Basie Motors Bk t/a Boulevard Motors v Minister of Safety and Security (135/05) [2006] ZASCA 35; [2006] SCA 35 (RSA) (28 March 2006)

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[2006] ZASCA 35
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Basie Motors Bk t/a Boulevard Motors v Minister of Safety and Security (135/05) [2006] ZASCA 35; [2006] SCA 35 (RSA) (28 March 2006)

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REPUBLIC
OF SOUTH AFRICA
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
REPORTABLE
Case
number: 135/05
In
the matter between:
BASIE
MOTORS BK
t/a
BOULEVARD MOTORS
Appellant
and
MINISTER
OF SAFETY AND SECURITY
Respondent
CORAM
:
MPATI
DP, SCOTT, CAMERON, NUGENT and HEHER JJA
HEARD
:
3
MARCH 2006
DELIVERED
:
28
MARCH 2006
Summary:
Search
and seizure – application in terms of
s 31(1)(a)
of the
Criminal
Procedure Act 51 of 1977
for return of vehicles seized by police in
terms of
s 20
– whether applicant may lawfully possess the vehicles
–
s 68(6)(b)
of
National Road Traffic Act 93 of 1996
prohibits
possession, without lawful cause, of vehicles of which the engine or
chassis number tampered with – mere claim of ownership
not enough
to constitute ‘lawful cause’ and thus continued possession of
such vehicles.
Neutral citation:
This
case may be cited as
Basie Motors Bk t/a Boulevard Motors v
Minister of Safety and Security [2006] SCA 35 (RSA)
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
MPATI
DP:
[1] The appellant, a
motor vehicle dealership from Pretoria, purchased two used Toyota
Land Cruiser vehicles from one Mr Abdul Usman
on 11 and 12 October
1999 respectively. The appellant was, on both occasions, represented
by its manager, Mr Johannes Andries Booysen.
Usman is alleged to be
the sole director of a certain motor vehicle dealership in Gaborone,
Botswana, and the owner of another motor
vehicle dealership in
Vereeniging, namely Pro Speed Motors. The vehicles were each priced
at R325 000. It was agreed, in respect
of each vehicle, that the
appellant would make an initial payment of R200 000, the balance of
the purchase price to be paid once
a motor clearance had been
obtained from the South African Police Service (SAPS). A police
clearance certificate is required for
re-registration of a vehicle.
[2] The first amounts as
agreed were paid by separate cheques, dated 13 October 1999 and 22
October 1999 respectively, in favour of
Pro Speed Motors. Clearance
certificates were obtained by the appellant from the anti-theft unit
of the SAPS, Pretoria West. The
clearance certificates confirmed
that the vehicles had not been reported as stolen in South Africa.
Thereafter, the balance of the
purchase price was paid, again by
separate cheques dated 22 and 23 October 1999 respectively, in favour
of Pro Speed Motors. The
vehicles were, in turn, sold by the
appellant; one on 21 October 1999 and the other on 26 January 2000.
On 15 September 2000 one
of the vehicles was seized from its new
owner by Detective Sergeant Pienaar of the SAPS, who had discovered,
upon inspection, that
there had been tampering with its chassis
number. The warrant in terms of which this vehicle was seized states
that the vehicle
was required for purposes of proof of the commission
of an alleged offence (‘as getuienis by die bedoelde verrigtinge
nodig is,
en wat . . . tot bewys kan strek van die vermeende pleging
van ‘n misdryf’).
[3] On 7 November 2000
the second vehicle was seized from its new owner by Inspector
Rheeder. It had also been discovered, upon inspection
of the vehicle
at the premises of the appellant – arrangements had been made with
the new owner to take it there – that there
had also been tampering
with its chassis number. According to the warrant of search and
seizure, the seizure was done in terms
of s 20 of the Criminal
Procedure Act 51 of 1977 (the Act), the vehicle would be retained in
police custody ‘in accordance with
section 30’ of the Act, and
the addressee (the appellant) is ‘notified to prove, within thirty
(30) days, the lawful cause why
the engine and/or chassis number(s)
of the vehicle in question had been tampered with failing to do so
will have the effect that
s 31 of [the Act] will be implemented’.
[4] Because of the
seizure of the vehicles the appellant refunded the purchasers and
‘ownership’ of them reverted to it. The
issue in this appeal is
whether the appellant is entitled to possession of the vehicles.
[5] On 11 October 2000
the appellant’s attorneys wrote to the respondent enquiring as to
the progress of criminal investigations
relating to the first vehicle
and demanding its return within 30 days of the date of the letter,
failing which a court order to such
effect would be sought. A letter
from the SAPS, in response, referred the appellant to the provisions
of s 125 of the Road Traffic
Act 29 of 1989 (Road Traffic Act), which
rendered unlawful the possession of a vehicle of which the chassis
number had been tampered
with, defaced or falsified. (The Road
Traffic Act was repealed by the National Road Traffic Act 93 of 1996
(National Road Traffic
Act) with effect from 1 August 2000.) The
letter further stated that the vehicle would be retained by the SAPS
in terms of s 30
of the Act until it may be dealt with in terms of s
31.
[6] When the return of
the second vehicle was similarly demanded, the demand drew no
response from the respondent. The appellant
instituted motion
proceedings in the Pretoria High Court for an order directing the
respondent to forthwith return the motor vehicles
to it, and for
other ancillary relief. The respondent opposed the order sought, but
RD Claassen J granted the order as prayed.
He subsequently granted
leave to appeal to the Full Court, which, by a majority (Motata and
Shongwe JJ), allowed the appeal and substituted
the decision of the
court of first instance with one dismissing the application with
costs. The further appeal is with the special
leave of this court.
[7] The vehicles were
seized in terms of s 20(b) of the Act, which authorizes the State to
seize an article ‘which may afford evidence
of the commission or
suspected commission of an offence, whether within the Republic or
elsewhere’. The appellant’s claim for
the return of the vehicles
is based on s 31(1)(a), which provides that if no criminal
proceedings are instituted in connection with
any article seized, the
article shall be returned to the person from whom it was seized, if
such person may lawfully possess it.
The appellant avers in its
founding affidavit, which was deposed to by Booysen on 11 March 2003,
that a reasonable period has elapsed
for the finalisation of any
police investigation into the alleged theft of the vehicles –
presumably inferred from the fact that
the chassis numbers were
tampered with – and for the institution of criminal proceedings.
[8] A senior
superintendent in the SAPS, Martinus Jacobus Taljaard, deposed to the
opposing affidavit on behalf of the respondent.
He details therein
the course of investigations by members of the SAPS, which revealed
the involvement of syndicates in the alleged
theft, on a large scale,
of used vehicles from Japan. These vehicles are allegedly exported
to Dubai, where changes to them, such
as the alteration of chassis
numbers, are effected, whereafter they are further exported to
various target countries around the world.
Taljaard avers further
that the two vehicles concerned in this matter were stolen in Japan
and exported to the Republic via Dubai
where their chassis numbers
were altered. The allegation that the two vehicles were stolen in
Japan is based on information, most
of which admittedly being
hearsay, which counsel for the appellant submitted should be struck
out. As will become evident later
in this judgment, it is not
necessary to consider the admissibility or otherwise of the hearsay
evidence. Suffice it to say that
RD Claassen J excluded the evidence
relating to the allegations of theft of the two vehicles on grounds
that it was inadmissible
hearsay, the respondent having failed to
explain why affidavits alleging the theft had not been obtained from
the original owners.
The learned judge accordingly found that theft
had not been proved hence the order for the return of the vehicles.
The minority
(Smit J) in the court below took the same view regarding
the evidence of the alleged theft.
[9] Taljaard
also refers in the opposing affidavit to the provisions of
s 68(6)(b)
of the
National Road Traffic Act, which
are in the following terms:
‘
No person shall –
. . .
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.’
(Emphasis provided.)
In terms of
s 89
of the
National Road Traffic Act a
contravention of
s 68(6)
constitutes a
criminal offence for which an accused is liable on conviction to a
fine or imprisonment not exceeding a period of three
years.
[10] The court of first
instance did not consider the provisions of
s 68(6)
of the
National
Road Traffic Act. The
minority (Smit J) in the court below did. He
found that although Taljaard makes mention of the section in the
opposing affidavit,
the appellant does not allege on oath that
reliance was placed on it for the proposition that the appellant’s
possession of the
vehicles would be unlawful. But Smit J held, in
any event, that the respondent relied, insofar as the allegation of
unlawful possession
is concerned, only on the alleged theft of the
vehicles in Japan; that the appellant states in its founding
affidavit that it had
purchased the vehicles bona fide; that before
it in turn resold the vehicles, it established from the police that
the vehicles had
not been reported as stolen in South Africa; that
it was only after it had established that fact that it proceeded to
sell them,
and that such conduct brought about the ‘lawful cause’
as contemplated by the section. The majority, on the other hand,
said
the following in this regard:
‘
It
is possible that immediately after [the appellant] had purchased
these vehicles [it] would have had a “lawful cause” but now
that
[it] is aware of the fact that the chassis numbers have been tampered
with, [it] cannot be heard to raise the purchase of the
vehicles as a
lawful cause. It was argued that after the purchase of the vehicles
the respondent approached the police to obtain
a clearance which was
issued to [it]. The said clearance only meant that no theft case had
been reported on such vehicles. Understandably
so, because if there
was theft, it must have taken place in Japan and not in South Africa.
On this basis alone the appeal must succeed.
’
[11] In this court
counsel for the appellant submitted that where a person in the
position of the appellant was a bona fide purchaser
of the vehicles
and resold them in terms of a bona fide sale transaction, those sales
constituted ‘lawful cause’ for their possession,
firstly by the
appellant and thereafter by the subsequent purchasers. In
Marvanic
Development (Pty) Ltd v Minister of Safety and Security
(unreported
judgment delivered on 20 March 2006 in case no 232/05), which was
argued a day before the hearing of this appeal, Lewis
JA, writing for
the majority, said:
‘
[I]t
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.’
1
In that case the
appellants had sought an order for the return of two trailers that
had been seized when the police noticed that they
had identical
registration and chassis numbers. The appellants had argued that
they were entitled to the return of the trailers
since they had
acquired ownership of them and thus had ‘lawful cause’ for their
possession.
[12] In
the instant case counsel for the appellant also argued that on a
proper interpretation of
s 68(6)(b)
the onus is on the respondent to
establish that the appellant’s possession would be ‘without
lawful cause’ were the vehicles
to be returned to it. For this
proposition counsel relied on the judgment of this court in
Minister
van Wet en Orde v Datnis Motors (Midland) (Edms) (Bpk)
2
,
in which it was held that an object (which had been seized) must be
returned to the person from whom it had been seized unless that
person’s possession of the object would be unlawful, and that the
State had to show on a balance of probabilities that possession
of
the object by such person would be unlawful. Lewis JA said the
following in the
Marvanic
case, where reliance was also placed
on
Datnis Motors
:
‘
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.’
3
[13] Farlam
JA (Zulman JA concurring) disagreed with Lewis JA’s conclusion
regarding the interpretation of the subsection. The
true position,
he said, is that possession of a vehicle with false engine and
chassis numbers ‘without lawful cause’ is unlawful
and criminal,
which means that ‘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’.
4
He then agrees with the interpretation given by Jafta J to the
phrase ‘without lawful cause’ in s 125(5)(b) of the Road Traffic
Act (which is substantially re-enacted by
s 68(6)(b)
of the
National
Road Traffic Act) in
Dyani v Minister of Safety and Security
5
,
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.’
[14] It
is well to remember that we are not here dealing with items that had
been spoliated from the appellant. The two vehicles
were seized by
the SAPS on the strength of search warrants issued under s 20 of the
Act and the claim for their return is based on
s 31(1)(a).
Ordinarily, therefore, and subject to questions of whether the
vehicles are still required for the purposes for which
they were
seized, they should be returned to the appellant, but only if it may
lawfully possess them (s 31(1)(a)). In this regard
I agree with
Farlam JA that the law as laid down in
Datnis Motors
6
relating to the return of an object seized under s 20 of the Act,
has not been changed by
s 68(6)(b)
of the
National Road Traffic Act
as
suggested by Lewis JA. Quite in line with what is now provided
for by the subsection, Van Heerden JA said in that case:
‘
Gevalle
waarin daardie persoon volgens ‘n wetsbepaling nie die betrokke
voorwerp mag besit nie, of dit nie mag doen sonder ‘n
vergunning,
soos ‘n permit, waaroor hy nie beskik nie, lewer geen probleme op
nie. In sodanige gevalle sou sy besit van die voorwerp
klaarblyklik
wederregtelik wees indien dit aan hom teruggegee word. In die
onderhawige geval het die appellante hulle nie op sodanige
bepaling
beroep nie.’
7
[15] I
agree, however, with Lewis JA that the mischief that the Legislature
sought to prevent was the possession of vehicles where
there has been
tampering with engine or chassis numbers. The Legislature says that
no person is to be in possession of a vehicle
where there has been
tampering with its engine or chassis number: such possession is
forbidden.
8
A person who possesses a vehicle of which the engine or chassis
number has been tampered with is liable to a penalty
(s 89(1)
, read
with
s 89(6)).
And if that person is the owner, he/she cannot merely
raise ownership as a defence in a criminal prosecution. If, for
example,
he/she knew that there had been tampering with the vehicle’s
engine or chassis number, a mere allegation of ownership of the
vehicle
would not earn him/her an acquittal. Something more would be
required to constitute ‘lawful cause’ and thus for the owner to
escape criminal liability. The appellant in this case relies on the
fact that it was a bona fide purchaser (and thereafter owner),
who
even obtained clearances in respect of the vehicles from the SAPS.
Although these factors, together with absence of knowledge
of the
tampering with, or alteration to, the chassis numbers of the vehicles
might well have secured the appellant’s acquittal
had he been
prosecuted, that would not have meant that he could continue to
possess the vehicles. And lest I be misunderstood, I
am not
suggesting, by referring to what would constitute ‘lawful cause’,
that there is an onus on a claimant to prove ‘lawful
cause’. In
criminal proceedings the onus of proving absence of ‘lawful cause’
(‘without lawful cause’) is on the State.
9
[16] Clearly then, the
phrase ‘without lawful cause’ in
s 68(6)(b)
of the
National Road
Traffic Act is
aimed, in my view, at affording a person who is facing
criminal prosecution for possession of a vehicle whose engine or
chassis number
has been tampered with, an opportunity to raise a
defence of lawful possession to escape criminal liability. It does
not, where
the possession was ‘with lawful cause’, provide
authority for, or a right to, continued possession of such a vehicle.
As I have
said earlier, possession of a vehicle where there has been
tampering with its engine or chassis number is forbidden: the
National Road Traffic Act does
not confer authority on anyone to
allow it.
[17] As
stated by Lewis JA (for the majority) in
Marvanic
, supra,
10
Regulation 56 of the National Road Traffic Regulations 2000 provides
the means for the owner of a vehicle (or a 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 in respect of such new numbers for purposes of obtaining,
from the registering authority, a new registration certificate.

Until that regulation has been complied with, possession of the two
vehicles concerned in this matter will be without lawful cause,
ie
they cannot be returned to the appellant as it may not lawfully
possess them (s 31(1)(a) of the Act).
[18] The appeal is
dismissed with costs.
_____________
L
MPATI DP
CONCUR:
CAMERON
JA
NUGENT
JA
SCOTT
JA:
[19]
I
regret I am unable to agree with the construction placed on
ss
68(6)(b)
of the
National Road Traffic Act 93 of 1996
by my brother
Mpati. In my view the correct meaning to be given to the subsection
is that attributed to it by my brother Farlam
in his dissenting
judgment in the
Marvanic Development
matter to which reference
is made in para 11 above.
[20] The two alternative
constructions arise from the words ‘without lawful cause’. Do
they relate to the possession of a motor
vehicle simpliciter or do
they relate to possession of a motor vehicle whose engine or chassis
number has been falsified etc (‘a
mutilated vehicle’)? Farlam JA
says the former is correct. The majority judgments in both cases say
the latter. What particularly
troubles me about the majority view is
what I perceive to be a disregard of the words ‘without lawful
cause’. The subsection
contemplates the possession of a mutilated
vehicle which is lawful. If this were not so, the words ‘without
lawful cause’ would
not have been inserted. The section therefore
gives rise to the question who may lawfully possess such a vehicle.
The words could
not have been inserted to protect the police because
there is no similar protection in the other subsections of
s 68(6)
prohibiting possession of various things. No attempt is made by Mpati
DP to provide an answer. The same is true of the judgment of
Lewis JA
in the
Marvanic Development
matter. On the contrary, the
effect of both judgments is to construe
ss 68(6)(b)
as imposing an
absolute prohibition on the possession of a mutilated vehicle. But
the subsection clearly does not do so.
[21] In
my view, therefore, one is driven to the interpretation of Farlam JA
which is more in keeping with the common law and the
rule that penal
provisions are to be strictly construed. Indeed, the anomalies that
would arise from the construction of the majority
view are not
difficult to imagine. Could it ever have been the intention of the
legislature that an owner who recovers possession
of his or her
vehicle from a thief who has falsified the chassis number commits an
offence in terms of the section? The owner, having
recovered the
vehicle, would be obliged in terms of the regulations to tender the
vehicle to the police for the issue of a new chassis
number and
failure to do so would be an offence in terms of the regulations. But
that is a different matter.
[22] As
this is a minority judgment I do not propose to deal with the other
issues in the appeal which were not addressed by Mpati
DP.
__________
D G SCOTT
JUDGE OF
APPEAL
CONCUR:
HEHER
JA
1
At
para 8.
2
1989
(1) SA 926
(A).
3
At
para 10.
4
At
para 19-20.
5
2001
(1) SACR 634
(Tk).
6
See
footnote 2.
7
At
p 933 G-H.
8
Compare
Dickens v Gill
[1896] 2 Q.B.D. 310
, a case dealing with the
phrase ‘lawful excuse’ in s 7(c) of the Post Office (Protection)
Act, 1884.
9
See
Rex v Mguqu
1927 PH (2) 85 (N);
Dyani v Minister of
Safety and Security
2001 (1) SACR 634
(Tk) at 640 para 16.
10
At
para 11.