The Asset Forfeiture Unit (AFU) and Bond of Security for a Curator Bonis

The main aim of the AFU is to take the profit out of crime

The Asset Forfeiture Unit (AFU) is a branch of the National Prosecuting Authority. Its mission is to "take the profit out of crime". In other words, the unit aims to ensure that crime does not pay by removing the benefits derived from criminal activity. The Asset Forfeiture Unit targets the proceeds of certain crimes in particular, namely economic crime (e.g. fraud and 419 scams), corruption, cases involving natural resources, brothels, drugs, precious metals, violent crimes such as robbery, housebreaking, theft and the possession of stolen property.

History of the Asset Forfeiture Unit

The AFU was established in May 1999 in the Office of the National Director of Public Prosecutions to focus on the implementation of Chapters 5 and 6 of the Prevention of Organised Crime Act (No. 121 of 1998.) The main function of the unit is to exercise the State's right to seize criminal assets in the fight against crime, particularly organised crime.

How Are Assets Seized?

Assets can be seized only once a court order has been obtained. The AFU investigators and advocates cannot be summoned to a crime scene and order goods to be seized. Only after a court order has been granted by the High Court may the goods be seized. After a case has been referred to the AFU, the matter is referred to the investigators for investigation. Other investigations try to find out whether items of property have been used to commit crimes. Such investigations explore questions such as the following:
* Was the house or vehicle previously used to commit crimes?
* Are the suspects members of an illegal syndicate?
* Is the property in some way essential to their illegal operations?

After the case has been investigated, it is handed to an advocate to draft legal papers. In order for asset forfeiture to occur, a court order has to be obtained. Asset forfeiture proceedings are civil proceedings. The standard of proof is therefore proof on a balance of probabilities and not beyond a reasonable doubt. This makes it easier to obtain such orders. Different kinds of order can be obtained, depending on the facts of the case. These are:
* Restraint orders
* Confiscation orders
* Preservation orders
* Forfeiture orders

Restraint and Confiscation Orders

The first two orders, namely restraint and confiscation orders, depend on whether there has been a prosecution of a criminal and his/her conviction. In order to obtain these orders, it has to be shown that the accused benefited from his/her offence, and what the amount of that benefit was. The advocate seeks a confiscation order for the amount for which the accused benefited from his/her crime(s). There are provisions in the Prevention of Organised Crime Act that increase the amount that can be requested from the Court in the confiscation order. This is, for example, in cases where the accused has previously been engaged in related-criminal activities. Another example is where the accused cannot justify owning assets, i.e. he or she cannot show that the assets are derived from a legitimate source of income. The value of those assets is calculated. A confiscation order is sought in the amount of the value of the property. A restraint order is usually obtained prior to a confiscation order being made after the accused’s conviction. The accused’s property is seized or restrained before his/her conviction to ensure that property is available to be sold later to pay the confiscation order that may be made should the accused be convicted.

Preservation and Forfeiture Orders

The latter two orders, namely preservation and forfeiture orders, do not depend on a prosecution. Some evidence of criminal activity is, however, required. It has to be proved that the particular property, like a house or vehicle, is the proceeds of crime and/or an instrumentality of an offence. These orders target specific items of property like the house or car of the accused. The property has to be tainted in some way.

What Happens after an Order has Been Obtained?

Once an order has been granted by the relevant High Court, the assets need to be seized and stored to be sold later once a final order has been obtained. An independent person is appointed in the court order to seize the assets and preserve them until such order has been issued. This person is referred to as the curator bonis. A specific date is arranged for when the court order will be executed and the assets seized by the curator bonis. This is usually undertaken with the assistance of SAPS. The court order is formally served on the suspect and/or other relevant parties by the sheriff of the court.

Appointed Curator Bonis and a Bond of Security

The appointed Curator Bonis will be required to provide a Bond of Security on appointment. The Value of the Bond of Security is determined by the AFU for the value of the Assets