Seizing Criminal Assets to Fight Crime National Prosecuting Authority Report to Parliament 7 April 2005 Asset Forfeiture Unit Willie Hofmeyr - Head

Major challenge Major challenge to expand its capacity sufficiently to deal with all the cases that are currently in court and where asset forfeiture can be done Estimate is about R1 to R2 billion, apart from other proceeds that can be targeted through civil forfeiture Prepared a business case to expand capacity sufficiently to deal with this over 5 years Requires expanding the budget almost ten- fold - Securing funding a massive challenge

Overall objectives 1: Testing the law to develop the law by taking test cases to court and creating the legal precedents that are necessary to allow the effective use of the law 2: Rolling out volume to build the capacity to ensure that asset forfeiture is used widely and makes a real impact in the fight against crime

CONTRIBUTE TO THE REDUCTION IN CRIME BY MAKING A SIGNIFICANT IMPACT ON CRIME IndicatorTarget: full year Actual: Year to date % of target Achieved 2003/0404/05 % of 03/04 Number of cases Seizures % 22868% Cases completed % 13697% Monetary targetsRm Seizures % % Cases completed % % Funds into CARA % % Funds to victims %

Targets Reduced target for new cases to focus on serious organised crime which required much time from key staff members Slightly below for no. of cases Slightly below on value of new seizures, 2 matters involving about R85m plea bargained without need for seizure orders With these exceeded our target for the year

Targets (cont) Above target for value of completed cases by 150% Below target for monies into CARA due to delays in completing some cases Also because much more recovered for victims In one case, some workers stand to receive over R60m in compensation

Targets 05/06 IndicatorNumber of cases: 2005 / 06 Monetary targets: 2005/06 Number of cases New seizures210R250m Cases completed160R100m Funds into CARA R70m Funds to victimsR25m

Objective: Establishing good jurisprudence Maintain overall success rate of 85% Decided on lower success rate than before Test cases still important – imply quality of work, conservative case selection But are being able to be more aggressive where law is now clear It is vital to increase volume

Success rate in judgements Also measure success rate in cases where judgments are obtained In 4 years to April 2003, won only 44% of judgments (21 of 48) Big change in past 2 years in attitude of courts Changed dramatically in 03/04 when won 75% of judgements (23 of 30) against target of 60% 04/05 have won 64% of judgements (27 of 42) against a target of 66%

No of judgements Many issues have been clarified in about 120 judgements to date 2 CC cases, 11 SCA (6 this yr) 04/05 achieved 42 judgements against target of 30 But still many issues not settled

Cases - instrumentality Seevnarayan judgement in the SCA a year ago makes it almost impossible to act against dirty hotels Measures in place to deal with the instrumentality issue - ask Parliament to amend POCA Recent WLD decision Cole and Davis has more balanced approach – on appeal to SCA SCA also agreed to an instrumentality appeal in Prophet (a judgement to which they had referred with approval)

Other SCA cases Recently won 2 of its largest cases Rautenbach judgement significant on ch 5 Minority judgment also in favour AFU on more limited grounds In Phillips unanimously overturned a High Court decision that rescinded the restraint order on the basis of inherent jurisdiction held that only the grounds in POCA were avaialbel to rescind Won another appeal against a High Court decision that awarded Phillips personal damages against an investigator for statements made in court papers

Constitutional Court Both Rautenbach and Phillips have applied for leave to appeal Rautenbach was refused Phillips application for leave will be argued in May

Legislation A number of areas have been identified where the law should be clarified or strengthened Amendments have been prepared and submitted to DOJ We have identified a shorter list of urgent amendments Helpful if they can be processed in in the second half of the year Minister is about to publish regulations to specify the maximum legal expenses that may be paid from assets preserved ito chapter 6

Objective: National presence Has grown fairly slowly last 2 years, but increase to over 100 past year In large part our success is due to the foresight and commitment from the NDPP Offices in Cape Town, Durban, Johannesburg, Port Elizabeth, East London, Bloemfontein, Kimberley, Mmabatho This year: Polokwane, Nelspruit

Partners Have excellent relations with SAPS – about 90% of cases, 30% value DSO – about 8 % of cases, 67% value Others: NPS, SARS, SARB, FIC Have SAPS task teams in most AFU offices

Objective: targeting priority crimes Organised crime in all forms Drugs - dealers, cash and houses Serious violent crime with economic motive Serious economic crime – esp where public Corruption Precious metals Cleaning up areas: community irritants Property used to commit crime Natural resources – added later

Organised Crime For first time became involved in cases where POCA was being used effectively to target serious syndicates Work with SAPS on Quinton Marinus case in Ctn With DSO on Yield – R100m’s of platinum was smuggled from SA to UK – work with UK police Financial investigations can add real value

Drunk driving initiative With DOT Aimed at assisting Arrive Alive campaign One constitutional challenge thus far

Objective: Skilled and representative staff Proud of what we achieved in a field where skills are very specialised But more remains to be done to promote representivity of African people All staff AdvMan Designated83%72%79% Black69%60%64% African 44%49%29% Women52%50%50%

Conclusion Asset forfeiture is an important part of the war against crime ‑ it hits the crime bosses where it hurts most ‑ in the pocket In this was it helps to deter criminals But most importantly, forfeiture is a vital weapon to take the profit out of crime If we are to deal effectively with crime, it must become true “that crime does not pay”