Nonaye v Minister of Safety and Security

• Jurisdiction: South Africa
• Judge: Makaula AJ
• Judgment Date: 09 May 2008
• Docket Number: 1647/2007
• Hearing Date: 06 May 2008
• Court: Transkei Division

Makaula AJ:

[1] The applicant launched an application seeking an order in the following terms:

2008 JDR 0506 p2

Makaula AJ

1.

that the search, seizure and continued detention of the applicant's motor vehicle to wit, a White Toyota Hilux with registration letter and number DKT 410 EC (the motor vehicle) be declared unlawful;

2.

that the respondents be directed to forthwith release the motor vehicle to the applicant;

3.

that the respondents be interdicted and restrained from further unlawfully interfering with the applicant's possession of the motor vehicle; and

4.

that the 1st respondent pay the costs of this application on an attorney and client scale and that the 2nd respondent pay such costs, jointly and severally with the 1st respondent, the one paying, the other to be absolved, only in the event of him opposing this application;

5.

granting such further and/or alternative relief as this Honourable Court may deem meet.

[2] The respondents then opposed the application and filed an answering affidavit. It transpired from the answering affidavit that at the time of seizure, the police were relying on a search warrant which was obtained from the Magistrate, Mqanduli on the 6th of September 2007. This necessitated that the applicant should join the Magistrate, Mqanduli as a party since he was challenging the lawfulness of the search warrant. On

2008 JDR 0506 p3

Makaula AJ

28 February 2008 the Magistrate was joined as a third respondent and was served with the papers and granted leave to file an answering affidavit.

[3] The applicant then filed an amended Notice of Motion with the following prayers:

"1.

that the search warrant issued by the third respondent attached to the respondents' answering affidavit being annexure "V1" be declared invalid and of no force and effect and be set aside as a nullity;

2.

that the search, seizure and continued detention of the applicant's motor vehicle to wit, a Toyota Hilux with registration letters and numbers DTK 410 EC (the motor vehicle) be declared unlawful;

3.

that the respondents be directed to forthwith release the motor vehicle to the applicant;

4.

that the respondents be interdicted and restrained from further unlawfully interfering with the applicant's possession of the motor vehicle; and

5.

that the 1st respondent pay the costs of this application on an attorney and client scale and that the 2nd respondent pay such costs, jointly and...