Malan v Minister of SAPS N.O. and Others (M279/2017) [2017] ZANWHC 59 (11 August 2017)

Malan v Minister of SAPS N.O. and Others (M279/2017) [2017] ZANWHC 59 (11 August 2017)

The court found that the affidavit supporting the application for the search and seizure warrant was fatally flawed because it was attested by a commissioner of oaths who was directly involved in the search and seizure operation. This contravened Regulation 7, which requires impartiality and independence. The...

Source-derived case information.

Citation
[2017] ZANWHC 59
Parties
Applicant: Jasper Johannes Malan; Respondent: The Minister of SAPS N.O.; Respondent: Lieutenant Colonel JM Mapanga N.O.; Respondent: The Magistrate: Rustenburg N.O.; Respondent: The Chairperson: North West Gambling Board
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
11 August 2017
Case Number
M279/2017
Procedural Posture
Urgent Application / Application for Urgent Relief and Reconsideration of Search Warrant
Outcome
The application succeeded. The search and seizure warrant was declared invalid, and the respondents were ordered to return the applicant's goods and monies.
Judges
R D Hendricks
Legal Topics
Search and Seizure, Commissioner of Oaths Impartiality, Validity of Warrant, Regulation 7 Non Compliance
Civil Procedure Administrative Law Search and Seizure Commissioner of Oaths Impartiality Validity of Warrant Regulation 7 Non Compliance

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Parties

Jasper Johannes Malan

Applicant

The Minister of SAPS N.O.

Respondent

Lieutenant Colonel JM Mapanga N.O.

Respondent

The Magistrate: Rustenburg N.O.

Respondent

The Chairperson: North West Gambling Board

Respondent

Procedural Posture

Urgent Application / Application for Urgent Relief and Reconsideration of Search Warrant

Legal Issues

  1. 1 Whether the search and seizure warrant issued by the Magistrate was valid and properly commissioned.
  2. 2 Whether the commissioner of oaths who attested the affidavit was independent and impartial as required by law.
  3. 3 Whether the confiscation of the applicant's goods and monies was lawful.

Ratio Decidendi

The court found that the affidavit supporting the application for the search and seizure warrant was fatally flawed because it was attested by a commissioner of oaths who was directly involved in the search and seizure operation. This contravened Regulation 7, which requires impartiality and independence. The Magistrate failed to observe this defect, rendering the warrant void. As a result, the confiscation of the applicant's goods and monies was unlawful, and the applicant was entitled to their immediate return.

Court Disposition

The application succeeded. The search and seizure warrant was declared invalid, and the respondents were ordered to return the applicant's goods and monies.

Orders

  • The search and seizure warrant issued by the Third Respondent on 8 June 2017 is set aside and declared invalid.
  • The Second Respondent and any other Respondent in possession or control of the applicant's movable goods and monies listed in Annexure A are ordered to forthwith return and restore possession of the movable goods removed from the applicant's business premises.