ConCourt orders return of seized taxis

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IOL pic may14 justice scales file Independent Newspapers .

Cape Town - A Mthatha man will get his minibus taxi back from the police after the Constitutional Court ruled on Thursday that he had been unlawfully deprived of it.

Police suspected Anele Ngqukumba's vehicle had been stolen and searched and seized it in February 2010, without a warrant or his consent.

Upon inspecting the vehicle, they found the engine and chassis numbers were tampered with, indicating it was likely to have been stolen.

The SAPS refused to give the minibus back to Ngqukumba on the grounds that it was a crime to possess a tampered-with vehicle, in terms of the National Road Traffic Act.

He applied to the Eastern Cape High Court in Mthatha to have the search and seizure declared unlawful. He also wanted an order for the vehicle to be returned through the common-law remedy of mandament van spolie. This remedy restores possession of property to a person unlawfully deprived of a possession.

The high court declared the search and seizure unlawful and set it aside.

However, it found that returning the vehicle would conflict with the act, and declared that the police keep it until it had been cleared and registered under the act.

Ngqukumba appealed in the Supreme Court of Appeal, but this was dismissed in May last year.

The Constitutional Court then heard the matter against the police minister, the Mthatha police station commander, and the commanding officer of the Mthatha vehicle pound in November last year.

The court ordered the return of the vehicle in a unanimous judgment on Thursday, written by Justice Mbuyiseli Madlanga.

It reasoned that the main purpose of the common-law remedy was to preserve public order and to prevent self-help, regardless of whether an individual or government entity took the possession.

The court emphasised that the road traffic act only criminalised possession of a tampered-with vehicle if the possession was without unlawful cause.

Therefore, returning a tampered-with vehicle to a person would not necessarily be unlawful and the lawfulness of possession should then not be enquired into.

The court noted that although the police played an important role in combating and preventing crime, it too had to act in terms of the law.

Sapa



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