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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG

CASE NO: 039454-2023

(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
24 JULY 2025

In the matter between:

W[…], J[…] Applicant

And

D[…], M F irst Respondent

BALOYI, TERRY Second Respondent

THE STATION COMMANDER OF THE PRETORIA- Third Respondent
MOOT SOUTH AFRICAN POLICE SERVICES STATION

THE MINISTER OF POLICE Fourth Respondent

THE MINISTER OF JUSTICE AND CORRECTIONAL Fifth Respondent
SERVICES

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JUDGMENT


THOBANE AJ,

Introduction

[1] The applicant brought an application on an urgent basis seeking the following
summarised relief;
1.1. the setting aside of a search and seizure warrant;
1.2. the return of seized electronic gadgets, equipment and/or items;
1.3. the destruction, by the respondents, of copies or duplicates, in whatever
format, of the seized items;
1.4. interdicting and restraining the utilisation of any copied, reproduced or
saved copies or data, in whatever form.

[2] In the alternative, the applicant sought the same relief by way of a rule nisi
calling on the respondents to show cause why the orders sought, which are
mentioned above, should not be made final. Further alternative relief was sought,
and it makes provision for the duplication, reproduction, copying and preservation of
what was seized, while maintaining the integrity of the chain of custody. Further, that
after the process of copying or duplication, which was proposed to take place within
seven days of the order, the items be returned to the applicant.

[3] The application is directed at the following parties;
3.1. the magistrate who authorised the issuance of a search and seizure
warrant against the applicant, first respondent;
3.2. the investigating officer in the employ of the South African Police Services
who is attached to the Family, Child & Sexual Offences Unit at Pretoria Moot
and who applied for the issuance of such a search warrant, second respondent;
3.3. the Station Commander of Pretoria Moot Police Station, third respondent;
3.4. the Minister of Police, fourth respondent and;
3.5. the Minister of Justice and Correctional Services, fifth respondent.

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[4] The third to fifth respondent, to the extent that the relief sought may impact the
offices they respectively occupy, were cited in their official capacities. No direct relief
is sought against them, it is pleaded. In turn they have all chosen to abide by the
decision of this court.

[5] As part of the introduction it suffices to say at this stage that the urgent
application came before the urgent court on 09 May 2023 where the following order
was granted by agreement between the parties;
“1. A rule nisi be and hereby is issued calling upon the Second, Third and
Fourth Respondents to show cause on 15 June 2023 why an order in the
following terms should not be made final:
1.1 That the search and seizure warrants, pertaining to Applicant, issued by the
First Respondent on 29 March 2023 under Brooklyn CAS 12/03/20223 in terms
of Section 29 read with Sections 25 and 33 of the Cyber Crimes Act 19 of 2020
("the Act") on application and request of the Second Respondent be and
hereby is set aside;
1.2 That the Third Respondent be and hereby is ordered and directed to ensure
the return of the items seized, as more fully set out in Annexure "A" hereto, on
3 April 2023 from the premises of the Applicant at 28 The H[…], […] A[…]
Road, S[…], Germiston, Gauteng, are returned to his possession forthwith;
1.3 That, in so far as copies of any of the items seized have been made,
whether in printed form or by electronic means, including but not limited to
downloading and mirror-imaging, such copies are to be destroyed forthwith and
the Second Respondent is to confirm, on oath within 3 (THREE) days hereof,
that either no such copies exist or, in so far it did exist have been destroyed.

2. That, pending the return day and the finalisation of the matter, the Second to
Fourth Respondents, and/or any entity and/or unit and/or persons under such
respondent's control or in the employment of such respondent, be and hereby

respondent's control or in the employment of such respondent, be and hereby
are forthwith and with immediate effect interdicted and restrained from making
any copies, whether printed or electronic copies of any item seized or the
information and or data contained on any such item seized, subject to
paragraph 3 hereof.

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3. The items mentioned in Annexure “B” hereto shall be returned to the
Applicant within 15 (FIFTEEN) days of the granting of this order, provided that:
3.1. The chain of custody of the seized items during the making of copies as
contemplated in paragraph 3.2 is preserved.
3.2. Copies of the electronic information and/or data stored on the items
mentioned in Annexure “B” hereto shall be made in a manner that preserves
the chain of custody and integrity of the items seized and any copies made,
which copies shall be retained in sealed evidence bags and which shall be
subject, mutatis mutandis, to paragraphs 1.1. and 1.3 hereof.

4. The costs of 9 May 2023 are reserved.”

[6] On the return day, being 15 June 2023 and before Franck AJ, the rule nisi was
extended to 31 July 2023. It then served before Vally J who in turn extended the rule
nisi to 19 September 2023. When the matter served on 19 September 2023, Francis
J extended the rule nisi once again by agreement between the parties, to 05
February 2024. Costs were reserved on all the previous days on which the rule nisi
was extended.

[7] On 05 February 2024 in the opposed motion court, the matter served before
Glaeser AJ, who after hearing the matter, reserved judgment. Due to ill health,
Glaeser AJ has not been able for a considerable period of time, to deliver a
judgment. The parties patiently waited for judgment to be delivered and eventually
approached the office of the Judge President for his intervention. Having
communicated with the Judge President, the parties agreed that they have no
objection in the matter being placed before and be considered by another Judge,
who would have regard to the papers that have been exchanged and are on
CaseLines, as well as the heads of argument that had already been filed by the
parties. The Judge President designated me, in light of the parties’ posture and
agreement, to adjudicate this matter. Hence my involvement. This judgment

agreement, to adjudicate this matter. Hence my involvement. This judgment
therefore is a product of such historical exposition. It was prepared after having
considered the papers as well as the parties’ submissions as set out in their

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respective heads of argument, as per the parties’ wishes communicated to the office
of the Judge President.

Applicant’s case

[8] The applicant’s case is that he was in a love relationship with a woman,
hereinafter referred to as “the complainant”, whose identity is irrelevant for purposes
of this application. The complainant, so the applicant alleges in the founding affidavit,
caused a search and seizure warrant to be issued against him by stating vague
falsehoods of a sexual nature involving the complainant’s daughter, in an affidavit
that she deposed to at Brooklyn Police Station. It must be mentioned that the
complainant is not a party to these proceedings. The affidavit of the complainant
which contains those allegations of sexual assault of the complainant’s daughter at
the hands of the applicant, was utilized by the investigating officer in preparing his
own affidavit when applying for the issuance of a search and seizure warrant.

[9] He goes further to say, prior to the complainant laying charges, he had a good
relationship with the complainant’s daughter to the extent that she regarded him as
her father, so the applicant pleads. It is the version of the applicant that the
relationship became strained between him and the complainant to the extent that the
applicant decided to terminate it. It was after the termination of the relationship,
according to the applicant, that the complainant, viewing the termination as an attack
or assault on her stature and professional status, made up spurious allegations so as
to get back at him. The allegations of sexual assault are therefore, the applicant
contends, a strategy to get back at him.

[10] In the introduction to the founding affidavit, the applicant states that where he
makes legal submissions, it is on the advice of his legal representative, which advice
he accepts as correct. He refers to various sections of the Cybercrimes Act
1 ,

1 Cybercrimes Act, 19 of 2020 heads as follows;

1 ,

1 Cybercrimes Act, 19 of 2020 heads as follows;
Article to be searched for, accessed or seized under search warrant
29. (1) Subject to the provisions of sections 31, 32, 33 and 40(1) and (2) of this Act, section 4(3) of the
Customs and Excise Act, 1964, sections 69(2)(b) and 71 of the Tax Administration Act, 2011, and

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including section 29 which partly reads as stated below, as well as case law. The
section is contrasted with section 21(1) of the Criminal Procedure act, 51 of 1977.
The nub of the submission is that before a warrant is issued, there ought to be
information for one to believe, on reasonable grounds, and that such information
should be set out in an affidavit that; a specific crime was committed, that objects or
items connected with the commission of that crime are at premises intended to be
searched.

[11] The applicant further seriously takes issue with the facts that are relied on by
the complainant and in turn by the second respondent, in formulating a view that a
crime was committed and that certain devices were involved. He also takes issue
with and questions the laws that are relied upon. He goes into detail about the
definition a “sexual act”, as described in legislation. The first respondent, he argues,
should have independently made a determination before arriving at a finding that a
“sexual act” was performed. I pause to mention that there is no obligation placed on
the person before whom a warrant is sought to be granted, to independently “make a
determination”.

[12] The applicant is scathing in his criticism of what is contained in the affidavits of
both the complainant and the second respondent. There is, in his view, terse
information as well as lack of detail. He poses a few questions in the affidavit, such

section 21(e) and (f) of the Customs Control Act, 2014, an article can only be searched for, accessed
or seized by virtue of a search warrant issued—
1. (a) by a magistrate or judge of the High Court, on written application by a police official, if it
appears to the magistrate or judge, from information on oath or by way of affirmation, as set out in the
application, that there are reasonable grounds for believing that an article—
(i) is within their area of jurisdiction; or

(i) is within their area of jurisdiction; or
(ii) is being used or is involved or has been used or was involved in the commission of an offence—
(aa) within their area of jurisdiction; or
(bb) within the Republic, if it is unsure within which area of jurisdiction the article is being used or is
involved or has been used or was involved in the commission of an offence; or
(b) by a magistrate or judge of the High Court presiding at criminal proceedings, if it appears to such
magistrate or judge that an article is required in evidence at such proceedings.

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as when it is alleged that photos were taken of the minor child with her legs open,
was she clothed or naked? Were the photos not taken to show that at times the child
seats in an uncouth position? There is no information about the exact type of device
that was used in taking the photos; no allegation is made about uploading, sharing or
distribution.

[13] He picks apart the affidavits, questions what is stated therein about CCTV and
hard drives; argues that reference is made to the “dark web” with no evidence
supplied or contextualization. In addition, it is argued that he is of the view that the
first respondent did not satisfy herself that the information tendered to her was
credible and that it came from a reliable source. The affidavits are said to be
speculative, demonstrate no connection between the warrant and the Cybercrimes
Act. They were therefore irregularly issued, so it is argued.

[14] On the other hand the applicant, importantly states in his founding affidavit; “I
interpose to point out that the procedural steps taken to obtain the warrant is not
under scrutiny in this matter and I accept that, procedurally the warrant was sought
and obtained as required by the Act as well as the process and procedures of the
relevant Court.”. He then states that what he takes issue with, was the question
whether the first respondent, the magistrate, has substantively made out a case for
the relief sought. This is with reference to information that was placed before the
magistrate when an application for issuance of a search and seizure warrant was
made. The applicant denies that there was substantively enough information at the
disposal of the first respondent.

[15] The allegations that were made against the applicant, which allegations are
contained in the complainant’s affidavit that was utilized to obtain the warrant, are
criticized by the applicant. The applicant is of the view that when the warrant was

criticized by the applicant. The applicant is of the view that when the warrant was
sought, no credible information was placed before the magistrate and further that the
magistrate failed to meaningfully deal with the information placed before her.

Respondents’ case

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[16] The respondents’ case is that allegations of rape and sexual assault were
made under oath by the complainant who alleged that two of her children had been
sexually assaulted by the applicant and that there had been a contravention of
section 19A (1) of the Sexual Offences Act2. Since certain electronic equipment is
alleged to have been used in the commission of the sexual assault, such equipment
ought to be seized in accordance with section 29 of the Cybercrimes Act, 19 of 2020,
they argue.

[17] The allegations of sexual assault were, as mentioned above, set out in the
affidavit of the complainant which she deposed to at Brooklyn Police Station in
Pretoria. In that affidavit she details behavioral changes that she observed in her
daughter; the change in sexual behavior; the change in the minor child’s sleeping
patterns as well as other physical signs and symptoms.

[18] In addition to the above, the complainant placed it on affidavit that her daughter
complained of a painful and itchy vagina; constipation and burning urine. Further
additionally, the nanny of the minor child alerted the complainant to a vaginal
discharge.

[19] During the time of what the complainant explains was unfolding, which is set
out in detail in her affidavit to the police, the complainant referred her daughter to a
Pediatric Psychiatrist, a Forensic Psychologist, a Gynecologist as well as a Trauma
Counselor.

[20] Worse allegations were laid bare in the affidavit. It was alleged that the
applicant inserted his tongue in the mouth of the minor child; licked the vagina of the

2 Criminal Law (Sexual Offences and Related Matters) Amendment Act, 32 of 2007;
19A Offences relating to child pornography
(1) Any person who unlawfully and intentionally creates, makes or produces child pornography in any
manner, other than by using a child for child pornography as contemplated in section 20 (1), is guilty
of an offence.
.

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minor child; inserted his fingers in her vagina; asked the minor to stimulate him and
lastly that the applicant penetrated the minor child with his penis.

[21] Armed with all the information mentioned above, the complainant turned to the
SAPS to open a criminal case against the applicant. The information that was
contained in the complainant’s affidavit was utilized by the second respondent to
prepare his own affidavit for purposes of approaching the first respondent for a
warrant to search the premises of the applicant and seize items.

[22] Section 20 of the Criminal Procedure Act provides that;
“20 State may seize certain articles
The State may, in accordance with the provisions of this Chapter, seize
anything (in this Chapter referred to as an article)-
(a) which is concerned in or is on reasonable grounds believed to be
concerned in the commission or suspected commission of an offence, whether
within the Republic or elsewhere; 

(b) which may afford evidence of the commission or suspected commission of
an offence, whether within the Republic or elsewhere; or 

(c) which is intended to be used or is on reasonable grounds believed to be
intended to be used in the commission of an offence.”

[23] The respondents are of the view that when one reads the above section as well
as the provisions of section 19A of the Cybercrimes Act, it is clear that they were
entitled to search the premises or properties of the applicant and seize specified
items which they believed on reasonable grounds, were connected to commission of
an offence because it had been alleged under oath among others that;
23.1. a sexual offence was committed within the area of jurisdiction of this
court;
23.2. within the republic;
23.3. photos were taken by use of a device;
23.4. and lastly that in the affidavit of Captain Naicker, who was responsible for
downloading material from the applicant’s seized devices or gadgets, he

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confirmed that offensive material was found in one or more of the applicant’s
devices.

[24] Counsel further submitted, in the heads that the applicant deftly avoids, in his
affidavit, to deal with the question whether or not he in fact took pictures, and
opportunistically adds that his primary focus is context. The respondents are of the
view that they have dealt with the following which in their view accords with case law;
24.1. the statutory provision for the issuance was mentioned;
24.2. the searcher was identified;
24.3. mention was made of the authority that was conferred on the searcher;
24.4. the premises or person to be searched were identified;
24.5. the property and the article sought to be seized was identified with clear
particularity;
24.6. the crime that triggered the investigation as well as the name of the
suspect was specified. As a result, little more need be done as the main
protagonist had been brought to the fore.

[25] In supplemented papers the respondents indicated that the applicant was
approached to provide passwords and in some instances patterns to unlock the
devices so that they could gain access thereto for purposes of downloading. Some of
the passwords provided were wrong and in some instances were not provided. In the
devices which the respondents had access to, data or information obtained seemed
to indicate that in some of them, in particular an SD card, they found evidence of
child pornography. They also tendered the return of the gadgets that they were able
to access and download.

The rule nisi

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[26] The law on rule nisi has long become crystalised. In Member of the Executive
Council for the Department of Health, Eastern Cape v BM3, the Supreme Court of
Appeal had occasion to say the following about the rule nisi;
“[12] A rule nisi is an order issued by a court, at the instance of a party,
calling upon another party or parties to show cause on a stipulated date before
that court why relief, as claimed, should not be granted. The procedure, which
derives from English law, has been employed by our courts for well over a
century. Its use and development is underpinned by the principle that a court
will not grant relief which impacts or constrains the rights and interests of a
party without affording that party an opportunity to be heard (audi alteram
partem). It is also premised on the acceptance that the interests of justice
require the balancing of rights and interests to ensure that what is worthy of
immediate protection is not prejudiced by the time it takes to hear all interested
parties.

[13] The rule nisi is generally used in ex parte applications. Van Zyl explains
that,
‘This rule, or order, for after all it is really an order, is granted only on an ex
parte application. This application should be by petition setting forth fully all of
the circumstances of the applicant’s cause of complaint, so as to induce the
Court to grant his prayer. He must [show] a good prima facie cause to entitle
him to this rule, and a good reason must be assigned, or [shown] for the
urgency of the application, and why it should be ex parte instead of serving the
respondent with the notice of motion.’

[14] Since those observations were made, the practice relating to rules nisi
has been used in various contexts. The essential character and purpose of the
procedure, however, remains to ensure that (a) notice is given to an affected
party; (b) a prima facie case is made out for the relief sought; and (c) such relief

party; (b) a prima facie case is made out for the relief sought; and (c) such relief
may be granted unless cause is shown why it should not be granted.”
(Footnotes have been omitted).

3 Member of the Executive Council for the Department of Health, Eastern Cape v BM (213/2021)
[2022] ZASCA 140 (24 October 2022).

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[15] In National Director of Public Prosecutions v Mohamed NO and Others4
the court expressed itself as follows on the rule nisi and the applicable
principles; ‘[28] Our common law has recognised both the great importance of
the audi rule as well as the need for flexibility, in circumstances where a rigid
application of the rule would defeat the very rights sought to be enforced or
protected. In such circumstances, the court issues a rule nisi calling on the
interested parties to appear in court on a certain fixed date to advance reasons
why the rule should not be made final, and at the same time orders that the rule
nisi should act immediately as a temporary order, pending the return day. This
practice has been recognised by the South African courts for over a century:

The term ‘rule nisi’ is derived from English law and practice, and the rule may
be defined as an order by a court issued at the instance of the applicant and
calling upon another party to show cause before the court on a particular day
why the relief applied for should not be granted. Our common law knew the
temporary interdict and, as Van Zyl points out, a ‘curious mixture of our practice
with the practice of England’ took place and the practice arose of asking the
court for a rule returnable on a certain day, but in the meantime to operate as a
temporary interdict.’

The order by consent and analysis

[27] The parties in this matter obtained an order by consent. In terms of that order
the respondents were required to show cause on the return date why in summary
form the following orders should not be made final;
27.1. setting aside the search and seizure warrants;
27.2. returning the gadgets seized during the execution of the search and
seizure warrants mentioned in annexure “A”;
27.3. destruction of any duplicated or copied materials;
27.4. interdicting the copying or duplication of the seized material;

4 National Director of Public Prosecutions v Mohamed NO and Others 2003 (4) SA 1 (CC).

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27.5. returning the items mentioned in annexure “B”, and that;
27.6. costs are reserved.

[28] In light of the consent order, the issue for determination is simply whether or not
the rule should be confirmed or discharged as well as the issue of the reserved
costs.

[29] To the consent order there are two annexures, “A” and “B” attached. They list
items that were seized on 03 April 2023 following the issuance of the warrant on 29
March 2023. As mentioned above, the items listed in “A” were tendered and made
available to the applicant in accordance with the draft order. That much is apparent
from exchanged correspondence and the pleadings. In fact, in the supplementary
affidavit, the respondents indicate that the items listed in annexure “A”, were handed
in at Brooklyn SAPS and registered in the SAP13 register kept at that police station.
They are available, it was pleaded, for collection there.

[30] The second respondent is of the view that the applicant is making it difficult for
them to comply with the court order in particular, the return of the gadgets, in that he
provided the investigating team with wrong passwords. As a result, some of the
gadgets could not be downloaded by the SAPS Cyber office. This matter was heard
over a year ago. One would have expected that by now all the gadgets would have
been downloaded. The items mentioned in “B” were, according to the consent order,
to be given to the applicant on 30 April 2023 “provided” they were preserved and the
integrity of the copying process was maintained. I take the view that the couching of
the order permits the holding on to the gadgets that have not been downloaded, and
in respect of which passwords or patterns have not been provided. The order in
relevant parts reads as follows;

“1.2.5. the items mentioned in Annexure "B" hereto shall be returned to the
Applicant
within 15 days (FIFTEEN) days of the granting of this order, provided that:

Applicant
within 15 days (FIFTEEN) days of the granting of this order, provided that:
1.2.5.1. the chains of custody of the seized items during the marking of copies
as
contemplate in paragraph 3.2. is preserved.

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1.2.5.2. Copies of the electronic information and/or data stored on the items
mentioned in
Annexure "B" hereto shall be made in a manner that preserves the chain of
custody and integrity of the items seized and any copies made, which copies
shall be retained in sealed evidence bags, and which shall be subject, mutatis
mutandis, to paragraphs 1.1 and 1.3 hereof.”

[31] A balance has to be struck between the interest of the applicant and those of
the respondents. The overriding principle being that whatever decision the court
arrives at, it is arrived at in the interests of justice. The order was obtained by
agreement. Therefore, I can think of no scenario where the decision, be it to confirm
or discharge the rule, will be prejudicial to any of the parties, in circumstances where
they consented to an order.

[32] It is apposite that I deal with the contention or submission by the applicant that
there was insufficient information placed before the first respondent when she issued
the warrant. I have to respectfully disagree with that submission. As mentioned
above, all that needs to happen is that the jurisdictional requirements set out in
sections 20 and 21 of the Criminal Procedure Act5 be shown to exist. An article or
item;
1. which is concerned in or is on reasonable grounds
believed to be concerned in the commission or suspected commission of an
offence, whether within the Republic or elsewhere;
2. which may afford evidence of the commission or
suspected commission of an offence, whether within the Republic or elsewhere;
or
3. which is intended to be used or is on reasonable
grounds believed to be intended to be used in the commission of an offence;
shall be seized only by virtue of a search warrant
issued-

5 51 of 1977

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(a) by a magistrate or justice, if it appears to such magistrate or justice from
information on oath that there are reasonable grounds for believing that any
such article is in the possession or under the control of or upon any person or
upon or at any premises within his area of jurisdiction; or 

(b) by a judge or judicial officer presiding at criminal proceedings, if it appears
to such judge or judicial officer that any such article in the possession or under
the control of any person or upon or at any premises is required in evidence at
such proceedings. 


[33] Similarly, section 29 of the Cybercrimes Act6, lists a number of jurisdictional
factors that must exist. Section 27 of the Cybercrimes Act ties the two Acts together
for it provides that the provisions of the Criminal Procedure Act are applicable to
Chapter 4 of the Cybercrimes Act which is headed “POWER TO INVESTIGATE,
SEARCH, ACCESS OR SEIZE”. There is no incongruity between the relevant
provisions of the two Acts. Besides on his own version the applicant stated “……….
the procedural steps taken to obtain the warrant is not under scrutiny in this matter
and I accept that, procedurally the warrant was sought and obtained as required by
the Act as well as the process and procedures of the relevant Court.”

[34] In Minister for Safety and Security v Van Der Merwe and Others 7 , the
Constitutional Court before whom the question was the alleged unlawfulness of
search warrants, discusses at length the law around search and seizure warrants as
well as the safeguards that exist in our law for the protection of the Constitutional
rights of those who are at the receiving end of the warrants. The jurisdictional
requirements for the issuance of a search warrant are narrowed down to simply two,
namely; (i) the existence of a reasonable suspicion that a crime has been committed
and (ii) the existence of reasonable grounds to believe that objects connected with

and (ii) the existence of reasonable grounds to believe that objects connected with
the offence may be found on the premises or persons intended to be searched.

6 19 of 2020.
7 Minister for Safety and Security v Van Der Merwe and Others (CCT90/10) [2011] ZACC 19; 2011 (5)
SA 61 (CC); 2011 (9) BCLR 961 (CC); 2011 (2) SACR 301 (CC) (7 June 2011)

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Those two requirements were present at the time the second respondent applied for
a warrant before the first respondent.

[35] The Constitutional Court further discussed the Intelligibility Principle which it
described thus;
“[14] The intelligibility requirement is a common law principle introduced by the
courts and is quite separate and distinct from the requirements of sections 20
and 21. As the name suggests, intelligibility is on the one hand about ensuring
that the police officer understands fully the authority in the warrant to enable
her to carry out the duty required of her, and on the other that the searched
person also understands the reasons for the invasion of his privacy.”

[36] Referencing Thint
8, the Court went on the say the following at paragraph 18;
“As Langa CJ observed, the most relevant requirement in relation to the
principle of intelligibility is that a warrant must convey intelligibly, to both the
searcher and the searched person, the ambit of the search it authorises.
Intelligibility also requires that a warrant be reasonably intelligible in the sense
that it is reasonably capable of being understood by a reasonably well-informed
person who understands the relevant empowering legislation and the nature of
the offences under investigation.”

[37] On the authority of Thint and van der Merwe, mentioned above, the process of
the issuance of the warrant was comprehensible, there was accountability and
predictability in the exercise of all power. The warrant in my view was crafted, regard
being had to its contents, in a manner that enabled the applicant to know why rights
have to be interfered with in the manner authorised by the warrant.

[38] The rule nisi has served its purpose. Firstly, it secured on an interim basis the
setting aside of the search and seizure warrant. Secondly, it secured the release of

8 Thint (Pty) Ltd v National Director of Public Prosecutions and Others; Zuma and Another v National

Director of Public Prosecutions and Others [2008] ZACC 13; 2009 (1) SA 1 (CC); 2008 (12) BCLR
1197 (CC).

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the items listed in annexure “A” or at least they were tendered to the applicant and
made available for collection by him at Brooklyn Police Station. Thirdly, it secured
the items listed in annexure “B” in the hands of the SAPS and made provision for the
download thereof. It also provided for the integrity of the chain of custody to be
maintained and thereafter the release of those items to the applicant. Unfortunately,
it is said that the applicant had not provided correct passwords and is some
instances provided none. It would not, in the circumstances, be in the interest of
justice to confirm the rule.

Costs

[39] Previously, when the rule was extended, costs were reserved. The award of
costs falls within the discretion of the court. There appears to me to be no reason
why any of the parties should be mulcted with costs as there does not appear, on
record, to be serious contestation about penalizing any of the parties with a costs
order. Besides, each of the parties partially succeeded. I am of the view therefore
that none of the parties should be out of pocket.

Order

[40] The following order is made;
1. The rule nisi is discharged and;
2. There is no order as to costs.

SA THOBANE
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, JOHANNESBURG

APPEARANCES:
For Applicant: Mr. Charles E. Thompson
Instructed by: Martin Vermaak Attorneys
Bryanston, Johannesburg

For Respondent: Ms. Kefilwe Sithole

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Instructed by: The State Attorney
Johannesburg

Date of the hearing: 05 February 2024
Date of judgment: 24 July 2025 - This judgment was handed down
electronically by circulating to the parties’ legal representatives by e-mail, by being
uploaded to the CourtOnline platform of the Gauteng Division and by release to
SAFLII. The date and time of hand down is deemed to be 16:00 on 24 July 2025.