The seizure of the assets of alleged brothel keeper Andrew Phillips was not for any ”legitimate purpose”, but to punish him even before his trial was over, the Constitutional Court heard on Thursday.
Those assets, including vehicles and property believed to be worth millions, were placed under a preservation order in February 2000 and a restraint order in December that year.
In applying for the restraint order, the national director of public prosecution (NDPP) has argued that there was an ”acute fear” the assets would be dissipated, Phillips’s counsel, Matthew Chaskalson, told the court.
”There are no facts to suggest a reasonable basis for that fear,” he said.
In the 10 months between the two orders, there had been no attempt to dispose of any of the assets, he said.
With the case against Phillips yet to be finalised nearly five years later, Chaskalson argued that this prolonged interference with his property rights is not acceptable under the Constitution.
There is good cause for the order to be rescinded, he submitted.
”In a constitutional democracy, if you exercise powers of this nature in a way that has the effect of unjustifiably prolonging interference in property rights, then you must suffer the consequences and your restraint order must go,” he said.
The onus rests on the state to ”show every step of the way what they have done is a reasonable interference with right”.
He submitted that at the very least there be a ”freeing up” of the properties, so that business can be conducted there to raise the funds needed to maintain them and municipal obligations on them.
However, counsel for the NDPP, Malcolm Wallis, said the state is not alone responsible for delays in the trial.
Phillips has brought no less than 15 proceedings before either the high court or the Supreme Court of Appeal ”challenging every aspect of the matter”.
The case at present stands adjourned pending an Supreme Court of Appeal ruling regarding a listening device traced in an investigator’s boot.
Wallis said Phillips’s saying that he had not dissipated his assets and that he would not dissipated those under restraint is not proof. If he had, he would not say so. It just meant the NDPP had not found them.
The courts make a restraint order where there is a reasonable prospect of a conviction and the confiscation order being made, he continued.
”The purpose of this is to make it clear that crime does not pay,” he said, pointing out that a monetary security paid from an offshore account of the very proceeds of crime would undercut the whole motion of security.
Wallis acknowledged that if the value of the assets falls while under curatorship, the state will have to seize more assets to cover any shortfalls.
Phillips has denied charges of running a brothel between 1987 and December 2000, living off the proceeds of prostitution, procuring women to have sex with clients, employing illegal immigrants at The Ranch, The Oriental Palace and the Titty Twister Bar, and committing perjury. — Sapa