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SUPREME COURT OVERTURNS FREE RIDE FOR PRE-POCA HOARDERS

19/12/2022 08:59:00 Mbongiseni Ndzimandze

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MBABANE – Members of the public and businesspeople who acquired their properties or items through ill-gotten means before the advent of POCA, are not off the hook.

This is so because the Supreme Court has set aside the judgment of the High Court where it ruled against the retrospective application of the Prevention of Organised Crime Act (POCA) of 2018. Retrospective means looking back or dealing with past events or situations. The setting aside of the High Court judgment means that POCA will continue to be applicable in dealing with cases or offences that were committed before it came into force. The Act came into operation on June 6, 2018. The judgment by the apex court further means that the Crown will continue to be at liberty to seize properties of people suspected to have been obtained through criminal activities prior to the POCA coming into force, some even five years before the Act became operational.

Discharge

Judge Cyril Maphanga, who heard the matter at the High Court, issued the ruling in the case where South African Law Professor Frances Whelpton wanted the court to discharge an order authorising the State to continue freezing his local bank accounts. The professor had argued that the monies were deposited into the different accounts before the advent of POCA. Judge Maphanga found that there were no justifiable grounds to continue freezing Whelpton’s bank accounts. He said the admitted facts in the matter pointed to the factual circumstances and events pertaining to the acquisition of the property occurring prior to the commencement of the Act. He held that the provisions of Section 42 and Section 52 as well as Part VIII of the POCA were to be construed to operate in a non-retrospective (prospective) manner and in that regard, Section 119 of the Constitution, which prohibited the enactment by Parliament of retroactive legislation in the sense of adversely affecting the personal rights and liberties of a person, was peremptory.

Meanwhile, in its judgment, the Supreme Court said looking at POCA holistically and understanding the various parts of the Act would help to understand its import. “Apart from Section 3 (racketeering) and Section 5 (gang-related offences) of the Act, POCA is not a substantive Act but a procedural legislation. Apart from the two sections, it does not create any offences, instead it recognises offences that are already in existence and simply sets out procedures of how to deal with the spoils coming from those offence,” said the Supreme Court. The matter was heard and decided by Supreme Court Judges, Sabelo Matsebula, Stanley Maphalala and Acting Judge Mabandla Manzini.

Instruments

Judge Matsebula, who wrote the judgment, continued to state that POCA provided procedure for dealing with ill-gotten property (proceeds of crime) and instruments used in the commission of the offence. He further highlighted that another way of understanding POCA was to appreciate Section 52 of the Criminal Procedure and Evidence Act, 1938 (CP&E). He said the statutes were interrelated. According to Judge Matsebula, POCA was to a large extent an amplification of Section 52 of the CP&E. Section 52 (1) of the CP&E provides that: “If on the arrest of any person on a charge of an offence relating to property, the property in respect of which the offence is alleged to have been committed is found in possession, the person making the arrest (as the case maybe) the person seizing or taking the thing shall deliver such property or thing, or cause to be delivered to a magistrate within such times as is reasonable.”

The Act further states that a magistrate should cause the property or thing so seized or taken to be detained in such custody as he might direct, taking reasonable care its preservation until the conclusion of a summary trial or any investigation that might be held in respect of it. “There is no doubt in our mind that POCA, especially Section 42 and 52, are just an amplification of Section 52 of the CP&E. If this conclusion is correct and Section 52 of the CP&E has been and is still being applied by our courts on tainted property, there is no reason why Section 42 and 52 of POCA with similar intent should not enjoy the same force of law,” said the Supreme Court judges. The court further stated that, with or without POCA, property obtained through ill-gotten means was open to seizure, preservation and confiscation under the current regime of the country’s statutes.

The court pointed out that the schedule of offences in POCA listed about 38 offences; theft and fraud among them. The court mentioned that theft at common law was a continuing crime. It went on to state that, Section 119 of the Constitution prohibited the enactment of legislation by Parliament that had a retroactive effect to legally entrenched rights and liberties but had no application to tainted rights or purported rights whether possessory or ownership. “The Constitution as an embodiment of legal rights and obligations cannot be seen to protect ill-gotten property that is proceeds of crime but seeks to entrench lawful rights to lawful possessor and to lawful owners,” reads part of the judgment. In its judgment, the apex court made an example that, a person who stole another person’s thing or property, or a thief in short did not have any ownership rights on the stolen property.

“Section 119 of the Constitution protects rights lawfully obtained or lawfully entrenched. The question of retroactivity as provided in Section 119 of the Constitution does not apply to proceeds of crime. Theft and fraud as a continuing crime is not protected by the provisions of Section 119 of the Constitution,” said the court. The court said the Constitution should not be subjected to or be bounded by some law, purportedly inferior to it. The Supreme Court highlighted that its caution was that every provision of the Constitution must be thoroughly examined and not taken at face value to get the correct import of that provision. “It is a fact that POCA is a treaty based and crafted from the United Nations Convention against Transactional Organised Crimes signed in Palermo, Italy in December 2000, where the international community demonstrated the political will to answer global challenge with global response - if crime crosses borders, so must the law enforcement do likewise,” said the court.

Constitution

According to the Supreme Court, the Government of the Kingdom of Eswatini had fully complied with Section 238 of the Constitution by ratifying the Convention and further passing it to POCA. “The country, according to the Constitution, is therefore bound to all contents of the treaty except to those articles it excluded or reserved. Reservation is possible to a treaty, provided the sought to be reserved articles are not the core article of the Convention,” reads part of the judgment. In conclusion the Supreme Court judges said, Section 42, 52 and Part VIII of POCA were retroactive ( and prospective) hence in the present matter they hold them to be having a retrospective effect. POCA expect Section 3 and 5, according to the judges, was a procedural legislation and not a substantive legislation creating offences.

“It lays down the procedure of dealing or disposal off proceeds of crime and instrument so used in committing those offences,” said the court. The director of public prosecution, which was the appellant in this matter, was represented by Advocate Gareth Lappen who was instructed by Mxolisi Dlamini from the chamber of the director of public prosecutions (DPP), while for the respondent was Advocate Van Zyl who was instructed by Howe Masuku Attorneys.