Madlavu v Minister of Safety and Security and Others (1273/08) [2009] ZAECMHC 22; 2010 (1) SACR 486 (ECM) (1 December 2009)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, MTHATHA)

CASE NO. 1273/08

In the matter between:

NKOSIYAZI WELLINGTON MADLAVU Applicant

and

MINISTER OF SAFETY AND SECURITY First Respondent

THE STATION COMMISSIONER,

MTHATHA CENTRAL POLICE Second Respondent

SUPERINTENDENT HINTSA Third Respondent

J U D G M E N T

SANGONI ADJP:

The applicant herein is Nkosiyazi Wellington Madlavu who resides at Mvumelwano location in the district of Qumbu in the province of the Eastern Cape.

The first respondent is the Minister of Safety and Security for the Government of the Republic of South Africa, cited in these proceedings in his capacity as such.

Second respondent is the station commissioner at Mthatha Central Police Station. He is also cited in his official capacity “on the basis that the motor

vehicle that forms the subject of these proceedings, is being kept at the police station of which he is in charge”.

The third respondent holds a rank of superintendent in the South African Police Service (SAPS). At the time of the incident he was a station commander at Qumbu Police Station.

These proceedings initially kicked off on 8 September 2008 when the applicant launched an application against the first and second respondents seeking an order, in the main, to declare unlawful the “search, seizure and continued detention of the applicant’s motor vehicle to wit, a Toyota Hi-Ace with registration letters and numbers BRB 980 EC (the vehicle)”.

The basis for the application is/was on mandament van spolie. The averments were that the members of the SAPS met with the applicant’s driver and dispossessed the latter of the vehicle; they claim that they were searching for it for some time and they had received information that it had been stolen.

The first two respondents filed opposing affidavits, wherein it is alleged that on 5 December 2007 the members of the SAPS were manning a properly constituted roadblock to search and seize stolen vehicles, illegal firearms and prohibited drugs. It was then in the course of that roadblock that the vehicle in question was seized by the police. The said roadblock, so it is stated, has been authorised in terms of section 13(8)(a) of the South African Police Service Act 68 of 1995 (the Act) by the third respondent.

Of primary importance for purposes of this judgment, the applicant challenges the validity of the authorisation certificate issued by the third respondent, purportedly in terms of section 13(8)(a) of the Act. The basis of such challenge is that the certificate is vague, general and it lacks particularity. This subsection 8(a) provides: -

“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 roadblock or roadblocks on any public road in a particular area or set up a checkpoint or checkpoints at any public place in a particular area.”

Initially there were other grounds raised but later abandoned. Reasons thereof will become clear later. On 28 May 2009 this court granted an order at the request of the applicant to introduce an additional prayer that reads:

“That the certificate issued by the 3rd respondent in terms of section 13(8)(a) of the South African Police Service Act 1995 (Act 68 of 1995) being annexure ‘TNM1’ to the respondents’ answering affidavit, be declared invalid and of no force and effect and be set aside as nullity”.

Mr Mtalana a police captain in the SAPS attached to the Vehicle Identification Unit deposed to the answering affidavit. He states therein that he was in charge of the roadblock referred to above, which was held at Ridge Stop on the N2 National Road between Qumbu and Mount Frere. In keeping with what he says in the founding affidavit, the applicant denies there was a roadblock. He specifically denies that the police held a roadblock at Ridge Stop. According to the applicant the vehicle was seized at a spot just after passing Luqolweni. There is nothing specific that is detailed regarding the location of the spot where there was a roadblock or where the vehicle was seized. There also no details to help establish where Ridge Stop is located.

At argument stage Ms Da silva, Counsel for the applicant abandoned all points raised by the applicant, and confined the applicant’s case to determination of one issue, namely, the validity of the authorisation certificate. That challenge of invalidity in turn,

limited to the allegation that the relevant certificate is vague, general and without particularity. Accordingly, if the certificate

is found to be valid that would be the end of the applicant’s case. The application would thus be liable to be dismissed.

The other points raised by the applicant have been abandoned. Whatever the respondents would have scored from such abandonment would not translate into any significant gain without the certificate being valid. An example of such points would be the contention by the applicant that the police had verified that the vehicle was not a stolen one and that they issued a police clearance certificate on that basis before the vehicle was registered. That would not advance the respondents’ case if the validity of the certificate would not have been established. In successfully disputing those issues perhaps, does not make the respondents to get entitlement to an order to continue to keep the vehicle in their position. Those could only play a significant role if the certificate was valid. In a situation where mandament van spolie applies, the illegality of the possession is not material. What counts is whether the police had a search warrant or a valid

authorisation certificate at the time of the seizure. My conclusion therefore is that the validity of the certificate is key to sustaining this matter. If I find the certificate invalid I will be in no position to adjudicate upon such other issues.

In order to read in perspective the pertinent allegations made against the validity of the certificate, it is necessary to record as I do hereunder, the terms of the certificate in question:

“ROADBLOCK / CHECK POINTS

AUTHORISATION IN TERMS OF SECTION 13(8) OF THE SOUTH AFRICAN POLICE SERVICE ACT, 1995 [ACT No 68 OF 1995]

. A 1. I the undersigned [number, rank and name] 0484545-5 Supt Alberton

Hintsa

being in charge of the Crime Prevention Qumbu police station

hereby authorize [specify number, rank and name of member in

command of roadblock] 0496546-9 Captain T.N MTALANA

In the magistrate’s district of QUMBU

2 . AND/OR checkpoint of checkpoints at the following public place/s

Ridge and MARAMBEI NATIONAL ROAD N2

In the magistrate’s district of Qumbu

B. The said operation takes place on the following dates 05-12-07 during

time period from 08H00 to 14H00

and with the aim to seize stolen vehicles and illegal firearms and drugs

C. The said operation is reasonable in order to perform the undermentioned

functions:

1. The prevention of crime

2. The investigation of any offence or alleged offence

3. The maintenance of Law and Order.

4. The preservation of the internal security of the Public

DATED AT QUMBU THIS 05 DAY OF DECEMBER 2007

Signature/ CAPACITY ”

The applicant’s version regarding the allegation of vagueness and lack of particularity is captured in paragraph 6.2.1 of the replying affidavit (the respondents were afforded an opportunity to respond to these amendments). The applicant states in the said paragraph:

“The certificate attached to the respondents answering affidavit merely refers to Ridge and Marhambeni National Road N2. Ridge is an Administrative Area with various roads. Marhambeni is far from N2 National Road so as Ridge. The only locations which are near the national road is Zifama, Gqunu farms, Mpumaze Location, New Homes. Luqolweni and Ridge are not near and/or along N2 Road. In fact the N2 Road is a vague description as it is not in a particular area. As I am a resident of Qumbu, I know the names of the localities which are near the N2 national road from town. I therefore submit that the certificate is vague as it lack particularity and leaves a discretion upon the police officer to decide where to set up a road block. In any event there is no road known as ‘Ridge and Marhambeni National Road N2’.” (My underlining).

The averments underlined above are not consistent with what is depicted in the said map. That however does not assist the respondents.

The author of the certificate, the third respondent responds to say the certificate was meant for two areas mentioned therein including the N2 National Road running between them. The two areas referred to are Ridge and Marhambeni. He further explains it to say according to the authorisation the police were free to operate in any of the two

administrative areas or in any place on the N2 National Road between the two of them. He disputes that the two administrative areas are far from N2 National Road. He avers they are both near it. According to him the police were free to conduct a roadblock at any place on the National Road between the two administrative areas.

Whatever superintendent Hintsa had in mind at the time he decided to issue the certificate which is no longer an issue in the light of the concessions made on behalf of the applicant, or at the time he issued it, the only reasonable and objective interpretation of the words “Ridge and Marhambeni National Road N2” can only mean the N2 National Road running alongside the two administrative areas.

The names of the administrative areas in this context or construction serve to describe and highlight the specific area in N2 National Road where a roadblock should be set up. I am of the view that the issue should be decided on the basis of the meaning conveyed by the words used and not what the author explains to have been his/her intention.

I considered it important to ascertain by means of an official map whether N2 National Road shares a common border with Marhambeni Administrative Area as well as Ridge Administrative Area and whether N2 connects the two. It is settled law that the court may consult a map for the purpose of taking judicial notice of a fact which such a map would establish beyond the possibility of reasonable dispute1. I drew the attention of Counsel to the map of Qumbu district. I invited them to file further heads of argument. The issue in this regard is whether the portion of N2 road bordering the Ridge or Luqolweni area on the one hand and Marhambeni area on the other runs continuosly alongside the two areas where common border is shared. I am of the view that the words used by the commissioner objectively refer to that situation. If that situation does not obtain, there is not even a place called Ridge, for example, the description by the commissioner would be meaningless and vague. The map they were referred to is number 31/28BB Qumbu published by Chief Directorate, Surveys and Mapping, Private Bag X10, Mowbray and printed by the Government Printer in Pretoria. It is an official map.

The map depicts that as you travel from the direction of Qumbu village towards Mount Frere, which is the route followed by the applicant’s driver, Luqolweni Administrative Area is located on the left hand side of N2. It comes down a ridge and ends up at a point bordering the N2 National Road in the north easterly direction. Following the N2 from that point takes one to the next administrative area on the left hand side which is Marhambeni.

If the words - ‘Ridge and Marhambeni National Road N2’ - were intended to include the entire extent of the geographical areas of Ridge and Marhambeni, as the third respondent suggests, that would mean, in my view, the authorisation could not have been consistent with the relevant legislation. It would not be describing the relevant places for roadblock with the requisite degree of precision2. Administrative areas, by design, are vast areas of land and if anywhere on them a roadblock is to be set up without identifying any landmark that would be a description that is wide and vague3. Besides, that kind of approach would be confusing in the instant case, leaving out the element of ‘N2 National Road’ incorporated

in the description given by the commissioner.

What the map does not show is that there is an administrative area or any place called Ridge in Qumbu district. This is the position despite the fact that both parties refer to Ridge as an administrative area. The location thereof has not been explained by the parties. For the respondents to successfully refute that the authorisation certificate is vague, generous and lacking particularity, it is essential to show where Ridge is located along the N2 National Road and where in relation to Marhambeni Administrative Area. I have been inclined to take Ridge for Luqolweni. Clearly that inclination has been as a result of the fact that a ridge is an English word for Luqolweni. I would not know whether this has any bearing on what the applicant, unprovoked, says in its supplementary heads of argument, namely:

“It is further submitted it is no cure for an overbroad certificate to say that the person against whom the certificate was to be executed knew or ought to have known the area in which the roadblock was allegedly set up was commonly known as ‘The Ridge’.”

What is now clear is that there is no case made out as to whether there is an area known as Ridge in the district of Qumbu and if there is, where it is located in order to determine whether it makes some sense for the commissioner who drew the authorisation certificate to refer to it. In addition, perhaps it would have given a different complexion to the outcome of the enquiry if it had been shown that Ridge is Luqolweni by another name. There is indeed no evidence to this effect. The map establishes that Luqolweni stretches along the N2 National Road until it connects with Marhambeni. The respondents have placed no evidence before this court even for purposes of identifying and locating the Ridge Stop.

In that event the applicant’s version pertaining to the enquiry with regard to the validity or lack thereof of the authorisation certificate is upheld. The authorisation certificate issued by the third respondent, purportedly in terms of section 13(8)(a) of the Act, is invalid. The effect is that the vehicle in question should be released to the applicant. The part of the relief sought to the effect that the respondent be interdicted and restrained from further unlawfully interfering with the applicant’s position of the motor vehicle without compliance with the law, has no factual basis laid in these proceedings. It can thus not be countenanced.

In the result the following order is made:

The authorisation certificate issued by the third respondent on 5 December 2007 purportedly in terms of section13(8)(a) of the South African Police Service Act No 68 of 1995 is declared invalid and is set aside;

the search, seizure, and continued detention of the motor vehicle, to wit, TOYOTA HI ACE with registration letters and numbers BRB 980 EC is declared unlawful;

the first respondent is directed to forthwith release the said vehicle to the applicant;

the respondents are ordered to pay the costs of the application, jointly and severally, the one paying the others to be absolved.

C T SANGONI

ACTING DEPUTY JUDGE PRESIDENT

Counsel for the applicant : Adv A M Da Silva

Attorneys for the applicant : Mvuzo Notyesi Inc

2nd Floor – Madala CH

14 Durham Street

Mthatha

Counsel for the respondents : Adv K D Qitsi

Attorneys for the respondents : The State Attorney

No 27 Victoria Street

Cathedral Street

Date heard : 30 July 2009

Date Judgment delivered :

Nkosiyazi Wellington Madlavu – Case no 1273/08

1 The South African Law of Evidence (DT Zeffert, AP Paizes, AST Skeen ) P.724

2 Sithonga v Minister of Safety and Security and Others 2008(1) SACR p377

3 SSS Motors (Pty) Ltd and Minister of Police, Transkei NO & Another, Case No 1386/92 (Unreported)