Abstract

FOURIE, M  and  PIENAAR, Gj. Tracing the roots of forfeiture and the loss of property in English and American law. Fundamina (Pretoria) [online]. 2017, vol.23, n.1, pp.20-38. ISSN 2411-7870.  http://dx.doi.org/10.17159/2411-7870/2017/v23n1a2.

Restriction of the freedom and rights of an owner to do with his property as he pleases is not a new phenomenon in legal jurisprudence, but restrictions are limited by legislative provisions and regulations. Interference with private property rights by state authorities may have dire consequences for an owner, and could give rise to forfeiture procedures when the property was used in violation of a law or for illegal purposes. The controversy is further exacerbated by the distinction between forfeitures in rem without prior conviction, which is a civil action directed against the so-called guilty property, and an action in personam or a criminal forfeiture, which forms part of the sentencing process after conviction and is directed against the owner personally. Asset forfeiture has an ancient history and tradition and the roots may be traced back to biblical justifications as a form of punishment. In rem forfeiture originated from the English common law concept of deodands. An inanimate object or animal that caused the death of a person was accused as the offender, and its value was forfeited to the king. Unlike deodands, forfeiture for felonies or treason is an ancient Saxon and early English common-law doctrine where in personam forfeiture was recognised. Upon conviction, all of a person's land and property ‒ real or personal - were forfeited to the Crown. This resulted in the corruption of blood, with the consequences that the bloodline of any person convicted and attained became stained or blackened and his descendants or family were prohibited from inheriting. The English common-law concept of deodand did not become part of the legal tradition in colonial America, and forfeiture for felony was almost never recognised. In rem forfeiture appeared for the first time in the United States' admiralty cases which were adapted from the English Navigation Acts of the seventeenth century. Any ship or vessel involved in piracy or slave trafficking was seized and forfeited, based on the guilty property fiction. The thing was considered as the offender, irrespective of the guilt of the owner. Civil and criminal forfeiture of the instruments of crime have survived constitutional scrutiny for many years, and are still applicable today, but are expanded to include a much broader variety of crimes.In conclusion the implications of these common law developments for South Africa are discussed.

Keywords : Forfeiture; deodands; in rem forfeiture; in personam forfeiture; statutory forfeiture; ownership; loss of property; felonies; organised crime.

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