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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO: CCT 87/13 SCA CASE NO.: 660/2012 THC CASE NO.: 1354/2010 In the matter between:-
ANELE NGQUKUMBA Applicant
and
THE MINISTER OF SAFETY AND SECURITY 1st Respondent
THE STATION COMMISSIONER, MTHATHA CENTRAL
POLICE STATION 2nd Respondent
COMMANDING OFFICER – VEHICLE SAFEGUARD UNIT:
GROUP 46, MTHATHA 3rd Respondent
RESPONDENTS’ EXPLANATORY AFFIDAVIT
I, the undersigned,
NOMSITHELI DUNGELO,
do hereby make oath and state:-
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1.
1.1 I am an adult female and a Constable in the South African Police Service attached to the Mthatha Vehicle Identification Section with offices situate at Group 46 in Ncise administrative area in the district of Mthatha.
1.2 I have been duly authorised by the Respondents to depose to this affidavit and bring to the attention of the Honourable Court that the vehicle which is the subject of these proceedings is no longer in custody of the police. I am advised by the legal representatives of the Respondents that this affidavit is important because it addresses the issues which are traversed by the Applicant in the application which is due to be heard by this Honourable Court on the 14 November 2013
2.
The facts deposed to herein are, unless the context otherwise indicates, within my personal knowledge and are, to the best of my knowledge and belief, true and correct.
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3.
I am aware about the litigation which has been instituted by the Applicant against the Respondents relating to a cream Toyota Hi-Ace, mini-bus, bearing registration letters and numbers PTR 190EC. I am advised by the legal representatives of the Respondents that the Court of first instance declared the seizure by police of the vehicle in question unlawful but it declined to order the return of the vehicle to the Applicant and, instead, granted the following order:-
“2. The retention of the same motor vehicle by the members of the South African Police Service in Mthatha is declared lawful until such time the police clearance certificate is issued and the vehicle reregistered under the National Road Traffic Act, 93 of 1996.”
4.
4.1 I should bring to the attention of the Honourable Court that the Applicant has to date failed to apply for a clearance certificate from the police as directed by the Court of first instance in paragraph 2 of its judgment delivered on 20 October 2011. In this regard, I wish to refer the Honourable Court to the judgment of the Court of first instance which forms part of the record from page 81 up to page 100 thereof.
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4.2 Instead of applying for a clearance certificate from the police, the Applicant as opted to indulge in this extravagant litigation.
5.
5.1 The vehicle in question was seized by the police during February 2010. I am advised by the legal representatives of the Respondents that it is not necessary to regurgitate in this affidavit the circumstances leading to the seizure of the vehicle because the facts relating thereto are now well known to the Court. On 23 April 2010 I was allocated an Inquiry Docket No. 33/04/2010 to investigate the ownership of the vehicle in question.
5.2 At the time I assumed the investigations, the vehicle had been impounded at Group 46 Police Pound with Reference No.
SAP13/88/2010. I then conducted a thorough inspection of the vehicle and confirmed the various irregularities which were found by my other colleagues in the vehicle.
5.3 These irregularities are set out more fully in the answering affidavit which was deposed to on behalf of the Respondents in the Court of the
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first instance. They are also repeated in the Applicant’s Statement of Facts which forms part of the record of these proceedings. The Statement of Facts appears from page 74 to page 79 of the record.
6.
6.1 I am advised by the legal representatives of the Respondents that on 6 August 2013 the Chief Justice issued directions for the parties to file an agreed statement of facts by 21 August 2013. This was done by the Applicant and subsequently the Respondents filed a Notice to Abide to the Applicant’s Statement of Facts. This notice forms part of the record of the present proceedings and appears from page 80 to 83 of the record.
6.2 It will be observed at page 11 of the Statement of Facts that the Applicant avers that “The motor vehicle is in the possession of the police”. This is not correct as will be set out more fully hereunder because on 18 July 2013 the police handed over the vehicle to the Applicant and there are official documents (referred to hereunder) in support of the official handing over of the vehicle to the Applicant.
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6.3 I wish to inform the Honourable Court that I have not been involved in this litigation since the inception of the matter in the Court of first instance. I first became involved when I was asked to attend a consultation with counsel for the Respondent on 18 September 2013 when counsel was concerned about the lapse of time since the seizure of the vehicle and he wanted to know about the latest progress in the pending criminal investigations.
7.
7.1 I am advised by the attorney acting on behalf of the Respondents, and verily believe, that on 9 September 2013 he briefed counsel to prepare Heads of Argument on behalf of the Respondents in preparation for hearing of the application for leave to appeal and the contemplated appeal on 14 November 2013.
7.2 I am further advised by the attorney that during preparation for the drafting of Heads of Argument on behalf of the Respondents, senior counsel advised the attorney to investigate the outcome, if any, of investigations relating to the vehicle in question. Thereafter, the attorney approached our offices for the necessary information. Senior
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counsel was concerned about the lapse of a period of more than three (3) years from the date of seizure of the vehicle (i.e. February 2010).
8.
On 18 September 2013 myself, Captain Kwanini (who is the Head of the Mthatha Vehicle Identification Section) and the attorney for the Respondents consulted with counsel. With regard to the issues discussed, I wish to state:-
8.1 During July 2013 the Police Pound at Group 46 was overcrowded by a number of vehicles which had been seized by police from various people. The situation became so desperate to an extent that the police had difficulty to manage the vehicles and ensure their safety whilst in the Pound.
8.2 It was resolved that all the vehicles, including the one in question, should be removed from Group 46 and placed at the Central Police Station in Mthatha where there are adequate measures and necessary equipment for surveillance and equipment to ensure the safety of the vehicles.
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8.3 It was also agreed that certain seized vehicles which were the subject of investigation but no one had been charged should be returned to the respective persons strictly for safekeeping pending the outcome of the investigations. This was a way of avoiding damage and/or theft of the vehicles which would result in costly litigation against the police.
8.4 On 18 July 2013 the police handed over the vehicle in question to the Applicant for safekeeping pending the outcome of the investigations.
I should bring to the attention of the Honourable Court that to date it has been difficult for the police to detect ownership of the vehicle because even a Toyota expert failed to identify the ownership of the vehicle despite use of advanced mechanical equipment.
8.5 I could not charge the Applicant with any criminal offence because his explanation about how he happened to acquire the vehicle. Even the person who allegedly sold the vehicle to the Applicant appears to be innocent and no prima facie case could be preferred against him.
I have resorted to my Commanding Officer for a final solution in the matter.
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8.6 I annex hereto, marked “ND 1” to “ND 5”, official documents indicating the handing over of the vehicle to the Applicant. In this regard, I wish to refer the Honourable Court to Annexure “ND 5” at sub-paragraph 6.1 where it is stated that on 18 July 2013 the vehicle was handed over to the Applicant and he duly signed to acknowledge receipt thereof. In the same document, Warrant Officer Taleni (who deposed to Annexure “ND 2”) signed under the name of the Applicant as a witness to the handing over of the vehicle to the Applicant.
9.
9.1 Therefore, the contention by the Applicant in his Statement of Facts that the vehicle in question is in possession of the police is in fact not correct, especially that the Statement was prepared on 23 August 2013 i.e. after the vehicle had already been officially handed over to the Applicant. I am advised by the legal representatives of the Respondents that in the present proceedings the Applicant is seeking an order for the return of the vehicle in question on the ground that the seizure thereof by the police was unconstitutional.
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9.2 I am further advised by the legal representatives of the Respondents that the application is now academic in the sense that the police are no longer in possession of the vehicle and it would be impracticable for them to comply with an order for the return of such vehicle to the Applicant in the event of the latter succeeding in the appeal.
9.3 It is on this basis that I have taken a responsible step to bring to the attention of the Honourable Court the present state of affairs regarding the vehicle in question. Counsel have been briefed to deal with the matter in accordance with the instructions set out in this affidavit.
___________________________
DEPONENT
The Deponent has acknowledged that he knows and understands the contents of this affidavit which was signed and sworn to before me at _____________________on this the _________day of SEPTEMBER 2013, the regulations contained in Government Notice No. 1258 of July 1972, as
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amended and Government Notice No. R1648 of 17 August 1977, as amended having been complied with.
____________________________
