Mbangi v Minister of Safety and Security and Others (862/09) [2010] ZAECMHC 18 (8 April 2010)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE HIGH COURT: MTHATHA)

CASE NO: 862/09

DELIVERED ON : 08/04/10

In the matter between:

EUNICE FEZIWE MBANGI Applicant

And

THE MINISTER OF SAFETY AND

SECURITY First Respondent

THE STATION COMMISSIONER,

CENTRAL POLICE STATION, MTHATHA Second Respondent

JUDGMENT

NHLANGULELA J:

[1] The applicant seeks an order directing the respondents to return a motor vehicle which is described as a Toyota Corolla with registration letters and number DLN 074 EC (the motor vehicle). The motor vehicle was removed from the applicant at the behest of the employees of the respondents without a search warrant on 08 May 2008 on an alleged suspicion that it had been used in the

commission of robbery.

[2] The issue that must be decided is whether the motor vehicle is an item liable to be seized as envisaged in s 20 (a) and (b) read with ss 21 (1) and 22 (b) of the Criminal Procedure Act No. 51 of 1977 (the Act).

[3] Subsections 20 (a) and (b) of the Act read:

“ The State may, in accordance with the provisions of this Chapter, seize anything (in this Chapter referred to as an article)-

(a) which is concerned in or is on reasonable grounds

believed to be concerned in the commission or suspected commission of an offence, whether within the Republic or elsewhere;

which may afford evidence of the commission or

suspected commission of an offence, whether within the Republic or elsewhere; or .

(c ) …”

In terms of s 21 (1) an article referred to in s 20 shall be seized only by virtue of a search warrant issued by a magistrate or judge under certain circumstances. In the absence of a search warrant the article may still be seized but subject to the provisions of s 22 (b) of the Act which read as follows:

“ A police official may without a search warrant search any person or container or premises for the purpose of seizing any

article referred to in section 20 -

(a) …

(b) if he on reasonable grounds believes-

(i) that a search warrant will be issued to him under paragraph (a) of section 21 (1) if he applied for such warrant; and

(ii) that the delay in obtaining such warrant would

defeat the object of the search.”

[4] It is common cause that the legal basis of the applicant’s case is akin to a remedy of mandament van spolie. To succeed the applicant must show that she enjoyed possession, which is peaceful and undisturbed, of the motor vehicle and that the respondents deprived her of such possession forcibly or wrongfully against her consent. See: Yeko v Qana 1973 (4) SA 735 (A) at 739. It appears from the facts of this case that the relief sought is being opposed based on the defence of law that the suspicion held by the employees of the respondents, that the motor vehicle had been used in the commission of a crime of robbery, entitled the respondents to search, seize and continue to keep the vehicle until the finalization of criminal proceedings that the State brought against the driver of the motor vehicle. In essence the respondents have raised a defence of right. See : Diepsloot Residents’ and Land Owners’ Association and Another v Administrator, Transvaal [1994] ZASCA 24; 1994 (3) SA 336 (A) at 34SC.

[5] There is a point in limine that was raised for the first time in the heads of argument for the respondents. In the circumstances the Court is enjoined to consider the point in limine on the basis of the founding affidavit of the applicant. Mr Gagela, counsel who appeared on behalf for the respondents, submitted that the applicant should be non-suited for the relief of mandament van spolie because he did not bring the application within a reasonable time. Counsel placed reliance on the case of Le Riche v PSP Properties CC & Others 2005 (3) SA 189 (C). The determination of reasonableness or otherwise of the time in which the application has been brought is a question of fact. The facts stated in the founding affidavit are that the motor vehicle was purportedly impounded by the police on 08 May 2008, and has been kept by the police ever since. During the intervening period the driver of the motor vehicle was charged with robbery and a criminal trial is as yet to be finalized. The date stamp on the notice of motion shows that the application was brought on 11 May 2009. To my mind it cannot be inferred from these facts that the applicant acquiesced in both the impounding and continued detention of her motor vehicle. I do not think that it was imprudent for the applicant to delay her application because criminal proceedings were commenced with and the motor vehicle would be an exhibit in that case. I can find no other yardstick on which to assess the nature of delay in this matter. Suffice it to say that the consideration of time alone is inadequate and the conclusion that the applicant abandoned her claim for the return of her motor vehicle would be unreasonably. Moreso there is no complaint that the delay is prejudicial to the respondents. Consequently, the point in limine cannot be sustained.

[6] The next issue for determination is whether the motor vehicle was an item liable to be seized. It was correctly submitted by Mr Notyesi, the legal representative for the applicant, that the suspicion or belief that Inspector Somi, the policeman who impounded the motor vehicle, should have entertained before it can be said that the motor vehicle is liable to be seized in terms of s 20 of the Act is a question of fact to be determined objectively. For this submission he relied on a reported case of Ndabeni vs Minister of Law And Order And Another 1984 (3) SA 500 (D). The case of Ndabeni, supra, has been followed consistently in this division over many years. Recourse to the relevant facts is therefore necessary.

[7] The facts of this application appear from the founding, answering and replying affidavits that were filed on behalf of the parties.

[8] The version of the applicant is the following: The motor vehicle is the property of the applicant. During May 2008 it was impounded by Inspector Somi whilst being driven by Mxolisi Mbangi (Mxolisi), the son of the applicant, on the N2 public road in Mt Frere district. When impounding the motor vehicle the police asked where Mxolisi was coming from and going to. He replied that he was from Kokstad and driving to his home at Ngqeleni. He complied with a request to produce registration documents of the motor vehicle and to produce a driver’s licence. Thereafter, the policeman told him that he suspected that the motor vehicle was a stolen motor vehicle because he looked too young for her mother to have been able to entrust the use of the vehicle in him. Then another policeman came and shouted that the motor vehicle was suspected to have been used in a robbery in Ntabankulu by reason of its colour. Mxolisi was then dispossessed of the motor vehicle, arrested and detained in a holding cell at Mthatha Central Police Station until the next day when he was caused to appear in court where he was granted R1 500,00 bail without pleading to the charge. At the Central Police Station the vehicle was searched and certain goods were found in it. Asked where the goods came from, he explained that he bought the goods in Kokstad for his mother. The police were not persuaded by that explanation as they believed that the goods were looted during robbery. Mxolisi disputed that the motor vehicle had been used in the commission of robbery and that the goods were a loot from a robbery.

[9] The version of the respondents is the following: Inspector Somi of Mt Frere Police Station stated that he and Constable Siziba were doing patrol duty on 08 May 2008 at about 22h00 when he received a report from Inspector Cawe through the police radio that he should look out for and seize a Toyota Corolla motor vehicle that was red in colour because such vehicle had been seen in a robbery in Ntabankulu. According to the report the motor vehicle would be occupied by two Indian and two Black male persons. He indeed saw a motor vehicle fitting the description as given by Inspector Cawe and noticed that the motor vehicle was registered

under plate letters and number DLN 074 EC and occupied by two male persons, an Indian and African. As he was speaking to Mxolisi and an Indian male person, who was a passenger, one Mr Abid Hussein arrived. Mr Hussein was in company of three other male persons. Mr Hussein informed the Inspector that the motor vehicle of the applicant was involved in a robbery of his shop at Ntabankulu and that the occupants of the motor vehicle before them were responsible for the robbery. Inspector Somi then stated that he was satisfied that the version of Mr Hussein “tallied” with the police radio report of Inspector Cawe. He then stated that he arrested both suspects without much ado to conduct further investigations. At the same time he seized the motor vehicle. A search of the motor vehicle was conducted upon arrival at the police station “with the intention of ascertaining whether or not it was not (sic) conveying any article and/or goods that were robbed from the complainant’s shop”. He stated that he found the following articles in the boot of the vehicle:

a red and black jacket

one black leather jacket

three jeans pair of trousers

one pair of sandals

one lucky stick

one salotype

six padlocks

one DVD 1195.

[10] According to Inspector Somi the complainant, Mr Hussein, had claimed that the goods found in the vehicle were his and that they had been robbed at his shop together with a sum of R16 000,00 and “a lot of goods which were still missing”.

Mr Hussein also claimed that the men who robbed his shop were five in number. The Inspector then stated that based on the information

given in his affidavit he was convinced that he could have obtained a warrant to arrest Mxolisi, seize the motor vehicle and search it had he found time to apply for one. He concluded further that obtaining a warrant would have defeated the object of searching and seizing the motor vehicle. Concerning the issue of return of the motor vehicle to the applicant Inspector Somi stated as follows:

“ I respectfully contend that it will be too risky to release the motor vehicle to applicant as the latter is aware that in the event of conviction of her son, the court has a discretion to declare the motor vehicle forfeited to the state.”

[11] The applicant stated in his replying affidavit that there was no link established by the respondents between his motor vehicle and the motor vehicle which was involved in the alleged robbery. He stated further that there was no link between the goods found in the motor vehicle and the goods which were allegedly robbed. The identity of the goods that were allegedly missing was unknown.

He also stated that the sum of R16 000,00 that is alleged to have been robbed was not found in the motor vehicle.

[12] It is on the strength of the aforegoing facts, which are not disputed, that a determination of the issue whether the motor vehicle was an item liable to be seized should be made. On the facts there is common cause that the applicant was in possession

of the motor vehicle, it was removed by the respondents forcibly and without her consent on suspicion that it had been used in the commission of robbery and that Mxolisi is facing a charge of robbery involving use of the motor vehicle. The only issue for determination is whether the respondents were entitled by law to remove the motor vehicle from the applicant.

[13] The legal defence of right raised by the respondents is based on the provisions of s 22 (b) of the Act. In terms of s 21 (1) of the Act Inspector Somi could seize the motor vehicle without a search warrant if he can persuade the Court that the provisions of s 22 (b) justified such seizure. The right of the Inspector to search and seize the motor vehicle must be based on reasonable grounds for a belief that the motor vehicle in question was concerned in the commission or suspected commission of an offence and/or was intended to be used in the commission of an offence. See the case of Hiya v The Minister of Safety and Security And Another Case No. 506/99 (Tk). The law on warrantless searches and seizures is trite: Since the Inspector did not have a warrant he must prove that he had reasonable grounds to believe that a search warrant would be issued to him if he had applied for it to the magistrate or judge. Further, in view of the fact that search and seizure constitute a diminution of an entrenched right to own/possess property in terms of s 25 of the Constitution restrictive interpretation of the law that permits warrantless searches and seizures should be favoured. So, the circumstances which prevailed at the time of seizure of the motor vehicle will be decisive of the matter. In this regard Mr Gagela submitted that it was held in City of Cape Town v Rudolph (2003) 3 All SA 517 (C) that a defence to a spoliatory relief based on a statutory provision must establish that the dispossession occurred strictly

within the limits of a statute that created the right to dispossess. This is a correct exposition of the law.

[14] The admitted facts are that Inspector Somi was the person who gave effect to seizure of the motor vehicle on the N2 road and search thereof at the Police Station without a warrant. He acted on the information gathered from Inspector Cawe through a police

radio and Mr Hussein. The information received by him was not reasonable in my view. The information he gathered was that he must

look for a motor vehicle which had neither identificatory marks nor satisfactory description. Yet the motor vehicle was expected to be distinct from other motor vehicles driven on the N2 road towards both Mt Frere and Kokstad directions. The motor vehicle he found did not have four or five men as the occupants. The indentificatory features of the occupants were not given. Yet the pursuit was presented as having been fresh. There was no sum of R16 000,00 found in the motor vehicle. The goods that were recovered, albeit ex post facto, were never described by Inspector Cawe and Mr Hussein prior to the seizure of the motor vehicle and discovery thereof in the motor vehicle. Both Inspector Somi and Mr Hussein could only describe the goods after the motor vehicle had been seized and searched at the Police Station. There is no evidence on affidavit to show that the explanation by Mxolisi that the goods were bought in Kokstad was unreasonable. A link between the goods and the shop of Mr Hussein was not established at all. On the aforegoing facts Inspector Somi could not have had a reasonable belief that the motor vehicle had been used in the robbery or was suspected that it would be used in the commission of an offence.

[15] To my mind, the investigations conducted after the motor vehicle had already been seized confirm the veracity of the applicant’s version that Inspector Somi did not have reasonable grounds to believe that the motor vehicle was concerned in the commission of robbery; and therefore liable to be seized. In these circumstances Inspector Somi would not be granted a search warrant if he had first applied for one before he seized the motor vehicle.

[16] Consequently, the respondents have failed to justify the seizure of the motor vehicle on legal grounds. The act of spoliation is therefore proved. There is no further reason to allow the continued detention of the motor vehicle by the respondents to continue.

[17] It was submitted by Mr Notyesi that the applicant would be amenable to an order that the motor vehicle be made available to the police as and when it is required for the purposes of a pending criminal trial against Mxolisi. Mr Notyesi referred to the case of Shumane v The Minister of Safety & Security and 2 Others, Case No. 550/2002 (Tk) dated 06 January 2003. In that case Peko J granted such an order. Mr Gagela was not opposed to such order being granted. I am prepared to grant such order as it has been accepted practice that it may be so granted despite the law that in spoliation proceedings a thing spoliated must be returned to the possessor without any qualification. Had there been resistance to such practice being applied in this case I would not be obliged to follow the practice at the expense of a well established remedy of mandament van spolie.

[18] The costs of this application should be borne by the respondents on party and scale.

[19] In the result the following order shall issue:

The search, seizure and continued detention of the applicant’s

motor vehicle to wit, a Toyota Corolla with registration letters and numbers DLN 074 EC (the motor vehicle) be and is hereby declared unlawful.

The respondents be and are hereby directed to release the motor vehicle to the applicant forthwith.

The applicant be and is hereby interdicted from disposing of or altering or tampering with the motor vehicle in any manner whatsoever pending the finalization of criminal proceedings already instituted against Mxolisi Mbangi; and the motor vehicle to

be produced to an investigating officer and the criminal court whenever the applicant is required to do so.

4. The respondents to pay costs of the application jointly and severally, the one paying and the other being absolved from liability.

_____________________________

Z.M. NHLANGULELA

JUDGE OF THE HIGH COURT

Date of hearing : 16 March 2010

For the applicant : Mr M. Notyesi of

Mvuzo Notyesi Inc

MTHATHA

For the respondents : Adv. F.S. Gagela

Instructed by : B. Makade Inc