In Vula v Minister of Safety and Security, the Eastern Cape High Court considered whether Mr Vula was entitled to the return of his .303 calibre rifle, firearm license and ammunition, which had been seized and retained by the South African Police Services ("SAPS") under sections 20, 21 and 31(1)(a) of the Criminal Procedure Act ("CPA").
Mr Vula had been involved in an altercation with his partner in 2015. During this incident, her male relatives intervened, resulting in an exchange of words and an assault that left Mr Vula unconscious.
While waiting for an ambulance, Mr Vula was awoken by a SAPS officer, who informed him of his arrest for assault and subsequently seized his firearm. Despite multiple attempts, Mr Vula was unsuccessful in retrieving his firearm from the SAPS.
In August 2019, Mr Vula approached the SAPS again, this time with a letter from his attorneys seeking the return of his firearm. The station commander indicated that Mr Vula was unlikely to recover his rifle unless he approached the courts. Consequently, Mr Vula launched an application with the court in February 2020, approximately five years after the seizure of his firearm.
The issue before the court was whether the SAPS' continued possession of the firearm was lawful under the CPA. Section 20 of the CPA permits the seizure of articles for investigative purposes, while section 31(1)(a) mandates the return of seized articles when they are not required for criminal proceedings.
It was common cause that the seizure of Mr Vula's rifle, and his firearm license were lawful as both were seized with his consent. The seizure of the rifle and the firearm licence was conducted in accordance with section 21(a) of the Act, which requires a search warrant to be issued by a judge or judicial officer presiding over criminal proceedings before a seizure.
While section 20 allows for the possession of the article, together with the subsequent detention of the article, the court noted that the right of retention of an article is not unlimited. Section 31 of the CPA stipulates that if no criminal proceedings have been instituted or where an article is not required for such proceedings, such an article may be disposed of or forfeited to the state. Section 31(1)(a) consists of a two-stage enquiry which requires on one leg, that the applicant proves, on a balance of probabilities that no criminal proceedings have been instituted against the applicant and that the article seized will not be used in the legal proceedings. Once the applicant is successful in the first leg of the enquiry, the onus shifts to the respondent to prove that the applicant is not entitled to the lawful possession of the article.
In the current case, the court emphasised the principles of reasonableness and expeditious proceedings. Referring to Buys v Minister of Police and Another, the court highlighted that "the state must act within reasonable expedition in instituting criminal proceedings" and if investigations are prolonged, seized articles should be returned to avoid unreasonable detention. The court stressed that applications of this nature must consider the facts and duration of the detention on a case-by-case basis. The court also supported Erasmus' position that "the police are required to present facts and circumstances before a court to assess the reasonableness of further detention."
Applicant's case
Mr Vula succeeded in the first leg of the two-stage inquiry, demonstrating that the articles were seized and detained despite no pending or foreseeable criminal proceedings. The onus then shifted to the state to show that Mr Vula was not legally entitled to possess the seized articles.
Respondent's defence
In his affidavit, the Minister argued that the firearm was detained because the matter was still under investigation, relying on the sub-judice rule. However, the court ruled that this rule was inapplicable on the facts. The Minister failed to provide any evidence to support the continued detention of the articles. Specifically, the court held that the Minister did not meet the evidentiary burden which rested on him for the following reasons:
The affidavit filed on behalf of the Minister merely denied most of Mr Vula's allegations without substantive evidence, relying on bare denials and hearsay evidence, which the court found was inadmissible. The court concluded that the deponent of the answering affidavit lacked personal knowledge of the events, despite asserting otherwise. In its remarks, the court stated that the investigating officer involved in the seizure would have been the appropriate witness to provide such testimony.
Judgment
In its judgment, the court held that the investigation had been prolonged to a degree that infringed upon Mr Vula's rights. Additionally, it noted that the bare denial regarding Mr Vula's possession of a valid firearm license and the subsequent seizure by the SAPS did not meet the evidentiary standard required by the second leg of the inquiry. The evidence filed on behalf of the Minister was deemed inadmissible and insufficient to justify the SAPS' continued detention of the articles.
Ultimately, the court ruled in Mr Vula's favour, ordering the state to return his rifle, license, and ammunition. It was determined that the state had failed to meet the evidentiary burden necessary to demonstrate Mr Vula was not entitled to these items and that there was no reasonable likelihood of criminal proceedings related to the seizure. Costs were awarded in Mr Vula's favour.
Conclusion
The case underscores two important principles. Firstly, the state's right to seize and, detain articles is not without limits. Secondly, it is the state's obligation to act reasonably and ensure that investigations are promptly conducted when articles are seized.
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