Constitutional Safeguards are in Tatters"
Robert W Vivian
Published by the Free Market Foundation 10th
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
, 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
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
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!
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.
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
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
Punishment fitting the
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
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
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!