Magobodi v Minister of Safety and Security and Another

• Jurisdiction: South Africa
• Judge: Miller J
• Judgment Date: 30 April 2008
• Citation: 2009 (1) SACR 355 (Tk)
• Docket Number: 1642/07
• Hearing Date: 27 March 2008
• Counsel: SM Mbenenge SC (with AM da Silva) for the applicant. GH Bloem (with L Meintjies-Van der Walt) for the respondents.
• Court: Transkei High Court

Miller J:

[1] The applicant seeks an order declaring the seizure of a Ford Courier motor vehicle with registration letters and number DHC002EC (the vehicle) by members of the South African Police Service (SAPS) to be G unlawful, and certain other consequential relief.

[2] The applicant avers that he purchased the vehicle during August 2007 and was in peaceful and undisturbed possession of it at the time of its seizure on 14 November 2007. The vehicle had not yet been registered into his name at the time of its seizure. H

[3] There is a dispute of fact concerning the events which took place on 14 November 2007.

[4] The applicant's version is that on that date the vehicle was being driven by his cousin, Xolisa Mswelanto, on the main road in Qumbu. He I was approached from behind by a police car which flashed lights at him and indications were made to him to stop. He did so and two police officers, one of whom was Inspector Matwa, approached him. She introduced herself to him and advised him that she had received information that the vehicle was a stolen vehicle. Mr Mswelanto disputed this and advised her that the vehicle belonged to the applicant, J

Miller J

A and requested them to phone the applicant. This request was refused and a demand was made that he hand over the keys of the vehicle to them. He refused and demanded to see a search warrant or a warrant authorising them to seize the vehicle. Inspector Matwa became aggressive and informed him that she would arrest him for possession of a B stolen vehicle and defeating the ends of justice if he continued arguing with her. He then, out of fear of being arrested, handed the keys to her and they then drove the vehicle to the Qumbu police station.

[5] The version of the respondents, given by Inspector Matwa, is that the police were at the time carrying out Operation Buya, the purpose of C which was to recover stolen motor vehicles in the area of Mthatha, Qumbu and Tsolo. She, together with Inspector Msizi, was carrying out routine duties in Qumbu. They, with the consent of the driver, inspected a vehicle which was parked in a parking bay in Church Street. There was nothing untoward about the vehicle and they then proceeded to the vehicle which was parked in the next parking bay, the person sitting in D the driver's seat identifying himself as Xolisa Mswelanto. She asked him for permission to inspect the engine of the vehicle and he granted such permission. Mr Mswelanto opened the bonnet of the vehicle for them and she noticed that the engine and chassis numbers had been tampered with, and she formulated a reasonable belief that the vehicle was a stolen E vehicle, and, she says, she realised that the vehicle could provide reasonable evidence of the commission of the crime of theft. She then asked Mr Mswelanto to follow them to the police station and he obliged.

[6] These versions are far apart and cannot be resolved on the papers. I, however, am of...