THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No:  20668/2014

In the matter between:

POMPO JOSEPH GOQWANA

APPELLANT

and

THE MINISTER OF SAFETY AND SECURITY NO

FIRST RESPONDENT
THE PROVINCIAL COMMISSIONER OF THE SAPS,
LIMPOPO PROVINCE
SECOND RESPONDENT
THE CHAIRPERSON:
THE LIMPOPO GAMBLING BOARD

THIRD RESPONDENT
LIEUTENANT SEBOLA

FOURTH RESPONDENT
THE MAGISTRATE PHALABORWA NO

FIFTH RESPONDENT

Neutral citation:
Goqwana v Minister of Safety NO & others (20668/14) [2015]
ZASCA 186 (30 November 2015)
Coram:
Mpati P, Petse, Willis, Swain and Zondi JJA

Heard:
13 November 2015

Delivered:
30 November 2015

Summary:
Search warrant – should be addressed to a specifically named police
official – where search relates to a statutory offence, as opposed to a
common law crime, the warrant should pertinently refer to the specific
statute and the section or subsection thereof – affidavit upon which
search warrant based must accompany warrant when executed –
appeal upheld – warrant set aside and goods seized ordered to be
returned.

ORDER

On appeal from:  Gauteng Division of the High Court, Pretoria (Kubushi, Bam and
Molopa JJ sitting as a court of appeal):
1. The appeal is upheld with costs.
2. The order of the court a quo is set aside and replaced with the following:
„(a) The warrant issued by the fifth respondent on 3 May 2012, in respect
of the applicant‟s business premises at the Skylounge Internet Lounge,
Eden Square Mall, corner of Palm and President Nelson Mandela Streets,
Phalaborwa, is set aside.
(b) The fourth respondent and any other respondent who is in possession
or control of the applicant‟s goods and monies listed in annexure „A‟ to the
applicant‟s notice of motion is to be restored to the applicant‟s possession
forthwith.
(c) The first to fourth respondents are jointly and severally liable to pay the
costs of the application, the one paying the other to be absolved.‟

JUDGMENT
___________________________________________________________________
Willis JA (Mpati P and Petse, Swain and Zondi JJA concurring):
[1] The appellant conducted a business known as the Skylounge Internet Lounge
at the Eden Square Mall in Phalaborwa. We were informed from the bar that the
correct spelling of the appellant‟s surname is „Qongwana‟ but, as the record has
been prepared on the basis that it is „Goqwana‟, I have retained the latter in the
citation. His business premises were searched on 4 May 2012, consequent upon a
search warrant issued by the fifth respondent (the magistrate of Phalaborwa), the
previous day. As a result of the search, furniture, computer equipment and cash to
the value of R13 200 were seized.

[2] The appellant brought an urgent application on 15 May 2012 before the
Gauteng Division of the High Court, Pretoria (Van der Byl AJ) for an order restoring
possession to him of the items seized. The root of the application was that the
search warrant itself was not in conformity with the requirements of the law.  It was
opposed on the basis that the appellant had been lawfully deprived of the goods in
question, in accordance with the search warrant. The high court dismissed the
application with costs. It also dismissed the application for leave to appeal. The
petition to this court was successful. This court directed that the appeal be heard by
the full court in the Gauteng Division. The full court (Kubushi, Bam and Molopa JJ)
dismissed the appeal with costs. Special leave was granted by this court to appeal to
it against the decision of the full court.

[3] The third respondent (the Limpopo Gambling Board) had complained to the
police that the appellant appeared to have contravened the provisions of both the
National Gambling Act 7 of 2004 (the NGA) and the Northern Province Casino and
Gaming Act 4 of 19961 (CGA) inasmuch as he had, without a license, allowed his
business premises to be used for gambling activity as provided for in those statutes.

[4] The first respondent is the Minister of Safety and Security, the second
respondent the Provincial Commissioner for the South African Police Service in the
Limpopo Province. The search and seizure at the appellant‟s business premises was
conducted by the third respondent, Lieutenant Sebola, a police official, on 4 May
2012.

[5] Mr Robert Lesibana Lekoto, a Law Enforcement Officer for the Limpopo
Gambling Board, deposed to the affidavit (also referred to in the papers as a „sworn
statement‟) in support of the application for the search warrant. In that affidavit, Mr
Lekoto said that he had investigated the premises of the appellant under the guise of
being a customer and discovered that the premises had indeed been used for the
conduct of illegal gambling activities. In that sworn statement Mr Lekoto refers to ss
28, 3 and, 82 of the NGA and ss 51, 56 and 77(b) and (e) of the CGA. In the
respondents‟ answering affidavit, however, there was also a particular complaint that
the appellant, without authorisation, had made his premises available to be used by
persons engaging in „interactive games‟, in contravention of the provisions of s 11 of

1 This Act has since been replaced by the Limpopo Gambling Act 3 of 2013, promulgated in the
Provincial Gazette on 22 August 2014, and came into effect on 1 September 2014.

the NGA. No reference was, however, made thereto in Mr Lekoto‟s sworn statement
upon which the magistrate relied when he issued the search warrant.

[6] In the body of the search warrant, it reads as follows:
„To the Station Commander
Whereas it appears to me [ie the magistrate who signed it] from information on oath that
there are reasonable grounds to believe that, within the magisterial district of Phalaborwa,
there is an article to wit Illegal Interactive Gambling (Online Gambling) which:
(a)  is concerned in the commission of an offence;
(b)  is concerned in the suspected commission of an offence;
(c)   is on reasonable grounds believed to be concerned in the commission of an
offence;
(d)  is on reasonable grounds believed to be concerned in the commission of an offence;
(e)  may afford evidence of the commission of an offence;
(f) may afford evidence of the suspected commission of an offence;
(g)  is intended to be used in the commission of an offence;
(h)  is on reasonable grounds believed to be intended to be used in the commission of
an offence
and which is in the possession of/under the control of/upon or at the premises at/upon the
person of Syknet Internet Lounge at Eden Park Square Mall cnr Palm and President Nelson
Mandela Streets.

THESE ARE THEREFORE to authorize you to search during the daytime 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 computers, electronic devices, CD‟s,
money, cash register, research and books relating to gambling activities if found and to deal
with it according to law/bring it before me to be dealt with according to law.

Given under my hand at Phalaborwa this 3rd day of May 2012.‟
After the words „To the Station Commander‟ in the standard form document that was
used for the issue of the search warrant, is a sign thus „†‟. This sign is repeated at
the bottom of the page with the following words alongside it: „Name of Police
Station‟. The name of the police station was not filled in. In addition, the allegations
in paragraphs (a) to (h) of the search warrant were the result of choices having been
made on a checklist, in accordance with the instruction „Mark with an X in the
applicable block‟.

[7] After the search warrant had been handed to the appellant at the premises,
his attorney, Mr Vasilios Vardakos, was contacted and arrived at the scene. He
enquired whether an affidavit had been presented to the magistrate in support of the
issuing of the warrant and, if so, requested to have sight thereof. It was only after
repeated requests by Mr Vardakos, including a formal letter of demand, that a copy
of the affidavit was indeed given to him, several weeks later.

[8] As has been pointed out, the appellant relied on the law relating to a
mandament van spolie for his application for the return of the seized items on the
basis that the police had unlawfully obtained possession of his goods. The appellant
contended that the search warrant was fatally defective because it did not name a
specific police official who was authorised to conduct the search in terms of the
warrant, alternatively that it was fatally defective inasmuch as it did not mention the
particular police station to which „the station commander‟ in question related or was
intended to apply. The appellant also contended that there was no offence known as

„Illegal Interactive Gambling (online gambling)‟, this having been the offence which
had been specified in the warrant. He contended further that the warrant had not
been lawfully issued because the sworn statement upon which the magistrate had
relied when issuing the warrant had made no mention of „interactive games‟. More
particularly, the appellant contended that the warrant did not specify the offence and,
in particular, did not refer to s 11 of the NGA, which relates to unauthorized
interactive gambling. The appellant complained that the magistrate had invoked, in
effect, the provisions of s 11 of the NGA without Mr Lekoto having done so in his
sworn statement.

[9] In summary, the appellant based his case on two main contentions: (i) that the
search warrant contained insufficient particularity as to whom it was addressed and
(ii) that ex facie the document, it did not specify the offence in connection with which
the search was to be conducted and therefore could not be „reasonably intelligible‟
either to the searcher or person searched. Accordingly, so the argument went, the
search warrant had been unlawfully issued and the seizure of the appellant‟s goods
consequent thereupon was, correspondingly, also unlawful.

[10] The first to fourth respondents, on the other hand, contended that the issuing
of the warrant addressed simply to „the Station Commander‟ was sufficient,
particularly in the context of there being only one police station in the relatively small
town of Phalaborwa. They also contended that the warrant was reasonably
intelligible, had satisfied the requirements of the law and, accordingly, that the
dispossession of the goods had been lawful.

[11] Sitting as the court of first instance, Van der Byl AJ heard the urgent
application. He observed that the search warrant was „not a model of accuracy‟ but
found that:
„The Station Commander, although not addressed by name, is a specific police official and
one responsible for the performance of public functions by police officials under his or her
command and I can see no reason why the fact that he was not referred to by name or that
any other person designated by name to execute the warrant or that any such failure can
detract from the aims and objectives of section 21 of the Criminal Procedure Act, 1977.‟
He also found:
„In my view the affidavit contains more than sufficient particularity to establish a reasonable
suspicion that offences of the contravention of the National Gambling Act 7 of 2004 and the
Limpopo Gambling Act 4 of 1996 were being committed by the person or persons
conducting business on the premises that was at that stage known as Skynet Internet
Lounge which call for the search and seizure of all articles relevant to any such offences.‟
Having considered the requirements set out by the Constitutional Court in Mistry v
Interim Medical and Dental Council of South Africa & others2 and Magajane v
Chairperson, North West Gambling Board,3 relating to the justification for intrusions
into a person‟s privacy that a search warrant necessarily entails, the judge
concluded:
„In these circumstances I find it difficult to see that the actions of the Respondents effected
any injustice to the Applicant and that the aims and objectives of the relevant provisions [ie s
20 of the Criminal Procedure Act, read against the background of these decisions by the
Constitutional Court] were not achieved.‟

2 Mistry v Interim Medical and Dental Council of South Africa & others 1998 (4) SA 1127 (CC),
especially paras 21, 23 and 27 to 30.
3 Magajane v Chairperson, North West Gambling Board 2006 (2) SACR 447 (CC), especially paras 33
to 96.

[12] The full court placed large reliance on the Constitutional Court‟s decision in
Minister of Safety and Security v Van der Merwe & others,4 which, in turn, drew
heavily upon Thint Holdings (Southern Africa) (Pty) Ltd v National Director of Public
Prosecutions; Zuma v National Director of Public Prosecutions5 – also a decision of
the Constitutional Court. The full court found that it could be inferred, quite obviously,
that the search warrant was intended to be addressed to the station commander at
the Phalaborwa police station and that this was a sufficiently adequate description of
the police official to whom it was addressed. It also found that the search warrant
contained a reasonably accurate description of the suspected offence and that it
was, objectively, „reasonably capable of being understood by a reasonably well-
informed person, who appreciated the legislation and the nature of the offences
involved.‟ The full court then, immediately before dismissing the appeal with costs,
unanimously concluded:
„[C]onsidered at the time of its issue, the terms of the warrant were sufficient to satisfy the
objective test of reasonable intelligibility.‟

[13]  This case raises questions of fundamental constitutional importance.
Provided there is no abuse of process, the issuing of search warrants and the
seizure of articles consequent thereupon is a vital, indeed necessary, element in the
effective combatting of crime. On the other hand, all people within the Republic of
South Africa have constitutionally enshrined rights to dignity, privacy, freedom,
security, trade and property.6 Earnest though the support of the courts for the SAPS

4 Minister of Safety and Security v Van der Merwe & others 2011 (5) 61 (CC).
5 Thint Holdings (Southern Africa) (Pty) Ltd v National Director of Public Prosecutions; Zuma v
National Director of Public Prosecutions 2009 (1) SA 141 (CC).
6  See ss 1, 12, 14, 22 and 24 of the Constitution of the Republic of South Africa, 1996. See also, in
general terms, Mistry v Interim Medical and Dental Council of South Africa & others 1998 (4) SA 1127
(CC); Investigating Directorate: Serious Economic Offences & others v Hyundai Motor Distributors

in their endeavours to combat crime must be, these constitutional rights have
especial significance.  More particularly in view of our history, that significance is
cardinal in magnitude.

[14] Iridescent in Investigating Directorate: Serious Economic Offences & others v
Hyundai Motor Distributors (Pty) Ltd & others: In re Hyundai Motor Distributors (Pty)
Ltd & others & others v Smit NO & others,7 Thint and Van der Merwe is the
requirement that the courts must strike a wholesome balance between, on the one
hand, the dignity and privacy of every citizen and, on the other, support for the State
in combatting crime.8

[15]  A brief outline of the basic principles relevant to search warrants is
accordingly apposite.  Minister of Justice & others v Desai NO9 makes it clear that it
has long been recognised in our law that a search warrant „constitutes a serious
encroachment on the rights of the individual‟ and that careful scrutiny by the courts is
required.10

[16]  In Minister of Safety and Security v Van der Merwe & others11 Mogoeng J,
delivering the unanimous judgment of the court, said in paras 55 and 56:
„What emerges from this analysis is that a valid warrant is one that, in a reasonably
intelligible manner:

(Pty) Ltd & others: In re Hyundai Motor Distributors (Pty) Ltd & others & others v Smit NO & others
2001 (1) SA 545 (CC); Thint (fn 5 above) and Van der Merwe (fn 4 above).
7 Hyundai (fn 6 above).
8 Hyundai (fn 6 above) para 54, Thint (fn 5 above) paras 74 to 79; Van der Merwe (fn 4 above) paras
21, 35 and 36.
9 Minister of Justice & others v Desai NO 1948 (3) SA 395 (A).
10 Desai (fn 9 above) at 403. See also Ex parte Hull (1891-1892) 4 SAR TS 134 and Hertzfelder v
Attorney-General 1907 TS 403.
11 Van der Merwe (fn 4 above).

(a) states the statutory provision in terms of which it is issued;
(b) identifies the searcher;
(c) clearly mentions the authority it confers upon the searcher;
(d) identifies the person, container or premises to be searched;
(e) describes the article to be searched for and seized, with sufficient particularity; and
(f) specifies the offence which triggered the criminal investigation and names the suspected
offender.

In addition, the guidelines to be observed by a court considering the validity of the warrants
include the following:
(a) the person issuing the warrant must have authority and jurisdiction;
(b) the person authorising the warrant must satisfy herself that the affidavit contains
sufficient information on the existence of the jurisdictional facts;
(c) the terms of the warrant must be neither vague nor overbroad;
(d) a warrant must be reasonably intelligible to both the searcher and the searched person;
(e) the court must always consider the validity of the warrants with a jealous regard for the
searched person‟s constitutional rights; and
(f) the terms of the warrant must be construed with reasonable strictness.‟ (Footnotes
omitted.)

[17] In the appeal before us, both the appellant and the first to fourth respondents
relied on Van der Merwe. The appellant contended that the search warrant was not
„reasonably intelligible to the searched person‟ and that it was „overbroad‟.12 The
respondents protested that, on the contrary, the search warrant was reasonably
intelligible to a person in the position of the appellant (ie a person operating an
internet café) and that it was not overbroad.

12 This was a term adopted by Cameron JA in Powell NO & others v Van der Merwe & others 2005 (5)
SA 62 (SCA) paras 4, 18, 21, 28, 48 and 59.

[18] In Pullen NO, Bartman NO and Orr NO v Waja,13 which the Constitutional
Court affirmed in Van der Merwe, it was said:
„It is desirable that the person whose premises are being invaded should know the reason
why; the arguments in favour of the desirability of such a practice are obvious.‟14

[19] In Powell NO & others v Van der Merwe No & others15 this court said that
search warrants would be scrutinised with „sometimes technical rigour and
exactitude‟.16  As Cameron JA observed in Powell, „a general ransacking‟ by the
police carrying out a search has, ever since at least 1891, not been allowed. In Ex
parte Hull,17 the protection of confidential documents from the intrusions of privacy
inherent in a search was an especial consideration. In Ex parte Hull, Kotze CJ said:
„The secrets of private friendship, relationship, trade and politics, communicated under the
seal of privacy and confidence would become public, and the greatest trouble,
unpleasantness and injury caused to private persons, without furthering the true purposes of
criminal justice in the slightest degree.‟18

[20]  Insofar as the failure of the warrant to refer to a specific police officer is
concerned, the provisions of s 25(1) of the CPA are relevant. This section provides
that:
„25 Power of police to enter premises in connection with State security or any offence
(1) If it appears to a magistrate or justice from information on oath that there are reasonable
grounds for believing-

13 Pullen NO, Bartman NO & Orr NO v Waja 1929 TPD 838.
14 At 849. See also Van der Merwe (fn 4 above) para 54.
15 Powell NO & others v Van der Merwe NO & others 2005 (5) SA 62 (SCA).
16 Paragraph 50.
17 Ex parte Hull (fn 10 above).
18 At 141.

(a) that the internal security of the Republic or the maintenance of law and order is likely to
be endangered by or in consequence of any meeting which is being held or is to be held in
or upon any premises within his area of jurisdiction; or
(b) that an offence has been or is being or is likely to be committed or that preparations or
arrangements for the commission of any offence are being or are likely to be made in or
upon any premises within his area of jurisdiction, he may issue a warrant authorizing a police
official to enter the premises in question at any reasonable time for the purpose-
(i) of carrying out such investigations and of taking such steps as such police official may
consider necessary for the preservation of the internal security of the Republic or for the
maintenance of law and order or for the prevention of any offence;
(ii) of searching the premises or any person in or upon the premises for any article referred
to in section 20 which such police official on reasonable grounds suspects to be in or upon
or at the premises or upon such person; and
(iii) of seizing any such article.‟ (Emphasis added.)
The repeated correlation between „a‟ and „such‟, when reference is made to a „police
official‟ in these subsections, is indicative of a singular degree of specificity. The
references to „a police official‟ and „such police official‟ in these subsections are not
reasonably capable of being interpreted in any other manner.

[21]  This approach was correctly followed in Naidoo & another v Minister of Law
and Order & another,19 Smit & Maritz Attorneys & another v Lourens NO & others,20
and  S v Ntsoko.21 In Naidoo it was said that where s 25(1) of the Criminal Procedure
Act 51 of 1977 (the CPA) refers to a „police official‟ that indicated „that the Legislature
intended that an identified police officer should be named and should act

19 Naidoo & another v Minister of Law and Order & another 1990 (2) SA 158 (W).
20 Smit & Maritz Attorneys v Lourens NO & others 2002 (1) SACR 152 (W).
21 S v Ntsoko 2011 JDR 0655 (GNP).

throughout‟.22 (Emphasis added.) In Smit & Maritz v Lourens, Van Oosten J followed
Naidoo and required that a ‘known and named police official‟ should be authorized in
terms of a search warrant.23 (The emphasis appears in the original text.) In Naidoo,
Roux J relied on the provisions of s 29 of the CPA, which require a „strict regard to
decency and order‟ in the search of any person or premises in coming to this
conclusion.24

[22]  Section 29 of the CPA, upon which Roux J relied in Naidoo, provides as
follows:
„A search of any person or premises shall be conducted with a strict regard to decency and
order, and a woman shall be searched by a woman only, and if no female police official is
available, the search shall be made by any woman designated for the purpose by a police
official‟.
In my respectful opinion, Roux J was incorrect to rely on the provisions of this
section in drawing his conclusion. A plain reading of ss 21(2) and 25(1) of the CPA
makes it clear, however, that he was correct in determining that an identified police
officer should be named and should act throughout.

[23]  In Ntsoko, Mabuse J observed, among other criticisms of various search
warrants, that:
„All the said warrants are addressed to “the Station Commander”. They have not been
addressed to a specifically named officer nor have they been addressed to a particular

22 At 161D.
23 At 157d.
24 At 161D.

police station. This is contrary to the provisions of Section 21(2) of the [Criminal Procedure
Act] . . .‟25
The judge found, for a number of reasons, that the terms of the search warrants
were overbroad, did not satisfy the test in Powell and set them aside.26 The full court
hearing the present matter disagreed with the criticism in Ntsoko of the warrant being
addressed simply to „the Station Commander‟.

[24] In Silwana & another v Magistrate, District of Piketberg & another27 however,
Foxcroft J, with whom Dlodlo AJ concurred,  noted en passant,  when referring to
criticisms that a search warrant had not referred to a specifically named police officer
or to the officer commanding of a particular police station, that „[i]t would be a matter
of no difficulty for anyone to ascertain who the station commander was on the date
when the warrant was signed‟ and that it „makes more sense to specify a station
commander than a named person who might not be available at the very moment
when a search warrant needed to be carried out‟.28 This judgment arose within the
context of the application for the recusal of a magistrate in a trial, where he had
earlier issued the search warrant. In regard to the naming of the police official, the
approach adopted in Silwana does not, however, accord with either a literal or
purposive approach to the interpretation of s 25(1) of the CPA.

[25]  In the context of a purposive interpretation of s 25(1) of the CPA, Mr Mtsweni,
counsel for the first to fourth respondents, conceded that, in practice, it will be rare
indeed that the station commander conducts a search in terms of s 25 of the CPA.

25 Paragraph 21.
26 Paragraph 29.
27 Silwana & another v Magistrate, District of Piketberg & another 2003 (5) SA 597 (C).
28 At 601C-E.

Normally, it will be the investigating officer. The interpretation that the police official
should be named in the search warrant acts as a safeguard against abuse so that
when the warrant is executed‟, a person at the premises to be searched can ask not
only for the police official to produce his or her police identity card but also to
demonstrate the reference to him or herself in the warrant itself. This interpretation
also reinforces the principle of accountability, more especially as it will ordinarily be
the investigating officer who applies to the magistrate for a search warrant, leading to
the search itself. Of course, the circumstances will very often require that the
investigating officer be assisted by other police officials. It remains salutary,
however, that at least one police official responsible for the search should pertinently
be identified in the actual search warrant.

[26]  As for the requirements that a search warrant should specify the offence in
connection with which the search is to be conducted and should be „reasonably
intelligible‟, the provisions of the NGA and CGA should further be read together with
the provisions of ss 20, 21 and 25, of the CPA.

[27]  Section 20 provides as follows:
„20 State may seize certain articles
The State may, in accordance with the provisions of this Chapter, seize anything (in this
Chapter referred to as an article)-
(a) which is concerned in or is on reasonable grounds believed to be concerned
in the commission or suspected commission of an offence, whether within
the Republic or elsewhere;
(b) which may afford evidence of the commission or suspected commission of
an offence, whether within the Republic or elsewhere; or

(c) which is intended to be used or is on reasonable grounds believed to be
intended to be used in the commission of an offence.‟

[28] Section 21 of the CPA provides:
„21 Article to be seized under search warrant
(1) Subject to the provisions of sections 22, 24 and 25, an article referred to in section 20
shall be seized only by virtue of a search warrant issued–
(a) by a magistrate or justice, if it appears to such magistrate or justice from information on
oath that there are reasonable grounds for believing that any such article is in the
possession or under the control of or upon any person or upon or at any premises within his
area of jurisdiction; or
(b) by a judge or judicial officer presiding at criminal proceedings, if it appears to such judge
or judicial officer that any such article in the possession or under the control of any person or
upon or at any premises is required in evidence at such proceedings.
(2) A search warrant issued under subsection (1) shall require a police official to seize the
article in question and shall to that end authorize such police official to search any person
identified in the warrant, or to enter and search any premises identified in the warrant and to
search any person found on or at such premises.‟ (Emphasis added.)
The repeated correlation, once again, between „a‟ (or „an‟) and „such‟, when
reference is made in these subsections either to the „article‟ to be seized or a „police
official‟ who is to do the seizing, is indicative that a high degree of specificity is
required.

[29]  It is clear that any unlicensed interactive games that might have taken place
at the premises would have been in contravention of s 11 of the NGA, which
provides as follows:
„11 Unauthorised interactive gaming unlawful

A person must not engage in or make available an interactive game except as authorized in
terms of this Act or any other national law…‟
Nevertheless, in his sworn statement in support of the search warrant, Mr Lekoto did
not refer to this section at all.  Furthermore, there is no statutory offence known as
„illegal interactive gambling (online gambling)‟ – this being the „offence‟ described in
the search warrant. This underscores the importance of it ordinarily being desirable
that when dealing with a statutory offence, as opposed to a common law crime, the
warrant should pertinently refer to the specific statute and the section or subsection
thereof in order to enable the person in charge of the premises to be searched
(assisted, if needs be, by his or her lawyer) and also the police official authorised in
terms of the search warrant to know precisely that for which the search has been
authorised. The need for particularity in a warrant, especially where one is dealing
with statutory offences, is salutary. This should present no difficulty in practice
because search warrants are issued by magistrates who are trained and
experienced in law. It hardly needs be said that gambling, whether „online‟ or
„interactive‟ (whatever that may mean precisely), is not a common law crime.

[30] A
search
warrant
is
not
some
kind
of
mere
„interdepartmental
correspondence‟ or „note‟. It is, as its very name suggests, a substantive weapon in
the armoury of the State. It embodies awesome powers as well as formidable
consequences. It must be issued with care, after careful scrutiny by a magistrate or
justice, and not reflexively upon a mere „checklist approach‟.

[31] What of the affidavit upon which the magistrate relies in terms of s 25 of the
CPA? In the body of the search warrant, it does indeed refer specifically that it

appears to the magistrate „from information on oath that there are reasonable
grounds to believe that …‟. It therefore refers directly to the affidavit or sworn
statement of Mr Lekoto. Section 21(4) of the CPA requires that, after execution, the
police official who has executed the warrant shall „upon demand of any person
whose rights in respect of any search or article seized under the warrant have been
affected, hand to him a copy of the warrant.‟ In Polonyfis v Minister of Police29
Cachalia JA, delivering the unanimous judgment of this court, said:
„After the search a copy of the warrant and any document referred to in it must – on demand
– be handed to the person in charge [of the premises] who may then decide whether or not
to challenge the validity of the warrant, either because it was unlawfully issued or unlawfully
executed.‟30
It is accordingly imperative that the affidavit or sworn statement in support of the
warrant should accompany the warrant and be handed over together with it. This
would, additionally, facilitate the expedition of any court application in which a person
may wish to contend that his or her rights were adversely affected by the search.
This injunction accords with the constitutionally enshrined right of every person to
have access to information „that is held by another person and that is required for the
exercise or protection of any rights‟.31  This right is embodied in the Promotion of
Access to Information Act 2 of 2000.32 It is regrettable that the appellant had to wait
several weeks before he was able to receive a copy of Mr Lekoto‟s sworn statement
from the police.

29 Polonyfis v Minister of Police 2012 (1) SACR 57 (SCA).
30 Para 19.
31 See s 32(1) of the Constitution of the Republic of South Africa, 1996.
32 See s 9 thereof as well as s 32(2) of the Constitution, which requires that national legislation be
enacted to give effect to this right.

[32] I am mindful of the recent decision of the Constitutional Court in Ngqukumba v
Minister of Safety and Security & others33 in which a helpful analysis was given of
the circumstances in which the mandament van spolie would be available.34 We are
also mindful of the fact that in Polonyfis, after having referred to Pretoria Portland
Cement Co Ltd & another v Competition Commission & others,35 this court indicated
that, in the absence of an „abuse of power‟ or a „gross violation‟ of the rights of a
person to be searched, it would be slow to find that a search warrant is unlawful on
purely technical grounds.36 In all the circumstances of the matter, however, the
appellant has rightly claimed the setting aside of the search warrant and the return of
the articles seized.

[33] The standard forms or „template‟ used for the issue of search warrants will
have to be revised in the light of this judgment. Nevertheless, as Mogoeng J said in
Van Der Merwe, the retrospective invalidation in respect of all past warrants issued
in a manner that is defective as a consequence of this judgment does not ensue.37
This, as he observed, might give rise to undesirable consequences.38 The courts
must adjudicate each individual case on its own merits and all warrants hitherto
issued contrary to the guidelines herein contained, remain valid unless set aside on
a case by case basis.39

33 Ngqukumba v Minister of Safety and Security & others 2014 (5) SA 112 (CC).
34 Paragraphs 10 to 21. See also Judelman v Colonial Government (1909) 3 BAC 446 at 453; Sillo v
Naude 1929 AD 21 at 26; Mans v Marais 1932 CPD 352 at 353-354; Moleta v Fourie 1975 (3) SA 999
(O) at 1001–2; Surtee's Silk Store (Pty) Ltd v Community Development Board 1977 (4) SA 269 (W) at
270A–H; Potgieter v Du Plessis 1978 (1) SA 751 (NC) at 754H.
35 Pretoria Portland Cement Co Ltd & another v Competition Commission & others 2003 (2) SA 385
(SCA) paras 71 and 73.
36 Paragraph 23.
37 Paragraphs 58 to 60.
38 Paragraph 60.
39 See also Van der Merwe (fn 4 above) paras 60 and 61.

[39]  The following order is made:
1 The appeal is upheld with costs.
2 The order of the court a quo is set aside and replaced with the following:
„(a)
The warrant issued by the fifth respondent on 3 May 2012, in
respect of the applicant‟s business premises at the Skylounge Internet
Lounge, Eden Square Mall, corner of Palm and President Nelson Mandela
Streets, Phalaborwa, is set aside.
(b) The fourth respondent and any other respondent who is in possession
or control of the applicant‟s goods and moneys listed in annexure „A‟ to the
applicant‟s notice of motion is to be restored to the applicant‟s possession
forthwith.
(c) The first to fourth respondents are jointly and severally liable to pay the
costs of the application, the one paying the other to be absolved.‟

______________________
N P Willis
Judge of Appeal

APPEARANCES:

For the Appellant:
N Jagga
Instructed by:
Vardakos Attorneys, Vereeniging
Honey Attorneys, Bloemfontein

For the First to Fourth
Respondents:

D Mtsweni
Instructed by:
State Attorney, Pretoria
State Attorney, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

30 November, 2015

STATUS

Immediate

Goqwana v Minister of Safety and Security & others (20668/20140504/14) [2015]
ZASCA  (xxxx 2015)

Please note that the media summary is for the benefit of the media and does
not form part of the judgment.

Today the Supreme Court of Appeal (SCA) upheld an appeal with costs, set aside
the order of the high court and replaced it with the following:
‘(a)
The warrant issued by the fifth respondent on 3 May 2012, in
respect of the applicant’s business premises at the Skylounge Internet
Lounge, Eden Square Mall, corner of Palm and President Nelson Mandela
Streets, Phalaborwa, is set aside.
(b) The fourth respondent and any other respondent who is in possession
or control of the applicant’s goods and moneys listed in annexure ‘A’ to the
applicant’s notice of motion is to be restored to the applicant’s possession
forthwith.

(c) The first to fourth respondents are jointly and severally liable to pay the
costs of the application, the one paying the other to be absolved.’

The appellant had conducted a business known as the Skylounge Internet Lounge at
the Eden Square Mall in Phalaborwa. His business premises were searched on 4
May 2012, consequent upon a search warrant issued by the magistrate of
Phalaborwa, the previous day. As a result of the search, various items of furniture,
computer equipment and cash were seized.

The appellant then brought an urgent application on 15 May 2012 before the
Gauteng Division of the High Court, Pretoria (Van der Byl AJ) for an order restoring
possession to him of the items seized. The high court dismissed the application with
costs.

The appellant based his case on two main contentions: (i) that the search warrant
contained insufficient particularity as to whom it was addressed and (ii) that ex facie
the document, it did not specify the offence in connection with which the search was
to be conducted and therefore could not be ‘reasonably intelligible’ either to the
searcher or person searched.

The SCA found that an identified police officer should be named in the search
warrant and should act throughout. The SCA also found that it is ordinarily being
desirable that when dealing with a statutory offence, as opposed to a common law
crime, the search warrant should pertinently refer to the specific statute and the
section or subsection thereof in order to enable the person in charge of the premises
to be searched (assisted, if needs be, by his or her lawyer) and also the police
official authorised in terms of the search warrant to know precisely that for which the
search has been authorised and in relation to which particular offence the search is
directed.

Additionally, the SCA concluded that it is imperative that the affidavit or sworn
statement in support of the warrant should accompany the warrant and be handed
over together with it. This would, additionally, facilitate the expedition of any court

application in which a person may wish to contend that his or her rights were
adversely affected by the search.

For these reasons the SCA concluded that the appellant had rightly claimed the
setting aside of the search warrant and the return of the articles seized.