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      IN THE HIGH COURT OF SOUTH AFRICA
            (Northern Cape High Court, Kimberley)

                                      Case No:            657/2007
                                      Heard:              17/05/2010
                                       Delivered:          02/07/2010
In the matter between:


SA TRUCK BODIES (PTY) LTD t/a
TRAIL STAR                                                   Applicant


and


THE MINISTER OF SAFETY AND SECURITY                   1st Respondent
SENIOR SUPERINTENDENT
CHRISTO PETRUS HORAK                                    2nd Respondent


Coram: Kgomo JP; Lacock J et Mjali AJ

                               JUDGMENT

KGOMO       JP


[1]   This matter has its genesis on 13 August 2004 when Inspector
      Tiedt of the South African Police Service inspected and seized
      two   Henred   Fruehauf    interlink   trailers      (with           registration
      numbers/letters    BZV    948   FS     bearing        chassis          numbers
      AAH088742-PUFJ-261X and the other one numbers AAH088767-
      PURF-2122) at Nakop Border Post a gateway to Namibia, on the
      grounds that their chassis had been tempered with. The driver
      of the horse to which the trailers were linked was Mr Paulus
      Ndemulaompya (Paulus), a Namibian of Corner Sam Nujoma and
                                                                          2


      Nelson Mandela Streets, Windhoek.


[2]   Upon certain investigations having been instituted and followed,
      which I advert to fully later, Superintendent Christo Petrus Horak
      informed the appellant’s attorneys, McIntyre and Van der Post,
      on 09 February 2007 that as certain pertinent questions had not
      been answered or satisfactorily explained the trailers were
      declared forteited to the State in terms of section 31(1)(b) of the
      Criminal Procedure Act (CPA), 51 of 1977, which stipulates that:
      “31   Disposal of article where no criminal proceedings are
      instituted   or   where     it   is   not   required   for   criminal
      proceedings
      (b) If no person may lawfully possess such article or if the police
      official charged with the investigation reasonably does not know
      of any person who may lawfully possess such article, the article
      shall be forfeited to the State.”


[3]   It is this forfeiture decision which precipitated the application
      before Moloi AJ by the appellant in which the company asked
      for the setting aside of Supt Horak’s decision and the restitution
      of the trailers to it, with costs. The Court a quo dismissed the
      application with costs. The appellant now approaches this Court
      with leave of the Court a quo.


[4]   The appeal, as advanced by Adv S J Reinders for the applicant,
      revolved around the following issues:
      4.1   That the court a quo misdirected itself in having found that
            the appellant had no locus standi to bring the application.
            In essence Moloi AJ was of the view that the appellant
                                                                           3


      was    not   the   owner    or    even    the   possessor   of     the
      confiscated trailers when they were seized at Nakop Border
      Post on 13 August 2004.
4.2   The second issue placed in dispute was that the Court a
      quo was wrong in having decided that the appellant has
      failed to show “good cause” to possess the trailers.                In
      other words, the appellant claims that it made out a proper
      case for the legal restitution of the trailers to it.        In this
      regard the appellant disputed that the chassis numbers
      were falsified or defaced.
4.3   Thirdly, a submission was made that s68(6) of the National
      Road Traffic Act (Traffic Act), 93 of 1996, prohibits the
      possession or use of a vehicle with a falsified chassis or
      engine number on a public road. Mr Reinders argued that
      the legislation, be that under the CPA or the Traffic Act,
      cannot prevent the restitution of the trailers to the
      applicant, a manufacturer of trailers.          He contended that
      the court can issue an express disposal order to dismantle
      the trailers into mere parts, as those components would
      not constitute a vehicle.
4.4   Finally, appellant’s counsel contended that (I translate his
      entire submission on this point):           If the effect of the
      Legislation be to deprive the appellant of his ownership,
      even on his private property, in that event it is submitted
      that   the   provision     (s68(6)   of    the    Traffic   Act)    is
      unconstitutional,    as     the    Constitution     protects       and
      guarantees private ownership. The court a quo should, in
      the circumstances, have postponed the (entire) application
      sine die to enable the appellant to give notice in terms of
                                                                        4


            Rule 16(A) of the Rules of Court to all interested parties of
            its intention to impugn the offending provision, on the
            same papers suitably supplemented.


[5]   I find it convenient to treat the locus standi and the “lawful
      cause shown” issues together as the merits conflate.


[6]   The first aspect of note is the manner in which the police
      afforded the professed owner of the trailers every opportunity for
      self-identification and to show cause why the vehicles should be
      restored to that owner. Paulus was given two Notices (one for
      each vehicle) that served as a receipt.          They detail the
      registration numbers, the chassis numbers, the model, the
      make, the type, the colour etc of the vehicles.         The notices
      (Annexures CPH 1A and CPH 2B) state (translated):
      “2.   The vehicle was seized by virtue thereof that the chassis
            numbers were tempered with. This is accordingly a vehicle
            as contemplated in section 68(6)(a) and (b) of the National
            Road Traffic Act, 93 of 1996.
      3.    The seizure was effected in terms of s20 of the Criminal
            Procedure Act, 51 of 1977, and will be kept in police
            custody in accordance with s30 of the said Act.
      4.    ---.
            Notification
      5.    You are hereby afforded an opportunity to furnish any legal
            reason why the chassis numbers were tempered with.
            Failure to comply will result in s31 of the CPA becoming
            operative.
      6.    This notice must be delivered to the person who claims a
                                                                          5


            right of ownership to the seized items, if you are not the
            rightful owner. Failure to deliver the notice to the rightful
            owner could result in prejudice to the owner, for which the
            owner will have a right of recourse against you.”
            The two identical notices are dated 13 August 2004, and
            signed by Insp Tiedt and Paulus acknowledged their receipt
            by attaching his signature.


[7]   The various provisions alluded to in Paulus’ notices read as
      follows:
      7.1   S68(6) (Traffic Act 93 of 1996):
            “(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.”


      7.2   S20 (CPA 51 of 1977):
            “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
                                                                                   6


            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.”


7.3   S30 (CPA 51 of 1977):
      “Disposal by police official of article after seizure
      A police official who seizes any article referred to in section
      20 or to whom any such article is under the provisions of
      this Chapter delivered-
            (a)    may, if the article is perishable, with due
            regard to the interests of the persons concerned,
            dispose of the article in such manner as the
            circumstances may require; or
            (b)    may, if       the    article    is stolen property or
            property suspected to be stolen, with the consent of
            the person from whom it was seized, deliver the
            article to the person from whom, in the opinion of
            such police official, such article was stolen, and shall
            warn such person to hold such article available for
            production at any resultant criminal proceedings, if
            required to do so; or
            (c)    shall, if the article is not disposed of or
            delivered under the provisions of paragraph (a) or
            (b), give it a distinctive identification mark and retain
            it in police custody or make such other arrangements
            with   regard        to    the   custody        thereof        as    the
            circumstances may require.”
                                                                       7


[8]   Mr Reinders had no answer to the question why Paulus'
      statement was not obtained explaining who he knew the owner
      to be; what he knew about the tempering of the chassis; who he
      gave the notice to and why, and who attempted to export the
      trailers to Namibia.    These questions are germane because
      Annexures CPH3A and CPH3B were produced by Paulus as proof
      to Insp Tiedt that Sgt Williams of Bloemfontein physically
      inspected the trailers on 24 July 2004 (three weeks before being
      seized) and that the sergeant found that they were "not reported
      as stolen." Sgt Williams consequently issued the "South African
      Police Chiefs Co-operative Organization Import/Export Motor
      Vehicle Clearance Certificates."    The certificates show that one
      Thabo Stephen Sephula (Thabo) of 43 George Lubbe Street,
      Bloemfontein, is the "person tendering the vehicle for clearance."
      Appellant has not encorporated Thabo's statement in their
      papers nor is any explanation forthcoming from the company
      who Thabo is and how he features in this whole sagga.


[9]   On the clearance certificate issued by Sgt Williams Snr Supt
      Horak says it must be understood in the following context:
      “19. This certificate is issued in terms of SADC resolution that
           all motor vehicles exported to other countries in the region
           of SADC have to be certified as not stolen before they
           leave the borders of the country of origin. This certificate
           tells the reader that the motor vehicle was physically
           inspected and it was not reported stolen from the country
           of origin.
      20   I attach hereto a Request for Police Clearance form that
           was    duly   completed       by   Sergeant   Williams   from
                                                                         8


              Bloemfontein where he states that he accurately informed
              the presenter that this document is issued with the
              express understanding that the contents thereof merely
              indicate that the motor vehicle identification numbers
              referred to therein have not as upon the date of the issue
              of the statement, been officially recorded on the SAPS
              Circulation System as having the status of sought or
              possibly sought and the statement does not in any way
              identify or guarantee that the motor vehicle to which the
              vehicle identification numbers refer is in fact not stolen.
              This   is   attached   hereto   and   marked   as   annexure
              “CPH 4A” and “CPH 4B”.
       21.    Inasmuch as the certificate is sufficient proof that the
              motor vehicle has not been stolen, there could be other
              reasons why the certificate was issued.         The reasons
              include the fact that not the same vehicle was presented to
              the police officer or the officer who inspected the said
              vehicles did not have the necessary expertise to see that
              the identity of the motor vehicle had been tampered with
              and not excluding the possibility of corruption.”


[10]   Mr Johannes Hendrik Botha, who describes himself as "an adult
       male director of the applicant," the deponent to the founding
       statement of the appellant, states three years later, on 18 June
       2007 (the translation and paragraphing is mine) that:
       "(a)   The applicant trades in spare parts; manufactures and
              repairs trailers in Bloemfontein and elsewhere in South
              Africa. During about 2004 the applicant sold and delivered
              used Henred Fruehauf interlink trailers to Mr P J Snyman.
                                                                      9


           Shortly after delivery thereof to him they were seized by
           the SAPS (Motor Vehicle Section) at Upington, apparently
           because the chassis plate did not comply with certain
           specifications and requirements.
     (b)   Mr Snyman informed the applicant about this confiscation,
           after which the sale agreement between the parties was
           cancelled. The applicant supplied Snyman with substitute
           trailers. The applicant therefore regained his ownership of
           the    trailers   and negotiated further   with the   second
           respondent [Supt Christo Petrus Horak] for the restitution
           of the trailers."


[11] There is no explanation who Snyman is or what his address is.
     More importantly, as has become a pattern with the appellant,
     no statement by him is supplied to prove his once ownership.
     No written agreement or invoices showing dates and prices
     where applicable, of the first and second sale transactions
     between them are attached. We are in the dark as regards what
     the relationship between Paulus, Thabo and Smith is.        A wild
     assumption cannot even be made that Paulus delivered the
     notices to Snyman because Thabo, who cleared the vehicles for
     export, breaks the link in the chain. Once more Mr Reinders was
     left floundering concerning this omissions which, in my view,
     amounts to a deliberate suppression of information by the
     appellant.


[12] A party in motion proceedings is required to make a full and
     frank disclosure of the information at its disposal because the
     affidavit serves as a substitute for both the pleadings and
                                                                        10


         evidence at a trial.          See: Minister of Land Affairs and
         Agriculture v D & F Wevell Trust 2008(2) SA 184 at 200 C-E
         where Cloete JA remarked as follows:
         “It is not proper for a party in motion proceedings to base an
         argument on passages in documents which have been annexed
         to the papers when the conclusions sought to be drawn from
         such passages have not been canvassed in the affidavits. The
         reason is manifest - the other party may well be prejudiced
         because evidence may have been available to it to refute the
         new case on the facts. The position is worse where the
         arguments are advanced for the first time on appeal. In motion
         proceedings, the affidavits constitute both the pleadings and the
         evidence: Transnet Ltd v Rubenstein, [2006(1) SA 591 (SCA)
         [also reported at [2005] 3 ALL SA 425 (SCA) – Eds para 28] and
         the issues and averments in support of the parties' cases should
         appear clearly therefrom. A party cannot be expected to trawl
         through lengthy annexures to the opponent's affidavit and to
         speculate on the possible relevance of facts therein contained.
         Trial by ambush cannot be permitted.”


[13] The appellant's penchant for vagueness is further demonstrated
         with the following statement to the police by the selfsame Botha
         on 03 may 2006, almost a year prior to the statement quoted in
         para 9 (above), when he said the following (in English):
         "5.    Subsequent to the manufacturing of the trailers, SATB1
                and Henred Fruehauf (the manufacturer of the trailers)
                merged which made the investigation easier and enabled
                me access to the records of Henred Fruehauf as well.     I


1
    SATB - stands for SA Truck Bodies (Pty) Ltd – the appellant.
                                                                          11


           have been able to collect information regarding the origin
           of   the   trailers   as   well   as   their   movements    since
           manufacturing.        Where available, I have also obtained
           substantiating documentation, annexed to this affidavit,
           where applicable.
     6.    SATB and Henred Fruehauf have trading addresses inter
           alia in Bloemfontein and conduct their secondhand trailer
           outlet under the trade name Trailstar.          The trailers were
           newly manufactured in 1998/1999 by Henred Fruehauf and
           the abovementioned chassis numbers allocated to the
           trailers. The trailers were manufactured as part of a batch
           of thirty eight (38) trailers for Paljas Trust."


[14] This ipse dixit by Botha is the total sum on the alleged merger
     between the appellant and Henred Fruehauf. Mr Reinders could
     not explain what the status of this amorphous Trailstar is, or
     what happened to the punted merger or what Mr Botha's quoted
     paras 5 and 6, immediately above, are designed to convey. If
     the trailers were manufactured in 1998/1999 as suggested by
     Botha and the merger between the two entities took place
     shortly afterwards then Trailstar, whatever the nature of its
     existence may be, became owner of the trailer in about 1999
     and not the appellant.           Loosely considered therefore the
     appellant became joint-owner of the trailers.         However, this is
     not what Mr Botha lately (on 18 July 2007) says. He speaks as
     director of the appellant and declares unequivocally that the
     appellant was the sole owner of the trailers when they were sold
     "during or about 2004" to P J Snyman. There is not a syllable
     about Trailstar or Henred Fruehauf's interest.
                                                                        12



[15] However that may be, the objective facts points to appellant
     becoming the registered owner of the vehicles only on 21 July
     2004.     I give a brief history of the trail of the trailers or the
     movement of the aluminium plates appended to the trailers.
     15.1 The appellant has attached Annexure D and E to its
             papers. These are “Certificate(s) of Registration in respect
             of Motor Vehicle (National Road Traffic Act, 1996)” in
             respect of the two trailers. The "Date of liability for first
             licensing (not year model)" is recorded as 03 March 1999.
             Then follows "used" and the "Date liable for registration" is
             reflected as 29 September 2000.         The owner is Kolaine
             Transport   CC.    The   registration   numbers/letters   are
             DMN622NW and DMN619NW and the registration office is
             Roodepoort.
     15.2 Annexure "C", produced by the appellant, is an invoice that
          was issued on 16 October 2000 showing that "Henred
          Fruehauf Trailers (Pty) Ltd" sold to "Kolaine Transport,
          Posbus 996, Badenhorst Street, Harrismith 9880" the
          trailers in question at a cost of R80 550.00 each (total
          R161 100.00 - exclusive of VAT).
     15.3 Annexure "F" is an invoice that shows that "Kolaine
          Transport CC t/a UniFreight” sold the trailers to "SA Truck
          Bodies, P O Box 6469, Bloemfontein" on 12 May 2004 for a
          combined price of R145 000.00 plus VAT of R20 300.00:
          Total R165 300.00.
     15.4 Annexure "G" shows that on 21 July 2004 the trailers were
          registered in the name of the appellant in Bloemfontein.
          This happened a mere six days before Thabo Sephula
                                                                               13


           cleared the vehicles for export. See para 8 (above). One
           would have expected the appellant to obtain sworn
           statements      from    both   Henred     Fruehauf     and   Kolaine
           Transport on what they know about the defaced chassis
           plates.    It is incomprehensible why appellant does not
           point     an   accusing    finger    at   Kolaine     Transport    or
           foreshadow recourse against that company because it (the
           appellant) seems to adopt a position that it acquired the
           trailers with the defaced chassis.


[16] The reason is not far to seek and will emanate from appellant's
     contradictory explanations or from those the company engaged
     to look into the tempering issue:
     16.1 Botha states in his deposition of 03 may 2006 (in para 9
           of that statement) that "during the period the trailers were
           in possession of Henred Fruehauf, and before the sale to
           Kolaine        Transport, certain repairs were done to the
           trailers and, amongst others, both trailers’ chassis were
           repainted. This        probably explains the damage to the
           identification plates which         led   to   the   suspicion    that
           [they] do not “belong to the chassis” but they “belong to
           the trailers and are the original identification plates.”
     16.2 On 16 August 2004 Mr Nicolaas Johannes De Meyer (De
           Meyer), the manager of the second-hand outlet at Henred
           Fruehauf, Wadeville, Germiston, wrote the following letter
           under his signature to Henred Fruehauf, a copy of which
           was subsequently furnished to Insp Tiedt by a Mr Lukas
           Bekker on the same date (Annexure CPH6):
           "This letter serves to confirm that the Superlink Trailer
                                                               14


    with the following chassi numbers: AAH088767PURF2122
    and AAH088742PUFJ261X were sold as a second hand
    trailer to Kolaine Transport CC t/a Unifreight. Please find
    attached the invoice made out to Kolaine Transport, with
    invoice nr. 1313 on the 18/10/2000.
    The trailer was repaired at the time and of which some
    parts of the chassis was replaced.    The chassis numbers
    were not punched in the chassis again, after the work had
    been done.
    The aluminium chassis plates where removed from the
    trailer when it was sandblasted and were put back on the
    trailer immediately after the sandblasting had taken place."
16.3 On 09 September 2004, thus after the trailers were
    impounded, De Meyer inspected the         trailers   at   the
    request of the appellant and reported, inter alia, that:
    "Daar is `n kraak op die linker beam van die onderstel van
    die A Bak wat herstel is. Daar is versterkings aangebring
    op die regter kant. Die Fabrieks onderstel plaatjies op die
    waens is oorspronklike Henred Freuhauf plaatjies.         Die
    plaatjies is voorsien van ses gaatjies.    Daar is duidelik
    skade aan al die gaatjies op die onderstel plaatjies.     Ek
    kannie sê wat die oorsaak van die skade is nie.      Volgens
    die Wet of Pad Vervoer moet alle voertuie gebou na 1997
    gekapte onderstel nommers sowel as o/stel nr plaatjies hê.
    Die betrokke waens is in 1999 gebou.            Ek kan nie
    verduidelik hoekom daar nie gekapte nommers of die
    waens is nie. Daar is grys verf sigbaar onder die rand van
    die onderstel plaatjie. Die waens was oorspronklik wit bo
    geverf en die onderstel was grys geverf. Die as nommers
                                                                        15


     word deur Henred op rekord gekoppel aan die onderstel nr
     wat toe geken word aan die wa."
     The De Meyer reports are plainly contradictory.
16.4 On 28 June 2004 the appraisal in respect of the trailers
     noted that as at the time of their delivery the chassis type
     and its condition were recorded as a single beam in good
     condition.    The "customer" who, I suppose, commissioned
     the appraisal is Uni Freight.
16.5 On 04 May 2005 Lucas Bekker, mentioned in para 15.2
     (above),     an    accountant    with      appellant   furnished    a
     statement to Supt Horak stating amongst others:
     "Daar is geen strukturiëlle werk deur S A Truck Bodies en
     of Trail Star op die waens gedoen nie. Die vervaardigers
     onderstel plaatjies is nie tydens die koop van die waens
     nagegaan nie.       Daar konnie gesê word wat die toestand
     van die onderstel plaatjies was toe die waens ontvang is.
     Daar was geen rede vir S A Truck en of Trail Star om die
     plaatjies te verwyder nie, en volgens my kennis is dit ook
     nie gedoen terwyl die waens in ons besit was nie. Ek het
     wel tydens die verkoop en oorhandiging van die waens
     opgemerk dat die plaatjies verwyder en terug gesit is. Ek
     kan nie verduidelik hoekom die plaatjies verwyder was en
     hoekom die gaatjies nie ooreenstem nie. --- Eerstens toe
     die waens beslag gelê is was dit reeds die eiendom van
     Pieter Snyman.       Trail Star het met verloop van tyd `n
     ooreenkoms met Pieter Snyman gesluit waarin Pieter
     krediet ontvang het op `n nuwe stel waens wat hy laat bou
     het   met    die   sluit   van   hierdie    ooreenkoms     het     die
     eienaarskap van die waens teruggekeer na Trail Star en dit
                                                                     16


           is die rede vir die hernude belangstelling en navrae." (My
           emphasis).


[17] This is an unequivocal statement by the appellant that:
     17.1 The trailers were confiscated in the hands or possession of
           Snyman; and
     17.2 That Snyman was the owner of the trailers when they were
           confiscated.
     Snyman could therefore not validly transact the sale agreement
     back to the appellant as he (Snyman) was then prohibited by law
     to posses or even own the trailers. Concomitantly the appellant
     could not acquire ownership title in the trailers, considering the
     content of a right of ownership.      The fact that appellant was
     previously the owner is immaterial.
     As the appellant was neither the owner nor the possessor
     of the vehicles he according lacked the locus standi to
     bring the application.


[18] This ruling should ordinarily end the matter. However, there is a
     second leg to the application.   It has to do with the fact that
     even if the appellant is the owner and has locus standi it still
     may not possess the trailers under their current condition.


[19] Snr Supt Daniel George Poolman submitted a statement in terms
     of s212 of the CPA.        He is attached to the Mechanical
     Engineering Section of the Ballistic Unit of the Forensic Science
     Laboratory as a Control Forensic Analyst in the service of the
     State.   He has 18 years experience in metallurgical analysis of
     which 12 years involved practical experience in forensic science
                                                                 17


at the Forensic Science Laboratory.         He has the requisite
academic qualification and has travelled, studied and trained
extensively abroad. His expertise was not called into question.
He stated, inter alia, that:
"During the execution of my duties on 16 May 2006, I
investigated a vehicle at Upington VIS SAP 13 Camp.            The
vehicle was pointed out to me by Insp Tiedt and is shown in
photo number 1. The particulars of the vehicle are as follows:
Model: SAE code S2 trailer; Registration number: BZV 948 FS;
Colour: Blue.I was requested to examine the vehicle in order to
determine the following:
4.1    Whether the chassis VIN number plate has been removed
and replaced on this vehicle.
4.2    Whether there exist any accident damage in the immediate
area of the VIN plate.
I physically examined the vehicle through a process that requires
knowledge in metallurgy and I determined the following:
5.1    The Chassis VIN number plate is situated on the chassis as
shown in photo number 2.        It is clear from the photo that the
corresponding holes in the chassis and the holes in the Vin plate
do not match.
5.2    Also note the damage to the VIN plate especially in the
areas of the rivets. Clear plastic deformation to the VIN plate is
visible.
5.3    The Chassis indicate no accident repair damage to the I-
beams.
From my finding I conclude that:
6.1    The VIN plate has been removed and replaced onto this
trailer.   The holes in the chassis and on the VIN plate do not
                                                                        18


     correspond.
     6.2   I am of the opinion that no accident damage exist on the
     chassis of this trailer."


[20] In his replying affidavit Botha says he takes notice of Poolman's
     report but denies its contents insofar it runs counter to
     applicant's   version.      Poolman’s   report   is   therefore   not
     controverted.    The colour photos Poolman allude to also show
     that the aluminium VIN plates were clearly tempered with.


     On a conspectus of all the evidence I am therefore
     satisfied that the chassis numbers were tempered.


[21] The   next question that falls for       determination    would be
     whether the appellants have shown that they had lawful cause
     to possess the trailers. On 19 June 2006 Horak wrote to
     appellant’s attorneys detailing a number of issues that have
     been raised with the appellant and are still outstanding or
     remain unanswered. Amongst others Supt Horak lists:
     21.1 "The failure to institute the SAPVIN process." In
           Marvanic Development v Minister of Safety &
           Security 2007(3) SA 159 (SCA) at 163B-C (para 11) Supt
           Horak's understanding of the legal position is vindicated
           where Lewis JA states:
           "11. This does not mean the appellants cannot recover the
           vehicles at all: it was common cause that they could have
           applied for what is termed a ‘SAPVIN’ number for each
           vehicle from the South African Police Services and that,
           when issued, they would be entitled to posses lawfully.
                                                                          19


           Regulation 56 of the National Road Traffic Regulations
           2000 provides the means for a vehicle owner (or person
           otherwise entitled to possess the vehicle) to obtain from
           the police new engine or chassis numbers where these
           have been tampered with, and a police clearance will be
           issued to the registering authorities. The regulation itself
           shows   precisely   what     s86(6)(b)    means:      until   the
           regulation has been complied with, possession by any
           person other than the police is without lawful cause. The
           appellants have apparently not applied to the police for
           new chassis numbers. The remedy is in their hands."


     21.2 "In terms of the Traffic Act, 93 of 1996, it is a requirement
           from 01 January 1996 that every chassis that have been
           manufactured must bear an embossed chassis number."
           The appellant’s De Meyer concede that the chassis number
           was not embossed and say he has no explanation for this
           failure. (See para 16.3 above). The forfeiture followed on
           09 February 2007 when, according to Horak, these
           requirements were not met. (See para 2 above).


[22] The Marnavic case was cited with qualified approval by a
     unanimous five Bench SCA panel in Basie Heckroodt Motors
     BK   t/a   Boulevard      Motors    v   Minister    of   Safety     and
     Security: Case     No     135/05    Delivered      28    March    2006,
     Unreported. The Court (per Mpati DP) stated in para 15 - 17:
     "15. I agree, however, with Lewis JA that the mischief that the
           Legislature sought to prevent was the possession of
           vehicles where there has been tampering with engine or
                                                                   20


      chassis numbers. The Legislature says that no person is to
      be in possession of a vehicle where there has been
      tampering with its engine or chassis number:               such
      possession is forbidden. A person who possess a vehicle of
      which the engine or chassis number has been tampered
      with is liable to a penalty (s89(1), read with s89(6)). And
      if that person is the owner, he/she cannot merely raise
      ownership as a defence in a criminal prosecution.        If, for
      example, he/she knew that there had been tampering with
      the vehicle’s engine or chassis number, a mere allegation
      of ownership of the vehicle would not earn him/her an
      acquittal. Something more would be required to constitute
      ‘lawful cause’ and thus for the owner to escape criminal
      liability. The appellant in this case relies on the fact that it
      was a bona fide purchaser (and thereafter owner), who
      even obtained clearances in respect of the vehicles from
      the SAPS. Although these factors, together with absence
      of knowledge of the tampering with or alteration to, the
      chassis numbers of the vehicles might well have secured
      the appellant’s acquittal had he been prosecuted, that
      would not have meant that he could continue to possess
      the vehicle. ---.
16.   Clearly then, the phrase ‘without lawful cause’ in s68(6)(b)
      of the National Road Traffic Act is aimed, in my view, at
      affording a person who is facing criminal prosecution for
      possession of a vehicle whose engine or chassis number
      has been tampered with, an opportunity to raise a defence
      of lawful possession to escape criminal liability.      It does
      not, where the possession was ‘with lawful cause’, provide
                                                                           21


           authority for, or a right to, continue possession of such a
           vehicle.     As I have said earlier, possession of a vehicle
           where there has been tampered with its engine or chassis
           number is forbidden: the National Road Traffic Act does
           not confer authority on anyone to allow it.
     17.   As stated by Lewis JA (for the majority) in Marvanic,
           supra,     Regulation   56    of   the   National   Road   Traffic
           Regulations 2000 provides the means for the owner of a
           vehicle (or a person otherwise entitled to possess the
           vehicle) to obtain from the police new engine or chassis
           numbers where these have been tampered with, and a
           police clearance in respect of such new numbers for
           purposes of obtaining, from the registering authority, a
           new registration certificate. Until that regulation has been
           complied with, possession of the two vehicles concerned in
           this matter will be without lawful cause, ie they cannot be
           returned to the appellant as it may not lawfully posses
           them s31(1)(a) if the Act."


[23] This Division had occasion to deal with the interpretation of s68
     (6)(b) in Minister Van Veiligheid & Sekuriteit v William
     Mark Delport NO & Another Case No 212/2002 (Kimberley),
     Delivered   on 15/09/2003, Unreported.           Majiedt J (Kgomo JP
     concurring) in para 8.3 of the judgment expressed himself as
     follows on the      meaning        of    "without    lawful      cause."
     (translated):
     "8.3 The English text of the provision in question refers to
     "without lawful cause." This phrase is, in my view, analogous to
     "without lawful authority" and also to "without lawful excuse."
                                                                     22


     In R v Lacey 1951(2) SA 48 (N) at 53B the court decided that
     "without lawful authority" means "unlawful." In a number of the
     erstwhile Southern Rhodesia courts it was similarly decided that
     the words "without lawful excuse" in the provisions of the Law
     and     Order (Maintenance) Act of 1960 (Southern Rhodesia)
     means "unlawful." See: R v Madanhe 1963(3) SA 482 (S.R) at
     484H -485H; R v Muchina 1963(4) SA 201 (S.R.) at 203 A-B;
     R v Jessie 1965(1) 325 (S.R., A.D.) at 327 A-C .             This
     construction as applied in the aforementioned decisions, in my
     view, supports the notion that "without lawful cause" bears the
     meaning of "nie onwettig nie" in s68(6)(b)". We then concluded
     that:
     "The mere restitution of the motor vehicle to 2nd respondent
     [Yvonne Selemogo] and the possession thereof by her would
     render her guilty to a contravention of the law as contemplated
     in s68(6)(b) read with s89(1) and 89(6) of the Traffic Act, 93 of
     1996."


[24] Adv Willem Coetzee, for the respondents in casu, has correctly
     submitted that the Northern Cape decision (Delport NO) does
     no violence in particular to the Basie Motors decision of the
     SCA and was therefore correctly decided.   I agree.


[25] In the result, even if the appellant had locus standi and was
     declared owner of the trailers they, nevertheless, could not be
     restored to the company as that would be in contravention of
     s68(6)(b) of the Traffic Act. To suggest that the prohibition of
     the possession of the mutilated chassis or engine does not apply
     on private property is fallacious. The prohibition obtains whether
                                                                      23


     the so-called owner wishes to dismantle the vehicle or melt it
     down. To hold otherwise would be to countenance lawlessness.


[26] The constitutional point mooted in para 4.4 (above) is stillborn.
     No case was made out before Moloi AJ for the postponement of
     the application for notices to be furnished to interested parties in
     terms of Rule 16 (A) of the Rules of Court. The Notice of Motion
     is silent on this aspect.


     ORDER
     The appeal is dismissed with costs.




_____________________
F DIALE KGOMO
JUDGE PRESIDENT
Northern Cape High Court, Kimberley



I concur.




_____________________
H J LACOCK
JUDGE
Northern Cape High Court, Kimberley
                                                            24



I concur.




_____________________
G N Z MJALI
JUDGE
Northern Cape High Court, Kimberley




On behalf of the Appellant:    Adv S J Reinders
Instructed by:                 Duncan & Rothman

On behalf of the Respondent:   Adv W Coetzee
Instructed by:                 State Attorneys, Kimberley

				
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