I. Criminal Asset Recovery
1. Tracing
Information is not available.
An order of restraint or preservation must be obtained before any assets are frozen or seized. These orders are processed according to civil standards (with the burden of proof resting on a balance of probabilities). For a restraint order there must be a prosecution already instituted (or reasonable grounds to believe that one will be) or a confiscation order (or reasonable grounds to believe that there will be one). For a preservation order there must be reasonable grounds to believe that the asset in question is proceeds or an instrumentality of a criminal offence. A restraint or preservation order is usually obtained prior to a confiscation or forfeiture order.
This allows assets to be seized by any police official to ensure that they are not disposed of or altered in a way that may hinder criminal asset investigations or lessen any possible confiscation or forfeiture. In some cases, particularly those in which seized assets require administration, such as a business, a curator bonis is appointed by the court to maintain and administer the assets until such time as the Court determines whether the assets should be confiscated or forfeited.
A court order must be obtained to confiscate or forfeit criminally obtained assets. All orders are granted if the civil standard (on a balance of probabilities) is satisfied, however restraint and confiscation orders depend respectively on the existence of a criminal prosecution and conviction.
In confiscation proceedings it must be shown that the accused benefited from his/her offence, and the amount of the benefit. There are provisions that increase the amount that can be requested from the Court in the confiscation order, for example, in cases where the accused has previously been engaged in related criminal activities or where the accused cannot justify owning assets that he/she has, i.e. he/she cannot show that the assets are derived from a legitimate source of income. The value of those assets is calculated and a confiscation order is sought in the amount of the value of those assets.
Preservation and forfeiture, on the other hand, do not depend on the existence of a criminal prosecution but there must be evidence of some criminal activity.
4. Repatriation
After a final confiscation or forfeiture order the forfeited assets are held in the Criminal Assets Recovery Account pending a decision by the Cabinet on how the funds are to be utilized. The Cabinet would, in this regard take the advice of the Criminal Assets Recovery Committee (composed of a Minister/Chairperson, Minister of Safety and Security, Minister of Finance, National Director, and, sometimes, two other persons designated by the Minister) and direct whether the funds are to be allocated to specific law enforcement agencies, or institution, organization or fund which assists victims of crime or to administer the account.
Civil forfeiture actions can be brought against the stolen property itself; all that is required is proof to the civil standard of the connection between the property subject to forfeiture and criminal conduct. In relation to foreign requests some of the more restrictive traditional safeguards of international cooperation, such as double criminality, do not apply. Civil asset forfeiture usually follows a preservation order in which assets can be frozen or seized until such time as the Court determines their connection to criminal conduct.
Apart from the mechanisms described above, the Special Investigating Units and Special Tribunals Act, 1996 (Act No. 74 of 1996) created the Special Investing Unit and in addition gives the President the power to set up, where it is deemed necessary, an ad hoc Special Investigating Unit to investigate allegations of corruption and seek recovery through civil suit where assets have derived from criminal acts.
Such proceedings differ from criminal proceedings, in that the right to remain silent is not available in a civil proceeding. The owner of an asset, or one in possession of it such as a bank, can be required to testify and, if he refuses, imprisoned for contempt. As a safeguard, the removal of the right to silence is balanced by providing that any testimony can only be used in the civil forfeiture case and may not be relied upon in any criminal proceeding.
The Act also permits the President to establish a Special Tribunal to handle the cases being pursued by a Special Investigating Unit, which has all the powers of a High Court. The advantage of such a tribunal is that it is not burdened with other cases and can thus act quickly to issue freezing orders, if appropriate and dispose the civil proceedings.
