COURT OF SWAZILAND
CASE NO. 1811/03
the matter between:
COMMISSIONER OF POLICE 1st RESPONDENT
ATTORNEY GENERAL 2ND RESPONDENT
APPLICANT S.V. MDLADLA
RESPONDENT ATTORNEY GENERAL
this application the applicant seeks an order in the following terms:
the rules pertaining to service and time limits be dispensed with and
that this matter enrolled as one of urgency.
the respondent be ordered forthwith to return to applicant the
vehicle fully described hereunder:
NO: 4 JB 3666022
NO: ADMTFR 55 DFM 833970
NO: PJM 298 GP
a rule nisi do hereby issue returnable on a date to be stated by the
court why prayer 2 should not be made final.
of the application in the event it is opposed.
and/or alternative relief.
applicant has filed a founding affidavit in support of the
application. The respondent has filed an answering affidavit in which
to the founding affidavit the applicant proceeded to South Africa
where he purchased the above-mentioned motor vehicle. The motor
vehicle was cleared by the South African Police in terms of the law -
per Annexure 'A' of the application. Also annexed with the
application is the registration documents of the motor vehicle
obtained by the applicant where he bought the motor vehicle.
7th July 2003 whilst respondent was at home police came and
confiscated the motor vehicle. It has been in the hands of the police
respondent submits that the applicant is not the registered owner of
the motor vehicle. The registration document reflects one SHILALUKE
ST with identity 6303275381087 as the registered owner.
further contends that the applicant has failed to produce any
declaration or certificate stamped by a Custom officer as per the
Theft of Motor Vehicle Act 16/1991. The respondent states that the
motor vehicle was seized in accordance with Act 16/ 1991.
avers that the motor vehicle is held on the strength of a lawful
detention order. He states that the detention order was obtained on
7th July, 2003 and is valid for three months.
replication applicant's attorney has filed a replication on points of
law. Annexed with the affidavit there is Annexure 'A', a declaration
by the owner of the motor vehicle which states as follows:
gave a car m/v Isuzu KB 280 DT Blue in colour. Registration PJM 288
GP. It is in his possession in Swaziland with its papers to Mr. Senzo
declaration was made on 31st July 2003 by the owner of the car Mr.
SIKHETHO THOMAS SHILALUKE OF BRAKPAN. REPUBLIC OF SOUTH AFRICA. It
was commissioned at Brakpan Police Station.
the foregoing documents it is clear that the motor vehicle described
in the Notice of Motion was indeed in the lawful possession of the
applicant when taken from him.
it is disputed whether this motor vehicle is the one which was
detained by the police. The identity of the motor vehicle confiscated
police does not answer the description of this motor vehicle as
reflected on the Notice of Motion. This therefore, creates a dispute
as to the identity of the motor vehicle in question.
dispute cannot be resolved on application. The court therefore,
orders that viva voce evidence be led. At this stage the court will
not make any pronouncement as to costs.