HIGH COURT OF SWAZILAND
the matter between:
COMMISSIONER OF POLICE Respondent
the Applicant : Ms Hlatshwako
the Respondent : Ms D. Mamba
10th FEBRUARY, 2004
is an application in the long form for an Order releasing a motor
vehicle presently in the hands of the Respondent, to the Applicant.
The motor vehicle is described as a Toyota Corolla bearing engine
number A4L095553 and registration number KXR 613 G.P. The Applicant
also prays for the costs of the application.
his Founding Affidavit, the Applicant states that he is the owner of
the vehicle and that the said vehicle was confiscated by the Mbabane
Police on the 23rd March 2001 on the suspicion that it was stolen. At
the time of the seizure, the Applicant had no document pertaining to
the registration of the vehicle. It was on the 6th August 2001, that
he took the original certificate of registration of the vehicle, a
copy of which was annexed to the Application and marked "J.Z.
1". I will revert to its contents later.
is the Applicant's further contention that there is no justification
whatsoever for the Police to continue detaining the vehicle since it
is not stolen, an allegation that the Police have vigorously
to 2944 Detective Sergeant Sipho Justice Mabuza, of the Drug and Car
Theft Unit, and the investigating officer in this matter, after the
seizure of the vehicle on the 23rd March, 2001, the Applicant made a
statement in which he stated that he had purchased the vehicle from a
Mr Denn of the Republic of South Africa and that the seller Mr Denn
gave him a "duplicate blue book", promising to hand over
the original once the pretium had been paid in full. A copy of the
statement was annexed to the Answering Affidavit and the Applicant
never denied making it or the truthfulness of its contents. It can
reasonably be inferred in the circumstances, that the statement was
made by the Applicant freely and voluntarily.
Police also filed an affidavit of 04937244 Detective Sergeant
Mashinini of the South African Police Motor Vehicle Unit, stationed
at Oshoek Border Post. He testified that he examined the vehicle in
question on the 29th February 2001 according to annexure "AG 2".
This date cannot be correct regard had to the date of seizure. It is
conceivable that Sergeant Mashinini erred in relation to the date.
This does not however militate against the fact of the examination of
the vehicle and the results of the said examination.
Mashinini testifies further that his examination revealed that the
original identity of the motor vehicle had not been tampered with
and/or altered. He also discovered that the said vehicle had been
reported stolen from one Sakkie van Niekerk on the 6th October 2000
at Hillbrow under Case No. 372/10/00, a matter still pending.
law governing the seizure and release of motor vehicles is the Theft
of Motor Vehicle Act 16 of 1991. Section 16 (4) thereof provides the
person who has evidence of the ownership or 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 that motor vehicle. "
application was brought within the statutory period prescribed above.
The question to
decided is whether the Applicant has provided the Court with the
evidence of ownership.
do not mention lawful possession because in his founding affidavit,
the Applicant alleges that he is the owner.
his statement referred to earlier marked "AG 1", the
Applicant stated that a Mr Dernn sold the vehicle to him and that he
had a duplicate book from Mr Dernn. The registration document
relating to Mr Denn, whether original or duplicate, has not been
filed with this Court to lend any credence to the Applicant's story.
Instead, the Applicant filed a registration certificate pertaining to
the vehicle in question marked "JZ 1" and it is in the name
of Rammuki J.R. and not the Mr Denn referred to earlier.
is in my view no evidence plausible before Court that the Applicant
is the owner of the vehicle in question as the documents filed serve
to bring more confusion than to clarify the Applicant's case. The
vehicle is not registered in the Applicant's name nor in Mr Dernn's
name. Mr Rammuki's association with the vehicle has not be explained
by the Applicant, although he is not the registered owner according
to the documents filed of record by the Respondent.
are further insuperable difficulties in the Applicant's way. Section
16 (7) of the Act provides as follows: -
Court shall order the release of a motor vehicle seized under this
section to the person from whom it was seized only because the
Director of Public Prosecutions has declined to prosecute that person
or that person having been prosecuted has been acquitted of the
offence in connection with that motor vehicle, unless the release is
supported by documentary proof of ownership or lawful possession ".
(emphasis my own)
it is clear that the Applicant's case that he is the owner is not
supported by any documentary or other evidence, nor can it be said
that although he does not allege to be in lawful possession of the
vehicle, that the documentary evidence on record supports that
conclusion. The documents filed of record prove neither.
should also not lose sight of the results of the examination
conducted on vehicle by the Police. According to the Police, the
vehicle was reported stolen in Hillbrow. The name of
registered owner is given and so is the Case Number. This in my view
brings this case at least within the realms of the presumption of
theft provided for in Section 4(1) (a) of the Act. One cannot, on the
evidence, discount the contravention of Section 4 (1) (c) and (d) by
the Applicant as well. I may well add that the document of the
purchase of the motor vehicle required by the provisions of Section
7(1) has not been filed as it would go some way in supporting the
Applicant's story that he acquired this vehicle in a regular fashion.
case in my view is on all fours with BRIGHT ZONDO VS THE COMMISSIONER
OF POLICE AND ANOTHER APPEAL CASE NO.36/02 (Per Steyn J.A.), in which
a judgement from this Court was upheld by the Court of Appeal. The
facts are substantially similar.
is one point that was raised by Ms Hlatshwako that I need to advert
to. She argued that the Police no longer have a valid detention Order
and for that reason, the vehicle must be released to the Applicant.
Whilst it may be correct that at this stage there is no valid
detention Order, the vehicle can only be released to the Applicant if
he furnished the documentary evidence of ownership or lawful
possession. The absence of a detention Order does not dispense with
the requirements of Section 16 (4) and 16 (7).
should also not be lost of the fact that the Police cannot
continuously renew detention Orders ad infinitum, particularly as
here, where the results raised the presumption of theft. Furthermore,
the provision relating to the disposal of vehicles as provided in
Section 22 have to come into operation. Admittedly, there may be no
vigilance in enforcing the forfeiture provisions by the Police at
present. This point, in my view, ought to fail.
is yet another alternative argument raised by Ms Hlatshwayo. She
contended that the Court should, from the papers filed, at least find
that the Applicant is a bona-fide possessor of the vehicle and
therefor order that the vehicle be released to him. I had occasion to
deal with this very question in the case of BHEKISISA MDZINISO VS THE
COMMISSIONER OF POLICE AND ANOTHER CIV. CASE NO. 3132/00
(unreported). At page 8 of that judgement, I held as follows.
other issue that I must mention which Mr Dlamini did not pursue was
the allegation that the Applicant is a bona fide purchaser of the
vehicle and as such, his title to the vehicle is unimpeachable. This
is so at common law. My view however is that the provisions of the
Act have altered the common law and in cases where the vehicle is
suspected to have been stolen on reasonable grounds, it is no defence
to say that you are the bona fide purchaser of the same. To do so
would stultify the intention of the Legislature as it would allow
persons to remain in possession of vehicles otherwise proved to have
been stolen. The whole purpose of the Act would thus be defeated. "
reiterate the above views as applicable in this matter, I would add
that the circumstances in this matter are exacerbated by the fact
that the allegation of bona fide possession are bald. There is no
documentary or other evidence from which the conclusion that the
Applicant is a bona fide possessor can be drawn. As indicated
earlier, there is no document, as required by Section 7 (1); the
receipts in proof of payments made to Mr Denny are wanting and there
is not even an affidavit from Mr Denny confirming the Applicant's
story. It would be highly precipitous for the Court to rely on such
hollow and unsubstantiated allegations. For the avoidance of doubt,
even if these were filed, they would not assist the Applicant in view
of the effect of the Act on the common law as adverted to above.
am of the view that this legal point ought to be dismissed. I further
note that the allegation that the Applicant is a bona fide possessor
was not averred neither in the Founding nor in the Replying
view of the foregoing, I can come to no other conclusion than that
the Applicant has failed to meet the requirements of the Act. There
are no documents supporting the claim that he is the owner of the
vehicle nor the un alleged alternative that he is the lawful
possessor. This application be and is hereby dismissed with costs.
a cautionary note, applicants for the release of for motor vehicles
must fully canvass all the relevant allegations of ownership or
lawful possession, as the case may be, and must file ail the
supporting documents. It is fallacious to supply sketchy information
in the founding affidavit, resting on the forlorn hope that the
Police will not oppose the application. The
affidavit must be conscientiously drawn with the worst case scenario
in mind, failing which the Applicant may be forced to make out a case
in the Replying Affidavit, a course that is not permitted at law.