CCT87/13

[2014] ZACC 14

2014 (7) BCLR 788 (CC)

2014 (5) SA 112 (CC)

2014 (2) SACR 325 (CC)

Madlanga J

14 November 2013

15 May 2014

http://hdl.handle.net/20.500.12144/3731

Application for leave to appeal against a judgment of the SCA: Ngqukumba v Minister of Safety & Security and Others (660/12) [2013] ZASCA 89; 2013 (2) SACR 381 (SCA) (31 May 2013). The case was previously heard in the Mthatha High Court: Ngqukumba v Minister of Safety and Security and Others (1354/2010) [2011] ZAECMHC 18 (20 October 2011).

Application for leave to appeal concerning the application of the common law spoliation remedy to vehicles with tempered chassis and engine numbers. Mr Ngqukumba (the applicant) was in possession of a motor vehicle. In 2010 members of the South African Police Service (SAPS) suspecting that the applicant’s vehicle was stolen, searched and seized it without either a warrant or consent. The engine and chassis numbers were found to have been tampered with in contravention of National Road Traffic Act 93 of 1996, which prohibits and criminalises possession of a tampered vehicle. The applicant approached the High Court seeking an order declaring the search and seizure unlawful, as well as restoration of the vehicle through the mandament van spolie (spoliation remedy). The High Court declared the search and seizure of the vehicle unlawful but held that the return of the vehicle is prohibited by the Act. Mr Ngqukumba was unsuccessful in the Supreme Court of Appeal and then approached the Constitutional Court. In a unanimous judgment, the Court held that the purpose of the spoliation remedy is to restore possession to an unlawfully deprived possessor, in order to preserve public order and to prevent self-help. The remedy is consonant with the rule of law, a founding value of the Constitution. The Court reasoned that the Act prohibits and criminalises possession of a tampered vehicle only if the possession is without “lawful cause”. Thus the return of a tampered vehicle to the person deprived of its Application for leave to appeal concerning the application of the common law spoliation remedy to vehicles with tempered chassis and engine numbers. Mr Ngqukumba (the applicant) was in possession of a motor vehicle. In 2010 members of the South African Police Service (SAPS) suspecting that the applicant’s vehicle was stolen, searched and seized it without either a warrant or consent. The engine and chassis numbers were found to have been tampered with in contravention of National Road Traffic Act 93 of 1996, which prohibits and criminalises possession of a tampered vehicle. The applicant approached the High Court seeking an order declaring the search and seizure unlawful, as well as restoration of the vehicle through the mandament van spolie (spoliation remedy). The High Court declared the search and seizure of the vehicle unlawful but held that the return of the vehicle is prohibited by the Act. Mr Ngqukumba was unsuccessful in the Supreme Court of Appeal and then approached the Constitutional Court. In a unanimous judgment, the Court held that the purpose of the spoliation remedy is to restore possession to an unlawfully deprived possessor, in order to preserve public order and to prevent self-help. The remedy is consonant with the rule of law, a founding value of the Constitution. The Court reasoned that the Act prohibits and criminalises possession of a tampered vehicle only if the possession is without “lawful cause”. Thus the return of a tampered vehicle to the person deprived of its Application for leave to appeal concerning the application of the common law spoliation remedy to vehicles with tempered chassis and engine numbers. Mr Ngqukumba (the applicant) was in possession of a motor vehicle. In 2010 members of the South African Police Service (SAPS) suspecting that the applicant’s vehicle was stolen, searched and seized it without either a warrant or consent. The engine and chassis numbers were found to have been tampered with in contravention of National Road Traffic Act 93 of 1996, which prohibits and criminalises possession of a tampered vehicle. The applicant approached the High Court seeking an order declaring the search and seizure unlawful, as well as restoration of the vehicle through the mandament van spolie (spoliation remedy). The High Court declared the search and seizure of the vehicle unlawful but held that the return of the vehicle is prohibited by the Act. Mr Ngqukumba was unsuccessful in the Supreme Court of Appeal and then approached the Constitutional Court. In a unanimous judgment, the Court held that the purpose of the spoliation remedy is to restore possession to an unlawfully deprived possessor, in order to preserve public order and to prevent self-help. The remedy is consonant with the rule of law, a founding value of the Constitution. The Court reasoned that the Act prohibits and criminalises possession of a tampered vehicle only if the possession is without “lawful cause”. Thus the return of a tampered vehicle to the person deprived of its Application for leave to appeal concerning the application of the common law spoliation remedy to vehicles with tempered chassis and engine numbers. Mr Ngqukumba (the applicant) was in possession of a motor vehicle. In 2010 members of the South African Police Service (SAPS) suspecting that the applicant’s vehicle was stolen, searched and seized it without either a warrant or consent. The engine and chassis numbers were found to have been tampered with in contravention of National Road Traffic Act 93 of 1996, which prohibits and criminalises possession of a tampered vehicle. The applicant approached the High Court seeking an order declaring the search and seizure unlawful, as well as restoration of the vehicle through the mandament van spolie (spoliation remedy). The High Court declared the search and seizure of the vehicle unlawful but held that the return of the vehicle is prohibited by the Act. Mr Ngqukumba was unsuccessful in the Supreme Court of Appeal and then approached the Constitutional Court. In a unanimous judgment, the Court held that the purpose of the spoliation remedy is to restore possession to an unlawfully deprived possessor, in order to preserve public order and to prevent self-help. The remedy is consonant with the rule of law, a founding value of the Constitution. The Court reasoned that the Act prohibits and criminalises possession of a tampered vehicle only if the possession is without “lawful cause”. Thus the return of a tampered vehicle to the person deprived of its Application for leave to appeal concerning the application of the common law spoliation remedy to vehicles with tempered chassis and engine numbers. Mr Ngqukumba (the applicant) was in possession of a motor vehicle. In 2010 members of the South African Police Service (SAPS) suspecting that the applicant’s vehicle was stolen, searched and seized it without either a warrant or consent. The engine and chassis numbers were found to have been tampered with in contravention of National Road Traffic Act 93 of 1996, which prohibits and criminalises possession of a tampered vehicle. The applicant approached the High Court seeking an order declaring the search and seizure unlawful, as well as restoration of the vehicle through the mandament van spolie (spoliation remedy). The High Court declared the search and seizure of the vehicle unlawful but held that the return of the vehicle is prohibited by the Act. Mr Ngqukumba was unsuccessful in the Supreme Court of Appeal and then approached the Constitutional Court. In a unanimous judgment, the Court held that the purpose of the spoliation remedy is to restore possession to an unlawfully deprived possessor, in order to preserve public order and to prevent self-help. The remedy is consonant with the rule of law, a founding value of the Constitution. The Court reasoned that the Act prohibits and criminalises possession of a tampered vehicle only if the possession is without “lawful cause”. Thus the return of a tampered vehicle to the person deprived of its possession would not necessarily be unlawful. An enquiry into lawfulness of possession would defeat the purpose of the spoliation remedy. The Court held that, in combating and preventing crime, SAPS too must observe the law. The Constitutional Court ordered the return of the vehicle to the applicant. Judgment: Madlanga J (unanimous).