Ruskopoint (Pty) Ltd t/a Old Mill Gaming Centre v Minister od SAPS N.O and Others (1427/2016) [2016] ZAECGHC 74 (8 September 2016)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: 1427/2016

DATE: 8 SEPTEMBER 2016

In the matter between:

RUSKOPOINT (PTY) LTD

t/a THE OLD MILL GAMING CENTRE.......................................................................Applicant

And

THE MINISTER OF SAPS N.O......................................................................First Respondent

THE PROVINCIAL COMMISSIONER

SAPS, EASTERN CAPE PROVINCE N.O...............................................Second Respondent

CAPTAIN JURGENS GOUWS N.O..............................................................Third Respondent

THE MAGISTRATE: GRAHAMSTOWN N.O............................................Fourth Respondent

THE CHAIRPERSON:

EASTERN CAPE GAMBLING AND BETTING

BOARD N.O...................................................................................................Fifth Respondent

JUDGMENT

LOWE, J

Date heard: 28 April 2016

Date delivered: 08 September 2016

Introduction:

[1] In this matter Applicant seeks an order setting aside the search and seizure warrant (“the warrant”) issued by Fourth Respondent on 23 February 2016 in respect of the Applicant’s business in Grahamstown. Applicant also seeks consequential thereon an order returning items seized by members of the SAPS during the execution of the warrant on 23 February 2016 at the business together with costs against those Respondents who oppose the application.

[2] All Respondents oppose the application, the main answering affidavit being deposed to by Third Respondent with two supporting affidavits.

[3] In point of fact, Fourth Respondent also deposes to an answering affidavit, which clearly is filed in opposition to the relief sought.

The Facts:

[4] The relevant facts in this matter can be concisely set out.

[5] The Applicant states that it conducts the business of an Internet café at its business premises in Grahamstown, and that it was prior to the execution of the warrant in peaceful and undisturbed possession of the items described in paragraph 33 of the founding affidavit.

[6] Applicant’s premises (“the premises”) are situated at Phoenix Roller Mills, 4-6 Dundas Street, Grahamstown.

[7] Third Respondent is the member of the SAPS who applied for the warrant that was executed at the premises, it being issued by Fourth Respondent on 23 February 2016.

[8] It appears from Fourth Respondent’s affidavit that a warrant was initially sought and granted by a different Magistrate on 3 February 2016, this not being directed at a specific person, being subsequently recalled, and was re-issued on 10 February 2016 by the same Magistrate. On 23 February 2016 Third Respondent again approached Fourth Respondent’s offices together with the warrant of 10 February 2016 in a new application containing the same search warrant, the same affidavit, and an additional affidavit deposed to by Third Respondent. Fourth Respondent considered the application applying his mind, he says, to the affidavit of Third Respondent and an Inspector D’Alton, and issued the search warrant which was executed in this matter.

[9] In reply Applicant observes that Fourth Respondent did not disclose why the name of Mevelyn Williams appears on the warrant and points out that there is an attempt to justify the presence of non-police officials on the basis that their assistance was required but was not tantamount to participation in the search for the items described in the warrant.

[10] It should be noted that the main affidavit filed with Fourth Respondent seeking the warrant is deposed to by Third Respondent, whilst a further affidavit was filed purportedly on the same date as the first affidavit and at the same time, this also by Fourth Respondent. The second affidavit is effectively supported by a further affidavit of Inspector D’Alton who is not a member of the SAPS but is an Inspector at the Eastern Cape Gambling and Betting Board.

[11] It is apparent from Fourth Respondent’s affidavit that on all the occasions Fourth Respondent’s office was approached in respect of this warrant; the approach was by Third Respondent.

[12] In summary the warrant issued on 3 February 2016 was recalled, and a new warrant issued on 10 February 2016 in order that the warrant be directed against a specific person, and that warrant was in due course replaced by a further warrant issued on 23 February 2016 which included an additional premises to be searched.

[13] In order not to burden this judgment, the full contents of the final search warrant is annexed hereto marked “A”.

[14] It will be noted that the warrant itself states “...that there are reasonable grounds to believe that... there is an article to wit see Annexure B...” - in contravention of certain Sections of the Gambling and Betting Act 5 of 1997 (Eastern Cape)”. It is not stated whether these were to be concerned in the commission of an offence or in the suspected commission of an offence, the warrant being such as to state that the items were in the possession of Mevelyn Williams or at the premises which were identified as those of the “..Phoenix Sports Baron on the ground-floor, computer operation on first floor of the Old Mill Building, Dundas Road...” authorizing the seizure of the items “...as per Annexure “B” to deal with same according to law, bring same before me [the issuing magistrate] to be dealt with according to law”. The warrant does not stipulate which was applicable. The warrant authorized the search of the identified person and premises and any person found on such premises and to seize the said items.

[15] Annexure “A”, to the warrant, authorized a number of persons allowed to be “on site” some of which were policeman and others not, including Inspectors appointed by the Gambling Board, one to assist “...on collecting IT related evidence” being an “IT Manager” as well as a certain “Independent Consultant”.

[16] The first affidavit by the Third Respondent is annexed hereto marked “B”. This refers particularly to the second floor premises above the Phoenix Sports Bar in which it is alleged that the suspects were operating an illegal computer casino. This came subsequent to a trap conducted by the SAPS in respect of the premises. The affidavit continues to apply for a warrant alleging that suspects were contravening Section 60 of The Gambling and Betting Act 5 of 1997 which then referred extensively to Section 60 and the lengthy Section 88, which contain numerous offences. The warrant gives no further specifics as to the offence relied upon referring simply to Sections 60 and 88 other than to state as follows: “Possession of illegal gambling computers, devices, equipment, documentation, money and any others devices, equipment utilized to be used all used to operate an illegal computer casino operations”

[17] The second affidavit sought the addition of the Phoenix Sports Bar premises (on the ground-floor) as it was alleged that the original premises referred to was fitted with devices that could influence the prosecution of the search and seizure warrant. The supporting affidavit, referred inter alia to the illegal computer operation belonging to one Christopher, in partnership with a certain Donovan.

[18] Upon execution of the warrant by way of a raid on the morning of 23 February 2016 the items referred to in Sections A1-A3 of the warrant were seized and an employee arrested.

Applicant’s Contentions:

[19] Applicant contends that it was on the basis of the three affidavits referred to above, that Fourth Respondent issued the warrant authorizing the search of Ms Williams and the premises on the ground floor and first floor of the Old Mill Building. That this is correct is apparent from Fourth Respondent’s affidavit.

[20] It is not apparent how the name of Ms Williams was inserted into the warrant, this not being before the Magistrate on the affidavits.

[21] It was submitted that:

21.1 Respondent failed to apply his mind to the application for the warrant;

21.2 Had he done so he would have realized that none of the affidavits referred to Ms Williams, her involvement in the matter or that it was believed that she was in possession of the articles suspected to be linked with the suspected offences;

21.3 There were no objective jurisdictional facts placed before Fourth Respondent as to why it was suspected that the ground-floor was involved in the suspected crimes and may harbour the articles searched for;

21.4 There is no allegation that Fourth Respondent knew of the said Williams’ involvement or that she had been arrested prior to issuing the warrant;

21.5 The warrant refers to different offences thereby being unintelligible , and as the subject of the search was not informed as to which specific statutory offence the search and seizure was linked to, there being in addition nothing before Fourth Respondent as to why both Sections 60 (a) and (b) of the Gambling Act where applicable;

21.6 The provisions of Section 88 do not refer to “illegal gambling computers”, and that all the above make the warrant unintelligible;

21.7 Fourth Respondent failed to indicate on the warrant whether the police must deal with the items according to law or bring it before him, both these options being left open, and therefore vague;

21.8 The warrant authorized non-police members to assist at the execution of the warrant and to advise as to what items should be seized and to act as experts during the search and seizure, this being tantamount to the execution of the warrant by those individuals, this being impermissible in terms of the Criminal Procedure Act;

21.9 There is no basis on the documentation or warrant as to why the documentation referred to in Part A1-2 thereof were suspected of being involved in the offences let alone cash;

21.10 The warrant is in overbroad terms, put generally, that the authorizations being overbroad and unintelligible far exceeded what is permitted in terms of the empowering legislation.

[22] Respondents in turn contend that the above submissions have no merit, although the general principles relevant to the validity of warrants are not disputed. Respondents argue that on the proper approach to a matter such as this it is clear that the non-SAPS members did not play a role in the execution of the warrant; that the warrant refers to both Section 88 and Section 60 of the Act and clearly indicates that the suspected offence is “illegal gambling on computers”; that the warrant cannot be expected to be as detailed as a charge sheet; that the warrant is clearly and absolutely sensible and intelligible; that the three affidavits read together clearly highlight the nature of the suspected offences; that there are no absurdities; that it was unrealistic to expect the terms of a warrant to place a person in a position to determine exactly which items should be seized and which should not; and finally that the application should accordingly be dismissed with costs.

The Law:

[23] Perhaps most importantly a warrant to search must name a time, place and scope of the search limiting the intrusion and guiding the State in the conduct of the inspection and informing the subject of the legality and limits of the search. Magajane v Chairperson, North West Gambling Board 2006(2) SACR 47 (CC) at [74]. It is further clear that the validity of the search warrant must be examined with what has been described as jealous regard to the subject’s right to privacy and property. Toich v The Magistrate, Rivers Stale and Others 2007 (2) SACR 235 [C] a 242 d-e.

[24] In Minister of Police and Another v Auction Alliance Pty Limited and Others [2014] 2 All SA 432 (WCC) Rogers J at [27] held as follows:

“The true position, I conceive, is that a magistrate dealing with a Section 21(1) (a) request does not sit as a court in civil proceedings. The magistrate is entitled to receive or call for additional information and to make modifications to the proposed warrant in order appropriately to balance the public interest in criminal investigations on the one hand and the privacy of the person to be searched on the other hand and to ensure that the warrant complies with the requirements laid down in leading cases (cf Van der Merwe and others v Additional Magistrate, Cape Town and others 2010 (1) SACR 470 (C) at paragraphs 45 and 48). The rules governing civil applications heard by a magistrate sitting as a court do not apply. The magistrate in Section 21 (1)(a) proceedings must follow whatever procedure he thinks appropriate to determine whether a search warrant should be issued. If the party to be searched has notice of the application (this will not be the norm) and if such party places evidence and submissions before the magistrate, the magistrate must no doubt in fairness take them into account. However, he is not required to give decisions on objections made in interlocutory form (such as a striking-out application). He must simply follow a fair procedure and, when he concludes that he has heard enough, decide either to issue the warrant or not… Like a justice to whom a Section 21 (1) (a) request has been made, he is not required to deliver a judgment with reasons nor does he have the power to make a costs order.

Submissions regarding the cogency and admissibility of evidence and the like will simply be taken into account in his final decision.”

[25] In Minister of Safety and Security v Van der Merwe 2011 (1) SACR 211 (SCA) at 216g-217a [13] - [14] it was held that in a challenge to the validity of a warrant the court should scrutinize the information that was before the official who had issued it in order to determine whether such information sufficiently disclosed a reasonable suspicion that an offence had been committed and whether it authorized no more than that strictly permitted by the statute in terms of which it was issued. The court stated that:

“Firstly, whether the warrant was sufficiently clear as to the acts it permitted, for if it were vague, it would not be possible to demonstrate that it went no further than what the Statute permitted and secondly, even if the warrant were clear in its terms, whether the acts it permitted went beyond what the Statute authorised, in which case the warrant could be said to be overbroad and thus invalid.”

[26] In Thint (Pty) Ltd v National Director of Public Prosecutions and Others 2009 (1) 1 (CC), Constitutional Court stated: “That intelligibility required that the alleged offences had to be specified in the warrant”.

[27] It is clear on a reading of the authorities that whilst the warrant must be tested against the particular statute under which it was issued, there were nonetheless other universal criteria to take into account such as the intelligibility of the warrant in that it must not be vague nor overbroad. See: Van der Merwe (supra 2-21 - 2-23).

[28] Such warrants make inroads upon protected rights and the Statutes that authorize the issue of such warrants are construed strictly in favour of the minimum invasion of such rights.

[29] In Van der Merwe (supra) the court confirmed the communal principle of intelligibility setting out that :

“A valid warrant is one that, in a reasonably intelligible manner:

(a) states the statutory provision in terms of which it is issued;

(b) identifies the searcher;

(c) clearly mentions the authority it confers upon the searcher;

(d) describes the person, container or premises to be searched;

(e) describes the article to be searched for and seized, with sufficient particularity; and

(f) Specifies the offence which triggered the criminal investigation and names the suspected offender.

In addition, the guidelines to be observed by a court considering the validity of the warrants include the following:

(a) the person issuing the warrant must have authority and jurisdiction;

(b) the person authorising the warrant must satisfy herself that the affidavit contains sufficient information on the existence of the jurisdictional facts;

(c) the terms of the warrant must be neither vague nor overbroad;

(d) a warrant must be reasonably intelligible to both the searcher and the searched person;

(e) the court must always consider the validity of the warrants with a jealous regard for the searched person’s constitutional rights; and

(f) The terms of the warrant must be construed with reasonable strictness.”

[30] In Commentary on the Criminal Procedure Act: Du Toit: Juta 2-30E the following appears:

“In the warrant an identified police official should be authorised to execute the warrant. A warrant addressed to ‘all police officers’ is formulated unnecessarily widely and should be set aside. Warrants authorising private individuals to search and seize are ultra vires the Criminal Procedure Act (Extra Dimensions & others v Kruger NO & others 2004 (2) SACR 493 (T) 396j-497h). The warrant should authorise a police official to seize the article in question, identify a person identified in the warrant, or to enter and search premises identified in the warrant, or to search any person found on or at such premises

with a view to seize the article in question (s21(2)). It is not necessary to describe each and every article in detail, and types or classes of articles can also be identified, as long as reasonably clear descriptions are given (Cine Films (Pty) Ltd v Commissioner of Police 1972 (2) SA 254 (A)). See also generally Powell NO & others v Van der Merwe NO & others 2005 (1) SACR 317 (SCA) 340b-c. Whilst the person subjected to the search and seizure is to be informed as clearly as is reasonably possible of what he must allow and/or surrender, the investigations of the police are not to be hampered by a duty to provide technical detail in respect of the articles they are seeking to find and seize. The type of article subject to seizure is described in s 20 (see above), and a warrant which purports to authorise the seizure of anything which does not fall within that description is invalid.

There is no need for the magistrate issuing a warrant to indicate on the warrant which of the three subSections of s 20 he or she deems applicable. Where it appears to the magistrate that all three subSection are applicable he or she may issue the warrant on the strength of all three subSections (Polonyfis v Provincial Commissioner, South African Police Service, Northern Cape NO & others 2010 (1) SACR 586 (NCK) at [16]; Polonyfis v Minister of Police & others NNO 2012 (1) SACR 57 (SCA) AT [13]). The warrant must fall squarely within the boundaries of s 20 and also s 21, and those executing it are only allowed to act as authorised (De Wet v Willers NO 1953 (4) SA 124 (T); S v Potgieter 1974 (1) SA 244 (T)), and where the warrant is too wide or unclear it can be set aside.”

[31] Warrants authorizing private individuals to search and seize are ultra vires the Act. Extra Dimension & Others v Kruger NO & Others 2004 (2) SACR 493 (T) 496-497. The court held that read with Section 21 (2) of the Criminal Procedure Act (“the CPA”) is clear that

the Magistrate can only authorize a police official to search. It was pointed out that the Section vests the police official authorized

with important discretionary powers which indicates that the legislature intended that an identified peace officer should be named

and act throughout.

[32] Thint (supra), involved the search and seizure warrants referred to in Section 29 of the National Prosecuting Authority Act 32 of 1998. This notwithstanding, it seems to me that the general principles discussed and made of application are similarly relevant to this matter and to warrants in terms of the CPA. Perhaps most importantly the court held that the validity of the warrants, and specifically the question whether they were unduly vague and overbroad, must be assessed in the light of the common-law principle that a warrant must convey intelligibly to both searcher and searched the ambit of the search it authorizes and in the light of the requirements of Section 29 interpreted so as to promote the purpose and objects of the Bill of Rights, and take into account relevant constitutional principles. The common law principle of intelligibility lacks precision. The court held that the correct test for intelligibility was not a subjective one, which would require that the warrants lawfulness would depend on the understanding of the person present at the premises when it was executed. Such would require every warrant to be perfectly tailored which would be practically unworkable and would scupper the fight against crime. The test for intelligibility must be an objective one: warrants must be reasonably intelligible in the sense that they were reasonably capable of being understood by reasonably well-informed person with a grasp of the relevant empowering legislation and the nature of the offences under investigation. This required that it should state amongst other things the suspected offences that were under investigation.

The Analysis:

[33] Having regard to the facts set out above seen against the legal position which I have summarized as it is relevant to this matter there seems to me to be the following questions:

33.1 Did the warrant sufficiently specify the offence which triggered the criminal investigation;

33.2 In identifying the searchers as including individuals other than police officials was the warrant itself ultra vires the Act;

33.3 If not, was the involvement of private individuals to the extent established on the papers such as to offend against the CPA strictly construed as it must be; and were the articles to be searched for and seized described with sufficient particularity;

33.4 Was the inclusion and naming of Ms Williams such as to indicate that the Fourth Respondent failed to apply his mind sufficiently to the application for the warrant?

33.5Was the warrant itself intelligible or was it vague and overbroad?

[34] I will deal with these each in an appropriate order only insofar as is necessary.

[35] In considering whether the warrant sufficiently specifies the offence/s, it would seem to me, that although there was extensive reference to the full contents of Sections 60 and 88 of The Gambling and Betting Act, this was substantially curtailed by adding thereafter the words: “possession of illegal gambling computers, devices, equipment, documentation, money and other devices, equipment utilized to be used or used to operate an illegal computer casino operation.” This seems to me to more than adequately, against the Sections referred to, to specify the offence which triggered the investigation.

[36] In reading the opening paragraph of the warrant neither the official to whom it was directed nor the persons upon whom it was served would be in any doubt as to the crux of the charge/s contemplated.

[37] As to whether the warrant directed to Third Respondent but incorporating, apparently, the document annexed marked “A”, which named several police officers, at least two non-police officers being inspectors in terms of The Gambling and Betting Act, and at least two private individuals, was ultra vires the Act I conclude as follows. The warrant more than adequately identifies the searcher as Third Respondent, and clearly contemplated that he was authorized to search the premises in terms of the warrant. In a so-called attachment to the warrant, there appears to be an attempt to expand the search team to include those 10 people listed in addition to Third Respondent. It is clear to me from the Section 21(2) of the CPA that it refers specifically and for good reason to “a police official”. That police official, the searcher, must be clearly identified. I have already set out above that the warrant should authorize a police official to seize the article in question, and to enter and search the premises, and that that person is vested with a discretion that he must exercise. In this matter, the search warrant itself on the front page identified only Third Respondent. Third Respondent is also the first person referred to in the attachment to the warrant. Whilst it may be that to identify by name several police offices in this regard is not objectionable, although complicated having regard to the discretion concerned, it is not necessary for me to decide this on the facts of this matter. The question is simply whether the non-police officials referred to, four in number, was of itself, whatever they may have done or not done, at the search itself, such as to render the warrant ultra vires the CPA.

[38] In my view, the mere inclusion of such persons as being authorized in the warrant itself is clearly outside the provisions of the CPA, and of itself regardless of what happened relevant to the search itself such as to render the warrant itself ultra vires.

[39] I wish to be clear that this overtakes the facts concerning the extent to which such persons were or were not actually involved in the search it being the warrant itself which must be analyzed against the CPA and not what actually happened at the search and by whom. The fact that the warrant referred to non-police officials and private individuals, was, of itself, out of order rendering the warrant void.

[40] As to the inclusion of Ms Williams as being the person under whose possession and control the items to be searched for fell, it is clear on a proper construction of the papers, that Ms Williams (although perhaps identified in an arrest warrant which was effected earlier in the day), was not mentiond in the affidavits underlying the warrant. It would in my view have been perfectly in order for the identity of that person to have been established before the Magistrate by his questioning, which would not have been objectionable, but on the application affidavits, it does not appear that this was in fact established, on the affidavits, or orally on the questioning of the search applicant official. All in all, one is left unclear as to why Ms Williams’ name was included in the warrant. The question which arises is whether this is fatal to the warrant. The difficulty which arises is that in terms of Section 21 (1)(a) of the CPA, it must appear to the Magistrate from information under oath that there are reasonable grounds for believing that any article named is in the possession or under the control of or are upon any person or upon or at any premises. It seems to me, that it follows clearly, that in this matter there being no suggestion on the statements under oath that Ms Williams was in the possession of or had the items referred to under her control, constitutes a fatal bar to the issue of the warrant in the form in which it was in fact issued. Put otherwise, this indicates (at least on the facts disclosed in the application affidavits which is all I can have regard to) that in this regard Fourth Respondent failed to apply his mind sufficiently to the granting of the warrant on the second occasion such as to it being set aside. I should stress, that had the magistrate or applying officer have deposed that this was established between them upon the magistrate questioning that officer, this would have in all probability been sufficient of itself, but this is not so stated in the application affidavits.

[41] As to whether the warrant itself was intelligible otherwise than is referred to above is the final issue, although not determinative of the matter unless I am incorrect in all the above. The contents of the attachment to the warrant marked “B” must be read in the context of the introduction to the warrant that what was being sought were - gambling computers, devices, equipment,

documentation, money and the other devices, equipment utilized or to be used, all used to operate an illegal computer casino operation.

In my view, against the background, the identification of the articles referred to was set out with sufficient particularity in respect of a search and seizure warrant.

Conclusion:

[42] In the result, and on either or both of the two specific failures referred to above, it is clear, in my view, that the warrant in this matter was ultra vires the provisions of Section 21 of the Act. The warrant falls, thus, to be set aside.

[43] It follows, that there must be in order returning the goods seized to Applicant, on the basis advanced in argument, which was not contested by Respondents (correctly) in the event of the warrant being set aside.

[44] Applicant having been substantially successful must have its costs.

[45] In the result the following order issues:

1. The search warrant issued on 23 February 2016 by the Fourth Respondent in respect of Applicant’s business is set aside as invalid;

2. The Respondents are ordered to forthwith return and restore possession of the movable goods and monies that were removed in terms of the warrant listed in Annexure A to the Notice of Motion, from its premises referred to, situate at the Old Mill Gaming Centre, Phoenix Roller Mills, 6-4 Dundas Street, Grahamstown, subject however to any preservation or forfeiture order which may have been issued by the above Honourable Court in respect thereof, while such order remains in operation;

3. First to Fifth Respondents jointly and severally, the one paying the other to be absolved, shall pay Applicant’s costs.

M.J LOWE

JUDGE OF THE HIGH COURT

Obo the Applicant: Adv. Jagga

Instructed by: Borman & Botha

22 Hill Street

Grahamstown

(Ref: J Jagga)

Obo the First to Fifth Respondents: Adv. Cole

Instructed by: N N Dullabh & Co

5 Bertram Street

(Ref: Mr Wolmarans/fm)