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[2011] ZASCA 26
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Polonyfis v Minister of Police and Others (64/10) [2011] ZASCA 26; 2012 (1) SACR 57 (SCA) (18 March 2011)
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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 64/10
In
the matter between:
ELEFTERIOS POLONYFIS
.............................................................................
Appellant
v
THE MINISTER OF POLICE
..............................................................
First
Respondent
INSPECTOR P I VAN RENSBURG NO
........................................
Second
Respondent
CONSTABLE J STRYDOM NO
........................................................
Third
Respondent
INSPECTOR BOOYSEN NO
..........................................................
Fourth
Respondent
CONSTABLE MOLELEKOA NO
........................................................
Fifth
Respondent
CONSTABLE MARKGRAAFF NO
....................................................
Sixth
Respondent
THE MAGISTRATE, COLESBERG NO
.......................................
Seventh
Respondent
INSPECTOR MOUTON NO
...............................................................
Eight
Respondent
CONSTABLE PETERS NO
...............................................................
Ninth
Respondent
CONSTABLE MPHULANYAE NO
...................................................
Tenth
Respondent
INSPECTOR MATSHEBE NO
.....................................................
Eleventh
Respondent
CONSTABLE BARNS NO
.............................................................
Twelfth
Respondent
THE MAGISTRATE, DE AAR NO
............................................
Thirteenth
Respondent
Neutral citation:
Polonyfis
v The Minister of Police
(64/2010)
[2011] ZASCA 26
(18 March
2011)
Coram:
Brand, Maya, Cachalia,
Shongwe JJA and Petse AJA
Heard:
24 February 2011
Delivered: 18 March 2011
Summary:
Search and seizure
under
ss 20
and
21
of the
Criminal Procedure Act 51 of 1977
discussed
– The execution of a warrant will only be set aside if there is
an abuse of power or a ‘gross violation’
of a person’s
rights.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
Northern Cape
High Court, Kimberley (Lacock J sitting as court of first instance).
The following order is made:
The appeal is dismissed with costs.
________________________________________________________________
JUDGMENT
________________________________________________________________
CACHALIA JA (Brand, Maya, Shongwe JJA,
Petse AJA concurring):
[1] This is an appeal against a
judgment of Northern Cape High Court (Lacock J) dismissing an
application by the appellant for an
order to set aside a search
warrant issued by a Colesberg magistrate.
[2] These are the facts. The appellant
was the owner of a business that operated under the name ‘The
Entertainment Centre’
at premises in the sleepy little Karoo
town of Colesberg. It was the only business of its kind in the town.
On 1 December 2006,
at the request of members of the SAPS, the
magistrate, who is the seventh respondent, issued the search warrant
– with which
we are concerned in this appeal – under s 21
of the Criminal Procedure Act 51 of 1977 (the Act). The warrant reads
as follows:
‘
SUID-AFRIKAANSE
POLISIEDIENS
VISENTERINGSLASBRIEF
Artikel
20, 21 en 25 van Strafproseswet, 1977 (Wet No 51 van 1977)
Aan:
Kst Strydom Kst Janse van Rensburg
Insp
Booysen Kst Molelekoa
Kst
Markgraaff
(Rang,
naam en werksadres van lede wat deursoeking gaan uitvoer)
en
enige ander lid van die Suid-Afrikaanse Polisiediens wat behulpsaam
kan wees met die visentering en beslaglegging.
Dit
blyk aan my uit inligting onder eed, dat redelike gronde bestaan om
te glo dat daar binne
Die
Landdrosdistrik van Colesberg voorwerpe is, soos wat in Aanhangsel
“A” hierby aangeheg, beskryf is, en wat –
*(a)
op redelike gronde vermoed word betrokke te wees by die vermeende
pleging van;
*(b)
tot bewus kan strek van die vermelde pleging van; of
*(c)
op redelike gronde vermoed word bestem te wees om gebruik te word by
die pleging van;
die
misdryf(we), synde onwettige dobbelary onder Artikel 81(1)(a) van die
Noord Kaap dobbel en Wedren Wet 1996 (nr 5/1996) en dat
ek redelike
gronde het om te vermoed dat hierdie voorwerpe
in
besit, of onder die beheer van
.............................................................................
………………………………………………………
.(vermeld
naam en persoon(e) is;
op
of by ‘n perseel, te wete Kerkstraat Hall Entertainment Centre
(beskryf perseel)
U
word hierby gemagtig om gedurende die dag/
nag
die
geïdentifiseerde –
persoon(e)
te visenteer
perseel
te betree en te deursoek en om enige persoon(e) op of by daardie
perseel te visenteer,
en
op die voorwerp(e) wat in Aanhangsel “A” beskryf is,
beslag te lê, wat gedurende die deursoeking gebind word
en om
daaroor te beskik ooreenkomstig artikel 30 van die Strafproseswet.
Gegee
onder my hand te Colesberg op hierdie dag van 1 Desember 2006 (jaar).
Volle
name: EDWARD WILLIAM SCHON
Ampstitel:
Magistrate/Landdros
Landdrosdistrik:
COLESBERG’
[3] The application for the warrant
was supported by an affidavit, referred to in the warrant as
‘Aanhangsel “A”’,
which the investigating
officer had deposed to. The relevant portions of the affidavit read:
‘
2.
Ek
het gedurende 2006 op ‘n navraag gewerk ten opsigte van
onwettige dobbel persele. Inligting is ingesamel ten opsigte van
die
bedrywighede van die persele in die Bo-Karoo.
4.
Te
Colesberg is Entertainment Centre geleë in die winkel sentrum
Hall wat in Kerkstraat is by die perseel is die modus operandi
presies soos op De Aar. Die geld word by die toonbank betaal en weer
word speel munte wat die masjiene werk aan jou gegee indien
u enige
wennings maak word die lesing neergeskryf en uitbetaal by die
toonbank. Beskik oor geen lisensie nie 38 masjiene.
5.
In
(die) geval is aansoek gedoen vir 252A en sal van lokvinke gebruik
gemaak word op 06/12/02 om dobbel te kan bewys op alle gelde
en
masjiene sal beslag gelê word.’
[4] The following day, on 2 December,
the SAPS mounted an undercover operation to gather evidence of
suspected gambling. A SAPS
member entered the premises described in
the warrant and exchanged a R10 and a R20 note at the counter in
return for which he was
given 60 tokens. He used the tokens to play
on a machine known as a ‘one arm bandit’. The particular
machine does not
pay out cash amounts but registers winnings as
‘credits’ that are redeemable for cash. The member’s
endeavours
yielded 35 credits for which he was paid an amount of
R17.50 in cash. He then left the premises and reported to his
superiors.
[5] Armed with this information and
the warrant, Inspector Booysen, who is the fourth respondent and one
of the officers mentioned
in the warrant, entered the premises later
that day. He was accompanied by four other police officers, the
second, third, fifth
and sixth respondents. He read the content of
the warrant to the manager and handed a copy of it – without
the affidavit
– to him. He then proceeded to execute the
warrant by seizing cash in an amount of R15 162.30, gambling
machines, a
coin counting machine, a scale used for weighing tokens,
tokens each worth fifty cents, documents, receipt books, keys,
ashtrays,
chairs and some other smaller items.
[6] While conducting the search,
Booysen asked the manager for his identification document. He
answered that it was in his hotel
room, which was some distance from
the premises. Booysen then escorted him there to find the document.
When they entered the room,
Booysen noticed a black book. He enquired
from the manager what information it contained. The manager replied
that it contained
telephone numbers. Booysen asked him who his
employer was. The manager was uncooperative and replied that he did
not know. Booysen
then took possession of the book in the hope that
he may be able to obtain the employer’s contact details there.
They then
returned to the business premises and found the appellant’s
attorney standing outside with the other police officers.
[7] They entered the premises and
Booysen exhibited the warrant to the attorney – again without
the affidavit. It bears mentioning
that Booysen had the affidavit in
his possession throughout the search and seizure operation. The
police officers then left with
the items that they had seized. The
appellant initially sought the return of all these items. The high
court, by consent, granted
an order for the return of all the
articles, except the money, tokens and gambling machines. The
appellant complains that the high
court ought also to have ordered
that the remaining articles be returned.
[8] The appellant attacks the
lawfulness of the search and seizure operation on four grounds:
first, because the warrant did not
indicate which sub-section of s 20
of the Act was applicable to the search; secondly, for the reason
that the address of the premises
to be searched was vaguely described
in the warrant; thirdly, that Booysen’s failure to exhibit the
affidavit, when the warrant
was executed rendered the search
unlawful, and finally, that the execution of the warrant was unlawful
because the SAPS seized
some things that were not mentioned in the
warrant.
[9] Before I deal
with each of these contentions it is worth referring to some of the
broad principles applicable to search and
seizure warrants that
Nugent JA recently restated in
Minister
of Safety and Security v Van Der Merwe
:
1
‘
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.
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.
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, firstly, 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.
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/s, and thus they or it 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.
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 & others v Van der Merwe NO
& others
– 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:
“
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.’ ”
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.
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.
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
:
“
While
a searched person may in certain cases collaborate and aid the
investigator . . . the legislation 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
articles fall within the terms of the warrant, though he
or she does
so at the risk that, if not, his or her conduct might be found to
have been unlawful.’
(Footnotes omitted.)
[10] Bearing these
principles in mind I turn to consider the first of the appellant’s
complaints – that the warrant
is invalid because the learned
magistrate failed to specify which sub-section of s 20 is applicable
to the articles that may be
seized.
2
I did not
understand the appellant to contend that a warrant would in and of
itself be invalid if it purported to authorise the
seizure of
articles under all three sub-sections. This must be so because the
jurisdictional facts necessary for the issue of a
single warrant may
be found in all three sub-sections.
3
In other words an
article may be ‘concerned in the commission of an offence’,
‘may afford evidence of the commission
of an offence’ and
also may ‘on reasonable grounds believed to be intended to be
used in the commission of an offence’.
Indeed this would
frequently be the case – particularly because the sections are
couched in general terms and are almost
impossible to delineate.
[11] The appellant’s real
objection to the warrant is that the information that was placed
before the magistrate did not justify
his using all three
sub-sections. Mr Jagga, who appeared for the appellant,
contended that from the magistrate’s reasons
it is apparent
that he only extended the warrant to cover all the sub-sections so as
to couch the warrant in terms that are as
wide as possible. The
warrant was therefore over-broad, and for that reason invalid.
[12] The contention does not bear
scrutiny. The magistrate stated his reasons for issuing the warrant
in the terms he did as follows:
‘
7.1
Ek ontken dat ek nie my aandag aan die aangeleentheid spandeer het
alvorens ek die lasbrief onderteken en uitgereik het nie.
Ek het juis
nie enige van (a), (b) of (c) deurgehaal nie, aangesien ek dit nodig
gevind het om die bevoegdhede soos in aldrie vervat,
intakt te hou en
nie die Polisie se magte onnodig te beperk nie.
7.2
Nadat ek die verklaring deurgelees het, was ek oortuig dat daar
redelike gronde bestaan om te glo dat daar ‘n misdryf
op die
perseel gepleeg word.
7.3
Dit was vir my duidelik dat die geld, masjiene en speelmunte
kwalifiseer in terme van (a), (b) en (c) en derhalwe het ek nie
een
van die drie deurgehaal nie.’
[13] It is clear that the
authorisation was sought to search the premises and seize articles
that bear some relationship to illegal
gambling on the premises. A
gambling machine, for example, which is one of the articles we are
concerned with in this case, may
be concerned in the commission of
the offence of illegal gambling, afford evidence of the commission of
that offence and reasonably
be used in the commission of further such
offences. In other words the three sub-sections would all apply.
Similarly, as the magistrate
said, money and tokens could notionally
also fall into all three categories. The magistrate, therefore,
correctly did not limit
the warrant to only one of the sub-sections.
[14] I turn to the
appellant’s second ground of attack; that the inaccurate
description of the address in the warrant rendered
it invalid. The
warrant describes the premises as
‘
Kerkstraat,
Hall Entertainment Centre’
.
The correct
description of the premises and its address is, however,
‘
The
Entertainment Center, shop 10, The Mall, 72 Church Street,
Colesberg’
.
The affidavit prepared for the purpose of obtaining the warrant
contains the following description:
‘
Te
Colesberg is Entertainment Centre geleë in die winkel sentrum
Hall wat in Kerkstraat is’
.
It appears that the
word
‘
Hall’
was
erroneously used instead of
‘
the
Mall’
.
[15] Mr Jagga,
submitted that the description of the property must be ascertained
only by reference to the warrant and not the affidavit,
which, as I
have mentioned, was not attached to the warrant when it was executed.
On this basis it is contended that the description
of the address on
the face of the warrant does not meet the strict requirements of the
test that was adopted by Gura AJ in
Sarel
Blaauw v The Chairperson of the North West Gambling Board &
others.
4
There the court was
persuaded, on the basis of Canadian authority,
5
that South African
law requires a warrant:
‘
(To)
identify a physical location for the search to take place . . . The
description of the place to be searched should be precise
enough to
allow someone unfamiliar with the investigation to identify the
location to be searched from the warrant alone . . .
the address or
described place must be particular and accurate. For example, if the
warrant outlines the wrong address, the search
and seizure are viewed
as warrantless.’
(Ellipses
added.)
[16] For present
purposes it is not necessary to consider this authority, except to
the limited extent that it is relevant in this
case. The starting
point must always be to ask what the South African law is. For this
we must look to s 21(2) of the Act, which
says that a warrant shall
authorise a police official ‘to enter and search any premises
identified in the warrant’.
The section means no more than that
the warrant should intelligibly describe the premises to be searched
so that the official who
is authorised to conduct the search is able
to identify it. Absolute perfection in description is not required –
not even
in the United States where the Constitution’s Fourth
Amendment provides in terms that no warrant shall issue except those
‘particularly describing the place to be searched’.
6
US courts have thus
held that ‘it is enough if the description is such that the
officer with the search warrant can, with
reasonable effort ascertain
and identify the place intended’.
7
In a similar vein,
Canadian courts have emphasised that the substance of the warrant
must be looked at to give effect to it.
8
Thus a technically
wrong address does not invalidate a warrant if it otherwise describes
the premises with sufficient particularity
so that the police can
ascertain and identify the place to be searched.
9
[17] Viewed in this
light the warrant with which we are concerned – even without
the affidavit – met the requirements
of s 21 of the Act. The
‘Entertainment Centre’ was the only one of its kind on
‘Kerkstraat’ and in Colesberg.
The police officers
executing the warrant knew the premises and were able to locate it
without any difficulty. I should add that,
Sarel
Blaauw
,
the case on which the appellant relies, does not support him. There
the learned judge correctly said that if the description of
the
premises is not accurate, he would nevertheless uphold a warrant if
the search was conducted at the correct address.
10
There is therefore
no substance in this contention.
[18] I turn to the appellant’s
third complaint; that the absence of the affidavit when the SAPS
executed the warrant invalidated
the search. As I understand the
complaint it is that because Booysen did not hand over the affidavit
to the manager when he gave
him the warrant, the warrant was
incomplete and for this reason its execution was unlawful.
[19] Section 21(4)
of the Act requires a police officer executing a warrant to ‘
after
such execution, upon demand of any person whose rights in respect of
any search or article seized under the warrant have been
affected,
hand him a copy of the warrant’.
The
reason that the officer must, on demand hand a copy of the warrant,
only after execution is, as Nugent JA points out in the
passage
quoted above, because the search and seizure process is a unilateral
exercise that is not dependent upon the cooperation
of the person who
is in charge of the property that is being searched. And it is for
the officer conducting the search to decide
whether or not an item to
be seized falls within the terms of the warrant. After the search a
copy of the warrant and any document
referred to in it must –
on demand – be handed to the person in charge who may then
decide whether or not to challenge
the validity of the warrant,
either because it was unlawfully issued or unlawfully executed.
[20] Inspector Booysen read the
contents of the warrant to the manager and handed a copy of it to
him, albeit without the affidavit.
The manager did not ‘demand’
a copy of the affidavit, even though the warrant referred to it.
Neither did the appellant’s
attorney. They could have done so
at any stage after the execution of the search when they must have
realised that they had not
received a copy of the affidavit. They
elected not to do so for reasons only they are aware of. Booysen says
pertinently that it
was an oversight on his part not to have handed a
copy of the document to the manager and that he would have handed a
copy to him
if he had asked for it because he had the document in his
possession at the time of the search. There is therefore no merit in
this complaint either.
[21] I turn to the
appellant’s fourth and final contention – that the manner
of execution of the warrant was unlawful
because the executing
officers seized not only money, tokens, and machines, but they also
took chairs, ashtrays and documents of
whatever nature, including
documents from the manager’s hotel room. The validity of the
whole search was therefore tainted.
For this rather novel proposition
Mr Jagga relied on this court’s judgment in
Pretoria
Portland Cement Company Limited & another v The Competition
Commission & others
11
where the court
held that where the executing authority abuses its power in a manner
that involves a gross violation of a person’s
right to privacy
the entire search and seizure process may be set aside.
12
The court qualified
this by saying that an unlawful execution will not by itself
inevitably taint a warrant that is itself regular.
13
[22] The search warrant authorised
only the seizure of machines, money and tokens. The SAPS, however,
seized articles that the warrant
did not mention. And it was not able
to justify the seizure of the other articles on any other ground. The
high court, therefore,
correctly ordered the return of all those
items not mentioned in the warrant.
[23] But it does not mean that because
the execution of the warrant went beyond its strict terms that the
entire search was tainted.
I do not think that the behaviour or
conduct of the police amounted to, in
Pretoria Portland’s
formulation, either an ‘abuse of power’ or ‘gross
violation’ of the appellant’s rights. The seizure
simply
went beyond the ambit of the warrant and the appropriate remedy for
this was, as the high court ordered, the return of those
articles
that were seized but not authorised by the warrant.
[24] In my view, the court below
correctly dismissed all the appellant’s contentions. In the
result the appeal is dismissed
with costs.
___________
A CACHALIA
JUDGE OF APPEAL
APPEARANCES
APPELLANTS: N Jagga
Instructed by Vardakos Attorneys,
Vereeniging
Honey & Partners, Bloemfontein
RESPONDENT: W Coetzee
(1
st
– 6
th
and 8
th
) Instructed by The State Attorney, Kimberley
(7
th
) The Magistrate,
Colesberg NO, Colesberg
(13
th
) The Magistrate, De
Aar NO, De Aar
The State Attorney, Bloemfontein
1
[2010]
ZASCA 101
(7 September
2010); 2011 (1) SACR 211
(SCA) paras 8-15.
2
Section
20: ‘State may seize certain articles
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.
3
To
the extent that it may be suggested that two provincial divisions
have held that it is not permissible for a search warrant
to be
issued to cover the circumstances in all three sub-sections, I
respectfully disagree. See
Fiona Henning v The Minister of Public
Safety and Security
Case No 22157/2003 paras 23 and 24;
Sarel
Blaauw v The Chairperson of the North West Gambling Board &
others
Case No 940/04 paras 13 and 14.
4
Case
no 949/04 (BPD) para 16.
5
Scott
C Hutchison
et al Search
and Seizure Law in Canada
vol
2 at 16-30 and 16-31
.
6
Wayne
R LaFave & Jerold H Israel
Criminal Procedure
1985 p 135.
7
Steele
v United States No 1
[1925] USSC 115
;
267 US 498
,
45 SCt 414
,
69 LEd 757
(1925).
8
R
v Silverstone
66 CCC (3 rd) 125 paras 61-64.
9
R
c Charles
2010 QCCQ 9178
(Can LII) para 37.
10
n
4 para 17.
11
2003
(2) SA 385
(SCA).
12
Ibid
para 71 and 73.
13
Ibid
para 73I-J.