A note on the introduction of the nullum crimen, nulla poena sine lege or principle of legality in the South African asset forfeiture jurisprudence

by | Oct 13, 2019 | SACJ, SACJ V29 I3 2016

A note on the introduction of the nullum crimen, nulla poena sine lege or principle of legality in the South African asset forfeiture jurisprudence

Authors D Erasmus, NC Ndzengu

ISSN: 1996-2118
Affiliations: Associate Professor, Department of Criminal and Procedural Law, Faculty of Law, Nelson Mandela Metropolitan University, Port Elizabeth, South Africa and Attorney of the High Court of South Africa; Senior Deputy Director of Public Prosecutions: Asset Forfeiture Unit (AFU), Port Elizabeth and Attorney of the High Court of South Africa
Source: South African Journal of Criminal Justice, Volume 29 Issue 3, p. 247 – 272

Abstract

The Prevention of Organised Crime Act 121 of 1998 provides for both criminal and civil forfeiture regimes. In the case of criminal forfeiture, the confiscation machinery provided for may only be invoked when the ‘defendant’ is convicted of an offence. Civil forfeiture provides for forfeiture of the proceeds of and instrumentalities used in crime, but this form of forfeiture is not conviction-based and may even be invoked when there is no prosecution. The National Director of Public Prosecutions (NDPP) via appointed legal practitioners chooses in each case which asset forfeiture regime to invoke, depending on the facts of the case. The recent judgment of Ntsoko v National Director of Public Prosecutions deals with a review of the decision of the NDPP to resort to civil forfeiture, as opposed to criminal forfeiture, and an attempt to constrain the exercise of these powers in this regard. The court held that the decision of the NDPP to invoke civil, instead of criminal forfeiture, is reviewable as a consequence of the principle of legality. In this contribution it will be argued that the court in fact introduced and extended the application of the principle of legality into asset forfeiture jurisprudence. The extension of the principle of legality was applied as a constitutional imperative or an interpretive tool to review the decision of the NDPP.

Corporate accountability in South Africa: Sharpening the role of criminal law

by | Oct 13, 2019 | SACJ, SACJ V29 I3 2016

Corporate accountability in South Africa: Sharpening the role of criminal law

Authors John Paul Ongeso

ISSN: 1996-2118
Affiliations: Post-doctoral Research Fellow at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), University of Johannesburg, South Africa
Source: South African Journal of Criminal Justice, Volume 29 Issue 3, p. 225 – 246

Abstract

South Africa’s Criminal Procedure Act 51 of 1977 adopts a derivative model of establishing corporate liability. This article argues that this model has a number of limitations that render it ineffective for corporate accountability for serious human rights violations and crimes. It considers an alternative model of non-derivative criminal liability and discusses how this may apply to the South African context through its inclusion in the Act. This article also draws from legislative schemes in the United Kingdom and Australia that have incorporated non-derivative models for corporate criminal liability.