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[2010] ZAWCHC 86
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Minister of Safety and Security and Others v Mohamed (A 228/09) [2010] ZAWCHC 86; [2010] 4 All SA 521 (WCC) (30 April 2010)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
No: A 228/09
the
matter of
MINISTER
OF SAFETY & SECURITY
First
Appellant
SUPERINTENDENT
NOEL GRAHAM ZEEMAN
Second
Appellant
PAUL
CHRISTIAAN LOUW N O
Third
Appellant
and
MUSTAFA
MOHAMED
First
Respondent
OMAR
HARTLEY
Second
Respondent
JUDGMENT
DELIVERED : 30 APRIL 2010
MATTER
HEARD ON 29 JANUARY 2010 BEFORE LOUW, MOOSA et ALLIE, JJ
Judgment:
Moosa, J (Allie, J: Concurs)
On
behalf of 1
st
and 2
nd
Appellants : Adv Z F Joubert SC
Attorney(s)
:
State Attorney
On
behalf of 3
rd
Appellant
:
Adv R Jaga
Attorney(s)
:
Brink & Thomas
On
behalf of Respondents : Att Z Omar
Attorney(s) :
Zehir Omar Attorneys (c/o Niland Attorneys)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
No: A 228/09
In
the matter of
MINISTER
OF SAFETY & SECURITY First Appellant
SUPERINTENDENT
NOEL GRAHAM ZEEMAN Second Appellant
PAUL
CHRISTIAAN LOUW N O Third Appellant
and
MUSTAFA
MOHAMED First Respondent
OMAR
HARTLEY Second Respondent
JUDGMENT
DELIVERED : 30 APRIL 2010
MOOSA,
J:
Introduction
[1]
I have had the benefit of perusing and considering the judgment of
my brother,
Louw
J,
in
this matter. I agree substantially with his approach, reasoning and
findings in
respect
of the issues dealt with by him in his judgment. However, I disagree
with the order proposed that the costs of the application
to lead
further evidence on appeal, should be borne by Respondents. The
issue is dealt with later in this judgment. Furthermore,
Louw
J
dealt
with the issue of whether the Respondents should have been advised
of their constitutional rights before the warrant was
executed. I am
in full agreement with the
ratio
on
that issue, but I am of the view that a formal finding should be
made as it is one of the issues that was not formally decided
by the
court
a
quo.
The
court
a
quo
disposed
of the case on another issue, namely that the Third Appellant did
not have evidence under oath which was a prerequisite
for the
granting of a warrant of search and seizure in terms of section 21
read with section 20 of the Criminal Procedure Act,
No 51 of 1977
("the Act"). I will refer to this as the main ground of
challenge. I also agree with the
ratio
decidendi
of
Louw
J
that
the warrant was issued on the basis of facts placed before the
magistrate on oath under the provisions of section 20(1) of
Act 51
of 1977. In view of the fact that the court
a
quo
disposed
of the matter on the main ground, the other grounds for the
challenging of the warrant have not been adjudicated upon
and those
grounds must, in my view, either be referred to the court
a
quo
for
consideration and adjudication or ought to be considered and
adjudicated upon by this court.
The
Scope of the Enquiry
[2]
The First Respondent in his founding affidavit sets out a "summary
of grounds on which the warrant/warrants and all seizures
should be
set aside or declared unlawful". Some of the grounds overlap
with each other and I will not necessarily be dealing
with the
grounds in the sequence that they appear in the said paragraph.
Besides the grounds already dealt with, the other grounds
of
challenge are firstly, that the Second Appellant had failed to
disclose to the Third Appellant material facts, and was accordingly
guilty of material non-disclosure; secondly, that the First
Respondent should have been given notice of the Second Appellant's
application to the Third Appellant for a warrant or in the absence
of a notice, the Third Appellant should have built safeguards
"into
the order in terms of which we were given a fair chance to establish
and enforce our rights before they were invaded",
in view of
the fact that the application for the issue of the warrant was made
ex
parte
and
without notice to him; thirdly, that the issue of the warrant
imposed limitations on his rights to dignity (section 10), privacy
(section 14) and freedom to practice trade, occupation and
profession (section 22) and such limitations were not reasonable and
justifiable in terms of section 36 of the Constitution; fourthly,
that the terms of the warrant were too general and over-broad
and
lastly, that the Third Appellant did not apply his mind properly to
the matter when exercising his discretion to authorise
the warrant.
[3]
During argument before us, the parties essentially concentrated on
whether the Third Appellant had information under oath
to justify
the issue of the warrant. The
ratio
decidendi
of
the court
a
quo
in
setting aside the warrant, as
Louw
J
correctly
points out, was that the Third Appellant did not have information
under oath to justify the issue of the warrant. Because
the court
a
quo
had
disposed of the matter on that ground, it was unnecessary for it to
dwell on the other grounds raised by the Respondents in
their
papers. The court
a
quo,
did,
in passing, refer to certain authorities dealing with the impact of
search and seizure on the rights to privacy and property,
the
limitation of such rights, the nature and ambit of the terms of a
warrant of search and seizure and the right to be informed
of one's
constitutional rights. The court
a
quo,
however,
did not make any formal findings in respect of those issues.
[4]
The powers of the appeal courts to consider grounds of appeal not
covered by the leave granted are succinctly set out in
Douglas
v Douglas
[1996]
2 All SA 1
(A) at 8i-9c as follows:
"It
is trite that, in both criminal and civil matters, leave to appeal
may be limited so as to allow only particular grounds
of appeal to
be advanced (see
Ngqumba
en 'n
Ander
v Staatspresident en Andere; Damons N O en Andere v Staatspresident
en Andere; Jooste v Staatspresident en Andere
1988
(4) SA 224
(A) op 246C-247C;
S
v Safatsa and Others
1988
(1) SA 868
(A) at 877A-G). But it is also true that '...this Court
will not necessarily consider itself bound by the grounds upon which
leave has been granted. If this Court is of the view that in a
ground of appeal not covered by the terms of the leave granted there
is sufficient merit to warrant the consideration of it, it will
allow such ground to be argued'
(S
v Safatsa,
supra,
at 877B-D. See also
R
v Mpompotshe and Another
1958
(4) SA 471
(A) at 472H-473F)."
[5]
During the hearing of the matter in this court, counsel for the
parties were asked what would happen to the other issues raised
by
the First Respondent in his papers, but which were not decided,
should this court uphold the appeal on the main ground in
question.
They were specifically referred to the challenge that the warrant
was over-broad. It appears that counsel were taken
by surprise as
they had not prepared for such eventuality. The court indicated to
them that they could submit further heads of
argument in respect of
those issues, but they did not take up the offer. Adv
Joubert
SC,
for the First and Second Appellants, submitted that there was no
merit in the other issues and more particularly said that
the
warrant was not overbroad. Adv
Jaga,
for
the Third Appellant, supported Adv
Joubert
in
those submissions. Mr
Omar,
for
the Respondents, was somewhat ambivalent. He indicated that the
matter ought to be referred back to the court
a
quo,
but
at the same time said that the Respondents would like to see that
the matter is brought to finality as soon as possible.
The
Forum which is to Adjudicate the Remaining Issues
[6]
As far as the adjudication of the other issues is concerned, the
question which must be decided is, whether the matter should
be
referred to the court
a
quo
for
consideration or whether this court should adjudicate upon those
issues. I am of the view that this court is in as good a
position as
the court
a
quo
to
decide such issues for the following reasons:
Louw
J,
in
his judgment, has partially adjudicated on the question of whether
the Respondents should have been informed of any of their
constitutional rights before the warrant was executed; the parties
themselves are keen to bring the matter to finality as soon
as
possible; should the matter be referred to the court
a
quo,
a
delay would ensue before the issues are decided and, if the parties
are then unhappy with the result, the matter would have
to come to a
full bench again on appeal; such process would entail the incurring
of unnecessary costs; the issues are crisp and
the parties have
elected not to submit further heads of argument in respect of the
issues. In the circumstances, I conclude that
it will be in the
interest of the administration of justice that this court decides
the outstanding issues instead of referring
the matter back to the
court
a
quo
for
consideration.
[7]
It is perhaps appropriate to mention that the Second Respondent was
not a suspect in this matter and nothing was seized from
his
premises at 16a Axminister Street,
Muizenberg.
We are essentially seized with the challenge of the warrant in
respect of 16a and 16 Axminister Street, Muizenberg
("the said
premises") by First Respondent.
Application
for the Reconsideration of the Matter
[8]
Because of the
ex
parte
nature
of the application for the issue of a search and seizure warrant in
terms of section 21 read with section 20 of the Act,
the Respondents
were entitled to bring an urgent application for the reconsideration
of the matter in terms of Rule 6(12)(c)
of the Uniform Rules of
Court
(Pretoria
Portland Cement Co Ltd and Another v Competition Commission and
Others
2003
(2) SA 385
(SCA) paras [44] -[48]. The rule reads as follows:
"(c)
A
person against whom an order was granted in his absence in an urgent
application may by notice set down the matter for reconsideration
of
the order."
This
rule is a procedural remedy which recognises the
audi
principle.
(National
Director of Public Prosecutions v Braun and Another
2007
(1) SA 189
(C) paras [16] and [18].)
[9]
The reconsideration of the order based on the
audi
rule
must, as a rule, be founded on the record which served before the
judicial officer that granted the order. In this matter
it is common
cause that the affidavit of the Second Appellant on which the Third
Appellant granted the order was not made available
to the First
Respondent or the court
a
quo
on
the basis that it contained sensitive information relating to the
investigation. In paragraph 4 of his affidavit, dated 30
November
2009, the Second Appellant states that if the complete affidavit is
made public:
"I
would add that apart from compromising or jeopardising the criminal
investigation, the disclosure of the complete affidavit
placed
before the
Third
Appellant when he authorised the search warrant in question, is
likely to reveal the identity of the source of the information
contained in the affidavit, which in turn, is likely to endanger
that person's life."
[10]
The Second Appellant, in paragraph 14 of his answering
affidavit, dated 18 March
2008,
went on to state:
"I
shall, however, ensure that a copy of the affidavit placed before
the respective Magistrates (with sensitive details which
is (sic)
likely to prejudice the investigation expunged from it) is made
available to the presiding Judge at the hearing of the
application
with the request that its contents not be made public."
[11]
The First Respondent in his replying affidavit, dated 24 March 2008,
says: "
The
information that Respondent (sic) wishes to have expunged from the
affidavit it plans to give this honourable court, has already
been
disclosed to at least two other magistrates. The hollow nature of
the reasons for Respondent's (sic) refusal to disclose
these alleged
affidavits to this honourable court is emasculated by reasons why
Respondents (sic) trust the magistrates more
than the learned Judge
seized with this matter."
[12]
It is not clear on what authority the Second Appellant decided to
circumscribe the record which served before the Third Appellant.
It
smacks of executive interference with a matter which is the
exclusive confines of the judiciary. In my view, the First
Respondent
is justified in expressing his concern as to why the
affidavit which served before the Third Appellant was not available
to the
High Court Judge who reconsidered the matter. The further
question that arises is: Why initially the Appellants were only
prepared
to make the truncated affidavit available to the court
a
quo
and
not the complete affidavit? The First Respondent averred that he
must be allowed access to the complete affidavit to enable
him to
give his version of the allegations on the basis of the
audi
rule.
In this regard he relied on rule 53 of the Uniform Rules of court to
obtain access to the record of the proceedings before
the Third
Appellant. He submitted that this will enable him, in the first
place, to respond effectively to the allegations contained
in the
affidavit of the Second Appellant which was placed before the Third
Appellant and, in the second place, to enable the
court to
adjudicate effectively upon the propriety of the warrants, having
regard to the jurisdictional requisite of "reasonableness".
[13]
The disclosure of the affidavit in question has a chequered history.
Although
Louw
J
touched
thereon in his judgment, I would like to mention some of the facts
for the sake of completeness. Soon after the warrant
was executed,
the First Respondent, through his attorney, informed the Chief
Magistrate of Simons Town that he intended bringing
an urgent
application to review and set aside the warrant and requested access
to "the affidavits or information under oath"
which
justified the issue of the said warrant. This request was refused.
In the papers the Second Appellant undertook to ensure
that a copy
of the affidavit that was placed before the Third Appellant, with
sensitive details expunged, is made available to
the presiding judge
with the request that the contents not be made public.
[14]
In anticipation of the hearing in the court
a
quo,
a
document was filed pursuant to a practice notice. The document was
in the form of an affidavit, but it was unsigned. Parts of
the
document were blanked out and illegible. Counsel for the Appellants
could not give any explanation why the copy, which was
placed before
the court, was not signed and attested. It appears that the court
a
quo
was
informed that the completed affidavit would be made available to the
court only, but the Respondents would not agree thereto.
At the
hearing before us, application was brought for evidence to be placed
before us on appeal. The new evidence was a copy
of the duly signed
and attested affidavit that served before the Third Appellant but in
its censored form.
[15]
In reconsidering the order, it is quite clear that neither the First
Respondent nor the court
a
quo,
nor
this court had access to the affidavit in the form that it served
before the Third Appellant. In his affidavit, the Third
Appellant
states that, in addition to the facts stated in paragraphs 6-10 of
Second Appellant's affidavit, there was additional
information in
the impugned affidavit that justified the issue of the warrant.
Neither First Respondent nor the court
a
quo,
nor
this court is privy to such information. Third Appellant states
further in the affidavit that:
"I
am not at liberty to disclose this information because it is
sensitive and is likely to compromise or jeopardise the
investigation, as stated in the affidavit of Superintendent Zeeman.
For the same reasons, I have been asked not to annex to this
affidavit, a copy of Superintendent Zeeman's affidavit made on 24
January 2008."
We
are not told who asked Third Appellant not to annex Second
Appellant's affidavit to his. In my view, the First Respondent is
likely to have been prejudiced by not having been able to
effectively present his case at the reconsideration of the matter
and this can constitute a violation of the
audi
alterem partem
rule.
The courts are likewise disadvantaged in reconsidering the
correctness of the order granted. This forms the very basis
of the
challenge launched by the First Respondent.
[16]
It is unfortunate that the parties and the courts are placed in this
dilemma. In my view, the Second Appellant should have
crafted his
affidavit in such a way so as to avoid disclosing information that
is sensitive and likely to compromise and jeopardise
the
investigation and the identity of the informant. He should have been
mindful of the fact that should the parties challenge
the order
authorising the warrant in an
ex
parte
application,
the record of the proceedings, including the affidavit in its
uncensored form, would, as a rule and as a matter of
course, be
available to such parties in order to meet the case of the
State.
[17]
In my view, it would be improper for an officer of a lower court to
have access to certain information in a matter and the
officer of a
superior court reviewing the decision of that officer not having
access thereto. The situation is untenable as it
impacts on the
integrity and independence of the judiciary. At the same time, I am
mindful of the fact that it is in the public
interest for the
identity of informers to be protected as they play a valuable role
in the fight against crime. For reasons that
will become apparent
later, it is not necessary for me to resolve this dilemma.
Evaluation
of the Remaining Issues
[18]
With that backdrop, I will deal with the issues in the order that
they are set out under the heading: "The Scope of
the Enquiry"
above. Thereafter, I will deal with the question of costs including
the costs occasioned by the Application
to lead further evidence on
appeal. The facts are set out in the judgment of
Louw
J
and
I will not repeat them save insofar as they may be relevant to my
evaluation of the issues. I return to the issue that the
constitutional rights of the Respondents were not explained to them
before the search was conducted by the Second Appellant.
I agree
with the
ratio
of
Louw
J
on
this issue, and for the sake of completeness, I make a formal
finding that it was not necessary for the Second Appellant to
explain their constitutional rights to the Respondents as they were
not charged. With that issue out of the way, I now turn to
deal with
the other issues.
Material
Non-Disclosure
[19]
The first ground is the question of material non-disclosure. The
First Respondent alleged in his papers that the Second Appellant
is
guilty of misstatement and material nondisclosure in that he
did not disclose to the Third Appellant in chambers that
the First
Respondent had no previous convictions. The Appellants denied these
allegations. There is no obligation in law, statutory
or otherwise,
for the Second Appellant to have disclosed to the Third Appellant
that First Respondent had no previous convictions.
The presence or
absence of previous convictions is, in any case, not a prerequisite
for the issue of a warrant in terms of section
21 read with section
20. If such information were disclosed and the party did indeed have
previous convictions, the party involved
could well have argued that
he or she had been prejudiced by such disclosure. I do not think
that there is any merit in this
ground.
Notice
and Safeguards
[20]
I now turn to deal with the second ground. The First Respondent in
his papers stated that the
ex
parte
application
for the warrant was not supported by any factual material on the
strength of which it could have been concluded that
the object of
section 21 read with section 20 of the Act, would be defeated "if
prior notice of the application had been
given to us or if
safeguards were built into the order in terms of which we were given
a fair chance to establish and enforce
our rights before they were
invaded". It is not clear what safeguards the First Respondent
had in mind. The Appellants denied
that the warrant was not
supported by any factual material and refuted First Respondent's
right to be heard before the search
warrant was granted. They also
denied that his "rights were invaded". It is common cause
that no prior notice was given
to the Respondents of the Second
Appellant's application to secure a warrant from the Third
Appellant.
[21]
There is no provision in Chapter 2 of the Act that prior notice
ought to be given to the affected party of the intention
of the
State to obtain a warrant or that safeguards be built into the order
in terms of section 21 read with section 20. It appears
that the
section envisages an
ex
parte
application.
These procedures have the element of secrecy and surprise, in order
to safeguard the evidence from destruction, removal
or concealment
to frustrate the detection of crime or to impede the investigation.
In my view, such procedure is not unconscionable
as alleged by the
First Respondent. There is the distinct danger that the object of
the search and seizure operation may be defeated
if prior notice is
given to the affected party and accordingly render the relief
nugatory. There may be exceptional circumstances
where that may not
happen and, in that event, the judicial officer would have a
discretion to determine whether or not prior
notice ought to be
given, depending on the particular circumstances of the case.
[22]
I am satisfied that, on the facts and circumstances of this case,
there was no need to give the First Respondent prior notice
of the
application for a warrant or to build in safeguards in order to give
him a fair chance to establish and enforce his rights
before they
were invaded.
Whether
the Limitation of Respondents' Rights was Reasonable and Justifiable
[23]
The third ground relates to the limitation of the rights. The First
Respondent states that the Appellants have not justified,
or even
made any serious efforts to justify the limitations of their rights
in terms of section 36 of the Constitution. The Appellants
sought to
impose and succeeded in imposing the limitations on his
constitutional rights to dignity (Section 10), privacy (Section
14)
and freedom to practice his trade, occupation or profession (Section
22) under cover of the warrant and the powers conferred
upon them by
the Act. The Appellants averred that these constitute legal
argument. However, they have denied that the Respondents'
rights
have been infringed.
Legal
Principles Governing Search and Seizure
[24]
In this matter the search and seizure were authorised in terms of
section 21 read with section 20 of the Act. Section 20
authorises
the State to seize certain articles pursuant to a warrant issued in
terms of section 21. The object is to enable the
State to obtain
evidence to institute a prosecution in respect of certain alleged
offences. The search and seizure operation
impacts seriously on the
right to privacy which is entrenched in the Constitution.
[25]
Section 14 of the Constitution provides:
"Everyone
has the right to privacy, which includes the right not to have -
their
person or home searched;
their
property searched;
their
possessions seized; or
the
privacy of their communications infringed."
These
rights are underpinned in the Constitution by values of human
dignity, freedom and equality.
(Zuma
v National Director of Public Prosecutions and Others
2009
(1) SA 1
(CC) para [76];
Bernstein
and Others v Bester and Others NNO
[1996] ZACC 2
;
1996
(2) SA 751
(CC) para [77] and
Investigating
Directorate: Serious Economic Offences and Others v
Hyundai
Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor
Distributors
(Pty)
Ltd and Others v Smit N O and Others
[2000] ZACC 12
;
2001
(1) SA 545
(CC) para [18].)
[26]
These constitutional rights may be limited under certain
circumstance in terms of
section
36 (1) of the Constitution, which provides:
"The
rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation
is reasonable
and justifiable in an open and democratic society based on human
dignity, equality and freedom taking into account
all relevant
factors, including -
(a)
the nature of the right;
(b)
the importance of the purpose of the limitation;
(c)
the nature and extent of the limitation;
(d)
the relation between the limitation and its purpose; and
less
restrictive means to achieve the purpose."
[27]
These rights are not absolute. When they are mutually limiting, they
need to be balanced against each other and to be reconciled
either
by limiting the exercise of the one right to the extent necessary to
accommodate the exercise of the other right or rights,
or by
limiting the exercise of both or all the rights as required by the
particular circumstances of the case and within the
constraints
imposed by section 36 of the Constitution
(Midi
Television t/a E-TV v Director of Public Prosecutions (Western Cape)
[2007] ZASCA 56
;
2007
(5) SA 540
(SCA)
para's [9]-[11]).
[28]
It is a trite principle of our law that search and seizure
provisions of the Act, constitute a reasonable and necessary
limitation on the right to privacy to combat crime in the country.
In balancing and reconciling, on the one hand, the right of
the
State to fight crime by detecting and prosecuting crime, including
the use of informers in that regard , and, on the other
hand, the
rights of the First Respondent, i.e. the right to privacy
underpinned by the right to dignity and the freedom to practice
his
trade, occupation or profession and the right to fair legal process,
the limitation on the rights of the First Respondent,
in my view, is
reasonable and justifiable in terms of section 36 of the
Constitution. (See:
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others
(supra)
paras
[54]-[55].)
The
Over- Broadness of the Warrant
[29]
I now consider the fourth ground namely, the over-broadness of the
warrant. The Respondents launched the challenge on two
legs: the
first leg was "that the people identified on page 4 of 'MM1'
under the heading 'Persons to participate in the
search' is over-
broad and unlawful "; the second leg was that the warrant as a
whole is over-broad in that there is no
rational connection between
the wide terms of the search warrant sought and the grounds for
justification for such warrant.
The
First Leg of the Enquiry
[30]
I will deal with the first leg, namely, that the police officers
authorised to participate in the search were over-broad
and
unlawful. The Appellants denied the allegations "for reasons to
be argued at the hearing of this application".
The warrant is
addressed to the Second Appellant and to the police officials
identified in annexure "A". Annexure "A"
identifies five police officers by their ranks and names and
contains a general category, namely, "And other members of
Organised Crime". Annexure "A" also contains a list
of four premises to be searched. Only one falls within the
jurisdiction of the court from which the impugned warrant was
issued. Section 21 (2) of the Act authorises a police official
to
carry out the search and seizure operation.
[31]
It is important that the police official, who is authorised to
execute the warrant, is identified in the warrant, so that
the
person whose right to privacy is being invaded, can demand that the
police official concerned identifies himself or herself.
Section 29
of the Act provides for the search to be conducted with strict
regard to decency and order. The unidentified members
of the
Organised Crime Unit mentioned in the warrant were merely required
to assist the identified police officials to execute
the warrant.
[32]
Taking into consideration that four different premises were to be
searched, the number of identified and unidentified officers,
in my
opinion, cannot be regarded as unreasonable for the operations. In
the circumstances I hold that the number of police officers
authorised to participate in the searches does not make the warrant
over-broad and unlawful as alleged by the Respondents.
The
Second Leg of the Enquiry
[33]
I now turn to deal with the second leg, namely, that the warrant as
a whole is overbroad in that there is no rational
connection
between the wide terms of the search warrant and the grounds for the
justification for such warrant. In their replying
papers the
Appellants state that the allegations constitute legal argument. I
assume that the matter was argued before the court
a
quo.
The
court
a
quo
did
not make a formal finding in respect of the issue because it
disposed of the case on another ground.
[34]
A close scrutiny of the warrant does not reflect when the alleged
offences were committed. The Protection of Constitutional
Democracy
Against Terrorist and Related
Activities,
Act No 33 of 2004 ("Act No 33 of 2004") came into
operation on 20 May 2005. Terrorism, as an offence, is
covered in
the warrant as a separate offence, but is also replicated as an
offence under section 2 of Act No 33 of 2004. The
Internal Security
Act 74 of 1982, which was the previous legislation that regulated
the offence of terrorism, was repealed with
the coming into
operation of Act No 33 of 2004. It is, therefore, presumed that the
crime of terrorism was included in the event
of the offence having
been committed prior to 20 May 2005 and thus falling outside the
scope of Act No 33 of 2004. The affidavit
of the Second Appellant
dated 24 January 2008, seeking a warrant from the Third Appellant,
says in paragraph 13:
"I
refer to annexure "B" which contains the time periods
relevant to the documents required. The time periods therein
were
determined with reference to the periods during which the suspects
committed the offence."
[35]
Having scrutinised annexure "B" of the warrant, no
reference to dates can be found. In my opinion, this constitutes
a
material and fatal omission from the warrant. It not only makes the
warrant over-broad, but begs the question: Did the Third
Appellant
apply his mind to the terms of the warrant? I will return to that
question later. It appears from paragraph 10 of the
Second
Appellant's affidavit that the warrant was prepared beforehand as he
refers to it in that paragraph. The annexure "B"
of the
warrant appears to be an exact replica of annexure "B" to
the Second Appellant's affidavit save for the numbering.
The warrant
appears to have been prepared by the Second Appellant and presented
to the Third Appellant as a draft warrant. It
is quite apparent that
the Third Appellant did not see the need to limit the scope of the
warrant or build in any safeguards
into the warrant. It is trite
that the parameters within which the search is to be conducted is
the function of the judicial
officer and not the person executing
the warrant. The judicial officer is the custodian of the
Constitution and is in the best
position to strike a balance between
the interest of the State and the interest of the individual.
(Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd
(supra)
para
[54].)
[36]
Cameron
JA
writing
for the majority in
Powell
N O and Others v Van der Merwe
N
O and Others
2005
(5) SA 62
(SCA), after analysing the relevant authorities, sets out
the principles at para [59] as follows:
"These
cases establish this:
(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;
(c)
The terms of a search warrant must be construed with reasonable
strictness. Ordinarily there is no reason it should be read
otherwise than in the terms in which it is expressed;
(d)
A warrant must convey intelligibly to both searcher and searched the
ambit of the search it authorises;
(e)
If a warrant is too general, or if its terms go beyond those
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 objects, and must do so
intelligibly and narrowly within the bounds of the empowering
statute."
(See
also:
Toich
v The Magistrate, Riversdale and Others
2007
(2) SACR 235
(C).)
[37]
The
dictum
of
Langa
CJ
(as
he then was) in
Zuma
v National Director of Public Prosecutions and others
(supra)
at
para [79] re-inforces the above principles:
"First,
a judicial officer will exercise his or her discretion to authorise
the search in a way which provides protection
for the individual's
right to privacy. Second once the decision to issue the search
warrant has been made, the judicial officer
will ensure that the
warrant is not too general nor overbroad, and that its terms are
reasonably clear. At the third stage, the
right to privacy may still
be vindicated by a reviewing court, which can strike down overly
broad warrants and order the return
of objects which were seized in
terms thereof. Finally the criminal trial must be fair, and an
accused person is entitled to
object to any evidence or conduct that
may render the trial unfair."
[38]
The test whether the warrant is too general and over-broad is
assessed objectively on the basis that a warrant must be reasonably
intelligible in the sense that it must reasonably convey both to the
searcher and the searched the ambit of the search it authorises
in
the light of the requirements of section 21 read with section 20 of
the Act.
[39]
On the basis of the above principles, I will examine whether the
terms of the warrant are too general and over-broad. The
warrant
under examination authorises the police officials described in
annexure "A" to enter the said premises and
to search and
seize articles/documents referred to in annexure "B" and
to search any person, vehicle or container on
or at such premises
for the said articles/documents and to seize them if found.
[40]
The warrant further authorises the Technical Support Unit ("TSU")
of the SAPS to download from computers, electronic
equipment and
devices (the "electronic equipment") information that may
be stored with regard to the documents referred
to in annexure "B"
or authorises any police official identified in annexure "A"
to seal the equipment and
remove them to the offices of the TSU for
purpose of downloading. The search and seizure of the electronic
equipment serves a
limited purpose, namely, to download
articles/documents mentioned in the warrant.
[41]
The articles/documents set out in annexure "B" to the
warrant, on the face of it, appear to be too general,
over-broad and
its terms are not reasonably clear. The warrant is, in my view, not
reasonably intelligible, in that it does not
reasonably convey to
the persons participating in the search as per annexure "A"
and the suspects and occupants of
the premises the ambit of the
search it authorises. The scope of the warrant gives, in my view,
untrammelled power to search
the said premises and seize from such
premises any articles/documents they see fit within the range of the
various classes of
items. I will examine each class of item to show
the generality, over-broadness and vagueness.
(a)
Item 1: The object of searching and seizing the electronic
equipment is limited to downloading the stored information and
documents referred to in annexure "B" of the warrant or
removing such electronic equipment for the purpose of downloading
such information and documents. Should the need for downloading such
information and documents cease, then the seizure of the
electronic
equipment comes to an end. Because of my findings which will become
apparent later, the object of searching and seizing
the electronic
equipment has come to an end.
(b)
Items 2, 3, and 4: The financial statements, accounting records and
bank documents are unlimited in scope, too general and
over-broad.
The warrant authorises the seizure of these items belonging to
anyone. In the present instance, the police could
have seized the
financial statements, accounting records and bank documents of the
Second Respondent and his spouse and of those
of the parents and
maternal grandmother of the First Respondent, who occupied the
premises. The warrant gave no indication how
far back in time the
searches could extend. Financial statements, accounting records and
bank statements going back many years
and unrelated to the alleged
offences, could be subject to seizure. The warrant, furthermore,
does not distinguish between persons
who could reasonably be
suspected of being in possession of the articles and documents and
others who happen to be fortuitously
on the premises. The warrant
can expose innocent persons with no connection to the alleged
offences to the risk of being searched
and their rights of privacy
and dignity being infringed;
(c)
Items 6, 7, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23,
24, and 25 are too general and over-broad, and ambiguous
as to
render them reasonably meaningless to the searcher and the searched.
Some of the items can only make sense to the investigating
officer
seeking the warrant and not the searched. There is also no
indication in the warrant of the time frames of the articles
and
documents to be searched for and seized. It appears from the wording
of the warrant that those executing the warrant have
untrammelled
power to determine what may or may not be taken within the range of
classes set out in the said items and, as such,
it is not reasonable
and justifiable in terms of section 36 of the Constitution.
(d)
Items 5, 6, 8, 9 and 26 are about the closest one can get to
possible incriminating evidence of the commission of a crime.
I will
deal with them hereunder:
(i)
Item
5, relates to documents pertaining to the manufacture and
preparation of explosives. The Respondents state that these
documents
can be downloaded from the internet by anyone, even a 15
year old child;
(ii)
Item
6, relates to documents and/or files pertaining to the planned
illegal activities of the suspects. There is no indication
from the
Second Appellant's Replying Affidavit that such documents and/or
files have been
found;
(iii)
Items
8 and 9, relate to chemicals, articles and material that could be
used to manufacture explosive devices. It is common cause
that no
explosives or explosive residue were found in the raid. However,
certain items were removed from under the bed of the
First
Respondent. The First Respondent described them as a bottle of
liquid pool cleaner, a bottle of
paint remover and a bottle of
hair bleach. He gives an innocent explanation for the use thereof.
The Second Appellant, on the
other hand, states that these items are
chemicals that are used in the manufacture of explosive devices.
(iv)
Item
26 relates to illegal firearms and ammunition. It does not appear
that any of these items were found on the premises.
[42]
As mentioned earlier, the terms of the warrant permit the persons
authorised to search, untrammelled power to search the
said premises
and seize anything they saw fit within the range of the various
classes of items. The State seized tog bags, passport,
ID book, 17
bags of books and 28 tapes, personal letters and essays that the
First Respondent wrote on theology and politics.
The warrant did not
authorise the seizure of these items. It appears that these items
formed the bulk of the items which were
seized from the premises.
The First Respondent states that the Second Appellant removed "all
the books that filled approximately
5 shelves in my book shelf
(sic)".
He
states that these books consisted of mainly Islamic writings by
various authors. He accumulated these books during his studies
in
Islamic Law in Saudi Arabia. As the police officers were not
authorised by the warrant to search for and seize books, their
conduct in confiscating the books of the First Respondent
constituted a violation of his right to privacy, dignity and
property.
[43]
Save for the items set out in paragraph 41 (d) to which I will
return later, all the other items in the warrant, in my view,
are
too general, over-broad and the terms are not reasonably clear. This
then brings me to the next issue, namely, whether the
Third
Appellant applied his mind to the matter and exercised his
discretion properly or at all.
Whether
Third Appellant Applied his Mind to the Matter
[44]
The Respondents' final ground for the challenge of the warrant
is that Third Appellant did not apply his mind to the
matter when
authorising the warrant. This allegation is denied by the
Appellants. The Third Appellant states in his affidavit
that:
"The
applicants also contended that had I applied my mind to the matter,
I 'would have required safeguards to be built into
any order that
was granted....and that I do 'not appear to have given any
consideration to the serious impact the search and
seizure would
have'. The applicants, however, are mistaken. The requirement laid
down in the
Criminal Procedure Act that
an article be seized only by
way of a search
warrant
on application to a neutral officer of the court, ensures that
intrusions upon an individual's right to privacy are safeguarded."
[45]
The Third Appellant misconceives his powers, role and function in
terms of Chapter 2 of the Act. He states that the individual's
right
to privacy are safeguarded by the mere fact that a warrant is
authorised by a neutral officer of the court in terms of
section 21
read with section 20 of the Act. The same argument was tendered
before the court
a
quo.
Langa
CJ
in
Zuma
v National Director of Public Prosecutions and Others
(supra)
says
pertinently that the judicial officer will exercise his or her
discretion to authorise the search in a way which provides
protection for the individual's right to privacy and once the
decision to issue the warrant has been made, the judicial officer
will ensure that the warrant is not too general nor over-broad, and
that its terms are reasonably clear. The Third Appellant
acts in his
capacity as a judicial officer carrying out a judicial function. He
is the guardian of the Constitution and must
ensure that the
fundamental rights of the citizens, as enshrined in the
Constitution, are protected, subject to the limitations
as envisaged
in section 36 of the Constitution. In that regard he, as a neutral
officer in the sense of an impartial officer,
acts pro-actively and
safeguards, as far as reasonably possible, the interest of the
affected party who is not present when the
warrant is sought. The
provisions of Chapter 2 of the Act, by themselves, do not ensure
that intrusions are safeguarded as submitted
by the Third Appellant.
Chapter 2 of the Act merely provides that the search and seizure
operation shall take place during the
day in a decent and orderly
manner. It is his function, as the custodian of the Constitution, to
safeguard any intrusions subject
to limitations which are reasonable
and justifiable in an open and democratic society.
[46]
In the light of my findings, the only reasonable inference I can
draw is that the Third Appellant had failed to apply his
mind
properly or at all, firstly when it came to the jurisdictional
requirements for the authorisation of the warrant in terms
of
section 21 read with section 20 of the Act and secondly, when it
came to the settling of the terms of the warrant. I say so
for the
following reasons: in the first place, The Third Appellant,
misconceived his powers, role and function and made no input
in the
crafting of the warrant for which he was responsible as a judicial
officer; in the second place, the terms and ambit of
the warrant
that was presented to him by the Second Appellant, was accepted and
authorised uncritically by him without him having
made any input
into the terms and ambit of it; in the third place, he failed to
take cognisance of the omission of the dates
from the warrant which,
according to the Second Appellant, contains time periods relevant to
the documents required, and which
were determined with reference to
the periods during which the suspects committed the offence and, in
the fourth place, the terms
of the warrant were substantially too
general, over-broad and not reasonably clear.
The
Severability of the Warrant
[47]
The next question to be answered is: Can the offending sections of
the warrant be severed from the rest of the warrant? In
principle I
cannot see why an impugned section of the warrant cannot be excised
from the rest of the warrant. There may be circumstances
where such
an approach may be just and equitable. In such instance in the words
of
Langa
CJ
in
Zuma
v National Director of Public Prosecutions and Others
(supra)
para
[211] at page 88C-D,
"severance
is the proportionate response; declaring the entire warrant invalid
would amount to using a sledgehammer to crack
a nut".
However,
in the present case, the defects and shortcomings go to the heart of
the matter. I have found that the Third Appellant
had failed to
apply his mind to the matter and had failed to exercise his
discretion properly or at all. In the result, I conclude
that the
entire warrant is tainted and the impugned section cannot be severed
from the rest. In any case the impugned portion
constitutes the
major portion of the warrant. In my view the warrant cannot be saved
and falls to be set aside. In the light
of that finding, it is
unnecessary to resolve the dilemma concerning the censorship of the
affidavit which served before the
Third Appellant.
The
Fate of the Articles Seized
[48]
The next question to be considered is what happens to the articles
and documents seized in terms of an unlawful warrant.
In my opinion
the articles and documents can conveniently be divided into four
categories. The first is the electronic equipment;
the second are
those articles and documents which may be of an incriminating nature
and which may proffer evidence of the commission
of an offence; the
third are those articles and documents which have been seized by
virtue of the over-broadness of the warrant
and the fourth are those
articles and documents that have been seized but which have not been
authorised by the warrant.
[49]
It appears from the Second Appellant's affidavit that a preliminary
examination of the documents, electronic data and chemicals
seized,
reveals that there are documents on how to manufacture and set off
improvised explosive devices; chemicals used in the
manufacture of
explosive devices; videos depicting gruesome and explicit scenes of
the murder of persons and numerous encrypted
messages. It appears
further that the investigation, to a large extent, is based on the
items seized and is confined to contravention
of sections 2, 3, and
5 of Act No. 33 of 2004.
[50]
In my view it is just and fair, in the light of all the
circumstances, to return all the articles and documents seized,
other than those items described in paragraph 41 (d) above, to the
person or persons from whom they were seized, subject to the
provisions of section 31 of the Act. Insofar as those items in
paragraph 41 (d) are concerned, I am of the view that it is just
and
fair that they should be made subject to a preservation order
pursuant to section 172(1 )(b) of the Constitution.
Langa
CJ
in
Zuma
v Director of National Prosecution and Others
(supra)
at
para [220] was of the view that the Constitution does permit a court
to make a preservation order in suitable circumstances.
In my view
the circumstances in this matter justify the granting of a
preservation order in respect of articles and documents
seized
pursuant to items 5, 6, 8, 9 and 26 of the warrant.
[51]
Should the Director of Public Prosecution decide not to institute
prosecution in terms of section 16 of Act 33 of 2004, the
articles
and documents should be returned to the persons from whose
possession those articles and documents have been seized,
subject to
the provisions of section 31 of the Act. On the other hand, should
he or she decide to institute prosecution and decide
to tender the
articles and documents as evidence, the accused would, in terms of
section 35(5) of the Constitution, be entitled
to object to the
admissibility of such evidence on the ground that it would make his
trial unfair. The trial court would then
be in the best position to
give a ruling on the matter in the light of relevant circumstances.
The
Costs
[52]
I now finally come to the question of costs. I have mentioned
earlier that I will return to the question of costs in connection
with the admission of new evidence on appeal. The Appellants as well
as the Respondents have been successful in respect of some
of the
grounds of challenge to the warrant. The Respondents, in my view,
have been substantially successful in the appeal. I
see no reason
why costs, including the costs of the admission of new evidence on
appeal, should not be awarded to the Respondents.
The
Order
[53]
In the result the appeal is upheld in part and dismissed in part.
The order of the court
a
quo
is
set aside and in its place is substituted the following order:
(a)
The decision of the First Respondent of 24 January 2008 to authorise
the issue of a search warrant and the search warrant
dated 24
January 2008 are declared unlawful and are set aside;
(b)
The search and seizure conducted on 25 January 2008 at 16 and 16a
Axminister Street, Muizenberg, are declared unlawful;
(c)
Other than articles and documents seized in pursuance to items
numbered 5, 6, 8, 9 and 26 of the search warrant, the Third
Respondent is ordered to return all articles and documents,
including computers, electronic equipment and accessories, to the
person or persons from whose possession they have been seized,
subject to the provisions of section 31 of the Criminal Procedure
Act, 51 of 1977;
(d)
The
articles seized in pursuance to items 5, 6, 8, 9 and 26 of the
search warrant are made subject to a preservation order in
terms of
section 172
(1)(b) of the Constitution and the Third Respondent
is ordered to hand over those articles to the Registrar of this
Court for
safe-keeping, pending the decision of the Director of
Public Prosecutions whether or not to institute prosecution under
section
16 of the Protection of Constitutional Democracy Against
Terrorism and Related Activities Act, No 33 of 2004;
(e)
Should
the Director of Public Prosecutions decide not to
institute
prosecution, the said articles and documents shall be
returned to those from
whose
possession they have been seized subject to the provisions of
section 31 of the Criminal Procedure Act, No 51 of 1977;
(f)
Should
the Director of Public Prosecutions decide to prosecute and make use
of the exhibits which form the subject matter of the
preservation
order, the accused is entitled to exercise his rights in terms of
section 35
(5)
of
the Constitution;
(g)
The
First, Third and Fifth Respondents are ordered to pay the costs of
First and Second Applicants, jointly and severally, the
one paying
the others to be absolved.
E.MOOSA
ALLIE,
J: I agree.
R.
ALLIE