Ferreira v Minister of Safety and Security and Another (1696/2011) [2015] ZANCHC 14 (4 September 2015)

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[2015] ZANCHC 14
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Ferreira v Minister of Safety and Security and Another (1696/2011) [2015] ZANCHC 14 (4 September 2015)

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IN
THE HIGH COURT OF SOUTH AFRICA
[NORTHERN CAPE DIVISION,
KIMBERLEY]
CASE
NO: 1696/2011
In
the matter between:
ABEL
DANIEL
FERREIRA

APPLICANT
And
THE
MINISTER OF SAFETY AND
SECURITY

FIRST RESPONDENT
LT-COL
CHRISTO PETRUS
HORAK

SECOND RESPONDENT
Dates of hearing: 20 May 2013; 28
April 2015
Date of Judgment: 04 September 2015
Coram: Phatshoane J
et
Mamosebo
AJ
JUDGMENT:
Phatshoane
J
Introduction
and the Relief Sought:
1.
On 05 October 2010
Lieutenant-Colonel Christo Petrus Horak, the second respondent,
acting in terms of s 31(1) of the Criminal Procedure
Act, 51 of 1977
(the Act),
declared forfeited to the State an International Eagle 9700i Truck
manufactured by Navistar, with registration letters
and number [...]
(the vehicle), registered in the name of Mr Abel Daniel Ferreira, the
applicant. This is an application to review
and set aside this
decision.  The applicant also seeks an order substantially in
the following terms and further ancillary
relief:
1.1
That Lt-Col Horak
issue, for the vehicle, a South African Police Vehicle Identification
Number (SAPVIN);
1.2
That Lt-Col Horak clear
the vehicle pursuant to the provisions of Regulations 56(5)(b) of the
National Road Traffic Regulations
2000, published in the Government
Notice R225 of 2000 (GG20963 of 17 March 2000);
1.3
That Lt-Col Horak
supply the applicant with all the necessary documents, including a
clearance certificate, to allow the applicant
to register the vehicle
pursuant to the provisions of Regulation 56(7) of the National Road
Traffic Regulations; and
1.4
That Lt-Col Horak only
releases the vehicle to the applicant on proof of its registration
with its SAPVIN.
The
issue, the delay, and the twists and turns
2.
This matter turns on a
narrow yet problematic issue of whether the vehicle is identifiable.
Consequently, the resolution
of this problem was protracted by
a series of events leading up to this application and/or attendant
thereto.   The applicant
initially filed an application on
26 October 2010 against the Minister of Safety and Security
(corrected by the respondents to
be the Minister of the Police), the
first respondent in this case, and W/O CG Tiedt of the South African
Police Service (SAPS)
under Case No 1831/2010 and sought
substantially the same relief set out in paras 1.1 to 1.4 above. In
that application the respondents
questioned the applicant’s
locus standi
because the vehicle had already been forfeited to the State. It was
contended that until the decision to forfeit the vehicle was
reviewed
and set aside the prayers sought could not be granted. That
application was postponed
sine
die
and is still
pending.
3.
The present application
was filed on 14 October 2011. It was argued before me and Lacock J on
20 May 2013. Following argument, it
was postponed
sine
die
to allow the
filing of a further affidavit by Mr David Edwin Loakes, a product
manager of Navistar International Trucks SA (Pty)
Ltd, and to afford
the parties the opportunity to resolve or settle the dispute. Loakes
deposed to an affidavit in which he stated
that he had access to the
files and records of Navistar which are kept worldwide. He intimated
that he is able to determine the
original details of all the Trucks
and vehicles that were manufactured by Navistar including the chassis
and engine numbers, irrespective
of where on the globe the vehicles
were located.
4.
On 27 May 2013 Loakes
submitted to us his affidavit in which he had still not addressed the
key issue with regard to whether the
vehicle was identifiable or not.
Accordingly, we advised the parties that we considered referring the
matter for the hearing of
oral evidence, in particular to adduce
Loakes’
viva
voce
evidence. An
invitation was extended to them to submit concise heads by no later
than 28 June 2013 why the matter should not be
referred for oral
evidence. We subsequently reserved our reasons and ordered that:
“
1.
The
matter is postponed to a date to be arranged with the Registrar.
2.
It is directed that oral evidence be heard to determine whether the
vehicle presently
described as International 9700i Eagle Truck with
registration letters and numbers HCF 082 NW, is identifiable as a
specific truck
manufactured by Navistar International.
3.
The deponent [Mr David Edwin Loaks] is ordered to appear in person
and to be
present in Court on the resumption of this matter to be
examined and cross-examined as a witness for purposes of resolving
the
aforesaid issue.
4.
Costs will stand over for
later determination.”
The
application was set down before me and Mamosebo AJ on 28 April 2015.
The
point
in
limine
5.
A point
in
limine
on
lis
pendens
was taken
by Adv Botha, for the respondents, who argued that the previous
application (Case No 1831/2010) and the present traverse
the same
subject-matter, being the release of the same vehicle. He contended
that until such time that the previous application
was withdrawn the
prayers similar to the order sought in the present applications are
lis alibi pendens
and the applicant cannot ask the Court to hear him on the issues. He
therefore moved for the dismissal of the replicated relief.
6.
Adv Killian, for the
applicant, to the contrary, contended that the
lis
pendens
defence
cannot avail the respondents because the
causae
agendi
in both
matters differ materially. She argued that in the first application
the return of the truck was brought on the premises
that its seizure
in terms of s 20 of the Criminal Procedure Act, 51 of 1977 (the Act)
was unlawful and so was its continued possession
whereas the present
application concerns the unlawful forfeiture of the truck in terms of
s 31 of the Act.
7.
In
Nestlé
(South Africa) (Pty) Ltd v Mars Inc
2001 (4) SA 542
(SCA) para 16 Nugent AJA pronounced:
'The
defence of
lis alibi pendens
shares features in common with the defence of
res
judicata
because they have a common
underlying principle, which is that there should be finality in
litigation. Once a suit has been ommenced
before a tribunal that is
competent to adjudicate upon it, the suit must generally be brought
to its conclusion before that tribunal
and should not be replicated
(
lis alibi pendens
).
By the same token the suit will not be permitted to be revived once
it has been brought to its proper conclusion (
res
judicata
). The same suit, between the
same parties, should be brought only once and finally.'
8.
The
lis
alibi pendens
defence would arise when four requirements are met. These are that:
(a) there is litigation pending, (b) between the same parties,
(c)
based on the same cause of action, and (d) in respect of the same
subject-matter. See
Keyter
NO v Van Der Meulen and Another NNO
2014
(5) SA 215
(ECG) at 217E-J para 10 and authorities cited therein.
Save for an order to review and set aside the decision to forfeit the
vehicle
to the State, the order sought in the previous application is
repeated in the present application.  To my mind, the final
determination of this application may render the previous application
effectively moot and
res
judicata
.
Therefore, I am of the view that the requirements of
lis
alibi pendens
were
established. Be that as it may, a Court is vested with a discretion
to stay the proceedings or to hear the matter despite
the earlier
pending proceedings. In
Loader
v Dursot Bros (Pty) Ltd
1948 (3) SA 136
(T) at 138  the Court held:
“
It
is clear on the authorities that a plea of
lis
alibi pendens
does not have the effect
of an absolute bar to the proceedings in which the defence is raised.
The Court intervenes to stay one
or other of the proceedings, because
it is prima facie vexatious to bring two actions in respect of the
same subject-matter. The
Court has a discretion which it will
exercise in a proper case, but it is not bound to exercise it in
every case in which a
lis alibi pendens
is proved to exist . . . .'
9.
The discretion to stay
the proceedings or to hear the matter is determined with reference to
what is just and equitable as well
as the balance of convenience.
In view of the fact that the later proceedings are presumed to be
vexatious, the party who
instituted those proceedings bears the onus
of establishing that they are not vexatious. He or she does so by
satisfying the court
that despite all of the elements of
lis
alibi pendens
being
present, justice and equity and the balance of convenience are in
favour of the subsequent proceedings being adjudicated
upon.   See
Keyter NO
supra
at 218 para 12.
10.
This matter has been
delayed for far too long. At the heart of the contestations is the
right not to be deprived of property without
good cause or
compensation or to have its possession seized arbitrarily. In my
view, considerations of both justice and equity
and the balance of
convenience favour the holistic determination of the disputes. It
serves no purpose to consider this matter
on piecemeal basis by
determining the review and thereafter stay or defer the replicated
relief when the issues raised are clearly
intertwined. I can conceive
of no prejudice.
Consequently,
the point on
lis
alibi pendens
stand to be dismissed.
11.
Section 31(1)(a) and
(b) of the Act
which is relevant here provides that:
“
(1)
(a) If no criminal proceedings are instituted in connection with any
article referred to in section 30 (c) or 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.
(b)
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.”
12.
The
respondents bear the onus to discharge on the balance of
probabilities that the applicant is not entitled to the return of the

vehicle in terms of s 31 on the basis that continued possession will
be unlawful. See
Minister
van Wet en Orde en 'n Ander v Datnis Motors (Midlands) (Edms) Bpk
1989
(1) SA 926
(A). This decision was not followed in the later decisions
of
the SCA only insofar as
it
held that, where a criminal prosecution does not ensue, or is
unsuccessful, after the seizure of property suspected to have been

involved in the commission of a crime, the property must be returned
to the person from whom it was seized
[1]
.
Some
historical background
13.
The applicant purchased
the vehicle in question on 07 December 2007 for an amount of
R159 000.00 at a public auction conducted
by Mitchell’s
Auctioneers. The copy of the invoice for the sale is Annexure “ADF1”
to the founding affidavit.
The vehicle bore the following
identification numbers and letters on the date of purchase: SMG 162
GP; Engine No: 11086117;
and Chassis No: JH570998. It had no factory
tag or sticker but displayed a tag with the words: “Econotest”.
The Econotest
tag carried the same chassis and engine numbers
referred to hereinbefore. The applicant established later on that
Econotest operated
as a private test station in Port Elizabeth during
1993 to 2000. He obtained the affidavit of Mr Erol Roberts (Annexure
“ADF2”),
a manager of Dekra Auto Motors t/a Dekra Neave
(previously Econotest).
14.
Roberts stated that
Econotest manufactured VIN (Vehicle Identification Number) tags on a
regular basis for vehicles presented for
clearance in circumstances
where such vehicles’ original VIN tags were either damaged or
lost. Econotest would only replace
such VIN tags if, on proper
examination of the vehicle, it was established that the chassis
number embossed by the manufacturer
and the information on the
registration certificate corresponded.  Each of the
International Eagle 9700 vehicles had a document
in the inside pillar
of the left door wrapped in a plastic cover reflecting the engine and
chassis numbers, but these documents
were often damaged. Econotest,
at that time, would replace and verify the information by attaching a
VIN tag to the vehicle with
the name Econotest appearing thereon.
15.
The applicant intimated
that he later realized that the engine of the vehicle was defective
and needed to be overhauled. He delivered
it to Choice Diesel Centre
CC, Rustenburg, to inspect and assess the extent of the damage. He
was advised that the engine was irreparable
and needed replacement.
He could not afford a new engine and instructed that a reconditioned
engine be installed, which was done.
He attached the invoice from
Choice Diesel confirming the purchase of the substituted engine.
This fitted reconditioned engine
block displayed its manufacturer’s
engine number: 10928871. The vehicle was tested and cleared by the
appropriate authority
whereafter he registered it with the new engine
number (10928871) and its existing chassis number (JH570998) into his
name. The
certificate of registration appears at Annexure “ADF4”
to the founding papers.
16.
On 12 October 2009 the
investigating officer, W/O Clive Gordon Tiedt, stationed at the
Vehicle Identification Section of SAPS, Upington,
seized the vehicle
and its trailer, then being driven along the Keimos/Upington Road by
the applicant’s driver, Mr Mishack
Mothepu. The seizure of the
trailer, with its own legal problems, is not in issue here. Mothepu
was issued with a Notice informing
him
inter
alia,
that:
16.1
The vehicle was seized
because its engine and/or chassis number had been tampered with;
16.2
This was a vehicle
contemplated in s 68(6)(a)(b) of the National Road Traffic Act, 93 of
1996 (the
National Road Traffic Act);
16.3
That
the seizure was
effected in terms of s 20 of the Criminal Procedure Act, 66 of 1977,
(the Act) which provides that:
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.”
16.4
Mothepu would be
required to submit valid reasons within 30 days why the engine and/or
chassis numbers were tampered with; and
16.5
In the event of
Mothepu’s failure to comply with the admonition referred to in
para 16.4 (above) s 31 of the Act which provides
for the forfeiture
of the vehicles to the State will be invoked.
17.
In response to the
Notice the applicant deposed to an affidavit on 13 October 2009, a
day after seizure of the vehicle, which he
handed over to W/O Tiedt
on the same date.   He, amongst others, informed Tiedt that
he had no knowledge of the change
to the chassis number or the VIN
tag. He did not examine the validity of the VIN tag because he never
gained the impression that
it was not original. Tiedt informed him
that the manufacturer of the vehicle would be required to examine the
vehicle to determine
its model year, engine number and chassis number
in order to establish if these details were not falsified.
18.
The applicant carried
out his own investigative work to ascertain the history of the
vehicle. On 02 December 2009 he was accompanied
by his attorney to
the offices of Capt. De Klerk of the National Vehicle Unit, Pretoria.
De Klerk informed them that the vehicle
was imported to South Africa
and all its import documents were to be found at Somerset West
Traffic Department. The vehicle was
registered in Kuilsrivier in
1996. Despite his best efforts the applicant did not succeed in
obtaining its original import documents.
19.
In his continued quest
the applicant established that the vehicle had previously been seized
by the South African Police (SAPS)
in 2005 and inspected by Detective
Westmaas from Assen (Brits) SAPS.   The previous owner of
the vehicle, Mr Henry John
Teitge, consequently signed a confirmatory
affidavit attached as Annexure “ADF5” to the founding
papers in which he
stated that he purchased this second-hand vehicle
in 2000 from Mr Hennie Botes and Mr Du Plessis of T H Plant Hire,
Brits. It was
financed and inspected by ABSA Bank, who also obtained
its police clearance.  At the time it still bore the Econotest
tag.
In 2005 one of his employees laid a false charge with the
police that he had stolen the vehicle. Three branches of SAPS
examined
the vehicle and returned it to him when they were satisfied
that he acquired it lawfully.   Tietge states that the
vehicle
travelled across the borders to the neighbouring countries.
The police had no quibbles with it at any given time.  In later

years when he decided to dispose of the vehicle Mitchell Auctioneers
sold it for him.
20.
The applicant afforded
W/O Tiedt time to conduct his investigation. A year later, on 13
September 2010, Van Velden-Duffey, the applicant’s
Rustenburg
attorneys, directed a letter to Tiedt requesting him to issue the
SAPVIN number and the police clearance certificate
for the vehicle.
On 05 October 2010 Lt-Col Horak replied to the  attorneys’
letter and informed them that:
20.1
No obligation rests on
SAPS to issue a SAPVIN number;
20.2
The vehicle could not
be identified at the completion of the investigation;
20.3
The manufacturer’s
representative is not in a position to determine the identity of the
vehicle;
20.4
The vehicle remains
unidentified and no one may be in possession thereof in terms of
s
68(6)(a)(b)
of the
National Road Traffic Act; and
20.5
Consequently, the
vehicle is forfeited to the State in terms of
s 31(1)(b)
of the
Criminal Procedure Act, 51 of 1977
.
The
above is the impugned decision now sought to be reviewed and set
aside.
21.
For purposes of the
identity of the vehicle the applicant refers to some documents
contained in the SAPS 430 enquiry docket which
was filed by the
respondents in terms of
Rule 53(1)(b).
One of these documents
is the statement obtained by W/O Tiedt on 10 November 2010, post
forfeiture, from Capt Leketi, the
I/O of Rustenburg when the vehicle
was seized from the previous owner in 2005. Leketi states at para 5
thereof, amongst others,
that the vehicle was not reported or
circulated as stolen on 14 February 2005 when he examined it. At para
7 he intimated that
according to his recollection the factory report
matched the truck Job number, chassis number, make of the truck and
engine number.
At para 10 he went on to say:
“
According
to my observations, the vehicle engine and chassis numbers were
original when the vehicle was seized the chassis and engine
number
plates were original and not tampered with… there were no
visible tampering and/or alterations done on the stamp
engine and
chassis numbers”.
Leketi
further states that he received a factory report which matched the
chassis number, engine number, and JOB number. This factory
report is
not part of the documents before us.
22.
In his grounds of
review the applicant submits that Lt-Col Horak acted unlawfully in
forfeiting the vehicle prematurely to the State;
that he has advanced
no explanation for the unreasonable delay between the seizure and
forfeiture of the vehicle; that he did not
reasonably and diligently
establish the absence of the identity of the person who may lawfully
possess the vehicle at the time
he declared it forfeited; that he did
not establish in any manner that the vehicle was and remained stolen
at the time of the forfeiture;
and that he did not acquaint himself
with the requirements set out in s 31(1)(b) of the Act.
23.
Lt-Col Horak, the
respondents’ deponent, states that in his 28 years of service
in the Vehicle Identification Section as commander
and investigating
officer he gained invaluable experience and attended various training
offered by SAPS and different Manufacturers
of vehicles.  He has
personal knowledge of the nature; form; and placing of unique tag
numbers by various manufacturers, including
Navistar, on their
vehicles. He considers himself an expert in this regard. He is of the
view that the vehicle’s VIN tag
and chassis numbers were
tampered with and changed. Therefore, the vehicle is unidentifiable.
He intimates that since
the seizure of the vehicle the
applicant has not given any lawful reason why he should be in lawful
possession thereof. He says
that it is impossible to determine the
original chassis number which was allocated by the manufacturer to
the vehicle. In his view,
the possibility exists that the vehicle was
stolen, its chassis number changed, and registered with its current
number.
24.
Horak maintains that
Econotest had no authority in terms of the repealed Road Traffic Act,
29 of 1989, and its Regulations to alter
or duplicate and/or replace
the damaged or lost VIN tags of the vehicle. According to him the
SAPVIN system was already in place
in 1993 in terms of which only the
SAPS could issue a SAPVIN to a motor vehicle if the original chassis
number or VIN tag was lost
or damaged. Horak emphasized that, by
issuing a tag which made the chassis number appear to be legitimate
and official, Econotest
allowed the vehicle into the trading sector
and obfuscated its identity and hence ought to be forfeited and
destroyed.
25.
On the face of it, a
tag not affixed by a manufacturer to the vehicle raises a suspicion
and potentially points to some act of criminality.
It was certainly
not in Econotest’s province to put its VIN tag to the vehicle.
This is, however, not the end
of the enquiry because the
applicant can hardly be blamed for the intervention.
26.
Regard being had to the
photos taken by W/O Tiedt, Horak states that the first two letters of
the chassis, “JH”, and
the first digit, “5”,
are not in the same line as the last five digits “70998”.
The “JH5” appears
to be double stamped or punched. Tiedt
etched the numbers for better legibility. According to Horak,
following this process, the
chassis number appears to have been
tampered with. He says Roberts of Econotest or any of the employees
of Econotest ought to have
brought the observable discrepancy to the
attention of SAPS. What is remarkable is that it also escaped
Leketi’s trained
eye that the chassis number was tampered with
when he did the investigation in 2005.  How then can the
applicant be blamed
for this oversight.
27.
Loakes informed W/O
Tiedt that from the enquiries he made at Navistar USA a vehicle had
been manufactured on 18 December 1987 whose
chassis number was
1HSRKGUR4
JH570998
whereas its engine
was 11442295. What is inexplicable is that from the vehicle’s
traceable registration history dating as
far back as 1996 the chassis
number bore only the last 8 digits,
JH570998.
28.
Regulation 56 of the
Regulations promulgated in terms of the National Traffic Act, 93 of
1996 published under GNR 225 of 17 March
2000 sets out a procedure to
be followed by an applicant before a SAPVIN could be allocated to a
vehicle. The Regulations also
prescribe the procedure to be followed
if the engine of the vehicle is replaced. Horak says that the engine
number: 10928671, appearing
on the vehicle, was not issued in
accordance with the procedure set out in the Regulations and cannot
be a number that was allocated
by SAPS. Had the procedure being
followed the engine number would have been composed of 11 characters
(digits and letters) whereas
the SAPVIN number has 17 characters, he
contended.  Horak maintains that by not following the process
the applicant acted
unlawfully and for this additional reason alone
the respondents are entitled to refuse to return the vehicle to him.
29.
There is no indication
from Horak that the police conducted an investigation with regard to
the manner in which the new engine number
came to be embossed on the
vehicle’s engine. The applicant, to the contrary, proffered an
explanation for the change in the
engine number of the vehicle. In
addition, he produced the registration documents to demonstrate that
the change was not brought
about clandestinely so as to conceal the
true identity of the vehicle. The applicant obtained police clearance
as a result of which
the new engine number was accordingly
registered.
30.
Counsel for the
applicant contended that the existing chassis number was enhanced or
reinforced resulting in the double tapping
of the number thereon. She
argued that there is nothing in the Act that forbids the reproduction
of the same number except in an
instance where there is an intention
to deceive or falsify the existing chassis number. Mr Botha
countervailed that the vehicle
remains unidentifiable because no one
can say how the “JH5” was superimposed over the original
chassis number and what
characters were underneath these visible
three characters.
31.
Section 68(6)(a)(b) of
the Road Traffic Act provides that:
“
(6)
No person shall-
(a)
with intent to deceive, falsify, replace, alter, deface, mutilate,
add anything to
or remove anything from or in any other way tamper
with the engine or chassis number of a motor vehicle; or
(b)
without lawful cause be in possession of a motor vehicle of which the
engine or chassis
number has been falsified, replaced, altered,
defaced, mutilated, or to which anything has been added, or from
which anything has
been removed, or has been tampered with in any
other way.
32.
Loakes responded as
follows to our enquiry:
“
The
Court: what I want to establish from you is, the “JH5”,
can it be traced to a single vehicle in the whole world===
Yes, yes
my lady, built by Navistar, yes you can identify the JH5 and the rest
of the series of numbers, appear in our database
as 9700 6x4 setback
axle truck tractor built by Navistar in December 1987 from a company
called Rider Fleet Rental in the United
States of America.”
33.
The JH570998 is a
Navistar unique number issued to the vehicle in question. Loakes’s
evidence runs counter to Horak’s
stance that the vehicle
remained unidentifiable and has therefore to be forfeited.
34.
The applicant maintains
that the forfeiture was premature because when the vehicle was
forfeited on 05 October 2010 the investigation
was incomplete and
remained on-going until 12 December 2011. In this regard the
applicant refers to the e-mails exchanged between
W/O Tiedt and
Loakes wherein, on 27 October 2010 and therefore, post the
forfeiture, Tied requested Loakes to comment on the authenticity
of
the data plate and the place where it had been removed. The applicant
further refers to the affidavit obtained by SAPS on 09
November 2010
from Tietge, the previous owner of the vehicle, and to other
investigations that were conducted after the forfeiture
of the
vehicle. Horak explained that he had enough information at his
disposal to forfeit the vehicle to the State. He says that
the basis
for further investigation after the forfeiture was to find support
for the facts he already had when he forfeited the
vehicle because
the applicant had filed an application with the Court.
35.
There is a legitimate
trade history, contained in the docket, on how the vehicle exchanged
hands from one owner to the other. The
extract from the National
Traffic Information System (eNaTIS) (Annexure RA1) confirms the
history of ownership of the vehicle.
From this history the chassis
and the engine number remained the same. The vehicle has never been
proven to have been stolen. The
plethora of statements from various
previous owners of the vehicle, obtained following the forfeiture of
the vehicle, points to
nothing sinister in the ownership of the
vehicle. Clearly, Horak did not satisfy himself on the identity of
the vehicle before
the forfeiture thereof to the State hence the
ex
post facto
further
investigations. There can be no question that the applicant acquired
the vehicle
bona
fide
in the normal
course of business.
36.
On a conspectus of the
objective facts, it cannot be said that the only reasonable inference
to be drawn is that the chassis number
was tampered with the
intention to deceive or to falsify. That intention is not apparent in
this case. I also do not believe that
Econotest would, if there was
anything untoward, go as far as putting their name to the VIN tag
risking reputational damage. What
is further to the advantage of the
applicant is that he bought the vehicle at an auction sale after it
had gone through several
previous owners over many years and was
cleared countless times by the relevant authorities, including the
police.
To
my mind, there had been in this case a premature forfeiture
declaration of the vehicle; without any proper prior investigation;

at the time the vehicle could hardly have been labelled
unidentifiable. It follows that the decision by Lt-Col Horak stands
to
be reviewed and set aside.
37.
What then remains is
whether the applicant, having acquired lawful ownership of the
vehicle, had lawful cause to possess it in circumstances
where there
was an enhancement or tampering with the chassis number. The answer
to this question is to be found in
Ngqukumba
v Minister of Safety and Security and Others
2014
(5) SA 112
(CC)
.
That case concerned
whether s 68(6) precluded an order in spoliation proceedings for the
restoration of possession of a tampered-with
motor vehicle which had
been unlawfully seized by the police. At 120F – 122D (paras
18-21) the Court decided:
[18]
Nothing tells me that ss 68(6)(b) and 89(1) are plainly intended to
alter the common law. There would be disharmony between
these
sections, on the one hand, and the availability of the
mandament
van spolie
, on the other, only if s 68(6)(b) did not have the
phrase 'without lawful cause'. Thus the sections must be read not to
oust the
normal operation of the
mandament van spolie
. This
reading promotes the spirit, purport and objects of the Bill of
Rights and, therefore, conforms to the provisions of s 39(2)
of the
Constitution. This I say because possession 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. Not surprisingly, s 39(3) of
the Constitution
recognises the existence of rights and freedoms created by the common
law if they are not inconsistent with the
Constitution.
[19]
This reading of the two sections does not unduly thwart effective
policing. Rather, it enjoins police to act not only in accordance

with the
Criminal Procedure Act but
with the Constitution as well. In
the face of the privacy right as also the right to dignity, which are
closely linked, it is not
overly restrictive to require of police to
comply strictly with search-warrant requirements. Where there is a
need for swift action,
the police can always invoke
s 22
of the
Criminal Procedure Act. Strict
compliance with the Constitution and
the law will not hamper police efforts in stemming the scourge of
crime.
[20]
Without doubt the police play an important role in combating and
preventing crime, conducting criminal investigations, maintaining

public order, protecting and securing the inhabitants of South Africa
and their property, and upholding and enforcing the law.
Their
endeavours in this regard should not be interfered with unduly.
However, they, like everyone else, are subject to the Constitution,

in particular — for present purposes — the rule of law. A
failure to hold them to the Constitution strictly may have
negative
consequences: it may encourage them to be a law unto themselves.
After all, police excesses are not unknown. Reading ss
68(6)(b) and
89(1) in a manner that ousts the
mandament van spolie
may lead
to a culture of impunity amongst police. That is at odds with
constitutionalism.
[21]
Possession of the vehicle by the applicant pursuant to its return in
terms of a court order would be unlawful only if it were
established
that he did not have lawful cause to possess it.
That
is a conclusion that can only be reached after an enquiry into the
facts surrounding the applicant's possession
.
”
(Emphasis added)
38.
The “enquiry into
the facts surrounding the applicant’s possession” has
already been made in this matter. The
conclusion can therefore be
justifiably reached that the applicant is entitled to own and possess
the vehicle. Regulation 56 of
the National Road Traffic Regulations
2000 set out the procedure to be followed for a vehicle owner to
obtain from the police the
new engine or chassis numbers where these
have been tampered with. Therefore, the proper cause to follow is
compliance with Regulation
56. The secondary relief sought by the
applicant must also succeed.
39.
I am satisfied that
costs of the application should include the reserved costs of 20 May
2013.
In
the result I make the following Order:
1.
The decision of Lt–Col
Christo Petrus Horak, the second respondent, taken on 05 October
2010, to declare forfeited to the
State the International Eagle 9700i
motor vehicle with registration letters and numbers HCF 082 NW, is
reviewed and set aside.
2.
That the second
respondent, or in his absence a substitute police officer, issue
a South African Police Vehicle Identification
Number (SAPVIN) to the
International Eagle 9700i motor vehicle with registration letters and
numbers [...](“the vehicle”)
3.
That the second
respondent or his substitute clear the vehicle pursuant to the
provisions of Regulation 56(5)(b) of the National
Road Traffic
Regulation 2000, published in the Government Notice R225 of 2000
(GG20963 of 17 March 2000) and issue a Clearance
Certificate for it.
4.
That the Second
respondent or his substitute issue to Mr Abel Daniel Ferreira, the
applicant, all the necessary documents, including,
but not limited
to, the Clearance Certificate to allow the applicant to register the
vehicle pursuant to the provisions of Regulation
56(7) of the
National Road Traffic Regulations;
5.
That the second
respondent or his substitute comply with paragraphs 2, 3, and 4 of
this order within 30 days from date of the order;
6.
That the second
respondent or his substitute release the vehicle into the possession
of the applicant immediately upon delivery
of proof of the
registration of the vehicle with its SAPVIN;
7.
The first and second
respondents are to pay costs of the application including the
reserved costs of 20 May 2013, jointly and severally,
the one paying
the other to be absolved.
____________________________
PHATSHOANE
J
NORTHERN
CAPE DIVISION
I
concur
_____________________________
MAMOSEBO
AJ
NORTHERN
CAPE DIVISION
Appearance
for the applicant :  Adv E. Killian
Instructed
by Van Der Wall & Partners
Appearance
for the first and second respondents: Adv C.H. Botha
Instructed
by the State Attorney
[1]
See
Marvanic
Development (Pty) Ltd and Another v Minister of Safety and Security
and Another
2007 (3) SA 159
(SCA) at 162 paras 9 and 10