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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: 25568 /2024
In the matter between:
BONKE MAKALALA Applicant
And
UNIT COMMANDER, BELLVILLE VEHICLE CRIME
INVESTIGATION UNIT First Respondent
MINISTER OF P OLICE Second Respondent
Heard: 20 December 2024
Delivered: Electronically on 1 3 January 2025
__________________________________________________________________
JUDGMENT
__________________________________________________________________
LEKHULENI J
Introduction
[1] This is an urgent application in which the applicant seeks an order directing
the first and second respondents (“the respondents”) to release and return the
following vehicles to the applicant:
Toyota Quantum with Registration Number 0[...]1 .
Toyota Quantum with Registration Number 0[...]2 ; and
Toyota Quantum with Registration Number 0[...]3 (“the impounded vehicles”).
[2] The applicant also seek s an order that in the event the respondents fail to
release and return the vehicle s, the applicant is given leave to approach this court on
the same papers, duly suppleme nted, if necessary , to seek compliance with the
order.
The Applicant’s Case
[3] The applicant has been actively involved in the transport industry since 2008.
He is currently incarcerated at Brandvlei Maximum Correctional Services Facility,
Worcester, for various serious crimes, including Murder, Attempted Murder, and
various counts o f Possession of an unlicensed firearm and Ammunition. He is the
lawful owner of the impounded vehicles, which are currently in the custody of the
police.
[4] The applicant states that he was informed by his drivers (who filed
confirmatory affidavits) that on 17 October 2024, three of his Toyota Quantums were
seized and impounded by members of the South African Police Services ("SAPS") .
The vehicles were subsequently transported to the vehicle impound centre situated
in Stikland. According to the applicant, no reasons for the impoundment of these
vehicles have been provided to him to date.
[5] The applicant states that on 17 October 2024, one of his Toyota Quantum
bearing registration number 0[...]3 , which was being driven by his taxi driver, Mr
Wade Lombard, was stopped by members of SAPS while travelling from Fish Hoek
to Masiphumelele. The officers requested the driver to pull over. An unknown
member of SAPS appr oached the vehicle, reached inside and removed the keys
from the ignition. Mr Lombard was then advised that the vehicle would be impounded
and retained at Stikland. As a result, his passengers were forced to exit the vehicle
as it was being seized with imm ediate effect. No explanation for the seizure of the
vehicle was provided.
[6] Similarly, Mr Mqingi, another taxi driver for the applicant, was also pulled over
that same afternoon at approximately 15h00 by law enforcement officials while
driving the appl icant’s vehicle bearing registration number 0[...]1 . An unknown male
official approached the vehicle and removed the keys from the ignition. Mr Mqingi
was informed that his vehicle was being impounded as his "boss", referring to the
applicant, was appearing in court the following day. The passengers were similarly
requested to exit the vehicle, and Mr Mqingi was informed that the vehicle would be
taken to Stikland. Again, no explanation was given for the impoundment of the said
vehicle.
[7] The applicant’s third vehicle, which was seized by members of law
enforcement on 17 October 2024, was a Toyota Quantum with registration number
0[...]4 , which was dr iven by Pitso Tlali. Mr Tlali was driving that morning from
Masiphumelele to Fish Hoek when he was stopped by an unknown traffic official,
who requested him to pull over. The law enforcement official requested Mr Tlali and
his passengers to exit the vehicl e, whereafter, an inspection was conducted on the
vehicle. Upon the inspection being concluded, Mr Tlali was requested by the official
to furnish his driver's license.
[8] According to the applicant, Mr Tlali pulled out a colleague's driver's license
and handed it to the law enforcement official. As soon as the error was brought to Mr
Tlali’s attention, Mr Tlali immediately handed over his international driver's license,
which was issued in Lesotho . Mr Tlali was subsequently arrested and detained at
Fish Hoek Police Station for allegedly committing fraud when he presented a driver's
license that did not belong to him. He was thereafter released on bail and warned to
appear in Simonstown court on 20 January 2025. The vehicle driven by Mr Tlali was
thereafte r impounded, and Mr Tlali was informed that it would be kept at Stikland
along with the other vehicles.
[9] Following the impoundment of the vehicles, the applicant sought the
assistance of his legal representative, who subsequently addressed a formal letter to
the senior officials of the SAPS. In this correspondence, the representative urged
SAPS to prioriti se the investigation of the applicant's vehicle and to conclude the
inquiry within seven days of receipt of the letter. Failure to do so wou ld compel the
applicant to seek appropriate legal relief from the court. In response to this
correspondence, Captain Burger, the Unit Commander, Oudtshoorn V ehicle Crime
Investigation Unit, stated that the vehicles were being inspected and investigated as
it was suspected that these vehicles were used in the commission of a crime or
suspected commission of a crime.
[10] In addition, Captain Burger formally requested that the legal representatives
of the applicant instruct the applicant to present all vehi cles registered in his name,
including those registered under the applicant's company, to the Vehicle Crime
Investigation Unit located in Belleville Stikland. This submission was scheduled for
29 October 2024 and 31 October 2024, during the hours of 09 h00 to 15 h00, for the
purposes of inspection and investigation. Captain Burger further stated that the
vehicles would not be detained unnecessarily and that they would be dealt with
accordingly if irregularities were found in the vehicles presented.
[11] In response to Captain Burger's correspondence, the legal representative of
the applicant issued a letter on 29 October 2024. Within this communication, it was
asserted that the allegations against the applicant, as detailed in Captain Burger's
corresponde nce, presupposed the existence of reported criminal cases concerning
the utili sation of the applicant's vehicle. Therefore, the applicant's legal
representative requested the case numbers of these dockets. In addition, the
applicant's legal representative contended that there was no legal basis for the
applicant to present the entire fleet of his vehicles for inspection as that would be
extremely prejudicial to the applicant. The applicant's legal representative inquired
about the outcome of the police insp ection and investigation of the impounded
vehicles. He stated that t he prolonged retention of these vehicles at Stikland was
resulting in excessive income loss for the applicant.
[12] Subsequent thereto, there were several exchanges of correspondence
betw een the parties. Notwithstanding, the impounded vehicles were not returned to
the applicant. Eventually, on 27 November 2024, the applicant brought this
application for an order directing the respondents to release and return his vehicle s
to him. The applicant stated that the failure of the police to release h is vehicle s has
had a detrimental impact on his income as he cannot generate an income as he did
before. Additionally, the applicant stated that the drivers of these vehicles are
similarly in a financially detrimental position as they cannot earn an income. The
applicant prayed for an order that the vehicles be released from the police and be
returned to him.
The Respondents’ Case
[13] The Respondents assert ed that the seizure of the three Toyota Quantums has
its genesis in an investigation into the attacks on long -distance buses in the Eastern
and Western Cape. The investigation into these attacks became a police project
known as the Project Tsitsikamma. The respondents stated that this pro ject consists
of three phases: serious and violent crimes, extortions and offences relating to
vehicles. During Project Tsitsikamma, the applicant was identified as a suspect and
arrested on 10 December 2023 on various charges related to Project Tsitsikamm a
under Nyanga CAS 600/08/2018, Nyanga CAS 329/12/2019, Nyanga CAS
178/10/2020, Mfuleni CAS 104/02/2020, Ocean View CAS 95/07/2023 and
Boschkop CAS 77/12/2023.
[14] The respondents further stated that the seizure of these vehicles, which are
the subject matter of this application, was in terms of section 20 of the Criminal
Procedure Act 51 of 1977 ("the CPA") as amended. The respondents further
asserted that t hese veh icles were seized on suspicion that they have been involved
in the offences of money laundering in contravention of Section 4(b)(i) and (ii) of the
Prevention of Organized Crime Act 121 of 1998 by the applicant, forgery and uttering
with regards to engine numbers, fraud and tampering with a vehicle in contravention
of section 68(6)(a) of the National Road Traffic Act 93 of 1996 (“the NRTA ”) as
amended.
[15] The respondents stated further that the investigation regarding one of the
suspected offences is at an extremely sensitive stage, and divulging further
information about such an offence may lead those implicated in it to flee from justice.
The suspicion about money laundering is based on the suspicion that these vehicles
are part of the proceeds of the criminal activities for which the applicant was
arrested.
[16] The respondents asserted that the operating permit for the Toyota Quantum
with registration number 0[...]1 is suspected to have been fraudulently obtained. The
basis for this suspicion is because the applicant was in prison at the time of issuing
the permit on 1 September 2024 . According to th e respondents, a permit can only be
issued on application by the applicant in person. The respondents contended that
the chassis numbers of the three Toyota Quantums with registration numbers 0[...]3 ,
0[...]1 and 0[...]2 impounded by the police were suspected of having been tampered
with, which gave rise to suspicion of forgery and uttering. These three Toyota
Quantum were taken to the SAP 13 Store of SAPS at Belleville VSS to investigate
their roadworthiness and for forensic investigation of these vehicles' engines, chassis
and bodies.
[17] The Toyota Quantum bearing Registration Number : 0[...]3 was inspected and
investigated by Captain Shale Mofokeng, a Senior Forensic and Metallurgical
Analyst at the Forensic Science Laboratory of SAPS. Captain Mofokeng completed a
statement in terms of section 212 of the CPA and concluded that the vehi cle's true
identity had been tampered with based on his findings during his investigation.
Captain Mofokeng also conducted a similar investigation on the Toyota Quantum
with registration 0[...]4 and came to a similar conclusion that the vehicle's true
identity had been tampered with, based on his findings during his examination.
[18] Warrant Phillip ine Seshoeni, a Forensic Mechanical and Metallurgical Analyst
at the Forensic Science Laboratory of SAPS, conducted a similar investigation on
the Toyota quant um with registration 0[...]1 and concluded that the chassis tag of the
vehicle has been tampered with and that the floor panel containing the chassis tag
and firewall of the vehicle has been paired with the roof of another vehicle.
[19] On the other hand, Warrant Officer Siegfried Van Greunen, who is stationed at
the Vehicle Crime Investigating Unit in Belleville with the necessary training and
experience in vehicle theft investigation, after conducting an investigation on the
engines of the three Toyota Quantums, found that the engines of the Toyota
Quantums with registration 0[...]3 and 0[...]4 had been tampered with.
[20] The respondents further stated that Captain Burger, an investigatin g officer at
the Vehicle Crime Investigating Un it, conducted a further investigation on the bodies
of the three Toyota Quantums and concluded that the floor panels containing the
chassis tags of these vehicles had been paired with the outer shells of other
vehicles, which also effectively changes the i dentity of these vehicles. According to
Captain Burger, these structural changes to the vehicles compromised their integrity,
which made them dangerous to use as the shell w ill come loose from the floor
panels, resulting in serious injury or death. The res pondents prayed for the dismissal
of the applicant's application with costs.
Principal Submissions by the parties
[21] Ms Janssen, the applicant's Counsel, submitted that the respondents seized
the vehicles on 17 October 2024 and only investigated the vehicle properly on 30
October 2024. Counsel asserted that the police seized the vehicles, and after the
fact, conducted investigations, and now the y allege that there was tampering on the
chassis of the vehicles. Ms Janssen argued that the respondents admitted that the
vehicles belong to the applicant and that the respondents are in possession of the
said vehicles. According to Ms Janssen, the onus is on the respondent to show
justification for their continued possession of the applicant's three vehicles.
[22] Ms Janssen further contended that there is no allegation that the vehicle s or
the parts of the applicant's vehicles we re stolen. Counsel argued that the
respondents did not establish a prima facie case entitling them to retain the vehicles.
Ms Janssen submitted that the respondents have not shown why they are entitled to
keep or retain the applicant’s vehicles . According to Ms Janssen, the respondents
have other remedies than to impound the applicant’s vehicles . Counsel implored the
court to gr ant an order for the release of the applicants’ vehicle s as prayed for in the
notice of motion.
[23] On the other hand, Mr Van Wyk, the respondent's Counsel, contended that
the three vehicles were initially impounded on suspicion of money laundering and
suspicion of tampering. The suspicion about tampering with the vehicles could only
be confirmed by experts in the field on 30 October 2024, as evidenced in their
statements in terms of section 21 2 of the CPA. Mr Van Wyk submitted that upon
examination of t he vehicles by the relevant experts, conclusive proof of t ampering of
the chassis and the vehicle identities were confirmed. Counsel argued further that
tampering in terms of section 68 of the NRTA is unlawful. Counsel further submitted
that once the features mentioned in section 68 are found in the impounded vehicle,
such vehicle cannot be returned to the applicants.
[24] Furthermore, Counsel argued that the investigation concerning the three
vehicles is ongoing and is at a critical stage. The in vestigations regarding these
vehicles are forgery and uttering, which relates to the chassis and engine numbers of
the vehicle. The investigation also relates to the roadworthiness of the vehicles and
how the initial roadworthy certificates were obtained. It was the Counsel's
submission that these investigations are at a sensitive stage, and the respondents
cannot divulge full information as it could alert suspects who will soon be arrested
pursuant to the investigations. This would thwart the investigation . Counsel implored
the court to dismiss the applicant's application.
Issues in dispute
[25] The primary issue to be determined in this case is whether the three vehicles
owned by the applicant, which are currently in the possession of the respondents,
should be returned to the applicant.
Relevant Legal Principles and Discussion
[26] It is common cause that the applicant is the owner of the three vehicles. It is
also common cause that the respondents are currently in possession of these
vehicles . The applicant seeks an order for the vehicles to be returned to him so that
he can use the m to generate income to support his family and his children. The
applicant brought this application based on rei vindicatio. In the case of rei vindicatio,
the applicant bears the onus to prove ownership, that the item claimed is in
existence and identifia ble, and that the respondent is in possession.1 Once these
requirements have been met, the o nus shifts to the respondent s to show justification
for their continued possession of the item concerned .
[27] The respondents contend that their continued possession of the applicant’s
vehicles is justified. In addition, the respondent asserted that they are investigating
the circumstances under which the roadworthy certificates of these vehicles were
issued. The respondents contended that their investigation into these vehicles is
underway and at a sensitive stage . Importantly , the respondent s relied on section
68(6)(b) of the NRTA in their continued retention of the applicant’s vehicle. They
asserted that there is evidence of tempering in the three vehicles .
[28] For the sake of completeness , section 68(6)(b) of the National Road Traffic
Act 93 of 199 6 provides that :
“(6) No person shall –
(a) with intent to deceive, falsify, replace, alter, deface, mutilate, add anything
to or remove anything from or in any other way tamper with the engine or
chassis number of a motor vehicle; or
(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. ”
1 ASP Elite Protection Services CC v Minister of Police and Others (6489 /2020) [2020] ZAWCHC 142
(2 November 2020) at para 54 .
[29] The purpose of section 68 is to prevent people, including owners of vehicles,
from being in possession of and driving vehicles that have been tampered with in the
ways detailed in the section.2 The section makes possession that might otherwise be
lawful unlawful.3 Section 68(6)(b) does not permit the possession and consequently
return by th e police of vehicles that have been tampered with , even to their owners .4
[30] In Basie Motors BK t/a Boulevard Motors v Minister of Safety and Security ,5
the court stated that possession of a vehicle with an engine or chassis number that
has been tampered with is forbidden. The NRTA does not confer authority on anyone
to allow it. Section 89(3) of the same Act provides that a contravention of section
68(6) a mounts to a criminal offence, rendering the accused liable on conviction to a
fine or to imprisonment for a period not exceeding three years.
[31] As discussed above, the applicant presented evidence from their experts
explaining that the true identity of the three vehicles of the applicant had been
tampered with, which gave rise to suspicion of forgery and uttering. Further
investigation by the expe rts of SAPS revealed that the floor panel containing the
chassis tag of the Toyota Quantum with registration Number 0[...]3 had been paired
with the outer shell of another vehicle. An examination of the Toyota Quantum
bearing registration number 0[...]4 revealed that its front section containing the
stamped chassis number had been paired with the back dome of another vehicle.
Furthermore, the floor panel containing the chassis tag has been paired with the
outer shell of another vehicle. The true identity of this vehicle was also tampered
with.
[32] An examination of the third Quantum bearing registration number 0[...]1
revealed that the chassis tag had been tampered with . The floor panel containing the
chassis tag and firewall of the vehicle had been paired with a foreign roof of another
vehicle. Significantly, the expert noted that there was no repaired accident damage
to the vehicle . In other words, the vehicle was not involved in an accident. Upon
2 Marvanic Development (Pty) Ltd and Another v Minister of Safety and Security and Another 2007 (3)
SA 159 (SCA) at para 7 .
3 Marvani c Development (Pty) Ltd and Another v Minister of Safety and Security and Another (supra)
at para 8.
4 Pekule v Minister of Safety and Security 2011 (2) SACR 358 at para 29.
5 (SCA Case No. 135/2005 ; [2006] ZASCA 35(28 March 2006) at para 8 ).
further investigation of the Toyota Quantum engines with registration numbers 0[...]3
and 0[...]4 , SAPS experts discovered that the engines had been tampered with.
[33] It is apparent that the three Quantums belonging to the applicant, which were
seized and impounded by the police, have been tampered with . I must stress that
tampering, as envisaged in section 68(6) of the NRTA , is unlawful. I am mindful of
the applicant's reply ing affidavit that the Toyota Quantum bearing registration 0[...]3
was involved in an accident and that the other two vehicles were also involved in
accidents and were repaired by reputable panel beaters. However, according to the
police expert, the vehicle bearing 0[...]1 was never involved in an accident.
Notwithstanding, the chassis tag of this vehicle has been tampered with. The
respondent is not an expert in vehicle repairs, and I am of the view that the views
expressed by an expert from the police must prevail.
[34] As correctly pointed out by Mr Van Wyk, once the features mentioned in
section 68(6) of the NRTA are found in an impounded vehicle, such a vehicle cannot
be returned to the applicants. The police have seized these three vehicles and are
retaining them pursuant to section 68(6) of the NRTA . I believe that the police have a
valid justification for retaining these vehicles, as they have been subjected to various
forms of tampering. Tampering with a vehicle is prohibited in section 68(6)(b) of the
NRTA . A vehicle seized by the police cannot be returned to the persons from whom
they have been seized if any of the features referred to in section 68(6) of the NRTA
are present; doing so would defeat the provisions of the Act.
[35] In summation, pursuant t o the investigations conducted by the police , there
are features of tampering in the three vehicles impounded by the police. In these
circumstances, the police cannot lawfully release the vehicles to the applicant. An
order directing the return of the vehicles to the applicant would defeat the provisions
of the National Road Traffic Act.
[36] Notwithstanding, this does not mean that the applicant is not without a
remedy. Regulation 56 of the National Road Traffic Regulations 2000 provides the
means for a vehicle owner (or person otherwise entitled to possess the vehicle) to
obtain from the police new engine or chassis numbers where these have been
tampered with, and a police clearance will be issued to the registering authorities.
The regulation itself shows precisely what s ection 68(6) (b) means : until the
regulation has been complied with, possession by any person other than the police is
without lawful cause.6
[37] Given all these considerations, the applicant’s application must fail.
Order
[38] In the result, the following order is granted:
38.1 The applicant’s application is hereby dismissed.
38.2 Each party is ordered to pay its costs .
____________________________
LEKHULENI JD
JUDGE OF THE HIGH COURT
APPEARANCES
For the App licant : Adv Janssen
Instructed by: Lundi Maki Attorneys
For the Respondent s: Adv Van Wyk
Instructed by: The State Attorney
6 Marvanic Development (Pty) Ltd and Another v Minister of Safety and Security and Another (supra)
at para 11.