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[2024] ZAFSHC 134
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Nicolor (Pty) Ltd and Another v Minister of the South African Police Services N.O. and Others (618/2024) [2024] ZAFSHC 134 (6 May 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges:
YES/NO
Circulate
to Magistrates:
YES/NO
Application
no: 618/2024
In
the matter between:
NICOLOR
(PTY) LTD
First
Applicant
(Registration
no: 2012[…])
LUKISA
LOGISTICS (PTY) LTD
Second
Applicant
(Registration
no: 2021[…]
and
MINISTER
OF SAPS N.O.
First
Respondent
W/O
MUZIKAVISE AMON MAZIBUKO N.O.
Second
Respondent
THR
MAGISTRATE: WELKOM
Third
respondent
CORAM:
VANZYL, J
HEARD
ON:
7 FEBRUARY 2024
DELIVERED
ON:
6 MAY2024
[1]
This
application served before me on an urgent basis during my duty week
which was packed with opposed urgent applications.
[2]
The applicants
are seeking the following relief:
"1
.
Dispensing
with the forms and services in terms of Rule 6(12) of the Uniform
Rules of Court and disposing of the matter as one of
urgency in terms
of the Rules;
2.
Setting the
warrant for search and seizure issued by
the
Third
Respondent on 26 January 2024
in
respect of the
Applicant’s business and executed by the Second Respondent on
27 January 2024 aside;
3.
Directing and
ordering the Second Respondent and any other Respondent who is in
possession or control of the Applicant's moveable
goods listed in
paragraph
7.3 of the founding affidavit
hereto,
to forthwith return and restore possession of the moveable goods that
were removed by the Second Respondent and other members
of the SAPS
(who were at all relevant times under the control of the Second
Respondent) within
1
(one) hour
after
service of this order;
4.
Costs, on a
scale as between Attorney-and- Client to be paid by the Respondents,
jointly and severally, pay the one the other to
be absolved."
[4]
The
respondents raised a number of points in
limine
in its
Amended Notice to Oppose, subsequent to which it also filed an
answering affidavit. This is a peculiar procedure which the
respondents
adopted; however, I will
deal
with
the respective
points
as
well
as
with
the
merits
of
the
application and the opposition thereto.
[5]
The applicants
are seeking a spoliation order on the basis that the warrant for
search and seizure issued by the third Respondent
on 26 January 2024
and executed by the second Respondent on 27 January 2024 ('the
warrant") should be set aside as being unlawful
and invalid,
with the result that the search and seizure of the relevant goods,
constituted spoliation.
Urgency:
[6]
Mr Jonase, on
behalf of the respondents, submitted that the alleged urgency of the
application is self-created. He, however, conceded
that should I find
that the warrant is unlawful and consequently invalid, the
application is indeed to be considered urgent.
[7]
As pointed out
by the applicants, the search and seizure effectively crippled the
businesses of
the
applicants. A
spoliation
application is in any event by its very nature urgent. The applicants
are unaware where the seized items are being kept
and whether they
are safe and secure
.
This is in the
circumstances very
important,
especially
considering that most of the vehicles and machinery are contracted
through third parties.
[8]
I am satisfied
that the applicants made out a proper case for urgency and this point
in
limine
cannot be
upheld
.
Section
35 of the
General
Law Amendment Act, 62 of 1955:
[9]
I accept that
the mentioned section is applicable to the present application. See
Jaffa v
Minister of Law and Order
1991 (2)
286 (A) 294G-294H. However, I'm
of the view
that condonation is to be granted for the non-compliance thereof
because of the urgency of the application. I therefore
consider the
lesser period
of time reasonable in the circumstances
of this
matter.
The
applicants'
authority:
[10]
This point in
limine
is
being raised on the basis that
"the
applicants
do not specify the necessary instructions to be
given
for signing of any necessary documents".
[11]
Although the
wording of the resolution is open ended, I do not consider it to be
invalid or fails to provide the deponent to the
founding affidavit,
Mr Buthelezi, the necessary authority to
have
instructed the applicants' attorney of first instance to have
launched the present proceedings.
[12]
In so far as
the objection is against the deponent's authority to have signed the
affidavit on behalf of the first applicant, it
is neither here nor
there.
No
such authority is necessary.
In
Ganes
and Another v Telecom Namibia Limited
2004 (3)
SA 615
(SCA)
at para [19]
the Supreme
Court of Appeal determined as follows:
"
In my view, it
is
irrelevant
whether Hanke had
been
authorised to
depose
to the
founding affidavit. The deponent to an affidavit in motion
proceedings need not be authorised
by the party
concerned
to depose to
the affidavit.
It
is the
institution of the proceedings and the prosecution thereof which must
be authorised."
[13]
Insofar as the
respondents attempted to challenge the authority of the deponent to
the founding affidavit to have launched/instituted
the
application
on
behalf
of
the
first
applicant, it is now trite that any dispute regarding authority is to
be raised in terms of Rule 7 procedure.
[14]
The
judgment in the matter of
ANC
Umvoti Council Caucus and
Others
v
Umvoti
Municipality
2010
(3)
SA
31
(KZP)
dealt with
Ganes
and Another v Telecom Namibia Limited
2004
(3) SA 615
(SCA) and with
Unlawful
Occupiers, School Site v City of Johannesburg
2005 (4)
SA 199
(SCA) and determined as
follows at
paras [14] and [27] to [29]:
"[14]
The question is, rather, whether an applicant is obliged to prove, on
the papers, that authority has been given to initiate
litigation
where the applicant is an artificial person
....
[27]
...
Whether or not
the litigation has been properly authorised by the artificial person
named as the litigant would not be dealt with
by means of evidence
led in the application.
If clarity is
required, it should be obtained my means of Rule 7(1) since this is a
procedure which safeguards the interests of
both parties.
....
[28]
...
It is further
my view that the application papers are not the correct context in
which to determine whether an applicant which is
an artificial person
has authorised the initiation of application proceedings.
Rule 7(1) must
be used
.
This means
that I disagree with Mr Gajoo's submission that Rule 7(1) provides
only one possible procedure and that,
if
the
respondents elects to challenge the matter of authority on the
application papers, the applicant is required to prove such authority
on the papers
.
[29]
There was no
challenge in terms of Rule 7(1) in the application
which is the
subject of this appeal.
The
appropriate procedure was therefore not
used
by the appellants.
It was
accordingly not necessary for the applicant to prove the authority to
initiate the application, nor appropriate to attempt
to do so on the
papers.
It
was also not necessary for the court a quo to make a finding relating
to authority on affidavits delivered in the matter. Since
there was
no challenge in the required manner to the authority of the
respondent's attorney who signed the notice of motion and
initiated
the application in the accepted way, this court does not have to deal
with the question of authority.
I am therefore
of the view that the appeal on this issue must fail."
[15]
In the present
matter there was no challenge of the deponent's authority by means of
Rule 7(1) and I therefore do not have to deal
with the question of
authority any further.
[16]
This point
in
limine
can
consequently
not be upheld.
Non-ioinder:
[17]
Mr Jonase
submitted that
the Minister
of Justice has a direct and substantial interest in the subject
matter of this litigation which may prejudice him since
he has not
been joined. In this regard he pointed out that the Constitutional
Court held in
Van
Rooyen v The State
2002 (5)
SA 246
(CC) that magistrates are appointed and employed by the
Minister of Justice
.
It was held
that in carrying out their functions independently and impartially,
they still act within the course and scope of their
employment and in
accordance with the basis on which they were appointed
.
[18]
Mr Jonase
consequently submitted that the Minister may be prejudiced should a
costs order be granted a
g
ainst
the third applicant in the absence of the Minister.
[19]
However, Mr
Grobler, on behalf of the applicants,
indicated that
the applicants will not be seeking a costs order against the third
respondent. Considering the finding I will be
making on the merits of
the judgment, there is in my view no risk of a costs order being made
against the third respondent.
Requirements
for
a
valid
warrant
for
search and
seizure:
[20]
In terms of
section 21(1)(a)
of the
Criminal Procedure Act, 51 of 1977
,
"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".
(My
emphasis)
[21]
The validity
of a search warrant must be examined with a jealous regard for the
subject's right to privacy and property.
See
Toich
v
The
Magistrate,
Riversdale
&
others
2007
(2)
SACR
235
(C) at
242d-e.
[22]
In
Gogwana
v
Minister
of
Safety
and
Security
NO
&
others
2016 (1)
SACR
384 (SCA) at
para [30]
it was
stressed that a 'search warrant is not some kind of mere
"interdepartmental correspondence" or
"note"
' but 'as its
very name suggests, a substantive weapon in the armoury of the
state'. It 'embodies awesome powers, as well as formidable
consequences'; it
'must
be
issued
with
care,
after
careful
scrutiny
by
a
magistrate
or
justice, and
not
reflexively upon a mere "checklist approach"'.
My
emphasis)
[23]
The following
essential requirements are stated with reference to applicable
authority in
Commentary
on the
Criminal Procedure Act,
Du
Toit
et
al,
at RS
71, 2023 ch2-p23;
"The
warrant must, according to the provisions of
s 21(1)(a)
, be issued on
the strength of
'information
on oath'.
This, said Laubscher AJ in
Strauss
v Minister of SAPS NO
&
others
(unreported,
NWM case no UM30/2019, 2 May 2019) at [16], means that the
magistrate
or justice must duly apply his or her mind to the 'information on
oath'
and,
in doing so, exercise a judicial discretion as to (1) whether the
warrant should be issued or not, and (2) what the contents
and terms
of the warrant should be. Both must be informed by the 'information
on oath', so that any 'discord' in that information
taints the
exercise of
the discretion
in
respect
of
(1)
and
(2)....
Section
21(1)(a)
makes
it
quite
clear
that
search
warrants
must
be issued
only
on
the basis of
'information
on
oath'.
In
S v
Malherbe
2020
(1) SACR 227
(SCA)
it
was
held that
an
unsworn statement made by a police officer did not satisfy the
requirements
of
s
21(1
)(a),
since
the law requires 'strict adherence' to these requirements
(at
[8]). The search warrant was thus invalid (see too
Toich
v The Magistrate, Riversdale
&
others
2007
(2) SACR 235
(C))."
(My emphasis)
[24]
At
RS 71, 2023 ch2-p24 of
Commentary
on the
Criminal Procedure Act,
supra
,
the
following is also stated:
"The
information on oath required is usually submitted
in
the form of
affidavits
by the
investigating
officer
or other persons,
and
must be perused by the magistrate or justice before a warrant is
issued." (My emphasis)
[25]
Very
importantly the following is
stated at RS
70, 2023
ch2-p30B of
Commentary
on the
Criminal Procedure Act:
"Where
a supporting affidavit is attached to a warrant, there are
requirements that
a commissioner of oaths is to satisfy himself or
herself of the
identity
of the deponent.
The
deponent must sign in the commissioner's presence. This was not done
in
Mogale
&
others v Minister of Safety and Security
&
others
2016 (2) SACR 682
(GP),
where the
affidavit was signed by the deponent before it was presented to the
commissioner of oaths.
This defect, said the court, could not be
condoned,
and the warrant was found to be invalid and
was set aside." (My emphasis)
[26]
The aforesaid
stance of the court is in accordance with
regulation 3(1)
issued in
terms of
section 10
of the Justices of the
Peace and
Commissioners
of Oaths Act, 16
of 1963, in
terms whereof
"the
deponent shall sign the declaration in the presence of the
commissioner of oaths".
[27]
In the present
matter the
"affidavit"
of the second
respondent which formed the basis of the issuing of the warrant, was
signed by the second respondent in Welkom, whilst
the Commissioner of
Oaths, on face value thereof, commissioned same in Kroonstad.
According to me this defect cannot be condoned.
The failure to have
had the statement properly commissioned, has the result that it is a
mere statement and not an affidavit deposed
to under oath. The
issuing
of
the search and seizure warrant was consequently issued not based on
information under oath, which makes it fatally defective.
[28]
In
addition
to
the
problem
with
the
commissioning
of
the
statement (the so-called “affidavit"), the statement also
contains hearsay evidence in respect of both Sergeant Phahlametsing
and
Mr
Van
Rensburg
,
without
confirmatory
affidavits
having been
attached to
the
statement of
the second respondent, which hearsay
evidence
is
inadmissible.
The
whole
basis
of
the
“affidavit" of the respondent therefore in any event falls
away.
[29]
In
the
circumstances
I deem it unnecessary to
deal
with
the
other
shortcomings of the warrant.
[30]
The
search
and
seizure
warrant is
consequently
unlawful, invalid and stands to be set aside.
Relevant
authority
in
respect
of
the
merits
of
the
application:
[30]
Mr
Grabler relied on the judgment of
Ivanov
v North West Gambling Board and
Others
2012 (6) SA 67
(SCA) in support of the relief he
is seeking.
The Supreme Court of Appeal held as follows at paras [14] to [17]:
"B.
Effect
of the declaration of invalidity of the search warrant
[14]
Counsel for
the respondents submitted that the search and seizure were lawful
,
as the warrant
had not been declared invalid when the police executed it, and that
it remained valid until set aside on review.
In my view this
submission
cannot
prevail.
'A
warrant
is
no
more
than
a written
authority to perform an act that would otherwise be unlawful.'
It must comply
with the statutory provisions. If it is subsequently declared
invalid, the invasion of privacy and the search and
seizure cannot
retain the lawfulness thereof, as the essence of what made the
dispossession
lawful, falls
away.
As
Harms
DP
stated
in
Cadac
(Pty)
Ltd
v
Weber-Stephen
Products
Co
and
Others:
'The
declaration of invalidity operates retrospectively and not
prospectively. This means that once a warrant is set aside
it
is assumed
that it never existed, and everything done pursuant thereto was
consequently unlawful.'
[15]
Put
differently, the lawfulness
of the search
and seizure is
dependent on
the legality of the search warrant. This must necessarily be so, as
the warrant provides the justification for the
search and seizure. If
the warrant is declared null and void, it means that there was no
basis in law for the search and seizure,
which were therefore invalid
ex tune. In this case the police had no authority
to
seize the
appellant's goods, albeit that they acted in good faith and believed
that they had the power to search in terms of the
warrant. Once the
order of invalidity was issued, the necessary consequence
was that the
police acted unlawfully.
[16]
The matter was
put beyond doubt by the decision of the Constitutional Court in
Betlane v
Shelly Court
CC.
…The applicant applied for a spoliation
order.
Mogoeng J held in para 36: 'Ordinarily, an eviction that is carried
out pursuant to an
i
nvalid
writ of execution amounts to spoliation. The evictee would therefore
be entitled to restitution.' However, a restoration
order was not
granted, as the premises were already occupied by a bona fide third
party.
[17]
It follows
that it was competent for the appellant in this case to apply for a
spoliation order.
"
[31]
In the same
judgment, at paras [18] -
[19], the
Court dealt with the trite principles regarding and requirements for
spoliation:
"C.
Spoliation
application
[18]
Counsel for
the appellant submitted that the court below applied the wrong
principles when considering the application
.
He contended
that, in spoliation proceedings, the lawfulness of the possession of
the applicant for
the
spoliation order is irrelevant. All that is required of the applicant
is for him or her to prove that he or she was in peaceful
and
undisturbed possession of the disputed property and that he was
deprived of his possession against his will. Counsel for the
respondents, on the other hand, supported the finding of the court
below. He submitted that the lawfulness of possession had to
be
considered as the appellant is prohibited by the Act as well as the
National Gambling Act from possessing gambling machines
or gambling
devices without a licence. In support of this submission counsel
called in aid the decision of the full court of the
North West High
Court in
Schoeman
v Chairperson of the North West Gambling Board.
[19]
In my view the
submission
on
behalf
of
the respondents
is devoid of
merit. The historical background and the general principles
underlying the mandament van spolie are well established.
Spoliation
is the wrongful deprivation of another's right of possession. The aim
of spoliation is to prevent self-help. It seeks
to prevent people
from taking the law into their own hands.
An
applicant upon proof of two requirements is entitled to a mandament
van spolie restoring the status quo ante
.
The
first is proof that
the
applicant was in possession of the spoliated thing. The cause for
possession
is
irrelevant- that is why possession by a thief is protected.
The
second is the
wrongful deprivation of possession. The fact that possession is
wrongful or illegal is irrelevant, as that would go
to the merits of
the dispute."
(My
emphasis)
[32]
There can be
no dispute on the facts of this matter that the applicants were in
peaceful and undisturbed possession of the disputed
property prior to
the seizure thereof and that they were deprived of their possession
against their will.
[33]
The applicants
are consequently entitled to an order that their possession be
restored.
Costs:
[34]
In my view
there is no reason why the first and second respondents should not be
ordered to pay the costs of the application. Although
the applicants
initially sought an order on attorney and client scale, Mr Grabler
indicated that the applicants are only seeking
party and party costs.
Order:
[35]
I consequently
make the
following order:
1.
Condonation
for the non-compliance with the forms and services prescribed by the
Rules and by Section 35 of the General Law Amendment
Act, 62 of 1955,
is granted and the application is heard as one of urgency in terms of
Rule 6(12).
2.
The warrant
for search and seizure issued by the third respondent on 26 January
2024 and executed by the second respondent on 27
January 2024 is
unlawful and therefore declared to be invalid, null and void and is
consequently set aside.
3.
The first
and/or the second respondents and/or anybody else who are in
possession or control of the first and/or second applicants'
moveable
goods seized and
removed on 27
January 2024, as listed hereunder, are directed and ordered to
forthwith return and restore possession of the said
moveable goods to
the first and/or
.
the second
applicants within 24 (twenty-four) hours after service of this order:
3.1
Quester Truck
Head, LG 4[…]
3.2
Trailer 1, FZK
[…]
3.3
Trailer 2, FZK
[…]
3.4
Volvo Truck
Head, HV 7[…]
3.5
Trailer
1, LF
8[
…]
3.6
Trailer
2, LF
8[
…]
3.7
Volvo Truck
Head, LF 1[…]
3.8
Trailer
1, LF
8[
…]
3.9
Trailer
2, LF 8[
…]
3.10
Volvo Truck
Head, LF 1[…]
3.11
Trailer
1, LF
8[
…]
3.12
Trailer
2 LF
8[
…]
3.13
One grader
3.14
One excavator
3.15
One JCB front
end loader
3.16
One dumper
truck
3.17
Any other
items seized not mentioned above.
4.
The first and
second respondents are ordered to pay the costs of the application,
payment by the one the other to
be absolved.
C.
VAN ZYL, J
On
behalf of the applicants:
Adv.
S Grobler SC
I
nstructed
by:
Phatshoane
Henney Inc.
BLOEMFONTEIN
japiek@phinc.co.za
On
behalf of the respondents:
Adv.
SS Jonase
Instructed
by:
Office
of the
State
Attorney
BLOEMFONTEIN
rcanham@justice.gov.za