Van der Merwe and Others v Additional Magistrate, Cape Town and Others

• Jurisdiction: South Africa
• Judge: Davis J and Saldanha J
• Judgment Date: 24 December 2008
• Citation: 2010 (1) SACR 470 (C)
• Docket Number: 5880/2008 (A)
• Hearing Date: 02 December 2008
• Counsel: P Hodes SC (with A Katz) for the applicants. A Le Grange SC (with T Masuku) for the second and fourth respondents. R Van Rooyen SC for the third and fifth respondents.
• Court: Cape Provincial Division

Davis J and Saldanha J:

Introduction

[1] This application concerns the validity of certain search warrants and search and seizure operations which were conducted pursuant to search warrants during 2008.

[2] Much of the background to these operations is not disputed and can D perhaps best be gleaned from second and fourth respondents' answering affidavit deposed to by Superintendent Kotze, a member of the commercial branch of the South African Police Service. She avers that, on 4 December 2007, her unit received a request from the office of the Director of Public Prosecutions for assistance in a tax investigation. E Subsequently, she was appointed as the investigating officer. The case concerned a criminal investigation relating to charges against first applicant, the general manager of sixth and tenth applicants and the director of the eight, ninth, thirteenth and fifteenth applicants, with regard to violations of income tax and value added tax (VAT) legislation, F as well as in respect of exchange control and civil aviation violations.

[3] During the course of her investigations she obtained a comprehensive affidavit from the third respondent, Mr Colin Gillespie, criminal investigator in the employ of SARS. She also prepared her own affidavit with a view of obtaining search warrants for various premises connected G to applicants.

[4] Three separate sets of search warrants were generated in respect of premises in the Western Cape; one for Zonnekus, being the home of first applicant, secondly one at Helibase, being business premises of various H of the applicants, and thirdly, one for Royal Ascot, the premises of fourth applicant. In addition, as Ms Kotze states in her affidavit, it was decided to apply for a search warrant for the premises of applicants' accountants/auditors, Messrs Carrim, Maritz & Associates, situated in Midrand and therefore located within the jurisdiction of Randburg I magistrates' court. All four applications for warrants were prepared on essentially the same grounds.

[5] Superintendent Kotze states in her affidavit that she travelled to Randburg and met with seventh respondent, magistrate Mkhari, on 25 February 2008. She handed Mr Mkhari the application and explained J

Davis J and Saldanha J

A the reasons for bringing the application in his jurisdiction. On 27 February 2008 Mr Mkhari indicated that he required more time to come to a final decision. On 28 February 2008 he signed and authorised the Randburg search warrant.

[6] On 6 March 2008 the chief magistrate, Cape Town, Mr Maku, B informed Superintendent Kotze that Mr Lekuleni, an additional magistrate on his staff, had been appointed to deal with the matter.

[7] According to Superintendent Kotze, she met with magistrate Lekuleni on 6 March 2008 and explained the nature and extent of the C investigation. He indicated that he would like to take his time to study the application and that they should return the following day, 7 March 2008. Mr Lekuleni raised certain procedural difficulties with the draft warrants, and asked questions, but on 7 March 2008 he finally issued them.

D [8] On 10 June 2008 a further search warrant was issued regarding the Bellville premises of Carrim, Maritz & Associates. In this case, the warrant was considered by the senior magistrate, Bellville, being sixth respondent. According to Superintendent Kotze, she explained the nature of the warrants and the complicated matter upon which the need for warrants had been based. The magistrate, Mrs Du Toit, carefully E went through the documentation and spent some time considering the application, prior to authorising the warrant.

Applicants' case

[9] In assailing the validity of these warrants, applicants base their F challenge on two central arguments:

1.

in the case of four of the five impugned search warrants there was no mention of the suspected offences that were under investigation;

2.

the various magistrates failed to apply their mind to the application for such warrants and accordingly the warrants were fatally defective G in law.

In addition, applicants contend that, other than reasons provided for by magistrate Lekuleni, there were no reasons provided by any of the magistrates for their decision. None of these magistrates filed affidavits in this application. Thus, applicants contend that the court had not been H informed by these magistrates what they had read in preparation for their various decisions, nor what they considered prior to issuing the relevant warrants. Any evidence provided by Superintendent Kotze concerning the decision making process of the various magistrates stood to be rejected as hearsay evidence.

A description of the warrants I

[10] In essence, the three warrants for Zonnekus, Helibase and Royal Ascot, which were issued by first respondent, take a similar form.

[11] Each warrant consists of one page and then refers to three annexures, J 'A', 'B' and 'C'. The heading of the one-page search warrant states:

Davis J and Saldanha J

'SEARCH WARRANT A

[Section 20, 21, and/or 25 Criminal Procedure Act, (Act 51 of 1977)]

To persons as listed in Annexure A hereto.'

Below the heading is a box in which a preamble to the operative part of the search warrant is contained, and it refers to articles, 'to wit, as per B annexure B hereto'. Below that are eight boxes marked (a) - (h), which each has an 'X' marked next to the box. Immediately below those is the continuation of the preamble which states:

'and which is in the possession of/under the control of/upon or at a premises at/upon the person of Gary Van der Merwe, Monique Van der Merwe, Fern Van der Merwe at Zonnekus Mansions, Chandlers Close, C Woodbridge Island, Milnerton, Cape Town'.

The operative part of the search warrant then states:

'THESE ARE THEREFORE to authorise you to search during the day time * the identified person/to enter and search the identified premises and to search any person found on or at such premises and to direct you D to seize the said articles as described in Annexure B hereto if found (including inspecting, searching and seizing computer-related objects in the manner authorised in Annexure C hereto), and to * deal with it according to law/bring it before me to be dealt with according to law.'

The first respondent did not delete any part of the pro-forma search E warrant. For example, at the end of the operative part of the search warrant, he had a choice whether to delete either 'deal with it according to law' or 'bring it before me to be dealt with according to law'.

[12] The three annexures, 'A', 'B', and 'C', were attached to the printed warrant. Annexure 'A' consists of a list of named individuals who are F authorised by the search warrant to conduct the search. Annexure 'B' lists the articles which may be seized during the search. There are 18 separate items so set out.

As stated above, the suspected offences that were under investigation are not mentioned at all in the 18 items. Similarly, the nature of the investigation is not described at all. G

Despite the absence of any detail as to the nature of the investigation, reference is made to documentation 'relevant to the investigation' ('ondersoek') in terms of items 13, 15, 16, 17 and 18 of annexure 'B'.

For example, item 15, which does not limit the search to the undefined 'ondersoek', states: H

'Enige stawing van betalings gemaak tussen die volgende individue Gary van der Merwe, Monique van der Merwe, Robert A van der Merwe, Karin G van der Merwe, Fern van der Merwe, Alan Fanaroff, Sean Pautz, Gary Fox and William Olmstead.'

Item 17, like item 15, is extremely wide. It permits seizure of any I information relating to the lifestyles of the named individuals, insofar as it is relevant to the indeterminate, and indeed open-ended, investigation ('ondersoek').

Item 18 refers, in general, to any electronic computer data 'wat wel of moontlik betrekking het op die ondersoek'. J

Davis J and Saldanha J

A Annexure 'C' authorises the manner of inspecting, searching and seizing computer-related objects. Annexure 'C' sets out four methods of searching and seizing. Item 4 of annexure 'C' also has references to: ' all information which has a bearing, or might have a bearing, on the investigation in question'.

B It also permits for searches 'at a location removed from the premises'.

[13] The Randburg warrant which was issued on 28 February 2008 also consists of one page and makes reference to annexures 'A' and 'B'. Annexure 'A' refers to the three police officers who are authorised to conduct the search. Annexure 'B' consists of 13 items which set out C 'dokumente en bewyse relevant tot die ondersoek'. Applicants point out there is no identification of the suspected offences under the investigation.

[14] The final search warrant, being the search warrant authorising the D search of the Bellville premises of Carrim, Maritz & Associates, again takes the form of a printed page. Annexure 'A' specifies the officers from the South African Police Service and the official from SARS who are authorised to attend to the search. Annexure 'B' consists of 6 items which detail the articles which may be seized. Applicants contend, in particular, that item 5 of annexure 'B' is excessively wide in scope:

E 'Enige stawing van betalings gemaak tussen die volgend individue Gary van der Merwe, Monique van der Merwe, Robert A van der Merwe, Karin G van der Merwe, Fern van der Merwe, Alan Fanaroff, Sean Pautz, Gary Fox and William Olmstead.'

[15] The major difference, however, between this warrant and the other F warrants is the inclusion of annexure 'C'. In this annexure a detailed description is provided of the reasonable grounds which the investigating authorities consider exist to sustain charges of income tax and VAT fraud against various of the applicants. Not...