Judge President: Northern Cape High Court
COMMENTS ON THE PREVENTION OF ORGANISED CRIME BILL, 1998 BY THE JUDGE PRESIDENT, NORTHERN CAPE DIVISION OF THE HIGH COURT
SECTION 1(10)(f) Are there activities which can be described as "usual" criminal gang activities? There would be no vagueness if the activities which are contemplated are described with reference to the first and/or second schedules to the Bill.
SECTION 1(xiv) It seems rather artificial and grammatically wrong to describe two acts as a pattern
SECTION 2(3)(a) The word "of" in the first line should read "with"
SECTION 2(3)(b) (1) Sub-section (b) (i) serves no purpose. If the National Director is to be of the opinion that an organised crime has been committed, then the reference to a reasonable suspicion that a crime has been committed is meaningless.
(2) The reference to "organised crime" is rather vague. It would be advisable to define the phrase in section 1.
SECTION 4(3)
The section deals with a person who "derives proceeds from an offence", but a reader is left completely in the dark as to what "gross profits or other proceeds" means. If it is intended to convey that such a person may be fined not more than twice the monetary value of such proceeds, then that is what should be said.
SECTION 4(4)(b) The word "established" in the third line should read "establishes"
SECTION 5
The meaning of the phrase "property concerned in the commission of an offence" is not clear. It could mean:
(1) property with which an offence is committed, or
(2) property which is the subject-matter of an offence, or
(3) the proceeds of the latter property, or
(4) property acquired with such proceeds, or
(5) all or some of the aforegoing property
Either the phrase should be defined in section 1, or section 5(1) should be framed in such a manner that it is clear what property is contemplated. The former is, I think, preferable, because section 5 is not the only section in which the phrase appears.
SECTION 6(3) The reference should, I think, be to sub-section (2) and not to (1)(b).
SECTION 7(1)(a)(ii) The reference to "any property" is too wide, and can lead to abuse. Only possession etc. of property in regard to which there is a reasonable suspicion that it is of the nature contemplated in section 5 should render the possessor liable to examination, and then only in respect of that property.
SECTION 7(2)(a) The word "order" should read "orders".
SECTION 11(1)(i) The phrase "to perform any particular act" is too vague. One would have thought that the curator should be enjoined:-
(i) to assume control over the property,
(ii) to take care of the property,
(iii) to administer the property, and to do any act necessary for that purpose,
(iv) where the said property is a business
SECTION 12(2)(c) Sub-section (2) deals with an order made under sub-section (1), which only empowers the Court to order the endorsement of title deeds, with no reference to any payment being made to the State. The reference to a payment to the State in sub-section (2) (c) is therefore wrong.
SECTION 12(4) This section contemplates that custody of the property is to vest in the trustee or liquidator. The question of their rights and obligations in respect of the property is left in the air. They will want to know what to do with the property?.
SECTION 13(1) A High Court cannot make provision for living expenses and legal expenses. It can only order that such provisions be made, and then only if it indicates by whom or out of what fund such provisions is to be made.
SECTION 13(2)
Apart from the fact that the word "is" in sub-paragraph (2) (b) should read "was" it does not appear what "property" is referred to in that sub-section and in sub-sections (c) and (d). It cannot refer to his unrestrained property mentioned in (a), so what property does is refer to? It is also not clear (whatever property is contemplated) why the interests in the property should be brought within the jurisdiction of the Court before the person concerned is entitled to provision for his/her living and legal expenses.
SECTION 15(4). The phrase "except as ordered by the High Court" should, in order to make proper sense, read "unless ordered by the High Court to do so" or "subject to any directives by the High Court" The second "otherwise" in sub-section(b) should merely read "other".
SECTION 16(1)(b)(ii) What "proceedings" are contemplated? As it stands this sub-section is meaningless.
SECTION 16(3)(a) It should be indicated what orders are contemplated, i.e. orders in terms of which sections, otherwise it is vague.
SECTION 17(1) The final phrase "when the forfeiture order takes effect" is meaningless.
SECTION18(3) To avoid any fanciful arguments, the sub-section should, I consider, read:
"The absence, despite proper notice in terms of section 17(2) above having been given…"
SECTION 19(1) and (19(5) Subsection (1) empowers the Court "when it makes a forfeiture order or at any time thereafter" to make the order envisaged. Sub-section (5) conflicts with this.
SECTION 21(1) 1 The reference should be to an order made under section 17(1) and not 19(3)
2. The application was heard by the High Court, so the appeal should be to the Full Bench of the High Court.
3. Only a person who appeared at the hearing of the application is given a right of appeal. It is, however, conceivable that the National Director was unaware of a certain person's right to the property concerned, and therefore did not give him notice of the application. If that person becomes aware of the order as a result of its publication in the Gazette, he should have the right to intervene.
SECTION 22(1) 1. An order takes effect immediately it is made unless the Court orders otherwise, and section 17(1) does not empower the Court to delay its order coming into effect unless the phrase "when the forfeiture order takes effect" (which I critised above) bears a meaning which I cannot fathom. This sub-section need only read: "upon the making of a forfeiture order the property subject to the order vests in …."
2. The property is said to vest "in the curator bonis" but there is no provision for the appointment of a curator bonis.
SECTION 25(1)(c)(i) 1. The word "of" in the third line should read "with".
2. It is not clear why only proceedings in the High Court should be the subject of this exception. Proceedings in any court of law should be covered.
SECTION 30(c) The intention is probably to enjoin the Judge-President "to immediately designate a judge .. to hear and determine the application (not action) without indue delay"
SECTION 33(2)(a) It is not clear who the "claimant" referred to is. Is it the person claiming the attachment, or is it a person laying claim to the property in question?
SECTION 37(2) The word "diverted" should read "divested".