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[2015] ZANCHC 52
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Van der Westhuizen v Minister of Safety and Security and Others (2277/2015) [2015] ZANCHC 52 (6 October 2015)
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HIGH
COURT OF SOUTH AFRICA
[NORTHERN
CAPE HIGH COURT, KIMBERLEY]
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Case
No: 2277/2015
Heard:
23-11-2015
Delivered:
11-12-2015
In
the matter between:
W
A VAN DER WESTHUIZEN
APPLICANT
AND
THE MINISTER OF SAFETY AND
SECURITY
1
ST
RESPONDENT
LT. KOL
ROOSA
2
ND
RESPONDENT
CAPTAIN
MEYER
3
RD
RESPONDENT
Coram
:
Kgomo JP
et
Coetzee AJ
JUDGMENT:
LEAVE TO APPEAL
KGOMO JP
1.
This
is application for leave to appeal to the Supreme Court of Appeal
against the judgment of my brother Coetzee AJ, in which I
concurred,
which was delivered on 02 October 2015. We made the following
order which the Minister of Safety and Security
and the police
officers who are cited as respondents wish to have reversed:
“
1.
Die besluit deur die eerste respondent in terme waarvan die Jeep
Wrangler met die registrasienommer [B....]
aan die staat verbeurd
verklaar word en die gevolglike verbeurdverklaring hersien en tersyde
gestel word.
2. Die
respondent die Jeep Wrangler met registrasienommer [B....] aan die
applikant lewer.
3. Die
respondent moet, in terme van Regulasie 56(4) `n onderstelnommer aan
die Jeep Wrangler met registrasienommer
[B....] toeken.
4.
Die respondent die koste van die aansoek betaal.”
2.
What
I wish to deprecate, in the first place, concerning this application
is that: For this straightforward application the
grounds are
needlessly excessive and comprise 10 typed pages; many of the
grounds are repetitive and/or overlap; some
grounds are
argumentative and unduly long and the grounds rather have the
appearance of heads of argument for being liberally interspersed
with
decided cases. In
Herbstein
& Van Winsen, The Civil Practice of the High Courts of South
Africa, Fifth Edition, Vol 2
at p 1158, the authors comment:
“
It has
been held that the grounds of appeal required under rule 49(1)(b)
must be clearly and succinctly set out in clear and unambiguous
terms so as to enable the court and the respondent to be fully
informed of the case which the applicant seeks to make out and which
the respondent is to meet in opposing the application for leave to
appeal.”
3.
In
Songono
v Minister of Law and Order
1996 (4) SA 354
(E) at 385C-H Leach J (then) made this trenchant
remarks in this regard:
“
In
attempted compliance therewith the applicant filed a document headed
'Application for leave to appeal', in which he purported
to set out
the grounds upon which leave to appeal was to be sought. These so-
called 'grounds' constitute a diatribe of some 17
pages criticising
the judgment, analysing (at times incorrectly) certain of the
evidence and the findings made, putting forward
certain submissions
and quoting various authorities. This lengthy, convoluted and at
times disjointed criticism of the judgment
did not clearly and
succinctly spell out the grounds upon which leave to appeal is sought
in clear and unambiguous terms - indeed,
it served more to deceive
---.
Rule 49(3) is
couched in similar terms [as Rule 49(1)(b)] and also requires
the filing of a notice of appeal which shall specify
'the grounds
upon which the appeal is founded'. In regard to that subrule it is
now well established that the provisions thereof
are peremptory and
that the grounds of appeal are required, inter alia, to give the
respondent an opportunity of abandoning the
judgment, to inform the
respondent of the case he has to meet and to notify the Court of the
points to be raised. Accordingly,
insofar as Rule 49 (3) is
concerned, it has been held that grounds of appeal are bad if they
are so widely expressed that it leaves
the appellant free to canvass
every finding of fact and every ruling of the law made by the court a
quo, or if they specify the
findings of fact or rulings of law
appealed against so vaguely as to be of no value either to the Court
or to the respondent, or
if they, in general, fail to specify clearly
and in unambiguous terms exactly what case the respondent must be
prepared to meet
- see, for example,
Harvey
v Brown
1964 (3) SA 381
(E) at 383;
Kilian
v Geregsbode, Uitenhage
1980 (1) SA 808
(A) at 815 and
Erasmus
Superior Court Practice
B1-356-357 and the various authorities there cited.”
4.
There
is obviously no need to rehash the facts and findings of the judgment
of Coetzee AJ because all the material issues raised
in the
application are covered or are answered in the judgment. Three
matters will be briefly dealt with, though.
5.
The
first is that the appellant contend that we erred to have relied on
the Constitutional Court judgment in
Ngqukumba
v Minister of Safety and Security and Others
2014 (5) SA 112
(CC) para 21 to answer the question whether the
vehicle could be restored to the applicant, Mr Van der Westhuizen.
The vehicle
has been owned and possessed by Mr Van der Westhuizen
since 1986 until it was impounded by the police on 27 March 2012; a
period
of 26 years. It would have reached vintage-car status in
earlier years. Not a shred of credible evidence has been
produced
by the police showing that the vehicle is reasonably
suspected to have been stolen. The police have had the vehicle
in their
possession for three years and eight months without a court
order. What more is there to investigate? The opening
sentences
of para 21, which the police wish us to distinguish the
case serving before us from read as follows:
“
[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. Before that enquiry, one is
not in a position to say the applicant's possession
of the vehicle
will be unlawful — it may or may not be, depending on the
result that the enquiry would yield. The question
that arises is: in
proceedings for a spoliation order, is it proper to hold that
enquiry? I say not. That would be enquiring into
the merits of the
lawfulness of the applicant's possession.”
That
enquiry has been held in the present case. We have dealt with
merits. We found that the police case lack merit.
6.
A
second aspect to deal with is that we erred in relying on the
decision of
Minister
Van Wet en Orde en `n Ander v Datnis Motors (Midlands) Edms)
BPK
1989 (1) SA 926
(A) to determine who bears what onus. In
the
Datnis
case
the Court held that the state had to show on a preponderance of
probabilities that the person from whom the object had been seized
could not legally possess it and therefore was not entitled to its
return. At 934J -935G. This determination has not
been
disturbed by the ConCourt in the
Ngqukumba
case.
7.
In
the
Ngqukumba
case
at 119B- 120C (paras 13 and 15) the Court held:
“
[13]
It matters not that a government entity may be purporting to act
under colour of a law, statutory or otherwise. The real issue
is
whether it is properly acting within the law. After all, the
principle of legality requires of state organs always to act in
terms
of the law. Surely then it should make no difference that in
dispossessing an individual of an object unlawfully, the police
purported to act under colour of the search and seizure powers
contained in the Criminal Procedure Act. Non-compliance with
the
provisions of the Criminal Procedure Act in seizing a person's goods
is unlawfull ---.
[15]
It seems to me that on this subject the Supreme Court of Appeal
proceeds from the premise that a tampered vehicle is no different
from an article the possession of which would be unlawful under all
circumstances. That is an erroneous premise because possession
of a
tampered vehicle will be unlawful only if it is 'without lawful
cause'. That leads me to a crucial point of departure. It
is that in
this case we are not concerned with objects the possession of which
by ordinary individuals would be unlawful under
all circumstances.
Had we been concerned with objects of that nature, then the mandament
van spolie might well not be available;
but that issue is not before
us and need not be decided. The fact that we are here concerned with
an article that may be possessed
quite lawfully makes all the
difference. On the assumption that an individual can never possess
heroin lawfully, the Supreme Court
of Appeal's heroin example is not
apt. At the risk of repetition, the simple point of distinction is
that an individual can possess
a tampered vehicle if there is lawful
cause for its possession.”
8.
Adv
C Botha, for the Minister and the police, wishes to scrum away from
the
Ngqukumba
case
but relies on some of the cases which the ConCourt had regard
to in para 5 of its judgment. However, as pointed out
above the
ConCourt specifically overruled their ratio in respect of which the
Supreme Court of Appeal decided that, in similar
manner as the drug
heroin, such a vehicle cannot be lawfully possessed except when it is
cleared or its possessions is regularised
by the police as a point of
departure. The Concourt referral to the following decisions:
Pakule
v Minister of Safety and Security and Another
;
Tafeni
v Minister of Safety and Security and Another
2011 (2) SACR 358
(SCA) ([2011] ZASCA 107);
Absa
Bank Ltd and Another v Eksteen
[2011]
ZASCA 40
;
Basie
Motors Bk t/a Boulevard Motors v Minister of Safety and Security
[2006] ZASCA 35
; and
Marvanic
Development (Pty) Ltd and Another v Minister of Safety and Security
and Another
2007
(3) SA 159
(SCA) ([2006] ZASCA 18).
The
point which Mr Botha wishes to make is obscure and must be rejected.
9.
The
third issue to address is the police’s contention that we erred
in not having considered ourselves bound by the judgment
of the Full
Bench of this Division in
SA
Truck Bodies (Pty) Ltd t/a Trail Star v Minister of Safety and
Security and Another
(2010) JOL 25885
(NCK) (Kgomo JP: with Lacock J
et
Mjali
AJ concurring) where the following is stated at para 21:
“
21.
The next question that calls for determination would be whether the
appellants have shown that they have lawful
cause to possess the
trailers.”
What the Full Bench in
SA
Truck Bodies
(above) was investigating was whether the
appellant in that case has satisfied the requirement enunciated as
follows by Lewis JA
in Marvanic Development (Pty) Ltd &
Another v Mnister of Safety and Security & Another
2007
(3) SA 159
(SCA) at 163B-C (para 11 thereof):
“
[11]
This does not mean that the appellants cannot recover the vehicles at
all: it was common cause that they could have applied
for what is
termed a 'SAPVIN' number for each vehicle from the South African
Police Services and that, when issued, they would
be entitled to
possess lawfully. Regulation 56 of the National Road Traffic
Regulations 2000 provides the means for a vehicle owner
(or person
otherwise entitled to possess the vehicle) to obtain from the police
new engine or chassis numbers where these have
been tampered with,
and a police clearance will be issued to the registering authorities.
The
regulation itself shows precisely what s 68(6)(b) means: until the
regulation has been complied with, possession by anwithout
lawful
cause.
The
appellants have apparently not applied to the police for new chassis
numbers. The remedy is in their hands.”
(Own emphasis).
Be that as it
may, we cannot be bound by a Full Bench (three Judges) decision whose
ratio decision runs counter to SCA or Concourt
judgment in terms of
the precedent system See:
EX
PARTE Minister of Safety and Security and Others: IN RE S v
WALTERS
2002
(2) SACR 105
at p 135d-138c (paras 55-61).
10.
On
11 September 2015 Phatshoane J
et
Mamosebo AJ of this Division delivered a judgment in
Abel
Daniel Ferreira v The Minister of Safety and Security and Another
,
Case No 1696/2015 (unreported). At paras 36 and 37 of that
judgment Phatshoane J held:
“
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 [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.”
The Court set
aside the forfeiture to the state decision by the police and gave
certain directives. The case before us is
on all fours with the
Ferreira
case
,
which I support.
11.
The
Minister and the police have no defence or cogent explanation for
impounding the vehicle
in
casu
.
The conduct of the police is now bordering on being spiteful.
Hopefully the Minister was fully and properly briefed
on this
matter. They cannot confiscate a law-abiding citizen’s
property without good cause or deprive the said Mr Van
der Westhuizen
of his property arbitrarily. This saga has been going on from
27 March 2012 and going for four years. In
the
Ferreira
matter
(
supra
)
the vehicle was impounded on 05 October 2010 by the police.
These type of cases must be disposed of more expeditiously,
for good
reason.
12.
This
whole exercise has now become a waste of tax-payers’ money.
There are no reasonable prospects of a success appeal.
Order
The application for leave to
appeal is dismissed with costs.
__________________
F DIALE KGOMO
JUDGE PRESIDENT
Northern Cape High Court, Kimberley
I concur.
________________
W J COETZEE
ACTING JUDGE
Northern Cape High Court, Kimberley
Counsel:
For
the Applicant:
Adv Reynders
Instructed
by:
ENGELSMAN MAGABANE ATTORNEYS
For
the Respondents:
Adv C H Botha
Instructed
by:
OFFICE OF THE STATE ATTORNEY