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[2016] ZAWCHC 82
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Van den Berg and Another v Page and Others (10636/16) [2016] ZAWCHC 82 (27 June 2016)
Republic
of South Africa
IN THE HIGH
COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case number:
10636/16
Before: The
Hon. Mr Justice Binns-Ward
Hearing: 23
June 2016
Judgment
delivered: 27 June 2016
In the matter between:
JOHAN
FREDERICK VAN DEN
BERG
First
Applicant
GEOSYSTEMS
(PTY)
LTD
Second Applicant
and
DERRICK CLAUDE
PAGE
First Respondent
LEICA GEOSYSTEMS
(PTY) LTD
Second
Respondent
THE MINISTER OF
POLICE
Third Respondent
JUDGMENT
BINNS-WARD J:
[1]
The applicants, who appear to be the
complainants in a criminal matter currently under investigation by
the South African Police
Service (‘SAPS’), applied, as
matter of urgency, for an order declaring an agreement entered into
between the State
Attorney, representing the Minister of Police, who
is the third respondent, of the one part, and the attorneys
representing the
first and second respondents, of the other part, to
be unlawful. The agreement, which is recorded in a letter by
the State
Attorney to the first and second respondents’
attorneys, dated 26 May 2016, provides that the first and second
respondents
will be afforded a copy of a search warrant to be
procured by SAPS to search a computer hard drive currently kept in
the possession
of the registrar of this court five days before the
execution of the warrant. The hard drive had been seized from
the said
respondents during a search executed in terms of an earlier
warrant that had subsequently been set aside for being overbroad.
The object of the agreement is to give the first and second
respondents time to consider their position and decide before the
warrant is executed, to apply to court, if so advised, for the review
and setting aside of the warrant, or any other remedy they
might
consider appropriate.
[2]
It is trite that the subject of a search
warrant is not ordinarily
[1]
entitled to prior notice, either of the application for the warrant
or of its intended execution. Prior notice would, for
obvious
reasons, ordinarily defeat the object of a search warrant. The
subject’s rights are provided for in the ordinary
course in
terms of s 21(4) of the Criminal Procedure Act, which requires
that:
A
police official executing a warrant under this section or section 25
shall,
after such
execution, upon demand
of any person whose rights in respect of any search or article seized
under the warrant have been affected, hand to him a copy
of the
warrant.
(Underlining for
emphasis.)
[2]
The
applicants contend that s 21(4) is a ‘statutory provision
enacted for the police’s benefit’, which operates
‘for
the public’s benefit’.
[3]
[3]
The facts of the current case show that
this is not an ordinary case. As mentioned, a search and
seizure operation has already
been carried out. The article in
issue has been seized and is effectively being retained under
judicial seal.
[4]
On 20 April 2016, in case
no. 11275/2015, this court (per Dolamo J, Desai J
concurring) set aside the warrant in
terms of which the search and
seizure had been executed. But, because the court was satisfied
by the evidence that due cause
for some form of search had existed,
it made what the parties’ counsel referred to in argument as a
‘preservation order’.
The preservation order (set
out in paragraphs 3-5 of the order made in case no. 11275/2015)
directed that the laptop computer
seized at the first respondent’s
home on 21 May 2015 be retained by the registrar of the court
pending the final determination
of criminal proceedings against the
first respondent ‘
or any other
person flowing from complaints of criminal conduct laid by the
[first applicant]
against the
[first respondent]
that gave rise to the
issue of the warrant
’.
[5]
The order directed the cyber forensic unit
of SAPS to make a mirror image of the hard drive of the computer
under the supervision
of the registrar. The mirror image has to
be given to the first respondent. The order also provided 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
first and second respondents and Leica Geosytems AG]
,
save by order of this Court or pursuant to a lawful search warrant
’.
[6]
The relevant terms of the order appear to
have been premised substantially on the formulation of a similar
order proposed in terms
of the minority judgment in
National
Director of Public Prosecutions and Others v Zuma and Another
2008 (1) SACR 258
(SCA), at para 70, and that which Farlam and Cloete
JJA would have preferred to make in
National
Director of Public Prosecutions and Another v Mohamed
2008 (1) SACR 309
(SCA), at para 14. Even in the different
order proposed by Nugent JA, which was endorsed by four of the appeal
court judges
in
Mohamed
(including
Farlam and Cloete JJA), provision was made for the preservation of
real evidence that had been attached in the course
of an unlawful
search and for its possible subsequent production, if so ordered by a
court seized of the relevant principal proceedings.
[4]
Implicit in that provision was that the party whose material had been
seized in the search would have the opportunity in
the contemplated
subsequent proceedings to argue against the making of any order for
the production of the material.
[7]
The applicants’ standing to bring the
current application was not contested. But the propriety of
their having proceeded
with it as an urgent application was
disputed. The uncontroverted evidence is that a fresh search
warrant is being prepared.
That is the basis for the alleged
urgency in the application. The essential test for urgency is
whether proceedings brought
in the ordinary course would not be heard
and determined quickly enough to afford the applicant effective
relief. As the
agreement that the applicants seek to impugn
could be given effect to at any moment, I was persuaded that a
sufficient case for
urgency had been made out. There was some
suggestion that if the applicants had sought an undertaking from the
third respondent
to hold off until the intended challenge had been
determined, it would have been given; and that their failure to have
sought it
had given rise to unnecessary or self-created urgency.
Any strength that contention might have had was effectively defused,
however, by the respondent’s failure to have given the
undertaking. He elected instead to deliver opposing papers on
the merits of the case.
[8]
It appears from the judgment in case
no. 11275/2015 that the court accepted that the first respondent
had private and personal
information stored on the hard drive that
would be of no relevance in the criminal investigation. It did
so, apparently,
without the documents concerned having been precisely
or individually identified or considered. It accepted that the
respondent
had a right of privacy in respect of that information that
was deserving of protection against the intrusion of a police
search.
In this regard Dolamo J remarked as follows at
paras. 46-47 of the judgment:
46.
… 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.
[9]
It is plain that Dolamo J contemplated a
situation in which regulated access to the data on the hard drive
might be afforded to
the investigating authority. The terms of
the order he made expressly provide that the process of obtaining
such access might
be a fresh search warrant. Having regard to
the observations by Dolamo J at para 46-47, quoted above,
careful attention
would probably have to be given to the wording of
the warrant to achieve the sort of discriminative access to the
content of the
hard drive that was contemplated by the learned
judge. It is readily conceivable in the given circumstances
that a situation
might arise in which any questions as to what falls
to be withheld in terms of the respondents’ right to privacy,
and what
does not, might in the last resort have to be determined on
the basis of an independent third party inspection – something
perhaps along the lines of what is done in some contested discovery
disputes where the call is made on the basis of the so-called
‘judicial peek’ procedure.
[5]
[10]
The Criminal Procedure Act does not make
provision for preservation orders of the nature made in the current
case. That they
may be made in appropriate circumstances is,
however, established by high authority. In
Thint
(Pty) Ltd v
National
Director of Public Prosecutions
and
Others
;
Zuma
and Another v National Director of Public Prosecutions
and Others
2009 (1) SA 1
(CC) at para 219, Langa CJ held ‘
that
a preservation order, such as that proposed by the minority in the
Supreme Court of Appeal in the present matter
[
[6]
]
and that handed down on the same day by
the majority of the Supreme Court of Appeal in
Mahomed
,
[
[7]
]
will frequently be a just and equitable
remedy
’.
[11]
The applicants’ counsel pointed out
that
Thint
,
Zuma
and
Mohamed
supra were all cases in which the search warrants in contention had
been issued in terms of s 29 of the National Prosecuting
Authority Act 32 of 1998, not in terms of s 21 of the Criminal
Procedure Act. They sought on that basis to distinguish
what
happened in those cases from a matter in which the search warrant
fell to be obtained and executed in terms of s 21 of
the
Criminal Procedure Act. I am not persuaded that the point of
distinction is well taken. It is clear that the Constitutional
Court treated the crafting of the preservation order relief in those
cases not as a remedy attaching peculiarly to s 29 of
the
National Prosecuting Authority Act, but as an appropriate order made
within the court’s powers in terms of s 172(1)(b)
of the
Constitution following upon the determination of a constitutional
matter; see
Thint
supra,
at para 220. Paragraphs 3-5 of the order made by the court in
case no. 11275/2015 are just such an order.
The order
afforded a customised basis by which a balance was sought to be
struck between an affirmation of the respondents’
basic right
to privacy that had been infringed by the overbroad nature of the
executed warrant and the public interest in the effective
investigation of criminal offences, including by means of search
warrants. Section 21 therefore does not afford the
circumscribed
basis for the determination of the current application
that the applicants’ counsel’s arguments sought to
suggest.
[12]
One of the contentions advanced on behalf
of the applicants is that the impugned agreement impermissibly
amended the court order
‘
without
consulting the other parties or approaching the Court
’.
[8]
That is not so, in my view.
[13]
The court order expressly contemplated that
the hard drive would be accessed in terms of a further search
warrant. In that
sense all the parties were given notice that
such a warrant would probably follow; especially in view of the
court’s statement
that it had been satisfied that there were
sound grounds for the investigation. That, by itself, connoted
a departure from
the ordinary situation in terms of s 21 of the
Criminal Procedure Act, in which a search warrant is visited on the
subject
as a surprise.
[14]
The order was, moreover, made in a judgment
that in relevant part was intended to expressly address the tension
between the public
interest in access to the hard drive by SAPS being
permitted on the one hand and the first respondent’s right to
dignity
and privacy on the other. The judgment referred to the
intensely litigious history of the matter. The court must have
been conscious in that context of the possibility, if not the
likelihood, of future disputes between the parties as to what
material
on the hard drive SAPS might be permitted to access.
The order described a basis for discriminative access, but provided
no procedural framework for achieving it.
[9]
The provision that the first respondent be given a mirror image
of the hard drive implies that the court must have appreciated
that
the respondent would be in a position to finitely identify the
material on it in respect of which he would wish to assert
his right
to privacy. There is no indication in the judgment that SAPS
was understood to have been in a position to identify
precisely the
material that might be on the hard drive that would be relevant in
its investigations.
[10]
The judgment did not indicate how SAPS might address the overbroad
nature of the original search warrant; nor, as a matter
of interest,
do the applicants. In my view the impugned agreement does not
amend the court order, it is directed instead
at providing the basis
upon which the further conduct of the investigation in relation to
the material on the hard drive that was
expressly contemplated in the
terms of the order should proceed.
[15]
That the first respondent be put in a
position in which he has to identify the material on the hard drive
that he maintains should
not reasonably be exposed to SAPS in the
course of a legitimate search would, in my judgement, contribute to
the efficient advancement
of the investigation. The impugned
agreement appears to me to be directed precisely at the achievement
of that object.
It, in effect, calls upon the first respondent
to identify the material he contends must be excluded from the
search. If
he does not, the search will proceed and it will
fall within the discretion of the officer(s) conducting it to
determine what should
be taken and what should be left.
[11]
In the context of the first respondent being possessed of a mirror
image of the hard drive, it would be expected of him,
should he seek
to review any fresh search warrant issued pursuant to the procedure
ordained by the preservation order, to do so
with precise reference
to the material he would contend should be excluded from access, not
with the broad brushstrokes of categorisation
he apparently used in
the previous application. It is implicit in the order made by
Dolamo J and in the impugned agreement
that the first respondent
will do so appreciating that should his identification give rise to a
dispute, the material in issue
will be subjected to independent
scrutiny for the purpose of the determination of such dispute.
That, no doubt, is the sort
of process Dolamo J had in mind when he
referred in para 47 of his judgment
[12]
to ‘
supervised access
’.
[16]
I am not able in the circumstances to
uphold the applicants’ contention that the agreement amounts to
the waiver of a statutory
protection, or is in any way contrary to
the public interest.
[17]
In the result, the application is dismissed
with costs, including the costs of two counsel where such were
engaged.
A.G. BINNS-WARD
Judge
of the High Court
APPEARANCE
Applicants’
counsel:
P.B. Hodes SC
Luke Kelly
Applicants’
attorneys:
Ian Levitt Attorneys
Sandton
Maurice Phillips Wisenberg
Cape Town
First
and Second Respondents’
counsel:
W.A. King SC
P. Eia
First
and Second Respondents’
attorneys:
Werksmans Attorneys
Sandton and Cape Town
Third
Respondent’s counsel:
H. Cronje
Third
Respondent’s attorneys:
State Attorney
Cape Town
[1]
Compare the attachment of the qualification ‘
ordinarily
’
to the equivalent observations made in the context of a discussion
of applications for search warrants in terms of
s 29
of the
National
Prosecuting Authority Act 32 of 1998
in
Thint
(Pty) Ltd v
National Director of
Public Prosecutions
and
Others
;
Zuma
and Another v National Director of Public Prosecutions
and Others
2009 (1) SA 1
(CC)
at paras. 95-100. That the
exigencies of a particular case might require a flexible application
of the provisions
of
s 21(4)
to afford appropriate recognition
of the rights of the subject of the search that may be adversely
implicated was acknowledged
even in pre-constitutional
jurisprudence; see, for example,
Cheadle, Thompson & Haysom
and Others v Minister of Law and Order and Others
1986 (2) SA
279
(W), at 283G, where Coetzee J held that in a case in which
arguably privileged material was found in a search and sought to be
made subject to seizure, the police should not remove it without
first affording the subject an opportunity to apply to court
to set
the warrant aside.
[2]
It has been held that a copy of the affidavit made in support of the
application for the warrant should also be handed over together
with
a copy of the warrant; see
Goqwana v Minister of Safety and
Security NO and Others
2016 (1) SACR 384
(SCA), at para 31.
That also manifests a departure, in the furtherance of
constitutional compatibility, from the strictly
literal tenor of the
subsection.
[3]
Para. 49 of the applicants’ written submissions, dated 23 June
2016.
[4]
See
Mohamed
supra, at para. 34.
[5]
Cf. e.g.
President
of the Republic of South Africa v M&G Media Ltd
2011 (2) SA 1
(SCA),
2011 (4) BCLR 36
and
President
of the Republic of South Africa v M&G Media Ltd
2012 (2) SA 50 (CC).
[6]
National Director of Public Prosecutions and
Others v Zuma and Another
2008 (1)
SACR 258
(SCA) at para. 70.
[7]
National Director of Public Prosecutions and
Another v Mohamed
2008 (1) SACR 309
(SCA).
[8]
Para. 35 of the applicants’ written submissions, dated 23 June
2016.
[9]
Contrast, for example, the comparable order made in
Craig Smith
and Associates v Minister of Home Affairs and Others
2015 (1)
BCLR 81
(WCC);
[2014] ZAWCHC 127
(4 August 2014); 2014 JDR 1703, in
which, at paras. 17-20 of the order, a procedure was expressly
provided for any disputes to
be resolved concerning access to
material on a hard drive seized during a search authorised in terms
of
s 33
of the
Immigration Act 13 of 2002
.
[10]
It is not incumbent on SAPS to individually or specifically identify
the files on the hard drive that may be relevant in its
investigation – reference to a genus would be sufficient for
the purpose of obtaining a warrant; cf.
Minister of Safety
and Security v Van der Merwe
2011 (1) SACR 211
(SCA);
[2011] 1
All SA 260
;
[2010] ZASCA 101
(7 September 2010), at para 11 and
Naidoo and Others v Kalianjee N.O. and Others
2016 (2) SA 451
(SCA);
[2015] 3 All SA 679
;
[2015] ZASCA 102
(29 June 2015), at para
24.
[11]
Cf.
Polonyfis v Minister of Police and Others NNO
2012 (1)
SACR 57
(SCA), at para. 19.
[12]
Quoted in paragraph [8], above.