The Free State Police, Roads, and Transport (PRT) is again making headlines after the Free State High Court Judge Ilse Van Rhyn dismissed an application by William Bulwane, Member Of the Executive Council responsible for Police, Roads, and Transport to review order granted on 28 May 2021 by the first respondent, Magistrate Viljoen.
Magistrate Viljoen ordered that the motor vehicle with the registration number impounded by the traffic officer in Kroonstad be unconditionally handed over to Adriaan Vernon Botha in terms of section 99(2)(b) of the Free State Public Transport Act, Act 4 of 2005 (the “Act”).
Background
On 5 February 2021, Lawrence Owen Buthelezi (the then owner of the Toyota) was issued with a notice in terms of the provisions of section 56 of the Criminal Procedure Act (the “CPA”) to appear in the Magistrates’ Court, Kroonstad. The notice called upon the third respondent to appear at court on 28 April 2021 on a charge of conveying passengers for reward without the necessary permit in contravention of section 102(1)(a) read with section 4(3)(a) of the Act.
Simultaneously with the issuing of the notice, the traffic officer seized and impounded the Toyota with which it is alleged that Lawrence Owen Buthelezi conveyed persons for reward without having the necessary permit. As a norm, the notice embodied an option for the third respondent to pay an admission of guilt fine in the amount of R1 500,00 instead of an appearance before the court. Lawrence Owen Buthelezi elected not to pay the admission of guilt fine.
On 12 March 2021 and at the Kroonstad Magistrates’ Court Magistrate Viljoen convicted Lawrence Owen Buthelezi of the offense. Magistrate Viljoen imposed a sentence of six (6) months imprisonment with an option of a fine in the amount of R3000.00, which sentence was wholly suspended for five (5) years on the condition that Lawrence Owen Buthelezi shall not be convicted of a contravention of Section 102(1)(a) of the Act during the period of suspension.
Magistrate Viljoen adjudicated upon an application for the return of the Toyota brought by on 28 May 2021. The transcription of the record of proceedings before Magistrate Viljoen in case number PVC 103/2021 in the matter between The State and Owen Buthelezi, was filed by MEC Bulwane.
From the contents of the founding and answering affidavits, as well as the record of proceedings, the following facts appear:
In December 2020 Adriaan Vernon Botha and Lawrence Owen Buthelezi entered into an oral agreement in terms whereof Adriaan Vernon Botha purchased the Toyota from Lawrence Owen Buthelezi for R 25 000.00
The parties agreed that R20 000.00 was payable on or before 31 December 2020, and the balance, of R 5000.00, was to be paid to Lawrence Owen Buthelezi on or before 7 February 2021. Lawrence Owen Buthelezi would retain possession of the Toyota until the final payment of the purchase price. The amount of R5 000.00 was paid to Lawrence Owen Buthelezi on 5 February 2021.
However, before the Toyota could be delivered to Adriaan Vernon Botha, Lawrence Owen Buthelezi was issued with the aforesaid notification by the traffic officer, and the Toyota was impounded.
On 5 May 2021 Adriaan Vernon Botha, with the cooperation of Lawrence Owen Buthelezi, saw the registration of the Toyota in the name of Adriaan Vernon Botha. A copy of their certificate of registration of Toyota is appended to the review application.
On 25 May 2021, Lawrence Owen Buthelezi was granted leave to appeal against the conviction and sentence handed down by Magistrate Viljoen.
On 28 May 2021 Adriaan Vernon Botha, through his attorney, applied for an order in terms of the provisions of section 99(2)(b) of the Act for an order that the Toyota be returned to the registered owner, Adriaan Vernon Botha.
Magistrate Viljoen noted as follows on the record of the criminal proceedings: “Accused confirmed that the motor vehicle concerned was sold to Adriaan Botha before it was confiscated”.
The National Prosecuting Authority did not oppose the application for the vehicle to be handed to the second respondent.
Adriaan Vernon Botha, with the assistance of his attorney, made several attempts to obtain possession of the Toyota after Magistrate Viljoen granted the court order. The Chief of the Department of Police, Roads, and Transport at the Kroonstad Traffic Office refused to hand over the vehicle to the second respondent as per the court order.
Adriaan Vernon Botha has suffered damages and is being prejudiced due to the Toyota being vandalized at the depot.
Mr. Mazibuko, counsel on behalf of the applicant, submissions are that:
Firstly, Magistrate Viljoen had no jurisdiction to make the order and thus exceeded his powers; and
Secondly, in making the order, Magistrate Viljoen had committed a material error of law amounting to a gross irregularity.
MEC Bulwane argued that the determination of this matter depends upon the interpretation of section 99(2) of the Act which provides as follows:
On behalf of MEC it was argued that on a proper reading and interpretation of section 99(2), the Toyota may only be released to the person from whom it was seized and against whom criminal charges were instituted. The “concerned person” can therefore only be the person against whom criminal charges or prosecution had been initiated, namely the driver of the relevant motor vehicle.
Janse van Rensburg, counsel on behalf of the first respondent, raised the following points:
MEC does not have the necessary locus standi to bring the application;
the National Prosecuting Authority should have been joined in the review application.
Adriaan Vernon Botha contends that MEC in this review application was not a party to the criminal proceedings held before Magistrate Viljoen and is therefore at best an? interested party on the basis that the applicant is currently in possession of the Toyota. Given the applicant’s lack of locus standi through its indirect interest, it is contended that the review application should be dismissed with a punitive cost order.
Regarding the non-joinder of the National Prosecuting Authority, who has a direct interest in the outcome of this review application, the failure to join the National Prosecuting Authority is fatal for the applicant’s case.
In respect of the preliminary issues of locus standi and non- joinder raised by the second respondent, I am of the view that the MEC, as the custodian of the Toyota seized by the traffic officials, should see to the release of the impounded article to the person concerned as provided for in the Act.
The issue in this review is primarily one of statutory interpretation. The Act does not define the words “person concerned”.
The provisions of section 87 of The National Land Transport Act are similar to the provisions of section 99 of the Act with no definition of the concept “person concerned”. In the absence of a definition of the concept of “person concerned” in the national and the relevant provincial acts, cognizance has to be taken to the ordinary grammatical meaning of the words “person concerned” to whom the article seized must be returned.
The word “concerned” is defined as an adjective meaning “involved, troubled, anxious, showing concern” with or by something.
Dealing with the act Van Rhyn said.
“It is common cause that the second respondent is the lawful owner of the Toyota. Mr. Mazibuko argued that on a proper reading of section 99 (1) (b) the impounded Toyota may only be released to the third respondent being the “person concerned”.
However, Mr. Mazibuko conceded that, in the event of the third respondent having passed away or immigrated to another country, it would therefore not be possible to release the vehicle to anybody, not even the executor of his estate.
To my mind, it will be absurd to hold that the lawful owner of the Toyota may not claim the release thereof merely on the basis that the third respondent, who has confirmed that he has no claim to the vehicle, due to the sale of the Toyota to the second respondent, the person who had been convicted of the offense and is thus the only person to whom the Toyota may be released.”
Before handing down judgment Judge VAN RHYN explained the costs.
“In the answering affidavit, Adriaan Vernon Botha asks for a punitive costs order. The conduct of the MEC in retaining the vehicle long after Magistrate Viljoen has granted the release of the Toyota to its rightful and lawful owner and taking cognizance of the numerous attempts of Adriaan Vernon Botha and his attorney to obtain the release of the Toyota, I am satisfied that a cost order that will not leave Adriaan Vernon Botha out of pocket justifies a special costs order.
The review application should fail on the basis that the first respondent did have the necessary jurisdiction to make the order as he did and there is no material error of law made by the first respondent, nor any gross irregularity.”
Judge VAN RHYN ordered:
The review application is dismissed.
The applicant(ME Bulwane) is ordered to pay the second respondent’s costs on the scale of attorney and client.
In other news the ANC Chief Whip in Mangaung Metro has been ousted following a vote of no confidence last night with sources saying he is a victim of infighting between N8 and Southern Sun factions.
Hillary Mophethe, PRT spokesperson, did not respond to our questions.
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