Van Der Merwe and Another v Taylor NO and Others (CCT 45/06) [2007] ZACC 16; 2007 (11) BCLR 1167 (CC); 2008 (1) SA 1 (CC) (14 September 2007)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
2007
>>
[2007] ZACC 16
|

|

Van Der Merwe and Another v Taylor NO and Others (CCT 45/06) [2007] ZACC 16; 2007 (11) BCLR 1167 (CC); 2008 (1) SA 1 (CC) (14 September 2007)

Links to summary

CONSTITUTIONAL
COURT OF SOUTH AFRICA
 Case CCT 45/06
                                                                                                                        Â
[2007]
ZACC 16
   Â
GARY WALTER VAN DER
MERWE                                                            Â
First
applicant
ZONNEKUS MANSION (PTY) LTD                                                         Â
Second
applicant
versus
INSPECTOR TAYLOR                                                                                 Â
First
respondent
THE MINISTER OF SAFETY AND SECURITY                                      Second
respondent
THE DIRECTOR OF PUBLIC PROSECUTIONS                                       Third
respondent
THE COMMISSIONER FOR
THE SOUTH AFRICAN REVENUE SERVICE                                         Fourth
respondent
Heard on  : 21 November 2006
Decided on : 14
September 2007
JUDGMENT
MOKGORO J:
Introduction
[1]
This case concerns the right to claim the return of property, in
the light of the Constitution, following its seizure by the State.Â
Specifically,
the
case is about the seizure of a large sum of foreign
currency by State officials and a claim for its return.  It is an application

for leave to appeal against the decision of the full court in the Cape High Court.
[1]
The parties
[2]
The application is brought by Mr Gary Walter van
der Merwe (the first applicant), together with Zonnekus Mansion (Pty) Ltd (the
second applicant), a company owned by a family trust of which the first
applicant is a trustee and sole director.  Inspector Taylor,
[2]
an officer in the South African Police Service (the SAPS) is the first
respondent; the Minister of Safety and Security (the Minister)
is the second
respondent; the Director of Public Prosecutions (the DPP) is the third
respondent; and the Commissioner for the South
African Revenue Service (the
Commissioner or SARS) is the fourth respondent.
Background
[3]
On 13 July 2004 Mr van der Merwe was set to depart from Cape Town International Airport to travel to Las Palmas via London intending
as he said, to join his family and friends for an extended yachting
vacation in Europe.  After he had passed through the security
checkpoint at the
airport and before passing through passport control, a customs official
requested him to complete a customs declaration
form.
[3]
 Once he had done so, his hand luggage was searched with his consent and an
amount of €130 000 and US$21 249 which, according
to the exchange rate at the
time,
[4]
together
amounted to approximately R1,2 million, was found in his possession.
[4]
Not certain which law Mr van der Merwe had
contravened, the customs officials let him proceed to the aircraft. They let
him board
the plane.  Before his departure, however, coming to believe that
Regulation 3(1)(a)
[5]
was being
contravened, the SAPS removed him from the aircraft and arrested him.  The
foreign currency was confiscated.  They,
however, called the SAPS advising them
of Mr van der Merwe’s imminent departure with a substantial amount of foreign
currency.Â
The customs officials handed the matter over to the SAPS.  Mr van
der Merwe’s explanation, on inquiry, was that the foreign currency
was the
total allowance permissible for a group of people,
[6]
consisting of eight adults and four children who, except for himself, had
already left for Las Palmas two days earlier.  According
to him, he was
carrying the foreign currency on their behalf and his personal travel allowance
was included.  The €130 000 he
was carrying, he explained, included €20 865
issued to him as his own allowance which he had purchased on his credit card
account
held at Nedbank.  For each of his two minor daughters, he had bought an
amount of €7 800 per child.  The money had been sourced
from: funds acquired
from the sale of immovable property owned by the second applicant,
[7]
gambling winnings, redemption
at a casino, first applicant’s children’s savings account, and the available
amount on his credit
card.  The US Dollars, he said, belonged to a friend
, Mr Allison
.
[5]
The matter was thereafter referred to the
commercial branch of the SAPS who detained Mr van der Merwe overnight at the
Bellville
Police Station, releasing him on bail the following day.
[8]
 The currency was recorded in the SAPS register, placed in a bag, and tagged.
[6]
On the day of Mr van der Merwe’s release, SARS
issued Inspector Taylor with a notice under section 99
[9]
of the Income Tax Act
[10]
(the section
99 notice).  Section 99 permits the Commissioner to appoint someone as agent
for a person with tax obligations to
SARS to ensure those obligations are met.Â
The section 99 notice appointed Inspector Taylor, the investigating officer in
the
case, as agent of Mr van der Merwe and a company referred to only as
Wellness International Network (Pty) Ltd (Wellness).  Neither
Mr van der Merwe nor
Wellness had any outstanding tax obligations established on the record.  On 19 July 2004 Inspector Taylor
handed over the currency to SARS in terms of the section 99
notice.
[7]
During oral argument before this Court we were
told that SARS had since handed over the currency to the South African Reserve
Bank
(the SARB)
[11]
for it to hold, pending Mr van der Merwe’s criminal trial.  The transfer
apparently followed the High Court ruling that SARS
had no legal claim to the
currency.  However, this transfer occurred without Mr van der Merwe’s knowledge
as no notice was given
to him.  It was never formally mentioned in the
affidavits and Mr van der Merwe never had an opportunity to respond to that
transfer.Â
Mr Snyman of SARS who had received the currency from Inspector
Taylor at the police station indemnified the SAPS with regard to
the holding of
the foreign currency and issued Inspector Taylor with a receipt.  The indemnity
purported to be issued in respect
of property referred to in section 31(1)(a)
of the Criminal Procedure Act 51 of 1977 (CPA),
[12]
giving reasonable indication that the CPA was being invoked as the basis for
the seizure of the foreign currency.
[8]
Shortly after his release, the applicants
instituted action on an urgent basis in the High Court for the return of the
foreign currency.Â
The application was dismissed with costs.  An appeal to the
full court was similarly dismissed.
Proceedings in the Cape High Court
[9]
The applicants originally sought to spoliate the
seized currency as well as an order granting Mr van der Merwe permission to
leave
South Africa with the foreign currency.
[13]
 They argued that the amount seized was within the total permissible allowance
for foreign travel for members of the group.Â
At the hearing, however, they
claimed the return of the currency under the
rei vindicatio
on the basis
that Mr van der Merwe was the owner.Â
Unable to prove
ownership of the US Dollars, Mr van der Merwe sought only the return of the
€130 000 for which he had tendered
documentary proof.
[14]
  He conceded that
he was carrying the US Dollars on behalf of Mr Allison.
[15]
[10]
The High Court was confronted with the question
whether SARS acted lawfully by appointing Inspector Taylor as agent under
section
99 of the Income Tax Act without proving or even alleging the existence
of tax obligations on the part of Mr van der Merwe or any
of his companies.
[11]
The court dismissed the application, although it
held that SARS had not established any legal entitlement to hold the currency
under
section 99, it concluded that the currency had nevertheless been
legitimately forfeited to the National Revenue Fund under Regulation
3(5)
[16]
and that accordingly the respondents had shown a statutory right to hold the
money.
[17]
Before the full court of the High Court
[12]
On appeal to the full court, Mr van der Merwe
argued that he was the owner of the €130 000, that it remained his property and
for those reasons he was entitled to its return.
[18]
 The court held that Mr van der Merwe had failed to establish ownership and
could therefore not succeed in his vindicatory action.Â
The court declined to
decide on what legal basis the State held the currency.
In this Court
[13]
Under the impression that the currency was still
in the possession of SARS, the applicants contend that the only real issue for
determination by this Court was whether SARS was legally entitled to hold the
foreign currency.  In their submission, respondents
had relied solely on
section 99 of the Income Tax Act as the basis for the holding of the currency.Â
The applicants contended
that should the Court not accept that section 99
formed a legal basis for the respondents to hold the currency, the appeal must

succeed.  The applicants argue that the respondents were not entitled to hold
the currency under section 99.  The applicants
submit to respondents’ oral
argument before Court that the currency was seized under section 20 of the CPA,
[19]
making
Regulation 3(5) inapplicable.  In the alternative they submit, if the Court
finds that section 20 is not applicable and
the currency had been seized under
Regulation 3(5), that regulation is unconstitutional because it permits the
automatic forfeiture
of property, thereby violating Mr van der Merwe’s property
rights under section 25(1) of the Constitution.  The applicants further
submit
that Regulation 3(5) also violates section 34 of the Constitution.
[14]
The applicants attack Regulation 3(5) on the
basis that it affords Treasury the discretion to forfeit without any guidelines.Â
This, they submit, is unconstitutional.  They also contend that even if the
money was seized under section 20 of the CPA it is
no longer held under that
provision.  Contending that once SARS returned the money to the SAPS, the
defence advanced by the respondents
in the High Court, namely, that the foreign
currency had been paid over to SARS pursuant to the section 99 notice, can no
longer
hold.  In those circumstances, the money should have been returned to
them as the lawful owners.
[15]
The respondents’ conduct as organs of State, the applicants
further submit, conflicts with their duties under the Constitution,
in
particular sections 1 and 195.  They have acted contrary to the basic values
governing public administration contained in section
195 of the Constitution.  These
provisions require, among others things, a high standard of professional and
ethical conduct and
accountability with which the respondents have failed to
comply.
[20]
  T
he State,
they submit, did not lead by example.
[21]
[16]
The respondents argued that the criminal trial
has not yet been concluded and a possibility still exists that an acquittal
might
lead to a refund of the currency.  For this reason, they contend, the
SAPS could not return the currency at this stage.  In order
to succeed in a
claim for the return of the currency under the
rei vindicatio
, Mr van
der Merwe, they further contend,
must
establish that he is the owner of
the foreign currency.  If he cannot, no further enquiry is necessary.  The full
court dismissed
the applicants’ claim on the basis that they had failed to
prove ownership of the currency.  That, the respondents assert, is

independently decisive of the appeal.  Besides, they further contend, the
question of applicants’ ownership is not a constitutional
matter nor is it an
issue connected with a constitutional matter.  Additionally, there exists no
reasonable prospect that this
Court would come to a conclusion different from
that reached by the full court.  Consequently, they argue that the application

should be dismissed.
Legal basis for seizure and holding of the foreign currency
[17]
Before assessing the merits of the parties’
arguments, it is necessary to summarise the respondents’ vacillating position
in
respect of the legal basis for the seizure and continued holding of the foreign
currency.
[18]
From the moment of Mr van der Merwe’s arrest to
the appearance of the parties before this Court there was no certainty as to
the
legal basis for the seizure and holding of the foreign currency.  It is
notable that before the High Court, reliance was placed
only on section 99 of
the Income Tax Act by first, second and third respondents as the legal basis
for holding the currency.Â
However, in oral argument before this Court,
respondents shifted their basis from section 99 and Regulation 3(5) to section
20
of the CPA.  This constant vacillation on the part of the respondents
created much doubt and caused inconvenience to the applicants.Â
It was also not
helpful to this Court.
Application for leave to appeal to this Court
[19]
Leave will be granted only if the applicants raise
a
constitutional matter or an
issue connected with a decision on a constitutional
matter and when it is in the interests of justice to grant leave.
[22]
[20]
Once the State seizes private property as it did
in this case, and the legal basis for the seizure and holding is in dispute,
the
question of arbitrary deprivation of property under section 25(1) of the
Constitution is clearly implicated, making the matter intrinsically
a
constitutional one.  In that context, the High Court decisions regarding the
legal basis on which the respondents seized and
are holding the foreign
currency, as well as the question whether applicants have proven ownership of
the currency, are issues
connected with a decision on a constitutional matter.Â
It is not in all cases that this Court will consider a constitutional matter

once it is raised.
[23]
  The interests of justice in the circumstances of a case will
determine whether a constitutional matter raised in an application
will be
heard.  In the circumstances of this case, in particular against the background
of the conflicting decisions of the High
Court
[24]
and
the vacillation of the respondents regarding the legal basis for the seizure
and holding of the currency, it is in the interests
of justice that the matter
be heard.  The application for leave to appeal is granted.
Whether Mr van der Merwe is owner of the foreign currency
[21]
The total amount of foreign currency seized by
the respondents was in two denominations – €130 000 and US$21 249.  Applicants

claim the return of the €130 000 on the basis that Mr van der Merwe is the
owner.  From the outset, Mr van der Merwe had
stated that the US$21 249 found
in his possession belonged not to him but to Mr Allison, on whose behalf he was
carrying it.Â
His action, based on the
rei vindicatio,
is therefore
confined to the return of the €130 000.  He does not claim the return of the US$21
249.  That is common cause between
the parties.
[22]
An action based on the
rei vindicatio
is available
to an owner
[25]
who has been deprived of his or her property without consent and who wishes to
recover it from the one who retains possession.
[26]
  In order to succeed with any
vindicatory action, generally in addition to ownership, the applicant also has
to prove that the
property was in possession of the respondent at the beginning
of the proceedings, that the property in question is still in existence
and is
clearly identifiable.
[27]
[23]
In this Court, the key questions are whether Mr van
der Merwe is the owner of the foreign currency he claims must be returned to

him under the
rei vindicatio
, and if so, whether the State is entitled
to hold it pending the trial.  The full court found that he had failed to prove
ownership
of the €130 000 and was therefore, not entitled to its return.  It is
against that finding that the applicants appeal.
[24]
Mr van der Merwe does not claim that the seizure
of his foreign currency constituted arbitrary deprivation of property in terms
of section 25(1) of the Constitution.  On the contrary, he concedes that the
seizure, pursuant to section 20 of the CPA, was lawful.Â
He comes to this Court
claiming the return under the
rei vindicatio
of the €130 000 seized in
terms of section 20 of the CPA
on the basis that he is the owner and
that the State has no authority to hold the currency.  Further, he does not
question the
constitutionality of section 20.
[25]
It is necessary to approach these two key
questions in the light of section 25(1) of the Constitution, which also
protects the right
of ownership.  Section 25(1) of the Constitution provides:
“No one may be deprived of property except
in terms of law of general application, and no law may permit arbitrary
deprivation
of property.”
Under this provision no one,
including those accused of contraventions of the law as in this case, may be
deprived of property except
in terms of a law of general application.  That
law, however, may not permit the deprivation of property in an arbitrary manner.Â
Section 25(1) generally
protects all rights held in relation to property, including ownership
.
[28]
[26]
Ownership potentially confers upon the owner the
most complete or comprehensive right in or control over a thing.
[29]
 In
Gien v Gien
,
[30]
ownership was defined as—
“. . . the most comprehensive real right that a person can
have in respect of a thing.  The point of departure is that a person
can, in
respect of immovable property, do with and on his property as he pleases.  This
apparently unfettered freedom is, however,
a half-truth.  The absolute power of
an owner is limited by the restrictions imposed thereupon by the law . . . .”
[31]
The most
comprehensive control over the property does not imply unfettered freedom to do
with the thing as one pleases.  However
comprehensive, and although protected
against arbitrary deprivation under section 25(1), ownership like any other
right, is not
absolute.
[27]
In
First National Bank of SA Ltd t/a Wesbank
v Commissioner, South African Revenue Service and Another; First National Bank
of SA Ltd
t/a Wesbank v Minister of Finance
(
FNB
) this Court held:
“In its context ‘arbitrary’, as used in
section 25, is not limited to non-rational deprivations, in the sense of there
being
no rational connection between means and ends.  It refers to a wider
concept and a broader controlling principle that is more demanding
than an
enquiry into mere rationality.  At the same time it is a narrower and less
intrusive concept than that of the proportionality
evaluation required by the
limitation provisions of section 36.  This is so because the standard set in
section 36 is ‘reasonableness’
and ‘justifiability’, whilst the standard set in
section 25 is ‘arbitrariness’.  This distinction must be kept in mind
when
interpreting and applying the two sections.”
[32]
[28]
The deprivation, the Court held further, will be
arbitrary within the meaning of section 25 where the law does not provide
sufficient
reason for the deprivation in question or if it is procedurally
unfair.
[33]
 This dictum was followed and the principle further established in
Mkontwana
.
[34]
[29]
Before the full court, applicants sought the
return of the foreign currency on the basis of the
rei vindicatio
.  Waglay
J however, found that Mr van der Merwe had failed to show ownership.  He held:
“In any event, before the appellant can
succeed with the
rei vindicatio
he needs to satisfy the court that he is
in fact the owner of the foreign currency seized . . . [t]his founding
affidavit does
not support first appellant’s contention that he is in fact the
owner of the 130 000 Euros seized.  The first appellant, under
oath, states
that the foreign currency belongs to Zonnekus and himself . . . .  He then
states that he was merely carrying the
foreign currency for others in the group
. . . and adds that he was doing so for reasons of safety . . . .  Counsel for
the appellants
was at pains to explain that although the appellants claim that
the South African monies utilised to purchase the foreign currency
did not only
belong to the first appellant, the fact that those monies were deposited into
the first appellant’s banking account
made him the owner of the South African
monies.  This may be true but once the first appellant obtained the foreign
currency and
did not regard this as his own but recognised that it was owned by
others as reflected in his affidavit, it cannot be said that
he is the owner of
it, notwithstanding that he may have purchased the foreign currency from his
own funds.”
[35]
[30]
The €130 000 found in Mr van der Merwe’s
possession at the airport included €20 865 which he had bought for himself.  As
the record shows, the currency had been issued to him personally on
7 July 2004
, as his own travel allowance.  This
fact was not disputed.  On the contrary, it was indirectly acknowledged by Mr
Wright
[36]
who made it the basis of a denial that Mr van der Merwe was
entitled to purchase any further foreign currency as he had exhausted
his
permissible annual travel allowance for the calendar year.  Mr van der Merwe
submitted that the source of the funds included
the proceeds of the sale of
property owned by Zonnekus Mansions, which in turn is wholly owned by the
family trust named Eagles
Trust of which he is a trustee and his children sole
beneficiaries, entitling him to claim under the
rei vindicatio
.
[37]
 This too was not in dispute.  Applicants asserted in the
alternative that at the very least, Mr van der Merwe was the owner of
the €20
865 issued to him personally.  None of the respondents disputed this assertion.Â
Under these circumstances it could
not be gainsaid that Mr van der Merwe is
indeed the owner of the €20 865.
[38]
  The full court overlooked this important distinction, which formed
the basis of the applicants’ alternative argument in that
court.  It therefore
erred in its finding that Mr van der Merwe did not prove ownership of the
foreign currency.
[31]
Based on the evidence on record, the applicants
have clearly shown that Mr van der Merwe is the owner of at least €20 865.  I

therefore make a finding to that effect.  The finding of the full court, that
he did not prove ownership of the foreign currency,
is therefore incorrect and
must be overturned.
[32]
The question is whether Mr van der Merwe also
owned the balance of the Euros, amounting to €109 135 which he purchased as
travel
allowance, in the names of eight members of the travelling group which
included himself, his wife, his children and his mother.
[39]
[33]
Before the full court, applicants argued that
all the funds utilised for the purchase of the foreign currency, including the
proceeds
from the sale of properties which belonged to second applicant and
which were deposited into his credit card account made him owner
thereof.  Assuming
that that may be true, Waglay J however concluded, that
once Mr van der Merwe had
purchased the foreign currency and did not regard it as his own but recognised
that it was owned by others
as reflected in his affidavit, it cannot be said
that he is the owner, notwithstanding that he may have purchased it from his own

funds.
[40]
[34]
In this Court, the applicants fiercely contended
that the money with which the foreign currency had been purchased, which
included
proceeds from the sale of second applicant’s property, belonged to Mr van
der Merwe.  The money was paid into his Nedbank credit
card account they
argued,
[41]
and the account was debited with the amount of €130 000, obtained by using the
permissible travel allowance of foreign currency
[42]
for those members of his
entourage, including himself.
[35]
According to his submissions, Mr van der Merwe
had arranged to obtain that large amount of Euros because cash, as opposed to
traveller’s
cheques or a bank draft, was preferred.  The idea, he further
contended, was to facilitate payment to the crew in cash, given the
absence of
efficient banking facilities during the voyage.  Respondents did not refute
these contentions.
[36]
The method used to obtain the maximum amount of
foreign currency from the bank enabled him to service the financial needs of
the
voyage, for which he was solely responsible, and to provide sufficient
finance to sustain the European holiday, he submitted.Â
In this context
therefore, the purchase of the foreign currency in the names of members of his
group, with his own money, was only
nominal.  Having obtained the foreign
currency in their names, he was carrying it as their travel allowance.
[37]
Mr van der Merwe bought the Euros from Nedbank
which is authorised to dispense foreign currency.  In that regard, the purchase
of the Euros was authorised and not illegal.  However, the method he used to
obtain the maximum amount of Euros in cash, purchasing
most of it by utilising
the foreign currency travel allowance of members of his group and exceeding his
own foreign currency travelling
allowance, may have been unlawful; a trial in
that regard is still pending.  Even if his actions were unlawful, that by
itself,
outside of the forfeiture process, should not divest him of ownership
of his foreign currency.
[38]
Under the
rei vindicatio
, once a claimant
establishes ownership in the thing in issue, where the respondent is in
possession at the commencement of the
action, the thing shall be immediately
returnable, unless the respondent can show cause why the property shall not
revert to the
owner.
[43]
Â
Mr van der Merwe based his action for the return of the foreign currency on the
rei vindicatio
.  It was the contention of the respondents that once he
failed to establish ownership, as the full court found, it was correct
to hold
that the foreign currency should not revert to him.  Accordingly, if Mr van der
Merwe is able to establish in this Court
that he remained the owner of the
foreign currency, it stands to reason that the currency must be returned to
him.
[39]
The question whether the money utilised to
purchase the foreign currency belonged to Mr van der Merwe is not in dispute
before this
Court, the full court having made an assumption to that effect.  I
will therefore proceed on the basis of that assumption.  What
is in issue,
however, is whether the foreign currency purchased by Mr van der Merwe with
that money,
[44]
and obtained by him utilising the permissible travel allowance of individual
members of the travelling group and purchased in their
names, and which
remained in Mr van der Merwe’s possession, belongs to him or not.
Transfer
of ownership
[40]
At common law, ownership of property passes from
one person to another when the following general requirements, amongst others,
are met.  First, the transferor must be capable of transferring ownership.
[45]
 Second, the transferee must be capable of acquiring ownership.
[46]
 Third, the transferor must
have the intention to transfer ownership and the transferee the intention to receive
ownership.
[47]
Â
Fourth, with regard to movables, transfer of ownership is completed by delivery
of the thing.
[48]
[41]
The third requirement is the focus of the
dispute between the parties.  Important is the question whether having bought
the currency
in the names of those members, as he did, and carrying it as
foreign exchange allowance Mr van der Merwe intended to transfer ownership
from
himself to those members.
[42]
In
Trust Bank van Afrika Bpk v Western Bank
Bpk en Andere NNO
,
[49]
it was held that in terms of common law,
ownership
of movable property passes when the owner delivers it to another person, with the
intention
of transferring ownership, and the other takes the thing with the
intention
of acquiring ownership.  As a result, in the absence of a
clear
intention
between parties, it being a state of mind which must
manifest itself from an express agreement between the parties or an agreement

inferred from their conduct, ownership does not pass.
[43]
In
Bank Windhoek Bpk v Rajie en ’n Ander
[50]
transfer of ownership was held
to
require an agreement which clearly manifested a change of
intention
on the part of the transferor.  The court found that where the agreed method of
delivery is ineffective and inappropriate and
absent an agreement in practical
terms as to delivery, the question was whether the remaining evidence was
capable of sustaining
an inference that
constitutum possessorium
had
been orally or tacitly agreed upon.  The court further held that, on the
evidence before it, the
intention
of the transferor had never changed
and that the transferor had throughout held goods in his possession as owner.  The
transfer
of ownership, the court concluded, was not proved.
[44]
The
requirement of intention as the mental element which must be established by
evidence derived from the circumstances of each
case was succinctly articulated
by Van der Westhuizen AJ in
Unimark
[51]
although
there, the case
was concerned with the acquisition of ownership by
accessio.
[52]
 After examining the nature of the thing annexed
and the manner of its annexation Van der Westhuizen AJ concluded that these
factors
were not independent of intention.
[53]
 He held further that:
“It would still seem as if cases are to be
decided on their own facts and that common sense and reasonableness play a
prominent
role.  If someone builds on a piece of land or annexes something to
some immovable property, there is ownership of the annexed
thing or material
involved, as well as conscious human conduct. . . .  The owner of the material
or thing, or the person who annexes
it, is likely to have something in mind,
also with regard to ownership.  The intention of this person cannot be
irrelevant or
of little importance . . . the intention has to be determined and
judged within the context of all the relevant facts. . . .  In
other words, one
of the factors to be taken into account when an intention as to the annexation
of items is formed, or later determined,
is how other people are likely to
interpret the situation on the basis of factual evidence.  An intention which
is totally insulated
from and devoid of reality cannot be recognised and given
effect to in law.”
[54]
[45]
In the circumstances of this case there
is no evidence that Mr van der Merwe had formed an intention to transfer
ownership of the
relevant amount of foreign currency to those members of his
travelling group.  There is also no evidence from which that intention
can be
inferred nor is there evidence that those members considered themselves owners.Â
Indeed, as counsel for a
pplicants emphasised
during oral argument, none of the members of the travelling group could have
taken legal steps compelling the
applicants to hand over the currency to them.
[46]
In my view, Mr van der Merwe at no stage lost
ownership of his money.  He bought the €130 000 with his money and his credit
card
account was debited with that amount.
[55]
Â
Having the currency issued in the names of members of his group was therefore
only nominal.  In view of the importance of the
protection of the right to
ownership in our Constitution and in the circumstances of this case, it would
require more than a nominal
purchase for him to relinquish ownership.  Without
an intention to pass ownership to members of his group and their corresponding

intention to accept ownership, Mr van der Merwe retains ownership of his money.
[47]
Consequently Mr van der Merwe is also the owner
of the €109 135 he purchased in the names of the specified members of his group.Â

In that regard the finding of the full court must also be set aside.
[48]
I have already found that Mr van der Merwe is the
owner of the €20 865 which he bought for himself as his own travel allowance.
[56]
  I have also found that he is the
owner of the €109 135 he bought with his money in the names of specified
members of his group.Â
He has therefore shown ownership of a total of €130 000.Â
That is the amount of Euros found in his possession at the time of
seizure.
Whether the State is entitled to hold the
foreign currency
[49]
Based on Mr van der Merwe’s arrest under
Regulation 3(1)(a),
[57]
the respondents contended before trial court and the full court that the
seizure of the foreign currency had been effected under
Regulation 3(3).
[58]
  Before the
full court, following the finding of the trial court, the respondents contended
that money seized under Regulation
3(3) is automatically forfeited to the NRF
in terms of Regulation 3(5).  On appeal the full court did not determine this
question
and noted that seizure of articles following an arrest under
Regulation 3(1)(a) as had occurred in this case does not necessarily
have to be
in terms of Regulation 3(3) but may also be under section 20(a) of the CPA.  Waglay
J concluded:
“In so far as it may be
necessary to determine whether or not the foreign currency seized from the
first appellant was seized
in terms of reg 3(3) or s 20(a) of the CPA, I
believe, having regard to the fact that the monies were paid over to SARS after
a
notice in terms of s 99 of the Income Tax Act was issued points more to the
foreign currency being seized in terms of s 20 of the
CPA rather than reg 3(3).”
[59]
[50]
In this Court, respondents acknowledged that the
currency had been seized and was being held under section 20 of the CPA.  As
pointed
out earlier, Mr Snyman of SARS, to whom Inspector Taylor handed the
currency on 19 July 2004, signed a SAPS 136 form entitled “indemnity
by
person”, which stated that the money was received as “seized property” as
contemplated by section 31(1)(a) of the CPA.
[51]
Section 31(1)(a) adverts to section 30(c) of the
CPA.  Section 30(c) in turn makes reference to articles seized by a police
officer
under sec
tion 20, or to a police officer to
whom a seized article has been delivered under the provisions of the relevant
chapter.Â
Section 31(1)(a) of the CPA provides:
“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.”
Section
31(1)(a) thus operates where no criminal proceedings are instituted or where
criminal proceedings are instituted but it
appears that the seized article
would not be 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.
[60]
 Section 31(1)(a) therefore provides two grounds upon which an applicant may
claim the return of an article seized under section
20.  The party making an
allegation that the article will not be needed or may be needed for purposes of
a subsequent trial shall
on a balance of probabilities give evidence to sustain
such a claim.
[61]
Â
If the article is not returnable, it shall be retained in identifiable form and
made available at subsequent criminal proceedings.
[62]
[52]
Section 30 of the CPA reads:
“A police official who seizes any article
referred to in section 20 or to whom any such article is under the provisions
of this
Chapter delivered—
(a)        may, if the article is perishable, with due regard to the
interests of the persons concerned, dispose of the article
in such manner as
the circumstances may require; or
(b)        may, if the article is stolen property or property
suspected to be stolen, with the consent of the person from
whom it was seized,
deliver the article to the person from whom, in the opinion of such police
official, such article was stolen,
and shall warn such person to hold such
article available for production at any resultant criminal proceedings, if
required to
do so; or
(c)        shall, if the article is not disposed of or delivered
under the provisions of paragraph (a) or (b), give it a distinctive
identification
mark and retain it in police custody or make such other arrangements with
regard to the custody thereof as the circumstances
may require.”
[53]
Section 20 provides as follows:
“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 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.”
[54]
Section 20 authorises the seizure of “anything”
concerned with the commission or suspected commission of an offence.  In the

circumstances of this case, the contravention of the regulations is an offence
with which the foreign currency “is concerned”
and constitutes, as the full
court held, “anything which is concerned or believed to be concerned in the
commission or suspected
commission of an offence.”
[63]
  There is therefore no legal
impediment to unauthorised foreign currency being seized under section 20 of
the CPA.  I therefore
conclude that the currency was seized under this
provision.
[55]
In circumstances where a criminal trial is
pending, an application for the return of the article may be premature as it
may be required
for purposes of the trial.
[64]
  In this
case, the applicants applied for the return of the foreign currency while the
trial relating to the currency seized under
section 20 is pending.  In view of
the pending trial the State may however be entitled to hold it subject to the
requirements
of section 31(1)(a) of the CPA and/or any other justification.
[65]
[56]
Applicants argued that when the respondents
handed the currency over to SARS in terms of the section 99 notice, in aid of a
purported
settlement of tax obligations they could not have envisaged that they
were to use the currency as evidence or for purposes of a
court order, as
required under section 31(1)(a) of the CPA, suggesting that respondents did not
intend to do so.  Respondents
did not refute this argument.  Besides, there is
merit in applicants’ contention because the inference drawn by applicants is
a
reasonable one.  It was only after the trial court had found that SARS had no
entitlement to the currency that it was returned
to the SAPS.
[66]
  On its return the SAPS
transferred it to the SARB.  Doing so they said, was for reasons of security
having been hesitant to
keep that large amount of currency in their custody.
[57]
Even if an assumption may be drawn in favour of
the respondents, that holding the currency as they did was for purposes of
evidence
when the trial resumes, in view of the trial which has been pending
since 13 July 2004, where there is no information on record
as to progress made
in that regard and there is no justification by respondents for the long delay
in finalising the trial, it
is an assumption which can barely hold.
[58]
The return of an article under section 31(1)(a)
prior to the completion of criminal proceedings may, as indicated earlier, be
prejudicial
to the trial.  For that reason the burden is on applicants who seek
its return to show on a balance of probabilities that the requirements
of
section 31(1)(a) have not been met and the State is therefore not entitled to
hold the article.
[67]
[59]
However, in this case Mr van der Merwe claims
the return of his Euros in terms of the
rei vindicatio
and not under
section 31(1)(a) of the CPA.  Once Mr van der Merwe proves ownership the
burden, unlike in section 31(1)(a), is
on respondents to show why the currency
should not be returned forthwith.  The respondents have not met this burden.  They
have
failed to show that the currency would be used as evidence or for purposes
of a court order as required by section 31(1)(a).  If
they had done so the
burden of proof under the
rei vindicatio
might have been met.  Further,
considering the broader scope of the
rei vindicatio
, they have not shown
any other justification and I do not find any.  Consequently, respondents are
not entitled to hold the currency
pending the trial.
Whether Mr van der Merwe
may legally possess the foreign currency
[60]
Once an article is seized from a person under
section 20 of the CPA and it is not to be used for the purposes required by
section
31(1)(a),
[68]
the article shall be returned to the person from whom it was seized, but only
if she or he can have lawful possession.
[69]
Â
Simply, if the person cannot have lawful possession of the article when
returned, the article shall not revert to her or him.
[70]
  Section 31(1)(a) does not
require ownership to be proved for the article to be returned.  All it requires
is that the person
to whom the article is to be returned (who is usually the
person from whom the article was seized) shall have lawful possession.
[61]
Where the person from whom the article had been
seized cannot possess it lawfully on its return, it shall be placed in the
possession
of another person who can possess it lawfully.  Should this
alternative not be feasible in that no person who may possess the article

lawfully can reasonably be found, then and only then, shall the article be
forfeited to the State.
[71]
[62]
In this matter, seizure of the foreign currency
was based on the contravention of Regulation 3(3).  The contravention itself
was
based on Mr van der Merwe’s possession of an amount of foreign currency for
purposes of travel outside of South Africa at the
time.
[63]
According to the Exchange Control Manual,
[72]
the main purpose of exchange
control in general, is to ensure that there is timeous repatriation of certain
foreign currency obtained
by South African residents into the banking system.  This
is the case whether the currency had been obtained through transactions
of a
current or capital nature.  It is also to prevent the loss of foreign currency
resources through the transfer abroad of real
or financial capital assets which
are held in the country.  Importantly, as the Exchange Control Manual provides,
the purpose
is to control the balance of the country’s foreign exchange
reserves which are mainly utilised for the payment of goods and services

imported into the country and for servicing South Africa’s foreign debt.  These
foreign exchange reserves, it says, are necessary
for any country.  As the
manual states, a lack thereof prevents international trade for effective
economic development.  The
relevant part of the manual reads:
“Exchange control, therefore, constitutes
an effective system of control to these ends by monitoring the movements of
financial
and real assets (money and goods) into and out of South Africa, while at the same time avoiding interference with efficient operation
of the
commercial, industrial and financial systems of the country.”
[73]
[64]
More specifically, the purpose of Regulation
3(3)
[74]
in the context of the general purpose of exchange control is to prohibit people
from leaving the country with unauthorised foreign
currency.  As a result, a
customs official may request any person about to leave the country to declare
and produce currency in
their possession.  It is travelling outside of the
country with unauthorised foreign currency which will therefore be unlawful.
[65]
Once Mr van der Merwe no longer requires the
foreign currency for purposes of travel outside of the country and the currency
is
authorised to be returned to him by an order of this Court, it would be
expedient if not legally required, to return to him the
equivalent of the Rand
value of the €109 135.  To return the Euros may not be practical and legally
permissible under the Regulations.
[75]
Â
If the Rand value of the seized Euros is returned to Mr van der Merwe, the
likelihood of unlawful possession is avoided.
[66]
Besides, under the
rei vindicatio,
if the
actual thing is not returnable to the owner who successfully vindicates it, the
equivalent value shall be returned.
[76]
Â
The equivalent value of the Rand must be determined at the Rand to Euro
exchange rate applicable as at the date of the seizure
of the Euros.  That is
the value of the currency seized from him and that is what must be returned to
him.
Applicants’ alternative argument: infringement of section
25(1)
[67]
The full court decided that there had been no
automatic forfeiture.  However, applicants proceeded to argue that if this
Court
should find that the foreign currency was seized under Regulation 3(5)
and not under section 20 of the CPA, they would contend that
Regulation 3(5)
infringes section 25(1) of the Constitution.  The basis of their argument would
be that because the regulation
permits automatic forfeiture following seizure
under Regulation 3(5),
[77]
it results
in arbitrary deprivation of property in violation of section 25(1) of the
Constitution.
[68]
I have found that the seizure of the currency
was effected under section 20 of the CPA.  I have also found that the State
holds
the currency under section 20.  Following this finding, I have further
held that the disposal of the foreign currency must be determined,
not under
Regulation 3(5) but in terms of the provisions of the CPA, in particular
section 31(1)(a) which regulates the disposal
of articles seized under section
20 of the CPA.
[78]
  Regulation
3(5) for this reason has no relevance for the disposal of the currency.  Applicants’
alternative claim based on
the unconstitutionality of Regulation 3(5) has
therefore become unnecessary to decide.  I refrain from doing so.
[69]
Next to be determined is whether respondents as
organs of State, by failing to provide Mr van der Merwe with the necessary
information
and certainty as regards the legal basis for the seizure and
holding of the foreign currency, as described earlier in this judgment,
[79]
acted in conflict with their
public service duties under the Constitution, in particular sections 1 and 195.
Whether respondents have acted contrary to sections 1 and
195 of the Constitution
[70]
Although the seizure of the foreign currency was
lawful and was a justified basis for Mr van der Merwe’s arrest, the conduct of

the respondents, described earlier in this judgment,
[80]
created circumstances of grave
legal uncertainty with regard to the seizure of a large amount of his money
which compelled Mr van
der Merwe to seek answers from the courts.  Further,
respondents’ constant vacillation with regard to the legal basis for the

seizure and holding of a substantial amount of foreign currency, made it
difficult for applicants to formulate their case before
the courts with the
necessary precision.
[71]
Section 1 of the Constitution, read with section
195, indeed sets high standards of professional public service as applicants
submit.Â
It requires ethical, open and accountable conduct towards the public
by all organs of State.
[81]
Â
These are basic values for achieving a public service envisaged by our Constitution,
which requires the State to lead by example.
[82]
  In this
case, the State has failed to do so.
[72]
The remissness on the part of the respondents should
not be countenanced.  Correctly so, none of the respondents attempted to defend

it.  In this constitutional era, where the Constitution envisages a public
administration which is efficient, equitable, ethical,
caring, accountable and respectful
of fundamental rights, the execution of public power is subject to
constitutional values.
[83]
  Section
195 reinforces these constitutional ideals.  It contemplates a public service
in the broader context of transformation
as envisaged in the Constitution and
aims to reverse the disregard, disdain and indignity with which the public in
general had
been treated by administrators in the past.
[84]
Â
Section 195 envisions that a public service reminiscent of that era has no
place in our constitutional democracy.  The remissness
on the part of the
respondents is not conducive to the current efforts of public service
transformation.
[85]
 It must certainly be discouraged.  In that context the conduct of the respondents
is indeed contrary to sections 1 and 195 of
the Constitution, as the applicants
submit.
[86]
Â
Although the applicants submitted that the respondents’ conduct was inconsistent
with sections 1 and 195 of the Constitution,
they did not claim that it
constitutes a basis for a self-standing cause of action.  I will therefore not
determine that question.
[73]
In my view, despite the difficulties created by
the respondents, Mr van der Merwe has been successful in proving his ownership
of
the foreign currency.  I would accordingly order that the application for
leave to appeal be granted and costs should follow the
result. Â
In the result I would set aside the order of
the
full court in
the Cape High Court and replace it with
the following order:
(a)       the respondents return to Mr van der
Merwe forthwith the foreign currency in the amount of €130 000 seized from
him
following his arrest on 13 July 2004;
(b)       the foreign currency be converted to
the equivalent of South African Rands according to the Rand to Euro exchange

rate at 13 July 2004;
(c)       the respondents be ordered jointly and
severally to pay the applicants’ costs of suit in the application for leave
to
appeal to this Court;
(d)       the respondents be ordered jointly and
severally to pay applicants’ costs in the trial court; and
(e)       the respondents pay the applicants’
costs jointly and severally in the application for leave to appeal to the full

court and the application for special leave to appeal to the Supreme Court of
Appeal.
SACHS J:
[74]
I agree with the judgment of Mokgoro J in part,
and with the majority judgment in part.
[75]
The reality of the situation, in my view, is
that Mr van der Merwe used his own funds to get all the foreign exchange
allocations.Â
He bumped up the amounts considerably by getting foreign currency
based on allocations that could legitimately be attributed to
other members of
the group with whom he proposed travelling.  The evidence points to the fact
that he always intended to control
the funds, dishing them out as and when he
pleased.  Yet he cannot have his cake and eat it.  He purported to carry the foreign

exchange on behalf of the others, and could not lawfully backtrack on that.Â
Accordingly, I agree with the majority that he cannot
get these extra
allocations back.
[76]
As far as his own quota is concerned, however, I
agree with O’Regan J that the issue of the date to which the
rei vindicatio
action would apply where
section 20
of the
Criminal Procedure Act
href="#_ftn87" name="_ftnref87" title
="">
[1]
(the CPA) is involved, was not
well-ventilated on the papers.  It was not considered in the High Court.  Nor
was it argued before
us.  The onus was on the defendant, in this case the
State, to make its reliance on
section 20
of the CPA clear in its pleadings.Â
If it had done so, the applicant would have been in a position to consider
amending his claim
to bring it under
section 31(1)(a)
of the CPA.
[2]
[77]
In these circumstances I do not think it
appropriate for this Court to subject the matter to a procedural re-run.  What
we know
for certain is that the money was seized but not forfeited.  Years have
passed, and there is nothing before us to suggest that
the money is needed for
purposes of the prosecution.  In my view, Mr Van der Merwe should get his own
quota back.  To this extent
I agree with the judgment of Mokgoro J, and support
the order she would make.
O’REGAN J:
[78]
I have had the opportunity of reading the
judgments prepared in this matter by Mokgoro J, Moseneke DCJ and Nkabinde J, as
well as
Sachs J.  I am unable to agree
with the
orders proposed in all these judgments as, in my view the application for leave
to appeal should be dismissed because it
is not in the interests of justice to
hear it.
[79]
The applicants seek to vindicate an amount of
€130 000 in foreign bank notes (the currency) from the respondents.  The
currency
was seized from the first applicant at the Cape Town International Airport on 13 July 2004.  In addition to the €130 000, an amount
of US$21 249 was
also seized.  The applicants have abandoned their claim for the US Dollars and that claim needs no further consideration.
[80]
The first issue is whether the case raises a
constitutional matter.  The case concerns a claim by the applicants for the
return
of the currency seized by the state.  Although the applicants no longer
dispute the lawfulness of the original seizure, they assert
that as owners of
the currency they are now entitled to its return.  For the purposes of this
question, I shall assume, but not
finally decide, that the applicants have
established that they are owners of at least a portion of the currency.  To the
extent
that the applicants have established ownership of all or a portion of
the currency, they have established that they have been deprived
of the
currency by the state.  The question of whether that deprivation is arbitrary
or not raises a constitutional issue.  The
next question that arises is whether
it is in the interests of justice for this Court to hear the appeal.
[81]
In written argument counsel for the applicants
point to three reasons why they assert that it is in the interests of justice
for
this Court to grant the application for leave to appeal.  The first relates
to the differing interpretations of the exchange control
regulations
[1]
adopted by the Pretoria High Court in
Action Engineering and Fencing (Pty) Ltd v Moyses NO and Others
[2]
and the full court of the Cape High Court in this case.
[3]
  The second relates to the
conduct of the respondents and, in particular, the conflicting arguments that
the respondents have
raised in opposing the relief sought by the applicants.Â
The applicants argue that this is in conflict with the respondents’

constitutional duties in terms of
section 195
[4]
and
section 1
[5]
of the Constitution.  The third is the applicants’ prospects of success.
[82]
I turn now to consider the first reason.  Throughout
the litigation, there has been some doubt as to the legal basis upon which
the
currency was seized by the police.  It is clear that the first applicant was
arrested on the ground that he was suspected
to have committed an offence in
terms of
regulation 3(1)(a)
of the exchange control regulations.
[6]
  At first instance, Allie J
held that the currency was seized in terms of
regulation 3(3)
of the exchange
control regulations
[7]
and then automatically forfeited in terms of
regulation 3(5)
of the same regulations.
[8]
  She accordingly held that the
applicants were not entitled to the return of the currency.
[83]
The full court, however, disagreed with Allie J
that
regulation 3(5)
permits an automatic forfeiture of currency seized in
terms of
regulation 3(5
).  It therefore disagreed with the judgment of the
Pretoria High Court in
Action Engineering and Fencing
[9]
as to whether
forfeiture of currency follows automatically upon seizure.  The full court also
disagreed with Allie J that where
a person is arrested in terms of
regulation
3(1)(a)
, any seizure of currency which accompanies the arrest must take place
in terms of
regulation 3(3).Â
The full court held that a seizure accompanying
such an arrest could take place in terms of either
regulation 3(3)
or section
20 of the Criminal Procedure Act 51 of 1977 (the Criminal Procedure Act).  The
full court did not finally need to decide
the question, however, as it held
that the applicants had not established ownership of the currency and the
vindicatory relief
sought by the applicants was refused on that basis.
[84]
It is clear therefore that there is a difference
of opinion between the full court of the Cape High Court and the Pretoria High
Court as to the proper interpretation and effect of regulation 3(5) of the
exchange control regulations.  The proper interpretation
of regulation 3(5)
does raise a constitutional matter.  Indeed, its interpretation was raised in
the case of
Armbruster and Another v Minister of Finance and Others,
[10]
a case heard on the
same day as the present case, in which judgment is to be delivered shortly.Â
However, it became clear during
oral argument in the present case, that neither
party was contending that the currency was seized in terms of regulation 3(3)
of
the exchange control regulations.  Both parties accepted that the seizure
took place in terms of
section 20
of the
Criminal Procedure Act.
[85]
Accordingly, given the acceptance by both
parties that the exchange control regulations are not in issue in this case,
the difference
of opinion between the full court of the Cape High Court and the Pretoria High Court in relation to the proper interpretation of
those
regulations no longer arises for consideration in this case.  It is a matter which
arises for decision in
Armbruster.
  It accordingly cannot render it in
the interests of justice for the Court to consider this application for leave
to appeal.
[86]
The second reason advanced by the applicants’
counsel is based on section 195 of the Constitution which sets out the basic
values
and principles that govern public administration.  The applicants argue
that the conduct of the respondents, first in transferring
the currency to the
Commissioner of the South African Revenue Service (SARS) on 19 July 2004, without
informing the applicants
thereof; and secondly, in the transfer of the currency
by SARS to the Reserve Bank on 1 March 2005, is disquieting.  They argue
that
it showed an intention by the respondents to hold onto the funds “at all
costs”.
[87]
It is clear that the respondents have been
uncertain as to the legal basis upon which they continue to hold the currency.Â
Of equal
importance, however, is the fact that it is common cause between the
parties that the currency was lawfully seized by the respondents
on 13 July 2004; and that it is undisputed that when Mr van der Merwe applied for foreign
currency in July 2004, he had already
exceeded his foreign currency limit for
2004.
[88]
There can be no doubt that section 195 of the
Constitution is a provision of profound importance in our constitutional
order.Â
Public administration must be ethical, accountable and fair.  What is
less clear is whether section 195 gives rise to an independent
cause of action
or only informs other causes of action.  Although during the litigation the
respondents were less than clear as
to the basis upon which they continued to
hold the foreign currency, their attitude at all times was that Mr van der
Merwe was
arrested at the airport on grounds of having committed an offence in
terms of the exchange control regulations and that the money
was lawfully
seized on that basis.  Moreover, as has been set out above, Mr van der Merwe
does not dispute in these proceedings
that when he applied for the currency, he
had already exhausted his foreign exchange allowance for the year.  In my view,
whatever
cause of action may arise from section 195, it cannot be said that in
the circumstances of this case, section 195 would independently
result in an
order by this Court requiring the respondents to return the currency to Mr van
der Merwe which appears to be the only
relief, save for a special costs order,
which the applicants seek in respect of section 195.  In the circumstances,
therefore,
I am not persuaded that this is an appropriate case to explore the
full implications of section 195.  Accordingly, it contributes
no weight to the
determination of whether it is in the interests of justice that the application
for leave to appeal be granted.
[89]
 The third factor to which the applicants refer,
in seeking to establish that it is in the interests of justice to grant the
application
for leave to appeal, is their prospects of success on appeal.  As
it happens, the majority of the Court has dismissed the appeal,
but in my view,
even if that result is left out of account, there are other considerations
which weigh against this Court granting
leave to appeal.
[90]
The application was launched as a matter of
urgency in the Cape High Court on the basis of the
mandament van spolie.
Â
The applicants sought the return of the currency on the basis that the currency
in Mr van der Merwe’s possession was within
his lawful allowance, and that his
arrest and the seizure of the currency were unlawful.  The applicants abandoned
this argument
when the matter was heard by the Cape High Court.  There they
accepted that the seizure had been lawful.  Instead they based their
claim for
the return of the currency on the
rei vindicatio
.  It should be recorded
at this stage that the applicants chose not to lodge replying affidavits in
response to the answering
affidavits lodged by the respondents.
[91]
As set out above,
[11]
Allie J dismissed the
applicants’ claim on the basis that the currency had been seized and automatically
forfeited to the state
in terms of the exchange control regulations.  Upon
appeal to the full court, it was held that the applicants had not established

that they were owners of the currency and the court dismissed the application.
[92]
The key issues that arise for determination by
this Court, should it grant leave to appeal, are whether the applicants have
established
that they are owners of the currency; and if so, whether the
respondents are entitled to continue to hold the currency despite the

applicants’ ownership.
[93]
Moseneke DCJ and Nkabinde J conclude that the
applicants have established that Mr van der Merwe is the owner of €20 865 of
the
foreign currency.
[12]
Â
The result of their conclusion is that they have to consider whether the
respondents are entitled to hold that portion of the
currency, despite the fact
that Mr van der Merwe has established that he owns it.
[94]
In their answering affidavits in the High Court,
the respondents alleged that the currency was being held by SARS pursuant to a
notice issued in terms of section 99 of the Income Tax Act 58 of 1962.
[13]
  However, as Allie J held in
the High Court, the respondents did not establish that the section 99 notice
was properly issued,
there being no evidence that either the first applicant or
the other corporation in respect of whom the notice was issued had any

outstanding tax liabilities.  In the circumstances, Allie J correctly held that
section 99 could not constitute a basis for defeating
the claims of the owner
of the currency.  She held instead that the currency had been forfeited to the state
in terms of the exchange
control regulations, as has been set out above.
[95]
In this Court, the respondents emphasised that
the currency had not yet been forfeited to the state.  For the respondents’
right
to continue to hold the currency, they relied on the fact that a criminal
trial was pending against the applicants and they argued
that once that trial
is concluded the fate of the currency will be determined.
[96]
The question whether the respondents are
entitled to continue to hold the currency thus arises for consideration for the
first time
in this Court.  It was not dealt with by either the full court or
Allie J.  The full court determined the case on the basis that
the applicants
had not established ownership of the property, and Allie J determined the case
on the exchange control regulations.Â
The question raises complex questions of law,
many of which were not aired in either oral or written argument.  Moseneke DCJ
and
Nkabinde J find that the relevant date for determining whether the
respondents are legally entitled to continue to hold the currency
is 15 July 2004, the date that the application was launched.  They conclude that on that date
there is no evidence to suggest that
the currency would not be needed as
evidence in the criminal proceedings to be launched against Mr van der Merwe
and hold accordingly
that because the respondents were entitled to continue to
hold the currency on that date, the vindicatory action should fail now.
[97]
Before turning to the legal rule which underlies
this conclusion, it should perhaps be mentioned in passing that the absence of
any evidence to suggest that the respondents did not need the currency for the
purposes of the pending criminal trial, may well
not be sufficient in itself to
discharge the onus borne by the respondents to establish an entitlement to hold
the currency, especially
in the light of the events of 19 July 2004.  On that
date, the South African Police Service signed a notice in terms of
section
31(1)(a)
of the
Criminal Procedure Act
title="">
lang=EN-ZA style='font-size:13.0pt;font-family:"Times New Roman"'>[14
]
which stated that the currency was not required for the pending criminal
proceedings.  This complex factual issue is one which,
in my view, we should
avoid deciding as it was not adequately canvassed on the record or in argument.
[98]
The legal principle upon which the conclusion is
based is that a defence to the vindicatory action must be established at the date

the vindicatory proceedings are launched, and that it will constitute a defence
to vindication even if the defence no longer exists
at the time the matter is
adjudicated.  Two cases are cited as authority for this principle. The first,
Vulcan
Rubber Works (Pty) Ltd v South African Railways and Harbours
,
[15]
concerned a
vindicatory action in which the court held that the plaintiff bore the onus of
establishing that the defendant had
possessed the relevant property at the time
the proceedings were instituted. In that case, the Appellate Division held that
the
plaintiff’s pleadings did not allege that the defendant was in possession
of the relevant property at the time proceedings were
launched and accordingly
held the declaration to be excipiable.
[16]
Â
This question relates to what a plaintiff in a vindicatory action must prove in
order to succeed, not to the question as to what
defences may be raised to a
vindicatory action once the plaintiff has established all the requirements of
the cause of action.Â
It is this latter question with which we are now
concerned.
[99]
The second case referred to by Moseneke DCJ and
Nkabinde J is
Mehlape v Minister of Safety and Security
[17]
which concerned the question whether the provisions of
section 17(2)
of the
South African Police Service Rationalisation Proclamation R5 of 1995 applied to
a vindicatory action.Â
Section 17
provided that one month’s written notice had
to be given to a defendant before legal proceedings were instituted against the
state in respect of any alleged act performed in terms of this proclamation.
[18]
  No notice had been given in
the case in which the applicant sought the return of a motor vehicle.  It was
in these circumstances
that the court held that the
rei vindicatio
is a
remedy instituted “in respect of a factual situation pertaining at the time of
the institution of the legal proceedings.”
[19]
Â
The court accordingly held that the proceedings had not been instituted in
respect of an act performed in terms of the proclamation
and that in the result
section 17(2)
did not apply to the proceedings.
[20]
  This case too does not
sharply deal with the question as to what defences may be raised in vindicatory
proceedings once the plaintiff
has established all the elements of the
rei
vindicatio
.
[100]
I should make clear that I do not conclude that the legal principle
relied upon by the majority is incorrect.  My concern is that
it is not a legal
issue that ordinarily should be determined at first instance by this Court
without careful and thorough argument.Â
It relates to an important remedy of
the common law, which should ordinarily be determined first by the Supreme
Court of Appeal.
[21]
Â
There are, too, other legal issues which might well be relevant to the case at
hand upon which we have not had the benefit of
argument.  One is the maxim
ex
turpi causa, non oritur actio.
[22]
Â
This maxim may have application in the present case given that first applicant
appears on the papers before us prima facie to
be in breach of exchange control
regulations.  Is he in these circumstances permitted to institute vindicatory
proceedings to
recover the seized currency?
[101]
A further important and difficult question, not raised in argument,
is whether the scheme of chapter 2 of the
Criminal Procedure Act, and
in
particular
sections 30
to
36
of that Act which carefully provide for the
disposal of articles which have been lawfully seized in terms of section 20 of
the
Act, contemplate that a vindicatory action outside of the statutory scheme
may be launched for the return of such articles.  This
issue was also not
raised in argument before us.
[102]
In my view, these complex and difficult legal issues upon which
neither we, nor the courts below, have had the benefit of argument
indicate
that it is not in the interests of justice for this Court to entertain this
appeal.  One consideration only militates
against that conclusion – whether,
were this Court to refuse to grant leave to appeal, the applicants would be
deprived of the
ability to seek to recover the currency.Â
Section 31(1)(a)
of
the
Criminal Procedure Act
name="_ftnref111" title="">
class=MsoFootnoteReference>
[23
]
requires that property seized
in terms of
section 20
of that Act be returned to an owner where no criminal
proceedings are instituted or, if proceedings have been instituted, where
the
seized article is not required as evidence in the trial, if the owner may lawfully
possess it.  It is clear therefore that
if the applicants wish to recover the
currency, and if they can show that the requirements of section 31(1) are met,
they may launch
proceedings in the appropriate court in terms of
section
31(1)(a)
of the
Criminal Procedure Act and
would not be non-suited by an order
refusing leave to appeal in these proceedings.
[103]
Accordingly, I would refuse to grant leave to appeal.  In summary, I
would emphasise that it is undesirable for this Court to decide
important and complex
issues of the common law as a court of first and final instance, and especially
in circumstances where the
issues have not been properly ventilated on the
pleadings or in argument.  The litigation in this case has been unsatisfactory

from the start – it was commenced urgently as spoliation proceedings.  Once the
respondents had lodged their affidavits which
made it plain that the seizure of
the currency had been lawful, the applicants proceeded on the basis of a
vindicatory action,
without lodging any replying affidavits.  The factual
material before the Court is therefore incomplete and the legal submissions

failed to traverse many of the difficult issues which, in my view, needed
consideration.  These circumstances, coupled with the
fact that refusing leave
to appeal would not finally non-suit the applicants, render it inappropriate
for us to grant leave to
appeal.  I would therefore, for these reasons, refuse
leave to appeal.
[104]
One last issue needs to be considered and that is the issue of
costs.  As indicated above, the litigation has been beset by difficulties
from
the start.  The fault for this does not lie with only one side.  In my view, it
would be appropriate in these circumstances
to make no order as to costs.
Van Heerden AJ concurs in the judgment of O’Regan J
MOSENEKE DCJ and NKABINDE J:
Introduction
[105]
We have had the opportunity to read the judgment
of Mokgoro J.  We are content to concur with her findings and conclusions
regarding
the first applicant’s ownership of €20 865, but we are unable to
concur with the findings and conclusions on whether the applicants
have
established ownership of €109 135 and whether the respondents are entitled to
hold the foreign currency.
[106]
The facts are dealt with by Mokgoro J.  It
suffices to set out the facts sufficiently pertinent to the conclusions we
reach regarding
the ownership of the Euros seized from the first applicant and
whether the respondents are entitled to continue holding them.Â
Mokgoro J holds
that a dispute about the legal basis for the
State to
seize and hold foreign currency found in possession of the first applicant
concerns arbitrary deprivation of property and
therefore raises a
constitutional matter.  While that approach is indeed attractive, it may have
far-ranging implications which
we are not called to decide.  For that reason,
we prefer not to express an opinion on the question whether this case raises a
constitutional matter but will assume, without deciding, that the matter does
raise a constitutional issue.
Background
[107]
On 13 July 2004 the first applicant was, upon
leaving the country on an international flight to the United Kingdom, arrested
at
the Cape Town International Airport and allegedly charged for the
contravention of the provisions of
Regulation 3(1)(a)
[1]
of the Exchange Control
Regulations
[2]
in that he possessed US $21 249 and €130 000 without the necessary
authorisation.  All of the foreign currency was seized by
the South African
Police Service
(SAPS).  The foreign currency which is the subject matter
of these proceedings amounted to €130 000.  This amount was purchased
on 9 July 2004 by the first applicant in preparation for the trip to Las Palma out of funds
standing to the credit of his bank account.
[3]
Â
Of that amount, €20 865
[4]
was purchased by the first applicant for himself through his Nedbank credit
card.
[108]
Subsequent to the seizure the applicants
launched
urgent motion proceedings in the Cape High Court seeking to spoliate the
foreign currency seized by the members of the
SAPS and an order granting the
first applicant permission to travel overseas with that currency.
[5]
  The first applicant claimed
that all the money seized belonged to him and the second applicant.  It however
emerged that the
first applicant had held the US $21 249
[6]
on behalf of a friend, Mr
Allison.  The order was sought on the basis that the seized foreign currency
was below the total allowable
amount that the first applicant was legally
entitled to possess and take out of the country.
[7]
  The claims were denied by
the respondents who stated that the first applicant’s own version that he was
carrying the foreign
currency for other persons rendered him liable to criminal
prosecution in terms of Regulation 3(1)(a).
[8]
[109]
At the hearing the applicants sought to
vindicate their rights and sought the return of the foreign currency.
[9]
  Counsel for the respondents
argued that the Court would lend itself to an illegality if it were to order
the return of the foreign
currency.  To counter that argument, it was argued
for the applicants that the foreign currency should be deposited into the
second
applicant’s bank account.
[10]
Â
The High Court (per Allie J) dismissed the application with costs.  The
applicants lodged an application for leave to appeal
against the judgment of
Allie J on 2 February 2005.  Leave to appeal to the full court of the Cape High Court was granted on 12
April 2005.
[110]
Before the full court the applicants maintained
that they owned the €130 000 and were thus entitled to its return.  In the
alternative,
they claimed that the first applicant was, at the very least,
entitled to the €20 865.  The respondents argued that the applicants
could not
claim ownership of the €130 000.  The full court (per Waglay J), in the
judgment delivered on 24 February 2006,
[11]
found that the foreign currency had not been forfeited.  It held that even
though the money utilised to purchase the foreign currency
had been deposited
into the first applicant’s bank account – that did not make him its owner.  The
full court held that ownership
had not been established and that “the seizure
was neither wrongful nor unlawful.”
[12]
Â
The applicants unsuccessfully petitioned the Supreme Court of Appeal.
[13]
In this
Court
[111]
In this Court, although the applicants claimed
that they owned the Euros and the US Dollars seized, they sought to vindicate
their
rights which they allege had been violated by the respondents and claimed
the total amount of the Euros.  The first applicant had,
at all material times,
held himself out to having held the foreign currency on behalf of the members
of the travelling group.Â
He explained to the members of the SAPS that the
currency was “destined for a group of persons”.  He stated that of the €130

000, an amount of R159 971, 95 was his personal foreign exchange travel
allowance purchased in his name.
[112]
Counsel for the applicants contended that the
€130 000 belonged to the applicants because: first, it was purchased with funds
standing to the credit of the first applicant’s Nedbank account;
[14]
second, the first applicant
succeeded in establishing ownership of the foreign currency; and third, the
first applicant did not
relinquish ownership of the €130 000 simply because he
used the exchange control allowances available to each individual member
of the
family and others in the group.  The court a quo
,
counsel contended,
failed to deal with the alternative argument that at the very least the first
applicant was the owner of the
€20 865 which he had purchased in his own name
and represented his personal foreign exchange allowance.
[15]
  As will appear later, the
failure by the full court to consider the first applicant’s alternative claim
makes it necessary
for us to consider it.
Cause of
action
[113]
When litigants choose to rely on ownership to
recover possession of property, they are bound by that choice.  In that event,
the
incidence of the onus becomes important.
[114]
At common law, applicants dispossessed of
property may seek to recover it with the
rei vindicatio
.
[16]
  In that event the cause of
action is premised on ownership coupled with the fact that possession is held
by the respondent.
[17]
  There are three requirements
necessary for success in vindication action proceedings: (i) ownership or
co-ownership of the thing;
(ii) the thing must still be in existence and be
clearly identifiable;
[18]
and (iii) that
the
defendant has possession or detention of the thing at the moment the action is
instituted.
[19]
Â
From these requirements it is clear that proof of ownership proper is required
of the person instituting the action.
[20]
Â
The applicants needed therefore to do no more than allege and prove that they
are the owners and that the respondents are holding
the property concerned.
[21]
[115]
The first applicant eventually elected to base his
cause of action on the civil remedy of the
rei vindicatio
and not
through the mechanism of utilising section 31(1)(a)
[22]
of the
Criminal Procedure Act
(CPA
)
[23]
as was the case in the matter of
Booi v Minister of Safety and
Security and Another
.
[24]
Â
The choice of action and the discharge of the burden of proof are fundamental
to the outcome and the extent to which the applicants
can obtain the relief
they seek.  Although this matter involves seizure of foreign currency with the
intent of instituting criminal
proceedings, the application before this Court
is civil in nature.
[116]
It needs to be said that the
rei vindicatio
can raise difficulties when dealing with the return of money, unless it
concerns individual and identifiable currency with some
form of intrinsic value.Â
It has been observed that the lack of correlation between the practically
valueless paper and the value
it represents renders difficult the vindication
of paper currency.
[25]
Â
Difficulties in respect of the application of the
rei vindicatio
to
money have been recognised in Roman law.  Of relevance is the concept
commixtio
which means that the money is mixed with other money, so that it cannot be
separated.  In that event the money will belong to
the person who receives it.
[26]
  It was contended on behalf of
the applicants in oral argument that the foreign currency was mixed with other
money so much that
the original currency could no longer be identified.
Proof of
ownership
[117]
Proving ownership of property requires both the
physical and mental elements of ownership to be established.  This entails a
question
of both fact and law.  As indicated above, the incidence of the onus
is important.  It is consequently necessary to consider what
the first
applicant himself has set out and what the evidence reveals about his
ownership.
[118]
In the founding affidavit the first applicant
alleged that the foreign currency belonged to the second applicant and him, and
went
on to state that:
“. . . I who was the only adult male to
accompany the group and who was responsible for the provision of all the
financial support
of the whole group, as well as the crew of the ship,
decided that it would be safer for me to take the foreign currency with me as
it would be risky to place such large amount in their
possession.  It was
therefore decided that I would take all the foreign currency except for 300
Euros on behalf of all the members
of our group when I depart on the 13th of
July 2004.
  The other members of the group as a result left without any
currency except for 300 Euros . . . .
. . . .
[T]he customs official enquired as to why I
was carrying such an unusually large amount of currency.  I . . . explained
that, due
to my delay and the balance of my party having departed the Sunday
two days earlier,
I was carrying the entire group’s currency.
  He
advised me that . . .
I would be compelled to depart only with my individual
permissible allowance of R160 000.00
. . . .”  (Emphasis added.)
Ownership
of the €20 865
[119]
It is common cause that the amount of €20 865
was purchased by the first applicant for himself through his Nedbank credit
card.Â
The customer receipt provided by Nedbank shows that that amount was for
the first applicant’s travel allowance.  That amount
is in accord with the
permissible travel allowance for an adult per calendar year.
[27]
  We therefore agree with
Mokgoro J’s finding that the first applicant had established the ownership of
the €20 865.  It follows
that the full court erred in finding that ownership of
this money was not established.
Ownership
of the €109 135
[120]
However, the difficulty arises with regard to
the ownership of the balance of the €109 135.  Nedbank effectively delivered
€130
000 to the first applicant on 9 July 2004.  The first applicant deposed to the founding affidavit on 15 July 2004 and made statements
referred to in
paragraph 89 above, in effect disavowing ownership of the balance of the
foreign currency.
[121]
The first applicant argues that he can hardly be
said to have relinquished ownership of the currency by virtue of his having
utilised
the exchange control allowances available to each individual member of
the family and others in the group.  The first applicant
not only used up the
exchange control allowance available to individual members of the group but,
evident from his deposition,
also disavowed ownership of the balance of €109
135.  Documentary evidence in the form of customer receipts
[28]
provided by Nedbank is
clearly in accord with the first applicant’s averments.  We read the statements
in no other way than
as a clear and unequivocal admission that the first
applicant did not, save for his “individual permissible allowance of R160

000.00”, own the balance of €109 135.  The first applicant, in his statements
to the members of the SAPS
and on affidavit, seems to have been of the
same intention.
[122]
If the statements had intended to convey that
the first applicant owned large sums of foreign currency, that is the €109 135,
and merely utilised the exchange control allowance available to each member of
the party, he could and should have told the customs
official that in no
uncertain terms.  Indeed, if that is what was intended one wonders why he did
not say so when asked why he
possessed such an “unusually large amount of
currency”.  The admission rendered it unnecessary for the respondents to
attempt
to disprove the admitted facts.  It is therefore improper to attempt to
contradict the first applicant’s statements by referring
to matters not
foreshadowed or contradicting the averments in the founding affidavit.  The
applicants must stand or fall by the
factual averments in their affidavits
which are intended to support the cause of action on which the relief sought is
based.
[123]
It was also argued on behalf of the applicants
that the Euros belonged to the first applicant because the ownership of the
foreign
currency changed when the currency was purchased with funds standing to
the credit of his Nedbank account and taken into his possession.Â
The fact that
the Euros were purchased with the funds standing to the credit of the first
applicant’s account and that he was
in possession thereof does not entail that
he is the owner of the currency.  It implies only that he had a personal right
against
the bank for payment of an amount of money.  The original owner of the
currency was Nedbank and the relevant question is to whom
Nedbank transferred
the currency, not who funded the purchase of the currency.  The first
applicant, on his own showing, was a
mere custodian of the balance of the
Euros, not the owner thereof.
[124]
The remarks by Lord de Villiers in
Vosloo v
Myburgh
,
[29]
quoted with approval by Van der Heever JA in
Gleneagles Farm Dairy v
Schoombee
[30]
are apposite in this case.  He said:
“It would be a dangerous precedent if any
court were to hold now that a person, who has allowed another to appear as the
ostensible
owner, should, upon that person getting into difficulties, be
allowed to say: ‘Although he appeared to be the owner, the property
is really
mine’.”
[31]
[125]
A presumption of law that goods belong to anyone
in whose possession they are found is proper.  However, the presumption should

be considered in view of the circumstances of each particular case because it
can be upset by evidence.
[32]
Â
As was also pointed out in
Commissioner of Customs and Excise v Randles,
Brothers & Hudson, Ltd,
[33]
“the legal transaction
preceding the
traditio
may be evidence of an intention to pass and
acquire ownership.”
[34]
Â
In this case the legal transaction that preceded the delivery is evidenced by
the customer receipts provided by Nedbank which
show that the foreign currency
was intended for the person identified in each of the receipts.  The receipts
show the amounts
in Euros and Rands for each member of the party, as well as
their denominations and quantities.
[126]
Nedbank was appointed and authorised by the
Treasury
[35]
to buy and sell foreign currency only under the conditions and within the
limits prescribed.  Given the conduct of the transacting
parties, namely the
first applicant and Nedbank, and the circumstances under which the invoices
were issued and of the case as
a whole, it cannot, on the evidence, be said
that Nedbank, as transferor of the foreign currency, intended to transfer the
ownership
[36]
of the currency to the first applicant, the transferee, upon its delivery.
[37]
  It would make no sense for
the bank to provide customer receipts in the names of other persons in the
first place instead of
issuing one invoice in the name of the first applicant.Â
It is beyond doubt, regard being had to the prescribed travel allowance
limits,
that Nedbank would have declined to sell the large amounts of foreign currency
to the first applicant if it had been aware
that the first applicant purchased
the foreign currency for himself but did so in order to deliberately evade the
law.
[127]
Even on the assumption that ownership passed to
the first applicant when Nedbank handed the money to him on 9 July 2004, no explanation
is advanced for the first applicant’s subsequent contradictory
statements disavowing ownership of the Euros he held on behalf
of his
travelling party.
[128]
Regarding the argument of
commixtio
, it
was essential, in our view, for the applicants to have alleged the admixture
and that separation would have been impractical,
or to have alleged at least
some facts having the effect of making that legal conclusion applicable.
[38]
[129]
The founding affidavits fall short of
establishing the mixing of the foreign currency.  They do not explain how the
currency was
arranged in the bag.  It is possible that the money was in a
single bundle, but it is equally plausible that it was in separate
bundles and
labelled with the respective owners’ names.  There are a number of other
possibilities.  There is no allegation
either way and the
commixtio
argument cannot succeed.  The argument regarding admixture would, in any event,
be at odds with the explanation the first applicant
advanced at various stages
in an effort to exculpate himself when asked to explain the large amounts of
foreign currency in his
possession.  It would also be at variance with the
detailed particularity in the customer receipts provided by the bank in respect

of the foreign currency for each member of the travelling group.  It cannot
therefore be said that the foreign currency was mixed
and unidentifiable and
could not be separated for practical purposes.  Besides, the point was not
raised in the courts below.Â
The respondents had also not been afforded an
opportunity to respond to that argument.
[130]
On the application of the rule in
Plascon-Evans
Paints v Van Riebeeck Paints
,
[39]
the applicants cannot be said to have established transfer of ownership to the
first applicant and
commixtio
of the Euros.
[131]
After a careful consideration of the evidence we
conclude that the applicants have not established ownership of the €109 135.Â

As Voet
[40]
points out—
“[T]he proof of ownership lies before
everything on the plaintiff.  If he has been unable to fulfil it the possessor
is to be
absolved . . . .”
[41]
Â
(Footnote omitted.)
Accordingly,
the respondents need not establish the right to retain possession.
[42]
  It follows that it is
inappropriate to sanction restoration of the €109 135 to the applicants.  The
question however remains
whether the respondents are entitled to continue
holding the foreign currency (€20 865) belonging to the first applicant.
Should the
respondents continue holding the €20 865?
[132]
Once ownership is established, the respondents
must prove the basis on which they claim to retain possession of that amount as
against
the first applicant, the owner.
[43]
Â
The respondents cannot in law withhold the foreign currency unless they have a
right of retention.
[133]
In this Court the parties made common cause and
we assume in favour of the applicants that the seizure was effected in terms of
section 20
of the CPA.
[44]
Â
There is no legal impediment to seize unauthorised foreign currency under that
section.  However, lawful seizure under
section 20
does not mean that continued
possession of the currency will forever be lawful.Â
Section 31(1)(a)
[45]
makes it plain that the
currency can only be possessed if criminal proceedings are instituted and the
currency is required in those
proceedings.  If the currency is not required,
section 31(1)(a)
states that it “shall” be returned to a person who may
lawfully possess it.
[134]
Mokgoro J seems to rely on this provision for the
conclusion that the currency be returned to the applicant.  This however fails

to take account of the fact that the success of the
rei vindicatio
must
be determined on the basis of the facts that existed at the time the action was
instituted.
[46]
Â
What happens subsequent thereto cannot affect the success of the action.  In
Mehlape
[47]
the Court put the position as follows:
“The
rei vindicatio
is not
instituted in respect of an act that has been performed; it is instituted in
respect of a factual situation pertaining at
the time of the institution of the
legal proceedings.”
[48]
[135]
The applicant instituted the action on 15 July 2004, only two days after the currency was seized.  It was only on 19 July 2004 that
the currency was handed over to SARS and the note approving removal
under
section 31(1)(a)
signed.  It may be correct, as Mokgoro J argues, that on
19 July 2004 it was apparent that the currency was not needed for the
criminal
proceedings and further detention under
section 20
was unjustified.  However,
on the facts that existed at the time when the action was instituted, that is 15 July 2004, there is
no evidence that the respondents would not require the currency in
future criminal proceedings.  It is unlikely that the respondents
would, at
that stage, have known whether criminal proceedings would be instituted at all,
let alone whether the currency would
be required.  The respondents have
therefore demonstrated that, at the time the proceedings were instituted, their
possession
of the currency was justified under
section 20
of the CPA.
[136]
As demonstrated earlier in this judgment, the
applicants have ceaselessly litigated up to this Court.  There is no evidence
justifying
any blame for the delay to be laid at the door of the respondents.
Â
We therefore refrain from drawing any inference in that regard.
Costs
[137]
The applicants have succeeded in part in their
vindicatory claim.  That part relates to our finding that they have established
ownership of the €20 865.  However, the applicants have not shown that they are
the owners of the €109 135 and, what is more,
they have not shown that the
respondents are not entitled to hold the amount seized pending an order of
disposal at the end of
the criminal trial.  In these circumstances, a just and
equitable outcome relating to costs is, in our view, not to burden the

applicants with costs.  We would rather make no order as to costs.
Order
[138]
In the result, the following order is made:
1.  The
application for leave to appeal is granted.
2.  The appeal is dismissed
with no order
as to costs.
Langa CJ, Kondile AJ, Madala J, Van der
Westhuizen J and Yacoob J concur in the judgment of Moseneke DCJ and Nkabinde
J.
For the Applicant:                                                               Â
Advocate
P Hodes SC and Advocate A Katz instructed by Miskey Incoporated.
For the First, Second and Third Respondents:                    Advocate
A de V La Grange SC instructed by the
State Attorney
, Cape Town.
[1]
Van der Merwe and Another v Nel and Others
[2006] 4
All SA 96
(C);
2006 (2) SACR 487
(C).
[2]
Inspector Nel, who was the initial investigating officer, was cited
as the first respondent in the court of first instance.  Inspector
Taylor is now investigating the case.
[3]
Section 15(1) of the Customs and Excise Act 91 of 1964 reads as
follows:
“Any
person entering or leaving the Republic shall, in such a manner as the
Commissioner may determine, unreservedly declare—
(a)           at
the time of such entering, all goods (including goods of another person) upon
his person or in his possession
which he brought with him into the Republic
which—
(i)            were
purchased or otherwise acquired abroad or on any ship, vehicle or in any shop
selling goods on which
duty has not been paid;
(ii)          were
remodelled, processed or repaired abroad;
(iii)          are
prohibited, restricted or controlled under any law; or
(iv)          were
required to be declared before leaving the Republic as contemplated in
paragraph (b).
(b)           before
leaving, all goods which he proposes taking with him beyond the borders of the
Republic,
and shall
furnish an officer with full particulars thereof, answer fully and truthfully
all questions put to him by such officer
and, if required by such officer to do
so, produce and open such goods for inspection by the said officer, and shall
pay the duty
assessed by such officer, if any, to the Controller.”
[4]
A calculation of the Euros reflected in applicants’ bank receipts
gives a total amount of €
130 285, however during oral submissions before
Court and on papers filed on record, both applicants and respondents refer to
the
amount of
€130 000.  The exchange rate of one Euro to one
Rand as at 9 July 2004 (the day he bought the foreign currency) was one € per

R7,5696401850 while that between US Dollars and the Rand was one US$ per
R6,1091921223.
[5]
Regulation 3(1) in relevant part, reads:
“Subject
to any exemption which may be granted by the Treasury or a person authorised by
the Treasury, no person shall, without
permission granted by the Treasury or a
person authorised by the Treasury and in accordance with such conditions as the
Treasury
or such authorised person may impose—
(a)           take
or send out of the Republic any bank-notes, gold, securities or foreign
currency, or transfer any securities
from the Republic elsewhere . . .”
[6]
Regulation 2 of the Exchange Control Regulations made in terms of
section 9
of the
Currency and Exchanges Act 9 of 1933
, under GN R1111 of
December 1961, as amended from time to time (the Exchange Control Regulations),
provides that no person, other
than an authorised dealer, shall buy or borrow
or sell any foreign currency or gold except with Treasury permission and in
accordance
with Treasury imposed conditions.  According to the Exchange Control
Manual issued by the South African Reserve Bank, the legal
framework is,
therefore, one of total prohibition on dealing in foreign exchange except with
the permission of, and on the conditions
imposed by, the Treasury.  The
economic policy underlying exchange control is intended to achieve several
goals, including the
prevention of the loss of foreign currency reserves.  As
regards the travel allowances, authorised dealers are required, prior
to making
foreign exchange available to travellers, to record the mode of transport, the
reference number issued, the date of departure
as well as the destination.Â
Prospective travellers are required to provide a written undertaking to the
relevant dealer that
the travel will commence within 60 days from the date of
the request to be accorded foreign exchange; that foreign exchange will
not be
purchased from the dealers in excess of the applicable limits (R160 000 and R50
000 for adults and children under 12 years
respectively); and that the foreign
currency will be resold to an authorised dealer within 30 days in the event of
the travel arrangement
being cancelled.  See South African Reserve Bank
Exchange
Control Manual
http://
www.sarb.co.za
, accessed on
31 March 2007; Joubert et al (eds)
The Law of South Africa
(reissue)
vol 2
at 413-415.
[7]
The second applicant is a company owned by a family trust of which
the first applicant is a trustee and sole director.
[8]
14 July 2004.
[9]
Section 99 provides that:
“The
Commissioner may, if he thinks necessary, declare any person to be the agent of
any other person, and the person so declared
an agent shall be the agent for
the purposes of this Act and may be required to make payment of any tax,
interest or penalty due
from any moneys, including pensions, salary, wages or
any other remuneration, which may be held by him or due by him to the person

whose agent he has been declared to be.”
[10]
Act
58 of 1962.
[11]
SARB initially applied to this Court for
admission as intervening party and to be joined as fifth respondent.  Later,
however,
it withdrew the application on realising that neither the applicants
nor the respondents requested this Court to interpret or pronounce
upon the
constitutionality of Regulations 3(3) and 3(5) of the Exchange Control
Regulations.
[12]
Section 31(1)(a) of the CPA reads:
“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.”
[13]
Van der Merwe and Another v Nel and Others
case no
5902/04, unreported 12 January 2005
at para 6.
[14]
Id
.
[15]
Id.
[16]
Regulation 3(5) of the Exchange Control Regulations provides:
“All
bank-notes, gold, securities and foreign currency seized under sub-regulation
(3) or (4) shall be forfeited for the benefit
of the Consolidated Revenue Fund:
Provided that Treasury may, in its discretion, direct that any bank-notes,
gold, securities or
foreign currency so seized, be refunded or returned, in
whole or in part, to the person from whom they were taken, or who was entitled

to have the custody or possession of them at the time when they were seized.”
[17]
Above n 13 at paras 38
-
40.
[18]
Above n 1
at para 13.
[19]
Section 20 provides:
“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 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.”
[20]
The applicants rely on the
following cases:
President of the Republic of South Africa v South African
Rugby Football Union and Others
2000 (1) SA 1
(CC);
1999 (10) BCLR
1059
(CC)
at paras 133-134;
Reuters Group PLC v Viljoen NO and Others
2001 (2) SACR 519
(C);
2001 (12) BCLR 1265
(C) at paras 2-4 and 33-35;
Rail
Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others
[2004] ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4) BCLR 301
(CC) at para 74;
York Timbers Ltd v
Minister of Water Affairs and Forestry and Another
2003 (4) SA 477
(T) at
506B;
[2003] 2 All SA 710
(T) at 736b.
[21]
In this regard, they rely on
Mohamed and Another v President of
the Republic of South Africa and Others
[2001] ZACC 18
;
2001 (3) SA 893
(CC) at para 68;
2001 (2) SACR 66
(CC) at para 69.
[22]
Section 167(3)(b) of the Constitution provides:
“The Constitutional Court may decide only constitutional matters, and issues connected with
decisions on constitutional matters”.
See
AAA Investments (Pty) Ltd v
Micro Finance Regulatory Council and Another
[2006] ZACC 9
;
2007 (1) SA 343
(CC);
2006
(11) BCLR 1255
(CC) at para 26.  See also
National Education Health and
Allied Workers Union v University of Cape Town and Others
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) at para 25;
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at paras 11-12;
Phillips and Others v
National Director of Public Prosecutions
[2005] ZACC 15
;
2006 (1) SA 505
(CC);
2006 (2)
BCLR 274
(CC) at para 30;
Radio Pretoria v Chairperson Independent
Communications Authority of South Africa and Another
[2004] ZACC 24
;
2005 (4) SA 319
(CC);
2005 (3) BCLR 231
(CC) at para 19.  See also section 167(6) of the
Constitution.
[23]
S v Basson
[2004] ZACC 13
;
2005 (1) SA 171
(CC) at
para 71;
Municipality of Plettenberg Bay v Van Dyk and Co Inc
2004 (2)
BCLR 113
(CC) at paras 1-6;
Swartbooi and Others v Brink and Another
[2003] ZACC 5
;
2006 (1) SA 203
(CC);
2003 (5) BCLR 497
(CC) at para
6;
National Coalition for Gay and Lesbian Equality and Others v Minister of
Home Affairs and Others
2000 (2) SA 1
(CC);
[1999] ZACC 17
;
2000
(1) BCLR 39
(CC)
at para 21.
[24]
The High Court followed the line adopted in
Action Engineering
and Fencing (Pty) Ltd v Moyses NO and Other
s
2004
(5) SA 399
(T);
[2003] 3 All SA 263
(T) at paras 4-15, that the foreign
currency that had been seized was forfeited to the State immediately.  The full
court
at
para 15, disagreeing with the reasoning of the
High Court in
Action
Engineering,
held that although Regulation
3(8) provided, as does Regulation 3(5), that foreign currency which has been
seized “shall” be
forfeited to the NRF, the forfeiture is subject to the
Treasury’s discretion to return or refund the currency “so seized”.
[25]
Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd
[1992] ZASCA 208
;
1993 (1)
SA 77
(A) at 81-82.
[26]
See
Unimark Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty)
Ltd
1999 (2) SA 986
(T) at 995I-996D;
Chetty v Naidoo
1974 (3) SA 13
(A) at 20C;
Vulcan Rubber Works (Pty) Ltd v South African Railways and
Harbours
1958 (3) SA 285
(A) at 297E;
Sorvaag v Pettersen and Others
1954
(3) SA 636
(C) at 639G and 641B.
[27]
Id.
[28]
In
First National Bank of SA Ltd t/a
Wesbank v Commissioner, South African Revenue Service and Another
;
First
National Bank of SA Ltd t/a Wesbank v Minister of Finance
[2002] ZACC 5
;
2002 (4) SA 768
(CC);
2002 (7) BCLR 702
(CC)
at
paras 57-58, Ackermann J observed that—
“[t]he term ‘deprive’ or
‘deprivation’ is . . . somewhat misleading or confusing because it can create
the wrong impression
that it invariably refers to the taking away of property,
whereas in fact ‘the term “deprivation” is distinguished very clearly
from the
narrower term “expropriation” in constitutional jurisprudence worldwide.’  In a
certain sense any interference
with the use, enjoyment or exploitation of
private property involves some deprivation in respect of the person having
title or
right to or in the property concerned . . . . Viewed from this
perspective section 25(1) deals with all ‘property’ and all deprivations

(including expropriations).”  (Footnote omitted.)
[29]
See Badenhorst et al
Silberberg and Schoeman’s:
The
Law of Property
4 ed (LexisNexis Butterworths, Durban 2003) 93.
[30]
1979 (2) SA 1113 (T).
[31]
Id at 1120C–D per Spoelstra AJ, translation by
Neethling et al
Law of
Delict
4 ed (LexisNexis Butterworths,
Durban 2001)
114.  The original Afrikaans version reads:
“Eiendomsreg is die mees volledige saaklike
reg wat ’n persoon ten opsigte van ‘n saak kan hê.  Die uitgangspunt is dat ‘n

persoon, wat ’n onroerende saak aanbetref, met en op sy eiendom kan maak wat hy wil.  Hierdie op die oog af ongebonde vryheid
is egter ‘n halwe waarheid.Â
Die absolute beskikkingsbevoegdheid van ’n eienaar bestaan binne die die perke
wat die reg daarop
plaas . . . . ”
[32]
Above n 28 at para 65.
[33]
Id at para 100.
[34]
Mkontwana v Nelson Mandela Metropolitan
Municipality and Another; Bisset and Others v Buffalo City Municipality and
Others; Transfer
Rights Action Campaign and Others v MEC, Local Government and
Housing, Gauteng, and Others
(
KwaZulu-Natal Law
Society and Msunduzi Municipality as
Amici Curiae)
[2004] ZACC 9
;
2005
(1) SA 530
(CC);
2005 (2) BCLR 150
(CC)
at paras 34-35.
[35]
Above n
1
at
paras 30-32.
[36]
Mr Wright is/was the
Investigator stationed with the
Directorate Special Operations, Cape Town.
[37]
Mr van der Merwe being the sole director
of the second applicant, Zonnekus Mansion, has standing to claim the return of
the foreign
currency, on the basis of the
rei vindicatio
.  See
Goolam
v Krishnadu
1957 (3) SA 215
(O).  See also,
DF Scott (EP) (Pty) Ltd v
Golden Valley Supermarket
2002 (6) SA 297
(SCA);
[2002] 3 All SA 1
(SCA)
at
paras 3, 4, 7 and 10
respectively where it held Rule
54 to be dealing with procedure for purposes of achieving a fair hearing of a
matter and therefore
providing for a party to an action to sue or be sued in a
name other than the party’s own name and therefore if such a party is
a partner
of a firm, then that party can be sued in the name of the firm instead of
creating the partnership or firm into a separate
juristic person.Â
Consequently, the owner of a sole proprietorship can sue and be sued on behalf
of the proprietorship.
[38]
Following the principle laid down in
Stellenbosch Farmers’
Winery
Ltd v Stellenvale Winery (Pty) Ltd
1957 (4) SA 234
(C) at 235E-G;
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634-635;
Rail
Commuters Action Group and Others
above n 20
at
paras
53-56.
[39]
According to the record, he bought €20 865 for himself and in the
names of the following other persons: Monique van der Merwe
(€20 850), Fern van
der Merwe (€20 860), Cristin van der Merwe (€7800), Candice van der Merwe
(€7800), Simone Raubenheimer
(€20 850), Heidi Marie Rohr (€20 860) and Erenche
Leonard (€10 400).
[40]
See above para [29].
[41]
This method of acquiring ownership, called
commixtio
, occurs
when there is a mixing of things belonging to different owners to form a single
unit.  The things mixed and forming the
single unit must however be
indistinguishable for purposes of separation.  Typical is the mixing of wine or
the same grain.Â
The rights of the different owners to share in the ownership
of the mixture do not result in a wilful act by the different owners,
but
arises from the circumstances in which the thing forms part of the single
unit.  An exception, however, is money, which is
said not to be ordinary
property not subject to the reallocation of rights in terms of the general
principles of
commixtio
.  In the case of money, ownership of the mixture
of unidentifiable notes or coins passes to the acquirer.  Money in foreign
currency
(not legal tender) would however be subjected to the ordinary legal
rules of property.  See Miller
The Acquisition and Protection of Ownership
(Juta,
Cape Town 1986) 48.
[42]
See above n 6 for the permissible annual travel allowance.
[43]
See above n 26.  In particular see
Unimark
above
n
26 at 1000B-1001I.
[44]
His credit card was debited with €130 000.
[45]
This is in accordance with the maxim
nemo plus iuris ad alium
transfere potest, quam ipse haberet
, which means a non-owner is not capable
of transferring ownership.  See in this regard
Kleudgen & Co v Trustees
in Insolvent Estate of Rabie
(1880) Foord 63
;
Beyers v McKenzie
(1880)
Foord 125
;
Mvusi v Mvusi NO and Others
1995 (4) SA 994
(Tk) at 999I-J.  Also
see Badenhorst et al above n 29 at 80.
[46]
For example, a
s infants and the mentally infirm are legally
incapable of having the intention to hold as owner, they cannot acquire
ownership
in movables and immovables save with the assistance of their legal
guardians.Â
See
Miller
above n 42 at 119.
[47]
Mvusi
above n 45 at 999D-E and 1000J-1001A;
Bank Windhoek
Bpk v Rajie en ’n Ander
1994 (1) SA 115
(SCA) at 141C-D;
Concor
Construction (Cape) (Pty) Ltd v Santambank Ltd
1993 (3) SA 930
(A) at
933B-H;
Klerck NO v Van Zyl and Maritz NNO and Another and Related Cases
1989 (4) SA 263
(SE) at 273I-274A;
Trust Bank van Afrika Bpk v Western Bank
Bpk en Andere NNO
1978 (4) SA 281
(A) at 301H-302A;
Ex parte Smith
1956 (1) SA 252
(SR) at 254A-F.
[48]
See above n 41
with regard to the acquisition of ownership
in the case of money and foreign currency.
[49]
See above n 47.
[50]
See above n 47.  Here the court dealt with the transfer of
ownership under
constitutum possessorium
, where the transferor passes
ownership of the thing to another but still keeps possession of the thing
.
[51]
Above n 26.  In
Chong Sun Wood Products
Pte Ltd v K and T Trading Ltd and Another
2001 (2) SA 651
(D) at 656I-J the
court held that the passing of ownership is ultimately determined by intention
of the parties.
[52]
Where the acquisition of
ownership is constituted by a unilateral act as the title of the acquirer is
not derived from any predecessor
and where the intention of the latter is
irrelevant
,
unlike in the present case where the acquisition of ownership
on the other hand will require a bilateral act as it will require
the
cooperation and intention of Mr van der Merwe who would be the predecessor in
title.
[53]
Unimark
above n 26 at 998H-999A.  See also
MacDonald, Ltd
v Radin, NO and The Potchefstroom Dairies and Industries CO,
Ltd
1915
AD at 467.
[54]
Unimark
above n
26 at 1000B-1001H.
[55]
Although it was submitted that Mr van der Merwe’s credit
card account had been debited with €130 000, there is no information
whether or
not he owned a CFC account.  The submission was however not refuted. It is
common practice in banking law that a traveller’s
bank account may be debited
with foreign currency if it is a Customer Foreign Currency (CFC) account.  Such
an account is opened
with approval from the Reserve Bank, where the customer is
in the import and export business.  See the
South
African Reserve Bank (SARB)
Quarterly Bulletin
vol 1 at
212.
[56]
See above paras [30]-[31].
[57]
See above n 5.
[58]
Regulation 3(3)
provides:
“Every
person who is about to leave the Republic, and every person in any port or
other place recognised as a place of departure
from the Republic, who is
requested to do so by the appropriate officer shall—
(a)           declare
whether or not he has with him any bank-notes, gold, securities or foreign
currency; and
(b)
         Â
produce
any bank-notes, gold, securities or foreign currency which he has with him;
and the
appropriate officer and any person acting under his directions may search such
person and examine or search any article
which such person has with him, for
the purpose of ascertaining whether he has with him any bank-notes, gold,
securities or foreign
currency, and may seize any bank-notes, gold, securities
or foreign currency produced or found upon such examination or search unless

either—
(i)            the
appropriate officer is satisfied that such person is, in respect of any bank-notes,
gold, securities
or foreign currency which he has with him, exempt from the
prohibition imposed by sub-regulation (1); or
(ii)           such
person produces to the appropriate officer a certificate granted by the
Treasury which shows that
the exportation by such person of any bank-notes,
gold, securities or foreign currency, which he has with him does not involve a

contravention of that sub-regulation.
No female
shall be searched in pursuance of this sub-regulation except by a female.”
[59]
Above n 1 at para 26.
[60]
Although the bulk of the relevant case law dealt with the return of
the article on the ground that no criminal proceedings have
been instituted,
the same principle should also apply to cases where the return of the article
is sought on the ground that it
will not be required for purposes of evidence
or an order of court.  In
Heavy Transport and Plant Hire (Pty) Ltd and
Others v Minister of Transport Affairs and Others; South North Haulage (Pty)
Ltd and
Another v South African Transport Services
1985 (2) SA 597
(W) at
604I-605H, a case which concerned the return of the article seized under
section 36(1) of the Road Transportation Act 74
of 1977, the court remarked
that:
“I am
inclined to agree . . . that, having regard to the purpose of having [the
article] at court, it suffices if this takes place
in time for it being
required at the trial for evidential purposes or for a forfeiture order . . .
.”
[61]
Dookie
v Minister of Law and Order and Others
1991 (2) SACR 153
(D)
at 936A.
[62]
See section 33 of the CPA.
[63]
Above n 1 at para 25.
[64]
In
Heavy Transport
above n
60 at 604I, the court
confirmed that—
“In any
event, on the authority of the principle referred to in
Seccombe and Others
v Attorney-General and Others
1919 TPD 270
, applicants’ remedy would have
been a mandamus that the Police’s statutory duty be carried out, not that the
vehicles be given
back.
”
[65]
Given the broader scope of the
rei vindicatio
,
justifications which respondents may be required to give in order to keep
possession of the currency pending the trial include,
but are not limited to,
satisfying the requirements of section 31(1)(a) of the CPA.  See above para [51]
for grounds of justification
to hold an article under section 31(1)(a) pending
the trial.
[66]
Above n 13 at para 32.
[67]
Dookie
above n 61 at 157A.
[68]
Above para [51].
[69]
Dookie
above
n 61 at 156I-157H.
[70]
Id.
[71]
Section 20 above n 19 read with section 31(1)(a) above n 12.  See
also
Ntoyakhe v Minister of Safety and Security and Others
2000
(1) SA 257
(E) at 263E-F;
1999 (2) SACR 349
(E) at 354I-355A, where the court
held that where an article is stolen and the police are unable to identify the
true owner or
even a bona fide possessor, the article is forfeited to the
State.
[72]
See above n 6.
[73]
Id.
[74]
See above n 58.  See also Joubert (et al) above n 6 at para 417.
[75]
When a person is in possession of foreign currency and he or
she will not use it for the purpose for which it was issued it must
be returned
immediately or sold to the Treasury or an authorised dealer.  See Exchange
Control Manual above n 6.
[76]
See
Unimark
above n 26 at 996E.  See
also Badenhorst
et al
above n 29 at 228;
Mlombo v Fourie
1964 (3) SA
350
(T) at 358B-D;
Standard Bank of SA Ltd v Stama
(Pty) Ltd
1975
(1) SA 730
(A) at 741C-F;
Philip Robinson Motors (Pty) Ltd v NM Dada (Pty)
Ltd
1975 (2) SA 420
(A) at 429F.
[77]
Michael Hermann Armbruster and Another v The Minister of Finance
and Others
case no 6325/2005, unreported 10 May 2006 at para 50.
[78]
Other sections include 32, 34 and 35 of the CPA which deal with the
disposal of an article seized under section 20 in circumstances
not relevant
for present purposes.
[79]
Above para [15].
[80]
Above paras [17]-[18].
[81]
The democratic approach to public service accountability is broadly
based in comparison with the past.  Read together with section
195(1) of the
Constitution, the public service policy of
Batho Pele
requires that
public administration should serve the best interests of the public by enabling
the achievement of individual rights
encompassed in the provisions of the
Constitution.  In the past accountability was focused on the reporting by State
parties to
Parliament and not to the public.  In those days even if the public
was to approach courts for relief, the courts’ hands were
tied by the principle
that they could not interfere with executive action unless gross
unreasonableness was alleged.  See Cloete
and Mokgoro (eds)
Policies for
Public Service Transformation
(Juta, Kenwyn 1995) 7-8, where they write
that “[t]he classical approach” “[was] inward looking and constricted” as it
“require[d] only that rules, regulations, orders and instructions be adhered to
[and] [p]ublic servants [had] therefore been considered
accountable only to the
extent to which they [were] legally required to answer for their actions.”  See
also Baxter
Administrative Law
(Juta & Co Ltd, Cape Town 1984) 490-494
and
Fedsure Life Assurance Ltd and Others v Greater Johannesburg
Transitional Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998
(12) BCLR 1458
(CC) at paras 28-31.
[82]
See
Mohamed
above n 21.
[83]
Id.
[84]
See above n 81.
[85]
Id.
[86]
Above para [15].
[1]
Act 51 of 1977.
[2]
Section 31(1)(a) of the CPA reads:
“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.”
[1]
Exchange control regulations made in terms of
section 9
of the
Currency and Exchanges Act 9 of 1933
, under GN R1111 of December 1961, as
amended from time to time.
[2]
2004 (5) SA 399 (T); [2003] 3 All SA 263 (T).
[3]
It should be noted that Allie J in the Cape High Court adopted the
same approach as the Pretoria High Court in the
Action Engineering and
Fencing
matter.  See fuller discussion below at paras [5]–[6].
[4]
Section 195 of the Constitution provides—
“(1) Public
administration must be governed by the democratic values and principles enshrined
in the Constitution, including the
following principles:
(a)   A high standard of
professional ethics must be promoted and maintained.
(b)   Efficient, economic and
effective use of resources must be promoted.
(c)   Public administration must be
development-oriented.
(d)   Services must be provided
impartially, fairly, equitably and without bias.
(e)  People's
needs must be responded to, and the public must be encouraged to participate in
policy-making.
(f) Public administration must be
accountable.
(g) Transparency
must be fostered by providing the public with timely, accessible and accurate
information.
(h) Good
human-resource management and career-development practices, to maximise human
potential, must be cultivated.
(i)   Public
administration must be broadly representative of the South African people, with
employment and personnel management
practices based on ability, objectivity,
fairness, and the need to redress the imbalances of the past to achieve broad
representation.
(2) The
above principles apply to—
(a) administration in every sphere
of government;
(b) organs of state; and
(c) public enterprises.
(3)
National legislation must ensure the promotion of the values and principles
listed in subsection (1).
(4) The
appointment in public administration of a number of persons on policy
considerations is not precluded, but national legislation
must regulate these
appointments in the public service.
(5)
Legislation regulating public administration may differentiate between
different sectors, administrations or institutions.
(6) The
nature and functions of different sectors, administrations or institutions of
public administration are relevant factors
to be taken into account in
legislation regulating public administration.”
[5]
Section 1(c) of the Constitution provides that―
“The Republic of South Africa is one, sovereign, democratic state founded on . . . [s]upremacy
of the constitution and the rule
of law.”
[6]
Regulation 3(1)(a) provides—
“Subject
to any exemption which may be granted by the Treasury or a person authorised by
the Treasury, no person shall, without
permission granted by the Treasury or a
person authorised by the Treasury and in accordance with such conditions as the
Treasury
or such authorised person may impose take or send out of the Republic
any bank-notes, gold, securities or foreign currency, or transfer
any
securities from the Republic elsewhere . . . .”
[7]
Regulation 3(3)
provides—
“Every
person who is about to leave the Republic and every person in any port or other
place recognised as a place of departure
from the Republic, who is requested to
do so by the appropriate officer shall―
(a)
declare whether or not he
has with him any bank-notes, gold, securities or foreign currency; and
(b)
produce any bank-notes,
gold, securities or foreign currency which he has with him;
and the
appropriate officer and any person acting under his directions may search such
person and examine or search any article
which such person has with him, for
the purpose of ascertaining whether he has with him any bank-notes, gold,
securities or foreign
currency, and may seize any bank-notes, gold, securities
or foreign currency produced or found upon such examination or search unless

either –
(i) the appropriate officer is
satisfied that such person is, in respect of any bank-notes, gold, securities
or foreign currency
which he has with him, exempt from the prohibition imposed
by sub-regulation (1); or
(ii) such person produces to the
appropriate officer a certificate granted by the Treasury which shows that the
exportation by such
person of any bank-notes, gold, securities or foreign
currency, which he has with him does not involve a contravention of that
sub-regulation.
No female
shall be searched in pursuance of this sub regulation except by a female.”
[8]
Regulation 3(5) provides—
“All
bank-notes, gold, securities and foreign currency seized under sub-regulation
(3) or (4) shall be forfeited for the benefit
of the Consolidated Revenue Fund:
Provided that Treasury may, in its discretion, direct that any bank-notes,
gold, securities or
foreign currency so seized, be refunded or returned, in
whole or in part, to the person from whom they were taken, or who was entitled

to have the custody or possession of them at the time when they were seized.”
[9]
Above n 2.
[10]
CCT 59/06.
[11]
See above para [82].
[12]
Para [119] below.
[13]
Section 99 of the Income Tax Act provides that—
“The
Commissioner may, if he thinks necessary, declare any person to be the agent of
any other person, and the person so declared
shall be the agent for the
purposes of this Act and may be required to make payment of any tax, interest
or penalty due from any
monies, including pensions, salary, wages or any other
remuneration, which may be held by him or due by him to the person whose
agent
he has been declared to be.”
[14]
The text of section 31(1)(a) is set out in n 23 below.
[15]
1958 (3) SA 285
(A) at 289.
[16]
Id at 289F.
[17]
1996 (4) SA 133 (W).
[18]
Section 17(1) and (2) of the proclamation provides―
“(1) No
legal proceedings shall be instituted against the State or any body or person
in respect of any alleged act performed
in terms of this proclamation, or an
alleged failure to do anything which should have been done in terms of this
proclamation,
unless the legal proceedings are instituted before the expiry of
a period of 12 calendar months after the date upon which the claimant
became
aware of the alleged act or omission, or after the date upon which the claimant
might be reasonably expected to have become
aware of the alleged act or
omission, whichever is the earliest date.
(2) No
such legal proceedings shall be instituted before the expiry of at least one
calendar month after written notification of
the intention to institute such
proceedings has been served on the defendant, wherein particulars of the
alleged act or omission
are contained.”
[19]
Above n 17 at 136B–C and see judgment of Moseneke DCJ and Nkabinde
J above at para [134].
[20]
Above n 17 at 136D–E.
[21]
This is a principle asserted by this Court on many occasions.  See
for example
Amod v Multilateral Motor Vehicle Accidents Fund
[1998] ZACC 11
;
1998 (4) SA
753
(CC);
1998 (10) BCLR 1207
(CC) at para 14;
De Freitas and Another v
Society of Advocates of Natal (Natal Law Society Intervening)
1998 (11)
BCLR 1345
(CC) at para 23 and
Carmichele v Minister of Safety and Security
and Another (Centre for Applied Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at paras 53-5.
[22]
See Miller
The Acquisition and Protection of Ownership
(Juta
& Co Ltd, Kenwyn 1986) 278 in which there is a suggestion that the
principle may have application to vindicatory proceedings.
[23]
Section 31(1)(a)
of the
Criminal Procedure Act
provides
―
“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.”
[1]
Regulation 3(1)
reads:
“Subject
to any exemption which may be granted by the Treasury or a person authorised by
the Treasury, no person shall, without
permission granted by the Treasury or a
person authorised by the Treasury and in accordance with such conditions as the
Treasury
or such authorised person may impose—
(a)
take or send out of the Republic any bank-notes, gold, securities or
foreign currency, or transfer any securities from the Republic
elsewhere . . .
.”
[2]
GN R1111 GG 123, 1 December 1961 (as amended), promulgated in terms of
section 9
of the
Currency and Exchanges Act 9 of
1933
.
[3]
The transaction report of the South African Reserve Bank’s
Exchange Control Department reveals that the first applicant had, on
6 April
2004, also purchased $17 538 equal to R110 294, 57 resulting in him exceeding
his annual travel allowance for the year
2004 in contravention of the
Regulations.
[4]
The equivalent of the sum of R159 971,95.  The permissible travel
allowance per adult per calendar years was, in terms of the Exchange
Control
Rulings D.381/February 2003, R160 000.
[5]
On 16 July 2004 the
matter was postponed by agreement
between the parties to 9 December 2004.  The respondents’ were ordered to file
their answering
affidavits on 10 August 2004 and the applicants were to file
their replying affidavits by no later than 27 August 2004.  It is
remarkable that the applicants elected not to file any reply to the respondents’
answering affidavits.
[6]
T
his amount does not form part of the amount which is the
subject matter of the vindicatory claim.
[7]
It being alleged that the amount found on his person was
some R80 000 below the permissible total limit of approximately R1.2 million

for the party.
[8]
Above n 1.
[9]
We do not need to decide whether it was appropriate for the
applicants to change the basis of their case at the initial hearing
in the High
Court.
[10]
Van der Merwe and Another v Nel and Others
5902/04,
unreported 12 January 2006 at para 13.
[11]
Van der Merwe and Another v Nel and Others
[2006] 4 All SA
96 (C); 2006 (2) SACR 487 (C).
[12]
Id at
para 27.
[13]
The Supreme Court of Appeal dismissed the application for leave to
appeal with costs on 19 June 2006.
[14]
The various amounts paid into the first applicant’s Nedbank
credit card account were said to originate from
the sale of Flat No 10 Woodbridge
Island, allegedly belonging to the second applicant in the sum of R563 718, 83;
the
balance of the sale of Flat 10 Woodbridge Island, amounting to R129
030; a cash withdrawal of R195 000 allegedly made from ABSA being
part of the
proceeds of sale of Flat 8 Woodbridge Island; and an amount of R145 000
allegedly proved by the winnings and redemption
at Grand West Casino.
[15]
This is borne by the customer
receipt issued in his name by
Nedbank.
[16]
Extracted from the maxim
ubi rem meam invenio ibi vindico –
literally meaning “wherever I am finding my property I assert my claim to it”.Â
See in this regard Badenhorst et al
Silberberg & Schoeman’s
The
Law of Property
4 ed (LexisNexis Butterworths, Durban 2003) 225.
[17]
The principle was enunciated in the well-known case of
Graham v
Ridley
1931 TPD 476.Â
See also
Jeena v Minister of Lands
1955
(2) SA 380
(A) at 382F-H;
Myaka v Havemann and Another
1948 (3) SA 457
(A) at 465; and
Krugersdorp
Town
Council v Fortuin
1965
(2) SA 335
(T) at 336B-E.
[18]
SA Hyde (Pty) Ltd v Neumann
N.O. and Another
1970 (4)
SA 55
(O) at 61.  The view was expressed that money, “provided it is
identifiable with or ear-marked as a particular fund to which
the applicant is
entitled”, can be recovered with a quasi-vindicatory claim.  See also
Unimark
Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd
1999 (2) SA 986
(T)
at 996C–D and 1011A–B.
[19]
Mehlape v Minister of Safety and Security
1996 (4) SA 133
(W) at 136G in which it was made clear that legal proceedings based on the
rei
vindicatio
always have to relate to physical control being exercised by the
respondent over the object in question at time of institution of
proceedings.
[20]
Motloung v Rokhoeane
1991 (1) SA 708
(W) at 716G–H.
[21]
Ndlovu v Ngcobo; Bekker and Another v Jika
2003 (1) SA 113
(SCA) at para 46, quoting
Chetty v Naidoo
1974 (3) SA 13
(A) at 20A
where the Court remarked that if the owner goes beyond alleging merely his
ownership and the defendant being in possession,
other considerations come into
play.
[22]
Section 31(1)(a)
provides:
“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.”
[23]
Act 51 of 1977.
[24]
1995 (2) SACR 465
(O).
  In this case, the
applicant’s claim for the return of the vehicle was based upon the provisions
of section 31(1)(a) of the
CPA, the issue being whether the matter was one in
which no criminal proceedings were later instituted against the applicant.
[25]
Badenhorst et al above n 16 at 239-240.
[26]
See
Khan v Volschenk
1986 (3) SA 84
(A) at 88E,
quoting Digest 46.3.78 (Scott’s translation).
[27]
Although Mr van der Merwe claimed that this particular foreign
currency accorded with his permissible travel allowance for the calendar
year,
the respondents stated that he had in fact already exceeded the allowance.
[28]
The customer receipts were issued in the names of each member of
the party, namely:
Simone Raubenheimer, Erencha
Leonard, Candice van der Merwe, Fern van der Merwe, Cristin van der Merwe,
Heidi Marie Rohr and Monique
van der Merwe.  The additional customer receipt
was issued in the first applicant’s name for the sum of €20 865.
[29]
14 CTR 1001.
[30]
1949 (1) SA 830 (A).
[31]
Id at 837.
[32]
Id at 838.
[33]
1941 369 AD.
[34]
Id per Centlivres JA at 411.
[35]
In accordance with Regulation 3(1) above n 1.
[36]
See “Sale of Goods” in Simonds (ed)
Halsbury’s
The
Law of England
vol 34 (Butterworth & Co (Publishers) Ltd, London 1960)
at para 98, regarding the question of intention when transferring property
from
seller to buyer.
[37]
Regarding the requirements for the valid passing of ownership of
movables see
Trust Bank van Afrika Bpk v Western Bank Bpk en Andere NNO
1978
(4) SA 281
(A) at 301H-302A and
Concor Construction (Cape) (Pty) Ltd v
Santambank Ltd
1993 (3) SA 930
(A) at 933A-D. Â
Mackeldey in
Roman
Law
at para 281 (Dropsie’s translation), quoted in
Commissioner of
Customs and Excise
above n 33 at 410-411, says—
“Delivery (
traditio
)
as a mode of acquiring property rests on the principle that when the owner of a
thing relinquishes the possession of it to another
for the purpose of vesting
in him the ownership of it the latter acquires such ownership when he so
intends.”
In para 283 he says that—
“[T]he
tradition of a thing by the owner does not make it the transferee’s property,
excepting when it is in consequence of
an intention to transfer (
justa causa
);
that is, it must either be preceded by a legal transaction which gives the
transferee a right to claim the ownership of the thing
or by some other fact
expressive of the transferor’s intention to transfer the ownership of the thing
to the transferee.”
[38]
See Goulding
Odgers on Civil Court Actions
24 ed
(Sweet & Maxwell, London 1996) at 154, which states that—
“Whenever
the same legal result can be attained in several different ways it is not
sufficient to aver merely that the result
has been arrived at, but the facts
must be stated showing how and by what means it was attained.”
[39]
[1984] ZASCA 51
;
1984 (3) SA 623
at 634E-I.  According to this rule
a court
in motion proceedings, in determining whether a case is made out, must examine
the undisputed averments of the applicant
together with the averments of the
respondent.”
[40]
Commentary on the Pandects
6.1.24.
[41]
Gane
The Selective Voet Being the Commentary on the
Pandects
Translation vol. 2 (Butterworth and Co (Africa) Ltd, Durban 1955)
237.  The view was adopted in
Ruskin NO v Thiergen
1962 (3) SA 737
(A)
at 742H-743A.
[42]
See
Dreyer and Another NNO v AXZS Industries (Pty) Ltd
2006
(5) SA 548
(SCA);
[2006] 3 All SA 219
(SCA) at para 4, where the Court remarked
that—
“This principle was
recognised in
Voet
6.1.24 and has been consistently applied by our
Courts, at least since
Kemp v Roper NO
(1886) 2 Buch AC 141
(at 143)
which was decided in 1886.  (See also
Ruskin NO v Thiergen
1962 (3) SA
737
(A) at 744;
Chetty v Naidoo
1974 (3) SA 13
(A) at 20A-C; Van der
Merwe
Sakereg
2 ed at 347
et seq
; Badenhorst, Pienaar and Mostert
Silberberg and Schoeman
The Law of Propery
4 ed at 255
et seq
.)”
[43]
Krugersdorp Town Council
above n 17 at 336A–337B;
Khuzwayo v Dludla
[2000] 4 All SA 329
(LCC) at 334E.  See also
Unimark Distributors
above n 18 at 996C–D.
[44]
Section 20 of the CPA provides:
“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.”
[45]
Above n 22.
[46]
See, for example,
Vulcan Rubber Works (Pty) Ltd v South
African Railways and Harbours
1958 (3) SA 285
(A) at 289 and
Mehlape
above n 19 at 136B-E.  See also
Unimark Distributors
above n 18 at
1011A-B.
[47]
Mehlape
above n 19.
[48]
Id at 136B-C.