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IN
THE HIGH COURT OF SWAZILAND
CIV.
CASE NO. 3050/98
In
the matter between
GIYANI
DLAMINI
APPLICANT
And
THE
COMMISSIONER OF POLICE 1st RESPONDENT
THE
ATTORNEY GENERAL 2nd RESPONDENT
Coram
S.B. MAPHALALA - J
For
Applicant ADVOCATE THWALA
(Instructed
by Maphalala & Co)
For
Respondents ATTORNEY GENERAL
JUDGMENT
(18/04/2000)
Maphalala
J:
The
matter was brought by way of motion in the long form for an order
directing the first respondent to restore the applicant possession of
a motor vehicle, a Nissan Skyline, Registration No. SD 257 LM
directing first respondent to pay costs of this application and
further and or alternative relief.
The
application is in the nature of spoliation where the applicant
alleges that at all material times and in particular on or about the
25th August 1998, he was wrongfully deprived of possession of the
motor vehicle by police officers based at Manzini Regional
Headquarters on suspicion that it was stolen. At the time the motor
vehicle was taken it was parked at KaKhoza location in the custody of
one Sibusiso Dlamini, who was taking care of it because it had some
mechanical faults. The applicant further alleges that the manner in
which it was kept at the Police Regional Headquarters in Manzini will
expose it to rust and serious internal damage resulting in its
depreciation as it is parked in an open yard. The seizure is unlawful
and the continued detention of the motor vehicle is wrongful and
without any lawful justification.
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The
respondent opposes this application and they have taken the view that
they deny that applicant was in lawful possession of the motor
vehicle. The motor vehicle was seized in order to conduct
investigations because the police suspected it to be a stolen motor
vehicle. Respondents went further to reveal in their answering
affidavit the results of their investigations. It was established at
the Central Motor Registry that the motor vehicle no. SD 257 LM is
registered under the name of one Dumsile P. Nsibandze. Further the
model, type, engine number and chassis number all do not correspond
with those of the car claimed by applicant. On further investigations
the police found that a Nissan Skyline registered SD 257 LM is a 1988
model grey in colour and whose engine number is incomplete and
chassis number removed.
Essentially,
the respondent take the view that the motor vehicle was seized in
terms of the Theft of Motor Vehicle Act No. 16 of 1991.
The
matter then came for arguments. Advocate Thwala for the applicant
argued strenuously that there is no doubt that the applicant was in
possession of the motor vehicle and that he was dispossessed by the
first respondent on the pretext that the vehicle in question was
stolen and in doing so the first respondent wrongfully relied on the
Theft of Motor Vehicle Act. The Act does not permit the police to go
about detaining the vehicles of the citizens if they do not at the
same time institute criminal proceeding under that the Act such that
the fate of the vehicle is determined by the court at the end of a
criminal trial. In the present case no criminal proceedings have been
instituted to justify the suspicion that the vehicle is stolen. The
vehicle as a result is wrongfully and unlawfully in the hands of the
police. Mr. Thwala went at great length to outline the law applicable
in spoliation proceedings. I am not going to repeat his submissions,
as most of his arguments on points of law in this area of the law are
trite.
On
the other hand it was argued on behalf of the respondents that
applicant relies on the common law. That in the present case a
statute is applicable and it supersedes the common law position. The
motor vehicle was seized in terms of Section 4 of the Theft of Motor
Vehicle Act No. 16 of 1991 read with Section 16 of the said Act.
Section
4 (1) create a presumption that unless the contrary is proved by him,
a person shall be presumed to have committed an offence under Section
3 and on conviction, punished accordingly if:
".........(a) He
is found in possession of a motor vehicle which is reasonably
suspected
to be stolen (my emphasis);
(b) ...........................................
(c) ...........................................
(d) ..........................................
Further
Section 16 (1) empowers any police officer to search and arrest
without a warrant any person found in possession of a motor vehicle
if he has reasonable grounds to suspect that person has stolen that
motor vehicle or has received that motor vehicle knowing it to be
stolen or has assisted in the stealing of that motor vehicle and
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shall
seize from that person the motor vehicle and any document in relation
to that motor vehicle.
These
are the issues before me. Before proceeding to determine them I wish
to state that a week after hearing arguments in this matter and
judgement reserved it came to the court's notice that certain motor
vehicle kept at Lobamba Police Station under the Act were burnt by a
fire whose origin was a mystery. In view of this development and I
requested the representative from government to ascertain whether the
motor vehicle which is the subject matter of this case was one of
those burnt in this inferno. I was motivated to make this enquiry
following the dicta Potgieter vs Davel 1966 (3) S.A. 555 (o) where it
was propounded that in circumstances where it is objectively
impossible to restore possession of the spoliated thing the mandament
cannot be instituted and the claimant will have to look for other
remedies. Although the courts differ as to when restoration is
actually impossible, the weight of authority supports the view that
mandament van spolie will not succeed where the spoliated thing is
destroyed, materially damaged or alienated to a bona fide third
party.
I
was later informed by the parties that the motor vehicle was burnt
together with the others kept there. I put it to counsel that it seem
to me to be moot to proceed and determine the issue of spoliation but
was persuaded by defence counsel to proceed more particularly to deal
with the powers of the police in terms of the Act.
I
now proceed to determine the issue. It is trite law that if the
applicant succeeds in proving peaceful and undisturbed possession at
the time of deprivation and that the respondent committed an act of
spoliation, the court will summarily restore the status quo ante and
will do that as a preliminary to any investigation into the
respective rights of the parties prior to the act of spoliation. (See
Nino Bonino vs Delance 1906 T.S. 122 at 125). It appears to me from
the reading of the Theft of Motor Vehicle Act No. 16 of 1991 that the
respondent had the power to seize and detain the motor vehicle at the
material time in terms of Section 4 (a) (1) read with Section 16 (1)
of the. Act. It is a clear principle of law that no spoliation is
committed where a person is lawfully deprived of his possession. The
respondent can justify his dispossession of the applicant by statute
to dispossess the applicant.
However,
when these powers are exercised through a statute as they do in the
case in casu these powers must be exercised strictly within the
narrow limits laid down in the relevant statute. Statutory enactments
which allow exceptional and radical changes in possessory relations
without recourse to a court order are interpreted restrictively by
the courts. (see Globe Advertising Co. vs Town Council of
Johannesburg 1902 T.H. 186).
It
is clear to me from the facts of this case that the remedy under
mandament van spoile cannot maintain in the present case.
I
wish to observe, however, that the police cannot detain peoples
possessions ad infinitum the Act spells it out clearly what is to be
done upon seizure of a motor vehicle. Section 16 (3) reads:
"A
person arrested or a motor vehicle seized under the Act shall within
a reasonable time not exceeding seventy-two hours be brought before a
court by any officer of a rank of Sergeant or above for purpose of
obtaining a warrant for further detention of that motor vehicle".
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This
was not done in this case. The applicant may in law sue for damages
in a proper action.
For
present purposes the application sought on the papers as they stand
fails with costs.
S.B.
MAPHALALA
JUDGE
