A recent judgment by the Cape High Court has opened the door for the Asset Forfeiture Unit to confiscate the cars of drunken drivers and speedsters. This has been much debated in legal circles and the Arrive Alive Campaign has received praise from members of the public who have seen enough trauma caused by the offenders.
For an understanding of the new measures it is important to focus on the history behind these drastic measures and the legislation that enabled the National Prosecuting Authority to approach the court for the preservation order.
Background on the Incidence of Drunken Driving in South Africa
- During a countrywide survey conducted during 2003, the breath alcohol of 2% of all drivers stopped before 18h00 was more than what was legally permissible. After 18h00, the percentage increased to 5%.
- The blood alcohol levels of 46,5% of drivers killed on South African roads during 2001, was more than what was legally permitted.
- The blood alcohol levels of 18,8% of all drivers killed during 2001 exceeded 4 times what was legally permissible, whilst the blood alcohol levels of 9,5% of drivers killed exceeded 5 times what was legally permissible.
- The incidence of drunken driving in South Africa is unacceptably high and the State has a compelling interest in taking all lawful measures aimed at combating this phenomenon, including, and especially in the case of repeat offenders, preservation and forfeiture of the instrumentalities used in these offences, namely the motor vehicles involved.
The Conduct that has lead to the Application for a Preservation Order
It is alleged that the driver of the vehicle [the respondent] was involved in several offences for which he is being prosecuted. These include:
- 2 Incidents of driving a motor vehicle whilst under the influence of alcohol – alternatively , driving whilst the concentration of alcohol in his blood was not less than 0.05g / 100ml
- A blood sample taken from the driver at the time of the first incident revealed a concentration of alcohol in his blood of 0.18g/100ml. Given the legal limit of 0.05g/100ml for non professional drivers, the concentration of alcohol in his blood was more than 3 times what was legally permitted.
- A blood sample taken from the driver at the time of the second incident revealed a concentration of alcohol of 0.23g/100ml, which is more than 4 times the legal limit.
- Defeating or obstructing the course of justice having driven away after being stopped by a traffic officer
- Reckless or negligent driving as prohibited by Section 63(1) of the Road Traffic Act
The respondent also faces a charge of speeding. On 10 April 2004 his vehicle was photographed by means of speed detection apparatus, whilst traveling at 189km/h in an area where the speed limit was 120km/h.
- The application for a preservation of property order was sought by the National Director of Public Prosecutions in terms of section 38(1) of the Prevention of Organised Crime Act 121 of 1998
- Section 38(2) provides that a High Court shall grant a preservation of property order if there are reasonable grounds to believe that the property concerned is:
(i) an instrumentality of an offence referred to in Schedule 1 to the Act
(ii) proceeds of unlawful activities
- The National Director of Public Prosecutions stated that the vehicle was an instrumentality of the following offences:
(i) Driving on a public road whilst under the influence..
(ii) Defeating or obstructing the course of justice
(iii) Reckless or negligent driving
(iv) Driving in excess of the speed limit
“Instrumentality” is defined as “any property which is concerned in the commission or suspected commission of an offence at any time before or after the commencement of this Act, whether committed within the republic or elsewhere.”
The National Director of Public Prosecutions submitted that the vehicle played a role / was instrumental in a reasonably direct sense in the commission of the offence of driving under the influence of alcohol, in defeating or obstructing the course of justice, in reckless or negligent driving as well as driving at excessive speed.
As the vehicle was leased from another owner [second respondent] and the Act makes provision for the creation of a so called “innocent owner “defense” the legal owner would be afforded the opportunity to prove that it neither knew nor had reasonable grounds to suspect that the vehicle would be used as an instrumentality of a schedule 1 offence – and thereby have its' interests excluded from the forfeiture order.
The vehicle will remain the property of the institution providing the finance until the last instalment has been paid.What would be forfeited in such a case is the right of the respondent to " possess, enjoy and use" the vehicle.
Practical implications of the order
- All persons with knowledge of the order are prohibited from removing, taking possession of or control over ……or dealing in any other manner with the property to which the order relates
- A curator is appointed over the property
- The property may be disposed of the property on 30days notice in the event that the respondent does not meet his financial obligations to the second respondent [ and then only with the consent of the second respondent
- The property may be disposed by agreement with all parties who have a legal interest in the property concerned in order to defray the costs of administering the property
- An application will be made for an order forfeiting the property to the state – and such application may be opposed by someone who has an interest in the property.
Wendy Watson, the Director of Land Transport Regulation at the Department of Transport has indicated that this course of action is aimed especially at habitual offenders and the most dangerous drivers who continue to drink and drive or travel at very high speeds in spite of being caught. The Asset Forfeiture Unit, together with Arrive Alive and enforcement agencies has identified many dangerous drivers who are repeat offenders over the past few months.
Supreme Court of Appeal
The Supreme Court of Appeal (SCA) decided on the 9th of November 2006 that a motor vehicle that is driven under the influence of liquor or while the level of alcohol in the driver’s blood exceeds the prescribed limit, is liable to be forfeited to the State in terms of the Prevention of Organised Crime Act.
It was held that the Act is not restricted to organized crime, but extends to ordinary crimes committed by individuals, and that a motor vehicle constitutes an ‘instrumentality’ of the offences referred to above and is thus capable of being forfeited to the State in terms of the Act.
The court also held, however, that a vehicle driven in those conditions is not liable to forfeiture in every case. It held that a court may only order the vehicle to be forfeited if such an order would be proportional to the particular offence, which requires a court to weigh the particular circumstances in which an order for forfeiture is sought.
The confiscation of vehicles is not unique to South Africa. There is a worldwide realization that stronger enforcement is required to rid the roads of repeat offenders. For more information on the situation elsewhere also visit:
States in the USA must also enact and enforce repeat intoxicated driver laws to avoid the transfer of Federal- aid highway funds in instances of non-compliance.
[ Repeat Intoxicated Driver Laws]