Rossi and Others v Minister of Safety and Security and Others (1599/2013) [2013] ZAFSHC 160 (29 August 2013)

Rossi and Others v Minister of Safety and Security and Others (1599/2013) [2013] ZAFSHC 160 (29 August 2013)

The court found that the applicants had established, on the papers, that no criminal proceedings were pending and there was no reasonable likelihood of such proceedings being instituted in the foreseeable future. The Director of Public Prosecutions had withdrawn charges and instructed the return of lawfully possessed property. The respondents failed to provide substantive information regarding ongoing investigations or the necessity of retaining the goods. The mere presence of traces of gold on the equipment does not justify continued retention, as there is no prohibition against possession of laboratory equipment or other seized items. The respondents' conduct in retaining the property...

Citation
[2013] ZAFSHC 160
Parties
Applicant: Alberto Shadrech Rossi; Applicant: Francis Albert Hawkins; Applicant: Emile Rossi; Applicant: Enrico Pentene; Applicant: Besa Engineering (Pty) Ltd; Applicant: Gefco (Pty) Ltd; Respondent: Minister of Safety and Security; Respondent: Minister of Justice and Constitutional Development; Respondent: Director of Public Prosecutions; Respondent: K Herbert
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
29 August 2013
Case Number
1599/2013
Procedural Posture
Urgent Application / Application for Return of Seized Property Following Withdrawal of Criminal Charges
Outcome
Application granted; respondents ordered to return seized property and pay costs.
Judges
P. J. T. De Wet
Legal Topics
Search and Seizure, Return of Seized Property, Criminal Procedure Act Section 20, Criminal Procedure Act Section 31, Precious Metals Act
Criminal Law Civil Procedure Search and Seizure Return of Seized Property Criminal Procedure Act Section 20 Criminal Procedure Act Section 31 Precious Metals Act

Case Brief

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Parties

Alberto Shadrech Rossi

Applicant

Francis Albert Hawkins

Applicant

Emile Rossi

Applicant

Enrico Pentene

Applicant

Besa Engineering (Pty) Ltd

Applicant

Gefco (Pty) Ltd

Applicant

Minister of Safety and Security

Respondent

Minister of Justice and Constitutional Development

Respondent

Director of Public Prosecutions

Respondent

K Herbert

Respondent

Procedural Posture

Urgent Application / Application for Return of Seized Property Following Withdrawal of Criminal Charges

Legal Issues

  1. 1 Whether the respondents are lawfully entitled to retain goods seized from the applicants after criminal charges were withdrawn.
  2. 2 Whether the applicants have established that there is no reasonable likelihood of criminal proceedings being instituted in connection with the seized goods.
  3. 3 Whether the respondents acted oppressively by retaining the property without reasonable prospect of prosecution.

Ratio Decidendi

The court found that the applicants had established, on the papers, that no criminal proceedings were pending and there was no reasonable likelihood of such proceedings being instituted in the foreseeable future. The Director of Public Prosecutions had withdrawn charges and instructed the return of lawfully possessed property. The respondents failed to provide substantive information regarding ongoing investigations or the necessity of retaining the goods. The mere presence of traces of gold on the equipment does not justify continued retention, as there is no prohibition against possession of laboratory equipment or other seized items. The respondents' conduct in retaining the property...

Court Disposition

Application granted; respondents ordered to return seized property and pay costs.

Orders

  • Prayer 1 of the notice of motion is granted: respondents must return within 5 days all goods removed from the premises at 28th Street, Industrial, Welkom on 6 June 2012, including goods listed in annexures B, C, and D to the founding affidavit, excluding goods confiscated from illegal miners.
  • First and second applicants must identify the goods within 48 hours of this order; fourth respondent must facilitate this process.