Merensky v Chairperson, North-West Gambling Board and Others (1436/2005) [2006] ZANWHC 37 (30 May 2006)
The court found that the grounds for leave to appeal were previously raised and addressed in the main judgment. The Applicant's argument that section 48 of the Criminal Procedure Act only permits forced entry for arrest and not for inspection or seizure was rejected. The court held that the Respondents acted within...
Source-derived case information.
- Citation
- [2006] ZANWHC 37
- Parties
- Applicant: Duan Merensky; Respondent: Chairperson, North West Gambling Board; Respondent: Mr J.C. Erasmus; Respondent: Mr R. Barnes N.O.; Respondent: Inspector C.H. von Benecke N.O.; Respondent: The Minister of Safety & Liaison; Respondent: The MEC for Economic Development & Tourism
- Court
- North West High Court, Mafikeng
- Jurisdiction
- South Africa
- Case Number
- 1436/2005
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Judgment
- Outcome
- Application for leave to appeal dismissed with costs.
- Judges
- M.T.R. Mogoeng
- Legal Topics
- Forced Entry, Inspection and Seizure, Privacy Rights, North West Gambling Act, Criminal Procedure Act
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Duan Merensky
Applicant
Chairperson, North West Gambling Board
Respondent
Mr J.C. Erasmus
Respondent
Mr R. Barnes N.O.
Respondent
Inspector C.H. von Benecke N.O.
Respondent
The Minister of Safety & Liaison
Respondent
The MEC for Economic Development & Tourism
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment
Legal Issues
- 1 Whether the Respondents were entitled to use force to enter the Applicant's premises under section 48 of the Criminal Procedure Act.
- 2 Whether section 48 of the Criminal Procedure Act permits forced entry for inspection and seizure rather than solely for effecting an arrest.
- 3 Whether the Applicant's constitutional right to privacy was violated by the Respondents' conduct.
Ratio Decidendi
The court found that the grounds for leave to appeal were previously raised and addressed in the main judgment. The Applicant's argument that section 48 of the Criminal Procedure Act only permits forced entry for arrest and not for inspection or seizure was rejected. The court held that the Respondents acted within their statutory powers and did not violate the Applicant's constitutional rights. There was no merit in the Applicant's contentions, and no reasonable prospects of success on appeal were identified.
Court Disposition
Application for leave to appeal dismissed with costs.
Orders
- The application for leave to appeal is dismissed with costs.
Full Case Text
Judgment text and source record
30 paragraphs
CASE NO. 1436/2005
IN THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)
In the matter between:
DUAN MERENSKY APPLICANT
and
CHAIRPERSON, NORTH WEST GAMBLING BOARD 1ST RESPONDENT
MR J.C. ERASMUS 2ND RESPONDENT
MR R. BARNES N.O. 3RD RESPONDENT
INSPECTOR C.H. VON BENECKE N.O. 4TH RESPONDENT
THE MINISTER OF SAFETY & LIAISON 5TH RESPONDENT
THE MEC FOR ECONOMIC DEVELOPMENT & TOURISM 6TH RESPONDENT
_______________________________________________________________________________
JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL
MOGOENG JP.
[1] This is an application for leave to appeal against my Judgment which was handed down on 24 November 2005.
[2] The primary ground relied on is that the second to fourth Respondents used force to enter the Applicantâs premises in circumstances which are not permitted by s 65 of the North West Gambling Act read with s 48 of the Criminal Procedure Act 51 of 1977. Section 48 of the Criminal Procedure Act, according to the Applicant, authorises forced entry into the premises for the exclusive purpose of effecting an arrest after an announcement to the effect that an arrest was intended to be effected, would have been audibly made. This Court therefore erred, so the submission went, by allowing s 48 to be used for the purpose of inspecting and seizing the âamusement machinesâ instead of its sole legitimate and legal purpose, which is to effect an arrest. The Respondents are said to have violated the Applicantâs constitutional rights to privacy, by having gone beyond breaking the gate open and effecting an arrest, by also inspecting and seizing the machines. In other words, having failed to arrest the Applicant in terms of s 48, the Respondents should have simply left and done nothing more.
[3] The other ground relied on was that this Court erred in not finding that, on the facts, the Applicant did not contravene s 82(e) of the North West Gambling Act, and that in order for s 48 of the Criminal Procedure Act to apply, it must first be established that s 82(e) was contravened.
[4] These and other related issues were previously raised in the main application and were dealt with in the Judgment now sought to be appealed against. There is no point in trying to address them again in this Judgment, suffice it to say that there is no merit in them and that there are no reasonable prospects of success on appeal.
[5] Accordingly, the application for leave to appeal is dismissed with costs.
__________________
M.T.R. MOGOENG
JUDGE PRESIDENT OF THE HIGH COURT
APPEARANCES
DATE OF HEARING : 28 APRIL 2006
DATE OF JUDGMENT : 30 MAY 2006
COUNSEL FOR APPLICANT : ADV N. JAGGA
COUNSEL FOR RESPONDENTS : ADV S. SWART
ATTORNEYS FOR APPLICNT : NIENABER & WISSING
ATTORNEYS FOR RESPONDENTS : STATE ATTORNEY