National Director of Public Prosecutions v W J Vermaak

The respondent (Vermaak) was convicted on two counts of driving under the influence of intoxicating liquor. On 5 July 2004, she was observed driving erratically in Groblersdal, almost colliding with a cyclist, colliding with a fence, passing a stop sign without stopping, and eventually driving into school grounds. Her blood alcohol concentration was 0.36 grams per 100 millilitres (legal limit: 0.05). On 25 October 2004, she was again stopped while driving erratically and found to be intoxicated. She had a prior conviction for driving with excessive blood alcohol (0.38 grams per 100ml) for which she received 12 months correctional supervision. For the two new offences, she was fined R8,000 or three years' imprisonment on each count (suspended for five years), with conditions including rehabilitation treatment for alcohol abuse, and her driver's licence was suspended for 12 months. The NDPP applied under Chapter 6 of the Prevention of Organised Crime Act 121 of 1998 for forfeiture of her motor vehicle (a dilapidated Volkswagen Jetta) as an instrumentality of the offences. The High Court at Pretoria (Ranchod AJ) refused the application, holding that the Act did not apply to this type of offence and that a motor vehicle was not an 'instrumentality' of the offence.

• Whether the Prevention of Organised Crime Act 121 of 1998 applies to individual criminal wrongdoing or is confined to 'organised crime'
• Whether a motor vehicle driven while under the influence of intoxicating liquor constitutes an 'instrumentality of an offence' under the Act
• Whether forfeiture of the vehicle would be a proportionate response to the offence in the circumstances
• The proper application of the doctrine of stare decisis in light of potentially conflicting SCA and Constitutional Court decisions
• The principles governing when forfeiture orders should be made under Chapter 6 of the Prevention of Organised Crime Act

The appeal was dismissed with costs. The High Court's refusal to order forfeiture of the respondent's motor vehicle was upheld, albeit on different grounds than those relied upon by the court a quo.

1. While the Prevention of Organised Crime Act 121 of 1998 applies to individual criminal wrongdoing and is not confined to organised crime, forfeiture under Chapter 6 may only be ordered if the deprivation is proportionate to the legislative aims. 2. Forfeiture serves primarily a remedial purpose to cripple or inhibit criminal activity, not to supplement or 'top up' criminal penalties imposed by courts. 3. Forfeiture is most appropriate where crime is committed as part of an ongoing criminal enterprise (whether individual or organized); it is least appropriate for isolated individual wrongdoing where ordinary criminal remedies provide adequate deterrence. 4. The offence of driving under the influence of intoxicating liquor falls into the category of isolated individual wrongdoing for which ordinary criminal sanctions (fines and imprisonment) provide adequate deterrence, and special circumstances are required before forfeiture of a vehicle will be proportionate. 5. Where an offender's conduct stems from illness (such as alcohol abuse) rather than deliberate defiance of the law, and adequate sentences addressing rehabilitation have been imposed, forfeiture would constitute merely an additional penalty and is not justified.

Nugent JA made important observations about the doctrine of stare decisis, noting that while the SCA is not absolutely bound by its own decisions, it will depart from them only with considerable circumspection, particularly given the court's influence on lower courts and how the profession and public order their affairs. The judgment noted that the SCA is bound by the ratio decidendi of Constitutional Court decisions. The court observed that it is more productive to make distinctions between different classes of offences at the proportionality stage of the forfeiture enquiry (where broadly framed distinctions suffice) rather than at the jurisdictional stage (where distinctions must be precisely defined and may produce anomalies). Nugent JA acknowledged awareness that driving under the influence is a 'widespread and noxious offence' that contributes significantly to death and injury on roads, but noted that in his experience the available sentences (up to six years' imprisonment) are seldom applied to their full extent. The judgment suggested that if available sentences are inadequate, it is open to the legislature to remedy that defect, but forfeiture should not be used to compensate for inadequate sentencing regimes.

This case is significant in South African law for establishing important principles governing the exercise of discretion under Chapter 6 of the Prevention of Organised Crime Act 121 of 1998 regarding forfeiture orders. It clarifies that while the Act applies to individual criminal wrongdoing (not just organised crime), forfeiture must be proportionate and serves primarily a remedial purpose to inhibit ongoing criminal activity rather than to supplement criminal penalties. The judgment provides a framework for distinguishing between cases where forfeiture is appropriate (ongoing criminal enterprises) and where it is not (isolated individual wrongdoing adequately addressed by ordinary criminal sanctions). It is particularly important for drunk driving cases and other 'ordinary crime' offences, establishing that special circumstances are required before forfeiture will be ordered. The case also demonstrates the application of stare decisis principles in navigating potentially conflicting precedents from the SCA and Constitutional Court.