IN THE SUPREME COURT OF APPEAL

JUDGMENT

In the matters between:
Case No:  440/10

MASIXOLE PAKULE

Appellant

and

MINISTER OF SAFETY AND SECURITY

First Respondent

THE STATION COMMISSIONER,
MTHATHA CENTRAL POLICE STATION

Second Respondent

Case No: 439/10

ARCHIE TAFENI

Appellant

and

MINISTER OF SAFETY AND SECURITY

First Respondent
THE STATION COMMISSIONER,
MTHATHA CENTRAL POLICE STATION

Second Respondent

Neutral Citation: Pakule and Tafeni v Minister of Safety and Security (440/10 & 439/10)
[2011] 107 (1 June 2011)

Court: NUGENT AND LEWIS JJA AND MEER AJA

Heard: 23 May 2011
Delivered: 1 June 2011
Summary: Search and seizure under ss 20 and 22 of the Criminal Procedure Act 51 of 1977 -
police may lawfully seize items even where when first seized there was no ground for
reasonable belief that item concerned in commission of offence - police may not return a vehicle
to person from whom seized if that would be contrary to s 68(6)(b) of the National Road Traffic
Act 93 of 1996.

ORDERS
On appeal from:  Eastern Cape High Court (Mthatha) (Alkema J sitting as court
of first instance in both cases):
Pakule v Minister of Safety and Security & another
The appeal is dismissed with costs including those of two counsel.

Tafeni v Minister of Safety and Security & another
The appeal is dismissed with costs including those of two counsel.
________________________________________________________________
JUDGMENT
LEWIS JA AND MEER AJA (NUGENT JA concurring)
[1] In the Eastern Cape High Court, Mthatha, there have emerged two lines of
cases that approach the application of sections 20 and 22 of the Criminal
Procedure Act 51 of 1977 differently. Alkema J, in the two decisions before us on
appeal, refers to these as ‘two schools of thought’ which have resulted in
conflicting decisions. In granting leave to appeal in both cases he suggested that
this court should resolve the conflict. This is particularly so because the one
approach is endorsed in a decision of the full court: Hiya v The Minister of Safety
and Security & another.1

1 Hiya v The Minister of Safety and Security & another, unreported , case no: 506/99.

[2] In brief, that case and others have held that where the seizure of an article is
not based on reasonable grounds in the first instance, the property – usually a
vehicle – must be returned to the owner or possessor despite evidence discovered
after the seizure that there are grounds reasonably to believe that the article has
been involved in the commission of an offence, and despite the fact that no one
may possess a vehicle which has been tampered with in various ways (a matter to
which we shall return). In other decisions the view has been taken that where the
initial belief, though at first not based on reasonable grounds, is subsequently
well-grounded, the seizure is lawful and the police may retain the article.

[3] Alkema J said, in his judgment granting leave to appeal in Tafeni’s case,
that applications for return of a vehicle seized by the police are common in that
court and that it is imperative that a definitive answer be provided so that there is
consistency in the approach to the applications for return of an article alleged to
have been unlawfully seized.

[4] It should be noted at the outset, however, that in both these cases the
vehicles were in fact seized lawfully, in terms of ss 20 and 22 of the Act, and that
the decisions did not turn on the question that this court has been asked to resolve.
In our view it is nonetheless important to determine the proper approach to the
issue raised by Alkema J.

[5] The sections of the Act central to the decisions are set out in full below.
Section 20 provides:
‘State may seize certain articles
The State may, in accordance with the provisions of this Chapter, seize anything (in this Chapter
referred to as an article) –
(a)  which is concerned in or is on reasonable grounds believed to be concerned in the
commission or suspected commission of an offence, whether within the Republic or elsewhere;
(b)  which may afford evidence of the commission or suspected commission of an offence,
whether within the Republic or elsewhere; or
(c)  which is intended to be used or is on reasonable grounds believed to be intended to be used
in the commission of an offence.’
Section 22 reads
‘Circumstances in which article may be seized without search warrant
A police official may without a search warrant search any person or container or premises for
the purpose of seizing any article referred to in section 20-
(a)
if the person concerned consents to the search for and the seizure of the article in
question, or if the person who may consent to the search of the container or premises consents to
such search and the seizure of the article in question; or
(b)
if he on reasonable grounds believes-
(i)
that a search warrant will be issued to him under paragraph (a) of section 21(1) if he
applies for such warrant; and
(ii)
that the delay in obtaining such warrant would defeat the object of the search.’

[6] In the first line of decisions it has been held that where there is no ground
for believing, reasonably, that an article is concerned in the commission of an

offence (or a suspected commission of an offence), at the time of the seizure, even
if such belief subsequently turns out to be warranted, then the seizure is unlawful
and the article must be returned. In Hiya,2 for example, the decision of the full
court referred to, a police official received information that a vehicle suspected of
being stolen was seen on the road. He obtained a warrant and seized the vehicle.
After the seizure the vehicle was found to have suspicious features: a ground
engine number and altered chassis number. A finding that the seizure of the
vehicle fell within the purview of s 20 was set aside by the full court. The vague
allegations by the policeman about information he had received which prompted
the seizure were found not to suffice for a reasonable belief under s 20 of the Act.
The release of the vehicle was ordered.

[7] The first approach has been based on a restrictive interpretation of ss 20 and
22, given that they allow for limitations on fundamental rights, entrenched in the
Constitution. In Magobodi, for example, the court held that the rights to privacy
and property were affected by the search and seizure provisions which therefore
had to be limited.

[8] On the other hand, it has been held that where evidence of tampering with
engine and chassis numbers is discovered, that in itself constitutes a reasonable
ground for believing that a vehicle had been stolen. See, for example, Mbutuma v

2 See also Magobodi v Minister of Safety and Security & another 2009 (1) SACR  355 (TkHC); Dyani v Minister of
Safety and Security & others 2001 (1) SACR 634 (TkD) and Mnyungula v Minister of Safety and Security & others
2004 (1) SACR 219 (TkHC).

The MEC for Safety and Security of the Eastern Province.3 In that case, when
looking for a vehicle suspected to be stolen at the applicant’s premises, the police
decided to inspect two other vehicles at the premises, and discovered the
tampering. They seized the vehicles even though they had had no prior ground for
suspecting that they were involved in the commission of an offence.  Madlanga J
said that it was ‘common knowledge’4 that engine and chassis numbers would be
tampered with where it is intended that a stolen vehicle be sold intact. Such
tampering would ground a reasonable belief that the vehicle has been stolen and
would justify a seizure without warrant or the consent of the owner.

[9] Moreover, as pointed out by Alkema J, in granting leave to appeal in
Tafeni’s case, once vehicles have been seized, and it is ascertained that the engine
and chassis numbers have been tampered with, the police may not return them
even to the owner: ss 68 and 89 of the National Road Traffic Act 93 of 1996.

[10] I turn now to the facts in each of these appeals.
Pakule
[11] The appellant, Masixole Pakule, is a taxi operator in the district of Qumbu,
Eastern Cape Province. During January 2008 Pakule’s motor vehicle, a Toyota
Hilux, was seized by members of the South African Police Services when it was
found abandoned on the side of a road. Pakule applied to the Eastern Cape High

3  Mbutuma v The MEC for Safety and Security of the Eastern Province 1998 (1) SACR 367 (TkD).
4 At 370b-e.

Court, Mthatha for an order declaring the search, seizure and continued detention
of his motor vehicle to be unlawful, and for its return. Alkema J dismissed the
application.

[12] The uncontested evidence of Detective Inspector Mncwati, stationed at the
Vehicle Identification Section and Safeguard Unit, Mthatha, was that Pakule
employed Sithembiso Pakule as a driver of his taxi. He was wanted for armed
robbery. The police received information that he was driving the vehicle
concerned in the Marhambeni location.

[13] Inspector Phatakubi located the vehicle, the driver sped away and the police
gave chase. The driver abandoned the vehicle next to the road and was pursued on
foot by the police. The driver fired a shot at the police who returned fire and
wounded him. He was arrested and returned to the vehicle. The vehicle was
inspected by the police. They discovered that it had neither number plates nor a
licence disc and that the driver was not in possession of a driver’s licence. The
vehicle was seized by the police. The driver was taken for medical treatment.
After his arrest, he was charged with robbery. However, the vehicle seized was not
suspected of being connected with the robbery.

[14] It was, however, discovered that the original chassis and engine numbers
had been filed off and replaced with new numbers which were slanted and

appeared not to be stamped professionally. Enquiries were made about the identity
of the motor vehicle to Toyota South Africa, and the vehicle chassis and engine
numbers were referred to the Pietermaritzburg Licensing Authority for verification
and confirmation. The investigations regarding the vehicle appear still to be
pending.

[15] From the evidence it is clear that the vehicle was seized because of the
absence of a license disc and number plates and because the driver was driving
without a licence. This was immediately evident to the police officers before they
seized the vehicle. These factors constitute contraventions of the National Road
Traffic Act. Section 4(2) of that Act requires all motor vehicles to be registered
and licensed. Section 12 provides that no person shall drive a motor vehicle on a
public road without being in possession of a valid driver’s licence.  Section 68,
among other things, relates to unlawful acts in relation to registration plates and
numbers.  Section 89(1) makes it an offence to contravene or fail to comply with
any provision of the National Road Traffic Act. And s 89(2) provides for fines or
imprisonment upon conviction, not exceeding six years.

[16] The failure to have number plates and licence disc, and driving without a
licence accordingly all constituted criminal offences in which the motor vehicle
was involved.  There can be no doubt that the police officers who seized the
vehicle had grounds reasonably to believe this to be the case. There would also in

the circumstances have been grounds reasonably to believe that if the facts
recorded above were placed before a magistrate, a search warrant would have been
issued under s 22(b) of the Criminal Procedure Act.  The police officers who
seized the vehicle were accordingly entitled to do so in terms of s 20 read with s
22(b) of the Act.  The high court thus correctly refused the application.

Tafeni
[17] The appellant, a taxi operator in the Ngqeleni district, Eastern Cape was
deprived of possession of his vehicle by members of the South African Police
Services (SAPS).  He applied to the Eastern Cape High Court, Mthatha for an
order declaring the search, seizure and continued detention of his vehicle to be
unlawful and for its return to him. Alkema J dismissed the application but gave
leave, as we have said, to appeal to this court.

[18] The facts are largely not in dispute. On the afternoon of 14 January 2009
Captain Kwanini and Inspector Mtshengu, members of the South African Police
Service, attached to the Vehicle Identification Section and Safeguard Unit, were
on official duty at Ngqeleni Village, in the Eastern Cape. They noticed a white
Toyota Hilux motor vehicle parked close by. Passengers were alighting from the
vehicle.  It appeared as if the white paint on the vehicle was superimposed over
red paint and this aroused their suspicion that the vehicle might be stolen. The
affidavit of Kwanini explained that both he and Mtshengu had attended a motor

vehicle identification course which equipped them ‘with expert knowledge to be
able to make a reasonable observation in respect of a suspiciously defaced
vehicle’.

[19] They approached the driver of the vehicle, identified themselves as police
officers and informed him of their suspicion that the vehicle he was driving was
stolen, because of the white paint superimposed over the red. They asked the
driver to accompany them to the police station where the vehicle would be
inspected. He agreed but asked to be allowed first to drop off the remaining
passengers at the taxi rank, which he did.  Thereafter the police officers escorted
the vehicle to the Ngqeleni police station.

[20] There, the driver identified himself as Lusindiso Nozintaba and said that the
vehicle was owned by the appellant, Mr Tafeni, who employed him as a taxi
driver. Captain Kwanini explained that due to their suspicions the police officials
wanted to search the vehicle to investigate if it was an item liable to be seized by
the State. Kwanini again asked Nozintaba for permission to search and the latter
consented.

[21] The police officers opened the bonnet and discovered that the inner fenders
were painted red whilst the body of the vehicle was white. They observed that the
tags on the engine wall were not the original tags. It was clear to them that these

had been removed and other tags remounted onto the engine wall. An application
of acetone revealed that the engine and chassis numbers had been interfered with.
The spacing between the numbers was observed to be unequal and the numbers
had been defaced. The engine numbers were hand punched as opposed to
computer generated and professionally imprinted.

[22] Captain Kwanini telephoned Tafeni and asked him to come urgently to the
police station. He was asked to produce documents proving his ownership of the
vehicle but was unable to do so. He said he had bought the motor vehicle painted
white from one Gxaba. According to Kwanini when it became clear that Tafeni
could not prove ownership, he was informed that the law compelled them to seize
the vehicle for further investigation, based on the discoveries which Tafeni could
not explain.

[23] Kwanini informed Tafeni that the vehicle would not be released until he
brought the previous owner to account for the irregularities on the vehicle. A
statement was taken from Tafeni and the vehicle was towed away. Kwanini then
filled in a seizure form. A subsequent inspection of the vehicle, by an expert from
Toyota South Africa, confirmed that the motor vehicle had been tampered with in
several material ways.

[24] Thereafter continuous requests for Tafeni to bring the previous owner of the
vehicle to the police to assist in the investigation came to nought. Ultimately the
appellant was arrested and charged for unlawful possession of a motor vehicle.
There are currently pending criminal proceedings against him. The vehicle is an
exhibit in such proceedings.

[25] It is clear that at the time when the vehicle was seized (at the police station)
the police had already discovered the evidence that grounded a reasonable
suspicion (objectively) that it was concerned in the commission of a criminal
offence. And indeed, Kwanini informed Tafeni at the police station that the law
compelled them to seize the vehicle for further investigation, based on the
discoveries they had made. Before then the vehicle had not been seized but driven
by Tafeni’s driver to the police station for the purpose of searching it. At the time
the vehicle was seized, therefore, it had already been searched with the requisite
consent as specified in s 22(a). The court below correctly dismissed the
application for the return of the vehicle to Tafeni.

The principles applicable in both cases
[26] As we have said, in both the Pakule and Tafeni mattters, the seizures were
lawful at the outset. 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), 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 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.

[27] Section 68(6)(b) of the National Road Traffic 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.’
In terms of s 89(3) of that Act, a contravention of s 68(6) amounts to a criminal
offence rendering the accused liable on conviction to a fine or imprisonment not
exceeding a period of three years.

[28] In Marvanic Development (Pty) Ltd & another v Minister of Safety and
Security & another5 the appellants sought the return of two vehicles that had been
seized by the police on suspicion that they had been stolen. The suspicion arose
after it was found that the registration and chassis numbers had been tampered
with. Criminal charges were laid against the appellants for being in possession of
stolen property and for fraud, but these were later withdrawn. The appellants
claimed the return of their vehicles on the basis of s 31(1)(a) of the Criminal
Procedure Act which provides that if no criminal proceedings are instituted in
connection with any article seized, it shall be returned to the person from whom it
was seized. Their claim failed on the basis that s 68(6)(b) of the National Road
Traffic Act prohibited them from being in possession of the vehicles even as
owners. Lewis JA writing for the majority said:6
‘[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 possession lawful.’

[29] That s 68(6)(b) does not permit the possession and consequently return of
vehicles that have been tampered with, even to their owners, was again
emphasised by this court in Basie Motors BK t/a Boulevard Motors v Minister of

5 Marvanic Development (Pty) Ltd & another v Minister of Safety and Security & another 2007 (3) SA 159 (SCA).
6 Para 8.

Safety and Security.7 In that case too a claim by the owner under s 31(1)(a) of the
Criminal Procedure Act for the return of a vehicle seized by the police failed. The
chassis numbering, it was discovered, had been tampered with. Mpati DP said:8
‘[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.’

[30] More recently in Absa Bank v Eksteen,9 another matter in which tampered
chassis and engine numbers were revealed after a vehicle was seized by the police,
Nugent JA stated, on the authority of Marvanic, that the seizure by the police
under statutory authority, was not capable of being resisted. The fact that the
owner might be capable of later acquiring the right to possession is immaterial.

[31] In the light of the decisions of this court there can and should no longer be
any doubt that a vehicle seized by the police cannot be returned to persons from
whom they have been seized if any of the features referred to in s 68(6) of the
National Road Traffic Act are present.

[32] And, as we have said, even if a seizure (of a vehicle or any other article)
was initially based on grounds that were not reasonable, where the police discover
subsequently that there are indeed grounds for a reasonable belief that an article is
concerned in the commission of an offence, they may then seize it lawfully. A

7 Basie Motors BK t/a Boulevard Motors v Minister of Safety and Security (135/05 [2006] ZASCA 35 (28 March
2006).
8 Para 16.
9 Absa Bank Ltd & another v Eksteen (81/10) [2011] ZASCA 40 (29 MARCH 2011)  paras 1 and 12.

return to the person from whom the item was seized would be an exercise in
futility, bearing in mind that at the moment of return the article might lawfully be
seized again.

[33] We consider therefore that Alkema J’s approach to the application of ss 20
and 22 of the Criminal Procedure Act is correct, and that both appeals must fail.

[34] Orders
Pakule v Minister of Safety and Security & another
The appeal is dismissed with costs including those of two counsel.

Tafeni v Minister of Safety and Security & another
The appeal is dismissed with costs including those of two counsel.

_____________
C H Lewis
Judge of Appeal

_____________
Y S Meer
Judge of Appeal

APPEARANCES:
PAKULE
APPELLANT:

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

Instructed by

Mvuzo Notyesi Inc,

Mthatha;

Matsepes Inc,

Bloemfontein.

RESPONDENTS:
N K Dukada SC (with him M Gabavana)

Instructed by

C B Nguza & Associates,

Mthatha;

The State Attorney,

Bloemfontein.

TAFENI
APPELLANT:

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

Instructed by

Mvuzo Notyesi Inc,

Mthatha;

Matsepes Inc,

Bloemfontein.

RESPONDENTS:
N K Dukada SC (with him L Matoti)

Instructed by

C B Nguza & Associates,

Mthatha;

The State Attorney,

Bloemfontein.

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
31 May 2011
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.
* * *
PAKULE AND TAFENI V MINISTER OF SAFETY AND SECURITY

The Supreme Court of Appeal (SCA) today dismissed appeals by Mr Masixole Pakule and
Mr Archie Tafeni, both taxi operators, against orders of the Eastern Cape High Court,
Mthatha dismissing their applications to have the search, seizure and continued detention of
their vehicles declared unlawful, and for their return.

In both matters the vehicles were lawfully seized in terms of sections 20 and 22 of the
Criminal Procedure Act 51 of 1977, which provide for the seizure of certain articles by the
State and for circumstances in which an article may be seized without a search warrant
respectively. The question which the SCA was called upon to resolve was the inconsistency
in the approach of the decisions of the high court to the applications for return of an article
alleged to have been unlawfully seized. On the one hand, it had been held that where the
seizure of an article was not based on reasonable grounds in the first instance, the article-
usually a vehicle-must be returned to the owner or possessor despite evidence discovered

after the seizure that there were grounds reasonably to believe that the article had been
involved in the commission of an offence, and despite the fact that no one may possess a
vehicle which has been tampered with in various ways. On the other hand, it had been held
that where the initial belief, though at first not based on reasonable grounds, was
subsequently well-grounded, the seizure was lawful and the police may retain the vehicle.

The SCA held that, on the assumption that there were no grounds for a reasonable belief
that the vehicles in the cases before it were concerned in the commission of an offence (that
is, that there was no compliance with section 20), it saw 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 vehicle is concerned in the commission of an offence-such as the
tampering with engine and chassis numbers-they should not seize the vehicle lawfully. If
that were not so, and they returned the vehicles to the alleged owners, the SCA held, they
would be acting in contravention of section 68(6)(b) of the National Road Traffic Act 93 of
1996, which does not permit the possession and consequently return of motor vehicles
whose engine or chassis numbers have been tampered with in any way. It further held that
an order by a court that a vehicle be returned would defeat the provisions of the National
Road Traffic Act. It also held that a return to the person from whom the vehicle was seized
would be an exercise in futility, bearing in mind that at the moment of return the vehicle
might lawfully be seized again.