Minister of Police v Khoeli

On 15 May 2017, 44 cattle branded with respondent Khoeli's registered animal identification mark were seized by Captain Wessels in Hobhouse, Free State, under section 20 of the Criminal Procedure Act 51 of 1977 (CPA). On 16 May 2017, the respondent and two others were arrested for contravening section 32(1)(m)(iii) read with section 6(1)(a) of the Animal Diseases Act 35 of 1984, for importing or conveying cattle in the Republic without the requisite permit. On 17 May 2017, the respondent paid an admission of guilt fine. On 30 May 2017, the SAPS declared all 44 cattle forfeited to the State without notice to the respondent. Unaware of the forfeiture, the respondent obtained a magistrate's court order restoring the cattle to him, which was subsequently set aside by the High Court on 6 November 2017 for lack of jurisdiction. On 7 November 2017, the SAPS again declared the cattle forfeited to the State and sold 42 cattle by public auction for R286,900 on the same day. Two cattle had died in SAPS custody before the auction. The respondent then sought review of the SAPS decision in the High Court.

• Whether cattle seized by police could be forfeited to the State without affording the respondent an opportunity to be heard prior to the forfeiture decision
• Whether the failure to afford a hearing was arbitrary
• Whether the decision to declare the cattle forfeited to the State was inconsistent with the provisions of section 32 of the Criminal Procedure Act 51 of 1977 and thus unlawful
• The proper interpretation of sections 31(2) and 32 of the Criminal Procedure Act regarding seized property and forfeiture procedures

The application for leave to appeal was dismissed with costs.

Sections 31(2) and 32 of the Criminal Procedure Act 51 of 1977 require strict compliance with procedural fairness before seized property can be forfeited to the State. Section 32 imposes a positive duty on investigating officers to take reasonable steps to ensure that seized articles are returned to persons who may lawfully possess them. Before declaring property forfeited, the police must: (1) notify the person who may lawfully possess the article by registered post; (2) allow 30 days for the person to take possession; (3) conduct an inquiry to determine whether the person may lawfully possess the article; and (4) afford the affected person an opportunity to be heard (audi alteram partem rule). These requirements give effect to section 33 of the Constitution (right to administrative justice) and prevent arbitrary exercise of public power. The payment of an admission of guilt fine does not automatically render possession unlawful or remove the need for the procedural protections in sections 31(2) and 32.

The Court cited with approval the Constitutional Court's observation in Ngqukumba v Minister of Safety & Security that possession is closely associated with and is often an incident of ownership, and that protecting possession guarantees wholesome enjoyment of the right to property. The Court also noted that section 17(2B) of the Animal Diseases Act empowers the Director to return seized animals to the person who imported them if the Director believes a permit would have been issued had an application been made. The Court observed that the permit requirement under the Animal Diseases Act relates to importation and conveyance of cattle into or through the Republic, not to proof of lawful possession of the cattle themselves. The Court commented critically on the SAPS's haste in securing an indemnity from the Department of Agriculture, Forestry and Fisheries and then immediately selling the cattle on the same day as declaring forfeiture, suggesting this demonstrated a lack of proper consideration of the legal requirements.

This case is significant in South African law for establishing important procedural safeguards in the context of search, seizure and forfeiture under the Criminal Procedure Act. It affirms that administrative decisions regarding forfeiture of seized property must comply with constitutional principles of administrative justice, particularly the audi alteram partem rule. The judgment clarifies that even after payment of an admission of guilt fine, the police cannot arbitrarily forfeit seized property without first conducting an inquiry into lawful possession and affording the affected person an opportunity to be heard. It emphasizes that the protective provisions in sections 31(2) and 32 of the CPA must be strictly complied with before property can be forfeited to the State, reinforcing the connection between possession and property rights. The case provides important guidance on the intersection between criminal procedure and administrative law, particularly in protecting citizens' property rights against arbitrary state action.