About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2011
>>
[2011] ZAGPJHC 48
|
|
Ayob and Others v Director of Public Prosecutions and Others (2009/4644) [2011] ZAGPJHC 48 (29 May 2011)
REPORTABLE
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
CASE NO: 2009/6444
DATE: 29/05/2011
In the matter between:
ABDOOL
SATTAR
AYOB
............................................................1
st
Applicant
MOHSIN
AYOB
............................................................................
2nd
Applicant
RIZWANA
AYOB
..........................................................................
3rd
Applicant
and
DIRECTOR
OF PUBLIC PROSECUTIONS
............................
1st
Respondent
INVESTIGATION
OFFICER SSI LERM
...................................
2nd
Respondent
MINISTER
OF SAFETY & SECURITY.
....................................
3rd
Respondent
…
..........................................................................................................
J
U D G M E N T
MOKGOATLHENG J
(1) The
applicants instituted these proceedings consequent upon the search
warrants issued by Judge Preller in chambers at the North
Gauteng
High Court on the 27 October 2008. The search warrants were sought in
terms of
section 29 of National Prosecuting
Authority Act 32 of 1998 (The Act)
and
authorised the search of certain premises belonging to and occupied
by the applicants. The purpose of this application is to
set aside
the search warrants and the seizure of the applicants articles.
THE FACTUAL MATRIX
(2) On the 29 October
2008 at approximately 8:30am, the first applicant, his son Mohammed
Ayob and the second applicant were at
their premises at Unit 4 Kariba
Street No. 17 Powerville – Vereeniging when eight policemen in
civilian clothing entered
the premises, and informed them that they
had search warrants to search the premises. The premises were
searched.
(3) Another
search was conducted at No. 12A Bukhari Street, Dadeville, 52 Kerk
Street Heilbron, pictures and video tapes of the
search were taken
and an inventory of the goods seized and removed was made. A further
search was also conducted at No. Fridoze
Street, Dadeville –
Roshnee, and at the second respondent and Mohammed Ayob’s
employment. The police seized
inter alia:
(a) one tower computer
of a company;
(b) one laptop and a
passport belonging to Mahommed Ayob;
(c) the first
applicant’s cell phone, and two cell phones belonging to his
wife; and
(e) from
the first applicant’s shop in Heilbron, boxes of cigarettes,
boxes of Grand – Pa, “
three
account books,
” text books on
chemistry and paper works.
(4) Subsequent to the
search, the first and second applicants and Mohammed Ayob were
arrested and charged with fraud, and appeared
at the Vereeniging
Magistrate’s Court on the 13 October 2008 where they were
subsequently released on R5 000.00 bail respectively.
THE
FACTUAL BACKGROUND LEADING TO THE APPLICATION FOR THE SEARCH
WARRANTS
(5
) The
genesis of the search warrants is predicated upon the investigation
ordered by the Western Cape Regional Head of the Directorate
of
Special Operations on 16 September 2008 in terms of
section
28(13) of the Act
pertaining to the
commission or attempted commission of specified offences pursuant to
the
Drugs and Drug Trafficking Act, Act 140
of 1992
which were allegedly committed or
attempted to be committed in an organised fashion by the first and
second applicants and Mohammed
Ayob.
(6) The second respondent
was designated as an investigator of the preparatory investigation.
The second respondent received reliable
information regarding a drug
syndicate operating between Gauteng and the Western Cape, indicating
that the syndicate intended to
distribute on a massive scale illegal
drugs by concealing same in the packaging of Grand – Pa
Headache Powder a legitimate
pharmaceutical product.
(7) On
verification of the information the second respondent discovered from
Johannes Jurie Theron of “
Basically
Branding
” in July 2008, that the
second applicant and Mohammed Ayob had concluded a contract with a
printing company “
Basically Branding
”
in Vereeniging to print facsimiles of the standard 38 sachets size
Grand – Pa boxes for R7 454.99.
(8) Theron was suspicious
of the request as he was aware that the printing rights for Grand –
Pa were held by GlaxoSmithKline.
He reported the matter to Grand –
Pa and agreed to work with the South African Police Service in
investigating the matter.
The first and second applicants and
Mohammed Ayob were kept under surveillance by the South African
Police Service surveillance
team which monitored the transactions and
their activities.
(9) The surveillance
revealed that on 24 July 2008, the second applicant ordered a further
10 000 printed Grand – Pa boxes,
380 00 printed Grand –
Pa wrappers and 20 000 seals from the printing company. On 11 August
2008 the second applicant and
Mohammed Ayob visited Solar Stainless
Steel in Elsies River, Western Cape and placed an order in the amount
of R68 000.00 for the
manufacturing of a wrapping machine similar to
the one used by GlaxoSmithKline who are the manufacturers of Grand –
Pa headache
powders.
(10) On 20 August 2008 an
amount of R34 000.00 was electronically deposited into the bank
account of Solar Stainless Steel by the
second applicant. On 8
September 2008 Theron received a cash amount of R15 700.00 as a
deposit towards the pre-ordered Grand –
Pa packaging.
(11) The second applicant
requested Theron to print a specific batch number and expiry date on
the packaging, which after been checked,
correlated with the
particulars of a batch manufactured by GlasxoSmithKline in February
2008. The second applicant also asked that
the leaflet normally
included in Grand – Pa packaging should also be copied, and
that 100 000 thereof should be printed.
THE FORMULATION OF
REASONABLE SUSPICION
(12) The second
respondent testified that during the investigation, the surveillance
team identified the premises from which the
first and second
applicants and Mohammed Ayob were operating from as Unit 4, 17 Kariba
Street, Vereeniging. An operational decision
was taken to covertly
enter the aforesaid premises to obtain samples of the product which
was manufactured in order that it could
be tested and analysed.
(13) Authorisation
in terms of
section 252A
of the
Criminal
Procedure Act 51 of 1977
was obtained in
respect of the covert entry into the premises. The covert entry of
the premises occurred on or about 23 October
2008. Lionel Snyman of
the Law Enforcement Unit of the Department of Health was present when
the premises were entered.
(14) On
entering the premises, it was patent that the premises were being
used for the manufacturing of a drug-like substance which
resembled
Grand – Pa Headache Powder and which was being packaged in the
Grand – Pa packaging which Theron had provided.
The
surveillance team inspected the drug-like substance and the various
chemicals which were used to manufacture same.
(15) On the premises
there were approximately 500 packets which contained 38 sachets of
the drug-like substance. There were also
2 mixing bowls which
contained chemicals which were mixed and ready to be packed. Further,
the wrapping machine was set up to wrap
the drug-like substance and
only needed to be switched on. Various chemicals which were used in
the manufacture of the drug-like
substance and illicit and/or
contraband cigarettes were found stored on the premises.
(16) The day after the
covert entry took place Snyman contacted the second respondent and
informed him that he had done preliminary
tests on one of the samples
of the drug-like substances to identify the chemicals used in its
manufacture. He advised that the
drug-like substance appeared to be
hazardous for human consumption.
(17) The samples were
taken to a forensic laboratory for testing and analysis. No final
results are yet available. However, preliminary
forensic results
obtained from testing the drug-like substance indicate that it is
harmful substance which does not mimic medicinal
qualities, the
composition whereof was not manufactured as a generic version of the
Grand – Pa product, as it is potentially
life threatening if
consumed by humans.
(18) As consequence of
the hazardous nature of the drug-like substance found on the premises
together with the fraudulent packaging,
it was essential that it not
be allowed to be distributed and/or mixed with genuine Grand –
Pa pharmaceutical products.
(19) The
second respondent states that he believed that the first and second
applicants and Mohammed Ayob were complicit in the
planned, ongoing,
continuous or repeated attempt of contravening
sections
14(1)
,
18
(1),
22C
(5) and
19
(1)
read
together with
sections 29(b)
and (k) and
section 30
of the
Medicines and Related Substances Act, 101 of 1965
,
which contraventions were in an organised fashion.
(20) In view of the
aforesaid information the second respondent states that he reasonably
suspected that an offence which might
be a specified offence, had
been committed or an attempt to commit such offence was being made,
consequently, that there was a
need for a search and seizure warrant
to prosecute the investigation further.
THE
APPLICATION
FOR THE SEARCH WARRANTS
(21) On
the 27 October 2008 the second respondent made an affidavit in
support of the application for the search warrants in terms
of
section 29 of the Act.
This affidavit was, presented to Judge Preller in chambers at the
North Gauteng High Court. The Honourable Judge Preller considered
same and authorised the issuing of six individual search warrants.
(22) On the 29 October
2008 at approximately 8:30am and 10:30pm, search seizure operations
were conducted at the applicants various
premises. Upon entering the
premises, the second respondent states that they identified
themselves as members of the Directorate
of Special Operations, and
informed the first and second applicants of the purpose for which
they sought entry to the premises
in order to execute the search
warrants. The third applicant was not present.
(23) The contents of the
search warrant was presented and explained. The search was conducted
with strict regard to decency and
order in relation to the rights of
the persons present. Also present was an adult male who stated to
Senior Special Investigator
May that he was an attorney. The attorney
perused the search warrant and declared that it was in order.
(24) All the persons
present at the various premises were treated with the utmost respect
and dignity. Before the questioning commenced
all present were
advised of their constitutional rights.
(25) During the
execution of the search warrants at 52 Kerk Street Heilbron the
following items were found at the premises:
(a) boxes, paracatemol,
caffeine and aspirin in powder form,;
(b) a stainless steel
paper folding machine, approximately 300 cartons of cigarettes in
boxes;
(c) packaging material
and paper and steel tables;
(d) a huge quantity of
salicylic acid;
(e) one drum of aspirin
(acetylsalicylic acid);
(f) seven drums of
salicylic acid;
(g) seven drums of
caffeine;
(h) eleven large carton
boxes of paracetamol;
(i) a stainless steel
paper folding machine and Grand – Pa wrappers or sachets
thereon; and
(j) 300 cartons of
illicit cigarettes.
(26) The information
received and gathered turned out to be correct. Chemicals were found
in the manufacturing process of the drug-like
substance. Machinery
and equipment used in the manufacture, weighing, calibration,
packaging, storage and distribution of the drug-like
substance was
found on the premises.
(27) The search and
seizure operation gave rise to a reasonable suspicion that the first
and second applicants and Mohammed Ayob
were in possession of
articles and documents concerned in the commission or suspected
commission of the crimes identified in the
search warrants.
THE
A
PPLICANT’S SUBMISSIONS
(28) The applicants
contend that:
(a) the application for
the search warrants was not accompanied by any material information
under oath justifying the violation
of their constitutional rights to
dignity, privacy and economic freedom;
(b) they
had a right to examine the “
information
on oath”
referred to in the search
warrants and relied upon by the second respondent to secure the
search warrants;
(c) the search warrants
were issued without first hearing their version and without providing
them with the protection to enable
them to establish what their
rights were and how they were to enforce such rights;
(d) there
was no “
reasonable grounds
”
or credible information for believing that any of the articles seized
from their possession were concerned in the commission
or suspected
commission of an offence within the Republic of elsewhere;
(e) the
application for the search warrants was not supported by any factual
material on the strength of which it could have been
concluded that
the objects of
section 29 of the Act 32 of
1998
would be defeated if prior notice of
the application had been given to them or if safeguards were built
into the order in terms
of which they were given a fair chance to
establish and enforce their rights before they were invaded;
(f) the second respondent
did not apply his mind to the matter in respect of which the search
warrants were sought, consequently,
the search warrants are
over-broad;
(g) there is no rational
connection between the wide terms of the search warrants sought and
the grounds for the justification for
such search warrants; and
(h) the
respondents have not justified, as
section
36 of the Republic of South Africa Constitution Act 108 of 1996
decrees, the limitation they sought pursuant to the search warrants
in respect of the power conferred upon them by
Act
32 of 1998
for infringing their
constitutional of rights; and
THE
RESPONDENT’S SUBMISSIONS
(29 The
respondents contend that Judge Preller is a necessary party to these
proceedings, and should have been joined as a party
because he has a
direct and substantial interest in any order which this Court might
make, consequently the non-joinder is fatal
to the applicants case.
(30) The search warrants
were lawfully issued by Judge Preller after applying his mind to and
considering the second respondent’s
affidavit.
The applicants rights to
privacy, dignity or to practice their trade were not infringed. The
applicants were not entitled to be
heard by the Honourable Judge
Preller before the search warrants were issued nor were they entitled
to a hearing before the authorisation
of the search warrants.
THE ANALYSIS OF EVIDENCE
(31) The gravamen of the
applicant’s case is that:
(a) the search warrants
issued by Mr Justice Preller were irregularly issued in that they
were not based on information on oath,
consequently, the said search
warrants are unlawful;
(b) Mr Justice Preller
was a victim of serious misrepresentation which led to him issuing
the search warrants without properly applying
his mind thereto; and
(c) the
exclusive reliance predicating the search and seizure operation is
based on the authorisation given in terms of
Section
252A of Act 51 of 1977
and not on
The Prevention of Organised Crime Act.
(32) The contention that
the second respondent misled Mr Justice Preller to issue the search
warrants, and that the latter issued
the search warrants without
having recourse to information on oath, that consequently, the search
warrants were a nullity is without
merit.
(33) The
application for the search warrants was lawfully authorised and did
not intrude upon the applicants right to dignity, privacy
and
economic freedom. A Judge prior to issuing search warrants under
section 29 of the Act
is
not legally obliged to hear an affected person’s “
side
of the story”
or version
.
In my view the second respondent acted in
good faith and made a full and objective disclosure of all material
facts to Judge Preller.
See
Mohamed v NDPP
and Others
[2005] ZAGPHC 90
;
2006 (1) SACR 495
WLD para (110(b)-(d).
(34) The allegations made
against the Honourable Judge Preller are unfounded. What is
disconcerting is the fact that the allegations
have been made in the
absence of the Honourable Judge having been cited and joined as a
party to this application.
(35) The
applicant’s contention that “
had
the said search warrants been preceded before their issue by the
careful application of the mind”,
safeguards
would have been built into the search warrants, consequently,
“no
consideration was given to the serious impact the search and seizure
operation would have”
has no merit.
(36) The
applicants misconceive the jurisdictional prerequisites of
section
29 of
the Act
that an article may only be seized by a search warrant on application
to a Judge, ensures that the intrusion upon an individual’s
rights to privacy, dignity or to practice a trade are safeguarded.
(37) The
object of
section 21
read with
section 20 of the Act
would be defeated “
if prior notice of
the application had been given to the applicants or if safeguards
were built into the search warrants in terms
of which they were given
a fair chance to establish and enforce their rights before they were
invaded”.
(38) There
is no provision in the
Act
that prior notice ought to be given to the affected party of the
intention of the State to obtain search warrants or that safeguards
be built into the order in terms of
section
21
read with
section
20 of the Act.
(39) In
my view due to the peculiar countervailing circumstances, this is a
case wherein it was not necessary to inform the applicants
of the
planned search and seizure operation. Due to the nature of the
contraventions it was reasonably necessary to infringe the
right to
privacy of the applicants. The search operation was conducted within
the ambit of the investigation pursuant to
the
Act
.
(40)
Section
21
envisages an ex parte application, the
procedure has the element of surprise to preampt or frustrate the
concealment or detection
of crime or impede the investigation
thereof. In my view, this procedure is not unconscionable as alleged
by the applicants because
there was the distinct danger that the
object of the search and seizure operation would be pre-empted and
accordingly render the
investigation nugatory.
(41) The second
respondent’s affidavit spells out the reliable information
received in detail regarding an alleged drug syndicate
operating
between Vereeniging in Gauteng and the Western Cape. The information
clearly indicated that the syndicate of which the
first and second
applicants were part of intended to mass distribute illegal drug-like
substances by concealing same in the packaging
of a recognised
reputable pharmaceutical product.
(42) The second
respondent explains in full detail the apparently unlawful activity
and conduct in pursuance of the syndicates exploits
which culminated
in an operational decision been taken to covertly enter the premises
to obtain samples of the product manufactured
in order to test and
analyse same.
(43) In
my view the second respondent’s belief was reasonably formed
and lawfully justified an application to Judge Preller
in chambers to
issue the search warrants in terms of
Section
29(5) of Act 32 of 1998
as the
jurisdictional requirements thereof were satisfied and met.
(44) The
Honourable Judge Preller, by appending his signature to the search
warrants, confirmed that it appeared to him from the
information on
oath that there were reasonable grounds to believe that there were
articles or documents on the premises used,
in the commission of or
in the suspected commission of an offence in contravention of
Act
101 of 1965
and
the
Medicine and
Related Substance Act 121 of 1998.
(45) The search warrants
contain a list of four premises to be searched. although one falls
outside the jurisdiction of the court
from which the impugned search
warrants were issued, in my view there was no jurisdictional or
territorial legal bar which precluded
Judge Preller from issuing the
search warrants in respect of premises situate in the Free State.
(46) The
contention that Judge Preller was unlawfully and intentionally misled
into believing that the investigation involved the
manufacture/distribution/possession of drugs contemplated in
Act
140 of 1992
has no merit. The second
respondent specifically stated that the drug-like substance seized
were forwarded to the Forensic Laboratory
to be analysed, that the
results were still awaited.
(47) The
search warrants
specifically
allude to the search for the and seizure of
“all
machinery and or equipment, chemicals used in the manufacture of
packaging, storage and distribution of the drug-like
substance”
and all documents, files, computers, all information pertaining to
the search manufacture and storage transport
of the drug-like
substance”.
WHETHER THE LIMITATION OF
APPLICANTS RIGHTS WERE REASONABLE AND JUSTIFIABLE
(48) The
applicants state that the second respondent has not justified, or
even made any serious efforts to justify the limitation
of their
rights pursuant to
section 36(1) of the
Constitution
.
(49) Section
21 read with section 20 of the Act authorises the State to
seize
certain articles pursuant to a search warrant issued in terms of
section 21
. The
object is to enable the State to obtain evidence to institute a
prosecution in respect of certain alleged offences. The search
and
seizure operation impacts seriously on the constitutional rights to
privacy, dignity and the right to practise a trade. The
rights
encapsulated are buttressed in the Constitution by values of human
dignity, freedom and equality.
(Zuma v
national Director of Public Prosecutions and Others
2009 (1) SA 1
(CC) para [76]; Bernstein and Others v Bester and Others NN)
[1996] ZACC 2
;
1996 (2)
SA 751
(CC) para [77] and Investigating Directorate: Serious Economic
Offences and Others v Hyundai Motor Distributors (Pty) Ltd and
Others:
In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit
N O and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC) para [18].
(50) Constitutional
rights may be limited under certain circumstance in terms of section
36(1) of the Constitution, which provides:
“The
rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation
is reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom taking into account
all relevant
factors, including–
the nature of the right;
the importance of the
purpose of the limitation;
the nature and extent of
the limitation;
the relation between the
limitation and its purpose; and
less restrictive means
to achieve the purpose”.
(51) The
right to privacy, dignity and to practice a trade, occupation or
profession are not absolute. These rights are mutually
limiting, and
need to be balanced and reconciled by limiting the exercise of the
one right to the extent necessary to accommodate
the exercise of the
other, or by limiting the exercise of both or all the rights as
required by the particular circumstances of
the case within the
constrains imposed by section 36 of the Constitution (See Midi
Television t/a E-V v Director of Public Prosecutions
(Western Cape)
[2007] ZASCA 56
;
2007 (5) SA 540
(SCA) para’s [9]-[11]).
(52) It
is a trite principle of our law that search and seizure provisions of
the Act, constitute a reasonable and necessary limitation
on the
right to privacy to combat crime. In balancing and reconciling, the
right of the State to fight crime by detecting and prosecuting
same
and the rights of the applicants, i.e. the right to privacy
underpinned by the right to dignity and the freedom to practice
his
or her trade, occupation or profession and the right to fair legal
process, in the prevailing circumstances the limitation
of the
applicants rights to privacy was reasonable and justifiable in terms
of section 36 of the Constitution. (See: Investigating
Directorate:
Serious Economic Offences and Others v Hyundai Motor Distributors
(Pty0 Ltd and Others (supra) paras [54]-[55].)
(53) In
the matter of
Thint (Pty) Ltd v National
Director of Public Prosecutions and Others
[2008] ZACC 13
;
2008 (2) SACR 421
(CC)
at
the Honourable Langa CJ held the following:
“Although
a search and seizure operation will inevitably infringe a person’s
right to privacy, the Act provides considerable
safeguards which
ensure that the infringement goes no further than reasonably
necessary in the circumstances. Furthermore, the
requirement of
judicial authorisation for search warrants is only one aspect of a
broader scheme which ensures that the right to
privacy is protected.
First,
a judicial officer will exercise his or her discretion to authorise
the search in a way which provides protection for the
individual’s
right to privacy. Second, once the decision to issue the search
warrant has been made, the judicial officer
will ensure that the
warrant is not too general nor overboard, and that its terms are
reasonably clear. At the third stage, the
right to privacy may still
be vindicated by a reviewing court, which can strike down overly
broad warrants and order the return
of objects which were seized in
terms thereof. Finally, the criminal trial must be fair, and an
accused person is entitled to object
to any evidence or conduct that
may render the trial unfair.
Understanding
the range of protections for the right to privacy at the
different
stages of a criminal investigation and trial is important. Courts
must take care in ensuring protection for the right
to privacy, they
do not hamper the ability of the State to prosecute serious and
complex crime, which is also an important objective
in our
constitutional scheme.”
THE OVER-BROADNESS OF THE
SEARCH WARRANTS
(54) The
appellants contend that the search warrants were over broad in that
the search warrants were crafted and treated as one,
and were in
identical terms “
as in a case of one
size fits all,
” further that the
search warrants as a whole were over-broad in that there is no
rational connection between the wide terms
of the search warrants
sought and the grounds for justification for such warrants.
(55)
The allegation that the police officers who participated in the
searches were too many and their methods over-broad or conducted
search and seizure unlawfully has no merit.
Section
21(2) of the Act
authorises a police
official to carry out search and seizure operations.
Section
29 of the Act
provides for the search to be
conducted with strict regard to decency and order. The police
official authorised to execute the
search warrants, the second
respondent is identified in the search warrants. The unidentified
members of the Directorate of Special
Operations were merely required
to assist the identified police officer, to execute the search
warrants.
(56) Taking into
consideration that four different premises were to be searched, the
number of identified and unidentified police
officers, even though
not specifically mentioned in the search warrants to participate in
the search and seizure operation, does
not make the search warrants
over-broad or unlawful as contended by the applicants.
(57) The
contention that the search warrants as a whole were over-broad in
that there was no national connection between the wide
terms of the
search warrants and the grounds for the justification for such
warrants has no merit. A perusal of the search warrant
reflects when
the alleged offences were apparently committed or attempted. The
search warrants were prepared by the second respondent
and presented
to Judge Preller as a draft warrants. The learned Judge did not see
the necessity to limit the scope of the search
warrants or to build
in any safeguards thereto.
(58) The
parameters within which the searches were to be conducted is the
function of the learned Judge and not the second respondent
who is
seized with the execution of the search warrants. The learned Judge
as the custodian of the Constitution is in the best
position to
strike a balance between the interests of the State and the
individual.
(Investigating Directorate:
Serious Economic Offences and Others v Hyundai Motor Distributors
(Pty) Ltd (supra) para [54].)
(59) Cameron
JA in
Powell N O and Others v Van der Merwe
N O and Others
2005 (5) SA 62
(SCA),
succinctly enunciates at
para [59
]
the legal principles thus:
“
(a)
Because of the great danger of misuse in the exercise of authority
under search warrants, the courts examine their validity with
a
jealous regard for the liberty of the subject and his or her rights
to privacy and property;
(b) This applies to both
the authority under which a warrant is issued, and the ambit of its
terms:
(c) The terms of a search
warrant must be construed with reasonable strictness. Ordinarily here
is no reason it should be read otherwise
than in the terms in which
it expressed:
(d) A warrant must convey
intelligibly to both searcher and searched the ambit of the search it
authorises;
(e) If a warrant is too
general, or if its terms go beyond those authorising statute permits,
the courts will refuse to recognise
it as valid, and it will be set
aside;
(f) It is no cure for an
overbroad warrant to say that the subject of the search knew or ought
to have known what was being looked
for: the warrant must itself
specify its objects, and must do so intelligibly and narrowly within
the bounds of the empowering
statute”.
(60) The
appellant disputes the lawfulness of the search warrants on the basis
that Judge Preller did not apply his mind to the
matter when
authorising the search warrants. The applicants have not joined Judge
Preller in these proceedings. There is no cogent
persuasive
allegations detailing the alleged manner in which the learned Judge
failed to apply his mind. The learned Judge’s
integrity is
impugned without any just cause. The conduct of impugning a Judge’s
integrity without substantiation is deprecated
in the strongest terms
as it impacts on the constitutional notion of judicial independence.
(61) The learned Judge
acts in his capacity as a judicial officer carrying out a judicial
function. The learned Judge as the guardian
of the Constitution is
enjoined to ensure that the fundamental rights enshrined in the
Constitution, are protected. The learned
Judge is enjoined to
impartially, without fear or favour in considering the issuing of the
search warrants to be acutely aware
that such act could possibly
infringe constitutional rights consequently, he is enjoined to
safeguard as far as reasonably possible,
the interest of the affected
parties who are not present when the search warrants are sought. It
is the learned Judge’s prerogative
function, to safeguard any
infractions subject to limitations which are reasonable and
justifiable in an open and democratic society.
(62) There is no cogent
evidence that there learned Judge fell short of his constitutional
judicial obligation. The investigations
against first applicant and
second applicants and Mohammed Ayob are continuing. The seized
articles will possibly be used as evidence
in the first and second
applicants and Mohammed’s trial. The 300 cartons of cigarettes
are in the possession of the Customs
and Excise authorities, who are
conducting an investigation relating to them. The drug-like
substances seized are being analysed
at a Forensic Laboratory. In the
circumstances, the exhibits seized cannot be returned to the
applicants at this time, consequently,
the application for an order
to that effect, is ill-conceived and premature.
(63
) In
my view the objectives proven facts show that the application for the
search warrants was lawful and justified. The issuing
of the search
warrants by Judge Preller was predicated on information on oath which
lawfully justified him in issuing the search
warrants. Further there
is no cogent evidence that during the execution of the search and
seizure operation, the conduct of the
police was oppressive
ORDER
(64
) The
application is dismissed with costs.
Dated
at Johannesburg on the 26
th
May 2011.
________________________________
MOKGOATLHENG J
JUDGE OF THE HIGH COURT
DATE
OF HEARING: 20
TH
MAY 2010
DATE
OF JUDGMENT: 29
TH
MAY 2011
ON BEHALF OF THE
APPLICANT: MR ZEHIR OMAR
INSTRUCTED BY: ZEHIR OMAR
ATTORNEYS
C/O MARK-ANTHONY BEYL
ATTORNEYS
TELEPHONE NUMBER: (011)
333-7790
REF. NO.: M BEYL/ZEH
1-26/GZ
ON BEHALF OF THE
RESPONDENT: J H VAN DER MERWE
INSTRUCTED BY: THE STATE
ATTORNEY
TELEPHONE NUMBER: (011)
330-7600/59
REF. NO.: 0544/09/P29/kp