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2024
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[2024] ZAFSHC 361
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Mini Developments CC v Minister of Police and Another (A191/2023) [2024] ZAFSHC 361 (6 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable / Not
reportable
Case no: A191/2023
In
the matter between
MINI
DEVELOPMENTS CC
APPLICANT
and
MINISTER
OF POLICE
FIRST
RESPONDENT
THE
SOUTH AFRICAN POLICE SERVICE
SECOND
RESPONDENT
Neutral
citation:
Mini Developments CC v
Minister of Police and Another
Coram: Daniso J,
Greyling-Coetzer AJ et Nemavhidi AJ
Heard: 11 October 2024
Delivered:
6 November 2024
Summary:
Administrative decision –
Section 31
of the
Criminal Procedure Act 51 of 1977
– Issuing of SAP VIN in terms
of
Regulation 56(3)
of National Road Traffic Regulations, 2000.
ORDER
The appeal is dismissed
with costs.
JUDGMENT
Nemavhidi AJ (Daniso J
et
Greyling-Coetzer AJ concurring)
[1]
This is an appeal brought by the appellant
(Mini Developments) against the judgment by the court
a
quo
.
[2]
The second respondent seized two UBT
Freight Link Trailers (the trailers) belonging to the appellant, on
15 October 2019. The basis
for the seizure was that the Vehicle
Identification Number (VIN) of the trailers had been tampered with.
[3]
On the 26 February 2020, the second
respondent notified the appellant of the confiscation and forfeiture
of the trailers. They informed
the appellant that the South African
Police Service (SAPS) had grounds to believe that the trailers were
stolen and that it is
unknown who the legal owner is. Furthermore,
because of the tampering, the appellant did not have any lawful cause
to possess the
trailers, as contemplated in s 68 of the National Road
Traffic Act 93 of 1996 (the Traffic Act). However, there is no
criminal
action pending as the appellant lawfully purchased the
trailers.
[4]
In
July 2020 the appellant brought an application in the Welkom
Magistrate’s Court for return of the trailers. Pursuant to
the
respondents’ raising the issue of jurisdiction the application
was withdrawn. In October 2022, the appellant launched
the
application in the court
a
quo
,
primarily, to obtain a
mandamus
to compel SAPS to issue a SAP VIN number and clearance certificate
for the trailers in terms of Regulation 56(3) of the National
Road
Traffic Regulations, 2000.
[1]
The
regulation places a statutory duty on SAPS to issue, upon
the
appellant’s
demand, in his capacity as a title holder of the trailers, a new
chassis number and clearance certificate.
[5]
In dismissing
the appellant’s application the court
a
quo
found
in essence that:
(i)
section 68(6) of the Traffic Act precludes
the applicant from possession of the trailers in view of the
tampering with their VIN
numbers; and
(ii)
by virtue of the principle of subsidiarity,
the applicant may have used a wrong remedy in approaching the court.
The Application of the
Law
[6]
The declaration of forfeiture was made in
terms of s 31 of the Criminal Procedure Act 51 of 1977 (the CPA). The
section provides:
‘
Disposal
of article where no criminal proceedings are instituted or where it
is not required for criminal proceedings:
(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.
’
[7]
It clear that s 31 provides that the person from whom the article was
seized is entitled to a
decision as to whether the article will be
returned to him or her if it is not required for use in a criminal
trial. SAPS is required
to determine and make a decision as to
whether the person from whom the article was seized may lawfully
possess it, or if not,
whether any person may do so.
[2]
[8]
The operation of s 31 is not mechanical as it requires a positive
declaration to be
made by a functionary within SAPS.
[3]
The
conduct of the second respondent is of an administrative nature. The
SAPS’s decision to declare the trailers forfeited
to the State
and its refusal to issue the applicant with an SAP VIN number
constitutes an administrative action as envisaged and
defined in the
Promotion of Administrative Justice Act 3 of 2000 (PAJA) in that:
(i)
the decision was taken by SAPS, such being
an organ of State; and
(ii)
in
taking this decision, SAPS was exercising public power in terms of
the CPA.
[4]
[9]
Section 239 of the Constitution of the Republic defines ‘organ
of state’
to mean:
‘
(a)
any department of state or administration in the national, provincial
or local sphere of government; or
(b) any other functionary
or institution—
(i)
exercising a power or performing a function in terms of the
Constitution or a provincial constitution; or
(ii) exercising a public
power or performing a public function in terms of any legislation,
but does not include a court or a judicial
officer;’
[10]
The applicant, in its attempt to seek recourse under the common law
remedy of a declaratory order,
is, in these circumstances, precluded
from doing so by the application of the principle of subsidiarity.
Where PAJA applies, an
applicant for review is bound to rely on the
grounds listed in s 6 of PAJA and to seek the appropriate remedy
under s 8. Allowing
litigants to side-step PAJA where it applies
would seriously undermine the Act and its objectives.
[5]
The
Constitutional Court in
Minister
of Health v New Clicks
[6]
reaffirmed
the subsidiarity principle and said:
‘
PAJA
is the national legislation that was passed to give effect to the
rights contained in section 33. It was clearly intended to
be, and in
substance is, a codification of these rights. It was required to
cover the field and purports to do so. A litigant cannot
avoid the
provisions of PAJA by going behind it, and seeking to rely on section
33(1) of the Constitution or the common law. That
would defeat the
purpose of the Constitution in requiring the rights contained in
section 33 to be given effect by means of national
legislation.’
[7]
[11]
The court
a
quo
found that at the time when the trailers were seized by the
respondents, the appellants had possessed them without lawful cause.
The fact that the appellant purchased trailers from some other entity
does not constitute lawful cause within the contemplation
of s 68(6)
of the Traffic Act. Regulation 56 provides for the application of SAP
VIN numbers which regularizes possession of vehicle
VIN numbers –
of which those in question were tampered with. Ownership alone does
not constitute a lawful cause for purposes
of s 68(6)
(b)
of the Traffic Act.
[8]
[12]
As far as the appeal is concerned, the appellant ought to have
applied for a review of the second
respondent’s decision under
PAJA, had the appellant done so the outcome may have been different.
As such, the appeal has
to fail.
[13]
In the result, the following order is made:
The appeal is dismissed
with costs.
Nemavhidi
AJ
I
agree and it so ordered
Daniso
J
I
agree
Greyling-Coetzer
AJ
Appearances
For
the Appellant:
Adv
W.A Van Aswegen
Instructed
by:
Phatsoane
Henney INC
Bloemfontein
For
the Third to Fifth Respondents:
Adv
M.S Mazibuko
Instructed
by:
State
Attorney
Bloemfontein
[1]
As set out in
GG
20963 of 17 March 2000.
[2]
Armbruster
and Another v Minister of Finance
[2007] ZACC 17
;
2007 (6) SA 550
(CC) paras 45-46.
[3]
Minister
of Police v Khoeli
[2021] ZASCA 146
para 10-11.
[4]
See in this regard
Minister
of Home Affairs and Another v Public Protector of the Republic of
South Africa
[2018]
ZASCA 15
;
2018 (3) SA 380
SCA paras 30-36.
[5]
National
Energy Regulator of South Africa and Another v PG Group (Pty) Ltd
and Others
[2019] ZACC 28
;
2020 (1) SA 450
CC
para 112.
[6]
Minister
of Health and Another v New Clicks South Africa (Pty) Ltd and Others
[2005] ZACC 14; 2006 (2) SA 311 (CC).
[7]
Ibid paras 95-96.
[8]
Marvanic
Development (Pty) Ltd and Another v Minister of Safety and Security
and Another
[2006] ZASCA 18
;
2007 (3) SA 159
SCA. See also
Basie
Motors BK t/a Boulevard Motors v Minister of Safety and Security
[2006] ZASCA 35
; [2006] SCA 35 (RSA).