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[2019] ZAFSHC 142
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Khoeli v Minister of Police and Others (739/2018) [2019] ZAFSHC 142 (26 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Application No:
739/2018
In
the matter between:
MAPHALE
ALBERT
KHOELI
Applicant
and
MINISTER OF
POLICE
First
Respondent
CAPTAIN
KGOLANYANE
Second
Respondent
THE REGISTRAR OF
ANIMAL
Third
Respondent
IDENTIFICATION
CORAM: MBHELE, J et
MHLAMBI, J
JUDGMENT BY: MBHELE, J
HEARD ON: 27 MAY 2019
DELIVERED ON: 26
AUGUST 2019
[1]
This is a review application in which the applicant is seeking an
order in the following terms (as set out in the Notice of
Motion):
i.
Reviewing
and/or declaring as irregular, reviewable and/or unlawful the
decision and related action by the Second Respondent and/or
other
employees of the First Respondents on or about 30 May 2017 and/or 7
November 2017, respectively, pertaining to the declaration
of
forfeiture to the State and subsequent sale on or about 7 November
2017 of a total number of 42 (four Heifers, 2 (two) cows
and 2 (two)
calves, all of which belonged to the Applicant, and in that regard
bore the animal identification mark registered to
him.
ii.
Flowing
from the above order, setting aside the Second Respondent’s
abovementioned decision to declare the Applicant’s
cattle
forfeited to the State, alternatively declaring that such decision
was contrary to the provisions of
section 34
of the
Criminal
Procedure Act 51 of 1977
, as amended (hereinafter “the CPA”),
and thus unlawful.
Declaring or making an
order that the Applicant suffered loss or damages as a result of the
abovementioned unlawful and/or irregular
decision and subsequent
action by or at the behest of the Second Respondent and/or other
employees of the First Respondent.
iii.
Flowing
from the orders under 1,2 and 3 above, ordering the First, Second
and/or Third Respondent to pay to the Applicant an amount
of R
286 900-00, being the total sum for which the 42 (forty two)
cattle belonging to the Applicant were sold by public auction
on or
about 7 November 2017.
iv.
In respect
of 2(two) additional cattle, out of an initial total of 44 (forty
four) cattle, which were seized from the Applicant’s
possession
or control on or about 15 May 2017 by police officials in the employ
of the First Respondent, pursuant to the provisions
of
section 20
and
related sections of the CPA, directing the First and Second
Respondent and/or any other employees or agent of the First
Respondent
under whose control or possession those additional 2 (two)
cattle are, as at date hereof, to restore possession thereof to the
Applicant, or release them to him.
v.
Alternative
to prayer 5 above, and in the event of the said additional 2 (two)
cattle already having been disposed of as at the
date hereof,
ordering the First and/or Second Respondent to pay to the
Applicant an amount of R14 488-24, being the
average price for
which 2 (two) oxen belonging to the Applicant were sold by
public auction on or about 7 November 2017
vi.
The above
orders, as applicable, to be complied with within 14 (fourteen) days
of the granting thereof.
vii.
In the
event of the Court finding that the application cannot properly be
decided on affidavit, due to (a) material dispute(s) of
fact(s)
arising in the papers, in respect of the question of liability and/or
quantum, directing that oral evidence be heard on
the specified
issues with a view to resolving any such dispute(s) of fact, or refer
the matter to trial with appropriate directions
as to pleadings or
definition of issues, or otherwise, in accordance with Rule 6(5)(g)
of the Uniform Rules of Court.
viii.
First
Respondent to pay the costs of the application.
ix.
Granting
the Applicant such further and/or alternative relief as the Court may
determine.
BACKGROUND
[2]
The applicant is a citizen of Lesotho, arrested on 15 May 2017 and
charged for contravention of the provisions section 32 (1)
(m) (iii)
of the Animal Diseases Act 35 of 1984 (The Act). 44 cattle were
seized from the applicant upon his arrest. On 17
May he paid an
admission of guilt fine for contravention of section 32 (1) (m) (iii)
of the Act.
[3]
On 30 May 2017 the South African Police Service (SAPS) through the
second respondent took a decision to declare all 44 cattle
found
forfeited to the state. An attempt to inform the applicant of the
decision was made through calling a cell phone number that
is unknown
to the applicant.
[4]
The applicant obtained an order at the Magistrate’s Court on 31
May 2017 to have the cattle returned to him and the first
respondent
successfully applied to this Court for the review of the Magistrate’s
order on 06 November 2017.
[5]
On 07 November 2017, 42 of the 44 cattle were sold by the SAPS for an
amount of R286 900-00 after an indemnity was obtained
from the
third respondent. It is alleged in the respondents’ affidavit
that 2 of the cattle died while in custody of the
SAPS. The cattle
were, before their disposal, held at the Moreson detention facility
of the SAPS in the district of Ladybrand.
[6]
The applicant was not notified of the decision by the first
respondent to forfeit the cattle and the subsequent sale thereof.
The
applicant was further not informed that 2 of the cattle died in
police custody before the sale. This information came to his
attention for the first time when the answering affidavit was filed
on behalf of the respondents.
[7]
Mr Lechwano, on behalf of the applicant, submitted that the decision
by the police to forfeit the applicant’s cattle and
the
subsequent sale was unlawful and procedurally unfair. He contended
further that the action was taken arbitrarily and/or capriciously.
He
further contended that disposing of the applicant’s cattle
amounted to punishing him twice.
[8]
Ms. Wright, on behalf of the respondents, contended that the first
respondent was within its right to dispose of the cattle
in question
without any notification to the applicant. She submitted further that
the decision to dispose of the cattle was taken
because there was no
one who could lawfully possess them. She opined that due to the
nature of the offence the applicant admitted
guilt to, releasing the
cattle to the applicant would have resulted in the applicant
furthering the commission of the very offence
he admitted guilt to.
In her view, restoring the cattle to the applicant would have
required him to convey the cattle through the
Republic back to
Lesotho. She argued that the provisions of section 32 (2) of
the CPA placed no duty on the respondents to
inform the applicant of
the decision to forfeit the cattle.
APPLICABLE
LEGAL PRINCIPLES
[9] Section 32 of the
criminal Procedure Act 51 of 1977 (CPA) provides that:
“
(1)
If criminal proceedings are instituted in connection with any article
referred to in section 30
(c)
and
the accused admits his guilt in accordance with the provisions of
section 57, the article shall be returned to the person
from whom it
was seized, if such person may lawfully possess such article, or, if
such person may not lawfully possess such article,
to the person who
may lawfully possess such article, or, if such person may not
lawfully possess such article, to the person who
may lawfully possess
it, whereupon the provisions of section 31 (2) shall
apply
with reference to any such person.
(2)
If no person may lawfully possess such article or if the police
official charged with the investigation reasonably does not
know of
any person who may lawfully possess such article, the article shall
be forfeited to the State.”
[10]
Section 31(2) reads as follows:
“
(2)
The person who may lawfully possess the article in question shall be
notified by registered post at his last-known address that
he may
take possession of the article and if such person fails to take
delivery of the article within thirty days from the date
of such
notification, the article shall be forfeited to the State.”
[11]
It is clear from the above that the items seized should be returned
to the person from whom they were taken provided that he
may possess
them lawfully. They can only be forfeited to the state if there is no
person who may lawfully possess them and the
police officer in charge
of the investigation reasonably does not know of any person who may
lawfully possess them. The cattle
had a brand identification mark of
the applicant and the applicant provided the police upon his arrest
of documentation proving
possession. Possession of the cattle was
never an issue even at the time of their seizure. The issue was the
failure to produce
a permit authorising the applicant to import
cattle from Lesotho into the Republic of South Africa. Therefore, the
applicant’s
mere possession of the cattle would not have been
unlawful. He was the lawful possessor. It follows that the first
respondent should
have invoked the provisions of section 32 (1) read
with section 31 (2) of the CPA which required that the applicant be
given 30
days’ notice before his cattle could be forfeited.
[12]
Section 17 (2) and (2) (B) (a) of the Animal Diseases Act 35 of 1984
provides as follows:
“
(2)
The director shall without delay deliver anything seized by him under
subsection (1)
(a)
to
a police official as defined in
section
1 (1)
of
the Criminal Procedure Act, 1977
(
Act
51 of 1977
),
and it shall be disposed of in accordance with the applicable
provisions of that Act relating to seizures of objects by the State
(2B)
(a)
Notwithstanding
the provisions of subsection (2), any animal or thing which has been
seized in terms of subsection (1)
(a)
on
the ground of no permit having been obtained for the importation
thereof, together with any progeny or product thereof,
may, where the
director is of the opinion that a permit would have been issued if an
application therefor had been made, be returned
to the person who has
imported the animal or thing to be removed at his own expense within
the period determined by the director,
from the Republic.”
[13]
The Act is not punitive in its application. It does allow the
director, who is a veterinarian in terms of section 2, to restore
the
animals seized to the person who imported them where the director is
of the opinion that a permit would have been issued if
an application
therefor had been made. This shows that restoring the seized items to
the original possessor does not necessarily
create a double offence.
It does make provision for the seized animals to be returned to their
country of origin at the expense
of the person from whom they were
seized.
[14]
The Act is aimed at controlling animal diseases and parasites,
providing measures to promote animal health and for matters
connected
therewith. It is not apparent from the papers that the director
was at any stage involved with these cattle, from
their time of
seizure until they were disposed of. It is not clear how the
purpose of the Act was achieved in the process
of selling the cattle
to a farmer within this country.
[15]
It is clear that sections 32 (1) and 31 (2) of the CPA seek to
prevent arbitrariness on the part of the police. The police
failed to
notify the applicant of their decision to forfeit the cattle as
required by the CPA. The argument by the respondents
that the
applicant could not have been the lawful possessor cannot hold centre
in view of the provisions of both the Act and the
CPA.
[16]
In
Electronic Media Network Limited and Others v E. TV PTY
(LIMITED) and Others CCT 140/16,141/16 and 145/16
at para [98]
the following was stated:
“
Hence, if accountability,
responsiveness and openness are fundamental to our Constitution, then
a consultation process that lacks
those attributes needs to be
explained. Where there is no explanation there is no reason, and
where there is no reason there is
arbitrariness and irrationality.
Neither rocket science nor judicial conspiracy are needed to
understand the simplicity, logic
and, yes, moral suasion of it. We
see below how applying these precepts in practice should upend what
happened here.”
[17]
It is so that accountability and transparency are an indispensable
ingredient in the day to day functioning of the organs of
state; the
absence of which strips the daily business of such organs of their
legitimacy. The police must respect the rule of law
and uphold law
and order.
[18]
In
Ngqukumba
v Minister of Safety and Security and Others (CCT 87/13)
[2014] ZACC
14
;
2014 (2) SACR 325
(CC)
it
was held as follows:
“
[19]
This reading of the two sections does not unduly thwart effective
policing. Rather, it enjoins police to act not only in accordance
with the
Criminal Procedure Act but
with the Constitution as well...
[20]
Without doubt the police play an important role in combating and
preventing crime, conducting criminal investigations, maintaining
public order, protecting and securing the inhabitants of South Africa
and their property, and upholding and enforcing the law.
Their
endeavours in this regard should not be interfered with unduly.
However, they, like everyone else, are subject to the Constitution,
in particular — for present purposes — the rule of law. A
failure to hold them to the Constitution strictly may have
negative
consequences: it may encourage them to be a law unto themselves...”
[19]
I am unable to say that the police acted within the prescripts of the
law when they took a decision to forfeit the cattle to
the state and
the subsequent sale thereof. Their actions were arbitrary and against
the law and thus cannot be countenanced by
this court. The
application for review must succeed. Costs must follow the event.
[20]
The following order is made:
Order:
1.
The
decision by the first respondent on 30 May 2016 declaring 44 cattle,
bearing identification marks of the applicant and forfeited
to the
state, is declared unlawful and set aside.
2.
The
first respondent to pay the costs of this application.
_____________
NM
MBHELE, J
I
concur
_____________
JJ
MHLAMBI, J
On
behalf of the Applicant: B Monyamani
Instructed
by: MONYAMANI & NGCANGISO INC.
BLOEMFONTEIN
On
behalf of the Respondents: J.H. Engelbrecht
BLOEMFONTEIN