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[2010] ZAWCHC 388
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Minister of Safety and Security and Others v Mohamed (A228/2009) [2010] ZAWCHC 388; [2010] 4 All SA 538 (WCC) (30 April 2010)
Republic
of South Africa
In
the High Court of South Africa
Western Cape High
Court, Cape Town
CASE NO:
A228/2009
MINISTER OF
SAFETY & SECURITY
…........................................................
First
Appellant
SUPERINTENDENT
NOEL GRAHAM ZEEMAN
…................................
Second
Appellant
PAUL
CHRISTIAAN LOUW N.O.
…..........................................................
Third
Appellant
vs
MUSTAFA
MOHAMED
…......................................................................
First
Respondent
OMAR HARTLEY
….........................................................................
Second
Respondent
JUDGMENT
DELIVERED ON THE 30
th
OF
APRIL 2010
LOUW, J:
[1
] This is an appeal, brought with leave granted by the court a quo
(per
Samela,
AJ)
on
T9 December 2008, against the judgment and order of that court
handed down on 14 November 2008:
1. setting
aside a warrant issued by the third appellant in his capacity as the
magistrate, Simonstown on 24 January 2008 (the
warrant], authorising
the search of certain premises situate at 16 and 16A Axminster
Street, Muizenberg Cape;
2. ordering the
first and second appellants to return to the first respondent all
the items/articles seized at 16A Axminster Street,
Muizenberg, Cape
on 24 January 2008; and
3. Ordering the
first and second appellants to pay the costs of the application.
[2] On 24
January 2008 the second appellant (Superintendant Zeeman) applied
for the warrant in terms of the provisions of section
20 and 21 of
the Criminal Procedure Act, 51 of 1977 and on the same day, the
warrant was authorised by the third appellant, magistrate
Louw. The
warrant was executed by superintendant Zeeman and other members of
the police during the early hours of 25 January
2008. Pursuant to a
search of the premises occupied by the first respondent a number of
articles were seized. These articles
are currently being held by the
police pending the outcome of this appeal.
[3] The warrant
was set aside by the court a quo on the basis that the application
for the issue of the warrant was not supported
by "information
on oath" as required by the provisions of section 21 (l)[a) of
the Criminal Procedure Act. The court
a quo found that the
application was supported by an unsigned and unattested document,
purporting to be an affidavit.
[4] I mention
that a similar application was brought by a Mr Achmat to set aside a
search warrant issued by the magistrate in
Vredenburg on 24 January
2008. This application was, however, withdrawn on 7 March 2008 by Mr
Achmat, who did not tender to pay
the respondents' costs to that
date. No costs order was made by the court a quo against Mr Achmat
and the appellants initially
sought a costs order on appeal against
Mr Achmat. This relief was correctly abandoned by the first and
second appellants during
the course of argument because, although
the issue of a costs order against Mr Achmat was raised in the first
and second appellants'
notice of appeal, Mr Achmat is not a party to
this appeal and no order can consequently be made against him on
appeal.
[5]
In the course of his judgment
Samela,
AJ
commented
that in executing the warrant, superintendant Zeeman did not advise
the first respondent of his
'constitutional
rights as was expressed in the Mohamed case
1
.
This
finding did not, however, form a basis upon which the warrant was
set aside by the court a quo. The sole basis upon which
the warrant
was set aside was that the application for the warrant was not
supported by evidence set out on oath in the form
of an affidavit.
This is also the basis upon
Samela,
AJ
granted
the appellants leave to appeal.
[6] I turn
first to consider whether the court a quo was correct in concluding
that there was no evidence on oath before magistrate
Louw, when he
made the decision to authorise the issue of the warrant.
[7] The
relevant part of the first respondent's launching affidavit reads as
follows:
The application
for the search warrant against third applicant, second applicant and
first was not accompanied by any material
information under oath
justifying the invasion of our rights, without first hearing our
side of the story and without providing
us with protection to enable
us to establish what our rights were and how we were to enforce sjoh
rights.
[8] Magistrate
Louw was the first respondent in the court a quo. He did not at the
time oppose the relief sought in that court
and he abided the
decision of the court. He nevertheless filed an affidavit setting
out the facts which gave rise to the issuing
of the warrant. In
response to the above allegation that the application for the
warrant was not supported by information on
oath, Louw stated that
the application for the issue for the warrant that was placed before
him on 24 January 2008
was accompanied
by an affidavit deposed to by superintendent Zeeman on 24 January
2008.
and that he
[Louw]
considered the
application for the warrant and more particularly the affidavit
filed in support of it. It appeared from the information
contained
in that affidavit that there were reasonable grounds to believe that
there were articles and documents under the control
of the persons
or at the premises referred to in the warrant. I therefore issued
the warrant for search and seizure which forms
the subject of this
application.
[9] Magistrate
Louw referred also to a further answering affidavit, filed by
superintendent Zeeman and stated that he had been
requested not to
annex a copy of the affidavit that had been placed before him
because it contained sensitive information which
was likely to
compromise the investigation if made public.
[10] In
paragraphs 7 to 11 of his answering affidavit superintendent .
Zeeman, who was the third respondent in the court a quo,
and who
with the first appellant (the Minister, who was the fifth respondent
in the court a quoj opposed the application in that
court, set out
in broad outline the information obtained by the police which led to
the application for the issue of the warrant.
Zeeman's answering
affidavit then continues as follows:
13. The
affidavits placed before the magistrates to obtain the search
warrants substantially contains the information referred
to in
paragraphs 7 to 11 above. I do not attach these affidavits as they
contain sensitive information relating to the investigation,
which,
if made public, is likely to compromise or jeopardise the
investigation. . ..
14. I shall,
however, ensure that a copy of the affidavit placed before the
respective Magistrates (with sensitive details which
is 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] In reply
the first respondent did not in terms deny the fact that an
affidavit had been placed before the magistrate in support
of the
application for the issue of the warrant. He did no more than to
refer to the "alleged affidavits" and to state
that, to
enable the respondents to give their version, they must be
allowed'access to the affidavits.
[12]
The application was finally set down for hearing and was heard by
Samela,
AJ
on
20 August 2008. In anticipation of the hearing, Mr Schippers, the
first and second appellants' then counsel, filed a practice
note
dated 18 August 2008. Court Notices 8 and 13 require the filing of a
note wherein is set out the nature of the proceedings,
the estimated
duration of the hearing and the details of the legal representatives
of the parties. Counsel annexed a document
to the practice note
which he described therein as follows:
A copy of the
affidavit to obtain the relevant search warrant ... which was not
attached to the answering papers for the reasons
stated in the
answering affidavit (p 62 paragraphs 13 - 14).
[13] The
document annexed to the practice note is in the form of an affidavit
by superintendent Zeeman. Parts of a number of paragraphs
of this
document are blanked out and are illegible. The document contains a
certificate signifying that the affidavit was signed
and sworn to
before a commissioner of oaths on 24 January 2008 in Cape Town. The
document is however not signed by the deponent
Zeeman and the
commissioner of oaths. The document annexed to the practice note is
clearly not an affidavit in proper form.
[14]
In his judgment,
Samela,
AJ
comments
as follows on what occurred during the proceedings before him.
[3] Mr Omar,
counsel for the Appellants, argued, amongst others, that the
application for the issuing of a warrant was flawed
because the
affidavit by the third Respondent to the first Respondent was not
signed and attested. Also, that the third Respondent
did not
justified the omission of explaining to both Appellants their
rights. Mr Schippers, for the Respondents, argued, that
the
Magistrate considered the application and more specifically the
affidavit and therefore the issuance of the search and seizure
was
justified. He argued further that provided that the search warrant
complied with the safeguards contained in the Criminal
Procedure
Act, it was lawful and constituted limitation on the right to
privacy.
Counsel for the
Applicants and the Respondents agreed that this matter was to be
decided on papers before this Court. Mr Schippers,
for the
Respondents, told the Court that the affidavit that was placed
before the Magistrate was signed and properly attested.
He was
unable to give any explanation why the copy which was placed before
this Court was not signed and attested. Where a document
purporting
to be an affidavit is not signed by the deponent and attested by the
commissioner of oaths as it (is) in this matter,
the document cannot
be regarded as an affidavit.
[15] It is
clear from further passages in the judgment of the court a quo that
the learned judge accepted' that the copy which
was placed before
him by the appellant's counsel via the practice note, was in fact
the "affidavit" which was placed
before magistrate Louw
when application was made for the issuing of the warrant. This
appears from the following excerpts from
the judgment:
The
ex
facie
copy
of
the "affidavit" which the third respondent relied on when
he made the application before court, the document was
not attested.
There was also no
viva
voce
evidence
adduced before the magistrate.
I am of the
view that the document by the third Respondent to the first
respondent, which was unsigned and unattested, did notcomply
with
the above requirements. It follows that there was no information
placed before the first respondent on oath.
In
this matter the Magistrate based his belief on an "affidavit"
before authorising a warrant. There was no
viva
voce
evidence
on oath before him as well. As I have indicated above, the
magistrate based his belief on a document which he mistakenly
believed to be an affidavit.
Ex
facie
copy
of the affidavit which was placed before court was a testimony to my
view that the so called affidavit did not comply with
the
requirements laid down for the administration of an oath or
affirmation which have been discussed above. Where there has
been no
proper administration of an oath or affirmation as it was the case
in this matter, I am of the view that there was no
evidence placed
before the magistrate. It was not proper for the magistrate to issue
a warrant, as it was in my view, invalid.
1 am of the
view that the document placed before the magistrate which purported
to be an affidavit, was not an affidavit. Consequently,
the
magistrate mistakenly issued a warrant of search and seizure was
invalid and therefore unlawful.
[16]
Appellants' counsel on appeal, Mr Joubert (on behalf of the first
and second appellant) and Mr Jaga (on behalf of the third
appellant)
submitted that on a proper analysis of the affidavits before the
court a quo and, applying the
Plascon-Evans
2
approach
to the dispute, the court should have found that evidence on
affidavit had been placed before the magistrate and that
the warrant
was lawfully authorised.
[17] The
learned judge a quo had before him direct evidence by magistrate
Louw that he issued the warrant after he had considered
the
application which "was accompanied by an affidavit deposed to
by superintendent Zeeman on 24 January 2008." It
is true that
superintendent Zeeman stated in his answering affidavit that he
would ensure that a copy of the affidavit which
was placed before
the magistrate
(with sensitive
details which is likely to prejudice the investigation expunged from
it) is made available to the presiding Judge
at the hearing with the
request that the contents not be made public
and that what
was placed before the judge as a annexure to the practice note
prepared by appellants' counsel, was an unsigned
and unattested
document in the form of an affidavit.
[18] There is
considerable merit in the submissions made by counsel for the
appellants. It is, however, not necessary to decide
the matter on
that basis because the third appellant has now, in addition, brought
an application for evidence to be paced before
this court on appeal.
The third appellant seeks to place before this court a copy of the
duly signed and attested affidavit (with
sensitive parts blanked
out) which the appellants say were deposed to by superintendent
Zeeman on 24 January 2008 and which was
the affidavit which was
placed before magistrate Louw in its uncensored form as basis for
the issue of the warrant.
[19] The
application to place the affidavit by Zeeman before this court as
evidence, is supported by affidavits deposed to by
magistrate Louw,
superintendent Zeeman and the first and second appellants' attorney,
Mr Kohler. Magistrate Louw confirms that
the warrant was issued by
him on the strength of the affidavit deposed to by superintendent
Zeeman on 24 January 2008. It further
appears from the supporting
affidavits that the presiding judge was informed at the hearing that
the complete affidavit would
be made available to the judge only, so
as to place it beyond doubt that magistrate Louw had before him
evidence on oath justifying
the issue of the warrant. When the
respondents, however, would not agree to the complete affidavit
being put before the presiding
judge, the affidavit was not placed
before the judge.
[20]
The application to lead the further evidence on appeal is opposed by
the respondents. The first respondent's attorney, Ms
Yasmin Omar has
filed an affidavit in opposition. Ms Omar challenges the third
appellant's right to bring the application to
lead further evidence
on appeal. She does so on the basis that he has no
locus
standi
to
appeal the decision of the court
a
quo
in
the light of the fact that he did not oppose the application in the
court a quo and abided the decision in that court. The
answer to
this challenge is first that the third appellant has a clear and
direct interest in the matter on appeal and secondly,
he applied for
and was given leave by the court a quo to appeal its decision. The
third appellant is consequently properly before
this court as an
appellant and is entitled to bring the application to lead further
evidence.
[21 ] To the
extent that there is an discrepancy between the evidence of Louw and
Zeeman and the document placed before the court
a quo, it is in my
view appropriate that the evidence relating to the affidavit be
placed before this court on appeal. My reasons
are briefly as
follows.
[22]
Section 22(a) of the Supreme Court Act 59 of 1959 gives this court
the power on the hearing of an appeal, to receive further
evidence.
Generally the requirements for the exercise of this power are that
the applicant must provide a reasonably sufficient
explanation for
the evidence not being led earlier, that the evidence must be
materially relevant to the outcome of the case
and that the evidence
must be apparently credible. (See
Maketha
v Limbada
1998(4)
SA 143 (W) at 146 F-H.)
[23] The
explanation given by the appellants for the evidence not being
placed before the court a quo is that it was tendered
at the time of
the hearing but was objected to by the respondents and therefore not
admitted at the hearing. The evidence that
this is what happened at
the hearing is not disputed by Ms Omar in her answering affidavit
filed in opposition to the application
to admit the evidence.
Secondly, the evidence sought to be placed before this court on
appeal is apparently credible. Magistrate
Louw said in his affidavit
before the court a quo that a properly signed and attested affidavit
did exist and was placed before
him. The evidence also accords with
what the first and second appellants' erstwhile counsel told the
court a quo during the hearing.
Thirdly, since the very issue is
whether an affidavit was placed before magistrate Louw, the evidence
is clearly of material
relevance to the outcome of this case.
[24] Mr Omar,
on behalf of the first respondent did not in argument before this
court on appeal submit that if the evidence is
placed before this
court, the affidavit in its truncated form did not make out a proper
case for the issue of the warrant. He
also did not submit that the
warrant was unlawful for any other reason. He limited his argument
to three submissions.
[25] First Mr
Omar referred to section 21 A[l) of the Supreme Court Act 59 of 1959
which provides that a court may on appeal dismiss
an appeal if it is
of the opinion that the issues raised in the appeal are of such a
nature that even if judgment is given or
an order is made on appeal
which favours the appellant, that judgment or order "will have
no practical effect or result."
Mr Omar submitted that even if
it be held on appeal that the warrant was validly issued, such an
order will have no practical
effect at any subsequent criminal trial
against the first respondent. This is so, be submitted, because at
the criminal trial
it would be in the discretion of the magistrate
or judge to admit evidence obtained pursuant to the search and
seizure in terms
of the warrant, irrespective of whether the warrant
was lawfully issued or not. He relied on the provisions of section
35(5)
of the Constitution, Act 108 of 1996 which provides that
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".
I
do not agree with Mr Omar's submissions in this regard. An order
upholding the lawfulness of the warrant will have a practical
effect
on the evidence obtained during the search. It will result in such
evidence remaining in the custody of the police to
be used at any
future trial. The evidence will remain preserved and will not have
to be returned to the first respondent. Secondly,
the evidence will
then have been obtained pursuant to a warrant that had not been set
aside. At any future trial the evidence
will not already have been
found to have been obtained in an unconstitutional manner. We were
informed from the bar that the
NDPP does intend proceeding with a
prosecution based,
inter
alia,
on
the evidence obtained during the course of the execution of the
warrant. It follows that the first point raised by Mr Omar
is not
good.
[26]
Secondly, Mr Omar submitted that even if the document annexed to the
application to admit the evidence is admitted the document
did not
constitute a proper affidavit. Although it is signed by
superintendent Zeeman and is signed and. attested by the
commissioner
of oaths on the last page thereof, it nevertheless
lacks validity because, ex
facie
the
copy annexed to the application, it was not initialled on each of
the other pages by the commissioner of oaths. Mr Omar did
not refer
to any authority for this proposition. Although it certainly is the
practice for both the deponent and the commissioner
to initial all
pages of an affidavit on which their signatures do not appear, this
practice is not a requirement for the validity
of the affidavit. It
is not required by the rules governing the administering of oaths
and affirmations that are set out in the
regulations promulgated
under section 10 of the Justices of the Peace and Commissioners of
Oaths Act, 16 of 1963
3
.
[27] The third
point raised by Mr Omar was that since it is common cause that no
constitutional rights were explained to the first
respondent at the
time of the execution of the warrant, the warrant was not lawfully
executed. All items seized pursuant to the
unlawful execution of the
warrant must, even if the warrant itself is valid, be returned to
the first respondent, he submitted.
[28]
Mr Omar relied in this regard on the judgment in
Mahomed
v NDPP,
supra.
That case concerned two warrants obtained in terms of section 29 of
the National Prosecuting Authority Act 32 of 1998 (the
NPA Act]. The
warrants authorised'officials of the NPA to search the office and ■
residence of a practising attorney. The
warrants were executed at
the office and residence of the attorney and a number of articles
were seized and removed. The applicant
applied for the setting aside
of the warrants. One of the contentions raised by the applicant was
that the warrants were executed
without regard for the protections
and safeguards afforded by the provisions of section 29 of the NPA
Act and with no regard
for attorney and client privilege.
[29] The court
held against the NDPP on two bases. First, that the warrants were
obtained in a manner which rendered them unlawful
and secondly, that
the warrants were unlawfully executed.
[30] The
failure to disclose in an affidavit that the person occupying the
premises to be searched is a practising attorney was
held to
constitute a material non disclosure that rendered the warrants
themselves unlawful.
[31] Dealing
with the execution of the warrants, the court held that the person
who executes a warrant issued in terms of section
29 of the NPA Act,
is' under a duty to inform the persons at the premises to be
searched of:
1. their rights
in terms of section 29(1.1) of the NPA Act (that is; that if the
documents to be seized.are claimed to contain
privileged information
and the person claiming privilege refuses inspection and removal,
such documents may be seized and removed
by the registrar of the
court for safe keeping pending a decision by the court on the
question of privilege);
2. their right
to assert privilege; and
3. their right
to have an attorney present at the search.
[32] The court
held- that even though the applicant was herself an attorney, the
search should have commenced only after she had
been advised of the
aforesaid rights. The court held that in "this way the
protections afforded by the Act will be effective"
(at 510c).
[33]
The orders made by the court in
Mahomed
were
confirmed on appeal by the SCA (subject to a variation in the order
to the effect that the material seized will remain under
seal in the
custody of the registrar of the High Court pending the outcome of
certain further steps set out .in the order).
4
The
court of appeal did not, however, expressly consider the merits of
the appeal because the appeal was, in effect and subject
to the
making of the order preserving the material seized, conceded by the
NDPP. The Constitutional Court in the judgment in
•the
Thint
and
Zuma
cases
5
distinguished the
Mahomed
on
the facts. .The Constitutional. Court, further disagreed with the
judgment. in
Mahomed
and
held (at paragraph [206] 86 G - H) that it was not necessary to draw
the attention of the attorney whose premises were being
searched to
the provisions of section 29(11) of the NPA Act.
[34]
In my view the ratio of the
Mahomed
judgment,
to the extent that it has survived the judgment of the
Constitutional Court in the
Thint
and
Zuma
decisions,
does not apply to this case. In this case we are concerned with the
provisions of
sections 20
and
21
of the
Criminal Procedure Act, 51
of 1977
. There are no provisions similar to section 29(11) of the
NPA Act, in the
Criminal Procedure Act. The
Mahomed
judgment
does not, in my view, constitute authority for the proposition that
any constitutional rights should first have been
explained to the
first respondent before the warrant was executed.
[35] Once the
evidence regarding the existence of the affidavit is admitted, as in
my view it should be, it is clear that the
warrant was issued on the
basis of facts placed before the magistrate on oath
[36] As
indicated earlier, Mr Omar did not contend that the warrant was in
other respects not lawfully obtained. In particular,
Mr Omar did not
contend that on the facts set out in the truncated version of the
affidavit which should be placed' before this
court, magistrate Louw
was wrong to conclude that there were reasonable grounds for
believing that there were articles upon the
premises which articles
superintendent Zeeman on reasonable grounds believed to be concerned
in the suspected commission of the
offences mentioned in his
affidavit or which articles may afford evidence of the suspected
commission of those offences or which
articles were intended to be
used in the commission of the offences. In my view a proper case is
made out on Zeeman's affidavit
(even in the truncated version to be
placed before this court) for the issue of the warrant.
[37] The
warrant was consequently issued on the basis of facts placed before
the magistrate on oath which justified the issue
of the warrant
under the provisions of
section 20(1)
of Act 51 of 1977.
[38] I mention
that there are factual disputes on the papers in regard to the
manner in which the warrant was executed. Mr Omar
did not, however,
contend that apart from the issue of the failure to explain any
rights to the first respondent, which contention
is dealt with
above, the warrant was not lawfully executed.
[39] The
warrant was issued lawfully and Mr Omar's contention regarding the
lawfulness of the execution of the warrant is rejected.
It follows
that the appeal must succeed. That being the outcome, there is no
reason why the cost of the original application,
the application to
lead further evidence and the appeal should not, in accordance with
the normal rule, follow the event.
[40] In the
result I would make the following order:
The
application to place the further evidence before this court on
appeal is granted and the first respondent is ordered to
pay the
cost of the application.
The appeal is
upheld with costs.
The order made
by the court a quo is set aside and is replaced with the following
order:
"The
application is dismissed with costs."
W J LOUW,
J
Judge of the
High Court
1
This
is a reference by the court
a
quo
to
the judgment in
Mahomed
v NDPP and Others
2006(1)
SACR(W) at520 a-c'
2
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984(3)
SA 626(A) at 634G-635C
3
See
the regulations promulgated in GN R1258 of 21 July 1972, as amended
by GN R1648 of 1 8 August 1977, GN R1428 of 11 July 1980
and GN R774
of 23 April 1982.
4
NDPP
and Anor v Mohammed
2008 (1) SACR 309
(SCA)
5
Thint
(Pty) Ltd v NDPP and Others: Zuma and Another v NDPP
2009
(1) SA 1
(CC)