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[2017] ZALMPPHC 28
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Internet Lounge Schoeman (Pty) Ltd v Minister of SAPS NO and Others (5475/2016) [2017] ZALMPPHC 28 (20 April 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
No. 5475/2016
Not
reportable
Not
of interest to other judges
Revised.
20/4/2017
THE
INTERNET LOUNGE SCHOEMAN
(PTY)
LTD (REG NO:
2016/059578/07):
APPLICANT
And
THE
MINISTER OF SAPS
N.O:
1
st
RESPONDENT
THE
PROVINCIAL COMMISSIONER SAPS,
LIMPOPO
PROVINCE N.
N.O:
2
nd
RESPONDENT
DETECTIVE
SERGEANT M.S.
RAMOROKA
N.O:
3
rd
RESPONDENT
THE
MAGISTRATE: POLOKWANE
N.O:
4
th
RESPONDENT
THE
CHAIRPERSON LIMPOPO
GAMBLING
BOARD
N.O:
5
th
RESPONDENT
JUDGEMENT
SEMENYA
J
1.
This application was initially placed on an urgent roll
on the 28
th
of
November 2016. It was removed from that roll and placed on the normal
roll on the 27
th
of February 2017.
2.
The applicant seeks the following orders:
2.1
Reconsideration of the warrant issued by the
fourth respondent on the 7
th
of November 2016 in respect of the applicants business situated at
Limpopo Internet Entertainment Lounge, no. 53C Schoeman Street,
Polokwane, and Limpopo Province and executed on 8 November 2016.
2.2
Setting aside
/
declaring
as invalid the search warrant issued by the fourth respondent.
2.3
Directing and ordering the third respondent and
any other respondent who is in possession of all the applicant's
movable goods
and monies, to forthwith restore possession of the
movable
goods that were removed by SAPS
representatives, who were
under the control of
the third respondent from the applicants ' business premises.
3.
The facts that led to the application are that on the
5th of September 2016 the third respondent received a statement under
oath
from a member of the Limpopo Gambling Board one Inspector TE
Mathotse (Ins Mothotse). In the said statement, Ins Mathotse
complained
that he had visited the applicant's premises in which he
suspected that online/interactive gambling activities were taking
place
and made available to members of the public without a licence.
4.
This suspicion made Ins Mathotse to enquire from a
cashier about the type of business they were conducting and was
informed that
they offer gambling games to their customers. The
cashier further explained how the said gambling is conducted. Ins
Mathotse was
further informed that the customer has the potential of
winning up to twenty thousand Rand.
5.
After opening an enquiry as per Polokwane Enquiry
03/09/2016 for purposes of further investigations, the third
respondent proceeded
to the applicants premises to verify the
allegations made by Ins Mathotse.
6.
Inside the applicants' premises, the third respondent
observed that the place resembled a casino with members of the public
seated
behind computers. She stood next to a woman who had her finger
on a bet button with the screen in front of her reflecting credits
which increased and decreased. She concluded that further
investigations are necessary.
7.
An undercover operation, conducted in terms of section
252A of the Criminal Procedure Act 51 of 1977 (the Act) was set up
with the
authorization of the Director of Public Prosecutions, North
Gauteng on the 1ih of September 2016. The said operations were held
on the 16th September 2016.
8.
Warrant Officer Karabo Brian Mocheko, who was used as a
trapping agent, proceeded to the applicants' premises where he used
the
money that was given to him to gamble. He loaded 10 000 credits
that was given to him by the cashier at a price of Rl00-00 to gamble
on one of the computers. He however lost all of the credits.
9.
With this information at his disposal, as well as one
already received from Ins Mathotse, third respondent made a statement
under
oath and approached the fourth respondent with an application
for a search and
seizure warrant. The warrant was
intended to be used at the applicant's premises.
10.
Included in the search and seizure warrant subsequently granted by
the fourth respondent is a list of I 9 statutory offences
which
appeared to the fourth respondent that there are reasonable grounds
for believing they have been committed on the I 6 September
20 I 6
and are being committed at the applicant's premises. In addition to
stating the statutory provisions (contravention of certain
sections
of the Limpopo Gambling Act 3 of 20I3, the
National Gambling Act 7 of
2004
and Prevention of Organized Crime Act I 2 I of I 998) of the
offences believed to have been so committed, the warrant further
states
a brief description, in words, of such offences.
11.
.Attached to the warrant in the form of Annexure "B," is a
list of articles said to be capable of seizure from the
applicant's
premises. It is stated in the warrant that the said articles are
concerned and may afford evidence to be used in the
commission or
suspected commission of offences listed therein.
12.
Due to the nature of the argument in support of
the application, it is necessary to mention the list of articles
included in Annexure
"B" of the statement of third
respondent and it is as follows:
i.
All
information system as defined in section 1 of the Electronic
Communication and Transaction Act No. 25 of 2002 (ETC), including
data and data messages stored thereon. The information system include
computers, cellular telephones, flash drives, "usb"
devices, compact discs and digital photographs and /or video discs or
cards and routers.
ii.
All
documents and registers, including financial records, books,
receipts, pay-outs/winnings/losses, employee records
&
banking information.
iii.
All
cash registers.
iv.
All
cash pertaining to business activities
v.
All
safes on the premises
vi.
Camera/s
or surveillance equipment (CCTC) and footage.
13.
The fourth respondent further authorized third respondent and other
police officers whose names are included in Annexure "C"
attached to the search and seizure warrant to enter and search the
premises and any person found therein and through any data messages
and examination thereof.
14.
In the answering affidavit filed on behalf of first,
second and third respondents it is stated that there is a huge sign
above the
entrance that declares that people under the age of 18
years are not allowed on the premises. The inside is covered with a
cloud
of darkness. There is no copier, fax machine or working
printers which are normally found in an internet cafe. The
respondents
state that the search and seizure warrant is valid. It is
important to note that these facts were not before the fourth
respondent
at the time she authorized the warrant and are therefore
irrelevant.
15.
It is common cause that the issues to be decided upon in
this application are whether the search and seizure warrant is
overboard
and unintelligible as submitted by the applicant. The court
is tasked to further determine whether the fourth respondent has
applied
her mind to the facts or has just rubber-stamped the
application for a search and seizer warrant.
16.
The fact that there is no licensed internet gambling in
South Africa is not disputed. This court is in any event not tasked
to determine
whether illegal gambling did take place or not at the
applicant's premises.
17.
The search and seizer warrants was authorized in
terms of section 21 read with section 20 and relevant sections of the
Criminal Procedure Act 51 of 1977
which provide as follows:
"20 State may seize certain
articles
The
State may,
in
accordance
with the
provisions of
this
Chapter
,
seize anything (in
this
Chapter referred
to
as
an article)-
(a)
Which is concerned in or is on reasonable grounds
believed to be concerned in the commission or suspected commission of
an offence,
whether within the Republic or elsewhere;
(b)
Which may afford evidence of the commission or
suspected commission of an offence, whether within the Republic or
elsewhere; or
(c)
Which is intended to be used or is on reasonable
grounds believed to be intended to be used in the commission of an
offence.
21 Articles to be
seized
under
search warrant
(1)
Subject
to
the provisions
of
section 22
,
24
,
and
25
,
an
article referred to
in
section
20
shall be seized only
by
virtue
of a search warrant issued
–
(a)
By
a magistrate or justice if
it appears to such magistrate or justice from information on oath
that there are reasonable grounds for
believing that any such article
I in the possession or under the control of or upon any person or
upon or at any premises within
his area of jurisdiction ; or
(b)
By a judge or judicial officer presiding at
criminal proceedings , if it appears to such judge or judicial
officer presiding at
criminal proceedings, if it appears to such
judge or judicial officer that any such
article
in the possession or under the control of any person or upon or at
any premises is required in evidence at such proceeding
s."
18.
In
Minister of Safety and
Security v van der Merwe and Others (CCT90/10) (2011] ZACC 19 (van
der Merwe)
at paragraph 10 under the heading
"An overview of the search and seizer warrants" Mogoeng J
as he then was stated that-
"... the section requires
that the decision to issue a warrant be made only if the
affidavit in support of the application contains the
following objective jurisdictional facts: (i) the existence of a
reasonable
suspicion that a crime has been committed and (ii) the
existence of reasonable grounds to believe that objects connected
with the
offence may be found on the premises or persons intended to
be searched ..."
19.
The applicant contended that the court should approach
the matter from the premise that the fourth respondent has stated as
a matter
of fact and not as a suspicion that the offences listed in
the warrant were committed on the 16 September 2016. It was argued on
behalf of the applicant that had the fourth respondent applied her
mind to the statement served before her, she would have realized
that
no offence was committed on the 16 September 2016.
20.
The applicant's contention is made on the basis that
nowhere in the statement does it appear that any of the applicant's
employees
informed W/O Mocheko ( the section 252A of the Act agent)
that he may win cash or that he was actually paid out any cash. This
contention loses sight of the fact that the fourth respondent relied
on the statement made under oath by Detective Sergeant Ramoroka
and
not that of W.O Mocheko. The argument made by the respondent that the
warrant should not be read in isolation as all the evidence
presented
to the fourth respondent forms part of the warrant itself is found to
be correct.
21.
Proper reading of the said statement shows that the
conduct of W/0 Mocheko was a process and not an event. It started
with the report
made to SAPS by a member of the Gambling Board (Ins
Mathotse). Fourth respondent therefore had information that an
employee of
the applicant had already furnished information to this
member that a gambling business is carried out in the applicant's
premises
and that there are chances of winning an amount if R20000.
22.
W
/
O Mocheko and other
members of the entrapment team also had this information at their
disposal and the former was aware that there
was a potential of
winning R20000. These facts, when viewed objectively,
create
reasonable grounds for believing that the offences have been
committed.
I am in agreement, though that the
conduct of W
10
Mocheko
in continuing to gamble until he lost all the money instead of
cashing the credits was improper.
23.
.In the search and seizure warrant, the fourth
respondent states that there are reasonable grounds for believing
that the offences
listed have been committed on the 16 September and
are being committed . My understanding of the wording of this
paragraph is that
the commission of the offences is ongoing and is
not restricted to the 16 September 2016. The contention that the
warrant relates
to the conduct of W/O Mocheko only cannot be accepted
as correct.
24.
The contention that the description of the articles that
are to be seized is overboard is equally faulty. In
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In re Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001 (1) Sa
545
(CC) at 52
it was stated that-
"...the warrant may only be
issued where the judicial officer has concluded that there is a
reasonable suspicion that such
an offence has been committed, that
there
are reasonable grounds to believe that
objects connected with an investigation into that suspected may be
found on the relevant
premises ..."
25.
Paragraph C of the warrant, which refers to articles
that are to be seized, states specifically that the said articles
(Annexure
"B") are concerned the commission of offences
listed in the search and seizure warrant. It is alleged that the
offences
were committed electronically on computers. Money is also
involved which will make cash registers relevant to investigations as
well. There is no better way of describing the items to be seized
other than in the manner in which it was done in the warrant.
The
objects which are to be seized are connected to the investigation to
be conducted by Ramoroka. Furthermore, as already stated
above, the
warrant refers to the conduct that was ongoing as such the fourth
respondent could not be expected to restrict the search
and seizure
to one specific date. The warrant was perfectly tailored for the
occasion and not simply taken from the stock-
Mohammed
v NDP and Others
[2005] ZAGPHC 90
;
2006 (1) SACR 495
(W).
26.
In van der Merwe
(supra)
at
18 referring to the intelligibility test, it was stated that
intelligibility requires that a warrant be reasonably intelligible
in
the sense that it is reasonably capable of being understood by a
reasonably well-informed person who understands
the
relevant
empowermg legislation and the nature of
the offences under investigations. The applicant alleges that the
fourth respondent failed
to apply her mind to the matter in that she
did not realize that some of the offences listed could not have been
committed. It
is noteworthy that all offences listed in Annexure "B"
are offences that are ordinarily committed during illegal gambling.
The fourth respondent was not tasked with deciding whether they were
indeed committed or not.
27.
In any event, it is the function of the prosecutor to
finally decide as to whether to charge the applicant with all listed
offences
or not. As it now stands the warrant is intelligible in that
the applicant can, with the help of the annexures attached to the
warrant, be able to understand what is expected of the person doing
the search. The person who is supposed to do the searching can
also
understand what he/she needed to do.
28.
I find that the warrant is neither overboard nor fails to pass the
intelligibility principle test and it is therefore valid.
I am in
agreement with the the respondents ' argument that the search
conducted according to the applicant's views will make the
SAPS's
work impossible. It is not what examining the validity of the search
and seizure warrants with jealous regard to the liberty
of the
subject and his or her rights to privacy
and
property entails-Thint (Pty) Ltd v National Director of Public
Prosecutions and Others; Zuma and Another v National Director
of
Public Prosecutions and Others [2008]ZACC 13.
29.
It is ordered:
29.1.
Application for
the
setting
aside
of the
search and
seizure warrant
issued by
Polokwane
Magistrate on the 7 November 2016 against
the
applicant is
dismissed.
29.2.
The SAPS Limpopo
Province is
ordered
to
retain
the
articles seized
by
its
members during
the
execution of the warrant on the 8 November 2016 at the
business
premises of the applicant.
29.3.
No cost order is
made.
______________________
M
V SEMENYA
JUDG
E
OF THE HIGH COURT OF
SOUTH
AFRICA
;
LIMPOPO DIVISION.
APPEARANCE:
FOR
THE APPLICANT: N JAGGA.
INSTRUCTED
By: VARDAKOS ATTORNEYS
C/O
MAHOWA INC
UNIT
No. 2 JCJ LIMPRO
BUILDING
06
HANS VAN RENSBURG STREET
POLOKWANE
Tel
015
307
4574
FOR
THE RESPONDENT: ADV F M M SNYMAN
PRETORIA
BARTEL
082
397 7779
RESPONDENT'S
ATTORNEY:
STATE ATTORNEY POLOKWANE
36
BODENSTEIN STREET
Tel
015
230 6300
/
3