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[2019] ZAECMHC 7
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Nombewu v Minister of Police, RSA and Others (254/2019) [2019] ZAECMHC 7 (26 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, MTHATHA
CASE
NO:
254/2019
Date
heard
:
08 February 2019
Date
delivered
:
26 February 2019
In
the matter between:
YANDISA
NOMBEWU
Applicant
and
THE
MINISTER OF POLICE, RSA
First
Respondent
THE
STATION COMMANDER, MADEIRA POLICE
STATION
Second
Respondent
SQ
RISK SA
Third
Respondent
JUDGMENT
LOWE,
J
:
INTRODUCTION
[1]
Applicant brought an urgent application essentially for the return by
First, Second and Third Respondents to Applicant of Toyota Quantum
vehicle JDN361EC, with ancillary relief. Costs were sought
against all Respondents on the Attorney Client scale.
[2]
The matter was opposed, and affidavits filed by all to the stage of a
complete set of papers.
[3]
First and Second Respondents sought dismissal of the Application with
Attorney Client costs, whilst Third Respondent pointed out that there
was no need to have joined it in the Application, let alone
seeking
merits relief against it and a costs order, and in the result and
accordingly sought the dismissal of the relief sought
against it with
Attorney Client costs.
THE
RELEVANT FACTS ON THE CORRECT APPROACH
[4]
As to the approach to the affidavits – the papers being
complete
and the relief sought thus being final relief – the
following is the position.
[5]
Motion proceedings, unless concerned with interim relief – are
about
the resolution of legal issues based on common case facts.
Save in special circumstances, and the facts here do not raise
special circumstances, such proceedings cannot resolve factual
disputes on issues, as they are not designed to determine
probabilities.
As set out in the
Plascon-Evans
rule
if disputes of fact arise on the affidavits a final order can only be
granted if the facts, averred by Applicant, which have
been admitted
by Respondent, together with the facts alleged by Respondents,
justify such relief.
[6]
The
position may be different if Respondents’ versions consist of
bald or uncreditworthy denials, raises fictitious disputes
of fact or
are implausible, farfetched or clearly untenable.
[1]
[7]
The
question of onus does not arise in motion proceedings and the
position above pertains regardless of where the evidential onus
lies.
[2]
[8]
Finally the
more serious the allegation (or its consequence) the stronger must be
the evidence before a Court will find the allegations
established.
[3]
[9]
Applying the above to this matter, the fundamental facts established
on
the papers are the following:
[9.1]
At all times relevant, until seized by First and Second Respondents,
motor vehicle Toyota Quantum
JDN361EC (the vehicle) was in
Applicant’s possession and driven by his employee driver Mr L
Ntongana.
[9.2]
On 17 January 2019 the vehicle was seized by First Respondent and
“
impounded”
because its tracking device was in
fact one associated with a different vehicle HLL932EC which was
reported as a stolen vehicle.
[9.3]
The vehicle’s engine number belonged to a different vehicle.
Vehicle HLL932EC was subject
to a police investigation docket
CAS91/01/2019.
[9.4]
The body of the vehicle belonged to another vehicle and had been “
cut
and joined”
(this only discovered on 31 January 2019 and
thus irrelevant to the seizure).
[9.5]
The vehicle was identified by Third Respondent, an agent of
“
Cartrack”,
as stolen and was located by Third
Respondent which reported this to the police and who (the police)
then stopped the vehicle in
York Road, Mthatha and told the driver to
go to Madeira Police Station where the police examined same and
informed the driver that
it would be impounded – as a stolen
vehicle.
[9.6]
The search of the vehicle and its seizure were without consent.
[9.7]
The Applicant refused to produce the original papers – this
irrelevant to the seizure however.
THE
LEGAL POSITION
[10]
This is a Spoliation Application. There are two issues, being
whether the prerequisites
of spoliation have been satisfied on the
facts above, and associated with this whether the impounding was
unlawful.
[11]
A spoliation order is a final order. Spoliation takes place
when a person in possession
is wrongfully deprived of possession of
certain property. There must be the holding of possession by
Applicant, with the intention
of securing a benefit, and the
deprivation thereof by self help (as opposed to a court order),
consent or a statutory right to
deprive the Applicant of possession.
That is peaceable possession and a wrongful deprivation.
[12]
The
question as to whether the police may retain a vehicle unlawfully
seized by virtue of Section 68(6)(b) of the National Road
Traffic Act
93 of 1996 (possession without lawful cause of a vehicle whose
chassis and engine numbers have been mutilated or falsified)
was
answered in the negative by the Constitutional Court in the decision
Ngqukumba
v Minister of Safety & Security & Others
[4]
,
reversing
the decision of the SCA.
[13]
In summary the said decision sets out that:
[13.1] The
Mandament van Spolie is applicable to the return of vehicles by the
police if unlawfully seized even if engine
and chassis numbers have
been tampered with.
[13.2] The aim is
the restoration, before all else, of unlawfully deprived possession,
as a motor vehicle relevant might be
perfectly lawfully possessed
even with tampered identification if there is lawful cause for such
possession.
[13.3] The
lawfulness or otherwise of possession post-dates restoration and
would have to be established at a subsequent hearing.
[13.4] In respect
of the said vehicle all that is to be considered, at the spoliation
stage, is possession and unlawful deprivation.
[13.5] If the above
is established, restoration is ordered even to a thief or robber –
as it is only after self-help
is purged that the lawfulness of
possession becomes relevant.
[14]
Clearly in this matter there was possession in the sense required and
the vehicle must
be returned unless it was lawfully seized – in
this case subject to the Statutory entitlement to seize.
[15]
As set out
in
Magobodi
v Minister of Safety and Security and Another
[5]
:
“
[8]
Searches and seizures must, in general, be carried out in terms of
legislation which sets out the power to search and seize.
The
legislation that we are concerned with in this matter is the Criminal
Procedure Act 51 of 1977 (the Act), in particular,
chapter 2
thereof. Section 20 of the Act provides that the State may, in
accordance with the provisions of ch 2, seize any article
which is
concerned in or on reasonable grounds is believed to be concerned in
the commission of an offence, or which may afford
evidence of the
commission or suspected commission of an offence, or which is
intended to be used in or is on reasonable grounds
believed to be
intended to be used in the commission of an offence.
Section
21 of the Act provides inter alia that an article referred to in s 20
shall, subject to the provisions of ss 22, 24 and
25, be seized only
by virtue of a search warrant issued by a magistrate or justice.
Section 22 of the Act provides as follows:
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 such 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
(ii)
that the delay in obtaining such warrant would defeat the object
of
the search.
Sections
24 and 25 of the Act are not relevant to this matter.
[9]
The issue of a search warrant provides, in my view, the best
safeguard to regulate search and seizure. The issue of a search
warrant involves the prior authorisation by, usually, a magistrate
acting in his or her judicial capacity on evidence given on
oath
which must satisfy him or her that the policeman seeking the warrant
has reasonable grounds for suspecting that an offence
has been
committed. See
SA Association of
Personal Injury Lawyers v Heath and Others
2000 (10) BCLR 1131
(T).
[10]
In this matter there is no such safeguard and it is clear from
Inspector Matwa's affidavit that no magistrate or justice acting
judicially would have issued a search warrant in respect of the
vehicle. This is so because when they approached the vehicle neither
Inspector Matwa nor Inspector Msizi had any knowledge, nor did they
on reasonable grounds believe, that the vehicle was concerned
in
the commission or suspected commission of an offence, or that it may
afford evidence of the commission or suspected commission
of an
offence, or that it was intended to be used in the commission of an
offence. They were merely going down the street from
one parked
vehicle to another asking for permission to search the vehicle
by inspecting the engine. They were, to put it crudely,
on a fishing
expedition.”
[16]
In
Mnyungula
v Minister of Safety and Security and Others
[6]
the following was said:
“
[5]
It is common cause that the third respondent, when he seized the
vehicle, purportedly did so in terms of ss 20 and 22 of
the Criminal
Procedure Act 51 of 1977 (the Act).
[6]
In terms of s 20 of the Act, the State may seize anything (termed an
'article'),
inter alia
,
'which is concerned in or
on reasonable grounds believed to be concerned in the commission or
suspected commission of an offence'
or
'which
may afford evidence of the commission or suspected commission of an
offence'.
[7] Section 21 of the
Act, however, requires the seizure to be effected by virtue of a
search warrant subject to the provisions
of ss 22, 24 and 25 of the
Act. Only s 22 is relevant in this matter and that is to the effect
that the police official may only
seize any article referred to in s
20, without a warrant:
'(a)
if the person concerned consents to the
search for and 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 para
(a)
of
s 21(1) if he applies for such warrant; and
(ii)
that the delay in obtaining such warrant would defeat the object of
the search'.
[8]
Section 20 of the Act was considered in many cases by the courts. In
Ndabeni v Minister of Law and Order and
Another
1984 (3) SA 500
(D) Didcott J
stated the following at 511D - E:
'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:
''There
can only be reasonable cause to believe . . . where, considered
objectively, there are reasonable grounds for the belief.
. . . (I)t
cannot be said that an officer has reasonable cause to believe . . .
merely because he believes he has reasonable cause
to believe.'''
[9]
The quotation referred to is from the judgment by Milne J, as he then
was, in
Watson v Commissioner of Customs
and
F
Excise
1960 (3) SA 212
(N).
[10]
In the unreported case of
Sigwebedlana v
Minister of Police
, case No 27/94 in
this Division, Davies AJ, as he then was, expressed his agreement
with the test set out in the
Watson
case
supra
.
In the same case he said the following:
'In
my view the fact that an article illegally seized is a potential or
indeed an actual exhibit does not mean that the owner cannot
get it
back.'
[11]
This aspect was also considered in this Division in the unreported
case of
Hiya v Minister of Safety and
Security and Others
, case No 506/99, a
Full Bench decision, wherein the seizure of a vehicle was set
aside. In the
Dyani
case the question of whether there was consent to the seizure was
referred for the hearing of oral evidence.
[12]
In interpreting
s 20
and
s 22
it is clear that the
onus
is on the police to prove, objectively viewed, the existence of ample
facts upon which the police base the reasonable belief,
which
facts must exist at the time when the police acted without a warrant,
and not only at a later stage.
[13]
I now turn to the facts of the case before me.
[14]
It is common cause that the applicant did not consent to the search
and the seizure of the vehicle.”
[17]
The
question then is whether on the relevant facts referred to above the
deprivation was lawful in terms of
Section 20
–
22
of the
Criminal Procedure Act. Put
otherwise in the absence of consent
the question is whether reasonable grounds existed for the
infringement of the right to privacy
– there being a
constitutional duty to critically regard search and seizure to ensure
it was lawfully sanctioned, reasonable
and justifiable.
[7]
[18]
Whether reasonable grounds as required in
Section 22(b)
of the
Criminal Procedure Act were
present is an objective question on all
relevant facts before the Court – that is at the time of
seizing without warrant.
[19]
In
Mbutuma
v The Mec for Safety and Security of the Eastern Province
[8]
Madlanga J (as he then was) held that if a vehicle was seized in
terms of
section 22(b)
of the
Criminal Procedure Act, after
an
inspection revealed falsified engine and chassis numbers, this was
grounds for a reasonable belief that the vehicle was stolen
affording
evidence of the commission or suspected commission of theft. I
agree entirely with this view.
[20]
In this matter the vehicle clearly had fitted to it the tracker of a
vehicle that had been
stolen; it also had engine numbers of a
different and stolen vehicle, HLL932EC.
[21]
In my view this, viewed objectively, gave cause for a reasonable
belief that not only was
the vehicle stolen but also afforded
evidence of the commission or suspected commission of theft.
[22]
In the result and in these circumstances the seizure was a lawful
seizure in terms of
Section 20
–
22
of the
Criminal Procedure
Act, and
the Application must fail with costs.
[23]
I should say that I am in full agreement with Third Respondent that
its joinder, on the
basis of direct relief and costs being sought
against it, was highly inappropriate and puzzling to say the least.
[24]
Having regard to the failure of the Application the only issue
remaining is the scale of
costs. In my view, however, despite
the above, there is no basis set out for attorney and client costs in
respect of any
of Respondents and such punitive order is not
warranted.
ORDER
1.
The Application is dismissed.
2.
The Applicant is to pay First, Second and Third Respondents’
costs.
_________________________
M.J.
LOWE
JUDGE
OF THE HIGH COURT
Obo
the Applicant
:
Mr Malingwa
Instructed
by
:
S. S. Nkonyeni
Incorporated, Mthatha
Obo
the 1
st
& 2
nd
Respondents
: Mr Ngandela
Instructed
by
:
The State Attorney, Mthatha
Obo
the 3
rd
Respondent
:
Mr Botma
Instructed
by
:
J.A. Le Roux Attorneys, Mthatha
[1]
Thint
(Pty) Ltd v National Director of Public Prosecutions & Others
[2008] ZACC 13
;
2008
(2) SACR 421
(CC);
National
Director of Public Prosecutions v Zuma
2009
(1) SACR 361
(SCA) [26].
[2]
Ngqumba
en 'n Ander v Staatspresident en Andere; Damons NO en Andere v
Staatspresident en Andere; Jooste v Staatspresident en
Andere
1988 (4) SA 224
(A);
Zuma
supra
[27].
[3]
Zuma
supra
[27].
[4]
2014 (5) SA 112 (CC).
[5]
2009 (1) SACR 355 (TkHC) 359
[6]
2004 (1) SACR 219
(TkHC) 221
[7]
Magobodi
(supra)
[7].
[8]
1998 (1) SACR 367
(Tk)