Prepare a stolen summary of Khan v Minister of Law and Order.  Follow the FILAC structure:

KHAN v MINISTER OF LAW AND ORDER 1991 (3) SA 439 (T)  _A

1991 (3) SA p439

Citation	1991 (3) SA 439 (T)
Court	Transvaal Provincial Division
Judge	Du Plessis J
Heard	August 29, 1990
Judgment	September 5, 1990  B

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 Flynote : Sleutelwoorde

Criminal procedure - Search and seizure - Application in terms of s 31(1) of the Criminal

Procedure Act 51 of 1977 for the return of a vehicle seized in terms of s 20 of the Act Entitled to return unless  C continued possession unlawful - Onus on State to prove on a balance of probabilities that possession unlawful - Vehicle constructed from parts belonging to applicant and stolen parts - Principal portion stolen - Parts belonging to applicant acceding to stolen portion - Applicant's continued possession unlawful - State discharging onus and application accordingly refused.

D Ownership - Acquisition of - Accession - Determination of principal object - Thing ultimately formed to be viewed and a decision reached as to what component gives it its identity - Such component being principal and other components accessories - Car consisting of a rear portion, including the interior, which could positively be identified as  E having been stolen; the engine and inner front portion, which could positively be identified as belonging to the applicant, and other components, some of which were probably from the same stolen vehicle as the rear portion of the car and others which had been obtained from a different source Identity conferred by stolen rear portion - Components belonging to applicant accordingly acceding to stolen  F vehicle.

Headnote: Kopnota

The applicant had been dispossessed of his motor vehicle by a member of the South African Police. He brought an application in terms of s 31(1) of the Criminal Procedure Act 51 of 1977 for the return of the vehicle. The applicant's supporting affidavit contained sufficient averments to render the initial seizure of the vehicle in terms of s 20 reads with s  _G 22 of Act 51 of 1977 unlawful. The vehicle, which had been registered as a built-up vehicle, consisted of a rear portion, including the interior, which could positively be identified as having been stolen; the engine and inner front portion, which could positively be identified as belonging to the applicant; and other components, some of which were probably from the same stolen vehicle as the rear portion of the car and others which had been obtained from a different source. It was contended by the applicant that the components and rear portion identified as  _H having been stolen had acceded to the applicant's car and the applicant as the owner was therefore entitled to possession of the car.

Held, that the respondent bore the onus of proving on a balance of probabilities that the applicant was not entitled to the return of the said vehicle in terms of the section of the Act on the basis that the applicant's continued possession of the vehicle would be unlawful. I Minister van Wet en Orde en 'n Ander v Datnis Motors (Midlands) (Edms) Bpk1989 (1) SA 926 (A) applied.

Held, further, that the thing that had been formed ultimately had to be viewed and a decision reached as to what gave that thing its identity: the component that gave the thing its identity would then be the principal thing and the other components would be regarded as having acceded to that thing.

Held, further, that about the present facts the principal component was that portion of the car which had been stolen to which had  _J been added a modified engine

1991 (3) SA p440

DU PLESSIS J

A and small portions of the body so that under the circumstances the vehicle could not be said to be that belonging to the applicant but rather the stolen vehicle identified by the respondent.

Held, accordingly, that the respondent had discharged the onus of establishing that the applicant's continued possession of the vehicle would have been unlawful and the application had to be dismissed.  _B

Case Information

Application in terms of s 31(1) of the Criminal Procedure Act 51 of 1977. The facts appear from the reasons for judgment.

  A J Bam for the applicant.    H J de Wet for the respondent.  _C    Cur adv vult.

  Postea (September 5).

Judgment

Du Plessis J: In July 1989 Sergeant Van Dyk of the South African Police seized a certain BMW 320i motor vehicle registration NBD286T  _D which, at the time, was possessed by the applicant. The applicant now applies for an order directing the respondent to return the vehicle. Although the applicant makes the allegation that the seizure of the vehicle was unlawful, Mr Bam on behalf of the applicant argued the matter on the basis that the respondent is obliged to return the vehicle to the applicant in terms of the provisions of s 31(1) of the Criminal  _E Procedure Act 51 of 1977.

  The respondent's answering affidavits do contain sufficient allegations to render the initial seizure lawful in terms of s 20 read with s 22 of the said Act. The vehicle having been seized from the possession of the applicant, the respondent bears the onus of proving _F that he is not, in terms of s 31(1) of the said Act, obliged to return it to the applicant. (See Minister van Wet en Orde en 'n Ander v Datnis Motors (Midlands) (Edms) Bpk1989 (1) SA 926 (A).)

  It is common cause that no criminal proceedings were instituted in connection with the vehicle and the respondent thus has to prove that the applicant may not lawfully possess the vehicle (see s 31(1)(a) of  _G the Act). This the respondent set out to achieve by endeavouring to prove that the vehicle is a stolen vehicle. It is clear that if the respondent establishes that the vehicle is stolen, the applicant will, by reading the respondent's affidavits, have knowledge of that fact, and would therefore not be able to lawfully possess it. (See Minister van Wet en Orde v Datnis Motors (supra ).)

1. There are disputes of fact on the papers and the matter must therefore be approachedin accordance with the guide-lines set out in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd1984 (3) SA 623 (A) at 634E - 635A. (See also Ngqumba en 'n Ander v

Staatspresident en Andere; Damons NO en Andere v Staatspresident en Andere; Jooste v Staatspresident en Andere1988 (4) SA 224 (A) at 259I - 263D.)

1. It is the applicant's case that he became owner of the car in the following manner. Hepurchased the wreck of a 1985 model BMW 320i. He then entered into an agreement with a concern called Morris Panel Beaters in terms of which the latter would rebuild the wreck so as to appear to be not a 1985 but a 1988 model of the said type of car. This Morris did by cutting the 1985 wreck through just in front of the  _J windscreen pillars of the car,

 

1991 (3) SA p441 DU PLESSIS J

 _A and by then joining the rear portion of a 1988 model to the front portion of the wreck. The entire car thus formed was then sprayed the colour of the 1988 portion, namely dolphin grey.

  The applicant in his founding affidavit alleges that he assembled the engine and 'other mechanical parts' of the car. It was fitted with a gearbox, supplied by Morris and registered in the applicant's name as a  _B built-up vehicle.

  Van Dyk, having seized the car, inspected it thoroughly and also had it inspected by different experts in the employ of BMW South Africa. The combined evidence of these experts, insofar as it stands to be accepted in accordance with the guidelines set out above, shows that virtually the entire body of the car is that of a 1988 model BMW 320i. The only _C 1985 body components are the inner portion of the front housing the engine compartment, that is the portion on which the front axle is bolted, the inside panels to which the shock absorbers are attached and the front panel to which the radiator is attached. The portions of the body visible from the outside, such as mudguards, bonnet, front fender  _D and the valance are all those of a 1988 model. Components such as the radiator itself, the wheel rims, the lower control arm, the front studs, the intake manifold and the entire steering mechanism all bear marks which show that they were manufactured during 1988. Although the car bears the chassis number of the 1985 wreck and this number is engraved  _E on the windows of the car, it is common cause that this engraving on the windows was done after the joining of the two different portions.

  On one of the windows, a portion of a number previously engraved thereon could be discerned. Through a process of elimination, the experts on behalf of the respondent were able to ascertain that this _F number probably belonged to a 1988 model 320i vehicle. Having thus ascertained the probable identity of the 1988 vehicle, they were able to also ascertain the code number of the keys that would fit this particular 1988 model. The keys were then cut in the BMW factory and it was found that these keys fit all the door locks and the ignition lock of the seized vehicle. The keys did not fit the boot lock which was, in  _G any event, not original.

  The experts further found that the 1988 vehicle identified in this manner was stolen during 1988 from one Rheeder. Rheeder's own keys (those of his stolen car) also fitted the relevant locks, and the colour of the seized car was the same as that of Rheeder's stolen car.

 _H    The respondents in my view succeeded in proving that the rear portion of the applicant's car is that of the stolen vehicle. As to the front portion it is, of course, possible that the 1988 components of the front portion of the body were not stolen, but on the facts as a whole it must be regarded as more probable than not that the 1988 components of the front portion of the body also belong to the stolen vehicle of Rheeder. The differential and gearbox of the applicant's car both had their  _I original identification numbers removed and the gearbox was also manufactured in 1988. These components are also on the probabilities stolen. It is difficult to conceive of any other probable explanation as to why the numbers were removed, especially in view of the fact that these components are used in conjunction with a substantial part of a  _J body that is clearly stolen.

 

1991 (3) SA p442

DU PLESSIS J

 _A    The experts on behalf of the respondent initially thought that the engine also was that of a 1988 model, because they thought that the engine numbers were unevenly punched on the engine and also because the engine is a so-called 'motoronic' as opposed to a 'jetronic' type of  _B engine. In the 1985 models the jetronic engines were used, while in the 1988 models the motoronic engines were used. Having read this latter allegation, the applicant for the first time in his replying affidavit alleged that the engine of his car had been modified from a jetronic fuel injection and ignition system engine to a motoronic system. Although the applicant does not directly say so, he seems to imply that he did the modification.

  The respondent properly filed a further affidavit in which it is  _C stated that the 1985 engine number appearing on the engine is not unevenly punched, and is in all probability the original number. It is also admitted in the further affidavit that it is possible, though difficult, to modify the 1985 jetronic engine so as to appear to be a 1988 motoronic engine. The applicant's failure to make the allegation in  _D respect of this modification in his founding affidavit does cast some doubt on his veracity, but I do not think that this allegation of the applicant can be summarily rejected on the papers. It must therefore be assumed that the engine is that of a 1985 model.

  The present vehicle therefore consists of a rear portion, including the interior, which can positively be identified as being portion of  _E Rheeder's stolen vehicle. The engine and inner front portion of the body, on the other hand, can positively be identified as portion of the applicant's 1985 wreck. The other components probably are also those of Rheeder's stolen car although some, for instance the gearbox and the differential and some minor parts, might, although stolen, emanate from a different source.

 _F    Mr Bam, on behalf of the applicant, submitted that on these facts the other components acceded to, and now form part of the applicant's car and that he, through accessio, became the owner thereof and is entitled to possession of the vehicle.

  Where one movable is joined to another in such a manner as to form an entity, the owner of the principal thing becomes the owner also of the  _G thing joined to it (die bysaak). (See Van der Merwe Sakereg 2nd ed at 242.) Deciding which of the things is the principal thing ordinarily is a matter of pure and simple common sense. Our common law authorities have devised a number of rules or guidelines to be followed in deciding which of the former separate things is the principal thing. (See the  _H authorities quoted by Van der Merwe (op cit at 230).)

  There is a dearth of South African authority on the guidelines to be followed in identifying the principal thing (die hoofsaak). The reported cases that there are were decided on facts which did not really admit of any doubt. (See for instance JL Cohen Motors (SWA) (Pty) Ltd v Alberts1985 (2) SA 427 (SWA); Cooper v Jordan (1884) 4 EDC 181; Doli v Mamkele  _I 1926 EDL 269.)

  In Aldine Timber Co v Hlatwayo 1932 TPD 337, Barry J (with whom Maritz J concurred) followed two of the guidelines referred to by the Roman law authorities and decided that the more valuable thing, which in terms of bulk forms the greater part of the thing that was ultimately formed by  _J the joining of the two components, must be identified as the

1991 (3) SA p443 DU PLESSIS J

 _A principal thing to which the other acceded. I am not entirely sure that this was not, as is argued by the learned authors Van der Merwe and De Waal (see 1986 Tydskrif vir Hedendaagse Romeins-Hollandse Reg 66 at 70), rather a case of specificatio than of accessio. I do not, in any event, understand Barry J to have authoritatively laid down that the value and bulk test should be followed in all instances, but rather that he used  _B this test because, on the other possible tests, doubt existed.

  I agree with Van der Merwe and De Waal (op cit ) (and see also Van der Merwe Sakereg 2nd ed at 230 - 1) that the principal thing is that one that gives the ultimate thing its character, form and function. Grotius Inleidinge 2.9.1 seems to apply a pure value test, although the word that he uses, namely 'waerdiger' might also carry the meaning of _C 'worthy' in the sense of that portion of the whole that really gives the whole its identity. (See Scheltinga's Dictata on De Groot.) Voet 41.1.14 merely says that the matter must be decided on what accedes to what or, put differently, on what is added for purposes of adorning the other. Huber RHR 2.6.2 gives various examples. Of these examples, one, the  _D diamond added to the ring, clearly indicates that he applies in essence the character, form and function test. In my view the authorities show that the decision really is an application of common sense. One must view the thing that was ultimately formed, and decide what is the identity of that thing, and the component that gives the ultimate thing its identity will be the principal thing, while the other will have  _E acceded to it. It is also in cases of doubt that the various guidelines, depending upon the facts of each case, need be used.

   Applying to the present facts the character, form and function test, I am of the view that the vehicle can be said to be a 1988 model, to which a 1985 engine modified to conform to a 1988 engine was added and to  _F which small portions of a 1985 body were added.

  Under the circumstances the car cannot be said to be that of the applicant, because the stolen parts were added to his 1985 wreck. In my view it was the other way around and the car in character, identity, form and function is Rheeder's stolen 1988 model.

   It was, in the alternative, raised in the applicant's papers that, in  _G the event of a dispute of fact being found, the matter should be referred to oral evidence. The issues, however, are such that the applicant should clearly have foreseen a dispute of fact arising on the papers.

  The following order is therefore made:

  The application is dismissed with costs.

   Applicant's Attorneys: D Maartens & Co. Respondent's Attorneys: State Attorney.

INSTRUCTIONS: Prepare a brief summary (maximum of 1 A4 page) of Khan v Minister of Law and Order.  Please follow the FILAC structure

SECTION B

 INSTRUCTIONS: Prepare short notes to assist you in the discussion of the following: You should follow the IRAC approach as outlined in the article. 

 The following advert appeared in the newspaper:

'For sale: Healthy human kidney. R20 000.00, payable in advance. Money needed to settle student fee debt. 

Phone 555 123456.' 

Your friend J is in end stage renal failure, but is unlikely to receive a kidney transplant in time due to the shortage of available organs. J has the necessary funds, and wishes to procure the kidney advertised. J asks you for advice on how to proceed. 

Identify the principal:

1. H purchases several acres of land in the country, and builds a house. They had incorrectly assumed that the land which they built on was part of their land. The house is in fact on K's land. Advise H on who owns the house.

D cycles to UCT every day and chains their distinctive custom-made teal bicycle outside Kramer. One fateful day their bicycle is stolen. A month later their friend spots it outside a gym. They report it to the police who investigate and determine that the frame was originally part of D's bicycle. G had purchased it from Shady-

Cycles and had a new chain and wheels fitted. Advise D on who owns the bicycle.   

Identify whether each item is a component part:  

(1) a key to the security gate at a block of flats;

(2) the spare wheel of a motor car. 

Answer rating: 100% (QA)

Section A Khan v Minister of Law and Order Summary Facts In Khan v Minister of Law and Order 1991 the applicants BMW 320i was seized by the South African Police The applicant sought the return of the ... View the full answer