Hako v Minister of Safety and Security and Another

• Jurisdiction: South Africa
• Judge: Miller AJ
• Judgment Date: 30 June 1995
• Citation: 1996 (2) SA 891 (TkS)
• Hearing Date: 26 May 1995
• Counsel: S M Mbenengwe for the applicant. A Z Gaju for the respondents.
• Court: Transkei Supreme Court

Miller AJ:

This Court issued a rule nisi on 12 May 1995 in terms of which the respondents were called upon to show cause why:

(a)

the seizure and detention of a Volkswagen Microbus 2.5i motor vehicle C with registration letters and number XA 18108 should not be declared unlawful and set aside;

(b)

the respondents should not be ordered to release such vehicle or order that it be released to the applicant by whomever may be in possession thereof; and

(c)

the respondents should not pay the costs of the application. D

It is common cause that on 11 April 1995 the applicant was in possession of the vehicle referred to in the rule nisi and that at approximately midnight on that date, and at the applicant's residence in Umtata, members of the South African Police Service from East London, who were acting in the course and scope of their duty E with the respondents, seized the vehicle without a search warrant and removed it from the physical possession of the applicant. It is further common cause that shortly after the vehicle was taken from the applicant it was removed to East London, where it is still in the custody of the police.

What is not common cause is whether the applicant was in lawful possession of the F vehicle immediately prior to its seizure and whether the applicant consented to the seizure of the vehicle.

The applicant states that he purchased the vehicle during 1992 from one Xolly Mandela for the price of R75 000, which was paid by giving the said Xolly Mandela a Toyota Cressida worth R40 000 and R35 000 in cash. The vehicle was then registered in the applicant's name and it then had registration letters and G number XA 11386. During 1993 the vehicle was stolen from the applicant and was found some time later by the then Transkeian Police in Engcobo. Its engine and chassis numbers had been tampered with in that they were ground away. He says that he then produced documentation to the police which showed that he was the H owner of the vehicle and that, after the police checked the matter, they issued him with a temporary clearance certificate. Further investigations were conducted by the police and thereafter they issued him with new engine and chassis numbers. The applicant then re-registered the vehicle under the new registration number XA 18108. The applicant says that he has since then been using the vehicle and that the I vehicle was also used on a daily basis by his wife.

The applicant further states that at approximately midnight on 11 April 1995 members of the police force from East London came to his home and seized the vehicle. They told the applicant they were taking it to the Old Embassy premises in Umtata for rechecking. He says that he protested against this and that the vehicle J was taken by the police much

Miller AJ

A against his will. He said that the police threatened him and demanded the vehicle at gun point. He went to the Old Embassy premises the next day but was not attended to. He returned the following day and was informed that his vehicle had been taken by the police to East London. Lieutenant-Colonel Westraad, who B deposed to an affidavit on behalf of the respondents, denies that the applicant is the owner of the vehicle. He says that he has thoroughly investigated this matter, and that the vehicle was, during 1992, purportedly registered in the name of Solomzi Mandela of 1880 NU 6, Mdantsane, with registration letters and number GCJ 16974. He has established that such registration was fraudulent in that no such C registration number was ever issued by the authorities. He further states that investigations have shown that the said Solomzi Mandela never resided at 1880 NU 6, Mdantsane. He is of the view that the vehicle is a stolen vehicle and that the applicant made up a story about it being stolen from him as the applicant feared that the engine and chassis numbers would ultimately lead to his arrest. He states further D that the vehicle was, during 1993, cleared by the Transkei Police and new engine and chassis numbers issued because of the false theft report made by the applicant and because the Transkei Police did not have sophisticated equipment to establish whether the vehicle is a stolen vehicle. He says that now, through the use of E sophisticated...