Polonyfis v Provisional Commissioner for the SAPS, Northern Cape, No and Others (1365 / 2007) [2009] ZANCHC 49; 2010 (1) SACR 586 (NCK) (16 October 2009)

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[2009] ZANCHC 49
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Polonyfis v Provisional Commissioner for the SAPS, Northern Cape, No and Others (1365 / 2007) [2009] ZANCHC 49; 2010 (1) SACR 586 (NCK) (16 October 2009)

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IN THE HIGH COURT OF
SOUTH AFRICA
(Northern Cape,
Kimberley)
Case number:
1365
/ 2007
Date Heard:
18
/ 09 / 2009
Date delivered:
16
/ 10 / 2009
In
the matter between:
ELEFTERIOS
POLONYFIS
Applicant
and
THE
PROVINCIAL COMMISSIONER FOR
THE
SAPS, NORTHERN CAPE, N.O.
First
Respondent
INSPECTOR
P.I. VAN RENSBURG N.O.
Second
Respondent
CONSTABLE
J. STRYDOM N.O.
Third
Respondent
INSPECTOR
BOOYSEN N.O.
Fourth
Respondent
CONSTABLE
MOLELEKOA N.O.
Fifth
Respondent
CONSTABLE
MARKGRAAFFF N.O.
Sixth
Respondent
THE
MAGISTRATE, COLESBERG, N.O.
Seventh
Respondent
INSPECTOR
MOUTON N.O.
Eighth
Respondent
CONSTABLE
PETERS N.O.
Ninth
Respondent
CONSTABLE
MPULANYE N.O.
Tenth
Respondent
INSPECTOR
MATSHEBE N.O.
Eleventh
Respondent
CONSTABLE
BARNS N.O.
Twelfth
Respondent
THE
MAGISTRATE, DE AAR, N.O.
Thirteenth
Respondent
Coram:
Lacock
J
JUDGMENT
LACOCK
J
[1] This matter was
originally heard by Kgomo, JP under case number 1573/06 on 13 March
2007, who dismissed the application with
costs for the sole reason
that the relevant warrants and accompanying affidavit annexed to the
supporting affidavit, were illegible.
The merits of the application
were not considered. Subsequently the Applicant under case number
1365/07 applied for identical
relief to that originally applied for,
and inserted in his Notice of Motion a prayer for the incorporation
of the papers filed
in case number 1573/06. The Respondents did not
oppose the relief thus applied for, and there are no reasons for
refusing same.
[2] The Applicant
applies for the review and setting aside of two search warrants
purportedly issued in terms of Section 21(a) of
the Criminal
Procedure Act, 51 of 1977 (the CPA) by the Magistrate, De Aar, and
the Magistrate, Colesberg, authorising members
of the South African
Police to search and seize certain goods in or on the premises
described in the warrants as “
Voortrekkerstraat
59, De Aar Entertainment Club
”,
and “
Kerkstraat
Hall Entertainment Centre
”,
respectively; setting aside the execution of the warrants; and for
the return of the goods seized by the police.
Mr. Coetzee, appearing
on behalf of the Respondents, conceded that, should the warrants be
set aside, the ancillary relief applied
for should be granted. The
issue for determination is therefore the validity of the warrants
issued.
[3] It will be
convenient to first dispose of that portion of the application
pertaining to the warrant issued by the Magistrate,
De Aar. Mr.
Coetzee indicated that, for what I regard as a rather technical
reason, the application in respect of the De Aar warrant
should
succeed, and is no longer opposed by the Respondents. It is
therefore not necessary to deal any further with this part
of the
application save to grant the relief applied for in respect of the De
Aar warrant.
[4] The following facts
are common cause between the parties, or are at least not in
dispute:-
4.1 The Applicant is
the owner of the “
Entertainment
Centre
”,
a business situated at Shop 10, the Mall, 72 Church Street,
Colesberg.
4.2 On 1 December 2006
the Magistrate, Colesberg, at the request of members of the South
African Police Service, issued a search
warrant in terms of Sections
20, 21 and 25 of the CPA. The warrant reads as follows:-
“
VISENTERINGSLASBRIEF
Aan: Kst Strydom Kst Janse van
Rensburg
Insp Booysen; Kst Molelekwa
Kst Markgraaff
en enige ander lid van die
Suid-Afrikaanse Polisiediens wat behulpsaam kan wees met die
visentering en beslaglegging.
Dit blyk aan my uit inligting
onder eed, dat redelike gronde bestaan om te glo dat daar binne die
Landdrosdistrik van
Colesberg
voorwerpe is, soos wat in Aanhangsel ‘A’ hierby aangeheg, beskryf
is, en wat –
*(a) op redelike gronde vermoed
word betrokke te wees by vermeende pleging van;
*(b) tot bewys kan strek van die
vermelde pleging van; of
*(c) op redelike gronde vermoed
word bestem te wees om gebruik te word by die pleging van:
die misdryf(we), synde
onwettige
dobbelary onder Artikel 81(1)(a) van die Noord-Kaap dobbel en wedren
wet 1996 (nr5/1996)
en
dat ek redelike gronde het om te vermoed dat hierdie voorwerpe
in besit, of onder die beheer
van
……………………………………………………………
.
(vermeld naam en/of persoon(e) is;
of by ‘n perseel, te wete
Kerkstraat, Hall
Entertainment Centre
(beskryf perseel)
U word hierby gemagtig om
gedurende die dag die geïdentifiseerde –
persoon(e) te visenteer
perseel te betree en te deursoek
om enige persoon(e) op of by daardie perseel te visenteer,
en op die voorwerp(e) wat in
Aanhangsel “A” beskryf is, beslag te lê, wat gedurende die
deursoeking gevind word en om
daaroor te beskik ooreenkomstig artikel
30 van die Strafproseswet.
Gegee onder my hand te Colesberg
op hierdie 1ste dag van Desember 2006.
____________________ _____________________
LANDDROS: COLESBERG GESERTIFISEER
DEUR
Volle Name: Edward William
Schön
Ampstitel:
Landdros/Magistraat
Landdrosdistrik: Colesberg
”
The contents of the
affidavit of Inspector Mouton, containing the information on which
the warrant was issued and which was attached
to the warrant as
annexure “A”, reads:-
1.
Ek is ‘n volwasse man 34 jaar
oud met ID 721015 5068 08 1 werksaam te MII DE AAR as ‘n Inspekteur
woonagtig te Venterstraat
De Aar 7000, Tel 082 858 0590.
2.
Ek het gedurende 2006 op ‘n
navraag gewerk ten opsigte van onwettige dobbel persele. Inligting
is ingesamel ten opsigte van die
bedrywighede van die persele in die
Bo-Karoo.
3.
Te De Aar Voortrekkerstraat 59 is
‘n perseel met die naam van De Aar Entertainment Club. Die perseel
beskik oor geen dobbel lisensie
nie. Die modus operandi is dat geld
by die toonbank gegee word vir speel munte. Indien u wen kom die
dame na die masjien, skryf
die lesing neer, kanseleer die lesing en
die geld word by die toonbank uitbetaal. Daar is 40 masjiene.
4.
Te Colesberg is Entertainment
Centre geleë in die winkel sentrum Hall wat in Kerkstraat is by
die perseel is die modus operandi
presies soos op De Aar. Die geld
word by die toonbank betaal en weer word speel munte wat die masjiene
werk aan jou gegee iniden
u enige wennings maak word die lesing neer
geskryf en uitbetaal by die toonbank. Beskik oor geen lisensie nie
38 masjiene.
5.
In altwee gevalle is aansoek
gedoen vir 252A en sal van lokvinke gebruik gemaak word op 06/12/02
om dobbel te kan bewys op alle
gelde en masjiene sal beslag gelê
word.
6.
Dit is al wat ek kan verklaar.
”
4.3 On 2 December 2006
a member of the South African Police Service entered the aforesaid
shop, exchanged a R10.00 and a R20.00
note at the counter for 60
tokens (“
speelmunte
”),
played with these tokens on one of the machines (generally known as
“one-arm bandits”), won 35 “
credits
”
(the machine did not pay out winnings, but registered all winnings as
credits), returned to the cashier where an amount of R17.50
in cash
was paid to him, and thereafter left the shop.
4.4 The aforesaid
police officer reported what had transpired in the shop to Inspector
Booysen of the Crime Intelligence Unit of
the South African Police
Service, one of the police officers mentioned in the warrant,
whereupon the latter entered the said shop.
He presented the warrant
to the person in charge, and proceeded to execute the warrant by
seizing cash in the amount of R15,162.30,
26 “
gambling
machines
”,
a coin counting machine, a scale used for weighing tokens, all tokens
found in the premises, documents and receipt books, keys,
ashtrays,
chairs and some other smaller items. Booysen also took possession of
a black book found in the room of the person in
charge.
4.5 The affidavit of
Mouton referred to above was not attached to the copy of the warrant
presented to the person in charge of
the premises nor his attorney
who arrived at the shop during the seizure of the goods.
4.6 All goods seized
were removed to the premises of the South African Police Service in
Colesberg.
[5] Mr. Jagga, on
behalf of the Applicant, attacked the validity of the warrant on a
number of grounds. I will deal
s
eriatim
with each of these grounds.
[6] In the first
instance it was submitted that the warrant handed to the person in
charge by Booysen, was not accompanied by the
affidavit (annexure
“A”) and therefore did not contain a description of the goods to
be searched for and seized. The warrant,
so it was submitted,
therefore did not comply with the provisions of Section 21(1)(a) of
the CPA, reading,
“
Subject
to the provisions of sections 22, 24 and 25, an article referred to
in section 20 shall be seized only by 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;
”
The difficulty with
this argument is that annexure “A” was in fact attached to the
warrant issued by the Magistrate and formed
part thereof. The police
officers’ failure to hand the complete warrant to the person in
charge, can therefore not affect the
validity of the warrant issued
by the Magistrate. It is not in dispute that the officer in fact
had the relevant affidavit in
his possession at the time when the
warrant was executed.
[7] In the alternative,
Mr. Jagga argued that the goods to be seized in terms of the warrant
were in any event not described with
sufficient particularity in
annexure “A” to render the warrant valid. In this regard
reliance was placed on the case of
Powell
N.O and Others vs Van der Merwe and Others
,
2005(1) SACR 317 (SCA) where Cameron, JA, after having referred to
earlier case law, made the following general remarks at 340(d)
to
(g):
“
These
cases establish this:
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.
This applies to both the
authority under which a warrant is issued, and the ambit of its
terms.
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.
A warrant must convey
intelligibly to both searcher and searched the ambit of the search
it authorises.
If a warrant is too general, or
if its terms go beyond those the authorising statute permits, the
Courts will refuse toe recognise
it as valid, and it will be set
aside.
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.
”
The cases referred to
by the learned Judge of Appeal reveal that the goods in the relevant
warrants were described in such vague
and/or overbroad terms as to
render the warrants invalid for either vagueness or overbreadth. In
some instances the alleged crime
for which the warrant was issued,
was not specified; in another, the goods were described as “
certain
books and documents and other papers
”,
and in yet another case as “
all
other documents including statements of whatsoever nature concerning
reports in connection with the conditions in gaol and experience
of
prisoners in gaols throughout the RSA.
”
At 341(b) to (d)
Cameron JA commented as follows on the description of the goods as
contained in the warrant in
Powell,
supra
“
The first paragraph
authorises the seizure of literally all documents passing between
Powell, his family and Nell and Nell’s
family. What if, as Powell
deposed, he and Nell have been friends for many years? Christmas
and birthday cards, emails between
the families’ children, notes
between their spouses, are included.
The third paragraph would
license the seizure of even share certificates in publicly listed
companies ‘in which BC Nell and/or
O M Powell and/or their spouses
and/or their family members and/or an employee of O M Powell has an
interest’.
The seventh (‘any other
document and/or object that has relevance to or may have relevance
to the investigation’) is so unbounded
as to resist coherent
analysis. Some application of the phrase ‘the imagination
boggles’, which this Court endorsed in the
SAP v SAAN case, would
seem appropriate. Together with the rest of the annexure this
paragraph affords neither investigation
nor investigated the
slightest guidance as to what could, and what could not, lawfully be
taken.
[62] Instead, those carrying out
the search were given virtually untrammelled power to carry out what
Mr Slomowitz in his argument
justly called ‘a general ransacking’
of Powell’s premises.
”
7.1 Mr. Jagga
submitted that the words “
alle
gelde
”
(all monies) contained in annexure “A” are so wide and uncertain
that it can be read as to include money found on clients
or patrons
in the shop. The warrant, so he submits, is therefore void for
vagueness.
[8] I do not agree with
these submissions. What the Colesberg warrant authorises the police
to search for and seize, are “
die
voorwerpe wat (in) aanhangsel “A” beskryf is
”
(the
objects referred to in annexure “A”). The objects referred to in
annexure “A” are: “
geld
”
(monies), “
speelmunte
”
(tokens) and “
masjiene
”
(machines). To these goods are referred to in annexure “A” in
the following terms:-
“
Die
modus operandi is dat
geld
by die toonbank gegee word vir
speelmunte
.
Indien u wen, die dame na die
masjiene
skryf die lesing neer, kanselleer dan die lesing en die
geld
word by die toonbank uitbetaal.
”
“
Die
geld
word by die toonbank betaal en weer word
speelmunte
wat by die
masjiene
werk aan jou gegee.
”
“
38
masjiene
.
”
“
Op
alle
geld
sowel as
masjiene
sal beslag gelê word.
”
(
My
emphasis).
To my mind, when
reading annexure “A”, there can be no doubt that the monies
referred to are the monies used in the shop in
exchange for tokens
and that monies paid to patrons for credits won on the machines. The
tokens referred to are clearly the tokens
used for playing the
machines, and the machines are the machines thus played.
The suspected crime is
referred to in the warrant as illegal gambling. To my mind, there is
no vagueness or overbreadth in regard
to either the suspected crime
or the nature of the goods to be seized as described in the warrant.
[9] I do, however,
agree with Mr. Jagga, that the warrant did not authorise the police
to seize any other goods but money, tokens
and gambling machines.
[10] That brings me to
Mr. Jagga’s second submission, viz that since the police seized
goods such as chairs, ashtrays, books,
a scale and a counting machine
which was not covered and authorised by the warrant, this conduct by
the police tainted the warrant
with invalidity.
I do not agree.
This, to my mind, is
a case where the good can easily and without any real prejudice be
severed from the bad. In fact, counsel
are agreed that the chairs
and ashtrays had been returned to the Applicant. The remaining
goods not covered by the warrant
can immediately be returned to the
Applicant, and Mr. Coetzee has conceded that that should be done
immediately.
Although a search and
seizure procedure constitutes an invasion on the privacy of a
person and requires strict compliance with
the applicable statutory
provisions of the CPA, one should not lose sight of the
ratio
behind this procedure which is to curb crime. It is in the public
interest that crime should be appropriately dealt with by
law
enforcing officers.
“
In
a democratic State such as ours, search is a permissible, subject to
reasonable limitation. It is an integral part in assisting
the
police in the investigation of crime. It serves as a vital means to
procure evidence for the consideration of initiating a
prosecution or
for the institution of a prosecution. To ensure that searches and
seizures are credible, safeguards are provided
in the Criminal
Procedure Act 51 of 1977 (“CPA”) and in certain special laws. If
the safeguards are not adhered to then the
logical consequence is
that it will not have the same validity and credibility, which a
search and seizure will have if the safeguards
are adhered to.
”
(
Rajah vs Chairperson: NW
Gambling Board
[2006] 3
All SA 172
(T) at 174e).
Therefore,
to my mind, a balance should be struck between private interests on
the one hand which demands the protection of a constitutional
right
to privacy and freedom, and public interest on the other hand which
in turn demands a protection against crime.
Applying these
principles to the facts of the present matter, I conclude that public
interest outweighs the private constitutional
rights of the
Applicant, and that it would therefore not be in the interest of
justice to set aside the entire warrant by reason
of the said conduct
of the police officials involved in the execution of the warrant.
[11] Thirdly, Mr. Jagga
contended that the premises to be searched could not be properly
identified in the warrant. In the warrant
itself the premises are
described as “
Kerkstraat,
Hall Entertainment Centre
”.
The proper address of the premises is however “
The
Entertainment Centre, Shop 10, The Mall, 72 Church Street,
Colesberg
”.
Mr. Jagga was
constrained to concede that, once annexure “A”, and which formed
part of the warrant, was read in conjunction
with the warrant, the
premises would be identifiable by a third person without any
difficulty. In annexure “A” the premises
are described as, “
te
Colesberg is Entertainment Centre geleë in die winkelsentrum
Hall wat in Kerkstraat is
.”
The word “
Hall
”
is clearly a misnomer for “
Mall
”.
[12] Mr. Jagga’s main
argument, and which was the main thrust of the Applicant’s case, is
summarised as follows in his Heads
of Argument:
“
49.1 Annexure
“A”, which formed the basis for the issuing of the search
warrant, clearly states that according to Mouton: “Geld
word by die
toonbank betaal en weer word speelmunte wat by die masjiene werk aan
jou gegee. Indien u enige wennings maak word
die bedrag neergeskryf
en uitbetaal by die toonbank”.
49.2 This clearly states that
in accordance with what Mouton observed illegal gambling is taking
place at the premises in Colesberg.
This is confirmed by the fact
that he states: “Dit beskik oor geen lisensie”.
49.3 He furthermore states
that a section 252A authority will be obtained “om dobbel te kan
bewys”.
50. It is in accordance with
this respectfully submitted that the affidavit on oath submitted to
the seventh respondent clearly
therefore shows that according to
Mouton the offence of illegal gambling is committed at the Colesberg
business.
51. There is no reference in the
affidavit that it is suspected that there may be goods there which
are used in the commission
of an offence or may be used in the
commission of an offence or is intended to be used for the commission
of an offence. What
is stated as a fact is that there is the offence
of illegal gambling, which is committed by way of “speelmunte,
masjiene” and
if you win you are being paid out.
52. It is in fact conceded by
the respondents on page 26 of the answering affidavit (para 38.4)
where it is stated:
“Ongeag of the
eedsverklaring aandui dat daar reeds ‘n misdryf gepleeg is bestaan
daar geen rede om nie die tweede tot sesde
respondent toe te laat om
op voorwerpe beslag te lê wat vermoed word betrokke te wees of
ter bewys kan strek of bestemming
wees vir die pleging van ‘n
misdryf nie”.
53. It is therefore conceded by
the respondents that the affidavit indicates that an offence has
already been committed.
54. The seventh respondent
himself filed an affidavit to enlighten this Honourable Court as to
why he authorised the warrant.
In paragraph 7.2 of this affidavit
(p138 of the paginated papers) he states:
“Nadat ek die verklaring
deurgelees het was ek oortuig dat daar redelike gronde bestaan om te
glo dat daar ‘n misdryf op
die perseel gepleeg word.”
And:
“10.1 Ek het inderdaad die
aangeleentheid deeglik oorweeg. Ek het dit nie nodig gevind om die
polisie se bevoegdhede te beperk
deur te spesifiseer watter tipe
masjiene op beslaggelê moet word en watter nie. So ook met die
geld.
10.2 My bedoeling was om die
bevoegdhede van die Suid-Afrikaanse Polisie Diens nie onnodig te
beperk en hulle derhalwe nie te
belemmer in die uitvoering van hulle
pligte nie.”
55. It is respectfully submitted
that it is therefore abundantly clear that what the seventh
respondent intended was to under the
guise of a search warrant not
restrict and limit the members of the SAPS but indeed to give them a
free hand insofar as what is
to be searched for, as long as they know
what they search for are money or machines.
58. It is in accordance with the
above respectfully submitted that however admirable the views of the
seventh respondent may have
been in that he did not wish to
unnecessarily curb the powers of the members of the SAPS, no
indication is given that he considered
any other information than
that what is contained in annexure “A”. He had to therefore
accordingly apply his mind in accordance
with the information placed
before him under oath as contained in annexure “A”.
59. As stated hereinabove,
annexure “A” clearly indicates that the offence of illegal
gambling has been committed. There is
therefore no indication in the
annexure that any of the other grounds as provided for in
section
21(b)
and (c) of the
Criminal Procedure Act are
apposite.
60. Had the magistrate
accordingly duly applied his mind he would have noted that the
grounds as set out in subparagraph (a) on
the warrant had been
apposite. He accordingly would have deleted paragraphs (b) and (c).
By allowing the warrant to also authorise
search and seizure for
purposes of subparagraphs (b) and (c) he has made the warrant too
wide and general in accordance with the
abovestated dicta and for
this reason alone the warrant is to be regarded as being too wide and
to be set aside.
”
[13] In support of this
argument, Mr. Jagga strenuously relied on the unreported judgments of
Webster, J in
Fiona
Henning v The Minister of Public Safety & Security and Others
,
Case Number 22157/2003 (TPD) and that of Gura, J in
Sarel
Blaauw v The Chairperson of the North West Gambling Board and Others
,
Case Number 940/04 (BPD).
In
Fiona
Henning, (supra)
the following was said in this regard:
“
It
will be observed that the magistrate marked all the reasons for the
granting of the warrant as ‘toepaslik’. The affidavits
by
captain JC Taljaard attached to the application for the issue of the
warrant sets out clearly that he carried out an entrapment
operation
at the premises in question. In the reasons for granting the issue
of the warrant the magistrate repeats all the reasons
set out in the
roneod form as his reasons for granting the warrant. It is clear
that the roneod form covers all the three subsections
of
section 20
of the CPA. The magistrate clearly did not attempt to distinguish
which of the three instances of
section 20
of the CPA were
‘toepaslik’. The affidavits submitted to the magistrate clearly
set out that the equipment on the premises
had been used for
gambling. Clearly an offence had been committed. Accordingly
paragraphs b-d and f-h on the roneod form were
not material and
relevant for the granting of the warrant. This raises the question
of whether the magistrate concerned applied
his mind in determining
what the relevant facts were that justified the issue of the warrant
(SA Police v SA Associated Newspapers
1996 (2) SA 503
(SCA) at 502)
and further whether the warrant was so wide that it is too general
(Worldwide Film Distributors v Director-Commissioner
SA Police, SA
Police Cape Town
1971 (4) SA 312
(C)).
”
It
is difficult to conceive how the magistrate could have marked all the
squares on the warrant as ‘toepaslik’. They clearly
make
provision for different circumstances. It is my considered view that
the magistrate concerned did not read the roneod form
to consider and
decide why the warrant was being issued. In my considered view he
clearly did not apply his mind. The consequence
was that even though
the officer to whom the warrant was issued knew what he was after the
warrant authorised was too general and
consequently irregular and
unlawful.
”
And in
Sarel
Blaauw (supra)
the learned Judge expressed himself as follows:-
“
In
my view there is only one reason why the warrant was requested.
There was a suspicion that an offence was being or had been

committed, that being a ground in section 21(a) of the Act. However,
the fifth respondent decided to authorise a warrant covering
the
other grounds in section 21(b) and (c). With respect, the fifth
respondent is not authorised to do so. As it is the warrant
is too
general (Worldwide Film Distributors (Pty) Ltd vs The Provincial
Commission SA Police Cape Town and Others
1971 (4) SA 312
(C)) and
cannot stand the test of validity. It is therefore invalid.
”
(as quoted in Mr.
Jagga’s Heads of Argument)
In both these
judgments reliance was placed on the judgment in
Worldwide
Film Distributors vs Director-Commissioner SA Police, Cape Town, and
Others
1971
(4) SA 312
(C).
Mr. Jagga further
relied on the judgment in
Rajah
and
Others vs The Chairperson: North West Gambling Board and Others
(supra)
.
[14] Section 20 of the
CPA reads,
“
The
State may, in accordance with the provisions of this Chapter, seize
anything (in this Chapter referred to as an article)-
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;
which may afford evidence of the
commission or suspected commission of an offence whether within the
Republic or elsewhere; 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.
”
The relevant portion
of Section 21 of the CPA reads,
“(1) Subject to the provisions
of sections 22, 24 and 25, an article referred to in section 20 shall
be seized only by virtue
of a search warrant issued-
(a) by a magistrate or judge,
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;
”
[15] In reply to the
allegations that he failed to apply his mind to the matter at hand
when the warrant was issued, Mr. Shön,
the Magistrate, stated
under oath,
“
7.1 Ek
ontken dat ek nie my aandag aan die aangeleentheid spandeer het
alvorens ek die lasbrief onderteken en uitgereik het nie.
Ek het
juis nie enige van (a), (b) or (c) deurgehaal nie, aangesien ek dit
nodig gevind het om die bevoegdhede soos in aldrie
vervat, intakt te
hou en nie die Polisie se magte onnodig te beperk nie.
Nadat ek die verklaring
deurgelees het, was ek oortuig dat daar redelike gronde bestaan om
te glo dat daar ‘n misdryf op die
perseel gepleeg word.
Dit was vir my duidelik dat die
geld, masjiene en speelmunte kwalifiseer in terme van (a), (b) en
(c) en derhalwe het ek nie
een van die drie deurgehaal nie.
”
[16] I cannot agree
that the failure of the magistrate to indicate on the warrant which
subsections of Section 20 of the CPA were
applicable, justifies the
inference that he failed to apply his mind when the warrant was
issued.
A magistrate derives
his or her authority to issue a search and seizure warrant from
Section 21(1)(a) of the CPA. Clearly the
information supplied to
the magistrate under oath needs to be considered against the
provisions of Section 20 of the CPA.
The information and the
provisions of Section 20 therefore require conjunctive
consideration by a magistrate of the information
as well as the
provisions of Section 20. This section, however, makes no
provision for a magistrate to indicate on a warrant
which
subsection of Section 20 he or she deems applicable. On the
contrary, this section is couched in general terms and the

discretion of a magistrate is left unfettered therein.
The mere fact that the
roneod form of the warrant makes provision for the deletion of one or
more of the subsections of Section
21 as quoted therein, cannot alter
the intention of the legislature as expressed in Section 21 of the
CPA.
16.2 To the extent
that Guda, J opined in
Sarel
Blaauw (supra)
that a magistrate is not authorised to issue a warrant on all three
subsections of Section 20 of the CPA, I respectfully disagree
with
that portion of the judgment. There is no indication in the wording
of Section 20 to justify such an interpretation: in the
wording of
the section, one subsection is not an alternative to the other
subsections.
To my mind, if it
appears to a magistrate – on the information supplied to him under
oath – that all three subsections of Section
20 of the CPA may be
applicable, nothing prevents him or her from issuing a warrant on the
strength of all three subsections.
In
casu
the magistrate stated that he deliberately did not delete any of the
quoted subsections since he was of the view that all three
were
applicable and he did not wish to restrict the police when executing
the warrant. To my mind, this constitutes a proper
and judicial
exercise of the magistrate’s discretion.
16.3 Again, with
respect, I find it difficult to follow the reasoning of
Webster,
J in
Fiona
Henning (supra)
quoted hereinbefore. Even if the information submitted to a
magistrate is indicative of an offence having been committed, the

offender still needs to be charged and brought to justice, i.e. the
alleged offender must still be prosecuted and the offence proved
in a
court of law. I have immense difficulty in appreciating why a
magistrate – once it appears to him or her that an offence
had been
committed – would be precluded from considering whether the
articles to be seized “
may
afford evidence of the commission or suspected commission of an
offence
”,
and/or were “
intended
to be used or is on reasonable grounds believed to be intended to be
used in the commission of an offence
”
(Sections 20 (b) and (c) of the CPA).
The present matter
appears to me to be almost a textbook example of a case where all
three subsections of Section 20 are apposite.
The offence referred
to in the warrant, is the alleged contravention of Section 81(1)(a)
of the Northern Cape Gambling and Racing
Act reading as follows:-
“
No
person shall without a licence –
Conduct or permit the playing of
any gambling game or conduct or permit any betting or racing in or on
any premises under his or
her control or in his or her charge.
”
What constitutes a
“
gambling
game
”
in terms of this Act, is defined as follows:-
“…
means
any game played with or by means of cards or dice or any mechanical,
electro-mechanical or electronic device, component or
machine or
computer hardware or software for money, property, cheques, credit or
anything of value and includes, without derogating
from the
generality of the foregoing, roulette, bingo, twenty-one, blackjack,
chemin de fer, baccarat, poker, craps and punto banco;
”
A “
gambling
machine
”
is defined as:-
“…
any
electronic, electro-mechanical or mechanical device, contrivance or
machine which, upon insertion of a coin, token or similar
object, or
upon payment of any consideration, is available to be played or
operated, the play or operation of which, whether by
reason of the
skill of the operator or application of the element of chance, or
both, may deliver or entitle the person playing
or operating the
machine, or any other person, to receive cash or anything of value;
”
a) It appears from
annexure “A” to the warrant that it was suspected that the
offence of illegal gambling was committed on
the relevant premises.
b) It further appears
that the police intended to make use of an undercover operation to
prove the commission of the said offence.
It goes without saying
that the machines used by the Applicant would be an essential exhibit
or object in the hands of the State
to prove that illegal gambling
was committed, and the machines would therefore afford evidence of
the commission of the offence.
c) The practice
employed by the Applicant as described in annexure “A” reveals
that money is exchanged for tokens, the tokens
are used for playing
the machines, and, once credits are won, such credits are paid in
cash to the person who played the machine.
The monies and tokens in
or on the premises therefore constitute articles intended to be used
in the commission of the offence
of illegal gambling.
16.4 Mr. Shön
himself said that he concluded that all subsections of Section 20 of
the CPA were apposite. I do not find the
manner in which he
exercised his discretion unreasonable or arbitrary, nor indicative of
a failure to properly apply his mind to
the issues when he issued the
relevant warrant.
16.5 The issue for
consideration raised in this matter, was not dealt with in
Worldwide
Film Distributors (supra)
and I find it unnecessary to deal with that decision.
16.6 The facts in
Rajah
(supra)
are distinguishable from the facts in the present matter. In that
case a warrant containing the wording of all three subsections
of
Section 20 of the CPA was issued in respect of an offence pertaining
to “
a
gambling machine or gambling device on the First Applicant’s
premises and
the
possession of which is unlawful
and that there are reasonable grounds to believe that there is such a
machine or device which is evidence of the commission of
an offence.
”
(At paragraph 22).
Patel, J went on to
state,
“
If
possession of a gambling machine in itself is an offence, and that is
the only offence mentioned in the search warrant, the search
and
seizure could not have been authorised because the machine is
concerned in the commission of an offence or is to be used in
the
commission of an offence, due to the nature of the offence which
formed the basis of the search warrant. Mr Jagga rightly
submitted
that if one has regard to the contents of the search warrant, it is
clear that the fifth respondent did not ascertain
whether any
specific activity or all of them specified in the subsection was or
were applicable for purposes of the warrant. Had
he done so then the
warrant could not have been couched vaguely in the manner in which it
had been done, that is:
‘Wat betrokke is of waartoe
daar redelike gronde is om te glo betrokke is by die oortreding van
Artikel 9(1)(a) van die Nasionale
Dobbelwet, Wet 7 van 2004, en dat
die voorwerpe gesoek soos vermeld in aanhangsel ‘C’ betrokke is
by die pleging van ‘n misdryf
of tot bewys van die pleging van ‘n
misdryf te perseel Bafana Bafana, Alkmaar House, Erf no 3639, Civic
Straat, Stilfontein,
in die Republiek van Suid-Afrika, en wat as
bewys kan dien by die pleging van ‘n oortreding of vermoedelike
pleging van ‘n
oortreding of wat redelike gronde vermoed word by
die pleging van die gespesifiseerde oortreding...’
Had the fifth respondent in fact
considered
the
nature of the offence under section 9(1)(a)
,
then it would have been clear to him that not all activities
specified in the subsection are applicable. The warrant must clearly

indicate a link between the unlawful activity and the item that is
authorised to be seized and for that very reason both warrants
are
too wide and vague.
”
(My emphasis)
In casu
,
the alleged offence was not merely the possession of a gambling
device, but “
illegal
gambling
”
an offence the elements of which are more complex than that of mere
possession of a gambling device.
The magistrate in
Rajah
(supra)
failed to file an affidavit challenging the allegations that he
failed to apply his mind to the matter at hand when issuing the

warrant. (See paragraph 14 of the judgment).
In
casu
the magistrate fully explained his reasons for considering that all
three subsections were applicable.
It would appear that
Patel, J too did not regard the applicability of all three
subsections of Section 20 of the CPA to be inappropriate
in all
matters concerning the issue of a warrant under Section 20(1)(a) of
the CPA. In paragraph 21 of the judgment he states,
“
Having regard to the contents
of the search warrants authorised by the fifth respondent, he could
not have applied his mind as to
whether the gambling machines that
were authorised to be seized resort under subsections (a), (b) or (c)
of section 20
or
whether anyone or all of them in fact applied
.
”
(emphasis
supplied)
(At paragraph 21)
As explained
hereinbefore, the offence referred to in the Colesberg warrant
entails an activity (gambling) suspected to be committed
by the use
of devices (gambling machines) tokens and money, and all three
subsections of Section 20 can therefore be apposite.
[17] I therefore
conclude that the Colesberg warrant had been properly issued, and is
not invalid for any of the reasons advanced
except to the limited
extent as indicated. The application in respect of the Colesberg
warrant, can therefore not succeed.
[18] Since both parties
were partially successful and partially unsuccessful, to my mind it
would be fair and reasonable to both
parties if no order as to costs
is made.
[19] In the premises,
the following order is made:
1. The papers filed
in the matter of Elefterios Polonyfis and the Provincial Commissioner
of the SAPS, Northern Cape, N.O. and
Others under Case Number
1573/2006, are incorporated into this application.
2. The search
warrant issued by the Thirteenth Respondent dated 30 November 2006 in
respect of the business, De Aar Entertainment
Club, 59 Voortrekker
Street, De Aar, as well as the execution of the aforesaid warrant by
the Eighth to the Twelfth Respondents,
is set aside.
3. The Eighth to
Twelfth Respondents are ordered to forthwith restore to the Applicant
the possession of the items seized on 2
December 2006 at the De Aar
Entertainment Club, 59 Voortrekker Street.
4. The Second to
Sixth Respondents are ordered to forthwith restore to the Applicant
the possession of all items seized on 2 December
2006 at the
Entertainment Centre, The Mall, Kerk Street, Colesberg, except the
monies, tokens and gambling machines thus seized.
5.
But
for the aforesaid, the Application is dismissed.
6. No
order as to costs is made.
_______________
HJ
Lacock
JUDGE
On
behalf of the Applicant:
Adv
Jagga (o.i.o Van de Wall Attorneys, Kimberley)
On
behalf of the Respondents:
Adv
W.J. Coetzee (o.i.o State Attorney, Kimberley)