Cap. 621 Art. 39Third party rights. 

(1) Where any person claims that he is the owner of any property subject to a Seizing and Freezing Order in accordance with

Part IV, or claims that he has rights over such property, or claims that he is the owner of any property subject to confiscation in accordance with article 38, that person may apply to the Civil Court (Asset Recovery Section) to declare that the said property belongs to him, or that he has the rights claimed over such property, and the Court shall, upon being satisfied through the proof produced by such person that the applicant is the owner of the property, as that term is defined in article 2, declare the property to belong to the applicant and no longer subject to the Seizing, Freezing or Confiscation Order, and where the Court is in like manner satisfied that the applicant has rights over the property, it shall declare the property seized, frozen or confiscated as being subject to those rights.

(2) (a) The Court shall not be satisfied that any property which was in the possession of, or enjoyed by the convicted person, belongs to the applicant, if the title to that property was required by law to be registered, and was not, without just cause to be proved by the applicant registered before the commencement of proceedings against the convicted person.

(b) The provision of paragraph (a) shall also apply where the title was registered before the commencement of proceedings, but after a date when the convicted person knew, or reasonably may be presumed to have known, that he was being investigated or prosecuted.

(3) (a) If the property is found to be the proceeds of crime, no third-party objection to the Seizing, Freezing or Confiscation of the property may be made except for the objection of a bona fide purchaser for value as described in sub-article (4).

(b) Without prejudice to any proceedings which may be taken for non-conviction based confiscation under Part VIII, if the property is facilitating property or is property involved in a money laundering offense other than the proceeds of crime, no third-party objection to the Seizing, Freezing or Confiscation of the property may be made except for the objection of a bona fide purchaser for value as described in sub-article (4), or of a third-party who was the owner of the property before or at the time of the offence giving rise to the Seizing, Freezing or Confiscation of the property

(4) Where the applicant claims that he acquired the property or right thereon by onerous title or in a commercial transaction, he shall be required to prove that he paid the fair price thereof in an arm’s length transaction, and that he has no reason to believe that the property was subject to confiscation at the time that he acquired his interest in it.

(5) Where the property consists of immovables and the applicant claims that there is a promise of sale relative to it, made prior to the proceedings which led to the conviction of the convicted person, the Civil Court (Asset Recovery Section) shall at the choice of the Director:

(a) allow the sale to proceed on condition that the proceeds of the sale shall be deposited by the applicant in the registry of the Civil Court (Asset Recovery Section) and the sum so deposited shall be subject to the Seizing and Freezing Order, in lieu of the property sold in accordance with the promise of sale agreement; or

(b) give the Director the right to have the property transferred to the name of the Government, on the same terms as provided in the promise of sale, on condition that the Director pays to the applicant a fair and reasonable compensation not being more than five percent (5%) of the price for the transfer as agreed to in the promise of sale, as the Court may determine.

(6) In its assessment of the proof brought by a third party claiming property or rights thereon in accordance with this article, due regard shall be given by the Court of the family, business or other relationship between the convicted person and the applicant, the use being made of the property including the identity of the person who exercised dominion and control over the property, the identity of the person who paid the insurance, taxes, and maintenance expenses of the property and the source of such payments, the means of the person claiming the property, and all other circumstances that may affect the credibility of the claim.

(7) In respect of property confiscated by a judgement of a Court of Criminal Jurisidction in terms of article 38, an action by a third party under this article shall be filed by not later than six (6) months from the date of the final judgement ordering confiscation. If no action is filed as aforesaid the confiscation of property shall become final and cannot be challenged.