127. Non-conviction based forfeiture proceedings

Following the completion of an investigation into property suspected to be proceeds of crime and ordinarily a judicial freezing order has been made by the High Court in respect of such property, the Attorney-General or the

The contents of such application shall be supported by an affidavit by the relevant Investigation Officer and to the application shall be attached any such document or other evidence as may be necessary to establish prima facie that the property in respect of which the application is made is proceeds of crime.

The Attorney-General shall not be entitled to institute proceedings under this provision seeking an order of non-conviction based forfeiture of proceeds of crime, unless a notice had been served in terms of section 68 of this Act and the person to whom such notice had been served had defaulted in submitting an explanation in the manner provided by this

Upon a filing of an application, the High Court shall direct the relevant Designated Officer to publish a notice in the manner directed by Court.

The notice pertaining to the filing of the application shall be issued to the following parties and to any other party the High Court deems necessary:-

The High Court shall in notice pertaining to the filing of the application, announce the date before which any party seeking the return, possession or entitlement to use or control the frozen property shall present its claims to Court.

Any party, including a party to whom the notice pertaining to the filing of the application has not been served, seeking a declaration of any right or interest or entitlement to possess or use a frozen property, shall be entitled to present its claim in that regard to the High Court.

A claim presented to the High Court under this Part of this Act shall be in the form of a statement of claim together with an affidavit and necessary evidentiary documents attached thereto.

The Competent Authority of any sovereign state shall be entitled to present a claim with regard to a frozen property on the premise that such property has been derived out of the committing of an unlawful activity in relation to the public funds or other property of such country:

It shall be lawful for the Attorney-General to make an application under this section on behalf of the competent authority of any sovereign state.

Upon the filing of claims, the Court shall afford an opportunity to all parties to study each other’s claims and if they wish file statements of objections accompanied with an affidavit and supporting documents, if any, or counter claims in the manner provided with regard to claims.

Following the filing of claims, counter claims and statements of objections, the High Court shall fix the matter for inquiry, and upon the conduct of such inquiry, determine whether the property in respect of which the application has been filed shall be forfeited or shall be released to a party entitled in law to its possession or use.

In an Inquiry conducted under this section, oral evidence shall be led, only if under exceptional circumstances the Court grants permission in that regard on the basis that such oral evidence is necessary for the determination of the matter.

In proceedings under this section, the High Court may apply the presumption contained in section 34 for the purpose of determining whether the property in respect of which proceedings have been instituted is proceeds of crime, and determining the legitimacy of a claim by any person for the release of the property in respect of which proceedings have been instituted.

A party seeking to gain control or possession of the property in respect of which action has been instituted, shall establish a lawful claim on a balance of probability and to a threshold which exceeds the threshold that may have been established by any other claimant.

If following inquiry, the High Court forms the view that the property in respect of which proceedings have been instituted is a property of any particular victim of crime, the Court shall make order directing that the property be returned to such victim of crime.

If the High Court following inquiry determines that –

If following inquiry, the High Court determines that only a portion in respect of which proceedings have been instituted under this section for non-conviction based forfeiture of proceeds of crime, the Court shall following the determination of the value of the relevant proceeds of crime make Order that the property be forfeited to the state and the state making a payment to the party entitled to the remaining portion of the value.

If the High Court directs that a claimant has on a balance of probability presented a lawful claim for such property, the High Court shall make order directing that the property in respect of which proceedings were instituted be released to such claimant.

If the High Court determines that the property in respect of which proceedings have been instituted belongs to a claimant who is a victim of the corresponding crime, it shall make order releasing the property to such victim of crime.

If the High Court determines that the property in respect of which the proceedings have been instituted is the public property of a requesting foreign state which has through its competent authority presented a claim, it shall make order subject to the provisions contained in this Act, releasing the property or part thereof or its value to the requesting foreign state.

If the Court makes an order for forfeiture of the property, it shall be forfeited to the state and the Secretary to the Treasury shall take possession thereof and deal with such property in terms of this Act.

If the Court is of the view that a claimant has on a balance of probability established that he is the lawful owner of such property, the Court shall vacate the judicial freezing order and release such property to such claimant.

The forfeiture of any property in terms of the non–

If during proceedings under this section, on evidence placed before Court and further evidence, if any, called for and examined by court, the court becomes satisfied that the property in respect of which forfeiture proceedings has been instituted comprises partly of proceeds of crime and partly of property which does not constitute proceeds of crime, the court shall obtain a valuation of such property and determine the percentage value of such property which constitutes proceeds of crime.

Where one or more parties present a claim in respect of such property and as provided in this Act on a balance of probability establish such claim, the court shall direct that the percentage value of such property corresponding to such established claim which does not relate to proceeds of crime become the entitlement of such claimant.

The court shall direct the disposal of such property in the manner provided by this Act and upon realization of the value thereof direct the Registrar of the court to make payment in the sum determined by the court to the claimant and direct the forfeiture of the remaining sum of money which corresponds to the percentage value of the proceeds of crime to be forfeited to the state.