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[2012] ZAFSHC 132
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Rossouw v Minister of Police and Others (141/2012) [2012] ZAFSHC 132 (5 July 2012)
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FREE STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
Application no. 141/2012
In the application between:
AC ROSSOUW
…..........................................................................
Applicant
and
THE MINISTER OF POLICE
…............................................
1
st
Respondent
THE MINISTER OF JUSTICE
….........................................
2
nd
Respondent
THE STATION COMMISSIONER, SAPS,
VIRGINIA
…..........................................................................
3
rd
Respondent
COMBINED PRIVATE INVESTIGATIONS
…......................
4
th
Respondent
HEARD ON
:
10 MAY 2012
CORAM:
MURRAY, AJ
JUDGEMENT BY:
MURRAY, AJ
DELIVERED ON:
5 JULY 2012
_______________________________________________________
[1] This is an application to have a search warrant and
the search and seizure pursuant to the warrant set aside and to have
the
seized items returned to the applicant.
[2] Adv P Zietsman S C appeared for Combined Private
Investigations (“CPI”), a private company contracted by
Transnet
and Eskom to recover their stolen property and
the fourth respondent herein, and Adv W Groenewald
appeared for the applicant.
[3] The relevant search warrant was issued by a Virginia
Magistrate on 28 November 2011. On 5 December 2011 the premises of
Vaalkrantz
Scrap Metal, a second-hand scrap metal dealer in Virginia,
was searched by members of the South African Police Services and
three
CPI members.
[4] Various items such as 658 kg copper, railway
components, corrugated iron sheets, and so forth, were seized during
the operation
and are presently being held in the SAPS13 store in
Virginia. The applicant, her partner, and one of the employees were
arrested
on suspicion of the possession of stolen goods.
[5] The applicant alleges that the search warrant was
invalid and that the search and seizure was unlawful and that she is
therefore
entitled to the return of all the seized items.
[6] She attacks the validity of the search warrant on
the following grounds:
6.1 The warrant was addressed to “
All police
officers”
;
6.2 The premises authorised to be searched was “
Gusmec
Scrap Metal”
;
6.3 The items authorised to be searched for and seized
was “
Copper”
;
6.4 The offence/s were not specified; and
6.5 The search and seizure operation was conducted under
the control of CPI’s Adv Wessels and not under the control of a
Police
Officer.
[7] The applicant alleges that she had lawfully obtained
most of the items listed in the Notice of Motion, either from the
SAPS
(the railroad rails) or from Harmony Mine. To substantiate her
claim, she, however, annexes two illegible General Waybills which
do
not mention any of the seized items and an SAPS 13 Form which merely
indicates that she had submitted a quote for seven railroad
rails,
but which mentions neither an amount nor a sale. No receipt is
annexed. Regarding the 758 kilogram of copper, she avers
in general
that they purchase copper on a daily basis and that they make proper
entries into the register.
[8] As further proof of her entitlement to the return of
the seized items, she annexes a certificate issued under Section 4(2)
of
the Second Hand Goods Act, 23 of 1955, as the license which
authorised her to ‘
carry on business in connection with
specified classes or kinds of second-hand goods’
from 3
February 2011 until 31 December 2011.
[9] That she had a valid license to deal in specified
second-hand goods at the time of the search and seizure is not in
dispute.
Neither is the fact that the said license expired on 31
December 2012 and that renewal thereof was refused in 2012.
[10] What is in dispute, however, is what exactly she
was authorised to deal in. According to the single page of her s 4(2)
certificate
annexed to her founding affidavit, she is authorised to
deal in “
all metals”.
Fourth respondent, however,
annexed to the opposing papers what they claimed to be the second
page of the applicant’s s 4(2)
certificate which stipulates
which metals are excluded from her license, such as copper.
[11] The applicant therefore no longer had a valid
licence to operate as a second-hand dealer when she brought this
application.
[12] Fourth respondent avers that several of the seized
items were suspected of being the stolen property of Harmony Mine,
Transnet
and Eskom. Officials from these entities were called to the
premises during the search to identify property belonging or
suspected
of belonging to these entities. The suspected stolen items
were then seized and placed in the SAPS 13 store.
[13] The applicant’s partner used to be the
license holder of Gusmec Scrap Metal which is situated on the same
premises as
Vaalkrantz. He is also the owner of the said plot.
[14] The fourth respondent opposes the application,
disputes the alleged unlawfulness of the search and seizure and
denies any obligation
to return the seized items to the applicant.
[15] Before the fourth respondent could file its
opposing papers, however, the first respondent (the SAPS), without
prior notice
to any of the other respondents or the Director of
Public Prosecutions, decided that the search and seizure had been
unlawful and
notified the applicant that it was returning all the
seized items to her.
[16] The fourth respondent then promptly launched an
urgent application (under case
no 448/2011
) to stay the return
of the seized items pending finalisation of this application. By
agreement between the parties the Director
of Public Prosecutions
(the “DPP”) was joined as the second applicant therein
and a rule
nisi
was granted. The present applicant and the
first respondent opposed only the costs order being asked against
them. The said rule
nisi
also serves before this Court to be
confirmed or discharged.
[17] The deponent on behalf of the fourth respondent
then asked the Court to read her founding affidavit in the said
urgent application
into her opposing affidavit in this application.
Her objection to the applicant’s right to the return of the
seized items
is backed by three supporting affidavits annexed to that
affidavit, namely:
17.1 That of the investigating officer in the DPP’s
office, Adv Claassens, who confirms that criminal proceedings had
already
been instituted against the applicant and her co-arrestees
and that the seized items are needed for evidence. She states that
there
is a strong
prima facie
case against the applicant and
her co-accused and that the criminal case and concomitant forfeiture
orders in terms of the
Criminal Procedure Act, 51 of 1977
could be
compromised if a premature order were to be made before the criminal
case had been concluded;
17.2 That of a Transnet investigator, Joubert, who was
called to the scene to identify Transnet property and who confirms
that a
docket, Virginia CAS 32/12/2011, has been opened for
investigation into the various suspected stolen Transnet railway
items; and
17.3 That of the Warrant Officer van den Bergh who made
the arrests and who confirms that some of the seized items had
already been
positively linked to other dockets opened regarding
Eskom and Harmony Mine property, namely Virginia CAS 81/11/2011 in
respect
of copper earthing stolen from the Transnet Merriespruit Vent
and Virginia CAS 189/11/2011 in respect of 698 sheets of corrugated
iron stolen from Harmony Mine.
[18] The fourth respondent denies that the search and
seizure was unlawful and avers:
18.1 that Lt Col Liebenberg of the SAPS was in charge of
the operation;
18.2 that the CPI members were invited by the SAPS to
assist them;
18.3 that the warrant on which the search and seizure
was based, and which is annexed to the opposing papers, contained
more information
than the one which the applicant attaches:
18.3.1 in that it was addressed to Lt. Col. GDM
Liebenberg as the designated officer to conduct the operation;
18.3.2 in that it listed, on the back, the 16 police
officials involved in the search;
18.3.3 in that it defined the assets to be searched for
as “
enige koper of enige onwettige skroot”;
18.3.4 in that it was one of 5 warrants obtained on 28
November 2011 by Lt. Col. Van der Merwe in preparation for a police
sting
against 5 different second-hand dealers in the Virginia
district planned for 5 December 2011;
18.3.5 in that the additional information was then added
by Col. Liebenberg on the morning before the Vaalkrantz operation.
[19] Mr Zietsman averred that the mere fact that
information was added later on, did not
per se
render the
warrant invalid. Be that as it may, however, there are still all the
grounds raised in the founding affidavit regarding
the alleged
invalidity of the warrant that need to be considered.
[20] The warrant was issued in terms of
s 20
,
s 21
and
s
23
of the
Criminal Procedure Act, Act
51 of 1977. It is not in
dispute that when the warrant was issued on 28 November 2012, it
contained only the information set out
in the applicant’s
founding affidavit. The fourth respondent’s version is that the
additional information was inserted
by Col. Liebenberg of the SAPS on
the warrant on 5 December 2011 during the SAPS parade preceding the
seizure.
[21] It is also common cause that on that day, besides
the 758kg copper, numerous non-copper items were seized,
inter
alia,
railway sleeper screws, corrugated iron sheets, railway leg
plates, a railhead, 6x6m railing, a steel chevron, and so forth.
[22] In
MINISTER OF SAFETY & SECURITY v VAN
DER MERWE
,
2011 (1) SACR 211
(SCA) at 216g –
217a [13] – [14] it was held that a challenge to the validity
of a warrant called for scrutiny of the
information that was before
the official who had issued it in order to determine whether such
information sufficiently disclosed
a reasonable suspicion that an
offence had been committed and whether it authorised no more than was
strictly permitted by the
statute in terms of which it was issued.
[24] In
THINT (PTY) LTD v NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS & OTHERS; ZUMA v NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS & OTHERS
,
2009 (1) SA 1
(CC
)
it was
stated that the Constitutional Court
“
had laid down unequivocally
that intelligibility required that the alleged offences had to be
specified in the warrant”.
[25]
In casu
the original warrant authorised by
the magistrate did not disclose either such a suspicion or the
offences committed.
[26] In
CLUR v KEIL
2012(3) SA 50 (ECG) at
53H - 54 A it was reiterated that the South African Constitution is
founded,
inter alia
, on the rule of law and that:
“
as far as those who exercise
public powers are concerned, the rule of law ‘requires that
they act within the powers that have
been conferred upon them’
and that all of their decisions and acts must be authorised by law.”
[27] It is vital, therefore, that a warrant be executed
within the boundaries set out in the warrant itself.
In casu
the original warrant only authorised the police to search for and
seize copper and authorised a search of Gusmec Scrap Metal, yet
the
search was conducted at Vaalkrantz and the items seized from
Vaalkrantz.
[28] In
MINISTER OF SAFETY & SECURITY v VAN
DER MERWE,
(SCA)
supra,
it was stated that the court
generally needs to ask two further questions, namely:
“
Firstly, whether the warrant
was sufficiently clear as to the acts it permitted, for if it were
vague, it would not be possible
to demonstrate that it went no
further than what the Statute permitted” and
Secondly, even if the warrant were clear in its terms,
whether the acts it permitted went beyond what the Statute
authorised, in
which case the warrant could be said to be overbroad
and thus invalid.”
[29] In
MINISTER
OF SAFETY & SECURITY v VAN DER MERWE
at
221i – 223a [30] – [33] it was held, furthermore, that
although the validity of a warrant must be tested against
the
particular Statute under which it was issued, there were nonetheless
other universal criteria to take into account, such as,
for instance,
that the warrant must be intelligible in the sense that the terms
must be neither vague nor overbroad.
[30] In
MINISTER
OF SAFETY & SECURITY v VAN DER MERWE
supra,
at 216c – f [12] the Court stated that the
authority conferred by a search warrant to search and seize what is
found, makes
material inroads upon rights that have always been
protected, amongst which are rights to privacy and property and
personal integrity.
They concluded that therefore the Courts in this
country
“
have always construed Statutes
that authorised the issue of warrants strictly in favour of the
minimum invasion of such rights.”
[31] In
POWELL NO
& OTHERS v VAN DER MERWE NO & OTHERS
,
2005 (5) SA 62
(SCA) at [50] it was stated
that such common law rights are now protected by being enshrined,
subject to reasonable limitation,
in Section 14 of our Constitution.
At 217b [15] Nugent, JA, said:
“
Needless to say, a warrant may
be executed only in its terms.”
[32] In
MINISTER OF SAFETY & SECURITY v VAN
DER MERWE & OTHERS
,
2011 (2) SACR 301
(CC) the
Constitutional Court confirmed that the
“
common law principle of
intelligibility requires search warrants issued under
Section 21
of
the
Criminal Procedure Act, 51 of 1977
to specify the offences in
respect of which they are issued”.
A valid search warrant must therefore, in a reasonably
intelligible manner:
“
(i) state the statutory
provision in terms of which it is issued;
identify the searcher ;
clearly mention the authority it confers upon the
searcher;
identify the person, container or premises to be
searched;
describe the article to be searched for and seized,
with sufficient particularity; and
specify the offence which triggered the criminal
investigation and name the suspected offender.”
[33] Further guidelines were specified at 316b –
317e [54] – [56], to be observed by Courts in considering the
validity
of warrants including the following:
“
(i) that the person issuing
the warrant must have authority and jurisdiction;
(ii) that the person authorising the warrant must
satisfy herself that the affidavit contains sufficient information on
the existence
of the jurisdictional facts;
(iii) that the terms of the warrant must be neither
vague nor overbroad;
(iv) that a warrant must be reasonably intelligible to
both the searcher and the searched person;
(v) that the Court must always consider the validity of
the warrant with a jealous regard for the searched person’s
constitutional
rights; and
(vi) that the terms of the warrant must be construed
with reasonable strictness.”
[34] From the preceding, it is clear that the warrant of
execution failed in at least three respects the requirements set out
by
the Constitutional Court namely:
34.1 by not identifying the correct premises to be
searched, although that may be open to debate in view of Col. Coobi’s
averment
that Vaalkrantz merely replaced Gusmec when its owner was
refused a new licence and his allegations that Mr Beukes was actually
de facto
in control of Vaalkrantz on all the occasions when he
visited Vaalkrantz, as well as the averment that in 2010 the
applicant was
investigated for suspected stolen goods found at Gusmec
under Virginia CAS 53/10/10;
34.2 by the item to be searched for and seized on the
original warrant being merely described as “copper”;
34.3 by failing to specify the applicable offences.
[35] In my view, then, there can be no doubt that the
warrant as originally issued was indeed invalid, more so if one takes
into
consideration that, as was found in
MINISTER OF SAFETY AND
SECURITY
(A),
supra,
one of the aspects one has
to consider to determine the validity of the warrant, is the
information before the issuing official,
which in the instant matter
is obviously insufficient to render the warrant valid.
[36] The next question to determine, then, is whether
the seizure itself could have been lawful in view of the invalid
warrant.
[37] Regarding the alleged unlawfulness of the
operation, the fourth respondent averred, without saying that they
indeed relied
on it, that section 10(e) of the Second-hand Goods Act,
23 of 1955, allows for a discretion to conduct a search and seizure
without
a warrant and that the corresponding provision in the new
Act, Act 6 of 2009, which does require a warrant, only became
effective
on 10 December 2011.
[38] Mr Zietsman averred that s10 of the Second-Hand
Goods Act, 23 of 1955, should be read with
s19
of the
Criminal
Procedure Act as
authorising a police officer to conduct a search and
seizure without a warrant. He maintained that on the facts, the SAPS
must
have exercised a discretion since they knew that the warrant was
issued for Gusmec Scrap Metal, yet they seized the items at
Vaalkrantz.
[39] He argued that since the Second Hand Goods Act, Act
23 of 1955, makes provision for a certificate which could authorise a
dealer
to possess and deal in copper or to prohibit her possession of
copper, and since 758 kg of copper was seized, Act 23 of 1955 is
applicable in the instant matter. On that basis, then, he submitted
that it could be argued that the SAPS indeed exercised their
discretion in terms of s 10 of that Act.
[40] Based on that, he submitted that it was clear that
Liebenberg did exercise his discretion and that the seizure was
indeed valid,
and if that were true, it was academic whether the
warrant was valid or not.
[41] As Mr Groenewald, in my view correctly, pointed
out, however, none of the necessary averments to that effect were
made in the
papers and on the facts there was no justification for a
search without a warrant. The view that a warrantless search must be
justified
in the papers, is confirmed in
SELLO v GROBLER
2011(1) SACR 310 (SCA) in which it was found that if the police had
indeed relied on a s 22 right to a warrantless search, averments
to
that effect should have been made. To my mind there is no reason to
accept that it should be otherwise if they relied on a s
10
discretion.
[42] Mr Zietsman averred, furthermore, that any
submission that the SAPS were not responsible for the seizure, was
untenable since
it was obvious that Lt. Col. Liebenberg was present
during the operation, that the items were seized, and that they were
removed
by the police officers at the scene and received in the SAPS
13 Store.
[43] On the facts before this Court, I can certainly not
find that the SAPS were not responsible for the seizure. The real
issue,
however, is whether that seizure was lawful.
[44] But, in the absence of any averments to that
effect, I cannot find that the SAPS indeed relied on either s 22 of
the Criminal
Procedure act, or on s10(e) of the Second Hand Goods Act
to conduct a warrantless search. From the facts it is clear that they
did use the invalid warrant to gain entry. I therefore agree with Mr
Groenwald’s submission that the seizure was therefore
also
invalid, based as it was on the invalid warrant.
[45] Regarding the question whether the applicant was
therefore entitled to the return of the seized goods, Mr Zietsman
pointed
out that the
Criminal Procedure Act has
its own procedure in
s 31
and
s 32
with which to handle evidence intended for a pending
criminal trial and that this Court should allow the Criminal Court to
decide
whether the assets should indeed be returned to the applicant,
especially in view of the fact that she no longer has a license to
deal in second hand goods.
[46] Mr Groenewald maintained, furthermore, that the
fourth respondent never averred that the copper was the property of
either
Transnet or Eskom and that, although the warrant authorised
the seizure of copper, items other than copper were also seized.
These,
he argued, should be returned to the applicant since she had
been in possession of the seized items and was now asking for her
possession to be restored. He also alleged that although
Section 3
of
Act 23 of 1955 prohibits a second-hand dealer from trading without a
license, such dealer’s right to possession of the
items is not
lost when the licence expires.
[47] He submitted, furthermore, that the DPP would be
unable to use unlawfully seized items for evidence in the criminal
trial and
could simply lawfully re-seize them if the Court orders
their return and that Transnet and Harmony could use the
res
vindicatio
to recover their alleged possessions.
[48] In
SELLO v GROBLER,
supra,
the
facts were very similar to the ones in the instant matter. There the
members of the Medicines Regulatory Affairs Inspectorate
(“MRAI”)
assisted the police in conducting a search of a pharmacy belonging to
the appellant, followed by a search
of his motorcar and his home.
Various items were seized, including allegedly stolen items and
expired medication, all without a
search warrant.
[49] In that case the appellant also applied for an
order declaring the searches unlawful and for the return forthwith of
all items
seized since the search and seizure operation was conducted
in violation of his “
right to privacy, his right to trade
freely and without a lawful basis.”
[50] Despite declaring the searches of the Applicant’s
pharmacy and home unlawful, the Court at 313e – f [11] directed
the Respondents forthwith to return to the Applicant only those items
seized pursuant to the unlawful search that the appellant
may
lawfully possess.
[51] To my mind such an order would not be practical or
feasible in the instant case, however, since it is not clear which of
the
seized items the applicant may indeed lawfully possess and such
an order would simply cause a further factual dispute. I wish to
make
it very clear, though, that an order to return the seized items is
not to be construed as a declaratory order that the applicant
is
indeed lawfully entitled to those items.
[52] Should the items be returned and the applicant not
be lawfully entitled thereto, the respondents will not be left
remediless
since the SAPS has statutory powers provided by the
Criminal Procedure Act and
by the Second-Hand Goods Act which they
can properly exercise and execute immediately upon their return of
the seized items.
[53] Such return would in my view comply
with the Constitutional principles of the rule of law, as set out in
CLUR v KEIL,
supra,
where it is stated on 55A-C that
“
any action taken by a public
body ‘must be justified by positive law’ ”
and as said in footnote 9, most fundamentally,
“
requires government officials
to exercise their authority according to the law, and not
arbitrarily.”
[54] As stated in
GROENGRAS EIENDOMME (PTY) LTD v
ELANDSFONTEIN UNLAWFUL OCCUPANTS,
2002(1) SA 125 (TPD) at
142D:
“
The rule of law means that
everyone must respect and adhere to the law. One cannot ride
roughshod over the law, not even when the
need is great.”
[55] In my view, then, there is no reason for the
respondents to be allowed to flout the law, while the SAPS can use
the ordinary
statutory powers conferred on them by the
Criminal
Procedure Act and
the Second Hand Goods Act to do a proper seizure,
following the correct procedures.
[56] I therefore consider it to be in the interests of
justice and in compliance with the spirit of the Constitution
regarding the
rule of law to order that the seized items be returned
to the applicant.
[57] In my view there is no reason to order costs not to
follow the outcome.
WHEREFORE
the
following order is made:
1. The warrant issued for Vaalkrantz Scrap Metal on 28
November 2011 by the Magistrate of Virginia is set aside.
2. The search and seizure pursuant to the abovementioned
warrant is declared unlawful.
3. The first respondents are directed forthwith to
return the items seized pursuant to the unlawful search.
4. The first and fourth respondents are ordered to pay
the costs of the application, jointly and severally, the one to pay,
the
other to be absolved, with the first respondent’s
obligation to pay stretching only up unto the date on which they
notified
the applicant of their decision to return the seized items.
________________
H. MURRAY, AJ
On behalf of applicant: Adv. W.J. Groenewald Instructed
by:
EG Cooper Majiedt Inc BLOEMFONTEIN
On behalf of fourth respondent: Adv. P. Zietsman SC
Instructed by:
Naudes
BLOEMFONTEIN