REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
CASE NO: A 123/2025
( l) REPORTABLE: ~/ NO
(2) OF INTEREST TO OTHER JUDGES: ~/NO
(3) REVISED: NO
DAlE \G\O~\~CQ(c SIGNATUR
In the matter between:
ANDISWA NOMFUNDO MT AKA Tl
And
THE MINISTER OF POLICE FOR RSA
STATION COMMANDER, BOSCHKOP POLICE STATION
Appellant
First
Respondent
Second
Respondent
Coram:
Heard on:
2
MOKOSE J, MUNZHELELE J AND KEKANA AJ
21 JANUARY 2026
This Judgment was handed down electronically and by circulation to the parties' legal
representatives by way of email and shall be uploaded on Caselines. The date for
hand down is deemed to be on 16 March 2026.
JUDGMENT
KEKANA AJ (MOKOSE J AND MUNZHELELE J CONCURRING)
Introduction and Background
[1] This is an appeal against the judgment handed down by Barn J on 1 October
2024 in which the Appellant's application for an order for the immediate return
of her motor vehicle, a VW Polo, which was allegedly unlawfully seized and
impounded by the Respondents was dismissed. Aggrieved by the decision of
the court a quo, the Appellant applied for leave to appeal against the judgment
of court a quo. This appeal is with leave of the court a quo. The Respondents
are opposing the appeal.
Respondent's application for lapsed appeal
[2] The Applicant (the Respondent in the main appeal) seeks the declaratory relief
that application for hearing date of the appeal dated 30 May 2025 by the
Appellant has lapsed in terms of Rule 47(9)(d) of the Uniform Rules of Court. The
Applicant submission can be summarised as follows:
2.1 that the Respondent has failed to file three copies with the Registrar of
this Court and two copies to the Applicant within 40 days after
3
acceptance by the Registrar of the application for the date of the hearing
in accordance with subrule ?(a) of Rule 47; and
2.2 non-compliance with clause 33.25 of the Revised Consolidated Practice
Directive 1 of 2024.
[3) The Respondent (the Appellant in the main appeal) contends that Rule 47(9)(d
does not create an automatic lapse, it requires the Court's intervention and the
exercise of discretion, having regard to all circumstances and the interest of
justice. The Respondent's contention can be summarised as follows:
3.1 that the appeal could not be filed within 40-day period that followed , due
the financial hardship and the high cost of transcription;
3.2 that the monthly income she generates is less far to cover her monthly
expenses, she had to source funds from family and friends to cover
costs, to the extent that she had to rely on an advance from her attorney
to pursue this appeal;
3.3 that immediately after payment was made on 30 October 2025 and
records received , same was filed on 7 November 2025; and
3.4 the delay was not deliberate , nor excessive and has been cured.
Condonation
[4] On 7 November 2025, the Appellant filed an application for condonation of the
late filing of the appeal. In the condonation application the Applicant (Appellant)
submits that the seizure and the continued detention of her vehicle was unlawful
and defective and, that the Respondent failed to demonstrate compliance with
section 22(b) of the Criminal Procedure Act 51 of 1977 (the CPA), it is for those
reasons that she has prospects of success in the appeal.
[5] The Respondent's opposition of the application for condonation is based on
same facts as contained in its application for lapsed appeal, I do not intend to
4
regurgitate those submissions here save to mention the issue of security not
tendered. Evidence before this Court is that security has now been tendered.
[6) It is trite that condonation cannot be for the mere asking. A party seeking
condonation must make out a case entitling it to the court's indulgence. It must
show sufficient cause. This requires a party to give a full explanation for the non
compliance with the rules or court's directions. Of great significance, the
explanation must be reasonable enough to excuse the default1. In a condonation
application, what is needed is an objective conspectus of all the facts. Thus, a
slight delay and a good explanation may help to compensate prospects which
are not strong.2
[7) The delay by the Applicant was short and this Court is satisfied that there has
been a satisfactory explanation by the Applicant for the delay. The court noted
that the Respondent failed to allege any particular prejudice. The standard for
considering an application for con donation is the interests of justice. What follows
now is the interests of justice which is regarded as the standard for considering
an application for condonation.3 Absent any prejudice shown on the part of the
Respondent and with security now being tendered, I am of the view that it will be
in the interests of justice for the condonation to be granted.
The main appeal
Submissions by the parties
[8) Appellant's submission can be summarised as follows:
8.1 that no adequate facts were placed before the court a quo that the police
had reasonable grounds to belief that the motor vehicle was an item
liable to be searched or seized.
1 Von Abo v President of the Republic of South Africa [2009] ZACC 15; 2009 (5) SA 345 (CC); 2009
(10) BCLR 1052 (CC) at para 20.
2 Melane v Sanlam Insurance Co Ltd 1962 (4) SA 531 (A).
3 Grootboom v National Prosecuting Authority and Another (CCT 08/13) [2013] ZACC 37 at para 22.
5
8.1.1 Lethuba, who is not an investigating officer, his affidavit was all
hearsay, relying mainly on what was in the docket and what Smith
and Mdlunya had to say.
8.1.2 Smith's evidence is that he looked at the police computer system
and observed that the motor vehicle was wanted.
8.1.3 Mdlunya, the investigating officer whose affidavit requires closer
scrutiny especially paras 2 & 3 thereof where he says, "upon
investigation two suspects were arrested whom they were alleged
driving a Polo Silver Grey ... the Polo was used as a subject matter
in the commission of an offence ".
8.1 .4 Mdlunya does not allege that he personally saw that the motor
vehicle was used in the commission of the offence, nor does he
state how and from where he obtained the information.
8.2 that the belief referred to in terms of section 20 must exist before the
police decide to act in terms of section 22.
8.3 that the court a quo had to look at the facts given by the police to see
whether objectively it can be said that the police had reasonable grounds
to belief that the vehicle was an item liable to be searched or seized.
(9] The Respondent's contentions are that:
9.1 Captain Smith proceeded further to verify the particulars of the record with
the investigating officer mentioned in the circulation system record and same
were confirmed by the investigating officer to be both true and correct.
9.2 the existence of pending criminal proceedings triggered an urgent need, on
the part of Captain Smith, to impound the said motor vehicle without a
warrant.
9.3 the appellant has in her heads of argument raised new issues, attacking the
admissibility of the evidence of which was not raise in both the Appellant's
founding papers, and the legal submissions made on her behalf during the
main proceedings.
6
9.4 that the seized motor is required as evidence for criminal proceedings. It is
only the criminal court that can order the return of the seized motor vehicle to
the Appellant.
Legal principle and analysis.
[1 O] Section 20 of the CPA states that:
"The State may, in accordance with the provisions of this Chapter, seize
anything (in this Chapter referred to as an article)-
(a) 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;
(b) which may afford evidence of the commission or suspected
commission of an offence, whether within the Republic or elsewhere; or
(c) which is intended to be used or is on reasonable grounds believed to
be intended to be used in the commission of an offence.
11
[11] Section 21(1) of the CPA states that:
"Subject to the provisions of sections 22, 24 and 25, an article referred
to in section 20 shall be seized only by virtue of a search warrant issued
(a) by a magistrate or justice, if it appears to such magistrate or justice
from information on oath that there are reasonable grounds for believing
that any such article is in the possession or under the control of or upon
any person or upon or at any premises within his area of jurisdiction ; or
(b) by a judge or judicia l officer presiding at criminal proceedings, if it
appears to such judge or judicial officer that any such article in the
possession or under the control of any person or upon or ac any premis es
is required in evidence at such proceedings ".
7
[12) Section 22 of the CPA states that:
"A police official may without a search warrant search any person or
container or premises for the purpose of seizing any article referred to in
section 20-
(a) if the person concerned consents to the search for and the seizure of
the article in question, or if the person who may consent to the search of
the container or premises consents to such search and the seizure of
the article in question; or
(b) if he on reasonable grounds believes-
(i) that a search warrant will be issued to him under paragraph (a)
of section 21 (1) if he applies for such warrant; and
(ii) that the delay in obtaining such warrant would defeat the object
of the search ".
[13) For a warrantless seizure to be lawful in terms of section 22(b), the police
officer's belief must be based on objective, verifiable facts available at the time
of the seizure. The crisp issue before this Court is whether the court a quo erred
in finding that the impounding and seizure of the appellant's motor vehicle is
lawful. The subservient aspect for determination is whether based on the
evidence before this Court, there existed facts upon which it can be said that
the Appellant's vehicle was an item liable to be searched and seized in terms
of section 22(b).
[14] The Appellant's argument that Smith's reliance on the circulation system is not
enough to create the reasonable belief required in terms of section 22(b) cannot
be sustained. The SAPS national circulation system is a tool that helps police
officers across the country to share information about wanted persons,
vehicles, or items connected to crimes. A listing confirms the item is officially
wanted in connection with a crime, directly linking it to seizable articles in terms
of section 20.
8
[15] The circulation system has been used by law enforcement officers when
conducting random searches at roadblocks, relying on it to seize vehicles listed
thereon without a warrant. The listing of a vehicle on the circulation system is
evidence enough for purposes of police officers to reasonably belief that it is
wanted, linked or an item used in the commission of an offence. This is not a
hunch but reliable information available at the time. It cannot be expected for
law enforcement officers at such roadblocks to have additional facts or
information for them to be said to have established the required belief in terms
of section 22(b). The standard of reasonableness required in terms of section
22(b) should not be raised to unduly thwart effective policing.
[16) The "reasonableness" of the belief is judged by the court based on the
information available to the officer at the time of the seizure. If the information
relied upon by the law enforcement officer is that which is captured on the
circulation system, such information will be considered objective, grounded in
facts that would convince a reasonable person in the officer's position. Unless
and until the authenticity of the information or the veracity of the circulation
system is successfully challenged, a police officer relying on the circulation
system will be justified and regarded as having facts and credible information
sufficient to establish reasonable grounds for a search in terms of section 22(b).
[17] Smith's reliance on the circulation system remains acceptable unless and until
the authenticity or the veracity of the system is successfully challenged. The
veracity of the SAPS circulation system has so far not been disputed by the
Appellant.
[18) Again, the argument by the Appellant that Mdlunya does not allege that he
personally saw that the motor vehicle was used in the commission of the
offence, nor does he state how and from where he obtained the information is
offence, nor does he state how and from where he obtained the information is
found wanting. It cannot be correct that police officers must personally see that
the vehicle was used in the commission of the offence to satisfy the reasonable
belief in terms of section 22(b). Nor will it be expected for police officers to
disclose their informants at this stage. To the extent that they are able to rely
on the information so provided will at this stage be enough to satisfy the
9
reasonableness in terms of section 22(b). Afterall, there is a pending trial where
all the evidence will be tested.
[19] It is at a criminal trial where the evidence collected will be tested with
conclusions on the relevance and admissibility thereof will be pronounced. At
any stage, before trial, all that is needed is a reasonable suspicion, which
includes a reasonable suspicion that the said vehicle is an item used in the
commission of the offence in terms of section 22(b). It would not be proper to
assert that the police must provide adequate facts or more facts beyond the
description given. The description given of the colour, make, model and
registration number are sufficient especially where the Appellant does not deny
that the said vehicle was used in the commission of an offence.
[20] In terms of section 22(b)(ii), the officer must prove that they believed, on
reasonable grounds, that any delay caused by the process of applying for a
warrant would defeat the object of the search. In the case of a motor vehicle,
the inherent ease and speed with which it can be moved often provides the
reasonable basis for this belief. If the police have reasonable grounds to believe
the vehicle is linked to a crime, the fact that it is a mobile object can itself justify
the conclusion that a delay in obtaining a warrant would defeat the object of the
search.4
[21 J The contention by the Respondent that only the criminal court can order the
return of the seized motor vehicle to the Appellant is incorrect. The High Court
in South Africa has the authority to rule on a mandament van spofie application
for the return of a motor vehicle, even when the vehicle was seized by the police
in terms of section 22(b). This is a fundamental part of its role in upholding the
rule of law and preventing self-help. The High Court's role is to adjudicate on
the lawfulness of the police actions. A seizure in terms of section 22(b) is only
the lawfulness of the police actions. A seizure in terms of section 22(b) is only
a valid defence if it meets the criteria of that section. If it does not, the High
Court will use its spoliation powers to restore the status quo ante and return the
veh icle to the person from whom it was taken.5
4 S v Murphy and Others 2024 (1) SACR 138 (WCC).
5 Ngqukumba v Minister of Safety and Security and Others (CCT 87/13) [2014] ZACC 14.
10
Conclusion
[22] The critical question for this Court is whether the seizure was lawful in terms of
section 22(b). Before this Court there existed evidence and facts upon which I
am of the view that the police had a reasonable belief that the vehicle was an
item used in the commission of an offence. The circulation system and the
information that the investigating officer sourced from its informants is enough
for the police officers to seize the vehicle in terms of section 22(b). It therefore
follows that the requirements of section 22(b) of the CPA were met, and that the
seizure was accordingly lawful. The court a quo was correct in its conclusion that
the vehicle was lawfully seized.
Order
[23] In the premises, the following order is made:
1. The appeal is accordingly dismissed with costs.
KEKANA AJ
Judge of the High Court
MUNZHELELE J
Judge of the High Court