S v Jacobs (CA& R 70A/07) [2007] ZANCHC 56 (28 September 2007)

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[2007] ZANCHC 56
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S v Jacobs (CA& R 70A/07) [2007] ZANCHC 56 (28 September 2007)

Reportable: Yes /
No
Circulate to
Judges: Yes / No
Circulate
to Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
No: CA& R 70A/07 Date heard: 12/02/2007
Date
delivered: 28/09/2007
HENRY
JACOBS APPELLANT
versus
THE
STATE RESPONDENT
Coram
:
MOLWANTWA AJ et MOKGOHLOA AJ
JUDGMENT
ON APPEAL
MOKGOHLOA AJ
1.
The
appellant who was legally represented appeared in the Magistrate’s
Court Victoria West on a charge of contravention of
Section
67(1) (a)
of
the
South
African Police Act 68 of 1995
i.e. obstructing a police official in the execution of his duties.
Notwithstanding his plea of not guilty, he was convicted. However,
the passing of his sentence was postponed. He now appeals against
his conviction only, with the leave of the trial court.
2.
The
appellant’s grounds of appeal as they appear on his notice of
appeal dated 10 March 2006 are as follows:
“
1. Die
Agbare Landdros gefouteer en misgetas het deur die getuienis van die
enkel staatsgetuie as geloofwaardig te aanvaar en derhalwe
tot `n
foutiewe feitebevinding gekom het.
2. Dat die
Agbare Landdros gefouteer en misgetas het deur geen waarde te heg aan
die getuienis van die verdedigingsgetuies nie.
3. Dat Agbare
Hof gefouteer en misgetas het deur die korrektheid van die
visenteringslasbrief, wat as bewysstuk toegelaat is, te aanvaar
en
derhalwe tot `n verkeerde regsbevinding te kom.
4. Dat
die Agbare Hof gefouteer het en misgetas het deur nie behoorlik ag te
slaan op die bepalings van Wet 32 van 2000 nie.”
3.
It
is common cause or at least not seriously disputed that:
3.1.
the
appellant was at the material time employed by the Victoria West
Municipality as an administrative officer, whilst one Martin
Fillis
was the Municipal Manager at Victoria West;
3.2.
on
26 November 2004 one Captain J.S. Olivier visited the offices of
Victoria West Municipality armed with a search and seizure warrant;
3.3.
the
said Captain Olivier explained the reasons for his visit to the
appellant;
3.4.
in
turn the appellant phoned Mr Martin Fillis informing him of Captain
Olivier’s visit;
3.5.
the
appellant then refused to give any information to Captain Olivier;
3.6.
Captain
Olivier warned the appellant that he is going to arrest him for
refusing to give information;
3.7.
the
appellant was indeed arrested;
3.8.
subsequently
Captain Olivier returned to the Municipality offices later and seized
the necessary documents which were in a lever-arch
file.
4.
The
appellant’s version as testified by himself was that:
4.1.
he
informed Captain Olivier that he did not have the authority to make
available any information without the instructions of Fillis,
the
Municipal Manager;
4.2.
he
did phone Fillis whereafter Fillis discussed this issue with Captain
Olivier over the phone;
5.
What
was therefore essentially in dispute was whether:
5.1.
the
search and seizure warrant conformed to the prescribed law and was
valid;
5.2.
there
was a telephonic conversation between Captain Olivier and Fillis on
the day of the incident;
5.3.
the
appellant’s action were lawful in terms of the Municipality Act 23
of 2000;
5.4.
the
appellant obstructed or hindered Captain Olivier in the lawful
exercise of his duties by refusing to make the relevant information
available;
5.5.
the
appellant had the intention to commit the offence in issue.
(S
v Jaffer
1988 (2) S.A. 84
(CPD) at 87 a – j.)
6.
In
the context of this matter, I find it necessary and expedient firstly
to determine whether the search and seizure warrant conformed
to the
strict requirements of
Section
21
of the
Criminal
Procedure Act 51 of 1977 (the CPA)
and whether Captain Olivier’s conduct on that day was lawful.
7.
For
ease of reference,
Section
21
of
the
CPA
provides as follows:
“
(1) Subject
to the provisions of ss 22, 24, 25, an article referred to in s20
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; or
(b) by a judge
or judicial officer presiding at criminal proceedings, if it appears
to such Judge or judicial officer that any such
article in the
possession or under the control of any person or upon or at any
premises is required in evidence at such proceedings.
(2) A search
warrant issued under ss (1) shall require a police official to seize
the article in question and shall to that end authorize
such police
official to search any such person identified in the warrant, or to
enter and search any premises identified in the warrant
and to search
any person found on or at such premises.
(3) (a)
A search warrant shall be executed by day, unless the person issuing
the warrant in writing authorises the execution thereof
by night.
(b) A search
warrant may be issued on any day and shall be of force until it is
executed or is cancelled by the person who issued
it or, is such
person is not available, by a person with like authority.
(4) A police
official executing a warrant under this section or s 25 shall, after
such execution, upon demand of any person whose
rights in respect of
any search or article seized under the warrant have been affected,
hand to him a copy of the warrant.”
8.
It
is trite that search and seizure warrants give the police wide powers
to enter certain specified premises and conduct lawful search
and
seizure. It cannot be gainsaid that, unless properly and carefully
executed, search and seizure can constitute a serious invasion
of the
rights to privacy and dignity of other people. It is therefore
critical that search and seizure warrants be carefully worded
and
executed with scrupulous care.
9.
In
Community
Repeater Services CC and Others v Minister of Justice and Others
2000
(2) SACR 592
(SE)
at
594 h Chetty J
said:
“
The
principles to be applied in determining whether or not seizure under
a search warrant is justified are well established.
In
De
Wet and Others v Willer NO and Another
1953 (4) SA 124
(T) Ramsbottom
J,
delivering
the judgment of the Full Court, said at
127B:
‘To enter
premises, to search those premises, and to remove good therefrom is
an important invasion of the rights of the individual.
The law
empowers polce officers to infringe the rights of citizens in that
way provided that they have legal warrant to do so.
They must act
within the terms of that warrant.’
It
is apparent that the warrants are couched in general terms. In this
regard Beyers ACJ in
Divisional
Commissioner of SA Police, Witwatersrand Area and Another
1966 (2) SA
503(A)
said
at
512D:
‘It has long
been established that the courts will refuse to recognise as valid a
warrant the terms of which are too general.’
“
10.
Recently,
the Supreme Court of Appeal had occasion to grapple with the
sensitive and controversial aspect of search and seizure warrants.

In
Powell
NO and Others v Van Der Merwe NO and Others
2005 (1) SACR 317
(SCA),
at
340 para
[59],
Cameron JA
in
a careful, erudite and well – articulated judgement
enunciated
the principles applicable to search and seizure warrants in a
constitutional democracy as follows:
“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 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 that 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
.”
11.
It
is against these legal principles that I have to determine
the
crisp question as to whether the search and seizure warrant
in
casu
was
valid. The search and seizure warrant reads as follows:
“
Warrant of search
and seizure in terms of section 21, read with section 20 (a), (b) and
(c) of the Criminal Procedure Act 51 of 1977.
(as amended)
To:  Members as
per annexure B
After
perusing the information supplied to me under oath, I am of the
opinion that there appears to be reasonable grounds to believe
that
there are, within the Magisterial district of
Victoria
West
certain articles as per “Annexure A” hereto, which is concerned
in or is on reasonable grounds believed to be concerned in the
commission or suspected commission of an offence of
Fraud/Theft
within
the Republic of South Africa or elsewhere, or which may afford
evidence of the commission or suspected commission of an offence
to
wit
books
and accounts
which is intended to be used or is in reasonable grounds believed to
be intended to be used in the commission of an offence within
the
Republic of South Africa and which are or near the premises, to wit
MUNICIPAL
OFFICES, CHURCH STREET,VICTORIA WEST (UBUNTU MUNICIPALITY
)
You are hereby
authorised to enter the abovementioned premises during the day/night,
and you are instructed to search for the mentioned
objects, as per
Annexure “A” and to seize such objects if it is found and to
dispose of such objects to the powers you have in
terms of Section 30
of Act 51 of 1977
Seizure
take place in terms of section 22 (b) (i) and (ii) read with section
20 of Act 51 of 1977.
Annexure “A”
PROPERTY/OBJECTS
AS FOLLOWS:
1.
Bankstate
2.
Inbetalings
Bewyse
3.
Kwitansieboeke
4.
Notules”
12.
It
should be abundantly clear that the items to be seized listed in this
warrant are both vague and extremely wide. There is no
clear
indication anywhere in the warrant how far back in time the search is
to extend. Are bank statements, payment receipts, receipt
books and
minutes which are many years old to be seized, or is there to be a
‘cut off’ point somewhere? It is clear from the
said warrant, in
particular “Annexure A”, that the items to be seized are
sufficiently identified to enable the appellant to
know which items
Captain Olivier was authorised to seize and remove. I find the
warrant to have been impermissibly over – broad
and seriously
invasive. In my view, it is not enough to say that the appellant
knew what was being looked for. See
Powell
No and Others v Van der Merwe No and Others supra
at
para
[59].
13
.
Furthermore
in
Zuma
and Another v National Director of Public Prosecutions and Others
2006 (1) SACR 468
(D)
at
487 b Hurt J
held
that the warrant must convey the ambit of the search ‘intelligibly’.
This includes the fact that the person to be searched
must be given
enough information inter alia regarding when the suspected offence
was committed and who is suspected to have committed
it. Regrettably
this warrant falls short of this requirement too.
14.
In
his address the appellant’s attorney pertinently raised and
impugned the validity of the warrant in issue. Quite inexplicably
the magistrate failed to address this issue in his reasons for
judgment. This can possibly be ascribed to the fact that the
magistrate
found himself to decide on the validity of the very
warrant which he issued. That the magistrate found himself in an
invidious if
not embarrassing position is understandable.
15.
Having
found that the warrant was invalid, can it be said that the
appelant’s conduct amounted to obstruction of Captain Olivier
in
the lawful exercise of his duties.
CR
Snyman
in
his book
,
Criminal Law, 4
th
Edition, Butterworths, page 350
states
the following in respect of the offence in question:
“
The
offence is only committed if the act is committed in respect of a
member of the police service who is exercising his powers or
performing his duties or functions. This means that the offence
cannot be committed in respect of police conduct which is unlawful.

Thus if X obstructs a member of a police service who attempts to gain
entry into premises in an unlawful way, he does not commit
an
offence.”
16.
For
the reasons adverted to above, I am of the view that since the search
and seizure warrant was invalid, Captain Olivier was not
conducting a
lawful search and that therefore, in failing to furnish him with the
documents as set out in “Annexure A”, the appellant
did not
commit any offence.
In the
circumstances I make the following order:
1. The appeal
against both conviction and sentence is upheld.
2. The
conviction and sentence are set aside.
_________________________
F.E
MOKGOHLOA
ACTING
JUDGE
NORTHERN CAPE DIVISION
I
concur
_________________________
B.C. MOLWANTWA
ACTING
JUDGE
NORTHERN
CAPE DIVISION
For the applicant:
Adv I.J. Nel Instructed by: Wagener Attorneys
For
the state: Adv T.T. Birch Instructed by: Director of Public
Prosecutions