Mkhuba v Minister of Police and Another

• Jurisdiction: South Africa
• Judge: Beshe J
• Judgment Date: 13 February 2014
• Citation: 2014 (2) SACR 205 (ECM)
• Docket Number: 85/2013
• Hearing Date: 11 February 2014
• Counsel: Adv Qitsi for the applicant. L Singqumba (attorney) for the respondents.
• Court: Eastern Cape Division

Mkhuba v Minister of Police and Another
2014 (2) SACR 205 (ECM)

2014 (2) SACR p205

Citation	2014 (2) SACR 205 (ECM)
Case No	85/2013
Court	Eastern Cape Local Division, Mthatha
Judge	Beshe J
Heard	February 11, 2014
Judgment	February 13, 2014
Counsel	Adv Qitsi for the applicant.; L Singqumba (attorney) for the respondents.

Flynote : Sleutelwoorde

Search and seizure — Seizure by police in terms of s 20 of Criminal Procedure Act 51 of 1977 — Disposal of articles thereafter — Section 34 of Act applicable only in respect of items transferred to court by police for purposes of trial. H

Arms and ammunition — Seizure of — Compensation for in respect of firearms and ammunition forfeited to state — Applicant seeking compensation, had valid licence to possess firearm when firearm seized, but licence had lapsed while firearm in custody of police — Sections 134 and 135 of Firearms Control Act 60 of 2000 not preventing payment of compensation. I

Headnote : Kopnota

The applicant applied for an order declaring that the action of the respondents in failing to hand over a firearm belonging to him was unlawful and should be set aside. He also prayed for an order directing the respondents to hand over the firearm to him or to compensate him for the firearm. It was common cause that the applicant had appeared in the magistrates' court in 2003 in connection with a charge of murder. At that time he held a licence J

2014 (2) SACR p206

A for the firearm in question that had been issued in 1998. In June 2005 the charges against him were withdrawn. According to the respondents, however, the matter had merely been removed from the roll pending the availability of a photograph album. In any event there was no evidence that since 2005 the matter had been put back on the roll. It was common cause that the firearm had been seized in terms of s 20 of the Criminal Procedure Act B 51 of 1977 (the Act). After the withdrawal of the charges against him the applicant approached the investigating officer on numerous occasions requesting him to hand over the firearm. The investigating officer in question was subsequently transferred and thereafter the applicant received no assistance from the station commander at that police station. He launched the present proceedings in January 2013 which were opposed by C the respondents on the basis that the firearm in question would be used as an exhibit in pending criminal proceedings against the applicant. In this regard they relied on the provisions of s 34 of the Act. The respondents contended further that, as the applicant's licence had been issued in 1998, it would have expired five years later and the police accordingly could not return the firearm to the applicant, as he did not have a valid licence for it. D It appeared, however, from documents handed in by the respondents that the firearm in question had actually been stolen from the police station in 2005 and was no longer in the possession of the respondents. As regards compensation, the respondents contended that no compensation was payable in terms of the provisions of ss 134 and 135 of the Firearms Control Act 60 of 2000.

Held, that s 34 of the Act applied only to instances where the item in question E had been transferred to court by the police for purposes of the trial. There was no evidence that this had happened in the instant case. (Paragraph [5] at 209c.)

Held, further, that s 134 did not apply, as the firearm in question had not been forfeited to the state. Section 135 also did not apply, as a licence had been issued to the applicant and the firearm was lawfully in his possession at the F time it was seized. In the circumstances the applicant or his firearm did not fall under any of the categories or scenarios mentioned in s 135 and he was therefore entitled to compensation. (Paragraph [10] at 211d.)

Annotations:

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, ss 20 and 34: see Juta's Statutes of South Africa 2012/13 vol 1 at 2-343 and 2-345

The Firearms Control Act 60 of 2000, ss 134 and 135: see Juta's Statutes of South Africa 2012/13 vol 1 at 3-40.

Case Information

H Adv Qitsi for the applicant.

L Singqumba (attorney) for the respondents.

An application to compel the respondents to return a firearm seized in terms of s 20 of the Criminal Procedure Act 51 of 1977.

Order

(1)

The I respondents are directed to compensate the applicant for his firearm with serial No 820394, a Norinco CAL 0587 pistol that was stolen whilst in the custody of the respondents.

(2)

Respondents are ordered to pay the costs of the application, the one J paying the other to be absolved.

2014 (2) SACR p207

Judgment

Beshe J:

Introduction

[1] A This is an application wherein an order in the following terms is sought:

(1)

This honourable court should declare the administrative action of B the respondents in failing to hand over a firearm belonging to the lawful owner or the applicant unlawful, unconstitutional, invalid and of no legal force and effect and that such administrative action should be reviewed and set aside.

(2)

Directing the first and second respondents to hand over a licensed firearm, No 820394, 9 mm pistol Norinco CAL 0587, to the C applicant, the lawful owner, or to compensate him as such.

(3)

...