Dyani v Minister of Safety & Security and Others

• Jurisdiction: South Africa
• Judge: Jafta J
• Judgment Date: 22 February 2001
• Citation: 2001 (1) SACR 634 (Tk)
• Hearing Date: 15 February 2001
• Counsel: H M Lusu for the applicant. P H S Zilwa for the respondents.
• Court: Transkei Division

Jafta J:

[1] This is an application for an order declaring the seizure of a white Toyota Venture motor vehicle with the registration letters and number BVV839EC by the third respondent to be unlawful I and directing that the respondents return the said vehicle to applicant. The applicant describes himself as the owner of the vehicle in question, having purchased it from one Zenzile Mbambonduna. On 28 January 2000 the applicant had the vehicle parked at Main Street, Engcobo when the police (including third respondent) arrived and demanded to search and J

Jafta J

inspect the vehicle because they suspected it to have been stolen. Having inspected it, the police informed the A applicant that they were seizing the vehicle and directed that the vehicle be taken to the police station at Engcobo. Upon arrival at the police station the applicant was informed that the police were arresting him and after obtaining his personal particulars they warned him to appear in the magistrate's court on the following day. B

[2] The respondents oppose the application. However, it is common cause between the parties that when the vehicle was seized the police were not in possession of any warrant authorising the search and seizure. Nonetheless, the respondents contend that the search and seizure were conducted in terms of the provisions of ss 20 and 22 of C the Criminal Procedure Act 51 of 1977 and therefore justified and lawful. They contend further that by virtue of the provisions of s 125(5)(b) of the Road Traffic Act 29 of 1989 it is incompetent for this Court to direct that the vehicle be returned to the applicant as his possession thereof would constitute an offence. D

[3] Section 20 of the Criminal Procedure Act authorises the police to seize any article 'concerned in or believed to be concerned in or is on reasonable grounds believed to be concerned in the commission or suspected commission of an offence', if such article is required for the purposes of evidence in a criminal trial. This section, however, E merely describes the nature of the article to be seized without setting out the manner of conducting the search and seizure of such article. The procedure to be followed in conducting a search and seizure is laid down in ss 21 and 22 of the same Act. Section 21 regulates seizures done pursuant to a search warrant whereas s 22 govern seizures done without a warrant. The provisions of the said section reads as follows: F

'A police official may without a search warrant search any person or container or premises for the purposes of seizing any article referred to in s 20 -

(a)

if the person concerned consents to the search for and the seizure of the article in question, or if the person who may G consent to the search of the container or premises consents to such search and the seizure of the article in question; or

(b)

if he on reasonable grounds believes -

(i)

that a search warrant will be issued to him under para (a) of s 21(1) if he applies for such warrant; and

(ii)

that the delay in obtaining such warrant would defeat the object of the search.' H

[4] Section 22 has been the subject of interpretation by our courts in numerous decisions and for the purposes of this judgment it suffices to only mention that it authorises a search and seizure without a warrant in one of the two instances namely, if the person possessing the article to be seized consents thereto or if the policeman reasonably believes that were he to apply for a warrant he I would be issued with one but the delay in doing so would defeat the object of the search in, for example, that the article might disappear whilst an application for a warrant is made.

[5] In casu, the respondents aver that the seizure of the vehicle in question was effected after the application had consented thereto. However, the application denies that this was the case and alleges that he J

Jafta J

never consented to the search and seizure of his vehicle. There appears to be a dispute of fact on whether there was A consent or not. In dealing with this point Mr Lusu, for the applicant argued that there was no real dispute of fact warranting the referral of the matter for the hearing of oral evidence. He submitted that the contents of paras 65.2 and 65.3 of the answering affidavit clearly show that there could never have been consent given by the B applicant. Relying on the decision in Soffiantini v Mould 1956 (4) SA 150 (E), Mr Lusu submitted that a robust approach must be adopted to the said dispute in order to avoid motion proceedings being rendered worthless by respondents raising imaginary disputes of fact. He urged the Court not to hesitate in deciding issues on affidavits only because it would be difficult to do so because its reluctance might delay or even defeat justice. C

[6] The robust and common-sense approach referred to in Soffiantini is applicable to cases where a bald denial is raised against detailed allegations. If, for example, the applicant set out in great detail allegations giving rise to the cause of action and the respondent in his answer thereto contents himself with a bare D denial of such allegations without setting out clearly his defence, the court may in the circumstances be justified in concluding that no genuine dispute has been shown to exist. Generally speaking, parties to motion proceedings should not be permitted to defeat the speedy resolution of disputes, which is the primary object of applications, by simply denying the allegations made by their opponents. This is indeed E a salutary principle as referral of the matter for the hearing of oral evidence under those circumstances would constitute nothing else but a sheer waste of time and money. The purpose of oral evidence is to put the court in a better position to resolve real disputes of fact. F

[7] However, the robust approach is not a suitable solution to applications wherein the eventual finding of the Court hinges upon where the probabilities lie. For obvious reasons the Court is not placed in a position where it can assess the credibility of the deponents and its evaluation of the evidence put before it is limited to the averments made in affidavits which were also not tested by cross-examination. Thus the advantages enjoyed by the trial court are G not available to the motion court. The risk of an incorrect factual finding looms large where such findings are based only on the consideration of probabilities.

[8] In the present application the respondents did not merely deny the allegations that the seizure was unlawful but they also set out facts which, if...