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[2008] ZANCHC 46
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Polonyfis v Provincial Commissioner: SAPS: NC and Others (245/2008) [2008] ZANCHC 46 (25 April 2008)
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IN THE HIGH COURT OF
SOUTH AFRICA
(Northern Cape
Division)
Case
Nr:
245/2008
Case
Heard:
18/04/2008
Date
delivered:
25/04/2008
In
the matter between:
E
Polonyfis
PLAINTIFF
and
The
Provincial Commissioner: SAPS: NC
1
st
RESPONDENT
Insp
K P Motshebe NO 2
nd
RESPONDENT
Insp
K Williams NO 3
rd
RESPONDENT
Const
B S Tawanyawe NO 4
th
RESPONDENT
T
Mabilo NO 5
th
RESPONDENT
Insp
B M Motshebe NO 6
th
RESPONDENT
Const
G G Bogosi NO 7
th
RESPONDENT
The
Magistrate, Kuruman NO 8
th
RESPONDENT
Coram:
Olivier J
JUDGMENT
Olivier J:
During January 2008
members of the South African Police Services and of the Northern
Cape Gambling Board seized various items
at the applicant’s
business premises in Kuruman. In doing so, the particular members
acted upon search warrants which
had been issued by the magistrate,
Kuruman.
The
applicant, mr Elefterios Polonyfis, applie
d
for the review and setting aside of both search warrants, as well as
the setting aside of the execution thereof, and for an
order that
his possession of the seized property be restored.
The
provincial commissioner for the South African Police Service,
Northern Cape, was cited in his capacity as such as the first
respondent, the members of the Police and of the Northern Cape
Gambling Board involved in obtaining the search warrants and
executing them as second to seventh respondents and the Magistrate,
Kuruman, as the eighth respondent.
On
behalf of the respondents it was conceded that both search warrants
fall to be set aside. I agree and accordingly will not
deal with
the reasons therefor in any detail, suffice to say that it appears
that the information relied upon in issuing the
search warrants did
not even include allegations to the effect that it was suspected
that the particular property on the applicant’s
premises
constituted articles as envisaged in section 20 of the Criminal
Procedure Act, 51 of 1977 (compare
Toich
v The Magistrate, Riversdale and Others
2007 (2) SACR 235
(CPD)).
The
respondents have furthermore tendered to return the seized property
to the applicant, with the exclusion, however, of those
articles
which, according to the respondents,
prima
facie
are gambling devices as envisaged in section 88(8) of the Northern
Cape Gambling and Racing Act, 5 of 1996 (“
the
NCGR Act
”).
Their case is that section 88(8) would render mere possession of
such devices by the applicant illegal and that an
order compelling
them to place the applicant in possession of such devices would have
the effect that the respondents would contravene
section 88(8)
themselves.
The
respondents requested a postponement of the application to enable
them to have the devices examined by an expert with a view
to
determining whether they are indeed gambling devices or machines.
On
behalf of the applicant it is, however, argued that the application
is essentially based on the
mandament
van spolie
,
that the question whether the applicant has the right to possess the
devices therefore cannot be raised as a defence and that
the
particular items should therefore also be returned to the applicant.
It
is indeed so that the unlawfulness of the possession of an applicant
relying on the
mandament
van spolie
would generally not be a valid defence (see
Willowvale
Estates CC and Another v Bryanmore Estates Ltd
1990 (3) SA 954
(WLD) and
Silverberg
and Schoeman’s The Law of Property
,
5
th
edition, Badenhorst
et
al
,
pp 289, 302 and 303).
The
rationale for this approach is
the fact that the remedy is aimed at “
the
reversal of the consequences of interference with an existing state
of affairs otherwise than under authority of the law,
so that the
status
quo ante
is restored
”
and to protect society “
against
self-help
”,
even if it would require of a Court “
to
assist a party who should not have possession
”
(see
Mbangi
and Others v Dobsonville City Council
1991 (2) SA 330
(WLD) at 336).
The
applicant does not deny the allegation that the particular devices
are gambling devices. He also does not deny not having
a valid
licence in respect of the devices. He merely claims to be using the
devices in a way that would, according to him, constitute
“
amusement
games
”
as envisaged in section 1, read with
section 47
, of the
National
Gambling Act, 7 of 2004
(“
the
NG Act
”;
an activity which has, however, on the applicant’s own version
not yet been regulated or licensed as envisaged
in section 1 of the
NG Act.
The
argument for the applicant is that, even if possession of the
devices by the applicant under these circumstances would be
not only
unlawful, but in fact illegal (and a contravention of section 88(8)
of the NCGR Act), the respondents should nevertheless
be ordered to
return them to the applicant. The argument is that the principle
that the unlawfulness of the applicant’s
possession could not
be a valid defence to a spoliatory claim would still apply,
regardless of the fact that such possession
might constitute a
criminal offence.
In
this regard the applicant relies, in the first place, on the case
of
Yeko
v Qana
1973 (4) SA 735
(AD), where van Blerk JA at 739 remarked as follows:
“…
the
injustice of the possession of the person despoiled is irrelevant as
he is entitled to a spoliation order even if he is a thief
or a
robber. The fundamental principle of the remedy is that no one is
allowed to take the law into his own hands. All that the
spoliatus
has to prove, is possession of a kind which warrants the protection
accorded by the remedy and that he was unlawfully ousted.
”
The
Yeko
case is to some extent distinguishable. I don’t think that
the conduct of the second to seventh respondents, in obtaining
warrants before seizing the property, can be equated with self-help
in the sense involved in the
Yeko
case (see
Polonyfis
and Others v The Provincial Commissioner for the SAPS, Northern
Cape and Others
,
an unreported judgment by Kgomo JP in this division, delivered on 15
June 2007 under cases numbers 1573/06, 1590/06 and 103/07).
Also
mere possession would not have constituted an offence on the facts
in the
Yeko
matter.
The
case of
Dyani
v Minister of Safety and Security and Others
2001 (3) All SA 310
(Tk) also appears to be distinguishable.
Although the Court in that matter concluded that it would have been
competent to order
the return of the motor vehicle, this conclusion
was based upon the particular facts of that case, and more
specifically on the
fact that it had not been shown that the mere
possession of the motor vehicle would constituted an offence. In
terms of s 125(5)(b)
of the Road Traffic Act of 1989 possession
“
without
lawful cause
”
would have been required to constitute the particular offence.
The
cases of
De
Jager and Other v Farah and Nestadt
1947 (4) SA 28
(WLD) and
Ntshwaqela
and Others v Chairman, Western Cape Regional Services Council
1988 (3) SA 218
(CPD), on which mr Jagga also relied on behalf of
the applicant in this regard, do however appear to support his
argument (see
also
Vena
and Another v George Municipality
1987 (4) SA 29
(CPD) and
Bennet
and Another v Pretorius and Others
,
an unreported judgment delivered on 20 June 2006 in the Transvaal
Provincial Division under case no 40024/2005, paragraphs [29]
and
[30]).
On
the other hand there is the case of
Parker
v Mobil Oil of Southern Africa (Pty) Ltd
1979 (4) SA 250
(NCD) in this division. There van den Heever J (as
she then was) made the following remarks at 255 (
albeit
obiter
):
“
moreover, the
rule that goods dispossessed against the will of the possessor must
be restored forthwith, is not an absolute one.
The reason for the
rule is, according to the authorities, certainly not because the fact
of possession is elevated to a right stronger
than
plenum
dominium
,
but to discourage breaches of the peace by self-help in the case of
dispute. Despite generalizations that even the thief or robber
is
entitled to be restored to possession, I know of no instance where
our Courts, which disapprove of metaphorical grubby hands,
have come
to the assistance of an applicant who admits that he has no right
vis-à-vis the respondent to the possession he
seeks to have
restored to him. (Cf
Judelman
v Colonial Government
3 BAC 446
(19 CTR 442 at 444).)
Certainly the
existence of spoliation procedure does not abrogate common law rules
that dispossession may be lawful by virtue of
one's right to protect
oneself or others against serious harm, where immediate action is
required, any more than it renders nugatory
statutory authority to
dispossess, cf
Moleta
en 'n Ander v Fourie
1975 (3) SA 999
(O) and the cases dealing with the impounding of
livestock. Public policy may not require immediate action to prevent
trading without
a licence (
Yeko
v Qana
1973 SA 735
(A)); but different considerations may apply where
respondent's action prevented the commission of a more serious
offence (
Scoop
Industries (Pty) Ltd v Langlaagte Estate and Gold Mining Co Ltd (in
Voluntary Liquidation)
1948 (1) SA 91
(W) ); and must apply where respondent's action is
aimed at preventing serious injury. (Cf
Nisenbaum
and Nisenbaum v Express Buildings (Pty) Ltd
1953
(1) SA 246
(W)).”
Although
this attitude was criticised by some (see
“Spoliation
Proceedings and the ‘Grubby-handed’ Possessor”,
South African Law Journal
vol 98, 1981, page 36 and
The
Law of South Africa
First
Reissue, vol 27, paragraph 272), it was referred to with apparent
approval in
Coetzee
v Coetzee
1982 (1) SA 933
(CPD) at 935D-E (see also
Ngewu and Others v Union Co-operative Bark and Sugar Co Ltd;
Masondo and Others v Union Co-operative Bark and Sugar
1982 (4) SA 390
(NPD) at 406F).
Although
distinguishable
because they did not concern spoliatory relief, regard could
nevertheless also be had to the more recent cases
of
Marvanic
Development (Pty) Ltd v Minister of Safety and Security
2007 (3) SA 159
(SCA) and
Basie
Motors Bk t/a Boulevard Motors v Minister of Safety and Security
[2006] SCA 35 (RSA). In both these cases the majority judgements
were based on a finding that, although the applicants would
otherwise as owners have been entitled to the return of their
property in terms of
section 31(1)(a)
of the
Criminal Procedure Act,
this
could not be ordered if their possession would constitute an
offence under the provisions of the
National Road Traffic Act, 93 of
1996
.
It
is not difficult to conceive of situations where the potential harm
or consequences inherent in restoring possession may outweigh
the
consequences and general disapproval of unlawful dispossession;
particularly where the circumstances under which the unlawful
dispossession had taken place had not amounted to blatant
self-help, but rather to a failure to fully comply with procedural
requirements. In such a case it may become necessary to develop the
common law principles applicable to the remedy of
mandament
van spolie
,
and more specifically the defences thereto (see
section
39(2)
of the
Constitution
,
Act 108 of 1996); especially where the prejudice to a fundamental
right or to the execution by the Police of the objects set
out in
section 205(3) of the Constitution would outweigh the potential
consequences of “
condoning
”
unlawful dispossession in a particular case.
It
is not, however, in this case necessary to go to such lengths.
There is no reason why, if renewed possession of the devices
would
constitute an offence on the part of the applicant in this matter,
that could not be addressed through due criminal process.
There is
on
the respondents’ papers also no reason why a proper and valid
search warrant could not be obtained if necessary. No
case has been
made out to the effect that the devices, which can be seen on the
photographs forming part of the respondents’
papers, could
easily and swiftly be concealed if returned to the applicant.
To
postpone the matter to enable the respondents to prove that the
devices are indeed gambling devices would therefore serve no
purpose
and would unjustifiably frustrate the applicant’s right to
spoliatory relief. The applicant has made out a case
that he has
been unlawfully dispossessed of his property (including the devices)
and, even if a case had been made out that a
postponement would
preserve the articles to assist the criminal investigation, it would
not be desirable for this Court to deny
the applicant the relief
that he is entitled to under these particular circumstances (compare
National
Director of Public Prosecutions and Another v Mahomed
2008 (1) SACR 309
(SCA) at paragraphs [19] to [22], but see also
National
Director of Public Prosecutions v Zuma and Another
2008 (1) SACR) 258
(SCA) at 278g-282d).
It
follows that the applicant is entitled to the relief claimed in
paragraphs 2 and 3 of the notice of motion. Whether or not
the
application was urgent when initially moved on 14 March 2008 was not
argued and has become moot.
Whereas
the applicant had initially, in his notice of motion, only claimed
costs on a party and party scale against those respondents
who would
oppose the application, he has since taken the stand that the
respondents should be ordered to pay the costs of the
application on
the scale of attorney and own client. The applicant claims that
“
the
respondents are merely attempting to frustrate the due process of
law and to utilise this as a further attempt to do so in
a forum and
through a process which is not the correct forum or process to do
so”
.
The
respondents have not at all been unreasonable or obstructive in
their attitude. I also fail to see how the abovementioned
unreported
Polonyfis
judgment of Kgomo JP could provide any support for this contention
by the applicant. In my view there is no basis at all for
a
punitive costs order.
On
the contrary, had mr Coetzee, who appeared on behalf of the
respondents, not suggested (and argued) that costs should follow
suit, I would have been very tempted to consider ordering each party
to pay its own costs. The fact that I may be constrained
to order
the return of the devices to the applicant, would not mean that I
would not have the normal discretion as regards costs.
On
the applicant’s own version he conducted so-called amusement
games while it had not yet been legalised and regulated
by means of
provincial legislation, as envisaged in s 1 of the NG Act. It is
quite clear that the applicant wants the devices
returned for
purposes of the “
business
”.
I have serious doubts about whether the province’s “
failure
”
to regulate the conducting of amusement games would constitute a
defence to a charge in terms of s 88(8) of the NCGR Act.
The
respondents have also gone a long way in making out a case that the
activities conducted at the applicant’s businesses
did in any
event not amount to amusement games as envisaged in the NG Act and
its regulations, and the applicant chose not to
deal with those
allegations.
In
view of mr Coetzee’s attitude I have, however, decided to
refrain from coming to a conclusion in this regard and will
adopt
the normal approach that costs follow suit.
The following orders
are therefore made:
1.
The
respondents’ application for postponement, as set out in its
notice of motion dated 7 March 2008, is dismissed with costs
on a
party and party scale.
2. 2.1 The
search warrant issued by the 8
th
respondent on 14 December 2007 in respect of the business African
Entertainment Centre, Voortrekker Road, Kuruman, is reviewed
and set
aside.
2.2 The
execution of the said search warrant is set aside.
3
. 3.1 The
search warrant issued by the 8
th
respondent on 14 December 2007 in respect of the business Oasis
Private Club, Livingstone Street, Kuruman, is reviewed and set
aside.
3.2 The
execution of the said search warrant is set aside.
The
1
st
to 7
th
respondents are ordered to forthwith restore to the applicant the
possession of the items seized at the abovestated business
premises
during the execution of the warrants referred to above.
The respondents are
ordered to pay the costs of the applicant’s application on a
party and party scale.
________________________
C J OLIVIER
JUDGE
NORTHERN CAPE
DIVISION
For the
Plaintiff:
Adv
N Jagga
Instructed
by:
Van der Wall & Vennote, KIMBERLEY
For the
Respondent: Adv W Coetzee
Instructed
by: State Attorney KIMBERLEY