The first car in South Africa to be attached by the state in a drunk driving case was the subject of a legal tussle in the Cape high court yesterday.
In 2004 the National Prosecuting Authority (NPA) obtained a preservation order for the Toyota Corolla driven by Laingsburg municipal official Benjamin Kleinbooi, following two arrests only weeks apart.
In the first, his blood alcohol level was three times the permitted limit, and in the second, which followed a collision with another vehicle, was four times over.
He was later convicted and fined R8000.
The NPA is now asking the court for a permanent forfeiture order. But Kleinbooi and Toyota Financial Services, from whom Kleinbooi was leasing the car, are opposing the order.
The NPA's legal team said in court papers that conventional methods had proved ineffective in combating drunken driving.
"Forfeiting the very means by which [Kleinbooi] endangers the lives of others will be in the interests of the safety of fellow road users," it said.
The NPA is seeking an order that will ensure Kleinbooi is "denied his rights" under the lease agreement, and that prevents Toyota from returning the car to him.
Toyota's advocate, Steve Kirk-Cohen, told judge Dennis Davis yesterday that forfeiture should apply only to the crimes named in the Prevention of Organised Crime Act (Poca) - money laundering, racketeering and gangsterism.
Though the supreme court of appeals had already upheld the forfeiture of the car, it had not considered this particular argument, he said.
Both Kleinbooi and Toyota are also arguing that a car is not the "instrumentality" required under Poca of a drunk driving offence.
Davis said he knew that however he decided the case, the matter would end up in the constitutional court.
The NPA said at the time of the preservation order the car was being attached as an instrument used in the commission of an offence, in the same way that a gun used in an unlawful shooting would be confiscated. Hearing is set to continue today.- Sapa