Marvanic Development (Pty) Ltd and Another v Minister of Safety and Security and Another (232/05) [2006] ZASCA 18; 2007 (3) SA 159 (SCA) (20 March 2006)

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[2006] ZASCA 18
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Marvanic Development (Pty) Ltd and Another v Minister of Safety and Security and Another (232/05) [2006] ZASCA 18; 2007 (3) SA 159 (SCA) (20 March 2006)

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THE SUPREME COURT OF
APPEAL
OF
SOUTH AFRICA
CASE
NO: 232/05
Reportable
In
the matter between
MARVANIC
DEVELOPMENT (PTY) LTD First Appellant
USEFUL
TRADING 16 (PTY) LTD t/a VAAL
BRICKS Second
Appellant
and
MINISTER
OF SAFETY AND SECURITY First Respondent
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS
Second Respondent
Coram
:
Harms, Zulman, Farlam, Lewis JJA, Maya AJA
Heard:
2
March 2006
Delivered: 20
March 2006
Summary:
Section 68(6)
of the
National Road
Traffic Act 93 of 1996
prohibits the possession of vehicles where
their engine or chassis numbers have been falsified. Where vehicles
are seized by the
police, the persons from whom they have been seized
may not, where they are not prosecuted for any offence, claim return
of the vehicles
simply by reason of their ownership. Possession while
the falsification still exists is ‘without lawful cause.’
Neutral citation: This case may be cited as
Marvanic
Development (Pty) Ltd v Minister of Safety and Security
[2006]
SCA 20 (RSA).
JUDGMENT
LEWIS JA
[1] This appeal concerns s 68(6) of the National Road Traffic Act 93
of 1996 (‘the Act’). Section 68 deals in general with unlawful
acts in relation to registration plates, registration numbers and
registration marks. Subsection 6 provides:
‘
No person shall –
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
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.’
In terms of s 89 of the Act a contravention of s 68(6) amounts to a
criminal offence, rendering the accused liable on conviction
to a
fine or imprisonment not exceeding a period of three years.
[2] The
appellants in the matter sought by way of urgent application against
the respondents, the Minister of Safety and Security
and National
Director of Public Prosecutions, the return of two vehicles –
heavy-load semi-trailers – that had been seized
and impounded by
members of the South African Police Services on 8 July 2004. The
second respondent did not oppose the application.
I shall refer to
the first respondent simply as ‘the respondent’.
[3] The
Johannesburg High Court (Van Oosten J), relying on s 68(6), refused
the application on the basis that the registration and
chassis
numbers of both vehicles had been falsified and that the return to
the appellants would have entailed a contravention of
s 68(6)(b)
which requires that there be ‘lawful cause’ for the possession of
any vehicle. The appeal lies with the leave of this
court.
[4] The
trailers were seized by the police from the premises of the second
appellant, trading as ‘Vaal Bricks’, where a brick
manufacturing
plant is operated. The police had gone to the premises to search for
stolen tyres. They noticed that the two trailers
had the identical
registration and chassis numbers. Further investigation revealed that
although the trailers bore the chassis plates
of the manufacturer,
Henred Freuhauf, they were not Henred Fruehauf trailers.
[5] Criminal
charges were laid against the appellants for being in possession of
stolen property, and for fraud. These were subsequently
withdrawn on
the basis that there was insufficient evidence to prove the charges.
The appellants claim return of the vehicles on
the basis of
s
31(1)(a)
of the
Criminal Procedure Act 51 of 1977
which provides that
if no criminal proceedings are instituted in connection with any
article seized it shall be returned to the person
from whom it was
seized. (The vehicles were presumably seized in terms of
s 20
of the
Criminal Procedure Act which
permits seizure where articles are
reasonably believed to have been concerned with the commission of an
offence, or evidence of one.)
[6] The
appellants argue that they are entitled to return of the vehicles
since they had acquired ownership of them: there is thus
‘lawful
cause’ for their possession. They also claim a lien in respect of
improvements effected by them to the vehicles. The
High Court
correctly found that there was no evidence of the improvements
allegedly effected, and thus no lien. But even if that
were not the
case, one cannot have a lien over one’s property, and the claim was
not made in the alternative on the basis that
the appellants were not
the owners. I shall not deal further with the claim to a lien.
[7] There
are several problems with the affidavits deposed to for the
appellants. There is also a dispute of fact in respect of the
vehicle
claimed by the second appellant. I shall deal first, however, with
the meaning of ‘without lawful cause’ in s 68(6) of
the Act and
its implication for the appellants.
[8] The
appellants contend that simply by virtue of their ownership of the
vehicles their possession would be lawful if the vehicles
were
returned to them. At the same time, they tell the court that the
vehicle registration and chassis numbers were falsified by
a foreman
of the brickworks (who is nowhere identified) ‘in an attempt to
utilise the trailer economically’. They thus admit
the deception
and falsification, albeit claiming ignorance of the fact of
falsification at the time of the seizure. But irrespective
of their
knowledge, it seems to me that the purpose of s 68 is to prevent
people, including owners of vehicles, being in possession
of, and
driving, vehicles that have been tampered with in the ways detailed
in the section. The section makes possession that might
otherwise be
lawful unlawful. At the time when the vehicles were seized their
possession was thus ‘without lawful cause’ even
if the appellants
were also the owners. The fact that the vehicles are seized does not
mean that their return would make possession
lawful.
[9] The
appellants rely on a number of decisions in which it has been 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. In particular, reliance was placed on
Minister van Wet en Orde v Datnis Motors (Midlands) (Edms) Bpk
1
in which it was held that stolen vehicles must be returned to the
people from whom they had been seized where the State has not proved
on a balance of probabilities that the possession was not legal.
[10] These
cases were decided, however, before the Act was passed.
2
In my view, s 68(6) was clearly designed to change the law in this
regard. It expressly precludes possession of vehicles in particular
circumstances, which the appellants admit to have been present. The
mischief that the legislation sought to prevent was the possession,
and thus the use, of vehicles where there has been tampering with
engine or chassis numbers, almost invariably because the vehicles
have been stolen. The appellants’ possession would thus be ‘without
lawful cause’ in contravention of s 68(6). I emphasise
that it is
not possession of the vehicle per se that is unlawful: it is
possession of a vehicle with false engine or chassis numbers
that is
‘without lawful cause’. The phrase ‘without lawful cause’ is
not to be equated with the common law
concept of
justa causa possessionis.
If it were, then the phrase would be
superfluous, and there would be no means of preventing the possession
of vehicles that had been
tampered with by anyone who would otherwise
have a right to them, such as an owner, pledgee or lessee. The very
purpose of s 68(6)
is to prevent possession until the position has
been rectified. It is not simply to render the possession a criminal
offence. If
it were then the only person who would be affected by the
section would be a thief, who would not in any event possess with
lawful
cause. The section would, if that were the interpretation, be
meaningless.
[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 any person other
than the police is without lawful cause.
The appellants have
apparently not applied to the police for new chassis numbers. The
remedy is in their hands.
[12] There
are other reasons why the appeal must fail. First, the deponent to
the founding affidavit, a Mr Freitas, does not allege,
let alone
prove, the basis of his authority to depose to it in respect of
either of the appellants. Secondly, the right of the second
appellant
to the vehicle claimed by it is in dispute: while Freitas alleges a
sale to the second appellant, the respondent disputes
that it is the
owner. The vehicle is registered in the name of a different entity
and the documents used by Freitas to show that
the second appellant
had purchased it reflect a different purchaser. Freitas does not deal
with the respondent’s allegation in
reply. Nor was there any
reference to oral evidence to resolve the dispute. The first
appellant’s claim to its vehicle is also
suspect (it was registered
in the first appellant’s name before the sale to the first
appellant) but ownership of this vehicle
is not disputed by the
respondent.
[13] Accordingly
the high court’s refusal of the application was correct.
[14] The
appeal is dismissed with costs, including the costs occasioned by the
use of two counsel.
_____________
C H Lewis
Judge of
Appeal
Concur: Harms
JA
Maya AJA
FARLAM JA
[15] I agree that the appeal in this matter must be dismissed with
costs and I agree in this regard with what is said in para 12
of the
judgment of my colleague Lewis, which I have had the advantage of
reading. I do not agree, however, with the conclusion to
which she
has come regarding the interpretation of
s 68(6)(b)
of the
National
Road Traffic Act 93 of 1996
.
[16] At
the outset it must be pointed out that
s 68(6)(b)
substantially
re-enacts the provisions of s 125(5)(b) of the Road Traffic Act 29 of
1989, which it repealed. It is accordingly incorrect
to say, as my
colleague does in para 10 of her judgment, that s 68(6) was ‘clearly
designed to change the law’ as laid down in
the cases on which the
appellant relied. It is true that they were all decided before the
1996 Act was passed (except for
Tsiane v Minister of Safety and
Security
2004 (1) SACR 470
(T) which was decided after the Act
was passed but did not refer to it) but it must be borne in mind that
it is also correct to say
that (save for
Minister van Wet en Orde
v Datnis Motors (Midlands) Edms Bpk
1989 (1) SA 926
(A)) they
were decided after s 125 (5) of the 1989 Act was already in operation
and that they did not refer to it.
[17] Section
125(5)(b) of the 1989 Act was considered by Jafta J in
Dyani v
Minister of Safety & Security and Others
2001 (1) SACR
634(Tk)
at 640f-i (para 17), where the following was said:
‘
the
phrase “without lawful cause” is not defined in the Act and
therefore it must be given its ordinary meaning. Ordinarily, it
may
mean that the possession should not be contrary to the law. Put
differently, that such possession must be permitted by the law
or
recognised by it.
In casu
the applicant claims the ownership
of the motor vehicle in question on the basis that he purchased it
from Mbambonduna. Attached to
the founding affidavit is a copy of the
written sale agreement between the applicant and Mbambonduna
pertaining to the sale of the
vehicle in question and such agreement
was signed by both the seller and the purchaser. This, if
established, may prove lawful cause
for the applicant’s possession
of the vehicle provided Mbambonduna had authority to sell it.’
[18] In my opinion it is instructive to read s 68(6)(b) in
conjunction with s 68(2)(b) and (3)(b). It is convenient at this
stage
to quote subsecs (2), (3) and (6) of s 68 in full. They read as
follows:
‘
(2) No person shall –
(a) falsify or counterfeit or, with intent to deceive,
replace, alter, deface or mutilate or add anything to a licence
number or a
licence mark or a similar number or mark issued by a
competent authority outside the Republic; or
(b) be
in possession of such number or mark which has been falsified or
counterfeited or so replaced, altered, defaced or mutilated
or to
which anything has been so added.
(3) No person shall –
(a) falsify or counterfeit or, with intent to deceive,
replace, alter, deface or mutilate or add anything to a certificate,
licence
or other document issued or recognised in terms of this Act;
or
(b) be
in possession of such certificate licence or other document which has
been falsified or counterfeited or so replaced, altered,
defaced or
mutilated or to which anything has been so added.
.
. .
(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.’
[19] It
will be seen that subsections (2)(b), (3)(b) and (6)(b) all create
possession offences. Subsection (2)(b) and (3)(b) make
it offences to
possess a licence number, licence mark, motor certificate, motor
licence or other document issued or recognised in
terms of the Act
which has been falsified, counterfeited, replaced, altered, defaced,
mutilated or added to. Possession simpliciter
of such a number, mark
or document is penalised. On the other hand, subsection (6)(b) which
deals with motor vehicles does not penalise
possession simpliciter.
It only penalises such possession where the possessor does not have
lawful cause to possess. In my view it
is not correct to say, as my
colleague does in para 10 of her judgment, that ‘it is not
possession of the vehicle
per se
that is unlawful: it is
possession of a vehicle with false engine or chassis numbers that is
“without lawful cause”.’ That paraphrase
of the section is not
correct.
[20] In
order to interpret subsection (6)(b) one has to give a meaning to the
words ‘without lawful cause’: one cannot interpret
subsection
(6)(b) in a way which renders them superfluous. If that had been the
legislator’s intention subsection (6)(b) would
have read as do
subsections (2)(b) and (3)(b). Parliament clearly recognised that
where one is dealing not with numbers, marks and
documents, which
have no value in themselves, but with motor vehicles, which are
valuable pieces of property, possession simpliciter
could not be
rendered unlawful and criminalised. The question that arises is: what
possessors of what one may call mutilated motor
vehicles did
Parliament intend should not be hit by the prohibition contained in
subsection (6)(b)? or, to put the question differently,
what lawful
cause had to be present so that possession of a mutilated vehicle
would not be penalised? The difficulty arises from
the fact that the
subsection is ambiguous because the lawful cause referred to can be
either cause simply to possess the vehicle
concerned or cause to
possess the vehicle in its mutilated state. I do not think that the
latter is likely. Prima facie the only
persons who would fall
thereunder would be the police. But Parliament clearly did not think
it necessary to provide for possession
by the police in cases covered
by subsection (2)(b) and (3)(b). In my opinion it is more likely that
the legislator considered that
provision had to be made for persons
such as owners, pledgees or lessees in cases where engine and chassis
numbers have been tampered
with.
[21] Moreover
it is not necessary to interpret subsection 6(b) in the manner
suggested. This is because mutilated vehicles are covered
by
regulation 56(3)(e), (4), (5), (6), (7) and (8) of the National Road
Traffic Regulations 2000 published in Government Notice R225
of 2000
(Government Gazette 20963 of 17 March 2000). These regulations came
into operation on 1 August 2000, the same day as the
1996 Act. The
regulations require the ‘title holder’
3
of a motor vehicle of which the chassis number or the engine number
has been altered, defaced or obliterated to tender the vehicle
to the
South African Police Service (reg 56(4)). The ‘title holder’ must
then cause the number issued by the Police to be cut,
stamped,
embossed on or permanently affixed to the vehicle (reg 56(5)(a)) and
obtain a clearance from the Police in respect of the
number so issued
(reg 56(5)(b)). Provision is also made for the clearance to be
furnished to the registering authority so that a
new registration
certificate can be issued (reg 56(7) and (8)). Failure by the ‘title
holder’ to comply with his or her obligations
under the regulation
is a criminal offence (s 89(1) of the Act, read with the definition
in s 1 of ‘this Act’, which includes
the regulations).
[22] Furthermore
it is in accord with the presumption against changing the common law
more than is necessary (see, eg,
Dhanabakium v Subramanian
1943
AD 160
at 167) and with the rule that penal provisions are to be
construed strictly (see, eg,
R v Milne and Erleigh
(7)
1951
(1) SA 791
(AD) at 823B-F).
[23] I am
unable to agree with my colleague that the regulation supports her
interpretation of s 68(6)(b). On the contrary I think
that it shows,
as I have said, that it is not necessary to interpret the subsection
as broadly as she has done because the mischief
associated with the
possession of what I have called mutilated vehicles is effectively
combated by the regulation itself, which I
have pointed out is backed
by a criminal sanction. I am accordingly of the view that the
interpretation given by Jafta J to the phrase
‘without lawful
cause’ in s 125(5)(b) of the 1989 Act in
Dyani v Minister of
Safety and Security and Others, supra,
was correct and applies to
that phrase as it appears in s 68(6)(b) of the 1996 Act.
[24] In
view of my conclusion that the appellants had to fail at the first
hurdle, namely Freitas’s authority to depose to the founding
affidavit on behalf or the appellants, it is unnecessary to consider
this aspect of the case further.
……………..
IG FARLAM
JUDGE OF APPEAL
CONCURS
ZULMAN JA
1
1989
(1) SA 926
(A). See also
Choonara v Minister of Law and Order
1992 (1) SACR 239
(W) and
Booi v Minister of Safety and Security
1995 (2) SACR 465
(O).
2
Tsiane
v Minister of Safety and Security
2004 (1) SACR 470
(T) was decided after the Act was passed, but
without reference to it.
3
Ie
‘the person who has to give permission for the alienation of [the]
vehicle in terms of a contractual agreement with the owner
of [the]
vehicle; or the person who has the right to alienate [the] vehicle
in terms of the common law and who is registered as
such in
accordance with the regulations’: see definition of ‘title
holder’ in s 1 of the Act.