Maqhunyana v Minister of Safety & Security and Others (2265/2009) [2011] ZAECMHC 27; 2012 (1) SACR 630 (ECM) (27 January 2011)

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[2011] ZAECMHC 27
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Maqhunyana v Minister of Safety & Security and Others (2265/2009) [2011] ZAECMHC 27; 2012 (1) SACR 630 (ECM) (27 January 2011)

IN THE HIGH
COURT OF
SOUTH AFRICA
(EASTERN
CAPE
DIVISION
,
MTHATHA)
CASE NO.
2265/ 2009
In the matter between:
XOLANI MAQHUNYANA
Applicant
and
MINISTER OF SAFETY AND
SECURITY
1
st
Respondent
STATION COMMISSIONER, MTHATHA
CENTRAL POLICE STATION
2
nd
Respondent
SUPERINTENDENT JINGXA
LIBODE POLICE STATION
4
th
Respondent
_____________________________________________________
JUDGMENT
______________________________________________________
DUKADA, A.J.
INTRODUCTION
[1]
The Applicant launched this application against 1
st
,
2
nd
and 3
rd
Respondents in which he sought the following
relief :-
1.1.
That the search, seizure and continued detention of the Applicant’s
motor vehicle, to wit, a TOYOTA HILUX with registration letters
and numbers CST
905 EC be declared unlawful.
1.2.
That the Respondents be directed to release forthwith the
motor vehicle to the Applicant.
1.3.
That the Respondents be interdicted and restrained from
further unlawfully interfering with the applicant’s possession of the motor

vehicle.
[2]
The 1
st
, 2
nd
and 3
rd
Respondents opposed the application and delivered answering affidavits to which
the Applicant replied.
[3]
Applicant then launched an interlocutory application applying
for the joinder of the 4
th
Respondent and also for the amendment of
his Notice of Motion to include a prayer for the following order:-
(a)
That the certificate issued by the 4
th
Respondent
attached to the
Respondent’s answering
affidavit being Annexure “VN1” be
declared
invalid and of no force and effect and be set aside as a
nullity.
[4]
On the 27
th
May 2010 an order was granted ordering
that 4
th
Respondent be joined as such, and also granting Applicant
leave to amend his Notice of Motion by including the prayer for the order
mentioned
in [2] above.
[5]
Applicant’s Notice of Motion was accordingly amended and the
Notice of Motion, Answering Affidavits, Replying Affidavit and Court
Orders
were duly served upon 4
th
Respondent.
[6]
4
th
Respondent thereafter delivered his answering affidavit
to which Applicant responded by delivering a replying affidavit.
THE FACTS OF THE CASE
[7]
Applicant’s case is that he bought a motor vehicle, to wit a
TOTOTA HILUX
with registration letters
and numbers
CST 905 EC.
He took it
to Madeira Police Station,
Umtata
where it was subjected to thorough inspection and verification to establish
whether it was not reported a stolen motor vehicle
and also whether there were
any tampering with identifying features on it. The police issued a clearance
certificate confirming
that there was nothing irregular in the motor vehicle
and it was later registered into the name of the Applicant. A copy of the
motor
vehicle licence in respect of this motor vehicle was attached to the papers.
[8]
During August 2008 while the said motor vehicle was at NTLAZA
taxi rank, Libode
it was seized and
taken away by police to Mthatha Central Police Station. At Central Police
Station, Mthatha the police found no
irregularities with the motor vehicle, but
they said they wanted to conduct further investigation.
He demanded that the motor
vehicle be released to him but the Police refused to do so.
[9]
Respondent’s case is that on the 7
th
October 2008 in
the morning a road block was set up by Police under Captain Kwanini near St
Barnabas Hospital at Ntlaza, Libode
by virtue of an authorization in terms of
Section 13(8)
of the
South African Police Service Act No. 68 of 1995
issued by
Superintendent Mbuyiselo Killion Jingxi, the Station Commissioner of Libode
Police Station, Libode. They stopped this
motor vehicle at that road block,
examined it and found that its chassis and engine numbers tampered with and
also the tags of
the manufacturer were removed. As a result of those findings
they had reasonable grounds for believing that the motor vehicle was
concerned
in the commission or suspected commission of an offence or may afford as
evidence of the commission of an offence or
that it was possessed illegally.
They then seized the motor vehicle and towed it away to the Mthatha Vehicle
Identification and
Safeguarding Section.
DISPARITIES
The Applicant says his
motor vehicle in question here was seized and taken away by the police while it
was parked at Ntlaza taxi
rank during August 2008. On the other hand on behalf
of 1
st
Respondent Inspector VUYOKAZI NTLANTSANA says this motor
vehicle was seized by the Police during a Police road block conducted at
Ntlaza
near St Barnabas Hospital on the 7
th
October 2008. There is such a
disparity as to the date and situation in which this motor vehicle was seized
and taken away by the
Police.
A document annexed to 1
st
Respondent’s papers marked “VN1” being authorization in terms of Section 13(8)
of the South African Police Service Act 1995 (Act
No. 68 of 1995) authorized a
checkpoint /checkpoints to be conducted
at R61 National Road near St Barnabas Hospital at Ntlaza, Libode on the
7
th
October 2008.
In his founding affidavit
Applicant states that the motor vehicle was seized and taken away by the Police
from him personally, whereas
in the answering affidavit on behalf of 1
st
Respondent, Inspector Ntlantsana in paragraphs 14, 17 and 19 mentions himself
dealing with the “driver of the motor
vehicle”. In paragraph 9 of
his
replying affidavit Applicant responding
inter
alia
, to paragraphs 14,17 and 19 of the answering affidavit by Inspector
Ntlantsana, prefers to use the word driver too, where he says
“
No irregularities were shown to the driver and in fact the vehicle
had no irregularities with it.”
Whilst I do not understand
the reason for the said disparities, I may say that despite them there are
aspects in this matter which
are not in dispute as will be shown hereunder.
[10]
From a reading of the papers by the
respective parties it is not an issue that the Applicant was in peaceful and
undisturbed possession
of the motor vehicle and that he was deprived of such
possession.
The 1
st
Respondent, however, contends that the dispossession of the motor vehicle of
the Applicant was not unlawful by virtue of the fact
that the Police Officials
derived their authority to seize the motor vehicle from the authorization
issued by the Libode Station
Commissioner (the 4
th
Respondent)
pursuant to the provisions of
section 13(8)
of the
South African Police Service
Act No. 68 of 1
995(hereinafter called the Act).
[11]
ISSUES
There are two issues
raised in this matter. The first relates to the validity of the authorization
issued in terms of Section 13(8)
of the Act.
The second issue relates
to the question of lawfulness of the search, seizure and continued detention of
the motor vehicle of the
Applicant.
[12]
LAW
The authorization
concerned in the first issue appears to have been issued in terms of Section
13(8) of the Act. The relevant portions
of this section read as follows:-
(a)
The National or Provincial Commissioner may, where it is
reasonable in the circumstances in order to exercise a power or perform
a
function referred to in Section 215 of the Constitution, in writing authorize a
member under his or her command, to set up a
roadblock or roadblocks on any
public road in a particular area or to set up a checkpoint or checkpoints at any
public place in
a particular area.
(b)
The written authorization referred to in paragraph (a) shall
specify the date, the approximate duration, place and object of the
proposed
action.
(c)
Any member authorized under paragraph (a) may set up a
roadblock or roadblocks or cause a roadblock or roadblocks to be set up on
any
public road in the area so specified or set up a checkpoint or checkpoints or
cause a checkpoint or checkpoints to be set up
at any public place in the area
so specified.
(d)
(e)
For the purposes of exercising the power conferred by
paragraph (c) or (d) a member shall display, set up or erect on or next to
the
road or at the public place such sign, barrier/or object
as is reasonable in the circumstances to
bring the order to stop
to the attention
of the driver of a vehicle approaching the roadblock so as to ensure that the
vehicle will come to a stop or to
the attention of a person approaching the
checkpoint.
(f)
Any driver of a vehicle who approaches a roadblock or any
person who refuses or fails to stop in accordance with an order to stop

displayed as contemplated in
paragraph
(e) should be guilty of an offence and liable on conviction to a fine or to
imprisonment for a period not exceeding six
months.
(g)
Any member may without warrant:-
(i)
in the event of a
roadblock or checkpoint that is set up in accordance with the paragraph ( c)
search any person or vehicle stopped
at such roadblock or checkpoint and any
receptacle or object of whatever nature in the possession
of such person or in,
on or attached to such vehicle and seize any
article
referred to in
section 20
of the
Criminal Procedure Act, 1977
, found by him or her in the possession of
such
person or in, on or attached to
such receptacle or vehicle; Provided that a member executing a search under
this subparagraph shall,
upon demand of any person whose rights are or have
been affected by the search or seizure, exhibit to him or her a copy of the
written authorization by the Commissioner concerned; and
(ii)……………………………………….”
[13]
Mr Notyesi, who represented the
Applicant submitted that this application revolved around the question of the
validity of the authorization
that was issued by the 4
th
Respondent
in terms of Section 13(8) of the Act. He argued that before issuing the
authorization there were no jurisdictional facts
on which the 4
th
Respondent based his decision. He further stated that 4
th
Respondent
has not set out facts which objectively viewed
rendered
it reasonable in the circumstances of this matter to authorize the setting up of
a road block. He went on to say the 4
th
Respondent in dealing with this
pertinent challenge merely contends himself by saying
“
I deny the allegations contained herein. In amplification hereof I
state categorically that I issued the certificate in accordance
with the
provisions of Section 13(8) of the South African Police but,……………… the
certificate was issued after I had satisfied myself
with the reasons and the
cause for conducting
of the road block.
I support of the certificate I was as well furnished with the necessary
documentation.
”
He further
argued that apart from alleging that
“
before the issue
of the certificate I
satisfied myself in terms of the information that was placed
before me that it was
reasonable in the
circumstances to authorize the setting up of
a road block………………. Save to dispute that there was no information before me
which rendered
it necessary to authorize the setting up of the road block, I
have already replied to the issues raised herein in the previous paragraphs”,
the 4
th
Respondent who was pertinently called upon to provide the information which led
him to issuing the written authorization, has failed
to set up facts which
support the conclusion that the issuing of the written authorization was
reasonable in the circumstances.
Mr Notyesi submitted
that both as regards the issuing of the certificate to set up the road block
and the actual
seizure, the failure by
the Respondents to disclose the
information and the source of such information providing the reason or
motive for both is fatal to the validity of the certificate
and to the actual
seizure itself.
[14]
Mr Gagela, Counsel for the Respondents
argued that in paragraph 12 of the answering affidavit of Inspector Ntlantsana she
states
as follows:-
“
The
purpose of the road block
was inter alia the checking of stolen and/ or motor vehicles whose engine and
chassis numbers were tampered
with, possession of unlicensed firearms and prevention
of crime
”.
He said this
is corroborated by the 4
th
Respondent in paragraph 3 of his
confirmatory affidavit. He argued that the above-quoted jurisdictional factors
were considered
by the Station Commissioner when he issued the written
authorization and are identical to one of those enumerated in Section 215
of
the Constitution Act of 1993. He submitted that it was, therefore, reasonable
in the circumstances to have authorized a road
block.
Mr Gagela
further argued that the Applicant does not state in what manner there has been
no compliance with section 13(8) but is
merely stating conclusions of law
without setting forth factual allegations thereon. He referred me to the case
of
ZANDISILE MAZANTSANA v MINISTER OF
SAFETY & SECURITY
AND OTHERS
,
Case NO 765/2002 (an unreported judgment of this Division)
THE VALIDITY OF THE AUTHORIZATION ISSUED IN
TERMS
OF SECTION 13 (8) OF THE ACT
[15]
The most relevant portion of Section 13(8)
for purposes of this matter is the following:-
“The National or Provincial
Commissioner may,
where it is reasonable in the circumstances
in the order to exercise a power or perform a
function referred to in Section 215 of the Constitution, in writing authorize a
member
under his command, to set up a roadblock or roadblocks on any public
road in a particular area”
( my
underlining).
[16]
As set out in paragraph 13 above it appears
that Mr Notyesi interpretes the above portions of Section 13(8) as to require
the 4
th
Respondent to have been in possession of an information which
made him to conclude that the issuing of the written authorization
was
reasonable in the circumstances. He seems to equate this legal situation with
the one which should prevail when deciding to
authorize the issue of a search
and seizure warrant in terms of
Section 20
,
21
,
22
and
23
of the
Criminal
Procedure Act.
:p>
Mr Gagela appears in his
argument to be holding the same view. Both Mr Notyesi and Mr Gagela did not
refer me to any authority which
specifically dealt with the afore-quoted
portion of
Section 13(8).
[17]
I, too, could not find case law dealing with
the phrase “
where it is
reasonable in the circumstances
” in the
above quoted portion of
Section 13(8).
Mr Notyesi and Mr
Gagela
seem to have been led away by the
use of the word
“reasonable”. It seems
to me that the word “reasonable” is a fluctuating term , the meaning varying
with the context.
It seems to me one has to
apply the primary rule of interpretation which was aptly put as follows by
SCHREINER , J.A. in
JAGA v DONGES
N.O
.
1950 (4) SA 653
AD at 662 ff :-
“Certainly no less important that the often repeated statement that
the words and expressions used in a statute must be interpreted
according to
their ordinary meaning is the statement that they must be interpreted in the
light of their context”.
Applying the said primary
rule of interpretation, it seems to me that it is more accurate to say that the
phrase “
where it is reasonable in the
circumstances
” refers to
circumstances or situation existing on the ground or spot where the roadblock
is to be conducted. One thinks of circumstances
or situation where the
roadblock is to be conducted, for instance where the spot is on a blind curve
of a road which is such that
to conduct a roadblock there would be potentially
a source of danger not only to the motorists but also to the police officials

conducting the roadblock. In such circumstances, I am of the view that it
cannot be said it is reasonable in those circumstances
to authorize that a
roadblock be conducted.
Section 13(8)
(a)
prescribes that it be reasonable in the circumstances in order to exercise a
power or perform a function referred to in Section
215 of the Constitution
viz:-
(a)
the prevention of crime;
(b)
the investigation of any offence or alleged offence;
(c)
the maintenance of law and order;
(d)
the preservation of the internal security of the Republic.
[18]
Applicant in his replying affidavit in
response to the answering affidavit of 4
th
Respondent says:-
“
the issuing of the certificate was not in compliance with the
provisions and/or conditions prescribed in
section 13(8)
of the
South African
Police Service Act because
:-
(a)
the jurisdictional factors
relevant to the issuing of a road block as set out in the section were not
present
(b)
there was no information placed
before Superintendent Jinxa which objectively viewed rendered it necessary to
authorize the setting
up of a road block.”
Nowhere in his
founding affidavit and replying affidavit does Applicant disclose facts on
which he bases the conclusion that there
were no jurisdictional factors relevant
to the issuing of a certificate authorizing the setting up of a road block.
I fully agree
with Mr Gagela, such failure on Applicant’s part is fatal to Applicant’s case (
See also
ZAMILE MAZANTSANA v
MINISTER OF SAFETY & SECURITY AND
OTHERS
, quoted
supra).
[19]
As stated above Mr Notyesi and Mr Gagela
in interpreting the phrase “
where in the
reasonable circumstances
” seem to equate the situation with the onus
resting
on the Magistrate when deciding
to authorize the issue of a
warrant for
search and seizure in terms of
Section 21
to
23
of the
Criminal Procedure Act
51 of 1977
. I am, however, not precluded from dealing with this aspect since
this is a legal issue. The Court cannot be bound by an incorrect
concession by
a litigant in regard to a legal issue.
See
RUDOLPH AND ANOTHER
v COMMISSIONER FOR
INLAND REVENUE
[1997] ZASCA 23
;
1997 (4) SA 391
(SCA) at 395 D-E ;
SYFRETS PARTICIPATION BOND MANAGERS
v
COMMISSIONER SARS
2001(2) SA 359 (SCA)
at 365C-D;
MOSTERT v OLD MUTUAL LIFE
ASSURANCE
CO. (SA
)
Ltd
2001 (4) SA 159
at 177 I-J to 178
A.
See also:
MATATIELE
MUNICIPALITY
& OTHERS
v PRESIDENT OF THE
REPUBLIC
OF
SOUTH AFRICA AND
OTHERS
2006 (5) 47 (CC) and
MINISTER FOR
JUSTICE &
CONSTITUTIONAL
DEVELOPMENT v MOLEKO
2008 3 All SA 47
(SCA)
In
NOKWANDA SITHONGA
v MINISTER
OF SAFETY AND
SECURITY AND TWO
OTHERS
, Case No. A122/2006 (an unreported judgment of this Division), D.
VAN ZYL, J, though dealing with
Section 13(8)
on another aspect, had the
following to say:-
“
it is clear from a reading of section 13(8) of the Act that the
powers of search and seizure envisaged thereby are in addition to
and outside
the provision of
sections 21
and
23
of the
Criminal Procedure Act. As
stated in
paragraph [19] above, ordinarily the powers of search and seizure are limited
by the provisions of
sections 21
to
23
of the
Criminal Procedure Act. The
requirements laid down in those sections are such that it would not be possible
for a police official to perform the functions
contemplated in section 13(8) of
the Act. In order to primarily achieve the object of prevention of crime,
subsection (8) empowers
and enables police officials to conduct a search and to
seize an article without first having to arrest a person, or being satisfied

upon reasonable grounds that an article referred to in
section 20
of the
Criminal Procedure Act is
in the possession or under the control of any such
person.
Sub-section (8) accordingly enables a police officer to perform a
function he would otherwise not have been able to do without first
having
complied with the provisions of
sections 21
to
23
of the
Criminal Procedure Act
>”
.( my underlining).
I fully agree
with this comment.
[20]
I am mindful of the fact that the impact
of
Section 13(8)
on the fundamental individual rights and constitutional values
should be taken into consideration. Where it infringes upon or make
inroads
into the constitutional rights of the individual, it must be restrictively
interpreted.
See :
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
v R.O. COOK PROPERTIES
2004 (2) SACR
708
SCA at 227 C- D ;
DE WET &
OTHERS v WILIIERS
N.O. & ANOTHER
1953 (4) SA 124
(T);
MINISTER OF JUSTICE
v DESAI N.O
.
1948 (3) SA 395
(A) 403;
MINISTER
OF FINANCE v RAMOS
1998 (4) SA 1096
(C)
at 1101 E- H;
CHIDDEL THOMPSON AND
HUYSON & OTHERS v MINISTER OF LAW AND
ORDER
& OTHERS
1986 (2) SA .279 (W) at 282 E- F; and
POWELL NO AND OTHERS
v
VAN
DER MERWE AND OTHERS
(2005) 1 ALL SA 149
(SCA) at para 59.
In
casu,
however, the Applicant has failed
to disclose the facts on which he bases his conclusion that there were no
jurisdictional factors
on the basis of which the 4
th
Respondent
authorized the issuing of the certificate authorizing the setting up of the
road block in terms of section 13(8) of
the Act.
It is also my
view that the averment by the Applicant that there was no information placed
before the 4
th
Respondent which, if
objectively viewed, rendered it necessary
to authorize the setting up of a road block,
has not been supported by facts.
In
ZANDISILE MAZANTSANA
v
MINISTER OF SAFETY &
SECURITY AND OTHERS,
quoted supra
DILIZO A,J
dealing with
Section 13(8)
of the
South African Police Service Act, 68 of 1995
but on another issue,
remarked as follows:-
“………………….it is clearly not sufficient for the Applicant
to content herself with the mere statement of the conclusions of law without

any factual or jurisdictional facts in support thereof
”
I fully agree
with this remark.
[21]
In the result the prayer to declare the
certificate issued by the 4
th
Respondent attached to the Respondent’s
Answering Affidavit as Annexure “VN1” be declared invalid and of no force and
effect and
be set aside as a nullity , is bound to fail.
[22]
The document issued in terms of
Section
13(8)
of the
South African Police Service Act No. 86 of 1995
, in question here,
authorizes the setting up of a check point or checkpoints in order to perform
the functions of prevention of
crime, investigation of any offence or alleged
offence, maintenance of law and order and prevention of internal security of
the
Republic.
In her
answering affidavit on behalf of 1
st
Respondent, Inspector Vuyokazi
Ntlantsana, states that the purpose of the roadblock was,
inter alia
, the checking of stolen motor vehicles whose engine and
chassis numbers were tampered with, possession of unlinced fire-arms and

prevention of crime generally. In his replying affidavit Applicant did not
respond to this allegation instead he put in dispute
that the 4
th
Respondent had power to authorize the setting up of a roadblock and also
challenged the validity of the document
authorizing the setting up of the roadblock.
Inspector
Vuyokazi Ntlantsana further states that she examined the motor vehicle in
question and observed that the chassis and engine
numbers were tampered with.
She also noticed that the tags of the manufacturer were removed from the motor
vehicle.
In his
replying affidavit Applicant denies that the motor vehicle had any
irregularities. He further denies that the chassis and
engine numbers were
tampered with.
A document by
Francois Muller was annexed to the Respondent’s supporting affidavit by
Inspector Siyabulela Edward Mtshengu. He states
that he is employed at TOYOTA
SA MOTORS as a Vehicle Identification Expert, Specific Technician and Criminal
Investigator since
1986. By virtue of his position he has access to all records
maintained by
TOYOTA
and is responsible for the uniquely identifying of motor vehicles manufactured
by TOYOTA SA MOTORS. He examined the motor vehicle
in question and found the
following:-
(a)
The Manufacturer’s plate was removed from another red motor
vehicle and replaced on motor vehicle in question
(b)
A job tag was removed from the same red Hilux and replaced to
the
motor vehicle in question.
Chassis number is false.
(c)
Engine number is false and has not been stamped by
TOYOTA
Applicant did
not respond in his answering affidavit to the findings by Francois Muller.
[23]
Section 20
of the
Criminal Procedure Act
No.51 of 1977
provides as follows:-
“
the State may in accordance with the provisions 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 on the commission or suspected
commission of an offence
whether within the
Republic or 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”.
[24]
The findings made by the police and by
Francois Muller thereafter, while examining this motor vehicle, in my view,
supports a conclusion
that the motor vehicle in question in this matter was an
item liable to be seized as prescribed in
Section 20
of the
Criminal Procedure
Act No. 51 of 1977
. It is tainted with features which one can reasonably
believe to be concerned in the commission or suspected commission of an offence

and such features were found by the Police before they seized the motor
vehicle.
[25]
Consequently I am of the view that
Applicant is not entitled to the return of the motor vehicle.
[26]
As to costs I find no reason to depart
from the normal rule that a successful party should be entitled to costs.
[27]
In the circumstances the following order
shall issue:-
The
application is dismissed with costs.
______________________________________
D.Z. DUKADA
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:-
For Applicant
:
Mr
MVUZO NOTYESI
Instructed
by Mvuzo Notyesi Inc.
For
Respondents
:
Adv F.S. GAGELA
Instructed
by STATE ATTORNEY
Date Heard
:
26 August 2010
Date Delivered
:
27 January 2011