Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
[WESTERN CAPE DIVISION, CAPE TOWN]
Case No: 13412/24
In the matter between:
FSA TRANSPORT (PTY) LTD Applicant
And
THE STATION COMMANDER
CAPE TOWN CENTRAL VEHICLE
CRIME INVESTIGATION UNIT
SOUTH AFRICAN POLICE SERVICES First Respondent
THE MINISTER OF POLICE Second Respondent
Judgment: 26 September 2024
____________________________________________________________
Le Grange, ADJP:
[1] In this matter the Applicant seeks an enforcement order, on an urgent basis, in
terms of section 18 of the Superior Courts A ct 10 of 20131, whereby the operation and
1 The relevant parts of Section 18 for purposes of this reads as follows:
‘Suspension of decision pending appeal
execution of the judgment an d order granted by the Court on 18 June 2024, not be
suspended pending the outcome of a petition by Second Respondent (“the Police”) to
the Supreme Court of Appeal, inclu ding the outcome of such appeal in the event such
leave being granted.
[2] Leave was also sought by the Applicant to file a further affidavit. The Police did
not object to the filing thereof, as the further affidavit simply showed that a delay was
caused in serving the petition on the Registrar of the Supreme Court of Appeal.
[3] It is now well established in our law that the granting of relief as envisage d in
s 18 (3) constitutes an extra ordinary deviation from the standard practice that a
judgment and its attendant order (s) are suspended pending an appeal. An Applicant is
therefore required, apart from the requirement of exceptional circumstances as
envisaged in s ections 18(1) and 18(3), to prove on a balance of probabilities that
he/she will suffer irreparable harm if the order is not made . Furthermore, the other
party will not suffer irreparable harm if the order is made. Moreover, a relevant
consideration in granting the exceptional relief is the prospects of success on appeal2.
[4] The factual matrix of the main application can be summarized as follows: The
Applicant is in the transport business and the owner of a 10 wheeler truck. On
12 January 2024 the truck was in a collision. In March 2024, the A pplicant caused the
(1) Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders
otherwise, the operation and execution of a decision which is the subject of an application for leave to
appeal or of an appeal, is suspended pending the decision of the application or appeal.
………
(3) A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to
the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer
irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if
the court so orders.
(4) If a court orders otherwise, as contemplated in subsection (1) –
(i) the court must immediately record its reasons for doing so;
(ii) the aggrieved party has an automatic right of appeal to the next highest court;
(iii) the court hearing such an appeal must deal with it as a matter of extreme urgency; and
(iv) such order will be automatically suspended, pending the outcome of such appeal.
(5) For the purposes of subsections (1) and (2), a decision becomes the subject of an application for
leave to appeal or of an appeal, as soon as an application for leave to appeal or a notice of appeal is
lodged with the registrar in terms of the rules.’
2 UFS v Afriforum 2018 (3) SA 428 SCA at paras 10-15.
truck to be re-sprayed and fitted it with a new engine and cab. According to the director
of the Applicant, in the process of restoring the truck, he foolishly requested the panel
beater to remove the Vin number plate of the truck as he was unaware it was a criminal
offence.3
[5] The truck in the meantime was sold to a logistics company which is the Second
Applicant. In May 2024, a representative of the Applicant was sent to the Police to
obtain a clearance certificate in respect of the new engine and to transfer the truck in
the name of its new owner. The Police then seized the truck on the following basis: (i)
that the engine and or chassis numbers have been tampered with in contravention of s
68(6)(a) of the Natio nal Road Traffic Act 93; (ii) there is a su spicion that the vehicle
was stolen and that charges of theft and possession of suspected stolen property will
be investigated and; (iii) the seizure was done in accordance with section 20, 21 and
22 of the Criminal Procedure Act, Act 51 of 1977 and will stay in the safekeeping of the
South African Police Service in terms of the Act.
[6] The Police ’s version of events is somewhat different. According to the police ,
the undercarriage or chassis rail of a truck must have the same unique stamped or VIN
number as the cab of a truck. The cab is where the driver of the truck sits. The Police
in this instance recorded in their pa pers that on 8 May 2024 the A pplicant attended
their premises or yard to obtain a police clearance certificate for the truck. When i t was
inspected the Vin number plate of the cab and chassis rail differed. According to the
Police, the Applicant’s representative explained that it was a new cab and they have a
purchase receipt for it. The truck was released and the A pplicant had to return with the
receipt to verify it was legitimately purchased.
3 S 68 (2) of the National Road Traffic Act, 93 of 1966 provides that “ No person shall - ( a) falsify or
counterfeit or, with intent to deceive, replace, alter, deface or mutilate or add anything to a registration
number or a registration mark or a similar number or mark issued by a competent au thority outside the
Republic” and
s 89 (1) provides that ‘Any person who contravenes or fails to comply with any provision of this Act or with
any direction, condition, demand, determination, requirement, term or request thereunder, shall be guilty
of an offence.’
[7] The A pplicant returned with the truck on 23 May 2024 for a fresh clearance
certificate. Instead of bringing a receipt to show the new cab was legitimately
purchased, the Applicant replaced the VIN number on the new cab by using the
number of the old cab, which according to the police is a crime.
[8] Due to the different versions as to how the Vin number plates appeared on the
cab, the Applicant was charged with a number of criminal charges. The police docket
was taken to the senior public prosecutor in Bellville who declined to prosecute the
Applicant for perjury and instructed that the truck be returned to the Applicant.
[9] In the process of releasing the truck , a senior official of the police intervened and
refused to release the truck . According to the senior police official , the Applicant
committed a serious crime that needs further investigation.
[10] Aggrieved by what the Applicant perceived as an unlawful seizure of the truck, it
approached this court on an urgent basis seeking a rule nisi, calling on the Police to
show cause why the truck should not be returned. Paragraphs 2.2 to 3 of the rule nisi
were styled as follows:
“2.2 Declaring the First Respondent’s continued possession of the Truck
invalid and unconstitutional.
2.3 Directing the First Respondent to issue a South African Police Clearance
certificate in respect of the Truck to the First Applicant.
2.4 That the First Respondent is interdicted and restrained from, inter alia:
2.4.1 Destroying, compacting, shredding and or causing damage to the
Truck.
3. That the relief set out in paragraphs 2.4 and 2.4.1 (“the interim relief”) shall
operate as an interim interdict with immediate effect, pending the final
determination of this application.”
[11] On 18 June 2024, this Court granted an order , inter alia , ordering the Police to
immediately release the truck and to issue a clearance certific ate, despite the fact that
the A pplicants only sought interim relief pending the final determination of the
application. The Police immediately lodged an application for leave to appeal as they
were of the view that the order of this Court was final in effect, which the A pplicants
were not entitled to. More importantly , according to the Police, the immediate release of
the truck would be inconsistent with the National Road Regulations 4 which provides
that:
(i) It is illegal for the applicants to operate a motor vehicle without a
roadworthy certificate.5
(ii) If the VIN number has been tampered with, a roadworthy certificate may
not be issued without a police clearance certificate.6
(iii) For a police clearance certificate to be issued, the police must be satisfied
that:7 The veh icle is fitted with microdots; And, if necessary, refer the
matter to the South African Service Vehicle Identification Section. The
police then investigate if the truck is stolen or not.
[12] Leave to appeal was refused and t he Police thereafter petitioned the Supreme
Court of Appeal for leave to appeal and it is that petition that is currently pending.
[13] The question now is whether exceptional circumstances as envisage d in
4 GNR. 225 of 17 March 2000
5 Section 42 of the Act.
6 Regulation 141(3)(a).
7 Regulation 337B(4).
sections 18(1) and 18(3) exist to grant the exceptional relief and wha t the prospects of
success will be on appeal.
[14] Mr. Holland who appeared for the Applicant argued that the decision in
Ngqukumba v Minister of S afety & Security and O thers8 finds application in this
instance as the police acted unlawfully by seizing the truck that was in peaceful
possession of the Applicant without a search warrant . Furthermore, a proper case for a
spoliation order was advanced in the founding papers and the application for leave to
appeal by the Police was simply filed to harass the Applicant as no criminal charges are
pending against them.
[15] Mr. Anton Katzs, SC a ssisted by Mr. B Prinsloo contended that: firstly, the
Applicant failed to advance any facts to show the Police acted unlawfully when the truck
was seized in its founding papers. Secondly, the court erred in granting final relief when
the Applicants only sought interim relief and impermissibly stepped into the shoes of the
Police, by ordering that a clearance certificate b e issued without any evidence, or
submissions by counsel whether the prerequisites for such a clearance were satisfied.
And lastly, the Applicants failed to demonstrate on a balance of probabilities that they
will suffer irreparable harm if t he order for execution is not granted. For the former
proposition reliance was also placed on the Ngqukumba judgment.
[16] In that matter the facts were the following: On 10 February 2010 a suspect who
was under investigation by the P olice in connection with a stolen vehicle volunteered
unrelated information. The information was that he had previously been involved in the
theft of another vehicle. He told the police that this vehicle was at a certain taxi rank in
Mthatha. The P olice to ok him there. He pointed out the vehicle to them. The vehicle
belonged to the applicant. The Police instructed the applicant’s driver to take the vehicle
to a P olice station. There they discovered that its chassis number had been tampered
with and appeared to have been removed from ano ther vehicle and placed in the
applicant’s vehicle; there was no engine number as the original engine number had
8 2014 (5) SA 112 CC
been ground off; and the manufacturer’s tag plate had been removed from ano ther
vehicle and placed on the applicant’s vehicle. The Police retained the vehicle. During all
this the P olice were without a search and seizure warrant. The applicant subsequently
instituted proceedings in the High Court for the return of the vehicle. The cause of action
was the mandament van spolie . A remedy aimed at reversing unlawful deprivation of
possession, also known as a spoliation order.
[17] Both, the High Court and Supreme Court of appeal proceeded from the premise
that a tempered vehicle is no different from an article the possession of which would be
unlawful under all circumstances and that s 68 (6)(b) and 89(1) of the Traffic Act ousts
the spoliation remedy. The Constitutional Court clarified the position and held at para 13
that:
“It matters not that a government entity may be purporting to act under colour of
a law, statutory or otherwise. The real issue is whether it is properly acting within
the law. After all, the principle of legality requires of state organs always to act in
terms of the law. Surely then, it should make no difference that, in dispossessing
an individual of an object unlawfully, the police purported to act under colour of
the search and seizure powers contained in the Criminal Procedure Act. Non -
compliance with the provisions of the Criminal Procedure Act in seizing a
person’s goods is unlawful. This unlawfulness, plus the other requirement for a
spoliation order (namely, having been in possession immediately prior to being
despoiled) satisfy the requisites for the order. All that th e despoiled person need
prove is that—
(a) she was in possession of the object; and
(b) she was deprived of possession unlawfully
[18] To sum up. An individual can possess a tampered vehicle if there is lawful cause
for such possession and sections 68 (6)(b) and 89(1) of the Traffic Act do not oust the
spoliation remedy.
[19] In applying the above stated principles, the question now is whether exceptional
circumstances exist and what the prospects of success on appeal will be . Firstly, the
factual matrix in this instance, differ from that of Nqgukumba. In the latter, the Police
only appealed against the prohibition of possession of a tampered vehicle ‘without
lawful cause’9 and not against the declaratory order by the court that the seizure was
unlawful.
[20] In this instance th e real issue is not the possession of a tampered vehicle without
lawful cause but whether the Police acted unlawfully when the truck was seized . That
issue is very much alive between the parties in the pending petition, unlike in
Nqgukuma.
[21] On a conspectus of all facts in this matte r, I am not persuaded that the A pplicant
has shown exceptional circumstances that warrants the granting of the relief sought
pending the outcome of the petition. In any event, C ounsel for the Police placed on
record in the event the petition fails then the vehicle will immediately be returned to the
Applicant. Furthermore, the issue of granting final relief when only a rule nisi was sought
is also a relevant point to be considered on petition.
[22] In any event, even if I am wrong , an order in favour of the Applicant will be of little
comfort as the Police will be entitled in terms of s 18 (4) to an automatic appeal to a full
court and such order pending the outcome of that appeal will automatically be
suspended.
[23] For all these stated reasons, it follows the Applicant’s application cannot succeed.
[24] In the result the following order is made:
9 S 68 (6)(b) of the Traffic Act.
The application is dismissed. With regard to costs. Since there is a pending
petition, I am of the view that costs should stand over for later determination.
_____________________
LE GRANGE, ADJP