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[2019] ZAFSHC 22
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Songqwaba v MEC for Police Roads and Transport, Free State Province and Another (391/2019) [2019] ZAFSHC 22 (14 March 2019)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 391/2019
In
the matter between:
SONGQWABA
SIYAKUDUMISA
Applicant
and
THE
MEC FOR POLICE, ROADS AND TRANSPORT,
FREE
STATE
PROVINCE
1
st
Respondent
THE
COMMANDER,TRAFFIC DEPARTMENT
WEPENER,
FREE STATE PROVINCE
2
nd
Respondent
CORAM:
DAFFUE, J
HEARD
ON:
14
MARCH 2019
JUDGMENT
BY:
DAFFUE,
J
DELIVERED
ON:
14
MARCH 2019
I
INTRODUCTION
[1]
On 28 January 2019 applicant launched an urgent application intending
to obtain relief on 7 February 2019, in essence the release
of his
motor vehicle. On 6 February 2019 respondents gave notice of
intention to oppose and filed their answering affidavit
the next
day. By agreement the matter was postponed to the opposed roll
of 21 February 2019 with further orders pertaining
to the filing of
the replying affidavit and heads of argument. Since then the
matter was postponed by agreement more than
once.
II
THE
PARTIES
[2]
Applicant is Mr S Songqwaba a businessman residing at Chris Hani
Park, Mthatha, Eastern Cape. He is the owner of a Toyota
Quantum motor vehicle with registration number […]EC (“the
Quantum”). He is represented in these
proceedings
by Adv SK Maliwa.
[3]
First respondent is the MEC for Police, Roads and Transport, Free
State Province, herein represented by the Office of the State
attorney. Adv BS Mene appeared for the MEC. I shall
herein later refer to the MEC as the respondent.
[4]
Although the commander of
the Wepener Traffic Department was cited as second respondent, it is
denied that such a position or person
exits, but this is immaterial
to the adjudication of the application.
III
THE
RELIEF CLAIMED
[5]
Applicant sought condonation in terms of rule 6(12) as well as
section 35 of the General Law Amendment Act, 32 of 1955 in order
to
have the application heard as one of urgency. Although Mr Mene
addressed the issue of urgency in his heads of argument,
nothing
turns on this anymore. The merits have been traversed fully.
[6]
Applicant intended to obtain a rule nisi returnable on 28 February
2019 in terms whereof it sought i
nterim
orders that the search and seizure of the Quantum be declared
unlawful and unconstitutional and the Quantum be released to him
forthwith. It is apparent from the affidavits and applicant’s
heads of argument in particular that he relies on the mandament
van
spolie for the relief claimed pertaining to the release of the
Quantum.
[7]
Insofar as the parties have now filed their affidavits on the merits,
there is no need to consider an
interim
order. If the
applicant is successful, relief should be granted as claimed in
paragraphs 3.1 to 3.3 and 5 of the notice of
motion. If the
court finds that applicant has not proved its case, the application
shall be dismissed with costs. Respondent
claims that the claim
is frivolous and that a punitive costs order should be issued.
IV
THE
DEFENCE
[8]
On 6 January 2019 respondent’s Transport Inspector, Mr R
Motshumi, stopped the driver of the Quantum and after making
enquiries issued a traffic fine and impounded the Quantum. The
impoundment was done in accordance with sections 99(1) and
99(2) read
with sections 102(1)(b) and 103 of the Free State Public Transport
Act, 4 of 2005 (“the Free State Act”).
[9]
Instead of acting swiftly, applicant filed its urgent application
three weeks later, to wit on 28 January 2019, intending to
obtain
relief a few days later and without complying with the rules of
court. Therefore, Mr Mene argued that urgency was
self-created
and the application should not be entertained. I dealt with
this
supra
.
Nothing further should be said in this regard.
[10]
Respondent is adamant that any person transporting passengers for
reward must have the required operating permit.
In
casu
the driver indicated that he did not have a permit and applicant also
failed to attach a permit to his papers. Insofar as
the
National Land Transport Act, 5 of 2009
and the Free State Act have
been contravened, respondent’s Traffic Inspector impounded the
Quantum lawfully.
V
THE
MANDAMENT VAN SPOLIE
[11]
Applicant relies on the mandament van spolie for the relief claimed,
apparently in particular in respect of the release
of the Quantum.
He suggests that he was in peaceful and undisturbed possession of the
Quantum until it was seized and also
that he was unlawfully deprived
of his possession.
[12]
The requirements of the mandament van spolie are well-known and
applicant correctly referred thereto in his founding affidavit.
In
order to succeed with the mandament van spolie an applicant must
allege and prove the following two requirements:
12. that he was in
peaceful and undisturbed possession of the object;
12.2 that he was
deprived of possession unlawfully.
See:
Yeko
v Qana
1973 (4) SA 735
(AD) at 739 E, C G van der Merwe,
Sakereg
,
2nd ed, p 129 and further and Klein & Borreine,
The
Law of Things,
at
pp. 134 – 141
.
[13]
In
Tswelopele Non-profit Organisation v City of Tswane
Municipality
2007 (6) SA 511
(SCA) the court per Cameron, JA
commented as follows in paragraph [21]:
“
[21]
It is true that the
mandament
offered
the occupiers an alluring template for the relief they crave. The
remedy originated in the canon law, and found its
way thence into
Roman-Dutch law and modern South African law. Under it, anyone
illicitly deprived of property is entitled
to be restored to
possession before anything else is debated or decided (
spoliatus
ante omnia restituendus est
).
Even an unlawful possessor - a fraud, a thief or a robber - is
entitled to the
mandament
's
protection. The principle is that illicit deprivation must be
remedied before the Courts will decide competing claims to
the
object or property.”
[14]
In
Ngqukumba
v Minister of Safety and Security
2014 (5) SA 112
(CC) Madlanga, J dealt with a situation where members
of the South African Police Service without a search and seizure
warrant
had seized a vehicle whose engine and chassis numbers had
been tampered with. The learned judge explained the legal
position
in paragraphs [10] – [17] and I paraphrase the
dicta
as follows:
“
10]
The essence of the mandament van spolie is the restoration before all
else of unlawfully deprived possession to the possessor.
It finds
expression in the maxim
spoliatus
ante omnia restituendus est
(the
despoiled person must be restored to possession before all else).
The
spoliation order is meant to prevent the taking of possession
otherwise than in accordance with the law. Its underlying
philosophy is that no one should resort to self-help to obtain or
regain possession.
The
main purpose of the mandament van spolie is to preserve public order
by restraining persons from taking the law into their own
hands and
by inducing them to follow due process. [11] This applies
equally whether the despoiler is an individual or a government
entity
or functionary. …….
[12]
A spoliation order is available even against government entities
for the simple reason that unfortunately excesses by
those
entities do occur…
……
[13]
It matters not that a government entity may be purporting to
act under colour of a law, statutory or otherwise. The real
issue is whether it is properly acting within the law. After all, the
principle of legality requires of state organs always to
act in terms
of the law.
Surely
then it should make no difference that in dispossessing an individual
of an object unlawfully, the police purported to act
under colour of
the search and seizure powers contained in the Criminal
Procedure Act. Non-compliance with the provisions
of the
Criminal Procedure Act in seizing a person's goods is unlawful…….
[14]
The obvious conclusion is that the mandament van spolie is available
even against the police where they have seized goods unlawfully.
The central question is: are ss 68(6)
(b)
and 89(1) of the
Traffic Act to be read in a manner that alters this position? Do they
stand in the way of restoration of
possession of the vehicle in terms
of a spoliation order in this matter? I think not.
[15]
It seems to me that on this subject the Supreme Court of Appeal
proceeds from the premise that a tampered vehicle is no different
from an article the possession of which would be unlawful under
all circumstances. That is an erroneous premise because possession
of
a tampered vehicle will be unlawful only if it is 'without lawful
cause'.
That
leads me to a crucial point of departure. It is that in this case we
are not concerned with objects the possession of which
by ordinary
individuals would be unlawful under all circumstances. Had we been
concerned with objects of that nature, then the
mandament van spolie
might well not be available; but that issue is not before us and
need not be decided. The fact that we
are here concerned with an
article that
may
be possessed quite lawfully
makes
all the difference. On the assumption that an individual can never
possess heroin lawfully, the Supreme Court of Appeal's
heroin example
is not apt. At the risk of repetition, the simple point of
distinction is that an individual can possess a
tampered vehicle if
there is lawful cause for its possession.
[16]
With this in mind I take the view that ss 68(6)
(b)
and
89(1) of the Traffic Act must as far as possible be read in a manner
that is harmonious with the mandament van spolie…….
[17]
Specifically on self-help and thus more on point, in
Vena
Milne
JA expressly approved a statement by Friedman J in the court of
first instance, which read as follows:
'It
is a fundamental principle of our law that a person may not take the
law into his own hands and a statute should be so interpreted
that it
interferes as little as possible with this principle.'”
VI
EVALUATION
OF THE EVIDENCE AND THE PARTIES’ SUBMISSIONS
[15]
It is common cause that the Quantum was used to carry passengers from
the Eastern Cape through the Free State
en
route
to Gauteng. It is also common cause that applicant does not
have an operating permit for such transportation, that the Quantum
was used for unauthorised services in terms of the Free State Act and
the National Land Transportation Act, 5 of 2009, that the
vehicle was
impounded on 6 January 2019 and that applicant’s driver
received written notice to appear in the Wepener court
to face a
charge for transporting passengers without an operating permit.
[16]
Mr Maliwa was initially not prepared to accept that the Free State
Act exists. During the tea break Mr Mene presented
him with a
copy of the Act and I accessed the Jutastat electronic services to
obtain clarity. There cannot be any doubt that
the Free State
Act became law on 23 March 2007 and has not been repealed.
[17]
In my view the legislation is clear. Respondent’s Traffic
Inspector acted lawfully and in terms of the applicable
provincial
and national legislation in impounding the Quantum pending the
outcome of the criminal prosecution.
[18]
I do not agree with Mr Maliwa’s submission that the facts
in
casu
are on all fours with those in
Ngqukumba
.
The case is clearly distinguishable from the facts in the
Ngqukumba
judgment. In that case the court held that possession of a
tampered vehicle will be unlawful only if it is “without
lawful
cause” as set out in
section 68(6)(b)
of the
National Road
Traffic Act, 93 of 1996
. The court was satisfied that the
seizure without the necessary warrant was not in accordance with the
law. Madlanga, J
held in paragraph [18] that nothing in
sections
68(6)(b)
and
89
(1) indicates that the sections plainly intended to
alter the common law and therefore the sections must be read not to
oust the
normal operation of the mandament van spolie. In
paragraph [19] the learned judge warned that members of the South
African
Police Service shall comply strictly with the
Criminal
Procedure Act, 51 of 1977
relating to search warrant requirements.
In casu
an
authorised officer who is satisfied on reasonable grounds that a
motor vehicle is being used by any person for operation of public
transport without the necessary operating licence or permit may
impound the vehicle pending investigation and prosecution of that
person. The word “may” is indicative that the
officer does have a discretion, but his/her authority is evidently
clear.
[19]
In casu
the Traffic Inspector was satisfied, after making the necessary
enquiries, that the applicant’s driver was using the Quantum
in
conflict with the aforesaid legislation. Clearly, on
respondent’s version which must be accepted for purposes
hereof,
the passengers were transported for reward. Applicant
states so much in his own words in paragraph 8 of the founding
affidavit.
Applicant failed to present the required permit
which he could and should have done when he launched this
application. The
Traffic Inspector did not merely purport to
act under colour of the legislation, to borrow the words used by
Madlanga, J, but he
acted properly within the law. People
should not be allowed to transport passengers in conflict with the
law and contrary
to the rights of legitimate taxi owners. This
is a recipe for disaster and tremendous violence in the taxi industry
as we
have often experienced.
[20]
Mr Maliwa submitted that respondent did not show any prejudice in the
event of the Quantum being released immediately.
In fact, he
argued that the Quantum should never have been impounded. In my
view respondent did not have to show any prejudice,
but merely that
its employees acted lawfully. Mr Maliwa also submitted that
respondent’s employees had several options
and should have
relied upon one only. A written notice to the driver, as
issued, should have sufficed without the necessity
of impounding the
Quantum as well. I do not agree. It is not a case of two forms
of punishment as the written notice is directed
at the driver and the
impoundment affects the applicant who was not the driver. The
Traffic Inspector acted fully within
the parameters of the law to
impound the applicant’s vehicle. The legislature
considered the seriousness of relevant
offences and impoundment is a
convenient tool to ensure that illegal taxi operators and taxi owners
are called to book and accept
responsibility.
[21]
Applicant’s driver may still defend the criminal case set down
for 18 March 2019 and plead not guilty. If the charge
is
withdrawn before then or if the driver is acquitted, the Quantum must
be released. If the driver is convicted as charged,
the
impoundment fee will have to be paid, unless the court directs
otherwise. See
section 87
of Act 5 of 2009 and section 99 of
the Free State Act, specifically relied upon by respondent.
[22]
Applicant failed to show that he was unlawfully deprived of his
possession of the Quantum and therefore, he failed to
prove the
second requirement of the mandament van spolie.
VII
CONCLUSION
[23]
In conclusion applicant is not entitled to rely on the mandament van
spolie. Insofar as submissions have been made on behalf
of applicant
to rely on compliance with the three requisites for final interdicts,
applicant failed to prove any of those requirements.
He has no
clear right for the reasons advanced. Insofar as he may not
lawfully use the Quantum for the transport of passengers
for reward,
he failed to prove an injury committed or reasonably apprehended.
He has a satisfactory remedy. In fact
he should have arranged
long ago, if there was no defence, that the fine imposed and the
penalty for the release of the Quantum
be paid and that would have
been the end of the matter. As indicated
supra
,
the criminal case has been set down for hearing on 18 March 2019, but
nothing prevented applicant to have negotiated in good faith
with the
authorities. His legal costs in launching proceedings in the
High Court are far in excess of the penalties imposed.
[24]
I considered awarding costs on a punitive scale as requested by
respondent. However, I understand applicant’s frustration
insofar as he has been prevented to use his vehicle even for lawful
business activities since 6 January 2019. Having said
this,
applicant may count himself fortunate. I decided after careful
consideration to give him the benefit of doubt as to
whether the
proceedings are vexatious. Therefore the usual party and party
costs order shall follow.
VIII
ORDER
[25]
Consequently, the application is dismissed with costs.
_____________
J
P DAFFUE, J
On
behalf of Applicant: Adv S H Maliwa
Instructed
by: S S Nkonyeni Inc
c/o
Maduba Attorneys
BLOEMFONTEIN
On
behalf of Respondents: Adv B S Mene
Instructed
by:
State
Attorney
BLOEMFONTEIN