|Case No.||Lower Court Judgments||Hearing Date||Judgment Date||Majority Author||Vote|
|CCT 56/12||South Gauteng High Court (Full Bench), 8 Mar. 2012||15 Nov. 2012||19 Feb. 2013||Cameron J.||5 – 4 (and 4 separate but concurring)|
The Prevention of Organised Crime Act 121 of 1998 (“POCA“) allows the State to apply for the forfeiture of property that was used in the commission of a crime or is the proceeds of a crime under the Act. Before the final forfeiture order is granted the State may approach a Court for a “preservation order” that prevents the owner of the property from removing the assets pending the forfeiture case. The possible problem, that POCA recognizes, is that this preservation order may prevent the owner of the property from adequately providing for his living expenses or paying the legal expenses of defending the forfeiture action or the criminal charges he faces. POCA therefore provides in section 44(1)(b) that a court may allow the person holding interest in the “property subject to the preservation order” to have reasonable living and legal expenses paid for from that property. In order to qualify for such a dispensation the person must make a sworn statement of his interest in the property, and show that he cannot meet the expenses claimed out of any other property.
In this case, Mr Meir Elran had been accused of various drug-related offences and certain of his property was placed under a preservation order; he applied to have his reasonable expenses paid for out of that property. In the course of his application though, it emerged that he had obtained “income” in the form of “charitable donations” from family and friends. The National Prosecuting Authority alleged that in order to qualify for the order Mr Elran would have to disclose on oath the source and amount of this “income”, but the High Court held that POCA’s reference to “property” did not include income. The Constitutional Court will have to decide whether this is the correct interpretation.
A Majority of the Constitutional Court, in a decision authored by Cameron J. held that the High Court was incorrect. The Majority held that a person seeking living or legal expenses under POCA must make disclosure of all “assets and liabilities”, and that the gifts and loans Mr Elran says he had received where “assets and liabilities”. The Constitutional Court, therefore, ordered that the High Court’s decision be overturned, and that Mr Elran’s application for legal expenses be dismissed.
Chief Justice Mogoeng and Justices Froneman, Van der Westhuizen and Zondo concurred in Justice Camerons judgment.
Justice Jafta wrote a minority judgment in which Deputy Chief Justice Moseneke and Justices Nkabinde and Yacoob concurred.
Also, Justice Zondo wrote a separate judgment in which he concurred with the result of the Majority, and in which Chief Justice Mogoeng and Justices Cameron and Froneman joined.
We’ll update this post later to explain the minority and concurring opinions.