“I was recently arrested on a charge of possession of possible stolen property and the property seized and removed by the SAPS. I have purchased this property from the owner but the owner falsely laid a charge of theft at the SAPS. Upon my arrest, I gave the proof of payment to the officers and ultimately the criminal charges were withdrawn by the Court. I have requested the SAPS to return the property but they refused indicating that the property is evidence. What can I do?”

To answer your question, it is important to look at the applicable section in the Criminal Procedure Act, 51 of 1977 as amended.

 Section 20 of the abovementioned act allows a member of the South African Police Service to seize certain property when in accordance with the provisions of that Chapter, seize anything (in that Chapter referred to as an article

(a) which is concerned in or is on reasonable grounds believed to be concerned in the commission or suspected commission of an offence, whether within the Republic or elsewhere;

(b) which may afford evidence of the commission or suspected commission of an offence, whether within the Republic or elsewhere; or

(c) which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence.

 When the SAPS then wants to dispose of the article then Section 30 is applied which states:

 A police official who seizes any article referred to in section 20 or to whom any such article is under the provisions of this Chapter delivered-

 (a) may, if the article is perishable, with due regard to the interests of the persons concerned, dispose of the article in such manner as the circumstances may require; or

(b) may, if the article is stolen property or property suspected to be stolen, with the consent of the person from whom it was seized, deliver the article to the person from whom, in the opinion of such police official, such article was stolen, and shall warn such person to hold such article available for production at any resultant criminal proceedings, if required to do so; or

(c) shall, if the article is not disposed of or delivered under the provisions of paragraph (a) or (b), give it a distinctive identification mark and retain it in police custody or make such other arrangements with regard to the custody thereof as the circumstances may require.

 When no criminal proceedings are instituted or if the items so seized in not required for evidence at the trial, then Section 31 becomes applicable, which states:

 (1) (a) If no criminal proceedings are instituted in connection with any article referred to in section 30 (c) or if it appears that such article is not required at the trial for purposes of evidence or for purposes of an order of court, the article shall be returned to the person from whom it was seized, if such person may lawfully possess such article, or, if such person may not lawfully possess such article, to the person who may lawfully possess it.

(b) If no person may lawfully possess such article or if the police official charged with the investigation reasonably does not know of any person who may lawfully possess such article, the article shall be forfeited to the State. [Para. (b) substituted by s. 2 of Act 5 of 1991.] (2)

 The person who may lawfully possess the article in question shall be notified by registered post at his last-known address that he may take possession of the article and if such person fails to take delivery of the article within thirty days from the date of such notification, the article shall be forfeited to the State.

 Turning to the facts as indicated in the question, it would appear that Court already withdrew the charges against the person and as such one must look to the provisions of Section 34 of the Act.

 Section 34 empowers a court to at the conclusion of such proceedings, but subject to the provisions of this Act or any other law under which any matter shall or may be forfeited, make an order that any article referred to in section 33-

 (a) be returned to the person from whom it was seized, if such person may lawfully possess such article; or

(b) if such person is not entitled to the article or cannot lawfully possess the article, be returned to any other person entitled thereto, if such person may lawfully possess the article;

(c) if no person is entitled to the article or if no person may lawfully possess the article or, if the person who is entitled thereto cannot be traced or is unknown, be forfeited to the State.

 If no such application was made to the Court when the charges were withdrawn the court may be approached in terms of Section 34(3) where the Court will then be called upon to make a finding regarding the items so seized.

 So, to answer the question, it will be required that you approach the court again, this is normally done on application to the same court which heard the matter for an order that the property be released to you.

 In this application it is suggested that you fully explain to the court, how you became owner of the property so seized by the SAPS and why you are of the view that this property should be returned to you.

 It is important to clearly inform the court that in all likelihood the criminal proceedings will not be re-instituted and give the Court the facts relating to why you are claiming these goods.

 Alternatively you may approach any Civil Magistrates Court with the necessary jurisdiction with an action in terms of the rei vindication and sue the Minister of Police for return of your property.

 Reference List:

• The Criminal Procedure Act, Act 51 of 1977 as amended