Guga v Minister of Safety and Security and Others (2268/09) [2010] ZAECMHC 24; [2011] 1 All SA 413 (ECM) (9 September 2010)

IN THE HIGH COURT OF SOUTH AFRICA

Eastern Cape High Court: Mthatha

CASE NO. 2268/09

Reportable

In the matter between:

MGCINENI GUGA ….............................................................Applicant

And

MINISTER OF SAFETY &

SECURITY …...........................................................................1st Respondent

THE STATION COMMISIONER

MTHATHA CENTRAL POLICE STATION …..................2nd Respondent

COMMANDING OFFICER VEHICLE SAFE

GUARD UNIT, GROUP 46 MTHATHA …..........................3rd Respondent

JUDGMENT

PAKADE, ADJP.:

[1] This application concerns the seizure of the applicant’s motor vehicle by the members of the South African Police service in a road block. At the time of its seizure, the motor vehicle, a Toyota Venture with registration letters and number DRH 397 EC, was in the possession of Mr Sinethemba Chaka, a duly licensed authorised driver thereof employed by the applicant.

[2] In this application the applicant seeks declaratory orders setting aside the seizure of his motor vehicle and the certificate purporting to authorise it issued in terms of s 13(8) of the Police Act1. The applicant also seeks restraining order interdicting the respondents from further unlawfully seizing the motor vehicle from

the possession of the applicant as well as a mandamus that they should release the said motor vehicle to the applicant.

[3] If the applicant succeeds on the two declarations the motor vehicle should be returned to the applicant unless the respondents can show that he may not lawfully possess it2.

[4] The respondents oppose this application and have filed of record, an answering affidavit deposed to by Inspector Siyabulela Edward Mtshengu, whom, for the sake of brevity, I shall refer to as (“Mtshengu”). Confirmatory affidavits to Mtshengu’s answering affidavit deposed to by Captain Kwezi Kwanini (Kwanini) and senior superintendent Monde Nqadini (Nqadini) were also filed of record. After filing a replying affidavit the applicant successfully brought a joinder application for the purpose of joining Nqandini and by order of this Court issued by Maqubela AJ he was joined as the 4th respondent in this application. As he was granted leave to do so in the same order Nqadini deposed to an affidavit headed “Respondents’ second answering affidavit”.

[5] In both answering affidavits the respondents sought to justify the seizure of the applicant’s motor vehicle in discharge of the onus which rests on them by relying on the certificate issued by Nqadini in terms of section 13(8) of the Police Act.

[6] A seizure of property is prima facie unlawful hence to be justified because section 25 of the Constitution3 protects every person’s right to property from being interfered with by seizure or being deprived of his property except where such seizure or deprivation is done in terms of the law of general application.

[7] I will return to the defence raised by the respondents in justification of the seizure. It suffices right from the onset to set out the applicant’s case as particularised in the founding papers.

[8] The applicant is a taxi businessman in Tsolo. He purchased the motor vehicle in question from Mr Thozamile Calaza for the purpose of using it as a taxi. He employed a driver, Mr Sinethemba Chaka, to convey passengers between Tsolo and Maclear. He also contracted with the Tsolo DRC School to convey school children to and from school.

[9] After purchasing the motor vehicle, he took it to the Motor Vehicle Theft unit of the South African Police Service for a clearance certificate. That certificate is attached as MG1 to the founding affidavit.

[10] On the 20th August 2009 the applicant’s motor was seized from his driver in a police road block in Tsolo and taken to the Police Station. The applicant later went to the Police Station in Tsolo and he not only brought to the police the person from whom he acquired the motor vehicle but also showed them the Police clearance certificate issued by them. That could not, however, persuade the Police to release or deter them from seizing the motor vehicle.

[11] In their justification of the seizure, the respondents rely on the fact that the purpose of the road block was to check for stolen motor vehicles by examining engine and chassis numbers thereof. In contending that the certificate authorising the setting up of the road block is valid, Nqadini relied on Mtshengu’s answering affidavit and on the information embodied in the certificate. The information embodied in Mtshengu’s answering affidavit is that the certificate which authorised the road block was signed and issued by Nqadini in terms of section 13(8) of the Police Act.

[12] In the second answering affidavit, Nqadini had a second bite in the cherry to disclose the information on the strength of which he issued the authorisation certificate. In paragraph 7.1 thereof he asserts his delegated powers to authorise the setting up of a road block. He further states in paragraph 7.2.1 that he issued the certificate after he had satisfied himself with the reasons and the cause for conducting the road block as set out in the documentation with which he was furnished. He averred in paragraph

7.4 that before issuing the certificate he satisfied himself on the information which was placed before him that it was reasonable in the circumstances to authorise the setting up of the road block.

[13] Whether a seizure of an item is done on the authority of a seizure warrant issued under section 21(1)(a) of the Criminal Procedure Act or under section 13(8) certificate authorising the road block, it must comply with the provisions of section 20 of the Act for it to be lawful.

[14] The police are vested with general powers to seize an item which is concerned in or on reasonable grounds believed to be concerned in the commission or suspected commission of an offence or which may afford evidence of the commission of an offence (section 20

of the Act). Section 21(1)(a) authorises a magistrate or justice of the peace to issue a search warrant for the seizure of an article

referred to in section 20 if it appears to him that from information on oath there are reasonable grounds for believing that such article is in the possession or under the control or upon any person or upon or at any premises within his area of jurisdiction.

[15] Section 13(8) of the Police Act (which is relevant in this application) regulates the setting up of police road blocks and the procedure to be followed in a road block. Its relevant provisions briefly provide as follows:

(a) The National or Provincial Commissioner may, where it is “reasonable in the circumstances” in order to exercise a power or perform a function referred to in section 215 of the Constitution in writing authorise a member under his or her command

to set up a road block on any public road in a particular area.

The written authorisation must specify the date, approximate duration place and object of the proposed action.

Any member authorised under paragraph (a) may set up or cause a road block to be set up on any public road in the area so specified.

Any member may, without warrant-

(i) in the event of a road block set up in accordance with paragraph (c) search any person or vehicle stopped at such road block and seize any article referred to in section 20 of the Criminal Procedure Act found by him or her in the possession of such person.

[16] The element of reasonable suspicion in section 20 of the Act is a common jurisdictional factor which precedes the issuing of both a search warrant in terms of section 21(1)(a) and a certificate in terms of section 13(8) of the Police Act. The authorities that guide the court in the interpretation of section 20 apply, mutatis mutandis, in the interpretation of a search warrant and a section 13(8) certificate. These pieces of legislation require strict interpretation. This view finds support in the judgment of the Cape Provincial Division: Minister of Finance & Others v Ramors4 in which the following observation was made:

“In this connection it should be borne in mind that where a party opposing an application for a mandament van spolie (the seizure of a vehicle) 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 of possession was therefore lawful, such statutory provision must be restrictively interpreted. A person who invokes a protection of such a statutory provision will need to establish that he acted strictly within its terms”.

[17] The need for strict interpretation of a statutory provision which authorises the seizure of a person’s property arises from the fact that it limits the individual right to property which is protected by the Constitution5. The courts of this country recognised long before the advent of the Constitutional dispensation that search and seizure legislation

constitutes an unacceptable invasion into the rights of individuals, thus calling for strict interpretation thereof. It was required even then that the search and seizure should comply strictly with the seizure warrant. This view is confirmed in the Transvaal Provincial Division judgment in De Wet & Others v Williers NO and Another in which the following dictum appears6:

“To enter premises, to search those premises, and to remove goods therefrom is an important invasion of the rights of an individual. The law empowers police officers to infringe the rights of citizens in that way provided that they have a legal warrant to do so. They must act within the terms of that warrant. When a dispute arises as to what power is conferred by the warrant the warrant must be construed with reasonable strictness, and accordingly there is no reason why it should be read otherwise than in the terms in which it is expressed.”

[18] The test to determine the existence of reasonable grounds which led to the seizure is objective7 and in this judgment Didcott J stated the following about section 20:

“The second respondent no doubt thought there were reasonable grounds for the belief he held. That, however, was by the way. Section 20 of the Criminal Procedure Act calls for the existence in fact of reasonable grounds. And whether these exist in a given case must be determined objectively. Milner J once said:-

‘There can be reasonable cause to believe where…., considered objectively there are reasonable grounds for the belief…..It cannot be said that an officer has reasonable cause to believe merely because he believes he has reasonable cause to believe.”

[19] In Singwebedlana v Minister of Police8, it was held by Davis AJ that it is for the Court to determine whether objectively there are reasonable grounds for believing that an article sought to seized in terms of the section is concerned in the commission or suspected commission of an offence. The court further held that there should be sufficiently detailed information placed before the Court on which such belief is based.

[20] The issue to consider is therefore whether on the information placed before the court by Mtshengu, Kwanini and Nqadini, as set out in paragraph[11] and [12] above, is sufficient to establish, objectively , reasonable circumstances as envisaged in section 13(8)(a) of the Police Act, justifying the issue of the authorisation certificate for the setting up of the road block.

[21] Nothing further can be gleaned from the information furnished to Nqadini as creating reasonable circumstances justifying the issuing of the authorisation certificate to Kwanini to set up the road block in Tsolo. Neither is information contained in the certificate evidence from which Nqadini could have inferred the existence of reasonable grounds justifying the issuing of the section

13(8) (a) certificate. The information in the certificate is no more than conclusion arrived at by Nqadini from undisclosed information on the basis of which he acted.

[22] Mr Gagela, counsel for the respondents, submitted that Nqadini acted on the requirements of section 215 of the Interim Constitution9 which are the prevention of crime; the investigation of any offence or alleged offence; the maintenance of law and order and the preservation of the internal security of the Republic of South Africa. I have no doubt that these are general constitutional functions of the members of the South African Police Service which have to be carried out subject to section 20 of the Act. To be exact, in order for a policeman to act in terms of section 215 of the Interim Constitution, there must be information placed before him, which he must in turn place before the court, which made him to believe on reasonable grounds that he must seize an item for the prevention of crime; investigation of an offence or alleged offence; the maintenance of law and order and the preservation of internal security of the Republic. That information has not been placed before the Court. The existence of the reasonable grounds must be before the search and seizure and must justify the search and seizure.

[23] In the unreported judgment of this Court10, where the policeman had relied on a search warrant issued on the information furnished to them by an informer that the motor vehicle

was a stolen item, Pakade J made the following dictum11:

“That information which was furnished to them was not furnished on oath as the name of the informer was not even disclosed to the Court……..The mere saying so by the informer that the applicant’s motor vehicle is stolen does not establish, objectively, a reasonable ground for the belief that the motor vehicle was indeed a stolen article and as such liable to be seized. Apart from the information that the motor vehicle is kept in a locked garage during the day and used at night, there is no other information at the disposal of Ntlantsana before the search. The only information about the tampering of the chassis numbers was

obtained after the search. The search warrant which was issued on the application of Ntlantsana cannot justify the search which was conducted contrary to the provisions of section 20 even if it had resulted in the finding of suspicious features in the motor vehicle such as tampering with the chassis numbers.”

[24] Just as in the Zinja case, supra, upon seizure of the applicant`s motor vehicle, the police found some discrepancies on its engine and chassis numbers. These discrepancies induced reasonable belief in the mind of Mtshengu and Kwanini that the applicant`s motor vehicle was stolen. As said above, the reasonable belief entertained after the search cannot justify the search and seizure which was otherwise unlawful.

[25] In my respectful view, therefore the respondents have not shown that the applicant`s motor vehicle is an item to be seized under s 13(8) of the Police Act as they failed to satisfy the requirements of s 20 of the Act.

[26] Now that I have found that the search and seizure were unlawful, I have to consider the second leg of the same coin, namely, whether or not the applicant can lawfully possess the motor vehicle notwithstanding the finding of discrepancies on its engine and chassis numbers. In this respect the police must establish a case in terms of section 31(1)(a) of the Act. Those provisions are that if no criminal proceedings are instituted in accordance with the article or that such article is not required at the trial for purposes of evidence or an order of the court, the article must be returned to the person from whom it was seized if such person may lawfully possess it. Much as an applicant affected by the s 20 seizure is entitled to the return of goods, the applicant who is affected by the s 13(8) of the Police Act seizure is entitled to the return of the goods unless the State can prove on a balance of probabilities that the possession will be unlawful. The respondents have not placed evidence before the Court showing that the motor vehicle is required for purposes of trial or an order of court. Although the evidence of the respondents is that the engine and chassis numbers of the motor vehicle had some discrepancies, there is no evidence that these are not discrepancies which were cleared by the police earlier when the applicant took the motor vehicle to them for a checking and issuing of clearance certificate. The applicant’s version that the motor vehicle had history of having been stolen has not been gainsaid by the respondents, in which event they should have refuted that and also put up an averment that the discrepancies appearing in the engine and chassis numbers were caused subsequent to the issuing of the clearance certificate.

Order:

[27] In the circumstances, I make the following Order:

That the search and seizure of the applicant’s motor vehicle, being a Toyota venture with registration letters and number DRH 397 EC is declared unlawful and is hereby set aside;

That the respondents are hereby directed to forthwith release the aforesaid motor vehicle to the applicant.

That the respondents shall pay costs of suit jointly and severally, the one paying the other to be absolved.

L. P. PAKADE

JUDGE OF THE HIGH COURT

Attorney for the Applicant : Mr M. Notyesi

Instructed by Mvuzo Notyesi Inc.

Applicant’s Attorneys

2nd Floor – T. H. Madala Chambers

14 Durham Street

MTHATHA

Counsel for the Respondent : Adv Gagela

Instructed by The State Attorney

Respondents’ Attorneys

No. 94 Sission Street

Broadcast House

Fortgale

Matter heard on : 17 August 2010

Judgment delivered on : 09 September 2010

1Act 68 of 1995

2Section 31(1)(a) of the Criminal Procedure Act, 51 of 1977(the Act)

3Act 108 of 1996

41998(4)SA 1096(C) at 1101 G-H

5Section 14 of the Constitution provides that “Everyone has the right to privacy which includes the right not to have their property searched; their possessions seized”.

5Section 14 of the Constitution provides that

“Everyone has the right to privacy which includes the right not to have

their property searched;

their possessions seized”.

61953(4)SA 124(T) at 127B

7Ndabeni v Minister of Law and Order 1984(3) SA 500(1) & CLD at 511 D-F

8Case no.274/94 Unreported judgment of Davis AJ of this Court.

9Act 200 of 1993

10Khotso Zinja v Minister of Safety & Security & Ors Case No: 147/05 delivered on 24 November 2005

11Page 5 paragraph [12] & page 8 paragraph [19] & page 9 paragraph [20]