Housing Development Agency Act, 2008
R 385
Regulation of Interception of Communications and Provision of Communication-Related Information Act, 2002 (Act 70 of 2002)Chapter 9 : Criminal proceedings, offences and penalties57. Forfeiture of listed or other equipment |
| (1) | A court convicting a person of an offence referred to in section 51 must, in addition to any penalty which it may impose in respect of that offence, declare any listed equipment— |
| (a) | by means of which the offence was committed; |
| (b) | which was used in connection with the commission of the offence; |
| (c) | which was found in the possession of the convicted person; or |
| (d) | the possession of which constituted the offence, to be forfeited to the State. |
| (2) | A court convicting a person of an offence referred to in section 51 may, in addition to any penalty which it may impose in respect of that offence, declare any equipment, other than listed equipment— |
| (a) | by means of which the offence was committed; |
| (b) | which was used in connection with the commission of the offence; |
| (c) | which was found in the possession of the convicted person; or |
| (d) | the possession of which constituted the offence, to be forfeited to the State. |
| (3) | Any listed equipment or other equipment declared forfeited under subsection (1) or (2) must, as soon as practicable after the date of declaration of forfeiture, be delivered to the Police Service. |
| (4) | Any listed equipment or other equipment delivered to the Police Service in terms of subsection (3) must, in the case of— |
| (a) | (FAQ) listed equipment declared forfeited under subsection (1), be kept by the Police Service— |
| (i) | for a period of four months with effect from the date of declaration of forfeiture; |
| (ii) | if an application referred to in subsection (6)(FAQ) is made, until a final decision in respect of any such application has been given; or |
| (iii) | if an application referred to in subsection (1)(FAQ) is made, until a final decision in respect of any such application has been given, and must— |
| (aa) | as soon as practicable after the expiry of the period referred to in subparagraph (i); |
| (bb) | if the decision referred to in subparagraph (ii) has been given against the telecommunication service provider or other person concerned, as soon as practicable after that decision has been given; or |
| (cc) | if an application referred to in subparagraph (iii) has been refused, as soon as practicable after such refusal; or |
| (b) | equipment declared forfeited under subsection (2), be kept by the Police Service— |
| (i) | for a period of 30 days with effect from the date of declaration of forfeiture; and |
| (ii) | must as soon as practicable after the expiry of the period referred to in subparagraph (i), be destroyed by the Police Service. |
| (5) | A declaration of forfeiture under subsection (1) does not affect any right which any telecommunication service provider or other person, other than the convicted person, may have to such listed equipment, if it is proved that such telecommunication service provider or other person— |
| (a) | has been exempted, under section 46(1)(FAQ), from the relevant prohibited act referred to in section 45(1) in respect of such listed equipment; |
| (b) | could not reasonably be expected to have known or had no reason to suspect that the listed equipment concerned was being or would be used in connection with the offence; and |
| (c) | had taken all reasonable steps to prevent the use thereof in connection with the offence. |
(6)
| (a) | The court in question or, if the judge or judicial officer concerned is not available, any other judge or judicial officer of the court in question, may upon an application made at any time within a period of three months with effect from the date of declaration of forfeiture under subsection (1), by any telecommunication service provider or other person, other than the convicted person, who claims that— |
| (i) | the listed equipment declared forfeited under subsection (1) is his or her property; and |
| (ii) | he or she is a person referred to in subsection (5), inquire into and determine those matters. |
| (b) | if the court referred to in paragraph (a) is satisfied that the— |
| (i) | listed equipment concerned is the property of the telecommunication service provider or other person concerned; and |
| (ii) | telecommunication service provider or other person concerned is a person referred to in subsection (5), the court must set aside the declaration of forfeiture and direct that the listed equipment concerned be returned to such telecommunication service provider or other person. |
| (c) | If a determination by the court under paragraph (b) is adverse to the applicant, he or she may appeal therefrom 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 whereof the declaration of forfeiture under subsection (1) was made, or against a sentence imposed as a result of such conviction. |
| (d) | When determining the matters referred to in paragraph (FAQ)(i) and (ii), the record of the criminal proceedings in which the declaration of forfeiture under subsection (1) was made, must form part of the relevant proceedings, and the court making the determination may hear such additional evidence, whether by affidavit or orally, as it deems fit. |
(7)
| (a) | The Minister may, if an application referred to in subsection (6)FAQ)— |
| (i) | has not been made, upon an application made at any time after a period of three months with effect from the date of declaration of forfeiture under subsection (1) but before the expiry of a period of four months from that date; or |
| (ii) | has been made and the declaration of forfeiture has not been set aside, upon an application made at any time within a period of one month with effect from the date on which a final decision in respect of that application has been given, in terms of section 46(1)(FAQ)(iii) exempt the law enforcement agency which made the application from possessing the listed equipment declared forfeited under subsection (1). |
| (b) | Section 46 applies with the necessary changes in respect of an application referred to in paragraph (a). |
