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[2010] ZAGPPHC 533
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Mogale and Others v Minister of Safety and Security and Others (48454/08) [2010] ZAGPPHC 533 (1 April 2010)
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IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
CASE NO:48454/08
DATE: 1 APRIL
2010
In the matter
between:
MOGALE,
DAISY DIBUSENG
PAULINAH
..........................................................................
First
Applicant
YOUNG
STARS TRADERS
CC
...........................................................................................
Second
Applicant
MPHUTLANE,
ELIZABETH
..................................................................................................
Third
Applicant
MPHUTLANE,
SIMON
..........................................................................................................
Fourth
Applicant
and
MINISTER
SAFETY AND
SECURITY
................................................................................
First
Respondent
THE COMMANDING
OFFICER OF THE
COMMERCIAL
BRANCH, HIGH PROFILE
INVESTIGATIONS
(SPECIALISED COMMERCIAL
CRIME
UNIT)
.....................................................................................................................
Second
Respondent
JUDEEL,
JAN
.........................................................................................................................
Third
Respondent
THE
HONOURABLE MAGISTRATE
MADAU
..............................................................
Fourth
Respondent
THE
HONOURABLE MAGISTRATE
NIEMAN
...............................................................
Fifth
Respondent
JUDGMENT
Ismail AJ:
[1] The applicants
brought an application to this court wherein they sought an order in
the following terms:
(1) Setting aside
the search and seizure warrant(s) alternatively reviewing and setting
aside the decisions to authorize the search
and seizure warrants in
respect of the following premises:-
1.1 […]
B[...] Street, C[...];
1.2 2
rd
floor, L[...] l[...] G[...], [...] S[...] B[...], B[...],
Johannesburg;
(2) Directing the
First, Second and Third respondents to return all of the documents ,
data and other property seized pursuant to
the search and seizure
warrant set out above, to the Applicants including all copies and
reproduction thereof in whatsoever form.
(3) Interdicting the
First, Second and Third Respondents and any agent, employee,
contractor or third parties on behalf of the aforesaid
Respondents
from utilizing any of the documents, data and the property seized
pursuant to the search and seizure warrants, or any
copy or
reproduction thereof, or having reference to any information
obtaining from the documents , data and other property of
the
Applicants seized pursuant to the search and seizure warrants, for
any purpose whatsoever.
(4) Ordering the
First, Second and Third Respondents, alternatively such Respondents
as may oppose the application, to pay the costs
on the scale as
between attorney and client.
(5) Granting the
Applicants further and/or alternative relief.
[2] This present
application for review was launched by the applicants on or about the
16 October 2008. Initially all the respondents
opposed the
application. The fourth and fifth respondents on the 22 January 2009
withdrew their opposition and they noted that
they would abide by the
Court’s decision.
[3] The first
applicant who is the sole member of the second applicant in her
founding affidavit at paragraph 18 set out the grounds
for the
review. The grounds in summary form are: -
(1) that the
warrants grossly exceeded the ambit of term thereof; (2) the
authorisation granted for the search and seizure warrants
were
unlawful in that the fourth and fifth respondents did not apply their
minds to the contents and request for the authorisation
of the search
warrants in that the warrants were authorised in the absence of
evidence under oath, more particularly the Justice
of Peace and
Commissioner of Oaths Act 16 of 1963 and the regulations promulgated
thereunder were not complied with; (3) The affidavit
of the third
respondent, Judeel, which was commissioned is dated 24 June , however
the date of the stamp indicates the 25 June.
In addition the
affidavit suggest that the oath was taken at Johannesburg whereas the
stamp on the document indicates Carltonville;
(4) the warrants were
authorised for offences in relation to which no grounds were set out
in the ‘affidavit’ indicating
that the applicants were
guilty of the offence or that reasonable grounds existed for the
issuance of the search and seizure warrants;
(5) the search and
seizure warrants authorised the participation of an unjustified
number of members of the SAPS, namely 17 members
and this resulted in
a gross invasion of the applicants right to privacy; (6) the warrants
permitted the search and seizure of
the two premises during the night
without any justification or motivation on the part of the third
respondent; (7) it was submitted
on behalf of the applicants that the
warrants ought to be set aside by virtue of the material
non-disclosure on the part of the
third respondent who withheld such
information from the fourth and fifth respondents. This conduct
vitiated the order granted and
therefore the warrants ought to be set
aside.
[4] The warrants for
the search and seizure in this matter were applied for in terms of
the provisions of section 20 read with
section 21
of the
Criminal
Procedure Act 51 of 1977
[CPA]. The relevant section read as follows:
Section 20:
-
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: to be used
(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.
Section 21
is
headed Article to be seized under search warrant’ It reads
21(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 the 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 of 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 that warrant, or
to enter and search any premises identified
in that 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 under
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 effected, hand to him a copy of the warrant.
The issue of
third respondent’s affidavit to the magistrate:
[5] The third
respondent presented an affidavit to the fifth respondent for a
search and seizure warrant. Pursuant to the warrant
having been
issued the applicants attorneys, Garlicke & Bousfield Inc
addressed a letter dated 14 July 2008 to the Specialised
Commercial
Crime Unit, Johannesburg for the attention of the Third Respondent. I
do not propose to quote the entire letter, but
only extracts thereof.
This letter is to be found at pages 133-135 of the papers.
Paragraph 4 on the
first page reads as follows:
“
Be
that as it may at the moment, we write to you to ask that you
forthwith supply to us on behalf of our clients, a copy of the
affidavit and annexures thereto and all documents placed before the
Magistrate who was asked to issue the search warrant in question
on
the 26
th
June 2008.
Further on in the
same latter at page 2 thereof the writer stated:
"
We must therefore
urgently ask for the aforesaid documents, namely the affidavit and
all other documentation placed before the Magistrate,
forming the
basis upon which the Magistrate applied his mind to grant the search
warrant in question. ”
[6] In response to
this letter the applicants attorneys were forwarded with an affidavit
of the third respondent which appears at
pages 111- 116 of the
indexed pages (annexure FA11). Notably this ‘affidavit’
is signed by the commissioner of oaths
but not by the deponent the
third respondent. Adv Bedhesi SC appearing on behalf of the
applicants submitted that the document
did not qualify as an
affidavit as it was not signed by the deponent.
[7] The record in
respect of the issuance of the warrant application was filed and the
affidavit of the third respondent is again
to be found at pages
235-240 of the papers. Save that this affidavit which is identical to
the one referred to in paragraph [6]
above bears a signature of the
deponent and is date stamped on pages 2, 3 and 5.
[8] Mr Bedhesi
submitted that the signature of the deponent appearing at pages
235-240 was inserted after the document was sent
to Garlike
& Bousfield Inc. and that the document presented to the
magistrate lacked the deponent’s signature.
[9] Mr Bedesi in his
heads of arguments referred to the regulations governing the
administration of oaths or affirmation in Government
Notice R1258 of
21 July 1972, as amended from time to time, which was promulgated
under section 10 of the Commissioner of Oaths
Act No16 of 1963 and
more particularly section 3(1) which stipulates:
“
The
deponent shall sign the declaration in the presence of the
Commissioner of oaths.
”
Furthermore
it was held in S
v
Msibi
1974
(4) SA 821
(T) that the provisions of regulation 2(1)( c) (that the
deponent be asked whether he or she considers the prescribed oath
binding
on his or her conscience) are peremptory, and strict
compliance thereof is required. See:
The
Law of South Africa
[Lawsa]
2
nd
edition volume 20 at para 132.
[10] Mr Lebala SC
appearing on behalf of the Respondents submitted that the Fifth
Respondent in his affidavit at pages 140-146 at
paragraph 9 thereof
stated;
“
I
refer the Honourable Court to the copies of the application submitted
to me on 26/6/08 which is attached hereto and which reflect
that it
has been signed by the deponent as well as the commissioner of oaths”
This affidavit is
obviously the document appearing at pages 235-240 and not annexure
FA11 (page 111). The magistrate conceded that
he did not notice the
difference in the dates and place where the affidavit was signed at
the time when he issued the warrant,
however he submits that he
considered the application and applied his mind. He concluded that a
reasonable suspicion was formed
that a invalid pyramid investment
scheme was in operation which needed to be investigated.
[11]
In
Pullen NO and
Others v Waja
1929
TS 1074
at Tindall J stated:
“
The
courts ought to examine the validity of warrants with a jealous
regard for the liberty of the subject and his rights to his
property
and to refuse to recognise as valid a warrant the terms of which are
to general”
[12] Had the warrant
only been obtained as a result of the affidavit of third respondent
which raised the question whether it was
deposed to correctly or not.
I would have questioned and in all probability have rejected the
warrant as being valid. The reason
being that the third respondent’s
affidavit created doubt whether the affidavit was deposed to before a
commissioner of oaths
or not. It raised the question whether there
was compliance with the Commissioner of Oaths and Justice of the
Peace Act. Judeel’s
affidavit which was presented to the
magistrate in order to obtain a warrant was accompanied by the
affidavit of Mpoti Susan Maweca
(annexure FA13). Her affidavit stated
how the alleged offence(s) were effected. The information she parted
to the third respondent
created a reasonable suspicion that documents
relating to the offences could possibly be found at the addresses the
warrants were
sought for.
In
Van der Merwe v
Minister van Justisie en ‘n Ander
1995
(2) SACR 471
(O) at 486 f-h the court held that hearsay evidence may
be adequate to obtain a warrant if it is reliable. Section 21 merely
states
that there must be evidence under oath and in this matter the
evidence of Susan Mpoti was in the form of an affidavit. I therefore
need not have to make any decision regarding the issue whether the
document signed by the third respondent was a statement or an
affidavit.
[13] In my view even
if I were to find that the affidavit of third respondent is tainted I
find that the affidavit of Mpoti Susan
Maweca resuscitated the
validity of the issuance of the warrant.
In
Powell N.O. &
Others v Van der Merwe and Others
2005(1)
SACR 317 SCA at 326i- 327b at para [14] the court held that:
“
What
is clear however, is that to launch a preparatory investigation the
investigating director must have, at least a suspicion
that some form
of offence [ or an attempt] is being or has been committed. There may
be uncertainty about the fact of the offence
or about the
categorisation or about the nature and strength of the evidence for
it. But an offence there must be and one is that
capable of
constituting a specified offence.
The reason being
that section 21 of the CPA does not prescribe that the affidavit must
be from the investigating officer. It states
that
“
the
magistrate or justice from information under oath”
may
issue a warrant. Such a warrant must be issued on reasonable grounds.
The fourth and fifth respondents in the determination
of issuing the
warrants were entitled to take into account those factors which would
lead them to reasonable believe that an offence
is being committed
and that documents may be at the premises for which a search and
seizure warrant is being sought. See
Minister
of Law and Order v Dempsey
1988
(3) SA 19(A)
[14]
The warrant was also attacked on the basis that the magistrates did
not apply their minds properly in that they authorised
that the
warrants could be effected at night “
up
to 22 h 00
"and
that 17 policemen were permitted to conduct the search and seize
documents from the premises.
Section
21 (3)(a) stipulates that
a
“search warrant shall be executed by day,
unless
the person issuing the warrant
in writing authorizes the execution thereof by night”
(
my underlining). Generally speaking warrants are to be executed
during daylight hours, however, the section permits a magistrate
or
justice to extend the period of the search- see
Young
and Another v Minister of Safety and Security and Others
2005
(2) SACR 437
(SEC) paragraph [30],
Where a warrant is
to be executed after sunset the magistrate or justice must in writing
authorise on the warrant the time up to
which the search and seizure
process may continue to.
This should always
be done with a view that the privacy of people and their homes are
not unduly invaded.
[15] The restriction
regarding the search was placed up to 22h00, this in itself suggest
that the magistrate was alive to the fact
that he did not want the
search to endure beyond that time or into the early hours of the
morning prior to sunrise.
[16] The applicants
also submitted that by allowing 17 people to conduct the search the
magistrate did not exercise his mind when
he authorised the search
warrant, i was told that there were myriad pages of documents which
were seized. Common sense suggest
that if fewer people had done the
search the process would in all probability have taken longer. As the
saying goes many hands
make light work. On the other hand the greater
the number of people conducting the search there would be more
activity at the premises.
I believe that by permitting as many as 17
persons to conduct the search it per se did not render the granting
of the warrant nugatory.
The CPA does not prescribe or place a limit
on the number of persons who may assist in such an operation. The
fundamental issue
is that the search must be conducted with dignity
and decorum and must not be an affront to the person and / or his
property.
[17] The fact that
17 policeman were named in the warrant does not imply that all of
them were utilised to conduct the search.
It merely implies
that no more than 17 person may traverse the premises. This number
signifies that some or all of those named persons
were permitted to
attend the premises. The third respondent could use some of the
members listed to assist him; or he could have
utilised all those
members listed to assist and others to back them up for security
reasons. All those named would not necessarily
be involved with the
search and seizure process in the strict sense thereof. On the other
hand the third respondent could have
utilised some of the named
persons who were on duty at the time whilst other members may have
been off work or busy with other
duties.
[18] Mr Bedhesi also
raised a point that the magistrate who issued the warrant failed to
take into account that the third respondent
did not even allude to an
offence in his affidavit. He refers to a passage from the third
respondent’s affidavit wherein
the following is stated:
“
The
reason for the search warrant is to search the premises as mentioned
in annexure
;
A'
to obtain all documents as mentioned in annexure B' to prove that the
agent and/or Young Star Investments did went (sic) into
a contract
with the complainant and that complainants money was paid over to
them as reflecting in their bank statements. ”
[19]
The third respondent attached the affidavit of the complainants in
order to obtain the search warrant. At page 238 of the papers
at
paragraphs 5 and 6 thereof stated “
As
the investigating officer in this matter and out of the affidavits of
the complainants that was obtained they feel that the agent
in this
matter and/or the company called Young Star / Double Star Investments
CC made a misrepresentation to them by putting them
under the
impression that if they invest money with the company they will
receive a profit as mentioned in the agreement knowing
that they will
not receive the profit.
Member (sic) of
the public lost the following amount as a direct result of the
actions of the agent and/or the company
called Young Star
/ Double Investment CC in total an amount ± R104 000 000.00"
Section 21 of the
CPA stipulates that an affidavit in support of a warrant must state
the offence committed or reasonably suspected
to have been committed.
The requirement is one of reasonableness and no higher such as beyond
doubt.
See
Powell’s
matter supra
at
paragraph [13] above;
Shidiack
v Union Government
1912
AD 642
at 651 and
Beukes
v Director General, Department of Manpower & Others
1993
(1) SA 19
(C) at 29A.
[20]
The affidavit in support of a search warrant need not disclose all
material facts. See
Thint
(Pty) Ltd v National Director of Public Prosecutions
2009
(1) SA 1
CC at 62 para [129],
[21] In conclusion
it is not necessary for me to determine the issue of whether the
third respondent’s affidavit complied
with the Commissioner of
Oaths and Justice of the Peace Act.
Mr
Bedhesi submitted that the affidavit which was sent to the applicants
attorneys was not deposed to and that the discrepancies
relating to
the date and place where the document was signed in all probability
was not a document which was made “
under
oath”
and
therefore did not comply with the provisions of section 21 of the
CPA. Even if I were to accept that Mr Bedhesi is correct for
the
purposes of argument this does not assist the applicants as there
were other statements under oath.
For the same reason
I need not pronounce upon the argument alluded to by Mr Lebala that
the affidavit of the third respondent complied
in substance with the
tenure of the CPA and not possibly with form.
[22] The applicants
application is premised on the belief that the third respondent’s
statement was not made under oath and
therefore the magistrate’s
did not apply their mind when they authorised the warrants.
[23] I accordingly
am of the view for the reasons set out above that the application
should be dismissed with cost. Such costs to
include the costs of two
counsel.
Appearances:
For the Applicants :
Adv Bedhesi SC assisted by Adv M Zulu
Instructed by
Garlicke and Bousfield c/o
DMR Attorneys
Pretoria.
For the First and
third Respondents: Adv Lebala SC assisted by Adv I P Ngobese
instructed by the
State Attorneys, Pretoria.
Judgment delivered :
1 April 2010