Hurricharan v The Minister of Safety and Security
| Jurisdiction | South Africa |
| Judge | Dambuza J |
| Judgment Date | 10 June 2008 |
| Docket Number | 2075/07 |
| Court | South Eastern Cape Local Division |
| Hearing Date | 21 September 2008 |
| Citation | 2008 JDR 0787 (SE) |
Dambuza J:
On 20 September 2007 the applicants launched this application, on an urgent basis, seeking release of certain vehicles from police custody. On 21 September 2007 an order was granted for the release of the vehicles in question from police custody; the respondents having consented to such release. The terms of the order were:
That the respondents consent to the release of the vehicles identified in paragraph 23 of the founding affidavit pending the finalisation of this application;
That the applicants undertake to co-operate fully with the South African Police Service in respect of the investigation relating to the vehicles referred to above;
That the applicants undertake not to tamper with any evidence related to the investigation;
That the applicants undertake to preserve and keep vehicles referred to safe pending the finalisation of this application;
That the applicants record that all the vehicles referred to are fitted with Altech Netstar satellite tracking devices and undertake to maintain this service pending the finalisation of the application;
That the applicants undertake not to operate vehicles T27, T28 and T46 until such time as they have been roadworthied;
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That the respondents are to file answering affidavits, if any, by 1 October 2007 and the applicants are to file replying affidavits, if any, within the time period allowed by the rules;
That the matter is postponed to 1 November 2007 and the questions of urgency and costs are reserved.
The respondents brought an application to have certain portions of the applicants' replying affidavit struck out from the record.
The first applicant is the sole member of a close corporation known as Hurrichanan Cartage CC (the close corporation). The first, second and fourth applicants are brothers. The third applicant is their father. The fifth applicant is employed by the close corporation as a foreman. The sixth and seventh applicants are described in the founding affidavit as subcontractors to the close corporation at a site in the Coega Industrial Development Zone in Port Elizabeth.
In October 2006, the close corporation was awarded a tender by the Basil Read Newport Construction Joint Venture (the Joint Venture) for earthworks to be done within the Coega Industrial Zone. In terms of the tender, the close corporation was to supply to the Joint Venture tipper trucks with a capacity of 10m² for a period of 20 months. The number of the trucks supplied by the close corporation was initially eight. It
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increased over time and, by the time the cause of action in this matter arose, the close corporation had 24 trucks on site. It appears that when the close corporation was awarded the tender by the Joint Venture, it (the close corporation) entered into a subcontract with the applicants (who are owners of the vehicles in question), in terms of which the applicants provided their trucks to the close corporation presumably for performance in terms of the tender.
On 5 September 2007, members of the South African Police Services, led by the third respondent came to the site whereon the applicants' trucks were working and started examining the engine, chassis and kerb numbers as well as licence discs of the 24 trucks that were on site at the time. They then seized 18 of the trucks and instructed the drivers employed by the close corporation and/or the applicants to drive the trucks to the Uitenhage Police Pound. Two of the trucks had to be towed to the police pound.
The complaints by the police in respect of the trucks included unclear chassis numbers (or chassis numbers that appeared to have been tampered with or removed) on the drivers' cabin, licence disc numbers that did not correspond with the chassis numbers and absence of cabin tag numbers (and/or tag numbers that appeared to have been tampered with).
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Dambuza J
On 6 September 2007, the first and second applicants started discussions with the police, furnishing information and documents required by the police in an effort to have the vehicles released. The documents included registration documents of the impounded vehicles and loan or finance agreements from financial institutions in respect of some of the trucks. They explained the history of ownership of each of the vehicles as the police required. When the discussions failed to yield positive results for the applicants, they approached their attorneys with the intention of launching this application. By the time the application was launched six of the confiscated trucks had been released from police custody.
As I have stated on 21 September 2007, the order sought by the applicant was granted with the consent of the respondents. In the order of 21 September the applicants, undertook to co-operate with police investigations in respect of the trucks and to ensure that satellite tracking devices fitted in the vehicles remained active. The respondents, however, persist in their opposition to the application. They contend that the seizure and attachment of the vehicles was justified; it having resulted from complaints made to the police regarding the safety of the vehicles and discrepancies between the chassis numbers and licence discs on some of the vehicles. In this regard they rely mainly on Section 20 of the Criminal Procedure Act 51 of 1977 together with Section 68 (6) of the National Road Traffic Act 93 of 1996.
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Dambuza J
The respondents contend in limine, that the applicants have failed to show that the matter was urgent and plead moreover that the applicants failed to afford them 72 hours notice as required in terms of Section 35 of the General Law Amendment Act 62 of 1955. I first deal with the points in limine raised.
URGENCY:
It is trite that urgency in urgent applications, involves mainly the abridgment of times prescribed by the rules and the departure from the established filing and sitting times of the Court. Luna Meubel Vervaardigers (Edms) Bpk v Makin & Another (t/a Makin's Furniture Manufacturers) 1977 (4) SA 135 (W) at 136 H. It is also trite that urgency does not only relate to some threat to life and liberty; urgency of commercial interests may justify approaching the Court on an urgent basis no less than other interests. Twentieth Century Fox Film Corporation & Another v Anthony Black Films ( Pty) Ltd 1982 (3) SA 582 (W) AT 586 G; Bandle Investments (Pty) Ltd v Registrar of Deeds 2001 (2) SA 203 (SECLD). There are degrees of urgency. Consequently the Courts deal with the question of urgency according to the merits of each case. The degree of relaxation of the rules and of the ordinary practice of the Court depends on the degree of urgency of each matter. On the other hand where a matter lacks the requisite degree of urgency, the Court can, for
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that reason alone, strike the application from the roll.
Rule 6 (12) of the Rules of this Court provides that an applicant in an urgent application is obliged to explain clearly, in the founding affidavit, the circumstances which render the matter urgent and the reason why he or she claims that he or she cannot be afforded substantial relief in a hearing in due course. See also the Luna Meubel Vervaardigers case (supra) at 137 (F).
According to the Notice of Motion the application would be heard on 21 September 2007 at 09:30. The application was served at the offices of the legal department of the South African Police Services at Uitenhage on 20 September 2007 at 15H45 and on the State Attorney on the same day at 14H50 for the third respondent and 16H13 for the first respondent. The Notice of Motion directed the respondents to file their Notice to Oppose the application by the end of the business day on 20 September 2007 and to file their opposing affidavits on 28 September 2007.
It is apparent from the founding papers that the vehicles were seized whilst at work at the Coega site. The applicants explain in the founding papers, and it is not disputed, that the close corporation charged the Joint Venture on an hourly basis for trucks, and that in the preceding months the close corporation had earned an average income of R858 785.00 per
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month. The applicants' ownership of the trucks is also not in dispute. Although there is no evidence on how much the applicants charged the close corporation for the trucks, I am satisfied that they derived an income from providing the trucks to the close corporation. They explain that they continued to lose income whilst the trucks were in police custody. The applicants were therefore prejudiced as a result of the seizure of the trucks, for they would not be able to provide the trucks to the close corporation and would thus not be able to meet their obligations under the subcontract whilst the trucks were in police custody. Consequently, the applicants had the necessary locus standi to launch this application.
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