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[2021] ZAGPPHC 470
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Wyn Sun 666 (Pty) Ltd and Another v Minister of Police and Others (33441/21) [2021] ZAGPPHC 470 (20 July 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO:
33441/21
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
NOT
REVISED
Date:
20 July 2021
In
the matter between:
WYN
SUN 666 (PTY) LTD
FIRST APPLICANT
IBUBESI
TRADING (PTY) LTD
SECOND APPLICANT
and
THE
MINISTER OF POLICE
FIRST RESPONDENT
WARRANT
OFFICER SIMON
FREDERIK
ERASMUS
SECOND RESPONDENT
WARRANT
OFFICER WAYNE
BRITTION
THIRD RESPONDENT
DIRECTORATE
FOR PRIORITY
CRIME
INVESTIGATION
PRETORIA
FOURTH RESPONDENT
NATIONAL
DIRECTOR OF
PUBLIC
PROSECUTIONS
FIFTH RESPONDENT
JUDGMENT
Van
der Schyff J
Introduction
[1]
This is an application based on the
mandament van spolie
.
The parties are
ad idem
that the application turns on the question as to whether the
applicants were unlawfully deprived of possession of the goods, to
which I shall refer later in this judgment, in that the respondents
unlawfully seized and removed the said goods. In light of the
factual
dispute regarding the dates on which the respective articles were
seized by the respondents (SAPS), it is necessary to
deal with the
parties' respective versions separately.
The
applicants' version
[2]
Both applicants are in the business of
purchasing, processing, and selling various grades of scrap metal.
Both are authorised and
registered to conduct such business in terms
of the Second Hand Goods Act, 6 of 2009. The applicants are also
involved in the transportation
and hiring of plant and yellow
equipment as well as bin and container hiring across the country.
These businesses are conducted
from the same premises. A third
company, Brass Investments (Pty) Ltd, also conducts a separate
business from the same premises.
[3]
The applicants aver that the matter is
inherently urgent. The applicants utilise the articles that were
seized daily to run their
respective businesses. Without these
articles, the applicants cannot generate their monthly income and
will be left destitute and
unable to pay their staff and creditors.
They submit that the Criminal Procedure Act, 51 of 1977 (the 'CPA')
provides that the
applicants may obtain and then retain the seized
articles and make them available to the court if and when required.
[4]
It the applicants’s case that the
SAPS raided their business premises on 12 May 2021. They unlawfully
and without any warrant
seized and removed the following goods on 12
May 2021:
i.
2019 Ford Transit Custom vehicle with registration
no. HZ 34 FH GP;
ii.
2019 Mercedes-Benz Actros vehicle with
registration no. JB 95 JF GP
iii.
Slidelifter with registration no. DX 36 JW GP;
iv.
2021 UD Quon vehicle with registration no. JV 99
ML GP;
v.
12m Flatdeck trailer, registration no. DC 74 DG
GP;
vi.
2021 UD Quon vehicle with registration no. JV 99
MM GP
vii.
A skeletal trailer;
viii.
3-ton Manhand forklift;
ix.
4 x 6m containers;
x.
Driver logbooks and delivery notes from each of
the trucks described above;
xi.
2 x 2019 Apple iMac 21inc computer;
xii.
2020 Apple 1Mac 27inc computer;
[5]
The deponent to the founding affidavit, her
daughter, and three truck drivers employed by the applicants were
arrested. They were
charged and appeared in the Magistrate's Court on
14 May 2021. Some of them were released on bail on 17 and 24 May
2021. On 18
May 2021, the respondents allegedly removed 'other
articles', listed in the founding affidavit as files, documents, and
surveillance
equipment. The respondents allege that the goods were
removed pursuant to a search and seizure warrant, dated 17 May 2021.
The
applicants however, say that the warrant was 'belatedly' obtained
and that the respondents continued to remove articles beyond the
warrant's scope. The applicants claim that documentation was removed
that was not referred to in the annexure to the warrant. On
18 May
2021, the warrant was presented, but the respondents failed to
provide the affidavit made in support thereof. CCT video
footage was
downloaded on 18, 19, and 20 May 2021.
[6]
The search and seizure warrant was attached
to the founding affidavit. In terms of Annexure B of the warrant, the
respondents were
authorised to seize train wheels and wagons wheels;
all documentation, including invoices, pertaining to the sales and
collection
of train wheels and wagon wheels; downloading of
surveillance footage on sites as well as C-Track Video and audio
recordings; all
truck logbooks and any documentation relating to
transactions between Go-Dove and the companies I have referred to
above.
[7]
The applicants aver that they have been
unlawfully spoliated of their possession of the said goods and are
entitled to their immediate
return. The articles, they add, are not
suspected of having been stolen, and there is no justification
for respondents to
retain and control these articles pending any
criminal investigation. During argument counsel for the applicants
indicated that
the applicants no longer require the return of the
containers containing the allegedly stolen goods.
The
respondents' version
[8]
The respondents dispute the urgency of the
application. They aver that the applicants are not with clean hands
before the court.
The application was instituted eight weeks after
the articles were seized. The application should have been instituted
at the first
opportunity when it became clear that the respondents
did not intent returning the seized goods.
[9]
The respondents sketch a different picture
of the events that led to the seizure of the articles. They aver that
an inquiry against
the applicants commenced on 2 May 2021 after
information of possible fraudulent and corrupt activities was
received. They received
a complaint from a Transnet Protection
Officer, who stated under oath that she was offered a bribe on
several occasions and later
threatened for not co-operating. As a
result of the information, the respondents obtained authorisation in
terms of s 252A of the
CPA to conduct a trap and raid. They set a
trap for the suspects. The applicants' employee was arrested while
attempting to bribe
the Transnet officer. The applicants loaded three
trucks with train wheels and wagon wheels, despite having a contract
permitting
them to only one truckload. They used fake documents to
allow the other trucks to pass and stole wagon and train wheels. No
'G16
clearance document of way bridge document' existed for the
trucks. The respondents aver that this is a case of theft, fraud, and
corruption. The articles seized were used in the commission of the
crime.
[10]
The respondents, however, aver that only
the applicants' computers were seized on 12 May 2021. Despite
not having obtained
a warrant, they allege, the seizure was lawful as
the computers were reasonably suspected of having been used to commit
fraud and
corruption in respect of which the charges are brought
against the accused. Reasonable suspicion existed that the applicants
were
running their business in a corrupt manner and that the
computers were used to run the corrupt activities. The respondents
were
concerned that incriminating evidence might be removed from the
computers if they did not seize it immediately, although they did
not
obtain a warrant. A possibility existed that the suspects would have
been alerted had they sought a warrant before executing
the s 252A
operation. The respondents had a reasonable concern and believed that
the computers would have been erased to remove
the electronic trail
of corruption and fraud if it was left at the premises after the
operation. The computers were instrumental
in forging documentation,
and it is suspected that it contains information that can reveal the
true extent of the applicant's corruption
and fraudulent activities.
The computers were booked into the SAP 13, and nothing else was
seized on the day.
[11]
The respondents then obtained a warrant and
seized the remaining goods on 18 May 2021. The seizure of the
articles on 18 May 2021
was pursuant to a lawful warrant. The trucks,
trailers, and forklifts were used in the theft of the train and wagon
wheels. The
respondents also dispute that the affidavit was not shown
to the respondents when the warrant was presented on 18 May 2021.
They
submit that if the applicants have an issue with the warrant,
the legal remedy of a review thereof should have been followed.
Counsel
reiterated during argument that the seizure of goods on 18
May 2021 was lawful and permitted in terms of Annexure B of the
warrant.
The respondents deny the allegation that the warrant was
belatedly obtained after the articles had been seized.
[12]
The respondents further state that it is
practically impossible to hand the respective properties back to the
applicants at this
stage without compromising sensitive and
incriminating information having been uncovered as the investigation
is continuing.
They submit that it will not be in the interest
of justice to grant the applicants the relief they seek as it will
frustrate the
investigation. The respondents indicated that the
applicants would receive the property, excluding the stolen items,
once the investigation
is concluded.
Discussion
[13]
In considering whether the applicants made
out a case that the application is heard as an urgent application,
the court takes into
consideration the fact that the applicants'
attorney attempted to negotiate the return of the articles before
resorting to litigation.
This approach cannot be faulted. In light of
the devastating effect that Covid 19 has on the country's economy, I
am of the view
that the applicants, who are, resulting from the
seizure, prevented from conducting business and earning a livelihood,
and moreover
are responsible to pay creditors and employees, made out
a case that the application should be heard on an urgent basis.
Having
said that, the applicants approached the court on the basis of
extreme urgency and left the respondents with very little time to
respond. This necessitated the application to be rolled over to be
heard on the 15
th
of July 2021 instead of on 13 July 2021, to allow the applicants to
file a replying affidavit.
[14]
A
factual dispute exists as to the date on which the items listed under
paragraph 4(i)-(x) were seized by the respondents. The applicant
avers that the items were seized on 12 May 2021 without the
respondents having a warrant. The respondents submit the seizure of
the articles occurred on 18 May 2021 after a warrant was obtained. It
is trite that a party should refrain from seeking final relief
in the
motion court when a material factual dispute exists. However, in
Da
Mata v Otto NO
[1]
the
Supreme Court of Appeal explained that a court must examine the
alleged dispute and ascertain whether it is a genuine dispute
or
fictitious. In
Plascon-Evans
Paints v Van Riebeeck Paints (Pty) Ltd,
[2]
the Supreme Court of Appeal again reiterated that in certain
instances, the denial by a respondent of a particular fact alleged
by
the applicant might not be such as to raise a 'real, genuine of
bona
fide
dispute
of fact'. The court continued:
'If
in such a case the respondent has not availed himself of his right to
apply for the deponents concerned to be called for cross-examination
under Rule 6(5)(g) of the Uniform Rules of Court and the Court is
satisfied as to the inherent credibility of the applicant's factual
averment, it may proceed on the basis of the correctness thereof and
include this fact among those upon which it determines whether
the
applicant is entitled to the final relief which he seeks.'
[15]
In
Room
Hire Co (Pty) Ltd v Jeppe street Mansions (Pty) Ltd,
[3]
the court explained that a bare denial of an applicant's material
averments cannot be regarded as sufficient to defeat an applicant's
right to secure relief by motion proceedings in appropriate cases. In
Soffiantini
v Mould,
[4]
the court held that a court must follow a 'robust, common-sense
approach' when considering a dispute on motion.
[16]
From the supporting documentation filed on
CaseLine, it is evident that the computers were indeed seized on 12
May 2021. This is
evident from an extract of the SAP 13 logbook,
filed by the respondents. There is, however, no supporting SAPS 13
logbook entry
regarding the goods listed under paragraph 4(i)-(x)
above. The respondents were aware of the factual dispute as to
whether the
articles listed in paragraph 4(i)-(x) above, were seized
on 12 May 2021 or 18 May 2021. They were in the position to lay the
dispute
to rest by merely annexing a copy of the SAP 13 logbook
reflecting the date on which the goods were received in custody at
the
SAP premises. They failed to do so and merely rely on a bare
denial. A court is obliged to adjudicate an application on the papers
before it. I accordingly hold that no
bona
fide
dispute of fact has arisen
regarding the date on which the said goods were seized, and I accept
that the goods were seized on 12
May 2021 without a valid warrant, as
alleged by the applicants.
[17]
Section 20 of the CPA empowers the state to
seize anything which is concerned in, or is on reasonable grounds
believed to be concerned
with the commission or suspected commission
of an offence, which may afford evidence of the commission or
suspected commission
of an offence, or which is intended to be used
or is on reasonable grounds believed to be intended to be used in the
commissioning
of an offence. However, this power is subject to the
proviso
that the seizure must be done in accordance with the provisions of
chapter 2 of the CPA. Section 21 of the CPA limits the
seemingly broad power of the state by providing that an article
referred to in s 20, shall be seized only by virtue of a search
warrant, subject to ss 22, 24, and 25 of the CPA. Section 22 of the
CPA is the first of the exclusionary provisions. Section 22
empowers
a police official to seize an item if the person concerned consents
to the search for and seizure of the item, if the
person who may
consent to the search of the premises and container consents to the
search and seizure, or if the police official
on reasonable grounds
believes that a search warrant will be issued to him under s 21(1)(a)
if he applies for such warrant, and
that the delay in obtaining such
warrant would defeat the object of the search. It is evident from the
facts leading up to the
seizure of the articles that reasonable
grounds existed for the police officials to believe that a warrant
would be issued. However,
with the exception of the computers, the
respondents did not make out a case in the affidavit that the delay
that would follow
if they first had to obtain a warrant would thwart
their investigation. The respondents also do not explain why they did
not obtain
the necessary warrants before the s 252A operation was
conducted, in light of the fact that their investigations already
commenced
almost 10 days prior.
[18]
Even if the respondent is given the benefit
of the doubt, and it is accepted that a valid warrant was obtained to
seize the items
listed under paragraph 4(i)-(x), the respondents
still face a dilemma. With the exception of item (x) none of the
items are identified
in Annexure B of the warrant as articles that
could be seized in terms of the warrant. The respondents' submission
that the seizure
of goods listed in paragraph 4(i)-(ix) was permitted
in terms of Annexure B of the warrant is not supported by a reading
of Annexure
B. Irrespective as to whether the articles were used in
the commissioning of a crime, the respondents are to follow the
provisions
of the CPA if they want to seize the articles lawfully. As
stated above, the respondents failed to refute the allegation that
the
items listed in 4(i)-(x) were seized on 18 May 2021 after the
warrant was obtained. This means that although the warrant authorises
the seizure of the truck logbooks, the seizure thereof prior to the
warrant being obtained remains unlawful.
[19]
As far as the seizure of the computers are
concerned, I am of the view that the seizure thereof meets the
requirements of s 22 of
the CPA. The respondents indicate that the
computers were seized for fear that information contained on the
computers would be
wiped if not seized during the operation. The
submission is also made that the computers were used in the
commissioning of fraudulent
and corrupt activities. As such, the
computers fall within the description of s 20 of the CPA, and the
respondents met the requirements
stated in s 22 of the CPA. Where
goods were lawfully seized a court other than the court presiding
over the criminal matter should
be hesitant to order its return to an
accused where criminal proceedings are pending, if it is empowered at
all to do so. The CPA
regulates the procedure for the disposal of
articles after seizure. Section 34(6) of the CPA provides that if the
circumstances
require, the judge or judicial officer presiding at the
criminal proceedings may make any order regarding the disposal of the
asset,
inclusive of returning it to the person from whom it was
seized.
[20]
As far as costs are considered, the
applicants are substantially successful in obtaining the relief
sought. In the result, they
are entitled to the costs of the
application.
Order
In
the result, the following order is granted:
1.
The application is dealt with on a basis of
urgency and non-compliance with the Uniform Rules of Court are
condoned;
2.
The respondents are directed to restore the
first and second applicants' possession of the following goods:
2.1.
2019 Ford Transit Custom vehicle with
registration no. HZ 34 FH GP;
2.2.
2019 Mercedes-Benz Actros vehicle with
registration no. JB 95 JF GP
2.3.
Slidelifter with registration no. DX 36 JW
GP;
2.4.
2021 UD Quon vehicle with registration no.
JV 99 ML GP;
2.5.
12m Flatdeck trailer, registration no. DC
74 DG GP;
2.6.
2021 UD Quon vehicle with registration no.
JV 99 MM GP
2.7.
A skeletal trailer;
2.8.
3 ton Manhand forklift;
2.9.
4 x 6m containers, with the exception of
the containers containing allegedly stolen train and wagon wheels;
2.10.
Driver logbooks and delivery notes from
each of the trucks described above;
2.11.
All documentation seized on 18 May 2021
that are not listed in Annexure B of the search and seizure warrant
dated 17 May 2021.
3.
The respondents are to pay the costs of the
application jointly and severally, the one to pay the other to be
absolved.
E
van der Schyff
Judge
of the High Court, Gauteng, Pretoria
Delivered:
This judgement is handed down electronically by uploading it to the
electronic file of this matter on CaseLines. As a
courtesy gesture,
it will be sent to the parties/their legal representatives by email.
The date for hand-down is deemed to be 20
July 2021.
Counsel
for the applicants:
Adv. DJ Joubert SC
Instructed
by:
Ulrich Roux & Associates
Counsel
for the respondents:
Adv. T Madileng
Instructed
by:
State Attorney, Pretoria
Date
of the hearing:
15 July 2021
Date
of judgment:
20 July 2021
[1]
1972 (3) SA 858
(A) at 865G-H.
[2]
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635D.
[3]
1949 (3) SA 1155
(T) at 1165.
[4]
1956 (4) SA 150
(E) 154 E-H.