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[2011] ZASCA 107
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Pakule v Minister of Safety and Security and Another, Tafeni v Minister of Safety and Security and Another (440/10, 439/10) [2011] ZASCA 107; 2011 (2) SACR 358 (SCA); [2011] 4 All SA 159 (SCA) (1 June 2011)
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IN THE SUPREME COURT OF APPEAL
JUDGMENT
In the matters between:
Case No: 440/10
MASIXOLE PAKULE
............................................................................................................
Appellant
and
MINISTER OF SAFETY AND SECURITY
............................................................
First
Respondent
THE STATION COMMISSIONER,
MTHATHA CENTRAL POLICE STATION
......................................................
Second
Respondent
Case No: 439/10
ARCHIE TAFENI Appellant
and
MINISTER OF SAFETY AND SECURITY
............................................................
First
Respondent
THE STATION COMMISSIONER,
MTHATHA CENTRAL POLICE STATION
......................................................
Second
Respondent
Neutral Citation:
Pakule and Tafeni v Minister of Safety
and Security
(440/10 & 439/10) [2011] 107 (1 June
2011)
Court:
NUGENT AND LEWIS JJA AND MEER AJA
Heard: 23 May 2011
Delivered: 1 June 2011
Summary:
Search and seizure under
ss 20
and
22
of the
Criminal
Procedure Act 51 of 1977
- police may lawfully seize items even where
when first seized there was no ground for reasonable belief that item
concerned in
commission of offence - police may not return a vehicle
to person from whom seized if that would be contrary to
s 68(6)(
b
)
of the
National Road Traffic Act 93 of 1996
.
ORDERS
On appeal from:
Eastern Cape High Court (Mthatha)
(Alkema J sitting as court of first instance in both cases):
Pakule v Minister of Safety and Security &
another
The appeal is dismissed with costs including those of
two counsel.
Tafeni v Minister of Safety and Security &
another
The appeal is dismissed with costs including those of
two counsel.
________________________________________________________________
JUDGMENT
LEWIS JA AND MEER AJA (NUGENT JA concurring)
[1] In the Eastern Cape High Court,
Mthatha, there have emerged two lines of cases that approach the
application of
sections 20
and
22
of the
Criminal Procedure Act 51 of
1977
differently. Alkema J, in the two decisions before us on appeal,
refers to these as ‘two schools of thought’ which have
resulted in conflicting decisions. In granting leave to appeal in
both cases he suggested that this court should resolve the conflict.
This is particularly so because the one approach is endorsed in a
decision of the full court:
Hiya
v The Minister of Safety and Security & another.
1
[2] In brief, that case and others have held that where
the seizure of an article is not based on reasonable grounds in the
first
instance, the property – usually a vehicle – must
be returned to the owner or possessor despite evidence discovered
after the seizure that there are grounds reasonably to believe that
the article has been involved in the commission of an offence,
and
despite the fact that no one may possess a vehicle which has been
tampered with in various ways (a matter to which we shall
return). In
other decisions the view has been taken that where the initial
belief, though at first not based on reasonable grounds,
is
subsequently well-grounded, the seizure is lawful and the police may
retain the article.
[3] Alkema J said, in his judgment granting leave to
appeal in Tafeni’s case, that applications for return of a
vehicle seized
by the police are common in that court and that it is
imperative that a definitive answer be provided so that there is
consistency
in the approach to the applications for return of an
article alleged to have been unlawfully seized.
[4] It should be noted at the outset, however, that in
both these cases the vehicles were in fact seized lawfully, in terms
of
ss 20
and
22
of the Act, and that the decisions did not turn on
the question that this court has been asked to resolve. In our view
it is nonetheless
important to determine the proper approach to the
issue raised by Alkema J.
[5] The sections of the Act central to the decisions are
set out in full below.
Section 20
provides:
‘
State may seize certain articles
The State may, in accordance with the provisions of this Chapter,
seize anything (in this Chapter referred to as an article) –
(
a
)
which is concerned in or is on reasonable grounds believed to be
concerned in the commission or suspected commission of an offence,
whether within the Republic or elsewhere;
(
b
)
which may afford evidence of the commission or suspected commission
of an offence, whether within the Republic or elsewhere; or
(c)
which is intended to be used or is on reasonable grounds
believed to be intended to be used in the commission of an offence.’
Section 22
reads
‘
Circumstances in which article may be
seized without search warrant
A police official may without a search warrant search any person or
container or premises for the purpose of seizing any article
referred
to in
section 20
-
if the person concerned consents to the search for and the seizure
of the article in question, or if the person who may consent
to the
search of the container or premises consents to such search and the
seizure of the article in question; or
(b)
if he on reasonable grounds believes-
(i) that a search warrant will be issued to him under paragraph (a)
of
section 21(1)
if he applies for such warrant; and
(ii) that the delay in obtaining such warrant would defeat the object
of the search.’
[6] In the first line of decisions it
has been held that where there is no ground for believing,
reasonably, that an article is
concerned in the commission of an
offence (or a suspected commission of an offence), at the time of the
seizure, even if such belief
subsequently turns out to be warranted,
then the seizure is unlawful and the article must be returned. In
Hiya
,
2
for example, the decision of the full
court referred to, a police official received information that a
vehicle suspected of being
stolen was seen on the road. He obtained a
warrant and seized the vehicle. After the seizure the vehicle was
found to have suspicious
features: a ground engine number and altered
chassis number. A finding that the seizure of the vehicle fell within
the purview
of
s 20
was set aside by the full court. The vague
allegations by the policeman about information he had received which
prompted the seizure
were found not to suffice for a reasonable
belief under
s 20
of the Act. The release of the vehicle was ordered.
[7] The first approach has been based
on a restrictive interpretation of
ss 20
and
22
, given that they
allow for limitations on fundamental rights, entrenched in the
Constitution. In
Magobodi
,
for example, the court held that the rights to privacy and property
were affected by the search and seizure provisions which therefore
had to be limited.
[8] On the other hand, it has been
held that where evidence of tampering with engine and chassis numbers
is discovered, that in
itself constitutes a reasonable ground for
believing that a vehicle had been stolen. See, for example,
Mbutuma
v The MEC for Safety and Security of the Eastern Province
.
3
In that case, when looking for a
vehicle suspected to be stolen at the applicant’s premises, the
police decided to inspect
two other vehicles at the premises, and
discovered the tampering. They seized the vehicles even though they
had had no prior ground
for suspecting that they were involved in the
commission of an offence. Madlanga J said that it was ‘common
knowledge’
4
that engine and chassis numbers would
be tampered with where it is intended that a stolen vehicle be sold
intact. Such tampering
would ground a reasonable belief that the
vehicle has been stolen and would justify a seizure without warrant
or the consent of
the owner.
[9] Moreover, as pointed out by Alkema J, in granting
leave to appeal in Tafeni’s case, once vehicles have been
seized, and
it is ascertained that the engine and chassis numbers
have been tampered with, the police may not return them even to the
owner:
ss 68
and
89
of the
National Road Traffic Act 93 of 1996
.
[10] I turn now to the facts in each of these appeals.
Pakule
[11] The appellant, Masixole Pakule, is a taxi operator
in the district of Qumbu, Eastern Cape Province. During January 2008
Pakule’s
motor vehicle, a Toyota Hilux, was seized by members
of the South African Police Services when it was found abandoned on
the side
of a road. Pakule applied to the Eastern Cape High Court,
Mthatha for an order declaring the search, seizure and continued
detention
of his motor vehicle to be unlawful, and for its return.
Alkema J dismissed the application.
[12] The uncontested evidence of Detective Inspector
Mncwati, stationed at the Vehicle Identification Section and
Safeguard Unit,
Mthatha, was that Pakule employed Sithembiso Pakule
as a driver of his taxi. He was wanted for armed robbery. The police
received
information that he was driving the vehicle concerned in the
Marhambeni location.
[13] Inspector Phatakubi located the vehicle, the driver
sped away and the police gave chase. The driver abandoned the vehicle
next
to the road and was pursued on foot by the police. The driver
fired a shot at the police who returned fire and wounded him. He was
arrested and returned to the vehicle. The vehicle was inspected by
the police. They discovered that it had neither number plates
nor a
licence disc and that the driver was not in possession of a driver’s
licence. The vehicle was seized by the police.
The driver was taken
for medical treatment. After his arrest, he was charged with robbery.
However, the vehicle seized was not
suspected of being connected with
the robbery.
[14] It was, however, discovered that the original
chassis and engine numbers had been filed off and replaced with new
numbers which
were slanted and appeared not to be stamped
professionally. Enquiries were made about the identity of the motor
vehicle to Toyota
South Africa, and the vehicle chassis and engine
numbers were referred to the Pietermaritzburg Licensing Authority for
verification
and confirmation. The investigations regarding the
vehicle appear still to be pending.
[15] From the evidence it is clear that the vehicle was
seized because of the absence of a license disc and number plates and
because
the driver was driving without a licence. This was
immediately evident to the police officers before they seized the
vehicle. These
factors constitute contraventions of the
National Road
Traffic Act. Section
4(2) of that Act requires all motor vehicles to
be registered and licensed.
Section 12
provides that no person shall
drive a motor vehicle on a public road without being in possession of
a valid driver’s licence.
Section 68
, among other things,
relates to unlawful acts in relation to registration plates and
numbers.
Section 89(1)
makes it an offence to contravene or fail to
comply with any provision of the
National Road Traffic Act. And
s
89(2)
provides for fines or imprisonment upon conviction, not
exceeding six years.
[16] The failure to have number plates and licence disc,
and driving without a licence accordingly all constituted criminal
offences
in which the motor vehicle was involved. There can be no
doubt that the police officers who seized the vehicle had grounds
reasonably
to believe this to be the case. There would also in the
circumstances have been grounds reasonably to believe that if the
facts
recorded above were placed before a magistrate, a search
warrant would have been issued under
s 22(
b
) of the
Criminal
Procedure Act. The
police officers who seized the vehicle were
accordingly entitled to do so in terms of
s 20
read with
s 22(
b
)
of the Act. The high court thus correctly refused the application.
Tafeni
[17] The appellant, a taxi operator in the Ngqeleni
district, Eastern Cape was deprived of possession of his vehicle by
members
of the South African Police Services (SAPS). He applied to
the Eastern Cape High Court, Mthatha for an order declaring the
search,
seizure and continued detention of his vehicle to be unlawful
and for its return to him. Alkema J dismissed the application but
gave leave, as we have said, to appeal to this court.
[18] The facts are largely not in dispute. On the
afternoon of 14 January 2009 Captain Kwanini and Inspector Mtshengu,
members of
the South African Police Service, attached to the Vehicle
Identification Section and Safeguard Unit, were on official duty at
Ngqeleni
Village, in the Eastern Cape. They noticed a white Toyota
Hilux motor vehicle parked close by. Passengers were alighting from
the
vehicle. It appeared as if the white paint on the vehicle was
superimposed over red paint and this aroused their suspicion that
the
vehicle might be stolen. The affidavit of Kwanini explained that both
he and Mtshengu had attended a motor vehicle identification
course
which equipped them ‘with expert knowledge to be able to make a
reasonable observation in respect of a suspiciously
defaced vehicle’.
[19] They approached the driver of the vehicle,
identified themselves as police officers and informed him of their
suspicion that
the vehicle he was driving was stolen, because of the
white paint superimposed over the red. They asked the driver to
accompany
them to the police station where the vehicle would be
inspected. He agreed but asked to be allowed first to drop off the
remaining
passengers at the taxi rank, which he did. Thereafter the
police officers escorted the vehicle to the Ngqeleni police station.
[20] There, the driver identified himself as Lusindiso
Nozintaba and said that the vehicle was owned by the appellant, Mr
Tafeni,
who employed him as a taxi driver. Captain Kwanini explained
that due to their suspicions the police officials wanted to search
the vehicle to investigate if it was an item liable to be seized by
the State. Kwanini again asked Nozintaba for permission to
search and
the latter consented.
[21] The police officers opened the bonnet and
discovered that the inner fenders were painted red whilst the body of
the vehicle
was white. They observed that the tags on the engine wall
were not the original tags. It was clear to them that these had been
removed and other tags remounted onto the engine wall. An application
of acetone revealed that the engine and chassis numbers had
been
interfered with. The spacing between the numbers was observed to be
unequal and the numbers had been defaced. The engine numbers
were
hand punched as opposed to computer generated and professionally
imprinted.
[22] Captain Kwanini telephoned Tafeni and asked him to
come urgently to the police station. He was asked to produce
documents proving
his ownership of the vehicle but was unable to do
so. He said he had bought the motor vehicle painted white from one
Gxaba. According
to Kwanini when it became clear that Tafeni could
not prove ownership, he was informed that the law compelled them to
seize the
vehicle for further investigation, based on the discoveries
which Tafeni could not explain.
[23] Kwanini informed Tafeni that the vehicle would not
be released until he brought the previous owner to account for the
irregularities
on the vehicle. A statement was taken from Tafeni and
the vehicle was towed away. Kwanini then filled in a seizure form. A
subsequent
inspection of the vehicle, by an expert from Toyota South
Africa, confirmed that the motor vehicle had been tampered with in
several
material ways.
[24] Thereafter continuous requests for Tafeni to bring
the previous owner of the vehicle to the police to assist in the
investigation
came to nought. Ultimately the appellant was arrested
and charged for unlawful possession of a motor vehicle. There are
currently
pending criminal proceedings against him. The vehicle is an
exhibit in such proceedings.
[25] It is clear that at the time when the vehicle was
seized (at the police station) the police had already discovered the
evidence
that grounded a reasonable suspicion (objectively) that it
was concerned in the commission of a criminal offence. And indeed,
Kwanini
informed Tafeni at the police station that the law compelled
them to seize the vehicle for further investigation, based on the
discoveries they had made. Before then the vehicle had not been
seized but driven by Tafeni’s driver to the police station
for
the purpose of searching it. At the time the vehicle was seized,
therefore, it had already been searched with the requisite
consent as
specified in
s 22(
a
). The court below correctly dismissed the
application for the return of the vehicle to Tafeni.
The principles applicable in both cases
[26] As we have said, in both the Pakule and Tafeni
mattters, the seizures were lawful at the outset. 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)
, 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.
[27]
Section 68(6)(
b
)
of the National Road Traffic 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.’
In terms of s 89(3) of that Act, a contravention of s
68(6) amounts to a criminal offence rendering the accused liable on
conviction
to a fine or imprisonment not exceeding a period of three
years.
[28] In
Marvanic
Development (Pty) Ltd & another v Minister of Safety and Security
& another
5
the appellants sought the return of
two vehicles that had been seized by the police on suspicion that
they had been stolen. The
suspicion arose after it was found that the
registration and chassis numbers had been tampered with. Criminal
charges were laid
against the appellants for being in possession of
stolen property and for fraud, but these were later withdrawn. The
appellants
claimed the return of their vehicles on the basis of s
31(1)(
a
)
of the
Criminal Procedure Act which
provides that if no criminal
proceedings are instituted in connection with any article seized, it
shall be returned to the person
from whom it was seized. Their claim
failed on the basis that
s 68(6)(
b
)
of the
National Road Traffic Act prohibited
them from being in
possession of the vehicles even as owners. Lewis JA writing for the
majority said:
6
‘
[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
possession lawful.’
[29] That
s 68(6)(
b
)
does not permit the possession and consequently return of vehicles
that have been tampered with, even to their owners, was again
emphasised by this court in
Basie
Motors BK t/a Boulevard Motors v Minister of Safety and Security
.
7
In that case too a claim by the owner
under
s 31(1)(
a
)
of the
Criminal Procedure Act for
the return of a vehicle seized by
the police failed. The chassis numbering, it was discovered, had been
tampered with. Mpati DP
said:
8
‘
[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.’
[30] More recently in
Absa
Bank v Eksteen,
9
another matter in which tampered
chassis and engine numbers were revealed after a vehicle was seized
by the police, Nugent JA stated,
on
the authority of
Marvanic
,
that the seizure by the police under
statutory authority, was not capable of being resisted. The fact that
the owner might be capable
of later acquiring the right to possession
is immaterial.
[31] In the light of the decisions of this court there
can and 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
s 68(6)
of the
National Road
Traffic Act are
present.
[32] And, as we have said, even if a seizure (of a
vehicle or any other article) was initially based on grounds that
were not reasonable,
where the police discover subsequently that
there are indeed grounds for a reasonable belief that an article is
concerned in the
commission of an offence, they may then seize it
lawfully. A return to the person from whom the item was seized would
be an exercise
in futility, bearing in mind that at the moment of
return the article might lawfully be seized again.
[33] We consider therefore that Alkema J’s
approach to the application of
ss 20
and
22
of the
Criminal Procedure
Act is
correct, and that both appeals must fail.
[34]
Orders
Pakule v Minister of Safety and Security &
another
The appeal is dismissed with costs including those of
two counsel.
Tafeni v Minister of Safety and Security &
another
The appeal is dismissed with costs including those of
two counsel.
_____________
C H Lewis
Judge of Appeal
_____________
Y S Meer
Judge of Appeal
APPEARANCES:
PAKULE
APPELLANT: S M Mbenenge SC (with him A M da Silva)
Instructed by
Mvuzo Notyesi Inc,
Mthatha;
Matsepes Inc,
Bloemfontein.
RESPONDENTS: N K Dukada SC (with him M Gabavana)
Instructed by
C B Nguza & Associates,
Mthatha;
The State Attorney,
Bloemfontein.
TAFENI
APPELLANT: S M Mbenenge SC (with him A M da Silva)
Instructed by
Mvuzo Notyesi Inc,
Mthatha;
Matsepes Inc,
Bloemfontein.
RESPONDENTS: N K Dukada SC (with him L Matoti)
Instructed by
C B Nguza & Associates,
Mthatha;
The State Attorney,
Bloemfontein.
1
Hiya
v The Minister of Safety and Security & another
,
unreported , case no: 506
/99.
2
See
also
Magobodi v Minister of Safety and Security & another
2009 (1) SACR 355
(TkHC);
Dyani v Minister of Safety and Security
& others
2001 (1) SACR 634
(TkD) and
Mnyungula v Minister
of Safety and Security & others
2004 (1) SACR 219 (TkHC).
3
Mbutuma
v The MEC for Safety and Security of the Eastern Province
1998
(1) SACR 367
(TkD).
4
At
370
b-e
.
5
Marvanic
Development (Pty) Ltd & another v Minister of Safety and
Security & another
2007 (3) SA 159
(SCA).
6
Para
8.
7
Basie
Motors BK t/a Boulevard Motors v Minister of Safety and Security
(135/05
[2006] ZASCA 35
(28 March
2006).
8
Para
16.
9
Absa
Bank Ltd & another v Eksteen
(81/10)
[2011] ZASCA 40
(29
MARCH 2011) paras 1 and 12.