REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE No: A 228/09
the matter of

and

JUDGMENT DELIVERED : 30 APRIL 2010

MATTER HEARD ON 29 JANUARY 2010 BEFORE LOUW, MOOSA et ALLIE, JJ

Judgment: Moosa, J (Allie, J: Concurs)

On behalf of Respondents 	: Att Z Omar
Attorney(s)	: Zehir Omar Attorneys (c/o Niland 	Attorneys)

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE No: A 228/09

In the matter of
MINISTER OF SAFETY & SECURITY				First Appellant

SUPERINTENDENT NOEL GRAHAM ZEEMAN			 Second Appellant

PAUL CHRISTIAAN LOUW N O					Third Appellant

and

MUSTAFA MOHAMED						First Respondent

OMAR HARTLEY							 Second Respondent

JUDGMENT DELIVERED : 30 APRIL 2010

MOOSA, J:

Introduction

The Scope of the Enquiry

The Forum which is to Adjudicate the Remaining Issues

[7] It is perhaps appropriate to mention that the Second Respondent was not a suspect in this matter and nothing was seized from his premises at 16a Axminister Street,
Muizenberg. We are essentially seized with the challenge of the warrant in respect of 16a and 16 Axminister Street, Muizenberg ("the said premises") by First Respondent.

Application for the Reconsideration of the Matter

"I would add that apart from compromising or jeopardising the criminal investigation, the disclosure of the complete affidavit placed before the
Third Appellant when he authorised the search warrant in question, is likely to reveal the identity of the source of the information contained in the affidavit, which in turn, is likely to endanger that person's life."

[10]     The Second Appellant, in paragraph 14 of his answering affidavit, dated 18 March

2008, went on to state:
"I shall, however, ensure that a copy of the affidavit placed before the respective Magistrates (with sensitive details which is (sic) likely to prejudice the investigation expunged from it) is made available to the presiding Judge at the hearing of the application with the request that its contents not be made public."

"I am not at liberty to disclose this information because it is sensitive and is likely to compromise or jeopardise the investigation, as stated in the affidavit of Superintendent Zeeman. For the same reasons, I have been asked not to annex to this affidavit, a copy of Superintendent Zeeman's affidavit made on 24 January 2008."

State.

[17] In my view, it would be improper for an officer of a lower court to have access to certain information in a matter and the officer of a superior court reviewing the decision of that officer not having access thereto. The situation is untenable as it impacts on the integrity and independence of the judiciary. At the same time, I am mindful of the fact that it is in the public interest for the identity of informers to be protected as they play a valuable role in the fight against crime. For reasons that will become apparent later, it is not necessary for me to resolve this dilemma.

Evaluation of the Remaining Issues

Material Non-Disclosure
[19] The first ground is the question of material non-disclosure. The First Respondent alleged in his papers that the Second Appellant is guilty of misstatement and material nondisclosure in that he did not disclose to the Third Appellant in chambers that the First Respondent had no previous convictions. The Appellants denied these allegations. There is no obligation in law, statutory or otherwise, for the Second Appellant to have disclosed to the Third Appellant that First Respondent had no previous convictions. The presence or absence of previous convictions is, in any case, not a prerequisite for the issue of a warrant in terms of section 21 read with section 20. If such information were disclosed and the party did indeed have previous convictions, the party involved could well have argued that he or she had been prejudiced by such disclosure. I do not think that there is any merit in this ground.

Notice and Safeguards

[22] I am satisfied that, on the facts and circumstances of this case, there was no need to give the First Respondent prior notice of the application for a warrant or to build in safeguards in order to give him a fair chance to establish and enforce his rights before they were invaded.

Whether the Limitation of Respondents' Rights was Reasonable and Justifiable
[23] The third ground relates to the limitation of the rights. The First Respondent states that the Appellants have not justified, or even made any serious efforts to justify the limitations of their rights in terms of section 36 of the Constitution. The Appellants sought to impose and succeeded in imposing the limitations on his constitutional rights to dignity (Section 10), privacy (Section 14) and freedom to practice his trade, occupation or profession (Section 22) under cover of the warrant and the powers conferred upon them by the Act. The Appellants averred that these constitute legal argument. However, they have denied that the Respondents' rights have been infringed.

Legal Principles Governing Search and Seizure
[24] In this matter the search and seizure were authorised in terms of section 21 read with section 20 of the Act. Section 20 authorises the State to seize certain articles pursuant to a warrant issued in terms of section 21. The object is to enable the State to obtain evidence to institute a prosecution in respect of certain alleged offences. The search and seizure operation impacts seriously on the right to privacy which is entrenched in the Constitution.

[25]     Section 14 of the Constitution provides:
"Everyone has the right to privacy, which includes the right not to have -
(a)	their person or home searched;
(b)	their property searched;
(c)	their possessions seized; or
(d)	the privacy of their communications infringed."

Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors

[26]     These constitutional rights may be limited under certain circumstance in terms of
section 36 (1) of the Constitution, which provides:
"The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom taking into account all relevant factors, including -
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e)	less restrictive means to achieve the purpose."

The Over- Broadness of the Warrant
[29] I now consider the fourth ground namely, the over-broadness of the warrant. The Respondents launched the challenge on two legs: the first leg was "that the people identified on page 4 of 'MM1' under the heading 'Persons to participate in the search' is over- broad and unlawful "; the second leg was that the warrant as a whole is over-broad in that there is no rational connection between the wide terms of the search warrant sought and the grounds for justification for such warrant.

The First Leg of the Enquiry
[30] I will deal with the first leg, namely, that the police officers authorised to participate in the search were over-broad and unlawful. The Appellants denied the allegations "for reasons to be argued at the hearing of this application". The warrant is addressed to the Second Appellant and to the police officials identified in annexure "A". Annexure "A" identifies five police officers by their ranks and names and contains a general category, namely, "And other members of Organised Crime". Annexure "A" also contains a list of four premises to be searched. Only one falls within the jurisdiction of the court from which the impugned warrant was issued. Section 21 (2) of the Act authorises a police official to carry out the search and seizure operation.

[31] It is important that the police official, who is authorised to execute the warrant, is identified in the warrant, so that the person whose right to privacy is being invaded, can demand that the police official concerned identifies himself or herself. Section 29 of the Act provides for the search to be conducted with strict regard to decency and order. The unidentified members of the Organised Crime Unit mentioned in the warrant were merely required to assist the identified police officials to execute the warrant.

[32] Taking into consideration that four different premises were to be searched, the number of identified and unidentified officers, in my opinion, cannot be regarded as unreasonable for the operations. In the circumstances I hold that the number of police officers authorised to participate in the searches does not make the warrant over-broad and unlawful as alleged by the Respondents.

The Second Leg of the Enquiry

[34] A close scrutiny of the warrant does not reflect when the alleged offences were committed. The Protection of Constitutional Democracy Against Terrorist and Related
Activities, Act No 33 of 2004 ("Act No 33 of 2004") came into operation on 20 May 2005. Terrorism, as an offence, is covered in the warrant as a separate offence, but is also replicated as an offence under section 2 of Act No 33 of 2004. The Internal Security Act 74 of 1982, which was the previous legislation that regulated the offence of terrorism, was repealed with the coming into operation of Act No 33 of 2004. It is, therefore, presumed that the crime of terrorism was included in the event of the offence having been committed prior to 20 May 2005 and thus falling outside the scope of Act No 33 of 2004. The affidavit of the Second Appellant dated 24 January 2008, seeking a warrant from the Third Appellant, says in paragraph 13:
"I refer to annexure "B" which contains the time periods relevant to the documents required. The time periods therein were determined with reference to the periods during which the suspects committed the offence."

(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 rights 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 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 authorising statute permits, the courts will refuse to recognise it as valid, and it will be set aside;
(f)	

[38] The test whether the warrant is too general and over-broad is assessed objectively on the basis that a warrant must be reasonably intelligible in the sense that it must reasonably convey both to the searcher and the searched the ambit of the search it authorises in the light of the requirements of section 21 read with section 20 of the Act.

[39] On the basis of the above principles, I will examine whether the terms of the warrant are too general and over-broad. The warrant under examination authorises the police officials described in annexure "A" to enter the said premises and to search and seize articles/documents referred to in annexure "B" and to search any person, vehicle or container on or at such premises for the said articles/documents and to seize them if found.

[40] The warrant further authorises the Technical Support Unit ("TSU") of the SAPS to download from computers, electronic equipment and devices (the "electronic equipment") information that may be stored with regard to the documents referred to in annexure "B" or authorises any police official identified in annexure "A" to seal the equipment and remove them to the offices of the TSU for purpose of downloading. The search and seizure of the electronic equipment serves a limited purpose, namely, to download articles/documents mentioned in the warrant.

[41]     The articles/documents set out in annexure "B" to the warrant, on the face of it, appear to be too general, over-broad and its terms are not reasonably clear. The warrant is, in my view, not reasonably intelligible, in that it does not reasonably convey to the persons participating in the search as per annexure "A" and the suspects and occupants of the premises the ambit of the search it authorises. The scope of the warrant gives, in my view, untrammelled power to search the said premises and seize from such premises any articles/documents they see fit within the range of the various classes of items. I will examine each class of item to show the generality, over-broadness and vagueness. 

(a)   Item 1: The object of searching and seizing the electronic equipment is limited to downloading the stored information and documents referred to in annexure "B" of the warrant or removing such electronic equipment for the purpose of downloading such information and documents. Should the need for downloading such information and documents cease, then the seizure of the electronic equipment comes to an end. Because of my findings which will become apparent later, the object of searching and seizing the electronic equipment has come to an end.
(b) Items 2, 3, and 4: The financial statements, accounting records and bank documents are unlimited in scope, too general and over-broad. The warrant authorises the seizure of these items belonging to anyone. In the present instance, the police could have seized the financial statements, accounting records and bank documents of the Second Respondent and his spouse and of those of the parents and maternal grandmother of the First Respondent, who occupied the premises. The warrant gave no indication how far back in time the searches could extend. Financial statements, accounting records and bank statements going back many years and unrelated to the alleged offences, could be subject to seizure. The warrant, furthermore, does not distinguish between persons who could reasonably be suspected of being in possession of the articles and documents and others who happen to be fortuitously on the premises. The warrant can expose innocent persons with no connection to the alleged offences to the risk of being searched and their rights of privacy and dignity being infringed;
(c) Items 6, 7, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, and 25 are too general and over-broad, and ambiguous as to render them reasonably meaningless to the searcher and the searched. Some of the items can only make sense to the investigating officer seeking the warrant and not the searched. There is also no indication in the warrant of the time frames of the articles and documents to be searched for and seized. It appears from the wording of the warrant that those executing the warrant have untrammelled power to determine what may or may not be taken within the range of classes set out in the said items and, as such, it is not reasonable and justifiable in terms of section 36 of the Constitution.
(d)  Items 5, 6, 8, 9 and 26 are about the closest one can get to possible incriminating evidence of the commission of a crime. I will deal with them hereunder:

[43] Save for the items set out in paragraph 41 (d) to which I will return later, all the other items in the warrant, in my view, are too general, over-broad and the terms are not reasonably clear. This then brings me to the next issue, namely, whether the Third Appellant applied his mind to the matter and exercised his discretion properly or at all.

Whether Third Appellant Applied his Mind to the Matter

warrant on application to a neutral officer of the court, ensures that intrusions upon an individual's right to privacy are safeguarded."

[46] In the light of my findings, the only reasonable inference I can draw is that the Third Appellant had failed to apply his mind properly or at all, firstly when it came to the jurisdictional requirements for the authorisation of the warrant in terms of section 21 read with section 20 of the Act and secondly, when it came to the settling of the terms of the warrant. I say so for the following reasons: in the first place, The Third Appellant, misconceived his powers, role and function and made no input in the crafting of the warrant for which he was responsible as a judicial officer; in the second place, the terms and ambit of the warrant that was presented to him by the Second Appellant, was accepted and authorised uncritically by him without him having made any input into the terms and ambit of it; in the third place, he failed to take cognisance of the omission of the dates from the warrant which, according to the Second Appellant, contains time periods relevant to the documents required, and which were determined with reference to the periods during which the suspects committed the offence and, in the fourth place, the terms of the warrant were substantially too general, over-broad and not reasonably clear.

The Severability of the Warrant

The Fate of the Articles Seized
[48] The next question to be considered is what happens to the articles and documents seized in terms of an unlawful warrant. In my opinion the articles and documents can conveniently be divided into four categories. The first is the electronic equipment; the second are those articles and documents which may be of an incriminating nature and which may proffer evidence of the commission of an offence; the third are those articles and documents which have been seized by virtue of the over-broadness of the warrant and the fourth are those articles and documents that have been seized but which have not been authorised by the warrant.

[49] It appears from the Second Appellant's affidavit that a preliminary examination of the documents, electronic data and chemicals seized, reveals that there are documents on how to manufacture and set off improvised explosive devices; chemicals used in the manufacture of explosive devices; videos depicting gruesome and explicit scenes of the murder of persons and numerous encrypted messages. It appears further that the investigation, to a large extent, is based on the items seized and is confined to contravention of sections 2, 3, and 5 of Act No. 33 of 2004.

[51] Should the Director of Public Prosecution decide not to institute prosecution in terms of section 16 of Act 33 of 2004, the articles and documents should be returned to the persons from whose possession those articles and documents have been seized, subject to the provisions of section 31 of the Act. On the other hand, should he or she decide to institute prosecution and decide to tender the articles and documents as evidence, the accused would, in terms of section 35(5) of the Constitution, be entitled to object to the admissibility of such evidence on the ground that it would make his trial unfair. The trial court would then be in the best position to give a ruling on the matter in the light of relevant circumstances.

The Costs
[52] I now finally come to the question of costs. I have mentioned earlier that I will return to the question of costs in connection with the admission of new evidence on appeal. The Appellants as well as the Respondents have been successful in respect of some of the grounds of challenge to the warrant. The Respondents, in my view, have been substantially successful in the appeal. I see no reason why costs, including the costs of the admission of new evidence on appeal, should not be awarded to the Respondents.
The Order

(a) The decision of the First Respondent of 24 January 2008 to authorise the issue of a search warrant and the search warrant dated 24 January 2008 are declared unlawful and are set aside;
(b) The search and seizure conducted on 25 January 2008 at 16 and 16a Axminister Street, Muizenberg, are declared unlawful;
(c) Other than articles and documents seized in pursuance to items numbered 5, 6, 8, 9 and 26 of the search warrant, the Third Respondent is ordered to return all articles and documents, including computers, electronic equipment and accessories, to the person or persons from whose possession they have been seized, subject to the provisions of section 31 of the Criminal Procedure Act, 51 of 1977;

ALLIE, J: I agree.