Zoeco System Managers CC v Minister of Safety and Security NO and Others
Jurisdiction | South Africa |
Citation | 2013 (2) SACR 545 (GNP) |
Zoeco System Managers CC v Minister of Safety and Security NO and Others
2013 (2) SACR 545 (GNP)
2013 (2) SACR p545
Citation |
2013 (2) SACR 545 (GNP) |
Case No |
54447/12 |
Court |
North Gauteng High Court, Pretoria |
Judge |
Teffo J |
Heard |
October 16, 2012 |
Judgment |
December 6, 2012 |
Counsel |
N Jagga for the applicant. |
Flynote : Sleutelwoorde
Search and seizure — Search warrant — Validity of — Clear from evidence that applicant for warrant did not know what he was to search for and E seize — Necessary jurisdictional facts not established.
Headnote : Kopnota
The applicant brought an urgent application against the respondents seeking the return of goods that had been seized under a search warrant. It appeared that the search and seizure operation in the present matter was the second F one of its kind carried out at the premises of the applicant. The first search and seizure operation was based on a search warrant issued by a magistrate. The affidavit filed by the police officer who conducted the search and seizure (the third respondent) indicated that he had received information from the provincial Gaming Board that illegal gambling activities were taking place at the applicant's premises. He went to the applicant's premises G which were not licensed for any gambling activities and, through the use of agents, he conducted a police action at the premises which indicated that gambling activities were being conducted on the premises. On completion of the police action, he obtained a search warrant and, in May 2012, articles were seized in terms of the warrant. The warrant was subsequently declared invalid and the articles seized had to be returned to the applicant. The third respondent then conducted a further search and seizure operation on H 6 September 2012. It appeared that, in his statement that led to the issue of the second warrant, the third respondent did not give information in detail as to what had transpired that led to the issue of the warrant. Nothing in the statement explained the events after the return of the articles that had been seized in May and what actually transpired until 6 September 2012. The third respondent merely stated in general terms that he had received I information on a regular basis that the applicant just continued with illegal gambling activities. It did not state that he or his colleague visited the business premises again and found that the illegal gambling continued. The source of information, its nature and status were not disclosed.
Held, that it was clear that when the search and seizure took place in September, the applicant did not know what was to be searched for and seized in terms of the warrant: The warrant did not describe the articles to be searched for J
2013 (2) SACR p546
A and seized with any sufficient particularity. They were described in wide and vague terms and could not be reasonably associated with a search or seizure where the offence was internet gambling. There was also no information from the statement by the third respondent as to what information or defect existed in the warrant that related to the search and seizure in May, and what had been rectified, except the mere mention that B the defects had been rectified. In the circumstances, it was difficult to accept that sufficient evidence had been placed before the magistrate to constitute objective jurisdictional facts which could justify a reasonable suspicion by the magistrate regarding a suspected offence, or items connected with an offence. The warrant accordingly had to be set aside and the goods returned. (Paragraphs [51]–[57] at 555f–556c.)
Cases cited
Caledon Street Restaurants CC v D'Aviera 1998 JOL 1832 (SE): referred to C
Ivanov v North West Gambling Board and Others 2012 (2) SACR 408 (SCA) (2012 (6) SA 67; [2012] 4 All SA 1; 2012 ZASCA 92): applied
D Mandela and Others v Minister of Safety and Security and Another 1995 (2) SACR 397 (W): dicta at 404g – i applied
Minister of Safety and Security v Ndiniso [2007] SCA 29 RSA: referred to
Minister of Safety and Security v Van der Merwe and Others 2011 (2) SACR 301 (CC): applied
E Schoeman v Chairperson of the North West Gambling Board [2005] ZANWHC 81: not followed
Vukani Gaming Eastern Cape (Pty) Ltd and Others v Eastern Cape Gambling and Betting Board (ECD case No 606/10): applied
Yuras v District Commandant of Police, Durban 1952 (2) SA 173 (N): dicta at 173 applied.
Case Information
N Jagga for the applicant. F
TW Bester for the first to third respondents.
Urgent application for the setting-aside of a search warrant and for the return of items seized under the warrant. The facts appear from the G reasons for judgment.
Judgment
Teffo J:
[1] The applicant brought an urgent application against the respondents where it seeks an order for the return of the following movable property H which was seized by the servants of the first respondent, namely:
19 Computer boxes;
20 Screens;
16 Flash drives;
1 Keyboard;
I 1 Printer;
1 Router;
Cash in the amount of R10 718,30;
1 Cash register with keys;
1 Lucky draw drums with keys;
Slips and receipts;
J Keys and envelopes.
2013 (2) SACR p547
Teffo J
[2] The application is opposed. A
[3] The following facts are common cause between the parties:
The aforementioned goods were confiscated on 6 September 2012 from the applicant's business premises.
The police seized the said goods in terms of a search warrant that B was issued by the fourth respondent in her capacity as the magistrate, Witbank, in terms of s 21 of the Criminal Procedure Act 51 of 1977 (the Act).
The warrant was issued on the strength of an affidavit deposed to by Warrant Officer Tsoai, the third respondent in this matter.
There was a previous search warrant which was also issued by C the fourth respondent in terms of which goods were confiscated from the applicant's business premises on 4 May 2012 by the servants of the first respondent.
The aforementioned goods were returned to the applicant after it had launched an urgent application in this court due to the invalidity of the abovementioned search warrant. D
[4] The applicant challenges the validity of the search warrant that resulted in the search of its premises on 6 September 2012 and the seizure of the aforementioned goods. It claims the return of all the goods seized in terms of a mandament van spolie. E
Urgency
[5] The applicant contends that the executors of the warrant did not only dispossess it of the articles seized. They also despoiled it of the use of its business premises. The executors of the warrant, after the search and F seizure, locked up the business premises and took the keys.
[6] The applicant trades as an internet café providing electronic internet facilities and related facilities to the public.
[7] It contends further that its dispossession of the premises is continuing G and it has to pay rent in respect of the business premises.
[8] It is also the applicant's contention that it continues to pay staff salaries and water and electricity accounts for the business premises.
[9] Accordingly, it faces dire financial consequences if the dispossession H of its business is allowed to continue.
[10] According to the applicant, the searches and the seizures were done in a manner to cripple the business.
[11] The applicant contends that the warrant is bad in law and the I execution thereof was done in a way which brings the administration of justice into disrepute.
[12] The applicant states that, where there was an unlawful exercise of public power, society demands that it be corrected speedily so as not to lose confidence in the state organs involved. J
2013 (2) SACR p548
Teffo J
A [13] It further states that, if it had to bring this application in the ordinary course of events, it would have lost the business premises, become financially crippled and would have lost all the goodwill that the business built up.
[14] It alleges that the search and seizure constitute an infringement of B its right to privacy as guaranteed by s 14 of the Constitution of South Africa, 1996 (the Constitution).
[15] It contends that its urgency as referred to above is based on commercial urgency and that there are therefore special circumstances C that render the matter urgent.
[16] On the other hand, the respondents deny the applicant's allegations and submissions relating to the urgency of the matter.
[17] The issues for determination are the following:
whether the applicant is entitled to bring this application by way of urgency;
D whether the applicant is entitled to the relief sought in terms of prayer 2 of the notice of motion.
[18] Rules 6(12)(a) and (b) provide as follows:
In urgent applications the court or a judge may dispense with the E form and service provided for in these rules and may dispose of such matter at such time and place and in such manner and in accordance with such procedure (which shall as far as practicable be in terms of these rules) as to it seems meet.
In every affidavit or petition filed in support of any application under paragraph (a) of this subrule, the applicant shall set forth explicitly the circumstances which he avers render the matter F urgent and the reasons why he claims that he could not be afforded substantial redress at the hearing in due course.'
[19] In Caledon Street Restaurants CC v D'Aviera 1998 JOL 1832 (SE), Kroon J summarised the rules which pertain to urgent applications as G follows:
'Subject to the provisions of Rule 6(12) of the Uniform Rules...
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