CIV/ APN/167/2007
IN THE HIGH COURT OF LESOTHO
In the matter between: -
OSMAN SALLY MAHOMED MOOSA 1st APPLICANT
BUILDING WORLD (PTY) LTD 2nd APPLICANT
SELKOL 1983 (PTY) LTD 3rd APPLICANT
MOOSA HOLDINGS (PTY) LTD 4th APPLICANT
O.S.M. MOOSA t/a MOOSA'S BARGAIN 5th APPLICANT
MOOSA CASH & CARRY (PTY) LTD 6th APPLICANT
And
THE MAGISTRATE-
HIS WORSHIP MR. NTLHAKANA 1st RESPONDENT
SENIOR INSPECTOR MAKOTE 2nd RESPONDENT
OFFICER M.G. PHEPHETHO 3rd RESPONDENT
MOTLATSI SEKOTLO 4th RESPONDENT
LEBOHANG MOKHESI 5th RESPONDENT
MAQHALI LEPHOLISA 6th RESPONDENT
DAVE OSWALD 7th RESPONDENT
KEELY BEAMENT 8th RESPONDENT
THE COMMISSIONER-GENERAL-LESOTHO
REVENUE AUTHORITY 9th RESPONDENT
THE COMMISSONER OF POLICE 10th RESPONDENT
THE MINISTR OF FINANCE 11th RESPONDENT
THE ATTORNEY GENERAL 12th RESPONDENT
1
JUDGMENT
Delivered by the Honourable Madam Justice N. Majara on the 7th August 2007
By way of ex parte application, applicants approached this Court on an urgent basis for an interdict against respondents in the following terms:-
That a rule nisi be hereby issued calling upon the respondents and any other interested parties, to show cause (if any) on the date and time to be determined by this Honourable Court, as to why an Order in the following terms should not be granted:-
That condonation be and is hereby granted to the Applicants for the non-compliance with the rules of this Honourable Court pertaining to service and process and that this matter be heard on an urgent basis.
That leave be granted to the Applicants for an Order in the following terms:-
3.1 That the Search Warrant, annexed hereto and marked as annexure "OSM l" and "OSM 2" authorized and issued by the first Respondent be and is hereby declared invalid alternatively, unlawful and of no force and effect and is hereby set aside;
3.2 That the search of the properties of the Applicants be is hereby declared unlawful;
3.3 That the seizure of the items and property more
2
fully described in annexure "OSM 1" and "OSM 2" and any other property not contained thereon be and is hereby
declared invalid and unlawful;
3.4 That the Respondents be and are hereby directed to release from seizure and/or attachment and return all the items and property sized from the applicants as set out in Annexure "OSM 1" and "OSM 2" forthwith to the Applicants; and further that the Applicants status quo omnia anti be restored pending finalization hereof.
3.5 That the Respondents be and are hereby directed forthwith:-
3.5.1 To deliver the original Affidavit/s, purported to be testified to by the Respondents on oath, as prescribed in Part VI of the Criminal Procedure and Evidence Act 9 of 1981 (as amended) to this Honourable Court;
3.5.2 To deliver copies of the Affidavit/s mentioned in sub-paragraph 3.5.1 to the Applicants;
3.6 That an Order be granted declaring any evidence solicited or uncovered by the respondents as a result of the search and seizure,
inadmissible as against the Applicants in any proceedings contemplated or initiated by the Respondents, before any courts of Law;
3
The Applicants shall not be granted such further and/or alternative relief as this Honourable Court may deem expedient in the
circumstances;
The Respondents shall not be ordered to pay the costs of this Application on an attorney and Own Client scale or on such basis as this Honourable Court deems just and appropriate.
That Applicants be and are hereby granted leave to supplement these papers on receipt of the document sought in paragraph 3.5 herein above.
That pending final determination of this application, the Orders set out in paragraphs 2, 3.4 and 3.5 herein above operate forthwith as an Interim Interdict with immediate cause and effect.
The application is opposed. The brief facts which brought about this application are that around the 11th April 2007, the 2nd to 8th respondents and other police officers entered upon the premises of the applicants' business and residence armed with a search warrant issued by the 1st respondent in terms of which they conducted a search. At the end of the process, an inventory was drawn and certain property was seized. This is common cause.
I might mention from the onset that although both sides raised points in limine as contained in the founding affidavit
4
deposed to by 1st applicant and the answering affidavit deposed to by one Mokete Phephetho, all were canvassed along with the merits on the date of hearing of this application.
Against this backdrop and for the sake of clarity, practicality and convenience, I intent to deal with the issues herein in the manner and sequence that they were canvassed by Counsel during argument and in their written heads of argument and I proceed to do so immediately below.
The first point that was raised by applicants is that the affidavit accompanying the Search Warrants are irregular and do not qualify as same because Mokete Phephetho (3rd respondent) who deposed to it has not attested under oath and because the citation and all the other documents, purporting to be "affidavits" do not comply with the law in that they do not comply with the requirements of the Oaths and Declarations Regulations of 1964. Further, that the said affidavit was not served on the applicant at the time of search even assuming that it was to be regarded as valid.
I may also add that the above point in limine was raised at the replying stage so that respondents did not have the opportunity to react to it in their papers. However, since a point of law can be raised at any stage of the proceedings, Mr.
5
Viljoen who represents respondents duly responded to it during submissions in Court. In his response, he started on the premise that applicants' point is baseless because the affidavit that was presented to 1st respondent is ex fade good as it complies with the Regulations referred to by counsel for applicants.
Counsel for respondents added that there is no requirement that an affidavit to a search warrant be served on a person against whom the warrant is issued in terms of Section 46 of the Criminal Procedure and Evidence Act of 1981 upon whose provisions the search warrants were applied for before 1st respondent.
Further that at any rate, it was respondents' contention that that this fact notwithstanding, applicants were served with the said affidavit. Furthermore, that the affidavit filed by the clerk of court to the effect that upon her perusal of the court's file she did not find the said affidavit was countered by the one filed by 1st respondent where he averred under oath that the affidavit was presented before him and that he had thoroughly considered it before he issued the search warrant and had kept it in his chambers for the reasons that he outlined.
In order to determine whether or not the affidavit is defective I proceed to examine the requirements of the Oaths and
6
Declarations Regulations of 1964. Regulation 4 thereof provides in parts and in so far as is applicable herein as follows :-
"The form of words to be used in an affidavit which is sworn on oath shall be-
'I, .................. of............ (setting out the name, addressand description of the deponent) make oath and say as follows
Coming back to the case at hand, the affidavit in question which is marked "Pl" and was attached to Mokete Phephetho's answering affidavit in this application is styled in this form:-
I
The undersigned;
Mokete phephetho
Do hereby make oath and say that;
The said affidavit bears the following words at its end, 'signed and sworn to before me at Maseru on this 23rd Day of April 2007 by deponent having acknowledged that he knows and understands the contents of this affidavit.
It was attested to by a Commissioner of Oaths Advocate Lebakeng Mokhehle who filed a supporting affidavit in which he confirmed that Mokete Phephetho deposed to it before
7
him. In my opinion, the document is indeed satisfactory on the face of it. I therefore have no reason to doubt that the Commissioner of Oaths followed the requirements of the regulation and was satisfied that the deponent understood the meaning of the oath as he is enjoined to do so the provisions of paragraph (b) of the regulation.
Further, I find the affidavit proper as it is styled along the form that is provided for by Regulation 4 as quoted above. I therefore find that the point raised by applicants i.e. the first leg thereof, is without merit and falls by the wayside. I proceed to consider the second leg of applicants' point to wit, that the affidavit ought to have been served on applicants at the time of search. I have already shown that respondents made the averment per Mokete Phephetho's answering affidavit at paragraph 19 thereof that applicants were shown both the warrants and the affidavit. To this end, he averred as follows :-
"I must indicate that after being handed the affidavit and the search warrant Mr. Moosa read them and said he understood everything.
It should be noted that even before he read the documents Senior Inspector Makote had already told him that there were actually three search warrants that had been issued as the other one was for his residential place at Lower Thetsane in the district of Maseru while the other one was for Moosa's Bargain City."
8
Further, 3rd respondent stated at paragraphs 22 and 23 of his answering affidavit that:-
"...one gentleman who he introduced to us as his attorney arrived in Shameem's office. I know this gentleman's name to be
Ntjelo Hlalele as we were schooling together at the National University of Lesotho.....
I wish to note that Mr. Hlale (sic) too was given the affidavit and a search warrant by Senior Inspector Makote and Mr. Moosa respectively.
I aver that after reading the documents Mr. Hlalele and Mr.Moosa went into a separate office. When they came back they said that we could resume with our search and imaging of computers. Mr. Hlalele indicated that he had come thinking that there was something serious that would require his presence. Having said this he left."
These averments are supported by amongst others, David Michael Oswald (alias Dave) who averred at paragraph 9 as follows:-
"I aver that when we arrived in Shameem's office Inspector Makote introduced us to him and advised him of the purpose of our
visit. Inspector Makote then handed both the search warrant and the affidavit to Shameen. After reading the documents Shameem indicated
that we should wait for sometime as his father Mr. Moosa was already on his way to Selkol 1983 (Pty) Ltd's (sic) premises.
Dave continues as follows at paragraphs 10 and 11
respectively:-
9
"I aver that as Mr. Moosa was still writing our names and contact numbers one gentleman arrived in the office who Mr. Moosa
introduced to us as his Attorney. He too was told of the purpose of our visit and was handed both the affidavit and a search warrant to read by Senior Inspector Makote and Mr. Moosa respectively.
I verily aver that after reading the documents the Attorney handed them back and they went into a separate office with Mr. Moosa. When they came back they both said that we could resume with our search and imaging of the computers. The attorney indicated that he had come thinking that there was something serious that would require his presence. Having said this to us he left. I had explained to Mr. Moosa how I will go about with the process of imaging the hard drives."
In reaction to the averments contained in paragraph 19 of the answering affidavit 1st applicant responded as follows in his replying
affidavit:-
"I am advised to deny the allegations herein in so far as same is inconsistent with the averments made by me on both my Affidavits”
He is supported by Shameem in his supporting affidavit. However the averments of 3rd respondent as they appear in paragraphs 22 and 23 as quoted above were not answered by 1st applicant in his reply. Mr. Hlalele in turn responded as follows in his supporting affidavit to the replying affidavit:-
"I wish to align myself with the applicants' Replying Affidavit in so far as it relates to my involvement in this matter; I requested of the search warrant from
10
the 1st Applicant and there was no affidavit attached to it. The 3rd Respondent also never showed me any affidavit"
I must immediately point out that as opposed to the details and factual assertions made by respondents in their respective affidavits the denial by applicant is only a bare one. In addition, the way it is phrased leaves me with the impression that he is denying the averments not because they are not true, but simply because he was advised to do so since to state otherwise would 'be inconsistent with his earlier averments'. I had hoped to hear 1st applicant come out clearly and properly deny these allegations on the basis of the facts as he knew them since he is the one who was allegedly shown the affidavit after he arrived at the office.
In my opinion, a deponent does not simply deny allegations because he was so advised. He should deny them because he knows the salient facts personally. Under these circumstances, I am left with the impression that the denial is indeed without basis and/or substance.
In a similar vein, Mr. Hlalele contented himself with making a bare denial to 3rd respondent's averments. This is despite the fact that the latter also specifically stated that after seeing the documents, Mr. Hlalele told them they could resume their search and imaging as he had come there thinking there was
11
something serious that would require his presence. While Mr. Hlalele did not deny his presence at the premises on the said date, he did not favour the Court with his own version of what transpired at the time he was there. He simply denies respondents' version that he was shown the affidavit. Within this scenario, I find no difficulty accepting respondents' version as being the more probable viz, that 1st applicant and his attorney were shown both the affidavit and the search warrant that the applicants and their counsel were indeed shown the said affidavits on the strength of the case of Plascon-Evans Paints v Van Riebeeck 1984 (3) SA 623.
I also find it apposite to add at this stage that the fact that the clerk of court Mr. Mampa stated under oath that he did not find the affidavit "P 1" when he looked for it was satisfactorily explained by the 1st respondent in his supporting affidavit to 3rd respondent's answering one. The latter averred that applications for search warrants are made in chambers due to their sensitivity and as a measure to guard against any possible leakage of information to the suspects. He added that it is only after their execution that the documents are taken to the registry.
It is my considered opinion that a person of 1st respondent's standing cannot easily lie to this Court under oath. In addition, it was not even suggested that he might have had
12
any interest in the matter apart from the discharge of his duty as a judicial officer as he is enjoined to do so by the law. Therefore, if he says he issued a search warrant on the basis of the affidavit after considering it thoroughly, I accept and believe him without any doubt in my mind. It should be remembered that the same affidavit also bears his signature and date stamp of the 11th April 2007.
This my view, finds support in the case of SA Police v SA Associated Newspapers 1966 (2) SA 503 quoted to this Court wherein in
considering the question of search of premises without a warrant, the learned Beyers ACJ had this to say at p 511 G to H:-
"It seems to me thai a policeman who is armed with a warrant is in an entirely different position. The warrant has been issued to him by a responsible person to whom it has been made to appear on oath that reasonable grounds exist for believing certain things The persons who are entrusted with the important duty of issuing search warrants are responsible officers..." (my underlining)
In light of the above statement, I entirely agree that 1st respondent is a responsible officer and that any suggestion to the contrary would have to be substantiated with satisfactory facts.
13
At any rate, despite my having found that on the basis of the facts before me, the affidavit was shown to applicants, I proceed to deal with the question whether or not the law enjoins a police officer executing a search warrant to show it to the person against whom it was issued.
Search and seizure in Lesotho are governed by Section 46 of the Criminal Procedure and Evidence Act of 1981. The
section reads as follows:-
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
Stolen property or anything with respect to which any offence has been, or is suspected on reasonable grounds to have been, committed, or
Anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any offence; or
Anything as to which are reasonable grounds for believing that it is intended to be used for the purposes of any offence,
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 take it before a magistrate to be dealt with according to law.
14
Any warrant issued under this section shall be executed by day unless a judicial officer by a warrant specially authorizes it to be executed by night, in which case it may be so executed, and in searching of any woman section 41 (3) mutatis mutandis applies;
A warrant may be issued and executed on Sunday as on any other day under this section.
As it can be seen from the wording of the above quoted section, there is nowhere that the police officer armed with a search warrant is required to serve the person against whom the search is being conducted with the affidavit. In my opinion, the affidavit is meant for the judicial officer who is requested to issue the search warrant so that he can satisfy himself that he has been approached upon reasonable grounds by an applicant.,
Subsection (2) is specific that it is the warrant that has to be executed. It makes no mention of the affidavit at all. My view is that this is because the question of a complaint made on oath is meant for the judicial officer only and nobody else since he is the one who has to determine whether or not the search warrant is being sought on solid or on frivolous grounds.
It should be remembered that a complaint an oath can also be through viva voce evidence and that this should be distinguished from a formal application instituted by way of
15
motion proceedings which has to be accompanied by an affidavit as a mandatory requirement of the rules of Court. The section therefore
makes provision for a complaint made on oath without necessarily intending that the request be made by way of formal application
proceedings. Surely under such circumstances the search warrant would not be disqualified simply because there is no written affidavit to accompany it at the place of search unless circumstances prevail which necessitates that it be shown. I therefore do not accept the submission made by counsel for applicants that the affidavit should as a matter of law have been shown to applicants.
This case should therefore be distinguished from the decision in Goodwood Municipality v Rabie 1954 (2) SA 404 at
406 B-C quoted to this Court which was clearly dealing with motion proceedings strictu sensu.
In a similar vein, the present case is distinguishable from that of Engineering Requisites (Pty) Ltd v Adam 1977 (2) SA
175 also quoted to this Court, wherein the Court was dealing specifically with an applicant who prefers to approach the Court by way of a summary judgment. At any rate, the affidavit therein was ex facie improper as opposed to the one in casu which I have already found to be in compliance with the requirements of Regulation 4 as quoted above.
16
In addition, even assuming that respondents had approached 1st respondent by way of motion proceedings, the affidavit would in my
opinion still pass muster as it is proper on the face of it. Thus as it was correctly stated in the case of Nkondo v Minister of Police and Another 1980 (2) SA 363 quoted to this Court, per Smuts J:-
"The onus rests upon the person who applies for relief by way of notice of motion supported by an affidavit of affidavits to show on a balance of probabilities that he has placed evidence in proper form before the Court. "
The learned judge did not however stop at that. He continued as follows:-
"It is not a sine qua non for the validity of an affidavit that the commissioner of oaths who administers an oath should state in so many words that he has done so. If it can be gathered from the document as a whole that the oath was in fact administered, that will be sufficient compliance....”
I have already shown that I have no doubt in my mind that as he averred in his supporting affidavit, the 1st respondent had satisfied himself that the affidavit that was placed before him was proper for as was stated in S v Munn 1973 (3) SA 734, whether there has been substantial compliance with the regulations is a matter of fact, not of law.
17
I might however add that although I have found that it is not a legal requirement that the affidavit be shown together with the warrants to the applicants, the fact that this nonetheless happened in casu, proved beneficial as will become apparent in the latter parts of this judgment especially where I consider the issues of the contents and ambit of the search warrants and that of severability.
Having said this, I do not wish to belabour this point any further although further submissions were made on behalf of applicants regarding the issue of the affidavit in question and attestation thereto by a commissioner of oaths. I believe that I have sufficiently examined and made a determination on what is in my opinion, the legal position as envisaged by the requirements of section 46.
The further submissions do not in my view, take this point any further. Suffice it to say that it is for the above reasons that I do not accept the point made by Mr. Patel that the 1st respondent erred in granting the Order when there was no affidavit before him thereby rendering the search warrants defective and the search conducted on their mandate, unlawful.
I turn now to deal with the next issue which is the main basis of applicants' case to wit, according to the section, the
18
suspicion must relate only to an offence of theft or any other offence committed or reasonably suspected to being committed.
Mr. Viljoen countered this submission by stating that the section is not limited to the offence of theft but applies to any offence. He added that even the contents of the search warrants themselves are self-explanatory i.e. that they were not aimed at the recovery of stolen property and were not sought on the grounds that the offence of theft was being committed as they clearly showed that the property in question belongs to the applicants.
I find it convenient at this stage to revisit the section whose provisions I have already quoted above. Subsection 1 (b) makes reference to 'anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any offence'.
Before examining the contents of the warrants, I find it proper to start first with dealing with the provisions of the section and hasten to add that in my opinion, Mr. Viljoen's submission is correct because indeed whilst subsection 1(a) makes specific mention of the offence of theft, the next subparagraph relates to the commission of any offence.
19
Mr. Patel also based his submission on the reason that 'the search warrant refers to the theft of something from somewhere belonging to some unknown person or persons, allegedly removed from some unknown person/s.' He added that the allegations are not supported by any information as to the period of theft and are in divergence to and in conflict with the allegations contained in the affidavit in regard to the criminal conduct imputed to the applicant/s.
Further, that the search warrant does not refer to any other criminal offence, as set out in the affidavit and that this discrepancy leads to the inference that, the respondents are on a fishing expedition.
Furthermore, that nowhere in the affidavit have the respondents shown that any of the applicants will destroy or remove any evidence, and if this is alleged, the basis on which an inference is drawn must be established at least on prima facie reasonable grounds. Mr. Patel also added that in the absence of such an allegation the Court can conclude that the basis upon which the respondents relied on their suspicion is speculative grounds.
In response, Mr. Viljoen made the submission that the opening lines of both warrants indicate that they are not aimed at recovering stolen goods and that five other people
20
including two computer experts are mentioned therein. He added that these people were introduced to applicants' main deponent whom together with his attorney were told what the purpose of the visit was and who in turn told Mr. Oswald (one of the computer experts) that they '... could resume with the search and imaging of the computers.'
Counsel for respondents added that the other people who were mentioned in the heading to the search warrants were employees of the Lesotho Revenue Authority who took part in the search and that all this would have left applicants with no doubt that the search was not for stolen goods.
He added that even the description of the goods belie Mr. Patel's submission for they fall into four main categories namely:
Financial statements;
Management accounts;
Any computer recording material including but not limited to personal computers, laptops, CD's flash discs; and
Any record that may establish the correct financial position of the companies and business.
Mr. Viljoen made the submission that no right-thinking person could be left in doubt that all the above mentioned
21
items were not 'stolen goods' and that the matter is put beyond doubt by reference in the warrants to the owner of the property as Osman Mahomed Moosa and his group of companies. Further, that the Court should accept that the printed words "have been stolen and" were mistakenly not struck out.
I proceed to consider the above submissions. Perusal of the search warrant "OSM 1" reveals that aside from the hand written words which mainly make mention of the persons to whom the warrant is issued as well as the description of the goods as already listed above, are the standard printed words have been stolen and are concealed in the house or premises situated at.
The above emphasised words are the main cause of concern on the part of applicants as I have already shown above. Needless to mention, Mr. Patel is correct that they make specific reference to theft. The next question is therefore whether the presence of these words in-validate the search warrants which would entitle applicants to the relief sought.
In my opinion, this issue can properly be determined by looking at the matter holistically and not in compartments. In other words, whilst I have to look at the wording of the warrant, I cannot ignore the contents of the affidavit that was
22
placed before the magistrate as well as the facts surrounding execution thereof as they are contained in the pleadings.
To this end, I believe that the affidavit "P 1" should shed some light as to the nature and purpose of the search warrants. Paragraph 3 of the affidavit contains the following statement:-
"I am one of the investigators in a case wherein there are serious allegations of violation of the tax laws, cheating of public
revenue and fraud by Mr. Osman Sally Mohamed Moosa and his group of companies. The allegations are to the effect that Mr. Moosa who is heading the under mentioned group of companies and businesses suppresses the sales of the companies and businesses in their Vat returns and is understating their profits or income in the income tax returns.
The allegations are further to the effect that Mr. Moosa is also failing to withhold income tax from his employees' salaries in terms of the law and that he does not pay fringe benefits tax in respect of the motor vehicles that are provided to some of the staff members of these companies for their personal use. Mr. Moosa a Mosotho Indian Businessman is the main director holding majority shares in these companies. In so far (sic) Bargain City in (sic) concerned he is trading as a sole trader. These improprieties are alleged to have taken place since 2003 and the Revenue authority has lost over Millions in taxes. "
The deponent states further at paragraph 6:-
"According to our informer Mr. Moosa keeps on his person a flash disk that contains all the genuine business transactions particularly that of Selkol 1983 (Pty) Ltd Again this vital evidence can also be found at the hard drive of the main server's hard disk of Moosa Group of
23
Companies that is kept at the building of Selkol (Pty) Ltd
at industrial area in the district of Maseru. Our informer has further disclosed that Mr. Moosa has genuine financial statements and Management Accounts that are not kept at the business premises but which are kept at his residential home at Lower Thetsane in the district of Maseru.
We have further been informed that apart from the soft copies there also hard copies relating to the business transactions of these
companies in their respective offices at Selkol and that this information will go a long way in proofing (sic) that the companies
and Mr. Moosa have been evading tax....
I verily aver that it is upon the stated facts that I hereby apply for a search warrant for the said information as it is clear that it will go a long way in assisting us to establish with certainty the actual sales of these companies and their correct income....."
On the basis of the above averments, I am satisfied that the search warrants were not issued on the basis of allegations of theft against 1st applicant and his group of companies, but on the basis of the averments as contained in the above quoted paragraphs.
However, despite this fact, it is still important to examine further the facts surrounding the execution of the said warrants in the form that they were to enable me to determine whether or not, applicants' point has any merit, to wit, that as they stood, the discrepancy between them and the affidavit
24
leads to the inference that respondents are on a fishing expedition.
In his founding affidavit 1st applicant averred that on the date in question, 2nd to 8th respondents in the company of other police
officers entered the premises of his business without any warning or prior notification and handed the search warrants to the management
of applicants and to his security at his residence.
Further at paragraph 6, 1st applicant stated as follows:-
"The Warrant was issued on the basis of an illegality as the 2nd and 8th respondents, in company with those acting on their authority, when they did so, had no lawful suspicion or belief, based on objective and reasonable grounds, to entitle them to Search Warrants being issued clandestinely;
In fact, the basis on which they contend that the warrants were necessary is that: "the property of Osman Mohamed Moosa and his Group of Companies have been stolen and are concealed in the house or premises situated at Lower Thetsane and at Selkol 1983 (PTY) Ltd Industrial Area"
1st applicant had already averred as follows at paragraph 5 thereof-
"...and instructed every operations of the applicants to come to a halt, without clearly explaining the core reason for their raid and/or closure of the Applicants' premises
25
and thereof commenced with the search of properties, described in the said warrants;
They provided no explanation as to why it was necessary for them to search my properties or in fact to seize the items and property
listed in annexure "OSM 1" and "OSM 2" hereto. They were clearly arrogant and asked me not to question them about their work and they were determined, which became evident from the blatant and obstinate manner in which they conducted themselves, that they were clearly out to cause me embarrassment and not entertain any legitimate intervention by me;"
These allegations were responded to in the answering affidavit deposed to by
3rd respondent especially at paragraph 11 thereof in the following words :-
"I deny the contents herein and put deponent to the proof thereof. I aver that no warrant was issued on the basis of illegality
as alleged or at all. Indeed we had more than lawful suspicion and believe, (sic) based on objective and reasonable grounds entitling us to search warrants being issued.
I want to be candid and admit that the words "having been stolen and" that appear on the search warrants ought to have been cancelled in as much as the items that we were going to search for and the computers that we were going to image were not stolen. I admit this error relating to the form of the search warrant.
However, having been given the explanation and the reasons why we were conducting a search, and read the affidavit I verily believe
aver that Mr. Moosa understood very well what the search was all about and the documents that were being looked for. This error did not
26
prejudice him in any manner and he cannot say he was at loss regarding the documents that we were looking for. In fact, if these
words are severed the search warrants will still stand."
Whereas to the averments contained in paragraph 5 of the 1st respondent's founding affidavit, Phephetho reacted in these words:-
"I aver that at the time when we arrived at Selkol 1983 (Pty) Ltd Senior Inspector Makote introduced us to the receptionist and asked for Mr. Moosa* As Mr. Moosa was not available he then asked for any member of the management of the company so that he may explain the purpose of our visit. The receptionist made a call after which she directed us to the office where we found Mr. Moosa's son Shameem who told us that he was the Director of the company.
I verily aver that after Senior Inspector Makote had
introduced us to Shameem he told him that we were there pursuant to a search warrant that has been issued against the Applicants. In clear and unequivocal terms he told Shameem the serious allegation and criminal conducts that have been leveled against the Applicants as they appear in annexure "P1" and explained why it was necessary to conduct a search and the documents that will be seized. He explained the purpose for coming with the experts and their role in the whole search. He then gave Shameem the affidavit and the search warrant to read.
I aver that after reading the documents Shameem returned them to Senior Inspector Makote and asked us to wait as his father, the
deponent to the founding affidavit was already on the way to the premises of Selkol 1983 (Pty) Ltd, Indeed after sometime Mr. Moosa
arrived in Shameem's office whereupon Senior Inspector
27
Makote introduce (sic) us to him as he had done to Shameem.
I must indicate that after being handed the affidavit and the search warrant Mr. Moosa read them and said he understood everything. It should be noted that even before he read the documents Senior Inspector Makote had already told him that there were actually three search warrants that had been issued as the other one was for his residential place at Lower Thetsane in the district of Maseru while the other one was for Moosa's Bargain City."
The 1st applicant's reaction to the concession as contained in the quoted paragraph 11 of 3rd respondent's answering affidavit above is that it;
"suggests that the respondents were reckless, negligent or acted mala fides, on their own version, in having search warrants issued which now they purport not to have been in terms of what they themselves intended. For this reason also, the Search Warrants ought to be set aside and the property of the applicants returned to them forthwith. This impinges on their own credibility on their own version;'
Adv Hlalele will deny also that he received the document purporting to be an Affidavit (First Affidavit);
The fact that the Respondents have the documents, it shall be noted that they persist with bald allegations of illegality contained
therein, but despite this averment, they have as yet not taken this Honourable Court in their confidence by setting in detail the nature and extent of the alleged illegality. To make spurious allegations the size of mountains, (sic) but if that is not explained or supported objectively, is a further step in establishing that the balance of convenience favours the applicants."
28
When considering all the above averments in conjunction with those contained in the affidavit placed before the 1st respondent, I come to the conclusion that although as Mr, Patel was correct in submitting, the search warrants were ex fade issued with respect to stolen property, I cannot ignore the fact that as I have already found, applicant and his counsel Mr. Hlalele were nonetheless
informed of the nature and purpose of the search.
It should also be remembered that I have already stated earlier that respondents' version has been met with basically bare denials
especially with regard to the fact of the affidavit having been placed before them and an explanation having been offered as to why the search and imaging were being carried out. In my opinion despite this error, the very fact of the manner of execution of the warrants and the affidavit "P 1" negates the submissions that applicants did not know the purpose and nature of the warrants.
In addition, respondents stated in the answering and supporting affidavits that after perusal of the warrant and the affidavit "P
l", 2nd to 8th respondents and their companions were given the green light to carry on. This evidence was not gainsaid at all.
29
I therefore come to the conclusion that against this backdrop, applicants were well aware of the actual nature and purpose of the
search warrants. I also cannot ignore the fact that the words 'stolen property and' are indeed standard printed words on any search warrant albeit with the rider that due to failure to sever the words, the search warrant was as a matter of fact poorly and/or negligently drafted.
However, it is my view that taking all the surrounding factors of this matter into consideration, respondents' failure to have the said words so severed did not result in applicants suffering any prejudice which is the yardstick I am using in determining whether or not applicants have made out their case especially in terms of prayer 3 as it is stated in the Notice of Motion.
The question of severability was also considered in the Associated Newspapers' Case (Supra). Although therein, the Court was dealing
with a paragraph which was couched in wide terms as opposed to in casu, where the warrant contains printed words which ought to have been deleted, it found that the item 'was so clearly severable from the other items that its invalidity did not affect the rest of the warrant'.
It is by the same analogy that I find that all things considered, the presence of the standard printed words 'stolen property and' does not affect the validity of the search warrants.
30
Things might have been different if the Court was not told under oath that the warrants and the affidavit as well as their nature and purpose were explained to 1st applicant after perusal of which, he together with Mr. Hlalele gave the respondents to go ahead with the search and imaging.
The argument raised by Mr. Hlalele during his verbal submissions in Court that the above cited case was dealt with during the apartheid era and should not be applied herein although sound, cannot be taken at face value but should in my view, be viewed along with all the surrounding factors including the considerations made by the Court at the material time.
In light of that aspect, whilst as I have said, I acknowledge that this submission is not without merit, I am of the opinion that the reasons that were given by the Court therein went well beyond racial considerations if at all, and were sound and rational. In my opinion the said considerations still apply with regard to search and seizure even in this era.
Further, search and seizure will undoubtedly always form a good part of the criminal justice system in any dispensation since its main object is to make possible speedy and proper investigations. What is important is that the whole process should not be arbitrary but should be justified before the
31
designated, and I might add, impartial and independent officers can grant the request.
I now proceed to consider the issue of the allegations contained in the affidavit upon which the search warrants were issued. With regard to this point, Mr. Patel made the submission that the affidavit makes mention of inter alia, cheating of public revenue and fraud and that there is no such offence as cheating of public revenue and that as it was averred by 1st applicant in his Replying Affidavit in paragraph 6.1, this is 'indicative of the lack of credibility in the investigations. Clearly Respondents cannot be seen to be investigating an offence, which in law, does not exist.'
In response to the above submission, Mr. Viljoen brought to the Court's attention the provisions of Section 30 of the Directorate of Corruption and Economic Offences Act, No. 5 of 1999 which reads as follows:-
"Cheating of public revenue
30. A person commits the offence of cheating the public revenue if as a result of his fraudulent conduct money is diverted from the revenue and thereby deprive (sic) the public revenue of money to which it is entitled."
Although Mr. Patel argued that the matter of the above mentioned Act is a totally different one I do not accept such a submission. This is because as can be seen immediately
32
above, cheating of public revenue exists as one of the offences in this country. I have already shown that Section 46 1 (b) makes provision for search and seizure to be conducted with regard to anything as to which there are reasonable grounds for believing that it will afford evidence as to the commission of any offence.
I accordingly do not think that it is debatable that any offence means just that, regardless of under which particular law it might fall. For instance, it could be under statutory law dealing with dangerous weapons, dangerous medicines, sexual offences,
tax etc or even under the common law. That is not important as long as the judicial officer is satisfied with the evidence on oath that ah offence has been or is about to be committed. Needless to mention, in the light of the above reasons, this point naturally falls by the wayside.
In his further submissions, Mr. Patel added that case law per the decision in Jacob Geeddleyihlekisa Zuma and Another v National Director of Public Prosecutions and Others Case Number 14116/05 Durban and Coast Local Division has established the following principles on search warrants:-
"The party seeking to issue a warrant with stealth, has to satisfy the judicial officer as to the reason why this is necessary,
namely 'that the element of surprise was necessary to obviate the possibility of any evidence which it was hoped to recover in the course of the search and seizure procedure, being remove or destroyed".
33
Mr. Viljoen in turn argued that the above case is distinguishable from the one at hand for the reason that in that particular one, the statutory basis for the search warrants did not stem from similar legislation to that here in issue but from the provisions of section 29 (1) of the National Prosecuting Authority (NPA) Act, No, 32 of 1998. Further, that the facts of that case were unusual and entirely distinguishable from those here in issue.
The Zuma's case indeed dealt with a number of issues, including but not limited to;
(i) applicability of provisions of s 29 of NPA Act 32 of 1998 against persons arrested and charged with an offence;
(ii) the validity of warrants issued in terms of the section set out specified offences and conveyed intelligibly to both searcher and searched the ambit of the search;
(iii) the validity of the warrants issued in terms of the section in respect of privileged documents;
(iv) the validity of the contention that invalid portions of the warrants were severable from the remainder.
In my view, only two of the above issues viz, (ii) and (iv) are of relevance in casu. With regard to the first question, the Court in the Zuma case held that it was authoritatively established that a valid warrant must set out the specified offences suspected of having been, or being committed, and convey
34
intelligibly to both searcher and searched the ambit of the authorised search.
In its determination of the issue, the Court went further to add that the warrants therein contained what could be described as a 'catch-all paragraph' of 'breathtaking proportions' and that this had to be taken against the backdrop that the applicant had already been charged and was accordingly, 'an accused person' at that time. The Court also added at p 488 paragraph as follows:-
"The request, by the second respondent, for a warrant with this catch-all phrase in it is tantamount to authority to search an accused person's premises 'to find anything that will help me in the prosecution'.... It must be borne in mind that, at the time when the searches commenced, none of the search parties was equipped with a copy of Mr. Du Plooy's affidavit. The second applicant specifically asked to examine a copy of the affidavit for the purpose of deciding whether to oppose the execution of the search warrants, but his request for time to consider this evidence was summarily refused, "(my emphasis)
In the light of the above statement, whilst I agree that in casu, the warrants in question do not set out the specified offences suspected of having been committed or being committed, it is my view that this is remedied by the fact that the affidavit requesting them was shown and explained not only to 1st applicant, but to his counsel as well. These documents were
35
never challenged instead the respondents were allowed to continue with the execution thereof.
It has been alleged and I have accepted as true the averment that after they perused the documents, 1st applicant and his counsel gave respondents their consent. In my view, it is this very factor amongst others that renders these two cases distinguishable. Further, the Zuma case was peculiar in that it dealt with 'an accused person' not to mention that the information sought was privileged in that it was attorney-client information.
The same issue had also come up for consideration in the case of Ferruci and Others v Commissioner, SARS, and Another 2002 (6) SA 219 at 234 where unlike what obtains in casu, the Court found that the various difficulties flowing from the terms and contents of the warrant, permeated the warrant as a whole, and led to the conclusion that the defects in the warrant could not be cured by severing specified portions thereof.
Similarly when considering this issue, Oosthuizen AJ (as he then was) also drew the distinction between the Ferruci case to which much reference was made in the Zuma case and that of Euro-Can-Am Trading Incorporated, Gladwin & Gladwin v Attorney General of Ontario 45 CRR (Ont CA).
36
In the latter, the Court had found that all the missing particulars were contained in the information or its appendices, which were available to the parties against whom the warrant was executed and there was no suggestion that any prejudice had been caused by the lack of particularity. In this case, the relevant information or appendices would be the affidavit "P 1".
Although I have already dealt with the issue of severability, I find it proper to revisit it in the light of the considerations in the Zuma case (supra). My perusal of the said judgment especially at p 493 thereof, leads me to the conclusion that therein, the issue of severability was in reference to the too wide a nature of the warrants whereas in casu, the issue is with regard to the standard printed portions which ought to have been, but were not struck out. In the Zuma case, the Court makes specific reference to saving the warrants 'by pruning them down to acceptable limits'.
Coming back to the present case, I am of the view that all things considered, i.e. the contents of the affidavit upon which the search warrants were sought, the fact that the nature and purpose of the warrants were explained to 1st applicant and his counsel, the fact that the affidavit was shown to both of them at the time the warrant was executed, and the fact that
37
the affidavit said nothing about the offence of theft, leads me back to my earlier conclusion that the defect in the warrants can be cured by severing the printed words, 'stolen property and5 and that applicants were not prejudiced by the failure on the part of 1st respondent to so sever them.
I now turn to deal with the submission that the affidavit is based on hearsay information which is superficial and lacking in substance.
With regard to this issue, Mr. Patel made the following submissions:-
Reliance was placed by the respondents on the information (which are vague and embarrassing) of an informer;
This information was not objectively investigated before they jumped to secure the warrants;
This leads us to the reliance of Informer's (sic) and the limitations incidental to the information received."
Whether or not the information was vague and embarrassing is a question of fact and not law. The salient facts herein can be found in annexure 'P 1', the affidavit requesting issue of the search warrants. At paragraph 3 thereof, the deponent Phephetho deposed as follows:-
"I am one of the investigators in a case wherein there are serious allegation of violation of tax law, cheating of public
revenue and fraud by Mr. Osman Sally Moosa and his group of companies. The allegations are to the effect that Mr. Moosa who is
heading the under mentioned group of companies and businesses suppresses the sales of the
38
companies and businesses in their VAT returns and is understating their profits or income in the income tax returns.
The allegations are further to the effect that Mr. Moosa is also failing to withhold income tax from his employees' salaries in terms of the law and that he does not pay fringe benefits tax in respect of the motor vehicles that are provided to some of the staff members of these companies for their personal use. Mr. Moosa a Mosotho Indian Businessman is the main director holding majority shares in these companies. These improprieties are alleged to have taken place since 2003 and the Revenue Authority has lost over Millions in taxes.”
The deponent goes on to list the concerned companies and businesses.
I must say that in my opinion, I did not find anything vague and embarrassing about the above quoted assertions by Phephetho safe to accept that they were received from an informer. I further do not believe that having read "P 1", anyone could find any difficulty understanding the nature of the allegations leveled against 1st applicant and his group of companies.
On the issue that the information was not objectively investigated before the warrants were requested, further averments in the affidavit deposed to by Phephetho especially in the unnumbered paragraph that appears between paragraphs 4 and 5 read as follows:-
39
"I must indicate that I verily believed all the information that we received from our informer in as much as in conducting our investigations we thoroughly tested some of these allegations and they have indeed turned out to be true. For instance we have already established that there are staff members of these companies who are allocated motor vehicles for their personal use but that no fringe benefits tax is being paid...."
As can be seen from the above quoted passage, Phephetho states in no uncertain terms that they had tested the allegations and satisfied themselves that they are true. I therefore cannot accept the contention that the information was not objectively investigated. It should be remembered that this is not yet the stage of trial but a preliminary investigative one which might or might not finally lead to prosecution of suspects.
With regard to the submission that there are limitations incidental to information received from an informer, I totally agree. However, for the same reason as I have stated immediately above, the main aim of Section 46 of the CP&E is to assist police officers in securing evidence as to the commission of any offence. In my opinion, a complaint made on oath under this section does not have to be evidence beyond a reasonable doubt.
40
Suffice it to say that the judicial officer before whom it is made has to exercise his discretion judiciously in acting on his belief that the provisions of the section have been sufficiently met. The 1st respondent averred that he issued the warrant after careful
consideration of the evidence as contained in the affidavit and as I have already stated, I have no reason to doubt his evidence. Thus, I respectfully agree with the approach that was adopted by Beyers ACJ the SA Associated Newspapers' Case (Supra) p wherein he stated that:-
"I am persuaded that an objective approach to the matter by the Courts is excluded because of the following considerations: The persons who are entrusted with the important duty of issuing search warrants are responsible officers. I cannot think that the discretion allowed to them should be justiciable in a court of law, save in very exceptional circumstances. Furthermore, they will in many cases be acting upon information of a confidential nature which it might be unwise to disclose in court."
Lastly, Mr. Patel asked the Court to take due cognizance of the fact that Lesotho has signed the African Union Convention on the African Charter on Human and People's rights regarding the rights of citizens and went on to quote several articles which he submitted have application in this matter. The said articles can in my opinion be summed up as being protective of every citizen's freedom not to be subjected to arbitrary interference with inter alia, his privacy, family and home or to attacks upon his reputation and honour.
41
This freedom as well as others, is also guaranteed by Section 10 of the 1993 Constitution of Lesotho. However, it is also trite that this is one of those freedoms that are not absolute or sacrosanct but are subject to limitations such as those that are provided for by the Constitution. To this end subsection (2) thereof provides in parts and in so far as is relevant in casu as follows:-
"Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision that authorizes an officer or agent of the Government of Lesotho or of a local government authority or of a body corporate established by law for public purposes to enter on the premises of any person for the purposes of inspecting those premises or anything thereon in connection with any tax, rate or due
(3) A person shall not be permitted to rely in any judicial proceedings upon such a provision of law as if referred to in subsection (2) except to the extent to which he satisfies the court that that provision... does not abridge the freedom guaranteed by subsection (1) to a greater extent than is necessary in a practical sense in a democratic society in the interests of any of the matters... specified in subsection 2(b), (c) or (d).
Coming back to the case at hand, it is my view that when account is taken of the fact that the search warrant and seizure were sought on the basis of a sworn affidavit upon which the 1st respondent relied in issuing it after careful
42
consideration, the search and seizure were not arbitrary. I have already shown that the averments made by 3rd respondent in his answering affidavit that the 1st applicant and his lawyer were shown the warrant and affidavit and consented to the search and imaging were not gainsaid except for bare denials in the reply and supporting affidavits.
It was also 1st applicant's case that the actions of the respondents tampered with the computers of the applicants and removed information
thereof. To this end he further stated as follows at paragraph 6.11:-
"This has resulted in a contamination of some of the information of applicants' computers, which information has a direct effect to our trading activities.... this has destroyed information to the extent that the information thereto cannot be retrieved....
The circumstances herein referred also create the real danger that these copies will be tampered with and cause prejudice to the affairs of the Applicants. It is thus imperative that the information extracted by the Respondents be returned to the Applicants forthwith and the status quo omnia ante be restored."
The above averments were answered to by 3rd respondent as follows:-
"I deny that the computers of the Applicants have been tampered with as alleged at all. All that has been done was to professionally
image these computers. There is no contamination of the information as alleged or at all. In fact at the time
43
that we left the premises of Selkol all the computers had been tested and they were all working. ...I wish to incorporate the averments in the supporting affidavit of Dave herein... "
David Oswald's supporting affidavit is in turn very detailed and I find it convenient only to quote sections of the relevant paragraphs that directly deal with the applicant's assertions regarding the alleged tampering. He states as follows in parts of paragraphs 11, 12, 13:-
"When they came back they both said that we could resume with our search and imaging of the computers...
Indeed my request was listened to in as much as nobody touched the computers except me and my assistant as we were taking them to the ground floor where the imaging took place.
I aver the due to the nature of storage of computer data it is prudent that when one does computer forensics all storage media are imaged. To this regard I imaged seven hard drives that were extracted from the computers that were found in the premises of Selkol 1983 (Pty) Ltd, one flash disk and one hard drive from a computer that was delivered from Moosa's Bargain City."
The deponent goes on to list the offices wherein the computers were located as described by the occupants of the said offices. He
continues as follows at paragraph 16
"I wish to state that even before we could remove the system boxes from the respective offices where the
44
computers were connected we had asked that the computers be switched off by the people who were operating them. This was to ensure that they would not turn around and claim that we deleted or tampered with the data in any manner. It was only after they had switched the computers off that we disconnected them and took the system boxes to the office in which the imaging took place."
Dave then proceeds to give further details regarding the whole process and continues in these words at paragraphs 22 and 26 and 27 respectively:-
"I verily aver that through my experience and based on the above testing done, it is impossible to alter any information or remove any information from the suspect's hard drive. The suspect's hard drives were returned to the original computers and those were tested to satisfy the suspect that the machine worked properly. This was performed in the presence of Mr Moosa and Shameem.
I must disclose that Mr. Moosa called my cell phone and left a message on Sunday, 15 April 2007 to complain that information had
been lost. I phoned Mr. Moosa back on the morning of Monday, 16 April 2007 and explained to him that there was no way that his information could have been changed or lost during the imaging process. I reminded him that we had checked the computers before we left the premises and that they were all working to the extend (sic) that Shameem had started doing business transactions.
I aver further that I had then advised him that if any information had been "accidentally" deleted subsequent to our imaging I would be happy to cut out the relevant files as he requested and to ship such files down to him. Surprisingly Mr, Moosa declined this offer of help and was unable to give any names of any files that had been
45
damaged, corrupted, altered, deleted. I verily aver that Mr. Moosa's contentions as they appear in the founding affidavit are spurious and designed to mislead the Honourable Court.
As it was correctly submitted by Mr. Viljoen, 1st applicant did not answer any of the above assertions at all. In my opinion, in light of 1st applicant's allegations regarding the alleged tampering and destruction of some of the files that were imaged, the averments made by Dave which were in my opinion, credible, merited a response the absence of which leaves me with little option but to find that respondents' version is to be believed. See the Plascon-Evans Paints' case (supra) p 635 wherein Corbett JA quoted with approval the principle laid down in the case of Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA 1155 at 1164.
Further in his reply, 1st applicant challenges the locus standi of 3rd respondent on the grounds that the latter has no personal knowledge of the taxes of any applicant. I however hasten to point out that 3rd respondent is a police officer who acts on information provided to him. I do not think that Section 46 envisaged a complaint made on oath to be necessarily premised on a police officer's personal knowledge. That in my view would be taking the provisions to absurd limits.
46
Over and above, it is also 1st applicant's case that he was denied the opportunity to draw an inventory of his property and items released to respondents.
He continues as follows in parts of paragraph 5.4 of the affidavit: -
"Whilst I insisted on drawing an inventory of the property and items released, to the best of my recollection as set out in
Annexures "OSM 1 and OSM 2", the 2nd to 8th Respondents refused to do so. I also wish to point out that, as the Respondents
came into my properties with a barrage of persons, it was extremely difficult to monitor watch and every item being removed from the properties by them...."
In response thereto, deponent to the answering affidavit avers as follows at paragraph 40 thereof:-
"I verily reiterate that the inventory of all the documents that were seized was taken and as I have seen that Mr. Moosa in trying to discredit our search is alleging that he was refused to take inventory I wish to annex the copies of same and mark them annexure "P3" collectively. These are in two different handwritings because both the 6th Respondent and Mr. Moosa were writing."
Annexure "P 3" collectively is indeed attached to the answering affidavit and it entails different lists of the property that was allegedly inventoried at the premises. However, as with the other averments contained in the answering and supporting affidavits, 1st applicant did not answer these assertions save to state that "the duty to prepare an inventory
47
is upon the police not the person being searched." This is in contradiction to and does not assist him with regard to his earlier
assertion that he was denied the opportunity to draw an inventory of his property.
In light of the above, I accordingly find that applicants' allegations that they did not know the contents of the affidavit used to obtain the search warrants cannot stand because they have been satisfactorily denied by respondents and were by large simply met with bare denials or in some instances not gainsaid at all.
It is also on the basis of these reasons that I also find that the denial by respondents of the facts deposed to applicants does not constitute a material dispute of fact necessitating the hearing of viva voce evidence by this Court. At any rate, respondents have not asked for same from this Court. In this regard see the case of Plascon-Evans Paints (Supra) p635 and other authorities quoted therein.
Finally argument was made regarding the initial inclusion of the 6th respondent in respect of whom respondents had brought it to the attention of Applicants' attorneys in writing in terms of a letter handed in to the Court and marked Exhibit A, that respondents were withdrawing their opposition of his claim. Respondents also tendered to return the material of 6th
48
respondent and to pay the costs occasioned to him minus the costs of the hearing.
During his submissions in Court, Mr. Patel argued that the very fact that 6th applicant was initially subjected to the search and seizure supports applicants' case that the whole process was spurious and unfounded.
Mr. Viljoen in turn argued that the withdrawal is not an illustration that a wrongful warrant was issued for the reason that to begin with, respondents never applied for a search warrant against 6th applicant.
The 6th applicant in these proceedings is cited as Moosa Cash & Carry (Pty) Ltd. In the affidavit (P 1), at paragraph 4, 3rd respondent lists the companies and business in respect of whom the warrants were applied as follows:
Building World (Pry) Ltd;
(b)Selkol 1983 (Pty) Ltd;
Moosa Holdings (Pty) Ltd;
OS Moosa T/A Bargain City; and
Selkol show Room.
Likewise, the search warrants "OSM 1" and "OSM 2" contain the names of the above mentioned 5 companies. In all the three documents, the name of the 6th applicant does not
49
appear. In my view, this fact renders nugatory the suggestion made on behalf of applicants that the search and seizure of 6th applicant's property and premises respectively, is per se proof that the application for the warrants was spurious and unfounded.
In my opinion, based on the contents of the three documents, the 6th applicant was mistakenly included in the process which never
concerned him from the start. I therefore believe that the step that was taken by respondents in offering to return the company's property and to tender costs incidental thereof was reasonable under the circumstances.
It is for all the above reasons that I find that applicants have not successfully made out their case for the relief sought and
accordingly dismiss the application with costs save for those occasioned by the joinder of sixth applicant.
N.MAJARA
JUDGE
For applicants : Mr. PatelMr. Hlalele
For respondents: Mr. Viljoen
50
