The National Director of Public Prosecutions (“NDPP”) may, in terms of Section 38 of the Prevention of Organised Crime Act, 1998, (“POCA”), make an ex parte application to preserve (“freeze”) the property of any person for 90 days. The NDPP must show that there are reasonable grounds to believe that such property constitutes proceeds of unlawful activities.

While the property is frozen, the NDPP may, ito section 48, apply for an order forfeiting such property to the State. Here, the NDPP must show, on a balance of probabilities, that such property indeed represents proceeds of unlawful activities.

In a recent decision of the SCA, Sagren Perumal v NDP (356/10) [2011] ZASCA 37 (29 March 2012), the Appellants appealed against a forfeiture order (“FO”) granted by the KZN High Court. It was alleged that the First Appellant was one of the biggest drug dealers in the Durban area and had acquired the properties with proceeds of these unlawful activities. None of the Appellants, however, had ever been convicted of this crime.

Snyders J of the SCA held that the FO should be set aside and, in doing so, confirmed a number of legal principles:

1. The court stated that in order to obtain the FO the NDPP must prove:
1.1. that the First Appellant is indeed a drug dealer i.e. he committed an “unlawful activity”; and
1.2. that the mentioned assets were acquired with the proceeds of these activities.

2. Secondly, though the definition of “unlawful activity” is “...conduct which constitutes a crime...”, a prior criminal conviction is not required. The NDPP must prove, on a balance of probabilities, that the conduct constitutes a crime.

3. Thirdly, he reiterated the “age-old basic principles that pertain to evidence on affidavit: “The grounds of the deponent’s belief must be stated so as to show that he has some reasonable and proper cause for making the statement and has not sworn merely to raise an issue.” All the affidavits submitted by the NDPP to support the allegation of “unlawful activities” fell short of this principle.


Written by Jac Marais (Partner) and Paton J Dennison (Candidate Attorney) at Adams & Adams Attorneys