"SA’s Constitutional Safeguards are in Tatters" 

by Professor Robert W Vivian

Published by the Free Market Foundation 10th September 2009

Governments and rulers that violate citizens’ fundamental rights to property prompt civil uprisings and revolutions. Famous codes including Magna Carta, the English Bill of Rights, the Constitution and Federal Bill of Rights of the United States , and the (French) Declaration of the Rights of Man were written to protect citizens’ rights. Nowadays government powers are often limited by constitution and independent judiciary. In a string of recent court cases, Simon Prophet was acquitted of making drugs at home but the Asset Forfeiture Unit (AFU) seized his home using the Prevention of Organised Crime Act (POCA). Both Supreme Court of Appeal (SCA) and Constitutional Court (CC) rejected his appeals and trampled our precious constitutional safeguards underfoot.

Due Legal process

Magna Carta guaranteed no deprivation of life, liberty or property except by due process of law. POCA ignores due process to say assets (not people) commit ‘crimes’, like Darius the Great (492BC) having the sea flogged when his fleet foundered in a storm. Saying assets commit civil offences rather than crimes, AFU use criminal laws to effect civil forfeiture.

First AFU applies secretly to a judge for a ‘preservation order’, thus bypassing the public trial required by due process. The judge must decide given a one-sided view instead of (due process) hearing both sides. He relies on an affidavit without seeing (due process) evidence. Unsurprisingly a judge declared the whole process unconstitutional when AFU first approached him to approve taking private property in this extraordinary manner.

Then AFU can approach the court again for a ‘forfeiture order’. If anyone else such as a bank has an interest in the property, they must file an answering affidavit with the court – another process new to SA civil and criminal law. POCA violates most due process requirements of constitutional law.

Right to silence

Medieval witch trials illustrate why constitutions now enshrine the right to remain silent. Old people were killed as witches after court conviction based on ‘evidence’ of their ‘confession’ under torture. More torture, more witches.

POCA specifically seeks to deprive an accused of the right to silence, forcing either a replying affidavit or loss of AFU-seized property. No evidence was presented in Prophet’s case of organised crime including him. In his forced reply he acknowledged organised crime as a problem, then the court used his own words to prove its existence!

Double jeopardy

The constitution says nobody may be tried twice for the same offence. POCA violates this double-jeopardy rule. Preservation and forfeiture orders required courts to find that Prophet had committed a criminal offence. Acquitted once, he was then tried again twice and concurrently for the same offence – two simultaneous extra AFU bites at the cherry! SCA even noted SA’s uniqueness with POCA taking assets without a criminal conviction.

Evidence

Many important age-old rules require evidence presented orally in court, forbidding irrelevant and hearsay evidence. Unprecedented in jurisprudential history, legally no evidence was placed before the courts in the Prophet cases, which were apparently resolved based solely on affidavits. So several oddities emerge from the judgements. Without admitting the evidence record from the criminal trial, SCA concluded that it was dismissed on a technicality after merely being advised of this from the bar. Later the CC built on this technical aspect, so both courts reached important conclusions on aspects they refused to admit as evidence!

And courts accepted the existence of organised crime in South Africa based purely on the legally-irrelevant ‘evidence’ of a concession in Prophet’s affidavit. Why would Prophet, poor, unemployed and not part of any known organised gang, have knowledge, other than hearsay, of organised crime in SA? POCA violates rules of evidence.

Punishment fitting the crime

Politicians often deal with opponents by taking all their private assets as a ‘fine’ for some trumped-up ‘criminal’ charge. The (1800 BC) Code of Hammurabi’s Lex Talionis that the punishment must fit the crime appears in every major constitutional code worldwide, to ensure a strict link between crime and punishment. So a law that creates a crime also specifies its maximum punishment. AFU unconstitutionally seeks to seize private assets exceeding stipulated punishments. Violating the principle also creates inequality before the law, as people in identical circumstances are treated vastly differently by POCA. Layabouts without assets walk free while a worker loses his home!

Seizure without trial

Constitutions usually oblige judges to guarantee fair trial but Prophet’s home was taken without a trial. Considering all the violated constitutional safeguards, the Prophet case was no trial and produced further strange anomalies. One purpose of a trial is to let the accused present evidence, but Prophet was still trying as late as the CC case to admit the record of the criminal trial, which was refused.

Conversely SCA wanted Prophet to show evidence why he shouldn’t lose his house. But when, since there was no trial should he do this? In his replying application, before even appearing in court? And CC wished Prophet had correctly formulated the constitutional issues. But when was he supposed to do this – in his replying affidavit? With trial court procedures ignored, no wonder such anomalies appear in judgments! POCA and the courts ensured that Prophet got no trial, fair or otherwise, thus most grievously breaching the constitution.

Presumption of innocence and trial by media

Did so many violations prompt public outcry or at least protests from legal bodies? On the contrary, editorials in two leading newspapers supported seizing private assets. A universal theme said Prophet’s acquittal was on a technicality so he deserved to lose his assets!

When Hitler dissolved parliament and gave himself all constitutional power he released statement after statement, dutifully repeated by the press, about evidence he had of a communist plot. No such evidence existed. Senator Joseph McCarthy in America made similar unsubstantiated claims. AFU clearly manipulates the SA press like that. While searching Prophet’s home, the press were let in, but who notified them? Certainly not Prophet! POCA has led to disregarding the constitutional presumption of innocence.

Conclusion

In the Prophet cases various constitutional principles were breached - safeguards which evolved over centuries to protect us from the state; and our rights to life, liberty and property. Now it has been announced that POCA applies to all alleged crimes, even mere traffic offences. Clearly little remains of South Africa’s constitutional safeguards. They are in tatters and our nation is again in jeopardy!

The above article may be republished without prior consent but with acknowledgement to the author, Professor Robert Vivian, University of the Witwatersrand, Johannesburg, South Africa.