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The Constitutional application of the Prevention of Organised Crime Act 121 of 1998
Chapter 6 of the Prevention of Organised Crime Act 121 of 1998 (‘POCA') presents a means for forfeiture of property to the state which was either instrumental to an offence, or the proceeds of unlawful activity, without necessarily proving criminal wrongdoing beyond reasonable doubt. At the advent o...
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| Format: | Thesis |
| Language: | English |
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Department of Public Law
2023
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| _version_ | 1867613234624724992 |
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| access_status_str | Open Access |
| author | Prinsloo, Benjamin |
| author2 | Omar, Jameelah |
| author_browse | Omar, Jameelah Prinsloo, Benjamin |
| author_facet | Omar, Jameelah Prinsloo, Benjamin |
| author_sort | Prinsloo, Benjamin |
| collection | Thesis |
| description | Chapter 6 of the Prevention of Organised Crime Act 121 of 1998 (‘POCA') presents a means for forfeiture of property to the state which was either instrumental to an offence, or the proceeds of unlawful activity, without necessarily proving criminal wrongdoing beyond reasonable doubt. At the advent of POCA the consensus amongst legal commentators was that it could be constitutional, provided that courts remain alive to statutory and common law safeguards to prevent the unconstitutional use of POCA by the state. Over twenty years since POCA's enactment, it appears from a review of its case law that it still sits on the precipice of unconstitutionality. This thesis identifies the key constitutional issues which have arisen in the application of Chapter 6 of POCA. The premise which underlies Chapter 6 of POCA, that a criminal wrongdoer should not be allowed to benefit from their crime, cannot be faulted. What appears from the enquiry that follows is that POCA's use is wider than this premise. That is, POCA's application has gone beyond simply preventing criminals from benefitting from their crimes. In this regard, victims of crime and innocent parties are being subjected to forfeiture in terms of POCA and POCA is being used as a means of civil recovery (even where there is not criminal wrongdoing). What makes this wide use particularly problematic is the fact that POCA makes various inroads into certain Constitutional rights, as are discussed below, on the justification that these limitations of rights are in the pursuance of fighting crime. When these rights are limited for purposes other than fighting crime, the justification falls away. Given POCA's wide use in this regard, its interpretation and application in the future needs to be more narrowly interpreted and constrained, to ensure that individual rights are not unjustifiably infringed. |
| format | Thesis |
| id | oai:open.uct.ac.za:11427/37763 |
| institution | University of Cape Town (South Africa) |
| language | eng |
| last_indexed | 2026-06-10T12:32:54.720Z |
| license_str | Not specified — see source repository |
| provenance_str_mv | Harvested via OAI-PMH from UCTD — University of Cape Town Open Access Repository |
| publishDate | 2023 |
| publishDateRange | 2023 |
| publishDateSort | 2023 |
| publisher | Department of Public Law |
| publisherStr | Department of Public Law |
| record_format | dspace |
| source_str | UCTD — University of Cape Town Open Access Repository |
| spelling | oai:open.uct.ac.za:11427/37763 The Constitutional application of the Prevention of Organised Crime Act 121 of 1998 Prinsloo, Benjamin Omar, Jameelah Public Law Chapter 6 of the Prevention of Organised Crime Act 121 of 1998 (‘POCA') presents a means for forfeiture of property to the state which was either instrumental to an offence, or the proceeds of unlawful activity, without necessarily proving criminal wrongdoing beyond reasonable doubt. At the advent of POCA the consensus amongst legal commentators was that it could be constitutional, provided that courts remain alive to statutory and common law safeguards to prevent the unconstitutional use of POCA by the state. Over twenty years since POCA's enactment, it appears from a review of its case law that it still sits on the precipice of unconstitutionality. This thesis identifies the key constitutional issues which have arisen in the application of Chapter 6 of POCA. The premise which underlies Chapter 6 of POCA, that a criminal wrongdoer should not be allowed to benefit from their crime, cannot be faulted. What appears from the enquiry that follows is that POCA's use is wider than this premise. That is, POCA's application has gone beyond simply preventing criminals from benefitting from their crimes. In this regard, victims of crime and innocent parties are being subjected to forfeiture in terms of POCA and POCA is being used as a means of civil recovery (even where there is not criminal wrongdoing). What makes this wide use particularly problematic is the fact that POCA makes various inroads into certain Constitutional rights, as are discussed below, on the justification that these limitations of rights are in the pursuance of fighting crime. When these rights are limited for purposes other than fighting crime, the justification falls away. Given POCA's wide use in this regard, its interpretation and application in the future needs to be more narrowly interpreted and constrained, to ensure that individual rights are not unjustifiably infringed. 2023-04-18T09:00:47Z 2023-04-18T09:00:47Z 2022 2023-04-14T10:15:26Z Master Thesis Masters LLM http://hdl.handle.net/11427/37763 eng application/pdf Department of Public Law Faculty of Law |
| spellingShingle | Public Law Prinsloo, Benjamin The Constitutional application of the Prevention of Organised Crime Act 121 of 1998 |
| thesis_degree_str | Master's |
| title | The Constitutional application of the Prevention of Organised Crime Act 121 of 1998 |
| title_full | The Constitutional application of the Prevention of Organised Crime Act 121 of 1998 |
| title_fullStr | The Constitutional application of the Prevention of Organised Crime Act 121 of 1998 |
| title_full_unstemmed | The Constitutional application of the Prevention of Organised Crime Act 121 of 1998 |
| title_short | The Constitutional application of the Prevention of Organised Crime Act 121 of 1998 |
| title_sort | constitutional application of the prevention of organised crime act 121 of 1998 |
| topic | Public Law |
| url | http://hdl.handle.net/11427/37763 |
| work_keys_str_mv | AT prinsloobenjamin theconstitutionalapplicationofthepreventionoforganisedcrimeact121of1998 AT prinsloobenjamin constitutionalapplicationofthepreventionoforganisedcrimeact121of1998 |