Sithonga v Minister of Safety and Security and Others

• Jurisdiction: South Africa
• Citation: 2008 (1) SACR 376 (TK)

Sithonga v Minister of Safety and Security and Others
2008 (1) SACR 376 (TK)

2008 (1) SACR p376

Citation	2008 (1) SACR 376 (TK)
Case No	A122/06
Court	Transkei High Court
Judge	Van Zyl J, Jansen J and Miller J
Heard	May 24, 2007
Judgment	May 24, 2007
Counsel	SM Mbenenge SC (with AM da Silva) for the appellant.; S Notshe SC (with PV Msiwa) for the respondents.

Flynote : Sleutelwoorde B

Search and seizure — Roadblocks and checkpoints — Setting-up of — Section 13(8) of South African Police Service Act 68 of 1995 — Provision restricting setting-up of checkpoints to public places — Meaning of 'public places' — Nothing in phrase to indicate that it should be given extended meaning so C as to include place to which owner could deny anyone access — In common law, limited to places serving interests of broader public, such as public open spaces and public roads — Subsection to be interpreted in manner that would prevent unnecessary and excessive interference with rights and interests of individuals — Limiting meaning of phrase to those D places where public having right to go not frustrating objects of Act.

Search and seizure — Roadblocks and checkpoints — Setting-up of — Section 13(8) of South African Police Service Act 68 of 1995 — Authorisation issued in terms of Act must describe place(s) where checkpoints to be set up with sufficient particularity — Simply referring to 'scrap yards and mechanical workshops' not sufficient — Where terms of authorisation too general, such E authorisation invalid.

Search and seizure — Roadblocks and checkpoints — Setting-up of — Section 13(8) of South African Police Service Act 68 of 1995 — Police officer obtaining authorisation to set up checkpoint but instead, on strength of such authorisation, searching private premises and seizing vehicles found F there — Authorisation itself not constituting search warrant — Power to search and seize arising from, and subject to, setting-up of roadblock or checkpoint — Because s 13(8) making serious inroads into individual rights, to be interpreted restrictively — In effect, officer using power to set up checkpoint for some purpose other than that for which it was intended — Search and subsequent seizure of vehicles accordingly G unlawful.

Headnote : Kopnota

A police captain obtained an authorisation from a station commissioner under s 13(8) of the South African Police Service Act 68 of 1995, giving him authority to set up checkpoints at 'Libode taxi ranks, scrap yards and mechanical workshops'. He then proceeded to a certain workshop where he H found two vehicles whose engine numbers and other identification features appeared to have been tampered with. The officer and his colleagues seized these vehicles and removed them to the local police station. The appellant, the owner of these vehicles, subsequently applied for the seizure to be declared unlawful and for the vehicles to be returned to her; she relied in her application on the remedy provided by the mandament van spolie, I contending that the vehicles had been unlawfully seized from her peaceful and undisturbed possession. The respondents argued, on the other hand, that the seizure was not unlawful, since it had taken place under the provisions of s 13(8) of the Act. The application was dismissed. On appeal to the full bench three issues arose. The first related to the validity of the authorisation: the appellant submitted that scrap yards and mechanical J workshops were not public places as envisaged by s 13(8), and that the

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authorisation was invalid because it was couched in general and ambiguous A terms, and did not describe the relevant places with the requisite degree of precision. Secondly, it was submitted that the checkpoints had not been set up as required by s 13(8), and that this had rendered the search and seizure unlawful. The third issue related to the relief to which the appellant would be entitled should it be found that the seizure had been unlawful. B

Held, that it was common cause that s 13(8) restricted the setting-up of checkpoints to public places. However, the Act did not define what a 'public place' was. The meaning to be attributed to the phrase was to be derived from the context in which it was used, which included the purpose sought to be achieved and the mischief sought to be prevented. Another consideration was the impact of the legislation on fundamental rights - where it C made inroads into the constitutional rights of the individual it was to be interpreted restrictively. The question in casu was whether a private business such as a mechanical workshop, from which the public could be excluded by the owner, must be treated as a public place on the basis that the public could and did have access to it. There was nothing in the phrase 'public place' that indicated that it should be given an extended meaning so D as to include a place to which the owner could deny anyone access. Our common law placed a restrictive meaning on the phrase by limiting it to places which served the interests of the broader public, such as public open spaces and public roads and rights of way. (Paragraphs [14] - [17] at 383i - 385e.)

Held, further, that the purpose of the subsection was clearly to facilitate the E prevention of crime and the maintenance of law and order. It was a relevant consideration that it gave a commissioner power to authorise actions that infringed upon the constitutional rights of individuals. The setting-up of a checkpoint clearly affected the individual's right to freedom of movement and privacy, and it might also adversely affect the interests of a business owner. Accordingly, the subsection should be interpreted in a manner that F would prevent unnecessary and excessive interference with such rights and interests. To limit the meaning of the phrase 'public place' to those places where members of the public had a right to go would not frustrate the objects of the Act. (Paragraphs [19] - [21] at 385h - 386g.)

Held, further, that an authorisation issued in terms of the Act must describe the place(s) where checkpoints were to be set up with sufficient particularity. G Simply to refer to 'scrap yards and mechanical workshops' was not sufficient, and left it open to the officer executing the authorisation to decide which businesses in the relevant district fell within the definition of a scrap yard or a mechanical workshop. Accordingly, to the extent that the commissioner had authorised the setting-up of checkpoints at privately owned businesses, and since it was couched in terms which were H too general, the authorisation was invalid. (Paragraphs [24] and [25] at 387e - f and 387g.)

Held, further, that para (e) of ss (8) contemplated the display, setting-up or erection of a barrier, sign or object that would reasonably bring to the attention of a person approaching the checkpoint the order to stop. Simply to enter the specified premises and search all the vehicles found there, as the I captain had done, could by no stretch of the imagination constitute the setting-up of a barrier as envisaged by para (e). This had a bearing on the validity of the search and seizure of the vehicles. Paragraph (a) of ss (8) empowered the commissioner to authorise the setting-up of a roadblock or checkpoint; this, in turn, authorised a police officer to set up the roadblock or checkpoint in accordance with the manner prescribed. Once this had J

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A been done, a police officer was then entitled to search a vehicle or person approaching the roadblock or checkpoint without a warrant. In other words, the commissioner's authorisation did not itself constitute a search warrant; the power to search and seize arose from, and was subject to, the setting-up of a roadblock or checkpoint. (Paragraphs [26] and [29] at 388b - d and 389a - c.)

B Held, further, that the danger of misuse of authority in the exercise of the powers conferred by s 13(8) must be recognised. For this reason, and because it made serious inroads into individual rights, the subsection was to be interpreted restrictively. This also conformed with the notion that, where a party opposing an application for a mandament van spolie relied on a statutory provision as entitling him or her to deprive a possessor of property, C such statutory provision must be restrictively interpreted. It was clear that the captain had simply, on the strength of the authorisation, conducted a search of the workshop and seized the vehicles. In effect, he had used the power to set up a checkpoint for some purpose other than that for which it was intended. The search and the subsequent seizure of the vehicles had accordingly been unlawful. (Paragraphs [30] and [31] at 389d - e and D 389f - h.)

Held, further, regarding the relief to which the appellant was entitled, that, in terms of s 68(6) of the National Road Traffic Act 93 of 1996, no person could, without lawful cause, be in possession of a vehicle of which the engine or chassis number had been altered or defaced. The respondents contended that this meant that the appellant could not lawfully possess the E vehicles in question, and that, consequently, they could not be returned to her. However, the lawfulness of the applicant's possession of the vehicles was irrelevant in these proceedings. The mandament van spolie was a summary remedy aimed at restoring her possession of the vehicles, and it was not open to the respondents to raise the illegality of that possession as a defence. The possession of the spoliatus must first be restored before the F merits of the case could be considered. (Paragraphs [32] - [35] at 389h - 391c.)

Held, further, as to the respondents' contention that the mandament van spolie was not in keeping with a 'modern regulated state' and that seized items...