About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2023
>>
[2023] ZAFSHC 174
|
|
Mini Developments CC v Minister of Police and Another (5188/2022) [2023] ZAFSHC 174 (18 May 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
5188/2022
In
the matter between
:
MINI
DEVELOPMENTS CC
Applicant
and
MINISTER
OF POLICE
1
st
Respondent
THE COMMANDER, VEHICLE
CRIME
INVESTIGATION
UNIT WELKOM
2
nd
Respondent
CORAM
:
RAMDEYAL AJ
HEARD
ON
:
11 May 2023
DELIVERED
ON
:
18 May 2023
[1]
This is an application for a declaratory order to have the forfeiture
of the applicant’s
trailers by the South African Police (SAPS)
be declared unlawful and invalid; that the 2
nd
respondent
or in his absence a substitute police officer, issue a South African
Police Vehicle Identification Pin (SAPVIN) for
the trailers and a
clearance certificate in terms of the National Road Traffic
Regulation.
[2]
It is trite that the SAPS on 15 October 2019 seized the trailers,
which belonged to the
applicant, on the basis that the Vehicle
Identification Numbers (VIN) of the trailers had been tampered with.
Thereafter on the
20
th
of February 2020 the trailers were
confiscated and forfeited to the state.
[3]
The applicant in essence seeks the return of the trailers on the
basis that more than three
years have passed and no criminal
prosecution instituted against the applicant or any other person, nor
has SAPS proven that the
trailers were indeed stolen.
[4]
The respondents in this matter contend that this application for
declaratory relief is
actually incorrect as an application for review
in terms of the Promotion of Administrative Justice Act 3 of 2000
(PAJA) is the
correct remedy and that this Court cannot encroach on
the exclusive institutional power of another organ of State. The
respondents
further contend that their declaration of the trailers as
forfeited to the state is lawful.
[5]
The answering affidavit of the respondent as per pages 115 - 121 of
the court bundle explains
the details of the tampering of the
trailers. It is apparent that on 15 October 2019 two trailers were
seized by Warrant Officer
Kruger, employed by SAPS. The trailers were
seized due to the tampering of the vehicle identification numbers or
chassis numbers.
The first trailer with registration number CBS 5[…]
had 2 different VIN numbers relating to 2 different manufacturers.
The
VIN number tags appeared to be self- made, with grind marks
indicating alteration and falsity. The 2 different VIN numbers
belonging
to 2 different manufacturers indicated that the origins of
the trailers were being hidden. In the second trailer, registration
number CBS 5[…], a false tag was found with ‘’pop
rivet holes’ indicating that numerous tags were previously
placed on the trailer as well as other colours of paint were
discovered where the vin number is situated. Clearly in light of the
undisputed facts section 68(6) of the National Road Traffic Act, Act
93 of 1996 was contravened.
[6]
Section 68(6)
of the
National Road Traffic Act, 1996
states that:
“
a)
no person shall with intent to deceive, falsify, replace, alter,
deface, mutilate add anything to or remove anything from or
in any
other way tamper with the engine or chassis number of a motor
vehicle; or
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.”
[7]
The respondents seized the trailers in terms of s 20 of the Criminal
Procedure Act
51 of 1977 (The Act) which allows the respondent to
‘seize any article which is concerned in or on reasonable
grounds believed
to be concerned in the commission of an offence’.
Evidence of tampering with engine and chassis numbers in itself
constitutes
a reasonable ground for believing that a vehicle has been
stolen.
[8]
In
Mbutuma
v The MEC for Safety and Security of the Eastern Province
[1]
it was said that:
“
it
is common knowledge that tampering with engine and chassis numbers
takes place almost invariably where stolen motor vehicles,
instead of
being scrapped and sold in parts are, intended to be transferred
intact. This is done so that the motor vehicle cannot
easily be
traced back to the owner from whom it was stolen. Naturally,
therefore, a discovery by the police that the engine and
chassis
number have been tampered with would ground a reasonable belief that
a motor vehicle has been stolen and such motor vehicle
would then
afford evidence of the commission or the suspected commission of the
theft.”
[9]
In
Marvanic
Development (Pty)(Ltd) and Another v Minister of Safety and Security
and Another
[2]
Lewis JA said:
“
...that
s 68(6) was clearly designed to change the law in this regard. It
expressly precludes possession of vehicles in particular
circumstances, which the appellants admit to have been present. The
mischief that the legislation sought to prevent was the possession,
and thus the use, of vehicles where there has been tampering with
engine or chassis numbers, almost invariably because the vehicles
have been stolen. The appellants’ possession would thus be
‘without lawful cause’ in contravention of s 68(6).
I
emphasise that it is not possession of the vehicle per se that is
unlawful: it is possession of a vehicle with false engine or
chassis
numbers that is without lawful cause”.
[10]
Possession of a vehicle where there has been tampering with its
engine or chassis number is forbidden,
the National Road Traffic does
not confer authority on anyone to allow it.
[3]
[11]
The trailers were declared forfeited to the state in terms of
s
31(1)(b)
of the
Criminal Procedure Act
51 of 1977
on the 26
th
of February 2020. The procedure
thereof is not actually in dispute. No criminal proceedings have been
instituted as yet and no
person was found to
lawfully
possess
the trailers. The applicants now seek remedy from the Court to
declare the forfeiture orders invalid and for the return
of the
trailers. The provisions of
section 31(1)(b)
of the
Criminal
Procedure Act are
clear.
“
If
no person may lawfully possess such article or if the police official
charged with the investigation reasonably does not know
of any person
who may lawfully possess such article, the article shall be forfeited
to the State.”
[12]
In
Dookie
v Minister of Law and Order & Others
[4]
the court held that the requirement that no criminal proceedings were
pending ‘would not be satisfied merely by proof that
no
proceedings were pending at the time of the institution of the
application for return of the article; but that it was necessary
for
the applicant to establish that there was no reasonable likelihood of
criminal proceedings being instituted in connection with
the article
in the foreseeable future. That
has
not actually been established in this matter by the applicant
however, criminal proceedings can be instituted at any time as
investigations never really seize.
[13]
The applicant submits that they did not know of any tampering until
it was pointed out to the driver, SAPS
made no attempts to establish
the original details of the trailers, the trailers have a legitimate
trade history as is evident
from the documentation on file, the
trailers have had many previous owners and it is obvious that they
must have been cleared by
the registration authorities and SAPS.
[14]
Paragraph 11 above clearly indicates that these
trailers were tampered with and is clearly unlawful to possess.
It
remains questionable as to how these trailers even passed through the
relevant registration authorities. Whilst no criminal
proceedings are
currently pending it remains a likelihood of proceedings being
instituted in the future resulting in these trailers
being needed for
trial.
[5]
[15]
The same principals were applied in
The
Minister of Police v Stanfield
[6]
which involved the retention of firearms by SAPS in terms of s
31(1)(a) of the CPA. At paragraph 22 it was said that:
“
this
court is not enjoined to finally decide whether the licences were
obtained unlawfully. That is the subject matter of the criminal
proceedings. This court must decide on a balance of probabilities,
whether the appellants retention of the firearms is justified.”
In the circumstances of
this matter, indeed the respondents’ retention of the trailers
appears justified.
[16]
I am alive to the decision of
Nqukumba
v Minister of Safety and Security and Others
[7]
that an individual can possess a tampered vehicle as long as there is
lawful
cause
for its possession, but Nqukumba’s case was dealt with in terms
of
mandament
van spolie
and where the police seized such tampered vehicle apparently
unlawfully
.
[17]
Interestingly the Supreme Court of Appeal
[8]
,
held that a vehicle seized by the police cannot be returned to a
person from whom such item was seized if any features as set
out in
section 68
(6) (b) of the
National Road Traffic Act are
present. The
manner in which these trailers were tampered with in this matter
clearly indicates the origin of ownership being hidden
hence, the
applicant therefore did not
lawfully
possess
these trailers.
[18]
In Pakule’s case at paragraph 31, the
Supreme Court of Appeal referred to the above decisions as discussed
and said that there should no longer be any doubt that a vehicle
seized by the police cannot be returned to persons from whom they
have been seized if any of the features referred to in
section 68(6)
of the
National Road Traffic Act are
present. A return of the
trailers to the applicants may in any event be a futile exercise as
the trailers may in any event be seized
again
[9]
.
[19]
The
lawfulness
of the seizure of the vehicles is not in
dispute. Features as mentioned in
section 68
are present; therefore,
the combatting of crime such as this must invoke the provisions of
section 20
and
31
of the CPA.
[20]
The applicant submits that
section 68
of the
National Road Traffic
Act is
an impediment to their possession and seeks an order that the
second respondent or a substitute thereof issue a SAP VIN to the
trailers, clear the trailers in terms of regulation 56(5)(b) of the
Traffic Regulations and issue a clearance certificate for it.
All
necessary documentation enabling the applicant to register the
trailers should be completed. The applicants were notified
that
the trailers were confiscated and forfeited to the state on26
February 2020. Some 3 years later they seek an order from this
court
in terms of a declaratory order declaring the forfeiture of the
trailers by SAPS as unlawful and invalid; for this court
to issue
SAPVIN numbers and to clear the trailers in terms of Regulation 56(5)
(b). The applicant in this matter, in my view should
have followed
the procedure as set out in the Regulations timeously. Regulation 56
of the National Road Traffic Regulations sets
out the procedure to be
followed for a vehicle owner to obtain from the police the new engine
or chassis numbers where they have
been tampered with.
[21]
An application for declaratory relief as sought by
the applicant is recognized
as an efficient and versatile remedy clarifying issues of law
expeditiously. The applicant seeks remedial action in the form of
what essentially amounts to a mandatory interdict.
[10]
According
to the respondents the applicant is precluded from doing so by the
subsidiarity principle whether by common law or the
principal of
legality.
[11]
[22]
PAJA is now in operation, enacted by the
Legislature to comprehensively give effect to a constitutional
right. The Promotion of Administrative Justice Act 3 of 2000 is
to give effect to the right to administrative action that
is lawful,
reasonable and procedurally fair. Courts should no longer be faced
with the difficult task of deciding what constitutes
administrative
action or what procedure should be followed since the recent decision
of the Constitutional Court pertaining to
the application of PAJA
appears to clear this issue. In
Esofranki
Pipelines (Pty) Ltd v Mopani District Municipality
[12]
the following was said:
“
PAJA
is, of course, now in operation and this dictum is therefore
instructive. This Court has on various occasions endorsed the
principle of subsidiarity. This principle provides that where
legislation is enacted in order to comprehensively give effect to
a
constitutional right, a litigant cannot bypass the relevant
legislation and rely directly on the Constitution or on the common
law, without challenging the constitutional validity of that
legislation. The principle has two foundational justifications: to
mitigate against the development of “two parallel systems of
law”, one judge-made and the other crafted by Parliament,
and
to ensure “comity between the arms of government” by
maintaining a ‘’cooperative partnership”
between
the various institutions and arms tasked with fulfilling
constitutional rights.
PAJA is constitutionally
mandated legislation, designed to give effect to section 33 in both
substantive and remedial terms. The
applicant did not specifically
base its case on section33. Nonetheless, its central submission was
that the respondent owed it
a legal duty, actionable in delict, not
to cause it to sustain economic loss through an intentional breach of
section 217. According
to the applicant, it is the alleged
intentional breach by the state of its duty to ensure just
administrative action in a tender
process, which is actionable in
delict. To make this finding, however, would subvert the principle of
subsidiarity. It would entitle
litigants to bypass the provisions of
PAJA, in order to hold the state liable in terms of the common law
and, in this way, give
rise to “two parallel systems of law”.
[23]
In conclusion, not only is it apparent that the applicant may have
used the incorrect remedy, it is clear
that Section 68 is designed to
prevent people from driving vehicles that are tampered with. At the
time the trailers were seized
the applicant possessed same
without
lawful cause
. The fact that these trailers were seized under
those circumstances as set out in Section 68 will not make their
return to the
applicant lawful. SAPS is responsible for the process
of issuing SAP VIN numbers and clearance certificates as ordained by
the
Legislature and as required by the applicant. Courts are
generally reluctant to encroach into its terrain. In the
circumstances
of this matter as discussed, I find no merit in the
application for an order to declare a lawful order of the respondent
invalid
and unlawful. Hence, I make the following order:
The application is
dismissed with costs.
_______________________
RAMDEYAL
AJ
On
behalf of the Applicant:
Adv. WA Van Aswegen
Instructed
by:
Cilliers and Associates
c/o Phatshoane Henney
cnr Markgraaff - &
Kellner street
Bloemfontein
(Ref: JVDB/SJ/CIL32/0002)
On
behalf of the Respondent: Adv. M.S
Mazibuko
Instructed
by:
c/o State Attorneys
10
th
Floor
Fedsure Building
49 Charlotte Maxeke
street
Bloemfontein
(Ref:
66/202000837/P17 M/tem)
[1]
1998
(1) SACR 367(Tkd)
at 370 c – d.
[2]
[2006]
SCA 20 (RSA) paragraph 10.
[3]
Basie
Motors BK t/a Boulevard Motors v Minister of Safety and Security
(135/05)
2006 ZASCA 35
at paragraph 8.
[4]
1991
(1) All SA 390
(D);
1991 (2) SACR 153
(D) at 156 C – E.
[5]
Van
der Merwe and another v Taylor No and Others
[2007]
ZACC 16
;
2008 (1) SA 1
CC para 51.
[6]
(1328/2018)
[2019] ZASCZA 183.
[7]
2014
ZACC 14.
[8]
Pakule
v Minister of Safety and Security and Another
;
Tafeni
v Minister of Safety and Security and Another
2011 (4) All SA 159
(SCA) 30 – 32.
[9]
See
Pakule
paragraph 32.
[10]
Paragraph
27 of applicant’s heads of argument
[11]
Respondents’
heads of argument paragraph 7.
[12]
2022
ZACC 41
;
2023 (2) SA 31
(CC) at paragraphs 45 and 46.