Hilda Van Der Burg and Another v National Director of Public Prosecutions

The applicants, a married couple with four children (three minors), were registered owners of a residential property in Athlone, Cape Town. They had been operating an illegal shebeen (unlicensed liquor outlet) from the property since approximately 2000, when they purchased it. The shebeen operated from the main house and an attached wooden structure. The property was located approximately 30 metres from St. Raphael's Primary School and near other schools and a church. Neighbours repeatedly complained about noise, violence, vulgar language, public drunkenness, and minors purchasing liquor. Despite more than 50 police actions including 18 arrests, numerous warnings (oral and written), and liquor seizures, the applicants continued the illegal activity. The applicants' application for a liquor license was unsuccessful in 2002. The NDPP obtained a preservation order in 2006 and then applied for forfeiture of the property under section 50(1)(a) of the Prevention of Organised Crime Act (POCA). The applicants continued the illegal activity even after the preservation order. The High Court granted the forfeiture order in December 2008. The Full Court dismissed the applicants' appeal in March 2011.

• Whether the forfeiture provisions of POCA apply to the offence of selling liquor without a license
• Whether the offence falls within Item 33 of Schedule 1 to POCA
• Whether forfeiture of the property would be proportionate to the offence committed
• Whether the Constitution requires consideration of the best interests of the applicants' children before granting forfeiture
• Whether a curator ad litem should be appointed to represent the children's interests
• Whether the children's right to shelter and the parents' rights to property are separable

1. Condonation granted. 2. Leave to appeal granted. 3. Appeal dismissed. 4. The NDPP was ordered to engage a designated social worker under the Children's Act to investigate whether the applicants' minor children are in need of care and protection and to take appropriate action if necessary. 5. No order as to costs.

The binding legal principles established are: (1) Section 50(1)(a) of POCA applies to any offence listed in Schedule 1, not only to offences created by POCA itself or limited to "organised crime" in the narrow sense. (2) Item 33 of Schedule 1 ("any offence the punishment wherefore may be a period of imprisonment exceeding one year without the option of a fine") includes offences where such imprisonment is a competent sentence, even if a fine is also available as an alternative. The word "may" does not mean "must". (3) Forfeiture under POCA must meet a proportionality test to avoid arbitrary deprivation of property contrary to section 25(1) of the Constitution. (4) In the proportionality analysis, courts must consider: the seriousness of the offence, the manner and circumstances of its commission, whether conventional law enforcement has failed, the instrumentality of the property to the criminal conduct, harm caused to the community, and whether forfeiture would be disproportionate to the offence. (5) Forfeiture proceedings under POCA are distinct from eviction proceedings under PIE, though both may involve constitutional housing rights. (6) Section 28(2) of the Constitution requires courts to consider children's best interests as a separate and paramount consideration in forfeiture proceedings that may affect children, in addition to any consideration within the proportionality analysis. (7) Courts, state institutions (including the NDPP), and parents all have duties to raise and address children's interests. (8) Where it appears children may be in need of care and protection, section 47(1) of the Children's Act obliges courts to order an investigation by a designated social worker.

The Court made several significant observations: (1) Van der Westhuizen J noted that there may be a significant tension between parents' interests in retaining property used for illegal activity and children's interests in a safe environment. (2) The judgment observes that a house from which a shebeen operates, with associated violence, drunkenness, and criminal activity, "hardly seems like a proper home in which to raise children." (3) The Court expressed the view that children cannot be treated as "mere extensions" of their parents, "umbilically destined to sink or swim with them" (citing S v M). (4) The Court noted approvingly the general practice in the Constitutional Court not to award costs in constitutional rights litigation. (5) Van der Westhuizen J expressed gratitude to the Cape Bar Council and counsel who provided pro bono representation to the applicants. (6) The Court observed that POCA's forfeiture provisions are "not part of the ordinary strategies of law enforcement" and should not be used as a "substitute for, or a top-up of, ordinary forms of law enforcement" but may be used where conventional measures have failed. (7) The judgment noted that the closer criminal activities are to POCA's primary objectives, the more readily forfeiture should be granted, and conversely, the more remote the activities, the more compelling the circumstances must be.

This case clarifies the scope and application of POCA's civil forfeiture provisions. It establishes that: (1) POCA applies beyond "organised crime" stricto sensu to individual criminal conduct involving instrumentalities of offences listed in Schedule 1; (2) Item 33 of Schedule 1 covers offences where imprisonment exceeding one year without the option of a fine is a competent (not mandatory) sentence, even if a fine is also available; (3) Proportionality analysis must consider the manner and circumstances of the offence, not merely its formal classification; (4) Persistent criminal conduct that defeats conventional law enforcement justifies resort to POCA's forfeiture provisions; (5) Courts must separately consider children's best interests in forfeiture proceedings under section 28(2) of the Constitution, beyond the proportionality enquiry; (6) While parents are expected to raise children's interests, state institutions and courts have independent duties to protect children; (7) The Children's Act provides mechanisms for investigating and protecting children who may be living in harmful environments. The judgment demonstrates the balancing of crime prevention objectives with constitutional property rights and children's rights.