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[2017] ZAGPPHC 342
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Grammaticus (Pty) Ltd v Minister of South African Police and Others (8694/17) [2017] ZAGPPHC 342 (22 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 8694/17
DATE:
22/03/2017
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 10
H00
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.
Ho
wever, 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.
________________
SP
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:
Maponyalnc
Arcadia, Pretoria