Ivanov v North West Gambling Board and Others

• Jurisdiction: South Africa
• Citation: 2012 (6) SA 67 (SCA)

Ivanov v North West Gambling Board and Others
2012 (6) SA 67 (SCA)

2012 (6) SA p67

Citation	2012 (6) SA 67 (SCA)
Case No	312/2011; [2012] ZASCA 92
Court	Supreme Court of Appeal
Judge	Cloete JA, Heher JA, Snyders JA, Mhlantla JA and McLaren AJA
Heard	May 14, 2012
Judgment	May 31, 2012
Counsel	JP de Bruin SC (with N Jagga) for the appellant.; M Donen SC (with ZZ Matebese) for the respondents.

Flynote : Sleutelwoorde B

Spoliation — Mandament van spolie — When available — Property seized by police during search in terms of warrant subsequently declared invalid — Seizure transformed into spoliation — Possessor entitled to unqualified restoration of items seized even where possession of items in question C unlawful.

Headnote : Kopnota

Pursuant to a search warrant obtained from a magistrate, the second respondent, a police officer, and the third respondent, an employee of the North West D Gambling Board, together with other police officers and employees of the board, seized certain machines and equipment which appeared to be gambling machines from the appellant's premises. Subsequent thereto the appellant launched an ex parte application in the high court and obtained a rule nisi with immediate effect pending the return day, declaring the search warrant null and void and ordering the first to fifth respondents to restore possession of the machines to the appellant. The respondents E complied with the order and returned the machines to the appellant, but opposed the confirmation of the rule nisi. On the return day the rule nisi was discharged in part, the high court declaring the warrant to be invalid and setting it aside, but holding that the search and seizure were not unlawful as the search warrant had not been set aside when it was executed F and it had empowered the police to conduct the search and seizure, and that the appellant had adopted the wrong procedure in bringing spoliation proceedings. Accordingly, the high court ordered the appellant to return the machines to the respondents with the qualification that he might only retain the items which he might lawfully possess. On appeal to the court two issues were raised: (1) whether the declaration of invalidity of the search warrant G could transform a bona fide search that was executed under a warrant into a spoliation; and (2) whether, as a result of the declaration of invalidity, the appellant was entitled to unqualified restoration of the machines, the possession of which without a licence is prohibited by the National Gambling Act.

Held, that, if a warrant is subsequently declared invalid, the invasion of privacy H and the search and seizure cannot retain its lawfulness, as the essence of what made the dispossession lawful falls away. Put differently, the lawfulness of the search and seizure is dependent on the legality of the search warrant. This must necessarily be so as the warrant provides the justification for the search and seizure. If the warrant is declared null and void, it means that there was no basis in law for the search and seizure, which were I therefore invalid ex tunc. In this case the police had no authority to seize the appellant's goods; once the order of invalidity was issued, the necessary consequence was that the police had acted unlawfully. Accordingly, it was competent for the appellant to have applied for a spoliation order. (Paragraphs [14] – [17] at 74A – G.)

Held, further, that the aim of spoliation is to prevent self-help. An applicant upon proof of two requirements is entitled to a mandament van spolie restoring J

2012 (6) SA p68

A the status quo ante. The first is proof that the applicant was in possession of the spoliated thing. The cause for possession is irrelevant — that is why possession by a thief is protected. The second is the wrongful deprivation of possession. The principle was simple: possession must first be restored to the person spoliated, irrespective of the parties' actual rights to possession. Questions of illegality or wrongfulness of the spoliator's possession are B irrelevant. There was no doubt that the appellant had succeeded in establishing that he had been in peaceful and undisturbed possession of the machines and that he had been unlawfully deprived of that possession. The appellant had had no duty to prove the lawfulness of his possession and the issues raised on behalf of the respondents relating to the lawfulness of the possession were irrelevant for the purposes of the application. C (Paragraphs [19], [24] – [25] and [32] at 75C – D, 77C – D and 79B – D).

Appeal upheld and order granted confirming rule nisi and ordering first, third and fourth respondents to restore the machines to the appellant.

Cases Considered

Annotations:

Case law D

Betlane v Shelly Court CC 2011 (1) SA 388 (CC): dictum in para [36] applied

Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989 (1) SA 508 (A): dictum at 512A – B applied

Cadac (Pty) Ltd v Weber-Stephen Products Co and Others 2011 (3) SA 570 (SCA): dictum in para [18] applied E

De Jager and Others v Farah and Nestadt 1947 (4) SA 28 (W): referred to

Gopal v Cohen 1946 TPD 283: referred to

Jajbhay v Cassim 1939 AD 537: referred to

Kelly v Wright; Kelly v Kok 1948 (3) SA 522 (A): dictum at 528 – 530 applied

National Director of Public Prosecutions and Others v Zuma and Another 2008 (1) SACR 258 (SCA) ([2008] 1 All SA 197): dictum in para [76] applied F

Nino Bonino v De Lange 1906 TS 120: approved

Oudekraal Estates (Pty) Ltd v City of Cape Town and Others 2004 (6) SA 222 (SCA) ([2004] 3 All SA 1): dictum in para [26] distinguished

Schoeman v Chairperson of the North West Gambling Board [2005] ZANWHC 81: overruled G

Sello v Grobler and Others 2011 (1) SACR 310 (SCA): distinguished

Setlogelo v Setlogelo 1914 AD 221: referred to

Sithonga v Minister of Safety and Security and Others 2008 (1) SACR 376 (Tk): referred to

Street Pole Ads Durban (Pty) Ltd and Another v Ethekwini Municipality 2008 (5) SA 290 (SCA): dictum in para [15] approved H

Thint (Pty) Ltd v National Director of Public Prosecutions; Zuma v National Director of Public Prosecutions 2009 (1) SA 1 (CC) (2008 (2) SACR 421; 2008 (12) BCLR 1197): dictum in para [89] followed, and paras [220] – [223] distinguished

Yeko v Qana 1973 (4) SA 735 (A): dictum at 739D – G applied

Yuras v District Commandant of Police, Durban 1952 (2) SA 173 (N): explained. I

Statutes Considered

Statutes

The National Gambling Act 7 of 2004, s 9(1): see Juta's Statutes of South Africa 2011/12 vol 2 at 2-513. J

2012 (6) SA p69

Case Information

Appeal against discharge of rule nisi and refusal of spoliation order. A

JP de Bruin SC (with N Jagga) for the appellant.

M Donen SC (with ZZ Matebese) for the respondents.

Cur adv vult. B

Postea (May 31).

Order:

1.

The appeal is upheld with costs, including the costs of two counsel. C

2.

The order of the court below is set aside and replaced with the following:

'(a)

the rule nisi issued by Moloto AJ on 30 January 2010 is confirmed;

(b)

the search warrant issued by the sixth respondent on 22 January 2010 is declared unlawful; D

(c)

the first, third and fourth respondents are ordered forthwith to restore the assets, referred to in annexure WGP1 to the first respondent's answering affidavit, to the applicant;

(d)

the first, second, third and fourth respondents are ordered to pay the applicant's costs jointly and severally, the one paying the others to be absolved, such costs to include the costs E consequent upon the employment of two counsel.'

Judgment

Mhlantla JA (Cloete JA, Heher JA, Snyders JA and McLaren AJA concurring):

Introduction F

[1] This appeal, with the leave of the court below, turns on the effect of the declaration of invalidity of a search-and-seizure warrant. It also involves the question whether the appellant was entitled to institute a spoliation application and, more particularly, whether the fact, that his G possession of the goods was and remains illegal, is a bar to his being restored to possession thereof. The issues arising on appeal will best be understood in the light of the background facts that follow.

Background H

[2] The North West Gambling Board, the first respondent, is a juristic person established in terms of s 3 of the North West Gambling Act 2 of 2001 (the Act). I shall hereafter refer to the first respondent as the board. The Act provides for the regulation of gambling activities in the North West Province. The board has, in terms of s 4, certain powers, including I the powers to oversee gambling activities and investigate illegal gambling throughout the province, and to exercise such powers and perform such functions and duties as may be assigned to it in terms of the Act and any other law. The board and the South African Police Service (SAPS) agreed to co-operate with regard to the investigation of illegal gambling in the province. J

2012 (6) SA p70

Mhlantla JA (Cloete JA, Heher JA, Snyders JA and McLaren AJA concurring)

A [3] On 22 January 2010 Mr Wilfred Pitso, the third respondent, who is an inspector in the employ of the board, inspected the business premises of Mr Svetlov Ivanov, the appellant. As it appeared to the third respondent that gambling activities were taking place in contravention of the Act, he requested members of SAPS to conduct further investigations B and to apply for a search warrant. Pursuant thereto, members of the SAPS applied for a search warrant from the magistrate, the sixth respondent, who serves in the court which has jurisdiction over the appellant's business premises in Rustenburg. The sixth respondent issued the search warrant in terms of ss 20, 21 and 25 of the C Criminal Procedure Act 51 of 1977 (the Criminal Procedure Act) read with s 65(6) – (8) of...