IN THE HIGH COURT OF SOUTH AFRICA 
		(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

In the matter between:

GARY WALTER VAN DER MERWE				First Applicant 
MONIQUE VAN DER MERWE					Second Applicant 
FERN CAMERON (formerly VAN DER MERWE		Third Applicant 
ALAN RAYMOND FANAROFF					Fourth Applicant 
TANTCO GLOBAL (PTY) LTD					Fifth Applicant 
EXECUTIVE HELICOPTERS (PTY) LTD			Sixth Applicant 
EXEL AVIATION (PTY) LTD					Seventh Applicant 
AIRCRAFT SUPPORT (PTY) LTD				Eight Applicant 
MADIBA AIR AND SEA (PTY) LTD				Ninth Applicant 
ZONNEKUS MANSION (PTY) LTD				Tenth Applicant 
SUMMER DAZE TRADING 712 (PTY) LTD			Eleventh Applicant
WESTSIDE TRADING (PTY) LTD				Twelfth Applicant
SA BARTER (PTY) LTD					Thirteen Applicant
TWO OCEANS AVIATION (PTY) LTD				 Fourteenth Applicant
HELIBASE (PTY) LTD						 Fifteenth Applicant								
and
THE ADDITIONAL MAGISTRATE, CAPE TOWN		First Respondent
WILHELMINA ANNA KOTZE					 Second Respondent
COLIN ANDERSON GILLESPIE				 Third Respondent 
THE MINISTER OF SAFETY AND SECURITY			Fourth Respondent
THE COMMISSIONER: SOUTH AFRICAN
REVENUE SERVICE						Fifth Respondent
THE ADDITIONAL MAGISTRATE, BELLVILLE			Sixth Respondent
THE ADDITIONAL MAGISTRATE, RANDBURG		Seventh Respondent						

JUDGMENT:  24 December 2008
Davis J and Saldanha J Introduction
[1] This application concerns the validity of certain search warrants and search and seizure operations which were conducted pursuant to search warrants during 2008.

[3] During the course of her investigations she obtained a comprehensive affidavit from the third respondent, Mr Colin Gillespie, criminal investigator in the employ of SARS. She also prepared her own affidavit with a view of obtaining search warrants for various premises connected to applicants.

[4] Three separate sets of search warrants were generated in respect of premises in the Western Cape; one for Zonnekus, being the home of first applicant, secondly one at Helibase, being business premises of various of the applicants, and thirdly, one for Royal Ascot, the premises of fourth applicant. In addition, as Ms Kotze states in her affidavit, it was decided to apply for a search warrant for the premises of applicants' accountants / auditors, Messrs Carrim, Maritz & Associates, situated in Midrand and therefore located within the jurisdiction of Randburg Magistrates Court. All four applications for warrants were prepared on essentially the same grounds.

[5] Superintendent Kotze states in her affidavit that she traveled to Randburg and met with seventh respondent, Magistrate Mkhari on 25 February 2008. She handed Mr Mkhari the application and explained the reasons for bringing the application in his jurisdiction. On 27 February 2008 Mr Mkhari indicated that he required more time to come to a final decision. On the 28 February 2008 he signed and authorised the Randburg search warrant.

[6] On the 6 March 2008 the Chief Magistrate Cape Town, Mr Maku informed Superintendent Kotze that Mr Lekuleni, an additional magistrate on his staff, had been appointed to deal with the matter.
[7] According to Superintendent Kotze, she met with Magistrate Lekuleni on 6 March 2008 and explained the nature and extent of the investigation. He indicated that he would like to take his time to study the application and that they should return the following day, 7 March 2008. Mr Lekuleni raised certain procedural difficulties and asked questions with the draft warrants but on the 7 March 2008 he finally issued them.

[8] On the 10 June 2008 a further search warrant was issued regarding the Bellville premises of Carrim & Maritz and Associates. In this case, the warrant was considered by the senior Magistrate, Bellville, being sixth respondent. According to Superintendent Kotze, she explained the nature of the warrants and the complicated matter upon which the need for warrants had been based. The magistrate, Mrs Du Toit, carefully went through the documentation and spent some time considering the application, prior to authorising the warrant.

Applicants Case
[9]     In assailing the validity of these warrants, applicants base their challenge on two central arguments:
1.	in the case of four of the five impugned search warrants there was no 	mention of the suspected offences that were under investigation;
2.	the various magistrates failed to apply their mind to the application for such 	warrants and accordingly the warrants were fatally defective in law.
In addition, applicants contend that other than reasons provided for by Magistrate Lekuleni, there were no reasons provided by any of the magistrates for their decision. None of these magistrates filed affidavits in this application. Thus, applicants contend that the court had not been informed by these magistrates what they had read in preparation for their various decisions nor what they considered prior to issuing the relevant warrants. Any evidence provided by Superintendent Kotze concerning the decision making process of the various magistrates stood to be rejected as hearsay evidence.

A description of the warrants

[11]   Each warrant consists of one page and then refers to three Annexures A, B, C. The heading of the one page search warrant states: 
"SEARCH WARRANT
[Section 20, 21, and/or 25 Criminal Procedure Act, (Act 51 of 1977)]
To persons as listed in "Annexure A" hereto"
Below the heading is a box in which a preamble to the operative part of the search warrant is contained and it refers to articles, 'to wit, as per annexure "B" hereto. Below that are 7 boxes marked (a) - (h), which each have and "X" marked next to the box. Immediately below those is the continuation of the preamble which states:
"and which is in the possession of/under the control of/upon or at a premises at/upon the person of Gary Van der Merwe, Monique Van der Merwe, Fern Van der Merwe at Zonnekus Mansions, Chandlers Close, Woodbridge Island, Milnerton, Cape Town"
The operative part of the search warrant then states:
"THESE ARE THEREFORE to authorise you to search during the day time * the identified person/to enter and search the identified premises and to search any person found on or at such premises and to direct you to seize the said articles as described in "Annexure B" hereto if found (including inspecting, searching and seizing computer-related objects in the manner authorised in "Annexure C" hereto), and to * deal with it according to law/bring it before me to be dealt with according to law".

[12] The three Annexures A, B, and C were attached to the printed warrant. Annexure "A" consists of a list of named individuals who are authorised by the search warrant to conduct the search. Annexure "B" lists the articles which may be seized during the search. There are 18 separate items so set out.

As stated above, the suspected offences that were under investigation are not mentioned at all in the 18 items. Similarly, the nature of the investigation is not described at all.

"Enige stawing van betalings gemaak tussen die volgende
individue
Gary van der Merwe
Monique van der Merwe Robert A van der Merwe Karin G van der Merwe Fern van der Merwe Alan Fanaroff Sean Pautz Gary Fox
William Olmstead".

Item 17, like item 15, is extremely wide. It permits seizure of any information relating to the lifestyles of the named individuals insofar as it is relevant to the indeterminate, and indeed open-ended, investigation
('ondersoek').

Annexure C authorises the manner of inspecting, searching and seizing computer-related objects. Annexure "C" sets out 4 methods of searching and seizing. Item 4 of Annexure "C" also has references to:

"...all information which has a bearing, or might have a

bearing, on the investigation in question".

[13] The Randburg warrant, which was issued in 28 February 2008, als consists of one page and makes reference to Annexure A and E Annexure A refers to the three police officers who are authorised 1 conduct the search. Annexure B consists of thirteen items which set oi 'dokumente en bewysse relevant tot die ondersoek'. Applicants point oi there is no identification of the suspected offences under the investigatior

[14] The final search warrant, being the search warrant authorising the searc of the Bellville premises of Carrim & Maritz Associates, again takes th form of a printed page. Annexure A specifies the officers from Soul African Police Services and the official from SARS who are authorised t attend to the search. Annexure B consists of 6 items which detail th articles which may be seized. Applicants contend, in particular, that itei 5 of Annexure B is excessively wide in scope:
Enige stawing van betalings gemaak tussen die volgend individue
Gary van der Merwe
Monique van der Merwe
Robert A van der Merwe
Karin G van der Merwe
Fern van der Merwe
Alan Fanaroff
Sean Pautz
Gary Fox William Olmstead

[15] The major difference, however, between this warrant and the other warrants is the inclusion of Annexure C. In this Annexure a detailed description is provided of the reasonable grounds which the investigating authorities consider exist to sustain charges of income tax and VAT fraud against various of the applicants. Not only are particular sections of both the VAT Act and the Income Tax Act specified in Annexure C, but the manner in which it is alleged the fraud was conducted is also described in some detail.

Jurisdiction of this court in respect of the Randburg warrant
[17] The Randburg search warrant was executed on 10 March 2008 at Carrim & Maritz in Midrand, Gauteng.

[18] The challenge to the validity of the Ranburg Carrim & Maritz search warrant is contained in an application by the applicants, which included challenges - on similar grounds - to three search warrants issued in Cape Town and one in Bellville, all four of which were executed within the jurisdiction of this Court.

[19] The investigation and investigating officer are based in the Western Cape. The criminal investigation underlying the Randburg and other search warrants was registered under a Cape Town Commercial Branch case number CAS 3/12/2007.

[20] The investigating officer traveled from Cape Town to Gauteng to meet the magistrate of Randburg so that she could hand him the application for the search warrant and explain the reasons for applying in that jurisdiction.

[21] It is accepted that the basis of the challenge to the Randburg search warrant is almost in identical terms to that of the challenge to the three Cape Town search warrants.

[22] It must also be accepted that at the hearing none of the respondents took issue with this Court deciding on the validity of the Randburg search warrant. In addition, the Randburg Magistrate, the seventh respondent did not object to this Court's jurisdiction. Mr Hodes, who appeared with Mr Katz on behalf of applicant, submitted that the inescapable inference is that the Randburg Magistrate has, at the very least by implication, consented to the jurisdiction of this Court.

The omission of the suspected offences that are under investigation

[26] In dealing with the validity of these warrants, Langa CJ noted that the NPA provided considerable safeguards which insured that the infringement of a person's right to privacy extended no further than was reasonably necessary in the circumstances. A judicial officer was required to exercise his/her discretion to authorise a search in a manner which provided protection for the individuals right to privacy. Further, once the decision to issue the warrant had been made, the relevant judicial officer was required to ensure that the warrant was not excessively general nor overbroad and that its terms were 'reasonably clear'. The Chief Justice went on to say that there were further elements of protection for a party being so searched. A right to privacy may be vindicated by a reviewing court which can strike down overly broad warrants and order the return of objects seized pursuant thereto. Finally, the criminal trial must be fair and an accused person was entitled to object to any evidence of conduct that may render that trial unfair. See para 79 of the judgment.

"The performance of such function ordinarily call for the qualities and skills required for the performance of judicial functions -independence, the weighing up of information, the forming of an opinion based on information, and the giving of a decision on the basis of a consideration of relevant information. The same can be said about the searching of search warrants, where the Judge is required to determine whether grounds exist for the invasion of privacy resulting from searches."

[28] In performing the role of considering a challenge to the issue of the search warrant, a court was required to consider two jurisdictional facts for the issue of a search warrant: the existence of a reasonable suspicion that a crime has been committed and the existence of reasonable grounds to believe that objects connected with the investigation into the suspected offence may be found on the premises. See para 91

[29] Flowing from these jurisdictional requirements, Langa CJ described the obligations imposed upon investigators seeking search warrants as follows:

[31] Based on this analysis, Langa CJ held that the following was required for a valid warrant in terms of section 29 NPA:

[32] In this connection, Langa CJ observed that the common law principle of intelligibility needed clarification. It therefore fell to the Constitutional Court to give it more concrete content and to determine what it requires specifically when apply to section 29 warrants. He went on to say:

Respondents' case

[34] Mr Le Grange emphasised two mechanisms contained in section 29 NPA which were designed to inform the searched person about the scope of the authorised search. Section 29 (9) (a) provides that 'immediately before commencing with the execution', a copy of the warrant must be provided to the searched person. Section 29 (9) (b) requires the investigator 'to supply such a person at his or her request with particulars regarding his/her authority to execute such a warrant'.

[35] Mr Le Grange submitted that these provisions placed a duty on investigator to answer questions about the scope of the authorised search that a searched person may wish to ask in order to 'to enable the searched person who cannot read or understand complexed legal language to gain some idea of the ambit of the search to which she had been subjected'. Furthermore, the person executing the warrant had to hand to the searched person a copy of the warrant before commencing with the execution.

[36] By contrast, section 21 (4) of the Act provided that the person undertaking the search was obliged to hand a copy of the warrant 'to any person whose rights in respect in any search or article issued under the warrant have been affected' but only after the execution of the search warrant.

[37] Mr Le Grange therefore submitted that this distinction revealed the reason why a section 29 NPA warrant would require a reference to the suspected offence as opposed to a search warrant authorised under the Act. Under the NPA, the searched person had a right to gain an idea of the ambit of the search prior to its commencement. That was not the case with a search undertaken in terms of sections 20 and 21 of the Act.

emphasize the importance of considerations which allow due process principles to be trumped by the imperative of crime control.

Evaluation

"These cases establish this:
(a) Because of the great danger of misuse in the exercise of authority under search warrants, the courts examine their validity with a jealous regard for the liberty of the subject and his or her right to privacy and property.
(b) This applies to both the authority under which a warrant is issued, and the ambit of its terms.
(c) The terms of a search warrant must be construed with reasonable strictness. Ordinarily there is no reason why it should be read otherwise than in the terms in which it is expressed.
(d) A warrant must convey intelligibly to both searcher and searched the ambit of the search it authorises.
(e) If a warrant is too general, or if its terms go beyond those the authorising statute permits, the Courts will refuse to recognise it as valid, and it will be set aside.
(f) It is no cure for an overbroad warrant to say that the subject of the search knew or ought to have known what was being looked for: The warrant must itself specify its object, and must do so intelligibly and narrowly within the bounds of the empowering statute."

[45] Mr Le Grange sought to draw a distinction between the role of the prosecution who determine the change and the police who investigate. The point of this distinction was to argue that to insist that the warrant contains the offences for which the suspect may be charged was to conflate the role of police, who wish to conduct a search, with the prosecution who frame the charges at a later stage.

[47] The outcome of the task depends on the nature of the investigation. In some cases, it may be difficult to craft the warrant to do more than provide a general framework of the alleged offences. However in the present case, aided by the expertise of the SARS, it was more than possible for the magistrate to demand that necessary amendments be made to the warrants. The magistrates had available a detailed affidavit by third respondent who specified the offences which allegedly had been committed by various of the applicants and which would have allowed for the necessary inclusion in the warrant of the specified offences. Annexure C to the warrant directed at the Bellville premises of Carrim, Maritz & Associates illustrates very powerfully how sufficient information could have been included so as to comply with the intelligibility principle.

[48] That conclusion raised the question of the attack on the warrant of 10 June 2008. While paragraph 5 of Annexure B to that warrant which authorises the search of 'enige stawing van betalings gemaak tussen die volgende individue' is wide, I do not consider that the warrant reading with Annexure C authorises a 'general ransacking'. The warrant and annexure B must be read together with Annexure C. The basis of the case against applicants now becomes clear. Accordingly, the target of the investigation launched by second and fourth respondent is apparent as is the purpose of the search.

[49] Mr Hodes submitted that no reasons were provided by the magistrate who so authorised this particular warrant and accordingly it stood to be declared invalid. In his view, there was no clarity as to the basis upon which the magistrate had applied her mind in the issuing of such a warrant.

[50] However in this case, the seventh respondent enjoyed the benefit of the detailed affidavit of third respondent which specified the case against applicants. Annexure C provided further details thereof. On the basis that Annexure C was part of the warrant which was issued by seventh respondent, it is difficult to see the plausible basis upon which it can be alleged that a magistrate, in considering whether to grant such a warrant, could be said to have decided, without applying her mind, having been clearly appraised of all of these facts and having included within the warrant the relevant Annexure C. If the function of the magistrate is to scrutinize the case made out and ensure, in particular, compliance with the intelligibility principle, we consider that no adequate case has been made out by applicants to attack successfully the validity of this warrant. Given the approach adopted, we do not need to deal with the arguments concerning the alleged hearsay of Superintendent Kotze's description of the decision making process of the magistrates.

Preservation Order
[51] Mr Hodes submitted that a conditional counter application had been launched by fourth and fifth respondent on 28 November 2008, that is four days prior to the hearing of the case for a counter application. Applicants required an opportunity to file answering papers in opposition to this application.     Mr van Rooyen, who appeared on behalf of the fifth respondent, submitted that the counter application was not strictly necessary because, even without such an application, the court could grant a preservation order, sufficiently tailored to protect the interest of all parties. The difficulty with this submission is that a specific counter application was launched by respondents. It is in the interests of fairness therefore, that applicants be given some time to answer the case so brought. For this reason, the court will not decide the matter of preservation order in this judgment but will deal with the application at a date to be arranged with counsel.

Costs
[52] Although the court has only upheld three of the five challenges, applicants have been substantially successful and therefore are entitled to a favourable costs order

The Order

[53]   For these reasons the following order is made:

1. The decision of the Additional Magistrate, Cape Town, Mr James Lekuleni ("the first respondent"), on Friday, 7 March 2008 to issue search warrants in respect of Zonnekus, Chandos Close, Woodbridge Island, Milnerton, Cape Town ("Zonnekus"), Helibase, off Martin Hammerschlag Way, Culemborg, Cape Town ("Helibase") and 110 Starfish Crescent, Coral Grove, Royal Ascot, Cape Town ("Royal Ascot") ("the search warrants") and the issue of these search warrants are declared invalid and are set aside;
2.	The applications in respect of the search warrant issued by sixth respondent of the Randburg premises of Carrim and Maritz and the search warrant issued by seventh respondent of the Bellville premises of Carrim and Maritz are dismissed
3.	The counter application for a preservation order is postponed to a date to be arranged with the Registrar.
4.	Fourth and fifth respondents are ordered to pay the applicants' costs of suit, including the wasted costs of the postponement of the matter on 11 April 2008, and those occasioned by the employment of two counsel.