Minister of Safety and Security v Van der Merwe and Others

• Jurisdiction: South Africa
• Judge: Ngcobo CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J, Mthiyane AJ, Nkabinde J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 07 June 2011
• Citation: 2011 (2) SACR 301 (CC)
• Docket Number: 90/2010
• Hearing Date: 03 March 2011
• Counsel: RF van Rooyen SC (with A Erasmus and G Goosen) for the applicant. A Katz SC (with N Lewis) for the respondents.
• Court: Constitutional Court

Mogoeng J (Ngcobo CJ, Moseneke DCJ, Cameron J, Froneman J, a Jafta J, Khampepe J, Mthiyane AJ, Nkabinde J, Van der Westhuizen J and Yacoob J concurring):

Introduction

[1] The main question in this application for leave to appeal is whether B search and seizure warrants are valid, despite their failure to mention the offences to which the search relates. The answer depends on whether the common-law intelligibility principle, properly understood, requires that the offence be specified in the search and seizure warrants issued in terms of s 21 of the Criminal Procedure Act [1] (CPA). C

Parties

[2] The applicant is the Minister for Police (Minister). [2] The first respondent is Mr Gary Walter van der Merwe. He is the general manager of the sixth and tenth respondents and a director of the eighth, ninth, thirteenth and fifteenth respondents. The second and third respondents D are his wife and mother, respectively. The fourth respondent is a director of some of the respondent companies, and the fifth to fifteenth respondents are companies in which the first respondent has a financial interest.

Factual background

[3] The Criminal Investigations Unit of the South African Revenue E Service (SARS) suspected some of the respondents of having committed financial irregularities and of involvement in criminal activities. In collaboration with the Director of Public Prosecutions for the Western Cape Province, SARS caused the Commercial Branch of the South African Police Service (SAPS) to investigate possible violations of the F Income Tax Act, [3] fraudulent claims in contravention of the Value-Added Tax Act, [4] and money-laundering in violation of the Prevention of Organised Crime Act. [5]

[4] Superintendent Kotze was assigned the case for investigation. When the need arose for search and seizure operations to be conducted at the G premises linked to the respondents, Superintendent Kotze and employees of SARS deposed to affidavits in support of the issuing of the search and seizure warrants in terms of s 21 read with s 20 of the CPA. [6]

[5] Armed with these affidavits, which set out the offences which the respondents were suspected of having committed, Superintendent Kotze H

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A successfully approached a magistrate at the magistrates' court, Cape Town, for the issuing of three warrants. The first was for the Zonnekus home of the first respondent, which he shares with his wife and mother, the second for the business premises of various respondents at Helibase, and the third for the residential premises of the fourth respondent at B Royal Ascot. These warrants are at times collectively referred to as the Cape Town warrants.

[6] The fourth and fifth warrants were issued by magistrates who serve in courts which have jurisdiction over the Bellville and Randburg premises of Carrim, Maritz and Associates, the accountants for a number of the C respondents. Since the validity of these warrants does not fall for determination in this court, nothing more need be said about them.

[7] The Cape Town warrants were, but for the naming of the person and the description of the property to be searched, phrased in identical D terms. Each was titled 'Search Warrant [Section 20, 21 and/or 25 of the Criminal Procedure Act, (Act 51 of 1977)]' and had three identical annexures. Annexure A consisted of the names of individuals who were authorised to conduct the search. Annexure B specified the articles that could be seized during the investigation. This annexure set out 18 items. E Items numbered 13, 16, 17 and 18 allowed for the seizure of articles relevant to the investigation. Annexure C authorised the seizure and

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duplication of electronic devices which had a bearing on the investigation. A The warrants and their annexures were made available to persons present at the Zonnekus, Helibase and Royal Ascot properties prior to the commencement of the search.

[8] Importantly, neither the warrants nor their annexures specified the offences under investigation. Nor did they describe the nature of the B investigation.

[9] Members of SAPS and SARS conducted the search and seizure operations in terms of the warrants and removed several items from the targeted premises. C

Proceedings in the High Court

[10] The respondents were displeased with these operations. Consequently, they approached the Western Cape High Court, Cape Town [7] (High Court) to challenge the validity of the warrants on the following grounds: D

(a)

The suspected offences were not stipulated in the warrants; and

(b)

the magistrates failed to apply their minds to the applications for the warrants, and this rendered them fatally defective in law.

[11] In relation to the first ground, the High Court observed that the Constitution requires the specification of the offence in a warrant. E Relying on Magajane, [8] it further said that a person's privacy may be impaired by a warrant only in the least intrusive manner and on justifiable grounds. In that case this court stated:

'Exceptions to the warrant requirement should not become the rule. A warrant is not a mere formality. It is the method tried and tested in our criminal procedure to defend the individual against the power of F the State, ensuring that police cannot invade private homes and businesses upon a whim, or to terrorise. Open democratic societies elsewhere in the world have fashioned the warrant as the mechanism to balance the public interest in combating crime with the individual's right to privacy. The warrant guarantees that the State must justify and support intrusions upon individuals' privacy under oath before a G neutral officer of the court prior to the intrusion. It furthermore governs the time, place and scope of the search, limiting the privacy intrusion, guiding the State in the conduct of the inspection and informing the subject of the legality and limits of the search. Our history provides much evidence for the need to adhere strictly to the warrant requirement.' [9] [Footnote omitted.] H

[12] The High Court did not follow the majority decision in Pullen [10] which rejected the requirement that the offence has to be mentioned in

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A a warrant for it to be valid. Instead it relied on Hertzfelder [11] and the minority in Pullen for the conclusion that the warrant would be invalid if the offence were not stipulated in it. Powell [12] was also relied on in support of this conclusion. Based on these cases, the court declared the three Cape Town warrants invalid and set them aside on the ground that B they did not stipulate the offence. [13]

[13] The challenge to the validity of the Randburg warrant was not entertained for want of jurisdiction, whereas the validity of the Bellville warrant was attacked on the basis that it was overbroad. [14] The court found no merit in that challenge and dismissed it.

C [14] The assertion that the magistrates failed to apply their minds to the application was also found to be without merit.

[15] Since the respondents had attained substantial success, the High Court made a costs order in their favour. The Minister took the matter D on appeal to the Supreme Court of Appeal, and the respondents cross-appealed the decision relating to the Bellville warrant, with leave of the High Court.

Proceedings in the Supreme Court of Appeal

[16] The Supreme Court of Appeal upheld the decision of the High E Court in respect of the Cape Town search warrants. Nevertheless, it rejected the High Court's reliance on Hertzfelder for the proposition that intelligibility requires the specification of the offence. The reason advanced for the rejection was that the warrant in Hertzfelder was set aside because of its vague description of the articles to be seized. The F court also held that Powell is not authority for the offence-specification requirement because the warrant in Powell was set aside for its overbreadth. Despite its observation that this issue was not before this court in Thint [15] when it pronounced itself on this requirement, the court did rely on Thint [16] as authority for its conclusion that a warrant should G specify the offence.

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[17] In dealing with the cross-appeal, a useful distinction was drawn A between vagueness and overbreadth in the following terms:

'Questions that arise in relation to [whether a warrant authorises more than is permitted by statute] will generally fall into either of two different categories. The first is whether the warrant is sufficiently clear as to the acts that it permits. For where the warrant is vague it follows B that it will not be possible to demonstrate that it goes no further than is permitted by the statute. If a warrant is clear in its terms a second, and different, question might arise, which is whether the acts that it permits go beyond what is permitted by the statute. If it does then the warrant is often said to be overbroad and will be invalid so far as it purports to authorise acts in excess of what the statute permits. C A warrant that is overbroad might, depending upon the extent of its invalidity, be set aside in whole, or the bad might be severed from the good.' [17]

The court then concluded that the Bellville warrant was neither vague nor overbroad. [18] D

[18] For these reasons, the appeal and cross-appeal were dismissed with costs. Dissatisfied with the decision of the Supreme Court of Appeal, the Minister approached this court for leave to appeal on the grounds set out below.

Issues E

[19] The preliminary issue to be determined is the application for leave to appeal, and the main issue is the alleged invalidity of the search warrants. Several subsidiary questions flow from the main issue and they are whether: F

(a)

The common-law intelligibility principle requires that the offence be specified in a warrant issued in...