Acting on information received from a suspect in an unrelated matter, the South African Police Service (SAPS) in Mthatha seized the applicant’s motor vehicle. They then discovered that its chassis number had been tampered with and seemed to have been removed from another vehicle. The original engine number appeared to have been ground off and there was no engine number. A manufacturer’s tag plate had been removed from another vehicle and placed on the applicant’s vehicles. SAPS then kept the vehicle, without a search and seizure warrant. The applicant, Mr Ngqukumba approached the High Court for the return of the vehicle. Although the High Court found in Mr Ngqukumba’s favour, it refused to order the return of the vehicle on the basis that the applicant’s possession of the vehicle could constitute a criminal offence in terms of the National Road Traffic Act (The Traffic Act). On appeal before the Supreme Court of appeal – it held – on the basis of its previous decisions – that it was not competent to order the return of the vehicle to the applicant.
The applicant thus approached the Constitutional Court to appeal the lower court’s decision, namely whether section 68(6)(b) as read with section 89(1) of the Traffic Act precluded the return of the motor vehicle in accordance with the manadament van spolie remedy. The Constitutional Court found in favour of the applicant and ruled that his property should be returned to him.
The Constitutional Court found that although Section 68(6)(b) of the Traffic Act prohibits possession “without lawful cause” of a motor vehicle in which the engine or chassis number has been falsified or mutilated – and although Section 89(1) of the Traffic Act provides that any individual who contravenes provisions in the Traffic Act shall be guilty of an offence, the mandament van spolie is intended before all else, to restore unlawfully deprived property to the possessor. It is meant to prevent people from taking the law into their own hands in order to regain possession of their property. It is applicable to all persons, whether they be natural or juristic persons – including governmental bodies. In order for Courts to grant this remedy, all that is required is proof that the applicant was in possession of the object and that he or she was unlawfully deprived of possession of the object.
The importance of this decision is that it underscores the principle of legality in requiring organs of state to always act in accordance with the law. Given incidents which would suggest that the SAPS sometimes acts illegally, this judgment affirms that police have to act within the confines of the law, even where there are reasonable grounds to believe that a crime may have been committed. The Constitutional Court stated that “However, they, [the SAPS] like everyone else, are subject to the Constitution, in particular – for present purposes – the rule of law. A failure to hold them to the Constitution strictly may have negative consequences: it may encourage them to be a law unto themselves.”
Another important aspect of this decision is that it sets out the manner in which laws are to be interpreted. To the extent possible, legislation must be read in a manner that conforms with the common law. In the event that this is not possible, then statutes trump the common law. In this instance, section 68(6) and (b) and 89(1) of the Traffic Act, had to be read in a manner consistent with the mandament van spolie. This understanding of the interaction between statute law and common law promotes the spirit, purport and objects of the Bill of Rights as section 39(2) of the Constitution demands.
It is also important to note that this judgment guarantees the enjoyment of the right to property (since possession is an incident of ownership) in a manner that is consistent with section 25 of the Constitution, the property clause, in so far as no one may be arbitrarily deprived of property.
The judgment further explains that interpreting the two sections in the manner outlined above does not undermine effective policing but rather, requires the SAPS to act in accordance with both the Criminal Procedure Act and the Constitution. The strict need for police officials to comply with search warrant requirements is because this affects the rights to privacy and dignity of all citizens. Although the SAPS play an important role in combating crime and enforcing the law, they are also subject to the Constitution. Interpreting section 68(6)(b) and 89(1) in a manner that precludes the mandament van spolie might well contribute to a culture of impunity amongst the police and is accordingly unconstitutional.
By Phephelaphi Dube: Legal Officer; Centre for Constitutional Rights
[Photo credit: GovernmentZA / Foter / CC BY-ND]
