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[2011] ZAKZDHC 85
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Wasteman Holdings (Pty) Ltd v Serfontein and Others (3551/2011) [2011] ZAKZDHC 85 (20 December 2011)
IN THE
KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC
OF SOUTH AFRICA
CASE NO :
3551/2011
In the
matter between:
WASTEMAN
HOLDINGS (PTY) LTD
…............................................................
Applicant
and
FRANCOIS
RYNO SERFONTEIN
…......................................................
First
Respondent
THE
MINISTER OF ENVIRMENTAL
AFFAIRS
AND TOURISM
…................................................................
Second
Respondent
THE
MEMBER OF THE EXECUTIVE
COMMITTEE,
DEPARTMENT OF
AGRICULTURE,
ENVIRONMENTAL
AFFAIRS
& RURAL DEVELOPMENT,
KWA-ZULU
NATAL
…...........................................................................
Third
Respondent
THE
MUNICIPAL MANAGER :
ETHEKWINI
MUNICIPALITY
….......................................................
Fourth
Respondent
THE
COMMISSIONER SOUTH
AFRICAN
POLICE SERVICES
…...........................................................
Fifth
Respondent
THE
MINISTER OF SAFETY &
SECURITY
….............................................................................................
Sixth
Respondent
MAGISTRATE
P I SINGH N.O.
….....................................................
Seventh
Respondent
THE
MEMBER OF THE EXECUTIVE
COMMITTEE,
DEPARTMENT OF
WATER
AFFAIRS, KWA-ZULU NATAL
….........................................
Eight
Respondent
___________________________________________________________
J U D G M E N T
K
PILLAY J
The Applicant, Wasteman Holdings (Pty) Ltd, sought
orders in two parts against the aforesaid Respondents.
Part A of the application required urgent relief in the
following terms:
Dispensing with the forms of service and time
periods stipulated in the Uniform Rules for the Conduct of
proceedings in the above
Honourable Court, and disposing of this
part of the application as an urgent application in accordance with
the rule of Rule
6 (12) of the Uniform Rules.
Pending the finalisation of the relief sought in
Part B of this Notice of Motion,
2.1 Ordering the first to sixth and eighth
respondents and/or their servants and/or representatives forthwith to
seal and preserve
all the documents, objects and samples seized by
the first to sixth and eighth respondents and/or their servants
and/or representatives
at the Bulbul landfill site Chatsworth, Durban
on 10 February 2011, by:-
2.1.1 Sealing the aforementioned documents, objects
and samples in the presence of the applicants duly authorised
representatives
in a manner so as to ensure that no further access is
had or made to the documentation, objects and samples;
2.1.2 Storing the aforesaid documents, objects and
samples with the Registrar of this Honourable Court in safekeeping at
the discretion
of the said Registrar;
2.2 Ordering that no party shall have access to the
aforementioned documents, objects and samples unless by agreement
between the
parties or by Order of Court.
3. Granting the applicants leave to supplement their
papers within five days of the date of the Order in this part of the
application.
4. Ordering such respondents as oppose this part of
the application to pay the costs thereof; otherwise ordering the
first respondent
to pay the costs of this part of the application.
5. Granting the applicants further and/or alternative
relief.
Part B of the application related to setting aside of
the search warrant, alternatively reviewing and setting aside the
search warrant
and/or the execution of the search warrant. The order
sought was thus framed in the following terms:-
Setting aside alternatively reviewing and setting
aside the search warrant alternatively the decision to issue the
search warrant
issued by the seventh respondent on 9 February 2011
(“the search warrant”).
Setting aside, alternatively reviewing and setting
aside the execution of the search warrant carried out at the Bulbul
landfill
site Chatsworth, Durban on 10 February 2011 (“the
execution of the search warrant”).
Ordering the return of the documents and objects
seized, and the samples taken pursuant to the execution of the
search warrant,
to the applicant forthwith; and in the event that
this Order is not complied with within five days of service on the
respondents
of a copy thereof, authorising the Sheriff to remove the
aforesaid documents, articles and samples from the custody of the
respondents,
wherever they may be found, and returning these to the
applicant.
Interdicting the first, second, third, fourth,
fifth, sixth and eight respondents and/or their servants and/or
representatives
from making use of any of the documents, articles
and/or samples taken pursuant to the search warrant or the execution
of the
search warrant, or making use of any information obtained
during or in consequence of the execution of the search warrant in
any administrative, civil or criminal proceedings.
Ordering such respondents as oppose this application
to pay the costs thereof, jointly and severally, the one paying the
other
to be absolved.
Granting the applicant further and/or alternative
relief.
The urgent interim relief sought in Part A was settled
by agreement between the parties on 25 March 2011 in the following
terms:-
That this matter is postponed to the 14
th
of June 2011 on the opposed roll;
That the applicant is given leave to supplement its
founding papers, if it so wishes, by 8 April 2011;
That such respondent as are opposing the relief
sought in part b of the notice of motion are to file affidavits by
the 30
th
of April 2011;
That the applicant is to file is response to the
affidavits of the respondents’, if any, by 14 May 2011;
That the applicant is to file its heads of argument
by 26 May 2011. Such respondents’ as oppose the applicant’s
relief
are to file their heads of argument by 3 June 2011;
That the costs of the hearing of today are reserved
for consideration by the Court deciding part b of this application.
IT IS RECORDED THAT THE FOLLOWING HAS BEEN AGREED
BETWEEN THE PARTIES IN RESOLUTION OF THE ISSUE RAISE IN PART A OF THE
NOTICE OF
MOTION:
All items seized in terms of the search warrant
executed on 10 February 2011 under the search warrant referred to in
the notice
of motion will be sealed in a box or boxes such sealing
to take place in the presence of the parties or their
representatives
within no later than 2 days of the Order;
The documents so sealed will be stored at the
offices of Friedland Hart Solomon & Nicolson Attorneys, Pretoria
until resolution
by this Court of the dispute in part b of the
notice of motion.
In respect of samples of any material taken on the
10
th
of February 2011 from the premises mentioned in the
search warrant referred to in this application which samples are in
the process
of being put up for analysis at a laboratory, any result
of such analysis will immediately upon production thereof without
being
read or considered by any party to these proceedings be placed
in a sealed envelope to be sealed in the same manner as aforesaid
within no later than 2 days of this Order and placed for safekeeping
with Friedland Hart Solomon & Nicolson Attorneys, Pretoria
until
resolution of dispute in part b.
BACKGROUND
This matter concerns the validity or otherwise of a
search and seizure warrant issued by Magistrate P I Singh N.O.
(Seventh Respondent).
On 10 February 2011 the search warrant was
effected by the First Respondent and various employees of the other
Respondents.
The Applicant is a waste disposal company which collects
and disposes of medical waste for their respective clients. It is not
in
dispute that they have contracts with major private hospital
groups in South Africa which include “Life Healthcare”
and “Medicross” as well as tenders that were awarded to
them by the Provincial Departments of Health, to dispose of
medical
waste generated at the relevant provincial hospitals. The Wasteman
Group of companies consist of the following companies:
Phambili Wasteman (Pty) Ltd
Wastean KZN (Pty) Ltd
Wasteman Group (Pty) Ltd
Wasteman Holdings (Pty) Ltd
Wasteman Healthcare (Pty) Ltd
The First Respondent is designated an Environment
Management Inspector under the Provisions of the National
Environmental Management
Act (hereinafter referred to as Act 107 of
1998). He is also the investigating officer in case file E
462/10/2009, where allegations
of the illegal disposal of medical
waste are being investigated.
On 4 February 2011 he applied for a search and seizure
warrant in respect of the Applicant’s premises. In paragraph 5
of his
affidavit, in support of his application, he stated the
following:-
“
During the investigation it
was established that the Wasteman Group owned and managed a landfill
at 101 Bulbul Drive in Silverglen,
Chatsworth. Further investigations
were conducted into the operations undertaken at the Bulbul Drive
Landfill and the following
were established:
The Wasteman Group do have a waste permit in terms
of section 20 of the Environment Conservation Act, Act 73 of 1989
Various complaints were received from residents and
community leaders in the Chatsworth area regarding the operations of
the Wasteman
Group at the Bulbul Drive Landfill
Site visits were conducted in the past by the
Ethekwini Municipality that found various non-compliance
Site visits were conducted by the KZN Department of
Agriculture, Environment and Rural Development in the past and they
found
various non-compliance on the site
Due to aforementioned investigation conducted it was
found that the Wasteman Group are in non-compliance with various
conditions
of their section 20 waste permit and therefore are
contravening the following legislation.
On 9 February 2011, the Seventh Respondent issued the
warrant. I believe it is necessary to set out the entire impugned
search warrant
hereunder.
SEARCH WARRANT
(Section 20, 21 and 25 Criminal Procedure Act, 1977
(Act 51 of 1977)
AS PER ANNEXURE “A” in terms of section
13(4) of Act 68/1995 (Police Services Act)
Whereas it appears to me from information under oath
that there are reasonable Grounds to believe that, within the
Magisterial District
of Chatsworth
There is an article to wit ........AS PER ANNEXURE
“B” ........... which:
(a)is
concerned in the commission of an offence
x
(b)is
concerned in the suspected commission of an offence
x
(c)is
on reasonable grounds believed to be concerned in the commission
of an offence
x
(d)is
on reasonable grounds believed to be concerned in the suspected
commission of an offence
x
(e)may
afford evidence of the commission of an offence
x
(f)may
afford evidence of the suspected commission of an offence
x
(g)is
intended to be used in the commission of an offence
x
(a)is
on reasonable grounds believed to be intended to be used in the
commission of an offence
x
And which is in the possession of / under the control
of / upon or at a premises at / upon the person of 101 Bulbul Drive
Silverglen,
Chatsworth.
THESE ARE THEREFORE to authorize you to search in the
daytime the identified person / to enter and search the identified
premises
and to search any person found on or at such premises and to
direct you to seize the said .........AS PER ANNEXURE “B”
..................if found, and to deal with it according to section
30 of the Criminal Procedure Act, 1977 (Act 51 of 1977).
Annexure ‘A’ to the warrant, in addition to
the First Respondent, authorised 19 other persons to assist with the
search.
These persons included members of the SAPS, the Department of
Environmental Affairs, Ethekwini Municipality, the KZN Department
of
Agriculture, Environmental Affairs and Rural Development and the KZN
Department of Water Affairs.
The warrant was then executed on the 11 February 2011 at
the premises of Applicant by the First Respondent and various others,
as
set out in Annexure ‘A’. A document, Annexure ‘B’
setting out a list of documents sought was handed to Mr
Botts, the
Regional General Manager for the Applicant. On completion of the
search an inventory of the seized items was drawn up
and furnished to
Mr Botts.
At the search, and several times over the course of days
following the search, the Applicant’s attorneys made several
attempts
to determine the offence that the Applicant was suspected of
having committed, without success. The affidavit deposed to by the
First Respondent which accompanied the application for the warrant,
and in which the suspected crimes were listed, was eventually
provided to the Applicant on 7 March 2011.
These proceedings were then instituted. Various issues
were raised. In the light of the conclusion I have reached, I believe
it
is necessary to deal only with the following essential issues.
Whether or not the Magistrate applied his mind before
granting the search and seizure warrant;
Whether the warrant is invalid because it does not
expressly state the offence which the applicant is suspected of
having committed;
If the Court finds in favour of the Applicant on ether
(1) or (2) above, what the appropriate order should be.
It is well established that search
and seizure operations by state officials are by their nature
intrusive on an individual’s
constitutionally protected rights,
particularly those of privacy and dignity. (See
Minister
of Safety and Security v Van Der Merwe & Others).
1
However, they serve a valuable
purpose in enabling the State to carry out its constitutional mandate
to prevent and detect criminal
activities.
These conflicting interests have to be counter poised
and the traditional manner in which this is achieved is by requiring
firstly
that State officials who wish to intrude on the right to
privacy do so by obtaining search and seizure warrants, unless they
can
justify not doing so for valid reasons, and secondly by insisting
on strict compliance with the parameters of the search set out
in the
warrant.
As aptly stated by Van der Westhuizen
J in
Magajane v
Chairperson, NorthWest Gambling Board and Others.
2
‘
[A warrant] is the method
tried and tested in our criminal procedure to defend the individual
against the power of the sate, ensuring
that police cannot invade
private homes and businesses upon a whim, or to terrorise. Open
democratic societies elsewhere in the
world have fashioned the
warrant as the mechanism to balance the public interest in combating
crime with the individual’s
right to privacy. The warrant
guarantees that the State must justify any support intrusions upon
individuals’ privacy under
oath before a neutral officer of the
court prior to the intrusion. If furthermore governs the time, place
and scope of the search,
limiting the privacy intrusion, guiding the
State in the conduct of the inspection and informing the subject of
the legality and
limits of the search.’
3
In balancing the conflicting
interests, two important points relevant to this matter must be
mentioned. The first is that where
the right to privacy is sought to
be enforced by a juristic person, the Constitutional Court, in
determining whether the right
to privacy has been infringed, has said
that a business generally has a lower expectation of privacy than an
individual.
4
Furthermore, a business that is
public in nature, is involved in an industry that is regulated by
legislation, or conducts activities
that are potentially hazardous to
the public will also possess an attenuated right to privacy.
5
Secondly, if an invasion of privacy
such as a search is primarily intended for criminal enforcement
purposes, it will attract a
far greater level of scrutiny than an
invasion that is merely a regulatory inspection for the purpose of
legal compliance. This
would be so even if the invaded premises are
commercial in nature.
6
I turn now to deal with the issues as aforesaid.
(1)
Whether or not the Magistrate applied his mind
before granting the search and seizure warrant.
Section 25 of Act 51 of 1977 is applicable to this
application. I set out the relevant portions of the aforesaid section
hereunder.
25 Power of police to enter premises in connection
with State Security or any offence
(1) If it appears to a magistrate or justice from
information on oath that there are reasonable grounds for believing-
(a) that the internal security of the Republic or the
maintenance of law and order is likely to be endangered by or in
consequence
of any meeting which is being held or is to be held in or
upon any premises within his area of jurisdiction; or
(b) that an offence has been or is likely to be
committed or that preparations or arrangements for the commission of
any offence
are being or are likely to be made in or upon any
premises within his area of jurisdiction, he may issue a warrant
authorizing
a police official to enter the premises in question at
any reasonable time for the purpose-
(i) of carrying out such investigations and of taking
such steps as such police official may consider necessary for the
preservation
of the internal security of the Republic or for the
maintenance of law and order or for the prevention of an offence;
(ii) of searching the premises or any person in or
upon the premises for any article referred to in section 20 which
such police
official on reasonable grounds suspects to be in or upon
or at the premises or upon such person; and
(iii) of seizing any such article. ... ... ... ...
This section permits a Magistrate to issue a search
warrant if there exist reasonable grounds for believing that an
offence has
been or is likely to be committed. A Magistrate who is
faced with such an application has to exercise a judicial discretion,
which
discretion is difficult to challenge.
Reasonable grounds, do not amount to
a belief that a criminal case has been made out, but that reasonably
seen, there are grounds
for a belief that a person may have in his
possession, or under his control, an article, which can be of use in
proving a criminal
case,
7
and it must be clearly worded.
In
Mandela
v Minister of Safety and Security
8
the Court noted that, reasonable
grounds for believing does not require grounds that measure up to an
objective standard, but rather
grounds which in the subjective
opinion of the Magistrate are reasonable. Thus, the Court may not
interfere with the Magistrate’s
decision merely because it
views his/her conclusion as incorrect. To justify interference, the
Court must be satisfied that the
Magistrate did not apply his/her
mind to the matter.
9
In
Van
der Merwe v Minister van Justisie en ‘n Ander
10
The Court held that the Magistrate’s
decision as to whether or not the required reasonable grounds exists
is decisive, and
emphasised that it would only interfere where it is
of the opinion that the Magistrate has not applied his or her mind.
This would
occur, for example, where the Magistrate acted
mala
fide,
with an
improper motive, arbitrarily or grossly unreasonable. It added that
the onus would be on the person seeking to set the warrant
aside to
show that on a balance of probabilities the Magistrate did not apply
his mind to the matter.
In this regard, the first argument raised by the
Applicant is that the Magistrate did not apply his mind to the matter
in as much
as there were insufficient details in the First
Respondent’s affidavit to explain the circumstances under which
he suspected
that the offences had been committed. It is submitted
that in respect of the alleged complaints received from the community
the
nature of these is not indicated, and neither is the nature of
the non-compliance discovered at site visits nor any other details
of
these inspections disclosed.
He argues that in essence that affidavit merely sets out
conclusions which the First Respondent has made but offers little by
way
of objective facts on which the Magistrate could form reasonable
grounds to believe that an offence had been committed.
It is further contended that despite the general
vagueness of the averments in the affidavit, the Magistrate issued
the warrant
by ticking off every box dealing with likely offences.
The argument is that this came about as there were insufficient facts
before
the Magistrate.
An analysis of the affidavit reveals that it was made
clear that the Applicant is involved in the disposal of medical
waste, that
it operates a landfill, for which it has a waste permit
in terms of Section 20 of Act 73 of 1989.
The First Respondent averred that he
was investigating allegations of the illegal disposal of medical
waste by the Applicant. He
received various complaints from residents
and community leaders in the Chatsworth area; that site visits were
conducted in the
past by the Ethekwini Municipality and KZN
Department of Agriculture, Environments and Rural Development, where
“
various
non-compliance”
were
found.
The allusion to
“
non-compliance”
although not specified as to what the
non compliance was in reference to must surely be seen as a reference
to the permit. This
is made clear in paragraph 6 of First
Respondent’s affidavit, where he states:
“
Due to above-mentioned
investigation conducted it was found that the Wasteman Group are in
non-compliance with various conditions
of their Section 20 Permit and
therefore are contravening the following legislation”
He
then specifies the legislation contravened.
I agree with Mr Kemp that the Magistrate was entitled in
his discretion, to reasonably infer that the complaints of the public
and
reports of responsible State officials of non-compliance with
permit conditions gave rise to a reasonable suspicion of
contravention.
I am therefore not persuaded that the Magistrate did
not act within the prescripts of Section
25 Act 51
of 1977.
(2)
Whether the warrant is invalid because it does
not expressly state the offence which the applicant is suspected of
having committed.
The warrant in this matter does not clearly state the
offence of which Applicant is suspected of having committed. Whilst
these
were contained in the First Respondent’s affidavit, this
affidavit was not attached to the warrant when it was served on the
Applicant.
The affidavit was not, in fact, provided to the
Applicant until three and a half weeks after the search and seizure
operation was
conducted, and despite the Applicant’s attorney
making several requests to be provided with it.
Powell NO and Others v Van der
Merwe NO and Others,
11
emphasised the need for scrutinising
search warrants with rigour and exactitude –
“
indeed,
with sometimes technical rigour and exactitude”.
Given that South Africa’s
history evidences a particular need for this approach,
12
and the fact that the common law
rights which were sought to be protected are now part of the
constitutional order,
13
this approach is as apt today as it
has been in the past.
Thus in
Powell
supra,
14
the Supreme Court of Appeal arrived
at the following conclusion after scrutinising earlier cases dealing
with warrants.
(a) Because of the great danger of misuse in the
exercise of authority under search warrants, the Courts examine their
validity
with a jealous regard for the liberty of the subject and his
or her rights to privacy and property.
(b) This applies to both the authority under which a
warrant is issued, and the ambit of its terms.
(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 authorises.
(e) If a warrant is too general, or if its terms go
beyond those the authorising statute permits, the Courts will refuse
to recognise
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 and the warrant must itself specify its object, and must
do so intelligibly and narrowly within the bounds of the empowering
statute.
In
Thint
v National Director of Public Prosecutions,
15
the Constitutional Court assessed the
validity of a warrant issued in terms of the National Prosecuting
Authority Act
16
in light of the common law principles
laid down in Powell.
17
In dealing with the requirement of
intelligibility (as set out in point d above), it said that this was
determined objectively.
A warrant must be ‘reasonably
intelligible’ in the sense that it is reasonably capable of
being understood by the reasonably
well informed person who
understands the relevant empowering legislation and the nature of the
offences under investigation.
18
The latest decision in this matter
viz, in
Minister of
Safety and Security v Van Der Merwe and Others,
19
places the issue beyond the pale. In
this case the Constitutional Court said that the approach adopted in
Powell
and
Thint
indicated that the specification of
the offence in the warrant furthered the warrants intelligibility.
20
Intelligibility itself has its roots
in the rule of law, and has as some of its attributes,
comprehensibility, accountability and
predictability.
21
This in turn means that it is
essential that the person being searched knows why they are being
searched.
22
It was thus a requirement for
intelligibility that a warrant issued in terms of the
Criminal
Procedure Act must
state the offence.
23
The court concluded that in order to
be valid, therefore, a warrant must in a reasonably intelligible
manner.
24
(a) state the statutory provision in terms of which it
is issued;
(b) indentify the searcher;
(c) clearly mention the authority it confers on the
searcher;
(d) indentify the person, container or premises to be
searched;
(e) describe the article to be searched for an seized
with sufficient particularity; and
(f) specify the offence which triggered the criminal
investigation and names the suspected offender.
Counsel for the Respondent argued that, although the
offence was not specifically stated in the warrant, the nature of the
offence
could be gleaned and inferred from its contents. Furthermore,
to require the offence to be stated in the warrant served no purpose,
and he questioned what right the Applicant would be able to exercise,
that it could not exercise if the warrant did not refer to
the
offence.
As correctly submitted, no crime or suspected crime is
identified in the body of the search warrant. The tabulated list of
offences
which appears in the affidavit is not stated in the search
warrant. It is so that the warrant itself makes no mention of a crime
or a suspected crime, and as it stands makes no connection, between a
crime, or a suspected crime, and the articles mentioned in
the
annexure to the affidavit.
Allowing a warrant devoid of an expressly stated offence
to stand on the basis that the alleged offence can be inferred from
what
is being sought and the ambit of the search, would be to lean
towards the vagueness and lack of precision which the South African
Courts have up to this point sought to prevent.
This approach would make it more difficult for an
individual being searched to determine why they are being searched,
as it would
require of them to ‘connect the dots’ that
may or may not be contained in the warrant. It would remove clarity
from
the very thing intended to protect the individual from unlawful
state intrusion, and would be a step away from the rigour and
exactitude
that is required of warrants both in terms of the common
law and the constitution.
This approach is also in conflict with some of the
points laid down in
Powell
(supra) namely that there is
ordinarily no reason why a warrant should be read otherwise that in
the terms in which it is expressed.
In the same way that an overbroad
warrant is not cured if the person being searched ought to have known
what is being searched
for, it is no cure for a warrant that does not
expressly state the offence to argue that the offence can be inferred
from the terms
thereof. For these reasons, this Court cannot uphold
the validity of the warrant.
(3)
Appropriate Remedy
Counsel for Applicant no longer seeks an order in terms
of paragraph 4 of Part ‘B’ of the Notice of Motion.
Counsel for the Respondents asks that the items seized
be preserved notwithstanding that there is no counter application for
a preservation
order.
In
Thint,
(supra)
Langa
CJ
said that it is
highly desirable that the trial court be the one that is primarily
concerned with ensuring trial fairness
25
and that the ordinary rules should be
that when a trial court finds a warrant issued in terms of
section 29
of the National Prosecution Authority Act unlawful, it will preserve
the evidence so that the trial court can apply its own discretion
in
terms of section 35(5).
26
In this case, unlike in
Thint
(
supra
)
no criminal prosecution has yet been instituted.
On this issue Ponnan JA’s
comments in
National
Director of Public Prosecution and Another v Mahomed
27
are in my view apposite:
“
It is this: Out of a remedy
available to someone wronged by a rights violation, the wrongdoer
seeks to fashion for itself a right
that it otherwise would not have
had. That can hardly be authorised by our Constitution. Moreover, the
preservation order is being
sought in this case in anticipation of
possible criminal proceedings, not against the Respondent, but
against her erstwhile client,
Mr Zuma. How, it must be asked, can the
State resist a claim for restoration where the items were illegally
seized and where, even
at the date of the hearing of this appeal,
there has been no firm commitment by it that fresh charges will as a
fact be preferred
against Mr Zuma in regard to which the seized items
might be used by it as evidence?
........In order to restore both parties to the
position they would have occupied had the unconstitutional search not
have occurred,
it is necessary that the seized items be restored to
the possession of the respondent. This finding is of course no bar to
the
State proceeding duly and regularly when and if so advised.”
The Applicant has been substantially successful in his
application.
Therefore, the following order is made:
(1) This application is granted to the extent that the
search warrant issued by the Seventh Respondent on 9 February 2011 is
hereby
set aside.
(2) All documents and objects seized, and the samples
taken pursuant to the execution of the search warrant, are ordered to
be returned
to the Applicant forthwith; and in the event that this
Order is not complied with within five days of service on the
Respondents
of a copy thereof, authorising the Sheriff to remove the
aforesaid documents, articles and samples from the custody of the
Respondents,
wherever they may be found, and returning these to the
Applicant.
(3) Only such Respondents as opposed this application
are ordered to pay the costs hereof, jointly and severally, the one
paying
the other to be absolved, including the reserved costs of 25
March 2011.
___________________
K PILLAY J
Date of Judgment : 20 December 2011
Applicant’s Counsel : Advocate Michael R Hellens
SC
Instructed by : Edward Nathan Sonnenbergs
Applicant’s attorneys
c/o Edward Nathan Sonnenbergs
23
rd
Floor, Durban Bay House
333 Anton Lembede Street
Durban
Ref : Janine Lee
Respondent’s Counsel : Advocate J Kemp SC
Instructed by : The State Attorney
KwaZulu-Natal
1
st
, 2
nd
, 3
rd
, 5, 6
th
& 8
th
Respondents’ Attorneys
6
th
Floor, Medlife Building
391 Anton Lembede Street
Durban
Ms M T Hlope/cet
1
[
2011]
ZACC 19
par 21
2
2006(5)
SA 250
3
Para
74
4
Bernstein
and Others v Bester and Others NNO 1996(2) SA 751 (CC) para 85
5
Mistry
v Interim Medical and Dental Council of South Africa and Others
1998(4) SA 1127 (CC) para 27
6
Magajane
note 5 above para 70
7
Cine
Films (Pty) Ltd v Commissioner South African Police 1971(2) SA 553
(C)
8
1995(2)
SACR 397 (W) @ 404 G
9
At
404 1 – 405 9
10
1995(2)
SACR 471
11
2005
(5) SA 62
(SCA) Para 50
12
Magajane
above para 278
13
Powell
above para 50
14
Para
59
15
Thint
(Pty) Ltd v National Director of Public Prosecutions and Others;
Zuma v National Director of Public Prosecutions and others
2009(1)
SA 1 (CC)
16
Act
32 of 1998
17
At
para 152
18
At
para 154
19
Case
CCT90/10
[2011] ZACC 19
20
At
para 30
21
At
para 52
22
Ibid
23
At
para53
24
At
para 55
25
At
para 222
26
At
para 223
27
2008(1)
SACR 309