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

IN

THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION,

MAFIKENG

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates:

NO

CASE NO: M 279/2017

In the matter between:

JASPER

JOHANNES MALAN

Applicant

And

THE

MINISTER OF SAPS N.O.

1st Respondent

LIEUTENANT COLONEL JM MAPANGA N.O. 2nd Respondent

THE MAGISTRATE: RUSTENBURG N.O.

3rd Respondent

THE CHAIRPERSON:

NORTH

WEST GAMBLING BOARD

4th Respondent

DATE

OF HEARING

: 27 JUNE 2017

DATE

OF JUDGMENT : 11 AUGUST 2017

COUNSEL

FOR THE APPLICANT

:

ADV JAGGA

COUNSEL FOR 1st, 2nd, 3rd RESPONDENTS :

ADV BOTMA

COUNSEL FOR 4th

RESPONDENT

:

ADV MAKOTI

REASONS

FOR JUDGMENT

HENDRICKS J

Introduction

[1] The Applicant launched an urgent application praying for the following relief:

“1. Dispensing with the forms and services in terms of Rule 6 (12) of the Rules of the High Court and disposing of the matter as one of urgency in terms of this Rule.

2. Reconsideration in terms of Rule 6 (12)(c) of the Rules of the High Court of the warrant issued by the Third Respondent on 8 June 2017 in respect of the Applicant’s business situated at Shop D, 151a

Kruger Street, Rustenburg and executed on 9 June 2017.

3. Setting aside/declaring as invalid the above stated search warrant issued by the Third Respondent.

4. Directing and ordering the Second Respondent and any other Respondent who is in possession or control of all the Applicant’s movable goods and monies listed in ANNEXURE A hereto, to forthwith return and restore possession of the movable goods that were removed by the SAPS representatives, who were under the control of the Second Respondent from the Applicant’s business premises, which are situated at Shop D, 151a Kruger Street, Rustenburg.

5. Cost of suit (only in the event of opposition) against those Respondent(s) who oppose this application.

6. Further and/or alternative relief.”

[2] The matter was argued on 27th June 2017. After listening to the submission by counsel, I granted an order in the following terms:

4. Directing and ordering the Second Respondent and any other Respondent who is in possession or control of all the Applicant’s movable goods and monies listed in ANNEXURE A hereto, to forthwith return and restore possession of the movable goods that were removed by the SAPS representatives, who were under the control of the Second Respondent from the Applicant’s business premises, which are situated at Shop D, 151a Kruger Street, Rustenburg.”

[3] The Applicant is a businessman conducting business of an internet entertainment café in Rustenburg at a premises which he lease. He has been a tenant since January 2014. On the 09th June 2017 a raid was conducted by members of the South African Police Services (SAPS) at his premises. During the said raid computers, monitors, screens, hubs, routers, a cellphone and cash were confiscated. The SAPS members were in possession of a search and seizure warrant when the raid was conducted. The validity of the said warrant is disputed.

[4] The search and seizure warrant indicate that it is issued to the Second Respondent, LT Colonel J.M Mapanga, as the police official in charge of the search and seizure. On the last paragraph of the warrant it is stated that the police officer in charge of the search and seizure will during the search and seizure be assisted by a list of police officials. (Annexure “G”).

[5] Lieutenant - Colonel Jerry Malesela Mapanga deposed to an affidavit to obtain the search and seizure warrant. He is employed by the South African Police Services and serving in the Commercial Crime Investigating Unit of the Directorate of Priority Crime

Investigations. His office is situated at the West End Building, Klerksdorp. The affidavit was commissioned by Moeng Edwin

Mogorosi, a Warrant Officer, attached to the same unit as LT. Colonel Mapanga. As already mentioned, as annexure “G” to the affidavit of LT. Colonel Mapanga is attached a list of members or officials of SAPS who would partake in the search and seizure. The name of Warrant Officer M.E Mogorosi is included in this list. This means that the same person who attested to the affidavit of his senior, is the same person whose name appears in the list of officials who would conduct the search and seizure. It behoves no argument that Warrant Officer M.E Mogorosi is not an independent and impartial person. This means that Warrant Officer Mogorosi was intrinsically involved in the search and seizure. This is contrary to Regulation 7 of the Regulations governing the administering of oaths and affirmations, (Regulations 1258 of 21 July 1972 as amended), for a commissioner of oaths to attest to an affidavit in respect of a matter he has an interest in.

[6] The affidavit of LT. Colonel Mapanga forms the basis for the application for the warrant which is fatally flawed in that it does not comply with the regulations and is also not attested to by an independent and impartial person. This, the Magistrate who authorised the said warrant, did not observed. A warrant which does not conform with the requirements is void. Had the Magistrate duly considered what was before him, he would have been acutely aware of this and he would have refused the warrant on the basis that LT. Colonel Mapanga’s (the Second Respondent’s) statement was not properly commissioned and therefore could not be regarded as information on oath.

[7] In Dyani v Minister of Safety and Security and Others 2001 (1) SACR 634 (Tk) the following is stated in paragraphs [19] and [20]:

“[19] Mr Lusu objected to the use of such affidavits in these proceedings on the ground that they were not properly attested as the commissioners of oath were all employees of first respondent and could not have been independent and impartial in relation to the subject-matter. Reliance for this submission was based on the cases of R v Brummer 1952 (4) SA 437 (T); Master v Benjamin NO 1955 (4) SA 14 (T) and Radue Weir Holdings v Galleus Investments CC 1998 (3) SA 677 (E).

[20] It is now settled that a commissioner of oaths is required to be independent, impartial and unbiased in relation to the subject-matter of the affidavit brought before him for the purposes of having it attested (Radue Weir Holdings case supra at 680 - 1). In Papenfus v Transvaal Board, Peri-Urban Areas 1969 (2) SA 66 (T), Marais J described the requirement in the following terms at 70B - F:

'[T]he commissioner of oaths should be independent of the office in which the affidavit to be attested by him is drawn. He cannot be

regarded as independent if his partner, employee or employer is the draughtsman or deponent . . . it is clear that both the solemnity of the occasion and the need for complete understanding by the deponent of the import of his act require that an independent party should administer the oath and ensure compliance with the requirements of an oath. . . . So much the more it is necessary, I think, that, where a commissioner of oaths attests an affidavit at what is usually a private and informal occasion, the weightiness of the act should be impressed upon the deponent. This can best be done by a commissioner who regards himself as free to refuse to administer the oath if he feels either that the deponent does not fully appreciate the seriousness of the oath or that he does not unreservedly subscribe to what is contained in the statement he has to swear to.'”

[8] In National Director of Public Prosecutions v Ndolose 2014 (2) SACR 633 (ECM) the following is stated in paragraph 33 (d):

“[33] …

(d) … Item 7 of the regulations made in terms of s 10 of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 (the Oaths Act) states that a commissioner of oaths shall not administer an oath or affirmation relating to a matter in which he has an interest. In this regard it has been held that both precedent and principle point to this regulation as being peremptory and that non-compliance renders the act of attestation void and deprives the document of its validity as an affidavit. The reason for the regulation is that a person attesting to an affidavit is required to be unbiased and impartial in relation to the subject-matter of the affidavit. If that person's position is such that this qualification

is prima facie absent there exists a danger that this person may have influenced the deponent with regard to the subject-matter of the affidavit (see Radue Weir Holdings Ltd t/a Weirs Cash & Carry v Galleus Investments CC t/a Bargain Wholesalers 1998 (3) SA 677 (E) at 679H and 680G).”

It is for the aforementioned reasons, inter alia, that I granted the order as set out in paragraph 1, supra.

____

R

D HENDRICKS

ACTING DEPUTY JUDGE PRESIDENT,

NORTH WEST HIGH COURT, MAHIKENG.