It must be noted that the NDPP is empowered by POCA to seek forfeiture of property deemed to be the proceeds of unlawful activities or instrumentalities of crime. In particular:

• Section 50(1) of POCA mandates the High Court to grant a forfeiture order if it is established on a balance of probabilities that the property is an instrument of an offence listed in Schedule 1 or the proceeds of unlawful activities.
• Section 50(5) of POCA requires the Registrar of the court to publish a notice of the forfeiture order in the Government Gazette.
• Section 25(1) of the Constitution provides that no one may be deprived of property except in terms of a law of general application, which raises questions of proportionality in forfeiture cases.

In National Director of Public Prosecutions v Botha N.O. [2020] ZACC 6 the court held that proceeds of crime are not protected as property under section 25(1) of the Constitution, reinforcing the state’s ability to seek forfeiture orders. The NDPP contended that the seized cash constituted proceeds of unlawful activities, particularly violations of exchange control regulations.

Conclusion

When it comes to big bucks and forfeiture fights, the stakes are always high. This case isn’t just about who gets to keep the cash – it’s a showdown between financial regulations and individual property rights. If the money talks, the law listens, and in this case, it’s whispering “proceeds of crime”. 

The case hinges on whether the state can prove on a balance of probabilities that the money is either proceeds of crime or an instrument of an offence under POCA. The proportionality principle, as discussed in NDPP v Botha N.O., suggests that if property is deemed to be the proceeds of crime, forfeiture is mandatory. This case serves as a critical precedent in the enforcement of financial crime legislation and the constitutional interpretation of property rights in forfeiture matters