THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No:  660/12
Reportable
In the matter between:

ANELE NGQUKUMBA

APPELLANT

and

MINISTER OF SAFETY & SECURITY

FIRST RESPONDENT
THE STATION COMMISSIONER, MTHATHA

SECOND RESPONDENT
CENTRAL POLICE STATION
COMMANDING OFFICER ─ VEHICLE SAFE

THIRD RESPONDENT
GUARD UNIT ─ GROUP 46, MTHATHA

Neutral citation:
Ngqukumba v Minister of Safety & Security (660/12) [2013]
ZASCA 89 (31 May 2013).

Coram:
Brand, Maya, Theron and Petse JJA and Meyer AJA
Heard:
16 May 2013
Delivered:
31 May 2013

Summary:
Search and seizure ─ seizure of motor vehicle by police in terms of
ss 20 and 22 of the Criminal Procedure Act 51 of 1977 despite being unlawful not
entitling person dispossessed to restoration if possession would be without
lawful cause as contemplated in s 68(6)(b) of the National Road Traffic Act 93 of
1996. Costs ─ substantial success ─ appellant not achieving substantial success
warranting a favourable costs order.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from:   Eastern Cape High Court, Mthatha (Pakade ADJP sitting as
court of first instance):
The appeal is dismissed with costs such costs to include the costs of two
counsel.
________________________________________________________________

JUDGMENT
________________________________________________________________

PETSE JA (Brand, Maya, Theron JJA and Meyer AJA concurring):

[1] More than a century ago, Innes CJ stated in Nino Bonino v De Lange1
that:
‘It is a fundamental principle that no man is allowed to take the law into his own hands;
no one is permitted to dispossess another forcibly or wrongfully and against his consent
of the possession of property, whether movable or immovable. If he does so, the Court
will summarily restore the status quo ante, and will do that as a preliminary to any
enquiry or investigation into the merits of the dispute.’

[2] The issue that confronted the learned Chief Justice in Nino Benino arises
in this appeal although it has another dimension to it. It concerns the question as
to whether the declaration of unlawfulness of the seizure of the appellant’s motor
vehicle by the police ─ acting under ss 20 and 22 of the Criminal Procedure Act
51 of 1977 (CPA) ─ entitled the appellant to the summary restoration of his
vehicle when his consequent possession of the vehicle would have been without
lawful cause ─ and thus an offence ─ as contemplated in s 68(6)(b) of the
National Road Traffic Act 93 of 1996 (the Act). The Eastern Cape High Court,
Mthatha (Pakade ADJP) held that the appellant was not entitled to restoration.

1 Nino Bonino v De Lange 1906 TS 120 at 122.

[3] Accordingly the high court, whilst declaring the seizure unlawful and
setting it aside nonetheless did not order restoration to the appellant. Instead it
authorised the police to retain the vehicle in their possession subject to the
appellant complying with the provisions of the Act. It also ordered each party to
pay its own costs. It subsequently granted the appellant leave to appeal to this
court.

[4] The issue for determination arises against the following backdrop. The
appellant, Mr Anele Ngqukumba, is a taxi operator in the district of Mthatha,
Eastern Cape Province. During February 2010 Ngqukumba’s motor vehicle, a
Toyota Hi-Ace parked at the Golden Egg Taxi Rank, Mthatha, whilst in the
possession of his employee, was seized by members of the South African Police
Service, who suspected it to have been stolen. Convinced that the police had no
lawful basis to seize the motor vehicle in the first place, Ngqukumba applied to
the high court for an order, inter alia, declaring the search, seizure and continued
detention of his motor vehicle unlawful and for the restoration of its possession to
him.

[5] The respondents resisted the grant of the relief sought by the appellant on
several grounds. They asserted that the police inspection of the motor vehicle
revealed that: (a) its chassis plate had been tampered with and appeared to have
been removed from another motor vehicle and superimposed on the appellant’s
motor vehicle; (b) the vehicle’s original engine number had been ground off; and
(c) the manufacturer’s tag plate appeared to have been removed from another
motor vehicle and later superimposed on the appellant’s motor vehicle. The
consequence of these discoveries, so asserted the respondents, was that no one
may lawfully possess the motor vehicle. In his replying affidavit, Ngqukumba
disputed that the police inspection of his motor vehicle yielded the outcome
claimed by the respondents.

[6] There was a dispute of fact in relation to the question whether the
appellant’s motor vehicle’s engine and chassis numbers had been tampered
with. But, these being motion proceedings, this dispute must be determined on
the basis of the Plascon-Evans 2 principle. And there was no suggestion that the
respondents’ version is far-fetched or otherwise untenable.

[7] As I have said, the high court found that the seizure of the motor vehicle
was unlawful. The respondents have not appealed against this finding. Despite
this finding the high court nonetheless declined to order the release of the motor
vehicle to the appellant. It considered that the provisions of ss 68(6)(b) and 89(3)
of the Act precluded it from doing so. It relied on judgments3 of this court, which it
correctly recognised as binding on it, in reaching that conclusion. Accordingly,
the central issue on appeal is whether it should have ordered restoration of the
motor vehicle to the appellant.

[8] There is a steadily growing body of case law4 in which the import of
ss 68(6)(b) and 89(3) of the Act is explained. In Pakule and Tafeni5 this court
said the following (para 26):
‘On the assumption, however, that there were no grounds for a reasonable belief that the
vehicles were concerned in the commission of an offence (that is, that there was no
compliance with s 20) [of the CPA], we see no reason why, when the vehicle is in the
possession of the police, and they ascertain that there are indeed such grounds for a
reasonable belief that the item is concerned in the commission of an offence — such as
the tampering with engine and chassis numbers — they should then not seize the

2 See: Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-I,
where it was stated that where factual disputes in motion proceedings arise, relief may only be
granted if the facts averred in the applicant’s affidavit that have been admitted by the respondent,
together with the facts alleged by the respondent, justify the order sought; President of the
Republic of South Africa & others v M & G Media Ltd 2011 (2) SA 1 (SCA) paras 13-14.
3 Marvanic Development (Pty) Ltd & another v Minister of Safety & Security & another 2007 (3)
SA 159 (SCA); Pakule v Minister of Safety & Security & another; Tafeni v Minister of Safety &
Security & another 2011 (2) SACR 358 (SCA).
4 Id. See also: Basie Motors BK t/a Boulevard Motors v Minister of Safety & Security (SCA case
no 135/2005; [2006] ZASCA 35; 28 March 2006); Absa Bank Ltd & Another v Eksteen (SCA case
no 81/2010; [2011] ZASCA 40; 29 March 2011).
5 Footnote 3.

vehicle lawfully. If that were not so, and they returned the vehicles to the alleged owners,
they would be acting in contravention of the National Road Traffic Act. The police cannot
lawfully release the vehicle to the owner or possessor: an order by a court that a vehicle
be returned would defeat the provisions of the latter Act.’

[9] Section 68(6)(b) of the Act provides:
‘(6)
No person shall─
. . .
(b)
without lawful cause be in possession of a motor vehicle of which the engine or
chassis number has been falsified, replaced, altered, defaced, mutilated, or to which
anything has been added, or from which anything has been removed, or has been
tampered with in any other way.’
Section 89(3) of the Act in turn provides that a contravention of s 68(6)(b)
constitutes an offence for which the accused is, on conviction, liable to a fine or
imprisonment for a period not exceeding three years.

[10] There is also the judgment of this court in Marvanic.6 There the appellants
had sought the return of two motor vehicles that had been seized by the police
on the ground that they had been stolen. The appellants’ case was founded on s
31(1)(a) of the CPA following the withdrawal of the charges of fraud and
possession of stolen property laid against the appellants. The claim was
unsuccessful because this court found that s 68(6)(b) of the Act precluded
possession of motor vehicles whose registration and chassis numbers had been
tampered with. Lewis JA writing for the majority stated (para 8):
‘[I]t seems to me that the purpose of s 68 is to prevent people, including owners of
vehicles, being in possession of, and driving, vehicles that have been tampered with in
the ways detailed in the section. The section makes possession that might otherwise be
lawful unlawful. At the time when the vehicles were seized, their possession was thus
“without lawful cause” even if the appellants were also the owners. The fact that the
vehicles are seized does not mean that their return would make their possession lawful.’

6 Footnote 3.

[11] This theme was taken further in Basie Motors BK t/a Boulevard Motors v
Minister of Safety & Security7 in which Mpati DP stated (para 16):
‘[P]ossession of a vehicle where there has been tampering with its engine or chassis
number is forbidden: the National Road Traffic Act does not confer authority on anyone
to allow it.’ (My emphasis.)
There is yet another judgment of this court in Absa Bank & another v Eksteen8 in
which it was held that where a purchaser shows that the eviction (in breach of the
warranty against eviction) is unassailable the fact that the purchaser might later
acquire the right to possession is immaterial. There the motor vehicle that the
respondent had purchased from the appellant revealed evidence that its original
identification numbers had been tampered with. Accordingly, this court held that
on ‘the authority of Marvanic the series of purchasers were indeed not capable of
resisting the eviction.’

[12] Unsurprisingly, counsel for the respondents relied on this line of cases in
support of the judgment of the court a quo. Counsel for the appellant, on the
other hand, placed much store in the judgment of this court in Ivanov v North
West Gambling Board.9 But on reflection I am convinced that the decision in
Ivanov is wrong in so far as it held that the appellant in that case was entitled to
unqualified restoration of possession of his spoliated gambling machines, even
though his possession thereof constituted a contravention of the provisions of s
9(1) of the National Gambling Act 7 of 2004 and a criminal offence under s 82 of
that Act.

[13] It is trite that the mandament van spolie has only two requirements:
peaceful and undisturbed possession of property and the unlawful deprivation of
such possession.  It is also trite that the spoliated person must be restored to his
or her former position before competing claims to title or to possession are
considered and that in consequence lawful title to possession is not a

7 Footnote 4.
8 Absa Bank Ltd & another v Eksteen (SCA case no 81/2010; [2011] ZASCA 40; 29 March 2011
para 12).
9 Ivanov v North West Gambling Board 2012 (6) SA 67 (SCA) paras 18-19.

requirement for sucess. The rule that goods dispossessed against the will of the
possessor must be restored forthwith, however, is not an absolute one.  A legally
admissible defence that might be raised against an application for a mandament
van spolie is the one that was raised in Ivanov and also in the present matter,
which is that restoration of possession is not possible10 because the possession
thereof by the spoliated person would not only be unlawful but would in fact
constitute a criminal offence.

[14] It is not the requirements of the mandament van spolie that were in issue
in Ivanov, nor are they any longer in issue in this appeal.  There are also no
competing claims to possession of the vehicle in question by the respondents.
The provisions of s 68(6)(b) of the Act prohibit the appellant from being in
possession of the vehicle which he might otherwise lawfully possess. In terms of
s 89(3) of that Act, contravention of s 68(6) amounts to a criminal offence
rendering an accused liable on conviction to a fine or imprisonment not
exceeding a period of three years. As was said by Mpati DP in Basie Motors11
‘… possession of a vehicle where there has been tampering with its engine or chassis
number is forbidden:  the National Road Traffic Act does not confer authority on anyone
to allow it.’
and, I venture to add, least of all the courts of this country.

[15] The appellant’s possession of the vehicle for now - until such time as a
police clearance is issued and the vehicle is registered in accordance with the
provisions of the Act - will thus be unlawful according to the criminal law.12  The
police cannot lawfully release the vehicle to the appellant, whether he is the
owner or erstwhile lawful possessor thereof. An order by a court that it be done
will be no different than ordering a person to be restored in the possession of his
or her heroin or machine gun which he or she may not lawfully possess. In fact,
when counsel for the appellant was invited in argument to distinguish this case

10  CG van der Merwe Sakereg 2de Uitgawe (1989) 133-137.
11  Footnote 4 para 16.
12  Minister van Wet en Orde v Erasmus & ‘n ander 1992 (3) SA 819 (A) at 822F-824D.

from a claim by the former possessor of heroin, he was unable to do so.  To my
mind , that finally illustrates why the Ivanov approach cannot be sustained.

[16] In my view, therefore, the principle enunciated in the cases discussed in
Pakule and Tafeni applies with equal force to a spoliation claim as it does to a
claim under s 31 of the CPA. If this court were to direct that possession of the
vehicle be restored to the appellant, it would be ‘lending its imprimatur to an
illegality’.13 Consequently, were this court to grant the relief sought, it would be
party to allowing ‘a state of affairs prohibited by law in the public interest’.14 As
Innes CJ pointed out in Hoisain v Town Clerk, Wynberg 1916 AD 236 at 240
'It is sought to compel the Town Clerk to place the applicant's name upon the statutory
list; he can only do that upon the grant of a certificate by the Council, which that body
has definitely refused to give. Such a certificate is not in truth in existence. So that the
Court is asked to compel the Town Clerk to do something which the Statute does not
allow him to do; in other words we are asked to force him to commit an illegality.’
In Essop v Abdullah 1988 (1) SA 424 (A), this court restated the principle that no
court will compel a person to perform an illegality. The relief sought by the
appellant, namely possession of the vehicle, would have the result of compelling
the police to commit an illegality.15 That a court should and cannot do. In these
circumstances, the appellant is not entitled to spoliatory relief.16

[17] I now turn to the question of the costs. The necessity for this is largely
occasioned by the fact that the high court, whilst finding that the seizure of the
appellant’s motor vehicle was unlawful and setting it aside, declined to order the
release of the motor vehicle to the appellant. It did so because, as I have already
said, it considered that such an order was precluded by virtue of s 68(6)(b) read
with s 89(1), (2) and (3) of the Act. Consequently, it ordered ‘each party to pay its
own costs’.

13 Per Ponnan JA in Hubbard v Cool Ideas 1186 CC (SCA case no 311/12; [2013] ZASCA 71;
28 May 2013).
14 Id para 11.
15 See also City of Tshwane Metropolitan Municipality v RPM Bricks (Pty) Ltd 2008 (3) SA 1
(SCA) para 16.
16 See also Zulu v Minister of Works, KwaZulu, & others 1992 (1) SA 181 (D) at 186D.

[18] Although the high court did not furnish reasons for its costs order it may
reasonably be inferred that it considered, in the exercise of its discretion, that
neither party had achieved substantial success to warrant a costs order in their
favour. In this regard it is well to remember that the proceedings in the high court
revolved around the issue of lawfulness or otherwise of the search, seizure and
continued detention of the appellant’s motor vehicle by the police. This was the
principal relief sought by the appellant. Concerning this, the parties advanced
diametrically opposed contentions. In the event the high court found the search
and seizure of the vehicle unlawful but not its continued detention. Accordingly, a
court of appeal should be slow to interfere with a costs order of a court of first
instance. Thus, this is not an appropriate case in which intervention is warranted.

[19] In the result the following order is made:
The appeal is dismissed with costs such costs to include the costs of two
counsel.

_________________
X M PETSE
JUDGE OF APPEAL

Appearances:

Appellant:

S M Mbenenge SC (with him A M da Silva)

Instructed by:

Mvuzo Notyesi Inc, Mthatha

Israel Sackstein Matsepe Inc, Bloemfontein

Respondents:

N K Dukada SC (with him M M Matyumza)

Instructed by:

The State Attorney, Mthatha

The State Attorney, Bloemfontein

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
31 May 2013
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

ANELE NGQUKUMBA v MINISTER OF SAFETY & SECURITY &
OTHERS

The Supreme Court of Appeal (SCA) today dismissed an appeal against the Eastern
Cape High Court, Mthatha’s judgment refusing to grant an order for restoration of a
motor vehicle, despite the fact that its seizure was found to be unlawful, on the
grounds that possession of a motor vehicle with engine and chassis numbers that
have been tampered with without lawful cause as contemplated in s 68(6)(b) of the
National Road Traffic Act 93 of 1996 (the Act) would be a criminal offence in terms of
s 89(3) of the Act.

The case arose in the district of Mthatha, Eastern Cape Province, when the
appellant’s motor vehicle was searched and seized by members of the South African
Police Service on suspicion that it was stolen property. Following their search, the
police discovered that the vehicle’s engine and chassis numbers had been tampered
with, rendering possession of the vehicle unlawful in terms of s 68(6)(b) of the Act.
The high court (Pakade ADJP) declared the seizure unlawful and set it aside.
Nevertheless, it did not order restoration to the appellant. Instead it authorised the

police to retain the vehicle in their possession subject to the appellant complying with
the provisions of the Act.

The appellant appealed against this order on the grounds that in terms of the
mandament van spolie, a possessory remedy whose limited and focal objective is to
restore the status quo ante, that is to restore possession to the person despoiled, it
matters not that the spoliator might enjoy a stronger right and that the person
dispossessed might have no right to possession of the property despoiled. Whilst in
the present case the appellant was able to satisfy the requirements of the
mandament, the SCA nevertheless declined to restore possession of the vehicle to
him. In so doing the court determined that a recent analogous judgment of this court,
which came to the opposite conclusion, was wrongly decided. Instead it followed
other judgments of the SCA which held that restoration of possession in such
circumstances would be sanctioning an illegality by authorising the police and the
appellant himself to commit an act rendered unlawful by s 68(6)(b) read with s 89(3)
of the Act which no court in this country must do. Hence the appeal against the order
of the high court was dismissed with costs.