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[2008] ZANCHC 37
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SA Truck Bodies (Pty) t/a Trial Star v Minister of Safety of Security and Another (657/2008) [2008] ZANCHC 37 (15 August 2008)
Reportable:
YES / NO
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to Judges:
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to Magistrates:
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to Regional Magistrates: YES /
NO
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case Nr: 657/2007
Heard: 08/08/2008
Delivered:
15/08/2008
In
the matter between:
S
A TRUCK BODIES (PTY) t/a TRIAL STAR APPLICANT
and
THE
MINISTER OF SAFETY AND SECURITY 1
ST
RESPONDENT
SENIOR
SUPERINTENDENT CHRISTO PETRUS HORAK 2
ND
RESPONDENT
JUDGMENT
Moloi
A J:
1.
In
this matter the applicant sought an order reviewing and setting aside
a forfeiture order of certain articles by the South African
Police
Service made in terms of
sec. 31(1)
(b) of the
Criminal Procedure
Act, No. 51 of 1977
and an order for the return of the said articles
seized to the applicant. The seizure and subsequent forfeiture of
the articles
took place on the strength of the provisions of
section
68(6)
of the
National Road Traffic Act No. 93 of 1996
.
Section
31(1)(b)
of the
Criminal Procedure Act, No.51 of 1977
provides as
follows:
“
If
no person may lawfully possess such article or if the police official
charged with the investigation does not know of any person
who may
lawfully possess such article the article shall be forfeited to the
state.”
Section
68 (6)(b) of the National Road Traffic Act No. 93 of 1999 provides as
follows:
“
No
person shall-
(a)…
(b)
without lawful cause be in possession of a motor vehicle of
Which
the engine or chassis number has been falsified, replaced, altered,
defaced, mutilated, or to which anything has been added,
or from
which anything has been removed, or has been tampered with in any
other way.”
2.
The
application is a sequel to the seizure and subsequent forfeiture to
the state by the South African Police Services of two Henred
Fruehauf
interlink trailers (hereinafter referred to as ‘vehicles’
as defined in the National Road Traffic Act) with
chassis numbers AAH
088742-PUFJ-261X and AAH088767-PURF- 2122 having registration letters
and numbers BZC 948 FS and BZV 949 FS,
respectively. The said
vehicles were seized at the Nakop border post between South Africa
and Namibia in a roadblock conducted
by the Vehicle Inspection
Section (VIS) of the South African Police Services, Upington, on 13
August 2004. At the time of the
seizure the vehicles were in the
possession of one Paulus Ndemulaompya of Windhoek, Namibia and
followed upon the inspection of
the two vehicles. The inspection
revealed that the VIN (Vehicle Indentifying Numbers) plates attached
to the vehicles’ chassis
had been tampered with in
contravention of
section 68(6)
of the
National Road Traffic Act No.
93 of 1996
. Upon seizure, the said Paulus Ndemulaompya of Woodway
Carriers, Windhoek, Namibia produced to the police a certificate of
clearance
for export purposes in terms of SADC resolution issued by
Sgt. Williams of the Southern African Regional Police Chiefs
Cooperative
Organisation in Bloemfontein certifying that the two
vehicles were not reported as stolen in South Africa.
3.
Upon
the seizure of the two vehicles the police issued the said Paulus
Ndemulaomupya with a notice calling upon him or any person
having a
legal claim to the articles (vehicles) seized to show lawful cause
why the VIN marks on the said vehicles have been tampered
with within
thirty days of the seizure and that failure to do so would result in
the forfeiture thereof to the state. This notice
set in motion a
protracted flow of correspondence and discussions between the South
African Police Services and the applicant resulting
ultimately in the
forfeiture order of the said vehicles on 9 February 2007 as no
resolution of the impasse could be found.
4.
The
papers filed of record show conclusively that there was, in fact,
tampering with the VIN plates attached to the two vehicles.
The
applicant ascribed the tampering to the repairs that were done to the
vehicles at some stage for one or other reason. The
VIN plates were
then removed and affixed back to the chassis albeit differently in
that only four rivets were used instead of the
original six and that
the holes on the plates and the chassis did not correspond. It also
emerged from the papers filed that the
applicant sold the two
vehicles to one PJ Snyman during 2004 and that the seizure of the
said vehicles by the police followed shortly
thereafter. According
to the applicant, after the seizure of the vehicles by the police, it
replaced them by providing Snyman
with other vehicles (the
particulars of which are not provided) and consequently the ownership
of the vehicles in question reverted
to it.
5.
The
applicant’s case is premised on the ownership of the said
vehicles as stated above. The applicant stated that it did
not
intend to use the said vehicles on a public road as that would
constitute a criminal offence under the
National Road Traffic Act.
Its
objective was to dismantle the said vehicles on private property
and to use the parts thereof for other purposes.
6.
It
was further argued that as no proof had been produced that the said
vehicles had been stolen since the date of the seizure
and equally no
criminal proceedings had been instituted, the vehicles ought to be
returned to the applicant in terms of the provisions
of
section
31(1)(a)
of the
Criminal Procedure Act. The
said section provides as
follows:
“
If
no criminal proceedings are instituted in connection with any
article… the article shall be returned to the person from
whom
it was ceazed, if such person may lawfully possess such article or if
such person may not lawfully possess such article, to
the person who
may lawfully possess it.”
7.
It
was contended that since the applicant had become owner of the
vehicles after giving Snyman replacement vehicles in substitution
after the seizure, it had become an instance which may “lawfully
possess” them and that it should be ordered that it
be placed
in possession thereof.
8.
The
respondents contended that the applicant had no
locus
standi
to
claim the relief sought and, in fact, disputed the claim of ownership
of the said vehicles by the applicant. The Respondents
argued that
the transaction claimed by applicant to have restored ownership of
the said vehicles to it is vague in that no dates
are mentioned on
which it would have taken place nor are the details of the
replacement vehicles given. It was further argued
that the deponent
on behalf of the applicant contradicted himself by not making a claim
of ownership of the said vehicles in an
earlier affidavit filed.
Moreover, it was argued, at seizure of the vehicles, they had been in
the possession of somebody else,
namely Paulus Ndemulaomupya, whose
involvement with the vehicles was not explained. Neither was it
explained how delivery of the
said vehicles to the applicant by
Snyman had taken place as the vehicles were then in the custody of
the South African Police Services.
9.
As
regards the question of possession of the vehicles for purposes of
dismantling them on private property, it was contended on
behalf of
the respondents that what the law prohibited was mere possession of
the disqualified articles irrespective of whether
they were so
possessed on private property or in a public place. The argument
that the applicant would not use the vehicles on
a public road was,
therefore, irrelevant and immaterial.
10.
It
is common cause that the VIN plates on the two vehicles had been
tampered with and that this was prohibited in terms of
section 68(6)
of the
National Road Traffic Act No. 93 of 1996
. This fact was
also confirmed by the applicant in its submission that, as a
consequence of the tampering, it did not intend
using the vehicles on
a public road as this would constitute an offence but it intended to
dismantle them and use the parts thereof
for something else.
11.
If
the applicant succeeded in proving ownership of the said vehicles it
would still not have proved the “lawful cause”
that would
justify it being placed in possession of the said vehicles for as
long as there has been tampering with the VIN plates
attached to the
chassis of the said vehicles. In
Marvanic
Development (Pty) Ltd and Another v Minister of Safety and Security
and Another
,
2007 (3) SA 159
SCA at 162 G-H
Lewis
J A
stated:
“
I
emphasise that it is not possession of the vehicle
per
se
that it is unlawful: it is the possession of a vehicle with false
engine or chassis numbers that is ‘without lawful cause’.”
Earlier on p162 B-C
she stated as follows regarding the provision of
sections 68
(1) (b)
placing a prohibition on possession of a disqualified vehicle:
“
The
section makes possession that might otherwise be lawful unlawful. At
the time when the vehicles were seized, their possession
was thus
‘without lawful cause’ even if the appellants were also
the owners. The fact that the vehicles were seized
does not mean
that their return would make possession lawful.”
See
also the yet unreported case of
Basie
Motors Bk t/a Boulevard Motors v Minister of Safety and Security
,
Case No. 135/05 SCA.
12
. There
are, in addition, several unanswered questions relating to the
applicant’s claim of ownership to the said vehicles.
The
purported ownership would form the basis of the applicant’s
locus
standi
in
this matter. The significant aspects that remained unexplained are
the following: The vehicles were seized in the possession
of Paulus
Ndemulaompya of Woodway Carriers in Windhoek, Namibia and they were
destined for export to Namibia according to the papers
given to the
police by Paulus Ndemulaompya himself. The applicant’s address
is given as 43 George Lubbe Street, Hamilton,
Bloemfontein and is
said to be doing business also elsewhere in the Republic of South
Africa. Nothing is said about Namibia.
On what basis the vehicles
were exported to Namibia, to whom, and for what purpose was not
explained. In which capacity did Paulus
Ndemulaompya have possession
of the said vehicles when they were seized by the police? What is or
was the relationship between
him and the applicant? Is or was there
any relationship between the applicant and Woodway Carriers in
Namibia and, if so, what
relationship? What, if any, was the
relationship between Paul Ndemulaompya and Snyman or Snyman with
Woodway Carriers?
13
. As
a consequence, I find that the applicant has failed to establish its
locus
standi
and it has failed to prove a lawful cause to entitle it to possession
of the said vehicles.
The
application is consequently dismissed with costs.
_______________
K
J MOLOI
ACTING
JUDGE OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the Applicant: Adv. S. Reynders
Instructed
by: Duncan & Rothman Attorneys
For
the Respondents: Adv. W. Coetzee
Instructed
by: State Attorney