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[2008] ZAWCHC 122
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Van der Merwe and Others v Additional Magistrate, Cape Town and Others (5880/2008 (A)) [2008] ZAWCHC 122; 2010 (1) SACR 470 (C) (24 December 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
Reportable
Case
No.: 5880/2008 (A)
In
the matter between:
GARY WALTER VAN DER
MERWE First Applicant
MONIQUE VAN DER MERWE Second
Applicant
FERN
CAMERON (formerly VAN DER MERWE Third Applicant
ALAN
RAYMOND FANAROFF Fourth Applicant
TANTCO
GLOBAL (PTY) LTD Fifth Applicant
EXECUTIVE
HELICOPTERS (PTY) LTD Sixth Applicant
EXEL
AVIATION (PTY) LTD Seventh Applicant
AIRCRAFT
SUPPORT (PTY) LTD Eight Applicant
MADIBA
AIR AND SEA (PTY) LTD Ninth Applicant
ZONNEKUS
MANSION (PTY) LTD Tenth Applicant
SUMMER
DAZE TRADING 712 (PTY) LTD Eleventh Applicant
WESTSIDE
TRADING (PTY) LTD Twelfth Applicant
SA
BARTER (PTY) LTD Thirteen Applicant
TWO
OCEANS AVIATION (PTY) LTD Fourteenth Applicant
HELIBASE
(PTY) LTD Fifteenth Applicant
and
THE
ADDITIONAL MAGISTRATE, CAPE TOWN First Respondent
WILHELMINA
ANNA KOTZE Second Respondent
COLIN
ANDERSON GILLESPIE Third Respondent
THE
MINISTER OF SAFETY AND SECURITY Fourth Respondent
THE
COMMISSIONER: SOUTH AFRICAN
REVENUE
SERVICE Fifth Respondent
THE
ADDITIONAL MAGISTRATE, BELLVILLE Sixth Respondent
THE ADDITIONAL MAGISTRATE,
RANDBURG Seventh Respondent
JUDGMENT: 24 December 2008
Davis J and Saldanha J
Introduction
[1] This application concerns the
validity of certain search warrants and search and seizure
operations which were conducted pursuant
to search warrants during
2008.
[2] Much of the background to these
operations is not disputed and can perhaps best be gleaned from
second and fourth respondents'
answering affidavit deposed to by
Superintendent Kotze, a member of the Commercial Branch of the South
African Police Services.
She avers that, on
4
December 2007, her
unit received a request from the office of the Director of Public
Prosecutions for assistance in a tax investigation.
Subsequently,
she was appointed as the investigating officer. The case concerned a
criminal investigation relating to charges
against first applicant,
the general manager of sixth and tenth applicants and the director
of the eight, ninth, thirteenth and
fifteenth applicants with regard
to violations of legislation of income tax and value added tax
('VAT') as well as in respect
of exchange control and civil aviation
violations.
[3] During the course of her
investigations she obtained a comprehensive affidavit from the third
respondent, Mr Colin Gillespie,
criminal investigator in the employ
of SARS. She also prepared her own affidavit with a view of
obtaining search warrants for
various premises connected to
applicants.
[4] Three separate sets of search
warrants were generated in respect of premises in the Western Cape;
one for Zonnekus, being
the home of first applicant, secondly one at
Helibase, being business premises of various of the applicants, and
thirdly, one
for Royal Ascot, the premises of fourth applicant. In
addition, as Ms Kotze states in her affidavit, it was decided to
apply
for a search warrant for the premises of applicants'
accountants / auditors, Messrs Carrim, Maritz & Associates,
situated
in Midrand and therefore located within the jurisdiction of
Randburg Magistrates Court. All four applications for warrants were
prepared on essentially the same grounds.
[5] Superintendent Kotze states in
her affidavit that she traveled to Randburg and met with seventh
respondent, Magistrate Mkhari
on 25 February 2008. She handed Mr
Mkhari the application and explained the reasons for bringing the
application in his jurisdiction.
On 27 February 2008 Mr Mkhari
indicated that he required more time to come to a final decision. On
the 28 February 2008 he signed
and authorised the Randburg search
warrant.
[6] On the 6 March 2008 the Chief
Magistrate Cape Town, Mr Maku informed Superintendent Kotze that Mr
Lekuleni, an additional
magistrate on his staff, had been appointed
to deal with the matter.
[7] According to Superintendent
Kotze, she met with Magistrate Lekuleni on 6 March 2008 and
explained the nature and extent of
the investigation. He indicated
that he would like to take his time to study the application and
that they should return the
following day, 7 March 2008. Mr Lekuleni
raised certain procedural difficulties and asked questions with the
draft warrants but
on the 7 March 2008 he finally issued them.
[8] On the 10 June 2008 a further
search warrant was issued regarding the Bellville premises of Carrim
& Maritz and Associates.
In this case, the warrant was
considered by the senior Magistrate, Bellville, being sixth
respondent. According to Superintendent
Kotze, she explained the
nature of the warrants and the complicated matter upon which the
need for warrants had been based. The
magistrate, Mrs Du Toit,
carefully went through the documentation and spent some time
considering the application, prior to authorising
the warrant.
Applicants Case
[9] In assailing the validity of
these warrants, applicants base their challenge on two central
arguments:
1. in the case of four of the five
impugned search warrants there was no mention of the suspected
offences that were under investigation;
2. the various magistrates failed to
apply their mind to the application for such warrants and
accordingly the warrants were
fatally defective in law.
In
addition, applicants contend that other than reasons provided for by
Magistrate Lekuleni, there were no reasons provided by
any of the
magistrates for their decision. None of these magistrates filed
affidavits in this application. Thus, applicants contend
that the
court had not been informed by these magistrates what they had read
in preparation for their various decisions nor what
they considered
prior to issuing the relevant warrants. Any evidence provided by
Superintendent Kotze concerning the decision
making process of the
various magistrates stood to be rejected as hearsay evidence.
A description of the warrants
[10]
In essence the three warrants for Zonnekus, Helibase and Royal
Ascot, which were issued by first respondent, take
a
similar form.
[11] Each warrant consists of one
page and then refers to three Annexures A, B, C. The heading of the
one page search warrant
states:
"SEARCH WARRANT
[Section 20, 21, and/or 25
Criminal Procedure Act, (Act 51 of 1977)]
To persons as listed in "Annexure
A" hereto"
Below the heading is a box in which
a preamble to the operative part of the search warrant is contained
and it refers to articles,
'to wit, as per annexure "B"
hereto. Below that are 7 boxes marked (a) - (h), which each have and
"X" marked
next to the box. Immediately below those is the
continuation of the preamble which states:
"and which is in the
possession of/under the control of/upon or at a premises at/upon the
person of Gary Van der Merwe, Monique
Van der Merwe, Fern Van der
Merwe at Zonnekus Mansions, Chandlers Close, Woodbridge Island,
Milnerton, Cape Town"
The
operative part of the search warrant then states:
"THESE ARE THEREFORE to
authorise you to search during the day time * the identified
person/to enter and search the identified
premises and to search any
person found on or at such premises and to direct you to seize the
said articles as described in "Annexure
B" hereto if found
(including inspecting, searching and seizing computer-related
objects in the manner authorised in "Annexure
C" hereto),
and to * deal with it according to law/bring it before me to be
dealt with according to law".
The first respondent did not delete
any part of the pro-forma search warrant. For example, at the end of
the operative part of
the search warrant, he had a choice whether to
delete either
"deal
with it according to law"
or
"bring it
before me to be dealt with according to law".
[12] The three Annexures A, B, and C
were attached to the printed warrant. Annexure "A"
consists of a list of named
individuals who are authorised by the
search warrant to conduct the search. Annexure "B" lists
the articles which may
be seized during the search. There are 18
separate items so set out.
As stated above, the suspected
offences that were under investigation are not mentioned at all in
the 18 items. Similarly, the
nature of the investigation is not
described at all.
Despite the absence of any detail as
to the nature of the investigation reference is made to
documentation
"relevant
to the investigation"
('ondersoek')
in terms 13,15,16,17 and 18 of Annexure B.
For example, item 15, which does not
limit the search to the undefined
"ondersoek,
states:
"Enige stawing van betalings
gemaak tussen die volgende
individue
Gary van der Merwe
Monique van der Merwe Robert A
van der Merwe Karin G van der Merwe Fern van der Merwe Alan Fanaroff
Sean Pautz Gary Fox
William Olmstead".
Item 17, like item 15, is extremely
wide. It permits seizure of any information relating to the
lifestyles of the named individuals
insofar as it is relevant to the
indeterminate, and indeed open-ended, investigation
('ondersoek').
Item
18 refers, in general, to any electronic computer data
"wat
wel of moontiik betrekking net op die indersoek'.
Annexure C authorises the manner of
inspecting, searching and seizing computer-related objects. Annexure
"C" sets out
4 methods of searching and seizing. Item 4 of
Annexure "C" also has references to:
"...all information which
has a bearing, or might have a
bearing, on the investigation in
question".
It
also permits for searches
"at
a location removed from the premises".
[13] The Randburg warrant, which was
issued in 28 February 2008, als consists of one page and makes
reference to Annexure A and
E Annexure A refers to the three police
officers who are authorised 1 conduct the search. Annexure B
consists of thirteen items
which set oi 'dokumente en bewysse
relevant tot die ondersoek'. Applicants point oi there is no
identification of the suspected
offences under the investigatior
[14] The final search warrant, being
the search warrant authorising the searc of the Bellville premises
of Carrim & Maritz
Associates, again takes th form of a printed
page. Annexure A specifies the officers from Soul African Police
Services and the
official from SARS who are authorised t attend to
the search. Annexure B consists of 6 items which detail th articles
which may
be seized. Applicants contend, in particular, that itei 5
of Annexure B is excessively wide in scope:
Enige stawing van betalings
gemaak tussen die volgend individue
Gary van der Merwe
Monique van der Merwe
Robert A van der Merwe
Karin G van der Merwe
Fern van der Merwe
Alan Fanaroff
Sean Pautz
Gary Fox William Olmstead
[15] The major difference, however,
between this warrant and the other warrants is the inclusion of
Annexure C. In this Annexure
a detailed description is provided of
the reasonable grounds which the investigating authorities consider
exist to sustain charges
of income tax and VAT fraud against various
of the applicants. Not only are particular sections of both the VAT
Act and the Income
Tax Act specified in Annexure C, but the manner
in which it is alleged the fraud was conducted is also described in
some detail.
[16] With this description of the
various search warrants it is possible to turn to the application.
Before dealing with the first
of the major challenges launched by
applicant, namely its contention that the offences require
specification in the warrant,
an in
limine
point must be
analysed.
Jurisdiction of this court in
respect of the Randburg warrant
[17] The Randburg search warrant was
executed on 10 March 2008 at Carrim & Maritz in Midrand,
Gauteng.
[18] The challenge to the validity
of the Ranburg Carrim & Maritz search warrant is contained in an
application by the applicants,
which included challenges - on
similar grounds - to three search warrants issued in Cape Town and
one in Bellville, all four
of which were executed within the
jurisdiction of this Court.
[19] The investigation and
investigating officer are based in the Western Cape. The criminal
investigation underlying the Randburg
and other search warrants was
registered under a Cape Town Commercial Branch case number CAS
3/12/2007.
[20] The investigating officer
traveled from Cape Town to Gauteng to meet the magistrate of
Randburg so that she could hand him
the application for the search
warrant and explain the reasons for applying in that jurisdiction.
[21] It is accepted that the basis
of the challenge to the Randburg search warrant is almost in
identical terms to that of the
challenge to the three Cape Town
search warrants.
[22] It must also be accepted that
at the hearing none of the respondents took issue with this Court
deciding on the validity
of the Randburg search warrant. In
addition, the Randburg Magistrate, the seventh respondent did not
object to this Court's jurisdiction.
Mr Hodes, who appeared with Mr
Katz on behalf of applicant, submitted that the inescapable
inference is that the Randburg Magistrate
has, at the very least by
implication, consented to the jurisdiction of this Court.
[23] In support of this contention,
applicants rely upon a judgment in
Permanent
Secretary, Department of Welfare. Eastern Cape, and Another v Ngxuza
and Others
2001
(4) SA 1184
(SCA), at para [22] where Cameron JA stated:
"The objection in any event
has no substance. First, this is no ordinary litigation. It is a
class action. It is an innovation
expressly mandated by the
Constitution. We are enjoined by the Constitution to interpret the
Bill of Rights, including its standing
provisions, so as to 'promote
the values that underlie an open and democratic society based on
human dignity, equality and freedom'.
As pointed out earlier we are
also enjoined to develop the common law -which includes the common
law of jurisdiction
-
so as
to 'promote
the spirit, purport and objects of the Bill of Rights'.
This
Court has in the past not been averse to developing the doctrines
and principles of jurisdiction so as to ensure rational
and
equitable rules.
In
Roberts
Construction Co Ltd v Willcox Bros (Ptv) Ltd
this Court held, applying the common-law doctrine of cohesion of a
cause of action
fcontinentia
causae)
,
that
where one court has jurisdiction over a part of a cause,
considerations
of convenience, justice and good sense justify its exercising
jurisdiction over the whole cause.
The
partial location of the object of a contractual performance (a
bridge between two provinces) within the jurisdiction of one
court
therefore gave that court jurisdiction over the whole cause of
action. The Court expressly left open the further development
and
application of the doctrine of cohesion of causes. The present seems
to me a matter amply justifying its further evolution.
The Eastern
Cape Division has jurisdiction over the original applicants and over
members of the class entitled to payment of
their pensions within
its domain. That, in my view, is sufficient to give it jurisdiction
over the whole class, who, subject
to satisfactory 'opt-out'
procedures, will accordingly be bound by its judgment."
[24] The problem with both this case
and the earlier one relied upon to justify an extension of
jurisdiction, being
Roberts
Construction LTD v Willcox Bros (Ptv) Ltd
1962 (4) SA 326
(A), is that both cases are clearly distinguishable.
A failure to exercise jurisdiction in
Ngxuza
w
orked injustice
to the applicants. In
Roberts,
the cause of action was significantly located in the Orange Free
State, which court therefore had jurisdiction. For this reason,
an
application of the
continentia
causae
principle
was justified in these cases see LAWSA Volume 11 para 553.
[25] In the present dispute, both
the site of the power of the permission (the authorising magistrate)
and the search (Midrand)
fall outside this court's jurisdiction.
Absent national jurisdiction, this court cannot decide a direct
question concerning the
invalidity of an act performed by a Randburg
magistrate. While section 19 (1) (b) of the Supreme Court Act 59 of
1959 does extend
a provincial division's jurisdiction, it does so
only when the court has jurisdiction over the 'cause'. In the
present dispute,
the cause is a discrete one, the Randburg warrant,
over which this court has no jurisdiction. Furthermore, a mere
submission
by the parties to jurisdiction cannot be sufficient to
confer jurisdiction.
S
v Absolom
1989 (4)
SA 154
(A).
The omission of the suspected
offences that are under investigation
[26] Mr Hodes, relied heavily on the
majority judgment in
Thint
(Ptv) Ltd v National Director of Public Prosecutions and others
:
Zuma and another
v National Director of Public Prosecutions and others
[2008] ZACC 13
;
2008 (2) SACR 421
(CC). In this case the validity of various search
warrants were placed in issue. The warrants had been issued in terms
of section
29 (5) and (6) of the National Prosecuting Authority Act
32 of 1998 ('NPA').
[26] In dealing with the validity of
these warrants, Langa CJ noted that the NPA provided considerable
safeguards which insured
that the infringement of a person's right
to privacy extended no further than was reasonably necessary in the
circumstances.
A judicial officer was required to exercise his/her
discretion to authorise a search in a manner which provided
protection for
the individuals right to privacy. Further, once the
decision to issue the warrant had been made, the relevant judicial
officer
was required to ensure that the warrant was not excessively
general nor overbroad and that its terms were 'reasonably clear'.
The Chief Justice went on to say that there were further elements of
protection for a party being so searched. A right to privacy
may be
vindicated by a reviewing court which can strike down overly broad
warrants and order the return of objects seized pursuant
thereto.
Finally, the criminal trial must be fair and an accused person was
entitled to object to any evidence of conduct that
may render that
trial unfair. See para 79 of the judgment.
[27] Turning to the role of a
judicial officer in the issuing of a search warrant, Langa CJ
referred to the earlier
dictum
of the
Constitutional Court in
South
African Association of Personal Injury Lawyers v Heath and others
2001 (1)SA 883 CC at para 34:
"The performance of such
function ordinarily call for the qualities and skills required for
the performance of judicial functions
-independence, the weighing up
of information, the forming of an opinion based on information, and
the giving of a decision on
the basis of a consideration of relevant
information. The same can be said about the searching of search
warrants, where the
Judge is required to determine whether grounds
exist for the invasion of privacy resulting from searches."
[28] In performing the role of
considering a challenge to the issue of the search warrant, a court
was required to consider two
jurisdictional facts for the issue of a
search warrant: the existence of a reasonable suspicion that a crime
has been committed
and the existence of reasonable grounds to
believe that objects connected with the investigation into the
suspected offence may
be found on the premises. See para 91
[29] Flowing from these
jurisdictional requirements, Langa CJ described the obligations
imposed upon investigators seeking search
warrants as follows:
"This approach, in a
nutshell, may be described as follows: Investigators should restrict
their search, examination, and
seizure to those classes of items
that they have reason to believe might have a bearing on the
investigation in question. That
reason may flow from prior knowledge
of the investigation, or it may occur to an investigator during the
course of the search
or emerge during a conversation with persons at
the searched premises, but a reason they must have. That reason,
moreover, should
also be sufficiently plausible to outweigh the
countervailing risk that the item might be irrelevant to the
investigation and
examining it would amount to an invasion of
privacy. Section 29 should not be interpreted to authorise the
examination or seizure
of an item in circumstances where there is no
reason to believe that it might have a bearing on the
investigation."
para
146
[30] This analysis led Langa CJ to
conclude that the most relevant principle in determining whether a
search warrant that is lawful
was that of intelligibility. Briefly
stated, this principle provides that
'a
warrant must convey intelligibly to both searcher and searched the
ambit of the search it authorises',
para
151. Langa CJ then sets out the test to be satisfied before a
warrant passes the intelligibility principle as follows:
"[f]/?ese
warrants
must be 'reasonable intelligible', in the sense that they are
reasonably capable of being understood by the reasonably
will-informed person who understands the relevant empowering
legislation and the nature of the offences under investigation."
para 154
[31] Based on this analysis, Langa
CJ held that the following was required for a valid warrant in terms
of section 29 NPA:
"A s 29 warrant should state
at least the following, in a manner that is reasonably intelligible
without recourse to external
sources of information: the statutory
provision in terms whereof it is issued; to whom it is addressed;
the powers it confers
upon the addressee, the suspected offences
that are under investigation; the premises to be searched; and the
classes of items
that are reasonably suspected to be on or in that
premises. It may therefore be said that the warrant should itself
define the
scope of the investigation and authorised search in a
reasonably intelligible manner,
"para
159.
Mr Hodes conceded that the case in
Thint,
supra
concerned
the proper interpretation and application of section 29 of the NPA
Act as opposed to its constitutional validity or
the interpretation
of section 20 of the Criminal Procedure Act of 51 of 1977 (' the
Act'), being the applicable provision in
the present dispute.
However, he submitted that the approach adopted in
Thint,
supra
provides
guidance for the process of interpretation and application which is
necessary in terms of section 39 (2) of the Republic
of South Africa
Constitution Act 108 of 1996 ('the Constitution') to parse the
particular provisions of section 20 of the Act.
[32] In this connection, Langa CJ
observed that the common law principle of intelligibility needed
clarification. It therefore
fell to the Constitutional Court to give
it more concrete content and to determine what it requires
specifically when apply to
section 29 warrants. He went on to say:
"As this constitutes a
development of the common law, the content we give it must promote
the spirit, purport and objects
of the Bill of Rights,
"(jpara
151)
Respondents' case
[33] Mr Le Grange, who appeared
together with Mr Masuku on behalf of second and fourth respondents,
made much of the fact that
the present impugned search warrants were
issued in terms of section 20 of the Act and not under the NPA.
Further, he referred
to a footnote which appears in the majority
judgment of Langa CJ in
Thint
supra:
"There is no reason to hold
that this intelligibility principle should impose exactly the same
requirement for all search
and seizure warrants, no matter the
statutory provision in terms whereof they are issued"
footnote
112 at487
[34] Mr Le Grange emphasised two
mechanisms contained in section 29 NPA which were designed to inform
the searched person about
the scope of the authorised search.
Section 29 (9) (a) provides that 'immediately before commencing with
the execution', a copy
of the warrant must be provided to the
searched person. Section 29 (9) (b) requires the investigator 'to
supply such a person
at his or her request with particulars
regarding his/her authority to execute such a warrant'.
[35] Mr Le Grange submitted that
these provisions placed a duty on investigator to answer questions
about the scope of the authorised
search that a searched person may
wish to ask in order to 'to enable the searched person who cannot
read or understand complexed
legal language to gain some idea of the
ambit of the search to which she had been subjected'. Furthermore,
the person executing
the warrant had to hand to the searched person
a copy of the warrant before commencing with the execution.
[36] By contrast, section 21 (4) of
the Act provided that the person undertaking the search was obliged
to hand a copy of the
warrant 'to any person whose rights in respect
in any search or article issued under the warrant have been
affected' but only
after the execution of the search warrant.
[37] Mr Le Grange therefore
submitted that this distinction revealed the reason why a section 29
NPA warrant would require a reference
to the suspected offence as
opposed to a search warrant authorised under the Act. Under the NPA,
the searched person had a right
to gain an idea of the ambit of the
search prior to its commencement. That was not the case with a
search undertaken in terms
of sections 20 and 21 of the Act.
[38] Furthermore Mr Le Grange sought
to buttress his argument by way of reliance on a judgment of Tindall
J (as he then was) in
Pullen
NO and others v Waia
1929 TPD 838
, in particular the following
dictum:
"It seems to me highly
desirable that a search-warrant ought to mention the alleged
offence, and if I could find a satisfactory
reason for holding that
this Court has the power to lay down that mention of the offence is
essential to the validity of a search
warrant I should willingly lay
down such a rule. It is desirable that the person whose premises are
being invaded should know
the reason why; the arguments in favour of
the desirability of such a practice are obvious. But in my
opinion there is nothing
in seen 49 which justifies the Court in
laying down such a rule. The use of the words "any such thing"
in the sentence
in the section which speaks of the warrant as a
"warrant directing a policeman to search such premises and
seize any such
thing" cannot be construed to indicate anything
more than that the warrant must identify the things to be seized.
The
section does not indicate in any way that the articles must be
identified by reference to the offence,
"at
849 Thus, Mr Le Grange contended that, while it might be desirable
that a search warrant under the Act ought to mention
the alleged
offence/s, the approach adopted by Tindall J continued to request
the legal requirements pertaining to validity of
a search warrant
issued in terms of the Act. A further authority relied upon by
second and fourth respondents was a judgment
of Bertelsmann J in
Bennett and Others
v Minister of Safety and Security and Others
2006 (1) SACR 523
(T) where the court adopted an extremely generous
approach to warrants which it had described as having a 'huge
compass'. The
point of reliance on this judgment was to
emphasize the importance of
considerations which allow due process principles to be trumped by
the imperative of crime control.
Evaluation
[39]
In our view, the majority judgment in
Pullen
hardly represents as convincing an assertion of the common law
position as contended for by respondents. Significantly, there
was a
minority judgment by De Waal JP which referred to an earlier
decision Innes CJ in
Hertzfelder
v
Attorney
General
1907 TS
403
in which the court had held that a warrant was bad if it had not
specified the crime alleged to have been committed by the applicant.
Hertzfelder
supra
at
405. Whereas Tindall J had accepted that his approach contradicted
that of Innes CJ (at 850), he justified this difference
by stating:
"In that case, however
counsel for the respondent admitted that the warrant was invalid and
the question was not argued."
This
conclusion cannot be sustained after a careful reading of the
judgment in
Hertzfelder,
a point made clearly by De Waal JP in his minority judgment. As De
Waal JP said at 864 about the relevant legislation:
"If the legislature had
intended that upon the passing of the 1917 Act the rule as laid down
in
Hertzfelder's
case that a search warrant was bad which had not specified a crime
alleged to have been committed, was no longer to be observed,
it
would have manifested that intention expressly and in clear
language."
[40] Viewed accordingly therefore,
the precedent invoked by Mr Le Grange by way of the majority
judgment of Tindall J in
Pullen
was predicated on a very weak jurisprudential foundation.
[41] The contrary conclusion, to
which we have arrived, is supported by the case law which has
developed the applicable common
law to search warrants and which
principles are set out eloquently by Cameron JA in
Powell
NO and others v Van Der Merwe NO and others
2005 (1) SACR 371
(SCA) at para 59:
"These cases establish this:
(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 right 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) If a warrant is too general,
or if its terms go beyond those the authorising statute permits, the
Courts will refuse to recognise
it as valid, and it will be set
aside.
(f) It is no cure for an
overbroad warrant to say that the subject of the search knew or
ought to have known what was being looked
for: The warrant must
itself specify its object, and must do so intelligibly and narrowly
within the bounds of the empowering
statute."
[42] If there was any doubt about
the need to include a reference to of the alleged offence in order
to convey intelligibly to
both searcher and searched the ambit of
the search it authorises, then the Constitution provides a more than
satisfactory reason
for so holding, the absence of which reason
resulted in Tindall J not converting a principle which he considered
to be highly
desirable into a rule of law. Van der Westhuizen J
clearly states the point in
Magaiane
v Chairperson, North West Gambling Board
[2006] ZACC 8
;
2006 (5) SA 250
(CC) at para 74:
"Exceptions to the warrant
requirement should not become the rule. A warrant is not a mere
formality. It is the method tried
and tested in our criminal
procedure to defend the individual against the power of the state,
ensuring that police cannot invade
private homes and businesses upon
a whim, or to terrorise. Open democratic societies elsewhere in
the world have fashioned
the warrant as a mechanism to balance the
public interest in combating crime with the individual's right to
privacy. The warrant
guarantees that the State must justify and
support intrusions upon individuals' privacy under oath before a
neutral officer of
the court prior to the intrusion. It furthermore
governs the time, place and scope of the search, limiting the
privacy intrusion,
guiding the State in the conduct of the
inspection and informing the subject of the legality and limits of
the search. Our
history provides much evidence for the need to
adhere strictly to the warrant requirement."
[43]
A further important aspect in this connection is the imperative to
read our law within the context of the history of this
country.
Over a long period prior to the attainment of constitutional
democracy, there was great abuse in the exercise of authority
by the
police, including with regard to search and seizure operations.
While courts must be careful to ensure that mechanisms
that they
fashion to protect the rights of citizens should not constitute
onerous impediments upon the police so that the latter
are
disempowered from the imperative of crime control, nonetheless our
history indicates that there is always a danger of abuse
in the
exercise of powers granted to a police authority. The courts must be
vigilant to be the custodians of accountability and
balance the
demands between due process and crime control. It is this
demonstrable lack of balance that
characterises the approach in
Bennett
,
supra,
which
should thus be followed.
[44] That the common law would
impose independent obligations on the magistrate empowered to
authorise the warrant is not surprising.
It flows directly from the
ancient principle of
nemo
iudex in sua causa.
A
search warrant impacts significantly on the rights of the
individual. The idea that the authority to search cannot simply be
asserted by the agency which has a direct interest in the outcome of
the warrants validity necessitates the evaluation task given
to the
magistrate. This mechanism is not based upon a distrust of police
but rather it is a clear assertion of a key component
of fairness:
no one should judge her own cause. The function of a magistrate in
chambers in deciding whether to grant a search
warrant is thus not
an exercise of a rubber stamp. It is an exercise of a judicial
discretion to regulate the nature and extent
of the search and
seizure permitted by any warrant which, after due consideration may
be issued by him or her. Not only does
this task require that the
warrant should be finetuned to ensure that it is no more invasive
than is absolutely necessary but
it is critical that in exercising
his/her discretion, the magistrate should consider the level of
specificity required in order
to render the warrant intelligible.
[45] Mr Le Grange sought to draw a
distinction between the role of the prosecution who determine the
change and the police who
investigate. The point of this distinction
was to argue that to insist that the warrant contains the offences
for which the suspect
may be charged was to conflate the role of
police, who wish to conduct a search, with the prosecution who frame
the charges at
a later stage.
[46] This argument misses the
implication of the wording of section 20 of the Act. Section 20(a)
authorises the search and hence
the seizure of anything concerned in
or, on reasonable grounds is believed to be concerned in, the
commission or suspected commission
of an offence. Likewise section
20 (b) and (c) employ the word 'offence' as the operative word in
the section. Thus, at this
stage the offence / suspected offence is
critical to the operation of the entire section, a provision which
authorises activity
before a precise charge are framed. As Hiemstra
Criminal Procedure
(looseleaf) at page 2-8 observes 'there must be clarity as to which
offence is suspected.'
[47] The outcome of the task depends
on the nature of the investigation. In some cases, it may be
difficult to craft the warrant
to do more than provide a general
framework of the alleged offences. However in the present case,
aided by the expertise of the
SARS, it was more than possible for
the magistrate to demand that necessary amendments be made to the
warrants. The magistrates
had available a detailed affidavit by
third respondent who specified the offences which allegedly had been
committed by various
of the applicants and which would have allowed
for the necessary inclusion in the warrant of the specified
offences. Annexure
C to the warrant directed at the Bellville
premises of Carrim, Maritz & Associates illustrates very
powerfully how sufficient
information could have been included so as
to comply with the intelligibility principle.
[48] That conclusion raised the
question of the attack on the warrant of 10 June 2008. While
paragraph 5 of Annexure B to that
warrant which authorises the
search of 'enige stawing van betalings gemaak tussen die volgende
individue' is wide, I do not consider
that the warrant reading with
Annexure C authorises a 'general ransacking'. The warrant and
annexure B must be read together
with Annexure C. The basis of the
case against applicants now becomes clear. Accordingly, the target
of the investigation launched
by second and fourth respondent is
apparent as is the purpose of the search.
[49] Mr Hodes submitted that no
reasons were provided by the magistrate who so authorised this
particular warrant and accordingly
it stood to be declared invalid.
In his view, there was no clarity as to the basis upon which the
magistrate had applied her
mind in the issuing of such a warrant.
[50] However in this case, the
seventh respondent enjoyed the benefit of the detailed affidavit of
third respondent which specified
the case against applicants.
Annexure C provided further details thereof. On the basis that
Annexure C was part of the warrant
which was issued by seventh
respondent, it is difficult to see the plausible basis upon which it
can be alleged that a magistrate,
in considering whether to grant
such a warrant, could be said to have decided, without applying her
mind, having been clearly
appraised of all of these facts and having
included within the warrant the relevant Annexure C. If the function
of the magistrate
is to scrutinize the case made out and ensure, in
particular, compliance with the intelligibility principle, we
consider that
no adequate case has been made out by applicants to
attack successfully the validity of this warrant. Given the approach
adopted,
we do not need to deal with the arguments concerning the
alleged hearsay of Superintendent Kotze's description of the
decision
making process of the magistrates.
Preservation Order
[51] Mr Hodes submitted that a
conditional counter application had been launched by fourth and
fifth respondent on 28 November
2008, that is four days prior to the
hearing of the case for a counter application. Applicants required
an opportunity to file
answering papers in opposition to this
application. Mr van Rooyen, who appeared on behalf of the fifth
respondent, submitted
that the counter application was not strictly
necessary because, even without such an application, the court could
grant a preservation
order, sufficiently tailored to protect the
interest of all parties. The difficulty with this submission is that
a specific counter
application was launched by respondents. It is in
the interests of fairness therefore, that applicants be given some
time to
answer the case so brought. For this reason, the court will
not decide the matter of preservation order in this judgment but
will deal with the application at a date to be arranged with
counsel.
Costs
[52] Although the court has only
upheld three of the five challenges, applicants have been
substantially successful and therefore
are entitled to a favourable
costs order
The Order
[53] For these reasons the
following order is made:
1. The decision of the Additional
Magistrate, Cape Town, Mr James Lekuleni ("the first
respondent"), on Friday, 7 March
2008 to issue search warrants
in respect of Zonnekus, Chandos Close, Woodbridge Island, Milnerton,
Cape Town ("Zonnekus"),
Helibase, off Martin Hammerschlag
Way, Culemborg, Cape Town ("Helibase") and 110 Starfish
Crescent, Coral Grove, Royal
Ascot, Cape Town ("Royal Ascot")
("the search warrants") and the issue of these search
warrants are declared
invalid and are set aside;
The applications in respect of the
search warrant issued by sixth respondent of the Randburg premises
of Carrim and Maritz and
the search warrant issued by seventh
respondent of the Bellville premises of Carrim and Maritz are
dismissed
The counter application for a
preservation order is postponed to a date to be arranged with the
Registrar.
Fourth and fifth respondents are
ordered to pay the applicants' costs of suit, including the wasted
costs of the postponement
of the matter on 11 April 2008, and those
occasioned by the employment of two counsel.
JUDGE
D M DAVIS
JUDGE
V SALDANHA