Ntoyakhe v the Minister of Safety and Security and Others

• Jurisdiction: South Africa
• Judge: Erasmus J
• Judgment Date: 05 August 1999
• Citation: 1999 (2) SACR 349 (E)
• Hearing Date: 05 May 1999
• Counsel: S H Cole for the applicant B J Pienaar for the respondents
• Court: Eastern Cape Division

Erasmus J:

The applicant seeks an order declaring invalid and unlawful the H detention by the SA Police Service of a motor vehicle described as a 1987 Toyota Hi - Ace combi with registration letters and numbers BFJ660EC ('the vehicle'). On the basis of such declarator, applicant then seeks the return to him of the vehicle. There is also a prayer for costs. The application is opposed by all three of the respondents. I

The application was lodged with the Registrar on 25 July 1997. Notice of opposition was served on 4 September 1997. The opposing affidavit, that of second respondent, is dated 12 December 1997. Nothing further transpired until respondents' attorneys on 26 October 1998 set the matter down for hearing 'by agreement' for 3 December 1998. On J

Erasmus J

27 October 1998 applicant's attorneys filed a notice of withdrawal in terms of Rule A 16(4). On 3 December 1998 the matter was postponed to 18 February 1999. Applicant's replying affidavit was filed on 22 January 1999. On 18 February 1999 the application was postponed to 1 April 1999. A further affidavit, dated 19 March B 1999, by second respondent was filed on 23 March 1999. On 1 April 1999, the matter was once more postponed, to 6 May 1999, when it was heard. These dates and developments are relevant due to the fact that applicant seeks to extend his cause of action to facts and circumstances arising after the date that the application was launched. I deal with this aspect later in the judgment. C

It is common cause that second respondent, acting in the course of his employment with the South African Police Service, on 2 May 1997 seized the vehicle. It is at present being held at the Queenstown Police Station by the police. Two main issues arise regarding the lawfulness of the police action: (A) the initial seizure of the vehicle; and (B) the continued detention thereof. D

A The lawfulness of the seizure of the vehicle

In his founding affidavit applicant claims that he is the lawful owner of the vehicle. He states that he bought it 'on or about June 1996 from one Mlungisi Mthethwa'. (It is apparently common cause that this person is the 'Mlungisi Mthetho' mentioned E elsewhere in the papers. I refer to him as 'Mthetho' for the sake of clarity and consistency.) Applicant claims that it was their agreement that the vehicle would remain in the name of Mthetho and would be transferred to him only upon payment of the purchase price in full, which has not as yet transpired. He attaches a F certificate of ownership in the name of Mthetho. He says further that on or about the end of March 1997 the vehicle developed an engine knock. As result thereof he purchased a second-hand engine and fitted it to the vehicle. On 2 May 1997, he took the vehicle to the Elliot Police Station for the purposes of clearing it. Such G clearance is a requirement whenever an engine has been removed and replaced by another. Whilst a policeman in Elliot was in the process of effecting the clearance, the second respondent arrived and seized the vehicle because - so he indicated - he suspected it to be stolen. Second respondent did not have any search or seizure warrant. Applicant says that he did not consent to the seizure of H the motor vehicle but had to 'succumb' as second respondent threatened to arrest him if he stood in his way. He then describes his fruitless efforts thereafter to obtain the return of the vehicle from the Motor Theft Unit of the SA Police Service. He alleges that he has not been charged with any offence in connection with the I vehicle and that no charges are, or ever were, contemplated against him or anyone else in relation thereto. He claims that he requires the motor vehicle to earn his living of conducting a taxi business. The continued detention of the vehicle is causing him and his family irreparable harm. He submits that the detention is invalid in law for the following reasons: J

Erasmus J

'1.

The seizure of my motor vehicle was not done according to law as there was no search A warrant nor has it been suggested why same was not obtained by the police before seizing my motor vehicle.

2.

The police did not obtain my consent in seizing my motor vehicle.

3.

Nobody has been arrested or charged in connection with this motor vehicle or any other offence in connection with it. B

4.

The said motor vehicle is not required to afford evidence in any court of law nor is it clear that it will be so required in the near future.'

In the opposing affidavit, the second respondent states that he is an inspector in C the South African Police Service attached to the Motor Unit and stationed at Queenstown. He explains that every Toyota vehicle has a number punched into the engine, as well as one punched into the chassis. This chassis number appears on each window of the vehicle. Every Toyota, furthermore, has a factory plaque on D which appears the model number, engine number, chassis number, work number and relevant particulars such as weight, etc. This plaque in a minibus is found on the pillar at the side door. In addition, each Toyota has a 'sido plaatjie E (werksplaatjie)' showing the particular factory's work number. Such work number enables an investigator to obtain further particulars of the vehicle from police computers, or from the factory. No two Toyota vehicles have the same particulars, unless falsified. These particulars are used by the police in their combating of crime.

Second respondent further states that on the basis of information received from informers, he believes Mthetho to be the head of a motor theft syndicate. He F regards his information to be reliable. According to this information Mthetho operates in the Transkei, also in the Queenstown and Elliot areas. He is investigating 16 cases of motor theft against Mthetho.

Second respondent explains his actions on 2 May 1997. He was at the Elliot G Police Station when applicant presented the vehicle for clearance. He noticed that in one of the documents Mthetho was indicated as the owner of the vehicle. He asked applicant whether he could examine the vehicle. Applicant consented. The examination revealed the following:

•

the driver's door had a welded join at the position where access is gained to the chassis of the vehicle; H

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the sido plaque had been removed;

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the chassis number had been erased from the windows;

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the manufacturer's plaque had been tampered with, being damaged on both sides. I

These facts and circumstances caused him to suspect that the vehicle was stolen. This suspicion was strengthened by the involvement of Mthetho.

Second respondent states that he wished to continue his investigation and therefore requested applicant to leave the vehicle at J

Erasmus J

the police station. Applicant consented and undertook to return to the police A station the next Monday, 5 May 1997, together with Mthetho. It was therefore not necessary for him to obtain a search warrant...