Choonara v Minister of Law and Order

• Jurisdiction: South Africa
• Judge: Kuper AJ
• Judgment Date: 25 June 1991
• Citation: 1992 (1) SACR 239 (W)
• Hearing Date: 25 June 1991
• Counsel: J H Josephson (with him A Loubser) for the applicant C J Grobler for the respondent
• Court: Witwatersrand Local Division

Kuper AJ:

In August 1988 Detective Sergeant Aucamp of the South African F Police formed the view that a certain Chevrolet Corvette Stingray motor vehicle, registration number GWP 000 T, was a stolen vehicle. He asked the applicant, who claims to be the owner of the vehicle and in whose possession it was, to bring it to the Vereeniging Police Station. The applicant did so in that same month. Since then the vehicle has remained in the possession of the South African Police.

G In April 1989 the applicant launched proceedings to recover the vehicle. The application was opposed and in June 1989 an answering affidavit was filed which drew in its turn a reply on 3 July 1989. On 26 September 1989 the respondent filed a supplementary answering affidavit, to deal, as was said, with new matter raised in the reply of the applicant. The date of filing of the supplementary answering affidavit coincided with the calling of the matter before Van der Walt J, before H whom it had been enrolled. The learned Judge ordered the matter to be postponed sine die and reserved the question of costs. He also ordered, and it is a matter to which I will return, that both parties be given leave to supplement their affidavits and then to re-enroll the matter. The respondent took advantage of that invitation and filed a second supplementary affidavit on 21 November 1989 and a third such supplementary affidavit on 16 May 1990.

I In reply to all of this the applicant supplemented his papers by further affidavit filed on 7 February 1991. This matter has, therefore, wended slowly towards a hearing taking many an unexpected turn whilst so doing.

In his founding affidavit the applicant alleged that he was the lawful owner of the vehicle and that he had purchased it new in 1982 from J P Motor Company, who had in turn acquired it from Kahn Brothers (Pty) Ltd. He said he had been in continuous possession of the vehicle since J delivery to him, save for an

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A occasion when the engine was replaced by a garage known as Big Bear Conversions. Applicant says that some weeks after Aucamp had asked for the vehicle to be taken to the Vereeniging Police Station, the latter 'guaranteed' applicant that the vehicle had been stolen and the chassis number had been changed.

According to the applicant Sergeant Aucamp warned him to appear in court on 13 October 1988, apparently to answer a charge of motor theft, B but when he went to court there was no record of the case and the clerk of the court and the prosecutor knew nothing about it. He says that thereafter his attorney made demands for the return of the vehicle without success. He concludes his affidavit with these allegations:

'8. In all circumstances, I submit that there is no reason C whatsoever for my motor vehicle to remain in possession of the South African Police having regard to the fact that there is no proof that the motor vehicle is stolen, no charge has ever been laid against me and that I have sufficient documentation to prove that I purchased the motor vehicle new.'

In his answer Sergeant Aucamp claims to have taken possession of the vehicle in terms of s 20(a) and/or (b) of the Criminal Procedure Act 51 of 1977. He did so, he says, because he had ascertained that the chassis D number of the vehicle had been removed and replaced by another number. He also drew attention to the unbusinesslike and informal nature of the transactions between Kahn Brothers (Pty) Ltd and J P Motors, and J P Motors and the applicant, as evidenced by the documents which the applicant produced. He had, he said, tried to trace one Hilton Jesseman who was connected in some way with the transaction, although without E success.

He interviewed a director of Kahn Brothers, who had confirmed the transaction, at least as far as the sale to J P Motors was concerned.

Sergeant Aucamp, however, criticises the documents which Kahn Brothers provided and points to certain discrepancies in those documents, including one relating to the engine number. He also annexed to his F papers various photographs intended to show the chassis number and engine number of the motor vehicle. He said that since the vehicle was manufactured in America and information could only be obtained from the suppliers of the vehicle concerning the vehicle, it was necessary to enter into correspondence in order to take the investigations forward.

Therefore, he said, such investigations could not be conducted G personally and the investigation would be delayed. He added that the vehicle did not appear on the list of stolen vehicles maintained by the South African Police, but nonetheless he expressed the opinion that the vehicle was a stolen one and that it may well have been stolen in a homeland or neighbouring State and not reported to the South African Police as stolen.

In his reply the applicant denied that the vehicle had been H legitimately taken under s 20(a) and/or (b) of Act 51 of 1977. He contended that the engine number which now appears on the vehicle must be that of the replacement engine. He says that he never replaced the chassis number or the chassis of the motor vehicle since he bought it and it may be that the discrepancy in those numbers arose from the replacement of the engine.

The applicant says that he cannot believe that it has taken so long to I obtain information from the United States of America and points to the existence of modern communication systems which ought to have enabled the police to clear the matter up. He submits that in the result there is no reason to believe that the vehicle was stolen and he ought to have it returned to him.

On 26 September 1989, as I have said, the respondent filed an affidavit supplementing his answer. He claimed to be entitled to do this because of new matter appearing in the applicant's reply. He took the J opportunity to repeat that

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A investigation in America was necessary. He confirmed that the investigation was already in progress and that he possessed evidence, which, in his view, indicated that the vehicle was in fact stolen.

The substance of that evidence consisted of information obtained from an American investigator, one W E Rutledge, who has written a report and made a sworn statement, which he annexed to his affidavit together with B certain further information subsequently provided. In consequence of this information, said Aucamp, Rutledge suspected that the vehicle was stolen in 1976 and he also subscribed to that suspicion.

A further aspect of the matter addressed in the supplementary reply is the suggestion that the engine was converted by Big Bear Conversions. Sergeant Aucamp said he had previously been unaware of the identity of C Big Bear Conversions and that he wished to investigate this aspect of the matter.

At that stage he gave warning that his investigations were still in progress and would require a considerable period to complete.

It was at this juncture that Van der Walt J gave the order to which I have referred. In the course of argument before me there was some D dispute regarding the circumstances in which the order came to be made, and its exact purpose. Nonetheless, the only version which I have which explains the giving of the order is that of respondent's attorney, given both by way of affidavit and by way of a letter written by him at the time. I accept his explanation of the events and since I think they are important, I will deal with them in full.

In his affidavit Mr Y Govender, an attorney in the office of the State Attorney, says: E

'Die aanvullende beëdigde verklaring is by ooreenkoms tussen die partye deur die agbare Hof toegelaat en hierdie agbare Hof het beslis dat die aansoek uitgestel word vanweë die feit dat die ondersoek in die saak onvoltooid was en het verder beslis dat die partye die reg het om aanvullende beëdigde verklarings te liasseer voordat die saak weer ter rolle geplaas word.'

F In a letter written by Mr Govender to the applicant's attorneys on 17 October 1989 he amplifies as follows:

'Your counsel would have probably advised you that the reason for the matter being adjourned sine die was to afford my client sufficient time within which to complete his investigations, due regard being had to such time being reasonable. The investigating officer is presently G awaiting further information from the USA and I believe that vast distances have to be covered to trace the history of the vehicle. The crux of the matter is that the investigations are incomplete and we are not certain as to whether the investigations will be completed before 31 October 1989. Even if they are complete, my client will, depending on the nature of the information obtained, in all likelihood file...