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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2025 -033306
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE 11 Apr. 25
SIGNATURE
In the matter between:
ABRAM FEMANE MABOKO Applicant
and
THE MINISTER OF POLICE First R espondent
THE NATIONAL COMMISSIONER SOUTH
AFRICAN POLICE SERVICES Second Respondent
THE STATION COMMANDER SAPS
MIDRAND POLICE STATION Third Respondent
Delivered: This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to the parties/their legal
representatives by e -mail and by uploading it to the electronic file of this matter on
Caselines . The date and fo r hand -down is deemed to be 11 April 2025 .
Summary: Urgent application seeking the return of a motor vehicle seized in
terms of the provisions of the Criminal Procedure Act, 51 of 1977. The common
law remedy of spoliatus ante omnia restituendus est (mandament van spolie )
is not available in an insta nce where the movable property was dispossessed
for a lawful means. In such an instance, the authorised functionary does not
resort to self -help but simply exerc ises available statutory power . The South
African Police Services (SAPS) is not staking ownership or possessory rights
over the seized property. Usually, mandament van spolie serves as a
preliminary order for restoration until the entitlement to possession of the
property is determined . Held: (1) The app lication is heard as one of urgency in
terms of Rule 6(12) of the Uniform Rules of Court. Held: (2) The application is
dismissed. Held : (3) The applicant is to pay the costs of the application on a
party and party scale , taxable or to be settled on scale A .
JUDGMENT
MOSHOANA, J
Introduction
[1] In terms of section 205(3) of the Constitution, the objects of the police service
are to prevent, combat and investigate crime, to maintain public order, to
protect and secure the inhabitants of the Republic of South Africa and their
property, and to uphold and enforce the law. Section 20(a) of the Criminal
Procedure Act (CPA)1, authorises the State to seize anything which is
concerned in or is on reasonable grounds believed to be concerned in the
commission or suspected commission of an offence, whether within the
Republic or elsewhere. Further , section 20(b) authorises seizure of anything
which may afford evidence of the commission or suspected commission of an
offence, whether within the Republic or elsewhere. Section 31(1)(a) of the CPA
expressly provides that if no criminal proceedings are instituted in connection
1 Act 51 of 1977 as amended.
with any article retained in the police custody, or if it appears that such article is
not required at the trial for the 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
that person may lawfully possess such article, or, if such person may not
lawfully possess such article, to the person who may lawfully possess it.
[2] The above statutory provisions , sets the necessary tone for the present urgent
application before Court . It is common cause that members of the South African
Police Services have , on 24 January 2025 , seized a motor vehicle owned by
the applicant before Court. The present application is concerned with the return
of the said seized motor vehicle . The applicant contends that since he is the
owner of the seized motor vehicle he is entitled to its restoration to his
undisturbed lawful possession. The present app lication is opposed by all the
cited respondents.
Pertinent factual matrix
[3] To a large degree, facts pertinent to the present application are common cause
and are not seriously disputed. The salient facts are that Mr Abram Femane
Maboko (Mr Maboko), is the lawful owner of a motor vehicle to wit, Toyota
Corolla Prestige bearing registration letters and numbers, J[...] (Toyota). It is
common cause that on 19 November 2024, a crime of robbery was committed
at Midrand. It is alleged that the Toyota was involved or used during the
commission of the robbery offence.
[4] The members of the SAPS are currently busy with the investigation s of the
committed robbery. In the course of the investigation s, the SAPS circulated the
Toyota to all the police stations for the purpose of seizing it, since it was
allegedly involved in the investigated crime of robbery. As part of the
investigations, on 10 December 2024, the police made contact with Mr Maboko
and informed him that the Toyota was involved in the commission of a robbery
crime. In retort, he informed the police that the Toyot a was used as an ehailing
taxi. He , on his pleaded version, furnished the police with the name of the driver
of the Toyota for the purposes of the ehailing taxi services.
[5] On 8 January 2025 , the police visited the ho me of Mr Maboko and informed
him that the driver is required for investigations purposes . He, on his pleaded
version, provided the police with the full details of the driver. On the version of
the deponent on behalf of the respondents, the motive of wanting to see Mr
Maboko was to investigate and confirm the identity and or the whereabouts of
the Toyota regarding the robbery that took place. According to the deponent,
the investigations were conducted in order to ensure that the involved suspects
are apprehended and that the Toyota is impounded , as it was linked to the
alleged crime. It is disputed by the deponent that Mr Maboko provided the
police with the identity number and the residential address of the driver. Those
details were provided to the police by Clientelle insurance on 27 January 2025,
after Mr Maboko failed to honour the arrangement to bring the driver in order to
meet with the police on Sunday 12 January 2025. Since all attempts to secure
the seizure of the Toyota failed, on 13 January 2025, the Toyota was circulated.
[6] It is common cause that Mr Maboko was informed that the Toyota will be
circulated and significantly, for what purpose . As a result of the circulation , on
24 January 2025, the Toyota was spotted at the Brooklyn Mall, there and then
driven or under the control of the son of Mr Maboko. Before the Toyota could be
seized, Mr Maboko was, on the prompt of his son, who reported that the police
were wanting to seize the Toyota, also at the Brooklyn Mall. On his own
version, he was told that the Toyota was heading to the Johannesburg pound
as opposed to the Pretoria one. There is no evidence that Mr Maboko offered
any resis tance to this impounding. I interpose to state that such conduct is not
perturbing since Mr Maboko knew all along , since circulation , that the Toyota is
alleged to have been involved in the reported robbery and it may be s eized.
[7] The deponent of the respondents confirmed that the matter was as at the
hearing of the present application still under investigation s. The police docket
has been taken to the Control Prosecutor of the Alexander Magistrate Court on
18 February 2025 for a prosecut ion decision. He also testified that the Toyota is
kept under police custody as an instrument allegedly used in the offence. This
version is not seriously disputed by Mr Maboko. Instead, he raised tangential
issues that the Control Prosecutor did not impound the Toyota and his alleged
non joinder is nonsensical.
[8] After the vehicle was seized, Mr Maboko enlisted the services of Clientelle legal
services. For a number of days in February 2025, Mr Maboko interacted with
the employees of Clientelle. Ultimately , Clientelle refused to afford him legal
cover since he fell into arrears with his premiums. Around February or March
2025, Mr Maboko launched the present application, which was to be heard on
25 March 2025. On 25 March 2025, for reasons that are not apparent
anywhere, the application was removed from the roll with an order for the
respondents to pay the wasted costs. On 26 March 2025, Mr Maboko and his
attorneys of record caused the matter to be enrolled on the urgent motion roll of
8 April 2025.
Evaluation
[9] Mr Maboko contends that his, is a spoliation claim. He contends that on 24
January 2025, he was in peaceful and undisturbed possession of the Toyota.
He further contends that since the police failed to exhibit a warrant, they did not
have a lawful cause to seize the Toyota. He was , thus, unlawfully deprived of
possession of the Toyota. Sadly , for Mr Maboko, this is not a spoliation claim.
The police did not impound the Toyota because they stake ownership over it.
Typical ly, in a spoliation proper, the spoliator usually stakes ownership rights
over the property so dispossessed . In Rikhotso v Northcliff Ceramics (Pty) Ltd
and others (Rikhotso )2, the learned Nugent J expressed the following felicitous
statement of the law regard ing spoliation. He said:
“The remedy afforded by the mandament van spolie expressed in the
maxim spoliatus ante omnia restituendus est, is generally granted
where one party to a dispute concerning possession of property seizes
the property pursuant to what he believes to be his own entitlement
thereto. In such a case a court will summarily order return of the
property irrespective of either party’s entitlement to possession and will
2 1997 (1) SA 526 (W).
not entertain argument relating to their respective rights until this has
been done. The principle underlying the remedy is that entitlement to
possession must be resolved by the courts, and not by a resort to self -
help.
By its nature then a spoliation order will usually operate as no more
than a preliminary order for restoration of the status quo until the
entitlement to possession of the property is determined. The
assumption underlying the order is that the property exists and may be
awarded in due course to the party who establishes an entitlement
thereto.”
[10] I might add, the remedy is suitable in situations where two parties are staking a
legal right to possess a thing for use or enjoyment purposes. In the present
matter, the respondents are not staking any right over the possession , usage
and enjoyment of the Toyota. The respondents are not presenting a possess ory
right which requires resolution by a Court of law. The respondents are not
involved in self -help by taking the law into their own hands. As outlined at the
dawn of this judgment, the respondents are statutorily empowered to seize the
Toyota. Mr Maboko does not dispute the allegation that the Toyota is linked to
the crime of robbery. He clearly cannot dispute that , since the vehicle is with his
consent and permission used by someone else as an ehailing taxi. I pause to
remar k in passing that the conduct of Mr Maboko as alleged by the deponent
with regard to the police investigations and his cooperation therewith leaves
much to be desired. For an example, he informed the police that the Toyota
was with the ehailing driver, only to be encountered at the Brooklyn Mal l in the
control of his son, who on his pleaded version , took control of the Toyota with
his consent. Mr Maboko chose motion proceedings , as such the versions of the
respondents cannot be regarded as being far -fetched and ought to be
accepted.
[11] As far back as December 2024, Maboko knew that an allegation is made that
the Toyota was involved as an instrument of crime. He knew that the Toyota
was circulated for the purposes of being impounded. On the day of the seizure,
he was told in no uncertain terms that the Toyota is taken to Johannesburg
impound. Section 30(c) of the CPA explicitly states that a seized article shall be
given a distinctive identification mark (generally known as SAP69) and return it
in police custody. Mr Maboko does not dispute the averment that the Toyota is
in the police custody for reasons that it is alleged to be an instrument of crime.
Therefore, there is a lawful basis for the respondents to have taken possession
and or seized the Toyota. This Court , does not hesitate to empha tically state
that such a possession taking was not predicated on any ownership or
possessory rights tussle . It was , for the purposes of carrying out the
constitutional obligations (investigations of crime) as outlined above.
[12] To the extent that Mr Maboko alleges that since no warrant was exhibited for
the seizure , the veritable question becomes that of the legality or otherwise of
the seizure exercise . In effect, Mr Maboko by so alleging , contends that the
respondents exercised a statutory power unlawfully. In terms of the principle of
legality, a functionary may not exercise the powers that it does not have.
Should that be the case, the aggrieved must engage the judicial review powers
of a Court of law. Instituting a spoliation claim, in an instance where the
exercise of statutory power was involved , is an inappropriate cause of action.
The statutory requirements for a seizure warrant are expressed in sections 21
and 22 of the CPA. Section 22 particularly expres ses the circumstanc es in
which article may be seized without a search warrant.
[13] Even if this Court were to assume that on 24 January 2025, the police required
a warrant before the Toyota could be seized, such would simply imply that the
police exercised their powers in section 20 in an unlawful manner. The
available remedy for Mr Maboko is a judicial review. On the conspectus of the
evidence before this Court, it cannot be gainsaid that (a) on 19 November
2024, a crime of robbery was reported; (b) it is believed that the Toyota was
involved or is suspected to be involved in the commissi on of the reported
robbery; and (c) the Toyota may afford evidence of the commission of the
reported robbery. In view of the above evidence , the law as expressed in
section 20 of the CPA , authorises the State to seize the Toyota. Just to buttress
the point, section 25 of the Constitution does permit deprivation of ownership
rights through application of the law of general application. The CPA is such
law.
[14] Regard being had to the provisions of section s 31 and 32, the Toyota may be
returned to Mr Maboko if no criminal proceedings are instituted or if instituted ,
the Toyota is not required at the trial for the purposes of evidence or order of
Court. Mr Maboko alleges that whilst in the police custody, the Toyota is
exposed to the risk of damage. This averment is unnecessary in a claim for
spoliation . Counsel for the applicant, rightly , conceded to this proposition .
However, should the Toyota be damaged, Mr Mabok o has a remedy in law.
Further, Mr Maboko avers that he used the Toyota for business purposes and
he loses income of approximately R10 000.00 a month in the absence of it.
Again, this averment is of no moment in a spoliation claim . Similarly , counsel for
the applicant dexterously concede d to this proposition . However, Mr Maboko is
equally not bereft of a remedy in law. In both these instances, Mr Maboko can
institute an action for patrimonial loss es.
Conclusions
[15] In summary, the application deserved to be heard as one of urgency. There is
no case for spoliation claim made by Mr Maboko. If ever he contends, as he
did, that a seizure without a warrant is an unlawful exercise of powers
bestowed in section 20 of the CPA, his remedy lies in a judicial review as
opposed to a spoliation claim . In a spoliation claim proper , an exercise of
statutory powers like the one in section 20, is not invo lved, since there is no
possessory rights at stake. The actions of the respondent s are prima facie
lawful with regard to the seizure of the Toyota. The respondents are not staking
any ownership or possessory rights. The return of the Toyota, in the present
circumstances, is governed by the provisions of section s 30, 31 and 32 of the
CPA. On application of the doctrine of separation of powers, this Court has no
jurisdiction al powers to usurp the powers approbated by the law to another
functionary. Any claims of patrimonial nature have no relevance to a spoliation
claim. Accordingly, Mr M aboko has not been spoliated within the contemplation
of the common law maxim. For all the above stated reasons, the present
application is bound to fail with an appropriate order as to costs. There is no
reason why the usual practice of costs following the results should not apply in
this instance.
[16] On account of all the above reasons, I make the following order :
Order
1. The application is heard as one of urgency in terms of Rule 6(12)
of the Uniform Rules of Court .
2. The application is dismissed.
3. The applicant must pay the costs of this application on a party
and party scale to be taxed or settled at scale A .
GN MOSHOANA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES:
For the Applicant : Ms B Mathate
Instructed by: K. P. Seabi and Associates , Pretoria
For the Respondents: Mr D.A Maswanganyi
Instructed by: State Attorneys, Pretoria
Date of the hearing: 08 April 2025
Date of judgment : 11 April 2025