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[2012] ZANCHC 12
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Imperial Crown Trading 289 (Pty) Ltd v Birch NO and Others (1338/2011) [2012] ZANCHC 12 (11 May 2012)
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Saakno: / Case number:
1338 / 2011
Datum verhoor: / Date
heard:
15 & 16/03/2012
Datum gelewer: / Date
delivered:
11/05/2012
In
the matter between:
IMPERIAL
CROWN TRADING 289 (PTY) LTD
..............
Applicant
and
THE
ACTING SENIOR MAGISTRATE RICHARD
EDWARD
BIRCH, KIMBERLEY, N.O.
.................
First
Respondent
THE
MINISTER OF POLICE, N.O.
.................
Second
Respondent
THE
DIVISIONAL COMMISSIONER, DIREC-
TORATE
FOR PRIORITY CRIME INVESTIGA-
TION
OF THE SOUTH AFRICAN POLICE
SERVICE,
N.O.
...............................................
Third
Respondent
LIEUTENANT
COLONEL SANDRA
VAN
WYK N.O.
.............................................
Fourth
Respondent
SISHEN
IRON ORE COMPANY (PTY) LTD
.........
Fifth
Respondent
KUMBA
IRON ORE LIMITED
...........................
Sixth
Respondent
Coram:
Lacock,
J
JUDGMENT
LACOCK, J
[1] This application
concerns the setting aside of a search warrant authorized by the
first respondent in favour of the SA Police
Service, herein
represented by the second, third and fourth respondents.
For purposes of
appreciating the intricacies of this matter, it is necessary to
briefly deal with the historical background that
brought about the
application. These factual circumstances are not in dispute.
Prior to the
commencement of the Mineral and Petroleum Resources Development
Act, No. 28 of 2002 (the MPRDA) on 1 May 2004,
the fifth respondent
(Sishen), a subsidiary of the sixth respondent, owned a 78.6 %
undivided share in iron ore mined on what
is generally known as the
Sishen Properties situate in the district of Kuruman, Northern Cape
Province. The remaining portion
of 21.4 % undivided share in the
ore was held by ArcelorMittal (Pty) Ltd (AMSA).
At the commencement
of the MPRDA Sishen and AMSA continued their mining activities on
the Sishen properties. In terms of the
MPRDA the mining
authorization in terms whereof these entities mined on the said
properties were referred to as “old
order mining rights”.
These old order mining rights had, in terms of item 7(1) of
Schedule II of the MPRDA, to be converted
into mining rights under
the MPRDA on or before 30 April 2009, failing which the right would
lapse.
Sishen duly and
timeously applied for and had its old order mining right converted to
a mining right under the MPRDA. AMSA however
failed to apply for the
conversion of its old order mining right.
I pause here to note
that at this juncture all parties laboured under the impression
that Sishen and AMSA held two separate
mining permits; one to mine
78.6 % of the Sishen properties, and the other for the mining of
21.4 % of the properties. Subsequently
Zondo J found in Sishen Iron
Ore Company (Pty) Ltd and Others v The Minister of Mineral
Resources and Others, Case no. 28980,
North Gauteng Division, that
only one old order mining right existed and that, upon the
conversion thereof, Sishen became the
exclusive holder of the
converted mining right. This judgment was delivered in December
2011.
When it became
apparent on 30 April 2009 that AMSA had failed to convert its “old
order mining right” both Sishen
and the applicant (ICT) filed
applications at the offices of the Department of Mineral Resources
(DMR) for the granting of
a mining right and a prospecting right
respectively in respect of AMSA’s 21.4 % mining right.
The DMR refused
Sishen’s application, and granted ICT’s application for
a prospecting right. Sishen consequently
applied in the North
Gauteng High Court under the aforesaid case number 28980/10 for the
review and setting aside of the aforesaid
decisions of the DMR and
the officials concerned. The judgment of Zondo J referred to above
was the one delivered in this matter.
[2] Whilst the
aforesaid matter was still pending in the North Gauteng High Court,
Sishen filed a complaint in terms of section
34 of the Prevention and
Combatting of Corrupt Activities Act of 2004 with the Serious
Economic Offences Unit of the Directorate
for Priority Crime
Investigation against ICT for the alleged committal of the crimes of
fraud, forgery and the uttering of a forged
document. The factual
supporting averments on which these complaints were founded are
contained in a written report dated 2 September
2010. The relevant
portions of this report read as follows:-
“
5.6 AMSA failed to lodge
its old order mining right in respect of the 21.4 % undivided share
for conversion in terms of item 7 of
schedule II before the expiry of
the five year period. Consequently, in terms of item 7(8) of Schedule
II, AMSA’s old order
mining right as to a 21.4 % undivided
share ceased to exist as at the end of 30 April 2009.
5.7 Since AMSA failed to convert
its old order mining right as to a 21.4 % undivided share, SIOC
applied for a mining right for
iron ore and aggregate in respect of
the 21.4 % undivided share in respect of the Sishen Mine.
5.9 On 15 May 2009, the Regional
Manager of the Department of Mineral Resources in Kimberley wrote a
letter to SIOC informing it
that its application for a mining right
had been accepted, but that its application ‘was competing with
another application
which was lodged on the same day for the same
minerals’.
5.10 It later transpired that the
so-called competing application was an application which had been
submitted by Imperial Crown
Trading 289 (Pty) Ltd (“ICT”)
for a prospecting right in respect of certain of the farms on which
the Sishen Mine is
situated as well as certain other farms (“the
ICT application”).
5.12 The timing of the submission
of certain applications in terms of the MPRDA is, therefore, of
considerable importance as competing
applications are, in terms of
the MPRDA, to be dealt with in date order.
6.
Fraud
6.3 Insofar as the purported
signing of the check list is a representation that a full and
complete application was submitted by
ICT on 4 May 2009 in respect of
the other documents itemized and “ticked” as having been
submitted on 4 May 2009, this
is patently false as the ICT
application provided by the State Attorney as part of the record
contains no less than six documents
which bear signatures which are
dated after 4 May 2009 and which accordingly could not have been
included in the ICT application
on 4 May 2009, which is the date on
which the checklist indicates that they were received.
6.4 As appears from the attached
documents, the ICT application itself was signed 5 May 2009 (page 6
of the record). The prospecting
works programme was signed 5 May 2009
(page 45 of the record). A resolution relating to funding (by Adistra
11 CC) is also dated
5 May 2009 (page 58 of the record) and an
acknowledgement signed by Mr Luhlabo that the minister may require
additional information
is also dated 5 May 2009 (page 77 of the
record).
6.5 Furthermore, certain plans
that were included in ICT’s application only appear to have
been signed on 8 May 2009 and 9
May 2009 (pages 9, 10, 11, 12, 13,
14, 15, 16, 17 and 18 of the record) judging by the date which
appears on the maps themselves.
These plans are also prescribed
requirements for application for prospecting rights in terms of the
MPRDA and its regulations.
I have also been informed that the land
surveyor who completed the requisite plans for submission as part of
the ICT application,
has indicated that he was provided with a copy
of the title deeds, which had been certified by the Registrar of the
High Court
as a copy only on 4 May 2009, and that he used these for
the purpose of commencing the work which he subsequently performed in
relation to preparing the requisite plans. He confirmed that the date
on which he signed the plans was the date on which he actually
prepared the plans, being 8 May 2009 and 9 May 2009.
6.7 It would appear that ICT has
potentially committed a fraud either through representing that a
complete application was submitted
on 4 May 2009 or alternatively by
ensuring that the application was “back dated” to 4 May
2009.
7.
Forgery
7.1 I am advised that in terms of
the relevant prescribed requirements, an application for a
prospecting or mining right must contain
a certified copy of the
title deeds to which the land relates.
7.2 As such, SIOC’s
application which was delivered to the DMR included a certified copy
of the original relevant title deed
T3280/2001 relating to the
relevant farms on which the Sishen Mine is situated. These were
certified by Bridget Engela (now van
der Bijl) on 28 April 2010.
7.5 It is clear that the copies
of the extracts of the title deed in the ICT application are
photocopied manipulated copies of the
certified copy of that deed
which was in the SIOC application lodged in Kimberley (a copy of the
partial copy of the title deeds
in the ICT application is to be found
in the ICT application). This is so by virtue of the following.
7.5.1 Title deed T3280/2001 is a
title deed to land and as such is a document available to the public
at the office of the Registrar
of Deeds. ICT could therefore readily
have obtained a certified copy of the deed from the Registrar. ICT
would however have not
been able to obtain a copy of the deed from
the Registrar over the long weekend of 1 – 3 May 2009.
7.5.2 The copy of the title deed
in SIOC’s application was certified by Commissioner of Oaths,
Bridget Engela, to be a true
copy of the original.
7.5.3 A comparison of the title
deeds lodged by SIOC on the one hand and ‘lodged’ by ICT
on the other hand, simply upon
the observation by an ordinary layman,
reflect that the title deeds submitted by ICT are forgeries. This is
so because it appears
that:
7.5.4 ICT apparently obtained
access to documents which form part of SIOC’s application. This
is evident from the fact that
the copies of the title deeds submitted
as part of the ICT application were obtained from SIOC’s
application.
7.5.5 ICT has manipulated the
copies of the title deeds obtained from SIOC’s application in
an attempt to disguise the origin
of the title deeds attached to
SIOC’s application and to give the false impression that the
ICT application had been made
in the prescribed manner and complied
with the regulations as regards the requirement to submit certified
copies of the original
title deeds. ICT’s application
consequently involved the process of fraudulently manipulating the
documents already filed
by SIOC and representing that those
documents, (the title deed documents), were obtained in the normal
way by ICT and that a Commissioner
of Oaths had in the normal way
certified them as copies. In fact it was achieved by gaining unlawful
access to SIOC’s application
and manipulating copies of the
title deeds attached to SIOC’s application in order to obtain
title deeds which could be used
as annexures by ICT.
7.5.6 It is quite apparent from
an examination of record that the extracts of the title deed
contained in the ICT application have
been manipulated to obscure
Engela’s certification stamps by blanking them over with a
piece of paper or card and then photocopying
the pages. This appears
from a comparison of the copy of the extracts from title deeds
contained in the ICT application compared
with the full copy of the
title deeds contained in the SIOC mining right application. On each
of pages of the copy of the title
deed contained in the ICT
application, it is apparent that Engela’s certification stamp
and manuscript certification on 28
April 2009 and signature have been
obscured by placing a blank card over these portions of the document
before the relevant pages
were copied.
8.
Uttering a forged document
8.1 The apparent use of the
forged certified copies of SIOC’s original title deeds in ICT’s
application for the purpose
of obtaining a mineral rights grant from
the DMR, would appear to meet the requirements of uttering a forged
document.
”
(Sishen is referred to
as “SIOC’ in this report).
[3] The fourth
respondent (Van Wyk) is the investigating officer appointed as such
to investigate the said complaints.
[4] On 26 July 2011
(that is 20 days prior to the hearing of the aforesaid application
before Zondo, J), Van Wyk applied to the
first respondent for a
search and seizure warrant pursuant to the provisions of section 21
read with
section 20(a)
, (b) and (c) of the
Criminal Procedure Act,
no. 51 of 1977
, for the search and seizure of certain documents and
articles in possession or under the control of the persons (mostly
officials
or employees of ICT) mentioned in the application. The
warrant was issued on the same date by the first respondent.
[5] In her supporting
affidavit (for purposes of the application for the warrant) Van Wyk
relied on – and echoed to a large
extent the contents of the
complaint quoted in paragraph 2 above.
From the aforesaid it
will be noted that all complaints leveled against ICT and its
officials or employees centered around its application
for the
prospecting right referred to above.
[6] The relevant
portion of the warrant issued by the first respondent reads,
“
4.
You are hereby authorized
to enter the aforesaid premises of Imperial Crown Trading 289 (Pty)
Ltd during the day and you are instructed
to search for the articles
and documents reflected in annexure “A” hereto and to
seize the said documentation, if found,
and to deal with the said
documentation according to the provisions and powers accorded to you
under
Section 20
of Act 51 of 1977.
”
The said Annexure ‘A’
reads as follows:-
“
1.
Correspondence with any
party relating to the conducting of prospecting work of any type over
the Sishen Iron Ore Company (Pty)
Limited properties being the
properties mentioned in the application purportedly by Imperial Crown
Trading (Pty) Limited purportedly
submitted on 4 May 2009.
2.
Any record of the
actual number or numbers of the landline and cellular telephones used
by Sehunelo, Carter (Ferris), Luhlabo, Mtshali,
Mbete and Tshethlo.
3.
The physical cellular
telephones of the parties mentioned in this annexure for the purpose
of downloading the information contained
thereon.
4.
The physical laptop
and/or desktop computers of Sehunelo, Carter (Ferris), Luhlabo,
Mtshali, Mbete and Tshethlo including the right
to take a digital
mirror image of the hard-drives of the said computers by the computer
data images experts designated for this
task in the warrant.
5.
All digital or other
records of communication with or between Sehunelo, Luhlabo, Mtshali,
Mbete, Tshethlo, Duduzile Kunene, or any
employee of the Department
of Mineral Resources e.g. e-mails for the period 29 April 2009 to 15
May 2009.
6. All petrol / garage card slips
or records of Sehunelo for the period 30 April 2009 to 11 May 2009.
7. Correspondence with any party
other than the attorneys, Mendelow Jacobs Attorneys, relating to an
application for prospecting
rights over the SIOC properties mentioned
in 1 above at any time, but in particular in the period 29 April 2009
to 11 May 2009.
8. The physical cellular
telephone of Mr Sehunelo for the purpose of downloading the
information contained thereon.
9. A copy and/or original
prospecting right application together with the annexures (details of
area, title deeds of land est.)
to the prospecting right application
over the Sishen Ore Mine of Imperial Crown Trading (Pty) Limited
which was purportedly lodged
on 4 May 2009 at Department Mineral
Resources Kimberley.
”
[7] It is common cause
that the warrant was executed by members of the SA Police Service at
the business premises of the applicant,
and that a number of
documents were seized and removed. It is further common cause that
all electronically stored data on the applicant’s
computer had
been downloaded and removed, as well as electronically stored data on
the cellphones of two of the applicant’s
officials.
7.1 Despite verbal and
written requests on behalf of the applicant for the second respondent
to engage in a process whereby only
relevant information is
downloaded from the electronically stored data and irrelevant as well
as privileged data to be returned
to the applicant, such requests
were refused. A further request on behalf of the applicant to
safeguard the documents at the offices
of the Registrar pending an
application for the setting aside of the warrant, elicited a similar
response.
7.2 The applicant then
instituted these proceedings. In part A of the notice of motion
urgent relief was sought for the interim
safekeeping of the documents
and data, and in Part B thereof relief was sought for the setting
aside of the warrant.
7.3 On 19 August 2011
this Court granted the following order:
“
1. A rule nisi hereby
issued in terms whereof the respondents are to show cause on or
before 23 September 2011 why (pending the
final determination of Part
B of this application), the following order should not be made final:
the Second, Third and Fourth
Respondents are ordered to hand to the Registrar of this Court by
not later than 12:00 on Monday
22 Augustus 2011 for safekeeping
under seal, pending the final decision of this application, all
documents seized on 27 July
2011 and copies made of electronic
communication data, electronically stored data and electronic data
messages from cell phones
and computers used by the Applicant
and/or its employees and/or its officers;
The Second, Third and Fourth
Respondent are interdicted from disclosing, directly or indirectly,
to Sishen Iron Ore Company
(Pty) Ltd (“SIOC”), Kumba
Iron Ore Co. Ltd (“Kumba”) or any company or business
related to SIOC or
Kumba, or any of its employees, officers,
shareholders or representatives, any information obtained as
aforesaid.
Such respondents who may oppose
this application should not be ordered to pay the costs of the
application.
2. Paragraph 1.1 and 1.2 hereof
will serve as an interim order and interdict with immediate effect.
”
This order was amended
on 22 August 2011 to substitute the registrar of this Court for the
registrar of the Free State High Court.
The reason for the amendment
is irrelevant for purposes hereof.
[8] Adv Wessels,
appearing for the applicant, attacked the validity of the warrant on
three grounds. Firstly it was submitted that,
on the wording of the
warrant, it was overbroad. Secondly it was contended that the warrant
was obtained for an ulterior purpose
and that relevant information
was not disclosed to the first respondent, which information, had it
been disclosed, might have persuaded
the first respondent not to
issue the warrant. Thirdly it was submitted that the warrant
authorized the seizure of privileged documents
and data unrelated to
the complaints leveled against the applicant.
[9] I do not intend to
spend much time on the alleged non-disclosure of material facts by
Van Wyk to the first respondent and/or
the allegation that the
warrant was obtained for an ulterior purpose viz. to assist Sishen in
its civil suit against ICT, and/or
the allegations of collusion
between representatives of Sishen and the office of the Director of
Public Prosecutions.
9.1 In this regard it
had been alleged
ad nauseum
in the papers that Van Wyk had
been influenced and encouraged by the legal representatives of Sishen
to obtain and execute the
warrant; that these representatives had
actively assisted Van Wyk in her application for the warrant; that
the real purpose for
the obtaining of the warrant was to allow Sishen
access to documentation and data in possession of ICT for purposes of
pursuing
its claim against ICT and the Department of Mineral
Resources for the setting aside of the prospecting permit granted to
ICT; that
Van Wyk knew that Sishen itself misrepresented to the
Director General of the Department of Minerals or its deputy that its
application
was not antedated, but failed to disclose this fact to
the first respondent; and that Van Wyk failed to disclose a number of
other
factual averments contained in the papers in the said matter
heard by Zondo J to the first respondent.
9.2 Furthermore, what
the applicant attempted to do in its papers was to convince the Court
of its innocence in regard to the alleged
charges.
[10] My reasons for not
dealing with these allegations in any detail are the following:
10.1 All allegations of
collusion between the police and/or the office of the Director of
Public Prosecutions and Sishen or its
representatives are denied.
These are serious allegations of at least dishonest conduct of a
senior police officer and a senior
prosecutor. To my mind any attempt
to resolve these issues on the papers will be tantamount to jungle
justice.
10.2 On receipt of the
written complaints, Van Wyk was duty bound to investigate these
complaints. I fail to appreciate the submission
that the assistance
by the complainant or its legal representatives in an intricate
commercial matter as this is either unwarranted
or indicative of an
ulterior motive as alleged.
10.3 What Van Wyk
investigated were the complaints as described in the aforesaid
written report. Even if it is accepted that the
complainant itself
made certain misrepresentations to the officials in the Department of
Mineral Resources, and if it is further
accepted that these
misrepresentations in itself constitute criminal conduct, that, to my
mind, has no bearing on the question
whether the applicant allegedly
committed the crimes complained of by Sishen. Van Wyk has not
received a complaint against Sishen,
and neither was she called upon
to investigate such a complaint.
10.4 For these reasons
it is improbable that the first respondent, had he been alerted to
Sishen’s alleged misrepresentation,
might not have issued the
warrant. A second crime committed by a third party under similar
circumstances as the crime committed
by another suspect, cannot serve
as a pardon or defence in favour of the latter.
10.5 What the applicant
attempted to illustrate in its papers was,
inter alia
, that it
did not commit the alleged crimes. The factual allegations on which
ICT’s “defence” are founded, are
strenuously
denied, and are therefore subject to a real factual dispute which
cannot and should not be resolved on the papers.
These allegations in
any event beg the question: What the first respondent had to consider
was not whether ICT was guilty or innocent,
but whether there were
reasonable grounds to believe that the alleged offences had been
committed. It was not contended that this
jurisdictional requirement
was not met.
[11] That brings me to
the “overbreadth” issue. For purposes hereof I intend to
approach this question in line with
the following
dicta
:
“
The warrants in the
present case cannot, to my mind, be said to have been drawn in such a
manner as to identify the documents directed
to be seized with the
offence mentioned in the warrants, namely, a contravention of sec. 22
(1) of the Copyright Act. In this respect
I cannot agree with the
finding of the learned Judge a quo that ‘the documents referred
to in the warrant must … be
read to refer to such as will
relate to the suspected offence’. Moreover, even if it were
possible to say that the general
description of the documents
mentioned in the first part of the warrant was meant to be qualified
by the preceding words “a
contravention of sec. 22 (1) of Act
63 of 1965 – Copyright Act”, I find it difficult to
visualize how the executing
officer could exercise a discretion as to
what documents to select where the said section of the Copyright Act
makes provision
for a number of different kinds of offences relative
to copyright.
”
(
Cine Films (Pty)
Ltd v Commissioner of Police
1972 (2) SA 254
(AD) at 267G to
268A).
“
(c) The terms of a search
warrant must be construed with reasonable strictness. Ordinarily
there is no reason why it should be read
otherwise than in the terms
in which it is expressed.
(d) A warrant must convey
intelligibly to both searcher and searched the ambit of the search it
authorizes.
(e) If a warrant is too general,
or if its terms go beyond those the authorizing statute permits, the
Courts will refuse to recognize
it as valid, and it will be set
aside.
(f) It is no cure for an
overbroad warrant to say that the subject of the search knew or ought
to have known what was being looked
for: The warrant must itself
specify its object, and must do so intelligibly and narrowly within
the bounds of the empowering statute.
”
(
Powell N.O. and
Others v Van der Merwe N.O. and Others
,
2005 (5) SA 62
(SCA) at
85 D to F).
[12] The offences Van
Wyk were investigating all turned on alleged conduct of officials or
employees of ICT committed in connection
with the application and
granting of a prospecting permit during or about the period April to
May 2009 in respect of the Sishen
properties.
12.1 Read in its
context, paragraph 1 of Annexure ‘A’ to the warrant is
clearly intelligible. It narrows the ambit of
the search to such
correspondence relevant for purposes of the application for a
prospecting permit on the particular properties.
To my mind it cannot
be said that the contents of this paragraph is either vague or
overbroad.
[13] To my mind, the
contents of paragraphs 2, 3, 4 and 5 of the said annexure do not meet
the aforesaid judicial requirements because
of its overbreadth.
13.1 Paragraph 8 is a
duplication of paragraph 3 since the name of Mr Sehunelo already
appears in paragraph 2 of “this annexure”.
13.2 The telephone or
cellular telephones mentioned in paragraph 2 are not limited to any
time period nor to the purpose for which
it was used. On the wording
of the paragraph, it literally includes all telephones or cellphones
ever used by any of the persons
mentioned in the annexure at any time
during their lives, whether it be their personal or official phones
or that of another. It
even includes “any employee” of
the DMR.
13.3 The same applies
to the information to be downloaded as authorized in paragraphs 3 and
4 in that the information to be so downloaded
is not limited to any
time period or to data relevant for purposes of the police
investigation. See for instance the limitations
contained in
paragraph 7. The contents of these paragraphs will in effect give
unlimited access to the police of all data and correspondence
electronically captured on these devices, whether such data is of a
personal nature, business related or whatever.
13.4 The “records
of communication” referred to in paragraph 5 of Annexure ‘A’,
although limited to a time
period, are in no way limited to the
offences investigated by the Police. Compare in this regard the
wording of the search warrants
in
Thint (Pty) Ltd v NDPP
,
2009
(1) SA 1
(CC).
[14] The documentation,
correspondence and other goods referred to in paragraphs 1, 6 and 9
of Annexure ‘A’ to the warrant,
are clearly relevant to
the investigation of the offences mentioned in the warrant. The
wording of these paragraphs are reasonably
intelligible and not
overbroad or vague. See
Minister of Safety & Security v Van
der Merwe
,
2011 (2) SACR 301
(CC) at 313 (e):
“
[40] The third safeguard
relates to the terms of a warrant. They should not be too general. To
achieve this, the scope of the search
warrant must be defined with
adequate particularity to avoid vagueness or overbreadth. The search
and seizure operation must thus
be confined to those premises and
articles which have a bearing on the offence under investigation.
”
[15] Since the complete
execution of the warrant had been avoided by the
interim
order
issued, it is possible to strike down only those parts of Annexure
‘A’ to the warrant found to be defective,
and thereby
severing the good from the bad. (
Thint (supra)
paragraph 211.)
[16] It is common cause
that, since the seizure of the cellphones and computers referred to
in paragraphs 3 and 4 of Annexure ‘A’
to the warrant, the
police had the information and/or data captured thereon downloaded,
which copies, electronic data and/or mirror
images, are presently
held in safe custody by the registrar of the Bloemfontein High Court.
Since some of this data may contain
certain evidence for the purposes
of the envisaged criminal prosecution, I agree with counsel for the
respondents that the appropriate
remedy would be to grant a
preservation order in respect of the downloaded data. See in this
regard
Thint (Pty) LTd v NCPP
[2008] 1 All SA 229
(SCA) at 231
to 232; as well as
Thint (supra)
paragraphs 223 and 224.
16.1 A preservation
order will efficiently protect the applicant’s claim it may
have in respect of any legal professional
privileged information
contained in the downloaded data. No privilege was claimed by the
applicant in respect of any specific document
seized under paragraphs
1, 6, 7 or 9 of Annexure ‘A’ to the warrant.
16.2 No purpose will be
served for this Court to determine or lay down the procedure to be
followed should the prosecution or defence
in the purported criminal
proceedings wish to adduce any information captured on the copies or
images preserved in terms of the
order I intend to make herein. Such
procedure should be determined by the Court in the criminal trial.
[17] What remains to be
considered is the question of costs. I will deal first with the costs
of the application for
interim
relief.
17.1 The warrant was
issued on 26 July 2011. The very next day Attorney Mendelow and Adv
Wessels telephonically requested Van Wyk
(the fourth respondent) to
agree to the following proposal:
“
I would like to ask you to
not or .. I don’t want you to download anything at this stage.
What I want to ask you to do is
the following. I am going to ask you
to remove all of these laptops, computers and everything else that
you want to, to take it
to an independent attorney in Kimberley to
retain it pending our arrival there to be present in to .. to be able
to see item for
item what you are downloading so that we’ve got
a contemporaneous record of what you are actually taking off these
computers
and there seems to me that there is no reason you can’t
safeguard your own interests by removing these computers to an
independent
attorney or you can keep them in situ on the premises,
you can have somebody there to ensure that they remain off, that they
are
not in any way tampered with. That would be a very easy thing to
safeguard. We will get onto the next plane to Kimberley and we
will
come and we will do this exercise with you because we want to be
present given the completely inextricable nature of all the
confidentiality that there is here, and any items that may be in
dispute as to whether they are or aren’t privileged, can
at
least be safeguarded, set aside and placed before a Judge to
determine their privileged or otherwise. So they can be safeguarded…
”
and,
“…
my suggestion is
carry on, complete your task of downloading, but do not remove
anything, even the hard drives onto which you are
downloading, until
such time as we have had the opportunity of sitting with you and
going through it with you, identifying that
which is contentious,
that which is not contentious as far as privilege is concerned, that
which properly falls under the warrant,
that which doesn’t.
”
The proposals were
abruptly turned down by Van Wyk.
17.2 These requests and
proposals were repeated to the third and fourth respondents in
writing on the 29
th
of July 2011, but were not accepted.
On 3 August 2011 the said respondents were called upon
“…
to give us your
undertaking by immediate return of email, that all the information as
well as the physical documents which were
seized by the SAPS on 27
July 2011 shall be placed in the custody and control of the Registrar
of the High Court, Northern Cape
Division, still sealed, to be kept
under lock and key, pending the outcome of the application which we
intend to launch in the
near future to set aside the warrant. Such
undertaking would enable the said contemplated application to be
heard in the ordinary
course rather than by way of urgency and on
short time limits.
”
Once again the said
respondents declined to agree to these proposals.
17.3 To my mind the
aforesaid proposals were reasonable under the circumstances, and, had
the said respondents agreed thereto, the
ensuing litigation could
have been avoided. Not surprisingly, when the urgent application was
heard, the respondents consented
and agreed to the terms of the said
order.
17.4 The applicant was
the successful party in the urgent application, and is partially
successful in the main application.
17.5 For these reasons
the second, third and fourth respondents should pay the applicant’s
costs of the urgent application.
[16] To my mind no
costs order is justified in the main application.
16.1 Both the
applicants on the one hand and the respondents on the other hand were
partially successful and partially unsuccessful
in the relief
claimed.
16.2 It is correct, as
contended on behalf of the respondents, that the applicant
unnecessarily burdened the papers in the application
with irrelevant
and foreseeable factually disputed allegations, which in turn
elicited lengthy responses, but not all these averments
were
necessarily uncalled for. For instance the allegations and affidavits
in regard to the apparent tampering with the sealed
bags in which the
information et cetera were kept when removed from the High Court,
Kimberley to the Bloemfontein High Court were
not insignificant. Such
evidence may cast a different light on the veracity of the Police
employees if another court should adopt
a different approach to the
application than the one I adopted.
[17] The following
order is therefore made:
A. SAVE AS PROVIDED
FOR IN THIS ORDER, THE RULE NISI GRANTED ON 19 AUGUST 2011 AS AMENDED
ON 22 AUGUST 2011, IS HEREBY DISCHARGED.
B. THE SECOND, THIRD
AND FOURTH RESPONDENTS ARE DIRECTED TO PAY THE APPLICANT’S
COSTS JOINTLY AND SEVERALLY, THE ONE PAYING
THE OTHERS TO BE
ABSOLVED, OF THE AFORESAID APPLICATION FOR INTERIM RELIEF.
C. PARAGRAPHS 2, 3,
4, 5 AND 8 OF ANNEXURE ‘A’ TO THE SEARCH AND SEIZURE
WARRANT ISSUED BY THE FIRST RESPONDENT ON 26
JULY 2011 ARE HEREBY SET
ASIDE AND DECLARED NULL AND VOID.
D. IN ALL OTHER
RESPECTS THE AFORESAID WARRANT IS DECLARED LAWFUL AND VALIDLY
EXECUTED.
E. THE REGISTRAR,
FREE STATE HIGH COURT, BLOEMFONTEIN, IS DIRECTED TO RETURN TO THE
THIRD RESPONDENT AND/OR FOURTH RESPONDENT ALL
GOODS AND/OR DOCUMENTS
SEIZED UNDER PARAGRAPHS 1, 6, 7 AND 9 OF ANNEXURE ‘A’ OF
THE AFORESAID SEARCH AND SEIZURE WARRANT.
F. THE AFORESAID
REGISTRAR OF THE HIGH COURT, BLOEMFONTEIN, IS DIRECTED TO RETAIN
UNDER SEAL AND SAFEKEEPING COPIES AND/OR IMAGES
AND/OR DATA
DOWNLOADED FROM ANY COMPUTER, LAPTOP COMPUTER OR CELL PHONE SEIZED
UNDER PARAGRAPHS 2, 3, 4, 5 AND 8 OF ANNEXURE ‘A’
TO THE
AFORESAID SEARCH AND SEIZURE WARRANT, SUBJECT TO THE FOLLOWING:
F1. SUCH COPIES,
IMAGES AND/OR DATA SHALL NOT BE DELIVERED AND/OR DISCLOSED TO ANY
PERSON WITHOUT A COURT ORDER TO THAT EFFECT,
AND THEN ONLY IN TERMS
OF SUCH ORDER; OR
F2. ON THE WRITTEN
INSTRUCTIONS OF THE FIRST AND/OR SECOND AND/OR THIRD RESPONDENT, THE
SAID COPIES, IMAGES AND/OR DATA OR ANY THEREOF
SHALL BE RETURNED TO
THE APPLICANT; OR
F3. ON THE WRITTEN
NOTIFICATION BY THE SECOND AND/OR THIRD AND/OR FOURTH RESPONDENT THAT
NO CRIMINAL PROCEEDINGS ARE INSTITUTED
AGAINST THE APPLICANT PURSUANT
TO THE ALLEGED OFFENCES REFERRED TO IN THE AFORESAID WARRANT, THE
SAID COPIES AND/OR IMAGES AND/OR
DATA ARE TO BE RETURNED TO THE
APPLICANT FORTHWITH.
G. THE AFORESAID
REGISTRAR IS INSTRUCTED TO RETURN TO THE APPLICANT ALL OTHER
DOCUMENTS AND/OR GOODS SEIZED UNDER PARAGRAPHS 2,
3, 4, 5 AND 8 OF
ANNEXURE ‘A’ TO THE AFORESAID WARRANT.
H. NO ORDER AS TO
COSTS IS MADE.
_________________
HJ LACOCK
JUDGE
For
the Applicant:
Adv. E. Wessels oio Van de Wall & Partners
For
the 2
nd
to 4
th
Respondents
: Adv. M. Khoza SC oio The State
Attorney
For
the 5
th
to 6
th
Respondents
:
Adv. Marcus SC oio Duncan &
Rothman Inc.