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[2015] ZAGPPHC 344
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Lempe v SAPS Vehicle Pound (Pretoria West Vis) and Others (49090/2014) [2015] ZAGPPHC 344 (26 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 49090/2014
In
the matter between:
BELLE
LEMPE
..................................................................................................................
APPLICANT
and
SAPS
VEHICLE POUND (PRETORIA WEST
VIS)
.....................................
FIRST
RESPONDENT
STATION
COMMANDER, BROOKLYN POLICE
STATION
.......................................................................................................
SECOND
RESPONDENT
MINISTER
OF
POLICE
.................................................................................
THIRD
RESPONDENT
SIZWE
VIRGIL
SIBEKO
............................................................................
FOURTH
RESPONDENT
JUDGMENT
TLHAPI
J
[1]
On May 2014 I gave orders in respect of prayers two (2) and three(3)
of the Notice of Motion and, reserved judgment in respect
of costs.
MY
REASONS FOR ORDERS TWO (2) AND THREE
[2]
The applicant sought the following prayers:
“
2.
Directing the first to the third respondents to return or allow the
applicant to collect vehicle with registration being BLR
23 FR GP,
Vin no. 1C3APE9L64X013315, from the first respondent within 24 hours
of this order,
3.
That all the respondents be interdicted from removing the vehicle
from the applicant without a court order.
5.
That costs be paid by any party that opposes this application.”
There
was a later application to amend the notice of motion which was not
opposed, to read:
“
Costs
to be paid by any of the parties opposing this application, jointly
and severally, one paying the other to be absolved”
Furthermore
at commencement of the hearing there was application for a
postponement made on behalf of the fourth respondent.
BACKGROUND
[3]
On 25 July 2014 the applicant’s vehicle which had been kept on
his property was seized by the police attached to the Brooklyn
Police
Station on allegations that it had been stolen from the fourth
respondent. Despite the theft allegations he was not arrested
and
there was no pending case against him. This seizure was preceded by
the issuing of an interdict by order of the above of the
23 September
2013 under case number 60552/2013 against the Sunnyside Police and
the fourth respondent .A copy of the application
was annexed to the
papers and the application was not opposed. The applicant averred
that after this order was obtained the fourth
respondent changed
ownership of the vehicle after fraudulently using a copy of his
identity document.
[4]
The applicant averred that the vehicle in question belonged to him
and that he had given it to the fourth respondent for use,
when the
latter was still under his employ. Due to the many traffic fines
accumulated by the fourth respondent, the applicant took
possession
of the vehicle. This had not been the first attempt by the fourth
respondent to obtain possession of the vehicle through
police
intervention. Both parties were later consulted by one Warrant
Officer Bonoko who informed them that their dispute
was a civil one.
[5]
Having failed to convince the Brooklyn Police the fourth respondent
proceeded to the Honeydew Police Station. Warrant Officer
Masisi
(‘Masisi’) averred that the vehicle was reported stolen
at the Spar parking in Fredenharry Street Strubenvalley,
while the
fourth respondent had gone shopping and case 1153/10/2013 was opened.
His investigation on information given by the fourth
respondent led
the police to the applicant. Masisi averred that he called the
applicant to inform him about the report and applicant
was not
prepared to discuss the matter with him and instead referred him to
his attorney. Masisi was later informed of the court
order against
the Sunnyside police.
[6]
Masisi called the fourth respondent to inform him of possible perjury
charges. The fourth respondent attended his office and
produced
vehicle registration documents to prove ownership and bank statements
to prove that he had purchased the vehicle from
the applicant for
R150 000.00. He produced proof of payment to the applicant of
two EFT transactions of R80 000.00 and
R50 000.00 and
alleged that the balance of R20 000.00 had been paid to
applicant in cash. After this visit the fourth
respondent informed
him that he was going overseas on business and Masisi held the
investigation in abeyance.
[7]
On 25 June 2014 he was informed by Captain Mosipha (‘Mosipha’)
of the Brooklyn Police that the fourth respondent
had been to see him
and that he was informed of the case reported to the Honeydew Police.
Mosipha informed him that the fourth
respondent knew where his
vehicle was and the fourth respondent was accompanied to the
applicant’s residence and the vehicle
was seized.
[8]
In reply the applicant averred that the fourth respondent proceeded
to Honeydew Police after failing to open a case against
him in
Brooklyn. He denied that Masisi called him. He made contact with
Masisi after the Brooklyn Police had informed him of a
case of
vehicle theft, reported to the Honeydew Police. He called Masisi
several times and he never kept promises to revert to
the applicant.
He contended that the vehicle ownership registration did not prove
ownership and that the bank statements were fraudulent.
APPLICATION
FOR POSTPONEMENT
[9]
The head note in
National
Police Service Union v Minister of Safety and Security
2000 (4) SA 1110
(CC) reads:
“
The
postponement of a matter set down for hearing ..on a particular date
cannot be claimed as of right. An application for a postponement
seeks an indulgence from the Court. Such postponement will not be
granted unless the Court is satisfied that it is in the interests
of
justice to do so. In this respect the applicant must show that good
cause does exist, it will be necessary to furnish a full
and
satisfactory explanation of the circumstances that give rise to the
application. Whether a postponement will be granted is
in the
discretion of the Court and cannot be secured by mere agreement
between the parties. In exercising that discretion, the
Court will
take into account a number of factors including (but not limited to):
whether the application has been timeously made;
whether the
explanation given by the applicant for postponement is full and
satisfactory; whether there is prejudice to any of
the parties; and
whether the application is opposed. All these factors will be weighed
by the Court to determine whether it is
in the interests of justice
to grant the postponement.”
[10]
There was no formal application made for postponement, it was moved
from the bar on the morning of the 13 May 2015. The purpose
for the
application was to have enabled the fourth respondent who was
overseas to sign his opposing affidavit. Counsel for the
fourth
respondent was in possession of an unsigned document and wished to
have the document admitted for purpose of argument.
The
document was not admitted and the application for postponement was
refused for the following reasons:
1.
The application was
brought on urgency and on 9 July 2014 it was postponed
sine
die
to allow
applicant to file its replying affidavit. At this stage only the
first to the third respondent had filed answering papers.
2.
The index to the papers
was served on the fourth respondent’s attorneys on 22 January
2015 and the notice setting down the
matter to the opposed roll of 11
May 2015 was served on the fourth respondent’s attorneys on 3
March 2015.
3.
The main application
was served on the fourth respondent’s attorneys on 3 July 2014
and despite having had knowledge of the
application no effort was
made to have the affidavit signed. The fact that there was an
unsigned copy meant that the fourth respondent
was in contact with
his attorneys to consult on the content and there is no explanation
why it has taken almost ten (10) months
to respondent and why a
signed document was not served on the applicant and first to third
respondents timeously to allow for their
response.
4.
The issue of
prejudice to the applicant and even to the first to the third
respondent was not dealt with. The applicant was deprived
of
possession of the vehicle in July 2014 and the vehicle has been
stored at a police pound at great prejudice to the applicant.
I
mentioned also the first to the third respondent who have opposed a
matter at great expense to public funds. The fourth respondent
has
not shown diligence in finalising a criminal matter which he set in
motion, and which resulted in this application.
5.
There is further no
application for condonation from the fourth respondent for the late
filing of the answering affidavit.
MANDAMENT
VAN SPOLIE
[11]
Firstly, although heads of argument were prepared for the matter,
there was a concession made by Mr Nonyane for the first to
the third
respondent that in the absence of participation by the fourth
respondent, the others did not have interest in the matter
except
that it was opposed to explain their involvement.
[12]
Although the applicant claimed to be the owner of the vehicle, he was
dispossessed of the vehicle by the police during a seizure
initiated
by the fourth respondent on 25 July 2014. There was no
explanation in their answering affidavits whether the seizure
was in
compliance with the
Criminal Procedure Act 51 of 1977
, this despite
the fact that it was alleged that a motor vehicle theft case was
opened at Honeydew. Masisi had all the information
to enable him to
carry out proper investigations relating to the vehicle, that is, the
ownership certificate, the bank statements
handed over by the fourth
respondent, information on a previous court order.
[13]
A mere perusal of the bank statement should have raised questions
regarding the fourth respondent. Masisi postponed further
investigations due to the fourth respondent’s absence in the
country. Having held further investigations in abeyance, there
is no
explanation why the vehicle was seized at the mere say so of Mosipha
or why it was necessary to seize the vehicle from the
applicant
thereby disturbing him in his undisturbed and lawful possession many
months after first dealing with the matter. There
is no explanation
from Mosipha. This application is not about confirming ownership of
the vehicle, it is about placing the vehicle
back into his
undisturbed possession and this is fortified by the nature of the
orders that are sought in prayers two and three.
JUDGEMENT
ON COSTS
[14]
The first to the third respondent deemed it necessary to oppose the
matter without participation of the fourth respondent or
without any
explanation by the fourth respondent regarding all the allegations
against him. The fact that the second and third
respondents did not
find it necessary to arrest the applicant despite criminal charges
against him was warning enough that they
could have been prudent
enough to approach this matter by abiding the decision of the court.
They opposed and the applicant was
successful and they must pay the
costs. I am however not of the view that punitive costs against them
are deserved.
[15]
In the result the following order is given.
The
respondents are ordered to pay the costs jointly and severally, the
one paying the other to be absolved.
__________
TLHAPI
V.V
(JUDGE
OF THE HIGH COURT)
MATTER
HEARD ON: 13 MAY 2015
JUDGMENT
RESERVED ON: 13 MAY 2015
ATTORNEYS
FOR THE APPLICATION: MKHIZE’S ATTORNEY
ATTORNEYS
FOR THE 1
ST
RESPODENTS: STATE ATTORNEYS
ATTORNEYS
FOR THE 4
TH
RESPONDENTS : NDLOVU ATTORNEYS