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[2018] ZAECMHC 49
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Tsegeya v Minister of Police and Another (2746/2018) [2018] ZAECMHC 49 (21 August 2018)

IN THE HIGH COURT
OF SOUTH AFRICA
EASTERN CAPE
LOCAL DIVISION: MTHATHA
CASE
NO: 2746/2018
BATABO
TSEGEYA
Applicant
and
MINISTER OF
POLICE
1
st
Respondent
THE STATION
COMMISSIONER,
CENTRAL POLICE
STATION :
MTHATHA
2
nd
Respondent
JUDGMENT
GRIFFITHS, J
[1] The applicant
seeks an order in the following terms:
“
1. That the applicant be granted leave to bring
this application as one of urgency in terms of Rule 6(12
)(a)
and
(b
) of the Uniform
Rules of this Honourable Court and that the forms and services
provided for in the rules of this Honourable Court
be dispensed with.
2.  That the search and seizure of the applicant’s
stock (stock listed at annexure BT 7) at Mthatha Police Club which

consists of perishable food, intoxicating beverages and soft drinks
be declared unconstitutional and unlawful.
3.  That the second respondent be directed to
release the stock to the applicant forthwith;
4. That the members of the first and second respondents
be interdicted from further unlawfully interfering with the
applicant’s
business at Mthatha Police Club;
5.  That the respondents be directed to pay costs
of the application on attorney and own client scale jointly and
severally,
the one paying the other to be absolved from liability.”
[2] The application
has been opposed by the respondents.
[3] The applicant’s
cause of action appears to have been based on the
mandament van
spolie
. As may be noted, the applicant did not content himself
solely with reliance on this possessory remedy but also sought a
declaratory
order as to the wrongfulness of the seizure together with
an interdict restraining further unlawful interference with the
applicant’s
business.
[4] The application
had its genesis in a visit by one Colonel Naidoo, the station
commander of the Mthatha Central Police Station
on 8 June 2018 to
what has been referred to as the “Mthatha Police Club”.
It is common cause that during the course
of this visit Colonel
Naidoo seized a quantity of liquor, an inventory of which is attached
to the founding affidavit. This liquor
was seized, as alleged by
Naidoo, because it was being sold illegally in contravention of the
Eastern Cape Liquor Act
[1]
(“the Liquor Act”). Thereafter, by way of letter dated 11
June 2018 the applicant’s attorneys demanded return
of the
liquor on the basis,
inter alia
, that the applicant had been
in undisturbed possession thereof until he was unlawfully
dispossessed by the police. No response
was forthcoming to this and
the application was launched as a matter of urgency on 18 June 2018.
[5] The applicant’s
case is that he is, what is referred to as, the caretaker of the
Mthatha Police Club. He holds this position
by virtue of a written
agreement (dated 5 July 2017) appointing him as such for a period of
five years. He has further contended
that the club, and indeed he
himself, are entitled to lawfully sell liquor by virtue of an
authorization issued by the Ministry
for Safety and Security on 17
August 1999. This authorization reads as follows:
“
I Vincent Joseph Matthews, Minister for Safety
and Security hereby grant authority, under the Liquor Act, 1989 (Act
No 27 of 1989),
Section 3 (1)
(g)
,
for liquor to be sold on the premises situated at Vukazana Street,
Police Camp, Umtata to members of the Service and their bona
fide
guests, for consumption on these premises.”
[6] When the club
was invaded by the police on 8 June 2018 they, according to the
applicant, unlawfully searched his premises, unlawfully
seized his
liquor stock and unlawfully arrested him and his family members on a
charge of selling liquor without a license. When
this occurred, he
informed the police that he had been operating in terms of the
aforementioned authority and was thus exempt from
the requirements of
a liquor license. He furthermore produced certain judgments of this
Court relating to previous search and seizure
operations which
spawned applications of a similar nature to this and in which he had
been successful.
[7] The response by
the respondents was that, whilst they admitted the search, seizure
and arrests, these were all done within the
ambit of the law and,
more particularly, the provisions of Criminal Procedure Act
[2]
relating to search, seizure and arrest. In this regard, Colonel
Naidoo
[3]
stated that whilst on general patrol he lawfully attended upon the
premises having been attracted thereto by the loud noise levels
in
and around the club area. He accordingly entered the club where he
found people in and about such premises consuming alcohol.
It
appeared to him that the premises were being used as a tavern and
were also illegally operating as an off sales outlet. Present
were
general members of the public and members of the South African Police
Service.
[8] Whilst inside he
witnessed the ongoing sale of liquor as against payment of money to
employees of the Iapplicant. As a consequence,
Colonel Naidoo (who is
also a duly appointed liquor licence inspector in terms of section 46
of the Liquor Act) requested that
such employees produce a liquor
licence. None was forthcoming. It was however contended by such
employees that the applicant was
entitled to sell liquor from the
premises by virtue of the authorization quoted above. Colonel Naidoo,
upon being shown such documentation,
formed the view that such was
outdated and irrelevant and sought from one Vikilahle (one of
applicant’s employees) permission
to inspect the premises. Such
permission was granted and on completion thereof, Colonel Naidoo
informed Vikilahle that such sale
of liquor in the absence of a valid
liquor licence was illegal, and he accordingly seized the liquor.
[9] Before he could
complete such seizure, the applicant arrived from a nearby room and
admitted to being in charge of the premises.
He too could not produce
a valid liquor licence as a result of which the Colonel informed him
that he was entitled to arrest both
the applicant and Vikilahle in
terms of the Criminal Procedure Act and that he was entitled to seize
the liquor.
[10] Colonel Naidoo
furthermore maintained that the Mthatha Police Club had become
defunct in 2010 and was no longer operative.
As regards the written
lease put up as an annexure to the papers, he contended that as the
club had clearly stopped operating many
years before, it was most
improbable that there was any validity whatsoever to this lease and
indeed challenged the applicant to
produce evidence thereof in reply
. This was not done.
[11] The respondent
raised certain points
in limine
which, because of the view I
take on the merits, it is not necessary for me to deal with.
[12] It is the
applicant’s contention that he was, at the time of the seizure,
exempt from selling liquor without a licence
by virtue of the
aforementioned authority and that such authority remains valid and
has not been set aside by a court of law. In
contrast, the
respondents contend that the exemption is invalid, outdated and
irrelevant.
[13] With regard to
the question of the return of the liquor, the crisp question which,
in my view, arises from this is as to whether
or not Colonel Naidoo
was lawfully entitled to search and seize the liquor stock in
question. If he indeed was, then it cannot
be said that the applicant
has established the second requirement of the
mandament van
spolie
, namely, that he was wrongfully deprived of his possession
of the liquor against his wish.
Mandament van
spolie
[14] Before dealing
therewith, it is necessary to briefly set out the law relating to the
mandament van spolie
insofar as it is applicable to this
matter. This is succinctly summarized in the following passage taken
from
Scoop Industries (Pty) Ltd v Langlaagte Estate and GM Co
Ltd
[4]
:
“
Two factors are requisite to found a claim for an
order for restitution of possession on an allegation of spoliation.
The first
is that applicant was in possession and, the second, that
he has been wrongfully deprived of that possession and against his
wish.
It has been laid down that there must be clear proof of
possession and of the illicit deprivation before an order should be
granted…
It must be shown that the applicant had had free and
undisturbed possession… When it is shown that there was such
possession,
which is possession in physical fact and not in the
juridical sense, and there has been such deprivation, the applicant
has a right
to be restored in possession
ante
omnia
.”
[5]
[15] The question as
to who bears the onus of proving spoliation was settled in the case
of
Yeko v Qana
[6]
:
“
In order to obtain a spoliation order the
onus
is on the applicant to prove the required possession, and that he was
unlawfully deprived of such possession.”
[7]
[16] Should an
applicant relying on the
mandament
fail to establish that the
dispossession was unlawful, he would be non-suited:
“
As die ontneming van die besitter se besit egter
regmatig geskiet het, dan was daar nie spoliasie nie: sien
Judelman
v Colonial Government
(1909) 3 Buch AC 446
en
19 CTR 442;
Sillo v Naude
1926 AD 21
op 26; Moleta en n’ Ander v Fourie
1975 (3) SA 999
(O) op 1002A; Malan v Dippenaar
1969 (2) SA 59
(O) op 62H.”
[8]
Disputes of fact
[17] At the outset
of the argument in this matter Mr. Notyesi, who appeared on behalf of
the applicant, accepted that I must decide
the question of lawfulness
of the seizure on the basis as set out in
Plascon-Evans Paints Ltd
v Van Riebeeck
Paints (Pty) Ltd
[9]
where Corbett JA stated:
“It is correct that, where in proceedings on notice of motion
disputes of fact have arisen on the affidavits, a final order,

whether it be an interdict or some other form of relief, may be
granted if those facts averred in the applicant's affidavits which

have been admitted by the respondent, together with the facts alleged
by the respondent, justify such an order. The power of the
court to
give such final relief on the papers before it is, however, not
confined to such a situation. In certain instances the
denial by
respondent of a fact alleged by the applicant may not be such as to
raise a real, genuine or
bona fide
dispute of fact (see in
this regard
Room Hire Co. (Pty) Ltd v Jeppe
Street
Mansions (Pty) Ltd
,
1949
(3) SA 1155
(T), at pp 1163-5;
Da
Mata v
Otto, NO
,
1972
(3) SA 858
(A), at p 882 D - H).
If in such a case the respondent has not availed himself of his right
to apply for the deponents concerned to be called for
cross-examination
under Rule 6(5
)(g)
of the Uniform Rules of
Court (
cf.
Petersen v
Cuthbert & Co Ltd
1945
AD 420
, at p 428;
Room Hire
case, supra, at
p 1164) and the court is satisfied as to the inherent credibility of
the applicant's factual averment, it may proceed
on the basis of the
correctness thereof and include this fact among those upon which it
determines whether the applicant is entitled
to the final relief
which he seeks (see eg.
Rikhoto v East Rand Administration Board
and Another,
1983
(4) SA 278
(W), at p 283 E - H). Moreover, there may be
exceptions to this general rule, as, for example, where the
allegations or denials
of the respondent are so far-fetched or
clearly untenable that the Court is justified in rejecting them
merely on the papers (see
the remarks of Botha AJA in the
Associated
South
African Bakeries
case,
supra
, at p 924
A).”
[10]
[18] In my view this
concession was properly made particularly because there are a number
of disputes of fact on the papers relating
to pertinent questions
such as whether or not consent was granted and the validity of the
exemption relied on by the applicant.
Was the seizure
lawful?
[19] The respondents
have justified the seizure of the items in question by Colonel
Naidoo,
inter alia
, by reliance on the provisions of section
20 as read with section 22 of the Criminal Procedure Act. Section 20
reads as follows:
“
20 State may seize certain articles
The State may, in accordance with the provisions of this
Chapter, seize anything (in this Chapter referred to as an article)-
(a)
which is concerned in or is on reasonable
grounds believed to be concerned in the commission or suspected
commission of an offence,
whether within the Republic or elsewhere;
(b)
which may afford evidence of the commission
or suspected commission of an offence, whether within the Republic or
elsewhere; or
(c)
which is intended to be used or is on
reasonable grounds believed to be intended to be used in the
commission of an offence.”
[20] Section 21 of
the Act requires such search and seizure to be performed under a
valid search warrant. Section 22 provides a
peace officer with the
right to search and seize without a warrant in certain circumstances
as follows:
“
22 Circumstances in which article may be
seized without search warrant
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 the
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.”
[21] In alleging
that the search and seizure was lawful the respondents rely on three
separate contentions; firstly, they contend
that the goods were
seized as a consequence of the consent given by Vikilahle; secondly,
and if such consent is found for one reason
or another to be wanting,
they rely on Colonel Naidoo’s evidence to the effect that the
liquor in question was concerned
in or was on reasonable grounds
believed to be concerned in the commission or suspected commission of
the offence of sale of liquor
without a licence and, thirdly, if the
consent was not valid they justify the failure to obtain a warrant on
the basis that a search
warrant would have been issued, but the delay
would have defeated the object of the search.
[22] Mr. Notyesi has
argued,
inter alia
, that irrespective of any possible consent
which might have subsequently been given, Colonel Naidoo simply did
not have the right
to commence the inspection and search the premises
because no warrant would have been issued in any event. In this
regard, his
contention is that Colonel Naidoo, when he heard a noise
emanating from the premises, could never have had a reasonable belief
that an offence was being committed. For this contention he has
relied upon the case of
Magobodi v Minister of Safety
and
Security and Another
[11]
where Miller J found that the police concerned in that matter (where
search and seizure was conducted without a warrant) were not

justified in their actions by virtue of the fact that they had
searched a series of vehicles without any belief whatsoever that
the
occupants or indeed the vehicles concerned were involved in any form
of offence, or that the vehicles might afford evidence
of the
commission or suspected commission of an offence, or that they were
intended to be used in the commission of an offence.
In that matter,
the police had moved down the street going from one parked vehicle to
another asking for permission to search each
vehicle by inspecting
its engine. They were, as Miller J put it “…
on a
fishing expedition
.”
[12]
[23] Colonel
Naidoo’s version in this matter is vastly different. When he
was alerted to the noise, he entered the premises
which he was
legally entitled to do. Whilst on the premises he observed the
various actions of the patrons and the employees of
the applicant
which indicated that liquor was being sold not only for consumption
on the premises but also in the nature of an
off sales. These
actions, in the absence of a valid liquor licence, would clearly have
amounted to an offence being committed in
his presence, or at least a
reasonable suspicion thereof.
[24] When such
employees were asked to produce a licence, the alleged authorization
was shown to him. As a liquor licence inspector
and an officer in the
police service, he was fully aware of the legal situation relating to
such an authorization. He was, accordingly,
fully aware that,
firstly, the authorizations attached to the club and that the club
had become defunct some years before. Secondly,
he was aware that the
applicable Liquor Act (which came into being on 13 May 2004) provided
as part of its transitional arrangements
that such an authorization
or exemption would remain valid for a period of five years subsequent
to the commencement of that Act
[13]
.
On these two bases alone, tested objectively, Colonel Naidoo must
have formed what could only have been a reasonable suspicion
or
belief that such authorization under colour of which the applicant
maintained he was entitled to sell liquor, was no longer
valid. In my
view, therefore, Mr. Notyesi’s submission in this regard
carries no weight.
[25] As regards the
question of consent, there is little doubt on Colonel Naidoo’s
evidence that such consent was indeed granted
by Vikilahle who
indicated to him that she was in charge of the premises. Not only did
she indicate this to him, but her actions
as described by Naidoo
clearly substantiated this in that she took over the discussion with
Naidoo from another employee whom he
had first approached, and
ordered the patrons to leave the premises. Naidoo clearly explained
to Vikilahle the purpose of his visit
and the difficulty he had with
the alleged validity of the authorizations produced by her. In all
the circumstances, I am satisfied
that Colonel Naidoo had received a
valid consent from Vikilahle, an employee of the applicant who was
clearly in charge of the
premises at the time, for the search and
seizure.
[26] Even, however,
if I may be wrong in this approach, it seems to me that Colonel
Naidoo had, at the very least, reasonable grounds
to believe that the
liquor was indeed being sold illegally. On this basis, had Naidoo
applied for a warrant there seems little
doubt that he would have
obtained one. Furthermore, Naidoo gave extensive evidence as to his
reasoning for believing that any delay
in pursuing such a warrant
would have defeated the very purpose of obtaining it. In my view, his
reasoning is not subject to criticism
and satisfies the criteria set
out in section 22
(b
) of the Act.
[27] Finally in this
regard, I should mention that Mr. Notyesi has submitted that certain
earlier judgments delivered by this Court
relating to seizure of
liquor at the club premises during August 2013 disposed of most of
the issues raised in this matter. Without
precise reference thereto,
it seems that he was raising a question of issue estoppel. In my view
there is no basis for this submission.
The judgments concerned were
those of the court
a quo,
which upheld an application based on
the
mandament van spolie
, and a full bench decision which, in
turn, upheld the decision of the lower court. A reading of those
judgments however (the files
not having been placed before me) makes
it clear that the facts were entirely different and in particular the
facts relied on by
the respondents, being the same respondents as in
this matter. Furthermore, the legal arguments differed and no
reliance was placed
by those respondents on the provisions of the
Criminal Procedure Act.
[28] In all the
circumstances I am satisfied that the actions of Colonel Naidoo fell
within the purview of the relevant sections
of the Act and were, on
his version, justified. Accordingly, the applicant has not
established that he was wrongfully deprived
of his possession of the
liquor and his quest for the return thereof cannot succeed. Prayers
one, three and four must therefore
be dismissed.
The declaratory
order
[29] In prayer two
of the notice of motion the applicant seeks a declaratory order to
the effect that the search and seizure was
unlawful. It seems to me,
by parity of reasoning, that this is likewise doomed to failure.
[30] In this regard,
however, there are further compelling reasons as to why the court
should not consider granting the same. It
is clear that the sale of
liquor without a valid license to do so is illegal
[14]
.
As set out earlier, the offence in issue was perpetrated in the
presence of a peace officer. Accordingly, not only was Colonel
Naidoo
entitled to arrest the suspects, he was also entitled to seize the
liquor and keep it as an exhibit in terms of sections
30 and 31 of
the Criminal Procedure Act for the pending criminal trial against the
applicant. In this regard, it was said in
Mngomezulu and Another v
National Director of Public Prosecutions
[15]
:
“
There are several decisions of this Court which
hold that, save in an exceptional case, a Court will not issue a
declaratory order
affecting criminal proceedings: see e.g.
Attorney–General of Natal v Johnstone
and
Co Ltd
1946 AD 256
;
Wahlhaus and Others v Additional
Magistrate, Johannesburg and Another
1959 (3) SA 113 (A)”
[16]
[31] In the
Wahlhaus
[17]
matter the following was also stated:
“
The appellants are alleged to have committed a
crime. The normal method of determining the correctness, or
otherwise, of that allegation
is by way of the full investigation of
a criminal trial.”
[18]
[32] Accordingly,
the applicant has not made out a case for the grant of a declaratory
order.
Costs
[33] Mr. Joubert,
who appeared together with Mr. Bodlani on behalf of the respondents,
has submitted that these proceedings amounted
to an abuse of the
process of the court and were frivolous and vexatious. Whilst I
accept that there may well be some merit in
this submission, one must
accept that the final say will be made in the criminal court in this
regard after hearing
viva voce
evidence. In the circumstances,
I am not prepared to grant a costs order on the attorney and client
basis, as sought by the respondents.
However it is clear that there
is sufficient merit in the submission that the use of two counsel by
the respondents was warranted.
[34] In all the
circumstances:
The application is dismissed with costs, such costs to include the
costs of two counsel
.
R
E  GRIFFITHS
JUDGE
OF THE HIGH COURT
ATTORNEY
FOR APPLICANT: Mr  Notyesi
INSTRUCTED
BY: Mvuzo Notyesi Inc.
COUNSEL
FOR RESPONDENTS: Mr Joubert SC with Mr Bodlani
INSTRUCTED
BY: State Attorney
HEARD
ON: 02 AUGUST 2018
DELIVERED
ON: 21 AUGUST 2018
[1]
No. 10 of 2003.
[2]
No. 51 of 1977.
[3]
The deponent to the Answering Affidavit.
[4]
1948 (1) SA 91 (W).
[5]
Ibid at pages 98 – 99.
[6]
1973 (4) SA 735 (A).
[7]
Ibid at page 739E.
[8]
Van der Merwe v Minister van Justisie en ‘n Ander
1995
(2) SACR 471
(O) at p 489 B – D. See also generally with
regard to the
mandament Van spolie; Ngqukumba v Minister of
Safety and Security and
Others
2014 (2) SACR 325
(CC) paragraphs
10 – 14.
[9]
1984 (3) SA 623 (A).
[10]
Ibid at pages 634 – 5.
[11]
2009 (1) SACR 355 (Tk).
[12]
Ibid at paragraph 10.
[13]
Liquor Act (note 1 above) section 71 (2) as a read with the schedule
thereto.
[14]
Ibid section 59 (1)
(a
).
[15]
2008 (1) SACR 105 (SCA).
[16]
Ibid at paragraph 12.
[17]
Wahlhaus and Other v Additional Magistrate, Johannesburg and
Another
1959 (3) SA 113(A).
[18]
Ibid at page 119.