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IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, MAKHANDA
Case no. 2685/2025
In the matter between:
ERIC THEMBALETHU JOKA Applicant
and
STATION COMMANDER,
VEHICLE IDENTIFICATION UNIT, KOMANI First respondent
MINISTER OF POLICE Second respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
LAING J
[1] This is an urgent application for a rule nisi, calling upon the respondents to
show cause why they should not return a 2018 Mercedes -Benz minibus. The
applicant seeks the immediate implementation of an interim interdict to that effect,
pending the return date.
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[2] In his founding affidavit, the applicant alleged that h e was the owner and
driver of the motor vehicle, which he used to transport school children between Lady
Frere and Komani. On 23 May 2025, police officers confiscated the vehicle,
impounding it at the Komani Vehicle Crime Investigation Unit (VCIU). The off icers
informed the applicant that the vehicle had been stolen. The applicant said that he
did not object; he had legally purchased the vehicle and knew that the police would
confirm this after completing their investigation.
[3] Subsequently, the applicant made several fruitless enquiries about the status
of the matter during the next 12 days. Eventually, on 5 June 2025, an officer told him
that the police had concluded their investigation; the vehicle had not been stolen,
and no case had been opened agains t him. The officer could not, however, release
the vehicle to the applicant because he had no authority to do so. At this, the
applicant pleaded with the officer, pointing out that he depended on the vehicle for
his income. This was to no avail.
[4] Consequently, the applicant instructed his attorneys to demand the release of
the vehicle by 9 June 2025. The respondents failed to do so, prompting the applicant
to institute urgent proceedings on 18 June 2025.
[5] In the respondents’ answering affidavit , W/O F abio Pitt alleged that he had
received a tip -off about a stolen vehicle that had been seen in Lady Frere. The
description matched the applicant’s vehicle, which W/O Pitt found while it was
undergoing repairs. The applicant told the officer that he was the owner. W/O Pitt
checked the registration number (C[...]) on the police database and discovered that it
belonged to another vehicle. The applicant explained that he had changed the
registration plates because he had not paid the purchase price in full a nd did not
wish the seller to find and repossess the vehicle. He had placed the correct
wish the seller to find and repossess the vehicle. He had placed the correct
registration plates inside a storage compartment underneath a passenger seat. At
this, W/O Pitt checked the police database again and found that the second
registration number (C[...]2) was associated with a police investigation.
[6] The officer said to the applicant that he was under a duty to confiscate the
vehicle in terms of section 20, read with section 22, of the Criminal Procedure Act 51
of 1977 (‘CPA’). The appl icant cooperated and drove the vehicle to Komani ,
accompanied by the police. At the VCIU, the police confirmed that a vehicle with the
same registration number (C[...]2), as well as the same vehicle identification number
(VIN), had been reported as stolen. W/O Pitt attached a copy of a police case docket
to his affidavit.
[7] Importantly, the investigating officer in that regard, S gt Michael Pietersen,
confirmed that the vehicle was registered as the property of Mona Tree Finance and
that a case of theft had been opened against the applicant. Sgt Pietersen had,
moreover, applied successfully for a warrant of arrest and had listed the vehicle on
the police database as having been stolen.
[8] In his replying affidavit, the applicant averred that he had concl uded a so -
called lease-to-sale agreement with Mona Tree Finance. This was never terminated.
The applicant was adamant that he was entitled to possession of the vehicle, as
demonstrated by a certificate of registration attached to his papers. He had been in
lawful possession of the vehicle at the time of its confiscation.
[9] Dealing, firstly, with the question of urgency, it cannot be said that this was
self-created. It was, overall, undisputed that the applicant made several unsuccessful
attempts to secure the release of the vehicle. He cannot be criticized for having done
so before initiating these proceedings. It was common cause (or at least undisputed)
that the applicant depended on the vehicle as a major source of income, and that
families relied on him for the transportation of school children. The court is satisfied
that there was sufficient urgency for the applicant to have departed from the usual
timeframes and related provisions contained in the rules.
[10] Turning, secondly, to the merits of the m atter, the applicant contended that he
was entitled to a spoliation order, alternatively an interim interdict. In Yeko v Qana,1
was entitled to a spoliation order, alternatively an interim interdict. In Yeko v Qana,1
the erstwhile Appellate Division confirmed that there are two chief requirements for a
spoliation order: (a) the applicant must have been in possession of the property; and
1 1973 (4) SA 735 (A).
(b) the respondent must have deprived him or her thereof forcibly or wrongfully and
against his or her consent.2
[11] In Ngqukumba v Minister of Safety and Security and Others ,3 the
Constitutional Court , per Madlanga J, emphasised that it did not matter that a
government entity purported to act ‘under colour of a law’; the real issue was
whether it was properly acting within the law. 4 The possession of a tampered -with
vehicle would be unlawful only if it were established that it there was no lawful cause
for such possession. Such a conclusion c ould only be reached, however, after an
enquiry into the facts surrounding possession. The merits of possession, said the
court, were irrelevant to spolia tion proceedings; the despoiler must restore
possession before all else. The restoration of possession could even be made to a
person who was eventually shown to be a thief.5
[12] In this division, the court in Kwatsha v Minister of Police6 dealt with a situation
where the police had confiscated the applicant’s goats on the suspicion that they had
been stolen. The court held that the applicant’s failure to produce a stock card could
not, on its own, establish a reasonable ground for the belief that the st ock was
stolen. When the case was heard, no -one had been arrested; there was also no
evidence to the effect that the case was being investigated. The court was satisfied
that the applicant was entitled to the restoration of possession.7
[13] Returning to the present matter, i t was common cause that the applicant had
been in possession of the vehicle. He contended that the confiscation was unlawful
because the police officers had failed to inform him of the authority upon which they
acted, no c riminal investigations had been in progress against him, and his rights
had been violated in general. The difficulty that faces the applicant, however, is his
failure to have convincingly refuted W/O Pitt’s allegation , based on a tip -off and the
failure to have convincingly refuted W/O Pitt’s allegation , based on a tip -off and the
records kept on the police database, that the first registration number belonged to a
different vehicle altogether and that the second registration number linked the
2 At 739.
3 2014 (5) SA 112 (CC).
4 At paragraph [13].
5 At paragraphs [15] and [21].
6 2023 JDR 4096 (ECM).
7 At paragraphs [30] and [33].
applicant’s vehicle to a police investigation. He also failed to deal with Sgt
Pietersen’s allegation that a criminal case had been opened against him and that he
was the subject of a warrant of arrest. To all of this, the applicant merely put up a
bald denial and repeated the allegation that he had been in lawful possession.
[14] The respondents relied on section 20, read with section 22, of the CPA to
justify the officers’ actions. To that effect, the provisions in question stipulate that the
state may seize anything which is, inter alia, concerned in or on reasonable grounds
believed to be concerned in the commission or suspected commission of an offence.
In the present matter, the information available to W/O Pitt at the time clearly
provided the basis for reasonable grounds to believe that the vehicle was concerned
in the suspected commission of thef t. The facts are not the same as those in either
Ngqukumba or Kwatsha. It cannot be said that the applicant in the present matter
successfully demonstrated that he was wrongfully deprived of possession. He is not,
in the circumstances, entitled to a spoliation order.
[15] The court must also consider the alternative basis relied upon by the applicant
for the relief claimed. To obtain an interim interdict, the applicant was required to
have demonstrated that, inter alia, he had a prima facie right to possession of the
vehicle. To that effect, he asserted that he was the owner . This was moderated to
some extent in reply, where he seemed not to assert ownership so much as to
reiterate that he was entitled to continued lawful possession.
[16] The weakness in the applicant’s case is that there is simply no evidence to
support his assertions. The certificate of registration, dated 1 April 2021, reflected
Mona Tree Finance as the title holder and the applicant as the owner. However, the
certificate contained in the police docket, dated 20 August 2024, reflected Mona Tree
certificate contained in the police docket, dated 20 August 2024, reflected Mona Tree
Finance as both the title holder and the owner. The applicant f ailed to deal with th e
discrepancy in reply. Crucially, the applicant could not rebut, persuasively, W/O Pitt’s
allegation that he had told the officer that he had concealed the correct registration
plates to avoid repossession by the seller when the purch ase price had not been
paid in full. He failed to detail the terms of the lease -to-sale agreement and why this
had transferred ownership in the vehicle or why, at the very least, he was entitled to
continued possession in terms thereof. No proof of payment was attached. The
applicant made no attempt, moreover, to refute Sgt Pietersen’s allegation that Mona
Tree Finance had pressed a charge of theft against him regarding the vehicle and
that a warrant of arrest had been issued. There is no indication whatsoe ver that his
possession of the vehicle was with the consent of the registered title holder and
owner.
[17] There is, in the end, no evidence to support the applicant’s claims. He has
failed to demonstrate that he has a prima facie right to possession of th e vehicle.
Consequently, there is no need to investigate whether the applicant has satisfied the
remaining requirements for interim relief.
[18] In the circumstances, the applicant cannot succeed. The respondents are
entitled to their costs, including those reserved at previous hearings.
[19] The following order is made:
(a) the application is dismissed; and
(b) the applicant is ordered to pay the respondents’ costs (scale B) , including
those reserved on 1 and 8 July 2025, on a party-and-party scale.
_________________________
JGA LAING
JUDGE OF THE HIGH COURT
APPEARANCES
For the applicant: Adv S Chetty
Briefed by: NEVILLE BORMAN & BOTHA
22 Hill Street
Makhanda
Tel: 046 622 7200
Email: charne@nbandb.co.za
Instructed by:
L. MAZALENI ATTORNEYS INC
Office no’s 2–4, 1st Floor, Status Centre Building
11 Robinson Road
Queenstown
Tel: 045 838 1221
Email: luzuko@mazaleniattorneys.co.za
For the respondents: Adv A Sidlai
Briefed by: SHENXANE INC
87 High Street
Makhanda
Instructed by:
STATE ATTORNEY
Gqeberha
Date heard: 10 July 2025.
Date delivered: 15 July 2025.