Maqhunyana v Minister of Safety and Security and Others

• Jurisdiction: South Africa

Maqhunyana v Minister of Safety and Security and Others
2012 (1) SACR 630 (ECM)

2012 (1) SACR p630

Citation	2012 (1) SACR 630 (ECM)
Case No	2265/2009
Court	Eastern Cape High Court, Mthatha
Judge	Dukada AJ
Heard	August 26, 2011
Judgment	January 27, 2011
Counsel	M Notyesi (attorney) for the applicant.; FS Gagela for the respondents.

Flynote : Sleutelwoorde

Police — Duties and powers of — Roadblocks — Setting up of in terms of s 13(8) of South African Police Service Act 68 of 1995 — Certificate in terms of s 13(8)(a) authorising setting-up of roadblock — Words 'where it is reasonable in the circumstances' in s 13(8)(a) referring to circumstances or C situations at place where roadblock to be set up in order to avoid danger to motorists and police officials — Reasonable to set up roadblock to perform function referred to in s 215 of Constitution, 1996.

Police — Duties and powers of — Roadblocks — Setting up of in terms of s 13(8) of South African Police Service Act 68 of 1995 — Certificate in terms of D s 13(8)(a) authorising setting-up of roadblock — Validity of — Allegation that no jurisdictional facts present relevant to issuing of certificate — Facts upon which such allegation based to be disclosed — Failure to do so fatal to application for order declaring certificate invalid.

Headnote : Kopnota

E The phrase 'where it is reasonable in the circumstances' in s 13(8)(a) of the South African Police Service Act 68 of 1995 refers to circumstances or situations existing on the ground or spot where the roadblock is to be conducted. One thinks of circumstances or situations where the roadblock is to be conducted, for instance, where the spot is on a blind curve of a road which is such that to conduct a roadblock there would be potentially a F source of danger, not only to the motorists, but also to the police officials conducting the roadblock. In such circumstances, it cannot be said that it is reasonable to authorise a roadblock. Section 13(8)(a) prescribes that it be reasonable in the circumstances, in order to exercise a power or perform a function referred to in s 205 of the Constitution, viz: (a) the prevention of crime; (b) the investigation of any offence or alleged offence; (c) the maintenance of law and order; or (d) the preservation of the internal G security of the Republic. (Paragraph [17] at 636c–h.)

Where it is alleged that there were no jurisdictional facts relevant to the issuing of the certificate in terms of s 13(8)(a) authorising the setting-up of a roadblock, facts should be disclosed on which the conclusion, that there were no such jurisdictional facts, is based. A failure to disclose such facts is fatal to an application for an order declaring that the certificate authorising H the setting up of a roadblock was invalidly issued. (Paragraph [18] at 636h–637b.)

Cases cited

Cheadle, Thompson & Haysom and Others v Minister of Law and Order and Others 1986 (2) SA 279 (W): dictum at 282E – F applied I

De Wet and Others v Willers, NO and Another 1953 (4) SA 124 (T): applied

Jaga v Dönges, NO and Another; Bhana v Dönges, NO and Another 1950 (4) SA 653 (A): dictum at 662G applied

Matatiele Municipality and Others v President of the RSA and Others 2006 (5) SA 47 (CC) (2006 (5) BCLR 622): considered J

2012 (1) SACR p631

Minister of Finance and Others v Ramos 1998 (4) SA 1096 (C): dictum at A 1101E – H applied

Minister of Justice and Constitutional Development v Moleko [2008] 3 All SA 47 (SCA): considered

Minister of Justice & Others v Desai, NO 1948 (3) SA 395 (A): dictum at 403 applied

Mostert NO v Old Mutual Life Assurance Co (SA) Ltd 2001 (4) SA 159 (SCA) ([2001] 4 All SA 250): B dictum at 177I/J – 178A applied

National Director of Public Prosecutions v RO Cook Properties (Pty) Ltd; National Director of Public Prosecutions v 37 Gillespie Street Durban (Pty) Ltd and Another; National Director of Public Prosecutions v Seevnarayan 2004 (2) SACR 208 (SCA) (2004 (8) BCLR 844; [2004] 2 All SA 491): dictum at 227c – d (SACR) applied C

Powell NO and Others v Van der Merwe NO and Others 2005 (1) SACR 317 (SCA) (2005 (5) SA 62; 2005 (7) BCLR 675; [2005] 1 All SA 149): dictum in para [59] applied

Rudolph and Another v Commissioner for Inland Revenue and Others 1997 (4) SA 391 (SCA): dictum at 395D – E applied

Sithonga v Minister of Safety and Security and Others 2008 (1) SACR 376 (Tk): D dictum in para [23] approved and applied

Syfrets Participation Bond Managers Ltd v Commissioner, South African Revenue Service 2001 (2) SA 359 (SCA): dictum at 365C – D applied.

Mazantsana v Minister of Safety and Security and Others (EC HC, M case No 765/2002): applied. E

Legislation cited

Statutes

The Constitution of the Republic of South Africa, 1996, s 205: see Juta's Statutes of South Africa 2010/11 vol 5 at 1-57

The South African Police Service Act 68 of 1995, s 13(8)(a): see Juta's Statutes of South Africa 2010/11 vol 1 at 3-401. F

Case Information

Application for an order declaring the seizure and detention of the applicant's motor vehicle unlawful, and ancillary relief. The facts appear from the reasons for judgment.

M Notyesi (attorney) for the applicant. G

FS Gagela for the respondents.

Cur adv vult.

Postea (January 27). H

Judgment

Dukada AJ:

Introduction

[1] The applicant launched this application against the first, second and third respondents, in which he sought the following relief: I

[1.1]

That the search, seizure and continued detention of the applicant's motor vehicle, to wit, a Toyota Hilux with registration letters and numbers CST 905 EC, be declared unlawful.

[1.2]

That the respondents be directed to release forthwith the motor vehicle to the applicant.

2012 (1) SACR p632

Dukada AJ

[1.3]

A That the respondents be interdicted and restrained from further unlawfully interfering with the applicant's possession of the motor vehicle.

[2] The first, second and third respondents opposed the application and B delivered answering affidavits to which the applicant replied.

[3] Applicant then launched an interlocutory application applying for the joinder of the fourth respondent and also for the amendment of his notice of motion to include a prayer for the following order:

'(a)

That the certificate issued by the fourth respondent attached to the respondent's answering affidavit being annexure VN1 be declared C invalid and of no force and effect and be set aside as a nullity.'

[4] On 27 May 2010 an order was granted ordering that fourth respondent be joined as such, and also granting the applicant leave to amend his notice of motion by including the prayer for the order D mentioned in para [3] above.

[5] The applicant's notice of motion was accordingly amended and the notice of motion, answering affidavits, replying affidavit and court orders were duly served upon fourth respondent.

[6] The fourth respondent thereafter delivered his answering affidavit to E which the applicant responded by delivering a replying affidavit.

The facts of the case

[7] The applicant's case is that he bought a motor vehicle, to wit, a Toyota Hilux with registration letters and numbers CST 905 EC. He F took it to Madeira Police Station, Umtata, where it was subjected to thorough inspection and verification, to establish whether it was not reported a stolen motor vehicle and also whether there was any tampering with identifying features on it. The police issued a clearance certificate confirming that there was nothing irregular with the motor vehicle, and it was later registered in the name of the applicant. A copy of the motor-vehicle licence in respect of this motor vehicle was attached G to the papers.

[8] During August 2008, while the said motor vehicle was at Ntlaza taxi rank, Libode, it was seized and taken away by police to Mthatha Central Police Station. At Central Police Station, Mthatha, the police found no H irregularities with the motor vehicle, but they said they wanted to conduct further investigations. He demanded that the motor vehicle be released to him, but the police refused to do so.

[9] The respondents' case is that on 7 October 2008, in the morning, a roadblock was set up by the police under Captain Kwanini near St Barnabas I Hospital at Ntlaza, Libode, by virtue of an authorisation in terms of s 13(8) of the South African Police Service Act 68 of 1995 issued by Superintendent Mbuyiselo Killion Jingxi, the Station Commissioner of Libode Police Station, Libode. They stopped this motor vehicle at that roadblock, examined it and found that its chassis and engine numbers had been tampered with and also the tags of the J manufacturer had been removed. As a result of those findings they had

2012 (1) SACR p633

Dukada AJ

reasonable grounds for believing that the motor vehicle was concerned...