Sithonga v Minister of Safety and Security and Others

• Jurisdiction: South Africa
• Judge: Van Zyl J, Jansen J and Miller J
• Judgment Date: 24 May 2007
• Docket Number: A122/06
• Hearing Date: 24 May 2007
• Counsel: SM Mbenenge SC (with AM da Silva) for the appellant. S Notshe SC (with PV Msiwa) for the respondents.
• Court: Transkei High Court

Van Zyl J:

Introduction:

F [1] At issue in this appeal is the lawfulness of a search and seizure carried out by members of the South African Police Service at the Chiwani Workshop, a business premises in the Libode district. The search was carried out pursuant to a written authorisation issued in terms of the provisions of s 13(8) of the South African Police Service Act 68 of 1995 G (the Act), which section authorises the national or provincial commissioner to, inter alia, authorise a member under his command to set up checkpoints at any public place in a particular area.

The factual position

[2] The events surrounding the search and seizure are briefly the H following: on 4 January 2006 a police officer, namely Captain Tsoananyane (Tsoananyane) approached the station commissioner of the Libode Police Station and applied for authorisation in terms of s 13(8) of the Act. The station commissioner issued a written authorisation (the authorisation), authorising Tsoananyane to set up checkpoints at I 'Libode taxi ranks, scrap yards and mechanical workshops' with the purpose of recovering illegal firearms and stolen motor vehicles.

[3] Armed with this document Tsoananyane and other police officers proceeded to Chiwani Workshop on 5 January 2006 where they entered the premises and found the two vehicles forming the subject-matter of J this appeal. The vehicles were examined, and it was established that

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some of the identification features thereof, such as the engine numbers A and manufacturer's tags had been tampered with by being erased or removed and replaced. The vehicles were seized and removed from the premises of the workshop.

[4] According to the appellant she purchased the two vehicles in 1999. In order to verify that the vehicles were not stolen she took them to the B motor vehicle theft unit of the police to be inspected. She was issued with a clearance certificate whereafter the vehicles were licensed and registered in her name. As proof thereof the appellant annexed to her affidavit the registration and licensing documentation pertaining to the two vehicles.

[5] The appellant used the vehicles as taxis. Because the one vehicle C experienced mechanical problems, she took it to Chiwani Workshop where it was left to be repaired. On 5 January 2006 the appellant sent a certain Cebu, whom she employed as a driver, to establish if the vehicle had been repaired. Cebu drove to the workshop in the second vehicle. Whilst Cebu was at the workshop Tsoananyane arrived. Despite Cebu's D protestations, the vehicles were seized and taken to the Libode Police Station.

[6] The appellant's response was to approach Tsoananyane at the police station and request that her vehicles be released. She was told that the vehicles had been seized because they were suspected of having been E stolen and had been taken to the Mthatha Central Police Station.

[7] The appellant then launched application proceedings for the seizure of the vehicles to be declared unlawful and for the vehicles to be returned to her. In her founding affidavit the appellant placed reliance for the relief sought on the possessory remedy provided by the mandament van spolie. F Van Zyl J

The nature of this application is a mandament van spolie wherein I am asserting a possessory remedy for the return of my motor vehicles which were unlawfully seized from my peaceful and undisturbed possession. [1]

The principle underlying the mandament van spolie, namely that every person is entitled to retain whatever he or she has in his or her possession G until or unless he or she is lawfully deprived thereof, equally applies to the State and its servants. [2] A valid defence in spoliation proceedings may be, as in the present matter, that the dispossession was not unlawful because it is sanctioned by a statutory enactment. [3]

[8] From a reading of the papers filed by the respective parties, it is clear H that it is not in issue that the appellant was in peaceful and undisturbed possession of the vehicles and that she was deprived of such possession. The respondents, however, contend that the appellant's dispossession of the vehicles was not unlawful by reason of the fact that Tsoananyane

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A derived his authority to seize the vehicles from the authorisation issued by the Libode Station Commissioner (the third respondent) pursuant to the provisions of s 13(8) of the Act. [4]

[9] When it became clear from the respondent's answering affidavits that the search and seizure of the vehicles were carried out on the strength of B the authorisation issued by the third respondent, the appellant amended her notice of motion so as to also include a prayer for an order declaring the authorisation issued by the third respondent invalid. The court a quo dismissed the application with costs but granted the appellant leave to appeal to this court against the whole of the judgment.

C [10] The appeal essentially raises three issues. The first relates to the validity of the authorisation issued in terms of s 13(8) of the Act. In this regard two submissions were made: it was submitted that scrap yards and mechanical workshops are not public places as envisaged by s 13(8). It was further submitted that the authorisation was invalid because it was D couched in general and ambiguous terms and did not describe the relevant places with the requisite degree of precision. The second issue raised relates to the lawfulness of the execution of the authorisation. In this regard it was submitted that, because checkpoints were not set up as required by s 13(8), the search and the seizure of the vehicles were E rendered unlawful. The third issue raises the question as to the nature of the relief the appellant is entitled to, should it be found that the seizure of the vehicles was unlawful.

[11] During argument counsel referred us to a number of decisions emanating from this division wherein these issues were raised and F opinions expressed on the interpretation thereof. [5] We were informed that in some of these matters appeals had been lodged and that the outcome of this appeal is being awaited as it might influence the future conduct of those matters. For this reason I intend to deal with all the issues raised insofar as they were fully addressed by the parties before us.

G [12] Before doing so it is necessary to dispose of a preliminary issue. The respondents made application in terms of rule 30 of the Rules of Court for the appellant's notice of appeal to be declared an irregular proceeding on the basis that it does not comply with the requirements of rule 49(3). Whilst the manner in which the notice of appeal was drafted is open to H some criticism, I am not convinced that it is such so as to constitute an irregular proceeding. I, however, find it unnecessary to deal with this because the respondents' application in terms of rule 30 is defective. The reason is that it was not filed within the ten-day period as required by

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subrule (2)(b) and no explanation for this failure was advanced in the A affidavit accompanying the application. As a result the application is dismissed.

The provisions of s 13(8) of the Act

[13] From a reading of the written authorisation relied upon by the respondents, it is clear that it was issued in terms of para (a) of s 13(8) B of the Act. The relevant portions of this section read as follows:

(a) The National or Provincial Commissioner may, where it is reasonable in the circumstances in order to exercise a power or perform a function referred to in section 215 of the Constitution, in writing authorise a member under his or her command, to set up a roadblock or roadblocks on C any public road in a particular area or to set up a checkpoint or checkpoints at any public place in a particular area.

(b) The written authorisation referred to in paragraph (a) shall specify the date, approximate duration, place and object of the proposed action.

(c) Any member authorised under paragraph (a) may set up a roadblock or roadblocks or cause a roadblock or roadblocks to be set up on any public D road in the area so specified or set up a checkpoint or checkpoints or cause a checkpoint or checkpoints to be set up at any public place in the area so specified.

(d) .....

(e) For the purposes of exercising the powers conferred by paragraph (c) or (d), a member shall display, set up or erect on or next to the road or at E the public place such sign, barrier or object as is reasonable in the circumstances to bring the order to stop to the attention of the driver of a vehicle approaching the roadblock so as to ensure that the vehicle will come to a stop or to the attention of a person approaching the checkpoint.

(f) Any driver of a vehicle who approaches a roadblock or any person who approaches a checkpoint and who refuses or fails to stop in accordance with F an order to stop displayed as contemplated in paragraph (e), shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding six months.

(g) Any member may, without warrant -

(i)

in the event of a roadblock or checkpoint that is set up in accordance with paragraph (c), search any person or vehicle stopped at such G roadblock or checkpoint and any receptacle or object of whatever nature in the possession of such person or in, on or attached to such vehicle and seize an article referred to in section 20 of the Criminal Procedure Act, 1977, found by him or her in the possession of such person or in, on or attached to such receptacle or vehicle: Provided that a member executing a search under this subparagraph shall, upon H demand of any person whose rights are or have been affected by the search or seizure, exhibit to him or her a copy of the written authorisation by the Commissioner concerned; and...