Hako v Minister of Safety and Security and Another

• Jurisdiction: South Africa
• Citation: 1996 (2) SA 891 (TkS)

Hako v Minister of Safety and Security and Another
1996 (2) SA 891 (TkS)

1996 (2) SA p891

Citation	1996 (2) SA 891 (TkS)
Court	Transkei Supreme Court
Judge	Miller AJ
Heard	May 26, 1995
Judgment	June 30, 1995
Counsel	S M Mbenengwe for the applicant.; A Z Gaju for the respondents.

Flynote : Sleutelwoorde H

I Court — Jurisdiction — Of Transkei Supreme Court — Application for order directing release of motor vehicle unlawfully seized by police — Vehicle later removed out of jurisdiction of Court — Effect of s 1 of State Liability Act 20 of 1957 being to substitute State for resident subject and, as far as State concerned, J to eliminate

1996 (2) SA p892

A residence as element of jurisdiction — Accordingly, and having regard to s 241(1B) of Constitution of the Republic of South Africa Act 200 of 1993, any Division of Supreme Court able to entertain proceedings against Government if wrong committed within Court's area of jurisdiction — Court accordingly having jurisdiction to adjudicate application. B

Ownership — Movable property — Seizure of by police — Application for order directing release of motor vehicle unlawfully seized by police — Police intending to institute criminal proceedings against applicant — Court ordering State to release vehicle to applicant but interdicting applicant from disposing of or C altering vehicle pending institution of criminal proceedings against him within one month.

Headnote : Kopnota

The applicant applied in the Transkei Supreme Court for a rule nisi calling upon the respondents to show cause why an order should not be granted declaring the seizure D and detention by the police of his motor vehicle to be unlawful and for the setting aside thereof and why the respondents should not be ordered to release the vehicle to the applicant. It appeared that the police, in the course and scope of their employment with the respondents, had without a warrant seized the vehicle at the applicant's residence in Umtata on 11 April 1995 and removed it from the applicant's physical possession. The vehicle was shortly thereafter removed to East London, outside the area of jurisdiction of the Court. The rule nisi was granted. On the return day the respondents took the point in limine that the Court did not have E jurisdiction to adjudicate the matter as the vehicle was outside the area of jurisdiction of the Court.

Held, that the effect of the provisions of s 1 of the State Liability Act 20 of 1957 was to substitute the State for the resident subject and, so far as the State was concerned, to eliminate residence as an element of jurisdiction: accordingly, any Division of the Supreme Court and, if regard was had to s 241(1B) of the F Constitution of the Republic of South Africa Act 200 of 1993, the Transkei Supreme Court, was able to entertain proceedings against the Government if the wrong was committed within its area of jurisdiction. (At 895D-E, read with 895B.)

Held, further, that, because the seizure of the vehicle had occurred within the rechtskring of the Transkei Supreme Court and because the police who had seized the vehicle were acting in the scope and authority of employees of the respondents G and because of the provisions of s 1 of Act 20 of 1957, the Transkei Supreme Court did have jurisdiction to adjudicate the application in respect of the relief claimed. (At 895G/H-H/I.)

Held, further, on the facts, that the seizure of the vehicle had been unlawful: as the police intended to institute criminal proceedings against the applicant when their investigations had been completed, the rule nisi should be confirmed, but the applicant should be interdicted from disposing of the vehicle or in any way altering H it pending the institution of criminal proceedings against him within one month. (At 897C, F and G and 897G/H.)

Cases Considered

Annotations

Reported cases

The following decided cases were cited in the judgment of the Court:

Ewing McDonald & Co Ltd v M & M Products Co 1991 (1) SA 252 (A)

Makoti v Brodie and Others 1988 (2) SA 569 (B)

Nahrungsmittel GmbH v Otto 1993 (1) SA 639 (A)

South Atlantic Islands Development Corporation Ltd v Buchan 1971 (1) SA 234 (C) I

Veneta Mineraria Spa v Carolina Collieries (Pty) Ltd (in Liquidation) 1987 (4) SA 883 (A)

Statutes Considered

Statutes

The following statutes were considered by the Court:

The Constitution of the Republic of South Africa Act 200 of 1993, s 241(1B): see Juta's Statutes of South Africa 1995 vol 5 at 1 - 257

The State Liability Act 20 of 1957, s 1: see Juta's Statutes of South Africa 1995 J vol 5 at 1 - 157.

1996 (2) SA p893

Case Information

A Return day of a rule nisi. The facts appear from the reasons for judgment.

S M Mbenengwe for the applicant.

A Z Gaju for the respondents.

Cur adv vult.

Postea (June 30). B

Judgment

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...