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[2024] ZAECBHC 26
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Vula v Minister of Safety and Security (126/2022) [2024] ZAECBHC 26 (27 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
REPORTABLE
Case No. 126/2022
In the matter between:-
MKHUSELI
VULA
Applicant
and
MINISTER
OF SAFETY AND SECURITY
Respondent
JUDGMENT
BANDS J:
[1]
In
accordance with the provisions of section 31(1) of the Criminal
Procedure Act, 51 of 1977 (“
the
Act
”),
the applicant seeks the return of his .303 calibre rifle (“
the
rifle
”),
seized in terms of section 20 of the Act. The lawfulness of the
seizure is not in dispute; it being the applicant’s
case that
the rifle was seized with his consent, together with his firearm
licence.
[1]
Accordingly,
the seizure, more specifically, falls within the ambit of section
21(a) of the Act.
[2]
[2]
Notwithstanding
the lawfulness of the seizure, the State’s right of retention
is not without limitation. The word “
seize
”,
in the context of section 20, encompasses not only the act of taking
possession of an article, but also its subsequent
detention.
[3]
The manner in which the police are permitted to deal with a seized
article is provided for in sections 30 to 36 of the Act.
How an
article is to be disposed of where no criminal proceedings are
instituted or where it is not required for such proceedings
is set
out in Section 31 of the Act, which provides as follows:
“
(1)
(a) If no criminal proceedings are instituted in connection with any
article referred to in section
30(c) or if it appears that such
article is not required at the trial for purposes of evidence or for
purposes of an order of court,
the article shall be returned to the
person from whom it was seized, 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.
(b) If no person may
lawfully possess such article or if the police official charged with
the investigation reasonably does not
know of any person who may
lawfully possess such article, the article shall be forfeited to the
State.
(2)
The person who may lawfully possess the article in question shall be
notified by registered post
at his last-known address that he may
take possession of the article and if such person fails to take
delivery of the article within
thirty days from the date of such
notification, the article shall be forfeited to the State.
”
[3]
Section 31
must be read as an adjunct to section 20
[4]
in that both sections are aimed at facilitating the investigation of
offences (or the suspected commission of an offence), with
which the
seized article is connected, and the prosecution of suspected
offenders.
[5]
The right
conferred upon the State by the aforementioned provisions to deprive
a person of their lawful possession of an
article does not operate
indefinitely.
[4]
The
court, in
Dookie
v
Minister
of Law and Order
,
[6]
gave
a wide interpretation to
the
wording, “
no
criminal proceedings are instituted
”,
and held that what the section requires of an applicant is to prove,
on a balance of probabilities, that: (i) no criminal
proceedings were
pending at the time of the institution of the envisaged application;
and (ii) there was no reasonable likelihood
of the institution of
criminal proceedings, in connection with the article seized, in the
foreseeable future. This approach
was, more recently, confirmed
by the
Supreme Court of Appeal in
Minister
of Police and Another v Stanfield and Others.
[7]
If the applicant succeeds in discharging the aforesaid onus, the onus
shifts to the State to prove, on a balance of probabilities,
that the
applicant is not lawfully entitled to the possession of the article
seized. Put differently, section 31(1)(a) calls
for a
two-staged enquiry. In the first stage of the enquiry, the onus
is on the applicant and in the second, the onus shifts
to the
State.
[8]
[5]
It is
axiomatic that considerations of reasonableness and fairness,
underpinning the criminal justice system, dictate that the criminal
proceedings contemplated in section 31 must be instituted within a
reasonable time.
[9]
This
requirement is central to any civilised criminal justice system.
In this regard, Snyders AJ, in
Buys
v Minister of Police and Another
[10]
stated that:
“…
the
State must act with reasonable expedition in instituting criminal
proceedings. Thus the articles must be returned to the applicants
where time taken to investigate becomes so extended that it
constitutes an act oppressive of the applicants’ rights. There
must also not be any real prospect of further advance by the State in
the investigation
.”
[6]
Accordingly, in applications of this nature, the length of the
detention
is an important factor which must be considered against the
facts of each case. What may constitute an unreasonable delay
in one matter, leading to the ineluctable conclusion that
there
is no reasonable likelihood of the institution of criminal
proceedings in the foreseeable future, may in another, involving
complex issues requiring more extensive investigations, result in a
conclusion of reasonableness.
In the assessment
of reasonableness, I am in agreement with the comments of Erasmus J
in
Ntoyakhe
, in
which he stated that:
“…
the
police are required to place facts and circumstances before the court
on which the reasonableness of the further detention shall
be
adjudged.
”
[7]
Consequently, when faced with a delay in the institution of
proceedings,
it would hardly suffice for the police to state that an
article is being detained for the purposes of ongoing investigations,
without
more. I return to this aspect later.
Assessment
of the evidence
[8]
The background to the application, as set forth by the applicant, is
as
follows.
[9]
On 10
January 2015,
[11]
the
applicant, in preparation for a traditional initiation ceremony
taking place at his home, attended to the slaughtering of a
cow by
utilising the gunshot method, which was his usual practice. The
applicant, thereafter, attended upon the residence
of his girlfriend,
cited only as “
Zingiswa
”,
to change into clean clothing. Upon his arrival, an altercation
ensued between the two of them. Having overheard
the argument,
two of Zingiswa’s male relatives approached the applicant,
demanding an explanation. This led to an exchange
of words
between the men, which ultimately escalated into the assault of the
applicant. Given the severity of the assault,
the applicant
lost consciousness. Whilst awaiting an ambulance, he was awoken
by a male member of the South African Police
Service (“
SAPS
”)
and informed that he was being arrested for assault and the pointing
of a firearm (both of which the applicant denies).
It was at
this juncture that the articles in question were seized. Given
the severity of the applicant’s injuries and
the delay in the
arrival of the ambulance, the applicant was transported to Victoria
Hospital by two police officers, where he
received emergency
treatment. He was thereafter transferred to Cecilia Makiwane
Hospital for further treatment.
[10]
Following the applicant’s discharge during July 2015, he
attended upon the Chungwa
police station to obtain a status update in
respect of the criminal case against him. His efforts yielded
no information.
During the period of July 2015 and March 2018,
the applicant frequented the police station, in vain, every three
months.
He thereafter approached his attorneys of record for
assistance in March 2018 who formally demanded, on his behalf, the
return
of the seized items. The response to the demand served
only to record that the correspondence “
had been forwarded
to the province in whose jurisdiction the cause of action arose, with
a view to investigate and to attend to
the matter in consultation
with the State Attorney concerned
”. The applicant,
who is a pensioner living off a state pension, decided (at that
stage) not to proceed with litigation
for the return of his
property. He was hopeful that, in time, the issue would be
resolved without the need to litigate.
In August 2019, he again
attended upon the Chungwa police station, this time armed with the
written communication, referred to
above, and demanded to speak to
the station commander. The applicant contends that, to his
“
dismay, the station commander advised
(him)
that he
does not think that
(he)
will ever recover the rifle unless
(he)
approaches the court
.”
[11]
The application was thereafter launched in February 2020, close on
five years following
the seizure of the items in question. As
no further affidavits were filed in the matter post-August 2020,
there is no explanation
on the papers before me regarding the delay
in the hearing of the application other than to note from the court
file that the matter
has been postponed; alternatively, removed from
the roll, on three prior occasions.
[12]
Whilst being mindful of the two-stage enquiry, to which I have
referred, and the onus resting
upon the applicant in the initial
stage (the discharge of which I turn to later), it bears mention at
this juncture that the evidence
adduced by the respondent in opposing
the application is wholly inadequate. I say this for the
following reasons.
[13]
Firstly,
the facts set out by the applicant are not seriously disputed.
More particularly, the respondent’s deponent
simply denied the
vast majority of the applicant’s allegations and “put him
to the proof thereof”, whatever that
may mean in the context of
application proceedings where: (i) the affidavits constitute both the
pleadings and the evidence and
where the issues and averments in
support of the parties’ cases should appear clearly
therefrom;
[12]
and (ii) the
disputes of fact (in applications for final relief), if any, fall to
be resolved in accordance with the
Plascon-Evans
[13]
rule.
[14]
Secondly,
the deponent to the respondent’s answering affidavit, has no
personal dealings with or knowledge of the facts attested
to by him,
despite his assertion to the contrary (in generalised terms).
This much is manifest from his own affidavit.
He is neither the
investigating officer involved in the matter, nor was he present at
the scene on the day in question. He
is an employee of the
respondent in its department of Legal Services, Eastern Cape,
stationed in Makhanda, some 136 kilometres
away from the Chungwa
police station. The limited version placed before the court by
the respondent is based on the affidavits
contained in the docket,
deposed to in 2015 by the complainant; the investigating officer; and
the officer who seized the articles.
On a reading of these
affidavits, it is apparent that the respondent’s version is, in
certain respects, inconsistent with
that contained in the affidavits
upon which the respondent seeks to rely. The respondent, for
reasons which are unclear to
me, elected not to file affidavits (in
these proceedings) deposed to by those persons who are the actual
witnesses to the event
and/or have personal knowledge of the facts
and status of the investigation, which I was entitled to expect.
[14]
In the absence thereof, the evidence placed before court on behalf of
the respondent is hearsay evidence and is accordingly
inadmissible.
[15]
The
respondent has accordingly failed to allege facts to substantiate the
denial of the version alleged by the applicant (which
version I
accept), in circumstances where he was required to seriously and
unambiguously address those facts that he wished to
place in
dispute. For the reasons stated, I attach no weight to the
respondent’s denial,
[15]
there existing no real dispute of fact on the papers.
[16]
Leaving aside the question of admissibility, a further aspect of the
respondent’s
answering affidavit requires comment.
[17]
The only allegations pertaining to the status of the investigation
and the reasonableness
of the further detention of the articles is as
follows:
“
15.
This is the information that can be provided at this stage in terms
of background to this matter as
it is still sub judice and Qoma is
still in the process of investigating the matter.
16.
While the matter is sub judice, the applicant is not entitled to his
firearm until such
time as the investigation is complete and/or his
license may be terminated if he “becomes or is declared unfit
to possess
a firearm” in terms of the Fire Arms Control Act 60
of 2000 “FCA”
.”
[18]
Apart from
the obviously mistaken reliance on the
sub
judice
rule,
[16]
which finds no
application in the present context, the respondent has failed to
place any facts and circumstances before the court
upon which I am
able to adjudge the reasonableness of the articles’ further
detention in circumstances where the facts overwhelmingly
indicate to
the contrary.
The
two-staged enquiry
[19]
Turning to the two-staged enquiry, the first issue which requires
determination is whether
the applicant has discharged the onus of
proving, on a balance of probabilities, that no criminal proceedings
have been instituted
in connection with the seized articles. It
is undisputed that no criminal proceedings were pending at the time
of the institution
of the present application. That being so,
the applicant needs only to prove that
there
is no reasonable likelihood of the institution of criminal
proceedings, in connection with the articles seized, in the
foreseeable
future. The standard of proof remains unchanged.
[20]
On the facts
of the present matter, I have no difficulty in drawing the inference
that this requirement has been met by the applicant.
Even if I
were able to accept the version of the respondent, which I cannot
(for the reasons stated), it is clear that: (i) the
police have taken
no steps to further investigate the matter since 2015, nor have they
any intention of doing so; and (ii) they
have insufficient evidence
to warrant the prosecution of the applicant. There can be no
doubt, in the factual context of
this matter, that the time taken to
investigate has become so extended that it constitutes an act
oppressive of the applicant’s
rights.
[21]
I am
accordingly satisfied that the applicant has discharged the onus
resting upon him in the first stage of the enquiry.
Consequently,
the
onus shifts to the respondent in the second stage of the enquiry in
the manner detailed above.
[22]
Unless the respondent is able to prove, on a balance of
probabilities, that the applicant
(who was in undisturbed possession
of the seized articles prior to their seizure) is not entitled to
their return, the application
must succeed. In this respect,
the respondent loses sight of where the onus lies. In answer to
the applicant’s
allegations regarding the possession of a valid
firearm licence and its subsequent seizure by members of the SAPS,
the respondent
goes no further than to deny the allegations, putting
the applicant to the proof thereof. It goes without saying that
this
is insufficient to discharge the onus with which the respondent
was burdened. Such allegations fell to be answered by the
officer responsible for the seizure in question. This was not
done. Moreover, the respondent took no steps to place
a copy of
the SAPS13 register before the court, from which a description of the
seized articles would have been apparent.
[23]
Accordingly,
the
respondent has failed to establish, on a balance of probabilities,
that the applicant may not lawfully possess the seized articles.
I must add that I, in any event, did not understand Ms Brauns who
appeared on behalf of the respondent to suggest otherwise.
To
the contrary, she correctly conceded the apparent evidential
difficulties faced by the respondent on the papers before court
and
did not challenge this aspect of the enquiry during argument.
[24]
That being
so, the applicant is entitled to the relief sought.
Amendment
to the Notice of Motion
[25]
Counsel
who appeared on behalf of the applicant applied (from the bar) to
amend
[17]
paragraph 1 of the
applicant’s Notice of Motion to include the return of the
applicant’s firearm licence and rifle
cartridges. The
application,
albeit
belatedly brought, was not opposed by the respondent nor was any
prejudice alleged on his behalf. I too am unable to discern
any
prejudice to the respondent, with the issues having been fully
canvassed on the papers by the applicant. The court has
a wide
discretion to grant amendments, with the primary object of allowing
an amendment being to do justice between the parties
by obtaining “
a
proper ventilation of the dispute between
”
them, as was highlighted by Caney J
Trans-Drankensberg
Bank Ltd (Under Judicial Management) v Combined Engineering (Pty) Ltd
and Another.
[18]
Why the amendment, in the present circumstances is necessary, is
self-evident. There can be no question as to the
bona
fides
of the applicant in seeking such an amendment. Accordingly, the
applicant’s application to amend succeeds.
[26]
The usual
approach to costs is that the successful litigant is entitled to his
costs as against the unsuccessful litigant.
I find no reason to
depart therefrom in this matter.
[27]
Accordingly, the following order is issued:
1.
The applicant’s notice of motion, dated
12 February 2020, is amended by the deletion of paragraph 1, in its
entirety, and
the substitution thereof with the following:
“
1.
The respondent is ordered to return to the applicant, the
applicant’s:
1.1
.303 calibre rifle;
1.2
firearm licence
issued to the applicant in terms of the
Firearms Control Act, 60 of
2000
; and
1.3
6 rifle cartridges
seized
from the applicant under CAS13/01/2015.
”
2.
The respondent is ordered to
return to the applicant, the applicant’s:
2.1
.303 calibre rifle;
2.2
firearm licence issued to
the applicant in terms of the
Firearms Control Act, 60 of 2000
; and
2.3
6 rifle cartridges
seized
from the applicant under CAS13/01/2015.
3.
The respondent is ordered to
pay the costs of the application.
I
BANDS
JUDGE
OF THE HIGH COURT
Date
heard:
29
February 2024
Date
of judgment:
27
March 2024
For
the applicant:
Ms.
Bacela
Instructed
by:
Bacela
Bukula & Associates
115
Cambridge Road King Williams Town
For
the respondent:
Adv.
Brauns
Instructed
by:
State
Attorney
East
London
c/o
Shared Legal Services
32
Alexandra Road
King
Williams Town
[1]
It
is further common cause that in addition to the rifle, 6 rifle
cartridges were seized.
[2]
Whilst
section 21 of the Act provides for the procedure to be followed for
the seizure of an article under a search warrant, section
22 sets
out the circumstances in which an article may be seized without a
warrant. Section 22 of the Act provides as follows:
“
A
police official may without a search warrant search any person or
container or premises for the purpose of seizing any article
referred to in section 20-
(a)
if the person concerned consents to the search for and
the seizure of the article in question, or if the person who may
consent
to the search of the container or premises consents to such
search and the seizure of the article in question; or
(b)
if he on reasonable grounds believes:
(i)
that a search warrant will be issued to him under
paragraph (a) of section 21(1) if he applies for such warrant; and
(ii)
that the delay in obtaining such warrant would defeat
the object of the search.”
[3]
See
Ntoyakhe
v The Minister of Safety and Security and Others
1992 (2) SACR 349
(E) at p 354 where Erasmus J stated as follows:
“
In
the context of s 20, the word ‘seize’ (Afrikaans text:
‘op… beslag lê’) encompasses –
to my
mind – not only the act of taking possession of an article,
but also the subsequent detention thereof. The
word is capable
of such construction, and the right conferred by the use thereof in
chap 2 would be rendered worthless were it
limited to the initial
act of seizing, as the subsequent detention thereof would then fall
outside the ambit of s 20
.”
[4]
Choonara
v Minister of Law and Order
1992
(1) SACR 239 (W).
[5]
This
is in no manner intended as a restrictive interpretation of section
20, which is clear and unambiguous in its construction.
[6]
1991
(2) SACR 153 (D).
[7]
2020 (1) SACR 339
(SCA).
[8]
National
Director of Public Prosecutions v Five Star Import and Export (Pty)
Ltd
2018
(2) SACR 513 (WCC).
[9]
Notyakhe
at
p 355.
[10]
(2339/2016)
[2017] ZANCHC 45 (21 April 2017).
[11]
Whilst
the applicant cites the date 9 January 2015 in his founding
affidavit, it was common cause between the parties that the
incident
in question took place on 10 January 2015.
[12]
Minister
of Land Affairs and Agriculture and Others v D & F Wevell Trust
and Others
2008
(2) SA 184 (SCA).
[13]
Plascon-Evans
Paints v Van Riebeeck Paints
1984 (3) 623 (AD).
[14]
Kalil
N.O. and Others v Mangaung Metropolitan Municipality and Others
2014
(5) SA 123 (SCA).
The
respondent offers no explanation for this failure.
[15]
Kalil
N.O. and Others v Mangaung Metropolitan Municipality and Others
(supra).
[16]
Which broadly speaking, under certain conditions, prohibits
the
publication of a statement or information concerning pending or
ongoing court proceedings.
[17]
In
accordance with Uniform Rule 28.
[18]
1967
(3) SA 632
(D).