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documents, 80 mouses and cash in the amount of R 3 770.
The applicant says that it was running an internet cafe at
the premises and that these items were used in the cours e
and scope of that business.
The first and second respondent s say that certain
illegal drugs were seized during the operation , but since the
return of those items is not sought , and it is not suggested
that those items belong to the applicant, I need not say
anything more about them .
The basis for the applicant's claim lies in the
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assertion that the acting magistrate failed to apply his mind
to the material placed before him. Alternatively, it is
contended that the material placed before him was
insufficient to justify the issuing of a search warrant.
S ection 14 of the Constitution , 1996 provides a right
not to have one's person or property searched. That right is
limited by section 36 of the Constitution which states that
any of the rights in the Bill of Rights may be limited in terms
of a law of general application.
The effect of these provisions is that searches and
20
seizures of persons or property are unlawful unless justified
in terms of a law of general application. In this case, the
relevan t law is to be found in sections 20 and 21 of the
Criminal Procedure Act 51 of 1977, in terms of which a
search warrant may be issued to a police officer who
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establishes a reasonable belief that an offence has been, is
being, or is intended to be committed at particular
premises , and that items affording evidence of, or that are
being used to commit the offence, might be seized.
The basis on which the warrant in this case was
applied for , was that the applicant's premises , at 33 Main
Road, Newlands was being used for the purposes of illegal
gambling. The application for the warrant was placed
before the acting m agistrate and was supported by an
affidavit deposed to by the second respondent, Detective 10
Sergeant Rennie.
The question in this case is really whether that
affidavit was sufficient to justify the issuing of the warrant.
It does not matter in my view whether one draws the
inference from the affidavit that the magistrate failed to
apply his mind, or simply whether the magistrate could not
reasonably have issued the warrant on the basis of the
information contained in the affidavit. The result is the
same.
Detective Sergeant Rennie's affidavit is threadbare.
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It merely asserts that on four occasions, two, or perhaps
more , people went to the premises and saw illegal gambling
taking place there. Only one of the individuals, an
enforcement officer at the Gauteng Gambling Board , is
named, and he went to the applicant's premises on one
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occasion.
Undercover agents , who are not named , are said to
have v isited the premises on three other occasions. That is
the substance of the allegations contained in the affidavit
supporting the warrant. The question is whether the mere
assertion that illegal gambling was taking place at the
premises, albeit on four occasions, was sufficient to satisfy
the acting magistrate that Detective Sergeant Rennie had a
reasonable suspicion that this was happening and that
articles being put to illegal use or constituting evidence of
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an offence might be seized.
A reasonable susp icion is, of course, a fairly low bar,
but it seems to me that it necessarily implies that facts have
been brought to the applying officer's attention, from which
a suspicion that an offence is being committed may
reasonably be inferred . Those facts, it seems to me, cannot
merely be the bald assertion that the offence is being
committed in a particular place or at a particular time.
There must be primary facts that constitute , prima
facie , the commission of the offence. It was not enough for
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Detective Sergeant Rennie or the Magistrate to be informed
that certain other persons thought they saw illegal
gambling . N or was it enough for Detective Sergeant Rennie
to say to the magistrate that his suspicion was based on
another person’s subjective conclusion that illegal gambling
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was taking place .
What Detective Sergeant Rennie was required to do
was to acquaint himself with what exactly his informers said
was happening on the occasions that they visited the
premises. Once he was in possession of those primar y
facts, he could then make a judgment about whether the
activity described to him might reasonably constitute the
offence of illegal gambling.
It was then incumbent upon him to set those primary
facts out in his application for the warrant, and to state that
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it was on the basis of those primary facts , the actual
occurrences witnessed at the property , that he suspected
that the offence was being committed. None of this was
done.
This means either that the acting magistrate could not
reasonably have iss ued the warrant, or that the acting
m agistrate issued the warrant without applying his mind to
whether the suspicion alleged was in fact reasonable. In
those circumstances, there can be no basis for the warrant ,
and it must be set aside. 20
It was argued that both the failure to delete certain
phrases in the application for the warrant and the failure to
correctly quote the statute that creates the offence that the
applying officer suspected was being committed rendered
the warrant defective. I do not acc ept that proposition.