The ability to trace assets across the world is becoming increasingly relevant to the business sphere as businesses continue to become progressively more global. As individuals and companies continue to move assets away from countries in which they are subject to dispute it is important that parties are able to trace assets across jurisdictions.
This Guide draws together contributions from tracing experts across a number of territories.
We hope you will find the Guide a useful resource for getting to grips with the framework in asset tracing law in each of these territories, safe in the knowledge that if further specialist advice is needed, it’s only a call or email away.
How to Use: You can use the tools below to create bespoke reports for the jurisdiction(s) and topic(s) covered. Click into single jurisdiction for one location or use the compare tool to compare multiple jurisdictions. Select the jurisdictions and topics of interest to create your unique report. You also have the option to print or download using the ellipsis button in the top right corner.
Asset tracing involves identifying assets with or from their criminal genesis through all the changes that have been made to them throughout different jursdictions and to the eventual form in which they currently exist on order to seize such assets and prosecute the people who own or are in control of such assets.
A notice will be published in the government gazette which states that a court order has been granted which prohibits any person from dealing with the asset in any manner.
When there is reason to believe that any person is in possession of information that is relevant to the commission or intended commission of an offence such as having an asset which is the result of the proceeds of a lawful activity then the National Director of Public Prosecutions (NDPP) may institute an investigation.
During an investigation, the normal obligations of secrecy imposed on people by legislation or any other law with regards to an asset or the person in control thereof will not be valid unless the information is protected by client-attorney privilege.
Yes. The NDPP can make an ex parte application to a High Court for a temporary order which prevents any person from dealing with the assets in any manner. The person against whom such an order has been granted may be called to appear in court and show cause as to why the court order to not deal with the assets in any manner should not be made permanent.
The requirements for making a freezing injunction according to the Prevention of Organised Crimes Act are that: 1. The NDPP must make an ex parte application to a High Court for a freezing order. 2. The High Court will only grant the order if the NDPP proves that there are reasonable grounds to believe that the property concerned is the proceeds of unlawful activities or the asset is concerned in the commission or suspected commission of an offence in South Africa or elsewhere.
Any asset can be frozen provided that it meets any of the two following criteria: 1. If the property is concerned in the commission or suspected commission of an offence such as murder, robbery, extortion, corruption, rape, kidnapping, fraud, etc. in South Africa or elsewhere.
The common law states that the assets do not have to be within the jurisdiction of South Africa for a court order to be granted that such assets must be frozen. This means that if a court order is granted for an asset outside South Africa, then there needs to be cooperation between South African authorities and that of a country in which the frozen asset is kept.
A search order is called a search warrant and is obtained by making an application to a court. The application is made by the authorities investigating the asset. The court to which the application is made depends on the type of asset concerned and the court which would have jurisdiction in the matter.
An order can be granted for a search warrant or the freezing of an asset that is involved in the commission or suspected commission of an offence, provided that the commission or suspected commission of the offence had occurred in South Africa, as it will then then constitute an unlawful activity.
A freezing injuction obtained from a foreign court could be enforced against assets in this jurisdiction if the commission of the offence in the foreign jurisdiction also constitutes an unlawful activity in South Africa.
Disclaimer: This guide contains summaries of general principles of law. It is not a substitute for specific legal advice and should not be relied upon in relation to the application of the law or subject matter covered.
