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[2012] ZANCHC 55
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Imperial Crown Trading 289 (Pty) Ltd v Birch NO and Others (1338/2011) [2012] ZANCHC 55 (12 October 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:
27 / 09 /2012
Datum gelewer: / Date
delivered:
12 / 10 /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 is a somewhat
surprising application for leave to appeal by the fifth and sixth
respondents (in the main application) whilst
no similar applications
had been filed by any one of the prosecution authorities (second to
fourth respondents). No counter application
was filed by the
Applicant.
[2] For purposes of
this judgment, the parties are referred to as in convention.
[3] At the outset, Adv
Marcus SC, appearing for the fifth and sixth respondents
(collectively referred to as Sishen) drew my attention
to an obvious
mistake in paragraph F2 of my order wherein reference is made to “the
first respondent”. The paragraph
should have read “the
second, and/or third and/or fourth respondents”. The error has
now been rectified, and the order
amended accordingly.
[4] The first line of
attack against the order made is leveled against the wording of
paragraphs F2 and 3 of the order. Mr Marcus
argued that in the event
of the issuing of an instruction to return the documents, etc., to
the applicant or the eventuality referred
to in paragraph F3 of the
order, I should have made provision for a window period for the
further preservation of the goods to
allow Sishen to file an
application within this period to further preserve the goods pending
a private prosecution to be instituted
by Sishen against ICT.
4.1. The short answer
hereto is to be found in,
inter alia
, the judgment in
Barclays
Zimbabwe Nominees (Prt) Ltd v Black
,
[1990] ZASCA 92
;
1990 (4) SA 720
(AD), to the
effect that a company has no
locus standi
to institute a
private prosecution.
4.2. As conceded by Mr
Marcus, a preservation order made in pursuance of a search and
seizure warrant affords no vehicle to a litigant
for an application
for an Anton Pillar order.
[5] Secondly Mr Marcus,
as was done in argument in the main application, relied on the
Constitutional Court judgment in
Thint (Pty) Ltd v NDPP
,
2009
(1) SA 1
(CC) in criticizing paragraph C of my order. It was argued
that a Court of Appeal may, when comparing the wording of the warrant
issued by the first respondent in this matter with the wording of the
warrant issued in
Thint (supra)
, and when regard is had to the
warrant as a whole, such Court may find that I erred in striking down
those portions of the warrant.
5.1. I have dealt with
this submission in my judgment, and I once again carefully considered
this argument. I am however convinced
that there are no reasonable
prospects that a Court of Appeal may come to a different conclusion.
The ambit of the alleged offences
in
Thint (supra)
cannot be
compared to the limited issues relevant in this matter and the
limited timeframe within which the “offences”
were
allegedly committed. I remain convinced that the wording of the
warrant was overbroad in respect of the paragraphs struck
down.
[6] For these reasons
the following order is made:
THE APPLICATION FOR
LEAVE TO APPEAL IS DISMISSED WITH COSTS.
_________________
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.