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[2008] ZAWCHC 317
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Mahomed and Another v Louw and Others (3176/2008) [2008] ZAWCHC 317 (14 November 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
REPORTABLE
COVERSHEET
Case
No.: 3176/2008
In
the matter between
MUSTAFA
MAHOMED
First
Applicant
OMAR
HARTLEY
Second
Applicant
and
PAUL
CHRISTIAAN LOUW
First
Respondent
MAGISTRATE
CORNELIUS N.O.
Second
Respondent
SUPERINTENDENT
NOEL GRAHAM ZEEMAN
Third
Respondent
DIRECTOR
OF PUBLIC PROSECUTIONS, CAPE TOWN
Fourth
Respondent
MINISTER
OF SAFETY AND SECURITY
Fifth
Respondent
Coram
SAMELA,
AJ
Judgment
by
:
SAMELA. AJ
For
the Applicants
Mr
Zehir Omar (Attorney) - 0118151720
Instructed
by
as
above
For
the Respondent
Adv
A Schippers SC - 021 4248408
Instructed
by
State
Attorney Mr G Kohler - 021 4419200
Date/s
of hearing
25/03/2008
& 20/08/2008
Judgment
delivered on
14
NOVEMBER 2008
Appeal
Judgment by full
bench
on: 30 APRIL 2010 (Case No. A228/09)
Reportable
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO.: 3176/2008
In
the matter between
MUSTAFA
MAHOMED
First
Applicant
OMAR
HARTLEY
Second
Applicant
and
PAUL
CHRISTIAAN LOUW
First
Respondent
MAGISTRATE
CORNELIUS N.O.
Second
Respondent
SUPERINTENDENT
NOEL GRAHAM ZEEMAN Third Respondent
DIRECTOR
OF PUBLIC PROSECUTIONS -
CAPE
TOWN
Fourth
Respondent
MINISTER
OF SAFETY AND SECURITY
Fifth
Respondent
JUDGMENT
DELIVERED ON 14 NOVEMBER 2008
SAMELA.
AJ
[1]
The Appellants (Mustafa Mahomed and Omar Hartley) sought an order to
set aside a search warrant issued by the Simon's Town Magistrate
on
the
24
th
January 2008 and also directing the return of the items seized by the
Respondent pursuant to the warrant.
[2]
On the 24
,n
January 2008, the third Respondent, who is a Superintendent in the
South Africa Police Service, in the company of other South African
Police Service members, acting in their course and within the scope
of their employment as employees of the fifth Respondent, entered
the
premises at 16 and 16A Axminster Street, Muizenberg, being premises
of the first and second Appellants respectively. They searched
the
premises and removed items. In both searches, the Respondents had
obtained the necessary permissions from the owners. The first
Respondent did not oppose the application. Only the second, third,
fourth and fifth Respondents opposed the application.
[3]
Mr Omar, counsel for the Appellants, argued, amongst others, that the
application for the issuing of a warrant was flawed because
the
affidavit by the third Respondent to the first Respondent was not
signed and attested. Also, that the third Respondent did
not justify
the omission of explaining to both Appellants their rights. Mr
Schippers, for the Respondents, argued, that the Magistrate
considered the application and more specifically the affidavit and
therefore the issuance of the search and seizure was justified.
He
argued further that provided that the search warrant complied with
the safeguards contained in the Criminal Procedure Act, it
was lawful
and constituted limitation on the right to privacy.
Counsel
for the Appellants and the Respondents agreed that this matter was to
be decided on papers before this Court. Mr Schippers,
for the
Respondents, told the Court that the affidavit that was placed before
the Magistrate was signed and properly attested.
He was unable to
give any explanation why the copy which was placed before this Court
was not signed and attested. Where a document
purpoting to be an
affidavid is not signed by the deponent and attested by the
commissioner of oaths as it in this matter, the
document cannot be
regarded as an affidavit.
[4]
The application which was made to the first Respondent for the
warrant was supported by an unsigned and unattested document,
purporting to be an affidavit. In the warrant issued by the first
Respondent to the third Respondent and other South African
Police
Service members, the following is recited:
"Whereas
it appears to me from information on oath that there are, at the
premises referred to in annexure "A" hereto,
being within
the District of Simon's Town, certain articles/documents as listed
and identified in annexure "B" hereto,
which are concerned
in or are on reasonable grounds believed to be concerned in the
commission or suspected commission of any one
or more of the offences
(offences mentioned and names of the persons) or which may afford
evidence of the commission or suspected
commission of the offences by
(names of persons mentioned), within the Republic of South Africa."
The
first Respondent in his affidavit, paras 5 and 6, stated that:
Para
5 "
On
24 January 2008 Superintendent Noel G
Zeeman
applied to a Magistrate at Simon's Town, in terms of the provisions
of
ss 20
and
21
of the
Criminal Procedure Act 51 of 1977
. for a
warrant for search and seizure (annexure MM1 to the founding
affidavit). That application was accompanied by an affidavit
deposed
to by Superintendent Zeeman on 24 January 2008.
Para
6
At
the time I was the Magistrate on duty in Simon's Town.
I
considered the application for the warrant and more particularly the
affidavit filed in support of it. It appeared from the information
contained in that affidavit that there were reasonable grounds to
believe that there were articles and documents under the control
of
the persons or at the premises referred to in the warrant. I
therefore
issued
the warrant for search and seizure which forms the subject of this
application."
[5]
The warrant purported to have been issued by the first Respondent in
terms of ss 20 and 21 of the Criminal Procedure Act 51
of 1977 (as
amended).
Section
20 of the Act provides that:
"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."
Section
21 (1) of the Act provides that:
"Subject
to the provisions of ss 22, 24 and 25, an article referred to in s 20
shall be seized only by virtue of a search warrant
issued -
(a)
by a Magistrate or justice, if it appears to such Magistrate of
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." (Sections 22 and 24 of the Act are not
relevant here).
Section
25 of the Act is for jurisdictional requirements which must be met
for the issuance of a search warrant. The section provides
that:
"(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 may issue a warrant
authorising 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."
The
ex
facie copy
of
the "affidavit" which the third Respondent relied on when
he made the application before court, the document was
not attested.
There was also no
viva
voce
evidence
adduced before the Magistrate.
In
Goodwood Municipality v Rabie
1954 (2) SA 404
(C) at 406 B-C the
court defined an affidavit as:
"...
a
statement
in writing sworn to before someone who has authority to administer an
oath;... [it is] a solemn assurance of fact known
to the person who
states it, and sworn to as his or her statement before some person in
authority such as a judge, or a magistrate,
or a justice of the
peace, or a commissioner of the court, or a commissioner of oaths."
Regulations
governing the administration of an oath or affirmation had been
passed by the State President (see section 10 of the
Justices of the
Peace and Commissioners of Oaths Act, 1963 (Act 16 of 1963)). Section
3(1) of the regulation provides that:
"The
deponent shall sign the declaration in the presence of the
commissioner of oaths; and
Section
4 provides that:
"(1)
Below the deponent's signature or mark, the commissioner of oaths
shall certify that the deponent has acknowledged that
he knows and
understands the contents of the declaration and he shall state the
manner, place and date of taking the declaration;
(2)
The commissioner of oaths shall-
(a)
sign the declaration and print his full name and business address
below his signature; and
(b)
state his designation and the area for which he holds his appointment
or the office held by him if he holds his appointment
ex officio."
I
am of the view that the document by the third Respondent to the first
Respondent, which was unsigned and unattested, did not comply
with
the above requirements. It follows that there was no information
placed before the first Respondent on oath. In Naidoo and
Another v
Minister of Law and Order and Another
1990 (2) SA 158(W)
at 159 1,
the court referring to s25 (1) of Act 51 of 1977 (as amended) said
that:
"//
must appear to the Magistrate from information on oath' that
reasonable grounds exist on which he must base his belief
before
authorising a warrant. Either affidavits or viva voce evidence on
oath would suffice."
In
this matter the Magistrate based his belief on an "affidavit"
before authorising a warrant. There was no viva voce
evidence on
oath before him as well. As I have indicated above, the Magistrate
based his belief on a document which he mistakenly
believed to be an
affidavit. There is no doubt that he acted contrary to s.25(1)
mentioned above Furthermore, the first Respondent
acted contrary to
section 21(1)(a) of the Criminal Procedure Act 51 of 1977 (as
amended) in authorising the warrant. This section
provides that:
"(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 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."
Ex
facie copy of the affidavit which was placed before court was a
testimony to my view that the so called affidavit did not comply
with
the requirements laid down for the administration of an oath or
affirmation which have been discussed above. Where there has
been no
proper administration of an oath or affirmation as it was the case in
this matter, I am of the view that there was no evidence
placed
before the magistrate. It was not proper for the magistrate to issue
a warrant, as it was in my view, invalid; see Toich
v The Magistrate,
Riversdale and Others
2007 (2) SACR 235
(C) at 240 e-f.
[6]
In Powell NO and Others v Van Der Merwe NO and Others
2005 (1) SACR
317
(SCA) at 340 d-g, para 59, after analysing all the relevant
authorities, the court said the following:
"
(a) Because of the great danger of misuse in the exercise of
authority under search warrants, the courts examine their validity
with a jealous regard for the liberty of the subject and his or her
rights to privacy and property;
(b)
This applies to both the authority under which a warrant is issued,
and the ambit of its terms;
(c)
The terms of a search warrant must be construed with reasonable
strictness. Ordinarily there is no reason why it should be read
otherwise than in the terms in which it is expressed;
(d)
A warrant must convey intelligibly to both searcher and searched the
ambit of the search it authorises;
(e)lf
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 overboard 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."
[7]
The court said further in Naidoo and Another v Minister of Law
and
Order
and Another (supra) at 159 E-lthat:
"...
All persons enjoy the right to determine who may and may not enter
premises which they lawfully control. If a statute
authorises another
to violate the rights I have mentioned, certain tests and
requirements must be met before such inroads can be
tolerated. -
1.
The meaning of the statute must be clear.
2.
If the statute is unclear, it must be interpreted in favour of the
individual.
3.
Certain facts, which are often described as jurisdictional facts,
must exist before a warrant can be issued.
4.
The warrant must be unambiguous and confer no greater powers than
those authorised by the statute.
5.
Once issued by the competent judicial officer, no person executing
the warrant can widen its scope, even if the statute authorises
wider
powers than those in fact included in the warrant.
I
believe what I have said is in concert with what Tindall AC J said in
Minister
of Justice and Others v Desai NO
1948
(3) SA 395
(A) at 403.
See
also
Mahomed
v National Director of Public Prosecutions and Others
[2005] ZAGPHC 90
;
2006
(1) SACR 495(W)
at 501 I - 502 a-g. Compare
Mistry
v Interim Medical and Dental Council of South Africa
1998
(4) SA 1127
(CC)at1142E-1143A.
[8]
The third Respondent in his answering affidavit said the
following:
"para
17 I was accompanied by two uniformed police officers. I banged on
the door of the premises where the First Applicant
stays, as
indicated in the search warrant. The Applicant appeared at the
window. I showed him my appointment certificate and instructed
him to
open the door. He looked at the appointment certificate as if he was
studying it.
para
18 Thereafter, the First Applicant opened the front door. I told him
that I am a member of the police and that I had a search
warrant to
conduct a search of the premises. At that time his father was also
present. They were told why the police were there.
A copy of the
search warrant was shown to both of them. They both indicated that
they were not interested in having a copy of the
search warrant and
declined to accept a copy....
para
22 I was also involved in the search of the premises at 16A
Axminster Street. These premises are occupied by the Second
Applicant who is married to the First Applicant's sister. As is in
the case of the First Applicant, the search warrant was shown
to the
Second Applicant, before we commenced with the search of that
property. However, nothing was found at the Second Applicant's
property."
The
above extracts indicate that the third Respondent did not advise the
Applicants of their constitutional rights as was expressed
in
Mohamed
case
,
mentioned above at 520 a and c, where the court said:
"...
Everyone faced with this type of warrant, including attorneys, are
not expected to know the law. ... The search should
have commenced
only after the Applicant was advised of her rights. This way the
protection afforded by the Act will be effective."
I
am of the view that the document placed before the Magistrate which
purported to be an affidavit, was not an affidavit. Consequently,
the
Magistrate mistakenly issued a warrant of search and seizure. As I
have discussed above, the search warrant and seizure was
invalid and
therefore unlawful.
[9]
Courts have held that even where oath was not properly administered,
as opposed to where not administered at all, it has been
held that
there is no evidence see Sv Naidoo
1962 (2) SA 625
(A). Furthermore,
it has been held that where children were not properly warned or
admonished to speak the truth, there is also
no evidence at all S164
(1) of the Act provides that. "Any person who, from ignorance
arising from youth, defective education
or other cause, is found not
to understand the nature and import of the oath or the affirmation,
may be admitted to give evidence
in criminal proceedings without
taking the oath or making the affirmation: Provided that such person
shall in lieu of the oath
or affirmation, be admonished by the
presiding judge or judicial officer to speak the truth, the whole
truth and nothing but the
truth." In Sv N
1996 (2) SACR 225
(C)
at 230 (d) the court said that:
"The
testimony of a witness who has not been placed under oath properly,
has not made a proper affirmation or has not properly
been admonished
to speak the truth, as provided for in the Act, lacks the status and
character of evidence." Consequently,
the admission of evidence
given other than after an oath was duly taken or an affirmation or
admonition to speak the truth does
not elevate it to a status of
evidence. In my view, an irregularity occurs which constitutes a
failure of justice. See Sv V
1998 (2) SACR 651
(C).
The
Applicants are entitled to the costs of this application. They have
requested that costs be awarded against the first, second,
third,
fourth and fifth Respondents. I am of the view that the Applicants
have not established sufficient facts to justify such
an order
against the second and fourth Respondents. The first Respondent did
not oppose this application and indicated that he
would abide by the
decision of this court. No costs will be awarded against the first
Respondent.
[11)
In the result, the following order is made:
The
decision of the first Respondent of 24 January 2008 to authorise the
issue of a search warrant, annexure "MMI" to
the
Applicants founding affidavit, is set aside, as is the said search
warrant;
the
third and fifth Respondents are directed forthwith to return to the
Applicants all the articles/items seized by members of
the South
African Police Service at 16 Axminster Street, Muizenberg, on the
24'" January 2008 and on or about 28 November
2008.
The
third Respondent is directed within fourteen (14) days of the making
of this order to furnish the attorneys of record of the
Applicants
with an inventory of all the articles seized by members of the South
African Police Service at 16 Axminster Street,
Muizenberg, on the
24
th
January 2008 and on or about 28 November 2008.
The
third and fifth Respondents are ordered to pay the costs of this
application and also costs incurred by the Applicants on
7
lh
March
2008.
SAMELA,
AJ