Worali v Minister of Safety and Security
| Jurisdiction | South Africa |
| Judge | Erasmus J, Schoeman J and Nxulamo AJ |
| Judgment Date | 21 September 2007 |
| Docket Number | 1087/2005 |
| Court | Transkei Division |
| Hearing Date | 21 September 2007 |
| Citation | 2008 JDR 0764 (Tk) |
Schoeman J
[1] This is a judgment on appeal. Members of the South African Police Service seized the appellant's motor vehicle because they averred that the chassis and engine numbers had been tampered with. The appellant brought a spoliation application for the return of the motor vehicle; this was opposed on the basis that the vehicle had been seized after the cordoning off of the Elliotdale taxi rank had been authorised in terms of the provisions of s 13(7) of the South African Police Service Act, 86 of 1995 ("the Act") and therefore the seizure was lawful. The appellant then widened the scope of his attack, amended the notice of motion, joined the third respondent who issued the authority in terms of which
2008 JDR 0764 p2
Schoeman J
the vehicle was seized and asked for an order setting aside the authorisation certificate issued in terms of s 13 of the Act. The third respondent thereafter filed a further set of affidavits to which the appellant replied.
[2] The matter was disposed of in the Court a quo on the basis that the appellant should have dealt with this aspect in his founding affidavit and dismissed the application without dealing with the merits of the matter. The Court a quo granted leave to appeal to the Full Bench. The respondents do not support the judgment of the court a quo, but support the order on different grounds.
[3] The following facts are common cause or not really disputed.
The appellant's vehicle was seized by members of the South African Police Service while driven by an employee of the appellant;
The seizure was effected by virtue of a document headed "AUTHORITY TO CORDON OFF" ("the certificate") which was issued, on the face of it, by the Provincial Commissioner: SAPS Eastern Cape and signed by X C Ntantiso, the third respondent, in terms of s 13(7) of the Act;
The certificate authorised the cordoning off of "the Elliotdale taxi ranks on the 16th and 17th of August 2005 (09:00 – 17:00) with the object of restoration of Public order/restoration of safety and security / seizure of unlicensed firearms."
The authority instructed every member executing a search in terms of s13(7)(c) to exhibit a copy of the authorisation to every affected person.
2008 JDR 0764 p3
Schoeman J
Members of the police searched the vehicle of the appellant but the search of the interior of the vehicle yielded "nothing". They thereafter opened the bonnet of the vehicle with the view to inspect the engine compartment thereof.
The driver of the vehicle was arrested and the vehicle seized.
[4] The following facts are disputed:
Whether the members of the South Africa Police Service informed the driver of the vehicle that there were irregularities with the chassis and engine numbers of the vehicle;
Whether the chassis and engine numbers have been altered or defaced;
Whether the third respondent was the acting Provincial Commissioner at the time he allegedly issued the certificate of authorisation; and
Whether facts were placed before him before he decided to issue the authorisation for the cordoning off.
[5] It is appellant's case that he is entitled to the relief because-
the Court a quo misdirected itself in ruling that the application be dismissed because the applicant did not make out a case in the founding affidavit.
the certificate issued was invalid as
circumstances did not justify the issuing of the certificate; and
the certificate was not regularly issued in terms of the enabling legislation; and
2008 JDR 0764 p4
Schoeman J
if found that the certificate was valid and issued regularly that
the certificate was not executed regularly as the respondents went outside the ambit of the authorisation when opening the bonnet of the vehicle and inspecting the chassis and engine numbers of the vehicle and furthermore that there was nothing wrong with the chassis and engine numbers of the said vehicle.
THE RATIO FOR THE DISMISSAL OF THE APPLICATION IN THE COURT A QUO.
[6] The appellant and respondents are ad idem that the reasoning of the Court a quo was not correct in finding that the appellant was not entitled to the relief as he did not disclose his cause of action in the founding affidavit. The attitude of the respondents is a bit surprising as it was an argument advanced by the respondents in their further affidavit and persisted with during argument in the Court a quo.
[7] The practice of the Courts is that an applicant must, generally speaking, stand or fall by his founding affidavit and the facts alleged therein and that he cannot introduce for the first time in his replying affidavit facts or circumstances upon which he seeks to found a new cause of action.
[8] There are occasions when the Court should and will allow an applicant to introduce additional facts or grounds for relief in his replying affidavit, even
2008 JDR 0764 p5
Schoeman J
though that might necessitate the admission of further affidavits. As OGILVIE THOMPSON, J.A., pointed out in James Brown and Hamer (Pty.) Ltd . v. Simmons, N.O. [1] the general rules of practice in regard to such matters do not require that they 'must always be rigidly applied: some flexibility, controlled by the presiding Judge exercising his discretion in relation to the facts of the case before him, must necessarily also be permitted.'
[9] In deciding whether to permit additional facts in the replying affidavit there must be a distinction between a case where the applicant knew of the facts at the time of his founding affidavit, and the case in which facts alleged in the respondent's answering affidavit reveal the existence or possible existence of a further ground for the relief sought by the applicant. In the latter type of case, of under which the instant matter resorts, the Court will more readily allow an applicant in his replying affidavit to utilise and enlarge upon what has been revealed by the respondent and to set up such additional ground for relief as might arise therefrom.
[10] The appellant properly made out a case in his founding affidavit for a mandament van spolie. The respondents had to justify their seizure of the vehicle and raised the certificate as justification. The appellant was entitled to attack the validity of the certificate and the proper execution thereof in the replying affidavit. The appellant further obtained an order for leave to amend his notice of motion to include the attack on the validity of the certificate and the third respondent filed a
2008 JDR 0764 p6
Schoeman J
further affidavit. There was clearly no prejudice to the respondents in the way the application proceeded.
[11] In this instance the respondents suffered no embarrassment as they filed further affidavits and the issue raised in the replying affidavit was properly ventilated.
[12] The appeal is successful in respect of this aspect and therefore it is appropriate to consider the other arguments advanced on behalf of the parties on the merits of the matter.
THE MERITS
[13] In an unreported judgment of the Supreme Court of Appeal [2] Heher JA said the following about the approach when there are disputes of fact (as in the instant matter) and the way to approach such disputes in motion proceedings.
"[12] Recognising that the truth almost always lies beyond mere linguistic determination the courts have said that an applicant who seeks final relief on motion must in the event of conflict, accept the version set up by his opponent unless the latter's allegations are, in the opinion of the court, not such as to raise a real, genuine or bona fide dispute of fact or are so far-fetched or clearly untenable that the court is justified in rejecting them merely on the papers: Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-635C. See also the analysis by Davis J in Ripoll-Dausa v Middleton NO 2005 (3) SA 141 (C) at 151A-153C with which I respectfully agree. (I do not overlook that a reference to evidence in circumstances discussed in the authorities may be appropriate.)
2008 JDR 0764 p7
Schoeman J
[13] A real, genuine and bona fide dispute of fact can exist only where the court is satisfied that the party who purports to raise the dispute has in his affidavit seriously and unambiguously addressed the fact said to be disputed. There will of course be instances where a bare denial meets the requirement because there is no other way...
To continue reading
Request your trial