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[2013] ZASCA 89
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Ngqukumba v Minister of Safety & Security and Others (660/12) [2013] ZASCA 89; 2013 (2) SACR 381 (SCA) (31 May 2013)
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THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 660/12
Reportable
In
the matter between:
ANELE
NGQUKUMBA
............................................................................................
APPELLANT
and
MINISTER
OF SAFETY & SECURITY
.....................................................
FIRST
RESPONDENT
THE
STATION COMMISSIONER, MTHATHA
....................................
SECOND RESPONDENT
CENTRAL
POLICE STATION
COMMANDING
OFFICER ─ VEHICLE SAFE
.........................................
THIRD
RESPONDENT
GUARD
UNIT ─ GROUP 46, MTHATHA
Neutral
citation:
Ngqukumba v Minister of Safety & Security
(660/12)
[2013] ZASCA 89
(31 May 2013).
Coram:
Brand, Maya, Theron and Petse JJA and Meyer AJA
Heard:
16 May 2013
Delivered:
31 May 2013
Summary:
Search and seizure ─ seizure of motor vehicle by police in
terms of
ss 20
and
22
of the
Criminal Procedure Act 51 of 1977
despite being unlawful not entitling person dispossessed to
restoration if possession would be without lawful cause as
contemplated
in
s 68(6)(
b
) of the
National Road Traffic Act 93
of 1996
. Costs ─ substantial success ─ appellant not
achieving substantial success warranting a favourable costs order.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
Eastern Cape
High Court, Mthatha (Pakade ADJP sitting as court of first instance):
The appeal is dismissed with costs
such costs to include the costs of two counsel.
________________________________________________________________
JUDGMENT
________________________________________________________________
PETSE JA (
Brand,
Maya, Theron JJA and Meyer AJA
concurring):
[1] More than a century ago, Innes CJ
stated in
Nino Bonino v De
Lange
1
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 investigation
into the merits of the dispute.’
[2] The issue that confronted the
learned Chief Justice in
Nino
Benino
arises in this
appeal although it has another dimension to it. It concerns the
question as to whether the declaration of unlawfulness
of the seizure
of the appellant’s motor vehicle by the police ─ acting
under ss 20 and 22 of the Criminal Procedure
Act 51 of 1977 (CPA) ─
entitled the appellant to the summary restoration of his vehicle when
his consequent possession of
the vehicle would have been without
lawful cause ─ and thus an offence ─ as contemplated in s
68(6)(
b
)
of the National Road Traffic Act 93 of 1996 (the Act). The Eastern
Cape High Court, Mthatha (Pakade ADJP) held that the appellant
was
not entitled to restoration.
[3] Accordingly the high court, whilst
declaring the seizure unlawful and setting it aside nonetheless did
not order restoration
to the appellant. Instead it authorised the
police to retain the vehicle in their possession subject to the
appellant complying
with the provisions of the Act. It also ordered
each party to pay its own costs. It subsequently granted the
appellant leave to
appeal to this court.
[4] The issue for determination arises
against the following backdrop. The appellant, Mr Anele Ngqukumba, is
a taxi operator in
the district of Mthatha, Eastern Cape Province.
During February 2010 Ngqukumba’s motor vehicle, a Toyota Hi-Ace
parked at
the Golden Egg Taxi Rank, Mthatha, whilst in the possession
of his employee, was seized by members of the South African Police
Service, who suspected it to have been stolen. Convinced that the
police had no lawful basis to seize the motor vehicle in the first
place,
Ngqukumba applied to the
high court for an order, inter alia, declaring the search,
seizure and continued detention of his
motor vehicle unlawful and for the restoration of its possession to
him.
[5] The respondents resisted the grant
of the relief sought by the appellant on several grounds. They
asserted that the police inspection
of the motor vehicle revealed
that: (a) its chassis plate had been tampered with and appeared to
have been removed from another
motor vehicle and superimposed on the
appellant’s motor vehicle; (b) the vehicle’s original
engine number had been
ground off; and (c) the manufacturer’s
tag plate appeared to have been removed from another motor vehicle
and later superimposed
on the appellant’s motor vehicle. The
consequence of these discoveries, so asserted the respondents, was
that no one may
lawfully possess the motor vehicle. In his replying
affidavit, Ngqukumba disputed that the police inspection of his motor
vehicle
yielded the outcome claimed by the respondents.
[6] There was a dispute of fact in
relation to the question whether the appellant’s motor
vehicle’s engine and chassis
numbers had been tampered with.
But, these being motion proceedings, this dispute must be determined
on the basis of the
Plascon-Evans
2
principle. And there was no suggestion
that the respondents’ version is far-fetched or otherwise
untenable.
[7] As I have said,
the
high court found that the seizure of the motor vehicle was unlawful.
The respondents have not appealed against this finding.
Despite this
finding the high court nonetheless declined to order the release of
the motor vehicle to the appellant. It considered
that the provisions
of ss 68(6)(
b
)
and 89(3) of the Act precluded it from doing so. It relied on
judgments
3
of this court, which it correctly
recognised as binding on it, in reaching that conclusion.
Accordingly,
the central issue
on appeal is whether it should have ordered restoration of the motor
vehicle to the appellant.
[8]
There
is a steadily growing body of case law
4
in which the import of ss 68(6)(
b
)
and 89(3) of the Act is explained. In
Pakule
and
Tafeni
5
this court said the following (para
26):
‘
On
the assumption, however, that there were no grounds for a reasonable
belief that the vehicles were concerned in the commission
of an
offence (that is, that there was no compliance with s 20) [of the
CPA], we see no reason why, when the vehicle is in the
possession of
the police, and they ascertain that there are indeed such grounds for
a reasonable belief that the item is concerned
in the commission of
an offence — such as the tampering with engine and chassis
numbers — they should then not seize
the vehicle lawfully. If
that were not so, and they returned the vehicles to the alleged
owners, they would be acting in contravention
of the
National Road
Traffic Act. The
police cannot lawfully release the vehicle to the
owner or possessor: an order by a court that a vehicle be returned
would defeat
the provisions of the latter Act.’
[9] Section 68(6)
(b)
of the Act provides:
‘
(6)
No person shall─
.
. .
(b)
without lawful cause be in possession of a motor vehicle of which the
engine or chassis number has been falsified, replaced,
altered,
defaced, mutilated, or to which anything has been added, or from
which anything has been removed, or has been tampered
with in any
other way.’
Section 89(3) of the Act in turn
provides that a contravention of s 68(6)
(b)
constitutes an offence for which the
accused is, on conviction, liable to a fine or imprisonment for a
period not exceeding three
years.
[10] There is also the judgment of
this court in
Marvanic
.
6
There the appellants had sought the
return of two motor vehicles that had been seized by the police on
the ground that they had
been stolen. The appellants’ case was
founded on s 31(1)(
a
)
of the CPA following the withdrawal of the charges of fraud and
possession of stolen property laid against the appellants. The
claim
was unsuccessful because this court found that s 68(6)
(b)
of the Act precluded possession of
motor vehicles whose registration and chassis numbers had been
tampered with. Lewis JA writing
for the majority stated (para 8):
‘
[I]t
seems to me that the purpose of s 68 is to prevent people, including
owners of vehicles, being in possession of, and driving,
vehicles
that have been tampered with in the ways detailed in the section. The
section makes possession that might otherwise be
lawful unlawful. At
the time when the vehicles were seized, their possession was thus
“without lawful cause” even if
the appellants were also
the owners. The fact that the vehicles are seized does not mean that
their return would make their possession
lawful.’
[11] This theme was taken further in
Basie Motors BK t/a
Boulevard Motors v Minister of Safety & Security
7
in which Mpati DP stated (para 16):
‘
[P]ossession
of a vehicle where there has been tampering with its engine or
chassis number is forbidden:
the
National Road Traffic Act does
not confer authority on anyone to
allow it
.
’
(My
emphasis.)
There is yet another judgment of this
court in
Absa Bank &
another v Eksteen
8
in which it was held that where a
purchaser shows that the eviction (in breach of the warranty against
eviction) is unassailable
the fact that the purchaser might later
acquire the right to possession is immaterial. There the motor
vehicle that the respondent
had purchased from the appellant revealed
evidence that its original identification numbers had been tampered
with. Accordingly,
this court
held that on ‘the authority of
Marvanic
the series of purchasers were indeed
not capable of resisting the eviction.’
[12] Unsurprisingly, counsel for the
respondents relied on this line of cases in support of the judgment
of the court a quo. Counsel
for the appellant, on the other hand,
placed much store in the judgment of this court in
Ivanov
v North West Gambling Board
.
9
But on reflection I
am convinced that the decision in
Ivanov
is wrong in so far
as it held that the appellant in that case was entitled to
unqualified restoration of possession of his spoliated
gambling
machines, even though his possession thereof constituted a
contravention
of the provisions of
s 9(1)
of the
National Gambling Act 7 of 2004
and a criminal offence under
s 82
of that Act.
[13] It is trite
that the mandament van spolie has only two requirements: peaceful and
undisturbed possession of property and the
unlawful deprivation of
such possession. It is also trite that the spoliated person must be
restored to his or her former position
before competing claims to
title or to possession are considered and that in consequence lawful
title to possession is not a requirement
for sucess. The rule that
goods dispossessed against the will of the possessor must be restored
forthwith, however, is not an absolute
one. A legally admissible
defence that might be raised against an application for a mandament
van spolie is the one that was raised
in
Ivanov
and
also in the present matter, which is that restoration of possession
is not possible
10
because the possession thereof by the spoliated person would not only
be unlawful but would in fact constitute a criminal offence.
[14] It is not the
requirements of the mandament van spolie that were in issue in
Ivanov
,
nor are they any longer in issue in this appeal. There are also no
competing claims to possession of the vehicle in question by
the
respondents. The provisions of s 68(6)(
b
)
of the Act prohibit the appellant from being in possession of the
vehicle which he might otherwise lawfully possess. In terms
of
s 89(3) of that Act, contravention of s 68(6) amounts to a
criminal offence rendering an accused liable on conviction
to a fine
or imprisonment not exceeding a period of three years. As was said by
Mpati DP in
Basie
Motors
11
‘…
possession
of a vehicle where there has been tampering with its engine or
chassis number is forbidden: the
National Road Traffic Act does
not
confer authority on anyone to allow it.’
and, I venture to add, least of all
the courts of this country.
[15] The
appellant’s possession of the vehicle for now - until such time
as a police clearance is issued and the vehicle is
registered in
accordance with the provisions of the Act - will thus be unlawful
according to the criminal law.
12
The police cannot lawfully release the vehicle to the appellant,
whether he is the owner or erstwhile lawful possessor thereof.
An
order by a court that it be done will be no different than ordering a
person to be restored in the possession of his or her
heroin or
machine gun which he or she may not lawfully possess. In fact, when
counsel for the appellant was invited in argument
to distinguish this
case from a claim by the former possessor of heroin, he was unable to
do so. To my mind , that finally illustrates
why the
Ivanov
approach cannot be sustained.
[16] In my view,
therefore, the principle enunciated in the cases discussed in
Pakule
and
Tafeni
applies with equal force to a spoliation claim as
it does to a claim under s 31 of the CPA. If this court were to
direct that possession
of the vehicle be restored to the appellant,
it would be ‘lending its imprimatur to an illegality’.
13
Consequently, were this court to grant the relief sought, it would be
party to allowing ‘a state of affairs prohibited by
law in the
public interest’.
14
As Innes CJ pointed out in
Hoisain v Town Clerk, Wynberg
1916 AD 236
at 240
'It
is sought to compel the Town Clerk to place the applicant's name upon
the statutory list; he can only do that upon the grant
of a
certificate by the Council, which that body has definitely refused to
give. Such a certificate is not in truth in existence.
So that the
Court is asked to compel the Town Clerk to do something which the
Statute does not allow him to do; in other words
we are asked to
force him to commit an illegality.’
In
Essop
v Abdullah
1988 (1) SA 424
(A), this
court restated the principle that no court will compel a person to
perform an illegality. The relief sought by the appellant,
namely
possession of the vehicle, would have the result of compelling the
police to commit an illegality.
15
That a court should and cannot do. In these circumstances, the
appellant is not entitled to spoliatory relief.
16
[17] I now turn to
the question of the costs. The necessity for this is largely
occasioned by the fact that the high court, whilst
finding that the
seizure of the appellant’s motor vehicle was unlawful and
setting it aside, declined to order the release
of the motor vehicle
to the appellant. It did so because, as I have already said, it
considered that such an order was precluded
by virtue of s 68(6)(
b
)
read with s 89(1), (2) and (3) of the Act. Consequently, it ordered
‘each party to pay its own costs’.
[18] Although the high court did not
furnish reasons for its costs order it may reasonably be inferred
that it considered, in the
exercise of its discretion, that neither
party had achieved substantial success to warrant a costs order in
their favour. In this
regard it is well to remember that the
proceedings in the high court revolved around the issue of lawfulness
or otherwise of the
search, seizure and continued detention of the
appellant’s motor vehicle by the police. This was the principal
relief sought
by the appellant. Concerning this, the parties advanced
diametrically opposed contentions. In the event the high court found
the
search and seizure of the vehicle unlawful but not its continued
detention. Accordingly, a court of appeal should be slow to interfere
with a costs order of a court of first instance. Thus, this is not an
appropriate case in which intervention is warranted.
[19] In the result the following order
is made:
The appeal is dismissed with costs
such costs to include the costs of two counsel.
_________________
X M PETSE
JUDGE OF APPEAL
Appearances:
Appellant: S M Mbenenge SC (with him A
M da Silva)
Instructed by:
Mvuzo Notyesi Inc, Mthatha
Israel Sackstein Matsepe Inc,
Bloemfontein
Respondents: N K Dukada SC (with him M
M Matyumza)
Instructed by:
The State Attorney, Mthatha
The State Attorney, Bloemfontein
1
Nino
Bonino v De Lange
1906 TS 120
at 122.
2
See:
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) at 634E-I, where it was stated that where factual
disputes in motion proceedings arise, relief may only be granted if
the
facts averred in the applicant’s affidavit that have been
admitted by the respondent, together with the facts alleged by
the
respondent, justify the order sought;
President
of the Republic of South Africa & others v M & G Media Ltd
2011
(2) SA 1
(SCA) paras 13-14.
3
Marvanic
Development (Pty) Ltd & another v Minister of Safety &
Security & another
2007 (3) SA 159
(SCA);
Pakule v
Minister of Safety & Security & another; Tafeni v Minister
of Safety & Security & another
2011 (2) SACR 358
(SCA).
4
Id.
See also:
Basie Motors BK t/a Boulevard Motors v Minister of
Safety & Security
(SCA case no 135/2005;
[2006] ZASCA 35
; 28
March 2006);
Absa Bank Ltd & Another v Eksteen
(SCA case
no 81/2010;
[2011] ZASCA 40
; 29 March 2011).
5
Footnote
3.
6
Footnote
3.
7
Footnote
4.
8
Absa
Bank Ltd & another v Eksteen
(SCA case no 81/2010;
[2011]
ZASCA 40
; 29 March 2011 para 12).
9
Ivanov
v North West Gambling Board
2012 (6) SA 67
(SCA) paras 18-19.
10
CG
van der Merwe
Sakereg
2de Uitgawe (1989) 133-137.
11
Footnote
4 para 16.
12
Minister
van Wet en Orde v Erasmus & ‘n ander
[1992] ZASCA 100
;
1992 (3) SA 819
(A) at 822F-824D.
13
Per
Ponnan JA in
Hubbard v Cool Ideas
1186 CC (SCA case no
311/12;
[2013] ZASCA 71
; 28 May 2013).
14
Id
para 11.
15
See
also
City of Tshwane Metropolitan Municipality v RPM Bricks (Pty)
Ltd
2008 (3) SA 1
(SCA) para 16.
16
See
also
Zulu v Minister of Works, KwaZulu, & others
1992 (1)
SA 181
(D) at 186D
.