IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case Number: 8583/24
In the matter between:
NOMSITHELO GLADYS MVULA Applicant
and
CITY OF CAPE TOWN First Respondent
CITY OF CAPE TOWN TRAFFIC SERVICES Second Respondent
DEPARTMENT OF TRANSPORT AND PUBLIC Third Respondent
WORKS, WESTERN CAPE
JUDGMENT
(Application for leave to appeal)
Magardie AJ
1. The applicant appli es for leave to appeal against the judgment and order
delivered by this court on 16 August 2024.1
2. The principal judgment concerned an application for a mandatory interdict and
certain alternative relief sought by the applicant for the return of a motor vehicle
which had been impounded by the City on 12 January 2023 after it was found
to be operating as a taxi without an operating permit. The applicant alleged that
the vehicle was an ass et in the deceased estate of her late husband and had
been unlawfully released by the first respondent (“the City”) on 23 February
2023 to the Deputy Sheriff, Cape Town East (“the Sheriff”).
3. The City opposed the application. According to the City, the vehicle had been
identified as the property of SA Taxi Development Finance Pty (Ltd) and had
been lawfully released to the Sheriff on the strength of a court order and
warrant for delivery of goods obtained in this court under case no. 8850/2020.
4. The detailed background facts are set out in the principal judgment and will not
be rehearsed again. I shall however adopt the same nomenclature regarding
the vehicles as in the principal judgment. I will refer to the vehicle which the City
states was released to the Sheriff as “the SADTF vehicle” and the vehicle
claimed by the applicant as “the Mvula vehicle.”
5. The court concluded that contrary to the applicant’s assertions, the Mvula
vehicle and the SADTF vehicle were one and the same vehicle. The vehicle in
question had been identified through microdot technology as bearing the same
chassis/VIN number as that recorded on the warrant and order issued in favour
of the SADTF. The judgment held that the vehicle h ad therefore been lawfully
released from the City’s impoundment facility on the strength of a duly issued
court order and warrant for delivery of goods obtained by the SADTF. It is these
findings which form the main subject of this application for leave to appeal. The
applicant contends that the court erred and misdirected itself in a number of
1 Mvula v City of Cape Town and Others (8583/24) [2024] ZAWCHC 221 (16 August 2024).
respects in concluding that the Mvula vehicle and the SADTF vehicle w ere the
same vehicle.
6. In the course of oral argument, Mr . Lingani, who appeared for the applicant,
sought to advance a further ground of appeal not foreshadowed in the
application for leave to appeal . This ground was said to be the City’s failure to
observe procedural fairness prior to releasing the vehicle from impoundment.
The absence of such procedural fairness, so the argument went, rendered the
City’s release of the vehicle unlawful and invalid. I will briefly consider this
contention after evaluating the main grounds set out in the application for leave
to appeal.
7. As a preliminary observation, it is worth restating the trite principle that motion
proceedings, unless they relate to interim relief, are directed at the resolution of
legal issu es based on common cause facts. Allied to this is the equally trite
principle that where final relief is sought on motion, as was in this case, the
applicant is bound to accept the respondent’s version of the facts unless those
allegations are so far -fetched and untenable that the court would be justified in
rejecting them merely on the papers. The application of these principles to the
facts of the present case was not disputed.
8. On this score, there is one central and undisputed fact that was determinat ive
of the main application and is as equally determinative of the fate of th is
application for leave to appeal. It is this: the evidence of Mr. Theo Marais, a risk
mitigation officer employed by the SADTF, was that he had inspected the
vehicle at the City’s impoundment facility and ascertained that the vehicle’s
microdots bore the same chassis/VIN number as th ose of the SADTF vehicle
as recorded on the court order and warrant issued to the SADTF. Once applied
to a vehic le, microdots cannot be changed or re placed and become an
immutable identifier of the vehicle, in effect its unique DNA fingerprint. None of
this was disputed by the applicant in her replying affidavit.
9. As pointed out in the principal judgment, o nce it is accepted that the vehicle
which the City released to the Sheriff on 23 February 2023 was fitted with
microdots identifying it as having the same chassis/VIN number as the SADTF
vehicle, the applicant’s case was confronted by several insuperable difficulties.
10. Foremost among these was the applicant’s failure to explain how it came about
that the vehicle in question was bearing microdots for a different VIN/chassis
number to th e VIN/chassis number which she claimed belonged to the Mvula
vehicle. There were two further difficulties for the case advanced by the
applicant. The first was that it was clear from the evidence that the vehicle in
question, while bearing immutable microdots reflecting the VIN/chassis number
of the SADTF vehicle, was fitted with a licence plate which the applicant, on her
own version, stated to be that of the Mvula vehicle. Secondly, the vehicle was
bearing a licence disc on its front windscreen recording the registration and
VIN/chassis number for the vehicle claim ed by the applicant as the Mvula
vehicle. This again was at odds with the microdots on the vehicle, which
recorded an entirely different VIN/chassis number. These inconsistencies
required an explanation from the applicant. None of any substance was
forthcoming. The City’s evidence relating to the microdots, licence plate and
licence disc on the vehicle inspected by Mr Marais was undisputed and
essentially common cause.
11. It is contended in the first ground of appeal that the court overlooked “the fact”
that the vehicle claimed by the applicant did not have a microdot and that
consequently, the City’s “entire story” with reference to the microdot verification
should have been rejected. The contention is erroneous. The applicant’s
affidavits contain no factual averment that the Mvula vehicle did not have
microdots. An attempt was made belatedly in reply to contend that the Mvula
vehicle was a 2011 model and hence was not subject to the post 2012
legislative requirement that all new vehicles should be fitted with microdots.
12. Mr. Marais’ undisputed evidence was that he identified the vehicle in question
as the SADTF vehicle through its microdots, which as stated earlier are a motor
vehicle’s unique DNA fingerprint. Engine numbers, licence plates and licence
discs on a vehicle can easily be changed or replaced. Microdots cannot. This is
precisely why microdot technology was adopted as mandatory statutory
requirement for vehicles under the terms of Regulation 56 of the National Road
Traffic Regulations, 2000 (as amended ). No sustainable basis was advanced
by the applicant to justify Mr. Marais’s evidence be ing rejected on the papers.
This ground of appeal lacks merit.
13. The applicant in its second ground of appeal conten ds that the court failed to
appreciate that the court order and warrant for delivery in respect of the SADTF
vehicle, identified a vehicle with a different year model, engine number and
VIN/chassis number to th e vehicle which the applicant claimed as the M vula
vehicle. This reasoning by the applicant is circular. It begins by assuming the
correctness of the conclusion which the applicant seeks to establish.
14. Confronted with the evidence of Mr. Marais that the vehicle released to the
Sheriff was coated with microdots recording the chassis/VIN number of the
SADTF vehicle, it is perhaps understandable why the applicant was then
ineluctably driven to contend that the vehicle identified by Mr. Marais, was not
the same vehic le as th at which she claims to be the Mvul a vehicle. This
contention however and the ground of appeal on which it is based, flies in the
face of the undisputed evidence of Mr. Marais . The evidence of Mr. Marais was
that he identified only one vehicle as th e SADTF vehicle. The microdots on that
vehicle recorded the same chassis/VIN number as those stipulated in the court
order and warrant which authorized the release of the SADTF vehicle to the
Sheriff.
15. The applicant contends in a further ground of appeal that in the absence of
evidence of tampering with the engine number and/or chassis/VIN number of
the vehicle claimed by the applicant, the court erred in finding that Mvula
vehicle and the SADTF vehicle were the same vehicles. I do not see how this
contention, which was in any event not pleaded by the applicant, detracts from
the undisputed evidence that the microdots on the vehicle claimed by the
applicant as the Mvula vehicle, record the chassis/VIN number of a vehicle
owned by the SADTF not the ap plicant’s late husband. The applicant is on the
horns of a dilemma. On the one hand, the applicant contends that the SADTF
vehicle and the Mvula vehicle are not the same vehicle, i.e. they are two
different vehicles. Yet on the other hand, she does not dis pute or address the
fact that the licence plates and licence registration disc for the vehicle she
claims to have been owned by her late husband , are found affixed to a vehicle
whose microdots conclusively identify it as being owned by SADTF.
16. It is not o pen to the applicant to plead mutually inconsistent facts. I can find no
sustainable basis to conclude that there is a reasonable prospect of another
court rejecting this court’s factual conclusion that the overwhelming evidence
was that the SADTF vehicle and the vehicle claimed by the applicant to be the
Mvula vehicle, were the same vehicles.
17. The applicant contends in its fifth ground of appeal that the court erred in
finding that the applicant did not dispute the City’s allegation that the applicant’s
late husband purchased the vehicle from Mr. Nqenqa. It is clear from the
evidence that the City in its correspondence to the applicant’s attorneys ,
expressly advised the applicant that the vehicle had been released on the basis
of a warrant obt ained against Mr. Nqenqa, the previous owner of the vehicle,
from whom the applicant’s late husband had allegedly purchased the vehicle.
The applicant did not address this allegation in further correspondence, nor did
she deal with it in her affidavits. The allegation required an answer. I agree with
Ms. Titus, who appeared on behalf of the City, that the applicant could have
easily set out in her papers, how and from whom her late husband acquired the
vehicle. This ground of appeal has no merit.
18. The final string in the applicant’s bow relates to what was alleged to be a failure
by the City to observe procedural fairness prior to releasing the motor vehicle to
the Sheriff on 23 February 2023. No factual basis was laid for this contention in
the applicant’s affidavits. The extent of a decision-maker’s duty to act fairly and
observe procedural fairness cannot be decided in a factual and evidentiary
vacuum. This is because the standard and content of procedural fairness is a
fact specific enquiry and differs fr om case to case. The applicant has not
established a factual basis on the affidavits for her alleged entitlement to
procedural fairness. It is not permissible for the applicant to attempt to do so
through oral submissions on a ground of appeal which has no t even been
pleaded in her application for leave to appeal.
19. Section 17(1)(a) of the Superior Courts Act 10 of 2013 (“the Act”) provides that
leave to appeal may only be granted if an appeal would have a reasonable
prospect of success or if there are some other compelling reasons why the
appeal should be heard, including conflicting judgments on the matter under
consideration.
20. This applicant does not suggest that there are compelling reasons why her
appeal should be heard as contemplated by sectio n 17(1)(a)(ii) of the Act. The
only question then is whether the applicant has persuaded this court that there
are reasonable prospects of success on appeal. It is in this regard well
established that the test for leave to appeal postulates a reasonable or realistic
chance of success on appeal . A mere possibility of success or an arguable
case on appeal does not suffice.
21. The applicant failed to establish a sustainable factual or legal basis for the relief
sought in the main application. I am not satisfied that there are reasonable
prospects of it being held otherwise on appeal.
22. The application for leave to appeal is dismissed with costs.
S G MAGARDIE
Acting Judge of the High Court
Western Cape Division
Appearances:
For the applicant: Mr. K Lingani
Instructed by: Lingani & Partners
For the second and third respondents: Adv Z Titus
Instructed by: Diale Mogashoa Attorneys
Date of hearing: 5 December 2024
Date of judgment (revised): 11 December 2024 (electronically)