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[2007] ZASCA 173
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Le Roux and Others v Viana NO and Others (494/06) [2007] ZASCA 173; [2007] SCA 173 (RSA); [2008] 1 All SA 546 (SCA); 2008 (2) SA 173 (SCA) (30 November 2007)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No: 494/06
REPORTABLE
In
the matter between:
ALLAN
LE ROUX
................................
FIRST
APPELLANT
GERHARDUS
VERMAAK
................................
SECOND
APPELLANT
PIETER
JAN BENNETT VAN DER GRIJP
................................
THIRD APPELLANT
CASPIAN
FINANCIAL SERVICES (PTY) LTD
................................
FOURTH APPELLANT
and
THE
HONOURABLE MAGISTRATE MR VIANA
................................
FIRST RESPONDENT
JOHN
LOUIS CARTER FOURIE NO
................................
SECOND RESPONDENT
JOSHUA
MUTHANYI NO
................................
THIRD
RESPONDENT
MARIA
ELIZABETH APPEL NO
................................
FOURTH RESPONDENT
ELIZABETH
MARGARET EDWARDS NO
................................
FIFTH RESPONDENT
Coram:
Navsa, Nugent, Jafta, Mlambo JJA et Kgomo AJA
Heard:
22 November 2007
Delivered:
30 November 2007
Summary: Warrants –
whether s 69(3) excludes ‘books and documents’ in
electronic form in the possession of a third
party.
Neutral citation:
This judgment may be referred to as
Le
Roux v Hon Magistrate Mr Viana
[2007]
SCA 173 (RSA).
________________________________________________________________
JUDGMENT
_________________________________________________________________
MLAMBO JA
[1] This is an
appeal from a decision of Boruchowitz J in the Johannesburg High
Court dismissing a review application in which the
appellants sought
to set aside a warrant issued by the first respondent, a magistrate,
in terms of
s 69(3)
of the
Insolvency Act 24 of 1936
. The appeal is
with the leave of the high court.
[2] Condonation was
sought by the appellant for the late filing of their heads of
argument and practice note. Condonation is granted.
[3] The first
appellant is a director of the fourth appellant, Caspian Financial
Services (Pty) Ltd (Caspian), and is a former director
of Herlan
Edmunds Engineering (Pty) Limited and Herlan Investment Holdings
Limited (the companies in liquidation). The second and
third
appellants are also former directors of these companies. Caspian was
at least partly responsible for the administration of
the financial
affairs of amongst others the companies in liquidation.
[4] The other
respondents who are the joint liquidators of the companies in
liquidation applied in terms of
s 69(2)
for the warrant authorising
the sheriff to attach, remove and hand over to them all books,
documents and movables belonging to the
companies in liquidation
contained in a computer hard drive belonging to Caspian.
[5]
Section 69(3)
provides:
‘
(3)
If it appears to a magistrate to whom such application is made, from
a statement made upon oath, that there are reasonable grounds
for
suspecting that any property, book or document belonging to an
insolvent estate is concealed upon any person, or at any place
or
upon or in any vehicle or vessel or receptacle of whatever nature, or
is otherwise unlawfully withheld from the trustee concerned,
within
the area of the magistrate’s jurisdiction, he may issue a
warrant to search for and take possession of that property,
book or
document.’
[6] One of the
issues raised in the appeal is whether the books and documents
belonging to the companies in liquidation and recorded
on the hard
drive can be regarded as those contemplated in
s 69
and therefore
susceptible to seizure in terms of that section. The point made in
this regard is that if it is correct that the books
and documents
recorded on the hard drive, even though they belong to the companies
in liquidation, are not in the form contemplated
in the section, they
are therefore not susceptible to seizure in terms of that section and
the warrant is invalid on that basis.
[7] Counsel for the
appellants submitted that properly construed
s 69
does not
contemplate the seizure of property, the ownership of which rests in
a party other than the insolvent estate and that the
section cannot
be invoked for the purpose of seizing information relating to the
insolvent estate in circumstances in which that
information is not
recorded in paper or tangible form. Reduced to its essence this
submission is that the hard drive and the books
and documents of the
companies in liquidation recorded therein are beyond the ambit of
s
69.
Counsel submitted further that because the books and documents
were contained in the hard drive of Caspian an innocent third party,
they were not susceptible to seizure in terms of
s 69(3).
It was
submitted that
s 69(3)
should be restrictively interpreted.
[8] Clearly the
primary object of
s 69(3)
is ‘to enable a trustee to collect
and take control of assets reasonably believed to belong to an
insolvent estate which are
being concealed or withheld’. This
section is obviously intended to ‘strengthen the hand of a
trustee in carrying out
the obligation to take charge of all the
assets belonging to an insolvent estate’.
Cooper
NO v First National Bank of SA Ltd
2001
(3) SA 705
(SCA) at 713B-E.
[9] The objective of
s 69(3)
contemplates nothing less than the seizure of property, books
and documents relating to the insolvent estate wherever they may be.
In this case the target of the warrant was the books and documents of
the companies in liquidation contained on Caspian’s hard
drive.
A reading of the warrant lists all that was to be seized consisting
of financial, accounting and investment documents and
records
relating to the companies in liquidation. It is incorrect, as
submitted on behalf of the appellants, that the objective of
the
warrant was the seizure of the hard drive. The magistrate was clearly
alive to the fact that the hard drive did not belong to
the companies
in liquidation and that it also contained information relating to
innocent third parties. Hence the warrant is couched
in terms
respecting the confidentiality of the other information on the hard
drive and does not countenance the deputy sheriff having
access to
it.
[10] Furthermore,
properly construed the reference to books and documents in
s 69(3)
has nothing to do with the form in which those books and documents
are. The Concise Oxford English Dictionary (10
th
edition revised)
defines a book as ‘a set of records or accounts or the
embodiment of a record of commercial transactions’
and a
document as ‘a piece of written, printed or electronic matter
that provides information or evidence or that serves as
an official
record’. That these definitions accord with what the section
contemplates cannot be disputed. They also fit in
with the context
within which one must view the role and functions of a trustee in the
scheme of the
Insolvency Act. There
is no dispute in this case that
the books and documents stored on the hard drive and targeted by the
warrant relate to the financial
and business affairs of the companies
in liquidation. That being the case those books and documents,
irrespective of the form they
are in, are clearly within the
contemplation of
s 69
and are susceptible to seizure under a warrant
in terms of that section. It can hardly be suggested, as counsel for
the appellants
submitted, that we should not take judicial notice of
the technological advancements regarding electronic data creation,
recording
and storage because this was unheard of in 1936 when the
Insolvency Act was
passed.
1
For these reasons
the warrant is beyond reproach.
[11] This being the
view I take on this issue the appeal must fail. This renders it
unnecessary to consider the other issue raised
in the appeal save to
comment that judicial officers, judges in particular, have for a long
time been approached to authorise warrants.
It will be more
productive I suggest that, rather than seeking to determine in what
capacity the judge was acting when he issued
a warrant, the issue
must be to determine whether the warrant was lawfully authorised.
Courts have for many years set aside unlawfully
issued warrants and
it does not matter whether one brands the action of issuing such a
warrant as judicial or administrative. The
focal issue should always
be the lawfulness of the warrant. See
Pullen
NO v Waja
1929
TPD 838
at 846;
Ex
Parte Hull
(1891)
4 SAR 134;
Divisional
Commissioner of SA Police, Witwatersrand Area v SA Associated
Newspapers Ltd
1966
(2) SA (A);
Powell
NO v Van der Merwe NO
2005
(5) SA 62
(SCA) at 80F to 85F and many others.
[12] In the
circumstances the following order is granted:
The appeal is
dismissed with costs including the costs consequent upon the
employment of two counsel.
________________
D
MLAMBO
JUDGE
OF APPEAL
CONCUR:
NAVSA
JA
NUGENT
JA
JAFTA
JA
KGOMO
AJA
1
See
also
ss 12
and
17
of the
Electronic Communications and Transactions
Act 25 of 2002
which provide:
‘
12.
Writing
A requirement in law that a
document or information must be in writing is met if the document or
information is –
(a) in the form of a data
message; and
(b) accessible in a manner
usable for subsequent reference.
17. Production of document or
information
(1) Subject to
section 28
, where
a law requires a person to produce a document or information, that
requirement is met if the person produces, by means of
a data
message, an electronic form of that document or information, . . .’