Van der Merwe and Others v Additional Magistrate, Cape Town and Others (5880/2008 (A)) [2008] ZAWCHC 122; 2010 (1) SACR 470 (C) (24 December 2008)

Van der Merwe and Others v Additional Magistrate, Cape Town and Others (5880/2008 (A)) [2008] ZAWCHC 122; 2010 (1) SACR 470 (C) (24 December 2008)

The court held that the search warrants issued for Zonnekus, Helibase, and Royal Ascot were invalid and set aside because they failed to specify the suspected offences under investigation and did not comply with the principle of intelligibility required by law and the Constitution. The warrants were excessively broad, lacked specificity, and did not provide sufficient information to both the searcher and the searched regarding the ambit of the search. The magistrates failed to apply their minds properly when authorising these warrants, as evidenced by the absence of reasons and the lack of detail in the warrants themselves. In contrast, the Bellville warrant, which included Annexure C...

Citation
[2008] ZAWCHC 122
Parties
Applicant: Gary Walter van der Merwe; Applicant: Monique van der Merwe; Applicant: Fern Cameron (formerly van der Merwe); Applicant: Alan Raymond Fanaroff; Applicant: Tantco Global (Pty) Ltd; Applicant: Executive Helicopters (Pty) Ltd; Applicant: Exel Aviation (Pty) Ltd; Applicant: Aircraft Support (Pty) Ltd; Applicant: Madiba Air and Sea (Pty) Ltd; Applicant: Zonnekus Mansion (Pty) Ltd; Applicant: Summer Daze Trading 712 (Pty) Ltd; Applicant: Westside Trading (Pty) Ltd; Applicant: SA Barter (Pty) Ltd; Applicant: Two Oceans Aviation (Pty) Ltd; Applicant: Helibase (Pty) Ltd; Respondent: The Additional Magistrate, Cape Town; Respondent: Wilhelmina Anna Kotze; Respondent: Colin Anderson Gillespie; Respondent: The Minister of Safety and Security; Respondent: The Commissioner: South African Revenue Service; Respondent: The Additional Magistrate, Bellville; Respondent: The Additional Magistrate, Randburg
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
24 December 2008
Case Number
5880/2008 (A)
Procedural Posture
Review Application / Judgment
Outcome
Three of the five search warrants challenged by the applicants are declared invalid and set aside. The applications regarding the Randburg and Bellville warrants are dismissed. The counter application for a preservation order is postponed. Fourth and fifth respondents are ordered to pay the applicants' costs,...
Judges
D M Davis, V Saldanha
Legal Topics
Search and Seizure, Criminal Procedure Act, Intelligibility of Warrants, Income Tax Fraud, Vat Fraud
Criminal Law Civil Procedure Tax Law Search and Seizure Criminal Procedure Act Intelligibility of Warrants Income Tax Fraud Vat Fraud

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Parties

Gary Walter van der Merwe

Applicant

Monique van der Merwe

Applicant

Fern Cameron (formerly van der Merwe)

Applicant

Alan Raymond Fanaroff

Applicant

Tantco Global (Pty) Ltd

Applicant

Executive Helicopters (Pty) Ltd

Applicant

Exel Aviation (Pty) Ltd

Applicant

Aircraft Support (Pty) Ltd

Applicant

Madiba Air and Sea (Pty) Ltd

Applicant

Zonnekus Mansion (Pty) Ltd

Applicant

Summer Daze Trading 712 (Pty) Ltd

Applicant

Westside Trading (Pty) Ltd

Applicant

SA Barter (Pty) Ltd

Applicant

Two Oceans Aviation (Pty) Ltd

Applicant

Helibase (Pty) Ltd

Applicant

The Additional Magistrate, Cape Town

Respondent

Wilhelmina Anna Kotze

Respondent

Colin Anderson Gillespie

Respondent

The Minister of Safety and Security

Respondent

The Commissioner: South African Revenue Service

Respondent

The Additional Magistrate, Bellville

Respondent

The Additional Magistrate, Randburg

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the search warrants issued in respect of the applicants' premises were valid in law.
  2. 2 Whether the warrants failed to specify the suspected offences under investigation, rendering them fatally defective.
  3. 3 Whether the magistrates applied their minds properly when authorising the warrants.

Ratio Decidendi

The court held that the search warrants issued for Zonnekus, Helibase, and Royal Ascot were invalid and set aside because they failed to specify the suspected offences under investigation and did not comply with the principle of intelligibility required by law and the Constitution. The warrants were excessively broad, lacked specificity, and did not provide sufficient information to both the searcher and the searched regarding the ambit of the search. The magistrates failed to apply their minds properly when authorising these warrants, as evidenced by the absence of reasons and the lack of detail in the warrants themselves. In contrast, the Bellville warrant, which included Annexure C...

Court Disposition

Three of the five search warrants challenged by the applicants are declared invalid and set aside. The applications regarding the Randburg and Bellville warrants are dismissed. The counter application for a preservation order is postponed. Fourth and fifth respondents are ordered to pay the applicants' costs,...

Orders

  • The search warrants issued by the Additional Magistrate, Cape Town, for Zonnekus, Helibase, and Royal Ascot are declared invalid and set aside.
  • The applications in respect of the Randburg and Bellville warrants are dismissed.