Minister of Safety and Security and Others v Mohamed and Another

• Jurisdiction: South Africa
• Judgment Date: 21 September 2011
• Citation: 2012 (1) SACR 321 (SCA)

Minister of Safety and Security and Others v Mohamed and Another
2012 (1) SACR 321 (SCA)

2012 (1) SACR p321

Citation	2012 (1) SACR 321 (SCA)
Case No	598/10; [2011] ZASCA 134
Court	Supreme Court of Appeal
Judge	Navsa JA, Heher JA, Cachalia JA, Snyders JA and Plasket AJA
Heard	August 26, 2011
Judgment	September 21, 2011
Counsel	F Joubert SC (with D Kusevitsky) for the first and second appellants.; R Jaga for the third appellant.; Z Omar (attorney) for the respondents.

Flynote : Sleutelwoorde

Appeal — Leave to appeal — Extension of grounds of appeal — Appeal to full court of High Court from decision of single judge — Full court having no jurisdiction to extend ground of appeal upon which leave to appeal C granted — If appellant dissatisfied with grounds of appeal upon which leave to appeal granted, he/she has to direct petition to Supreme Court of Appeal for extension of such grounds of appeal.

Search and seizure — Search — Search warrant — Validity — Provisions of ss 20 and 21 of Criminal Procedure Act 51 of 1977 striking balance between need for search and seizure powers and right to privacy of D individuals — Such provisions providing sufficient safeguards against unwarranted invasion of right to privacy — In legal proceedings relating to validity of warrant, where constitutionality of ss 20 and 21 not attacked, starting point is whether warrant complies with relevant statutory provisions — Two criteria for validity that apply to all warrants are that warrant must be intelligible or capable of being understood and must authorise no E more than permitted by authorising statute.

Headnote : Kopnota

The Supreme Court of Appeal has jurisdiction to extend the grounds of appeal on which a High Court has granted leave to appeal. But where a full bench of a High Court is considering an appeal from a decision of a single judge, F it has no jurisdiction to extend the grounds of appeal upon which leave was granted. If an appellant is not satisfied with the fact that the single judge granted leave to appeal on one ground alone, that appellant has to direct a petition to the Supreme Court of Appeal, not the full court, to extend the grounds of appeal. Thus, even if the parties in the full court ask that court to extend the grounds of appeal, other than when a point of law arises, that court has no jurisdiction to do so. (Paragraphs [17]–[18] at 328e–j.) G

2012 (1) SACR p322

Search warrants are statutory creations designed to assist the State in its fight against crime. It has been held that the impact it has on an individual's right to privacy is necessary in order to strike a balance between the interests of the State and that of the individual. The provisions of ss 20 and 21 of the Criminal Procedure Act 51 of 1977, like those of s 29 of the National Prosecuting Authority Act 32 of 1998, do strike a balance between the need B for search and seizure powers and the right to privacy of individuals. Thus construed, these provisions provide sufficient safeguards against an unwarranted invasion of the right to privacy. It follows, therefore, that the limitation of the privacy right in these circumstances is reasonable and justifiable. Where in legal proceedings relating to the validity of a search warrant the constitutionality of ss 20 and 21 of the Criminal Procedure Act C 51 of 1977 and therefore its impact on a person's rights to privacy have not been attacked, the starting point in a consideration of the validity of the warrant is to establish whether the warrant complies with the relevant sections. There are two criteria for validity that will apply to all warrants for search and seizure, namely the warrant must be intelligible or capable of being understood and it must also authorise no more than is permitted by the authorising statute. (Paragraphs [20], [21] and [24] at 329c–331a and 331h–332a.) D

Annotations:

Cases cited

Reported cases

Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) (1996 (4) BCLR 449): applied E

Douglas v Douglas [1996] 2 All SA 1 (A): referred to

Harlech-Jones Treasure Architects CC and Others v University of Fort Hare 2002 (5) SA 32 (E): dictum at 51I – 52B applied

Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai F Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2000 (2) SACR 349 (CC) (2001 (1) SA 545; 2000 (10) BCLR 1079): applied

Minister of Land Affairs and Agriculture and Others v D&F Wevell Trust and Others 2008 (2) SA 184 (SCA): referred to

National Director of Public Prosecutions v Moodley and Others 2009 (1) SACR 461 (SCA) (2009 (2) SA 588): dictum in para [10] applied

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

Ngqumba en 'n Ander v Staatspresident en Andere; Damons NO en Andere v Staatspresident en Andere; Jooste v Staatspresident en Andere 1988 (4) SA 224 (A): referred to

Powell NO and Others v Van der Merwe NO and Others 2005 (1) SACR 317 (SCA) (2005 (5) SA 62; 2005 (7) BCLR 675; [2005] 1 All SA 149): H applied

Queenstown Girls High School v MEC, Department of Education, Eastern Cape, and Others 2009 (5) SA 183 (Ck): dictum at 186G – 187A applied

R v Mpompotshe and Another 1958 (4) SA 471 (A): referred to

Regional Magistrate Du Preez v Walker 1976 (4) SA 849 (A): dictum at I 852H – 853E applied

S v Safatsa and Others 1988 (1) SA 868 (A): dictum at 877A – D applied

Thint (Pty) Ltd v National Director of Public Prosecutions and Others; Zuma and Another v National Director of Public Prosecution and Others 2008 (2) SACR 421 (CC) (2009 (1) SA 1; 2008 (12) BCLR 1197): applied

Toich v The Magistrate, Riversdale, and Others 2007 (2) SACR 235 (C): J applied

2012 (1) SACR p323

Transnet Ltd v Rubinstein 2006 (1) SA 591 (SCA) ([2005] 3 All SA 425): A referred to.

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, ss 20 and 21: see Juta's Statutes B of South Africa 2010/11 vol 1 at 2-337

The National Prosecuting Authority Act 32 of 1998, s 29: see Juta's Statutes of South Africa 2010/11 vol 1 at 2-554.

Case Information

Appeal from a decision in the Western Cape High Court, Cape Town (Louw J, Moosa J and Allie J). The facts appear from the judgment of Snyders JA.

F Joubert SC (with D Kusevitsky) for the first and second appellants. C

R Jaga for the third appellant.

Z Omar (attorney) for the respondents.

Cur adv vult.

Postea (September 21).

Order

1.

The appeal is upheld with costs, including, in respect of the first and second appellants, the costs of two counsel. E

2.

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

'(a)

The application by the third appellant to lead further evidence is allowed with costs.

(b)

The appeal is upheld with costs. F

(c)

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

''The application is dismissed with costs.'

Judgment

Snyders JA (Navsa JA, Heher JA, Cachalia JA and Plasket AJA concurring):

[1] This matter commenced in the Western Cape High Court, Cape Town (Samela AJ sitting as court of first instance) and proceeded on appeal to the full court of that division (Louw J, Moosa J and Allie J) with the leave of the former court. The full court was split in their decision on appeal, Louw J being the minority. This court gave special leave to H appeal to it.

[2] The first appellant is the Minister of Safety and Security (the Minister). The second appellant, Superintendent Zeeman (Zeeman), was at all relevant times in the employ of the Minister and acted in that I capacity. The third appellant is magistrate Louw (the magistrate) in his official capacity. The first and second respondents, Messrs Mohamed and Hartley, occupied premises where Zeeman conducted a search and made seizures in terms of a warrant granted by the magistrate. The respondents applied to the court of first instance for an order setting aside the warrant and for the return of all the items seized. They were J

2012 (1) SACR p324

Snyders JA

A granted such an order. On appeal the majority decision in the court a quo, by and large, confirmed that order, but for very different reasons.

[3] On 24 January 2008 Zeeman applied for a search warrant in terms of ss 20 and 21(1) of the Criminal Procedure Act 51 of 1977 (the Act). The magistrate granted a warrant on the strength of information that was B placed before him. On 25 January 2008 Zeeman and several of his colleagues went to the premises identified in the warrant and executed the warrant. The first respondent lived at 16 Axminster Street, Muizenberg, and was at home when the warrant was executed. The second respondent and his family lived at adjacent premises, 16A Axminster Street, Muizenberg, and were also at home when the warrant was C executed. It is common cause that a large number of items were found and seized at 16 Axminster Street. Nothing was found or seized at 16A Axminster Street. The basis for the second respondent's participation in the proceedings has never received attention and it remains dubious. Be that as it may, it was this experience that motivated them to D approach the court of first instance for an order that the 'searches and seizures . . . were unlawful' and for the 'setting aside [of] the search warrants and directing that all objects/items seized from [their] homes during the raids carried out on 25 January 2008 be restored forthwith to [them]'. [1]

E [4] The respondents raised several grounds for their attack on the validity of the warrant. Those grounds can be summarised as follows:

(a)

there was no 'credible information that would give rise to the reasonable suspicion' required by the Act;

(b)

their rights to silence...