Control Magistrate Durban v Azanian People's Organisation (455/84) [1986] ZASCA 44; [1986] 2 All SA 328 (A) (27 March 1986)

Control Magistrate Durban v Azanian People's Organisation (455/84) [1986] ZASCA 44; [1986] 2 All SA 328 (A) (27 March 1986)

The Supreme Court of Appeal held that the magistrate's failure to set out his grounds of suspicion in his affidavit did not, in the circumstances, justify the inference that he had no grounds for his belief. AZAPO had not made out a prima facie case of improper exercise of discretion, and the magistrate was not obliged to provide further detail, especially given the confidential nature of the information. The affidavits by police members were not directly linked to the information before the magistrate, and the lower court erred in its reasoning. The appeal was allowed, and the application was dismissed with costs.

Citation
[1986] ZASCA 44
Parties
Appellant: Control Magistrate, Durban; Respondent: Azanian People's Organisation (AZAPO)
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 March 1986
Case Number
455/84
Procedural Posture
Civil Appeal / Appeal From the Durban and Coast Local Division
Outcome
Appeal allowed; application dismissed with costs, including costs of two counsel.
Judges
Jansen JA, Viljoen JA, Van Heerden JA, Boshoff JA, Galgut AJA
Legal Topics
Search and Seizure, Warrant Validity, Exercise of Discretion, Confidential Information
Criminal Law Civil Procedure Search and Seizure Warrant Validity Exercise of Discretion Confidential Information

Case Brief

Summary, issues, holding and outcome

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Parties

Control Magistrate, Durban

Appellant

Azanian People's Organisation (AZAPO)

Respondent

Procedural Posture

Civil Appeal / Appeal From the Durban and Coast Local Division

Legal Issues

  1. 1 Whether the magistrate properly exercised his discretion in issuing search warrants under section 25(1) of the Criminal Procedure Act.
  2. 2 Whether the information placed before the magistrate constituted reasonable grounds for belief as required by the statute.
  3. 3 Whether the magistrate's failure to set out his grounds of suspicion in his affidavit justified the inference that he had no grounds for his belief.

Ratio Decidendi

The Supreme Court of Appeal held that the magistrate's failure to set out his grounds of suspicion in his affidavit did not, in the circumstances, justify the inference that he had no grounds for his belief. AZAPO had not made out a prima facie case of improper exercise of discretion, and the magistrate was not obliged to provide further detail, especially given the confidential nature of the information. The affidavits by police members were not directly linked to the information before the magistrate, and the lower court erred in its reasoning. The appeal was allowed, and the application was dismissed with costs.

Court Disposition

Appeal allowed; application dismissed with costs, including costs of two counsel.

Orders

  • The appeal is allowed with costs, such costs to include those attendant upon the employment of two counsel.
  • The order of the court a quo is altered to read: 'The application is dismissed with costs, such costs to include those attendant upon the employment of two counsel.'