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[2010] ZAFSHC 147
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Mathabatha v Minister of Safety & Security (5127/2010) [2010] ZAFSHC 147 (18 November 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 5127/2010
In
the matter between:-
DD
MATHABATHA
…................................................................
Applicant
and
MINISTER
OF SAFETY AND SECURITY
…........................
Respondent
_____________________________________________________
HEARD
ON:
11 NOVEMBER 2010
_____________________________________________________
DELIVERED
ON:
18 NOVEMBER 2010
_____________________________________________________
JUDGMENT
_____________________________________________________
H.M. MUSI, JP
[1]
In this application, which was brought by way of urgency in terms of
Rule 6(12) of the Uniform Rules, the applicant seeks an
order
directing the respondent to hand over to him his motor vehicle, an
Isuzu bakkie with registration number 4JK1716770. The
bakkie was
seized by the police in terms of section 20 of the
Criminal Procedure
Act, 51 of 1977
, on the basis that it was concerned in the commission
of an offence. The bakkie was being driven by someone in the area of
Petrus
Steyn/Ficksburg and when the police stopped it, the driver got
out and ran away. It turned out that the bakkie was being used to
transport dagga. Criminal charges relating to contravention of the
provisions of the Drugs and Drugs Trafficking Act, 140 of 1992,
are
being investigated, but no one has been charged as yet since the
driver of the bakkie at the time has not been found. His female
passenger has apparently denied any involvement in the transportation
of the dagga and has not been charged.
[2]
In opposing the application the respondent has pleaded
inter alia
that there was no basis for urgency in this matter. Mr. Manye, for
the respondent, persisted with this ground in argument. I propose
to
deal with this ground right away. The factual matrix relating to this
issue are set out hereunder.
[3]
The applicant’s version is that he lent the bakkie to an
acquaintant, Thabiso Modibedi, on 17 May 2010 with the understanding
that it would be returned by about 22 May 2010. On 20 May 2010
Modibedi telephoned the applicant and disclosed that he had been
caught by the police whilst transporting dagga with the bakkie and
that he had run away leaving his wife behind, who was then arrested
by the police. Later Modibedi told him to have the documents proving
his ownership of the bakkie ready so that they should be shown
to the
investigating officer in the matter. The applicant subsequently went
to Ficksburg to meet with the investigating officer
and he handed
over to the latter the relevant documents as well as the spare keys
of the bakkie. The applicant was accompanied
by Modibedi and his
wife. The investigating officer promised to make the necessary
arrangements for the release of the bakkie and
that he would
telephonically advise the applicant when to fetch it. When the
investigating officer did not contract him, the applicant
approached
an attorney and on 27 July 2010 the attorney addressed a letter to
the police at Petrus Steyn requesting them to release
the bakkie. On
the same date another letter demanding return of the bakkie was
addressed to the national commissioner of the South
African Police in
Pretoria. No response was received to the above letters and on 2
September 2010 a letter was addressed to the
prosecutor at the
magistrates’ court, Lindley. In this letter documents
evidencing the applicant’s ownership of the
bakkie, copy of the
letter addressed to the police on 27 July 2010 and an affidavit by
the applicant (apparently explaining the
loan of the bakkie to
Modibedi) were attached. The prosecutor was requested to place the
matter on the roll of 15 September 2010
so that an application could
be made in terms of
section 34(6)
of the
Criminal Procedure Act for
return of the bakkie to the applicant. This letter followed upon a
visit by the applicant to the same prosecutor. The matter was
not
enrolled as requested and the applicant’s attorney, who had
attended court on 15 September 2010, knew this. The instant
application was launched on 8 October 2010 and was set down for 14
October 2010. The respondent opposed it and it was postponed
to 11
November 2010 to allow for a full exchange of pleadings.
[4]
The above version of the applicant is not disputed save in the
following respects:
Firstly,
the investigating officer, Warrant Officer Alfonso Kokonyane,
disclosed in the answering affidavit that the applicant made
a
statement to him which was signed on 8 June 2010. In it the applicant
says that he lent the bakkie to one Johannes and that the
latter has
since disappeared. No mention is made of Thabiso Modibedi or his
wife. The investigating officer denies that he had
promised to
release the bakkie.
Secondly,
the respondent points out that whereas the applicant says Modibedi
and his wife were with him when he went to see the
investigating
officer in Ficksburg, he did not disclose to the latter that Modibedi
was the man who had transported dagga in his
bakkie, nor that the
woman found by the police in the bakkie was Modibedi’s wife.
According to the police it was in fact
Dimakatso Johanna Moleko who
was accompanying the driver of the bakkie. The respondent averred
that the concealment of and contradictions
about the identity of the
driver of the bakkie and his passenger raises question marks about
the applicant’s explanation
and points to him being complicit
in the transportation of the dagga.
[5]
In my view, the fact that the applicant was accompanied by Modibedi
when he went to meet the investigating officer and yet failed
to
disclose that Modibedi was the culprit that the police were looking
for points to dishonesty and puts a serious dent on his
averment that
he had not known the purpose for which his bakkie was to be used, but
that is besides the point in the present enquiry
relating to urgency.
[6]
In support of his argument that urgency has been established, Mr.
Pienaar, for the appellant, referred to the judgment in
NELSON
MANDELA METROPOLITAN MUNICIPALITY AND OTHERS v GREYVENOUW CC AND
OTHERS
2004 (2) SA 81
(SECLD) where it was held that
protracted attempts by a litigant to resolve a dispute before
launching an urgent application did
not have the effect of negating
urgency. See also
STOCK AND ANOTHER v MINISTER OF HOUSING AND
OTHERS
2007 (2) SA 9
(CPD) at 12 I – 13 A.
[7] In my view, the
instant case is distinguishable from the above cases. Assuming that
the applicant was justified in first, negotiating
with the police for
the return of his bakkie, this would apply to the period up to 15
September 2010 when the matter was supposed
to be enrolled at the
magistrates’ court, Lindley. There is no explanation whatsoever
for the intervening period between
15 September 2010 and 8 October
2010. Besides, there are other intervening periods when nothing was
done. For instance, there is
no explanation why would the applicant
wait for more than a month from seeing the investigating officer on 8
June 2010 up to 27
July 2010 when he ultimately consulted with his
attorney. The matter is compounded by the applicant’s reasons
for urgency,
which are set out in paragraph 7 of the founding
affidavit. The main reason is that the bakkie is pivotal for the
operation of
his fruit and vegetable business and he says that its
absence is causing him financial loss, resulting
inter alia
in
inability to pay the monthly instalments under the credit agreement
relating thereto. Yet he had seen fit to lend it out and
it took him
five months before approaching the court for relief inspite of clear
indications that the police were not interested
in releasing it.
[8] I come to the
conclusion that the applicant has not made out a case for urgency.
That means that the matter is not properly
on the roll and in these
circumstances I do not think it will be appropriate to make any costs
order.
The application is struck
off the roll.
____________
H.M. MUSI, JP
On
behalf of applicant: Adv. C.D. Pienaar
Instructed
by:
Rosendorff
Reitz Barry
BLOEMFONTEIN
On
behalf of respondent: Adv. T.L. Manye
Instructed
by:
State
Attorney
BLOEMFONTEIN
/sp