Buchura and Another v Station Commander Orlando Police (SAPS) and Another (051123/23) [2023] ZAGPJHC 612 (1 June 2023)

Buchura and Another v Station Commander Orlando Police (SAPS) and Another (051123/23) [2023] ZAGPJHC 612 (1 June 2023)

The court found that the first applicant was in peaceful and undisturbed possession of the container prior to its seizure by or through the second respondent, a police officer. There was no evidence of any criminal process, arrest, or docket relating to the alleged theft. The applicant's ownership was supported by a cash invoice and was not disputed. The court accepted that, even if the container was not in the physical possession of the police, it was held by a third party on their behalf, as the seizure was effected in the course and scope of the second respondent's employment. The requirements for the mandament van spolie were met, and the applicants were entitled to restoration of...

Citation
[2023] ZAGPJHC 612
Parties
Applicant: Zenadin Mohammed Buchura; Applicant: Marothi Josias Mashashane; Respondent: The Station Commander Orlando Police (SAPS); Respondent: Officer Gumede (SAPS)
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
1 June 2023
Case Number
051123/23
Procedural Posture
Urgent Application / Final Order
Outcome
Application granted; order for restoration of possession to the first applicant.
Judges
C E Thompson
Legal Topics
Mandament Van Spolie, Possession, Unlawful Seizure
Civil Procedure Land and Property Mandament Van Spolie Possession Unlawful Seizure

Case Brief

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Parties

Zenadin Mohammed Buchura

Applicant

Marothi Josias Mashashane

Applicant

The Station Commander Orlando Police (SAPS)

Respondent

Officer Gumede (SAPS)

Respondent

Procedural Posture

Urgent Application / Final Order

Legal Issues

  1. 1 Whether the applicants are entitled to the return of the seized container.
  2. 2 Whether the seizure was lawful and in accordance with police procedures.
  3. 3 Whether the respondents are obliged to restore possession to the first applicant.

Ratio Decidendi

The court found that the first applicant was in peaceful and undisturbed possession of the container prior to its seizure by or through the second respondent, a police officer. There was no evidence of any criminal process, arrest, or docket relating to the alleged theft. The applicant's ownership was supported by a cash invoice and was not disputed. The court accepted that, even if the container was not in the physical possession of the police, it was held by a third party on their behalf, as the seizure was effected in the course and scope of the second respondent's employment. The requirements for the mandament van spolie were met, and the applicants were entitled to restoration of...

Court Disposition

Application granted; order for restoration of possession to the first applicant.

Orders

  • The respondents are ordered and directed to forthwith, but by no later than 13:00 on Monday 5 June 2023, return to the first applicant’s possession the 1/6M Container IMM – 20’ (6m) Standard General Freight Container seized and removed by or through the second respondent from the first applicant’s possession on 25...
  • No order as to costs.