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[2021] ZASCA 146
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Minister of Police v Khoeli (241/2020) [2021] ZASCA 146 (18 October 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case no: 241/2020
In the matter between:
MINISTER OF
POLICE
APPLICANT
and
MPHALE ALBERT
KHOELI
RESPONDENT
Neutral citation:
Minister
of Police v Khoeli
(241/2020)
[2021]
ZASCA 146
(18 October 2021)
Coram:
PETSE AP and MATHOPO, MBATHA, CARELSE and MOTHLE
JJA
Heard
:
This appeal was, by consent between the parties, disposed of without
an oral hearing
in terms of
s 19(a)
of the
Superior Courts Act 10 of
2013
.
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication
on the Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down of the judgment is deemed to be 09:45
on 18 October 2021.
Summary:
Criminal Procedure –
s
32
of the
Criminal Procedure Act 51 of 1977
– search and
seizure – whether decision declaring livestock seized by police
forfeited to the State lawful.
ORDER
On
appeal from:
Free State Division of the
High Court, Bloemfontein (Mbhele J and Mhlambi J sitting as court of
first instance):
The application for leave
to appeal is dismissed with costs.
JUDGMENT
Mbatha JA (Petse AP and
Mathopo, Carelse and Mothle JJA concurring):
[1]
This is an application for leave to appeal by the Minister of Police
(Minister) against a judgment of
the Free State Division of the High
Court, Bloemfontein (the high court) in terms of which the decision
of the members of the South
African Police Service (SAPS) to declare
forfeited to the State 44 cattle belonging to Mr Mphale Albert Kgoeli
(the respondent)
was reviewed and set aside. The high court
subsequently refused leave to appeal. On petition to it, this Court
referred the application
for oral argument in terms of s 17(2)(b) of
the Superior Courts Act 10 of 2013 (the
Superior Courts Act). The
Court further ordered the parties to be prepared, if called upon to
do so, to address it on the merits. By agreement between the
parties,
the application was disposed of without hearing oral argument in
terms of s 19(1)(a) of the Superior Courts Act 10 of
2013 (the
Superior Courts Act).
>
[2]
The facts are largely common cause. On 15 May 2017, 44 cattle branded
with the animal identification
mark registered in the name of the
respondent were seized by Captain Wessels in Hobhouse, Free State.
The seizure was in terms
of s 20 of the Criminal Procedure Act 51 of
1977 (the CPA). The next day the respondent and two others were
arrested and charged
for contravening s 32(1)
(m)
(iii) read
with s 6(1)(a) of the Animal Diseases Act 35 of 1984 (the Diseases
Act). It was alleged that the respondent and his companions
imported
into or conveyed in the Republic of South Africa 44 cattle found in
their possession without the requisite permit prescribed
in terms of
s 6(1)
(d)
of the Diseases Act. On 17 May 2017, the respondent
paid an admission of guilt fine in terms of s 57A of the CPA.
[3]
On 30 May 2017, without any notice to the respondent, the SAPS
declared all 44 cattle forfeited to the
State. Unaware that the
cattle had in the interim been declared forfeited to the State, the
respondent sought and obtained an order
in the magistrate’s
court in terms of which the cattle were restored to him. On learning
of this order, the SAPS challenged
the validity thereof in the high
court. On 6 November 2017, the high court (per Reinders and Naidoo
JJ) reviewed and set aside
the magistrates’ court order on the
basis that the magistrates’ court did not have jurisdiction to
entertain the matter.
[4]
On 7 November 2017, pursuant to the high court's order, the SAPS
again declared the 44 cattle forfeited
to the State. On the same day
42 of the cattle were sold by public auction for R286 900. It was
common cause between the Minister
and the respondent that two of the
44 cattle died before the public auction whilst in the custody of the
SAPS.
[5]
Dissatisfied with the forfeiture order and the consequent sale of the
cattle, the respondent instituted
proceedings in the high court for
an order reviewing and setting aside the decision of the SAPS. The
high court, per Mbhele and
Mhlambi JJ, declared the decision of the
SAPS, taken on 07 November 2017, declaring the respondent’s 44
cattle forfeited
to the State, unlawful and set it aside.
[6]
The high court found that on a proper interpretation of s 31(2)
of the CPA, the items seized (cattle)
should have been returned to
the person (the respondent) from whom they were seized, provided that
he may lawfully possess them.
The high court reasoned that the cattle
in question bore a brand identification mark lawfully assigned to the
respondent and that
the respondent had provided the police with
documentation proving his ownership or lawful possession thereof.
Therefore, his possession
was lawful but notwithstanding this the
SAPS had failed to give the respondent 30 days' notice as required by
s 32(1) read with
s 31(2) of the CPA before declaring the cattle
forfeited to the State. This then raises the question whether the
Minister's envisaged
appeal enjoys a reasonable prospect of success
or whether there is some other compelling reason why the envisaged
appeal should
be heard. The application for leave to appeal therefore
turns on the following issues. First, whether the respondent’s
cattle
could be forfeited to the State without affording the
respondent the opportunity to be heard prior to such decision being
taken.
Second, whether such failure to afford him an opportunity to
be heard was arbitrary. Third, whether the decision declaring the
cattle forfeited to the State was inconsistent with the provisions of
s 32 of the CPA and thus unlawful.
[7]
As already mentioned, the high court upheld the respondent’s
application on the basis that the
SAPS made fundamental errors on the
material aspects. First, it held that the SAPS failed to notify the
respondent of the decision
to forfeit his cattle to the State.
Second, the SAPS failed to invite the respondent to make
representations to them regarding
the question as to whether his
possession of the seized cattle was lawful. Third, the SAPS failed to
ascertain if there was any
other person who may lawfully possess the
cattle before declaring them forfeited to the State. Lastly, the
provisions of s 32 impose
a positive duty on the investigating
officer to take reasonable steps to ensure that the article is
returned to the person from
whom it was seized or anyone who may
lawfully possess the article. In my view and for reasons that will
become apparent later in
this judgment the high court's underlying
reasoning can hardly be faulted.
[8]
In this Court, the Minister asserted that the cattle were seized
because there was no one lawfully entitled
to possess them. This
contention was based on the grounds that first, properly construed, s
32 does not place a duty on the Minister
to afford any person a
hearing before declaring an article seized by the police forfeited to
the State. Secondly, releasing the
cattle to the respondent after the
payment of the admission of guilt fine would result in him committing
a further offence.
[1]
[9]
Accordingly, this application turns on the interpretation of the
provisions of s 32 of the CPA, which
provides as follows:
‘
(1)
If the criminal proceedings are instituted in connection with any
article referred to in s 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 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]
It is trite that when interpreting a statutory provision, what must
be considered is the language, context and
purpose of the statute,
and the material known to those responsible for drafting it.
[2]
Applying those principles to the present case, the language of s 32
is clear and explicit and must be given effect to. It requires
that
the article be returned to the person from whom it was seized if such
person may lawfully possess it. It therefore places
a duty on the
Minister to enquire if the would-be possessor may lawfully possess
the article. If he may not lawfully possess it,
it must be returned
to the person who may lawfully possess it. Section 32 explicitly
provides for procedural fairness prerequisites,
for the determination
of who may lawfully possess an article that has previously been
seized by the police before such an article
may be declared forfeited
to the State. The process requires the weighing up of the competing
interests before a declaration for
forfeiture is made. The approach
espoused by the Minister in this case, namely that an enquiry into
this issue is unnecessary once
an admission of guilt fine is paid, is
devoid of merit.
[11]
Section 32 clearly contemplates the applicability of the
audi
alteram partem
rule, a fundamental
principle of administrative justice as decreed by s 33 of the
Constitution. It seeks to prevent arbitrariness
on the part of
functionaries exercising public power. These considerations, which I
endorse, were reiterated in
S v
Tengana
,
[3]
in which the court held that: even where the article was used in the
commission of a crime, an enquiry should still be conducted
before a
declaration to forfeit an article to the State is made; the accused
must be afforded an opportunity to lead evidence;
the court must
consider the nature and value of the item and the role played by the
item in the commission of the offence. Thus,
the approach for which
the Minister contends, namely declaring a seized article forfeited to
the State without any reference to
interested parties, is
antithetical to the fundamental principle of the
audi
alteram partem
rule.
[12]
This brings me to s 31(2) of the CPA, which sets out the procedure as
to how the process should unfold before a
forfeiture order is made.
It provides as follows:
‘
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.’
As is
apparent from the record, the Minister paid no regard to the
prescripts of s 31(2), which are referred to in s 32 of the CPA.
Section 31(2) provides that the lawful possessor of the article must
be notified that he or she may take possession of the article.
Forfeiture can only take place after the expiry of the mandatory 30
days’ period. In this case the SAPS heedlessly went ahead
to
declare the cattle forfeited to the State and thereafter disposed of
them by public auction without first complying with the
strictures of
the CPA. The applicant has not advanced any reason why they failed to
comply with the prescripts of s 31(2) of the
CPA.
[13]
Although made in a different context, the remarks of the
Constitutional Court in
Ngqukumba v Minister of Safety &
Security and Others
[2014] ZACC 14
;
2014 (7) BCLR 788
;
2014 (5)
SA 112
(CC) (
Ngqukumba
) are instructive. The Court there said
(para 18):
‘
.
. . [P]ossession is closely associated with and is often an incident
of ownership. In some instances the protection of possession
will
guarantee wholesome enjoyment of the right to property’.
[4]
[14]
As stated earlier, the respondent paid an admission of guilt fine for
contravening s 32(1)
(m)
(iii) read with s 6(1)
(a)
of the
Diseases Act. Section 32 (1)
(m)
(iii) provides that:
‘
(1)
Any person who –
.
. .
[m]
(iii) is found in possession of any animal or thing in respect of
which a permit referred to in section 6 (1) (a) is required
to be
obtained and in respect of which there is a reasonable suspicion that
it was imported into the Republic without such permit
or contrary to
a condition of such permit, and is unable to give a satisfactory
account of such possession;
.
. .
shall
be guilty of an offence. . . ’
And s
6(1)
(a)
, in turn, provides that such permit should be obtained
before the importation and conveyance of such cattle or stock into or
through
the Republic.
[15]
The Minister sought to justify the forfeiture order by contending
that it came about by simple operation of the
law. This contention is
plainly untenable. Nothing much need be said about it. It is
sufficient to say that it behoved the SAPS
to conduct an inquiry to
determine as to whether the respondent could lawfully possess the 44
cattle previously seized from him
and if so, to return the cattle to
him. It therefore goes without saying that no decision declaring the
cattle forfeited to the
State could lawfully be taken before an
enquiry into the facts surrounding the respondent's possession of the
cattle was conducted.
[5]
[16]
The SAPS were at all times aware that the respondent had between 17
May 2017 and 30 May 2017 been trying to secure
the release of his
cattle into his possession. Notwithstanding this, the SAPS forged
ahead, without reference to the respondent,
to secure an indemnity
from the Department of Agriculture, Forestry and Fisheries against
any claim by the owner of the cattle
in the event that the envisaged
forfeiture of the cattle to the State was successfully impugned. Once
the Department furnished
the required indemnity, the SAPS wasted no
time to declare the cattle forfeited to the State and hastily sold
them by public auction
on the same day. No thought was given to the
fact that the permit in issue here was not required to prove the
respondent's lawful
possession of the cattle but solely for the
importation into or conveyance in the Republic of the cattle in
question. All of this
was done in the face of s 17(2B) of the
Diseases Act which empowers the Director therein referred to, to
return the animals seized
in terms of s 17(1) (of the Diseases Act)
to the person who imported them into the Republic if the Director is
of the opinion that
a permit would have been issued to such a person
if an application therefor had been made.
[17] It must
by now be obvious that in the light of what is stated above the
Minister's envisaged appeal has no reasonable
prospect of success.
Nor has the Minister established that there is some other compelling
reasons why the appeal should be heard.
[6]
Accordingly, the application for leave to appeal falls to be
dismissed.
[18] In the
result the following order is made:
The application for leave
to appeal is dismissed with costs.
Y T MBATHA
JUDGE OF
APPEAL
Appearances
For
applicant:
G J M Wright
Instructed
by:
The State Attorney, Bloemfontein
For
respondent:
A I B Lechwano
Instructed by:
Monyamani & Ngcangiso Inc, Bloemfontein
[1]
This is manifestly a reference to the offence created by s
32(1)
(m)
(iii) read with s 6(1)
(a)
of the Animal
Diseases Act 35 of 1984 as mentioned in paragraph 4 above.
[2]
Natal Joint Municipal Pension Fund v Endumeni
Municipality
[2012] ZASCA 13
;
[2012] 2 All SA 262
(SCA);
2012 (4) SA 593
(SCA) para 18.
[3]
S v Tengana
[2003] ZAWCHC 55.
[4]
Ngqukumba
v
Minister of Safety & Security and
Others
[2014] ZACC 14
;
2014 (7) BCLR
788
(CC);
2014 (5) SA 112
(CC) para 18.
[5]
Compare:
Ngqukumba
footnote 4 above
para 21.
[6]
See, in this regard,
S 17(1)
(a)
(i) and (ii) of the
Superior
Courts Act 10 of 2013
.