Pakule and Tafeni v Minister of Safety and Security

These were two consolidated appeals concerning the seizure of motor vehicles by the South African Police Service. In Pakule's case, his Toyota Hilux taxi was seized in January 2008 when police found it abandoned on the roadside after pursuing a driver (Pakule's employee) wanted for armed robbery. The vehicle had no number plates, no licence disc, and the driver had no driver's licence. Upon inspection, the original chassis and engine numbers had been filed off and replaced with new numbers appearing unprofessional. In Tafeni's case, police officers noticed his white Toyota Hilux taxi in January 2009, suspecting it might be stolen because white paint appeared superimposed over red paint. With the driver's consent, they searched the vehicle at the police station and discovered the inner fenders were red while the body was white, engine tags had been removed and remounted, and engine and chassis numbers had been tampered with. Tafeni could not produce ownership documents. Both appellants sought court orders declaring the seizures unlawful and demanding return of their vehicles. The Eastern Cape High Court (Alkema J) dismissed both applications, prompting these appeals.

• Whether the seizure of vehicles without initial reasonable grounds for believing they were concerned in the commission of an offence rendered the seizures unlawful
• Whether vehicles could be lawfully retained after evidence discovered subsequent to seizure established reasonable grounds for belief that the vehicles were concerned in offences
• Whether sections 20 and 22 of the Criminal Procedure Act 51 of 1977 permit police to seize articles where reasonable grounds for belief emerge after the initial seizure
• Whether section 68(6)(b) of the National Road Traffic Act 93 of 1996 prohibits return of vehicles with tampered engine and chassis numbers, even to their owners
• The correct interpretation of search and seizure provisions in light of constitutional rights to privacy and property

Both appeals were dismissed with costs, including costs of two counsel in each case. The orders of Alkema J in the Eastern Cape High Court refusing to declare the seizures unlawful and denying return of the vehicles were upheld.

Police may lawfully seize and retain an article under sections 20 and 22 of the Criminal Procedure Act 51 of 1977 where reasonable grounds for believing it is concerned in the commission of an offence emerge after the initial seizure, even if such grounds did not exist at the moment of seizure. Section 68(6)(b) of the National Road Traffic Act 93 of 1996 prohibits any person, including the owner, from possessing a motor vehicle whose engine or chassis number has been tampered with, and police may not return such vehicles to persons from whom they were seized, regardless of ownership. Where a vehicle displays evidence of tampering with engine and chassis numbers, this constitutes a reasonable ground for believing the vehicle is concerned in the commission of an offence under section 20 of the Criminal Procedure Act.

The court noted that in the Eastern Cape High Court there had emerged 'two schools of thought' resulting in conflicting decisions on the application of sections 20 and 22 of the Criminal Procedure Act. Alkema J had suggested it was imperative for the Supreme Court of Appeal to provide a definitive answer given the frequency of applications for return of seized vehicles. The court observed that one line of cases had adopted a restrictive interpretation based on the search and seizure provisions limiting constitutional rights to privacy and property. The court noted as 'common knowledge' that engine and chassis numbers would be tampered with where it is intended that a stolen vehicle be sold intact. The court commented that returning a vehicle only to immediately re-seize it lawfully would be 'an exercise in futility'.

This case resolved a conflict in the Eastern Cape courts regarding the application of sections 20 and 22 of the Criminal Procedure Act 51 of 1977. It established definitively that police may lawfully seize and retain articles where reasonable grounds for belief that they are concerned in commission of an offence emerge after initial seizure, even if such grounds did not exist initially. The judgment clarified the interaction between the Criminal Procedure Act's search and seizure provisions and section 68(6)(b) of the National Road Traffic Act 93 of 1996, confirming that vehicles with tampered engine or chassis numbers cannot be returned even to their owners. This provided much-needed consistency for the numerous applications for return of seized vehicles in the Eastern Cape courts. The case also demonstrates the court's approach to balancing constitutional rights to privacy and property against law enforcement imperatives and statutory prohibitions on possessing tampered vehicles.