State to impound drunk drivers' cars

[nthdimension]

It is a real concern that the state is allowed to appropriate private property without even having to prove a crime has been committed. It gets worse when that property rightfully belongs to someone not involved in the alleged crime. It should be an absolute requirement that the state first gain a conviction, then they should further have to prove that the property is the proceeds of the crime for which the person has been convicted. The act that is being used in this case was intended for the latter purpose.

 

[Syndyre]

Why do you say they don't have to prove a crime was committed? Surely there's a reason the act was termed the Prevention of Organised Crime Act though? It seems as if this law was originally designed to go after mafia-style organisations and is now instead being used against ordinary motorists, which is a rather worrying precedent.

 

[bwana]

It is a real concern that the state is allowed to appropriate private property without even having to prove a crime has been committed. It gets worse when that property rightfully belongs to someone not involved in the alleged crime. It should be an absolute requirement that the state first gain a conviction, then they should further have to prove that the property is the proceeds of the crime for which the person has been convicted. The act that is being used in this case was intended for the latter purpose.

Why do you say they don't have to prove a crime was committed? Surely there's a reason the act was termed the Prevention of Organised Crime Act though? It seems as if this law was originally designed to go after mafia-style organisations and is now instead being used against ordinary motorists, which is a rather worrying precedent.

I have to wonder why too - the article says

The SCA held that a court may only order the vehicle to be forfeited if such an order would be proportional to the particular offence.

This forfeiture is not up to the police - nor the state but the courts and the grounds for such an order must be justified.

 

[Syndyre]

Maybe he was saying that because they can seize your car immediately, although the actual forfeiture won't take place until its approved by a court.

 

[bwana]

Maybe he was saying that because they can seize your car immediately, although the actual forfeiture won't take place until its approved by a court.

Probably but people need to understand - if you dont want to lose you car - dont drink and drive. It's that simple.

If not drinking and driving is such a hardship then what a court might or might not do is the least of your worries.

 

[Syndyre]

True, but as I understand the process the breathalyser result can't be used as evidence because its not deemed accurate enough etc., so the actual evidence used in court is based on a blood test which can take months to come back, while your car's sitting somewhere in a police impound lot. My point is the police could theoretically seize your car on little evidence with no judicial oversight for a period of months, which isn't much comfort even if you do get it back eventually. I think the law should probably be structured so that the actual seizure and forfeiture only takes place once you've been found guilty in court, although you could obviously be interdicted from selling the car before then etc.

 

[nthdimension]

The law does not require the state to prove you committed any crime. No conviction is necessary to proceed with forfeiture of assets. Yes they have to go to court and bring a civil claim to take the assets, but in such a claim you would essentially have to convince the magistrate that your assets should not be taken. In the meantime they have your assets. They can even freeze your bank accounts.

What about instances where trying to get your assets back is going to ultimately cost more than the asset itself? You get accused of a crime, the state grabs your assets and now you have the choice of risking R50,000 or more on court costs or just letting them keep the assets. Asset forfeiture law has been heavily abused in the US in the past and could easily be abused here because no criminal conviction is required in either case and the individual has to take expensive steps to recover their assets. No criminal conviction should automatically mean no asset forfeiture, and they should not even be able to start seizing assets until they have a conviction. Although measures to make sure an accused cannot dispose of the assets, except to cover legal fees, or move their funds offshore would be appropriate.

And it is a very serious problem if they start seizing assets that do not even belong to the alleged perpetrator of the crime. Are you going to be so sanguine when something valuable of yours is taken by the state because someone used it in some way to commit a crime? If it happened to me I'd be bloody mad and b e willing to treat the members of the state responsible just like any other common criminal invading my property to steal from me.

 

[kingmonty]

It is a real concern that the state is allowed to appropriate private property without even having to prove a crime has been committed. It gets worse when that property rightfully belongs to someone not involved in the alleged crime. It should be an absolute requirement that the state first gain a conviction, then they should further have to prove that the property is the proceeds of the crime for which the person has been convicted. The act that is being used in this case was intended for the latter purpose.

I am beginning to think you are not reading any of the posts and just trolling now. Various posters have already given the legal requirements to appropriate private property here. This is going to depend on a court case and the circumstances will be taken into account during that court case. Obviously it would be in the property owner's best interests to ensure that he or she is well represented.

 

[kingmonty]

True, but as I understand the process the breathalyser result can't be used as evidence because its not deemed accurate enough etc.,

correct. blood tests will need to be administered by a doctor.

 

[kingmonty]

to avoid further confusion...

... here's a point form summary:

• A court order is REQUIRED before the state and Asset Forfeiture unit may seize assets
• If you drink a couple of beers and are somewhat over the limit, you will not lose your car, unless:
  • You are a serial offender
  • You were involved in a car accident
  • Your vehicle is being used to transport drugs or other illegal substances
  • You yourself are arrested for criminal activity, particularly organised crime
• You will have your day in court to defend yourself
• If someone else was driving, you will be allowed to take civil action against that person if your vehicle is seized

 

[nthdimension]

Various posters have already given the legal requirements to appropriate private property here. This is going to depend on a court case and the circumstances will be taken into account during that court case. Obviously it would be in the property owner's best interests to ensure that he or she is well represented.

You're misinformed about this law. The court has already ruled you do not need to be convicted on any offence. They were very clear on this. I am obviously speaking about the general use of the asset theft law not the specific case of motor vehicles. I suggest you actually go investigate the law and how it is being used.

I suggest you get involved in a civil case and see how quickly the costs escalate.

 

[nthdimension]

... here's a point form summary:

• A court order is REQUIRED before the state and Asset Forfeiture unit may seize assets
• You will have your day in court to defend yourself
• If someone else was driving, you will be allowed to take civil action against that person if your vehicle is seized

Of course a court order is required. But they're easy to get, then you have to go fight the order.

Of course you'll have your day in court. If you have the money for it. You seem to think this is a cheap and easy matter.

 

[kingmonty]

Of course a court order is required. But they're easy to get, then you have to go fight the order.

Of course you'll have your day in court. If you have the money for it. You seem to think this is a cheap and easy matter.

Wrong buddy. 90% of court cases in South Africa are paid for by the State. These court cases where such forfeiture orders shall be granted will be initiated and paid for by the state. And these are criminal cases.

 

[kingmonty]

You're misinformed about this law. The court has already ruled you do not need to be convicted on any offence. They were very clear on this. I am obviously speaking about the general use of the asset theft law not the specific case of motor vehicles. I suggest you actually go investigate the law and how it is being used.

I suggest you get involved in a civil case and see how quickly the costs escalate.

I am rather well informed on this law mate. This was a test case in terms of the forfeiture of vehicles from drunk drivers, and there have been no others. That, as far as this discussion, is final.

In the other regards, I also understand all the legal ramifications thereof. Maybe you should understand the prior cases with regard to asset forfeiture, and that it is actually used specifically in cases where there is sufficient evidence of a crime being commited and/or that such assets were acquired either directly or indirectly through proceeds from a crime.

As for easily getting a court order, whatever man, you really are talking rubbish. It is neither easy nor frequent, and sufficient evidence is required to be presented to a necessary court (i.e. a court that has necessary jurisdiction) before such an order shall be granted. I suggest you actually go through the various court rolls and see for yourself how frequently the Asset Forfeiture Unit has actually been granted orders to seize property after a successful conviction by a court. You should probably do this research before making any further notions which are as flawed as the last.

 

[RobinStobbs]

This is not a way to irritate people, it is a way to remove drunk people from the roads. The courts will steer this process, not the police or metro police. In my experience and anyone that's ever worked as a paramedic, most late night fatal crashes are as direct result of drunk driving. Period.

I would also like to add that enforcing of traffic rules is increasingly difficult in a society hell bent on breaking every possible rule at every possible opportunity they get. South Africans are ****ing idiots. There is a belief amongst some people that wearing a seatbelt is akin to being a "mamparra". Some people even go out of their way to avoid being caught by cameras by covering, spraying, altering and even removing their number plates. And loads of people (even on this forum) believe that the safety features built into their cars is a license for them to drive as fast as possible. Strangely, 90% of South Africans surveyed in 2005 indicated that they believe they are excellent drivers. Yet 99% of all drivers on South African roads blatantly and as often as possible disregard road rules.

Woooohooo.

Well 'said'.

 

[noxibox]

I read of a case recently where the police arrested someone claiming they were a drug manufacturer, but they dropped the case because they had no real evidence. This didn't stop them from seizing the guy's home and bank account though. The court did rule that no conviction was necessary for the state to seize and keep the property.

Probably doesn't happen often, but aren't we all regularly complaining about official corruption? I can see some good profits in planting just enough evidence to initiate an arrest, but not enough to actually proceed with a criminal case. Then you take your cut of the proceeds of the seized property.

I can't really see why the law does not actually require a conviction first. I don't care if 999 times out of a 1000 they do get a conviction first. Why shouldn't they always need one first? Why lesser evidentiary requirements for seizing property?

 

[noxibox]

nthdimension I think your information on US forfeiture law is perhaps outdated. As far as I know it has been reformed because the police were abusing it and using it as a means to steal private property.

In South Africa the state does have to show some evidence, but the bar is set fairly low so they can potentially take property with very little real evidence of a crime. We do have protections in place to for instance stop the state from taking property that belongs to someone else. This means the news reports that they could take a vehicle belonging to someone else are actually nonsense. Actually this probably provides smart criminals a way to protect their assets from the state, but better to err on the side of protecting the not-guilty.

Is it a criminal or civil case? News reports keep calling it a civil case, but is that just because it relates to civil forfeiture?

 

[nthdimension]

I stand corrected. I've witnessed the abuse of US forfeiture laws. I had not kept up to date on those though. At least to some extent South Africa is indeed adhering to protection of private property rights.

 

[TonyA]

Will they also sieze assets of those who defraud the state. Todays Sunday Times had an article about some woman who was a clerk at hospital and stole RM6 and bought house, farm, cars etc. Will these also be forfeited? And what about Yengeni's famouse 4*4?

 

[IanC]

http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=qw1163065140379S263

I would say this is fine - take a drunk driver's car!

Making the law is all very well ... enforcing it, is another matter entirely. Lets take a look at the enforcers:

• Metro Police - they couldn't find their backsides with both hands.
• XXXX Licencing Dept - most should be closed due to corruption.
• Home Affairs - Oh dear, where do I start ...