THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case no: 503/2002
REPORTABLE
In the matter between:
Oliver Michael POWELL, NO First Appellant
and ten other appellants
and
The Honourable Mr Justice WJ Van der Merwe
First respondent
Magistrate AC FREUND Second respondent
DIRECTORATE OF SPECIAL OPERATIONS
Third Respondent
DIRECTOR OF THE DIRECTORATE OF SPECIAL
OPERATIONS
Fourth Respondent
MINISTER OF JUSTICE Fifth Respondent
Before: Harms JA, Cameron JA, Brand JA, Conradie JA
and Southwood AJA
Appeal: 4 March 2004
Judgment: 1 April 2004
2
National Prosecuting Authority Ac t 32 of 1998 – Authorisation of
investigation: requirements – Sear ch warrants: requirements for
issue and requirements for validity – Voidness for over-breadth
JUDGMENT
_____________________________________________________
CAMERON JA:
[1] At issue is the lawfulness of a search and seizure carried out
under warrant at the Johannesb urg home and business of the
first appellant, Mr Powell, in October 1999, as well as a similar
operation at his farm in Ellisras a fortnight later. The searches
were carried out in reliance on the National Prosecuting
Authority Act 32 of 1998 (the NPA Act). Powell seeks to have
the searches declared illegal and the seized documents
returned to him, together with an interdict against the
disclosure of information gained from them. He also sought
constitutional and other relief in which he no longer persists.
His challenges all failed before van der Westhuiz en J in the
Pretoria High Court, with whose leave he now appeals.
[2] Powell is an insolvency practi tioner. He attends to the
administration and winding-up of companies in liquidation, to
3
insolvent estates and judicial management of corporations, and
acts as a receiver for credito rs under schemes of arrangement.
In this he makes himself avai lable for appointment by the
Master of the High Court as a st atutory liquidator. It is a
lucrative business, for those w ho succeed in it as Powell has,
and on the assertions of both pa rties not without its share of
rivalry, intrigue and questionable dealing. In September 1999 a
national Sunday newspaper published claims, which Powell
vigorously denied, that he had a corrupt association with a
senior member of the Master’s office in the Pretoria High Court.
As the dispute with the newspaper intensified, the Minister of
Justice and Constitutional De velopment (the Minister) in
October appointed a departmental investigation team to probe
the appointment of liquidators by the Pretoria Master’s office.
Four days later, on 22 October, the head of the Investigating
Directorate: Serious Economic Offences (IDSEO) established
under the NPA Act,
1 Advocate Jan Swanepoel, invoked the
statute to institute a preparatory investigation 2 into alleged
irregularities in the appointment of liquidators and curators at
the Pretoria Master. He desi gnated an advocate on his staff,
1 The NPA Act s 7(1)(a) gives the President the power to establish by Proclamation no more
than three investigating directorates in the office of the National Director of Public
Prosecutions in respect of specified offences or specified categories of offences.
4
Ms Gerda Ferreira, to conduct the investigation on his behalf. 3
This clothed Ferreira with power to apply for a search warrant,
which she did the next day. On Saturday evening 23 October,
Van der Merwe J granted the warrant 4 and the search took
place on the Sunday. A large number of docum ents and files
were seized at Powell’s home and business premises. More
were taken later at his farm, on a warrant Ferreira obtained
from the magistrate at Ellisras.
[3] Five months later, in Ma rch 2000, after the Directorate had
returned the bulk of the docum ents seized, Powell, his farm
manager and a number of trusts and companies associated
with his business and other interests (the present appellants, to
whom I refer collectively as ‘Powell’) brought urgent
proceedings claiming restoration of the rest. He joined Van der
Merwe J as first res pondent (this Court ruled later that citing
high court judges who issue statutory search warrants is
wrong),5 and the magistrate at E llisras as the second
2 NPA Act s 28(13).
3 NPA Act s 28(2)(a): ‘The Investigating Director may, if he or she decides to hold an inquiry,
at any time prior to or during the holding of the inquiry designate any person referred to in
section 7(4) to conduct the inquiry, or any part thereof, on his or her behalf and to report to
him or her.’ Section 7(4) sets out the categories of staff who assist the Investigating Director
in the exercise of his powers and performance of his functions.
4 NPA Act s 29(5).
5 Pretoria Portland Cement Co Ltd and another v Competition Commission and others 2003
5
respondent. The Directorate is the third respondent,
Swanepoel the fourth, and the Mi nister the fifth. The latter
three oppose the proceedings, wh ich started before van der
Westhuizen J in September 2000. A striking-out application
was argued in September and December, after which judgment
was reserved. While judgm ent was pending Powell applied to
re-open his case, and both sides filed supplementary affidavits.
The main relief was eventua lly argued in October 2001 and
judgment reserved. Van der Westhuizen J dismissed the
application in March 2002, his rea sons following in April. He
granted leave to appeal in September 2002.
[4] The complaints Powell made a bout the search were numerous,
and they were voluminously purs ued over court papers that
eventually totalled 1700 pages. Be fore us Mr Slomowitz, who
appeared for Powell on appeal, narrowed the attack. He
contended that the statutory inve stigation on the basis of which
the warrants were issued was not lawfully initiated; that the
warrants themselves should never have been granted; and that
their terms were fatally over-broad.
(2) SA 385 (SCA) paras 13-42.
6
First attack: Initiating a preparat ory investigation in terms of s
28(13) of the NPA Act
[5] The power to launch a preparatory investigation that
Swanepoel invoked on 22 October 1999 was scrutinised
together with other provisions of the NPA Act in the Hyundai
case,7 where the Constitutional Co urt considered the scheme
and intention of the statute. A preparatory investigation may be
held if the investigating direct or is uncertain whether the
grounds exist to hold a plenary investigation under s 28(1), 8
since for that a reasonable susp icion that a specified offence
(or an attempt) has been or is being committed is necessary.
Langa DP explained as follows t he structure of the Act, the
purpose of the investigating direct orates it establishes, and the
power to hold preparatory investigations:
‘The investigating directorate is a special unit established under the Act to
conduct investigations into serious and complex offences. If it were
unable to commence investigations until it had a reas onable suspicion
that a specified offence had been committ ed, initial investigations which
may be sensitive and crucial would have been beyond its jurisdiction. The
provisions of the Act authorising t he investigating directorate to engage in
preparatory investigations serve the purpose of enabling the investigating
directorate to be involved in sensitiv e investigations from an early stage.
The purpose therefore is to assist the investigati ng director to cross the
threshold from a mere suspicion that a specified offence has been
6 Van Rooyen and others v The State and others (General Council of the Bar of South Africa
intervening) 2002 (5) SA 246 (CC).
7 Investigating Directorate: Serious Economic Offences and others v Hyundai Motor
Distributors (Pty) Ltd and others: in re Hyundai Motor Distributors (Pty) Ltd and others v Smit
NO and others 2001 (1) SA 545 (CC). After the decision the Act was amended: Act 61 of
2000, assented to 5 December 2000, which came into operation on 12 January 2001.
8 The 2001 Act made the terminology of s 28(1) consistent with that of 28(13) by changing
‘inquiry’ in s 28(1) to ‘investigation’.
7
committed to a reasonable suspicion, which is the prerequisite for the
holding of an inquiry.’9
When would it be appropriate for an investigating director to
hold a preliminary rather than a pl enary investigation? Langa
DP said:
‘At least two kinds of doubt may give rise to a decision to conduct a
preparatory investigation rather t han an inquiry: doubt whether there is
reason to believe that an offenc e has been committed, on the one hand,
and doubt whether an offence, suspect ed to have been committed, is in
fact a specified offence.’10
He elaborated by emphasising the contingent and preliminary
nature of the preparatory investigation:
‘This form of procedure is instituted in order to enable the investigating
director to determine if there are reasonable grounds to conduct an
inquiry. It is therefore a preliminary step and is not an end in itself. It is a
procedure that is available to an investigating director who has insufficient
grounds or information to form a r easonable suspicion that a specified
offence has been committed. A mere suspicion may therefore trigger a
preparatory investigation, prov ided the purpose is to enable the
investigating director to decide whether or not there are in fact reasonable
grounds for a suspicion that a specified offence has been committed.’11
[6] At the time Powell’s premis es were searched, the President
had established two investigating directorates: one for
organised crime and public safe ty offences; and another for
serious economic offences. (A third was later established for
corruption.)
12 The NPA Act defines a ‘specified offence’ as ‘any
offence which in the opinion of the investigating director falls
9 2001 (1) SA 545 para 44.
10 2001 (1) SA 545 para 7.
11 2001 (1) SA 545 para 31.
12 The gazetting details are set out in the Hyundai judgment 2001 (1) SA 545 para 4.
8
within the category of offences set out in the proclamation
referred to in s 7(1) in respect of the inve stigating directorate
concerned’.13 The categories of offe nce in respect of which
Swanepoel (as investigating di rector for serious economic
offences) had to exercise his functions were gazetted as:
‘(a) Any offence of –
(i) fraud;
(ii) theft ;
(iii) forgery and uttering; or
(iv) corruption in terms of t he Corruption Act, 1992 (Act No. 94 of
1992); or
(b) any other –
(i) economic common law offence; or
(ii) economic offence in contravention of any statutory provision,
which involves patrimonial prejudice or potential patrimonial prejudice
to the State, any body corporate, trust, institution or person,
which is of a serious and complicated nature.’
14
[7] In a document dated an d signed on 22 October 1999,
Swanepoel sought to initiate a preparatory investigation as
follows (my translation):
‘INSTITUTION OF A PREPARATOR Y INVESTIGATION IN TERMS OF
SECTION 28(13) OF THE NATION AL PROSECUTING AUTHORITY
ACT, 32 OF 1998
Whereas I consider it necessary to hear evidence to enable me to
determine if there are reasonable grounds to hold an inquiry in terms of
section 28(1)(a) of the National Pr osecuting Authority Act, 32 of 1998
concerning alleged irregularities at t he Master of the Hi gh Court, Pretoria,
in regard to the appointment of liquidators and curators,
Therefore I have decided to hold a pr eparatory investigation in terms of
section 28(13) of Act 32 of 1998.’
13 NPA Act s 26(1).
14 Proclamation R 123, Government Gazette 19579, 4 December 1998.
9
[8] He stipulated no offence in s eeking to institute the preparatory
investigation. He referred only to ‘alleged irregularities’. To
this he added a location (the P retoria Master’s office) and a
focus (the appointment of li quidators and curators). But
‘irregularity’ is a wide word. It can encompass any behaviour,
practice or phenomenon that de viates from a norm or rule,
standard or convention. 15 The deviation does not have to be
criminal. And if it is criminal , it does not have to be one of the
scheduled crimes, or if scheduled ‘of a serious and complicated
nature’.
[9] On the face of the auth ority Swanepoel signed, a preparatory
investigation into ‘alleged irregu larities’ in the Master’s office
could therefore encompass variou s forms of conduct, including
–
(A) criminal irregularities consti tuting specified offences (such
as corruption, fraud and theft of a seri ous and complicated
nature);
15 Freely adapting from the Concise Oxford Di ctionary. Swanepoel’s words were ‘beweerde
onreëlmatighede’. The adjective ‘onreëlm atig’ is defined in Labuschagne and Eksteen’s
Verklarende Afrikaanse Woordeboek (8ed, 1993) as ‘sonder reëlmaat, sonder inagneming
van vaste reels, van die gangbare gedragspatr oon’, ‘afwykend van die gebruiklike patroon’,
‘sonder enige orde, nie volgens voorskrif of gewoonte nie’.
10
(B) criminal irregularities not constituting specified offences
(such as fraud, theft and corruption of a trivial or uncomplicated
nature); or
(C) non-criminal deviations from norms, rules, standards and
conventions in regard to appointments.
[10] The last category coul d embrace unco rrupt but erroneous
preference given to certain liquidators because of mistaken
understanding or disregard of stat utory requirements, honest
but mistaken preference for certain liquidat ors in ignorance or
disregard of office rules, or, more widely still, irregular office
practices such as unwitting disregard of civil service regulations
in appointments, unprofessional service delivery relating to
appointments, or even breakdown of regular office organisation
and function in regard to appo intments resulting from
systematic misfiling and loss of documents and records.
[11] Only type-A irregularities fall within the investigating
directorate’s powers and functions.
16 Type-B irregularities fall
outside the investigating director ’s functions and should be left
16 NPA Act chapter 5; Hyundai 2001 (1) SA 545 (CC).
11
to the police to deal with. 17 Type-C irregularities are the
business of neither the police no r the investigating directorate.
They are matters for office management, organisation and
discipline.
[12] The statute empowers the in vestigating director to hold a
plenary investigation in terms of s 28(1) if there is a reasonable
suspicion that type-A irregular ities (or attempts) are occurring
or have occurred. In addition, under the Hyundai analysis the
statute in certain ci rcumstances gives the investigating director
power to act when he or she is confronted with type-B
irregularities. A preparatory inve stigation may be held not only
if the investigating director is uncertain whether an offence
(which definitely would be a specified offence) has been
committed at all (occurrence-unc ertainty), but also if the
investigating director in fa ct has reasonable grounds for
suspecting an offence, but d oes not have reasonable grounds
for suspecting that the offence in question is specified – in
other words if the investigating director reasonably suspects a
17 Hyundai 2001 (1) SA 545 para 47 – non-specified offences are those ‘which should be left
to the police to deal with’.
12
type-B irregularity but is uncer tain whether it is a type-A
irregularity (category-uncertainty).
[13] In Hyundai Langa DP left open the possibility that doubts
regarding more than the occurrence or cate gory of an offence
could conduce to a s 28(13) inquiry.18 He did not elaborate, but
other kinds of doubt that sugges t themselves include doubts
about the nature, sufficiency, qu ality and availability of the
evidence forming the basis fo r the investigating director’s
suspicion regarding the offence. In all these cases the
preparatory investigation power is available.
[14] What is clear however is that to launch a preparatory
investigation the investigating director must have at least a
suspicion that some form of of fence (or an attempt) is being or
has been committed. There may be uncertainty about the fact
of the offence or about its ca tegorisation, or about the nature
and strength of the evidence for i t. But an offence there must
be: and one that is capable of constituting a specified offence.
18 2001 (1) SA 545 para 7 (‘At least two kinds of doubt …’).
13
[15] Mr Maleka, who appeared for the investigating director and
the Minister, accepted that ‘alleged irregularities’ included non-
offences, but contended that s 28(13) enabled the investigating
director to gather evidence even when unable to stipulate any
offence. The stipulation, he contended, could follow as a
consequence of the preparatory in vestigation. It was not its
pre-condition. On this argument the statute would empower
the investigating director to in vestigate non-offences, in search
of an offence. That cannot in my view be correct. The statute
gives the investigating director no jurisdiction to invoke the
preparatory investigation mach inery when no offence is in
issue at all. The investigating director was no more entitled to
investigate ‘alleged irregularitie s’ that did not constitute
offences than he was to investigate office rivalries or jealousies
or misspelling of names or innocent misapplication of
regulations in the appointment of liquidators.
[16] In his affidavits Swanepoel states that ‘although no offences
were specified by me when the preparatory investigation was
instituted, it was clear that the most likely offences were
corruption.’ And he points out that Ferreira did mention
‘corruption’ in the affidavit she submitted to Van der Merwe J
14
the next day. But why did Swanepoel not himself mention
corruption in initiating the p reparatory investigation? He
records that his attitude was that s 28(13) did not require him to
stipulate a specified offence:
‘It is my interpretation that at the stage when a preparatory investigation is
instituted, it is not necessary or even possible to specify the specified
offence being investigated.’
[17] This stance the High Cour t upheld. The judge recorded that
Powell’s argument on this point had troubled him to some
extent, but that to uphold it w ould be to adopt ‘an overly literal
approach’ to reading the NPA Ac t. He pointed out that there
could not be absolute certaint y ‘at such an early stage as to
exactly which offence may have been committed or may be
planned’:
‘Criminal investigations obviously start with perhaps one particular
suspected offence in mind, and then re sult in charges relating to other
offences. Furthermore, charge s heets can be amended. It would be a
cynical and excessively literal approach to expect that one or more
specified offences must be menti oned by name, well k nowing that the
investigation which will follow ma y produce evidence pointing to an
offence which is formally different.’
[18] The learned judge upheld t he respondents’ contention that
‘alleged irregularities’ was not overbroad, because the phrase
referred to a specific official, in a particular city, and specifically
to the appointment of liquidators and curators. There could
15
therefore be no doubt ‘in the mi nds of those conducting the
investigation, or those being inve stigated, as to the object of
the investigation’. Nor could there be any prejudice for Powell.
He concluded that ‘for purposes of formal or technical
compliance, it might have been pre ferable if, for example, the
crime of corruption were mention ed by name in addition to the
reference to alleged irregularities’:
‘However, the mere mentioning by name of a specified offence, for
example corruption, would not necessa rily have resulted in narrowing the
scope of the investigation, dependi ng on the presence or absence of
other detail. To investigate corruption, fraud or extortion in the office of the
Master, or even in the office of the Master in Pretoria (without reference to
for example the appointment of li quidators or curators) would not
necessarily be any less of a fishing expedition than the formulation used
in this case. In fact it could be wider. Any corruption, fraud or extortion by
any person in or attached to such of fice, could then be investigated. The
purpose is clarity, the narrowing of the scope of an investigation and the
protection of the basic rights of thos e involved, rather than slavishness to
a formal literal interpretation.’
[19] I cannot agree with this approach, which do es not seem to
me to be a correct application of Hyundai. The question
whether the investigating director has to stipulate the offence
he or she has in mind in initia ting a preparatory investigation
does not arise from a contest between literal an d substantive
approaches to reading the Act. Nor is it a technical or formal
matter. It stems from the requirement of legality, which
underlies our Constitution, and whic h sets limits to all public
16
power,19 and scrutinises its exercise for conformity with those
limits.
[20] The NPA Act grants the in vestigating director power to
investigate only specified off ences, and to exercise functions
regarding other offences only in rel ation to that power. It does
not grant independent power to investigate non-specified
offences, and it confers no jurisdiction to investigate
irregularities that are not offences at all. Giving due effect to
this limitation becomes part icularly important when one
considers the very wide pow ers the Act does grant the
Directorate once a preparatory or plenary investigation has
been properly instituted. 20 The scope of those powers
indicates that the investigating director’s decision to initiate an
inquiry must be properly tailored to the ends the statute permits
him to pursue, and must be expressed in terms that commit
him and his staff to the pursuit of those ends, and no more.
[21] In purporting to institute a preparatory investigation into
‘alleged irregularities’ the invest igating director initiated a
19 Pharmaceutical Manufacturers Association of SA and another: in re ex parte President of
the Republic of South Africa and others 2000 (2) SA 674 (CC) para 39.
20 Compare Hyundai 2001 (1) SA 545 paras 9, 28, 37, 43, 46.
17
process that was overbroad because it encompassed elements
that fell outside his statutorily assigned domain. In so doing he
acted beyond the powers the statute entrusted to him. The fact
that the term he chose was br oad enough to cover specified
offences (and other offences that might relate to his functions
regarding specified offences) made no difference in the context
of this statute, since in choosi ng not to differentiate he made it
impossible for himself, and his functionaries, and those relying
on the assertions of his functi onaries, to distinguish between
what he intended lawfully and narrowly and what he intended
unlawfully and overbroadly. T he untoward practical effect of
this overbreadth on Ferreira’s designation, and on the search
warrants eventually issued, will later emerge.
[22] It is no answer to say, as Swanepoel does, that it was ‘clear
that the most likely offences w ere corruption’, or, as the judge
found, that in the minds of the investigators and the
investigated there was no doubt as to the object of the
investigation. The question is not whether it was clear (a
matter on which I feel great er apprehension than the learned
judge), but what powers the inve stigating director purported to
arrogate to himself and his staff in initiating the investigation.
18
The principle of lega lity required him to confine himself in the
exercise of those powers to what the statute permitted, and in
specifying ‘alleged irregularities’ he went beyond that. To insist
that he should not have done so is not technical or formal. It is
a requirement of constitutional su bstance, relating to the ambit
of the investigating director’s powers and the pre-conditions for
their lawful exercise.
[23] It is true that the statute empowers the investigating director
to range broadly in carrying out duties. Given the problems of
corruption, fraud, theft and ot her serious economic offences
that beset our country, this is both necessary and right.21 What
Swanepoel could do lawfully was indeed very wide. But the
statute did not give him unlim ited power, nor power to range
beyond its boundaries. Nor does it mean that confining him to
the lawful ambit of his powers was pointless or formalistic.
Clarity and precision are the allies of order in law. Imprecision
and vagueness all too often are its enemies.
[24] The very ambit of the offenc es gazetted – together with the
fact that a ‘specified offence’ means any offence which in the
19
investigating director’s opinion falls within the category of
gazetted offences 22 – shows that this approach is no undue
encumbrance. Confining himself and his staff within the lawful
domain was a requirement of legalit y. Its object was to ensure
that the investigation was p ursued regularly and properly, and
not haphazardly and unboundedly.
[25] In determining whether the in vestigating director initiated the
investigation lawfully, the question is not how broadly his actual
investigation might eventually range, but whether he could from
the outset arrogate to himself the power to investigate
irregularities which constituted neither specified offences nor
offences. That he could not lawfully do.
[26] The judge invoked the de cision of this Court in Bogoshi and
another v Director, Office for Serious Economic Offences and
others23 for the conclusion that an of fence does not have to be
stipulated when a preparatory investigation is instituted.
Bogoshi was not decided under t he NPA Act, but under its
predecessor, the Investigation of Serious Economic Offences
21 See Hyundai 2001 (1) SA 545 para 53.
22 NPA Act s 26(1).
23 1996 (1) SA 785 (A).
20
Act 117 of 1991. The 1991 Ac t, unlike the NPA Act, did not
contain the concept of ‘specifie d offences’, nor did it require
that the offences subject to it be specified by notice in the
gazette.24 The 1991 Act eschewed specification, instead
defining a ‘serious economic off ence’ simply as ‘any offence
which in the opinion of t he Director is a serious and
complicated economic offence’. 25 The NPA Act introduced
greater clarity and precision by defining more rigorously the
ambit of the investigating directorate’s powers.
[27] The contrast between the two statutes underscores the
differences between Bogoshi and the present case. In
Bogoshi, the Director was empowere d to hold an inquiry if
there was reason to suspect that a ‘serious economic offence’
had been committed. What that constituted was a matter for
the Director’s opinion. Exercis ing this power in 1991, the
Director issued a search warrant and a summons. Both
referred to ‘alleged irregularities concerning claims’ an attorney
had submitted to the statutory Road Accidents Fund. This
24 NPA Act s 7(2): ‘A proclamation … must specif y the offences or the categories of offences
for which an investigating directorate has been established.’
25 Act 117 of 1991, s 1.
21
Court found the formulation ‘vague, but not fatally so’. 26 I n
regard to the warrants, the formulation was found to be in order
because ‘the discretion which is afforded those authorised is,
as the Court a quo found, in accordance with the terms of the
section itself’.27 This is far from the present. The NPA Act is a
post-constitutional statute, which attempted to remedy
constitutional flaws in its predecessor. 28 It does not leave the
meaning of the offences it covers to the opinion of the
investigating director. It require s the President to specify them
by notice in the gaze tte. The gazette in question contains a
detailed specification that limit s very considerably the opinion
the investigating director may f orm as to what a specified
offence is. Bogoshi can therefore not go vern the NPA Act, nor
justify Swanepoel’s omission to stipulate a lawful ambit for the
preparatory investigation.
[28] I therefore conclude that Swanepoel did not validly invoke s
28(13). It is unnecessary to decide whether his invalid
invocation is intrinsically fatal to all steps taken in reliance on it,
since each of those steps – his designation of subordinates to
26 1996 (1) SA 785 796D-E.
27 1996 (1) SA 785 (A) 797D-E.
28 See Park-Ross and another v Director: Office for Serious Economic Offences 1995 (2) SA
22
carry out the inquiry; and the s earch warrants they obtained –
was, as will appear, tainted with the same disability. It is in fact
a striking feature of the ca se that Swanepoel’s overbroad
formulation of his initial in quiry permeated everything done
thereafter.
[29] On the day he launched the preparatory investigation,
Swanepoel in terms of s 28(2)(a) 29 designated Ferreira and
other officials on his staff to carry out the inquiry on his behalf.
That designation similarl y mentioned only ‘alleged
irregularities’. It therefore suffered from the same overbreadth.
As a result, Ferreira lacked prope r authority to apply for the
search warrants the next day. It is, again, not necessary to
decide that the warrants themse lves were for this reason alone
invalid, since, as later appears , they suffered from intrinsic
defects of their own.
Second attack: Application for search warrants
148 (C); Hyundai 2001 (1) SA 545 paras 38-39.
29 NPA Act s 28(2)(a): ‘The Investigating Director may, if he or she decides to hold an inquiry,
at any time prior to or during the holding of the inquiry designate any person referred to in
section 7(4) to conduct the inquiry, or any part thereof, on his or her behalf and to report to
him or her.’ Ferreira was a deputy director in terms of s 7(4)(i) and s 15(1)(b).
23
[30] The reason Swanepoel invok ed the preparatory investigation
procedure on the Friday was that he lacked ‘reason to suspect’
a specified offence – the requisite for a plenary investigation.
Yet the next day Ferreira applied for a warrant under s 29. For
this (it was common cause) she had to have reason to suspect
at least an offence capable of constituting a specified offence.
In Hyundai Langa DP said that the proper interpretation of s 29
permits a judicial officer to is sue a search warra nt in respect of
a preparatory investigation –
‘only when he or she is satisfied that there exists a reasonable suspicion
that an offence which might be a specified offence has been committed.
The warrant may only be issued where t he judicial officer has concluded
that there is a reasonable suspici on that such an offence has been
committed, that there are reasonable grounds to believe that objects
connected with an investigation into t hat suspected offence may be found
on the relevant premises and, in the ex ercise of his or her discretion, the
judicial officer considers it appropriate to issue a search warrant.’30
These, he added, ‘are considera ble safeguards protecting the
right to privacy of individuals’.31
30 2001 (1) SA 545 para 52.
31 NPA Act s 29(5) at the time of the events in issue in this appeal, and when Hyundai was
decided, read:
‘A warrant contemplated in subsection (4) may only be issued if it appears to the magistrate,
regional magistrate or judge from information on oath or affirmation stating –
(a) the nature of the inquiry in terms of section 28;
(b) the suspicion which gave rise to the inquiry; and
(c) the need, in regard to the inquiry, for a search and seizure in terms of this section,
that there are reasonable grounds for believing that anything referred to in subsection (1) is
on or in such premises or suspected to be on such premises.’
Act 61 of 2000 amended the letter of this provision to conform with Hyundai:
‘A warrant contemplated in subsection (4) may only be issued if it appears to the magistrate,
regional magistrate or judge from information on oath or affirmation, stating –
(a) the nature of the investigation in terms of section 28;
(b) that there exists a reasonable suspicion that an offence, which might be a
specified offence, has been or is being committed, or that an attempt was or had been made
24
[31] Powell claims that thes e safeguards were violated when
Ferreira applied for, and Van d er Merwe J granted, the first
search warrant. Ferreira largely repeated her assertions before
the Ellisras magistrate, though she fortified them with
information gleaned from the documentation seized in
Johannesburg a fortnigh t earlier. The parties’ arguments
treated the applications for the two warrants, and the questions
they raised before the judicial officers, as for practical purposes
identical, and I shall do the same.
[32] Powell makes two principal complaints. He says that there
was insufficient information of adequate quality before Van der
Merwe J to justify the grant of the warrant. And he contends
that Ferreira failed to disclose ma terial facts in her application.
In my view, neither complaint ca n be upheld. In saying this I
will accept Powell’s contention that Ferreira’s affidavit contains
a number of claims regarding the law and the practice relating
to the appointment of liquidators that are inaccurate; and that
to commit such an offence; and
(c) the need, in regard to the investigation, for a search and seizure in terms of this
section,
that there are reasonable grounds for believing that anything referred to in subsection (1) is
on or in such premises or suspected to be on or in such premises.
25
her assertion that the then head of the Pretor ia Master’s office,
Mr BC Nell, continuously gave preference to Powell was (on
the basis of office data Powell later analysed) unjustified.
[33] Powell’s difficulty in challengi ng Ferreira’s application is that
she based it on two sworn statements. O ne she obtained the
previous evening, after Sw anepoel started t he preparatory
investigation, and after she and Swanepoel were briefed by the
already-appointed departmental investigation team. This was a
deposition by a staff member, Ms Mahole, who became a
Deputy Master in the Pretoria offi ce in 1994. Mahole did not
wish to go on record. But she was willing to go on oath. And
Ferreira derived her assertions a bout Nell’s preference for
Powell from her affidavit, whic h on its face supported those
claims. Mahole said that Powell ‘was repeatedly nominated by
and appointed by Mr Nell, without nominations from creditors’,
and that in instances where Po well was nominated by creditors
whose claims were insufficient in number and value, Nell
‘normally’ gave Powell preference anyway. She also recounted
two incidents which suggested t hat Nell strained to assist
Powell to procure appointments ev en in the face of contrary
decisions by colleagues.
26
[34] It is significant that F erreira considered this affidavit
insufficient on its own to apply for a search warrant. She says
that the situation changed the next day when she obtained a
second affidavit that pointed di rectly to a corrupt association
between Powell and Nell. This was a deposition by one van
Vuuren, from whom in 1995 Po well bought his Ellisras farm.
From van Vuuren’s affidavit Ferreira derived t he assertion that
Powell and Nell together visited van Vuuren’s farm a number of
times during the purchase nego tiations, and that Nell made
statements to van Vuuren signallin g a corrupt relationship with
Powell.
[35] Was this enough for Ferreira to apply for a warrant, and for
Van der Merwe J to grant it? V an der Westhuizen J held that it
was. A reasonable suspici on, he found, was an impression
formed on the basis of divers e factors, including facts and
pieces of information falling short of fact such as allegations
and rumours. ‘It is the total pict ure that is relevant.’ I agree
with this conclusion. At t he stage in question, Ferreira was
not required to have conclusive or even prima facie proof, but a
reasonable suspicion, adequately and objectively established.
27
[36] This Court has endors ed and adopted Lord Devlin’s
formulation of the meaning of ‘suspicion’:32
‘Suspicion in its ordinary meaning is a state of conjecture or surmise
where proof is lacking; ‘I suspect but I cannot prove’. Suspicion arises at
or near the starting point of an investigation of which the obtaining of
prima facie proof is the end.’33
[37] To the passage already adopted I would add the sentence
that immediately follows, since it has a bearing on the present:
‘When such proof has been obt ained, the police case is
complete; it is ready for trial and passes on to its next stage.’34
Ferreira and Swanepoel were not ready to charge Powell or
Nell. Prima facie proof was as yet lacking. Lord Devlin went
on to point out –
‘another distinction between reasonable suspici on and prima facie proof.
Prima facie proof consists of admi ssible evidence. Suspicion can take
into account matters that could not be put in evidence at all. … Suspicion
can take into account also matters which, although admissible, could not
form part of a prima facie case.’35
[38] That applies also here, where Ferreira’s application
unavoidably relied on evidence on oath supplied to her by a
witness who at that stage was not willing to come forward.
32 Duncan v Minister of Law and Order 1986 (2) SA 805 (A) 819I; Minister of Law and Order v
Kader 1991 (1) SA 41 (A) 50H-I; BTR Industries South Africa (Pty) Ltd and others v Metal and
Allied Workers’ Union and another 1992 (3) SA 673 (A) 690G-H.
33 Shabaan Bin Hussien and others v Chong Fook Kam and another [1970] AC 942 (PC)
948B; [1969] 3 All ER 1627 (PC).
34 [1970] AC 942 (PC) 948B-C.
28
What the statute required was that her application should set
out the grounds of her surmis e regarding the allegedly corrupt
relationship between Nell and Powell with sufficient particularity
to show that it was reasonable. In the Hyundai formulation,
she had to ‘place before a judicial officer an adequate and
objective basis to justify’ the issue of the warrant. 36 T h i s
entailed at least that she should show that her surmise was not
fanciful, but grounded in fac t; that it was based on sound
evidence that was available to her; and that other persons in
her position, considering the facts and the available evidence,
would conclude that the s urmise in question was not far-
fetched, misguided, or patently mi staken. To this I would add
that in assessing whether her su spicion was reasonable, she
was required to bear in mind that the provisions she sought to
invoke authorised drastic invasive action.37
[39] In my view these requisite s were satisfied here. The two
affidavits laid an adequate basi s for Ferreira’s averment that
‘the relationship between Nell a nd Powell is suspect and the
35 [1970] AC 942 (PC) 949B-C.
36 2001 (1) SA 545 para 55.
37 Mabona and another v Minister of Law and Order and others 1988 (2) SA 654 (SE) 658F,
per Jones J: ‘It seems to me that in evaluating his information a reasonable man would bear
in mind that the section authorises drastic police action.’
29
suspicion exists that corr uption is being perpetrated’. 38 They
also laid an adequate basis for her submission in her
application that a search and se izure operation at Powell’s and
Nell’s premises was justified.
[40] Powell did not seek to cross-examine Ferreira and I do not
think there is any basis for im pugning her good faith in relying
on Mahole’s and van Vuuren’s assertions when she applied for
the warrant. Nor is there any bas is for saying that she acted
unreasonably in doing so.
[41] Powell complains in additi on (while not refuting what van
Vuuren says) that van Vuuren was a thug associated with the
notorious Vlakplaas facility who perpetrated gross human right
abuses under apartheid and who had a bad relationship with
Powell after the farm sale, and that Ferreira failed to disclose
this and other information, such as the enmity and animosity
within the liquidation business, and the antagonism towards
Powell from major banks.
38 ‘Die verhouding tussen Nell en Powell is verdag en die vermoede bestaan dat korrupsie
gepleeg word.’
30
[42] In invoking a procedure wi thout notice to the party sought to
be subjected to it, Ferreira eng aged the processes of justice in
an inevitably one-sided process . She was consequently under
a duty to be ultra-scrupulous in disclosing any material facts
that might influence the Court in coming to its decision. 39 But
Ferreira says she did not know the details of van Vuuren’s
past, apart from the fact t hat he had been a Vlakplaas
policeman, nor about his enmity with Powell. There is no basis
for disbelieving her. She sa ys that she was not influenced by
media reports alleging a corrupt associat ion between Nell and
Powell. And she says she disregarded anonymous telephone
calls and letters, and did not rely on complaints from Powell’s
competitors in the business or f rom financial institutions that
opposed certain of his appointments.
[43] There is nothing to refute this. Powell’s complaint that
Ferreira failed to disclose an association with the Sunday
journalist responsible for na ming him and Nell as corruptly
linked is devoid of substance. Her application at the outset
mentions information obtained from a journalist and later
names the individual concerned.
39 National Director of Public Prosecutions v Basson 2002 (1) SA 419 (SCA) para 21.
31
[44] In the light of the material available to Ferreira, it seems to
me that Powell’s complaints of improper motive, ulterior
purpose, inadequate evidence and material non-disclosure
cannot be sustained, and that van der Westhuizen J was
correct in deciding this portion of the case.
Third attack: Breadth of search warrants
[45] The search warrants V an der Merwe J signed were breath-
taking in their scope. They authorised the investigating director
or his delegees to examine ‘any object’ and to seize ‘anything’
at Powell’s premises relevant to or that could be relevant to ‘the
preparatory investi gation concerned. 40 No offence is
mentioned. The investigation in question is identified solely by
reference to an annexure to the warrant. That annexure
mentions no offence. It doe s not even refer to ‘alleged
irregularities’. Its recipient is not informed of the nature and
ambit of ‘the preparatory investigation concerned’.
40 ‘… om enige voorwerp … wat betrekking het of betrekking kan hê op die betrokke
voorlopige ondersoek …’
32
[46] What the annexure does is to itemise in eight paragraphs the
documents and objects subject to seizure (I translate):
1. All contracts, transacti ons, agreements, negotiations,
correspondence and/or communicati on engaged in, transacted or
concluded between and/or by and/or on behalf of OC Powell and/or
his spouse and/or a family member of theirs and/or an employee of
OC Powell with BC Nell and/or his spouse and/or a family member of
theirs;
2. All correspondence, notes, receip ts or debit vouchers in connection
with payments and/or benefits and/or rewards received from of made
to, or moneys and/or benefits and/or rewards owed by or owed to OC
Powell and/or BC Nell and/or their spouses and/or a family member
of theirs and/or an em ployee of OM Powell by BC Nell and/or OM
Powell and/or their spouses and/or an employee of OM Powell;
3. All correspondence, notes, c ontracts, agreements and/or other
document or object in regard to t he founding, creati on, registration
and/or members’ interest of legal entities, partnerships and/or trusts
in which BC Nell and/or OM Powell and/or their spouses and/or their
family members and/or an employee of OM Powell has an interest;
4. All correspondence, notes, c ontracts, agreements and/or other
documents or objects in connec tion with the purchase, sale,
possession, use, utilisation, impr ovement and/or income from and/or
interest in any assets in which BC Nell and/or OM Powell and/or their
spouses and/or a family member of theirs and/or an employee of OM
Powell has an interest;
5. All notes, correspondence, agreem ents and/or other documentation
or object with regard to the nomination as liquidator and/or
compensation and/or income of OM Powell and/or his spouse,
including all bank statements, depos it slips, paid cheques, cheque
counterfoils and/or vouchers of transfers from or to bank accounts;
6. All notes, correspondence, agr eements, files and/or other
documentation or object with regar d to the estates of [certain
corporations in liquidation].
7. Any other document and/or object t hat has relevance to or may have
relevance to the investigation of which is sought to be retained for
further investigation or for safekeeping;
8. Any computer, hard- or software and/or com puter printout and/or
sound or video tape and/or recording on which any information
mentioned in paras 1-6 appears or may be applicable to it.’
[47] When Powell was confront ed at his home at 06h00 on the
Sunday morning, the warrants and annexures were read out to
him, and the document initiating the preparatory investigation
33
(para 7 above) was presented to him. The search then
proceeded. The next day Powell’s attorney, who was present
during its major part, wrote ob jecting that the warrants were
void for vagueness and the search unlawful.
[48] The High Court rejected Powell’s complaints. The Court
found that –
‘all in all it appears that [Powell] at least on Sunday 24 October 1999, and
perhaps also at certain stages therea fter, indicated that he was willing to
cooperate with the investi gation and that he has nothi ng to hide. In view
of this background, some of the objections raised and argued during the
application appear to be quite technical.’
The learned judge was not persuaded –
‘that there is any signific ant merit in the contenti on by [Powell] that the
scope of the warrant was overbroad. Within the context of the facts of this
case there could be very little doubt as to what was being investigated
and that there was a reasonable limita tion contained in the annexure to
the warrant. There is no evidence t hat any dissatisfaction was expressed
by [Powell] during the day. Once again it is probably true that it is
unrealistic to expect absolute clarit y and accuracy in documents of this
kind, in view of the very nature and ai m of the process involved. [Powell
was] not prejudiced by the alleged broadness of the warrant.’
[49] With respect to the Judge, I cannot agree with this approach.
The question of consent can be disposed of first. The
Directorate’s deponents stated that Powell agreed to cooperate
with the search. This they sa id in response to complaints in
Powell’s affidavits that the warrants misdescribed his home and
business addresses. None of the deponents suggested that
34
Powell waived any entitlement to object to the validity of the
warrants. Waiver of rights is never lightly inferred. 41 This is
certainly not less true of constitutional rights. 42 There can be
no question that Powell consented to an unlawful search.
[50] Our law has a long history of scrutinising search warrants
with rigour and exactitude – ind eed, with sometimes technical
rigour and exactitude. 43 The common law rights so protected
are now enshrined, subject to r easonable limitation, in s 14 of
the Constitution:
‘Everyone has the right to privacy, which includes the right not to have –
(a) their person or their home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.’
[51] In Hyundai44 Langa DP referred to this as the ‘right to privacy
in the social capacities in which we act’. 45 In Mistry v Interim
41 Laws v Rutherford 1924 AD 261 263 (Innes CJ); Borstlap v Spangenberg 1974 (3) SA 695
(A) 704G (Corbett AJA).
42 Mohamed and another v President of the Republic of South Africa and others (2001) (3)
893 (CC) paras 61-66.
43 De Wet and others v Willers NO and another 1953 (4) SA 124 (T) 127BC, per Ramsbottom
J, Malan and Neser JJ concurring (‘To enter premises, to search those premises, and to
remove goods therefrom is an important invasion of the rights of the individual. The law
empowers police officers to infringe the rights of citizens in that way provided that they have a
legal warrant to do so. They must act within the terms of that warrant. When a dispute arises
as to what power is conferred by the warrant the warrant must be construed with reasonable
strictness, and ordinarily there is no reason why it should be read otherwise than in the terms
in which it is expressed’); followed in Cheadle, Thompson & Haysom and others v Minister of
Law and Order and others 1986 (2) SA 279 (W) 282-283.
44 2001 (1) SA 545 paras 15-20, 28, 55.
45 para 16.
35
Medical and Dental Council of South Africa and others,46 Sachs
J on behalf of the Court explaine d the historical setting of the
current constitutional safeguards:
‘The existence of safeguards to regulat e the way in which State officials
may enter the private domai ns of ordinary citizens is one of the features
that distinguish a constitutional dem ocracy from a polic e State. South
African experience has been notoriously mixed in this regard. On the one
hand there has been an admirable history of strong statutory controls over
the powers of the police to search and seize. On the other, when it came
to racially discriminatory laws and se curity legislation, vast and often
unrestricted discretionary powers were conferred on officials and police.
Generations of systematised and egregious violations of personal privacy
established norms of disrespect for ci tizens that seeped generally into the
public administration and promoted amongst a great many officials habits
and practices inconsistent with the standards of conduct now required by
the Bill of Rights. Sect ion 13 [of the interim Constitution; now s 14 of the
Bill of Rights] accordingly requires us to repudiate past practices that were
repugnant to the new constitutional valu es, while at the same time re-
affirming and building on those that were consistent with these values.’
[52] Ex parte Hull47 appears to be the first reported South African
case in which a search warran t was set aside for vagueness
and overbreadth. Kotze CJ (Jori ssen J concurring) held that
the warrant was ‘too general and too vague’. He said that
under a loose and arbitrary ex ercise of a general power to
issue search warrants ‘no one would be safe’:
‘The secrets of private friendshi p, relationship, trade and politics,
communicated under the seal of pr ivacy and confidence would become
public, and the greatest trouble, unpleasantness and injury caused to
private persons, without furthering the true purposes of Criminal Justice in
the slightest degree. The secrecy and sanctity of private dwellings might
be violated, and one of the first ob jects that men have in view in
associating themselves in political communities throughout the civilised
world would be frustrated, if the priv ate citizen did not feel himself safe
46 1998 (4) SA 1127 (CC) para 25.
47 (1891) 4 SAR 134.
36
against what may be nothing more t han the curious eye of the police
agent, sheltering itself behind the aut hority of a search warrant; except
only where the Law, in order to furt her the interests of justice, and so
protect society, allows and directs, under special circumstances, the issue
of a search warrant.’
He added:
‘Taking into consideration the great danger of misu se in the exercise of
authority under a search wa rrant, it is not to be wondered at that the law
of almost every country prescribe t he limits, in a more or less definite
manner, within which such warrants may be issued.’
[53] This general approach has been maintained and endorsed in
cases too numerous to itemise. In Hertzfelder v Attorney-
General,48 Innes CJ analysed the warra nt and found it ‘most
irregular in form’. It did not specify the crime alleged to have
been committed ‘and is in fact quite unintelligible’. It was held
to be no authority. In Ho Si v Vernon ,49 a Transvaal statute
provided that an ‘Asiatic’ who upon proper demand failed to
produce his certificate of regist ration could be arrested without
a warrant. Innes CJ (Smith J conc urring) held that this did not
authorise the police to enter fo rcibly his home to demand the
production of the ce rtificate. A general search warrant
purporting to authorise a police officer to enter any premises by
day or night and to search for and arrest ‘Asiatics’ illegally in
the Transvaal or wanted on ar rest or not in possession of
48 1907 TS 403.
37
registration certificates was held to be invalid. Innes CJ again
scrutinised the terms of the warrant and found them ‘not
grammatically intelligible’: they purported to entrust the bearer
with a roving commission the attr ibution of validity to which
would be ‘subversive of the most elementary rights of freedom’.
[54] In Pullen NO and others v Waja 50 a warrant authorised the
seizure of ‘certain books and documents and other papers’ the
property of a named individual and a company. Tindall J
emphasised that –
‘the Courts ought to examine the validity of warrants with a jealous regard
for the liberty of the subj ect and his rights to his pr operty and to refuse to
recognise as valid a warrant the terms of which are too general’.51
Unlike de Waal JP, he was not prepared to hold that a warrant
invariably had to mention the all eged offence. It was sufficient
for it either to describe the sp ecific thing or things to be
searched for (his example was ‘a bicycle numbered 17528’), or
– if this was not done – to i dentify them by reference to the
offence. He nevertheless ex pressed himself in favour of
warrants always mentioning the specific offence:
‘It is desirable that the person whose premises are being invaded should
know the reason why; the arguments in favour of the desirability of such a
practice are obvious.’52
49 1909 TS 1074.
50 1929 TPD 838.
51 1929 TPD at 846-847.
38
The warrant in question did not in any way identify the articles
to be seized. The words ‘certain book and documents and
other papers’ were ‘so vague that it is impossible to say what
they include’:
‘It is argued that Waja must hav e understood what books were wanted
and the nature of the off ence in connection with which their seizure was
authorised. But that is by no m eans clear, and even if he had an inkling
on these points, this cannot cure the defect in the warrant itself.’
This rejection of this argument is of particular relevance in the
light of the Judge’s finding that Powell knew what was being
investigated.
[55] Twenty years later Tindall ACJ considered a search warrant
issued as part of what appears to have been a national raid on
‘non-European Trade Unions’ and the Council for non-
European Trade Unions. In Minister of Justice & others v
Desai NO53 the warrant authorised seizure of ‘documents which
may afford evidence as to t he commission of the crime’ of
incitement to strike. But the statute permitted the issue only of
a warrant in respect of ‘docum ents as to which there are
reasonable grounds for believing that they will afford evidence’.
Tindall ACJ held the warrant bad on its face because it gave
52 Page 849.
39
the officer executing it ‘a wider field of choice as to the
documents to be seized’ th an the statute authorised. 54 T h i s
Court overruled a provincial divi sion decision that licensed no
more than ‘a rough paraphrase of the se ction which empowers
the seizure of documents f or the purpose of being used in
evidence’. Tindall ACJ said:
‘But if his instructions contained in the warrant are to seize documents
which may afford evidence, he is thereby directed to allow himself greater
latitude than he would if he had been dire cted to seize documents as to
which there are reasonable grounds fo r believing that they will afford
evidence.’55
[56] In Divisional Commissioner of SA Police, Witwatersrand
Area and others v SA Associ ated Newspapers Ltd and
another,56 when the Rand Daily Ma il newspaper sought to
publish an exposure of prison conditions under apartheid, part
of a warrant authorised se izure of ‘all other documents
including statements of what soever nature concerning reports
in connection with the conditi ons in gaol and experience of
prisoners in gaols throughout th e Republic of South Africa’.
This Court held this portion of the warrant too general: it was
couched in such wide terms as to justify the inf erence that the
53 1948 (3) SA 395 (A).
54 1948 (3) SA 395 (A) 402.
55 1948 (3) SA at 404.
56 1966 (2) SA 503 (A).
40
justice of the peace who had is sued it had not properly applied
his mind to it. Beyers ACJ said:
‘It has long been established that the Courts will refuse to recognise as
valid a warrant the terms of which are too general (see Pullen NO and
others v Waja 1929 TPD 838). The executing officer, when examining the
documents referred to in the warrant must, in deciding whether he will
seize a particular document, use his j udgment as to whether it will afford
evidence as to the commission of the crime being investigated ( Desai’s
case supra at 404). It seems to me that in the present case the warrant
allows him no discretion at all. He is allowed the lati tude of seizing “all”
the documents “concerning reports in connection with conditions in gaols,
etc”.’57
[57] This Court agreed with the statement by the Judge at first
instance that ‘The ambit is so wide that the imagination boggles
at the suggestion that th ere existed reasonable grounds for
believing that each and every do cument in this large category
“would” not “might” afford evidence …’58
[58] In Cine Films (Pty) Ltd and others v Commissioner of Police
and others 1972 (2) SA 254 (A) t he warrant mentioned a
statutory copyright offence. But what followed directed the
seizure not only of specif ied infringing films plus
‘correspondence or circulars refe rring to such films’, but ‘all
stock books, stock sheets, invoices, invoice books,
consignment notes, all corresp ondence, film catalogues’. The
latter formulation was challenged. At first instance it was held
57 1966 (2) SA 503 (A) 512D-E.
41
that the reference to ‘document s’ had to be ‘read to refer to
such as will relate to the susp ected offence’. This Court
disagreed. The warrant had been drawn too widely. The
documents to be seized had to be identified with the statutory
offence in question. The challenged portion was set aside.
[59] These cases establish this:
(a) Because of the great danger of misuse in the exercise
of authority under search w arrants, the courts examine
their validity with a jealou s regard for the liberty of the
subject and his or her rights to privacy and property.
(b) This applies to both the authority under which a warrant
is issued, and the ambit of its terms.
(c) The terms of a search w arrant must be construed with
reasonable strictness. Ordi narily there is no reason
why it should be read otherw ise than in the terms in
which it is expressed.
(d) A warrant must convey intell igibly to both searcher and
searched the ambit of the search it authorises.
58 1966 (2) SA 503 (A) 512G-H.
42
(e) If a warrant is too general, or if its terms go beyond
those the authorising stat ute permits, t he Courts will
refuse to recognise it as valid, and it will be set aside.
(f) It is no cure for an ov er-broad warrant to say that the
subject of the search k new 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.
[60] I set out the authorities in this way because they appear to
have been overlooked when t he warrant was granted, and
because the Judge in rejecting the subsequent challenge did
not refer to any of them, or to the principles they establish.
They necessitate the conclusion , beyond any debate, that the
warrant was riddled with imprecision and vagueness, and that it
had to be set aside on this g round alone. It mentions no
offence. Ferreira’s affidavi t did, but that was not made
available to Powell. Even if in considering the warrant’s legality
we incorporate Swanepoel’s institut ion of the inquiry, as read
out to Powell, it is still ir redeemably broad and vague. The
documents whose seizure is author ised are not tied even to an
43
investigation into ‘alleged irregularities’ at the Pretoria Master’s
office.
[61] A cursory glance at the provisions of the annexure reveals
their startling scope. In what follows no comprehensive
analysis is attempted; I give only illustrative instances.
• The first paragraph authorise s the seizure of literally all
documents passing between Po well, his family and Nell
and Nell’s family. What if, as Powell deposed, he and
Nell have been friends for many years? Christmas and
birthday cards, emails bet ween the families’ children,
notes between their spouses, are included.
• The third paragraph would lic ense the seizure of even
share certificates in publicly listed companies ‘in which
BC Nell and/or OM Powell and/ or their spouses and/or
their family members and/or an employee of OM Powell
has an interest’.
• The seventh (‘any other docu ment and/or object that has
relevance to or may have relevance to the investigation’)
is so unbounded as to resist coherent analysis. Some
application of the phrase ‘the imagination boggles’, which
44
this Court endorsed in the SAP v SAAN 59 case, would
seem appropriate. Together with the rest of the annexure
this paragraph affords neither investigator nor
investigated the slightest gui dance as to what could, and
what could not, lawfully be taken.
[62] Instead, those carrying out the search were given virtually
untrammelled power to carry out what Mr Slomowitz in his
argument justly called ‘a gener al ransacking’ of Powell’s
premises. That has not been the law in this country since at
least 1891, and it is not the law under our Constitution, which
preserved and enhanced what was best in our legal
traditions.
60 The diligent scrutiny of warrants for search and
seizure survives as part of the best of that legacy,
constitutionally entrenched in our new democracy. 61 T h e
warrants must be set aside as unlawful.
Interdict
59 1966 (2) SA 503 (A) 512H.
60 Compare the comments of Chaskalson P in the Pharmaceutical Manufacturers case 2000
(2) SA 674 (CC) paras 40, 45 and 49.
61 See Mistry v Interim Medical and Dental Council of South Africa and others 1998 (4) SA
1127 (CC) para 25, quoted in para 51 above.
45
[63] Mr Slomowitz at the out set of his argument adhered to
Powell’s application for an interdict prohibiting the Director and
his staff from disclosing inform ation ‘which came to their
knowledge in the performance of their functions under the NPA
Act and relating to the busines s affairs [of Powell]’, but I
understood him to appreciate the su bstantial difficulties that lie
in his path. Swanepoel is allege d to have disclosed only the
contents of van Vuuren’s affidavit, and since he did not obtain
that through the impugned search Powell is not entitled to an
interdict in respect of it. In regard to the rest of the
documentation seized there is, as Mr Maleka pointed out, no
apprehension that the investigating direc torate will make any
unlawful disclosure. The application must therefore be refused.
Conditional counter-application
[64] In the Court below the respondents gave notice of a
conditional counter-applicat ion for a new warrant and
consequent powers of seizure in the event that Powell’s
application for return of the documentation should succeed. In
his written argument on appeal Powell tendered that the
documents in issue should rem ain preserved for ten days to
allow the directorate a nd the investigating di rector to initiate a
46
course of action in furtherance of the counter-application. Mr
Maleka very candidly concede d that he could not give an
assurance that the counter-appl ication as it currently stands
would be free of information ob tained from the documents
seized. He therefore accepted, in my view properly, the offer in
Powell’s written argument. In terms of the agreement the
Directorate has ten days within which to launch an application
for a warrant if so advised, and in that ev ent, as offered by
Powell, to allow the objects and documents seized to remain so
preserved pending the determination of the counter-application.
This agreement is noted.
[65] In the result –
1. The appeal succeeds with costs, including the costs of two
counsel.
2. The order of the Court below is set aside.
3. In its place there is substituted:
(a) The application succeeds with costs, including the
costs of two counsel, to be paid by the third, fourth
and fifth respondents jointly and severally.
(b) The decision of the fourth respondent to hold a
preparatory investigation in terms of s 28(13) of the
National Prosecuting Authority Act 23 of 1998 is set
aside.
(c) It is declared that the s earch warrants issued by the
first and second respondent s are null and void and
are set aside.
(d) All documents, records, data and other property of the
applicants seized by the fo urth and fifth respondents
under the warrants, as well as photographic or
47
electronic copies of them , must be returned to the
applicants.
E CAMERON
JUDGE OF APPEAL
HARMS JA )
BRAND JA ) CONCUR
CONRADIE JA )
48
SOUTHWOOD AJA
[66] I have had the privilege of reading the judgment of my
colleague Cameron JA, and save for one respect, I respectfully
agree with his reasons, the conclu sion which he reaches and the
order which he makes. In my view the applications for the search
warrants (paras 30-44 of Cameron JA’s judgment) were fatally
flawed by the misstatement of the ma terial facts and this, in itself,
justified the setting aside of the warrants and the return of the
documents and other things seized.
[67] A search and seizure warrant obtained ex parte places a
formidable weapon in the hands of the Director of IDSEO. It
authorises the Director and his staff to enter and search the
premises of the person involved wi thout prior notice and to seize
and retain documents and other thin gs relevant to the suspected
offence. Such an operation is a profound violation of the right of
privacy.
[68] In Investigating Directorate: Serious Economic Offences and
others v Hyundai Motor Distri butors (Pty) Ltd and others : in re
49
Hyundai Motor Distributors (Pty) Ltd and others v Smit NO and
others 2001 (1) SA 545 (CC) the Cons titutional Court considered
how the right to privacy is prot ected by the provisions of the
National Prosecuting Authority Act, 32 of 1998 (‘the NPA Act’)
where the director seeks a sear ch and seizure warrant for the
purpose of a preparator y investigation. The court identified a
number of essential safeguards.
[69] First, a search warrant is to be granted for purposes of a
preparatory investigation only if there is a reasonable suspicion
that an offence, which might be a specified offence, has been or is
being committed, or that an at tempt was or had been made to
commit such an offence (para 56).
[70] Second, the investigating di rectorate is required to place
before a judicial officer an adequat e and objective basis to justify
the infringement of the right to privacy. The legislation sets up an
objective standard that must be me t prior to the violation of the
right, thus ensuring that searc h and seizure powers will only be
exercised where there are sufficient reasons for doing so (para
55).
[71] Third, there must be authorisa tion by a judicial officer before
a search and seizure of property takes place: an investigating
50
director may not search and seiz e property, in the context of a
preparatory investigation, without prior judicial authorisation (para
35). It must appear to the judicial officer, from information on oath
or affirmation, that there are re asonable grounds for believing that
anything connected with the prepara tory investigation is, or is
suspected to be, on such premises . The judicial officer is required ,
among other things, to be satisfi ed that there are grounds for a
preparatory investigation and in order to be satisfied the judicial
officer must evaluate the susp icion that gave rise to the
preparatory investigation as well as the need for a search for
purposes of a preparatory investigation (para 36). It is implicit in s
29(5) that the judicial officer w ill apply his or her mind to the
question whether the suspicion which led to the preparatory
investigation, and the need for the search and seizure to be
sanctioned, are sufficient to justify the invasion of privacy that is to
take place. On the basis of the information, the judicial officer
makes an independent evaluation and determines whether or not
there are reasonable ground s to suspect that an object that might
have a bearing on a preparatory invest igation is on the targeted
premises (para 37). It is also imp licit in the legislation that the
judicial officer should have regard to the provisions of the
Constitution in making the decision (para 38).
51
[72] Despite these safeguards the application for the warrant can
be made ex parte on the strength of what the investigating director
chooses to place before the judicial officer. In such a case, before
the warrant is executed, the person who is targeted by the warrant
does not have an opportunity to contest the facts relied upon by
the investigating director or to place his or her version before the
court. By then, the sentiment al damage and damage to his or her
good name and reputation and probably professional and business
interests will have occurred. These factors emphasise the
necessity for a proper ‘adequate and objective basis’ to be placed
before the judicial officer who is requested to authorise the
warrant. All the safeguards referred to in Hyundai will be negated if
the material facts are misstated to the judicial officer or material
facts are withheld. If this occurs the judicial officer cannot properly
consider whether the warrant shou ld be authorised or not. These
factors also illustrate the necessi ty for the rules relating to proper
disclosure of material facts in ex parte applications to be strictly
and rigorously applied.
[73] In National Director of Public Prosecutions v Basson 2002
(1) SA 419 (SCA) [21] this court ex pressly approved of these rules
as they are set out in Schlesinger v Schlesinger 1979 (4) SA 342
52
(W) at 348E-349B, concluding with the following three
propositions:
‘(1) in ex parte applications all material facts must be disclosed which might
influence a court in coming to a decision;
(2) the non-disclosure or suppression of facts need not be wilful or mala
fide to incur the penalty of rescission;
(3) the Court, apprised of t he true facts, has a discr etion to set aside the
former order or to preserve it.’
[74] In Schlesinger Le Roux J also consi dered when a court will
exercise its discretion in favour of a party who has been remiss in
its duty to disclose rather than to set aside the order obtained by it
on incomplete facts. He concluded (at 350B-C) –
‘It appears to me that unless there are very cogent practical reasons why an
order should not be rescinded, the C ourt will always frown on an order
obtained ex parte on incomplete information and will set it aside even if relief
could be obtained in a subsequent application by the same applicant.’
[75] In my view, this approach should apply equally to relief
obtained on facts which are in correct because they have been
misstated or inaccurately set out in the application for the order
(compare, Hall and another v Heyns and others 1991 (1) SA 381
(C) at 397B-C) or, as in this case because they have not been
sufficiently investigated. And it should be rigorously applied where
53
a right in the Bill of Rights has been violated. That is the only way
that the courts can ensure that the right to privacy is vindicated
after the event.
[76] The purpose of rigorously appl ying the rule and setting aside
the decision to authori se the warrant is not to punish the director
as was stated by the court below. It is to maintain the legality of the
process. Infringement of the ri ght to privacy by a search and
seizure warrant is justifiable onl y if the correct facts have been
placed before the judicial officer in an objective manner so that he
can properly apply his mind. The p rocess will be fatally flawed if
incorrect facts are placed before him.
[77] In the present case the di rector’s representative, Adv
Ferreira, purported to have personal knowledge of the facts. The
case which she sought to make out in her affidavits was that
Powell and the Master of the S upreme Court, Pretoria, Mr Ben
Nell, had a corrupt relationship. A ccording to Ferreira this was
demonstrated by the way that Nell regularly (‘gereeld’) and
continually (‘voortdurend’) deviate d from the (by implication
invariable) practice which existed in the Master’s office of always
appointing liquidators and trustees nominated by creditors, by
appointing such liquidators and trustees who had not been
54
nominated; that Nell on many occasions nominated and appointed
Powell in liquidations where Po well was not nominated by the
creditors and that Nell had done so in a number of large estates
such as O’Hagans Special Event s (Pty) Ltd; O’Hagans Franchise
Marketing (Pty) Ltd; O’Hagans Investment Holdings Ltd; New Age
Beverages (Pty) Ltd; Kelvinator A ppliances South Africa (Pty) Ltd;
Kniehalter Boerdery (Edms) Bpk and MacMed Healthcare Ltd.
Ferreira’s conclusion was twofold (I translate):
‘It is clear that Nell abuses his position and discretion in larger estates in order
to appoint liquidators/trust ees of his choice as co-liquidators/trustees without
the people concerned enjoyi ng the support of the creditors. Powell has been
benefited regularly in this way.
The relationship between Nell and Powell is suspect and there is a suspicion
of corruption.”
[78] Ferreira justified the urgency of the application by referring to
the interdict which Powell had obtained against the Sunday Times
newspaper that afternoon (23 Octo ber 1999) to stop publication of
similar allegations by the newspaper, Powe ll’s obvious knowledge
of the allegations against him and Nell and acco rdingly the danger
which existed that Powell would at tempt to destroy incriminating
documents and things. According to Ferreira it was essential to get
control of these documents and things to prove the alleged crimes.
55
[79] It is striking that Ferreira did not attach to her affidavit one
document to show that Powell had been wrongly appointed by Nell
in one large liquidation or seque stration (let alone a series of
them). There was also no a ttempt, other than t he vague and bald
statements in the affidavit which really amount to conclusions to
demonstrate a pattern of appointm ents of Powell by Nell which
would justify an influence that an improper and corrupt relationship
existed between them.
[80] In his affidavits Powell dealt comprehensively with the facts
alleged by Ferreira. He showed that she did not have personal
knowledge of the facts. He s howed that in the appointment of
liquidators and trustees a dist inction must be drawn between a
provisional liquidator and a provisi onal trustee, who is appointed
by the Master, and the liquidator and trustee who is appointed by
the creditors at their first meet ing after they have proved their
claims. He showed that far f rom there being a practice of
appointing as provisional liqui dators and trustees persons
nominated by creditor s, the appointment of provisional liquidators
and trustees is a matter for the discretion of the Master and that in
exercising this discretion a nomin ation by a potential creditor is
merely one of the factors to be taken into account by the Master. In
56
this regard Powell referred to a si x page circular issued in March
1997 by Nell in his capacity as Ma ster of the High Court, Pretoria.
In this circular Nell states clearly and unambiguously, with
reference to the releva nt statutory provisions and case law, that
there is no practice whereby th e Master appoints as provisional
liquidator or trustee the person nominated by the creditors and that
such appointments are made in the discretion of the Master.
Powell showed further that Ne ll had not appointed him as a
liquidator in the seven big liquida tions referred to by Ferreira. He
had not been appointed in the liqui dations of O’Hagans Special
Events (Pty) Ltd; O’Hagans Invest ments Holdings Ltd; New Age
Beverages (Pty) Ltd or Kniehalter Boerdery (Edms) Bpk. He was
appointed as one of the provisio nal liquidators of O’Hagans
Franchise Marketing (Pty) Ltd bu t he enjoyed the support of some
of its trade creditors. He was al so appointed in the liquidation of
Kelvinator Appliances South Af rica (Pty) Ltd. However his
appointment was by a Deputy Ma ster and not by Nell and some of
the trade creditors of Kelvinator A ppliances South Africa (Pty) Ltd
had supported his appointment. He showed finally that he was
appointed as one of six provisional liquidators in the liquidation of
MacMed Healthcare Ltd, that t he appointment was made by a
committee of three Deputy Masters chaired by Mr Jan Jordaan and
57
that Nell was not involved in any way in those appointments. This
is confirmed by Nell who states that he had been on leave when
these appointments were made.
[81] Apart from this evidence Powell showed that Nell appointed
provisional liquidators and trustees only in exceptional cases and
that in the majority of cases th e Deputy Masters, either alone, or in
committees, appoint provisional liquidators and trustees. Neither
the director nor Ferre ira made any attemp t to refute Powell’s
evidence about the practice in the Master’s office, Pretoria, relating
to the appointment of provisi onal liquidators and trustees or
Powell’s appointment or non-appoi ntment in the seven big
liquidations referred to in Ferreira’s affidavit. It is clear from their
answering affidavits, as it is clear from the warrants which were
authorised, that they had no specific knowledge about any of these
appointments or any other appointm ents which would show that
Nell wrongly preferred Powell when making appointments and that
he did this regularly or as a matter of course.
[82] Regarding the necessity for seeking a warrant urgently on a
Saturday evening Powell points out that he had been aware of the
allegations against him since the beginning of September 1999;
that he had consistently deni ed these allegatio ns and challenged
58
those who made the allegations to produce proof of the irregular or
corrupt practice alleged and that this was not disclosed to the
court. None of this evidence is denied by Ferreira and it shows
clearly that no grounds for urgenc y existed. If Powell had wanted
to destroy the documents he ha d already had almost two months
in which to do so.
[83] The manner in which Ferreira couched her affidavits was
clearly misleading. She misstate d the facts and the law regarding
the practice in the Master’s of fice. She misstated the facts about
Nell abusing his position by appointing Powell contrary to that
practice. She misstated the fact s about Powell being the regular
beneficiary of such misconduct by Nell and she misstated the facts
about the appointment of liquidators in the seven big liquidations.
Although she did not pertinently allege that Nell had appointed
Powell in these liquidations the reference to specific liquidations
was clearly to create the impres sion that he had. Ferreira claims
that she did not have all this information when she made the
affidavit. If she did not then s he should not have couched the
affidavit in the manner in which sh e did. It is no answer that the
investigating directorate had not yet checked the facts relating to
Powell’s appointments. The correct facts could easily have been
ascertained simply by referring to the files at the Master’s office.
59
These facts would have destroy ed Ferreira’s thesis. By not
investigating the investigating di rectorate did not discover the true
facts and accordingly t he correct facts were not placed before the
two judicial officers. I have no doub t that the way in which these
bald allegations were made in t he affidavit influenced the two
judicial officers in authorising the warrants.
[84] In his judgment, Cameron JA accepts Powell’s contention
that Ferreira’s affidavit contains a number of claims regarding the
law and practice relating to the appo intment of liquidators that are
inaccurate and that her assertion that the then head of the Pretoria
Masters Office, Mr B C Nell, continuously gave preference to
Powell was (on the basis of Powell’s analysis of the office data)
unjustified (para 32) and he acc epts that Ferreira satisfied the
requisites of (a) placing before a judicial officer ‘an adequate and
objective basis’ to justify the issue of the warrant and (b) showing
that her surmise was not fanciful but grounded in fac t; that it was
based on sound evidence t hat was available to her; and that other
persons in her position, consid ering the facts and available
evidence, would conclude that the surmise in question was not far-
fetched, misguided or patently mi staken (paras 38 and 39). In my
view the first finding is destruc tive of the second. This becomes
60
clear on a close reading and compar ison of Mahole’s affidavit with
that of Ferreira. Mahole does not allege that there was an
(invariable) practice as alleged by Ferreira or that only one person,
the Master, appointed liquidators an d trustees. In fact it is clear
from her affidavit that the Ma ster exercised a discretion when
appointing liquidators and trustees; that the Master, his deputies
and assistants made such appointments and that in ‘big matters’ a
panel would make the appointments. When it comes to Powell,
Mahole’s evidence contains no detail whatsoever about the
alleged irregular appointments. Th is lack of particularity should
have been a clear indication to Ferreira that the statement was
unreliable and should have been c hecked against the objective
facts contained in the files. It wa s clearly crucial to the director’s
case that a pattern of irregular appointments be established.
[85] I must emphasise that in considering the contents of
Ferreira’s affidavits I have confined myself to her central thesis
(the frequent irregular appointments of Powell by Nell contrary to
the prevailing practice). In my vi ew some of the other statements
made by Ferreira are also mi sleading and were clearly made in
support of the central thesis. In view of my conclusion it is not
necessary to consider these ot her statements. I have also not
61
dealt in detail with the manner in which Ferreira sought to lay a
factual basis for the re asonable suspicion. In my view it is not
sufficient for her to simply pl ace her interpretation of the
information available before the judi cial officer. In this regard the
comments of Nugent AJA in National Director of Public
Prosecutions v Basson supra at para [19] are apposite:
‘The section requires that it should appear to the court itself, not merely to the
appellant or his staff, that there are “reasonable grounds” for such a belief,
which requires at least that the nature and tenor of the available evidence
needs to be disclosed.’
Leaving aside the question of w hether the unsupported affidavit of
the Director is sufficient, in my view, the nature and tenor of the
evidence available to Ferreira we re not sufficiently disclosed to
satisfy the court that there were reasonable grounds for the
necessary suspicion.
[86] The issue raised before th e court below was not simply
whether there was sufficient informat ion, other than that attacked
by Powell, to justify the grant of the warrants but whether there
was a proper disclosure of the material facts in the affidavits.
These are discrete issues. If Van der Merwe J and the second
respondent were misled into grant ing the warrants that should
have resulted in the warrants bei ng set aside and the granting of
62
an order that all docum ents seized pursuant to the warrants be
returned to Powell. That should hav e been decided first as it was
fundamental to the question of w hether Powell’s right to privacy
had been infringed without justific ation. The same considerations
apply to both warrants.
[87] In my view the approach of th e court below to this issue was
wrong both on the law and the facts. The failure to disclose the
material facts properly was an ad ditional ground upon which the
court below should have granted relief.
_________________
B R SOUTHWOOD
ACTING JUDGE OF APPEAL