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[2014] ZAFSHC 185
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Mokoena v MEC: Police, Roads and Transport, Free State and Another (3002/2013) [2014] ZAFSHC 185 (10 November 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No: 3002/2013
In
the matter between:-
N
L MOKOENA
…......................................................................................................................
Plaintiff
and
THE
MEC: POLICE, ROADS AND TRANSPORT,
FREE
STATE
…...................................................................................................................
1
st
Defendant
M
P PHANDLIWE
…........................................................................................................
2
nd
Defendant
CORAM:
MOENG, AJ
JUDGMENT
BY:
MOENG, AJ
HEARD
ON:
28 OCTOBER 2014
DELIVERED
ON:
10 NOVEMBER 2014
INTRODUCTION
[1]
The plaintiff is an adult male and a taxi owner residing in
Fichardtpark Bloemfontein. The first defendant is the member of
the
executive council, responsible for police, roads and transport in the
Free State province whereas the second defendant is an
adult male
employed as a provincial traffic officer by the first defendant.
[2]
Plaintiff instituted an action against the defendants for loss of
income in the amount of R 124 200.00.He alleges in his particulars
of
claim, that on 15 March 2013, second defendant, acting within the
course and scope of his employment, issued a notice in terms
of
section 44(1) of the National Road Traffic Act 93 of 1996 ("section
44(1) notice”) to his driver Mr. Pholoana ("the
driver").The notice directed him to discontinue operating the
said taxi because it was not roadworthy. He further alleges
that the
second defendant unlawfully seized the said vehicle, and it was only
released on 22 May 2013 after an urgent application
to this court.
[3]
The defendants, in their plea, in turn admitted that a notice in
terms of section 44(1) was issued to the plaintiff's driver
but
disputed that the car had been impounded. They allege that the
plaintiff's vehicle was taken to the Lengau Testing Station
("Lengau") because the driver was a Lesotho citizen with no
work permit. They advised the plaintiff to collect his car
from
Lengau but he elected to bring an urgent application.
[4]
The parties were
ad idem
that the central issue that needed
determination was whether the vehicle was impounded and whether it
was kept from the plaintiff
so that he could not generate an income.
[5]
An application was made at the commencement of the trial by agreement
for the quantum and merits to be tried separately and
I granted the
order. The trial then proceeded on the basis that only the issue of
liability of the defendants had to be decided.
This judgment
therefore concerns the issue of merits only.
THE
FACTS
[6]
Plaintiff and Mr. Ntsalla ("Ntsalla") testified in support
his case whereas the second defendant narrated the defendants'
version. The facts of the matter can briefly be summarised as
follows:
[7]
On 13 March 2013 at around 07:05, plaintiff received a phone call
from his driver that he was stopped by a traffic officer next
to the
Bains Game Lodge and that he intended to seize the minibus.
Plaintiff, together with Ntsalla whose minibus was also stopped,
hurried to the scene.
[8]
Second defendant confirmed this, but alleged that this particular
incident took place on the 12th and not the 13th of March.
He decided
to take the vehicle to Lengau for further tests as it was not
roadworthy. The driver could in addition thereto
not produce
the taxi's operating license and he was working in the republic
without a work permit.
[9]
Plaintiff, dissatisfied by the imminent seizure of his vehicle,
demanded that he be issued with a notice of impoundment. The
officer
failed to issue the notice and he instructed his driver to drive back
to his base and not accompany the officer. The vehicle
was taken to
Denkins testing station ("Denkins") on the same day for a
roadworthiness test and all the defects that were
pointed out by
Denkins were repaired.
[10]
Second defendant in turn stated that the plaintiff was arrogant and
that he had already issued a section 44(1) notice, but
could not hand
it to the driver since he absconded. This notice was only given to
the driver three days later, as it will appear
hereunder.
[11]
On 15 March 2013, the plaintiff received yet another phone call from
his driver informing him that the same officer had stopped
him next
to the Bram Fischer building and that he seized the vehicle. This was
confirmed by the second defendant who indicated
that the driver was
operating on an unauthorised route and the driver had no work permit.
[12]
He proceeded to Lengau accompanied by Ntsalla. He saw his vehicle
amongst other impounded vehicles. He made enquiries and the
second
defendant was summoned by his colleague, Mr. Mokgobo to assist with
the release of the vehicle. He informed them that he
issued the
driver with a section 44(1) notice and had taken him to the offices
of the Department of Home Affairs as he had no work
permit.
[13]
He further alleged that the minibus had no operating permit. The
permit was however presented to the satisfaction of both officers.
Mr. Mokgobo thereupon requested him (the second defendant) to get a
copy of the section 44(1) notice to facilitate the release
of the
vehicle and he promised to collect it from his official vehicle, but
never returned.
[14]
Plaintiff was then referred to his supervisor, Mr. Nkhi. He was again
summoned, but refused to give any explanation on the
matter and
instead referred them to Mr.Mdhuli, who was in charge of taxi
operations. Plaintiff was however forced to leave without
any
assistance since Mr. Mdhuli could not be reached on his phone.
[15]
Second defendant however disputed having been summoned by his
colleagues. His version is that he informed the plaintiff to
produce
the section 44(1) notice issued to the driver to facilitate the
release of his vehicle. The plaintiff refused to do so
and threatened
him with legal action should his vehicle not be released.
[16]
Plaintiff returned to Lengau on Monday, 18 March, but could again not
get assistance. He consequently consulted an attorney.
Various
letters were exchanged between his attorney and the first respondent,
but he could still not recover his vehicle. He accordingly
instructed
his attorney to file an urgent application for the release thereof
and it is only then that it was released.
THE
ISSUES
[17]
That the plaintiff's vehicle was stopped by the second respondent on
two different occasions and that it was taken to Lengau,
and kept
there from 15 March until 22 May 2013 is not in dispute. The critical
issue is whether its removal and continuous storage
by defendants’
was lawful.
THE
LEGAL POSITION
[18]
Section 44(1)
of the
National Road Traffic Act provides
that if a
motor vehicle is not roadworthy a traffic officer or an examiner of
vehicles may, by notice in the prescribed form served
on the driver,
owner or operator of such vehicle, direct that such vehicle shall not
be operated on a public road or that such
vehicle shall only be
operated on the prescribed conditions.
[19]
The said notice also directed the owner or operator to remove the
vehicle to the nearest garage or to the owner or operator’s
address. The defects as pointed out and other defects not mentioned
had to be repaired and the vehicle had to be presented on a
specified
date, time and place for testing and examination.
[20]
Section 87 of the National Land Transport Act in turn provides as
follows:
‘
Impoundment
of vehicles
.
—
(1) An authorised officer
who is satisfied on reasonable grounds that a motor vehicle is being
used by any person for the operation
of public transport without the
necessary operating license or permit or contrary to the conditions
thereof, may impound the vehicle
pending the investigation and
prosecution of that person for an offence mentioned in section 90 (1)
(a) or (b).
(2)
A vehicle impounded under subsection (1) must be delivered to the
head of the depot contemplated in subsection (4), who must
retain the
vehicle in the depot and release it to the person concerned only—
(a)
when the criminal charges against the person have been withdrawn or
the person has been acquitted of the offence charged; or
(b) in the case
where the person is convicted of the offence charged, and unless the
court has ordered otherwise, on payment to
the head of the depot of
the amount determined by the MEC, which is an impoundment fee.’
EVALUATION
OF THE DISPUTES
[21]
The reason advanced by second defendant for having removed the
vehicle to Lengau was because it was driven by a Lesotho citizen
who
did not have a work permit. The defendants' thereby denied that the
vehicle was impounded.
[22]
Both plaintiff and Ntsalla made a good impression. They corroborated
each other materially about the initial incident on the
Bainsvlei
road. They both maintained that upon their arrival, the second
defendant had already instructed the driver to follow
him to Lengau
and that he refused to give them any notice of impoundment.
[23]
Second defendant's reaction to this version is that the driver failed
to produce an operating permit for the taxi, that he
had no work
permit and that the vehicle was not roadworthy. He further confirmed
that operating a taxi without an operating license
is regarded as
very serious, sanctioned with a heavy fine and impoundment of the
vehicle.
[24]
It is strange that in spite of the seriousness of this contravention,
he decided not to issue a fine and a notice of impoundment.
His
explanation that he felt sorry for the plaintiff is less than frank
and can safely be rejected based on the arrogant attitude
that he
said plaintiff portrayed.
[25]
It is also peculiar that second defendant had already issued the
section 44(1) notice upon plaintiff’s arrival, but he
still
wanted to conduct further tests. This was contrary to the provisions
of the notice that directed the owner to remove the
vehicle to the
nearest garage or his home for repairs and that the vehicle be
returned on a specific date to the testing station
for inspection.
The notice also provided that any other defects not mentioned had to
be repaired.
[26]
It is inexplicable that he did not hand the notice over to the
plaintiff so as to afford him the opportunity to act in accordance
with the provisions thereof. The reason for not doing so remains a
mystery. The most logical and plausible course that he should
have
followed was to have impounded the vehicle if the driver failed to
produce the operating permit, and issued the section 44(1)
notice.
[27]
His reaction when the driver ‘absconded’ was also
noticeably unusual. He was at that stage aware that the vehicle
was
not roadworthy and the driver could not produce the operating permit.
He strangely did not pursue him for illegally working
in the republic
nor did he impound the vehicle in terms of section 87 of the National
Land Transport Act.
[28]
Plaintiff's response in instructing his driver not to heed to the
second defendant's instruction to follow him was in my view
consistent with probabilities. He was satisfied that there was no
legal ground upon which the vehicle could be seized in the absence
of
a notice and was well within his rights to refuse to obey an illegal
order.
[29]
His version that the vehicle was not impounded but merely taken to
Lengau because the driver had no work permit is flawed.
He contended
that the driver could not produce an operating permit and that he was
not driving on his allocated route when he stopped
the vehicle next
to the Bram Fischer building. He however again failed to impound the
vehicle despite these serious contraventions.
[30]
The allegation that the vehicle was not impounded is also in direct
contradiction with what second defendant conveyed to Adv.
Molotsi
from the first respondent's office. In an email dated 25 April 2013,
Adv. Molotsi confirmed that according to the second
defendant, the
vehicle had been impounded because it had no operating license and
because the driver had no work permit. This vehicle
admittedly had an
operating license.
[31]
I can find no justification why the second defendant decided to take
the vehicle to Lengau on the ground that the driver had
no work
permit. The section 44(1) notice directed that the vehicle be removed
to the nearest garage or to the owner's address.
A simple instruction
to the driver to phone the plaintiff to remove his vehicle in
accordance with the notice would have solved
the problem, and he
could have dealt with the driver in terms of the immigration laws.
[32]
There was purely no justifiable reason for the removal of the
vehicle. I am satisfied that the second defendant’s conduct
in
removing the vehicle amounted to an unlawful impoundment. This
vehicle was admittedly already repaired on the 15th of March,
and all
that was required was for the owner to produce the vehicle to the
testing station on the date as provided for in the notice.
The
defendants’ could not provide any legal ground upon which this
vehicle was removed.
[33]
Plaintiff’s response at Lengau was likewise consistent with
probabilities. He gave a detailed version of what transpired
in his
endeavor to recover his vehicle. He also explained what the second
respondent's reaction was when he was requested to get
a copy of the
section 44(1) notice and when he was confronted by his immediate
supervisor Mr. Nkhi. It is noteworthy that this
aspect was also not
disputed under cross-examination but only when second defendant
testified.
[34]
In response to this, second defendant's version is that he requested
plaintiff to present the section 44(1) notice that was
issued to the
driver and once produced, the vehicle could be released. I find this
version absurd as the plaintiff would not have
opted to institute
legal action if a simple document was required. This version is also
not supported by the email from the first
respondent’s office.
[35]
The defendants further contended that the plaintiff was advised to
take possession of his vehicle at Lengau but he in turn
elected to
lodge an urgent application. This version is likewise untenable and
does not accord with probabilities. It is also contrary
to the email
from Adv. Molotsi which notified the plaintiff to approach the
Department of Home Affairs to obtain a JS3t form for
the release of
the vehicle.
[36]
Plaintiff's evidence about the steps he took to recover his vehicle
on the 15th and later on Monday the 18
th
was not
challenged in cross-examination. This issue was in my view crucial
since it related to a material aspect upon which the
case was based.
[37]
As a general rule, though not absolute and inflexible, a party who
calls a witness is entitled to assume that if a witness’s
testimony has not been duly challenged, it has been accepted as
correct. In
Small v Smith
1954 (3) SA 434
(SWA) Claasen
J held as follows
:
“
it
is, in my opinion, elementary and standard practice for a party to
put to each opposing witness so much of his own case or defence
as
concerns that witness and if need be to inform him, if he has not
been given notice thereof, that other witnesses will contradict
him,
so as to give him fair warning and an opportunity of explaining the
contradiction and defending his own character. It is grossly
unfair
and improper to let a witness's evidence go unchallenged in
cross-examination and afterwards argue that he must be disbelieved”.
[38]
This view was further confirmed in
President of the Republic of
South Africa and others v South African Rugby Football Union and
others
2000 (1) SA 1
(CC) where it was held that it is
essential, when a party intends to suggest that a witness is not
speaking the truth on a particular
point, to direct the witness's
attention to that fact by questions put in cross-examination showing
that an imputation is intended
to be made and to afford the witness
an opportunity of giving any explanation and defending his or her
character.
[39]
It was further held that if the point in dispute is left
unchallenged, a party calling the witness is entitled to assume that
the uncontested testimony is accepted as correct. The precise nature
of the imputation should be made clear to the witness so that
it can
be met and destroyed, particularly where the imputation relies upon
inferences drawn from other evidence in the proceedings.
[40]
The Court however warned that these rules relating to the duty to
cross-examine must not be applied in a mechanical way, but
always
with due regard to all the facts and circumstances of each case, but
their object must not be lost sight of.
[41]
The inescapable conclusion is that the second defendant, as opposed
to plaintiff and Ntsalla, was not a credible and a reliable
witness.
I am satisfied that his evidence, in so far as it contradicts that of
the plaintiff, can be safely rejected. The impoundment
of plaintiff’s
vehicle was not sanctioned by either
section 44
of the
National Road
Traffic Act or
section 87 of the National Land Transport Act.
[42]
This vehicle was kept from the plaintiff without any justification
and this prevented him from generating an income for this
period.
This case is a classic example of the abuse of power by law
enforcement officials. Second defendant’s insolence when
he was
requested by his colleague to fetch a copy of the notice from his car
and his attitude when he was summoned to the office
of his supervisor
to assist the plaintiff directly led to the loss in income that
plaintiff suffered.
[43]
The problem was aggravated by the laxity of first defendant to
release the vehicle despite the number of letters addressed
to them.
These letters paint a sad picture of the steps plaintiff had to take
to recover his vehicle.
ORDER
[44]
I am under these circumstances satisfied that the following order
should be made:
1. Judgment is
granted in favour of plaintiff on the merits;
2. The adjudication
of quantum is postponed
sine die;
3. Costs to stand
over for later adjudication.
_________________
L.B.J.
MOENG, AJ
On
behalf of the plaintiff: Adv. JL Olivier
Instructed by:
Hugget Hendriks Inc.
BLOEMFONTEIN
On
behalf of the defendants:
Adv. NR Rathidile
Instructed by: State
Attorney
BLOEMFONTEIN