Dyubeni v Minister of Safety and Security and Others (EL509/ 2005) [2008] ZAECHC 108 (1 July 2008)

FORM A

REPORTABLE

FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT

PARTIES: ANDILE DYUBENI Applicant

V

MINISTER OF SAFETY AND SECURITY & onrs Respondents

Case Number: EL509/2005

High Court: East London

DATE HEARD: 25 June 2008

DATE DELIVERED: 01 July 2008

JUDGE: GREENLAND A.J.

LEGAL REPRESENTATIVES –

Appearances:

for the Applicant(s): adv hinana

for the Respondent(s): Adv r w n brooks

Instructing attorneys:

Applicant: makhanya inc

Respondent(s): messrs bate, chubb

& dickson

CASE INFORMATION -

Nature of proceedings: APPLICATION

Topic: SPOLIATION

\

\Key Words: SEIZURE OF MOTOR VEHICLE

LAWFULLNESS

Applicant’s vehicle had been seized by members of SAPS

Lawfulness of seizure – reasonable suspicion that Applicant was in unlawful possession - onus on Respondents

Search of vehicle – search conducted as police officer recognised applicant as person previously arrested for theft of a motor vehicle – also motivated by discrepancy as to the colour of the vehicle – such factors not constituting a basis for reasonable suspicion – breach of right to privacy and dignity under the Constitution

IN THE HIGH COURT OF SOUTH AFRICA

(EAST LONDON CIRCUIT LOCAL DIVISION)

CASE NO: EL509/ 2005

In the matter between:

ANDILE DYUBENI APPLICANT

and

MINISTER OF SAFETY AND SECURITY 1ST RESPONDENT

BRANCH COMMANDER

VEHICLE SAFEGUARDING UNIT

OF EAST LONDON 2ND RESPONDENT

VEHICLE IDENTIFICATION UNIT

SOUTH AFRICAN POLICE SERVICE 3RD RESPONDENT

JUDGEMENT

GREENLAND AJ

Nature of the proceedings

[1] Whereas Applicant’s attorney at the hearing has not specifically characterised it as such, this is an application in terms of the possessory remedy provided by the mandament van spolie. In simple terms a person in peaceful possession of property who is dispossessed is entitled to approach the courts for summary relief to have possession restored. That the remedy can be availed against the State and its servants is correct in terms of Donges NO v Dadoo 1950(2) SA 321 (A) at 332.

Background

[2] It is common cause that a BMW vehicle in the possession of the Applicant was seized. The date and time of the seizure is, in effect, in dispute. What is not in dispute is that as a result the actions of a police officer Applicant was relieved of possession and this was transferred, in effect, to 1st Respondent as represented by 2nd and 3rd Respondents and such dispossession subsists.

Issue for determination

[3] The crisp issue for determination is whether or not the seizure was lawful. That much is common cause between counsel.

In particular, both counsel are agreed that this court is required to determine whether or not at the time of the seizure it can be found that reasonable grounds supporting a suspicion that the vehicle was stolen or that Applicant’s possession was unlawful existed in terms of an objective test.

See Ndabeni v Minister of Law & Order & Anor 1984(3) SA 500

It is also agreed that Respondents bear the onus of proving that the seizure was lawful, i.e., that at the time of seizure there existed reasonable grounds that it was liable for seizure as set out in a) above.

See for instance S v Mayekiso en andere 1996 (2) SACR 298; Alex Cartage (Pty) Ltd & Anor v Min of Transport & others 1986 (2) SA 838 (E).

Circumstances of seizure

[4] In the result the circumstances of the seizure are critical. A resolution of the central issue reposes in an analyses of such circumstances. Taking a line through the opposing affidavits what appears to have occurred, as a matter of probability, is –

On an unspecified date in June 2004 the Applicant was engaged in a quarrel with certain men over money. The quarrel finally reached a degree of settlement at the police station after intervention and mediation by members of SAPS.

Prior to settlement of the quarrel Police Sergeant Bam (“Bam”) of the SAPS had recognized the Applicant as a person he had previously arrested for vehicle theft. He therefore radioed through the vehicle’s registration details to SAPS central records and received a report that the colour of the vehicle being driven by Applicant did not match records.

It was at that point that Bam “formed the reasonable suspicion that there was as strong possibility that the motor vehicle had been stolen” as per his affidavit.

Bam states that he therefore asked the Applicant if he could search the vehicle telling him that he had a suspicion that the vehicle was stolen. Applicant claims that he was placed under duress with threat of arrest and therefore coerced into permitting the vehicle to be further examined.

As a result Bam found that the rivets affixing the tags holding the identification plates appeared to have been tampered with. The identification plates themselves did not appear to be the originals. He summoned Inspector Tyatyaza of the Vehicle Identification Unit. As it was already late the vehicle was detained overnight. The next day Inspector Tyatyaza confirmed that indeed the registration plates were not the originals.

Whereas there is some dispute as to the exact circumstances resulting in this sequence of events it is undoubtedly the case that the sequence of the cardinal features of the saga is as set out above.

Date and time of seizure

[5] From the above indisputable facts it can be concluded that –

Thereafter the vehicle remained under the effective control of the SAPS overnight. It is quite inconceivable that such detention occurred on account of un-coerced agreement on the part of the Applicant. There can be no doubt that he was put in a position where he had no control over the situation which situation was being dictated to him progressively as features of the vehicle became unsatisfactorily manifest.

In the result it must be concluded that the vehicle was de facto seized by the evening of the day on which it was examined by Bam. By seizure is meant that effective custody and control of the vehicle was transferred from the Applicant to the SAPS.

Factual justification for seizure

[6] At the time of such seizure there were three factors present purportedly providing justification for such seizure –

Bam’s recognition of the Applicant as a person he had previously arrested for vehicle theft; and

the disparity of the vehicle’s colour to that in central identification records; and

the appearance of false or tampered identification plates on the vehicle.

Lawfulness of seizure

[7] There can be little doubt that a) and b) in [6] above cannot constitute justification for seizure.

It is common cause that the Applicant had been cleared on a charge of theft as regards Bam’s earlier arrest of him. It is to state the obvious to say that he was therefore entitled to be treated as a person possessed of full rights as a citizen including the right to equality before the law and action on the part of law enforcement agencies. Viewing and treating him with suspicion is simply impermissible as it violates his right to equality before the law. See INVESTIGATING DIRECTORATE: SERIOUS ECONOMIC OFFENCES AND OTHERS v HYUNDAI MOTOR DISTRIBUTORS (PTY) LTD AND OTHERS; IN RE HYUNDAI MOTOR DISTRIBUTORS (PTY) LTD AND OTHERS v SMIT NO AND OTHERS [2000] ZACC 12; 2001 (1) SA 545 (CC).

A colour change to a vehicle can never be a basis for a reasonable suspicion. Vehicles undergo such change for any number of reasons and persons effecting such changes must be viewed as indulging in perfectly normal behaviour. A suspicion induced simply on account of a vehicle being re-sprayed cannot be regarded as reasonable. To do so is to deny the owner of the vehicle in question the right to equality before the law, i.e., to subject any person who re-sprays his or her vehicle to the risk of summary search without warrant.

The above conclusions are an inevitable product of giving effect to the provisions of sections 9 and 10 of the BILL OF RIGHTS in Chapter 2 of the Constitution. These sections require that a person be treated without discrimination before the law and that his or her dignity be respected.

Search of private property

[8] The existence of identification plates that appeared to have been tampered with as per [6] c) above certainly justified the founding of a reasonable suspicion that Applicant was in unlawful possession.

However Bam only made the discovery after having, in effect, searched the vehicle. His conduct constituted a search of private property. That is necessarily the case.

The starting point is to recognize the sacred provisions of the Constitution. The right to privacy is enshrined Chapter 2, The Bill Of Rights of the Constitution. Therein is Section 14 which reads:

“14 Privacy

Everyone has the right to privacy, which includes the right not to have-

(a) their person or home searched;

(b) their property searched;

(c) their possessions seized; or...”

There can be no doubt that Bam’s search of the Applicant’s motor vehicle was an invasion of privacy in that its purpose was to possibly satisfy a hope of finding proof of criminality. In so far as this may breach section 14 of the Constitution such apparent breach is sanctioned under section 36 of the Constitution which provides –

“36 Limitation of rights

(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including-

(a) the nature of the right;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relation between the limitation and its purpose; and

(e) less restrictive means to achieve the purpose.

(2) Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.”

In the circumstances it is now trite that any statute invoking the limitation must be restrictively interpreted. Of particular relevance is –

MINISTER OF FINANCE AND OTHERS v RAMOS 1998 (4) SA 1096 (C) at 1101 G – H –

“In this connection it should also be borne in mind that where a party opposing an application for a mandament van spolie relies upon a statutory provision in order to support an averment that he was entitled thereby to deprive the applicant of his possession, without recourse to due process of law, and that such deprivation or possession was therefore lawful, such statutory provision must be restrictively interpreted. A person who invokes the protection of such a statutory provision will need to establish that he acted strictly within its terms. (See Rikhotso v Northcliff Ceramics (Pty) Ltd and Others 1997 (1) SA 526 (W) at 530F; George Municipality v Vena and Another 1989 (2) SA 263 (A) at 271E--F.)”

For these reasons vehicles are normally only searched in terms of strict rules regarding the setting up of road blocks after issuance of a certificate authorising such action. Put succinctly the Respondents are necessarily constrained to bring the Court, as custodian of the rights enshrined in the Constitution, into their confidence and disclose the information so that the Court itself can determine whether or not the limitation of the right to privacy in each case was justified.

With that contention I am in wholehearted agreement. To leave the issue of such limitation within the private undisclosed discretion of individuals or entities would, in effect, emasculate the intention and spirit of the Constitution and leave sacred protections exposed to the whim of persons who may be driven by motives ranging from mala fide to bona fide but misguided.

It seems to me that Bam acted bona fide but was misguided in his approach. A search and seizure without warrant is only sanctioned under section 20 of the Criminal Procedure Act, No. 51 of 1977 (“the CPA”) which 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.'

As found in par [7] above Bam’s suspicions about the Applicant as a human being and about the colour change to the vehicle did not constitute factors that can be sanctioned as giving rise to a reasonable suspicion justifying violation of the Applicant’s rights to equality and dignity.

Instructive on the underlying principles and their application is INVESTIGATING DIRECTORATE: SERIOUS ECONOMIC OFFENCES AND OTHERS v HYUNDAI MOTOR DISTRIBUTORS (PTY) LTD AND OTHERS;

IN RE HYUNDAI MOTOR DISTRIBUTORS (PTY) LTD AND OTHERS v SMIT NO AND OTHERS, supra which in the headnote reads –

“Held, that the right to privacy guaranteed in s 14 of the Constitution did not relate solely to the individual within his or her intimate space. When persons moved beyond this established 'intimate core', they still retained a right to privacy in the social capacities in which they acted. Thus, when people were in their offices, in their cars or on mobile telephones, they still retained a right to be left alone by the State unless certain conditions were satisfied.” (my underlining)

There are also a plethora of precedents all giving effect to the above. Bam had no right to proceed to search the vehicle of the Applicant. Neither could he have believed, as argued, that a Magistrate would have granted him a search warrant in terms of the factors listed as a) and b) in par [7] above. See S v Mayekiso en andere, supra.

Order

[9] In the circumstances the application succeeds and it is ordered that –

the seizure of the BMW Vehicle from the Applicant in June 2004 is declared to have been unlawful; and

the said vehicle is to be returned to the Applicant within seven (7) days of this order; and

Respondents are ordered to pay costs of this application jointly and severally the one paying the other to be absolved.

_________________________

GREENLAND AJ

DATE HEARD: 25 june 2008

JUDGMENT DELIVERED: 01 July 2008

FOR APPLICANT: adv hinana

INSTRUCTED BY: makhanya inc

2nd floor werners bld

argyle street

east london

FOR RESPONDENT: Adv r w n brooks

INSTRUCTED BY: messrs bate, chubb

& dickson

norvia house

western avenue east london

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