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Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998)

Chapter 5 : Proceeds of Unlawful Activities

Part 2 : Confiscation Orders

18. Confiscation orders


(1) Whenever a defendant is convicted of an offence the court convicting the defendant may, on the application of the public prosecutor, enquire into any benefit which the defendant may have derived from—
(a) that offence;
(b) any other offence of which the defendant has been convicted at the same trial; and
(c) any criminal activity which the court finds to be sufficiently related to those offences,

and, if the court finds that the defendant has so benefited, the court may, in addition to any punishment which it may impose in respect of the offence, make an order against the defendant for the payment to the State of any amount it considers appropriate and the court may make any further orders as it may deem fit to ensure the effectiveness and fairness of that order.


(2) The amount which a court may order the defendant to pay to the State under subsection (1)—
(a) shall not exceed the value of the defendant's proceeds of the offences or related criminal activities referred to in that subsection, as determined by the court in accordance with the provisions of this Chapter; or
(b) if the court is satisfied that the amount which might be realised as contemplated in section 20(1) is less than the value referred to in paragraph (a), shall, not exceed an amount which in the opinion of the court might be so realised.


(3) A court convicting a defendant may, when passing sentence, indicate that it will hold an enquiry contemplated in subsection (1) at a later stage if—
(a) it is satisfied that such enquiry will unreasonably delay the proceedings in sentencing the defendant; or
(b) the public prosecutor applies to the court to first sentence the defendant and the court is satisfied that it is reasonable and justifiable to do so in the circumstances.


(4) If the judicial officer who convicted the defendant is absent or for any other reason not available, any judicial officer of the same court may consider an application referred to in subsection (1) and hold an enquiry referred to in that subsection and he or she may in such proceedings take such steps as the judicial officer who is absent or not available could lawfully have taken.


(5) No application referred to in subsection (1) shall be made without the written authority of the National Director.


(6) A court before which proceedings under this section are pending, may—
(a) in considering an application under subsection (1)—
(i) refer to the evidence and proceedings at the trial;
(ii) hear such further oral evidence as the court may deem fit;
(iii) direct the public prosecutor to tender to the court a statement referred to in section 21(1)(a); and
(iv) direct a defendant to tender to the court a statement referred to in subsection (3)(a) of that section;
(b) subject to subsection (1)(b) or (3)(b) of section 21, adjourn such proceedings to any day on such conditions not inconsistent with a provision of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), as the court may deem fit.