Ngqukumba v Minister of Safety and Security and Others

JurisdictionSouth Africa
JudgeMoseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Madlanga J, Mhlantla AJ, Nkabinde J and Zondo J
Judgment Date15 May 2014
Citation2014 (5) SA 112 (CC)
Docket NumberCCT 87/13 [2014] ZACC 14
Hearing Date14 November 2013
CounselS Mbenenge SC (with A da Silva and N Mnqandi) for the applicant. N Dukada SC and M Matyumza for the respondents.
CourtConstitutional Court

Madlanga J (Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Mhlantla AJ, Nkabinde J and Zondo J concurring): B

Introduction

C [1] Section 68(6)(b) of the National Road Traffic Act [1] (Traffic Act) prohibits possession 'without lawful cause' of a motor vehicle of which the engine or chassis number has been falsified or mutilated. This matter concerns the question whether this section entitles the police to withhold a vehicle which they have seized unlawfully. The Eastern Cape High Court, D Mthatha (the high court), following Supreme Court of Appeal authority, [2] held — against the applicant — that it does. [3] An appeal to the Supreme Court of Appeal failed. [4] The applicant comes before us by way of an application for leave to appeal.

Background

E [2] On 10 February 2010 a suspect who was under investigation by the police in connection with a stolen vehicle volunteered unrelated information. The information was that he had previously been involved in the theft of another vehicle. He told the police that this vehicle was at a certain taxi rank in Mthatha. The police took him there. He pointed out F the vehicle to them. This was the applicant's vehicle. The police instructed the applicant's driver to take the vehicle to a police station. There they discovered that its chassis number had been tampered with and appeared to have been removed from another vehicle and placed in the applicant's vehicle; there was no engine number since the original engine number G had been ground off; and the manufacturer's tag plate had been removed from another vehicle and placed on the applicant's vehicle. The police retained the vehicle. During all this the police were without a search-and-seizure warrant.

[3] The applicant subsequently instituted proceedings in the high court for the return of the vehicle. The cause of action was the mandament van H spolie, [5] the essence of which is explained below. It was not contested that the applicant had been in possession of the vehicle prior to the

Madlanga J (Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Mhlantla AJ, Nkabinde J and Zondo J concurring)

seizure. In the main, the police contended that because the engine and A chassis numbers of the vehicle had been tampered with, it was legally incompetent to order its return to the applicant. This stance was based on the provisions of s 68(6)(b) [6] read with s 89(1) [7] of the Traffic Act. The substance of the argument was that, if the court were to order restoration of possession, it would effectively be assisting the applicant in B the commission of a criminal offence.

[4] The high court found the seizure to have been unlawful. However, it refused to order the return of the vehicle to the applicant because his possession of it would constitute a criminal offence in terms of s 68(6)(b) C read with s 89(1) of the Traffic Act. Instead, it ordered the retention of the vehicle by the police until it had been reregistered in accordance with the Traffic Act. It granted the applicant leave to appeal to the Supreme Court of Appeal. That culminated in the appeal that did not succeed. The respondents [8] did not appeal against the declaratory order that the seizure had been unlawful. [9] D

Madlanga J (Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Mhlantla AJ, Nkabinde J and Zondo J concurring)

A [5] The Supreme Court of Appeal — following a number of its previous decisions [10] — held that it was not competent to order the return of the vehicle to the applicant. The basis was the prohibition on possession of a tampered vehicle 'without lawful cause'. [11] It held:

B 'The appellant's possession of the vehicle for now — until such time as a police clearance is issued and the vehicle is registered in accordance with the provisions of the Act — will thus be unlawful according to the criminal law. The police cannot lawfully release the vehicle to the appellant, whether he is the owner or erstwhile lawful possessor thereof. An order by a court that it be done will be no different than ordering a C person to be restored in the possession of his or her heroin or machine gun which he or she may not lawfully possess. In fact, when counsel for the appellant was invited in argument to distinguish this case from a claim by the former possessor of heroin, he was unable to do so.' [12] [Footnote omitted.]

D [6] Before us the applicant persists in seeking restoration of possession. [13] The respondents remain adamant in their opposition.

Issues

[7] The issues that arise are whether (a) leave to appeal should be E granted; and (b) in proceedings for a spoliation order s 68(6)(b) read with s 89(1) of the Traffic Act precludes restoration of possession.

Condonation

[8] Before dealing with the issues, let me dispose of an application for F condonation brought by the applicant. The application for leave to appeal to this court was filed out of time. The respondents do not oppose. They made it clear during oral argument that they too stand to benefit from a judgment of this court on the merits. It is not necessary to set out the factors that have informed my decision on this issue. Suffice G it to say, on balance I take the view that condonation should be granted.

Madlanga J (Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Mhlantla AJ, Nkabinde J and Zondo J concurring)

Leave to appeal A

[9] This case raises issues that are firmly rooted in the rule of law, a founding value of the Constitution. [14] It also involves an important issue of statutory interpretation relating to possession — a subset of the right to property — in a manner consonant with the provisions of s 39(2) and (3) of the Constitution. [15] At the centre of it all is the spoliation order in the B context of statutory provisions which, on their face, appear to preclude restoration of possession — a vexing subject which has seen the Supreme Court of Appeal overruling one of its judgments in as short a period as only one year to the day. [16] Needless to say, these legal issues are constitutional in nature. They are complex and of great import. Without C doubt, it is in the interests of justice for this court to pronounce on them. Leave to appeal must be granted.

Do ss 68(6)(b) and 89(1) preclude a spoliation order?

[10] The essence of the mandament van spolie is the restoration before all else of unlawfully deprived possession to the possessor. It finds D expression in the maxim spoliatus ante omnia restituendus est (the despoiled person must be restored to possession before all else). [17] The

Madlanga J (Moseneke ACJ, Skweyiya ADCJ, Cameron J, Dambuza AJ, Froneman J, Jafta J, Mhlantla AJ, Nkabinde J and Zondo J concurring)

A spoliation order is meant to prevent the taking of possession otherwise than in accordance with the law. [18] Its underlying philosophy is that no one should resort to self-help to obtain or regain possession. [19] The main purpose of the mandament van spolie is to preserve public order by restraining persons from taking the law into their own hands and by inducing them to follow due process. [20]

B [11] This applies equally whether the despoiler is an individual or a government entity or functionary. In Vena [21] the then Appellate Division, now the Supreme Court of Appeal, endorsed Sithole: [22]

'The Court came to the conclusion that the section was not worded so C clearly as to detract from the general principle of law . . . that there shall be no spoliation by any person, be it an individual, or a government department or a municipality or any similar body. . . . What the learned Judge said at 117D – F bears repetition:

". . . (T)he clear principle of our law is that, ordinarily speaking, persons are not entitled to take the law into their own hands to enforce their rights. There is a legal process by which D the enforcement of rights is carried out. Normally speaking, it is carried out as a result of an order of court being put into effect through the proper officers of the law such as the sheriff, deputy sheriff, messenger of the magistrate's court or his deputies, reinforced if necessary, by the aid of the police or E some such authority; in most civilised countries there exists the same principle that no person enforces his legal rights himself. For...

To continue reading

Request your trial
30 practice notes
20 cases
  • Hlumisa Investment Holdings RF Ltd and Another v Kirkinis and Others
    • South Africa
    • Invalid date
    ...v Farmers’ Co-operative Meat Industries Ltd 1922 AD 16: dictumat 23 appliedNgqukumba v Minister of Safety and Security and Others 2014 (5) SA112 (CC) (2014 (7) BCLR 788; [2014] ZACC 14): dicta in paras [16]and [18] comparedOff-Beat Holiday Club and Another v Sanbonani Holiday Spa Shareblock......
  • Hlumisa Investment Holdings Rf Ltd and Another v Kirkinis and Others
    • South Africa
    • Invalid date
    ...referred to Minister of Law and Order v Kadir 1995 (1) SA 303 (A): referred to Ngqukumba v Minister of Safety and Security and Others 2014 (5) SA 112 (CC): dictum in para [16] applied Off-Beat Holiday Club and Another v Sanbonani Holiday Spa Shareblock Ltd and Others 2016 (6) SA 181 (SCA) (......
  • Hlumisa Investment Holdings Rf Ltd and Another v Kirkinis and Others
    • South Africa
    • Supreme Court of Appeal
    • 3 July 2020
    ...167; Attorney-General, Transvaal v Botha 1994 (1) SA 306 (A) at 330I – J. [39] Ngqukumba v Minister of Safety and Security and Others 2014 (5) SA 112 (CC) ([2014] ZACC 14) para [40] 25(1) Lawsa 2 ed para 340. [41] Oxford English Dictionary (2008). [42] See para 4.7 of the policy paper, 'Sou......
  • Goqwana v Minister of Safety and Security NO and Others
    • South Africa
    • Invalid date
    ...of the Constitution, which requires that national legislation be enacted to give effect to this right. [33] 2014 (2) SACR 325 (CC) (2014 (5) SA 112). [34] Id paras 10 – 21. See also Judelman v Colonial Government (1909) 3 Buch AC 446 at 453; Sillo v Naude 1929 AD 21 at 26; Mans v Marais 193......
  • Request a trial to view additional results
10 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT