The constitutional rights of children and the Prevention of Organised Crime Act 121 of 1998
| Published date | 01 April 2004 |
| Date | 01 April 2004 |
| DOI | https://doi.org/10.1108/13590790410809121 |
| Pages | 195-206 |
| Author | Jeanne K. Nel |
| Subject Matter | Accounting & finance |
The Constitutional Rights of Children and the
Prevention of Organised Crime Act 121 of 1998
Jeanne Y. Nel
`Children are our most valuable natural resource.'
1
Herbert Hoover
INTRODUCTION
The Constitution of the Republic of South Africa
2
recognises and protects the fundamental rights of
children. It enshrines, in particular, every child's
right to family and parental care and provides that
a child's best interests are of paramount importance
in every matter concerning the child.
3
The Bill of Rights in the Constitution contains
speci®c provisions with regard to the limitation of
human rights
4
and any law that limits a human
right in contradiction to these provisions is invalid.
5
The Prevention of Organised Crime Act
6
embodies a serious attempt by the South African
Government to eectively police and curb organised
crime, money laundering and criminal gang activities
in South Africa.
7
The Act provides inter alia for a
range of crippling ®nes and for orders such as con®s-
cation and forfeiture.
8
Can the relevant provisions of
the Act be reconciled with the rights of children
contained in the Bill of Rights? Asset forfeiture and
con®scation orders can aect the rights of third
parties in a number of ways.
9
Such orders may, for
instance, have a direct eect on the property rights
of third parties who are subject to the order. They
could also aect the ordinary creditors of the defen-
dant, including the victims of the defendant who
have civil claims for compensation against the defen-
dant, by draining the estate of the defendant and
leaving them with insucient assets against which
to levy execution.
10
Asset forfeiture and con®scation orders can also
have a more indirect eect because they may
violate the right to parental care of the dependent
young persons and children
11
of the person who is
subject to the order.
The question that arises is whether and to what
extent the constitutional rights of children are
discounted, or indeed protected, when the court
imposes forfeiture and con®scation orders upon
economic oenders. This brief paper will investigate
aspects of the protection aorded to the rights of
children
12
when such orders are made in terms of the
provisions of the POCA.
13
TERMINOLOGY
Before commenting on ®nancial penalties and their
eect on third parties, certain concepts should be
clari®ed and some perspectives are required.
Forfeiture
Forfeiture can be described as a state action through
which private property is lost to the state, without
the consent or cooperation of the owner, usually
because it is involved in crime in some way.
14
The
measure targets property that has been used in the
commission of a crime, rather than the people who
have used the property illegally. Forfeiture can be
used against assets that have been used to commit a
crime or assets that are the proceeds of crime.
15
The most striking feature of forfeiture is that its
purpose is not regulatory but acquisitive: it deter-
mines the government's title to the property against
others and for the public bene®t.
16
Traditionally,
property is forfeited because it is contraband and pos-
session thereof is illegal. In recent years, the scope of
forfeiture orders was extended in most jurisdictions
to include contraband as well as property regarded
as instrumentalities
17
and proceeds of crime.
18
This
extension increased the possibility that the forfeiture
order could aect an innocent third party.
A forfeiture order does not require a prior criminal
conviction of the property owner. It is obtained after
civil proceedings during which the state proves that
the property probably constitutes illegal contraband
or that it was probably used for an illegal purpose.
Furthermore, any property that relates back to the
date of illegal use of property, regardless of whether
it is still owned or possessed by the oender, can be
forfeited. Consequently, forfeiture can be enforced
against whoever holds or owns the aected property,
regardless of his or her involvement in or knowledge
of any crime. These principles are normally associated
with the concept of forfeiture although their
application and ambit are often limited by legislation.
Page 195
Journal of Financial Crime Ð Vol. 11 No. 2
Journal of Financial Crime
Vol.11,No. 2,2003,pp. 195 ±206
#HenryStewart Publications
ISSN 1359-0790
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