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[2010] ZAGPPHC 290
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Duffield v Minister of Police and Others (71827/09) [2010] ZAGPPHC 290 (15 January 2010)
IN THE NORTH
GAUTENG HIGH COURT - PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
CASE
NUMBER: 71827/09
DATE:
15 JANUARY 2010
THE HONOURABLE
ACTING In the application of:
ROGER BAYLIS
DUFFIELD
And
MINISTER OF
POLICE
..................................................................................
First
Respondent
SUPERINTENDENT
GERRIE AGENBACH
..........................................
Second
Respondent
INSPECTOR
MTIMKHULU
......................................................................
Third
Respondent
CAPTAIN
SHONGWE
..............................................................................
Fourth
Respondent
CAPTAIN
MASITE
.....................................................................................
Fifth
Respondent
CAPTAIN
MASEKO
..................................................................................
Sixth
Respondent
JUDGMENT
INTRODUCTION AND
BACKGROUND
[1] In this matter
an application was brought originally by the applicant in terms of
which the applicant's undisturbed possession
of certain items and
documents which were confiscated by the third respondent should be
restored immediately and without delay.
[2] A second court
order was issued instructing the second to fifth respondents to
Immediately comply wsth the court order I had
previously granted The
second to fifth respondents are the specific policemen who should
have complied with the onginal court order
Both court orders referred
to above were granted on 23 November 2009
[3] The second,
third and fourth respondents refused to comply with the first court
order after it was served on them. The fifth
respondent was presented
with the court order and it was served on her after 20h00 on 23
November 200-9 She stated that she did
not have the key to the
so-called SAP 13 office which he'.d the confiscated items She sa;d
that the appltcant had to return on
24 November 2009. which the
appiicant duly did together with relevant sherrff The second order
was then served on the first, second,
third and fourth respondents.
The second, third and fourth respondents again refused to give
adherence to both the court orders
and referred the applicant to the
sixth respondent who was apparently in charge of tne so-called SAP 13
The sixth respondent then
chased the applicant and the sheriff from
his office uttering the following words *l am not giving these goods
back, get out of
my office* The applicant states that he was
extremely aggressive and they had no alternative but to leave
[4] In the answenng
affidavit the deponent, Mtsibile Joseph Seioane, a senior
superintendent and a senior legal administration officer
for the
provincial legal services for the Mpumalanga South African Police
Services, states that the court order granted against
the first
respondent, the Minister of Police, was not an order against any
member of the SAPS or the Minister of Police. Since
the court order
was against the Minister of Police, the second respondent referred
the matter to the deponent. That was apparently
the basis on which
the respondents refused to comply with the court order
[5] In the affidavit
it is stated that an inspector Ngwane was responsible for the SAP13
items, that he was only working office
hours, and that he did not
have a cellphone Only he could apparently comply with the court order
It is stated that the respondents
could not therefore comply with the
court order as they had no access to the SAP13 storeroom.
[6] As a result of
this it Is stated that the respondents had no authority over the
items which were kept in the SAP13 storeroom,
and that the
respondents could therefore not comply with the court order and had
no intention to comply therewith.
[7] It is also
stated that the second respondent understood the court order simply
as a draft as the court order indicated that
it was a draft order I
find that expJanafeon in the light of the fact that the shenff
accompanied the applicant s»mpJy untenable
and far¬fetched
The order was properly signed and stamped, and she could have phoned
the after hours number of the court to
determine the veracity of the
court order. Both my clerk and I would have been able to have
verified it
[8] The respondents
have not dealt with properly with the allegations that the second,
third and fourth respondents refused to adhere
to the court orders on
24 November 2009.
[9] The denial by
the deponent pertaining to the actions of the sixth respondent also,
without any further explanation, appears
to me to be not sufficient
The sixth respondent does not at all deal with the allegations made
in the founding affidavit pertaining
to his attitude to the court
order and his refusal to abide by the court order
[10] When the
application was brought, it was not clear if the court orders had at
that time been complied with or not. There was
however an undertaking
given that the court orders would be complied with.
[11] In the light of
the decision of Fakio No v CCII Systems (Pty) Ltdf I must be
convinced that the respondents acted wilfully
and mala fido by not
complying with the two court orders
[12] I am of the
view that the applicant has mad© out a case In the founding
affidavit in this regard pertairung to the second,
third fourth and
sixth respondents.
[13] The defence
ra:sed in the answering affidavit that it was actually the Minister
of Police himself who had to comply with the
court order and that
because they, th8 respondents, were not cited by name they did not
have to comply with the court order is
so ludicrous that I have no
hesitation to re;ect that version There is simply no possibility that
any member of the SAPS could
ever have reasonably thought that the
Minister of Police was ordered by this court to drive over to their
ponce station to personally
hand over the relevant items to the
applicant In fact this defence :s so ludicrous, ridiculous and
without foundation that it justifies
a special costs order under the
circumstances.
[14] I am of the
view that there is clear and unequivocal evidence that the second
third, fourth and sixth respondents did not comply
with the two court
orders while they had full knowledge of the effect and contents
thereof, and under circumstances where they
should have
[2006] ZASCA 52
;
2006 (4) SA
326
(SCA) taken steps to attempt to comply therewith. If they had
explained to me that they had attempted to get hold o* the sixth
respondent, and that they could not do so after hours, their
situation may have been different However they simply did not attempt
to do anything regarding the first court order They had an arrogant
and unacceptable attitude pertaining to the first court order
which
culminated in the refusal of the sixth respondent to comply with the
court order
[15] There is no
doubt in my mind that the applicant has shown beyond reasonable doubt
that the second, third, fourth and sixth
respondents had acted
wilfully and mala fide in respect of both the court orders. This is
in particular so regarding the sixth
respondent.
[16] I therefore
have no hesitation whatsoever in coming to the conclusion that, in
the absence of any evidence casting reasonable
doubt upon my
conclusion, the relief sought by the applicant should be granted1.
[17] I am therefore
of the view that the following order should be made.
BY ORDER OF
COURT.
REGISTRAR