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[2017] ZALMPPHC 50
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Internet Lounge Schoeman (Pty) Ltd v Minister of SAPS NO and Others (5475/2016) [2017] ZALMPPHC 50 (20 April 2017)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
No. 5475/2016
20/4/2017
In
the matter between:
THE
INTERNET LOUNGE SCHOEMAN
(PTY)
LTD (REG NO:
2016/059578/07):
APPLICANT
And
THE
MINISTER OF SAPS
N.O:
1
ST
RESPONDENT
THE
PROVINCIAL COMMISSIONERSAPS,
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 7th 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 5
th
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 12
th
of September 2016. The said operations were held on the 16
th
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 R100-00
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 19
statutory offences which
appeared to the fourth respondent that there
are reasonable grounds for believing they have been committed on the
16 September
2016 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
2013, the
National Gambling Act 7 of 2004
and
Prevention of Organized
Crime Act 121 of 1998
) 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 café. 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 proceedings.”
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/O 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/O 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
empowering 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
JUDGE
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
BAR
TEL
082 397 7779
RESPONDENT’S
ATTORNEY: STATE ATTORNEY POLOKWANE
36
BODENSTEIN STREET
Tel
015 230 6300/3