THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No:   623/2009

No Precedential Significance

In the matter between:

ABRAM SELLO                                                                        Appellant

and

INSPECTOR GROBLER                                            First Respondent

INSPECTOR J CLAASEN                                      Second Respondent

MINISTER OF SAFETY & SECURITY                 Third Respondent

NATIONAL DIRECTOR OF HEALTH
MEDICINE REGULATORY AFFAIRS,
INSPECTORATE & LAW ENFORCEMENT      Fourth Respondent

Neutral citation: Sello v Grobler (623/09) [2010] ZASCA 134 (1
October 2010)

Coram:
MPATI P, LEWIS, PONNAN, CACHALIA JJA and
K PILLAY AJA

Heard:
20 August 2010
Delivered:
1 October 2010

Summary:
Search and seizure ─ unlawfulness admitted ─
whether appellant entitled to return of all seized items.

___________________________________________________________

ORDER

On appeal from: South Gauteng High Court (Johannesburg) (Jajbhay J
sitting as court of first instance):

The appeal is upheld with costs.
The order of the court below is set aside and substituted with an
order in the following terms:
‘(a)
The respondents’ searches of the applicant’s pharmacy and home
on 8 July 2008 are declared unlawful.
(b)
The respondents’ are directed forthwith to return to the applicant
all items seized pursuant to those unlawful searches that the appellant
may lawfully possess.
(c)
The respondents’ are ordered to pay the costs jointly and severally,
the one paying the other to be absolved.’
___________________________________________________________

JUDGMENT

K PILLAY AJA (Mpati P, Lewis, Ponnan and Cachalia JJA concurring)

[1] The appellant, Abram Sello, is a pharmacist and owner of Lake
Field Pharmacy, situated at shop 23, Lakefield, Benoni, Gauteng.

[2] Towards the end of June 2008 the Organised Crime Unit of the
South African Police Services, of which the first and second respondents
are members, received information from members of the Medicines
Regulatory Affairs Inspectorate (‘MRAI’) that the appellant was

suspected of selling scheduled medicines and or substances without the
necessary prescriptions.

[3] Acting on that information on 8 July 2008, the first and second
respondents, together with members of the MRAI, decided to set a trap at
the appellant’s pharmacy in accordance with the provisions of s 252A of
the Criminal Procedure Act 51 of 1977. In furtherance of the trap exercise
a female inspector, Heather Conradie, was given two marked one hundred
rand notes to purchase Stilpain and Stilnox tablets. She proceeded to the
appellant’s pharmacy where she was assisted by Thobeka Gladys
Bambisa, an employee of the appellant. Ms Bambisa supplied her with
those tablets against payment of the sum of R155 for the Stilnox and R14
for the Stilpain tablets. The tablets were schedule five drugs and despite
the fact that they required a prescription were sold by Ms Bambisa
without one. Moreover, Ms Bambisa, who was not a pharmacist, was not
permitted to dispense medication.

[4] The appellant was not in the pharmacy when the transaction was
concluded. Upon his arrival he was informed of the trap and in his
presence his pharmacy was searched by the police and inspectors of the
MRAI. The police seized various items including scheduled medicines
with blister strips and expiry dates that had been removed. In a back room
of the pharmacy a drum containing Myprodol capsules in a transparent
plastic bag were found.

[5] Andrew Colin Brandon, a risk officer, employed by Adcock
Ingram Healthcare (Pty) Ltd, arrived at the pharmacy. He identified his
company as the source of the Myprodol. According to him the capsules
are not sold in containers as found in the appellant’s pharmacy but rather,

after being processed, are placed in blue containers similar to the one
discovered in the backroom of the pharmacy. Pholconcor tablets with
batch number 080331 and Ziak tablets with batch number 0714962 were
also found. William Daniel Botha from Pharmaceutical Healthcare
Distributors identified these tablets as part of a batch which had been
stolen from their warehouse. Other items such as computers and the
appellant’s laptop were seized. The appellant and his employee, Ms
Bambisa, were then arrested. Thereafter his motor vehicle which was
parked outside the pharmacy was searched. His identity book, cheque
books, personal documents, and his house, shop and car keys were taken.
A trip to his home followed. A search there yielded more tablets in a box,
similar to the ones found in the pharmacy. From his home R114 000 cash
was taken.

[6] These common cause facts provided a backdrop for an application
launched by the appellant, in the South Gauteng High Court, for an order
declaring the searches carried out at the appellant’s home and pharmacy
on 8 July 2008 unlawful and the forthwith return of all items seized. The
application was dismissed by Jajbhay J with costs. Leave to appeal was
granted to this court.

[7] In his founding affidavit the appellant alleged that the search and
seizure operation were conducted in violation of his ‘right to privacy, his
right to trade freely and without a lawful basis’. In addition he averred
that he was at all times in ‘peaceful and undisturbed possession’ of all the
items seized.

[8] It is not disputed that in respect of the aforesaid searches the police
acted without a warrant. That is not in itself a ground for finding that the

searches and seizures were unlawful. But before us counsel for the
respondents conceded that the searches were unlawful. That was for two
reasons. First, although s 22 of the Criminal Procedure Act 51 of 1977
authorizes seizure without a warrant where a police official believes that
the delay occasioned by obtaining a warrant would defeat the object of
the search, the police advanced no grounds for such a belief. Second, the
inspectors of the MRAI had not shown that they were authorized to
conduct searches in terms of the Medicines and Related Substances
Control Act 101 of 1965. That concession so, the appellant contended,
entitled him to the return of all the items seized. As this issue was not
fully ventilated on the papers, the matter was postponed to enable the
legal representatives, after fuller consultation with the parties, to file a
schedule of those items that they agreed could be returned to the
appellant. We have since been advised that no consensus could be
reached between the parties.

[9] It is common cause that criminal proceedings against the appellant
are still pending at which some of the seized items may be required by the
State as evidence. It was not disputed that amongst the items seized were
allegedly stolen items and expired medication, some without proper
identifying details. Since the seizure certain other drugs have also
expired. All of those items obviously cannot be returned to the appellant.

[10] The appellant does not in his founding affidavit deal with his
lawful entitlement to have possessed all the items seized nor does he
allege what exactly he is lawfully entitled to have returned. Rather he
contents himself with the allegation that he was in peaceful and
undisturbed possession of the seized items. That would have sufficed had
this been a spoliation application. But it is not. It follows that we can only

order the return of those items that the appellant is lawfully entitled to
possess.

[11] In the circumstances the following order is made:
The appeal is upheld with costs.
The order of the court below is set aside and substituted with an
order in the following terms:
‘(a)
The respondents’ searches of the applicant’s pharmacy and home
on 8 July 2008 are declared unlawful.
(b)
The respondents’ are directed forthwith to return to the applicant
all items seized pursuant to those unlawful searches that the appellant
may lawfully possess.
(b)
The respondents’ are ordered to pay the costs jointly and severally,
the one paying the other to be absolved.’

___________________

K Pillay
Acting Judge of Appeal

APPEARANCES

APPELLANT:
Z Omar of Zehir Omar Attorneys, Springs
EG Cooper Majiedt Inc, Bloemfontein

RESPONDENTS:
TF Mathibedi (with him TK Manyage)
Instructed
by
State
Attorneys,
Johannesburg
State Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

1 October 2010

STATUS:
Immediate

Sello v Grobler (623/09) [2010] ZASCA 134 (1 October 2010)

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.

Today the SCA upheld an appeal by the appellant, a pharmacist, against an order of
the South Gauteng High Court dismissing an application to declare a search and
seizure operation conducted at his pharmacy and home in Benoni, Gauteng, unlawful.

The search and seizure exercise was a joint operation between members of the
Organised Crime Unit of the South African Police Service and the members of the
Medical Regulatory Affairs Inspectorate. The items seized during the search included
items allegedly stolen, expired medicines and other medicines which had no proper
identifying details.

The respondents conceded during argument that the search was unlawful. The only
issue the SCA had to decide was which items the appellant was lawfully entitled to
have returned to him.

The SCA held that, since the appellant did not set out in his founding affidavit the
items he was entitled to have returned to him, the court could order the return, to him,
of only those items he was lawfully entitled to possess.