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[2016] ZAFSHC 65
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Sithole v Minister of Police and Another (3069/2015) [2016] ZAFSHC 65 (28 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case No. : 3069/2015
In
the matter between:-
EDDIE
SITHOLE
Applicant
and
MINISTER
OF
POLICE
1
st
Respondent
DIRECTOR
OF PUBLIC PROSECUTIONS
2
nd
Respondent
HEARD
ON:
21
APRIL 2016
JUDGMENT
BY:
KRUGER,
J
DELIVERED
ON:
28
APRIL 2016
[1]
This is an application declaring a search and seizure conducted at
applicant’s home at 3am on the morning of 23 November
2014 to
be unlawful, setting aside the search and seizure, and ordering the
first respondent to return seized items to the applicant.
[2]
The application was launched on the basis that no search warrant
existed. In the answering affidavit the first respondent
said
the search and seizure were conducted on the strength of a search
warrant, which is attached. The second respondent,
the Director
of Public Prosecutions, filed a notice to abide.
[3]
In the replying affidavit the applicant attacks the search warrant on
a number of grounds. The first is that it is addressed
to “The
Station Commander” not to a named and identified police
official as required by section 21 of the Criminal
Procedure Act 51
of 1977 (the Act).
The
search warrant is addressed to “The Station Commander”.
It is not stated of which police station.
The
applicant also complained that the warrant did not authorise the
taking of all the items seized. In argument Mr Omar raised
the
point that the search and seizure were conducted in contravention of
section 21(3)(a) of the Act which reads:
“
(3)(
a
) A
search warrant shall be executed by day, unless the person issuing
the warrant in writing authorizes the execution
thereof by night.
”
Mr
Omar said the magistrate who issued the warrant did not authorise the
execution thereof by night.
[4]
A warrant addressed to “The Station Commander” was set
aside in
Goqwana
v Minister of Safety and Security NO and Others
(20668/14
[2015] ZASCA 186
(30 November 2015) per Wallis JA.
The police officer who is to execute the warrant must be identified
to ensure accountability
(par [26]).
[5]
The warrant did not authorise the search by night. The roneod
form on which the warrant was signed states:
“
THESE
ARE THEREFORE to authorize you to search during day time/night time *
the identified person/to enter and search the identified
premises and
to search any person found on or at such premises and to direct you
to seize the said …..
ARTICLES
AS PER ANNEXURE A
……
if found, and to deal with it accordingly to law/bring it before me
to be dealt with according to law.
”
The
asterisk (*) is not explained on the warrant attached to the papers.
[6]
Mr Williams, who appeared for the first respondent stressed that an
applicant must make out its case on the founding affidavit,
with
reference to
Port
Nolloth Municipality v Xhalisa and Others; Luwalala and Others v Port
Nolloth Municipality
1991 (3) SA 98
(C) at 111E;
National
Council of SPCA v Openshaw
[2008] ZASCA 78
;
2008 (5) SA 339
(SCA) at 349A-B.
[7]
Mr Williams pointed out, as to privacy, that it was pointed out in
Magajane
v Chairperson, North-West Gambling Board and Others
[2006] ZACC 8
;
2006 (2) SACR 447
(CC) par [68] that a search warrant is a mechanism
which balances the individual’s right to privacy with the
public interest
in combatting crime (See also
Minister
of Safety and Security and Others v Mohamed and Another
2012 (1) SACR 321
(SCA) par [20]).
[8]
The rule that an applicant must make out his case in the founding
affidavit is not absolute. A court can permit the filing
of
further affidavits (see
Shephard
v Tuckers Land and Development Corporation (Pty) Ltd (1)
1978 (1) SA 173
(W) at 178A). A court may not decide a case on
points not raised. The point to be decided must appear form the
founding
affidavit (
Director
of Hospital Services v Mistry
1979
(1) SA 626
(A) per Diemont JA at 635H).
[9]
It seems to me that where the cause of action in a damages claim is
assault, in the form of a kick, that the respondent could
admit that
he hit the applicant with a fist. The court could then assess
the situation on the basis of the blow with the
fist, and find for
the applicant. Similarly, in a sequestration application the
applicant may rely on a particular debt.
In the answering
affidavit the respondent might refer to another debt. It is not
wrong for the court to decide the matter
on the basis of the debt
raised in the answering affidavit, if that issue has been fully
ventilated.
[10]
In the present matter the cause of action is an alleged wrongful
search and seizure. The respondent relies on a warrant.
The warrant stands on its own legs, and must be assessed on the
contents thereof. The contents of the warrant were fully
ventilated by counsel in argument. A reading of the warrant
shows two things:
(1)
It is addressed to “The Station Commander”. In the
light of the findings of the Supreme
Court of appeal in the
Goqwana
-case
(
supra
)
that is fatal. The warrant is of no force or effect on that
basis alone.
(2)
The warrant does not authorise a search by night. The fact that
there is no deletion or the addition
of “and” as to the
time of search, shows that the magistrate issuing the warrant did not
apply his or her mind to the
time of search. But it is not
necessary to decide this case of that point.
The
fact that the warrant is directed to “The Station Commander”
is fatal. It might as well have been addressed
“To whom
it may concern”. That is not the intention of section
21. A person, who can be held accountable,
must be named.
More than one person can be named. The search must be set
aside. As to the pistol and ammunition,
the applicant has not
been able to provide proof that he is entitled to validly possess the
pistol and ammunition.
ORDER
1.
The search and seizure conducted at applicant’s home at 1922
Europa Street, Riebeeckstad Welkom on 23
November 2014 is declared
unlawful and set aside.
2.
The first respondent is ordered to return to the applicant the items
seized during the search. The respondent
will only return the
colt 45 pistol and ammunition if the applicant is able to provide
proof that he is entitled to possess same
lawfully.
3.
The first respondent is ordered to pay the costs of the application.
_____________
A.
KRUGER, J
On
behalf of Plaintiff:
Mr Z Omar
Instructed
by:
E G Cooper Attorneys
BLOEMFONTEIN
On
behalf of Defendant:
Adv A Williams
Instructed
by:
State Attorney
BLOEMFONTEIN
/wm