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[2015] ZAWCHC 193
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Murphy v Commissioner of Police Western Cape and Others (19019/2014) [2015] ZAWCHC 193 (13 May 2015)
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REPUBLIC OF SOUTH ARICA
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case No: 19019/2014
DATE: 13 MAY 2015
In the matter between:
FADWAAN
MURPHY
..............................................................................................................
Applicant
And
COMMISSIONER OF POLICE WESTERN
CAPE
...................................................
1st
Respondent
ELIZABETH
HERMANUS
..........................................................................................
2nd
Respondent
(In her capacity as Station
Commander of
Lentegeur Police Station)
SENIOR MAGISTRATE MITCHELLS PLAIN
MAGISTRATE’S
COURT
.............................................................................................
3rd
Respondent
JUDGMENT
DELIVERED ON 13 MAY 2015
RILEY, AJ
[1] On 23 October 2013 the applicant
brought an application in terms of which he sought the following
relief on an urgent basis:
1. that the actions of second
respondent, Elizabeth Hermanus, in her capacity as Station Commander
of Lentegeur South African Police
Station, in issuing various and
repeated search warrants for the search of applicants property at [7
T……..] Street
[L…….], [M……]
[P……] be deemed an harassment of applicant;
2. that the actions of second
respondent in issuing various and repeated search warrants for the
search of applicant’s second
property at No 7 [T…….]
Street, [M……] [P…..] be deemed a harassment of
applicant’s sister;
3. that the repeated and unsuccessful
searches of applicants residences mentioned at 1 above be deemed an
unjust violation of the
right to privacy of applicant;
4. that the first and second
respondents or any of their members be prevented and prohibited from
issuing any search warrants for
purposes of searching the residences
of applicant.
[2] On 24 October 2014 first and second
respondents gave notice of their intention to oppose the relief
sought. On 29 October 2014
when the matter was first before this
court, counsel for the first and second respondents undertook before
Yekiso J that the members
of first and second respondents would not
search applicant’s premises until 7 November 2014 when the
court was expected to
make a decision on the matter. On 6 November
2014 first and second respondents filed their answering and
confirmatory affidavits.
On 7 November 2014 Ndita J postponed the
matter for hearing to 19 November 2014 and the applicant was ordered
to file his replying
affidavits to first and second respondents
opposing affidavits by no later than 17 November 2014. On 19
November 2014 Binns-Ward
J postponed the matter for hearing to 3
March 2015 on the semi-urgent roll. The applicant was also ordered
to pay the wasted costs
occasioned by the appearance on 19 November
2014.
[3] At the commencement of his
argument, Mr Twala who appeared for the applicant immediately
conceded that no case has been made
out on the papers for the relief
sought on behalf of the applicant’s sister and accordingly he
limited his submissions for
the relief in respect of the applicant.
[4] Considering the nature of the
relief sought by the applicant, it is clear that the relief sought is
of a final nature.
The applicant’s version
[5] According to the applicant, his
home and that of his sisters, respectively situated at numbers 7 and
10 [T…….]
Street, [L…….], [M……]
[P…….] have been the subject of numerous searches by
members of
the South African Police Services acting on the
instructions of the second respondent. It is not in dispute that the
searches
which were conducted at the above premises were conducted
based on search warrants which were either issued by the third
respondent
or by senior ranking police officers stationed at, and
working under the supervision of the second respondent.
[6] Applicant in particular avers that
during the period 2013 and 2014 approximately twenty-five search
warrants were issued which
resulted in searches being conducted at
the houses where he and his sister reside. It is common cause that
both the houses are
owned by applicant. The search warrants in
question authorize the police to search the premises for drugs and
illicit firearms
and ammunition.
[7] It appears that the repeated
searches at the applicant’s premises are based on the
allegation that the applicant is a
‘drug king pin’ and
that drugs are sold from his premises. Applicant denies these
allegations. He avers that the
fact that he has never been arrested
or convicted on charges relating to drugs or the illicit possession
of firearms, and the fact
that notwithstanding all the searches none
of the items listed were ever found on his premises, is proof that
the allegations are
unsubstantiated and untrue.
[8] According to applicant he has never
previously acted against these searches as he had hoped that the fact
that no drugs or illicit
firearms or ammunition were ever found on
his premises, would exonerate him.
[9] Applicant avers further that he and
his two minor children require protection from the harassment that
first and second respondent’s
employees have subjected them to
and that his two minor children particularly require to be protected
against the intrusions on
the part of the members of the first and
second respondents.
[10] Applicant avers that the reason
for approaching the court on an urgent basis is that there has been
an increase in the number
of searches conducted in the months of
September 2014, and October 2014 and because it has now become clear,
based on newspaper
articles in which a senior ranking officer of the
first respondent is quoted as saying “we have 10 targets of
which he is
one and he must have been informed he was a target, but
we are going to get him”, that he is being harassed and
targeted
by members of first and second respondents. Apart from
contending that the application falls to be dismissed for lack of
urgency,
Mr O’Brien who appeared on behalf of the first and
second respondents, argued strongly that the members of first and
second
respondent were mandated by the constitution to perform their
functions as police officers and that there was no basis in fact or
law for the relief sought by the applicant. He in particular
contended that first and second respondents have submitted clear
evidence of various searches conducted at the premises and in the
vicinity of the premises concerned, where various amounts of
illicit
drugs were found.
[11] It is important to note that the
applicant has not attacked the validity of the search warrants. The
main thrust of the relief
sought by the applicant when summarised,
appears to be directed at inter alia:
11.1 prohibiting the first and second
respondents from issuing any search warrants for the purposes of
searching the residences
of the applicant;
11.2 preventing the third respondent
from issuing any search warrants at the behest of the first and
second respondents without
proper evidence to substantiate
allegations of a crime being committed;
11.3 that the actions of second
respondent in issuing various search warrants for the search of his
residence be deemed harassment
and a violation of his right to
privacy.
The general principles in regard to
search warrants
[12] Considering that the applicant has
approached the court on the basis that his constitutional rights in
terms of inter alia
section 14 of the Constitution has been violated
and 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 that:
‘Everyone has the right to
privacy, which includes the right not to have-
a) their person or property searched;
b) their property searched;
c) their possessions seized, or
d) the privacy of their communications
infringed.’
In Powell N.O. v Van der Merwe 2003(5)
SA 62 (SCA) the SCA established the following principles concerning
the approach of courts
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.
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 Powell 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).
[13] In Minister of Safety and Security
v Van der Merwe 2011(5) SA 61(CC) at para 35, Mogoeng J (as he then
was) held at para [55]
that a valid warrant is one that, in a
reasonably intelligible manner:
‘a) states the statutory
provision in terms of which it is issued;
b) identifies the searcher;
c) clearly mentions the authority it
confers upon the searcher;
d) identifies the person, container or
premises to be searched;
e) describes the article to be searched
for and seized, with sufficient particularity; and
f) specifies the offence which
triggered the criminal investigation, and names the suspected
offender.’
[14] At para 56 the learned Chief
Justice held that the guidelines to be observed by a court
considering the validity of warrants,
include the following:
‘(a) the person issuing the
warrant must have authority and jurisdiction;
(b) the person authorising the warrant
must satisfy herself that the affidavit contains sufficient
information on the existence
of the jurisdictional facts;
(c) the terms of the warrant must be
neither vague nor overbroad;
(d) a warrant must be reasonably
intelligible to both the searcher and the searched person;
(e) the Court must always consider the
validity of the warrants with a jealous regard for the searched
persons constitutional rights;
and
(f) the terms of the warrant must be
construed with reasonable strictness.’
[15] Our courts, and more so, the
Constitutional Court, have however made it clear that all law-biding
citizens of this country
are deeply concerned about the scourge of
crime. Accordingly every lawful means must be employed to enhance
the capacity of the
police to root out crime or significantly at
least reduce it. Warrants issued in terms of section 21 of the
Criminal Procedure
Act are important weapons designed to help the
police to carry out effectively their constitutional mandate of
amongst other things
preventing, combating and investigating crime.
See Minister for Safety and Security v Van der Merwe supra, at para
35.
[16] The unfortunate consequence of the
police using a warrant as a tool in combating crime, inevitably
results in interference
with equally important constitutional rights
of individuals, such as the applicant, who are ‘targeted’
by these warrants.
I have already referred to the safeguards which
are necessary to ameliorate the effect of this interference.
Dispute of facts
[17] It was correctly contended by Mr
O’Brien that in the present matter there exist a material
dispute of facts. It is
a well-established principle in motion
proceedings that where disputes of facts arise on the affidavits, a
final order can only
be granted if the facts as averred in the
applicant’s affidavits which have been admitted by the
respondent, together with
the facts alleged by the latter, justify
such an order. On a consideration of the version put up by the
respondents, I cannot
find that it is palpably implausible,
farfetched or clearly so untenable that the court is justified in
rejecting it merely on
the papers.
The facts as portrayed by the first and
second respondents
[18] First and second respondents admit
that many searches have taken place at the premises of the applicant.
They aver that the
reason for the searches is simply due to the fact
that drug activities have occurred at the applicant’s premises
at 7 and
10 [T……..] Street, [L…..], [M…….]
[P…….]. The applicant’s premises are both
known
in the area as drug houses and since about the year 2006 a number of
drug cases originated from the premises where people
were arrested
for being in possession of illicit drugs. In the answering affidavit
respondents list some of the arrests that have
taken place at the
premises. I deem it necessary to list the instances as is set out in
the respondents answering affidavit:
18.1 On 31 July 2014 at 7 [T…….]
Street, Christopher Andrews, Shawaan Damon and Zanodeen Stemmet were
arrested for
being in possession of a half a kilogram of tik, 90
mandrax tablets and 130 units of heroine which was found in a white
Golf registration
number [C……….];
18.2 On 21 February 2014 at 10 [T………]
Street, Glenda Bird, the applicants sister was arrested for being in
possession of 16 parcels of tik, 1 straw with tik and 11 units of
heroine;
18.3 On 21 February 2014 at 10 [T………]
Street, Hyron Louw was arrested for being in possession of 1 pack of
tik and 1 dagga unit;
18.4 On 26 July 2014 at 10 [T………]
Street, Glenda Bird was arrested for being in possession of 70 grams
of tik,
1 black pencil bag and plastic packet and 29mm empty
magazines;
18.5 On 4 August 2014 at 10 [T………]
Street, Apollo Taliwe was arrested for being in possession of 10
packets
containing tik;
18.6 On 12 August 2014 at 10 [T……..]
Street, Mogammad Natheef Davids was arrested for being in possession
of 1 unit
of heroine;
18.7 On 13 September 2014 at 10 [T………]
Street, Anthony Fredericks was arrested for being in possession of 1
small packet containing tik;
18.8 On 19 October 2014 at 10 [T……..]
Street, Ashley Filander was arrested for being in possession of 1
packet of
tik;
18.9 On 2 June 2014 at 10 [T…….]
Street, Anthony Fredericks was arrested for being in possession of
tik and 1 stop
dagga;
18.10 On 1 September 2014 at 10 [T………]
Street, Abduragmaan Abbas was arrested for being in possession of
tik;
18.11 On 8 September 2013 at 10 [T………]
Street, Ashley Filander was arrested for being in possession of a tik
“lollie”.
18.12 On 28 July 2014 at 10 [T.….]
Street, Amedi Swarts was arrested for being in possession of tik;
From the above it is clear that drugs
were found and people were arrested for illegal drugs in [T………]
Street
on or in the immediate vicinity of the two premises owned by
applicant. Applicant has accordingly not been altogether frank and
forthright to this court in his affidavit in support of the relief
that he seeks.
[19] According to the respondents the
applicants was arrested in October 2009 on a charge of Pointing a
Firearm. As a result of
his bail conditions, the applicant was not
allowed to go to his aforesaid premises. Respondent avers that
whilst respondent was
not allowed to go to his premises, no illegal
activities were conducted at the premises. The charge was withdrawn
due to the complainant,
who was previously resident at Lentegeur,
relocating to the Eastern Cape. When applicant returned to the
premises, the illicit
sale and possession of drugs from the premises
resumed. As a result of this, the police in turn, were forced to
apply for warrants
to search the premises.
[20] It is clear from the above that
the applicant’s averments that no drugs have been found at the
premises cannot stand
and therefore falls to be dismissed.
[21] Considering that the relief sought
by the applicant is in the form of a final interdict, the applicant
has to prove:
a) a clear right;
b) an injury committed or reasonably
apprehended; and
c) the absence of a similar protection
by any other remedy.
[22] On a consideration of the
evidence, I am not persuaded that the applicant has shown that he has
a clear right to privacy at
his aforesaid premises and that that
right trumps the right and or obligation of the police to conduct
searches and seizures based
on lawful warrants in their pursuit to
root out and combat crime. As is clear from the authorities referred
to hereinbefore, the
police are under a constitutional duty to
perform their duties to stop the scourge of crime that pervades
society, which includes
conducting search and seizures of premises
and persons, on reasonable grounds suspected of selling or possessing
illicit drugs.
Accordingly, in circumstances as the present, the
police have relied on warrants which were validly issued in terms of
the Criminal
Procedure Act. There is no evidence, nor was it
contended that there has been non-compliance of the principles, as
laid down in
Minister of Safety and Security v Van der Merwe (supra).
In the absence of mala fides, it is accepted law that our courts
will
not readily grant an interdict restraining the police from
exercising their statutory powers. Thint (Pty) Ltd v National
Director
of Public Prosecutions and Others; Zuma v National Director
of Public Prosecutions and Others 2009(1) SA(1)(CC), which was
decided
before Minister of Safety and Security v Van der Merwe
(supra), emphasised that in matters of this nature there are
important public
interest considerations that have to be taken into
account and the courts have a role to play in respect of crime
control, particularly
in a country where the scourge of crime
threatens the very fabric of our society. I agree with Mr O’Brien
that in the present
matter the applicant’s right to privacy
must be limited and that for the applicant to rely on the right to
privacy, applicant
must show that his right to privacy has been
exercised in accordance with the law, and that the applicant has not
by his conduct
infringed upon the rights of others.
[23] There is no evidence before me
that the conduct of the members of the first and second respondent
was unlawful and or that
their conduct was actuated by malice. In
addition, I cannot find that the third respondent issued the search
warrants, which he/she
was requested to issue by the members of first
and second respondents, without properly considering whether or not
the evidence
presented to third respondent at the time that the
requests were made, substantiated allegations of a crime being
committed.
[24] It follows that applicant has not
made out a case that the warrants were baseless and or that they fall
foul of the guidelines
laid down in Minister of Safety and Security v
Van der Merwe (supra). Accordingly I must conclude that the searches
conducted
by the members of first and second respondents were lawful
and that there has been no unlawful infringement of the applicant’s
rights.
[25] On the applicants version the
alleged harassment has been going on for several years. It is
therefore strange that at no stage
during the period leading up to
this application, did applicant deem it necessary to do anything
about it. At no stage, even up
and until the hearing of the matter,
did applicant deem it necessary to address correspondence to the
respondents to complain about
the alleged harassment of the applicant
by the members of the respondents. Nor did applicant address
correspondence to the respondents
complaining of and about the fact
that he was being unreasonably targeted by the members of
respondents. Applicant’s explanation
that the fact that he
himself was never arrested for possession and or dealing in illicit
drugs and that no drugs were found on
his premises, does not make
sense. If it is so, that the harassment was indeed genuine, and if
the applicant is indeed a victim
who has been subjected to baseless
and unconstitutional searches, then one would have expected applicant
to have done something
about it long ago. At the least one would
have expected him to record his dissatisfaction by writing to the
respondents and complaining
about their conduct. His inaction in
these circumstances speaks volumes and leads me to conclude that he
had no basis in fact
or law to complain, and that he knew that the
police were justified in applying for search warrants and giving
effect thereto in
their efforts to combat crime.
[26] Applicant has failed dismissally
to give a reasonable explanation why he did nothing. In any event,
applicant was and is not
prevented from instituting action against
the respondents should he be of the view that there is any merit in
proceeding against
first and second respondents and or it members for
the alleged harassment. It follows that applicant has not shown that
he had
no alternative remedy. The evidence rather illustrate that
applicant did not consider and or exhaust other remedies before
approaching
this court. Applicant has accordingly failed to prove
any of the requirements for the final relief that he seeks and the
application
therefore falls to be dismissed.
[27] In conclusion I pause to mention
that there is merit in the submissions made by Mr O’Brien that
good grounds exist for
a finding that the application ought to be
dismissed for lack of urgency. Considering the period of months and
even years that
has passed, during which period applicant has
allegedly been subjected to the harassment and searches, it is
incomprehensible that
the applicant would wait until the time that he
did, to launch this application. The evidence points to the
conclusion that the
urgency was self-created. Considering the
conclusion that I have come to the issue relating to urgency is
academic.
[28] In the result I make the following
order:
The application is dismissed with
costs.
RILEY, AJ