Below are two articles published by Professor Vivian of the University of Witwatersrand, Johannesburg.

I express my gratitude to Professor Vivian for coming forward, putting his head on the block and standing up for the Bill of Rights. His effort takes courage and conviction and it is to be admired and respected.

His articles are eloquent and to the point. When presented with the facts then you don't need to be a lawyer to see that the forfeiture of my home was not only wrong but, from a human rights perspective, the action was entirely illegal so it was not surprising that 10 000 people did sign my petition and given time I could acquire millions of signatures so you have to ask yourself "Who supports civil asset forfeiture?"

I do not think the Asset and Forfeiture Unit could compete with me in collecting signatures so we are tasked to ask "To what degree is this the interest of ordinary people versus the interest of big business?"

I don't have the answers except to say that civil asset forfeiture is anti-constitutional.

 

 

 

   

FIRST ARTICLE

 

"SA’s Constitutional Safeguards are in Tatters" 

Robert W Vivian

Published by the Free Market Foundation 10th September 2009

 

Constitutions should limit government, not facilitate it. 

Governments and rulers that violate citizens’ fundamental rights to property prompt civil uprisings and revolutions. Famous codes including Magna Carta, the English Bill of Rights, the Constitution and Federal Bill of Rights of the United States , and the (French) Declaration of the Rights of Man were written to protect citizens’ rights. Nowadays government powers are often limited by constitution and independent judiciary. In a string of recent court cases, Simon Prophet was acquitted of making drugs at home but the Asset Forfeiture Unit (AFU) seized his home using the Prevention of Organised Crime Act (POCA). Both Supreme Court of Appeal (SCA) and Constitutional Court (CC) rejected his appeals and trampled our precious constitutional safeguards underfoot.

Due Legal process

Magna Carta guaranteed no deprivation of life, liberty or property except by due process of law. POCA ignores due process to say assets (not people) commit ‘crimes’, like Darius the Great (492BC) having the sea flogged when his fleet foundered in a storm. Saying assets commit civil offences rather than crimes, AFU use criminal laws to effect civil forfeiture.

First AFU applies secretly to a judge for a ‘preservation order’, thus bypassing the public trial required by due process. The judge must decide given a one-sided view instead of (due process) hearing both sides. He relies on an affidavit without seeing (due process) evidence. Unsurprisingly a judge declared the whole process unconstitutional when AFU first approached him to approve taking private property in this extraordinary manner.

Then AFU can approach the court again for a ‘forfeiture order’. If anyone else such as a bank has an interest in the property, they must file an answering affidavit with the court – another process new to SA civil and criminal law. POCA violates most due process requirements of constitutional law.

Right to silence 

Medieval witch trials illustrate why constitutions now enshrine the right to remain silent. Old people were killed as witches after court conviction based on ‘evidence’ of their ‘confession’ under torture. More torture, more witches.

POCA specifically seeks to deprive an accused of the right to silence, forcing either a replying affidavit or loss of AFU-seized property. No evidence was presented in Prophet’s case of organised crime including him. In his forced reply he acknowledged organised crime as a problem, then the court used his own words to prove its existence!

Double jeopardy

The constitution says nobody may be tried twice for the same offence. POCA violates this double-jeopardy rule. Preservation and forfeiture orders required courts to find that Prophet had committed a criminal offence. Acquitted once, he was then tried again twice and concurrently for the same offence – two simultaneous extra AFU bites at the cherry! SCA even noted SA’s uniqueness with POCA taking assets without a criminal conviction.

Evidence

Many important age-old rules require evidence presented orally in court, forbidding irrelevant and hearsay evidence. Unprecedented in jurisprudential history, legally no evidence was placed before the courts in the Prophet cases, which were apparently resolved based solely on affidavits. So several oddities emerge from the judgements. Without admitting the evidence record from the criminal trial, SCA concluded that it was dismissed on a technicality after merely being advised of this from the bar. Later the CC built on this technical aspect, so both courts reached important conclusions on aspects they refused to admit as evidence!

And courts accepted the existence of organised crime in South Africa based purely on the legally-irrelevant ‘evidence’ of a concession in Prophet’s affidavit. Why would Prophet, poor, unemployed and not part of any known organised gang, have knowledge, other than hearsay, of organised crime in SA? POCA violates rules of evidence.

Punishment fitting the crime

Politicians often deal with opponents by taking all their private assets as a ‘fine’ for some trumped-up ‘criminal’ charge. The (1800 BC) Code of Hammurabi’s Lex Talionis that the punishment must fit the crime appears in every major constitutional code worldwide, to ensure a strict link between crime and punishment. So a law that creates a crime also specifies its maximum punishment. AFU unconstitutionally seeks to seize private assets exceeding stipulated punishments. Violating the principle also creates inequality before the law, as people in identical circumstances are treated vastly differently by POCA. Layabouts without assets walk free while a worker loses his home!

Seizure without trial

Constitutions usually oblige judges to guarantee fair trial but Prophet’s home was taken without a trial. Considering all the violated constitutional safeguards, the Prophet case was no trial and produced further strange anomalies. One purpose of a trial is to let the accused present evidence, but Prophet was still trying as late as the CC case to admit the record of the criminal trial, which was refused.

Conversely SCA wanted Prophet to show evidence why he shouldn’t lose his house. But when, since there was no trial should he do this? In his replying application, before even appearing in court? And CC wished Prophet had correctly formulated the constitutional issues. But when was he supposed to do this – in his replying affidavit? With trial court procedures ignored, no wonder such anomalies appear in judgments! POCA and the courts ensured that Prophet got no trial, fair or otherwise, thus most grievously breaching the constitution.

Presumption of innocence and trial by media

Did so many violations prompt public outcry or at least protests from legal bodies? On the contrary, editorials in two leading newspapers supported seizing private assets. A universal theme said Prophet’s acquittal was on a technicality so he deserved to lose his assets!

When Hitler dissolved parliament and gave himself all constitutional power he released statement after statement, dutifully repeated by the press, about evidence he had of a communist plot. No such evidence existed. Senator Joseph McCarthy in America made similar unsubstantiated claims. AFU clearly manipulates the SA press like that. While searching Prophet’s home, the press were let in, but who notified them? Certainly not Prophet! POCA has led to disregarding the constitutional presumption of innocence.

Conclusion

In the Prophet cases various constitutional principles were breached - safeguards which evolved over centuries to protect us from the state; and our rights to life, liberty and property. Now it has been announced that POCA applies to all alleged crimes, even mere traffic offences. Clearly little remains of South Africa’s constitutional safeguards. They are in tatters and our nation is again in jeopardy!

 

 

 

   

SECOND ARTICLE

 

"Breaking every safeguard in the book"

 Robert W Vivian

Posted to the web on: 13 March 2007
 

THE Simon Prophet series of court cases illustrates how the operation of SA’s pernicious asset forfeiture legislation violates the most fundamental constitutional safeguards intended to protect South Africans and their property from violent state action and seizure. Prophet had his house seized as being “an instrumentality of an offence”, but he was found not guilty of the charge that was brought against him. The state nevertheless took his house and the courts did not compel the state to return his property to him. In other countries with similar legislation, property forfeiture orders cannot be granted until after a criminal conviction. In SA, being found not guilty of criminality does not protect the individual, as it should, from asset forfeiture.  

First, the facts of the case. We cannot with certainty say what the facts of the case are. The asset forfeiture procedure avoids a trial, which means that the facts are not tested in court. All we know is what the police allege and that these allegations are treated as facts. In January 2001, the police suspected that the unemployed Prophet was manufacturing drugs at his home, which if true would have contravened several laws. They raided his home and found parts of it set up as a laboratory. They also found some manufactured chemicals, which were poured down the drain when the police captain, assigned to keep watch, left to let the press in. Prophet was subsequently acquitted of all criminal charges, but his home was nevertheless declared forfeit to the state.

An application for a preservation order (for the state to hold the asset) starts off with a secret hearing based exclusively on police affidavits. Prophet need not be informed of the hearing and has no right to appear before the court. The police may even, if they so choose, lie in the affidavits. If found out, the police can file further affidavits. The double jeopardy (being punished twice for the same offence) rule is not applied. Since the court has only the police affidavits to go by, it is a foregone conclusion that the preservation order will be granted, allowing the state to hold the asset until it has obtained a forfeiture order. In the Prophet case, it was granted in June 2001.  

The next step is the forfeiture order. Now Prophet may file an answering affidavit. To do so he must give up the right of silence. Whatever he says (or does not say) can be used against him. If he does not reply he loses his home. He replied, and made an unsuccessful application to stay the forfeiture case pending the outcome of the criminal case. He applied for leave to appeal; this was denied.

He appealed to the Supreme Court of Appeal (SCA), which granted the right to appeal. In the meanwhile, the criminal case was heard and he was acquitted of all criminal charges. He lost the case before the Supreme Court. It decided that if he did not want to lose his house he should have filed reasons why he should not lose his house. It is difficult to see when he should have done so, since his application before the high court was to stay the proceedings pending the criminal case. The SCA is a court of appeal, not a trial court, so filing reasons relating to forfeiture of his house would be inappropriate to do so at the appeal stage. So now the matter was bogged down by mere procedures, caused by the fact that the forfeiture legislation is designed to avoid the proper, centuries-old, trial procedures. The court granted Prophet leave to appeal in respect of the question of whether the forfeiture of his property was constitutional or not. Prophet took the matter to the Constitutional Court.

To date, the Constitutional Court has agreed with the state on all asset forfeiture cases, overturning high court decisions declaring the asset forfeiture legislation to be unconstitutional. The court decided that Prophet could not argue that the asset forfeiture legislation was unconstitutional since he did not do so at the previous hearings. So if we understand the courts correctly, when filing the initial replying affidavit, the accused must at the same time also file reasons why he should not lose his property and why the action is unconstitutional — that is, before the courts have decided anything. His application to adduce further evidence about the dismissal of the criminal charge was also dismissed. He could not raise this earlier, since it had not happened when the high court first heard the case.

Prophet had protested that he was not involved in organised crime. The court referred to his own answering affidavit in which he agreed that the country faced an organised crime problem. This illustrates why the right of silence is important. He clearly can have no knowledge of the state of organised crime in the country. His statement about organised crime was both hearsay and irrelevant. The court has now indicated that it is not overly concerned about these rules. Had the centuries-old due process of law been followed, all of these procedural issues would have been dealt with in the correct sequence.  

The Prophet case illustrates how every known constitutional safeguard is violated in these asset forfeiture cases, including the presumption of innocence, the right of silence, the due process of law, the right to trial, the double jeopardy rule, punishment fitting the crime, and the rules of evidence. That Prophet could not rely on these safeguards means that no one can, which could not have been the intention of the legislature in approving the asset forfeiture legislation to assist the state in confiscating “the proceeds of organized crime”.