THE
HIGH COURT OF SWAZILAND
MDUDUZI
BRIAN QWABE Applicant
And
THE
COMMISSIONER OF POLICE 1st Respondent
THE
ATTORNEY GENERAL 2nd Respondent
Civil
Case No. 1251/2004
Coram
S.B. MAPHALALA – J
For
the Applicant MR. J. MAVUSO
For
the Respondents MISS H. NDZIMANDZE
JUDGMENT
(21/07/2004)
This
is an application brought under a certificate of urgency and in which
the following relief is prayed for:
2
"a)
Dispensing with the rules of the above Honourable Court and hearing
this matter as a matter of urgency;
Directing
the 1st Respondent to release to Applicant the under-mentioned motor
vehicle:
1
x VW Golf Sedan 1990 model bearing registration number SD 157 XH
engine number HY0835G0, chassis number AAV222172K4020430.
Costs
of suit in the event the application is opposed.
Further
and/or alternative relief.
The
founding affidavit of the Applicant is filed in support thereto.
Confirmatory affidavits of one Solomon Nhlengethwa and Nelisiwe Qwabe
are also filed. Annexure "A" being a letter of agreement
between the Applicant and one Michael Zulu is also filed.
The
Respondents opposed the application and the answering affidavit of
3249 Detective Sergeant Jabulani Thwala is filed.
The
Applicant avers that he bought the vehicle from one Michael Zulu
sometime on or about September 2003, as evidenced by annexure "A"
being the agreement of sale between him and the said Michael Zulu. He
intended to register the vehicle under his wife's name and to that
end he proceeded with his wife to the Royal Swaziland Police
Headquarters, at Siteki where they were granted a Police Clearance
Certificate (annexure "B"). For one reason or another the
process of registering the vehicle into his wife's name was not
finalized.
Sometime
on or bout the 21st April 2004, he gave Solomon Nhlengethwa his
vehicle to drive. He had requested the vehicle because he was making
funeral arrangements for a relative of his who had passed away.
Whilst driving the vehicle, he was stopped by the Mbabane Police and
was told to drive the vehicle to Mbabane Police Station as they
suspected the vehicle was a stolen vehicle. The vehicle has since
been detained by the police.
The
defence put forth by the Respondents is that the Applicant's motor
vehicle was seized and detained in terms of Section 4 (b) of the
Theft of Motor Vehicle Act, 16 of 1991. Upon examination by Detective
Inspector G.E, de Jager who is based at South
3
African
Police Service attached to the Vehicle Identification Section, it was
found that the engine and chassis numbers on the vehicle have been
tampered with and job tag was not found on the vehicle. In terms of
Section 4 (b) of the Act a motor vehicle that has its engine and
chassis numbers tampered with is presumed to be stolen until proved
otherwise.
The
argument advanced in support of the application is two-fold. Firstly,
that the results as contained in annexure "BD2" fall far
too short of proving that the vehicle has been tampered with, in
terms of the Motor Vehicle Act in that the qualifications and
experience of Detective de Jager has not been set out in the papers
and as such, he cannot be treated as an expert witness. Secondly, in
the result, Detective de Jager fails to set out the original
identification status of the vehicle. He only makes allegations
without supporting them with reasons.
It
was argued for the Commissioner of Police firstly, that the motor
vehicle was seized on reasonable suspicion that it was stolen thus
making it necessary to conduct investigations in terms of Section 16
of the Act. Secondly, that the Applicant has failed to prove his
ownership of the said motor vehicle in terms of Section 4 read with
Section 16 (4) of the Act. Where a person is presumed to have
committed an offence in terms of Section 3, the onus is on him to
rebut that presumption by proving ownership or lawful possession of
the motor vehicle. In this regard the Respondents concede that the
letter of agreement purports to be a document of ownership, but they
argue that in light of the apparent tampering on the motor vehicle
that document or alleged ownership becomes doubtful. For this
proposition the court was referred to the cases of Zwakele Nkumane vs
The Commissioner of Police and another - Case No, 899/2003 and that
of Bright Zondo vs The Commissioner of Police and another - Court of
Appeal No. 36/2002.
On
the results of tests carried out on the motor vehicle, it is the
contention by Respondents that the South African Police Vehicle
Experts proved that the motor vehicle does not presently bear its
original and true identification marks as a result of the alterations
done on the vehicle its true identity could not be established.
4
On
the issue of the opinion of expert witnesses it was argued for
Respondents that it is not necessary to call an expert witness for
making findings on a motor vehicle that it has been tampered with.
The court was referred to L.H. Hoffmann and D. T. Zeffert, The South
African Law of Evidence (4th ed) at page 97 on the weight to be
attached to the documentary evidence of Detective de Jager.
Before
court are three issues for determination viz i) proof of ownership of
the vehicle, ii) the effect of the evidence of Detective Inspector de
Jager and iii) whether there were "reasonable grounds to
suspect" that the vehicle was stolen.
I
shall proceed to address these questions ad seriatum, thus: i) Proof
of ownership of the motor vehicle.
Any
person who applies for the release of a motor vehicle seized in terms
of the Act will be successful if he can meet the requirements of the
provisions of Section 16 (4) of the Act, which reads as follows:
"Any
person who has evidence of ownership of lawful possession of a motor
vehicle seized or detained under this Act may apply to court at any
time within six months of the seizure with a view to securing the
release of the motor vehicle".
In
the present case it is not in dispute that the Applicant has launched
this application timeously. With regard to the element of ownership
or lawful possession, the Applicant relies on annexure "A"
being an agreement of sale between himself and one Michael Zulu. The
Respondents accept that the letter of agreement purports to be a
document of ownership, but in light of the apparent tampering on the
motor vehicle that document or alleged ownership becomes doubtful. It
would appear to me this position is correct that the tampering on the
motor vehicle cast a shadow on the nature of the ownership and calls
for investigations to be carried out to establish the true origins of
the motor vehicle. For this view I have sought refuge in the cases of
Zwakele Nkumane vs The Commissioner of Police and another (supra) and
the Court of Appeal vs The Commissioner of Police and another
(supra).
5
ii) The effect of the evidence of Detective Inspector de Jager.
The
evidence of officer de Jager is found in annexure BD2 being a police
report compiled by the said officer after he had examined the said
motor vehicle on the 17th May 2004. The officer stated under item 1.5
on the engine number that "the original number has been grinded
off and current engine number HV083500 restamped on the block".
Under item 1.6 on stamped chassis number, he wrote: "The panel
on which the original vin number has been stamped on has been cut out
and rejoined (sic) said panel belongs to an old model Volkswagen
Golf. The chassis number on the said panel has been altered by means
of welding. The original colour of the panel is yellow". The
officer made other observations of tampering in item 1.7, 1.8 and 1.9
of the report. The officer concluded that the vehicle is suspected
stolen.
The
Applicant has urged the court not to attach much weight on this
evidence in that it has not been shown ex facie the report what
qualifications and level of experience the officer possesses.
It
would appear to me that in casu there is direct evidence of
observation by the officer who concluded that the vehicle is
suspected to be stolen. His rank as it appears on the report is that
he is an Inspector attached to a specialized unit in South Africa
which deals with stolen motor vehicles. In this regard I find that
what is said by the writers Hoffmann et, A1 The South African Law of
Evidence (supra) at page 97 apposite. They stated the following:
"The
opinion of expert witnesses is admissible whenever, by reason of
their special knowledge and skill, they are better qualified to draw
inferences than the judicial officers. There are some subjects upon
which the court is usually quite incapable of forming an opinion
unassisted, and others upon which it could come to some sort of
independent conclusion, but the help of an expert would be useful".
I
further agree with the submission made by Miss Ndzimandze for the
Respondents that in fact it is not necessary to call an expert
witness to making findings on a motor vehicle that has been tampered
with. The issue of the motor vehicle being tampered with is a fact,
in the present case.
6
In
conclusion therefore under this Head I find that the evidence of
Inspector de Jager has proved conclusively that the motor vehicle was
tampered with to attract the operation of the Theft of Motor Vehicle
Act,
On
the third issue viz iii) whether there were "reasonable grounds
to suspect" that the vehicle was stolen on the facts of the case
I find that there were. The Hhohho magistrate Court would not have
issued a detention order on the 11th May 2004, if the evidence before
the Magistrate fell short of satisfying the requirements of Section
16 of the Act.
In
the result, I find that the Applicant has failed to prove his case
for the relief sought. Costs to follow the event.
S.B.MAPHALALA
JUDGE
