Piperdi v Minister of Police

• Jurisdiction: South Africa
• Citation: 2020 (1) SACR 572 (ECG)

Piperdi v Minister of Police
2020 (1) SACR 572 (ECG)

2020 (1) SACR p572

Citation	2020 (1) SACR 572 (ECG)
Case No	CA&R 71/2019
Court	Eastern Cape Division, Grahamstown
Judge	Pickering J and Rugunanan AJ
Heard	August 23, 2019
Judgment	September 10, 2019
Counsel	M du Toit for the appellant.; N James for the state.

Flynote : Sleutelwoorde

Search and seizure — Search without warrant — Validity of — Police alleging that plaintiff consented — Evidence indicating, however, that plaintiff not really given opportunity to refuse — Circumstances such that opportunity to obtain warrant, but police failing to do so — Search and seizure unlawful — Criminal Procedure Act 51 of 1977, ss 22(a) and (b).

Headnote : Kopnota

The appellant appealed against the dismissal by a magistrate of his action for damages for unlawful search and seizure. He testified that two police officers arrived at his premises and told him: 'You say you are innocent so you do not mind if we walk through.' He stated that he gave way to the will of the policemen because he felt scared and was intimidated by their presence. The police officers did not ask for his permission. A third police officer dispossessed him of two cellphones and took him to their offices where they connected the phones to a laptop. He told them that he needed the phones for his business. It subsequently became necessary for him to contact an attorney for assistance to retrieve the phones and he incurred legal expenses in the amount of R5750 in this respect.

Held, that the contention advanced on behalf of the appellant, that consent to conduct the search was not obtained and that his conduct was not voluntary, was correct. (See [8].)

2020 (1) SACR p573

Held, further, that, considering that the one police officer had spent approximately an hour and a half at the appellant's premises, it was concerning that no evidence was elicited from him as to why he could not have secured the premises while his colleague, or perhaps some other member, applied for a search warrant. In the circumstances, the actions of the police officials were not reasonable and justifiable, whether in terms of s 22(a) or (b) of the Criminal Procedure Act 51 of 1977. (See [13] – [14].)

Held, accordingly, that the magistrate's rejection of the appellant's version of the seizure was erroneous and no evidence had been led by the respondent's witnesses which would have justified the seizure under s 22(b). The appeal had to be upheld and the matter remitted to the magistrate for determination of general damages. (See [16] and [20].)

Cases cited

Aaron's Whale Rock Trust v Murray & Roberts Ltd and Another 1992 (1) SA 652 (C): referred to

Helderberg Car & Propshaft Centre CC t/a Propshaft Centre v Nexor 519 t/a Protec Crane Hire [2012] ZAECGHC 41: referred to

Kunz v Swart and Others 1924 AD 618: referred to

Magobodi v Minister of Safety and Security and Another 2009 (1) SACR 355 (Tk): dictum at 360g applied

Mistry v Interim Medical and Dental Council of South Africa and Others 1998 (4) SA 1127 (CC) (1998 (7) BCLR 880; [1998] ZACC 10): referred to

R v Dhlumayo and Another 1948 (2) SA 677 (A): referred to

S v Francis 1991 (1) SACR 198 (A): referred to

S v Hadebe and Others 1997 (2) SACR 641 (SCA): referred to

S v Monyane and Others 2008 (1) SACR 543 (SCA): referred to

S v Nqangule [2008] ZAECHC 98: referred to

Stellenbosch Farmers' Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA): dictum in para [5] applied

Taljaard v Sentrale Raad vir Koãperatiewe Assuransie Bpk 1974 (2) SA 450 (A): referred to.

Case Information

M du Toit for the appellant.

N James for the state.

An appeal from the dismissal by a magistrate of an action for damages arising from an unlawful search and seizure.

Order

(i)

The appeal is upheld with costs.

(ii)

The matter is remitted to the magistrate for determination of general damages.

(iii)

The magistrate's order is set aside and substituted with the following order:

'Judgment is granted in favour of the plaintiff for:

(a)

Payment of the amount of R5750,08 as and for special damages.

(b)

Interest thereon at the prevailing legal rate from date of judgment to date of payment.

(c)

Costs of suit.'

2020 (1) SACR p574

Judgment

Rugunanan AJ (Pickering J concurring):

[1] The appellant (as plaintiff in the court a quo) instituted action in the magistrates' court, Port Elizabeth, in which he claimed damages for an unlawful search and seizure conducted by members of the South African Police Service. A search of the appellant's business premises in Arcadia was conducted on 17 April 2014 and in the process two of his cellphones were seized.

[2] The appeal to this court is against the magistrate's dismissal of the action. The dismissal was based on a factual finding that the respondent's witnesses, WO Zaine Bosch and Capt Rynhardt Swanepoel, were good witnesses whose versions were not improbable. This conclusion is informed by the magistrate's observation of the demeanour of the witnesses when they testified, as he found them to be clear, calm and forthright during examination-in-chief and in cross-examination. It is on this basis that the magistrate accepted the version of the respondent's witnesses, that the appellant consented to the search and seizure; and rejected the appellant's version, that there was no consent, as highly improbable. In my view the magistrate's finding was wrong.

[3] Tritely, it is only in exceptional cases that a court of appeal will be entitled to interfere with the evaluation of oral evidence by a trial court. [1] A trial court has the benefit of seeing and hearing the witnesses, assessing their personality and demeanour, and evaluating the content of their evidence in the light of the atmosphere of their recreation of events. A trial court is in the best possible position to determine the essence of what was said and how it impacted on the person against whom it was said. [2] In S v Monyane and Others [3] it is stated that a court's powers to interfere on appeal with the findings of fact of the trial court are limited. In the absence of a demonstrable and material...