NPA wins Elran asset seizure appeal

Independent Newspapers

Johannesburg - The National Director of Public Prosecutions (NDPP) was correct in refusing to release the assets of suspected criminal Meir Elran, the Constitutional Court said on Tuesday.

The case focused on the controversial Prevention of Organised Crime Act, which allows the seizure of the assets of suspected criminals before cases have been concluded in court.

The subject of the order has to apply for living and legal expenses out of the frozen assets, and are granted the funds only if they have disclosed all their assets, and a court determines there is a need to do so.

In March 2006, the NDPP obtained a court order to seize Elran's property, because the items were thought to be the proceeds of “transitional” crime.

According to reports at the time, the Asset Forfeiture Unit seized his game farm, home, car and R3 million.

Elran was alleged to be the mastermind behind an ecstasy syndicate and was fighting his extradition to the United States.

His lawyers argued that the US-Israeli citizen would have difficulty proving his case if his assets were seized.

Elran approached the High Court in Johannesburg to force the unit to release the money so he could pay his legal fees.

The court ruled in his favour in 2009, when Judge Rose Rosenberg ordered that the money be paid into Elran's lawyers' bank accounts.

The NDPP approached the Supreme Court of Appeal, but was unsuccessful, and was refused leave to appeal.

It took the matter to the Constitutional Court, where it argued that Elran should not be given access to the frozen funds, as he had not sufficiently disclosed how he had been supporting himself since his property was seized in 2006.

He alleged that he had been living off charity, including a R60,000 loan from his mother, and that he had also not paid his bond.

In a statement, the court said: “In a judgement, the majority of the Constitutional Court concluded that the outcome reached by the high court and the full court was wrong.

“The majority held that the wording of section 44(2) is clear. It specifically creates two preconditions that must be fulfilled before a high court may grant living and legal expenses. The first precondition is need. The second precondition is disclosure.

“Where an applicant has failed to meet both of these requirements, a court does not have a power to grant an applicant expenses from preserved property.

“The majority held that by failing to disclose his liabilities, Mr Elran had not met those preconditions. In light of his non-disclosure, the Constitutional Court held that the high court had no discretion to make an order for his legal expenses in his favour.”

The National Prosecuting Authority welcomed the ruling. - Sapa