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[2020] ZAGPPHC 153
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Kleinhans v Minister of Police and Others (89563/19) [2020] ZAGPPHC 153 (29 January 2020)
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTNEG DIVISION, PRETORIA
CASE NUMBER: 89563/19
29/1/2020
In the matter between:
JACOBUS
JOHANNES KLEINHANS.
APPLICANT
and
MINISTER OF POLICE
1
ST
RESPONDENT
NATIONAL COMMISSIONER OF
POLICE
2
ND
RESPONDENT
WARRANT OFFICER LEMMER
3
RD
RESPONDENT
CONSTABLE VAN
UYSEN
4
TH
RESPONDENT
CAPTAIN DE JAGER
5
TH
RESPONDENT
SAMANTHA WRIGHT
6
TH
RESPONDENT
JUDGMENT
MAVUNDLA
J;
[1] The applicants
approached this Court seeking an order in terms of rule 6(12) for the
matter to be heard on urgent basis and that:
1.1 That the first to fifth
respondents be ordered to attach the applicant's moveable
assets
wherever same might be found;
1.2 that the third to
fifth respondents be ordered to institute prosecution against
any
individual who might be found in unlawful possession of the
applicant's movable assets;
1.3 an order in terms
of which the respondents are ordered to pay the applicant's
costs,
one paying the other one to be absolved, only if the application is
opposed;
1.4 further and or
alternative relief.
[2]
The applicant averred, inter alia, that:
2.1 the sixth applicant,
unlawfully and intentionally took possession of his movable assets
and sold same to third parties without his knowledge and or consent.
During February 2019 he opened a criminal charge of theft
against the
sixth respondent at Wonderboompoort Police Station under CAS
116/2/2019 for certain movable assets and at that stage
Warrant
Officer Lemmer, the third respondent investigated the matter and
initially it was indicated that no prosecution would be
instituted as
the matter was perceived to be a civil matter;
2.2 during the same time and
sometime after the sixth respondent also opened a number
of criminal
charges against the applicant which charges were all
nolIi
prosequi-
ed;
2.3 the applicant insisted that the
matter be properly investigated and that the sixth respondent
should
be prosecuted for theft of the applicant's assets. The matter was
submitted to the senior prosecutor, Mr Maphopha at Pretoria
North
Magistrate's court in order for him to decide to prosecute the sixth
respondent and after undue delay his attorney eventually
secured a
meeting with the senior prosecutor;
2.4 on 28 February 2019 the
applicant and his attorney approached Mr Maphopha in his office
in
order to discuss the matter with him and to enquire whether the sixth
respondent would be prosecuted for theft of the applicant's
movable
assets;
2.5 during their
visit to Mr Maphopha's office, he indicated that he would only
speak
to the applicant's attorney of record and that the applicant should
wait in the hallway despite the fact that the applicant
is the
complainant. He was later informed that Mr Maphopha decided not to
prosecute the sixth respondent and the matter was referred
to the
Control Prosecutor, Mr Maphoso;
2.6 on 27 March 2019 the
applicant's attorney of record met with Mr Maphoso, the control
prosecutor at Pretoria North Magistrate's court who indicated he
would not make a decision on the matter and that the matter would
be
referred to the Director of Public Prosecution for a decision;
2.7 after waiting for a
decision from 27 March 2019 until 13 September 2019, a decision
was
eventually taken by Adv. Mohammed of the Director of Public
Prosecution, that the sixth respondent should be prosecuted;
2.8 the sixth
respondent has appeared before court on the theft charges and the
trial will commence on 10 December 2019. The sixth respondent
unlawfully and intentionally deprived the applicant from movable
assets in excess of RS00 000. 00 9eight hundred rand) and currently
Is facing theft charges for the theft of the applicant's movable
assets to the value of R120 000. 000 (one hundred and twenty thousand
rand);
2.9 despite the
investigating officer warning the sixth respondent from selling
off
any further of the applicant's movable assets, she continued to do so
and the applicant is in the process of filing further
charges against
the sixth respondent in respect of the balance of the applicant's
movable assets;
2.10 immediacy upon filing further
theft charges against the sixth respondent at Wonderboompoort
SAPS
the investigating officer W/O Lemmer (the third respondent) he knew
exactly who bought the applicant's movable assets and
where they were
as the sixth respondent informed him. The applicant also informed him
of the identities of the third parties to
whom the assets were sold
to, but the W/O failed to retrieve these movable assets, and these
still remain with the third parties;
2.11 the applicant also met with
Captain de Jager and insisted that his movable assets should be
attached, but the captain responded that it was not possible and not
the responsibility of the SAPS to do so and that no attachment
would
be done as they did not want to risk being sued. De Jager further
informed the applicant that it is the court which must
authorise them
to attach the alleged stolen goods;
2.12
the
applicant further contended that the police were negligent in their
duty by not attaching the movable assets of the applicant.;
2.13 The Director of Public Prosecution
through Adv. Mohammed also declined to instruct the SAPS
to attach
the assets, alleging that they do not have authority to instruct the
police to do so;
2.14 the applicant contended that the
matter is urgent because he is involved in a number of cases
against
the sixth respondent and recently the sixth respondent made attempts
at his life on two occasions when his caravan home
was petrol bombed.
During all the court appearances the sixth respondent was accompanied
by Hell's Angels and Mac's Motorcycle
Organization and the applicant
is intimidated
as a
result;
2.15 the applicant has been alienated
from his daughter, his movable assets and business by the sixth
respondent and all his efforts to protect his rights to a large
extent have been unsuccessful which is largely frustrating as a
result of the sixth respondent's vexatious and frivolous conduct over
the past twelve months;
2.16 the individuals who bought his
movable asserts from the sixth respondent are direct family members
of the sixth respondent; these are the sixth respondent's brother,
brother-in-law, her sister who all knew when they bought the
goods
that these belonged to the applicant and that the sixth respondent
never had the means to acquire the assets by herself;
2.17 the sixth respondent never had
ownership of the relevant movable goods, therefore had no authority
to transfer to any third party and the individuals who bought the
goods are just as guilty as the sixth respondent;
2.18 the SAPS in terms of the Criminal
Procedure Act have always had a duty to attach the applicant's
movable goods, but despite the fact that the applicant provided them
with concrete proof that he was the owner of and had bought
such
goods, have failed in their duty to attach the said goods;
2.19 All efforts through the SAPS, the
Director of Public Prosecution's office per Adv. Mohammed,
the
magistrate's court in Pretoria North to recover his goods, proved
fruitless, thus leaving him with no option but to approach
this
court;
2.20 the matter is urgent because the
sixth respondent who is his daughter continues tirelessly to
alienate
the movable assets of the applicant, and all efforts to enforce his
rights have proved fruitless;
2.21 he has no other alternative but to
turn to this court to enforce his rights;
2.22 he did not waste time in turning
to this court, but did so as soon as it became apparent that
the SAPS
and the Director of Public Prosecutions and the Pretoria North
magistrate court were unwilling to assist him.
[3]
This application, in my view, stands to be dismissed for the
following reasons:
3.1 the applicant has
already laid criminal charges against the sixth respondent, who
she
alleges to have taken her goods without her consent or authority. The
criminal case is pending in the Pretoria Magistrates
court. There is
no reason, why this court can ignore this fact and the
audi
alteram
principle, and issue an order to the police to attach
goods from third parties who have not been joined in the present
application.
3.2 in his own version the
sixth respondent has sold the relevant goods to third parties.
That
being the position, the SAPS cannot attach the relevant goods from
the third parties, who
bona fide
bought the goods from the
sixth respondent. The applicant can institute a claim against those
individuals, jointing the sixth respondent
to return the said goods
or pay her the damages.
3.3 this court does not have
powers to instruct the SAPS to attach goods which have been
bona
fide
purchased by third parties from the sixth respondent;
3.4 the applicant could have
brought on urgent basis a spoliation action application against
the
sixth respondent as far back as in February 2019, to recover his
goods;
3.5 the orders sought by the
applicant are final in nature. The applicant does have alternative
remedy, a criminal investigation by the SAPS, which is already in
progress as the sixth respondent is already facing theft charges
over
the said goods, and a civil damages
rei-vindicatio
or damages'
claim against the sixth respondent and the third parties she sold the
goods to;
vide Minister of Health v Drums and Pails Reconditioning
CC..
[1]
[4] In respect
of urgency, if the court finds that the matter is not urgent, it must
strike
the matter off the urgent roll. The matter would then have to
go to the unopposed motion roll or opposed roll. This will further
clog our extremely busy court roll, wasting the court's precious time
by unmerited claims. In order to avert this, in the exercise
of my
discretion, I assume without deciding the issue, that the matter is
urgent and proceed to dismiss it on the merits as indicated
herein
above.
[5] In the
result the application is dismissed and no costs order is made.
N.M. MAVUNDLA J.
DATE OF JUDGMENT
: 29/01/2020
APPLICANT'S ADV.
: ATT. R. VAN RENSBURG
INSTRUCTED
BY
: KMG & ASSOCCIATES INCORPORATED
RESPONDENTS
ADV : ADV.
INSTRUCTED
BY
: STATE ATTORNEY PRETORIA
[1]
Minister of Health v Drums and Pails Reconditioning
CC
1997
(3) SA 867
at 872C.