THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA
| Prophet v NDPP | |
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| Supreme Court of Appeal -502/04 | Hearing date: 19 May 2005 |
| Judgment date: 29 September 2005 | |
Search and seizure – Forfeiture order in terms of Chapter 6 of Prevention of Organised Crime Act 121 of 1998 – application for forfeiture order – whether property instrumentality of an offence – proportionality analyses not part of first of two-stage enquiry – standard of disproportionality to be applied at second stage of enquiry – significant disproportionality required. |
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Media Summary
of Judgment |
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This media summary is intended for the benefit of the media and does not form part of the judgment of the Supreme Court of Appeal From: The Registrar, Supreme Court of Appeal The Supreme Court of Appeal today dismissed an appeal by Mr Simon Prophet against a judgment of the Cape Provincial Division in terms of which the appellant’s fixed property was declared forfeit to the state. The Director of Public Prosecutions had first launched an application in the Cape Provincial Division for a preservation of property order in terms of the provisions of the Prevention of Organised Crime Act 121 of 1988. The NDPP had alleged that the appellant’s property was an instrumentality of the offence of dealing in drugs in that a drug, methamphetamine, was manufactured there. Subsequent to obtaining a preservation of property order the NDPP applied for an order declaring the property forfeit to the state. The court held that the property had been used in the manufacturing of a drug and that it was therefore an instrumentality of an offence. The court declared the property forfeit to the state. On appeal the Supreme Court of Appeal upheld the decision of the Cape Provincial Division. Applying a proportionality analysis in evaluating the relationship between the value of the property when measured against the gravity of the offence committed, the SCA held, by a majority, that for a court to refuse to grant a forfeiture order it must be satisfied that there was significant disproportionality, which would, if the property were to be forfeited to the state, amount to an arbitrary deprivation of the property and thus be unconstitutional. In the present case the SCA found that no disproportionality had been proved to exist justifying a refusal of a forfeiture order.
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