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[2013] ZANCHC 30
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Visagie t/a Prieska Entertainment Centre v Minister of Safety and Security N.O and Others (1084/2013; 1085/2013) [2013] ZANCHC 30 (6 September 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE HIGH COURT,
KIMBERLEY)
CASE
NO.: 1084/2013
1085/2013
Case
heard: 02-08-2013
Case
delivered: 06-09-2013
In the matter between:
1084/2013
DANIEL VISAGIE
t/a PRIESKA
ENTERTAINMENT CENTRE
.................................................................................
Applicant
And
THE MINISTER OF SAFETY AND SECURITY N.O.
.........................................................
1
st
Respondent
THE PROVINCIAL COMMISSIONER OF THE SAPS, NORTHERN
CAPE N.O.
............
2
nd
Respondent
THE CHAIRPERSON:NORTHERN CAPE GAMBLING
AND RACING BOARD N.O.
..............................................................................................
3
rd
Respondent
WARRANT OFFICER DANIELS N.O.
...............................................................................
4
th
Respondent
THE STATION COMMANDER, PRIESKA SAPS N.O.
.....................................................
5
th
Respondent
And
1085/2013
CLYDE SHADLEY STEYTLER
t/a KURUMAN
ENTERTAINMENT CENTRE
.......................................................................................................
Applicant
And
THE MINISTER OF SAFETY
AND SECURITY N.O.
.........................................................
1
st
Respondent
THE PROVINCIAL
COMMISSIONER OF THE SAPS,
NORTHERN CAPE N.O.
...................................................................................................
2
nd
Respondent
THE CHAIRPERSON:
NORTHERN CAPE CAMBLING
AND RACING
BOARD
.......................................................................................................
3
rd
Respondent
CAPTAIN LM VOS N.O
.....................................................................................................
4
th
Respondent
THE STATION COMMANDER,
KURUMAN N.O.
.............................................................
5
th
Respondent
THE MAGISTRATE,
KURUMAN N.O.
...............................................................................
6
th
Respondent
CORAM: C.C. WILLIAMS
J:
J U D G M E N T
WILLIAMS J:
1. During July 2013
inspectors attached to the Northern Cape Gambling Board (the Board)
received information that suspected illegal
gambling activities were
being conducted at entertainment centres situated in Prieska and
Kuruman in the Northern Cape.
2. Inspectors Shebe and
Jacobs together with the acting Chief Executive Officer of the Board,
Mr. Goeieman, visited these premises
and after satisfying themselves
that illegal gambling activities were being conducted at both these
premises, caused search and
seizure warrants in terms of
sections 20
,
21
and
25
of the
Criminal Procedure Act 51 of 1977
to be issued and
executed at the Prieska Entertainment Centre on 3 July 2013 and at
the Kuruman Entertainment Centre on 7 July
2013. The gambling
machines and other related items found at the Prieska Entertainment
centre were removed by members of the SAPS,
whereas at the Kuruman
Entertainment Centre, the gambling machines and related items were
not removed – the SAPS simply took
control of the premises by
locking it and retaining the keys, thereby effectively denying the
applicant access to the premises.
3. In both applications
numbers 1084/13 and 1085/13 the applicants seek orders setting aside
the search warrants for being invalid
and directing the respondents
to return and restore possession of the items removed from the
respective premises. It was envisaged,
at the time when the
applications were launched, that the gambling machines and other
items would already have been removed from
the Kuruman Entertainment
Centre by the time the applications were heard. I was however
informed by Mr. Jagga, who appeared for
the applicants, that the SAPS
still retained control over the premises.
4. I need not concern
myself with the issue of the invalidity of the search warrants. At
the hearing of the applications Mr. Khoko,
who appeared for the 1
st
,
2
nd
, 4
th
and 5
th
respondents in both
matters and Mr. Petersen who appeared for the 3
rd
respondent, readily and quite correctly so, conceded the invalidity
of the search warrants.
5. The issue in both
applications relate solely to the restoration of possession of the
gambling machines to the applicants who
do not have the requisite
licenses or authorisation to possess such gambling machines. The
possession of the gambling machines
in these circumstances is a
contravention of
section 9(1)
of the
National Gambling Act, No 7 of
2004
and constitute an offence under
section 82
of the Act.
6. The applicants rely on
the
mandament van spolie
for the restoration of possession,
having established undisturbed and peaceful possession of the
gambling machines and the unlawful
deprivation of such possession.
7. In
Ivanov v North
West Gambling Board and Others
2012(6) SA 67 (SCA), the Supreme
Court of Appeal found, in circumstances on all fours with the
present, that the appellant was
entitled to a spoliation order, that
the lawfulness of the appellant’s possession of the gambling
machines were irrelevant
in such circumstances and ordered the
unqualified restoration of the machines to the appellant.
8. In a judgment
delivered on 31 May, 2013 a differently constituted bench of the SCA,
in
Ngqukumba v Minister of Safety and Security and Others
,
(660/12) ZASCA 89, held that the
Ivanov
matter was wrongly
decided. The
Ngqukumba
matter concerned the restoration of
possession of a motor vehicle where there had been tampering with its
engine and chassis numbers,
such possession being unlawful in terms
of
section 68(6)(b)
of the
National Road Traffic Act 93 of 1996
. The
Court held at paragraph 15 and 16 that:
“
[15] The
appellant’s possession of the vehicle for now – until
such time as a police clearance is issued and the vehicle
is
registered in accordance with the provisions of the Act – will
thus be unlawful according to the criminal law. The police
cannot
lawfully release the vehicle to the appellant, whether he is the
owner or erstwhile lawful possessor thereof. An order by
a court that
it be done will be no different than ordering a person to be restored
in the possession of his or her heroin or machine
gun which he or she
may not lawfully possess. In fact, when counsel for the appellant was
invited in argument to distinguish this
case from a claim by the
former possessor of heroin, he was unable to do so. To my mind, that
finally illustrates why the
Ivanov
approach
cannot be sustained.
[16] In my view,
therefore, the principle enunciated in the cases in Pakule and Tafeni
applies with equal force to a spoliation
claim as it does to a claim
under
s31
of the CPA. If this court were to direct that possession of
the vehicle be restored to the appellant, it would be ‘lending
its imprimatur to an illegality’. Consequently, were this court
to grant the relief sought, it would be party to allowing
a state of
affairs prohibited by law in the public interest.”
9. The decision in
Ngqukumba,
being the latest in the SCA on this subject, would
be binding on this Court in terms of the
stare decisis doctrine
– thus disentitling the applicants
in casu
to spoliatory
relief where the items seized cannot be lawfully possessed. The
appellant in
Ngqukumba
has however lodged an application for
leave to appeal against the judgment of the SCA. The application for
leave to appeal has
been set down in the Constitutional Court for
hearing on 14 November 2013.
10. The respondents base
their opposition to the restoration of possession of the gambling
machines on the
Ngqukumba
decision
.
11. Mr. Jagga argues that
it is trite in terms of the common law that the noting of an appeal
suspends the operation and execution
of an order or judgment pending
appeal, therefor the argument goes, this Court is bound by the
Ivanov
judgment until the Constitutional Court has pronounced on the
application for leave to appeal in the
Ngqukumba
matter.
12. I cannot agree with
this argument. The mere lodging of an application for leave to appeal
did not under the common law bring
about the suspension of an order
or judgment. – the noting of an appeal did. See S
irioupoulas
v Tzerefos
1979(3) SA 1197(0) at 1202G.
13. Uniform Rule of Court
49(11) however, which restates the common law position with regard to
the noting of appeals, also makes
provision for the suspension of the
operation and execution of an order where an application for leave to
appeal has been lodged
- and reads as follows:
“
49 (11) Where
an appeal has been noted or an application for leave to appeal
against or to rescind, correct, review or vary an order
of a court
has been made, the operation and execution of the order in question
shall be suspended, pending the decision of such
appeal or
application, unless the court which gave such order, on the
application of a party, otherwise directs.”
The provisions of this
subrule however relate to civil appeals from the High Court. I can
find no such similar provision relating
to applications for leave to
appeal against an order or judgment of the SCA. In such a situation
it seems to me that the common
law position must prevail and that
only when the Constitutional Court grants leave to appeal and the
appeal is noted will the judgment
be suspended.
14. Even if I am wrong in
this regard and the lodging of an application for leave to appeal a
judgment or order of the SCA does
trigger the suspension of an order
or judgment on similar terms such as provided for in
Rule 49(11)
, one
needs to have regard to what is meant by “
an order”
or
“
judgment”.
15. Mr. Jagga contends
that since it is not only the execution but also the operation of a
judgment which is suspended, that upon
the application for leave to
appeal, the whole of the
Ngqukumba
judgment, in its general
sense of the reasons for the decision reached by the Court, the
decision itself and the order made pursuant
thereto, should be
treated as if it never existed until the Constitutional Court decides
on the application for leave to appeal.
16. On Mr. Jagga’s
interpretation of the word “
judgment”
in these
circumstances, it would mean that whether or not a judgment is
binding pending appeal would have to depend on whether
or not a party
to the proceedings elects to and is successful in applying for the
upliftment of the suspension of the operation
or execution of a
judgment. The idea that the binding nature of a judgment could depend
on the whim of a party is untenable and
runs contrary to the
considerations underlying the doctrine of
stare decisis
i.e.
certainty, predictability, reliability, equality, uniformity and
convenience. See
Camps Bay Ratepayers and Residents’
Association and Another v Harrison and Another
2011(2) BCLR
121(CC) at paragraph 9.
17. The words “
judgment
or order”
when referred to in section 20 of the Supreme
Court Act, which deals with appeals, is said to be used in the
restrictive sense
of the “
pronouncement of the
disposition”
upon relief claimed. See
Zweni v
Minister of Law and Order
1993(1) SA 523(A) at 532 D.
18. This being the case,
the “
suspension”
of the “
judgment or
order”
pending appeal can only relate to the judgment or
order in its restrictive sense and does not affect the
ratio
decidendi
or reasons for the decision. High Courts are obliged to
follow legal interpretations of the SCA and remain so obliged unless
and
until the SCA itself decides otherwise or the Constitutional
Court does so in respect of a Constitutional issue. (Ex parte
Minister of Safety and Security and Others
: In re:
S v
Walters and Another
2002(7) BCLR 663 (CC) at 693 (F)
19. It follows then, by
virtue of the
ratio decidendi
in
Ngqukumba,
that the
applicants are not entitled to the restoration of possession of the
gambling machines. Possession of the remainder of the
items seized,
which the applicants may lawfully possess, must however be restored
forthwith.
20. As far as the costs
of the application are concerned, the respondents have persisted in
their stance that the search warrants
were validly issued and
executed up until the hearing of the applications. Although it is
granted that the 3
rd
respondent had in the alternative
contended, should this Court find that the search warrants were
invalid, that the applicants
are not entitled to unqualified
restoration of the seized items since the applicants possession of
the gambling machines is unlawful,
the invalidity of the warrants
were only conceded at the hearing. This meant that the applicants
were compelled to approach the
Court to have the warrants set aside
and to have possession of the seized items restored. In this regard
the applicants were substantially
successful and I can see no reason
why the respondents should not be ordered to bear the costs of the
applications.
The following orders
are made.
In application no
1084/2013
a) The search warrant
issued by the fifth respondent on 3 July 2013 in respect of the
applicant’s business premises situated
at Prieska Entertainment
Centre, Ou Koöperasie Building, 39 Loots Boulevard, Prieska is
set aside.
b) The respondents are
ordered to forthwith return and restore possession of the movable
goods which the applicant may lawfully
possess and money that were
seized at the above-mentioned business premises during the execution
of the search warrant referred
to above.
c) The respondents are
ordered to pay the costs of the application jointly and severally,
the one paying the other to be absolved.
In application no
1085/2013
a) The search warrant
issued by the fifth respondent on 7 July 2013 in respect of the
applicant’s business premises, the Kuruman
Entertainment
Centre, situated at 1 Acacia Road, Kuruman is set aside.
b) The respondents are
ordered to return and restore possession of the premises, the movable
goods which the applicant may lawfully
possess and the money that was
seized during the execution of the above-mentioned warrant.
c) The first to fifth
respondents are ordered to pay the costs of the application, jointly
and severally, the one paying the other
to be absolved.
_______________________________
C.C WILLIAMS
JUDGE
For Applicants: Adv N
Jagga
Vardakos Attorneys
C/o Van de Wall &
Partners
For 1
st
, 2
nd
,
4
th
and 5
th
Respondents: Adv N.D Khokho
State Attorney
For 3
rd
Respondent: Adv Petersen
Matthews & Partners