Zozi v Minister of Police and Others (CA&R12/2014, EC/MTHA/RC269/13) [2014] ZAECMHC 33 (19 September 2014)

IN THE HIGH COURT OF SOUTH ARICA

(EASTERN CAPE LOCAL DIVISION, MTHATHA)

CASE NO. CA & R 12/2014

CASE NO. EC/MTHA/RC 269/13

In the matter between:

THOBEZWENI LEORNARD ZOZI

Appellant

and

MINISTER OF POLICE

First Respondent

THE UNIT COMMANDER, SOUTH AFRICAN

POLICE SERVICES, QUMBU

Second Respondent

THE STOCK THEFT UNIT, SOUTH AFRICAN

POLICE SERVICES, QUMBU

Third Respondent

JUDGMENT

LAING AJ:

[1] This is an appeal against an Order given in the Mthatha Magistrates Court on 28 January 2014, in terms of which the magistrate refused an application brought for the return of the Appellant’s goats, seized in consequence of a stock raid carried out by the Respondents.

[2] The Appellant’s application was for an Order that the search, seizure and continued detention of his goats (‘stock’) be declared unlawful. Furthermore, the Appellant sought an Order that directed the Respondents to release his stock, and that interdicted and restrained the Respondents from further unlawfully interfering with the Appellant’s possession of the stock. The Appellant also sought costs.

[3] In his founding affidavit, the Appellant alleged that he had bought 27 goats from a certain Ms Mavambani Notununu in 2007. He had paid for the stock by way of instalments. Two payments had already been made and only a small outstanding balance was left to be settled. The parties had agreed that ownership would only pass on payment of the outstanding balance but the Appellant would take possession of the stock in the interim. He averred that the stock were still registered in Ms Notununu’s name and that it was agreed that she would retain the stock card, pending final payment. On 14 February 2013, the police seized the Appellant’s stock on suspicion that the stock had been stolen. Despite the Appellant’s protests, the stock were impounded. A confirmatory affidavit from Ms Notununu accompanied the application.

[4] The Respondents stated that they had carried out a stock raid in the area. The Appellant had brought his stock to them, upon request, but had failed to produce a stock card. The deponent for the Respondents, Col Thandikhaya Bashe, averred that the Appellant had indicated that the stock had been purchased from Ms Nontyatyambo Nyume and a Ms Nomzi Seplani. The women had apparently confirmed that this was the position, but were unable to produce any stock cards to that effect. Only Ms Nyume’s

confirmatory affidavit was attached to the Respondents’ papers. The Respondents alleged that the police could seize any item in the event of a reasonable suspicion that it had been stolen. The Appellant simply had to produce a stock card to secure the release of his stock.

[5] The magistrate in the court a quo found that the seizure of the Appellant’s stock had indeed been lawful because the Appellant had been unable to show any legal basis for possession. Furthermore, the magistrate held that the appellant was prohibited from being in possession of the stock until he could demonstrate such legal basis.

[6] The Appellant’s main grounds of appeal are as follows:

(a) the magistrate erred in dismissing the application on the basis that the Appellant had not furnished proof of ownership with regard to the stock, as ownership is not a requirement in spoliation proceedings;

(b) the magistrate erred in finding that the seizure of the stock was lawful, as no recognisable defence was laid down in that respect by the Respondents; and

(c) the magistrate erred in finding that the Appellant cannot lawfully possess the stock.

[7] In bringing the application, the Appellant made it clear that it was for a mandament van spolie.[1] This is a possessory remedy. It is described as follows by Van Loggerenberg in Erasmus- Superior Court Practice (Service 45, Juta & Co. Ltd, 2014), at E9-1:

‘[t]he essential characteristic of a possessory remedy is that the legal process whereby the possession of a party is protected (iudicium possessorium), is kept strictly separate from the process whereby a party’s right to ownership or other right to the property in dispute, is determined (iudicium petitorium). The object of the order is

“merely to restore the status quo ante the illegal action. It decides no rights of ownership; it secures only that if such decision be required, it shall be given by a court of law, and not affected by violence. If before the spoliation either party needed a legal decision to establish his rights, he requires it just as much after, as before, the order. He is in no better, and not worse, position than he was before the spoliation. There is consequently nothing inherent in a mandament van spolie which demands that it should be conditioned as being granted pendente lite.”[2]

The reason behind the practice of granting spoliation orders is that no man is allowed to take the law into his own hands, and to dispossess another illicitly of possession of property. If he does so, the court will summarily restore the status quo ante, and will do that as a preliminary to any inquiry or investigation into the merits of the dispute.[3] The rule is spoliatus ante omnia restituendus est.’

[8] Accordingly, it is important to distinguish, in the present matter, between possession and ownership. The application brought by the Appellant was for the return of his stock. It had nothing to do with the question of ownership, in relation to which a vindicatory remedy such as the rei vindicatio would have been more appropriate.

[9] There are two requirements for a spoliation order: firstly, that the applicant was in possession of the property, and, secondly, that the respondent deprived the applicant of such possession forcibly or wrongfully against his or her consent (see Van Loggerenberg, Erasmus- Superior Court Practice, at E9-6; Yeko v Qana 1973 (4) SA 735 (A) at 739; and, more recently, Fizzy Investments CC v Collins NO 2013 JDR 2717 (KZN), at 8-10).

[10] It is common cause that the Appellant had been in possession of the stock. Consequently, it is necessary to determine whether the Appellant demonstrated that he was wrongfully deprived of the stock, against his consent. The stock were impounded by members of the Third Respondent because the Appellant was unable to produce a stock card. Mr Zilwa, arguing for the Respondents, relied on section 20 of the Criminal Procedure Act 51 of 1977. The provisions read 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.’

[11] The Respondents argued that the Appellant’s failure to produce a stock card gave rise to a belief on reasonable grounds that the stock were stolen. Alternatively, Mr Zilwa indicated that the Respondents relied on sections 2 and 9 of the Stock Theft Act 57 of 1959. The relevant provisions state:

‘2 Failure to give satisfactory account of possession of stock or produce

Any person who is found in possession of stock or produce in regard to which there is a reasonable suspicion that it has been stolen and is unable to give a satisfactory account of such possession shall be guilty of an offence.

-----

‘9 Arrest and search without warrant

(1) Any person may, without warrant, arrest any other person upon reasonable suspicion that such other person has committed the offence mentioned in section two or four.

(2) Whenever any justice of the peace, policeman, or owner, lessee or occupier of land reasonably suspects that any person has in or under any receptacle or covering or in or upon any vehicle any stock or produce in regard to which an offence has been committed, such justice of the peace, policeman, owner, lessee or occupier may without warrant search such receptacle or vehicle and remove such covering, and if he thereupon finds any stock or produce in regard to which he reasonably suspects an offence to have been committed, he may without warrant arrest such person and seize such vehicle or receptacle and shall as soon as possible convey such person and the stock or produce so found and the vehicle or receptacle so seized to a police station or charge office.’

[12] The Respondents’ reference to sections 2 and 9 of the Stock Theft Act 57 of 1959 appears to be misplaced. To that effect, section 2 creates an offence but does not expressly authorise the impounding of the stock. Likewise, section 9 permits the arrest of a person without a warrant and allows a police official to seize stock found to have been hidden or transported in circumstances where a reasonable suspicion exists that an offence has been committed. That is not the situation here. On the Respondents’ version, the stock had been brought to the police at their request, along with the stock of every other resident in the area.[4] Crucially, the Respondents stated that:

‘[n]o one was known to be in possession of the stolen goods but all what was needed was that every person should be able to account for the stock s/he is possessing. Even by the time the

applicant could not produce Stock Card for his stock, no one ever indicated that he has stolen the goats. Even to date we are still awaiting his coming back with proof of ownership of the stock [sic].’[5]

[13] The sole justification given by the Respondents for the seizure of the stock was the Appellant’s failure to produce a stock card. No other reason was given.

[14] The Respondents’ reference to section 20 of the Criminal Procedure Act 51 of 1977 is possibly more helpful, but the provision requires a belief based on reasonable grounds that an offence had been or was suspected of having been committed. There is no indication whatsoever that the members of the Third Respondent believed that the stock had been stolen. If the possession of a stock card is a custom or an accepted method of demonstrating lawful possession for the community in which the Appellant resides, then this was not mentioned at all by the Respondents in their papers. In argument, Mr Zilwa was unable to provide any authority to the court for the assertion that the possession of a stock card was a statutory requirement to demonstrate lawful possession. Similarly, no authority could be found for the assertion that the failure to produce a stock card could establish a reasonable ground for the belief that the stock was stolen.

[15] In the circumstances, the court is satisfied that the Appellant demonstrated that he was wrongfully deprived of his stock, against his consent. The requirements for a spoliation order were met.

[16] None of the recognised defences available in relation to spoliation proceedings was raised by the Respondents, viz. denial, impossibility of restoration, and counter-spoliation (see Van Loggerenberg, Erasmus- Superior Court Practice, at E9-11, and Scoop Industries (Pty) Ltd v Langlaagte Estate and GM Co Ltd 1948 (1) SA 91 (W) at 99).

[17] During argument, Mr Notyesi, for the Appellant, referred to the magistrate’s comparison of the seizure with the procedures that could be followed in a police roadblock. It was correctly pointed out by Mr Notyesi that the comparison was incorrect; entirely different legal considerations apply here. The limitations placed on the remedy of mandament van spolie in the seizure of a motor vehicle arise from, inter alia, the police powers of search and seizure contained in section 20 and related provisions of the Criminal Procedure Act 51 of 1977, and amendments to the National Road Traffic Act 93 of 1996 to address situations where tampering with engine or chassis numbers is suspected. Not by any stretch of the imagination can such an argument find application in the present matter.

[18] The court was referred to Ivanov v North West Gambling Board (312/2011) [2012] ZASCA 92 (31 May 2012) by the Appellant. It is clear authority for the position that questions of illegality or wrongfulness of the spoliator’s

possession are irrelevant. The Appellant’s failure to produce a stock card is not relevant in spoliation proceedings.

Moreover, it can certainly not establish, on its own, a reasonable ground for the belief that the stock was stolen, which may otherwise have justified the seizure of the stock in terms of section 20 of the Criminal Procedure Act 51 of 1977.

[19] With regard to costs, no compelling reasons have been advanced by the Appellant for ordering payment on an attorney and client scale. There is no indication from the papers that a punitive costs order is warranted.

[20] In the circumstances, the appeal is upheld.

[21] Consequently, the Order of the court a quo is set aside and replaced with the following Order:

(a) the Respondents are directed to release the stock to the Appellant forthwith;

(b) the Respondents are interdicted and restrained from further unlawfully interfering with the Appellant’s possession of the stock;

(c) the Respondents are directed to pay the costs of the application in the court a quo on a party and party scale, and jointly and severally, the one paying, the others to be absolved; and

(d) the Respondents are directed to pay the costs of the appeal on a party and party scale, and jointly and severally, the one paying, the others to be absolved.

_______________

JGA LAING

Acting Judge of the High Court

I concur.

FBA DAWOOD

Judge of the High Court

Attorney for the Appellant: Mr Notyesi

Instructed by:

Mvuzo Notyeni Inc

2nd Floor, TH Madala Chambers

14 Durham Street

Mthatha

Counsel for the Respondents: Mr Zilwa

Instructed by:

XM Petse Inc

Suite 452, 4th Floor

Development House

York Road

Appeal heard on:

29 August 2014

Judgment delivered:

19 September 2014

[1] See paragraph E8.2, founding papers, p 15 of the record, and C6-11, replying papers, pp 51-53.

[2] Mans v Marais 1932 CPD 352 at 356.

[3] Nino Bonino v De Lange 1906 TS 120 at 122.

[4] See paragraph 7.2 of the Respondents’ answering papers, p 38 of the record.

[5] Ibid (emphasis added).