National Director of Public Prosecutions in re Preservation Orders (039/2005), Ex parte [2005] ZAECHC 19; 2005 (2) SACR 198 (SE) (24 May 2005)

National Director of Public Prosecutions in re Preservation Orders (039/2005), Ex parte [2005] ZAECHC 19; 2005 (2) SACR 198 (SE) (24 May 2005)

The court held that the motor vehicles in question were not instrumentalities of the offence of drunken driving within the meaning of section 38 of the Prevention of Organized Crime Act. The vehicles were merely incidental to the commission of the offences, as the identity or nature of the vehicle played no functional role in facilitating or making possible the unlawful act. The court distinguished cases where property was directly used to commit or facilitate an offence, such as vehicles modified to conceal contraband, and found no such compelling link in the present applications. The machinery of Chapter 6 was deemed inappropriate for these circumstances, and the applications for...

Citation
[2005] ZAECHC 19
Parties
Applicant: THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
24 May 2005
Case Number
039/2005
Procedural Posture
Ex Parte Application / Application for Preservation Orders
Outcome
Applications for preservation orders dismissed.
Judges
Jones
Legal Topics
Prevention of Organized Crime Act, Preservation Order, Instrumentality of Offence, Forfeiture, Constitutional Interpretation
Criminal Law Civil Procedure Prevention of Organized Crime Act Preservation Order Instrumentality of Offence Forfeiture Constitutional Interpretation

Case Brief

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Parties

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

Procedural Posture

Ex Parte Application / Application for Preservation Orders

Legal Issues

  1. 1 Whether the motor vehicles in question qualify as an 'instrumentality of an offence' under section 38 of the Prevention of Organized Crime Act.
  2. 2 Whether the facts establish a sufficiently close functional link between the vehicles and the commission of the offences of drunken driving.
  3. 3 Whether the machinery of Chapter 6 of the Prevention of Organized Crime Act is constitutionally and purposively applicable to cases of drunken driving.

Ratio Decidendi

The court held that the motor vehicles in question were not instrumentalities of the offence of drunken driving within the meaning of section 38 of the Prevention of Organized Crime Act. The vehicles were merely incidental to the commission of the offences, as the identity or nature of the vehicle played no functional role in facilitating or making possible the unlawful act. The court distinguished cases where property was directly used to commit or facilitate an offence, such as vehicles modified to conceal contraband, and found no such compelling link in the present applications. The machinery of Chapter 6 was deemed inappropriate for these circumstances, and the applications for...

Court Disposition

Applications for preservation orders dismissed.

Orders

  • All five ex parte applications for preservation orders in respect of the motor vehicles are dismissed.