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
>>
2021
>>
[2021] ZAWCHC 170
|
|
Vorster Interior Products CC v Minister of Police and Others (3580 / 2021) [2021] ZAWCHC 170 (31 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: 3580 / 2021
In
the matter between:
VORSTER
INTERIOR PRODUCTS CC
Applicant
and
THE
MINISTER OF POLICE
First
Respondent
WARRANT
OFFICER FRANCOIS STEYN N. O.
Second
Respondent
THE
MAGISTRATE
(GEORGE)
Third
Respondent
THE
CHAIRPERSON
Fourth
Respondent
(
The
Western Cape Gambling and Licensing Board)
Coram:
Wille, J
Heard:
17
th
of August 2021
Delivered:
31st of August 2021
JUDGMENT
WILLE,
J:
INTRODUCTION
[1]
This is an opposed application. A dispute exists as to the
precise nature of
the application. The applicant contends for
the position that the application is akin to that of a review coupled
with a
mandamus
.
Conversely, the first and second respondents
[1]
,
in turn contend for the position that this is merely an application
to set aside the search and seizure warrant
[2]
,
issued by the third respondent. This to search the property of
the applicant and seize various items relating to some alleged
unlawful gambling activity.
[3]
[2]
The applicant’s case is that the warrant falls to be reviewed
and set aside
primarily because the warrant is
ultra
vires
the
provisions of section 21 of the Criminal Procedure Act.
[4]
This because it permitted (2) members of the Western Cape Gambling
and Racing Board
[5]
,
to be present during the search and seizure operation authorized by
the warrant.
[3]
The applicants also submit that the warrant itself is unintelligible
and therefore
unlawful. The respondents resist this
assertion, and further sequence the position, that if the court
indeed finds
that the warrant does fall to be reviewed and set aside,
then in that event, it would be just and equitable, in the
alternative,
to grant a preservation order as formulated in the
respondents’ provisional counter application.
THE
FACTUAL MATRIX
[4]
During November 2020, the second respondent became mindful of some
suspected illegal
gambling activity at an ‘Internet Café’
situated in George.
[6]
He had received certain information in this connection, from members
of the Gambling Board. Further investigation followed
and he
endeavoured to detect whether there was indeed unlawful gambling
activity piloted at these premises. This proved elusive
as the
premises were fortified by a security gate which proscribed general
entry.
[5]
Thereafter, the second respondent made an application to the police
to conduct a clandestine
operation as this was the preferred
mechanism to establish whether there was indeed unlawful gambling
activity conducted on the
premises. Ultimately, such approval
was granted subject to two qualifications, namely: that section
252A of the CPA
should be always complied with and that the
authorisation was valid only as from the 30
th
of November
2020 until the 30
th
of January 2021. The initial
covert operation was piloted in the beginning of December 2020 and Mr
Petersen, a member of
the gambling board, was to be utilized as the
snare in this covert route.
[6]
Mr Petersen was provided with a distinctive R100 note
[7]
,
for purposes of conducting his investigation. He approached the
security gate to the premises and was afforded entry.
He marked
that there were approximately (50) computer monitors on the premises.
Presently, there were also approximately
(10) personages at the
premises gambling on these computers. He handed to an employee
of the applicant
[8]
,
the distinct note and in turn he was given (100,000 credits), for the
purposes of gambling.
[7]
Mr Petersen proceeded to gamble on a computer situated on the
premises by playing
an interactive game and he lost (29000) credits.
He retained (71000) credits which he ‘cashed-out’. He was
given R71.00
when he ‘cashed-out’. The following
day
[9]
,
a further covert operation proceeded and after being satisfied that
the applicant’s premises were being used for some unlawful
gambling activity, the second respondent deposed to an affidavit for
the purposes of obtaining warrant from the third respondent.
[8]
This affidavit formed an annexure to the affidavit by the second
respondent which,
in turn, formed part of the bundle of
documents
[10]
,
that presented before the third respondent for the purposes of
acquiring the warrant. In summary, the warrant documentation
revealed the following: that some unlawful gambling activity
was taking place at the applicant’s premises: that
this
unlawful gambling activity was directed by Mr Engelbrecht and that Mr
Engelbrecht was in contravention of section 67(1)(a)
– (c) of
the Gambling Act, because the applicant’s premises were not
licensed to conduct gambling or gaming activities
and, there was no
authorisation for the possession of these devices used for this
gambling and gaming activity. The warrant
documentation also
set out the items to be seized in the execution of the warrant.
[9]
The warrant was consequently issued by the third respondent.
Meanwhile, a third
and final covert operation was shepherded which,
again confirmed that some unlawful gambling activity was being
conducted on the
premises. Mr Engelbrecht was directing this
unlawful activity.
[10]
Ultimately, the second respondent entered the premises in order to
execute the warrant. His
affidavit confirmed, inter alia, the
following: that Mr Petersen pointed out Mr Engelbrecht:
that the second respondent
introduced himself to Mr Engelbrecht who
was then informed of the existence of the warrant at the hand of the
third respondent:
that the nature, extent and content of the
warrant was explained and a copy thereof was handed to Mr
Engelbrecht: that he
was informed of his rights: that he
conceded that the premises were used for the purposes of some illegal
gambling activity
inasmuch as the premises were not licensed to
conduct any gambling or gaming activity. Thereafter, Mr
Engelbrecht was formerly
placed under arrest.
[11]
In a control room, on the subject premises, was housed a computer
server capable of mastering
all the other computers on the premises.
Furthermore, there was a safe in this control room. Mr
Engelbrecht was requested
to open the safe. He did not object
and opened the safe. The contents of the safe revealed a
quantity of packets of
cash money that was seized and enlisted under
an inventory. Members of the police together with Mr Petersen
and Mr Fischer
[11]
assisted in the unplugging of the computers used for the illegal
gambling activity on the premises. An inventory was compiled
which listed the following items: approximately (30) computer
screens: approximately (50) power supplies for the computers:
(2) routers: approximately (5) surveillance cameras: some
speakers and mouse pads: (1) mobile phone: a
DVD recorder
and certain cash packets totalling approximately R15 000,00.
DISCUSSION
THE
TIMING OF THE APPLICATION
[12]
As a general rule, an application to review and set aside an order of
a lower court touching
pending criminal proceedings, will not be
accommodated.
[12]
This must be so, because it exiles a lower court from
shepherding the appropriate ‘interests of justice enquiry’
in connection with any seized exhibits under section 35(5) of our
Constitution.
[13]
This principle was re-affirmed in
Thint
[14]
,
to
the extent that the general rule will only be departed from:
‘…
where
injustice might otherwise result or where justice might not by other
means be attained’
[15]
[13]
It is undoubtedly so that the current status of the applicant is that
of an accused person.
This because, inter alia, he was arrested
and charged with contravening the Gambling Act.
[16]
Notwithstanding that the criminal proceedings against him were
provisionally withdrawn for the purposes of further investigation
and
the furnishing of a forensic report in connection with the seized
goods, he remains an accused person. It is contended
by the
respondents that the integrity of this evidence and its admissibility
may only be assured after careful forensic examination
by digital
experts. Further, absent is any evidential material to support
a case of any
-
substantial injustice
– to the applicant, should this court not set aside the
warrant. Indeed, -
exceptional
circumstances
- are also absent the factual matrix.
[14]
Moreover, in this matter there exists on the papers as they now
position, a material dispute
of fact on the role performed by the
members of the Gambling Board, when the warrant was executed.
The applicant contends
for an identifying and ‘non-operational’
role. This is precisely the species of dispute that falls to be
determined
in the lower court.
[17]
WAS
THE WARRANT ITSELF UNLAWFUL
?
[15]
Two objections are chartered against the warrant, namely: that
it is
ultra
vires
as
it permitted (2) members of the Gambling Board to participate in the
search operation
[18]
,
and that the warrant fails to meet the intelligibility
requirement.
[19]
I will in turn deal with these (2) objections. Two issues bear
scrutiny in this connection namely: whether the
warrant was
unlawful
per
se
because it authorised (2) members of the Gambling Board to be part of
the search and seizure operation or whether the warrant was
unlawful
because it allowed these (2) members to provide advisory assistance
in the execution of the warrant.
[16]
It surely cannot be seriously contended that just because the names
of the (2) Gambling Board
officials were recorded on the warrant that
this -
on
its own
- renders the warrant to be struck down for want of compliance with
the relevant provisions of the CPA. It is so that the
(2)
Gambling board members are not -
police
officials –
as
defined
[20]
,
but they are clothed with certain powers for the purposes of search
and seizure operations in terms of the Gambling Act.
Section
14(4)(A) of the Gambling Act permits an authorised member of the
Gambling Board to conduct a search and seizure operation
in relation
to suspected unlawful gambling activity, if they are accompanied by a
police official, in terms of a warrant.
[17]
Both the said members were authorised officers in terms of the
Gambling Act and were thus empowered
to conduct a search and seizure
operation as appears from their certificates of authorisation.
The
ultra vires
objection is accordingly euthanized. No
doubt there are a host of cogent reasons for only the police to
conduct search and
seizure operations. This, inter alia,
precisely because police officials who are cloaked with this vital
statutory power
may be held to account for the exercise of this power
in a manner that does not find application with a civilian.
[18]
In my view, the ultimate test is whether the police official who is
authorised to execute the
warrant remains in effective and overall
control over the search and seizure operation. This ensures that
there can be no room
for abuse
[21]
.
No doubt exists on the facts that the warrant dictated that the
second respondent was to be in effective and overall control
of the
search and seizure operation. The correct approach to be adopted was
eloquently indicated by Rogers J, to be the following:
‘
The
execution of the warrant was attacked on the basis of the
participation of unauthorised officials. I have already dealt
with the facts. There is no substance in the complaint, even
though the use of such large contingent was heavy-handed. The
one unnamed police officer who accompanied the search team did not
participate in the search. In any event, a search is not
rendered unlawful because a person not named in the warrant assists
the named officer provided the named officer remains in control
of
the operation’
[22]
[19]
Significantly, absent before this court are any facts to demonstrate
that the (2) members of
the Gambling Board played any operational
role when the warrant was executed. On this factual basis the -
ultra vires
- challenge is doomed to failure.
WAS
THE WARRANT UNINTELLIGIBLE ?
[20]
The applicant’s core protest is that the warrant is overboard
because it does not prescribe
with any exactitude what or who must be
searched in terms of the warrant. I disagree because in my view
the warrant carefully
regulates what must be searched. Its
limitation is to the searched items used to conduct illegal gambling
activities, inter
alia, listed as trap money, electronic devices such
as computers, computer software, computer hardware, cash registers,
surveillance
equipment, financial records, books, compact discs, or
any storage devices such as flash drives, hard drives, receipts for
money
received, records of winnings, losses, pay-outs to players,
employee records, banking details and all mobile phones on the
premises
used to conduct illegal gambling activities.
[21]
Besides, there is no value in the applicant’s contention that
the warrant is silent on
the identity of the person to conduct the
search. This contention is simply incorrect as the warrant
identifies the second
respondent in terms. In a final throw of
the dice the applicant contends that the warrant was somewhat
‘overboard’
in that it did not specify a timeframe within
which same was to be executed. This complaint may be dealt with
swiftly as
the warrant was executed one day after it was issued.
Furthermore, there was no prospect of the cancelling of the warrant
at the instance of the third respondent.
[22]
As a consequence I am unable to find favour with any of the (3) core
arguments advanced on behalf
of the applicant as reference above.
I find no cogent factual or lawful basis to review and set aside the
warrant.
Accordingly, I find it unnecessary to deal with the
‘just and equitable’ debate in connection with the
provisional
counter application for a preservation order.
ORDER
[23]
For these reasons, the following order is granted, namely:
1.
That
the application is dismissed.
2.
That
in as much as same may be necessary, the provisional counter
application is also dismissed.
3.
That
the applicant is ordered to pay the costs of and incidental to this
application on the scale as between party and party, as
taxed or
agreed.
E.
D. WILLE
(Judge
of the High Court)
[1]
The
first and second respondents shall be referred to as the
respondents, unless otherwise indicated.
[2]
The
‘warrant’ issued on the
on
the 9
th
of December 2020.
[3]
Allegedly
in contravention of section 67(1)(b) of the Western Cape Gambling
Act 4 of 1996 (‘the Gambling Act’).
[4]
Act
51 of 1977, the ‘CPA’.
[5]
The
‘Gambling Board’.
[6]
This
at ‘Unit 8A Market Mall’- 83 Market Street, George (the
‘premises’).
[7]
Bearing
serial number QA 7562516D.
[8]
Mr
Engelbrecht.
[9]
On
the 9
th
of December 2020.
[10]
The
warrant documentation.
[11]
A
member of the Gambling Board.
[12]
Wahlhaus
and Others v Additional Magistrate, Johannesburg and Another
1959
(3) SA 113
(A) at 120B.
[13]
The
Constitution of the Republic of South Africa.
[14]
Thint
(Pty) Ltd v NDPP and Others; Zuma v NDPP and Others
2009
(1) SA 1
(CC) at [65].
[15]
Wahlhaus
op
cit at 120B.
[16]
Section
67(1)(a) – (c), read together with Schedules 1, 4, 5 and 6
thereof.
[17]
BK
and Another v Minister of Police and Others
2020
(1) SACR 56 (WCC).
[18]
Section
20 of the CPA.
[19]
Minister
of Safety and Security v Van der Merwe
2011
(5) SA 61
(CC) at [55 – 56].
[20]
In
terms of section 20 and 21 of the CPA.
[21]
Goqwana
v Minister of Safety and Security and others
2016
(1) SACR 386
(SCA) at [25].
[22]
Mineral
Sands Resources v Magistrate, District of Vredendal
[2017]
2 All SA 599
(WCC) at [210].