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[2018] ZANCHC 74
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Van Rooyen and Another v Minister of Police and Others (1314/2017) [2018] ZANCHC 74; 2019 (1) SACR 349 (NCK) (26 October 2018)
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Note:
Certain
personal/private details of parties or witnesses have been
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
CASE
NO: 1314/2017
In
the matter between:
MATTHYS
MACHIEL BASSON VAN ROOYEN
First
Applicant
MARIANE
ELIZABETH VAN ROOYEN
Second
Applicant
And
THE
MINISTER OF
POLICE
First
Respondent
LT.
COL. W
VERMEULEN
Second
Respondent
COL.
N VAN
HEERDEN
Third
Respondent
Judgment:
O’Brien AJ
Heard
on:
07
September 2018
Delivered
on:
26
October 2018
JUDGMENT
O’BRIEN AJ
1.
The
applicants who are married resides at 6 Schoeman Street, Kuruman,
Northern Cape (“the premises”). On 2 December
2016 the
second respondent in possession of a search and seizure warrant (“the
warrant”) issued and authorised by the
third respondent under
s21 of the Criminal Procedure Act 51 of 1977 (“the CPA”)
executed the warrant at the premises.
The second respondent assisted
by eight police officials searched the premises in the presence of
the applicants and their attorney.
2.
During
the search, the police seized documentation; cell phones; cheque
books and computer equipment. Weapons and ammunition were
also seized
but returned to the applicants. All the items seized are described in
Annexure “
A
”
to the notice of motion.
3.
After
the seizure of the items, the applicants were arrested and appeared
in court.
4.
The
applicants approach the court for an order setting aside the warrant
which authorised the search and the execution thereof at
their
premises on 2 December 2016. They also seek a spoliation order in
respect of the items seized on the same date.
5.
As
matters progressed, the respondents on 19 July 2017 filed a
counter-application. If the court should rule that the items seized
on 2
nd
December 2016 be returned to the applicants, the respondents should
be allowed to approach a magistrate or justice in accordance
with
s21(1) of the CPA for a new warrant of search and seizure.
Furthermore, pending the application for a new warrant the articles
that were seized on 2 December 2016 be reserved by the first and
second respondents.
En
passant
the respondents applied for the admission of further affidavits with
regard to the main application which was not opposed by the
applicants.
Background
6.
Col
Perumal (“Perumal”) is attached to the Directorate for
Priority Crime Investigation (“the DPCI”), Northern
Cape,
specifically the Serious Commercial Crime Investigation Unit. He was
the deponent in the application for the warrant under
s21 of the CPA.
7.
In
his affidavit, he states that previous conventional law enforcement
efforts by the Northern Cape Gambling Board proved to be
unsuccessful. The focus was mainly on illegal gambling machines
rather than illegal gambling activity. Due to their unsuccessful
law
enforcement efforts, the police decided to form an intelligence-led
operation to address identified illegal gambling at premises.
8.
He explains
that major problems exist within the illegal gambling industry which
impacts negatively on the legal gambling industry
and as such has an
impact on the economy of the Northern Cape. This is due to the
organised nature of illegal online gambling which
is taking place at
several unlicensed premises where networks are established between
alleged perpetrators and individuals in law
enforcement. This creates
corrupt practices. As a result, income is not declared, and the
fiscus is robbed of revenue.
9.
The police
identified various premises spread over the Northern Cape where
online illegal gambling activities took place.
10.
Concerning
the applicants, he was in possession of a sworn statement from a
police agent who implicates the applicants and their
son. The first
applicant paid monies to the police agent when the latter gave
information to the former of planned police actions
against illegal
gambling activities at the premises of the applicants. At the time
when Perumal applied for the search warrant,
the agent continued to
participate with the first applicant by giving him information about
police operations. The first applicant
believed that the agent was a
corrupt police official.
11.
During the
operations by the police agent s252A of the CPA was used as a
mechanism to infiltrate any illegal online gambling syndicate.
12.
Perumal
further explains that online gambling is done through the internet
where clients pay to get a numerical number from a cashier
who works
at the entrance door of the illegal online gambling premises. After
receiving payment, the cashier will provide a number
to the client
who will then choose a computer on which to gamble. To start the
gambling activity, the client has to punch in the
number provided
into the system after which credit is paid and made available to the
client. There are several gambling programmes,
and after choosing the
particular programme, the client punches in the amount that he wishes
to bet, then chooses how many pay
lines he wishes to activate, and
then presses the spin button on the screen. If the symbols on the
screen line up, the client wins
an amount of money that will be added
to the balance available on the screen. When the client finishes
gambling, he calls a cashier
at the counter who will write down the
amount available on the screen which the cashier will pay out to the
client at the counter.
In some instances, if the client wins big,
then the client will receive the money in cash the next day.
13.
Having
regard to the activity and the manner it is operated it is done in
secrecy.
14.
He
sets out in his affidavit many places spread all over the Northern
Cape where s252A traps were carried out.
15.
About the
applicants, Perumal states the following:
“
It is believed
that Matthys Machiel Basson van Rooyen with identity number [….],
Mariane Elizabeth van Rooyen with identity
number [….] and
Reno Maree van Rooyen with identity number [….] has access to
online video surveillance of some of
the illegal premises. These
images can be accessed from electronic equipment such as computers
and smartphones. Therefore it is
imperative that all electronic
devices in their possession be ceased as it may afford evidence of
the commission of an offence
as well as provide evidence of all the
persons involved in the illegal facilitation of gambling.
”
16.
Perumal
further states:
“
Policing
actions under s252(A) of Act 51 of 1977 were authorised to be held at
the internet café located at Livingstone Street,
Kuruman,
Northern Cape. During October 2015 the said operation could not be
executed due to the said premises being locked as Matthys
Machiel
Basson van Rooyen with identity number 571005 5122 088 received
information about the operation. This was confirmed by
him in a
recorded conversation with the agent. On the 14
th
March 2016 a similar operation was planned and executed by two
shallow cover agents who were fitted out with video and audio
recording
and they did two transactions each. An amount of R2 000.00
was paid and nothing was returned. When the two shallow cover agents
arrived in Kuruman, and they proceeded to the premises in Voortrekker
Street in Kuruman. They entered the premises marked Internet
Café
and conducted the operation. The said premises are not affixed with a
street address. I am of the view that from the
evidence collected by
the two shallow cover agents, that indeed unlawful gambling is being
conducted at the premises at Voortrekker
Street in Kuruman
.”
17.
Both
Perumal and the third respondent confirm that his together with the
police agent’s affidavits were placed before the
latter after
when the search warrant was authorised.
18.
In
his affidavit, the police agent sets out how he made contact with the
applicants over a period from 29 June 2015 until 28 November
2016. He
was in contact either with the applicants or their son. The affidavit
contains information about several meetings between
the police agent
and the first applicant. At some stages, the second applicant was
present during these meetings.
19.
The
first applicant explained to the agent how illegal online gambling
was conducted. The first applicant bought a computer programme
known
as Global which is a Russian programme which allows them access to a
server overseas. The programme allows them to continue
with gambling
activities without being dependent on other role players. The
programme was loaded on touchscreen computers. Games
are loaded,
credits are bought on which the applicants pay royalties. The
computers are then used to conduct illegal online gambling.
20.
On
most occasions, when the police agent and the first applicant met the
former was given payments for his role in giving the first
applicant
information.
21.
The
information sought by the first applicant related to when the police
were to conduct searches on premises where the applicants
operate
from. The first applicant also requested the agent to stop illegal
gambling activities conducted by their opposition.
22.
Having
regard to the information contained in the affidavit of Perumal read
together with the affidavit of the police agent, the
third respondent
then authorised a search warrant to be conducted on the premises of
the applicants.
The search warrant
23.
The
third respondent, a justice of the peace issued the search warrant on
1 December 2016
at
Kimberley. The search warrant allows police officials named in an
annexure to the warrant to enter the premises of the applicants;
to
seize any articles; to search for and draw any data and data messages
on any information system and making mirror imaging of
the data and
data messages restored on the information system. The police
officials – 369 in total - are described in Annexure
“
B
”
to the warrant.
24.
At
this point, I pause to mention notwithstanding the significant number
of named police officials in the warrant only eight took
part in the
actual search of the premises.
25.
The
warrant further states that information on oath suggests reasonable
grounds for believing that offences in respect of the Prevention
and
Combatting of Corrupt Activities Act No 12 of 2004; contraventions of
the Northern Cape Gambling Act 3 of 2003 and contraventions
of the
Prevention of Organised Crime Act 21 of 1998
are being committed at
the premises. The factual basis for such reasonable belief is that
police actions were carried out at the
premises where it was
established that persons access illegal online gambling sites in lieu
of payment to the person in charge
of the premises.
26.
The
items capable of seizure which may afford evidence that is concerned
with or intended to be used in the commission of a crime
are
contained in an Annexure “
A
”
to the search warrant. In this annexure, is listed accounting records
whether in electronic and hardcopy; bank deposits,
book slips,
counterfoil, printouts; bank withdrawal slips / counterfoil /
printouts. I do not intend to list each and every item
in this
judgment save to state that a big part of the items refers to
computers and computer equipment.
27.
It is
settled law that courts will vigorously scrutinise the validity of
search warrants. More so, because of an individual’s
right to
privacy and dignity and not to have his home searched without any
legal foundation. The courts seriously guard the right
to privacy.
When the validity of a search warrant is attacked, a court must have
regard to the stringent requirements laid down
by the Constitutional
Court.
28.
The
warrant is attacked on many grounds to which I turn presently.
Conflict of interest
29.
It
was contended on behalf of the applicants that the basis on which the
warrant was issued is conflicted because of Perumal and
the
commissioner of oaths who commissioned his affidavit, Lt Col Fernando
Luis being attached to the same unit.
30.
The
Justice of the Peace and Commissioners of Oaths Act 16 of 1963 deals
with the appointment of commissioners and
ex
officio
commissioners of oaths. Members of the South African Police Services
by their office are
ex
officio
commissioners.
Regulation 7 which was promulgated on 21 July 1972 and published in
Government Notice No 649 as Regulation No. R1258
is relevant.
According to Regulation 7(1), a commissioner of oaths is prohibited
from administering an oath or affirmation in which
he or she has an
interest. Regulation 7(2) stipulates that the provisions of
sub-regulation 1 shall not apply to an affidavit or
a declaration
mentioned in the schedule. The schedule provides that Regulation 7(1)
does not apply to any affidavit or declaration
taken by an officer
who is in the service of the State, provided: his only interests in
the declaration arises out of the performance
of his duties in such
service; the primary interest in the declaration is that of the
State. (cf
S
v Sihlobo
[2004] JOL 12831
(Tk)
.)
31.
It
was submitted that Col Luis has an interest in the matter because he
was part of the investigation concerning the applicants
with specific
reference to the s252A of the CPA when operations were carried out by
the police agent.
32.
In
support of this submission, reference was made to
National
Director Public Prosecutions v Ndolose
2014 (2) SACR 633
(ECM)
where the court held that the provisions of Regulation 7 are
peremptory and that non-compliance renders the act of attestation
void and deprives the documents of its validity as an affidavit. The
court was also referred to an unreported decision in the
North
West High Court Mafikeng of Malan Case No: M279/2017
and
Dyani v
Minister of Safety and Security & Others 2001(1) SACR 634 (TK)
[paras 19 and 20]
in which the same conclusion was reached: if there is non-compliance
with Regulation 7 the warrant is void and should be set aside.
33.
Counsel
for the applicants quite correctly referred to a decision of
Grammaticus
v Minister of Police Case No: 50538/2017 dated 12 December 2017
in
which it was held on the facts of that case that the applicants have
not illustrated any factual basis on which the police officer
had an
interest in the matter other than in exercising his functions as
police officer in the service of the state.
34.
I
respectfully agree with the learned judge in
Grammaticus
supra
that to set aside a warrant on the basis that a police officer has an
interest would constitute a purely technical basis especially
where
there is no evidence of any abuse of power or gross violation
(
Polonyfis
v Minister of Police
2012 (1) SACR 57
(SCA)
)
of the rights of a person to be searched. In this instance it was not
shown nor was it alleged that the respondents disregarded
the rights
of the applicants.
35.
In any
event, it was explained although Perumal and Luis are attached to the
DPCI, they function in two separate units. Perumal
is attached to the
Serious Commercial Crime Investigation Unit whereas Luis is attached
to the Serious Corruptions Investigations
Unit. Furthermore, Luis’
only interest arises out of the performance of his duties in service
of the state. Lastly, the applicants
could not show any evidence of
abuse or power or gross violation of their rights.
36.
As was
stated in
R
v Rajah
1955 (3) SA 276
(A) at 282 F - G
:
“…
that a
person in the position of Van Rooyen was intended by the legislature
in a case such as this to be competent to administer
an oath. Van
Rooyen in the exercise of his duties as a member of the criminal
investigation department administered the oath in
the course of his
investigation into an alleged offence. In doing so, he was carrying
out his duty and cannot be said to have had
‘any interest’
in the matter within the meaning of the words in Reg.1(i) I
respectfully align myself with this view.
”
37.
Consequently,
the reliance on Regulation 7(1) fails.
38.
In
Minister
of Safety and Security v Van der Merwe & Others
2011 (5) SA 61
(CC) at paras 55 – 56
the court said the following:
“
What emerges
from this analysis is that a valid warrant is one that, in a
reasonably intelligible manner:
(a)
States
the statutory provision in terms of which it is issued;
(b)
Identifies
the searcher;
(c)
Clearly
mentions the authority it confers upon the searcher;
(d)
Identifies
the person, container or premises to be searched;
(e)
Describes
the article to be searched for and seized, with sufficient
particularity; and
(f)
Specifies
the offence which triggered the criminal investigation and names the
suspected offender.
”
39.
At para 56
the court said the following:
“
In addition,
the guidelines to be observed by a court considering the validity of
the warrants include the following:
(a)
The
person issuing the warrant must have authority and jurisdiction;
(b)
The
person authorising the warrant must satisfy herself that the
affidavit contains sufficient information on the existence of the
jurisdictional facts;
(c)
The
terms of the warrant must be neither vague nor overbroad;
(d)
A
warrant must be reasonably intelligible to both the searcher and the
search person;
(e)
The
court must consider the validity of the warrants with a jealous
regard for the search person’s constitutional rights;
and
(f)
The
terms of the warrant must be construed with reasonable strictness.
”
[footnotes omitted]
Jurisdictional facts
40.
The
applicants submit that the jurisdictional facts to obtain the search
warrant were absent. They contend that the third respondent
did not
apply his mind to the information at his disposal when authorising
the warrant. In this regard, they say that there was
not a reasonable
suspicion that a crime has indeed been committed or that reasonable
grounds exist to believe that objects connected
with an offence may
be found on the premises or persons intended to be searched.
41.
But
the applicants are wrong in this regard. The affidavit of Perumal was
made available to the third respondent. In that affidavit,
he
describes the various investigative methods they employed in the
Northern Cape to investigate illegal gambling. Furthermore,
the
affidavit of the police agent was also available to the third
respondent when he authorised the warrant. In that affidavit,
the
police agent describes how he infiltrated and obtained the trust of
the applicants. To this end, he described how the applicants
and
specifically the first applicant required of him to provide
information when the police were to conduct operations on illegal
gambling. The first applicant also informed the police agent that if
a warrant is to be issued concerning the premises where the
operations are conducted on behalf of the first applicant, the
warrant must be filled in as to allow the applicants’ legal
representatives to attack the warrant on the basis of insufficient
information. It was also expected of the police agent to exert
pressure on competition of the applicants.
42.
For
all his endeavours, the police agent was paid by the first applicant
and in some instances with the knowledge of the second
applicant
whereafter the monies paid were marked and booked. At all material
times, the police agent was monitored by his superior
officers.
43.
The
applicants have opted not to attack the merits of the allegations
alleged against them by the police agent. In these circumstances,
it
can hardly be suggested that there was no reasonable suspicion or
that no reasonable grounds existed for the issuing of the
warrant.
44.
On
this basis, the applicants’ argument fails.
Was the warrant
intelligible?
45.
The
applicants complain that the warrant was not reasonably capable of
being understood by an informed person who understand the
empowering
legislation and the nature of the offences in question. In this
regard, they referred to the fact that the warrant is
vague because
it refers to 396 police officers. For the above proposition, the
applicants call in aid the decision of
Smit
and Maritz Attorneys & Another v Lourens N.O. & Others
2002
(1) SACR 152
(W)
and
Naidoo &
Another v Minister of Law and Order & Another
1990 (2) SA 158
(W)
at 161 C – D
.
In both these cases the warrants in question refers to “
police
official
”
and to “
all
police officers”
.
However, in the case at hand the police officials, are named. It
should not be forgotten that at the time of the issuing of the
warrants, the DPCI in the Northern Cape and specifically the Serious
Commercial Crimes Unit and Serious Corruption Crime Units
were busy
with intensive investigations concerning illegal gambling in the
Northern Cape. Furthermore, the warrant reflects only
eight police
officials who were present at the execution thereof.
46.
In
any event to use as authority the cases referred to is misplaced. As
pointed out, those cases referred to ‘police official’
and to ‘all police officers’. Whereas in this matter, the
police officers are clearly identified by the terms of the
warrant.
The applicants’ argument on this score must fail.
The offences
47.
The
applicants were highly critical of the offences described in the
warrant. The argument is that the offences are referred to
in an
omnibus fashion where no dates, periods and the particular section is
identified. As I understand the argument, the respondents
cannot
merely quote the sections but should indicate when, where and what
happened.
48.
In
support of their argument, the applicants referred to the decision of
Ferucci
& Others v Commissioner, South African Revenue Service &
Another
2002 (6) SA 219
(C)
.
However, that case dealt with the provisions of the Income Tax Act 58
of 1962 and specific s74(d). It is indeed so that by and
large the
Income Tax Act and the CPA have corresponding provisions. However, I
am guided by what was stated in
Thint
(Pty) Ltd v National Director of Public Prosecutions & Others
;
Zuma v
National Director of Public Prosecutions & Others
2009 (1) SA 1
(CC) at para 152
the
following is stated:
“…
I do
not think that Powell lays down a subjective test for a warrants
intelligibility, which would mean that the lawfulness of a
warrant
will depend on the understanding of the person present at the
premises when it is executed. This approach would effectively
require
every warrant to be perfectly tailored so that any person search
would, in the light of his or her own subjective mental
capabilities
and education, have a complete understanding of the scope of the
search. The principle in Powell does not establish
this requirement
either explicitly or by implication. Such a requirement would be
practically unworkable and would scupper the
fight against serious
and organise crime, because it would be practically impossible to
prepare every warrant relating to complex
offences and circumstances
in a way that would make it understandable, in all its detail, to
every person who may search.
”
49.
The
warrant refers to contraventions of the Prevention and Combatting of
Corrupt Activities Act, No 12 of 2004; the Northern Cape
Gambling
Act, Act 3 of 2003 read with the National Gambling Act, Act 7 of 2004
and Contraventions of the
Prevention of Organised Crime Act, No 121
of 1998
. In Annexure “
C
”
to the warrant, all the sections concerning the Prevention and
Combatting of Corrupt Activities Act, the
Prevention of Organised
Crime Act and
the Northern Cape Gambling Act are described, and all
the offences are set out.
50.
In
my view, it cannot be expected when police, at the initial stages of
an investigation to include in a warrant when, where and
what
specific offences were committed. The answer is obvious, at the
initial investigation the police must still thoroughly investigate
to
determine which offences were allegedly committed. It cannot be
expected of police officials to state the offences with so much
clarity when reference is made to when, where and how the crimes were
allegedly committed. In my judgment that is not what is envisaged
in
this section. Thus, the applicants fail at this hurdle too.
Data messages
51.
The
applicants argue that the reference to the articles to be seized are
vague which makes the warrant unintelligible and overbroad.
I do not
agree. In
Thint
(supra) at para 156
the
following was said:
“
It would
also be unrealistic, however adequately represented the search person
might be at the time, to expect differences of opinion
to be resolved
while the search is taking place. The act empowers investigators to
execute the operation unilaterally, thus investigators
are entitled
to decide whether to examine or seize any particular item without the
consent of the search person. Difference of
opinion may, in the end,
have to be resolved by a court. They do not necessarily render the
warrant unduly vague or overbroad.
”
52.
Furthermore,
at
para
160
:
“…
My
view is that it is permissible to travel outside the warrant for that
purpose. Indeed it seems very likely that every small item
of
knowledge attained by an investigator would be relevant to deciding
whether an item might have a bearing on the investigation.
Whether,
for example, a particular letter or financial record is relevant to
an investigation may depend on a host of factors beyond
the terms of
a warrant, including what other relevant letters and financial
records state. Therefore, it seems to me that it would
in most cases
where complex criminal offences are involved, not be possible to
prepare a warrant in such a way that the relevance
or irrelevance to
the investigation of any particular item found in the search premises
could be determined without doubt by the
search party having regard
to the terms of the warrant alone. I do not understand the judgment
in Powell to have laid down such
a restrictive rule.
”
53.
What
must be understood is the following. It is notoriously difficult for
the police to detect illegal online gambling. For obvious
reasons,
these types of offences are committed in the secrecy of people’s
homes or business premises. In this instance, the
police had to make
use of an undercover agent to infiltrate the applicants to establish
whether they have allegedly committed the
offences as previously
stipulated. In such a situation, the police will have to seize
computers, hard drives, discs, etc. Therefore,
the attack that the
warrant is vague and overbroad is unfounded. The applicants, if the
evidence of the police agent is accepted
would in all probability
have committed offences under the Prevention of Corruption Act. In my
judgment, the description of the
articles to be seized are not vague
and overbroad.
54.
However,
the applicants had another string to their bow. They contend that
they were in undisturbed lawful possession of the articles
seized and
are therefore entitled to restoration. In this regard, they refer to
the case of
Ngqukumba
v Minister of Safety and Security & Others
2014 (5) SA 112
(CC)
.
55.
Ngqukumba
is
distinguishable from this case. In that case, the court dealt with
the provisions of
ss68(6)(b)
and
89
(1) of the
National Road Traffic
Act 93 of 1996
. The court held that on the facts of that case –
a vehicle bearing falsified or mutilated engine or chassis number –
it is possible to possess such a vehicle with lawful course: hence
the saying that a thief may also possess.
56.
However,
in my judgment the principles laid down in
Ngqukumba
is not
applicable in this case. The facts are distinguishable. In paragraph
13 of the judgment, the court said non-compliance with
the provisions
of the CPA in seizing goods is unlawful. Furthermore, the court also
remarked in paragraph 15 that the court was
not concerned with
objects the possession of which by ordinary individuals would be
unlawful under all circumstances. Had the court
been concerned with
objects of that nature, then the mandament van spolie might not be
available.
57.
In this
instance the police are dealing with alleged illegal online gambling
activities and alleged corrupt activities. It is in
the public
interest for the police to investigate it because of the real
possibility of items that may not be lawfully possessed.
58.
I
am mindful of what is stated in
Van
der Merwe and Another v Taylor NO and others
2008 (1) SA 1
(CC) at
para 55
:
“
In
circumstances where a criminal trial is pending, an application for
the return of the article may be premature as it may be required
for
purposes of trial.
”
(footnotes omitted)
59.
In
the view that I take of the matter I need not decide the conditional
counter application.
60.
I make the
following order:
61.1
The application is dismissed with costs.
S C O’BRIEN
ACTING JUDGE
For
the applicants:
Adv L J Lowies
instructed by
Van De Wall Incorporated,
Kimberley
For
the respondents:
Adv
B S Mene
instructed by
the State Attorney,
Kimberley