Gabaathole v Provincial Commissioner of the SAPS: Northern Cape N.O and Others, Stander v Provincial Commissioner of the SAPS: Northern Cape N.O and Others (1516/06, 1517/16) [2006] ZANCHC 68 (13 December 2006)

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[2006] ZANCHC 68
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Gabaathole v Provincial Commissioner of the SAPS: Northern Cape N.O and Others, Stander v Provincial Commissioner of the SAPS: Northern Cape N.O and Others (1516/06, 1517/16) [2006] ZANCHC 68 (13 December 2006)

IN
THE HIGH COURT OF SOUTH-AFRICA
(NORTHERN
CAPE DIVISION)
KIMBERLEY
CASE
NO.: 1516/06 & 1517/16
DATE
HEARD:13-12-2006
DATE
OF JUDGMENT:13-12-2006
In
the matter between:
PATRICK
MOREKISI GABAATHOLE Applicant
vs
THE
PROVINCIAL COMMISSIONER OF THE
SAPS,
NORTHERN CAPE N.O 1
st
Respondent
INSPECTOR
P I VAN RENSBURG N.O 2
nd
Respondent
CONSTABLE
J STRYDOM N.O 3
rd
Respondent
INSPECTOR
BOOYSEN N.O 4
th
Respondent
CONSTABLE
MOLELEKOA N.O 5
th
Respondent
CONSTABLE
MARKGRAAF 6
th
Respondent
THE
MAGISTRATE, COLESBERG N.O 7
th
Respondent
AND
MARALIZE
STANDER Applicant
vs
THE
PROVINCIAL COMMISSIONER
OF
THE SAPS, NORTHERN CAPE N.O 1
st
Respondent
INSPECTOR
MOUTON N.O 2
nd
Respondent
CONSTABLE
PETERS N.O 3
rd
Respondent
CONSTABLE
MPHULANYAE N.O 4
th
Respondent
INSPECTOR
MATSHEBE 5
th
Respondent
CONSTABLE
BARNS 6
th
Respondent
THE
MAGISTRATE, DE AAR N.O 7
th
Respondent
CORAM:
C.C WILLIAMS J:
J U D G M E N T
WILLIAMS
J:
1. These
two applications served before me as a matter of urgency on 13
December 2006. After hearing argument on certain
points
in limine
,
I dismissed both applications with costs. My reasons
therefor
follow.
2. The
applicants in both these matters sought the following relief:
2.1 The
setting aside of a search and seizure warrant (issued in case number
1516/06, the
“Gabaatlhole
application”
,
by the Magistrate, Colesberg and in case number 1517/06, the
“Stander
application”
,
by the Magistrate, (De Aar) in respect, of business premises in both
towns operating under the name
“The
Entertainment Centre”.
2.2 The
setting aside of the execution of the search and seizure warrants.
2.3 The
restoration by the 1
st
to 6
th
respondents of the possession of the items seized at the premises
during the execution of the search and seizure warrants,
inter
alia
gambling machines, money, books and documents.
3. The
applicants allege that the search and seizure warrants are too wide
and vague and that the 7
th
respondents in both instances did not apply their minds when issuing
the warrants.
4. The applicants brought
the applications in their capacities as managers of the businesses,
alleged that they were in peaceful and
undisturbed possession of the
seized items and that such dispossession was unlawful therefore
entitling them to restoration of possession.
5. The
first point
in
limine
taken by the respondents, (which applies to both these applications),
is one of
locus
standi
.
Mr. Botha, who appeared for both sets of respondents, argued that
since the applicants possessed the seized items merely as employees
they were not entitled to spoliatory relief.
6. It
is well known that in order to succeed in spoliatory relief, an
applicant must prove the two elements of possession ie. detentio
(the
physical holding of and control over the thing) and animus (the
intention of securing some benefit for oneself). See
Ness
and another v Greef
1985(4) 641 (CPD) at 647E.
7.
In
casu
the detentio element of the applicants’ possession is not in
dispute. There are however no allegations in the founding affidavits
that they possessed the seized items with the intention of securing
some benefit for themselves over and above their interest as
employees.
8. In
Mpunga v
Malaba
1959(1) SA 853(W) Steyn AJ said the following at 861F:
“
It
seems to me that the authorities have established that a servant or a
person who holds no rights on his own behalf, except insofar
as such
rights derive from an authority given to him by the master, is not
entitled to bring proceedings for a spoliation order,
but that only
the employer can do so. In other words, it seems to me that before a
person can bring spoliation proceedings, he must
show that the right
of which he has been spoliated is something in which he has an
interest over and above that interest which he
has as a servant or as
a person who is in the position of a servant or a quasi-servant”.
9. The
mere detentio of a thing for the benefit of someone else is not
sufficient for a person to claim the relief of a
mandament
of spolie
.
See
Mbuku
v Mdinwa
1982(1) 219(TKSC) at 222 F-G where Hefer CJ has the following to say:
“
In any event, I am
of the view that an agent who has no interest in the property which
he holds for his principal, or who derives
no benefit from holding
it, is not entitled to claim the relief of a mandament van spolie.
One should not forget that it is a remedy
which is available to a
possessor; it has never, to my knowledge, been extended, except
perhaps inadvertently, to a mere detentor.
But the animus possidendi
which is required to transform detentio into possession is not the
intention required of old for so-called
civil possession; it is no
more than the intention to hold the thing in question for one's own
benefit and not for another. And a
detentor who does not have that
intention is indeed merely a detentor. I am in full agreement with
the view expressed in Wille Principles
of SA Law 7th ed at 196 - 7
that
'...
if the person who has detentio of a thing has the intention of
holding it not for himself but for another person, he does not
have
possession, he is a custodian merely and the possessor is the person
on whose behalf he is holding.'
10. In
the light of the authorities cited above, I could not find myself in
agreement with the contentions made by Mr. Jagga, who
appeared for
the applicants. His argument is that the benefit derived by the
applicants which would constitute the
animus
element of their possession is the fact that they as managers had a
custodial duty to look after the goods with a view of receiving
a
salary for their efforts.
11. The
fact that the applicants had custody and control over the goods
constitutes the
detentio
element of possession which, as stated hereinbefore, is not
sufficient on its own for spoliatory relief. The benefit of earning
salaries as a result of such custody and control, to my mind, does
not place the interest the applicants’ have in possessing these
goods anywhere over and above their mere interests as employees and
as such they have no right to spoliatory relief.
12.
Mr. Jagga referred to two more of less similar applications in the
TPD, one the as yet unreported matter of
Sara
Wilhelmina Bennet and another v Captain Pretorius NO and others
case no. 40024/2005 and
Rajah
and others v Chairperson: North West Gambling Board and Others
2006(3) All SA 172(T) where managers of businesses similar to the
businesses
in
casu
had been successful in applying for similar relief. Besides the fact
that those decisions are not binding hereon, the issue of
locus
standi
had not been raised in either of those matters – and it therefore
can hardly be held as precedent for a view other than that held
in
the authorities cited herein.
13. Therefore
on the basis of lack of
locus
standi
alone the applications had to be dismissed.
14. In
the Stander application a further
point
in limine
was taken by the respondents therein. The founding affidavit does
not comply with the requirements of Regulation 4(2) or 7(1) of
the
Regulations governing the administering of oaths and affirmations,
Regulations 1258 of 21 July 1972 as amended.
Regulation
4(2) states that
“the
commissioner of oaths shall;
a) Sign the
declaration and print his full name and business address below his
signature; and
b) State
his designation and the area for which he holds appointment or the
office held by him if he holds his appointment ex officio.”
Regulation 7(1) states
that;
“
A commissioner of
oaths shall not administer an oath or affirmation relating to a
matter in which he has an interest.”
15.
In
casu
,
all that appears in compliance with regulation 4(2) is that an
illegible signature appears above the words
“commissioner
of oaths”
.
The parties appear to be in agreement however that the person who
attested Stander’s affidavit is attorney Harry Rich from De
Aar.
This being the case I would not hesitate to allow the applicant the
opportunity to rectify which in my mind is an obvious oversight.
16. The matter does not
end there however. The respondents, in their opposing affidavit,
aver that while the search and seizure operations
took place the
applicant had contacted attorney Rich who made an appearance at the
premises and consulted with the applicant and
the investigating
officer in his capacity as the applicant’s legal representative.
He had even enquired as to whether the applicant
would be allowed
bail and had left the premises after informing the applicant to call
him again if necessary.
17. This
being an application for final and urgent relief I am bound to
adjudicate the matter on the facts as set out by the respondent
together with those facts averred in the applicant’s affidavit
which have been admitted by the respondent.
Plascon-Evans
v Van Riebeeck Paints
1984(3) 623H-635C.
18. Mr.
Jagga contends that attorney Rich is not affected by the prohibition
contained in regulation 7(1) in that he does not have
an interest in
the application before court. His reasoning seems to be that since
attorney Rich is not the instructing attorney
in the present
application nor does he feature in his role as attorney in any other
form in this application, besides attesting to
the affidavit of the
applicant, that his role as commissioner of oaths has not been
compromised. An affidavit by the applicant’s
instructing attorney,
Mr. Vasilios Vardakos, confirming that:
“. . .Mr. Henry Robins Rich, is not the instructing attorney, nor
an associate of the instructing attorney and not the correspondent
attorney in the matter. . . .
Mr.
Henry Robins Rich is a commissioner of oaths that is impartial,
unbiased and entirely independent from my office, which has drawn
the
founding affidavit and that are annexed to the Notice of Motion.”,
has been handed up in court.
19. It seems to me,
regard being had to the affidavit of the applicants instructing
attorney herein, that attorney Rich is independent
of the offices of
the instructing attorney in this application. Whether he can however
in the circumstances of this matter, be considered
to be impartial
and unbiased is an entirely different matter.
20. Mr.
Jagga has referred to
Radue
Weir Holdings Ltd v Galleus Investments C.C
1998(3) SA 677(ECD) in support of his contention that the interest
referred to in the specific regulation relates to an interest
in the
application (these proceedings) itself or an interest in the offices
of the applicant’s attorneys. On a proper reading
of the
Radue
case
supra
,
it in my view, in fact lends support for the argument of the
respondents - that attorney Rich was involved as applicants attorney
in the subject matter which formed the basis of this application (the
search and seizure operations) and as such his independence
is
questionable. See also
Noordkaaplandse
KO-OP Lewende Hawe v Van Rooyen
1997(1)
SA 403 (NCD) at 407. It follows thus that I am of the view that the
founding affidavit in the Stander application is invalid
and on this
basis also the application had to fail.
___________________________
C.C
WILLIAMS
JUDGE
For
Applocants: Adv. Jagga
Vardakos
Attorneys
For
Defendant: Adv Botha
State
Attorney, Kimberley