SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MBOMBELA
CASE NO: 2025-145551
(1) REPORTABLE:NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES/NO
DATE: 12/09/2025
SIGNATURE
In the matter between:
BOOMTOWN INTERNET CAFÈ APPLICANT
And
MINISTER OF SAPS N.O., 1st RESPONDENT
THE STATION COMMANDER LYDENBURG
POLICE STATION N.O. 2nd RESPONDENT
This judgment was handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date and time for hand -down is deemed to be
12 September 2025 at 15:00.
JUDGMENT
Mangena AJ
[1] On the 15 August 2025 members of the S outh African police services
conducted a search and seizure operation at the premises of the applicant. The
operation followed receipt of information that there were illegal gambling operations
taking place in the premises. They seized various items believed to be the
instruments of the crime and recorded them in the SAP 13 for safe keeping.
[2] The applicant instituted proceedings for the return of the seized items on the
basis that the search and seizure was not authorised and that there was no illegal
gambling operations taking place at the property.
[3] The Minister is opposing the application and has raised 3 preliminary points
relating to lack of urgency, pending criminal investigations and non -joinder of the
Mpumalanga Gambling Authority. In relation to the merits, the minister says that
there was a valid search and seizure warrant issued by the magistrate and the police
acted on the strength of that warrant. They further contend that same was presented
to the people they found at the premises. Mr Ngomane arguing on behalf of the
minister urged me to dismiss the application and award costs in favour of the
respondents.
[4] I indicated to the parties that mandamant van spolie proceedings are urgent
and as I see it the applicant was not dilatory in coming to court and will therefore
allow them to make submissions on non-joinder and pending investigations.
[5] Mr Vardokos, for the applicant urged me to dismiss the preliminary points as
lacking in merit. With regard to non -joinder he submitted that Mpumalanga Gambling
Authority will not be affected by the order regarding the legality or otherwise of the
search. He found support i n Selona v Minister of Police and Others (case number
2023- 064414) a judgment of the Gauteng Division which he said carries persuasive
value. I agree that the Gambling Authority will not be directly affected by whatever I
make.
[6] With regard to the p ending criminal investigations I do not think courts should
allow an unlawful conduct to continue in perpetuity simply because police are
investigating an offence. The police represent the state in the performance of their
duties and they are required to c omply with the law and follow prescribed
procedures. If they do not follow procedure prescribed by legislation, their conduct
becomes unlawful. I therefore dismiss this point as well.
[7] On the merits of the application, Mr Vardakos submitted that the search and
seizure warrant attached to the respondent's answering affidavit does not help the
respondents as it is defective in that it fails to clearly state the "common law or
statutory of fence with applicable Act name and number as well as the relevant
offence section." The warrant attached to the answering affidavit simply states
"illegal gambling" without indicating the essential facts.
[8] The supreme court of appeal discouraged t his manner of issuing the warrants
and said that a search warrant carries" awesome powers as well as formidable
consequences. It must be issued with care, after careful scrutiny by a magistrate or
justice, and not reflexively upon a mere ' checklist approa ch". Gambling is not a
common law offence and it was incumbent upon the magistrate "who is trained and
experienced in law" to know that and ensure that essential facts are inserted in the
warrant. The magistrate failed to do this. See Goqwana v Minister of Safety NO and
Others, 2016 (1) SACR 384 (SCA) para 30.
[9] The failure by the magistrate to heed the guidance of the supreme court of
appeal is a cause for concern both to the police and the people affected by "illegal
gambling". Police work very hard to combat crime and ensure that they follow the
gambling". Police work very hard to combat crime and ensure that they follow the
rules whenever search and seizure warrants are needed. They rely on the
magistrates and designated judges to ensure that the warrants they sign authorising
them to perform their duties are compliant in a ll material respects. Failure to do so
has serious consequences to the morale of the police and ultimately undermine the
administration of justice. It is therefore incumbent upon magistrate issuing warrants
to do so with care and support police in combatin g crime that is spiralling out of
control.
[10] I am aware of authorities that say courts should be slow to set aside search
warrants on technical grounds. I however do not read these authorities to be saying
that a court of law should give a stamp of approval to an unlawful conduct on the part
of the police. The guideline emerging from authorities is that each case must be
decided on its own merits.
[11] In this case constable Mulaudzi was acting on the basis of a tip off by an
informer that there were illegal activities taking place in the applicant's premises. He
knew that they (police) were going to conduct an operation relating to the
contravention of a gambling legislation. He shou ld have prepared an affidavit with
sufficient particulars regarding the nature of the offence being committed so that the
magistrate could insert those particulars in the warrant. Failure to set out the nature
of the offence renders the warrant defective.
[12] Guided by the authority of the supreme court of appeal which is binding on
me, I find that the search and seizure warrant used by the police on the 15 August
2025 authorising them to enter the premises of the applicant and seize the enlisted
items was defective, of no legal force and effect. It stands to be set aside.
[13] The following orders are made
1. The matter is urgent and deviation from the normal rules of service is
condoned.
2. The preliminary points raised by the respondents are dismissed.
3. The search and seizure warrant issued by the magistrate Lydenburg on
14 August 2025 authorising the respondents to enter applicant's
premises and seize items is set aside
4. The second respondent and any other person in possession or control of
the applicant’s movable goods listed on annexure A to the applicant’s
notice of motion is ordered to forthwith return them to the applicant’s
premises at 8[…] V[...] Street, Lydenburg.
5. The respondents are ordered to pay costs on a party and party sc ale A of
the High Court tariffs.
______________________________
MANGENA AJ
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MBOMBELA
Appearances
For the plaintiff: VARDAKOS ATORNEYS
Counsel for plaintiff: Mr. Vasilios Vardakos
For the respondent: STATE ATTORNEY MBOMBELA
Counsel for respondent: Adv. Ngomane
Date heard: 11 September 2025
Judgment delivered: 12 September 2025