Court name
High Court of eSwatini
Case number
Civil Case 899 of 2003

Nkumane v Attorney General and Another (Civil Case 899 of 2003) [2003] SZHC 104 (04 November 2003);

Law report citations
Media neutral citation
[2003] SZHC 104
Coram
Maphalala, J









1


THE
HIGH COURT OF SWAZILAND


ZWAKELE
NKUMANE


Applicant


And


ATTORNEY
GENERAL


1st
Respondent


COMMISSIONER
OF POLICE


2nd
Respondent


Civil
Case No. 899/2003


Coram S.B.
MAPHALALA - J


For
the Applicant MR. J. MASEKO


For
the Respondents MR. DLAMINI (Attached


to
the Attorney General's Chambers)


JUDGEMENT
(4/11/2003)


Before
court is an application brought under a certificate of urgency for an
order inter alia directing the 2nd Respondent to release to the
Applicant a motor vehicle presently detained at Lobamba Police
Station or wherever it may be. The motor vehicle is a


2


Ford
Courier, a 1987 model with engine no. F6 - 265753, chassis number
NR-236219 and registration number SD 757 PG.


The
founding affidavit of the Applicant is filed in support of this
application. A confirmatory affidavit of one Musa Hlophe is also
filed. Annexure "21" being a court order by this court (per
Sapire CJ) dated the 28th May 1999, is also filed in support thereto.
Annexure "22" being extracts of a Blue book is also filed.


The
Swaziland Government opposes this application and the answering
affidavit of one 3167 Detective Constable Batinisty Mamba is filed.
The said officer is the Investigating Officer in this case. Various
annexures are filed viz "Bl" being change of ownership,
"B2" a detention order in respect of a motor vehicle in
terms of Section 16 of the Theft of Motor Vehicle Act No. 16 of 1991;
and "B3" a police report by the South African Police
Service compiled by a certain Inspector S.W. De Jager (0089888).
Confirmatory affidavits of 0621520 Detective Inspector A.Z. Phiri and
by Detective Inspector De Jager are also filed in opposition.


The
Applicant alleges that he is the lawful owner of the said motor
vehicle. He avers that the said motor vehicle was previously bearing
registration number, SD 473 IL and was changed to the present
registration number by one Musa Hlophe, a prospective buyer of same.
The said motor vehicle was once impounded by members of the Royal
Swaziland Police force on suspicion that it was stolen. The matter
came before this court which ordered that the motor vehicle be
released to him as he was the sole lawful owner of the motor vehicle.
A copy of the court order in Case Number 1833/98 is annexed as "21"
of the Applicants founding affidavit.


The
Applicant further avers that he thereafter purported to sell his
motor vehicle to one Musa Hlophe and as such the motor vehicle is
presently registered in his name. In this regard he attaches annexure
"22" being a copy of the registration book. He avers that
he is still the lawful owner of the motor vehicle in question since
the said Musa Hlophe has not fully paid the purchase price. It was
agreed between them that ownership would transfer from seller to the
buyer upon the latter paying the full purchase price.


3


During
the month of August 2003, his motor vehicle was impounded by one Mr.
Mamba, a police officer attached to the Car Theft Unit. The car was
impounded on suspicion that it was stolen. The said Mr. Mamba
promised to release the motor vehicle to Musa Hlophe upon conclusion
of the investigations. To date the said Mr. Mamba is refusing to
advise Musa Hlophe of the results of the police investigations.


Consequently,
the Applicant believes that police investigations have been finalized
but Mr. Mamba is wrongfully refusing to release his motor vehicle.


At
paragraph 13.1.1, 13.2 and 13.3 he alleges urgency.


Musa
Hlophe in his confirmatory affidavit confirms that the motor vehicle
was impounded by one Mr. Mamba, a police officer based in the Manzini
Police Station and attached to the Car Theft Unit. Hlophe further
confirms that the said Mr. Mamba has to date not advised him of the
results of the police investigations in respect of the

impounded
motor vehicle.


On
the other hand Detective Constable Mamba in the Respondents'
answering affidavit denies that the Applicant is the lawful owner of
the motor vehicle in that Applicant failed to furnish proof of
ownership of same. He avers that the motor vehicle in question was
brought before him by one Eric Matse for a police clearance. He
inspected the registration book (blue book) with number 116170 where
he noticed that it reflected the same official stamp. This raised a
suspicion that it was stolen. The officer further avers that they do
not have the original registration book in their possession.


He
then went on to inspect the motor vehicle where he noticed that the
engine numbers were tampered with. The engine block had been ground
and the numbers F 626575 were re-stamped on the ground surface. The
stamped engine number did not follow a straight line, thus
strengthening his suspicion that the motor vehicle was stolen.


He
further noticed that the tag numbers were not original in that they
were also re-stamped on the chassis of the vehicle with numbers NDAYL
0101 NR 236219. He


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noticed
that the tag itself was damaged when it was re-fitted. The corners of
the tag were out of position and that it had a dent around reverts.


As
a result of the above the officer seized and detained the said motor
vehicle in terms of Section 4 of the Theft of Motor Vehicles Act No.
10 of 1991. After the seizure of the motor vehicle a detention order
was sought for and was granted by the Senior Magistrate (Manzini) on
the 5th May 2003.


Upon
further investigation in collaboration with the South African Car
Theft Unit personnel, namely Detective Inspector Phiri the results
thereform have indicated that the identification numbers of the motor
vehicle had been obliterated and changed and false numbers inserted
on the engine and the chassis. This is reflected in annexure "B3"
being a report by the South African Police Service complied by one
Inspector De Jager on the 11th May 2003.


On
the question of urgency the officer denies Applicant's contention
that the reason why the matter should be treated as one of urgency is
that the motor vehicle is kept at the open thus exposed to sun and
rain. The motor vehicle in question was seized during the month of
August 2002. In any event, he avers that the Applicant has failed to
satisfy Rule 6 (25) (b) of the High Court Rules.


When
the matter came for arguments Mr. Maseko applied that the affidavit
of Detective Inspector De Jager be struck out as it was attested
before a Pupil Crown Counsel contrary to the provisions of the
Commissioner of Oath Act. The said affidavit was thus struck out with
the consent of counsel for the Respondent.


On
the merits Mr. Maseko contended that before the motor vehicle was
impounded by the police the Applicant was in lawful possession of
same by virtue of a court order annexed in his founding affidavit and
marked "21". The motor vehicle had been previously
impounded by the police on suspicion that it was stolen. The fact
that the engine number was tampered with was addressed by the court
and notwithstanding that, the court ordered that the motor vehicle be
released to him. Further that Section 4 of the Theft of Motor Vehicle
Act does not apply in this matter because the motor vehicle had been
released to him by the court after it was satisfied that the motor


5


vehicle
ought to be released to him. As to annexure "B" (detention
order) referred to by the Respondent he contended that it is a
nullity and has no legal force and effect by virtue of the fact that
it was not procured in compliance of Section 16 (1) (3) of the Theft
of Motor Vehicle Act/1991.


The
arguments advanced au contraire on behalf of the Respondent revolved
around the opposing papers. The gravamen of the defence is that the
said motor vehicle was seized in terms of Section 4 of the Theft of
Motor Vehicle Act.


It
appears to me that indeed the motor vehicle was seized and detained
in terms of Section 4 of the Theft of Motor Vehicle Act No. 16 of
1991. There is evidence before me that after the seizure of the motor
vehicle a detention order was sought for and granted by the Manzini
Senior Magistrate on the 5th May 2003. I accept what was said by
counsel for Respondent that the detention order filed in the papers
does not show the various extensions before the learned Magistrate
subsequent to the order of the 5th May 2003. I have no reason to hold
that counsel for the Respondent is not being truthful to the court in
this regard.


It
appears to me further that the investigations by the local police
officers in collaboration with their South African counterparts is
underway in respect of this motor vehicle.


For
the above reasons I dismiss the application with costs.


S.B.
MAPHALALA


JUDGE