Van den Berg and Another v Page and Others (10636/16) [2016] ZAWCHC 82 (27 June 2016)

Van den Berg and Another v Page and Others (10636/16) [2016] ZAWCHC 82 (27 June 2016)

The court found that the agreement between the State Attorney and the respondents' attorneys, which provides advance notice of a search warrant and an opportunity for the respondents to challenge the warrant before its execution, does not unlawfully amend the prior court order. The order expressly contemplated further access to the hard drive via a fresh search warrant and provided for the respondent to receive a mirror image of the hard drive, enabling precise identification of material to be excluded from the search. The agreement facilitates the efficient advancement of the investigation and the protection of privacy rights, as envisaged by the preservation order and relevant case law....

Citation
[2016] ZAWCHC 82
Parties
Applicant: Johan Frederick Van den Berg; Applicant: Geosystems (Pty) Ltd; Respondent: Derrick Claude Page; Respondent: Leica Geosystems (Pty) Ltd; Respondent: The Minister of Police
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
27 June 2016
Case Number
10636/16
Procedural Posture
Urgent Application / Judgment
Outcome
Application dismissed with costs, including costs of two counsel where engaged.
Judges
Binns-Ward
Legal Topics
Search and Seizure, Preservation Order, Right to Privacy, Criminal Procedure Act, Review of Search Warrant
Civil Procedure Criminal Law Search and Seizure Preservation Order Right to Privacy Criminal Procedure Act Review of Search Warrant

Case Brief

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Parties

Johan Frederick Van den Berg

Applicant

Geosystems (Pty) Ltd

Applicant

Derrick Claude Page

Respondent

Leica Geosystems (Pty) Ltd

Respondent

The Minister of Police

Respondent

Procedural Posture

Urgent Application / Judgment

Legal Issues

  1. 1 Whether the agreement between the State Attorney and the respondents' attorneys regarding advance notice of a search warrant is unlawful.
  2. 2 Whether the agreement impermissibly amends a prior court order without proper procedure.
  3. 3 Whether the agreement amounts to a waiver of statutory protection under section 21(4) of the Criminal Procedure Act.

Ratio Decidendi

The court found that the agreement between the State Attorney and the respondents' attorneys, which provides advance notice of a search warrant and an opportunity for the respondents to challenge the warrant before its execution, does not unlawfully amend the prior court order. The order expressly contemplated further access to the hard drive via a fresh search warrant and provided for the respondent to receive a mirror image of the hard drive, enabling precise identification of material to be excluded from the search. The agreement facilitates the efficient advancement of the investigation and the protection of privacy rights, as envisaged by the preservation order and relevant case law....

Court Disposition

Application dismissed with costs, including costs of two counsel where engaged.

Orders

  • The application is dismissed with costs, including the costs of two counsel where such were engaged.