THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case number: 671/06
Reportable

In the matter between:

THINT (PTY) LTD
APPELLANT

and

NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS
FIRST RESPONDENT
THE INVESTIGATING DIRECTOR:
DIRECTORATE OF
SPECIAL OPERATIONS
SECOND RESPONDENT
JOHAN DU PLOOY
THIRD RESPONDENT

CORAM:
FARLAM, NUGENT, CLOETE, PONNAN et MLAMBO
JJA
HEARD:
29 AUGUST 2007

DELIVERED:
8 NOVEMBER 2007

SUMMARY:
Search and seizure – search warrant – validity of –
warrants issued in terms of s 29 of National Prosecuting
Authority Act 32 of 1989 – whether references to
suspected offences inappropriately vague.

ORDER OF COURT SET OUT IN PARA 14 IN JUDGMENT OF NUGENT JA.

Neutral citation:
This judgment may be referred to as Thint (Pty) Ltd v
National Director of Public Prosecutions [2007] SCA
136 (RSA).
______________________________________________________________

FARLAM JA

[1] This is an appeal from a judgment of Du Plessis J, sitting in the
Pretoria High Court, in which he dismissed with costs the appellant’s
application for orders (a) setting aside a search warrant issued by Ngoepe JP
in chambers in the Pretoria High Court, in terms of s 29(4) of the National
Prosecuting Authority Act 32 of 1998; (b) declaring the searches and the
seizures conducted pursuant to the warrant at the appellant’s office in Pretoria
to be unlawful; (c) directing the respondents, the National Director of Public
Prosecutions, the Investigating Director of the Directorate of Special
Operations and Mr Johan du Plooy, a senior special investigator in the
Directorate of Special Operations, to return to the appellant all items seized
during the said searches and to deliver all minor images made of computer
items seized; and (d) ordering the respondents to pay costs on the attorney
and client scale, including the cost of three counsel.

[2] The warrant which forms the subject matter of this appeal was issued
by Ngoepe JP on 12 August 2005 together with a further 21 warrants
authorising searches and seizures at other premises in Pretoria and
elsewhere in the country. The operative part of the warrant was in identical
terms to the corresponding parts of the other warrants. Attached to it were two
annexures. The first annexure contained twenty two paragraphs, the wording
of which closely followed, with the necessary adjustments, twenty two of the
paragraphs in the corresponding annexure to twenty of the other warrants
authorised on the same day.

[3] On the morning of 18 August 2005 the warrants issued by Ngoepe JP
in respect of the office of the appellant was executed by members of the
Directorate of Special Operations of the National Prosecuting Authority. At the
same time most of the other warrants authorised by Ngoepe JP were also
executed. They included a warrant in respect of the Pretoria residence of Mr
PJMR Moynot, who is a director of the appellant. The remaining warrants
were issued in respect of homes and offices or former offices of Mr Jacob
Zuma as well as the home and office of his former attorney, Ms J Mahomed,
and the office of his present attorney, Mr M Hulley

[4] Mr and Mrs Moynot were originally co-applicants in this application,
seeking orders in respect of the items seized at their residence. The
respondents conceded that the warrant issued in respect of their home was
invalid, returned the items seized and tendered to pay costs up to the date of
tender. In the circumstances, save for a preservation order in respect of a
plan of Mr and Mrs Moynot’s home, which was made by agreement, no order
was made in respect of that part of the application which related to the items
seized at the Moynots’ home and it does not figure in this appeal.

[5] On 26 August 2005 Ms Mahomed brought an application in the
Johannesburg High Court for, inter alia, relief similar to that sought by the
appellant in the present matter, which relief was granted to her on 9
September 2005 by Hussain J. Subsequently Mr Zuma and Mr Hulley
successfully brought a similar application in the Durban High Court, where
Hurt J granted them the relief they sought. The respondents in the
applications heard by Hussain J and Hurt J appealed to this court against the
orders given against them and their appeals were argued on the two days
preceding the day on which the present appeal was argued. The judgments in
those appeals are being handed down simultaneously with the judgment in
this matter.

[6] In the Mahomed appeal the appellants, who are the first two
respondents in this appeal, conceded that the warrant issued in respect of Ms
Mahomed’s home and offices and the resulting seizures effected pursuant
thereto were invalid with the result, so they stated,  that their appeal had to be
dismissed subject to a variation to the orders granted by the court a quo
providing for the preservation of the original items seized under the warrants
or copies thereof. Ms Mahomed opposed the variation sought and the appeal
was then argued solely on the issue as to whether the order granted by
Hussain J should be varied by the insertion of a preservation order.

[7] In the appeal against the order granted by Hurt J in the application
brought by Mr Zuma and Mr Hulley the appellants did not concede that the
warrants and the execution thereof were invalid but they argued in the

alternative that if they failed on the validity issue a preservation order should
nevertheless be made.

[8] For the reasons given in the judgment in the appeal relating to the
application brought by Mr Zuma and Mr Hulley, which in my view, are
applicable here, I am satisfied that the appeal against the dismissal of the
appellant’s application should succeed. I am also satisfied for the reasons set
out in that judgment that a preservation order should be made.

[9] By agreement between the parties certain documents which the
appellants’ representatives said were privileged were placed in bags which
were sealed and subsequently handed over to the registrar of the Pretoria
High Court for safekeeping. The other items which were seized were taken
away by the respondents’ representatives. During the execution of the warrant
mirror images were made of the hard drives from Mr Moynot’s laptop and the
computer of Ms N Govender, Mr Moynot’s personal assistant. Apart from the
documents in sealed bags in the custody of the registrar, the other items
seized under the warrant are in the possession of the respondents. If a
preservation order is to be made in this matter it will have to provide for the
handing over to the appellant’s representatives of items presently in the
possession of the respondents and all copies made thereof and of the
documents presently in the custody of the registrar and the preservation by
the registrar of copies of the items to be handed over by the respondents and
by him.

[10] As far as the costs order sought in the court a quo is concerned I do
not think that a case was made out for costs on the attorney and client scale
or for the costs of three, as opposed to two, counsel.

[11] In my opinion an order in the following terms should be made:
1.
The appeal is dismissed with costs including those occasioned by the
employment of two counsel.
2.
The order of the High Court is set aside and replaced by an order in the
following terms:

‘1.
The search warrant attached to the Notice of Motion as Annexure “J” is
set aside and it is declared that the searches and seizures conducted on 18
August 2005 at or in the premises referred to in Annexure “J” were unlawful.

2 (a) The respondents are ordered to hand over to the registrar forthwith all
items seized and removed from the respective premises in terms of the
aforesaid warrant (apart from items already in the custody of the registrar),
together with all copies of such items which the respondents or their agents
may have made while the items have been in their possession, irrespective of
the means by which such copies have been made or taken.

(b)
The registrar is ordered to make copies (either in person or through a
delegate) in the presence of the attorneys for the first applicant and the
respondents of all the documents seized pursuant to the warrants referred to
in paragraph 1 and to cause images of all computer materials seized pursuant
to such warrants to be made by an expert appointed by the registrar and must
hand over to the first applicant’s attorneys the originals of the documents and
the computer materials seized and all copies of such items which the
respondents or their agents may have made while the items have been in the
possession (irrespective of the means by which such copies have been made
or taken) once the copying process is complete.

(c)
The registrar is directed to retain the copies and computer images
made in terms of subparagraph (b) and to keep them accessible, safe and
intact under seal until:
(i)
notified by the respondents that the retained items or any of them may
be returned to the first applicant; or
(ii)
if proceedings are instituted pursuant to the investigation referred to in
the founding affidavit placed before Ngoepe JP when the said warrants
were authorised, the conclusion of such proceedings; or

(iii)
the date upon which the first respondent decides not to institute or to
abandon such proceedings;

whereupon the items so retained must be returned to the first applicant.

(d)
The provisions of subparagraphs (b) and (c) are subject to:
(i)
any order of any competent court (whether obtained at the instance of
the first applicant or the respondents);

(ii)
the lawful execution of any search warrant obtained in the future; or

(iii)
the duty of the registrar or representatives of the first applicant to
comply with any lawful subpoena issued in the future

(e)
The respondents must not take any step to obtain access to any of the
retained or returned items unless they give the first applicant reasonable prior
notice before any such step is taken: in particular, but without derogating from
the generality of this provision, the respondents may not take any such step
without giving the first applicant:
(i)
reasonable prior notice of any application for a search warrant or an
order directing the registrar or representatives of the first applicant to
deliver or release any retained or returned item; and

(ii)
a reasonable opportunity to challenge in court any subpoena before the
registrar or a representative of the first applicant is obliged to comply
with it.

(f)
The respondents must pay all costs of implementing the provisions of
this paragraph.

3.
The respondents are ordered to pay the first applicant’s costs in this
application, including those occasioned by the employment of two counsel.’

_______________
IG FARLAM
JUDGE OF APPEAL
CLOETE JA)
CONCUR

NUGENT JA:

[12] The material facts and issues in this case are fully set out in the
judgment of my colleague Farlam and need not be repeated. I am unable to
agree with the order that he proposes.

[13] As pointed out by my colleague the warrants that are now in issue are
not materially different to the warrants that were considered in National
Director of Public Prosecutions and Others v Zuma and Another, the judgment
in which is to be delivered simultaneously with this judgment. For the reasons
given in my judgment in that matter I am of the view that the warrants in this
case were similarly valid and that the order made by Du Plessis J was correct.
I agree with my colleague that costs on a punitive scale and the costs of three
counsel are not warranted.

[14] The appeal is dismissed with costs that include the costs occasioned
by the employment of two counsel.

__________________
R.W. NUGENT
JUDGE OF APPEAL

PONNAN JA  )
CONCUR
MLAMBO JA )

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM:
The Registrar, Supreme Court of Appeal

DATE:
8 NOVEMBER 2007

STATUS:
Immediate

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

The Supreme Court of Appeal today dismissed the appeal brought by Thint (Pty) Ltd
against an order made by Mr Justice Du Plessis in the Pretoria High Court dismissing
its application for an order setting aside the warrant issued by the Judge President of
the Transvaal Provincial Division authorising the search of its offices in Pretoria.

Appeal Judge Nugent, with whom Appeal Judges Ponnan and Mlambo agreed, stated
that for the reasons he had given in the appeal brought by the National Director of
Public Prosecutions against the order made in favour of Mr Jacob Zuma and his
attorney, Mr Michael Hulley, by Mr Justice Hurt in the Durban High Court that Thint
(Pty) Ltd’s appeal had to fail.

In a minority judgment with which Appeal Judge Cloete concurred, Appeal Judge
Farlam said that the Thint (Pty) Ltd’s appeal should succeed, for the reasons he had
given in his minority judgment in the appeal brought by the National Director of
Public Prosecutions against Mr Justice Hurt’s judgment.