Johannesburg - The Constitutional Court is expected to rule on Thursday whether property confiscated through unlawful search and seizure operations should be returned where possession of that property would be illegal.
In November, the Constitutional Court heard this application for leave to appeal against a judgment of the Supreme Court of Appeal.
In February 2010, a Mr Ngqukumba was using a car in his possession as a taxi when police, who suspected the vehicle was stolen, searched and seized it.
The police had neither a warrant nor Ngqukumba's consent. Investigations later revealed signs that the vehicle was stolen. Police refused to restore the car to Ngqukumba.
He approached the High Court for an order declaring the search and seizure unlawful and the return of the vehicle as a remedy for being unlawfully deprived of it.
The High Court declared the search and seizure unlawful and set it aside, but found that return of the vehicle would not be in accordance with the National Road Traffic Act.
The court ruled that the police should retain the vehicle until it had been cleared and registered under the Act.
Ngqukumba appealed to the Supreme Court of Appeal, but it was dismissed.
Ngqukumba's application to the Constitutional Court relied on the principle of mandament van spolie, a spoilation remedy to restore possession of property to a person who has unlawfully been deprived of it.
He argues that the underlying principle for such a remedy is to restore the property to the person it was seized from, regardless of that person's actual rights to possession. The consideration of the lawfulness of possession is contrary to this principle, he maintains.
The police oppose this, arguing that the spoilation remedy cannot override laws enacted to address possession of vehicles with irregular features.
The police argue that a court cannot authorise criminal conduct or compel a person to perform an illegal act, which would result if the Constitutional Court ordered the release of the vehicle, which has not been properly cleared and registered.