THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No:  494/06
REPORTABLE
In the matter between:

ALLAN LE ROUX                                                             FIRST APPELLANT
GERHARDUS VERMAAK                                         SECOND APPELLANT
PIETER JAN BENNETT VAN DER GRIJP                THIRD APPELLANT
CASPIAN FINANCIAL SERVICES (PTY) LTD     FOURTH APPELLANT

and

THE HONOURABLE MAGISTRATE MR VIANA  FIRST RESPONDENT
JOHN LOUIS CARTER FOURIE NO                    SECOND RESPONDENT
JOSHUA MUTHANYI NO                                          THIRD RESPONDENT
MARIA ELIZABETH APPEL NO                          FOURTH RESPONDENT
ELIZABETH MARGARET EDWARDS NO             FIFTH RESPONDENT

Coram:
Navsa, Nugent, Jafta, Mlambo JJA et Kgomo AJA

Heard:
22 November 2007

Delivered: 30 November 2007

Summary:
Warrants – whether s 69(3) excludes ‘books and documents’ in electronic form
in the possession of a third party.

Neutral citation:
This judgment may be referred to as Le Roux v Hon Magistrate Mr
Viana [2007] SCA 173 (RSA).
________________________________________________________________

MLAMBO JA

[1] This is an appeal from a decision of Boruchowitz J in the Johannesburg
High Court dismissing a review application in which the appellants sought to set
aside a warrant issued by the first respondent, a magistrate, in terms of s 69(3) of
the Insolvency Act 24 of 1936. The appeal is with the leave of the high court.

[2] Condonation was sought by the appellant for the late filing of their heads
of argument and practice note. Condonation is granted.

[3] The first appellant is a director of the fourth appellant, Caspian Financial
Services (Pty) Ltd (Caspian), and is a former director of Herlan Edmunds
Engineering (Pty) Limited and Herlan Investment Holdings Limited (the
companies in liquidation). The second and third appellants are also former
directors of these companies. Caspian was at least partly responsible for the
administration of the financial affairs of amongst others the companies in
liquidation.

[4] The other respondents who are the joint liquidators of the companies in
liquidation applied in terms of s 69(2) for the warrant authorising the sheriff to
attach, remove and hand over to them all books, documents and movables
belonging to the companies in liquidation contained in a computer hard drive
belonging to Caspian.

[5] Section 69(3) provides:

‘(3)
If it appears to a magistrate to whom such application is made, from a statement made
upon oath, that there are reasonable grounds for suspecting that any property, book or
document belonging to an insolvent estate is concealed upon any person, or at any place or
upon or in any vehicle or vessel or receptacle of whatever nature, or is otherwise unlawfully

withheld from the trustee concerned, within the area of the magistrate’s jurisdiction, he may
issue a warrant to search for and take possession of that property, book or document.’
[6] One of the issues raised in the appeal is whether the books and documents
belonging to the companies in liquidation and recorded on the hard drive can be
regarded as those contemplated in s 69 and therefore susceptible to seizure in
terms of that section. The point made in this regard is that if it is correct that the
books and documents recorded on the hard drive, even though they belong to the
companies in liquidation, are not in the form contemplated in the section, they are
therefore not susceptible to seizure in terms of that section and the warrant is
invalid on that basis.

[7] Counsel for the appellants submitted that properly construed s 69 does not
contemplate the seizure of property, the ownership of which rests in a party other
than the insolvent estate and that the section cannot be invoked for the purpose of
seizing information relating to the insolvent estate in circumstances in which that
information is not recorded in paper or tangible form. Reduced to its essence this
submission is that the hard drive and the books and documents of the companies
in liquidation recorded therein are beyond the ambit of s 69. Counsel submitted
further that because the books and documents were contained in the hard drive of
Caspian an innocent third party, they were not susceptible to seizure in terms of s
69(3). It was submitted that s 69(3) should be restrictively interpreted.

[8] Clearly the primary object of s 69(3) is ‘to enable a trustee to collect and
take control of assets reasonably believed to belong to an insolvent estate which
are being concealed or withheld’. This section is obviously intended to
‘strengthen the hand of a trustee in carrying out the obligation to take charge of
all the assets belonging to an insolvent estate’. Cooper NO v First National Bank
of SA Ltd 2001 (3) SA 705 (SCA) at 713B-E.

[9] The objective of s 69(3) contemplates nothing less than the seizure of
property, books and documents relating to the insolvent estate wherever they may
be. In this case the target of the warrant was the books and documents of the
companies in liquidation contained on Caspian’s hard drive. A reading of the
warrant lists all that was to be seized consisting of financial, accounting and
investment documents and records relating to the companies in liquidation. It is
incorrect, as submitted on behalf of the appellants, that the objective of the
warrant was the seizure of the hard drive. The magistrate was clearly alive to the
fact that the hard drive did not belong to the companies in liquidation and that it
also contained information relating to innocent third parties. Hence the warrant is
couched in terms respecting the confidentiality of the other information on the
hard drive and does not countenance the deputy sheriff having access to it.

[10] Furthermore, properly construed the reference to books and documents in
s 69(3) has nothing to do with the form in which those books and documents are.
The Concise Oxford English Dictionary (10th edition revised) defines a book as ‘a
set of records or accounts or the embodiment of a record of commercial
transactions’ and a document as ‘a piece of written, printed or electronic matter
that provides information or evidence or that serves as an official record’. That
these definitions accord with what the section contemplates cannot be disputed.
They also fit in with the context within which one must view the role and
functions of a trustee in the scheme of the Insolvency Act. There is no dispute in
this case that the books and documents stored on the hard drive and targeted by
the warrant relate to the financial and business affairs of the companies in
liquidation. That being the case those books and documents, irrespective of the
form they are in, are clearly within the contemplation of s 69 and are susceptible
to seizure under a warrant in terms of that section. It can hardly be suggested, as
counsel for the appellants submitted, that we should not take judicial notice of the
technological advancements regarding electronic data creation, recording and

storage because this was unheard of in 1936 when the Insolvency Act was
passed.1 For these reasons the warrant is beyond reproach.

[11] This being the view I take on this issue the appeal must fail. This renders it
unnecessary to consider the other issue raised in the appeal save to comment that
judicial officers, judges in particular, have for a long time been approached to
authorise warrants. It will be more productive I suggest that, rather than seeking
to determine in what capacity the judge was acting when he issued a warrant, the
issue must be to determine whether the warrant was lawfully authorised. Courts
have for many years set aside unlawfully issued warrants and it does not matter
whether one brands the action of issuing such a warrant as judicial or
administrative. The focal issue should always be the lawfulness of the warrant.
See Pullen NO v Waja 1929 TPD 838 at 846; Ex Parte Hull (1891) 4 SAR 134;
Divisional Commissioner of SA Police, Witwatersrand Area v SA Associated
Newspapers Ltd 1966 (2) SA (A); Powell NO v Van der Merwe NO 2005 (5) SA
62 (SCA) at 80F to 85F and many others.

[12] In the circumstances the following order is granted:

The appeal is dismissed with costs including the costs consequent upon the
employment of two counsel.

1See also ss 12 and 17 of the Electronic Communications and Transactions Act 25 of 2002 which provide:
‘12.  Writing
A requirement in law that a document or information must be in writing is met if the document or information is –
(a)
in the form of a data message; and
(b)
accessible in a manner usable for subsequent reference.

17.  Production of document or information
(1)
Subject to section 28, where a law requires a person to produce a document or information, that
requirement is met if the person produces, by means of a data message, an electronic form of that
document or information, . . .’

________________
D MLAMBO
JUDGE OF APPEAL

CONCUR:
NAVSA JA
NUGENT JA
JAFTA JA
KGOMO AJA

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:
30 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.

A LE ROUX v  THE HON MAGISTRATE MR VIANA

1.
The Supreme Court of Appeal today dismissed an appeal against a
decision of the Johannesburg High Court upholding a warrant issued by
a magistrate in terms of s 69(3) of the Insolvency Act.

2.
The warrant was issued authorising a sheriff to attach the books and
documents relating to two companies in liquidation. As these books and
documents were in electronic rather than tangible form and were
recorded in a computer hard drive of a third party (a financial services
company) the appellant contended that they were not contemplated by
the section and that the warrant was therefore invalid.

3.
The SCA found that the objective of s 69(3) was to enable a trustee of an
insolvent estate to fulfil his responsibilities in terms of the Act.
Furthermore the SCA further found that in this case the warrant was not
targeted at the hard drive and that the section contemplated all books
and documents wherever and in whatever form they were. In view of this
the SCA found that the warrant was beyond reproach.