Gigaba v Minister of Police and Others (43469/2020) [2021] ZAGPPHC 55; [2021] 3 All SA 495 (GP) (11 February 2021)

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[2021] ZAGPPHC 55
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Gigaba v Minister of Police and Others (43469/2020) [2021] ZAGPPHC 55; [2021] 3 All SA 495 (GP) (11 February 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISON,
PRETORIA
CASE NUMBER:
43469/2020
In
the matter between:
NOMACHULE
GIGABA (born MNGOMA)
Applicant
and
MINISTER
OF POLICE
First
Respondent
DIRECTORATE
FOR PRIORITY
CRIMES
INVESTIGATIONS
Second Respondent
MAJOR
GENERAL MO
NGWENYA
Third Respondent
CAPTAIN
K.M MAVUSO
Fourth Respondent
SERGEANT
NORTON NDABAMI
Fifth Respondent
DIRECTOR
OF PUBLIC PROSECUTIONS:
NATIONAL
PROSECUTING
AUTHORITY
Sixth Respondent
WISE
4
AFRICA
Seventh Respondent
JUDGMENT
SARDIWALLA,
J
:
Introduction
[1]
This is an urgent application in terms of Rule 6
(12) (a) brought by the applicant in respect of a series of conduct
to obtain relief
in the form of declaratory relief of the
unconstitutionality regarding the egregious infringements of her
rights. More specifically
the applicant seeks the following relief:
1.
Dispensing with the
normal provisions of the Rules and dealing with this application on
the basis of urgency, in terms of Rule 6(12)
(a) of the Rules, read
with the relevant directives.
2.
Declaring that the
decision of the third and fourth respondents to apply for the warrant
of arrest of the applicant is unconstitutional,
irrational and
invalid.
3.
Declaring that the
decision to issue the warrant of arrest of the applicant is
unconstitutional, irrational and invalid.
4.
Declaring that the
decision to execute the warrant of arrest by third and fourth
respondents is unconstitutional, irrational, invalid
and of no force
or effect.
5.
Setting aside the
decision to effect the arrest and/or to prosecute the applicant.
6.
Declaring the
confiscation of the applicant’s information and communication
technology equipment
to be unlawful, unconstitutional and accordingly invalid.
7.
Ordering the
respondents to restore all information unlawfully removed from ICT
equipment.
8.
Directing the third,
fourth and fifth respondents to return the information which was
downloaded from
electronic gadgets of the applicant by the third and fourth
respondents, including the information contained in
Disc 1 to Disc 6
referred to in these papers, forthwith.
9. Directing that
the costs of this application on an attorney and own client scale are
paid
by those respondents who will deliver notice(s) to oppose.
9.
Alternatively to
paragraph 10 above: Directing that the third, fourth and fifth
respondents to pay
the said costs, in their personal capacities.
Factual
Background
[2]
The applicant is lawfully married to Mr Malusi Gigaba
(hereinafter referred to as Mr Gigaba) a national leader of the
ruling party
and a former Minister of Home Affairs, Public
Enterprises and Finance in South Africa.   They have two
male children
aged 9 and 7.  They all currently reside at 308
Derrick Street, Waterkloof Ridge, Pretoria.
[3]
On or about 20 July 2020, the fourth respondent (hereinafter also
referred to as “Captain
Mavuso”) and the fifth respondent
(hereinafter also referred to as “Sergeant Ndabambi”)
arrived at the Gigaba
residence, ostensibly to investigate two
alleged offences related to:
3.1. malicious
damage to property in respect of a Mercedes Benz G- Wagon, which had
been allegedly scratched on its body with a
sharp instrument, which
we now know to be a vegetable slicer.  The car had been parked
at the garage of the applicant’s
house;
3.2.
crimen
injuria
in respect of a WhatsApp message which had been sent from
the applicant’s cellular phone to one Mr Pietersen Siyaya, who
is a friend or business partner of Mr Gigaba, which message Mr Siyaya
had apparently found to be insulting.
3.3   These
offences were said to have been allegedly committed on 19 July 2020.
3.4. Two days later,
on 22 July 2020, the two policemen returned to the Gigaba residence.
They identified themselves as members
of the Hawks.  They told
the applicant, in the presence of her two minor children, that she
was under investigation and facing
arrest.
3.5. They further
demanded all the applicant’s electronic communication devices
and gadgets in connection with the abovementioned
crimen injuria
complaint laid by Mr Siyaya.
3.6   On
30 July 2020 the Hawks returned and placed the applicant under
arrest.
The
Issues
[4]
The applicant has asked this Court is to determine the following:
4.1.
was the arrest lawful and constitutional?
4.2.
is the prosecution lawful and constitutional?
4.3.
was the confiscation of the ICT equipment lawful and constitutional?
The
applicant’s case
[5]
The applicant’s version can be summed up as follows: -
5.1. The applicant
voluntarily indicated which cellular phone she had used in respect
of
any communication with Mr Siyaya and offered it to the policemen.
They stated
that
according to “the law”, they had to take each and every
such gadget in her
possession,
regardless of whether or not it had been used in the commission of
the
relevant
offence.13
5.2. The applicant
requested to call her lawyer and was advised that the right to talk
to
a
lawyer did not apply to the Hawks but only to investigations carried
out by the
regular
police.  As a lay person, the applicant believed this to be
true.
5.3. The applicant
requested to use the bathroom and Sergeant Ndabambi followed her
to the
bathroom. When she came out, both members of the Hawks were standing
outside and
instructed her to go to her bedroom to fetch her other gadgets which
were kept
there.  It is common cause that they went with the applicant
into her
private
bedroom.
5.4. Once they were
in possession of all her gadgets, they demanded that she should
tell
them all the secret pin codes.  When she refused, they
threatened her that
refusing
an instruction from the Hawks was a criminal offence.  She
provided them
with
the secret pin codes which they tested on the devices before taking
the devices
away.
5.5. The applicant
pleaded that she required the use of her laptop, as she is a
party-time
student
and depended thereon during the Covid-19 crisis.
5.6. The applicant
consulted a friend who advised her that the police conduct was
unlawful
and advised her to make enquiries at the Brooklyn Police Station.
5.7. Upon arrival at
the Brooklyn Police Station at about 9.00 pm, the applicant was
informed
that the two cases had indeed been opened but the dockets had been
booked
out by the Hawks. They knew nothing about the alleged assault
charge.
They also
advised the applicant to get the assistance of a lawyer. They also
revealed
that it was
curious to them that the Hawks were involved in the investigation
and, to
make matters
worse, it was the Hawks from the Mpumalanga province.
5.8. On 24 July
2020, the applicant consulted with her current attorneys, who
contacted
the Hawks and spoke
to Sergeant Ndabambi who indicated that the devices “were
with the experts”
and would only be returned once they had finished examining
them. He also gave
him the contact details of General Ngwenya, from whom they
took instructions in
relation to the matter.
5.9. After doing
what is known as a sim-swap, the applicant discovered that some of
her
information had been wiped off and she no longer had access to her
social
media
applications.  Some of the messages had been deleted.
5.10. On 30 July
2020, the applicant informed Mr Gigaba that unless her gadgets were
returned
by the evening, legal proceedings would be instituted for their
return.
On
Friday 31 July 2020, Mr Gigaba informed the applicant that the Hawks
would
be
arriving to return the gadgets. When the Hawks arrived instead of
returning
the
gadgets, they informed the applicant that they were placing her under
arrest.
5.11. At the police
station, Sergeant Ndabambi repeatedly told the applicant that she
would remain in the police cells until Monday
3 August 2020. The
conditions in the cells were unpleasant in that apart from the winter
cold, the other two inhabitants of her
cell refused to wear their
masks to prevent the possible risk of transmission of the
Coronavirus.
5.12. At no
point was the applicant shown a warrant of arrest. An argument ensued
between the police station members and the Hawks
about the necessity
of the applicant’s arrest. When the applicant requested to call
her lawyer, Sergeant Ndabambi refused
again.  It was the regular
police who intervened and offered her the landline at the police
station, stating that she was
now under their custody and she had a
constitutional right to call her lawyer.   She accordingly
made telephonic contact
with Mr Nkhwashu.
5.13. When Mr
Nkhwashu arrived at the police station before 18h00, it transpired
that the members of the Hawks had already left
with the dockets.
This made it impossible to secure the release of the applicant on
that Friday.
5.14. The
following day, Saturday 1 August 2020, and while arrangements were
underway to bring a High Court application to secure
the applicant’s
release, her attorney and the prosecutor reached an agreement, which
resulted in her release on R5,000.00
bail, approximately 26 hours
after her arrest.
5.15. It later
transpired that the Hawks had made an application in terms of section
43 of the Criminal Procedure Act and obtained
a warrant of arrest
from one, Magistrate King based on the information contained in the
docket compiled by the Hawks.
5.16. On 2 August
2020 and following her release, the applicant instructed her
attorneys to demand
the release of her gadgets by no later than 17h00 on 3
August 2020, failing
which to bring an urgent High Court application. The
gadgets were
returned at 09h00 on 4 August 2020.
5.17. When the
applicant was provided with copies of the docket she
discovered   that   the
information
from   her confiscated gadgets had been downloaded onto two
discs which had not been furnished
to her lawyers and some specific
information had been removed or erased which had no relationship to
the allegations of the two
criminal charges.
5.18. On 3
August 2020 the applicant appeared in the Hatfield Magistrates Court
and by agreement the matter was remanded to 14 September
2020 to
allow for the bringing of the present application.
[6]
It is the applicant’s submission that her unlawful arrest and
detention was
tainted by improper and corrupt motives and was
therefore executed for the unlawful purpose of gaining unlawful
access to the applicant’s
ICT communications equipment and/or
obtaining and deleting specific information. The applicant submits
that the execution of the
warrant and confiscation of her electronic
equipment infringed upon her constitutional rights and was
ultra
vires
the powers of the respondents. The applicant also contends
that the affidavit that supported the warrant of arrest related to
the
crime of “defamation of character” which is different
from the crimes of malicious damage to property and
crimen injuria
which the applicant has been charged with therefore the warrant is
defective
ab initio
. It is the applicant’s submission
that her unlawful arrest, detention, confiscation of equipment and
prosecution is ultimately
a breach of the principle of legality and
was an orchestrated scheme to intimidate and harass her.
The
respondents’ version
[7]
The respondents who opposed this application raised two points
in
limine
namely urgency and whether this Court has the jurisdiction
to grant the relief sought. It submits that the application is
without
merit as the applicant is merely seeking to obstruct and
delay the pending criminal proceedings against her.  Its version
can be summarised as follows: -
7.1. During June
2020 the former Minister Mr Malusi Gigaba laid a complaint with the
Hawks
that he had reason to believe that there was conspiracy to murder him
and
that
such complaint was then directed to the task team to investigate
further;
7.2. It submits that
following the compliant the task team commenced investigations
and
inquiry docket was registered and opened as it regarded the
conspiracy to
commit
murder a very serious crime;
7.3. The task team
was subsequently informed of the other alleged offences that were
committed
which involved Mr Gigaba and that such offences may be linked or may
influence
the investigations of the conspiracy to commit murder of Mr Gigaba.
The
task
team resolved to also investigate the related complaints as reported
by and
involving
Mr Gigaba and that they did so lawfully;
7.4. Mr Gigaba laid
a complaint at the Brooklyn Police station under CAs No
341/07/2020.
In an affidavit deposed by Mr Gigaba he stated that a suspicious
vehicle
had come to his house which he later found that the people in the
vehicle
were
people from the “counter-intelligence” and that they were
called by the
applicant.
He stated that he felt unsafe in his own home;
7.5. On 21 July 2020
Mr Gigaba deposed to an affidavit that the applicant scratched his
friend’s
car (a Mercedes Benz G-Wagon 63 with registration number FH13LPGP)
which
was parked at their marital home. He informed them that the malicious
intent
to
property was perpetrated by the applicant and asked them to
investigate the
matter
further.;
7.6. When the DPCI
became aware of Mr Gigaba’s complaints they resolved to
investigate
and that Section 17D93) of the Saps Act clearly permits the
directorate
to
be involved in the investigation of any offence, which it suspects to
be possibly
connected
to the subject of its pending investigations;
7.7. That the
applicant voluntarily deposed to a warning statement before Captain
Mavuso
in which she admitted that she caused damaged to the Mercedez Benz G-
Wagon
63;
7.8. A charge of
crimen injuria
was laid against the applicant by Mr Peterson
Sibiya
which
the applicant admitted to the Whatsapp messages she sent but claimed
that
it
was not wrongful or unlawful;
7.9. That on 30 July
2020 having satisfied itself that there was reasonable suspicion and
sufficient
prima facie
evidence
contained in the two dockets that the investigating
officer
applied for a warrant of arrest.
7.10. A warrant of
arrest was secured on 30 July 2020 and lawfully executed on 31 July
2020
and processed at the Brooklyn Police Station.
7.11. The applicant
was released on bail on 1 August 2020 and only launched the
current
application on 2 September 2020 and as such the nature of the matter
should
not be addressed on an urgent basis.
Urgency
[8]
The general principles applicable in establishing urgency are dealt
with in Rule 6(12) of the Uniform
Rules of this Court.
The
importance of these provisions is that the procedure set out in Rule
6(12) is not there for the mere taking.  Notshe AJ
said in
East
Rock Trading 7 (Pty) Ltd and Another v Eagle Valley Granite (Pty) Ltd
and Others
(11/33767) [2011] ZAGPJHC 196 (23 September 2011) in paras 6 and 7 as
follows:
‘
[6]
The import thereof is that the procedure set out in rule 6(12) is not
there for taking. An applicant has to set forth explicitly
the
circumstances which he avers render the matter urgent. More
importantly, the Applicant must state the reasons why he claims
that
he cannot be afforded substantial redress at a hearing in due course.
The question of whether a matter is sufficiently urgent
to be
enrolled and heard as an urgent application is underpinned by the
issue of absence of substantial redress in an application
in due
course. The rules allow the court to come to the assistance of a
litigant because if the latter were to wait for the normal
course
laid down by the rules it will not obtain substantial redress.
[7]
It is important to note that the rules require absence of substantial
redress. This is not equivalent to the irreparable harm
that is
required before the granting of an interim relief. It is something
less. He may still obtain redress in an application
in due course but
it may not be substantial. Whether an applicant will not be able
obtain substantial redress in an application
in due course will be
determined by the facts of each case. An applicant must make out his
case in that regard.
[9]
This leaves the requirement of the applicant’s
ability to obtain proper substantive redress in due
course, for
consideration. Obviously, and where a matter is struck from the roll
for want of urgency, then the merits of the application
remains
undetermined. It follows that the application can still be considered
and granted by a Court in the ordinary course. But
I understand that
in this case, there is a unique consideration. Considering the
undeniable realities of litigating in the ordinary
course, by the
time the criminal matter proceeds, the applicant would be subjected
to continuous and ongoing violations to her
reputational dignity,
restrictions of movement, privacy and abuse of power. The applicant
is therefore not able to obtain substantive
redress in the ordinary
course. However even if the application failed on urgency, it is
possible, in appropriate circumstances,
to even dispose of the matter
on the merits, where a matter is regarded as not being urgent,
instead of striking the matter from
the roll. The Court in
February
v Envirochem CC and Another
[1]
dealt with this kind of consideration, and even though the Court
accepted that urgency was not established, the Court nonetheless

proceeded to dismiss the matter in the interest of finality and so
the matter should be dealt with once and for all.
[10]   The
applicants explained that pending the criminal trial which was
postponed to allow for the bringing of this
application, that she has
been deprived of her equipment as well as certain information being
provided to her legal representatives
to adequately prepare and is
direct result of the abuse of power by organs of the State and her
politically affiliated husband.
Who
will probably suffer irreparable harm?
[11]   The
determinative question in therefore who will suffer harm if the
relief is not granted? I am of the view, that
on a balance of
probabilities, the applicant will suffer irreparable harm if the
application is not heard, and respondents will
not suffer irreparable
harm. My reasons are essentially these:
11.1. The applicant
is a private citizen who freedom and liberty has been
deprived by the
events leading up to the criminal proceedings If in the
meantime the
respondents were permitted to act in accordance as they
have done previously
leading up to the arrest of the applicant, the
applicants will have
lost completely the benefit of the protection of her
constitutional
rights. Ultimately, she will have a court order in her favour
but despite this
fact, her rights will have been rendered meaningless. That
harm is irreparable
and cannot be ignored.
11.2.
If the respondents succeed in the criminal case but in the meantime
the
relief is not
granted, it would have suffered no harm and certainly does
not constitute
irreparable harm. The costs it would incur to remedy its
unlawful conduct
does not, in my view, constitute irreparable harm.
The
Jurisdictional Challenge
[12]
In
Kwemaya
v National Commissioner, Correctional Services and another
[2]
,
Olsen J referred to the case
Makhanya
v University of Zululand
2010
(1) SA 62
(SCA)
at paragraphs 71 and 72, where it was held that the proper approach
for a court confronted with a claim, and an objection that
the court
lacks jurisdiction to entertain the claim, is to accept that the
claim before the court is “a matter of fact”.
If a
claimant says that the claim arises from the infringement of a right
to enforce a contract, then the court must deal with
it accordingly.
When the claimant says the claim is to enforce a right created by the
Labour Relations Act then that is the
one before the court, as a
matter of fact.  When the claim is said to be for the
enforcement of a right derived from the Constitution
then that as a
fact is the claim.  The question as to whether the claim is bad
is beside the point.  The court went on
to say that a claim
which exists as a fact is not capable of being converted into a claim
of a different kind by the mere use of
language; and a court cannot
under the guise of “characterising” a claim purport to
convert the claim placed before
the court into a claim of another
kind.
[13]
He went on to say that approaching the matter in the light of what
was said in
Makhanya
supra
,
would mean that one should reach an understanding about what a claim
is by having regard only to the label attached to it by the
claimant;
and not by looking to the elements of the cause of action pleaded by
the claimant in order correctly to label the claim
where the claimant
might have done so incorrectly.  His view was that
Gcaba
v Minister for Safety and Security
[3]
illustrates
that
Makhanya
should not be read that way and he went on to state the following:
“
[
29]
Gcaba concerned a policeman who had applied for a position
unsuccessfully.  He approached the High Court
with an
application to review the decision not to appoint him.  The High
Court decided that it lacked jurisdiction to entertain
the
application because it was an employment matter.  Before the
Constitutional Court the applicant contended that his claim
was from
inception one which fell under PAJA, as he sought to vindicate his
right to just administrative action.  The respondents
contended
that the applicant’s claim was a labour matter which had to be
adjudicated through the “finely tuned mechanisms
provided for
in the LRA”.  The court in Gcaba held that before
addressing the issue of jurisdiction, and indeed in order
to address
that question, the court had to decide whether the conduct complained
of by Mr Gcaba was administrative action.
(See paragraph 63 of
the judgment.)  Having found that it was not, the court held (in
paragraph 75 of the judgment) that where
the court’s
jurisdiction is challenged in limine at the outset, the pleadings
and, in motion proceedings, also the contents
of the supporting
affidavits, must be interpreted “to establish what the legal
basis of the applicant’s claim is”.
If, “properly
interpreted”, that enquiry establishes that the applicant is
asserting a claim within the exclusive jurisdiction
of the Labour
Court, the High Court would lack jurisdiction. On that basis the
decision of the High Court in Gcaba was found to
have been correct.
[30]
It seems to me that I must follow the same approach as was followed
in Gcaba.  There (in paragraph
64 of the judgment) it was held
that where a grievance is raised by an employee relating to the
conduct of the State as employer,
and there are “few or no
direct implications or consequences for other citizens”, then
the conduct complained of is
not administrative action.  Here,
perhaps even more than in the case of Mr Gcaba, the conduct of the
department in which the
applicant was employed carried no
implications and generated no consequences for anyone outside the
particular relationship between
the applicant (as employee) and her
employer, the State.  The applicant wrongly pleads in her papers
that what happened is
governed by PAJA.  She erroneously
attaches the lable “administrative action” to the conduct
she complains of.
For that reason, following Gcaba, the
conclusion must be that this court lacks jurisdiction if the
characterisation of the conduct
of the State as administrative action
is the only basis upon which the applicant asks the court to decide
her claim
[4]
.”
[14]
It is therefore important to consider the applicants’ interest
in this matter. In
Giant
Concerts CC v Rinaldo Investments (Pty) Limited
[5]
Cameron J dealt with the requirements to establish own interest
standing in a legality challenge.  The following appears in

paragraph 35 of the judgment.
“
Hence, where a litigant
acts solely in his or her own interest, there is no broad or
unqualified capacity to litigate against illegalities.

Something more must be shown.”
[15]
The requirement to be established is whether the illegality directly
affects his or her rights
or interests, or potential rights or
interests. The applicants’ standing is that the confiscation of
her equipment was convened
unlawfully and without a warrant together
with the fact that she was refused the right to legal representation,
conduct which she
claimed extinguished her rights and violated her
right to dignity and privacy. The current rights applicant seeks to
enforce are
directly related to the unlawful arrest and confiscation
of her equipment. Ultimately the applicant has come before this court
to vindicate her constitutional rights which are protected by the
provisions of section 38 (a) of the Constitution, whose task it
is to
protect those rights.
[16]
In the circumstances I conclude that this court has jurisdiction to
determine the present application.
The
functions and mandate of the Hawks
[17]
Established under Chapter 6A of the
South African Police Service Act
68 of 1995
, the essential job description of the Hawks is to
“prevent, combat and investigate national priority offences, in
particular
serious organised crime, serious commercial crime and
serious corruption”.
[18]
The Hawks was deeply rooted in the ashes of the Directorate of
Special Operations formally known
as the Scorpions. However, unlike
the Scorpions, the Hawks are not located in the office of the
National Prosecuting Authority,
which is explicitly mandated by the
Constitution to function without “fear, favour or prejudice”.
The Hawks are located
in the South African Police Service. Initially
this created uncertainty because under section 206 of the
Constitution, a politician
is ultimately “responsible for
policing”. The argument was that this political accountability
could not be squared
with the constitutional need for a
corruption-busting unit to be adequately independent.
[19]
Section
205(3) of the Constitution requires the establishment of a national
police service in order to “prevent, combat and
investigate
crime”. Section 205(2) requires that the legislature “establish
the powers and functions of the police
service” in order to
“enable the police service to discharge its responsibilities
effectively”. This means that
for the police service to
effectively discharge its responsibilities under the Constitution, it
must not be subject to undue influence.
That is the extent of the
obligation imposed by the Constitution, and it is in this context
that the obligation imposed by section
7(2) of the Constitution must
be understood. The question therefore for determination was whether
the impugned laws established
an anti-corruption unit that has the
capacity to “discharge its responsibilities effectively”,
as required by the Constitution.
T
he
Constitutional Court declared the unconstitutionality and invalidity
of Chapter 6A in
Glenister
II v President of the Republic of South Africa and Others
[6]
where the court found that: “What is required is not insulation
from political accountability, but only insulation from a
degree of
management by political actors that threatens imminently to stifle
the independent functioning and operations of the
unit.”
[
20]
In
that case the court went on to further say;
“
[118]
What is apparent from international instruments is that the
requirement of independence is intended to protect members of
the
agency from undue influence. This is necessary to ensure that the
anti-corruption unit can “discharge its responsibilities

effectively”. The independence of anti-corruption agencies is
“a fundamental requirement for a proper and effective
exercise
of [their] functions.” This is so because corruption largely
involves the abuse of power. In corruption cases involving
the public
sector, at least one perpetrator comes from the ranks of persons
holding a public office. Hence the need to shield anti-corruption

units from undue influence. This is a theme that recurs in the
international and regional instruments cited by the amicus.
Independence
in this context therefore means the ability to function
effectively without any undue influence. It is this autonomy that is
an
important factor which will affect the performance of the
anti-corruption agency.
……
“
[132]
The starting point in determining the sufficiency of the independence
of the priority offences, and to establish an independent

anti-corruption unit that is apparent from the provisions of chapter
6A of the SAPS Act.
111
The
core provision in this regard is section 17B. It provides that among
the factors that must be taken into account in the
application of the
provisions of this chapter, is the “need to ensure that the
Directorate . . . has the necessary independence
to perform its
functions . . . [and] is equipped with the appropriate human and
financial resources to perform its functions”.
Thus, chapter 6A
is premised on the independence of the DPCI. To this extent, it
provides an interpretive injunction for the application
and
implementation of its provisions. Those who are charged with the
application and implementation of the provisions of this chapter
are
bound by this injunction. It is an injunction that is deeply rooted
in the need for an anti-corruption unit, free from any
undue
political influence or otherwise.”
[21]
The sentiments of
Glenister
II
was also echoed in
S
v Shaik and Others
[7]
, where
the Supreme Court of Appeal pointed out that—
“
the
seriousness of the offence of corruption cannot be overemphasised. It
offends against the rule of law and the principles of
good
governance. It lowers the moral tone of a nation and negatively
affects development and the promotion of human rights.
As a country
we have travelled a long and tortuous road to achieve democracy.
Corruption threatens our constitutional order. We
must make every
effort to ensure that corruption with its
putrefying
effects
is halted. Courts must send out an unequivocal message that
corruption will not be tolerated and that punishment will be

appropriately severe.”
[22]
In
Helen
Suzman Foundation v President of the Republic of South Africa and
Others
[8]
the Court held that the amended Act does not ensure adequate
independence for the Hawks, finding certain sections to be
unconstitutional
to the extent that they did not sufficiently
insulate the Hawks from potential executive interference. In its
judgment the Constitutional
Court confirmed
inter
alia
the following:
22.1. National
priority offences. The Court found that the provisions in relation
to
national priority offences that provide for the policy guidelines
(issued
by
the Minister of Police), that determine the functions of the Hawks,
are
inconsistent
with the Constitution, and should be excised. The issuing of
guidelines
in relation to national priority offences by political actors who
can
then influence the functional activities of the Hawks was held to
undermine
the independence of the DPCI.
22.2. Selected
offences. The term "selected offences" in section 17D (1)
(aA)
were
not defined in the amended Act and there was no indication as to
how
they are selected and by whom. The Court found that this could easily
limit
the functional independence of the Hawks, and allow for undue
executive
or political interference.  The Court held that an institution
of
this
importance should never be left guessing as to what its functions
are.
The
undefined "selected offences" were thus held to be a threat
to the
operational
independence of the Hawks. The offending wording was thus
severed
from the provision.
22.3. Any other
offence or category of offences. The Hawks were charged under
the Act with the
duty to prevent, combat and investigate "any other offence
or category of
offences referred to it from time to time by the National
Commissioner,
subject to any policy guidelines issued by the Minister and
approved by
parliament". The Court found that this provision, by vesting
in the Commissioner
the power to prescribe part of what the Hawks are to
do, was a
constitutionally impermissible encroachment and interference
into the operational
space of the Hawks and thus at odds with an
adequately
independent anti-corruption unit. It was thus confirmed that
section 17D(1)(d) is
constitutionally invalid.
[23]
Subsequent to the declaration of invalidity The Directorate for
Priority Crime Investigation
has now been established as an
independent directorate within the South African Police Service in
terms of
Section 17C
of the
South African Police Service Act, 1995
as
amended by the South African Police Service Amendment Act, 2008 (Act
57 of 2008).
[24]
Section 17D of the SAPS amended Act specifically deals the functions
and/or mandate of the DPCI
and provides as follows: -
“
17D.
Functions of Directorate.
(1)  The
functions   of   the   Directorate
are   to
prevent, combat   and
investigate—
(a)
national priority offences, which in the opinion of the Head of the
Directorate need to be addressed
by the Directorate, subject to any
policy guidelines issued by the Ministerial Committee; and
(b)
any other offence or category of offences referred to it from time to
time   by
the   National
Commissioner, subject   to   any
policy guidelines issued
by the Ministerial Committee.
(2)  If, during the
course of an investigation by the Directorate, evidence of any other
crime is detected and the Head of
the Directorate considers it in the
interests of justice, or in the public interest, he or she may extend
the investigation so
as to include any offence which he or she
suspects to be connected with the subject of the investigation.
(3)  The Head of the
Directorate may, if he or she has reason to suspect that a national
priority offence has been or is being
committed, request the National
Director of Public Prosecutions to designate a Director of Public
Prosecutions to exercise the
powers of section 28 of the National
Prosecuting Authority Act, 1998 (Act No. 32 of 1998).
[25]
Interestingly
in a briefing held on 17 September 2014 titled Mandate and Activities
Directorate for Priority Crimes Investigations
[9]
which focused on the DPCI mandate and operating model of “Seek,
Find, Strike and Succeed with impact” the Hawks highlighted
its
mandate as follows:
“
Any offence referred to
in:
•
Protection of
Constitutional Democracy against Terrorist and Related Activities
Act, 2004 (Act No. 33 of 2004);
•
Implementation of the Rome
Statute of the International Criminal Court Act, 2002 (Act No. 27 of
2002);
•
Chapters 2, 3 and 4 of the
Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998);
•
Section
13(l) of the Drugs and Drug Trafficking Act, 1992 (Act No. 140 of
1992);
•
Non-Proliferation
of Weapons of Mass Destruction Act, 1993 (Act No.87 of 1993);
•
Chapter
2 and section 34 of the Prevention and Combating of Corrupt
Activities Act, 2004 (Act No. 12 of 2004);
•
Regulation of Foreign Military
Assistance Act, 1998 (Act No. 15 of 1998), or the Prohibition of
Mercenary Activities and the Regulation
of Certain Activities in
Country of Armed Conflict Act, 2006 (Act No. 27 of 2006);
•
National
Conventional Arms Control Act, 2002 (Act No. 41 of 2002);
•
High
treason; and
•
Sedition”.
[26]
It went on to further state that its mandate involved;
·
“
Organised crime is defined as criminal entities that are
designed for the commission of serious National and Transnational
crimes
geared towards profit achieved through illegal activities.
·
They operate within an Organised criminal business system with a
structure greater than any individual member and the potential for

corruption and/or violence to facilitate the criminal activities and
processes.
[27]
It also identified its mandated priorities, such as the types of
National Threat problems that were being
addressed by the DPCI:
·
Narcotics
·
Human Trafficking
·
Rhino Poaching
·
Illicit Mining
·
Non Ferrous Metals
·
Specific Violent Crimes
·
Vehicles Crimes
·
Illicit Cigarettes
·
Economic
Crimes
Women’s
rights are human rights
[28]
Historically,
women
have
been
excluded
from
political
life
and
decision-making
processes.
W
omen
’
s
campaigns
for
participation
in
the
public
and
political
arena
date
back
to
the
nineteenth
and
twentieth
centuries
and
continue today. Although women’s many of women’s rights
have been secured in nearly every country of the world,
in practice,
those rights can sometimes be meaningless when
other
conditions
make
it
virtually
impossible
or
very
difficult for
women. Such as, the absence of free and fair freedom
of
expression,
or
lack
of
security,
which
tends
to
affect women disproportionally. Other
obstacles
such
as
stereotyping
and
traditional perceptions of men’s and women’s roles in
society, as well as lack of access to relevant information
and
resources, also inhibit women’s possibilities or willingness to
exercise their rights fully.
Traditional
working
patterns
of
many
political
parties
and
government
structures
continue
to
be
barriers
to
women’s
rights in addition to patriarchy, discriminatory attitudes and
practices. Patriarchy
[10]
is
very much a part of African life and is deeply entrenched in the
“norms, values and customs”. The male is seen as
lord
over the female and it is the males will and cultural norms which
dominate and legislate the relationship. This domination
over woman
is reflected right from the process of contracting a marriage during
which a man pays a bride price for his wife, which
ultimately makes
her the property of her husband.
[29]
Women’s human rights are abused when they cannot participate in
decisions that affect their
lives, are not given fair representations
and suffer violence within their own homes.
The
Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW), a key international agreement on women’s
human
rights, was adopted by the United Nations General Assembly in 1979
and ratified by South Africa on 15 December 1995. CEDAW
is often
described as an international bill of rights for women. Its preamble
and 30 articles aim to eliminate gender discrimination
and promote
gender equality. The convention defines discrimination against women
as “any distinction, exclusion or restriction
made on the basis
of sex” that impedes women’s “human rights and
fundamental freedoms in the political, economic,
social, cultural,
civil or any other field.” It sets an agenda for national
action to end such discrimination, requiring
all parties to the
convention to take “all appropriate measures, including
legislation, to ensure the full development and
advancement of women”
and guarantee their fundamental freedoms “on a basis of
equality with men.”
The current
application
[30]
The applicant seeks an order against The Minister of Police as the
first respondent, The Directorate
for Priority Crime Investigation,
the second respondent, setting aside arrest warrant issued by members
of the second respondent
and ordering them to return to them all
items seized from the applicants pursuant to the warrant.  The
application is opposed
by all the respondents.
[31]
It is common cause that the applicant did not consent to the entry or
the search of her property nor,
obviously, to the removal of the
various items which were seized.  According to the applicant the
search commenced over her
objections. It is also not disputed that
the applicant was not presented with a search warrant or an arrest
warrant. More important
is that no reason was offered by the
respondents in this regard.  Further that the fourth and fifth
respondents made an application
in terms of
section 43
of the
Criminal Procedure Act 51 of 1977
.
[32]
The applicant was arrested and released on bail on 1 August 2020. The
applicant appeared in the Hatfield
Magistrate court on 3 August 2020
on one charge of malicious damage to property and one charge
crimen
injuria
.  These charges are still pending and according to
the respondents the criminal court is the correct forum to deliberate
on
constitutionality of the arrest and the admissibility of the
evidence. It has argued that this court must be mindful of making a

preliminary finding in this regard.  I have already found that
this Court has jurisdiction to hear the application, however
what
must now be determined if it would be in the interests of justice to
do so.
[33]
A basic rule of fairness is that a person who will be adversely
affected by an act or a decision of
the administration or authority
shall be granted a hearing before he suffers detriment
[11]
.
Peach
sums up the
audi
rule
as follows:
[12]
“
The
audi alteram partem rule implies that a person must be given the
opportunity to argue his case. This applies not only to formal

administrative enquiries or hearings, but also to any prior
proceedings that could lead to an infringement of existing rights,

privileges and freedoms, and implies that potentially prejudicial
facts and considerations must be communicated to the person who
may
be affected by the administrative decision, to enable him to rebut
the allegations. This condition will be satisfied if the
material
content of the prejudicial facts, information or considerations has
been revealed to the interested party.
”
[34]
The requirement that in certain circumstances decision-makers must
act in accordance with the principles
of natural justice or
procedural fairness has ancient origins.  In general terms, the
principles of natural justice consist
of two component parts,
to
wit
; the first is the hearing rule, which requires
decision-makers to hear a person before adverse decisions against
them are taken.
The second and equally important component is the
principle which provides for the disqualification of a decision-maker
where circumstances
give rise to a reasonable apprehension that he or
she may not bring an impartial mind to the determination of the
question before
them.  The latter aspect is not relevant in this
matter.
[35]
The principles of natural justice are founded upon fundamental ideas
of fairness and the inter-related
concept of good administration.
Natural justice contributes to the accuracy of the decision on the
substance of the case.
The rules of natural justice help to
ensure objectivity and impartiality, and facilitate the treatment of
like cases alike.
Natural justice broadly defined can also be
seen as protecting human dignity by ensuring that the affected
individual is made aware
of the basis upon which he or she is being
treated unfavourably, and by enabling the individual to participate
in the decision-making
process.  The application of the
principle of natural justice has however proved problematic.
[36]
The challenge is always how to strike the right balance between
public and private interest.  Whilst
this court, in the
circumstances of this matter seems compelled to respond to the
vulnerability of the applicant facing the pervasive
power of the
Hawks, is also at the same time aware that the courts have to avoid a
situation where the unconstrained expansion
of the duty to act fairly
threatens to paralyse its effective administration.
[37]
In my respectful view, the public interest necessarily comprehends an
element of justice to the individual.
The competing values of
fairness and individual justice on the one hand and administrative
efficiency on the other hand, constitute
the public and the private
aspects of public interest. It seems plain to me that the principles
of natural justice are intended
to promote individual trust and
confidence in the administration.  They encourage certainty,
predictability and reliability
in government interactions with
members of the public, irrespective of their stations in life and
this is a fundamental aspect
of the rule of law.
Search, Seizure
and Privacy rights
[38]
Section 14(a) of the Constitution
[13]
specifically protects the right not to have one's person or home
searched. A person's home, it is widely accepted, constitutes
the
highest expectation of privacy, which reflects the old adage that the
home is a person's castle
[14]
.
[39]
The most important legislative provisions that
prima
facie
infringe on these rights are to be found in the
Criminal Procedure
Act
[15
]
. The right to enter
premises, search those premises and remove goods therefrom is a
significant invasion of the rights of an individual
and must
therefore be exercised within certain clearly defined limits so as to
interfere as little as possible with the rights
and liberties of the
person concerned
[16]
.
[40]
It is significant to note that no right is absolute and perhaps
applies more to privacy than any other
right. The balance is struck
in the Bill of Rights read together with legislation authorising
searches. The Bill of Rights confers
certain rights on individuals
but it also authorises the limitation of those rights in the
limitation clause. According to section
36 of the Constitution,
rights in the Bill of Rights may be limited by a law of general
application, provided that the limitation
is reasonable and
justifiable in an open and democratic society based on human dignity,
equality and freedom. Search and seizure
will therefore be
constitutional if it is authorised by a law of general application,
such as the
Criminal Procedure Act (which
in itself contains
reasonable requirements to be complied with before a search may be
conducted and which indicates how it must
be conducted).
[41]
Power of the police to enter premises in connection with state
security is dealt with in
section 25
of the
Criminal Procedure
Act
[17
]
and empowers a police
official to enter premises in connection with state security. If it
appears to a magistrate or justice from
information on oath that
there are reasonable grounds for believing that the internal security
of the Republic or the maintenance
of law and order is likely to be
endangered by or in consequence of any meeting which has been held or
is to be held in or upon
any premises within his area of
jurisdiction, or that an offence has been or is likely to be
committed or that preparations for
the commission of any offence are
being made or are likely to be made upon any premises within his area
of jurisdiction, he may
issue a warrant authorising a police official
to enter the premises at any reasonable time for the purposes of
carrying out such
investigations and taking such steps as such a
police official may consider necessary for the preservation of law
and order or
the prevention of crime
[18]
.
[42]
Entering of premises by a police official for purposes of obtaining
evidence is dealt with in
section 26
of the
Criminal Procedure Act.
If
a police official who is investigating an offence or alleged
offence reasonably suspects that a person who may furnish information

with reference to such an offence is on any premises, such a police
official may enter such premises without a warrant for the
purposes
of interrogating such a person and obtaining a statement from him,
provided that such a police official shall not enter
any private
dwelling without the consent of the occupier thereof
[19]
.
[43]
Since a search may also infringe upon the rights to dignity
[20]
and to bodily security, including the right against cruel, inhuman or
degrading treatment
[21]
, it
must be conducted consonant with those rights. In terms of
section 29
of the
Criminal Procedure Act the
search of a person must be
conducted with strict regard to decency and order.
[44]
The power to seize is limited to articles which are either involved
in, used during, or may provide proof
of the commission of an offence
in the Republic or elsewhere, or provide proof of the fact that the
commission of the offence was
planned. The State may in terms of
section 20
of the
Criminal Procedure Act seize
anything that:
(a)
is concerned or on reasonable grounds believed to be concerned in the
commission or suspected commission of an offence within
the Republic
or elsewhere;
(b)
may afford evidence of the commission or suspected commission of an
offence in the Republic or elsewhere; or
(c)
is intended to be used or on reasonable grounds believed to be
intended to be used in the commission of an offence
[22]
.
[45]
In terms of
section 21
of the
Criminal Procedure Act, unless
the
circumstances set out in
section 22
,
24
and
25
of the
Criminal
Procedure Act exist
an article may be seized only in terms of a
search warrant. If it appears to a magistrate or justice of the peace
that there are
grounds for believing that such an article is in the
possession or under the control of a person or upon any premises, and
such
information is provided to him or her under oath, a search
warrant may be issued. In order for the search to be lawful, the
premises
to be searched must be clearly and properly identified in
the warrant.
[23]
[46]
The applicants' case in the present application is that the search
and seizure of her home was unlawful
in that firstly, a warrant was
not obtained, she was not shown a warrant and that she did not
consent to the search and seizure
nor was it authorised by any
statutory provisions.  Furthermore, she avers that search and
confiscation of the electronic
equipment was unfounded as it did not
relate to the crime of
crimen injuria
and malicious damage to
property which was allegedly being investigated by the Hawks, in
connection with a conspiracy to murder
Mr Gigaba and that only her
cell phone was related to those charges. Further that the warrant of
arrest secured in terms of
section 43
of the
Criminal Procedure Act
was
accompanied by an affidavit which related to a crime of
“defamation of character” and not the crimes of
crimen
injuria
and malicious damage to property for which she is
currently facing charges for. Therefore, the warrant which was
belatedly relied
on, was also unlawful, both for procedural reasons
and by reason of flaws in the warrant itself.  The applicant's
case is
furthermore that the search, seizure and arrest was
accompanied by egregious conduct on the part of the Hawks in that she
was denied
legal representation because they informed her that it was
not an ordinary police matter. As she was not
au fait
with the
law she believed there ascertains to be true.  As a result, the
applicant avers, her statement and equipment was
taken as she
believed she had no choice and that the officer who took the
statement was also the commissioner of oaths. However,
upon seeking
legal representation her legal representatives are being denied
copies of the material seized as it has not been disclosed
in the
copies of the dockets that they have been provided with. Lastly that
she was treated in a degrading manner as she was not
even allowed to
enter her own bedroom alone and was followed to the bathroom, conduct
which the applicant avers invaded her rights
to privacy and dignity.
[47]
The respondents' notably in their case, firstly have not averred that
arresting the applicant in the
manner in which they did, was in terms
of
section 20
and principally under
section 22
of the
Criminal
Procedure Act 51 of 1977
to conduct a search and seizure operation at
the applicants' residence.
Section 22
specifically sets out the
circumstances in which articles may be seized without a warrant.
In any event, the respondents'
case proceeds, that section 17D of the
SAPS Act mandates the Hawks to investigate cases regarding conspiracy
to commit murder and
aver that section 17D(3) specifically permits
them to investigate any matter connected to the subject of its
pending investigations.
Further that the task team was appointed to
investigate a complaint of such nature made by Mr Gigaba, who also
informed them of
the other alleged crimes involving him and so they
were required to investigate them. It its significant to note that
the respondents
offered no explanation why a search warrant was not
obtained first and did not deny that the applicant’s version
that she
did not consent to the seizure of the articles as required
by
section 22
of the
Criminal Procedure Act.
[48
]
This Court is mindful that without a warrant and the consent of the
applicant to enter her premises, the
result that was that the Hawks
had license to search for and seize anything they considered
relevant. The respondents also remain
silent, particularly in regard
to the detail of the search and seizure operation and in particular
the alleged egregious conduct
on the part of the Hawks officials.
The question of the appropriateness of this court determining the
lawfulness of the search
and seizure operation rather than in the
magistrate's court where the criminal proceedings are pending, was
addressed in the heads
of arguments which were filed.  The
question remains whether it is appropriate for this court to
determine the application
and if so, why this court should exercise
its discretion by granting declaratory relief. In
Thint
(Pty) Limited v National Director of Public Prosecutions and
Others
[24]
concerned the validity of six warrants of search and seizure in terms
of
Section 29(5)
and (6) of the
National Prosecuting Authority Act 32
of 1998
, which had been executed.  The warrants were challenged
in two divisions of the High Court with varying results and were
ultimately
the subject of a consolidated appeal to the SCA which
upheld the warrants. The applicants then approached the
Constitutional Court
to have the orders of the SCA set aside.
Shortly after execution of the warrants, two of the subjects thereof
were indicted
to stand trial in the High Court on charges of
corruption.  The appeal to the Constitutional court threw up
many issues, the
first of which was whether it was in the interest of
justice to grant leave to appeal.  The court ultimately granted
leave
to appeal.  Langa, CJ's reasoning, on behalf of the full
Court in this regard, at paragraph 62 and 63, is instructive and I

will quote it in full:
"62.  The
prosecution argues that regardless of whether the applicants’
arguments bear reasonable prospects of success,
it is not in the
interest of justice to grant leave to appeal.  It bases this
submission on several grounds. First, this case
concerns "justice
in theory" not "justice in fact", because the
applicants have made no attempt to establish
that they have suffered
any actual prejudice, despite having had ample opportunity to do so.
Second, the applicants launched
these proceedings for one purpose
only, namely to prevent the state from using the seized items as
evidence against Mr Zuma and
the Thint companies in a subsequent
criminal trial.  They thereby are trying to circumvent the
application of Section 35(5)
of the Constitution, which is the way
the Constitution chooses to admit unlawfully obtained evidence.
This is particularly
invidious, they argue, given that the evidence
is incriminating of Mr Zuma and the Thint companies, and for that
reason it is of
great public importance that the truth emerges.
Third, this form of preliminary litigation unduly delays the
commencement
of criminal trials and, therefore, should be strongly
discouraged.  The trial court, rather than preliminary courts,
is best
placed to balance the varying public and private interests at
stake, namely the public and private interests in the emergence of

truth, the applicants' interests in their privacy and property and
the accused's persons fair trial rights.  Leave to appeal

should, therefore, be refused to allow the trial court to do so in
this case.
63.   There is
certainly a great deal of merit in these arguments but I do not agree
that it would be in the interest
of justice for leave to appeal to be
refused in these applications.  There are several reasons for my
conclusion.  The
first reason is that were this court to refuse
leave to appeal, the Supreme Court of Appeal decision that the
warrants and searches
and seizures were lawful, would stand and would
in all probability bind any subsequent trial court.  It would
follow that
the seized evidence would have been lawfully obtained and
Section 35(5) would have no application.  The relevant competing

interests would not fall to be balanced at all."
The Chief Justice when on to
state in paragraph 65:
"65.  I nevertheless
do agree with the prosecution, that this court should discourage
preliminary litigation that appears
to have no purpose, other than to
circumvent the application of Section 35(5).  Allowing such
litigation, will often place
prosecutors between a rock and a hard
place.  They must, on the one hand, resist preliminary
challenges to their investigations
and to the institution of
proceedings against accused persons.  On the other hand they are
simultaneously obliged to ensure
the prompt commencement of trials.
Generally, disallowing such litigation would ensure that the trial
court decides the pertinent
issues, which it is best placed to do,
and would ensure that trials starts sooner rather than later.
There can be no absolute
rule in this regard, however.  The
court's doors should never be completely closed to litigants.
If, for instance, a
warrant is clearly unlawful, the victim should be
able to have it set aside promptly.  If the trial is only likely
to commence
far in the future the victim should be able to engage in
preliminary litigation to enforce his or her fundamental rights.

But in the ordinary course of events and where the purpose of the
litigation appears merely to be the avoidance of the application
of
Section 35(5) or the delay of criminal proceedings, all courts should
not entertain that.  The trial court should then
step in and
consider together the pertinent interests of all concerned.  If
that approach is generally followed, the state
would be sufficiently
constrained from acting unlawfully by the application of Section
35(5) and by the possibility of civil and
criminal liability.
The nature and degree of unlawfulness of the search warrant, are
important factors to be borne in mind
for the purposes of a decision
under Section 35(5).  It is for this reason that the same court
should consider the unlawfulness
of the warrant and its impact."
[49]
Applying these principles to the present matter, it is clear that the
purpose of the relief sought
by the applicant is not to remove from
the court hearing the criminal trial, any opportunity to weigh up the
competing private
and public interests in admitting any of the
evidence found and seized in the search and seizure operation, if
indeed it was legally
obtained, but rather it is to have access to
copies of evidence in the docket which was not provided to her to
adequately address
the charges against her.  Secondly, that the
applicant alleges that the warrant was unlawful and as such is
entitled to engage
in litigation to enforce her fundamental rights
.
Following the reasoning of the Chief Justice that since
no court has yet made a
determination on the legality of the search and seizure operation the
trial magistrate in this matter will
not be constrained by the
finding of any other court in his or her judgment on this issue and
the admissibility of any evidence
so procured. This is especially so
in view of the alleged egregious conduct on the part of the Hawks and
the invasion of privacy
the applicant was subjected to when the Hawks
gained entry to the premises; her bedroom and or followed her to the
bathroom without
any warrant to do so.
Parallel
proceedings
[50]
Generally permitting parallel proceedings and risking inconsistent
decisions in multiple forums on substantially
the same dispute is
undesirable even where a single event triggered the actions. The
ultimate question in both these proceedings
is whether the arrest and
prosecution was lawful and constitutional. In a delicate balancing
act, it is the duty of the courts
to uphold and vindicate the
constitutional rights of the applicant to her good name but in this
particular case, which is unique
by its circumstances, it cannot have
the effect of precluding the Criminal Court from discharging duties
and responsibilities exclusively
assigned to it by the Constitution.
[51]
Resolving these disputes of fact through the hearing of evidence in
any trial-within-a-trial relating
to the admissibility of evidence,
is preferable to determining them on affidavit.  Any findings by
this court could, quite
conceivably, be the subject of an appeal or
even a series of appeals, the effect of which will be to further
delay the criminal
trial.  It is also not clear at this stage
whether the state will, indeed, seek to use any of the material it
obtained in
the search and seizure operation against the applicant.
It is conceivable that it might not, in which event there would have

been limited point in this court pronouncing on the legality of the
search and seizure operation at this stage.
[52]
What must also be taken into account is the desirability of the trial
magistrate presiding over the
criminal trial to do so without
constraints in the form of pronouncements from this court, which
encroaches on what evidence is
admissible before him or her. The
judgment in
Thint
supra
,
although landmark in the sense that it was a post-constitutional
examination of the principles to be followed when higher courts
are
presented with challenges to search warrants before the admissibility
of evidence so obtained is weighed in lower court proceedings,
by no
means adopted a novel approach. Sixty years ago in
Wahlhaus
and Others v Additional Magistrate Johannesburg and Another 1959
,
[25]
the Appellate Division confirmed the general approach later followed
in
Thint
by
the Constitutional Court.  In
Wahlhaus
it was held:
"While a superior court
having jurisdiction in review or appeal will be slow to exercise any
power, whether by mandamus or
otherwise, upon the unterminated of
course of criminal proceedings in a court below, it certainly has the
power to do so, and will
do so in rare cases where grave injustice
might otherwise result, or where justice might not by other means be
attained.
In general, however, it will hesitate to intervene,
especially having regard to the effect of such a procedure upon the
continuity
of proceedings in the court below, and to the fact that
redress by means of review or appeal, will ordinarily be available."
[53]
In
Mineral
Sands Resources v Magistrate for the District of
Vredendal
[26]
.
Rogers, J was faced with a review of a search warrant issued in terms
of
Section 21
of the
Criminal Procedure Act and
where he ultimately
pronounced on its validity, but issued a preservation order in
respect of the items seized pursuant to the
warrant.  Rogers, J
found that the warrant was invalid for various reasons and declared
its execution unlawful.  Discussing
the request by the
respondents for a preservation order, which ultimately he granted,
the learned judge stated as follows regarding
inappropriate
preliminary litigation at paragraph 215:
"I did not
understand Mr Paschke to press for the dismissal of the application
as constituting inappropriate preliminary litigation.
As Langa,
CJ observed in Thint, para 65, there is no absolute rule.  He
said that if a warrant is clearly unlawful, the victim
should be able
to have it set aside promptly.  If the trial is only likely to
commence far in the future, the victim should
be able to engage in
preliminary litigation to enforce its fundamental rights.  The
litigation which the courts should not
entertain, is litigation
having as its purpose to avoid the application of Section 35(5) of
the Constitution or to delay criminal
proceedings.  This is not
the case here.  MSR has not yet been charged.  No criminal
trial is imminent.  MSR
has raised points of substance.
The issue regarding the inspector's mandates requires resolution in
any event."
[54]
The factors in the present matter are slightly different in that the
applicant has been criminally
charged and criminal proceedings have
commenced, however the criminal trial is not imminent.
Significantly furthermore, the
applicant has requested the return of
the information that is not connected to the warrant of arrest or any
search and seizure
warrant. The applicant has stated that the only
device in connection with the offences she has been charged with is
her cell phone
which she had voluntarily offered to the Hawks upon
their arrival at her home and that the return of her communication
equipment
will in no way affect the criminal case pending.  This
Court cannot find that there are any indications that the purpose of

the present application may well be to avoid the application of
Section 35(5) of the Constitution.
[55]
The point in this matter is clear, there are compelling reasons why
these issues should be addressed
by this Court. There are serious
allegations of abuse of power and breach of privacy in that the
applicant’s home was searched
and items seized without her
consent all at the behest of her politically affiliated husband who
directed a domestic dispute to
the DPCI under the guise of a
conspiracy to commit murder against him. This Court has noted
significantly that whilst section 17D
does confer a mandate to the
Hawks, its mandate is limited to national priority offences and that
any suspected national priority
offence in terms of section 17D (2)
must be referred by the National Head in terms of section. There is
no evidence before this
Court that the Hawks complied with this
requirement. There were mere vague submissions by the respondents
that the National Head
of the Hawks Lieutenant Lebeya established a
task to deal with cases regarding “conspiracy to commit murder”
and that
General Ngwenya was appointed the head of the task team with
Captain Mavuso and Sergeant Ndabambi forming part of that team. What

the submissions by the respondents do not establish is whether or not
Lieutenant Lebeya sanctioned the operation into the investigation
of
the complaint laid by Mr Gigaba. There is also evidence before this
Court that there is or was a conspiracy to commit murder
against Mr
Gigaba or how, if at all, the applicant is connected to this
offence.  The only suggested link that the respondents
rely on
is the vague ascertain by Mr Gigaba that the members of the
counter-intelligence were called by the applicant to his home
and for
that reason he felt unsafe. The respondents furnished relatively
little information regarding the material seized or any
information
regarding the case of conspiracy to commit murder. The applicant
described the necessity of the return of the equipment
seized saying
"I am a registered student and my work is done through my
laptop, particularly because there are no longer contact
classes
during the period of Covid-19”.
[56]
It is common cause that the electronic devices were returned to the
applicant. What has sparked the
present application is that the
applicant is unaware of the extent of the material extracted from
these devices and stored on discs
1-6 as attested to by Mr Ndlovu, a
Sergeant in the Hawks digital forensic investigation in Mpumalanga,
in his affidavit annexed
to the section 43 application for an arrest
warrant.  The applicant submits that these discs do not appear
in the docket and
is uncertain why the Hawks of the Mpumalanga
division were even involved as the matter was not a high level
technical investigation.
Given the applicant’s grave and
detailed contentions, I consider that there is a particular
convincing case has been made
out for the Court to determine at this
stage the lawfulness of the warrant or the search and seizure
operation generally, rather
than leaving this to the trial court
should these issues indeed arise in the trial. For all these reasons,
I find that the applicant
has satisfied me that this Court should
intervene at this stage even before the criminal proceedings have
properly commenced. What
I must now consider whether the warrant of
arrest is unlawful and must be set aside.
Unlawfulness of
the warrant of arrest
[57]
Section 12(1)(a) of the Constitution provides that “everyone
has the right to freedom which includes
the right not to be deprived
of freedom arbitrarily or without just cause.
Section 13(3)(a)
of the
South African Police Service Act provides
that “a member of the
Police Service who is obliged to perform an official duty, shall,
with due regard to his or her powers,
duties and functions, perform
such duty in a manner that is reasonable in the circumstances”.
[58]
It is common cause that this application is pursuant to the
applicant’s arrest on 31 July 2020
following the issue of a
warrant in terms of
section 43
of the
Criminal Procedure Act issued
on 30 July 2020. It is trite that the onus rests on a defendant to
justify an arrest. In
Minister
of Law and Order and Others v Hurley and Another
[27]
at paragraph 65 Rabie AJ explained:
‘
An
arrest constitutes an interference with the liberty of the individual
concerned, and it therefore seems fair and just to require
that the
person who arrested or caused the arrest of another person should
bear the onus of proving that his action was justified
in law.’
[59]
As to whether the discretion is exercised properly the
following was stated in
Minister
of Safety and Security v Sekhoto
[28]
:
“
[39]
This would mean that peace officers are entitled to exercise their
discretion as they see fit, provided that they stay within
the bounds
of rationality. The standard is not breached because an officer
exercises the discretion in a manner other than that
deemed optimal
by the court.  A number of choices may be open to him, all of
which may fall within the range of rationality.
The standard is
not perfection, or even the optimum, judged from the vantage of
hindsight and so long as the discretion is exercised
within this
range, the standard is not breached.”
[60]
The following was laid down by Bertelsmann J in
Louw
v Minister of Safety and Security
[29]
at 186a -187e,  about an arrest where an offence listed in
schedule 1 has been committed:
‘‘
I
am of the view that the time has arrived to state as a matter of law
that, even if a crime which is listed in Schedule 1 of Act
51 of 1977
has allegedly been committed, and even if the arresting peace
officers believe on reasonable grounds that such a crime
has indeed
been committed, this in itself does not justify an arrest forthwith.
An arrest, being as drastic an invasion of personal
liberty as it is,
must still be justifiable according to the demands of the Bill of
Rights. . . . Police are obliged to consider,
in each case when a
charge has been laid for which a suspect might be arrested, whether
there are no less invasive options to bring
the suspect before the
court than an immediate detention of the person concerned. If there
is no reasonable apprehension that the
suspect will abscond, or fail
to appear in court if a warrant is first obtained for his/her arrest,
or a notice or summons to appear
in court is obtained, then it is
constitutionally untenable to exercise the power to arrest.’’
[61]
The question whether a decision is rationally related to the purpose
for which the power was given calls for an
objective enquiry.
Otherwise a decision that, viewed objectively, is in fact irrational,
might pass muster simply because the person
who took it mistakenly
and in good faith believed it to be rational. Such a conclusion would
place form above substance, and undermine
an important constitutional
principle. See:
Pharmaceutical Manufacturers Association of
South Africa: in re Ex parte Application of President of the RSA
[2000] ZACC 1
;
2000 2 SA 674
, 2000(3) BCLR 241 (CC) paragraphs [85]
to [86].
[62]   An
arrest pursuant to a warrant is
prima facie
lawful. The onus
of proving the wrongfulness of the arrest by showing that the warrant
was irregular, generally rests on the applicant.
A warrant in the
proper form and issued by a duly authorised official provides the
arresting officer with a defence.
[63]
Section 43
of the
Criminal Procedure Act, reads
:
"43 Warrant of arrest may
be issued by a magistrate or justice;
(1)
Any magistrate or justice may issue a warrant for the arrest of any
person upon the written application
of an attorney-general, a public
prosecutor or a commissioned officer of police-
a)    which
sets out the offence alleged to have been committed;
b)
which alleges that such offence was committed within the area of
jurisdiction of such magistrate or,
in the case of a justice, within
the area of jurisdiction of the magistrate within whose district or
area application is made to
the justice for such wa1Tant, or where
such offence was not committed within such area of jurisdiction,
which alleges that the
person in respect of whom the application is
made, is known or is on reasonable grounds suspected to be within
such area of jurisdiction;
and
c)    which
states that from information taken upon oath, there is a reasonable
suspicion that the person in respect
of whom the warrant is applied
for, has committed the alleged offence.
(2)
A warrant of arrest issued under this section, shall direct that the
person described in the warrant
shall be arrested by a peace officer
in respect of the offence set out in the warrant and that he be
brought before a lower court
in accordance with the provisions of
Section 50.
(3)
A warrant of arrest may be issued on any day and shall remain in
force until it is cancelled by
the person who issued it or, if such
person is not available, by any person with like authority, or until
it is executed."
[64]
The first issue is whether or not the applicant has established that
the Magistrate who
issued
the warrant acted
mala
fides
in
authorizing the warrant which is what she would
need
to prove according to the relevant authorities. In
May
v Union Government
[30]
, it
was
inter alia stated
‘
It
is not necessary for the issuing of the warrant that all the facts
necessary for a conviction be given under oath. It is only
necessary
that reasonable grounds appear from the affidavit. The official
requesting the warrant is not limited to the information
under oath
-when the suspicion is formed. The information under oath must be
assessed in the context of all the facts which have
been determined,
both those under oath and others. The official also does not have to
accept all the information under oath as
true: he or she can accept
some allegations and not others, even doubt them all He or she must
have information under oath and,
from that, in the correct context,
form a reasonable suspicion.”
[65]
The
bona
fide
exercise of a discretion by a magistrate or justice of the peace
under this section cannot be assailed in a court. See
Groenewald
v Minister van Justisie
[31]
with reference to
Shidiack
v Union Government
[32]
.
Although Groenewald is not fully supported in
Prinsloo
v Newman
[33]
at 500C and 505D it is nevertheless confirmed (at 500B-505C) that the
discretion the magistrate or justice of the peace has to
exercise
cannot, barring exceptional circumstances, be questioned in a court.
It is evident from the aforegoing that a Magistrate's
discretion,
exercised in good faith, is not justiciable in a court of law.
[66]
In
Minister
of Safety and Security v Sekotho and Another supra
[34]
,
contains a discussion on the role of peace officers and the
discretion they hold in respect of an arrest which would, with
respect,
finds equal application in determining the discretion of a
Magistrate.
"Harms DP (Nugent JA,
Lewis JA, Bosielo JA and K Pillay AJA concurring)
[34] These principles are in
substance no different from those formulated by Innes ACJ in Shidiack
v Union Government. Now it is
settled law that where a matter is left
to the discretion or the determination of a public officer, and where
his discretion has
been bona fide exercised or his judgment bona fide
expressed, the Court will not interfere with the result Not being a
judicial
functionary no appeal or review in the ordinary sense would
lie; and if he has duly and honestly applied himself to the question

which has been left to his discretion, it is impossible for a Court
of Law either to make him change his mind or to substitute
its
conclusion for his own, . . . There are circumstances in which
interference would be possible and right If for instance such
an
officer had acted mala fide or from ulterior and improper motives, if
he had not applied his mind to the matter or exercised
his discretion
at all, or if he had disregarded the express provisions of a statute
— in such cases the Court might grant
relief. But it would be
unable to interfere with a due and honest exercise of discretion,
even if it considered the decision inequitable
or wrong,”
[67]
In applying the principals
supra
the applicant in her has
failed to set out any basis upon which it could be inferred that the
Magistrate acted
mala fides
. On the face of it, it is
illustrated that the magistrate acted upon the evidence presented to
her in the form of an affidavit
by Sergeant Ndabambi. The magistrate
had no reason to disbelieve what was contained therein or foresee
that that Sergeant Ndabambi
was acting with malice or ulterior
motives. However, the
bona fides
of the Magistrate was not
placed in issue as there would not be legitimate basis for rejecting
that the Magistrate acted properly
and prudently in issuing the
warrant on the information placed before her and that such
information compiled with the provisions
of
section 43
of the
Criminal Procedure Act. She
had no reason to disbelieve or question
the veracity of the information given to her and she properly acted
in accordance with
that information. On the basis of the legal
proposition, in the absence of
mala fides
the warrant by the
Magistrate King was not wrongful, unlawful or
mala fides
.
[68]
What can therefore only be attacked is the duty of the disclosure by
the officer when the warrant was
applied for. This raises the next
question which is whether or not Captain Mavuso and Sergeant
Ndabambi’s decision to arrest
of the applicant was lawful or
unlawful and whether they are responsible for the malicious
prosecution of the applicant.
[69]    In
her founding affidavit the applicant alleges that when the two
officers arrived at her home on 22 July 2020
they advised her that
she was facing arrest for
crimen injuria
and malicious damage
to property. She claims that her arrest and detention had been
unlawful as the offence is not a priority crime
and should not have
involved the Hawks. Further that she was refused legal representation
and that the arrest itself was unnecessary
as the fourth and fifth
respondents had visited her house 10 days prior to conduct the
investigation on 21 July 2020 as stated
in his affidavit in support
of the warrant of arrest. She avers that it was unclear why her
arrest became crucial only on 30 July
2020, ten days after the
commission of the offence and that her attendance at court could have
been secured by other means. The
applicant also further contends that
the entire arrest was orchestrated to obtain unlawful access to her
information which was
an invasion of her privacy.
[70]
The applicant submits that she was not shown a warrant of arrest and
was merely informed by Captain Mavuso
or Sergeant Ndabambi of the
charges against her. She further testified that her constitutional
rights were violated as she was
forced to make a statement without
legal representation. She also alleges that the docket pertained to
crimen injuria
and assault but the affidavit marked A3 by
Sergeant Ndabambi states “defamation of character” which
is untrue coupled
with the nonsensical explanation about the text
message which she sent to Mr Sibiya which the Hawks were already in
possession
of when they first arrived her home. The respondents are
silent on these allegations save to mention that they are mandated in
terms of Section 17D of the SAPS Act to investigate a conspiracy to
murder and any subject matter related to pending investigations
such
as the complaints laid by Mr Gigaba involving the applicant as
previously discussed in this judgment.
[71]
In
Minister of Safety and Security v Sekhoto supra
, the
Supreme Court of Appeal did to some extent curb the approach adopted
by the High Courts in assessing whether the arrest is
justified when
a summons could have been used. However, the court stated that where
the case is trivial, an arrest would clearly
be rational. The SCA
went on to say the following:
"What I have
said must not be understood as conveying approval of the use of
arrest where there is no urgency and the person
to be charged has a
fixed and known address; in such cases, it is generally desirable
that a summons be used".
[72]
The evidence in this case is clear that the whereabouts of the
applicant were known as the Hawks arrived
at the applicant’s
home and interrogated her. No information was forthcoming from the
respondents why an arrest in the manner
that it was conducted was
necessary or imminent.
[73]
Notably in this case the respondents have not advanced any arguments
regarding the validity or defectiveness
of the warrant in its
defence. Before leaving this topic there is an observation that needs
to be made. The police have a duty
to carry out policing in the
ordinary way. They have no business setting out to turn an arrest
into a showpiece. When executing
a warrant of arrest, the police are
obliged to do so with due regard to the dignity and the privacy of
the person being arrested.
In
Independent
Newspapers Holdings Ltd v Suliman
[35]
that to allege that a person has been arrested does not imply that he
or she is guilty, but it does imply that there is a reasonable

suspicion that he or she has committed the relevant offence, which is
itself defamatory. In that case the majority held that before
the
suspect is brought before a court it is generally not in the public
interest or of public benefit that the identity of the
arrested
suspect should be disclosed, even if the allegation is true. But once
the suspect has been brought before a court his
or her identity may
be published with impunity.
[74]
In
Minister
of Safety v Sekotho and Another supra
[36]
the court discusses
section 40(1)
of the
Criminal Procedure Act
(arrest
without a "warrant) as opposed to
section 43
(arrest
with a warrant), but the principles seem to be equally applicable.
The Court reaffirmed that an arrest is
infraudem
legis
when the arrestor has used a power for an ulterior purpose, but a
distinction must be made between the object of the arrest and
the
arrest or motive - ‘'object relevant while motive is not”
[75]
Courts have sometimes interfered to protect an injured party against
an abuse of power, example, in
those well recognised cases in which
powers, given to public bodies to be used for certain purposes, are
wrongly used by them to
achieve other purposes. See
Sinovich
v Hercules Municipal Council
[37]
,
to profess to make use of a power which has been given by statute for
one purpose only, while in fact using it for a different
purpose, is
to act in
fraudem
legis
,
see also
Van
Eck and Van Rensburg v Etna Stores
[38]
.
Thus, where a warrant of arrest is requested under the pretext that
it is acquired for a legitimate purpose while in fact the
intention
is not to use it for that purpose, but for another unauthorized
purpose such person acts
mala
fide
and in
fraudem
legis
.
See
Minister
van die SA Polisie v Kraatz
[39]
.
In
Fraudem Legis
[76]
In fraud of the law; “A transaction is in
fraudem
legis
when it is designedly disguised so as to escape the provisions of the
law, but falls in truth within these provisions
[40]
”.
In such cases the important point is “not the interpretation of
the law as the interpretation of the transaction
[41]
”
. See also
R
v Gillet
1929 AD 364
; McAdams v Fiander’s Trustee
and
Bell
1919 AD 227
.
As to the principles to be applied in determining whether a
transactions See
Wills’s
Principles of South African Law
[42]
.
[77]
It appears in this matter that the arresting officers abused their
powers and position as members of
the Hawks presumably to avenge a
wrong or perceived wrong as complained and alleged by Mr Gigaba and
not for any lawful purpose
and was accordingly
infraudem legis
.
The warrant was obtained for an ulterior motive. The argument of the
respondents that they were investigating a conspiracy to
commit
murder against Mr Gigaba is not sustainable in light of the fact they
have alluded no further information on this alleged
conspiracy or how
the charges against the applicant are connected to it. There is also
no evidence of this in the docket and takes
the matter no further. It
is clear that this is in fact a domestic dispute between two
prominent members of society, however the
offences are not deserving
of the high priority of the Hawks and the involvement of the Hawks
itself speaks to the abuse of power
by Mr Gigaba as a former Minister
in using the State administrations for his own personal benefit with
an intention to intimidate
his wife in a domestic spat. The scourge
and dominance of patriarchy in our society must be pierced and
women’s right to
fair and equal treatment must be protected.
[78]
I have already found that the warrant itself was properly authorised
as already indicated and cannot
be set aside with regard to any
deficiencies relating to the bona fides of the Magistrate. On the
respondents own version, despite
the warrant being issued on a
weekday 30 July 2020, they chose to wait until Friday afternoon on 31
July 2020 to execute the same.
Again the respondents have offered no
plausible explanation to this court why if the applicant’s
actions were as threatening
as they alleged, therefore the only way
to secure her attendance at court was through a warrant of arrest, it
then waited an entire
day after obtaining the warrant to actually
arrest her. If nothing else, this Court is of the view that this only
further demonstrates
the abuse of power by the fourth and fifth
respondents who were called by Mr Gigaba. Their actions ensured that
the applicant could
not be taken immediately upon execution of the
warrant and apply for bail, with the hopes that she would spend the
weekend in a
jail cell in the middle of winter during a pandemic.
[79]
The actions of the fourth and fifth respondents in obtaining the
warrant of arrest upon furnishing
information about the
crimen
injuria
and malicious damage to property to the Magistrate and executing the
same clearly constitutes an abuse of rights, when there is
no link
between those crimes and that crime of conspiracy of murder it
allegedly was initially investigating.  There is no
explanation
why the docket was not returned to the Brooklyn police to take up the
matter further and to them to secure the arrest.
Although the warrant
was properly issued their conduct tainted their ulterior motives and
as such unlawfulness of the execution
as echoed by
Fourie
J in Brown and Another v Director of Public Prosecutions and
Others
[43]
when he said;
"The question, however,
remains whether the execution of the warrant in regard to 1SI
applicant on 9 May 2008 constituted a
lawful arrest Put differently,
is there merit in the contention of the 1st applicant that there was
no need for the 2nd respondent
to have had him arrested, as his
attendance at Court could have been secured by less intrusive
measures, such as warning or summoning
him to appear in Court on
these new charges? In this regard I (sic) incline to the view that,
even if a warrant for the arrest
of suspect has been lawfully
obtained in terms of
section 43
of the
Criminal Procedure Act, this
in itself does not justify an arrest to secure the attendance of the
suspect in Court... Put differently the conduct of the person

effecting an arrest should not constitute an abuse of the right given
to such person to effect the arrest”
[80]
I am satisfied that the evidence before me demonstrates that the
fourth and fifth respondents acted
with malice, in that their actions
appeared to have been motivated by an abuse of power by a former
minister and member if the
Executive. There is no evidence that an
investigation was conducted regarding a conspiracy to commit murder
of Mr Gigaba and the
respondents have failed to give any evidence to
gainsay the applicant’s version.
[81]
Based on the evidence as tendered, the applicant has discharged the
onus resting upon her to establish
that despite the execution of
warrant of arrest by the fourth and fifth respondents was wrongful
and unlawful and that they set
in motion her prosecution.
[82]
In the result the following order is made:
1.
The application is
granted on an urgent basis.
2.
The decision of the
fourth and fifth respondents to apply for the warrant of arrest of
the applicant is unlawful.
3.
The decision to
execute the warrant of arrest by the fourth and fifth respondents is
unlawful.
4.
The confiscation of
the applicant’s information and communication technology
equipment is unlawful.
5.
The respondents are
ordered to restore all information unlawfully removed from
applicant’s ICT equipment.
6.
The third, fourth
and fifth respondents are directed to return the information which
was downloaded from electronic gadgets of the
applicant by the
respondents, including the information contained in Disc 1 to Disc 6
referred to forthwith.
7.
The costs of this
application are to be borne by the third, fourth and fifth
respondents on an attorney and own client scale.
SARDIWALLA J
JUDGE OF THE HIGH
COURT
APPEARANCES
Date
of hearing

:           15
September 2020
Date
of judgment

:           11
February 2021
Applicant’s
Counsel

:           DC
Mpofu Sc
TN Ngcukaitobi SC
Applicant’s
Attorneys

:           Victor
Nkhwashu Attorneys
Respondent’s
Counsel

:
D.J
Joubert SC
H.A Mpshe
Respondent’s
Attorneys

:           State
attorney Pretoria
[1]
(2013) 34 ILJ 135 (LC)
at para 17. See also Bumatech (supra) at para 33; Bethape v Public
Servants Association and Others [2016]
ZALCJHB 573 (9 September
2016) at para 53.
[2]
(13535/2016) [2017]
ZAKZDHC 33 at paragraph 27
[3]
2010 (1) SA 238
(CC)
[5]
2013 (3) BCLR 251 (CC)
[6]
(CCT 48/10)
[2011]
ZACC 6
;
2011 (3) SA 347
(CC) ;
2011 (7) BCLR 651
(CC) (17 March
2011)
[7]
[2006] ZASCA 105
;
2007
(1) SA 240
(SCA).
[8]
2015
(1) BCLR 1 (CC); 2015 (2) SA 1 (CC)
[9]
http://pmg-assets.s3-eu-west-1.amazonaws.com/140917saps.pdf
[10]
Ademiluka,
“
Patriarchy
and Women Abuse,” OTE 31/2 (2018): 339-362
[11]
See
De Smith, SA (1955) “The right to a hearing in English
Administrative Law” 68(4) Harvard Law Review 569-599, 569.
[12]
See Peach, VL (2003)
“The application of the audi alteram partem rule to the
proceedings of commissions of inquiry”
Thesis (LL.M. (Public
Law))—North-West University, Potchefstroom Campus (Accessed at
http://hdl.handle.net/10394/58), 8.
[13]
Constitution
of the Republic of South Africa 1996. S 14 provides as follows:
"Everyone has the right to privacy, which
includes the right
not to have – (a) their person or home searched; (b) their
property searched; (c) their possessions
seized; or (d) the privacy
of their communications infringed."
[14]
R v Silveira (1995) 97
CCC (3d) 450 (SCC).
[15]
Cheadle, Davis and
Haysom South African Constitutional Law 51
[16]
Cited National
Director Public Prosecutions v Mahomed 2008 (1) SACR 309 (SCA).
[17]
Act 57 of 1977
[18]
S 25
Criminal
Procedure Act
[19
]
S 26
Criminal
Procedure Act. Minister
van Polisie v Gamble
1979 (4) SA 759
(A) at
764D-F.
[20]
S 10
Constitution of
the Republic of South Africa 1996 (hereinafter referred to as the
Constitution)
[21]
S 12 (1) Constitution
[22]
S 20
Criminal
Procedure Act.
[23
]
Toich v The
Magistrate, Riversdale 2007 (2) SACR 235 (C).
[24]
[2008] ZACC 13; 2009
(1) SA 1 (CC)
[25]
(3) SA 113 (AD)
[26]
[2017] 2 ALL SA 599
(WCC)
[27]
1986 (3) SA 568 (A)
[28]
(2011 (5) SACR 367
(SCA)
[29]
2006 (2) SACR 178 (T)
[30]
1954 (3) SA 120
(N) at
125B confirmed in Minister van Polisie v Kraatz supra at 504H)
[31]
1973 (3) SA 877
(A) at
883H
[32]
1912 AD 642
at 651
[33]
1975 (1) SA 481 (A)
[34]
at paragraph 34
[35]
[2004] 3
All SA 137 (SCA).
[36]
2011 (5) SA 367
(SCA)
(also at
[2011] 2 ALL SA 157
(SCA)) -
[37]
1946 AD 783
[38]
1947 2
S 984
(A)
998
[39]
1973 3 SA 490 (A) 508
[40]
Dadoo Ltd v
Krugersdorp Municipal 1920 AD 547
[41]
ibid 544
[42]
6ed 319 436 525
[43]
2009 (1) SACR 218
(CPD) at 226 J - 227 C. See also Theobald v Minister of Safety and
Security
2011 (1) SACR 379
(GSJ) at 406 paragraph 320