Mokoena v Minister of Law and Order

• Jurisdiction: South Africa
• Judge: Van Schalkwyk J and Coetzee J
• Judgment Date: 13 March 1991
• Court: Transvaal Provincial Division
• Hearing Date: 27 September 1990
• Citation: 1991 (3) SA 187 (T)

Coetzee J:

In the magistrate's court at Pretoria the present appellant instituted an application worded:

'Application in terms of s 30 of Act 51 of 1977, as amended. Kindly take notice that an application will be made to the above honourable court on 16 May 1989 or so soon thereafter as the application may be heard for the following orders:

1.

F Dispensing with the Rules of Court and hearing this matter as one of urgency.

2.

That the motor vehicle, that is the engine and the body, Colt Galant with registration number LEB-8 903 be returned to the applicant immediately.

3.

G Cost of suit.

4.

Further and/or alternative relief.'

The respondent filed 19 pages of answering affidavit and a number of annexures which comprised another 13 pages.

It is necessary that the facts be fairly and fully set out. It is common cause that the appellant was the owner of a Colt Galant H registration No LEB-8 903. That vehicle was at the institution of the application in the possession of the South African Police who seized it in April 1988. That vehicle had been registered in the name of the appellant since 1978.

In June 1988 the appellant's attorney requested the police to return the vehicle. The police attached the vehicle in terms of s 20 of the I Criminal Procedure Act 51 of 1977. The Attorney-General eventually decided not to prosecute and a policeman then wrote the following letter to the appellant's attorneys dated 28 March 1989:

'Meneer

Gesteelde Bakwerk: Colt Galant: Registrasienommer LEB-8 903: Mamelodi MR J 161/2/89

Coetzee J

A In die lig daarvan:

(1)

dat die bakwerk van bovermelde voertuig nie vir die doeleindes van bewyslewering of 'n hofbevel benodig word nie, en

(2)

dat bovermelde voertuig se bakwerk 'n gesteelde bakwerk is en dat u kliënt dit derhalwe nie wettiglik mag besit nie, en

(3)

dat die Suid-Afrikaanse Polisie nie weet van iemand wat dit B wettiglik mag besit nie, is die bakwerk van die voertuig kragtens die bepalings van art 31(1)(b) van die Strafproseswet 1977 aan die Staat verbeur.'

This was signed by Captain J J Viktor.

Exhibit D p 33 is said to be a disposal of exhibits in respect of this specific vehicle. It is signed by a certain Lieutenant G van der Merwe and it reads as follows: C

Disposal Order: It is ordered that the exhibits mentioned above be disposed of as follows:

1.

Bakwerk verbeurdverklaar aan die Staat.

2.

Oorhandig die masjien aan Junius Mokoena van 2821 Blok J Mamelodi.'

By virtue whereof a lieutenant of the South African Police could issue D an order that the vehicle be declared forfeited to the State is to me very unclear as I do not think that any policeman has the power to declare the vehicle forfeited. It is common cause as I have said that no criminal proceedings were instituted in connection with the vehicle and it seems as if the police acted in terms of s 31 of the Criminal Procedure Act.

Section 31 reads as follows: E

'31. Disposal of article where no criminal proceedings are instituted or where it is not required for criminal proceedings

(1)(a) If no criminal proceedings are instituted in connection with any article referred to in s 30(c) or if it appears that such article is not required at the trial for purposes of evidence or for purposes of an F order of court, the article shall be returned to the person from whom it was seized, if such person may lawfully possess such article, or, if such person may not lawfully possess such article, to the person who may lawfully possess it.

(b) If no person may lawfully possess such article or if the police official concerned does not know of any person who may lawfully possess such article the article shall be forfeited to the State.

G (2) The person who may lawfully possess the article in question shall be notified by registered post at his last-known address that he may take possession of the article and if such person fails to take delivery of the article within 30 days from the date of such notification, the article shall be forfeited to the State.'

By utilising application procedure the appellant applied to the H magistrate's court for the district of Pretoria for an order that the engine as well as the body of the vehicle be returned to him.

The magistrate approached the matter on the basis that this is an application for a spoliation order and that appellant had intended to bring an application in terms of s 30 of the Magistrates' Courts Act 32 of 1944, and not s 30 of the Criminal Procedure Act.

I The magistrate decided that this was an application for a mandament van spolie in terms of s 30 of Act 32 of 1944 and found as follows:

'The magistrate's reasons in terms of Rule 51(8)

Introduction

The applicant noted an appeal against a judgment, delivered by the J court on 30 May 1989.

Coetzee J

A The application, which was opposed, was lodged in terms of s 30 of the Criminal Procedure Act. The court as well as the legal representative for the respondent were under the impression that the reference to Act 51 of 1977 in the application was a mere typing error, but we were informed by the legal representative of the applicant that the application was indeed brought in terms of s 30 of the Criminal Procedure Act.

B The court pointed out that the Criminal Procedure Act did not provide for such a procedure, but that the court was prepared to hear the application if brought in terms of s 30 of Act 32 of 1944. (Magistrates' Courts Act.)

It was clear from the application and supporting affidavit that what C the applicant sought was an order for a mandament van spolie.

The applicant accepted the ruling, and the matter was argued on that basis by the applicant and respondent. The application was dismissed with costs.

Reasons for judgment

The object of the order is merely to restore the status quo ante the illegal action, and in order to obtain a spoliation order two allegations must be made and proved:

(1)

that the applicant was in possession of the property; and

(2)

D that the respondent deprived him of the possession forcibly and wrongfully against his consent.

See Jones and Buckle 8th ed at 93 - 7.

It is common cause that the applicant was in possession of the property, when same...