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[2017] ZANCHC 45
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Buys and Another v Minister of Police and Another (2339/2016) [2017] ZANCHC 45 (21 April 2017)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno / Case number:
2339/2016
Datum
aangehoor / Date heard:
23
/ 02 / 2017
Datum beskikbaar/Date available:
21
/ 04 / 2017
In
the matter between:
CHARLES
BUYS
1
ST
Applicant
ANDRIES
BUYS
2
ND
Applicant
CONRAD
BUYS
3
RD
Applicant
GORDON
BUYS
4
TH
Applicant
LOUIS
MOSSEL
5
TH
Applicant
and
THE
MINISTER OF POLICE
1
ST
Respondent
HEAD
OF HAWKS, SA POLICE SERVICE
2
ND
Respondent
Coram: Snyders
AJ
JUDGMENT
SNYDERS,
AJ
1.
This matter came before me as an opposed motion
for the return of various articles to the applicants seized by
members of the
Respondents in terms of s 20 ( read with ss 21
and 22) and s 31 (1) (a) of the Criminal Procedure Act, 51 of 1997
(“the CPA”).
2.
The 1
st
applicant is Charles Buys (C Buys). The 2
nd
to 4
th
applicants
are his sons, Andries Buys (A Buys), Conrad Buys and Gordon Buys (G
Buys), respectively. The 5
th
applicant is Louis Mossel (L Mossel). C Buys and his sons resided at
[....] H., Windsorton and L Mossel resided at [....] V. B.
S.,
Warrenton.
3.
The 1
st
and 2
nd
respondents are the Minister of Police (“the Minister) and the
Head of the Hawks, SA Police Service (“the Head of the
Hawks”).
4.
Before going any further, the following
preliminary issues must be dealt with:
4.1
The applicants abandoned any relief against
the Head of the Hawks as no such entity exists;
4.2
The affidavit by the applicants’ legal
representative dated 16 February 2017 was disallowed at the hearing
of the matter.
It was irregularly filed by attaching same to the
applicants’ heads of argument. The Minister objected to the
handing up
of same as they were not
ad idem
with the contents thereof. The applicants then abandoned the relief
to hand up said affidavit;
4.3
The Minister applied to
hand up a search and seizure warrant for House [....], H. dated 26
July 2016. In his argument, the Minister
intimated that he had
neglected to attach same to their papers as the applicants had failed
to refer thereto in the Founding Affidavit.
The applicants objected
to the handing in thereof. The applicants pointed out the references
made in the Founding Affidavit to
the search and seizure warrant of
26 July 2016 at House [....], H.. The Minister made reference thereto
in three separate paragraphs
of his opposing affidavit and at no
stage indicated that there was a search and seizure warrant. The
applicants further objected
as the document was not the original and
did not follow the best evidence rule. The Minister argued that the
original document
was in the police docket and was required for
criminal proceedings. It is trite that a party in application
proceedings stand
and fall on their papers. The Minister was
forewarned in the Founding Affidavit of the articles seized on 26
July 2016 at House
[....], H.. He thus had the opportunity to adduce
this evidence in their opposing affidavit and failed to do so.
Consequently
I find that the search and seizure warrant dated
26 July 2016 for House [....], H. was not properly placed before me
by the Minister
and I will have no regard thereto.
5.
It was not disputed that the officials who
executed the search and seizure warrants were police officials acting
in the course and
scope of their employment in executing their duties
on behalf of the Minister. The Minister seized the following articles
from:
5.1
C Buys at [....] H. on 29 July 2016:
Tata Bus, Quantum taxi, Chev Corsa
Bakkie, Trailer; Ford Focus 1.8 motor vehicle, Nokia Cellphone;
5.2
A Buys at [....] H. on 29 July 2016:
Nokia Cellpone; Blackberry
Cellphone, Laptop; BMW 325 CI motor vehicle;
5.3
Conrad Buys at [....] H. on 26 July 2016:
Nokia cellphones and Air Max
sneakers;
5.4
G Buys at 2084 Holpan on 29 July 2016:
Lounge suite, Samsung curve
television, television stand, 2 beds, microwave and Samsung dvd
speakers;
5.5
L Mossels at [....] V. B. S., Warrenton
Station on 09 September 2016:
Black Opel Corsa.
6.
Consequently, the following provisions of the CPA are
applicable: secs 20, 21, 22 and 31 (1) (a). S 20 deals
with the
articles that are susceptible to seizure. S 21 deals
with the power of the Minister to search and seize with a warrant and
s 22 deals with the power of the Minister to search and seize without
a warrant. Section 31 sets out the disposal of articles
where
no criminal proceedings are instituted.
7.
S 20 stipulates that items may be seized if on
reasonable grounds it is believed that:
7.1
Such article was used in the commission or
suspected commission of an offence;
7.2
Such article may afford evidence of the
commission of an offence;
7.3
Such article is intended to be used in the
commission of an offence.
8.
S 21 stipulates that whenever possible, a warrant
must be obtained from a Magistrate or a Justice of the Peace before a
search is
conducted. The search and seizure warrant under this
section will be granted where it appears to such Magistrate or
Justice
of the Peace from information on oath that there are
reasonable grounds for believing that any such article is in the
possession
or under the control of or upon any person or upon or at
any premises within his area of jurisdiction; or
such
article in the possession or under the control of any person or upon
or at any premises is required in evidence of such proceedings.
A
search and seizure warrant was presented by the Minister for the
seizure of G Buys’ articles.
Prima
facie
, this search and seizure was lawful.
9.
S 22 sets out the powers of the Minister to
conduct searches without a warrant. There are
two such instances
under this section:
9.1
If the person concerned consents to the search
and seizure; or
9.2
If the Minister on reasonable grounds believes
that the search warrant will be issued under s 21 or s 25 (s 25 deals
with the power
of the Minister to enter premises in connection with
State security or any offence). The second leg of this enquiry
must
be the reasonable belief that the delay in obtaining the search
warrant will defeat the object of the search.
10.
C Buys, A Buys, G Buys, Conrad Buys and L
Mossel’s articles were seized by the Minister without a
warrant. The question
is thus whether these seizures were
lawful or not and if not, whether the items should be returned.
The further question
is whether s 31 of the CPA finds application
herein and the articles subsequently returned in terms thereof.
11.
S 31(1) (a) of the CPA governs the
procedure for the disposal of articles if no criminal proceedings are
instituted. Thus
if it appears
that such article is not required at the trial for purposes of
evidence or for purposes of an order of court, 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 it.
12.
The test
under both secs 21 and 22 of the CPA is whether there was a
reasonable belief that the seized articles were used in the
commission of an offence or will provide evidence of the commission
of an offence. The
onus
rested
on the Minister to prove that reasonable grounds existed.
Reasonableness should be assessed objectively. The grounds
justifying the seizure must be based on reasonable grounds, which
grounds must have existed at the time when the Minister acted
and not
only facts which appear at a later stage.
[1]
13.
The
reasonable belief required by the Magistrate or Justice of the Peace
in terms of s 22 of the CPA must similarly be based on
objective
facts provided by the Minister. If no such objective facts for the
reasonable belief were disclosed, the Minister was
not entitled to
seize the articles in question and same must be returned to the
applicants if they may be in lawful possession
thereof.
[2]
14.
Thus I accept that if the reasonable belief by
the Minister is rebutted by the applicants, then the seizure may be
set aside and
the property be returned to the applicants.
15.
The reasonable belief offered by the Minister is
that that some of the articles were instrumental to the commission of
theft and
money laundering and the rest may afford evidence to the
commission of the alleged crime. The alleged crime relates to R37
million
that was stolen on 06 May 2016. The Minister followed certain
leads that led him to the applicants whose articles were seized and
the applicants arrested. The applicants were granted bail and the
investigation proceeded. Investigations revealed that none of
the
applicants had sufficient available funds to purchase the articles
and that:
15.1
C Buys paid R65 400.00 in cash for a
Quantum taxi motor vehicle purchased after 06 May 2016, and paid an
instalment of
R11 500.00 in cash;
15.2
C Buys paid R365 000.00 in cash for a
Quantum Taxi;
15.3
C Buys paid R122 816.41 in cash for a
Corsa motor vehicle on the same day that he paid for the Quantum
Taxi;
15.4
C Buys paid R10 499.00 in cash for a
trailer;
15.5
C Buys has a Ford Focus financed with Nedbank
with a monthly instalment of R3 263.40, believed to be an
instrument in the commission
of a crime.
15.6
A Buys paid 3 cash deposits for a BMW 325i
(amount undisclosed);
15.7
L Mossel purchased an Opel Corsa for R75 000.00
after the commission of the offence.
16.
The objective facts show that cash amounts of
approximately R810 000.00 were paid by the applicants for vehicles
after the commission
of the offence. The applicants must then
rebut the basis for this reasonable belief.
17.
The
applicants alleged that the Quantum taxi seized by the Minister is a
2011 model which was purchased under financing. C
Buys attached
the financial statement thereto. The Minister alleged that they
attached a 2016 model but neglected to attach the
SAP 13 to that
effect. However, applying the test laid down in
Plascon-Evans
[3]
,
I must take the Minister’s version as well as those aspects of
the applicant’s version that are not in dispute.
If on
all probabilities the preponderance points to the version of the
applicant being weak, the applicant should fail. On
his own
version in the replying affidavit, C Buys alleged that he merely
attached the statement to show how he did purchases.
The
preponderance of probabilities point in favour of the Minister.
18.
A Buys alleged that the BMW 325 CI was a 2006
model which he purchased with money he received from the sale of two
other vehicles.
The Minister could not find any evidence of the
sale of these vehicles on E-Natis system.
19.
I find there to be sufficient objective
information to constitute a reasonable belief for the seizure of the
articles. C Buys indicated
that he has a contract with the Department
of Transport from which he earned R30 000.00 per month. No
other explanation is
provided to successfully rebut the
onus
that was discharged by the Minister. No account is given for
purchases of approximately R810 000.00
.
20.
I align
myself with the finding in
Choonara
v Minister of Law + Others
[4]
that s 20 of the CPA should be read adjunct to s 31 as both sections
are aimed at facilitating the investigation and proof of the
link
between the articles and the offence, but also that the State must
act with reasonable expedition in instituting criminal
proceedings.
Thus the articles must be returned to the applicants where time taken
to investigate becomes so extended that it constitutes
an act
oppressive of the applicants’ rights. There must also not be
any real prospect of further advance by the State in
the
investigation. Where the Minister has not shown that applicants
cannot legally possess the articles, same must be returned
to the
applicants.
21.
The applicants bear the
onus
to show that there are no criminal proceedings pending and that there
are no prospects of criminal proceedings being instituted
in the
foreseeable future. Unfortunately, the applicant failed to discharge
this
onus
on a factual
basis on the papers. An assertion was made from the Bar by the
parties that the matter was provisionally withdrawn
in the
Magistrate’s Court. The applicant further only included a
“last thought” paragraph in the founding
affidavit
indicating that the Minister is not entitled to keep the articles as
they cannot afford evidence of the commission of
the crime,
22.
Distinguishing
this matter from the
Choonara
[5]
,
Venter
[6]
and Dookie
[7]
matters
is that no criminal proceedings had been instituted in those matters;
alternatively there were no proceedings to be instituted
in the
foreseeable future. It is clear that a long period to finalise
the investigation must be coupled with the fact that
no proceedings
had been instituted or there are no prospects of proceedings being
instituted. Therefore, although the Minister
cannot hold the
articles seized for an indefinite period of time whilst awaiting the
finalisation of the investigation, proceedings
herein had in fact
been instituted against the applicants.
23.
Therefore, the applicants cannot find any shelter
in s 31 of the CPA. Had the applicant brought the application
under s 31
after the case was withdrawn, they may have had better
success. As it is, their reliance on s 31 is stillborn and was
not
sustained in their papers.
24.
Ordinarily the costs should follow the result. I,
however, find that the Minister cannot be awarded costs due to their
failure to
fully address crucial allegations in their opposing
affidavit and attempting to supplement their case by handing up
documents during
argument. Neither is the applicant entitled to
costs based on the irregular filing of an affidavit attached to heads
of argument,
their poorly drafted papers and joinder of a
non-existent respondent. This does not lend itself to a cost order in
their favour.
This is thus an appropriate matter in which
neither party is entitled to costs.
Wherefore
the following order is made:
1.
The application is dismissed.
2.
Each party is to pay their own
costs.
_______________
JA
SNYDERS
ACTING
JUDGE
On
behalf of Applicant:
Adv Schreuder (On instructions of
Rick Ishmael Attorneys)
On
behalf of Respondent:
Ms Phakama (State Attorney)
[1]
See
Mnyungula
v Minister of Law & Order & Another
2004 (1) SACR 219
at
para 12
[2]
Compare Marvanic
Development (Pty) Ltd & Another v Minister of Safety &
Security & Another
2007 (3) SA 159
(SCA) at para 9
[3]
Plascon-Evans
Paints Ltd v Van Riebeek Paints (Pty) Ltd
1984
(3) SA 623 (A)
[4]
1992
(1) SACR 239
(W) at 246 a - c
[5]
At 245
E- F
[6]
Venter v Minister van
Polisie 2014 JDR 0373 (GNP) at
p 2
[7]
Dookie v Minister of Law
& Order and Others
1991 (2) SACR 153
(d) at
p 155
para 4.3