Intellectual Property Rights from Publicly Financed Research and
R 385
Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998)Chapter 6 : Civil Recovery of PropertyPart 3 : Forfeiture of Property52. Exclusion of Interests in Property |
| (1) | The High Court may, on application— |
| (a) | under section 48(3); or |
| (b) | by a person referred to in section 49(1), |
[Section 52(1)(b) amended by section 29(a) of Act No. 24 of 1999]
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.
| (2) | The High Court may make an order under subsection (1), in relation to the forfeiture of the proceeds of unlawful activities, if it finds on a balance of probabilities that the applicant for the order— |
| (a) | had acquired the interest concerned legally and for a consideration, the value of which is not significantly less than the value of that interest; and |
| (b) | where the applicant had acquired the interest concerned after the commencement of this Act, that he or she neither knew nor had reasonable grounds to suspect that the property in which the interest is held is the proceeds of unlawful activities. |
[Section 52(2) amended by section 9 of Act No. 38 of 1999]
| (2A) | The High Court may make an order under subsection (1), in relation to the forfeiture of an instrumentality of an offence referred to in Schedule 1 or property associated with terrorist and related activities, if it finds on a balance of probabilities that the applicant for the order had acquired the interest concerned legally, and— |
| (a) | neither knew nor had reasonable grounds to suspect that the property in which the interest is held is an instrumentality of an offence referred to in Schedule 1 or property associated with terrorist and related activities; or |
| (b) | where the offence concerned had occurred before the commencement of this Act, the applicant has since the commencement of this Act taken all reasonable steps to prevent the use of the property concerned as an instrumentality of an offence referred to in Schedule 1 or property associated with terrorist and related activities. |
[Section 52(2A) amended by section 27(1) of Act No. 33 of 2004]
| (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 or property associated with terrorist and related activities, the State may submit a return of the service on the applicant of a notice issued under section 51(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 51(3) as contemplated in paragraph (a), the applicant for an order under subsection (1) must, in addition to the facts referred to in subsection (2)(a) and (2)(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 instrumentality of an offence referred to in Schedule 1. |
[Section 52(3) amended by section 27(1) of Act No. 33 of 2004]
| (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 or property associated with terrorist and related activities. |
[Section 52(4) amended by section 27(1) of Act No. 33 of 2004]
