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[2010] ZASCA 101
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Minister of Safety and Security and Another v Van der Merwe and Others (556/09) [2010] ZASCA 101; [2011] 1 All SA 260 (SCA) ; 2011 (1) SACR 211 (SCA) (7 September 2010)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 556/09
In the matter
between:
MINISTER OF
SAFETY AND SECURITY First Appellant
THE COMMISSIONER:
SOUTH AFRICAN
REVENUE
SERVICE Second Appellant
and
GARY WALTER VAN
DER MERWE First Respondent
MONIQUE VAN DER
MERWE Second Respondent
FERN CAMERON
(formerly VAN DER MERWE) Third Respondent
ALAN RAYMOND
FANAROFF Fourth Respondent
TANTCO GLOBAL
(PTY) LTD Fifth Respondent
EXECUTIVE
HELICOPTERS (PTY) LTD Sixth Respondent
EXEL AVIATION
(PTY) LTD formerly AIFRACT
SUPPORT (PTY)
LTD Seventh Respondent
MADIBA AIR AND
SEA (PTY) LTD Eighth Respondent
HELICOPTER AND
MARINE SERVICES (PTY) LTD Ninth Respondent
ZONNEKUS MANSIONS
(PTY) LTD Tenth Respondent
SUMMER DAZE
TRADING 712 (PTY) LTD Eleventh Respondent
WESTSIDE TRADING
(PTY) LTD Twelfth Respondent
SA BARTER (PTY)
LTD Thirteenth Respondent
TWO OCEANS
AVIATION (PTY) LTD Fourteenth Respondent
HELIBASE (PTY)
LTD Fifteenth Respondent
Neutral
citation:
Minister of Safety and Security v Van der Merwe
(556/09)
[2010] ZASCA 101
(7 SEPTEMBER 2010)
Coram:
HARMS
DP, NUGENT, SHONGWE and TSHIQI JJA and BERTELSMANN AJA
Heard:
20
AUGUST 2010
Delivered: 7
SEPTEMBER 2010
Summary:
Warrant
for search and seizure issued under Criminal Procedure Act –
must specify offence under investigation – whether
terms of
warrant overbroad.
_____________________________________________________________________
ORDER
_____________________________________________________________________
On appeal from:
Western
Cape High Court (Cape Town) (Davis and Saldanha JJ sitting as court
of first instance):
The appeal is dismissed with
costs that include the costs of two counsel. The cross appeal is
dismissed with costs that include
the costs of two counsel.
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________
NUGENT JA (HARMS DP, SHONGWE and
TSHIQI JJA and BERTELSMANN AJA concurring)
[1] This case concerns four
search and seizure warrants that were issued by magistrates under the
authority of
s 21
of the
Criminal Procedure Act 51 of 1977
. The
warrants were issued at the instance of the police upon information
provided by the South African Revenue Service (SARS).
Three of the
warrants – I will call them the Cape Town warrants – were
issued simultaneously and authorised the search
for and seizure of
documents from various premises in Cape Town. The other warrant –
which I will call the Bellville warrant
– was issued by a
different magistrate and granted similar authority in relation to
premises in Bellville.
[2] All the respondents –
and in particular Mr van der Merwe, the first respondent – have
an interest in one or more
of the warrants. They applied to the High
Court at Cape Town for orders, amongst others, setting aside the
warrants, and directing
the return of the seized items. The court
(Davis and Saldanha JJ) set aside the Cape Town warrants. A counter
application for a
preservation order of the kind that was sanctioned
by the Constitutional Court in
Thint
(Pty) Ltd v National Director of Public Prosecutions; Zuma v National
Director of Public Prosecutions
1
was postponed for later hearing and was duly granted. That order is
not under appeal before us. The application to set aside the
Bellville warrant was dismissed. With the leave of the court below
the Minister of Safety and Security and the Commissioner of
SARS now
appeal against the orders relating to the Cape Town warrants, and the
respondents cross-appeal against the order relating
to the Bellville
warrant. Both are before us with the leave of the court below.
2
[3] For some years the financial
affairs of Mr van der Merwe were under investigation by the Criminal
Investigations Unit of SARS.
In about December 2007 the investigation
was placed in the hands of Superintendent Kotze of the Commercial
Branch of the South
African Police Services. She applied to
magistrates at Cape Town and Bellville respectively for the issue of
the warrants that
are now in issue. The applications were supported
by an affidavit deposed to by Superintendent Kotze in which she said
that there
was reason to believe that fraud and contraventions of the
Value-Added Tax Act 89 of 1991, the Income Tax Act 58 of 1962 and the
Prevention of Organised Crime Act 121 of 1998
had been committed by
one or some of the respondents. (The alleged participation of various
of the respondents in the offences
was set out in the affidavits but
I need not deal with those details.) She set out in considerable
detail the nature of the suspected
offences in each case, supported
by appended documentation. On the strength of that information the
various warrants were issued.
[4] The three Cape Town warrants
relate to separate premises described as Zonnekus Mansions, Helibase
and Royal Ascot respectively.
But for that distinction they are in
substantially the same form. The warrants were in a standard form
with appropriate additions.
In each case the warrant was addressed to
‘the persons as listed in “Annexure A” hereto’.
They recorded
that it appeared to the magistrate from information
under oath that there were reasonable grounds to believe, amongst
other things,
that the articles listed in Annexure B to the warrant
were connected to the commission of an offence,
3
and that they were at or on the premises mentioned. The warrants went
on to authorise such persons to enter and search the relevant
premises and any person found on the premises and ‘to seize the
articles as described in Annexure B hereto if found’.
They also
provided in Annexure C for the search, seizure and copying of
computer related matter. The warrants concluded by directing
the
searchers to ‘deal with [the seized articles] according to law
/ bring [the seized articles] before me to be dealt with
according to
law’. Annexure A contained the names of 36 police officers and
nine officials of SARS. Annexure B contained
an extensive list of
documentation classified in 18 paragraphs.
[5] The Bellville warrant was in
substantially the same form but with one important distinction. While
the Bellville warrant contained
the same introductory narration in
that case the offences concerned were described in considerable
detail in an annexure to the
warrant.
[6] In the founding affidavit
deposed to by Mr Van der Merwe the validity of the warrants, and the
lawfulness of the execution of
the Cape Town warrants, was sought to
be attacked on numerous grounds. It is not necessary to deal with the
allegations relating
to the execution of the Cape Town warrants for
reasons that will become apparent. I also need not deal with all the
grounds upon
which the validity of the warrants was initially sought
to be impugned because they have narrowed.
[7] I think it is useful briefly
to restate some broad principles relating to warrants for search and
seizure before turning to
the particular issues that arise in this
case.
[8] We are not concerned in this
case – nor has that been the concern in other cases to which I
refer – with powers
of search and seizure that might have
existed at common law but instead with powers created by statute.
From the earliest criminal
codes – both in this country and
abroad – statutory powers of search and seizure have existed
for the detection and
prosecution of crime. Such powers to search and
seize in relation to crime are generally authorised in the following
way.
[9] A court or judicial officer
is empowered by the statute to authorise, first, a search of
premises, and secondly, the seizure
of articles found in the course
of that search, by issuing a warrant to that effect. Most often the
power to issue such a warrant
is dependent upon it being shown by
information on oath that it is suspected on reasonable grounds that
an article (or articles)
connected with a suspected offence is to be
found on premises.
4
[10] For a warrant to be
justified in such circumstances the information that is placed before
the court or judicial officer will
necessarily need to demonstrate,
first, that there are reasonable grounds to believe that a crime has
been committed, and secondly,
that there are reasonable grounds to
believe that an article connected with the suspected crime is to be
found upon particular
premises. In order to demonstrate the existence
of those jurisdictional facts the ‘information on oath’
will necessarily
need to disclose the nature of the offence that is
suspected.
[11] In some cases it will be
known that a particular article exists that is connected with the
suspected crime. In those cases
the purpose of the search will be to
discover the particular article, and the article will thus be capable
of being described in
specific terms. In other cases it will not be
known whether any particular article exists but it can be expected
that an article
or articles of a particular kind will exist if the
offence was committed. In such cases the purpose of the search will
be to discover
whether such article or articles exist, and thus it or
they will be capable of being described only by reference to their
genus.
It is in relation to warrants of that kind that problems of
validity most often arise. It will be inherent in the nature of the
authority to search that the searcher might in appropriate
circumstances be entitled to examine property that is not itself
connected
with the crime – for example, the contents of a
cupboard or a drawer, or a collection of documents – to
ascertain whether
it contains or is the article that is being sought.
[12] The authority that is
conferred by a warrant to conduct a search and then to seize what is
found makes material inroads upon
rights that have always been
protected at common law – amongst which are rights to privacy
and property and personal integrity.
In those circumstances –
as demonstrated by the review of decided cases by Cameron JA in
Powell NO v Van der
Merwe NO
5
–
the courts in this country have always construed statutes that
authorise the issue of warrants strictly in favour of the
minimum
invasion of such rights – which is in accordance with a general
principle of our law to that effect. As the learned
judge said in
that case:
6
‘
Our law has a
long history of scrutinising search warrants with rigour and
exactitude – indeed, with sometimes technical rigour
and
exactitude. The common law rights so protected are now enshrined,
subject to reasonable limitation, in s 14 of the Constitution:
“
Everyone has
the right to privacy, which includes the right not to have –
(a) their
person or their home searched;
(b) their
property searched’;
(c) their
possessions seized; or
(d) the
privacy of their communications infringed.” ’
[13] A challenge to the validity
of a warrant will thus call for scrutiny of the information that was
before the issuing officer
to determine, firstly, whether it
sufficiently disclosed a reasonable suspicion that an offence had
been committed, and secondly,
whether it authorises no more than is
strictly permitted by the statute.
[14] Questions that arise in
relation to the second issue will generally fall into either of two
different categories. The first
is whether the warrant is
sufficiently clear as to the acts that it permits. For where the
warrant is vague it follows that it
will not be possible to
demonstrate that it goes no further than is permitted by the statute.
If a warrant is clear in its terms
a second, and different, question
might arise, which is whether the acts that it permits go beyond what
is permitted by the statute.
If it does then the warrant is often
said to be ‘overbroad’ and will be invalid so far as it
purports to authorise
acts in excess of what the statute permits. A
warrant that is overbroad might, depending upon the extent of its
invalidity, be
set aside in whole, or the bad might be severed from
the good.
[15] Needless to say, a warrant
may be executed only in its terms. But it is important to bear in
mind that it is not open to a
person affected by a search to resort
to self-help to prevent the execution of a warrant, even if he or she
believes that its terms
are being exceeded – which is in
accordance with ordinary principles of law. As Langa CJ pointed out
in
Thint:
7
‘
While a
searched person may in certain cases collaborate and aid the
investigator . . . the legislation
8
envisages a unilateral exercise of power that is not dependent on
such collaboration.’
Thus it is ultimately the
searcher who must decide whether an article or article falls within
the terms of the warrant, though he
or she does so at the risk that
if it does not, his or her conduct might be found to have been
unlawful.
[16] I do not think the broad
principles that I have outlined are controversial. On the contrary
they seem to me to all be in accordance
with what was said in
Thint
.
It is with those broad principles in mind that I turn to the warrants
that were issued in this case.
The Cape Town Warrants
[17] The court below held that it
is an essential prerequisite for the validity of a warrant issued
under
s 21
of the
Criminal Procedure Act that
it specifies the
offence or offences in relation to which it has been issued. The Cape
Town warrants did not so specify the offence
or offences and on that
ground they were set aside.
[18] The question whether a
warrant was invalid for that reason alone arose in
Pullen
NO, Bartman NO & Orr NO v Waja
9
and the majority held that it was not. In that case a warrant,
addressed to ‘all police officers’, was issued under
s 49
of the Criminal Procedure Act 31 of 1917. The body of the warrant was
in the following terms:
‘
WHEREAS it
appears to me from information taken on oath that certain books and
documents and other papers the property of A.E. Waja
and/or M.A. Waja
& Co. are concealed in the house or premises situate at erf No.
1055 Rustenburg in occupation of M.A. Waja
& Co.
THESE are therefore
in His Majesty's name, to authorise and require you, with the
necessary and proper assistance, to enter the
said house or premises
in the day time and there diligently to search for the said books,
documents and papers, and if the same,
or any part thereof, shall be
found upon such search that you bring the books, documents and papers
found before the magistrate
of Rustenburg to be disposed of and dealt
with according to law.’
[19] The warrant was set aside.
The grounds upon which the majority did so were stated by Tindall J
at 851 (with whom Gey van Pittius
J concurred in a separate judgment)
as follows:
10
‘
This warrant
does not in any way identify the articles to be seized. It so happens
that Orr accompanied Bartman and assisted the
latter in securing the
books required. But in themselves the words “certain books and
documents and other papers of A.E.
Waja and/or M.A. Waja & Co”
are quite general and do not identify the things to be seized; the
words are so vague that
it is impossible to say what they include. It
was argued by Mr
Pirow
that Waja must have understood what books were wanted and the nature
of the offence in connection with which their seizure was
authorised.
But that is by no means clear, and even if he had an inkling on these
points, this cannot cure the defect in the warrant
itself.’
It seems that the majority might
have held the warrant to be valid if it had limited the articles to
be searched for and seized
by relating them to a specified offence
because in an earlier passage the learned judge said the following:
11
‘
I think a
search-warrant is valid if it either describes the specific thing or
things to be searched for or identifies them, as
in [
Seccombe
v Attorney-General
12
],
by reference to the offence.’
[20] De Waal JP agreed with the
order to be made but for a different reason. He concluded that it was
necessary in all cases for
a warrant to specify the offence that is
under investigation. He provided no rationale for why that should be
so but relied instead
upon what had been said in
Hertzfelder v
Attorney-General,
13
of which he said the following:
14
‘
Hertzfelder’s
case . . . is strong authority for the contention of
the respondent that the warrant was an illegal document. In
that case
the Court seems to have taken it as established law that where the
warrant for the search of anything does not specify
an offence
alleged to have been committed in relation to that thing the warrant
was bad, and therefore liable to be set aside.’
[21] The contention that the
failure to specify the offence, by itself, was fatal to the validity
of a warrant was dealt with by
Tindall J as follows:
15
‘
It seems to
me highly desirable that a search-warrant ought to mention the
alleged offence, and if I could find a satisfactory reason
for
holding that this Court has the power to lay down that mention of the
offence is essential to the validity of a search warrant
I should
willingly lay down such a rule. It is desirable that the person whose
premises are being invaded should know the reason
why; the
arrangements in favour of the desirability of such a practice are
obvious. But in my opinion there is nothing in sec. 49
which
justifies the Court in laying down such a rule. The use of the words
“any such thing” in the sentence in the
section which
speaks of the warrant as a “warrant directing a policeman to
search such premises and seize any such thing”
cannot be
construed to indicate anything more than that the warrant must
identify the things to be seized. The section does not
indicate in
any way that the articles must be identified by reference to the
offence. There may be cases where the prosecution
cannot identify the
articles except by reference to the offence as, for example, in
[
Seccombe
v Attorney-General
]
16
.
In such cases it is sufficient to identify the articles by reference
to the offence, as was done in the warrant in
Seccombe’s
case. But where a specific thing is mentioned in the warrant, as, for
instance, a bicycle with a specified number in the example
above
quoted, I fail to see on what ground this Court has jurisdiction to
say the warrant is bad. The Legislature might have prescribed
the
form of warrant in the statute as was done in the New Zealand Act,
but it preferred to leave the matter to be settled by rule
of court.
No rule of court having been framed I am at a loss to see on what
ground this Court can say that a search-warrant is
bad merely because
it fails to mention the alleged offence. It will be observed that in
regard to warrants of arrest the Act of
1917 alters Ordinance 1 of
1903 in important respects; the Act provides specifically that a
warrant of arrest must mention the
offence and gives the person
arrested the right to demand to see the warrant and read it. The
silence of the Act as to the contents
of a search warrant is
explained by the fact that the Legislature left the matter to be
regulated by rule of court.
I have come to the
conclusion, therefore, that the absence of mention of the offence in
the warrant is not fatal to its validity;
I think a search-warrant is
valid if it either describes the specific thing or things to be
searched for or identifies them, as
in
Seccombe’s
case, by reference to the offence. Further than that I do not think
the Court would be justified in going.’
[22] The court below made the
following observations relating to that passage:
17
‘
In our view,
the majority judgment in
Pullen
hardly represents as convincing an assertion of the common law
position as contended for by respondents. Significantly, there was
a
minority judgment by De Waal JP which referred to an earlier decision
of Innes CJ in
Hertzfelder
v Attorney General
1907
TS 403
in which the court had held that a warrant was bad if it had
not specified the crime alleged to have been committed by the
applicant.
Hertzfelder
supra
at 405. Whereas Tindall J had accepted that his approach contradicted
that of Innes CJ (at 850), he justified this difference by
stating:
“
In that
case, however counsel for the respondent admitted that the warrant
was invalid and the question was not argued.”
This conclusion
cannot be sustained after a careful reading of the judgment in
Hertzfelder
, a point made clearly by De Waal JP in his
minority judgment. As De Waal JP said at 864 about the relevant
legislation:
“
If the
legislature had intended that upon the passing of the 1917 Act the
rule as laid down in
Hertzfelder’s
case that a search
warrant was bad which had not specified a crime alleged to have been
committed, was no longer to be observed,
it would have manifested
that intention expressly and in clear language.”
Viewed accordingly
therefore, the precedent invoked by Mr Le Grange by way of the
majority judgment of Tindall J in
Pullen
was predicated on a very weak jurisprudential foundation.’
[23] Some care must be taken when
construing what was said in
Hertzfelder
because I do not think
it supports the observations of the court below. Tindall J was indeed
correct when he said that the point
had not been argued: the report
says as much. It records the following statement made by counsel for
the respondent: ‘I admit
that the warrant was not proper under
sec. 45 [of the Criminal Code – Ordinance 1 of 1903].’
[24] Moreover, it seems to me
that De Waal JP might possibly have misunderstood what was in issue
in
Hertzfelder.
That
case concerned a warrant to search a room in the Carlton Hotel. The
search revealed a leather trunk containing papers and it
was seized.
In finding the warrant to be invalid Innes CJ (Smith and Curlewis JJ
concurring) said the following, after remarking
that the warrant was
‘most irregular in form’:
18
‘
It does not
specify the crime alleged to have been committed, and it is in fact
quite unintelligible. It is on a printed form dealing
with stolen
property, and authorizing the proper officer to search premises and
seize such property. But all the words relating
to stolen property
have been struck out, and the warrant, as it stands, does not
disclose that any crime has been committed, and
is, as I have said,
quite unintelligible and informal.’
[25] De Waal JP seems to have
understood the warrant to have authorised, in terms, a search for the
leather trunk specifically.
19
It is not apparent from the judgment in
Hertzfelder
that that was so –
its terms do not appear from the judgment. But it is most unlikely
that a warrant that authorised a search
for and seizure of,
specifically a leather trunk, would have been described by Innes CJ
as ‘quite unintelligible’.
It seems more likely that the
warrant purported to authorise a general search of some kind –
much as the warrant did in
Pullen
–
and if that
was the case it is understandable that the court would have regarded
the warrant to be ‘unintelligible’
in the absence of a
reference to a specified offence (just as Tindall J did in
Pullen
).
Thus I think it is far from clear that the failure to specify an
offence, by itself, was considered by Innes CJ to be fatal to
the
validity of the warrant, as asserted by De Waal JP, notwithstanding
that Tindall J himself understood the decision in that
way.
[26] The court below also found
support for its view in the decision in
Powell
.
That case concerned a warrant that was issued under s 29 of the
National Prosecuting Act. The warrant did not specify the offence
that was under investigation. It seems not even to have been argued
that it was invalid for that reason alone nor was it set aside
on
that ground. The references by Cameron JA to the absence of a
specified offence were made in the context of whether the warrant
was
over broad – which was the ground upon which the warrant was
set aside, as it was in
Pullen
.
[27] Both the court below and
counsel for the respondents were on firmer ground, however, when they
relied on the decision in
Thint
.
That case, as with
Powell
,
concerned a warrant that had been issued under s 29 of the National
Prosecuting Act 32 of 1998. On that occasion the warrant did
specify
the offences that were under investigation. What was contentious in
that regard was only whether the offences had been
adequately
described.
20
[28] Although the question that
now confronts us was not strictly before the court for decision it
nonetheless laid down deliberately
the criteria for the validity of a
warrant issued under that section. Langa CJ expressed them as
follows:
21
‘
A s 29
warrant should state at least the following, in a manner that is
reasonably intelligible without recourse to external
sources of
information: the statutory provision in terms whereof it is issued;
to whom it is addressed; the powers it confers upon
the addressee;
the suspected offences that are under investigation; the premises to
be searched; and the classes of items that
are reasonably suspected
to be on or in that premises. It may therefore be said that the
warrant should itself define the scope
of the investigation and
authorised search in a reasonably intelligible manner.’
[29] Counsel for the appellant
reminded us, correctly, that the validity of a warrant will depend
upon the provisions of the particular
authorising statute, and that
Thint
laid down those requirements only in relation to the
statute that was there in issue. He sought to persuade us that there
is a
material distinction between that statute and the Criminal
Procedure Act that makes that requirement inapplicable in this case.
He pointed out that the National Prosecuting Authority Act was
designed for the investigation and prosecution of only a limited
class of offences. In those circumstances, so the submission went,
the warrant must specify the offence so as to demonstrate to
the
searched person that the investigative capacity of the searcher is
not being exceeded.
[30] Although the argument is
persuasive that was not the basis upon which the requirement was laid
down in
Thint
. And while it is correct that the validity of a
warrant must be tested against the particular statute under which it
is issued
there are nonetheless some criteria that are universal by
the very nature of a warrant. One is that the warrant must be
intelligible
– I understand the term to be used in
Powell
and Thint
to describe collectively the two requirements of a
warrant that I referred to earlier, namely, that its terms must be
neither vague
nor overbroad – and it was in that context that
the rule was laid down in
Thint
. That is apparent from the
passage I have cited and from other passages in the judgment.
[31] One might question why a
warrant is necessarily not intelligible in that sense if it fails to
specify the offence. There will
indeed be cases –
Pullen
was such a case – in which the terms of the warrant will not be
capable of being understood, or will be too broad, if the
offence is
not specified, but that is a matter for construction of the
particular warrant. But where a warrant authorises a search
for and
seizure of a definite item – an example is a specified letter:
the example given in
Pullen
was a specific bicycle –
then both the meaning and the scope of the warrant are precisely
defined, notwithstanding that the
suspected offence is not stated.
Indeed, the warrant in this case further illustrates the point.
Amongst the documents listed in
Annexure B are, for example, ‘notule
van vergaderings . . . ten opsigte
van . . . Eagles
Trust wat betrekking het op die
transaksies of onderhandelinge wat verband hou met die MV Madiba.’
On the face of it there
ought to be no difficulty identifying those
documents with relative certainty, and determining whether they fall
within the scope
of the statute, even though the offence is not
specified (whether the offensive parts are capable of being severed
from those parts
is a separate question) and many similar examples
appear throughout the warrant.
[32] But that notwithstanding,
the requirement that the offence must be specified was laid down
unequivocally and without qualification
in
Thint
in the context of the
intelligibility of the warrant, and in that respect I see no material
distinction between a warrant that is
issued under that statute and a
warrant that is issued under the Criminal Procedure Act.
[33] A court is bound to follow
the decisions of a more authoritative court, and for good reason, as
pointed out by Cameron JA in
True
Motives 84 (Pty) Ltd v Mahdi.
22
But so, too, is it
bound only to follow the ratio decidendi (the reason for the
decision) of that court, and not what it might say
along the way. The
rule in
Thint
might strictly be said not to form part of the reason for the
decision – in that it was not necessary to lay down that rule
for the decision in that case – but it is quite clear that it
was not merely a remark in passing but was intended as an
authoritative statement of the law. In the absence of a material
distinction between that case and this so far as that rule is
concerned I think we would be remiss if we were not to apply it while
that decision stands. For that reason I think that the court
below
was correct in finding that the warrants were invalid and the appeal
must fail.
The Bellville Warrant
[34] The Bellville warrant is not
open to attack on the same ground because it specified, in some
detail, the suspected offences
in relation to which it was issued.
The attack was directed instead to the scope of the warrant, which
was said by the respondents
to be ‘vague and overbroad’.
Other grounds of attack were raised initially but they were not
pursued before us.
[35] I observed earlier that
whether a warrant is vague, and whether it is over broad, are
distinct questions, though they might
collectively be described as
going to the ‘intelligibility’ of the warrant. On the
first question the enquiry is whether
the articles are capable of
being identified with reasonable certainty. It is only if that
question is answered in the affirmative
that the second question
arises – does a search for and seizure of those identifiable
articles exceed what is permitted by
the statute?
[36] The Bellville warrant listed
the articles to be searched for and seized in seven paragraphs. I do
not think it is necessary
to recite them. It is sufficient to say
that they include items such as bank statements, invoices,
correspondence and so on. I
see no difficulty determining what those
articles are and I do not think it can be said that the warrant is
vague. The real objection
is that the warrant is over broad.
[37] In each paragraph, other
than paragraph 5, the articles that were sought were expressly
limited to documents that relate to
the specified offences. Expressed
in those terms – as they were also expressed in
Thint
–
it seems to me that it cannot be said that the warrant authorises
more than is permitted by the Act.
[38] The documents listed in
paragraph 5, however, were not expressly stated to be related to the
specified offences. The court
below was of the view that once that
paragraph is read together with annexure C – which lists the
offences under investigation
– the target of the search becomes
apparent. On that basis it held that the warrant, including that
paragraph, was valid,
and I agree. In the context of the warrant as a
whole I do not think that the documents listed in that paragraph
could reasonably
be read as extending to documents that are not
related to the offence. I agree with the court below that the
Bellville warrant
cannot be faulted and the cross appeal must fail.
[39] The appeal is dismissed with
costs that include the costs of two counsel. The cross appeal is
dismissed with costs that include
the costs of two counsel.
_________________
R W NUGENT
JUDGE OF APPEAL
APPEARANCES:
For
appellant: R F van Rooyen SC
A
de V la Grange SC
Instructed
by:
The
State Attorney, Cape Town
The
State Attorney, Bloemfontein
For
respondent: A Katz SC
D
Simonsz
Instructed
by:
Carl van der Merwe & Ass c/o
Cornel Stander Attorneys, Cape Town
Webbers
Attorneys, Bloemfontein
1
2009 (1) SA 1
(CC) paras 222-224.
2
The judgment of the court below is reported as
Van der Merwe v
Additional Magistrate, Cape Town
2010 (1) SACR 470
(C).
3
More comprehensively the warrant recorded, by the marking of
applicable standard-form blocks, that there were reasonable grounds
to believe that the article concerned ‘(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 suspected 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 used in the commission
of an offence.’
4
The jurisdictional fact or facts that are necessary for the issue of
a warrant obviously vary from statute to statute but for
convenience
I confine myself to only one of the jurisdictional facts that is
usually to be found in such statutes.
5
2005 (5) SA 62
(SCA).
6
Para 50.
7
Para 143.
8
In that case the
National Prosecuting Authority Act 32 of 1998
, but
other legislation is usually to the same effect.
9
1929 TPD 838.
10
At 851.
11
At 850.
12
1919 TPD 270.
13
1907 TS 403.
14
At 863.
15
At 849-850.
16
1919 TPD 270.
17
Para 40.
18
At 405.
19
At 863: ‘[I]n that case . . . a definite
article was ordered to be seized, whereas in the case before
us . . . the search was [not] directed to a
specified article in the possession of the respondent’.
20
See para 170.
21
Para 159.
22
2009 (4) SA 153
(SCA) para 100.