Summary of Judgment

1. Introduction

The matter was decided in motion proceedings in the Free State High Court, Bloemfontein, before De Wet AJ. The applicants sought relief directing the South African Police Service (SAPS) and associated respondents to return goods seized during a police raid, together with ancillary directions relating to the identification and handover of the goods.

The applicants were Alberto Shadrech Rossi, Francis Albert Hawkins, Emile Rossi, Enrico Pentene, Besa Engineering (Pty) Ltd, and GEFCO (Pty) Ltd. The respondents were the Minister of Safety and Security, the Minister of Justice and Constitutional Development, the Director of Public Prosecutions (Free State), and K Herbert (the SAPS member in command of the operation).

In the procedural history reflected in the judgment, the seizure occurred on 6 June 2012 pursuant to a search warrant purportedly issued under section 20 of the Criminal Procedure Act 51 of 1977. Criminal charges against the applicants were withdrawn on 11 October 2012, and the Director of Public Prosecutions later confirmed a decision not to prosecute and indicated that lawfully possessed seized property should be handed over. Despite this, the relevant SAPS respondents continued to retain the seized items. On 22 May 2013, the second and third respondents filed a notice to abide the court’s decision, and the matter proceeded opposed primarily by the first and fourth respondents. The application was heard on 15 August 2013 and judgment was delivered on 29 August 2013.

The general subject-matter of the dispute concerned the lawfulness and continued justification for retaining articles seized under a search warrant, in circumstances where the prosecution had been withdrawn and the applicants sought restoration of possession.

2. Material Facts

It appeared from the papers that the premises in the industrial area (identified in the judgment as premises at 28th Street, Industrial, Welkom) were owned by the sixth applicant (GEFCO (Pty) Ltd), and that the first applicant was the sole director and shareholder of the sixth applicant. On the same premises, but in a different building, the fifth applicant (Besa Engineering (Pty) Ltd) manufactured electrical motors primarily for the mining industry.

The first applicant had engaged with Standard Bank and liquidators of an entity referred to as Kimberley eclipse regarding rehabilitation of a site referred to as the Half Street premises. During negotiations it emerged that the site contained unacceptably high levels of radioactivity, and part of the arrangement involved removal of radioactive elements. The applicants retained the services of the second applicant, described as highly qualified and an expert in site rehabilitation, and the sixth applicant’s laboratory facilities were made available to him for use in an environmental impact study.

The applicants’ version (as accepted for purposes of the determination) included that removing the topsoil from the Half Street premises was too costly and would merely relocate the problem. The first applicant designed and began erecting an elementary plant intended to scrub topsoil and separate scrap metal pieces from foundry sand, leaving sand for further processing. The plant was still being erected and had not been operational when SAPS took action.

On 6 June 2012, SAPS members and private security officials under the command of the fourth respondent raided premises in the industrial area (described in paragraph [4] as 8th Street, Industrial Area, Welkom) and also a property described as number 4 Half Street, Welkom, and seized goods which the applicants claimed in the application.

A search warrant, obtained ostensibly in terms of section 20 of the Criminal Procedure Act, authorised the fourth respondent to seize “gold bearing materials, gold processing implements and section 20 meant articles” on premises described as those of Besa Engineering and Kimberley Clips (sic), 8th Street, Industrial Area, Welkom. It was common cause that goods seized by SAPS under the fourth respondent’s command were in fact the property of the sixth applicant, which was not cited in the search warrant, and/or the property of the second applicant, who was also not cited in the search warrant. It further appeared that some goods were also seized at 4 Half Street, notwithstanding that the search warrant did not authorise seizure at that premises.

The judgment also recorded that during the raid, equipment (such as buckets, spades and mats) confiscated from illegal miners was left on the industrial premises, that such items did not belong to the applicants, and that they should have been removed by the police as part of the action against illegal miners.

The first and fourth respondents opposed the return of the items on the basis that the articles were seized under section 20, that the applicants had allegedly contravened section 4 of the Precious Metals Act 37 of 2005, that the equipment was allegedly used in the commission of an offence and could not lawfully be possessed, that investigations were ongoing despite withdrawal of charges, that SAPS wished to reinstate and add charges, and that the items would allegedly constitute evidence. The respondents further alleged that laboratory analysis confirmed that the applicants were processing gold and that exhibits contained traces of gold.

At the hearing, by consent, a letter dated 13 December 2012 from the Director of Public Prosecutions (Free State) to the applicants’ attorneys was handed up. The letter recorded that the Director of Public Prosecutions declined to prosecute and stated (in Afrikaans) that the investigating officer had been instructed to hand over seized property that the recipients could lawfully possess.

3. Legal Issues

The central legal question concerned whether the applicants were entitled to an order compelling the return of property seized under section 20 of the Criminal Procedure Act 51 of 1977, read with section 31, in circumstances where prosecution had been withdrawn and the respondents asserted an intention to reinstate or add charges.

The dispute required determination primarily of the application of law to largely common-cause facts, including the existence and scope of the search warrant, the fact of seizure, the subsequent withdrawal of charges, the lapse of time, and the absence (or presence) of a reasonable likelihood of criminal proceedings being instituted in the foreseeable future. The court also had to make an evaluative judgment about whether the respondents had provided a sufficient basis to justify continued retention of the seized items, and whether alleged traces of gold (even if present) could lawfully justify refusing restoration.

4. Court’s Reasoning

The court approached the matter on the footing that section 31 of the Criminal Procedure Act had to be read with section 20, and that these provisions were aimed at facilitating the investigation and proof of offences to which seized articles were allegedly connected. The continued retention of seized items was assessed against this statutory purpose.

The court emphasised that the respondents were required to act with reasonable expedition in instituting criminal proceedings. It accepted, with reference to authority, that investigative and charging delays should not become so extended as to become oppressive of the applicants’ rights without a real prospect of further investigative advance.

In applying these principles, the court noted that withdrawal of prosecution was not, on its own, sufficient to trigger return under section 31(1)(a). The applicants still had to establish that there was no reasonable likelihood of criminal proceedings being instituted in connection with the seized articles in the foreseeable future. The court treated this as the correct standard and evaluated the evidence accordingly.

On the facts, the court found the respondents’ opposing material deficient in key respects. No information was provided about the investigation allegedly being conducted against any applicant, how much time would be needed to complete it, what further charges were contemplated, or why continued retention was necessary given that analysis had already been performed. The court regarded these omissions as materially undermining the respondents’ attempt to justify ongoing retention of the property.

The court was satisfied, on the papers, that no criminal proceedings were pending for the relevant statutory purpose because there was no reasonable likelihood of such proceedings being instituted. It relied on the fact that prosecution had been withdrawn on 11 October 2012, that by the time of the application approximately 10 months had passed without further steps, and that the Director of Public Prosecutions (Free State) had indicated on 13 December 2012 that the matter had been carefully considered and that prosecution was declined “at this stage”, together with an instruction that property lawfully capable of possession be handed over.

As to the respondents’ contention that the applicants were not entitled to possession because traces of gold were found on the seized items, the court recorded the applicants’ submission that the analyses attached to the founding papers showed gold dust on the seized property of illegal miners rather than on the applicants’ property, and accepted that this appeared to be the correct position. The court further reasoned that, even if traces of gold dust had been found on the seized articles, this did not explain why the respondents could not return the articles to the applicants. The court distinguished examples invoked by the respondents (such as stolen vehicles and prohibited gambling equipment) on the basis that those contexts involve either a continuing offence or a clear statutory prohibition on possession. By contrast, the court found there was no prohibition against the possession of the laboratory equipment and other items seized from the applicants. It added that if the respondents were concerned about traces of gold dust, the items could be washed down before being returned.

5. Outcome and Relief

The court granted prayer 1 of the notice of motion. In terms reflected earlier in the judgment, this entailed an order directing the respondents to return within five days all goods removed from the relevant premises on 6 June 2012, including items listed in annexures to the founding affidavit, excluding goods confiscated from illegal miners, and directing the first and second applicants to identify the relevant goods within 48 hours, with the fourth respondent required to facilitate this process.

The court ordered the first respondent to pay the applicants’ costs on a party-and-party scale. No substantive order was sought against the second and third respondents due to their notice to abide.

Cases Cited

Choonara v Minister of Law and Order 1992 (1) SACR 239 (W).

Booi v Minister of Safety and Security 2005 (2) SASW 465 (O).

Dookie v Minister of Law and Order and Others 1991 (2) SACR 153 (D).

Booi v Minister of Safety and Security and Others 2005 (2) SASW 465 (O).

Legislation Cited

Criminal Procedure Act 51 of 1977, section 20.

Criminal Procedure Act 51 of 1977, section 31.

Criminal Procedure Act 51 of 1977, section 31(1)(a).

Precious Metals Act 37 of 2005, section 4.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the applicants established, on the papers, that there was no reasonable likelihood of criminal proceedings being instituted in connection with the seized articles in the foreseeable future, notwithstanding the respondents’ assertions of ongoing investigation and a wish to reinstate or add charges. In the absence of a demonstrated prosecutorial or investigative necessity, and given the lapse of time and the Director of Public Prosecutions’ decision not to prosecute coupled with an instruction to hand over lawfully possessable property, the continued retention of the items was not justified.

The court further held that allegations of traces of gold (even if assumed) did not render the items incapable of return, distinguishing situations involving continuing offences or items whose possession is statutorily prohibited.

LEGAL PRINCIPLES

The judgment applied the principle that sections 20 and 31 of the Criminal Procedure Act 51 of 1977 operate together to permit seizure and retention of articles for the purpose of investigating and proving offences, but that such retention is not indefinite and must be connected to legitimate investigative or prosecutorial aims.

The judgment applied the requirement that an applicant seeking return of seized articles under section 31(1)(a) must do more than show that no criminal proceedings are pending at the time of the application; the applicant must establish that there is no reasonable likelihood that criminal proceedings will be instituted in relation to the articles in the foreseeable future.

The judgment applied the principle that the state must act with reasonable expedition in investigating and instituting criminal proceedings, and that undue delay, unsupported by meaningful information about investigative progress or prosecutorial intentions, may be treated as oppressive and inconsistent with continued retention of seized property.

The judgment further applied a distinction between articles that cannot be returned due to a continuing offence (such as stolen property remaining stolen) or a clear prohibition on possession (such as prohibited gambling equipment), and articles such as laboratory equipment for which there is no general prohibition on possession, with the result that alleged contamination (such as traces of gold dust) does not, without more, justify refusal to return.