Vusizwe Security & Cleaning Services (Pty) Ltd and Others v Minister of Police and Others (2019/33722) [2019] ZAGPJHC 409 (4 October 2019)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2019/33722

DATE: 4th October 2019

In the matter between:

VUSIZWE SECURITY & CLEANING SERVICES (PTY) LTD

First Applicant

IZIMPONDO ZE AFRIKA SECURITY SERVICES (PTY) LTD

Second Applicant

XULU, VUSUMUZI BONGINKOSI

Third Applicant

and

THE MINISTER OF POLICE

First Respondent

THE STATION COMMISSIONER,

JOHANNESBURG CENTRAL POLICE STATION

Second Respondent

THE INVESTIGATING OFFICER, JOHANNESBURG

CENTRAL POLICE STATION SAPS CAS NO: 415/08/2019

Third Respondent

JUDGMENT

Adams J:

[1]. This is an opposed urgent application by the first, second and third applicants for the return of their licenced firearms, which were confiscated on the 7th of August 2019 by members of the South African Police Services during an anti-crime operation and a raid in the central business district of Johannesburg. The application of the applicants is based on the legal remedy of mandament van spolie, which has been part of our law for generations.

[2]. The first and second applicants are security companies, which provide to their clients security services, including patrolling by security guards and guarding of their clients’ private and business premises. The third applicant is a director of the first applicant, which is a joint venture partner of the second applicant, the joint venture operating in the security industry.

[3]. As and at the 7th of August 2019 the applicants were in peaceful and undisturbed possession of twelve firearms, the serial numbers of which are listed

by the applicants in the notice of motion. These firearms are owned by and licensed to the applicants, and are used by the applicants in their security operations on a daily basis. In a way, the firearms are the tools of trade of the applicants. The applicants had acquired these firearms lawfully and had at the relevant time stored them at their business premises in central Johannesburg. It bears emphasising that it is common cause between the parties that the applicants were lawfully in possession of these firearms and they were licenced in favour of the applicants, thus legally entitling the applicants to possess these firearms.

[4]. On Wednesday, the 7th of August 2019, the applicants’ possession of these firearms was summarily and unceremoniously disturbed by members of the South African Police Service (‘SAPS’), who deprived the applicants of such possession by removing the firearms to the

Johannesburg Central Police Station and/or to the SAPS Forensic Science Laboratory in Pretoria. This occurred during a well-orchestrated anti-crime operation and a lawful raid on a number of business premises in the Johannesburg CBD.

[5]. On first principles, the members of the South African Police Services have performed an act of spoliation in respect of the firearms of the applicants. The applicants are therefore entitled to a return of the firearms. However, the respondents opposed the application on the basis that they were entitled to seize the firearms in terms of the provisions of section 20 of the Criminal Procedure Act, Act 51 of 1977 (‘the CPA’), which provides as follows:

‘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 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.’

[6]. It is the case of the respondents that on the 7th of August 2019, when during the operation the police officers entered the business premises of the applicants, they found ‘firearm

magazines, ammunition and a firearm that were not stored in a safe or a storeroom that conforms to the prescripts of SABS Standard 953-1 and 953-2’. This, according to the respondents, was a contravention of regulation 86 of the Firearms Control Regulations of 2004 (‘the FRC’). The respondents also allege that the applicants contravened regulation 67(4) of the FCR as well as certain sections of the Firearms Control Act, Act 60 of 2000 (‘the FCA’), relating to the storage and safekeeping of firearms when not carried on one’s person. In sum, the respondents allege that the firearms were stored in loose standing safes when the FCA and the regulations required the safes to be permanently affixed or attached to the floor or a wall. This is denied by the applicants, who remain adamant that they complied with the provisions of the FCR and the FCA. Their version, so the applicants contend, is confirmed by the fact that at no stage during the whole unsavoury saga was anyone charged with contravening any of the provisions of the FCR and the FCA. In my view, there is merit in this contention on behalf of the applicants.

[7]. There was however an arrest of the director of the second applicant, one Ms Ndhlovu, who was arrested on a suspicion of being in possession of an unlicensed firearm. The applicants’ response to this allegation is that this particular firearm was in fact not a firearm, but a toy gun, which had been confiscated from armed robbers by security guards of the applicants a few days prior to the raid. The toy gun the applicants had held onto until such time as the third applicant would return from his trip from Kwazulu-Natal, whereafter it would have been dealt with. This firearm is the main justification for the seizure of the twelve firearms, the reasoning by the police being that these firearms were concerned in or was reasonably suspected to be concerned in the commission of an offence or offences as per the provisions of s 20 of the CPA.

[8]. The question therefore is whether this is justification for the seizure of the firearms by the police. I shall return to this aspect of the matter shortly.

Urgency

[9]. The respondents also oppose the application on the basis that it is not urgent. In any event, so the respondents submit, any urgency which does exist is self-created by the applicants, who could and should have brought this urgent application sooner than the applicants did, having regard to the fact that they were deprived of their possession of the firearms on the 7th of August 2019.

[10]. As indicated above, the applicants operate their businesses in the security industry and an important part of their businesses is the provision of armed security services. It is self-evident that without their firearms, which, as I indicated above, are the tools of trade of the applicants and their employees, the applicants are severely hamstrung in the conduct of their business and the rendering of their security services to their clients. There can be no doubt about that. The present state of affairs no doubt is a concern for the clients of the applicants and there is a real risk of the applicants losing business as a result of them not being able to service the clients optimally.

[11]. I do not believe that there was undue delay in the launching of this urgent application. As explained by the third applicant in his founding affidavit, the police officers who took the firearms on the 7th of August 2019 indicated that the firearms would be returned within two days or so, which never happened. Thereafter, he made enquiries

with the police from time to time, but he was never given a satisfactory answer as to exactly when the guns would be returned to

the possession of the applicants. At some point, the police told the third applicant that they would return the guns within a month, and the applicants understandably remained hopeful that the firearms would be returned to them.

[12]. On the 16th of September 2019 the applicants consulted their present attorney of record and he, in a last attempt to resolve the matter, addressed a demand to the respondents on the 18th of September 2019. Despite such demand the respondents failed to return to the applicants their firearms, and it was then decided to launch this urgent application.

[13]. I am satisfied that this matter is urgent and that there has not been an unnecessary delay in the launching of the urgent application.

The Law & its Application in casu

[14]. This is a spoliation application. There are two issues, namely whether the prerequisites of spoliation have been satisfied on the facts above, and associated with this whether the confiscation was unlawful.

[15]. A spoliation order is a final order. Spoliation takes place when a person in possession is wrongfully deprived of possession of certain property. There must be a holding or possession by the applicants, with the intention of securing a benefit, and the deprivation thereof by self-help (as opposed to a court order), consent or a statutory right to deprive the applicants of possession. That is peaceful possession and a wrongful deprivation.

[16]. In the context of the seizure of a motor vehicle, the Constitutional Court in Ngqukumba v Minister of Safety & Security & Others 2014 (5) SA 112 (CC), held that the mandament van spolie is applicable to the return of vehicles by the police if unlawfully seized even if engine and chassis numbers have been tampered with. The aim is the restoration, before all else, of unlawfully deprived possession, as a motor vehicle might be perfectly lawfully possessed even with tampered identification if there is lawful cause for such possession. The lawfulness or otherwise of possession post-dates restoration and would have to be established at a subsequent hearing.

[17]. All that is to be considered, at the spoliation stage, is possession and unlawful deprivation. If this is established, restoration is ordered even to a thief or robber – as it is only after self-help is purged that the lawfulness of possession becomes relevant.

[18]. As I indicated above, in this matter it is clear that there was possession of the firearms in the sense required and it must be returned to the applicants unless it was lawfully seized – in this case subject to the statutory entitlement to seize.

[19]. As set out in Magobodi v Minister of Safety and Security and Another 2009 (1) SACR 355 (TkHC) 359:

‘[8] Searches and seizures must, in general, be carried out in terms of legislation which sets out the power to search and seize. The legislation that we are concerned with in this matter is the Criminal Procedure Act 51 of 1977 (the Act), in particular, chapter 2 thereof. Section 20 of the Act provides that the State may, in accordance with the provisions of ch 2, seize any article which is concerned in or on reasonable grounds is believed to be concerned in the commission of an offence, or which may afford evidence of the commission or suspected commission of an offence, or which is intended to be used in or is on reasonable grounds believed to be intended to be used in the commission of an offence.’

[20]. Section 20 of the CPA was considered in many cases by the courts. In Ndabeni v Minister of Law and Order and Another 1984 (3) SA 500 (D) Didcott J stated the following at 511D - E:

'The second respondent [that is the policeman concerned] no doubt thought that there were reasonable grounds for the belief he held. That, however, was by the way. Section 20 of the Criminal Procedure Act calls for the existence in fact of reasonable grounds. And whether these exist in a given case must be determined objectively. Milne J

once said:

''There can only be reasonable cause to believe . . . where, considered objectively, there are reasonable grounds for the belief. . . . (I)t cannot be said that an officer has reasonable cause to believe . . . merely because he believes he has reasonable cause to believe.”’

[21]. The quotation referred to is from the judgment by Milne J in Watson v Commissioner of Customs and Excise 1960 (3) SA 212 (N).

[22]. In interpreting s 20 it is clear that the onus is on the police to prove, objectively viewed, the existence of ample facts upon which the police base the reasonable belief, which facts must exist at the time when the police acted without a warrant, and not only at a later stage.

[23]. In casu I am not persuaded that the police have been able to demonstrate that the requirements of s 20 of the CPA had been met. The sum total of the facts on the basis of which the police confiscated the firearms is that they found

one firearm, which they believed to be an unlicensed firearm. This is disputed by the applicants. The respondents contend that this was evidence that the seized firearms were concerned in the commission of an offence, that offence being possession of an unlicensed firearm. How they could draw this conclusion, in the light of the surrounding circumstances, notably the evidence by the applicants that these firearms were licensed, defies logic.

[24]. The respondents further contend that the discovery of the unlicensed firearm gave rise to a believe on reasonable grounds that the seized firearms were concerned in the commission or suspected commission of an offence, presumably the crime of being in possession of an unlicensed firearm. I disagree. Objectively speaking, having regard to the circumstances of this matter, there are no grounds let alone reasonable ones on which it could be concluded that the attached firearms were concerned in the commission of an offence. In any event, the respondents are equivocal in the extreme as regards the details of the offence or offences in which the guns were supposedly concerned. What is even more instructive is that in their answering affidavit deposed to on the 30th of September 2019, that is some fifty four days after the firearms were confiscated, the respondents were unable to dispute the very simple fact relating to whether or not the one firearm found at the business premises of the applicants and which is the cause of all the trouble, is a toy gun or not.

[25]. I am therefore of the view that on the relevant facts in this matter the deprivation by the police of the applicants’ possession of firearms was not lawful in terms of Section 20 of the CPA. In my judgment, viewed objectively, the facts in this matter could not give rise to a reasonable belief that the firearms were concerned in the commission of any crime. The firearms were utilised by the applicants in the conduct of their business as security companies. The applicants are licensed to possess these firearms. The aforegoing facts are common cause. How then does one get from this set of facts to a conclusion that the firearms were concerned in or suspected to be concerned in the commission of the offence of being in possession of an unlicensed firearm? I ask this question rhetorically.

[26]. In the result and in these circumstances the seizure was not a lawful seizure in terms of s 20 the CPA, and the applicants’ possession of the firearms, and the other articles confiscated, should be restored.

[27]. In the circumstances, I am of the view that the applicants are entitled to the relief sought in their notice of motion.

Costs

[28]. The general rule in matters of costs is that the successful party should be given his costs, and this rule should not be departed from except where there are good grounds for doing so, such as misconduct on the part of the successful party or other exceptional circumstances. See: Myers v Abramson, 1951(3) SA 438 (C) at 455.

[29]. I can think of no reason why I should deviate from this general rule.

[30]. I therefore intend awarding cost against the first respondent in favour of the first to third applicants.

Order

Accordingly, I make the following order:-

(1) The applicants are granted leave to move this application as one of urgency.

(2) The first, second and third respondents shall forthwith restore the applicants’ possession of and return to the applicants the licensed firearms, which they seized on the 7th of August 2019 at the business premises of the applicants in central Johannesburg, which firearms bear the following serial numbers:

(1) 3610256; (2) 628104; (3) 628103; (4) 628105; (5) K0475061; (6) K0475392; (7) 519917; (8) T1102-16E16852; (9) RIA1626779; (10) 48201035; (11) CZ A981650; and (12) TX25776.

(3) The first, second and third respondents shall forthwith restore the applicants’ possession of and return to the applicants any and / or all rounds of ammunition, firearm boxers, firearm holsters, magazine poaches and any other articles, which they seized on the 7th of August 2019 at the business premises of the applicants in central Johannesburg.

(4) The first, second and third respondents shall forthwith restore the applicants’ possession of and return to the applicants any and / or all firearm licences, firearm licence cards, PSIRA receipt books, and any other books and documents, which they seized on the 7th of August 2019 at the business premises of the applicants in central Johannesburg.

(5) The first respondent shall pay the applicants’ cost of this urgent application.

_________________________________

L R ADAMS

Judge of the High Court

Gauteng Local Division, Johannesburg

HEARD ON: 1st October 2019 JUDGMENT DATE: 4th October 2019 FOR THE APPLICANTS: Advocate INSTRUCTED BY: Mtumtum Incorporated FOR THE FIRST, SECOND & THIRD RESPONDENTS: Advocate INSTRUCTED BY: The State Attorney, Johannesburg