Van der Merwe and Another v Taylor NO and Others

• Jurisdiction: South Africa
• Citation: 2008 (1) SA 1 (CC)

Van der Merwe and Another v Taylor NO and Others
2008 (1) SA 1 (CC)

2008 (1) SA p1

Citation	2008 (1) SA 1 (CC)
Case No	Case No CCT45/06
Court	Constitutional Court
Judge	Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, Nkabinde J, Sachs J, O'Regan J, Van Der Westhuizen J, Yacoob J, Kondile AJ and Van Heerden AJ
Heard	November 21, 2006
Judgment	September 14, 2007
Counsel	PB Hodes SC (with A Katz) for the applicants; A de V La Grange SC for the respondents

Flynote : Sleutelwoorde B

Criminal procedure — Search and seizure — Seizure — Seizure by police in terms of s 20 of Criminal Procedure Act 51 of 1977 (CPA) — Application for vindication of seized C article — Applicant arrested and charged with contravention of Exchange Control Regulations — Foreign currency in his possession seized — Ownership established — Rei vindicatio — Whether applicant entitled to return of currency — CPA, s 31(1)(a).

Headnote : Kopnota

Upon leaving South Africa from the Cape Town International Airport on an international flight bound for the United Kingdom, the first D applicant (applicant) was found to be in possession of foreign currency without the necessary authorisation and arrested and charged with contravention of the Exchange Control Regulations. All of the foreign currency was seized by the police under s 20 of the Criminal Procedure Act 51 of 1977. It appeared that the applicant had purchased the currency out of funds standing to the credit of his bank account on E behalf of the tour group with which he was set to travel overseas. Part of the currency, he had purchased for himself and the balance for the remaining members of the group. The applicant launched an urgent application in the High Court for the return of the currency and for an order granting him permission to travel overseas with the currency. He claimed that he and the second applicant were the owners of the F currency and that the seizure was unlawful as the currency had been in an amount less than the permissible amount he was entitled to possess and take out of the country. The High Court dismissed the application. On appeal to the full bench of the High Court, the court found that the applicant was not the owner of the currency and that the seizure had not been unlawful, and accordingly confirmed the decision to dismiss the G

2008 (1) SA p2

application. It failed to deal with the alternative contention by the applicants that they owned at least that part of the currency he A had purchased for himself.

Held (per Moseneke DCJ and Nkabinde J for the majority), that the applicant had established his ownership of that part of the currency he bought for himself and the full bench erred in finding otherwise. (Paragraph [119] at 43D - E.) B

Held, further, that the applicant had not established ownership of the balance of the currency seized, and that it followed that the applicants were not entitled to restoration of the balance of the currency seized. However, the question remained whether the police were entitled to continue holding that part of the currency that did belong to the applicant. (Paragraph [131] at 46F - 47A.) C

Held, further, that once ownership had been established the respondents had to prove the basis on which they claimed to be entitled to retain possession of that amount as against the first applicant, the owner. The respondents could not withhold the foreign currency unless they had a right of retention. (Paragraph [132] at 47B.)

Held, further, that lawful seizure under s 20 of the Criminal Procedure Act did not mean that continued possession of the D currency would forever be lawful. Section 31(1)(a) made it plain that the currency could be possessed only if criminal proceedings were instituted and the currency was required in those proceedings. If the currency was not so required, s 31(1)(a) stated that it had to be returned to a person who could lawfully possess it. (Paragraph [133] at 47C - D.) E

Held, further, that it was unlikely that the respondents would have known at the time when the present action was instituted whether criminal proceedings would be instituted at all, let alone whether the currency would be required. The respondents had therefore demonstrated that, at the time the proceedings were instituted, their possession of the currency was justified under s 20 of the Act. (Paragraph [135] at 48C - D.) F

Held, accordingly, that the application for leave to appeal had to be granted and the appeal dismissed. (Paragraph [138] at 48G - H.)

Cases Considered

Annotations

Reported cases G

Southern African cases

AAA Investments (Pty) Ltd v Micro Finance Regulatory Council and Another 2007 (1) SA 343 (CC) (2006 (11) BCLR 1255): referred to

Action Engineering and Fencing (Pty) Ltd v Moyses NO and Others 2004 (5) SA 399 (T) ([2003] 3 All SA 263): referred to H

Amod v Multilateral Motor Vehicle Accidents Fund 1998 (4) SA 753 (CC) (1998 (10) BCLR 1207): referred to

Bank Windhoek v Rajie en 'n Ander 1994 (1) SA 115 (SCA): referred to

Beyers v McKenzie (1880) Foord 125: referred to

Booi v Minister of Safety and Security and Another 1995 (2) SACR 465 (O): distinguished I

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (2001 (10) BCLR 995): referred to

Chetty v Naidoo 1974 (3) SA 13 (A): dictum at 20A applied

Chong Sun Wood Products Pte Ltd v K & T Trading Ltd and Another 2001 (2) SA 651 (D): referred to J

2008 (1) SA p3

Commissioner of Customs and Excise v Randles, Brothers & Hudson Ltd 1941 AD 369: dictum at 411 applied A

Concor Construction (Cape) (Pty) Ltd v Santambank Ltd 1993 (3) SA 930 (A): referred to

De Freitas and Another v Society of Advocates of Natal (Natal Law Society Intervening) 1998 (11) BCLR 1345 (CC): referred to

DF Scott (EP) (Pty) Ltd v Golden Valley Supermarket 2002 (6) SA 297 (SCA) ([2002] 3 All SA 1): referred B to

Dookie v Minister of Law and Order and Others 1991 (2) SACR 153 (D): referred to

Dreyer and Another NNO v AXZS Industries (Pty) Ltd 2006 (5) SA 548 (SCA) ([2006] 3 All SA 219): dictum in para [4] applied

Ex parte Smith 1956 (1) SA 252 (SR): referred to C

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) (1998 (12) BCLR 1458): referred to

First National Bank of SA Ltd t/a Wesbank v Commissioner, South African Revenue Service and Another; First National Bank of SA Ltd t/a Wesbank v Minister of Finance 2002 (4) SA 768 (CC) (2002 (7) BCLR 702): referred to D

Gien v Gien 1979 (2) SA 1113 (T): referred to

Gleneagles Farm Dairy v Schoombee 1949 (1) SA 830 (A): referred to

Goolam v Krishnadu 1957 (3) SA 215 (O): referred to

Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd 1993 (1) SA 77 (A): referred to E

Graham v Ridley 1931 TPD 476: referred to

Heavy Transport and Plant Hire (Pty) Ltd and Others v Minister of Transport Affairs and Others; South North Haulage (Pty) Ltd and Another v South African Transport Services 1985 (2) SA 597 (W): referred to

Jeena v Minister of Lands 1955 (2) SA 380 (A): referred to

Kemp v Roper NO (1886) 2 Buch AC 141: referred to F

Khan v Volschenk 1986 (3) SA 84 (A): dictum at 88E applied

Khuzwayo v Dludla [2000] 4 All SA 329 (LCC): dictum at 334E applied

Klerck NO v Van Zyl and Maritz NNO and Another and Related Cases 1989 (4) SA 263 (SE): referred to

Kleudgen & Co v Trustees in Insolvent Estate of Rabie (1880) Foord 63: referred to G

Krugersdorp Town Council v Fortuin 1965 (2) SA 335 (T): dictum at 336A - 337B applied

MacDonald Ltd v Radin NO and The Potchefstroom Dairies & Industries Co Ltd 1915 AD 454: referred to

Mehlape v Minister of Safety and Security 1996 (4) SA 133 (W) ([1996] 2 All SA 424): applied H

Mkontwana v Nelson Mandela Metropolitan Municipality and Another; Bisset and Others v Buffalo City Municipality and Others; Transfer Rights Action Campaign and Others v MEC, Local Government and Housing, Gauteng, and Others (KwaZulu-Natal Law Society and Msunduzi Municipality as Amici Curiae) 2005 (1) SA 530 (CC) (2005 (2) BCLR 150): referred to I

Mlombo v Fourie 1964 (3) SA 350 (T): referred to

Mohamed and Another v President of the Republic of South Africa and Others 2001 (3) SA 893 (CC) (2001 (2) SACR 66; 2001 (7) BCLR 685): referred to

Motloung v Rokhoeane 1991 (1) SA 708 (W): dictum at 716G - H applied

Municipality of Plettenberg Bay v Van Dyk & Co Inc 2004 (2) BCLR 109 (CC): referred to J

2008 (1) SA p4

Mvusi v Mvusi NO and Others 1995 (4) SA 994 (Tk): referred to A

Myaka v Havemann and Another 1948 (3) SA 457 (A): referred to

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC) (2000 (1) BCLR 39): referred to

National Education Health and Allied Workers Union v University of Cape Town and Others 2003 (3) SA 1 (CC) (2003 (2) BCLR 154): referred to

Ndlovu v Ngcobo; Bekker and Another v Jika 2003 (1) SA 113 (SCA) ([2002] 4 All SA 384): dictum in para B [46] applied

Ntoyakhe v Minister of Safety and Security and Others 2000 (1) SA 257 (E) (1999 (2) SACR 349): referred to

Philip Robinson Motors (Pty) Ltd v NM Dada (Pty) Ltd 1975 (2) SA 420 (A): referred to C

Phillips and Others v National Director of Public Prosecutions 2006 (1) SA 505 (CC) (2006 (2) BCLR 274): referred to

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A): dictum at 634E - I applied

President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059): referred to D

Radio Pretoria v Chairperson, Independent Communications Authority of South Africa, and Another 2005 (4) SA 319 (CC) (2005 (3) BCLR 231): referred to

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