Ndabeni v Minister of Law and Order and Another

• Jurisdiction: South Africa
• Judge: Didcott J
• Judgment Date: 24 April 1984
• Citation: 1984 (3) SA 500 (D)
• Hearing Date: 17 March 1984
• Court: Durban and Coast Local Division

Didcott J:

At the end of the argument in this matter, which I heard a number of Saturdays ago, I ordered the second respondent, a police officer attached to the Security Branch, F to deliver forthwith to the applicant all but 25 of the 1 138 copies he had seized of a magazine called "Frank Talk". The first respondent was directed to pay the costs of the proceedings, including those the applicant had incurred by employing the services of two counsel. The reasons for my decision, I told those present, would be furnished in a G judgment I intended writing. This is that judgment.

I would rather have deferred the decision itself and given more thought to the questions I had to consider. There was, however, no time. The applicant needed the seized copies of the magazine so that he might distribute them, as he had planned to do, at a special function which was due to be held the next day in H Johannesburg. If he was entitled to their surrender at all, he had therefore to retrieve them at once. Otherwise any order in his favour would have come too late to serve his purposes. That explained the urgency of the proceedings, and my consequent willingness to hear them at a time when the Court did not ordinarily sit.

I The magazine had been published by a political movement known as the Azanian Peoples' Organisation or, to use the name's abbreviated version, AZAPO. The applicant was AZAPO's national organiser. It was common cause that the copies which the second respondent seized had been taken from the applicant, in whose possession

Didcott J

A they were at the time, and that the effect of the seizure had been to deprive him of such possession. They were found in and removed from a motor car which the police had stopped while he was travelling in it.

The reason for the seizure was the view the second respondent took that the publication of the magazine had been, and that B its distribution would be, hit by s 13 (1) (a) (v) of the Internal Security Act 74 of 1982. This refers to organisations which are unlawful, and it decrees that nobody may

"... advocate, advise, defend or encourage the achievement of any of the objects of the unlawful organisation or objects similar to the objects of such organisation, or perform any C other act of whatever nature which is calculated to further the achievement of any such object."

Section 56 (1) (a) of the same Act makes it an offence to disobey the prohibition. The unlawful organisation which the second respondent had in mind was te South African Students' Organisation or SASO, as that was colloquially called. SASO was D indeed an unlawful organisation for the purposes of the Act. In terms of the legislation then in force it had been declared during 1977 to be one. The second respondent believed that the magazine contained material which advocated, advised, defended or encouraged the achievement of some object of SASO or an object similar to such or which was calculated to further the E achievement of one or the other, that the magazine promoted the objects of SASO, as I shall put things more simply without claiming that this is an apt way to paraphrase the subsection's provisions when these are applied to SASO but intending it to serve merely as shorthand for them once they are, so that their permutations do not have to be repeated all the time.

F The second respondent acted on behalf of the State in seizing the copies of the magazine. He purported to take them under s 20 of the Criminal Procedure Act 51 of 1977, a section one finds in a chapter of the statute which starts with s 19 and finishes with s 36. Shorn of some wording that does not matter at present, s 20 goes thus:

"The State may, in accordance with the provisions of this G chapter, seize anything (in this chapter referred to as an article) -

(a)

which is concerned in or is on reasonable grounds believed to be concerned in the commission or suspected commission of an offence...;

(b)

which may afford evidence of the commission or suspected commission of an offence...; or

(c)

which is intended to be used or is on reasonable grounds believed to be intended to be used in the commission of an offence."

H Believing that the magazine promoted the objects of SASO, that its distribution would therefore amount to an offence and that its publication had already done so, the second respondent believed by the same token that the copies which he seized had been concerned in the completed offence and were intended to be I used in the planned one. They would also afford evidence of an offence or suspected offence, he thought, either that which had been committed in his eyes when the magazine was published or some other lurking in AZAPO's activities.

No warrant sanctioning the seizure had been obtained by the second respondent. That did not, however, matter. True it is that s 21 forbids the seizure of any article under s 20, except on the strength of a

Didcott J

A warrant duly issued which authorises the policeman concerned to search for and seize it. But this general rule, s 21 adds, is subject to the exceptions framed by the three sections which follow. And s 22, in those respects which are pertinent, declares:

"A police official may without a search warrant search any... premises for the purpose of seizing any article referred to in s 20... if he on reasonable grounds believes... that a B search warrant will be issued to him... if he applies for such warrant, and... that the delay in obtaining such warrant would defeat the object of the search."

The second respondent maintained that he had believed such to be the case, and the applicant did not call into question either the belief or its reasonableness. All that remains to be said on the point is that, according to the special and rather C unusual definition of "premises" which one sees in s 1 (1) of the Criminal Procedure Act, a motor vehicle falls within the word's meaning for the purposes of the legislation.

The second respondent's belief on the other score, his belief that the magazine promoted the objects of SASO with the result that to publish it had been criminal and to distribute it would D likewise be, was controversial by comparison, and highly so. That the second respondent had cherished the belief was not disputed by the applicant or challenged in argument by his counsel, Mr Gordon. That reasonable grounds for the belief had existed, however, was strenuously denied. Most of the debate E before me concerned the presence or absence of these.

I was not sure at the time, and I am still far from certain, that in the end this issue had to be decided, that it really arose after all. It had to do with the second respondent's contention that s 20 of the Criminal Procedure Act had empowered him to seize the copies he took And the success or F failure of the contention was relevant in turn to, indeed in the circumstances decisive of, the question whether the seizure had been a lawful measure or the unlawful act of spoliation of which the applicant complained. By the stage at which the proceedings were launched, however, the cause of the complaint had become, to all intents and purposes, not so much the G seizure of the copies as their retention. Once the seizure of goods is unlawful, so no doubt their consequent retention, ordinarily at any rate. But the converse is not necessarily true. The purpose for which the seizure was allowed may have been fully achieved, for instance, with the result that the justification for it is exhausted, together with all valid H reasons for keeping the seized goods any longer. There was much to be said in the present case for the proposition that, even if the seizure of the copies was unimpeachable, the second respondent had no right by the time the parties came to Court to retain more than a handful in pursuance of it, that by then he was obliged on any footing to return the rest to the applicant. And, if the proposition was sound, the seizure's I lawfulness or unlawfuless was neither here nor there, since the applicant had become entitled without further ado to get the bulk back and that was all he wanted when the argument eventually closed.

The second respondent's reasons for retaining the seized copies, as distinct from his reasons for having seized them in the first place, were

Dicott J

A not very clear. He had taken them in order to investigate the magazine's contents. Information which he had received had given him some idea of these. But he did not know for certain what lay between the covers. He had to verify that. He had to discover the details for himself, in any event, and to evaluate their effect. He must soon have realised, however, that he B needed no more than a specimen or two to accomplish all this. It was obvious once he had satisfied himself that a single issue of the magazine was involved, that the copies therefore matched one another. Yet he kept every copy. The only explanation which emerges from his affidavit is that he had in mind the possibility of criminal charges against persons C associated with AZAPO, resulting either from the publication of the magazine or from other activities, and that the copies would or might well be required as exhibits were a prosecution to ensue. It was quite unnecessary, however, to hold on to all of them for that purpose, indeed to keep more than the handful of which I have spoken, one to serve as the exhibit itself and the remainder to be used as duplicates by D those engaged in the case. Mr McCall, who represented both respondents, tried to persuade me that the lot were needed, in case anything turned on their quantity. He did not succeed. I had difficulty in seeing how the particular number seized could ever matter. If it nevertheless did, it was surely provable by E the second respondent's own testimony, corroborated no doubt by his records. To imagine a court anxious to...