GOQWANA v MINISTER OF SAFETY AND SECURITY NO AND OTHERS 2016 (1) SACR 384 (SCA)
Search and seizure — Search warrant — Validity of — Identification of person conducting search — Specific official entrusted to execute search should be identified.
Search and seizure — Search warrant — Validity of — Identification of offence for which warrant obtained — Specific statutory offence, including statute and section applicable, should be stated.
Search and seizure — Search warrant — Validity of — Affidavit on which warrant granted by magistrate — Should be made available to person in charge of premises at time of search.
The appellant was the owner of business premises which were raided by the police at the instigation of the Limpopo Gambling Board, which complained that the premises were being used for gambling without a licence as required by the National Gambling Act 7 of 2004 and the Northern Province Casino and Gaming Act 4 of 1996. The search warrant, issued by a magistrate, was addressed to ‘the Station Commander’ and referred to the offence which was alleged to have been committed as ‘Illegal Interactive Gambling (Online Gambling)’. The warrant was executed and a quantity of goods seized.
He applied in the High Court for the setting-aside of the warrant but this was refused. An appeal against this finding was also dismissed by the full court. On appeal to the Supreme Court of Appeal, the appellant contended that the police had unlawfully obtained possession of his goods since the search warrant was defective in two respects namely, that it failed to name a specific police official authorised to conduct the search in terms of the warrant, and, secondly, that the alleged offence mentioned in the warrant was not an offence in law.
Held, that the repeated correlation between ‘a’ and ‘such’ when reference was made to a ‘police official’ in s 25(1) of the Criminal Procedure Act 51 of 1977, which set out the powers of the police to carry out searches in terms of a warrant, indicated a singular degree of specificity. Although rare that the station commander would conduct such a search — normally it would be the investigating officer — an interpretation that the police official should be named in the warrant acted as a safeguard against abuse. When the warrant was executed, a person at the premises to be searched could then ask the police official not only to produce their identity card but also to demonstrate the reference to themself in the warrant itself.
Held, as to the failure to denote the actual offence in the warrant, that there was no statutory offence known as ‘Illegal Interactive Gambling (Online Gambling)’. It was ordinarily desirable when dealing with a statutory offence, as opposed to a common-law crime, that the warrant should pertinently refer to the specific statute and the applicable section or subsection. This would enable the person in charge of the premises, and the police official authorised in terms of the search warrant, to know precisely that for which the search had been authorised.
The court found it necessary to comment on a complaint by the appellant that his attorney was not given a copy of the affidavit upon which the warrant was granted on arrival at the scene of the search — this had only happened weeks later, after repeated requests, which included a formal letter of demand. It noted that it was imperative that the supporting affidavit accompany the warrant and be handed over together with it. This would expedite any court application in which a person might wish to contend that their rights had been adversely affected by the search.