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Drugs and Drug Trafficking Act, 1992 (Act No. 40 of 1992)

Chapter IV : Offences, Penalties, Presumptions and Forfeiture

Forfeiture

26. Interests of third parties

 

(1) A declaration of forfeiture shall not affect any interest which any person other than the convicted person may have in the property, animal, vehicle, vessel, aircraft, container, article or immovable property in question, if he proves—
(a) in the case of any property referred to in paragraph (a) of section 25(1)—
(i) that he acquired the interest in that property in good faith and for consideration, whether in cash or otherwise; and
(ii) that the circumstances under which he acquired the interest in that property were not of such a nature that he could reasonably have been expected to have suspected that it was the proceeds of a defined crime:
(b) in the case of any animal, vehicle, vessel, aircraft, container, article or immovable property referred to in paragraph (b) or (c) of section 25(1)—
(i) that he did not know that the animal, vehicle, vessel, aircraft, container or article in question was used or would be used as contemplated in the said paragraph (b), or that the immovable property in question was used or would be used as contemplated in the said paragraph (c), as the case may be; or
(ii) that he could not prevent such use.

 

(2)
(a) Subject to the provisions of subsection (1), the court concerned or, if the judge or judicial officer concerned is not available, any judge or judicial officer of that court may at any time within a period of three years from the date of the declaration of forfeiture, on the application of any person other than the convicted person who claims that he has any interest in the property, animal,  vehicle, vessel, aircraft, container, article or immovable property in question, inquire into and determine any such interest.
(b) If a court referred to in paragraph (a) finds—
(i) that the property, animal, vehicle, vessel, aircraft, container, article or immovable property is wholly owned by the applicant, the court shall set aside the declaration of forfeiture in question and direct that the property, animal, vehicle, vessel, aircraft, container, article or immovable property, as the case may be, be returned to the applicant or, if the State has disposed of it, direct that the applicant be compensated by the State to the extent to which the State has been enriched by the disposal;
(ii) that the applicant has an interest in the property, animal, vehicle, vessel, aircraft, container, article or immovable property—
(aa) the court shall direct that the property, animal, vehicle, vessel, aircraft, container, article or immovable property, as the case may be, be sold by public auction and that the applicant be paid out of the proceeds of the sale an amount equal to the value of his interest therein, but not exceeding the proceeds of the sale;
(bb) if the State has disposed of the property, animal, vehicle, vessel, aircraft, container, article or immovable property in question, the court shall direct that the applicant be compensated by the State in an amount equal to the value of his interest therein, but not exceeding the enrichment of the State by the disposal.

 

(3) Any person aggrieved by a determination made by the court under subsection (2), may appeal against the determination as if it were a conviction by the court making the determination, and such appeal may be heard either separately or jointly with an appeal against the conviction as a result of which the declaration of forfeiture was made, or against a sentence imposed as a result of such conviction.