Kwagile v Minister of Safety and Security and Another (378/2010) [2013] ZAFSHC 35 (28 February 2013)

FREE STATE HIGH COURT, BLOEMFONTEIN

REPUBLIC OF SOUTH AFRICA

Case No. : 378/2010

In the matter between:-

POGISO GODFREY KWAGILE ...................................................Plaintiff

and

THE MINISTER OF SAFETY & SECURITY ...................First Defendant

SNR SUPERINTENDENT E.S. MOFOKENG ............Second Defendant

_____________________________________________________

JUDGMENT BY: MATLAPENG, AJ

HEARD ON: 2 NOVEMBER 2012

DELIVERED ON: 28 FEBRUARY 2012

INTRODUCTION

[1] This matter started life as a civil suit wherein the plaintiff sued the defendant for damages in respect of an alleged malicious prosecution and wrongful attachment of goods. However on the day of trial and pursuant to an agreement by the parties the matter proceeded by way a stated case in terms of rule 33(1) and (2) of the Uniform Rules of Court. This was primarily because to a large extent the facts of this matter are common cause between the parties.

[2] In an attempt to expedite the resolution of this matter the parties agreed further that the issue of merits be separated from quantum in terms of rule 33(4). After a careful consideration of the submissions made by both counsel, I duly made an order for the separation in terms of the rule aforesaid. This judgment deals with the merits only. The issue of quantum was postponed sine die.

THE PARTIES

[3] 3.1. The plaintiff is Pogiso Godfrey Kwagile, an adult male qualified civil engineer and a businessman.

3.2. The first defendant is the Minister of Safety and Security cited in his capacity as the head of the South African Police Service.

3.3. The second defendant is Superintendent Mofokeng, a major male policeman employed by the South African Police Service and who was acting at all relevant times within the course and scope of his employ with the first defendant.

FACTUAL BACKGROUND:

[4] The factual background and time line in this matter as agreed to by the parties is as follows:

4.1. The immovable property known as site 3074 Selosesha, Thaba Nchu (the property) was sold at a sale in execution on 12 February 2008 to one Boitumelo Molosiwa. On 28 August 2008 Molosiwa sold the property to Batshweneng Family Trust. The property was at all relevant times licensed premises in terms of the Liquor Act 27 of 1989 (the Act). The property consisted of the following licensed premises: Tshwaraganang Bar Lounge (on consumption) with Licence No FSP/022570 and Tshwaraganang Liquor Store with Licence No FSP/022329.

4.2. On 28 October 2008 Molosiwa made an application in terms of s113 of the Act to transfer the licences of the licensed premises which were situated on the property to the plaintiff. The plaintiff at all relevant times conducted business from the premises known as Tshwaraganang Lounge (Letabong Jazz Oasis). The licensee on the licence was Tshwaraganang Trading Co (Pty) Ltd. The holder of the two licences was an entity known as Tshwaraganang Trading CC. During March 2009 an entity known as Bloemwater obtained judgment against Tshwaraganang CC as a result of which the Sheriff Magistrates’ Court Thaba Nchu attached the said liquor licences.

4.3. On 3 April 2009 the plaintiff launched a new application in terms of s19 of the Act for a special licence. On 20 April 2009 the plaintiff purchased the liquor licences from the Sheriff in consequence of which on 23 April 2009 the Sheriff Thaba Nchu applied to the Free State Liquor Board for the transfer of the licences in terms of s113 of the Act to the plaintiff.

4.4. On 28 April 2009 the plaintiff’s attorney forwarded a letter to the second defendant as confirmation of the fact that the plaintiff has made an application for the transfer of the liquor licence in terms of s113 of the Act.

4.5. On 21 June 2009 the second defendant in the company of various police officers seized the plaintiff’s liquor supply on the property and in respect of Letabong Jazz Oasis. He claims that he was acting in terms of the provisions of the Act and the Criminal Procedure Act, 51 of 1977. The plaintiff disputes this authority. The seizure was conducted without a warrant of seizure and without the plaintiff’s consent.

4.6. Neither the plaintiff nor any of his employees were arrested during this operation. The second defendant laid a charge against the plaintiff on 21 June 2009 (same day that the liquor was impounded for contravening s154(1)(a) of the Act).

4.7. In July 2009 the public prosecutor (PP) of Magistrate Thaba Nchu and the Director of Public Prosecutions (DPP) Free State declined to prosecute the plaintiff. When the seizure took place on 21 June 2009 the application for the transfer of licences to the plaintiff had not been finalised. It was only effected on 21 September 2012 after this court issued a mandamus against the Free State Liquor Board.

4.8. The plaintiff avers (which is disputed) that a practice has developed since the inception of the Act in terms whereof prospective licence holders could trade pending the finalisation of the application for the transfer of the licence in terms of s113 of the Act.

[5] The questions to be determined in this matter as agreed to by the parties are:

5.1. Whether the plaintiff, as the prospective licence holder of licence number 022570 awaiting transfer of the licence in terms of s113 of the Act, is entitled to conduct the business of the sale of liquor in terms of the said licence pending the transfer of the licence into his name from the licensed premises as at 21 June 2009;

5.2. Whether the defendants were entitled to seize the liquor on the premises from a prospective licence holder who is awaiting transfer in terms of s113 using the provisions of the Act and the Criminal Procedure Act;