Constitutional application

Pillay, Anashri

Constitutional application

Journal Article

2003

Journal Title

South African Journal of Criminal Justice

Link to Journal

http://reference.sabinet.co.za/sa_epublication/ju_sajcj

Publisher

University of Cape Town

Department

Department of Public Law

Faculty

Faculty of Law

Abstract

National Director of Public Prosecutions v Mohamed NO 2003 (1) SACR 561 (CC) was an appeal against a finding that s 38 of the Prevention of Organised Crime Act 1998 was unconstitutional. In essence, the section allowed the National Director of Public Prosecutions (NDPP) to use an ex parte procedure to apply to the High Court for a preservation of property order (at para 1). The High Court had to make the order `if there are reasonable grounds to believe that the property concerned ± is an instrumentality of an offence referred to in Schedule 1; or is the proceeds of unlawful activities' (at para 14). The High Court held that s 38 should be read as if the words `by way of an ex parte application' did not appear in the section. The court also found that s 38 did not allow for a rule nisi procedure and that this was unconstitutional (at paras 8 and 9). Other challenges against the Act were dismissed by the High Court and the respondent did not challenge these findings in the appeal (at paras 9 and 10).

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