Ted Leggett
The state has had to release its hold on the property of alleged Milnerton drug dealer Gavin Carolus in the first test case for the civil forfeiture provisions of the Prevention of Organised Crime Act.
A preservation of property order had been granted to the state to freeze the assets of Carolus, in anticipation of a forfeiture hearing. This order has been invalidated by the Cape High Court as a misapplication of the law. The finding represents a setback for those intending to use the Act to hit organised crime leaders in the pocketbook.
It was anticipated from the outset that the Act would encounter early resistance. According to Peter Gastrow of the Institute of Security Studies, the drafters were well aware that the statute had constitutional ramifications, and hoped that an early test case would be brought before the Constitutional Court.
It is also not surprising that technical hitches have arisen. The Act was pushed through at the end of the parliamentary session, two days before closing. Cross-referencing errors, as well as substantive adjustments to the disposition of the seized property fund, required that immediate amendments be made at the start of this year’s session.
What had not been expected was Judge Andr Blignaut’s objection – that, based on the wording of the statute, the civil forfeiture provisions of the Act were not intended to be applied retroactively. The judge explained that there is a presumption in law that criminal statutes have no retrospective application.
When contacted for comment, Judge Blignaut said that if the statute had explicitly provided for retroactive application, he would have had no problem with the statute on that basis. Since the case was dismissed as a misapplication of the law, there was no reason to rule on the constitutionality of the statute.
Ironically, the relevant portions of the Act were designed to replace the Proceeds of Crime Act, which was in force at the time the alleged crimes were committed. The judge’s decision, if it stands, has effectively allowed a reprieve of criminals liable under the old statute due to a drafting error in the new one.
According to Darwood Adam of the investigative directorate (organised crime and public safety), investigations under the Act will continue and seizures will be made where offences occurred after the Act’s January 21 inception date.
The state will appeal the judge’s decision and will proceed legislatively if they have no success in the courts.
Since the objection was based solely on the wording of the statute, and not on its the substance, there should be no problem with applying the law in this regard once legislative intent is established.