Alleged drunk driver Benjamin Kleinbooi’s car could end up with Toyota’s financial services division, rather than being forfeited to the state, it emerged on Monday.
Kleinbooi’s Toyota Corolla was attached last week by the Asset Forfeiture Unit (AFU) under a High Court order, after his two drunk driving arrests earlier this year.
However he is still paying off the vehicle with Toyota Financial Services (TFS).
The seizure was the first in what the AFU says will be a crackdown on drunk driving.
The project leader in charge of the AFU’s drunk driving initiative, Peter Volmink, said on Monday that a ”reservation of ownership” clause in a financing agreement ensured a vehicle remained the property of the institution providing the finance until the last instalment was paid.
In addition, the AFU’s own legislation recognised an ”innocent owner” defence, under which the owner of a vehicle could come forward and say he did not know or have grounds to suspect it would be used in the commission of a crime.
This would allow a financing institution to stake its claim, in the same way that a person who had innocently lent his vehicle to a friend could get it back.
”I can’t say what the bank’s attitude is going to be in this particular matter,” Volmink said.
”But generally speaking if a bank can come forward and show us that they are the true owners of the vehicle in a case, we will exclude the bank’s right of ownership from our forfeiture order.”
What would be forfeit in that case would be Kleinbooi’s right to ”possess, enjoy and use” the vehicle.
”The state would… would hand back the vehicle to the bank, but Kleinbooi would not have the right to drive it ever again.”
TFS would probably then sell off the vehicle, claiming any outstanding balance from Kleinbooi, as the forfeiture order did not extinguish a purchaser’s obligations.
TFS could establish its right to the car either by approaching the AFU directly, or by making representations to the Cape High Court in the formal forfeiture proceedings which will now follow last week’s attachment of the car.
”In fact, the court order invites them to come forward and file any opposition to he forfeiture order in 14 days,” Volmink said.
He would not be ”terribly disappointed” at the prospect of the car going to TFS rather than to the state.
The purpose of asset seizures was not to enrich the state, but to take away the instruments of crime.
TFS could not be reached for comment on Monday evening. Wesbank’s general manager for marketing, Peter Page, said the Banking Council had had discussions with the AFU on ownership of confiscated property, such as vehicles taken from poachers.
In practice, it had not been ”an issue” in the past, and the AFU had recognised prior title.
However he expressed concern that there appeared to be nothing to stop a drunk driving offender whose car was taken away from buying another car, once he had saved enough for a deposit.
He said banks and the state might want to look at blacklisting offenders so they were unable to get credit for a second car.
”There are issues that will be flowing out of this. How do we make sure the punishment is severe enough to stop people committing these crimes?
”It’s certainly going to provoke some more thought.” – Sapa