Decision

Impounding Decision for Charles Moyo

Published 1 September 2022

1. TRAFFIC COMMISSIONER FOR THE EAST OF ENGLAND

1.1 CHARLES MOYO

1.2 Applicant

-v-

1.3 DRIVER AND VEHICLE STANDARDS AGENCY

1.4 Respondent

2. DECISION OF THE TRAFFIC COMMISSIONER

3. Background

On 12 February 2022, DVSA traffic examiner Paul Thomas impounded heavy goods vehicle GXZ 2858 at junction 23A of the M1 in Derbyshire. It was not specified on any operator’s licence and was not displaying an o-licence disc. It was being driven by a Derrick White who said that he was working for Gasolo under the instruction of “Amos”, full name Selby Amos Nkambule. Mr White said that he was taking a trailer to Leeds for repair and was then due to proceed to Belfast with a new load. Mr Thomas found that Gasolo was the trading name of Mr Nkambule who had had a sole trader’s operator licence until 14 January 2022 when it had been revoked. Mr Nkambule had since received a letter warning him not to operate otherwise he risked having his vehicle impounded.

The vehicle’s tachograph unit was locked into an operator called STETS Logistics, which was the trading name of Ms Thulisiwe Ncube whose operator licence had been revoked on 25 August 2021.

The vehicle’s registered keeper was a Ndumisio Jonnas Dlamini. He was the director of Kasi Luv Ltd which had started an application for an operator’s licence on the system but not yet submitted it to the central licensing office.

There appearing no basis for legal operation of the vehicle, it was impounded.

4. Application for the return of the vehicle

On 7 March 2022 we received an application for the return of vehicle GXZ 2858 from a Charles Moyo, who stated he was the owner. The ground cited was that the vehicle was not being, and had not been, used in contravention of Section 2 of the Goods Vehicles (Licensing of Operators) Act 1995. Mr Moyo explained that the vehicle had been borrowed over the dates 9-12 February by a business named Tiny Transport (licence ON2048486).

5. Hearing

In advance of the hearing in Cambridge on 13 May 2022, senior traffic commissioner Richard Turfitt directed (by letter of 24 March 2022 to the applicant) that Mr Moyo should provide, by 21 days prior to the hearing:

• documentary evidence of ownership of the vehicle; and

• exact details of why the vehicle was not being used unlawfully, including corroborating documents.

Mr Moyo subsequently provided a copy of the first page of a V5 document showing that he had acquired the vehicle on 17 February 2022 (ie five days after its impounding). He also provided copies of bank statements in his name covering the period 28 September to 30 November 2021. The import of these statements was not wholly clear, as there was no commentary or explanation. I noted however that payments of £8,000 and £7,000 on 29 and 30 September respectively to Ndumiso Dlamini had been underlined, as had a payment from “Miss T Ncube” of £7,000 on 30 September. I noted another payment (not underlined) from Miss Ncube to Mr Moyo of £8,000 on 29 September.

No documents addressing the issue of lawful use were submitted.

The hearing took place in Cambridge on 13 May 2022 (having been postponed from its original date of 27 April). Present were Charles Moyo and (by video link) DVSA traffic examiner Paul Thomas.

6. Ownership of the vehicle

I asked Mr Moyo if he had any other evidence of ownership of the vehicle apart from the V5 certificate (the whole document was now produced). Mr Moyo handed me a copy of the vehicle’s calibration certificate, dated 2 February 2022 which he said he had arranged. I noted that the certificate listed as the “customer” “c/o Specialist Trailer Hire, Bell Hill Wood Lane, Rothwell, Leeds LS26 0RS”. Mr Moyo said that he had asked Specialist Trailer Hire to take the vehicle in for calibration, as he was not in the area.

Mr Moyo further explained that he had purchased the vehicle from Ndumisio Dlalini in September 2021, making two payments totalling £15,000. He had been able to make them because Miss Ncube had at the same time repaid him £15,000 he had lent her to buy property in Africa. He had intended to ship the vehicle to Botswana. I asked Mr Moyo whether there was any documentary evidence of what the £15,000 he had paid Mr Dlalini was for. Mr Moyo said that there was not: he and Mr Dlalini were friends and they had not thought there was any need to document the sale of the vehicle.

I asked why, if Mr Moyo had purchased the vehicle in September 2021, he had not immediately arranged to transfer the keepership. He said that Mr Dlalini had been in Africa at that time and since and had not been available to sign papers.

7. Consideration of the evidence of ownership

I am in possession of a V5 certificate showing only that Mr Moyo acquired the vehicle on 17 February 2022, five days after it had been impounded. It shows that DVLA registered this transfer on 22 February. A V5 certificate is in any case not proof of ownership, and I attach little weight to a certificate which shows that Mr Moyo was not the registered keeper on the day the vehicle was impounded.

Equally, I can attach no weight to the evidence that Mr Moyo paid Mr Dlalini a total of £15,000 on 29 and 30 September 2021. These payments could have been for anything. Indeed, Miss Ncube paid £15,000 to Mr Moyo at the same time, so by Mr Moyo’s logic she could be the owner. In the absence of any invoice, bill of sale or receipt I am unable to conclude that these payments were for the vehicle.

The other piece of documentary evidence provided by Mr Moyo is not helpful to his ownership claim. A tachograph calibration certificate which lists an unrelated trailer hire company as the customer is not evidence that Mr Moyo is the owner of the vehicle.

In conclusion, the paucity of documentary evidence of ownership is such that I cannot conclude, on the basis of probability, that Charles Moyo is the rightful owner of vehicle GXZ 2858.

8. Decision

Mr Moyo having failed to demonstrate that he is the owner of the vehicle, his application fails at that point. The application is therefore refused. My decision will be notified to the applicant and to DVSA and it will be for DVSA to dispose of the vehicle once the 28 day period for appeal against this decision has ended.

Nick Denton

Traffic Commissioner

13 May 2022