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Johannesburg - Seizing a suspected criminal's assets made it difficult for the individual to legally defend himself, the Constitutional Court heard on Thursday.
“If it were not for the preservation order, he would be able to use these fund(s) to be able to litigate,” said Nigel Redman, acting for United States-Israeli citizen Meir Elran.
“He now can't litigate against the State.”
The case is about the controversial Prevention of Organised Crime Act (Poca), which allows assets to be seized before a case has been concluded in court.
The National Prosecuting Authority could seize property during an investigation, and hold them until the case had been concluded. The subject of the order had to apply for living and legal expenses to be paid out of the frozen assets.
In March 2006, the National Directorate of Public Prosecutions obtained a court order to seize Elran's property because the items were the proceeds of “transnational” crime.
According to reports at the time, the Asset Forfeiture Unit seized his game farm, home, car and R3 million in the bank. An alleged ecstasy syndicate mastermind, he was fighting his extradition to the US.
His extradition hearing took a turn when he 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, with Judge Rose Rosenberg ordering the money be paid into Elran's lawyers' bank account.
The NDPP approached the Supreme Court of Appeal, but was unsuccessful, and was refused leave to appeal.
On Thursday Redman accused the State of being obstructive to prevent Elran from accessing his money. This was the aim of the State's argument: that Elran had not sufficiently disclosed how he had been supporting himself since his property was seized in 2006.
Redman said he and his colleague Eron Fasser were working for free for Elran. Elran's previous lawyer had withdrawn because Elran couldn't pay over R70 000 in legal fees.
Redman said his client had been living off charity, including a R60,000 loan from his mother, and he also had not paid his bond.
Azhar Bham, for the NDPP, submitted Elran had only provided “bland” statements when asked for information on his assets and liabilities, in order for the NDPP to determine whether he could access his money.
When asked what happened to the R5.4 million in shares he sold from a game farm he owned, Elran simply told the curator “it's in the bank statement”.
He did not provide dates or amounts for the bank statements concerned. He would not say who was lending him money, and until he made full disclosure the NPA could not make a decision, Bham submitted.
But Redman said Elran had provided “chapter and verse” on what his assets and liabilities were.
Justice Zac Yacoob wanted to know why someone who spent R20 000 a month on gifts, as stated in court papers, could be desperate for funds.
Redman countered that that was at the time of the seizure. After that, everything was frozen and he relied on loans and charity. Yacoob said Elran could have put more effort into showing he had “nothing”.
Redman said the NPA was giving itself a “free ride” by seizing Elran's assets, and then not letting him get money to defend himself.
Judgment was reserved. - Sapa