Toich v Magistrate, Riversdale and Others (6583/06) [2007] ZAWCHC 26; [2007] 4 All SA 1064 (C); 2007 (2) SACR 235 (C) (25 May 2007)

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[2007] ZAWCHC 26
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Toich v Magistrate, Riversdale and Others (6583/06) [2007] ZAWCHC 26; [2007] 4 All SA 1064 (C); 2007 (2) SACR 235 (C) (25 May 2007)

REPORTABLE
IN THE
SUPREME COURT OF SOUTH AFRICA
(CAPE OF
GOOD HOPE PROVINCIAL DIVISION)
CASE NO: 6583/06
In the
matter between:
PRALINE TOICH
Applicant
and
THE MAGISTRATE, RIVERSDALE
First Respondent
THE MINISTER OF SAFETY AND SECURITY
Second
Respondent
DETECTIVE INSPECTOR (F)
ASHLEY MICHAELS
Third Respondent
________________________________________________________
JUDGMENT DELIVERED THIS 25
th
DAY OF MAY, 2007
________________________________________________________
THRING, J.:
On the 29
th
November, 2005 the third respondent, who is a
detective inspector in the South African Police Service, together
with other members
of the police force, acting in the course and
within the scope of their employment as servants of the second
respondent, entered
the house of the applicant at 5 Church Street,
Still Bay, searched it, and seized and removed seven items, including
two personal
computers, certain computer accessories, two folders, a
number of compact discs and a camera. They did not have the
applicant’s
permission to do so, but purported to act on the
strength of a search warrant issued earlier on the same day by a
Captain A.J. le
Roux, who is presumably a Justice of the Peace by
virtue of her rank in the South African Police Force.
This
warrant, to which I shall refer as “the first warrant” authorises
the third respondent and any other member of the South
African Police
Service who may be able to assist in conducting the search and
seizure, to –
“search the identified person” and to
“enter and search the identified premises and any person found on
or at such premises”.
The only
person identified in the warrant is one Allen Harmony. The only
premises identified in the warrant are “Farm Ten Einde,
Riethuiskraal, Still Bay”. I shall refer to this address as “the
farm”, although it may, according to the applicant, in fact
be two
farms, but nothing turns on this. No mention is made anywhere in the
warrant of the applicant or of her premises at 5 Church
Street or 5
Kerkstraat, Still Bay.
The applicant seeks,
inter alia
, an order directing that her
property so seized on the 29
th
November, 2005 be returned
to her forthwith.
In her opposing affidavit the third respondent avers that the first
warrant “erroneously” referred to “Allan (
sic
) Harmony,
Farm Ten Einde, Riethuiskraal, Still Bay”. How this could be true I
do not know, as she says that this warrant was “first
executed”
at the farm. She does not say that what was done at the farm was done
in error. Indeed, it would seem that it was done
pursuant to and in
terms of the first warrant. Neither does she or anyone else aver that
the first warrant was intended to authorise
searches and seizures at
both the farm and at 5 Church Street. However, be that as it may: an
error, if it exists, does not assist
the respondents.
Now, the days of the general warrant ended in about 1763 with the
arrest of John Wilkes and others in connection with the publication
of the celebrated 45
th
issue of the North Briton. Since
then, warrants have had to be specific: see
Pullen, N.O. and
Others v. Waja
,
1929 TPD 838
at 846,
Money v. Leach
,
97 ER
1075
and
Zuma and Another v. National Director of Public
Prosecutions and Others
, 2006(1) SACR 468 (DCLD) at 486 g-h.
Consequently, a warrant authorising the arrest of an unspecified
person, or the search of
unspecified premises, or for unspecified
articles, will, as a rule, be invalid.
The first warrant is not a general warrant, but it is invalid for the
same reason as regards its execution at the applicant’s house:
it
authorises a search of the farm only; it does not authorise a search
of the applicant’s house. It follows that the search of
her house,
conducted under the purported authority of the first warrant, was, in
fact, unauthorised and unlawful, and so was the
seizure of her
property on that occasion. Moreover, hardly any of the property
seized under this warrant was specified in the warrant.
The applicant
is consequently entitled to its return.
On or about the 13
th
February, 2006 (the third respondent
says that it was on the 14
th
February,2006) the third
respondent, again accompanied by other members of the police force,
repaired again to the applicant’s house
at 5 Church Street, Still
Bay, entered it without her consent, searched it, and seized and
removed approximately R16,000.00 in cash
from a safe on the
premises. The applicant alleges in her affidavit that they also
removed a cash box and a plastic crate containing
files, but this is
denied by the third respondent, and for the purposes of these
proceedings her denial must be accepted.
The third respondent says that she was authorised to act as she did
by another search warrant, to which I shall refer as “the second
warrant”, issued by the first respondent on the 13
th
February,
2006, but apparently not bearing his signature. Whether or not the
absence of his signature renders it invalid, I need not
decide in the
light of other considerations which will presently become apparent.
In terms of this warrant the third respondent and
“any other member
of the South African Police Service who may be able to assist in
conducting the search and seizure” is purportedly
authorised to
enter and search “5 Kerk Street, Still Bay” (
sic
:
presumably the applicant’s house at that address) and to seize,
inter alia
, “kontant”. The amount thereof is not stated.
In the warrant the following is also recited:
“It appears to me from information on oath that there are
reasonable grounds for believing that, within the Magisterial
District
of Riversdale there are articles identified in Annexure “A”
hereto, with – (
sic
which?)
are on reasonable grounds believed to be concerned in the suspected
commission of;
may afford evidence of the suspected commission of; or
are on reasonable grounds believed to be intended to be used in the
commission of;
the offence(s) off (
sic)
Art 27(1)(a) (sic) Producing and
Possesion (
sic
) of Child Ponography (
sic
)
reasonable grounds for believing that such articles are -
in the
possession or under the control of or upon (blank) ........ [state
names(s) of person(s)]
upon or at 5 Kerk (
sic
) Street, Still Bay. [describe
premises]”
The application which was made to the first respondent for the
second warrant was supported by an undated document signed by the
third respondent, purporting to be an affidavit. However,
ex
facie
the photocopy of this document which was placed before this
Court by the first respondent in terms of Rule 53, it is unattested,
and
it bears the signature of the third respondent only. In it she
refers to the search of the applicant’s house on the 29
th
November,
2005, and says that on that occasion:
“
In die kluis te Kerkstraat 5, het ek kontant
twee honderd rand note ter waarde van ongeveer R100.000 gevind.
Aangesien dit nie in
die lasbrief vermeld was nie, het ek nie daarop
beslag gelê nie. Dit is die opdrag van die Bate en Beslagleggings
Eenheid, Kaapstad,
dat daar op die kontant beslag gelê moet word.
Die moontlikheid bestaan dat die kontant uit die pleging van die
misdade gegenereer
kon word.
Tydens die borg verrigtinge het Praline Toich, die eienaar van
Kerkstaat 5, onderneem om verslag aan die ondersoekbeampte te doen
vir die oorsprong daarvan, maar het versuim tot op datum om verslag
te doen.”
From these allegations it would appear that the grounds advanced to
the first respondent by the third respondent for the issue of
the
second warrant, as regards the search for and seizure of cash in the
applicant’s house, were:
that the Asset Forfeiture Unit, Cape Town, had instructed that it be
seized;
that the possibility (“moontlikheid”) existed that the cash
concerned “uit die pleging van die misdade gegenereer kon word”
(whatever that phrase may mean);
that, despite an undertaking to do so, the applicant had failed to
account to the third respondent for the source of the money.
The second warrant purports to have been issued in terms of secs. 20
and 21 of the
Criminal Procedure Act, No. 51 of 1977
.
Sec. 20
provides as follows:
“
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.”
Sec. 21(1)
reads, in its material parts:
“
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 –
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;”
(Secs. 22, 24 and 25 of the Act
are not applicable here).
It is clear from the record of the proceedings
before the first respondent which has been placed before this Court
by him in terms
of
Rule 53
that the only document relied on by the
third respondent in her application to him for the issue of the
second warrant was her undated
“affidavit” to which I have
referred. No
viva voce
evidence was adduced.
In
the first place, as I have said, it would seem that this “affidavit”
was not attested. Consequently, there was no information
of any kind
placed before the first respondent on oath. For that reason alone the
first respondent had no power under
sec. 21(1)(a)
of the
Criminal
Procedure Act to
authorise the issue of the second warrant, and it is
invalid: see
Naidoo and Another v.
Minister of Law and Order and Another
,
1990(2) SA 158(W) at 159 I.
Secondly, there is no allegation anywhere in the third respondent’s
“affidavit” that the cash therein referred to fell into
any of
the categories of article which are mentioned in
sec. 20
of the
Criminal Procedure Act. Thus
it is not alleged by her:
that it is or was concerned in or that it is or was on reasonable
grounds believed by anybody to be concerned in the commission
of or
suspected commission of an offence;
that it may afford evidence of the commission or suspected
commission of an offence; or
that it is or was intended to be used or is on reasonable grounds
believed by anybody to be intended to be used in the commission
of
an offence.
The high-water mark of the third respondent’s
allegations is that “die
moontlikheid
bestaan dat die kontant uit die pleging van die misdade gegenereer
kon
word”
(my emphasis).
For the reasons which
follow, this allegation in my view falls short of the sort of
allegation which would be necessary to bring it
within the ambit of
sec. 20(a)
of the
Criminal Procedure Act.
In
Powell, N.O. and
Others v. van der Merwe, N.O. and Others
,
2005(5) SA 62 (SCA) the Court, after analysing the relevant
authorities, said at 85 C-F (paragraph [59]):
“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 to 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.”
In
Divisional
Commissioner of South African Police, Witwatersrand Area and Others
v. South African Associated Newspapers Ltd. and Another
,
1966(2) SA 503 (AD) the Court dealt with sec. 42 of the Criminal
Procedure Act, No. 56 of 1955 which, concededly, is worded somewhat
differently from secs. 20 and 21 of the present Criminal Procedure
Act. However,
mutatis mutandis
,
the following passage in the judgment of the Appellate Division in
that case seems to me to be of equal application to the present
matter. At 511 G-H
Beyers, A.C.J.
said:
“
The warrant has been issued to him by a
responsible person to whom it has been made to appear on oath that
reasonable grounds exist
for believing certain things. In my opinion
the opening words of sec. 42 –
‘
If it appears to a judge of a superior court, a
magistrate or a justice on complaint made on oath’
were intended to govern all that follows,
including not only the existence of reasonable grounds for suspecting
that a certain article
is to be found at a certain place, but also
that there are, e.g., reasonable grounds for believing that the
article in question will
afford evidence as to the commission of an
offence (cf.
Minister of Justice and
Others v. Desai, N.O.
, 1948(3) SA 395
(AD) at p. 402).”
In
Naidoo
’s
case,
supra
,
where the Court was dealing with a warrant under sec. 25(1) of the
present Criminal Procedure Act,
Roux,
J.
said at 159 D-I:
“
For the applicants, reference was made to
previous judgments where the approach to powers such as these were
discussed, while on behalf
of the respondent I was cautioned not to
follow earlier judgments without appreciating that I am dealing with
a new section designed
to meet new circumstances.
Be that as it may, I have a fundamental approach to a matter of this
nature which I believe is founded on precedent. All persons
enjoy an
exclusive right to property which is their own. 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:
The meaning of the statute must be clear.
If the statute is unclear it must be interpreted in favour of the
individual.
Certain facts, which are often described as jurisdictional facts,
must exist before a warrant can issue.
The warrant must be unambiguous and confer no greater powers than
those authorised by the statute.
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, ACJ
.
said in
Minister of Justice and Others
v. Desai NO
, 1948(3) SA 395 (A) at 403.
Referring
to s. 25(1), it 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.”
From these authorities, and others such as
Zuma’s
case,
supra
,
loc. cit
.
it is clear that:
The validity of a search warrant must be examined
with a jealous regard for,
inter alia
,
the subject’s rights to privacy and property;
Before issuing a search warrant in terms of secs. 20 and 21 of the
Criminal Procedure Act, the magistrate or justice of the peace
concerned must be satisfied by information on oath, not only that
there are reasonable grounds for believing that the article to
be
searched for and seized is in the possession or under the control of
or upon any specified person or is upon or at any specified
premises
within his area of jurisdiction (sec. 21(1)), but also that the
article to be searched for and seized is an article such
as is
referred to in sec. 20; and
The terms of a search warrant are to be construed with reasonable
strictness, and it should ordinarily be read in the terms in
which
it is expressed.
Now, it is not contended by the respondents that
the money seized from the applicant fell into either of the
categories of article
referred to in sec. 20(b) or (c) of the
Criminal Procedure Act, viz. articles which may afford evidence of
the commission or suspected
commission of an offence, or articles
which are intended to be used or which are on reasonable grounds
believed to be intended to
be used in the commission of an offence.
Mr.
Jacobs
submitted, however, on behalf of the second and third respondents
that it fell within the first portion of the category of articles
referred to in sec. 20(a), viz. that it was an article “which is
concerned in .... the commission or suspected commission of an
offence.. ” But to my mind the mental leap which it would be
necessary to make from the third respondent’s averment in her
“affidavit”
that “(d)ie moontlikheid bestaan dat die kontant
uit die pleging van die misdade gegenereer kon word” to a
conclusion that the
money in question was, as a matter of fact,
actually concerned in the commission of an offence is too great to be
justified. In fact,
as a matter of logic it cannot be made. If this
is what the first respondent did, it was, in my view, unwarranted.
It might possibly be contended that the third
respondent’s allegation was sufficient to establish to the
satisfaction of the first
respondent that the money fell into the
category created by sec. 20(b): an article “which
may
afford evidence of the commission or suspected commission of an
offence...” (my emphasis). However, in my opinion such an argument
would also not be sound. The bald allegation by the applicant for the
search warrant of the existence of a more possibility that
the money
might
afford such evidence would not, I think, have sufficed to justify the
first respondent in issuing a warrant: in my view some rational
basis
for such an allegation would first have to be laid from which it
could be deduced or otherwise concluded that there was at
least a
reasonable probability that this was the case: see
Mandela
and Others v. Minister of Safety and Security and Another
,
1995(2) SACR 397 (W) at 401 b.
Steytler,
“Constitutional Criminal Procedure
”
(1998) says at 87 – 88, after drawing a comparison with some
Canadian cases:
“
A similar standard is set in South African law.
Prior to a search there must be reasonable grounds for belief
relating to three issues:
first, that an offence has been committed,
second, that the articles sought may afford evidence of the
commission of that offence,
and third, that the articles are likely
to be on the premises to be searched. With regard to the second
issue, it has been held that
it is an insufficient standard merely to
ask whether the articles are only possibly concerned with the
offence. On the other hand,
the constitutional standard should not be
as high as whether the articles
will
be used as evidence. The appropriate test is that set by section
20(b) CPA: articles may be seized ‘which may afford evidence of
the
commission or suspected commission of an offence’.”
I emphasize and endorse the
learned author’s view that, regarding what he calls the “second
issue”, viz. that the articles sought
may afford evidence of the
commission of the offence concerned, there must be reasonable grounds
for a belief that this is so. In
the present case no such grounds
were advanced to the first respondent by the third respondent in her
“affidavit”, and the first
respondent could consequently not
reasonably have harboured such a belief.
The latter part of the requirement in (2) above
has therefore not, in my judgment, been complied with in the present
instance, as
regards the second warrant. Had the first respondent
been aware of this, he should not and would not have issued the
second warrant.
It follows that he failed to apply his mind properly
when issuing the warrant, and it is invalid: see
World
Wide Film Distributors (Pty.) Ltd. v. Divisional Commissioner, South
African Police, Cape Town and Others
,
1971(4) SA 312(C) at 315 H – 316 D. (As regards the supposed error
in the first warrant, it is disposed of by the consideration
in (3)
above.)
The applicant seeks an order reviewing and
setting aside the second warrant. For the reasons which I have
mentioned she is entitled
to such an order, in my judgment, and also
to an order directing that the money seized by the third respondent
at her house on or
about the 13
th
or
14
th
February, 2006 on the strength of the warrant be returned to her
forthwith.
The applicant also seeks an order directing the second and/or third
respondents to reimburse her for damage allegedly caused by
the
police to her property. There is a material dispute of fact as to
whether any damage was caused to such property, which is incapable
of
resolution on the papers. This claim will be appropriately resolved
in an action for damages. I accordingly make no order on it
in these
proceedings.
The applicant also seeks an interdict against the third respondent
and/or any “member of second respondent” restraining them
from
unlawfully harassing her or entering or searching her premises. In
this regard, also, there are material disputes of fact on
the papers,
and the applicant must seek this relief by way of appropriate action,
if so advised. Moreover, the applicant makes no
allegation of any
threat of such conduct having been made by the third respondent or by
anyone else with regard to the future, such
as would be necessary to
justify the granting of such an interdict. I accordingly make no
order on prayer 4 of the applicant’s
notice of motion.
The applicant is entitled to the costs of this application. She has
asked for the costs to be awarded against the second and third
respondents on an attorney-and-client basis, but, subject to what
follows, I do not consider that she has established sufficient
to
justify such an order.
However, the second and third respondents have burdened the record
with unnecessary surplusage. They have annexed as annexure “AM1”
to the third respondent’s opposing affidavit the entire transcript
of a certain application for bail, brought in December, 2005
by a
daughter of the applicant. It runs to 359 pages. Save for six pages
thereof which may possibly be of some peripheral relevance,
the rest
of it is entirely irrelevant to the present proceedings, as is
evidenced by the fact that it has not been referred to anywhere
in
the heads of argument of any of the parties nor, until the topic was
raised by the Court with regard to costs, in counsel’s
oral
submissions. Its inclusion in the record has led to a substantial
waste of time and resources on the part of all concerned in
this
matter. As a mark of the Court’s disapproval, I accordingly propose
to make a punitive costs order against the second and
third
respondents in this connection. The first respondent has not opposed
this application; he abides the decision of this Court,
so that he is
blameless in this regard and will not be mulcted in costs.
In the result, the following order is made:
The decision of the first respondent of the 13
th
February, 2006 to authorise the
issue of the search warrant, annexure “PT2” to the applicant’s
founding affidavit, is set
aside, as is the said search warrant;
The second and third respondents are directed
forthwith to return to the applicant all items of property,
including money, seized
by members of the South African Police
Service at 5 Church Street, Still Bay, on the 29
th
November, 2005 and on or about the 13
th
or 14
th
February, 2006;
The second respondent is directed within ten days
of the making of this order to furnish the attorneys of record of
the applicant
with an inventory of all the articles, including cash,
seized by members of the South African Police Service at 5 Church
Street,
Still Bay on the 29
th
November, 2005 and on or about the 13
th
or 14
th
February, 2006;
Subject to what follows, the second and third respondents are
ordered to bear the costs of this application; provided that the
costs occasioned by the inclusion of annexure “AM1” to the third
respondent’s opposing affidavit (pages 109 tot 467 inclusive
of
the record), save for pages 140, 144, 147 and 151 to 153 inclusive,
shall be borne by the second and third respondents on an
attorney-and-client basis.
_____________________
THRING, J.
I agree.
_____________________
ZONDI,
J.