About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2016
>>
[2016] ZAWCHC 63
|
|
Page and Others v Additional Magistrate, Somerset West and Others (11275/2015) [2016] ZAWCHC 63; [2016] 3 All SA 619 (WCC) (20 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
Number:
11275/2015
DATE:
20 APRIL 2016
In
the matter between:
DERRICK
PAGE
.............................................................................................................
First
Applicant
LEICA
GEOSYSTEMS
AG
........................................................................................
Second
Applicant
LEICA
GEOSYSTEMS (PTY)
LIMITED
...................................................................
Third
Applicant
Vs
THE
ADDITIONAL MAGISTRATE, SOMERSET
WEST
.....................................
First
Respondent
PHINEAS
LETSHOLO
MOTEME
........................................................................
Second
Respondent
JOHAN
FREDERICK VAN DEN
BERG
.................................................................
Third
Respondent
GEOSYSTEMS
AFRICA (PTY)
LTD
....................................................................
Fourth
Respondent
THE
MINISTER OF SAFETY &
SECURITY
..........................................................
Fifth
Respondent
Date
of hearing: 11 + 12 November 2015
Date
of Judgment: 20 April 2016
JUDGMENT
DOLAMO, J
INTRODUCTION
[1]
This assertion may appear to be banal. It is nevertheless worth
restating: it is the duty of the South African Police Service
(“SAPS”) to prevent, combat and investigate crime; to
maintain public order; to protect and secure the inhabitants
of the
Republic and their property; and to uphold and enforce the law
[1]
.
To this end the police are empowered, in appropriate circumstances,
to obtain from a magistrate or Justice of the Peace search
warrants
to search persons, or to enter premises, search and seize articles
believed on reasonable grounds to be involved in or
associated with
the commission of crimes. Although search and seizure procedures are
essential to the combatting of crime they
are and remain matters
which may infringe upon personal rights and privileges protected by
the Constitution
[2]
. For this
reason searches and seizure warrants are to be authorised and
executed with circumspection.
[2] The central
question in this matter is whether the search warrant which the
second respondent obtained from the first respondent,
based on
information supplied by the third respondent, was legitimately
obtained and for a lawful purpose: if not, whether it was
obtained
for a sinister motive as contended for by the applicants, in which
case they stand to be set aside. A further question
is if the warrant
is unlawful what to do with the article seized pursuant such a
warrant: first I outline the involvement of the
various parties in
this matter, thereafter the factual background and then the legal
principles involved.
The
Parties
[3]
The first applicant is Derrick Claude Page (“Page”) an
adult male employed as a regional manager by the third applicant.
The
second applicant is Leica Geosystems AG (Leica AG) a company duly
incorporated in terms of the company laws of Switzerland.
The third
applicant is Leica Geosystems (Pty) Ltd South Africa (“Leica
SA”) a company with limited liability and registered
as such
according to the company laws of South Africa (“Leica SA”)
but collectively be referred to as Leica Geosystems.
These companies
Leica AG and Leica SA conducted business associated with Geomatics
and Metrology products which include surveying
and measurement
devices.
[4]
The first respondent is Mr Monde Mafeya, an Additional Magistrate
Somerset West (“Additional Magistrate”), who is
cited
herein in his capacity as such and as a result of the fact that on 2
April 2015 he authorized the warrant for the search
and seizure which
took place at Page’s residence. This warrant was issued in
terms of section 21 of the Criminal Procedure
Act
[3]
(“CPA”). The second respondent is Lieutenant Colonel
Phineas Letsholo Moteme (“Moteme”) a member of the
SAPS
stationed at the Commercial Branch in Johannesburg and who is cited
herein in his capacity as the investigating officer of
a criminal
complaint filed at the Norwood Police Station in Johannesburg under
CAS 304/4/2014. The warrant issued by the Additional
Magistrate was
issued relating to the investigation in the aforesaid CAS number. The
third respondent is Johan Frederick Van Den
Berg (“Van Den
Berg”) the complainant in CAS 304/4/2014. I shall also refer to
Van Den Berg as “the complainant”.
The fourth respondent
is Geosystems Africa (Pty) Ltd (“GSA”) a company duly
registered and incorporated according to
the company laws of South
Africa. The fifth respondent is the Minister of Safety and Security
(the “Minister”) who
is cited herein in his official
capacity and as the person responsible for the actions and conduct of
the members of SAPS.
[5]
The applicants sought an order reviewing and setting aside the
decision of the Additional Magistrate to authorise the search
warrant
against Page. The applicants also sought an order declaring the
search warrant and the execution thereof unlawful, inconsistent
with
the constitution and invalid; a declaration that the applicants’
right to dignity, freedom and security of person, privacy
and
property were violated. Page also sought an order for the return of
the computer seized pursuant the search warrant and the
destruction
of any mirror images made of the said computers’ contents. The
application was initially opposed by all the respondents.
The
Additional Magistrate, Moteme, and the Minister of Police, however,
had since withdrawn their opposition and filed notices
to abide the
decision of the Court.
Background
[6]
GSA was previously a distributor of Geometric products on behalf of
Leica AG in South Africa. The relationship between GSA and
Leica AG
was governed by various distribution agreements concluded over the
years. Leica AG, however, terminated this agreement
by giving written
notice of termination to GSA which termination would have been with
effect from 31 October 2013. This termination
led to a dispute
between Leica AG and GSA with the latter alleging that a Leica
Geosystems which orchestrated the cancellation.
There is a high
degree of animosity between the parties associated with Leica AG, on
the one hand, and those on the side of GSA,
which bad blood has
generated a host of legal actions. Amongst the legal action which was
ongoing at the time was a matter in the
Competition Tribunal where
GSA was accusing the directors of Leica SA of unlawful competition.
[7]
It was through the discovery processes in the matter before the
Competition Tribunal, that three emails came to light which,
according to Van Den Berg, were indicative of Page’s unlawful
conduct. The first email reads as follows: “
Hi
Ken, will do. Locksley is in China next week… I have also told
them to make appointments with key clients we can visit
together. It
took us just as long to get up and running when we started as each
department needs something from another to proceed.
Locksley has used
affirmative action people to bribe the process to go faster to no
avail…
”. The second email
reads as follows: “
Hi Helgard this
will be fine but please use 60% discount on both the TS30 and TM30…
Try and not give it away cheaply make
some profit GAS will be causing
affairs because this is a premium product and I do not want the price
eroded… be careful
as this can cause trouble… be 5%
less than GAS
”. The third email
stated that: “
Hi Ken Locksley and
Helgard will start approaching GAS stuff from the 11 July 2011
”.
[8]
As a result of the discovery of these emails Van Den Berg laid
criminal charges against Page at the Norwood Police Station during
April 2014 under CAS 304/4/2014. Moteme was the assigned
investigating officer in that matter. In the affidavit supporting the
charges (“police statement”) Van Den Berg alleged that he
laid the charges as a result of the misrepresentations made
by Page
which seriously disadvantaged him and led to the loss of his
consultancy business with GSA; and that since the laying of
the
charges he came into possession of certain documents which were
discovered in terms of the Competition Tribunal case in which
Leica
Geosystems AG was the respondent. Copies of these documents were
attached to the affidavit which included the three emails
referred to
supra.
[9]
In the police statement, Van Den Berg indicated that the allegations
contained in the emails, referred to
supra,
may be further corroborated by
information which may be located on Page’s laptop computer
(“laptop”). As a result
of these allegations Moteme
applied, in terms of sections 20, 21 and 25 of the CPA for a warrant
to search the premises of Leica
Geosystems (Pty) Ltd at 74 Mountain
Road, Somerset West and to look for information which may corroborate
Van Den Berg’s
allegations. The Additional Magistrate
authorised a search warrant on 2 April 2015 in terms of which the
police were authorised
to search the premises of Leica Geosystems
(Pty) Ltd and thereat to seize the computer(s) belonging to Mr
Derrick Page, documents
and files relating to Geosystem, documents
relating to Lonmin Platinum Mine Gel Survey Solutions, documents
relating to Cullinan
Diamond Mine, Northan Platinum Mine, and
documents relating to PPL Mogalakwena Mine. The warrant further
authorised as follows:
“
to make
mirror images of all computers and hard drives and other computer
peripherals capable of storing data or to seize the computer
hardware
and associated peripherals and to conduct an offside (sic) search of
the hardware and associated peripherals for the articles
as listed
and identified in annexure A hereto, if upon arriving at the scene
the technical support unit member of the South African
Police Service
assisting in executing the search warrant concludes that it will be
impractical to search the computer hardware
and associated
peripherals on site for the articles as listed and identified in
Annexure hereto
”. The warrant was
to be executed by Lieutenant Colonel JA Beukes (“Beukes”)
of the DPC Commercial Branch of the
SAPS Bellville and Warrant
Officer AH Draai (“Draai”) of SAPS Cape Town Central.
[10]
Armed with the search warrant Beukes and Draai attended at Page’s
home on the morning of 21 May 2015. The police officers
duly
introduced themselves, informed Page and his fiancé that they
were looking for Page in connection with fraud and corruption
complaints, instigated against Leica Geosystems, and that they have a
search warrant. When Page mentioned that it was not possible
that
Leica Geosystems could have instigated the investigation, as he was
working for Leica Geosystem. Draai informed him that he
did not know
who had instigated the search warrant but he was there to search and
seize the laptop and documents. Page further
alleged that Draai and
Beukes were hostile and unsympathetic towards him and his fiancé,
treating them like criminals by
insinuating, for example, that their
home and material possessions were the proceeds of crime. They
were particularly not
interested in his explanation that Leica
Geosystems was involved in mortal legal combat with GSA, which legal
battles included
the matter pending before the Competition Tribunal,
as a possible motive for the search warrant. Draai and Beukes also
did not
let them out of sight throughout the duration of their
presence on the premises. He was, however, allowed to make a
telephone call
to his attorney. Draai, who spoke on the telephone
with Page’s attorney and intimated that he did not know how a
search warrant
works.
[11]
During the course of the search Draai accompanied Page to his office
and instructed him to open a filing cabinet. He then searched
the
cabinet but did not seize anything. Page had two laptops in the
office: one belonging to Leica AG and the other being his personal
property. When he explained this to Draai the latter chose the Leica
AG laptop and left the one belonging to Page. This, according
to
Page, was contrary to the search warrant which only authorised the
seizure of a computer or computers belonging to Page.
[12]
Later three additional police officers arrived on the premises.
Captain Morris (“Morris”) who was one of the three
police
officers, identified himself to Page. The police then proceeded to
take photographs in the house. Captain Morris thereafter
seized the
computer, placed it in a plastic bag, sealed it, and put Page’s
personal particulars thereon. Page was requested
to give all the
passwords to this computer so that they could access the computer and
all his emails, which he supplied under protest.
While Captain
Morris’s name did not appear on the search warrant he was the
one who removed the computer from Page’s
home. According to
Page, the wrong laptop was seized and not the one authorised by the
search warrant.
[13]
Page alleged that the computer contained no evidence or suggestion of
any criminal acts nor could any information contained
therein serve
as evidence of any alleged criminal wrong doing by Leica SA, and/or
himself as alleged by Van Den Berg. The computer
however contained
sensitive and private information,
inter
alia,
of his personal banking details,
bank passwords, private communication with his fiancé and his
interaction and dealings concerning
his tax affairs with the South
African Revenue Services. He objected to any stranger having access
to this private information
which had nothing to do with what was
mentioned in the search warrant. The computer also contained,
according to Page, extensive
correspondence between the attorneys
assisting Leica Geosystem and himself in the Competition Tribunal
matter and documents concerning
the preparation for and evidence
gathering in both the High Court civil damages claims.
[14]
Page alleged that, though the information on the laptop was
privileged and may not be seized or copied the warrant authorised
the
copying thereof, that furthermore, that he had no doubt that the
Additional Magistrate, fully appraised of all the disputes,
litigation and defences raised in the other related matters, would
not have issued the warrant, alternatively, would have issued
it with
a lot more limitations as to what may be seized, accessed and/or by
whom.
[15]
After seizure of the laptop Beukes retained it at the Bellville SAPS.
Later Page’s attorneys intervened in the matter
leading to an
agreement being reached that the computer would be and was placed in
the care and custody of an independent attorney,
one McClusky
Attorneys of Bellville. A week later, however, Van Den Berg’s
attorney also intervened and, on his insistence,
the computer was
removed from McClusky and eventually deposited with the Registrar of
this Court where until the present is in
such custody.
[16]
Page averred that the computer was seized for an ulterior motive and
not in pursuit of the investigation of criminal charges
against him.
He submitted that the timing of Van Den Berg’s application for
a search warrant was remarkably coincidental
and contrived to be
ancillary to the discovery application brought in the Competition
Tribunal proceedings. Further there were
inexplicable similarities to
the affidavits of Van Den Berg in the warrant application and the
averments relied upon in the damages
claim, save that the warrant was
far more vague and insubstantial. According to Page, Van Den Berg was
using the SAPS machinery
to obtain privileged and private information
and this amounted to a clear abuse of the process and underlined the
reasonable apprehension
that the search warrant application was
initiated with ulterior motive as its reason. Given the information
contained on the seized
computer Page submitted that it will, in the
hands of Van Den Berg, GSA or its employees, undermine and allow the
obtaining of
confidential information relating to all of the matters
referred to above.
[17]
Van Den Berg and the GSA, while not opposing the review and setting
aside of the decision of the Additional Magistrate to authorise
the
search warrant and the search itself and abiding the decision of the
Court, nevertheless filed a conditional counter application
for the
preservation of the laptop which was seized from Page. Van Den Berg’s
contention was that the preservation of the
laptop was effectively to
ensure that serious and incriminating evidence, that in all
likelihood would be contained on the laptop
concerning the unlawful
and criminal conduct of Page and Leica AG, was preserved pending the
outcome of any criminal prosecution,
of Page, be it a public or
private one.
[18]
Overall Van Den Berg conceded that the Court was bound to make a
declaration under section 172 (1) (a) of the Constitution
and,
equally important, to exercise its discretion in granting an order
which is just and equitable as contemplated by section
172 (1) (b) of
the Constitution. He, however, maintained that it will be just and
equitable to preserve evidence of criminal wrong
doing in
circumstances such as the present one. He submitted that any
prejudice or unfairness to Page and Leica AG will be comparatively
negligible. For this reason he urged this Court to grant the relief
sought in the counter application by ordering that the laptop
be
retained through a preservation order pending the outcome of the
criminal proceedings against Page and Leica AG. Relying on
the
Constitutional Court judgment in
Thint
(Pty) Ltd v NDPP and Others; Zuma v NDPP and Another
[4]
,
Van Den Berg contended that the laptop seized in the search should be
preserved even if the search warrant was found to have been
unlawful.
[19] The Minister of
Police’s (formerly referred to as the Minister of Safety and
Security) attitude towards the validity
of the search warrant was
clear: it was unlawful and should be set aside. It is its attitude
towards the preservation of the laptop,
as sought by Van Den Berg in
the conditional counter-application, which is somewhat ambivalent.
The Minister indicated that it
will not be opposing the setting aside
of the warrant and the return of the items attached pursuant thereto
and the State Attorney,
on his behalf, wrote a letter to the
applicants attorneys stating that:
“
1.
We address you on behalf of the second and fifth respondents herein.
2.
We have now conducted an investigation into the circumstances that
led to the application for the search warrant that forms
the subject
matter of the above application and set out our instructions in this
regard below.
3.
Our instructions are to concede that the search warrant authorised by
the first respondent on 2 April 2015 in Somerset West is
invalid and
fails to be set aside on the basis that it is overbroad, in that it
fails to identify with sufficient particularly
the alleged offences
being investigated. Moreover insufficient grounds are adduced to
justify the search for the seizure of the
items listed in Annexure A
to the warrant.
4.
Consequently, the subsequent search of the premises situated at 74
Mountain Road, Somerset West and the seizure of a laptop computer
seized from the first applicant at the premises, but allegedly the
property of the second applicant, is similarly unlawful and
invalid
and falls to be set aside.
5.
However, our instructions are that the papers that served before the
Magistrate do disclose reasonable grounds to believe that
the first
applicant unlawfully influenced the award of a lender by the
Department of Water Affairs on or about 8 August 2012. The
email
exchange is annexed to the second affidavit of the complainant in the
matter, Johan Frederick van den Berg, the third respondent
herein.
6.
In that affidavit reference is made (at paragraph 4) to emails dated
7 and 8 August 2012 between the first applicant and one
Helgardt Van
Heerden (Van Heerden) of Aciel in which the first applicant advises
van Heerden to “be careful as this can cause
trouble… be
5% less than GSA”.
7.
According to van den Berg (paragraph 6) these emails “clearly
demonstrate, Page was instrumental in ensuring that Aciel
was awarded
the tender by means of illegal collusion with Van Heerden of Aciel.
Page was both aware of both the price that GSA
and Aciel would tender
at and illegally advised Aciel to tender at 5% less than the GSA
tender”.
8.
Prima facie, these emails suggest that the first applicant misued
information acquired in the course of the exercise of his contractual
obligations to the fourth respondent in a manner that amounts to the
violation of a legal duty to achieve an unjustified result,
in
contravention of
section 3
of the
Prevention and Combating of Corrupt
Activities Act 12 of 2004
. The circumstances surrounding how the
information came to be used and the nature of the benefit the first
applicant derived from
his conduct are still subject to
investigation.
9.
The South African Police Service is under a constitutional duty to
legal duty to unlawfully investigate the matter and to institute
criminal proceedings should same be warranted.
10.
The first applicant concedes in these proceedings that the computer
seized does indeed contain “highly sensitive and private
information” relevant to him such as his personal banking
details, his bank passwords, private communications and his
information
relating to his tax affairs. He avers that the computer
contains that most “comprehensive store” of information
he
possesses. (paragraph 37).
11.
The computer also contains commercial information pertaining to the
second and third applicant such as information about their
distributors, products, pricing and sales strategies. (paragraph 38).
12.
The computer therefore may well afford evidence of the circumstances
surrounding first applicant’s alleged misuse of information
relevant to the fourth respondent (i.e. the price at which it would
make available Leica products to the Department of Water Affairs
in
its tender). It may also afford evidence of communication between the
first applicant and Van Heerden and the first applicant
and the third
respondent, such as the emails adduced before the Magistrate who
granted the search warrant.
13.
If the computer is returned to the first applicant a real risk that
incriminating evidence may be removed before a valid warrant
to seize
it is obtained.
14.
In the circumstances, our instructions are to enquire whether your
clients would consent to a preservation order along the lines
dealt
with in Thint (Pty) Ltd v National Director of Public Prosecutions
and Others; Zuma v National Director of Public Prosecutions
and
Other
s 2009
(1) SA 1 (CC) (Thint CC) paragraph 216 – 224, which
(as appears from paragraph 219) must be read with the order proposed
by the minority in Thint (Pty) Ltd v National Direcott of Public
Prosecutions and Other v Zuma and Another
[2008] 1 ALL SA 197
(SCA)
and the order made by the majority in National Director of Public
Prosecutions and Another v Mahomed
[2008] 1 ALL SA 181
(SCA).
15.
The purpose of the preservation order would be to permit the fifth
respondent to make a mirror image of the computer and have
the copy
retained by the Registrar of the High Court for a period of one
month. In that period SAPS members will be afforded the
opportunity
of obtaining a valid warrant to seize the laptop and to search its
contents in a constitutionally permissible manner.
16.
Should your client be amenable to this proposal the parties could
approach the judge in chambers for an order along these lines.
Failing which we will be constrained to oppose the application and
seek the preservation order to the above grounds. We will place
this
letter before court to motivate that, in the event that a
preservation order is granted, the costs of preparing the application
in support of a preservation order and any opposition thereto, should
be borne by the party opposing the preservation order.
17.
For the sake of completeness we confirm that under no circumstances
will the complainant in the matter be permitted access to
the
information seized other than in accordance with the law, i.e. if the
information is adduced before a criminal court to sustain
criminal
charges. Whilst the second and fifth respondents have been provided
with evidence from the complainant, no information
has been provided
to the complainant by SAPS.
18.
We have no dealt herein with all the averments contained in the
affidavits filed of record and our failure in this regard should
not
be construed as an admission of their contents. They will be dealt
with at the appropriate time if the need arises.
19.
Please also advise whether you intend supplementing the papers or
amending the notice of motion so that we can determine the
time-frame
within which answering papers are to be filed.”
[20]
It was in counsel for the Minister’s submission that the
ambivalence towards a preservation order came to the fore. The
puzzling attitude of the Minister was furthermore mirrored in the
affidavit of Zidiya, filed in what he referred to as having been
necessitated by Van Den Berg’s conditional counter-application
for a preservation order. Zidiya, a Constable in the SAPS
who
replaced Moteme as the investigating officer of the complaints laid
by Van Den Berg, acknowledged that from his perspective
much of what
was dealt with by the applicants and the third and fourth respondents
in their affidavits, respectively, were strictly
not germane to the
criminal investigation and that this were not the relevant issues to
be determined in this matter.
[21]
On the history of the investigation into the charges laid by Van Den
Berg Zidiya stated that in November 2014 the Public Prosecutor
assigned to the matter was of the view that the docket contained
insufficient evidence to sustain a successful criminal prosecution
and declined to prosecute. On this basis the docket was archived and
the investigation was deemed finalised; that the docket was
reopened
in February 2015 when further evidence came to light which required
further investigation; that his predecessor, Moteme,
applied for the
search warrant in question, had it authorised and subsequently
executed; that on the advice of the Minister’s
legal
representatives it was conceded that the search warrant authorised by
the Additional Magistrate on 2 April 2015 failed to
comply with the
requirements for a valid search warrant as articulated in the
Constitutional Court judgment of
Minister
of Safety and Security v Van Der Merwe and Others
[5]
;
that the warrant was therefore invalid and rendered the subsequent
search in terms thereof unlawful. Zidiya also attacked the disclosure
by Van Den Berg of the letter of 16 July 2015, quoted
supra,
which the State Attorney directed to the applicant’s attorneys
on the grounds that it was privileged.
[22]
Zidiya stated further that after reviewing the status of the
investigation and the evidence available in the docket, with due
regard to the requirements of a preservation order and the advice of
the fifth respondent’s legal representatives, it was
decided
not to pursue an application for a preservation order in the matter
but pursue alternative avenues of investigation. These
alternative
avenues of investigation, however, were not disclosed. According to
Zidiya these were the reasons for attempting to
settle the matter
with the applicants by conceding the invalidity of the warrant and
tendering the return of the computer. He argued
that this approach
would have had the advantage of remedying expeditiously and costs
effectively the harm caused by the execution
of the invalid warrant
whilst at the same time permitting the investigation to run its
course.
[23] Zidiya stated
categorically that it was his understanding at all times that should
any further investigation uncover sufficient
evidence to justify
applying for a search warrant afresh, he will in due course be free
to approach a magistrate for a search and
seizure warrant. He denied,
as was suggested by the applicant, that the criminal complaints were
without merit. While he was not
commenting on the merits of the
conditional counter application for a preservation order he
maintained that the investigation in
the matter was ongoing and that
the result would in due course be brought before a prosecutor to
determine whether criminal charges
would be proffered against any
person; that under no circumstances can the Minister be obliged to
seek a preservation order in
every case where a defective warrant was
obtained or a warrant was unlawfully executed.
[24]
The applicants contended that the warrant was invalid and falls to be
set aside on the basis that it is overbroad, in that
it fails to
identify with sufficient particularity the alleged offences being
investigated. The invalidity of the warrant as already
stated, was
conceded by the respondents.
[25]
The applicants also complained of egregious conduct in the execution
of the warrant. In this respect the applicant contended
that the
seizure of the computer constituted a serious inroad into the private
sphere of the applicants; that the laptop contained
items the seizure
of which constituted a serious breach of privacy which affected the
inner core of the personal and intimate sphere;
that it would be
impossible to separate information in that private sphere from
possible information which the complainant sought;
that the
complainant has no
locus standi
to prevent the computer being returned to its lawful owner by
applying for a preservation order, a competency which falls squarely
within the ambit of SAPS: that there was insufficient evidence to
justify even asking for a warrant, the complainant having failed
to
place before the additional Magistrate an adequate and objective
basis to justify the issue of the warrant; and that, absent
such
sufficient evidence or serious allegations against Page, no
preservation order can or should be granted.
[26]
To oppose the provisional counter application Page relied heavily on
Zidiya’s submission that there was no need for a
preservation
order and that the laptop should be returned. The applicants further
argued that the complainant has a strong motive
to manipulate a
search and seizure warrant in order to advance GSA’s
Competition Tribunal complainant and damages claim and
that this was
corroborated by Van Den Berg’s request that the computer be
kept until the end of the civil cases.
[27]
The applicants submitted that where a warrant and the accompanying
search was ruled unlawful and was set aside, a preservation
order and
access to the items seized must be dependent on and subject to a new
and valid search warrant being authorised. The new
search warrant
would be essential to direct and control access to the laptop which
contained sensitive and private information
of which the unlawful
accessing of which would amount to criminal conduct, so argued the
applicant.
[28]
Expounding on the lack of
locus standi
of the complainant, the applicants submitted that it was evident from
the provisions of
sections 20
and
21
, coupled with a reading of
sections 28
,
29
and
30
of the CPA that these specifically allow only
the State to seize articles in terms of a search warrant. The
applicants argued that
the Service Charter for Victims of Crime in
South Africa does not extend the right of a complainant in a criminal
case to have
control over the police investigation, which the
applicants alleged was what Van Den Berg sought in this matter.
[30]
The argument by the applicants that only the State has the right to
apply for a search warrant misses the point. It was not
Van Den Berg
who applied for a warrant; it was Moteme, in the cause of his
investigation of CAS304/4/2014 Norwood SAPS, who applied
for a search
warrant. All what Van Den Berg did was to lay criminal charges. It
was in the course of investigating these criminal
charges that Moteme
applied for a search warrant. It is far-fetched to argue that Van Den
Berg was seeking control over the police
investigation when he
applies for a preservation order of the laptop. Application for the
search warrant, which correctly is the
duty of the SAPS was at the
instance of Moteme who was acting in the execution of his duties as a
member of the SAPS. The conditional
counter-application for a
preservation order is a separate process. Here the Court would not be
guided by who was on duty to apply
for a preservation order but
rather by whether there are reasonable grounds for the preservation
of the laptop which may contain
additional incriminating evidence to
corroborate the emails referred to
supra
.
[30]
I deem it unnecessary to deal with any degree of particularity the
argument relating to private prosecution, as in my view
the emails in
question, if corroborated by further evidence, would be sufficient to
sustain a prosecution by the State and alleviate
a need for a private
prosecution. The prospects of a private prosecution would only arise,
and open for determination, if the State
decline to prosecute in the
face of overwhelming additional evidence which may be obtained from
the seized laptop.
[31]
The applicants’ main submission was, given that the
unlawfulness of the warrant was conceded, the laptop together with
any mirror images which may have been made should be returned to
Page. Van Den Berg on the other hand, argued that there are grounds
for granting an order for the preservation of the laptop,
alternatively its mirror image, must be kept which by the Registrar
of this Court, where it is currently deposited. The crisp question is
whether it would be in the interest of justice to grant a
preservation order in the circumstances of this case?
[32]
The complainant contended that if the warrant is set aside, the
laptop should be preserved as it is likely to contain evidence
of the
criminal conduct that gave rise to the criminal charges and the
subsequent issue of the search warrant. According to the
complainants
to return the laptop to the applicants could cause the loss of
incriminating evidence. Although the invalidity of
the search and
seizure warrant was conceded by the respondents, I deem it necessary,
in order to contextualise the conditional
counter-application for a
preservation order of the laptop, to briefly deal with the legal
requirements for the issue of and the
terms of a warrant obtained
pursuant the provisions of
section 21
, read with
section 20
of the
CPA.
[33]
Search warrants are necessary tools in the gathering of evidence for
purposes of criminal prosecutions. As stated in the opening
paragraph
it is however, necessary to put in place safeguards to prevent the
abuse of this important tool for preventing, combatting
and
investigating crime so that the privacy of the person affected by the
search warrant may only be impaired in the least intrusive
manner and
on justifiable grounds. For this reason, the authority to issue
warrants is vested in judicial officers who, because
of the qualities
and skill they possess, are best suited for the proper exercise of
this power
[6]
.
[34]
Section 21
of the CPA furthermore requires that the decision to issue
a warrant be made only if the evidence in support of the application
objectively establishes the existence of a reasonable suspicion that
a crime has been committed, and the existence of reasonable
grounds
to believe that objects connected with the offence may be found on
the premises or persons intended to be searched.
[35]
As regards the terms of the warrant the Constitution requires the
specification of the offence in the warrant. This was confirmed
by
the Constitutional Court in
Magajane
v Chairperson North West Gambling Board and Others
[7]
that failure to specify the offence in the warrant may lead to its
invalidity
[8]
. See also
Thint
(Pty) Ltd v National Director of Public Prosecutions and Others; Zuma
and Another v National Director of Public Prosecutions
and Others
[9]
.
The warrant therefore must set out with reasonable particularity the
offence which underlines the search and the article the police
are
directed to search for and seize. Mogoeng J (as he then was) held in
the
Van
Der Merwe
[10]
case that the specification of the offence in the warrant facilitates
intelligibility while its absence hinders it. Particularity
would
avoid vagueness or overbroad
[11]
.
[36]
The Courts have always paid close attention to the terms of the
warrant to ensure that they are neither too general, nor vague
or
overbroad
[12]
. There are two
jurisdictional facts for the issue of a search warrant: these are the
existence of a reasonable suspicion that a
crime has been committed
and the existence of reasonable grounds to believe that objects are
connected with that crime.
[37]
Another aspect on which a warrant, once obtained, may be contested is
the lawfulness of the manner of its execution. Where
there has been
particularly egregious conduct in the execution of the warrant a
Court may, in addition to setting aside the warrant,
refuse to grant
a preservation order of any items seized. In any other situation, the
Court may grant a preservation order even
where the warrant may be
declared unlawful if it is just and equitable to do so.
[38]
In
Thint
the Court held the search warrant to be lawful. Langa CJ, however,
went on to discuss what the relief should be when a Court concludes
that a search warrant was unlawful, as is the case in this
matter
[13]
. He held that a
preservation order would frequently be a just and equitable remedy.
In this respect he held that such an order,
(i.e a preservation
order) would be appropriate in this context, putting an end to the
differing views held by the SCA Judges.
On the question of the powers
of a Court to grant just and equitable remedies derived from section
172 (1)(b) Langa CJ held that
[14]
:
“
[220]
The judges in the Supreme Court of Appeal differed as to whether a
preservation order is a competent order at all. Farlam
JA thought
that it fell under the court's power to grant 'just and equitable'
remedies in terms of s 172(1)(b) of the Constitution.
Nugent JA
disagreed. I am of the view that s 172(1)(b) of the Constitution does
permit a preservation order to be made. That section
explicitly
states that a court deciding a constitutional matter may make
any order that is just and equitable including an
order 'suspending
the declaration of invalidity for any period and on any conditions,
to allow the competent authority to correct
the defect'. This section
thus expressly contemplates an ongoing violation of a right pending
rectification by a competent authority.
It should also be noted
that s 172(1)(a) is not limited to declarations of invalidity in
respect of laws but also includes
declarations of invalidity in
respect of conduct. From the start, this court has recognised that at
times there will be considerations
of justice and equity which
outweigh the need to give immediate relief for the breach of a
constitutional right. A preservation
order raises similar questions
of balancing the need to protect the right to privacy on the one
hand, with other important public
considerations on the other.”
[39]
Langa CJ considered a preservation order to be an appropriate remedy
basically for two reasons. Firstly he found that preliminary
litigation on the validity of search warrants has the potential to
delay the commencement of trials. Secondly, that it is the trial
Court which should primarily be concerned with ensuring trial
fairness in general and can deal with the admissibility of evidence
in particular, by applying its discretion in terms of section 35 (5)
of the Constitution. He concluded that this will open the
way for a
Court, when it finds a warrant to be unlawful, to preserve the
evidence so that the trial Court can apply its section
35 (5)
discretion to the question whether the evidence should be admitted or
not. In my view only the second reason may find application
in this
matter.
[40]
Langa CJ, however, did not grant the Courts a blanket jurisdiction to
order preservation of evidence obtained through an unlawful
search
and seizure. Where the applicant can identify specifications the
seizures of which constituted a serious breach of privacy
that
affects the inner core of the personal or intimate sphere, or whether
there has been particularly egregious conduct in the
execution of the
warrant, a preservation order should not be granted. The use of the
words “
only if an applicant can
identify
” in my view seems to
convey that a preservation order would ordinarily be granted unless
there was a serious violation of
the right to privacy which infringes
the inner core of the personal or intimate sphere and where the
warrant was executed in an
egregious manner that a court should
refuse to grant a preservation order.
[41]
The applicants argued that the circumstances of this would justify
the refusal to grant a preservation order. Page pointed
out that the
laptop contained highly personal details of his financial affairs as
well as intimate correspondence with this fiancé
which were
private and affecting the inner core of his personal and intimate
sphere. He also complained about the execution of
the warrant
claiming that the conduct of the police was egregious and about the
manner in which the warrant was executed. His main
complaint was that
Beukes and Draai arrived at his home in the morning; that they
appeared not to know exactly what they were authorized
to search and
seize; that they were hostile and unsympathetic towards them; and
that they were treating them like criminals. This
according to Page,
was particularly egregious conduct which was unlawful and would
justify a refusal to grant a preservation order.
[42]
It is indeed correct that Beukes and Draai arrived at Page’s
home at 8:20. Though relatively early it is not that early
as to
amount to a serious disturbance of Page and his fiancé’s
peace and privacy. The two police men duly introduced
themselves and
announced the purpose of their presence. They could have been
uncertain about the exact documentation they were
looking for because
of the broadness of the search warrant but they knew that they have
to search and if found seize a laptop and
documents.
[43]
The authorities referred to do not define which conduct would qualify
as egregious leading to a refusal to grant preservation
order. The
Oxford Dictionary defines “
egregious
”
as outstandingly bad or shocking conduct. The conduct complained
about must therefore be outstandingly or shockingly bad
to be
classified egregious. In my view such conduct must not only be an
irritant or inconvenience to the person searched but must
be
outrageously bad so as to shock any right thinking individual. The
conduct Page complained about does not reach this level.
It cannot in
the premises be classified as egregious.
[44]
No particulars of the alleged hostile and unsympathetic conduct of
Beukes and Draai were furnished. How they were treated as
criminals
was also not particularised except that it was insinuated that their
possession were the proceeds of crime. How this
was insinuated was
not explained. Beukes and Draai. They were armed with a warrant which
they believed was valid and surely could
not have been expected to
call off the execution of the warrant merely on Page’s
explanation of the rift between Leica Geosystem
and GSA. In my view
more was expected from the applicant to satisfy the Court that the
search was carried out in an egregious manner.
On the evidence
furnished by Page I am not convinced that the search was conducted in
an egregious manner.
[45]
I now look at whether Page had identified items the seizure of which
would constitute a serious breach of his privacy. There
is no doubt
that correspondence between Page and his finance, as well as matters
relating to his personal financial affairs are
of a personal and
intimate nature. Access to these documents would constitute a serious
breach of privacy that affects the inner
core of their personal or
intimate sphere. Page has been able to identify and specify in broad
strokes that the seizure of these
documents would infringe upon his
right to privacy.
[46]
There was, however, no allegation that any unauthorised person has
had access to these private documents, notwithstanding the
availability of his passwords. The laptop was in the possession of
the police only for a brief moment. Therefore it was in the
possession of McClusky Attorneys, again for a brief moment. It has
since been in the safe custody of the Registrar of this Court.
I am
in no doubt that with the necessary safeguards in place access to
information of the private documents of a personal and intimate
nature which may lead to a breach of his right to privacy may be
prevented. This will preserve any incriminating evidence which
may
later be used to advance any criminal prosecution which may be
instituted.
[47]
Such safeguards may include, providing for supervised access to the
contents of the laptop, separating those documents which
contain
information of an intimate or personal nature from the rest,
restricting access to the emails which only have a bearing
on the
dealings by Geosystems with any anti-competitive activities of a
criminal nature.
[48]
The emails referred to in paragraph 7
supra
raise concern that Page or his associates may have been involved in
corrupt activities relating to tenders in which Leica Geosystems
had
an interest. There is, in my view, a reasonable possibility that
other emails on the laptop seized may offer more information
which
may conclusively prove the commission of an offence or offences.
Search warrants have been authorised to search for items
for items
which are expected to exist. Nugent JA in
Minister
of Safety and Security v Van Der Merwe
[15]
put it as follows:
“
[11]
In some cases it will be known that a particular article exists that
is connected with the suspected crime. In those cases
the purpose of
the search will be to discover the particular article, and the
article will thus be capable of being described in
specific terms. In
other cases it will not be known whether any particular article
exists, but it can be expected that an article
or articles of a
particular kind will exist if the offence was committed. In such
cases the purpose of the search will be to discover
whether such
articles or article exist/s, and thus they or it will be capable of
being described only by reference to their genus.
It is in relation
to warrants of this kind that problems of validity most often arise.
It will be inherent in the nature of the
authority to search that the
searcher might, in appropriate circumstances, be entitled to examine
property that is not itself connected
with the crime- for example,
the contents of a cupboard or a drawer, or a collection of documents
– to ascertain whether
it contains or is the article that is
being sought.”
It
was argued on behalf of the applicants that it is not sufficient to
point to the three emails as proof of criminal activities
on the part
of the applicants without proof that Geosystems in fact did apply and
used the devious means to obtain the tenders
in question. Secondly
that the word “
bribe
”
was used in a different context and did not mean and was not intended
to convey that in fact anyone was bribed to facilitate
the
achievement of the desired outcomes.
[49]
There are no merits in both these arguments. The grammatical meaning
of the word “
bribe
”,
as a verb, means dishonestly persuading someone to act in one’s
favour by payment or other inducement. Under the
common law the crime
of bribery could only be committed by or in respect of a State
official. Under the Prevention and Combatting
of Corrupt Activities
Act
[16]
it has been extended
to include private persons. It is now a crime for any person who
directly or indirectly agree to accept any
gratification from any
other person or to give or agree or offer to give to any other person
any gratification in order to act,
personally or by influencing
another person to act in a manner that amounts to the illegal,
dishonest, unauthorised, incomplete
or biased (or misuse or selling
information) exercise, carrying out or performance of any power,
duties or function arising out
of a Constitutional, statutory,
contractual or any other legal obligation. Such action must amount to
an abuse of a position of
authority, a breach of trust or a violation
of a legal duty or set of rules and designed to achieve an
unjustified result.
[50]
These emails were said to have been used in relation to a tender in
which company was interested. It does not matter whether
Geosystems
tendered or, if it had tendered, was awarded the contract; it is
sufficient for purposes of the crime of corruption
if Geosystems and
its employees or agents attempted to influence the process or outcome
by offering a gratification, as it was
admitted in one of the emails.
[51]
In my view there are reasonable grounds to believe that Page and his
associates have been engaged in unlawful conduct which
may lead to
prosecution on a charge of corruption. Secondly the emails in
question may be part of a series and may conclusively
prove the
involvement in criminal conduct on the part of Page and his
associates. In the circumstances it would be just and equitable
to
preserve the mirror image of the laptop so seized with the necessary
safeguard as to his privacy. A mirror image of the hard
drive of the
laptop must be made of only the emails and/or any other document, not
of a private or intimate nature, which find
to prove the commission
of the offence of corruption or bribery.
[52]
On the question of costs I am of the view that both sides have
achieved significant success in the matter. The applicants were
successful in challenging the validity of the search warrant, on the
one hand, and the complaints succeeded in achieving the main
objectives of the counter-application. In the circumstances I deem it
fair and just that no costs order should be made.
[53] The order I
make is therefore the following:
1.
the decision of the first respondent of 2
April 2015 to authorise a search warrant in respect of Derrick Page
at 74 Mountain Road
Somerset West and the search warrant are hereby
set aside.
2.
the execution of the search warrant and the
search and seizure operation on 20 May 2015 at 74 Mountain Road
Somerset West are hereby
declared inconsistent with the provisions of
the Constitution of the Republic of South Africa and as such are
declared invalid
and set aside.
3.
the Registrar of this Court is authorised
and ordered to retain custody of the laptop computer (“the
laptop”) seized
on 21 May 2015 by fifth respondent at the home
of the first applicant in pursuance of the execution of the warrant
of search and
seizure issued with respect to the first applicant by
the first respondent on 2 April 2015 until;
3.1 the finalisation
of a my criminal proceedings against the first applicant or any other
person flowing from the complaints of
criminal conduct laid by the
third respondent against the first applicant that gave rise to the
issue of the warrant (“the
complaints”); or
3.2
in the event of the Office of the Director of Public Prosecutions
issuing a certificate
nolle prosequi
with respect to the
complaints, the final determination of a private prosecution of those
complaints by the third respondent, which
private prosecution is to
be instituted within 60 days of the third respondent in this matter
receiving such certificate, whichever
may be later.
4.
a mirror image of the harddrive of the
laptop (“the mirror image”) be made by the Cyber Forensic
Unit of the SAPS under
the Registrar’s supervision;
5.
the mirror image be given to the first
applicant, and that, save for the making of the mirror image, no
person shall be permitted
to access the content of the laptop without
the consent of the applicants, save by order of this Court or
pursuant to a lawful
search warrant.
M
J DOLAMO
HIGH
COURT JUDGE
I
agree, it is so ordered
S
DESAI
HIGH
COURT JUDGE
[1]
see
section 205 (3) of the Constitution of the Republic of South Africa.
[2]
see
Key
v Attorney-General Cape of Good Hope Provincial Division and Another
1996 (6) BLCR 788 (CC)
[3]
Act
51 of 1997
[4]
2009
(1) SA 1
CC
[5]
2011
(5) SA 616
(CC)
[6]
See
Minister
of Safety and Security v Van Der Merwe
2011 (5) SA 61
at para 37
[7]
[2006] ZACC 8
;
2006
(5) SA 250
(CC)
[8]
See
Van
Der Merwe supra.
[9]
2009
(1) SA 1
(CC)
[10]
Referred
to
supra
[11]
See
Powell
NO and Others v Van Der Merwe NO and Others
2005
(5) SA 62
(SCA)
[12]
Thint
at para 88.
[13]
Thint
at para 129
[14]
Thint
at
para 220.
[15]
2011
(1) SACR 211
at para 11.
[16]
See
section 3 of Act 12 of 2004.