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[2011] ZASCA 134
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Minister of Safety and Security and Others v Mohamed and Another (598/10) [2011] ZASCA 134; [2012] 1 All SA 35 (SCA); 2012 (1) SACR 321 (SCA) (21 September 2011)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 598/10
In
the matter between:
Minister
of Safety and Security
…................................................................
First
Appellant
Superintendent
Noel Graham Zeeman
…...............................................
Second
Appellant
Paul
Christiaan Louw NO
….........................................................................
Third
Appellant
and
Mustafa
Mohamed
….................................................................................
First
Respondent
Omar
Hartley
….....................................................................................
Second
Respondent
Neutral
citation:
Minister of Safety & Security v Mustafa Mohamed
(598/10)
[2011] ZASCA 134
(21 September 2011)
Coram:
NAVSA,
HEHER, CACHALIA, SNYDERS JJA AND PLASKET AJA
Heard:
26
August 2011
Delivered: 21
September 2011
Summary:
Validity of warrant – ss 20 and 21 of
Criminal Procedure Act 51
of 1977
– grounds of appeal not extended.
ORDER
On appeal from:
Western Cape High Court (Cape Town) ( Louw, Moosa and Allie JJ
sitting as court of appeal):
1 The appeal is upheld
with costs, including, in respect of the first and second appellants,
the costs of two counsel;
2 The order of the court
below is set aside and replaced by the following:
‘
(a) The
application by the third appellant to lead further evidence is
allowed with costs;
(b) The appeal is upheld
with costs;
(c) The order of the
court below is set aside and replaced by the following:
“
The application is
dismissed with costs.”’
____________________________________________________________________
JUDGMENT
____________________________________________________________________
SNYDERS JA (Navsa, Heher,
Cachalia JJA and Plasket AJA concurring)
[1] This matter commenced
in the Western Cape High Court, Cape Town (Samela AJ sitting as court
of first instance) and proceeded
on appeal to the full court of that
division (Louw, Moosa and Allie JJ) with the leave of the former
court. The full court was
split in their decision on appeal, Louw J
being the minority. This court gave special leave to appeal to it.
[2] The first appellant
is the Minister of Safety and Security (the Minister). The second
appellant, Superintendent Zeeman (Zeeman),
was at all relevant times
in the employ of the Minister and acted in that capacity. The third
appellant is Magistrate Louw (the
Magistrate) in his official
capacity. The first and second respondents, Messrs Mohamed and
Hartley, occupied premises where Zeeman
conducted a search and made
seizures in terms of a warrant granted by the Magistrate. The
respondents applied to the court of first
instance for an order
setting aside the warrant and for the return of all the items seized.
They were granted such an order. On
appeal the majority decision in
the court a quo, by and large, confirmed that order, but for very
different reasons.
[3] On 24 January 2008
Zeeman applied for a search warrant in terms of ss 20 and 21(1) of
the Criminal Procedure Act 51 of 1977
(the Act). The Magistrate
granted a warrant on the strength of information that was placed
before him. On 25 January 2008 Zeeman
and several of his colleagues
went to the premises identified in the warrant and executed the
warrant. The first respondent lived
at 16 Axminster Street,
Muizenberg, and was at home when the warrant was executed. The second
respondent and his family lived at
adjacent premises, 16A Axminster
Street, Muizenberg, and were also at home when the warrant was
executed. It is common cause that
a large number of items were found
and seized at 16 Axminster Street. Nothing was found or seized at 16A
Axminster Street. The
basis for the second respondent’s
participation in the proceedings has never received attention and it
remains dubious. Be
that as it may, it was this experience that
motivated them to approach the court of first instance for an order
that the ‘searches
and seizures . . . were unlawful’ and
for the ‘setting aside [of] the search warrants and directing
that all objects/items
seized from [their] homes during the raids
carried out on the 25
th
January 2008 be restored
forthwith to [them]’.
1
[4] The respondents
raised several grounds for their attack on the validity of the
warrant. Those grounds can be summarised as follows:
There was no ‘credible
information that would give rise to the reasonable suspicion’
required by the Act;
Their rights to silence
and rights to an attorney were not explained to them, nor were they
informed that anything they said might
be held against them;
The appellants are
guilty of ‘oppressive conduct’ as the application for
the warrant was withheld from them;
No allegations were made
in the proceedings before the Magistrate justifying the ex parte
nature of the proceedings before him;
The Minister and Zeeman
failed to disclose material information to the Magistrate namely
that the respondents had no previous
convictions;
The Magistrate did not
apply his mind when he granted the warrant;
The warrant was issued
in overly broad terms and there is no rational connection between
the wide terms of the warrant and the
grounds for the warrant;
No safeguards were built
into the warrant as is usually the case in Anton Piller orders.
[5] The vague nature and
superficiality of most of these grounds probably contributed to the
reason why they were not pursued before
the court of first instance.
A completely different point, not adumbrated in any of the
affidavits, arose before Samela AJ.
[6] By the time the
matter came before Samela AJ nobody had included a record of the
proceedings before the Magistrate in the papers.
The Minister and
Zeeman placed before the court, under cover of a practice note, a
copy of the affidavit by the latter that served
before the
Magistrate. Although the essence of the allegations made in that
affidavit was repeated by Zeeman in the answering affidavit,
it was
not attached to the papers because Zeeman alleged that it contained
sensitive information that would adversely affect his
investigation
if made public. The copy sought to be introduced was unsigned and
unattested. Thus the point arose that there was
no compliance with s
21(1) of the Act because what served before the Magistrate was not
‘information on oath’. The
Minister and Zeeman then
tendered what was foreshadowed in the answering affidavit, namely, to
make the original affidavit available
to Samela AJ. This step was
objected to by the respondents and refused by the learned judge.
[7] The Magistrate stated
on oath, in an affidavit filed as part of the Minister’s and
Zeeman’s case, that he granted
the warrant in terms of the
provisions of ss 20 and 21(1) after having had regard to an affidavit
placed before him, deposed to
by Zeeman on 24 January 2008. Similarly
Zeeman stated on oath that he placed an affidavit before the
Magistrate in order to obtain
the relevant warrant. None of these
factual allegations was contested by the respondents. By ignoring
these allegations and not
having regard to the best evidence
available the court of first instance reached the extraordinary
factual conclusion that the
Magistrate ‘based his belief on a
document which he mistakenly believed to be an affidavit’, that
it was not proper
for him to have granted the warrant and that he
acted contrary to the provisions of the enabling statute.
2
[8] The findings by the
court of first instance placed the Magistrate, who up to that stage
had not opposed the relief claimed,
in an invidious position.
Findings of fact had been made in relation to his professional
conduct which had negative implications
for him and were contrary to
the truth. This necessitated that the Magistrate join the fray and,
together with the Minister and
Zeeman, seek leave from the court of
first instance to appeal its decision.
[9] The leave that was
granted to appeal to the court a quo was expressed in the following
terms:
‘
However, I wish to make this
very clear that in as far as the so-called affidavit is concerned I
still believe that it was not an
affidavit but a document. However
another Court might come to a different conclusion, and on that basis
alone, therefore, I will
GRANT
THE LEAVE TO APPEAL TO THE FULL BENCH OF THIS DIVISION
and
the costs will be costs in the appeal.’
[10] When the matter
served before the court a quo, the Magistrate brought an application
to lead further evidence being ‘a
copy of the affidavit deposed
to by Noel Zeeman, the second appellant, . . . (with sensitive
details likely to compromise or jeopardize
the relevant investigation
being expunged from it)’ which had supported the application to
him for the warrant. The full
court rightly accepted the document as
one properly deposed to and attested. The issue that was on appeal
ought rightly to have
been considered to be at an end. The
respondents pursued some arguments in opposition to the appeal, but
none of them was upheld.
There was no cross-appeal by them.
[11] Curiously, Louw J,
who concluded that the appeal had to be upheld with
costs, was in the minority. Moosa J, with Allie J concurring,
dismissed the
appeal after adopting a course that is explained in the
judgment as follows:
‘
During the hearing of the
matter in this court, counsel for the parties were asked what would
happen to the other issues raised
by the First Respondent in his
papers, but which were not decided, should this court uphold the
appeal on the main ground in question.
They were specifically
referred to the challenge that the warrant was over-broad. It appears
that counsel were taken by surprise
as they had not prepared for such
eventuality. The court indicated to them that they could submit
further heads of argument in
respect of those issues, but they did
not take up the offer. Adv Joubert SC, for the First and Second
Appellant, submitted that
there was no merit in the other issues and
more particularly said that the warrant was not overbroad. Adv Jaga,
for the Third Appellant,
supported Adv Joubert in those submissions.
Mr Omar, for the Respondents, was somewhat ambivalent. He indicated
that the matter
ought to be referred back to the court
a
quo
, but at the same time
said that the Respondents would like to see that the matter is
brought to finality as soon as possible.’
[12] I need to interrupt
myself at this stage to refer to an argument on behalf of the
respondents in this court that the order
of the court a quo does not
reflect that the majority meant to refuse the application to lead
further evidence with costs against
all the appellants. Although the
order by the court a quo does not reflect an order allowing the
application to lead further evidence
and contains some other obvious
errors and deficiencies, to which I refer later, it is very clear
from the body of the judgment
that not only did Moosa and Allie JJ
agree with the receipt of the further evidence, but they proceeded on
the basis that such
further evidence put the main issue in the appeal
beyond dispute and went on to decide the appeal on a completely
different basis.
In addition, there was no attempt by the respondents
to cross-appeal or obtain a corrected order from the court a quo. The
belated,
opportunistic suggestion by the respondents’ counsel
during the hearing in this court that the appeal should be postponed
to enable the order of the court a quo to be corrected, has no merit
whatsoever.
[13] Without hearing
argument by any of the parties the majority in the court a quo
decided as follows:
‘
The articles/documents set out
in annexure “B” to the warrant, on the face of it, appear
to be too general, over-broad
and its terms are not reasonably clear.
The warrant is, in my view, not reasonably intelligible, in that it
does not reasonably
convey to the persons participating in the search
as per annexure “A” and the suspects and occupants of the
premises
the ambit of the search it authorises. The scope of the
warrant gives, in my view, untrammelled power to search the said
premises
and seize from such premises any articles/documents they see
fit within the range of the various classes of items.’
[14] In the light of the
conclusion that the warrant was overbroad in its terms, the court a
quo also found that the Magistrate
had not exercised his mind in
granting the warrant. That conclusion was expressed as follows:
‘
In the light of my findings,
the only reasonable inference I can draw is that the Third Appellant
had failed to apply his mind properly
or at all, firstly when it came
to the jurisdictional requirements for the authorisation of the
warrant in terms of section 21
read with section 20 of the Act and
secondly, when it came to the settling of the terms of the warrant. I
say so for the following
reasons: in the first place, the Third
Appellant misconceived his powers, role and function and made no
input in the crafting of
the warrant for which he was responsible as
a judicial officer; in the second place, the terms and ambit of the
warrant that was
presented to him by the Second Appellant, was
accepted and authorised uncritically by him without him having made
any input into
the terms and ambit of it; in the third place, he
failed to take cognisance of the omission of the dates from the
warrant which,
according to the Second Appellant, contains time
periods relevant to the documents required, and which were determined
with reference
to the periods during which the suspects committed the
offence and, in the fourth place, the terms of the warrant were
substantially
too general, over-broad and not reasonably clear.’
[15] The approach of the
majority of the court a quo contains at least two fundamental errors,
one relating to the procedure and
the other to the principles
applicable to search warrants. I proceed to deal with these in turn.
[16] The court a quo
relied on
Douglas v Douglas
[1996]
2 All SA 1
(A),
Ngqumba & ‘n ander v
Staatspresident & andere; Damons NO & andere v
Staatspresident & andere; Jooste v Staatspresident
& andere
1988 (4) SA 224
(A),
S v Safatsa
& others
1988 (1) SA 868
(A) and
R
v Mpompotshe & another
1958 (4) SA 471
(A) to come to the following conclusion:
‘
As far as the adjudication of
the other issues is concerned, the question which must be decided is,
whether the matter should be
referred to the court
a
quo
for consideration or
whether this court should adjudicate upon those issues. I am of the
view that this court is in as good a position
as the court
a
quo
to decide such issues
for the following reasons: Louw J, in his judgment, has partially
adjudicated on the question of whether
the Respondents should have
been informed of any of their constitutional rights before the
warrant was executed; the parties themselves
are keen to bring the
matter to finality as soon as possible; should the matter be referred
to the court
a quo
,
a delay would ensue before the issues are decided and, if the parties
are then unhappy with the result, the matter would have
to come to a
full bench again on appeal; such process would entail the incurring
of unnecessary costs; the issues are crisp and
the parties have
elected not to submit further heads of argument in respect of the
issues. In the circumstances, I conclude that
it will be in the
interest of the administration of justice that this court decides the
outstanding issues instead of referring
the matter back to the court
a quo
for consideration.’
[17] Only a few crisp
points need to be made about this conclusion. There were no further
issues before the court a quo that needed
to be decided – not
by it nor by the court of first instance. Leave was granted on one
issue and one issue alone. None of
the parties at any stage sought to
extend the issues in the appeal. None of the parties was heard on the
issues raised
mero
motu
by
the majority in the court a quo. The authority relied upon by the
majority in the court a quo, correctly read and applied, could
not
have led to the conclusion arrived at. The legal position is
succintly summarized in
Safatsa
at
877A-D:
‘
It is generally accepted that
leave to appeal can validly be restricted to certain specified
grounds of appeal . . . In practice
this is frequently a convenient
and commendable course to adopt, especially in long cases, in order
to separate the wheat from
the chaff. On the other hand, this Court
will not necessarily consider itself bound by the grounds upon which
leave has been granted.
If this Court is of the view that in a ground
of appeal not covered by the terms of the leave granted there is
sufficient merit
to warrant the consideration of it, it will allow
such a ground to be argued. . . . In my view, however, it requires to
be emphasised
that
an
appellant has no right to argue matters not covered by the terms of
the leave granted. His only “right” is to ask
this Court
to allow him to do so
.
’
(My emphasis)
[18] The principle above
was stated in relation to this court as it had jurisdiction to extend
the grounds on which leave to appeal
was granted. The court a quo had
no such jurisdiction. If the appellants, for example, were not
satisfied with the fact that Samela
AJ granted leave to appeal on one
ground alone, they had to direct a petition to this court, not the
full court, to extend the
grounds. Thus, even if any of the parties
asked the court a quo to extend the grounds of appeal – other
than when a point
of law arose – it had no jurisdiction to do
so.
Harlech-Jones
Treasure Architects CC & others v University of Fort Hare
2002 (5) SA 32
(ECD) at
51I-52B and
Queenstown
Girls High School v MEC, Department of Education, EC
2009 (5) SA 183
(Ck) at
186G-187A.
[19] While it is strictly
unnecessary to decide any further issue, the judgment of the majority
on the search warrant reveals so
clear a departure from established
principles as to require this court to ensure that it will not in
future serve as authority
for the reasoning contained therein.
3
[20] The court a quo
referred to several cases in which warrants of this nature were
discussed but somehow the principles that emerge
from those cases
were incorrectly applied.
4
Hence I proceed to refer
to the relevant principles again. Search warrants are statutory
creations designed to assist the state
in its fight against crime. It
has been held that the impact it has on an individual’s right
to privacy is necessary in order
to strike a balance between the
interests of the state and that of the individual. In
Investigating
Directorate: Serious Economic Offences & others v Hyundai Motor
Distributors (Pty) Ltd & others: In re Hyundai
Motor Distributors
(Pty) Ltd & others v Smit NO & others
[2000] ZACC 12
;
2001
(1) SA 545
(CC) the constitutionality of a search warrant in terms of
s 29 of the National Prosecuting Authority Act 32 of 1998 (the NPA
Act)
was considered and decided. That section requires reasonable
grounds to exist for a suspicion that a crime has been committed, a
lesser requirement than that contained in ss 20 and 21 of the Act.
Langa J wrote at paras 54 and 55:
‘
I now turn to weigh the extent
of the limitation of the right against the purpose for which the
legislation was enacted. There is
no doubt that search and seizure
provisions, in the context of a preparatory investigation, serve an
important purpose in the fight
against crime. That the State has a
pressing interest which involves the security and freedom of the
community as a whole is beyond
question. It is an objective which is
sufficiently important to justify the limitation of the right to
privacy of an individual
in certain circumstances. The right is not
meant to shield criminal activity or to conceal evidence of crime
from the criminal
justice process. On the other hand, State officials
are not entitled without good cause to invade the premises of persons
for purposes
of searching and seizing property; there would otherwise
be little content left to the right to privacy. A balance must
therefore
be struck between the interests of the individual and that
of the State, a task that lies at the heart of the inquiry into the
limitation of rights.
On the proper interpretation of the
sections concerned, the investigating directorate is required to
place before a judicial officer
an adequate and objective basis to
justify the infringement of the important right to privacy. The
legislation sets up an objective
standard that must be met prior to
the violation of the right, thus ensuring that search and seizure
powers will only be exercised
where there are sufficient reasons for
doing so. These provisions thus strike a balance between the need for
search and seizure
powers and the right to privacy of individuals.
Thus construed, s 29(5) provides sufficient safeguards against an
unwarranted invasion
of the right to privacy. It follows, in my view,
that the limitation of the privacy right in these circumstances is
reasonable
and justifiable.’
[21] That conclusion was
supported in the judgment by reasoning to the effect that the
relevant statute already embodies the constitutional
safeguards to
justify the infringement on the right to privacy. The reasoning is
apparent from paras 35, 37, 38, 40 and 42, which
I quote:
‘
The section is an important
mechanism designed to protect those whose privacy might be in danger
of being assailed through searches
and seizures of property by
officials of the State. The provisions mean that an investigating
director may not search and seize
property, in the context of a
preparatory investigation, without prior judicial authorisation. . .
.
It is implicit in the section that the
judicial officer will apply his or her mind to the question whether
the suspicion which led
to the preparatory investigation, and the
need for the search and seizure to be sanctioned, are sufficient to
justify the invasion
of privacy that is to take place. On the basis
of that information, the judicial officer has to make an independent
evaluation
and determine whether or not there are reasonable grounds
to suspect that an object that might have a bearing on a preparatory
investigation is on the targeted premises. . . .
It is also implicit in the legislation
that the judicial officer should have regard to the provisions of the
Constitution in making
the decision. The Act quite clearly exhibits a
concern for the constitutional rights of persons subjected to the
search and seizure
provisions. That is the apparent reason for the
requirement in s 29(4) and (5) that a search and seizure may only be
carried out
if sanctioned by a warrant issued by a judicial officer.
. . .
The concern for the constitutional
rights of those affected by the invasion of privacy as a result of
the execution of a search
warrant is also apparent, as stated
earlier, from the provisions of s 29(2) which require the execution
of a search warrant to
be conducted with strict regard to decency and
order, including respect for a person’s right to dignity, to
personal freedom
and security and to personal privacy. . . .
Sections 20
and
21
of the
Criminal
Procedure Act require
that searches be undertaken in connection with
criminal investigations only if there is reasonable suspicion that an
offence has
been committed, and that the search is designed to secure
evidence of such an offence.’
[22] There
is nothing in the differences between s 29 of the NPA Act and ss 20
and 21 of the Act to justify a different conclusion
to the one
arrived at in
Hyundai
.
The relevant sections provide:
’
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.
21
Article to be seized under search warrant
(1)
Subject to the provisions of sections 22, 24 and 25, an article
referred to in section 20 shall be seized only by virtue of
a search
warrant issued –
(a)
by a magistrate or justice, if it appears to such magistrate or
justice from information on oath that there are reasonable grounds
for believing that any such article is in the possession or under the
control of or upon any person or upon or at any premises
within his
area of jurisdiction; or
(b)
by a judge or judicial officer presiding at criminal proceedings, if
it appears to such judge or judicial officer that any such
article in
the possession or under the control of any person or upon or at any
premises is required in evidence at such proceedings.’
[23] In addition, s 29 of
the Act adds a further safeguard, similar to the one referred to in
para 38 of
Hyundai
:
‘
A search of any person or
premises shall be conducted with strict regard to decency and order,
and a woman shall be searched by
a woman only, and if no female
police official is available, the search shall be made by any woman
designated for the purpose by
a police official.’
[24] The
constitutionality of ss 20 and 21 and therefore its impact on the
respondents’ rights to privacy has correctly not
been attacked
in these proceedings. Therefore, the starting point in a
consideration of the validity of the warrant is to establish
whether
the warrant complies with the relevant sections. To this Nugent JA
added, in his majority judgment in
National
Director of Public Prosecutions & others v Zuma & another
[2008] 1 All SA 197
(SCA)
5
at
para 76:
‘
But there are two criteria for
validity that will indeed apply to all warrants for search and
seizure on account of their nature
alone. A warrant is no more than a
written authority to perform an act that would otherwise be unlawful.
Like any other written
authority it must obviously be intelligible
(“capable of being understood”) for it must be possible
to determine with
certainty the scope of its authority. A warrant
must also authorise no more than is permitted by its authorising
statute. . . .’
[25] The information
placed before the Magistrate by Zeeman that motivated the granting of
the warrant reveals that Zeeman had been
investigating allegations
against the individuals mentioned in the warrant since August 2007.
He alleged that he was in possession
of affidavits from informants
that the first respondent was the leader of an organization that was
formed to work towards the detonation
of explosive devices at targets
in South Africa in an attempt to persuade the South African
Government to stop following democratic
and capitalist principles. In
order to pursue this ideal the individuals involved had obtained from
the internet a formula for
the manufacture of explosive devices and
had already bought some of the elements needed to do so. The
information also revealed
that several members of this organization
had been recruited to execute the detonation of these devices. Zeeman
also alleged that
the information obtained as a result of his
investigation showed the commission, suspected commission and planned
commission of
several possible crimes, including high treason,
terrorism, conspiracy to commit murder and the contravention of
several sections
of the Protection of Constitutional Democracy
Against Terrorist and Related Activities Act 33 of 2004. Four
individuals were identified
as being involved in the organization and
five premises were identified at which items relating to the
activities of the organization
had been kept under the control of the
occupants of the premises.
[26] The items seized
from 16 Axminster Street included a computer hard drive that
contained directions to manufacture improvised
explosive devices,
video films of explicit scenes of murders, hydrochloric acid, acetone
and peroxide. Zeeman’s allegations
of what was found on the
searched premises are not disputed, nor are the allegations by
Captain P J Bester, an explosives expert
in the employ of the
Minister, that hydrochloric acid, acetone and peroxide are chemicals
used in the manufacture of improvised
explosive devices.
[27] The material placed
before the Magistrate disclosed a reasonable suspicion of the
commission of the crimes mentioned, by the
persons mentioned and that
the articles identified were at the premises identified. Some of the
articles identified were found
at the premises of the first
respondent and confirmed the reasonable suspicion held by Zeeman,
disclosed by him and accepted by
the Magistrate. The objective
standard set in the Act, together with the judicial oversight, were
important requirements that were
duly satisfied.
[28] According to the
wording of s 20 of the Act Zeeman was entitled to apply for a warrant
that authorised him to search for and
seize ‘anything’
that fell into the categories of ss (a), (b) and (c). The warrant
authorizes a search of specified
premises for items listed in groups
which are concerned in or are on reasonable grounds believed to be
concerned in the commission
of specified offences by named suspects
and does not, as was concluded by the court a quo, ‘[give]
untrammeled power to search
the said premises and seize from such
premises any articles/documents [the police] see fit’. It is
not overly broad in its
terms, in fact it follows the wording of the
empowering provision as was the case in
Zuma
.
6
The majority in the court
a quo was wrong in their conclusion that the warrant was overly broad
and that the Magistrate did not
apply his mind.
[29] The reference by the
majority in the court a quo to necessary safeguards similar to those
applied in Anton Piller orders was
misplaced. Nugent JA in
Zuma
succinctly
illustrated the inappropriateness of such a comparison at para 73:
‘
The example that the learned
Judge used of an Anton Piller order highlights the defect of that
approach. The Anton Piller order
is a remedy that the courts have
created in the exercise of their inherent powers. It is to be
expected in those circumstances
that the courts have fashioned a
“body of rules” determining when and in what form such an
order may be issued. But
that is not what we are concerned with in
this case. We are concerned with warrants that are issued under
statutory powers. It
is the statute that must dictate what is
required for a warrant to be valid and not that warrant that must
dictate to the statute.’
[30] In addition to the
above conclusion on the substance of the warrant, I need to mention
that the respondents failed to set out
in their founding papers in
which way they contend the warrant was overly broad. They confined
their case to the bare statement
alone. The majority ought not to
have constructed a case for the appellants.
[31] When it came to
costs the majority in the court a quo reasoned as follows:
‘
I now finally come to the
question of costs. I have mentioned earlier that I will return to the
question of costs in connection
with the admission of new evidence on
appeal. The Appellants as well as the Respondents have been
successful in respect of some
of the grounds of challenge to the
warrant. The Respondents, in my view, have been substantially
successful in the appeal. I see
no reason why costs, including the
costs of the admission of new evidence on appeal, should not be
awarded to the Respondents.’
No order was, however,
made in respect of the application to lead further evidence. An order
in relation to the costs of the appeal
before the court a quo was
also not made, but in relation to the costs of the proceedings before
the court of first instance the
majority ordered the three appellants
to pay the costs of the respondents, jointly and severally.
[32] The Magistrate did
not oppose the proceedings in the court of first instance and there
is no conceivable basis on which the
costs of those proceedings could
have been granted against him. The Minister and Zeeman did not bring
the application to lead further
evidence, but only the Magistrate,
who was successful in that application. There is no conceivable basis
why the Minister and Zeeman
should have been mulcted in those costs
nor why the costs of that application should not have followed the
result.
[33] To the extent that
the Magistrate participated in the appeal proceedings, he was
successful. The decision by the court of first
instance that he
granted a warrant without having evidence on oath before him, was
unanimously reversed by the court a quo. In
addition, costs are not
granted against judicial officers in relation to the performance of
their official function on the mere
ground that they acted
incorrectly, see
Regional Magistrate Du Preez
v Walker
1976 (4) SA 849
(A) at 852H-853E:
‘
It is necessary to consider
first the circumstances under which it would be open to a Court, in
its discretion, to grant an order
de
bonis propriis
against a
judicial officer whose actions in the performance of his duties as
such have been corrected or set aside on review. It
is a
well-recognised general rule that the Courts do not grant costs
against a judicial officer in relation to the performance
by him of
such functions solely on the ground that he has acted incorrectly. To
do otherwise could unduly hamper him in the proper
exercise of his
judicial functions. . . . There are, however, exceptions to this
rule. Thus if the judicial officer chooses to
make himself a party to
the merits of the proceedings instituted in order to correct his
action and should his opposition to such
proceedings fail, the Court
may, in its discretion, grant an order for costs against him. . . It
is also a recognised exception
to the general rule that if it is
established that the judicial officer’s decision has been
actuated by malice the Court
setting aside or correcting such
decision may grant costs against him even although he has not made
himself a party to the merits
of the proceedings.’
[34] The following order
is made:
1 The appeal is upheld
with costs, including, in respect of the first and second appellants,
the costs of two counsel;
2 The order of the court
below is set aside and replaced by the following:
‘
(a) The
application by the third appellant to lead further evidence is
allowed with costs;
(b) The appeal is upheld
with costs;
(c) The order of the
court below is set aside and replaced by the following:
“
The application is
dismissed with costs.”’
_____________________
S SNYDERS
Judge of Appeal
APPEARANCES:
For
the First and Second Appellant: F Joubert SC (with him D Kusevitsky)
Instructed
by:
The
State Attorney, Cape Town
The
State Attorney, Bloemfontein
For
the Third Appellant: R Jaga
Instructed
by:
Brink
& Thomas Inc, Cape Town
Mabalane
Seobe Inc, Bloemfontein
For
the Respondent: Z Omar
Instructed
by:
Zehir
Omar Attorneys, Springs
Nilands
Attorneys, Cape Town
EG
Cooper & Majiedt Attorneys, Bloemfontein
1
A
third applicant joined in the proceedings before the court of first
instance in respect of another warrant and other premises,
but
withdrew his application before the delivery of the answering
affidavits.
2
This
conclusion ignored some fundamental approaches in the conduct of
litigation, recently restated in
Minister
of Land Affairs and Agriculture & others v D & F Wevell
Trust & others
2008
(2) SA 184
(SCA) at 200C:‘It is not proper for a party in
motion proceedings to base an argument on passages in documents
which have
been annexed to the papers when the conclusions sought to
be drawn from such passages have not been canvassed in the
affidavits.
The reason is manifest – the other party may well
be prejudiced because evidence may have been available to it to
refute
the new case on the facts. The position is worse where the
arguments are advanced for the first time on appeal. In motion
proceedings,
the affidavits constitute both the pleadings and the
evidence:
Transnet
Ltd v Rubenstein
,
and the issues and averments in support of the parties’ case
should appear clearly therefrom. A party cannot be expected
to trawl
through lengthy annexures to the opponent’s affidavit and to
speculate on the possible relevance of facts therein
contained.
Trial by ambush cannot be permitted.’ The reference is to
Transnet
Ltd v Rubinstein
2006
(1) SA 591
(SCA);
[2005] 3 All SA 425
(SCA).
3
See
in this regard
National
Director of Public Prosecutions v Moodley & others
2009 (2) SA 588
(SCA) para 10 where even after a point was abandoned that court was
concerned that a judgment on that point did not serve as
a
precedent.
4
The
authorities referred to are:
Thint
(Pty) Ltd v National Director of Public Prosecutions & others;
Zuma v National Director of Public Prosecution &
others
2009 (1) SA 1
(CC);
Bernstein
& others v Bester & others NNO
[1996] ZACC 2
;
1996
(2) SA 751
(CC);
Investigating
Directorate: Serious Economic Offences & others v Hyundai Motor
Distributors (Pty) Ltd & others: In re Hyundai
Motor
Distributors (Pty) Ltd & others v Smit NO & others
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
Powell
NO & others v Van der Merwe NO & others
2005 (5) SA 62
(SCA);
Toich
v The Magistrate, Riversdale & others
2007
(2) SACR 235
(C).
5
Hereafter
referred to as
Zuma
.
6
Zuma
paras 88,89,98 and
101.