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South Africa Judgment

Free State High Court, Bloemfontein

Combined Private Investigations and Another v Rossouw and Others (448/2012) [2012] ZAFSHC 134 (5 July 2012)

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Source document

01

Holding and result

The court found that the warrant authorising the search and seizure was invalid and the subsequent actions unlawful. As the main application had already resulted in an order for the return of the seized items, there was no purpose in confirming the rule nisi. The rule nisi was therefore discharged. The court saw no reason to depart from the general principle that costs follow the outcome, and ordered the first applicant to pay the costs of the application.

Court disposition

The rule nisi is discharged. The first applicant is ordered to pay the costs of the application.

Orders

  • The rule nisi is discharged.
  • The first applicant is ordered to pay the costs of the application.

02

Material facts

Parties

Combined Private Investigations

Applicant Counsel: Adv. W.J. Groenewald

Director Public Prosecutions: Free State

Applicant

AC Rossouw

Respondent

The Minister of Police

Respondent

The Minister of Justice

Respondent

The Station Commissioner, SAPS, Virginia

Respondent Counsel: Adv. P. Zietsman SC

03

Procedural history

  1. Posture

    Urgent Application / Interlocutory Application to Discharge or Confirm a Rule Nisi

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicants sought to retain the assets seized from the first respondent pending finalisation of the main application, arguing that the return of the items should be stayed until the lawfulness of the search and seizure was determined.
Respondent
The first respondent argued for the immediate return of the seized items, contending that the warrant of execution was invalid and the search and seizure unlawful. The SAPS conceded the unlawfulness and intended to return the items, opposing only the costs order.

05

Court’s reasoning

  1. 01

    Main application judgment (case no 141/2012)

    Where a warrant is found invalid and a search and seizure unlawful, the seized items must be returned to the affected party.

  2. 02

    General South African civil procedure

    Costs should follow the outcome unless there are compelling reasons to depart from this rule.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the warrant authorising the search and seizure was invalid and the subsequent actions unlawful. As the main application had already resulted in an order for the return of the seized items, there was no purpose in confirming the rule nisi. The rule nisi was therefore discharged. The court saw no reason to depart from the general principle that costs follow the outcome, and ordered the first applicant to pay the costs of the application.

Obiter and limits

  • The same facts and law underlie both the interlocutory and main applications, so the reasons need not be repeated here.
  • The SAPS conceded the unlawfulness of the search and seizure prior to the filing of opposing papers.

Court disposition

The rule nisi is discharged. The first applicant is ordered to pay the costs of the application.

  • The rule nisi is discharged.
  • The first applicant is ordered to pay the costs of the application.

Source and reliance status

Free State High Court, Bloemfontein

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Judgment reading view

Judgment text

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Source document

Free State High Court, Bloemfontein

Judgment

[2012] ZAFSHC 134

FREE STATE HIGH COURT, BLOEMFONTEIN

REPUBLIC OF SOUTH AFRICA

Case NO. 448/2012

In the application between:

COMBINED PRIVATE INVESTIGATIONS …...........................1st Applicant

DIRECTOR PUBLIC PROSECUTIONS:

FREE STATE ….......................................................................2nd Applicant

and

AC ROSSOUW ….................................................................1st Respondent

THE MINISTER OF POLICE …...........................................2nd Respondent

THE MINISTER OF JUSTICE …..........................................3rd Respondent

THE STATION COMMISSIONER, SAPS,

VIRGINIA …..........................................................................4th Respondent

HEARD ON: 10 MAY 2012

CORAM: MURRAY, AJ

JUDGEMENT BY: MURRAY, AJ

DELIVERED ON: 5 JULY 2012

_____________

[1] This is an interlocutory application in which this Court is asked to discharge or confirm the rule nisi which was granted on an urgent basis on 3 February 2012 and which was extended to 12 April 2012 and again to 10 May 2012 in order to serve before this Court together with the main application in case no 141/2012.

[2] The rule nisi was obtained to retain the assets seized from the first respondent herein (the applicant in the main application) on 5 December 2011 in the SAPS 13 store until the main application had been finalised.

[3] In the main application the said first respondent asked for the immediate return of the seized items. She based her application on allegations that the warrant of execution was invalid and that the search and seizure were therefore unlawful and that she was therefore entitled to their return.

[4] Only the present applicant (the fourth respondent in the main application) opposed her application for the return of the said items. Before the opposing papers could be filed, however, the second respondent herein, the SAPS, decided that the search and seizure had indeed been unlawful and informed the first respondent that it intended to return the seized items to her.

[5] That prompted this urgent application to stay the return of the seized items pending finalisation of the main application. Only the first and second respondents herein opposed the urgent application and only regarding the costs orders asked against them.

[6] This Court has found the warrant invalid and the subsequent search and seizure unlawful. Since the same facts and the same law underly both these applications, I do not intend to repeat the reasons for my findings which are dealt with fully in the main application.

[7] Due to the order made in the main application, namely that the seized items must be returned, it would serve no purpose to confirm the rule nisi.

[8] In my view there is no reason for the costs not to follow the outcome.

[9] WHEREFORE the following order is made:

The rule nisi is discharged.

The first applicant is ordered to pay the costs of the application.

______

H. MURRAY, AJ

On behalf of applicant: Adv. W.J. Groenewald Instructed by:

EG Cooper Majiedt Inc BLOEMFONTEIN

On behalf of fourth respondent: Adv. P. Zietsman SC

Instructed by:

Naudes

BLOEMFONTEIN

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