PART II
Confiscation Orders (ss 3-7)

[Ch0803s3]3.       Application for confiscation order

            (1) Where a person has been convicted of a serious offence, the Director of Public Prosecution may apply to the court before which the conviction was obtained, or to the High Court, for a confiscation order in respect of that serious offence, or, if convictions were obtained for more than one serious offence, in respect of all or any of those offences.

            (2) An application under subsection (1) shall be made within 12 months of the date of the conviction for the offence in respect of which it is made.

[Ch0803s4]4.       Decision of court in respect of application for confiscation order

            (1) Where an application is made under section 3, the court shall satisfy itself that the defendant in the case concerned has received the proceeds, as defined in section 2(5), of the serious offence or offences in respect of which the application is made, and if it decides that he has, shall proceed to assess the value of the proceeds received by him:

            Provided that in making such assessment where more than one serious offence is involved, the court shall make an assessment of the proceeds received by the defendant in respect of each offence separately.

            (2) For the purpose of making an assessment under subsection (1), the court may-

     (a)     treat any property which the court is satisfied was held by the defendant since his conviction for the offence in respect of which the application is made, or was transferred to him at any time within a period of 5 years prior to the date when he was charged with that offence, or, in the case of a serious offence of which he is deemed to have been convicted by virtue of section 2(4), within a period of 5 years prior to the date when he was so convicted, as having been received by him as payment or reward in connection with the commission of the offence;

     (b)     treat any payment, reward or pecuniary advantage as having been received or derived by him, notwithstanding that it was received or derived by another person at the request or at the direction of the defendant, or that it was received or derived by him or so received or derived by that other person before the commencement of this Act, or outside Botswana;

     (c)     treat any property vested in any trustee or receiver by reason of the defendant's bankruptcy, as continuing to be the defendant's property;

     (d)     treat property as being held by the defendant if he holds an interest in it, or as having been transferred to him if an interest in the property has been transferred or granted to him;

     (e)     disregard any expenses or outgoings of the defendant in connection with the offence or any other serious offence.

            (3) For the purpose of making an assessment under this section, the court may treat as property of the defendant any property that, in the opinion of the court, is subject to the effective control of the defendant, whether or not the defendant has any legal or equitable estate or interest in it, or any right, power or privilege in connection with it.

            (4) Without limiting the generality of subsection (3), the court may have regard to-

     (a)     shareholdings in, debentures over or directorships of any company that has an interest (whether direct or indirect) in the property;

     (b)     any trust that has a relationship to the property; and

     (c)     family, domestic and business relationships between persons having an interest in the property, or in companies of the kind referred to in paragraph (a), or trusts of the kind referred to in paragraph (b), and any other person or persons.

            (5) For the purpose of satisfying itself in accordance with subsection (1) in respect of a serious offence, the court may have regard to the transcript of any proceedings against the defendant for the offence or offences.

            (6) For the purpose of making an assessment under this section, the court shall value property, other than money, at its market value determined as at the date when the court makes the assessment, and when any person other than the defendant holds an interest in the property, the value of that interest shall be taken into account in determining the value of the property to the defendant.

[Ch0803s5]5.       Issue of confiscation order

            (1) When a court has satisfied itself in accordance with section 4 that the defendant has received or derived any benefit from proceeds of a serious offence, it shall issue an order (in this Act referred to as a "confiscation order") ordering the defendant to pay to the Government a pecuniary penalty of an amount equal to its own assessment of the value of the proceeds of the offence, received by the defendant or from which he has benefited, unless the court for good reason decides that the penalty shall be for a lesser amount.

            (2) The penalty ordered under subsection (1) shall, for all purposes, be deemed to be a civil debt owed by the defendant to the Government, and may be enforced as if it were an order made by the court in civil proceedings instituted by the Government against the defendant to recover a debt due by him to the Government.

            (3) A confiscation order following the conviction of the defendant may be issued before or after the court trying the offence or offences has passed sentence:

            Provided that-

     (a)     where a confiscation order is made before sentence has been passed, the court in passing sentence shall take into account the total value of the confiscation order when assessing the amount of any fine or order for compensation or restitution to be imposed on the defendant; and

     (b)     where a confiscation order is made after sentence has been passed, the court in assessing the size of any such order shall take into account any fine or order for compensation or restitution passed by the court which sentenced the defendant.

[Ch0803s6]6.       Issue of confiscation order to victim of offence

            (1) Notwithstanding the provisions of section 5 the court, instead of issuing a confiscation in favour of the Government, may on the application of the victim of the offence make the confiscation order in favour of the victim of the offence.

            (2) A confiscation order made under this section shall be deemed to be an exercise of the civil jurisdiction of the court in an action between the victim of the offence as plaintiff and the offender as defendant and may be enforced as if it were an order made by the court in civil proceedings instituted by the plaintiff against the defendant to recover a debt due by him to the plaintiff.

[Ch0803s7]7.       Discharge of confiscation order

            (1) A confiscation order made against the defendant shall be discharged-

     (a)     on the satisfaction of the pecuniary penalty;

     (b)     where the conviction or the confiscation order is set aside on appeal or where a free pardon is granted by the President in respect of the conviction.

            (2) Where a confiscation order is made in respect of a conviction for more than one offence, and the successful appeal or the free pardon is not in respect of all of the offences, the confiscation order shall not be discharged, but the amount of the pecuniary penalty under the order shall be deemed to be reduced by the amount attributable to the offence or offences the conviction for which has ceased to have effect.