North West High Court backs state in diesel truck forfeiture

The North West High Court has dismissed an attempt by two Botswana-based transport companies to overturn a forfeiture order that handed three fuel vehicles to the state, delivering a stinging rebuke to both their delay and the way their case was presented.

In a judgment handed down on January 16, Judge Andrew Reddy ruled that Brink Construction (Pty) Ltd and Tlhabego Distributors (Pty) Ltd failed to comply with the strict time limits set out in the Prevention of Organised Crime Act (POCA) and submitted affidavits so procedurally flawed that they carried no evidential weight.

At the centre of the dispute were a Volvo truck and two tanker trailers seized after diesel was transported from Botswana into South Africa.

In November 2023, the court ordered the vehicles forfeited to the state under section 53 of POCA.

The companies later sought rescission, claiming the crossing was a mistake and that authorities acted in bad faith by pursuing forfeiture while customs processes were allegedly still under way.

Judge Reddy found the application was doomed before it reached the merits.

“The forfeiture order was granted on 16 November 2023,” the judge noted, adding that the applicants had actual knowledge of it by 30 November that year. POCA allows only 20 days to challenge such an order. Instead, the companies launched their application in May 2024, months late, without asking the court to excuse the delay.

“It is obligatory for the applicants to make out a substantive application for condonation,” Judge Reddy said.

“The applicants have failed to provide a substantive application for condonation, notwithstanding missing the peremptory twenty (20) day window period by several months.”

The explanation offered that the order was only emailed to their attorney in April 2024, cut no ice. “This does not negate the irrefutable fact that they had actual knowledge of the existence of the court order on 30 November 2023,” the judge held, calling that date “the decisive date”.

Judge Reddy restated the strict “three-set rule” governing motion proceedings and emphasised that confirmatory affidavits must follow, or be contemporaneous with, a founding affidavit.

In this case, they did not.

“To put it simply, at the time the confirmatory affidavits were signed, the founding affidavit did not exist. The sequence of affidavits was inverted, which is borne out by the dates.”

The companies were ordered to jointly pay costs.