Civil Forfeiture of Instrumentalities and Proceeds of Crime and the Constitutional Property Clause
Bibliographic Data
| ID | 6222592 |
|---|---|
| Authors | Aj Van Der Walt (Department of Public Law, University of Stellenbosch (from 1 March 2000); formerly Professor, Department of Private Law, University of South Africa. Thanks to Tania Prinsloo, who rendered expert and tireless research assistance, to Hamilton Raphasha, who traced some references, and to Greg Alexander, Tom Allen, Sean Flynn, Gerhard Kemp, Frank Michelman, Loot Pretorius, and Joe Singer for valuable discussions and comments. I take full credit for remaining misconceptions and errors., corresponding author) |
| Year | 2000 |
| Volume | 16 |
| Issue | 1 |
| Pages | 1-45 |
| Publication date | 2000-01-01 |
| Open Access | No |
| Type | ARTICLE |
| Venue | South African Journal on Human Rights (JOURNAL) |
| Journal identifiers | ISSN: 0258-7203 • E-ISSN: 1996-2126 |
| Publisher | Informa UK Limited (PUBLISHER • GB) |
| DOI | 10.1080/02587203.2000.11827587 |
| OpenAlex | W2772433566 |
| Language | EN |
| References cited | 3 |
This article examines some of the traditional justifications for civil forfeiture against the background of constitutional property discourse. The demise of the so-called ‘guilty-property’ fiction in favour of more pragmatic considerations makes the justification of civil forfeiture amenable to ordinary rationality review. Within this framework, the article concentrates on the question whether the interference with property involved in a civil forfeiture should be accompanied by compensation when it affects innocent third parties unfairly and unreasonably. In constitutional property discourse, this translates into the question whether civil forfeiture should be treated as an uncompensated police-power regulation of the use of property, or as a compensated eminent-domain taking of property. After examining cases and select legislation from various jurisdictions (United States, United Kingdom, Ireland, Namibia, Australia, the European Union and South Africa), the article concludes that the unfair disadvantage resulting from civil forfeiture may be reduced by, inter alia, subjecting mandatory forfeiture powers to constitutional review unless a measure of blameworthiness can be attached to the owner of the property. The most effective counter to the potential threat posed by civil forfeiture for innocent third parties is the possibility that a court could treat the forfeiture as a regulatory taking or material expropriation, with the result that the forfeiture would be unconstitutional and invalid in the absence of compensation
Expropriation · Law and economics · Political science · Sociology · Law · Legal Issues in South Africa · Legal principles and applications · Philosophy · Property Rights and Legal Doctrine
| Highly cited | No |
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