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[2015] ZASCA 186
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Goqwana v Minister of Safety NO & Others (20668/2014) [2015] ZASCA 186; [2016] 1 All SA 629 (SCA); 2016 (1) SACR 384 (SCA) (30 November 2015)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 20668/2014
In
the matter between:
POMPO
JOSEPH GOQWANA
APPELLANT
and
THE
MINISTER OF SAFETY AND SECURITY NO
FIRST RESPONDENT
THE
PROVINCIAL COMMISSIONER OF THE SAPS,
LIMPOPO
PROVINCE
SECOND
RESPONDENT
THE
CHAIRPERSON:
THE
LIMPOPO GAMBLING
BOARD
THIRD RESPONDENT
LIEUTENANT
SEBOLA
FOURTH RESPONDENT
THE
MAGISTRATE PHALABORWA
NO
FIFTH RESPONDENT
Neutral
citation:
Goqwana
v Minister of Safety NO & others
(20668/14)
[2015] ZASCA 186
(30 November 2015)
Coram:
Mpati
P, Petse, Willis, Swain and Zondi JJA
Heard:
13 November 2015
Delivered:
30 November 2015
Summary:
Search
warrant – should be addressed to a specifically named police
official – where search relates to a statutory offence,
as
opposed to a common law crime, the warrant should pertinently refer
to the specific statute and the section or subsection thereof
–
affidavit upon which search warrant based must accompany warrant when
executed – appeal upheld – warrant set
aside and goods
seized ordered to be returned.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Kubushi, Bam and Molopa JJ
sitting as a court of appeal):
1.
The
appeal is upheld with costs.
2.
The
order of the court a quo is set aside and replaced with the
following:
‘
(a)
The warrant issued by the fifth respondent on 3 May 2012, in respect
of the applicant’s business premises at the Skylounge
Internet
Lounge, Eden Square Mall, corner of Palm and President Nelson Mandela
Streets, Phalaborwa, is set aside.
(b)
The fourth respondent and any other respondent who is in possession
or control of the applicant’s goods and monies listed
in
annexure ‘A’ to the applicant’s notice of motion is
to be restored to the applicant’s possession forthwith.
(c)
The first to fourth respondents are jointly and severally liable to
pay the costs of the application, the one paying the other
to be
absolved.’
JUDGMENT
Willis
JA (Mpati P and Petse, Swain and Zondi JJA concurring):
[1]
The appellant conducted a business known as the Skylounge Internet
Lounge at the Eden
Square Mall in Phalaborwa. We were informed from
the bar that the correct spelling of the appellant’s surname is
‘Qongwana’
but, as the record has been prepared on the
basis that it is ‘Goqwana’, I have retained the latter in
the citation.
His business premises were searched on 4 May 2012,
consequent upon a search warrant issued by the fifth respondent (the
magistrate
of Phalaborwa), the previous day. As a result of the
search, furniture, computer equipment and cash to the value of R13
200 were
seized.
[2]
The appellant brought an urgent application on 15 May 2012 before the
Gauteng Division of the High Court, Pretoria (Van der
Byl AJ) for an
order restoring possession to him of the items seized. The root of
the application was that the search warrant itself
was not in
conformity with the requirements of the law. It was opposed on
the basis that the appellant had been lawfully
deprived of the goods
in question, in accordance with the search warrant. The high court
dismissed the application with costs.
It also dismissed the
application for leave to appeal. The petition to this court was
successful. This court directed that the
appeal be heard by the full
court in the Gauteng Division. The full court (Kubushi, Bam and
Molopa JJ) dismissed the appeal with
costs. Special leave was granted
by this court to appeal to it against the decision of the full court.
[3]
The third respondent (the Limpopo Gambling Board) had complained to
the police that the appellant appeared to have contravened
the
provisions of both the National Gambling Act 7 of 2004 (the NGA) and
the Northern Province Casino and Gaming Act 4 of 1996
[1]
(CGA) inasmuch as he had, without a license, allowed his business
premises to be used for gambling activity as provided for in
those
statutes.
[4]
The first respondent is the Minister of Safety and Security, the
second respondent the Provincial Commissioner for the South
African
Police Service in the Limpopo Province. The search and seizure at the
appellant’s business premises was conducted
by the third
respondent, Lieutenant Sebola, a police official, on 4 May 2012.
[5]
Mr Robert Lesibana Lekoto, a Law Enforcement Officer for the Limpopo
Gambling Board, deposed to the affidavit (also referred
to in the
papers as a ‘sworn statement’) in support of the
application for the search warrant. In that affidavit, Mr
Lekoto said
that he had investigated the premises of the appellant under the
guise of being a customer and discovered that the
premises had indeed
been used for the conduct of illegal gambling activities. In that
sworn statement Mr Lekoto refers to ss 28,
3 and, 82 of the NGA and
ss 51, 56 and 77
(b)
and
(e)
of the CGA. In the respondents’ answering affidavit, however,
there was also a particular complaint that the appellant, without
authorisation, had made his premises available to be used by persons
engaging in ‘interactive games’, in contravention
of the
provisions of s 11 of the NGA. No reference was, however, made
thereto in Mr Lekoto’s sworn statement upon which the
magistrate relied when he issued the search warrant.
[6]
In the body of the search warrant, it reads as follows:
‘
To
the Station Commander
Whereas
it appears to me [ie the magistrate who signed it] from information
on oath that there are reasonable grounds to believe
that, within the
magisterial district of Phalaborwa, there is an article to wit
Illegal Interactive Gambling (Online Gambling)
which:
(a)
is
concerned in the commission of an offence;
(b)
is
concerned in the suspected commission of an offence;
(c)
is
on reasonable grounds believed to be concerned in the commission of
an offence;
(d)
is
on reasonable grounds believed to be concerned in the commission of
an offence;
(e)
may
afford evidence of the commission of an offence;
(f)
may
afford evidence of the suspected commission of an offence;
(g)
is
intended to be used in the commission of an offence;
(h)
is
on reasonable grounds believed to be intended to be used in the
commission of an offence
and
which is in the possession of/under the control of/upon or at the
premises at/upon the person of Syknet Internet Lounge at Eden
Park
Square Mall cnr Palm and President Nelson Mandela Streets.
THESE
ARE THEREFORE to authorize you to search during the daytime the
identified person/ to enter and search the identified premises
and to
search any person found on or at such premises and to direct you to
seize the said computers, electronic devices, CD’s,
money, cash
register, research and books relating to gambling activities if found
and to deal with it according to law/bring it
before me to be dealt
with according to law.
Given
under my hand at Phalaborwa this 3
rd
day of May 2012.
’
After
the words ‘To the Station Commander’ in the standard form
document that was used for the issue of the search warrant,
is a sign
thus ‘†’. This sign is repeated at the bottom of
the page with the following words alongside it: ‘Name
of Police
Station’. The name of the police station was not filled in. In
addition, the allegations in paragraphs (a) to (h)
of the search
warrant were the result of choices having been made on a checklist,
in accordance with the instruction ‘Mark
with an X in the
applicable block’.
[7]
After the search warrant had been handed to the appellant at the
premises, his attorney, Mr Vasilios Vardakos, was contacted
and
arrived at the scene. He enquired whether an affidavit had been
presented to the magistrate in support of the issuing of the
warrant
and, if so, requested to have sight thereof. It was only after
repeated requests by Mr Vardakos, including a formal letter
of
demand, that a copy of the affidavit was indeed given to him, several
weeks later.
[8]
As has been pointed out, the appellant relied on the law relating to
a
mandament
van spolie
for his application for the return of the seized items on the basis
that the police had unlawfully obtained possession of his goods.
The
appellant contended that the search warrant was fatally defective
because it did not name a specific police official who was
authorised
to conduct the search in terms of the warrant, alternatively that it
was fatally defective inasmuch as it did not mention
the particular
police station to which ‘the station commander’ in
question related or was intended to apply. The appellant
also
contended that there was
no
offence known as ‘Illegal Interactive Gambling (online
gambling)’, this having been the offence which had been
specified
in the warrant. He contended further that the warrant had
not been lawfully issued because the sworn statement upon which the
magistrate
had relied when issuing the warrant had made no mention of
‘interactive games’. More particularly, the appellant
contended
that the warrant did not specify the offence and, in
particular, did not refer to s 11 of the NGA, which relates to
unauthorized
interactive gambling. The appellant complained that the
magistrate had invoked, in effect, the provisions of s 11 of the NGA
without
Mr Lekoto having done so in his sworn statement.
[9]
In summary, the appellant based his case on two main contentions: (i)
that the search warrant contained insufficient particularity
as to
whom it was addressed and (ii) that
ex
facie
the document, it did not specify the offence in connection with which
the search was to be conducted and therefore could not be
‘reasonably
intelligible’ either to the searcher or person searched.
Accordingly, so the argument went, the search
warrant had been
unlawfully issued and the seizure of the appellant’s goods
consequent thereupon was, correspondingly, also
unlawful.
[10]
The first to fourth respondents, on the other hand, contended that
the issuing of the warrant addressed simply to ‘the
Station
Commander’ was sufficient, particularly in the context of there
being only one police station in the relatively small
town of
Phalaborwa. They also contended that the warrant was reasonably
intelligible, had satisfied the requirements of the law
and,
accordingly, that the dispossession of the goods had been lawful.
[11]
Sitting as the court of first instance, Van der Byl AJ heard the
urgent application. He observed that the search warrant was
‘not
a model of accuracy’ but found that:
‘
The
Station Commander, although not addressed by name, is a specific
police official and one responsible for the performance of
public
functions by police officials under his or her command and I can see
no reason why the fact that he was not referred to
by name or that
any other person designated by name to execute the warrant or that
any such failure can detract from the aims and
objectives of
section
21
of the
Criminal Procedure Act, 1977
.’
He
also found:
‘
In
my view the affidavit contains more than sufficient particularity to
establish a reasonable suspicion that offences of the contravention
of the
National Gambling Act 7 of 2004
and the Limpopo Gambling Act 4
of 1996 were being committed by the person or persons conducting
business on the premises that was
at that stage known as Skynet
Internet Lounge which call for the search and seizure of all articles
relevant to any such offences
.’
Having
considered the requirements set out by the Constitutional Court in
Mistry
v Interim Medical and Dental Council of South Africa & others
[2]
and
Magajane
v Chairperson, North West Gambling Board
,
[3]
relating to the justification for intrusions into a person’s
privacy that a search warrant necessarily entails, the judge
concluded:
‘
In
these circumstances I find it difficult to see that the actions of
the Respondents effected any injustice to the Applicant and
that the
aims and objectives of the relevant provisions [ie
s 20
of the
Criminal Procedure Act, read
against the background of these
decisions by the Constitutional Court] were not achieved
.’
[12]
The full court placed large reliance on the Constitutional Court’s
decision in
Minister
of Safety and Security v Van der Merwe & others
,
[4]
which, in turn, drew heavily upon
Thint
Holdings (Southern Africa) (Pty) Ltd v National Director of Public
Prosecutions; Zuma v National Director of Public Prosecutions
[5]
– also a decision of the Constitutional Court. The full court
found that it could be inferred, quite obviously, that the
search
warrant was intended to be addressed to the station commander at the
Phalaborwa police station and that this was a sufficiently
adequate
description of the police official to whom it was addressed. It also
found that the search warrant contained a reasonably
accurate
description of the suspected offence and that it was, objectively,
‘reasonably capable of being understood by a
reasonably
well-informed person, who appreciated the legislation and the nature
of the offences involved.’ The full court
then, immediately
before dismissing the appeal with costs, unanimously concluded:
‘
[C]onsidered
at the time of its issue, the terms of the warrant were sufficient to
satisfy the objective test of reasonable intelligibility
.’
[13]
This case raises questions of fundamental constitutional importance.
Provided there is no abuse of process, the issuing
of search
warrants and the seizure of articles consequent thereupon is a vital,
indeed necessary, element in the effective combatting
of crime. On
the other hand, all people within the Republic of South Africa have
constitutionally enshrined rights to dignity,
privacy, freedom,
security, trade and property.
[6]
Earnest though the support of the courts for the SAPS in their
endeavours to combat crime must be, these constitutional rights
have
especial significance. More particularly in view of our
history, that significance is cardinal in magnitude.
[14]
Iridescent in
Investigating
Directorate: Serious Economic Offences & others v Hyundai Motor
Distributors (Pty) Ltd & others: In re Hyundai
Motor Distributors
(Pty) Ltd & others & others v Smit NO & others
,
[7]
Thint
and
Van
der Merwe
is
the requirement that the courts must strike a wholesome balance
between, on the one hand, the dignity and privacy of every citizen
and, on the other, support for the State in combatting crime.
[8]
[15]
A brief outline of the basic principles relevant to search warrants
is accordingly apposite.
Minister
of Justice & others v Desai NO
[9]
makes it clear that it has long been recognised in our law that a
search warrant ‘constitutes a serious encroachment on the
rights of the individual’ and that careful scrutiny by the
courts is required.
[10]
[16]
In
Minister
of Safety and Security v Van der Merwe & others
[11]
Mogoeng J, delivering the unanimous judgment of the court, said in
paras 55 and 56:
‘
What
emerges from this analysis is that a valid warrant is one that, in a
reasonably intelligible manner:
(a)
states the statutory provision in terms of which it is issued;
(b)
identifies the searcher;
(c)
clearly mentions the authority it confers upon the searcher;
(d)
identifies the person, container or premises to be searched;
(e)
describes the article to be searched for and seized, with sufficient
particularity; and
(f)
specifies the offence which triggered the criminal investigation and
names the suspected offender.
In
addition, the guidelines to be observed by a court considering the
validity of the warrants include the following:
(a)
the person issuing the warrant must have authority and jurisdiction;
(b)
the person authorising the warrant must satisfy herself that the
affidavit contains sufficient information on the existence
of the
jurisdictional facts;
(c)
the terms of the warrant must be neither vague nor overbroad;
(d)
a warrant must be reasonably intelligible to both the searcher and
the searched person;
(e)
the court must always consider the validity of the warrants with a
jealous regard for the searched person’s constitutional
rights;
and
(f)
the terms of the warrant must be construed with reasonable
strictness.’ (Footnotes omitted.)
[17]
In the appeal before us, both the appellant and the first to fourth
respondents relied on
Van
der Merwe
.
The appellant contended that the search warrant was not ‘reasonably
intelligible to the searched person’ and that
it was
‘overbroad’.
[12]
The respondents protested that, on the contrary, the search warrant
was reasonably intelligible to a person in the position of
the
appellant (ie a person operating an internet café) and that it
was not overbroad.
[18]
In
Pullen
NO, Bartman NO and Orr NO v Waja
,
[13]
which the Constitutional Court affirmed in
Van
der Merwe,
it
was said:
‘
I
t
is desirable that the person whose premises are being invaded should
know the reason why; the arguments in favour of the desirability
of
such a practice are obvious
.’
[14]
[19]
In
Powell
NO & others v Van der Merwe No & others
[15]
this court said that search warrants would be scrutinised with
‘sometimes technical rigour and exactitude’.
[16]
As Cameron JA observed in
Powell
,
‘a general ransacking’ by the police carrying out a
search has, ever since at least 1891, not been allowed. In
Ex
parte Hull
,
[17]
the protection of confidential documents from the intrusions of
privacy inherent in a search was an especial consideration. In
Ex
parte
Hull
,
Kotze CJ said:
‘
The
secrets of private friendship, relationship, trade and politics,
communicated under the seal of privacy and confidence would
become
public, and the greatest trouble, unpleasantness and injury caused to
private persons, without furthering the true purposes
of criminal
justice in the slightest degree.
’
[18]
[20]
Insofar as the failure of the warrant to refer to a specific police
officer is concerned, the provisions of
s 25(1)
of the CPA are
relevant. This section provides that:
‘
25
Power of police to enter premises in connection with State security
or any offence
(1)
If it appears to a magistrate or justice from information on oath
that there are reasonable grounds for believing-
(a)
that
the internal security of the Republic or the maintenance of law and
order is likely to be endangered by or in consequence of
any meeting
which is being held or is to be held in or upon any premises within
his area of jurisdiction; or
(b)
that
an offence has been or is being or is likely to be committed or that
preparations or arrangements for the commission of any
offence are
being or are likely to be made in or upon any premises within his
area of jurisdiction, he may issue a warrant authorizing
a
police official
to enter the premises in question at any reasonable time for the
purpose-
(i)
of carrying out such investigations and of taking such steps as such
police official may consider necessary for the preservation
of the
internal security of the Republic or for the maintenance of law and
order or for the prevention of any offence;
(ii)
of searching the premises or any person in or upon the premises for
any article referred to in
section 20
which
such police official
on reasonable grounds suspects to be in or upon or at the premises or
upon such person; and
(iii)
of seizing any such article.’
(Emphasis
added.)
The
repeated correlation between ‘a’ and ‘such’,
when reference is made to a ‘police official’
in these
subsections, is indicative of a singular degree of specificity. The
references to ‘a police official’ and
‘such police
official’ in these subsections are not reasonably capable of
being interpreted in any other manner.
[21]
This approach was correctly followed in
Naidoo
& another v Minister of Law and Order & another,
[19]
Smit
&
Maritz
Attorneys & another v Lourens NO & others
,
[20]
and
S
v Ntsoko
.
[21]
In
Naidoo
it was said that where s 25(1) of the Criminal Procedure Act 51 of
1977 (the CPA) refers to a ‘police official’ that
indicated ‘that the Legislature intended that an
identified
police officer
should be
named
and should act throughout’.
[22]
(Emphasis added.) In
Smit
&
Maritz
v Lourens
,
Van Oosten J followed
Naidoo
and
required that a ‘
known
and named
police
official’ should be authorized in terms of a search
warrant.
[23]
(The emphasis appears in the original text.) In
Naidoo
,
Roux J relied on the provisions of s 29 of the CPA, which require a
‘strict regard to decency and order’ in the search
of any
person or premises in coming to this conclusion.
[24]
[22]
Section 29 of the CPA, upon which Roux J relied in
Naidoo
,
provides as follows:
‘
A
search of any person or premises shall be conducted with a strict
regard to decency and order, and a woman shall be searched by
a woman
only, and if no female police official is available, the search shall
be made by any woman designated for the purpose by
a police
official
’
.
In
my respectful opinion, Roux J was incorrect to rely on the provisions
of this section in drawing his conclusion. A plain reading
of ss
21(2) and 25(1) of the CPA makes it clear, however, that he was
correct in determining that an identified police officer
should be
named and should act throughout.
[23]
In
Ntsoko
, Mabuse J observed, among other criticisms of
various search warrants, that:
‘
All
the said warrants are addressed to “the Station Commander”.
They have not been addressed to a specifically named
officer nor have
they been addressed to a particular police station. This is contrary
to the provisions of Section 21(2) of the
[Criminal Procedure Act]
.
. .’
[25]
The
judge found, for a number of reasons, that the terms of the search
warrants were overbroad, did not satisfy the test in
Powell
and set them aside.
[26]
The full court hearing the present matter disagreed with the
criticism in
Ntsoko
of the warrant being addressed simply to ‘the Station
Commander’.
[24]
In
Silwana
& another v Magistrate, District of Piketberg & another
[27]
however, Foxcroft J, with whom Dlodlo AJ concurred, noted
en
passant
,
when referring to criticisms that a search warrant had not referred
to a specifically named police officer or to the officer
commanding
of a particular police station, that ‘[i]t would be a matter of
no difficulty for anyone to ascertain who the
station commander was
on the date when the warrant was signed’ and that it ‘makes
more sense to specify a station commander
than a named person who
might not be available at the very moment when a search warrant
needed to be carried out’.
[28]
This judgment arose within the context of the application for the
recusal of a magistrate in a trial, where he had earlier issued
the
search warrant. In regard to the naming of the police official, the
approach adopted in
Silwana
does not, however, accord with either a literal or purposive approach
to the interpretation of s 25(1) of the CPA.
[25]
In the context of a purposive interpretation of s 25(1) of the CPA,
Mr Mtsweni, counsel for the first to fourth respondents,
conceded
that, in practice, it will be rare indeed that the station commander
conducts a search in terms of s 25 of the CPA. Normally,
it will be
the investigating officer. The interpretation that the police
official should be named in the search warrant acts as
a safeguard
against abuse so that when the warrant is executed’, a person
at the premises to be searched can ask not only
for the police
official to produce his or her police identity card but also to
demonstrate the reference to him or herself in the
warrant itself.
This interpretation also reinforces the principle of accountability,
more especially as it will ordinarily be the
investigating officer
who applies to the magistrate for a search warrant, leading to the
search itself. Of course, the circumstances
will very often require
that the investigating officer be assisted by other police officials.
It remains salutary, however, that
at least one police official
responsible for the search should pertinently be identified in the
actual search warrant.
[26]
As for the requirements that a search warrant should specify the
offence in connection with which the search is to be conducted
and
should be ‘reasonably intelligible’, the provisions of
the NGA and CGA should further be read together with the
provisions
of ss 20, 21 and 25, of the CPA.
[27]
Section 20 provides as follows:
‘
20
State may seize certain articles
The
State may, in accordance with the provisions of this Chapter, seize
anything (in this Chapter referred to as an article)-
(a)
which
is concerned in or is on reasonable grounds believed to be concerned
in
the commission or suspected commission of an offence, whether within
the
Republic or elsewhere;
(b)
which
may afford evidence of the commission or suspected commission of
an
offence, whether within the Republic or elsewhere; or
(c)
which
is intended to be used or is on reasonable grounds believed to be
intended
to be used in the commission of an offence.’
[28]
Section 21 of the CPA provides:
‘
21
Article to be seized under search warrant
(1)
Subject to the provisions of sections 22, 24 and 25,
an article
referred to in section 20
shall be seized only by virtue of a
search warrant issued–
(a)
by
a magistrate or justice, if it appears to such magistrate or justice
from information on oath that there are reasonable grounds
for
believing that any
such
article
is in the possession or under the control of or upon any person or
upon or at any premises within his area of jurisdiction; or
(b)
by
a judge or judicial officer presiding at criminal proceedings, if it
appears to such judge or judicial officer that any such
article in
the possession or under the control of any person or upon or at any
premises is required in evidence at such proceedings.
(2)
A search warrant issued under subsection (1) shall require
a
police official
to seize the article in question and shall to that end authorize
such
police official
to search any person identified in the warrant, or to enter and
search any premises identified in the warrant and to search any
person found on or at such premises.’
(Emphasis
added.)
The
repeated correlation, once again, between ‘a’ (or ‘an’)
and ‘such’, when reference is made
in these subsections
either to the ‘article’ to be seized or a ‘police
official’ who is to do the seizing,
is indicative that a high
degree of specificity is required.
[29]
It is clear that any unlicensed interactive games that might have
taken place at the premises would have been in contravention
of s 11
of the NGA, which provides as follows:
‘
11
Unauthorised interactive gaming unlawful
A
person must not engage in or make available an interactive game
except as authorized in terms of this Act or any other national
law…
’
Nevertheless,
in his sworn statement in support of the search warrant, Mr Lekoto
did not refer to this section at all. Furthermore,
there is no
statutory offence known as ‘illegal interactive gambling
(online gambling)’ – this being the ‘offence’
described in the search warrant. This underscores the importance of
it ordinarily being desirable that when dealing with a statutory
offence, as opposed to a common law crime, the warrant should
pertinently refer to the specific statute and the section or
subsection
thereof in order to enable the person in charge of the
premises to be searched (assisted, if needs be, by his or her lawyer)
and
also the police official authorised in terms of the search
warrant to know precisely that for which the search has been
authorised.
The need for particularity in a warrant, especially where
one is dealing with statutory offences, is salutary. This should
present
no difficulty in practice because search warrants are issued
by magistrates who are trained and experienced in law. It hardly
needs
be said that gambling, whether ‘online’ or
‘interactive’ (whatever that may mean precisely), is not
a common
law crime.
[30]
A search warrant is not some kind of mere ‘interdepartmental
correspondence’ or ‘note’. It is, as its
very name
suggests, a substantive weapon in the armoury of the State. It
embodies awesome powers as well as formidable consequences.
It must
be issued with care, after careful scrutiny by a magistrate or
justice, and not reflexively upon a mere ‘checklist
approach’.
[31]
What of the affidavit upon which the magistrate relies in terms of s
25 of the CPA? In the body of the search warrant, it does
indeed
refer specifically that it appears to the magistrate ‘from
information on oath that there are reasonable grounds to
believe that
…’. It therefore refers directly to the affidavit or
sworn statement of Mr Lekoto. Section 21(4) of the
CPA requires that,
after execution, the police official who has executed the warrant
shall ‘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.’
In
Polonyfis
v Minister of Police
[29]
Cachalia JA, delivering the unanimous judgment of this court, said:
‘
After
the search a copy of the warrant and any document referred to in it
must – on demand – be handed to the person
in charge [of
the premises] who may then decide whether or not to challenge the
validity of the warrant, either because it was
unlawfully issued or
unlawfully executed
.’
[30]
It
is accordingly imperative that the affidavit or sworn statement in
support of the warrant should accompany the warrant and be
handed
over together with it. This would, additionally, facilitate the
expedition of any court application in which a person may
wish to
contend that his or her rights were adversely affected by the search.
This injunction accords with the constitutionally
enshrined
right of every person to have access to information ‘that is
held by another person and that is required for the
exercise or
protection of any rights’.
[31]
This right is embodied in the
Promotion of Access to Information Act
2 of 2000
.
[32]
It is regrettable that the appellant had to wait several weeks before
he was able to receive a copy of Mr Lekoto’s sworn
statement
from the police.
[32]
I am mindful of the recent decision of the Constitutional Court in
Ngqukumba
v Minister of Safety and Security & others
[33]
in which a helpful analysis was given of the circumstances in which
the
mandament
van spolie
would be available.
[34]
We are also mindful of the fact that in
Polonyfis
,
after having referred to
Pretoria
Portland Cement Co Ltd & another v Competition Commission &
others
,
[35]
this court indicated that, in the absence of an ‘abuse of
power’ or a ‘gross violation’ of the rights of
a
person to be searched, it would be slow to find that a search warrant
is unlawful on purely technical grounds.
[36]
In all the circumstances of the matter, however, the appellant has
rightly claimed the setting aside of the search warrant and
the
return of the articles seized.
[33]
The standard forms or ‘template’ used for the issue of
search warrants will have to be revised in the light of
this
judgment. Nevertheless, as Mogoeng J said in
Van
Der Merwe
,
the retrospective invalidation in respect of all past warrants issued
in a manner that is defective as a consequence of this judgment
does
not ensue.
[37]
This, as he observed, might give rise to undesirable
consequences.
[38]
The courts must adjudicate each individual case on its own merits and
all warrants hitherto issued contrary to the guidelines herein
contained, remain valid unless set aside on a case by case basis.
[39]
[39]
The following order is made:
1
The
appeal is upheld with costs.
2
The
order of the court a quo is set aside and replaced with the
following:
‘
(a)
The warrant issued by the fifth respondent on 3 May 2012, in respect
of the applicant’s business premises at the Skylounge Internet
Lounge, Eden Square Mall, corner of Palm and President Nelson
Mandela
Streets, Phalaborwa, is set aside.
(b)
The fourth respondent and any other respondent who is in possession
or control of the applicant’s goods and moneys listed
in
annexure ‘A’ to the applicant’s notice of motion is
to be restored to the applicant’s possession forthwith.
(c)
The first to fourth respondents are jointly and severally liable to
pay the costs of the application, the one paying the other
to be
absolved.’
______________________
N
P Willis
Judge
of Appeal
APPEARANCES:
For
the Appellant:
N Jagga
Instructed by:
Vardakos Attorneys, Vereeniging
Honey Attorneys, Bloemfontein
For
the First to Fourth
Respondents:
D Mtsweni
Instructed by:
State Attorney, Pretoria
State Attorney, Bloemfontein
[1]
This
Act has since been replaced by the Limpopo Gambling Act 3 of 2013,
promulgated in the
Provincial
Gazette
on 22 August 2014, and came into effect on 1 September 2014.
[2]
Mistry v Interim Medical and
Dental Council of South Africa & others
1998
(4) SA 1127
(CC), especially paras 21, 23 and 27 to 30.
[3]
Magajane v Chairperson, North West
Gambling Board
[2006] ZACC 8
;
2006 (2)
SACR 447
(CC), especially paras 33 to
96.
[4]
Minister of Safety and Security v
Van der Merwe & others
2011
(5) 61 (CC).
[5]
Thint Holdings (Southern Africa)
(Pty) Ltd v National Director of Public Prosecutions; Zuma v
National Director of Public Prosecutions
[2008] ZACC 14
;
2009
(1) SA 141
(CC)
.
[6]
See ss 1,
12, 14, 22 and 24 of the Constitution of the Republic of South
Africa, 1996. See also, in general terms,
Mistry
v Interim Medical and Dental Council of South Africa & others
1998 (4) SA 1127
(CC)
;
Investigating Directorate: Serious
Economic Offences & others v Hyundai Motor Distributors (Pty)
Ltd & others: In re Hyundai
Motor Distributors (Pty) Ltd &
others & others v Smit NO & others
[2000] ZACC 12
;
2001
(1) SA 545
(CC)
;
Thint
(fn
5 above
)
and
Van
der Merwe
(fn
4 above).
[7]
Hyundai
(
fn
6 above).
[8]
Hyundai
(
fn 6
above) para 54,
Thint
(
fn
5
above) paras 74 to
79;
Van der Merwe
(
fn
4
above) paras 21, 35
and 36.
[9]
Minister of Justice & others v
Desai NO
1948 (3) SA 395
(A).
[10]
Desai
(
fn 9
above)
at
403. See also
Ex
parte Hull
(1891-1892) 4 SAR TS 134 and
Hertzfelder
v Attorney-General
1907 TS 403.
[11]
Van der Merwe
(fn
4 above).
[12]
This was a term
adopted by Cameron JA in
Powell
NO & others v Van der Merwe & others
2005
(5) SA 62
(SCA) paras 4, 18, 21, 28, 48 and 59.
[13]
Pullen NO, Bartman NO
&
Orr NO v Waja
1929
TPD 838.
[14]
At 849. See also
Van
der Merwe
(fn 4 above) para 54.
[15]
Powell NO & others v Van der
Merwe
NO
& others
2005 (5) SA 62 (SCA).
[16]
Paragraph 50.
[17]
Ex parte Hull
(fn 10 above).
[18]
At 141.
[19]
Naidoo & another v Minister of
Law and Order & another
1990 (2) SA 158 (W).
[20]
Smit
&
Maritz Attorneys v Lourens NO &
others
2002 (1) SACR 152
(W).
[21]
S v Ntsoko
2011
JDR 0655 (GNP).
[22]
At 161D.
[23]
At 157d.
[24]
At 161D.
[25]
Paragraph 21.
[26]
Paragraph 29.
[27]
Silwana & another v
Magistrate, District of Piketberg & another
2003
(5) SA 597 (C).
[28]
At 601C-E.
[29]
Polonyfis v Minister of Police
2012 (1) SACR 57
(SCA).
[30]
Para 19.
[31]
See s 32(1) of the
Constitution of the Republic of South Africa, 1996.
[32]
See s 9 thereof as
well as s 32(2) of the Constitution, which requires that national
legislation be enacted to give effect to
this right.
[33]
Ngqukumba v Minister of Safety and
Security & others
2014
(5) SA 112 (CC).
[34]
Paragraphs 10 to
21. See also
Judelman
v Colonial Government
(1909)
3 BAC 446
at 453;
Sillo
v Naude
1929
AD 21
at 26;
Mans
v Marais
1932 CPD 352
at 353-354;
Moleta
v Fourie
1975
(3) SA 999
(O) at 1001–2;
Surtee's
Silk Store (Pty) Ltd v Community Development Board
1977
(4) SA 269
(W) at 270A–H;
Potgieter
v Du Plessis
1978
(1) SA 751
(NC) at 754H.
[35]
Pretoria Portland Cement Co Ltd &
another v Competition Commission & others
2003
(2) SA 385
(SCA) paras 71 and 73.
[36]
Paragraph 23.
[37]
Paragraphs 58 to
60.
[38]
Paragraph 60.
[39]
See also
Van
der Merwe
(fn 4 above) paras 60 and 61.