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[2011] ZAGPPHC 202
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Alberts v Hitchcock NO and Others (8927/10) [2011] ZAGPPHC 202 (21 October 2011)
NOT
REPORTABLE
IN.THE
NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 8927/10
DATE:21/10/2011
In
the matter between
GERHARDUS
JOHANNES
ALBERTS
.........................................................................
Applicant
and
S
HITCHCOCK
N.O,
...............................................................................................
1st
Respondent
THE
MAGISTRATE PRETORIA
THE
MINISTER OF
POLICE
................................................................................
2nd
Respondent
THE
DIRECTOR OF
PUBLIC
................................................................................
3rd
Respondent
PROSECUTIONS:
TRANSVAAL
JUDGMENT
MATOJANE
J
[1]
On 23 December 2007, Detective Inspector Coetzee, together with other
members of the South African Police Service, acting in
the course and
scope of their employment as servants of second
respondent,
entered the premises of applicant at 918 14th Avenue, Wonderboom
South, searched the premises and seized and removed
articles
consisting of computer equipment, videos and photographs containing
images of child pornography. The police purported
to act on the
strength of the search and seizure warrant ("the second
warrant") issued by magistrate S Hitchcock on 19
December 2007.
[2]
Pursuant to the search and seizure of the articles by detective
Inspector Coetzee, the applicant was arrested by her on 23 December
2007 for possession of child pornography (in contravention of
Section
27(1)
of the
Films and Publications Act 65 of 1996
).
[3]
The applicant seeks, inter alia, an order directing that the search
and seizure warrant issued by magistrate S Hitchcock on
28 November
2006 ("the first warrant) and 19 December 2007 respectively, be
set aside. That the seizure of articles pursuant
to the search and
seizure warrants be set aside and articles seized in terms of the
search and seizure warrants be declared inadmissible
in the criminal
prosecution against the applicant.
[4]
In terms of his founding affidavit in support of the application
(before its amendment), applicant avers that the first warrant
was
the only search and seizure warrant issued in respect of the premises
situated at 918 14th Avenue, Wonderboom South and the
articles which
formed the subject matter of the application were seized on 19
December 2006.
[5]
In the answering affidavit, the second respondent denies that the
charges against the applicant arise out of the search and
seizure
pursuant to the warrant issued by magistrate S Hitchcock on 28
November 2006 ("First warrant") and no articles
were at any
stage seized in terms of the first warrant. Second respondent avers
that the search and seizure warrant issued on 28
November 2006 was
cancelled on 19 December 2007. The articles seized in the possession
of the applicant were seized in terms of
the search and seizure
warrant issued by magistrate S Hitchcock on 19 December 2007 ("second
warrant") and it was executed
on 23 December 2007.
[6]
In his replying affidavit, applicant denies that the articles were
seized in terms of the second warrant.
[7]
The court is able to resolve this issue on the application of the
rule in Plascon-Evans Paints Limited v Van Riebeeck Paints
1984(3)
SA
623 AD 634-635.
The general rule in Plascon-Evans case is that
where disputes of facts have arisen in affidavits filed in motion
proceedings, a
final order may be granted if the facts alleged in the
applicant's affidavit which have been admitted by the respondent,
together
with the facts alleged by the respondent, justify such an
order.
[8]
On the facts that are common cause articles consisting of videos and
photographs containing child pornography were seized in
the
possession of the applicant at 918 14th Avenue, Wonderboom South.
Pursuant to the search and seizure of there articles, the
applicant
was arrested on 23 December 2007 for possession of child pornography.
It follows accordingly that the defendants version
that the articles
were seized in terms of the second warrant must prevail.
[9]
Applicant subsequently gave notice of his intention to amend the
notice of motion in order to set aside both warrants after
it was
alleged on behalf of the second respondent that the second warrant
dated 19 December 2007 and not the first warrant which
was issued on
28 November 2006 was executed.
[10]
It was submitted by counsel for the respondents that applicant should
not be permitted to make a case in reply when no case
was made out in
the original application. Counsel argued that applicant has failed to
make any case for setting aside of the second
warrant in the original
application and now seeks to substitute the existing claim in the
original application with a different
claim based on a different
cause of action in the replying affidavit.
[11]
Counsel for the applicant submitted that second respondent was
granted an opportunity by the Deputy Judge President to file
a
duplicate affidavit in answer to the new issues raised by applicant
in his replying affidavit and has failed to do so. Counsel
submitted
that second respondent has waived the opportunity to complain about
the new evidence in the replying affidavit.
[12]
It is trite that all the necessary allegations upon which an
applicant relies must appear in the founding affidavit, as applicant
will not generally be allowed to supplement the founding affidavit by
adducing supporting facts in a replying affidavit. See Erasmus,
Superior Court Practice (service 37, 2011 at Bl-45 and cases cited in
footnote 10).
[13]
The submission on behalf of applicant that respondent has waived the
right to complain about new evidence in the replying affidavit
is
untenable and unsustainable. For a waiver to be effectual the
applicant had to show that the second respondent, with full knowledge
of its right, decided to abandon it 'whether expressly or by conduct
plainly inconsistent with an intention to enforce it'. See
Laws v
Rutherford 1924 AD at 263. The Deputy
Judge
President in chambers did not make an order that respondent should
duplicate, he merely granted the second respondent an opportunity
to
file a duplicate affidavit if it so wishes. In my view, respondent
did not have any right to waive, as it is not permissible
for
applicant to make a case for the first time in the replying
affidavit.
[14]
In the founding affidavit in support of the relief sought in terms of
the notice of motion, applicant alleged that the warrant
issued on 28
November 2006 was "die enigste lasbrief is wat ten opsigte van
perseel 14de Laan 918, wonderboom-Suid uitgereik
is" and that
the warrant was executed on 19 December 2006 when the articles were
seized. In the replying affidavit applicant
now seeks a different
relief, namely the setting aside of the second warrant which is a
different claim based on a different cause
of action. The application
falls to be dismissed on this ground alone.
[15]
Counsel for the applicant submit that first respondent did not apply
her mind properly to the matter when she authorized the
first warrant
because Detective Coetzee admitted in her affidavit in support of her
application for the warrant that the suspicious
bank transactions
linking applicant to the purchase of images of child pornography on
his internet were disputed by the applicant
and that he was in fact
refunded by the bank and that the name of Griet van
Zyl
and the known address of 919 x55 Avenue Tshwane were false. Counsel
argued that on the information placed before the first respondent
there were no reasonable grounds for believing that articles, to
which the warrant relates, are articles as referred to in section
20
of the Criminal Procedure Act.
[16]
The same argument was advanced in respect of the second warrant.
Counsel submitted that the information as contained in the
affidavit
of Detective Inspector Coetzee before magistrate Hitchcock does not
say that there are reasonable grounds to believe
that an offence has
been committed. Counsel argues that at the time when Inspector
Coetzee requested the warrant she did not have
any information
indicating that applicant was in possession of any articles referred
to in Section 20 of the Criminal Procedure
Act because she states:
"...
ondersoek in te ste! en beslag te le op enige bewysstukke, soos
uiteengesit per aanhangsel A tot hierdie verklaring om
vas te stel of
daar enige oortreding plaasgevind net".
[17]
Section 20
of the
Criminal Procedure Act 51 of 1977
provides as
follows:
"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."
Section
21(1)
reads:
"Subject
to the provisions of
ss 22
,
24
and
25
, an article referred to in
s 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;..."
[18]
The 'reasonable grounds for believing' in
section 21(l)(a)
are not
grounds measuring up to an objective standard, but are grounds which
in the subjective opinion of he magistrate are reasonable.
See
Mandela and Others v Minister of Safety and
Security
and Another 1995(2) SACR 397 (W) at 404g-i. It follows that there is
not onus on the magistrate to show that 'reasonable
grounds for
believing' in fact existed that an article referred to in
section 20
was within her area of jurisdiction. The court will only interfere
with the magistrate's exercise of her discretion in exceptional
circumstances, if it can be shown that she had not properly applied
her mind to the matter or in the case of bad faith of the magistrate
in issuing the warrant.
[19]
From the information on oath placed before the second respondent at
the time of issuing the first warrant, it appeared that
a certain
Griet van Zyl ordered and paid for images of child pornography from a
website during 2003. The bank account used for
the child pornography
transactions was a BOE bank, now Nedbank and the particulars of the
account holder is that of the applicant.
According to the bank
statement, the transactions were in dispute and applicant was
refunded. Detective Coetzee says in the affidavit
"Therefore it
seems necessary to conduct an investigation to determine if the
accountholder could have bought child pornography
on other websites".
[20]
The information on oath before the second respondent at the time of
her issuing the second warrant was that subsequent to the
issue of
the first search and seizure warrant on the 28 November 2006, new
information had come to light via an investigation team
of the
American Embassy that an agent in America had reported that one Griet
van Zyl had made contact with the agent and that the
discussions had
taken place in respect of the manufacturing of child pornography.
This Griet van Zyl is the same person as the
applicant in respect of
whom the first warrant had been obtained.
[21]
I disagree with the submission by counsel for the applicant that the
information as contained in the affidavit of Detective
Inspector
Coetzee when she applied for the first warrant, does not state that
an offence has been committed. It is clear from the
affidavit that
images of child pornography were bought which may afford evidence of
the commission of an offence. Detective Inspector
Coetzee clearly
states that she wanted to conduct an investigation to determine if
the applicant could have bought child pornography
on other websites.
The second affidavit states that applicant had contacted an agent
regarding the manufacturing of pornography.
The information before
the magistrate showed that applicant was involved with child
pornography which is an offence.
[22]
In my view, the information on oath which was before the magistrate
at the time she issued both warrants shows that she properly
applied
her mind to the matter and subjectively found that there were
reasonable grounds to believe that articles referred to in
section 20
of the
Criminal Procedure Act involving
the offence of possession of
child pornography were at the premises of the applicant. Her belief
was vindicated when articles consisting
of videos and photographs
containing child pornography were seized in applicants possession
pursuant to the second warrant.
[23]
In the result the following order is made:
The
application is dismissed with costs.
KE
MATOJAN E
JUDGE
OF THE HIGH COURT