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[2017] ZAGPPHC 136
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Grammaticus (Pty) Ltd v Minister of South African Police and Others (8694/14) [2017] ZAGPPHC 136 (22 March 2017)
IN THE HIGH
COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
22/03/2017
CASE
NO: 8694/17
Reportable: No
Of
interest to other judges: No
In the matter between:
GRAMMATICUS (PTY)
LTD
Applicant
and
THE MINISTER OF SOUTH
AFRICAN
POLICE
First
Respondent
CAPTAIN PETRUS
SIBEKO
Second
Respondent
THE MAGISTRATE:
BRITS
Third
Respondent
THE CHAIRPERSON: NORTH
WEST
Fourth
Respondent
GAMBLING BOARD
JUDGMENT
MOTHLE J
1. This application came before court by way of urgency
in terms of Rule 6(12) of the Uniform Rules of Court. The application
concerns
an attack on the validity of two warrants issued by the
Magistrate: Brits, authorising searches and seizure at two separate
premises.
2. The applicant seeks relief as follows:
2.1 That the matter be adjudicated as an urgent
application in terms of Rule 6 (12) of the Rules of this court;
2.2 A reconsideration, in terms of Rule 6(12)(c), of
warrants issued by the Magistrate, Brits on 2 February 2017 in
respect of searches
and seizure conducted at two premises where the
applicant claims to be the tenant;
2.3
That the Court should set aside/declare as invalid the said warrants;
2.4 That the Court should direct and order the second
respondent and any other respondents in possession of the items
removed from
the applicant's business premises, to forthwith return
such goods or items; and
2.5
Costs of suit against any respondents who oppose the application.
3. All respondents, except the third respondent i.e. the
Magistrate Brits, oppose this application. The Magistrate did not
participate.
In this judgment, the first respondent is referred to as
the Minister; the second respondent as Captain Sibeko and the
Gambling
Board of the North West Province, cited as the fourth
respondent, is referred to as the Gambling Board. Where appropriate,
the
first and second respondents, represented by the same counsel,
are jointly referred to as the respondents.
4. The facts, which appear from the applicant's founding
affidavit and the respondents' answering affidavits, are briefly that
on
2 February 2017, members of the South African Police approached
the Magistrate; Brits, with a request to authorise two warrants
for
searches and seizure at two different premises. The warrants were
authorized and on 3 February 2017, the officer authorised
in the
warrant proceeded to the premises and removed certain goods. It is
common cause that during the execution of these warrants,
the
applicant's attorney was present on the premises.
5. On 6 February 2017, after the warrants were executed,
the applicant lodged this application for hearing in the urgent
court.
The application was set down for 21 February 2017.
6. The respondents and the Gambling Board filed
answering affidavits shortly before the hearing of the application.
The applicant
failed to file a replying affidavit and its attorney
confirmed in Court during the hearing that the applicant does not
intend to
do so. The application was argued fully on the points
in
limine
and the merits.
7. The procedural issues raised
in limine
by the
respondents in this application are urgency, improper service and
non-compliance with the provisions of Rule 53. The substantive
issues
involve an attack on the validity of the warrants as issued by the
magistrate and a relief in a form of spoliation for the
return of the
goods. I now turn to deal first with the points in
limine.
Point in Limine:
Improper service
8. This application, dated 6 February 2017, was set down
for 21 February 2017 at 10H00 in the Court for urgent applications.
It
called upon the respondents who intend to oppose the application
to notify the applicant's attorneys in writing not later than
"14H00,
THURSDAY, 9 JANUARY 2017" (sic).
It further went on to state
that if those opposing the application and desire to file any
answering affidavit, should do so not
later than
"14H00,
TUESDAY, 14 JANUARY 2017"
(sic). In its haste to prepare the
papers, the applicant, as stated above, erroneously referred to the
month of "JANUARY"
instead of "FEBRUARY" in the
periods stated for the opposition to file papers.
9. The respondents
contend that the applicant failed to effect proper service when it
served the application electronically on Colonel
B J Van Wyk on 7
February 2017 at the Provincial Offices of the South African Police
in Potchefstroom. The Respondents further
contend that the
Applicant's attorney, Mr Vardakos was present at the search and
seizure at the two premises and he knew that Captain
Sibeko, who was
authorised to execute the warrants, was stationed at Brits Police
Station. However, he chose to avoid serving the
application on the
Captain but rather on the provincial commanding officer, stationed at
Potchefstroom, who was not remotely involved
with the warrants issued
in this case. The net effect is that by serving the document at the
Provincial Office as he did, this
prejudiced the respondents in that
there was a considerable delay before the Respondents could arrange a
consultation and prepare
their response to the application
accordingly.
10. It is indeed correct
that the abridged period of service provided to the Respondents,
coupled with the fact that the application
was served at the
provincial office and not the Brits Police Station, resulted in the
respondents being placed unnecessarily under
considerable pressure to
prepare and file their answering affidavit.
11. The approach in
determining the truncated periods of service in urgent applications
has been set out succinctly in
Luna Meubel Vervaardigers (Edms)
Bpk v Makin (Trading as Makin Furnisher Manufacturers)
1997 (4) SA
135(W).
This application does not present a life threatening
situation which would cause the applicant to subject the respondents
under
highly prejudicial time periods. The respondents are organs of
State whom, in terms of Rule 6(13) are entitled to be given
sufficient
notice.
12. The applicants in response to this contention,
referred the Court to a number of decisions by various courts,
including the
matter of
Kosmas Tshilas v Minister of SAPS and
Others: Case Number: 96217/2016,
an unreported judgment of
this Court by Mavundla J. The essence of the decision in this
judgment is that if the matter is urgent,
the applicant need not
strictly wait for the time periods stipulated in Rule 6(13) before
they can launch an application. However,
I do not find this judgment
to be an authority that reasonable time periods in line with the Luna
Meubels case should not be provided
to the respondent in a matter
that is not life threatening.
13.
I am thus of the view that the applicant provided the respondents
with an unreasonable time to respond to the papers. However,
the
respondent managed to prepare an answering affidavit, comprehensively
setting out its reasons for opposing the application.
As at 21
February 2017 when the matter was called in Court, the respondents
had filed a full answering affidavit and were ready
to argue the
matter. As the applicant correctly contends, the respondents did not
apply for postponement to prepare further documents
to address any
prejudice they might have suffered as a result of the short service.
I am thus unable to agree that the application
should be dismissed on
the basis of· this point in
limine.
Point in
limine:
Urgency
14. The respondents contend that the matter is not
urgent and should be struck from the roll of the urgent applications.
In response,
the applicant again referred the Court to a number of
decisions wherein applications of this nature were held to be urgent.
The
rationale for these decisions is that since searches and seizure
invades one's privacy, where such invasion is imminent, relief
may be
obtained by an applicant approaching court by way of an urgent
application. In addition, where the warrant has been executed,
a
party whose goods and items have been seized has a right to launch an
application for spoliation, for the return of those goods.
These are
the principles that underpin the notion that such applications would
be urgent.
15.However, I do not
understand the decisions to mean that the jurisdiction of a Court is
ousted from enquiring into the circumstances
of each case. Urgency,
in terms of rule 6 (12), is found on the factual circumstances that
should demonstrate, amongst others,
the following:
15.1 The applicant setting forth before court explicitly
the circumstances that it contends render the matter the urgent;
15.2 Indicating to the Court that the circumstances of
the case are such that it/he/she will not be able to obtain relief if
the
matter were to be heard in due course.
16. The applicant, however, fails to meet with the
second requirement of urgency as stated above. Nowhere in its papers
does the
applicant allege that the prejudice suffered as a result of
the removal of those goods is irreparable to the extent that no
alternative
relief can be found in due course. The applicant is not
absolved from placing before Court these jurisdictional facts
necessary
in support of urgency.
17. In the founding affidavit as well as in the heads of
argument, the applicant's attorney argues that reasons were given as
to
why the matter is urgent. In support of this argument, he referred
the Court to decisions of other Courts which in my view, determined
urgency on the facts based on different set of circumstances. I do
not agree that by furnishing only the reasons for urgency, let
alone
these being explicit; the applicant is absolved from placing before
Court the circumstances which demonstrates that he would
not obtain
relief or alternative relief in due course.
18. Consequently, I find that the application is not
urgent and that the applicant will indeed find alternative relief in
due course.
However, having heard full argument in this matter, I am
inclined to deal with the merits of this application.
Point in
Limine:
Non-compliance with Rule 53:
19. The respondents contend
that the applicant in challenging the issuing of the two warrants
issued by the Magistrate Brits, did
not request a record of
proceedings from the Magistrate as to which documents he considered
in the course of the issuing of the
warrants.
20. The attack on the warrants is based partly on
ex
facie
its content and partly on the documents which the applicant
allege were before the Magistrate when he issued the warrant. The
applicant
contends that the documents were identified by Captain
Sibeko when he executed the warrants.
21. There is merit in the respondents' contention that
the record of proceedings before the Magistrate in issuing the
warrants was
not made available to this Court. It seems to me that
the applicant assumes that the Magistrate had sight only of the
documents
that were presented to her by Captain Sibeko. Consequently
the Court is requested to assume that there was nothing further that
the Magistrate had before her. Further, the reasons for the issuing
of those two warrants were not placed before this Court, for
it to
exercise its mind independently as to whether the Magistrate
misdirected herself or just went through the motions to approve
the
warrants, without applying her mind.
22. It remains the obligation of an applicant seeking
relief of review of a decision, to request from the decision maker
and produce
before Court, a full record of proceedings that served
before the decision maker. The founding affidavit has attached to it
a copy
of the warrant and annexures as well as the affidavit deposed
to by Captain Sibeko which was placed before the magistrate.
23. Rule 53 further authorises an applicant to request
not only the record of proceedings that served before the decision
maker
but also the reasons why such decision was taken. These were
not placed before this Court. The applicant expects the respondents
to explain to this Court what the Magistrate had in mind in arriving
at the decision to issue the warrants and also the manner
in which
she went about doing so.
24. This is illustrated by one of the grounds of attack
on the warrant, raised by the applicant. The warrant indicates that
it may
be executed during
"day/night'.
The applicant
contends that an officer issuing warrants to be served at night has
to be circumspect. It is thus not clear, so the
argument goes,
whether these warrants were authorised to be issued during the day or
at night or both. I will deal in detail with
the day/night argument
later in this judgment.
25. The day/night is an issue which the magistrate would
have been able to explain as part of the record of proceedings as
well
as the reasons for her decision.
26. The applicant further advances an argument that the
Magistrate was served with the application and chose not to oppose.
Therefore,
so goes the argument, everything that is alleged by the
applicant in the founding affidavit concerning the magistrate should
be
accepted as true and fact. The logic behind this argument is that
allegations in the founding affidavit, if uncontested, absolves
the
applicant from placing before Court the record of proceedings and the
reasons for a decision in terms of Rule 53. It is thus
expected of
the Court to declare as invalid the decision of the Magistrate on the
assumption that failure to oppose the allegations
raised by the
applicant implies that these are fact. This argument cannot be
correct. A decision to oppose or not oppose an application
is not a
substitute for request of record of proceedings and reasons for a
decision as envisaged in Rule 53. There are many instances
where a
decision maker would choose for whatever reasons, not to oppose an
application but nevertheless provide the record as well
as the
reasons for a decision.
27. I therefore conclude that the applicant failed to
place before this Court the record of decision and the reasons for
such decision,
in support for relief requesting the invalidation of
the warrants. However the fact that some of the attack on the
warrants are
based ex facie the documents, I am of the view that this
application cannot be dismissed on this ground alone.
28. I now turn to deal with the substantive objections
against the warrants
ex facie.
The
assistance by the officials of the Gambling Board and private
individuals.
29. The applicant contends that the warrants issued were
ultra vires
the provisions of
sections 20
and
21
of the
Criminal Procedure Act 51 of 1977
, as they did not limit the
authorization and execution thereof to police officers but allowed
civilians to participate therein.
This is denied by the respondents.
30.
Ex facie
the warrants, the authority to
execute them is granted to Captain Sibeko. The warrants further
indicate that Captain Sibeko will
be assisted by Sergeant S J
Mosiamedi, Constable M.I. Phooko and Constable P D Baloyi, all police
officers stationed at Brits.
The warrants further refers to a list of
peace officers and computer experts identified in the affidavit of
Captain Sibeko as inspectors
of the Gambling Board, who will assist
members of the police as follows: Mr Vincent Mothiba, North West
Gambling Board, Edwin Ramokhuwa,
North West Gambling Board, Mr.
Hibbert, a Computer Forensics, Mr. J Roux, a Computer Forensics and
Mr. F R Paxton also a Computer
Forensics.
31. The annexure to the warrants further deals with
articles to be seized which includes computer screens and boxes, hard
drives,
server equipment, software, close circuit television security
device, cellular phones of employees found on the premises mentioned
in the search warrant. The annexure concludes by mentioning the
applicable legislation 1n terms of which the warrant is being issued.
32. The applicant refers this court to the matter of
Ruskopoint (Pty) Ltd t/a The Old Mill Gaming Centre v Minister
of SAPS and others (1427/2016) [2016] ZAECGHC 74 (8 September 2016),
as authority that the warrant should only authorize the
police officers and not members of the Gambling Board. I have also
taken
note of reference to the decision of
Extra Dimensions and
Others v Kruger N.O.
2004 (2) SACR 493
(T)
which the
Applicant has cited as authority that any reference to private
individuals in a warrant offends
Section 21(2)
of the
Criminal
Procedure Act.
33. I
carefully considered these judgments and in
particular the
Ruskopoint
case. I noticed that the
court in that case was dealing with the instance where non-police
officers were authorised in the warrant
to carry out searches and
seizures. This is not the position in the matter before this Court.
The cases are thus distinguishable.
34. In the affidavit of Captain Sibeko, a request is
made to the Magistrate to authorize
only Captain Sibeko.
This
is also stated clearly in the warrants. The affidavit as well as the
warrants further refers to the specified police officers
who are
authorized to assist the Captain
in the execution of the warrant.
The peace officers and computer forensics referred to in the
warrant and named in the annexure are not
authorized
to
execute the warrants. Their role as stated in paragraph 18 of Captain
Sibeko's affidavit, is described thus:
"Due to the nature of the business alleged to be
taking place and the envisaged complexity of correctly harvesting the
electronic
evidence from the computer terminals and any associated
devises and identifying the gambling and related equipment, the
specialists
from CSFS and the inspectors of the NWGB
as
appearing
in annexure
G
will be required to
assist
in the search
and seizure."
35. The person authorized in the warrants is a police
officer. The others that appear on the annexure attached to the
warrants are
persons who have been listed to be available to offer
their expertise in ensuring the correct harvesting of the electronic
evidence.
36. My understanding and interpretation of
s20
and s
21
of the
Criminal Procedure Act is
that it does not dis-empower the
police officers authorized to execute a warrant from summoning
assistance from experts in order
to correctly identify and not to
damage or seize electronic evidence that is not connected to the
investigation. The police officer
authorized to conduct searches and
seizures in a warrant would ordinarily not be an expert in electronic
devices. In order to act
in the least intrusive manner in the
execution of the warrants, they would, where applicable and
necessary, require assistance.
37. It must further be understood that the experts
appearing in Annexure "A" to the warrants are not by
themselves authorized
to execute any part of the warrants in the
absence of members of the South African Police. Only Captain Sibeko
is so authorized.
The objections raised by the applicants in regard
to the warrants that they authorised other people other than police
officers
is incorrect. There is thus no merit in this ground of
attack.
Cellular
phones
38. The applicant objects that the warrants did not
specify the cellular phones which were supposed to be confiscated and
the specific
information sought. This alleged failure by the
Magistrate to specify and limit the information to be harvested, so
goes the argument,
may lead to an invasion of privacy.
39. Neither the police nor the Magistrate may in some
instances know in advance as to what information would be found in a
cellular
phone so as to isolate such information linked to the
investigation, from other confidential matters and name it in the
warrant.
It would be a different matter if, after the execution of
the warrant and analysis of the information in the cellular phone,
the
police make public, confidential information which may not be
relevant to the commission of the alleged offences. This ground of
attack has no merit and is dismissed.
Day/night
40. The applicant contends that the warrants do not
limit the search to a day search only. It contends further that the
Magistrate
did not state any justification why it may be possible to
execute the warrants at night as well, where no exceptional
circumstances
existed.
41. The warrants were issued on a pro-forma document
where, amongst others, it is stated that the warrant will be executed
during
the
"day/night time".
The phrase means day or
night. The Magistrate did not cross out the
"night'
part
as Captain Sibeko clearly spelled in the affidavit that the warrant
will be executed
"on 2017-02-03 between 10; 00 and 18;00".
This omission by the Magistrate is not, in my view material and
fatal to the validity of the warrants, seen in the context of Captain
Sibeko's affidavit. It would become relevant if the police would
execute the warrant at night without exceptional circumstances
being
present and stated in the warrants.
42. It is common cause that the warrants were executed
during the day and this fact was known to the applicant even before
this
application was prepared. While I agree that the omission by the
Magistrate to cross out "night" might in the absence
of any
other evidence, create ambiguity and confusion, it is not, in my
opinion and in the context of this case material and fatal
to the
validity of the warrants. I therefore conclude that the warrants
cannot, on this ground alone, be declared invalid.
Objective
jurisdictional facts
43. The applicant contends in the founding affidavit
that Captain Sibeko did not provide its attorney with all the
documents, mainly
the annexures referred to in his affidavit
requesting the warrants. It is further contended by the applicant
that in the absence
of opposition from the Magistrate, it is not
clear whether the documents handed to the attorney with the warrants
are all the documents
that served before the Magistrate. In support
of this contention, the Court is referred to the seminal judgment of
the Constitutional
Court on searches and seizures in the
Minister
of Safety and Security v Van der Merwe and Others,
where the
Chief Justice Mogoeng, writing for the Court, stated the objective
jurisdictional facts required for the issuing of a
valid warrant for
the conduct of search and seizure. In particular, the Chief Justice
stated as follows:
"..
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. Both jurisdictional facts play
a
critical role in
ensuring that the rights of
a
searched person are not lightly
interfered with. When even one of them is missing that should spell
doom to the application for
a
warrant."
44. I am of the view that the Magistrate did not err in
finding that both objective jurisdictional facts exist in Captain
Sibeko's
affidavit, sufficient to issue the warrants. The applicant
further states in argument that the affidavit of Captain Sibeko
refers
to
section 8(a)
and not
section 8
where the offence in
outlines. A subsection to a section in a statute is not interpreted
in isolation, but within the context of
the main section. There is no
merit in this ground of attack and it is rejected.
Cash not
specified in the warrants
45. The applicant further contends that in executing the
warrants, the police officers took an undisclosed amount of cash
which
was not specifically authorized in the warrants. The very same
applicant states in paragraph 20 of the founding affidavit that the
Court is not invited to deal with what transpired during the
execution of the warrants.
46. Adjudicating on such matters would require evidence
from a list of witnesses who were present and witnessing or
participating
in the search and seizures. I agree that for purposes
of an urgent application, also in view of the fact that where there
are arrests
following such warrant, the Criminal Court may be seized
with such matters. It will thus be inappropriate for the parties to
expect
a court hearing urgent applications to traverse the factual
matrix of what transpired in the execution of the warrant.
47. However, it will, in some instances, be impractical
to expect the police officers and those authorized to issue warrants
to
speculate, in the absence of evidence, as to how much money would
be found on the premises so as to specify it in the warrant. That
is
the reason why warrants would authorize search and seizure by making
reference generally to
any article that is connected to the
suspected crime.
Conclusion
48. Having regard to all the findings and conclusions
expressed in this judgment, I am of the view that the applicant has
not provided
this Court will sufficient grounds upon which these
warrants should be set aside. In particular, the applicant failed to
file a
replying affidavit to the answering affidavit by the
respondents. In applying the
Plascon Evans Rule,
the
respondents' version should prevail to the extent that the applicant
has not disputed these in the replying affidavit.
49. During argument the Court invited both parties to
submit heads of argument, citing the authorities in support of their
contentions,
where necessary. Both parties submitted the heads of
argument. However the attorney for the applicant seized that
opportunity to
deal with the issues raised in the respondents'
answering affidavit. This is clearly not in accordance with the
motion court rules
and is unacceptable.
50. The application must thus fail and the costs should
follow the result.
51. In the premises, I make the following order:
1. The application for the setting aside or declaration
of invalidity of the warrants issued is dismissed. Further, the
consequential
relief that the goods be returned is also dismissed.
2. The Applicant is ordered to pay the costs of this
application to the respondents and the Gambling Board.
__________________________
S P MOTHLE
Judge of the High Court.
Gauteng Division
Pretoria
For
the Applicant:
Attorney Vardakos
Instructed by:
Vardakos Attorneys
124 General Hertzog Road
Three Rivers
Vereeniging
For the Respondent:
Advocate M Bothma
Instructed by:
The
State Attorney Pretoria
For the
Fourth
Respondent:
Advocate ZM Makoti
Instructed by:
Maponya lnc
Arcadia, Pretoria