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[2007] ZASCA 29
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Minister of Safety and Security v Ndiniso (286/06) [2007] ZASCA 29; [2007] SCA 29 (RSA) (27 March 2007)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 286/06
Not Reportable
In
the matter between
MINISTER
OF SAFETY AND SECURITY
......................
Appellant
and
KHAYALETHU
NDINISO
......................
Respondent
Coram
: STREICHER, NUGENT, LEWIS, COMBRINCK JJA, MUSI AJA
Heard: 15 MARCH 2007
Delivered:
27 MARCH 2007
Summary
:
Appeal against order for return of vehicle seized in
terms of s 20 of
Criminal Procedure Act 51 of 1977
: report from an
unidentified source that model of vehicle different from that
registered is not sufficient to ground a reasonable
belief that a
police officer would obtain a search warrant from a magistrate or
judge: appeal dismissed.
Neutral
citation: This case may be cited as Minister of Safety and Security v
Ndiniso
[2007] SCA 29 RSA
JUDGMENT
LEWIS JA
[1] The respondent, Mr Khayalethu Ndiniso, purchased a used Toyota
Hilux vehicle from a motor dealer for R34 000. He registered the
vehicle first in the name of his father, and on the latter’s
death in 2002, in the name of his mother. In June 2004 Ndiniso
lent
the vehicle to Mr Selby Halam who drove it to Tsolo in the Transkei.
There the vehicle was seized by the police on the basis
that they
suspected that it was stolen.
[2] In January 2005 Ndiniso brought an application against the
appellant (the State) for return of the vehicle. Charges against him
(presumably for being in possession of a stolen article) were
withdrawn in March 2005. Petse J (in the High Court, Transkei)
granted
the order sought, finding that the vehicle had not been
lawfully seized in terms of
s 20
of the
Criminal Procedure Act 51 of
1977
. The State appeals against that decision to this court with its
leave.
[3] The basis for the seizure is set out in the answering affidavit
of the police officer who seized the vehicle in Tsolo, Mr S S
Somana.
He said that he saw the vehicle being driven by Halam, whom Somana
thought was too young to ‘own a vehicle’ and
so he
suspected that there was something amiss. He radioed to the local
police station and asked that the vehicle registration be
checked. He
received a ‘report’ from an unidentified person that the
model of the vehicle that he enquired about was
different from the
model appearing on the record of registration. He suspected, then,
that the vehicle had been stolen and might
afford evidence of the
commission of an offence. Accordingly he ‘seized’ the
vehicle, believing that if he were to apply
for a warrant for search
and seizure it would be granted to him, but that any delay caused by
obtaining a warrant would defeat the
object of the search. The
vehicle was kept at the police station while the ‘vehicle unit’
conducted investigations. It
was not returned to Ndiniso, despite the
withdrawal of charges, hence the application.
[4]
Section 20(b)
of the Act provides that the State may seize an
article ‘which may afford evidence of the commission or
suspected commission
of an offence, whether within the Republic or
elsewhere’.
Section 21
requires a search warrant for the
seizure of articles: a magistrate or judge is empowered under the
section to issue such a warrant
where it appears 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 . . . within his area of jurisdiction. . .’
(s
21(1)(a)).
[5]
Section 20
must, however, be read with
s 22
which deals with
seizure without a search warrant. Articles may be seized from a
person without a warrant only if the person concerned
consents to the
seizure, or, under
s 22(b)(i)
and (ii), where the police officer
believes, on ‘reasonable grounds’ that a search warrant
will be issued to him in terms
of
s 21
and that the delay in
obtaining a warrant would defeat the object of the search.
[6] The State argues that Somana believed that the vehicle driven by
Halam was stolen and that it could afford evidence of the commission
of an offence. That belief, it contended, was reasonably held because
Somana had received a report from the police station that the
vehicle
model did not match that on the registration document.
[7] A police officer may seize an article, without a warrant, only
where he believes on reasonable grounds that he would be able
to
satisfy a magistrate or judge that the vehicle may afford evidence of
the commission or suspected commission of an offence. The
only ground
for such reasonable belief advanced by the State is that a report had
been received by Somana about the disparity between
the model of the
vehicle itself and that reflected on the registration papers. The
court below considered that this was insufficient
evidence to
determine whether Somana’s belief that he would obtain a search
warrant was based on reasonable grounds.
[8] The real difficulty with the State’s case is that no
evidence is proffered by it as to the nature or the status of the
‘report’ made to Somana: there is no information provided
by the State as to who made the report; what the capacity and
status
of the person was; where the information had been obtained or why it
should be regarded as reliable. There is a mere assertion
that a
report indicated that there was a difference between the model of the
vehicle seen by Somana and its description on the registration
papers. Would that satisfy the magistrate or judge apprised of an
application for a search and seizure warrant under
s 21?
I think not.
No facts were advanced to justify a finding that Somana’s
belief was based on reasonable grounds.
[9] In the circumstances I consider that the vehicle was unlawfully
seized: there was no compliance with the provisions of
ss 20
and
22
of the Act. Ndiniso is thus entitled to the return of the vehicle.
[10] The appeal is dismissed with costs including those occasioned by
the employment of two counsel.
_____________
C H Lewis
Judge of Appeal
Concur:
Streicher JA
Nugent JA
Combrinck JA
Musi AJA