About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2014
>>
[2014] ZAWCHC 180
|
|
Auction Alliance (Pty) Ltd and Another v Minister of Police and Others (8324/2014) [2014] ZAWCHC 180 (3 December 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
Case
No 8324/2014
DATE:
03 DECEMBER 2014
In the matter
between:
AUCTION ALLIANCE
(PTY) LTD
..........................................
First
Applicant
RAEL
LEVITT
......................................................................
Second
Applicant
And
THE MINISTER OF
POLICE
................................................
First
Respondent
COLONEL DEVANDRI
PILLAY N.O
................................
Second
Respondent
KPMG SERVICES
(PTY) LTD
..............................................
Third
Respondent
ACCOUNTANTS @ LAW
(PTY) LTD
.................................
Fourth
Respondent
Court: RILEY AJ
Heard: 4 November
2014
Delivered: 3
December 2014
JUDGMENT
RILEY AJ:
[1] The first
applicant (Auction Alliance) and the second applicant (Levitt), (‘the
applicants’) and others, are being
investigated by the South
African Police Services (‘SAPS’) for a wide range of
suspected serious offences including,
but not limited to, fraud
and/or contraventions of the
Prevention and Combating of Corrupt
Activities Act 12 of 2004
as well as other related offences allegedly
perpetrated by employees of Auction Alliance and related parties.
[2] The present
matter concerns the correct interpretation of the Order of this court
by Stelzner AJ dated 23 August 2012 (‘the
Stelzner AJ order’).
[3] The Stelzner AJ
order was made an order of court by agreement between the parties.
The order reads as follows:
‘Pursuant to
an agreement of settlement reached between the Applicants and the
First Respondent (the Second Respondent abiding
the decision of the
Court), the following order is made:
1. The search
warrants issued by the Second Respondent in respect of the following
premises in Cape Town, namely:
1.1 the First
Applicant’s business premises at 2nd floor, The Block, 51 Wale
Street;
1.2 the Second
Applicant’s residence at 101 Mouille Sands, Bay Road, Mouille
Point;
1.3 the business
premises of Accountants@Law (Pty)Ltd at 4th floor, Hout Street
Studios, 37 Hout Street; and
1.4 the business
premises of KPMG at MSC House, 1 Mediterranean Street, Foreshore, are
declared unlawful and invalid.
2. Subject to what
follows, by 16h00 on Friday 24 August 2012 at the latest the First
Respondent will return all of the items seized
on Tuesday 7 August
2012 during the searches of the premises mentioned in paragraphs 1.2
to 1.4 above (it being recorded that nothing
was seized at the
premises mentioned in paragraph 1.1 above) and from the following
further premises:
2.1 the First
Applicant’s offices at:
2.1.1 21 Kellner
Park, 63-67 Kellner Street, Westdene Bloemfontein
2.1.2 294 Main
Street, Paarl;
2.1.3 135 Cape
Road, Mill Park, Port Elizabeth;
2.1.4 17 Scott
Street, Waverley, Johannesburg;
2.2 The residence of
Shaie Zindel at 25 11th Avenue, Lower Houghton, Johannesburg;
2.3 the business
premises of Gruzd Zets & Company (auditors of Merobex (Pty) Ltd)
at 43 Chester Road, Parkwood, Johannesburg;
and
2.4 the offices of
Accountants@Law (Pty) Ltd at Unit 22, Villa Toscana, 25 Mellville
Road, Hyde Park Extension 2, Sandton.
3. In amplification
of paragraph 2 above:
3.1 The items
seized from the premises described in paragraphs 1.2, 1.3, 2.1, 2.2
and 2.4 above, together with the mirror images
made by the South
African Police Service (“SAPS”) of the three laptops
seized from the premises described in paragraph
2.4 above, will be
delivered to the office of the Applicants’ attorneys of record,
namely Smiedt & Associates, 19th Floor,
Thibault Square, Long
Street Cape Town. These items will be accompanied by a copy of the
affidavit given by the SAPS to the Second
Respondent in support of
the application for the search warrants referred to in paragraph 1
above. For the avoidance of doubt,
the laptops and external hard
drives themselves seized from the premises described in paragraph 2.4
above are excluded from the
ambit of this order, as these have
already been returned to the offices of Accountants@Law (Pty) Ltd.
3.2 The items
seized from the business premises of KPMG described in paragraph 1.4
above, will be returned to them at those premises.
3.3 The items
seized from the business premises of Gruzd Zets & Company
described in paragraph 2.3 above, will be returned
to them at those
premises.
4. Smiedt and
Associates will retain the returned items referred to in paragraph
3.1 above in their sealed exhibit bags until Friday
7 September 2012
or until the final determination of any application(s) brought before
that date for a subpoena(s) or a search
warrant(s) pertaining to the
returned items.
5. If any such
application(s) is brought, the Applicants (and Accountants@Law (Pty)
Ltd and Mr Zindel, if the application(s) encompasses
materials seized
from their premises) will be given at least five court days’
prior notice of the date and time when the
application(s) will be
moved and will be entitled to oppose the granting of the
application(s).
6. If any such
application(s) is granted by a judicial officer other than a Judge of
the High Court, the Applicants (and Accountants@Law
(Pty) Ltd and Mr
Zindel) will be given at least five court days to challenge it in the
High Court, i.e. the warrant will not be
executed or the subpoena
will not be enforced until five days have elapsed after it has been
granted.
7. Paragraphs 5 and
6 above will also apply to any application(s) brought for a
subpoena(s) or a search warrant(s) pertaining to
the items referred
to in paragraphs 3.2 or 3.3 above, save that the other persons to
whom notice will be given and who will be
entitled to oppose will be
KPMG and Gruzd Zets & Company. In the case of the items at KPMG,
notice will also be given to the
attorneys of record for the
respondents in Western Cape High Court case number 4850/2012, namely
the Estate Agency Affairs Board
(“EAAB”), the Minister of
Trade and Industry and the Minister of Finance, as well as to the
administrator of the EAAB
Mr Taswell Papier.
8. In order to
obviate the need for such applications for subpoenas and search
warrants, on or as soon as possible after Monday
27 August 2012 the
First Respondent will make a “without prejudice” written
proposal to the Applicants about the terms
on which it proposes it be
given access to the seized materials or some of them, including
mechanisms for identifying materials
stored on computers or the like
which are not relevant to the investigation and for resolving any
disputes about privilege. The
parties will use their best endeavours
to reach agreement, provided that no such agreement in respect of the
data contained on
the mirror images of the laptops and external hard
drives seized from the premises described in paragraph 2.4 will be
valid and
enforceable unless Accountants@Law (Pty) Ltd also consents
thereto, it being recorded that such data includes confidential
material
relating to other clients of Accountants@Law (Pty) Ltd.
9. All parties will
carry their own costs.’
[4]In effect, the
applicants apply for orders declaring, that paragraphs 4 and 6 of the
Stelzner AJ order prevent the first and
second respondents (‘SAPS’)
from executing the search warrant, issued on 2 May 2014 by Mr Human,
District Court Magistrate
at Cape Town, pending the final
determination of the applicants’ intended appeals against an
unsuccessful application they
brought in this court for judicial
review of the issuing of the warrant.
THE FACTS
[5] The facts and
background to the present application have been ventilated in several
applications which have been brought by
the applicants in this court.
Since there is no evidence on the papers that the background facts as
set out by Colonel Pillay of
SAPS, in the SAPS answering affidavit,
is demonstrably and clearly unworthy of credence, I shall for the
purposes of the determination
of this application accept the factual
account of Colonel Pillay as correct. For the sake of convenience, I
will accordingly incorporate
herein the chronology of the events
succinctly summarised in the first and second respondents’
heads of argument.
[6] On 7 August 2012
SAPS conducted country-wide searches pursuant to search warrants
issued by various magistrates in terms of
ss 20 and 21 of the
Criminal Procedure Act 51 of 1977 (‘the CPA’). On 8
August 2012 the Applicant brought an urgent
application in this
court, under case number 15482/12, for a range of relief including
orders setting aside the issuing of four
of those search warrants
issued by a magistrate in Cape Town and requiring the SAPS to return
the seized items to the Applicants’
attorneys Smiedt &
Associates (‘Smiedts’). Following discussions and
correspondence between the parties’
representatives on 23
August 2012, the matter was settled and the terms of the settlement
were embodied in the Stelzner AJ order
(supra) which provided for,
amongst other things, the setting aside of the four search warrants,
the return by the SAPS to the
Smiedts of both the items seized under
the warrants, and certain further items seized elsewhere as well as
the return to the third
respondent (‘KPMG’) of certain
further items seized
from its premises in Cape Town. Then followed paragraphs 4, 5 and 6
of the Stelzner Order, which are relevant
to the determination of the
present application.
[7] On 6 September
2012 Smiedts extended to 14 September 2012 the date of 7 September
2012 mentioned in paragraph 4 of the Stelzner
Order. On 14 September
2012 the SAPS applied in the Magistrates’ Court, Cape Town for
search warrants pertaining to the items
returned to Smiedts and to
KPMG (‘the first warrant application’). The first warrant
application was never determined
because the acting magistrate to
whom it had been allocated, Mr Engel, left the magistracy without
doing so.
[8] On 28 February
2014 this court (per Rogers J), following an application by the SAPS
which was opposed by Auction Alliance and
Levitt, made an order
directing the SAPS:
‘… to
bring a fresh application, before a magistrate in the District of
Cape Town other than [Magistrate Engel], 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 [the
Stelzner Order]; and provided further
that, when bringing such
application, SAPS shall deliver a notice withdrawing the application
for a search warrant pertaining to
the seized items which up to now
has served before [Magistrate Engel] (‘the second warrant
authorisation order’).’
I pause to mention
at this stage that the applicants unsuccessfully applied, in this
Court, the Supreme Court of Appeal (‘SCA’)
and the
Constitutional Court (‘CC’), for condonation for the late
bringing of an application for leave to appeal against
the second
warrant authorisation order.
[9] Following a
report by Smiedts to the SAPS that certain of the returned items in
their custody had gone missing, this court (per
Ndita J) made an
order by agreement between the parties on 7 February 2014,
authorising the transfer of the returned items to KPMG
for
safekeeping until the final determination of the application for a
fresh search warrant.
[10] On 2 April 2014
the SAPS delivered to Smiedts the fresh application for a search
warrant (‘the second warrant application’)
and indicated
that it would be made on 9 April 2014 to a newly-allocated
magistrate, namely Magistrate Human, in chambers, along
with a notice
withdrawing the previous application.
[11] On 9 April
2014, at the request of the parties, Magistrate Human adjourned his
consideration of the second warrant application
to 29 April 2014.
[12] On 17 April
2014, following discussions between counsel, SAPS’s senior
counsel wrote to the Applicants’ counsel
setting out two
undertakings that SAPS required from the Applicants, and setting out
the SAPS’s response to a request by
the Applicants for
reciprocal undertakings. The second undertaking which the SAPS
required from the Applicants and the SAPS’s
response to the
Applicants’ request for reciprocal undertakings, read as
follows:
‘(2) An
undertaking concerning the items currently held by KPMG pursuant to
paragraph 2 of Ndita J’s order of 7 February
2014, namely: if
Magistrate Human refuses to issue a search and seizure warrant in
relation to those items, AA and Levitt shall
not remove or seek to
remove any of such items from the custody of KPMG until the expiry of
a period of 5 court days after such
refusal and, if SAPS brings an
application for judicial review of such refusal within that period,
until the final determination
of such application for judicial review
including any appeal(s) against any refusal of such application for
judicial review.
As to Sean’s
request for a reciprocal undertaking that if Magistrate Human issues
the search warrant in relation to any of
the items referred to in (1)
and (2) above, i.e. that SAPS will not search and seize any of those
items under such warrant for
a period of 5 court days after the
issuing of the search warrant and, if AA or Levitt brings an
application for judicial review
of such issuing within that period,
until the final determination of such application for judicial review
including any appeal(s)
against any refusal of such application for
judicial review, my instruction are that SAPS will not give such an
undertaking because:
(a) AA and Levitt
are adequately protected by the undertaking in annexure ‘E’
to the search warrant; and
(b) if AA and Levitt
bring and are ultimately successful in any such application for
judicial review, they will be entitled to the
return of the seized
items and any copies thereof unless SAPS succeeds in obtaining a
further preservation order and/or further
search warrant or subpoena
in relation to such items and copies, any application for which will
be brought on at least 5 days’
notice to AA and Levitt’.
[13] On 29 April
2014, notwithstanding the SAPS’s refusal to give any reciprocal
undertakings, Smiedts gave the undertakings
required by the SAPS,
including the following:
‘We confirm
that our client provides an undertaking concerning the items
currently held by KPMG pursuant to paragraph 2 of
Ndita J’s
order of 7 February 2014, namely: if Magistrate Human refuses to
issue a search and seizure warrant in relation
to those items, AA and
Levitt shall not remove or seek to remove any of such items from the
custody of KPMG until the expiry of
a period of 5 court days after
such refusal and, if SAPS brings an application for judicial review
of such refusal within that
period, until the final determination of
such application for judicial review including any appeal(s) against
any refusal of such
application for judicial review’.
[14] On 2 May 2014,
after receiving written submissions from the parties on and shortly
after 29 April 2014, Magistrate Human issued
the warrant and the
SAPS’s attorney delivered a copy to Smiedts. The warrant
provides that, if they want to, representatives
of Smiedts may be
present when the search is undertaken, they may examine the items
which the SAPS intends to seize and they may
object to the seizure of
items on the grounds that the items are private and irrelevant to the
investigation, or subject to legal
professional privilege. The
warrant further contains an undertaking from the SAPS with a detailed
mechanism for resolving any such
objections before the SAPS may
inspect the disputed items.
[15] On 12 May 2014
the Applicants applied to this Court, under case 8325/14, for
judicial review of Magistrate Human’s decision
to issue the
warrant (‘the review application’).
[16] On the same
date the Applicants brought the present application in this Court
(‘the declaratory application’),
in which they sought an
order in the following terms:
‘Declaring
that on a proper interpretation of paragraph 6 of the Order of this
Honourable Court dated 23 August 2012 (coram
Stelzner AJ), the first
and/or second respondents may not execute the search and seizure
warrant issued on 2 May 2014 by the district
magistrate, Cape Town,
pending the determination of the review application launched by the
applicants in this Court on Monday 12
May 2014’.
[17] On 14 May 2014
the SAPS wrote to Smiedts and gave the following undertaking:
‘4.1 It
undertakes not to execute the search warrant issued by Magistrate
Human until after 27 June 2014; and
4.2 It further
undertakes that, after that date, it will give your clients (through
your offices) two clear days’ written
notice of its intention
to execute the search warrant (the search warrant in any event
entitling the representatives [of] your
offices to be in attendance
when the exhibit bags are opened).’
[18] On 28 May 2014
the Deputy Judge President made an order enrolling the review
application for 25 June 2014. The declarator application
was not
enrolled for hearing as the Applicants did not persist with it. On
the same day SAPS gave the Applicants the following
further
undertakings in writing:
‘1. SAPS
undertakes not to execute the search warrant issued by Magistrate
Human until after the Court hearing the review
application on 25 June
2014 (case 8325/14) delivers its judgment in that application.
2. SAPS further
undertakes that, after the date on which the judgment is delivered,
it will give your clients (through your offices)
two clear days’
written notice of its intention to execute the search warrant (the
search warrant in any event entitling
your offices to be in
attendance when the exhibit bags are opened.’
[19] On 25 and 26
June 2014 the review application was argued before Allie J, who
reserved judgment. On 7 October 2014 she handed
down her judgment
dismissing the review application. On 10 October 2014 Smiedts
requested the SAPS to confirm that it would
‘… not
execute the warrant until Auction Alliance and Mr Levitt had
exercised their appeal remedies within the time
periods prescribed by
the High Court and all Appeal Courts’.
[20] On 15 October
2014 Auction Alliance and Levitt delivered an application for leave
to appeal against Allie J’s judgment
and order. On 16 October
2014 the SAPS’s attorney wrote to Smiedts saying the SAPS
believed it was now entitled to execute
the search warrant subject to
giving the Applicants the two clear days’ notice mentioned in
the SAPS’s undertaking
of 28 May 2014, and further notifying
the Applicants that it would be executing the search warrant on 3
November.
[21] On 20 October
2014 the Applicants delivered a revised notice of motion in the
declaratory application, in which they seek the
following substantive
relief:
‘2. Declaring
that on a proper interpretation of paragraph 4 of the Order of this
Honourable Court dated 23 August 2012 (coram
Stelzner AJ), the words
“final determination of any application” include the
outcome of any review of such application,
including the final
determination of any appeal processes which any of the parties may
pursue in respect of any decision given
on review, provided such
review or appeal processes are brought in terms of the rules of any
applicable court;
3. Declaring that on
a proper interpretation of paragraph 6 of the Order of this
Honourable Court dated 23 August 2012 (coram Stelzner
AJ), the first
and/or second respondents may not execute the search and seizure
warrant issued on 2 May 2014 by the district magistrate,
Cape Town,
pending the final determination of the review application launched by
the applicants in this Court on Monday 12 May
2014, including the
final determination of any appeal processes which any of the parties
may pursue in respect of any decision
given on review, provided such
review or appeal processes are brought in terms of the rules of any
applicable court.’
[22] On 21 October
2014 the SAPS’s attorney sent Smiedts a letter informing them
that, to accommodate the hearing of the declarator
application, the
SAPS will no longer execute the search warrant on 3 November 2014,
but instead it will do so on 19 November 2014.
[23] On 24 October
2014 the Judge President made an order, by agreement between the
parties, enrolling the current matter for hearing
in the ‘fast
lane’ for 4 November 2014. On 4 November 2014 I heard argument
from the parties and reserved judgment.
[24] On 19 November
2014, and whilst I was considering my judgment herein I received
correspondence from applicants’ attorney
Smiedt advising me
that the applicants’ application for leave to appeal under case
no 8325/2014 (the review application)
had been dismissed by Allie J
and that an application to petition the SCA for leave to appeal the
Allie J judgment would be filed
with the registrar of the SCA on 20
November 2014. Application for leave to appeal against the judgment
and the order of Allie
J was served on SAPS’ attorneys on 19
November 2014. SAPS also agreed that they would not execute the
search warrant until
I have handed down my judgment in this matter.
[25] The crucial
issue for determination in this matter is whether SAPS can, in terms
of the Stelzner AJ order, still execute the
search warrant, given
that the lawfulness of the search warrant has not yet been finally
determined. Mr Epstein SC, who was assisted
by Mr Simonsz, contended
on behalf of the applicants that the material paragraphs of the
Stelzner AJ order, i.e. paragraphs “4”
and “6”
(supra) can only be read to mean that the seized items are to be
preserved until the “final determination”
of any
challenge to the lawfulness of the SAPS search warrant, which
includes review and thereafter appeal. He contended further
that the
Stelzner AJ order must be interpreted in the light of all relevant
and admissible content, including the circumstances
in which the
document (i.e. the order) came into being. He argued strongly that I
must in particular take into account that the
Stelzner AJ order came
about as a result of a warrant. Furthermore, that each and every
search warrant impinges upon inter alia,
the right to privacy in
terms of section 14 of the Constitution of the Republic of South
Africa and that the purpose of the search
warrant is to obtain
evidence for use in possible criminal proceedings against the
applicants. He emphasized the importance and
strict nature of search
warrants as a safeguard of individual rights.
[26] Mr Breitenbach,
who was assisted by Ms Erasmus and Mr Goosen, contended on behalf of
the SAPS that the declarators in relation
to both paragraphs 4 and 6
of the Stelzner AJ order as sought in the revised notice of motion
amount to the following i.e. if within
five days after the granting
of the search warrant by a judicial official other than a judge of
the High Court, the applicants
bring a High Court challenge against
the granting of the warrant, then the execution of the search warrant
is suspended until
(a) The
determination of that challenge in the High Court and
(b) The final
determination of any appeal process initiated by the applicants
against any refusal by the high Court of that challenge.
[27] The main
reasons advanced by Mr Breitenbach why the declarator sought by the
applicants should not be granted can be summarised
as follows:
1. The Stelzner AJ
order does not deal in any way with the further preservation of the
seized items beyond the five day period provided
for in paragraph 6
of the order, nor does it cater for the “permutations’
covered by the declarators now sought by
the applicants. According to
Mr Breitenbach all it provides for (i.e. para 6) is a stay of five
days after the granting of the
warrant or subpoena to allow the
applicants to challenge such granting in the High Court. He pointed
out that the Stelzner AJ order
did not extend further than providing
a five day period for the applicants to institute a challenge in the
High Court, if they
so decided and that what is conspicuous by its
absence is a further paragraph after paragraph 6, saying ‘If a
challenge is
brought in the High Court then …’ .
2. That read in this
context, the ‘final determination’ referred to in
paragraph 4 of the Stelzner AJ order, is the
final determination by a
magistrate or other judicial officer of the application(s) for the
search warrant(s) or subpoena(s) pertaining
to the returned items.
According to Mr Breitenbach paragraph 4 refers expressly and plainly
to the ‘final determination of
any application(s) brought
before 7 September 2012 for a subpoena(s) or a search warrant(s)
pertaining to the returned items. He
relied on this interpretation by
referring to the opening words of paragraphs 5 and 6, namely ‘If
any such application(s)
is brought’ and ‘If any such
application(s) is granted’. According to him the challenge in
the High Court referred
to in paragraph 6 of the Stelzner AJ order,
which had to be brought within five days of the granting of any such
application(s)
by a judicial officer other than a judge of the High
Court, is clearly a new set of proceedings separate from the
application(s)
for the search warrant or subpoena, more specifically
the granting of such application(s) to which it is directed.
Therefore he
submitted, ‘the final determination’
referred to in paragraph 4 of the Stelzner AJ order is not the final
determination
by a High Court of an application for judicial review
of the granting by a magistrate of a search warrant or subpoena, let
alone
the final determination of any applications for leave to appeal
or any appeals against an unsuccessful application for judicial
review.
3. That the manner
in which the parties have conducted themselves since the granting of
the Stelzner AJ order is consistent with
the SAPS interpretation of
the Stelzner AJ order and inimical to the interpretation underlying
the declarators now sought by the
applicants. In this regard Mr
Breitenbach relied on the undertakings sought by SAPS and given by
applicant hereinbefore referred
to, before Magistrate Human
determined the application for the search warrant. Together with his
argument about the manner in which
the parties have conducted
themselves, Mr Breitenbach questioned why the applicants had taken as
long as they did to rely on paragraph
4 of the Stelzner AJ order in
support of their claim that the Stelzner AJ order precludes the SAPS
from executing the search warrant
until the appeal process against
their failed high court challenge to the issuing of the warrant has
run its course.
4. That the
agreement encapsulated in the Stelzner AJ order has been superseded
by subsequent events i.e.
(i) The SAPS
undertaking that if the review application failed, the applicants
would be given at least two clear days’ notice
of its intention
to execute the search warrant; and
(ii) The
correspondence by means of which, applicants agreed to the request of
the SAPS for an undertaking, and further that SAPS
could execute the
search warrant should their application in this court for judicial
review of Magistrate Human’s decision
fail.
He was adamant that
nothing endures beyond the period of notice which the SAPS has now
given, i.e. beyond 19 November 2014.
5. In regard to
this court’s discretion whether or not to grant the declaratory
relief sought, he submitted that the applicants
are sufficiently
protected by the warrant itself including Annexure “E” to
the search warrant, and consequently it
is not necessary for this
court to determine the ‘merits’ of the application for
declaratory relief. In his view the
warrant contains a detailed
procedure and undertaking from the SAPS aimed at preventing the SAPS
from gaining access to any materials
which Auction Alliance or Levitt
legitimately claim are private and irrelevant to the investigation,
or in respect of which they
legitimately claim legal professional
privilege.
[28] Mr Epstein SC
in response contended that:
1. The reliance
placed on the absence of any explicit mention in paragraph 6 of the
Stelzner AJ order of preservation beyond five
days is untenable
because: (i) Paragraph 6 must be read with paragraph 4 and that the
phrase ‘final determination’
in paragraph 4 can only mean
preservation until the challenge is finally determined; and
(ii) That having a
preservation order for only five days leads to practical absurdity
for all the parties.
2. In regard to the
second ground that ‘finally determined’ means only until
application to the magistrate is finally
determined, not until any
challenge in the High Court is finally determined, he was of the view
that –
(i) This
artificially distinguishes paragraph 4 from paragraph 6. According to
him it is clear from paragraph 6 that the parties
were expecting and
indeed planning for the eventuality that any search warrant would be
tested in the High Court. Paragraph 4 accordingly
cannot be
reasonably read as referring only to applications in the magistrate’s
court.
(ii) Such an
approach is impermissible as it ignores the word ‘final’.
He submitted that ‘final’ can only
refer to finality that
comes when a legal challenge is exhausted on review or appeal.
3. In regard to the
alleged failure by the applicants to rely on paragraph 4 of the
Stelzner AJ order in their founding papers,
and that their failure to
do so results in inferences against their bona fides, he contended
that applicants have not raised new
argument by relying on paragraph
4, as the applicants clearly regard paragraphs 4 and 6 as
inextricably linked, and that in any
event all the applicants
contentions were made in their founding papers.
4. In regard to the
contention that the Stelzner AJ order has been superseded by an
undertaking by SAPS, he submitted that the short
and complete answer
to this is, that the Stelzner AJ order was an agreement between the
parties enshrined in an order of this court,
and it is not open to
the SAPS to withdraw from the agreement and replace it with such
undertakings as it deems convenient.
5. Finally in regard
to the contention that the applicants were sufficiently protected by
the undertakings in annexure E to the
search warrant, and that no
prejudice will be suffered by applicants if the SAPS breach the
Stelzner AJ order, he submitted that
the annexure post-dates, and is
irrelevant to the issue of the interpretation of the Stelzner AJ
order and that none of the parties,
including the SAPS can excuse
their failure to abide by their agreements on the basis that they are
of the view that other parties
will not be prejudiced. The annexure
in any event does not protect the applicants and indeed would
effectively grant the persons
in the employ of the SAPS access to the
privileged documents of the applicants.
THE PRINCIPLES OF
INTERPRETATION
[29] It is necessary
to examine the principles of interpretation as they apply in our law
to assist in arriving at the correct decision.
According to Herbstein
and Van Winsen The Civil Practice of the High Courts of South Africa,
5th ed at p936 the basic rules for
interpreting the judgment or order
of a court are no different from those applicable to the construction
of documents. Where the
court order records an agreement of
settlement, the basic principles of the interpretation of contracts
need also to be applied
to ascertain the meaning of the agreement.
See Engelbrecht and Another NNO v SENWES Ltd
2007 (3) SA 29
at 32
para [6].
[30] In Engelbrecht
and Another NNO v SENWES Ltd supra, Malan AJA stated at para [7] that
‘The intention
of the parties is ascertained from the language used read in its
contextual setting and in the light of admissible
evidence.’
Malan AJA
distinguished three classes of admissible evidence namely,
‘Evidence of
background fact is always admissible. These facts, matters probably
present in the minds of the parties when
they contracted, are part of
the context and explain the “genesis of the transaction”
or its “factual matrix”.
Its aim is to put the Court in
“the armchair of the author(s)” of the document. Evidence
of “surrounding circumstances”
is admissible only if a
contextual interpretation fails to clear up an ambiguity or
uncertainty. Evidence of what passed between
the parties during the
negotiations that preceded the conclusion of the agreement is
admissible only in the case where evidence
of the surrounding
circumstances does not provide “sufficient certainty”.’
[31] In Jaga v
Dönges
1950 (4) SA 653
(A) at 662H, Schreiner JA in interpreting
a statute said:
‘The first is
that “the context” … is not limited to the
language of the rest of the statute regarded as
throwing light of a
dictionary kind on the part to be interpreted. Often of more
importance is the matter of the statute, its apparent
scope and
purpose, and, within limits, its background …’.
The above dictum of
Schreiner JA was accepted as being equally applicable to the
interpretation of contracts and not only of statutes
as appears from
the judgment of Wessels JA in Van Rensburg v Taute
1975 (1) SA 279
(A) where at 303C he states that:
‘’n
Geskrewe stuk word natuurlik na gelang van sy aard en opset vertolk,
bv. in die onderhawige geval gaan dit oor ’n
ooreenkoms wat die
daarstelling van ’n serwituut beoog. Ook moet die woord of
woorde wat vertolk moet word nie in isolasie
nie, maar in samehang
van die stuk as geheel, gelees word. Die hof kan blykbaar ook ingelig
word oor die agtergrondsomstandighede
waaronder kontraksluiting
plaasgevind het, maar slegs om die breë konteks, waarin die
woorde vertolk staan te word, gebesig
word, beter te kan begryp.’
[32] It is important
to bear in mind as stated by Christie The law of contract in South
Africa, 6th ed p228,
‘that even if
a contract has been drafted by a skilled legal draftsman, it has
become the act of the parties and should therefore
be interpreted not
in a subtle way that might appeal to a lawyer, but in the
straightforward way that can be presumed to represent
the common
intention of two business people …’
[33] The correct
approach to interpretation in our law is now emphatically set out in
Bothma-Batho Transport (Edms) Bpk v S Bothma
& Seun Transport
(Edms) Bpk
2014 (2) SA 494
where Wallis JA stated the following:
‘In Natal
Joint Municipal Pension Fund v Endumeni Municipality the current
state of our law in regard to the interpretation
of documents was
summarised as follows:
'Over the last
century there have been significant developments in the law relating
to the interpretation of documents, both in
this country and in
others that follow similar rules to our own. It is unnecessary to add
unduly to the burden of annotations by
trawling through the case law
on the construction of documents in order to trace those
developments. The relevant authorities are
collected and summarised
in Bastian Financial Services (Pty) Ltd v General Hendrik Schoeman
Primary School. The present state of
the law can be expressed as
follows: Interpretation is the process of attributing meaning to the
words used in a document, be it
legislation, some other statutory
instrument, or contract, having regard to the context provided by
reading the particular provision
or provisions in the light of the
document as a whole and the circumstances attendant upon its coming
into existence. Whatever
the nature of the document, consideration
must be given to the language used in the light of the ordinary rules
of grammar and
syntax; the context in which the provision appears;
the apparent purpose to which it is directed and the material known
to those
responsible for its production. Where more than one meaning
is possible each possibility must be weighed in the light of all
these
factors. The process is objective, not subjective. A sensible
meaning is to be preferred to one that leads to insensible or
unbusinesslike
results or undermines the apparent purpose of the
document. Judges must be alert to, and guard against, the temptation
to substitute
what they regard as reasonable, sensible or
businesslike for the words actually used. To do so in regard to a
statute or statutory
instrument is to cross the divide between
interpretation and legislation; in a contractual context it is to
make a contract for
the parties other than the one they in fact made.
The “inevitable point of departure is the language of the
provision itself'',
read in context and having regard to the purpose
of the provision and the background to the preparation and production
of the document.'
That statement
reflected developments in regard to contractual interpretation in
Masstores (Pty) Ltd v Murray & Roberts Construction
(Pty) Ltd and
Another; KPMG Chartered Accountants (SA) v Securefin Ltd and Another;
and Ekurhuleni Metropolitan Municipality v
Germiston Municipal
Retirement Fund. I return to it and to those cases only because we
had cited to us the well-known and much-cited
summary of the earlier
approach to the interpretation of contracts by Joubert JA in Coopers
& Lybrand and Others v Bryant,
that:
'The correct
approach to the application of the golden rule of interpretation
after having ascertained the literal meaning of the
word or phrase in
question is, broadly speaking, to have regard:
(1) to the context
in which the word or phrase is used with its interrelation to the
contract as a whole, including the nature and
purpose of the contract
. . . .
(2) to the
background circumstances which explain the genesis and purpose of the
contract, ie to matters probably present to the
minds of the parties
when they contracted. . . .
(3) to apply
extrinsic evidence regarding the surrounding circumstances when the
language of the document is on the face of it ambiguous,
by
considering previous negotiations and correspondence between the
parties, subsequent conduct of the parties showing the sense
in which
they acted on the document, save direct evidence of their own
intentions.'
That summary is no
longer consistent with the approach to interpretation now adopted by
South African courts in relation to contracts
or other documents,
such as statutory instruments or patents. Whilst the starting point
remains the words of the document, which
are the only relevant medium
through which the parties have expressed their contractual
intentions, the process of interpretation
does not stop at a
perceived literal meaning of those words, but considers them in the
light of all relevant and admissible context,
including the
circumstances in which the document came into being. The former
distinction between permissible background and surrounding
circumstances, never very clear, has fallen away. Interpretation is
no longer a process that occurs in stages but is 'essentially
one
unitary exercise'. Accordingly it is no longer helpful to refer to
the earlier approach’ (my emphasis).
[34] The approach
adopted by Wallis JA in Bothma-Batho Transport (Edms) Bpk v S Bothma
& Seun Transport (Edms) Bpk supra is
in line with the approach
adopted by Lord Clarke SCJ in Rainy Sky SA v Kookmin Bank
[2011] UKSC
50
[2012] Lloyd’s Rep 34 (SC) para 21 where he said that ‘the
exercise of construction is essentially one unitary exercise’.
[35] I turn now to
deal with the interpretation of the words ‘final
determination’. It seems obvious that the starting
point must
be, to give the words their ordinary grammatical meaning. Our courts
have through the years recognised that any legal
determination which
has been taken on appeal cannot be considered to be final until the
appeal is concluded. It seems logical that
the very nature of an
appeal would be to reconsider the determination and to decide whether
it should stand or fall.
[36] In Els v
Weideman & Others 2011(2) SA 126 (SCA) Heher JA stated at
paragraph 34 that:
‘I do not
agree that, because contempt proceedings are a continuation of an
already instituted proceeding or “no more
than a step in the
execution of a judgment” (James v Lunden), the judgment must be
enforced in the court which granted the
original order. When a party
leaves a High Court with an order in his favour (not obtained ex
parte) those proceedings have been
effectually completed (subject to
appeal or, in the case of an interim order, its confirmation).’
[37] In F O Kollberg
(Pty) Ltd v Atkinson Motors Ltd
1970 (1) SA 660
(C), this court, per
Grosskopf AJ, considered the meaning of the phrase ‘final
judgment’ in the context of Uniform
Rule 8(11) and provisional
sentence, and held at 662F-H that
‘Judgments
which might appropriately be called final in a particular context may
nevertheless be subject to appeal, review
or rescission under the
common law or under the Rules of Court. In my view the exact effect
of the adjective “final”
when applied to a judgment must
in all cases be determined in its context in accordance with ordinary
principles of construction
before any conclusion could be reached as
to the applicability of a provision such as Rule of Court 27.’
[38] In Van der
Merwe and Another v Astrapak Ltd and Another (unreported) case no
11108/2013 (Western Cape Division, Cape Town)
(‘Astrapak’)
a full bench of this court per Cloete J (Ndita J and Le Grange JJ
concurring) approved the approach adopted
by Grosskopf AJ in F O
Kollberg (Pty) Ltd v Atkinson Motors Ltd (supra) and concluded at
paragraph 25 that:
‘proceedings
are not necessarily concluded upon the handing down of a judgment by
a court of first instance’.
[39] Astrapak
(supra) concerned an automatic appeal, in terms of section 18(4)(ii)
of the Superior Courts Act 10 of 2013 (‘the
SC Act’),
against an interim execution order. The interim execution order was
itself sought after the respondents applied
for leave to appeal,
thereby automatically suspending the judgment of the court. In the
course of its reasoning the court was called
upon to decide what
‘pending proceedings’ meant under section 52 of the SC
Act. The respondents in Astrapak contended
that the application for
leave to appeal and the counter-application constituted new
proceedings which were thus not ‘pending’
in terms of the
SC Act. The court disagreed, finding in effect that the application
for leave to appeal and the interim execution
order ‘formed a
continuation of proceedings’ from the original application.
[40] Based on the
authorities and the legal principles referred to hereinbefore there
can be no doubt that the Stelzner AJ order
must be interpreted in the
light of all relevant and admissible content including the
circumstances in which the document came
into being.
THE WARRANT
[41] It is common
cause that the applicants approached the court on the basis that
their constitutional rights in terms of section
14 of the
Constitution had been violated. Since the execution of further
warrants will no doubt have an impact on the self-same
constitutional
rights it is necessary to refer briefly to the principles applicable
to search warrants in our law. Section 14
of the Constitution
provides:
‘Everyone has
the right to privacy which includes the right not to have –
Their person or home
searched;
a) their property
searched;
b) their possessions
seized;
c) the privacy of
their communications infringed.’
See Minister of
Safety and Security v Van der Merwe and Others 2011(5) SA 61 (CC) at
para 35.
[42] Section 35(5)
of the Constitution 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.’
[43] In Powell N.O.
v Van Der Merwe 2003(5) SA 62 (SCA) the SCA established the following
principles concerning the approach of
court to search warrants:
‘(a) Because
of the great danger of misuse in the exercise of authority under
search warrants the courts examined 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 search.
(c) The terms of a
search warrant must be construed with reasonable strictness.
Ordinarily there is no reason why it should be
read otherwise than in
the terms in which it is expressed.’
See Pullen NO and
Others v Waja
1929 TPD 838
at 846-847.
[44] The
Constitutional Court has emphasised the importance and strict nature
of search warrants as a safeguard of individual rights
(See Magajane
v Chairperson, North West Gambling Board 2006(5) SA 250 (CC) at para
74). In Minister of Safety and Security v Van
der Merwe and Others
(supra) the court held that search warrants must conform to strict
requirements. In Powel N.O. v Van der Merwe
(supra) the court
emphasised that warrants must be intelligible, lawful and cannot
serve as excuse for the general ransacking of
a person’s
private life (para 62).
[45] In terms of the
Stelzner AJ order the warrants utilised by the SAPS are unlawful and
invalid. I am accordingly mindful when
interpreting the word ‘final
determination’ in paragraph 4 of the Stelzner AJ order, that
the lawfulness of the warrant
is now the subject of a legal challenge
and that due deference must be paid to the constitutional rights
applicants are seeking
to protect.
[46] What was the
intention of the parties when they entered into the agreement which
resulted in the Stelzner AJ order?
[47] In my view the
intention behind the agreement between SAPS and the applicants which
culminated in the Stelzner AJ order must
have been to achieve what
has been aptly described by Levitt as:
‘A quid pro
quo and balancing of the parties respective rights and interest; and
A protection of the
applicants’ rights particularly having regard to the fact that
the applicants’ property had already
been unlawfully seized
pursuant to the unlawful and invalid original search warrants.’
[48] During argument
Mr Epstein SC urged me to approach the interpretation of the Stelzner
AJ order at two levels, namely purposively
and textually and for me
to have regard to the connection between paragraphs 4 and 6 of the
order, bearing in mind the holistic
approach to interpretation now
adopted by the courts. See in regard to purposive and textual
interpretation Phillips v SA Reserve
Bank and Others 2013(6) SA 450
(SCA) at para 30; S v Zuma and Others 1995(4) BCLR 401 (CC) and
Public Carriers Association and
Others v Toll Road Concessionaries
(Pty) Ltd and Others 1990(1) SA 925(A).
[49] If one
considers the content of paragraph 4 of Stelzner AJ’s order
then it is clear that it deals with the period for
which the seized
items must be retained. Paragraph 6 in turn deals with when the
seized items must be released to SAPS by the execution
of the search
warrant. There can be no doubt that paragraphs 4 and 6 must be read
together to have the same meaning. The logical
interpretation of
paragraphs 4 and 6 must be that the duty to preserve the seized items
must cease at the same time as when the
search warrant is executed.
There can be no other interpretation.
[50] I agree with Mr
Epstein’s submissions that the Stelzner order envisages that:
1. The items seized
in terms of the unlawful and invalid warrants would be preserved;
2. The respondents
would bring a further application by 7 September 2012 for a search
warrant pertaining to the seized items;
3. The applicants
would be given at least 5 court days’ notice if the SAPS
brought another application for a search warrant
pertaining to the
seized items;
4. This was clearly
so, so that the applicants could oppose the granting of the
application; and
5. If any such
application for a warrant was granted by a magistrate, the applicants
would be given at least five court days ‘to
challenge’
the authorisation by the magistrate in the high court. In the
meantime, the seized items would have been preserved.
[51] The contention
by the respondents that the Stelzner AJ order prevents the execution
of the search warrant for five court days
after the grant of the
search warrant cannot be correct for the following reasons:
1. The applicants
would never agree to such a burdensome and/or prejudicial situation,
considering that they had in fact approached
this court to have the
original warrants declared unlawful and invalid.
2. The fact that the
agreement declares the original warrants unlawful and invalid.
3. That considering
the nature and complexity of the facts of this particular matter, the
period of five days, is unrealistically
too short a period, not only
to challenge the search warrant, but more so to allow applicants the
opportunity to launch and bring
to finality a reasonably
well-prepared and argued application for an urgent interim interdict.
4. It could never
have been the intention of the parties that SAPS would be allowed to
execute the search warrant even before the
applicants’
challenge to the search warrant was completed.
5. It is logical
that if the search warrant could be executed only to be set aside on
appeal, that the applicants would already
have suffered severe
prejudice and their rights would have been irreparably damaged.
6. No rational
party, particularly the applicant, would agree to an order that would
allow the SAPS to execute a warrant, the lawfulness
of which was in
the process of being challenged and determined by the courts.
7. Finally, there is
the real likelihood that if SAPS did execute the warrant and obtain
the preserved property that they would
in all likelihood have had the
benefit of information which would have been improperly obtained,
which would be in conflict with
the constitutional principles
relating to warrants hereinbefore set out.
[52] It must follow
that the parties, in accordance with their quid pro quo and balancing
of their respective rights and interest
and to allow for the
applicants to protect their rights (i.e. having already had their
property unlawfully seized in terms of the
original search warrants),
must have envisaged that the authorisation of a warrant by a
magistrate would not be the end of the
matter as far as the
applicants were concerned. The effect of the Stelzner AJ order must
therefore be interpreted to mean that
applicant could challenge the
authorisation by the magistrate in the high court. This is clearly
illustrated by the fact that applicants
brought the review
application against the warrant issued by Magistrate Human.
[53] I am mindful
about the averment that the applicants have over a period of time
impeded the investigation by the SAPS by preventing
the SAPS from
executing the search warrant. The applicants are however entitled to
enforce whatever rights they have in terms of
the law and the
constitution. If I weigh up the prejudice which may be suffered, by
either of the parties, I am satisfied that
should the SAPS be allowed
to execute the warrant and access the information in circumstances
where the warrant may ultimately
be set aside, the SAPS would be
given an unfair and unreasonable advantage over the applicants. This
could never have been intended
by the parties.
Apart from having to
wait for the final outcome of the appeal process, the respondents
will not be disadvantaged. The items will
remain preserved until the
final determination of the matter on appeal. I do not agree, as was
contended by Mr Breitenbach SC,
that the solution or protection for
the applicants, pending the outcome of the petition to the SCA on the
review application for
leave to appeal, is to make an application for
relief by way of a separate interdict pending the determination of an
appeal.
CONCLUSION
[54] On a proper
consideration of the Stelzner AJ order ‘final determination’
of an application must therefore be read
to mean something, distinct
from the mere ‘determination’ of the application. In my
view the word ‘final’
in the Stelzner AJ order, can and
must on its ordinary meaning only mean to include determination on
review or appeal.
[55] Accordingly I
am satisfied that the applicants are entitled to the relief sought in
the notice of motion.
[56] In my view the
matter is sufficiently complex to necessitate the use of senior and
junior counsel. In accordance with the usual
rule the costs, will
follow the result.
[57] In the result
the following order is issued:
1. Declaring that on
a proper interpretation of paragraph 4 of the Order of this court
dated 23 August 2012 (coram Stelzner AJ),
the words “final
determination of any application” include the outcome of any
review of such application, including
the final determination of any
appeal processes which any of the parties may pursue in respect of
any decision given on review,
provided such review or appeal
processes are brought in terms of the rules of any applicable court;
2. Declaring that
on a proper interpretation of paragraph 6 of the Order of this court
dated 23 August 2012 (coram Stelzner, AJ),
the first and/or second
respondent may not execute the search and seizure warrant issued on 2
May 2014 by the district magistrate,
Cape Town, pending the final
determination of the review application launched by the applicants in
this court on Monday 12 May
2014, including the final determination
of any appeal processes which any of the parties may pursue in
respect of any decision
given on review, provided such review or
appeal processes are brought in terms of the rule of any applicable
court; and
3. Directing the
first and second respondents to pay the Applicants’ costs
jointly and severally, the one paying the other
to be absolved,
including the costs consequent upon the employment of senior and
junior counsel.
J F RILEY