Podbielski Mhlambi Incorporated v Fourie: Landdroshof Welkom and Others (Podbielski Mhlambi Incorporated v Fourie: Landdroshof Welkom and Others) [2009] ZAFSHC 26 (12 March 2009)

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[2009] ZAFSHC 26
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Podbielski Mhlambi Incorporated v Fourie: Landdroshof Welkom and Others (Podbielski Mhlambi Incorporated v Fourie: Landdroshof Welkom and Others) [2009] ZAFSHC 26 (12 March 2009)

IN
THE
HIGH COURT OF SOUTH AFRICA
(ORAN
GE
FREE STATE PROVINCIAL DIVISION)
Case
No
.
: 6890/2008
In
matter
between:
PODBIELSKI
MHLAMBI INCORPORATED
Applicant
and
LANDDROS J FOURIE,
SENIOR LANDDROS:
LANDDROSHOF
WELKOM
1
st
Respondent
MINISTER
VAN VEILIGHEID EN SEKURITEIT
2
nd
Respondent
SPEUDER
INSPEKTEUR C E RAUTENBACH
3
rd
Respondent
SPEUDER
INSPEKTEUR E CROUS
4
th
Respondent
PADONGELUKKEFONDS
5
th
Respondent
HEARD
ON
:
12
February 2009
JUDGMENT
BY
:
C.J.
MUSI, J
_____________________________________________________
DELIVERED
ON
:
12
March 2009
Introduction
[1]
On
14 November 2008 I granted a
rule
nisi
in respect of an urgent interdict and ancillary relief sought by the
applicant against the respondents. On 11 December 2008 my
sister Van
Zyl J extended the return day to 12 February 2009 and ordered that
the costs be reserved for later determination.
[2] The
relevant parts of the aforementioned
rule
nisi
read as follows:
“
1. Kondonasie
aan die applikant verleen word vie die nie-nakoming van die
voorgeskrewe reels met betrekking tot vorm en proses
van betokening
en dat hierdie aansoek aangehoor word as ‘n dringende aansoek
kragtens die bepalings van Reëls 6 (12) gelees
met Reëls
53.
2. Tot die mate wat
die nodig mag wees, kondonasie aan die appli
kant
verleen word vie die nie-nakoming van die bepalings van Artikel 35
van die algemene Regs Wysigingswet no, 62 van 1955.
3. Bevel
nisi
uitgereik word wat die respondente oproep om redes aan te voer,
indien enige, op Donderdag 11 Desember 2008 om 09:30 of so spoedig

doenlik moontlik daarna as wat die applikant se regsverteenwoordigers
aangehoor kan word, waarom die volgende bevel nie deur die
hof
verleen behoort te word nie:
3.1 Die besluit van
die eerste respondent om lasbriewe te magtig en uit te reik onder
Welkom MAS-nommer 427/09/2008 en Welkom MAS-nommer
460/09/2008, op 2
November 2008 wat deursoeking van die applikant se perseel te Eerste
en Tweede Vloer, Elizabethstraat Complex
5, Welkom, matig en
beslaglegging van leers en hul inhoud soos uiteengesit in die
aanhangsels “A” tot die onderskeie lasbriewe,
hersien en tersyde
gestel moet word nie;
3.2 Die tweede,
derde en vierde respondente, alternatiewelik verantwoordelike
beamptes in diens van die Suid-Afrikaanse Polisiediens
onder wie se
toesig en beheer die leers sorter en uiteengesit in aanhangsel “A”
tot die funderende beëdigde verklaring
en wat reeds deur die
derde en vierde respondent verwyder is vanuit die applicant se
perseel geleë te Essex Gebou, Elizabethstraat,
Welkom, sonder
versuim aan applicant oorhandig moet word by applikant se perseel
geleë te Essex Gebou, Elizabethstraat, Welkom,
Provinsie
Vrystaat;
3.3 Die tweede tot en met vyfde
respondent gelas word om die koste te wyte aan hierdie aansoek te
betaal op ‘n skaal soos tussen
prokureur en kliënt,
gesamentlik en afsonderlik, die een betaal die ander kwytgeskeld te
word;
4. Die respondente
opgeroep word om voor of op 16:00 op Vrydag, 21 November 2008 by die
Griffier van hierdie Agbare Hof te liasser
sodanige dokumente van die
rekord van verrigtinge waar die onderwerp vorm van hierdie
hersieningsaansoek, wat nie reeds by die
applikant se funderende
stukke aangeheg is nie, gevolglik met betrekking tot oorweging en
verlening van die besluit op 10 November
2008 vir magtiging van die
genoemde lasbriewe (soos uiteengesit in paragraaf 3.1 hierbo), tesame
met sodanige redes vir die besluit
wat die respondente regtens
verplig is om te verskaf of wil verskaf en daarna sonder versuim die
applikant in kennis te stel dat
die rekord en sodanige redes by die
Griffier geliasseer is…”
Facts
[
3] The
facts of this matter are mostly common cause or not seriously in
dispute. On 10 November 2008 the third respondent, a detective

inspector in the South African Police Service (SAPS), obtained two
search warrants, Welkom CAS no. 427/08/2008 and Welkom CAS no.

460/09/2008, from the first respondent, a senior magistrate at
Welkom. The search warrants authorised the third and the fourth

respondents to search, in the presence of a representative of the
fifth respondent (the Road Accident Fund), the premises of the

applicant (a firm of attorneys) situated at 1
st
and 2
nd
floor Elizabeth Street, Welkom and seize two hundred and sixteen
(216) client files and their contents. One hundred and nine (109)
of
those files related to supplier claims and the rest one hundred and
seven (107) related to third party claims.
[4] In
order to obtain the search and seizure warrant in relation to the
supplier claims (CAS no 427/09/2008) an affidavit by a
senior
forensic investigator at the Road Accident Fund (RAF), Raubenheimer,
as well as an affidavit by the third respondent was
used.
[5] In
his affidavit Raubenheimer stated that the applicant submitted
numerous claims to the RAF on behalf of Bongani Hospital which
claims
where paid by the RAF. He attached a schedule to his affidavit
setting out inter alia the date of the supplier service,
the claim
number and the amount claimed and paid in respect of each claim. He
further stated that he obtained statements from
Mr SD Ralile (Head of
Administration at Bongani hospital) and Mrs Knoesen who liaises with
attorneys on behalf of Bongani hospital.
He compared their
statements with the items claimed in the bills of costs submitted to
the RAF and found discrepancies. The discrepancies
related to claims
for follow up consultations that were never held and claims for
instructions to issue summons against the RAF
which instructions were
never given. Ralile and Knoesen’s statements were not attached to
Raubenheimer’s statement, although
he mentions in his statement
that their statements are attached to his.
[6] The
third respondent’s affidavit is short. She stated that she
received a complaint from Raubenheimer to the effect that
he
reasonably suspects that fraud is being committed at the applicant’s
premises; that she is reasonably satisfied that the information

provided to her showed that the person who laid the complaint is
prima
facie
qualified to do so and that the suspicion on which the complaint is
based appears to be reasonable in the circumstances. This

information was used by the first respondent to issue the warrant for
the search and seizure of the 109 files and their contents.
[7] In
the case of the third party claims (CAS no 460/09/2008) Raubenheimer
submitted an affidavit to the first respondent wherein
he referred to
a statement which he obtained from Juanita Victor, a third party, on
whose behalf the applicant lodged a claim with
the fifth respondent.
In broad strokes, Juanita Victor stated that she did not consult with
the applicant on seven occasions as
the applicant claimed in the bill
of costs submitted to and paid by the fifth respondent. She also
denied instructing the applicant
to issue summons - or to obtain a
warrant of execution – against the property of the fifth
respondent. The third respondent
submitted an affidavit that is a
mirror image of the one mentioned in paragraph 6 above. Based on
this information the first respondent
issued a search warrant for the
search and seizure of 107 third party files and their contents.
[8] On
11 November 2008 the third respondent, fourth respondent and
Raubenheimer armed with the two search warrants, with annexures

containing lists of the suspicions files, attended at the offices of
the applicant. They enquired about the files mentioned in
the
annexures to the search warrants. They were informed that most of
the files that they were looking for are kept in an archive,
which is
situated in another building diagonally across the building mentioned
in the search warrants. The applicant availed four
of its personnel
to the search party in order to assist them to seek for the files.
[9] Whilst
the search was continuing, Mr Podbielski of the applicant obtained
legal advice. Before the files could be removed he
informed the
third and the fourth respondents that the files contain privileged
and confidential information. He claimed legal
professional
privilege on behalf of his clients and offered to give the files
without the privileged documents. The offer was
refused.
[10] The
parties agreed that the third respondent will seal and remove the
files without looking at its contents pending an application
to be
brought to this court on or before 14 November 2008. The applicant
requested all the statements that were placed before
the first
respondent when he made the decision to issue the search warrants.
This request was refused. The first respondent later
availed copies
of all the information that was put at his disposal during the
applications for the search warrants to the applicant.
Issues
[11] Mr
Kemp SC on behalf of the applicant launched a multi-pronged attack on
the validity of the search and seizure warrants and
on the legality
of the actual search and seizure. He argued that the search and
seizure was not at the targeted premises;
that
there was insufficient information before the first respondent who
issued the search warrants; that the search warrants do
not provide
or cater for privilege. Mr Sithole SC, on behalf of the respondents,
was constrained to concede, after a gallant attempt
to justify the
respondents’ action, that the respondents don’t have viable
counter arguments.
Law
[12] The
third and fourth respondents purportedly acted in accorda
nce
with the provisions of section 20 and 21 of the
Criminal
Procedure Act
51 of 1977(the Act). The relevant parts of the sections read as
follows:
“
20 The State
may, in accordance with the provisions of this Chapter, seize
anything (in this Chapter referred to as an article)
–
(a) which is concerned in or is on
reasonable grounds believed to be concerned in the commission or
suspected commission of an offence
whether within the Republic or
elsewhere;
(b) which may afford evidence of the
commission or suspected commission of an offence whether within the
Republic or elsewhere;
(c) which is intended to be used or is
on reasonable grounds believed to be intended to be used in the
commission of an offence.
21 (1)
Subject
to the provisions of sections 22, 24 and 25, an article referred to
in section 20 shall be seized only in virtue of a search
warrant
issued –
(a) by a magistrate or justice,
if it appears to such magistrate or justice from information on oath
that there are reasonable grounds
for believing that any such article
is in the possession or under the control of or upon any person or
upon or at any premises
within his area of jurisdiction; or …
(2) A search
warrant issued under subsection (1) shall require a police official
to seize the article in question and shall to that
end authorise such
police official to search any person identified in the warrant, or to
enter and search any premises identified
in the warrant and to search
any person found on or at such premises.
(3)(a) ...
(b) A search
warrant may be issued on any day and shall be of force until it is
executed or is cancelled by the person who issued
it or, if such
person is not available, by a person with like authority.
(4) A police
official executing a warrant under this section or section 25 shall,
after such execution, upon demand of any person
whose rights in
respect of any search or article seized under the warrant have been
effected, hand to him a copy of the warrant.
[13] When
dealing with search and seizure warrants the point of departure is
that the search of someone’s house, business or person
and /or the
seizure of anything thereon is unlawful and unconstitutional, unless
such search and / or seizure is legally authorised.
Section 14 of
the Constitution of the RSA 1996 provides that:
“
Everyone has the
right to privacy, which includes the right not to have
(a) their
person or home searched;
(b) their
property
searched;
(c) their possessions seized; or
(d) the privacy of their
communications infringed.”
[14] A
search and seizure warrant therefore gives judicial authority to the
State to search and seize property where such act would
otherwise be
unlawful. A search and seizure warrant not only gives authority to
the state to invade the privacy of an individual
or juristic person
but also acts as a safeguard against the misuse or abuse of power by
the State. Because the powers of the person
armed with a search and
seizure warrant are circumscribed in the warrant, the courts expect
state officials to remain within the
parameters set out in the
warrant. In
Mistry
v Interim Medical and Dental Council of South Africa and Others
1998 (4) SA 1127
(CC) at paragraph [25] Sacks explained the
importance of safeguards to regulate state official’s powers in the
South African
context thus:
“
The existence of
safeguards to regulate the way in which State officials may enter the
private domains of ordinary citizens is one
of the features that
distinguish a constitutional democracy from a police State. South
African experience has been notoriously
mixed in this regard. On the
one hand there has been an admirable history of strong statutory
controls over the powers of the
police to search and seize. On the
other, when it came to
racially
discriminatory laws and security legislation, vast and oftern
unrestricted discretionary powers were conferred on officials
and
police. Generations of systematised and egregious violations of
personal privacy established norms of disrespect for citizens
tht
seeped generally into the public administration and promoted amongst
a great many officials habits and practices inconsistent
with the
standards of conduct now required by the Bill of Rights. Section 13
[of the interim Constitution; now s 14 of the Bill
of Rights]
accordingly requires us to repudiate past practices that were
repugnant to the new constitutional values, while at the
same time
re-affirming and building on those that were consistent with these
values.”
A very
high level of protection is given to the right to privacy. See
Berustein
and Others v Bester and Others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC) at paragraph
[77]
.
[15] The right to privacy
may be claimed by a juristic person. Section (4) of our
Constitution, 1996, reads as follows:
“
A juristic person is entitled to
the rights in the Bill of Rights to the extent required by the nature
of the rights and the nature
of that juristic person.”
Although
juristic persons, such as the applicant, are not “bearers of human
dignity”, they do – to a limited extent enjoy
the right to
privacy. See
Investigating
Directorate: SEO v Hyundai Motors Distributors
[2000] ZACC 12
;
2001 (1) SA 545
(CC) at paragraph
[18]
[16] In
Powell
NO and Others v Van Der Merwe NO and Others
2005 (5) SA 62
(SCA) Cameron JA, as he then was, analysed the
authorities in relation to search warrants and summarised the legal
position as
follows at paragraph [59]:
“
(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
interlligibly 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: The warrant must itself specify its
object, and must do so intelligibly and narrowly within the bounds of
the empowering
statute.
Search of Premises
[17] As
stated above, it is common cause that the search and seizure warrants
authorised the third and fourth respondents to search
the premises of
Podbielski Mhlambi Inc situated at 1
st
and 2
nd
floor Elizabeth Street Welkom. The respondents have admitted that
the correct address is 1
st
and 2
nd
floor Elizabeth Street 5 Complex, Elizabeth Street. I will for the
purpose of this judgment accept that it is the same premises.
[18] It
is common cause that the files were stored and seized at Essex
Building, Elizabeth Street which is not the same building
as that
mentioned in the warrants.
[19] The
respondents contend that they were legally authorised to search the
premises at Essex Building and to seize the files thereat
because
those offices/ storerooms were under Podbielski’s, who has
unlimited access thereto, control. He also told them where
the files
were kept. They further contend that there was no means of
determining that the sought files were stored at an office
other than
that stated in the warrants. The applicant argued that the fact that
the applicant was in control of a different building
did not give the
third and fourth respondents authorization to search those premises.
[20] The
respondent’s arguments don’t fly. They requested and got prior
authorization to search particular premises. They
may not
subsequently vary the terms of the warrants without again approaching
the judicial officer who authorised the warrants.
The fact that
Podbielski was in control of the “archive offices” or storeroom
at the other building does not assist the respondents.
Podbielski
cooperated under protest. He demanded to see the warrants and the
supporting documents. When the third and fourth
respondents refused
to give him the supporting documents he threathened to sue the RAF.
The fact that a warrant authorises the
search of premises A and a
person at those premises alleges that the items mentioned in the
search and seizure warrant are kept
at premises B does not give the
police the right to search premises B without a valid warrant.
Podbielski’s conduct, consent
or cooperation could in any event not
render an unlawfully issued warrant valid or lawful. He would in all
probability have acted
differently if he was aware of all the
information that formed the basis of the application for the
warrants. See
Beheermaatschappij
Helling I NV v Magistrate Cape Town
2007 (1) SACR 99
(C) at 120 i to 121 d.
[21] The
terms of the warrant, although broad, are clear. The relevant parts
thereof, albeit ineloquently drafted, read as follows:
“
These are
therefore to authorize you to search during the day time 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 files and their content of the
list attached as per Annexure A if found and to deal with it
in
accordance to law.”
(my
underlining).
[22] The
police were therefore only authorised to search the identified
premises. Likewise they were authorised to seize files
on or at such
(identified) premises. It therefore follows that the search at Essex
Building was unauthorised and unlawful. The
seizure of the files at
Essex Building was also unauthorised and unlawful. The third
respondent exceeded the powers granted to
her by the first
respondent. See
Bogoshi
v Van Vuuren NO and Others
[1995] ZASCA 125
;
1996 (1) SA 785
AD at 796 F – G. See also
Toich
v The Magistrate, Riversdale and Others
2007 (2) SACR 235
at 238 f – g.
[23] The
fact that the police had no means of determining that the files were
stored in another building is also of no assistance
to the
respondents. In her affidavit the third respondent alleged
that she had received a complaint from Reubenheimer wherein he stated
that he reasonably suspects that fraud is being committed
at the
applicant’s premises. She then applied for a warrant authorizing
her:
“
to enter upon
or enter any place, premises in order to search and seize all the
files and the documents in the files specified…”
The
third
respondent rushed to Court to apply for warrants without
investigating whether there are less intrusive means to obtain the

files or the relevant contents of the files from the applicant. The
third respondent knew that the applicant was an attorney’s
firm.
An enquiry at the attorney’s firm as to where their closed files
are kept would have obviated the need to apply for a
warrant couched
in such wide terms. It follows that the inquiry would have shed
light as to where the applicant’s closed files
are kept.
Requirements for valid
warrant
[24] The requirements for
a valid warrant under section 20 read with section 21 (1)(a) of the
Act are:
1. The information must
be under oath.
2. It must appear to the
magistrate from such information that there are reasonable grounds
for believing that the articles to which
the warrant relates are
articles referred to in section 20.
3. It
must appear to the magistrate from such information that there are
reasonable grounds for believing that the articles are
in the
possession or under the control of or upon any person or upon or at
any premises within his area of jurisdiction. See
Mandela
and Others v Minister of Safety and Security and Another
1995
(2) SACR 397
(W) at 399 h – j. I deal seriatim with the
requirements.
[25]
Information
under oath
There is no problem with
this requirement. The magistrate had information under oath in the
form of the affidavits of the third
respondents and Raubenheimer.
[26]
Reasonable
grounds for believing that the files may afford evidence of the
commission or suspected commission of an offence
.
The
first respondent filed reasons for issuing the two search and seizure
warrants. The reasons are terse
but telling. It reads as follows:
“
Ingevolge
Artikel 21 (1)(a) van die Strafproseswet 51 van 1977 het ek my
regterlike diskressie uitgeoefen aangesien daar aan die
gronde vir
die uitreiking van so lasbriewe voldoen is
.
Uit die beëdigde verklarings aan my voorgelê blyk dit dat
daar op dokumente beslag gelê kan word wat tot bewys
van strek
van die pleging of vermeende pleging van ‘n misdryf – vergelyk
art 20 (b) van die gemelde strafproseswet.”
Hierdie handeling
van my om die lasbriewe te magtig is slegs ‘n vooraf proses tot die
ondersoek. Die finale besluit berus by
die verhoorhof of hierdie
getuienis toegelaat sal word al dan nie. Al blyk dit dat hierdie
getuienis op ‘n ongrondwetlike wyse
verkry is het die verhoorhof
steeds die bevoegheid om die getuienis ingevolge Artikel 35 (5) van
die Grondwet toe te laat
.”
[27] I
hasten to mention that the
bona
fides
of the first respondent was never in doubt. I accept that the first
respondent exercised his discretion in issuing the warrants.
The
question is whether he exercised such discretion judiciously after
considering all the facts placed before him. In my view
the
information placed before the first respondent laid no basis for the
believe or conclusion that all those files may afford
evidence of the
commission or suspected commission of an offence.
[28] In
relation to the third party files, Raubenheimer only refers to one
file or complainant. The only information before the
first
respondent was Reubenheimer’s assertion that Juanita
Victor
attested to an affidavit in which she alleged that she did not
consult applicant on seven occasions; that she never gave
the
applicant instructions to issue summons against the RAF or to obtain
a warrant of execution against the property of the RAF.
[29] There
is no link between Juanita Victor’s affidavit and the other files.
There is also no link between her individual claim
against the RAF
and the other files. There is no indication whatsoever in
Raubenheimer’s affidavit that there is a link between
Juanita
Victor’s case and the other files. There is no indication in
Raubenheimer’s affidavit that there was a practice at
the applicant
to submit fraudulent claims to the RAF. Raubenheimer does not even
state why the contents of the other files will
be relevant to any
investigation conducted by the fifth respondent. At best,
Raubenheimer’s affidavit only shows that the information
in the
file of Juanita Victor v RAF may afford evidence of the commission or
suspected commission of an offence. The same can’t
be said about
the rest of the third party files.
[30] There
was also in my view insufficient information before the first
respondent to issue a warrant to seize all the files mentioned
in the
supplier claims matter. The affidavit of Raubenheimer only relates
to supplier claims on behalf of Bongani Hospital. The
search and
seizure warrant however relates to supplier claims on behalf of
Goldfield West Hospital, Goldfields Regional Hospital,
Free State
Provincial Administration, Goldfields Health Services, Anglogold
Health Service (Pty) Ltd and Ernest Oppenheimer.
[31] There
is just no link shown, in the information before the first
respondent, between Bongani Hospital and the other Hospitals

mentioned in the preceding paragraph.
[32] It is clear that the
first respondent did not give reasonable consideration to the facts
before him. In any event he had hopelessly
scant information to
exercise his discretion in the manner in which he did.
[33]
It
must appear to the magistrate from the information under oath that an
article or articles which may afford evidence of the commission
or
suspected commission of an offence is under the control of or upon
any person or upon or at any premises…
[34] Mr
Kemp argued that reasonable grounds for believing in section 21 (1)
(a) of the Act, means the belief must be objectively
rational. He
referred me to
National
Director of Public Prosecutions v Stander and Others
2008 (1) SACR 116
(ECD) at paragraph [13] where Plasket J said the
following:
“
It is clear from
the cases that reason to believe that a state of affairs exists
involves an objectively justifiable belief –
‘a belief based on
reason
’
in which a ‘factual basis for the reason’ exists. There must, in
other words, be ‘grounds, or facts, which give rise
to, or form the
basis of, the belief’ and they must be reasonable grounds. That
the belief must be objectively rational (even
I venture to suggest,
when more subjective language is used in a statute) is now a
constitutional imperative, flowing from the
founding value of the
rule of law.”
[35] I
am of the view that the
National
Director of Public Prosecution v Stander
supra
case is not authority for the interpretation of “reasonable grounds
for believing” as it appears in section 21 (1)(a) of the
Act.
[36] In
Stander
supra
the terms “reasonable grounds to believe” was interpreted with
regard to the specific context in which it is used in
section 38
(2)
of the
Prevention
of Organised Crime Act
121 of 1998
. The relevant part of
section 38
(2) reads as follows:
“
The High Court shall make an order
referred to in subsection (1) if there are reasonable grounds to
believe that the property concerned…”
Whereas
section 21
(1)(a) of the Act reads that:
“…
if
it
appears to
such
magistrate
…there
are reasonable grounds for believing…”
(my underlining).
The
two sections are clearly
couched
in different terms.
Section 21(1)(a)
refers to the subjective
opinion of the magistrate.
[37] There
are numerous cases in which it was stated that in
section 21(1)(a)
the grounds are those which in the subjective opinion of the
magistrate are reasonable. See
Mandela
and Others v Minister of Safety and Security
supra
at 404 at g – I where Streicher J, as he then was said the
following:
“
The ‘reasonable
grounds for believing’ in
s 21
(1)(a) are not grounds measuring up
to an objective standard, but grounds which in the subjective opinion
of the magistrate are
reasonable. (See Divisional Commissioner of SA
Police, Witwatersrand Area, and Others v SA Associated Newspapers Ltd
and Another
1966 (2) SA 503
(A) at 511 G – H; Ndabeni v Minister of
Law and Order and Another
1984 (3) SA 500
(D) at 513 C – D;
and Control Magistrate, Durban v Azanian Peoples Organisation
1986
(3) SA 394
(A) at 400F.) The statement to the contrary in Highstead
Entertainment (Pty) Ltd t/a ‘The Club’ v Minister of Law and Oder
and Others
1994 (1) SA 387
(C) at 392I – 393A is in my view not
correct and not borne out by the authority relied upon, that is the
Ndabeni case supra.”
I
agree with this interpretation.
The
different interpretations have
also
been recognised by the Constitutional Court. See
Thint
(PTY) LTD v NDPP
;
Zuma
v NDPP
2008 (12) BCLR 1197
(CC) paragraph [92] footnote 65.
[38] I
may therefore not interfere with the first respondent’s decision
merely because I considered it to be wrong. I may however
interfere
therewith if I find that the first respondent did not apply his mind
properly to the matter. See
Mandela
supra
404 i to 105 a.
[39] The first respondent
was supposed to apply his mind to whether the files may afford
evidence of the commission or suspected
commission of a crime. He
had to decide whether it appeared to him that there were reasonable
grounds for believing that the files
may afford evidence and whether
it appeared to him that the files were kept upon the premises of the
applicant.
[40] The
first respondent seems to think that he does not have to apply his
mind before issuing warrants because it is a preliminary
step in the
investigation. According to him, he may prejudice an accused or
suspect at this stage because the admissibility of
the
unconstitutionally obtained evidence will be determined later by the
trial court. It might be so that the admissibility of
the evidence
will be dealt with later, but that does not mean that the first
respondent should abdicate his responsibility.
[41]
The
first respondent’s attitude / approach displays an unfortunate lack
of appreciation of the important role that he should play
in
regulating and circumscribing police power in order to safeguard
person’s right to privacy. He unashamedly acted as a rubberstamp.

The authorization of the warrants was, to him, a formality that had
to be complied with at the request or rather behest of the
police.
He did not see the need to balance the right to privacy of the
applicant and the right of the police to obtain evidence
in order to
bring criminals or suspected criminals to book.
[42]
The
information placed before him in the third party matters related to
only one incident of an allegation of fraud or an incorrect
bill of
costs. There was no indication that the other files contained
evidence that could substantiate the allegation of fraud.
There was
also no information before him that the other files contained
evidence of any offence being committed by the applicant.
[43] Likewise
there was no information before him that the supplier claim files in
relation to the hospitals other than Bongani
Hospital contained or
may contain evidence of the commission or suspected commission of an
offence. In fact no mention is made
of the other hospitals in
Raubenheimer’s affidavit. Raubenheimer did not even attach the
statements of the personnel at Bongani
Hospital which was in his
possession or in the possession of members of the South African
Police Service.
[44] The
warrants are also too broad. The first respondent knew that the
applicant is a firm of attorneys. He ought to have realised
or
foreseen that those files might contain privileged or confidential
information. Having read Raubenheimer’s statement he ought
to have
realised that the only reason why the files were sought was to verify
whether consultations were held on the dates reflected
on the bill of
costs and whether there were instructions given to issue summons and
to issue warrants of execution against the
property of the fifth
respondent. The first respondent could then have tailored the
warrants to such an extent that they do not
include a seizure of the
whole contents of the files but only the relevant information which
might not even be privileged information.
If the warrants were
tailored to fit the particular circumstances the inference that the
first respondent did not apply his mind
to the matter would indeed be
very difficult to draw.
[45] It
is clear that the first respondent did not apply his mind properly
before issuing the warrants. He also did not apply his
mind to the
terms of the warrants in order to tailor them in accordance with the
information before him. The first respondent
did not adhere to the
admonition in
Mohammed
v National Director of Public Prosecutions and Others
[2005] ZAGPHC 90
;
2006 (1) SACR 495
(W) at 507 h that:
“
A warrant should be tailored for
the occasion, not simply taken from stock.”
In my view both warrants
ought to be set aside.
Costs
[4
6] The
applicants requested me to make a punitive cost order. If one has
regard to the manner in which the third respondent and
Raubenheimer
went about to obtain these warrants, it is clear that they had scant
regard for the applicant’s right to privacy.
They deliberately put
insufficient information before the first respondent. The third
respondent requested a warrant to search
any place or premises for
the files being well aware that no proper case has been made out for
such a warrant. Thankfully, it
was not granted in those terms. The
third respondent and Raubenheimer refused to give Podbielski the
affidavits which were used
in support of the application for the
warrants. When Podbielski objected to the search and seizure
operation his remonstrations
were brushed aside and the third
respondent proceeded to seize the files upon different premises. She
knew full well that she
was exceeding the authorization stipulated in
the warrants. They ought to have foreseen that such a search and
seizure at an attorney’s
firm, in a relatively small place such as
Welkom, might do great damage to the applicant’s reputation.
[47] This
is indeed a case wherein I must show my disapproval of the strong-arm
tactics employed by the third respondent and Raubenheimer.
The most
appropriate way to do so would be by way of a punitive costs order.
[48] The
applicant employed two senior counsel and one junior. The applicant
requested me to order that the costs should include
the costs
occasioned by the employ of two senior counsel and a junior. In my
view this matter was not as complicated, intricate
or involved as to
employ two senior counsel. The respondents also employed senior
counsel. There is therefore no reason why the
costs should not
include the costs of junior counsel and one senior counsel. No costs
order was sought against the first respondent.
Costs of 11 December
2008
[4
9] I
now deal with the costs of 11 December 2008. In the order mentioned
in paragraph one above I ordered the respondents to file
the record
or documents that form the subject of this application on or before
16:00 on 21 November 2008.
[
50] The
record of the proceedings was not submitted by the respondents on 21
November 2008. On 9 December 2008 the applicant delivered
a Rule 35
(12) notice. It is only in response to this notice that the
statement of Juanita Victor, which according to the respondents
was
part of the information before the first respondent, was given to the
applicants. The statements of Ralile and Knoesen was
also requested
and not given, because the respondents alleged that those statements
were not before the first respondent. Likewise
the statements of the
other “complainants” referred to in Raubenheimer’s opposing
affidavit were not disclosed because those
statements were not before
the first respondent.
[51] The
postponement of this matter was necessitated by respondents’ non
disclosure of information or by them disclosing relevant
information
at a late stage. The wasted costs occasioned by the postponement on
11 December 2008 should also be borne by the respondents.
Ruling
In my view the first
respondent should not have issued the warrants. His decision ought
to be set aside. All the files seized
as a result of those warrants
ought to be returned to the applicant.
Order
[5
2]
I
accordingly make the following order:
1. Paragraphs
1 to 3.2 of the rule nisi are confirmed.
2. The
second to the fifth respondents are ordered to pay the applicant’s
costs, jointly and severally the one paying the other
to be absolved,
including the costs occasioned by the postponement of this matter on
11 December 2008, on an attorney and client
scale. Such costs to be
limited to the costs occasioned by the employ of junior counsel and
one senior counsel.
___
____________
C.J.
MUSI, J
On
behalf of the
Applicant: Adv. Kemp
SC, Adv A.J. R. Van Rhyn SC and Adv N. Snellenberg
Instructed
by
:
Honey
Attorneys BLOEMFONTEIN
On
behalf of the
Respondents: Adv.
M.N.S. Sithole SC
Instructed
by:
State
Attorney
BLOEMFONTEIN
/ms