Combined Private Investigations and Another v Rossouw and Others (448/2012) [2012] ZAFSHC 134 (5 July 2012)
- Citation
- [2012] ZAFSHC 134
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- H. Murray
- Case number
- 448/2012
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- H. Murray
- Case number
- 448/2012
On this page
Professional case brief
Research organized from the available case record
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. GroenewaldDirector Public Prosecutions: Free State
ApplicantAC Rossouw
RespondentThe Minister of Police
RespondentThe Minister of Justice
RespondentThe Station Commissioner, SAPS, Virginia
Respondent Counsel: Adv. P. Zietsman SC03
Procedural history
Posture
Urgent Application / Interlocutory Application to Discharge or Confirm a Rule Nisi
04
Questions and positions
Legal issues
- 01
Whether the rule nisi retaining seized assets should be discharged or confirmed.
- 02
Whether the costs should follow the outcome of the application.
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
Legal principles
- 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.
- 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
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Judgment
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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