SWAZILAND
HIGH COURT
MATOLO
VUSI
Applicant
Vs
COMMISSIONER
OF POLICE
1st
Respondent
THE
ATTORNEY GENERAL
2nd
Respondent
Civ.Trial
No. 1788/2002
Coram SAPIRE,
CJ
For
Applicant
For
Respondent
JUDGMENT
(18/06/2002)
This
is an application made to secure the release to the applicant of a
motor vehicle described as a Ford Bantum registration number FLD 769
GP. From this we recognise that the vehicle is registered in the
Gauteng Province. From the allegations in the founding affidavit it
appears that the vehicle was brought into Swaziland where it was
seized by the police as being suspected of being a stolen vehicle.
The applicant is of course not a Swazi citizen and the grounds upon
which the application is brought was stated in the founding affidavit
as follows:-
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In
February last year the applicant purchased the motor vehicle fully
described in the notice of motion, at Johannesburg Police Station,
13th Street Soweto, South Africa. It is not said from who the vehicle
was purchased but merely that it was purchased at the Police Station.
Who the seller is, it does not appear.
The
allegation is that the motor vehicle is still registered in the name
of M.C. Mathathe and still bears the same registration numbers FLD
769 GP. The applicant attaches to the affidavit a certificate of
registration of the motor vehicle marked VM 1. Apart from anything
else I am not sure that that certificate which emanates from a
foreign registry is admissible as evidence. It has to be
authenticated but that is not the point in this case. The applicant
says:-
"I
was in the process of transferring it into my name when it was
confiscated by the police."
When
one bears in mind that the vehicle was purchased in February last
year, why the vehicle should still be in the process of transfer in
May this year is completely unexplained. In any event the vehicle is
clearly not registered at present in the
applicant's
name.
He
says that at the beginning of May 2002 when visiting Swaziland the
motor vehicle was given to Vuyisile Matsenjwa to run her errands in
town with the motor vehicle. He was later told that the vehicle had
been taken by members of the police force based at Manzini for
examination. The police requested to see the registration documents
which were provided. Later they were informed that the vehicle would
have to remain with the police so that a thorough examination of the
motor vehicle would be done at Oshoek Boarder Post.
No
objection to the examination was made. The applicant thereafter
returned to Johannesburg leaving his friend to pursue the issue and
inform him once the results were available.
The
application was made close to a month after the vehicle was taken and
neither the applicant himself or Matsenjwa has heard from the police.
The
riposte is that the vehicle was seized in terms of the provisions of
the Theft of Motor Vehicles Act of 1991 and continues to be held for
a period of thee years, in terms of a retention order made by the
magistrate. The circumstances in which the
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order
was made have not been disclosed. It is disturbing that such an order
was apparently made ex parte without the applicant being afforded the
opportunity of being heard. Because of the conclusion to which I have
come I will not further examine the validity of the order.
Relevant
portions of the Act are that there is a presumption of theft of a
motor vehicle in Section 4 of the Act which provides that unless the
contrary of proved by him a person shall be presumed to have
committed an offence under Section 3 that is the Theft of a Motor
Vehicle if he is found in possession of a motor vehicle the engine,
the chassis number or registration number of which or other
definitions have been altered, disfigured or tempered with in any
manner.
The
particular vehicle in question is said to have its identification
marks obliterated or changed and the presumption of theft arises,
albeit no mention is made where the theft took place. The courts of
Swaziland may not have juridiction if the thief is, and the theft
took place in South Africa. The offence is presumed if the vehicle is
found in Swaziland in someone's possession.
The
act also provides for the seizure of this vehicle and for an
application for the return of the vehicle seized. In this case
Sub-Section 7 of Section 16 is applicable and it reads: -
"No
Court shall order the release of a motor vehicle seized under this
Section to a person from whom it was seized only because the Director
of Public Prosecutions has declined to prosecute that person or that
person having been prosecuted has been acquitted of the offence in
connection with that motor vehicle unless the release is supported by
documentary proof of ownership or lawful possession."
In
this case the applicant has produced no documentary proof of
ownership or lawful possession. What has been produced is the
certificate which is attached to the founding papers. It was is
issued in Gauteng but clearly as the applicant has stated in his own
papers that the certificate reflects somebody other than the
applicant as the owner. Applicant's statement that he has bought the
vehicle and he is in the process of registering the change of
ownership is not documentary evidence of his title.. If it were to be
possible to make an order under the Section there would have to be
proof at least of a certificate or a document in terms of which the
registered owner was
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prepared
to transfer the ownership to the applicant. As matters stand it is
somebody other than the applicant who according to the documentary
evidence is the owner of the vehicle. There is no evidence of the
applicant's entitlement to be in possession. In terms of the Section
I have quoted it is not possible for the Court to make an order as
prayed and accordingly the application is dismissed with costs.
SAPIRE,
CJ
