SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 417/20 24

In the matter between:

DIRECTOR OF PUBLIC PROSECUTIONS APPELLANT
(GAUTENG DIVISION)

and


THATO MOLEFE FIRST RESPONDENT

ZENZILE NDABA SECOND RESPONDENT


Neutral citation: Director of Public Prosecutions, Gauteng Division v Thato Molefe
and Another ( 417/20 24) [2025] ZASCA 67 (26 May 2025)
Coram: NICHOLLS, HUGHES, KEIGHTLEY and BAARTMAN JJA and
WINDELL AJA
Heard: 28 March 2025

Delivered: 26 May 2025

Summary: Section 35(5) of the Constitution – defective search warrant –
admissibility of evidence – unfair trial – administration of justice
– public policy.





ORDER



On appeal from: Gauteng Division of the High Court, Pretoria (Phahlamohlaka AJ
and Phahlane J sitting as court of appeal):
1 The appeal is upheld.
2 The order of the full bench is set aside and substituted with the following:
‘1 The appeal is upheld.
2 The order of the regional court is set aside and replaced with the following:
(a) The material seized under the search warrant is found to be admissible.
(b) The acquittals on counts 1, 2, 3, 4 and 5 are set aside.’
3 The matter is remitted back to the regional court to continue with the trial.




JUDGMENT



Nicholls JA (Hughes, Keightley and Baartman JJA and Windell AJA concurring):

[1] Under what circumstances is evidence which has been obtained as a result of
a defective search warrant admissible? That is the question to be determined in this
appeal. The Regional Court, Vereeniging (the regional court), found that it was bound
by this Court’s decision in S v Malherbe (Malherbe ),1 that once the search warrant was
defective, it had no option but to rule the evidence inadmissible. This was confirmed
by a full bench of the Gauteng Division of the High Court, Pretoria (the high court), per
Phahlamohlaka AJ and Phahlane J. The appeal is before this Court in terms of s 311
of the Criminal Procedure Act 51 of 1977 (the CPA), which affords the Director of

1 S v Malherbe [2019] ZASCA 169; 2020 (1) SACR 227 (SCA) (Malherbe ) paras 8 and 9.

Public Prosecutions (the DPP) an automatic right of appeal on a question of law.2

[2] The respondents, Mr Thato Molefe (Mr Molefe) and Mr Zenzile Ndaba
(Mr Ndaba) were charged in the regional court under the Drugs and Drug Trafficking
Act 140 of 1992 (the Drugs Act) with the manufacture of drugs, dealing in drugs, as
well as individual counts for possession of an illegal firearm and ammunition in terms
of the Firearms Control Act 60 of 2000 (the Firearms Control Act).3 There was a third
accused , Mr Peter Mhlanga (Mr Mhlanga), who died during the course of the trial. The
main charge against the three was that they operated a drug laboratory, manufacturing
and supplying certain substances used in the manufacture of methaqualone,
commonly known as mandrax.

[3] During the trial in the regional court, the only evidence led by the State was the
discovery of drugs and drug manufacturing equipment, with a street value of
R26 million. Mr Andre Van Schalkwyk, a Warrant Officer (Warrant Officer Van
Schalkwyk) attached to the Vaal Organised Crime Unit, said that these were found by
the police on the premises owned by Mr Ndaba, pursuant to a search warrant. Shortly
after Warrant Officer Van Schalkwyk’s evidence commenced, a trial within a trial was
held to determine the admissibility of the evidence obtained under the search warrant.

[4] Warrant Officer Van Schalkwyk testified that he received information from a
reliable informant, that Mr Mhlanga was involved in the manufacture of methaqualone.
Mr Mhlanga would customarily get picked up from his residence and taken to the
location where the drugs were being manufactured. On receiving this information, on
5 June 2016, Warrant Officer Van Schalkwyk followed Mr Mhlanga to a location in
De Deur, Vereeniging, where the drugs were allegedly being manufactured. The
property was surrounded by high walls, an impenetrable gate and there was no street
name or house number. Warrant Officer Van Schalkwyk ascertained through his
Global Positioning System (GPS) that the address was 1[...] M[...] Road, De Deur.

[5] The following day, on 6 June 2016, Warrant Officer Van Schalkwyk completed
a pro forma search warrant for the premises. He presented it to the Acting District
Magistrate at Vereeniging Magistrates’ Court, who duly signed it. On 7 June 2016,
Warrant Officer Van Schalkwyk and another police officer went to the said address where

2 Director of Public Prosecutions, Gauteng Division, Pretoria v Moabi [2017] ZASCA 85; 2017 (2) SACR
384 (SCA) para 7; Director of Public Prosecutions, Gauteng Division, Pretoria v Buthelezi [2019] ZASCA
170; 2020 (2) SACR 113 (SCA) para 7.
3 Sections 3 and 5(b) of the Drugs Act and s 3 and 90 of the Firearms Control Act, respectively.

they saw two men coming out of the premises. Warrant Officer Van Schalkwyk identified
himself as a police officer and explained that he was there to investigate a drugs related
matter, and that he had a warrant entitling him to search the property. The two persons were
Mr Mhlanga and Mr Molefe. A little while later, a third person emerged, Mr Ndaba, the owner
of the property. Warrant Officer Van Schalkwyk then conducted a search of the house in their
presence, and with the consent of Mr Ndaba. No drugs, drug-making equipment or chemicals
were found inside the house. He discovered that the drug manufacturing operations were
being conducted in an out - building. After receiving confirmation from the police officer who
accompanied him that the machine running inside the building was a pill press machine,
Warrant Officer Van Schalkwyk arrested the three suspects and warned them of their rights.
He did not enter the out -building at any stage but called the forensic department who
properly processed the scene.

[6] It is common cause that the search warrant was defective, in that it was directed
to ‘all police officials’ as opposed to naming the individual police officers who would
conduct the search. It described the address of the premises as that reflected on the
GPS, namely, 1[...], M[...] Road, De Deur, Vereeniging (this was an incorrect address,
it should have been Plot 2[...], Road 3). The items identified in the warrant were
‘equipment, chemicals, drugs’. Both Warrant Officer Van Schalkwyk and the Acting
District Court Magistrate said that they were unaware that specific police officers had
to be identified by name on the warrant and that they had the bona fide belief that the
search warrant was correct in all respects. Warrant Officer Van Schalkwyk conceded
that the address was wrong, although the location of the premises was correct as per
his GPS.

[7] The regional court found that because of a ‘formal defect’, the search warrant
was invalid. Accordingly, in light of Malherbe and the majority in S v Pillay and Others
(Pillay ),4 the evidence obtained under the warrant was inadmissible. Once the
magistrate held the evidence procured under the warrant to be inadmissible, the state
closed its case without leading further evidence.5 The respondents were discharged and
acquitted in terms of s 174 of the CPA.6

[8] An appeal to the Gauteng Division of the High Court, Pretoria (the high court)

4 S v Pillay and Others [2004] 1 All SA 61 (SCA); 2004 (2) BCLR 158 (SCA); 2004 (2) SACR 419 (SCA)
(Pillay ) para 84.
5 Ibid para 72.
6 Section 174 of the CPA provides that ‘If, at the close of the case for the prosecution at any trial, the
court is of the opinion that there is no evidence that the accused committed the offence referred to in
the charge or any offence of which he may be convicted on the charge, it may return a verdict of not
guilty’.

was unsuccessful. The high court confirmed the regional court’s interpretation of
Malherbe , that if a search warrant is invalid, then material seized under the warrant is
inadmissible. The high court further found that there had been a flagrant and deliberate
disregard of the respondents’ constitutional rights in that they were not told of the
existence of the search warrant nor informed of their rights as suspects during the
arrest. It held that the issues raised by the DPP were moot as it had, ‘without
provocation’, closed its case after the evidence was ruled inadmissible. This, said the
high court, was a ‘classical case’ where the DPP should have immediately reviewed
the decision of the magistrate.

[9] In the first place, several of the high court’s findings are factually incorrect.
Warrant Officer Van Schalkwyk’s assertion that he informed the respondents that he
had a warrant to search the premises, and that he informed them of their rights, was
not challenged. No serious accusations of disregarding the constitutional rights of the
respondents were levelled against him.

[10] Second, the reference to mootness is difficult to comprehend. The mootness
argument was also advanced in this Court by Mr Zwane, counsel for the respondents.
It appears to be based on the misconception that once the State closed its case without
leading further evidence, the issues became moot and only of academic significance.
Therefore, there was no point in a remittal to the magistrates’ court for the continuation
of the trial as the State would have to re -open its case. This appeal, it was argued,
was nothing more than a backdoor application to re -open the case which would, if
allowed, undermine the rule of law and the respondents’ constitutional rights
(presumably to an acquittal). This reasoning does not properly take into account what
the effect would be, of a finding on appeal that the evidence procured pursuant to the
search warrant, was admissible. In such an event, the acquittals would be set aside and the
trial would have to proceed.

[11] Finally, it is not open to an accused person or the prosecution to appeal the
outcome of a case before it has been finalised. A judgment is a prerequisite to
launching an appeal. Despite the high court’s reference to an immediate review being
permissible, there is no suggestion that the magistrate’s decision to refuse to admit
the evidence amounted to a reviewable irregularity. But even if this were the case, the
review of an alleged irregularity is brought at the end of the proceedings.7

7 See S v Malindi and Others [1990] 4 All SA 433 (AD), the longest running trial in South African legal
history, at the time, where the special entries were brought after judgment.


[12] The fundamental question in this appeal is whether the regional court and the
high court were correct in disallowing the evidence, on the basis that the search
warrant suffered a formal defect. This has been a subject of debate over the years.
Much has been said about the United States’s law of rigid exclusion of any evidence
improperly obtained, as opposed to the position in English law of general inclusion of
any evidence that is relevant.8 South Africa has tended towards a Canadian approach,
where the decision to admit improperly obtained evidence was left largely to the
discretion of the judge, taking into account the individual facts of the case. The interim
Constitution contained no express provisions on how to deal with such evidence.
However, the Constitution has now codified our approach to unconstitutionally
obtained evidence. Section 35(5) of the Constitution provides:
‘Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if
the admission of that evidence would render the trial unfair or otherwise be detrimental to the
administration of justice .’

[13] Section 35(5) has been described as a qualified ‘exclusionary rule of
evidence’,9 which contains a constitutional directive to exclude evidence obtained in
violation of the Bill of Rights, but only where the trial will be unfair if the evidence were
to be admitted or would otherwise be detrimental to the administration of justice. As
such, the discretion of the court is removed. Instead, a decision has to be made to
ascertain whether either of the two consequences will result. If the admission would
render the trial unfair, then the evidence is to be excluded. If admitted, this significantly
undermines the administration of justice. But as the provision states, there may be
other factors which provide a basis for the exclusion.

[14] The two legs are interrelated but separate inquiries. It is notionally possible that
admitting the impugned evidence could damage the administration of justice but leave
the trial fair. However, the opposite is not true and where the admission of evidence

8 Section 78 of the Police and Criminal Evidence Act 1984 provides that:
‘Exclusion of unfair evidence.
(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to
rely to be given if it appears to the court that, having regard to all the circumstances, including the
circumstances in which the evidence was obtained, the admission of the evidence would have such
an adverse effect on the fairness of the proceedings that the court ought not to admit it.
(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.
(3) …’
This section gives judges a discretion to admit unlawfully obtained evidence. See also Elias v Pasmore
[1934] 2 K.B. 164; [1934] 1 WLUK 57; Price v Messenger [1800] 5 WLUK 45; 126 E.R. 1213 (1800);
Dillon v O’Brien and Davis [1887] 1 WLUK 5; (1887) 16 Cox C.C. 245.
9 Andrew Barney August v The State (962/2022) [2023] ZASCA 170 (4 December 2023) para 12.
Quoting S v Kotzè [2009] ZASCA 93; 2010 (1) SACR 100 (SCA); [2010] 1 All SA 220 (SCA) para 21.

renders the trial unfair, this will always be detrimental to the administration of justice.
Central to the latter inquiry is the public interest.10

[15] Section 35(5) is indicative of the tension between respect for the Bill of Rights
and respect for the judicial process. There are competing social interests in
determining whether the impugned evidence should be admissible. The one is the
social imperative to bring criminals to book, especially in South Africa, with its
burgeoning and uncontrollable crime rate. But public policy not only demands that the
guilty are held accountable but also that the police and prosecutorial officers uphold
and respect the Bill of Rights. A trial which is not fair to an accused, will bring the
administration of justice into disrepute. But an overemphasis on a technicality which
leads to an acquittal of an accused who has committed a serious crime, will attach
public opprobrium and engender a distrust in the legal system. This too, will be
detrimental to the administration of justice.

[16] Several broad principles have emerged. Initially courts distinguished where real
evidence had been obtained by improper means as opposed to derivative evidence
obtained from the accused themselves. Derivative evidence is generally that which is
extracted through confessions and pointing outs and entails self -incrimination by the
accused person. Courts more readily received improperly obtained evidence, which
was real evidence, in the form of tangible objects. As this Court stated in S v Mthembu:
‘The reason was that such evidence usually bore the hallmark of objective reality compared
with narrative testimony that depends on the say -so of a witness. Real evidence is an object
which, upon proper identification, becomes, of itself, evidence . . . ’11

[17] It has been accepted that this distinction can be misleading, as highly probative
real evidence is often procured as a result of a confession or admission. The more
significant consideration is whether the accused was coerced into providing the
evidence. Any evidence which is procured through assaults or torture will always
render the trial unfair. Even where the evidence was reliable and necessary to secure
the conviction, the admission of such evidence will be detrimental to the administration
of justice.

[18] Of greater importance is the seriousness of the infringement of the Bill of Rights

10 S v Tandwa and Others [2007] ZASCA 34; [2007] SCA 34 (RSA); 2008 (1) SACR 613 (SCA) paras
116-118; S v Mthembu 2008] ZASCA 51; [2008] 3 All SA 159 (SCA); [2008] 4 All SA 517 (SCA); 2008
(2) SACR 407 (SCA) (Mthembu ) para 25.
11 Mthembu para 22.

in the procurement of the evidence. Police conduct which constitutes a flagrant and
deliberate disregard of the rights of the accused, will be viewed in a different light to
minor or technical infringements. A rights violation is not severe where the police acted
in good faith, or where their conduct was objectively reasonable. Thus, if the conduct
of the police is justifiable, the impugned evidence is less likely to be excluded, even if
it was obtained unconstitutionally. ‘ The closer the connection is between the violation
of the right and the procurement of the evidence, the more likely it will be that the
reception of the evidence will fall foul of one of the two conditions set out in section
35(5). ’12

[19] In S v Dos Santos and Another,13 the regional magistrate who issued the
warrant was not a magistrate as defined in s 21 of the CPA, thus rendering the warrant
defective.14 A search under the warrant uncovered 153 unpolished diamonds and related
paraphernalia.15 This Court, in finding that the evidence obtained under the warrant was
admissible, said:
‘Here the investigating team did not act in flagrant disregard of the first appellant’s
constitutional rights. On the contrary, they sought judicial authority for their conduct. The
judicial imprimatur was an attempt to uphold the law in spirit and letter. None of those
executing the warrant knew that it suffered a defect. Eschewing the local Magistrates’ Court
in favour of one located in Cape Town was designed to protect the investigation and preserve
the element of surprise . . .
In those circumstances it is plain that the task team was not attempting to garner any unfair
advantage for themselves. Rather it plainly was an endeavour to protect the interests of the
first appellant. For that they should be commended, not penalised by having the evidence that
has been secured pursuant to that warrant excluded. ’16

[20] Similarly, in S v Tiry and Others (Tiry),17 it was common cause that the search
warrant was issued irregularly in that no specific crimes or names of possible suspects
were mentioned in the warrant.18 Notwithstanding these defects, this Court was of the
view that taking the evidence as a whole, the accused had a fair trial, and the evidence
of petroleum storage tanks obtained under the warrant was correctly accepted by the

12 D T Zeffertt and A P Paizes The South African Law of Evidence 3 ed (2017) (Zeffertt and Paizes) at
803.
13 S v Dos Santos and Another [2010] ZASCA 73; 2010 (2) SACR 382 (SCA); [2010] 4 All SA 132
(SCA).
14 Ibid para 21.
15 Ibid para 3.
16 Ibid paras 23-24.
17 S v Tiry and Others [2020] ZASCA 137; 2021 (1) SACR 349 (SCA); [2021] 1All SA 80 (SCA) (Tiry).
18 Ibid para 45.

trial court.19 This Court held that s 35(5) was ‘not an absolute exclusionary provision
for evidence obtained in violation of an accused’s constitutional rights’.20

[21] In S v Van Deventer and Another ,21 the search warrant was issued in terms of
the wrong statute. The court held that the violation of the appellant’s rights was of a
technical rather than a flagrant nature and that the police officers acted bona fide .22
Moreover, if the evidence could be obtained by lawful means, the inclusion thereof
would generally not render the trial unfair or be detrimental to the administration of
justice. The search, in Tiry, yielded valuable and real evidence of a vast network of theft of
petroleum products, as well as actual products stolen from Sasol.23

[22] It is significant that this Court’s majority judgment in Pillay, on which the regional
court relied, pre -dated the cases referred to above. The majority in Pillay found that
because false information was put up to obtain permission to monitor certain phone
calls, derivative evidence obtained pursuant to the calls was inadmissible.24 This
included real evidence in the form of bank notes concealed in the roof. The minority
would have admitted the evidence, inter alia , on the basis that the concealed money
was real evidence which would have existed independently of the rights violation.25
The exclusion of the evidence, resulting in an acquittal, would result in a loss of
respect, not only for the judicial process, but also for the Bill of Rights, stated the
minority.26

[23] In this matter, both the regional court and the high court placed great reliance
on this Court’s decision in Malherbe . There, pornographic material was discovered on
Mr Malherbe’s laptop, pursuant to a defective search warrant. Once the material was
found to be admissible, Mr Malherbe made formal admissions in which he admitted to
being in possession of pornographic images. He was found guilty on those counts. As
observed by the Court:
‘Section 35(5) of the Constitution provides that evidence obtained in a manner that violates
the Bill of Rights must be excluded if the admission of that evidence would render the trial
unfair or otherwise be detrimental to the administration of justice. In this case there can be no
doubt that the decision that the search warrant was valid and that the items seized from

19 Ibid para 48.
20 Ibid para 45.
21 S v Van Deventer and Another 2012 (2) SACR 263 (WCC) para 50.
22 Ibid paras 57-58.
23 Tiry para 48.
24 Pillay para 98.
25 Ibid para 16.
26 Ibid para 17.

Mr Malherbe’s home were lawfully seized, compelled the making of the admissions.
Therefore, the evidence obtained through the invalid search warrant rendered the trial unfair
and should have been excluded. Anything done pursuant thereto was unlawful. ’27

[24] That Mr Malherbe felt compelled to admit to the offences once the evidence
obtained under an unlawful warrant was admitted, had a manifest impact on the
fairness of his trial. When this Court stated that the evidence seized in terms of an invalid
search warrant should have been excluded, this was with specific reference to the facts in
that case, rather than a general statement of the law.

[25] Zeffertt and Paizes remarked that s 35(5), at first blush, seems to be a departure
from the discretionary approach of pre-1996 but once the connection between fairness
and interests of justice are fully understood, one could be inclined to think the
distinction could be one of form rather than substance.28 In my view s 35(5), best
understood, is not so much a balancing test or a discretionary approach, but a rule
which provides for the exclusion if one of the two conditions is met. Whether the
admission of evidence would render the trial unfair is responsive to a range of issues,
often specific to a particular trial. These include the nature of the evidence, its
probative value and how it was obtained, particularly the conduct of the police in its
procurement. Careful consideration should be given to these factors. The extent of the
procedural failure on the part of the police should be viewed in the light of possible
detriment that would be caused to the administration of justice by incentives not to
follow due process. Holistic consideration of all these would then permit a conclusion
of whether the trial is to be rendered unfair, or otherwise detrimental to the
administration of justice.

[26] The complaint here is that the search warrant was formally defective in two
aspects, namely the incorrect address and because it was addressed to all police
officers, without specifically naming Warrant Officer Van Schalkwyk. As far as the
address is concerned, it was not unreasonable to provide the address which was
reflected on the GPS. In any event, the correct premises were identified. Regarding
the reference to ‘all police officers’, this was the pro forma search warrant provided to
the police and available at all police stations at the time. Both the Acting Magistrate
and Warrant Officer Van Schalkwyk were unaware of the findings of the Constitutional
Court that a search warrant must be directed at a specific police officer,29 and

27 Malherbe para 10.
28 Zeffertt and Paizes at 799.
29 Minister for Safety and Security v Van Der Merwe and Others [2011] ZACC 19; 2011 (5) SA 61

genuinely believed that the pro forma warrant was correct. This was not unreasonable
in the circumstances and certainly cannot be attributed to any male fides on the part of the
police.

[27] Moreover, as conceded by Mr Zwane, Warrant Officer Van Schalkwyk would
have been well within his rights to enter without a search warrant in terms of s 22 of
the CPA. This section provides that a police officer who, on reasonable grounds,
believes that a search warrant would have been issued to him if he had applied, and
that the delay in obtaining the warrant would defeat the object of such a search, may
enter and seize items on a premises. Warrant Officer Van Schalkwyk agreed that it
was not necessary for the police to obtain a search warrant before entering the
premises. Nonetheless, he acted with greater circumspection than necessary and
applied for a warrant.

[28] There are other factors which weigh in favour of admitting the evidence, despite
the formal defect. The search warrant unearthed real evidence in the form of tangible
objects – the drugs and the drug manufacturing equipment, the probative value of
which was unassailable. The impact of the rights violation was not severe. It did not
stem from deliberate conduct on the part of the police and there was no suggestion of
coercion. Viewed in its totality, the conduct of the police was reasonable.

[29] Warrant Officer Van Schalkwyk was at pains to point out that there had been
no complaints to date about the manner in which the search was conducted. He
informed the respondents of their right to an attorney. He told them that he had
received information that drugs were being manufactured on the premises and that
the police had come to execute a search warrant based on information received. It is
common cause that the evidence could have been procured by lawful means, namely
conducting a search and seizure without a warrant. Nonetheless, Warrant Officer Van
Schalkwyk sought judicial sanction for the search. He should not be penalised for this.

[30] On the facts of this particular case, the admission of the impugned evidence
would not render the trial unfair or otherwise bring the administration of justice into
disrepute. The appeal should be upheld.

[31] Finally, it is necessary to deal with the conduct of the respondents’ attorneys in
this matter. When no heads of argument were filed, in early January 2025, the

(CC); 2011 (9) BCLR 961; 2011 (2) SACR 301 (CC) para 55.

Registrar of this Court contacted VM Mashele Attorneys, who represented the
respondents in the high court. She was informed by Mr Victor Mashele that he had
withdrawn and that the new attorney on record was Mr Phaladi Kanyane. Despite a
request for a notice of withdrawal and a notice of appointment of the new attorneys,
none was forthcoming. (Copies, without proof of service, were provided after the
hearing at the request of the Court on 25 April 2025).

[32] On 16 January 2025, the Registrar directed that VM Mashele Attorneys file their
heads of argument within 10 days. She was informed by Phatshoane Henny
Attorneys, the Bloemfontein correspondents, that they had received an email from
VM Mashele Attorneys to file heads of argument, but Mr Mashele refused to formally
appoint them or pay a deposit. Despite being non -compliant, on 28 February 2025
the Registrar accepted the heads of argument signed by Mr Zwane, apparently
instructed by Mr Kanyane.

[33] On 7 March, the date of the appeal, neither Counsel nor the attorneys for the
respondents were present. Counsel for the appellant, Ms Maphalala, indicated that
she had fortuitously discovered a few days prior that Mr Siphelele Zwane (Mr Zwane)
was counsel for the respondents. She called him during a brief recess, and he
informed her that his father was sick, and he had to turn back. The matter was
postponed to 28 March 2025. The State undertook to ensure that the respondents
would be personally notified of the date. Notices of set down were sent by the Registrar
to all the legal representatives.

[34] On 28 March 2025, Mr Zwane and his attorney, Mr Phaladi Kanyane were
present. In response to the bench’s query as to their non -appearance, we were
informed that Mr Zwane had been on his way to court when he was notified that his
child was ill. He immediately returned to Johannesburg. The attorney, Mr Kanyane,
we were informed, arrived at Court at about 12h00 due to problems with traffic,
although he did not notify anyone at Court of his presence.

[35] Such conduct is unbecoming of legal practitioners. It shows disregard for this
Court and the legal profession. The legal practitioners were informed that this Court is
considering reporting them to their professional bodies and were invited to make
affidavits explaining their conduct. Either inadequate explanations, or no affidavit at
all, have been provided. A copy of this judgment will be made available to the relevant
professional bodies, together with the affidavits, with a request that the conduct of Mr

Mashele, Mr Kanyane and Mr Zwane be investigated.

[36] Had it not been in the interests of justice to proceed with the hearing, the matter
would have been struck from the roll.

[37] The following order is made:
1 The appeal is upheld.
2 The order of the full bench is set aside and substituted with the following:
‘1 The appeal is upheld.
2 The order of the regional court is set aside and replaced with the following:
(a) The material seized under the search warrant is found to be admissible.
(b) The acquittals on counts 1, 2, 3, 4 and 5 are set aside.’
3 The matter is remitted back to the regional court to continue with the trial.



C E HEATON NICHOLLS
JUDGE OF APPEAL

Appearances


For the appellant: N G Maphalala (with D Molokomme)
Instructed by: Director of Public Prosecutions, Pretoria
Director of Public Prosecutions, Bloemfontein

For the respondents: S G Zwane
Phaladi Kanyane Attorneys, Soweto.