Anthonie Christopher Lombard v Fort Hare University and Minister of Police

The applicant, a cattle trader, purchased 36 head of cattle from UFH (First Respondent) for R196,374 on 1 November 2022, dealing with Mr Dirk Potgieter who purportedly represented UFH. Removal certificates were provided and the cattle were delivered to Stanford Park farm. On 27 October 2023, UFH employee Brian Mthembu visited Stanford Park under pretence of buying cattle, then returned with SAPS (Second Respondent) and removed 13 head of cattle without a warrant. UFH's investigation revealed that Potgieter had been selling cattle without approval from the Animal Ethics Committee or Farm Committee, in contravention of UFH policies. UFH suspended Potgieter and laid a charge of stock theft. SAPS Warrant Officer Zono removed the cattle based on reasonable suspicion of theft, noting it was a Friday afternoon and he believed the cattle would be sold or removed if he waited until Monday to obtain a warrant. The applicant asserted he paid market-related prices and had always dealt with Potgieter in prior transactions. He had already sold more than half of the original herd.

• Whether the applicant was unlawfully deprived of possession of the cattle and entitled to a spoliation order
• Whether SAPS complied with section 22(b) of the Criminal Procedure Act 51 of 1977 when seizing the cattle without a warrant
• Whether the requirements of section 22(b)(i) and (ii) were met - reasonable grounds to believe a warrant would be issued and that delay would defeat the object of the search
• Whether UFH was entitled to an interlocutory interdict preventing the applicant from disposing of the cattle pending criminal investigation

The court granted the spoliation order requiring the respondents to return the 13 head of cattle to the applicant at Stanford Park farm within 48 hours. The respondents were ordered to pay the applicant's costs jointly and severally on scale B. The court also granted UFH's counter-application for an interlocutory interdict restraining the applicant from selling or disposing of the cattle pending conclusion of the criminal investigation (Alice CAS 130/10/2023), NPA decision, or other court order, but limited to six months from date of judgment. The applicant was ordered to keep the cattle safe, well-fed and in good condition. Each party was to pay its own costs regarding the counter-application.

For a warrantless search and seizure to be lawful under section 22(b) of the Criminal Procedure Act, both subsections (i) and (ii) must be satisfied. It is insufficient that a police official has reasonable grounds to believe a warrant would be issued - there must also be reasonable grounds to believe that delay in obtaining a warrant would defeat the object of the search. A reasonable belief cannot be based merely on the police official's subjective view; it must be supported by objective evidence. Where the police fail to meet the requirements of section 22(b), the seizure is unlawful and a spoliation order must be granted to restore possession, regardless of questions of ownership or lawful entitlement. Even where a spoliation order is granted, an interlocutory interdict may be appropriate to protect a third party's prima facie rights pending investigation, provided all requirements are met, but such relief should be time-limited to avoid indefinite restriction on property rights.

The court noted that W/O Zono could have contacted the applicant for an explanation of his possession under section 2 of the Stock Theft Act 57 of 1959 before seizing the cattle. The court also clarified that this case did not involve an anti-dissipation order as discussed in Knox D'Arcy Ltd v Jamieson, since UFH was not attempting to prevent the applicant from disposing of assets to defeat creditors, but rather seeking to preserve specific property to which it asserted a claim. The court observed that Mr Mthembu's visit under pretence of being a buyer would likely have persuaded the applicant to keep the cattle in place rather than spirit them away. The judgment noted that while UFH's evidence regarding market values and policy breaches lacked generous detail, this was understandable given the need to avoid undermining pending criminal proceedings.

This case provides important guidance on the application of section 22(b) of the Criminal Procedure Act 51 of 1977, particularly the requirement that delay in obtaining a warrant would defeat the object of a search. It confirms that the mere assertion by a police official that evidence might disappear is insufficient - there must be objective reasonable grounds supported by evidence. The judgment reinforces the principle from Ngqukumba v Minister of Safety and Security that spoliation orders are available against the police where goods are seized unlawfully, even when acting under colour of statutory authority. It also demonstrates the court's balancing approach where both parties have legitimate interests - granting the spoliation order to remedy unlawful dispossession while providing interim protection to the potentially defrauded party through a time-limited interdict. The judgment illustrates proper application of the Webster v Mitchell and Gool v Minister of Justice tests for interlocutory interdicts.