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[2019] ZASCA 169
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Malherbe v S (1182/2018) [2019] ZASCA 169; 2020 (1) SACR 227 (SCA) (29 November 2019)
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THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1182/2018
In
the matter between:
NEIL
MALHERBE APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Malherbe v S
(1182/2018)
[2019] ZASCA 169
(29
November 2019)
Coram:
Wallis, Mbha and Mbatha JJA and Koen and Hughes AJJA
Heard
:
19 November 2019
Delivered:
29 November 2019
Summary:
Search warrant in terms of
s 21(1)
(a)
of the
Criminal
Procedure Act 51 of 1977
– must be issued on the basis of
information on oath – statement on basis of which warrant
issued not sworn –
warrant invalid – items seized under
warrant inadmissible – admissions made after warrant ruled to
be valid –
such compelled by the decision that the warrant was
valid – breach of fair trial rights in terms of s 35 of the
Constitution.
ORDER
On
appeal from:
Gauteng Divison of the High Court, Mpumulanga
Circuit Court (Mudau J and Roelofse AJ, sitting as a court of appeal
from the Regional
Court, Nelspruit):
The
appeal succeeds and the convictions and sentence are set aside,
including the order in terms of s 120(4) of the Children’s
Act
38 of 2005.
JUDGMENT
Mbatha
JA
(Wallis and Mbha JJA and Koen and Hughes AJJA concurring):
[1]
The appellant, Neil Malherbe, was arraigned in the Regional Court,
Nelspruit, Mpumalanga, on seven counts of contravening s
24B(1)
(a)
and one count of contravening s 24B(1)
(c)
of the Films and
Publication Act 65 of 1996 (the Act). Four of these counts related to
the possession of four films and one to the
importation of another
film. The sixth count related to his possession of a book, the
seventh to senteen images discovered on his
laptop and the last to
five images found on his notebook. Each of the films, the book and
the images were said to constitute depictions
of child pornography,
an expression that is broadly defined in s 1 of the Act. All of these
items had been seized pursuant to a
search warrant inrespect of Mr
Malherbe’s home issued by a magistrate, Mr Oosthuizen. Mr
Malherbe tendered a plea of not
guilty to all counts.
[2]
The trial commenced with a trial within a trial in which the
appellant challenged the validity of the search warrant. The trial
court ruled against the appellant by finding that the search warrant
was validly obtained. He thereafter made admissions in terms
of
s 220
of the
Criminal Procedure Act (CPA
) wherein he admitted being found
in possession of three images of child pornography in counts 3, 7 and
8, of which one was from
the movie ‘Barnens Ö: Children’s
Island’, purchased from an online company called Amazon. He was
convicted
of counts 3, 7 and 8 and was accordingly sentenced on 27
October 2017 to three months’ imprisonment in respect of each
count.
The sentences were wholly suspended for a period of 3 years on
condition that the appellant was not to be convicted of contravening
s 24B(1)(
a
) of the Act, during the period of the 3 years
suspension. The court, as it was obliged to do, made an order in
terms of s 120(4)
of the Children’s Act 38 of 2005, that the
appellant was found unsuitable to work with children and ordered his
name to be
entered into Part B of The National Child Protection
Register. In accordance with s 34 of the CPA, the images were
forfeited to
the state to be destroyed. The appellant’s
application for leave to appeal was dismissed. On petition in terms
of s 309 of
the CPA, he was granted leave to appeal against both the
conviction and sentence.
[3]
The appeal to the Gauteng Division of the High Court, sitting as the
Mpumalanga Circuit Court, against both the conviction and
sentence
failed. The high court set aside the sentence imposed by the regional
court and remitted the matter to the regional court
for
reconsideration of the sentence in the light of the comments made in
the judgment by the full bench. With special leave of
this court, the
appeal against both conviction and sentence serves before this court.
[4]
There were significant problems with Mr Malherbe’s conviction
on both count 3 and count 8. The former related to the possession
of
a film. It was unclear from the charge sheet whether he was in fact,
being charged with the possession of a film that had not
been rated
by the Film and Publication Board, a matter which no evidence was
presented. Furthermore, the conviction was not in
relation to the
film, but to a single image from the film. Count 8 was based on one
of two images found on his laptop, whereas
the charge sheet on that
count related to other images found on his notebook. The evidence did
not support a conviction on this
count. The two images from the
laptop could at best have supported the conviction on count 7, which
was based on images found on
his laptop. However, in view of the
conclusion I have reached on the validity of the search warrant, it
is unnecessary to consider
these issues any further. Nor is it
necessary to consider whether the definition of ‘child
pornography’ in the Act
can withstand constitutional scrutiny.
[5]
The
crisp issue was whether the trial court was correct in holding that
the search warrant issued in terms of s 20 and 21
[1]
of the CPA were valid. The appellant challenged the validity of the
search and seizure warrant at the outset of the trial. After
the
trial within the trial, the learned magistrate found that there was
substantial compliance with the provisions of s 20 and
21 of the CPA.
The appellant then made certain admissions in terms of s 220 and the
State closed its case without leading any further
evidence. Upon that
basis he was convicted and sentenced.
[6]
The
provisions of s 21(1)(
a
)
authorises magistrates and justices of peace to issue search warrant.
Furthermore, the application therefore must be made on the
basis of
information on oath. In
Thint
(Pty) Ltd v National Director of Public Prosecutions & Others;
Zuma & Another v National Director of Public Prosecutions
&
Others
[2]
the Constitutional Court held that certain jurisdictional factors
also need to be met ‘first, that there is a reasonable
suspicion that an offence, which might be a specified offence in
terms of the CPA, has been committed; and secondly, that there
are
reasonable grounds to believe that an item that has a bearing or
might have a bearing on the investigation is on or is suspected
to be
on the premises to be searched. Finally, the judicial officer must
consider whether it is appropriate to issue a search warrant’.
[7]
The fundamental problem in this case is that the trial court
misdirected itself by accepting Captain Swart’s statement
as a
sworn statement. In lieu of the oath, it merely recorded that ‘I
hereby certify that the deponent knows and understands
the contents
of this statement and that the deponent’s signature was placed
here in my presence on 2013.07.12 at 10:20 White
River’. This
breached the specific requirement of s 21(1)(
a
) of the CPA
that the information must be on oath and that there must be
reasonable grounds for believing that the item is in the
possession
or under the control of any person. Captain Swart testified that even
when he appeared before Mr Oosthuizen, no oath
was administered to
him. Mr Oosthuizen also confirmed that he did not administer the oath
nor did he make any further enquiries
from Captain Swart regarding
the information relied upon by the police.
[8]
The
law requires strict adherence to the requirements of s 21(1)(
a
)
of the CPA. This is clear from the authorities. A search warrant
issued on the basis of an unattested statement is invalid.
[3]
If the search warrant is issued on the basis of both a sworn
statement and an examination of the police docket containing unsworn
documents it is likewise invalid.
[4]
In similar vein, where evidence is required to be given under oath in
terms of s 162 of the CPA, the testimony of a witness who
has not
sworn to the truth of the evidence, or made a proper affirmation, or
been properly admonished to speak the truth, as provided
for in the
CPA ‘lacks the status and character of evidence and is
inadmissible’.
[5]
[9]
The magistrate should have held that the search warrant was issued
unlawfully and was invalid. On that basis none of the material
seized
under the warrant would have been admissible. It was the failure of
the trial court to declare the warrant invalid, which
induced the
appellant to make admissions in terms of s 220 of the CPA.
Furthermore, the admissions were insufficient to justify
a
conviction. They were an admission that there were three images, one
taken from the movie, ‘Barnens Ö: Children’s
Island’, and the two others downloaded from the internet to the
appellant’s laptop. It was admitted without reference
to the
Act, or the definition of this expression, that these three images
displayed scenes amounting to child pornography of persons
under the
age of 18 years. The latter was at best for the prosecution an
admission of a matter of law. In addition, those admissions
did not
show that the appellant had the requisite
mens rea
, which
entails knowledge of possession and of unlawfulness of his
possession.
[10]
Section 35(5) of the Constitution provides that evidence obtained in
a manner that violates the Bill of Rights must be excluded
if the
admission of that evidence would render the trial unfair or otherwise
be detrimental to the administration of justice. In
this case there
can be no doubt that the decision that the search warrant was valid
and that the items seized from Mr Malherbe’s
home were lawfully
seized compelled the making of the admissions. Therefore, the
evidence obtained through the invalid search warrant
rendered the
trial unfair and should have been excluded. Anything done pursuant
thereto was unlawful.
[11]
The appeal succeeds and the convictions and sentence are set aside,
including the order in terms of s 120(4) of the Children’s
Act
38 of 2005.
__________________
Y
T Mbatha
Judge
of Appeal
Appearances
For
the Appellants: M R Hellens SC (with him N Ferreira)
Instructed
by:
Richard
Spoor Inc. Attorneys, White River
Webbers
Attorneys, Bloemfontein
For
the Respondent: A I S Poodhun
Instructed
by:
Director
of Public Prosecutions, Mbombela
[1]
Section 20: 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.
Section
21: (1) Subject to the provisions of sections 22, 24 and 25, an
article referred to in section 20 shall be seized only
by virtue of
a search warrant issued –
(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.
(2)
A search warrant issued under subsection (1) shall require a police
official to seize the article in question and shall to
that end
authorize such police official to search any person identified in
the warrant, or to enter and search any premises identified
in the
warrant and to search any person found on or at such premises.
(3)
(a) A search warrant shall be executed by day, unless the person
issuing the warrant in writing authorizes the execution thereof
by
night.
(b)
A search warrant may be issued on any day and shall be of force
until it is available, by a person with like authority.
(4)
A police official executing a warrant under this section or section
25 shall, after such execution, upon demand of any person
whose
rights in respect of any search or article seized under the warrant
have been affected, hand to him a copy of the warrant.
[2]
Thint (Pty) Ltd v National Director of Public Prosecutions &
Others; Zuma & Another v National Director of Public
Prosecutions
& Others
[2008] ZACC 13
;
2008 (2) SACR 421
(CC);
2009 (1) SA 1
(CC);
2008 (12) BCLR 1197
(CC) para 85.
[3]
Tioch v The Magistrate, Riversdale and others [2007] 4 All SA 1064
(C).
[4]
Naidoo and another v Minister of Law and Order and another
1990 (2)
SA 158
(W) at 160B-H.
[5]
S v Matshivha
[2013] ZASCA 124
(SCA) para 10;
2014 (1) SACR 29
(SCA); S v Naidoo
1962 (2) SA 625
(A).