order the production for inspection of any orders, directives, or office instructions relating to the duties of such other public official or person. He or she can also require any person in charge of any ministry, department or other establishment of the government or the head, chairperson, manager or chief executive officer of any public or private body to produce or furnish within a specified time, any document or a certified true copy necessary for the investigation of suspected acts of corruption.

The Commissioner, Deputy Commissioner, and officers of the Commission generally enjoy access to all relevant data relating to the functions of any ministry, public or private body. This includes all books, records, returns and reports. If they suspect that any property acquired in contravention of the Order has been placed, deposited or concealed on premises or on any vessel, boat or vehicle, they are able to search these repositories.62 These powers are exercised without any need for judicial authorisation.

A successful application to court (including a magistrate’s court) will confer the following additional powers:

to investigate the acquisition of property in or outside Swaziland by or on behalf of such person during a given period of time;



to require the subject of the investigation to produce information relating to-



expenditure incurred by him in respect of himself, his spouse, children and parents;



all liabilities incurred by him, his agent or trustee;



any money acquired or sent outside Swaziland during the specified period;



to investigate and inspect any bank account relating to the investigated person;



to require from third parties the production of accounts, books or company books of, or relating to the subject of the investigation; and



to take copies of these documents.

The Anti-Corruption Commission’s powers override bank secrecy or other grounds for non-disclosure.63 In addition, the Commission has the residual capacity to ‘smoke out’ those suspected of surviving on ill-gotten gains. In terms of section 26(2) of the Prevention of Corruption Order, if the Commissioner suspects, on reasonable grounds, that persons who are not in gainful employment are living beyond their means, he can order such persons to account for what they have. If such a person is unable to give any satisfactory explanation (in writing), he or she shall be guilty of an offence. The offence carries a fine of E10 000 or five years imprisonment, or both.

Investigations of motor vehicle theft

Special powers of investigation are vested in the police when the charge relates to dealing in stolen motor vehicles. When investigating the assets of any person reasonably suspected to be engaged in the business of stealing and selling or other fraudulent dealings in motor vehicles, the police can obtain a court order. An order in terms of section 20 of the Theft of Motor Vehicles Act,64 authorises an intrusive and wide-ranging investigation into the source of the suspect or respondent’s assets. The order may:

prohibit dealings in or with such assets without the permission of the court;



authorise the police to search, seize and hold any assets of the respondent until the completion of the investigation or a declaration of forfeiture;



require any person to produce to the police any documents relevant to the identification or location of the respondent’s assets; and



require any bank or other financial institution to provide the police with any information concerning the respondent’s assets.

Confiscation and forfeiture of instrumentalities and proceeds

Confiscation and forfeiture of the means used to commit crime, as well as its fruits are common mechanisms in modern criminal justice systems. The trend is confirmed by the Convention, which seeks to make it a matter of obligation for state parties to adopt procedural rules that permit confiscation and forfeiture. There should be methods of ensuring that the property to be confiscated is identified, preserved (frozen) and, if necessary, transferred.

South Africa

A central goal of the Prevention of Organised Crime Act is to ensure that perpetrators of crime do not benefit from its proceeds. The terms of the Act therefore seek to enable the state to seize any asset that has been used to commit a crime or that has been acquired through crime. The assets envisaged include residential premises from where drugs are sold.65

The Act incorporates a range of measures that can be taken in respect of tainted assets. These include restraint and preservation orders to secure the assets from pretrial dissipation,66 and confiscation and forfeiture orders to confirm ultimate asset acquisition. Measures of this nature are not a novelty in South African criminal justice law. They have featured prominently in the Criminal Procedure Act and customs legislation for many years. What is new about the forfeiture regime in the Prevention of Organised Crime Act is the employment of civil procedure in criminal proceedings.

The legislature opted for this route in the knowledge that civil forfeiture has certain advantages over criminal forfeiture. The main advantage is that, while criminal forfeiture operates against a specific person (in personam), its civil counterpart is aimed at the asset(s) as a distinct object. It may therefore be called an action in rem. In a criminal forfeiture, the order is restricted to assets owned or possessed by the convicted person at the time of conviction, but a civil forfeiture relates back to the time of illegal use.67 This makes the latter enforceable against third parties, regardless of their involvement in or knowledge of the underlying criminal conduct.68 The risk of forfeiture orders being frustrated by the disposition of property through convenient donation and fraudulent transactions is thereby minimised.

A related advantage stems from the fact that a less onerous standard of proof is required in civil proceedings. In practical terms, this means that the state only has to establish that the assets were probably used in the commission of a crime. In the case of a residence that is suspected of being used to market illicit drugs it has to be proven that there is a 51% chance that the residence was so used. In terms of illegal contraband, a similar threshold applies. Furthermore, it is not necessary to prove an offence against a particular person in order to sustain a forfeiture order.69 As Schönteich puts it:70

"The validity of such an order is not affected by the outcome of criminal proceedings … 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."

The Act provides for confiscation orders, sounding in money, but only in consequence of a conviction. The court makes such an order after an enquiry into the benefit derived from the offence or criminal activity related to the offence.71 Even though this appears to be a form of criminal forfeiture, it should be noted that civil rather than criminal rules apply to confiscation proceedings. The Asset Forfeiture Unit in the office of the National Director of Public Prosecutions is tasked with the effective implementation of forfeiture and confiscation legislation.

There is inevitable tension between the forfeiture provisions in the Act and the property rights of innocent third parties, especially where there is no antecedent conviction. The Act attempts to ameliorate this tension by giving an opportunity, through section 52, to third parties to prove both the lawfulness of their interest and excusable ignorance that the property was an instrumentality or the proceeds of crime.

Zimbabwe

Information gathered by the deployment of the policing powers enshrined in the Serious Offences (Confiscation of Profits) Act can be used both to prove the charge against the suspect and to found an application for a disposal order. The latter may be in the form of forfeiture of property or a pecuniary penalty equal to the benefit derived from the offence. The Act provides for the confiscation of the proceeds of crime, defined widely as any property that is derived or realised, directly or indirectly, by any person from:

"(a) the commission of any serious offence; or

(b) any act or omission which occurred outside Zimbabwe in relation to a narcotic substance and which, had it occurred in Zimbabwe would have constituted a serious narcotic offence …"

A serious offence is any offence that is punishable by imprisonment for at least 12 months, or any offence which yields property worth at least Zim $20 000. The forfeiture provisions in the Act are supplementary to general provisions in the Criminal Procedure and Evidence Act.72

Swaziland

Swazi law is familiar with both criminal and civil forfeiture. Three provisions pertain to criminal forfeiture. Section 324(3) of the Criminal Procedure and Evidence Act applies to offences generally, to permit a court to declare forfeited any weapon, instrument or other article utilised in committing an offence. Forfeiture depends on a conviction being returned, but it is not mandatory.

In addition, there are at least two other notable specific provisions. The first relates to offences listed in Schedule I Part I of the Criminal Procedure and Evidence Act. It refers to offences under any law relating to the illicit possession, conveyance or supply of habit-forming drugs or intoxicating liquor; offences relating to the illicit possession of or dealing in precious metals or precious stones; and offences relating to the illicit acquisition, dealing in, importation or possession of arms and ammunition. After the seizure of these instrumentalities on the apprehension of a suspect, in terms of section 51 of the Criminal Law and Procedure Act, they may be forfeited to the government by court order in terms of section 324(4) if shown to have been used in the commission of the offence.

The second provision is located in the recently enacted Serious Offences (Confiscation of Proceeds) Act,73 which addresses the issue of forfeiture of instruments by which crime, in general, and economic crime, in particular, is committed. The Act defines the term ‘proceeds of serious crime’ widely, as:

"any property used in or in connection with the commission of a serious offence or any property that is derived or realised directly or indirectly by any person from the commission of any offence or from any act or omission which had it occurred in Swaziland would have constituted a serious offence." (author’s emphasis)

An application may be made by the Director of Public Prosecutions for a forfeiture order following a conviction. Notice of the application should be given, and the affected parties given a chance to be heard and to testify. The court has the discretion to grant or refuse the application. Judicial discretion is to be guided by the following factors:74

the ordinary uses of the property for which forfeiture is sought;

the use that was intended for the property in the instant case;

the likely effect that forfeiture will have on any person; and

the gravity of the underlying offence.

The emphasis on proportionality between the public interest served by forfeiture and the private property interests of the person(s) affected by the forfeiture is evident.

The legislative framework in both the Criminal Procedure and Evidence Act and the Serious Offences (Confiscation of Proceeds) Act is for criminal rather than civil forfeiture. Forfeiture is contingent upon the conviction of the person against whom it is principally made.

As with the Prevention of Organised Crime Act in South Africa, a duty is imposed on third parties with an interest in the property which is at risk of forfeiture to show an innocent connection to the property.75 The declaration of forfeiture does not affect the property rights of a third party who can show that "he did not know that it was being used or would be used for the conveyance of, or as a receptacle for" whatever illegal substance precipitated the charge. The third party has a right of appeal if the trial court should rule against him or her.

A similar provision for the vindication of third party rights or interests exists in the Serious Offences (Confiscation of Proceeds) Act.76

This Act also provides for a pecuniary penalty order equal to the benefits derived by the convicted person. The order must take account of any forfeiture that may have been ordered in the same proceedings. Account must also be taken of any order for restitution or compensation that is payable on account of the conviction. In terms of section 9 of the Act, the pecuniary penalty is regarded as a civil judgement and enforced in the same way as a civil debt.

Civil forfeiture is available only in proceedings arising from motor vehicle theft. The scope of state action in cases involving the theft or suspected theft of motor vehicles is set out in section 20 of the Theft of Motor Vehicles Act. This section permits intrusive investigation as shown above and also provides for the forfeiture of assets traced during the investigation.

If identifiable assets of the respondent are found to have been derived from the business of stealing and selling stolen motor vehicles, the court is obliged to order the forfeiture of those assets to the Crown. The Act does not indicate who must make this finding, the police or some other investigating agency and the court. It is assumed that such a decision will be made by a court.

A trial appears to be unnecessary. At most, section 20 entitles the court to decide whether assets are tainted or not on the basis of documentary evidence, in the same way that civil applications are decided. Section 20 seems to provide for a civil application, in which it only has to be shown that the assets in question are probably derived from illicit dealing in motor vehicles.

An application for forfeiture in terms of the Serious Offences (Confiscation of Proceeds) Act may be preceded by a ‘restraining order’ in respect of:

specified property of the suspect;



all of his property; or



specified property of some other person, alleged to have been used in, or in connection with, the commission of the offence or derived or realised, directly or indirectly, as a result of the commission of the offence.

The order lies at the instance of the Director of Public Prosecutions, on notice to the suspect. Notice does not have to be given in an urgent matter or where it is not in the public interest to give notice.

A suspect in a corruption matter may be precluded from disposing of property in terms of the Prevention of Corruption Order through an investigation order obtained by the Commissioner.

Transnational mutual assistance in criminal matters

The need to streamline mechanisms for transnational co-operation in criminal matters has never been greater. There is much movement of people and capital across borders. This movement involves criminals, victim and non-victim witnesses to crime, and tainted assets. The Convention supports the strengthening of regional and international co-operation in crime prevention, criminal justice and the combating of transnational crime. The objective is to facilitate a rapid and secure exchange of information concerning all aspects of organised crime. Whatever measures are taken to foster international mutual assistance have to be simple and effective. In respect of South Africa, Zimbabwe and Swaziland, it should be noted that these measures are not all legislative.

South Africa

The main statutes regulating this assistance are the International Co-operation in Criminal Matters Act (1996)77 and the Extradition Act.78 The former consists of five chapters and deals with four important aspects of international co-operation. It sets out mechanisms for:

requesting evidence from a person who is in a foreign state;

taking evidence from a local resident for use in a foreign state;

mutual execution of sentences and compensation orders; and

mutual requests for enforcement of restraint and confiscation orders and for the transfer of the proceeds of crime.

Provision is also made for the local enforcement of subpoenas issued in certain other states.79

A significant feature of the mutual assistance provisions relating to the gathering of evidence is the fact that they may be invoked before the commencement of criminal proceedings in the strict sense. Evidence could be requested, or taken during the course of an investigation.

Extradition80 may take place on the basis or in the absence of a treaty. In respect of the latter situation, certain states have been designated, including the United Kingdom, Namibia and Zimbabwe. Extradition agreements may provide for the mutual enforcement of warrants of arrest. Such agreements exist between South Africa and Botswana, Lesotho and Malawi.81 In the same way as a subpoena, this kind of warrant is first endorsed by a court before it can be executed locally. The Extradition Act allows the extradition of South African nationals.

Zimbabwe

The rarely invoked Criminal Matters (Mutual Assistance) Act is the main legislation82 on international co-operation in Zimbabwe. In respect of criminal activities originating outside Zimbabwe, the Criminal Matters (Mutual Assistance) Act entitles the Attorney-General to request the appropriate authority of a foreign country to assist in the investigation of a serious offence which has an impact on Zimbabwe. Assistance may be in the form of obtaining a search and seizure warrant, or the recording of evidence, or the production of documents. The Attorney-General may also request the enforcement of orders issued by the local judiciary or the enforcement of a forfeiture order pursuant to a conviction.

The Extradition Act83 of Zimbabwe is similar to that of South Africa. It also permits the extradition of nationals, where it is shown to a magistrate conducting an extradition hearing that there is a prima facie case against the national. Two forms of extradition are envisaged, in terms of a treaty and on account of designation.

Swaziland

The Criminal Matters (Mutual Assistance) Act84 regulates international co-operation procedures. In terms of section 4, where a foreign jurisdiction is involved, the Attorney-General may request the assistance of the appropriate authority of the foreign state. The legal assistance that may be sought depends on the nature of the case and the stage reached in its pursuit. However, the Act entitles the Attorney-General to request:

that assets believed to be the proceeds of crime that are located in the foreign state should be ‘frozen’;



that a search warrant for articles believed to be located in the foreign state and which may be relevant to investigations or proceedings in Swaziland should be executed;



the enforcement of a confiscation order emanating from Swaziland;



that confiscated property or any proceeds realised from its disposal or dealing with it should be transferred to Swaziland; and



the transfer to Swaziland authorities of a prisoner who consents to assist Swaziland in criminal investigations or proceedings.

The Attorney-General has the authority to make reciprocal undertakings on behalf of Swaziland.85

Non-political crimes are extraditable in terms of the Extradition Act,86 of which the provisions are broadly similar to those obtaining in South Africa and Zimbabwe. In addition to the Extradition Act, the Fugitive Offenders (Commonwealth) Act87 provides that:

"any person found in Swaziland who is accused of a relevant offence in any other country [designated country] … or who is alleged to be unlawfully at large after conviction of such an offence in such country, may be arrested and returned to such country under this Act."

Law enforcement co-operation and the exchange of information

For a long time, it has been apparent to law enforcement authorities in SADC countries that the effective containment of organised crime requires the co-operation of various agencies. In this regard, the initiatives of the Southern African Police Chiefs Co-operation Organisation (SARPCCO) anticipated article 19 of the Convention Against Transnational Organised Crime. SARPCCO was set up to "promote, strengthen and perpetuate co-operation and foster joint strategies for the management of all forms of cross-border and related crimes with regional implications."88 Co-operation under its auspices has yielded notable success in the spheres of motor vehicle theft and firearms-smuggling.

Conclusions

Article 3 of the Convention defines a transnational offence as an offence that cuts across national borders by reason of the places where it is committed, where it is planned, the identities of the perpetrators, or a geographical difference between where it is committed and where the harm is felt. The response to this kind of offence needs to be broadly conceived in terms of its nature, its scope of application and the manner of enforcement. The Convention provides an impetus for the reform of substantive as well as procedural criminal law. It also seeks to bring about certain administrative changes.

If there is to be conformity with the requirements of the Convention, changes will have to be made to the coverage of the existing criminal law in South Africa, Zimbabwe and Swaziland. While the law relating to participation in organised criminal groups appears to be adequate in South Africa, the same cannot be said in respect of its treatment of corruption or the theft of motor vehicles. The law in Zimbabwe and Swaziland on participation in organised criminal groups is clearly inadequate, notwithstanding the content of the common law and the statutes regulating criminal procedure.

While there is universal recognition of the threat emanating from corruption, the legislative response in these three countries is neither uniform nor comprehensive. In fairness, it must be said that what the Convention calls for is also not comprehensive. Anti-corruption legislation should take account of the many kinds of shady activities other than bribery of public officials. This kind of bribery is fading into the realm of petty corruption, having been overtaken by more sophisticated innovations. In so far as the scope of coverage is concerned, the exemption of the highest public office holder in the Zimbabwean legislation is disappointing. The deficiencies of coverage are compounded by the weaknesses of enforcement structures in Swaziland and Zimbabwe. The common feature in both cases is that these structures are susceptible to improper influence.

There appears to be a common recognition of the seriousness of money-laundering, and that it should be criminalised. Unfortunately, there has been no co-ordination of efforts even in defining the offence with the result that, in the one case, a definition is on the statute book that is so wide that it distorts the meaning of the concept. A common definition is needed, and the Convention is expected to facilitate this process. It must be a definition arrived at in harmony with other SADC countries. There is an abundance of literature and models on the administrative structures that are required in order to support anti-laundering initiatives. South Africa is at an advanced stage in the formulation of such a structure. The product of the efforts in this country should be shared with other countries in SADC to prevent duplication and broaden the debate. No mechanism exists in the other two countries surveyed. Whatever structure is agreed upon requires legislative fortification, in the form of primary and subordinate legislation.

The matter of witness protection has also revealed disparities among the three countries. The role that protection schemes can play in ensuring the availability of evidence should be considered, and appropriate mechanisms formulated. There are many current examples of such mechanisms. The only impediment might be the expense involved in implementation. The Convention offers scope for countries taking demonstrable steps to implement the letter and spirit of the Convention to be assisted, at least with pilot schemes.

The Convention envisages the expansion of policing powers. In each of the countries surveyed, the police is part of the executive arm of the state. Expansion of its power means expanding state power, with the concomitant constriction of the rights of the citizen. This proposition is likely to be controversial, in the light of perceptions about the risk of abuse of additional state powers. Yet, if SADC countries are going to co-operate in combating transnational organised crime, a common approach has to be adopted. It is submitted that this will be possible if safeguards to prevent abuses are built into the legislation relating to, for example, interception and monitoring of communications.

Since SADC countries have already committed themselves to the Convention, they must now expend energy in considering the issues to be raised in its implementation, some of which have been raised in this chapter.

Notes

The most visible and active was PAGAD (People Against Gangsterism and Drugs), operating on the Cape Flats since 1996. At about the same time, another group, the Mapogo-a-Mathamaga, established itself in the Northern Province. At the time of writing, it had grown immensely to a reported membership of 40 000.



Act 121/98.



Section 9 as read with the definition section.



Kinnes, From urban street gangs to criminal empires: The changing face of gangs in the Western Cape, (2000) ISS Monograph 48, Institute for Security Studies, Pretoria, June 2000, pp 26-28.



Provisions with an anti-corruption content are to be found in the Public Service Act (1994), the South Africa Police Service Act (1995), the Executive Members Ethics Act (1998), the National Prosecutions Act (1998), the Public Finance Management Act (1999), the Protected Disclosures Act (2000) and the Promotion of Access to Information Act (2000).



Act 94/92.



Examples are the Railways Act (chapter 13:09), the Electricity Act (chapter 13:05), and the Air Zimbabwe Corporation Act (chapter 13:02).



Act 9/99.



The Act was passed in 1985. It is now cited as chapter 9:16.



The President is specifically excluded, unless he or she can be described as "a person holding or acting in a paid office in the service of the State, a statutory body or a local authority." This extension of the definition to include the President would be nullified by the constitutional immunity from prosecution that is enjoyed by a sitting President.



The facts in Martin v Attorney General and another 1993 (1) ZLR 153 (S) illustrated the limitations of the Act. The accused, a senior officer in the Department of Parks and Wildlife, was involved in negotiating a contract for the transfer of rhinoceros to an American organisation. Sometime after the conclusion of the contract, he received an imported new motor vehicle from the head of the organisation. There was a strong suspicion that the vehicle was given in appreciation of the work he had done in securing the contract. An attempt to prosecute him for violating section 3(1)(f) failed. The court held that obtaining the gift related to the element of mens rea and did not form part of the actus reus. If the actus reus was not proven, namely, a failure to disclose to the principal the full nature of a transaction carried out in the course of his agency, the acquisition of the gift became irrelevant.



T S Masiyiwa Holdings (Pvt) Ltd v Minister of Information 1996 (2) ZLR 754 (S).



Order 19/93.



If the Commissioner has reasonable grounds to suspect that any such person is living beyond his or her means, he is obliged to call on such a person to account for the acquisition of property or funds, and if he or she is unable to give a satisfactory explanation (in writing), such a person shall be guilty of an offence and liable on conviction to E10 000 or five years imprisonment, or both.



A survey of public opinion in Southern Africa found that politicians and civil servants were generally believed to be the most corrupt in Southern Africa. See M Sithole, C Kunaka & R Klein, SADC citizens speak on corruption, unpublished draft report, July 2000, p 42.



The Prevention of Bribery Ordinance (chapter 201) passed in Hong Kong in 1970 has a similarly worded ‘unexplained lifestyle’ provision, which reads:

"(1)?Any person who, being or having been a Crown servant -

maintains a standard of living above that which is commensurate with his present or past official emoluments; or

is in control of pecuniary resources or property disproportionate to his present or past official emoluments,

shall, unless he gives a satisfactory explanation to the court as to how he was able to maintain such a standard of living or how such pecuniary resources or property came under his control, be guilty of an offence."



S Coldham, Legal responses to state corruption in Commonwealth Africa, Journal of African Law 39, 1995, p 115.



The deterioration of the economy has resulted in an increase in the number of would-be emigrants. To circumvent stringent entry requirements in certain countries such as the United States, some have resorted to forged travel and educational documentation. In other cases, such documents are used in order to evade restrictions (such as re-entry prohibitions) imposed in consequence of violations of residence laws. A syndicate offering falsified documentation was uncovered in Harare in January 2001. The case was pending at the time of writing.



Chapter 9:17.



D Omar, Opening address to the KPMG national conference on money laundering 27 June 1996, Money Laundering Control in South Africa, 30 1996, pp 1-2.



See N South, On ‘cooling hot money’: Transatlantic trends in drug-related money laundering and its facilitation, <www.alternatives.com/crime/SOUTH.HTML>, in which the author cites Lyman’s definition: "the transformation of illegally obtained currency to that which appears legitimate. In addition it is the concealment of the illegal sources of the income or its applications." The US Customs conceives of the practice as a:

"process whereby proceeds, reasonably believed to have been derived from criminal activity, are transported, transferred, transformed, converted, or intermingled with legitimate funds, for the purpose of concealing or disguising the true nature, source, disposition, movement or ownership of those proceeds. The goal of the money laundering process is to make the funds derived from, or associated with illicit activity appear legitimate."

See also A Itsikowitz, The prevention and control of money laundering in SA, THRHR 62, 1999, p 88, an article which appears to have been written before the enactment of the Prevention of Organised Crime Act 121/98; and O S Sibanda, POCA: Targeting money laundering offences, The Judicial Officer, 2000, pp 37-44.



Omar, op cit, p 5.



The Drugs and Drug Trafficking Act (140/92) laid the foundation for money-laundering legislation, although its provisions were limited to the proceeds of drug-trafficking. The Proceeds of Crime Act (76/96), had broader application, in that it targeted proceeds of any type of crime.



In terms of section 63(1), a person is guilty if "he knows or ought to have reasonably known that the money or other property was derived or realised, directly or indirectly, from the commission of an offence." See Sibanda, op cit, pp 37-44.



This is so because he has knowingly engaged in a ‘transaction’ (not defined) involving the removal of property from Zimbabwe that is the proceeds of crime.



1995(1) ZLR 50 (S).



At 52-3.



The text of the Money-Laundering Bill was not available at the time of writing, but the Deputy Attorney-General responsible for legislative drafting in Swaziland confirmed the content. See also a report by the Pan African News Agency, 28 December 2000, <allAfrica.com>.



140/92.



In respect of dagga, see S v Bhulwana; S v Gwadiso 1996 (1) SA 388 (CC). For other drugs, see S v Julies 1996 (4) SA 313 (CC)



Chapter 15:01.



Chapter 15:02, especially in Part V, which deals with prohibited drugs.



N Dias, An Outline of current legislation relating to drug abuse in Zimbabwe: Its defects and suggested improvements in the light of the 1988 Vienna Convention, Law Society Magazine 5, 2000, pp 15, 18.



The Dangerous Drugs Act, having been enacted in 1955, predated the Single Convention on Narcotic Drugs (1961), the Convention on Psychotropic Substances (1971) and the 1988 Vienna Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The legal regime adopted in this Act is derived from earlier international conventions (e.g. the Hague Convention of 1912, and the first and second Geneva Conventions (1925 and 1931).



Dias, op cit, pp 18-19.



R J Harris, Whither the witness? The federal government’s special duty of protection in criminal proceedings after Piechowicz v US, Cornell Law Review 76, 1991, pp 1285-1316.



Act 26/2000.



Including dismissal, suspension, demotion, harassment, intimidation, transfer against their will, or the refusal of transfer or promotion. To entitle the employee to protection, disclosure should be made to one or more among a prescribed list, namely, a lawyer, the employer, national or provincial minister, the Public Protector or the Auditor-General.



Act 112/98.



Section 11(4).



Section 18 as read with section 23.



Chapter 11:03.



Statutory Instrument 1 of 2000.



Section 45.



Section 36(1) and (2) of the Prevention of Corruption Order.



Act 32/98.



Section 28(13) and (14) as read with section 29.



See <www.butterworths.co.za/jol/SPECIAL/7338.htm>.



Section 72 of the Prevention of Organised Crime Act.



The Minister of Justice hailed its advent, proclaiming that it would become "the plague of organised criminals and terrorists, and inject its venom into the criminal law to paralyse organised crime and terrorism." Schönteich describes the brief history and structure of the Directorate in his article, Deadly poison for criminals: The Scorpions take on form, (2000) Nedbank ISS Crime Index 4(5), 2000, pp 1-4. See also E Pelser Sharpening the Scorpions’ sting: Clarity on roles and reporting, Nedbank ISS Crime Index 4(5), 2000, pp 5-8.



Act 127/92.



The Interception and Monitoring Prohibition Amendment Bill is due to be tabled in cabinet on 28 February 2001.



See the Criminal Procedure Second Amendment Act (85/96).



P Smit, Keeping it clean: New provisions to stop money laundering, Nedbank ISS Crime Index 4(5), 2000, p 26.



The notion of reasonable grounds entails justiciability, in the sense that the decision of the minister is an administrative one, which can be challenged in the courts of law. It is submitted that a specification can be subjected to judicial review, notwithstanding the apparent declaration of finality by section 12.



Section 6 as read with section 8 of the Prevention of Corruption Act.



Section 10. In the light of the various limitations imposed on the specified person, the statement in section 10(9) can only be regarded as cynical.



As appears to have happened in the wake of the collapse of the United Merchant Bank. The bank was suspected of improper dealings with client deposits and foreign currency receipts. It was also widely suspected of involvement in money-laundering. Its chairperson was on friendly terms with the Minister of Justice at the time. The Minister reportedly owed the bank a significant amount of money. Investigations into fraudulent transactions by the bank and its chairperson were removed from the police at an early stage by specification. This was followed by a long delay in finalising the case. The chairperson subsequently died, and to this date, the investigation is incomplete.



In the Zimbabwean Act, these powers are set out in Part VI.



It is necessary for the police to show that there are reasonable grounds for suspecting that the person whose account is to be probed has committed a serious narcotics offence or a money-laundering offence in relation to narcotics, or a prescribed offence or conspired with another to commit any of these offences. A person suspected of money-laundering would fall within the ambit of section 57 of the Act.



Chapter 12:05.



Section 11 of the Prevention of Corruption Order.



Ibid, section 12(2).



Act 16/91.



There are regular press reports of houses on the Cape Flats and the south coastal towns acquired for this purpose.



Section 26.



This aspect of the civil forfeiture provisions in the Act produced initial complications for its implementation. It was successfully contended that the Act in its initial form did not operate retrospectively, and therefore tainted assets acquired before the promulgation of the Act could not be forfeited on its authority. This resulted in an amendment to include retrospectivity.



See A J van der Walt, Civil forfeiture of instrumentalities and proceeds of crime and the constitutional property clause, South African Journal on Human Rights 16, 2000, pp 1-45.



Section 50(4) reads:

"The validity of an order under subsection (1) (i.e. a forfeiture order) is not affected by the outcome of criminal proceedings, or of an investigation with a view to institute such proceedings, in respect of an offence with which the property concerned is in some way associated."



M Schönteich, The Asset Forfeiture Unit: Performance and priorities, Nedbank ISS Crime Index 4(3), 2000, p 24.



Section 18.



Chapter 9:07.



Act 5/2000 passed in December 2000.



Listed in section 4 (2) of the Act.



Section 324(4) of the Criminal Procedure and Evidence Act.



Unfortunately the Act is worded in a way which could render the requirement of notice to a third party subject to the whims of the state. In terms of section 4(3), the Director of Public Prosecutions is required to give notice to "any other person whom (the DPP) has reason to believe has an interest in the property." It is possible that the DPP may omit to give notice to a party on account of ignorance of the party’s existence, just as it is conceivable that the DPP could be actuated by bad faith. Section 4(4) seeks to retain the ultimate protective authority of the court by giving it the power to direct the DPP to give notice to other persons whose interest come to its attention. It is difficult to imagine how this situation can ever arise

Section 6 of the Act affords a third party an additional opportunity to make representations in respect of the forfeiture. Such representations may be made within six months of the order, on notice to the DPP. This provision appears to be intended for instances in which notice of the original application was not given to the third party, although it is also available to a party who received notice. If he can show that:

• he was not in any way involved in committing the offence for which the order was made;

• he acquired the interest in the property in good faith and for value; and

• he acquired the interest in the property without knowing, and in circumstances in which he could not reasonably have suspected that the property-

• was used in, or in connection with, the commission of a serious offence; or

• was derived or realised directly or indirectly by any person as a result of the commission of a serious offence.

• he could get the forfeiture order reversed or compensation which equals the value of his interest.



Act 75/96.



Act 67/62.



These are listed in Schedule 1 as Lesotho, Swaziland, Botswana, Malawi, Namibia and Zimbabwe.



Defined as a process, initiated by an adequately founded, formal request from one sovereign state to another, based on treaty, reciprocity or comity, by means of which an individual, accused or convicted of the commission of a serious offence within the jurisdiction of the requesting state, is surrendered to competent courts in the territory of this state for trial or punishment.



For the purposes of the Act, these are called associated states.



Chapter 9:06.



Chapter 9:08.



Act 4/2000.



Section 7.



Act 13/68.



Act 9/69.



M Schönteich, How organised is the state’s response to organised crime?, African Security Review 8(2), 1999, p 8. See also chapter 2 of this monograph.