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IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)
CASE NO: 2026-066964
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
DATE: 15/04/2026
SIGNATURE: Naude-Odendaal J
In the matter between:
JOINA NHAMO 1st APPLICANT
JOINA ENTERPRISE 2nd APPLICANT
(Registration No: 2023/672946/07)
and
MINISTER OF POLICE 1st RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS 2nd RESPONDENT
JUDGMENT
NAUDE-ODENDAAL J:
INTRODUCTION:
[1] The 1st and 2nd Applicants brought an urgent application wherein they seek an
order directing the Respondents to return the Applicants' truck and trailers being a
Volvo Horse Truck with registration letters and numbers F[...] and two Tipper Trailers
with Registration letters and numbers B[...] and B[...].
[2] The background facts are briefly that on the 10 th of March 2026 at or near
Marula Mine within the jurisdictional area of Mecklenburg Police Station, Limpopo
Province, the members of the 1 st Respondent seized the Volvo Horse Truck with two
Tipper Trailers ("the truck and trailers").
[3] At the time of the seizure of the truck and trailers, the truck was driven by one
of the Applicants employees, Mr. Innocent Chipari ("the driver"). The truck was found
by Members of the 1 st Respondent loaded with earth minerals, chrome suspected to
have been stolen. The driver has since been arrested and detained in custody.
[4] On the 1 2th of March 2026, the 1 st Applicant went to Mecklenburg to give a
statement, where the 1 st Applicant met the Investigating Officer who was handling
the matter, Sergeant Ntsoane. The 1 st Applicant furthermore interrogated the driver
of the truck and trailers at the holding cells, who informed the 1 st Applicant that he
had colluded with one of the Applicants' other employees to make a quick buck in a
cash deal by going to load chrome without the Applicants' knowledge and
authorization.
[5] The 1 st Applicant submitted that he became a regular at the Mecklenburg
Police Station in an attempt to assist the police with the investigation and finalization
of the matter. He was assured by the Investigating Officer that his truck and trailers
would be returned to him, but despite the assurance, it was in fact not returned to
him.
[6] The 1 st Applicant submitted that on the 15 th of March 2026, he went to
Mecklenburg SAPS and found that the truck and trailers are getting vandalized, it is
Mecklenburg SAPS and found that the truck and trailers are getting vandalized, it is
missing batteries, and the police could not provide answers as to what happened to
the batteries. It was further submitted by the 1 st Applicant that in addition to the
trucks being vandalized, the Applicants are also suffering commercial harm as a
result of the seizure of the truck and trailers and if they are not released, the
company will not be able to meet its monthly commitments.
[7] The Respondents raised in their opposition a point in limine of lack of urgency.
In their opposition to the merits, they submitted that the Applicants' in their founding
affidavit sought to rely upon the doctrine of spoliation (mandament van spolie) as a
basis for the return of the impounded truck. The Respondents submitted that the
requirements for spoliation are not satisfied in the present matter, and that the
Applicants are not entitled to the relief sought.
[8] It was submitted by the Respondents that the doctrine of spoliation is a
remedy designed to protect possession against unlawful interference. The remedy is
available to a person who has been unlawfully deprived of possession of property.
The Respondents submitted that the Applicants cannot satisfy these requirements
because the truck was being used in connection with suspected criminal activity. The
police had reasonable grounds to believe that the vehicle was concerned in the
commission of an offence. It was submitted that under such circumstances, the
dispossession of the truck cannot be characterised as "unlawful" for the purposes of
the spoliation remedy.
[9] It was further submitted by the Respondents that the Applicants' possession
was tainted by the suspected criminal use of the vehicle. A person who uses
property for criminal purposes cannot claim that his dispossession is "unlawful"
within the meaning of the spoliation doctrine.
[10] The Respondents submitted that the impounding of the truck and trailers was
not unlawful. The seizure was authorized by Sections 22 -23 of the Criminal
Procedure Act, 51 of 1977 and was therefore lawful. The requirement of
unlawfulness for spoliation purposes requires that the deprivation to be without legal
authority. In the present matter, the police had clear statutory authority for their
authority. In the present matter, the police had clear statutory authority for their
actions. The impounding was therefore not unlawful in the sense required by the
spoliation doctrine.
[11] It was submitted by the Respondents that in the present matter, the
deprivation of possession was lawful, and the impounding was justified as it is being
authorized by the Criminal Procedure Act, 51 of 1977. It was further necessary to
preserve the evidence for the pending investigations. The policing area in which the
truck was seized is rife with illegal mining and transportation of illegal minerals, and
therefore there are on -going investigations to check whether the truck has not been
consistently linked to illegal mining and transportation of minerals. The deprivation
was therefore not without just cause.
[12] It is common cause that the legal basis of the Applicants' case is akin to a
remedy of mandament van spolie . To succeed the Applicants must show that it
enjoyed possession, which is peaceful and undisturbed, of the truck and trailers and
that the Respondents deprived it of such possession forcibly or wrongfully against its
consent. See Yeko v Qana 1973 (4) SA 735 (A) at 739.
[13] It is the Applicants' case that the search and seizure of the truck and trailers is
unlawful to the extent that the police violated their possessory rights under the
doctrine of mandament van spolie . A reference to the statement made by Mhlantla
JA in the case of Svetlov lvancmec Ivanov v North West Gambling Board and 5
Others (312/2011) [2012] ZA SCA (31 May 2012) will help in understanding the
Applicants' cause of action. The learned Judge of Appeal said at page 12, para [19]:
"The historic background and the general principles underlying the
mandament van spolie are well established. Spoliation is the wrongful
deprivation of another's right of possession. The aim of spoliation is to prevent
self-help. It seeks to prevent people from taking the law into their own hands.
An applicant upon proof of two requirements is entitled to a mandament van
spolie restoring the status quo ante. The first, is proof that the applicant was in
spolie restoring the status quo ante. The first, is proof that the applicant was in
possession of the spoliated thing. The cause for possession is irrelevant - that
is why possession by a thief is protected. The second, is the wrongful
deprivation of possession. The fact that possession is wrongful or illegal is
irrelevant as that would go to the merits of the dispute."
See also: Nino Bonino v De Lange 1906 TS 120 at 122.
[14] The duty to prove mandament van spolie falls on the Applicants. See:
Runsin Properties v Ferreira 1982 (1) SA 658 (SECLD) at 669 . It is not in dispute
that the Applicants, alternatively the Applicants' driver were in possession of the
truck and trailers, what is in issue are whether the Applicants were deprived of their
possession lawfully.
[15] The 1 st Respondent contends that the police actions are within the ambit of
Section 20 of the Criminal Procedure Act, 51 of 1977, read with Section 22 of the
Criminal Procedure Act. The main issue for consideration by this court is whether the
truck and trailers were seized by the 1 st Respondent in compliance with the Criminal
Procedure Act. It is common cause that the truck and trailers were seized without a
warrant and will the 1st Respondent have to satisfy the requirements of Section 22 of
the Criminal Procedure Act, which reads as follows:-
"Circumstances in which article may be seized without search warrant
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 (own emphasis)
(ii) that the delay in obtaining such warrant would defeat the object of the
search."
[16] In terms of Section 22 of the Criminal Procedure Act, the police are entitled to
seize property without a warrant. In the circumstances of this case, the truck and
trailers were caught red handed loaded and /or transporting stolen property and/or in
the act of theft within the mine premises. The Respondent's counsel argued that in
the act of theft within the mine premises. The Respondent's counsel argued that in
terms of the provisions, in those circumstances, the police were entitled to take
immediate action and seize the instrumentality used in the commission of crime.
---
[17] In Magoda v Minister of Safety and Security and Another; Mxhego v
Minister of Safety and Security and Another (380/12) [2013] ZAECMHC 5 (28
February 2013) the court held as follows at paragraph 15 and 16 thereof:-
"[15] The provisions of s 20 of the Act read:
"The State may, in accordance with the provisions of this Chapter, seize
anything (in this Chapter referred to as an article)-
1. 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;
2. which may afford evidence of the commission or suspected
commission of an offence, whether within the Republic or elsewhere; or
3. which is intended to be used or is on reasonable grounds believed to
be intended to be used in the commission of an offence."
In essence the law recognizes that balance should be maintained between
the rights of the police to conduct searches and seizures unhindered by the
cumbersome procedural requirements relating to obtaining a search warrant
and the rights of possession accorded to citizens under s 14(b) and (c) of the
Constitution of the Republic of South Africa, 1996. These subsections provide
that everyone has a right to privacy, which includes the right not to have their
property searched or their possessions seized. But the tension experienced in
the exercise of maintaining balance of these rights makes the task of the
courts a difficult one.
[16] The Legislature enjoins the respondents to prove by credible evidence
that the seizure of the Toyota and Nissan complied with the provisions of s 20
of the Act. That is, the scheme of Chapter 2 to the Act is such that even if
consent to search a vehicle is obtained the ultimate seizure (dispossession)
thereof must comply with the provisions of s 20 strictly. Failure on the part of
the police to show that the seizure was in compliance with s 20 will render the
seizure unlawful, and the removal of the ve hicles from Blackhi ll to the police
seizure unlawful, and the removal of the ve hicles from Blackhi ll to the police
pound an act of spoliation entitling the applicants to restoration ante omnia
regardless of the fact that they would not, at the time of search and seizure,
have been entitled to possess them in terms of s 68(6)(b) of the National
Road Traffic Act 93 of 1996, which provides:
"No person shall - without lawful cause be in possession of a motor
vehicle of which the engine or chassis number has been falsified,
replaced, altered, defaced, mutilated, or to which anything has been
added, or from which anything has been removed, or has been
tampered with in any other way.””
[18] In the circumstances it is for the Respondents to show that the decision taken
by the police to seize the truck and trailers falls within the ambit of Section 20 of the
Act. The proper approach to be adopted in applying the section was considered by
Didcott J in the case of Ndabeni v Minister of Law and Order and Another 1984
(3) SA 500 (D and C.L.D.) at 511D-E. The Learned Judge said:
"The second respondent, (that is the policeman concerned) no doubt thought
that there were reasonable grounds for the belief he held. That, however, was
by the way. Section 20 of the Criminal Procedure Act calls for the existence
in fact of reasonable grounds. And whether these exist in a given case must
be determined objectively. Milne J once said "(T)here can only be reasonable
cause to be lieve ... where, considered objectively, there are reasonable
grounds for the belief... It cannot be said that an officer has reasonable cause
to believe ... merely because he believes he has reasonable cause to
believe."
[19] The law on warrantless searches and seizures is trite. Since the Police did not
have a warrant they must prove that they had reasonable grounds to believe that a
search warrant would be issued to them if they had applied for it to the magistrate or
judge. Unfortunately the Respondents made no submissions in regards to their belief
that a search warrant would be issued to them, on the papers before court. This
court is however satisfied from a reading of the papers as a whole, that the Police
did indeed have reasonable cause to believe based on reasonable grounds that the
did indeed have reasonable cause to believe based on reasonable grounds that the
trucks and trailers in question was concerned in the commission or suspected
commission of an offence and/or was intended to be used in the commissioning of
an offence on the 10 th of March 2026. See the case of Hiya v The Minister of
Safety and Security and Another Case No 506/99 TK . Unfortunately, this court is
not satisfied that the police had reasonable grounds to believe that a search warrant
would be issued to them if they had applied for it on 10 March 2026. The 1 st
Respondent has therefore, due to an omission of addressing the issue of a search
warrant and that they had the belief that a search warrant would have been issued to
them had they applied, failed to satisfy the first requirement as laid down in Section
22(b)(i) of the Criminal Procedure Act. The further issue still remaining is the second
requirement in terms of Section 22(b)(ii) of the Criminal Procedure Act, which must
also be satisfied. Both Section 22(b)(i) and Section 22(b)(ii) must be satisfied and not
just the one or the other as the act clearly states "and" and not "or" in order for the
search and seizure without a warrant to be lawful.
[20] In light of the facts, as already stated here above, the truck and trailers were
searched and seized on the 10 th of March 2026. There is in my view no reason why
the 1st Respondent could not between the period from 10 March 2026 to 7 April 2026
obtain the necessary legal process from a judge or magistrate for the retention of the
truck and trailers. No explanation was given by the 1 st Respondent either, why the
necessary legal process could not be obtained. The continued dispossession, in
absence of any satisfactory explanation by the Respondents is therefore unlawful.
[21] The Full Bench in the case of Sitonga v Minister of Safety and Security
and 2 Others 2008 (1) SACR 376 (Tk) at paragraph [37] held as follows:
"Whilst it may result in the applicant in spoliation proceedings being placed in
possession of an article he or she may otherwise not lawfully possess, it
should be borne in mind that the mandament van spolie affords no more than
temporary relief The respondent can, subsequent to the applicant having
been restored in his or her possession, seek judicial dispossession, ejectment
been restored in his or her possession, seek judicial dispossession, ejectment
or other appropriate relief Applied to the facts of the present matter, it is
always open to the respondents to seek lawful dispossession of the vehicles
in terms of the provisions of section 21 read with section 20 of the Criminal
Procedure Act."
[22] Having regard to the fact to what was held in the Sitonga case supra the
Respondents can, subsequent to the Applicants having been restored in his/her or
its possession, seek judicial dispossession or other appropriate relief. Having said
that, in my view the same should apply to the fact that the 1 st Respondent, knowing
that the search and seizure was done without a warrant, could have sought judicial
dispossession or other appropriate relief during the period from 10 March 2026 to 7
April 2026 in order to ensure that the 1st Respondent acted lawfully.
[23] I therefore find that the First Respondent failed to prove the first requirement
due to their failure to address same or make submissions thereof, as well as the
second requirement in that the delay in obtaining a warrant would defeat the object
of the search (and seizure) and consequently the Respondents have failed to justify
the seizure of the trucks and trailers on legal grounds. The mere fact that the 1 st
Respondent had reason to belief that the truck and trailers were utilized in the
commission of a crime is simply not enough, more is required from the 1 st
Respondent to prove that the dispossession was lawful under the circumstances. In
essence the 1 st Respondent failed to make all the necessary averments required.
The act of spoliation is therefore proved and there is further no reason to allow the
continued detention of the truck and trailers by the 1st Respondent.
[24] There is no reason why costs should not be ordered to follow the event.
[25] I therefore make the following order:-
1. The Applicants' non-compliance with the rules of this Honourable Court
relating to notice and service and time limits be condoned and that the matter
be heard as urgent in terms of Rule 6(12)(a);
2. The Respondents are ordered to release to the Applicants, the truck
and trailers, the relevant particulars of the trucks and trailers being as per
prayers 2 and 3 of the Notice of Motion.
3. The Respondents are ordered to restore to the Applicants possession
of the truck and trailers with the relevant particulars of the trucks and trailers
being as per prayers 2 and 3 of the Notice of Motion.
4. The First Respondent to pay the costs of the application on a party and
party scale - which costs are to be taxed on High Court Scale A.
M. NAUDE-ODENDAAL
JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
HEARD ON : 7 APRIL 2026
JUDGMENT DELIVERED ON: 15 APRIL 2026.
This judgment was handed down electronically by
circulation to the parties' representatives by email.
The date and time for hand -down of the judgment
is deemed to be 15 APRIL 2026 at 12h30
FOR THE APPLICANTS : Adv. Moitsi
INSTRUCTED BY : Jadine Smit Attorneys Inc.
Polokwane
admin@jsmitattorneysinc.co.za
FOR THE RESPONDENTS: Adv. K. Sebothoma
INSTRUCTED BY : The State Attorney: Polokwane