Prevention of Organised Crime Act

10. Penalties 11. Interpretation of member of criminal gang CHAPTER j PROCEEDS OF UNLAWFUL ACTIVITIES PART 1 APPLICATION OF CHAPTER 12 Definitions and interpretation of Chapter 4 No. 19553 GOVERNMENT GHE~. 4 Decembr 1998 Act No. 121, 1998 Prevention OF ORGANISED CRIME ACT. 1998 13. 14. 15. 16. 17. 18. 19, 20. 21, ~p, 23, 24. 25, 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. Proceedings are civil, not criminal Realizable property Value of property Gifts Conclusion of proceedings against defendant PART 2 CONFISCATION ORDERS Confiscation orders Value of proceeds of unlawful activities Amounts which might be realised Statements relating to proceeds of unlawful activities Evidence relating to proceeds of unlawful activities Effect of confiscation orders Procedure where person absconds or dies PART 3 RESTRAINT ORDERS 10 15 Cases in which restraint orders may be made Restraint orders Seizure of property subject to restraint order Appointment of curator bonis in respect of property subject to restraint order 20 Orders in respect of immovable property subject to restraint order PART 4 REALISATION OF PROPERTY Realisation of property Application of certain sums of money Functions of curator boizi.~ Exercise of powers by High Court and curafor bonis Variation of confiscation orders Effect of sequestration of estates on realizable property Effect of winding-up of companies or other juristic persons on realizable 30 property CHAPTER 6 CWIL RECOVERY OF PROPERTY PART 1 INTRODUCTION 35 37. Proceedings are civil. not criminal PART 2 PRESERVATION OF PROPERTY ORDERS 38. 39. 40. 41. 42. 43, Preservation of property orders Notice of preservation of property orders Duration of preservation of property orders Seizure of property subject to presemation of property order Appointment of curator bonis in respect of prope~y subject to preservation of property order ~Iders in respect of immovable propefly subject to preservation of property 45 order 40 GOVERNMENT GAZE~, 4 Decemkr 1998 No. 19553 5 PREVENTION OF ORGANISED CRtME AH, 1998 Wet No. 121, 1998 44. 45. 46. 47. Provision for expenses Maximum legal expenses that can be met from preserved property Taxation of legal expenses Variation and rescission of orders PART 3 5 FORFEITURE OF PROPERTY 48. 49. jO. 51. j2. j3. 54. j5 j6. 57. Application for forfeiture order Late entry of appearance Making of forfeiture order Notice of reasonable grounds that property is concerned in commission of 10 offence Exclusion of interests in property Forfeiture order by default Exclusion of interests in forfeited property Appeal against forfeiture order Effect of forfeiture order Fulfillment of forfeiture order 15 P.4RT 4 GENERAL PROVISIONS RELATING TO PRESERVATION AND FORFEITURE OF PROPERTY ~~

11. In considering whether a person is a member of a criminal gang for purposes of this Chapter the court may, have regard to the following factors. namely that such person— (a) admits to criminal gang membership: (b) is identified as a member of a criminal gang by a parent or guardian: (c) resides in or frequents a particular criminal gang’s area and adopts their style of dress, their use of hand signs, language or their tattoos, and associates with known members of a criminal gang; (d) has been arrested more than once in the company of identified members of a criminal gang for offences which are consistent with usual criminal gang activity: (e) is identified as a member of a criminal gang by physical evidence such as photographs or other documentation. CHAPTER j PROCEEDS OF UNLAWFUL ACTIVITIES PART 1 APPLICATION OF CHAPTER Definitions and interpretation of Chapter 25 30 3j 40 12. (1) In this Chapter, unless the context indicates otherwise— (i) “affected gift” means any gift— (a) made by the defendant concerned not more than seven years before the fixed date: (b) made by the defendant concerned at any time, if it was a gift— 45 (i) ofpropefly received by that defendant in connection with an offence committed by him or her or any other person; or (ii) of property. or any part thereof, which directly or indirectly represented in that defendant’s hands property received by him or her in that connection. whether any such gift was made before or after the commencement of this Act: jO (H) “confiscation order” means an order referred to in section 18(1); (iii) ‘defendant” means a person against whom a prosecution for an offence has 12 No. 19553 GOVERNME~ G=E~. 4 December 1998 Act No. 121, 1998 PREVENTION OF ORGANISED CRIME ACT. 1998 been instituted, irrespective of whether he or she has been convicted or not. and includes a person referred to in section 25(1 )(b): “fixed date”, in relation to a defendant— (a) if a prosecution for an offence has been instituted against the defendant, (iv) means the date on which such prosecution has been instituted; (b) if a restraint order has been made against the defendant, means the date of such restraint order, whichever is the earlier date; “realizable property’. means property referred to in section 14; “restraint order’. means an order referred to in section 26(1); (v) (vi) (2) In this Chapter, except where it is inconsistent with the context or clearly 5 10 inappropriate, any reference— (a) to a person who holds property shall be construed as a reference to a person who has any interest in the property, and— (i) if the estate of such person has been sequestrated, also to the executor of 15 his or her insolvent estate; or (ii) if such person is a company or other juristic person which is being wound UP, also to the liquldator thereofi (b) to a person who transfers property to any other person shall be construed as a reference to a person who transfers or grants to any other person any interest in the property; (c) to anything received in connection with an offence shall be construed as a reference also to anything received both in that connection and in some other connection. (3) For the purposes of this Chapter. a person has benefited from unlawful activity if he or she has at any time, whether before or after the commencement of this Act. received any advantage, payment. service or reward including any property or part thereof in connection with any criminal activity earned on by him or her or by any other person. Proceedings are civil, not criminal 20 25 30 13. (1) For the purposes of this Chapter proceedings on application for a confiscation order or a restraint order are civil proceedings, and are not criminal proceedings. (2) The rules of evidence applicable in civil proceedings apply to proceedings on application for a confiscation order or a restraint order. (3) No rule of evidence applicable only in criminal proceedings shall apply to 35 proceedings on application for a confiscation order or restraint order. (4) No rule of construction applicable only in criminal proceedings shall apply to proceedings on application for a confiscation order or restraint order. (5) Any question of fact to be decided by a court in any proceedings in respect of an application contemplated in this Chapter shall be decided on a balance of probabilities. 40 Realizable property 14. (1) Subject to the provisions of subsection (2), the following property shall be realizable in terms of this Chapter, namely— (a) any property held by the defendant concerned; and (b) any property held by a person to whom that defendant has directly or 45 indirectly made any affected gift. (2) Property shall not be realizable property if a declaration of forfeiture is in force in respect thereof. Value of property 15. (1) For the purposes of this Chapter, the value of property, other than money, in 50 relation to any person holding the property, shall be— (u) where any other person holds an interest in the property— (i) the market value of the property; less (ii) the amount required to discharge any encumbrance on the property; and (b) where no other person holds an interest in the property, the market value of the 55 property. GOVERNMENT GWE~E, 4 Decemkr 1998 No. 19553 13 PREVENTION OF ORGANISED CRIME ACT. 1998 Wet No. 121, 1998 (2) Notwithstanding the provisions of subsection(1), any reference in this Chapter to the value at a particular time of a payment or reward, shall be construed as a reference t* (a) the value of the payment or reward at the time when the recipient received it, as adjusted to take into account subsequent fluctuations in the value of money: 5 or (b) where subsection (3) applies. the value mentioned in that subsection, whichever is the greater value. (3) If at the particular time the recipient holds— (a) the property, other than cash, which he or she received, the value concerned 10 shall be the value of the property at the particular time; or (b) property, or any part thereof, which directly or indirectly represents in his or her hands the property which he or she received, the value concerned shall be the value of the property, in so far as it represents the property which he or she received, at the relevant time. Gifts 16. (1) For the purposes of this Chapter. a defendant shall be deemed to have made a gift if he or she has transferred any property to any other person directly or indirectly for a consideration the value of which is significantly less than the value of the consideration supplied by the defendant. (2) For the purposes of section 20(2) the gift which a defendant is deemed to have made shall consist of that share in the property transferred by the defendant which is equal to the difference between the value of that property as a whole and the consideration received by the defendant in return. Conclusion of proceedings against defendant Ij ~o 25

58. Offence may form the basis of multiple orders

59. Application of Chapter to deceased estates

60. Effect of death of joint owner of preserved property

61. Expedition of applications 6~ Procedure and rules of court CHAPTER 7 CRINIINAL ASSETS RECOVERY ACCOUNT

63. Establishment of Criminal Assets Recove~ Account

64. Finances of Account

65. Establishment of Committee

66. Conditions of service, remuneration. allowances and other benefits of certain members of Committee

67. Meetings of committee Objects of Committee 68.

69. Powers and functions of Committee Other matters to be prescribed 70. CHAPTER 8 GENERAL PROVISIONS Offences relating to misuse of information. failure to comply with order of court, and hindering of person in performance of functions Jurisdiction of courts

63. There is hereby established in the National Revenue Fund a separate account to be known as the Criminal Assets Recovery Account. Finances of Account

64. The Account shall consist of— (a) all moneys derived from the execution of confiscation and forfeiture orders 30 contemplated in Chapters 5 and 6: (b) the balance of all moneys derived from the execution of foreign confiscation orders as defined in the International Co-Operation in Criminal Matters Act. 1996 (Act No. 75 of 1996). after payments have been made to requesting States in terms of that Act: (c) any moneys appropriated by Parliament. or paid into the Account in terms of any other act: (d) domestic and foreign grants: (e) any amount of money received or acquired from any source: and (f) all moneys transferred to the Account in terms of this Act. Establishment of Committee 65. (1) There is hereby established a Committee to be hewn as the Criminal Assets Recovery Committee. (2) The Committee shall consist of— (a) the Minister, who shall be the chairperson of the Committee: (b) the Minister of Safety and Security: (c) the Minister of Finance; (d) the National Director: and (e) if necessary, two other persons designated by the Minister. 35 40 45 (3) The members of the Committee may designate an alternate to attend a meeting of 50 the Committee in their place. (4) The Committee shall designate one of its members as deputy chairperson of the Committee, and when the chairperson is not available, the deputy chairperson shall act as chairperson. GOVERNMENT GAZE~. 4 December 1998 No. 19553 33 Prevention OF ORGANISED CRIME Am, 1998 Wet No. 121, 1998 Conditions of service, remuneration, allowances and other benefits of certain members of Committee

66. The members of the Committee appointed in terms of section 65(2)(c) shall, if appropriate, receive such remuneration. allowances and other employment benefits and shall be appointed on such terms and conditions and for such periods as may be prescribed. Meetings of Committee 67. ( I ) A meeting of the Committee shall be held at a time and place determined by the chairperson. (2) The procedure. including the manner in which decisions shall be taken. to be followed at meetings of the Committee and the manner in which the Committee shall conduct its affairs shall be determined by the Committee. if such procedure is not prescribed. Objects of Committee

68. The objects of the Committee shall be— (a) to advise Cabinet in connection with all aspects of forfeiture of property to the State in terms of Chapter 6 and the transfer of forfeited property to the Account in terms of any other Act: (b) to advise Cabinet in connection with the rendering of financial assistance to law enforcement agencies in order to combat organised crime, money laundering. criminal gang activities and crime in general; and (c) to advise Cabinet in connection with the rendering of financial assistance to any other institution. organisation or fund established with the object to render assistance in any manner to victims of crime. Powers and Functions of Committee

69. The Committee mav— . ((1) (b) (c) (d) (e) (f) make recommendations to Cabinet with regard to a policy [o be adopted concerning the forfeiture and realisation of property. other than moneys, in terms of Chapter 6 and the transfer of such property to the Account in terms of any other Act: make recommendations to Cabinet with regard to the allocation of moneys from the Account to specific law enforcement agencies: make recommendations to Cabinet with regard to the allocation of moneys from the Account to any institution. organisation or fund contemplated in section 68(c); make recommendations to Cabinet regarding the allocation of moneys for the administration of the Committee: exercise such powers and shall perform such functions as may be confemed or imposed upon it by this Chapter. and may exercise such powers as may be necessary or expedient for or incidental to the achievement of its objects; and exercise such powers and perfom such functions as may be conferred or imposed upon it by regulations as may be necessary or expedient for or incidental to the achievement of its objects or the powers and functions referred to in paragraphs (cij. (b). (c) and (d). Other matters to be prescribed

70. All other matters in connection with the Committee or arising from this Chapter shall be prescribed. j 10 lj 20 15 30 35 40 45 34 No. 19553 GOVERNMENT GAZE~E. 4 Decem&r 1998 Act No. 121.1998 PREVENTION OF ORGANISED CRIME ACT. 1998 C~PTER 8 GENERAL PROVISIONS Access to information 71. (1) The National Director may request any person employed in or associated with a Government Department or statutory body to furnish him or her with all information 5 that may reasonably be required for any investigation in terms of this Act and such person shall notwithstanding anything to the contrary contained in any law which prohibits or precludes him or her— (a) from disclosing any information relating to the activities, affairs or business of any other person; or 10 (b) from permitting any person to have access to any registers, records or other documents, or electronic data which have a bearing on the said activities, affairs or business, furnish the National Director with such information and permit the National Director to have access to any registers, records, documents, and electronic data, which may contain 15 such information. (2) The provisions of subsection(1) shall not be construed as prohibiting any Minister by whom or any other departmental or institutional authority by which, or under the control of whom or which. any law referred to in that subsection is administered, or any board. institution or body established by or under any such law, from making any 20 practical and reasonable procedural arrangements with regard to the furnishing of such information or the granting of the access contemplated in that subsection and according to which the information or access shall be furnished or granted or with regard to any reasonable safeguards which any such Minister, authority, board. institution, body or person. confidentiality of such information, registers, records. documents or electronic data. subject to the provisions of subsection (3), requires to maintain the 25 (3) (a) No person shall without the written permission of the National Director disclose to any other person any confidential information, registers, records, documents or electronic data which came to his or her knowledge in the performance of his or her functions in terms of this Act and relating to the activities. affairs or business of any 30 other person. except— (i) for the purpose of performing his or her functions in terms of this Act: (ii) in the course of adducing evidence in any criminal proceedings or proceedings in terms of this Act: or (iii) when required to do so by an order of a court of law. 35 (b) Any person who contravenes paragraph (a) shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 20 years. Investigations

72. Whenever the National Director has reason to believe that any person may be in possession of information relevant to the commission or intended commission of an 40 alleged offence in terms of this Act. or any person or enterprise may be in possession. custody or control of any documentary material relevant to such alleged offence. he or she may. prior to the institution of any civil or criminal proceeding. under written authority direct that a particular Director of Public Prosecutions shall have. in respec[ of a specific investigation. the power to institute an investigation in terms of the provisions 45 of Chapter 5 of the National Prosecuting Authority Act. 1998. Sharing of information

73. Notwithstanding the provisions of section 4 of the Income Tax Act and with regard to any other secrecy provision in similar legislation, whenever any investigation is instituted in terms of this Act. including an investigation into any offence referred to 50 in Schedule 1. and an investigation into the property, financial activities, affairs or business of any person, the Commissioner of the South African Revenue Services or any official designated by him or her for this purpose, shall be notified of such investigation with a view to mutual co-operation and the sharing of information. GOVERNMENT G=~, 4 Decem~r 1998 No. 19553 35 PREVEN~ON OF ORGANISED CRIME ACT, 1998 Wet No. 121, 1998 Hearings of court to be open to public 74. (1) (a) Subject to the provisions of [his section, the hearings of the court contemplated in this Act, except for ex parre applications, shall be open to the public. (b) If the High Court, in any proceedings before it, is satisfied that— (i) it would be in the interest of justice; or (ii) there is a likelihood that harm may ensue to any person as a result of the j proceedings being open, it may direct that such proceedings be held behind closed doors and that the public or any category thereof shall not be present at such proceedings or any part thereof. (c) An application for proceedings to be held behind closed doors may be brought by 10 the National Director, the curator bonis referred to in section 32 or 48 and any other person referred to in paragraph (b)(ii), and such application shall be heard behind closed doors. (d) The High Court may at any time review its decision with regard to the question whether or not the proceedings shall be held behind closed doors. (2) Where the High Court under subsection (l)(b) on any grounds referred to in that subsection directs that the public or any category thereof shall not be present at any proceedings or part thereof, the High Court may— (a) direct that no information relating to the proceedings, or any part thereof held behind closed doors, shall be made public in any manner; (b) direct that no person, in any manner, make public any information which may lj 20 reveal the identity of any witness in the proceedings. (c) give such directions in respect of the record of proceedings as may be necessary to protect the identity of any witness: Provided that the High Court may authorise the publication of so much information as 25 it considers would be just and equitable. (3) Any person who discloses any information in contravention of subsection (2) shall be guilty of ~ offence and liable on conviction to a fine, or to imprisonment for a period not exceeding two years. Offences relating to misuse of information, failure to comply with order of court, 30 and hindering person in performance of functions 75. (1) Any person who knows or ought reasonably to have known— (a) that information has been disclosed under the provisions of Chapter 3 or j; or (b) that an investigation is being, or may be. conducted as a result of such a disclosure, 35 directly or indirectly alerts, or brings information to the attention of another person which will or is likely to prejudice such an investigation, shall be guilty of an ofience. (~) Any person who intentionally refuses or fails to comply with an order of court made in terms of Chapter 5 or 6. shall be guilty of an offence. (3) Any person who hinders a cltraror bonis, a police official or any other person in the 40 exercise, performance or carrying out of his or her powers, functions or duties under Chapter 5 or 6, shall be guilty of an offence. (4) Any person convicted of an offence contemplated in— (a) subsection (1) or (2) shall be liable to a tine. or to imprisonment for a period not exceeding 15 years; or 4j (b) subsection (3) shall be liable to a tine, or to imprisonment for a period not exceeding two years. Jurisdiction of courts 76. (l) A re&ional court shall have penal jurisdiction to impose any penalty mentioned in sections 8, even though that penalty may exceed the penal jurisdiction of that court. jO (~) A magistrate’s COUfl shall have penal jurisdiction to impose any penaity mentioned in section 10, even though that penalty may exceed the penal jurisdiction of that court. (3) A magistrates’ court or regional court shall have jurisdiction to m~e any order referred to in section 18(1), even though the amount payable under that order may exceed the civil jurisdiction of a magistrate’s court or regional court. jj 36 No. 19553 GOVERN~NT GMETTE. 4 D&ember 1998 Act No. 121, 1998 PREVENTION OF ORGANISED CRIME Am. 1998 Regulations 77. ( 1 ) The Minister may make regulations— . . . . . (c) (d) (a) (b) with regard to the fees refe-rred to in section 28(3)(c): with regard to the nature of the information contemplated in section 7 and the manner in which it is to be reported: with regard to the designation of persons for purposes of section 7; to prescribe from time to time the maximum allowable costs for legal services provided in connection with an application for a preservation of property order or forfeiture order or the defending of a criminal charge which may be met out of property that is subject to a preservation of property order; providing for any matter which is required or permitted to be or may be prescribed under any provision of this Act: and providing for any matter which he or she may consider necessary or expedient to prescribe or to regulate in order to achieve the objects of this Act. (~) Regulations under subsection (1 )(a) may prescribe costs by applying, adoptin& or incorporating. with or without modification, the provisions of any act or any instrument made under an act or of any other publication. whether of the same or a different kind, as in force on a particular day or as in force for the time being. (e) (f) 5 10 (3) Any regulation made under this section, which may result in financial expenditure for the state shall be made in consultation with the Minister of Finance. (4) Any regulation made under this section may provide that any person who contravenes a provisions thereof or fails to comply therewith. shall be guilty of an offence and on conviction be liable to a fine or to imprisonment for a period not exceeding three years. (5) Any regulation made under this section shall, before publication thereof in the Gazette, be submitted to Parliament. Liability

71. Access to information 7~ Investigations

73. Sharing of information

74. Hearing of court to be open to public 75. 76.

79. Amendment and repeal of laws

80. Transiti~onal arrangement 81. Short title and commencement 30 35 40 45 50 6 No. 19553 GOVERNMENT GWE~. 4 Decem&r 1998 Act No. 121, 1998 PREVENTION OF ORGANISED CRIME Am. 1998 SCHEDULE 1 (Sections 1,38,50,51,52,54,58 and 73) SCHEDULE 2 Amendment of the International Co-operation in Criminal Matters Act, 1996 (Act No. 75 of 1996) (Section 79) SCHEDULE 3 Amendment to Sections of the Drugs and Drug Trafficking Act, 1992 (Act No. 140 of 1992) (Section 79) 5 10 CHAPTER 1 DEFINITIONS AND INTERPRETATION Definitions and interpretation of Act 1. ( 1 ) In this Act, unless the context otherwise indicates— (i) (ii) (iii) (iv) (1’) (vi) “Account” means the Criminal Assets Recovery Account established under 15 section 63: (xv) ‘authorised police official” means any official of the South African Police Service who is authorised by the National Director or the National Commissioner of Police to act under this Act; (iv) “Committee” means a committee established in terms of section 65; (vi) 20 includes any formal or informal ongoin& organisation, “criminal gang’. association. or group of three or more persons, which has as one of its activities the commission of one or more criminal offences, which has an identifiable name or identifying sign or symbol. and whose members individually or collectively engage in or have engaged in a pattern of criminal 25 gang activity; (vii) ‘enterprise” includes any individual. partnership. corporation, association. or other juristic person or legal entity, and any union or group of individuals associated in fact. although not a juristic person or legal entity; (xi) “High Court”. includes for the purposes of Chapters 2, sections 25 to 29 of 30 Chapter 5 and Chapter 6 any judge thereofi (v) (viii) (ix) (x) (vii ) Ainstrumentality of an offence means any property which is concerned in the commission or suspected commission of an offence. whether within the Republic or elsewhere: (ix) ‘interest.. includes any right: (i) “Minister.. means the Minister of Justice..: (viii) “National Director.’ means— (u) for the purposes of section 65(2)(d). the National Director of Public Prosecutions appointed in terms of section 179(1)(a) of the Constitution: (h) for the purposes of sections 2(4).71 or 72 the National Director of Public 40 Prosecutions appointed as contemplated in paragraph (a) and includes a Director of Public Prosecutions. an Investigating Director of Public Prosecutions and a Special Director of Public Prosecutions referred to in section 1 of the National Prosecution Authority Act. 1998 (Act No. 32 of ] 998). who is authorised thereto in writing by the National Director in a 45 specific case or in general: 35 (c) for the purposes of all other relevant provisions of this Act, the National Director of Public Prosecutions appointed as contemplated in paragraph (a) and includes any functionary referred to in section 1 of the National Prosecuting Authority Act, 1998. which is under the control of the 50 National Director and authorised thereto by the National Director in a specific case or in general; (x) (xi) “pattern of cnfinal gang activity” includes the commission of two or more criminal offences referred to in Schedule 1: Provided that at least one of those GOVERNMENT GAZE~E. 4 December 1998 No. 19553 7 PREVENTION OF ORGANISED CRIME ACT, 1998 Wet No. 121, 1998 offences occurred after tie date of commencement of Chapter 4 and the last of those offences occurred within three years after a prior offence and the offences were cornmitted— (a) on separate occasions; or (b) on the same occasion, by two or more persons who are members of, or j belong to, the same criminal gang; (xiii) “pattern of racketeering activity” means the planned, ongoing, continuous or repeated participation or involvement in any offence referred to in Schedule 1 and includes at least two offences referred to in Schedule 1, of which one of the offences occurred after the commencement of this Act and the last offence 10 occurred within 10 years (excluding any period of imprisonment) after the commission of such prior offence referred to in Schedule 1; (xiv) “prescribed” means prescribed by regulation under section 77: (xvi) “preservation of property order” means an order referred to in section 38: (iii) “proceeds of unlawful activities”, means any property or part thereof or any 15 service, advantage, benefit or reward which was derived, received or retained, directly or indirectly, in connection with or as a result of any unlawful activity carried on by any person, whether in the Republic or elsewhere, except for purposes of Chapter 5 where it means— (a) any unlawful activity carried on by any person; or (b) any act or omission outside the Republic which, if it had occurred in the 20 Republic, would have constituted an unlawful activity, and includes any property representing property so derived; (xii) “property” means money or any other movable, immovable, corporeal or incofior~al thing and inc~udes an; rights, privileges. claims and securities and ?j any interest therein and all proceeds thereo~ (ii) (xii) (xiii) (xiv) (xv) (xvi) (2) For purposes of this Act a person has knowledge of a fact if— (a) the person has actual knowledge of that fact: or (b) the COUfi is satisfied [hat— (i) the person believes that there is a reasonable possibility of the existence 30 of that fact; and (ii) he or she fails to obtain information to confirm the existence of that fact, (3) For purposes of this Act a person ought reasonably to have known or suspected a fact, the conclusions that he or she ought to have reached are those which would have been reached by a reasonably diligent and vigilant person having both— (a) the general knowledge. skill. training and experience that may reasonably be expected of a person in his or her position: and (b) the general knowledge, skill. training and experience that he or she in fact has. (4) Nothing in Chapters 2.3 and 4 shall be construed to limit prosecution under any other provision of the law. CHAPTER 2 OFFENCES RELATING TO RACKETEERING ACTIVITIES Offences 2. ( 1 ) Any person who— (a) (i) receives or retains any property derived. directly or indirectly: and (ii) knows or ought reasonably to have known that such property is deriled. directly or indirectly. 3j 40 45 from a pattern of racketeering activity: and (iii) uses or invests. directl~ or indirectly. any part of such property in acquisition of any interest in, or the establishment or operation or jO activities of, any enterprise; receives or retains any property, directly or indirectly, on behalf of any enterprise; and who knows or ought reasonably to have known that such property derived or is derived from or through a pattern of racketeering activity; jj uses or invests any property. directly or indirectly, on behalf of any enterprise or in acquisition of any interest in. or the establishment or operation or activities of any enterprise; and who knows or ou&ht reasonably to have known that such property, (b) (i) (ii) (c) (i) (ii) 8 No. 1955.7 GOVERNMENT GAZE~E. 4 December 1998 Act No. 121, 1998 PREVENTION OF ORGANISED CRIME ACT. 1998 derived or is derived from or through a pattern of racketeering activit!’: (d) acquires or maintains. directly or indirectly. any interest in or control of any enterprise through a pattern of racketeering activity: (e) whilst managing or employed by or associated with any enterprise. conducts or participates in the conduct. directly or indirectly, of such enterprises affairs 5 through a pattern of racketeering activity: (f) manages the operation or activities of an enterprise and who knows or ought reasonably to have known that any person. whilst employed by or associated with that enterprise. conducts or participates in the conduct, directly or indirectly. of such enterprise’s afi-airs through a pattern of racketeering 10 activity: (g) conspires or attempts to violate any of the provisions of paragraphs (~~). (1~). (c). (d). (e) or (f). within the Republic or elsewhere. shall be guilty of an offence. (2) The court may hear evidence. including e~’ldence with regard to hearsay. similar i 5 Pacts or previous convictions. relating to offences contemplated in subsection ( 1 ). notwithstanding that such evidence might otherwise be inadmissible. provided that such evidence would not render a trial unfair. (3) For purposes of proving a previous conviction during a trial in respect of an offence contemplated in subsection ( 1 ). it shall be sufficient to prove the original record 20 of judicial proceedings if a copy of such record, certified or purporting to be certified by the registmr or clerk of the court or other oficial having the custody of the record of such judicial proceedings or by the deputy of such registrar. clerk or other official or. in the case where judicial proceedings are taken down in shorthand or by mechanical means. by the person who transcribed such proceedings, as a true copy of such record. is 25 produced in evidence at such trial, and such copy shall be ~~ri~tta fac;e proof that arty matter purporting to be recorded thereon was correctly recorded. (4) A person shall only be charged with committing an offence contemplated in subsection ( 1 ) if a prosecution is authorised in writing by the National Director. Penalties 30 3. ( 1 ) Any person convicted of an offence referred to in section 2(1) shall be liable to a fine not exceeding R 1 000 million, or to imprisonment for a period up to imprisonment for life. (2) Notwithstanding any other law dealing with the penal jurisdiction of the regional court. if a regional court. after it has convicted an accused of an offence referred to in 35 section 2(1 ) following on— ((z) a plea of guilty: or (1~) a plea of not guilty. but before sentence. is of the opinion that the offence in respect of which the accused has been convicted merits punishnlent— (i) in excess of the penal jurisdiction of the regional court but not exceeding a fine of R 100 million or a period of 30 years imprisonment. the regional court shall have jurisdiction to impose such penalty even though that penalty exceeds the penal jurisdiction of that court: or 40 (ii ) exceeding a fine of R] 00 million or a period of 30 years imprisonment or 45 merits imprisonment for life, the regional court shall stop the proceed- ings and commit the accused for sentence by a High Court having jurisdiction. (3) If a regional court has committed an accused for sentence by a High Court in terms of subsection (2) the provisions of section 52 of the Criminal Law Amendment Act, 50 1997 (Act No. 105 of 1997). notwithstanding the provisions of section 53, shall apply with the necessary changes regarding the referral by the regional court to the High Court. OFFENCES RELATING TO PROCEEDS OF UNLAWTFUL ACT1171TIES 55 CHAPTER 3 Money laundering

4. Any person who knows or ought reasonably to have known that property is or forms part of the proceeds of unlawful activities and— GOVERNMENT GUETTE. 4 December 1998 No. 19553 9 Prevention OF ORGANISED CRIME ACT, 1998 Wet No. 121, 198 (u) enters into any agreement or engages in any arrangement or transaction with anyone in connection with that property. whether such agreement, arrange- ment or transaction is Iegrdly enforceable or not: or (b) performs any other act in connection with such property, whether it is performed independently or in concert with any other person, which has or is likely to have the effect— (i) (ii) of concealing or disguising the nature, source, location, disposition or movement of the said property or its ownership or any interest which anyone may have in respect thereofi or of enabling or assisting any person who hus committed or commits an otience, whether in the Repubiic or elsewhere— (au) to avoid prosecution; or (bb) to remove or diminish any property acquired directly, or indirectly, tis J result of the commission of an offence, shall be guilty of an offence. j I () lj Assisting another to benefit from proceeds of unlawful activities

5. Any person who knows or ought reasonably [o have known [hat onother person has obtained the proceeds of unlawful ~ctivities. enters into any agreement with ~nyone or engages in any arrangement or transaction whereby— (a) the retention or the control by or on behalf of the said other person of the 20 proceeds of unlawful activities is facilitated: or (b) the said proceeds of unlawful activities are used to make funds available to the said other person or to acquire property on his or her behalf or to benetit him or her in any other way, shall be guilty of an offence. Acquisition, possession or use of proceeds of unlawful activities

6. Any person who— (a) acquires; (b) uses; or (c) has possession. of property and who knows or ought reasonably to have known that it is or forms part of the proceeds of unlawful activities of another person. shall be guilty of an offence. Failure to report suspicion regarding proceeds of unlawful activities 7. (1) Any person who carries on a business or is in charge of a business undertaking who suspects or ought reasonably to have suspected that— (a)’ (b) (c) any property which comes into his or her possession or the possession of the said business undertaking is. or forms part of. the proceeds of unlawful activities; a transaction to which he or she or the business undertaking is a party will facilitate the transfer of the proceeds of unlawful activities: or a transaction to which he or she or the business undertaking is a party and which is discontinued— (i) may have brought the proceeds of unlawful activities into possession of the person or business undertaking: or 25 30 35 40 (ii) may have facilitated the transfer of the proceeds of unlawful activity. had 4j that transaction been concluded, must report his or her suspicion and all available information concerning the grounds on which it rests, within a reasonable time to a person designated by the Minister and shall take all reasonable steps to discharge such obligation. (2) A report under subsection ( 1 ) shall be accompanied by copies of documentation 50 directly relevant to that suspicion and the grounds on which it rests. (3) A person to whom a report may be made under subsection ( 1 ) may. in writing, require the person making the report to provide him or her or an official identified in the request with— (a) particulars or further particulars of any matter concerning the suspicion to j5 which the report relates and the grounds upon which it rests; and 1() No. 19553 GOVERNMENT GAZE~E, 4 December 1998 Act No. 121, 1998 PREVENTION OF ORGANISED CRIME ACT, 1998 (b) copies of all available documents concerning such particulars or further particulars. (4) When a person receives a request under subsection (3) he or she shall furnish the person who made the request with the requested particulars or further particulars and copies of documents to the extent that such particulars or documents are available to him 5 or her within a reasonable time. (5) (a) No obligation as to secrecy and no other restriction on the disclosure of information as to the affairs or business of another, whether imposed by any law, the common law or any agreement. shall affect any obligation imposed under this section to report or disclose information or to permit access to any registers, records or other 10 documents unless that obligation of secrecy or restriction is based on the common law right to professional privilege between an attorney and his or her client in respect of information communicated to the attorney so as to enable him or her to provide advice. to defend or to render other legal assistance to the client in connection with an offence under any law, of which the client is charged. in respect of which he or she has been 15 arrested or summoned to appear in court or in respect of which an investigation with a view to instituting criminal proceedings is being conducted against him or her. (b) No liability based on a breach of an obligation as to secrecy or any restriction on the disclosure of information, whether imposed by any law. the common law or arty agreement, shall arise from a disclosure of any information in compliance with any 20 obligation imposed by this section. (6) A person who is a party to a transaction in respect of which he or she forms a suspicion which in his or her opinion should be reported under subsection (1). may continue with that transaction and must ensure that all records relating to that transaction are kept and that all reasonable steps are taken to discharge the obligation under this 25 section. (7) Any person who fails to comply with an obligation contemplated in this section shall be guilty of an offence. Penalties 8. (1) Any person convicted of an offence contemplated in section 4, 5 or 6 shall be 30 liable to a fine not exceeding R 100 million. or to imprisonment for a period not exceeding 30 years. (2) Any person convicted of an offence contemplated in section 7(7), shall be liable to a fine, or to imprisonment for a period not exceeding 15 years. CHAPTER 4 35 OFFENCES RELATING TO CRIMINAL GANG ACTIVITIES Gang related offences 9. (1) Any person who actively participates in or is a member of a criminal gang and wh~ (a) (b) wilfully aids and abets any criminal activity committed for the benefit of. at 40 the direction of, or in association with any criminal gang; threatens to commit, bring about or perform any act of violence or any criminal activity by a criminal gang or with the assistance of a criminal gang: or threatens any specific person or persons in general, with retaliation in any 45 manner or by any means whatsoever, in response to any act or alleged act of violence, shall be guilty of an offence. (2) Any person wh~ (c) (a) (b) (c) performs any act which is aimed at causing. bringing about, promoting or 50 contributing towards a pattern of criminal gan& activity; incites, instigates, commands, aids, advises, encourages or procures any other person to commit, bring about. perform or participate in a pattern of criminal gang activity; or intentionally causes, encourages, recruits, incites, instigates, commands. aids 55 or advises another person to join a criminal gang. shall be guilty of any offence. GOVERNMENT GUE~E, 4 Decemkr 1998 No. 19553 I I PREV~TION OF ORGANISED CRIME ACT. 1998 Wet No. 121, 1998 Penalties 10. (1) Any person convicted of an offence contemplated in— (a) section 9(1) or (2)(a) shall be liable to a fine, or to imprisonment for a period not exceeding six years; (b) section 9(2)(b) or (c), shall be liable to a fine, or to imprisonment for a period 5 not exceeding three years; (c) section 9(1 ) or (2)(a) and if the otience was committed under circumstances referred to in subsection (2) shall be liable to a fine, or to imprisonment for a period not exceeding eight years: (d) section 9(2)(b) or (c), and if the ofience was committed under circumstances 10 referred to in subsection (2) shall be liable to a fine or to imprisonment for a period not exceeding five years. (~) If the Offence contemplated in section 9 is committed on the premises or grounds of, or within 500 metres of a public or private school, or any other educational institution. during hours in which the facility is open for classes or school related 1 j programmed or when minors are using the facility, such circumstance shall be regarded as an aggravating factor. (3) If a court, after having convicted an accused of any offence. other than an offence contemplated in this Chapter. finds that the accused was a member of a criminal gang at the time of the commission of the offence. such factor shall be regarded as an 20 aggravating factor for sentencing purposes. Interpretation of member of criminal gang

17. For the purposes of this Chapter, the proceedings contemplated in terms of this Chapter against a defendant shall be concluded when— (a) the defendant is acquitted or found not guilty of an otience; (b) subject to section 18(2), the court convicting the defendant of an offence, sentences the defendant without making a confiscation order against him or 30 her; (c) the conviction in respect of an otience is set aside on review or appeal: or (d) the defendant satisfies the confiscation order made against him or her. PART 2 CONFISCATION ORDERS Confiscation orders 18. ( 1 ) Whenever a defendant is convicted of an otience the court convicting the defendant may, on the application of the public prosecutor, enquire into any benefit which the defendant may have derived from— (a) that offence; (b) any other offence of which the defendant has been convicted at the same trial; 40 and (c) any criminal activity which the court finds to be sufficiently related to those offences, and. if the court finds that the defendant has so benefited. the court may, in addition to 45 any punishment which it may impose in respect of the offence, make an order against the defendant for the payment to the State of any amount it considers appropriate and the court may make any further orders as it may deem fit to ensure the effectiveness and fairness of that order. (2) The amount which a court may order the defendant to pay to the State under jO subsection ( 1 )— (a) shall not exceed the vtiue of the defendant’s proceeds of the offences or related criminal activities referred to in that subsection, as determined by the court in accordance with the provisions of this Chapter; or 14 No, 19S53 GOVERNMENT GUE~E. 4 December 1998 Act No. 121.1998 PREVENTION OF ORGANISED CRIME ACT, 1998 (b) if the coun is satisfied that the amount which might be realised as contemplated in section 20(1) is less than the value referred to in paragraph (a), shaIl, not exceed an amount which in the opinion of the court might be so realised. (3) A court convicting a defendant may. when passing sentence, indicate that it will 5 hold an enquiry contemplated in subsection (1) at a later stage if— (a) it is satisfied that such enquiry will unreasonably delay the proceedings in sentencing the defendant: or (b) the public prosecutor applies to the court to first sentence the defendant and the court is satisfied that it is reasonable and justifiable to do so in the 10 circumstances. (4) If the judicial officer who convicted the defendant is absent or for any other reason not available. any judicial officer of the same court may consider an application referred to in subsection (1) and hold an enquiry referred to in that subsection and he or she may in such proceedings take such steps as the judicial officer who is absent or not available 15 could lawfully have taken. (5) NO application referred to in subsection (1) shall be made without the written authority of the National Director. (6) A court before which proceedings under this section are pending. may— (a) in considering an application under subsection (1 )— 20 (i) refer to the evidence and proceedings at the trial: (ii) hear such further oral evidence as the court may deem fit; (iii) direct the public prosecutor to tender to the court a statement referred to in section 21 ( 1 )(a): and (iv) direct a defendant to tender to the court a statement referred to in 25 subsection (3)(a) of that section: (b) subject to subsection ( 1 )(b) or (3)(b) of section 21. adjourn such proceedings to any day on such conditions not inconsistent with a provision of the Criminal Procedure Act. 1977 (Act No. 51 of 1977). as the court may deem fit. Value of proceeds of unlawful activities 19. (1) Subject to the provisions of subsection (2). the value of a defendant’s proceeds of unlawful activities shall be the sum of the values of the payments or other rewards received by him or her at any time, whether before or after the commencement of this Act$ in connection with the criminal activity carried on by him or her or any other person. (2) In determining the value of a defendants proceeds of unlawful activities the court shall— (a) where it has made a declaration of forfeiture or where a declaration of forfeiture has previously been made in respect of property which is proved to the satisfaction of the coun— (i) to have been the property which the defendant received in connection with the criminal activity carried on by him or her or any other person; or (ii) to have been property which directly or indirectly represented in the defendant’s hands the property which he or she received in that connection. leave the propen! out of account: (b) where a confiscation order has previously been made against the defendant leave out of account those proceeds of unlawful activities which are proved to the satisfaction of the court to have been taken into account in determining the amount to be recovered under that confiscation order. 30 35 40 45 50 Amounts which might be realised 20. (1) For the purposes of section 18(1)(b) or21 (3)(a), the amount which might be realised at the time of the making of a confiscation order against a defendant shall be the amount equal to the sum of— (a) the values at that time of all realizable property held by the defendant; and 55 (b) the values at that time of all affected gifts made by the defendant, less the sum of all obligations, if any, of the defendant having priority and which the coun may recognise for this purpose. GOVERNMENT GWE~, 4 Decemkr 1998 No. 19553 15 Prevention OF ORGANISED CRIME ACT, 1998 Wet No. 121, 1998 (2) Notwithstanding the provisions of section 15(1) but subject to the provisions of section 16(2), the value of an affected gift at the time of the mating of the relevant confiscation order shall be— (a) the value of the tiected gift at the time when the recipient received it, as adjusted to t~e into account subsequent fluctuations in the value of money; or 5 (b) where subsection (3) applies, the value mentioned in that subsection, whichever is the greater v~ue. (3) If at the time of the mting of the relevant confiscation order the recipient holds— (a) the property, other than cash, which he or she received, the value concerned shall be the value of the property at that time; or 10 (b) the property which directly or indirectly represents in his or her hands the property which he or she received, the value concerned shall be the value of the property, in so far as it represents the property which he or she received. at the time. (4) For the purposes of subsection ( 1), an obligation has priority at the time of the 1 j mting of the relevant confiscation order— (a) if it is an obligation of the defendant, where he or she has been convicted by a court of any offence— (i) to pay a fine imposed before that time by the court; or (ii) to pay any other amount under any resultant order made before that time 20 by the court: (b) if it is an obligation which— (i) if the estate of the defendant had at that time been sequestrated: or (ii) where the defendant is a company or other juristic person. if such company or juristic person is at that time being wound up, 25 would be payable in pursuance of any secured or preferent claim against the insolvent estate or against such company or juristic person. as the case may be, (5) A coufl shall not determine the amounts which might be realised as contemplated in subsection ( 1 ) unless it has afforded ail persons holding any interest in the property concerned an opportunity to m~e representations to it in connection with the realisation 30 of that property. Statements relating to proceeds of unlawful activities 21. (1) (a) The public prosecutor may or, if so directed by the court, shall tender to the court a statement in writing under oath or affirmation by him or her or any other person in connection with any matter which is being enquired into by the court under section 35 18( 1), or which relates to the determination of the value of a defendant’s proceeds of unlawful activities. (b) A copy of such statement shall be served on the defendant at least 14 days before the date on which that statement is to be tendered to the court. (2) (a) The defendant may dispute the correctness of any allegation contained in a 40 statement referred to in subsection (1)(a), and if the defendant does so dispute the correctness of any such allegation, he or she shall state the grounds on which he or she relies. (b) In so far as the defendant does not dispute the correctness of any allegation contained in such statement, that allegation shall be deemed to be conclusive proof of 45 the matter to which it relates. (3) (a) A defendant may or, if so directed by the court, shall tender to the court a statement in writing under oath or affirmation by him or her or by any other person in connection with any matter which relates to the determination of the amount which might be realised as contemplated in section 20(1). jO (b) A COPY of such statement shall be served on the public prosecutor at least 14 days before the date on which that statement is to be tendered to the court. (4) (a) The public prosecutor may admit the correctness of any allegation contained in a statement referred to in subsection (3)(a). (b) b so far as the public prosecutor admits the correctness of any allegation jj contained in such statement, that allegation shall be deemed to be conclusive proof of the matter to which it relates. 16 No. 19553 GOVERNMENT GAZE~E. 4 December 1998 Act No. 121, 1998 PREVENTION OF ORGANISED CRIME ACT, 1998 Evidence relating to proceeds of unlatiul activities 22. (1) For the purposes of determining whether a defendant has derived a benefit in an enquiry under section 18(1). if it is found that the defendant did not at the fixed date. or since the beginning of a period of seven years before the fixed date. have legitimate sources of income sufficient to justify the interests in any property that the defendant holds, the court shall accept this fact as prima ,facie evidence that such interests form part of such a benefit. (2) For the purposes of an enquiry under section 18(1), if it is found that a court had ordered the defendant to disclose any facts under section 26(7) and that the defendant had without sufficient cause failed to disclose such facts or had, after being so ordered. furnished false information, knowing such information to be false or not believing it to be true, the court shall accept these facts as prima ,fucie evidence that any property to which the information relates— (a) forms part of the defendants benefit, in determining whether he or she has derived a benefit from an offence; or (b) is held by the defendant as an advantage. pa~ment. service or reward in connection with the offences or related crim]nal activities referred to in section 18( 1). (3) For the purposes of determining the value of a defendants proceeds of unlawful activities in an enquiry under section 20(1 )— (cl) if the court finds that he or she has benefited from an offence and that— (i) he or she held property at any time at, or since. his or her conviction: or (ii) propefly was transferred to him or her at any time since the beginning of a period of seven years before the fixed date. the court shall accept these facts as prima,facie evidence that the property was received by him or her at the earliest time at which he or she held it. as an advantage, payment. service or reward in connection with the offences or related criminal activities referred to in section 18(1 ): (b) if the court finds that he or she has benefited from an offence and that expenditure had been incurred by him or her since the beginning of the period contemplated in paragraph (c/). the court shall accept these facts as pr;m(r facie evidence that any such expenditure was met out of the advantages. payments. services or rewards. including any property received by him or her in connection with the offences or related criminal activities referred to in section 18( 1 ) committed by him or her. (4) For the purpose of determining the value of any property in an enquiry under section 18( 1 ), if the court finds that the defendant received property at any time as an advantage. payment. service or reward in connection with the offences or related criminal activities referred to in that subsection committed by him or her or by any other person the court shall accept this fact as prima,facie evidence that he or she received that property free of any other interest therein. Effect of confiscation orders 23. ( 1 ) A confiscation order made— (a) by a magistrate’s court. other than a regional court. shall have the effect of a civil judgment of that court: 5 10 ]S 20 25 30 35 40 45 (b) by a regional court shall have the effect of a civil judgment of the magistrates court of the district in which the relevant trial took place. (2) Where a High Court makes a confiscation order— (u) the confiscation order shall have the effect of a civil judgment of that court: or (b) the presiding judge may direct the registrar of that court to forward a certified 50 copy of the confiscation order to the clerk of the magistrate’s court designated by the presiding judge or. if no such court is designated. to the clerk of the magistrate’s Coufi within the area of jurisdiction of which the offence concerned was committed. and, on receipt of the said copy of the confiscation order the clerk of the magistrate’s court concerned shall register the 55 confiscation order whereupon it shall have the effect of a civil judgment of that magistrates court. GOVERNMENT GAZE~, 4 Decem&r 1998 No. 19553 17 Prevention OF ORGANISED CRtME Am, 1998 Wet No. 121, 1998 Procedure where person absconds or dies 24. (1) If a court is satisfied that— (a) (i) a person had been charged with an offence; (ii) a person had been convicted of any offence: (iii) a restraint order had been made against a person; or (iv) there is sufficient evidence for putting a person on trial for an offence; (b) a warrant for his or her arrest had been issued and that the attendance of that person in court could not be secured after all reasonable steps were taken to execute that warrant; j (c) the proceedings against him or her cannot be resumed within a period of six 10 months due to his or her continued absence; and (d) there are reasonable grounds to believe that a confiscation order would have been made against him or her were it not for his or her continued absence, the court may, on the application by the National Director, enquire into any benefit the person may have derived from that offence. lj (2) (u) Whenever a defendant who has been convicted of an offence dies before a confiscation order is made, the court may, on the application by the National Director. enquire into any benefit the person may have derived from that offence if the court is satisfied that there are reasonable grounds to believe that a confiscation order would have been made against him or her were it not for his or her death. (b) The executor of the estate of the deceased shall be entitled to appear before the court and make representations for purposes of the enquiry referred to in paragraph (a). ~o (3) The court conducting an enquiry under this section may— (a) if the court finds that the person referred to in that subsection has so benefited, make a confiscation order and the provisions of this Part shall, with the 25 necessary changes. apply to the making of such order: (b) if a ctlrafor bonis has not been appointed in respect of any of the property concerned, appoint a cztrator bonis in respect of realizable property; and (c) authorise the realisation of the property concerned in terms of Part 4. (4) A court shall not exercise its powers under subsection (3)(a) and (c) unless it has 30 afforded all persons having any interest in the property concerned an opportunity to make representations to it in connection with the making of such orders. (5) Acou~ conducting an enquiry under subsection (2) shall not apply sections 21 and ~~. (6) If a person. excluding a person contemplated in subsection ( 1 )(a)(ii), against 35 whom a confiscation order had been made under subsection (3) is subsequently tried and— (a) convicted of one or other of the offences in respect of which the order had been made. the court convicting him or her may conduct an enquiry under section 20 and make an appropriate order: 40 (b) acquitted of the offence in respect of which the order had been made. the court acquitting him or her may make an appropriate order. PART 3 RESTRAINT O~ERS Cases in which restraint orders may be made 45 25. ( 1 ) A High Court may exercise the powers confemed on it by section 26(1 )— (a) when— (i) a prosecution for an offence has been instituted against the defendant concerned; (ii) either a confiscation order has been made against that defendant or it 50 appears to the court that there are reasonable grounds for believing that a confiscation order may be made against that defendant; and (iii) the proceedings against that defendant have not been concluded: or ( b ) when— (i) that court is satisfied that a person is to be charged with an offence; and 55 (ii) it appears to the court that there are reasonable grounds for believing that a confiscation order may be made against such person. -..—- . _—. - 18 No. 19553 GOVERNMENT G=E~. 4 December 1998 Act No. 121, 1998 PREVENTION OF ORGANISED CRIME ACT, 1998 (2) Where the High Court has made a restraint order under subsection ( 1 )(b). that court shall rescind the restraint order if the relevant person is not charged within such period as the court may consider reasonable. Restraint orders 26. (1) The National Director may by way of an ex parte application apply to a 5 competent High Court for an order prohibiting any person. subject to such conditions and exceptions as may be specified in the order, from dealing in any manner with any property to which the order relates. (2) A restraint order mav be made— . . . (a) in respect of suc~ realizable property as may be specified in the restraint order 10 and which is held by the person against whom the restraint order is being made; in respect of all realizable property held by such person, whether it is specified in the restraint order or not; in respect of all property which. if it is transferred to such person after the 15 making of the restraint order. would be realizable property. (b) (c) (3) (a) A court to which an application is made in terms of subsection ( 1 ) may make a provisional restraint order having immediate effect and may simultaneously grant a rule nisi calling upon the defendant upon a day mentioned in the rule to appear and to show cause why the restraint order should not be made final. (b) If the defendant has been absent during a periodof21 days from his or her usual place of residence and from his or her business, if any, within the Republic. the court may direct that it shall be sufficient service of that rule if a copy thereof is affixed to or near the outer door of the buildings where the court sits and published in the Gazette, or may direct some other mode of service. (c) Upon application by the defendant, the court may anticipate the return day for the purpose of discharging the provisional restraint order if 24 hours. notice of such application has been given to the applicant contemplated in subsection (1). (4) (a) A restraint order shall provide for notice to be given to persons affected by the order. (b) Any person affected by a restraint order may at any time apply for the variation or rescission of the order. (5) If it deems it necessary in the interests of justice. the High Court which made a restraint order— (a) may at any time vary or rescind the restraint order; or (b) shall rescind the restraint order if the proceedings against the defendant concerned are concluded. ~o 25 30 35 (6) Without derogating from the generality of the powers conferred by subsection (1). a restraint order may make such provision as the High Court may think fit— (a) for the reasonable living expenses of a person against whom the restraint order 40 is being made and his or her family or household: and (b) for the reasonable legal expenses of such person in connection with any proceedings instituted against him or her in terms of this Chapter or anY criminal proceedings to which such proceedings may relate. if the court is satisfied that the person whose expenses must be provided for has 45 disclosed under oath all his or her interests in property subject to a restraint order and that the person cannot meet the expenses concerned out of his or her unrestrained property. (7) A High Court making a restraint order may also make such further order in respect of the discovery of any facts including facts relating to any property over which the 50 defendant may have effective control and the location of such property as the court may consider necessary or expedient with a view to achieving the objects of the restraint order. (8) A High Court making a restraint order may, when it makes the order or at any time thereafter, make any ancillary orders that the court considers appropriate for the proper, 55 fair and effective execution of the order, including an order authonsirtg the seizure of the property concerned by a police official, (9) Property seized under subsection (8) shall be dedt with in accordance with the directions of the High Court which made the relevant preservation of property order. GOVERNMENT GAZETTE, 4 Decemkr 1998 No. 19553 19 PREVENTION OF ORGANISED CNME ACT, 1998 Wet No. 121, 1998 Seizure of property subject to restraint order 27. ( 1 ) In order to prevent any realizable property from being disposed of or removed contrary to a restraint order, any police official may seize any such property if he or she has reasonable grounds to believe that such property will be so disposed of or removed. (2) Property seized under subsection ( 1 ) shall be dedt with in accordance with the j directions of the High Court which made the relevant restraint order. Appointment of curator bortis in respect of property subject to restraint order 28. (1) Where a High Court has made a restraint order, that court may at any time— (u) appoint a curator bortis to do, subject to the directions of that court, any one or more of the following on behalf of the person against whom the restraint 10 order has been made, namely— (i) to perform any particular act in respect of any of or all the property to which the restraint order relates; (ii) to take care of the said property; (iii) to administer the said property; and (iv) where the said property is a business or undertaking, to carry on, with due regard to any law which may be applicable, the business or undertaking: (b) order the person against whom the restraint order has been made to surrender forthwith, or within such period as that court may determine. any property in respect of which a curator bonis has been appointed under paragraph (a). into 20 the custody of that c~~rator bonis. 15 (2) Any person affected by an order contemplated in subsection ( 1)(b) may at any time apply— (a) for the variation or rescission of the order; or (b) for the variation of the terms of the appointment of the curator bonis ?j concerned or for the discharge of that curator bonis. (3) me High Court which made an order contemplated in subsection (1 )(b)— (a) may at any time— ~!) vary or rescind the order; or (11) vary the terms of the appointment of the curator bonis concerned or 30 discharge that curator bonis: (b) shall rescind the order and discharge the cllrator bonis concerned if the relevant restraint order is rescinded; (c) may make such order relating to the fees and expenditure of the curator bonis as it deems fit, including an order for the payment of the fees of the curator 3j bonis— (i) from the confiscated proceeds if a confiscation order is made; or (ii) by the State if no confiscation order is made. Orders in respect of immovable property subject to restraint order 29. (1) A High Court which has made a restraint order in respect of immovable 40 property may at any time, with a view to ensuring the payment to the State— (a) where a confiscation order has not been made, of an amount equal to the most recent value of the immovable property: or (b) where a confiscation order has been made. of an amount not exceeding the amount payable under the confiscation order, 45 order the registrar of deeds concerned to endorse any one or more of the restrictions contemplated in subsection (2) on the title deed of the immovable property. (~) An order contemplated in subsection (1) May be made in respect of the fol]owin~ restrictions, namely— (a) that the immovable property shall not without the consent of the High Court 50 be mortgaged or otherwise encumbered; (b) that the immovable property shall not without the consent of the High Court be attached or sold in execution; and (c) that the immovable property shall not without the consent of the High Court— (i) vest in the Master of the High Court or trustee concerned, as the case may 55 be, when the estate of the owner of that immovable property is sequestrated: or —. . 20 No. 19553 GOVERNMENT GMEfi, 4 December 1998 Act No. 121, 1998 PREVENTION OF ORGANISED CRIME ACT, 1998 (ii) where the owner of that immovable property is a company or other juristic person which is being wound up, form part of the assets of such company or juristic person, if the owner of that immovable property has not made the payment referred to in that subsection to the State. 5 (u) (3) In order to give effect to subsection (1), the registrar of deeds concerned shall— make the necessary entries in his or her registers and the necessary endorsement on the office copy of tie title deed, and thereupon any such restriction shall be effective against rdl persons except, in the case of a restriction contemplated in subsection (2)(b), against any person in whose 10 favour a mortgage bond or other charge was registered against the title deed of immovable property prior to the endorsement of the restriction on the title deed of the immovable property, but shall lapse on the transfer of ownership of the immovable property concerned; when the original of the title deed is produced to him or her, make the 15 necessary endorsement thereon. (b) (4) Unless the High Court directs otherwise, the custody of immovable property on the title deed of which a restriction contemplated in subsection (2)(c) was endorsed shall vest as from the date on which— (a) the estate of the owner of the immovable property is sequestrated; or (b) where the owner of the immovable property is a company or other juristic 20 person, such company or juristic person is being wound up. in the person in whom the said custody would have vested if such a restriction were not so endorsed. (5) Where the High Court granted its consent in respect of a restriction contemplated 25 in subsection (2)(c) and endorsed on the title deed of immovable property, the immovable property shall be deemed— (a) if the estate of the owner of the immovable property was sequestrated, to have vested in the Master of the High Court or trustee concerned, as the case may be, as if such a restriction were not so endorsed; or (b) if the owner of the immovable property is a company or other juristic person which is being wound up. to have formed part of the assets of such company or juristic person as if such a restriction were not so endorsed. (6) Any person affected by an order contemplated in subsection (1) may at any time apply for the rescission of the order. (7) (a) The High Court which made an order contemplated in subsection (1 )— (i) may at any time rescind the order; and (ii) shall rescind the order if the relevant restraint order is rescinded or the amount payment of which is ensured by the order has with the consent of that court been paid into court. (b) If such order is rescinded. the High Court shall direct the registrar of deed5 concerned to cancel any restriction endorsed by virtue of that order on the title deed of immovable property. and that registrar of deeds shall give effect to any such direction. PART 4 REALISATION OF PROPERTY 30 35 40 45 Realisation of property 30. (1) A High Court may exercise the powers conferred upon it by subsection (2) when— (a) a confiscation order has been made against the defendant concerned; (b) such confiscation order is no longer subject to review or appeal; and ! (c) the proceedings against that defendant have not been concluded. 50 (2) A High Court may, on the application of the National Director— (a) if a curator bonis has not been appointed in respect of any of the property concerned, appoint a curator bonis in respect of realizable property; (b) subject to subsection (3), authorise a curator bonis appointed under section 55 28( 1)(a) or under paragraph (a) of this subsection, as the case may be. to realise any realizable property in such manner as that court may determine; GOVERNMENT GHE~, 4 December 1998 No. 19553 2 I Prevention OF ORGANISED CRIME ACT, 1998 Wet No. 121, 1998 (c) order any person who holds realizable property to surrender the said property forthwith into the custody of a curator bonis appointed under section 28(1 )(a) or under paragraph (a) of this subsection. as the case may be. (3) A High Court shall not exercise its powers under subsection (2)(b) unless it has afforded all persons known to have any interest in the property concerned an opportunity 5 to make representations to it in connection with the realisation of that property. (4) If the court referred to in subsection (2) is satisfied that a person— (a) is likely to be directly affected by the confiscation order: or (b) has suffered damage to or loss of property or injury as a result of an offence or related criminal activity referred to in section 18(1) which was committed by 10 the defendant, the court may allow that person to make representations in connection with the realisation of that property. (5) If the COUrt is satisfied that a person who has suffered damage to or loss of property or injury as a result of an offence or related criminal activity referred to in section 18( 1 ) [j which was committed by the defendant— (u) has instituted civil proceedings. or intends to institute such proceedings within a reasonable time: or (b) has obtained a judgment against the defendant. in respect of that damage. loss or injury. the court may order that the curator bonis 20 suspend the realisation of the whole or part of the realizable property concerned for the period that the court deems fit in order to satisfy such a claim or judgment and related legal expenses and may make such ancillary orders as it deems expedient. (6) The curator bonis shall as soon as possible after— (a) (i) the proceedings referred to in subsection (4)(a) have been disposed oti or 25 (ii) the judgment referred to in subsection (4)(b) has been satisfied. as the case may be; or (b) the period determined under subsection (4) has expired. whichever occurs first, realise the realizable property concerned as contemplated in subsection (2). 30 Application of certain sums of money 31. (1) The following sums of money in the hands of a curator bonis appointed under this Chapter, namely— (a) the proceeds of any realizable property realised by virtue of section 30: and (b) any other sums of money. being property of the defendant concerned, shall. after such payment as the High Court may direct have been made out of such sums of money, be applied on that defendant’s behalf in satisfaction of the confiscation order made against him or her: Provided that where the High Court may direct payment out of such sums of money, the State shall not have a preferential claim: Provided further that, if sums of money remain in the hands of the curator bonis after the amount payable 40 under such confiscation order has been fully paid. the curator bonis shall distribute those sums of money— 35 (i) among such persons who held realizable property which has been realised by virtue of section 30; and (ii) in such proportions. as that court may, after affording such persons an opportunity to make representations to it in connection with the distribution of those sums of money, direct. (2) Without Iirnltlng the generality of subsection ( 1 ) such payment as the High Court may direct shall, for the purposes of that subsection, include any payment in respect of an obligation which was found to have priority in terms of section 20. 4j jO Functions of curator bonis 32. (1) Immediately after letters of curatorship have been granted to a curator bonis appointed under this Chapter, the curator bonis shall take into his or her custody all the property in respect of which he or she was appointed. as well as any book, record or other document in the possession or custody or under the control of any person referred 55 to in section 28(1 )(b) or 30(2)(c) which relates to the said property. (2) Save as is otherwise provided in this Chapter, the provisions of the Administration of Estates Act, 1965 (Act No. 66 of 1965), shall with the necessary changes apply in respect of a curator bonis appointed under this Chapter. ~~ No. 19553 GOVERNMENT GUE~E, 4 December 1998 Act No. 121, 1998 PREVENTION OF ORGANISED CRIME ACT. 1998 Exercise of powers by High Court and curator bonis 33. ( 1 ) The powers conferred upon a High COUfl by sections 26 to 31. Or uPon a curator bonis appointed under this ChaDter. shall— (a) (b) (c) subject to paragraphs (b) and (~). be exercised with a view to making available the current value of realizable property for satisfying any confiscation order 5 made or which might be made against the defendant; in the case of realizable property held by a person to whom that defendant has directly or indirectly made an affected gift. be exercised with a view to realising not more than the current value of such gift; be exercised with a view to allowing any person other than that defendant or 10 -.. the recipient of such gift to retain or recover the current value of any property held by him or her. and, except as provided in sections 20(1) and 26(6), any obligation of that defendant or the recipient of such gift which conflicts with the obligation to satisfy a confiscation order shall be left out of account. (~) The pro~,lslons of subsection (1) shall not be construed as prohibiting any High 15 Court from making any additional order in respect of a debt owed to the State. Variation of confiscation orders 34. (1) If the High Court is satisfied that the realizable property is inadequate for the payment of the balance of the amount to be recovered under a confiscation order against 20 the defendant concerned, that court may, on the application of that defendant, issue a certificate to that effect stating the reasons for the court being so satisfied. (~) For tie pu~oses of subsection (1), the High Court ma~— (a} in the case of realizable property held— (i) by a person whose estate has been sequestrated, take into account the 25 extent to which the proceeds of property in that estate may be distributed among the creditors; or (ii) by a company or other juristic person which is being wound up. take into account the extent to which the assets of such company or juristic person may be distributed among the creditors; (b) leave out of account any inadequacy in the realizable property which is in the opinion of that court wholly or partly attributable to anything done by the defendant for the purpose of preserving any property held by a person to whom the defendant had directly or indirectly made an affected gift from the risk of any realisation in terms of this Chapter. 30 35 (3) (a) If a certificate referred to in subsection ( 1 ) has been issued, the defendant may apply to the court which made the confiscation order against him or her for the reduction of the amount to be recovered under that confiscation order. (b) Such court or, if the judge or judicial officer concerned is not available, any judge or judicial officer of that court may substitute for the amount to be recovered under such 40 confiscation order such lesser amount as that court may consider just in the circumstances of the case. Effect of sequestration of estates on realizable property 35. (1) When the estate of a person who holds redisable property is sequestrated— (a) the property for the time being subject to a restraint order made before the date 45 of sequestration; and (b) the proceeds of any realizable property realised by virtue of section 30 and for the time being in the hands of a curator boltis appointed under this Chapter, shall not vest in the Master of the High Court or trustee concerned, as the case may be. (2) When the estate of a defendant who has directly or indirectly made an affected gift 50 to any other person is sequestrated— (a) no court shall set aside the disposition of such gift under section 27,28 or 29 of the Insolvency Act, 1936 (Act No. 24 of 1936)— (i) if a prosecution for an offence has been instituted against the defendant and the proceedings against him or her have not been concluded; or 55 (ii) if the property of such other person is subject to a restraint order; (b} any court which sets aside any disposition contemplated in paragraph (a) after the conclusion of the proceedings against the defendant, shall take into GOVERNMENT G=ETTE, 4 December 1998 No. 19553 23 PREWNTtON OF ORGANISED CRIME ACT, 1998 Wet No. 121, 1998 account any realisation of the property of such other person in terms of this Chapter. (3) Where the estate of an insolvent has been sequestrated, the powers conferred upon a High Court by sections 26to31 and 33(2) or upon a curator bonis appointed under this Chapter, shall not be exercised— j (a) in respect of any property which forms part of that estate; or (b) in respect of any property which the trustee concerned is entitled to claim from the insolvent under section 23 of the Insolvency Act, 1936. (4) Nothing in the Insolvency Act, 1936, shall be construed as prohibiting any High Court or curator bonis appointed under this Chapter from exercising any power 10 contemplated in subsection (3) in respect of any property or proceeds mentioned in subsection (1). Effect of tinding-up of companies or other juristic persons on realizable property 36. (1) When any competent court has made an order for the winding-up of any company or other juristic person which holds realizable property or a resolution for the 15 voluntary winding-up of any such company or juristic person has been registered in terms of any applicable law— (a) no propefly for the time being subject to a restraint order made before the relevant time: and (b) no proceeds of any realizable property realised by virtue of section 30 and for 20 the time being in the hands of a curator bonis appointed under this Chapter, shall form part of the assets of any such company or juristic person. (~) Where an order mentioned in subsection (1) has been made in respect of a company or other juristic person or a resolution mentioned in that subsection has been registered in respect of such company or juristic person, the powers conferred upon a 25 High Court by sections 26 to 32 and 33(2) or upon a curator bonis appointed under this Chapter, shall not be exercised in respect of any property which forms part of the assets of such company or juristic person. (3) Nothing in the Companies Act, 1973 (Act No. 61 of 1973), or any other law relating to juristic persons in general or any particular juristic person, shall be construed 30 as prohibiting any High Court or curator bonis appointed under this Chapter from exercising any power contemplated in subsection (2) in respect of any property or proceeds mentioned in subsection (1). (4) For the purposes of subsection ( 1), “the relevant time.’ means— (a) where an order for the winding-up of the company or juristic person. as the 3j case may be, has been made, the time of the presentation to the court concerned of the application for the winding-up; or (b) where no such order has been made, the time of the registration of the resolution authonsing the voluntary winding-up of the company or juristic person, as the case may be. 40 (5) The provisions of section 35(2) are with the necessary changes applicable to a company or jufistic person who has directly or indirectly made an atiected gift. CHAPTER 6 CIVIL RECOVERY OF PROPERTY PART 1 INTRODUCTION Proceedings are civil, not criminal 37. (1) For the purposes of this Chapter all proceedings under this Chapter are civil proceedings, and are not criminal proceedings. (2) The rules of evidence applicable in civil proceedings apply to proceedings under jO this Chapter. (3) No rule of evidence applicable only in criminal proceedings shall apply to proceedings under this Chapter. (4) No rule of construction applicable only in criminal proceedings shall apply to proceedings under this Chapter. jj . . ____ 24 No. 19553 GOVERNMENT G~E~. 4 December 1998 Act No. 121.1998 PREVENTION OF ORGANISED CRIME ACT. 1998 PART 2 P~SERVATION OF PROPERTY Preservation of property orders 38. (1) The National Director may by way of an ex parte application apply to a High Court for an order prohibiting any person, subject to such conditions and exceptions as 5 may be specified in the order, from dealing in any manner with any property. (2) The High Court shall make an order referred to in subsection (1) if there are reasonable grounds to believe that the property concemed— (a) is an instrumentality of an offence referred to in Schedule 1; or (b) is the proceeds of unlawful activities. 1() (3) A High Court making a preservation of property order may, when it makes the order or at any time thereafter, make any ancillary orders that the court considers appropriate for the proper. fair and effective execution of the order. including an order authonsing the seizure of the property concerned by a police official. (4) Property seized under subsection (3) shall be dealt with in accordance with the 15 directions of the High Court which made the relevant preservation of property order. Notice of preservation of property orders 39. ( 1 ) If a High Court makes a preservation of property order. the National Director shall. as soon as practicable after the making of the order— (a) give notice of the order to all persons known to the h’ational Director to have 20 an interest in property which is subject to the order: and (12) publish a notice of the order in the Ga:efre. (2) A notice under subsection (1 )(u) shall be served in the manner in which a summons whereby civil proceedings in the High Court are commenced, is served. (3) Any person who has an interest in the property which is subject to the preservation 25 of property order may enter an appearance giving notice of his or her intention to oppose the making of a forfeiture order or to apply for an order excluding his or her interest in the property concerned from the operation thereof. (4) An appearance under subsection (3) shall be delivered to the National Director within. in the case of— 30 (a) a person upon whom a notice has been served under subsection(1)(a). 14 days after such service; or (b) any other person, 14 days after the date upon which a notice under subsection (1 )(b) was published in the Gazette. (5) An appearance under subsection (3) shall contain full particulars of the chosen 35 address for the delivery of documents concerning further proceedings under this Chapter and shall be accompanied by an affidavit stating— (a) full particulars of the identity of the person entering the appearance: (b) the nature and extent of his or her interest in the property concerned: and (c) the basis of the defence upon which he or she intends to rely in opposing a 40 forfeiture order or applying for the exclusion of his or her interests from the operation thereof. Duration of preservation of property orders

40. A preservation of property order shall expire 90 days after the date on which notice of the making of the order is published in the Ga:e~Ie unless— (a) there is an application for a forfeiture order pending before the High Court in respect of the property, subject to the preservation of property order: (b) there is an unsatisfied forfeiture order in force in relation to the property subject to the preservation of property order: or (c) the order is rescinded before the expiry of that period. Seizure of property subject to preservation of property order 41. (1) In order to prevent property subject to a preservation of property order from being disposed of or removed contra~ to that order, any police official may seize any such property if he or she has reasonable grounds to believe that such property will be so disposed of or removed. 45 50 55 GOVERNMENT GAZETTE, 4 Decemkr 1998 No. 19553 25 Prevention OF ORGANISED CRIME Am, 1998 Wet No. 121, 1998 (2) Property seized under subsection (1] shall be dealt with in accordance with the directions of the High Court which made the relevant preservation of property order. Appointment of curator bonis in respect of property subject to preservation of property order 42. ( 1 ) Where a High Court has made a preservation of property order, the High Court 5 may at any time— (a) appoint a curator bonis to do, subject to the directions of that High Court. any one or more of the following on behalf of the person against whom the preservation of property order has been made. namely— (i) (ii) (iii) to assume control over the property: to take care of the said property: to administer the said property and to do any act necessary for that purpose: and where the said property is a business or undertaking, to carrv on, with due regard to any law which may be applicable, the business or undertaking; and (iv) . . . [0 15 (b) order any person holding property subject to the preservation of property order to surrender forthwith. or within such period as that Court may determine, any such property into the custody of the c~(rator bonjs. (2) The High court which made an order under subsection ( 1 ) may make such order 20 relating to the fees and expenditure of the curaror bonjs as it deems fit, including an order for the payment of the fees of the c[{rator bonis— (a) from the forfeited property if a forfeiture order is made; or (b) by the State if no forfeiture order is made. Orders in respect of immovable property subject to preservation of property order 25 43. ( 1 ) A High Court which has made a preservation of property order in respect of immovable property may at any time, with a view to ensuring the effective execution of a subsequent order, order the registrar of deeds concerned to endorse any one or more of the restrictions referred to in subsection (2) on the title deed of the immovable property. (2) An order under subsection ( 1 ) may be made in respect of the following 30 restrictions, namely— (a) (b) (c) that the immovable property shall not without the consent of the High Court be mortgaged or otherwise encumbered; that the immovable property shall not without the consent of the High Court be attached or sold in execution; and that the immovable property shall not without the consent of the High Court— (i] vest in the Master of the High Court or trustee concerned, as the case may be. when the estate of the owner of that immovable property is sequestrated: or 3j (ii) where the owner of that immovable property is a company or other 40 corporate body which is being wound up. form part of the assets of such company or corporate body. order to give effect to subsection ( I). the registrar of deeds concerned shall— make the necessary entries in his or her registers and the necessary endorsement on the office copy of the title deed, and thereupon any such 4j restriction shall be effective against all persons except, in the case of a restriction contemplated in subsection (2)(b), against any person in whose favour a mortgage bond or other charge was registered against the title deed of immovable property prior to the endorsement of the restriction on the title deed of the immovable property, but shall lapse on the transfer of ownership 50 of the immovable property concerned; when the original of the title deed is produced to him or her, make the necessary endorsement thereon. [3) In (a) (bj (4) Unless the High Court directs otherwise, the custody of immovable property on the title deed of which a restriction contemplated in subsection (2)(c) was endorsed shall j5 vest as from the date on which— (a) the estate of the owner of the immovable property is sequestrated; or (b) where the owner of the immovable property is a company or other corporate body. such company or corporate body is being wound up. 26 No. 19553 GOWRNMENT GAZE~. 4 December 1998 Act No. 121,1998 PREVENTION OF ORGANISED CRIME ACT. 1998 in the person in whom the said custody would have vested if such a restriction were not so endorsed. (5) Where the High Court granted its consent in respect of a restriction contemplated in subsection (2)(c) and endorsed on the title deed of immovable property, the immovable property shall be deemed— (u) if the estate of the owner of the immovable property was sequestrated. to have vested in the Master of the High Court or trustee concerned. as the case may be, as if such a restriction were not so endorsed: or (b) if the owner of the immovable property is a company or other juristic person which is being wound up. to have formed part of the assets of such company or juristic person as if such a restriction were not so endorsed. (6) Any person affected by an order contemplated in subsection ( 1 ) may at any time 5 10 apply for the rescission of the order. Provision for expenses 44. (1) A preservation of prope~y order may make provision as the High Court deems 15 fit for— (a) reasonable living expenses of a person holding an interest in property subject to a preservation of property order and his or her family or household; and (b) reasonable legal expenses of such a person in connection with any proceeding instituted against him or her in te~s of this Act or any other related criminal proceedings. (2) A High COUfl shall not make provision for any expenses under subsection (1) unless it is satisfied that— (a) the person cannot meet the expenses concerned out of his or her property which is not subject to the preservation of property order: and (b) the person has disclosed under oath all his or her interests in the property and has submitted to that Court a sworn and full statement of all his or her assets and liabilities. Maximum legal expenses that can be met from preserved property 45. (1) Despite provision in a preservation of property order for the meeting of legal expenses out of any property to which the order applies. a legal expense is not to be met out of that property to the extent that the amount payable for any legal service concerned exceeds any prescribed maximum allowable cost for that service. (2) This section operates only to limit the amount of the legal expenses that a High Court may provide for under section 44 to be met out of property that is subject to a preser~ration of property order and does not limit or otherwise affect any entitlement of a legal practitioner to be paid or to recover for a legal service any amount that exceeds any applicable maximum. ~o 25 30 35 Taxation of legal expenses 46. (1) If a High Court granting a preservation of property order makes provision for 40 a persons reasonable legal expenses— (a) the National Director: or (b) the curator bonis. may apply to the High Court for an order under thi5 section. (2) The curator bonis or the National Director must give notice of an application under this section to the person concerned. (3) On an application under this section. the High Court must order that the expenses be taxed as provided in the order. (4) After an application is made for an order under this section, the cura[or bonis need not. unless ordered by the Court to do so. take any steps for the purpose of meeting the expenses as provided by the preservation of property order unless and until— (a) an order under this section in relation to the expenses is complied with: or (b) the application. and any appeal arising out of it. are finally determined, or otherwise disposed of. other than by the making of such an order. 45 50 GOVENENT GME~, 4 December 1998 No. 19553 27 PREVEN~ON OF ORGANISED CRIME ACT, 1998 Wet No. 121,1998 Variation and rescission of orders 47. (1) (a) Any person affected by a preservation of property order may at any time apply for the variation or rescission of the order. (b) A High Court which made a preservation of property order— (i) may at my time vw or rescind the presemation of propefly order if it deems 5 it necessary in the interests of justice: or (ii) shall rescind the preservation of property order if the proceedings against the defendant concerned are concluded. (2) (a) Any person affected by an order for the appointment of a c~~raror bonis may at any time apply— 10 (i) for the variation or rescission of the order; (ii) for the variation of the terms of the appointment of the curator bonis concerned; or (iii) for the discharge of the curator bonis. (b) A High Court which made an order for the appointment of a curator bonis— 1 j (i) may, if it deems it necessary in the interests of justice, at any time— (au) vary or rescind the order; (bb) vary the terms of the appointment of the curator bonis concerned: or (cc) discharge that curator bonis; (ii) shall rescind the order and discharge the cltraror bonis concerned if the 20 relevant preservation of property order is rescinded. (3) (a) Any person affected by an order in respect of immovable property may at any time apply for the rescission of the order. (b) A High Court which made an order in respect of immovable property— (i) may, if it deems it necessary in the interests of justice, at any time rescind the 25 order: or (ii) shall rescind the order if the relevant preservation of property order is rescinded. (c) If an order in respect of immovable property is rescinded. the High Court shall direct the registrar of deeds concerned to cancel any restriction endorsed by virtue of 30 that order on the title deed of immovable property, and that registrar of deeds shall give effect to any such direction. PART 3 FORFEITURE OF PROPERTY Application for forfeiture order 48. (1) If a preservation of property order is in force the National Director, may apply to a High Court for an order forfeiting to the State all or any of the property that is subject to the preservation of property order. (2) The National Director shall give 14 days notice of an application under subsection (1) to every person who entered an appearance in terms of section 42(3). (3) A notice under subsection (2) shall be served in the manner in which a summons whereby civil proceedings in the High Court are commenced. is served. (4) Any person who entered an appearance in terms of section 39(3) may appear at the application under subsection ( 1 )— (a) to oppose the mting of the order: or (b) to apply for an order— (i) excluding his or her interest in that property from the operation of the order; or (ii) varying the operation of the order in respect of that property, and may adduce evidence at the hearing of the application. Late entry of appearance 49. ( 1 ) Any person who, for any reason, did not enter an appearance in terms of section 39(3) may, within 14 days of him or her becoming aware of the existence of a presentation of property order, apply to the High Court for leave to enter such an appearance. 35 40 4j 50 j5 ----- — 28 No. 19553 GOVERNMENT GM~E. 4 December 1998 Act No. 121, 1998 PREVENTION OF ORGANISED CRIME ACT, 1998 (2) An application in terms of subsection (1) may be made before or after the date on which an application for a forfeiture order is made under section 48(1), but shall be made before judgment is given in respect of such an application for a forfeiture order. (3) The High Court may grant an applicant referred to in subsection ( 1 ) leave to enter an appearance in terms of section 39(3) within the period which the Court deems 5 appropriate, if the Court is satisfied on good cause shown that such applicant— (a) has for sufficient reason failed to enter an appearance in terms of section 39(3); and (1~) has an interest in the property which is subject to the preservation of property order. (4) When a High Court grants an applicant leave to enter an appearance, the Court— (c{) shall make any order as to costs against the applicant; and (b) may make any order to regulate the further participation of the applicant in proceedings concerning an application for a forfeiture order, which it deems appropriate. (5) An appearance entered after leave has been obtained under this section shall contain full particulars of the chosen address of the person who enters such appearance for the delivery of documents concerning further proceedings under this Chapter and shall be accompanied by an affidavit referred to in section 39(5). Making of forfeiture order jO. ( 1 ) The High Court shall, subjec[ to section 52, make an order applied for under section 48( 1 ) if the Court finds on a balance of probabilities that the property concerned— (a) is an instrumentality of an offence referred to in Schedule 1; or (1~) is the proceeds of unlawful activities. 10 15 ~o 25 (2) The High Court may. when it makes a forfeiture order or at any time thereafter. make any ancillary orders that it considers appropriate. including orders for and with respect to facilitating the transfer to the State of property forfeited to the State under such an order. (3) The absence of a person whose interest in property maybe affected by a forfeiture 30 order does not prevent the High Court from making the order. (4) The validity of an order under subsection (1) is not affected by the outcome of criminal proceedings, or of an investigation with a view to institute such proceedings, in respect of an offence with which the property concerned is in some way associated. (5) The Registrar of the Court making a forfeiture order must publish a notice thereof 35 in the Gazette as soon as practicable after the order is made. (6) A forfeiture order shall not take effect— (a) before the period allowed for an application under section 54 or an appeal under section 5j has expired: or (b) before such an application or appeal has been disposed of. Notice of reasonable grounds that property is concerned in commission of offence jl. ( 1 ) The National Director may apply to a judge in chambers or a magistrate for an order notifying a person having an interest in or control over property that there are reasonable grounds to believe that such property is an instrumentality of an offence referred to in Schedule 1. (2) The judge or magistrate shall make an order referred to in subsection (1) if the judge or magistrate is satisfied that there are reasonable grounds to believe that the property concerned is an instrumentality of an offence referred to in Schedule 1. 40 45 (3) When a judge or magistrate makes an order under subsection (1), the registrar of the High Court concerned or clerk of the Magistrate’s Court for the district concerned 50 shall issue a notice in the prescribed form to the person referred to in the order, informing him or her that there are reasonable grounds to believe that property in which he or she has an interest or over which he or she has control. is an instrumentality of an offence referred to in Schedule 1. (4) A notice issued under subsection (3) shall be served on the person concerned in the 55 manner in which a summons whereby civil proceedings in the High Court are commenced is served. . . . . . GOVERNMENT GAZE~, 4 Decemkr 1998 No. 19553 29 PMVE~ON OF ORGANISED CRWE ACT. 1998 Wet No. 121, 1998 Exclusion of interests in property 52. (1) The High Court may, on application— (a) under section 48(3); or (b) by a person referred to in section 49(4), and when it makes a forfeiture order, make an order excluding certain interests in property which is subject to the order, from the operation thereof. 5 (2) The High Court may make an order under subsection(1) if it finds on a balance of probabilities that the applicant for such an order— (a) had acquired the interest concerned legally; and (b) neither knew nor had reasonable grounds to suspect that the property in which 10 the interest is held— (i) is an instmmentality of an offence referred to in Schedule 1: or (ii) is the proceeds of unlawful activities. (3) (a) If an applicant for an order under subsection(1) adduces evidence to show that he or she did not know or did not have reasonable grounds to suspect that the property in which the interest is held, is an instrumentality of an offence referred to in Schedule 1, the State may submit a return of the service on the applicant of a notice issued under section 5 1(3) in rebuttal of that evidence in respect of the period since the date of such service. (b) If the State submits a return of the service on the applicant of a notice issued under section 5 1(3) as contemplated in paragraph (a), the applicant for an order under subsection ( 1 ) must, in addition to the facts refereed to in subsection (Z)((l) and (~)(b)(i), also prove on a balance of probabilities that, since such service, he or she has taken all reasonable steps to prevent the further use of the property concerned as an instmmentality of an offence referred to in Schedule 1. (4) A High Court making an order for the exclusion of an interest in property under subsection ( 1 ) may, in the interest of the administration of justice or in the public interest, make that order upon the conditions that the Court deems appropriate including a condition requiring the person who applied for the exclusion to take all reasonable steps, within a period that the Court may determine, to prevent the future use of the property as an instrumentality of an offence referred to in Schedule 1. Forfeiture order by default 53. (1) If the National Director applies for a forfeiture order by default and the High Court is satisfied that no person has appeared on the date upon which an application under section 48( 1) is to be heard and, on the grounds of sufficient proof or otherwise, that all persons who entered appearances in terms of section 39(3) have knowledge of notices given under section 48(2), the Court may— (a) make any order by default which the Court could have made under sections lj 20 25 30 3j 50(1) and (2); (b) make such order as the Court may consider appropriate in the circumstances; 40 or (c) make no order. (~) The High coufl may, before making an order in terms of subsection ( 1), call upon the National Director to adduce such further evidence, either in writing or orally, in support of his or her application as the Court may consider necessary. 45 (3) Any person whose interest in the property concerned is affected by the forfeiture order or other order made by the Court under subsection (1) may, within 20 days after he or she has acquired knowledge of such order or direction, set the matter down for variation or rescission by the court. (4) The court may, upon good cause shown, vary or rescind the default order or give 50 some other direction on such terms as it deems appropriate. Exclusion of interests in forfeited property 54. (1) Any person ~ected by a forfeiture order who was entitled to receive notice of the application for the order under section 48(2), but did not receive such notice, may, within 45 days after the notice of the making thereof is published in the Ga:e[te, apply for an order excluding his or her interest in the property concerned from the operation of the order, or varying the operation of the order in respect of such property. (2) The application shall be accompanied by an affidavit setting forth— j5 ...,., 30 No. 19553 GOVERNMENT GUE~E, 4 Decem~r 1998 Act No. 121.1998 PREVENTION OF ORGANISED CRIME ACT. 1998 (a) the nature and extent of the applicants right, title or interest in the property concerned; (b) the time and circumstances of the applicants acquisition of the right, title, or interest in the property; (c) any additional facts supporting the application; and (d) the relief sought. (3) The hearing of the application shall, to the extent practicable and consistent with the interests of justice be held within 30 days of the filing of the application. (4) The High Court may consolidate the hearing of the application with a hearing of any other application filed by a person under this section. (5) At the hearing, the applicant may testify and present evidence and witnesses on his or her own behalf, and may cross-examine any witness who appears at the hearing. (6) The National Director or the curator bonis concerned, or a person authorised in writing thereto by them, may present evidence and witnesses in rebuttal and in defence of their claim to the property and may cross-examine a witness who appears at the hearing. (7) In addition to the testimony and evidence presented at the hearing, the High Court may, upon application by the National Director or the curator bonis concerned, or a person authorised in writing thereto by them, order that the testimony of any witness relating to the property forfeited, be taken by commission and that any book. paper, document, record, recording, or other material not privileged be produced at the taking down of such testimony by commission. (8) The High Court may make an order under subsection(I) if it finds on a balance of probabilities that the applicant for such an order— 5 10 15 ~o (a) had acquired the interest concerned legally; and (b) neither knew nor had reasonable grounds to suspect that the property in which 25 the interest is held— (i) is an instrumentality of an offence referred to in Schedule 1; or (ii) is the proceeds of unlawful activities. (9) (a) When a person who testifies under this section— (i) fails to answer fully and to the best of his or her ability any question lawfully put to him or her; or (ii) gives false evidence knowing that evidence to be false or not believin& it to be true. he or she shall be guilty of an offence. (b) When a person who furnishes an affidavit under subsection (2) makes a false statement in the affidavit knowing that statement to be false or not believing it to be true. he or she shall be guilty of an offence. (c) A person convicted of an offence under this subsection shall be liable to the penalty prescribed by law for perjury. Appeal against forfeiture order 30 35 40 55. (1) Any person affected by a forfeiture order who appeared at the hearing of the application for a forfeiture order under section 48 may. within 30 days after the making thereof, appeal against such order. (2) Any person affected by a forfeiture order who appeared at the hearing of an 45 application for the exclusion of interests in forfeited property under section 54 may. within 30 days after such application is dismissed. appeal against such dismissal. (3) On appeal such court may make such order in the matter as it deems fit. (4) The provisions of the Supreme Court Act, 1959 (Act No. 59 of 1959), and the rules made under section 43 of that Act shall, with the necessary changes, apply to an appeal 50 made in terms of this section. Effect of forfeiture order 56. (1) Where a High Court has made a forfeiture order and a curator bonis has not been appointed in respect of any of the property concerned, the High Court may appoint a curator bonis to perform any of the functions referred to in section 59 in respect of 55 such property. (2) On the date when a forfeiture order takes effect the property subject to the order is forfeited to the State and vests in the curator bonis on behalf of the State. GOVERNMENT G~~, 4 December 1998 No. 19553 31 Prevention OF ORGANISED CRIME ACT, 1998 Wet No. 121, 1998 (3) Upon a forfeiture order taking effect the curator bonis may take possession of that property on behalf of the State from any person in possession, or entitled to possession, of the property. Fulfillment of forfeiture order 57. (1) The curator bonis must, subject to any order for the exclusion of interests in j forfeited property under section 52(2)(a) or 54(8), dispose of property forfeited under section j6(2) by sale or any other means subject to the directions of the High Court. (2) Any tight or interest in forfeited property not exercisable by or transferable to the State. shall expire and shall not revert to the person who has possession, or was entitled to possession, of the property immediately before the forfeiture order took effect. (3) No person who has possession. or was entitled to possession, of forfeited property immediately before the forfeiture order took effect, or any person acting in concert with. or on behalf of that person. shall be eligible to purchase forfeited property at any sale held by the curator bonis. 10 (4) The curator bonis shall deposit into the Criminal Assets Recovery Account any 15 proceeds of any sale or disposition of forfeited property and any moneys forfeited. (5) The expenses incurred in connection with the forfeiture and the sale. including expenses of seizure, maintenance and custody of the property pending its disposition. advertising and court costs shall be defrayed out of moneys appropriated by Parliament for that purpose. Z() PART 4 GENERAL PROVISIONS RELATING TO PRESERVATION AND FORFEITU~ OF PROPERTY Offence may form the basis of multiple orders

58. The fact that a preservation of property order or a forfeiture order has been made 25 on the basis of an offence referred to in Schedule 1 in which a specific person has been involved does not prevent the making of another or other preservation of property orders or forfeiture orders on the basis of the same otfence. Application of Chapter to deceased estates j9. ( 1 ) Any notice authorised or required to be given to a person under this Chapter 30 is, in the case of a deceased person, sufficiently given to the executor of that PersOn’s estate. (2) A reference in this Chapter to property of a person is, in the case of a person who is deceased. a reference to property that the person held immediately before his or her death. 35 (3) An order may be applied for and made under this Chapter— (a) in respect of property which forms part of a deceased estate; and (b) on evidence adduced concerning the activities of a person who is deceased. Effect of death of joint owner of preserved property 60. ( 1 ) If a person has an interest in property as joint owner of the property. the 40 person’s death after a preservation of property order is made in respect of the interest does not, while the order is in force, operate to vest the interest in the surviving joint owner or owners and the preservation of property order continues to apply to the interest as if the person had not died. (2) A forfeiture order made in respect of that interest applies as if the order took effect 45 in relation to the interest immediately before the person died. (3) Subsection (1) does not apply to an interest in property if a preservation of property order ceases to apply to that interest without a forfeiture order being made in respect of that interest. Expedition of applications 50 61. (a) In any application instituted under this Chapter by the State, the National 32 No. 19553 GOVERNME~ GUETTE, 4 December 1998 Act No. 121.1998 PWVENTION OF ORGANISED CRIME ACT. 1998 Director may file with the Registrar of the High Court concerned a certificate stating that in his or her opinion the case is of general public importance. (L) A copy of that certificate shall be furnished immediately by such Registrar to the Judge President of the High Court concerned or in his or her absence to the Acting Judge President or the Deputy Judge President of that Court. 5 (c) Upon receipt of such copy. such Judge President. Acting Judge President or Deputy Judge President, as the case may be, shall designate immediately a judge of that High Court to hear and determine the application. Procedure and rules of court 62, (1) The Rules Board for Courts of Law referred to in section 1 of the Rules Board 10 for Courts of Law Act, 1985 (Act No. 107 of 1985), shall. in consultation with the Minister and after consultation with the National Director. with due regard to the purpose of this Act m~e rules for— (u) the High Court regulating the proceedings contemplated in Chapters 5 and 6: (b) the magistrates court regulating the proceedings referred to in section 53. (2) In the absence of such rules the provisions of the Supreme Court. 1959 (Act No. 59 of 1959). and the rules made under section 43 of that Act and the provisions of the Magistrate’s Court Act. 1944 (Act No. 32 of 1944), and the rules made under section 6 of the Rules Board for Courts of Law Act, 1985 (Act No. 107 of 1985). as the case may be. shall, with the necessary changes. apply in relation to proceedings in terms of such 20 hearing except in so far as those rules are inconsistent with procedures prescribed in this Chapter. 15 CHAPTER 7 CRIMINAL ASSETS RECOVERY ACCOUNT Establishment of Criminal Assets Recovery Account 25

78. Any person generally or specifically authorised to perform any function in terms of this Act. shall not, in his or her personal capacity, be liable for anything done in good faith under this Act. 30 Amendment and repeal of laws 79. (a) The International Co-operation in criminal Matters Act. 1996 (Act NO 75 Of 1996), is hereby amended to the extent set out in Schedule 2. (b) The Drugs and Drug Trafficking Act, 1992 (Act No. 140 of 1992), is hereby amended to the extent set out in Schedule 3. (c) The Proceeds of Crime Act. 1996 (Act No. 76 of 1996). is hereby repealed. Transitional arrangements 80. ( 1 ) The person designated for purposes of section 31 of the Proceeds of Crime Act. 1996 (Act No. 76 of 1996), and any curator bonis. trustee or other functionmy appointed in terms of the provisions of that Act shall, at the commencement of this Act, be deemed to have been duly designated or appointed to the corresponding position under this Act and shall continue to hold office in accordance with tie applicable laws. (2) All proceedings which immediately before the commencement of this Act were instituted in terms of the provisions of the Proceeds of Crime Act. 1996, and which proceedings were pending before any court of law or reviewing authority shall be dealt with as if this Act had not been passed. Short title and commencement 35 40 45 81. (1) This Act shall be called the Prevention of Organised Crime Act, 1998, and shall come into operation on a date fixed by the President in the Gazette. (2) Different dates may be fixed in respect of different provisions of this Act. 50 GOVERNM~T G~~, 4 December 1998 No. 19553 37 PRE~~ON OF ORGAMSED CR~E ACT, 1998 Wet No. 121, 1998 SC~DULE 1 (Sections 1,38,50,51,52,54,58 and 73) 1 2. 3. 4, 5. 6. 7. 8. 9. 10, 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. ~2. 23. 24. 25. 26, 27. 28, 29. 30. 31. 32. 33. 34. murder; rape; kidnapping; arson; public violence; robbery; assault with intent to do grievous bodily harm; indecent assault; the statutory offence of— (a) unlawful carnal intercourse with a girl under a specified age; (b) committing an immoral or indecent act with a girl or a boy under a specified age; (c) soliciting or enticing such girl or boy to the commission of an immoral or indecent act; any offence under any legislation dealing with gambling, gaming or lotteries: contravention of section 20(1) of the Sexual Offences Act, 1957 (Act No. 23 of 1957); any offence contemplated in section 1(1) of the Corruption Act, 1992 (Act No. 94 of 1992); extortion; childstealing; breaking or entering any premises whether under the common law or a statutory provision, with intent to commit an offence; malicious injury to property; theft, whether under the common law or a statutory provision; any offence under section 36 or 37 of the General Law Amendment Act, 1955 (Act No. 62 of 1955); fraud; forgery or uttering a forged document knowing it to have been forged: offences relating to the coinage; any offence referred to in section 13 of the Drugs and Drug Trafficking Act. 1992 (Act No. 140 of 1992); any offence relating to the dealing in or smuggling of ammunition, firearms. explosives or armament and the unlawful possession of such firearms. explosives or armament; any offence in contravention of section 36 of the Arms and Ammunition Act, 1969 (Act No. 75 of 1969); dealing in, being in possession of or conveying endangered, scarce and protected game or plants or parts or remains thereof in contravention of a statute or provincial ordinance; any offence relating to exchange control; any offence under any law relating to the illicit dealing in or possession of precious metals or precious stones; any offence contemplated in sections 1 ( 1 ) and 1A(1) of the Intimidation Act. 1982 (Act No. 72 of 1982); defeating or obstructing the course of justice: perjury; subornation of perjury; any offence referred to in Chapter 3 or 4 of this Act; any offence the punishment wherefor may be a period of imprisonment exceeding one year without the option of a fine; any conspiracy, incitement or attempt to commit any offence referred to in this Schedule. . . . . . . . . 38 No. 19553 GOVERNMENT GWE~E, 4 December 1998 Act No. 121, 1998 PREVENTION OF ORGA~SED CRIME ACT. 1998 SCHEDULE 2 Amendment of the International Co-operation in Criminal Matters Act, 1996 (Act No. 75 of 1996) (Section 79) 1, The amendment of section 1 by— (a) the substitution for the definition of “confiscation order” of the following definition: “ ‘confiscation order’ means a confiscation order made under the Proceeds of Crime Act, 1996, and includes a forfeiture order made under the Prevention of Organised Crime Act, 1998;”; and (b) the substitution for the definition of “restraint order”, of the following definition: “ ‘restraint order’ means a restraint order made under the Proceeds of Crime Act, 1996. and includes a [restraining] preservation of propertv order made under the Prevention of Organised Ctime Act, 1998:’.. GOVERNMENT GAZE~, 4 Decemkr 1998 No. 19553 39 P~V~ON OF ORGANISED CRIME ACT, 1998 Wet No. 121, 1998 SCHEDULE 3 Amendment to Sections of the Drugs and Drug Trafficking Act, 1992 (Act No. 140 of 1992) (Section 79)

1. Amendment of section 1 by— (a) the deletion of the definition of “convert”; (b) the deletion of the definition of “defined crime”: (c) the deletion of the definition of ‘economic offence”; (d) the deletion of the definition of “financial institution”; and (e) the deletion of the definition of “proceeds”.

2. The repeal of section 6.

3. The repeal of section 7.

4. The amendment of section 9 by the substitution for subsection ( 1 ) of the following subsection: “(1 ) Any person may, notwithstanding anything to the contrary contained in any law which prohibits him or her— (a) from disclosing any information relating to the affairs or business of any other person; or (b) from permitting any person to have access to any registers, records or other documents which have a bearing on the said affairs or business, disclose to any attorney-general or designated officer such information as he or she may consider necessary for the prevention or combatting, whether in the Republic or elsewhere, of a drug offence [or an economic offence, or permit any designated officer to have access to any registers, records or other documents which may in his opinion have a bearing on the latter information.]”.

5. The amendment of section 10 by the deletion of subsection (2).