Mkhuba v Minister of Police and Another (85/2013) [2014] ZAECMHC 2; 2014 (2) SACR 205 (ECM) (13 February 2014)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, MTHATHA)

CASE NO.: 85/2013

DATE: 13 FEBRUARY 2014

In the matter between:

PHUMZILE MKHUBA.............................................Applicant

And

MINISTER OF POLICE..........................First Respondent

STATION COMMANDER LIBODE

POLICE STATION...........................Second Respondent

JUDGMENT

BESHE, J:

INTRODUCTION

[1] This is an application wherein an order in the following terms is sought:

1. This Honourable Court should not declare the administrative action of the respondents in failing to hand over a firearm belonging to the lawful owner or the applicant, declaring such respondents action unlawful, unconstitutional invalid and of no legal force and effect and why such administrative action should not be received and set aside.

2. Directing the first and second respondents to hand over a licenced firearm No. 820394 9mm Pistol Morinco CAL 0587 to the applicant, the lawful owner or compensate him as such.

3. Compelling the first respondent and the second respondent to make such a handing over through his attorneys within (15) fifteen days of delivery of this order upon them, and

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

EVIDENCE

[2] It appears to be common cause that the applicant appeared before the Magistrates’ Court Libode in 2003 in connection with a charge of murder. It is also common cause that at the time he held licence that authorized him to possess the firearm in question, which was issued in 1998. According to the applicant, the charges against him in this regard were withdrawn in June 2005. According to the respondent, however, the matter was removed from the roll pending the availability of a photo album. Whether the charges were withdrawn against the applicant or the matter was removed from the roll, there is no evidence that the matter has since then (2005) been placed back on the roll. Almost nine years down the line. It is also common cause that the firearm in question was seized in terms of Section 20 of the Criminal Procedure Act 51 of 1977 (the Act).

[3] Section 20 of the said Act provides:

“20 State may seize certain articles

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

(b) which may afford evidence of the commission or suspected commission of an offence, whether within the Republic or elsewhere; or

(c) which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence.”

It is trite that Section 20 is intended to assist the police in their investigation of a criminal case. Certainly not as any sort of punishment. Whether the item seized should be forfeited to the state is a decision to be taken later in the event of the person from whom the item was seized being convicted in connection with the said item.

[4] Applicant alleges that after the withdrawal of charges against him he approached the investigating officer of the matter one, Mr. Ngumbela, to enquire what the position would be regarding his firearm. He was advised by the said Ngumbela that there was nothing hindering him from returning his firearm but that he was still busy with other matters. He made several enquiries in person and telephonically since he was based in Rustenburg where he worked in the mines. At times he would take special leave when his annual leave was depleted, in order for him to travel to the Eastern Cape, in particular to Libode to enquire whether circumstances permitted the release of his firearm. This was all however in vain. At times Ngumbela would suggest that he gives him a Christmas (presumably in return for the firearm). This happened until 2011 when, according to the applicant during one of the telephonic conversations Ngumbela informed him that he was no longer working in Libode and referred him to the Station Commander, Libode. He however did not get any joy from the Station Commander, Libode, when he approached him. These antics on the part employees of the first respondent prompted the applicant to launch this application in January 2013.

[5] Respondents oppose the application on essentially two grounds:

(i) There are pending criminal proceedings against the applicant before the Libode Magistrates’ Court. The firearm in question cannot be released to him because it will be used as an exhibit in the said proceedings. Respondents rely on Section 34 of the Criminal Procedure Act 51 of 1977. Section 34 provides that:

“Disposal of articles after commencement of criminal proceedings

(1) The judge or judicial officer presiding at criminal proceedings shall at the conclusion of such proceedings, but subject to the provisions of this Act or any other law under which any matter shall or may be forfeited, make an order that any article referred to in section 33-

(a) be returned to the person from whom it was seized, if such person may lawfully possess such article; or

(b) if such person is not entitled to the article or cannot lawfully possess the article, be returned to any other person entitled

thereto, if such person may lawfully possess the article; or

(c) if no person is entitled to the article or if no person may lawfully possess the article or, if the person who is entitled thereto cannot be traced or is unknown, be forfeited to the State.

(2) The court may, for the purpose of any order under subsection (1), hear such additional evidence, whether by affidavit or orally, as it may deem fit.

(3) If the judge or judicial officer concerned does not, at the conclusion of the relevant proceedings, make an order under subsection (1), such judge or judicial officer or, if he is not available, any other judge or judicial officer of the court in question, may at any time after the conclusion of the proceedings make any such order, and for that purpose hear such additional evidence, whether by affidavit or orally, as he deem fit.

(4) Any order made under subsection (1) or (3) may be suspended pending any appeal or review.

(5) Where the court makes an order under paragraph (a) or (b) of subsection (1), the provisions of section 31 (2) shall mutatis

mutandis apply with reference to the person in favour of whom such order is made.

(6) If the circumstances so require or if the criminal proceedings in question cannot for any reason be disposed of, the judge or judicial officer concerned may make any order referred to in paragraph (a), (b) or (c) of subsection (1) at any stage of the proceedings.”

My understanding of Section 34 is that it applies in instances where the item, in this case, firearm in question, was transferred to court by police for purposes of the trial. There is no evidence that this had occurred in casu.

(ii) That the applicant does not have a valid licence to possess the firearm in question and that therefore the court cannot order that the firearm be returned to him.

In this regard respondents submit that a licence to possess a firearm was issued to the applicant in 1998. Although it does not bear an expiry date, respondent contends that it expired five years after the promulgation or coming into operation of the Firearms Control Act 60 of 2000. According to the answering affidavit that was deposed to by Thandikhaya Bashe, on behalf of the respondents, applicant was informed by both Ngumbela and Station Commander, Libode, to whom he was referred to by Ngumbela after he left Libode, that the firearm could not be released to him since it was going to be used as an exhibit in the case pending against him. No supporting affidavits were deposed to by Ngumbela and Station Commander, Libode.

[6] At the start of these proceedings there was an application for the condonation of the late filing of the answering affidavit. It was filed some four months after a notice to oppose was given. The reason proffered for this was that the parties were engaged in discussions that were meant to achieve a settlement of the matter.

[7] In keeping with what respondents alleges is the reason why the answering affidavit was not filed timeously, namely that they were engaged in settlement discussions with the applicant, two letters have surfaced. The letters are annuxures to applicant’s

replying affidavit. The subject of the first one, which is addressed to the State Attorney, and is from S. Slater, Provincial Head Legal Services, Eastern Cape, is not visible (blackened out). It is dated 13 March 2013. The letter reads as follows:

“1. The above matter refers.

2. Kindly be informed that upon investigations of this matter it transpired that the firearm in question was amongst the firearms

reported stolen at Libode Police Station in January 2005.

3. It is our view that we pay the value of the said firearm.

4. We will wait for your advices.”

The second letter which is from the office of the State Attorney and addressed to applicant’s attorney dated 15 March 2013 reads as follows:

“PHUMZILE MKHUBA // MINISTER OF SAFETY AND SECURITY

We refer to the above matter.

Kindly be advised that in our endeavor to resolve the matter amicably, we are now busy advising client to pay the applicant the value of the firearm.

We kindly therefore request you to furnish us with proof of the value of the firearm.

We further advice that out client can not locate the said firearm and therefore under those circumstances we doubt that the Honorable court can grant an order that it knows cannot be fulfilled.”

[8] This in my view is proof that the firearm is no longer in the possession of the respondent. That the insistence by it that it

cannot be handed to the applicant in view of the fact that he does not have a valid licence to possess it and or it is going to be used in court as an exhibit, is mala fide or respondent knows that same cannot be handed back to the applicant. That this has been the case in 2005 when applicant approached the investigating officer to enquire about the position of the firearm after the charges were withdrawn against him. At the time, in 2005, even if regard were to be had to item 1 of Schedule 1 of the Firearms Control Act 60 of 2000, his licence was still valid. Item 1 of Schedule 1 reads:

“(1) Subject to subitem (2) and item 11, any licence which was issued in terms of the previous Act and which was valid immediately before the date of the commencement of this Act, remains valid for a period of five years from the date on which this Act comes into operation, unless such licence is terminated, cancelled or surrendered in terms of this Act.”

The Firearm Control Act came into operation in 2004.

CONCLUSION

[9] In my view the applicant has made out a case for the relief that he seeks. There is no longer a firearm that can be produced as an exhibit in a criminal case against the applicant. This in view of the evidence that shows that it was stolen from Libode Police Station. In so far as investigations are concerned, it would appear that the firearm in question was sent for ballistic examination, the results are at hand. This rules out the issuing of an order that the firearm be handed back to the applicant. In the alternative applicant prayed that he be compensated for his firearm (see paragraph 2 of the notice of motion). In this regard Mr. Singqumba for the respondent argued that the applicant is not entitled to compensation for his firearm. He referred the court to Section 134 and 135 of the Firearms Control Act which provides that:

“134 Circumstances where no compensation is payable in respect of firearms and ammunition forfeited to State

No compensation is payable to a person in respect of a firearm or ammunition forfeited to the State in terms of this Act-

(a) if the relevant licence, permit or authorization was cancelled in terms of this Act because the holder of the licence had contravened

or not complied with a provision of this Act or a condition specified in that licence, permit or authorization; or

(b) if the holder of the licence, permit or authorization became or was in terms of section 102 or 103 declared unfit to possess a firearm.

135 Circumstances where no compensation is payable in respect of firearms and ammunition seized by State

(1) No compensation is payable to a person from whom a firearm or ammunition was seized by the State if –

(a) no licence, permit or authorization had been issued for such firearm or ammunition to that person in terms of this Act; or

(b) the firearm or ammunition was for any other reason unlawfully in the possession of that person.

(2) The lawful owner of a firearm or ammunition lost or stolen as a result of his or her negligence is not ntitled to claim compensation

if such firearm or ammunition is subsequently seized by the State from another person.”

[10] Section 134 does not apply in casu because the firearm was not forfeited to the state. In so far as Section 135 is concerned, a licence had been issued to the applicant (the person from whom the firearm was seized). The firearm was not unlawfully in his possession at the time it was seized. Subsection 2 does not apply. In my view applicant or his firearm does not fall under any of the categories or scenarios mentioned in Section 135 and is therefore entitled to compensation.

[11] In the result the following order will issue:

The respondents are directed to compensate the applicant for his firearm with serial number 820394, a Norinco CA 0587 pistol that was stolen whilst in the custody of the respondents.

Respondents are ordered to pay the costs of the application the one paying the other to be absolved.

N G BESHE

JUDGE OF THE HIGH COURT

APPEARANCES

For the Applicant : Mr. Qitsi

Instructed by :MESSRS H N MKHONGOZELI ATTORNEYS

C/O T W TETANI ATTORNEYS

29 Sprigg Street

MTHATHA

Ref.: H N Mlungwana

Tel.: 047 – 555 0343

For the Respondent/s :Mr. Singqumba

Instructed by :L SINGQUMBA INCORPORATED

56 Sprigg Street

Suite No. 7 & 8 – Ground Floor

Ref.: Drs/004-Civ/13

Tel.: 047 – 531 0597

Date Heard :11 February 2014

Date Reserved :11 February 2014

Date Delivered :13 February 2014