Matli v Minister of Police and Others (6110/2021) [2021] ZAWCHC 286 (3 May 2021)

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

(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case no: 6110/2021

In the matter between:

JOHN LISEMA MATLI Applicant and MINISTER OF POLICE First Respondent STATION COMMISSIONER, CERES POLICE STATION Second Respondent MUNICIPAL MANAGER, WITZENBERG LOCAL MUNICIPALITY Third Respondent MUNICIPAL MANAGER, DRAKENSTEIN LOCAL MUNICIPALITY Fourth Respondent MEC FOR TRANSPORT, WESTERN CAPE Fifth Respondent

JUDGMENT: DELIVERED ON 3 MAY 2021

NEL AJ:

Background and urgency:

1. This is an opposed application which has been brought on an urgent basis in terms whereof the applicant initially sought the issuance of a rule nisi returnable on some future date for, inter alia, a mandament van spolie. He seeks the return of a Toyota Condo motor vehicle, with registration number C[...].

2. He alleges that he was unlawfully deprived of peaceful and undisturbed possession of the motor vehicle by the second, third and fifth respondents on 26 February 2021.

3. The applicant alleges that on such date the motor vehicle was being driven by his driver, to wit, Tlhokomelo Sello (“Sello”),

and he and his nephew, Poloko Matli (“Matli”), were passengers therein. They were driving from Prince Alfred

towards Ceres when they were stopped by members of the second, third and fifth respondents. Sello was unable to produce his driver’s licence when requested to do so, and one of the members of the second, third and/or fifth respondents then drove Sello, in the motor vehicle in question, to other members of the second, third and/or fifth respondents who had set up a road block on the R 46 between Ceres and Wolsley. Sello was then issued with a traffic fine.[1] It is evident from the traffic fine itself that the charge was for, inter alia, operating a road based public transport service with no operating licence or permit. The motor vehicle is incorrectly described

as a Toyota Avanza in the fine whilst it is now common cause between the parties that is indeed a Toyota Condor. Nothing turns on this and the registration number of the motor vehicle, to wit, C[...], is correctly described in the fine. The applicant

alleges further that because the members of the second, third and/or fifth respondents were not in possession of a court order or warrant when they impounded the motor vehicle, and because it was not done with his consent, the dispossession of the motor vehicle was unlawful.

4. The applicant, on his own version, consulted with attorneys on the same date, being 26 February 2021. Those attorneys addressed

correspondence to the second, third and fifth respondents on 1 and 2 March 2021[2] and to the fourth respondent on 25 March 2021, which correspondence sought the return of the motor vehicle, failing which they would approach this court on an urgent basis for the restoration of possession thereof.

5. The application was issued on 9 April 2021 but only served upon the third respondent on 19 April 2021 and upon the fourth respondent on 15 April 2021 by the Sheriff of this court. The application was served upon the States Attorney on behalf of the first and fifth respondents on 13 April 2021. Why it took the applicant 10 calendar days to effect service of an alleged urgent application is unknown. The notice of motion gave the respondents until 15 April 2021 to file a notice of intention to oppose (the application not even having been served upon the third respondent at this stage), and provided for opposing papers to be filed by 20 April 2021, with the matter to be heard on the urgent roll 23 April 2021. On that date, the applicant appeared in person, Mr. De Villiers appeared on behalf of the third respondent, who opposes the application and had filed an opposing affidavit, and Ms. Van Tonder appeared on behalf of the first, second and fifth respondents. Ms. Van Tonder indicated to me that the first and second respondents abided the decision of this court whilst the fifth respondent sought a postponement in order to file opposing papers.

This issue is dealt with in more detail below. The applicant had no objection to a postponement being granted and the matter was accordingly postponed by agreement between the parties to 3 May 2021. The matter proceeded to be argued before me on that date.

6. Before dealing with the allegations of the third and fifth respondents, it is necessary to deal with the issue of urgency.

7. The truncated time periods provided for by the applicant in his notice of motion are not justified by the facts of this case.

8. In his founding affidavit the applicant alleges a number of reasons which render the matter urgent which can loosely be summarized as follows: he alleges that owns a spaza shop and that he makes use of this motor vehicle to stockpile for his spaza shop and also to transport vegetables that he sells at Oop De Berg fruit farms; the loss of possession of the motor vehicle therefore has a drastic impact on his ability to earn an income which has other consequent knock-on effects on other areas of his life such as, for example, his ability to support his children and their educational needs and his ability to service his debt. The third respondent in its opposing affidavit alleges that the applicant owns four other motor vehicles. The applicant in reply denies owning four other motors but admits to owning two other motor vehicles, although he alleges that they are older motor vehicles, one of which is not currently operational. No reason is given by the applicant as to why, even if his version were to be accepted, the one motor vehicle which is operational[3] cannot be used to stockpile the spaza shop or transport the vegetables sold at Oop De Berg. There is accordingly no merit

in the applicant’s allegations that the dispossession of the motor vehicle has rendered him destitute.

9. Moreover, two months have lapsed since the applicant’s dispossession of the motor vehicle and the hearing of this matter. This begs the questions as to why the applicant, if he believed the matter was truly urgent, has not taken steps to timeously attend to the service of the present application and set the matter down before 23 April 2021. The applicant appears to tribute this delay to attempting to settle the matter prior to the institution of these proceedings by addressing correspondence to the respondents. As mentioned above, such correspondence was sent to the second, third and fifth respondents on 1 and 2 March 2021 already. This may accordingly explain a delay of a couple of weeks, but not almost a couple of months as is the case in the present matter.

10. Rule 6(12)(b) is very clear as regards the test for a deviation from the rules, stating that:

In every affidavit or petition filed in support of any application under paragraph (a) of this sub-rule, the applicant shall set forth explicitly the circumstances which he avers renders the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course.

11. Accordingly, the test to determine whether or not a matter can be heard contrary to the procedural protections of the rules is:

11.1 Are there grounds for urgency? and

11.2 Can the Applicant obtain redress in due course?[4]

12. For the reasons set out above, and especially in light of the applicant’s own concession that he at present owns two other motor vehicles, there are no grounds for urgency in this matter. The applicant moreover has not stated why, instead of resorting to this application, he has not paid the impound release fee, so as to secure the release of the motor vehicle.

13. The matter should accordingly be struck from the roll for lack of urgency. However, because the parties have already argued the merits of the application before me, I shall proceed to pronounce judgment thereon.

Merits of the application:

14. It is trite that an applicant in an application for a mandament van spolie (which applicant concedes is the nature of the present application) must show that:

13.1 He was in peaceful and undisturbed possession of the goods; and

13.2 That he was unlawfully deprived of such possession.[5]

14 That the applicant was in peaceful and undisturbed possession is not in dispute. What is in dispute between the applicant and the third and fifth respondents was whether he was unlawfully deprived of such possession.

15 In order to address this issue one has to have regard to the version put up by the third and fifth respondents. As stated above, the matter initially came before me on 23 April 2021. By that date the third respondent had already filed its answering affidavit, however, counsel for the fifth respondent requested a postponement of the matter in order to file its answering affidavit. For this reason, the matter was postponed to 3 May 2021 and the parties were directed to provide a draft further conduct order setting out the timelines for the filing of opposing papers by the fifth respondent and a reply, if any, by the applicant. The fifth respondent failed to do so, and I was provided with the fifth respondent’s opposing papers on the morning of 3 May 2021 shortly before court commenced. This conduct on behalf of the fifth respondent is not to be condoned. It sought an indulgence when requesting a postponement on 23 April 2021 to 3 May 2021 and it had a duty, in the absence of providing this court with a draft further conduct order, as directed to do, to at the very least file its answering affidavit timeously and not a few minutes before court commenced. Ms. Christians who appeared on behalf of the fifth respondent on 3 May 2021 could not provide this court with satisfactory reasons as to why the answering affidavit was not filed timeously. This conduct on behalf of the fifth respondent is the reason for the costs order which I have made below.

The legal framework:

16 The third respondent is a local authority which has legislative and functional powers over the functional areas of its jurisdiction listed in Schedules 4B and 5B of the Constitution of the Republic of South Africa, 1996.

17 Sections 156(1) and (2) in addition to the two lists of functional areas in Schedules 4B and 5B of the Constitution constitute the primary source of power for local government. The Schedule 5B matters contain 23 categories which include “… (p) municipal roads” and “…(w) traffic and parking”.

18 Section 1(1)(b) and (c) of the National Land Transport Act 5 of 2009 (“the NLTA”) defines an “authorised officer”, inter alia, as:

(a) …

(b) a member of the South African Police Service, including a member municipal police service, as defined in section 1 of the South

African Police Service Act, 1995 (Act No. 68 of 1995);

(c) a person in the service of a provincial department or municipality or the Road Traffic Management Corporation established by the Road Traffic Management Corporation Act, 1999 (Act No. 20 of 1999) whose duty is to control traffic or to inspect motor vehicles or licenses for motor vehicle;

(d) …

19 The third respondent has the power to appoint law enforcement officers (traffic officers) who are by virtue of their position declared to be peace officers in terms of section 334 of the Criminal Procedure Act 51 of 1977 by GN 1114 in Government Gazette 41982 of 10 October 2018.

20 In terms of section 152(1)(d) of the Constitution, a municipality has a duty to promote a safe and healthy environment within its municipal area. It is further obliged in terms of section 153(a) of the Constitution to structure its administration and budgeting and planning processes to give priority to the basic needs of the community, which needs would include public transport and to promote the social and economic development of the community.

21 Section 156(1) read with Part B of Schedule 5 of the Constitution confers executive authority in respect of traffic in its municipal area on a municipality. However, the national government, subject to section 44 of the Constitution, and the provincial governments, have the legislative and executive authority to see to the effective performance by municipalities of their functions in respect of matters listed in Schedules 4 and 5 by regulating the exercise, by municipalities, of their executive authority referred to in section 156(1) of the Constitution.

22 In terms of section 11(c)(xv) of the NLTA, read with section 11(c)(xiii), the municipality must liaise on a continuous basis with the South African Police Services, the Road Traffic Management Corporation, the relevant provincial and municipal law enforcement authorities or agencies to ensure coordinated transport law enforcement within its area.

23 Should it lack the resources to meet these obligations, section 11(b)(v) of the NLTA obliges the provisional sphere of government to ensure that municipalities that lack capacity and resources are capacitated to perform their land transport functions. One of the means in which this can be achieved is through an agreement as envisaged in section 85(2) of the NLTA which provides that an MEC or a municipality may enter into an agreement whereby authorized officers of one enforcement authority may be seconded to another authority temporarily, or that land transport law enforcement functions are undertaken jointly or by a public or private sector agency on behalf of the authority.

24 The aforementioned section 85 of the NLTA imposes a duty in section 85(1) on the MEC and municipality to take active steps to develop systems to improve land transport law enforcement in their respective jurisdictions.

25 Section 87 of the NLTA authorizes the impoundment of vehicles and, inter alia, states that:

(1) An authorized officer who is satisfied on reasonable grounds that a motor vehicle is being used by any person for the operation of public transport without the necessary operating licence or permit or contrary to the conditions thereof, may impound the vehicle pending the investigation and prosecution of that person for an offence mentioned in section 90(1)(a) or (b);

(2) A vehicle impounded under subsection (1) must be delivered to the head of the depot contemplated in subsection (4), who must retain the vehicle in the depot and must release it to the person concerned only –

(a) When the criminal charges against the person have been withdrawn or the person has been acquitted of the offence charged; or

(b) In the case where the person is convicted of the offence charged, and unless the court has ordered otherwise, on payment to the head of the depot of the amount determined by the MEC which is an impoundment fee…

Facts of the present matter:

26 The third respondent filed an opposing affidavit deposed to by a Mr. Green who is the traffic chief of the Witzenberg Municipality (“the municipality”). All traffic operations within the area of the municipality are conducted under the auspices and by officers under the control of Mr. Green; such officers also report to him. Mr. Green states that illegal taxi operations have been a problem in his department and for the municipality for quite some time.

27 The fifth respondent filed an opposing affidavit deposed to by a Mr. Farrel Payne who is the Acting Chief Director: Traffic Management for the Western Cape Provincial Government.[6] The fifth respondent makes common cause with the third respondent but sheds further details on what transpired at the time that the applicant’s motor vehicle had been impounded.

28 The municipality was granted the right to establish a municipal police service as envisaged by section 64A of the South African Police Service Act. In an attempt to curb the illegal taxi operations, the Western Cape Government (first and second respondents) through its acting Regional Director, Mr. Groenewald, on 8 February 2021 prepared an Integrated Operational Plan focussed on the illegal public transport operators in the municipality’s area.

29 The purpose of the Integrated Operational Plan was to set up a roving vehicle check point operation specifically targeted at identifying vehicles used for illegal public transport. This, the fifth respondent explains, is different from a conventional “road block” which is set up with the aim of stopping and checking drivers/vehicles at random. Here, the aim was specifically to ensure that drivers and vehicles operating as public transport were doing so lawfully and to seize vehicles which were being used illegally.

30 The fifth respondent alleges that in order to effectively meet that objective, it was necessary to set up multiple checkpoints to ensure that drivers operating vehicles illegally could not easily avoid the vehicle check point. The check point under which the applicant’s motor vehicle was seized had locations on the outskirts of the Ceres area. One of those checkpoints was on Hamlet Road, where the driver of the vehicle had been stopped.

31 The officer who stopped the driver was Mr. William Lesley van Oord, who also filed a confirmatory affidavit. When van Oord stopped the driver, he introduced himself to the driver and requested the driver’s licence and permit for the vehicle. The driver informed van Oord that his licence was at home (not in another vehicle as alleged by the applicant). Van Oord informed the driver that he had to have a permit to make use of the motor vehicle for reward. The driver confirmed that he did not have such a permit but did not deny that the vehicle was being used for reward.

32 According to van Oord, a child was seated at the front passenger side of the vehicle and there were three adults seated at the back of the vehicle. Van Oord asked the passengers in the vehicle if they were using the vehicle to get to town and if they had paid a fare to do so. The passengers confirmed that was the case.

33 Van Oord then informed the passengers that he would have to impound the vehicle and that they would have to get into another, permitted vehicle. The driver said nothing in protest – a clear indication that he was not transporting the passengers in a familial or friendly capacity as implied by the applicant.

34 Van Oord also categorically denies that the applicant was in the motor vehicle at the time.

35 After the passengers alighted the vehicle, and after a number of other vehicles had been seized, van Oord drove the vehicle to the main check point in the centre of town. The driver accompanied van Oord. At the main checkpoint, van Oord gave the driver a fine and an impound receipt. The fine stated that it was issued for “operate a road based public transport service no operating licence or permit” (sic), alternatively “no original or duplicate original permit in vehicle”.

36 The driver was required to either pay the fine by 9 April 2021 or, failing which appear at the Ceres District Court on 16 April 2021. The fifth respondent states that to the best of its knowledge the driver has done neither.

37 The process to have the vehicle released is prescribed by section 87(2) of the NLTA and is set out in the impoundment receipt that was given to the driver by van Oord. The fifth respondent states that it does not keep a copy of such impoundment receipt.

38 The third respondent alleges that in a report prepared by a traffic officer by the name of Mr. Vergotine to Mr. Green the applicant’s motor vehicle is recorded as one of the motor vehicles impounded due to it not having a public transport permit / operating licence. The third respondent further alleges that during the period 26 July 2018 to 21 March 2020 no less than 13 traffic fines were issued in respect of the motor vehicle due to the illegal operation and/or misdemeanours committed with the vehicle. The third respondent

also points out that a warrant of arrest has been issued out of the Ceres Magistrates Court for one of the applicant’s taxi

drivers, Mr. Mkhobza, arising out of the illegal operations of the impounded motor vehicle, the offence being for operating a taxi

without the necessary operating licence or permit and without a professional driving licence. This, viewed holistically, the third respondent submits, is indicative of the motor vehicle being used as a taxi. This is denied by the applicant in his replying papers.

39 The third respondent alleges that in addition to the present motor vehicle, two other motor vehicles, with registration numbers C[...]2 and C[...]3 have been involved in traffic offences, and that the applicant is also the owner of another Toyota Condor with registration C[...]4 and a Toyota Hi Ace (taxi) with registration number C[...]5. The applicant in his replying affidavit admits ownership of the motor vehicle which was impounded, the Toyota Condor with registration number C[...]4 and the Toyota Hi Ace (taxi) with registration number C[...]5. He however states that he has sold the other two motor vehicles.

40 The third respondent, given the type of motor vehicles owned by the applicant, alleges that he is conducting an illegal taxi operation which is his primary source of income, although his ownership of a spaza shop cannot be denied. The applicant on the other hand denies being a taxi operator.

41 There is accordingly a clear dispute of fact between the applicant and the third and fifth respondents regarding whether firstly, the applicant is a taxi operator; and secondly, whether the motor vehicle was being used as a taxi. The crux of the matter before this court is whether the motor vehicle was lawfully impounded. If it was, the application must fail. In order to however determine this question, one has to first look at the relief sought by the applicant.

Relief sought by the applicant:

42 As set out above, the applicant initially sought a rule nisi returnable on a future date. A rule nisi should not be granted merely by the asking therefor.[7] This court has to be satisfied that a rule nisi is warranted on the papers. This is an important consideration because the version upon which this court has to decide the matter depends upon whether interim or final relief is sought.

43 In this regard, insofar as interim relief is sought the court in Simon N.O. v Air Operations of Europe AB and Others [1998] ZASCA 79; 1999 (1) SA 217 (SCA) held at 228F-I that:

The accepted test for a prima facie right in the context of an interim interdict is to take the facts averred by the applicant,

together with such facts set out by the respondent that are not or cannot be disputed and to consider whether, having regard to the inherent probabilities, the applicant should on those facts obtain final relief at the trial. The facts set up in contradiction by the respondent should then be considered and, if serious doubt is thrown upon the case of the applicant, he cannot succeed. (Gool v Minister of Justice and Another 1955 (2) SA 682 (C) at 688B--F and the numerous cases that have followed it.)

44 On the other hand, insofar as final relief is sought the law as laid down in Plascon-Evans Paints LTD v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) is well known. At 634 Corbett JA stated:

Where in proceedings on notice of motion disputes of fact have arisen on the affidavits, a final order, whether it be an interdict or some other form of relief, may be granted if those facts averred in the applicant’s affidavits which have been admitted by the respondent, together with the facts alleged by the respondent, justify such an order.

45 The applicant seeks the restoration of the motor vehicle to him. The nature of such relief and a mandament van spolie in general is that of a final remedy (interdict).

46 I therefore requested the applicant to address the court as to why he sought a rule nisi. He stated that he had done so as he was unsure as to whether the respondents would have an opportunity to file opposing papers. He conceded that given that the third and fifth respondents had filed opposing papers, and the matter had accordingly been fully ventilated, he no longer sought a rule nisi and requested a final order.

47 There can accordingly be no doubt that the submissions of Mr. De Villiers and Ms. Christians, who appeared on behalf of the third and fifth respondents respectively, that the matter ought to be decided by applying the Plascon-Evans rule, is correct. When one does so, the inescapable conclusion is that the motor vehicle was being used as a taxi without a valid permit as set out above, and that the applicant was accordingly lawfully deprived of possession thereof. He is therefore not entitled to a mandament van spolie.

48 In the circumstances, I find that the applicant has failed to discharge the onus upon him in respect of a mandament van spolie. For these reasons, together with the lack of urgency as set out above, the application is dismissed with costs, save that the fifth respondent may not recover the costs of its appearance on 23 April 2021 from the applicant, for the reasons set out above.

ORDER:

49 I accordingly make the following order:

a. The application is dismissed with costs, save that the fifth respondent may not recover the costs of its appearance on 23 April 2021 from the applicant.

NEL AJ

[1] These facts are disputed by the fifth respondent whose version is set out below under the merits of the application.

[2] The fifth respondent however denies receipt of such correspondence.

[3] Although allegations are made that is currently “with the mechanics”; the applicant does not take this court in his confidence and state how long it has been in the workshop or how much longer it is expected to remain in the workshop.

[4] See also Salt and Another v Smith 1991 (2) SA 186 (NM) at 187 E-H and also Schweizer Reneke Vleis Mkpy (Edms) Bpk v Die Minister van Landbou en Andere 1971 (1) PH F11 (T) at F 11-12.

[5] See Yeko v Qana 1973 (4) SA 735 (AD) at 739E. See also Le Riche v PSP Properties CC & Others 2005 (3) SA 189 (C) at 193 F-H. is dismissed with costs.gued before me on that date.icant had no objection to a postponement being granted and the matter was a

[6] The applicant, in his replying affidavit, takes issue with the authority of the deponents to the third and fifth respondents opposing

affidavits stating that they have not annexed any documentation to indicate that they indeed have authority to depose to the

affidavits. The applicant ignores the fact that the matter was brought as an urgent one and that the papers were prepared in haste and that annexing letters of authority or resolutions could therefore prove difficult. There is accordingly no merit in this contention.

[7] See in this regard Johan Meyer “Interdicts and Related Orders” July 1993.