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[2014] ZAWCHC 22
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Minister of Police and Another v Auction Alliance (Pty) Ltd and Others (1761/2014) [2014] ZAWCHC 22; [2014] 2 All SA 432 (WCC) (28 February 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
No: 1761/2014
DATE:
28 FEBRUARY 2014
In the matter
between:
THE MINISTER OF
POLICE
.......................................................................
FIRST
APPLICANT
COLONEL DEVANDRI
PILLAY N.O
.....................................................
SECOND
APPLICANT
And
AUCTION ALLIANCE
(PTY)
LTD FIRST
.........................................................
RESPONDENT
RAEL
LEVITT
.....................................................................................
SECOND
RESPONDENT
SMIEDT &
ASSOCIATES
ATTORNEYS
.............................................
THIRD
RESPONDENT
ALAN
SMIEDT
...................................................................................
FOURTH
RESPONDENT
DALE
SMIEDT
.........................................................................................
FIFTH
RESPONDENT
GRANT ENGEL
N.O
................................................................................
SIXTH
RESPONDENT
ESTATE AGENCY
AFFAIRS BOARD
.............................................
SEVENTH
RESPONDENT
KPMG SERVICES
(PTY)
LTD.
...........................................................
EIGHTH
RESPONDENT
ACCOUNTANTS @ LAW
(PTY) LTD
..................................................
NINTH
RESPONDENT
Coram: ROGERS J
Heard: 26
FEBRUARY 2014
Delivered: 28
FEBRUARY 2014
JUDGMENT
ROGERS J:
Introduction
[1] This application
concerns the procedure to be followed in relation to various
documents, hard drives and the like which are
currently being
preserved pending the determination of an application for a search
warrant. The applicants are the Minister of
Police and Colonel D
Pillay. Save where a distinction is required, I shall refer to them
collectively as ‘SAPS’. The
1st respondent is Auction
Alliance (Pty) Ltd (‘AA’) and the 2nd respondent its
former managing director Rael Levitt
(‘Levitt’). The 3rd
respondent is the firm of attorneys that acts for them, Smiedt &
Associates Attorneys (‘SAA’),
while the 4th and 5th
respondents are Alan Smiedt and Dale Smiedt, respectively a partner
and professional assistant in the firm
(referred to hereafter as
Smiedt Snr and Smit Jnr respectively). The 6th respondent is Mr G
Engel, an acting magistrate serving
at the Cape Town Magistrate’s
Court. The 7th respondent is the Estate Agency Affairs Board (‘
the EAAB’), a regulatory
body created by the Estate Agency
Affairs Act 112 of 1976. The EAAB is the complainant in respect of
certain criminal charges laid
against AA and Levitt. The 8th and 9th
respondents respectively KPMG Services (Pty) Ltd (‘KPMG’)
and Accountants@Law
Pty Ltd.
The facts
[2] The background
to the matter is briefly as follows. On 7 August 2012 SAPS conducted
countrywide search and seizure operations
in respect of the criminal
investigation pursuant to warrants issued by various magistrates. On
8 August 2012 AA and Levitt, represented
by SAA, brought an urgent
application in this court to set aside the warrants executed at
premises in Cape Town and for the return
of the seized items. On 23
August 2012 the urgent application was resolved by a consent order
made by Stelzner AJ. In terms of
that order the warrants were
declared unlawful. The seized items were to be returned and retained
by SAA until Friday 7 September
2012. If a fresh application for a
search warrant was brought by that date (of which five court days’
notice to AA and Levitt
was required), the seized items were to be
retained by SAA pending the determination of the fresh application.
[3] Pursuant to that
order, the seized items were duly returned to SAA, whose offices are
at 1 Thibault Square in Cape Town. Pillay
and Smiedt Jnr oversaw this
process and co-signed an agreed list. The handover list comprised 119
sealed evidence bags with unique
serial numbers and a further item
comprising 21 boxes.
[4] The period for
the bringing of a fresh application was extended by agreement to 14
September 2012. On that date SAPS launched
an application in the Cape
Town Magistrate’s Court for a fresh search warrant in respect
of the seized items which were being
preserved at the offices of SAA.
Pursuant to receiving notice of the application (as required by the
order of Stelzner AJ), AA
and Levitt opposed the granting of a fresh
search warrant. This was done by way of answering papers. SAPS filed
a replying affidavit.
In the replying affidavit SARS sought inter
alia to meet some of the objections by amending the terms of the
proposed warrant.
SAA and Levitt then brought an application to
strike out certain material from the replying affidavit.
[5] The application
for the search warrant was argued before Mr Engel as an acting
magistrate on 18 and 19 April 2013. On those
days he heard argument
on certain preliminary questions raised by AA and Levitt regarding
the nature and form in which the application
had been brought and the
inclusion of supposedly new matter in reply. Upon conclusion of
argument the magistrate reserved his decision
and asked the parties
to file supplementary submissions on the preliminary questions. Those
submissions were duly filed. They are
annexed to the founding
affidavit in the present application. SAPS’ counsel argued in
their supplementary submissions that
the procedure for seeking a
search warrant was not an application in the usual sense and that
SAPS was thus entitled, if objections
were raised, to place
additional information before the magistrate and to amend the terms
of the proposed warrant. SAPS submitted
that the material in question
was in any event not objectionable and that if it were regarded as
new matter the appropriate course
would be to afford AA and Levitt an
opportunity to traverse it. The focus of the supplementary
submissions filed on behalf of AA
and Levitt was that the magistrate,
sitting as a ‘court’, had no jurisdiction to grant the
application. The argument
was that in terms of
s 21(1)(a)
of the
Criminal Procedure Act 51 of 1977
a magistrate considering an
application for a warrant does not sit as a court; but that SAPS had
avowedly approached the magistrate
by way of an application to court
in terms of
rule 55
of the Magistrate’s Courts Rules.
1
Their fall-back position was that, if the proceedings were properly
before the magistrate sitting as a court, he was bound to apply
the
usual rules regarding new matter in reply and should thus strike out
the supposedly new material (though that was not addressed
in the
supplementary submissions).
[6] By the time the
present application was launched on 6 February 2014 the acting
magistrate, Mr Engel, had not given judgment
on the preliminary
questions, and that remains the position. SAPS’ attorney wrote
several emails to Mr Engel over the period
August to November 2013.
The response was that the magistrate was endeavouring to finalise his
judgment but was battling to get
around to it because of his daily
workload. In an email he wrote on 17 October 2013 he mentioned that a
new problem had arisen,
namely that the Deputy Minister of Justice
was reluctant to extend the contracts of acting magistrates beyond
three months whereas
he (Mr Engel) had already been ‘on
contract’ for eight years. He suspected that his contract would
not be extended
and for that reason wished to finalise the judgment
before his contract was terminated. On 23 January 2014 he wrote to
SAPS’
attorneys saying that his contract had only been extended
to the end of February 2014 ‘as per the instructions of the
Deputy
Minister of Justice
’; that a
number of magistrates had already left the Department due to their
contracts not being extended; and that he would
be following suit. He
continued:
‘Having said
that, I am of the opinion that even if I give judgment on the matter,
it is highly improbable that we will get
all the parties together
before end of February to conclude this matter. In the circumstances,
it might be advisable to start with
the matter de novo before another
magistrate. A copy of this email is also sent to Senior Magistrate
Maku, as well as Chief Magistrate
Dimbaza.
I do apologise for
the inconvenience, but unfortunately, there is nothing I can do under
the circumstances.’
[7] That the delay
in giving judgment is entirely unacceptable needs hardly be said.
This delay, and the possibility that judgment
will never be given,
are the major contributing factor to the bringing of the present
application in the high court. Since I do
not know the circumstances
under which magistrates operate in the Cape Town Magistrate’s
Court, it would not be fair to apportion
blame in this judgment nor
is it necessary to do so.
[8] SAPS decided, in
the light of Mr Engel’s letter of 23 January 2014, to prepare a
fresh application for a warrant and to
request the Chief Magistrate
to have it placed before a new magistrate, again giving AA and Levitt
five days’ notice. In
the meanwhile, however, and on the same
day as Mr Engel wrote his letter, SAA notified SAPS’ attorneys
that over the last
few weeks members of the firm had moved the
preserved items around in the firm’s storage facilities to make
way for other
material; that some of the evidence bags were torn; and
that SAA was not sure whether these tears were new. They thus invited
SAPS
to conduct an inspection.
[9] The inspection
was conducted by Pillay with two colleagues on 29 and 30 January
2014. It is unnecessary to go into the detail.
Although some of the
evidence bags which had previously been intact were now found to be
torn, this seems to have been because
their contents were very heavy.
The contents were repacked into smaller exhibit bags and re-sealed.
The real point of concern for
SAPS was that six evidence bags which
had been on the signed handover list could no longer be found. These
bags contained computer
hard drives. SAPS regards their loss as a
serious blow to the criminal investigation.
[10] A combination
of the magistrate’s letter of 23 January 2014 and the results
of the inspections on 29 and 30 January 2014
led SAPS on 6 February
2014 to launch the present application for urgent hearing on 7
February 2014. The relief sought in the original
notice of motion was
in summary the following: that the items currently being preserved at
the offices of SAA be removed to and
retained by KPMG pending the
final determination of an application for a search warrant (prayers 2
or 3); that SAPS be directed
to bring a fresh application for a
search warrant within 30 days, subject to the rights of AA and Levitt
to be given notice of
the application and to challenge any warrant
issued in accordance with the earlier order of Stelzner AJ (para 4);
and that a rule
nisi be issued calling on the respondents to show
cause why SAA and the two Smiedts should not be found in contempt of
court (para
7).
[11] On the
following day, 7 February 2014, Ndita J made an order on the
application by consent. Paras 2 and 3 of the order made
provision for
the transfer of the preserved items from SAA to KPMG and for the
retention of those items by KPMG until the final
determination of an
application for a search warrant in accordance with the provisions of
para 4 of the order. Para 4 of the order,
which was in the form of a
rule nisi returnable on 26 February 2013, was an elaboration of para
4 of the notice of motion, in that
it introduced three different
ways, in the alternative, in which the application for a search
warrant might be finalised: (i) The
first option was in line with the
original notice of motion, and contemplated an order that SAPS bring
a fresh application for
a search warrant within 30 days. (ii) The
second option was that SAPS present the papers in the existing
warrant application to
the Chief Magistrate with a request that it be
allocated to a new magistrate for determination as soon as
practically possible.
(iii) The third option was that Mr Engel be
directed to deliver his ruling on the preliminary questions within 10
days and thereafter
to ensure that the other issues in the
application were dealt with and that a final decision on the
application be made as soon
as practically possible. Ndita J’s
order contained a separate rule nisi, returnable on 27 May 2014, in
regard to the contempt
relief.
[12] There is no
remaining dispute regarding the transfer of the preserved items from
SAA to KPMG. The dispute regarding contempt
is not before me and will
be determined later. I am only concerned with the relief sought in
para 4 of the rule nisi. This involves,
in effect, the choice of one
of the three options previously summarised. SAPS argues for option
(i), supported by the EAAB. AA
and Levitt, by contrast, contend that
option (iii) is to be preferred, alternatively that option (ii) is
more appropriate than
option (i).) Mr A Breitenbach SC, leading Ms A
Erasmus and Ms G Goosen, appeared for SAPS; Mr M Hellens SC appeared
for the EAAB;
and Mr Katz SC and Mr Rosenberg SC appeared for AA and
Levitt respectively, in each case leading Mr D Simonsz.
Urgency
[13] AA and Levitt
contended in their answering papers that the application was not
urgent. This was not pressed in argument, save
in relation to the
costs of the appearance on 7 February 2014. I shall deal with costs
at the end of this judgment.
The merits
[14] Counsel for AA
and Levitt submitted that option (i) was not competent. Originally AA
and Levitt’s contention to this
effect in their answering
papers was based on the fact that there is an existing application in
the Cape Town Magistrate’s
Court which has not been withdrawn
and in regard to which judgment on preliminary issues is awaited, so
that a new application
would contravene the lis pendens principle. In
its replying papers SAPS made explicit what I think was obvious in
para 4.1 of the
rule nisi, namely that the fresh application will be
brought before a different magistrate, not Mr Engel; and has also
said that
upon the bringing of the fresh application SAPS will
deliver a notice withdrawing the pending application. SAPS proposes
that these
matters be incorporated in the court’s order.
Counsel for AA and Levitt conceded in their written argument that
this disposed
of the lis pendens objection.
[15] They
nevertheless submitted that option (i) would be subversive of the
judicial process: the parties were entitled to a judgment
on the
existing application. They also submitted that option (i) would
result in a wasting of all the time and effort which the
parties had
put into the pending warrant application. Apparently the papers in
that matter run to more than 1 000 pages. SAPS,
AA and Levitt, and
the EAAB were each represented by senior and junior counsel at the
hearing before Mr Engel.
[16] I do not
consider that either of these considerations is a bar to the adoption
of option (i). A respondent is not invariably
entitled to a judgment.
It is open to an applicant to withdrawn an application. In terms of
option (i) as varied, the bringing
of the new application will have
to be accompanied by a withdrawal of the pending application. As to
the costs of the withdrawn
application, I do not think that a
magistrate has jurisdiction to make a costs order in relation to
proceedings governed by
s 21(1)(a)
of the
Criminal Procedure Act. A
magistrate only has such powers as are conferred on him or her by
legislation. I have not been able to find any statutory provision
which would empower a magistrate to grant an order in favour of or
against SAPS in relation to an application for a warrant in
terms of
s 21(1)(a).
2
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2
Be that as it may, if AA and Levitt consider that they are entitled
to costs, that can be argued in due course, either before Mr
Engel or
before another magistrate. (Mr Breitenbach in open c
ourt tendered an
alternative procedure to deal with costs, namely an arbitration on
whether costs could be ordered in
s 21(1)(a)
proceedings and if so
what the appropriate costs order in this case would be.) Whether the
fact that the costs of the first application
remain unresolved means
that a defence of lis pendens could be raised to a new application is
by no means clear; the relevant lis
has to with the substantive
relief claimed, not costs. In any event, lis pendens is not an
absolute defence; the court may in its
discretion allow a second
application despite the fact that there is a pending first
application (Janse van Rensburg & Others
NNO v Steenkamp &
Another
2010 (1) SA 649
(SCA) paras 31-35; Herbstein & Van
Winsen The Civil Practice of the High Court of South Africa 5th ed at
313). The unusual
circumstances of the present matter may well
justify a discretion to allow a fresh application, even if the first
application has
not been fully resolved.
[17] The objection
that the time, energy and costs relating to the first application
will be wasted also does not impress me. The
papers in the
application currently pending before Mr Engel have mercifully not
been placed before me. However, it is safe to assume
that in large
part they deal with the merits of the matter, namely whether, as
contemplated in
s 21(1)(a)
of the
Criminal Procedure Act, there
are
reasonable grounds, appearing from information on oath, for believing
that the items in question are at the premises from which
SAPS wishes
to take them and that the items are of a kind contemplated in
s 20.
The material in the current papers relating to these matters will
remain relevant to the fresh application. I was told that, because
of
the disappearance of the six evidence bags containing the computer
hard drives, material in the original application and in
the proposed
warrant relating to these particular items will fall away in a new
application.
[18] The two days
spent in argument before Mr Engel were devoted not to the merits but
to matters which in all probability will
not feature in a fresh
application. SAPS will no doubt make clear in the fresh application
that it is approaching the magistrate
in the capacity contemplated in
s 21(1)(a)
of the
Criminal Procedure Act, and
SAPS will eschew forms
and language which suggest that it is invoking the ordinary
jurisdiction of the magistrate as a court pursuant
to
rule 55.
SAPS
will from the outset in the new application modify the terms of the
proposed warrant (as it did in the replying papers in
the earlier
application) so as to meet the objections raised by AA and Levitt.
SAPS will now include in its founding papers any
new material which
may impermissibly have been included in its replying papers in the
old application. AA and Levitt will have
a full opportunity to
traverse these matters in their answering papers in the new
application. The magistrate who hears the new
application will thus
in all prob
ability not need to
decide the preliminary matters which Mr Engel was called upon to
decide. Those preliminary matters are in truth
a distraction.
[19] Counsel for AA
and Levitt submitted in their heads of argument, with reference to
Thint (Pty) Ltd v NDPP; Zuma v NDPP &
Others
2009 (1) SA 1
(CC),
that the preservation of unlawfully seized items is an exceptional
remedy, the usual position being that such items should
be returned
to the person from whom they were taken and whose privacy was
unlawfully violated. I do not need to express a final
view on
counsel’s characterisation of preservation as exceptional
though it does not appear to accord with para 223 of the
Thint
judgment. In the present case the parties agreed, by way of the order
made by Stelzner AJ, that preservation would apply
in this case, and
that the items would be preserved pending the determination of an
application for a warrant. Nothing has changed,
and indeed AA and
Levitt accept that there should be a final determination of a new
application. The only difference between them
and SAPS is that they
want the pending application before Mr Engel to be finally determined
by way of either option (iii) of (ii)
whereas SAPS, because of the
lengthy delay which has characterised the pending application and
because of Mr Engel’s imminent
departure from judicial office,
want a fresh application to a magistrate to be determined (ie option
(i)).
[20] Not only is
option (i) a permissible one but it is also to my mind the preferable
course to follow. Option (iii) would entail
a direction to Mr Engel
that he give judgment on the reserved questions within 10 days and
that he then expeditiously determine
the remaining issues in the
application. The fact that Mr Engel will apparently cease to be a
magistrate at the end of February
2014 does not necessarily mean that
he could not, after that date, give judgment on the preliminary
questions and then (if he did
not dismiss the application) hear the
application on its merits.
Section 9(6)
of the
Magistrates’
Courts Act 32 of 1944
provides that an acting magistrate shall also
deemed to have been appointed ‘in respect of any period during
which he or
she is necessarily engaged in connection with the
disposal of any proceedings – (a) in which he or she has
participated as
such a magistrate… ; and (b) which have not
yet been disposed of at the expiry of the period for which he or she
was appointed’.
Whether he could still issue the warrant would
depend on whether an application for a warrant in terms of
s 21(1)(a)
of the
Criminal Procedure Act constitutes
‘any proceedings’
as contemplated in
s 9(6)
of the
Magistrates’ Courts Act or
whether that phrase is confined to civil and criminal proceedings.
There is at very least some uncertainty on that question. It
is also
uncertain whether a judge can, in the absence of review proceedings,
direct a magistrate to deliver a judgment within a
specified period
of time.
[21] In any event,
ten months have passed since Mr Engel reserved judgment. This is an
unacceptable delay in itself. If he was unable
to produce a judgment
within ten months, there is no reason to believe that he will now be
able to do so within ten days. Furthermore,
the emails which Mr Engel
has sent to SAPS’ attorneys strongly suggest that he will not
deliver a judgment, given that his
appointment does not to extend
beyond February 2014. The practical reality appears to be that he
will not deliver a judgment. I
am aware, in this regard, that
questions have sometimes arisen concerning the remuneration of acting
judicial officers who are
required to spend substantial time on
part-heard matters after the termination of their acting
appointments. If Mr Engel considers
that he will be inadequately
remunerated for the further time he will have to spend on the matter,
this might be further cause
for delay.
[22] Moreover, the
judgment which is awaited from Mr Engel is a judgment on preliminary
issues which, if a fresh application were
made, would in all
probability not arise. In those circumstances, to require Mr Engel
now to decide them, after the termination
of his acting appointment,
strikes me as an exercise in futility. Judicial resources would be
better served in getting on with
the merits of the case. Insofar as
the merits are concerned, the retention of Mr Engel in the case
presents no advantages. He will
still need to hear argument on the
merits. That may as well be done by a new magistrate with a current
appointment rather than
by Mr Engel, who is likely to be completely
demotivated. It may be said that Mr Engel is steeped in the matter.
Given that he heard
argument only on preliminary matters, I do not
know whether Mr Engel read his way fully into the merits of the case.
Even if he
did, the details are likely to have gone from his mind
after what will be a period of more than one year.
[23] Option (ii) is
also unsatisfactory. Although, in terms of that option, the matter
would be placed before a magistrate with
a current appointment, the
new magistrate would – on the pending application in its
current form – need to re-hear
argument on the same preliminary
issues with which Mr Engel was entertained on 18 and 19 April 2013.
Only after giving judgment
on those issues could the new magistrate
proceed to the merits of the matter. I have already indicated that
the preliminary issues
which have bedevilled the pending application
are a sideshow and that it would be an inefficient use of judicial
resources to compel
a decision on them if a different and more
efficient procedure is available.
[24] Although option
(i) will mean that AA and Levitt will have spent money in vain on
preliminary objections which will probably
not remain relevant in a
fresh application, they will be entitled, if they so wish, to argue
the wasted costs incurred before Mr
Engel or another magistrate.
[25] Even if an
application to a magistrate for a warrant in terms of
s 21(1)(a)
of
the
Criminal Procedure Act were
regarded as an ordinary civil
proceeding, I would, for the reasons stated above, conclude that
option (i) is to be preferred. In
my view, however, a
s 21(1)(a)
application does not constitute civil proceedings, and the
Magistrates’ Courts Rules governing civil actions and civil
applications
do not apply. Ordinarily the party to be searched is not
given notice. A magistrate who authorises the issue of a warrant is
not
required to give a judgment or reasons. His decision to issue the
warrant is not subject to appeal though, like other exercises
of
public power, it may be taken on review (at which point the
magistrate may need to furnish reasons in defence of his decision).
An application for a search warrant in terms of s 21(1)(a) may be
made not only to a magistrate but also to a justice of the peace.
The
nature of the function is the same whether the functionary is a
magistrate or a justice. One is not concerned with court proceedings
but with the exercise of a discretion vested in a public functionary,
albeit of a judicial character (see Thint supra paras 89-93).
[26] In the present
case the parties agreed, by way of Stelzner AJ’s order, that AA
and Levitt would be given five court days’
notice of the
bringing of the application for a warrant. Stelzner AJ’s order
did not itself set out a procedure for answering
and replying papers.
The parties seem of their own accord to have followed the rule 55
procedure as a pragmatic way of placing
their respective contentions
before the magistrate. That cannot change the nature of the function
performed by a magistrate in
terms of s 21(1)(a) of the Criminal
Procedure Act. Stelzner AJ’s order contemplated the usual
application to a magistrate
or justice for a search warrant.
[27] The proper
characterisation of s 21(1)(a) proceedings substantially undermines
the basis of the opposition by AA and Levitt
to option (i), since the
opposition is largely based on treating the pending application
before Mr Engel as a civil application
governed by the ordinary rules
relating to the filing of affidavits and on which AA and Levitt are
entitled to a judgment (including
a judgment on the interlocutory
application for striking-out) and in which they would, if successful,
be entitled to costs. The
true position, I conceive, is that a
magistrate dealing with a s 21(1)(a) request does not sit as a court
in civil proceedings.
The magistrate is entitled to receive or call
for additional information and to make modifications to the proposed
warrant in order
appropriately to balance the public interest in
criminal investigations on the one hand and the privacy of the person
to be searched
on the other hand and to ensure that the warrant
complies with the requirements laid down in leading cases (cf Van der
Merwe &
Others v Additional Magistrate, Cape Town & Others
20
10 (1) SACR 470
(C) paras 45 and 48). The rules governing civil
applications heard by a magistrate sitting as a court do not apply.
The magistrate
in s 21(1)(a) proceedings must follow whatever
procedure he thinks appropriate to determine whether a search warrant
should be
issued. If the party to be searched has notice of the
application (this will not be the norm) and if such party places
evidence
and submissions before the magistrate, the magistrate must
no doubt in fairness take them into account. However, he is not
required
to give decisions on objections made in interlocutory form
(such as a striking-out application). He must simply follow a fair
procedure
and, when he concludes that he has heard enough, decide
either to issue the warrant or not issue it. Like a justice to whom a
s
21(1)(a) request has been made, he is not required to deliver a
judgment with reasons nor does he have the power to make a costs
order. Submissions regarding the cogency and admissibility of
evidence and the like will simply be taken into account in his final
decision.
[28] Counsel for AA
and Levitt placed considerable emphasis on the fact that the order of
Stelzner AJ was the product of agreement
between the parties. In the
ordinary course, AA and Levitt would, if the original search warrants
were invalid, have been entitled
to the return of their documents and
other items. They agreed instead to a preservation order (and also
agreed, in the proceedings
before Stelzner AJ, to bear their own
costs) but such agreement was specifically on the basis that an
application for a search
warrant had to be brought by 7 September
2012 (later changed to 14 September 2012), failing which they would
be entitled to the
return of the preserved items (or more accurately,
the duty to preserve would fall away). The application brought by
SAPS on 14
September 2012 was the application contemplated by
Stelzner AJ’s order and was the application which thus kept the
agreed
duty to preserve alive. Counsel submitted that I should show
as much fidelity as possible to the terms of the agreed order made
by
Stelzner AJ. This would be best achieved by following option (iii),
alternatively option (ii). To link continued preservation
to a fresh
application, ie option (i), would be an invasion of the privacy of AA
and Levitt which was not what the parties had
agreed.
[29] This argument
was advanced in tandem with an argument that the application in the
form in which SAPS brought it on 14 September
2012 was, in effect, a
straitjacket; any material alteration in the form of the proposed
warrant after that date, and any material
information adduced in
support of the warrant after that date, changed the substance of the
application, so that it no longer qualified
as the application
contemplated in Stelzner AJ’s order. This would mean that the
seized items would no longer have to be
preserved, even though SAPS
might be entitled (outside the framework of Stelzner JA’s
order) to pursue its request for a
warrant.
[30] Although
Stelzner AJ made his order by agreement, the order is nonetheless an
order of the court and must be construed as such.
The order’s
reference to the final determination of an application for a search
warrant plainly meant an ordinary s 21(1)(a)
application with the
character I have described earlier. The application brought by SAPS
on 14 September 2012 was an application
for a search warrant relating
to the 120 items on the handover list. It retained that character,
notwithstanding the adducing of
further evidence in reply and the
modification of the terms of the proposed warrant. I thus have no
doubt that if a decision to
issue a warrant were in due course made
on the existing application (whether by Mr Engel or a new
magistrate), it would be the
final determination of the application
contemplated in Stelzner AJ’s order. And for the same reason I
have no doubt that,
pending such decision, the preservation for which
Stelzner AJ’s order provides would remain binding.
[31] The difficulty
is that there is no realistic prospect that Mr Engel will give a
decision on the s 21(1)(a) application and
it is not even certain in
law that he will be entitled to do so after the termination of his
acting appointment. It is thus clear
that some alteration to the
order made by Stelzner AJ is required. The relevant provisions of his
order are procedural in nature
and are thus subject to revision by
this court if circumstances demand, as indeed they do. This really
leaves one with a choice
between options (i) and (ii). As a matter of
form, it is correct – as counsel for AA and Levitt contended –
that option
(ii) seems more closely to adhere to the procedure
contemplated in Stelzner AJ’s order, because the application
brought within
the original time-limit laid down in his order would
still be decided, albeit by a different magistrate. In substance,
however,
option (ii) is not closer to the regime contemplated in
Stelzner AJ’s order than option (i). Because of the true
character
of s 21(1)(
a) proceedings, a
magistrate hearing the existing application pursuant to option (ii)
could not permissibly strike out supposedly
new material as if the
application were an ordinary civil proceeding before a court. The
magistrate could even now receive further
evidence regarding
developments since April 2012. Option (ii) will require there to be
placed before a new magistrate an unwieldy
and out-of-date
application which will have to be supplemented and modified to
account for later developments. It would be far
preferable to place
before a new magistrate a fresh application which incorporates in
logical order all the material which SAPS
now wishes to rely upon (ie
such material as was before the magistrate in April 2012 to the
extent that it remains germane, together
with any other relevant
material which has become available to SAPS since April 2012) and
which excises from the current application
the material specifically
relating to the six items of evidence which have disappeared and
which will thus no longer feature in
the proposed search warrant.
[32] It was
repeatedly submitted to me by counsel for AA and Levitt that SAPS was
only seeking the relief they now do because SAPS
did not like the
outcome of the ‘trigger mechanism’ for which the Stelzner
AJ order made provision. It was suggested
to me, in a colourful
expression, that SAPS had ‘pulled the trigger’ (ie issued
an application for a warrant by 14
September 2012) but had ‘shot
a blank’. I do not accept this criticism of SAPS. There was
nothing wrong with the mechanism
contained in the Stelzner AJ order
or with the manner in which SAPS acted upon it. If the application
brought by SAPS to the magistrate
on 14 September 2012 had been dealt
with properly, promptly and with due regard to the true character of
the s 21(1)(a) function,
SAPS should long since have had a decision
on the issuing of the warrant one way or the other. The mechanism
contemplated in Stelzner
AJ’s order failed because of a failure
on the part of the magistrate, though to some extent the parties may
themselves have
led him astray by allowing the request for a warrant
to become enmeshed in the inappropriate trappings of a court
application.
[33] I appreciate
that the views I have expressed regarding the character of s 21(1)(a)
proceedings effectively answer certain of
the questions argued before
the magistrate. However, the correct characterisation of a s 21(1)(a)
application is a relevant consideration
in the proceedings before me
and it is for that reason that I have expressed views thereon. Those
views may also be of some assistance
when a new magistrate comes to
deal with the application for a warrant.
[34] One of the
points argued before Mr Engel was the admissibility of a statement
made by Levitt to the National Consumer Commission
pursuant to
s 102
of the
Consumer Protection Act 68 of 2008
. I was not addressed on the
merits of that point and I express no opinion on it. I do not doubt
that where an application for a
search warrant is opposed, the
opposing party may make submissions to the magistrate regarding the
admissibility of SAPS’
evidence. If Levitt’s statement is
included in the new application, AA and Levitt can make submissions
regarding its admissibility
to the magistrate pursuant to option (i).
(Even if option (ii) were followed, the new magistrate would need to
re-hear argument
on that question.) Those submissions, together with
others, will be taken into account by the magistrate when he or she
makes a
final decision on whether a case for the issuing of the
warrant has been made out.
Conclusion
[35] For all these
reasons I consider that an order should be granted in terms of para
4.1 of the rule nisi, amended in the manner
indicated in the replying
papers. I sincerely hope that the fresh application is dealt with
expeditiously, having regard to the
true character of
s 21(1)(a)
proceedings.
[36] SAPS does not
seek costs at this stage. It asks that those costs stand over for
later determination.
[37] Counsel for AA
and Levitt submit that they should at this stage at least be awarded
the costs of the proceedings on 7 February
2014. They contended that
the order sought in para 4 of the original notice of motion, which
was not in the form of a rule nisi,
was not justifiably sought on
such short notice. However, para 4 was part of a broader application.
SAPS’ discovery that
the items stored at SAA’ offices had
not been faithfully preserved justified urgent action. Pillay
obtained final confirmation
on 3 February 2014 from Smiedt Jnr that
the missing items could not be found, and the present application was
launched on 6 February
2014. Since the original undertaking to
preserve the seized items had, for whatever reason, proved
insufficient, I do not think
that SAPS was obliged to rely on a
further undertaking. SAPS was entitled to bring the matter to a head
by an urgent application.
[38] It is true
that, in relation to the further conduct of an application for a
search warrant, SAPS in the original notice of
motion sought an
immediate order corresponding in essence with option (i). However,
the parties were able on 7 February 2014 to
refine the various
possibilities for finalising the warrant application. This was not
time wasted. Since SAPS was in any event
entitled to come to court as
a matter of urgency on 7 February 2014, I do not think it likely that
the failure to formulate para
4 as a rule nisi in the original notice
of motion materially increased the costs incurred by AA and Levitt.
[39] I am thus
disinclined to make any costs order at this stage. All questions of
costs should stand over. AA and Levitt will be
entitled, when the
costs of the application as a whole come to be considered, to submit
that they should be awarded wasted costs
in respect of 7 February
2014.
[40] I make the
following order:
[a] In this order
the expression ‘the seized items’ has the meaning stated
in para 2 of this court’s order (per
Ndita J) dated 7 February
2014.
[b] Pursuant to the
order referred to in [a] above, the applicants are directed to bring
a fresh application, before a magistrate
in the District of Cape Town
other than the sixth respondent, for a search warrant pertaining to
the seized items within 30 days:
provided that such application shall
be subject to paras 5 and 6 of the order of this court (per Stelzner
AJ) dated 23 August 2012
in case 15482/2012; and provided further
that, when bringing such application, the applicants shall deliver a
notice withdrawing
the application for a search warrant pertaining to
the seized items which up to now has served before the sixth
respondent.
[c] The costs of
this application to stand over for later determination.
ROGERS J
APPEARANCES
For Applicants:
Mr A Breitenbach SC & Ms A Erasmus &
Mr G Goosen
Instructed by:
State Attorney
Mr L Manuel
Cape Town
For First
Respondent: Mr Katz A SC & Mr D Simonsz
Instructed by:
Smiedt &
Associates
Cape Town
For Second
Respondent Mr S Rosenberg SC & Mr D Simonsz
Instructed by:
Smiedt &
Associates
Cape Town
Seventh
Respondent: Mr M Hellens SC
Instructed
by:
A B Scarrott
Attorneys
c/o Knowles
Husain Lindsay Inc
10th floor, 2
Long Street
Cape Town
1
Rule
55 of
the Magistrates' Courts Rules is the general rule governing
applications in that court. Sub-rule (1)(a) commences: ‘Every
application shall be brought on notice of motion supported by an
affidavit as to the facts upon which the applicant relies for
relief.'
2
Section
48
of the
Magistrates' Courts Act 32 of 1944
empowers a magistrate's
court to grant a just costs order as a result of the 'trial of an
action'.
Section 80(1)
refers to the costs of 'any civil proceedings
in magistrates' courts'. Rule 33(1) of the Magistrates' Courts Rules
provides that
‘[t]he court in giving judgement or in making
any order, including any adjournment or amendment, may award such
costs as
it deems fit'.