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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’ HEADS OF ARGUMENT
INTRODUCTION
It is common cause that during February 2010 the police seized a motor vehicle bearing registration letters and numbers BTR 190EC from possession of the
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Applicant pending criminal investigations about the ownership of the vehicle.
On 1 June 2010 the Applicant instituted mandament van spolie proceedings in the Court of first instance for an order declaring the seizure of the vehicle by the police unlawful and an order for the return thereof to the Applicant.
The Court of first instance declared the seizure unlawful but declined to direct the police to return the vehicle to the Applicant. Instead, in paragraph 2 of the judgment the Court of first instance declared the retention of the vehicle by the police lawful “… until such time the police clearance certificate is issued and the vehicle reregistered under the National Road Traffic Act, 93 of 1996”.
Thereafter, the Applicant appealed to the Supreme Court of Appeal against the part of the judgment of the Court of first instance declaring the retention of the vehicle by the police lawful until the Applicant had obtained a clearance certificate from the police. The appeal was dismissed with costs. He is now applying to this Court for leave to appeal.
Although no answering affidavits have been filed on behalf of the Respondents, they are nevertheless opposing the application and the contemplated appeal.
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1.
1.1 The issue is whether the Applicant is entitled to possession of the vehicle notwithstanding the fact that such possession is expressly prohibited by the provisions of section 68(6)(b) of the National Road Traffic Act (No. 93 of 1996). On the one hand, the Applicant contends that it was the duty of the Courts of first and second instances to develop the mandament van spolie “… so as to promote the spirit, purport and objectives of sections 10, 11 and 25(1)” of the Constitution.1
1.2 Conversely, the Respondents contend that the seizure of a vehicle by police based on the commission of a criminal offence (i.e. contravention of the provisions of section 68(6)(b) of Act No. 93 of 1996) cannot violate any constitutional rights of the Applicant.
2.
2.1 The investigating officer has deposed to an affidavit explaining that the vehicle is no longer in custody of the police. Therefore, there is no lis
1 See paragraphs 55 to 61 (inclusive) of the Applicant’s founding affidavit)
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anymore between the parties. The application is now academic because the relief sought by the Applicant in this Honourable Court (i.e. the return of the vehicle to him) has since fallen away. On 18 July 2013 the police handed over the vehicle to the Applicant.2 When the Applicant prepared his Statement of Facts on 23 August 2013, he knew very well that it was not correct (as contended by him in paragraph 11 of the Statement of Facts) that the vehicle is still in possession of the police.3
2.2 Therefore, the application and contemplated appeal should be dismissed with costs.
ARGUMENT
1.
1.1 Even if the police had not returned the vehicle to the Applicant or he is disputing any receipt of the vehicle, we respectfully submit that the entire application and contemplated appeal are, with respect, legally inept. The provisions of section 68(6)(b) of the National Road Traffic Act (No. 93 of 1996) do not interfere with the ownership rights of the Applicant to his vehicle. Instead, the legislation simply regulates
2 See explanatory affidavit of Constable Nomsitheli Dungelo, especially the Annexures thereto.
3 See the Applicant’s Statement of Facts at pages 74 - 79
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possession and use of the vehicle by the Applicant. The mandament van spolie remedy, being a common law remedy, cannot supplant a legislation dealing with a specific matter i.e. the National Road Traffic Act which was passed by the legislature to prevent the mischief of possession of vehicles with defective or irregular features.
1.2 A Court cannot authorise a criminal conduct i.e. possession of a vehicle with irregularities. This has been stated on a number of occasions, including judgments of the Supreme Court of Appeal. It cannot compel a person to perform an illegality. 4
1.3 In Marvanic Development (Pty) Ltd & Another vs Minister of Safety and Security & Another (supra) (para. 8) Lewis JA writing for the majority stated:-
“It seems to me that the purpose of s68 is to prevent people, including owners of vehicles, being in possession of, and driving, vehicles that have been tampered with in the ways detailed in the
4 See Marvanic Development (Pty) Ltd & Another vs Minister of Safety and Security & Another 2007 (3) SA 159 (SCA); Pakule vs Minister of Safety and Security & Another; Tafeni vs Minister of Safety and Security & Another 2011 (2) SACR 358 (SCA); See also Basie Motors BK t/a Boulevard Motors vs Minister of Safety and Security (SCA Case No. 135/2005); (2006) ZASCA 35; 28 March 2006; ABSA Bank Ltd & Another vs Eksteen (SCA Case No. 81/2010);
(2011) ZASCA 40; 29 March 2011); Essop vs Abdullah 1988 (1) SA 424 (A) and City of Tshwane Metropolitan Municipality vs RPM Bricks (Pty) Ltd 2008 (3) SA 1 (SCA) para. 16.
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section. The section makes possession that might otherwise be lawful unlawful. At the time when the vehicles were seized, their possession was thus “without lawful cause” even if the appellants were also the owners. The fact that the vehicles are seized does not mean that their return would make their possession lawful”.
1.4 In the judgment of the Supreme Court of Appeal (relating to this matter) counsel for the Applicant (being the Appellant) placed heavy reliance on the judgment of the Supreme Court of Appeal in Ivanov vs North West Gambling Board5. The Court unanimously rejected this decision and concluded:-
“But on reflection I am convinced that the decision in Ivanov is wrong in so far as it held that the appellant in that case was entitled to unqualified restoration of possession of his spoliated gambling machines, even though his possession thereof constituted a contravention of the provisions of s9(1) of the National Gambling Act 7 of 2004 and a criminal offence under section 82 of that Act”.
5 2012 (6) SA 67 (SCA) paras. 18 - 19
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1.5 Profoundly, the Court went further to state:-
“(13) It is trite that the mandament van spolie has only two requirements: peaceful and undisturbed possession of property and the unlawful deprivation of such possession. It is also trite that the spoliated person must be restored to his or her former position before competing claims to title or to possession are considered and that in consequence lawful title to possession is not a requirement for success. The rule that goods dispossessed against the will of the possessor must be restored forthwith, however, is not an absolute one.
A legally admissible defence that might be raised against an application for a mandament van spolie is the one that was raised in Ivonav and also in the present matter, which is that restoration of possession is not possible because the possession thereof by the spoliated person would not only be unlawful but would in fact constitute a criminal offence.
(At para. 14 of the judgment) (Our emphasis)
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2.
2.1 We further respectfully submit that the reliance by the Applicant in the decisions in Yeko vs Qata 1973 (4) SA 735 (A) and Nino Bonino vs De Lange 1906 TS 120 is, with respect, erroneous. These decisions are distinguishable because in the present case the deprivation of the vehicle was based on the exercise of a public power flowing from a statute i.e. the National Road Traffic Act. The decisions simply regurgitate the ordinary common law principles of spoliation but are not a precedent for supplanting an existing legislation regulating a specific matter – possession or use of a vehicle in this case.
2.2 Significantly, in the Heads of Argument for the Applicant, counsel keeps on referring to the provisions of section 31 of the Criminal Procedure Act (No. 51 of 1977)6. It is the contention of the Applicant that the Courts of first and second instances conflated the principles of mandament van spolie with the provisions of section 31 of the Criminal Procedure Act, the latter providing the return of the vehicle to its lawful possessor if no criminal proceedings are instituted or after completion of such proceedings.
6 See Applicant’s Heads of Argument at paras. 30 and 31 thereof
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2.3 We respectfully submit that this argument is fundamentally flawed because no criminal proceedings were instituted regarding the vehicle in question since it was still the subject of an investigation.
Accordingly, it may please the Honourable Court to dismiss the application with costs, such costs to include cost for the engagement of two counsel.
Dated at SANDTON on this the 20th day of SEPTEMBER 2013.
____________________________
ADV. N.K. DUKADA SC RESPONDENTS’ COUNSEL
____________________________
ADV. M.M. MATYUMZA RESPONDENTS’ COUNSEL
OFFICE OF THE STATE ATTORNEY RESPONDENTS’ ATTORNEY
Broadcast House 94 Sisson Street MTHATHA
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Ref: 1058/10/A 6 C/o OFFICE OF THE STATE ATTORNEY 10th Floor, North State Building 95 Market Street JOHANNESBURG TO: REGISTRAR
CONSTITUTIONAL COURT BRAAMFONTEIN
AND TO: MVUSO NOTYESI INC.
APPLICANT’S ATTORNEYS
2nd Floor, T.H. Madala Chambers 14 Duheam Street
MTHATHA
C/o KWINANA & PARTNERS 119, 1st Avenue
FAIRLAND RANDBURG
