About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2019
>>
[2019] ZAWCHC 91
|
|
B.K and Another v Minister of Police and Others (22575/2018) [2019] ZAWCHC 91; 2020 (1) SACR 56 (WCC) (21 June 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
SOUTH
AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO
: 22575/2018
DATE
:
2019.06.21
In
the matter between
B
K 1st
Applicant
S
K 2nd
Applicant
and
THE
MINISTER OF
POLICE 1st
Respondent
THE
DIRECTORATE FOR PRIORITY
CRIME
INVESTIGATION 2nd
Respondent
MZIYANDA
MTI 3rd
Respondent
JUDGMENT
BOZALEK,
J
:
The
applicants seek an order against The Minister of Police as the first
respondent, The Directorate for Priority Crime Investigation,
the
second respondent and Mr Mziyanda Mti, as the third respondent,
setting aside a search warrant issued by a member 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.
The
applicants are a married couple who live in Kenilworth. The
first applicant is a general medical practitioner, practising
from
home, and his wife is a chef. The background to this matter is
that on 17 October 2018 members of the second respondent,
also known
as the Hawks, and to whom I shall refer as such, arrested the first
applicant outside the Kenilworth Post Office where
he appears to have
shortly before despatched a parcel containing two Venteze inhalers to
an address in the United States of America.
The
Hawks then drove the first applicant in his vehicle to his nearby
residence to which they gained entry using his remote control.
The contingent of Hawks spent the next eight or so hours at the
dwelling which they searched and from which they removed a host
of
items. According to a receipt which the Hawks issued these
items comprised bags of medicine, envelopes, files, a doctor's
case
and a variety of electronic devices, including a cell phone, a
laptop, computer towers, flash-drives and a CCTV unit.
All
these electronic devices, save for one, have been returned to the
first applicant. But the Hawks first made a mirror
image of the
data contents and have retained this. The applicants seek the return
of the mirror image or images as well.
The
one electronic device not returned was the CCTV unit which apparently
records all persons entering the property. The first
applicant
will not furnish the Hawks with the password to access that device
and they are holding it whilst they seek to gain access
to it by
other means. A further items seized was an Audi A4 vehicle in
which the first applicant drove to Kenilworth Post
Office.
It
is common cause that the first applicant did not consent to the entry
into and the search of his property nor, obviously, to
the removal of
the various items which were seized. According to him the
search commenced over his objections and later those
of his attorney,
who insisted that the Hawks first obtain a search warrant.
Shortly after 6 p.m. the Hawks did obtain a search
warrant.
According to them they held their search and seizure operation in
abeyance while waiting on this warrant in the
face of the insistence
by the first applicant's attorneys that such a warrant was necessary.
Not
only was the first applicant arrested but also the second applicant.
They appeared in court the following morning to face
charges of
contravening certain provisions of The
Medicines and Related
Substances Act 101 of 1965
and were released on bail. These
charges are still pending and according to the respondents will
comprise charges under the
aforesaid Act and the
Drugs and Drug
Trafficking Act 140 of 1992
. Although no charge sheet form part
of the papers before me, at various points in the opposing affidavits
the respondents
make reference to the first applicant's alleged
failure to produce a permit entitling him to export specified
medicines in terms
of
Section 22(11)(a)
of Act 101 of 1965.
At
other points, the first applicant's contention that he has a current
valid permit to merely dispense such medicines is also disputed.
In this regard, the respondents' opposing affidavits also reveal that
the first applicant's arrest was the culmination of an investigation
following complaints or information that a person, said to be the
first applicant, was dispatching large numbers of parcels containing
scheduled medicines to overseas addresses from various post offices
in Cape Town. The only return address these parcels had,
were P
O Box numbers in Johannesburg or Durban which, on investigation,
proved to be non-existent with the result that the parcels
were not
traceable back to their sender.
In
a nutshell, the applicants' case is that the search and seizure of
their home was illegal in that they did not consent thereto
and nor
was it authorised by any statutory provisions. Furthermore,
they aver, the search 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 over
and above these considerations the search and seizure was accompanied
by egregious conduct on the part of
the Hawks. As a result, the
applicants aver, all the articles and material seized should be
returned to them irrespective
of whether it may otherwise constitute
evidence in the forthcoming criminal trial.
The
respondents' case is, firstly, that having arrested the first
applicant in the circumstances which they did, they were entitled
in
terms of Section 20 and principally
Section 23(1)(a)
of the
Criminal
Procedure Act 51 of 1977
to conduct a search and seizure operation at
the applicants' residence.
Section 23
sets out the
circumstances in which articles may be seized upon the arrest of a
person. In any event, the respondents' case
proceeds, the
search and seizure operation was at the insistence of the applicants
and their attorneys only conducted after a search
warrant was
obtained earlier on the evening of the applicants' arrest.
The
respondents concede that there were flaws in the warrant, most
notably that the charge or charges being investigated were not
specified therein but only the Acts or statutes which I have already
referred to and, secondly, the warrant did not specify what
articles
or documents could be searched for and seized with the result that
the Hawks had license to search for and seize anything
they
considered relevant.
As
a backstop, so to speak, the respondents brought a
counter-application seeking a so called preservation order in terms
of which
the Court was asked in terms of Section 172(1)(b) of the
Constitution to direct that all those articles not returned to the
applicants
be preserved in the custody of the Registrar. That
provisional order, it was envisaged, would remain in force until the
judgment
in the criminal trial or any appeal arising therefrom.
The counter-application was opposed by the applicants.
The
affidavits in this matter run to some 300 pages. There are many
disputes of fact, 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. 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 initially not addressed either in the
affidavits or in the heads of arguments
which were filed.
Counsel were accordingly requested to furnish a note concerning
whether it was appropriate for this court
to determine the
applications and if so, why this court should exercise its discretion
by granting declaratory relief.
Counsel
for both parties, at short notice, produced helpful notes on these
aspects referring to and providing leading cases on the
subject.
The leading case is, I would venture,
Thint
(Pty) Limited v National Director of Public Prosecutions and Others
2009 (1) SA 1
(CC). That case ultimately 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
Concourt 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."
Applying
these principles to the present matter, one notes firstly, that the
effect, if not the purpose of the relief sought by
the applicants,
would be 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 illegally
obtained.
Secondly, no court has yet made a determination on the legality of
the search and seizure operation and thus the
trial magistrate 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.
There
are further considerations why the issues raised in this application
are best left to the trial magistrate. Certainly
as regards the
detail of the search and seizure operation and the alleged egregious
conduct on the part of the Hawks, there are
numerous disputes of
fact; to mention but a few, whether the first applicant was subjected
an assault when the Hawks gained entry
to the premises; whether the
search commenced before the warrant was obtained and whether the
applicants' 14 year old daughter
was treated by the Hawks in a manner
that traumatised her.
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, as the applicants would
have this court do. 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 applicants. 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.
What
must also be taken into account is the desirability of the trial
magistrate presiding over the criminal trial without constraints
in
the form of pronouncements from this court, which touch on the
question of what evidence is admissible before him or her.
The
judgment in
Thint
, 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 (3) SA 113
(AD), 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 exercised 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."
In
that matter, the appellant sought an order reversing the trial
magistrate's decision in criminal proceedings not to grant
an
exception to the charge and to declare the indictment invalid.
Various
other post-constitutional matters were raised in argument and warrant
some consideration. Mr King, who appeared on
behalf of the
applicants, placed some reliance on
Mineral Sands Resources v
Magistrate for the District of Vredendal
[2017] 2 ALL SA
599
(WCC). 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."
The
factors in the present matter are somewhat different. The
applicants have been criminally charged and the criminal trial
is in
the offing. Significantly furthermore, the applicants resisted
the notion of a preservation order being made which
will leave over
the question of the admissibility of evidence seized for later
determination. On their behalf it was contended
that all material
seized must be returned to the applicants, even if this placed them
in a position where they could destroy it
and render questions of its
admissibility moot. There are, moreover, further indications
that the purpose of the present
application may well be to avoid the
application of Section 35(5) of the Constitution. I will refrain from
enumerating those and
rather leave the trial magistrate to draw his
or her own conclusions in this regard.
As
far as the search warrant is concerned, there are indeed clear flaws
in it, not least the failure to set out the charges being
investigated and to specify the documents or articles which the Hawks
could search for and seize. Ms Williams, on behalf
of the
respondents conceded these flaws, although she stopped short of an
outright concession that the warrant was invalid.
However, even
if this court were to make such a finding, there are other grounds
which might render the search seizure operation
lawful. Most
notably, the provisions of Section 23(1)(a) which permits a
peach officer, on the arrest of any person,
to search such person and
seize any article which is found "in the possession of or in the
custody or under the control of
the person arrested".
Whether
the provisions of Section 23(1)(a) could be used to justify a search
of the first applicant's residence, when he was arrested
elsewhere,
depends on how liberally one interprets the section’s reference
to items "in the custody or control of the
arrested person",
i.e. does this extend to sites removed from where the person is
arrested. I venture no opinion on
this issue, but note that a
narrow interpretation, i.e. the search being confined solely to the
person or immediate surroundings
of where that person is arrested, is
not self-evident.
In
Goldberg v DPP
2014 (2) SACR 557
(WCC) at para 36, Rogers, J,
dealing with a situation not entirely dissimilar to the present
matter, stated as follows:
"In
the related civil proceedings, a submission was made on behalf of the
appellant that Section 23(1) of the CPA only permits
a peace officer
to seize items found on the person of the arrested individual.
I see no reason to give Section 23(1)(a) such
a narrow meaning.
The Section refers to an item found "in the possession of or in
the custody or under the control of"
the arrested person.
Clearly an item can be in a persons' possession or in his custody or
under his control without being
on his person."
The
point is, however, that any setting aside of the search warrant by
this Court will still not bring it directly to the point
where it
must consider whether a preservation order should be granted.
Other legal bases for a lawful search and seizure
operation may well
arise and there is, in my view, no compelling reason why these issues
should not be addressed by the trial magistrate
in the event that the
state should seek to introduce as evidence any material seized in the
search and seizure operation conducted
on 18 October 2018.
One
final consideration to be weighed in considering whether this Court
should determine, in these proceedings, the lawfulness of
the search
and seizure operation or the warrant, is the principle that a
preservation order should not be granted where an applicant
identifies specific items, the seizure of which constitutes a serious
breach of privacy that affects the inner core of the personal
or
intimate sphere, or where there has been some particular egregious
conduct in the execution of the warrant.
It
is so that this Court is not at the stage of considering whether to
grant a preservation order, since I am inclined to leave
that issue
to the determination by the trial court, should it arise in the
trial. However, if I follow this approach, in effect
the evidence
found and seized is preserved pending the trial. Thus it is, in
my view, not inappropriate to consider the factors
just mentioned.
As I have indicated, the issue of egregious conduct is best
determined through the mechanism of a trial-within-a-trial,
given the
many disputes of facts in this area.
As
regards the seriousness of the breach of privacy. It is so that
the applicants' residence was searched, but the indications
are that
this was limited to the first applicant's medical practice and that
what was seized was primarily medicines, data and
records which
presumably relate thereto or to medicines being dispensed. The
applicants' furnished relatively little information
regarding the
material seized, although the first applicant did refer to "hardcopy
patient files, plus 30 yellow files containing
personal documents".
The first applicant describes the material seized as "all the
records and supplies that I
depend upon to conduct not just my
practice, but my wife's business".
It
is common cause that to the extent that this material was stored on
any electronic device these have been returned to the applicants.
Given the relatively paucity of these descriptions, I consider that
no 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.
One
final argument requires addressing, namely, Mr King's assertion that
the Court must intervene, since the trial magistrate lacked
the
powers to restore the
status quo ante
prior to the search and seizure operation should he or she determine
that to be the course to be followed. I do not consider
that
this argument has merit. Sections 31, 31, 33 and in particular
34 of the
Criminal Procedure Act make
extensive provisions for the
disposal of articles which have been seized, either where criminal
proceedings have or have not been
instituted. Specifically,
Section 34(1)
authorises the judicial officer, at the conclusion of
criminal proceedings, to order that seized articles be returned to
the personal
persons from whom they were seized if such person or
persons may lawfully possess such articles. With the benefit of their
legal
representation, I see no reason why the applicants should not
be able to have the material seized from their residence and not thus
far returned, restored to them immediately upon conclusion of the
trial should they be entitled to this in law.
For
all these reasons, I consider that the applicants have failed to
satisfy me that this Court should intervene at this stage and,
even
before the criminal proceedings proper have commenced, set aside the
search warrant and order the return of all those items
seized and not
yet restored to the applicants. It follows that the issue of a
preservation order does not arise and that
as a whole, the
application falls to be dismissed.
This
leaves the question of costs. On behalf of the respondents, Ms
Williams contended that the respondents should be awarded
their costs
in the event that the main application were to be dismissed. I
should mention I see no need to deal with the
counter-application,
since although not expressly described as such, it is conditional
upon the main application succeeding.
Mr
King, on the other hand, disagreed, citing the fact that the
applicants came to court to vindicate their constitutional rights
and, on the
Biowatch principle
,
should not be mulcted in costs, even though unsuccessful. He
also relied on the fact that the application had achieved some
success in that the respondents have now undertaken to return to the
first applicant the Audi A4 vehicle which he had driven to
the
Kenilworth Post Office shortly prior to his arrest and which had been
seized by the Hawks and held by them since 18 October
2018.
I
should add that the basis upon which this seizure was justified by
the respondents initially, was that it could in due course
be
forfeited to the state in terms of
Section 35
of the
Criminal
Procedure Act as
being a vehicle "used for the purpose of or in
connection with the commission of the offence in question".
After
I expressed some scepticism during argument of the basis for
any such forfeiture, given the purely incidental use of the vehicle
in the commission of any offence which may be proved, Ms Williams
received instructions to tender the return of the vehicle to
the
first applicant. This, I consider, was a most sensible
instruction, one which should never have been necessary in the
first
place.
It
is indeed so that the applicants have sought to assert important
constitutional rights to privacy and the right not to be subjected
to
unlawful search and seizures. There are clear indications of
flaws in the search warrant at least partly relied upon by
the
Hawks. No finding has yet been made that the search and seizure
operation was lawful or that evidence derived therefrom
may be used
against the applicants. The applicants have succeeded,
indirectly at least, in having their motor vehicle restored
to them
by virtue of this application.
Taking
these and other relevant factors into account, I consider that the
most appropriate outcome should be that each party bear
their own
legal costs.
In
the result the following order is made:
1.
The application is dismissed.
2. There will be no order
as to costs.
__________________
BOZALEK, J
JUDGE OF THE HIGH COURT
DATE
:
21 JUNE 2019