n South African Journal of Criminal Justice - Legal expenses POCA clauses : a loophole to make crime pay?




'If the criminal offender can expend the proceeds of crime without limitation to challenge the forfeiture action and with the knowledge that when the case is lost, whatever is left will be forfeited to the state, the offender has no incentive to do anything other than to fight the forfeiture until all of the restrained funds have been exhausted'

The Prevention of Organised Crime Act 121 of 1998 (POCA) aims to dislodge the fruits of criminal activity from the hands of criminals and their cohorts thus endeavouring to take the profit out of crime. Simultaneously however, certain provisions of POCA allow alleged criminals to access forfeited assets in order to cover their legal expenses. These provisions have to be reconciled with, on the one hand, the specific restitutionary rights of victims of crime and, on the other hand, the general interests of the community in ensuring that crime should not pay. This article attempts to assess critically how these divergent interests have been weighed and balanced by the courts. This article shows that - by means of their asset forfeiture jurisprudence - South African (SA) courts have created distinct criteria that are to be taken into account in order to reconcile these potentially conflicting interests. This jurisprudence is analysed and the criteria that assist in resolving the apparent conflict are expounded.


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