Mehlape v Minister of Safety and Security

• Jurisdiction: South Africa
• Judge: Streicher J
• Judgment Date: 04 March 1996
• Citation: 1996 (4) SA 133 (W)
• Docket Number: 17303/95,
• Hearing Date: 02 February 1996
• Counsel: F R Memane for the applicant. D J Joubert for the respondent.
• Court: Witwatersrand Local Division

B Streicher J:

The applicant alleges that he is the owner of a certain Jetta motor vehicle PYC 346T with engine number VZZZ16ZMUO14624 and chassis number EV224720 and that the police are in possession of this vehicle.

The applicant pointed a vehicle out to Warrant Officer Van Graan at the Isando exhibit C camp of the police as being the aforesaid vehicle.

The respondent disputes that the vehicle pointed out by the applicant is the aforesaid vehicle.

Counsel for the applicant asked that the dispute be referred to evidence.

D The respondent raised two points in limine. First, that the application should be dismissed in that the applicant failed to comply with the provisions of s 17(2) of the South African Police Service Rationalisation Proclamation R5 of 1995. Second, that the application was premature in that the police had not completed their investigation in respect of the vehicle held by them. E

The respondent did not make out any case that the police's possession of the vehicle in question was lawful. The mere fact that the police in some unknown way came into possession of the vehicle and have not completed their investigation in respect of the vehicle does not entitle the police to deprive the owner of the vehicle of possession.

F Section 17(1) and (2) of the proclamation provides as follows:

'(1) No legal proceedings shall be instituted against the State or any body or person in respect of any alleged act performed in terms of this proclamation, or an alleged failure to do anything which should have been done in terms of this proclamation, unless the legal proceedings are instituted before the expiry of a period of 12 calendar months after the date upon which the claimant G became aware of the alleged act or omission, or after the date upon which the claimant might be reasonably expected to have become aware of the alleged act or omission, whichever is the earliest date.

(2) No such legal proceedings shall be instituted before the expiry of at least one calendar month after written notification of the intention to institute such proceedings has been served on the defendant, wherein particulars of the H alleged act or omission are contained.'

One calendar month's written notification is therefore required of proposed legal proceedings in respect of an alleged act performed in terms of the proclamation or an alleged failure to do anything which should have been done in terms of the...