Mnyungula v Minister of Safety and Security and Others

• Jurisdiction: South Africa
• Judge: Ebersohn AJ
• Judgment Date: 04 June 2003
• Citation: 2004 (1) SACR 219 (TKH)
• Docket Number: 297/2003
• Hearing Date: 04 June 2003
• Counsel: M M Matyumza for the applicant. F S Gagela for the respondents.
• Court: Transkei High Court

Ebersohn AJ:

[1] The applicant in this matter applied on an urgent basis for a rule nisi calling upon the respondents to show cause why the respondents should not be ordered to return to him his Toyota Hilux vehicle (the vehicle) which was seized on 25 December 2002 without a warrant by the third respondent and which vehicle is presently in police custody. In Dyani v Minister of B Safety & Security and Others 2001 (1) SACR 634 (Tk) Jafta J, as he then was, stated the following at 642C - D with regard to seizures and searches:

'This would be in line with the provisions of s 25 of the Constitution which protects every person against being deprived of property except where such deprivation is done in terms of law of general application. Section 25 presupposes that every deprivation C shall comply with the requirements of the law authorising it. An unlawful search and seizure could also violate a person's constitutional rights to privacy and dignity which form an integral part of the core values upon which our Constitution is founded.'

[2] The applicant was also arrested on this day and it is common D cause that the applicant has already appeared on five occasions in the criminal court and the case against him was postponed on every occasion. The last postponement was on 30 April 2003.

[3] When the matter was called before me in the urgent Court the parties were prepared and ready to argue the matter on the merits and I proceeded to hear the matter on its merits. E

[4] The applicant alleged in his founding affidavit that he was in the undisturbed and peaceful possession of the vehicle since November 2001 when he purchased it from one Mtjongile. In para 9 of the founding affidavit he stated that when he enquired from Mtjongile where F he got the vehicle from, Mtjongile informed him that he purchased the vehicle at a police auction in Queenstown. He stated that he had to believe Mtjongile because when Mtjongile said so the police, who at that stage were checking the motor vehicle to ascertain whether it was stolen or not, 'also agreed and confirmed that the AAPV numbers are stamped by the police when a motor vehicle is sold at an auction sale by the police'. The third respondent, Sergeant Sonkosi, who seized the G vehicle, did not deny these allegations in the answering affidavit and in para 11 thereof, where he dealt, inter alia, with para 9 of the founding affidavit, stated that the contents of para 9 'were noted'.

[5] It is common cause that the third respondent, when he H seized the vehicle, purportedly did so in terms of ss 20 and 22 of the Criminal Procedure Act 51 of 1977 (the Act).

[6] In terms of s 20 of the Act, the State may seize anything (termed an 'article'), inter alia, I

'which is concerned in or on reasonable grounds believed to be concerned in the commission or suspected commission of an offence'

or

'which may afford evidence of the commission or suspected commission of an offence'. Ebersohn AJ J

Ebersohn AJ

[7] Section 21 of the Act, however, requires the seizure to be A effected by virtue of a search warrant subject to the provisions of ss 22, 24 and 25 of the Act. Only s 22 is relevant in this matter and that is to the effect that the police official may only seize any article referred to in s 20, without a warrant:

'(a)

if the person concerned consents to the search B for and seizure of the article in question, or if the person who may consent to the search of the container or premises consents to such search and the seizure of the article in question; or

(b)

if he on reasonable grounds believes -

(i)

that a search warrant will be issued to him under para (a) of s 21(1) if he applies for such warrant; and C

(ii)

that the delay in obtaining such warrant would defeat the object of the search'.

[8] Section 20 of the Act was considered in many cases by the courts. In Ndabeni v Minister of Law and Order and Another 1984 (3) SA 500 (D) Didcott J stated the following at 511D - E: D

'The second respondent [that is the policeman concerned] no doubt thought that there were reasonable grounds for the belief he held. That, however, was by the way. Section 20 of the Criminal Procedure Act calls for the existence in fact of reasonable grounds. And whether these exist in a given case must be determined objectively. Milne J once said:

''There can only be reasonable cause to believe . . . where, E considered objectively, there are reasonable grounds for the belief. . . . (I)t cannot be said that an officer has reasonable cause to believe . . . merely because he believes he has reasonable cause to believe.'''

[9] The quotation referred to is from the judgment by Milne J, as he then was, in Watson v Commissioner of Customs and F Excise 1960 (3) SA 212 (N).

[10] In the unreported case of Sigwebedlana v Minister of Police, case No 27/94 in this Division, Davies AJ, as he then was, expressed his agreement with the test set out in the Watson case supra. In the same case he said the following: G

'In my view the fact that an article illegally seized is a potential or indeed an actual exhibit does not mean that the owner cannot get it back.'

[11] This aspect was also considered in this...