[ASSENTED TO 24 NOVEMBER, 1998]

[DATE OF COMMENCEMENT: 21 JANUARY, 1999]

(English text signed by the President)

as amended by
Prevention of Organised Crime Amendment Act, No. 24 of 1999

Preamble.

WHEREAS the Bill of Rights in the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), enshrines the rights of all people in the Republic and affirms the democratic values of human dignity, equality and freedom;

AND WHEREAS the Constitution places a duty on the State to respect, protect, promote and fulfil the rights in the Bill of Rights;

AND WHEREAS there is a rapid growth of organised crime, money laundering and criminal gang activities nationally and internationally and since organised crime has internationally been identified as an international security threat;

AND WHEREAS organised crime, money laundering and criminal gang activities infringe on the rights of the people as enshrined in the Bill of Rights;

AND WHEREAS it is the right of every person to be protected from fear, intimidation and physical harm caused by the criminal activities of violent gangs and individuals;

AND WHEREAS organised crime, money laundering and criminal gang activities, both individually and collectively, present a danger to public order and safety and economic stability, and have the potential to inflict social damage;

AND WHEREAS the South African common law and statutory law fail to deal effectively with organised crime, money laundering and criminal gang activities, and also fail to keep pace with international measures aimed at dealing effectively with organised crime, money laundering and criminal gang activities;

AND BEARING IN MIND that it is usually very difficult to prove the direct involvement of organised crime leaders in particular cases, because they do not perform the actual criminal activities themselves, it is necessary to criminalise the management of, and related conduct in connection with enterprises which are involved in a pattern of racketeering activity;

AND WHEREAS persons should not benefit from the fruits of organised crime and money laundering, legislation is necessary for the preservation and forfeiture of property which is concerned in the commission or suspected commission of an offence;

AND WHEREAS there is a need to devote such forfeited assets and proceeds to the combatting of organised crime and money laundering;

AND WHEREAS the pervasive presence of criminal gangs in many communities is harmful to the well being of those communities, it is necessary to criminalise participation in or promotion of criminal gang activities:

1. Definitions and interpretation of Act

2. Offences
3. Penalties

4. Money laundering
5. Assisting another to benefit from proceeds of unlawful activities
6. Acquisition, possession or use of proceeds of unlawful activities
7. Failure to report suspicion regarding proceeds of unlawful activities
7A. Defence
8. Penalties

9. Gang related offences
10. Penalties
11. Interpretation of member of criminal gang

12. Definitions and interpretation of Chapter
13. Proceedings are civil, not criminal
14. Realisable property
15. Value of property
16. Gifts
17. Conclusion of proceedings against defendant

18. Confiscation orders
19. Value of proceeds of unlawful activities
20. Amounts which might be realised
21. Statements relating to proceeds of unlawful activities
22. Evidence relating to proceeds of unlawful activities
23. Effect of confiscation orders
24. Procedure where person absconds or dies

PART 3
Restraint Orders

25. Cases in which restraint orders may be made
26. Restraint orders
27. Seizure of property subject to restraint order
28. Appointment of curator bonis in respect of property subject to restraint order
29. Orders in respect of immovable property subject to restraint order

30. Realisation of property
31. Application of certain sums of money
32. Functions of curator bonis
33. Exercise of powers by High Court and curator bonis
34. Variation of confiscation orders
35. Effect of sequestration of estates on realisable property
36. Effect of winding-up of companies or other juristic persons on realisable property

37. Proceedings are civil, not criminal

38. Preservation of property orders
39. Notice of preservation of property orders
40. Duration of preservation of property orders
41. Seizure of property subject to preservation of property order
42. Appointment of curator bonis in respect of property subject to preservation of property order
43. Orders in respect of immovable property subject to preservation of property order
44. Provision for expenses
45. Maximum legal expenses that can be met from preserved property
46. Taxation of legal expenses
47. Variation and rescission of orders

48. Application for forfeiture order
49. Late entry of appearance
50. Making of forfeiture order
51. Notice of reasonable grounds that property is concerned in commission of offence
52. Exclusion of interests in property
53. Forfeiture order by default
54. Exclusion of interests in forfeited property
55. Appeal against forfeiture order
56. Effect of forfeiture order
57. Fulfilment of forfeiture order

58. Offence may form the basis of multiple orders
59. Application of Chapter to deceased estates
60. Effect of death of joint owner of preserved property
61. Expedition of applications
62. Procedure and rules of court

63. Establishment of Criminal Assets Recovery Account
64. Finances of Account
65. Establishment of Committee
66. Conditions of service, remuneration, allowances and other benefits of certain members of Committee
67. Meetings of Committee
68. Objects of Committee
69. Powers and Functions of Committee
69A. Utilisation of Account and accountability
70. Other matters to be prescribed

71. Access to information
72. Investigations
73. Sharing of information
74. Hearings of court to be open to public
75. Offences relating to misuse of information, failure to comply with order of court, and hindering person in performance of functions
76. Jurisdiction of courts
77. Regulations
78. Liability
79. Amendment and repeal of laws
80. Transitional arrangements
81. Short title and commencement

Schedule 1
Schedule 2
Schedule 3

1. Definitions and interpretation of Act.--(1) In this Act, unless the context otherwise indicates--

"Account" means the Criminal Assets Recovery Account established under section 63;

"authorised police official" means any official of the South African Police Service who is authorised by the National Director or the National Commissioner of Police to act under this Act;

"Committee" means the Criminal Assets Recovery Committee established in terms of section 65;

[Definition of "Committee" substituted by s. 3 (a) of Act No. 24 of 1999.]

"criminal gang" includes any formal or informal ongoing organisation, association, or group of three or more persons, which has as one of its activities the commission of one or more criminal offences, which has an identifiable name or identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity;

"enterprise" includes any individual, partnership, corporation, association, or other juristic person or legal entity, and any union or group of individuals associated in fact, although not a juristic person or legal entity;

"High Court", includes for the purposes of Chapters 2, sections 25 to 29 of Chapter 5 and Chapter 6 any judge thereof;

"instrumentality of an offence" means any property which is concerned in the commission or suspected commission of an offence, whether within the Republic or elsewhere;

[Definition of "instrumentality of an offence", formerly "Ainstrumentality of an offence", substituted by s. 3 (b) of Act No. 24 of 1999.]

"interest" includes any right;

"Minister" means the Minister of Justice;

"National Director" means--

1. for the purposes of section 65 (2) (d), the National Director of Public Prosecutions appointed in terms of section 179 (1) (a) of the Constitution;
2. for the purposes of sections 2 (4), 71 or 72 the National Director of Public Prosecutions appointed as contemplated in paragraph (a) and includes a Director of Public Prosecutions, an Investigating Director of Public Prosecutions and a Special Director of Public Prosecutions referred to in section 1 of the National Prosecution Authority Act, 1998 (Act No. 32 of 1998), who is authorised thereto in writing by the National Director in a specific case or in general;
3. for the purposes of all other relevant provisions of this Act, the National Director of Public Prosecutions appointed as contemplated in paragraph (a) and includes any functionary referred to in section 1 of the National Prosecuting Authority Act, 1998, which is under the control of the National Director and authorised thereto by the National Director in a specific case or in general;

"pattern of criminal gang activity" includes the commission of two or more criminal offences referred to in Schedule 1: Provided that at least one of those offences occurred after the date of commencement of Chapter 4 and the last of those offences occurred within three years after a prior offence and the offences were committed--

1. on separate occasions; or
2. on the same occasion, by two or more persons who are members of, or belong to, the same criminal gang;

"pattern of racketeering activity" means the planned, ongoing, continuous or repeated participation or involvement in any offence referred to in Schedule I and includes at least two offences referred to in Schedule 1, of which one of the offences occurred after the commencement of this Act and the last offence occurred within 10 years (excluding any period of imprisonment) after the commission of such prior offence referred to in Schedule 1;

"prescribed" means prescribed by regulation under section 77;

"preservation of property order" means an order referred to in section 38;

"proceeds of unlawful activities" means any property or any service, advantage, benefit or reward which was derived, received or retained, directly or indirectly, in connection with or as a result of any unlawful activity carried on by any person, whether in the Republic or elsewhere, except for purposes of Chapter 5 where it means--

1. any unlawful activity carried on by any person; or
2. any act or omission outside the Republic which, if it had occurred in the Republic, would have constituted an unlawful activity,

and includes any property representing property so derived;

[Definition of "proceeds of unlawful activities" amended by s. 3 (c) of Act No. 24 of 1999.]

"property" means money or any other movable, immovable, corporeal or incorporeal thing and includes any rights, privileges, claims and securities and any interest therein and all proceeds thereof.

(2) For purposes of this Act a person has knowledge of a fact if--

1. the person has actual knowledge of that fact; or
2. the court is satisfied that--
1. the person believes that there is a reasonable possibility of the existence of that fact; and
2. he or she fails to obtain information to confirm the existence of that fact.

(3) For the purposes of this Act a person ought reasonably to have known or suspected a fact if the conclusions that he or she ought to have reached are those which would have been reached by a reasonably diligent and vigilant person having both--

1. the general knowledge, skill, training and experience that may reasonably be expected of a person in his or her position; and
2. the general knowledge, skill, training and experience that he or she in fact has.

[Sub-s. (3) amended by s. 3 (d) of Act No. 24 of 1999.]

(4) Nothing in Chapters 2, 3 and 4 shall be construed to limit prosecution under any other provision of the law.

2. Offences.--(1) Any person who--

(a) (i) receives or retains any property derived, directly or indirectly, from a pattern of racketeering activity; and

[Sub-para (i) substituted by s. 4 (a) of Act No. 24 of 1999.]

(ii) knows or ought reasonably to have known that such property is so derived; and

[Sub-para. (ii) substituted by s. 4 (a) of Act No. 24 of 1999.]

(iii) uses or invests, directly or indirectly, any part of such property in acquisition of any interest in, or the establishment or operation or activities of, any enterprise;

(b) (i) receives or retains any property, directly or indirectly, on behalf of any enterprise; and

(ii) knows or ought reasonably to have known that such property derived or is derived from or through a pattern of racketeering activity;

[Sub-para. (ii) substituted by s. 4 (b) of Act No. 24 of 1999.]

(c) (i) uses or invests any property, directly or indirectly, on behalf of any enterprise or in acquisition of any interest in, or the establishment or operation or activities of any enterprise; and

(ii) knows or ought reasonably to have known that such property derived or is derived from or through a pattern of racketeering activity;

[Sub-para. (ii) substituted by s. 4 (c) of Act No. 24 of 1999.]

(d) acquires or maintains, directly or indirectly, any interest in or control of any enterprise through a pattern of racketeering activity;

(e) whilst managing or employed by or associated with any enterprise, conducts or participates in the conduct, directly or indirectly, of such enterprise's affairs through a pattern of racketeering activity;

( f ) manages the operation or activities of an enterprise and who knows or ought reasonably to have known that any person, whilst employed by or associated with that enterprise, conducts or participates in the conduct, directly or indirectly, of such enterprise's affairs through a pattern of racketeering activity; or

(g) conspires or attempts to violate any of the provisions of paragraphs (a), (b), (c), (d), (e) or ( f ),

within the Republic or elsewhere, shall be guilty of an offence.

(2) The court may hear evidence, including evidence with regard to hearsay, similar facts or previous convictions, relating to offences contemplated in subsection (1), notwithstanding that such evidence might otherwise be inadmissible, provided that such evidence would not render a trial unfair.

(3) For purposes of proving a previous conviction during a trial in respect of an offence contemplated in subsection (1), it shall be sufficient to prove the original record of judicial proceedings if a copy of such record, certified or purporting to be certified by the registrar or clerk of the court or other official having the custody of the record of such judicial proceedings or by the deputy of such registrar, clerk or other official or, in the case where judicial proceedings are taken down in shorthand or by mechanical means, by the person who transcribed such proceedings, as a true copy of such record, is produced in evidence at such trial, and such copy shall be prima facie proof that any matter purporting to be recorded thereon was correctly recorded.

(4) A person shall only be charged with committing an offence contemplated in subsection (1) if a prosecution is authorised in writing by the National Director.

3. Penalties.--(1) Any person convicted of an offence referred to in section 2 (1) shall be liable to a fine not exceeding R1 000 million, or to imprisonment for a period up to imprisonment for life.

(2) Notwithstanding any other law dealing with the penal jurisdiction of the regional court, if a regional court, after it has convicted an accused of an offence referred to in section 2 (1) following on--

1. a plea of guilty; or
2. a plea of not guilty,

but before sentence, is of the opinion that the offence in respect of which the accused has been convicted merits punishment--

1. in excess of the penal jurisdiction of the regional court but not exceeding a fine of R100 million or a period of 30 years imprisonment, the regional court shall have jurisdiction to impose such penalty even though that penalty exceeds the penal jurisdiction of that court; or
2. exceeding a fine of R100 million or a period of 30 years imprisonment or merits imprisonment for life, the regional court shall stop the proceedings and commit the accused for sentence by a High Court having jurisdiction.

(3) If a regional court has committed an accused for sentence by a High Court in terms of subsection (2) the provisions of section 52 of the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997), notwithstanding the provisions of section 53, shall apply with the necessary changes regarding the referral by the regional court to the High Court.

4. Money laundering.--Any person who knows or ought reasonably to have known that property is or forms part of the proceeds of unlawful activities and--

(a) enters into any agreement or engages in any arrangement or transaction with anyone in connection with that property, whether such agreement, arrangement or transaction is legally enforceable or not; or

(b) performs any other act in connection with such property, whether it is performed independantly or in concert with any other person,

which has or is likely to have the effect--

shall be guilty of an offence.

5. Assisting another to benefit from proceeds of unlawful activities.--Any person who knows or ought reasonably to have known that another person has obtained the proceeds of unlawful activities, and who enters into any agreement with anyone or engages in any arrangement or transaction whereby--

1. the retention or the control by or on behalf of the said other person of the proceeds of unlawful activities is facilitated; or
2. the said proceeds of unlawful activities are used to make funds available to the said other person or to acquire property on his or her behalf or to benefit him or her in any other way,

shall be guilty of an offence.

[S. 5 amended by s. 7 of Act No. 24 of 1999.]

6. Acquisition, possession or use of proceeds of unlawful activities.--Any person who--

1. acquires;
2. uses; or
3. has possession of,

property and who knows or ought reasonably to have known that it is or forms part of the proceeds of unlawful activities of another person, shall be guilty of an offence.

[S. 6 substituted by s. 8 of Act No. 24 of 1999.]

7. Failure to report suspicion regarding proceeds of unlawful activities.--(1) Any person who carries on a business or is in charge of, or manages a business undertaking or who is employed by a business undertaking and who suspects or ought reasonably to have suspected that--

1. any property which comes into his or her possession or the possession of the said business undertaking is, or forms part of, the proceeds of unlawful activities;
2. a transaction to which he or she or the business undertaking is a party will facilitate the transfer of the proceeds of unlawful activities; or
3. a transaction to which he or she or the business undertaking is a party and which is discontinued--
1. may have brought the proceeds of unlawful activities into possession of the person or business undertaking; or
2. may have facilitated the transfer of the proceeds of unlawful activities, had that transaction been concluded,

[Sub-para. (ii) amended by s. 9 (b) of Act No. 24 of 1999.]

must report his or her suspicion and all available information concerning the grounds on which it rests, within a reasonable time to a person designated by the Minister and shall take all reasonable steps to discharge such obligation.

[Sub-s. (1) amended by s. 9 (a) of Act No. 24 of 1999.]

(2) A report under subsection (1) shall be accompanied by copies of documentation directly relevant to that suspicion and the grounds on which it rests.

(3) A person to whom a report may be made under subsection (1) may, in writing, require the person making the report to provide him or her or an official identified in the request with--

1. particulars or further particulars of any matter concerning the suspicion to which the report relates and the grounds upon which it rests; and
2. copies of all available documents concerning such particulars or further particulars.

(4) When a person receives a request under subsection (3) he or she shall furnish the person who made the request with the requested particulars or further particulars and copies of documents to the extent that such particulars or documents are available to him or her within a reasonable time.

(5) (a) No obligation as to secrecy and no other restriction on the disclosure of information as to the affairs or business of another, whether imposed by any law, the common law or any agreement, shall affect any obligation imposed under this section to report or disclose information or to permit access to any registers, records or other documents unless that obligation of secrecy or other restriction is based on the common law right to professional privilege between an attorney and his or her client in respect of information communicated to the attorney so as to enable him or her to provide advice, to defend the client or to render other legal assistance to the client in connection with an offence under any law in respect of which the client is charged, in respect of which he or she has been arrested or summoned to appear in court or in respect of which an investigation with a view to institute criminal proceedings is being conducted against him or her.

[Para. (a) substituted by s. 9 (e) of Act No. 24 of 1999.]

(b) No liability based on a breach of an obligation as to secrecy or any restriction on the disclosure of information, whether imposed by any law, the common law or any agreement, shall arise from a disclosure of any information in compliance with any obligation imposed by this section.

(6) A person who is a party to a transaction in respect of which he or she forms a suspicion which in his or her opinion should be reported under subsection (1), may continue with that transaction and must ensure that all records relating to that transaction are kept and that all reasonable steps are taken to discharge the obligation under this section.

(7) Any person who fails to comply with an obligation contemplated in this section shall be guilty of an offence.

7A. Defence.--If a person is charged with negligently committing an offence under section 2 (1) (a) or (b), 4, 5 or 6, that person may raise as a defence the fact that he or she had reported a suspicion in terms of section 7.

[S. 7A inserted by s. 10 of Act No. 24 of 1999.]

8. Penalties.--(1) Any person convicted of an offence contemplated in section 4, 5 or 6 shall be liable to a fine not exceeding R100 million, or to imprisonment for a period not exceeding 30 years.

(2) Any person convicted of an offence contemplated in section 7 (7), shall be liable to a fine, or to imprisonment for a period not exceeding 15 years.

CHAPTER 4
OFFENCES RELATING TO CRIMINAL GANG ACTIVITIES

9. Gang related offences.--(1) Any person who actively participates in or is a member of a criminal gang and who--

1. wilfully aids and abets any criminal activity committed for the benefit of, at the direction of, or in association with any criminal gang;
2. threatens to commit, bring about or perform any act of violence or any criminal activity by a criminal gang or with the assistance of a criminal gang; or
3. threatens any specific person or persons in general, with retaliation in any manner or by any means whatsoever, in response to any act or alleged act of violence,

shall be guilty of an offence.

(2) Any person who--

1. performs any act which is aimed at causing, bringing about, promoting or contributing towards a pattern of criminal gang activity;
2. incites, instigates, commands, aids, advises, encourages or procures any other person to commit, bring about, perform or participate in a pattern of criminal gang activity; or
3. intentionally causes, encourages, recruits, incites, instigates, commands, aids or advises another person to join a criminal gang,

shall be guilty of an offence.

[Sub-s. (2) amended by s. 11 of Act No. 24 of 1999.]

10. Penalties.--(1) Any person convicted of an offence contemplated in--

1. section 9 (1) or (2) (a) shall be liable to a fine, or to imprisonment for a period not exceeding six years;
2. section 9 (2) (b) or (c), shall be liable to a fine, or to imprisonment for a period not exceeding three years;
3. section 9 (1) or (2) (a) and if the offence was committed under circumstances referred to in subsection (2) shall be liable to a fine, or to imprisonment for a period not exceeding eight years;
4. section 9 (2) (b) or (c), and if the offence was committed under circumstances referred to in subsection (2) shall be liable to a fine or to imprisonment for a period not exceeding five years.

(2) If the offence contemplated in section 9 is committed on the premises or grounds of, or within 500 metres of a public or private school, or any other educational institution, during hours in which the facility is open for classes or school related programmes or when minors are using the facility, such fact shall be regarded as an aggravating circumstance.

[Sub-s. (2) substituted by s. 12 of Act No. 24 of 1999.]

(3) If a court, after having convicted an accused of any offence, other than an offence contemplated in this Chapter, finds that the accused was a member of a criminal gang at the time of the commission of the offence, such finding shall be regarded as an aggravating circumstance for sentencing purposes.

[Sub-s. (3) substituted by s. 12 of Act No. 24 of 1999.]

11. Interpretation of member of criminal gang.--In considering whether a person is a member of a criminal gang for purposes of this Chapter the court may have regard to the following factors, namely that such person--

1. admits to criminal gang membership;
2. is identified as a member of a criminal gang by a parent or guardian;
3. resides in or frequents a particular criminal gang's area and adopts their style of dress, their use of hand signs, language or their tattoos, and associates with known members of a criminal gang;
4. has been arrested more than once in the company of identified members of a criminal gang for offences which are consistent with usual criminal gang activities; [Para. (d) amended by s. 13 (b) of Act No. 24 of 1999.]
5. is identified as a member of a criminal gang by physical evidence such as photographs or other documentation.

12. Definitions and interpretation of Chapter.--(1) In this Chapter, unless the context indicates otherwise--

"affected gift" means any gift--

1. made by the defendant concerned not more than seven years before the fixed date; or
2. made by the defendant concerned at any time, if it was a gift--
1. of property received by that defendant in connection with an offence committed by him or her or any other person; or
2. of property, or any part thereof, which directly or indirectly represented in that defendant's hands property received by him or her in that connection, whether any such gift was made before or after the commencement of this Act;

"confiscation order" means an order referred to in section 18 (1);

"defendant" means a person against whom a prosecution for an offence has been instituted, irrespective of whether he or she has been convicted or not, and includes a person referred to in section 25 (1) (b);

"fixed date", in relation to a defendant--

1. if a prosecution for an offence has been instituted against the defendant, means the date on which such prosecution has been instituted; or
2. if a restraint order has been made against the defendant, means the date of such restraint order,

whichever is the earlier date;

"realisable property" means property referred to in section 14;

"restraint order" means an order referred to in section 26 (1).

(2) In this Chapter, except where it is inconsistent with the context or clearly inappropriate, any reference--

1. to a person who holds property shall be construed as a reference to a person who has any interest in the property, and--
1. if the estate of such person has been sequestrated, also to the executor of his or her insolvent estate; or
2. if such person is a company or other juristic person which is being wound up, also to the liquidator thereof;
2. to a person who transfers property to any other person shall be construed as a reference to a person who transfers or grants to any other person any interest in the property;
3. to anything received in connection with an offence shall be construed as a reference also to anything received both in that connection and in some other connection.

(3) For the purposes of this Chapter, a person has benefited from unlawful activities if he or she has at any time, whether before or after the commencement of this Act, received or retained any proceeds of unlawful activities.

[Sub-s. (3) substituted by s. 14 (d) of Act No. 24 of 1999.]

13. Proceedings are civil, not criminal.--(1) For the purposes of this Chapter proceedings on application for a confiscation order or a restraint order are civil proceedings, and are not criminal proceedings.

(2) The rules of evidence applicable in civil proceedings apply to proceedings on application for a confiscation order or a restraint order.

(3) No rule of evidence applicable only in criminal proceedings shall apply to proceedings on application for a confiscation order or restraint order.

(4) No rule of construction applicable only in criminal proceedings shall apply to proceedings on application for a confiscation order or restraint order.

(5) Any question of fact to be decided by a court in any proceedings in respect of an application contemplated in this Chapter shall be decided on a balance of probabilities.

14. Realisable property.--(1) Subject to the provisions of subsection (2), the following property shall be realisable in terms of this Chapter, namely--

1. any property held by the defendant concerned; and
2. any property held by a person to whom that defendant has directly or indirectly made any affected gift.

(2) Property shall not be realisable property if a declaration of forfeiture is in force in respect thereof.

15. Value of property.--(1) For the purposes of this Chapter, the value of property, other than money, in relation to any person holding the property, shall be--

1. where any other person holds an interest in the property--
1. the market value of the property; less
2. the amount required to discharge any encumbrance on the property; and
2. where no other person holds an interest in the property, the market value of the property.

(2) Notwithstanding the provisions of subsection (1), any reference in this Chapter to the value at a particular time of a payment or reward, shall be construed as a reference to--

1. the value of the payment or reward at the time when the recipient received it, as adjusted to take into account subsequent fluctuations in the value of money; or
2. where subsection (3) applies, the value mentioned in that subsection, whichever is the greater value.

(3) If at the particular time referred to in subsection (2) the recipient holds--

1. the property, other than cash, which he or she received, the value concerned shall be the value of the property at the particular time; or
2. property which directly or indirectly represents in his or her hands the property which he or she received, the value concerned shall be the value of the property, in so far as it represents the property which he or she received, at the relevant time. [Sub-s. (3) substituted by s. 15 of Act No. 24 of 1999.]

16. Gifts.--(1) For the purposes of this Chapter, a defendant shall be deemed to have made a gift if he or she has transferred any property to any other person directly or indirectly for a consideration the value of which is significantly less than the value of the consideration supplied by the defendant.

(2) For the purposes of section 20 (2) the gift which a defendant is deemed to have made shall consist of that share in the property transferred by the defendant which is equal to the difference between the value of that property as a whole and the consideration received by the defendant in return.

17. Conclusion of proceedings against defendant.--For the purposes of this Chapter, the proceedings contemplated in terms of this Chapter against a defendant shall be concluded when--

1. the defendant is acquitted or found not guilty of an offence;
2. subject to section 18 (2), the court convicting the defendant of an offence, sentences the defendant without making a confiscation order against him or her;
3. the conviction in respect of an offence is set aside on review or appeal; or
4. the defendant satisfies the confiscation order made against him or her.

18. Confiscation orders.--(1) Whenever a defendant is convicted of an offence the court convicting the defendant may, on the application of the public prosecutor, enquire into any benefit which the defendant may have derived from--

1. that offence;
2. any other offence of which the defendant has been convicted at the same trial; and
3. any criminal activity which the court finds to be sufficiently related to those offences,

and, if the court finds that the defendant has so benefited, the court may, in addition to any punishment which it may impose in respect of the offence, make an order against the defendant for the payment to the State of any amount it considers appropriate and the court may make any further orders as it may deem fit to ensure the effectiveness and fairness of that order.

(2) The amount which a court may order the defendant to pay to the State under subsection (1)--

1. shall not exceed the value of the defendant's proceeds of the offences or related criminal activities referred to in that subsection, as determined by the court in accordance with the provisions of this Chapter; or
2. if the court is satisfied that the amount which might be realised as contemplated in section 20 (1) is less than the value referred to in paragraph (a), shall not exceed an amount which in the opinion of the court might be so realised.

(3) A court convicting a defendant may, when passing sentence, indicate that it will hold an enquiry contemplated in subsection (1) at a later stage if--

1. it is satisfied that such enquiry will unreasonably delay the proceedings in sentencing the defendant; or
2. the public prosecutor applies to the court to first sentence the defendant and the court is satisfied that it is reasonable and justifiable to do so in the circumstances.

(4) If the judicial officer who convicted the defendant is absent or for any other reason not available, any judicial officer of the same court may consider an application referred to in subsection (1) and hold an enquiry referred to in that subsection and he or she may in such proceedings take such steps as the judicial officer who is absent or not available could lawfully have taken.

(5) No application referred to in subsection (1) shall be made without the written authority of the National Director.

(6) A court before which proceedings under this section are pending, may--

1. in considering an application under subsection (1)--
1. refer to the evidence and proceedings at the trial;
2. hear such further oral evidence as the court may deem fit;
3. direct the public prosecutor to tender to the court a statement referred to in section 21 (1) (a); and
4. direct a defendant to tender to the court a statement referred to in subsection (3) (a) of that section;
2. subject to subsection (1) (b) or (3) (b) of section 21, adjourn such proceedings to any day on such conditions not inconsistent with a provision of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), as the court may deem fit.

19. Value of proceeds of unlawful activities.--(1) Subject to the provisions of subsection (2), the value of a defendant's proceeds of unlawful activities shall be the sum of the values of the property, services, advantages, benefits or rewards received, retained or derived by him or her at any time, whether before or after the commencement of this Act, in connection with the unlawful activity carried on by him or her or any other person. [Sub-s. (1) substituted by s. 16 (a) of Act No. 24 of 1999.]

(2) In determining the value of a defendant's proceeds of unlawful activities the court shall--

1. where it has made a declaration of forfeiture or where a declaration of forfeiture has previously been made in respect of property which is proved to the satisfaction of the court--
1. to have been the property which the defendant received in connection with the criminal activity carried on by him or her or any other person; or
2. to have been property which directly or indirectly represented in the defendant's hands the property which he or she received in that connection,
   leave the property out of account;
2. where a confiscation order has previously been made against the defendant leave out of account those proceeds of unlawful activities which are proved to the satisfaction of the court to have been taken into account in determining the amount to be recovered under that confiscation order.

20. Amounts which might be realised.--(1) For the purposes of section 18 (2) (b) or 21 (3) (a), the amount which might be realised at the time of the making of a confiscation order against a defendant shall be the amount equal to the sum of--

1. the values at that time of all realisable property held by the defendant; and
2. the values at that time of all affected gifts made by the defendant,

less the sum of all obligations, if any, of the defendant having priority and which the court may recognise for this purpose. [Sub-s. (1) amended by s. 17 (a) of Act No. 24 of 1999.]

(2) Notwithstanding the provisions of section 15 (1) but subject to the provisions of section 16 (2), the value of an affected gift at the time of the making of the relevant confiscation order shall be--

1. the value of the affected gift at the time when the recipient received it, as adjusted to take into account subsequent fluctuations in the value of money; or
2. where subsection (3) applies, the value mentioned in that subsection,

whichever is the greater value.

(3) If at the time of the making of the relevant confiscation order the recipient holds--

1. the property, other than cash, which he or she received, the value concerned shall be the value of the property at that time; or
2. the property which directly or indirectly represents in his or her hands the property which he or she received, the value concerned shall be the value of the property, in so far as it represents the property which he or she received, at the time.

(4) For the purposes of subsection (1), an obligation has priority at the time of the making of the relevant confiscation order--

1. if it is an obligation of the defendant, where he or she has been convicted by a court of any offence--
1. to pay a fine imposed before that time by the court; or
2. to pay any other amount under any resultant order made before that time by the court;
2. if it is an obligation which--
1. if the estate of the defendant had at that time been sequestrated; or
2. where the defendant is a company or other juristic person, if such company or juristic person is at that time being wound up,

would be payable in pursuance of any secured or preferent claim against the insolvent estate or against such company or juristic person, as the case may be.

(5) A court shall not determine the amounts which might be realised as contemplated in subsection (1) unless it has afforded all persons holding any interest in the property concerned an opportunity to make representations to it in connection with the realisation of that property.

21. Statements relating to proceeds of unlawful activities.--(1)

1. The public prosecutor may or, if so directed by the court, shall tender to the court a statement in writing under oath or affirmation by him or her or any other person in connection with any matter which is being enquired into by the court under section 18 (1), or which relates to the determination of the value of a defendant's proceeds of unlawful activities.
2. A copy of such statement shall be served on the defendant at least 14 days before the date on which that statement is to be tendered to the court.

(2)

1. The defendant may dispute the correctness of any allegation contained in a statement referred to in subsection (1) (a), and if the defendant does so dispute the correctness of any such allegation, he or she shall state the grounds on which he or she relies.
2. In so far as the defendant does not dispute the correctness of any allegation contained in such statement, that allegation shall be deemed to be conclusive proof of the matter to which it relates.

(3)

1. A defendant may or, if so directed by the court, shall tender to the court a statement in writing under oath or affirmation by him or her or by any other person in connection with any matter which relates to the determination of the amount which might be realised as contemplated in section 20 (1).
2. A copy of such statement shall be served on the public prosecutor at least 14 days before the date on which that statement is to be tendered to the court.

(4)

1. The public prosecutor may admit the correctness of any allegation contained in a statement referred to in subsection (3) (a).
2. In so far as the public prosecutor admits the correctness of any allegation contained in such statement, that allegation shall be deemed to be conclusive proof of the matter to which it relates.

22. Evidence relating to proceeds of unlawful activities.--(1) For the purposes of determining whether a defendant has derived a benefit in an enquiry under section 18 (1), if it is found that the defendant did not at the fixed date, or since the beginning of a period of seven years before the fixed date, have legitimate sources of income sufficient to justify the interests in any property that the defendant holds, the court shall accept this fact as prima facie evidence that such interests form part of such a benefit.

(2) For the purposes of an enquiry under section 18 (1), if it is found that a court had ordered the defendant to disclose any facts under section 26 (7) and that the defendant had without sufficient cause failed to disclose such facts or had, after being so ordered, furnished false information, knowing such information to be false or not believing it to be true, the court shall accept these facts as prima facie evidence that any property to which the information relates--

1. forms part of the defendant's benefit, in determining whether he or she has derived a benefit from an offence; or
2. is held by the defendant as an advantage, payment, service or reward in connection with the offences or related criminal activities referred to in section 18 (1).

(3) For the purposes of determining the value of a defendant's proceeds of unlawful activities in an enquiry under section 18 (1)--

1. if the court finds that he or she has benefited from an offence and that--
1. he or she held property at any time at, or since, his or her conviction; or
2. property was transferred to him or her at any time since the beginning of a period of seven years before the fixed date,

the court shall accept these facts as prima facie evidence that the property was received by him or her at the earliest time at which he or she held it, as an advantage, payment, service or reward in connection with the offences or related criminal activities referred to in section 18 (1);

2. if the court finds that he or she has benefited from an offence and that expenditure had been incurred by him or her since the beginning of the period contemplated in paragraph (a), the court shall accept these facts as prima facie evidence that any such expenditure was met out of the advantages, payments, services or rewards, including any property received by him or her in connection with the offences or related criminal activities referred to in section 18 (1) committed by him or her. [Sub-s. (3) substituted by s. 18 (c) of Act No. 24 of 1999.]

(4) For the purpose of determining the value of any property in an enquiry under section 18 (1), if the court finds that the defendant received property at any time as an advantage, payment, service or reward in connection with the offences or related criminal activities referred to in that subsection committed by him or her or by any other person the court shall accept this fact as prima facie evidence that he or she received that property free of any other interest therein.

23. Effect of confiscation orders.--(1) A confiscation order made--

1. by a magistrate's court, other than a regional court, shall have the effect of a civil judgment of that court;
2. by a regional court shall have the effect of a civil judgment of the magistrate's court of the district in which the relevant trial took place.

(2) Where a High Court makes a confiscation order--

1. the confiscation order shall have the effect of a civil judgment of that court; or
2. the presiding judge may direct the registrar of that court to forward a certified copy of the confiscation order to the clerk of the magistrate's court designated by the presiding judge or, if no such court is designated, to the clerk of the magistrate's court within the area of jurisdiction of which the offence concerned was committed, and, on receipt of the said copy of the confiscation order the clerk of the magistrate's court concerned shall register the confiscation order whereupon it shall have the effect of a civil judgment of that magistrate's court.

24. Procedure where person absconds or dies.--(1) If a court is satisfied that--

1. a person had been charged with an offence;
2. a person had been convicted of any offence;
3. a restraint order had been made against a person; or
4. there is sufficient evidence for putting a person on trial for an offence;

1. a warrant for his or her arrest had been issued and that the attendance of that person in court could not be secured after all reasonable steps were taken to execute that warrant;
2. the proceedings against him or her cannot be resumed within a period of six months due to his or her continued absence; and
3. there are reasonable grounds to believe that a confiscation order would have been made against him or her were it not for his or her continued absence,

the court may, on the application by the National Director, enquire into any benefit the person may have derived from that offence.

(2)

1. (Whenever a defendant who has been convicted of an offence dies before a confiscation order is made, the court may, on the application by the National Director, enquire into any benefit the person may have derived from that offence if the court is satisfied that there are reasonable grounds to believe that a confiscation order would have been made against him or her were it not for his or her death.
2. The executor of the estate of the deceased shall be entitled to appear before the court and make representations for purposes of the enquiry referred to in paragraph (a).

(3) The court conducting an enquiry under this section may--

1. if the court finds that the person referred to in subsection (1) or (2) has so benefited, make a confiscation order and the provisions of this Part shall, with the necessary ch