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IN THE NORTH GAUTENG HIGH COURT, PRETORIA

[REPUBLIC OF SOUTH AFRICA]

CASE NO: 2015/33791

NOT REPORTABLE

OF INTEREST TO OTHER JUDGES:NO

REVISED

11/10/2017

In the matter between:

CASINO ASSOCIATION OF SOUTH AFRICA                                            INTERVER

and

JOHAN HUMAN PIETERS                                                               1^st RESPONDENT

T/A  IMTERNET ENTERTAINMENT

THE PROVINCIAL COM M ISSIONER OF THE SAPS,                  2^nd RESPONDENT

LIMPOPO PROVINCE N.O.

THE CHAIRPERSON:                                                                      3^rd RESPONDENT

LIMPOPO GAMBLING BOARD

LIEUTENANT  M.S. MOGALE  N.O.                                                4^th RESPONDENT

RESPONDENT THE MAGISTRATE, MODIMOLLE N.O.                5^th RESPONDENT

And in re:

In the matter between:                                                            CASE  NO:  2015/33791

JOHAN HUMAN PIETERS                                                                        APPLICANT

T/A  INTERNET ENTERTAINMENT

and

MINISTER OF SAFETY AND SECURITY N.O                                1^st RESPONDENT

PROVINCIAL COMMISSIONER OF THE SAPS,                            2^nd RESPONDENT

LIMPOPO PROVINCE N.O.

THE CHAIRPERSON :                                                                     3^rd RESPONDENT

THE LIMPOPO GAMBLING BOARD

 LIEUTENANT  M.S. MOGALE  N.O.                                               4^th RESPONDENT

THE MAGISTRATE, MODIMOLLE  N.O 5^th RESPONDENT

JUDGMENT

MAVUNDLA.  J.,

[1] The applicant approached this Court by way of urgency in terms of Rule 6(12) of the Uniform Court Rules, seeking inter alia, an order that the matter be disposed of as one of urgency in terms of the rules; setting aside a search warrant issued on 29  April 2015 by the fifth respondent in respect of the applicant ' s business and directing the respondents and any other respondent who is in possessio n or control of the applicant's movable goods and monies listed in Annexure A hereto , to forthwith return and restore possession of the movable goods and monies that were removed by the fourth respondent and other members of the  SAPS (who were under control  of the second respondent) from the applicant's business, which are situated at the Internet Entertainment Lounge, shop 11, Sparrow Centre, corner Nelson Mandela Drive  and Meaning Street, Modimolle.

[2]The applicant in his founding affidavit stated that he seeks an order setting aside the search and seizure warrant dated 29 April 2015, issued by the fifth respondent in terms of ss20, 21, and 25 of the Criminal Procedure Act , of 1977 (" the CPA") in respect of the premises, which the warrant was executed at the premises on 30 April 2015, and that as consequences of the aforesaid relief he seeks a mandament van spolie  for the  immediate return of all items seized from the premises.

[3] It is common cause that on the 30 April 2015 the applicant ' s premises were raided and various items were removed by members of the SAPS, which items  are, inter  alia: 2 x 2 computers boxes with screens; 2 x Samsung ML 2160 printers; 1 x web cam; 9 x MSI E500 keyboards; 38 x MSI standard mousses; 15 MSI AP200 all I one computers;21 x MSI AP1921 all in one computers; 30 x PC electronic black boxes; undisclosed amount of cash and  control over the premises.

[4) Whereas the raid took place on the 30 April 2015, the applicant ' s affidavit was only deposed to on 14 May 2015 on which date the application was launched, calling upon the respondents to file their notice of intention to oppose not late r than 22 May 2015 and setting on the urgent roll the application for hearing on 2 June 2015.

[5]Seizure of one's goods is invariably invasive of a person's right to possession as conferred in terms of s14 of the Bill of Rights, and recovery thereof on urgent basis is permissible, depending on the circumstances of the case. In  casu,  the  applicant chose to direct letters through  his attorneys to  the respondent  seeking clarification as to the legality or otherwise of the authority in terms of which the search  and  seizure was issued. By so doing, in my view, the applicant lost his vantage point of urgency. The matter was therefore no longer, urgent. This must be seen also in the context that Rule 6(12) accords an aggrieved person, such as the applicant in casu, to abridge the  time frames of  service  and setting of the  matter  for hearing,  to  suit  his desert.  However,  in the matter of Gallagher v Norman's Transport Lines (Pty) Ltd[1].  the court held that:

"Rule 6(5)(a) of the Uniform Rules of  Court is peremptory. An application must be in   a form 'as near as may be in accordance with Form 2(a)'. Rule 6(5)(b) also compels. An applicant is bound to nominate a day, at least five days after service on the respondent, on or before which the respondent  must  notify  the  applicant  of intended oppositio n. Within 15 days after that notification, a respondent who does oppose must deliver opposing aff idavit s (Rule 6(5)(d)(11).No Rules says that any of the said obligations do not apply to an urgent application . Such an application is an 'application' in terms of Rule 6(5). The onl y qualificat ion is that  in an urgent  matter an applicant may amend 'the rules of the game' without asking prior  permission  of  the  Court; vide  Republikeinse  Publikasies  (Edms)  Bpk v  Afrikaanse  Pers Publikasies (Edms) (Bpk)[2]

But the intent of the Rules is that such amendment is permissible only in those respects and to the extent which is necessary in the particular circumstances. I use the word 'necessary' in its ordinar y signification, but naturally in relation thereto that evidence shows 'real loss or disadvantage enjoined by Rule 6(12) to dispose of an urgent matter by procedures 'which shall as far as practicable be in terms of these Rul es'. That obligation must of necessity be reflected in the attitude of the Court about which deviations it will tolerate in specific case.

The mere existence of some urgency cannot therefore justify an applicant not using Form 2(a) of the First Schedule to the Uniform Rules. The Rules do not tolerate the illogical knee-jerk  reaction that, once there is any amount of  urgency, that the form  of notice of motion may be jettisoned- and often that a rule nisi may be sought. The applicant must, in all respect, responsibly strike a balance between the duty to obey Rule 6(5) and the entitlement to deviate, remembering that the entitlement is dependent upon and is thus limited according to the urgency which prevails; vide  Luna Meubels Vevaardigers {Edms) Bpk v Makin and Another (t/a Makinn's Furniture Manufactures)[3], the philosophy of which has received wide support  in  other  Divisions.

On the practical level it will follow that there must be a marked degree of urgency before it is justifiable not to use Form 2(a). It may be that the time elements involved or other circumstances justify dispensing with all prior notice to the  respondent."  Rule 6(12) of the uniform Rules of Court deal with the aspect of urgency. The rule provides that the court may dispense with the form and service provided for in the Rules and may dispose of the matter at such time and place and in such manner and in accordance with such procedure as it may deem fit .

[6] According  to  the 5th   r espondent,  who does not oppose the application, but in her capacity as a magistrate, consider herself duty bound to place before this Court the circumstances under which she issued the warrant. She stated that on the 29 April 2015, the fourth respondent  appeared before her with an application for the issue of a sean::h warrant for the premises known as Internet Entertainment Lounge situated at Shop 11, Sparrow Centre, Corner Nelson Mandela and Meininger (Ahmad Kathrada) streets, Modimolle. After reading the affidavits attached to the papers, namely of Mothose of Limpopo Gambling Board, E Hlanwini, authorised undercover agent of the SAPS Masogo of the Limpopo Gambling Board, a letter from the OPP authorising the use of Hlongwini as an info rmer and undercover agent, Photos of the premises and video footage. She came to the conclusion that there are reasonable grounds that the premise and the items conta ined therein are used in the commission of an offence of unlawful or illegal gambling in contravention of the Limpopo Gambling Act and the National Gambling Act. She also considered the fact that the fourth respondent intended to use the items as evidence to prove the commission of an offence by the owners and the patrons of the premises.

[7] Casino Association of South Africa, under the same case number in casu, brought an application to intervene in these proceeding, cont ending that, as a voluntary Association representing the interest of licenced casino operator s has a direct and substantial interest in the outcome, in that illegal gambling affects the legal casino industry as a whole and has a direct and substantial interest in eradicating illegal gambling. There has, in recent years been a significant increase of illegal gambling, styled "internet cafes" or 'entertainment s lounges" . The increase of illegal gambling has drastica lly affected legalised gambling, as a res ult stifling the increase of such gambling entities.

[8]The grant of leave to intervene is a matter within the discretion of the Court. The  relief sought in the main application is essentially a mandament van spolie, namely the return of the items seized from the applicant ' s premises. In my view, the intervening applicant has not persuaded me that it has a direct and substantial interest in respect of the relief sought, namely the return of the seized items. The application to intervene therefore stands to be dismissed with costs.

[9] For the spoliation to succeed, the applicant must prove that he was in undisturbed possession and secondly that he was unlawfully deprived of such possession vide Ivanov v North West Gambling Board[4].

[10]In as much as a search and seizure warrant is intrusive to an individual' s right to privacy  and to  property[5], the Court must balance the interest of the individual   and that of society to curb crime , and where the dictates of justice demand, the  Court must refuse to restore possession and the applicant must bear the consequences of his illegal activity[6]

[11] General MS Mogale applied for a search warrant to the Magistrate of Modimolle stating that on information provided to him under oath that there are reasonable ground to believe that there are articles, identified in annexure " A" which:

"(a) are  on  reasonable  grounds  believed  to   be  concerned  in    the  suspected commission of:

(b) may afford evidence of the suspected commission of;  or

(c) are on reasonable grounds believed to be intended to be used in the commission of:

The offence(s) of contravention s78, 10 + 28 of National Gambling Act of 2004); s40, 61(2)(a)(62(2)(3),  69(1)(a)(b),  72,  80(2)(c) 91(3)  of  Limpopo Gambling Act;  and reasonable grounds for believing that such article are s6 of Prevention of Organized Crime Act 121 of 1998.

[12] It is trite that for the search warrant to be issued, the magistrate from whom such warrant is requested must make an objective assessment of the facts placed before him, and determine whether indeed there are reasonable grounds to believe that a crime is to be committed which requires investigation by the police. In my view, there was sufficient inform at ion placed before the magistrate , on the strength of which he decided to issue the warrant. It may well be so that the warrant referred to various statutory offences. It is not for the magistrate at that stage to determine which particular section is more apposite before issuing the warrant. That approach would defeat the whole objective of the

[13]When the warrant was executed, it is common cause that the applicant did not produce any casino gambling licence issued to it, nor attached one to its application papers in casu.

[14]In my view, the warrant of search and seizure it cannot be said it was a misdirection on the part of the fifth respondent in issuing it, and accordingly the application must be dismissed with costs.

[15]In the result the following order is issued:

A. INTERVENING APPLICATION

1. That the intervening application is dismissed with costs.

B. MAIN APPLICATION

1. That the application in the main is dismissed with costs.

N.M. MAVUNDLA

JUDGE OF THE HIGH COURT

DATE OF JUDGMENT                        :11/10/2017

APPLICANT'S ADV                             : ADV MF.J.ERASMUS

INSTRUCTED BY                               :VARDAKOS ATTORNEYS

RESPONDENTS' ADV                        :ADV V MASHELE

INSTRUCTED BY                               :STATE ATTORNEY

INTERVENER'S ADV                         :ADV HELENS S.C.WITH ADV VETTEN

INSTRUCTED BY                                :WEBBER WENTZEL

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