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[2014] ZAGPJHC 129
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Abubakar v Minister Of Police and Others (2013/4445) [2014] ZAGPJHC 129 (6 June 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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SAFLII
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2013/34445
In
the matter between:
ABUBAKAR,
MUHAMMED
Applicant
and
MINISTER
OF POLICE
First
Respondent
NATIONAL
POLICE COMMISSIONER
Second
Respondent
GAUTENG
PROVINCIAL POLICE
COMMISSIONER
Third
Respondent
STATION
COMMISSIONER, DOUGLASDALE
POLICE
STATION
Fourth
Respondent
STATION
COMMISSIONER, RANDBURG
POLICE
STATION
Fifth
Respondent
J
U D G M E N T
N
F KGOMO, J
:
INTRODUCTION
[1]
The applicant launched an application on 18 September 2013 for the
following orders:
1.1
Declaring
his arrest on 27 February 2013 and his subsequent detention until 4
March 2013 to be unlawful;
1.2
Directing
the first respondent to return to the applicant within 10 (ten) days
of the grant of the order sought, the following items
listed
hereunder seized during the unlawful search conducted at […….];
which items are:
1.2.1
R2
206 000,00 (two million, two hundred and six thousand rand);
1.2.2
One
blackberry Z.10 cellphone;
1.2.3
One
white blackberry bold cellphone;
1.2.4
One
silver Apple MacBook laptop;
1.2.5
One
grey HP laptop;
1.2.6
One
Toshiba laptop (black); and
1.2.7
A
jewellery set comprising of a wedding ring set and a set of gold
chains and earrings.
1.3
Directing
the fourth and fifth respondents, within 10 (ten) days of the grant
of this order sought, to furnish the applicant with
the names and
ranks of the eight (8) officers who conducted the unlawful search on
27 February 2013; and
1.4
For
costs of this application on a scale as between attorney and client.
[2]
The respondents are opposing the application.
[3]
When this matter served in court on 02 June 2014 both parties put it
on record that the applicant has in the meantime been served
or
issued with a criminal court case summons, which at the moment is
still in its skeletal stage, with only the charge of contravening
sections 1, 13, 17-24 and 64 of the Drugs and Drug Trafficking Act
[1]
(“
the
Act
”)
being found in possession and/or use of – undesirable
dependence producing substances as listed in Part III of Schedule
2
of the Act, to wit 370.28 grams of methcathinone – being set
out or merely mentioned in the summons in a criminal case.
[4] It
is common cause that a summons in a criminal case is not a complete
and/or final charge sheet for purposes of trial.
[5]
This summons was issued on 29 May 2014 and the applicant is called
upon therein, to appear before the Randburg Magistrate Court
to
answer to the charge or charges, as the case may be.
[6]
The applicant’s counsel conceded at court that in the light of
the now imminent prosecution of the applicant, the first
part of his
application, namely, the declaration of his arrest to be unlawful, as
well as the prayer for further and detailed particulars
of the police
officers who searched his premises and arrested him on 27 February
2013, should fall away. However, he insisted vehemently
that the
applicant is still persisting with the application for the return of
the money and goods listed in paragraphs 1.2.1 to
1.2.7 above.
RESPONDENTS’
DEFENCE(S
)
[7] In
addition to a general denial of liability accompanied by a prayer for
the application to be dismissed with costs on the grounds
of same
being ill-thought, capricious and an abuse of process; the
respondents raised a point
in limine
of lack of joinder of the National Director of Public Prosecutions
(“
NDPP
”),
who they averred was a material, relevant and interested party to the
proceedings.
SHORT
HISTORY AND FACTUAL MATRIX
[8]
Acting on information received, the police went to and conducted a
search at the applicant’s residence or place on 27
February
2013. According to the applicant the money and items listed in the
Notice of Motion were taken and/or confiscated by the
police. It is
the applicant’s case that the search and seizure was unlawful,
entitling him to the return of the money and
goods.
[9]
According to the respondents, apart from the items listed on or in
the applicant’s Notice of Motion, also found during
the search
at the applicant’s home were several sealed G4 Security bags
containing large amounts of money/cash as well as
drugs. The
bag had serial numbers. A G4 Security person was called and he
confirmed that those bags with money were the property
of G4 Security
and that the serial numbers on the looked like those that were taken
from their guards in an armed robbery during
September 2012 near
Vryburg in the North West Province where an amount of R2 700,00 in
cash was robbed. G4 Security is investigating
these aspects and would
and should possibly report to the relevant branches of the criminal
justice system.
[10]
According to the respondents further, the total cash seized from the
applicant during the search was R1 053 800,00 plus a further
R465
000,00 in a white bag. They denied taking the amount of R2 206 000,00
as alleged by the applicant.
[11]
A case docket under CAS No 726/02/2013 was registered at Douglasdale
Police Station and the applicant was charged with dealing
in and
possession of illegal drugs, money laundering, possession of
suspected stolen property and armed robbery. He was taken to
court on
1 March 2013 and the case was postponed to 4 March 2013 for further
investigation. On 4 March 2013 the public prosecutors
at the Randburg
Magistrate’s Court provisionally withdrew the charges against
the applicant so that further and in-depth
investigations could be
conducted and for forensic investigations to be done on the drugs to
determine their identity in terms
of the relevant legislation.
[12]
The lawfulness of the search and seizure operation and the
concomitant arrest was explained in full by Sgt Dasrath Govind in
a
Confirmatory Affidavit attached to the papers herein. I am satisfied
from the explanation given that the search, seizure and
arrest in
this case were executed in accordance with the applicable laws and
Act after the provisions of other applicable and relevant
laws
relating to drug trafficking and organised crime among others were
considered.
IS
APPLICANT ENTILTED TO RETURN OF GOODS TAKEN
[13]
It is interesting that the applicant is not mentioning the drugs
found during the search in his prayer for the return of the
goods set
out in the Notice of Motion. Even his counsel made cursory reference
to them in argument: He stated that if the
applicant was
charged with dealing in drugs, then the respondents would have had a
case for keeping the goods sought to be returned.
[14]
What counsel for the applicant have failed to take into consideration
or account is that no formal charge sheet has yet been
drawn up.
What has happened is that the applicant is being called upon, through
a summons, to appear before the Randburg
Magistrate’s Court on
25 June 2014 to be formally handed a charge sheet. In addition
hereto, the charges withdrawn by the
court provisionally on 3 March
2013 included dealing in drugs, money laundering and possession of
property suspected to have been
stolen. Furthermore, the quantity of
drugs involved here justifies the invocation of a presumption of
dealing in terms of the
Drugs and Drug Trafficking Act 140 of 1992
.
As such by the respondents’ version alone, the seized goods and
money ought not to be returned at this stage.
[15]
The other problem with this application is the fact that the parties
are not agreed as to what amount was seized or confiscated
by the
police. The applicant talks about R2 206 000,00 while the respondents
talk of R1 053 800,00. This at face value evidences
a dispute of
facts. Similarly, the applicant denies seeing the G4 money bags which
the police aver were found at his home. This
denial I dare say, came
out during argument in court.
[16]
The law and practice in relation to disputes of fact is clear and
settled: the court should take the version of the respondent
as
well as those aspects in the applicant’s version that are not
in dispute. If on all the probabilities the preponderances
point to
the version of the applicant being weak, the applicant should
fail.
[2]
[17]
The applicant submitted that the respondents have not advanced any
cogent reasons why the seized goods as listed in the Notice
of Motion
should not be returned irrespective of the fact that the applicant is
now to be formally re-charged. He relied
on
Ntoyakhe
v Minister of Safety and Security and Others
[3]
and
Choonara
v Minister of Law and Order
.
[4]
[18]
The headnote of
Ntoyakhe v Minister of
Safety and Security and Others
(“
Ntoyakhe
”)
reads in part as follows:
“
In
the context of s. 20 of the Criminal Procedure Act 51 of 1977 (which
permits the seizure of certain articles by the State) the
word
‘seize’ encompasses not only the act of taking possession
of an article, but also the subsequent detention thereof
…
However, the right of the State to keep the seized article is not
unlimited: That right must also (as in the case
of the initial
seizure itself) be exercised ‘in accordance with the
provisions’ of Chapter 2 of the Act. One such provision
is s.
31(1)(a) of the Act (which provides that ‘if no criminal
proceedings are instituted in connection with any
[seized]
article … or if it appears that
such article is not required at the trial for purposes of evidence or
for purposes of an
order of court, the article shall be returned to
the person from whom it was seized, if such person may lawfully
possess such article,
or, if such person may not lawfully possess
such article, to the person who may lawfully possess it.
”
[19]
As the honourable judge (Erasmus J) held in the above case, the
provisions of s. 20 read with s. 31, indicate that the main
objective
of the seizure authorised by Chapter 2 is to enable the police to
obtain possession of the articles for the purposes
of investigating
crime and prosecuting suspected offenders.
[20]
It is so that the provisions of Chapter 2 do not confer on the state
the right to deprive a person of the
lawful
possession
of
an article indefinitely (my emphasis).
[21]
It is also so that considerations of fairness and reasonableness,
which underlie our criminal justice system, dictate that
criminal
proceedings contemplated in 2. 31 must be instituted within a
reasonable time.
[22]
What constitute a reasonable period will, of course, depend on the
facts of each case.
[23] The length of the
period during which the article has already been detained is
obviously an important factor. Another factor
related to the above,
is the diligence with which the police had, during the period of the
detention of the article(s), conducted
their investigation in
connection with the seized article.
[24]
Where the reasonableness of the further detention of the article is
challenged, as
in casu
,
general principles dictate that the
onus
is on the state to place facts and
circumstances before the court on which such reasonableness may be
adjudged.
[25]
In
Choonara
v Minister of Law and Order
(“
Choonara
”)
Kuper AJ held among others
[5]
that s. 31 must be read as an adjunct to s. 20 and that both sections
in turn are aimed at facilitating the investigation and proof
of some
offence with which the article confiscated is connected, and an
accused person must be brought to trial without undue delay.
[6]
[26]
As regards the issue of the point
in
limine
of non-joinder of the NDPP, the
applicant avers as follows: There was no prosecution pending
between 27 February 2013 and
2 June 2014. He only received a copy of
the Criminal Summons Notice this morning of 2 June 2014. As
such, prior to 2 June
2014 there was no need or duty on him to cite
or join the NDPP.
[27]
In substantiation of their submission that the application should be
dismissed with costs the respondents relied on
Mgomezulu
v National Director of Public Prosecution
[7]
which found among others that during the currency of criminal
proceedings, unless exceptional circumstances exist justifying such
an action, courts should refrain from entertaining civil proceedings
or issuing declaratory orders affecting such criminal proceedings.
[28]
In the above case the Supreme Court of Appeal held as follows at p
112 paragraph [12]:
“
There
are several decisions of this Court which hold that, save in an
exceptional case, a Court will not issue a declaratory order
affecting criminal proceedings.
”
[29] I
have not come across any exceptional circumstances in this
application that can justify interfering with the impending criminal
proceedings against the applicant.
[30]
It is the applicant’s contention that there was undue delay in
the prosecutorial chain between the applicant’s
arrest and the
confiscation of money, property and drugs found in his possession and
the date on which he launched this application.
[31] A
delay in the investigations of a case may be due to a variety of
reasons. The mere length of time the investigation
is taking on
its own does not in my view constitute unreasonable delay.
There may be a variety of reasons for this, for example,
the
complexity of the investigation, the verification of the articles
seized during an arrest and some sort of specialised investigations,
like those required when drugs are involved and forensic tests should
first be conducted to determine their nature and/or composition.
[32]
According to one of the investigators in the case involving the
applicant, Warrant Officer (“
WO
”)
Thomas Moloto, part of the investigations were for G4 Security to
trace and report on the serial numbers on the money bags
bearing its
names. The Police laboratory in Pretoria was also to analyse and
report on the drugs found with the applicant. There
is evidence that
the laboratory report relative to the drugs was only received
recently.
[8]
That in my
view explains why a decision was only recently taken to reinstate the
charges against the applicant. What the
charge sheet will look like
will only be known after 25 June 2014.
[33]
When all the circumstances are taken into account, it is my finding
that there was no unreasonable delay in the institution
of the
criminal proceedings herein. Charges cannot be reinstituted
piece-meal. If that is done and the accused person
is charged
while other aspects of the investigation are not yet ready or
complete, the accused person may have a justification
to ask that the
prosecution be proceeded with in that incomplete state or the charges
be quashed against him. That may, in my view,
amount to a miscarriage
of justice. Justice is not only the preserve of accused persons.
State institutions, in this case,
the prosecuting authority, is also
entitled to a fair trial and consequently justice.
[34]
As a consequence of the above,
Ntoyakhe
and
Choonara
cannot avail the applicant.
[35]
In
Dookie
v Minister of Law and Order and Others
[9]
Page J held among others that in the case of an application in terms
of
s. 31(1)(a)
of the
Criminal Procedure Act 51 of 1977
for the
return of a vehicle seized in terms of s. 20 of the Act, provided no
criminal proceedings have been instituted or there
existed a
reasonable likelihood that such proceedings are to be or are going to
be instituted in the foreseeable future, the applicant
should be
returned his vehicle provided he has a right to possess it. In this
case the court found that there were no reasonable
prospects of
foreseeing criminal proceedings being instituted within a reasonable
or foreseeable future. However, the applicant
could not retrieve the
vehicle because the registration documents thereof reflected false
numbers evincing a strong inference that
the vehicle had been stolen
– all pointing to the fact that he could not lawfully possess
such a vehicle.
[36]
In casu
, a
criminal prosecution process has already been started. As I have
already found, there was no unreasonable delay in doing so.
The
applicant was not in custody throughout this period of
investigations.
[37]
Another aspect relevant to this whole process is that of the
incidence of the
onus
.
In
Booi
v Minister of Safety and Security and Another
[10]
the court held that the applicant bore the
onus
of proving that no criminal proceedings has been instituted as
required by s. 31(1)(a) and that the time lapse between the seizure
and the application for release was but one of the factors to be
taken into account.
[38]
In
Ngxongxela
v Minister of Law and Order and Others
[11]
the honourable judge held among others that –
“…
delay
may be explained: but even if there is no satisfactory explanation
forthcoming, its effect may be discounted by proof that
a prosecution
is to be instituted in the immediate future …
”
[39]
The next question is whether or not the applicant was spoliated. This
cannot be especially when
Van
der Merwe v Minister van Justisie en ‘n Ander
[12]
is anything to go by. The court put it as follows among others:
“
As
die ontneming van die besitter se besit egter regmatig geskied het,
dan was daar nie spoliasie nie: Sien
Judelman
v Colonial Government
(1909) 3 Buch
AC 446
en
19 CTR 442
;
Sillo v Naude
1926 AD 21
op
26; Maleta en ‘n Ander v Fourie
1975 (3) SA 999
(O) op 1002A,
Malan v Dippenaar 1969(2) SA 59 (O) op 62H
.
”
[40]
In the light of what I have already said hereinbefore, I agree with
the above finding of that court.
[41]
The applicant is asking for a final relief in motion proceedings.
Taking into account the nature of the relief claimed, the
well known
test in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[13]
is applicable. This matter should be decided on the basis of –
“…
those
facts averred in the applicant’s affidavit which have been
admitted by the respondent together with the facts alleged
by the
respondent. This approach is to be followed even when the onus to
prove any fact in issue rests with the respondent.
”
[14]
[42]
When the above test is applied, the applicant falls by the way-side.
[43]
That the National Prosecuting Authority has a direct and substantial
interest in this matter cannot be questioned. The initial
charges
against the applicant were provisionally withdrawn by the prosecution
with specific purposes of conducting further investigations.
The
applicant’s contention that he did not know of the Prosecuting
Authority’s interest cannot hold any water. The
fact that a
summons for the applicant to appear in court on 25 June 2014 only
emerged on the day of the hearing of this application
does not, in my
view, derogate from the fact that the applicant knew of the
prosecuting authority’s involvement in this matter.
As such,
the latter’s non-joinder constitutes a material misjonder.
[15]
[44]
When some of the previously provisionally withdrawn charges are
considered, charges under the organised crime legislation and
the
drugs legislation are relevant. The principle of “
instrumentality
to the commission of a crime
”
[16]
becomes an issue.
[45]
Furthermore, in terms of the
Drugs and Drug Trafficking Act 140 of
1992
[17]
any person found in
possession of drugs exceeding a certain limit, dealing is presumed.
The applicant was found in possession of
370,28 grams of
methcathinone.
Section 21(1)(a)(iii)
states that in a
prosecution, any person found in possession of any undesirable
dependence producing substance shall be presumed
until the contrary
is proved, that that person dealt in such dependence producing
substances.
CONCLUSION
[46]
The fate of the articles and money seized by the police from the
applicant lies in the hands of the court dealing with the
criminal
case. Such case is already in the pipe-line. At the start of
the proceedings herein I suggested to the parties that
this matter be
postponed
sine die
to await the production and service of the charge sheet to or on the
applicant. After taking instructions from his clients
who were
in court, counsel for the applicant insisted on arguing the release
of the seized property.
[47]
As is clear from the above, the applicant cannot succeed.
ORDER
[48]
The following order is made:
“
The
application is dismissed with costs
.”
___________________________________________
N
F KGOMO
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
FOR
THE APPLICANT
: ADV N
FELGATE
INSTRUCTED
BY
:
RANAMANE MAKUYA ATTORNEYS
JOHANNESBURG
TEL
NO: 011 – 331 7283
FOR
THE RESPONDENT
:
ADV
DAWIE JOUBERT
INSTRUCTED
BY
: STATE
ATTORNEY
JOHANNESBURG
TEL
NO: 011 – 330 7655
DATE
OF HEARING
: 02 JUNE
2014
DATE
OF JUDGMENT
: 06 JUNE 2014
[1]
Act
140 of 1992, (as amended).
[2]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A).
[3]
1999
(2) SACR 349 (E).
[4]
1992
(1) SACR 239 (W).
[5]
At
246a-c.
[6]
Riddock
v Attorney-General and Another
1965 (1) SA 817
(T);
Kabe
and Others v Attorney-General and Another
1958 (1) SA 300
(W) at 302.
[7]
2008
(1) SACR 105 (SCA).
[8]
Respondents’
Answering Affidavit, p 116, paragraph 12.
[9]
1991
(2) SACR 153 (D).
[10]
1995
(2) SACR 465
(O). See also
Dookie
v Minister of Law and Order (supra).
[11]
Unreported
Case No 413/89 handed down on 5 October 1989 in the Eastern Cape
Division.
[12]
1995
(2) SCR 471
(O). See also
Cine
Films (Pty) Ltd and Others v Commissioner of Police and Others
1971 (4) SA 574
(W).
[13]
Supra.
[14]
See
also
Stellenbosch
Farmers Winery Ltd v Stellenvale Winery (Pty) Ltd
1957 (4) SA 234
(C) at 235F-G;
Ngqumba
en ‘n Ander v Staatspresident en Andere
1988 (4) SA 224
(A) at 262B.
[15]
See
Rosebank
Mall (Pty) Ltd v Cradock Heights (Pty) Ltd
2004
(2) SA 535
(W);
Home
Sites (Pty) Ltd v Senekal
1948 (3) SA 514
(A);
Sheshe
v Vereeniging Municipality
1951 (3) SA 861 (A).
[16]
See
sec. 38 of
Prevention of Organised Crime Act 121 of 1998
among
others.
[17]
Section
21(1)(a)(iii).