THE
HIGH COURT OF SWAZILAND
Civil
Case No.1073/02
In
the matter between:
BRIGHT
ZONDO Applicant
AND
COMMISSIONER OF POLICE Respondent
CORAM: MASUKU
J.
For
Applicant: Mr M. Mabila
For
Respondent: Ms Z. Mkhwanazi
JUDGEMENT
2nd
August, 2002
This
is an application in the long form and in which the following relief
is prayed for:-
1. That
the Respondent and/or his lawful subordinate(s) release the motor
vehicle fully described in the affidavit annexed hereto to the
Applicant forthwith;
2. Costs
3. Further
and/or alternative relief.
2
The
manner in which prayer 1 has been couched begs comment. Rule 6 (5) of
the Rules of Court as amended provides the following:-
"If
such application is brought upon notice to the Registrar, it shall
set forth the form of order sought, specify the affidavit or
affidavits filed in support thereof request him to place the matter
on the Roll for hearing and be as near as may be in accordance with
Form 2 of the First Schedule. "
It
is my view that where the above Sub-Rule refers to the form of order
sought, it also requires the applicant to furnish full information
regarding the Order sought. If delivery of property is required, the
full particulars thereof must appear on the face of the Notice of
Motion in order to establish the particulars or further information.
To refer a reader to the affidavit for the particulars as is the case
herein is totally out of order and must not be repeated. The Notice
of Motion must be self-contained.
Facts
of the matter.
The
Applicant alleges that on the 28th December 2001, a Police Officer,
Mr Ngwenya, impounded his vehicle a green Golf bearing registration,
number DVZ 181 GP. No particulars of the, model, chassis and engine
number as is customary have been furnished by the Applicant. He
contends that the Police never exhibited a Court Order before taking
the said vehicle which is still in their possession. On enquiry, he
was advised that the Police are awaiting results of tests regarding
whether or not the motor vehicle is stolen. The Applicant further
annexed a copy of an identity document of one Vusi Ephraem Nkosi whom
he alleges is the seller of the vehicle. He was unable to furnish the
registration documents to Court because they were seized by the
Police together with the motor vehicle and remain in the custody of
the Police.
The
Respondent, on the other hand, contends that the vehicle was seized
and detained on the 4th January 2002 in terms of the provisions of
the Theft of Motor Vehicles Act 16/1991 (hereinafter referred to as
"the Act"). A detention Order by a Magistrate in the Hhohho
District marked "DZ1", in proof of this assertion is
annexed. The Respondent further contends:-
3
(i) that
the numbers of the vehicle have been tampered with and the job number
removed. An Affidavit of Dt. Sgt. Jotham Mashinini in support of this
contention is annexed.
(ii) that
the Applicant is not the owner of the vehicle in question.
(iii) that
the manufacturers of these vehicles, Volkswagen South Africa advise
that according to their records, the information supplied in
connection with this vehicle relates to a Fox 1.6 and not to a Citi
Golf. In this connection, an Affidavit by Marius Delport of
Volkswagen of South Africa is annexed and marked "DZ3".
(iv) that
the Applicant has failed to furnish a document of disposal as
required by the provisions of Section 7 of the Act.
In
the Replying Affidavit, the Applicant applied, in limine for annexure
"DZ3" to be struck out for the reason that it has not been
authorised (should be authenticated) by a Notary Public and was
signed and sworn to before a member of the South African Police
Services yet they have an interest in the matter.
I
propose to deal with the application to strike out first. Application
to strike out.
The
first basis for the application to strike out annexure "DZ1"
was that notwithstanding that it was an affidavit sworn to and
attested in the Republic of South Africa, it had not been
authenticated contrary to the provisions of Section 13 of The
Authentication of Documents Act 20/1965.
That
Section reads as follows: -
(1) A
document signed in the United Kingdom or, without prejudice to
section 12,
4
in
any other country or territory within the Commonwealth shall be
sufficiently authenticated if authenticated by the certificate of-
(a) a
notary public, if it bears his signature and seal of office, or
(b) the
mayor or provost of a town, if it bears his signature and seal of
office or
(c) the
permanent head of a government department, or
(d) the
registrar or assistant registrar of a court of justice having
unlimited jurisdiction, or
(e) the
high sheriff of such country, or
(f) an
officer designated, in such country or territory, as an authority
competent for the purposes of the Convention, to issue a certificate
(apostille):
Provided
that a document so signed which affects or relates to property not
exceeding in amount or value one thousand emalangeni shall require no
further authentication if it is authenticated by a certificate,
similar to the form of certificate set out in the First Schedule, of
a magistrate, assistant magistrate or a justice of the peace of the
country, territory or place in which such document is signed.
(2) Subject
to sections 10, and 12 subsection (1) shall apply to documents signed
in the Republic of South Africa, or the Irish Republic, in the same
way as it applies to documents signed in a country or territory
within the Commonwealth.
It
is clear from Section 2 that document in that Act includes an
Affidavit. This therefor means that an Affidavit also needs to be
authenticated.
Mr
Mabila's argument however flies in the face of the provisions of
Section 10 (1) of the said Act. The said Section provides the
following: -
A
document which is -
(a). ........
(b) an
affidavit purporting to have been sworn before, and attested by a
Commissioner of Oaths of-
(i) Swaziland
outside Swaziland; or
(ii) Botswana,
Lesotho, the Republic of South Africa or Namibia within
5
Such
territories respectively;
Shall
without further authentication, be accepted for use in a court in
Swaziland unless it is proved
not
to have been signed or sworn by the person by whom it purports to
have been signed or sworn.
From
the reading of annexure "DZ3", it is clear that it was
signed and sworn to by a Commissioner of Oaths in the Republic of
South Africa. There is no evidence or even contention that it was not
signed or sworn by the person who purported to have signed or sworn
to it. It is therefor clear that this affidavit fully meets the
rigours of Section 10(1) (b) and that it can be used in this Court
without further authentication. Had Mr Mabila devoted more time to
the entire provisions of this Act, I am in no doubt that he would
have abandoned this challenge. This point must therefor be dismissed.
Mr
Mabila however had another string up his bow in his challenge of the
propriety of accepting annexure "DZ3". He contended, as
contained in the Replying Affidavit that the said affidavit was sworn
before a Police Officer in the South African Police Services although
they (S.A.P.S.) had an interest in the matter.
The
Commissioner of Oaths to the said Affidavit was Johanna Annarette
Nolte of the S.A.P.S. Vehicle Identification Section in Uitenhage.
The nature of the interest that the Commissioner of Oaths had in the
matter was not disclosed neither was any authority for that
proposition provided by Mr Mabila.
An
analysis of the relevant question was undertaken by Browde J.A. in
THE DIRECTOR OF PUBLIC PROSECUTIONS VS THE LAW SOCIETY OF SWAZILAND
CIV. APPEAL NO.28/95. This was however a decision on whether an
attorney can serve as Commissioner of Oaths in any proceeding in
which her or his clerk or partner has an interest. The conclusion was
after considering two previous judgements of this Court, in MAGAGULA
VS TOWN COUNCIL OF MANZINI & OTHERS 1979-81 SLR 291 (per Nathan
C.J.) and F.N. DLAMINI VS J.N. DLAMINI 1982 - 86 SLR (per Hannah
C.J.) to the effect that it is not permissible and that such
affidavits would be inadmissible.
At
page 13 Browde J.A., in his careful analysis proceeded to state as
follows in relation to the above rule: -
6
"...
'it is a rule as old as Lord Hardwicke's time, that an affidavit,
sworn before the solicitor of the party in the cause, cannot be used.
The rule prevails in all the Courts of Westminster Hall.' It then
goes on to say that the reason for this rule is "sufficiently
obvious ". I take this "obvious reason "to be the
crucial requirement that a person attesting an affidavit must be
completely objective and have no interest of any kind in the contents
or import of that affidavit". (my own emphasis)
Can
it be said that Nolte had an interest in the "contents or
import" of the affidavit in casu? As earlier indicated, no
reasons have been advanced to show what the nature and extent of the
interest is or is likely to be. It must be left to conjecture that
the interest is only that she is a member of the S.A.P.S. The
question that logically arises is whether she should by virtue of her
membership of the S.A.P.S. perse be disqualified? Would the interest
she has be of such proximity as to disentitle her to commission the
affidavit?
It
is well, in considering this issue to put the following facts in
proper perspective. First the motor vehicle which is the subject of
the investigations was impounded in Swaziland in terms of this
country's legislation by a member of the R.S.P. Secondly, the
assistance of S.A.P.S. at Oshoek Border, in particular Sgt. Mashinini
was essayed to establish whether the vehicle was stolen or not, for
purposes of reporting to the R.S.P. Mashinini made enquiries from
Volkswagen South Africa and one Marius Delport of Volkswagen deposed
to the affidavit in Uitenhage.
Can
it be said, that the conspectus of these facts would lead to an
inference that Nolte had an interest in contents or import of the
affidavit? I think not. As indicated above, the proceedings were in
Swaziland and all that she was required to do was to serve as
Commissioner of Oaths in respect of an affidavit from Volkswagen S.A.
There is no indication that she or her station or section was even
remotely involved in any degree in either the investigations or the
enquiries relating to the subject matter of these proceedings. This
would mean that every Police Officer in South Africa would,
regardless of where he or she is stationed not serve as Commissioner
of Oaths and this would lead to illogical conclusions, particularly
where it is clear that he/she or her station has no interest or role
in the matter or the contents or import of the affidavit.
7
One
may, for argument's sake consider a situation in which the Law
Society President moves an application on motion for the removal of a
practitioner from the roll in his capacity as such. It would in my
view be untenable for one to conclude that none of the attorneys in
Swaziland who are members of the Society can be qualified to serve as
Commissioner of Oaths to an affidavit drawn in that connection. In my
view, each case must be judged on its own merits after a careful
scrutiny of all the attendant facts and circumstances. It is only
after finding that there is an interest that a decision to disqualify
be taken. I am of the view that this point in limine also ought to
fail.
The
Merits.
The
question for determination is whether the Applicant has succeeded in
making out a case for relief, particularly in terms of prayer 1 of
the Notice of Motion.
Any
person who applies for the release of a motor vehicle seized in terms
of the Act will be successful if he can meet the requirements of the
provisions of Section 16 (4) of the Act, which read as follows:-
"Any
person who has evidence of ownership or lawful possession of a motor
vehicle seized or detained under this Act may apply to court at any
time within six months of the seizure with a view to securing the
release of the motor vehicle."
It
is not disputed that the Applicant has launched this application
timeously. With regard to the element of ownership or lawful
possession, the Applicant in his affidavit states that the vehicle's
registration documents were taken by the Police. He stated that he
bought the vehicle from one Vusi Ephraem Nkosi of the Republic of
South Africa and as earlier indicated, annexed a copy of the said
Nkosi's identity document. This can hardly be said to constitute
evidence of lawful possession or ownership of the vehicle.
The
registration document handed by the Applicant to the Police was
handed up to Court by Ms Mkhwanazi and it bears the name of one
Mothlamme N.E., identity number 5611090713081 as the registered owner
of the said vehicle. There is clearly a conflict in
8
the
Applicant's story regarding the registered owner of the vehicle in
question i.e. whether is Nkosi or Mothlamme. An attempt to find the
said Nkosi with a view to obtain his affidavit apparently proved
futile. It is however doubtful whether Nkosi's affidavit would have
unlocked the mystery surrounding the ownership of this vehicle.
However, his affidavit is not before Court.
It
is also clear that the Applicant is not in possession of any
document, as required by the Act in Section 7 (1) read with 7 (2)
evidencing sale, transfer or disposal of the vehicle in question.
Failure to furnish this document to the purchaser and failure to
demand the same from the seller constitutes an offence. The Applicant
has not been charged under this Section but it cannot be denied that
the presence of this document would have gone a long way in
buttressing his claim that he purchased the vehicle from whomsoever,
provided of course the documents of title themselves confirm the
identity of the alleged seller.
It
is my view, regard had to the foregoing that the Applicant has failed
to produce evidence of ownership or lawful possession of this vehicle
as required by Section 16 (4). I am of the view that prayer 1 should
therefor be dismissed.
Mr
Mabila had an alternative argument to the effect that the detention
Order in terms of which the said vehicle was detained lapsed in or
about March 2002 and that the purported extension of the Order in
May, 2002 was ineffectual. I do not agree. The initial detention
Order was issued on the 7th January and was valid for a period of
three months. If one regards this to refer to calendar days, it would
mean that the detention Order lapsed on the 7th April 2002. The
extension was done on the 10th May 2002, some two or three days after
the lapse. This would not, in my view be regarded as an
unconscionable delay such as to lead to a conclusion that the
extension was ineffectual.
Should
I be wrong in this conclusion, there is yet another insuperable
difficulty facing the Applicant, in that if I were to hold that the
detention Order lapsed would the vehicle then revert to him as a
consequence? I think not because of his failure to produce evidence
of his ownership or lawful possession of the vehicle. Furthermore,
the affidavit of Sgt. Mashinini reflects that the job number was
removed and the affidavit of Delport reflects that the information
obtained from their records revealed the manufacture of a vehicle
other than the type of the one in issue. This remains unchallenged.
9
The
above facts would raise the presumption of theft contained in the
provisions of Section 4 of the Act, which would render it difficult
or improper for the Court to release the vehicle to the Applicant as
the defects referred to above have not been explained.
Mr
Mabila then referred the Court to DATNIS MOTORS (MIDLANDS) (PTY) LTD
VS MINISTER OF LAW & ORDER 1988 (1) SA 503 (NPD) where Didcott J.
ordered vehicles which were reasonably suspected to have been stolen
to be returned to the Applicant, a motor vehicle dealer. The basis
for that decision was that it had not been proved that the vehicles
were in fact stolen and that there were a number of other likely
explanations for the falsifications. The State had declined to
prosecute in the absence of evidence as to where and from whom the
vehicles had been stolen.
The
problems and concerns raised by the learned Judge in respect of
Section 31 (1) (b) of the Criminal Procedure Act 1977 of South Africa
in terms of which the vehicles were held, in part led him to order
the release of the vehicles as aforesaid were all adequately
addressed in The Theft of Motor Vehicles Act. Of particular interest
are the provisions of Section 16 (7) of the Act with the following
rendering:-
"No
Court shall order the release of a motor vehicle seized under this
section to the 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. "
(my own emphasis).
I
have already found that the Applicant has not furnished such
documentary proof. It would appear, in view of the Legislative
nomenclature that the declinature to prosecute and/or the failure to
establish the identity of the complainant or where the vehicle was
stolen does not assist an Applicant if he has no documentary proof of
lawful possession or ownership. The other major concern of Didcott J.
was the interpretation to be attached to the forfeiture clauses in
the Criminal Procedure Act as aforesaid. Those concerns are of no
moment in Swaziland as Section 22 deals comprehensively and fairly in
my view with the elaborate processes that precede the forfeiture. In
view of the foregoing, it is my view that
10
the
DATNIS CASE is clearly distinguishable as there was before that Court
no reference to or consideration of legislation which contains
provisions similar to the Act.
The
reference by Mr Mabila to the appellate judgement in MINISTER VAN WET
EN. ORDE VS DATNIS MOTORS (MIDLANDS) 1989 (1) SA 926 (AA) (per Van
Heerden J.A.) which is unfortunately in Afrikaans does not change the
conclusions that I arrived at considering the provisions of the Theft
of Motor Vehicles Act in this country. The portions written in
English on the headnote do not alter my conclusions as reflected
above.
The
one last issue raised is that the Applicant is entitled to the
release of the motor vehicle by virtue of the fact that he has
satisfied the requirements of the rei vindicatio. The authors Oliver
N.J.J. et al, "Law of Property", 2nd Edition, Juta &
Co. Ltd, 1992, define the rei vindicatio in the following language at
page 127:-
"The
rei vindicatio is an action with which the owner can recover a thing
that is still in existence and identifiable and that was removed from
the owner's physical control unlawfully."
The
Applicant, as held above, has clearly failed in my view to show that
he is the owner of the motor vehicle in question and has further
failed to show that the vehicle was removed from his physical control
unlawfully. The removal was in terms of the Act as contended by the
Respondents. It cannot with benevolence be said that he has satisfied
the requirements of the rei vindicatio. It is also my view that
whatever the position may be at common law, the Act has materially
altered the position at common law. The Courts cannot, in the face of
legislative interventions continue to operate on the basis of the
common law, thereby stultifying legislative intention and overriding
Legislative solicitudes in the process. See GIYANI DLAMINI VS
COMMISSIONER OF POLICE & ANOTHER CASE NO.3050/98 (unreported,
per. Maphalala J.) and BHEKISA MDZINISO VS THE COMMISSIONER OF POLICE
AND ANOTHER CASE NO.3132/00 (unreported, per Masuku J.) at page 8.
CONCLUSION.
11
In
view of the foregoing, it is my view that the Applicant has failed to
make out a case for the relief sought. The Application be and is
hereby dismissed with costs.
T.S.
MASUKU
JUDGE
