Heavy Transport and Plant Hire (Pty) Ltd and Others v Minister of Transport Affairs and Others; South North Haulage (Pty) Ltd and Another v South African Transport Services

• Jurisdiction: South Africa
• Judge: Nestadt J
• Judgment Date: 21 January 1985
• Court: Witwatersrand Local Division

Nestadt J:

There are two applications before me. They are D substantially similar, not only as to their facts, but also in relation to the issues they raise and the relief claimed. Both were launched at about the same time as a matter of urgency. For these reasons they were argued as one.

In simplified form they disclosed the following. Applicants carry on business as road transportation contractors. On 9 E January 1985 certain of their vehicles, consisting in each case of a mechanical horse and trailer, whilst conveying consignments of goods, were stopped at a road block manned by members of the South African Railway Police near Villiers in the Orange Free State. The drivers were arrested on charges of unauthorised transportation in contravention of s 31 (1) of the F Road Transportation Act 74 of 1977. At the same time the vehicles with their loads were seized. The drivers, after appearing in the local magistrate's court and having their cases postponed to 18 January 1985, were required to drive their respective vehicles to Kazerne, Johannesburg, which is a depot of the South African Transport Services, the third G respondent in application 575 and the sole respondent in application 579. They have remained there since, in the possession of the Railway Police, save that in the former case, applicants have, in terms of an interim order granted on 11 January 1985 by GOLDSTONE J, removed their vehicles pendente lite to their premises.

Applicants, alleging that the attachment of their vehicles was H unlawful, are seeking orders for their immediate return. Respondents' opposition thereto is based on the contention that its employees were entitled to take possession of and retain the vehicles with a view to obtaining an order for their forfeiture in the pending criminal trials (though it is also alleged that the vehicles were required for evidential purposes).

I Act 74 of 1977 itself provides for forfeiture. In terms of s 36 (1) the court convicting any person of an offence involving inter alia the undertaking of unauthorised road transportation, may, and shall on a third and each subsequent conviction of such an offence, declare the motor vehicle used in such transportation and any goods conveyed thereon without J authority, to be forfeited to the State. There is also, of course, s 35 (1) of the Criminal Procedure Act 51 of 1977, in terms

Nestadt J

whereof a court which convicts an accused of any offence may A declare any article by means whereof the offence in question was committed, and which was seized under the provisions of the Act, forfeited to the State. Earlier in s 19 it is stated that the provisions of the chapter in which s 35 falls is not to derogate from any power conferred by any other law to seize and B declare forfeited.

Each Act contains, up to a point, its own provisions to facilitate the attachment of what will be sought to be forfeited and the procedure to be followed thereafter. Section 30 (1) of the former empowers the Minister of Transport Affairs to make regulations inter alia :

"(k)

Prescribing the powers and duties of authorised officers, including the manner in which and the C conditions upon which motor vehicles that are locked or sealed may be forced open by authorised officers in order to inspect the load;

(l)

empowering any inspector or any member of the South African Police to seize any motor vehicle suspected on reasonable grounds to have been used in unauthorised road transportation and any goods upon such motor vehicle and providing for the manner in which a motor vehicle and goods so seized shall be dealt with pending the disposal of D criminal proceedings in respect of such unauthorised road transportation."

"Authorised officer" is defined in s 1 to mean inter alia an inspector, any member of the South African Police or any member of the South African Railways Police Force in respect of any place, whether within or beyond the limits of the railways as defined in s 1 of the South African Transport Services Act 65 of 1981.

The regulation in question is reg 26, published in Government Notice R2 653 of 30 December 1977. The following subsections thereof are in point:

"(2)

Apart from the duties and powers referred to in the Act and elsewhere in these regulations, an authorised F officer may in relation to road transportation:

(a)

direct a motor vehicle to stop and examine goods conveyed thereon to establish whether such vehicle was being used for road transport...

(k)

require that the driver or other person in charge of a motor vehicle whose load is so sealed and/or locked as not to permit a ready examination, forthwith open the G seal and/or lock or device with which such load is locked to permit such load being examined and, if the driver or other person in charge of such vehicle fails or refuses to comply with such requirement, he may forcibly break the seal and/or lock or device with which such load is sealed or locked so that he may be able to examine such load.

(3)

Apart from the duties and powers specified in the Act and H elsewhere in these regulations, an inspector and any member of the South African Police may impound any motor vehicle reasonably suspected of having been used in connection with the conduct of unauthorised road transportation, as well as the goods conveyed on such vehicle.

(4)

Upon the impoundment of any motor vehicle or goods in terms of subreg (3), the person who made such impoundment shall forthwith cause such vehicle or goods to be taken to a I police station, whereupon the matter shall be dealt with in accordance with the provisions of the Criminal Procedure Act 51 of 1977."

Section 33 of this Act is the relevant provision. Before quoting it, however, it will be convenient to first briefly refer to certain earlier sections thereof, which bear on seizure. They are the following:

"20.

The State may, in accordance with the provisions of this chapter, seize anything (in this chapter referred J to as an article):

Nestadt J

(a)

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.

23.

On the arrest of any person, the person making the arrest may:

(a)

if he is a peace officer, search the person arrested and seize any article referred to in s 20 which is B found in the possession of or in the custody or under the control of the person arrested, and where such peace officer is not a police official, he shall forthwith deliver any such article to a police official.

30.

A police official who seizes any article referred to in s 20 or to whom any such article is under the provisions of this chapter delivered:

(c)

shall, if the article is not disposed of or delivered under the provisions of para (a) or (b), give it a C distinctive identification mark and retain it...