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[2023] ZAFSHC 1
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Buchler v Minister of SAPS N.O. and Others (6310/2022) [2023] ZAFSHC 1 (5 January 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
number: 6310/2022
In
the matter between:
DUANE
BUCHLER
Applicant
and
THE
MINISTER OF SAPS
N.O.
First Respondent
WARRANT
OFFICER MOLELEKOA JERRY HLAPO N.O.
Second Respondent
THE
MAGISTRATE: PARYS
N.O.
Third Respondent
HEARD
ON:
22 DECEMBER 2022
CORAM:
MATHEBULA, J
DELIVERED
ON:
The judgment was handed down electronically by circulation to
the
parties’ legal representatives by email and release to SAFLII
on 5 JANUARY 2023. The date and time for hand-down is deemed
to be 5
JANUARY 2023 at 14H15.
[1]
The applicant brought an urgent application to set-aside the search
and seizure warrants
issued by the third respondent. The ancillary
relief is the return of the assets specifically mentioned in Annexure
“A”
of the founding papers seized by members of the first
respondent. The warrants were issued on 5 December 2022 on the
strength of
the affidavits deposed to by the second respondent also
on the same date.
[2]
The applicant is the owner of a business called “Chill
Net-Internet Café”
operating from the address known as 2
Choppies Building, Kruis Street, Parys. The first respondent is cited
in his official capacity
as the Minister of Safety and Security of
the Republic. The second respondent is an employee of the first
respondent with the rank
of Captain attached to a Directorate
colloquially called “The Hawks” who was acting within the
cause and ambit of his
employment with the first respondent. The
third respondent is the Senior Magistrate of the district of Parys.
The matter is opposed
by the first and second respondent. The third
respondent abides. It follows that no order I can make will be
against any or all
of the respondents in their personal capacities.
[3]
Briefly the facts on which the applicant based his application are as
set out in the
paragraphs hereunder. The applicant has been
conducting a business from the aforementioned premises from 2013. The
premises are
leased from a third party who is not party to the
current proceedings. According to him, it is an internet café.
The applicant
avers that he is the lawful possessor of the assets
seized as per the warrants issued by the third respondent. The
version of the
opposing respondents is that the applicant is engaged
in illegal gambling activities.
[4]
The third respondent issued two warrants for search and seizure of
assets belonging
to the applicant. One warrant was in terms of
section 21
of the
Criminal Procedure Act 51 of 1977
and the other
warrant was in terms of section 29(1)(a) of the Cybercrimes Act 19 of
2020. These warrants were issued on the strength
of the affidavits
deposed to by the second respondent. The parties are in agreement
that they were the only documents before the
third respondent to
consider whether to issue the warrants or not. In his affidavits, the
second respondent sets out the offences
that were investigated
quoting the relevant sections of various Acts allegedly transgressed
by the applicant. He went further and
stated that the information was
also gathered through the use of undercover agents who made certain
observations and confirm that
the applicant is engaged in illegal
gambling activities. Therefore, the inescapable conclusion is that
there is sufficient information
on oath that there are reasonable
grounds that the assets involved in the commission or suspected
commission of an offence are
within the jurisdiction of the third
respondent.
[5]
It is common cause that the warrants were executed on 7 December 2022
and items mentioned
in paragraph 36 of the founding affidavit were
seized. There is no dispute that the applicant was in peaceful and
undisturbed possession
thereof.
[6]
I pause to mention that the question whether the matter is urgent or
not is no longer
a contested terrain between the parties. I agreed
with them that there are no grounds for urgency.
[7]
The applicants relied on four (4) grounds in support of the
application. They are
as follows: -
1.
The third respondent did not apply her mind when he issued the
warrant and failed to appreciate
the provisions of the
Criminal
Procedure Act 51 of 1977
that governs the authorisation of warrants.
The point raised is that the third respondent failed to appreciate
the legal principles
underlying the issuing of a valid warrant.
2.
The warrants suffer from over broadness and does not comply with the
intelligibility principle.
3.
The information relied upon contained in the affidavits of the second
respondent could not
be accepted as establishing a reasonable
suspicion.
4.
The information placed before the third respondent was not obtained
in a lawful manner.
On
these grounds the applicant contended that the warrants are bad in
law and susceptible to be set-aside. Therefore, should that
eventuate, possession of the seized assets must be restored to him.
[8]
It is useful to deal, to some great length with all the arguments
raised by both counsel
primarily because of the order I intend to
make. Mr Jagga for the applicant commenced his argument by pointing
out that in the
matter where the police act under a statute to
perform search and seizure, it fits within the stature of a
spoliation application.
He placed his reliance solely on the
decisions of the Supreme Court of Appeal in
Ivanov
v North West Gambling Board and Others
[1]
and the Constitutional Court in
Ngqukumba
v Minister of Safety and Security
.
[2]
[9]
In
Ngqukumba
’s decision it was said by Madlanga J on
paragraphs 12 and 13: -
A
spoliation order is available even against government entities for
the simple reason that unfortunately excesses by those entities
do
occur. Those excesses, like acts of self-help by individuals, may
lead to breaches of the peace: that is what the spoliation
order,
which is deeply rooted in the rule of law, seeks to avert. The likely
consequences aside, the rule of law must be vindicated.
The
spoliation order serves exactly that purpose.
It
matters not that a government entity may be purporting to act under
colour of a law, statutory or otherwise. The real issue is
whether it
is properly acting within the law. After all, the principle of
legality requires of state organs always to act in terms
of the law.
Surely then it should make no difference that in dispossessing an
individual of an object unlawfully, the police purported
to act under
colour of the search and seizure powers contained in the
Criminal
Procedure Act. Non-compliance with
the provisions of the
Criminal
Procedure Act in
seizing a person's goods is unlawful. This
unlawfulness, plus the other requirement for a spoliation order
(namely, having been
in possession immediately prior to being
despoiled), satisfies the requisites for the order. All that the
despoiled person need
prove is that —
(a)
she was in possession of the object; and
(b)
she was deprived of possession
unlawfully.
[10]
From these pronouncements of the apex court, it is quite clear that
mandament van spolie
is available even against the police.
That will be in situations where they seize assets from people in an
unlawful manner. The
remedy is one of the concerted efforts to stop
and weed out the repugnant method of resorting to self-help. I agree
with his submission
and it stands clear that where the requisites for
spoliation order have been satisfied, it must simply be granted.
[11]
For the applicant it was pointed out that the two warrants that were
issued are against four
separate entities. The point made is that
there is no averment in the statement of the second respondent, that
the businesses concerned
belong to the same entity or person. Closely
connected is the damning shortcomings of the information pertaining
to the activities
of the undercover agents. The allegations are
spread out in general terms without specifics on what they did at
different locations.
[12]
Mr Jagga urged me to adjudicate the matter in accordance with the
test outlined in
Minister of Safety and Security v Van Der Merwe
and Others
. Mogoeng J (as he then was) writing for the undivided
on paragraph 39 said the following: -
“
Secondly,
the section requires that the decision to issue a warrant be made
only if the affidavit in support of the application
contains the
following objective jurisdictional facts: (i) the existence of a
reasonable suspicion that a crime has been committed;
and (ii) the
existence of reasonable grounds to believe that objects connected
with the offence may be found on the premises or
persons intended to
be searched. Both jurisdictional facts play a critical role in
ensuring that the rights of a searched person
are not lightly
interfered with. When even one of them is missing that should spell
doom to the application for a warrant”.
[3]
[13]
Turning to the particularity of the warrant, he specifically relied
on the judgment of
Goqwana
v Minister of Safety NO and Others
.
[4]
In that matter the court held that “the need for particularity
of the search warrant especially where one is dealing with
statutory
offence is salutary.” The key requirement is that every
relevant section and subsection must be adequately referred
to. The
court did not find this requirement to be onerous on the magistrates
because they are both academically well-equipped and
vastly
experienced.
[5]
He mounted an
attack on the warrants under review that they did not make mention of
any subsections which also contain various
offences. He added that
the statement of the second respondent did nothing to show the third
respondent why there is some objective
jurisdictional facts to
suspect the commission of the offences. The point made is that the
warrants are invalid because of vagueness
and lack reasonable
intelligibility.
[14]
He demonstrated that there is no cogent reason why the warrants were
issued given the description
of some of the assets that were to be
removed. Among them were cheques which have not been a legal tender
in the Republic for some
time. There is no reason put forward why
this archaic legal tender should be removed or even feature in
offence(s) investigated
against the applicant.
[15]
The further point taken was the lack of full description pertaining
to the premises. The statement
of the second respondent makes it
clear that information was collected by making use of undercover
agents. This was in contravention
of
section 252A
of the
Criminal
Procedure Act 51 of 1977
. The provision in this Act cannot be
implemented at whim. Stringent requirements must be met and its
provisions applied as a measure
of last resort. This aspect was not
questioned by the third respondent. What is damaging in the case for
the respondents, he argued,
is that there are no specifications as to
the operations that occurred at the four different locations. They
were lumped together
as though the information is applicable to all
of them.
[16]
More importantly he argued that the second respondent should have
provided an explanation on
each and every business site to sustain
his assertion of a reasonable suspicion. I am inclined to agree with
this submission because
one must establish an objective
jurisdictional fact. That is the kind of information on oath that
should have been placed before
the third respondent before the
warrants were issued. This is also in line with the established
authorities in
Van
Der Merwe
supra
and
Powell
NO and Others v Van der Merwe NO and Others.
[6]
[17]
The court in
Powell NO and Others v
Van der Merwe NO and
Others
described the meaning of suspicion in the following terms:
-
“
This Court has
endorsed and adopted Lord Devlin’s formulation of the meaning
of ‘suspicion’:
‘
Suspicion in its
ordinary meaning is a state of conjecture or surmise where proof is
lacking; ‘I suspect but I cannot prove’.
Suspicion arises
at or near the starting point of an investigation of which the
obtaining of
prima
facie
proof is the end.’”
[7]
[18]
Counsel for the applicant submitted that the provisions of the
Criminal Procedure Act 51 of 1977
in relation to warrants only
applies insofar as it is not inconsistent with the provisions of the
Cybercrimes Act 19 of 2020. In
this matter the third respondent was
wrong to authorise the search and seizure articles within the
definition of the latter Act.
He took issue with the fact that the
warrants make reference to ships, vehicles, aircraft etc. This is a
deviation from the facts
in the statement used to obtain them. I
agree with this submission.
[19]
Ms Ngubeni in reply referred to the affidavits filed by the second
respondent which were the
only documents placed before the third
respondent. She stated that at that stage the second respondent was
not in possession of
the entire evidence against the applicant. This
makes sense because the matter is still under investigation. All he
had to do was
to make averments to sustain an assertion for a
reasonable suspicion. She argued that the applicant knew exactly what
offences
were levelled against him. She referred to the notices that
were sent to the landlord by the Free State Gambling Board which
elicited
the response from his attorney of record. On that score, he
argued that the principle of intelligibility had been satisfied. I
have difficulty with this argument. The third respondent is the one
who must be appraised with all the facts on oath before issuing
the
warrants.
[20]
According to her the affidavit of the second respondent did
explicitly make mention of the equipment
suspected to be used to
commit the offence(s). The reasons thereof were also made known to
the third respondent to consider whether
to grant the warrants or
not. Counsel for the respondents argued that the submission to the
effect that a warrant in terms of the
Criminal Procedure Act was
bad
in law is superfluous. She relied on section 27 of the Cybercrime Act
which specifically permits concurrent operation of the
Criminal
Procedure Act to
the extent that there is no contradiction.
Therefore, there is nothing untoward concerning the warrants. Her
logic is that the
arguments applicable to one warrant are also valid
for the other.
[21]
Ms Ngubeni with reference to the decision of the court in
Oosthuizen
v The Magistrate for the District of Hermanus and Others
[8]
specifically paragraphs 39 to 42 argued the court that reviews a
warrant must be satisfied the objective jurisdictional facts for
its
issue were present. I agree. In that matter the court proceeded to
set out the jurisdictional facts required by
sections 20
and
21
of
the
Criminal Procedure Act 51 of 1977
that are reasonable. She
contended that the applicant was at all times represented by an
attorney. The point made is that it is
preposterous for the applicant
to now claim that he does not know anything about the offences.
[22]
She conceded, and correctly so, that there were anomalies in the
warrants. This argument is problematic
because it creates a process
beyond that enacted in the relevant provisions. The magistrate must
only consider what is before him
or and nothing else. On this aspect
she contended that the court in
Naidoo
and Others v Kalianjee NO and Others
[9]
looked at what the effect of the anomalies would be. Similarly, she
argued that the warrants in this matter had limitations and
were
identifying in clear terms the assets to be searched and subsequently
seized. Her argument was where something with no force
and effect is
mentioned, there can be no prejudice. Overall there was sufficient
information placed before the third respondent
to issue the warrants.
[23]
The significance of the role played by warrants of search and seizure
in the fight against crime
cannot be underestimated. Equally their
intrusive nature in the right to privacy entrenched in our
Constitution is a cause for
concern. This means that a court
considering these competing interests has to move ahead applying a
fine balancing act. This is
the approach followed in a long list of
decided cases. A useful barometer to determine a valid and
enforceable warrant was succinctly
stated in
Powell
NO and Others v Van der Merwe NO and Others
by Cameron JA (as he then was)
supra
on paragraph 59. These guidelines were reiterated with some eloquence
by the apex court in
Minister
of Safety and Security v Van der Merwe
supra.
[10]
[24]
It is apposite to discuss in some detail the intelligibility
principle as applied to the warrants.
Both counsel spent some
concerted effort to persuade me that the warrants were valid or
invalid purely on this ground. A search
and seizure warrant must
satisfy the intelligibility principle which is rooted in the founding
values of the Constitution. The
test underpinning it is an objective
one.
[25]
On paragraph 44 of the
Van Der Merwe
decision
supra
Mogoeng J (as he then was) described the objective test it in the
following: -
“
The
core issue is whether the warrant would be reasonably capable of that
clear understanding, even if the offence were not mentioned
in it.
Put differently, does the intelligibility principle require the
specification of the offence in the s 21 warrant for its
validity?”
This
principle is in keeping with the requirement that the exercise of
state power must be accountable, predictable and understandable.
If
the warrant falls short of this threshold, it is bound to be declared
invalid and set-aside.
[26]
The compelling argument made on behalf of the applicant pertaining to
the relief sought being
a
mandament van spolie
is uncontested.
Counsel for the respondents did not, even once, refer to it. The
legal principles as submitted for the applicant
are correct. The
respondents are not immune and this remedy is available to the
victims whose assets were seized unlawfully. Therefore,
any finding
that the warrant is invalid, the concomitant result is that
restoration must take place.
[27]
I now turn to consider legal challenges launched against the validity
of the two warrants. The
fact of the matter is that the court issuing
warrants must consider what is put before it at the time it is
exercising its powers.
It cannot consider anything that is not before
it. In this matter, it considered the two affidavits deposed to by
the second respondent.
Nothing else. The case for the respondents
stands or falls on these two documents.
[28]
For the third respondent to issue a warrant there must be information
on oath that there are
reasonable grounds for believing that there is
an article which may afford evidence of the commission or suspected
commission of
the offence. Lewis JA in
Minister
of Safety and Security v Ndiniso
held that facts must be advanced to justify a finding that the belief
was based on reasonable grounds.
[11]
It is then expected of the magistrate or judge to scrutinize it with
great skill and care that it meets the requirement to issue
a
warrant.
[29]
What is required is that the information must be beyond mere
assertion. This will include and
not limited to, who made the report,
the particulars of the information and importantly why it must be
considered reliable. This
is the difficulty that I encounter with the
case for the respondents. It does not go deep enough on the details.
That there are
other documents like notices issued and letters from
the attorneys in response does take their case to any heights.
Clearly the
third respondent did not have such information when he
issued the warrants. Plainly he could not have applied his mind on
what
was not before him. With the scant information before him, there
was not enough to conclude that objective jurisdictional facts
existed.
[30]
The other attack on their validity is over broadness and that they do
not comply with intelligibility
principle. I agree with these
submissions. It does not do the case for the respondents any good by
simply throwing the rule book
on the applicant with the hope that
something might stick. The respondents must state with clear
particularity “verse and
chapter” of the relevant Acts
they place their reliance on.
[31]
The warrants make mention of contravention of sections 118 (1) and
(2) of the Free State Gambling
and Liquor Act 6 of 2010 and
sections
8
,
10
and
11
of the
National Gambling Act 7 of 2004
. The defect on
this aspect is that those sections have subsections which also create
offences. It cannot be assumed that their
omission means that they
are not part of the offences investigated against him. It must be
clear from the outset. As they stand,
the warrants lack the offence
specification requirement which has been deemed an integral part of
the intelligibility principle.
I have referred to a long list of
cases that stressed the point. The offence, it has been held, must be
laid down unequivocally
and without qualification. That cannot be
said about the warrants under review.
[32]
I encounter difficulty with the argument that the mentioning of wide
and numerous unnecessary
articles does not have any effect or
prejudice the applicant. Clearly some of the mentioned articles have
no bearing whatsoever
with the investigation of the case against the
applicant. As a result, one cannot harbour any reasonable suspicion
on them. This
failure lends credence to the assertion that the third
respondent did not apply his mind. He could not have issued such an
all-encompassing
warrant when there was no information put before him
to justify it. It has been stated that the purpose of the warrant is
for the
police to understand exactly the authority in it and what he
has to do. Equally the person against whom it is executed must also
be appraised with the reasons why his rights are being overrun.
Clearly if the warrant is lacking in this respect, as the two
warrants are, they cannot stand.
[33]
This brings me to the examination of the argument advanced on behalf
of the respondents whether
the decision of
Naidoo v Kalianjee
NO and Others
finds
application in this matter. That question is answered in the
negative. The facts are distinguishable. The court in that matter
considered the warrants within the context of
section 69
of the
Insolvency Act 24 of 1936
.
[34]
The court on paragraph 24 restated the
overall
purpose of a warrant issued in criminal proceedings that it is to
find and seize evidence of the commission of a crime which
may be
preserved for use, should a prosecution follow. T
he court in
unequivocal terms repeated that the underlying purpose of the warrant
issued in terms of the
Insolvency Act 24 of 1936
is fundamentally
different from the one issued in terms of the
Criminal Procedure Act
51 of 1977
. Leach JA and Mayat AJA referred with approval to the
following dictum by Marais JA in
Cooper NO v First National Bank
of South Africa Limited
2001 (3) SA 705
(SCA)
at para 16.
“
'The
decision to issue a warrant is in no sense an adjudication of any
substantive issue, existing or potential, between the trustee
and the
third party or between the insolvent and the third party. Success in
obtaining a warrant and success in its execution brings
the trustee
no more than provisional physical possession of the relevant asset.
The trustee's continued possession is open to challenge
in the courts
and the customary gamut of remedies (review proceedings, prohibitory
interdicts, vindicatory actions, declarations
of right, etc) is
available to the third party. A successful challenge will bring an
end to the trustee's possession.'”
[12]
Therefore,
any reliance on this case is misplaced.
[35]
For these reasons, I conclude that the application ought to succeed.
No argument was made why
the losing party should not be liable to pay
the costs. In the exercise of my discretion on that aspect, there is
also no reason
to deviate from the rule to make such as an order.
[36]
In the result I make the following order: -
36.1. Condoning the
non-compliance with the forms and service provided for in the Uniform
Rules of Court and disposing of the application
as matter of urgency.
36.2. The warrants issued
(in terms of
section 21
of the
Criminal Procedure Act and
29 of the
Cybercrimes Act, respectively) by the third respondent (dated 5
December 2022), in respect of the applicant’s business
at Shop
2, Choppies Building, Kruis Street, Parys, (“the warrants”)
and executed on 7 December 2022 by the second respondent
are
set-aside.
36.3. The first and
second respondents (including any other person acting as agent on
behalf of those respondents and may be in
possession of the
applicant’s articles that were seized (as set out in Annexure A
to the Notice of Motion), are ordered to
forthwith restore the
applicant’s possession and return those articles to the
applicant’s business premises.
36.4. Costs of
application are to be paid by the first and second respondent jointly
and severally, the one paying the other to
be absolved.
M.A.
MATHEBULA, J
On
behalf of the applicants:
Adv. N. Jagga
Instructed
by:
Vardakos Attorneys
VEREENIGING
C/O
McIntyre Van Der Post
BLOEMFONTEIN
On
behalf of the 1
st
& 2
nd
respondents:
Adv. T. Ngubeni
Instructed
by:
State Attorney
BLOEMFONTEIN
On
behalf of the 3
rd
respondent:
No appearance
[1]
2012 (6) SA 67 (SCA).
[2]
2014 (5) SA 112 (CC).
[3]
2011 (5) SA 61 (CC).
[4]
2016
(1) SACR 384
(SCA).
[5]
Paragraph 29.
[6]
2005
(5) SA 62 (SCA); [2005] 1 All SA 149 (SCA).
[7]
Supra at paragraph 36.
[8]
2021 (1) SACR 278
(WCC) (29 October 2020).
[9]
2016 (2) SA 451
(SCA).
[10]
At paragraph 29.
[11]
2007 JDR 0185 (SCA).
[12]
Also
reported as
[2000]
4 All SA 597.