IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
RAUBEX CONSTRUCTION (PTY) L TO
and
THE MINISTER OF POLICE
WARRANT OFFICER KHAUHELO JOSEPH TAU N.O.
MAGISTRATE A MNGUNI N .O .
Not reportable
Case number: 2925/2025
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
THIRD RESPONDENT
Neutral citation: Raubex Construction (Pty) Ltd v The Minister of Police and Others
(2925/2025) [2025] ZAFSHC 348 (6 November 2025)
Coram: Loubser J
Heard: 24 July 2025
Delivered: 6 November 2025
Summary: Application enrolled on the urgent roll found not to be urgent-notwithstanding,
matter not removed from the roll and the merits of the application decided.
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ORDER
The application is dismissed with costs, including the costs of two counsel where so
employed.
JUDGMEN T
LoubserJ
[1] This is an application for the setting aside of a search and seizure warrant and
for ancillary relief. The notice of motion is styled as follows:
a) That non-compliance with the Uniform Rules of Court relating to forms, service
and time periods be condoned and that this matter be heard as an urgent application.
b) That the Search and Seizure Warrant issued in terms of s 21 read with s 20 and
chapter 2 of the Criminal Procedure Act 51 of 1977, under docket number: DPCI: SCI - P
COMM FS OCI UNIT CAS: 01/07/2024 by the Third Respondent, with date stamp 2 May
2024, in the Welkom District Court jurisdiction, be set aside.
c) That the items as listed in the Inventory be returned to the Applicant within 24 hours
of date of this order.
d) A retraction be published on the South African Police Services website, retracting the
publications of 21 May 2025 within 24 hours of date of this order.
e) That the First-and Second Respondents be ordered to pay the cost of the application,
jointly and severally the one to pay the other to be absolved, on scale C.
[2] The application was set down for hearing on an urgent basis at 14h00 on
Thursday, 3 July 2025 during recess_ However, prior to that date the parties agreed that
opposing papers would be filed by the respondent by 27 June 2025. This was confirmed
by the applicant's attorneys in a letter to the State Attorney dated 17 June 2025. In the
letter it is also informed that, 'in light of the above and without relinquishing any of our
rights we deem it practical to remove the matter from the roll on 3 July 2025 and place it
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on the roll for 24 July 2025. The matter will therefore be placed on the normal opposed
motion roll .. .' In its subsequent replying affidavit, the applicant referred to this
agreement and contended that urgency was therefore no longer a point of contention.
(3] This submission in the replying affidavit was made in response to the stance
taken by the respondents in their answering affidavit to the effect that the application was
not urgent. They stated that the deviation from the prescribed time periods is not
commensurate with the urgency of the matter.
(4] At the hearing of the application on 24 July 2025, the debate around the urgency
of the matter arose again. It was submitted on behalf of the applicant that urgency is not
an issue anymore because the matter was placed on the normal opposed roll following
negotiations between the parties. On behalf of the respondents, it was submitted, on the
other hand, that the issue of urgency is still relevant and alive and needs to be adjudicated
by the court. It was further submitted that the applicant has failed to make out a case for
urgency and that the application should therefore be struck from the roll with costs.
[5] Now , in the letter of 17 June 2025 alluded to above, the applicant's attorneys
stated that 'without relinquishing any of our rights', the matter will be placed on the normal
opposed motion roll. This is a clear indication that the applicant elected to keep the door
open to rely on the urgency of the matter should the need arise. After all, not a word is
spoken in this letter or any of the other correspondence between the parties that the issue
of urgency had been resolved.
[6] Furthermore, the application papers show that the respondents were not afforded
the normal time periods to either file their notice of intention to oppose or their answering
affidavit. The notice to oppose was required within five days from date of the issue of the
affidavit. The notice to oppose was required within five days from date of the issue of the
application as opposed to the ten days that ordinarily applies. The answering affidavit was
required by 20 June, that is four days after the notice to oppose, as opposed to the 15
court days that would ordinarily apply. After the agreement between the parties, the
respondents still found themselves in a position where they had to consult and draw the
answering affidavit on truncated time periods, since the answering affidavit then had to
be filed by 27 June 2025. Put differently, they were still not afforded the prescribed time
period to deliver the answering papers. This must have caused prejudice to the
respondents.
(7] The respondents could not complain about this prejudice, because the applicant
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was entitled to make his own rules where urgency was present. It means that a
respondent can only complain of the lack of urgency once the application serves before
a court eventually. This is precisely what happened in the present case.1
[8] In the premises, I am constrained to find that the question of urgency is still relevant
and alive at this point in time. This is so despite the fact that the parties have agreed that
the matter would be set down on the ordinary opposed motion roll. The court must
therefore now proceed to establish whether the applicant's deviation from the prescribed
time periods is commensurate with the degree of urgency claimed by the applicant.2
[9] Uniform Court Rule 6(12)(a) provides as follows: 'In urgent applications the court
or a judge may dispense with the forms and service provided for in these rules and may
dispose of such matter at such time and place and in such manner and in accordance
with such procedure (which shall as far as practicable be in terms of these rules) as it
deems fit.' Rule 6(12)(b) then provides that: "In every affidavit filed in support of any
application under paragraph (a) of this subrule, the applicant shall set forth explicitly the
circumstances which it is averred render the matter urgent and the reasons why the
applicant claims that applicant could not be afforded substantial redress at a hearing in
due course.'
[1 O] In its founding affidavit the applicant provides the following reasons for the alleged
urgency: Firstly, it says that the blatant unlawfulness of the actions by the police makes
this matter inherently urgent. Then follows this sentence: 'If the Honourable Court decides
that the warrant stands to be set aside the matter is urgent'. The urgency is therefore
conditional and will only become established once the court has decided in favour of the
applicant on the merits of the application. This approach by the applicant begs the
question why the application was then placed on the urgent roll at all.
question why the application was then placed on the urgent roll at all.
[11] Secondly, the applicant submits that it is a subsidiary of a JSE listed company and
is therefore subject to higher scrutiny. The reputation of the applicant is suffering as a
result of the allegations contained in a publication posted by the police on its website, it
1 See in this respect Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk
1972 (1) SA 773 (A) at 782 C-O.
2 Luna Meubel Vervaardigers (Edms) Bpk v Makin and Anothertla Makin's Furniture 1977 (4) SA 135 (vt--'.) at
137 A-F
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says. This is again followed by a condition: 'If the Honourable Court finds that the warrant
is unlawful, the applicant will also pray that the police be ordered to print a retraction of
the publication on its website.' It means that the retraction will only become urgent once
the court has found in favour of the applicant on the merits. If this is so, one can again
only wonder why the application was enrolled on the urgent roll in the first place, because
it was apparently done prematurely.
[12] Thirdly, the applicant contends that, 'considering the nearing recess', it will
continue to suffer irreparable harm, not only reputational but also in submission of new
tenders, if it had to follow the normal rules in relation to time and form. Here the applicant
is obviously referring to the police publication again. The publication itself must now be
considered to find whether there is any merit in the applicant's submissions in this regard.
[13] The publication refers to a search and seizure operation at the applicant's site
office between Sasolburg and Heilbron, which was prompted by allegations of fraud and
corruption during the bidding and appointment of a sub-contractor appointed by the
applicant. It then mentions that it was alleged that the successful bidder was not from
Heilbron or Sasolburg, that one of the directors of the successful bidder only became a
director after the company was appointed and that the company is not PSIRA compliant.
The publication ends stating that the matter was reported to the Hawks for investigation,
and that several documents were seized for further investigation after a search warrant
was obtained.
[14] It is clear that this publication nowhere states that the applicant was alleged to
have been complicit in the fraud and corruption. I have no doubt that any reasonable
person who reads the publication will understand that the investigations were aimed at
establishing whether the successful bidder had fraudulently misrepresented to the
establishing whether the successful bidder had fraudulently misrepresented to the
applicant the identity of its directors, the fact that it came from Heilbron or Sasolburg and
that it was PSIRA compliant. The complaint of reputational damage suffered by the
applicant, albeit conditional damage, must therefore fall away.
[15] Lastly, the applicant bluntly states that it will not get substantial redress in due
course. In its replying affidavit the applicant reiterates that the application is urgent, but
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that the urgency is no longer a point of contention due to the agreement to proceed on
the normal opposed motion roll.
[16) I do not agree. As shown earlier herein, the applicant has failed to establish any
urgency at all. Moreover, it has failed to show that the deviation from the prescribed time
periods was commensurate with the degree of urgency claimed. The agreement to move
the application to the normal opposed motion roll, also does not assist the applicant, since
there is no indication that the issue of urgency became abandoned by the parties by
agreeing as such. In addition, the answering affidavit still had to be drawn on truncated
time periods.
[17) In the normal course, the application therefore stands to be removed from the roll
with costs. Such a removal, however, will be contrary to the interests of justice, since the
applicant will then have to enrol the application again in circumstances where there has
already been a delay in the determination of the matter. In the matter of Commissioner,
South African Revenue Service v Hawker Air Services (Pty) LtcF the Supreme Court of
Appeal has stated in para 11 that 'lack of urgency will entitle a high court in the exercise
of its discretion to refuse to enrol a matter where the ordinary forms and procedures have
not been followed.' As indicated, in the present matter and in the exercise of my discretion,
I prefer not to remove the matter but rather to proceed to decide the merits of the
application so that finality can be reached.
[18) In its founding affidavit the applicant relies on a number of grounds for the relief it
seeks. The first ground is that the affidavit submitted by the second respondent to the
third respondent in support for the issue of a search and seizure warrant, is dated 2025
while the date stamp of the warrant shows that the warrant was already issued by the
third respondent in 2024. This ground has no merit. Although the date of the stamp is
third respondent in 2024. This ground has no merit. Although the date of the stamp is
indeed 2024, it is equally clear that the third respondent had changed the date in his own
handwriting to what appears to be 02/05/2025. The year 2024 on the stamp was obviously
an error.
3 Commissioner, South African Revenue Service v Hawker Air Services (Pty) Ltd (2006] ZASCA 51; 2006 (4)
SA 292 (SCA)
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[19] Secondly, it is alleged that crucial information was omitted by the second
respondent in his affidavit to the magistrate. The omitted information relates to the fact
that the applicant had already provided the police with documentary proof of the location
of the successful tenderer and its PSIRA registration. The applicant avers that, had the
third respondent known of these facts, he would possibly have denied the request for a
warrant. The irony is that these documents were not listed in the warrant for search, nor
were they seized by the police. The omission of these documents in the affidavit therefore
played no role whatsoever.
[20] Thirdly, the applicant laments the fact that the documents actually seized are not
listed in the warrant for seizure. Now, the warrant specifically provides that it is issued in
terms of s 21 , read with s 20 and Chapter 2 of the Criminal Procedure Act. While s 21
provides that there always has to be a search warrant before an object may be seized,
the section is subject to the provisions of s 22, 24 and 25. In terms of s 22, a police official
may, without a search warrant search any person or container or premises for the purpose
of seizing any article that is on reasonable grands believed to be concerned in the
commission of an offence. Section 22 forms part of Chapter 2 of the Criminal Procedure
Act. The warrant in the present matter leaves no doubt that the third respondent had
included the provisions of s 22 in the powers he had conferred on the police officials in
terms of Chapter 2. It is stipulated in the warrant that they are authorized and required to
seize the articles listed and to 'exercise any further powers and perform any further duties
in relation to such seized articles as are set out in Chapter 2 of the Criminal Procedure
Act'. The police officials were therefore duly authorized to seize articles and
documentation outside the ambit of the articles specifically listed in the warrant.
documentation outside the ambit of the articles specifically listed in the warrant.
[21] In the fourth place, the applicant avers that the warrant is overly broad. In the
preceding paragraph the court has already dealt with the question whether the police
officials were authorized to seize that were not specifically listed in the warrant. Nothing
therefore turns on this fourth ground for the relief sought.
[22] Lastly, the applicant alleges that the commissioning of the second respondent's
affidavit in support of the warrant was done by a person with an interest in the matter. It
is stated by the applicant that the affidavit was commissioned by Warrant Officer J S
Ndweni, who is one of the members who took part in the search and seizure operation at
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the premises of the applicant. This is obviously a reference to regulation 7(4) of the
Regulations Governing the Administering of an Oath or Affirmation, published in terms of
s 1 O of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963. Regulation
7(1) provides that a Comm issioner of Oaths shall not administer an oath or affirmation
relating to a matter in which he has an interest.
[23] It seems that the applicant has overlooked regulation 7(2) of the Regulations,
which provides that regulation 7(1) shall not apply to an affidavit or declaration men tioned
in the Schedule. In terms of the Schedule a declaration taken by a Commissioner of Oaths
who is not an attorney and whose only interest therein arises out of his employment and
in the course of his duty is exempt from the provisions of regulation 7(1). It appears that
W/0 Ndweni's interest in the matter arose from his employment and in the course of his
duty.
(24] It then follows that there is no merit in any of the grounds advanced by the applicant
for the relief it seeks in the notice of motion. The application must therefore fail. As for
costs, I can find no reason why costs should not follow the result.
[25) The following order is made:
The application is dismissed with costs, including the costs of two counsel where so
employed.
P J LOUBSER
JUDGE OF THE HIGH COURT
Appearances
For the Applicant:
Instructed by:
For the Respondents:
Assisted by:
Instructed by:
J J Buys
York Attorneys Inc, Noordhoek
Bloemfontein
N Snellenburg SC
K Motholo
State Attorney
Bloemfontein
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