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[2019] ZASCA 183
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Minister of Police and Another v Stanfield and Others (1328/2018) [2019] ZASCA 183; 2020 (1) SACR 339 (SCA) (2 December 2019)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 1328/2018
In
the matter between:
THE
MINISTER OF POLICE
FIRST
APPELLANT
THE
ACTING NATIONAL COMMISSIONER OF THE
SOUTH
AFRICAN POLICE
SERVICES SECOND
APPELLANT
and
RALPH
ISRAEL
STANFIELD FIRST
RESPONDENT
NICOLE
JOHNSON SECOND
RESPONDENT
FRANCISCA
STANFIELD THIRD
RESPONDENT
Neutral
citation:
The Minister of Police v Stanfield
(1328/2018)
[2019] ZASCA 183
(02 December 2019)
Coram:
Navsa, Mocumie and Plasket JJA and
Weiner and Dolamo AJJA
Heard:
19 November 2019
Delivered:
02 December 2019
Summary:
Criminal procedure – Search and
seizure of firearms in terms of s 23 of the Criminal Procedure Act 51
of 1977 (CPA) –
Firearms Control Act 60 of 2000
– return
of firearms in terms of
s 31(1)
(a)
of the CPA - whether criminal proceedings pending – whether the
firearms were correctly retained by the appellants
ORDER
On
appeal from:
Gauteng Division of the
High Court, Johannesburg (Twala J sitting as court of first
instance):
1. The appeal is upheld
with costs, including the costs of two counsel.
2. The order of the court
a quo is set aside and replaced with the following:
‘
The applicants’
application is dismissed with costs, including the costs of two
counsel.’
JUDGMENT
Weiner
AJA (
Navsa, Mocumie and Plasket JJA and
Dolamo AJA concurring)
[1]
On 25 June 2014, the South African Police Services (SAPS) seized
certain firearms (the firearms) from the respondents in terms
of a
search and seizure warrant issued under the Criminal Procedure Act 51
of 1977 (CPA). The respondents were arrested and charged
with various
offences relating to the unlawful issuing of the licences for the
firearms.
[2]
The respondents applied to the Gauteng Division of the High Court,
Johannesburg (
Twala
J sitting as court of first instance
),
for
an
order compelling the SAPS to return the firearms to them in terms of
s 31(1)(
a)
of the
CPA,
alternatively, that the matter be referred to an enquiry in terms of
s 102 of the Firearms Control Act 60 of 2000 (the FCA).
[1]
The
high court granted the alternative relief. Leave to appeal was
refused by the high court. This appeal is with the leave of this
court.
Background
[3]
The respondents first launched an application against the SAPS in the
Western Cape Division of the High Court, Cape Town (the
Cape Town
application) on 15 July 2014, seeking the return of the firearms and
other items seized. In the answering affidavit,
the SAPS alleged that
the licences in respect of the firearms had been obtained unlawfully
and that the possession of such firearms
by the respondents would
have been unlawful. The application was postponed
sine
die
. By agreement between the parties, the
court ordered that the SAPS may retain the firearms until obliged to
return them or to dispose
of them in terms of the provisions of the
CPA.
[4]
The respondents then launched the application in the court a quo.
They claimed that the charges against them pertaining to the
licences
of the firearms had been withdrawn and that, accordingly, in terms of
s 31(1)(
a
) of the CPA, the firearms ought to be returned to
them. Section 31(1)(
a
) provides as follows:
‘
If no criminal
proceedings are instituted in connection with any article referred to
in section 30
(c)
or if it appears that such article is not
required at the trial for 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 such person may
lawfully
possess such
article, or, if such person may not lawfully possess such article, to
the person who may lawfully possess it.’
[Emphasis added]
[5]
In their answering affidavit, t
he appellants
contended that the charges were only provisionally withdrawn, as
the
Director of Public Prosecutions (DPP) was awaiting a directive from
the National Director of Public Prosecutions (NDPP) (regarding
the
place at which the criminal proceedings were to be conducted), and
written authority from the NDPP to continue with charges
contemplated
in s 2(1) of the Prevention of Organised Crime Act 121 of 1998
(POCA).
[6]
The high court found that criminal proceedings as contemplated in s
31(1)(
a
)
of the CPA were not pending against the respondents. It held,
however, that it was not persuaded that the respondents were entitled
to the return of the firearms in terms of s
31(1)(
a
)
of the CPA as there were ‘legitimate concerns’
as to the lawfulness of the firearm licences. The high court then
ordered an enquiry in terms of s 102 of the FCA. It is against this
order that the appeal lies.
[7]
In this court it was argued that, inasmuch as the respondents sought
final relief in motion proceedings, on an application of
the
Plascon
Evans
[2]
rule, the appellants had established that the respondents had
obtained their licences unlawfully and were accordingly not entitled
to possess the firearms, with the result that the application should
have been dismissed. The high court thus erred in ordering
the
enquiry. They contended that the provisions of s 102 of the FCA has
no application in the present case.
[8]
Shortly prior to the hearing, the appellants brought an application
in this court seeking an order that evidence of certain
events that
occurred after the delivery of the judgment in the high court (on 14
December 2017), be admitted. For reasons that
will be apparent, this
evidence is relevant and must be considered for a proper resolution
of the appeal. The respondents rightly
conceded that the new evidence
should be admitted.
[9]
The further evidence is set out in the affidavit of Lieutenant
Colonel Roger Naude (Lt Col Naude), a member of the SAPS stationed
at
the Western Cape Anti-Gang Unit. He is the investigating officer in
the criminal matter. On 1 February 2018, the NDPP
directed and
authorised the prosecution of twenty-four persons, including the
respondents (the accused), on several charges including
offences
contemplated in POCA. The charge sheet has been finalised and the
prosecutor in the Western Cape in the Khayelitsha regional
court (the
Khayelitsha court) has issued summonses against the accused. The
accused appeared in that court on 26 April 2018, when
the matter was
postponed for purposes of a plea.
[10]
Before the trial could commence, the respondents launched a further
application in the Gauteng Division of the High Court,
Pretoria (the
Pretoria application), in which they sought a suspension of the
prosecution and a review of the NDPP’s decision
to consolidate
the prosecutions of all the accused and his designation of the
Khayelitsha court for the trial.
[11]
The Pretoria application was heard by Potteril J and dismissed on 17
September 2019. In response to the appellant’s application
to
adduce further evidence in this court, the respondents filed an
answering affidavit attaching their application for leave to
appeal
against the judgment of Potteril J. The respondents argue that the
decision by the NDPP to designate the Khayelitsha court
for the
prosecution was reviewable on the basis that the NDPP did not have
the power to designate a particular court for the trial.
The
respondents did not, in that application, contend that criminal
proceedings were not pending, nor did they seek the setting
aside of
the charges. The application to adduce further evidence is
accordingly granted.
The
issue: section 31(1)(
a
) of the CPA.
[12]
Section
31(1)(
a
)
provides
that where no criminal proceedings have been instituted and where the
seized articles would not be required at the trial,
the articles
should be returned to the person from whom they were seized, provided
that such party may lawfully possess them. In
Dookie
v
Minister
of Law and Order
,
[3]
the court held that the requirement that no criminal proceedings were
pending ‘would not be satisfied merely by proof that
no
proceedings were pending at the time of the institution of the
application for return of the article; but that it was necessary
for
the applicant to establish that there was
no
reasonable likelihood of criminal proceedings being instituted in
connection with the article in the foreseeable future’.
[4]
The
onus is on the applicant to show, on a balance of probabilities, that
there are no pending proceedings, or no likelihood of
proceedings
being instituted, and that the article will not be needed for the
trial.
[5]
Where the trial is pending, ‘an application for the return of
the article may be premature as it may be required for purposes
of
the trial’.
[6]
[13]
Only if the respondents discharge the onus referred to above, must
the appellants show, on a balance of probabilities, that
the
respondents may not lawfully possess the article.
[7]
Having regard to the facts set out in the affidavit of Lt Col Naude
(in the application to adduce further evidence), which are
undisputed, the respondents cannot satisfy the requirement that
criminal charges are not pending. That should be the end of the
matter. However, the respondents contended that this court must
consider the situation at the time when the high court granted
its
order. According to the respondents, no criminal proceedings were
pending at such time. I will deal briefly with this argument.
[14]
Lt Col Naude, in the proceedings before the high court explained the
complexities of the investigation, due to the involvement
of members
of the SAPS, the firearms clubs which conducted the proficiency
testing, and other individuals and security companies.
When the
respondents appeared in court on 17 October 2016, the investigation
was complete; the respondents were in possession of
a charge sheet
and further particulars had been supplied. The criminal matter could
not continue on 17 October 2016, and the State
provisionally withdrew
the charges for the reasons cited above. It was, however, made clear
by the DPP that the prosecution would
continue on receipt of the
required authorisations from the NDPP.
[15]
The DDP subsequently became aware that several other similar
investigations had been referred to other investigators and
prosecutors
in different provinces. She explained that the offences
were in the process of being linked; however the scale of the
offences
was vastly greater than what was suspected at the time. It
was complicated by the number of suspects in different provinces and
the suspected involvement of present and past members of the SAPS.
[16]
On the basis of the evidence provided by the appellants, which could
not be disputed, I am satisfied that criminal proceedings
were
pending at the time the high court made its order, in the sense that
even though the charges had been withdrawn, there was
a reasonable
likelihood that they would be reinstated. The high court thus erred
in finding the contrary. Whether the relevant
time is when the matter
was heard in the high court or now, criminal charges were, and are,
pending for the purposes of s 31(1)(
a
) of the CPA. This is
dispositive of the appellants’ case.
[17]
Even though it is therefore not necessary to consider whether the
appellants have shown that, if the firearms were to be returned
to
the respondents, their possession thereof would be unlawful, for the
sake of completeness, I will deal with this issue. The
appellants
contended that the respondents are guilty of several offences for
failing to comply with the provisions of the FCA and
the regulations.
These offences include the unlawful possession of a firearm or
ammunition.
[18]
The principal evidence of the appellants in this regard, is contained
in the affidavit of Mr Jan Lewis Bezuidenhout (Mr Bezuidenhout)
who
is employed as a Data Capturer at the Central Firearms Register (CFR)
of the SAPS. He is the only data capturer for the CFR,
Gauteng North.
Olifantsfontein, where the respondents applied for their licences,
falls within his jurisdiction. In order to apply
for a licence, a
written application for the licence, as well as a competency
certificate must be delivered to the Designated Firearm
Officer (DFO)
responsible for the area in which the applicant ordinarily resides.
The DFO enters the application in the SAP 86
register. The
applications together with proof of payment must be sent for
screening to the Provisional Firearms Liquor and Second
Hand Goods
Office (FLASH), for the province within which the DFO is based.
Thereafter the documents must be sent to the CFR. Only
then could an
application finally be considered and determined by the CFR.
[19]
Mr Bezuidenhout alone is responsible for the receipt of new firearm
applications from FLASH in Gauteng North. He stated that
no written
applications were submitted by the respondents or received by the CFR
for either a licence or a competency certificate.
No copies of the
applications and proof of payment have been attached to the
respondents’ affidavits. The appellants contended
that this is
because such documents do not exist.
[20]
In addition, the DFO may not receive an application from an applicant
who does not ordinarily reside in the area. The respondents
have
never been ordinarily resident in the Olifantsfontein area. Therefore
the applications could not legitimately have been submitted
to the
DFO for that area. According to Lt Col Naude, the serial numbers
allocated to the respondents in the SAPS 86 register at
Olifantsfontein are false. Several relatives and friends of the
respondents also applied to the Olifantsfontein SAPS, whilst residing
in the Western Cape, and feature in the SAPS 86 register. The
respondents’ only response to this is that the CFR was
dysfunctional
and cannot be relied upon.
[21]
Lt Col Naude also visited the two firearms clubs where the
respondents allegedly had proficiency training. He ascertained that
the respondents were not tested as required in terms of s 9(2)(
q
)
and (
r
)
of the FCA.
[8]
The probabilities
are that the certificates were therefore unlawfully issued by the two
clubs. The respondents are members of the
International Firearm
Training Academy (IFTA). A member of IFTA is issued with a logbook in
which to record training and testing.
The first respondent’s
logbook contains no entries in this regard. No logbooks were found in
the possession of the other
two respondents.
[22]
The appellants submitted that the reason the respondents approached
the Olifantsfontein SAPS, is because a member of the SAPS
stationed
there, Lt April, was prepared to assist them unlawfully. He is to
stand trial with the respondents. Certain other representatives
of
the CFR who were suspected of involvement in issuing licences to the
respondents unlawfully have also been arrested and have
appeared with
the respondents and Lt April in court. This court is not enjoined to
finally decide whether the licences were obtained
unlawfully. That is
the subject matter of the criminal proceedings. This court must
decide, on a balance of probabilities, whether
the appellants’
retention of the firearms is justified. The appellants have clearly
shown this to be the case. Accordingly,
the respondents are not
entitled, on any of the grounds in s 31(1)(
a
)
of the
CPA to return of the firearms.
Section 102 of the FCA
[23]
Finally, the respondents persisted in their reliance upon s 102 of
the FCA (despite the fact that they disavowed such reliance
in the
affidavits in the court a quo). Such provisions do not assist the
respondents. Whilst the registrar may conduct an investigation
to
determine whether a person is unfit to possess a firearm in terms of
the section, it does not oust the provisions of s 31(1)(
a
) of
the CPA. The central issue in this case is not whether the
respondents are unfit to possess firearms, but whether the firearms
were justifiably retained by the appellants in terms of the CPA. That
issue has been answered in favour of the appellants.
The order
[24]
In the result, the following order is made:
1. The appeal is upheld
with costs, including the costs of two counsel.
2. The order of court a
quo is set aside and replaced with the following:
‘
The applicants’
application is dismissed with costs, including the costs of two
counsel.’
______________________
S
E Weiner
Acting
Judge of Appeal
APPEARANCES
For
appellants:
R F Van Rooyen SC (with him A Jooster)
Instructed
by:
Srare
Attorney, Cape Town
State
Attorney, Bloemfontein
For
respondent:
N Snyman (with him D Keet)
Instructed
by:
M J
Hood Associates, Revonia
Lovius
Block Attorneys, Bloemfontein
[1]
Section 102(1)(
e
)
provides that ‘[t]he Registrar may declare a person unfit to
possess a firearm if, on the grounds of information contained
in a
statement under oath . . . it appears that— . . .
that
person has provided information required in terms of this Act which
is false or misleading.’
The
procedure for these purposes is set out in subsecs (2), (3) and (4)
of s 102.
[2]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) 634-635; see also
National
Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277(SCA)
para 26.
[3]
Dookie
v Minister of Law and Order & others
[1991]
1 All SA 390 (D); 1991 (2) SACR 153 (D).
[4]
Ibid
at 156C-E.
[5]
Van
der Merwe & another v Taylor NO & Others
[2007]
ZACC 16
;
2008 (1) SA 1
CC (
Van
der Merwe
)
para 51.
[6]
Van der
Merwe
para 55.
[7]
Dookie
,
fn 3 above, at 156C_F
;
National Director of Public Prosecutions v Five Star Import &
Export (Pty) Ltd
[2018]
ZAWCHC 107
;
2018 (2) SACR 513
(WCC) at para 45
.
[8]
Section 9 (2)(
q
)
and (
r
)
of the FCA provide as follows:
‘
(2) Where a
person has not previously obtained a competency certificate, a
competency certificate may only be issued to such person,
if he or
she—
. . .
(q) has successfully
completed the prescribed test on knowledge of this Act;
(r) has successfully
completed the prescribed training and practical tests regarding the
safe and efficient handling of a firearm’.