Divisional Commissioner of SA Police, Witwatersrand Area, and Others v SA Associated Newspapers Ltd and Another

• Jurisdiction: South Africa
• Judge: Beyers ACJ, van Blerk JA, Botha JA, Holmes JA and Smit AJA
• Judgment Date: 24 March 1966
• Citation: 1966 (2) SA 503 (A)
• Hearing Date: 21 February 1966
• Court: Appellate Division

Beyers, A.C.J.:

On 17th August, 1965, the second appellant - an officer of the South African Police Force - called at the offices of the Rand Daily Mail newspaper in Johannesburg and exhibited to the

Beyers ACJ

second respondent - the editor of the Rand Daily Mail - a search warrant issued by the third appellant - a justice of the peace - in terms of sec. 42 of the Criminal Procedure Act.

The warrant, the validity of which is in issue in these proceedings, is couched in the following terms:

A 'To all policemen:

Whereas it appears to me on complaint made on oath that there are reasonable grounds for suspecting that there is at the premises situated at 174 Main Street, Johannesburg, offices of the Rand Daily Mail:

Something in respect of which there are reasonable grounds for believing that it will afford evidence as to the commission of an offence, in terms of sec. 44 (f) of Act 8 of 1959, to wit the articles described on B the annexure hereto.

These are therefore to direct you to search during the daytime the said premises and any person found in or upon such premises and to seize the said articles if found, and to take it before a magistrate to be dealt with according to law.

Given under my hand at Johannesburg this 17th day of August, 1965.

(Sgd.) C. De Guisti. Kol.

Justice of the peace for Johannesburg Area.

Annexure to search warrant

1.

C All correspondence and letters between Mr. B. Pogrund and G. Barkhuizen of Tzaneen, Transvaal.

2.

All photos taken of the following persons as well as the negatives:

(a)

J. A. Theron;

(b)

G. J. van Schalkwyk;

(c)

Filisberto Nyabetse;

(d)

Isaac Tsetsedi;

(e)

H. Strachan; D

(f)

C. Prins;

(g)

All other documents including any statements of whatever nature concerning reports in connection with conditions in gaols and experiences of prisoners in gaols throughout the Republic of South Africa.

(Sgd.) C. De Guisti. Col.

Justice of the peace for Johannesburg Area.'

E Act 8 of 1959, referred to in the warrant, is the Prisons Act. In terms of the section quoted - sec. 44 (f) - a person is guilty of an offence who

'publishes any false information concerning the behaviour or experience in prison of any prisoner or ex-prisoner or concerning the administration of any prison, knowing the same to be false, or without taking reasonable steps to verify such information (the onus of proving that reasonable steps were taken to verify such information being upon the accused)'.

F The second appellant, in execution of the warrant, took possession of the articles referred to in para. 1 of the annexure - the correspondence - and the articles referred to in para. 2 (a) to (f) thereof - the photographs. His authority to seize the documents referred to in para. 2 (g) was challenged, and he agreed to withhold execution of the warrant in respect thereof, pending an application to G Court by the respondents for the purpose of testing the validity of the warrant.

The respondents duly applied to the Witwatersrand Local Division for an order declaring the search warrant invalid, and for staying the further execution thereof. In support of the application it was contended

(a)

H that the applicants (the present respondents) having alleged an illegal seizure and that no reasonable grounds existed for believing that the documents set out in the warrant would afford evidence as to the commission of the offence mentioned, the onus was on the respondents (the present appellants) to show that such reasonable grounds existed, and that onus had not been discharged; and

(b)

that in any event the inclusion in the warrant of para. 2 (g) in such wide terms rendered the whole invalid: authorisation was

Beyers ACJ

thereby given to those who were to execute the warrant, not to search for specific documents, but to make an examination of a wide range of documents for the purpose of deciding which might afford evidence as to A the commission of the offence mentioned.

The Court rejected the first of these contentions and held that the warrant was a sufficient authority for the seizure of the aforesaid correspondence and photographs. It upheld the second contention, that para. 2 (g) was too general in its terms. This, however, in the view of B the Court, did not affect the validity of the warrant as a whole, because the offending provisions in the warrant were clearly severable from the remainder. In the result the police were restrained from further execution of the warrant. The applicants having succeeded in obtaining a substantial measure of relief, the respondents (the present appellants) were ordered to pay the costs of the...