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[2013] ZAGPPHC 47
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Auto Haus (Pvt) Ltd v National Commissioner of SAPS (32169/11) [2013] ZAGPPHC 47 (12 February 2013)
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT)
CASE NUMBER:32169/11
DATE:12/02/2013
In
the matter between:
AUTO
HAUS (PVT) LTD
….....................................................................
Appellant
And
THE
NATIONAL COMMISSIONER OF
SAPS
.......................................
Respondent
JUDGEMENT
MOLOPA-SETHOSA
J
Applicant
has launched an application against the Respondent for an order in
the following terms:
1.
Ordering and directing the Respondent forthwith to restore
possession to the Applicant or its agent possession of a certain
motor vehicle Rolls Royce Ghost with vehicle identification number
SCA664S08AUH14637;
2.
Costs of the application.
3.
Further or alternative relief.
Refer
Notice of Motion, p 1 -2 of the paginated papers.
The
application is opposed by the Respondent
The
Applicant basis its claim against the Respondent as follows:-
Claim
A
That
the Applicant is the owner of a certain Rolls Royce Ghost motor
vehicle with chassis number SCA664S08AUH14637 (“the vehicle”);
and that the servants of the Respondent are in possession of the
vehicle which is currently held at the Sunnyside Police Station
at
466 Leyds Street, Sunnyside, Pretoria under the control of the
Respondent; [the rei vindicatio]; refer par. 5 & 6, p6 of
the
paginated papers.
Claim B
That
at all times material hereto and on 9 December 2010, the Applicant
was in possession of the vehicle; and that it/the Applicant
was
dispossessed of the vehicle by an officer employed by the Respondent,
who removed the vehicle to the Sunnyside Police Station
where it
presently remains under the control of the Respondent.
That
the Applicant has a better right to possession of the vehicle than
the Respondent; [The possessory action]; refer par. 7, 8
& 9, p6
of the paginated papers.
Claim C
That
at all times material hereto and on 9 December 2010, the Applicant
was in peaceful and undisturbed possession of the vehicle;
and that
the Applicant was dispossessed of the vehicle without its consent and
without any due legal process by an officer of the
South African
Police Service. That the vehicle was removed to the Sunnyside Police
Station, and the said vehicle currently remains
at such police
station under the control of the Respondent; [spoliation]; refer par.
10 & 11, p7 of the paginated papers.
The
Applicant thuscontends that it has three (3) causes of action, viz.
the rei vindicatio, the possessory action and spoliation.
The
Respondent contends that the motor vehicle in question herein was
seized and impounded lawfully because the tow-truck driver
of the
truck that carried the vehicle in question (one Moses Matlawa) did
not only indicate that he was not in possession of the
necessary
documents but also consented to the search and seizure of the motor
vehicle. Further, that Captain N O Mashabela (“Mashabela”),
the deponent to the Answering Affidavit (“AA”) phoned one
Frank Buyanga/Buyana/Sadiqi [the person seem to have three
(3)
different surnames], to provide him with certain specified documents
set out in par. 9.1 of the AA, p44 of the papers before
the vehicle
could be released, as it was suspected to have been stolen from the
Durban port/h arbour; and that Buyanga/Buyana/Sadiqi
failed to
provide such documents.
Common
cause facts giving rise to the application are as follows:
On
09 December 2010 and on the N1 North, at the Phumulani toll plaza,
one Detective Captain Solly Ngobeni (“Ngobeni”),
[mentioned in the papers and in argument as Ngubeni] attached to the
Sunnyside Detective branch of the South African Police Service
(“SAPS”), in the company of other police officers, seized
a maroon/silver Rolls Royce (“the vehicle”) with
chassis
no. SCA664508AUH14637. It must be noted that in the Notice of Motion
the chassis no. is said to be SCA664S08AUH14637. I
may just mention
that from Ngobeni's sworn statement, p51 of the paginated papers, the
surname is spelt Ngobeni (not Ngubeni);
hence I refer to him as such.
At
the time of seizure the vehicle was in the possession of one Moses
Matlawa (“Matlawa”) who was transporting the said
vehicle
to Zimbabwe.
At
the time of seizure of the vehicle, Matlawa did not have any
documentation whatsoever pertaining to the vehicle, and stated to
Ngobeni that he was informed that he would find a person with the
vehicle’s documents at Beitbridge border gate in Messina
[the
SA- Zimbabwe border]; refer annexure “NOM1” to the AA,
p49-50, and p51 - 52 of the paginated papers, read with
par. 19-21 of
the Founding Affidavit (“FA”), p9 of the papers.
Apparently,
immediately after such seizure, Mashabela, an investigator at the
organised Crime in the service of SAPS, was assigned
to conduct an
enquiry into the seizure and subsequent impounding of the motor
vehicle effected by Ngobeni.
Mashabela
states in the AA that from his enquiry, and in his meeting with
Ngobeni, he gathered that:
•
Ngobeni received information from his
informer that there is a syndicate which is stealing luxury motor
vehicles from containers
at the Durban harbour. That the motor
vehicles
from
the containers are then kept in Johannesburg for a while and then
taken to Zimbabwe for registration, then brought back to
South Africa
for sale.
•
Ngobeni, through information from his
informer then stopped a tow truck that was transporting a Rolls Royce
to Zimbabwe. The driver
of the tow truck, Matlawa, did not have
documentation for the vehicle but informed Ngobeni that his manager
had told him that he
will meet someone at the Zimbabwe border gate
with the documents for the vehicle.
•
Ngobeni already had information that
the motor vehicle in question was associated with the leader of the
syndicate that was under
investigation, identified at the time as one
Frank Buyanga or Frank Sadiqi, a Zimbabwean national who was staying
at Sandton.
Mashabela
avers that based on the above mentioned information, he traced and
contacted Frank Buyanga telephonically and requested
him to bring the
necessary documents, viz. the import permit, the Bill of entry, proof
of purchase and the Certificate of the motor
vehicle, in order to
release the vehicle in question herein. That Frank
Buyanga/Sadiqi/Buyana promised him/Mashabela that he will
bring the
required documents, but he never provided same. Refer par.2 of the
AA, pp39-41 of the paginated papers.
Mashabela
avers that despite all efforts to contact Buyanga/Buyana/Sadiqi
personally at the address provided, he failed. He thus,
on 25 January
2011, applied for a subpoena for Buyanga/Buyana/Sadiqi's detailed
billing of incoming calls, outgoing calls, sms’s
and towers
used on his cellphone in terms of
Section 205
of the
Criminal
Procedure Act 51 of 1977
, as amended “(The Act”). That
the said billing confirmed that on 25 December 2010 the phone was
used at O R Tambo International
and was never used again.
The
high water mark of the Applicant’s case, as put by its counsel
in argument, is that the Applicant challenges the lawfulness
of the
seizure. The Applicant contends that Ngobeni unlawfully seized the
vehicle without a search warrant as envisaged in the
provisions of
the Act.
Section
20
of the
Criminal Procedure Act, 51 of 1977
provides as follows:
“
20
State may seize certain articles
The
state may, in accordance with the provision 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 of 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.
”
Section
22
of the
Criminal Procedure Act 51 of 1977
provides as follows:
“
22
Circumstances in which article may be seized without search warrant
A
police official may without a search warrant search any person or
container or premises for the purpose of seizing any article
referred
to in
section 20
-
(a)
if the person concerned consents to such search for and the seizure
of the article in question, or if the person who may consent
to the
search of the container or premises consents to such search and
seizure of the article in question; or
(b)
if he on reasonable grounds believes-
(i)
that a search warrant will be issued to him under paragraph (a) of
Section 21(1)
if he applies for such warrant; and
(ii)
that the delay in obtaining such warrant would defeat the object of
the search. ”
It
is so that in order to make a seizure under
S21
lawful, a search
warrant must be issued by a Magistrate or Justice of peace. Before
issuing a search warrant in terms of
ss20
and
21
, the Magistrate or
Justice of the peace must be satisfied by information on oath, not
only that there are reasonable grounds for
believing that the article
to be searched for and seized is in the possession of or under the
control of or upon any specified
person or is upon or at any
specified premises within his/her area of jurisdiction, but also that
the article to be searched for
and seized is an article such as is
referred to in
S20
of the Act; refer Toich v The Magistrate,
Riversdale and others
2007 (2) SACR 235
(C).
Looking
at the facts in this matter, which are not disputed, Ngobeni, as a
Detective Captain, had information from his informer
about a
syndicate [allegedly led by one Frank Buyanga/Buyana/Sadiqi, who is
alleged in the Applicant’s papers to be a Director
of the
Applicant], which allegedly stole luxury vehicles from the Durban
Flarbour and transported same to Zimbabwe to be registered
before
being brought back to SA to be sold.
The
vehicle seized was indeed a luxury vehicle, a Rolls Royce. On the
Applicant’s own version the vehicle came to SA through
the
Durban Harbour, and the vehicle was at some stage to be transported
to Zimbabwe. Refer FA par. 13 & 14, p7 and 8 of the
paginated
papers.
When
the vehicle was seized it was actually en route to Zimbabwe, and as
already stated above, Matlawa, the driver of the truck
that carried
the vehicle, did not have any documentation whatsoever pertaining to
the vehicle in question.
On
the facts before this court, the vehicle can be said to be an article
as envisaged in
S20
of the Act. Matlawa, the driver had physical
control over the motor vehicle and had the capacity to consent. He
himself, in his
sworn statement, at p50 of the papers, pertinently
states that he voluntarily and without any duress personally
surrendered the
vehicle to Ngobeni. He was in possession and in
control of the vehicle at the time of the search and seizure of the
said vehicle,
and in my view and on the facts he consented thereto,
as envisaged in
S22
of the Act. The driver’s [Matlawa’s]
consent is valid in terms of
Section 22
(a); refer Nombembe v The
Minister of Safety and Security
1998 (2) SACR 160
(Tk).
On
the facts before this court I am of a considered view that a search
warrant would be issued to him/Ngobeni if he applied for
such warrant
[as envisaged in
S22(b)(i)].
The
Applicant contends that Ngobeni should have applied for the issue of
a search warrant prior to such seizure as he had knowledge
of the
Syndicate already on 06 December 2010. To this the Respondent
contends, correctly so in my view, that even though Ngobeni
acted
upon information aforesaid, there was not yet certainty as to the
accuracy of the information and thus Ngobeni could not
have been able
to, prior to the seizure, state under oath that reasonable grounds
exist for a warrant to be issued. That it was
only after it was
established, with certainty 1 may add, after the search, that the
motor vehicle in question had no documentation
and on Matlawa's
statement that he was told that he will meet someone with documents
at the border gate that Ngobeni knew with
certainty that the
information of the police informer was correct. The vehicle was, with
certainty, suspect.
Surely
Ngobeni had to first verify the information of the police informer.
Because of the nature of the information that Ngobeni
initially had,
he could not apply for a search warrant before the search was
effected. On the facts before this court, the search
and the seizure
of the vehicle was justified in terms of
S22.
In my view had Ngobeni
left the vehicle in order to secure a search warrant, the vehicle
would surely have disappeared. Refer in
this regard to National
Director of Public Prosecutions v Starplex 47 CC & Others: In re
ex parte National Director of Public
Prosecutions v Mamadou &
Another
2009 (1) SACR 68
(C).
As
already indicated above, the Applicant basis its cause of action
firstly on the basis that it is the owner of the vehicle in
question.
Based on the information the police had pertaining to the syndicate
stealing luxury vehicles from the Durban harbour,
the Respondent’s
officials, including Mashabela, who was tasked with investigating
this matter after the vehicle had been
seized, required certain
specified documents to verify the status of the motor vehicle in
question. This was first communicated
to the tow-truck driver,
Matlawa, who informed Ngobeni that he was not in possession of the
documents but was told that he will
meet someone at the border gate
with the documents. Secondly, as already stated, Mashabela avers that
he informed/telephoned Frank
Buyanga/Buyana/Sadiqi about which
documents must be submitted in order to release the motor vehicle.
This has not been disputed
by the Applicant.
The
Applicant merely states in the Replying Affidavit (“RA”)
that Buyanga/Buyana/Sadiqi met with Ngobeni on 20 December
2010 and
gave him the required documents. Certain documents are then annexed
to the RA; one assumes that these would be the documents
alleged to
have been provided to Ngobeni? This aspect is not dealt with at all
in the Founding Affidavit (“FA”). I
shall deal in detail
with the documents annexed to the Applicant's FA and RA below.
From
the response of the Respondent in the AA, it is clear that the
Applicant has not provided the Applicant with the documents
specified
in par. 9.1 of the AA; and when the matter was argued before this
court counsel for the Respondent submitted that the
Applicant still
has not provided the Respondent with the required documents to verify
the status of the motor vehicle. And that
all that the Applicant has
to do is to submit those documents required and the vehicle will be
released [obviously if it is shown
to belong to the Applicant].
The
Applicant does not seem to have valid and authentic documents to
prove, on a balance of probabilities that it is the owner of
the
vehicle in question.
The
Applicant further avers that it has a better right to possession of
the vehicle than the Respondent The vehicle was seized on
09 December
2010; from the cellphone statement of Buyanga/Buyana/Sadiqi, who was
associated with the vehicle in question, even
on Applicant’s
version, he/Buyanga disappeared from the radar as at 25 December
2010, his last call having been made at O
R Tambo Airport at
00:18:19. The Respondent only got communication/letter of demand from
the Applicant’s Attorneys more than
two (2) months after the
seizure of the vehicle. On the facts before this court and on the
facts set out above the Applicant has
not made out a case for
dispossession in this regard. In my view, on the facts before this
court, the Respondent is in lawful possession
of the vehicle.
The
Applicant further states that it was in peaceful and undisturbed
possession of the vehicle and that it has been dispossessed
of the
vehicle without its consent. Matlawa, the truck driver that carried
the vehicle in question herein consented to the seizure
of the
vehicle.
The
Applicant bears the onus to prove on a balance of probabilities that
it was in possession and has been unlawfully deprived of
such
possession; refer Yeko v Qana
1973 (4) SA 735
(A). On the facts
alluded to above it cannot the said that the Respondent in anyway
acted unlawfully. In fact the Respondent has
said to the Applicant
and/or Buyanga/Buyana/Sadiqi to bring the specified required
documents so that the vehicle can be released;
however, the Applicant
has failed to produce the required documents.
Counsel
for the Applicant submitted that since there are no criminal charges
preferred against anyone pertaining to the vehicle,
the vehicle
should be released to the Applicant in terms of Section 31 of The
Act. I do not think that the legislature intended
that for as long as
there are no criminal charges preferred against anyone pertaining to
the seized article, the seized article
should be released to anyone
who claims to be the owner thereof without proof that such
person/entity is indeed the . owner and
entitled to
receipt/possession of the article in question.
In
this instance the vehicle was seized by the police on information
that there was a syndicate that allegedly steals luxury vehicles
from
Durban port/harbour and takes the said vehicles to Zimbabwe for
registration and brought back to SA to be sold. After the
vehicle was
seized Buyanga/Buyana/Sadiqi is called by the deponent to the
Answering Affidavit, Mashabela, tasked with the investigation
of the
matter, and is requested to bring the particular specified documents,
including proof of purchase of the vehicle to the
police so that the
vehicle can be released if everything is on board; this is not done;
the required documents are not even annexed
to the Applicant’s
papers.
Buyanga/Buyana/Sadiqi
does not independently tell the court his involvement and/or what
transpired between him and the Respondent’s
officials
[Mashabela/Ngobeni]; he merely confirms what Chibhanguza, the
deponent to the Founding Affidavit and Replying Affidavit
states; he
does not on his own enlighten the court as to what really transpired
pertaining to this vehicle. There is a dispute
as to whether
he/Buyanga gave documents to the Respondent officials or not. This
aspect is only dealt with in the Replying Affidavit,
after the
Respondent had stated in the Answering Affidavit that the
Applicant/Buyanga failed to provide Respondent with the necessary
documentation. The documents annexed to the Founding Affidavit and/or
Replying Affidavit does not assist the Applicant. The Applicant
has
failed to produce a simple document like an invoice as proof of
purchase. On the facts it cannot be said that the Applicant
is
entitled to possession of the vehicle without the required documents.
The vehicle has been lawfully seized and impounded.
To
sum up, the Applicant contends in par.6, p6 of the FA that it is the
owner of the vehicle in contention herein. This is disputed
by the
Respondent. The Respondent states in par. 6, 8, 9, 10 and 14 of the
AA, pp43-47 of the paginated papers that the time of
seizure of the
vehicle in
question
the driver of the truck that carried the vehicle did not have any
documentation whatsoever relating to the vehicle, no
registration
document, no import permit, no bill of entry, no border-gate permit,
nothing at all.
Counsel
for the Applicant contends in his Heads of Argument, also in his
submissions in argument before court, that the Respondent
admits that
the Applicant is the owner of the vehicle. This cannot be correct. On
a proper reading of par. 6 of the Answering Affidavit,
where the
Respondent deals with ad par 5 & 6 of Founding Affidavit it is
clear that the Respondent disputes the Applicant's
ownership of the
vehicle; stating that “the alleged owner....”[my
underlining], cannot be said to be an admission that
Applicant is the
owner. In fact the Respondent goes further and states that “the
alleged owner failed to provide proof of
ownership....[my
underlining]. How can this then be interpreted by the Applicant
and/or its Counsel to be and unequivocal admission
of the Applicant's
ownership of the vehicle?
The
Respondent, in my view, and on a proper reading of the papers, only
admits par. 6 of the FA, viz. that “the servants of
the
Respondent are in possession of the vehicle.... held at the Sunnyside
Police Station...”
As
already stated above, the deponent to the Answering Affidavit,
Mashabela, states in par 2.2, p41 of the Answering Affidavit that
he
contacted Buyanga/Buyana/Sadiqi [alleged to be the owner of the
vehicle according to the truck driver, Matlawa, to bring the
necessary documents [which would prove that everything was on board
pertaining to the car I guess], and that Buyanga/Buyana/Sadiqi
never
brought any documents whatsoever.
From
the reading of the papers, at the time the Answering Affidavit was
deposed to. to wit 25 July 2011, no authentic documents
had been
provided to the Respondent's officials by the Applicant and/or
Buyanga/Buyana/Sadiqi to prove ownership of the vehicle;
let alone
proof of purchase of the vehicle in question.
The
Applicant annexed documents to the Replying Affidavit, having stated
in the Replying Affidavit that Buyanga/Buyana/Sadiqi had
provided
some documents to the Ngobeni. In the Founding Affidavit there is no
mention by the Applicant that it and/or Buyanga/Buyana/Sadiqi
submitted any required documents to the Respondent’s officials
to show legality of the vehicle in question, nor do they attach
any
authentic documents to the Founding Affidavit. It is stated in the
Replying Affidavit that the documents were given to Ngobeni
on 20
December 2010. As at 25 July 2011 when the AA was deposed to, the
required documents set out in par.9 p44 of the AA had not
been
furnished.
The
Applicant deals with this bald allegation, that Buyanga/Buyana/Sadiqi
has given documents to Ngobeni, in the Replying Affidavit;
obviously
the Respondent has not had an opportunity to deal with this in the
Answering Affidavit.
As
matters stand, on the papers there is now a dispute of fact. The
respondent stated in the Answering Affidavit that it requested
certain specific document [par9, p44], that the Applicant has refused
and/or neglected to submit such documents.
The
Applicant as already stated above had not dealt with the issue that
Buyanga submitted the necessary documents to Ngobeni/Respondent.
Only
in the Replying Affidavit is this brought up, after the Respondent
has answered to the Applicant’s case the Answering
Affidavit.
It is trite that the Applicant should make out its case in the
Founding Affidavit [not in the Replying Affidavit].
Looking
at the documents annexed to the Founding Affidavit starting with
Annexure “A”, pl4 of the paginated papers,
it purports to
be a certificate of incorporation of the Applicant. The certificate
in question is not even signed by the Registrar
of Companies in
Zimbabwe. The authenticity of this document is thus questionable.
Counsel for the Applicant submitted [when this
court raised this
issue with him] that since the Respondent does not take issue with
the document in question, it should be accepted
that it is a valid
certificate. That cannot be correct; this court cannot simply ignore
this fact. After argument judgement was
reserved, and the parties
undertook to provide the court with bundles of authorities. When the
Applicant’s bundle of authorities
was duly provided, despite
having had time to provide an authentic certificate of incorporation,
if any, after the court had pertinently
raised this issue, the
Applicant did not provide same.
In
so far as Annexure “B”, p15 of the paginated papers is
concerned, it is stated on the ‘Certificate of Registration
as
a designated Tourist’ that “the validity of the
registration shall expire on the lst of June 2011”. When
the
application was issued in this division on 07 June 2011 and when it
was argued the said certificate was invalid, the validity
thereof
having expired on 01 June 2010. The Applicant has legal
representatives; they could therefore have required a valid
certificate
before issuing the Application if they want the court to
put any weight on this certificate.
Be
that as it may, from the papers before court, the following appears:-
The
deponent to the Answering Affidavit states that Buyanga/Buyana/Sadiqi
was requested to bring the following documents prior to
the vehicle
being released:
•
the import permit
•
Bill of entry
•
Proof
of purchase [of the vehicle]
•
Registration Certificate of the
Vehicle
Counsel
for the Applicant submitted that an import permit is not required in
this case. The Respondent, whose officials deal with
these issues
[imported goods on a daily basis, say the import permit is required],
and counsel for the Respondent submitted that
an import permit was
required. One cannot begin to imagine what chaos would ensue if the
authorities would just allow goods in
and out of the country without
import/export permits being required.
The
fact that the vehicle in question was allegedly en route Zimbabwe
does not absolve the Applicant; the first port of entry is
South
Africa; the truck driver, Matlawa, drives from Johannesburg, carrying
the imported vehicle in question herein, he has no
documents
whatsoever; he informs Ngobeni that he will find the person with the
vehicle’s documents at Beitbridge (Messina),
SA-Zimbabwe border
gate. On the Applicant's version the vehicle was taken from the
Durban Port/harbour on 8 Dec 2010 and driven
to Johannesburg, not to
Zimbabwe, because it did not have a cross border permit; yet the
truck driver, Matlawa, carrying the said
vehicle from Johannesburg to
Zimbabwe on 9 December 2010 did not have any documents whatsoever
pertaining to the seized vehicle,
stating to the police that he was
to get the documents at the border. Not even any mention of a cross
border permit is made by
Matlawa. He simply had no documents at all.
Counsel
for the Respondent even said in her submission that if the Applicant
was to produce the documents set out in par 9.1 of
the Answering
Affidavit [P44], they would immediately have the seized vehicle
released, but that has not been done as they seemingly
do not have
such documents.
Annexure
“C” mentions one Ian Frank Properties CC (“Frank”)
as the consignee, i.e. as the company that received
the luxury
vehicle in question. There is no affidavit from anyone from Ian Frank
Properties CC stating what their role is or was
in so far as this
vehicle is concerned.
This
Frank Company is simply silent. Could it be that this Ian Frank
Properties belongs to Frank Buyanga/Buyana/Sadiqi, who is also
said
to be staying in Sandton? Is this Frank Company just a coincidence?
Matlawa mentions in his statement aforesaid that he picked
up/collected the vehicle in question herein at comer Wert or West
Street and Grayston Avenue, Sandton. As already stated this Frank
Company is deafeningly silent.
The
author of the letter, annexure “C”, one Matthew Boka who
purportedly instructed Deca Motors International to consign
a vehicle
to Ian Frank Properties CC, is not mentioned at all in either the
Founding Affidavit and/or the Replying Affidavit. There
is no mention
in annexure “C” of what vehicle specifically is being
referred to, i.e. particulars of the said vehicle
[colour, chasis/vin
no., engine no. etc.].
In
the Replying Affidavit, the Applicant annexes a document “L”
in which the consignee is now said to be one Susan Simbarasi,
no
longer Ian Frank Properties as set out in annexure “C”.
Nowhere is the Applicant itself a consignee! No reason is
disclosed
and/or stated why the
Applicant
is not or cannot be a consignee; or why it has to use an individual
like Susan Simbarasi’s name and not the Applicant/Company’s
name/details as consignee if indeed the article was meant for the
Applicant,
The
alleged seaway bill, annexure “D”, pi 7 of the papers,
also does not look authentic as well. There are some blank
spaces
where some details have not been filled in. as e.g. “place of
receipt; shipper’s ref; place of delivery”.
No
explanation was given on the papers and in argument why this is so.
On
a proper and thorough analysis of the documents before this court,
the court noticed that the VIN. No. of the vehicle on annexure
“D”
is said to be SCA664508AUH1464637 or SCA684508AUH1464637. In the
letters of demand, annexures “F” and
“G” pp
19 and 20, as well as in annexure “O”, p84 of the
paginated papers, a document purported to have
come from Deca Motors,
the VIN. No. is stated to be SCA664908AUH14637. I have highlighted
the numbers that differ, [i.e. the 5
and the 9] within the VIN
numbers set out above. Surely these different VIN numbers cannot
relate to one and the same vehicle.
The
invoice from First Road, annexure “E” states Frank
Buyana, and not the Applicant, as the customer. If First Road
was
engaged for the Company/Applicant why would it state the name of an
alleged director as the customer and not that of the
Company/Applicant.
In
the letter of demand aforesaid, annexure “F”, p 19 of the
papers, mention is made, amongst others, that the Applicant
paid €172
000.00 to Deca Motors International Limited for the purchase of the
vehicle. No invoice is attached to the papers
before court; the
Respondent has amongst others requested proof of purchase and this
has no been forwarded to the Respondent. Instead,
a letter, alleged
to have come from Deca Motors is annexed to the Replying affidavit as
annexure “O”, p84, stating
a different VIN. No., as
already mentioned above. The letter, “0” aforesaid is not
even under oath; it does not even
mention how much was paid by the
Applicant for the vehicle, nor does it refer to any invoice and/or
authentic proof of purchase.
The document in my view is not proof of
purchase and is not authentic at all.
In
annexure “L”, p81 of the papers, the customs declaration
form, the consignee is one Susan Simbarasi, as already stated
above,
an individual, not the Applicant; and the consignee is no longer Ian
Frank Properties as was stated in annexure “C”.
The VIN.
No. set out therein [in “L”] differs with the VIN. No.
set out in annexures “F”, “G”
and “O”
aforesaid.
Annexure
“M" p82 of the papers makes no mention whatsoever of the
goods imported. The importer/consignee is said to be
Susan Simbarasi,
not the Applicant and not Ian Frank Properties, who the deponent
stated in the Founding affidavit to be the entity
the Applicant had
instructed Deca Motors to import/consign to. There is no SARS stamp
on the document; which one would, in my view
expect to find on an
authentic SARS document.
Annexure
“N” p83 of the papers starts by stating that ‘the
document is not proof of ownership’. It further
states the
vehicle in contention herein to be a second hand vehicle. Even if an
import permit was not required, the Government
Gazette no 11630 GN
2582 of 23 October 1988 stipulates, amongst others, that no second
(2nd) hand or used goods, including waste
and scrap, may be imported
without a permit.
The
letter alleged to have come from Deca Motors, “O”, to
confirm purchase of the vehicle cannot thus equate an invoice;
as
already stated it is not even under oath, the authenticity thereof is
suspect.
Annexure
“P” is an affidavit by Simbarasi stating that she is
employed by the Applicant. Surprisingly nowhere in the
founding
Affidavit is Simbarasi mentioned. How is the Respondent expected to
meet the Applicant's case if the Applicant seeks to
make out its case
in the Replying Affidavit? I have already dealt with the issue
pertaining to Simbarasi, and in my view this affidavit
does not take
the Applicant’s case any further.
In
Khan v Minister of Law and order
1991 (3) SA 436
(TPD), it was held
that the Respondent bears the onus of proving, on a balance of
probabilities, that the Applicant was not entitled
to the return of
the vehicle in terms of the provisions of the Act on the basis that
continued
possession
of the vehicle would be unlawful. The Applicant has not shown that it
is the owner of the vehicle, or that it is on any
basis whatsoever
entitled to lawful possession of the vehicle. Despite the
respondent's request and tender to release the vehicle
on production
of the specified documents, the Applicant has failed to provide the
Respondent with any authentic required document.
On
the facts before this Court, therefore, it cannot be said that the
Applicant is entitled to the return of the vehicle in question
herein. There is just no basis on the facts for such.
In
my considered view, the Applicant has failed to prove, on a balance
of probabilities that it is the owner of the vehicle, nor
that it has
been unlawfully deprived of the possession of the said vehicle, as
the vehicle was lawfully seized and as a suspected
stolen property.
Despite Buyanga/Buyana/Sadiqi and/or the Applicant, if indeed the
owner thereof, being requested to provide certain
specified documents
to the Respondent to secure the release of the vehicle in question,
the Applicant and/or Buyanga/Buyana/Sadiqi
have for more than two (2)
years failed to provide valid authentic documents to the Respondent
and/or the Respondent's officials.
On
the facts before this court, the Applicant thus cannot be said to
have made out a proper case for the relief sought.
In
the result the application is dismissed with costs.
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L
M MOLOPA - SETHOSA
J
JUDGE OF THE HIGH COURT