About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1986
>>
[1986] ZASCA 44
|
|
Control Magistrate Durban v Azanian People's Organisation (455/84) [1986] ZASCA 44; [1986] 2 All SA 328 (A) (27 March 1986)
THE CONTROL MAGISTRATE, DURBAN
vs
AZANIAN PEOPLE'S ORGANISATION
(AZAPO)
JANSEN JA
Case no 445/84 MC
Case no.
445/84. MC
IN THE SUPREME COURT OF SOUTH
AFRICA
(APPELLATE DIVISION)
In the matter between
THE CONTROL MAGISTRATE, DURBAN
Appellant
- and
AZANIAN PEOPLE'S ORGANISATION
Respondent
(also known as AZAPO
Coram:
JANSEN, VILJOEN, VAN HEERDEN, BOSHOFF JJA et GALGUT AJA.
Heard: 17 February 1985
Delivered
: 27 March 1986.
JUDGMENT
JANSEN /....
2
J
ANSEN JA :
-
During the early hours of 22 May 1984 members of the Special Branch of the
South African Police visited certain 9 premises in and
about Durban. These
premises were occupied by persons having some association with the Azanian
Peoples Organisation (AZAPO). The
police conducted a search at each address and
seized
inter alia
certain articles, mostly of a documentary nature,
pertaining to AZAPO. The police purported to act in terms of warrants
ex
facie
issued in terms of sec. 25 of the Criminal Procedure Act (Act 51 of
1977} by the control magistrate, Durban. AZAPO thereafter applied
"as a matter
of urgency" to the Durban and Coast Local Division for an order that the
warrants be "set aside as having no force and
effect whatsoever" and that the
articles seized be returned. The control magistrate and' the Minister of Law and
Order were cited
as first and second respondents
respectively.
3
respectively. They opposed the application. The Local Division
(
per
DIDCOTT J) held that the warrants were invalid and set them aside,
awarding costs against the magistrate in his capacity
as
such. No order,
however, was made against the Minister in view of an assurance that the articles
seized would be returned. The magistrate
appeals by leave of this Court.
The only issue now is whether the magistrate
,
in issuing the warrants,
duly exercised his discretion in terms of sec 25(1) of the Act. The section
reads as follows:-
"(1) If it appears to a magistrate or justice from information on oath that
there are reasonable grounds for believing
( a ) '
(b) that an offence has been or is being or is likely to be committed or that
preparations or arrangements for the commission of any
offence are being or are
likely to be made in or upon any premises within his area of jurisdiction,
he
4
he may issue a warrant authorizing a police official to enter the premises in
question at any reasonable time for the purpose -
(i)
(ii) of searching the premises or any
person in or upon the premises for any article referred to in section 20
which such police official on reasonable grounds suspects
to be in or upon or at
the premises or upon such person; and (iii) of seizing any such article."
Each of the warrants states, above the signature of the magistrate, the
following:-
"1 .
2. Nademaal dit op grond van inligting onder eed gedoen, na my mening blyk
dat daar redelike gronde bestaan om te dink dat daar op
of by die perseel [in
each case described]
(1)
(2) die misdryf van Artikel 13(1)(a)(v)
van die Wet op Binnelandse Veiligheid (Wet 74/1982) voortsetting van die
oogmerke van 'n verbode organisasie of soortgelyke oogmerke
gepleeg is of
gepleeg word of waarskynlik gepleeg sal word of dat voorbereidings of reelings
vir die pleging van 'n misdryf getref
word of waarskynlik getref sal word in of
op bogenoemde perseel.
3. U
5.
3. U word hierby gemagtig om die bogenoemde perseel op 'n
redelike tyd te betree ten einde -
(1)
(2)
bogenoemde perseel of enige
persoon in of op die perseel te deursoek vir 'n ARTIKEL 20 (WET 51 van 1977)
bedoelde voorwerp wat, na
'n op redelike gronde vermoed in of op of by die
perseel of aan bedoelde persone is, en
(3)
so
'n voorwerp in beslag te neem. "
The case made out
by AZAPO in its founding affi= davit that the magistrate, improperly exercised
his discretion rests entirely on
the following bald "a1legation": -
"38. I respectfully submit ...... that there
was no basis whatsoever for believing that any offence had been committed or
was about to be committed for the purpose for which the
warrant was issued by
the First Respondent and that, accordingly, he improperly exercised his
discretion in ordering the same."
(It is true that some inference was also sought to be drawn from a reply by
the magistrate to a telephonic inquiry by AZAPO's attorney,
but the inference
was so tenuous that
it
6
it was not mentioned in the judgment
a quo
nor does it
merit further consideration).
In his answering affidavit the magistrate states that he issued the warrants
pursuant to an application to him by Captain H S Miles
of the South African
Police on 21 May 1984. He continues:-
7.
Na deurlees van die eedverklaring ter onder= steuning van die aansoek, was
dit my oorwoë mening dat, op grond van die inligting
onder eed voor my
geplaas, daar redelike gronde bestaan het om te dink dat daar op of by die
persele genoem in die eedsverklanng
ter ondersteuning van die aansoek, dit
geblyk het voldoende grond bestaan vir die uitreiking van die gemelde lasbriewe
waarna hierbo
verwys word.
Dit het verder geblyk dat 'n misdryf van oortreding van Artikel 13(1) (a)(v)
van die Wet op Binnelandse Veiligheid, Wet 74 van 1982
gepleeg is, of gepleeg
word of waarskynlik gepleeg sal word of dat voorbereidings of reelings vir die
pleging van so 'n misdryf getref
word of waarskynlik getref word in of op die
bovermelde persele.
9. Dit
7.
9.
Dit het in besonder uit die bogemelde inligting onder eed
aan
my
verskaf geblyk dat daar redelike gronde is om te dink dat die Applikant horn
skuldig maak aan die verwesenliking van die oogmerke
van 'n onwettige
organisasie of organisasies soos gedefinieer in Artikel 1 van Wet 74 van 1982,
te wete die South African Students
Organisation (bekend as SASO) en die Black
Peoples Convention (bekend as BPC) en voorts dat Applikant oogmerke had wat
soortgelyk
is aan die van SASO en BPC en sodanige oogmerk bepleit, aanraai,
verdedig, aanmoedig en/of voortsit of handelinge verrig wat bereken
is om die
verwesenliking van die oogmerke van SASO en die BPC te bevorder.
10.
Ek het gevolglik lasbriewe uitgereik ten opsigte
van elk van die persele
wat 'n polisiebeampte of
beamptes magtig om elk van die betrokke
persele
op 'n redelike tyd te betree "
The bon
a fide
s of the magistrate was never in
doubt: the Court
a
qu
o remarked that "there is no suggestion, and rightly no suggestion, that
he has acted anything but honestly in the matter". Moreover,
it has been
common
cause
8
cause throughout that "reasonable grounds for believing" in sec 25(1)
are not "grounds" measuring up to an objective standard, but
grounds which in
the subjective opinion of the magistrate are reasonable. Nevertheless, the
Court, in effect, came to the conclusion
that the magistrate had not applied his
mind to the matter before him: the Court found it "inescapable, at the level of
the probabilities,
that the magistrate was either given
no
grounds at all
for the belief, or, at most, that he was given grounds for the belief which this
Court has clearly held to be equivalent
to no grounds." The Court inferred that
the only "information on oath" placed before the magistrate consisted of "bare
opinions"
or at most amounted to no more than an allegation that AZAPO shared
with SASO a common belief in Black Consciousness. The latter
allegation could
not
per s
e, as the Court had decided in an earlier case
(Ndabeni v
Minister of Law and Order and Another
1984(3)
SA 500(D)),
9.
SA 500(D)), give rise to a reasonable (in an objective sense)
suspicion that AZAPO was advocating, advising, defending or encouraging
some
object of SASO.
For purposes of this appeal it is unnecessary to consider whether the
"information" envisaged by sec 25(1) excludes opinion evidence
or whether
Ndabeni
was correctly decided. It seems clear that the Court was not
justified in arriving at the conclusion it did in respect of the nature
of the
information placed before the magistrate.
The essense of the Court's reasoning was that if more had been placed before
the magistrate, he would have said so; in other words,
that his failure to set
out his grounds of sus= picion in his affidavit raises the inference which the
Court accepted. This reasoning,
however, overlooks the fact that AZAPC in its
founding affidavit had not made out a pr
ima facie
case of an improper
exercise by the magistrate of his discretion and that it was not incumbent upon
him to answer at all. Moreover
the
10.
the Court
a quo
was erroneously under the impression
that there was no suggestion that any of the information placed before the
magistrate was of
a confidential nature. In truth H S Miles says in his
affidavit:-
3.
Ek het die eedverklaring van beheerlanddros JOHANNES THEODORUS BOSCH hierin
gelees en ek bevestig die inhoud daarvan insoverre as
wat dit op my betrekking
het. Ek wil verder meld dat die inhoud van die verklaring wat ek aan die gemelde
Bosch voorgele het, vertroulike
inligting bevat."
The Court was also under the impression that "the magistrate has specifically
referred to the evidence in this case as containing
the information on which he
acted." This led to an assessment by the Court of the affidavits by members of
the police, made on behalf
of the Minister and mainly relating to the seizure of
the articles in question, as a basis of determining the nature of the
information
given to the magistrate. In fact, however, the magistrate had
made
11.
made no reference to the police affidavits; the Court
was
mistaken in this regard (apparently as the result of what
counsel
said). In my view the magistrate's failure to give
the reasons for his belief
does not give rise, in the
circumstances of this case, to an inference, as
being the
most probable, that the magistrate had no grounds for
his
belief, in the sense the Court a
quo
had in mind. In
the
absence of a
prima faci
e case against him, the magistrate
may
at least equally well have been advised to say
no
more
than he did, or have refrained from saying more because in
his view the information given to him was confidential.
Without the direct
link between the information given to
the magistrate and the affidavits by members of the
police, erroneously accepted by the Court a quo to exist,
an analysis of the affidavits cannot really carry the matter
any further and will,serve no useful purpose. It may
,
however, be remarked that they appear in many respects to
go beyond mere opinion and beyond merely stating the existence oJ
12
a common faith in Black Consciousness between AZAPO and
SASO.
The following order is made:
1)
The appeal is allowed with
costs, such costs to include those attendant upon the employment of two
counsel;
2)
The order of the Court
a
quo
is altered to read:
"The application is
dismissed with costs, such costs to include those attendant upon the employment
of two counsel."
JANSEN, JA
VILJOEN, JA VAN HEERDEN, JA BOSHOFF, JA GALGUT, AJA
Concur