FSA Transport (Pty) Ltd v The Station Commander Cape Town Central Vehicle Crime Investigation Unit South African Police Services and Another

FSA Transport (Pty) Ltd, a transport business, owned a 10-wheeler truck that was in a collision in January 2024. The truck was restored with a new engine and cab, and the VIN number plate was removed during restoration. The truck was sold to a logistics company. In May 2024, when a representative sought a police clearance certificate for the new engine, the police seized the truck on grounds that the engine or chassis numbers had been tampered with, there was suspicion the vehicle was stolen, and charges of theft and possession of suspected stolen property were being investigated. The police version stated that the VIN number plate of the cab and chassis rail differed. The applicant replaced the VIN number on the new cab using the old cab's number. A senior public prosecutor declined to prosecute for perjury and instructed the truck's return. However, a senior police official intervened and refused to release the truck, citing the need for further investigation. The applicant approached the High Court on an urgent basis seeking a rule nisi for the truck's return. On 18 June 2024, the court granted final relief, ordering the police to immediately release the truck and issue a clearance certificate, despite the applicant only seeking interim relief. The police lodged an application for leave to appeal, which was refused, and then petitioned the Supreme Court of Appeal. The applicant then sought an enforcement order under section 18 of the Superior Courts Act to prevent suspension of the 18 June 2024 order pending the appeal.

• Whether exceptional circumstances as envisaged in sections 18(1) and 18(3) of the Superior Courts Act 10 of 2013 existed to grant an enforcement order preventing suspension of the judgment pending appeal.
• Whether the applicant would suffer irreparable harm if the enforcement order was not granted.
• Whether the police would suffer irreparable harm if the enforcement order was granted.
• What the prospects of success on appeal were, considering the court may have granted final relief when only interim relief was sought.
• Whether the police acted unlawfully when seizing the truck, which was a live issue in the pending petition.

The application was dismissed. Costs were ordered to stand over for later determination due to the pending petition.

For an enforcement order under section 18(3) of the Superior Courts Act, an applicant must prove on a balance of probabilities that exceptional circumstances exist, that they will suffer irreparable harm if the order is not made, and that the other party will not suffer irreparable harm if the order is made. The prospects of success on appeal are also a relevant consideration. Where the lawfulness of a seizure by police is a live issue on appeal, and the applicant fails to demonstrate these requirements, the exceptional relief of an enforcement order will not be granted.

Even if the court erred in dismissing the application, an order in favour of the applicant would be of little comfort because the police would be entitled to an automatic appeal to a full court under section 18(4), and such order would automatically be suspended pending that appeal. The court also noted that counsel for the police placed on record that if the petition fails, the vehicle will immediately be returned to the applicant.

This case illustrates the stringent requirements for obtaining an enforcement order under section 18 of the Superior Courts Act, emphasising that it is an extraordinary deviation from the standard rule that judgments are suspended pending appeal. It also clarifies the distinction between possession of a tampered vehicle and the lawfulness of police seizure for purposes of spoliation and enforcement proceedings, distinguishing the Constitutional Court's approach in Ngqukumba.