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[2022] ZAFSHC 198
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MEC: Department of Police, Roads & Transport Free State Province v Viljoen and Others (4404/2021) [2022] ZAFSHC 198 (19 August 2022)

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IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case Number:
4404/2021
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
In the matter between:
MEC: DEPARTMENT OF
POLICE, ROADS
& TRANSPORT FREE
STATE PROVINCE
Applicant
and
MAGISTRATE
VILJOEN
1
ST
Respondent
ADRIAAN VERNON
BOTHA
2
ND
Respondent
LAWRENCE OWEN
BUTHELEZI
3
RD
Respondent
CORAM
:                             CHESIWE,

J et VAN RHYN, J
HEARD
ON
:                        15

AUGUST 2022
DELIVERED ON:
19
AUGUST 2022
JUDGEMENT BY:
VAN
RHYN J
[1]
This is an application by the Member of the Executive Council for the
Department of Police, Roads &
Transport in the Free State
Province (the “applicant”) for the review of an order
granted on 28 May 2021 by the first
respondent, Magistrate Viljoen of
the Kroonstad Magistrates’ Court.
[2]
First respondent filed a notice to abide by the court’s
decision.
[3]
The matter is opposed by Mr. Adriaan Vernon Botha (the “second
respondent”), a major male
residing at K[....]. It is common
cause that the second respondent is the registered owner of a Toyota
Conquest motor vehicle with
registration number [....] (the
“Toyota”), which was seized and impounded by traffic
officials employed by the applicant.
[4]
The third respondent is Mr. Lawrence Owen Buthelezi, a major male
resident of Kroonstad. The third respondent
is not opposing the
review application.
[5]
The applicant seeks an order in following terms:
(1)
That the order granted by the first respondent on 28 May 2021 and in
terms whereof the first
respondent ordered that the motor vehicle
with registration number [....] be unconditionally handed over to the
second respondent
in terms of section 99(2)(b) of the Free State
Public Transport Act, Act 4 of 2005 (the “Act”), be
reviewed and set
aside; and
(2)
The order of the first respondent be replaced with the following
order:
“
It is ordered that
the motor vehicle with registration number [....] be returned to the
third respondent, on payment to the relevant
head of the depot, of
the amount determined by the MEC of the Free State Provincial
Department, Police, Roads & Transport.
[6]
The salient facts are as follows:
On 5 February 2021, the
third respondent (the then owner of the Toyota) was issued with a
notice in terms of the provisions of section
56 of the Criminal
Procedure Act
[1]
(the “CPA”)
to appear in the Magistrates’ Court, Kroonstad. The notice
called upon the third respondent to appear
at court on 28 April 2021
on a charge of conveying passengers for reward without the necessary
permit in contravention of section
102(1)(a) read with section
4(3)(a) of the Act.
[7]
Simultaneously with the issuing of the notice, the traffic officer
seized and impounded the Toyota with
which it is alleged that the
third respondent conveyed persons for reward without having the
necessary permit. As a norm the notice
embodied an option to the
third respondent to pay an admission of guilt fine in the amount of
R1 500,00 in lieu of an appearance
before court. Third respondent
elected not to pay the admission of guilt fine.
[8]
On 12 March 2021 and at the Kroonstad Magistrates’ Court the
first respondent convicted the third
respondent of the offence. The
first respondent imposed a sentence of six (6) months imprisonment
with an option of a fine in the
amount of R3000.00, which sentence
was wholly suspended for a period of five (5) years on condition that
the third respondent shall
not be convicted of contravention of
Section 102(1)(a) of the Act during the period of suspension.
[9]
The first respondent adjudicated upon an application for the return
of the Toyota brought by the second
respondent on 28 May 2021. The
transcription of the record of proceedings before the first
respondent in case number PVC 103/2021
in the matter between The
State and Owen Buthelezi, was filed by the applicant. From the
contents of the founding and answering
affidavits, as well as the
record of proceedings, the following facts appear:
9.1
During December 2020 the second and third respondents entered into an
oral agreement in terms
whereof the second respondent purchased the
Toyota from the third respondent in the amount of R 25 000.00
9.2
The parties agreed that R20 000.00 was payable on or before 31
December 2020, and the balance,
in the amount of R 5000.00, to be
paid to the third respondent on or before 7 February 2021. The third
respondent would retain
possession of the Toyota until final payment
of the purchase price. The amount of R5 000.00 was paid to the
third respondent
on 5 February 2021.
9.3
However, before the Toyota could be delivered to the second
respondent, the third respondent was
issued with the aforesaid notice
by the traffic officer and the Toyota was impounded.
9.4
On 5 May 2021 the second respondent, with the co-operation of the
third respondent, saw to the
registration of the Toyota in the name
of the second respondent. A copy of the certificate of registration
of the Toyota is appended
to the review application.
9.5
On 25 May 2021 the third respondent was granted leave to appeal
against the conviction and sentence
handed down by the first
respondent.
9.6
On 28 May 2021 second respondent, through his attorney, applied for
an order in terms of the provisions
of section 99(2)(b) of the Act
for an order that the Toyota to be returned to the registered owner,
the second respondent.
9.7
The first respondent noted as follows on the record of the criminal
proceedings: “Accused
confirmed that the motor vehicle
concerned was sold to Adriaan Botha before it was confiscated”.
9.8
The National Prosecuting Authority did not oppose application for the
vehicle to be handed to
the second respondent.
9.9
The second respondent, with the assistance of his attorney, made
several attempts to obtain possession
of the Toyota subsequent to the
first respondent granting the court order. The Chief of the
Department of Police, Roads and Transport
at the Kroonstad Traffic
Office refused to hand over the vehicle to the second respondent as
per the court order.
9.10
The second respondent has suffered damages and is being prejudiced
due to the Toyota being vandalised at
the depot.
[10]   Mr
Mazibuko, counsel on behalf of the applicant, submissions are that:
10.1
Firstly, the first respondent had no jurisdiction to make the order
and thus exceeded his powers; and
10.2
secondly, in making the order, the first respondent had committed a
material error of law amounting to a
gross irregularity.
[11]   The
applicant argued that the determination of this matter depends upon
the interpretation of section 99(2) of
the Act which provides as
follows:
“
99
Impoundment of vehicles
(1)
An authorized officer who is satisfied on reasonable grounds that a
motor vehicle
is being used by any person for the operation of public
transport without the necessary operating licence or permit or
contrary
to the conditions imposed with regard thereto, may impound
the vehicle pending the investigation and prosecution of that person

for an offence mentioned in section102(1)(a) or (b).
(2)
A vehicle impounded under subsection (1) must be delivered to the
head of the
depot contemplated in subsection (4), who must retain the
vehicle in the depot
and released it to the concerned person only
-
(a)   when the
criminal charges against the person have been withdrawn or the person
has been acquitted of the offence
charged; or
(b)   in the
case where the person is convicted of the offence charged,
and
unless the court has ordered otherwise,
on payment to the head of
the depot of the amount determined by the MEC.” (emphasis
added)
[12]   In
Cool
Ideas 1186 CC v Hubbard and Another
[2]
the Constitutional Court held as follows:
“
A fundamental
tenet of statutory interpretation is that the words in the statute
must be given their ordinary grammatical meaning,
unless to do so
would result in an absurdity. There are three important interrelated
riders to this general principle, namely:
(a)       that
statutory provisions should always be interpreted purposively;
(b)
the relevant statutory provision must be properly contextualised:
(c)
all statutes must be construed consistently with the Constitution,
that is, we are reasonably
possible, legislative provisions ought to
be interpreted to preserve the constitutional validity. This
proviso to the general
principle least closely related to the
purposive approach referred to in (a).”
[3]
[13]   On
behalf of the applicant it was argued that on a proper reading and
interpretation of section 99(2), the Toyota
may only be released to
the person from whom it was seized and against whom criminal charges
were instituted. The “concerned
person” can therefore
only be the person against whom criminal charges or prosecution had
been initiated, namely the driver
of the relevant motor vehicle.
[14]   Mr Janse
van Rensburg, counsel on behalf of the first respondent, raised the
following points:
13.1
the applicant does not have the necessary
locus standi
to
bring the application;
13.2
the National Prosecuting Authority, should have been joined in the
review application.
[15]   The
second respondent contends that the applicant in this review
application was not a party to the criminal proceedings
held before
the first respondent and is therefore at best an interested party on
the basis that the applicant is currently in possession
of the
Toyota.  In view of the applicant’s lack of
locus
standi
through its indirect interest it is contended that the
review application should be dismissed with a punitive cost order.
[16]
Regarding the non-joinder of the National Prosecuting Authority, who
has a direct interest in the outcome of this
review application, the
failure to join the National Prosecuting Authority is fatal for the
applicant’s case.
[17]   In respect of
the preliminary issues of
locus
standi
and non- joinder raised by the second respondent, I am of the view
that the applicant, as the custodian of the Toyota seized by
the
traffic officials, has an obligation to see to the release of the
impounded article to the person concerned as provided for
in the Act.
In terms of the provisions of section 9, Part 3 of the National Land
Transport Act
[4]
, the applicant
is clothed with specified functions which include the monitoring of
the implementation of the Provincial Land Transport
Policy and
investigations conducted into matters arising from such
implementation and to assist municipalities in meeting their

responsibilities and performing their functions and duties with
regard to land transport. I am therefore of the view that the
applicant does possess the necessary
locus
standi
to bring this review application.
[18]
Furthermore, even though the Director of National Prosecutions was
not cited as a party to this application, the
first respondent, as
the magistrate who convicted the accused in the criminal matter
against the third respondent and granted the
order for the release of
the Toyota, has been cited as a party to the review application and
filed a notice to abide by the court’s
decision. The notice to
abide was filed by Me C Cawood of the Office of the State Attorney,
Bloemfontein. The applicant in this
matter is represented by Mr J H
Engelbrecht of the same office. The Director of National Prosecutions
is therefore represented
through the first respondent who has abided
by the court’s decision.
[19]   The
issue in this review is primarily one of statutory interpretation.
The Act does not define the words “person
concerned”. The
provisions of section 87 of The National Land Transport Act are
similar to the provisions of section 99 of
the Act with no definition
of the concept “person concerned”. In the absence of a
definition of the concept of “person
concerned” in the
national and the relevant provincial acts, cognisance has to be taken
to the ordinary grammatical meaning
of the words “person
concerned” to whom the article seized must be returned.
[20]   The word
“concerned” is defined as an adjective meaning “involved,
troubled, anxious, showing
concern”
[5]
with or  by something.
[21]   In
Minister
van Wet en Orde & ‘n Ander v Datnis Motors (Midlands)
(Edms) Bpk
[6]
the facts were that the respondent had sold motor vehicles to N
and B respectively and while the vehicles were in their possession

they were seized by police officials under the provisions of section
20 of the CPA on the grounds that it was suspected that they
were
stolen vehicles. The Attorney General refused to prosecute, but the
vehicles were not returned to N and B. The police assumed
that the
vehicles had been forfeited to the State on the basis that nobody
could legally possess stolen vehicles.
[22]   An
application by Datnis Motors, to whom N and B had ceded all their
rights with regard to the vehicles, directed
at obtaining an order
for the return of the vehicles followed and was granted. The
appellant (the Minister) were granted leave
to appeal. The only
dispute was whether the Attorney General’s refusal to prosecute
meant that the State, because of the
provisions of section 31(1) of
the CPA, had to return the vehicles to the person who had possession
of them before their seizure.
[23]   On
appeal Van Heerden JA held that the object seized, in such instance
had to be returned to the person from whom
it had been seized unless
that person’s possession of the object would be unlawful. The
inadequacies in the wording of section
31(1) of the CPA, namely that
it was not apparent who the “concerned police official”
referred to in section 31(1)(b)
was, who had to decide who may
lawfully possess such article, or at what stage it was envisaged by
the Legislature that the forfeiture
of an object was to take place,
was considered and it was held that a reformulation of the subsection
was necessary. The application
for the return of the two vehicles to
N and B was granted due to the State’s failure to show that the
person from whom the
objects were seized could not legally possess it
and was therefore not entitled to its return.
[24]   The
uncertainty regarding the interpretation of the relevant section of
the CPA was addressed as follows by Van
Heerden JA:
Dat die wetgewer nie kon
beoog het dat ‘n gesteelde voorwerp ingevolge art 31(1)
terugbesorg moet word aan die person van
wie dit in beslag geneem is
nie, kan aan die hand van die volgende voorbeeld geïllustreer
word. A steel ‘n fiets van
B en verkoop en lewer dit aan C wat
onbewus van die diefstal is. Die polisie lê daarop beslag en
stel vas dat dit inderdaad
B se gesteelde fiets is. Hierdie inliging
word aan C oorgedra. Om een of ander rede, bv omdat A inmiddels
oorlede is of uit die
land gevlug het, word geen vervolging in
verband met die fiets ingestel nie. Indien C die fiets wel wettiglik
mag besit, moet die
polisie dit ingevolge art 31(1) aan hom teruggee,
hoewel daar geen twyfel is dat A die fiets van B gesteel het nie. Ek
kan my net
nie voorstel dat die Wetgewer kon bedoel het dat C onder
hierdie omstandighede die fiets moet terrugkry nie. Inteendeel moes
beoog
gewees het dat C nie die fiets wettiglik kan besit nie, en dat
dit daarom moet gaan na B wat dit wel dusdanig kan besit.”
[7]
[25]   Para (b)
was subsequently substituted by section 2 of Act No 5 of 1991 to read
that 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.
[26]   It is
common cause that the second respondent is the lawful owner of the
Toyota. Mr Mazibuko argued that on a proper
reading of section 99 (1)
(b) the impounded Toyota may only be released to the third respondent
being the “person concerned”.
However, Mr Mazibuko
conceded that, in the event of the third respondent having passed
away or immigrated to another country, it
would therefore not be
possible to release the vehicle to anybody, not even the executor of
his estate.
[27]   To my
mind it will be absurd to hold that the lawful owner of the Toyota
may not claim the release thereof merely
on the basis that the third
respondent, who has confirmed that he has no claim to the vehicle,
due to the sale of the Toyota to
the second respondent, is the person
who had been convicted of the offence and is thus the only person to
whom the Toyota may be
released.
[28]   In
Pakule v
Minister of Safety and Security and Another; Tafeni v Minister of
Safety and Security and another
[8]
the Supreme Court of Appeal
held that a vehicle seized by the police cannot be returned to a
person from whom such item has been
seized if any of the features
referred to in section 68(6) (b) of the National Road Traffic Act
[9]
are present. Pakule, a taxi operator in the Eastern Cape employed a
driver for his taxi. The driver was not in possession of a
driver’s
licence and the vehicle had neither number plates nor a licence disc.
These factors constitute contraventions of
the National Road Traffic
Act and accordingly all constituted criminal offences in which the
motor vehicle was involved.  From
the evidence in the Pakule
matter it was clear that the return of the motor vehicle from whom it
was seized would be an exercise
in futility, bearing in mind that at
the moment of the return thereof, the motor vehicle might be lawfully
seized again.
[10]
[29]   Courts
should prefer interpretation of legislation that fall within the
constitutional bounds over those that do
not, provided that such an
interpretation can be reasonably ascribed to the relevant
section.
[11]
The third
respondent is not the owner of the  Toyota and is evidently not
concerned with the release of the vehicle.
The relevant section does
not explicitly exclude the owner of the impounded motor vehicle to
obtain possession thereof and I therefore
can see no reason why the
owner of the vehicle seized and impounded to be excluded from the
notion of a “person concerned”.
[30]   Taking
cognisance of the principles pertaining to the interpretation of
legislation as enunciated in
Cool Ideas
, the court should
interpret legislation purposively. There would be no purpose in
releasing to Toyota to a person who does not
have a legitimate claim
to the item and to negate the claim of a person concerned with its
release and involved or affected by
the seizure thereof.
[31]   The
first respondent has ordered “otherwise” as provided for
in the rider included in subsection (2)(b)
of the Act, by granting an
order for the release of the Toyota to the second respondent. I am
unable to find that the first respondent
could not have granted such
an order under the prevailing circumstances.
[32]   Section
34 of the CPA regulates the disposal of articles, after the
commencement of criminal proceedings and provides
as follows:
“
34(2) The judge or
judicial officer presiding at criminal proceedings shall at the
conclusion of such proceedings, but subject to
the provisions of this
act or any other law, under which any matter shall all may be
forfeited, make an order that in any article
referred to in section
33-
(a)
be returned to the person from whom it was seized, if such a person
may lawfully
possess such article; or
(b)
If such a person is not entitled to the article or cannot lawfully
possess the
article, be returned to any other person entitled
thereto, if such person may lawfully possess the article;
(c)
…
(d)
the court may, for the purpose of any order under said subsection
(1), hear
such additional evidence, whether by affidavit or orally,
as it may deem fit.”
[33]
Similarly, and subsequent to the criminal proceedings in the
Magistrates’ Court, the first respondent heard
additional
evidence and made the order which forms the subject of this review.
The contention on behalf of the applicant that the
Toyota may only be
returned to the third respondent, being the only person concerned, is
untenable. I am not convinced that the
first respondent was not
empowered to make such an order. I am furthermore persuaded by all
these considerations and a proper reading
of the applicable
legislation that the Toyota should be released to the second
respondent.
[34]   In the
answering affidavit the second respondent asks for a punitive costs
order.  The conduct of the applicant
in retaining the vehicle
long after the first respondent has granted the release of the Toyota
to its rightful and lawful owner
and taking cognisance of the
numerous attempts of the second respondent and his attorney to obtain
the release of the Toyota, I
am satisfied that a cost order that will
not leave the second respondent out of pocket justifies a special
costs order.
[35]   The
review application should fail on the basis that the first respondent
did have the necessary jurisdiction to
make the order as he did and
furthermore there is no material error of law made by the first
respondent, nor any gross irregularity.
[36]
It is
therefore ordered that:
1.
The review application is dismissed.
2.
The applicant is ordered to pay the second respondent’s costs
on the scale
of attorney and client.
VAN RHYN J
I concur and it is so
ordered
CHESIWE J
On behalf of the
Applicant:                               ADV

M.S MAZIBUKO
Instructed by:
THE

STATE ATTORNEY
BLOEMFONTEIN
On behalf of the Second
Respondent:
ADV. G.S.J VAN RENSBURG
Instructed by:
JACOBS

FOURIE  ATTORNEYS
BLOEMFONTEIN
[1]
Act 51 of 1977.
[2]
2014 (4) SA 474 (CC).
[3]
Cool Ideas
supra
at [28]
[4]
Act 5 of 2009.
[5]
The New Shorter Oxford English Dictionary, Vol I, 1993.
[6]
1989 (1) SA 926 (AA).
[7]
Datnis Motors
supra
at p 934 A- D.
[8]
[2011] 4 All SA 159 (SCA).
[9]
Act 93 of 1996.
[10]
Pakule
supra
at [31] –[ 32].
[11]
Investigation Directorate: Serious Economic Offences and others v
Hyundai Motors Distributors (Pty) Ltd and others, In re: Hyundai

Motors Distributors (Pty) Ltd v Smit NO and others
[2000] ZACC 12
;
2001 (1) SA 545
CC at [23].