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[2013] ZAKZPHC 55
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Elias Dunias t/a Colosseum Internet Lounge v Minister of Safety and Security and Others (5682/2013) [2013] ZAKZPHC 55 (17 October 2013)
IN THE KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
Case No: 5682/2013
In the matter between:
ELIAS DUNIAS trading as
COLOSSEUM INTERNET LOUNGE
.................................................................
Applicant
and
THE MINISTER OF SAFETY & SECURITY
.
.........................................
First
Respondent
THE PROVINCIAL COMMISSIONER OF THE
SOUTH AFRICAN POLICE SERVICE,
KWAZULU-NATAL
..........................................................................
Second
Respondent
CAPTAIN COLETTE BRUWER
...........................................................
Third
Respondent
THE MAGISTRATE, EMPANGENI
....................................................
Fourth
Respondent
JUDGMENT
Delivered on 17 October 2013
Vahed J:
Employing the
mandament van spolie
the applicant seeks an
Order that he be restored with possession of certain cash, equipment
and documents seized by the third
respondent, on 16 May 2013, from
certain business premises situated at the LAC Centre in Meerensee,
Richards Bay (“the
premises”), and from where he traded
as the Colosseum Internet Lounge.
The seizure, and the search which preceded it, was effected and
conducted by the third respondent together with other members
of the
South African Police Service. The search and seizure took place in
terms of a search warrant (“the warrant”)
issued by the
fourth respondent on 16 May 2013 in terms of
sections 20
,
21
and
25
of the
Criminal Procedure Act, 51 of 1977
. The application for the
warrant which served before the fourth respondent was supported by
an affidavit, deposed to by one Havenga
who was a senior inspector
employed by the KwaZulu-Natal Gaming and Betting Board, which
suggested that certain offences specified
in the
National Gambling
Act, 7 of 2004
and/or The KwaZulu-Natal Gaming and Betting Act, 8 of
2010 were suspected of being committed at the premises.
As indicated in the introduction to this judgment, the applicant has
employed the
mandament van spolie
to secure the return of that
which was seized. Indeed, he describes this case in his founding
affidavit thus:
‘
I have
been advised that the purpose of this application is to seek a
mandament van spolie order, the only issue is whether I have
been
unlawfully dispossessed of the goods listed hereunder, which goods
were in my peaceful and undisturbed possession prior to
the search
and seizure.’
In
Ivanov v North West Gambling Board and Others
2012 (6) SA
67
(SCA) 67at para 19 the requirements for a
mandament van spolie
were described as follows:
“
The
historical background and the general principles underlying the
mandament van spolie are well established. Spoliation is the
wrongful
deprivation of another’s right of possession. The aim of
spoliation is to prevent self-help. It seeks to prevent
people from
taking the law into their own hands. An applicant upon proof of two
requirements is entitled to amandamentvanspolierestoring
the status
quo ante. The first is proof that the applicant was in possession of
the spoliated thing. The cause for possession is
irrelevant –
that is why possession by a thief is protected. The second is the
wrongful deprivation of possession. The fact
that possession is
wrongful or illegal is irrelevant, as that would go to the merits of
the dispute.”
It is common cause in this case that the applicant was in possession
of that which was seized by the third respondent.
In seeking to address the second requirement, Mr
Jagga
, who
appeared for the applicant, submitted in his heads of argument that
“[i]t is the case for the applicant that he was
unlawfully
dispossessed of certain items on 16 May 2013, under the authority of
an invalid search and seizure warrant”.
That theme was
developed fully in his heads of argument and in oral argument before
me.
However, it seems to me that what needs to be addressed first is
whether, without further ado, the
mandament van spolie
is an
appropriate remedy in the circumstances of this case.
The court
a quo
in
Ivanov’s
was also dealing with
the
mandament van spolie
against the background of a search
and seizure warrant. In that case however an Order was specifically
sought declaring the warrant
to be null and void, which was granted.
On appeal the Supreme Court of Appeal had the following to say:
‘
[14]
Counsel for the respondents submitted that the search and seizure
were lawful, as the warrant had not been declared invalid
when the
police executed it, and that it remained valid until set aside on
review. In my view this submission cannot prevail. 'A
warrant is no
more than a written authority to perform an act that would otherwise
be unlawful.'It must comply with the statutory
provisions. If it is
subsequently declared invalid, the invasion of privacy and the search
and seizure cannot retain the lawfulness
thereof, as the essence of
what made the dispossession lawful, falls away. As Harms DP stated in
Cadac
(Pty) Ltd v Weber
-
Stephen
Products Co and Others
[2011
(3) SA 570
(SCA) papa 18]: 'The declaration of invalidity
operates retrospectively and not prospectively. This means that once
a warrant
is set aside it is assumed that it never existed, and
everything done pursuant thereto was consequently unlawful.'
[15] Put differently, the
lawfulness of the search and seizure is dependent on the
legality of the search warrant. This must
necessarily be so, as the
warrant provides the justification for the search and seizure. If the
warrant is declared null and void,
it means that there was no basis
in law for the search and seizure, which were therefore invalid ex
tunc. In this case the police
had no authority to seize the
appellant's goods, albeit that they acted in good faith and believed
that they had the power to searchin
terms of the warrant. Once the
order of invalidity was issued, the necessary consequence was that
the police acted unlawfully.
[16] The matter was put beyond
doubt by the decision of the Constitutional Court in
Betlane v
Shelly Court CC
[2011 (1) SA 388
(CC)]
.
In that case the
registrar had issued a writ of execution in favour of the
respondent, contrary to rule 49(11) of the Uniform
Rules of Court,
which requires it to be issued by the court which granted the order.
The applicant was evicted on the strength
of the writ of execution
which was later declared unlawful and set aside. The applicant
applied for a spoliation order. Mogoeng
J held in para 36:
'Ordinarily, an eviction that is carried out pursuant to an invalid
writ of execution amounts to spoliation.
The evictee would therefore
be entitled to restitution.' However, a restoration order was not
granted, as the premises were already
occupied by a bona fide third
party.
[17] It follows that it was
competent for the appellant in this case to apply for a spoliation
order. The court below accordingly
erred when it concluded that
the appellant had used a wrong procedure and relied on a wrong cause
of action. I now turn to
the issue of spoliation.’
Both Mr
Jagga
, and Mr
Mthembu
, who appeared for the
respondents, sought to rely upon
Ivanov
as authority for
their respective contentions concerning the applicability of the
mandament van spolie
in the present matter.
Mr
Jagga’s
reliance upon
Ivanov
, and more
particularly paragraph 17 thereof, is, in my view, misplaced. It
loses sight of the fact that a specific Order was
sought and granted
declaring the warrant to have been invalid. Once that declaration
had been made, as the court was at pains
to point out, the
invalidity operated retrospectively. That is something far different
from what is sought in this case. Here
reliance is placed on the
mandament van spolie
as a distinct and stand-alone remedy.
Mr
Jagga
referred me to a number of cases where he contended
that the
mandament van spolie
was employed in similar or
almost identical circumstances as obtain here.
In
Zoeco System Managers CC v Minister of Safety and Security NO
and Others
(54447/12) [2012] ZAGPPHC 353 (6 December 2012) (also
at 2012 JDR 2500) the Court was also dealing with a claim under the
mandament van spolie
for the return of goods seized in terms
of a search warrant. Although it is not clear from the body of the
judgment whether an
Order was specifically sought declaring the
warrant to be invalid and null and void,
Teffo
J concluded
the judgment with a specific Order declaring the warrant invalid and
setting it aside, before proceeding to issue
an Order for
restoration of the goods seized. It is clear also from the judgment
that the applicability of the
mandament van spolie
, in the
absence of an Order setting aside the warrant, was not in issue, or
dealt with, in that matter.
P J Goqwana v Minister of Safety & Security &Ors
,
North Gauteng High Court Case No. 26432/2012, unreported, 07 June
2012, concerned identical facts. From a reading of the judgment
it
is not clear whether an Order as to the invalidity of the warrant
was sought, but no Order in that regard was made. The Court
simply
directed that possession be restored. However, in that case too, it
is clear from the judgment that the applicability
of the
mandament
van spolie
, in the absence of an Order setting aside the
warrant, was not in issue or dealt with.
BelaBela Lounge (Pty) Ltd v Minister of Safety & Security
&Ors
, North Gauteng High Court Case No. 37440/2013,
unreported, 13August 2013,also concerned identical facts. There
however an Order
was specifically sought setting aside the warrant
in that case and in the course of the judgment it was found to be
invalid although
no specific Order was made in that regard. Again,
however, it is clear from the judgment that the applicability of the
mandament van spolie
, in the absence of an Order setting
aside the warrant, was not in issue or dealt with.
None of those decisions are authority for the view that where a
possessor is dispossessed of goods under the authority of a warrant
the
mandament van spolie
is available as a remedy for the
restoration of possession in the absence of an Order setting aside
the warrant.
In my view, unless and until an Order is sought and obtained
declaring the warrant in the present case to be invalid and null
and
void, it (i.e. the warrant) remains effective clothing the search
and seizure with judicial legality. No such Order is sought
in the
present case.
For so long as the warrant remains extant everything and anything
done pursuant thereto remains lawful. It follows therefore
that the
second leg in the test for spoliation has not been satisfied by the
applicant. I am fortified in that view by what was
said at paragraph
20 in
Jacobs and Others v Baumann NO and Others
2009 (5) SA
432
(SCA). There the court relied on
Smith v East Elloe Rural
District Council and Others
[1956] UKHL 2
;
[1956] 1 All ER 855
(HL) at 871G –
H where Lord Radcliffe said:
‘
An
order, even if not made in good faith, is still an act capable of
legal consequences. It bears no brand of invalidity on its
forehead.
Unless the necessary proceedings are taken at law to establish the
cause of invalidity and to get it quashed or otherwise
upset, it
would remain as effective for its ostensible purpose as the most
impeccable of orders.’
The Court below in
Ivanov
relied upon
Oudekraal Estates
(Pty) Ltd v City of Cape Town &Ors
2004 (6) SA 222
(SCA)
para 26 to hold, notwithstanding its declaration that the warrant
was invalid, “...that the search and seizure were
not unlawful
as the search warrant ... had not yet been set aside when the police
executed it, and that it had empowered them
to conduct the search
and seizure”. (atpara 9 of
Ivanov
). In para 13 in
Ivanov
the Supreme Court of Appeal dealt with this aspect
thus:
‘
[13]
As indicated earlier in my judgment, the Judge President found
support in
Oudekraal
when she held that an unlawful act was capable of producing
legally valid consequences for as long as the unlawful act was
not
set aside. Counsel for the respondents correctly conceded that the
court below's reliance on
Oudekraal
was misplaced, as that case dealt with the validity of administrative
acts. The issue of a warrant is not an administrative act.
It was so
held by Langa CJ in
Thint
(Pty) Ltd v National Director of Public Prosecutions; Zuma v National
Director of Public Prosecutions
, where
he stated:
“
In supplementary written
submissions filed after the close of the hearing, the State submitted
that the decision to issue a search
warrant is an administrative one
which falls within the terms of the Promotion of Administrative
Justice Act. The applicants,
on the other hand, submitted that it is
a judicial discretion and does not fall within the scope of
administrative action. This
latter approach accords more with the
jurisprudence of this court.” ‘
One of the principal issues in the appeal in
Ivanov
was
“...whether the declaration of invalidity of the search
warrant could transform a bona fide search that was executed
under a
warrant into a spoliation...”. (at para 11) That question was
answered by the Court in the affirmative.
In my view, until set aside, the warrant in the present matter
remains a valid exercise of a judicial discretion by the fourth
respondent. As I have said, the applicant did not seek that relief
and consequently he is non-suited.
The application is dismissed with costs.
_______________
Vahed J
CASE
INFORMATION
Date
of Hearing: 19 September 2013
Date
of Judgment: 17 October 2013
Applicant’s
Counsel: N Jagga
Applicant’s
Attorneys: Vardakos Attorneys
Vereeniging
Locally
represented by:
Tomlinson
Mnguni James Inc
165
Pietermaritz Street
Pietermaritzburg
Tel:
033 341 9100
Ref:
R Wills/am/64V2328/13
Respondent’s
Counsel: T S I Mthembu
Respondent’s
Attorneys: State Attorney, KwaZulu-Natal
Durban
Tel:
031 365 2544
Ref:
M T Hlope 32/02210/10/D/P26
Locally
represented by:
CajeeSetsubiChettyInc
195
Boshoff Street
Pietermaritzburg
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