15 Forfeiture, Confiscation and Disqualifications

15.1 While regard should be had to the rights of any innocent party who may be affected, orders should be sought by the prosecutor, where appropriate, to ensure that:

an offender does not profit from his or her criminal conduct;
property used in the commission of an offence is subject to forfeiture.

15.2 Confiscation is an issue to be considered and advised upon from the outset in all cases. It should not be regarded as a mere optional addition to sentence proceedings or to the conduct of a prosecution. The Criminal Justice Act, 1994 specifically provides for confiscation following conviction and applies to both drug trafficking and non-drug trafficking offences. Section 4 of that Act, as amended by section 25 of the Criminal Justice Act, 1999, requires the court to determine whether the accused has benefited from drug trafficking in cases where the accused has been convicted and sentenced (or otherwise dealt with in respect of a drug trafficking offence). The legislation also provides in section 9 for the Director to apply, in other cases, to the court to determine whether the accused has benefited from the offence for which he was convicted.

15.3 The amount to be confiscated will be:

in the case of a drug trafficking offence, the amount assessed by the court to be the value of the defendant's proceeds of drug trafficking;
In the case of a non-drug trafficking offence, subject to the provisions in the legislation, such amount as the court thinks fit.

15.4 The standard of proof required to determine these questions is the lower standard applicable to civil proceedings, i.e. the balance of probabilities.

15.5 That legislation also provides for restraining and ancillary orders which preserve property for possible future confiscation following conviction as well as for variation orders. The Director's Office should be consulted promptly if such orders may be appropriate. The question of whether or not a confiscation application might be appropriate should be addressed by the investigator when submitting the file and should be considered by the professional officer dealing with the case when a prosecution is being directed.

15.6 Provision is also made in other legislation for forfeiture and for revocation of, or disbarrment from holding licences and permits in given circumstances. The most common is disqualification from holding a driving licence. The following list of statutory provisions, while not exhaustive, is relevant and should be borne in mind by the prosecutor:

section 23 Firearms Act, 1925 - certain firearms may be forfeit where a person is convicted of a firearms or certain other offences;
section 28 Intoxicating Liquor Act, 1927 - the licence may be forfeit;
section 10 Censorship of Publications Act, 1929 - prohibited publications may be confiscated;
section 76 Wildlife Act, 1976, as amended by the Wildlife Act, 2000 - vehicles and firearms used to commit an offence may be forfeit;
section 2 Offences Against the State (Amendment) Act, 1985 - monies believed to belong to unlawful organisations lodged in a bank may be seized;
section 28 Video Recordings Act, 1989 - tapes may be forfeit;
section 13 Firearms and Offensive Weapons Act, 1990 - weapons and other articles used in the commission of an offence may be seized;
section 6 Criminal Justice Act, 1993 - a court may order compensation to be paid to victims as well as imposing a penalty;
sections 38 and 39 Criminal Justice Act, 1994 - cash believed to be imported or exported from the State and believed to be associated with drug trafficking may be seized and forfeit;
section 25 National Beef Assurance Scheme Act, 2000 - things used in the commission of an offence under the Act may be forfeit;
section 145 and 264 Copyright and Related Matters Act, 2000 - infringing copies of books, articles and recordings, etc. may be forfeited
to the copyright owner or destroyed;
section 4 Illegal Immigrants (Trafficking) Act, 2000 - vehicles may be seized;
section 97 Planning and Development Act, 2000 - where certain certificates conferring financial benefits are obtained fraudulently the benefit may be forfeit;
section 7 Diseases of Animals Act, 2001 - where the offence relates to the spread of brucellosis or tuberculosis in animals, vehicles and premises involved may be forfeit;
section 72 Industrial Design Act, 2001 - where a person is unlawfully in possession of an industrial design, infringing products or articles may be forfeited to the registered proprietor or destroyed;
section 15 and section 50 Criminal Justice (Theft and Fraud Offences) Act, 2001 - confiscation of tools used for commission of burglary or other offences;
section 41 Road Traffic Act, 1994, as amended - seizure and disposal of vehicles while driving without licence, tax or insurance;
section 17 Offences Against the State (Amendment) Act, 1998 - forfeiture in cases of explosives and firearms offences;
seizing of vehicles used for smuggling - section 6 Customs and Excise (Miscellaneous Provisions) Act, 1988.

The above list is not comprehensive. It is intended only as an aide memoire and reference should be had to the specific legislation in each case.