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[2014] ZACC 14
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Ngqukumba v Minister of Safety and Security and Others (CCT 87/13) [2014] ZACC 14; 2014 (7) BCLR 788 (CC); 2014 (5) SA 112 (CC); 2014 (2) SACR 325 (CC) (15 May 2014)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 87/13
In
the matter between:
ANELE
NGQUKUMBA
…..............................................................................................
Applicant
and
MINISTER
OF SAFETY AND SECURITY
…
..................................................
First Respondent
STATION
COMMISSIONER,
MTHATHA
CENTRAL POLICE
STATION
..................................................
Second
Respondent
COMMANDING
OFFICER-VEHICLE SAFE
GUARD
UNIT: GROUP 46,
MTHATHA
..........................................................
Third
Respondent
Neutral
citation:
Ngqukumba v Minister of
Safety and Security and Others
[2014]
ZACC 14
Coram:
Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza
AJ, FronemanJ, Jafta J, Madlanga J, Mhlantla AJ, Nkabinde J, and
Zondo J
Heard
on:
14 November 2013
Decided
on:
15 May 2014
ORDER
On
appeal from the Supreme Court of Appeal (hearing an appeal from the
Eastern Cape High Court, Mthatha):
1.
Condonation is granted.
2.
Leave to appeal is granted.
3.
The appeal succeeds.
4.
The order of the Supreme Court of Appeal is
set aside.
5.
Paragraphs 2 and 3 of the order of the
Eastern Cape High Court, Mthatha (High Court) are set aside and
substituted with the following
order:
The
respondents are ordered to return the motor vehicle with the
registration
BTR 190 EC to the applicant.
6.
The respondents must pay the applicant’s
costs, including the costs of two counsel, in this Court, the Supreme
Court of Appeal
and the High Court.
JUDGMENT
MADLANGA
J (Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, FronemanJ,
Jafta J, Mhlantla AJ, Nkabinde J, and Zondo J concurring):
Introduction
[1]
Section
68(6)(b) of the National Road Traffic Act
[1]
(Traffic
Act) prohibits possession “without lawful cause” of a
motor vehicle of which the engine or chassis number has
been
falsified or mutilated. This matter concerns the question whether
this section entitles the police to withhold a vehicle which
they
have seized unlawfully. The Eastern Cape High Court, Mthatha (High
Court), following Supreme Court of Appeal authority,
[2]
held – against the applicant – that it does.
[3]
An appeal to the Supreme Court of Appeal failed.
[4]
The applicant comes before us by way of an application for leave to
appeal.
Background
[2]
On 10 February 2010 a suspect who was under
investigation by the police in connection with a stolen vehicle
volunteered unrelated
information. The information was that he had
previously been involved in the theft of another vehicle. He told the
police that
this vehicle was at a certain taxi rank in Mthatha. The
police took him there. He pointed out the vehicle to them. This was
the
applicant’s vehicle. The police instructed the applicant’s
driver to take the vehicle to a police station. There they
discovered
that its chassis number had been tampered with and appeared to have
been removed from another vehicle and placed in
the applicant’s
vehicle; there was no engine number as the original engine number had
been ground off; and the manufacturer’s
tag plate had been
removed from another vehicle and placed on the applicant’s
vehicle. The police retained the vehicle. During
all this the police
were without a search and seizure warrant.
[3]
The
applicant subsequently instituted proceedings in the High Court for
the return of the vehicle. The cause of action was the
mandament
van spolie
,
[5]
the essence of which is explained below. It was not contested that
the applicant had been in possession of the vehicle prior to
the
seizure. In the main, the police contended that, because the engine
and chassis numbers of the vehicle had been tampered with,
it was
legally incompetent to order its return to the applicant. This stance
was based on the provisions of section 68(6)(b)
[6]
read with section 89(1)
[7]
of
the Traffic Act. The substance of the argument was that, if the Court
were to order restoration of possession, it would effectively
be
assisting the applicant in the commission of a criminal offence.
[4]
The
High Court found the seizure to have been unlawful. However, it
refused to order the return of the vehicle to the applicant
because
his
possession of it would constitute a criminal offence in terms of
section 68(6)(b) read with section 89(1) of the Traffic Act.
Instead,
it ordered the retention of the vehicle by the police until it had
been re-registered in accordance with the Traffic Act.
It granted the
applicant leave to appeal to the Supreme Court of Appeal. That
culminated in the appeal that did not succeed. The
respondents
[8]
did not appeal against the declaratory order that the seizure had
been unlawful.
[9]
[5]
The
Supreme Court of Appeal – following a number of its previous
decisions
[10]
–held that
it was not competent to order the return of the vehicle to the
applicant. The basis was the prohibition on possession
of a tampered
vehicle “without lawful cause”.
[11]
It held:
“
The
appellant’s possession of the vehicle for now − until
such time as a police clearance is issued and the vehicle
is
registered in accordance with the provisions of the Act − will
thus be unlawful according to the criminal law. The police
cannot
lawfully release the vehicle to the appellant, whether he is the
owner or erstwhile lawful possessor thereof. An order by
a court that
it be done will be no different than ordering a person to be restored
in the possession of his or her heroin or machine
gun which he or she
may not lawfully possess. In fact, when counsel for the appellant was
invited in argument to distinguish this
case from a claim by the
former possessor of heroin, he was unable to do so.”
[12]
(Footnote omitted.)
[6]
Before
us, the applicant persists in seeking restoration of possession.
[13]
The respondents remain adamant in their opposition.
Issues
[7]
The issues that arise are whether: (a)
leave to appeal should be granted; and (b) in proceedings for a
spoliation order section
68(6)(b) read with section 89(1) of the
Traffic Act precludes restoration of possession.
Condonation
[8]
Before dealing with the issues, let me
dispose of an application for condonation brought by the applicant.
The application for leave
to appeal to this Court was filed out of
time. The respondents do not oppose. They made it clear during oral
argument that they
too stand to benefit from a judgment of this Court
on the merits. It is not necessary to set out the factors that have
informed
my decision on this issue. Suffice it to say, on balance I
take the view that condonation should be granted.
Leave
to appeal
[9]
This
case raises issues that are firmly rooted in the rule of law, a
founding value of the Constitution.
[14]
It also involves an important issue of statutory interpretation
relating to possession, a subset of the right to property, in a
manner consonant with the provisions of section 39(2) and (3) of the
Constitution.
[15]
At the
centre of it all is the spoliation order in the context of statutory
provisions which, on their face, appear to preclude
restoration of
possession; a vexing subject which has seen the Supreme Court of
Appeal overruling one of its judgments in as short
a period as only
one year to the day.
[16]
Needless to say, these legal issues are constitutional in nature.
They are complex and of great import. Without doubt, it is in
the
interests of justice for this Court to pronounce on them. Leave to
appeal must be granted.
Do
sections 68(6)(b) and 89(1) preclude a spoliation order?
[10]
The
essence of the
mandament
van spolie
is the restoration before all else of unlawfully deprived possession
to the possessor. It finds expression in the maxim
spoliatus
ante omnia restituendus est
(the despoiled person must be restored to possession before all
else).
[17]
The spoliation
order is meant to prevent the taking of possession otherwise than in
accordance with the law.
[18]
Its underlying philosophy is that no one should resort to self-help
to obtain or regain possession.
[19]
The main purpose of the
mandament
van spolie
is to preserve public order by restraining persons from taking the
law into their own hands and by inducing them to follow due
process.
[20]
[11]
This
applies equally whether the despoiler is an individual or a
government entity or functionary. In
Vena
[21]
the then Appellate Division, now the Supreme Court of Appeal,
endorsed
Sithole
:
[22]
“
The
Court came to the conclusion that the section was not worded so
clearly as to detract from the general principle of law ‘.
. .
that there shall be no spoliation by any person, be it an individual,
or a government department or a
municipality or any similar body
’.
. . . What the learned Judge said at 117D-F bears repetition:
‘
[T]he
clear principle of our law is that, ordinarily speaking, persons are
not entitled to take the law into their own hands to
enforce their
rights. There is a legal process by which the enforcement of rights
is carried out. Normally speaking, it is carried
out as a result of
an order of court being put into effect through the proper officers
of the law such as the sheriff, deputy sheriff,
messenger of the
magistrate’s court or his deputies, reinforced if necessary, by
the aid of the police or some such authority;
in most civilised
countries there exists the same principle that no person enforces his
legal rights himself. For very obvious
reasons that is so; if it were
not so, breaches of the peace, for instance, would be very common. It
is clear, therefore, that
if you want to enforce a right you must get
the officers of the law to assist you in the attainment of your
rights.’
That
this is a fundamental principle of our law admits of no doubt.”
(Emphasis added.)
[12]
A
spoliation order is available even against government entities for
the simple reason that unfortunately excesses by those entities
do
occur. Those excesses, like acts of self-help by individuals, may
lead to breaches of the peace: that is what the spoliation
order,
which is deeply rooted in the rule of law, seeks to avert.
[23]
The likely consequences aside, the rule of law must be vindicated.
The spoliation order serves exactly that purpose.
[13]
It
matters not that a government entity may be purporting to act under
colour of a law, statutory or otherwise. The real issue is
whether it
is properly acting within the law. After all, the principle of
legality requires of state organs always to act in terms
of the
law.
[24]
Surely then, it
should make no difference that, in dispossessing an individual of an
object unlawfully, the police purported to
act under colour of the
search and seizure powers contained in the Criminal Procedure
Act.
[25]
Non compliance
with the provisions of the Criminal Procedure Act in seizing a
person’s goods is unlawful. This unlawfulness,
plus the other
requirement for a spoliation order (namely, having been in possession
immediately prior to being despoiled) satisfy
the requisites for the
order. All that the despoiled person need prove is that—
(a)
she was in possession of the object; and
(b)
she
was deprived of possession unlawfully.
[26]
[14]
The
obvious conclusion is that the
mandament
van spolie
is
available even against the police where they have seized goods
unlawfully. The central question is: are sections 68(6)(b) and
89(1)
of the Traffic Act
[27]
to be
read in a manner that alters this position? Do they stand in the way
of restoration of possession of the vehicle in terms
of a spoliation
order in this matter? I think not.
[15]
It
seems to me that on this subject the Supreme Court of Appeal proceeds
from the premise that a tampered vehicle is no different
from an
article the possession of which would be unlawful under all
circumstances. That is an erroneous premise because possession
of a
tampered vehicle will be unlawful only if it is “without lawful
cause”.
[28]
That leads
me to a crucial point of departure. It is that in this case we are
not concerned with objects the possession of which
by ordinary
individuals would be unlawful under all circumstances. Had we been
concerned with objects of that nature, then the
mandament
van spolie
might well not be available; but that issue is not before us and need
not be decided. The fact that we are here concerned with
an article
that
may
be possessed quite lawfully
makes all the difference. On the assumption that an individual can
never possess heroin lawfully, the Supreme Court of Appeal’s
heroin example is not apt.
[29]
At the risk of repetition, the simple point of distinction is that an
individual can possess a tampered vehicle if there is lawful
cause
for its possession.
[16]
With
this in mind, I take the view that sections 68(6)(b) and 89(1) of the
Traffic Act must, as far as possible, be read in a manner
that is
harmonious with the
mandament
van spolie.
This
is in accordance with the principle that, to the extent possible,
statutes must be read in conformity with the common law.
[30]
Of course, where a harmonious reading is not possible, statutes must
trump the common law.
[31]
[17]
Specifically
on self-help and thus more on point, in
Vena
[32]
Milne JA expressly approved a statement by Friedman J in the court of
first instance, which read as follows:
“
It
is a fundamental principle of our law that a person may not take the
law into his own hands and a statute should be so interpreted
that it
interferes as little as possible with this principle.”
[18]
Nothing
tells me that sections 68(6)(b) and 89(1) are plainly intended to
alter the common law. There would be disharmony between
these
sections, on the one hand, and the availability of the
mandament
van spolie
,
on the other, only if section68(6)(b) did not have the phrase
“without lawful cause”. Thus the sections must be read
not to oust the normal operation of the
mandament
van spolie
.
This reading promotes the spirit, purport and objects of the Bill of
Rights and, therefore, conforms to the provisions of section
39(2) of
the Constitution.
[33]
This I
say because possession is closely associated with and is often an
incident of ownership. In some instances the protection
of possession
will guarantee wholesome enjoyment of the right to property. Not
surprisingly, section 39(3) of the Constitution
recognises the
existence of rights and freedoms created by the common law if they
are not inconsistent with the Constitution.
[34]
[19]
This
reading of the two sections does not unduly thwart effective
policing. Rather it enjoins police to act not only in accordance
with
the Criminal Procedure Act, but with the Constitution as well. In the
face of the privacy right as also the right to dignity,
which are
closely linked,
[35]
it is not
overly restrictive to require of police to comply strictly with
search warrant requirements.
[36]
Where there is a need for swift action, the police can always invoke
section 22 of the Criminal Procedure Act.
[37]
Strict compliance with the Constitution and the law will not hamper
police efforts in stemming the scourge of crime.
[20]
Without
doubt the police play an important role in combating and preventing
crime, conducting criminal investigations, maintaining
public order,
protecting and securing the inhabitants of South Africa and their
property and upholding and enforcing the law.
[38]
Their endeavours in this regard should not be interfered with unduly.
However, they, like everyone else, are subject to the Constitution,
in particular – for present purposes – the rule of law. A
failure to hold them to the Constitution strictly may have
negative
consequences: it may encourage them to be a law unto themselves.
After all, police excesses are not unknown. Reading sections68(6)(b)
and 89(1) in a manner that ousts the
mandament
van spolie
may
lead to a culture of impunity amongst police. That is at odds with
constitutionalism.
[21]
Possession
of the vehicle by the applicant pursuant to its return in terms of a
court order would only be unlawful if it were established
that he did
not have lawful cause to possess it. That is a conclusion that can
only be reached after an enquiry into the facts
surrounding the
applicant’s possession. Before that enquiry, one is not in a
position to say the applicant’s possession
of the vehicle will
be unlawful – it may or may not be, depending on the result
that the enquiry would yield. The question
that arises is: in
proceedings for a spoliation order, is it proper to hold that
enquiry? I say not. That would be enquiring into
the merits of the
lawfulness of the applicant’s possession. Those merits are
irrelevant in proceedings for a spoliation order:
the despoiler must
restore possession
before
all else
.
Self help
is so repugnant to our constitutional values that where it has been
resorted to in despoiling someone, it must be
purged before any
enquiry into the lawfulness of the possession of the person
despoiled.
[39]
Earlier
I made the point that restoration of possession may even be to a
person who might eventually be shown to be a thief or robber.
[40]
The return to the applicant of the tampered vehicle, which may be
possessed lawfully, is no different.
Costs
[22]
Unlike
in the High Court, where his success was partial, before us the
applicant succeeds outright. I see no reason to depart from
the
general principle that costs must follow the result.
[41]
Order
[23]
In the result, the following order is made:
1.
Condonation is granted.
2.
Leave to appeal is granted.
3.
The appeal succeeds.
4.
The order of the Supreme Court of Appeal is
set aside.
5.
Paragraphs 2 and 3 of the order of the
Eastern Cape High Court, Mthatha (High Court) are set aside and
substituted with the following
order:
The
respondents are ordered to return the motor vehicle with the
registration
BTR 190 EC to the applicant.
6.
The respondents must pay the applicant’s
costs, including the costs of two counsel, in this Court, the Supreme
Court of Appeal
and the High Court.
For
the Applicant:
Advocate
S Mbenenge SC, Advocate A Da Silva and Advocate N Mnqandi instructed
by Mvuzo Notyesi Inc.
For
the Respondents:
Advocate
N Dukada SC and Advocate M Matyumza instructed by the State Attorney.
[1]
93
of 1996.
[2]
Below
n 10.
[3]
Ngqukumba
v Minister of Safety and Security and Others
[2011] ZAECMHC 18 (High Court judgment).
[4]
Ngqukumba
v Minister of Safety and Security and Others
[2013] ZASCA 89
;
2013 (2) SACR 381
(SCA) (Supreme Court of Appeal
judgment).
[5]
A
remedy aimed at reversing unlawful deprivation of possession, also
known as a spoliation order.
[6]
Section
68(6)(b) reads:
“
No
person shall—
…
(b)
without lawful cause be in possession of a motor vehicle of which
the engine or chassis number has been falsified, replaced,
altered,
defaced, mutilated, or to which anything has been added, or from
which anything has been removed, or has been tampered
with in any
other way.”
I
refer to a vehicle with the defects set out in this section as a
“tampered vehicle”.
[7]
Section
89(1) provides:
“
Any
person who contravenes or fails to comply with any provision of this
Act or with any direction, condition, demand, determination,
requirement, term or request thereunder, shall be guilty of an
offence.”
[8]
The
first respondent is the Minister of Safety and Security. The second
respondent is the Station Commissioner of the Central
Police
Station, Mthatha. The third respondent is the Commanding
Officer Vehicle Safe Guard Unit, Group 46, Mthatha.
[9]
The
High Court order reads:
“
The
following order is therefore made:
1.
The seizure of the motor vehicle, described as Toyota Hilux with
registration letters and number BTR 190 EC is declared unlawful
and
is set aside;
2.
The retention of the same motor vehicle by the members of the South
African Police Service in Mthatha is declared lawful until
such time
the police clearance certificate is issued and the vehicle
reregistered under the
National Road Traffic Act 93 of 1996
;
3.
Each party is ordered to pay its own costs.”
The
seizure is done and complete and cannot be undone. It is difficult
to comprehend how the order can set it aside. I need say
no more
about this because this part of the order is not on appeal before
us.
[10]
Pakule
v Minister of Safety and Security and Another, Tafeni v Minister of
Safety and Security and Another
[2011]
ZASCA 107
;
2011 (2) SACR 358
(SCA);
Absa
Bank Ltd and Another v Eksteen
[2011]
ZASCA 40
;
Basie
Motors Bk t/a Boulevard Motors v Minister of Safety and Security
[2006]
ZASCA 35
; and
Marvanic
Development (Pty) Ltd and Another v Minister of Safety and Security
and Another
[2006]
ZASCA 18; 2007 (3) SA 159 (SCA).
[11]
Section
68(6)(b) of the Traffic Act.
[12]
Supreme
Court of Appeal judgment at para 15.
[13]
I
must state that by the time the matter came before us the police had
returned the vehicle to the applicant. These were the circumstances.
The police had serious overcrowding and safety problems with their
vehicle storage facilities. As a result, they returned some
vehicles, including the applicant’s, to the people from whom
they had been seized “strictly for safekeeping pending
the
outcome of . . . investigations”. Thus the return was
encumbered and in essence amounted to no more than an extension
of
the police storage facilities.
[14]
Section
1 of the Constitution reads:
“
The
Republic of South Africa is one, sovereign, democratic state founded
on the following values:
(a)
Human dignity, the achievement of equality and the advancement of
human rights and freedoms.
(b)
Non-racialism and non-sexism.
(c)
Supremacy of the constitution
and the rule of law
.
(d)
Universal adult suffrage, a national common voters roll, regular
elections and a multi-party system of democratic government,
to
ensure accountability, responsiveness and openness.” (Emphasis
added.)
[15]
Section
39(2) provides that “[w]hen interpreting any legislation, and
when developing the common law or customary law, every
court,
tribunal or forum must promote the spirit, purport and objects of
the Bill of Rights”. Section 39(3) provides that
“[t]he
Bill of Rights does not deny the existence of any other rights or
freedoms that are recognised or conferred by common
law, customary
law or legislation, to the extent that they are consistent with the
Bill.”
[16]
The
judgment in
Ivanov
v North West Gambling Board and Others
[2012] ZASCA 92
;
2012 (6) SA 67
(SCA) was delivered on 31 May 2012
and the Supreme Court of Appeal judgment in
Ngqukumba
,
which overruled it, was delivered on 31 May 2013.
[17]
In
Tswelopele
Non-Profit Organisation and Others v City of Tshwane Metropolitan
Municipality and Others
[2007] ZASCA 70
;
2007 (6) SA 511
(SCA) (
Tswelopele
)
at para 21, the Supreme Court of Appeal said:
“
Under
[the
mandament van spolie
],
anyone illicitly deprived of property is entitled to be restored to
possession before anything else is debated or decided (
spoliatus
ante omnia restituendus est
). Even an
unlawful possessor – a fraud, a thief or a robber – is
entitled to the
mandament
’s
protection. The principle is that illicit deprivation must be
remedied before the courts will decide competing claims
to the
object or property.”
This
Court cites
Tswelopele
with approval in
Schubart Park
Residents’ Association and Others v City of Tshwane
Metropolitan Municipality and Another
[2012] ZACC 26
;
2013 (1)
SA 323
(CC);
2013 (1) BCLR 68
(CC) at para 23. In proceedings for a
spoliation order one does not have to reach the question whether the
person deprived of
possession is in fact a fraud, thief or robber
for the simple reason that this is not at issue. That the person
might turn out
to be one is irrelevant.
[18]
Tswelopele
id.
[19]
Joubert
et
al (eds)
LAWSA
first reissue (Butterworths, Durban 2007) vol 27 at para 265.
[20]
Id.
[21]
George
Municipality v Vena and Another
1989
(2) SA 263
(A) at 271H-272B (
Vena
).
[22]
Sithole
v Native Resettlement Board
1959
(4) SA 115 (W).
[23]
Vena
above
n 21.
[24]
Affordable
Medicines Trust and Others v Minister of Health and Others
[2005]
ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) at para 49 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 para 56.
[25]
51
of 1977. Section 20 reads:
“
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.”
[26]
Yeko
v Qana
1973
(4) SA 735
(A) at 739E.
[27]
Above
n 6 and n 7.
[28]
Section
68(6)(b) of the Traffic Act.
[29]
Supreme
Court of Appeal judgment above n 4 at para 15 quoted at [5] above.
[30]
In
Dhanabakium
v Subramanian and Another
1943 AD 160
at 167 it was held:
“
As
was stated in
R v Morris
1 CCR 95 in a passage quoted with approval by Solomon J in
Johannesburg Municipality v Cohen’s
Trustees
1909 TS 811
at 823:
‘
It
is a sound rule to construe a statute in conformity with the common
law rather than against it, except where and so far as
the statute
is plainly intended to alter the common law.’”
See
also
S v Collop
1981 (1) SA 150
(A) at 164A-B. Of course, the application of this
principle is now subject to the Constitution. See
Fedlife
Assurance Ltd v Wolfaardt
[2001] ZASCA
91
;
[2002] 2 All SA 295
(A) at para16. This principle is consonant
with section 39(3) of the Constitution quoted above n 15.
[31]
See
Law
Society of South Africa and Others v Minister for Transport and
Another
[2010] ZACC 25
;
2011 (1) SA 400
(CC);
2011 (2) BCLR 150
(CC) at para
69.
[32]
Above
n 21 at 271D-E.
[33]
Above
n 14.
[34]
Id.
[35]
Gaertner
and Others v Minister of Finance and Others
[2013]
ZACC 38
;
2014 (1) SA 442
(CC);
2014 (1) BCLR 38
(CC) at para 86.
[36]
Section
21(1) of the Criminal Procedure Act provides:
“
Subject
to the provisions of sections 22, 24 and 25, an article referred to
in section 20 shall be seized only by virtue of a
search warrant
issued—
(a)
by a magistrate or justice, if it appears to such magistrate or
justice from information on oath that there are reasonable
grounds
for believing that any such article is in the possession or under
the control of or upon any person or upon or at any
premises within
his area of jurisdiction; or
(b)
by a judge or judicial officer presiding at criminal proceedings, if
it appears to such judge or judicial officer that any
such article
in the possession or under the control of any person or upon or at
any premises is required in evidence at such
proceedings.”
Section
22 reads:
“
A
police official may without a search warrant search any person or
container or premises for the purpose of seizing any article
referred to in section 20—
(a)
if the person concerned consents to the search for and the seizure
of the article in question, or if the person who may consent
to the
search of the container or premises consents to such search and the
seizure of the article in question; or
(b)
if he on reasonable grounds believes—
(i)
that a search warrant will be issued to him under paragraph (a) of
section 21(1) if he applies for such warrant; and
(ii)
that the delay in obtaining such warrant would defeat the object of
the search.”
[37]
Id.
[38]
Section
205(3) of the Constitution.
[39]
This,
of course, is subject to whether an enquiry into the unlawfulness of
possession may be held at all in instances where the
article
concerned may not be possessed lawfully under any circumstances.
[40]
Above
n 17.
[41]
Bothma
v Els and Others
[2009]
ZACC 27
;
2010 (2) SA 622
(CC);
2010 (1) BCLR 1
(CC) at paras 91-3.