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Reportable: YES / NO Circulate to Judges: YES / NO Circulate to Magistrates: YES / NO

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 …..............1^st Respondent

SENIOR SUPERINTENDENT

CHRISTO PETRUS HORAK ….......................................2^nd 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 Nelson Mandela Streets, Windhoek.

1. Upon certain investigations having been instituted and followed, which I advert to fully later, Superintendent Christo Petrus Horak informed the appellant’s attorneys, M^cIntyre 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 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 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 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 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. 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.

7. 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 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.”

7. 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. 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."

7. 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.

7. 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 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.”

7. 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 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."

7. 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.

7. 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 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 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 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 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 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 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. 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 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 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." 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 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

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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