Chauke v Minister of Police and Another (27141/2021) [2021] ZAGPPHC 637 (29 September 2021)

IN THE HIGH COURT OF SOUTH AFRICA(GAUTENG DIVISION, PRETORIA)

REPUBLIC OF SOUTH AFRICA

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED

DATE: 29 SEPTEMBER 2021

Case Number: 27141/2021

CHRISTOPHER CHAUKE Applicant

And

THE MINISTER OF POLICE First Respondent

ANNERDALE STATION COMMANDER

SOUTH AFRICAN POLICE SERVICE Second Respondent

JUDGMENT

JANSE VAN NIEUWENHUIZEN J

[1] On 31 May 2021 the applicant issued this application on an urgent

basis claiming the following relief:

“2. The Respondent is ordered to forthwith and with immediately restore the applicant possession of Toyota quantum bearing vehicle registration number (VIN) AHTSS22P307010556 by providing him with the keys thereof and delivering the said motor vehicle to the Applicant;

3. The Respondent seizer and continued impounding of the applicant vehicle be declared unlawfully;

4. The Respondents are jointly and severally directed to pay the costs of this Application on attorney and client scale” (sic)

[2] The matter was set down for 10 June 2021 on which date the parties

settled the matter in terms of a court order issued by Sardiwalla J, in the following terms:

“2. The Respondents are ordered to restore the Applicant’s possession of Toyota Quantum bearing vehicle registration number (VIN) AHTSS22P307010556 by providing him with the keys thereof and delivering the said motor vehicle to the Applicant on or before the 16th of June 2021.

3. Costs are reserved and to be referred to the normal motion court.”

[3] Consequently, only the issue of the costs of the application is to be determined.

INTRODUCTION

[4] Insofar as the costs of the application are concerned, it is apposite

to note that the order agreed upon by the parties only pertains to the Mandament van Spolie relief claimed by the applicant. In settling the matter, the applicant abandoned his claim for a declarator contained in prayer 3 of the Notice of Motion.

[5] In the normal course a party that is successful will be entitled to his/her costs. The respondents, however, contend that the reason for conceding to the restoration of the applicant’s vehicle, does not entitle the applicant to a cost order.

BACKGROUND

[6] The applicant stated that he purchased the Toyota Quantum (“the

vehicle”) on 14 January 2019 for business purposes. Since 14 January 2019 he has been paying the monthly instalments towards the purchase price of the vehicle and has been in possession of the vehicle.

[7] On 9 May 2021 he was conveying passengers to Limpopo when he was

stopped near Modimolle by officials of the South African Police Service. The applicant was informed by the officials that the vehicle

was reported stolen at the Annerdale Police Station and needs to be impounded for further investigation. He was advised that a case of theft was opened against him at the Annerdale Police Station and that he had to present himself at the police station.

[8] The applicant informed the officials that he was the owner of the

vehicle and proceeded to produce the Certificate of Registration of the vehicle in his name. According to the applicant, the police officials accepted his explanation, but indicated that they cannot release the vehicle until they receive an instruction from the Annerdale Police Station to do so.

[9] The applicant stated that he returned to Gauteng on the 11th of July (the date is clearly incorrect and should most probably be the 11th of May) and proceeded to the Annerdale Police Station to demand the return of his vehicle. He once again provided the Certificate of Registration to the investigating officer as proof of ownership. The investigating officer accepted the document and provided the applicant with the case number in respect of the charge of theft against him. The applicant was informed to return in two days to collect his vehicle.

[10] On 12 May 2021 the applicant returned to the police station and was told by the investigating officer that his vehicle cannot be released. The investigating officer informed the applicant that he first has to take the matter to court to confirm that the vehicle may be released and that the applicant should return in five working days.

[11] The applicant returned on 26 May 2021 and was told that his vehicle can still not be released. The applicant was informed that the court has not confirmed the release of the vehicle and that he will be contacted once a confirmation from the court is received.

[12] The applicant explained that he desperately needed his vehicle to earn an income and decided to consult with an attorney to secure the release of his vehicle. On 26 May 2021, the applicant’s attorney forwarded a letter to the Station Commander of the Annerdale and Modimolle Police Stations, to the Provincial Police Commissioner and to the National Police Commissioner demanding the release of the applicant’s vehicle.

[13] No response was forthcoming and the urgent application was launched.

[14] The respondents’ answering affidavit was deposed to by Philip Tsemeng Lethuba, a legal officer situated at the South African Police Service head office. Mr Lethuba had no personal knowledge of the applicant’s interactions with the investigating officer and could only rely on documents provided to him. As a result, the answering affidavit contained mostly hearsay, which is inadmissible.

[15] A so called “Circulation System-vehicle document” dated 15 May 2021 was attached to the answering affidavit which indicated the applicant’s vehicle was sought in relation to a theft charge.

[16] An undated “Statement by Suspect” purportedly deposed to by the applicant is also attached to the answering affidavit. In the Investigation Diary, a note appears with a stamp from the National Prosecuting Authority, dated 7 June 2021, that the person who is the author of the note declined to prosecute. Most probably the charge of theft against the applicant.

Legal principles

[17] In order to succeed with a Mandament van Spolie application, the applicant has to allege and prove that:

17.1 he was in in possession of the property; and

17.2 the respondents deprived him of the possession forcibly or wrongfully without his consent.

[See: Erasmus Superior Court Practice, Van Loggerenberg, 2nd edition, D7-6]

[18] It is not in dispute that the applicant was in possession of the vehicle and that the respondents deprived him of his possession. The question then arises whether the deprivation was unlawful. The applicant submits that the deprivation of his vehicle was unlawful and relies on the Constitutional Court authority, Ngqukumba v Minster of Safety and Security 2014 (5) SA 112 CC wherein it was held that a seizure that is not in compliance with the Criminal Procedure Act 51 of 1977 (“the Act”), is unlawful.

[19] The respondents, relying on the provisions of section 20, 21 and 22 of the Act, avers that the seizure was lawful.

[20] In terms of section 20 of the Act, the State may seize anything which is concerned in the commission of an offence, which may afford evidence of an offence and which is intended to be used in the commission of an offence.

[21] Section 21, however, provides that an article may only be seized in terms of section 20 by virtue of a search warrant issued by a Magistrate or a Judge.

[22] Section 22 does allow for the seizure of an article without a warrant under the following circumstances:

“(a) if the person concerned consents to the search for and 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 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.”

[23] In casu the respondents do not rely on a search warrant issued by a Magistrate or Judge and no such warrant has been placed before the court.

[24] Insofar as the respondents rely on the provisions of section 22, the respondents have dismally failed to allege and proof:

24.1 the applicant consented to the seizure of his vehicle. To the contrary the applicant’s conduct evidences exactly the opposite; or

24.2 that the officer who seized the vehicle did so in terms of the requirements of section 22(b). The official that seized the applicant’s vehicle did not depose to an affidavit and his reasons for doing so is glaringly absent.

[25] In the absence of compliance with the strict provisions of the Act, the seizure of the applicant’s vehicle is, on the authority of the Ngqukumba case supra, unlawful.

[26] In the premises, the applicant was entitled to the Mandament van Spolie order and as the successful party should be awarded the cost of the application.

ORDER

[27] In the premises, I grant the following order:

The respondents are ordered to pay the costs of the application.

N. JANSE VAN NIEUWENHUIZEN

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

DATE HEARD PER COVID19 DIRECTIVES: 31 August 2021

(Virtual hearing.)

DATE DELIVERED PER COVID19 DIRECTIVES: 29 September 2021

APPEARANCES

Counsel for the Applicant:

Advocate M. Ndubani

Instructed by:

Maladzhi and Sibuyi Attorneys

Counsel for the Defendant:

Advocate V. Mukwevho

Instructed by:

State Attorneys Pretoria