CIV/APN/473

 

 

IN THE HIGH COURT OF LESOTHO

 

In the matter between:

 

LIQHOBONG MINING DEVELOPMENT CO.                 1^st APPLICANT

KEKETSO KEPA                                                                 2^nd APPLICANT

HENDRICK JACOBUS FOURIE                                        3^rd APPLICANT

FRANCOIS ROOS                                                                4^TH APPLICANT

 

AND

 

COMMISSIONER OF POLICE                                           1^st RESPONDENT

THE CHIEF MAGISTRATE MASERU                                        2^nd RESPONDENT

 

 

JUDGMENT

 

Coram                  :         Hon. Majara J.

Date of hearing     :         11^th February 2013

Date of judgment  :         26^th March 2013

 

Summary

Application for declarator that search warrants issued by the 2^nd respondent are unlawful and invalid, and for respondents to be ordered to release to applicants all the material that was seized in terms of the warrants  – whether application urgent – whether information placed before 2^nd respondent adequate to justify the issuing of  search warrants – applicants failed to establish urgency – information placed before 2^nd respondent insufficient – application granted with costs.

 

ANNOTATIONS

 

STATUTES

1.     Criminal Procedure and Evidence Act No. 9 of 1981

2.     National Prosecuting Authority Act No32 of 1998

 

CASES

1.     Moosa and Others v the Magistrate and Others LAC (2007-2008) 318

2.     Powell N O and Others v Van der Merwe N O and Others 2005 (5) SA 62 (SCA) at 85 C-F

3.     Plascon-Evans Paints (Pty) Ltd v Van Reibeeck 1984 (3) SA 623

4.     Jackpot Supermarket & Another  CIV/APN/424/2011 (unreported)

5.     Thint (Pty) v National Director of Public Prosecutions and Others; Zuma and Another v National Director of Public Prosecutions and Others 2008 SACR 412 (CC)

 

[1]     The present application was launched on an urgent basis for relief as follows:

1.     Condonation be granted to the applicant for non-compliance with the Rules of Court pertaining to service and time limits;

2.     The search warrants authorized on the 15^th January 2013 issued in respect of the 2^nd, 3^rd and 4^th applicants be declared unlawful and invalid and be set aside;

3.     The search of the applicants’ premises and/or property be declared invalid, unlawful and be set aside;

4.     The respondents be directed to release from seizure and/or attachment the property of the applicants described in the founding affidavit.

[2]     The applicants also pray for costs of the application on the scale as between attorney and client as well as for further and/or alternative relief.  The application is opposed.

[3]     In terms of the founding affidavit deposed to by one Gerhard Van Niekerk who describes himself as the general manager of the 1^st applicant company, on the 16^th January 2013, eight men and one woman who were dressed in the Lesotho Mounted Police Service (LMPS) uniform raided and searched the 2^nd applicant’s house situated at Ha Hoohlo Maseru and seized electronic equipment belonging to the 1^st and 2^nd applicants.

[4]     The deponent adds that one Inspector Mafatle showed the 2^nd applicant a search warrant which the latter read and asked for a copy of but the Inspector refused the request. Though the 2^nd applicant cannot remember the exact wording of the search warrant, she remembers that it authorized officers of the LMPS to search and seize diamonds and computer devices.

[5]     It is the deponent’s further assertion that when the said officers saw the 2^nd applicant’s laptop on a table, they immediately seized it and further searched the house and seized the 2^nd applicant’s property namely, two (2) Nokia cell phones, a Blackberry cell phone, a Vodacom Modem, a memory stick, seven (7) flash discs, a compact disc, a Dell laptop computer, its charger and a Vodacom modem belonging to the 1^st applicant (LMDC).  They further searched the 2^nd applicant’s vehicle but did not seize anything.  Further that the officers did not prepare a return of service and/or inventory of the equipment they seized.

[6]     The deponent to the founding affidavit also avers that on the same morning, members of the LMPS who did not identify themselves searched the Management living quarters of LMDC at its lease area situated at Liqhobong in the district of Butha-Buthe on the basis of search warrants they had in respect of the 3^rd and 4^th applicant.

[7]     He adds that when the 3rd and 4^th applicant went out to meet the senior security officer of LMDC per the latter’s telephonic request they met officers of the LMPS some of whom were dressed in camouflage uniform while the others wore civilian clothes.  The officers informed them that they were in possession of search warrants to search their living quarters for stolen diamonds and electronic equipment whereupon they proceeded to conduct a search in a similar fashion as the one at the 2^nd applicant’s premises.

[8]     The deponent avers that Superintendent Mosili who was in charge of the operation only showed the warrants to the 3^rd and 4^th applicants but never handed them and or copies to them.  Upon making enquiries why they had to be searched the applicants were informed that they were being investigated for fraud, diamond theft, racketeering and money laundering.  The 4^th applicant’s cell phone was also seized. A list of the equipment that was seized at the said premises appears in paragraphs 15 and 16 of the founding affidavit and it is also averred that an inventory of the seized goods was not prepared.

[9]     It is the case of the applicant that post the search they gave instructions to their lawyers and when the latter went to the Magistrate Court and requested to be given copies of the search warrants, they were told that they had been uplifted and were not available.  The above assertions are supported by the 2^nd, 3^rd and 4^th applicant respectively.

[10]   The respondents oppose the application and the answering affidavit is deposed to by Superintendent Sello Mosili a member of LMPS who also avers that he is the investigating officer in the matter concerning all the applicants and the deponent to the founding affidavit.

[11]   He admits that they i.e. officials of the LMPS did conduct a search at the 1^st and 2^nd applicant’s premises but disputes that the property they seized does not belong to the 1^st respondent because, so he avers, she ‘professed that they belonged to her’ after she had read the search warrant in whole.  He also disputes the assertion that the 2^nd applicant was denied permission to make a call on her cell phone.  The deponent further disputes that they did not prepare any inventory, and asserts that Inspector Mafatle did prepare one namely, annexure ‘SM2’.

[12]   He adds that he and the others did identify themselves before the searches and that he also gave his ID to the security personnel who in turn led them to the 3^rd and 4^th applicants to whom they also introduced themselves and gave the reason of their visit.  Further that the 3^rd and 4^th applicants read the search warrants and allowed the officers to search the house and their vehicles from which they i.e. the said applicants took out some items and gave them to the police officers. 

[13]   It is against this backdrop that the applicants approached this Court for relief. The crux of their case is that there was no factual basis disclosed in the affidavit upon which the 2^nd respondent could have concluded that there was a reasonable suspicion that an offence had been committed or that there were reasonable grounds for believing that the electronic equipment was in any way connected with the alleged crimes of money laundering and illegal possession of diamonds.

[14]   It is their submission that the search warrants are therefore unlawful and stand to be set aside and that in the result any evidence obtained by the LMPS during the search and seizure operations on the strength thereof is inadmissible.  Further that the LMPS invaded the applicants’ right to privacy and despoiled them of their property whose restoration they are entitled to.  They add that the procedure followed during the execution of the warrants is unlawful and against the rule of law and the common law.

[15]   It is also the contention of the applicants that this matter is extremely urgent for the reason that the laptop that was seized from the 2^nd applicant contains the payroll information of all the 1^st applicant’s employees and that it is needed to process their monthly salaries.  Further that the laptop contains amongst others, information on the 1^st applicant’s diamond production, the plant construction, feasibility studies conducted and a diamond management program which the 3^rd applicant needs in order to manage the monitoring and regulation of the production management of the 1^st applicant’s operations and that the respondents’ actions have basically grinded the 1^st applicant’s operations to a halt.

[16]   The deponent to the answering affidavit responded to these contentions and submissions specifically at paragraph 16 thereof.  However, on the day of the application, Counsel for the respondents moved an application to strike out the same paragraph on the grounds that it constitutes hearsay evidence.  The paragraph reads as follows in relevant parts:-

“In addition to the affidavit Inspector Makharilele appeared before the judicial officer and gave evidence and information verbatim to the magistrate to the effect that one officer Lebenya Mokheseng from Ministry of Mining happened to be in the applicants’ mine for some inspections, where he discovered that the security men we (sic) precluded from reaching a certain area where diamond verification was done.  Procedurally security must be there to guard against theft of diamonds.  Further he discovered that when diamonds were counted they did not fall (sic)with the records available. The applicants were not able to account for the shortage. All this Inspector Makharilele informed the court.”

 

[17]   In connection with this submission, Adv. Sekati who appeared on behalf of the respondents made the contention that the averments were not hearsay because the deponent to the answering affidavit was present in Court when they were made. 

In my opinion for the reason that the deponent does not unequivocally state that he was present during those proceedings when these assertions were made and in the absence of any supporting affidavit from the said Inspector Makharilele, I came to a finding that the said assertions were indeed hearsay.  I further found that the contentions of Counsel for the respondents in this regard constituted evidence from the bar which is also inadmissible.

[18]   I might also add that no explanation and/or reason were given why the Inspector in question did not file a supporting affidavit more so on such crucial information.  I accordingly granted the application to strike out the said paragraph.  This effectively means that the only information that was left for my considerations aside from the averments in the papers is that contained in the affidavits filed in support of the application for the search warrants.

[19]   Coming back to the main application, it is also the case of the respondents that the affidavits filed in support of the application for the search warrants, tell the 2^nd respondent that Inspector Makharilele has information that the 2^nd, 3^rd and 4^th applicants are in illegal possession of diamonds.  The deponent to the answering affidavit adds that the affidavit, annexure ‘SM5’ is very elaborate and clear that as a result of the illegal activities of the applicants, the electronic devices contain evidence.  Further that the search warrants are lawful and the evidence obtained as a result of the search and seizure will be admissible in a criminal court.

[20]   With respect to the contention that the application is urgent, the respondents aver that at the time it was launched the operation had taken place about twenty days earlier during which time the applicants did nothing yet they come before the Court after all that time and claim urgency.  The deponent to the answering affidavit also contends that they i.e. the LMPS officials, left a desktop computer which was said to belong to the mine and contains logistical information thereof including the 1^st applicant’s payrolls.

[21]   Further that as the applicants correctly aver, the information in the seized laptop relating to inter alia, the production of diamonds will be compared with what the mine gives to the Government of Lesotho.  He also disputes that the mine’s operations have come to a halt.  He reiterates that the respondents’ actions are not unlawful and that they need the opportunity to finalise their investigations so that the law can take its course.

[22]   It is on the basis of these facts that there are basically two issues for determination by this Court namely, whether or not the matter was urgent and whether or not the search warrants were unlawful for want of adequate information that was placed before the 2^nd respondent.

[23]   I find it convenient to deal first with the issue whether or not the applicants have successfully established that the matter is urgent.

[24]   In this regard, Counsel for the applicants made the submission that while they admit that the applicants approached this Court after a lapse of twenty days since the search and seizure, this is because they were still investigating the circumstances that led to the granting of the search warrants to no avail as they were told that the affidavits had been uplifted.

[25]   In turn, Counsel for the respondents made the submission that nothing stopped the applicants from seeking relief from the Court even assuming that their assertions might be true.  In this regard, I am inclined to accept the submission that the said investigations was nor reason to stop the applicants from approaching the Court for relief on the basis of the reasons for approaching the Court on an urgent basis in the founding affidavit to the notice of motion.   The reasons stated therein are different to what their Counsel told the Court as nothing is said therein with respect to the applicants having had to carry out their own investigations first.

[26]   I have shown that the deponent to the founding affidavit made the assertion that the matter is urgent because the seized laptop contains information that is vital to the operations of the mine.  It is my view that the issue of investigating how the search warrants were obtained has nothing to do with these reasons.  If operations of the, mine came to a halt because of the seizure necessitating the court’s intervention that would be so regardless of what the applicants’ investigations revealed. 

[27]   As a matter of fact, what the applicants seem to be suggesting is that they would only approach the Court if they were not convinced that the search warrants were issued on the basis of sufficient information and not because their operations were negatively affected which would justify them coming to Court urgently otherwise they would not be afforded substantial relief in due course if they were to follow the normal modes and periods of service stipulated by the Rules of this Court. I accordingly find that this point was well taken by the respondents.

[28]   I now proceed to deal with the issue whether or not the respondents failed to satisfy the requirements of [1]  on the strength of the affidavits filed in support of the application for the search warrant.  The section reads as follows in parts and insofar as is relevant to this issue:-

“If it appears to a judicial officer on complaint made on oath that there are reasonable grounds for suspecting that there is upon any person or upon or at any premises or other place or upon or in any vehicle or receptacle within his jurisdiction –

…. …. …. ….;

anything as to which are reasonable grounds for believing that it will afford evidence as to the commission of any offence; or

…. …. …. ….;

he may issue a warrant directing a policeman named therein or all policemen to search any such person, premises, other place, vehicle or receptacle, and to seize any such thing if found, and to take it before a magistrate to be dealt with according to law.”

 

[29]   Ex facie, there is nothing untoward with respect to the search warrants that are the subject matter of this application and their contents in terms of the requirements as they are spelt out under section 46.   However, in terms of the founding affidavit, the applicants herein challenge their lawfulness and legality on the basis that the affidavits in support thereof did not place adequate information before the 2^nd respondent which would provide an objective basis to justify the issuing of the search warrants.  It is common cause that the affidavits are more or less the same.  For illustration one of them namely, Annexure “E” reads as follows in relevant parts:-

“I aver further that I have strong information which I in good faith belief it to be reasonable that one Kepe Kepe is in possession of illegal diamonds and electronic evidence such as, lap tops/desk top, flash disks, external hard drives, digital cameras or any storage media at her residence at Maseru ha Hooho.”

 

[30]   It is on this basis that the search warrant SM 1 was issued by the 2^nd respondent. Insofar as the affidavit deposed to by Superintendent Mosili in support of the other search warrant, i.e. SM 5 is concerned, it also contains a similar paragraph as the one quoted immediately above safe that it refers to the possession of similar evidence by ‘Keke Kepe, Genera Mger Van Niekerk, (sic)Molefi Lehlora, Francois Roof and Tass Fourie at their residence and offices at Liqhobong’.

[31]   In this regard, it is the applicants’ case that officials applying for a warrant have to place before the judicial officer adequate and objective basis to justify the issue of the warrant.  In terms of paragraph 23 of the founding affidavit, the deponent contends as follows in relevant parts:-

“This entails at least that he/she should show that the surmise is not fanciful, but grounded in fact, based on sound evidence and that other persons in the same position, considering the facts and available evidence available and that other persons in the same position, considering the facts and available evidence, will conclude that surmise (sic)in question is not farfetched, misguided or patently mistaken.  In assessing whether the suspicion is reasonable, the Court issuing a warrant is required to bear in mind that the provision sought to be invoked authorize (sic)drastic action.”

 

[32]   The applicants add that there is absolutely no factual basis disclosed in the affidavits upon which the 2^nd respondent could have concluded that there was a reasonable suspicion that an offence had been committed or that there were reasonable grounds for believing that the laptops etc, were in anyway connected with the alleged crimes of money laundering and illegal possession of diamonds.

[33]   It was also submitted on behalf of the applicants that it is not enough for a police officer to say that he has strong information without putting adequate information before the judicial officer which would disclose an objective basis to justify the issue of the warrant.  To this end, Counsel for the applicants referred the Court to a plethora of authorities particularly the decision in the case of Moosa and Others v The Magistrate and Others [2] in which the Court of Appeal relied by and large on the South African case of Powell N.O. and Others v Van der Merwe and Others  [3].

[34]   The applicants also challenged the lawfulness of the search warrants issued in respect of the 3^rd and 4^th applicants on the ground that they were directed against some other persons and not them as the names that appeared therein respectively were not theirs.

[35]   The respondents disputed the applicants’ averments in connection with the above last point and contended per the contents of the answering affidavit and in their submissions that both applicants were known and properly named in the search warrants and that upon their arrival at the premises they both respectively admitted that they were the persons named in those warrants.  Counsel for the respondents added that on the strength of the rule in Plascon,  Plascon-Evans Paints (Pty) Ltd v Van Reibeeck[4] the Court has to admit the version of the respondents in this regard as the correct one.

[36]   It was added that alternatively, if I were to find that indeed the search warrants were not issued against the 3^rd and 4^th applicants, then Superintendent Mosili still had the powers to conduct a search in terms of Section 47 of the CP&E.

[37]   At this stage I find it convenient to deal with this last point and state without ado that in keeping with the rule in Plascon-Evans  (supra) where there is a dispute of facts in the affidavits the Courtshould have regard to the admitted facts together with the respondents’ version, which it should assume as correct these being motion proceedings.  The respondents’ version is that the applicants in question admitted that they were the persons identified therein.  Bearing this trite rule in mind, I accordingly accept the respondents’ version that the 3^rd and 4^th respondents are the persons whose names appear on the search warrant.  This effectively puts this particular issue to rest. 

[38]   On the submission that when moving the application before the 2^nd respondent the police officer did not place sufficient evidence before the court justifying the granting of the application for the issuance of the search warrants, Counsel for the respondents stated that the affidavits placed before the Court clearly and concisely show that the applicants therein that is, the police officers, had information they believed to be true that the diamond theft and money laundering was taking place.  He added that the information to be placed before the Court at that stage must be on a balance of probabilities.

[39]   On this aspect, it is trite that in its determination whether a search warrant is valid or not the Court has to go a step further than look at the statutory provision that authorizes the procedure and consider several other factors.  In the case of Moosa (supra) the learned Gauntlet JA summarized factors that have to be considered by the Court in the following terms:-

“(a) Because of the great danger of misuse in the exercise of authority under search warrants, the courts examine their validity with a jealous regard for the liberty of the subject and his or her rights to privacy and property.

(b) This applies to both the authority under which a warrant is issued, and the ambit of its terms.

(c) The terms of a search warrant must be construed with reasonable strictness. Ordinarily there is no reason why it should be read otherwise than in the terms in which it is expressed.

(d) A warrant must convey intelligibly to both searcher and searched the ambit of the search it authorizes.

(e) If a warrant is too general, or if its terms go beyond those the authorizing statute permits, the courts will refuse to recognize it as valid, and will set it aside.

(f) It is no cure for an overbroad warrant to say that the subject of the search knew or ought to have known what was being looked for: The warrant must itself specify its object, and must do so intelligibly and narrowly within the bounds of the empowering statute.”

 

[40]   Currently, this is the position of the law in Lesotho.  The learned Judge added that in determining the validity or otherwise of a search warrant, each case must be dealt with according to its own merits and circumstances.  Having said this, it is my view that at closer scrutiny, the search warrants in casu, are broad for the reason that they read as follows in relevant parts:-

“WHERE AS it appears to me (sic)information taken on oath that the following Evidence:

DIAMONDS AND ELECTORNIC EVIDENCE” 

[41]   However, it should be remembered that the above case as well as other authorities have also laid down that in its determination of these questions, the Court should not confine itself to the search warrant and its contents as it is permissible to also look at the affidavit filed in support thereof in order to determine whether it was clear and detailed enough to adequately inform the reader of its purpose.   The affidavits in this case which are attached to the search warrants list the items to be seized namely, laptops/desk top, flash disks, external hard drives, digital cameras or any storage media.

[42]   At this stage I find it apposite to mention that although this has not specifically been raised, I had occasion to deal with a similar Jackpot Supermarket & Another [5] wherein I referred to the decision of the Constitutional Court of South Africa[6]where the Court held that search warrants are not always required to be drafted in terms that everyone understands, nor do they need to define the scope of search in an absolutely exhaustive or perfect way. 

[43]   The Constitutional Court added that the test for intelligibility is an objective one and that a warrant must be reasonably intelligent, in the sense that it is reasonably capable of being understood by reasonably well informed persons with a grasp of relevant empowering legislation and the nature of offences under investigation.  Further that it is unrealistic to expect the terms of the warrant, possibly supplemented by the Section 29(9) (b) of The National Prosecuting Act [7] to place the searched lay person in a position to determine exactly which items could be seized or not.  The said provision is the one that similarly sanctions search as seizure.

[44]   The Court further stated that it can even happen that the search warrant can contain catch-all phrases referring to any document, of whatever nature or content, having or possibly having bearing on investigation because depending on the particular circumstances of a given case, such paragraphs might not be unduly vague or overbroad.

[45]   In light of the above remarks, it is my finding that the search warrants in question by and large meet the above stated guidelines as they are in my view intelligible to both the searcher and the searched.  It is also my view that they and are not too general as they specify the items to be seized i.e. in terms of the affidavits that were filed in support thereof.  The said affidavits also specify the crimes the police officials are allegedly carrying out investigations in connection with. 

[46]   However, it should be remembered that the applicants are not challenging the lawfulness of the warrants on those bases but rather on the reason that the police officers did not place adequate information before the 2^nd respondent which would disclose an objective basis to justify the issue of the warrants.  In this regard they sought reliance on the remarks of the South African Supreme Court of Appeal in the Powell Case (supra) which as I have stated, the Lesotho Court of Appeal referred extensively to in the Moosa Case (supra). 

[47]   On this aspect, the Court in the Powell case per Cameron JA’s judgment held inter alia that the official applying for a warrant has to place before a judicial officer an adequate and objective basis to justify the issue thereof.  That an addition, this entails that he should show that his surmise is not fanciful but grounded in fact, is based on sound evidence available to him and that other persons in his position, considering the facts and the available evidence, could conclude that the surmise in question is not far-fetched, misguided, or patently mistaken especially because the provision he invokes authorizes drastic invasive action. 

[48]   While our own provision that deals with search with a warrant is not worded in exactly similar terms as the South African one, it is my view that their import and purpose are the same especially because they both authorize drastic, invasive action.  It is therefore my opinion that it is apposite to apply the same guidelines that were stated in the Powell Case in this application more so in the light of the fact that it is largely on its basis that the Lesotho Court of Appeal decided the Moosa Case.

[49]   Thus, the next issue for my consideration is whether or not the officials in the present case did meet the said test.  In order to make a proper determination in this regard I find it convenient to again quote the relevant paragraphs namely 2 and 4 in one of the affidavits since as I have already stated, they are worded in more or less similar terms.  In this regard Annexure SM 5 reads as follows:-

“I am a Mosotho male adult employed in the Lesotho Mounted Police Service based at Commercial Crimes Counter Unit, I am the investigating officer in the case of money Laundering and illegal possession of diamonds against Keke Kepe, Genera Mger (sic)Van Niekerk, Molefi Lehloara, Francois Roof and Tass Fourie.

I aver that I have strong information that one Keke Kepe, General Mger Van Niekerk, Molefi Lehloara, Francois Roof and Tass Fourie are in possession of illegal diamonds and electronic evidence such as lap tops/desk top, flash disks, external hard drives, digital cameras or any storage media at their residences and offices at Liqhobong.” (emphasis mine)

 

[50]   It will become immediately apparent that the above quoted paragraphs are silent insofar as stating the following, per the learned Cameron’s guidelines; that the official’s surmise is not fanciful but grounded in fact; that it is based on sound evidence available to him and that other persons in his position, considering the facts and the available evidence, could conclude that the surmise in question was not far-fetched, misguided, or patently mistaken.  There is absolutely nothing in the affidavit to suggest that these were established before the 2^nd respondent issued the search warrants in this matter.  I am conscious that at this stage the respondents are not expected to place actual and/or prima facie evidence before the judicial officer. However, the position is clear that it is insufficient for an official to simply aver that he has strong information.  He is expected to lay some basis for his belief and to show that anyone in his position could come to the same conclusion.

[51]   It is therefore my view that if the Courts were to find such a bare assertion as sufficient, it carries the danger of a possible sanctioning of willy-nilly invocation of the drastic and invasive provision as in some cases it might be resorted to at the slightest suspicion and/or information even where same might indeed be fanciful, misguided or even baseless considering that the procedure results in consequences that may sometimes be hard or impossible to compensate and/or make reparations for.  I am therefore chary to dismiss this application in the face of what are in my view blatant and palpable shortcomings.

[52]   It is for the foregoing reasons that I find that the applicants have successfully made out their case for the relief sought on the basis of this point alone.  I accordingly order as follows:- The application is granted as it is prayed for in terms of prayers 2, 3 and 4 as they are stated in the Notice of Motion.

[53]   Insofar as prayer 5 goes, i.e. costs on the scale as between attorney and client, on the basis that I have found that the applicants have failed to satisfy the requirements of urgency in this matter for the reasons I have already stated above, which I might also add, resulted in a great deal of pressure on, and an inconvenience to this Court, I award costs to the applicants on the ordinary scale.

 

N. MAJARA

JUDGE

 

 

For the applicants                   :         Advocate Zeitsman

 

For the respondents       :         Advocate Sekati