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[2010] ZASCA 134
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Sello v Grobler and Others (623/2009) [2010] ZASCA 134; 2011 (1) SACR 310 (SCA) (1 October 2010)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case
No: 623/2009
No Precedential Significance
In the matter between:
ABRAM SELLO
...............................................................
Appellant
and
INSPECTOR GROBLER
................................................
First
Respondent
INSPECTOR J CLAASEN
..............................................
Second
Respondent
MINISTER OF SAFETY &
SECURITY
.......................
Third
Respondent
NATIONAL DIRECTOR OF HEALTH
MEDICINE REGULATORY AFFAIRS,
INSPECTORATE & LAW
ENFORCEMENT
.............
Fourth
Respondent
Neutral citation: Sello v
Grobler
(623/09)
[2010] ZASCA 134
(1 October 2010)
Coram:
MPATI P, LEWIS,
PONNAN, CACHALIA JJA and K PILLAY AJA
Heard:
20 August 2010
Delivered: 1 October 2010
Summary:
Search and
seizure ─ unlawfulness admitted ─ whether appellant
entitled to return of all seized items.
___________________________________________________________
ORDER
On appeal from:
South
Gauteng High Court (Johannesburg) (Jajbhay J sitting as court of
first instance):
1 The appeal is upheld with
costs.
2 The order of the court below is
set aside and substituted with an order in the following terms:
‘
(a) The
respondents’ searches of the applicant’s pharmacy and
home on 8 July 2008 are declared unlawful.
The respondents’ are
directed forthwith to return to the applicant all items seized
pursuant to those unlawful searches
that the appellant may lawfully
possess.
The respondents’ are
ordered to pay the costs jointly and severally, the one paying the
other to be absolved.’
___________________________________________________________
JUDGMENT
K PILLAY AJA (Mpati P, Lewis,
Ponnan and Cachalia JJA concurring)
[1] The appellant, Abram Sello,
is a pharmacist and owner of Lake Field Pharmacy, situated at shop
23, Lakefield, Benoni, Gauteng.
[2] Towards the end of June 2008
the Organised Crime Unit of the South African Police Services, of
which the first and second respondents
are members, received
information from members of the Medicines Regulatory Affairs
Inspectorate (‘MRAI’) that the appellant
was suspected of
selling scheduled medicines and or substances without the necessary
prescriptions.
[3] Acting on that information on
8 July 2008, the first and second respondents, together with members
of the MRAI, decided to set
a trap at the appellant’s pharmacy
in accordance with the provisions of
s 252A
of the
Criminal Procedure
Act 51 of 1977
. In furtherance of the trap exercise a female
inspector, Heather Conradie, was given two marked one hundred rand
notes to purchase
Stilpain and Stilnox tablets. She proceeded to the
appellant’s pharmacy where she was assisted by Thobeka Gladys
Bambisa,
an employee of the appellant. Ms Bambisa supplied her with
those tablets against payment of the sum of R155 for the Stilnox and
R14 for the Stilpain tablets. The tablets were schedule five drugs
and despite the fact that they required a prescription were
sold by
Ms Bambisa without one. Moreover, Ms Bambisa, who was not a
pharmacist, was not permitted to dispense medication.
[4] The appellant was not in the
pharmacy when the transaction was concluded. Upon his arrival he was
informed of the trap and in
his presence his pharmacy was searched by
the police and inspectors of the MRAI. The police seized various
items including scheduled
medicines with blister strips and expiry
dates that had been removed. In a back room of the pharmacy a drum
containing Myprodol
capsules in a transparent plastic bag were found.
[5] Andrew Colin Brandon, a risk
officer, employed by Adcock Ingram Healthcare (Pty) Ltd, arrived at
the pharmacy. He identified
his company as the source of the
Myprodol. According to him the capsules are not sold in containers as
found in the appellant’s
pharmacy but rather, after being
processed, are placed in blue containers similar to the one
discovered in the backroom of the
pharmacy. Pholconcor tablets with
batch number 080331 and Ziak tablets with batch number 0714962 were
also found. William Daniel
Botha from Pharmaceutical Healthcare
Distributors identified these tablets as part of a batch which had
been stolen from their
warehouse. Other items such as computers and
the appellant’s laptop were seized. The appellant and his
employee, Ms Bambisa,
were then arrested. Thereafter his motor
vehicle which was parked outside the pharmacy was searched. His
identity book, cheque
books, personal documents, and his house, shop
and car keys were taken. A trip to his home followed. A search there
yielded more
tablets in a box, similar to the ones found in the
pharmacy. From his home R114 000 cash was taken.
[6] These common cause facts
provided a backdrop for an application launched by the appellant, in
the South Gauteng High Court,
for an order declaring the searches
carried out at the appellant’s home and pharmacy on 8 July 2008
unlawful and the forthwith
return of all items seized. The
application was dismissed by Jajbhay J with costs. Leave to appeal
was granted to this court.
[7] In his founding affidavit the
appellant alleged that the search and seizure operation were
conducted in violation of his ‘right
to privacy, his right to
trade freely and without a lawful basis’. In addition he
averred that he was at all times in ‘peaceful
and undisturbed
possession’ of all the items seized.
[8] It is not disputed that in
respect of the aforesaid searches the police acted without a warrant.
That is not in itself a ground
for finding that the searches and
seizures were unlawful. But before us counsel for the respondents
conceded that the searches
were unlawful. That was for two reasons.
First, although
s 22
of the
Criminal Procedure Act 51 of 1977
authorizes seizure without a warrant where a police official believes
that the delay occasioned by obtaining a warrant would defeat
the
object of the search, the police advanced no grounds for such a
belief. Second, the inspectors of the MRAI had not shown that
they
were authorized to conduct searches in terms of the Medicines and
Related Substances Control Act 101 of 1965. That concession
so, the
appellant contended, entitled him to the return of all the items
seized. As this issue was not fully ventilated on the
papers, the
matter was postponed to enable the legal representatives, after
fuller consultation with the parties, to file a schedule
of those
items that they agreed could be returned to the appellant. We have
since been advised that no consensus could be reached
between the
parties.
[9] It is common cause that
criminal proceedings against the appellant are still pending at which
some of the seized items may be
required by the State as evidence. It
was not disputed that amongst the items seized were allegedly stolen
items and expired medication,
some without proper identifying
details. Since the seizure certain other drugs have also expired. All
of those items obviously
cannot be returned to the appellant.
[10] The appellant does not in
his founding affidavit deal with his lawful entitlement to have
possessed all the items seized nor
does he allege what exactly he is
lawfully entitled to have returned. Rather he contents himself with
the allegation that he was
in peaceful and undisturbed possession of
the seized items. That would have sufficed had this been a spoliation
application. But
it is not. It follows that we can only order the
return of those items that the appellant is lawfully entitled to
possess.
[11] In the circumstances the
following order is made:
1 The appeal is upheld with
costs.
2 The order of the court below is
set aside and substituted with an order in the following terms:
‘
(a) The
respondents’ searches of the applicant’s pharmacy and
home on 8 July 2008 are declared unlawful.
(b) The respondents’ are
directed forthwith to return to the applicant all items seized
pursuant to those unlawful searches
that the appellant may lawfully
possess.
(b) The respondents’ are
ordered to pay the costs jointly and severally, the one paying the
other to be absolved.’
___________________
K Pillay
Acting
Judge of Appeal
APPEARANCES
APPELLANT: Z Omar of Zehir Omar
Attorneys, Springs
EG Cooper Majiedt Inc,
Bloemfontein
RESPONDENTS: TF Mathibedi (with
him TK Manyage)
Instructed by State Attorneys,
Johannesburg
State Attorneys, Bloemfontein