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[2020] ZALMPPHC 86
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OMJ Projects (Pty) Ltd and Another v Minister of Police and Others (6240/2020) [2020] ZALMPPHC 86 (21 October 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
(1)
REPORTABLE:
NO/
YES
(2)
OF
INTEREST TO OTHER JUDGES:
NO/
YES
(3)
REVISED.
CASE
NO:
6240/2020
In
the matter between:
OMJ
PROJECTS (PTY) LTD
FIRST APPLICANT
BAOBAO
PROJECTS CC
SECOND APPLICANT
And
THE
MINISTER OF POLICE
FIRST RESPONDENT
NORTHAM
PLATINUM MINE
SECOND RESPONDENT
NATIONAL
PLATINUM LIMITED
THIRD RESPONDENT
JUDGMENT
NAUDE
AJ:
[1]
The First and Second Applicants brought
an urgent application wherein the Applicants seek an order directing
the Respondents to
return the First Applicant's trucks and trailers
as detailed in the Notice of Motion back to the First Applicant. The
trucks and
trailers are currently in possession of the First
Respondent. The First Applicant is a heavy haulage and logistics
service provider
and leases the trucks and trailers from the Second
Applicant.
[2]
According to the First Respondent, the
police received a complaint on 13 August 2020 about trucks that were
used for transporting
stolen chrome form the Second Respondent. A
case was opened under CAS60/08/2020. Police reaction led to the
arrest of five trucks
travelling along the R24, transporting alleged
stolen chrome. An additional three trucks were allegedly caught by
mine security
whilst still loading and allegedly stealing chrome.
There is according to the First Respondent, no dispute as to how the
police
managed to arrest the drivers of the trucks and recover the
alleged stolen chrome. It is further not in dispute that a number of
people were charged with criminal offences. Upon arresting the
trucks, trailers and drivers, including those trucks and trailers
that were found on the Second Respondent's mine premises, the police
left the trucks on the Second Respondent's premises for storage
purposes and in order to arrange for their towing to a police pound
in Polokwane. Further according to the First Respondent, the
alleged
theft of chrome was allegedly done or orchestrated with the help of
the First Applicant's Manager and that the proceeds
of the alleged
illicit theft of chrome was paid into the First Applicant's bank
account. The First Respondent contends that it
is for this reason,
and on account of the investigations that are still ongoing, that the
First Respondent is opposed to the release
of the trucks. The trucks
and trailers were removed from the Second Respondent's premises in
Northam to the Police pound in Polokwane
from 4 to 7 September 2020.
All this happened without a warrant.
[3]
The First Respondent opposed the
application on the basis that the application lacks urgency and
secondly that the Applicants' application
lacks merits to sustain the
relief sought by the Applicants. The First Respondents, contend that
the trucks and trailers were used
in the commission of a crime and as
a result were entitled to search, seize and continue to keep the
trucks and trailers until
the finalization of the criminal
proceedings that are to follow. In essence the First Respondent
raised a defence of right. See
Diepsloot
Residents' and Land Owners' Association and Another v Administrator,
Transvaal
[1994] ZASCA 24
;
1994 (3) SA 336
(A) at 34SC.
[4]
It is common cause that the legal basis
of the Applicants' case is
akin
to
a remedy of
mandament van spolie.
To
succeed the applicant must show that it enjoyed possession, which is
peaceful and undisturbed, of the trucks and trailers and
that the
Respondents deprived it of such possession forcibly or wrongfully
against its consent. See
Yeko v Qana
1973 (4) SA 735
(A) at 739.
[5]
It is the applicants' case that the
removal of the trucks and trailers is unlawful to the extent that the
police violated their
possessory rights under the doctrine of
mandament van spolie .
A
reference to the statement made by Mhlantla JA in the case of
Svetlov
lvancmec Ivanov v North West Gambling Board and 5 Others
(312/2011)
[2012] ZA SCA (31 May 2012)
will
help in understanding the applicants' cause of action. The learned
Judge of Appeal said at page 12, para [19]:
"The historic background
and the general principles underlying the mandament van spolie are
well established. Spoliation is
the wrongful deprivation of another's
right of possession. The aim of spoliation is to prevent self-help.
It seeks to prevent people
from taking the law into their own hands.
An applicant upon proof of two requirements
is
entitled to a
mandament van spolie restoring the status quo ante. The first, is
proof that the applicant
was
in possession of
the spoliated thing. The cause for possession
is
irrelevant
-
that
is
why possession by
a thief is protected. The second, is the wrongful deprivation of
possession. The fact that possession
is
wrongful or
illegal
is
irrelevant as
that would go to the merits of the dispute."
See also:
Nino Bonino v De
Lange
1906 TS 120
at 122.
[6]
The duty to prove
mandament
van spolie
falls on the applicant.
See:
Runsin Properties v
Ferreira
1982 (1) SA 658
(SECLD) at 669.
It
is not in dispute that the Applicants were in possession of the
trucks and trailers, what is in issue is whether they were deprived
of their possession lawfully.
[7]
The First Respondent contends that the
police actions are within the ambit of
Section 20
of the
Criminal
Procedure Act, 51 of 1977
, read with
Section 22
of the
Criminal
Procedure Act. The
main issue for consideration by this court is
whether the trucks were seized by the First Respondent in compliance
with the
Criminal Procedure Act. It
is common cause that the trucks
and trailers were seized without a warrant and will the First
Respondent have to satisfy the requirements
of
Section 22
of the
Criminal Procedure Act, which
reads as follows:-
"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
-
(a)
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
(own
emphasis)
(ii)
that the delay in
obtaining such warrant would defeat the object of the search."
[8]
In
terms of
Section 22
of the
Criminal Procedure Act, the
police are
entitled to seize property without a warrant. In the circumstances of
this case, some of the trucks were caught transporting
stolen
property, while others were caught in the act of theft within the
mine premises. The Respondent's counsel argued that in
terms of the
provisions, in those circumstances, the police were entitled to take
immediate action and seize the instrumentality
used in the commission
of crime.
[9]
In
Magoda v Minister of Safety and
Security and Another; Mxhego v Minister of Safety and Security and
Another (380112) [2013] ZAECMHC
5 (28 February 2013)
the
court held as follows at paragraph 15 and 16 thereof:-
"[15] The provisions of
s
20
of the Act read:
"The State may, in
accordance with the provisions of this Chapter, seize anything (in
this Chapter referred to as an article)-
1.
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;
2.
which
may afford evidence of the commission or suspected commission of an
offence, whether within the Republic or elsewhere; or
3.
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 essence the law recognizes
that balance should be maintained between the rights of the police to
conduct searches and seizures
unhindered by the cumbersome procedural
requirements relating to obtaining a search warrant and the rights of
possession accorded
to citizens under
s 14
(b) and (c) of the
Constitution of the Republic of South Africa, 1996. These subsections
provide that everyone has
a
right to privacy,
which includes the right not to have their property searched or their
possessions seized. But the tension experienced
in the exercise of
maintaining balance of these rights makes the task of the courts
a
difficult one.
[16] The Legislature enjoins
the respondents to prove by credible evidence that the seizure of the
Toyota and Nissan complied with
the provisions of s 20 of the Act.
That is, the scheme of Chapter 2 to the Act is such that even if
consent to search a vehicle
is obtained the ultimate seizure
(dispossession) thereof must comply with the provisions of s 20
strictly. Failure on the part
of the police to show that the seizure
was in compliance with s 20 will render the seizure unlawful, and the
removal of the vehicles
from Blackhill to the police pound an act of
spoliation entitling the applicants to restoration ante omnia
regardless of the fact
that they would not, at the time of search and
seizure, have been entitled to possess them in terms of
s
68(6)(b)
of the
National
Road Traffic Act 93 of 1996
,
which
provides:
"No person shall
-
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.""
[10] In
the circumstances it is for the respondents to show that the decision
taken by the police to seize
the trucks and trailers falls within the
ambit of
s 20
of the Act. The proper approach to be adopted in
applying the section was considered by Didcott J in the case of
Ndabeni v Minister of Law and Order and Another
1984
(3) SA 500
(D and C.L.D.) at 511D-E.
The Learned Judge said:
"The second respondent, (that
is the policeman concerned) no doubt thought that there were
reasonable grounds for the belief
he held. That, however, was by the
way.
Section 20
of the
Criminal Procedure
Act calls
for the existence in fact of reasonable grounds.
And whether these exist in a given case must be determined
objectively. Milne J
once said "(T)here can only be reasonable
cause to believe ...where, considered objectively, there are
reasonable grounds
for the belief .. It cannot be said that an
officer has reasonable cause to believe... merely because he believes
he has reasonable
cause to believe."
[11]
The law on warrantless searches and
seizures is trite. Since the Police did not have a warrant they must
prove that they had reasonable
grounds to believe that a search
warrant would be issued to them if they had applied for it to the
magistrate or judge. This court
is satisfied that the Police did
indeed have reasonable cause to believe based on reasonable grounds
that the trucks and trailers
in question was concerned in the
commission or suspected commission of an offence and/or was intended
to be used in the commissioning
of an offence on the 13
th
of August 2020. See the case of
Hiya
v The Minister of Safety and Security and Another Case No 506/99 TK.
This court is further satisfied, and
it is not in dispute by the parties either, that the police had
reasonable grounds to believe
that a search warrant would be issued
to them if they had applied for it on 13 August 2020. The First
Respondent has therefore
satisfied the first requirement as laid down
in
Section 22(b)(i)
of the
Criminal Procedure Act, but
the issue
still remaining is the second requirement in terms of
Section
22(b)(ii)
of the
Criminal Procedure Act, which
must also be
satisfied. Both
Section 22(b)(i)
and
Section 22(b)(ii)
must be satisfied
and not just the one or the other as the act clearly states "and"
and not "or" in order for
the search and seizure without a
warrant to be lawful.
[12]
In light of the facts, as already stated
here above, the trucks and trailers were searched and seized on the
13
th
of August 2020, but the actual dispossession only took place over a
period of 3 days from 4 to 7 September 2020 when the trucks
and
trailers were removed to the Police pound in Polokwane. There is in
my view no reason why the First Respondent could not between
the
period from 13 August to 4 September 2020 obtain a warrant from a
judge or magistrate for the removal of the trucks and trailers.
No
explanation was given by the First Respondent either why a warrant
could not be obtained. Bearing in mind the time lapse between
the
13th of August 2020 to 4 September 2020, there is in my view no
grounds for the First Respondent upon which the First Respondent
can
contend that the delay in obtaining such warrant would defeat the
object of the search as per the requirement laid down in
Section
22(b)(ii)
and were there more than ample time to obtain such a
warrant from a judge or magistrate in order to ensure that the
seizure and
actual removal of the trucks and trailers on 4 to 7
September 2020 is lawful.
[13]
The Full Bench in the case of
Sitonga
v Minister of Safety and Security and 2 Others
2008
(1) SACR 376
(Tk) at paragraph [37]
held
as follows:
"Whilst it may result in
the applicant in spoliation proceedings being placed in possession of
an article he or she may otherwise
not lawfully
possess,
it should be
borne in mind that the mandament van spolie affords no more than
temporary relief. The respondent can, subsequent to
the applicant
having been restored in his or her possession, seek judicial
dispossession, ejectment or other appropriate relief.
Applied to the
facts of the present matter, it is always open to the respondents to
seek lawful dispossession of the vehicles in
terms of the provisions
of
section 21
read with
section
20
of the
Criminal
Procedure Act."
>
[14]
Having regard to the fact to what was
held in the
Sitonga
case
supra
the
respondent can, subsequent to the applicants having been restored in
his or her possession, seek judicial dispossession or other
appropriate relief.
Having said that,
in my view the
same
should
apply to the fact that the First Respondents, knowing that the search
and seizure
was
done
without
a
warrant,
could have sought judicial dispossession or other appropriate relief
during the period from 13 August 2020 to
7
September 2020 in order to ensure
that the First Respondents acted lawfully.
The
First Respondent's counsel argued that the search and seizure was
done in only one continuous incident, on 13 August 2020, and
that the
actual dispossession on 4 to 7 September 2020 when the trucks and
trailers were actually removed, should not be seen as
a separate
incident in that the search and seizure was complete on 13 August
2020 and the delay was only to arrange for transport
and towing of
the trucks and trailers to the pound in order to finalize the search
and seizure process that already occurred on
the 13th of August 2020.
This argument in my view, is not correct. Although the search was
conducted on the 13th of August 2020,
the seizure was only done on 4
September 2020 and there is no reason why a warrant could not be
obtained. I therefore find that
the First Respondent failed to prove
the second requirement in that the delay in obtaining a warrant would
defeat the object of
the search (and seizure) and consequently the
Respondents have failed to justify the seizure of the trucks and
trailers on legal
grounds. The act of spoliation is therefore proved
and there is further no reason to allow the continued detention of
the trucks
and trailers by the First Respondent.
[15]
I was referred to the unreported
Eastern
Cape High Court: Mthatha case of Eunice Feziwe Mbangi v The Minister
of Safety and Security and Another, Case Number 862/09,
delivered on
8 April 2010
by the Applicant's
counsel wherein the court made an order that the vehicle in that case
be made available to the police as and
when it is required for the
purposes of a pending criminal trial. Nhlangulela J granted such an
order. Counsel for the Applicant
in the present matter was amenable
to such an order being granted in this matter as well on condition
that specific arrangements
be made with the Applicants and that such
trucks and trailers be made available for a specified period, dates
and on specified
times. I am inclined to grant such an order as it
has been accepted practice that it may be so granted despite the law
that in
spoliation proceedings a thing spoliated must be returned to
the possessor without any qualification. Had the Applicant's counsel
resisted such practice being applied in this case, I would not be
obliged to follow the practice at the expense of the well-established
remedy of mandament van spolie.
[16]
There is no reason why the costs should
not follow the event and in this matter be paid by the First
Respondent only. The Applicant
prayed for costs against the First
Respondent and in the event of opposition by the Second and/or Third
Respondents, in such event
against the party opposing. Neither the
Second, nor the Third Respondents opposed the application, and as a
result no cost order
is made against the Second and Third
Respondents. The Applicant furthermore prayed for costs on an
attorney and client scale. There
is no basis for such a higher
punitive cost order to be paid by the First Respondent and no
justifiable argument was advanced during
the argument of this matter
justifying such a punitive cost order, either.
[17]
I therefore make the following order:-
1.
The Applicant's non-compliance with the
rules of this Honourable Court relating to notice and service and
time limits be condoned
and that the matter be heard as urgent in
terms of
Rule 6(12)(a)
;
1
.24cm; text-indent: -0.95cm; line-height: 150%">
2.
The First Respondent is ordered to
return the heavy delivery vehicles and side tipper trailers
('the
trucks and trailers' )
to the First
Applicant, the relevant particulars of the trucks and trailers being
as per prayer 2.1 to 2.24 of the Notice of Motion.
3.
The First and Second Applicants be and
is hereby interdicted and/or restrained or prohibited from disposing
of or altering or tampering
with the trucks and trailers in any
manner whatsoever pending the finalization of criminal proceedings
already instituted, and
the trucks and trailers as per 2 above to be
produced to an investigating officer and the criminal court whenever
the Applicants
are required to do so, with at least 14 days prior
written notice to the Applicants.
4.
The First Respondent to pay the costs of
the application on a party and party scale.
M. NAUDE
ACTING JUDGE OF
THE HIGH COURT
APPEARANCES:
HEARD
ON:
16 OCTOBER 2020
JUDGMENT
DELIVERED ON: 21 OCTOBER 2020
For
the Applicants:
Adv. L.K. Van Der Merwe
Instructed
by:
Phosa Loots Inc. Attorneys
C/O Pratt Luyt & De Lange
Attorneys
For
the Respondent:
Adv. M Z Makoti
Adv. LB Moshoeu
Instructed
by:
The Office of the State Attorney
Polokwane