Implementing unexplained wealth orders in South Africa – what are the options?
| DOI | https://doi.org/10.1108/JMLC-09-2022-0140 |
| Published date | 09 December 2022 |
| Date | 09 December 2022 |
| Pages | 85-98 |
| Subject Matter | Accounting & finance,Financial risk/company failure,Financial compliance/regulation,Financial crime |
| Author | Jacqui-Lyn McIntyre,Duane Aslett,Nico Buitendag |
Implementing unexplained wealth
orders in South Africa –what
are the options?
Jacqui-Lyn McIntyre and Duane Aslett
School of Accounting Sciences, North-West University,
Potchefstroom, South Africa, and
Nico Buitendag
Faculty of Law, North-West University, Potchefstroom, South Africa
Abstract
Purpose –This paper aims to focus on the use of unexplained wealth orders (UWOs) in South Africa as a civil
method to act upon lifestyle auditresults that have indicated wealth from unknown, possibly unlawful, sources.
Design/methodology/approach –This paper applied a comparativemethodology. Legislation and the
applicationof UWOs in Ireland, the UK and Australia were compared with the situation in South Africa.
Findings –It is proposed that South Africa includes UWO legislation withinits Prevention of Organised
Crime Act or be established as a separatepiece of legislation. Also, South Africa should follow both the civil
and criminalroute to target the proceeds of crime.
Originality/value –Corruption in South Africa is rampantand, without the necessary legislation, impossible
to fight. For these purposes, this paper proposes measures to be used from a civil forfeiture perspective.
Keywords Corruption, Civil confiscation, Criminal wealth, Illicit enrichment,
Non-conviction-based asset forfeiture, Unexplained wealth orders
Paper type Research paper
1. Introduction
Since the 1990s, immense focus has been placed by scholars not only on prosecuting
criminals but also on depriving them of their criminal wealth. The acquisition of money
through criminal activities is usuallyfinancially motivated (Van Jaarsveld, 2011); hence, the
common argument: If a convictionresults in a prison sentence, as well as the removal of the
proceeds, the motivation will be eliminated (Alexander, 2015, p. 36). Murray (2015, p. 42)
concurs by stating thatcriminals should not benefit from their crimes.
In the literature, different terms are used for the concept of criminal wealth: “proceeds of
crime”(Proceeds of Crime Act 2002, UK; Young, 2009); “illicit financial flows”(Goredema, 2011);
“illicit proceeds”(Kroeker, 2014); “unexplained wealth”(Rider, 2015); and “illicit enrichment”
© Jacqui-Lyn McIntyre, Duane Aslett and Nico Buitendag. Published by EmeraldPublishing Limited.
This article is published under the Creative Commons Attribution (CC BY 4.0) licence. Anyone may
reproduce, distribute, translate and create derivative works of this article (for both commercial and
non-commercial purposes), subject to full attribution to the original publication and authors. The full
terms of thislicence may be seen at http://creativecommons.org/licences/by/4.0/legalcode
The authors would like to thank Adv Marnus Steyn for his input and guidance in this study,as well as
the Workwell Research Unit at the North-West University for its support in this project, which was
completed under the sub-programme ReTORIC (Research and Teaching in Organised and Integrity Crimes).
Unexplained
wealth orders
in South Africa
85
Journalof Money Laundering
Control
Vol.26 No. 7, 2023
pp. 85-98
EmeraldPublishing Limited
1368-5201
DOI 10.1108/JMLC-09-2022-0140
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