UCHENA
J:
The applicant is the registered owner of a Toyota Chasser motor vehicle
registration number ABL 2611. It was registered in her name on 9 November 2009. The first
respondent is the Minister of Home Affairs cited in his official capacity as
the Minister responsible for the Zimbabwe Republic Police.
The
second respondent is the Commissioner General of the Zimbabwe Republic Police,
cited in his official capacity as the head of the Zimbabwe Republic Police. The
third respondent is the investigating officer of the frauds, whose proceeds are
believed to have been used to purchase the motor vehicle in question.
The
applicant's motor vehicle was on 8
April 2010, seized by the third respondent without a warrant. It
was seized because the police had information that it had been bought with
proceeds from frauds committed by the applicant's brother Roderick Chongo
against his employer FBC Banking Limited Mutare. The frauds are being
investigated by the third respondent under Mutare Central CR'S 07/02/10, 41/02/10 and 42/02/10.
The
third respondent's investigations had by the time he seized the applicant's
motor vehicle established that the applicant had on two occasions been given
large sums of money by her brother who is now on the run to buy a house and
household goods in her own name. The agreement of sale states that the
applicant is the purchaser. The applicant had confessed to the police in an
affidavit that the house belonged to her brother who asked her to purport to be
the buyer on his behalf.
The
applicant applied to this court for a provisional order, ordering the
respondents to release the motor vehicle to her on the ground that the third
respondent had unlawfully seized it without a warrant. She further said that
she did not consent to its seizure.
The
third respondent does not dispute seizing the motor vehicle without a warrant.
He in para 4 of his opposing affidavit says:
"I hold a
reasonable suspicion that this vehicle is the product of the proceeds of a
fraud which is under investigation under Mutare Central CRs 07/02/10, 41/02/10,
and 42/02/10, and I believe that a warrant which I have already applied for
will be issued to me thus the seizure can not at this particular point be
pronounced unlawful."
Mr
Gama for the applicant submitted that
the seizure of property without a warrant must be in terms of s 51 (1) (b) of
the Criminal Procedure and Evidence Act [Cap
9:07],
herein after called the CP & E Act, which provides as follows:
"(1) A police officer may, without warrant,
search any person or container or premises for the purposes of seizing any
article referred to in section forty-nine and additionally, or
alternatively, seize any such article-
(a) if the person
concerned consents to the search for and additionally, or alternatively, the
seizure of the article in question or if a person who may consent to the search
of the container or premises consents to such search and additionally, or
alternatively, the seizure of the article in question; or
(b) if he on
reasonable grounds believes that-
(i) a warrant would be issued to him in
terms of paragraph (a) of subsection (1) of section fifty if he
applied for one; and
(ii) the delay in obtaining a warrant would
prevent the seizure or defeat the object of the search, as the case may be".
He submitted that there was no
basis for the seizure of the motor vehicle without a warrant as the applicant
had given the third respondent a certified copy of the motor vehicle's
registration book.
Mr Musika for the respondents submitted that the seizure was in terms
of s 51 (1) (b) (i) and (ii) of the CP&E Act, as the third respondent believed on reasonable grounds that the
warrant he had applied for would
be issued.
A seizure without a warrant in
terms of s 51 (1) (b) must satisfy the two requirements of s 51 (1) (b) (i) and
(ii) of the CP&E Act. The officer effecting the seizure must on reasonable
grounds believe that, a warrant would be issued to him in terms of para (a)
of subs (1) of section fifty if
he applied for one; and the delay in obtaining a warrant would prevent the
seizure or defeat the object of the search, as the case may be.
In this case Mr Gama submitted that the third respondent
did not have reasonable grounds for believing that the delay in obtaining a
warrant would prevent the seizure or defeat the object of the search as the
third respondent had just before the seizure been given a certified copy of the
motor vehicle's registration book.
I agree with Mr Gama that seizure without a warrant is
only permissible if the two requirements of s 51 (1) (b) (i) and (ii) are met.
In this case the first requirement is satisfied by the third respondent's
narration of the basis of his suspicion that the applicant was being used by
her brother to spend proceeds of the frauds on properties which were being
registered in her name. The third respondent was therefore justified in
believing that the applicant had also been used by her brother to purchase and
register the motor vehicle in her name. That modus operandi between
the applicant and her brother had been established by her deposing an affidavit
Annexure C to the third respondent's opposing affidavit in the presence of her
legal practitioner, in which she agreed to having bought the house mentioned in
Annexure B for her brother in her own name. She had again been given money by
her brother to buy household goods from the seller of the house. A total of
US$137 000-00 cash was spend on the house and household goods. She had also
during the relevant period bought a stand in Goromonzi for US$25 000-00. The
third responded had also established that the applicant did not during the
relevant period have such large sums of money in her bank account. See annexure
E to the third respondent's opposing affidavit. The Goromonzi stand was bought
on 8 October 2009.
The Marlbrough house was bought on 12 December 2009. The motor vehicle in issue was
registered in the applicant's name on 9 November 2009. The cumulative effect justifies the third
respondent's suspicion that proceeds of frauds were used to buy the motor
vehicle in question. and that if he applied for a warrant of seizure on those
facts it would be granted. If, that was all that he had to prove he would have
been able to defend his seizure of the motor vehicle without a warrant.
The use of the word "and" at
the end of s 51 (1) (b) (i), and before s 51 (1) (b) (ii), means the
requirements of both subss, (i) and (ii), must be satisfied before a seizure
without a warrant can be lawful.
An examination of the third respondent's
opposing affidavit however reveals that he did not deal with the effect of the
delay in seizing the motor vehicle while awaiting the issuance of a warrant of
seizure. That leaves the issue of the effect of delay unexplained, and the
seizure can not in the absence of that explanation stand. In the case of Hako v Minister of Safety & Security & Anor 1996 (2) SA 891 (TK) @
897 MILLER AJ commenting on the South African provision on seizure without a
warrant identical to ours said:
"Lieutenant Colonel Westraad also avers that the
seizure was performed in terms of s 22 (b) (i) of the Criminal Procedure Act.
He gives no reasons or explanation as to why the police officials did not
obtain a search warrant prior to the seizure. Section 22 (b) (i) cannot be read
in isolation - it must be read together with s 22 (b) (ii). This is so because
of the word "and" which appears immediately after s 22 (b) (i). There is
absolutely nothing on record to suggest that a delay in obtaining a search
warrant would defeat the object of the search."
See also the case of Ndlovu
v Minister of Police, Transkei, & Ors 1993 (3) SA 91 (TK)
In this case the absence of an
explanation of the effect of a delay in seizing the motor vehicle, while
awaiting the issuance of a warrant of seizure is fatal. The application for the
provisional order must therefore be granted.
I could however not loose sight
of the fact that the third respondent had in his opposing affidavit said he had
before seizing the motor vehicle applied for a warrant of seizure. It became
necessary to find out the result of that application, because if a warrant of
seizure was granted, before the seizure; it might have an effect on the order
this court has to grant. The parties were called back for them to clarify whether
or not the warrant was issued and when it was issued. Mr Musika for the respondents confirmed that it was, and produced it
as exh 1, by consent. The warrant of seizure was issued by a magistrate on 20 April 2010. It was
therefore issued twelve days after the applicant's motor vehicle had been
seized without a warrant. The warrant does not have retrospective effect. It
could only have been acted upon after it was issued. It therefore took effect
from 20 April 2010
onwards.
A reading of s 50 (1) and (2)
confirms that a warrant takes effect from the time it is issued. Section 50 (1)
and (2) provides as follows;
"(1) Subject to sections fifty-one, fifty-two
and fifty-three, an article referred to in section forty-nine shall
be seized only by virtue of a warrant issued-
(a) .
(b)
.
(2) A
warrant issued in terms of subsection (1) shall require a police officer to
seize the article in question and shall to that end authorize such police
officer, where necessary-
(a) to search any
person identified in the warrant; or
(b) to enter and
search any premises identified in the warrant, or any premises within an area
identified in the warrant, and to search any person found upon or in those
premises."
Section 50 (1) clearly states
that an article "shall be seized only by virtue of a warrant issued". This
means the warrant must be in existence before the seizure. Section 50 (2)
clarifies the above by stating, that "a warrant issued in terms of subs (1)
shall require a police officer to seize the article in question and shall to
that end authorize such police officer, where necessary". Therefore the warrant
must pre-exist the seizure for it to, "require a police officer to seize the
article", and authorise such officer to search persons and enter premises where
necessary. The police officer must in those circumstances ascertain from the warrant,
the extent of the authority it gives him.
In this case there is a clear
distinction between the third respondent's conduct on 8 April 2010 when he
clearly acted without a warrant, and what he may do in future in terms of the warrant issued on 20 April 2010.
Mr Gama
and Mr Musika agreed that the issue
of the granting of an application for a warrant for the seizure of the
applicant's motor vehicle will be the subject of separate litigation. That
however does not affect the determination of this case, as the parties in this
application only dealt with the seizure of the motor vehicle without a warrant.
This court's decision must therefore only determine that issue and no other.
I will therefore grant the interim order sought in
terms of the draft order.
In the result it is ordered as follows.
Pending the finalization of this matter, the applicant is
granted the following order:
The respondents, be and are
herby ordered to release into the applicant's custody a Toyota Chasser motor vehicle
registration number ABL 2611.
Madzivanzira, Gama
& Associates, applicant's legal practitioners.
Civil Division of the
Attorney General's Office, respondents' legal
practitioners.