|Case No.||Lower Court Judgments||Hearing Date|
|CCT 71/13||Eastern Cape High Court, 20 Oct. 2011
SCA, 31 May 2013
|14 Nov. 2013|
By Duncan Wild
In this case the appellant’s motor vehicle was seized by the police acting under the Criminal Procedure Act 51 of 1977 (“the Criminal Procedure Act“). After the vehicle was seized the police discovered that it did not comply with the National Road Traffic Act 93 of 1996 (“the National Road Traffic Act“). The High Court and Supreme Court of Appeal found that the vehicle had been seized unlawfully, but that as it would be unlawful for the appellant to be in possession of a vehicle that did not comply with the National Road Traffic Act, the court not order the return of the vehicle, until it complied with the law. The question before the Constitutional Court is whether it is correct, that despite an unlawful seizure of vehicle, the vehicle may not be returned to its owner if it is discovered that possession of the vehicle would be unlawful.
In this case, vehicle in question, a Toyota Hi-Ace, being used as a taxi, was seized by the police acting under sections 20 and 22 of the Criminal Procedure Act, in the belief it was stolen.
On examination, the police claim they discovered that the chassis number, tag plate and engine number had been tampered with and appeared to be false. The possession of a vehicle with chassis number that has been falsified or tampered with in unlawful under section 68(6)(b) of the National Road Traffic Act.
When the owner of the vehicle, Anele Ngqukumba, brought an application for the return of the vehicle, the police resisted on the basis that the possession of the vehicle would be unlawful, and the police could not return it. The High Court found that the appellant had met the requirements for the return of the vehicle, but that it’s possession was unlawful and the Court could endorse an illegality by ordering the return of the vehicle, pending the vehicle being cleared by the police for compliance with the National Road Traffic Act. The SCA endorsed the position held the High Court.
In the Constitutional Court, the appellant has argued that refusing to order the return of the vehicle amounts to allowing (and encouraging) the police “to take the law into their own hands” by unlawfully seizing property in the hope they will find a reason to refuse to return the vehicle.
Also, the respondents have filed an affidavit with the Constitutional Court that in the time between the High Court judgment in 2011 and the appeal in the Constitutional Court the vehicle in question was returned to the appellant, because the police did not have sufficient evidence to charge the Mr Ngqukumba with any crime. The respondents therefore argue that the point is now moot, and the case should be dismissed. The appellant argues that the Constitutional Court should nevertheless decide the case because the general question is an important one and should be decided in order to regulate the police’s action in similar cases in the future.