Mkhehle v Station Commander, Central Police Station and Others (1669/2022) [2022] ZAECMHC 52 (1 December 2022)

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[2022] ZAECMHC 52
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Mkhehle v Station Commander, Central Police Station and Others (1669/2022) [2022] ZAECMHC 52 (1 December 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION, MTHATHA]
CASE
NO:1669/2022
In
the matter between:
MASIBULELE
MKHEHLE
Applicant
And
STATION
COMMANDER, CENTRAL POLICE STATION
1
st
Respondent
SERGENT
MADIKIZELA N.
O
2
nd
Respondent
MINISTER
OF
POLICE
3
rd
Respondent
JUDGMENT
NQUMSE
AJ:
[1]
The applicant approached this court on 18 April 2022 on urgent basis
seeking the return
of his registration certificate or liquor license
(license) and his liquor that was confiscated by the police on 16
April 2022.
[2]
The order sought by the applicant is encapsulated in the Notice of
Motion in the following
terms: -
2.1
Dispensing with the forms and the services provided for in the
Uniform Rules of the above
Honourable Court and directing that this
application be heard on an urgent basis in terms of Rule 6(12) (a).
2.2
The applicant`s failure to issue the required 72 hours` notice prior
issuing of the papers
in these proceedings be and is hereby condoned.
2.3
The first and second respondent`s conduct by taking the applicant`s
liquor trading license
as it appears on annexures “B” and
“C” be and is hereby declared unlawful, unconstitutional
and or set aside.
2.4
the second respondent`s conduct of taking away the applicant`s
alcohol as per the inventory
list as it appears in annexure “D”
be and is hereby declared unlawful, unconstitutional and or be set
aside.
2.5
The first respondent be and is hereby directed to return forthwith
the applicant`s alcohol
as per the inventory list annexed hereto
marked as exhibit “D”.
2.6
The first respondent be and is hereby directed to return forthwith to
the applicant, the applicant`s
original copy of the liquor trading
license as per the number ECP 2066/090588/05.
2.7
An order that, the respondents whether they oppose the application or
not the respondents
to pay the costs of this application on a client
and own attorney scale jointly and severally, the one paying the
other to be absolved.
2.8
Further and / or alternative relief the Honourable Court may deem
fit.
[3]
Pursuant the order of 22 April 2022, granting the relief sought
above, a rule nisi was
issued calling the respondents to show cause
why the order should not be made final. Following this development
and the non-compliance
with the order by the respondents, after it
was served on the respondents, the matter took a number of turns and
twists culminating
in various interlocutory applications by one
against the other and the court orders that followed thereafter.
To
avid prolixity nor to burden this judgment unduly, I have decided not
to deal specifically with those interlocutory applications,
except
those I find it necessary to do so.
[4]
A brief background of the facts which are to a large extent common
cause is that on
16 April 2022 at about 22:00, whilst the police were
performing their duties they found the applicant selling liquor in
his house
at Qweqwe Locality in Mthatha.
[5]
They demanded from the applicant his license to sell liquor to the
public and he presented
to them his certificate of registration and a
certificate of general conditions applicable to on and of consumption
issued by the
Eastern Cape Liquor Board.
[6]
The police took pictures of the registration certificate and sent it
to Ms Mayatula,
an officer and a Senior Inspector at the Eastern Cape
Liquor Board. This was done in the presence of the applicant. Ms
Mayatula subsequently
reverted to the police officer by means of a
cell phone call in which she informed the police officer that the
applicant was not
registered with the Eastern Cape Liquor Board and
that the registration certificate they had forwarded bearing the
reference number
ECP 2066/90588/05 was a fake document which belongs
to Nceduluntu Bottle Store of Lower Didimane Village, Needs Camp at
Buffalo City
Metropolitan in East London.
[7]
Following the response of Ms Mayatula the applicant was informed by
the police that
he was being arrested for selling liquor without a
license and for presenting a fraudulent registration certificate. The
police confiscated
the applicant`s liquor and registered it in the
exhibit book SAP 13/243/2022, as well as his registration
certificate.
[8]
After successful representations which were made to the prosecution
to decline to prosecute,
the applicant caused a letter to be written
to the legal representatives of the respondents advising them of the
prosecutor`s decision
whilst at the same time demanded the release of
his license and his liquor. In response, the respondents released the
liquor but
not the license. This therefore obviates the need to
consider the release of the applicant`s liquor. The issue that has to
be determined
is whether the applicant is entitled to the relief
sought, more specifically the orders in terms of paragraphs 2.3; 2.4
and 2.6 of
the application as referred to above.
[9]
Before dealing with the issue to be determined as formulated above,
it is apposite to
first deal with the point
in limine
which is
bought by the respondents for the failure of the applicant to comply
with the
State Liability Act 20 of 1957
. The respondents contend that
the application was not served to the Minister of Police as required
by
section 2(1)
of the aforesaid Act. Nor was the application served
on the Head of the Department. The respondents submitted that the
application
ought to be dismissed on this ground alone.
[10]
A starting point on the issue of the service of the application is at
the commencement of the litigation.
After the granting of the
certificate of urgency with the directives therein, the applicant
sought to have it served on all the respondents.
On the Returns of
Service appearing on pages 36, 37, and 39 of the main bundle of
documents filed of record, shows that they were
served on 19 April
2022 on the first and second respondent`s place of business (the
Police Station Mthatha). The return of service
which is the subject
of the complaint for non-compliance with the Act, was served on the
same date as above on the Minister of Police
through the Office of
the State Attorney in Mthatha.
[11]
In their reaction to the service, all the respondents filed their
notice to oppose through the
office of the State Attorney. Following
their opposition, they all participated in the further litigation of
the matter through the
same office. This is evidenced in various
interlocutory applications which were launched by the respondents
against the applicant.
Most notably is their application filed on 11
May 2022 for reconsideration and the setting aside of the order of 22
April 2022. This
was followed by another application launched on 17
June 2022 for the variation of the order which was granted on 21 June
2022.
[12]
Section 2
of the Act provides: -
“
(1) In any action
or other proceedings instituted against the department, the executive
Authority of the Department concerned must
be cited as nominal
defendant or respondent.
(2) The plaintiff or
Applicant, as the case may be, or his or her legal representative
must after
(a) any court
instituting proceedings and in which the executive authority of the
department is cited as nominal defendant or respondent
has been
issued, serve a copy of that process on the head of department
concerned at the head office of the department.
(b)….”
[13]
A helpful starting point in the interpretation of a statutory
provision is section 39 (2) of the
Constitution
[1]
which enjoins court, when interpreting any legislation, to promote
the spirit, purport and objects of the Bill of Rights. The strict
mechanical approach in the legislative provisions was jettisoned in
Maharaj
and others v Rampasad
[2]
where the test was laid as thus:
“
The enquiry I
suggest, is not so much whether, there has been”‘exact’‘
“adequate”‘or “substantial” compliance
with
this injunction but rather whether there has been compliance
therewith. This enquiry postulates an application of the injunction
to the facts and a resultant comparison between what the position is
and what, according to the requirements of the injunction, it
ought
to be. It is quite conceivable that a court might hold that, even
though the position as it is, is not identical with what
it ought to
be, the injunction has nevertheless been complied with. In deciding
whether there has been a compliance with the injunction
the object
sought to be achieved by the injunction and the question whether this
object has been achieved are of importance”
In
Minister
of Police and Others v Samuel Molokwane
[3]
the court commented as follows:
“
Para [16] This
approach received the imprimatur of the Constitutional Court in
African Democratic Party v Electoral Commission and
Other
[2006] ZACC
1
;
2006 (3) SA 305
(CC);
2006 (5) BCLR 579
(CC) para 25. There, it
was held that the adoption of the purposive approach in our law has
rendered obsolete all the previous attempts
to determine whether a
statutory provision is directory or peremptory on the basis of the
wording and subject of the text of the
provision. The question was
thus “whether what the applicant did constituted compliance
with the statutory provisions viewed in
the light of their purpose”.
A narrowly textual and legalistic approach is to be avoided”.
[14]
It is not in dispute that the application was not served on the head
of the department. Whilst
that may be so, it is equally undisputed
that all the respondents became aware of the application launched
against them. The mere
failure to serve the application on the head
of department is in my view not fatal as to warrant the dismissal of
the application.
Taking into considerations the principles laid down
in the authorities referred to above, I am satisfied that the service
of the
application was adequate and effective. Therefore, the point
in limine
is dismissed.
[15]
That being out of the way I now turn to deal with the merits of the
application. Paragraph 3 of
the order of 22 April 2022 which
corresponds with paragraphs 2.3 above reads:
“
The first and
second respondent`s conduct of taking the applicant`s liquor trading
license as it appears on annexure “B” and “C”
be and is hereby declared unlawful, unconstitutional and or be set
aside”.
Paragraph
4 which corresponds with paragraph 2.4 above reads:
“
The second
respondent`s conduct of taking away the applicant`s alcohol as per
the inventory list as it appears in annexure “D”
be and
is hereby declared unlawful, unconstitutional and or be set aside”;
and paragraph 6 which corresponds with paragraph 2.6
above reads:
“
The first
respondent be and is hereby directed to return forthwith to the
applicant, the applicant`s original copy of the liquor trading
license as per the reference number ECP 2066/090588/05”.
[16]
Of significance, is the information that was disclosed in the
answering affidavit to which the
applicant did not find it necessary
to react, despite its importance and centrality to the matter. That
information relates to the
averments made by the deponent, Khaya
Madikizela in paragraphs 7 and 8 of the answering affidavit. For sake
of completeness I will
quote the two paragraphs in their entirety.
[17]
Paragraph 7 reads:
“
I
immediately take pictures of these documents and send them to Ms
Mayatula of Eastern Cape Liquor Board (sic). Ms Mayatula of the
Eastern Cape Liquor Board revert to me by a call informing me that
the registration certificate in which I was in possession of was
a
fake document in that the reference number ECP 2066/90588/05 belongs
to Nceduluntu Bottle Store situated at Lower Didimane Village,
Needs
Camp, Bufalo City Metropolitan in East London” (sic)
[18]
Paragraph 8 reads:
“
I also gave the
applicant my cell phone to talk to Ms Mayatula and my cell phone was
on loud speaker and everybody could hear and
Ms Mayatula informed him
that his license has no origin at Eastern Cape Liquor Board”.
(sic).
[19]
Undoubtedly, the allegations in the two paragraphs quoted above are
quite serious and should have
invited a reply from the applicant.
However, for a strange reason, this the applicant did not do.
Furthermore, Ms Mayatula in her
confirmatory affidavit supports the
allegations made by the police official in the aforementioned
paragraphs.
[20]
In its reply to paragraph 7 the applicant steered clear from making
reference by either confirming
or denying the allegations contained
therein. Instead his reply focused on the different liquor license
numbers which are not reconcilable
as they belong to different
entities. In paragraph 43 of the replying affidavit under the
subheading Ad Paragraph 7 the following
is stated:
“
With a due amount
of respect, it is still escaping my logic how license number appears
on “KM3”, reconcilable with annexure “B”
which is my trading liquor license”. In paragraph 44 he stated
“That brings me the conclusion if the second respondent saw the
annexure “KM3” and my liquor trading license which has a
total different trading license number, why was my alcohol taken by
the second respondent on the 16
th
April 2022 and the
second respondent was aware of this information right on the 16
th
April 2022, clearly took my license and my alcohol when facts never
justified so”. (sic)
In paragraph 45 he
stated “with respect this case ends here and the respondent
must pay costs on an attorney and client scale”.
[21]
It is worth noting that the applicant has clearly avoided to deal
with the allegation that pictures
of his trading license were taken
and sent to Ms Mayatula. He is mum about the averment that Ms
Mayatula informed the police official
that the license that was sent
to her was a fake document. Of serious concern is the silence of the
applicant on the allegations
at paragraph 8 of the answering
affidavit. In fact, no attempt is made to reply on the allegations in
paragraph 8 of the answering
affidavit. From Ad Paragraph 7 of the
replying affidavit, the next paragraph on the reply is Ad Paragraph 9
which simply means the
applicant has avoided deliberately to reply to
the allegations that Ms Mayatula spoke on the cell phone which was on
loudspeaker
in the hearing of the applicant and confirmed that the
license of the applicant was a fake document which was cancelled by
the Liquor
Board. Nowhere in the replying affidavit does the
applicant refute the allegations made in paragraph 8 of the answering
affidavit
more particularly, that the police officer had given the
applicant the cell phone in order for Ms Mayatula to speak to the
applicant
who was insisting that the applicant`s license had no
origin at the Eastern Cape Liquor Board.
[22]
Mr Genu for the applicant was invited to offer an explanation, if
any, for the apparent lack of
a reply to the respondent`s
allegations. He was hard pressed to offer any, except to cast doubt
whether the police forwarded the
correct picture of the license to Ms
Mayatula. Whatever the reason may be which has not been made clear to
the court why the applicant
chose not to reply to the respondent`s
allegations, does not redound to the applicant`s credit and can
hardly assist in his quest
for the relief sought. It follows
therefore that the applicant`s failure activates the well-known
Plascon
– Evans
rule test, in terms of which the version of the respondent which has
not been denied has to be accepted
[4]
.
[23]
If regard is had to what transpired between the police, the applicant
and Ms Mayatula, it is not
difficult to understand why the police
confiscated the liquor and removed the applicant`s license from him.
However, the question
that remains is whether the police were acting
lawfully and within the law when they did so.
[24]
In their heads of argument, the respondent referred me to section 20
of the Criminal Procedure
Act 51 of 1977 (the CPA) to justify their
conduct for confiscating both the liquor and the license of the
applicant. Section 20 of
the CPA provides:
“
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”.
In
amplification the respondents rely on
Ndabeni
v Minister of Law and Order and Another
[5]
where the court held:
“
Whether
the suspicion or belief was reasonable is an objective question and
will be answered objectively on all the facts before the
court”.
It
was therefore contended by the respondent that the criminal court
will be the appropriate forum to pronounce on the disposal of
the
exhibits after consideration of the facts and the evidence in the
matter. It was further argued by the respondent that if the
exhibits
more particularly, the licence were to be released to the applicant,
the evidence needed for a charge of fraud will be destroyed.
As was
stated earlier, following representations made to the prosecution on
behalf of the applicant, the prosecution declined to
prosecute the
charges levelled against the applicant under CAS 297/04/2022 which
included the fraud allegations. It is on this basis
that the liquor
was released to the applicant. It should also follow that there is no
longer a fraud case pending against the applicant.
[25]
That being the case, the submissions that the exhibits including the
license should await a pronouncement
by the criminal court can no
longer apply, it has been overtaken by events. During argument Mr
Genu submitted that one of the things
the applicant has to prove is
that he was in possession of a valid trading license. The license
referred to by the applicant is referred
to in the bundle of
documents as “KM1” which bears the reference no: ECP
2066/90588/05. This is the same license which was sent
to Ms Mayatula
and was disowned by the liquor board.
[26]
Mr Notshe for the respondents argued correctly in my view, that as
soon as the license was disputed
by Ms Mayatula, the applicant ought
to have contacted the liquor board to protest its denial of the
existence of his license. Better
still, the applicant was expected to
demand from the liquor board a copy of his file and his license that
is supposed to be in their
custody. Mr Notshe invited the court to
draw an adverse inference in the non-activity of the applicant. No
reasonable steps have
been taken by the applicant to verify the
pronouncements of Ms Mayatula. nor did he challenge her claim in any
manner. No reasons
were advanced why this could not be done by the
applicant. Instead the applicant chose to launch an urgent
application for the return
of his license which has a questionable
status.
The applicant chose this
route notwithstanding the trite legal position which was expressed in
Tshwaedi
v Greater Louis Trichardt Transitional Council
[6]
as follows:
“…
An
applicant who comes to court on an urgent basis for final relief
bears an even greater burden to establish his right to urgent
relief
than an applicant who comes to court for interim relief…”
[27]
In
casu
the applicant has sought to rely on the decision of
the prosecutor to decline to prosecute as the basis to insist that it
bears a
valid license. I do not agree for the following reason. No
evidence was presented to show any steps taken by the prosecution to
verify
or authenticate the applicant`s license with the liquor board.
All that appears to have happened is for the applicant to direct a
letter through his attorneys to the prosecution in which they related
the circumstances under which the applicant`s liquor and license
were
taken by the police and the arrest of the applicant, for which they
requested the prosecution to decline to prosecute. Attached
to their
correspondence was a number of documents including the disputed
license of the applicant and that of Nceduluntu Bottle Store.
[28]
The subsequent correspondence is that which is dated 19 May 2022
directed to the Office of the
State Attorney in which they are
informed by the applicant that pursuant their representations made to
the prosecutor on 05 May 2022,
the prosecutor has declined to
prosecute and were therefore demanding the release of the applicant`s
alcohol. There is no allegation
made that the prosecutor investigated
the veracity of the applicant`s submissions with the liquor board and
as a result thereof was
satisfied that the license is valid contrary
to the undisputed claim of Ms Mayatula. As there may be many reasons
including that
of the status of the license that caused the
prosecutor to decline to prosecute, the court without any reasons
advanced therefore,
is left but guessing as to the actual reason for
the prosecutor to decline to prosecute. What we are left with is
still the question
on the validity of the applicant`s license.
[29]
As alluded above, the applicant has set itself the onus to prove that
it has a valid license. I
am not convinced that it has succeeded in
discharging that onus.. There is no effort whatsoever that
establishes the applicant`s
attempt to show the authenticity of his
license. Not even the basic attempt to obtain a copy of his license
from the liquor board
as proof that he has a recognised license in
the offices of the liquor board. I find therefore that the applicant
has failed to prove
that it is entitled to the order sought.
Therefore, the application ought to fail.
[30]
I now turn to deal with the question of costs. It is trite that the
issue of costs is within the
discretion of the court
[7]
.
It is an accepted legal principle that costs ordinarily follow the
result and a successful party is therefore entitled to his or
her
costs. The general rule is that costs follow the event which is a
starting point
[8]
. I am of the
view that the respondents are entitled to their costs. Mr Notshe had
submitted that the award for costs must include
the employment of two
counsel. This is absent any motivation that the matter was so complex
as to warrant the employment of two counsel
one of which is a senior
counsel. In exercising my discretion and having regard to the issues
that were argued before me, I am not
persuaded that the employment of
two counsel was necessary.
[31]
In the result, the following order will issue: -
1.
The interim relief is not confirmed.
2.
The application is dismissed with costs, such costs to include the
costs of senior
counsel.
M.V
NQUMSE
JUDGE
OF THE HIGH COURT (ACTING)
Appearances
Counsel
for the applicant
:
Adv Genu
Instructed
by
: AYANDA ZOZI ATTORNEYS.
NO. 70 CUMBERLAND STREET
MTHATHA
Counsel
for the respondents
:
Adv Notshe SC
Instructed
by
:   STATE ATTORNEY
MTHATHA
DATE
HEARD
: 06 OCTOBER 2022
DATE
DELIVERED
: 01 DECEMBER 2022
[1]
Act
108 of 1996.
[2]
1964
(4) SA 638
(A) at 646 C-D
[3]
Minister
of Police and Others v Samuel Molokwane (730/2021)
[2022] ZASCA 111
(15 July 2022).
[4]
Plascon
– Evans Paints v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA
623.
[5]
Ndabeni
v Minister of Law and Order and Another 1984(3) SA 500 (D).
[6]
[2002]
4 BLLR 469
(LC) paragraph 11.
[7]
Intercontinental
Exports (Pty) Ltd v Fowles
1999 (2) SA 1045
(SCA); Swaartbooi v
Brink 2006 (1) 203 (CC) paragraph 27.
[8]
Thusi
v Minister of Home Affairs and 71 Other Cases
(2011) (2) SA 561
(KZP) 605-611.