Khosana and Another v Minister of Safety and Security NO and Another (2512/08) [2009] ZAFSHC 33 (19 March 2009)

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[2009] ZAFSHC 33
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Khosana and Another v Minister of Safety and Security NO and Another (2512/08) [2009] ZAFSHC 33 (19 March 2009)

IN
THE HIGH COURT OF SOUTH AFRICA
(FREE
STATE PROVINCIAL DIVISION)
Case No. : 2512/08
In
the
matter
between:-
FIKIZOLO
NORMAN KHOSANA
First
Applicant
F
N KHOSANA TRANSPORT CC
Second
Applicant
and
THE
MINISTER OF SAFETY AND
First
Respondent
SECURITY N.O.
THE
DIRECTOR OF PUBLIC
Second
Respondent
PROSECUTIONS
N.O. FREE STATE
PROVINCIAL
DIVISION
_____________________________________________________
CORAM:
H.M.
MUSI, JP
_____________________________________________________
HEARD
ON:
4
DECEMBER 2008
_____________________________________________________
DELIVERED
ON:
19
MARCH 2009
_____________________________________________________
JUDGMENT
_____________________________________________________
H.M.
MUSI, JP
Introduction
[1] This
is an application for the setting aside of the warrants that were
issued by a magistrate at Welkom on 12 February 2007
authorising the
police to search for and seize certain articles at various premises
belonging to the applicant
s
and for the return of such articles. It is necessary to set out the
factual background to the matter. I should, however, at
this stage
mention that the first respondent is opposing the application on
behalf of both respondents.
Factual
background
[2] The
application for the warrants arose from a police investigation into
the alleged criminal activities of the first applicant,
his brother,
Louis Khosana, and one Anthony Math. These three men were suspected
of being members of a syndicate that
was
engaged in unlawful dealing in unwrought gold and related illicit
transactions. As part of the investigations, the police arranged
for
a controlled sale of unwrought gold by undercover police operatives.
The operation was conducted on 9 February 2007. A report
of such
operation and the sworn statements of the police operatives who took
part in it are annexed to the papers. Following such
trap, the first
applicant, Louis Khosana and Anthony Math (the accused) were arrested
and charged in the magistrate’s court at
Welkom. Their case is
pending before such court. It is common cause that it was remanded
further to enable the applicants to
launch the instant application.
The warrants in question were issued prior to the arrest and
arraignment of the accused.
[3] It
should be noted that the second applicant is a close corporation,
which owns some of the articles that were seized during
the execution
of the warrants. The first applicant is its member. In annexure “B”
to the warrants, the second applicant is
referred to simply as F N
Khosana Transport and Plant Hire. It appears that the police were
not aware of its status as a close
corporation and assumed that it
was just a business through which the first applicant traded. It is,
however, common cause that
it, and not the first applicant, owns the
articles that were seized on its premises. It is important also to
note that the second
applicant is not an accused in the pending
criminal case.
The warrants
[4] Altogether
there were six warrants issued. Each warrant authorised the search
for
and
seizure of articles at the premises specified therein. In the papers
and oral argument the warrants were described with reference
to the
address to which each related. They are as follows:
4.1 13
Aalwyn
Street, Jim Fouche Park, Welkom. This is the residential address of
the first applicant.
4.2
Flat
No. 1, Hagoth Flats, 152 Haarlem Street, Dagbreek, Welkom.
4.3 Flat
No. 4, Hagoth Flats, 152 Haarlem Street, Dagbreek, Welkom. The
Hagoth Flats are owned by the first applicant.
4.4 31
Keerom Street, Voorspoed, Welkom. These are the business premises of
the second applicant.
The
warrants referred to in the papers as Rosalind Street and Thabong
warrants have been lost. No search and seizure operations
were
conducted at the premises to which they relate. The respondents have
indicated that the police do not intend following on
these warrants
and for that reason there was no need to refer to them anymore.
Indeed they are irrelevant for purposes of this
judgment.
[5] It
is worth noting that the warrants are identical, differing only in
respect of the premises to which each is related. The
offences in
which the articles sought to be seized, are alleged to have been
involved, are the same for all the warrants and the
alleged
perpetrator is the first applicant, save in respect of the warrant
relating to Flat No. 1, Hagoth Flats, where one K.A.
Tom is cited in
the alternative. All the warrants incorporate annexure “B”,
which lists and identifies the articles that are
alleged to be under
the control of persons or at the premises to be searched.
[6] It
is important to note, firstly, that annexure “B” does not contain
a separate list of articles pertaining to a specific
warrant or
premises but is a composite list of all the articles that are to be
searched for and seized. As it stands, it means
that all these
articles would be on each of the premises to be searched. The list
contains eight items. Paragraphs 1.1 and 1.2
comprise a variety of
books, records and other documents as well as computer related items
like computer hardware, software, hard
drive, network servers etc.
The documents include financial statements, auditors’ reports, tax
returns and the like. They clearly
relate to the running of a
business. The list also contains under paragraph 1.7 particulars of
three motor vehicles. It is also
noteworthy that one set of the same
affidavits was used to support the application for each of the
warrants.
[7] In order to give a
complete picture of what the warrants look like, I reproduce
hereunder the Aalwyn Street warrant.
“
WARRANT
FOR SEARCH AND SEIZURE
WARRANT FOR SEARCH AND SEIZURE IN
TERMS OF THE PROVISIONS OF SECTION 21 READ WITH SECTION 20 OF THE
CRIMINAL PROCEDURE ACT, ACT
51 OF 1977
TO
:
Capt
Flynn
service number
04299337
and members of the South African Police Service identified in
ANNEXURE
“A”
hereto.
WHEREAS
it
appears to me from information under oath that there are reasonable
grounds for believing that there are within the Magisterial
District
of
Welkom
,
certain articles as listed and identified in
ANNEXURE
“B”
hereto under the control of persons or at premises within the
Magisterial Court’s area of jurisdiction, which are concerned in
or
is on reasonable grounds believed to be concerned in the commission
or suspected commission of the offence(s) of:
Dealing in unwrought Precious
Metal;
Contraventions of sections 2, of
the Prevention of Organised Crime Act, Act 121 of 1998, (POCA)
Theft
Kidnapping
(“Menseroof”)
(hereinafter
referred to as the specified offences
)
by
Norman
Khosana of 13 Aalwyn street, Jim Fouche Park, Welkom,
within
the Republic of South Africa, and which may afford evidence of the
commission or suspected commission of the specified offences
by
Norman
Khosana
AND WHEREAS
it appears to me from the said information under oath that there are
reasonable grounds of believing that the articles as per
ANNEXURE
“B”
hereto are located, kept or stores at the premises listed herein
under,
Viz
:
13 Aalwyn Street, Jim Fouche Park,
Welkom.
Your are hereby
authorised, at any time during the
day
or
night
,
to enter the above-mentioned premises and to search that premises
and/or person, and/or vehicle found on the said premises for
the
articles mentioned in
Annexure
“B”
hereto and to seize such articles found and to deal with such
articles in accordance with the provisions of Section 30 of the
Criminal Procedure Act, Act 51 of 1977.
SIGNED at ___________ on this the ____
day of February 2007
_____________________
MAGISTRATE:
WELKOM”
Preliminary
objections
[
8] In
his heads of argument Mr. Madlanga, the respondents’ senior
counsel, raised two points
in
linime
.
He persisted therewith in oral argument. I shall deal with each of
these briefly.
[9]
The
first point is that the instant application is an impermissible
preliminary litigation whose only purpose is to circumvent
the
application of section 35(5) of the Constitution. Counsel cited
THINT
(PTY) LTD v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS;
ZUMA AND ANOTHER v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
AND
OTHERS
2008 (12) BCLR 1197
(CC), at 1223 where Langa CJ expressed himself as
follows:
“[65] I
nevertheless do agree with the prosecution that this Court should
discourage preliminary litigation that appears to have
no purpose
other than to circumvent the application of section 35(5). Allowing
such litigation will often place prosecutors between
a rock and a
hard place. They must, on the one hand, resist preliminary
challenges to their investigations and to the institution
of
proceedings against accused persons; on the other hand, they are
simultaneously obliged to ensure the prompt commencement of
trials.
Generally disallowing such litigation would ensure that the trial
court decides the pertinent issues, which it is best
placed to do,
and would ensure that trials start sooner rather than later.”
Further
on
the
Chief Justice stated:
“But
in the ordinary course of events, and where the purpose of the
litigation appears merely to be the avoidance of the application
of
section 35(5) or the delay of criminal proceedings, all courts should
not entertain it. The trial court would then step in
and consider
together the pertinent interests of all concerned.”
But
Mr. Madlanga acknowledged that the Constitutional Court also made it
clear that this is not a hard and fast rule.
Langa
CJ put it as follows:
“The
courts’ doors should never be completely closed to litigants. If,
for instance, a warrant is clearly unlawful, the victim
should be
able to have it set aside promptly. If the trial is only likely to
commence far in the future, the victim should be
able to engage in
preliminary litigation to enforce his or her fundamental rights.”
[10]
Mr.
Madlanga argued that when the Constitutional Court says that in the
course of ordinary events the courts should not entertain
such
applications, it meant to convey that exceptional circumstances must
exist entitling a litigant to approach the court by way
of
preliminary litigation. He submitted that no such exceptional
circumstances exist in this case and that I should, therefore,
refuse
to entertain the application.
[11] In
response, Mr. Kemp, for the applicants, pointed out that in the first
place, the parties had been agreed that it would be
appropriate that
the validity of the warrants be determined in a separate hearing and
the criminal case had been remanded by consent
precisely to allow for
the launch of the instant application. Secondly, he contended that
the instant case was on the facts distinguishable
from
THINT;
ZUMA
.
He pointed out that the second applicant’s articles had been
seized and yet it was no party to the criminal trial nor was there

any basis for linking the articles seized from its premises to the
crimes forming the subject matter of the criminal case. He
contended
that in the premises the second applicant was perfectly within its
right to bring this application. Mr. Kemp submitted
that it would
make no sense to separate the case of the second applicant from that
of the first applicant.
In
regard to the latter point, Mr. Madlanga seemed to concede as much
when he said that there was a convergence of facts linking
the two
applicants, which made it impossible to separate their cases. Mr.
Kemp also pointed out that some personal articles of
the first
applicant had been seized which had no relevance whatsoever to the
charges he is facing.
[12] I
agree that the second applicant, in particular, was entitled to
launch the instant application. It is important to note
that at the
start of the hearing, the respondents tendered the return of
virtually all the articles seized from its premises at
31 Keerom
Street, Welkom. This was a clear admission by the respondents that
there had been no basis for seizing such articles.
It is also common
cause that some items were seized from the first applicant’s
residence which simply could have had no link
with the criminal
charges. And there is indeed a convergence of facts which justify
the challenge to the lawfulness of the warrants
being brought in one
application. In my view, this is an appropriate case where the
dictum in
THINT;
ZUMA
to the effect that if a warrant is clearly unlawful the victim should
be able to have it set aside promptly should apply.
[13] The
second point
in
limine
relates to
locus
standi
,
where it was contended that in regard to the Hagoth Flats warrants,
the applicants had no
locus
standi
.
The thrust of Mr. Madlanga’s argument was that the only right
whose violation could found a basis for the instant application
is
the right to privacy and this applies only in respect of the first
applicant, since the second applicant enjoys no such right.
Mr.
Madlanga said that the only other possible basis on which the
applicants could have approached the court with the instant

application, would be the alleged violation of the right to a fair
trial but that this would apply only to the first applicant
since the
second applicant faces no criminal trial. Counsel argued that the
first applicant has not laid any basis for a complaint
based on the
right to a fair trial. At any rate, that is the sort of complaint
that can only be addressed by the trial court in
terms of section
35(5) of the Constitution, so it was contended.
[14]
In
regard to the right to privacy, Mr. Madlanga argued that since the
first applicant did not reside in those premises, his rights
to
privacy and dignity were not affected by the search and seizure
operations and he, therefore, had no standing to bring the instant

application. Mr. Madlanga contended that it was only the privacy of
the people who resided in the Hagoth Flats (the first applicant’s

tenants) whose rights to privacy could have been affected. As for
the second applicant, it was contended that it had nothing to
do with
the Hagoth Flats as it was neither a tenant there nor did it have any
proprietary interests in those premises.
[15] On
the
locus
standi
issue, Mr. Kemp pointed out that the first applicant was the owner of
the Hagoth Flats and that these were leased to various tenants,
who
paid rental to him. Counsel submitted that the first applicant was
entitled to protect his property against unlawful invasion
and to
provide his tenants with peaceful, undisturbed occupation. He said
that this was a sufficient legal interest to give the
first applicant
locus
standi
.
Counsel cited
JACOBS
EN 'N ANDER v WAKS EN ANDERE
[1991] ZASCA 152
;
1992 (1) SA 521
(A).
[16] I
am not persuaded that the first applicant had no
locus
in respect of the search and seizure at the Hagoth Flats. Even
putting aside the fact that the first applicant has a right and

indeed a duty to protect his property against unlawful invasions as
well as a duty to provide his tenants with peaceful occupation,
and
focussing only on his rights to privacy and dignity, if his property
is raided by the police alleging that the owner is involved
in
criminal activities and that the premises are being used for such
activities, surely that would impinge on the owner’s dignity

notwithstanding that he does not reside thereon. That becomes even
more so when the target of the search and seizure is the owner

himself as is the case
in
casu
.
At any rate, an unlawful invasion of a person’s private property
is a violation of his privacy. Section 14 of the Constitution

provides as follows:
“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.”
[1
7] Both
points
in
limine
stand to be rejected. A further query was raised relating to the
non-joinder of the magistrate who issued the warrants. The point
was
not seriously pressed in argument. At any rate, the application has
been brought to the attention of the magistrate and she
has filed an
affidavit wherein she responds to the allegations that she did not
apply her mind to the issues. Nothing turns on
this point.
The
applicable
statutory provisions
[1
8] A
brief outline of the statutory provisions regulating the issuing of
search and seizure warrants will facilitate the consideration
of the
merits of this matter. For present purposes, the relevant provisions
are sections 20 and 21 of the Criminal Procedure Act,
51 of 1977,
(the
Criminal Procedure Act). Section
20 stipulates which article
may be seized under authority of a warrant. It is an article which
is “concerned in or is on reasonable
grounds believed to be
concerned in the commission or suspected commission of an offence”
or an article “which may afford evidence
of the commission or
suspected commission of an offence” or “which is intended to be
used or is on reasonable grounds believed
to be intended to be used
in the commission of an offence”.
Section 21
sets out the
circumstances that must be present for a warrant to be authorised.
Subsection (a) thereof stipulates that information
under oath must be
put before the issuing magistrate which must disclose reasonable
grounds for believing that the article is in
the possession or under
the control of or upon any person or upon or at premises within his
area of jurisdiction.
[19] The
provisions of
section 20
and
21
of the
Criminal Procedure Act create
two jurisdictional facts that must exist before a search warrant can
be issued. They are captured in
TOICH
v THE MAGISTRATE, RIVERSDALE AND OTHERS
2007 (2) SACR 235
(CPD) at 242e as follows:
“Before
issuing a search warrant in terms of
ss 20
and
21
of the
Criminal
Procedure Act, the
magistrate or justice of the peace concerned must
be satisfied by information on oath, not only that there are
reasonable grounds
for believing that the article to be searched for
and seized is in the possession or under the control of or upon any
specified
person or is upon or at any specified premises within his
area of jurisdiction
(s 21(1))
, but also that the article to be
searched for and seized is an article such as is referred to in
s
20
;”
It
stands to reason that a warrant that has been issued where any or
both of these jurisdictional facts were not present will be
invalid.
The matter was put as follows in
THINT
(PTY) LTD v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS;
ZUMA AND ANOTHER v NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
AND
OTHERS
,
supra
at 1232 par. [92]:
“
When considering
whether a warrant should be set aside, therefore, a court will
determine, first, whether on the record the objective
jurisdictional
facts were present. If they were not, then a court will set aside
the search warrant.
”
The final point to be
made with regard to
section 21
is that both the person in possession
of the article and the premises upon which the article is supposed to
be, must be identified
in the warrant.
Grounds of attack
[
20] The
first ground upon which the lawfulness of the warrants was attacked,
was that the information that was put before the issuing
magistrate
did not disclose reasonable grounds for believing that the articles
were in the possession of the persons identified
in the warrant or at
the places identified in the warrants. The basis of this contention
was the averment made by the applicants
in their founding affidavit
that only the primary affidavit of Detective Sergeant A.D.O. van
Blerk was before the magistrate when
she issued the warrants. This
affidavit refers to and relies on the affidavits of police officers
who were involved in the controlled
sale of gold (trap) to the first
applicant and his co-accused in the pending criminal case. It was
alleged that these affidavits
were not annexed to Van Blerk’s
affidavit and that in the absence thereof there was no evidence
justifying the issuing of the
warrants. In their answering
affidavit, the respondents disputed the notion that the supporting
affidavits were not annexed to
Van Blerk’s affidavit. The
magistrate concerned has also filed an affidavit to the effect that
all the documents referred to
were before her. And a full
explanation was also given by the police and a member of the
prosecuting authority why these annexures
would not have been part of
the papers that the applicants’ attorneys perused at the
Magistrate’s Court in Welkom. Faced with
the uncontested version
of the respondents, the applicants relented and abandoned the first
ground of attack.
[21] The
other ground upon which the lawfulness of the warrants was challenged
is that, in relation to most of the articles that
were to be seized,
no reasonable grounds existed for believing that they were concerned
in the commission or suspected commission
of the offences set out in
the warrants. The challenge under this ground of attack implicates
both the issue of unlawfulness and
overbreath. In my view, the
attack is well founded and I deal with its merits right away.
[22] The
articles that are implicated are, firstly, those that were seized
from the trade premises of the second applicant and whose
return has
been tendered (items 1.1 and 1.2 of annexure “B”). Quite clearly
there was no basis for believing that these articles
were concerned
in the commission or suspected commission of the relevant crimes.
Furthermore, there was no averment whatsoever
that these articles may
afford evidence of the commission or suspected commission of an
offence or that they were intended to be
used or were on reasonable
grounds believed to be intended to be used in the commission of any
offence.
[23] The
other articles that are implicated in the ground of attack under
consideration are those listed in par. 1.7 of annexure
“B”
comprising motor vehicles. The question of whether these vehicles
could be said to have been concerned in the commission
or suspected
commission of the relevant offences generated a vigorous debate in
oral argument. The arguments centred on the interpretation
of the
phrase “concerned in” the commission or suspected commission of
an offence. Mr. Kemp relied on the interpretation given
to the
phrase “instrumentality of an offence” appearing in section 38(2)
of the Prevention of Organised Crime Act, 121 of 1998,
(POCA) in
various reported cases. Mr. Madlanga, on the other hand, contended
that it is not safe to rely on such an interpretation
and said that
the phrase as appears in
section 20
of the
Criminal Procedure Act has
a much broader connotation.
[24]
In
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS v R O COOK PROPERTIES (PTY) LTD;
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v 37 GILLESPIE
STREET DURBAN
(PTY) LTD AND ANOTHER; NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v
SEEVNARAYAN
2004 (2) SACR 208
(SCA) it was pointed out that
section 1
of POCA
defines “instrumentality of an offence” as any property “which
is concerned in the commission or suspected commission
of an
offence”. The court expressed itself as follows at p. 237 par.
[58]:
“As
we showed earlier, the Act's definition of 'instrumentality' goes
deliberately wider than the 'means' by which an offence
is committed.
It embraces property 'concerned in' the offence. The question is thus
not whether the fraud was committed 'by means
of' the investments,
but whether the money invested was 'concerned in the commission' of
the fraud on either Sanlam or the revenue
services within the
intendment of the statute.”
And further on at par.
[59]:
“
As we found
earlier (para [32]), the property must play a part, in a reasonably
direct sense, in the acts that constitute the actual
commission of
the offence.”
See
also
S
v BISSESSUE
1980 (1) SA 228
(NPD) at 230A – D.
[25] The question is
whether it can be said that the motor vehicles played a part in a
reasonably direct sense in the commission
of the relevant offences.
In order to resolve this question, it is necessary to give a brief
outline of the accounts of the police
operatives who were involved in
the trapping operation of 9 February 2007.
The
e
vidence
[2
6] The
information that was put before the magistrate in support of the
application for the warrants is contained in the affidavits
filed by
the police operatives who were involved in the trapping exercise and
is briefly set out hereunder. Two policemen and
their informer were
involved. The informer had arranged to meet the accused Anthony at a
filling station in Welkom. There Anthony
arrived in the company of
the accused Louis in a white Corsa bakkie. The group then drove to
31 Keerom Street, the premises of
the second applicant. After a
brief discussion the police agents produced the unwrought gold
earmarked for the trap. Louis then
suggested that the gold should be
tested and the group then left for 152 Haarlem Street, where the
testing was to be done in one
of the garages at the Hagoth Flats.
The group used the informer’s motor vehicle to get there. The
Corsa bakkie had apparently
been left at 31 Keerom Street and it did
not feature any further.
[27] The
second vehicle that featured is the maroon Nissan Hardbody
registration CZX 992 FS. After the testing of the gold, the
group
retired to Louis’ house that the police referred to as Flat No. 1.
This is in fact an outbuilding which is situated next
to the garages
on the ground floor of the Hagoth Flats. Whilst there, a maroon
Nissan Hardbody vehicle arrived driven by the first
applicant. He
allegedly went straight to Flat No. 4, where the group subsequently
joined him. It is here that the gold’s weight
was determined and
the purchase price fixed and paid to the agents. Thereafter the
first applicant left with the gold. I may
add that he is said to
have arrived there with the cash that was used to buy the gold. That
is the only occasion that the maroon
Nissan Hardbody featured.
[28] The
next vehicle to feature is the black SLK Mercedes Benz AMG. It is
said that the agents had by mistake been paid more money
for the gold
than was agreed upon (R8 000,00 instead of R4 200,00). The
overpayment was discovered after the agents had left and
the first
applicant and his brother, Louis, then drove around in this black
Mercedes looking for the agents. The brothers came
across the police
informer and allegedly kidnapped him when he could not produce the
overpayment. However, the informer was not
transported in the black
Mercedes Benz. Instead, Louis got into his vehicle and instructed
him where to go. The policemen who
had taken the money were
ultimately contacted and they returned the amount by which they had
been overpaid.
[29]
In
their answering affidavit the respondents referred to another
trapping exercise that was conducted on 13 February 2007 in which
the
white Corsa bakkie again featured. But again its driver, Louis,
simply parked it and joined the operatives in their vehicle.
[
30] It
has to be borne in mind that the matter stand to be decided upon the
information that was placed before the magistrate and
not information
that was obtained subsequent to the issuing of the warrants. The
question is, on the basis of the above version
of the police agents,
can it be said that the requirements of
section 20(a)
have been met?
Can it be said that there were reasonable grounds for believing that
these motor vehicles were concerned in the
commission or suspected
commission of an offence, bearing in mind the interpretation of the
latter phrase in the reported judgments
referred to above?
[31] I
deal first with the case of the black Mercedes Benz. It is alleged
to have been concerned in the offence of kidnapping.
But all that
the information discloses is that the first applicant used it to look
for the agents in order to retrieve the money
mistakenly paid to them
and no more. It was not used to convey the informer and not even to
escort his vehicle after he was allegedly
kidnapped. This is because
the first applicant had left the informer and Louis and drove around
in order to look for the policemen
who had the cash. In my view, it
will be stretching logic too far to say that the black Mercedes Benz
was concerned in the offence
of kidnapping.
[32] The
white Corsa bakkie was used by Louis and Anthony to go to the filling
station and from there to 31 Keerom Street where
it was left. The
actual dealing in unwrought gold was allegedly conducted at the
Hagoth Flats and the Corsa was not even on that
scene. Nor was it
used to transport the group thereto. In my judgment, it played no
role in the commission of that offence.
The
maroon Nissan Hardbody bakkie stands on a different footing. The
information shows that the first applicant was conveying
with it the
cash that was used to buy the unwrought gold and after the sale he
used it to convey the unwrought gold away from the
scene. In my
view, this information discloses reasonable grounds for believing
that it was concerned in the commission of the
offence of dealing in
unwrought precious metals.
Other
art
icles
[
33] I
deal briefly with the items listed under 1.6 of annexure “B”, to
wit, cellphones. In their answering affidavit the respondents
say
that these articles were not seized in terms of the warrants but that
they were seized during the arrests of the suspects in
terms of
section 23(1)(a)
of the
Criminal Procedure Act. In
saying this, the
respondents do not explain why these articles were included in the
warrants in the first place. The only reasonable
inference one can
draw is that there was no basis for including them. The items listed
under 1.3, 1.4 and 1.8 stand on a different
footing and will be dealt
with in due course.
The Aalwyn Street
Warrant
[
34] What
I have said above in connection with the Keerom Street warrant
equally applies to the Aalwyn Street warrant. The information
placed
before the issuing magistrate does not disclose reasonable grounds
for believing that any of the items listed in annexure
“B” were
in the possession or under the control of any person there or upon or
at such premises. In addition, articles that
had no connection
whatsoever with any of the relevant offences were seized from these
premises. This is an instance of improper
execution and the warrant
stands to be set aside on that basis as well.
Severability
[3
5] The
issue of severability arises only in respect of the two warrant
executed at 152 Haarlem Street at the Hagoth Flats. The
question
here is whether the good can be separated from the bad. If this is
possible, then the execution of the warrant will be
endorsed. In
dealing with this aspect one has to keep in mind what Langa CJ said
in the
THINT;
ZUMA
-case.
The learned judge expressed himself as follows at 1267A – B:
“It
seems appropriate to sever an overbroad part of a warrant where it is
possible to separate that bad part from the rest of
the warrant, and
where that part was not in fact executed and therefore no concrete
harm resulted to the person searched. In such
circumstances,
severance is the proportionate response; declaring the entire warrant
invalid would amount to using a sledgehammer
to crack a nut.”
[3
6] The
first point to be made in connection with these two warrants, is that
there were indeed reasonable grounds for believing
that some of the
articles listed were concerned in the commission or suspected
commission of the offence of dealing in unwrought
gold, in
particular. These are the articles listed under 1.3, 1.4 and 1.8 of
annexure “B”, as well as the maroon Nissan Hardbody
bakkie. And
there certainly was information establishing reasonable grounds that
these articles were on the relevant premises.
In fact, these
articles and persons linked to them (the first applicant and his
co-accused) were the real targets of the warrants.
That part of the
warrants authorising the search and seizure in respect of the
particular articles can therefore be regarded as
the good part.
[37] The
bad part is the one that authorises the search for and seizure of the
articles in respect of which there was no information
from which
reasonable grounds could be deduced for a belief that such articles
were, firstly, concerned in the commission of any
of the relevant
offences and, secondly, that they could be found on the relevant
premises. In regard to such articles the two
jurisdictional facts
for the issue of a search warrant referred to above were absent.
These comprise the rest of the articles
listed in annexure “B”.
The question remains whether the bad part is separable from the good.
[38
] What
complicates matters in the instant case is that the bulk of the
articles fall under the bad part of the warrants. In cases
where
severability has been ordered, the bad part appears to have been the
minor part. Compare
DIVISIONAL
COMMISSIONER OF SA POLICE, WITWATERSRAND AREA, AND OTHERS v SA
ASSOCIATED NEWSPAPERS LTD AND ANOTHER
1966 (2) SA 503
(AD) at 513B – C;
CINE
FILMS (PTY) LTD AND OTHERS v COMMISSIONER OF POLICE AND OTHERS
1972 (2) SA 254
(AD) at 268D – F. The same was the case in the
THINT;
ZUMA
-case,
supra
.
[39]
The
matter is further compounded by the fact that the items comprising
the bad part are not listed separately but are mixed up
with other
items throughout annexure “B”. For separation to be made one
would have to nick pick articles comprising the good
from the
document. In these circumstances, separation is neither possible nor
desirable. Compare
WORLD
WIDE FILM DISTRIBUTORS (PTY) LTD v DIVISIONAL COMMISSIONER, SA
POLICE, CAPE TOWN AND OTHERS
1971 (4) SA 312
(CPD) at 316D – E. I am also of the view that in
dealing with a matter like this the court should not lose sight of
the now
settled rule that the validity of search warrants must be
scrutinised strictly and with a jealous regard for the liberty of the

subject and his or her rights to privacy and property. See
POWELL
NO AND OTHERS v VAN DER MERWE NO AND OTHERS
2005 (1) SACR 317
(SCA) at 340d. Another factor that militates
against separation is that the bad part has been executed as well.
[40] But
the warrants suffer from some other defects as well. The places to
be searched were identified as Flats No. 1 and 4.
Yet the bulk of
the search was carried out in the garages and a building adjourning
them, which were clearly not identified in
the warrants. In their
answering affidavit, the respondents ascribe this to an innocent
mistake on the part of the police. Mr.
Kemp criticised this
explanation and said that it is an inexcusable mistake given that the
police operatives who had been involved
in the earlier trapping
exercise knew the correct venue, to wit, the garages and the
adjourning outbuilding. The criticism is
not without merit. Surely
the garages could not be confused with a flat, more so that the
garages and the outbuilding are quite
apart from the flats. Mr. Kemp
submitted that a warrant must specify the premises to be searched and
only such premises can be
searched, otherwise the warrant becomes
invalid. He cited
TOICH
v THE MAGISTRATE, RIVERSDALE AND OTHERS
,
supra
,
at 238e – g. I think the submission is well founded.
[
41] In
my view, the issuing magistrate did not apply her mind to the terms
of the warrants as well as the document filed in support
of the
application for same. All the warrants stand to be struck down as
being unlawful and overbroad.
Preservation order
[
42] Mr.
Madlanga submitted that if I should set aside the warrants I should
nonetheless grant an order preserving the evidence gathered
during
the execution thereof. He relied for this submission on the minority
judgment of Farlam JA in the
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS v ZUMA AND ANOTHER
[2008] 1 ALL SA 197
(SCA). I may mention that the relevant part of
Farlam JA’s minority judgment was endorsed by the Constitutional
Court in the
THINT;
ZUMA
-case.
(See pages 1269 – 1270 par. [220].) Mr. Kemp did not disagree. I
think that that would be the appropriate route to follow
as such
order would be just and equitable in the circumstances.
[43] I
must first identify the articles to be preserved. The list of
articles actually seized and which are presently in the custody
of
the police appear as annexure “I” to a copy of the notice of
motion which stands separately in the court file. There can
be no
doubt that the equipment used in the smelting and testing of
unwrought gold must be preserved. Then there is the maroon
Nissan
Hardbody bakkie as well as the amount of cash. The article that was
allegedly seized in terms of
section 22(1)
of the
Criminal Procedure
Act, as
well as those that were allegedly seized in terms of
section
23(1)
of the latter Act do not form part of the warrants and fall
outside the ambit of this judgment. I am referring to the green
Mercedes
Benz, the cellphones and the piece of gold allegedly found
during the arrest of the first applicant and his brother.
I
shall identify the articles to be preserved by reference to annexure
“I” and entitled “LYS VAN EIENDOM IN S.A.P.S BEWARING”
which
shall be attached to the order of court.
Ord
er
[
44] The
following order is made:
(a) All
the search and seizure warrants issued by magistrate M. Rutherberg to
Captain Flynn of the South African Police Service
on 12 February 2007
authorising the search and seizure operations at the applicants’
premises at 31 Keerom Street, Voorspoed,
Welkom, 13 Aalwyn Street,
Jim Fouche Park, Welkom, Flat No. 1 and Flat No. 4, Hargoth Flats,
152 Haarlem Street, Dagbreek, Welkom
as well as the search and
seizure operations conducted by members of the South African Police
Service pursuant to such warrants
on 13 February 2007 and 14 February
2007 are declared to be invalid and of no force and effect.
(b) Save for the
articles that are subject to the preservation order set out
hereunder, all the articles seized and removed from
the above
premises in pursuance of the said warrants, must be returned to the
applicants.
(c) The
following articles are to be preserved and are to remain in the
custody of the South African Police Service at Welkom under
the
control of Captain Hendrik Frans Flynn of the South African Police
Service, Klerksdorp. The latter captain shall ensure that
the
articles are secure and in safe custody and are made available as
evidence in the pending criminal case involving the first
applicant
and his co-accused and are to remain so available until the court
hearing the criminal case shall have made a ruling
on such articles
or another court of competent jurisdiction has ruled otherwise in
relation to them. The articles to be preserved
are those appearing
under the document entitled “LYS VAN EIENDOM IN S.A.P.S BEWARING”
and marked “I” under the following
numbers: 2 – 4, 5, 8 – 17,
22 – 27, and 29 – 32 as well as the Nissan Hardbody 3.3 V6S
registration CZX 992 FS.
(d) The
first respondent to pay the costs of suit.
___________
_
H.M.
MUSI, J
P
On
behalf of
applicants: Adv.
K.J. Jemp SC
Instructed by:
Podbielski
Mhlambi Inc
WELKOM
On
behalf of
respondents: Adv. M.R. Madlanga SC
With him:
Adv. L.H. Adams
Instructed by:
State
Attorney
BLOEMFONTEIN
/sp