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BY Aslam Moosajee AND Laurence Mort
The legality of impounding taxi vehicles
The taxi industry plays a pivotal role in South Africa, providing essential transport for people who commute to places of work and education. In recent years, many have criticised the reckless driving methods of taxi drivers and the roadworthiness of their vehicles, whilst others have also pointed out the mafia-like business practices – including violence and extortion – which they employ against their competitors including Ubers and public bus services (such as the Golden Arrow and Sibanye Bus Services).
These criticisms are often countered by the enormous employment opportunities that the taxi industry creates for thousands of semi-skilled workers, as well as its unique position in providing an affordable method of transport for thousands of workers to and from their respective jobs. The South African Police Service (‘SAPS’) has increased its efforts in investigating crimes perpetuated by individuals within the taxi industry, including impounding vehicles which fail to comply with the relevant legislation and regulations.
In the case of Makalala v Unit Commander, Bellville Vehicle Crime Investigation Unit and Another, the Court heard an urgent application instituted by Bonke Makalala, a taxi boss, seeking the release and return of three of his Toyota Quantum vehicles which had been seized and impounded by the SAPS. In its judgment, the High Court outlined the legal position regarding rei vindicatio (ownership) claims in the context of restoring possession of impounded motor vehicles and when these applications can be rejected.
Background facts
On 17 October 2024, the SAPS pulled over three taxi drivers transporting passengers between the Masiphumelele township and Fish Hoek. Despite no explanation being provided, the passengers in these vehicles were forced to leave the vehicle, as members of the SAPS proceeded to seize and impound the vehicles which were immediately transported to the Stikland Impound in Cape Town. Mr Makalala – the owner of these impounded vehicles – was subsequently informed about this by his legal representatives. He was at the time incarcerated at Brandvlei Maximum Correctional Services Facility for various crimes including murder.
Mr Makalala’s legal representative then addressed a letter to the SAPS urging them to prioritise and conclude their investigation of the impounded vehicles. In response, Captain Burger (Unit Commander of Oudshoorn Vehicle Crime Investigation Unit) informed Mr Makalala that the vehicles were being investigated for their use in the suspected commission of a crime, and further requested Mr Makalala to make his entire fleet available for inspection.
Mr Makala argued that these allegations presupposed the existence of reported criminal cases concerning the use of these vehicles in a crime. Mr Makalala emphasised the detrimental effect of handing his entire fleet over for inspection, which would not only debilitate his ability to generate income whilst incarcerated but also severely prejudice the livelihood of the drivers of those vehicles.
The evidence presented by the respondents
The respondents, Captain Burger and the Minister of Police argued that the seizure of these vehicles was executed in connection with the SAPS’ investigation into the attacks launched on long-distance buses in the Eastern and Western Cape. The respondents noted that this investigation, titled ‘Project Tsitsikamma’, had identified Mr Makalala as a suspect who had been arrested on 10 December 2023 on various charges related to this investigation.
The seizure of these vehicles was conducted in terms of section 20 of the Criminal Procedure Act (‘CPA’); and on the basis that they had been involved in offences of money laundering in contravention of the Prevention of Organized Crime Act (‘POCA’); as well as for crimes of forgery, uttering and tampering of a vehicle in contravention of the National Road Traffic Act (‘NRTA’). Further, given that the investigation was at an extremely sensitive stage, divulging any further information about the suspected offences may result in the implicated offenders fleeing from justice.
The alleged offences as identified in the investigation against these vehicles were as follows:
- Firstly, the operating permit for one of the vehicles had been fraudulently obtained as it had been issued on a date when Mr Makalala was incarcerated, despite the fact that such a permit can only be issued on application by the applicant in person.
- Secondly, following a forensic investigation into the roadworthiness of these vehicles, evidence was discovered that they had been tampered with, giving rise to suspicions of forgery and uttering. In this regard, it was recorded that the floor panels containing the chassis tag and firewall of these vehicles had been paired with the outer shells of other vehicles, thereby compromising its bodily integrity and true identity, as well as various changes made to the vehicles’ engines.
Counsel for the respondents further highlighted that tampering with a vehicle is unlawful in terms of section 68 of NRTA and that once conclusive proof of tampering is confirmed, such a vehicle cannot be returned to the owner of the vehicle.
The matter before the High Court
The primary issue before the Western Cape High Court was whether Mr Makalala had any legal basis to claim the return of his three Toyota Quantum vehicles which were in the respondents’ possession. The High Court noted that Mr Makalala’s application was based on a vindication claim, in which the onus rests on the applicant to prove their ownership over the item in dispute; that the item claimed exists and is clearly identifiable; and that the respondent is in possession of said item. If the applicant can satisfy these requirements, the onus shifts to the respondent to justify their continued possession of the item.
The High Court noted that section 68 of NRTA aims to prevent people, including owners of vehicles, from being in possession of and driving vehicles that have been tampered with. Importantly, this section does not permit the possession and consequent return by the police of vehicles that have been tampered with, even to their owners. The High Court made further reference to the judgment in Basie Motors BK t/a Boulevard Motors v Minister of Safety and Security (2006) wherein the court held that possession of a vehicle, with an engine or chassis number that has been tampered with, is forbidden. The NRTA does not confer authority on anyone to allow it.
The High Court concluded that the respondents had given conclusive evidence that the 3 Toyota Quantum vehicles belonging to Mr Makalala had been tampered with and that the SAPS accordingly had a valid justification for retaining the vehicles. In these circumstances, the SAPS could not lawfully release the vehicles back into the possession of Mr Makalala or his drivers. The High Court accordingly dismissed Mr. Makalala's application and ordered each party to pay its costs.
Aslam Moosajee
Executive | Dispute Resolution
Laurence Mort
Candidate Legal Practitioner | Dispute Resolution
