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[2016] ZAGPPHC 257
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Heaney v S (A464/2015) [2016] ZAGPPHC 257 (19 April 2016)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
19/4/2016
APPEAL NO:
A464/2015
Reportable
Not
of interest to other judges
Revised
In
the matter between:
SAREL
ALBERTUS
HEANEY
Appellant
and
THE
STATE
Respondent
JUDGMENT
PETERSEN
AJ:
INTRODUCTION
[1]
This is an appeal against conviction with leave of Molopa-Sethosa and
Hughes JJ on petition in terms of section 309C of the
Criminal
Procedure Act, Act 51 of 1977. The appellant pleaded not guilty to
and was convicted on 17 September 2013 of a contravention
of section
4(1) read with sections 1 and 20(1)(a) of the Precious Metals Act,
Act 37 of 2005: Possession of unwrought precious
metals: Gold and
Platinum valued at R37188.
BACKGROUND FACTS
[2]
An explanation of plea, including the basis of defence and admissions
was tendered in terms of section 115 of the Criminal Procedure
Act in
the following terms: On 12 September 2013 at" approximately
16h30 members of the South African Police Services arrived
at the
business address of Eye-link Electrics CC (the entity) at 67 Wright
Street, Nuffield Springs, an entity of which the appellant
is a
member, with a document proclaiming to be a search to search the said
property. They were in possession of an additional search
warrant for
a property at 8 Duiker Street, President Dam, Springs. The
requirements for the issue of the search warrant for 67
Wright Street
was challenged on the basis that the search warrant was authorized by
a magistrate on what purported to be a typed
affidavit by one
Lieutenant Colonel PN Ngcobo which was neither signed nor
commissioned. The entity applied for a license to operate
as a
refinery in terms of the Precious Metals Act, which at the time of
trial was pending before the Diamonds and Precious Metals
Regulator
(the Regulator) under reference number AP08747. Representatives of
the Regulator conducted a thorough investigation into
the manner in
which the entity proposed to conduct its refining business; and the
entity adhered to all the relevant requirements
of the Precious
Metals Act. The entity came to be in possession of 20 tons of
ordinary soil with a high metal content procured
from and on
instruction from an entity called AMOREF WTY) LTD (AMOREF), for the
sole purpose to test and calibrate equipment belonging
to the entity
subsequent to a visit from the Regulator. A letter from AMOREF
confirming same formed part of the plea explanation.
The soil was
delivered approximately two months before the incident. The appellant
admitted that he was found in possession of
soil with a high metal
content. He disputed that the soil had been procured unlawfully or
that he had contravened the provisions
of the Precious Metals Act.
[3]
It is common cause that the appellant was found in possession of soil
with a high metal content on 12 September 2012 in the
district of
Springs. In my view, the main issue in this appeal is the validity of
the search warrant issued by the additional magistrate
at Springs on
application by Lieutenant Colonel Ngcobo. This is noted as the 5
th
ground of appeal of 12 grounds. The additional issues raised on the
merits in the remaining 11 grounds are ancillary to the main
issue. A
finding that the search warrant was invalid would vitiate the
evidence on the merits and no further consideration thereof
would be
required.
THE TEST ON APPEAL
[4]
In
S v
Hadebe
[1]
,
the court said: " ...in the absence of demonstrable and material
misdirections by the trial court, its findings of fact were
presumed
to be correct and would only be disregarded if the recorded evidence
showed them to be clearly wrong."
THE VALIDITY OF THE
SEARCH WARRANT
[5]
The validity of the search warrant was placed in dispute as early as
the plea explanation. The issue of admissibility of evidence
and its
admission or exclusion vests predominantly with the judicial officer.
The admission or exclusion of evidence more often
than not sets the
course for the conduct of the trial. The learned magistrate
accordingly had to be alive at this early stage,
as she was at
judgment, to the admissibility of any evidence which would follow as
a result of the search warrant. What the appellant
raised at trial is
tantamount to an alleged violation of the right to privacy contained
in the Bill of Rights - section 14 of the
Constitution, which
includes,
inter
alia,
the
right of persons not to have their property or home searched; and not
to have their possessions seized. The correct course would
have been
to identify with particular clarity the issue which the appellant was
challenging and then to embark upon a trial-within-trial
to
adjudicate the alleged section 35(5)
[2]
violation.
[6]
The failure to engage .in a trial within a trial demonstrates that
the magistrate in her judgment relegated the issue of admissibility
to an issue of credibility. I am embellished in this view by the
judgment of the magistrate at page 247, lines 19-25 where she
says:
"The court also finds that it is immaterial whether the
affidavit by the state witness is defective because of the fact
that
he did not state the place where his office is situated as required
by the Act. The court finds that even if these witnesses
had not
applied for a warrant to search the premises of the accused the court
would still be in a position to
render the evidence admissible
,
seeing that the version of the accused is that he said that he
allowed the police to conduct the search because he had nothing to
hide." It bears mentioning that the appellant allowing the
police to search his premises adds nothing to the fact that once
a
search warrant is produced he has no choice but to comply with the
terms of the search warrant, subject only to his right to
later
challenge the validity thereof. Did the failure of the magistrate to
deal with the admissibility challenge in terms of section
35(5)
constitute a material misdirection to vitiate the proceedings? The
appellant submits that the search warrant was invalid.
The respondent
conceded at the hearing of the appeal that the search warrant was
invalid. In light of the concession by the respondent,
I embark on an
act of supererogation to re-affirm the requirements for the issue of
a search warrant to restate the law and approach
to search warrants.
THE REQUIREMENTS FOR THE
ISSUE OF A SEARCH WARRANT
[7]
The search warrant was applied for and issued by the additional
magistrate Springs on pro forma form (J51) in terms of section
20, 21
and 25 of the Criminal Procedure Act. The Constitutional Court and
Supreme Court of Appeal have settled the law dealing
with the issue
of search warrants, setting out a number of principles. I accordingly
quote in detail what the SCA said in
Goqwana
v Minister of Safety and Security NO and Others
[3]
:
"[13]
This case raises questions of fundamental constitutional importance.
Provided there is no abuse of process, the issuing
of search warrants
and the seizure of articles consequent thereupon are a vital, indeed
necessary, element in the effective combating
of crime. On the other
hand, all people within the Republic of South Africa have
constitutionally enshrined rights to dignity,
privacy, freedom,
security, trade and property. Earnest though the support of the
courts for the SAPS in their endeavours to combat
crime must be,
these constitutional rights have especial significance. More
particularly in view of our history, that significance
is cardinal in
magnitude.
[14]
Iridescent in
Investigating Directorate: Serious Economic Offences
and Others v Hyundai Motor Distributors (Pfy) Ltd and Others: In re
Hyundai
Motor Distributors (Pty) Ltd and Others v Smit NO and Others,
Thint
and
Van der Merwe,
is the requirement that the
courts must strike a wholesome balance between, on the one hand, the
dignity and privacy of every citizen
and, on the other, support for
the state in combating crime.
[15]
A brief outline of the basic principles relevant to search warrants
is accordingly apposite.
Minister of Justice and Others v Desai NO
makes it clear that it has long been recognised in our law that a
search warrant 'constitutes a serious encroachment on the rights
of
the individual' and that careful scrutiny by the courts is required.
[16]
In
Van der Merwe
Mogoeng J, delivering the unanimous judgment
of the court, said in paras 55 - 56: 'What emerges from this analysis
is that a valid
warrant is one that, in a reasonably intelligible
manner:
(a)
States the statutory provision in terms of which
it is issued;
(b)
identifies the searcher;
(c)
clearly
mentions the authority it confers upon the searcher;
(d)
identifies the person, container or premises to be searched;
(e)
describes the article to be searched for and seized, with
sufficient particularity; and
(f)
specifies the offence which
triggered the criminal investigation and names the suspected
offender. In addition,
the guidelines to be observed by
a
court considering the validity of the warrants include the
following: (a) · The person issuing the warrant must have
authority
and jurisdiction; (b) the person authorising the warrant
must satisfy herself that the affidavit contains sufficient
information
on the existence of the jurisdictional facts; (c) the
terms of the warrant must be neither vague nor overbroad; (d)
a
warrant must be reasonably
intelligible to both the
searcher and the searched person; (e) the court must always consider
the validity of the warrants with
a
jealous regard for the
searched person's constitutional rights; and (f) the terms of the
warrant must be construed with reasonable
strictness.'
- (my
emphasis)
[20]
Insofar as the failure of the warrant to refer to a specific police
officer is concerned, the provisions of s 25(1) of the
CPA are
relevant. This section provides that:
'Power
of police to enter premises in connection with
...
any offence
(1)
If it appears to a magistrate or justice from information on oath
that there are reasonable grounds for believing - ...
(b)
that
an offence has been or is being or is likely to be committed or that
preparations or arrangements for the commission of any
offence are
being or are likely to be made in or upon any premises within his
area of jurisdiction, he may issue a warrant authorising
a
police
official
to enter the premises in question at any reasonable time
for the purpose - ...(ii) of searching the premises or any person in
or
upon the premises for any article referred to in section 20 which
such
police official
on reasonable grounds suspects to be in
or upon or at the premises or upon such person; and (iii) of seizing
any such article.'
[Emphasis added.] The repeated correlation between
'a' and 'such', when reference is made to a 'police official' in
these subsections,
is indicative of a singular degree of specificity.
The references to 'a police official' and 'such police official' in
these subsections
are not reasonably capable of being interpreted in
any other manner.
[21]
This approach was correctly followed in
Naidoo and Another v
Minister of Law and Order and Another, Smit
&
Maritz
Attorneys and Another v Lourens NO and Others;
and
S v Ntsoko.
In
Naidoo
it was said that, where s 25(1) of the Criminal
Procedure Act 51 of 1977 (the CPA) refers to a 'police official',
that indicated
'that the Legislature intended that an
identified
police officer
should be
named
and should act throughout'.
(Emphasis added.) In
Smit
&
Maritz v Lourens
Van
Oosten J followed
Naidoo
and required that a
'known and
named
police official' should be authorised in terms of a search
warrant. (The emphasis appears in the original text.) In
Naidoo
Roux J relied on the provisions of s 29 of the CPA, which require
a 'strict regard to decency and order' in the search of any person
or
premises in coming to this conclusion.
[23]
In
Ntsoko
Mabuse J observed, among other criticisms of various
search warrants, that: 'All the said warrants are addressed to "the
Station
Commander. They have not been addressed to a specifically
named officer nor have they been addressed to a particular police
station.
This is contrary to the provisions of Section 21(2) of the
[Criminal Procedure Act] . . . .' The judge found, for a number of
reasons,
that the terms of the search warrants were overbroad, did
not satisfy the test in
Powell
and set them aside. The full
court hearing the present matter disagreed with the criticism in
Ntsoko,
of the warrant being addressed simply to 'the Station
Commander'.
[24]
In
Silwana and Another v Magistrate, District of Piketberg and
Another,
however, Foxcroft J, with whom Dlodlo AJ concurred,
noted
en passant,
when referring to criticisms that a search
warrant had not referred to a specifically named police officer or to
the officer commanding
of a particular· police station, that
'(i)t would be a matter of no difficulty for anyone to ascertain who
the station commander
was on the date when the warrant was signed'
and that it 'makes more sense to specify a station commander than a
named person who
might not be available at the very moment when the
search needed to be carried out'. This judgment arose within the
context of
the application for the recusal of a magistrate in a
trial, where he had earlier issued the search warrant. In regard to
the naming
of the police official, the approach adopted in
Si/wana
does not, however, accord with either a literal or purposive
approach to the interpretation of s 25(1) of the CPA.
[25]
In the context of a purposive interpretation of s 25(1) of the CPA,
Mr
Mtsweni,
counsel for the first to fourth respondents,
conceded that, in practice, it will be rare indeed that the station
commander conducts
a search in terms of s 25 of the CPA Normally it
will be the investigating officer. The interpretation that the police
official
should be named in the search warrant acts as a safeguard
against abuse so that, when the warrant is executed, a person at the
premises to be searched can ask not only for the police official to
produce his or her police identity card but also to demonstrate
the
reference to him- or herself in the warrant itself. This
interpretation also reinforces the principle of accountability, more
especially as it will ordinarily be the investigating officer who
applies to the magistrate for a search warrant leading to the
search
itself. Of course, the circumstances will very often require that the
investigating officer be assisted by other police
officials. It
remains salutary, however, that at least one police official
responsible for the search should pertinently be identified
in the
actual search warrant.
[26]
As for the requirements that a search warrant should specify the
offence in connection with which the search is to be conducted,
and
should be 'reasonably intelligible', the provisions of the NGA and
CGA should further be read together with the provisions
of ss 20, 21
and 25 of the CPA.
[30]
A search warrant is not some kind of mere 'interdepartmental
correspondence' or 'note'. It is, as its very name suggests, a
substantive weapon in the armoury of the state. It embodies awesome
powers, as well as formidable consequences. It must be issued
with
care, after careful scrutiny by a magistrate or justice, and not
reflexively upon a mere 'checklist approach'.
[31]
What of the affidavit upon which the magistrate relies in terms of s
25 of the CPA? In the body of the search warrant it does
indeed refer
specifically that it appears to the magistrate 'from information on
oath that there are reasonable grounds to believe
that . . . '. It
therefore refers directly to the affidavit or sworn statement of Mr
Lekoto. Section 21(4) of the CPA requires
that, after execution, the
police official who has executed the warrant shall 'upon demand of
any person whose rights in respect
of any search or article seized
under the warrant have been affected, hand to him a copy of the
warrant'. In
Polonyfis v Minister of Police and Others NNO
Cachalia JA, delivering the unanimous judgment of this court,
said: 'After the search a copy of the warrant and any document
referred
to in it must - on demand - be handed to the person in
charge [of the premises] who may then decide whether or not to
challenge
the validity of the warrant, either because it was
unlawfully issued or unlawfully executed.' It is accordingly
imperative that
the affidavit or sworn statement in support of the
warrant should accompany the warrant and be handed over together with
it. This
would, additionally, expedite any court application in which
a person may wish to contend that his or her rights were adversely
affected by the search. This injunction accords with the
constitutionally enshrined right of every person to have access to
information
'that is held by another person and that is required for
the exercise or protection of any rights'. This right is embodied in
the
Promotion of Access to Information Act 2 of 2000
. It is
regrettable that the appellant had to wait several weeks before he
was able to receive a copy of Mr Lekoto's sworn statement
from the
police.
[32]
I am mindful of the recent decision of the Constitutional Court in
Ngqukumba v Minister of Safety and Security and Others,
33
in which a helpful analysis was given of the circumstances in
which the mandament van spolie would be available. We are also
mindful
of the fact that in
Polonyfis,
after having referred
to
Pretoria Portland Cement
Co
Ltd and Another v
Competition Commission and Others,
this court indicated that, in
the absence of an 'abuse of power' or a 'gross violation' of the
rights of a person to be searched,
it would be slow to find that a
search warrant is unlawful on purely technical grounds ...
[33]
The standard forms or 'template' used for the issue of search
warrants will have to be revised in the light of this judgment.
Nevertheless, as Mogoeng J said in
Van der Merwe,
the
retrospective invalidation in respect of all past warrants issued in
a manner that is defective, as a consequence of this judgment,
does
not ensue. This, as he observed, might give rise to undesirable
consequences. The courts must adjudicate each individual case
on its
own merits and all warrants, hitherto issued contrary to the
guidelines herein contained, remain valid unless set aside
on a
case-by-case basis.
[8]
The search warrant in the present appeal issued on the pro forma
(J51) speaks to the concerns raised in
Goqwana
supra.
An
examination thereof reveals the following:
[8.1]
It is addressed to the Station Commander without identifying the
police station. The guidelines set out in
Goqwana
at
paragraphs [23] to [25] in this regard are apposite.
[8.2]
The offence and article is not identified with particular clarity,
referring merely to illegal precious metals. It -is incumbent
on the
magistrate to carefully scrutinize the application to satisfy himself
that an offence exists or that the article could constitute
an
article which forms the subject matter of an offence. A mere
checklist approach (Mark with an 'X' in the applicable block) does
not suffice. Paragraph [30] of
Goqwana
is apposite.
[8.3]
It is a requirement that a copy of the sworn affidavit which formed
the basis of the application for the search warrant be
handed to the
person affected with a copy of the search warrant. The appellant's
evidence was that the typed "statement under
oath" of Lt
Colonel Ngcobo which is unsigned and not commissioned was handed to
him with a copy of the search warrant on the
12 September 2012(the
date of the search). Despite the protestations of Lt Colonel Ngcobo
in distancing herself from the document,
which does not comply with
the peremptory provisions of the Regulations Governing the
Administering of an Oath or Affirmation,
the ineluctable deduction
from the late admission into evidence of a later handwritten
"statement under oath" is that
such statement which the
state could have used when the defence raised the issue with Lt
Colonel Ngcobo was not available and was
a recent fabrication to
cover the unsigned, non-commissioned statement handed to the
appellant at the time of the search. Paragraph
[31] of
Goqwana
is
apposite.
[9]
Had the learned magistrate followed the course of a trial within a
trial in terms of section 35(5) of the Constitution, the
search
warrant in all probability would have been ruled inadmissible
signalling the end of the matter as the backbone of the state's
case
rested on the search warrant. It is opportune to conclude with the
following salutary statement by Cameron JA in
S
v Tandwa and Others
[4]
:
"In
deciding whether evidence obtained in a manner that violates any
right in the Bill of Rights should be excluded or not,
judicial
officers and practitioners will be well advised to heed to the
following: "In this country's struggle to maintain
law and order
against the ferocious onslaught of violent crime and corruption, what
differentiates those committed to the administration
of justice from
those who would subvert it is the commitment of the former to moral
ends and moral means. We can win the struggle
for a just order only
through means that have moral authority. We forfeit that authority if
we condone coercion and violence and
other corrupt means in
sustaining order. Section 35(5) is designed to protect individuals
from police methods that offend basic
principles of human rights."
CONCLUSION
[10]
In the result:
The appeal against
conviction is upheld.
_____________________________
AH
PETERSEN
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION
PRETORIA
I
agree and it is so ordered
____________________________
SS
MPHAHLELE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION
PRETORIA
Appearances:
On
behalf of the Appellant : Mr Dickson
On
behalf of the Respondent: Adv Williams
Director
of Public Prosecutions PRETORIA
DATE
HEARD: 18 April 2016
DATE
OF JUDGMENT: 19 April 2016
[1]
1997 (2) SACR 641
(SCA) at 641d
[2]
"Evidence obtained in a manner that violates any right in the
Bill of Rights must be excluded if the admission of that evidence
would render the trial unfair or otherwise be detrimental to the
administration of justice."
[3]
2016 (1) SACR 384 (SCA)
[4]
2008 (1) SACR 613
(SCA) at (121)