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[2022] ZAGPJHC 171
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LTE Consulting (Pty) Ltd and Another v The Minister of Police and Others (42827/2020) [2022] ZAGPJHC 171 (24 March 2022)

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HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION,
JOHANNESBURG)
Case no: 42827/2020
REPORTABLE: No
OF INTEREST TO OTHER
JUDGES: No
REVISED.
24 March 2022
In the matter between:
LTE
CONSULTING (PTY)
LTD
First Applicant
MAJOLA
MAKHOSI
THULANI
Second Applicant
and
THE
MINISTER OF POLICE
First Respondent
DIRECTORATE
FOR PRIORITY CRIMES INVESTIGATION
Second Respondent
SIMELANE
MZIZIKAZI
FLORENCE
Third Respondent
Case
Summary
: APPLICATION - SEARCH
AND SEIZURE WARRANTS - BE DECLARED INVALID AND SET ASIDE
JUDGMENT
SENYATSI J
A.
INTRODUCTION
[1]
Applicants before this court seek an order that the search and
seizure warrants attached
to the application, four in number and all
dated 30 October 2020 be declared invalid and set aside.
[2]
The search and seizure warrants were issued by Mabesele J of this
court. The application
is opposed.
B.
BACKGROUND
[3]
First Applicant is LTE Consulting (Pty) Ltd, a private company with
its registered
office at 5 Elgin Road, Belvedere Place, Building 1,
Sunninghill, Johannesburg.
[4]
Second Applicant is Makhosi Thulani Majola an adult businessman, and
a director of
First Applicant.
[5]
First Respondent is the Minister of Police, care of the State
Attorney 10
th
Floor North State Building, 95 Market
Street, Johannesburg, who is the political head of the South African
Police Services.
[6]
Second Respondent is Directorate for Priority Crime Investigation
with its head office
at 141 Crosswell Road, Lindopark, Silverton,
Pretoria.
[7]
Third Respondent is Mzizikazi Florence Simelane, an adult female
Lieutenant-Colonel,
a member of the South African Police Services
stationed at Rentmeester Building No 74, Watermeyer Street, Pretoria.
[8]
The four warrants which are sought to be impugned were,as stated,
obtained on 30 October
2020 and the searches and seizures were
effected thereafter.
[9]
Applicants contend that Honourable Justice Mabesele who issued the
warrants did not
have jurisdiction and / or authority to issue them
because he was not in an open court when he issued same, regards
being had to
section 21(1)(b) of the Criminal Procedure Act No: 51 of
1977 (“the Act”).
[10]
Respondents deny that the warrants for search and seizure are invalid
and stand to be set aside
on the basis that criminal proceedings had
not commenced against Applicants.
[11]
Respondents contend that it was not necessary to sit in criminal
proceedings to have the authority
to issue the warrants of search and
seizure. Respondents also contend that the court consisting of a
single sitting judge does
not have jurisdiction to review and set
aside the warrants of search and seizure issued on 30 October 2020 by
another judge. They
argue that the prayers sought in the proceedings
are incompetent in law.
[12]
Respondents argue that when the warrants were executed, police did
not provide Applicants with
the copy of the affidavit that led to the
issuing thereof. However, following the demand letter issued by
Applicants’’
legal representatives the affidavit and a
list of police officers who executed the warrants were provided on 14
November 2020 a
day after receipt of the demand letter. Consequently,
so continues the argument by Respondents, the application has become
moot.
C.
ISSUES
[13]
The issues for determination is whether or not this court is
competent to intervene given that
the documents demanded were
provided and furthermore whether or not the court is competent to
make a determination on the validity
or lack thereof of the warrants
for the arguments raised by Respondents.
D.
THE LEGAL PRINCIPLES
[14]
The bone of contention by Applicants is that the warrants did not
comply with the provisions
of the
Criminal Procedure Act 51 of 1977
,
in the particular
section 21
(“the CPA”).
[15]
Section 21
of the CPA provides as follows:
“
21
Article to be seized under warrant
(1)
Subject to the provisions of
sections 22
,
24
and
25
an article referred to in
section 20
shall be
seized only be virtue of a search warrant issued-
(a)
by a magistrate or justice, if it
appears to such magistrate or justice form information on oath that
there are reasonable grounds
for believing that any such article 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
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.
(3)(a)   A
search warrant shall be executed by day, unless the person issuing
the warrant in writing authorizes the execution
thereof by night.
(b)
A search warrant may be issued on any day and shall be of force until
it is executed or
is cancelled by the person who issued it or, if
such person is not available, by a person with like authority.
(4)
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 him a copy of the warrant.”
It is clear that the
legislature intended to have a formal procedure followed in respect
of the issue.
[16]
In
Malherbe
v State
[1]
the court held that magistrate and justices (police officers) are
empowered and have the authority to issue search warrants before

criminal proceedings are instituted on the basis of information on
oath.
[17]
In
Thint
(Pty) Ltd v National Director of Public Prosecutions and others, Zuma
and another v National Director of Public Prosecutions
and others
[2]
the
Constitutional Court held that certain jurisdictional factors also
need to be met first, that there is a reasonable suspicion
that an
offence, which might be a specified offence in terms of the CPA, has
committed and secondly, that there are reasonable
grounds to believe
that an item that
has
a bearing or might have a bearing on the investigation is on or is
suspected to be on the premises to be searched. Finally,
the judicial
officer must consider whether it is appropriate to issue a search
warrant.
[18]
Section 21
of the CPA refers to a ‘justice’.
Section 1
of
the CPA defines a justice as a person who is a justice of the peace
under the provisions of the Justices of the peace and Commissioners

of Oaths Act No 16 of 1963. In terms of the Justices of Peace and
Commissioners of Oaths Act, a justice of peace is appointed by
the
Minister of Justice or any officer of the Department of Justice with
the rank of director, or an equivalent or higher rank,
delegated
thereto in writing by the Minister, and is empowered to carry out
such instructions for the preservation of the peace
good order in
such magisterial district as he may receive from the magistrate of
that magisterial district, and render all assistance
possible in
suppressing disorder or in such magisterial district.
[19]
A Judge and judicial officers may issue a search warrant once the
criminal proceedings are pending
before them. This is clearly what
section 21(1)(b) of the CPA provides. However, this section does not
limit the power of a judge
to issue the warrant. A judge means a
judge sitting otherwise than in court which means that warrants issue
in chambers are quite
valid. More reasons will follow later in this
judgment on this point.
[20]
The reason for the distinction between magistrates and judges on the
authority to issue a search
warrant is that our law does not allow
the decision of one judge to be subject to the review of another
judge.
[3]
This is so when a
judge is sitting in court but not in chambers as in this case in
which case this court does have jurisdiction
to adjudicate the
matter.
[21]
In
Minister
for Safety and Security v Van Der Merwe
[4]
the
Constitutional Court held that the terms of a search warrant should
not be too general and must be defined with adequate particularity
to
ensure that only particularity to ensure that only articles which
have a bearing on the offence under investigation are seized.
[22]
The terms of a warrant should not be too general.
[5]
To
achieve this, the scope of the search must be defined with adequate
particularity to avoid vagueness or over breath. The search
and
seizure must be confined to those premises and articles which have a
bearing on the offence under investigation.
[23]
The content of the search warrant in this case stated as follows:-
“
WHEREAS
it appears to me from information on oath provided by a police
official involved in an investigation into the commission
or
otherwise suspected commission of offence(s) listed below, that there
are reasonable grounds for
reasonably believing that
-
1.
Contravention of section 86(3) of
the Public Finance Management Act, 1999 (Act No. 1 of 1999);
2.
Fraud, and
3.
Corruption
B.
the
articles
capable of
seizure which may afford evidence in the commission or suspected
commission of the said offence(s) are listed (as attached
hereto);
and
C.
such articles-
(i)
are upon or at the following premises with any area of jurisdiction,
namely
64 Mount Street, Bryanston, Sandton (such being hereinafter
referred to as, “the premises and/or
(ii)
otherwise are under the contract of or upon the following person(s)
who currently
reside within my area of jurisdiction:
Thulani Makhosi Majola
Director of LTE Consulting ID: [....] [such being hereinafter
referred to as “the identified person(s)]
THEREFORE
THERE IS A NEED
to search
for and seize said article(s) upon or at the premises under the
control of or upon the identified person(s).
YOU
ARE HERBY AUTHORISED AND REQUIRED
within
the context of performance of all relevant duties to-
·
Enter the premises and approach the
identified person(s) during the day/night time and search the
identified person(s) / premises
and any person found upon or such
premises, for the articles (listed as attached hereto) and to seize
any such articles that are
found and exercise any further powers and
perform any further duties in relation to such seized articles as set
out in Chapter
2 of the CPA, and
·
Search for and trough any data and data
messages and the examination thereof, on any information system that
is found (as three
terms are defined in the
Electronic Communications
and Transactions Act, No 25 of 2002
), such may be done during the
conducting of the search via the making and employment of
mirror-image copy(s) of the data and data
messages stored on the
information system.
Any person whose
rights in respect of any search or article seized under this warrant
have been affected is entitled to a copy of
this warrant, together
with a copy of the supporting affidavit of Lt. Colonel M.F. Simelane.
The police official in
charges of this search and seizure will during the search and seizure
be assisted by the following police
officials as indicated in
annexure “B” attached given under my hand at Johannesburg
on this 30
th
day of October 2020.
Signed by the judge
who issued the search and seizure warrant.”
[24]
The warrant provides two additional police officers to assist colonel
Simelane and both police
officers are colonel in the SAPS.
[25]
The second search and seizure warrant is worded similarly but relates
to the offices of LTE Consulting
situated at Building 1 Elgin Street,
LTE Capital Finance, Sunninghill, Gauteng, 2191.
[26]
The third search and seizure warrant is also worded similarly and
relates to premises at 12 Trafalgar
Street Midstream Estate,
Olifantsfontein.
[27]
The fourth search and seizure warrant is worded the same as the
others and relates to the premises
at 129 Pitzer Road, Glen Austin
AH, Midrand.
[28]
Following the four search and seizure warrants, Second Applicant’s
personal iPhone was
seized. HP Laptop; Toshiba 8G USB; 18 memory
sticks; files; stapled documents; 1 x tax invoice Limonite Trading
(Pty) Ltd; 1 x
Nedbank proof of payment; LTE Consulting proof of
payment for R1 830 000; 1x Nedbank proof of payment dated
16/4/2020
for R399 000; 1 x Nedbank proof of payment for LTE
Consulting / Arehaf Arman Logistics R540 000; 1 x Nedbank proof
of
payment dated 16/4/2020 LTE Consulting Rahjahal Import –
R460 000; and many other documents and memory sticks were seized

from various premises.
[29]
If one has regard to views seized and what the search and seizure
warrants stated if, is clear
in my respectful view that the search
and seizure warrants were not vague in that they made specific
reference to what offences
were being investigated. The police were
in my view on an expedition to look for anything they could find to
gather evidence relating
to the suspected offences under
investigation. I say this because warrants of search and seizure will
not be able to itemize in
advance what specific things would be
searched in relation to the offences under investigation.
[30]
In opposing the application and as a point in limine, it was
submitted on behalf of Respondent
that this court does not have
jurisdiction to review and set aside the warrants of search and
seizure issued on 30 October 2020
by Mabesele J. This point was,
however not raised in the papers. I was referred to the case
Cusa
v Tao Ying Metal Industries
[6]
where
the court held as follows:
“
Where
a point of law is apparent on the papers, but the common approach of
the parties proceeds on a wrong perception of what the
law is, a
court of appeal is not only entitled, but is in fact also obliged,
mero muto, to raise the point of law and require the
parties to deal
therewith. Otherwise the result would be a decision premised on an
incorrect application of the law. That would
infringe the principle
of legality.”
[31]
This court was furthermore referred to the principle that
jurisdiction is the power or competence
which a particular court has
to hear and determine an issue between the parties brought before
it.
[7]
[32]
Counsel for Respondents also referred me to the provisions of
section
14(1)
of the
Superior Courts Act 10 of 2013
which states that save as
provided for in this Act or any other law, a Court of a Division must
be court stated before a single
judge when sitting as a court of
first instance for the hearing of any civil matter, the Judge
President or in his / her absence,
the Deputy President or the senior
available judge, may at any time direct that any matter be heard by a
court consisting of not
more than three judges as he or she may
determine. This proposition is the correct summary of other law when
dealing with appeals
or review of a single Judge sitting as a court.
It cannot apply in circumstances where a judge is sitting otherwise
than in court
as was the case in this matter.
[33]
Counsel for Respondents submitted that warrants of search and seizure
issued by a judge not sitting
or presiding in proceedings has been a
feature of ours and that in the issue of warrants of search and
seizure by Judges has been
a feature of our law. I am in agreement
with the proposition expressed by counsel on behalf of Respondents on
this point because
as a matter of practice judges issue warrants of
search and seizure regularly in chambers before charges are preferred
against
the suspects
[34]
As regards the contention that this court does not have jurisdiction
to preside over the matter
this contention cannot, in my respectful
vie, be sustained. I say so because the principles as well as the
provisions of
section 14(1)
of the
Superior Courts Act, related
to
instances where a judge sat as a court to deal with the issue before
him or her.
[35]
In the instant case, Mabesele J correctly in my view, issued the
warrant, not as court, but as
a judicial officer, in chambers. The
proposition that the intention of the legislature in such an instance
is to deprive judges
of this court the inherent jurisdiction to make
a determination on the lawfulness or lack thereof by this court, is
therefore without
legal basis and must fail and accordingly the court
has jurisdiction to make a determination of this application.
[36]
I now deal with whether the warrant as it stands is in gross
violation of the rights of the Applicants
and whether it amount to
abuse of power.
[37]
In dealing with the issue, the court in
Pretoria
Portland Cement Co Ltd and Another v Competition Commission and
Others
[8]
held
that in the absence of an abuse of power or a gross violation of the
rights of a person to be searched, a court should be slow
to find
that a search warrant is unlawful on purely technical grounds.
[9]
The
court must adjudicate each case on its own merits before making a
determination on the lawfulness or lack thereof of a warrant.
[10]
[38]
In the instant case, the demand was made on the 13 November 2020
about the affidavit accompanying
the warrants of search and seizure
and was complied within a day later. This is, in my view, not
unreasonable. Over and above that,
at the time the search warrants
were executed, the demand was not made for the copy of the affidavit
in support of the warrant.
I am satisfied that Respondents did not
fall foul of the provisions
section 22
of the CPA on this aspect. The
provisions of
Promotion of Access to Information Act 2 of 2000
were
also complied with in that the Respondents did not refuse or delay to
make the copy of the affidavit available to Applicants.
It was handed
to them within 24 hours from the receipt of the demand.
[39]
The search and seizure warrants were as already stated, in my
respectful view, clear and unequivocal.
It stated the charges that
were being investigated and were executed during the day. It should
be remembered that the approach
by court on search and seizure
warrants is that the interests of the parties affected thereby should
be balanced with the State’s
interests to combat crime.
Applicants’ contention that the searches were vague have no
factual basis. The search and seizure
warrants are an effort to
“fish” for any material that can be used to sustain the
charges that are being investigated
and should in absence of abuse of
power, be permitted.
[40]
The contention by Applicants to that
section 21(1)(b)
of the CPA
limits the power of the judicial officer or judge to issue search and
seizure warrant only in cases where the said judge
is presiding in
the proceedings has no basis. I say so because it could not have been
the intention of the legislature to limit
such power to the
magistrates and justices of peace to be able to issue a search and
seizure warrant before commencement of the
proceedings to the
exclusion of judges, that would be untenable. As a matter of fact,
and practice, judges of this Division issue
search and seizure
warrants in chambers on a regular and consistent basis and these
warrants just like ex parte orders given in
chambers and are capable
of being challenged in the Division and before a court presided over
by a single judge. It follows therefore
that all the search and
seizure warrants complied with
section 21(1)(b)
of the CPA read with
chapter 2 thereof. The warrants and their execution did not
constitute abuse of power capable of being impugned.
[41]
Then regard is had to the fact that the affidavit sought by a demand
letter was handed to Applicants
the following day after receipt of
demand, this application concerns, in my view all dispute that no
longer exist. It has been
held by our courts that courts should not
concern themselves with disputes that have become moot.
[11]
[42]
In
National
Coalition for Gay and Lesbian Equality v Minister of Home Affairs
[12]
the
Constitutional Court held that the case becomes moot when a dispute
no longer presents a live controversy between the warring
parties. In
the instant case, the affidavit which was demanded by Applicants, was
handed over without delay. There is therefore
no need for this court
to intervene. The relief sought by Applicant must, accordingly fail.
ORDER
[43]
The following order is made:
(a) The application is
dismissed with costs.
M.L. SENYATSI
JUDGE OF THE HIGH
COURT
Heard:

18 August 2021
Judgment:

24 March 2022
Counsel for
Applicants:
Advocate
E. Killian SC (Ms)
Instructed
by:

Victor Nkwashu Attorneys Inc. Johannesburg
Counsel for First
Respondents:      Advocate M.P. Mahlatsi
Instructed
by:

State Attorneys, Johannesburg.
[1]
[2019]
ZASCA 169
at para 6
[2]
[2008] ZACC 13
;
2008
(2) SACR 421
(CC); 2009 (1) SA (CC), BCLR 1197 (CC) para 85
[3]
See
S
v Kheswa and Another
2008(2)
SACR 123 (N) at para 27.
[4]
2011
(5) SA 61
(CC) at 73
[5]
Ibid
[6]
[2008] ZACC 15
;
2009 (2) SA 204
(CC)
[7]
See
Graaff – Reinet Municipality v Reyneveld’s Pass
Irrigation Board
1950 (2) SA 420
(A) at 424
[8]
2003 (2) SA 385
(SCA) paras 71 and 73
[9]
Ibid para 23.
[10]
Minister
of Safety and Security v Van der Merwe and others
above paras 60 and 61.
[11]
See
MEC
of Education, KwaZulu Natal v Pillay
[2007]
ZACC 21
,
2008 (1) SA 474
(CC),
2008 (2) BCLR 99
(CC) at para 22
[12]
(1999) ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) at para
21.