REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
CASE NO: REV168/2024
In the matter between:
CHIDIEBERE MODESTUS ANYANWU APPLICANT
And
ACTING REGIONAL COURT MAGISTRATE FIRST RESPONDENT
DIRECTOR OF PUBLIC PROSECUTIONS
LIMPOPO PROVINCE SECOND RESPONDENT
_______ _____
JUDGEMENT
(1)
(2)
(3)
REPORTABLE: YES/NO
OF INTEREST TO THE JUDGES: YES/NO
REVISED.
DATE ........... . 81 G NATURE: ............ .
KGANYAGO J
[1] The applicant is appearing in Modimolle regional court charged with one count
of the alleged offence of contravening the provisions of section 4(b) read with
sections 1, 13, 17 to 25 and 64 of the Drugs and Drug Trafficking Act 14 0 of
1992 – Possession of drugs and read with section 250 of the Criminal
Procedure Act 51 of 1977 as well as section 51(2)(a), Part II of Schedule 2 of
the Criminal Law Amendment Act 105 0f 1997. The applicant is been legally
represented and has pleaded not guilty to the count.
[2] The first witness for the prosecution to testify was Mporoma Abel Phetla, who
is a police officer and colonel by rank, and was also the station commander of
Bela-Bela police station at the time of the applicant’s arrest. He testified that
he was phoned by captain Kwinana requesting him to prepare a search
warrant following information about drugs. He prepared the warrant but they
could not find any magistrate in Bela-Bela magistrate court to sign it. Phetla
realised that the delay in obtaining the warrant would defeat the object of the
search as Kwinana had informed him that he had reasonable grounds to
suspect that the information that he had received were positive.
[3] Phetla decided to sign the warrant that he had completed and gave it to
Kwinana. Kwinana went on to conduct the search. Later Kwinana phoned
Phetla to notify him that he did find the drugs, and they managed to arrest the
suspect on the information that they have followed. Phetla conceded that h e
did not have the authority to sign the warrant, but had seen it fit to sign as the
delay in obtaining such a warrant was going to defeat the object of the search.
[4] Under cross -examination when asked why he was saying that he was not
authorised to sign the search warrant, he stated that because only the
magistrate or Judge of the judicial office presiding on the matter can issue a
search warrant. Further that he knew that he was not authorised to sign the
warrant, hence after preparing it he tried to secure either a magistrate or
Judge, but could not succeed. Counsel for the applicant corrected Phetla that
he did have the authority to sign the warrant but did not follow the correct
procedures, in that Kwinana did not give him the information under o ath, and
he also did not make a formal application. Phetla conceded to that, and
further that the procedure that he had followed was flawed, and that the
warrant cannot be valid as it was not properly applied for. However, Phetla
disagreed that the evidence that was obtained as a result of an invalid warrant
was inadmissible, in that as police officer he can still search without a warrant.
[5] After the witness has finished testifying, counsel for the applicant notified the
court of his intention to oppose the admissibility of the evidence obtained as a
result of the search warrant that was signed by Phetla. As per the transcribed
record, after this notification, there was a short adjournment. When the trial
resumed, counsel for th e applicant did not pro ceed with his application, but
instead the prosecution called its second witness Malesela David Kwinana.
He testified that he is employed by the South African Police Services (SAPS),
attached to the Waterberg flying squad. He received information from his
informer about a man who was selling drugs in Bela -Bela. He feared that the
drugs might be moved and he phoned the magistrate court Bela -Bela, and
was told that the court was busy and there was no one to assist them with a
search warrant.
[6] Kwinana went to colonel Phetla and explained to him the situation the y found
themselves in. Phetla prepared a search warrant and gave it to them. After
that Kwinana and s ergeant Langa proceeded to the address they have been
provided for by their informer and found the app licant. They asked the
applicant permission to search the house and permission was granted. They
searched inside the house , but did not find anything. The applicant pointed
them a place outside the house where he had buried the dr ugs. After digging
they found the drugs, and thereafter he phoned the members of the LCRC to
come and take the photos of the scene . After photos were taken, the y
explained to the applicant his constitutional rights and thereafter he was
placed under arrest.
[5] Kwinana further testified that on arrival at the applicant homestead, they did not
show the applicant the search warrant . That usually when they arrive in such
matters, the person will ask to see the search warrant, but if the person did
not ask to see the search warrant, they will not show him. In this case they did
not deem it necessary to show the applicant the search warrant as he had
given the m permission to search . Kwinana further stated that they did not
force the applicant to search his ho use, but he had agreed on his own. That
when they applied for the warrant, their intention was that if the applicant
requested to see the warrant, they must be in a position to show him.
[6] The witness was cross -examined and he stated that when he ap plied for the
search warrant before colonel Phetla, he had told Phetla that they were
having information to make an urgent search. He conceded that the
information that he gave to colonel Phetla was not made under oath. He
stated that it was for the first time he made an application before colonel
Phetla, and he had never made such an application before. He further stated
that he had informed colonel Phetla that it was the first time he made such
kind of an application. The witness stated that when they arr ived at the
applicant’s homestead they did not show him the warrant, as in most cases
they show or give the person the search warrant when the person indicated
that he wants to see it . In this case the applicant did not indicate that he
wanted to see it. Counsel for the applicant applied that the search warrant be
handed in as an exhibit, and it was duly accepted into evidence as an exhibit.
[7] The prosecution called Phillemon Tshabangu as its third witness. He testified
about the exhibit that he had received from captain Kwinana which were in a
sealed bag with a serial number . On receipt of the exhibit he had put it inside
the safe of the strong room and locked it. Thereafter he detaine d the
applicant. The said exhibit was taken by sergeant Nkwe the SAPS clerk the
following day. The witness was cross-examined by the defence counsel.
[8] The prosecution called Bafedile John Nkwe as it fourth witness. He testified
that he had received the exhibit from captain Tshabangu so that he can be
able to keep it in the safe and be the only one to have control of it. After some
days he handed the exhibit to sergeant Mabala, the investigating officer. The
witness was cross-examined by the defence counsel.
[9] The prosecution has called Lesiba Lucas Mabala as its sixth witness. He
testified that he is the investigating officer, and he is the one who had
investigated the matter. He is the one who took the drugs that were found at
the applicant’s p remises to Forensic Science Laboratory (FSL) in Pretoria to
be verified. The said exhibit was booked out of the SAPS 13 by sergeant
Sebola who handed them to him. The witness was cross -examined by the
defence counsel.
[10] The prosecution has called Tlo u Jeffrey Langa as its seventh witness. He
testified that he was with captain Kwinana on 31st August 2022 when Kwinana
arrested the applicant at a certain house in Bela -Bela. Whilst they were doing
patrol around Bela -Bela Kwinana had received information a bout a Nigerian
citizen who was dealing and selling drugs around Bela -Bela. Kwinana phoned
colonel Phetla to assist in obtaining the search warrant. They went to the
police station, and according to his observation when they arrived, the search
warrant was already prepared, as Kwinana went in and came back with it.
After obtaining the search warrant they proceeded to the identified house and
found the applicant. They asked the applicant permission to search his house
and he gave them permission, and also vo luntarily took them out of the house
and pointed to where the drugs were hidden. They dig on the spot pointed by
the applicant and found the suspected drugs inside the buckets. After that
Kwinana placed the applicant under arrest.
[11] The members of the LCRC were called to come and take p hotos of the scene.
Later Kwinana detained the applicant and booked in the exhibit in the SAP13
book, and a case docket was opened. Before they started searching, the
applicant did not ask them to show him the search warrant. They started
searching the house because the applicant had voluntarily given them
permission to search his house without asking them to see the search
warrant. The witness stated that he did not know the procedure of how to
apply for a search warrant, and that what he knows is that it is obtained from a
magistrate. The witness was cross-examined by counsel for the applicant.
[12] The prosecution called Masilo George Sebola as its eight witness. He testified
that he and Mr Mabala went to Bel a-Bela and book out the drugs. After
collecting the drugs , they took them to their office in Polokwane where they
stored them in a safe. On 7th September 2022 he took out the drugs from the
safe and delivered them at FSL in Pretoria. The witness was cross -examined
by counsel for the applicant.
[13] The prosecution called Patricia Mabela as its ninth witness. She testified that
she is the crime scene management or attender, and also do crime scene
photography. On 30 th August 2022 he received a call from lieutenant-colonel
Smith to attend to a crime scene in Bela -Bela. On arrival at the crime scene
he found captain Kwinana who requested her to take photos of the exhibits
that he had found at the crime scene. The exhibits that she was requested to
take photos were alleged drugs that were found at that house in Bela -Bela.
After ta king the photos of the exhibits, she gave the forensic bags to the
police officers at the scene and thereafter left. Later she compiled a photo
album comprising of 10 photographs, and also deposed a section 212
affidavit. The spot where she took the photographs was pointed to her by the
applicant. The witness was cross-examined by counsel for the applicant.
[14] The prosecution called Thobeka Queen Nhlapo as its tenth witness. She
testified that she is a warrant officer attached to FSL , and is a forensic
analyst. On 8th November 2022 she received a sealed evidence bag from the
chemistry section. She opened the evidence bag and found that it contained
(i) seventeen plastic bags each containing solid substance; (ii) one plastic bag
containing an amount of crystalline substance; and (iii) one plastic ba g
containing an amount of crystalline substance. After examining the exhibit
material mentioned in (i) he found that it contained methcathinone which is
listed in Part 3 of Schedule 2 of the Drugs and Drug Trafficking Act 140 of
1992. The total mass of the exhibit material was 1 692.90 grams. The exhibit
material mentioned in (ii) contained methamphetamine which is listed in Part 3
of Schedule 2 of the Drugs and Drug Trafficking Act 140 of 1992. The total
mass of the exhibit material was 13.60 grams. The ex hibit material mentioned
in (iii) contained ephedrine hydrochloride which is listed in Part 1 of Schedule
1 of the Drugs and Drug Trafficking Act 140 of 1992. The total mass of the
exhibit material was 498.32 grams. The witness stated that the street name of
the drug mentioned in (i) was known as CAT, one mentioned in (ii) known as
tik, and the one mentioned in (iii) known as ephedrine which is a precursor for
preparing tik and CAT. The witness was cross examined by counsel for the
applicant. That concluded the evidence of the prosecution and it closed its
case.
[15] After the prosecution had closed its case, counsel for the applicant brought an
application seeking that the evidence obtained as a result of the search
warrant be excluded bec ause the search warrant was unlawful. Counsel for
the applicant in the court a quo submitted that if applicant’s application was
upheld, there will be no evidence left and that will enable him to bring an
application for the applicant to be discharged in t erms of section 174 of the
Criminal Procedure Act ( CPA). The prosecution opposed the applicant’s
application and submitted that the search warrant was merely a back -up, and
that captain Kwinana had asked for permission to search from the applicant
which pe rmission was granted. The search that was conducted at the
applicant premises was a result of the permission granted by the applicant,
and was not based on the search warrant. The court a quo dismissed the
applicant’s application and ruled that the evidenc e obtained in terms of the
warrant was at that point admissible.
[16] Aggrieved by the ruling of the court a quo, the applicant has brought a review
application seeking orders that the ruling handed down by the first respondent
on 17 th September 2024 ad mitting evidence which is inadmissible be
reviewed and set aside; and further make an order directing the first
respondent to refrain from admitting any evidence which was obtained as a
result of an unlawful and/or invalid search warrant. The grounds upon which
the review application is based are that the first respondent has failed to
conduct a trial within trial, and has also made a ruling without giving the
applicant an opportunity to give evidence under oath, and has based its
decision on the evidence led by the prosecution only. That the evidence which
was obtained as a result of an invalid search warrant will definitely render the
trial unfair and detrimental to the administration of justice. Neither of the
respondents have filed any opposing papers or attended court. The matter
proceeded on default basis.
[17] The proceedings in th e main matter have not yet been finalised. What this
court is called upon to determine is whether the court a quo has committed a
gross irregularity in admitting the evidence obtained in terms of the search
warrant which would result in grave injustice threatening or whether
intervention is necessary to attain justice. Generally, courts do not readily
intervene in incomplete proceedings. The general principle is that a case
should follow its normal course, through acquittal, or conviction and
sentencing, before t he matter is taken to a higher court. The practice of
piecemeal reviews and appeals are discouraged.
[18] In Magistrate, Stutterheim v Mashiya1 Cameron JA said:
“[13] That the higher Courts have supervisory power over the conduct of proceed ings in
magistrates’ courts in both civil and criminal matters is beyond doubt. This includes the power
to intervene in unconcluded proceedings. This Court confirmed more than four decades ago
that the jurisdiction exists at common law. It subsists under t he Constitution, which creates a
hierarchical court structure that distinguishes between superior and inferior courts by giving
the former but not the latter jurisdiction to rule on the constitutionality of legislation and
presidential conduct as well as i nherent power. The Constitutional Court has emphasised the
role of the higher Courts in ensuring ‘quality control’ in the magistrates’ courts, and the
importance of the High Court’s judicial supervision of the lower courts in reviewing and
correcting mistakes. This entails as Chaskalson CJ has observed, that the higher Courts can
’supervise the manner in which’ lower courts discharge their functions. His general formation
echoes the provisions of the Criminal Procedure Act, which provides that in criminal
proceedings subject to review in the ordinary course the High Court may, amongst many
ample powers, ‘remit the case to the magistrate’s court with instructions to deal with any
matter in such manner as’ it may think fit.
[14] The higher Courts, however, have emphasised repeatedly that the power to intervene in
uncloncluded proceedings in the lower courts will be exercised only in cases of great rarity –
where grave injustice threatens, and where intervention is necessary to attain justice. The
same approach has been followed under the Constitution. At the same time, although the
cases in which intervention has actually occurred are uncommon, this Court has refused to
define or limit the circumstances in which intervention would be justified. The categories
remain open”.
remain open”.
[19] The basis of the applicant’s review application is that Kwinana has conducted
a search at the applicant’s premises based on an invalid search warrant, and
that the evidence obtained as a result of such a warrant be excluded. Counsel
for the applicant has notified the court a quo of his intention to oppose the
admissibility of such evidence as early after the testimony of the prosecution ’s
1 2004 (5) SA 209 (SCA) at paras 13 and 14
first witness who is the author of the warrant in question. However, the
witnesses for the prosecution testified that even though they were in
possession of the search warrant, they d id not use it to conduct the search on
the applicant’s premises, but their search was based on the permission which
the applicant has voluntarily given to them. The witnesses for the prosecution
stated that it was not necessary to show the applicant the se arch warrant as
he did not request to see it, but has just voluntarily given them permission to
search, and therefore the evidence that they have obtained from the
applicant’s premises was not as a result of the search warrant.
[20] The prosecution did not hand in the search warrant into evidence as according
to their version the search was not based on the warrant. It was counsel for
the applicant who had requested that the search warrant be admitted into
evidence and marked as an exhibit. Counsel for t he a pplicant did not
immediately brought an objection on the admissibility of the evidence
allegedly obtained through the search warrant as the prosecution at no stage
led evidence which shows that such evidence was obtained through the
alleged invalid sea rch warrant. The applicant’s application was brought after
the prosecution ha d closed its. The applicant’s application is so wide and
does not specify which evidence should be excluded. Even in the review
application it has not been specified which evidence should be excluded. It is
not the duty of this court to start speculating which evidence should be
excluded. It is upon the applicant to be clear what needs to excluded and not
leave any room for guessing.
[21] The applicant in his founding aff idavit of the review application stated that the
first respondent ruled on the admissibility of the evidence without conducting a
trial within a trial and also without giving the applicant an opportunity to give
evidence under oath. From the record of the proceedings, the applicant had
not requested for a trial within a trial but opted to bring an oral application after
the close of the case for the prosecution. The court a quo ruled on the
application that was brought before it, and could not rule on appli cation which
was never brought before it. The applicant was at no stage prevented from
presenting viva voce evidence, but opted to make oral submissions , and after
his application was dismissed, instituted his review application . The
applicant’s submissions on this issue are misplaced.
[22] The prosecution ’s witnesses have testified that their search at the applicant’s
premises was not based on the search warrant, but on the consent that was
given to them by the applicant, and felt that it was not necess ary to show the
applicant the search warrant. The applicant has not yet r ebutted this version.
Section 22(a) of the Criminal Procedure Act 2 (Act) authorises a police official
to search any person , container or premises if the person concerned consent
to such search. The uncontested version of the prosecution case is that the
applicant had consented to such a search, and it was no longer necessary to
show him the warrant. The evidence tendered by th e prosecution regarding
the search does not need a trial within a trial to determine its admissibility, but
if the applicant wishes to challenge it he is at liberty to take witness stand and
do so.
[23] From what appears from the applicant’s application in the court a quo, and
which was confirmed by counsel for the applicant on date when the review
application was heard, the y wanted the evidence of the search warrant to be
2 51 of 1977
rendered inadmissible in order to pave the way for them to bring an
application for a discharge of the accused in terms of section 174 of the Act.
The applicant has allowed the trial to run until the prosecution closed its case
without challenging the alleged evidence that was obtained through the
search warrant. The prosecution did not present evidence to the effect that
the search and seizure on the applicant’s premises was based on the search
warrant hence the applicant did not have an opportunity to object to it. In fact,
the search warrant itself was introduced by the applicant ’s co unsel during
cross-examination and requested that the search warrant be admitted into
evidence and marked as an exhibit. The prosecution had at no stage relied on
the warrant in justifying its search at the applicant’s premises.
[24] The applicant wants to pave the way to enable him to apply for a discharge in
terms of section 174 of the Act, and have realised that with the evidence as it
stands, their chances of succeeding with the 174 application are non -existent.
Counsel for the applicant here in court when he was engaged by the court on
why he only made the application after the close of the prosecution case,
submitted that the y could see where the matter was going to end, hence the
application. It is therefore not an issue about grave injustice threatening, but
they wanted this court to assist them in paving the way to bring a section 174
application as they foresee that the applicant might be convicted.
[25] The manner in which the applicant brought his application in the court a quo is
problematic. If indeed the evidence of the search was obtained through an
invalid search warrant, it was proper for the applicant to have first challenged
the validity of the search warrant. Once that is achieved, it will pave the way
for the evidence obtained through the alleged invalid warrant to be rendered
inadmissible. The action of Phetla in signing the search warrant amounted to
an administrative action. Until the search warrant is set aside by a court in
proceedings for judicial review, it exists in fact and it has legal consequences
that cannot be overlooked. An unlawful administrative act is capable of
producing legally valid consequences for as long as the unla wful act is not set
aside. (See Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 3).
The applicant in my view, had followed the wrong approach in seeking to
render the evidence inadmissible without first challenging the validity of the
search warrant which remains legally effective.
[26] The motive of the applicant in bringing the rev iew application, justify why
higher courts have repeatedly emphasised that the power to intervene in
unconcluded proceedings in lower courts will be exercised only in cases of
great rarity. The current case is not one of those cases of great rarity. This
court will not intervene merely to prevent the applicant from been convicted. If
the applicant is convicted he still had other avenues in which he can exercise
his rights. The applicant has failed to show that the intervention at this stage
of the proceedings is necessary to attain justice, but is been based merely on
the fear that he already knew what the outcome of the case is going to be.
This court will not intervene based on assumptions or speculation, but a solid
case must be made which shows that grav e injustice threatens or intervention
is necessary to attain justice. It follows that the applicant’s review application
stands to fail.
[27] In the result the following order is made:
27.1 The applicant’s review application is dismissed.
3 [2004] ZASCA 48; [2004] 3 AII SA 1 (SCA), 2004 (6) SA 222 (SCA) (28 May 2004) at para 26
27.2 There is no order as to costs
KGANYAGO J
JUDGE OF THE HIGH COURT OF SOUTH AFRICA,
LIMPOPO DIVISION, POLOKWANE
I AGREE
_____________________________
STROH AJ
ACTING JUDGE OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCES:
Counsel for the applicant : NC Malumbete
Instructed by : Malumbete & Makhubele Inc
Counsel for the respondents : In default
Date heard : 5th September 2025
Electronically circulated on : 3rd October 2025