Serious Offences (Confiscation Of Profits) Act (Chapter 9:17)

 

Chapter 9:17

Serious Offences (Confiscation Of Profits) Act

Acts 12/1990, 22/1992 (s. 20), 12/1997 (s. 6), 9/1999 (s. 82), 22/2001 (s. 4), 6/2005 (s. 9).

ARRANGEMENT OF SECTIONS

PART I

PRELIMINARY Section

1. Short title.

PART II

CONFISCATION

4. Application for confiscation order.
5. Notice of application.
6. Amendment of application.
7. Procedure on application.

PART III

FORFEITURE ORDERS

8. Forfeiture orders.
9. Effects of forfeiture order.
10. Effect of forfeiture order on third parties.
11. Discharge of forfeiture order on appeal or on quashing of conviction.
12. Registered foreign forfeiture orders.

PART IV

PECUNIARYPENALTYORDERS

13. Application of Part IV.
14. Special provision relating to specified offences.
15. Pecuniary penalty orders.
16. Assessment of pecuniary penalty.
17. Court may lift corporate veil.
18. Amounts paid in respect of registered foreign pecuniary penalty orders.

PART V

FORFEITURE IN RESPECT OFSPECIFIED OFFENCES

19. Forfeiture of interdicted property in relation to specified offenses.
20. Recovery of property to which section 19 applies.
21. Effect of quashing of conviction.
22. Person with interest in forfeited property entitled to buy back interest.
23. Buying out other interests in forfeited property.
24. Forfeiture where person cannot be brought before court.

PART VI

SEARCHPOWERSIN RELATION TO PROPERTYLIABLE TO CONFISCATION

25. Powers of search and seizure.
26. Search warrants in relation to tainted property.
27. Grant of search warrant by telephone.
28. Searches in emergencies.
29. Responsibility for seized property.
30. Return of seized property.
31. Search for and seizure of tainted property in relation to foreign offences.

PART VII

INTERDICTS

32. Interpretation in Part VII.
34. Grounds for issuing an interdict.
35. Notice of application for interdict
36. Persons who may appear and adduce evidence.
37. Court may make further orders.
38. Trustee to discharge pecuniary penalty order.
39. Registration of interdicts.
40. Contravention of interdicts.
41. Duties of trustee.
42. Protection of trustee from personal liability.
43. Remuneration and expenses of trustee.
44. Court may revoke interdicts.
45. When interdict ceases to have effect.
46. Interim interdict in respect of foreign offence.
47. Registered foreign interdicts.
48. Trustee to take control of property in relation to registered foreign interdict.
49. Undertaking by the Attorney-General.
50. Discharge of registered foreign pecuniary penalty.

PART VIII

INFORMATION GATHERING POWERS

51. Production orders.
52. Variation of production order.
53. Production orders in relation to foreign offences.
54. Powers to search for property-tracking document.
55. Search warrant for property-tracking document.
56. Search warrants in relation to foreign offences.
57. Monitoring orders.
58. Existence of monitoring order not to be disclosed.
59. Monitoring orders in relation to foreign offences.

PART IX

OBLIGATIONS OFFINANCIALINSTITUTIONS

60. Retention of records by financial institutions.
61. Register of original documents.
62. Communication of information to police.

PART X

OFFENCESANDGENERAL

63. Money-laundering.
64. Prohibition in dealing in tainted property.
65. Conduct ofdirectors, officers, employees or agents.
66. Operation of other laws not affected.

AN ACT to provide for the confiscation of the profits of crime; and to provide for matters connected therewith or incidental thereto.

[Date of commencement: 1st April, 1991.]

PART I

PRELIMINARY

1    Short title

This Act may be cited as the Serious Offences (Confiscation of Profits) Act [Chapter 9:17].

                       2    Interpretation

(1) In this Act—

“account” means any facility or arrangement through which a financial institution accepts deposits or allows withdrawals and includes a facility or arrangement for— (a) a fixed term deposit; or

(b)   a safety deposit box;

“benefit” includes a service or an advantage;

“confiscation order” means a forfeiture order or a pecuniary penalty order;

“dealing with property” includes removing the property from Zimbabwe and receiving or making a gift of the property;

“financial institution” means—

• the Reserve Bank of Zimbabwe established in terms of the Reserve Bank of Zimbabwe Act [Chapter 22:10]; or
• any commercial bank, accepting house, discount house or finance house registered as such under the Banking Act [Chapter 24:20]; or

[Paragraph as amended by section 82 of Act 9 of 1999]

• the Post Office Savings Bank of Zimbabwe established in terms of the Post Office Savings Bank Act [Chapter 24:10]; or
• a building society registered in terms of the Building Societies Act [Chapter 24:02];

“financial transaction” means—

• the opening, operating or closing of an account held with a financial institution; or
• the opening or use of a deposit box held by a financial institution; or
• the telegraphic or electronic transfer of funds by a financial institution on behalf of one person to another person; or
• the transmission of funds between Zimbabwe and foreign countries or between foreign countries on behalf of any person; or
• an application by any person for, or the receiving of, a loan from a financial institution;

“foreign forfeiture order” means a forfeiture order made under the law of a foreign country and registered in Zimbabwe in terms of section 32 of the Criminal Matters (Mutual Assistance) Act [Chapter 9:06] for enforcement against property believed to be located in Zimbabwe in respect of a foreign specified offence;

“foreign interdict” means an order made under the law of a foreign country and registered in Zimbabwe in terms of section 32 of the Criminal Matters (Mutual Assistance) Act [Chapter 9:06] for enforcement against property believed to be located in Zimbabwe in respect of a foreign specified offence;

“foreign pecuniary penalty order” means an order made under the law of a foreign country and registered in Zimbabwe in terms of section 32 of the Criminal Matters (Mutual Assistance) Act [Chapter 9:06] and which imposes a pecuniary penalty in respect of a foreign specified offence, but does not include an order for the payment of money by way of compensation, restitution or damages;

“foreign specified offence” means a specified offence committed against the law of a foreign country;

“forfeiture order” means an order made in terms of section eight;

“interdict” means an order made in terms of section thirty-three restraining any person from dealing with property;

“magistrate” means a regional magistrate or provincial magistrate;

[Definition amended by section 6 of Act 12 of 1997]

“Minister” means the Minister of Justice, Legal and Parliamentary Affairs or any other Minister to whom the President may from time to time assign the administration of this Act;

“money-laundering offence” means the offence of money-laundering referred to in section sixty-three;

“monitoring order” means an order made in terms of section fifty-seven;

“narcotic substance” means any prohibited drug referred to in the Drugs and Allied Substances Control Act

[Chapter 15:03] or any dangerous drug referred to in the Dangerous Drugs Act [Chapter 15:02];

“pecuniary penalty order” means an order made in terms of section fifteen;

“police officer” means any member of the Police Force of or above the rank of inspector;

“proceeds of crime” means any property that is derived or realized, directly or indirectly, by any person from—

• the commission of any serious offence; or
• any act or ommission which occurred outside Zimbabwe in relation to a narcotic substance and which, had it occurred in Zimbabwe would have constituted a serious narcotic offence;

and “proceeds of an offence” or “profits of crime” shall be construed accordingly; “production” includes growing and manufacture;

“production order” means an order made in terms of section fifty-one;

“property-tracking document” means a document relevant for—

• identifying, locating or quantifying the property of a person who has committed a serious offence; or
• identifying or locating any document necessary for the transfer of the property of a person who has committed a serious offence; or
• identifying, locating or quantifying tainted property in relation to a serious offence; or
• identifying or locating any document necessary for the transfer of tainted property in relation to a serious offence;

“serious narcotics offence” means any offence relating to a narcotic substance—

• which is punishable in Zimbabwe or in a foreign country by imprisonment for a period of twelve months or by a more severe punishment; or
• the value of the property derived or obtained from the commission of which is or is likely to be not less than twenty thousand dollars or such greater or lesser amount as may be prescribed;

“serious offence” means any offence—

• which is punishable by imprisonment for a period of twelve months or by a more severe punishment; or
• the value of the property derived or obtained from the commission of which is or is likely to be not less than twenty thousand dollars or such greater or lesser amount as may be prescribed;

and includes a specified offence;

“specified offence” means—

• a serious narcotics offence; or
• a money-laundering offence in relation to the proceeds of a serious narcotics offence; or (c) a prescribed offence; or
• a conspiracy to commit or aiding, abetting. counselling or procuring the commission of an offence referred to in paragraph (a), (b) or (c); or
• assisting another person to escape punishment for, or to dispose of the proceeds of, an offence referred to in paragraph (a); or
• attempting to commit an offence referred to in paragraph (a), (b) or (c);

“tainted property” means—

(a)   any property used in, or in connection with, the commission of a serious offence; or (b)          any proceeds of a serious offence; or

(c) any property in Zimbabwe which is the proceeds of a foreign specified offence in respect of which an order may be registered in terms of Part VI of the Criminal Matters (Mutual Assistance) Act [Chapter 9:06];

“the court” means the high court;

[Definition inserted by section 6 of act 12 of 1997]

“trustee” means a trustee appointed by the High Court in terms of paragraph (b) of subsection (2) of section thirty-three or subsection (1) of section forty-eight;

[Definition amended by section 6 of Act 12 of 1997]

• Any reference in this Act to a person being charged with an offence is a reference to an allegation being laid against the person for the offence, whether or not— (a) a summons has been issued against the person; or (b) a warrant for the arrest of the person has been issued.
• Any reference in this Act to a benefit derived by a person includes a reference to a benefit derived by another person at the request or direction of the first-mentioned person.
• Any reference in this Act to the property of a person includes a reference to property in respect of which the person has a beneficial interest.

                       3    Application

• Parts II to VII, other than section forty-six, shall not apply to the conviction of a person of an offence if the conviction took place before the 1st April, 1991.
• Subject to subsection (1), this Act shall apply in respect of— (a) any offence, whether committed before or after the 1st April, 1991;

(b) a person’s conviction of an offence whether before or after the 1st April, 1991.