Minister of Police and Another v Stanfield and Others

• Jurisdiction: South Africa
• Citation: 2020 (1) SACR 339 (SCA)

Minister of Police and Another v Stanfield and Others
2020 (1) SACR 339 (SCA)

2020 (1) SACR p339

Citation	2020 (1) SACR 339 (SCA)
Case No	1328/2018; [2019] ZASCA 183
Court	Supreme Court of Appeal
Judge	Navsa JA, Mocumie JA, Plasket JA, Weiner AJA and Dolamo AJA
Heard	November 19, 2019
Judgment	December 2, 2019
Counsel	RF van Rooyen SC (with A Jooste) for the appellants.; N Snyman (with D Keet) for the respondents.

Flynote : Sleutelwoorde

Search and seizure — Return, in terms of s 31(1)(a) of Criminal Procedure Act 51 of 1977, of article seized to owner — Charges of unlawful possession of firearms withdrawn against accused — Accused required to show that no reasonable likelihood of criminal proceedings being instituted in connection with firearms in future.

Headnote : Kopnota

The appellants appealed against a decision of the High Court which dismissed an application for an order that firearms seized from the respondents be returned to them, but granted an alternative order that the matter be referred to an inquiry in terms of s 102 of the Firearms Control Act 60 of 2000.

The respondents had been charged with the unlawful possession of the firearms, but the matter had been provisionally withdrawn pending a decision by the Director of Public Prosecutions as to where the prosecution was to be held, given that there were other accused involved in other provinces who were to be charged with similar offences relating to the respondents' acquisition of the firearms. The appellants relied on the provisions of s 31(1)(a) of the Criminal Procedure Act 51 of 1977 (the CPA) which provided that if a seized article was not required at the trial for purposes of evidence or for purposes of an order of court, it had to be returned to the person from whom it was seized if such person could lawfully possess the article.

Held, that for the respondents to succeed in an application for the return of the firearms it was necessary for them to establish that there was no reasonable likelihood of criminal proceedings being instituted in connection with the firearms in the foreseeable future. (See [12].)

Held, further, that, even though the charges had been withdrawn, given the evidence before the court, there was a reasonable likelihood that they would be reinstated. (See [13] and [16].)

2020 (1) SACR p340

Held, further, that the court had to decide, on a balance of probabilities, whether the appellants' retention of the firearms was justified, and they had clearly shown this to be the case. Accordingly, the respondents were not entitled on any of the grounds in s 31(1)(a) of the CPA to the return of the firearms. (See [22].)

Cases cited

Dookie v Minister of Law and Order and Others 1991 (2) SACR 153 (D) ([1991] 1 All SA 390): dictum at 156c – e applied

National Director of Public Prosecutions v Five Star Import & Export (Pty) Ltd 2018 (2) SACR 513 (WCC): referred to

National Director of Public Prosecutions v Zuma 2009 (1) SACR 361 (SCA) (2009 (2) SA 277; 2009 (4) BCLR 393; [2009] 2 All SA 243; [2009] ZASCA 1): dictum in para [26] applied

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) ([1984] 2 All SA 366; [1984] ZASCA 51): dictum at 634 – 635 applied

Van der Merwe and Another v Taylor NO and Others 2008 (1) SA 1 (CC) (2007 (11) BCLR 1167; [2007] ZACC 16): dicta in para [51] applied.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 31(1)(a): see Juta's Statutes of South Africa 2018/19 vol 1 at 2-279

The Firearms Control Act 60 of 2000, s 102: see Juta's Statutes of South Africa 2018/19 vol 1 at 3-28 – 3-29.

Case Information

RF van Rooyen SC (with A Jooste) for the appellants.

N Snyman (with D Keet) for the respondents.

An appeal against a decision of the Gauteng Division, Johannesburg (Twala J), dismissing an application for the return of seized firearms to the respondents and instead ordering an inquiry in terms of s 102 of the Firearms Control Act 60 of 2000.

Order

1.

The appeal is upheld with costs, including the costs of two counsel.

2.

The order of the court a quo is set aside and replaced with the following:

'The applicants' application is dismissed with costs, including the costs of two counsel.'

Judgment

Weiner AJA (Navsa JA, Mocumie JA, Plasket JA and Dolamo AJA concurring):

[1] On 25 June 2014 the South African Police Service (the SAPS) seized certain firearms (the firearms) from the respondents in terms of a search-and-seizure warrant issued under the Criminal Procedure Act 51 of 1977 (the CPA). The respondents were arrested and charged with various offences relating to the unlawful issuing of the licences for the firearms.

[2] The respondents applied to the Gauteng Division of the High Court, Johannesburg (Twala J sitting as court of first instance), for an order compelling the SAPS to return the firearms to them in terms of s 31(1)(a)

2020 (1) SACR p341

Weiner AJA (Navsa JA, Mocumie JA, Plasket JA and Dolamo AJA concurring)

of the CPA, alternatively, that the matter be referred to an enquiry in terms of s 102 of the Firearms Control Act 60 of 2000 (the FCA). [1] The High Court granted the alternative relief. Leave to appeal was refused by the High Court. This appeal is with the leave of this court.

Background

[3] The respondents first launched an application against the SAPS in the Western Cape Division of the High Court, Cape Town (the Cape Town application), on 15 July 2014, seeking the return of the firearms and other items seized. In the answering affidavit, the SAPS alleged that the licences in respect of the firearms had been obtained unlawfully and that the possession of such firearms by the respondents would have been unlawful. The application was postponed sine die. By agreement between the parties, the court ordered that the SAPS may retain the firearms until obliged to return them or to dispose of them in terms of the provisions of the CPA.

[4] The respondents then launched the application in the court a quo. They claimed that the charges against them pertaining to the licences of the firearms had been withdrawn and that, accordingly, in...