THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT
Reportable
Case No: 1182/2018

In the matter between:

NEIL MALHERBE

APPELLANT

and

THE STATE
RESPONDENT

Neutral citation: Malherbe
v
S
(1182/2018)
[2019] ZASCA
(29 November 2019)

Coram:
Wallis, Mbha and Mbatha JJA and Koen and Hughes AJJA

Heard:

19 November 2019

Delivered:
29 November 2019

Summary: Search warrant in terms of s 21(1)(a) of the Criminal Procedure Act 51
of 1977 – must be issued on the basis of information on oath – statement on basis of
which warrant issued not sworn – warrant invalid – items seized under warrant
inadmissible – admissions made after warrant ruled to be valid – such compelled by
the decision that the warrant was valid – breach of fair trial rights in terms of s 35 of
the Constitution.

____________________________________________________________________
ORDER
____________________________________________________________________
On appeal from: Gauteng Divison of the High Court, Mpumulanga Circuit Court
(Mudau J and Roelofse AJ, sitting as a court of appeal from the Regional Court,
Nelspruit):
The appeal succeeds and the convictions and sentence are set aside, including the order
in terms of s 120(4) of the Children’s Act 38 of 2005.

JUDGMENT
_______________________________________________________________________________

Mbatha JA (Wallis and Mbha JJA and Koen and Hughes AJJA concurring):
[1] The appellant, Neil Malherbe, was arraigned in the Regional Court, Nelspruit,
Mpumalanga, on seven counts of contravening s 24B(1)(a) and one count of
contravening s 24B(1)(c) of the Films and Publication Act 65 of 1996 (the Act). Four
of these counts related to the possession of four films and one to the importation of
another film. The sixth count related to his possession of a book, the seventh to senteen
images discovered on his laptop and the last to five images found on his notebook.
Each of the films, the book and the images were said to constitute depictions of child
pornography, an expression that is broadly defined in s 1 of the Act. All of these items
had been seized pursuant to a search warrant inrespect of Mr Malherbe’s home issued
by a magistrate, Mr Oosthuizen. Mr Malherbe tendered a plea of not guilty to all
counts.

[2] The trial commenced with a trial within a trial in which the appellant challenged
the validity of the search warrant. The trial court ruled against the appellant by finding

that the search warrant was validly obtained. He thereafter made admissions in terms
of s 220 of the Criminal Procedure Act (CPA) wherein he admitted being found in
possession of three images of child pornography in counts 3, 7 and 8, of which one
was from the movie ‘Barnens Ö: Children’s Island’, purchased from an online
company called Amazon. He was convicted of counts 3, 7 and 8 and was accordingly
sentenced on 27 October 2017 to three months’ imprisonment in respect of each count.
The sentences were wholly suspended for a period of 3 years on condition that the
appellant was not to be convicted of contravening  s 24B(1)(a) of the Act, during the
period of the 3 years suspension. The court, as it was obliged to do, made an order in
terms of s 120(4) of the Children’s Act 38 of 2005, that the appellant was found
unsuitable to work with children and ordered his name to be entered into Part B of
The National Child Protection Register. In accordance with s 34 of the CPA, the
images were forfeited to the state to be destroyed. The appellant’s application for leave
to appeal was dismissed. On petition in terms of s 309 of the CPA, he was granted
leave to appeal against both the conviction and sentence.

[3] The appeal to the Gauteng Division of the High Court, sitting as the
Mpumalanga Circuit Court, against both the conviction and sentence failed. The high
court set aside the sentence imposed by the regional court and remitted the matter to
the regional court for reconsideration of the sentence in the light of the comments
made in the judgment by the full bench. With special leave of this court, the appeal
against both conviction and sentence serves before this court.

[4] There were significant problems with Mr Malherbe’s conviction on both count
3 and count 8. The former related to the possession of a film. It was unclear from the
charge sheet whether he was in fact, being charged with the possession of a film that

had not been rated by the Film and Publication Board, a matter which no evidence
was presented. Furthermore, the conviction was not in relation to the film, but to a
single image from the film. Count 8 was based on one of two images found on his
laptop, whereas the charge sheet on that count related to other images found on his
notebook. The evidence did not support a conviction on this count. The two images
from the laptop could at best have supported the conviction on count 7, which was
based on images found on his laptop. However, in view of the conclusion I have
reached on the validity of the search warrant, it is unnecessary to consider these issues
any further. Nor is it necessary to consider whether the definition of ‘child
pornography’ in the Act can withstand constitutional scrutiny.

[5] The crisp issue was whether the trial court was correct in holding that the search
warrant issued in terms of s 20 and 211 of the CPA were valid. The appellant

1 Section 20: 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.
Section 21: (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.
(3) (a) A search warrant shall be executed by day, unless the person issuing the warrant in writing authorizes the
execution thereof by night.
(b) A search warrant may be issued on any day and shall be of force until it is available, by a person with like authority.
(4) A police official executing a warrant under this section or section 25 shall, after such execution, 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.

challenged the validity of the search and seizure warrant at the outset of the trial. After
the trial within the trial, the learned magistrate found that there was substantial
compliance with the provisions of s 20 and 21 of the CPA. The appellant then made
certain admissions in terms of s 220 and the State closed its case without leading any
further evidence. Upon that basis he was convicted and sentenced.

[6] The provisions of s 21(1)(a) authorises magistrates and justices of peace to issue
search warrant. Furthermore, the application therefore must be made on the basis of
information on oath. In Thint (Pty) Ltd v National Director of Public Prosecutions &
Others; Zuma & Another v National Director of Public Prosecutions & Others2 the
Constitutional Court held that certain jurisdictional factors also need to be met ‘first,
that there is a reasonable suspicion that an offence, which might be a specified offence in terms of
the CPA, has been committed; and secondly, that there are reasonable grounds to believe that an
item that has a bearing or might have a bearing on the investigation is on or is suspected to be on the
premises to be searched. Finally, the judicial officer must consider whether it is appropriate to issue
a search warrant’.

[7] The fundamental problem in this case is that the trial court misdirected itself by
accepting Captain Swart’s statement as a sworn statement. In lieu of the oath, it merely
recorded that ‘I hereby certify that the deponent knows and understands the contents
of this statement and that the deponent’s signature was placed here in my presence on
2013.07.12 at 10:20 White River’. This breached the specific requirement of
s 21(1)(a) of the CPA that the information must be on oath and that there must be
reasonable grounds for believing that the item is in the possession or under the control
of any person. Captain Swart testified that even when he appeared before Mr

2 Thint (Pty) Ltd v National Director of Public Prosecutions & Others; Zuma & Another v National Director of Public
Prosecutions & Others 2008 (2) SACR 421 (CC); 2009 (1) SA 1 (CC); 2008 (12) BCLR 1197 (CC) para 85.

Oosthuizen, no oath was administered to him. Mr Oosthuizen also confirmed that he
did not administer the oath nor did he make any further enquiries from Captain Swart
regarding the information relied upon by the police.

[8] The law requires strict adherence to the requirements of s 21(1)(a) of the CPA.
This is clear from the authorities. A search warrant issued on the basis of an unattested
statement is invalid.3 If the search warrant is issued on the basis of both a sworn
statement and an examination of the police docket containing unsworn documents it
is likewise invalid.4 In similar vein, where evidence is required to be given under oath
in terms of s 162 of the CPA, the testimony of a witness who has not sworn to the
truth of the evidence, or made a proper affirmation, or been properly admonished to
speak the truth, as provided for in the CPA ‘lacks the status and character of evidence
and is inadmissible’.5

[9] The magistrate should have held that the search warrant was issued unlawfully
and was invalid. On that basis none of the material seized under the warrant would
have been admissible. It was the failure of the trial court to declare the warrant invalid,
which induced the appellant to make admissions in terms of s 220 of the CPA.
Furthermore, the admissions were insufficient to justify a conviction. They were an
admission that there were three images, one taken from the movie, ‘Barnens Ö:
Children’s Island’, and the two others downloaded from the internet to the appellant’s
laptop. It was admitted without reference to the Act, or the definition of this
expression, that these three images displayed scenes amounting to child pornography
of persons under the age of 18 years. The latter was at best for the prosecution an

3 Tioch v The Magistrate, Riversdale and others [2007] 4 All SA 1064 (C).
4 Naidoo and another v Minister of Law and Order and another 1990 (2) SA 158 (W) at 160B-H.
5 S v Matshivha [2013] ZASCA 124 (SCA) para 10; 2014 (1) SACR 29 (SCA); S v Naidoo 1962 (2) SA 625 (A).

admission of a matter of law. In addition, those admissions did not show that the
appellant had the requisite mens rea, which entails knowledge of possession and of
unlawfulness of his possession.

[10] Section  35(5) of the Constitution provides that evidence obtained in a manner
that violates the Bill of Rights must be excluded if the admission of that evidence
would render the trial unfair or otherwise be detrimental to the administration of
justice. In this case there can be no doubt that the decision that the search warrant was
valid and that the items seized from Mr Malherbe’s home were lawfully seized
compelled the making of the admissions. Therefore, the evidence obtained through
the invalid search warrant rendered the trial unfair and should have been excluded.
Anything done pursuant thereto was unlawful.

[11] The appeal succeeds and the convictions and sentence are set aside, including
the order in terms of s 120(4) of the Children’s Act 38 of 2005.

_______________
Y T Mbatha
Judge of Appeal

Appearances
For the Appellants:
M R Hellens SC (with him N Ferreira)

Instructed by:
Richard Spoor Inc. Attorneys, White River

Webbers Attorneys, Bloemfontein

For the Respondent:
A I S Poodhun
Instructed by:
Director of Public Prosecutions, Mbombela