IN
THE HIGH COURT OF SWAZILAND
Civ.
Case No. 360/94
In
the matter between:
MFANUZOTHINI
MNGOMEZULU Applicant
And
THE
ATTORNEY GENERAL Respondent
CORAM :
Hull, CJ.
FOR
APPLICANT Mr. L. Mamba
FOR
RESPONDENT
Judgment
(14/10/41/
This
is an application for the return of a motor vehicle.
The
vehicle, then in the possession of the applicant here, was seized
without a warrant by a detective constable in the Royal Swaziland
Police Force on an unspecified date in May 1991 on suspicion that it
had been stolen. It has since been detained in the physical custody
of the police.
On
11th October 1991, another detective constable applied to the
Principal Magistrate at Mbabane for an order to pursue and finalise
investigation of its suspected theft.
2
It
is not clear from the document produced to me whether that
application was made on notice to the present applicant, i.e. the
person from whom the vehicle was seized. The document is an
affidavit, in a standard form for use according to its tenor in
applications to detain motor vehicles that are suspected to have been
stolen. The affidavit refers to the present applicant, describing him
as the respondent on that occasion. It also refers to an attached
notice of application. None is attached. The learned Principal
Magistrate endorsed his decision at the end of the affidavit itself.
It
says shortly:
"On
11/10/91,
"Above
order granted until 11/1/92.
"Principal
Magistrate."
There
is uncontested evidence that does indicate strongly that - at some
point of time - the vehicle had been stolen. On examination, it was
found that the original engine and chassis numbers had been removed
and new false numbers inserted.
The
evidence for the applicant here is that he purchased a Mazda motor
vehicle from one Solomon Ngomane. He has annexed to his founding
affidavit a document that, according to its tenor, was issued in the
Orange Free State to Solomon Ngomane. It is described on its face as
a "certificate of issue of document or token" under section
177 of the Road Traffic Ordinance 1966. No very clear explanation has
been proffered by either side as to just what this is. As far as I
can see, it appears to confirm that a "registration certificate
and motor vehicle licence/clearance certificate" were issued to
Mr. Ngomane in January 1991 in respect of a Mazda motor vehicle. The
specified chassis number is the same as that now appearing on the
vehicle detained by the police here. The engine number is also the
same except that it has the figure "4" added to the number
observed by the police on the vehicle itself. In a line entitled
"Date of expiry", the document specifies a number which is
the registration number of
3
the
vehicle that the police have detained and the applicant claims.
The
applicant however has never been charged with the theft of the
vehicle, though the detective constable who seized it has deposed
that the applicant failed to produce documents showing that he owns
or is in lawful possession of it, or an agreement to purchase it and
that, accordingly, the police continued to detain it under the Theft
of Motor Vehicles Act 1991 (Act No. 16 of 1991.)
At
the time when the police seized this vehicle, that Act had not come
into force. When the Principal Magistrate made his order on 11th
October 1991, it had still not come into force. Section 23 of the
Act, which contains transitional provisions whereby a vehicle
suspected to have been stolen, which was seized and detained by the
police for not less than six months because the person lawfully
entitled to it could not be traced or was unknown, was forfeited to
the Crown after a specified time after the commencement of the Act,
has not been demonstrated to be applicable here. It has not been
shown that the vehicle was detained for at least six months before
the commencement of that Act.
Prior
to the commencement of the Act, the power to seize without a warrant
a motor vehicle suspected on reasonable grounds to have been stolen
was contained in section 47(1) of the Criminal Procedure and Evidence
Act 1938 (Act No. 67 of 1938). At the time of the seizure of the
vehicle in issue here, that power had to be exercised by a police
officer of or above the rank of sub-inspector, which was not done in
this case. The officer, under the terms of the section, was not
authorised specifically to detain it, but required to take it before
a magistrate. By virtue of section 52(1), he had to do so within such
time as was in all the circumstances reasonable.
Under
subsection (3) of that last section, the magistrate was then to cause
it to be detained in such custody as he directed, taking reasonable
care for its preservation until the conclusion of a summary trial or
of any investigation. Under subsection (5) as it formerly stood the
magistrate, if the Director of Public Prosecutions declined to
prosecute, was to direct it to be returned to the person from whose
possession it was taken.
4
These
provisions are substantially still in force. They have not been
repealed or amended directly by the Theft of Motor Vehicles Act 1991.
However, on the date on which that Act was assented to, the Criminal
Procedure and Evidence Amendment Act, 1991 (Act No. 14 of 1991) also
received the Royal Assent. Both Acts were published in the Gazette on
27th November 1991. By section 4 of the amending Act, the power of
seizure conferred by section 47 (1) of its principal Act was extended
to every police officer.
Section
52 was also amended by replacing subsection (5) with the following
subsection:
"(5)(a)
At the conclusion of a summary trial or if the Director of Public
Prosecutions declines to prosecute, the Magistrate shall, in respect
of the property or thing seized, make one of the following orders:-
"that
the property or thing be restored to the person from whom it was
seized if that person satisfies the Magistrate that he is the lawful
owner of the property or thing or that he is lawfully in possession
of the property or thing;
"if
that person fails to prove that he is the lawful owner or has lawful
possession of the property or thing, that the property or thing be
restored to any other person who is lawfully entitled to it upon
proof to the Court;
"f
no person claims ownership or possession of the property or thing or
if the person lawfully entitled to it cannot be traced or is
unknown, that the property or thing be forfeited to the Crown;
"(b)
the Court shall for the purposes of an order under paragraph (a) hear
such further evidence (whether by affidavit or orally) as it may
consider necessary."
5
There
is, as I say, clearly evidence that gives rise to a strong inference
that this vehicle was at some point of time stolen - namely, in the
tampering with the engine and chassis numbers. The applicant has not
been able to produce documentary evidence that shows clearly that he
himself nevertheless acquired it as a bona fide purchaser. The
document that he has produced does not demonstrate unequivocally that
Solomon Ngomane was the owner, or that he transferred it to the
applicant. It does on the other hand on its face disclose false
numbers.
In
themselves these things may give rise to suspicions even about the
applicant himself, but they do not show that he did not come into
possession of the vehicle lawfully. Mere suspicion cannot be equated
with guilty knowledge. It is of course possible for a genuine
purchaser to acquire a vehicle that has been stolen, and it is even
possible for him to do so without observing the formalities for the
transfer of the vehicle. A failure to do so does not necessarily mean
that he has knowingly acquired a stolen vehicle. The applicant has
never been charged with stealing this vehicle or receiving stolen
property. Nearly three and half years have passed since it was
seized. On a correct view of the evidence, I think that it must be
said that the authorities have declined to prosecute.
On
what basis therefore does the respondent claim to be entitled to
retain custody of this vehicle?
There
is no power at common law enabling the police lawfully to seize and
detain a motor vehicle in the circumstances in which they did so
here. At the times when it was seized and when the police went before
a magistrate, the matter was governed by the relevant provisions of
the Criminal Procedure and Evidence Act 1938 before its amendment in
late 1991.
The
seizure, by a detective constable, was not authorised under those
provisions at the time. The vehicle was not, in my view, brought
before a magistrate within a reasonable time.
The
1991 amending Act is not to be construed retrospectively.
6
However,
section 52(5)(a)(i) of the Criminal Procedure and Evidence Act 1938
as amended by this Act would apply, in my view, on and after the date
on which it came into effect, if the vehicle had been validly seized
in the first place, i.e. under section 47(1) as it was originally
worded. Despite the delay, it does appear that the police still had
the ownership of the vehicle under investigation in October 1991
because that was the basis on which they eventually went before the
Magistrate, and he purported to authorise its detention until January
1992. The problem, however, is that the vehicle was never seized in
accordance with law. the word "seized" in section52(5)(a)
(i) in my view must be taken to refer to a lawful seizure.
The
Theft of Motor Vehicles Act 1991 does not assist in any event the
respondent. The vehicle was not seized under that Act. The Act is not
to be construed as having retrospective effect. The transitional
provisions in it do not apply here. The Act does not contain
provisions authorising the police to simply to seize a vehicle that
is suspected of having been stolen, as distinct from seizing it in
the course of arresting a person suspected of having stolen it, or of
having received it knowing it to have been stolen. Nothing in that
Act (other than in the inapplicable transitional provisions) empowers
the police to continue to detain a vehicle seized lawfully, before
the commencement of the Act - still less a vehicle taken, prior to
the Act, otherwise than in accordance with law.
The
police have wide powers, under statute and especially under the Theft
of Motor Vehicles Act 1991, in respect of vehicles suspected to have
been stolen. It is well known that the theft of vehicles is very
prevalent and a matter of public concern in the region. Nevertheless
the police must act within the limits of the powers granted to them
and, where the personal liberty of an individual or property is
affected, the courts will construe those powers and the manner in
which they are exercised strictly.
The
applicant was the person who was in possession of the vehicle in 1991
when the police intervened. It has not been shown that he knew it was
a stolen vehicle. I will assume that the learned Principal Magistrate
did not make his order of 11th October 1991 without having
7
first
satisfied himself that the applicant here had due notice then of the
application by the police for its continued detention, so that he
could have opposed that application if he so desired. That was of
course an elementary prerequisite for the making of an order for the
detention of property taken from a person.
I
will also assume that the application by the police was made in the
proper way, namely by a notice of application or motion setting out
the order sought and supported by an affidavit, and also on its face
indicating that it was made on notice to the other party affected.
The document before me, however,does not show clearly that this was
so. It is unusual, to say the least, for a judicial officer to
endorse his decision on an affidavit. The formalities for preparing
and presenting applications are not merely technical. They are
intended (inter alia) to serve the practical purpose of ensuring that
the principles of natural justice are duly observed.
The
supporting affidavit in the police application, at the time when it
was made, was deficient in that it did not show that the power of
seizure had been exercised by a police officer authorised to do so
-namely an officer holding a rank not lower than that of
sub-inspector. In consequence of this omission, the Principal
Magistrate confirmed an unlawful seizure.
The
respondent has not shown any sufficient basis for resisting the
application now before me, but I wish to add, in passing in this
respect, that in any event on a proper view of the evidence, and
bearing in mind that no application has been made to cross-examine
the applicant, I think the correct conclusion to come to is that the
court should take the view that the applicant was in lawful
possession of the vehicle when it was seized from him.
There
will accordingly be orders as prayed in paragraphs (a) and (b) of the
present applicant's notice of application, i.e. for the return of the
motor vehicle to him and that the respondent is to pay his costs on
the application.
DAVID
HULL
CHIEF
JUSTICE
