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[2011] ZACC 19
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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)
Links to summary
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 90/10
[2011]
ZACC 19
In
the matter between:
MINISTER
FOR SAFETY AND
SECURITY
…..............................................................
Applicant
and
GARY
WALTER VAN DER
MERWE
…..........................................................
First
Respondent
MONIQUE
VAN DER
MERWE
…................................................................
Second
Respondent
FERN
CAMERON (formerly VAN DER
MERWE)
…....................................
Third
Respondent
ALAN
RAYMOND
FANAROFF
….................................................................
Fourth
Respondent
TANTCO
GLOBAL (PTY)
LTD
….....................................................................
Fifth
Respondent
EXECUTIVE
HELICOPTERS (PTY) LTD
…...................................................
Sixth
Respondent
EXEL
AVIATION (PTY) LTD (formerly
AIRCRAFT
SUPPORT (PTY)
LTD)
….........................................................
Seventh
Respondent
MADIBA
AIR AND SEA (PTY)
LTD
….........................................................
Eighth
Respondent
HELICOPTER
AND MARINE SERVICES (PTY) LTD
….............................
Ninth
Respondent
ZONNEKUS
MANSIONS (PTY)
LTD
…........................................................
Tenth
Respondent
SUMMER
DAZE TRADING 712 (PTY)
LTD
….......................................
Eleventh
Respondent
WESTSIDE
TRADING (PTY)
LTD
…..........................................................
Twelfth
Respondent
SA
BARTER (PTY)
LTD
….......................................................................
Thirteenth
Respondent
TWO
OCEANS AVIATION (PTY)
LTD
…..............................................
Fourteenth
Respondent
HELIBASE
(PTY)
LTD
…............................................................................
Fifteenth
Respondent
Heard
on : 3 March 2011
Decided
on : 7 June 2011
JUDGMENT
MOGOENG
J:
Introduction
The
main question in this application for leave to appeal is whether
search and seizure warrants are valid despite their failure
to
mention the offences to which the search relates. The answer
depends on whether the common law intelligibility principle,
properly understood, requires that the offence be specified in the
search and seizure warrants issued in terms of section 21
of the
Criminal Procedure Act
1
(CPA).
Parties
The
applicant is the Minister for Police (Minister).
2
The first respondent is Mr Gary Walter van der Merwe. He is the
general manager of the sixth and tenth respondents and a
director
of the eighth, ninth, thirteenth and fifteenth respondents. The
second and third respondents are his wife and mother
respectively.
The fourth respondent is a director of some of the respondent
companies and the fifth to fifteenth respondents
are companies in
which the first respondent has a financial interest.
Factual
background
The
Criminal Investigations Unit of the South African Revenue Service
(SARS) suspected some of the respondents of having committed
financial irregularities and of involvement in criminal activities.
In collaboration with the Director of Public Prosecutions
for the
Western Cape Province, SARS caused the Commercial Branch of the
South African Police Service (SAPS) to investigate
possible
violations of the Income Tax Act,
3
fraudulent claims in contravention of the Value-Added Tax Act,
4
and money laundering in violation of the Prevention of Organised
Crime Act.
5
Superintendent
Kotze was assigned the case for investigation. When the need arose
for search and seizure operations to be conducted
at the premises
linked to the respondents, Superintendent Kotze and employees of
SARS deposed to affidavits in support of the
issuing of the search
and seizure warrants in terms of section 21 read with section 20 of
the CPA.
6
Armed
with these affidavits, which set out the offences which the
respondents were suspected of having committed, Superintendent
Kotze successfully approached a magistrate at the Magistrates’
Court, Cape Town for the issuing of three warrants. The
first was
for the Zonnekus home of the first respondent, which he shares with
his wife and mother, the second for the business
premises of
various respondents at Helibase and the third for the residential
premises of the fourth respondent at Royal Ascot.
These warrants
are at times collectively referred to as the Cape Town warrants.
The
fourth and fifth warrants were issued by magistrates who serve in
courts which have jurisdiction over the Bellville and
Randburg
premises of Carrim, Maritz and Associates, the accountants for a
number of the respondents. Since the validity of
these warrants
does not fall for determination in this Court, nothing more need be
said about them.
The
Cape Town warrants were, but for the naming of the person and the
description of the property to be searched, phrased in
identical
terms. Each was titled “Search Warrant [Section 20, 21
and/or 25 of the Criminal Procedure Act, (Act 51 of
1977)]”
and had three identical annexures. Annexure A consisted of the
names of individuals who were authorised to conduct
the search.
Annexure B specified the articles that could be seized during the
investigation. This annexure set out 18 items.
Items numbered 13,
16, 17 and 18 allowed for the seizure of articles relevant to the
investigation. Annexure C authorised
the seizure and duplication
of electronic devices which had a bearing on the investigation.
The warrants and their annexures
were made available to persons
present at the Zonnekus, Helibase and Royal Ascot properties prior
to the commencement of the
search.
Importantly,
neither the warrants nor their annexures specified the offences
under investigation. Nor did they describe the
nature of the
investigation.
Members
of SAPS and SARS conducted the search and seizure operations in
terms of the warrants and removed several items from
the targeted
premises.
Proceedings
in the High Court
The
respondents were displeased with these operations. Consequently,
they approached the Western Cape High Court, Cape Town
7
(High Court) to challenge the validity of the warrants on the
following grounds:
the
suspected offences were not stipulated in the warrants; and
the
magistrates failed to apply their minds to the applications for the
warrants and this rendered them fatally defective in
law.
In
relation to the first ground, the High Court observed that the
Constitution requires the specification of the offence in
a
warrant. Relying on
Magajane
,
8
it further said that a person’s privacy may be impaired by a
warrant only in the least intrusive manner and on justifiable
grounds. In that case this Court stated:
“
Exceptions
to the warrant requirement should not become the rule. A warrant is
not a mere formality. It is the method tried
and tested in our
criminal procedure to defend the individual against the power of the
state, ensuring that police cannot invade
private homes and
businesses upon a whim, or to terrorise. Open democratic societies
elsewhere in the world have fashioned the
warrant as the mechanism
to balance the public interest in combating crime with the
individual’s right to privacy. The
warrant guarantees that
the State must justify and support intrusions upon individuals’
privacy under oath before a neutral
officer of the court prior to
the intrusion. It furthermore governs the time, place and scope of
the search, limiting the privacy
intrusion, guiding the State in the
conduct of the inspection and informing the subject of the legality
and limits of the search.
Our history provides much evidence for
the need to adhere strictly to the warrant requirement.”
9
(Footnote omitted.)
The
High Court did not follow the majority decision in
Pullen
10
which rejected the requirement that the offence has to be mentioned
in a warrant for it to be valid. Instead it relied on
Hertzfelder
11
and the minority in
Pullen
for the conclusion that the
warrant would be invalid if the offence were not stipulated in it.
Powell
12
was also relied on in support of this conclusion. Based on these
cases, the Court declared the three Cape Town warrants invalid
and
set them aside on the ground that they did not stipulate the
offence.
13
The
challenge to the validity of the Randburg warrant was not
entertained for want of jurisdiction, whereas the validity of
the
Bellville warrant was attacked on the basis that it was overbroad.
14
The Court found no merit in that challenge and dismissed it.
The
assertion that the magistrates failed to apply their minds to the
application was also found to be without merit.
Since
the respondents had attained substantial success, the High Court
made a costs order in their favour. The Minister took
the matter
on appeal to the Supreme Court of Appeal and the respondents
cross-appealed the decision relating to the Bellville
warrant, with
leave of the High Court.
Proceedings
in the Supreme Court of Appeal
The
Supreme Court of Appeal upheld the decision of the High Court in
respect of the Cape Town search warrants. Nevertheless,
it
rejected the High Court’s reliance on
Hertzfelder
for
the proposition that intelligibility requires the specification of
the offence. The reason advanced for the rejection
was that the
warrant in
Hertzfelder
was set aside because of its vague
description of the articles to be seized. The Court also held that
Powell
is not authority for the offence-specification
requirement because the warrant in
Powell
was set aside for
its overbreadth.
Despite its observation that this issue
was not before this Court in
Thint
15
when it pronounced itself on this requirement, the Court did rely
on
Thint
16
as authority for its conclusion that a warrant should specify the
offence.
In
dealing with the cross-appeal, a useful distinction was drawn
between vagueness and overbreadth in the following terms:
“
Questions
that arise in relation to [whether a warrant authorises more than is
permitted by statute] will generally fall into
either of two
different categories. The first is whether the warrant is
sufficiently clear as to the acts that it permits.
For where the
warrant is vague it follows that it will not be possible to
demonstrate that it goes no further than is permitted
by the
statute. If a warrant is clear in its terms a second, and
different, question might arise, which is whether the acts
that it
permits go beyond what is permitted by the statute. If it does then
the warrant is often said to be ‘overbroad’
and will be
invalid so far as it purports to authorise acts in excess of what
the statute permits. A warrant that is overbroad
might, depending
upon the extent of its invalidity, be set aside in whole, or the bad
might be severed from the good.”
17
The
Court then concluded that the Bellville warrant was neither vague
nor overbroad.
18
For
these reasons, the appeal and cross-appeal were dismissed with
costs. Dissatisfied with the decision of the Supreme Court
of
Appeal, the Minister approached this Court for leave to appeal on
the grounds set out below.
Issues
The
preliminary issue to be determined is the application for leave to
appeal and the main issue is the alleged invalidity of
the search
warrants. Several subsidiary questions flow from the main issue
and they are whether:
the
common law intelligibility principle requires that the offence be
specified in a warrant issued in terms of section 21 of
the CPA;
the
search warrants are vague or overbroad;
the
order of invalidity should apply retrospectively in the event of
the warrants being declared invalid; and
any
party should be held liable for costs?
I
deal first with the application for leave to appeal.
Application
for leave to appeal
Two
questions must be answered in the affirmative before an application
for leave to appeal to this Court may be granted. They
are whether
the application raises a constitutional issue and whether it is in
the interests of justice to grant leave to appeal.
The interests
of justice entail, in addition to other factors, the public
interest in deciding the matter, the importance
of the
constitutional issue raised and the prospects of success.
Search
and seizure warrants by their very nature implicate at least two
constitutional rights, namely the rights to dignity
and privacy.
19
It follows therefore that constitutional issues of significance
arise in this matter. Added to this is a long history of
legal
uncertainty about whether it is a requirement for the validity of a
CPA search and seizure warrant that the offence,
to which the
search relates, be mentioned in the warrant.
20
This uncertainty cries out for a definitive and authoritative
pronouncement on the issue.
21
In
addition, the Minister has an arguable case since neither
Powell
nor
Thint
turned on the stipulation of the offence in the
warrant as a requirement for the validity of a warrant. Both were
decided
on the overbreadth of the warrant.
There
are further considerations weighing in favour of granting leave.
First, important constitutional issues are raised.
Second, more
than eighty years of legal uncertainty about whether failure to
stipulate the offence in a warrant issued in terms
of the CPA
22
is fatal to its validity requires clarification. Third, there are
reasonable prospects of success. Leave will thus be granted.
Having crossed this hurdle, I will now deal briefly with the
history of search and seizure warrants.
The
history of search and seizure warrants
Section
49
23
of the 1917 CPA
24
empowered a magistrate, justice of the peace or judge to issue a
search warrant. This section, which foreshadowed sections
20 and
21 of the CPA, was given conflicting interpretations in relation to
whether the stipulation of an offence in a warrant
is a requirement
for the validity of a warrant.
Hertzfelder
25
was generally regarded as the first reported case to set aside a
warrant on the ground that it was unintelligible owing to,
amongst
others, its failure to specify the offence.
The
significance of the history of search and seizure warrants is that
even as early as 1907
26
to 1919,
27
the courts and the authorities vested with the power to issue
search warrants were alive to the need to specify the offence
to
which the search related.
28
The need to do so finds direct support from the decision of the
minority and indirect support from that of the majority in
Pullen
.
Pullen
sheds light on the specification of the offence in a warrant as a
possible requirement for the common law intelligibility principle.
In that case the validity of the warrant was challenged before a
single judge. The Court held that a search warrant must
set out
with reasonable particularity the offence which underlies the
search and the article the police officer is directed
to search for
and seize. That requirement was reversed on appeal on the basis
that the 1917 CPA equivalent of sections 20
and 21 of the CPA did
not require the specification of the offence in the warrant.
Relevant
to the determination of the main issue in this matter is the
appreciation by the majority that: (i) it is desirable
that a
search warrant specifies the offence; (ii) if a satisfactory reason
were to be found for holding that the Court has
the power to lay
down a rule which renders the mention of the offence essential to
the validity of a search warrant, the Court
would happily lay down
that rule; (iii) for obvious reasons it is desirable that the owner
of the searched premises should
know the reason why her premises
ought to be so invaded; (iv) officials issuing warrants would be
well advised to use forms
which mention the offence in every case;
and (v) in a case where the article to be searched for is specified
or clearly described
in the warrant there would be no need to refer
to the offence.
29
In
a minority judgment,
it was held that a search warrant is
invalid if it makes no reference to a specific crime or specific
crimes.
30
Powell
is the next enlightening case on this subject. Cameron JA
discussed a number of very helpful authorities on warrants.
Although the case was decided on overbreadth, when the learned
Judge was addressing the validity of the warrant he did allude
to
the warrant’s failure to specify the crime or irregularity.
31
He then distilled the following principles from the authorities:
“
(a) Because
of the great danger of misuse in the exercise of authority under
search warrants, the courts examine their validity
with a jealous
regard for the liberty of the subject and his or her rights to
privacy and property.
(b) This
applies to both the authority under which a warrant is issued, and
the ambit of its terms.
The
terms of a search warrant must be construed with reasonable
strictness. Ordinarily there is no reason why it should be
read
otherwise than in the terms in which it is expressed.
A
warrant must convey intelligibly to both searcher and searched the
ambit of the search it authorises.
If
a warrant is too general, or if its terms go beyond those the
authorising statute permits, the Courts will refuse to recognise
it
as valid, and it will be set aside.
It
is no cure for an overbroad warrant to say that the subject of the
search knew or ought to have known what was being looked
for: The
warrant must itself specify its object, and must do so intelligibly
and narrowly within the bounds of the empowering
statute.”
32
These
principles were approved by this Court in
Thint
.
33
The
relevance of the approach elucidated in
Powell
and approved
in
Thint
is that the specification of the offence in the
warrant facilitates intelligibility, while its absence hinders it.
Parties’
submissions
The
Minister contends that the
Thint
decision, which made it a
requirement that a warrant issued in terms of section 29 of the
National Prosecuting Authority Act
34
(NPA Act) should stipulate the offence for it to be valid, does not
apply since it was based on the specific wording of that
section
read contextually. He bases this on the words “specified
offence”
35
in this section coupled with the searched person’s
entitlement to a copy of the warrant before the commencement of the
search. He argues that the obligation to give a copy to the
searched person before the commencement of the search is designed
to enable the searched person to satisfy herself, prior to the
search, that the warrant does relate to a “specified offence”
and does not exceed the bounds of the limited investigative
authority contemplated by section 29 of the NPA Act. He further
submits that these considerations do not arise to justify the
stipulation of the offence in the CPA warrant, contended for
by the
respondents, since there is no reference to a specified offence in
section 21 of the CPA and the searched person is
entitled to a copy
of the warrant only after the search has been completed.
36
To
distinguish
Thint
from this case, the Minister also cites
the complexity, seriousness and specialised nature of the crimes
investigated in terms
of the NPA Act, as opposed to those
investigated in terms of the CPA.
In
response, the respondents contend that the Minister’s
submissions are ill-conceived and that the warrants are invalid
as
a result of their failure to mention the offence and their
overbreadth.
This
Court has not considered a challenge to the validity of the
warrants issued in terms of sections 20 and 21 before. It
is
therefore a necessary and fruitful exercise to give an overview of
these warrants before the intelligibility principle is
discussed in
relation to these provisions.
An
overview of the search and seizure warrants
All
law-abiding citizens of this country are deeply concerned about the
scourge of crime. In order to address this problem
effectively,
every lawful means must be employed to enhance the capacity of the
police to root out crime or at least reduce
it significantly.
Warrants issued in terms of section 21 of the CPA are important
weapons designed to help the police to carry
out efficiently their
constitutional mandate of, amongst others, preventing, combating,
and investigating crime.
37
In the course of employing this tool, they inevitably interfere
with the equally important constitutional rights of individuals
38
who are targeted by these warrants.
Safeguards
are therefore necessary to ameliorate the effect of this
interference. This they do by limiting the extent to which
rights
are impaired.
39
That limitation may in turn be achieved by specifying a procedure
for the issuing of warrants and by reducing the potential
for abuse
in their execution
.
Safeguards also ensure
that the power to issue and execute warrants is exercised within
the confines of the authorising legislation
and the Constitution.
These
safeguards are: first, the significance of vesting the authority to
issue warrants in judicial officers; second, the jurisdictional
requirements for issuing warrants; third, the ambit of the terms of
the warrants; and fourth, the bases on which a court may
set
warrants aside.
40
It is fitting to discuss the significance of the issuing authority
first.
Sections
20 and 21 of the CPA give authority to judicial officers to issue
search and seizure warrants.
41
The judicious exercise of this power by them enhances protection
against unnecessary infringement. They possess qualities
and
skills essential for the proper exercise of this power, like
independence and the ability to evaluate relevant information
so as
to make an informed decision.
42
Secondly,
the section requires that the decision to issue a warrant be made
only if the affidavit in support of the application
contains the
following objective jurisdictional facts: (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 the offence may be found on the premises
or persons intended
to be searched.
43
Both jurisdictional facts play a critical role in ensuring that
the rights of a searched person are not lightly interfered
with.
When even one of them is missing that should spell doom to the
application for a warrant.
The
third safeguard relates to the terms of a warrant. They should not
be too general. To achieve this, the scope of the search
must be
defined with adequate particularity to avoid vagueness or
overbreadth.
44
The search and seizure operation must thus be confined to those
premises and articles which have a bearing on the offence
under
investigation.
The
last safeguard comprises the grounds on which an aggrieved searched
person may rely in a court challenge to the validity
of a warrant.
The challenge could be based
45
on vagueness, overbreadth or the absence of jurisdictional facts
that are foundational to the issuing of a warrant.
46
A
discussion of these safeguards highlights the centrality of the
offence in the issuing of the warrant and sets the stage for
the
analysis of the intelligibility principle.
The
intelligibility principle
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.
The
core issue is whether the warrant would be reasonably capable of
that clear understanding even if the offence were not mentioned
in
it. Put differently, does the intelligibility principle require
the specification of the offence in the section 21 warrant
for its
validity?
Innes
CJ appears to have been the first to allude to the specification of
the crime in the warrant as an integral part of the
common law
intelligibility requirement. He did so by declaring a warrant
invalid and setting it aside as a result of, amongst
others, its
failure to state the offence.
47
As indicated above, this principle was subsequently reversed by
the majority in
Pullen
.
48
In
reasoning its way to that reversal, the majority articulated the
ideal role of the offence-specification requirement in facilitating
the intelligibility of a warrant.
49
The minority’s endorsement of the principle that the
specification of the offence in the warrant is a requirement for
its validity is also significant.
50
This is relevant to the determination of the main issue and also
sheds light on the soundness of the dictum in
Thint
.
51
What was merely desirable or advisable at the time has since been
accepted as law in
Thint
.
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.
52
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.
53
Thint
laid down the offence-specification requirement for the
intelligibility of the NPA Act warrant. It did so in the following
terms:
“
A
section 29 warrant should state at least the following, in a manner
that is reasonably intelligible without recourse to external
sources
of information: the statutory provision in terms whereof it is
issued; to whom it is addressed; the powers it confers
upon the
addressee;
the suspected offences that are under investigation
;
the premises to be searched; and the classes of items that are
reasonably suspected to be on or in that premises. It may therefore
be said that the warrant should itself define the scope of the
investigation and authorised search in a reasonably intelligible
manner.”
54
(Emphasis added.)
In
contending that
Thint
did not govern the CPA, the Minister
referred to the observation by Langa CJ that the intelligibility
principle lacks precision
and that it had to be given content to
determine what it requires specifically in relation to warrants
issued under section
29 of the NPA Act.
55
Thint
imposed the offence-specification requirement as an integral part
of the intelligibility principle in relation to the NPA Act.
The
question is whether that requirement applies also to the CPA. I
find that it does.
I
can see no material difference between these pieces of legislation
to explain why these aspects of the intelligibility principle
cannot apply with equal force to warrants issued in terms of the
CPA. Under either Act, a searched person ought to enjoy the
same
constitutional protection in relation to search and seizure
warrants and both Acts are open to a construction that permits
this
to be done. As Nugent JA correctly pointed out:
“
[T]he
requirement that the offence must be specified was laid down
unequivocally and without qualification in
Thint
in the
context of the intelligibility of the warrant, and in that respect I
see no material distinction between a warrant that
is issued under
that statute and a warrant that is issued under the Criminal
Procedure Act.”
56
The
intelligibility requirement has its roots in the rule of law which
is a founding value of our Constitution.
57
Some of the essential attributes of the rule of law are
comprehensibility, accountability and predictability in the
exercise
of all power, including the power to issue warrants. It
is essential therefore that the warrant be crafted in a way that
enables
the person on the receiving end of the exercise of this
authority to know why her rights have to be interfered with in the
manner authorised by the warrant. A warrant can thus not be
reasonably intelligible if the empowering legislation and the
offence are not stated in it.
58
It
is also consistent with both common sense and logic that the
searched person’s knowledge of the purpose or the reason
for
the search would enhance intelligibility and that its omission
would reduce it. It follows that the baseline requirement
for
intelligibility in relation to a CPA warrant is that the offence
must be mentioned.
The
principle of intelligibility requires that, even in the case of a
CPA warrant, “the person whose premises are being
invaded
should know the reason why”.
59
As Tindall J correctly observed, “the arguments in favour of
the desirability of such a practice are obvious.”
60
Thint
is authority for the proposition that the common law
intelligibility principle requires warrants issued in terms of
section
21 of the CPA to specify the offence.
What
emerges from this analysis is that a valid warrant is one that, in
a reasonably intelligible manner:
states
the statutory provision in terms of which it is issued;
identifies
the searcher;
clearly
mentions the authority it confers upon the searcher;
identifies
the person, container or premises to be searched;
describes
the article to be searched for and seized, with sufficient
particularity; and
specifies
the offence
61
which triggered the criminal investigation and names the suspected
offender.
In
addition, the guidelines to be observed by a court considering the
validity of the warrants include the following:
62
the
person issuing the warrant must have authority and jurisdiction;
the
person authorising the warrant must satisfy herself that the
affidavit contains sufficient information on the existence
of the
jurisdictional facts;
63
the
terms of the warrant must be neither vague nor overbroad;
64
a
warrant must be reasonably intelligible to both the searcher and
the searched person;
the
court must always consider the validity of the warrants with a
jealous regard for the searched person’s constitutional
rights; and
the
terms of the warrant must be construed with reasonable strictness.
Based
on the elements of the intelligibility requirement
65
and the approach to adopt in considering the validity of the
warrants
66
the Minister’s contentions must fail, for none of the Cape
Town warrants mentioned the offence. This conclusion obviates
the
need to address the question of vagueness or overbreadth.
Retrospectivity
The
question arises whether or not the order declaring the warrants
invalid should operate retrospectively. In support of his
contention that it should not, the Minister said there are many CPA
warrants in the criminal justice system which fall foul
of the
offence-specification requirement. He added that a retrospective
operation of the order would prejudice the criminal
justice system.
The respondents opposed this submission on the basis that the
declaration of invalidity contended for would
apply only to the
impugned warrants since no legislation or conduct is required to be
declared constitutionally invalid. They
also contend that any
other warrant which suffers from the same defect as the warrants in
this matter would remain valid until
otherwise declared invalid by
a court of law. A resolution of these opposing positions depends
on what a just and equitable
order is in the circumstances.
The
constitutional validity of section 21 was not challenged. I am
instead considering a remedy flowing from the declaration
of
invalidity of search and seizure warrants owing to their failure to
comply with the offence-specification requirement.
Since neither a
section nor any conduct was declared invalid, the provisions of
section 172(1)(a)
67
of the Constitution do not apply. This however is no impediment to
crafting a remedy envisaged by section 172(1)(b).
68
As Moseneke DCJ pointed out:
“
It
is clear that section 172(1)(b) confers wide remedial powers on a
competent court adjudicating a constitutional matter. The
remedial
power envisaged in section 172(1)(b) is not only available when a
court makes an order of constitutional invalidity
of a law or
conduct under section 172(1)(a). A just and equitable order may be
made even in instances where the outcome of a
constitutional dispute
does not hinge on constitutional invalidity of legislation or
conduct.”
69
What
then is a just and equitable order to make? The order invalidating
the impugned warrants applies only to those warrants.
Any attempt
to define
preemptively
situations to
which the order applies or to extend its applicability to all
defective warrants might give rise to undesirable
consequences.
The order we grant should thus be structured in a way that avoids
unnecessary dislocation and uncertainty in
the criminal justice
process.
70
The least disruptive way of giving relief to persons affected by
warrants that fall foul of the offence-specification requirement
is
through the established court structures.
71
A
just and equitable order to be made is therefore one that allows
effective judicial control to be exercised
72
over all challenges to the validity of warrants other than those
that were declared invalid in this matter. When courts have
control they would then deal with matters on a case by case basis
having regard to the interests of justice.
73
Costs
The
Minister is the unsuccessful party. He should therefore be ordered
to pay the respondents’ costs including costs
occasioned by
the employment of two counsel.
Order
In
the result the following order is made:
Leave
to appeal is granted.
The
appeal is dismissed with costs including the costs of two counsel.
Ngcobo
CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Mthiyane AJ, Nkabinde J, Van der Westhuizen J and Yacoob
J concur
in the judgment of Mogoeng J.
For
the Applicant:
Adv
RF van Rooyen SC, Adv A Erasmus and Adv G Goosen instructed by the
State Attorney.
For
the Respondents:
Adv
A Katz SC and Adv N Lewis instructed by Cornel Stander Attorneys.
1
51 of 1977.
2
The Minister for Police was formerly called the Minister for Safety
and Security.
3
58 of 1962.
4
89 of 1991.
5
121 of 1998.
6
Section 20 of the CPA provides:
“
The State
may, in accordance with the provisions of this Chapter, seize
anything (in this Chapter referred to as an article)—
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;
which may afford
evidence of the commission or suspected commission of an offence
whether within the Republic or elsewhere;
or
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 provides, in part:
“
(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
sear
ch
warrant issued—
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
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 of 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 identi
fied
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.”
7
Van der Merwe and Others v Additional Magistrate, Cape Town and
Others
2010 (1) SACR 470
(C).
8
Magajane v Chairperson, North West Gambling Board
and
Others
[2006] ZACC 8
;
2006 (5) SA 250
(CC);
2006 (10) BCLR 1133
(CC). (The correct spelling of this name is Mogajane.)
9
Id at para 74.
10
Pullen, N.O., Bartman, N.O. &
Orr, N.O. v Waja.
1929 TPD 838.
11
Hertzfelder v Attorney-General
.
1907 TS 403.
12
Powell NO and Others v Van der Merwe NO and
Others
2005 (5) SA 62
(SCA);
2005 (1)
SACR 371
(SCA).
13
It quoted this Court’s decision in
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)
extensively, although it does not seem to have relied on it for the
conclusion that the omission of the offence is fatal
to the validity
of the warrant.
14
See [17] below for the meaning of vague and overbroad. It follows
from that meaning that the terminology that the High Court
ought to
have used is vagueness instead of overbreadth.
15
Minister of Safety and Security v Van der Merwe
[2011] 1 All
SA 260
(SCA);
2011 (1) SACR 211
(SCA) (
Van der
Merwe SCA
) at paras 28 and 33.
16
Thint
above n 13
at para 159 quoted below at
[48]
.
17
Van der Merwe SCA
above
n 15 at para 14.
18
The Court held that this was so as there was no difficulty in
establishing the ambit of the search if the warrant and the
annexures
thereto were read together.
19
The right to dignity (section 10) and the right
to privacy (section 14).
20
This has been the case since
Hertzfelder
was decided in 1907
and
Pullen
in 1928.
See also the
discussion of the legal history commencing at
[24]
below.
21
Compare
Hertzfelder
,
Pullen
and
Powell
.
22
This includes the Criminal Procedure and Evidence Act 31 of 1917
(1917 CPA) and the Criminal Procedure Act 56 of 1955 (1955 CPA).
23
Section 49 of the 1917 CPA provides:
“
(1) If it
appears to a judge of a superior court, a magistrate or a justice on
complaint made on oath that there are reasonable
grounds for
suspecting that there is upon any premises within his jurisdiction—
(a) stolen property
or anything with respect to which any offence has been, or is
suspected on reasonable grounds to have been,
committed; or
(b) anything as to
which there are reasonable grounds for believing that it will afford
evidence as to the commission of any such
offence; or
anything as to
which there are reasonable grounds for believing that it is
intended to be used for the purpose of committing
any such offence,
he may issue his
warrant directing a policeman or policemen named therein or all
policemen to search such premises and to seize
any such thing if
found, and to take it before a magistrate to be dealt with according
to law.
(2) Any such
warrant shall be executed by day, unless the judge, magistrate or
justice, by the warrant, specially authorizes it
to be executed by
night in which case it may be so executed. Such warrant may be
issued and executed on Sunday as on any other
day.”
24
The provisions of the 1955 CPA were not materially different from
those of section 49 of the 1917 CPA.
25
The warrant in
Hertzfelder
was issued in terms of section 45
of Ordinance 1 of 1903 which was similar to section 49 of the 1917
CPA.
26
1907 is when
Hertzfelder
was decided.
27
See
Seccombe and Others v Attorney-General and Others
.
1919 TPD 270
at 276-7, where the offence was specified in the
warrant.
28
Id.
29
Pullen
above n
10 at 849-50
held:
“
It seems to
me highly desirable that a search-warrant ought to mention the
alleged offence, and if I could find a satisfactory
reason for
holding that this Court has the power to lay down that mention of
the offence is essential to the validity of a search
warrant I
should willingly lay down such a rule. It is desirable that the
person whose premises are being invaded should know
the reason why;
the arguments in favour of the desirability of such a practice are
obvious. But in my opinion there is nothing
in section 49 which
justifies the Court in laying down such a rule.
. . . .
I have come to the
conclusion, therefore, that the absence of mention of the offence in
the warrant is not fatal to its validity;
I think a search-warrant
is valid if it either describes the specific thing or things to be
searched for or identifies them,
as in the
Seccombe’s
case, by reference to the offence. Further than that I do not think
the Court would be justified in going. . . . At the same
time I
think that, in the absence of the forms prescribed by rules of
Court, officers issuing warrants would be well advised
to use forms
mentioning the offence in every case rather than continue the
undesirable practice of adapting to every case the
old form used for
the search of stolen goods by eliminating certain words in the form.
The conclusion I
have arrived at makes no inroad on the doctrine that a warrant must
not be in general terms, but it does conflict
with the decision in
Hertzfelder’s
case . . . . In that case, however,
counsel for the respondent admitted that the warrant was invalid and
the question was not
argued.”
30
Pullen
above n
10 at 861-4. The
minority relied on
Hertzfelder
.
31
This appears from the repeated reference to the failure to mention
the offence in the warrant in
Powell
above n 12 at paras 45 and 60. That is probably why the
High Court relied on
Powell
as an authority for its answer to the core question before this
Court.
32
Powell
above n
12 at para 59.
33
Thint
above n 13
at paras 88 and 137.
34
32 of 1998.
35
Section 29 of the NPA Act does not make reference
to the specification of the offence in the warrant. However,
section 29(5) reads:
“
A warrant
contemplated in subsection (4) may only be issued if it appears to
the magistrate, regional magistrate or judge from
information on
oath or affirmation, stating—
(a)
the
nature of the
investigation
in terms of section 28;
(b)
that
there exists a reasonable suspicion that an offence, which might be
a
specified offence
,
has been or is being committed, or that an attempt was or had been
made to commit such an offence; and
(c)
the
need, in regard to the
investigation
,
for a sea
rch and seizure in terms of this
section,
that there are
reasonable grounds for believing that anything referred to in
subsection (1) is on or in such premises or suspected
to be on or in
such premises.”
36
Section 21(4) of the CPA reads as follows:
“
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.”
37
Section 205(3) of the Constitution.
38
The right to dignity (section 10) and the right
to privacy (section 14).
39
Investigating Directorate: Serious Economic
Offences and Others v H
yundai Motor
Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000]
ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at paras
54-5 and
Thint
above n 13
at paras 74-5.
40
These four safeguards are found in
Thint
above
n 13 at para 81.
41
I say this aware that section 21 also empowers
justices of the peace to issue warrants. Since all the warrants
were issued by
magistrates the discussion of this safeguard is
confined to judicial offi
cers.
42
Thint
above n 13
at para 83. See also
South African
Association of Personal Injury Lawyers v Heath and Others
[2000]
ZACC 22
;
2001 (1) SA 883
(CC);
2001 (1) BCLR 77
(CC) at para 34.
43
Hyundai
above n
39 at para 52;
Thint
above n 13 at paras 85-6.
44
Powell
above n
12 at para 59;
Thint
above n 13 at para 88.
45
This may be done either in motion proceedings or during a criminal
trial when an attempt is made to rely on the articles seized
on the
authority of a warrant.
46
In addition, the validity of a warrant may also be challenged on the
bases set out in [55] below, with due regard to the guidelines
in
[56] below of this judgment.
47
Hertzfelder
above n 11 at 405. I say this aware of the strongly held divergent
views on the significance of the dictu
m in
Hertzfelder
.
48
Pullen
above n 10 at 849-50.
49
The majority decision in
Pullen
expressed the view that (i)
it was highly desirable that a search warrant mentions the alleged
offence, (ii) the searched person
should know the reason why her
premises are being invaded, (iii) it was obvious why this should be
so, and that (iv) officials
issuing warrants would do well to ensure
that the offence is stated in every case.
50
Pullen
above n
10 at
862-4.
51
Thint
above n 13
at para 159.
52
Thint
above n 13
at paras 137 and 151. See also
Powell
above n 12 at para 59.
53
Thint
above n 13
at para 154.
54
Id
at para 159.
55
Id at para 151. In support of this position,
Thint
, at
fn 112, placed reliance on
Rudolph and
Another v Commissioner for Inland Revenue and Others
[1997] ZASCA 23
;
1997 (4) SA 391
(SCA) at 397 in holding that—
“
[t]here is
no reason to hold that this intelligibility principle should impose
exactly the same requirements for all search and
seizure warrants,
no matter the statutory provision in terms whereof they are issued.”
56
Van der Merwe SCA
above n 15 at para 32.
57
Section 1 of the Constitution reads, in part:
“
The Republic
of South Africa is one, sovereign, democratic state founded on the
following values:
. . . .
(c) Supremacy of
the Constitution and the rule of law.”
58
Many foreign jurisdictions also require search warrants to specify
the offence under investigation.
In a query
conducted through this Court’s involvement in the European
Commission for Democracy through Law (the Venice Commission)
it
emerged that, of the 13 countries that
submitted replies, eight countries’ laws directly required the
specification of the
offence in a search warrant and five countries
held that it was not a requirement to specify the offence.
Countries within the
Venic
e Commission
that require the offence be mentioned are the Czech Republic,
Estonia, Finland, Germany, Latvia, Norway, Poland and
Slovakia.
Bosnia and Herzegovina, Bulgaria, Georgia, Lithuania and Mexico all
reported that their legal system does not requir
e
the mentioning of the offence in a search warrant. Further,
Australia (
Australian Broadcasting
Corporation and Another v Cloran and Others
(1984)
4 FCR 151
;
57 ALR 742
at para 7), Canada (section 487 of the
Canadian Criminal Code), New Zealand (
Auckland
Medical Aid Trust v Taylor and Others
[1975]
1 NZLR 728
(CA) at 736-7) and Nigeria (section 22(2) of the Criminal
Procedure Act, Chapter 80 of the Laws of the Federation of Nigeria
1990) also require the specification of the alleged offence in
search warr
ants.
59
Pullen
ab
ove
n 10 at 849.
60
Id.
61
Stated somewhat differently in
T
hint
above n 13 at
para 159.
62
Most of these guidelines were gleaned from both
Powell
above
n 12 at para 59 and
Thint
above n 13 at paras 85-6 and 159.
63
The jurisdictional facts are reasonably believing
that (i) a specific offence has been committed or is suspected of
being committed
and (ii) the article to be searched for is in the
possessi
on of or under the control of a
particular person or at specified premises.
64
See the meaning of vagueness and overbreadth at [17] above.
65
Set out at
[55]
above.
66
Set out at [56] above.
67
Section 172(1) states:
“
When
deciding a constitutional matter within its power, a court—
must
declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency.”
68
Section 172(1) states:
“
When
deciding a constitutional matter within its power, a court—
.
. .
may make any order
that is just and equitable, including —
an order limiting
the retrospective effect of the declaration of invalidity; and
an
order suspending the declaration of invalidity for any period and
on any conditions, to allow the competent authority to
correct the
defect.”
69
Head of Department: Mpumalanga Department of
Education and Another v Hoërskool Ermelo and Another
[2009] ZACC 32
;
2010 (2) SA 415
(CC);
2010 (3) BCLR 177
(CC) at para
97.
70
S
v Bhulwana, S v Gwadiso
[1995] ZACC 11; 1996 (1) SA 388 (CC);
1995 (12) BCLR 1579
(CC)
at para 32.
71
National Coalition for Gay and Lesbian Equality and Another v
Minister of Justice and
Others
[1998] ZACC 15
;
1999 (1)
SA 6
(CC);
1998 (12) BCLR 1517
(CC) at para 97;
Centre for Child
Law v Minister for Justice and Constitutional De
velopment and
Others
[2009] ZACC 18
;
2009 (6) SA 632
(CC);
2009 (11) BCLR 1105
(CC) at para 75.
72
Section 35(5) of the Constitution states:
“
Evidence
obtained in a manner that violates any right in 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.”
73
National Coalition
above n 71 at para 97 and
Centre for
Child Law
above n 71 at para 75.