Why a St Francis farmer must forfeit his tractor

Court orders vehicle forfeited after owner’s son used it to build motorcycle track

AST Francis Bay farmer was forced to forfeit his tractor to the state after his son used it to prepare an illegal motorcycle track. Judge John Smith found that the tractor was used in the commission of an offence, after Duncan Lethbridge transgressed a host of environmental laws on his father’s Annex Visgacht farm in St Francis Bay.

Although Lethbridge did not oppose the asset forfeiture unit’s (AFU) application, Duncan senior jumped into the fray on the basis that the tractor actually belonged to him.

He said he was in America for a boat show when his son reportedly instructed a worker on the farm to prepare the track.

The employee also had to convey soil from another portion of the farm to block up a water causeway or protected wetland.

According to papers before the Port Elizabeth High Court, environmental law enforcement officers visited the farm following a complaint from a member of the public on October 9 2015.

Lethbridge was unable to produce any authority for the track in terms of the National Environmental Management Act.

Duncan snr, meanwhile, said the tractor had been used by his St Francis Marine CC in its business activities which relate to the launching and retrieving of vessels built by them.

On February 14, Judge Dayalin Chetty ordered the Department of Environmental Affairs to inspect the farm and to file a report regarding the extent, if any, to which the property had been rehabilitated.

Duncan snr was also ordered to file a report on its progress.

Senior environmental officials then met Duncan snr and his lawyers on April 19.

It was agreed that he would commission a specialist environmental practitioner to draft a plan for the affected areas. To date, this has not been done.

“Upon further inspection of the area, it was established that no rehabilitation had been effected. They furthermore observed fresh motorcycle tracks,” Smith said in his judgment.

“The constructed motorcycle jumps, which had been built with foreign material, were also still visible.”

Duncan snr had argued that the fresh tracks were, in fact, made by his own vehicle when he traversed the area the day before the inspection to ensure vehicular access. Furthermore, he said people working on the construction of the St Francis Bridge also had access to the area and he had no control over this.

He said his son had injured his arm and was therefore unable to ride a bike for about six months.

Smith said the court was required to grant a forfeiture order if it found, on a balance of probabilities, that the property concerned was an instrumentality of an offence.

“At this stage the owner’s guilt or wrongdoing are not the focus. The question is whether a functional relation between property and crime has been established,” Smith said.

He said there could be no doubt that the tractor was indeed used in the commission of an offence.

The AFU’s advocate, Warren Myburgh, had argued that Duncan snr did not put up any confirmatory affidavits to corroborate his version.

“The inference is compelling that Duncan senior did not play open cards with the court,” Smith said.

“His uncorroborated and improbable explanation that he was unaware of what was going on at the farm when he was in the USA is simply not sufficient.

“Furthermore, he was given an opportunity by Judge Chetty to take steps to commence the rehabilitation of the area. It is clear he has done nothing in this regard.”

Smith accordingly ordered that the tractor be forfeited to the state.

‘ No rehabilitation had been effected. The constructed jumps were still visible