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[2018] ZANCHC 77
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Visagie t/a Prieska Entertainment Centre v Minister of Safety and Security N.O and Others (1084/2013, 1085/2013) [2018] ZANCHC 77 (26 October 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
DATE OF
HEARING : 15 OCTOBER 2018
DATE
DELIVERED : 26 OCTOBER 2018
CASE
NO:
1084/2013
In
the matter between:
VISAGIE,
DANIEL t/a PRIESKA ENTERTAINMENT
CENTRE
Applicant
and
THE
MINISTER OF SAFETY AND SECURITY
NO
1
st
Respondent
THE
PROVINCIAL COMMISSIONER OF THE SAPS,
NORTHERN
CAPE
NO
2
nd
Respondent
THE
CHAIRPERSON: NORTHERN CAPE GAMBLING
AND
RACING BOARD
NO
3
rd
Respondent
WARRANT
OFFICER DANIELS
NO
4
th
Respondent
THE
STATION COMMANDER, PRIESKA SAPS
NO
5
th
Respondent
AND
CASE
NO:
1085/2013
STEYTLER,
CLYDE SHADLEY t/a KURUMAN ENTERTAINMENT CENTRE
Appellant
And
THE
MINISTER OF SAFETY AND SECURITY
NO
1
st
Respondent
THE
PROVINCIAL COMMISSIONER OF THE SAPS,
NORTHERN
CAPE
NO
2
nd
Respondent
THE
CHAIRPERSON: NORTHERN CAPE GAMBLING AND
RACING
BOARD
3
rd
Respondent
CAPTAIN
LM VOS
NO
4
th
Respondent
THE
STATION COMMANDER, KURUMAN
NO
5
th
Respondent
THE
MAGISTRATE, KURUMAN
NO
6
th
Respondent
Coram:
Tlaletsi
JP
et
Olivier
ADJP
et
Mamosebo J
JUDGMENT
Olivier
ADJP:
INTRODUCTION
[1.]
During July 2013
members of the South African Police Services, armed with search
warrants, searched the premises of Mr D Visagie,
who traded as the
Prieska Entertainment Centre, and the premises of Mr C S Steytler,
trading as Kuruman Entertainment Centre, and
seized various items,
including certain machines. Both Mr Visagie and Mr Steytler
then lodged applications for the setting
aside of the warrants and
for orders that possession of all the seized items be restored.
In both applications the Minister
of Safety and Security, the
Provincial Commissioner of the South African Police Services in the
Northern Cape and the Chairperson
of the Northern Cape Gambling and
Racing Board were cited as, respectively, the first, second and third
respondents. Certain
police officials were also cited as
respondents, and in the Steytler application the Magistrate, Kuruman,
was also cited in his/her
official capacity.
[2.]
The applications were
opposed by only the first, second and third respondents. Both
applications were heard simultaneously
and on 6 September 2013
Williams J set aside the warrants, and in both applications ordered
the respondents “
to
forthwith return and restore possession of the movable goods
which
the applicant may lawfully possess
and
money that was seized … during the execution of the search
warrant …
”
(My
emphasis). As will be seen in what follows the result of the
orders regarding the restoration of possession was that restoration
of the machines was in effect not ordered.
[3.]
In refusing to order
the restoration of the possession of the machines, the court
a
quo
applied
the judgment in
Ngqukumba
v Minister of Safety and Security and Others
[1]
(hereinafter referred to as “
the
SCA
Ngqukumba
judgment
”
),
and held that the machines could not be returned to Steytler and
Visagie as they were gambling machines and as possession thereof
by
Steytler and Visagie would constitute a contravention of the
provisions of section 9(1) of the
National
Gambling
Act
[2]
,
and would constitute a criminal offence in terms of section 82 of
that Act.
[4.]
As will appear from
what follows the
SCA
Ngqukumba
judgment
had overruled that court’s judgment in
Ivanov
v North West Gambling Board and Others
[3]
(hereinafter referred to as “
the
Ivanov
judgment
”
)
on the issue of whether possession could be restored to an applicant
whose continued possession would be illegal At the
time of the
hearing of the applications that are the subject of this appeal the
SCA
Ngqukumba
judgment
was, however, the subject of an application for leave to appeal to
the Constitutional Court, which application had at that
stage not yet
been decided.
[5.]
The present matter
concerns appeals by both Steytler and Visagie against the refusal of
the court
a
quo
to
order the return of the machines. In what follows I will refer
to Steytler and Visagie as “
the
appellants
”
.
The appeal is only opposed by the first and second respondents, who
are at this stage represented by Mr Fourie. Mr
Jagga appeared
as counsel for the appellants.
THE
IVANOV JUDGMENT
[6.]
In the
Ivanov
judgment the Supreme
Court of Appeal held that the legality of the continued possession of
property that had been unlawfully seized
by the police (in that case
gambling machines) was irrelevant for purposes of spoliation, and of
the question whether restoration
of possession thereof should be
ordered.
[7.]
The restoration of the
gambling machines was therefore ordered despite it having been common
cause that the particular applicant
could not legally possess them.
THE
SCA NGQUKUMBA JUDGMENT
[8.]
In the
Ngqukumba
matter the Supreme
Court of Appeal basically held that the rule that possession must be
restored in the case of spoliation, is not
an absolute one. It
was held that, where it was clear that continued possession of an
object would be illegal, the court
would not make an unqualified
order that possession of the object be restored.
[9.]
It was furthermore held
that the
Ivanov
judgment was wrong
insofar as it had come to the contrary conclusion.
[10.]
The Supreme Court of
Appeal consequently dismissed an appeal against the refusal of an
order restoring possession of a vehicle,
on the basis that possession
of the vehicle, even pursuant to a court order, would constitute a
crime.
CONSTITUTIONAL
COURT
[11.]
Leave to appeal to the
Constitutional Court was eventually granted in the
Ngqukumba
matter and the judgment
of that court will in what follows be referred to as “
the
CC
Ngqukumba
judgment
”
.
[12.]
In paragraphs 15 and 21
of its judgment the Constitutional Court drew a distinction between
things that can under no circumstances
be possessed legally and those
that can under certain circumstances be possessed legally. It
then held:
12.1
that it could well be that possession of the former type of objects
would not be restored in the case of spoliation, but that
this issue
was not before the court and did not have to be decided;
12.2
that possession of the latter type of object would be restored in the
case of spoliation, because in such cases an enquiry
would be
necessary to establish whether in the particular circumstances
possession would be illegal, and because such an enquiry
would be
impermissible in spoliation proceedings, as it would constitute an
enquiry “
into
the merits of the lawfulness of the applicant’s possession
”
,
which would be irrelevant for purposes of spoliation proceedings; and
12.3
that a vehicle of which the chassis number has been tampered with, is
an object that can under certain circumstances, and more
particularly
where there is “
lawful
cause
”
[4]
,
be possessed legally, and that the Supreme Court of Appeal had erred
in not recognising this.
[13.]
The Constitutional
Court did, however, not:
13.1
overrule the
ratio
decidendi
in
the
SCA
Ngqukumba
judgment,
at the very least not in respect of objects that could under no
circumstances be possessed legally; or
13.2
confirm the
Ivanov
judgment insofar as it
held that possession of spoliated gambling machines should be ordered
even though the applicant’s possession
thereof would constitute
a crime
[5]
. To the
contrary, the recognition by the Constitutional Court that the return
of objects that may under no circumstances
be possessed legally, may
possibly not be competent, is in direct conflict with the approach
adopted in the
Ivanov
judgment.
[14.]
It appears that the
approach of the Constitutional Court of distinguishing between
objects which can under no circumstances be possessed
legally, on the
one hand, and those that can, on the other hand, was motivated by the
principle that there cannot in spoliation
proceedings be an enquiry
into “
the
merits of the lawfulness of
(an)
applicant’s
possession
”
.
The distinguishing characteristic should then really be the need for
an enquiry. In other words, where an enquiry
would be necessary
to establish whether an applicant could legally possess an object, a
court would in spoliation proceedings have
to order restoration of
possession once it has been established that the applicant had been
in peaceful and undisturbed possession
and that the respondent had
disturbed that possession. On the other hand, where it is
common cause that continued possession
would be illegal, an
unqualified order that possession be restored, would on this
interpretation of the
CC
Ngqukumba
judgment
not be granted.
[15.]
Apart from this the
CC
Ngqukumba
judgment
has in my view, and with respect, also raised other questions:
15.1
Why would the issue of the legality of the continued possession be
relevant where an object is concerned that can under no
circumstances
be possessed legally, but not where an object is concerned that can
under certain circumstances be possessed legally?
To put it
another way, why would the legality of an applicant’s future
possession be relevant when it can be decided without
an enquiry, but
not when an enquiry is necessary?
15.2
Has the Constitutional Court not, in arriving at its findings,
“
equated
(the
issue of legality)
with
the common-law concept of
justa
causa possessionis
[6]
?
It is easy to understand that there cannot in spoliation proceedings
be room for an enquiry into the latter, because that
would defeat the
purpose of the remedy,
viz
to prevent self-help by
ordering restoration of possession and obliging the parties to
subject the issue of the lawfulness of possession
to a court of law.
There is no place in spoliation proceedings for an enquiry to resolve
“
competing
claims to possession
”
[7]
.
However, the concept of legality introduces “
another
dimension
”
[8]
in the case of an issue like the present,
viz
that
of legality, as opposed to lawfulness in the general sense of the
word.
15.3
On the approach of the Constitutional Court a court would, simply
because there is (or can be) a dispute about whether an applicant
can
legally possess an object, ignore that dispute, as well as the
possibility that continued possession could constitute a crime,
and
order restoration of possession. This is difficult to
understand, because such a dispute would not revolve around the
issue
of whether the applicant could lawfully possess the object, in the
general sense of the word, but would in fact be about
whether the
applicant could legally possess the object (Even if he or she has a
perfectly good
justa
causa possessionis,
in
the general sense, like ownership). It would in other words not
be a dispute about “
competing
claims to possession
”
.
15.4
The fact that possession would in the case of spoliation be restored
to a thief
[9]
, does not in my
view assist in the present circumstances. Possession of a
stolen object by a thief pursuant to a court order
would not
constitute a crime. The fact of the order would enable the
thief to provide a “
satisfactory
account
”
for
his/her possession of the stolen property
[10]
.
15.5
The Constitutional Court has in effect accepted that there may be
“
lawful
cause
”
for
the continued possession of a vehicle as envisaged in the provisions
of section 68(6)(b) of the
National
Road Traffic Act
[11]
.
This was done without discussing or interpreting those provisions,
and also without dealing with the fact that they have
on more than
one occasion been interpreted to mean that the phrase “
lawful
cause
”
in
that section could only provide an explanation for past possession
(On a charge of having contravened the provisions of that
sub-section), but could never provide a justification for the
continued possession of such a vehicle
[12]
.
On the interpretation in those cases of the provisions of that
section the vehicle concerned in the matter before the Constitutional
Court would, ironically, indeed have been an object of which the
continued possession could under no circumstances be legal.
THE
JUDGMENT OF THE COURT
A
QUO
[16.]
The court
a
quo
could
not, of course, apply the
SCA
Ngqukumba
judgment
without qualification, because the legislation regulating the
continued possession by the applicants in the two matters
differed.
If the court
a
quo
was
bound to follow the
SCA
Ngqukumba
judgment,
it would therefore have been bound to only the principle that
possession was not to be restored when such possession would
be
illegal.
[17.]
On the other hand, if
the court
a
quo
had
to follow the
Ivanov
judgment, the return of
the machines would have had to be ordered, regardless of whether
continued possession thereof by the appellants
would be illegal.
[18.]
Before us Mr Jagga
referred to section 18(1) of the
Superior
Courts Act
[13]
.
The relevant provisions of that section read as follows:
“……
..
,
and unless the court under exceptional circumstances orders
otherwise, the
operation and execution
of a decision which is the subject of
an application for leave to appeal or of an appeal, is suspended
pending the decision of the
application or appeal.
”
(My emphasis)
[19.]
Subsection (5) of
section 18 goes on to provide that “
a
decision becomes the subject of an application for leave to appeal or
of an appeal, as soon as an application for leave to appeal
or a
notice of appeal is lodged with the registrar in terms of the rules
”
.
[20.]
Mr Jagga argued that
the suspension of the “
operation
and execution
”
of
a decision would include the suspension of “
its
effect as a binding judgment”
for
purposes of the
stare
decisis
doctrine
and that, pending the finalisation of the appeal by the
Constitutional Court, the court
a
quo
would
have been obliged to follow the
Ivanov
judgment.
[21.]
This argument was also
raised in the court
a
quo
.
It appears, from the judgment of the court
a
quo
and
from the heads of argument at that stage of Mr Jagga
[14]
,
that Mr Jagga had at that stage based his argument on the common law
principles regarding the suspension of judgments in circumstances
like these, and that both he and Williams J had approached this issue
on the premise that, because Uniform Rule 49(11) did not
apply to
judgments in respect of which the Constitutional Court would be
approached for leave to appeal, such cases had to be dealt
with on
the basis of the common law principles applicable in circumstances
where leave to appeal is sought.
[22.]
Williams J then went on
to hold, with reference to
Sirioupoulas
v Tzerefos
[15]
,
that it was in terms of the common law not the filing of an
application for leave to appeal that suspended judgments and orders,
but indeed the noting of the appeal, and that the
SCA
Ngqukumba
judgment
would therefore only have been suspended once leave to appeal had
been granted and an appeal had been noted.
[23.]
It was not debated
before us whether this would have been the correct approach at the
time of the hearing of the applications on
2 August 2013, nor
was it debated whether it would still have been the correct approach
by the time that the judgment of the
court
a
quo
was
delivered on 6 September 2013. By then the
Superior
Courts Act
,
including the provisions of section 18(1), had already come into
operation
[16]
. In view
of what follows it is, however, not necessary to decide this now.
[24.]
Williams J in any event
also held, with reference to
Zweni
v Minister of Law and Order
[17]
,
that such a “
suspension
”
would only have applied
to the “
pronouncement
of the disposition
”
,
and not to the “
ratio
decidendi or reasons
”
for
that pronouncement. I must say that I find this reasoning
persuasive, but in view of what follows it is once again not
necessary to decide this, because it will not make any difference to
the outcome of this appeal.
[25.]
In paragraph 5 of the
judgment in the court
a
quo
the
following was stated:
“
The
issue in both applications relate solely to the restoration of
possession of the gambling machines to the applicants who do
not have
the requisite licenses or authorisation to possess such gambling
machines. The possession of the gambling machines
in these
circumstances is a contravention of
section 9(1)
of the
National
Gambling Act, No 7 of 2004
and constitute an offence under
section 82
of the Act.
[26.]
It appears from this
that Williams J considered the only issue and dispute to be whether
the return of the machines to the appellants
should be ordered. The
contents of this paragraph contain no mention of it being in dispute
that they were indeed gambling machines
and that possession thereof
by the appellants would indeed be illegal
[18]
.
[27.]
The problem is that, on
the papers in the two applications, it was indeed disputed that the
machines were gambling machines as envisaged
in
section 1
of that
Act, and it was the case of the appellants that, even if they were
gambling machines, they had been properly registered
in terms of the
dispensation under the repealed
Northern
Cape Gambling and Racing Act
[19]
,
which according to the appellants had resulted in them still having
been in legal possession of the machines at the time
that they were
seized by the police.
[28.]
These averments were
disputed by the deponents for the opposing respondents, and that in
turn was responded to by the appellants
in their replying
affidavits. The judgment of the court
a
quo
is,
however, silent on the conflicting contentions in this regard.
There is no indication at all that they were considered
and decided
upon by the court
a
quo
.
In fact, the mention of only the one issue in paragraph 5 of the
judgment suggests that they had not.
[29.]
Had those contentions
been considered and decided, that would probably, on what has since
been held by the Constitutional Court,
have amounted to an enquiry
which the court
a
quo
should
not have entertained, but that is not necessary to decide now.
[30.]
Mr Jagga assured us
that it had at no stage been conceded that the appellants could not
legally possess the machines. Mr Fourie,
counsel for the first
and second respondents in the appeal, was not involved in the hearing
of the applications.
[31.]
In my view the contents
of paragraph 5 can in no way be interpreted as constituting a finding
on this issue, let alone reasons for
such a finding. On what is
before us, and on what has been conveyed to us regarding the
proceedings in the court
a
quo
,
it appears that Williams J had, at least when delivering her
judgment, laboured under the mistaken impression that it was common
cause that the machines were gambling machines and that continued
possession thereof by the appellants would constitute a crime.
[32.]
This would mean that
there would, even on the
ratio
decidendi
in
the
SCA
Ngqukumba
judgment,
not have been any basis upon which restoration of possession of the
machines could be refused.
[33.]
Had Williams J, on the
other hand, followed the
Ivanov
judgment, she would
also have had to order the return of the machines, regardless of
whether or not the appellants could legally
be in possession thereof.
[34.]
It follows that, on
both scenarios, the refusal to order the return the machines would
have been wrong and that the appeals against
this must succeed.
There is no reason why the costs of the appeals should not follow
such result.
[35.]
In the premises the
following orders are made:
IN
BOTH CASES 1084/13 AND 1085/13 THE APPEALS ARE UPHELD WITH COSTS AND
PARAGRAPH b) OF THE ORDERS OF THE COURT A QUO IS IN BOTH
CASES
AMENDED TO DELETE THE WORDS “WHICH THE APPLICANT MAY LAWFULLY
POSSESS”, AND TO READ AS FOLLOWS:
“
The
respondents are ordered to forthwith return and restore possession of
the movable goods and money that were seized at the above-mentioned
business premises during the execution of the search warrant referred
to above.”
C
J OLIVIER
ACTING
DEPUTY JUDGE PRESIDENT
NORTHERN
CAPE DIVISION
I
concur.
P
L TLALETSI
JUDGE
PRESIDENT
NORTHERN
CAPE DIVISION
I
concur.
M
MAMOSEBO
JUDGE
NORTHERN
CAPE DIVISION
For the
appellants:
ADV. N JAGGA
(Instructed by
Van
De Wall Inc.
)
For the 1
st
and
2
nd
ADV. J A FOURIE
respondents:
(Instructed
by the
Office
of the State Attorney
)
[1]
2013 (2) SACR 381 (SCA)
[2]
7 of 2004
[3]
2012 (2) SACR 408
(SCA) (Also reported at 2012 (6) SA 67 (SCA))
[4]
In terms of section 68(6)(b) of the
National Road Traffic Act
,
93 of 1996, “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”.
(My
emphasis)
[5]
In the “
Cases cited
” section of the report of the
CC Ngqukumba judgment it is noted that the
Ivanov
judgment
was approved by that court. This is incorrect. The only
reference in the
CC Ngqukumba
judgment to the
Ivanov
judgment is in footnote 15 thereof, where it was pointed out that
the
Ivanov
judgment had been overruled in the
SCA
Ngqukumba
judgment. Nowhere in its judgment did the
Constitutional Court expressly, or even impliedly, prefer the
approach adopted
in the
Ivanov
judgment over the approach
adopted in the
SCA Ngqukumba
judgment, at the very least not
as far as objects are concerned that could under no circumstances be
possessed legally..
[6]
Marvanic Development (Pty) Ltd and Another v Minister of Safety
and Security and Another
2007 (3) SA 159
(SCA) para [10]
[7]
The
SCA Ngqukumba
judgment, para [14]
[8]
Ibid
, para [2]
[9]
Compare the
Ivanov
judgment para [19]
[10]
See section 36 of
the
General Law Amendment Act,
62 of 1955.
[11]
See footnote 4 above.
[12]
See
Minister van Veiligheid & Securiteit v Delport NO en ‘n
ander
[2003] JOL 11900
(NC);
Marvanic Development (Pty) Ltd
and Another v Minister of Safety and Security and Another
,
supra
;
Basie Motors BK t/a Boulevard Motors v Minister of
Safety and Security
2006 JDR 0251 (SCA);
SA Truck Bodies
(Pty) Ltd v The Minister of Safety and Security
2010 JDR 0850
(NCK);
Pakule v Minister of Safety and Security and Another
;
Tafeni v Minister of Safety and Security and Another
2011 (2)
SACR 358 (SCA)
[13]
10 of 2013
[14]
Who had also then represented the appellants.
[15]
1979 (3) SA 1197
(O) at 1202 G
[16]
On 23 August 2013.
[17]
1993 (1) SA 523
(A) at 532D
[18]
The only other issue was whether the warrants were invalid, but that
was apparently conceded by the respondents.
[19]
5 of 1996