Court name
High Court of eSwatini
Case number
Civil Case 1811 of 2003

Nxumalo v Commissioner of Police and Another (Civil Case 1811 of 2003) [2003] SZHC 92 (24 September 2003);

Law report citations
Media neutral citation
[2003] SZHC 92
Coram
Nkambule, J









HIGH
COURT OF SWAZILAND


CIVIL
CASE NO. 1811/03


In
the matter between:


SENZO
NXUMALO APPLICANT


and


THE
COMMISSIONER OF POLICE 1st RESPONDENT


THE
ATTORNEY GENERAL 2ND RESPONDENT


CORAM K.P.
NKAMBULE

-
J


FOR
APPLICANT S.V. MDLADLA


FOR
RESPONDENT ATTORNEY GENERAL


RULING


24/9/03


In
this application the applicant seeks an order in the following terms:


1. That
the rules pertaining to service and time limits be dispensed with and
that this matter enrolled as one of urgency.


1


2. That
the respondent be ordered forthwith to return to applicant the
vehicle fully described hereunder:


MAKE: ISUZU
KB SERIES


ENGINE
NO: 4 JB 3666022


CHASIS
NO: ADMTFR 55 DFM 833970


COLOUR
: BLUE


REGISTRATION
NO: PJM 298 GP


3. That
a rule nisi do hereby issue returnable on a date to be stated by the
court why prayer 2 should not be made final.


4. Costs
of the application in the event it is opposed.


5. Further
and/or alternative relief.


The
applicant has filed a founding affidavit in support of the
application. The respondent has filed an answering affidavit in which
they are

opposing
the application.


According
to the founding affidavit the applicant proceeded to South Africa
where he purchased the above-mentioned motor vehicle. The motor
vehicle was cleared by the South African Police in terms of the law -
per Annexure 'A' of the application. Also annexed with the
application is the registration documents of the motor vehicle
obtained by the applicant where he bought the motor vehicle.


On
7th July 2003 whilst respondent was at home police came and
confiscated the motor vehicle. It has been in the hands of the police
ever since.


2


The
respondent submits that the applicant is not the registered owner of
the motor vehicle. The registration document reflects one SHILALUKE
ST with identity 6303275381087 as the registered owner.


Respondent
further contends that the applicant has failed to produce any
declaration or certificate stamped by a Custom officer as per the
Theft of Motor Vehicle Act 16/1991. The respondent states that the
motor vehicle was seized in accordance with Act 16/ 1991.


Respondent
avers that the motor vehicle is held on the strength of a lawful
detention order. He states that the detention order was obtained on
7th July, 2003 and is valid for three months.


In
replication applicant's attorney has filed a replication on points of
law. Annexed with the affidavit there is Annexure 'A', a declaration
by the owner of the motor vehicle which states as follows:


"I
gave a car m/v Isuzu KB 280 DT Blue in colour. Registration PJM 288
GP. It is in his possession in Swaziland with its papers to Mr. Senzo
Nxumalo".


This
declaration was made on 31st July 2003 by the owner of the car Mr.
SIKHETHO THOMAS SHILALUKE OF BRAKPAN. REPUBLIC OF SOUTH AFRICA. It
was commissioned at Brakpan Police Station.


From
the foregoing documents it is clear that the motor vehicle described
in the Notice of Motion was indeed in the lawful possession of the
applicant when taken from him.


However,
it is disputed whether this motor vehicle is the one which was
detained by the police. The identity of the motor vehicle confiscated
by


3


the
police does not answer the description of this motor vehicle as
reflected on the Notice of Motion. This therefore, creates a dispute
as to the identity of the motor vehicle in question.


This
dispute cannot be resolved on application. The court therefore,
orders that viva voce evidence be led. At this stage the court will
not make any pronouncement as to costs.


K.P.
NKAMBULE


JUDGE


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