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[2014] ZASCA 95
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Minister of Police and Another v SA Metal and Machinery (462/13) [2014] ZASCA 95; 2015 (1) SACR 107 (SCA) (1 July 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case
No: 462/13
In
the matter between:
THE
MINISTER OF
POLICE
.............................................................................
FIRST
APPELLANT
OFFICER
COMMANDING, ELSIES RIVIER
POLICE
STATION
.........................................................................................
SECOND APPELLANT
and
SA
METAL AND MACHINERY COMPANY (PTY)
LTD
.........................................
RESPONDENT
Neutral
citation:
Minister of Police v SA Metal
and Machinery
(462/13)
[2014] ZASCA
95
(1 July 2014)
Coram:
Mpati P, Lewis, Bosielo and Theron JJA and Mocumie AJA
Heard:
13 May 2014
Delivered:
1 July 2014
Summary:
Criminal Procedure ─ search and seizure ─ application for
return of goods seized by police in terms of s 20
of
Criminal
Procedure Act 51 of 1977
─ interpretation of
s 31(1)
of
the Act ─ onus on the State to prove on a balance of
probabilities that possession of goods seized unlawful ─
requirements
of
actio ad exhibendum
.
ORDER
On
appeal from
Western Cape High Court,
Cape Town (Traverso DJP sitting as court of first instance):
The
appeal is dismissed with costs, including the costs of two counsel
where so employed.
JUDGMENT
Mpati
P and Mocumie AJA (Lewis, Bosielo and Theron JJA concurring)
:
[1]
During April 2010 the respondent, SA Metal and Machinery Company
(Pty) Ltd (SA Metal), instituted motion proceedings in the
Western
Cape High Court against the appellants, the Minister of Police and
the Officer Commanding, Elsies River Police Station,
for an order
directing the appellants to return to it certain items of scrap metal
(goods) seized from its premises at Epping 2,
Cape Town, on 13 June
2008 by members of the South African Police Service (SAPS). The goods
consisted of 142 kilograms of scrap
brass water meters (amounting to
135 such meters); 20 kilograms of mixed copper scrap; 31 kilograms of
greasy copper wire 1A; 40
kilograms of scrap lead; and one scrap cast
iron drain cover.
[2]
On 4 June 2010 and prior to filing opposing papers the appellants’
legal representatives addressed a letter to SA Metal’s
attorneys in which they conveyed to the latter that SAPS had already
disposed of the goods in terms of s 31 of the Criminal
Procedure
Act 51 of 1977 (CPA). SA Metal responded by amending its notice of
motion and seeking an order, in the alternative, for
payment of
damages, under the
actio ad exhibendum
, in the sum of
R8 611.50, being the value of the goods, together with interest.
The application was opposed, but the court
a quo (Traverso DJP)
granted the alternative relief sought. This appeal is with the leave
of this court.
[3]
The issue in the appeal is whether SAPS were entitled to dispose of
the goods and, importantly, whether SA Metal could recover
damages
under the
actio
ad exhibendum
on motion proceedings. It is not in dispute that the goods were
seized by SAPS in terms of s 20 of the CPA, which provides
that
the State may seize an article which, inter alia, is on reasonable
grounds believed to be concerned in the commission or suspected
commission of an offence, or which may afford evidence of the
commission or suspected commission of an offence.
[1]
[4]
It is common cause that during January 2009 Mr Christo Johan de Klerk
(De Klerk), one of SA Metal’s former directors,
was charged
with contravening s 36 of the General Law Amendment Act 62 of
1955, namely, being in possession of property suspected
to be stolen
in circumstances where the possessor is unable to give an explanation
for his or her possession. That charge was subsequently
withdrawn. On
9 April 2010 the Director of Public Prosecutions: Western Cape (DPP)
gave instructions that De Klerk be charged in
the magistrate’s
court for being in possession of property suspected to be stolen
(besit van vermoedelik gesteelde eiendom),
being 48 water meters,
allegedly the property of the City of Cape Town. It is alleged
in the answering affidavit, deposed
to by Captain Jacobus Albertus
van Wyk of SAPS, that ‘the charges were withdrawn on 5 August
2010 as a result of difficulty
regarding the availability of certain
witnesses. It appears, however, that as at 14 April 2010 when SA
Metal launched the application
the deponent to the founding
affidavit, Mr Graham Leslie Barnett, who describes himself as the
managing director of SA Metal, was
not aware of the DPP’s
instructions; hence the allegation that there were no criminal
proceedings pending against SA
Metal or any of its
representatives.
[5]
The defence raised by SAPS is that SA Metal was neither the owner nor
the lawful possessor of the goods because it failed to
produce any
proof to that effect. It was argued in this court that SAPS was
entitled to dispose of the goods in terms of s 31(1)
of the CPA.
It is common cause that the water meters were ‘returned’
to the City of Cape Town and the mixed copper
scrap wire was handed
over to Telkom, whilst the rest of the goods were sold to Rall Scrap
Metals. This occurred without the knowledge
of SA Metal.
[6]
Section 31(1) of the CPA provides:
‘
If
no criminal proceedings are instituted in connection with any article
referred to in section 30(
c
)
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.’
[7]
In order to succeed and to have the goods returned to it, all SA
Metal had to prove was that it was in possession of the goods
at the
time SAPS seized them and that no criminal proceedings have been
instituted against it. SAPS, on the other hand, bore the
onus of
proving that SA Metal’s possession of the goods was
unlawful.
[2]
With SAPS having disposed of the goods, it is clear that the goods
will not be required for purposes of evidence at any trial.
That SA
Metal was in possession of the goods when they were seized from it is
not in dispute. And, as has been mentioned above,
following the
withdrawal of the initial charge levelled against SA Metal the DPP
gave instructions that it (SA Metal) be charged
with possession of
only 48 water meters as property suspected to have been stolen. The
DPP declined to prosecute in respect of
the rest of the goods. It
follows that SA Metal would therefore be entitled to the return of
the goods, less 48 water meters, provided
it could lawfully possess
them. But, to an allegation made in the founding affidavit that SA
Metal did not anticipate any dispute
in its assertion that no further
criminal charges would be brought against De Klerk or any one of its
employees, SAPS referred,
in response, to the DPP’s
instructions mentioned above. Since no further charge has been
preferred against De Klerk after
the withdrawal of the one brought on
the DPP’s instructions it must be accepted, in our view, that
there is no reasonable
likelihood that De Klerk or any other person
employed by SA Metal, will be prosecuted in connection with the 48
water meters in
the foreseeable future.
[8]
In this court it was accepted by counsel for SAPS that for purposes
of s 31(1)
(a)
the
onus of proving that SA Metal may not lawfully possess the goods was
on SAPS. It was argued, however, that the question of the
onus would
only arise in circumstances where the goods had not been disposed of
and were in the possession of SAPS on the date
the application was
launched. That argument is plainly fallacious. SAPS is still required
to justify the disposal of the goods,
which it could presumably do if
SA Metal, from whom they were seized, or any other person, may not
lawfully possess them, in which
event they would be forfeited to the
State (s 31(1)
(b)
).
That justification would entail proof that SA Metal could not
lawfully possess the goods. No attempt was made to discharge the
onus
resting on SAPS in this regard.
[9]
The only basis upon which it is denied in the answering affidavit
that SA Metal is entitled to the return of the goods is that
the
latter ‘obtained these items through a process of committing
criminal offences by virtue of [its] non-compliance with
section 6
(read with section 11 of the Second-Hand Goods Act [23 of 1955]’,
(now repealed). It is then alleged that the goods
thus represent the
proceeds of unlawful activities as defined in the
Prevention of
Organised Crime Act 121 of 1998
and that accordingly SA Metal may not
possess them.
Section 6
of the now repealed Second-Hand Goods Act
enjoined a second-hand dealer, unless otherwise provided in the Act,
to keep a register
which must contain, inter alia, the name and
address of the person from whom the second-hand goods were acquired,
including the
date and hour of acquisition and a full description of
the goods.
[10]
It was argued before us that SA Metal’s employees could not
produce any register to verify the legitimacy of its acquisition
of
the goods. SA Metal therefore contravened the provisions of the
Second-Hand Goods Act and may accordingly not lawfully possess
the
goods, so the argument continued. We cannot agree. The Second-Hand
Goods Act does not prohibit possession of second-hand articles
by a
dealer who does not keep a register as required. Nor does it make
such possession unlawful. Instead, s 11 made it an
offence to
contravene, or fail to comply with, the provisions of that Act,
punishable upon conviction with a fine or imprisonment.
Thus, even if
it were true that SA Metal failed to comply with the provisions of
the Second-Hand Goods Act, which is denied by
it, that by itself
could not found a basis for the argument that SA Metal may not
lawfully possess the goods. It follows that SAPS
failed to discharge
the onus resting on it and SA Metal would be entitled to an order
directing that the goods be returned to it,
but for the fact that the
goods have already been disposed of.
[11]
This brings us to the relief sought under the
actio
ad exhibendum
. The thrust of SAPS’s
case is that once the goods were disposed of in terms of the CPA, it
was improper for SA Metal to proceed
by way of motion proceedings as
the
actio ad exhibendum
,
being a delictual claim for compensation, is an action available to
the owner of a
res
against a person who has wrongfully disposed of it. Further, so the
submission continued, SA Metal was required to allege and prove,
inter alia, that it was the owner of the goods at the time SAPS
allegedly wrongfully alienated them.
[12]
As to the appropriateness of motion proceedings in a claim under the
actio ad exhibendum
, reference may be made to the decision of
this court in
Cadac (Pty) Ltd v Weber-Stephen Products Co &
others
2011 (3) SA 570
(SCA), where Harms DP said the following:
‘
The
first issue to decide is whether the proceedings launched by Cadac
for an enquiry into damages is competent because, as was
argued by
Weber-Stephen, it is not at all permissible to bring an illiquid
claim by means of motion proceedings. This much was
said by Murray
AJP in
Room
Hire
.
The main reason for the statement is, in general terms,
unobjectionable. It is that motion proceedings are not geared to deal
with factual disputes ─ they are principally for the resolution
of legal issues ─ and illiquid claims by their very
nature
involve the resolution of factual issues.’
[3]
(Footnotes omitted)
[13]
Three paragraphs later in the judgment Harms DP continued:
‘
I
cannot see any objection why, as a matter of principle and in a
particular case, a plaintiff who wishes to have the issue of
liability decided before embarking on quantification, may not claim a
declaratory order to the effect that the defendant is liable,
and
pray for an order that the quantification stand over for later
adjudication. It works in intellectual property cases, albeit
because
of specific legislation, but in the light of a court’s inherent
jurisdiction to regulate its own process in the interests
of justice
─ a power derived from common law and now entrenched in the
Constitution (s 173) ─ I can see no justification
for
refusing to extend the practice to other cases.
Once
the principle is accepted for trial actions, there is no reason why
it cannot apply to application proceedings. In
Modderklip,
which was brought on notice of motion, this court issued an order for
a determination of the quantum of damages based on the formulation
used in
Harvey
Tiling
.’
[4]
(Footnotes omitted)
On
the issue of the quantum of damages the court below held that because
there was no bona fide dispute as to the value of the goods
it saw no
reason why it ‘cannot entertain the claim in these application
proceedings’. We agree.
[14]
However, counsel for SAPS submitted that in the instant matter there
was, inter alia, a significant factual dispute relating
to the
lawfulness of the dispositions of the goods, which was raised but not
canvassed in evidence. He contended further that in
light of the onus
on SA Metal to allege and prove the elements of the
actio
ad exhibendum
, SAPS had not been
required to adduce evidence of the basis upon which it was determined
who the lawful possessors of the goods
were. Clearly SAPS disposed of
the goods because of the conclusion it reached that SA Metal could
not lawfully possess them for
the reason that it had failed to comply
with the provisions of the Second-Hand Goods Act. We have
already shown that possession
of second-hand goods is not made
unlawful by the failure to keep a register as required by that Act.
The inescapable conclusion
is that the disposition of the goods was
wrongful. No evidence is required to prove this; it is a legal issue
in this particular
case.
[15]
To succeed in its damages claim SA Metal was, in addition to proving
ownership of the goods, also required to allege and prove
that:
(a)
SAPS wrongfully alienated the goods before
litis
contestatio
;
[5]
(b)
SAPS were aware, at the time of alienating the goods, of its (SA
Metal’s) claim thereto;
[6]
and
(c)
it suffered patrimonial loss as a result of the wrongful alienation
of the goods.
[7]
We
have found that the disposition (alienation) of the goods was
wrongful. As alluded to above, before SAPS filed an answering
affidavit the State Attorney advised that the goods had been disposed
of. The goods were therefore alienated before
litis
contestatio
.
[16]
In the letter advising of the alienation, it is recorded that the
scrap brass water meters were returned to the City of Cape
Town on 23
December 2009 and had been subsequently destroyed; that the mixed
copper scrap was handed over to Telkom on 25 November
2009; and that
the greasy copper wire, scrap lead and pieces of drain cover were
sold to Rall Scrap Metals on 4 December 2009.
As at those dates SAPS
knew of SA Metal’s claim to the goods. Mr Barnett, SA Metal’s
managing director, sent a letter
to Captain van Wyk dated 17 June
2008, advising that SA Metal had no reason to believe that the goods
had been stolen and demanding
their return ‘unless a court of
law finds that any of it has been stolen’. Receipt of this
letter was confirmed in
the answering affidavit. SAPS denied that
five further letters, the last dated 14 November 2008 making the same
demand, were received
by it.
[17]
It is not in dispute that SA Metal, being a dealer in scrap metal,
suffered patrimonial loss as a result of the wrongful alienation.
That leaves the question of ownership. It is clear from the founding
affidavit that SA Metal did not claim return of the goods
as a mere
possessor, but as owner thereof. It alleged, for example, that it
‘makes every possible effort to check that all
metal it
purchases is the legitimate property of the seller and does not buy
any metal if it has reason to suspect that it has
been stolen’.
From this allegation it is clear that SA Metal purchased the goods
and there is no allegation or evidence to
suggest that it did not
also acquire ownership. The only query proffered by SAPS in this
regard is that SA Metal took no steps
to produce details of the
acquisition of the goods ‘to show that they were legitimately
acquired’. In our view, this
challenge does not disprove the
evidence that SA Metal acquired ownership of the goods, particularly
since the basis of SAPS’s
claim of unlawfulness of the
possession of the goods by the former has been rejected. There is
thus no reason why SA metal was
not entitled to an order in terms of
the
actio ad exhibendum
for payment of the value of the goods, which was never disputed by
SAPS ─ R8 611.50.
[18]
In the result the following order is made:
The
appeal is dismissed with costs, including the costs of two counsel
where so employed.
____________________________
L
MPATI P and B C MOCUMIE AJA
Appearances
For
the Appellant: A C Webster SC (with him H Cassim)
Instructed by:
State Attorney, Cape
Town
State
Attorney, Bloemfontein
For
the Respondent: E W Fagan SC
Instructed by:
Bernadt Vukic Potash
& Getz, Cape Town
Lovius
Block, Bloemfontein
[1]
Section
20
(a)
and
(b)
.
[2]
Minister
van Wet en Orde en ‘n ander v Datnis Motors (Midlands) (Edms)
Bpk
1989 (1) SA 926A
at 935B-G.
[3]
Para
10.
[4]
Paras
13 and 14.
[5]
Lawsa
2 ed vol 27 para 385.
[6]
Frankel
Pollack Vinderine Inc v Stanton NO
2000
(1) SA 425
(W) at 429G-I.
[7]
RMS
Transport vs Psicon Holdings (Pty) Ltd
1996
(2) SA 176
(T) at 182.