11 April 2007

South Africa: Seizing the Sense Behind the Law


Johannesburg — THE Constitutional Court is seldom more interesting than when it is divided. In Mohunram v The National Director of Public Prosecutions, handed down last month, the judges were as close to evenly split as they can be -- six to five. The question that divided them is one that is increasingly coming to define our national identity: what measure of pain is the state permitted to inflict upon wrongdoers in its quest to contain crime? The matter at hand was how aggressive asset forfeiture can get before it violates the right to property. Kumarnath Mohunram was a small-town businessman from Vryheid. From one part of his commercial premises he ran a glass and aluminium business. From the other he ran 57 gambling machines. In 2001, he was charged with running a casino without a licence. Under criminal law, he paid R88500 in admission of guilt fines. His gambling machines, worth R285000, were seized and destroyed.

So much for the criminal law. Next, the public prosecutor launched a civil case against Mohunram under SA's asset forfeiture law, which permits the state to confiscate property used to commit a crime, and assets deemed to be proceeds of crime. The civil court ordered the forfeiture of Mohunram's premises, including the part from which he ran his legitimate business, on the grounds that they had been used as instruments of crime.

The matter that divided the Constitutional Court was whether this robust use of asset forfeiture law violated Mohunram's right to property. The majority said that it did. In two separate judgments, Dikgang Moseneke and Albie Sachs said the purpose of asset forfeiture law was to go after big fish: racketeering, extortion, large-scale money laundering. Gutting a minnow like Mohunram strayed too far from the law's purpose. Besides, the criminal law had already dealt with him. Nailing him again with the civil law was gratuitous, a greedy lunge for a bigger piece of him.

The minority judgment, penned by acting constitutional court judge Belinda van Heerden, begged to differ. The statute states quite clearly, she argued, that asset forfeiture's reach extends beyond organised crime. It explicitly lists illegal gambling as an offence to which forfeiture applies. And among the express purposes of forfeiture is to deter people from using their property as instruments of crime. Van Heerden's judgment is a model of clarity. It gives the prosecution service a crisp interpretation of the law, and thus an easy guide from which to conduct its business. The two judgments that constitute the majority are messy and opaque: they pass on to the prosecution and the lower courts a great deal of confusion.

Yet if Moseneke's and Sachs's judgments are not as elegant as Van Heerden's, they are far wiser, for they have gone some way in teaching a thoughtless legislature something about law-drafting. It is instructive to recall the context that gave birth to civil asset forfeiture. It of course has different roots in different jurisdictions, but one of the origins of the current fashion can be traced to March 1982, when a man named Pio La Torre, head of the Communist Party in Sicily, appealed to Italy's parliament to make it possible to confiscate the assets of known mafiosi if it could be shown that they were acquired with proceeds of crime.

The context was this: the mafia controlled Sicily's construction industry and most of its capital markets. Using these instruments, they had effectively taken control of the island's public policy, from urban design to policing. Public officials who crossed them were systematically murdered. If only, La Torre thought aloud, we could follow the money trail from drugs and racketeering to the construction companies and the banks; and if only we could bring these companies and banks down, we could transfer control of public policy back to democratic institutions. Weeks after he made his appeal, La Torre was assassinated.

By the time SA came to contemplate forfeiture, it was so much in fashion it was considered almost obligatory. Organised crime was the greatest threat to fledgling democratic states like ours, we were told. If we do not want public policy to be hijacked the way it was in Sicily, we need state-of-the-art enforcement.

The justice department drafted the law in the late 1990s. At precisely that time, the legislature had begun in earnest to throw the kitchen sink at SA's crime wave. Parliament was behaving like the figure in a music box; open its lid and it would pop up and sing for more punishment.

Handed yet another weapon -- asset forfeiture -- the legislature couldn't help itself. The title of the act sticks close to the original purpose of asset forfeiture: "to introduce measures to combat organised crime, money laundering and criminal gang activities". Yet by the time the drafters got round to the meat of the legislation, they had, in their excitement, forgotten all about its purpose. They chucked in every crime they could think of, including any offence that carries a jail term of more than a year.

Van Heerden read the statute with faultless rigour. The title of the act, she said, is "incorrect" and "unfortunate", since "the wording of the act as a whole makes it clear that its ambit is not in fact limited to so-called organised criminal offences".

Moseneke and Sachs chose another path: hold on, they told the legislature. You may have forgotten the title of your own statute by the time you'd finished writing it, but we're going to hold you to it nonetheless. You can list as many crimes as you like, but unless the crime in question "has some rational link with racketeering, money laundering and criminal gang activities", asset forfeiture runs the risk of being disproportionate and thus unconstitutional. Hence, Mohunram keeps his property.

Unfortunately, it is sloppy law. Just a few months ago, the court okayed forfeiture proceedings against a lone entrepreneur who manufactured tik. No evidence was produced that he was a member of an organised syndicate, a racketeer, or a gang member. Yet the court ruled that civil forfeiture was constitutionally permissible.

It has thus created a wide grey zone in which prosecutors cannot know whether their actions are permissible. Prosecutors will thus make narrow and conservative choices. But perhaps that is a good thing. The legislature of the late 1990s was unhinged. It didn't have the means to make our justice system work better. So it did the one thing it could do: rip the guts out of the few wrongdoers caught. That's the task to which it almost turned asset forfeiture. But that is not what asset forfeiture is for.

--Steinberg is a freelance journalist.

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