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[2023] ZAECELLC 25
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N.A. Nonxuba Attorneys and Another v Minister of Police and Others (1323/2023) [2023] ZAECELLC 25 (12 September 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, EAST LONDON CIRCUIT COURT)
CASE NUMBER.:
1323/2023
In
the matter between:
N.A.
NONXUBA ATTORNEYS
First
Applicant
NOVELWANO
ALICIA NONXUBA
Second
Applicant
And
THE
MINISTER OF POLICE
First
Respondent
DIRECTORATE
FOR PRIORITY CRIME INVESTIGATION:
SERIOUS
COMMERCIAL CRIME INVESTIGATION
Second
Respondent
CAPTAIN
NEIL HOFFMAN
Third
Respondent
NAZIM
JOEMATH:
ADDITIONAL
MAGISTRATE EAST LONDON
Fourth
Respondent
THE
REGISTRAR OF THE EAST LONDON
HIGH
COURT
Fifth
Respondent
JUDGMENT
Beshe
J
[1]
This is Part A of a two-legged application
which has been brought on an urgent basis wherein the following
order
is sought:
“
1.1 The time
periods and forms of service be dispensed, and that PART A of the
matter be heard as one or urgent in terms of the
Uniform Court Rules,
Rule 6(12) as read with the practice manual of Honourable Court.
1.2 That the Second
and Third Respondents be directed to hand in the articles listed in
Annexure “NOM1” to the Registrar
of the above Honourable
Court for safe keeping, that the Registrar seal the articles pending
of the finalisation of PART B, and
the direction of the Court
thereon.
1.3 Cost on a punitive
scale against the Respondents jointly and severally the one to pay
the other to be absolved.”
NOM1 is an inventory list
containing a number of items that appear to be copies of documents
seized (hard copies) from second applicant’s
place.
The
Parties
[2]
First applicant is a firm of attorneys.
Second applicant is the sole director thereof. Second applicant’s
address is 2[…] O[…] W[…], Gonubie, East London.
The first respondent is the Minister of Police, care of The
State
Attorney, 17 Fleet Street, East London. The second respondent is The
Director of Priority Crime Investigation, care of Captain
Hoffman at
Old Allied Building, Buxton Street, East London. The third respondent
is Neil Hoffman a Captain in the South African
Police Services,
attached to the office of the second respondent situated at Old
Allied Building, Buxton Street, East London. The
fourth respondent is
Nazeem Joemath NO in his capacity as a Magistrate employed at the
East London Magistrates Court at 4 Buffalo
Street, East London. The
fifth respondent is The Registrar of East London High Court, herein
joined in its capacity of a functionary
no costs are sought against
this party.
[3]
The application is opposed by the first to
third respondents.
Applicants’
Case
[4]
Third respondent deposed to an affidavit in
support of an application for a search and seizure warrant
which was
issued on the basis thereof by the fourth respondent. The warrant was
issued in respect of premises of the second applicant’s
private
residence. In his affidavit, third respondent stated that he wished
to search for, and seize all digital media devices
which would
possibly have been used to create and store documents relevant to the
investigation of the trusts as well as client
files in respect of
payments received from Eastern Cape Department of Health (ECDOH). In
this regard, the court is referred to
third respondent’s
seven-page affidavit annexed to applicants’ papers as NAN1.
Applicants highlight the salient parts
of the affidavit in the
founding affidavit being
inter alia
that third respondent is
the investigation officer of a case pertaining to theft and money
laundering against a firm of attorneys,
Nonxuba Inc, in respect of
which second applicant is former director. Between the years 2014 and
2021, payments were made to the
said firm of attorneys by the
Department of Health, Eastern Cape as damages for medical negligence
in respect of thirty-seven claims.
Contrary to court orders directing
that trusts be registered in this regard, no trusts were registered
on behalf of the claimants
or where registered, this was delayed. The
balance standing in the trust account of Nonxuba Inc falls short of
the amounts paid
out in respect of trusts that have yet to been
registered. Third respondent wishes to search the premises in
question and seize
all digital media devices which could possibly
have been used to create and store documents relevant to the
investigation of the
trusts as well as client files and payments
received from Department of Health, Eastern Cape. The articles to be
seized are specified
in the affidavit.
[5]
It appears to be common cause that a search
warrant was issued by the fourth respondent on the 1 August
2023. The
said warrant is entitled “Search Warrant in terms of Section 29
read with section 25 of Cyber Crimes Act 19 of
2020. The validity of
the search warrant is impugned on the basis that the third
respondent’s affidavit (NIN1) does not contain
the
jurisdictional requirements for the issuing of a search warrant,
namely: The existence of a reasonable suspicion that a crime
has been
committed and the existence of reasonable grounds to believe that
objects connected with the offence may be found in the
premises. As
will appear from the fourth respondent’s affidavit referred to
earlier, the purpose of the search was to seize
digital media
devices. It is common cause that the articles that were seized were
hard copies of certain document. It however turns
out that unbeknown
to those who drew papers to launch this application, there was a
second warrant that was authorised in terms
of the Criminal Procedure
Act.
[6]
Applicants’ attack was initially
directed at NOM2 the search warrant that was issued in terms
of the
Cyber Crimes Act. The validity of the search warrant was impugned on
the basis as stated earlier that the jurisdictional
requirement for
the issuing of search warrants were not met. On the basis that the
presence thereof has not been made out in the
third respondent’s
affidavit in support of the issuing thereof – NAN1. It being
asserted that regarding the first requirement,
the evidence provided
by third respondents fell short of indicating that fraud, theft or
money laundering had been committed by
any person. Further that the
mere fact that trusts had not been registered is not sufficient to
show that an offence(s) has been
committed without regard to complete
files, business accounts etc. As far as the second requirement is
concerned, applicants assert
that there is no averment in third
respondent’s affidavit why he believes that the data sought to
be seized is on the said
premises., the premises being the home of
the second applicant.
[7]
Applicants also complained that the articles
removed from the premises were not provided for in the
search
warrant, that the search warrant was overbroad.
[8]
Another ground for asserting that the search
warrant was invalid is that the applicants’ right
to privacy
was infringed. Applicants are fearful that should the matter await
its turn on the normal roll, it can be months before
the matter is
heard and the respondents will continue to base their investigations
on inadmissible evidence and in the long run
that will amount to an
injustice. Not only to the applicants in that this will result in an
unfair trial, but that it will also
result in the state incurring
wasted costs by attempting to present tainted evidence.
First
to third respondents’ opposition
[9]
First to third respondents will be
collectively referred to as the respondents. Respondents raise the
point that the matter lacks urgency or if urgent same was
self-created given that the search was conducted on the 2 August
2023,
yet the court was only approached on an urgent basis on the 22
August 2023.
[10]
Respondents confirm the issuing of NOM1 on 1
August 2023 but also allude to a second search and seizure
warrant
marked Annexure A. this search warrant was issued in terms of the
Criminal Procedure Act. Respondents suggest that by failing
to
mention or deal with search warrant the applicants are attempting to
mislead the court. Further that articles comprising of
documents
relating to thirteen of thirty-seven claimants/beneficiaries in
respect of investigations that are underway, were seized
on the
strength of Annexure A. These included taxed bills of costs in
respect of the matter listed in Annexure NOM1 and NOM2. Furthermore,
that the articles fell within the definition contained in Section 20
of the Criminal Procedure Act in respect of the investigation
being
conducted. Third respondent asserts that the information provided to
fourth respondent satisfied the requirements for the
issuance of a
search warrant.
[11]
Unlike the search warrant that was issued in terms
of the Cyber Crimes Act NOM2, the one that was issued
in respect of
the Criminal Procedure Act is not accompanied by a separate
affidavit. The information required for the issuance
of a search
warrant is incorporated in the search warrant. The basis for seeking
to search the premises in question appear from
Annexure A. Briefly
stated that fraud and theft (General deficiency) offences to the tune
of R52 385 185.79 are being
investigated. Flowing from the
following:
Nonxuba Inc, a law firm
represented by Mr Nonxuba and second applicant, was the attorney of
record in respect of various medical
negligence claims against the
Eastern Cape Department of Health during the period 2014 to 2021.
Various amounts amounting to some
R500 000 000.00 were paid into
the trust account of the firm in question. In respect of each of the
plaintiffs, the court
had ordered that a trust be established by
Nonxuba Inc to administer the damages awards concerned which were
invariably on behalf
of injured minor children. The residual amount
of the award after client expenses and legal fees had been deducted
was to be paid
into the trust accounts in favour of the
beneficiaries. So far, only sixteen trusts have been registered. And
that an amount of
± R365 047 424.00 remains
uncounted for. After the crunching of more figures, it is asserted
that there is a general
deficiency of ± R52 000 000.00.
The criminal investigation is meant to follow the money trail
relating to the
deficiency. Further that the persons responsible for
the trust and business accounts of the Nonxuba Inc are Mr Nonxuba and
second
applicant who were directors of the firm. Further that the
articles capable of seizure which may afford evidence in the
suspected
commission of the offences as listed in Annexure A are at
the premises that were ultimately searched
viz
2[…]
O[…] W[…], Gonubie, East London or otherwise under the
control of the two aforementioned persons who
currently reside
therein. Items to be searched for are in respect of thirty-seven
beneficiaries are listed, including the names
of the beneficiaries.
[12]
It appears to be common cause that two crates of
documents listed in the inventory marked NOM1 in respect
of
beneficiaries or some of them were seized.
[13]
Respondents allege that if the order sought by the applicants is
granted, not only will the investigations
be prejudiced by the delay,
it is also not in the interest of justice that an investigation as to
what came of millions of tax
payers money destined for injured
beneficiaries be delayed.
Applicants’
replying affidavit
[14]
The replying affidavit was deposed to by Mr Enzo
Meyer of the applicants’ attorneys of record. His
affidavit was
mainly concerned with addressing the issue of urgency or lack thereof
and to a large extent with explaining why only
one search warrant was
dealt with in the founding affidavit. The explanation being that he
did not realise that third respondent
had forwarded him photographs
of copies of two different search warrants issued in respect of Cyber
Crimes Act and Criminal Procedure
Act, respectively. As well as the
fact that the urgency only arose as a result of third respondent’s
refusal to give an undertaking
not to use the documents concerned in
response to a letter by those representing the applicants delivered
on the 15 August 2023.
He also makes the point that the grounds for
impugning the validity of NOM2 apply with equal force in respect to
Annexure A to
the answering affidavit.
Parties’
submissions
[15]
Applicants contend that the respondents have not
shown that the requirement pertaining to the existence
of the
reasonable grounds to believe that objects connected with the
offences sought to be investigated may be found on the premises
intended to be searched. In response, respondents submit that both
jurisdictional requirements for the issue of a search warrant
were
met by the third respondent when he applied for the search warrant.
So, were the guidelines set out in Minister of Safety
and Security v
Van der Merwe
[1]
. They point out
that it is common cause that documents seized from the premises in
question contain those pertaining to thirteen
of thirty-seven claims
that are the subject of their investigations.
Discussion
[16]
It is court that will be dealing with Part B of
the application that will be required to make a pronouncement
on the
validity or otherwise of the search warrant concerned. On whether the
two jurisdictional requirements were met. Mine is
to determine
whether the applicants will suffer irreparable harm should the court
dealing with Part B of the application find that
the search warrant
is invalid. According to the applicants, the harm that they will
suffer is that the investigations will continue
based on inadmissibly
obtained evidence and thereby affect the fairness of the trial.
[17]
Respondents, whilst maintaining that the search
warrant was properly obtained, deprecate any delay in investigating
what happened to millions of rands meant for children who were
injured as a result of medical negligence, pending the determination
of Part B of the application.
[18]
It is trite that “
law-abiding
citizens of this country are deeply concerned about the scourge of
crime … … … Warrants issued
in terms of
Section 21 of the Criminal Procedure Act are important weapons
designed to help the police to carry out efficiently
their
constitutional mandate of, amongst others, preventing, combatting and
investigating crime”
.
[2]
The court in Van der Merwe’s (
supra
)
acknowledged that in the course of issuing search warrants the police
inevitably interfere with the equally important constitutional
rights
of individuals.
[19]
It is trite that unconstitutionally obtained
evidence is inadmissible during a trial. The exclusion of the
evidence will only occur later should criminal charges be preferred.
But the investigations would have been carried out based on
documents
that were obtained via an invalid search warrant. The fact that the
investigations are in all probability ongoing, may
require that
applicants’ rights be protected pending the determination of
Part B of the application. This in a bid to ensure
that, should the
applicants be successful in validating their rights, they will
receive effective relief. If indeed, the applicants
are able to show
that any one of the two jurisdictional requirements were not met by
the third respondent to justify the issuing
of search warrant, they
will be validated. In my view therefore, the balance of convenience
favours the applicants for the granting
of the interim relief sought.
Especially that the order sought is of a temporal nature and the
return of the seized documents to
the applicants is not sought at
this stage.
[20]
Accordingly, the application should in my view
succeed. To ameliorate the prejudice of the delay complained
of by
the respondents, I propose to set a time frame within which Part B
should be launched.
[21]
As far as costs are concerned, I am not aware of
any reason or conduct on the part of the respondents that
warrants a
punitive costs order. In my view, it will be appropriate that costs
be costs in the cause.
Order
it is ordered that:
1.
The time periods and forms of service be dispensed with and
that PART A of case 1323/23 be heard as one of urgency in terms of
the
Uniform Court Rules, Rule 6(12) as read with the practice manual
of the Honourable Court.
2.
That the Second and Third Respondents be and are hereby
directed to hand in articles listed in Annexure “NOM1” to
the
Fifth Respondent - Registrar of the above Honourable Court for
safekeeping, that the Registrar seals the articles pending the
finalisation
of PART B and the direction of the Court thereon.
3.
In order to facilitate the expedited resolution of PART B of
this application, the applicants are directed to launch proceedings
in respect of PART B within 20 days of this order.
4.
Applicants are granted leave to supplement their papers if so
advised for the hearing of PART B of the application.
5.
Costs to be cost in the cause.
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Applicants:
Adv:
E Kilian SC
Instructed
by:
ENZO
MEYERS ATTORNEYS
121
Devereux Avenue
Vincent
EAST
LONDON
Ref:
Mr Enzo Meyers
Tel.:
043 – 721 1109
For
the Respondents:
Adv:
M Simoyi
Instructed
by:
THE
STATE ATTORNEY – EAST LONDON
17
Fleet Street
EAST
LONDON
Ref:
501/23-P6 (Mr Isaacs)
Tel.:
043 – 706 5100
Date
Heard:
30
August 2023
Date
Reserved:
30
August 2023
Date
Delivered:
12
September 2023
[1]
2011
(2) SACR 301
CC at 38-39.
[2]
Minister
of Safety and Security v Van der Merwe
supra
at
312.