On 12 August 2015, Warrant Officer Van Staden of the Vryburg Police received information from the Kimberley Organised Crime Unit that a suspect arrested with two cheetah cubs had stated he was acquiring a third cub from the applicant, Stoltz, at his farm Dieprivier, Vorstershoop. Van Staden and Constable Setatwe proceeded to the farm, broke the gate padlock, and conducted a warrantless search. They found and seized: a cheetah cub (a protected species under the National Environmental Management Biodiversity Act 10 of 2004), rifles and firearm accessories, a firearm silencer, a dart gun, and animal medication (Zoletil). The firearms were found unsecured in the house. Van Staden was informed the applicant had been declared unfit to possess firearms in 2011 or 2012. The applicant launched a mandament van spolie application for return of the seized items. The respondents opposed the application, arguing the search and seizure was lawful under section 22(b) of the Criminal Procedure Act 51 of 1977.
1. It is declared that the warrantless search carried out on 12 August 2015 on the applicant's farm was unlawful as regards items (1), (4), (7), (9), (10), and (11) on the list (the cheetah cub and animal medicines). 2. The respondents are ordered to return these items to the applicant forthwith. 3. The respondents are ordered to pay the applicant's costs jointly and severally, the one paying the others to be absolved. 4. The court noted that the order does not constitute authority to possess the cub or medicines.
In proceedings for a spoliation order (mandament van spolie), items seized by police must be returned to the despoiled person before any enquiry into the lawfulness of possession, even where possession may ultimately be shown to be unlawful. For a warrantless search under section 22(b) of the Criminal Procedure Act to be lawful, police must have reasonable grounds for believing: (1) that a search warrant would be issued if applied for, which requires reasonable grounds for believing the item is concerned in or evidence of an offence; and (2) that delay in obtaining a warrant would defeat the search object. Where an activity (such as possessing a protected species) may be lawful with a permit, police must have objective grounds for believing the person lacks the required permit, not merely that the item is present. The onus of proving the lawfulness of a warrantless search and seizure rests on the state.
The court noted that its order does not constitute authority for the applicant to possess the cheetah cub or the medicines, indicating that their return is procedural under the spoliation remedy and does not determine the ultimate lawfulness of possession. The court observed that it is technically impossible to commit both the offence of failing to store a firearm properly (which requires being a license holder) and unlawfully possessing a firearm (which applies to non-license holders) simultaneously. The court also commented that it is self-evident that if a suspect receives notice of an impending search, it is likely they will remove or destroy evidence sought, supporting the urgency requirement for warrantless searches.
This case affirms the application of the Constitutional Court's decision in Ngqukumba v Minister of Safety and Security regarding the mandament van spolie remedy in the context of police seizures. It confirms that even where possession may ultimately prove unlawful, the despoiler (including state authorities) must restore possession before enquiring into the lawfulness of possession. The case also clarifies the requirements for lawful warrantless searches under section 22(b) of the Criminal Procedure Act, emphasizing that police must have reasonable grounds for believing not only that the item will be found, but also that it is connected to an offence. The judgment demonstrates that general suspicion is insufficient where the activity (such as possessing a protected species) may be lawful with a permit, and police must have objective grounds for believing the permit is absent.