Farmer v Provincial Commissioner for the SAPS, Northern Cape and Others (1445/06) [2006] ZANCHC 70 (15 December 2006)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2006
>>
[2006] ZANCHC 70
|

|

Farmer v Provincial Commissioner for the SAPS, Northern Cape and Others (1445/06) [2006] ZANCHC 70 (15 December 2006)

Reportable:
Circulate
to Judges:
Circulate
to Magistrates:
Circulate
to Regional Magistrates:
YES
/ NO
YES
/ NO
YES
/ NO
YES
/ NO
IN THE HIGH
COURT OF SOUTH AFRICA
(Northern Cape
Division)
Case
number:
1445/06
Date
heard:
01/12/2006
Date
delivered:
15/12/2006
In
the matter between:
FARMER,
SUZAINE ANTONICIA
Applicant
and
THE
PROVINCIAL COMMISIONER
FOR
THE SAPS, NORTHERN CAPE 1
st
Respondent
CAPTAIN
MATHEE N.O
2
nd
Respondent
CAPTAIN
VAN DER WESTHUIZEN N.O
3
rd
Respondent
INSPECTOR
SWANEPOEL N.O
4
th
Respondent
Coram:
Lacock
J
JUDGMENT
LACOCK
J:
The
applicant is the manageress of a business conducted under the name
“The
Amusement Centre”
at 211 Main Road, Port Nolloth, Northern Cape Province. It is
common cause that the sole activity of the said business is that
of
– as contended by the applicant – legal
“gambling”
on electronic equipment
“what
was traditionally known as gambling machines (although it is
submitted that due to the conversions thereto and the manner
of
operation thereof) it can no longer be described as such.”
On Friday, 17 November
2006, at approximately 15:30, members of the South African Police
Services, accompanied by two inspectors in
the employ of the Northern
Cape Gambling Board, entered the aforesaid premises of the applicant,
and requested all patrons present
to vacate the premises. What
ensued is described as follows by the applicant:
“
They informed me and my
cashier, Gloria Louw, that illegal gambling has taken place on the
premises and that the two members of the
Northern Cape Gambling Board
in fact attended upon the premises earlier, played the electronic
equipment on the premises and as a
result thereof was paid out a
certain amount in cash.
They
did not have a search and seizure warrant in terms of the Criminal
Procedure Act to perform the search and seizure which then
proceeded.
I
was instructed by the third respondent to show him where the safe was
on the business premises. He did not explain to me why he
wanted to
have access to my safe. I showed him the safe, whereupon I was
instructed to open the safe. Everything inside the safe
was removed,
including cash as well as cleaning products.
Gloria
Louw was in the meantime instructed to hand over all the cash she had
on hand and the police officials searched for the R20.00
that was
allegedly used during the undercover operation.
The
members of the SAPS proceeded to remove all the keys from the
premises, including the keys of the electronic equipment.
They
also took the keys to the premises.
They
furthermore took all the books and all the equipment found on the
premises.
They
informed me that they are leaving the electronic equipment on the
premises but that they are locking up the premises.”
It
is common cause that the aforesaid search and seizure operations
were carried out by the police without a search and seizure
warrant
issued in accordance with the applicable provisions of the Criminal
Procedure Act, no. 51 of 1977 (the CPA).
The applicant has
approached this Court for the following relief:
Setting
aside the search and seizure carried out by the second, third and
fourth respondents at the Amusement Centre, 211 Main
Road, Port
Nolloth, on 17
th
November 2006.
Ordering the respondents to
forthwith restore to the applicant the possession of the:
premises situated at 211 Main
Road, Port Nolloth;
items
(including the money) seized during the search and seizure on
Friday, 17
th
November 2006 at the abovestated premises.
Costs on an attorney/own client
scale against those respondents who oppose this application.”
Although
a number of preliminary points were taken by the respondents in the
answering papers, Mr Botha, appearing for the respondents,
abandoned
all these points, and these are of no further relevance for purposes
of this judgment.
Mr.
Jagga for the applicant, submitted in the first place that the
conduct of the police in failing to first obtain a search and
seizure warrant was unreasonable and unjustified, and resulted in an
unwarranted invasion of the applicant’s fundamental constitutional
right to privacy as enshrined in sec. 14 of the Constitution.
Secondly, Mr Jagga submits that the provisions of the CPA in
any event does not authorise the Police to close a business by
denying the occupant access to the business premises. They should
have, so argues counsel, removed the machines and restored
possession of the premises to the applicant.
Sec. 14 of the
Constitution reads as follows:
“
14. Privacy
Everyone has the right to
privacy, which includes the right not to have-
(a) their
person or home searched;
(b) their
property searched;
(c) their
possessions seized; or
(d) the privacy of their
communications infringed.”
Sec. 22 and 25(1) of
the Constitution is also of relevance. These sections enact as
follows:
“
22. Freedom
of trade, occupation and profession
Every
citizen has the right to choose their trade, occupation or profession
freely. The practice of a trade, occupation or profession
may be
regulated by law.”
“
25. Property
(1)
No one may be deprived of property except in terms of law of general
application, and no law may permit arbitrary deprivation
of
property.”
The first issue for
determination is therefore whether the police acted reasonably and
justifiably when they carried out the aforesaid
search and seizure
operations. (See sec. 36(1) of the Constitution read with sec. 22
of the CPA.)
Sec. 22(b) of the CPA
reads as follows:
“
22. A
police official may without a search warrant search any person or
container or premises for the purpose of seizing any article
referred
to in section 20 –
(a) …
(b) if he on reasonable grounds
believes-
(i) that
a search warrant will be issued to him under paragraph (a) of section
21 (1) if he applies for such warrant; and
(ii) that the delay in
obtaining such warrant would defeat the object of the search.”
Sec. 20 of the CPA
reads as follows:
“
20. 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;
or
(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.”
The
aforesaid provisions of the CPA are not unconstitutional. See
S
v Gumede & Others 1998(5) BCLR 530 (D)
.
The question is therefore whether the concerned police officer in
charge of the said operation had, objectively determined, reasonable
grounds to believe that a search warrant would be issued to him under
sec. 21(1)(a) of the CPA if he applied for such warrant, and
that the
delay in obtaining such warrant would have defeated the object of the
search. See
Ndabeni
v Minister of Law and Order & Another, 1984(3) SA 500 (D) at 511
E
;
S
v Mayekiso & Others, 1996(2) SACR 298 (C) at 305 f
.
The undisputed
evidence deposed to by inspector Swanepoel, the fourth respondent,
and supported by Messrs. Mabilo and Makgoka, inspectors
employed by
the Northern Cape Gambling and Racing Board (the Board) revealed the
following factual circumstances that lead to the
search and seizure
operations:
Inspector Makgoka
visited the aforesaid premises of the applicant approximately three
months prior to 17 November 2006, and suspected
that illegal
gambling activities were conducted on the premises.
Both
the aforesaid inspectors of the Board again visited the premises on
17 November 2006 at approximately 12:30. Mr Makgoka changed
two
R20.00 notes for 50c coins, and played two different electronic
machines. In the process, he won 38
“credits”
of 50c each on one of the machines. Since the machine is apparently
converted not to pay out any cash credits or winnings, the
applicant
paid an amount of R19.00 to Mr Makgoka. He thereupon approached the
local police and related the aforesaid events to
the police in an
affidavit.
This affidavit was
thereafter handed to Swanepoel. On the strength of this information
Swanepoel suspected that illegal gambling
in contravention of
sections 81(1)(a) and (4) and 88(8) of the Northern Cape Gambling
and Racing Act, no. 5 of 1996 (the Act),
was conducted on the
premises of the applicant, and which conduct warranted police
action. It was never in dispute that the applicant
is not a holder
of a gambling licence, nor was she authorised to allow any gambling
activities on her premises in terms of the
Act or any other
statutory provisions.
For
purposes of gathering evidence in his investigation of the matter,
Swanepoel had photocopies made of
inter
alia
two R20.00 notes which were thereafter exchanged by inspector Mabilo
at the applicant’s premises for 50c coins. He played one
of the
machines, won 70 credits and was paid an amount of R35.00 by the
applicant’s cashier. Mabilo conveyed to Swanepoel what
transpired
and confirmed this information in an affidavit. According to the
undisputed contents of this affidavit, Mabilo on this
day entered
the premises of the
“The
Amusement Centre”
at 15:50, and signed the affidavit at 17:40.
By reason of the
aforesaid information Swanepoel’s believe that illegal gambling was
conducted on the applicant’s premises, was
further strengthened.
He was furthermore convinced that the electronic machines were used
for purposes of illegal gambling and that
these machines were
concerned in the commission or suspected commission of an offence
(illegal gambling) and might afford evidence
of the commission or
suspected commission of an offence as contemplated in sec. 20 of the
CPA.
Swanepoel and other
members of the Police Services as well as the two inspectors of the
Board then proceeded to the premises of
the applicant where, after
all members of the public present were requested to leave the
premises, he seized all articles on the
premises which included all
electronic machines and all cash at hand.
Sections
81(1)(a) and 88(8) of the Act provides,
“
81. (1) no person shall
without a licence –
conduct or permit the
playing of any gambling game or conduct or permit any betting or
racing in or on any premises under
his or her control or in his
or her charge.”
“
88. Any
person who –
(1) …
(2)
…
(3)
…
(4)
…
(5)
…
(6)
…
(7)
…
(8)
is in possession of any gambling device, other than playing cards or
dice, which is not used under a licence in or in accordance
with the
provisions of this law, and
(9)
…
shall
be guilty of an offence … .”
A
“gambling
game”
is defined in the Act as,
“any
game played with or by means of cards or dice or any mechanical,
electro-mechanical or electronic device, component or machine
or
computer hardware or software for money, property, cheques, credit or
anything of value and includes, without derogating from
the
generality of the foregoing, roulette, bingo, twenty-one, blackjack,
chemin de fer, baccarat, poker, craps and punto banco.”
A
“gambling
device”
is defined as
“any
equipment
or thing used, or designed to be used, directly or indirectly in
connection with a gambling game.”
It
therefore
prima
facie
seems that the applicant contravened the above quoted section of the
Act. I am convinced that all requirements referred to in
sec. 20 of
the CPA had been met, and that the State acted within the ambit of
this section when the aforesaid seizure was executed.
Mr Jagga did
not argue to the contrary. It therefore follows that, objectively
viewed, Swanepoel’s believe that, had he applied
for a search and
seizure warrant under sec. 21(1)(a) of the CPS, a warrant would be
issued to him, was founded on reasonable grounds.
The main gist of Mr
Jagga’s argument on this issue was, however, directed at the
second requirement contained in sec. 22(b) of
the CPA. He argued
that the police had more than sufficient time to obtain a warrant
and could therefore not hide behind the provisions
of sec. 22(b)(ii)
of the CPA for the failure to apply timeously for a warrant in terms
of sec. 21 of the CPA. This failure to
apply for a search warrant,
so argued Mr Jagga, rendered the seizure process unreasonable and
consequently unlawful.
The reasons for
failing to apply for a search warrant in terms of sec. 21(a) of the
CPS are explained by Swanepoel as follows:
“
Dit
is inderdaad korrek dat daar nie ‘n deursoekings- en
visenteringslasbrief verkry is alvorens die visentering en
beslaglegging
gedoen is nie. Die rede daarvoor was dat daar nie ‘n
Landdros op Port Nolloth gestasioneer is nie. Die naaste Landdros is
op Springbok
gestasioneer. Die inligting wat ek vanaf die lede van
die Dobbelraad het tot my beskikking gekom ongeveer 15:30. Die
enigste Offisiere
van die Suid-Afrikaanse Polisiediens wat te Port
Nolloth beskikbaar was, het aan die optrede deelgeneem en kon
gevolglik ook nie
‘n lasbrief magtig en uitreik nie.
Dit
sou ongeveer 1 uur 45 minute neem vanaf Port Nolloth per voertuig na
Springbok om die oorspronklike eedsverklarings aan die Landdros
voor
te lê ten einde ‘n lasbrief te verkry. Uit ondervinding weet ek
dat die Landdroste te Springbok nie na 16:00 lasbriewe magtig
en laat
uitreik nie. Dit sou ‘n verdere 1 uur 45 minute geneem het om met
die oorspronklike lasbrief te Port Nolloth te kom sodat
dit aan die
applikante getoon kon word. Nadat Mabilo met die gefotostateere note
kleingeld gekry het om aan die dobbel aktiwiteite
deel te neem,
moes die perseel so spoedig moontlik gevisenteer word terwyl die note
nog in besit van die applikant en op die perseel
was. Daar was net
‘n beperkte tyd beskikbaar waarna die risiko bestaan het dat die
note aan ander lede van die publiek uitbetaal
sou word wanneer hulle
kleingeld sou maak. Dan sou die bewysstuk deur Mabilo gebruik,
verlore gaan. Dit het inderdaad ook toe so
gebeur dat daar tydens
die ondersoek van die geldnote op die toneel, nadat die optrede begin
het, gevind is dat slegs Bewysstuk ‘S4’
nog tussen die note was
en dat Bewysstuk ‘S5’ nie meer daar was nie en gevolglik reeds
uitbetaal was.
Op
die inligting tot my beskikking het ek ‘n redelike vermoede gehad
dat daar ‘n misdryf op die perseel gepleeg word en dat daar
bewysstukke op die perseel is wat kan dien as bewys van sodanige
misdryf en moontlik ander misdrywe. Ek het geweet dat indien ek
wel
om ‘n lasbrief aansoek doen, ‘n lasbrief deur die Landdros aan my
uitgereik sou word. Om eers na Springbok en terug te ry
sou dus die
hele doel van die optrede en beslaglegging nutteloos maak.”
The applicant
endeavoured to counter the aforesaid allegation by Swanepoel that no
magistrate is stationed at Port Nolloth by filing
an affidavit of
attorney Vardakos in which he stated,
“
I
confirm that I telephonically contacted the department of Justice on
1 December 2006 and confirmed with them that there is a Magistrates
Court in the district of Port Nolloth, and there is a magistrate
allocated to that Honourable Court.”
Mr
Jagga was, however, constrained to concede that the contents of this
affidavit is no answer to Swanepoel’s aforesaid assertion.
There
is a vast difference between a magistrate
“stationed”
at a town and a magistrate
“allocated”
to a court in that town.
On
the authority of
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd, 1984(3) SA 623 (AD)
,
I am bound to accept that no magistrate or other authorised official
were available at Port Nolloth to issue a search warrant at
the
relevant time.
According
to the contents of the affidavits of inspectors Makgoka and Mabilo,
they are both resident in Kimberley. One can therefore
on a balance
of probability accept that they visited Port Nolloth on 17 November
2006 for the very purpose of establishing whether
gambling
activities were conducted at
“The
Amusement Centre”
,
Port Nolloth. The police were only engaged at some time after 12:30
on that Friday afternoon. Swanepoel reacted immediately
by
photocopying the R20.00 notes and instructing the inspectors of the
Board to return to the
“The
Amusement Centre”
to do the necessary to collect evidence on which the police could
react. Mabilo entered the premises of
“The
Amusement Centre”
at 15:50 and thereafter signed his affidavit at 17:40 that
afternoon.
To expect from a
reasonable police officer under these circumstances and with
knowledge of the information alluded to hereinbefore,
not to act in
terms of sec. 22 of the CPS, but rather to travel to Springbok to
apply for a search warrant, would be – to my
mind – nothing else
but to expect from him not to comply with his duties as a law
enforcement officer. Swanepoel had reason
to believe that illegal
gambling was allowed on the premises of the applicant; had properly
identified the bank notes used in the
suspected gambling activities
by the inspectors; had reasonable grounds to believe that the
retrievement of the bank notes may
afford evidence of the commission
of the offence of illegal gambling; and had to act speedily to seize
the notes since he knew
that the notes would in all probability be
used for payment to other customers. In these circumstances a delay
of several hours
in obtaining a search warrant would most certainly
have defeated the object of the search.
I
therefore conclude that Swanepoel acted reasonably when he decided
to seize the articles on the premises of
“The
Amusement Centre”
without first obtaining a search warrant.
This, however, is not
the end of the matter. The further issue is whether the police were
entitled to deprive the applicant of
the possession of the premises
as a means of retaining the seized articles under police custody.
Mr
Jagga relied in this regard on the judgment in
Goncalves
v Minister of Law and Order & Another 1993(1) SA 161 (W)
for his contention that Swanepoel was not entitled to, as he put it,
“close
the business of the applicant”
by locking the doors to the premises and retaining the keys thereof
(as he did), thus depriving the applicant of possession of
the
premises.
The reason for his
aforesaid conduct is explained by Swanepoel as follows:
“
Daar
is ook op die sleutels vir die perseel beslaggelê ten einde die
dobbelmasjiene in die perseel te kan toesluit en op daardie
wyse te
beveilig. Die dobbelmasjiene sal belangrike bewysstukke wees by die
kriminele vervolging wat later ingestel gaan word.
Soos blyk ui
t
foto 1, ‘n foto van die ingang tot die perseel, is daar
veiligheidshekke aangebring waarmee toegang tot die perseel beheer
word”
Soos gesien kan word op onder
andere foto’s 11, 12, 13, 14 en 16, en soos deur die applikant self
verduidelik in paragraaf 29.4
van die funderende verklaring, is die
dobbelmasjiene groot en swaar en moeilik om te skuif. Daar bestaan
verder die risiko dat hierdie
masjiene beskadig kan word indien hulle
van die perseel verwyder word. Die SAPD te Port Nolloth het nie op
daardie stadium, en nou
steeds, beskik oor die nodige spasie om die
dobbelmasjiene veilig te stoor nadat dit van die perseel verwyder is
nie. Die SAPD het
ook nie beskik oor geskikte masjinerie soos
vurkhysers en oopbakvoertuie om die dobbelmasjiene veilig mee te laai
en te vervoer nie.
Daar bestaan ‘n moontlikheid dat die
elektronika van die masjiene beskadig kan word indien dit verskuif
word. Ek het gevolglik
besluit dat dit veiliger is om die
dobbelmasjiene op die perseel toe te sluit.
Ek het geen
twyfel dat indien ek meer as drie ure per pad moes spandeer na
Springbok en terug om ‘n lasbrief by die Landdros na-ure
te bekom
die verdere R20.00 noot wat as bewysstuk moet dien, reeds uitbetaal
sou wees nie. As gevolg daarvan dat ‘The Amusement
Centre’ nie
ver van die Polisiestasie geleë is nie, en Port Nolloth ‘n klein
dorp is waar ek as Polisiebeampte gereeld rondbeweeg,
is ek bewus
daarvan dat daar heelwat meer lede van die publiek by ‘The
Amusement Centre’ dobbel gedurende die aand en veral oor
naweke as
gedurende die oggende en middae en gedurende weeksdae. Die kanse dat
die R20.00 bewysstuk gouer, eerder as later op ‘n
Vrydagaand
uitbetaal sou word, was baie goed. Ek kon nie begin om reëlings te
tef om’n lasbrief te verkry voordat ek ‘n skriftelike
verklaring
van Mabilo gehad het, dat hy die gefotostateerde note geruil het en
gedobbel het en dat daar wel geld aan hom uitbetaal
is as gevolg van
die dobbelary nie. By gebreke aan die geld wat op die toneel gevind
is, sou daar nie direkte en onafhanklike stawing
gewees het vir
Mabilo se getuienis dat hy inderdaad daar gedobbel het nie.
Makgoka en Matsage, die
werknemers van die Dobbelraad verantwoordelik vir wetstoepassing, het
reëlings getref met onafhanklike deskundiges
om die dobbelmasjiene
op die perseel waar dit gevind is, te ondersoek ten einde te
sertifiseer of dit inderdaad nog dobbelmasjiene
is soos bedoel in
Artikel 1 van die Noord-Kaap Dobbelwet. Matsage het in verbinding
getree met Thapelo van GLI & BMM Testing
Lab te Johannesburg, wie
‘n deskundige op die gebied is. Hy het Matsage meegedeel dat die
vroegste tyd wat hy na Port Nolloth
kan reis ten einde heirdie
ondersoek te doen, sal wees op Woensdag, 6 Desember 2006. Die rede
daarvoor is dat hy met ander werk
besig is en daar geen direkte
vlugte vanaf Johannesburg na Port Nolloth en terug is nie.
Hierdie
ondersoek wat deur die deskundige op die masjiene gedoen moes word en
die uitslag daarvan vorm ‘n belangrike onderdeel van
die ondersoek
wat gedoen moet word deur die Dobbelraad sowel as die Suid-Afrikaanse
Polisiediens ten einde die ondersoek van die
klagtes af te sluit.
Totdat dit gedoen is, is die ondersoek nog nie afgehandel nie en kan
die masjiene nie geskuif word nie.”
Goldstone
J
had the following to say in
Goncalves
(supra)
at 162
:
“
On 1
October 1991 the applicant brought the present application urgently
seeking an order that the respondents restore his possession
of a
business known as 'Mayberry Park Supermarket'. It is common cause
that Sergeant Viljoen of the South African Police caused the
business
to be closed from Sunday, 29 September 1991, to Thursday, 3 October
1991. The single question I have to answer is whether
he was entitled
to do so. The respondents rely for such closure on the provisions of
s 22 of the Criminal Procedure Act 51 of 1977
('the Act') read with s
20 of the Act. Insofar as it is relevant to this judgment, s 22
empowers a police official to 'search . .
. any . . . premises for
the purpose of seizing any article referred to in s 20 . . .'.
Section 20 in its turn inter alia authorises
the seizure of articles
believed 'on reasonable grounds . . . to be concerned in the
commission . . . of an offence . . .'. Thus,
articles which are on
reasonable grounds believed to be stolen may be searched for and
seized. It is conceded by the applicant that
Viljoen had the
necessary belief at the material time. Viljoen's reason for closing
the business was his inability immediately to
conduct an efficient
search of the premises and seizure of the large quantity of goods
involved. To do so he needed assistance from
others and such
assistance could not be obtained without the lapse of some days. And
if he allowed the business to remain open, he
reasoned, his intended
search and seizure might be wholly or partially thwarted by the
suspected thieves.
Mr
Grobler, who appeared for the respondent, contended that in the
circumstances of the present case the search Viljoen was entitled
to
conduct could not be properly effected without the closure. Thus
Viljoen's right to shut the business was to be implied in the
provisions of the Act authorising search and seizure. Mr Grobler's
argument has to be rejected for the following reasons. It
is clear
that ss 20 and 22 presuppose a police official able to conduct the
search or seizure concerned. The sections do not concern
a situation
where the police official is for some reason unable to do so and in
fact needs to exercise additional powers to place
himself in a
position to act in terms of such sections. And that was Viljoen's
situation; he was unable to conduct a search and seizure
and,
therefore, needed the power to shut the business to ensure an
effective search and seizure later.”
It
immediately becomes clear that the circumstances in
Goncalves
differ substantially from the circumstances in the matter under
consideration. In
Goncalves
it was found that the police officer was not able to conduct a search
and seizure at the time the business of the applicant in that
matter
was closed, and he caused the business to be closed to prevent the
removal of the suspected stolen goods until such time a
proper search
and seizure could be conducted with the assistance of others. The
learned Judge quite correctly found that sections
20 and 22 of the
CPA did not authorise the closure of the business for that purpose.
In
this matter however Swanepoel in fact completed his search and
seizure activities and thereafter locked the premises for purposes
of
retaining the seized articles under police custody.
Goncalves
is therefore no support for Mr Jagga’s argument.
I
was unable to find any authority on this issue during the short time
at my disposal.
It
appears to me that a convenient starting point for determining this
issue would be the provisions of sec. 30 of the CPA. The
relevant
portion of this section provides that,
“
A police
official who seizes any article referred to in section 20 or to whom
any such article is under the provisions of this Chapter
delivered-
…
…
shall, if the article is not
disposed of or delivered under the provisions of paragraph (a)
or (b), give it a distinctive
identification mark and retain it
in police custody or make such other arrangements with regard to
the custody thereof
as the circumstances may require.
In
the normal cause of events articles seized by the police under sec.
20 or 22 of the CPA must be kept under police custody (which
is
usually in a police station or on premises under the control of the
police). This much is clear from the reading of the above
quoted
section of the CPA. However, provision is also made for
“
other
arrangements with regard to the custody
(of
seized articles)
as
the circumstances may require.”
(Own emphasis).
The quoted portion of
the section is cast in wording denoting of a wide and general
application. This is intelligible since it would
be an impossible
task for the Legislature to cater statutorily for all possible
situations where seized articles, by reason for instance
of its size,
weight or other feature, cannot be retained in direct police custody.
However, Courts of Law
should never lose sight of the fundamental rights to privacy and
property enshrined in sections. 14 and 25
of the Constitution, when
the aforesaid provisions of sec. 30 of the CPA are considered or
applied.
To
my mind, the proper approach for determining the lawfulness of the
application of the aforesaid provisions of sec. 30(c) of the
CPA
would be to balance the public interest in the prevention of crime
by law enforcement officials (like the South African Police
Service)
on the one hand, against the fundamental constitutional rights to
privacy and property of the person whose articles had
been seized
and/or the person whose said rights may be encroached upon as a
consequence of the
“other
arrangements”
for the safe keeping of the seized articles on the other hand, and
to then ask oneself whether, on the factual circumstances of
the
matter under consideration, the method of safekeeping invoked,
reasonably justifies the limitation of the individual rights
concerned in an open and democratic society. The answer to the
aforesaid exercise will of necessity depend upon the circumstances
pertaining to each individual case.
Far from suggesting
that the list is an exhaustive one, the following aspects may be of
relevance when considering this issue: the
nature and gravity of the
alleged offence; the necessity of safeguarding the articles
forthwith; a reasonable apprehension that the
articles may be
tampered with or destroyed; the location of the goods; the
practicality of removing the goods by reason of, for instance,
the
size or weight of the goods; the availability of storage facilities;
the nature and duration of the encroachment; the consequences
of the
encroachment for the persons concerned; and any prejudice that may or
may not be suffered by any person.
When
applying the aforesaid approach to the undisputed facts of the
present matter, I am convinced that the arrangements by Swanepoel
for the safekeeping of the machines i.e. to lock up the machines in
the business premises of the applicant, was, subject to par.
20 of
this judgment, reasonable and justifiable under the given
circumstances.
It
is common cause that the said premises were used for the sole
purpose of accommodating the aforesaid electronic
“gambling”
machines and for no other purpose. The applicant did not utilise
the premises for any other business but as an amusement centre,
whereby members of the public are free to play the machines. There
is nothing before me indicating that the applicant intends
to use
the premises for any other purpose. The applicant will therefore
suffer no prejudice if the machines are, for the time
being, kept
under police custody on the premises.
The additional purpose
of the seizure of the machines, as explained by Swanepoel, was to
enable the police to have the machines
inspected by an expert for
the very purpose of establishing whether the machines are in fact
gambling machines. This would be vital
evidential material in the
prosecuting process. Again, as explained by Swanepoel and which
explanation is undisputed, this inspection
needs to be done on the
premises while the machines are still connected to the existing
power supply. The removal thereof will
render this exercise futile.
The police were in any
event not able to accommodate the machines elsewhere in Port Nolloth
at the time of the seizure thereof and
were unable to move the
machines.
I have already found
that the seizure of the machines without a warrant was reasonable
and justified.
It appears that no
other person has an interest in the use of the premises.
However,
once the safekeeping of the machines on the premises of the
applicant has served its purpose, I can see no reasonable

justification for further denying the applicant access to her
premises. To my mind it will be unreasonable to deny her further
access to the premises and to allow the police to utilise the
premises indefinitely simply as a convenient storeroom at no costs.

Once the aforesaid inspection of the machines had been completed,
the police should restore possession of the premises to the
applicant and either remove the machines or return same to the
applicant. Swanepoel indicated that he inspection of the machines
could be done by 6 December 2006.
What remains to be
decided is the matter of costs.
The main thrust of the
applicant’s application was directed against the seizure of the
articles in her business premises without
a warrant. In this regard,
the application failed.
The second leg of the
application was directed against the closure of the business
premises. In this regard the applicant was to a
limited extent
successful.
The
opposite is valid in respect of the respondents.
Although
Swanepoel alleged in his affidavit that negotiations ensued between
the police and the applicant regarding the safe keeping
of the
machines on the premises of the applicant until the machines could be
inspected by an expert, no such condition was conveyed
to the
applicant at the time of the seizure of the machines. Even during
the said negotiations, no undertaking was given to the
applicant that
the premises would be restored to her once the inspection had been
completed.
In
these circumstances, I hold that, in fairness to both sides, no order
as to costs should be made.
By
these premises, the following order is made:
Save for par. 2 of
this order, the application is dismissed.
The respondents
are directed to restore to the applicant the possession of the
premises situate at 211 Main Road, Port Nolloth,
Northern Cape, by
not later than 12:00 noon on 18 December 2006.
No order as to
costs is made.
_______________
HJ Lacock
JUDGE
For
the applicant:
Adv
Jagga
(instructed
by Van de Wall Attorneys, Kimberley)
For
the respondents:
Adv
CH Botha