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[2023] ZAGPJHC 746
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Lacrumbs Trading And Projects v Minister of Police and Others (051531) [2023] ZAGPJHC 746 (29 June 2023)

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REPUBLIC OF SOUTH
AFRICA
THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE NO:051531
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED:
YES
Date: 29 June 2023
In the matter between:
LACRUMBS
TRADING AND PROJECTS
APPLICANT
REG
NO.2006[…]
AND
THE
MINISTER OF POLICE
1ST
RESPONDENT
THE
STATION COMMANDER
2ND,
RESPONDENT
MOOT
POLICE STATION
THE
COMMANDING OFFICE'S
3RD
RESPONDENT
VEHICLE
IDENTIFICATION
JUDGEMENT
BOKAKO AJ
INTRODUCTION
1.
This is an urgent application to
restore possession of a truck that was confiscated by members of the
South
African Police Service (SAPS) from the applicant back again to
the applicant.
2.
The respondent opposed
the application because no spoliation took place, as the disposition
was that the said truck was registered
stolen.
3.
The respondent alleges
that Mr. Khoza had unlawfully sold the vehicle to the applicant. He
was not the truck's owner.
4.
Further, Mr. Khoza did
not obtain permission from the  Complainant before selling the
vehicle to the applicant.
5.
When the matter was
called, I heard arguments from the parties on the application's
urgency and background facts. The members of
(SAPS) confiscated
this truck as they had identified it and marked it as a stolen
vehicle.
6.
This application aims
to obtain an order that the First, Second, and Third Respondent
restore to the Applicant a UD Truck bearing
registration number DD[…]
with Vehicle register number TW[…] that the Respondents be
directed to remove the "S"
mark that was placed on the
truck.
7.
Further, requesting an
order declaring that the Seizure of the Motor Vehicle, namely a UD
TRUCKS bearing registration number DD[…]
and registration
letters and numbers TW[…], at the instance of the First and
Second Respondent, is unconstitutional and
8.
The First, Second, and
Third Respondents are directed to restore the Possession of the UD
TRUCKS with registration number DD[…]
to the applicant and the
Respondents to pay costs if this application is opposed.
URGENCY
9.
The
issue of urgency has been dealt with, and the court has found that
the applicant's application is urgent and has enrolled it
as such. It
is trite that mandament van police is directed at restoring
possession to a party unlawfully dispossessed, irrespective
of the
control or ownership. In
Ngqukumba
v
Minister
of Safety and Security and Others
[1]
Madlanga J said:
"The essence of the
amendment van police is the restoration before all else of unlawfully
deprived possession to the possessor.
It finds expression in the
maxim spoliatus ante omnia restituendus est (the spoiled person must
be restored to possession before
all else). The spoliation order is
meant to prevent the taking of possession otherwise than following
the law. Its underlying philosophy
is that no one should resort to
self-help to obtain or regain possession. The main purpose of the
management van police is to preserve
public order by restraining
persons from taking the law into their own hands and by inducing them
to follow due processes."
10.
The requisite for
granting a spoliation order is that the despoiled person must prove
that he was in possession of the object and
was unlawfully deprived
of control. The respondent has conceded that the applicant had the
vehicle but denied that he was wrongfully
deprived of possession.
According to the respondent, the applicant was in control of a stolen
truck, and such was communicated
to the applicant. The applicant
voluntarily renounced its possession because he feared being arrested
for something he did not
know. It is not in dispute that, at the
time, the applicant did not understand that the seller of the truck
was not an owner of
the truck and that it was stolen.
11.
This
court must determine whether the applicant was unlawfully deprived of
his possession. In
Schubart
Park
Residents’
Association v City of Tshwane
[2]
it was held that a spoliation order does not determine the lawfulness
of competing claims to the object or property, and for this
reason,
there are, under common law, only a limited number of defenses
available to a spoliation claim, impossibility being one
of them.
APPLICANT'S
SUBMISSIONS
12.
According to the
applicant,  his company purchased a motor vehicle (truck) on 12
January 2022 with a UD TRUCK bearing registration
number DD[…],
white in color with chassis numbers and letters ADD[…] from
DMD Holdings; he agreed with Mr. Khoza.
His company has a contract
with Eskom to supply coal. The truck was purchased for the sole
purpose of transportation of coal.
On 17 January 2022, he
attendant to the traffic department to register the truck. The report
did not indicate that the truck was
stolen.
13.
On or about April 2023,
he received a call from a Police officer who introduced himself as
Mr. Machate from VIS in Pretoria and
informed him that they were
looking for the truck as it had been reported stolen.
14.
These developments took
him aback. He was told that an "S" mark would be placed on
the vehicle and that it would be confiscated
upon any police stop or
traffic stop. He was also called by another Police officer who
introduced himself as Mr. Segokodi from
the Moot police station
attached to the VIS unit. He said he would be arrested if he  did
not cooperate  with the
police. He was scared as he had never
been arrested before. He then reverted to Donald Smangaliso Khoza of
DMD Holdings, who sold
him the truck. He assured the applicant that
the truck was not stolen and wrote a letter stating that he had sold
it to him.
15.
He communicated with
Mr. Segokodi and Mr. Machate and impressed them with his truck
possession; the officers were persistent in
impounding it. They asked
for the truck's location and told him they would arrest him if he
failed to corporate. On 6 May 2023,
he forwarded the truck's location
to the officers, and they arrived at his place of business and
impounded the car. He did not
consent to the seizure of the truck.
16.
The applicant learned
that Donald Smangaliso Khoza's wife opened the criminal case. This
criminal case has nothing to do with the
transaction they concluded
with DMD Holdings. The applicant contends that before purchasing the
truck, he made the necessary inquiries
at the traffic department, and
there was no "S" mark on the vehicle.
17.
Since an "S"
mark has been placed on the truck, the applicant was and is still
unable to  access and utilize it for
business. The truck has a
designated driver who earns an amount of R30 000.00 per month. The
truck does three loads per day from
Elandsfontein Mine in Gauteng to
Majuba Power station, making an amount of R25 806.00 daily.
18.
He contends that he has
been in lawful possession of the abovementioned truck without being
disturbed since 12 January 2023. The
seizure of the truck by the
Police officers is both unlawful and unconstitutional. Their actions
are detrimental to the well-functioning
of his business because he
needs to adhere to the contract signed with Eskom to supply the
necessary coal. He is suffering financial
losses and the risk of
losing his contract.
RESPONDENT'S
SUBMISSIONS
19.
Respondent opposed this
application in that this application is not urgent, in that the
applicant delayed in bringing this application,
and that the
applicant does have substantial redress at a hearing in due course.
Further contending that the applicant has failed
to join the
necessary party, who is the complainant in the pending criminal
proceedings, the party that bought the truck, and the
owner of the
truck. For the applicant to succeed with a spoliation application,
he needs to demonstrate, establish and satisfy
that he has been in
peaceful and undisturbed possession; it was unlawfully deprived of
the property.
20.
It was submitted
that the application needs to be amended for the failure of the
applicant to join Ms. Refilwe Semakeng Gontse Mokoena
in the current
proceedings. Ms. Moekoena is a complainant in the pending criminal
proceedings, wherein the truck the applicant
wants to be restored to
his possession is the subject of the proceedings. Allegedly  the
complainant is the one that bought
the truck, and she is currently
waiting for members of the South African Police Services to hand the
truck over to her as the truck
has been confiscated from the
applicant.
21.
It was further
argued that she has a direct and substantial interest in this matter
in that the property that she paid for could
be handed over to
another person. The respondent referred to several case laws related
to the above. Counsel for the respondent
submitted that
the truck was not unlawfully
confiscated from the applicant; it was taken lawfully. The said truck
was identified and registered
as a stolen vehicle. The law
enforcement officials had a legal duty to act as they did, that is,
to confiscate the truck from the
applicant, as the truck was the
subject of ongoing criminal investigation and pending criminal cases.
Therefore the applicant was
in unlawful possession of the truck, as
the truck was registered as stolen property. If the law enforcement
official had not taken
the truck from the applicant, they would have
breached their legal duty. They concluded that the remedy of
spoliation is not available
to a party that has been lawfully
deprived of property.
CONCLUSION
22.
it is not in every case
in which the applicant may have departed from the Rules to an
unwarranted extent that the appropriate remedy
is the dismissal of
the application. Each case depends on its particular facts and
circumstances.
23.
This is implicitly
recognized by Kroon J in the Caledon Street Restaurants CC case when
he held - looking at the issue from the
other perspective, as it were
- that the 'approach should rather be that there are times where, by
way of non-suiting an applicant,
the point must be made that the
Rules should be obeyed and that the interest of the other party and
his lawyers should be accorded
proper respect, and the matter must be
looked at to consider whether the case is such a time or not.'
24.
Quite apart from the
merits, it was argued that the application should be struck from the
roll on either of the above main grounds.
In that, the complainant is
the one that bought the truck, and she is currently waiting for
members of the South African Police
Services to hand the truck over
to her as the truck has been confiscated from the applicant, and she
has a direct and substantial
interest in this matter, in that her
property that she paid for could be handed over to another person.
25.
I proposed to deal with
the question of urgency and the application's merits regarding the
conclusion I have reached.
26.
When considering the
launch of an urgent application, not only the convenience of the
parties but the court and all issues relevant
to the reasonableness
of the time limits imposed against the size of the papers and
complexity of the matter must be weighed, carefully
considered, and
applied.
27.
I have carefully set
out the principles applicable to urgent applications above and in
some detail. I emphasize that there are degrees
of urgency, each of
which must be justified on the papers after careful consideration by
an applicant when launching an urgent
application.
28.
The respondent informed
the applicant that if it appears that he was indeed in possession of
such a truck, that truck has been fraudulently
sold to him, and the
South African Police Services investigate the matter, and there is an
“S”  mark on the vehicle,
meaning that it is marked
stolen. The respondent was indirectly threatening the applicant with
the arrest, which in turn will render
the applicant to be vulnerable
and also to be in weaker bargaining power.
29.
The respondent was in a
position of authority and was using tactics that would ultimately
cause the applicant to provide them with
his location. Hence, the
applicant stated in his founding affidavit that he was scared and did
not want to be arrested.
30.
That resulted from the
tactics the respondent had applied to the applicant, which led the
applicant to be vulnerable and weak, ultimately
acceding to the
respondent's demands.
31.
The requirements for
undue influence were formulated in Patel v Grobbelaar that a party
must prove (i) that the other party exercised
an undue influence over
him; (ii) that the influence weakened his powers of resistance and
made his will pliable; and (iii) that
the other party exercised his
influence in an unscrupulous manner to induce consent to a
transaction (a) which is to the detriment
and (b) which he, with
ordinary free will, would not have concluded.
32.
According to the
applicant, he had already paid Mr. Khoza  R350 000.00. The
applicant would not have easily surrendered the
vehicle without a
fight after having parted with such a large sum of money. Both
parties signed a contract.
33.
This court finds that
the respondent had threatened to arrest the applicant and, because of
this threat, resulted in the applicant
providing his location because
he did not want to be involved in any criminal act. The applicant did
not voluntarily hand over
the truck.
34.
The respondent needed
to place relevant facts before this court as to when the truck was
stolen. No material  or convincing
information was submitted by
the respondent. The emphasis was about a stolen truck
without any determination that this
truck was indeed stolen and by
whom.
35.
Allegedly there is a
pending case dating back to year 2021, this court was not afforded
with the docket or summary of substantial
facts regarding the
pending case or investigation and or progress update regarding this
pending matter.
36.
The complainant in the
pending case is said to be the wife of Mr. Donald Smangaliso Khoza.
(the seller). It is also not disputed
that the CAS 320/09/2021 dates
back to the year 2021, such indicates that this criminal matter was
opened way before 12 January
2022. And the Police officers only
contacted the Applicant in April 2023. There is no doubt that the
Respondents were negligent
in their duties. The applicant went to the
extent of registering the said motor vehicle successfully on 17
January 2022. No mark
or red flag suggested that the truck was
stolen. The issue of the "S" mark was only communicated to
the applicant in
the year 2023.
37.
When the applicant
purchased the truck, it belonged to DMD HOLDINGS. The applicant was
never called to make a witness or warning
statement as a suspect in
any criminal proceedings. The applicant strongly believes he is
caught in the middle of Mr. Khoza and
the complainant's relationship
problems.
38.
In
Ngqukumba`s
[3]
case the High
Court declared the search and seizure of the vehicle unlawful but
held that the return of the vehicle is prohibited
by the Act. Mr
Ngqukumba was unsuccessful in the Supreme Court of Appeal and then
approached the Constitutional Court. In a unanimous
judgment, the
Court held that the purpose of the spoliation remedy is to restore
possession to an unlawfully deprived possessor,
in order to preserve
public order and to prevent self-help. The remedy is consonant with
the rule of law, a founding value of the
Constitution. The Court
reasoned that the Act prohibits and criminalises possession of a
tampered vehicle only if the possession
is without “lawful
cause”. Thus the return of a tampered vehicle to the person
deprived of its possession would not
necessarily be unlawful. An
enquiry into lawfulness of possession would defeat the purpose of the
spoliation remedy. The Court
held that, in combating and preventing
crime, SAPS too must observe the law. The Constitutional Court
ordered the return of the
vehicle to the applicant. Judgment:
Madlanga J (unanimous). The Court held that, in combating and
preventing crime, SAPS too must
observe the law. The Constitutional
Court ordered the return of the vehicle to the applicant. The
circumstances in the above-mentioned
reference are severe and of
serious nature  comparatively to this case. When the truck was
taken to respective licensing department,
it was assessed and
inspected and report was positive, there was no “S” mark,
meaning that the said truck was roadworthy
and without red flags.
That was on or around January 2022.
39.
In this case, the court
is satisfied that the applicant was unlawfully  dispossessed ,
such dispossession  was not done
in the absence of consent nor
court order or authorising legislation.
40.
It is trite that mere
possession is essential and enough to satisfy the locus standi in the
case of the mandament van spolie.
41.
In this case it is
clear that the applicant has  proven  that he was in
possession and that there was unlawful deprivation
of possession,
that is, deprivation without his consent therefore possession must be
restored.
42.
The possession is
represented by the actual exercise of a right. Therefore, refusal to
allow a person to exercise the right will
amount to a dispossession
of the right. The spoliation order is a remedy available in  law
to protect possession of property.
This kind of a remedy results in
the restoration of possession to persons who have been unlawfully
dispossessed of their property,
mandament van spolie by stating
that; It is a fundamental principle that no man is allowed to take
the law into his own hands;
no one is permitted to dispossess another
forcibly or wrongfully and against his consent of the possession of
property, whether
movable or immovable. If he does so, the court will
summarily restore the status quo ante, and will do that as a
preliminary to
any enquiry or investigations into the merits of the
dispute. It is not necessary to refer to any authority upon a
principle so
clear.
43.
The applicant is
therefore entitled to the relief he is seeking in his notice of
motion.
ORDER:
44.
As a result, I make the
following order:
44.1.   The
application is heard as urgent in terms of Rule 6(12), condoning
noncompliance with time limits for service
of court documents.
44.2.   The
respondents are ordered to immediately restore physical possession of
the motor vehicle with a UD Truck bearing
registration number DD[…]
with Vehicle register number TW[…] to the applicant.
44.3.   In the
event, the respondents failed or refused to comply with the order in
Paragraph 44.2. above, the Sheriff
of this honorable court is
authorized and directed to enforce the declaration described above by
removing the truck described above
bearing a UD Truck bearing
registration number DD[…] with Vehicle register number TW[…]
from the unlawful possession
of the respondents or from wherever
there said the truck may be found, and there and then restore the
applicant's control thereof
by handing over the said truck where may
be found.
44.4.   The
respondent must pay the applicant's costs on a party and party scale.
T BOKAKO
Acting Judge of the
High Court
Gauteng Local
Division, Johannesburg
HEARD ON: 23 JUNE
2023
JUDGMENT
DATE: 29 JUNE 2023
FOR
THE PLAINTIFF
Adv.
RACHIDI
FOR
THE DEFENDANT:
Adv.
A. BLEKI
[1]
[2014]
ZACC 14
(15 May 2014) at para 10
[2]
2013
(1) SA 323
(CC) at para 24
[3]
Ngqukumba
v Minister of Safety and Security and Others Case
Number:
CCT87/13
:
[2014]
ZACC 14
2014
(7) BCLR 788
(CC),
2014 (5) SA 112
(CC)
2014 (2) SACR 325
(CC)