Simba Dumbura v Officer in Charge, Zimbabwe Republic Police, Mutare Central Police Station N.O and Constable Reason Aroveshita and Commissioner General of Police

### Preamble
1
HMT 74-20
HC 108/20
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SIMBA DUMBURA

versus

OFFICER IN CHARGE, ZIMBABWE REPUBLIC POLICE,

MUTARE CENTRAL POLICE STATION N.O

and

CONSTABLE REASON AROVESHITA

and

COMMISSIONER GENERAL OF POLICE

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 24 September 2020 and 29 October 2020

Opposed Application

T. Maanda, for the applicant

P. Garwe, for the respondents

MWAYERA J: The applicant approached this court seeking a spoliatory relief, in other words, a restoration order directing the respondent to restore a motor vehicle which the applicant alleges was arbitrarily seized from him on 1 November 2019. The applicant was in possession of a vehicle namely Ford Ranger Registration number AEV 6196, Engine number SA2KPEP15708 and Chasis number AFAPXXMJ2PEP1570, before the respondents impounded the vehicle causing it to be parked at Mutare Central Police Station. The respondent is opposed to the application, in summary, on the basis that the seizure of the vehicle was lawful and that the vehicle in question should remain in custody of the first respondent until investigations are complete. The respondent contents the vehicle is suspected to have been stolen.

The brief history of the matter has to be put into perspective. On 1 November 2019, the applicant was in possession of the Ford Ranger in question. The applicant had bought and took possession of the vehicle on 5 September 2019 and up until 1 November 2019 the applicant was in peaceful possession of the motor vehicle. On 1 November the vehicle was seized on the suspicion that it was a stolen vehicle. Prior to the seizure on 1 November 2019, the applicant was in peaceful and undisturbed possession of the vehicle. It is common cause that the respondents dispossessed the applicant of the vehicle. The issues that fall for determination are:

Whether or not the dispossession was in accordance with law?

Whether or not continual holding of the vehicle by the respondents is lawful?

Mr Maanda for the applicant argued that in spoliatory relief all that the applicant requires to show in order to get relief is that:

He or she was in peaceful and undisturbed possession of the property.

He or she was unlawfully deprived of possession.

Having established that peaceful possession was not in dispute, a close look was to be on the lawfulness or otherwise of the dispossession. The applicant counsel argued the police seized the vehicle on suspicion that it was stolen. They seized the vehicle without a warrant of seizure in terms of s 49 of the Criminal Procedure and Evidence Act [Chapter 9:07]. For more than 8 months the vehicle has been seized depriving the applicant of possession and use of his property. The applicant has not been charged for any criminal offence neither has he been arrested. The vehicle is held adinfitum under the excuse that investigations are underway.

These alleged unending investigations have not established a reasonable suspicion that an offence has been committed warranting placement of the applicant on remand. Despite the suspicion that the vehicle was stolen there is no complainant who filed a report with the police. The applicant argued that the dispossession under the guise of a perpetual investigation was unlawful and arbitrary. In fact the manner in which the seizure occurred and the continued hold over of the vehicle is clear declaration that the police are a law unto themselves.

For spoliation the question of whether possession is lawful does not arise. The applicant was in possession of the motor vehicle before seizure. In the present case the flimsy allegations of the vehicle having been stolen have not been substantiated. Even assuming it was stolen the seizure had to be lawful and not arbitrary. The applicant in this case had the vehicle registered in his name. Although ownership does not arise in spoliation it helps to fortify the fact that the seizure and continued detention of the vehicle by the respondents amounts to an infringement of the applicant’s rights of ownership and possession of property.

The respondents’ counsel Mr Garwe argued that the seizure was lawful as the vehicle was suspected to have been stolen from South Africa. Interpol communication between Harare and Mutare was attached and so was a request to communicate with Interpol Pretoria. The respondents’ counsel further contends that the investigations have been slowed down by the Covid 19 Pandemic. I must hasten to point out that the police has not locked down as they are on essential service. In fact the Covid 19 lockdown is no excuse for the seizure and continued detention for a period of more than 8 months. The suspicion that the vehicle was stolen from South Africa has not been substantiated. There is no communication from South Africa before or after seizure. The basis of reasonable suspicion for seizure in the first place has not been proffered. The applicant has not been formerly charged or indicted for trial. The fact that there appears to be no reasonable suspicion that the applicant committed an offence coupled with the fact that no process has been undertaken to regularise the further retention of the vehicle in question as provided for in s 58A of the Criminal Procedure and Evidence Act which provides as follows:

“Continued retention of seized articles if institution of criminal proceedings is delayed

(1)	If within twenty-one working days from the date—

(a) 	when an article was seized and receipt therefor was given (provided that the date shown on the receipt shall be determinative if it is dated later than the day of seizure); or

(b) 	when a person referred to in section 49(3) receives a receipt for any article previously seized from him or her; no prosecution of an offence in respect of which the seized article is required as an exhibit is initiated, that is to say—

(c) 	no summons is issued to the accused person for the prosecution of the offence; or

(d) 	no statement of the charge is lodged with the clerk of the magistrates court before which the accused is to be tried, where the offence is to be tried summarily; or

(e) 	no indictment has been served upon the accused person, where the person is to be tried before the High Court; then the seized article shall (unless the article in question is one whose possession is intrinsically unlawful) as soon as possible be returned by the police officer who detained it, or by any other person acting in his or her stead, to the premises, place, vehicle, vessel or aircraft from which it was removed or, where that is impracticable, be availed for collection at such place as the police officer shall direct the owner or possessor thereof to go, unless the police officer earlier, upon at least seventy-two hours’ notice to the owner or possessor thereof, serves upon him or her a written notice of continued retention of the seized article, in which the police officer shall—

(f)	affirm that investigations relating to the offence in respect of which the seized article is required as an exhibit are ongoing and are being actively pursued without undue delay; and

(g) 	afford the owner or possessor thereof an opportunity to lodge at a specified police station a written objection to the retention of the article within forty-eight hours of the date of issuance of the notice of continued retention; and if no such objection is lodged, the seized article may be retained in custody by the police until the pertinent criminal proceedings have been concluded, abandoned or discontinued and the seized article dealt with in accordance with this Part.

(2) 	If the owner or possessor of a seized article is not served with a notice of continued retention after the expiry of the period specified in subsection (1) and no prosecution in respect of the seized article is initiated within that time, then the owner or possessor has the right to recover the article (unless it is one whose possession is intrinsically unlawful) from the police upon mere production of the receipt issued to him or her by a police officer in relation thereto, unless a police officer forthwith delivers to the owner or possessor the notice of continued retention, and subsection (1) shall thereupon apply in relation to such notice.”

That the property was seized without a warrant, that there was no formalisation of continued retention of the motor vehicle and that there is no substantiated reasonable suspicion goes a long way in confirming unlawful dispossession. The police were arbitrary in the manner in which they carried on and seized the applicant’s vehicle.

It has been pointed out that dispossession is not in contention. Further the dispossession has been shown to be unlawful. The requirements of a spoliatory relief namely:

Peaceful undisturbed possession.

Unlawful dispossession have been met for the relief to be available. It is apparent from s 49 and s 51 of the Criminal Procedure and Evidence Act [Chapter 9:07] that arrest and seizure of property may be effected without a warrant in certain and specified circumstances.

Section 49, State may seize certain article:

“The State may, in accordance with this part seize any article-

Which is concerned in or is on reasonable grounds believed to be concerned in, the commission on suspected commission of an offence whether within Zimbabwe or elsewhere or

Which it is on reasonable grounds believed may afford evidence of the commission or suspected commission of an offence, whether within Zimbabwe or elsewhere or

Which intended to be used or is on reasonable grounds believed to be intended to be used in commission of an offence.”

A reading of this section reveals that in this case for the vehicle to be lawfully impounded and possessed by the respondents. It must be shown that:

The vehicle was concerned in commission of an offence.

There was reasonable grounds to believe that the vehicle was concerned with commission of an offence.

The vehicle was on reasonable grounds intended to be used in commission of an offence.

At least at the time of dispossessing the applicant, the respondents ought to have had reasonable grounds on which suspicion that the vehicle was concerned with commission of crime was based. What would constitute reasonable suspicion would require an objective test. In the case of Nathaniel Moyo v Sergeant Chacha CCZ 19/17, the Constitutional Court defined reasonable suspicion pointing out that there should be factors which when taken together and interpreted by the arrester should show the existence of a reasonable suspicion. See also R v Van Heeden 1958 (3) SA 50, the court stated as follows on commenting on reasonable suspicion:

“The test for determining the existence of a reasonable suspicion is an objective one, that is, the grounds of suspicion must be those which would induce a reasonable person to have suspicion.”

The suspicion has to be reasonable and backed up by reasonable cause. In the present case the respondents suspected that the vehicle was stolen from South Africa. The suspicion was not based on any facts presented. The suspicion led to dispossession of the applicant to facilitate investigations and checks made. The suspicion was not based on specific and articulated facts. Even about 10 months after the dispossession there is no complainant who reported theft of their vehicle. There is no communication from South Africa alerting about the vehicle having been stolen from South Africa. What is clear is that there is no communication from South Africa as at time of seizure and after. What is there is just communication between Mutare and Harare Interpol and on indication of communication from Harare to Pretoria. There are no demonstrable facts that at the time of seizure there was reasonable suspicion that the vehicle was concerned with crime.

The relief the applicant is seeking is well anchored on the need to uphold the rule of law and preserve public order. It is a relief which seeks to restrain people from taking the law into their own hands which would lead to anarchy and lawlessness. The spoliatory relief is available in situations where there is disturbance of peaceful possession. It is available whether the despoiler is an individual or government entity. See George Municipality v Vena and Another 1989 (2) SA 263. It is a remedy availed to minimise or eradicate excesses like self-help by individuals’ institution or government functionaries.

In this case, the question is simply whether or not the second respondent was properly acting within the confines of the law when he dispossessed the applicant of the vehicle in question. Considering that no arrests or summons for prosecution of the applicant has been issued, no charge has been preferred against the applicant and that no complainant has come up. The suspicion giving rise to the dispossession of the applicant of the vehicle in question cannot be defined as reasonable. There has been no process justifying further retention of the vehicle by the respondents. It is settled that in an application for spoliation the applicant should have been in peaceful and undisturbed possession of the property. Whether the possession is lawful or unlawful is not the issue. The views were clearly spelt out in Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 240 where reynolds j as he then was stated:

“It is a well-recognised principle that in spoliation proceedings it need only be proved that the applicant was in possession of something and that there was a forcible or wrongful interference with his possession of that thing-that

Spoliatus ante omnia restituendus est………Lawfulness of possession does not enter into it. The purpose of the mandament van spolie is to preserve law and order and to discourage persons from taking the law into their own hands. To give effect to these objectives, it is necessary for the status quo ante to be restrained until such time that a competent court of law assesses the relative merits of the claim. Thus it is my view that the lawfulness or otherwise of the applicant’s possession of the property in question does not fall for consideration at all.”

In the present case, it is common cause the applicant was in peaceful and undisturbed possession of a vehicle Ford Ranger Registration number AEV 6196, Engine number SA2KPEP15708 and Chasis number AFAPXXMJ2PEP1570. He was dispossessed of the vehicle in question on 1 November 2019 on basis the vehicle was suspected to have been stolen. From the written and oral submissions presented before the court there are no positive facts articulated clothing the suspicion as reasonable suspicion. The dispossession appeared to be speculative to facilitate investigation in a manner which taints it as unlawful dispossession. No further processes were done to regularise further retention of the motor vehicle as is expected in terms of s 58A of the Criminal Procedure and Evidence Act.

In this case the respondents appear to have over stepped the statutory powers and acted outside the law by seizing the vehicle without reasonable suspicion and continued holding on without conforming with the law. That there is the Covid 19 Pandemic is not an excuse for not operating within the legal parameters. In the case of Tswelopete Non Profit Organisation and Others v City of Tswane, Metropolitan Municipality and Others SA 2007 (6) 511, the appellate court emphasised the underlying principle to the spoliatory relief. It stated:

“Under [the mandament van spolie] anyone illicitly deprived of property is entitled to be restored to possession before anything else is debated or decided. Even on unlawful possessor-a fraud, a thief or a robber is entitled to the mandament’s protection. The principle is that illicit deprivation must be remedied by the courts which decide competing claim to the object or property.”

These remarks apply with equal force to the present case in which the applicant appears to have been dispossessed on unfounded suspicions. Having pointed out that the applicant was in peaceful and undisturbed possession prior to the unlawful dispossession by the respondents, the applicant is entitled to the relief sought. The applicant sought for punitive costs arguing that such would register the displeasure of the court on respondent’s conduct of self help under the guise of law enforcement. I must hasten to mention that the manner in which the second respondent invited the applicant to the police station in the circumstances is not indicative of abuse of power.

The applicant was invited to the police station. He complied and drove the vehicle whereupon he was notified the vehicle was under seizure for it was suspected to have been stolen. It is that suspicion which was unreasonable as it was not substituted by facts and the seizure was further not followed up by regularisation by compliance with the law which rendered the dispossession unlawful. The circumstances certainly do not display the excesses of abuse of power warranting costs on a punitive scale.

Accordingly, it is ordered that:

Respondents and those acting under their instructions are hereby ordered to return, forthwith, to the applicant’s possession a Ford Ranger, Registration number AEV 6196, Engine number SA2KPEP15708 and Chasis number AFAPXXMJ2PEP1570.

Respondents shall pay costs jointly and severally the one paying the other to be absolved.

Maunga Maanda, Applicant’s legal practitioners

Civil Division of Attorney General’s Office, Respondents’ legal practitioners