Manina v Minister of Safety and Security

• Jurisdiction: South Africa
• Judge: Greenland AJ
• Judgment Date: 13 May 2008
• Docket Number: 202/2006
• Court: Transkei Division
• Hearing Date: 09 May 2008
• Citation: 2008 JDR 0555 (Tk)

Greenland AJ:

Nature of the proceedings

[1] This is an application, as made clear by Applicant's attorney at the hearing, in terms of the possessory remedy provided by the mandament van spolie. In simple terms a person in peaceful possession of property who is dispossessed is entitled to approach the courts for summary relief to have possession restored. That the remedy can be availed against the State and its servants is correct in terms of Donges No v Dadoo 1950 (2) SA 321 (A) at 332.

[2] Although there is a dispute on the papers as to the circumstances of dispossession Applicant's attorney has argued the matter on the basis of Respondents version and has requested adjudication accordingly. In terms thereof a motor vehicle in the possession of Applicant was seized at a check point set up by members of the South African Police service (SAPS) on 21 July 2004. The seizure occurred during an operation titled "Operation Hunt" aimed at recovering stolen vehicles and illegally possessed firearms. The check point was set up at Qumbu Taxi Rank in Qumbu Village.

2008 JDR 0555 p2

Greenland AJ

Authority for check point

[3] The check point was set up in terms of a written certificate of authority signed by Superintendent N. N. Siqhola the Station Commissioner in charge of Qumbu Police Station.

The certificate is headed "ROADBLOCK/CHECK POINTS" followed by the title – "AUTHORISATION IN TERMS OF SECTION 13(8) OF THE SOUTH AFRICAN POLICE SERVICE ACT, 1995 [ACT No. 68 of 1995]"

In terms thereof Detective Inspector Madyibi was given authority to set up a check point at "Qumbu Taxi Rank (Qumbu Village)" on "21/107/2004 during the time period from 9:00 to 14:00 and with the aim to check and recover stolen vehicles and illegal firearms."

Section 13(8) of THE SOUTH AFRICAN POLICE SERVICE ACT, 1995 [ACT No. 68 of 1995]" reads

(8) (a) The National or Provincial Commissioner may, where it is reasonable in the circumstances in order to exercise a power or perform a function referred to in section 215 of the Constitution, in writing authorise a member under his or her command, to set up a roadblock or roadblocks on any public road in a particular area or to set up a checkpoint or checkpoints at any public place in a particular area.

(b) The written authorisation referred to in paragraph (a) shall specify the date, approximate duration, place and object of the proposed action.

(c) …………………….

(d) …………………….

(e) …………………….

(f) …………………….

(g) Any member may, without warrant-

2008 JDR 0555 p3

Greenland AJ

(i) in the event of a roadblock, or checkpoint that is set up in accordance with paragraph (c), search any person or vehicle stopped at such roadblock or checkpoint and any receptacle or object of whatever nature in the possession of such person or in, on or attached to such vehicle and seize any article referred to in section 20 of the Criminal Procedure Act, 1977, found by him or her in the possession of such person or in, on or attached to such receptacle or vehicle: Provided that a member executing a search under this subparagraph shall, upon demand of any person whose rights are or have been affected by the search or seizure, exhibit to him or her a copy of the written authorisation by the Commissioner concerned; and

(ii) in the event of a roadblock that is set up in accordance with paragraph (d), search any person or vehicle stopped at such roadblock and any receptacle or object of whatever nature in, on or attached to such vehicle and seize any article referred to in section 20 of the Criminal Procedure Act, 1977, found by him or her in, on or attached to such receptacle or vehicle: Provided that a member executing a search under this subparagraph shall, upon demand of any person whose rights are or have been affected by the search or seizure, inform him or her of the reasons for the setting up of the roadblock.

(h) ……………………….

Attack on the Certificate as a jurisdictional factor

[4] Time was spent on what may be regarded as an attack on the validity of the certificate on what may be classified as technical grounds. Though technical the issues are of fundamental importance on account of the need to approach the issue restrictively as per par [5] c) below.

a) It was submitted more in hope than in faith that Superintendent N. N. Siqhola was not possessed of the requisite authority to issue the certificate. This point was put to bed by examination of the terms of a document included in the papers (NNS1) which in form and substance constitutes an express delegation of authority by the National Commissioner, Mr George Fivas, of SAPS to "every Provincial Commissioner …. Superintendent … and Station Commissioner" of "all the powers vested in" him as specified in a schedule attached. The schedule specifically includes, in terms of section 13(8)(a) of the SAPS Act, 'the power to authorise a member to set up a road block … or check point … in as (sic) specified area."

2008 JDR 0555 p4

Greenland AJ

The point is without substance as clearly the Station Commisssioner was fully empowered in terms of express delegated authority and the strictures encompassed in the maxim delegans delegare non potest need not detain.

b) It was similarly submitted that the terms of the certificate were too wide in that its specifies "Qumbu Taxi Rank (Qumbu Village)" as the place for the check point to be set up and as there are many taxi ranks in Qumbu the certificate stands to be struck down for vagueness.

The point is unsupposed in the papers. The evidence of D/1 Madyibi is that-

"That operation was conducted in a specified area, namely; Qumbu Taxi Rank at Qumbu Village…"

The only evidence before this Court is consistent with an identifiable and set location. This court has no information in terms of which it is able to conclude that there are many taxi ranks in Qumbu Village. It is not a matter on which a court can take judicial notice. What is relevant is that the certificate has specificity as regards the area and place where the check point was to be conducted.

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