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[2007] ZASCA 136
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Thint (Pty) Ltd v National Director of Public Prosecutions and Others (671/06) [2007] ZASCA 136; 2007 JDR 1140 (SCA); [2007] JOL 21049 (SCA) (8 November 2007)
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REPUBLIC
OF SOUTH AFRICA
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case number: 671/06
Reportable
In
the matter between:
THINT
(PTY)
LTD
APPELLANT
and
NATIONAL
DIRECTOR OF
PUBLIC
PROSECUTIONS
FIRST RESPONDENT
THE
INVESTIGATING DIRECTOR:
DIRECTORATE
OF
SPECIAL
OPERATIONS
SECOND RESPONDENT
JOHAN
DU
PLOOY
THIRD RESPONDENT
CORAM
:
FARLAM, NUGENT, CLOETE, PONNAN et MLAMBO JJA
HEARD
:
29 AUGUST 2007
DELIVERED
:
8 NOVEMBER 2007
SUMMARY:
Search and seizure – search
warrant – validity of – warrants issued in terms of s 29
of National Prosecuting Authority
Act 32 of 1989 – whether
references to suspected offences inappropriately vague.
ORDER OF COURT SET OUT IN
PARA 14 IN JUDGMENT OF NUGENT JA.
Neutral
citation:
This judgment
may be referred to as
Thint
(Pty) Ltd v National Director of Public Prosecutions
[2007] SCA 136 (RSA).
JUDGMENT
FARLAM
JA
[1]
This is an appeal from a judgment of Du Plessis J, sitting in the
Pretoria High Court, in which he dismissed with costs the
appellant’s
application for orders (a) setting aside a search warrant issued by
Ngoepe JP in chambers in the Pretoria High
Court, in terms of s 29(4)
of the National Prosecuting Authority Act 32 of 1998; (b) declaring
the searches and the seizures conducted
pursuant to the warrant at
the appellant’s office in Pretoria to be unlawful; (c)
directing the respondents, the National
Director of Public
Prosecutions, the Investigating Director of the Directorate of
Special Operations and Mr Johan du Plooy, a senior
special
investigator in the Directorate of Special Operations, to return to
the appellant all items seized during the said searches
and to
deliver all minor images made of computer items seized; and (d)
ordering the respondents to pay costs on the attorney and
client
scale, including the cost of three counsel.
[2]
The warrant which forms the subject matter of this appeal was issued
by Ngoepe JP on 12 August 2005 together with a further
21 warrants
authorising searches and seizures at other premises in Pretoria and
elsewhere in the country. The operative part of
the warrant was in
identical terms to the corresponding parts of the other warrants.
Attached to it were two annexures. The first
annexure contained
twenty two paragraphs, the wording of which closely followed, with
the necessary adjustments, twenty two of
the paragraphs in the
corresponding annexure to twenty of the other warrants authorised on
the same day.
[3]
On the morning of 18 August 2005 the warrants issued by Ngoepe JP in
respect of the office of the appellant was executed by
members of the
Directorate of Special Operations of the National Prosecuting
Authority. At the same time most of the other warrants
authorised by
Ngoepe JP were also executed. They included a warrant in respect of
the Pretoria residence of Mr PJMR Moynot, who
is a director of the
appellant. The remaining warrants were issued in respect of homes and
offices or former offices of Mr Jacob
Zuma as well as the home and
office of his former attorney, Ms J Mahomed, and the office of his
present attorney, Mr M Hulley
[4]
Mr and Mrs Moynot were originally co-applicants in this application,
seeking orders in respect of the items seized at their
residence. The
respondents conceded that the warrant issued in respect of their home
was invalid, returned the items seized and
tendered to pay costs up
to the date of tender. In the circumstances, save for a preservation
order in respect of a plan of Mr
and Mrs Moynot’s home, which
was made by agreement, no order was made in respect of that part of
the application which related
to the items seized at the Moynots’
home and it does not figure in this appeal.
[5]
On 26 August 2005 Ms Mahomed brought an application in the
Johannesburg High Court for,
inter
alia,
relief
similar to that sought by the appellant in the present matter, which
relief was granted to her on 9 September 2005 by Hussain
J.
Subsequently Mr Zuma and Mr Hulley successfully brought a similar
application in the Durban High Court, where Hurt J granted
them the
relief they sought. The respondents in the applications heard by
Hussain J and Hurt J appealed to this court against the
orders given
against them and their appeals were argued on the two days preceding
the day on which the present appeal was argued.
The judgments in
those appeals are being handed down simultaneously with the judgment
in this matter.
[6]
In the
Mahomed
appeal the
appellants, who are the first two respondents in this appeal,
conceded that the warrant issued in respect of Ms Mahomed’s
home and offices and the resulting seizures effected pursuant thereto
were invalid with the result, so they stated, that
their appeal
had to be dismissed subject to a variation to the orders granted by
the court
a quo
providing for the
preservation of the original items seized under the warrants or
copies thereof. Ms Mahomed opposed the variation
sought and the
appeal was then argued solely on the issue as to whether the order
granted by Hussain J should be varied by the
insertion of a
preservation order.
[7]
In the appeal against the order granted by Hurt J in the application
brought by Mr Zuma and Mr Hulley the appellants did not
concede that
the warrants and the execution thereof were invalid but they argued
in the alternative that if they failed on the
validity issue a
preservation order should nevertheless be made.
[8]
For the reasons given in the judgment in the appeal relating to the
application brought by Mr Zuma and Mr Hulley, which in my
view, are
applicable here, I am satisfied that the appeal against the dismissal
of the appellant’s application should succeed.
I am also
satisfied for the reasons set out in that judgment that a
preservation order should be made.
[9]
By agreement between the parties certain documents which the
appellants’ representatives said were privileged were placed
in
bags which were sealed and subsequently handed over to the registrar
of the Pretoria High Court for safekeeping. The other items
which
were seized were taken away by the respondents’
representatives. During the execution of the warrant mirror images
were made of the hard drives from Mr Moynot’s laptop and the
computer of Ms N Govender, Mr Moynot’s personal assistant.
Apart from the documents in sealed bags in the custody of the
registrar, the other items seized under the warrant are in the
possession
of the respondents. If a preservation order is to be made
in this matter it will have to provide for the handing over to the
appellant’s
representatives of items presently in the
possession of the respondents and all copies made thereof and of the
documents presently
in the custody of the registrar and the
preservation by the registrar of copies of the items to be handed
over by the respondents
and by him.
[10]
As far as the costs order sought in the court
a
quo
is concerned I
do not think that a case was made out for costs on the attorney and
client scale or for the costs of three, as opposed
to two, counsel.
[11] In my opinion an
order in the following terms should be made:
1. The appeal is
dismissed with costs including those occasioned by the employment of
two counsel.
2. The order of the High
Court is set aside and replaced by an order in the following terms:
‘
1.
The search warrant attached to the Notice of Motion as Annexure “J”
is set aside and it is declared that the searches
and seizures
conducted on 18 August 2005 at or in the premises referred to in
Annexure “J” were unlawful.
2 (a)
The respondents are ordered to hand over to the registrar forthwith
all items seized and removed from the respective premises
in terms of
the aforesaid warrant (apart from items already in the custody of the
registrar), together with all copies of such
items which the
respondents or their agents may have made while the items have been
in their possession, irrespective of the means
by which such copies
have been made or taken.
(b)
The registrar is ordered to make copies (either in person or through
a delegate) in the presence of the attorneys for the first
applicant
and the respondents of all the documents seized pursuant to the
warrants referred to in paragraph 1 and to cause images
of all
computer materials seized pursuant to such warrants to be made by an
expert appointed by the registrar and must hand over
to the first
applicant’s attorneys the originals of the documents and the
computer materials seized and all copies of such
items which the
respondents or their agents may have made while the items have been
in the possession (irrespective of the means
by which such copies
have been made or taken) once the copying process is complete.
(c) The registrar is
directed to retain the copies and computer images made in terms of
subparagraph (b) and to keep them accessible,
safe and intact under
seal until:
(i) notified by the
respondents that the retained items or any of them may be returned to
the first applicant; or
(ii)
if proceedings are instituted pursuant to the investigation referred
to in the founding affidavit placed before Ngoepe JP when
the said
warrants were authorised, the conclusion of such proceedings; or
(iii)
the date upon which the first respondent decides not to institute or
to abandon such proceedings;
whereupon
the items so retained must be returned to the first applicant.
(d) The provisions of
subparagraphs (b) and (c) are subject to:
(i)
any order of any competent court (whether obtained at the instance of
the first applicant or the respondents);
(ii)
the lawful execution of any search warrant obtained in the future; or
(iii)
the duty of the registrar or representatives of the first applicant
to comply with any lawful subpoena issued in the future
(e) The respondents must
not take any step to obtain access to any of the retained or returned
items unless they give the first
applicant reasonable prior notice
before any such step is taken: in particular, but without derogating
from the generality of this
provision, the respondents may not take
any such step without giving the first applicant:
(i)
reasonable prior notice of any application for a search warrant or an
order directing the registrar or representatives of the
first
applicant to deliver or release any retained or returned item; and
(ii) a
reasonable opportunity to challenge in court any subpoena before the
registrar or a representative of the first applicant
is obliged to
comply with it.
(f)
The respondents must pay all costs of implementing the provisions of
this paragraph.
3. The respondents are
ordered to pay the first applicant’s costs in this application,
including those occasioned by the employment
of two counsel.’
_______________
IG FARLAM
JUDGE
OF APPEAL
CLOETE JA) CONCUR
NUGENT
JA
:
[12]
The material facts and issues in this case are fully set out in the
judgment of my colleague Farlam and need not be repeated.
I am unable
to agree with the order that he proposes.
[13]
As pointed out by my colleague the warrants that are now in issue are
not materially different to the warrants that were considered
in
National Director of
Public Prosecutions and Others v Zuma and Another
,
the judgment in which is to be delivered simultaneously with this
judgment. For the reasons given in my judgment in that matter
I am of
the view that the warrants in this case were similarly valid and that
the order made by Du Plessis J was correct. I agree
with my colleague
that costs on a punitive scale and the costs of three counsel are not
warranted.
[14] The appeal is
dismissed with costs that include the costs occasioned by the
employment of two counsel.
__________________
R.W. NUGENT
JUDGE OF APPEAL
PONNAN
JA) CONCUR
MLAMBO
JA)