The following will provide an analysis on the case National Director of Public Prosecutions v Seevnarayan.

1 The essay will focus primarily on the following issues. It will discuss the issues in the case in terms of statutory interpretation. It will then analyse how approached the interpretive problem in the case. Following the interpretive problem the method of statutory interpretation that the court employed to construct the relevant provisions will be discussed. The essay will examine how the court used the rules and presumptions of interpretation that are affiliated with the particular interpretive method. A conclusion will be drawn with the final outcome of the case.

The issues pertaining to the statutory interpretation will now be addressed through the facts of the case. In this case the respondent Seevnarayan made a number of investments in Sanlam products under a variety of different names; most of these names were fictitious.2 The investments made under these fictitious names were allegedly in order to evade tax. A preservation order was granted in the high court in terms of section 38(2) of the Preservation of Organised Crime Act 121 of 1998.3 The National Director of Public Prosecutions (NDPP) applied for an order in terms of section 48(1) of the Act declaring forfeited to the state the property preserved under the preservation order.4

The issues in terms of statutory interpretation were that the applicant had to prove on a balance of probabilities that the property concerned was an instrumentality of an offence or that the property concerned was the proceeds of unlawful activities.5 There were a number of unlawful activities the applicant relied on and the court had to examine. The first amounted to fraud on the South African Revenue Service. 6 The second was the respondents contravention of s104(1) of the Income Tax Act 58 of 1962.7 The third and final unlawful act amounted to fraud on Sanlam.8
1 2 3 4 5 6 7 8

2003 (1) SACR 260 (C). 261. 261. 261. para 22. para 23. para 23. para 23

The courts approach to the interpretive problems in this case is as follows. The court in this instance had determine if property concerned was an instrumentality of an offence, the court did this by looking at the definition of the instrumentality of an offence, the aim of the statue and the constitutionality of the provision. 9 The methods of statutory interpretation used by the court varied on examining the different approaches adopted by the court.

When looking at the definition of the instrumentality of an offence the court adopted a grammatical interpretation. A grammatical interpretation acknowledges the importance of the role of language of legislative text and it focuses on the linguistic and grammatical meaning of words, phrases, sentences and other structural components of the text.10 In this instance the court looked at the grammatical interpretation of the phrase instrumentality of an offence.11 The court did this by looking at the respondents definition of the phrase, this definition was backed up by cases National Director of Public Prosecutions v Carolus12 and National Director of Public Prosecutions v Patterson.13 Another form of grammatical interpretation adopted by the court in this case was that the judge examined both the English meaning of instrumentality of an offence and the Afrikaans interpretation of misdaadsinstrument.14

The next method of interpretation used by the court was systematic interpretation. This method is concerned with the clarification of the meaning of a particular legislative provision in relation the legislative text as a whole.15 This approach refers to the principle that words, phrases and provisions cannot be read in isolation. 16 The emphasis place on wholeness is not only restricted to other parts of legislation, but
9

para 32. Botha Statutory Interpretation: An Introduction for Students 4ed (2005) 58. 11 para 32. 12 1999 (2) SACR 27 (C). 13 2001 (4) SA 525 (C). 14 2003 (1) SACR 260 (C) para 36. 15 Botha Statutory Interpretation 59. 16 Botha Statutory Interpretation 59.
10

also takes into account all other contextual considerations such as the social and political environments in which the legislation operates.17 In this case the systematic interpretation was used by the judge in looking at the long title of the Act where the aim of the statute is that to provide for the civil forfeiture of criminal assets that have been used to commit an offence.18 The court in this instance looks at the phrase in context and not in isolation. Here the question was raised whether or not the property in question can properly be described as the means by which the offences were committed.19

The final method of interpretation used by the court for the issues that are present in this case was a technological interpretation. This interpretation places a great emphasis on fundamental constitutional values and value coherent interpretation.20 The aim and purpose of the legislation must be ascertained against fundamental constitutional values as noted in section 39(2) of the Constitution. The court in this instance used the technological interpretation method to find a reasonable statutory provision. Where a statutory provision is more capable of more than one reasonable construction, one of which would lead to invalidity and the other not, a court must favour the construction which avoids constitutional invalidity, provided such interpretation is not unduly strained.21

The court then had to approach the second issue of proceeds of unlawful activities using interpretation methods. Here the court looked at the definition of proceeds of unlawful activities, by looking at the aim of the act and looking at the Preamble of the Constitution. Here the court used the grammatical, technological and systematic methods of interpretation. The following will provide a discussion on how the methods were used in the case.

17 18 19 20 21

Botha Statutory Interpretation 59. para 36. para 37. Botha Statutory Interpretation 59. para 38.

The court looked at the phrase proceeds of unlawful activities when using the grammatical method of interpretation. Here the court held that it would be contrary to the purpose of the Act if one were to describe the property in question as means by the the alleged offences of fraud and contravention of s104 of the Income Tax Act were committed.22 Here fraud was not committed by means of money or other property but by means of intentional misrepresentation.23 Here the court further held that the applicant had failed to establish a connection between the alleged unlawful activity and the derivication or receipt of the property concerned.24

The court used the method of systematic interpretation used in this case was done by considering the aim of the act. The court held that the short title of the act is directed at the prevention of organised crime and evasion of personal income tax by an individual cannot be placed in the same category as organised crime.25 Here the systematic method was used to look at the context and intentions of the act.26

When using the technological method of interpretation the court analysed the Preamble. By doing so the court managed to obtain a literal application of the definition of the proceeds of unlawful activities and concluded that the fats of the case would not lead to equitable results.27 The Act in this case was not intended to be applied in a situation such as this one; this is provided in the Preamble of the Constitution.28 Here is can be noted that the courts use of the technological method ensured that the constitutional values that are outlined in the Constitutions Preamble were considered.29

In conclusion it can be noted that the applicants arguments were not justifiable in many instances. Here the definitions that were given by the applicant did not fit the
22 23

Para 38. para 44. 24 Para 44. 25 para 60. 26 Botha Statutory Interpretation 59. 27 para 62. 28 para 62. 29 Botha Statutory Interpretation 59.

definition of any unlawful activity. It can be therefore concluded that the applicant was not entitled to the order to which it hoped for. The judge ordered that the application be dismissed with costs.

Bibliography
Books:
C Botha Statutory Interpretaion: An Introduction for Students 4 ed (2005) Cape Town: Juta