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2015
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[2015] ZAFSHC 193
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Elefterios Polonyfis t/a Little Manhattan v Minister of Safety And Security N.O and Others (2273 / 2015) [2015] ZAFSHC 193 (18 September 2015)
IN THE HIGH COURT,
BLOEMFONTEIN
FREE STATE DIVISION,
BLOEMFONTEIN
Application No.: 2273 /
2015
DATE: 18 SEPTEMBER 2015
In the matter between:
ELEFTERIOS POLONYFIS T/A LITTLE
MANHATTAN
.................................................
Applicant
And
THE MINISTER OF SAFETY AND
SECURITY
N.O
............................................................................................................
First
Respondent
THE PROVINCIAL COMMISSIONER OF
THE
SAPS
.................................................................................................................
Second
Respondent
SAPS, FREE STATE PROVINCE N.O
BRIGADIER K.J RAMOKOTJO
N.O
.....................................................................
Third
Respondent
LIEUTENANT COLONEL JOUBERT
N.O
..........................................................
Fourth
Respondent
HEARD ON: 28 MAY 2015
JUDGMENT BY: MBHELE, AJ
DELIVERED ON: 18 SEPTEMBER 2015
REASONS
INTRODUCTION AND BACKGROUND
[1] On 28 May 2015 the Applicant and
Respondents appeared before me and I made the following order:
That:
1.1 The forms and services in terms of
Rule 6 (12) of the Rules of High Court are dispensed with and the
matter is disposed of as
one of urgency in terms of this rule;
1.2 Mandamant Van Spolie;
1.3 The immediate return of all the
items seized from the Applicant’s premises;
1.4 Respondent to bear costs of the
application including costs for one counsel;
1.5 Reasons for judgement for to be
furnished upon request by either party;
[2] The respondents have since
requested reasons for judgement. These are my reasons.
[3] The Applicant is a business man
trading as Little Manhattan internet lounge.
[4] The first Respondent is the
Minister of Safety and Security N.O. and is cited in his official
capacity as the political functionary
responsible for the South
Africa Police Services in the Republic of South Africa.
[5] The second Respondent is cited in
his official capacity as the officer who in terms of the provisions
of Section 12 of the South
African Police Service Act 68 of 1995 (the
Act) has command of and control over the police service in the Free
State Province.
[6] The third Respondent is cited in
his capacity as the member of South African Police Service who:
(a) At all times acted within the scope
and ambit of his appointment as an officer of the South African
Police Service;
(b) Who was designated in the section
13 (7) Authorisation issued by the second respondent as the officer
under whose command the
are described in the authorisation had to be
cordoned off;
[7] The fourth Respondent is cited
herein in his official capacity as the official who proceeded to
carry out search and seizure
at the Applicant’s premises.
ISSUES NOT IN DISPUTE
[8] It is common cause that on 10 May
2015 the second Respondent issued and Authorization in terms of
Section 13(7) of the Act,
authorizing that the area bordered by St
Georges Street to the South, Power street to the East, Douglas street
to the North, and
Harvey road to the West in Bloemfontein be cordoned
off by the members of the South African Police Service on 11 May 2015
from
08h00 - 13h00.
[9] The Applicant is running his
business at Victoria Hotel, a building situated within the area
mentioned under the Authorization.
[10] The authorization directs in
addition to cordoning off of the area described therein for purpose
of ensuring the safety of
the public at Victoria Hotel, that all
members acting in terms of the authorization must:
(i) Without warrant search persons,
premises, vehicles, receptacles or objects of whatsoever nature in
order to seize illegal firearms,
ammunition, dangerous weapons and
any object referred to in Section 20 of the Criminal Procedure Act
(the CPA).
(ii) Seize any article referred to
above and deal with it in terms of the CPA or any other applicable
legislation.
(iii) Upon demand of any person whose
rights are or have been affected by the search;
(iv) Exercise any of the powers
authorization thereby with due regard to the Fundamental rights of
every person.
[11] The authorization was used to
carry out a raid at the Applicant’s business on 11 May 2015.
[12] In the process of the raid at the
Applicant’s place of business the following items were seized:
(i) 14 MSI touch screen with built in
processor and speakers
(ii) 1 Router
(iii) 1 Laptop
(iv) 1 CCTV recording device
[13] All these items belong to the
Applicant.
DISPUTE
[14] Parties are in variance on whether
or not the Section 13(7) authorization was valid and whether it was
executed in terms of
the law. They are further not in agreement on
whether the respondents committed an Act of spoliation or not.
CONTENTIONS BY THE PARTIES
[15] Mr Jagga submits for the
applicant that the applicant is entitled to bring an urgent
application as continued dispossession
of his property resulted in
huge loss of income and costs for rental. The Applicant is of the
view that the search and seizure
constituted the infringement of the
Applicant and his employees’ right to privacy. It is further
submitted that the Applicant
would suffer real loss or damage if he
were to rely on the normal procedure provided for in the rules of
court. The Applicant is
of the view that commercial urgency justifies
a departure from the rules of court regarding time and service.
It is further submitted that the
Respondents failed to bring facts to justify the issuing of the
authorization. It is further argued
that the authorization exceeded
the boundaries set by Section 13(7) (c) of the South African Police
Services Act.
[16] It is further argued that even if
the authorization was valid, the search and seizure of applicant’s
computers was not
related to the object of the authorization and
therefore unlawful. The items seized during the search did not fall
within the object
of the authorization. There was no allegation that
on the date of the raid there was any observation of illegal gambling
taking
place in the premises.
[17] It is further argued that the
items seized from the applicant’s business constituted no
threat to security and confiscation
of the said items was unlawful,
making spoliation proceedings apposite. It is further argued that the
fact that the National Prosecutions
Authority declined to prosecute
is an indication that there was no gambling activity in the premises.
[18] Bhana. SC for the respondents,
contends that the applicant failed to make a case for urgency. He
further argues that the applicant
used the wrong platform to
challenge the authority as it must be challenged in review
proceedings. It is further contended that
the authority is an
administrative act, and such actions stand until set aside. Even an
unlawful administrative Act may produce
lawful results.
[19] It is contended further that
Applicant failed to show how his business that has only been running
for two months would be crippled
by the confiscation of the goods
seized.
[20] It is contended further that the
raid was done as part of “Operation Fiela” targeting
illegal immigrants, organised
crime and illegal businesses, and the
Applicant’s business fell within the scope of the operation.
LEGAL PRINCIPLES
[21] The reference to Section 20 of the
Criminal Procedure Act in subsection (7) ( c) of Section 13 of the
Act does not widen the
ambit of the provision so as to render lawful
the seizure of articles falling outside the specified object of the
written authorization.
The articles seized in terms of the above
section must meet the requirement of paragraphs (a), (b) or (c) of
Section 20 (see Worali
v Minister of Safety and security 2008
JDR0764(TK).
[22] Rule (6) (12) (a) and (b) provide
as follows:
(a) “In urgent applications the
court or a judge may dispense with the forms and service provided for
in these rules and may
dispose of such matter at such time and place
and in such manner and in accordance with such procedure ( which
shall as far as
practicable be in terms of these rules) as to it
seems meet,
(b) In every affidavit or petition
filed in support of any application under paragraph (a) of this
subrule, the applicant shall
set forth explicitly the circumstances
which he avers render the matter urgent and the reasons why he claims
that he could not
be afforded substantial redress at hearing in due
course”
[23] The respondents are correct in
pointing out that the applicant must show a proper degree of urgency
for the court to allow
deviation from the rules.
1. The rules are designed to ensure a
fair hearing and should be interpreted in such a way as to advance
and not to reduce the scope
of the entrenched right to a fair trial
contained in Section 34 of the constitution see ( Scott v Golden
Valley Supermarket
2002 (3) All SA 1
(SCA)
In Federated Trust v Botha
1978 (3) SA
645
(A) it was held that:
‘The rules are not an end in
themselves to be observed for their own sake. They are provided to
secure the inexpensive and
expeditious completion of litigation
before the courts’.
APPLICATION OF LAW AND FINDINGS
[24] The Applicant disputes that there
was any gambling activity operating in the premises in so far as he
contends that the premises
were used as an internet lounge.
[25] It is clear from De Bruyn’s
affidavit that on the date of search and seizure there was no
gambling activity observed
in the Applicant’s premises. The
only gambling activity he alleged to have observed was on a slot
machine 17 days before
the raid was carried out. There is no
allegation that the computers were used to carry out illegal
activities.
[26] Although the police have a right
to act proactively to combat criminal activities I am of the view
that in the instant case
evidence before me does not show that
confiscation of the goods afore mentioned was justified.
[27] It is clear from the papers before
me that the Applicant is renting the premises from which his business
is operating.
[28] The first respondent had on the
date of the hearing been in possession of the seized goods for over
15 days but there is no
evidence that gambling material was retrieved
thereon.
A laptop is a generic item which is
most of the time kept for personal use. Confiscation of such an item
for the reason advanced
by the respondent is in my view, violation of
one’s privacy as guaranteed by Section 14 of the constitution.
[29] There is no doubt that the 1st
respondent’s continued possession of the goods is causing
irreparable harm to the Applicant’s
business in that the
Applicant continues to loose profit, money towards rental and
goodwill due to deprivation of his tools of
trade.
[30] I have no doubt in my mind that
the issuing of the authorization was appropriate in the circumstances
regard being had to the
prevailing circumstances at the time of its
issue as there were a number of operations carried out to rid
buildings of illegal
immigrants and other illegal activities. It is
its execution that, in my view, failed to meet the object set out in
Section 13
(7) of the Act.
[31] The applicant’s goods were
seized on a mere suspicion that they were used in furthering gambling
activities although
such suspicion could not be substantiated.
[32] The execution of the authorization
in the instant case went beyond the object specified in terms of
Section 13(7) of the Act.
[33] It is also not clear how seizure
of the aforementioned goods would have achieved the object of the
authorization.
[34] I am persuaded that continuous
loss of income and good will by the Applicant is a reason sufficient
enough to justify departure
from the Rules of this court relating to
urgency and to justify the applicant approaching this court on an
urgent basis.
COSTS
[35] The Applicant was successful. The
Applicant requested that the respondents who choose to oppose the
application should be ordered
to pay the costs of the application on
a punitive scale of attorney and own client. All the respondents
opposed the application.
There is no reason why the costs should not
follow the event in this matter.
[36] It is for the above reasons that I
made the following order:
(i) That the forms and services in
terms of Rule 6(12) of the Rules of High Court be dispensed with and
the matter to be heard as
one of urgency in terms of this rule.
(ii) Mandamant Van Spolie.
(iii) Immediate return of all the items
seized from the Applicant’s premises.
(iv) Respondents to bear the costs of
the application including costs for one counsel.
(v) Reasons for judgment to be
furnished upon request by either party.
NM MBHELE. AJ
On behalf of applicant: Adv. Jagga
Instructed by: Eugene Attorneys
BLOEMFONTEIN
On behalf of 1st, 2nd, 3rd & 4th
respondents: Adv. Bhana
Instructed by: State Attorney
BLOEMFONTEIN