RRLLB81 Assignment 3 PORTFOLIO (DETAILED ANSWERS) Semester 1 2026 - DISTINCTION GUARANTEED - Organised crime, forfeiture of criminal proceeds and the concept of instrumentality

RRLLB81 Assignment 3 PORTFOLIO (DETAILED ANSWERS) Semester 1 2026 - DISTINCTION GUARANTEED - DISTINCTION GUARANTEED - DISTINCTION GUARANTEED Answers, guidelines, workings and references. ORGANISED CRIME, FORFEITURE OF CRIMINAL PROCEEDS AND THE CONCEPT OF INSTRUMENTALITY Background The most useful technique in combating organised crime is not only to capture and convict the outlaws, but also to deprive criminals the proceeds of unlawful activities. This may include the forfeiture of the proceeds of crime, and the confiscation of certain properties. The Prevention of Organised Crime Act (POCA) 121 of 1998 was introduced by the Legislature inter alia to provide for a civil remedy for the preservation and seizure, and forfeiture of property which is derived from unlawful activities or is concerned in the commission or suspected commission of an offence. Strictly speaking, not only the express proceeds of crime may be confiscated. Section 38 empowers the court to make ‘preservation of property orders’ if there are reasonable grounds to believe that the property concerned (a) is an instrumentality of an offence referred to in Schedule 1; or (b) is the proceeds of unlawful activities. In other words, property may be confiscated which, even though it is not directly implicated in the commission of the offence, nonetheless, forms an integral component of the offence. The property is labelled an instrumentality of the crime, thus subject to forfeiture, mainly to deprive the criminal further use of the property to commit crime. This could be an appropriate method that could hinder criminal activities. Conduct research and investigate why the concept of instrumentality and/or forfeiture of criminal proceeds are useful for law enforcement. Equally investigate whether one or two of these legal tools is bad law and unreasonably deprive people of their property. Strictly speaking, not only the express proceeds of crime may be confiscated. Section 38 empowers the court to make ‘preservation of property orders’ if there are reasonable grounds to believe that the property concerned (a) is an instrumentality of an offence referred to in Schedule 1; or (b) is the proceeds of unlawful activities. In other words, property may be confiscated which, even though it is not directly implicated in the commission of the offence, nonetheless, forms an integral component of the offence. The property is labelled an instrumentality of the Downloaded by Pied Zulu () lOMoARcPSD| RRLLB81/103/1/2026 59 crime, thus subject to forfeiture, to deprive the criminal further use of the property to commit crime. This could be an appropriate method that could hinder criminal activities. Conduct research and investigate why the concept of instrumentality and/or forfeiture of criminal proceeds are useful for law enforcement. Equally investigate whether one or two of these legal tools is bad law and unreasonably deprive people of their property. Cases National Director of Public Prosecutions v RO Cook Properties (Pty) Ltd; National Director of Public Prosecutions v 37 Gillespie Street Durban (Pty) Ltd; National Director of Public Prosecutions v Seevnarayan [2004] 2 All SA 491 (SCA) Prophet v National Director of Public Prosecutions 2007 (6) SA 169 (CC) Books Kruger A, Organised Crime and Proceeds of Crime Law in South Africa (2nd edn, LexisNexis 2013) Von Lampe K, Organized Crime: Analyzing Illegal Activities, Criminal Structures and Extra-Legal Governance (Sage 2015) Legislation Criminal Procedure Act 51 of 1977 Drugs and Drug Trafficking Act 140 of 1992 Prevention of Organised Crime Act 121 of 1998 Journal Articles Basdeo V, ‘The Law and Practice of Criminal Asset Forfeiture in South African Criminal Procedure: A Constitutional Dilemma’ (2014) 17 PELJ 1048 Nkoane P, ‘The Prevention of Organised Crime Act: The Proving of “Instrumentality” in Cases of Obscured Use of Intangible Things’ (2016) 27 Stell LR 182