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[2022] ZAECBHC 17
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Tshatshu v Minister of Safety and Security and Another (433/2018) [2022] ZAECBHC 17 (13 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION BHISHO]
CASE
NO.433/2018
In
the matter between:
LITHA
ODWA TSHATSHU
Plaintiff
And
MINISTER
OF SAFETY AND SECURITY
First Defendant
WARRANT
OFFICER JONAS
Second Defendant
JUDGMENT
TOKOTA
J
[1]
The plaintiff instituted an action against the defendants seeking an
order for payment
in the amount of R145 000.00 being damages
arising out of the alleged unlawful seizure of his vehicle by the
police. In the
pleadings, it is alleged that whilst his vehicle was
in police custody it was broken into and parts thereof were stolen.
The vehicle
was allegedly damaged beyond repairs (Claim 1). In claim
2 the plaintiff sought payment of R1, 800 000.00as damages for loss
of
income. Claim 1 was settled in the amount of R80 000.00 and
the settlement agreement was made an order of court on 19 November
2019. The issue relating to claim 2 was postponed
sine die.
It
is the latter claim that I am called upon to determine. The
defendants deny that they are liable to pay any damages to the
plaintiff as claimed or at all.
[2]
The plaintiff was the only witness at the trial. His evidence can be
summarised as
follows: He is a taxi businessman. He is the owner of
an Avanza taxi which was operating at the taxi rank. On 23 September
2017,
he was in Johannesburg when he received a call from his driver
who informed him that he had been high jacked by unknown people.
That
was a lie because on that day his vehicle was used by his driver and
two others to convey the stolen carcass of a cow. The
police arrested
him and seized the vehicle in terms of section 20 of the Criminal
Procedure Act 51 of 1977 (the CPA).
[3]
At the commencement of the trial, the plaintiff conceded that the
seizure of the vehicle
on 23 September 2017 was lawful. He contended
however that the defendants were not entitled to keep the vehicle
after the driver
was convicted and that retention thereof was
unlawful. The defendant contended that the vehicle was seized in
terms of section
20 of the CPA and consequently it was the
responsibility of the prosecuting authority and not of the police to
dispose of the vehicle
after the driver was convicted of stock theft.
[4]
It is not in dispute that there were three occupants of the vehicle
when it was seized.
They were all charged with stock theft. Two of
them pleaded not guilty and the driver of the plaintiff pleaded
guilty and was convicted
of stock theft. The trial was separated and
it is not in dispute that the case of stock theft against the
remaining accused is
still pending before the magistrate’s
court.
[5]
The plaintiff testified that he was told by one Jonas that his
vehicle was broken
into and its parts, including the engine, seats,
and dashboard, were stolen. He testified that he was claiming damages
for loss
of income because his vehicle has been damaged beyond
economic repairs. Although in the particulars of claim the plaintiff
pleaded
that he found his vehicle scrapped and damaged beyond repairs
he testified that he never saw his vehicle but was only told by Jonas
that it had been damaged. Jonas was never called as a witness.
[6]
As alluded to above the vehicle was used to convey the stolen carcass
of a cow. Under
cross-examination, the plaintiff conceded that the
seats that were removed were removed in order to make space for the
carcass
of the stolen cow. He could not deny that the criminal case
was still pending against the two accused who were charged with his
driver.
[7]
The plaintiff closed his case without calling any witnesses.
Mr
Malunga
who appeared for the defendants applied for absolution
from the instance. Ms
Bacela
for the plaintiff opposed the
application.
[8]
An application for absolution may be considered at the end of the
plaintiff’s
case if the plaintiff fails to prove one of the
elements necessary for the cause of action.
[9]
The plaintiff’s claim falls under the delictual claim for pure
economic loss.
Pure economic loss relates to financial loss that does
not arise directly from damage to the plaintiff's person or property
but
comes about as a result of the negligent act itself, such as a
loss of profit, being put to extra expenses, or the diminution in
the
value of property.
[1]
That
being the case the plaintiff must allege and prove all the elements
of a delict. In the event, that one element is lacking
the action
cannot succeed.
[10]
In order to avert absolution at the end of its case, a plaintiff has
to make out a
prima facie
case for its claim. Although the
standard of proof is slightly less than that at the end of the entire
case, which requires proof
on a balance of probabilities, a plaintiff
must at least show that it has a prospects of succeeding with its
claim at the end of
the entire case.
[11]
The question a court needs to ask at the end of
the plaintiff's case, therefore, is whether there is such
evidence
before court upon which a reasonable court might (not should or ought
to) or could give judgment for the plaintiff.
[2]
[12]
The plaintiff must therefore at the end of its
case make out a
prima facie
case in the sense that there is
evidence relating to all the elements of the claim since without such
evidence no court could find
for the plaintiff. The material facts
upon which a plaintiff relies in support of its claim must be set out
in its particulars
of claim in a clear and concise statement' and his
evidence must then elaborate to establish his claim.
[13]
The Constitutional Court in
Country Cloud Trading CC v MEC,
Department of Infrastructure Development
2015 (1) SA 1
(CC)
(2014 (12) BCLR 1397
;
[2014] ZACC 28)
para 23: said:
'So our law is generally reluctant
to recognise pure economic loss claims, especially where it would
constitute an extension of
the law of delict. Wrongfulness must be
positively established. It has thus far been established in limited
categories of cases,
like intentional interferences in contractual
relations or negligent misstatements, where the plaintiff can show a
right or legally
recognised interest that the defendant infringed.'
[Footnotes omitted.]
The
plaintiff’s claim being based on delict all the elements of a
delict must be proved for a successful claim. Delict is
an act (or
omission) of a person that in a wrongful and culpable manner causes
harm to another.
[3]
'
[14]
It is common cause that the vehicle was seized in terms of section 20
of the CPA. It is also
common cause that criminal proceedings
commenced after the seizure of the vehicle. It is also common cause
that the vehicle was
used in the commission of the offence for which
the plaintiff’s driver was convicted. Section 35(1) of the CPA
provides:
“
A court which convicts an
accused of any offence may, without notice to any person, declare-
(a) any weapon,
instrument or other article by means whereof the offence in question
was committed or which was used
in the commission of such offence; or
(b) if the conviction
is in respect of an offence referred to in Part 1 of Schedule 2, any
vehicle, container or other
article which was used for the purpose of
or in connection with the commission of the offence in question or
for the conveyance
or removal of the stolen property, and which was
seized under the provisions of this Act, forfeited to the State:
Provided that
such forfeiture shall not affect any right referred to
in subparagraph (i) or (ii) of subsection (4) (a) if it is proved
that the
person who claims such right did not know that such weapon,
instrument, vehicle, container or other article was being used or
would
be used for the purpose of or in connection with the commission
of the offence in question or, as the case may be, for the conveyance
or removal of the stolen property in question, or that he could not
prevent such use, and that he may lawfully possess such weapon,
instrument, vehicle, container or other article, as the case may be.”
[15]
The concession by the plaintiff that the vehicle was lawfully seized
by the police was therefore
correctly made. For as long as the
criminal proceedings are still in progress this court has no
jurisdiction to make an order relating
to that vehicle. In order for
the plaintiff to succeed in his claim for pure economic loss, he
would have to prove all the elements
of delict. If the vehicle was
lawfully seized and is an exhibit in criminal court being an
instrument by which the offence was
committed this court cannot make
the order of compensation for loss of earnings prior to the
conclusion of those proceedings.
[16]
Moreover, the plaintiff made no effort in his evidence to show that
the retention of the vehicle
pending the conclusion of the criminal
case was wrongful. As a matter of law, the retention of the vehicle
is lawful. Any claim
in relation thereto can only arise once the
trial court has made an order in terms of the CPA. The order may be
forfeiture to the
state or an order releasing it to the lawful owner.
Once an order to release the vehicle to the lawful owner is made and
the police
fail to release it for any reason including damage beyond
repairs, the owner may then claim damages based on pure economic
loss.
This has not happened. Consequently, the first element of
delict is lacking and therefore there is no prospect that this court
might give judgment in favour of the plaintiff on the evidence
tendered by the plaintiff. Accordingly, the application for
absolution
will have to succeed.
[17]
The general rule is that costs should follow the event unless the
court finds exceptional circumstances
justifying a departure from the
rule. I find no exception in the matter.
[18]
In the result the following order will issue:
1
. The application for absolution
from the instance is granted with costs.
B
R TOKOTA
JUDGE
OF THE HIGH COURT
Appearances:
For
the plaintiff:
Ms Bacela
Instructed
by Bacela Bukula & Associates
For
the Defendants:
S Y Malunga
Instructed
by State Attorney
Date
of Hearing:
9 June 2022
Date
delivered:
13 June 2022.
[1]
J
Neethling, J M Potgieter and P J Visser Law of Delict 4 ed at 295 et
seq; Stair Memorial Encyclopaedia The Laws of Scotland
(1996) vol 15
para 273.;Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v
ASASA
2006 (1) SA 461
(SCA) ([2006]
1 All SA 6
;
[2005] ZASCA
73)
para.1
[2]
Claude
Neon Lights (SA) Ltd v Daniel
1976 (4) SA 403
(A) at 409G –
H
[3]
See
Neethling, Potgieter&Visser Law of Delict 5 ed (LexisNexis 2006)
at 3 (Law of Delict.)