Markos v Minister of Police N.O and Others (3945/2024) [2024] ZANWHC 235 (12 September 2024)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION – MAHIKENG

CASE NO : 3945/2024

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

In the matter between:

FIDEBO ADUMASO MARKOS

APPLICANT

And

MINISTER OF POLICE N.O

1st RESPONDENT

OLD MUTUAL (PTY) LTD t/a

OLD MUTUAL FEDERAL INSURANCE

2ND RESPONDENT

SHAUN GILLILAND

3RD RESPONDENT

Judgment is handed down electronically by distribution to the parties’ legal representatives by e-mail. The date that the judgment is deemed to be handed down is 12 September 2024 at 11h30.

ORDER

(i) The matter is struck from the roll for lack of urgency. The applicant is to pay the costs.

JUDGMENT

REDDY J

Introduction

[1] This application was struck from the roll for lack of urgency, with the applicant ordered to pay the costs. On 29 August 2024, a request for reasons for this order was filed as provided in Rule 49(1)(c) of the Uniform Rules of Court, (“the Rules”). What follows is my reasons.

The parties

[2] As will become apparent, the applicant had approached the urgent court on two occasions, initially under CASE NUMBER 3094/2024 which was before Mfenyana J. The parties in the latter case number did not mirror the parties before me. For ease of reading and to overt conflating the two applications a proper introduction of the parties is appropriate.

[3] The applicant is Mr Fidebo Adumaso Markos, (“Markos”), an adult male business person residing at House Number B[…] Morokweng, North West Province. The first respondent is the Minister of Police, (“the Minister”), cited in his official capacity as the police functionary responsible for the South African Police, (“the SAPS”). The second respondent is Old Mutual (Pty) Ltd t/a Mutual and Federal Insurance, (“Old Mutual”). The third respondent is Mr Shaun Gilliland, (“Gilliland”), an adult male person apparently employed by Old Mutual.

Background

[4] To grasp the relief that was sought before me, it is necessary to set out a conspectus of the full facts in fine detail. On 02 July 2024, Markos approached the intervention of this Court for spoliatory relief on an urgent basis under Case Number 3098/2024 . Mfenyana J ordered the following relief:

1. That: The forms and services provided for by the rules of the above

Honourable Court be dispensed with and the matter be treated as urgent in terms of the provisions of rule 6(12) of the Uniform Rules of Court.

2. That: The First and Second Respondents be ordered to immediately restore the Applicant’s possession the following goods which are currently kept by the Second Respondent at SANNIESHOF POLICE

STATION under CAS NO: 106/2024 or any other place where such goods may be found.

2.1. One WHITE TOYOTA FORTUNER vehicle

REGISTRATION NUMBER: C[…]

LICENCE NUMBER: K[…]

VIN NUMBER: A[…]

ENGINE NUMBER: 1[…]

2.2. All documentation that were handed by the Applicant to unknown members of the First and Second Respondents during the warrantless search and seizure of the Applicant on 14 JUNE 2024, including:

2.2.1 The original registration papers of the vehicle described in paragraph 3.1.

2.2.2. The police clearance regarding the vehicle referred to above.

2.3. Five cell phones.

3. That the respondents shall pay the costs of this application on attorney and client scale, jointly and severally the one paying the other to be absolved.

[5] Afore successfully securing spoliatory relief under CASE NUMBER 3098/2024, the Station Commander (being the second respondent) in the latter application made it impossible for the enforcement of the order granted by Mfenyana J. To this end, Markos prepared the launching of a contempt of court application. This contempt application was ultimately removed from the roll as the order by Mfenyana J was partially complied with. There was no strict adherence to the four corners of the order. Putting it simply, it was only the white Toyota Fortuner that was returned to Markos’s possession.

[6] On 05 July 2024, after having been placed in possession of the Fortuner, Markos’ travels to his home was interrupted by the presence of police roadblock. The roadblock was manned by five (5) police officials who then unlawfully searched the Fortuner and seized same. The Fortuner was subsequently impounded. Markos contends that the second seizure of his Fortuner was no more than an orchestrated manoeuvre to skirt the order of Mfenyana J. Additionally, the timing and set up of the roadblock was predicated on information that had been prompted from him, as to his intended destination. Resultantly, the Minister had inside knowledge as to his precise destination and therefore was able to act mala fide in the search and seizure of his Fortuner.

[7] Markos asserts that he attempted to secure a consultation with counsel, but his counsel of choice was unavailable for the week of 8-12 July 2024. On 17 July 2024, Markos met with counsel. Counsel requested that Markos’s attorney obtain a copy of the SAP 13, which is the Register of Exhibits. On 23 July 2024, same was secured.

[8] An examination of the Register of Exhibits ventilated that on 09 July 2024, the Fortuner had been unilaterally handed over to Old Mutual who was duly represented by Gilliland. Markos asserts that it was mindboggling how his Fortuner was handed over to a third party.

[9] Markos contends that the threshold of urgency had been met due to the following factors. First, his Fortuner had been seized without his consent, in the absence of a lawful search. Second, a unilateral decision was taken which must be reconsidered. Flowing from the latter, on the setting aside of the search and seizure, he will be entitled to a spoliation order which is inherently urgent. Third, the unlawfulness of the search and seizure transgresses the right to privacy as enshrined in section 14 of the Constitution. Fourth, the application stands to be urgent as this Court is duty bound to ensure that the powers of police officials are not abused. Fifth, there can only be substantial relief in urgent court. Markos contends that it cannot be expected that this application be brought in the normal course of litigation as it will take several months to be aerated. Sixth, Since the Fortuner has been handed to an unknown party, there is a fear that the Fortuner might be sold to a bona fide third party. Seventh, Markos avers that the Fortuner is his only vehicle which is used to conduct his business. The absence of same has led to his livelihood being hamstrung. Eight, Markos concludes that he had a right to launch such an application.

The version of the Minister

[10] The Minister contends that the urgency alluded to by Markos is self-created as his Fortuner was seized and impounded on 05 July 2024. Markos approaches this Court thirty days (30) days later without a proper and reasonable explanation. Given Markos’s own timeframes there is no basis for this application to have jumped the queue. It followed that this application ought to be struck off the roll for the lack of urgency.

[11] The Minister’s version as it relates to the merits can be succinctly summarized as follows. On 28 May 2022, a white Toyota Fortuner bearing registration number F[…] was unlawfully removed from a parking area in Lyttelton, Gauteng. To this end, a criminal case was registered bearing CAS NUMBER 426/05/2022. For that reason, the Fortuner was placed under a circulation system. When it was in motion, roadside cameras would generate a notification which would result in the nearest police station be alerted. The circulation reports demonstrate that the original vehicle was exported to Zimbabwe on 16 May 2022 and was deregistered in South Africa.

[12] On 14 June 2024, as the Fortuner was driven on the N14 road between Lichtenburg to Sannieshof, the roadside cameras generated a notification which alerted the Lichtenberg SAPS. On 05 July 2024 in compliance with the order of Mfenyana J, Markos was placed in possession of the “stolen vehicle”.

[13] As Markos travelled with the Fortuner, the roadside cameras dispatched a notification that a stolen vehicle was travelling to Mahikeng. Markos was stopped at roadblock and police officials subsequently discovered that the said Fortuner had been tampered with. The Fortuner was confiscated in line with the dictates of the law and consequently the dispossession was lawful. The Minister is no longer in possession of the Fortuner as it was handed over to the owner, Old Mutual on 09 July 2024. At the very least on these facts the Minister avers that the relief sought by Markos was impermissible in law as it did not have possession of the Fortuner at the very least.

The version of the Old Mutual

[14] Old Mutual filed a Notice in terms of Rule 6(5)(d)(iii) of the Uniform Rules of Court. Old Mutual contended that ex facie prayer 3 of the Notice of Motion, Markos seeks the immediate return of and restoration his possession of a motor vehicle described as:

3.1 One White Toyota Fortuner vehicle

REGISTRATION NUMBER: G[…]

[15] Old Mutual alleges that the Fortuner collected from the SAPS, was no longer in possession of Old Mutual or Gilliand (and against whom prayer 3 of the notice of motion cannot be directed) did not as a matter of fact and law have the same chassis or engine number as the vehicle referred to in the Notice of Motion.

[16] Old Mutual continues that the SAPS took an administrative decision to issue a South African Police Vehicle Identification Number (“SAPVIN”) to the Fortuner as provided in Regulation 56 of the Road Traffic Act 93 of 1996. Old Mutual underscores that the SAPVIN is a number that is uniquely generated by the SAPS vehicle circulation system. Following the administrative decision of the SAPS, the Johannesburg Motor Vehicle Authority took an additional administrative decision to

issue a Certificate of Registration and Ownership of the vehicle in favour of Old Mutual. To this end, Old Mutual is the true and lawful owner of the Fortuner. To reinforce same, documentary evidence was annexed. That being so, there are no pending review applications to impugn the distinct administrative processes and decisions. As such Markos has no prima facie right and/or locus standi to the relief sought. Therefore, the spoliation relief is incompetent and incapable of implementation by Old Mutual or Gilliland.

Resultantly the application was not urgent.

The law on urgent relief

[17] Quintessentially the court had to first consider whether the application passed muster of urgency as provided in Rule 6(12) of the Rules of Court. Rule 6(12) reads as follows:

(a) In urgent applications the court or a judge may dispense with the forms and service provided for in these rules and may dispose of such matter and in accordance with such procedure (which shall as far as practicable be in terms of these rules) as it deems fit.

(b) In every affidavit or petition filed in support of any application under paragraph (a) of this subrule, the applicant must set forth explicitly the circumstances which is averred render the matter

urgent and the reasons why the applicant claims that the applicant could not be afforded substantial redress at a hearing in due course.

(c) A person against whom the order was granted in such person’s absence in an urgent application may by notice set down the matter for reconsideration of the order.

[18] The Courts have over the years provided guidelines as to the application of this Rule. Rule 6(12) (a) confers a discretionary power on a court seized with an application of this nature to dispense with the forms and service envisaged in the Rules, and to dispense of the application at such time and place and in a manner and to prescribe the procedure as it deems appropriate. The preliminary enquiry is aimed at the determination of whether there must be a departure at all from the usual process. (See Luna Meubel Vervaardigers v Makin and Another 1977 (4) SA 135 (W) at 136H-137F).

[19] In Hultzer v Standard Bank of SA (Pty) Ltd (1999) 20 ILJ 1806(LC) in 1809 the following was stated:

“The court will, however, only grant such relief where an applicant is able to persuade the court that extremely cogent grounds for urgency exist.”

[20] In East Rock Trading 7 (Pty) Limited and Another v Eagle Valley Granite (Pty) Limited and Others 2011 ZAGPJHC 196, at para [6] the following was stated:

[6] The import thereof is that the procedure as set out in Rule 6(12) is not there for the taking. An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the applicant, must state the reasons why he claims that he cannot be afforded the substantial redress in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of the absence of substantial redress in the application in due course. The rules allow the court to come to the assistance of a litigant because if the latter were to wait for the normal course laid down by the rules, it will not obtain substantial redress….”

[21] The approach adopted was to deal with the question of urgency conjunctively with the Notice Rule 6(5)(d)(iii) as these are extricable intertwined. It follows axiomatically that where an applicant fails in convincing the court that they will not be afforded substantial redress at a hearing in due course, the matter will be struck from the roll. This will enable the applicant to set the matter down again, on proper notice and compliance See; SARS v Hawker Air Services (Pty) Ltd [2006] ZASCA 51; 2006 (4) SA 292 (SCA).

[22] On a proper analysis of the papers, it is indubitable that the Fortuner that Markos was driving was seized and impounded on 05 July 2024. The application for spoliation was set down for hearing on 06 August 2024. The delay is palpable. Markos does little to explain explicitly what formed this delay. A bald statement that his counsel was not available for an entire week goes against the assertion of urgency. Moreover, the avowal of urgency is further deprecated by the absence of an explanation for the period 12 July 2024-17July 2024. On 17 July 2024, Markos’s counsel requested that a copy of the SAP 13 be sought. This was secured on 23 July 2024. Yet again, no explicit explanation as to what transpired between 17 July 2024 – 23 July 2024 is proffered. See: Mangala v Mangala 1967 (2) SA 415 (E).

[23] The fact that spoliation applications are inherently urgent does not provide an applicant with legal immunity not to meet the watermark of urgency which is the first surmountable precursor to the hearing of the merits of the application. Simply stated, an applicant is still required to adhere to the tenets of Rule 6(12)(b) in a manner which entitles them to cut across the whole procedure governing applications.

[24] The second pillar of urgency relates to the absence of substantial relief in due course. If an applicant cannot be afforded substantial redress at a hearing in due course, then the matter qualifies to be enrolled and heard as an urgent application. It matters not if there is some delay in instituting the proceedings, an applicant must explain the reasons for the delay and why, despite the delay their claims, cannot be afforded substantial redress at a hearing in due course.

[25] What accent needs to be put on, is that in a democratic state, where the supremacy of the Constitution and the rule of law are unimpugnable, the right to approach the Court for urgent relief is subsumed in section 34 of the Constitution. In Chief Lesapo v North West Agricultural Bank and another [1999] ZACC 16; 2000 (1) SA 409 (CC) at [13], the following was posited:

"[a]n important purpose of s 34 is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law…"

[26] The apex court continued at paragraph [16]

"… s 34 and the access to courts it guarantees for the adjudication of disputes are a manifestation of a deeper principle; one that underlies our democratic order."

[27] It said further at paragraph [22]

"[t]he right of access to court is indeed foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance. As a result, very powerful considerations would be required for its limitation to be reasonable and justifiable.”

[28] It is against this legal backdrop that the question of substantive relief in due course should always be measured.

[29] The relief sought against the Minister failed on two scores. First, Markos has failed to set forth explicitly the circumstances which was averred to render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course. Second, the Markos would be afforded substantial relief at a hearing in due course given the irrefutable fact that the members of the SAPS, were not in possession of the Fortuner.

[30] Regarding Old Mutual and Gilliland, it axiomatically follows that Markos’ application did not cut the mustard as far as urgency was concerned. That being so, it would have signalled the implosion of the entire relief. For completeness I address the issue of substantial relief as it is pertinent to Old Mutual and Gilliand. The Fortuner described in the Notice of Motion does not exist given the various administrative processes that followed since the search and seizure of same from Markos. It would appear the Advocate Scholtz was alive to this and submitted an amended draft order. In my view a proper application to amend the Notice of Motion to precisely describe the Fortuner would have been prudent. Notwithstanding the absence of same, nothing turns on this. The Fortuner in possession of Old Mutual and/or Gilliland has been allocated a new registration

number, Vin Number and engine number. Given these changes and admitted facts Markos would unquestionably be afforded substantial

redress at a hearing in due course.

[31] Costs are at the discretion of the court. No sound basis existed for a deviation from this practice was contended.

[32] I therefore reiterate the order handed down:

Order

The matter is struck from the roll for lack of urgency. The applicant is to pay the costs.

A REDDY

JUDGE OF THE HIGH COURT

OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

APPEARANCES Counsel for the Applicant : Advocate H. Scholtz Applicants attorneys : M Moshidi Inc. 2280 Molebatsi Street Mmabatho Counsel for the First Respondent : Advocate Nyoka Attorneys for the First Respondent : State Attorney 1st Floor East Gallery Mega City Complex Cnr Sekame & DrJames Moraka Drive Mmabatho Counsel for the Second Respondent : Advocate Tshetlo Second Respondent’s Attorneys : Tlou Attorneys and Associates No.43 Cnr Baden & Visser Street Golfview Mahikeng Date of hearing 06 August 2025 Date of Order 22 August 2024 Date request for reasons filed 29 August 2024 Date reasons handed down 12 September 2024