Hilary Muza 
IT was recently reported that a popular Zambian journalist was found with US$4 million in her house, whose origins she could not explain. It was presumed that the funds were the proceeds of crime as their source could not be justified.
It was also reported that she forfeited the upmarket house at which the cash was found. This got me thinking under what circumstances similar confiscation would occur under our laws, how one forfeits their property to the state and what is the legal framework allowing the State to seize such assets. At what point does your property cease to be yours and handed over to the State?
If you are a board member of a public entity
The law restricts the benefits that can be received by board member of public entities.
Restriction on remuneration of board members of public entities. Section 14(6) of the Public Entities Corporate Governance Act [Chapter 10:31] provides that board members of public entities, or people closely associated with them, cannot take loans or receive any preferential financial benefit from the public entity. Any such a loan, extension of credit or transaction is considered to be “tainted property” resulting in the commission of a “serious offence” for the purposes of section 80 of the Money Laundering and Proceeds of Crime Act [Chapter 9:24] (MLPCA).
This means that the Attorney-General (AG) or the Prosecutor-General (PG) can sue for the recovery of that property in terms of that section.
If you are suspected of being involved in, or benefiting from a serious crime
“Tainted property” is defined in the MLPCA as proceeds of crime, property which has been used to commit a serious offence, property which is being or has been used by an organised criminal group, property owned by an organised criminal group and property which has been collected for the purpose of supporting an organised criminal group or funding a serious offence. Also, a serious crime can be defined as one that involves intentionally stealing from another individual. Theft from an employer was considered a serious offence in S v Matika HB 17/2006 and S v Ngwenyeni HH 12/2008.
Unexplained wealth orders
The AG has the power in terms of the amended MLPCA to obtain an unexplained wealth order from the High Court against any individual suspected of holding wealth that could be the result of, or used in the furtherance of crime. If an unexplained wealth order is granted against someone, the court may also issue a freezing order barring access to and use of the property. The court can also determine what investigative procedures are to be taken in respect of the property.
All that is required in seeking such an order is that the respondent be in possession of the property and that the property be of a value of more than
US$100 000. The effect of this framework is wide-reaching and has a very real effect on how the battle against corruption must be fought. The law clearly intends that nobody be safe from being investigated and explaining how they obtained their wealth. Unfortunately, since the law is applied generally, a few individuals who have genuinely acquired wealth/assets will be caught in the web. The question now arises, how does one protect themselves?
Civil forfeiture applications
As stated above, the AG or the PG can seek a civil forfeiture order, where the property sought to be forfeited is considered tainted. Such an application was successfully made in the case of Prosecutor General v Madefit Investments (Pvt) Ltd HH 10/21. The PG sought to have five motor vehicles forfeited to the State as they were considered tainted property. The court accepted the argument that all the State has to do is prove that the property is tainted on a balance of probabilities. The terms ‘balance of probabilities’ means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. So, in other words the PG does not need to prove that the property is tainted without a doubt, all he needs to do is prove that according to available evidence, there is a high likelihood that it is. The application in the Madefit case succeeded because there was evidence of tampering with serial and chassis numbers on the trucks in question.
How to defend a civil forfeiture application
If faced with a civil forfeiture application one must place forensic evidence before the court that proves that the property is not tainted and prove that it was lawfully obtained. The effect of not adducing any expert evidence is that the court will have no choice but to accept the AG or PG’s expert evidence. There is a legal principle that says where an allegation is not specifically challenged, it is taken to be admitted. The effect of an admission in turn is that the court will have to take what has been alleged as true because, were it not true, it would have been denied by the party against whom that allegation is made.
The State simply has to prove that some serious offence was committed that resulted in one obtaining the property in question. A good defence will prove that the property is not connected to any offence at all. This is made difficult by the fact that the State does not need to prove that a specific crime was committed, but that any crime could possibly have been committed.
The court in the Madefit case said: “It is unnecessary to show that it is the respondent who committed either the offences of smuggling, vehicle theft or laundered the proceeds of any of these or any other crime. All that is required to prove that the vehicles are the proceeds of crime is to show that the vehicles are the proceeds of some kind of criminal activity.”
Be that as it may, the specific allegations made by the State can still be refuted with evidence.
Ultimately, the legal framework surrounding the fight against illicit wealth is so wide and permissive as to drag anybody at all into its net. Fortunately, the public is not without recourse in defending themselves and proving their innocence.
Muza is a duly admitted legal practitioner and litigation specialist. He writes in his personal capacity and is reachable at hilarykmuza@gmail.com and at 0719 042 628
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