Hume v Directorate for Priority Crime Investigation and Another

• Jurisdiction: South Africa
• Citation: 2022 (1) SACR 518 (GP)

Hume v Directorate for Priority Crime Investigation and Another
2022 (1) SACR 518 (GP)

2022 (1) SACR p518

Citation	2022 (1) SACR 518 (GP)
Case No	33593/20
Court	Gauteng Division, Pretoria
Judge	Hassim AJ
Heard	January 28, 2022
Judgment	January 28, 2022
Counsel	DJ Joubert SC for the applicant.; EC Labuschagne SC (with V Mabuza) for the respondents.

Flynote : Sleutelwoorde

Search and seizure — Seizure by police in terms of s 20 of Criminal Procedure Act 51 of 1977 — Application for return of goods seized — Rhinoceros horns, belonging to applicant, seized whilst being transported by two persons convicted of unlawful possession and transportation of seized horns — Court not making order for return of goods — Discretion to hear matter — Court obliged to consider application for return and not compel applicant to pursue matter before court which convicted accused.

Search and seizure — Seizure by police in terms of s 20 of Criminal Procedure Act 51 of 1977 — Application for return of goods seized — Rhinoceros horns, belonging to applicant, seized whilst being transported by two persons convicted of unlawful possession and transportation of said horns — Court not making order for return of goods — Right to possession of items — Once criminal proceedings concluded, state's right to possess seized horns not necessarily terminating — Such depending on circumstances and provision in Act which provided for return of seized goods.

Search and seizure — Seizure by police in terms of s 20 of Criminal Procedure Act 51 of 1977 — Application for return of goods seized — Rhinoceros horns, belonging to applicant, seized whilst being transported by two persons convicted of unlawful possession and transportation of horns — Seized goods not transferred by police to court for purposes of trial — Section 33 of Act not implying that seized articles had to be physically present at court — Reference in s 34 to s 33 merely aimed at identifying seized article in respect of which judicial officer had to make order.

Headnote : Kopnota

The applicant applied for the return of 181 rhinoceros horns. He claimed that he lawfully possessed the horns and had intended to sell them to a purchaser whom he had never met. To this end he allowed two individuals to transport the horns without a permit from a safe third-party vault. The accused were sent by the purchaser to collect the horns from the vault in Gauteng and to take them to a place in North West Province.

The second respondent, the investigating officer attached to the first respondent, had been investigating the illegal exportation of rhino horns and the applicant's involvement in that business. He had investigated the transaction between the purchaser and the applicant, and stated that the purchaser had no intention of buying the horns or receiving them into his possession; he and others had agreed to permit applications being submitted in their names in exchange for money. The applicant claimed to have no knowledge of these facts.

The accused were subsequently charged with the unlawful possession and transportation of the horns in contravention of s 57(1) of the National Environmental Management: Biodiversity Act 10 of 2004. They entered into a plea-and-sentence agreement in terms of s 105A of the Criminal

2022 (1) SACR p519

Procedure Act 51 of 1977 (the CPA), but at the conclusion of the proceedings, the magistrate presiding failed to make an order as to the return of the horns that had been seized under s 20 of the CPA.

The court remarked that the applicant's version of events was most bizarre. It was astounding that a self-professed businessman would voluntarily release valuable assets from his control and custody and entrust them to a potential buyer he had never personally met for inspection, in the hope that the potential buyer became a buyer of the horns at a reasonable price to be agreed. It defied logic why the potential buyer could not inspect the horns at the vault. It was also implausible that any person would release, not a few, but all the horns, each valued at approximately R60 000, making a total value of approximately R10 million, without any assurance that the buyer intended buying one, let alone 181. (See [24.)

The respondents contended that the court had a discretion whether to hear the matter or order the applicant to pursue the statutory remedy in the criminal court in terms of s 34(3) of the CPA.

Held, that, while the court before which the criminal proceedings were concluded was in a better position to interrogate whether the seized goods should be returned, the present court could not agree that a court had a discretion to refuse to decide an application properly before it and demand that a litigant pursue his claim in another court. (See [26].)

Held, further, that the result of the coexistence of a statutory remedy and a common-law remedy in the present case was that, in terms of the common-law remedy, the goods seized under s 20 had to be returned to the owner. However, in the same circumstances, a statute not only withheld from the owner the right to possess property owned, but deprived him of ownership. In view of the conclusion to which the court came, it was not necessary to consider the aspect further. (See [33].)

Held, further, that the applicant's argument, that once the criminal proceedings were concluded, the state's right to possess the seized goods ceased, was attractive, but the answer was not that simple. An examination and analysis of the provisions of the CPA showed that this depended on the circumstances and the provision in that Act which provided for the return of the seized goods. (See [37].)

Held, further, in respect of the applicant's argument that s 34(1) of the CPA, by virtue of its reference to 'any article referred to in section 33', would not apply if the seized article was not transferred by the police to court for the purposes of trial, that the provision did not apply only in instances where the seized article had been transferred to the clerk of the court in terms of s 33. Section 33 did not mean that the seized article had to be physically present inside the court. The delivery to the clerk of the court was an obligation imposed on a police official to release the seized article into the custody of the clerk of the court to ensure that it was safeguarded. The reference in s 34 was aimed at identifying the seized article in respect of which the judicial officer had to make the order contemplated in s 34(1). (See [51] – [52].)

Held, furthermore, that the legislature could never have intended that seized articles had to be transferred to court, even though an agreement in terms of s 105A had been entered into. Nor could the legislature have intended that in such cases the provisions of s 34 would not apply. If this had been its intention, it would have been expressly provided. Consequently, until the criminal court made an order for the release of the 181 horns, the respondents were not only entitled, but were obliged, to retain the horns. (See [55] and [57].)

2022 (1) SACR p520

Cases cited

Agri Wire (Pty) Ltd and Another v Commissioner, Competition Commission, and Others2013 (5) SA 484 (SCA) ([2012] 4 All SA 365; [2012] ZASCA 134): referred to

Chetty v Naidoo1974 (3) SA 13 (A): applied

Choonara v Minister of Law and Order1992 (1) SACR 239 (W): dictum at 246f – g compared

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 Services1985 (2) SA 597 (W): dictum at 604I – 605A applied

Minister van Wet en Orde en 'n Ander v Datnis Motors (Midlands) (Edms) Bpk1989 (1) SA 926 (A): dictum at 935B compared

Mkhuba v Minister of Police and Another2014 (2) SACR 205 (ECM): distinguished

Mokoena v Minister of Law and Order1991 (3) SA 187 (T): referred to

National Director of Public Prosecutions v Five Star Import & Export (Pty) Ltd2018 (2) SACR 513 (WCC): dictum in para [44] compared

Ndabeni v Minister of Law and Order and Another1984 (3) SA 500 (D): referred to

Ntoyakhe v Minister of Safety and Security and Others1999 (2) SACR 349 (E): dictum at 355h – i compared

S v Campbell en 'n Ander 1985 (2) SA 612 (SWA) ([1985] 4 All SA 1): referred to

S v Marais1982 (3) SA 988 (A): referred to

S v Ramos2005 (2) SACR 459 (C): referred to

S v Smith and Others1984 (1) SA 583 (A): dictum at 598 compared

Van der Merwe and Another v Taylor No and Others2008 (1) SA 1 (CC) (2007 (11) BCLR 1167; [2007] ZACC 16): dictum at 36 applied.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, ss 20, 33, 34, 34(1), 34(3) and 105A: see Juta's Statutes of South Africa 2020/21 vol 1 at 2-277, 2-279 – 2-280 and 2-305 – 2-306

The National Environmental Management: Biodiversity Act 10 of 2004, s 57(1): see Juta's Statutes of South Africa 2020/21 vol 6 at 3-111 – 3-112.

Case Information

DJ Joubert SC for the applicant.

EC Labuschagne SC (with V Mabuza) for the respondents.

An application for the return of rhinoceros horns after the conclusion of a criminal case in which the court failed to make an order in respect of the seized items.

Order

The application is dismissed with costs, including the costs of two counsel, one of whom is a senior counsel.

Judgment

Hassim AJ:

Introduction

[1] The applicant institutes a rei vindicatio for the return of 181 rhinoceros horns (the 181 horns, or the horns), valued at approximately R10 million. The 181 horns were seized by the respondents on 13 April

2022 (1) SACR p521

Hassim AJ

2019 in terms of s 20 of the Criminal Procedure Act 51 of 1977 (the CPA) from two individuals, Petrus Stephanus Steyn (Steyn) and Clive John Mevam Melville (the accused). The 181 horns had been transported without a permit. The accused were charged with the unlawful...