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FLYNOTES: CRIMINAL – Search warrant – Firearms Control Act – Application to set aside warrant – Supporting affidavit in warrant application did not establish commission of criminal offense – Sergeant’s interest disqualified him from administering oath – No evidence or statement under oaths before magistrate justifying issue of search warrant – Reliance on hearsay evidence when warrant was authorised – Search warrant declared invalid and set aside – Firearms Control Act 60 of 2000, s 115(4).

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

 

CASE NO: 21829/2023

 

In the matter between:

 

PROFESSIONAL PROTECTION ALTERNATIVES

(PTY) LTD                                                                                                     First Applicant

 

PPA GUARDING (PTY) LTD                                                                    Second Applicant

 

And

 

THE MAGISTRATE FOR THE DISTRICT OF

CAPE TOWN, MR VAN DER SPUY                                                         First Respondent

 

THE MINISTER OF POLICE                                                               Second Respondent

 

THE NATIONAL COMMISSIONER OF THE

SOUTH AFRICAN POLICE SERVICES                                                  Third Respondent

 

MAJOR GENERAL MAMOTHETI                                                        Fourth Respondent

 

LIEUTENANT COLONEL VISSER

HEAD: WESTERN CAPE FLASH                                                            Fifth Respondent

 

CAPTAIN KELVIN GEORGE SAMPSON

WESTERN CAPE FLASH                                                                       Sixth Respondent

 

Heard: 19 February 2024

Delivered: 22 April 2024

 

JUDGMENT

 

LEKHULENI J

 

INTRODUCTION

 

[1]    This is an application for the review and setting aside of a search warrant issued by the first respondent on 13 November 2023 in terms of the provisions of section 115(4) of the Firearms Control Act 60 of 2000 (“the FCA”). This application was brought in two parts. In Part A of the Notice of Motion, the applicants sought an interim order to have certain computer equipment returned which were seized pursuant to the impugned search warrant. In Part B, the applicants seek, in the ordinary course, an order reviewing the first respondent’s decision to authorise the search warrant, which culminated in the search and seizure of the applicants’ registers, firearms, and computer equipment. In addition, the applicants seek an order setting aside the search warrant with a punitive costs order against the second to sixth respondents.

 

[2]    On 12 December 2023, this court dealt with Part A of this application. It granted an order in which the court ordered the fourth to sixth respondents to hand over to the Registrar of this Court all copies and images of the computer equipment which the respondents had removed from the applicants' premises on 14 November 2023 and which the respondents or their agents may have made whilst the computer equipment was in their possession. Furthermore, the court ordered the respondents to return the computer equipment to the applicants by no later than 15 December 2023.

 

[3]    This court is now enjoined to consider Part B of the applicants' application: the review and setting aside of the search warrant. The applicants attack the impugned warrant on various grounds. The applicants contend that the supporting affidavit presented in the search warrant application did not establish the commission of a criminal offense or a reasonable suspicion that either of the applicants had committed any offense. Additionally, the applicants argue that the supporting affidavit fails to demonstrate a reasonable belief that the confiscated items may provide any evidence related to the alleged offenses set out therein.

 

[4]    The applicants further aver that the allegations in the affidavit in support of the application for the search warrant contain various allegations that were factually inaccurate and misleading and failed to disclose material information that would have influenced the first respondent ("the magistrate") in his decision in granting the request for the search warrant. Furthermore, the applicants also averred that the magistrate who issued the search warrant, did not apply his mind but merely rubberstamped what was placed before him.

 

[5]    While on the other hand, the respondents asserted that they acted within the prescripts of the law when they applied for the search warrant. The respondents deny that the averments made in the affidavit supporting the application for the search warrant were factually inaccurate and misleading. The respondents contended that all relevant and material information was appropriately placed before the first respondent when the application for a search warrant was considered. According to the respondents, the magistrate considered the facts placed before him and authorised the search warrant.

 

PRELIMINARY ISSUES

 

[6]    The parties raised several preliminary issues at the hearing of this application. I intend to address these preliminary issues before I consider the application on its merits. For the sake of brevity, I will address these issues ad seriatim.

 

Respondent’s further affidavit in terms of Rule 6(5)(e)

 

[7]    The respondents applied to file a further affidavit after the applicants filed their replying affidavit. The respondents averred that new averments and documents were attached to the replying affidavit, which were not previously dealt with in the founding affidavit. The respondents also asserted that the applicants had not given any explanation as to why the evidence was not made available to the court at the time when the founding affidavit was filed. The respondents’ further affidavit sought to address the alleged new averments raised in the replying affidavit. The respondents submitted that the applicants will not suffer any prejudice by the filing of the further affidavit and that the further affidavit is necessary to ensure that the matter is adjudicated upon all the facts relevant to the issues in dispute. The applicants opposed this application and contended that the averments in the proposed affidavit amounted to, amongst others, an inadmissible legal argument and should not be allowed.

 

[8]    It is trite that this court has a discretion in permitting the filing of further affidavits in the context of the fundamental consideration that a matter should be adjudicated upon all the facts relevant to the issues in dispute. I have carefully read the applicants' replying affidavit as well as the respondents' further affidavit, and I am of the view that there is no prejudice that the applicants will suffer if the respondents' application is granted. Furthermore, I agree with the submission of Mr O' Brien, the respondents’ Counsel, that all the disputed issues must be properly ventilated so that the court can make an informed decision in the matter. Therefore, the respondents' application in this regard, must succeed.

 

Can the State Attorney represent the Magistrate and the Police respondents in the same matter?

 

[9]    The first respondents (the Magistrates) did not oppose the matter. On 15 February 2024, Mr Golding from the State Attorney's offices, representing the Magistrate, filed a Notice to Abide on behalf of the Magistrate. On the same day, Mr Golding filed the Magistrate's Rule 53 Record. In that notice, Mr Golding described himself as an Attorney for the second respondent.

 

[10]    During the oral argument, the applicants raised several issues about Mr Golding, who represented both the Magistrate and the police respondents. The applicants questioned how both the Magistrate and the police respondents who applied for a search warrant before the same Magistrate could be clients of one attorney. Mr Katz, the applicants' Counsel, also impugned a letter from Mr Mahalatse Ranji, a Legal Administration Officer, on behalf of the Department of Justice and Constitutional Development, dated 14 February 2024, addressed to the State Attorney. In that correspondence, the State Attorney was instructed to file a Notice to Abide on behalf of the Magistrate. Counsel contended that it was inappropriate for an instruction to be given by the Department of Justice to the State Attorney on behalf of any Magistrate to take any action at all. It was argued that the Department was not Mr Golding's client; rather, the Magistrate was Mr Golding’s client.

 

[11]    It was submitted that these issues are serious and have important constitutional implications on a range of levels. Some of the constitutional issues raised were: Did Mr Golding have a conflict of interest or a potential conflict representing both the Magistrate and the police respondents? Did the State Attorney's office more generally have a conflict? Were the protocols and procedures for a Magistrate to obtain legal representation properly complied with? Are those procedures and protocols constitutionally valid?

 

[12]    This Court was not required to consider and resolve these issues in these proceedings. However, it was submitted that the Magistrate exercising his judicial discretion was required to be neutral, impartial, and independent and had to decide whether the intrusion into the applicants' rights to privacy was warranted. It was further contended that the Independence of the Magistrate meant, at the very least, independence from the parties that were in dispute before him. Mr Katz on behalf of the applicants submitted that all this Court needs to find is that the applicants had a reasonable apprehension that they did not enjoy a fair and impartial hearing by a neural and independent Magistrate. Counsel submitted that there was a reasonable apprehension that the Magistrate was not neutral and independent of the police. Accordingly, so the contention proceeded, a reasonable apprehension is sufficient to vitiate the search warrant.  

 

[13]    Mr O'Brien, on the other hand, submitted on behalf of the respondents that it was only after the pleadings were closed (after the applicants filed heads of argument and a day before the respondents' heads were due) that Mr Golding received instructions to file a Notice to Abide. Mr Golding only received instructions on 15 February 2024. Counsel submitted that Mr Golding was not present when the sixth respondent applied for the warrant and when the Magistrate issued it, and it cannot be said that he influenced the Magistrate.

 

[14]    I have considered the submissions of both parties on this issue, and I do not agree with the applicants' submissions. I accept that it was inappropriate, in my view, for the State Attorney to represent the Magistrate and the respondents together. I am also mindful that this court is not called upon to determine whether the Magistrate was impartial or not. However, I am of the view that it cannot be said that at the time when the warrant was issued, the Magistrate or Mr Golding was conflicted to create a perception of bias on the applicants. Mr Golding's involvement in this matter happened ex post facto or long after the fact.

 

[15]    As astutely noted by Mr O'Brien, Mr Golding was not present when the sixth respondent applied for the warrant and when the Magistrate issued it. Mr Golding had no dealings whatsoever with the Magistrate when the latter considered and issued the search warrant. Mr Golding only received instructions on 15 February 2024, long after this matter was instituted. There can, therefore, be no compelling argument about influences on the part of the Magistrate. In my opinion, the totality of the evidence points to the fact that the Magistrate was impartial and could not have been influenced by the State Attorney in exercising his judicial discretion. The alleged perception of bias (ex post facto) is also unsustainable because Mr Golding only came to the picture long after the warrant was issued. In my view, this preliminary point has no merit and must fail.

 

Commissioner of Oaths and Administration of the Oath

 

[16]    The applicants impugn the affidavit of the sixth respondent supporting the authorisation of a search warrant. The applicants aver that Sergeant David Recardo Ridloff (“Sergeant Didloff”) is a member of the SAPS, Provincial Flash, Western Cape and acted as the Commissioner of Oaths for the sixth respondent in his application to the Magistrate for a search warrant under section 115 of the FCA. Furthermore, the applicants submitted that Sergeant Didloff is one of the police officers, the sixth respondent indicated in his application to conduct the search and seizure operation. Sergeant Didloff is also listed in Annexure "A" to the search warrant (which sets out the details of members who will execute the search). Mr Katz submitted that Sergeant Didloff had an interest in this matter, and for that reason alone, the search warrant falls to be declared invalid and must be set aside as there was no statement under oath as required by section 115 of the FCA.

 

[17]    On the other hand, Mr O’Brien submitted on behalf of the respondents that the affidavit of the sixth respondent was properly commissioned as Sergeant Didloff was acting in the scope of his employment and had no pecuniary interest in the matter. Mr O'Brien implored the court to dismiss the preliminary point for lack of merit.

 

[18]    The Regulations Governing the Administration of an Oath or Affirmation under the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 provides for the commissioning of oaths. The Regulations require commissioners to be independent in the exercise of their duties. (see Royal Hotel, Dundee and Others v Liquor Licencing Board, Area No 26; Durnacol Recreation Club v Liquor Licencing Board, Area No 26 1966 (2) SA 661 (N)). Regulation 7(1) states that a Commissioner of Oaths shall not administer an oath or affirmation relating to a matter in which he has an interest. Regulation 7(2) states that sub-regulation (1) shall not apply to an affidavit or a declaration mentioned in the Schedule. The Schedule states, amongst others, that 'A declaration taken by a commissioner of oaths who is not an attorney and whose only interest arises out of his employment and in the course of his duty'. In other words, in terms of the Schedule, a Commissioner of Oaths cannot be said to have an interest in a matter if the attestation of the affidavit is only executed pursuant to his employment and in the course of his duty.

 

[19]    Ordinarily, the non-compliance with Regulation 7(1) renders the act of attestation void and deprives the document of validity as an affidavit. However, the commissioning of an affidavit for a warrant by a police officer does not mean that the relevant police officer has an interest in the application for an arrest or search warrant by another police officer. The problem only arises if the commissioning police officer has an interest in the matter. The question that begs in this matter is whether Sergeant did off had an interest in the application for the search warrant when he commissioned the affidavit of the sixth respondent or, did he commission the affidavit of the sixth respondent by virtue of his employment as a police officer?

 

[20]    In considering this preliminary point, I am of the view that the Supreme Court of Appeal decision in Kouwenhoven v Minister of Police and Others (888/2020) [2021] ZASCA 119 (22 September 2021), which effectively upheld the Full Bench of this Court [Kouwenhoven v Minister of Police and Others (1477/2018) [2019] ZAWCHC 124 (19 September 2019)] on Regulation 7(1)/Reg 7(2), is relevant and apposite in the present matter.

 

[21]    In that matter, the investigating officer (Warrant Officer van der Heever) applied to a Magistrate for a warrant of arrest under the Extradition Act 67 of 1961. In doing so, he prepared a supporting affidavit, as he was required to do. His colleague, Sergeant Von Hagen, acted as the Commissioner of Oaths when he deposed to his affidavit to support the arrest warrant application. The two officers were colleagues at Interpol, SAPS. The applicant (Mr Kouwenhoven) challenged the validity of the warrant in a review application and alleged that with regard to Mr Van der Heever's working relationship with the Commissioner of Oaths (Ms Von Hagen), the latter did not meet the requirement of an independent, unbiased, and impartial Commissioner of Oaths.

 

[22]    Warrant Officer Van der Heever explained to the court that he sat at a different desk from that of the Commissioner of Oaths and that the Commissioner of Oaths was not involved or had no interest in extradition matters save for acting as the Commissioner of Oaths to the affidavit requesting the issue of an arrest warrant. Warrant Officer Van der Heever further contended that the only reason why Sergeant Von Hagen commissioned his affidavit was that she is a SAPS officer who, because she happened to be stationed at another desk at Interpol Pretoria, was readily available to do so. He stated that Sergeant Von Hagen did not influence him in any way as regards the subject matter of the affidavit.

 

[23]    In concurrence with the full bench of this division, the Supreme Court of Appeal stated:

 

“[35]    The mere fact of employment by a person having an interest in the matter has not been regarded as constituting a disqualifying interest, save in the two cases involving police officers that were overruled in Rajah, and now possibly in Dyani. The implications of extending the concept of an interest in the matter under the regulations to employees would be far- reaching…….

 

[36]    The facts in this case fall squarely within item 2 of the schedule to the regulations. Sergeant van Hagen is stationed at the General Desk of the Interpol bureau in Pretoria and has no involvement in extradition matters. She had not been involved in the proceedings against Mr Kouwenhoven and said that she was unaware of the matter and had not even heard her colleagues discussing it. She commissioned W.O. van der Heever's affidavit because she is a police officer and was readily available to do so. The argument that she had an interest in the matter disqualifying her from doing so had no merit.”

 

[24]    Considering the guidelines from the above decision, I am of the view that the positions of Sergeant Ridloff and Warrant Officer Van der Heever are poles apart. In the instant case, Sergeant Didloff was not only attesting to the affidavit of the sixth respondent by virtue of his employment. Instead, he was involved in the search. Sergeant Didloff was aware of the matter as he had been assigned to execute the warrant with his colleagues. There is no evidence presented before this court suggesting that he was unaware of the matter and that he did not know that he had to execute the warrant when he commissioned the affidavit. Significantly, he was explicitly named in the sixth respondent's affidavit and named as one of the persons included in Annexure A to the search warrant, which contained the details of members who would execute the search. No evidence was presented in these proceedings that Sergeant Didloff was not involved in executing the search warrant. In my view, it was not competent for Sergeant Didloff to commission an affidavit of the sixth respondent in a matter in which he was involved. He had an interest in the matter. To this end, I agree with Mr Katz that when the Magistrate issued the search warrant, he, in turn, authorised Sergeant Didloff to conduct the search and seizure operation.

 

[25]    I accept that Sergeant Didloff was not precluded from commissioning the sixth respondent's affidavit merely because he was a fellow police officer. As stated in Kouwenhoven v Minister of Police and Others (supra), mere employment as a police officer does not mean that Sergeant Didloff has an interest in the application for a search warrant by his colleague. However, a problem only arises if the commissioning police officer has an interest in the matter.

[26]    As I see it, it cannot be said that as a Commissioner of Oaths, Sergeant Didloff, who attested to the sixth respondent’s affidavit, can be regarded as having no interest in an application for a search warrant when if the application is granted, he would have had the power to search the targeted premises and seize the listed items. In my view, Sergeant Didloff was keenly interested in the fate of the application for the warrant as he was scheduled to search and seize the items listed on the search warrant. He had a disqualifying interest in the matter. In the absence of any submission to the contrary, it can reasonably be accepted that Sergeant Didloff attended with other police officers the premises mentioned in the warrant to execute the search warrant, which he assisted in applying for. I repeat, in my opinion, Sergeant Didloff was disqualified from commissioning the affidavit of the sixth respondent in support of the search warrant application.

 

[27]    Section 115(5) of the FCA provides that a search warrant under section 115(4) read with (1) may only be issued if it appears from evidence under oath or on affirmation that there are reasonable grounds to suspect that anything referred to in subsection (2) is or may be on the premises or dwelling in question. As discussed above, Sergeant Didloff had an interest in the matter. His attestation of the sixth respondent's affidavit in support of the search warrant deprives the relevant document of validity as an affidavit. Thus, Sergeant Didloff's interest disqualified him from administering the oath to the sixth respondent. This rendered the issue of the search warrant invalid as it was not based on any evidence. Consequently, there was thus no evidence or statement under oaths before the Magistrate justifying the issue of the search warrant sought by the respondents in terms of section 115(4) of the FCA.

 

[28]    On this ground alone, the search warrant must be declared invalid and set aside. Ordinarily, this finding would lead to the end of the dispute. However, for the sake of completeness, I consider this matter on the merits. This approach, in my view, conforms with the Constitutional Court's guidance provided by Ngcobo J in S v Jordan & Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae) 2002 (6) SA 652 (CC) at para 21. In my view, this approach ensures that all the disputed issues raised by the parties in this matter are ventilated. I intend to follow it.

 

THE FACTUAL BACKGROUND

 

[29]    To fully comprehend the pertinent issues that must be determined and the view I take in this matter, it is necessary to summarise the applicants' version concisely and that of the respondents as gleaned from their respective affidavits.

 

The Applicants’ Case

 

[30]    Both applicants (first and second applicant) are private security providers who are registered with the Private Security Industry Regulatory Authority ("PSIRA") in terms of the provisions of the Private Security Industry Regulation Act 56 of 2001 (“the PSIRA Act"). The applicants aver that due to the nature of their respective businesses, the first and second applicants conduct their security operations through separate juristic entities. The applicants have a business relationship with each other and have certain clients in common. As its trading name suggests, the first applicant provides tactical response teams to its clients and deploys in high-risk situations and emergencies such as strikes and riots. The second applicant, as its registered name suggests, provides armed guards to its client’s business and residential premises and armed escorts for high-risk cargo transportation. Both applicants contend they render armed services to a large client base in the Western Cape.

 

[31]    The applicants aver that they are, and have since the inception of their respective businesses, been fully compliant with the requirements and regulations in terms of both the FCA and the PSIRA Act and regulations. Since 2018, several compliance inspections were conducted at the premises of the first applicant by SAPS members of the Firearms, Liquor and Second-Hand Goods ("FLASH"), a sub-department of the SAPS formed under the Department of Visible Policing, among others, for the purpose of firearms control. Pursuant to the inspections, it was recorded in the SAPS report that no shortcomings were identified and that all registers were in place, and that everything was in order. The applicants aver that an inspecting SAPS member has never found either applicant to be non-compliant with any provision of the FCA. They are both compliant with prevailing private security and firearm legislation and regulations.

 

[32]    The applicants aver that the sixth respondent, ostensibly on the instruction of the fourth respondent, conducted his own inspections at the premises of the first applicant on various dates in 2023, and the first applicant always fully cooperated with the enquiries and inspections of the sixth respondent. No discrepancies in firearms or ammunition registers nor any infringement of the FCA or any of the Regulations were ever discovered by the sixth respondent. Notwithstanding, the applicants aver that the fifth and sixth respondents remained unfazed in terrorising the applicants. The applicants contend that the respondents are determined to persist with their disruptive and unlawful operations against the applicants and their security officers.

 

[33]    The applicants stated that on 23 October 2023, the first applicant's firearms in possession of six of its on-duty security officers were confiscated at Killarney Gardens during a raid on the premises of the first applicant's client to whom it was contracted to provide security services. According to the applicants, no legally valid reason for confiscating firearms was ever provided. The firearms were confiscated by the sixth respondent and one Captain Ganief of FLASH on the instruction of the fifth respondent. The applicants further asserted that SAPS members conducted the raid under the command of Captain Muller of the Provincial Extortion Unit under the pretext that there was illegal abalone and/or cigarettes on the premises.

 

[34]    However, this has not been proven. To the applicant's knowledge, nobody was ever arrested for the illegal possession of cigarettes or abalone. After the raid at Killarney Gardens, the applicants provided the sixth respondent with all the information about the six officers whose firearms were seized. The applicants provided the sixth respondent with all documents in respect of non-permanent security officers whose services are regularly utilised by both the first and second applicants, as he requested. In addition, the applicants provided the sixth respondent with all information in respect of the six officers and also, in a correspondence, advised the sixth respondent to let the applicants know if the sixth respondent would like the applicants to add/takeaway or do anything different, and would do everything in their means to assist him. In other words, the applicants were prepared to do whatever the sixth respondent considered necessary to ensure that the applicants complied with the FCA and the relevant regulations.

 

[35]    The applicant further asserted that on 02 November 2023, a raid was conducted by the Anti-Gang Unit ("AGU") at the residential premises of Claude Edgar Martin (“Martin”), a PSIRA registered and fully compliant security officer with the necessary firearms competency certificates issued in terms of the FCA. The necessary authorisation permit had been issued to Martin by the first applicant on 2 November 2023 to possess two firearms which belonged to the first applicant. According to the applicants, the raid was conducted without a search warrant and a valid reason. Despite the raid, Martin has not been charged with any crime. No evidence suggests that the firearms were not under his direct control.

 

[36]    Notwithstanding, the firearms were confiscated from him. The applicants stated that the sixth respondent confirmed receipt via email of Martin’s personnel file from them on 01 November 2023. Thus, the sixth respondent was aware of Martin’s PSIRA compliance and his employment status with the first applicant prior to the raid on his residence.

 

[37]    The applicants further asserted that on 05 November 2023, a shipment of cigarettes transported under an armed security escort by the second applicant was confiscated by SAPS members near the Klapmuts turnoff on the N1. According to the applicants, the SAPS members were provided with the necessary SARS clearance documents in respect of the cigarettes and with the necessary authorisations and licenses in respect of the firearms of the applicants’ security officers. Despite this, four security officers in the service of the second applicant were detained. Ten firearms which were legally in their possession, and the property of the second applicant was confiscated for no valid reason. The confiscated firearms have not been returned even though no charges have been brought against any of the four security officers who were released after their detention.

 

[38]    Pursuant to the incidents on 23 October 2023 and 05 November 2023 described above, the applicants' Johannesburg-based attorneys, MJ Hood & Associates, addressed email correspondence to the sixth respondent on 07 November 2023 to ameliorate any legitimate concerns that the fifth and sixth respondent might have regarding the security operations of the applicants and the legality thereof and to avoid litigation. Amongst others, the applicants' legal representative addressed the concern regarding the applicants' independent subcontractor agreements which FLASH deem to be illegal. The legal representative also drew the sixth respondent's attention to the fact that there is no provision in the FCA or the PSIRA Act which prohibits the employment of independent security contractors on an ad hoc basis and that such employment cannot, therefore, be deemed to be unlawful.

 

[39]    The applicants asserted that no communication in answer to this correspondence was ever received from either the fifth or the sixth respondent. Instead, the respondents' response was the execution of a search warrant on 14 November 2023. The applicants averred further that despite the numerous meetings with FLASH officers, compliance inspections, and ad hoc inspections by the sixth respondent, the provision to the respondents of all conceivably relevant documents in respect of the applicants' operations should have put an end to the concerns of FLASH. As stated by the applicants, they were clearly compliant in all respects with the provisions of the FCA. No crimes were committed, and no further enquiry or investigation was warranted.

 

[40]    Notwithstanding the aforesaid, the applicants contended that the respondents persisted with obtaining a search warrant which had the effect of crippling the applicants' security operations under the pretext of gangsterism, illicit cigarette smuggling, organised crime, and of contravening the FCA. The applicants stated that when the sixth respondent deposed to an affidavit supporting a search warrant application, he was aware that the applicants were compliant with the FCA and PSIRA Act but did not disclose that to the Magistrate. Accordingly, the applicants contended that considering what was in the sixth respondent's knowledge when he deposed to his affidavit on 09 November 2023, the only reasonable conclusion is that he made these allegations and failed to disclosure material facts to induce the Magistrate to issue the search warrant which the respondents would not otherwise have obtained or have been entitled to.

 

[41]    Furthermore, the applicants asserted that from the tone and content of the affidavit deposed to in support of the search warrant application, it is apparent that the sixth respondent sought to mislead the Magistrate to induced him to issue the search warrant. The applicants stated that the sixth respondent attempted to create the impression in his affidavit that the applicants were somehow linked to organised crime and gangsterism, notwithstanding that there was no factual basis for this. In fact, all cigarettes confiscated during the Killarney Gardens raid were returned to the applicants' clients on 29 November 2023, and no charges were brought. Both applicants contend that the sixth respondent's pretext of criminality against the applicants is, therefore, highly misleading. Significantly, the applicants contend that the sixth respondent failed to provide the Magistrate with crucial details pertaining to the applicants' compliance history.

 

[42]    More pertinently, the applicant asserted that the sixth respondent failed to disclose to the Magistrate that he had personally conducted meetings with and inspected the first applicant's premises and its personnel files and that his inspections, enquiries, and investigations had always been cooperated with. That he failed to disclose that no discrepancies, shortcomings, or contraventions of the FCA and the regulations had ever been discovered during the first applicant's compliance inspections or during the sixth respondent’s ad hoc inspections.

 

[43]    In addition to the alleged material non-disclosures outlined above, the applicants asserted that the sixth respondent's affidavit supporting a search warrant application was based on an incorrect interpretation of the FCA and the regulations. The applicants stated that the affidavit of the sixth respondent did not disclose an offence and that there was no basis for the authorisation of the warrant. Furthermore, the applicants contended that the search warrant authority was couched in extremely broad terms and affords SAPS and DPCI the right to seize every kind of electronic equipment with storage capacity imaginable and this is precisely what they did. The applicants applied that the search warrant be set aside.

 

The Respondents case

 

[44]    The second to the sixth respondents (“the respondents”) opposed the applicants’ application and filed the necessary answering affidavit. In their answering affidavit, the sixth respondent (on behalf of the respondents) stated that he is a Captain in the South African Police Services stationed at Firearm, Liquor and Second-Hand Goods Control, Western Cape and that he is duly appointed as a Designated Firearms Officer in terms of section 124(2)(h) of the FCA. The sixth respondent stated that on 1 July 2017, he was appointed at the Directorate Priority Crime Investigation to initiate and assist with firearm investigations against security service providers linked to the underworld, firearm dealers illegally supplying firearms and ammunition to gangs and other high profile firearm investigations.

 

[45]    The sixth respondent further stated that on 23 October 2023, he and Captain Ganief were requested to assist Captain Muller of the Provincial Extortion Unit at a crime scene. There, they found six security officers in the employment of the first applicant. The six security officers had firearms registered under the first applicant and were escorting individuals with alleged illicit cigarettes. The firearms were lying on a table on the scene in one of the units.

 

[46]    According to the respondents, the said security officers were dressed in civilian clothing, and there was no form of identification to indicate that the first applicant employed them. Captain Ganief and the sixth respondent introduced themselves to the security officers. They requested the relevant documentation to ascertain whether the security officers were registered under PSIRA and whether they were authorised to be in possession of the firearms.

 

[47]    The security officers were asked for a written authorisation letter for the issuing of the firearms and could not provide. It later appeared from the information provided by the applicants at their offices on 23 October 2023 that the authorisation letters were issued by Claude Edgar Martin ("Martin") and Mogamat Tauriq Benito ("Benito"), who were also part of the group of six security officers. The respondent further stated that Martin and Benito could, however, not provide him with letters that they were authorised by the responsible person at the time when he requested such. They appeared to not appreciate what the duties of the authorised person of a security company were under the FCA and the relevant Regulations.

 

[48]    Subsequent thereto, Captain Ganief and the sixth respondent proceeded to the offices of the second applicant to enquire further about the employment and authorisation letters of the six security officers. The Director of the second applicant, Mr Walther Brown, provided the files of the security officers and indicated that all the security officers had written authorisation to issue firearms. It was discovered during that visit that each security officer had an authorisation letter in their files, which was issued on 1 February 2023 by A.H Landman, who was indicated as the responsible person.

 

[49]    The respondents asserted that the letters in question were, however, not signed by the security officers, acknowledging that the responsible person appointed them as the authorised person of the security service provider. In terms of the contract of employment of the security officers, they were independent contractors and not permanently employed by the second applicant.

 

[50]    On 30 October 2023, the respondent returned to the offices of the second applicant to conduct an inspection. Mr Brown, the Director of the second applicant, met them. Mr Brown informed the sixth respondent that the first and second applicants are two separate security service providers with different directors and are registered at PSIRA as two separate security service providers. Each of the service providers had their own responsible person. The firearms are registered in the name and institution code of PPA-Guarding and Tactical, respectively. In addition, Mr Brown indicated that he is the responsible person for the firearms of the second applicant. Mr Brown further indicated that he is in possession of a competency certificate. He also identified Mr Alwyn Landman ("Landman") as the responsible person for the firearms of the first applicant.

 

[51]    The sixth respondent then proceeded to the offices of the first applicant upon learning that the first and second applicants were two separate service providers, where he met with Landman and the attorneys of the first applicant. Mr Landman indicated that the security officers were employed by the first applicant. The sixth respondent immediately contacted PSIRA to ascertain whether the first and second applicants employed the six security officials. According to the sixth respondent, PSIRA confirmed that the security officers were only registered under PSIRA on 23 October 2023, on the day when the applicants' firearms were confiscated. The respondent averred that this was in contravention of the provisions of section 20 of the FCA, which requires a security officer to be in the service of the security service provider and in possession of a competency certificate when in possession of a firearm of the security service provider. He further observed that there were no records of wages paid to the six security officers when he assessed the files which were provided to him by Landman.

 

[52]    The sixth respondent further asserts that from the information provided, it appeared that Landman placed Martin and Benito in possession of the firearms and ammunition of the first applicant unlawfully and allowed them to issue firearms, ammunition, and authorisation permits to themselves and other security officers without them being in their employment or in possession of the necessary documents as required by the FCA and the Regulations. According to the respondents, Benito and Martin did not have valid authorisation to have the firearms and ammunition. Thus, the conduct of Landman as a responsible person was contrary to the provisions of section 120(1)(a) of the FCA. The security officers were thus in unlawful possession of the firearms and in contravention of the FCA, particularly the provisions of sections 3(1)(a) and 90 of the FCA, which provides that no person may possess a firearm unless he or she holds for that firearm a licence, permit or authorisation issued in terms of the FCA.

 

[53]    Furthermore, On Thursday, 2 November 2023, at approximately 20h20, an inspection was conducted by the AGU at the residence of Martin at 12 Avenue Florida, Ravensmead. The respondent stated that during the operation, it was discovered that the handgun safe at Martin's residence did not adhere to the requirements of the Regulations, as the safe was standing loose and was not bolted to a concrete/brick wall or floor. The safe further had a hole on the side of it through which the barrel of the Hand Machine Carbine protruded and was as such not complying with SABS standards. The AGU subsequently confiscated the safe. The AGU found four (4) firearms in possession of Martin that were kept in the safe, two of which belonged to the first applicant. 

 

[54]    According to the respondent, Martin did not have a written authorisation permit from the responsible and/or authorised person to be in possession of the first applicant's two firearms and ammunition. The respondents averred that Martin was thus in unlawful possession of the firearms and in contravention of the provisions of section 3(1)(a) and 90 of the FCA. The firearms, ammunition, documents and the safe found on the premises were confiscated and handed in at the Ravensmead Police Station and an enquiry was registered under 2/11/2023.

 

[55]    On Sunday, 5 November 2023, at approximately 14h00, the sixth respondent was summoned again to an operation in the Klapmuts policing area where a truck containing illicit cigarettes was confiscated. Four security officers escorted the truck in the employment of the second applicant who were found in possession of firearms belonging to the second applicant. Mr Brown is the responsible person for the second applicant. The security officers were issued firearms, ammunition, and authorisation permits by one of the other security officers, Tembisa Norman Zukani.

 

[56]    The sixth respondent asserted that they then requested PSIRA to confirm whether the security officers were employed by the second applicant. It appeared from the information provided that two of the security officers were not in the employ of the second applicant. The respondents stated that they observed that there were no records of wages paid to the four security officers when they assessed the files provided to them by Mr Brown, the person responsible for them. The respondents asserted that the inspection revealed that firearms were issued to the security officers who were not in the employ of the second applicant in contravention of the provisions of section 120(10)(a) of the FCA.

 

[57]    Pursuant to the above, on 13 November 2023, the sixth respondent approached the first respondent (the Magistrate) with an application to obtain a search warrant under section 115 of the FCA to conduct a search of the premises of the applicants and to seize, amongst others, all firearm and ammunition registers; all firearm used in the commission of an offence, all registers, receipt, and records related to the investigation and all files and documents of persons responsible for the firearms and ammunition and of security officers in their employ issued with firearms.

 

[58]    The respondents contended that the search warrant was sought because it appeared from the facts set out above that the firearms were not in lawful possession of the security officers. It was suspected that the applicants violated several provisions of the FCA. The registers on hardcopy and/or electronic records would have provided clarity regarding the suspected crimes and/or more information. This could only be obtained by way of a legally issued warrant. After consideration of the application and the information placed before him, the first respondent subsequently issued the search warrant.

 

Principal submissions by the parties

 

[59]    Mr Katz, for the applicants, submitted that in both affidavits in support of the search warrant and the answering affidavit, the sixth respondent alleges contraventions of the FCA and PSIRA Act. Counsel submitted that the sixth respondent sought to create the impression that the applicants, as private security providers, are involved in, suspected of, or linked to the underworld and the illicit supply of firearms and ammunition to criminal gangs.

 

[60]    It was Counsel’s submission that the applicants have complied with the FCA, the PSIRA Act and the relevant Regulations. In all the inspections conducted, the applicants were found to be compliant with the Act. Mr Katz submitted that the sixth respondent failed to provide a factual basis for these allegations, which the applicants have emphatically denied. Counsel further submitted that the conduct of the sixth respondent in this regard was dishonest and was evidently calculated to deceive the Magistrate into issuing the search warrant.

 

[61]    Regarding the failure of the Magistrate to participate in these proceedings, Counsel submitted that search warrants may only be issued after scrutiny of the evidence by the Magistrate. Relying on Goqwana v Minister of Safety NO and Others 2016 (1) SACR 384 (SCA), Counsel submitted that it could not merely be a rubberstamping exercise. Mr Katz submitted that in the replying affidavit, the applicants alleged that the Magistrate failed to apply his mind to the application for the search warrant, either properly or at all, and that he merely rubberstamped that which the sixth respondent had placed before him.

 

[62]    Counsel contended that the Magistrate was invited to file an affidavit before the hearing of this application explaining his reasons for having issued the impugned warrant. The latter failed to take up this invitation. To this end and relying on Tantoush v Refugee Appeal Board and Others [2007] ZAGPHC 191; 2008 (1) SA 232 (T) para 51, Mr Katz submitted that the Magistrate's failure to file an explanatory affidavit tilts the probabilities towards the applicants' version that he did not apply his mind. Instead, he acted as a mere rubberstamp of that which the sixth respondent placed before him. Counsel implored the Court to set aside the warrant with a punitive costs order personally against the fifth and sixth respondents (de bonis propriis).    

 

[63]    Mr O'Brien, on the other hand, submitted that the attack on the police officials, particularly the sixth respondent, was a ruse to distract this Court's attention from the real issues in this case. Counsel submitted that the applicants wanted to create an atmosphere of corrupt police officials, notwithstanding that the police officials, particularly, the sixth respondent acted in accordance with the powers conferred by the law. Mr O'Brien submitted that the sixth respondent acted bona fide when he applied for and obtained the search warrant. Relying on several authorities on search warrants, the provisions of the PSIRA Act and Regulations, the FCA and its purpose in particular, the preamble thereto, Counsel submitted that a fleeting perusal of the sixth respondent's authority in terms of the Act, particularly section 115 of the FCA makes plain that he has sweeping powers to give effect to the purpose of the FCA.

 

[64]    Mr O’Brien further submitted that the applicants believe that they are immune to inspections by FLASH and wish to dictate to FLASH when and how it should perform its functions under the FCA. Furthermore, Counsel argued that the applicants’ contention that no one has been arrested or charged regarding the incident of 23 October 2023 in unsustainable as the investigation is still underway. Mr O’Brien further submitted that the application for the search warrant was to facilitate the investigation. It was Counsel’s further submission that during the inspections conducted, it appeared from the documentation provided by the applicants that some security officers were not employed by the applicants and/or registered under the PSIRA. Thus, the applicants have contravened various provisions of the FCA.

 

[65]    Counsel stated that it appeared that the persons who were not employed by the applicants and who were further not duly authorised were issuing firearms that belonged to the applicants to themselves and to other persons. Furthermore, the respondents reasonably believed that the items listed in the search warrant were connected to the commission of the alleged offences. The items were further believed to be relevant to the investigations into the alleged offences. To this end, Counsel implored the Court to dismiss the applicants' application with costs.

 

ISSUES TO BE DECIDED

 

[66]    The crisp question that this Court is enjoined to consider is whether the search warrant authorised by the first respondent authorising a search against the applicants' premises should be reviewed and set aside. Expressed differently, whether the search warrant was obtained legally within the prescripts of the law.

 

RELEVANT LEGAL PRINCIPLES AND ANALYSIS

 

The legislative framework

 

[67]    This matter centres around the authorisation of a search and seizure warrant in terms of section 115 of the FCA. For the sake of completeness, section 115 provides as follows:

 

“(1) For purposes of any inquiry or investigation relating to the application of this Act and subject to subsection (4), the Registrar or any person authorised in writing by the Registrar may-

 

(a) at any reasonable time and without prior notice, enter any business or industrial premises; or

(b) at any reasonable time and with reasonable notice, enter any dwelling, on or in which anything relating to the subject-matter of the inquiry or investigation is or is suspected to be.

 

(2) The Registrar or person authorised may –

 

(a) inspect and search any premises or dwelling contemplated in subsection (1) and make such enquiries as may be necessary for purposes of the inquiry or investigation;

(b) examine anything found on the premises or dwelling which may have a bearing on the subject-matter of the inquiry or investigation;  

(c) request information or an explanation regarding such object from the owner or person in control of those premises or from any person in whose possession or under whose control anything referred to in paragraph (b) is found;

(d) make copies of or extracts from any book or document found on or in the premises or dwelling which may have a bearing on the subject-matter of the inquiry or investigation and request an explanation of such book, document or any entry therein from any person suspected of having knowledge thereof; and

(e) against the issue of a written receipt, seize anything on or in the premises or dwelling which may have a bearing on the subject-matter of the inquiry or investigation.

 

(4) Any power contemplated in subsection (1) may be exercised only –

 

(a) in terms of a warrant issued by a judge or magistrate; or

(b) without warrant by a police official contemplated in paragraph (a) of the definition of “police official” in section 1 if –

 

(i) there are reasonable grounds to believe that a warrant would be issued and the delay in obtaining the warrant would defeat the object for which the power is exercised; or

(ii) the person who is competent to do so consents to the exercise of the power.

 

(5)

(a) A warrant may only be issued if it appears from evidence under oath or on affirmation that there are reasonable grounds to suspect that anything referred to in subsection (2) is or may be on the premises or in the dwelling in question.

(b) The evidence must contain information regarding the –

 

(i) nature of the inquiry or investigation to be conducted;

(ii) reason for or suspicion which gave rise to the inquiry or investigation;

(iii) need for search and seizure in terms of this section; and

(iv) premises on which the warrant is to be executed.

 

[68]    It is trite that search and seizure warrants implicate at least two constitutional rights, namely, the rights to dignity and privacy envisaged in sections 10 and 14 of the Constitution. In Minister of Safety and Security v Van der Merwe and Others 2011 (5) SA 61 (CC) at para 35, the Constitutional Court observed that Safeguards are therefore necessary to ameliorate the effect of this interference.

 

[69]    Section 115(1)(a) of the FCA allows the members of police services, for purposes of an inquiry or an investigation relating to the application of the FCA, to enter any business or industrial premises at any reasonable time and without prior notice or at any reasonable time and with reasonable notice enter any dwelling on or in which anything relating to the subject-matter of the investigation is or is suspected to be. Section 115(2), amongst others, allows the police to inspect and search any premise or dwelling contemplated in subsection 1 and make such enquiries as may be necessary for purposes of the inquiry or investigation.

 

[70]    In giving effect to the powers under section115(2), section 115(3) of the FCA must be carried out with strict regard to decency and order. Section 115(4) gives authority to judicial officers to issue search and seizure warrants. The judicious exercise of this power by them enhances protection against unnecessary infringement. Judicial officers possess qualities and skills essential for properly exercising this power, like independence and the ability to evaluate relevant information to make an informed decision. (See S and others v Van Rooyen and Others (General Council of the Bar of South Africa intervening) 2002 (5) SA 246 at para 18.

 

Uniform for Security Officers

 

[71]    The sixth respondent asserts in his answering affidavit as well as in the affidavit supporting the application for the search warrant that several contraventions of the FCA and PSIRA Act were violated, hence the application for the search warrant. The sixth respondent contended that the six security officers in the employment of the first applicant were found escorting individuals with illicit cigarettes. The six security officers had firearms and ammunition and were dressed in private clothing. They did not have any uniforms or badges indicating that they were employed by the first applicant. According to the sixth respondent, this violates Regulation 13(1) of PSIRA Act which provided as follows:

 

“Every security business must, subject to this regulation, provide every security in its employee with sufficient, distinctive articles of clothing constituting a standard uniform of that security business if the security officer is required to render a Security Service as contemplated in paragraphs (a), (c) or (d) of the definition of security service contained in section 9(1) of the Act, unless the security officer only renders a service consisting of the protection or safeguarding of a specific natural person.”

 

[72]    In response to these allegations, the applicants asserted that their clients appointed them to provide protection and safeguarding of its truck drivers, and the reason for this was that the applicants' client had fallen victim to truck hijackings before in circumstances where they were transporting cigarettes. Due to the risk of injury and death involved in truck hijackings, which are, without exception, carried out by heavily armed gangs, the applicants instructed their officers to remove their uniforms and to wear civilian attire to render the officers less conspicuous to potential hijackers.

 

[73]    In my view, a plain reading of Regulation 13 reveals an exception to the general requirement that security officers need to be in uniform when performing security services as defined in the PSIRA Act. The exception applies to security officers who are safeguarding a specific natural person. Simply put, security officers do not need to wear their uniform when the security services they render consist of protecting or safeguarding a natural person.

 

[74]    Mr O'Brien submitted that on the applicant's own version, the applicants' six security officers did not safeguard a specific natural person. What they guarded was the safeguarding of its client's truck drivers. Counsel submitted that implicit in this is that the six security officers protected not only the truck drivers but also their client, who had fallen victim to truck hijackings before in circumstances where they were transporting cigarettes. Stated differently, Mr O’Brien argued, the officers protected the drivers, the truck, and the cargo.

 

[75]    While having a superficial attraction, I have some difficulty with this argument. It must be stressed that the sixth respondent conceded in his answering affidavit and in his affidavit supporting the application for the search warrant (presented before the Magistrate) that the six officers were safeguarding and protecting natural persons. The sixth respondent stated that when they met the six security officers, the officers were escorting individuals. It is not correct that they were guarding their trucks. On the contrary, it is common cause that the security officers were escorting the truck drivers in their trucks. As a result, it cannot be said that the said security officers violated the FCA Regulations.

 

Should a security officer be permanently employed before he/ she is issued with a firearm by a Security Service Provider?

 

[76]    The respondents stated as a ground for the application of the search warrant that four security officers found in possession of the applicant’s firearms were in their civilian clothes and were described as independent contractors. According to the sixth respondent, this was in contravention of section 20(5)(a) and (b) of the FCA, which provides that a security service provider may only issue a firearm to a security officer in its service who holds a competency certificate. As stated by the sixth respondent, the security officers were not linked to the first applicants’ employment at the time of the inspection.

 

[77]    Furthermore, the sixth respondent asserted that the responsible persons of the applicants placed Benito and Martin in possession of the firearms and ammunition of the first applicant unlawfully and allowed them to issue firearms, ammunition, and authorisation permits to themselves and other security officers without them being in their employment or possession of the necessary documents as required by the Act and the firearms regulations. In the opinion of the sixth respondent, both Benito and Martin were in possession of firearms and ammunition without valid written authorisation. To this end, the sixth respondent contended that the applicants contravened section 120(10)(a) and (b) of the FCA, which provide that it is an offence to sell or give possession of a firearm or ammunition to a person who is not allowed in terms of this Act to possess that firearm or ammunition.

 

[78]    I have some difficulty with the proposition expressed by the respondents. It must be emphasised that it was common cause that the six security officers had valid competency certificates as envisaged in section 20(5)(a) of the FCA. The sixth respondent was provided with these certificates prior to the raid on 14 November 2023. The sixth respondent did not dispute receipt of the competence certificates of the said officers. As correctly pointed out by Mr Katz, apart from his statement pertaining to the requirements in respect of the competency certificate, the sixth respondent did not allege anywhere in either of his affidavits that any of the officers who were found in possession of the first applicants' firearms were as a fact not in possession of valid competency certificate. They had the necessary competence to possess firearms as required by the Act. In my view, it cannot be suggested that this allegation supports a reasonable suspicion that a crime has been committed.

  

[79]    As far as the alleged infringement of section 120(1)(a) of the Act is concerned, the sixth respondent based his contention on the ground that the FCA requires that the service provider must employ a security officer before the service provider can place him in possession of a firearm. In my view, this cannot be correct. Section 20(5)(b) of the FCA provides as follows:

 

“A security service provider which holds a license to possess a firearm for business use may only provide the firearm to a security officer in its service who holds a competency certificate.”

 

[80]    The FCA does not define the words ‘in its service’. The respondents interpret the phrase ‘in its service’ to mean in the employment of the service provider concerned. Mr O'Brien submitted that upon a proper interpretation of the provisions of section 20(5)(a) and (b) of the FCA, it can only refer to employees in the applicants' service and not to independent contractors. Counsel argued that this is so because of the purpose of the Act and the powers conferred on police officials to enforce it, which envisaged strict control over the management and handling of firearms used for business purposes by security service providers. If the legislature intended to include independent contractors, so the contention proceeded, the Act and regulations would have included the wording simply because an employer like a security service provider would have no control over how an independent contractor would use the former's firearms.

 

[81]    In my view, a distinction must be drawn between in its service and in the employment of. Crucially, as correctly contended by Mr O'Brien, our Constitution requires a purposive approach to statutory interpretation. (See National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (1) BCLR 39 (CC) at para 24). The starting point, in my view, in interpreting section 20(5)(b) of the FCA should be section 39(2) of the Constitution, which enjoins courts when interpreting any legislation and when developing the common law to promote the spirit, purport, and objects of the Bill of Rights.

[82]    Furthermore, in interpreting the above sections, this Court must consider the principles highlighted by the Supreme Court of Appeal in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at para 18, where the Court stated that the interpretation of legislations or documents must be made considering the language of the Act, its context and purpose together with the potential consequences of different interpretation. Mindful of the judicial injunction discussed above, I am of the firm view that the words (in its service) in the section 20(5)(b) of the FCA must be given their ordinary grammatical meaning. (see Standard Bank Investment Corporation v Competition Commission and Others [2000] ZASCA 20; 2000 (2) SA 797 (SCA).

 

[83]    The section specifically states that the security officer must be in the service of the service provider. In my view, in its service, does not envisage employment. There is a difference between 'in its service' and ‘in the employ of another person’. In its service, in my view, is akin to a contract for service (locatio conductio operis). The object of the contract for service is the performance of a certain specified work or the production of a certain specified result. It is the product or the result of the labour which is the object of the contract. (See Brassey Employment and Labour Law (2000) at B1:1. In this type of agreement, the individual is considered an independent contractor responsible for his own taxes and benefits.

 

[84]    While on the other hand, the contract of employment (location conduction operum) of another person envisages an employment contract that involves direct control and supervision of the individual. An employee in terms of the contract of employment is subordinate to the will of the employer. An employee works under a contract of employment, whereas a contract with an independent contractor is one for service. (see Brassey M ‘The nature of employment’ (1990) ILJ 889 at 896).

 

[85]    Significantly, when the FCA was enacted, the legislature was aware of the applicable labour legislation. If the legislature intended that the security service provider, which holds a license to a possess firearm for business use through its responsible person, may only provide the firearm to a security officer in its employment, it would have clearly expressed its intention in that fashion. Considering the findings made above, I am of the view that permanent employment of a security officer by a security service provider is not required before the officer is deemed to be in the service of the latter and before such officer may lawfully be provided with a firearm for use in the execution of his duties.

 

[86]    In my view, to hold otherwise would lead to an absurd result. There may be instances when a security service provider needs the services of security officers with competency certificates to assist in a specific event that is scheduled for a day. In such a case, it cannot be expected that the security service provider must employ the security officer permanently before the service provider can issue him with a firearm. In my view, the suggestion that such security officers must be employed permanently before the service provider can provide them with firearms is untenable and is not what the legislature intends. As a result, the argument made in the affidavit of the sixth respondent in support of the search warrant that firearms were issued to security officers who were not in the permanent employment of the applicants in contravention of FAC, particularly section 120(10)(a) cannot be correct. These officers had competency certificates and were lawfully issued with the firearms.

 

Should the authorisation letters be signed by the recipients?

 

[87]    The sixth respondent in the application of the search warrant and in the answering affidavit, frowned at the fact that in the Killarney Garden incident, the respondent requested Benito and Martin to provide him with the letter of appointment as authorised persons to issue a firearm permits and ammunition to other security officers and both could not provide him with a written authorisation letter. The sixth respondent stated that because the security officers could not provide clarity regarding their employment, it was directed that their firearms be seized from them as well as their permit authorisation book.

 

[88]    It is not in dispute that on further investigation, at the applicants' premises, the sixth respondent was furnished with the authorisation letters of the two security officers. However, his only concern was that the appointment letters authorising the two officers were unsigned by the two officers, acknowledging that they were appointed as authorised persons of the applicant. The respondents also frowned at the fact that the security officers were only linked to the applicant’s employment under PSIRA on 23 October 2023 and that the entries were however backdated to indicate that the six security officers were in employment from 1 October 2023. The sixth respondent however conceded that he was furnished with the delegation letter in respect of Benito and Martin on 23 October 2023; however, in his view, these delegations are invalid because they were issued on 23 October 2023 and were not signed by the authorised person acknowledging that they have been appointed. In response to the applicants' averments that the FCA does not require a signature by the authorised person for the authorisation to be valid, the sixth respondent asserted that an unsigned document cannot be relied upon; the law is quite clear in that regard. According to the respondents, there would be no authorisation without a signature.

 

[89]    In my view, the sixth respondent unfortunately misunderstood the provisions of the FCA. It is not a requirement for a security officer who is authorised to issue a firearm permit to sign and acknowledge that he is appointed as an authorised person of the security service provider. As Mr Katz correctly noted, Regulation 21(2)(f) of the FCA makes it obligatory for the responsible person, that is, the person who holds the license on behalf of the juristic person (the security service provider), to sign the letter of delegation to the authorised person to issue firearm permits. In this matter, it is not in dispute that the delegation letter to the two authorised persons (Benito and Martin) was signed by Mr Landman, the responsible person for the first applicant.

 

[90]    Mr Landman is the holder of the licenses in respect of the firearms found in possession of the six officers at Killarney Gardens. He signed his delegation as envisaged in section 21(2)(f) of the FCA. No provision in the FCA makes it obligatory for the authorised person (Benito and Martin) to sign a delegation letter to acknowledge such authority. Furthermore, as correctly pointed out by the applicants, there is no generally applicable requirement at common law that documents must be signed to be valid except where it is provided for in a statute like section 2(1) of the Alienation of Land Act 68 of 1981.

 

[91]    Notwithstanding, I am of the view that it should be a salutary exercise for the authorised security officers to sign to acknowledge the authorisation letter. However, a failure to sign does not make it an offence. Thus, the affidavit supporting the application for a search warrant does not disclose any contravention of the legislative requirement, as the requirement of signing only applies to the delegation letter issued by the responsible person to the authorised person. Simply put, the letter of authorisation does not need to be signed by the authorised person. The person responsible for representing the juristic person must sign it, as envisaged in section 21(2)(f) of the FCA. In my view, had the Magistrate diligently applied his mind to the facts and relevant legislation, he would not have issued the search warrant. Unfortunately, despite being challenged to do so, the Magistrate did not file an explanatory affidavit of the facts he considered when he granted the application for a search warrant. I find this regrettable.

 

[92]    I am mindful of the argument raised by the respondents that the permits issued to the security officers did not comply with the Regulations, amongst others, in that the full names and reasons why the security officer had possession of the applicant's firearm were not specified. While I accept that there were some shortcomings in the permits issued to the security officers, I am of the opinion that there was substantial compliance with the Act. Importantly, the applicants have always committed to cooperating with the respondents to ensure compliance with the Act. The respondents did not challenge or dispute this. The impugned permits specify the initials and surname, ID number, PSIRA number, the type of the firearm issued and the period it was issued. The permit issued to Martin also indicated that the firearm was issued for escorting the vehicle. As previously stated, in my view, there was substantial compliance with the Act.

 

[93]    The submission that the applicants contravened section 3(1)(a) and section 90 (possession of firearms and ammunition without a licence or permit) of the FCA are unsupported. The security officers had certificates of competence and lawfully possessed the firearms and ammunition in question. Significantly, the applicants have made it very clear to the respondents that they are committed to work within the confines of the law. They have expressed their willingness personally to the sixth respondent and through their legal representative to cooperate with the respondents. I appreciate that the respondents must be supported in performing their duties to curb crime in our Country and in investigating firearms against security service providers linked to the underworld. However, in the circumstances of this case, I cannot find any fault on the part of the applicants.

Reliance on Hearsay evidence when the search warrant was authorised

 

[94]    I have also observed that the sixth respondent relied on hearsay evidence in his application for a search warrant. Mr O'Brien argued that it is common ground that on 2 November 2023, a raid was conducted by the Anti-Gang Unit, which found firearms in possession of Martin, one of the security officers, which belonged to the first applicant. In response, the applicants denied that Martin was in unlawful possession of the first applicant's firearm. In my view, this was not common cause. The evidence of the sixth respondent on this aspect, when he applied for the warrant, was predicated on inadmissible hearsay evidence. The sixth respondent referred to an operation that was conducted by the Anti-Gang Unit at the premises of Mr Martin, one of the applicants' security officers. The sixth respondent was not present when the alleged raid took place. He relied on the evidence of Sergeant April, who allegedly attended the operation. A confirmatory affidavit of Sergeant April was not filed at the time the search warrant was authorised.

 

[95]    According to Sergeant April, they found a firearm safe of Martin loose and not bolted on the wall and did not adhere to the SABS standard. As previously stated, the sixth respondent was not in attendance at that operation and the confirmatory affidavit of Mr April was not filed to confirm these allegations. From the record, it is not clear why a confirmatory affidavit of Sergeant April was not attached. From the Rule 53 record filed, there is nothing suggesting that this hearsay evidence was ever considered in terms of section 3(1) of the Law of Evidence Amendment Act 45 of 1988. In my view, the first respondent erred in accepting hearsay evidence to authorise the search warrant. I have observed that Sergeant April only filed a confirmatory affidavit to the answering affidavit of this application on 29 January 2024 long after Part A of this matter was heard and decided.

 

[96]    In any event, the alleged contravention did not appear in Annexure C to the search warrant which stipulated the offences which were being investigated. Furthermore, the status of Martins' personal safe does not constitute a contravention on the part of the applicant. I agree with the applicant's view that the fact that the alleged contravention is not stated as an offence in the search warrant, which is being investigated, renders these allegations irrelevant to the sixth respondent's investigation. Thus, the search warrant could not have been granted on the strength thereof. In my view, the authorisation of the search warrant in this circumstance, was unwarranted.

 

Are the applicants involved in illicit dealings?

 

[97]    The applicants contended that there is no truth in the sixth respondent's allegations that it is involved in illicit dealings and that its security officers escorted illicit cigarettes. In my view, the impression or insinuation created by the sixth respondent that the applicants are involved in gangsterism, and illicit cigarette smuggling is not borne out by the facts. I am mindful that in the further affidavit filed, the sixth respondent denied that he made allegations that the applicants were involved in gangsterism or linked to gangsterism. The sixth respondent contended that in the answering affidavit, he referred to what he was generally appointed to do at DPCI, which included firearm investigations against security service providers linked to the underworld and other firearm-related investigations. He stated that no allegations were directed against applicants in relation to gangsterism.

 

[98]    I have carefully read the sixth respondent's affidavit supporting the authorisation of a search warrant and, in my view, paragraphs 16 and 17 of his affidavit, when read contextually, create the impression that the applicants are involved in such activities, hence, as a police officer appointed to deal with such cases, he had to conduct raids on the various occasions mentioned in the affidavit and discovered contraventions of the FCA. The sixth respondent did not qualify his statement that, to his knowledge, the applicants were not linked to the underworld but that he was investigating them for the contravention of the FCA. I accept that no allegations were specifically directed against applicants in relation to gangsterism. However, the reading of the affidavit suggests that the applicants were some of the security service providers that the sixth respondent had to investigate, particularly a security service provider who is involved in illegal activities in the underworld.

 

[99]    There is nothing in the affidavit filed by the sixth respondent in support of his application for the search warrant demonstrating that the applicants are involved in gangsterism or that they are linked to illicit cigarette smuggling. In my view, the inference or insinuation created by the sixth respondent is without any factual basis. This is so because the respondents have, on various occasions, inspected the applicants' premises and confirmed that the applicants complied with the FCA, the PSIRA Act and the relevant Regulations.

 

[100]    Crucially, the applicants asserted that neither of the applicants had ever been linked to or investigated for alleged links to gangsterism. The applicants further stated that neither of the applicants have ever negligently lost a firearm under their control, nor have any of their firearms ever been stolen. The applicants stated that the firearms in their control have never been used in the commission of any offence. On the contrary, the applicants averred that it is a well-known fact that they (the applicants) regularly assist both SAPS and local law enforcement in their fight against crime in general and against gangsterism and organised crime in the Western Cape in particular.

 

[101]    The respondents have not challenged the applicants on these allegations. If, indeed, the applicants were engaged in the underworld or gangsterism and were being investigated for such crimes, I would have expected the respondents to have challenged the applicants on these allegations. The respondents had an opportunity to dispute these allegations in the further affidavit, which this Court has allowed, but they did not dispute the applicants’ allegations. In my opinion, the affidavit of the sixth respondent sought to create the impression before the Magistrate that the applicants, as private security service providers, are involved in or linked to the underworld and in the illicit supply of firearms and ammunition for criminal acts.

 

Is the impugned Search warrant intelligible?

 

[102]    Lastly, even if I err, in respect of the findings made above, I am of the view that the search warrant is strikingly broad and too general, and its terms are not that reasonably clear. The following reasons bear out this finding. As stated in Minister of Safety and Security v Van der Merwe and Others 2011 (5) SA 61 (CC) at paras 55 -56, a valid search warrant is one that, in a reasonably intelligible manner:

 

(a)    states the statutory provision in terms of which it is issued;

(b)    identifies the searcher;

(c)    clearly mentions the authority it confers upon the searcher;

(d)    identifies the person, container or premises to be searched;

(e)    describes the article to be searched for and seized, with sufficient particularity; and

(f)    specifies the offence which triggered the criminal investigation and names the suspected offender. (emphasis added)

 

[103]    In Thint (Pty) Ltd v National Director of Public Prosecutions & Others; Zuma v National Director of Public Prosecutions and Others 2009 (1) SA 1 (CC), the court set out the duty of a judicial officer to exercise his discretion to authorise a search in a way that protects the individual's right to privacy. Once the decision to issue the search warrant has been made, the judicial officer will ensure that it is not too general or too broad and that its terms are reasonably clear. The court further confirmed that the validity of warrants must be assessed both in the light of the common law principle laid down in Powell NO and Another v Van der Merwe and Others 2005 (5) SA 63 (SCA) that a warrant must convey intelligibly to both searcher and the ambit of the search it authorises. The court went on to say that this approach would effectively require every warrant to be perfectly tailored so that any person searched would have a complete understanding of the scope of the search in the light of their subjective mental capabilities and education.

 

[104]    In my view, the search warrant in this matter was couched in very broad terms. It was too general in its description of the articles which the police were authorised to seized. For the sake of completeness, in addition to other items, the warrant in the present matter authorised the seizure of the following:

 

“Electronic storage devices like laptops, computers and servers (but not limited to the aforementioned) use for storage of information, correspondence, communication etcetera which may afford evidence of the suspected offences or activities related to the suspected offences.” (my emphasis)

 

[105]    I accept that the applicants are juristic persons however, I am of the view that the respondents must have identified the information they sought as precisely as possible to limit the inroads upon the applicants’ privacy. The italicized words in the above excerpt indicate that the category of articles that had to be seized was strikingly broad. Crucially, the electronic storage devices themselves sought to be seized would not provide any evidence of the alleged offences. It was the information stored thereon which was the focus of the investigation. See Oosthuizen v Magistrate for the District of Hermanus and Others 2021 (1) SACR 278 (WCC) para 20. It is not limited to what is being investigated as appeared in annexure C of the warrant.

 

[106]    The non-limitation clause, ‘but not limited to the aforementioned,’ set out in the warrant is so broad to include almost any imaginable electronic device. It does not identify or describe the items to be searched for with sufficient particularity. It does not restrict or limit the seizure of devices envisaged in Annexure B of the warrant nor identifies the material to be seized which might have a bearing on the suspected offence. See Oosthuizen v Magistrate for the District of Hermanus and Others (supra) para 20. Significantly, the warrant uses the catch-all phrase “etcetera” which in my view, is open-ended and gave the police mentioned in the warrant a free rein or carte blanche power to size whatever articles or devise they deem necessary even items not relevant to the investigation of the matter.

 

[107]    Furthermore, the fifth bullet point in Annexure B dealing with items to be seized includes the following description: All files and documents of persons responsible for the firearm and ammunition and of the security officers in their employment issued with firearms. As pointed out by the applicants, the breadth of this description is overwhelming. It suggests that leave packages, pension issues, time sheets, and personal issues of the most intimate kind are included in this bullet point. This clause in my view, is strikingly broad and is constitutionally objectionable. Consequently, I am of the firm view that the impugned search warrant is excessively broad and fails to describe the articles to be searched for with sufficient clarity, and it must be set aside.

 

COSTS

 

[108]    As far as costs are concerned, Mr Katz submitted that the fifth and the sixth respondents were responsible for the abuse of power and have acted in bad faith. They never really intended to investigate the applicants. According to Mr Katz, their mission was to harass and intimidate the applicants for reasons best known to them. Mr Katz further submitted that the fifth and the sixth respondent should be ordered to pay any cost order granted against the police respondents in their personal capacities on an attorney and client scale. Mr O Brien, on the other hand, submitted that the applicants did not ask in their notice of motion nor their application to the High Court in Pretoria for a punitive costs order against sixth respondent. In an opportunistic manoeuvre by labelling the sixth respondent as a liar who was performing his statutory duties is beyond logic.

 

[109]    It is a trite principle of our law that a court considering an order of costs exercises a discretion and that the court’s discretion must be exercised judicially. Ferreira v Levin NO and Others; Vreyenhoek and Others v Powell NO and Others [1996] ZACC 27; 1996 (2) SA 621 (CC); The court is expected to take into consideration the peculiar circumstances of each case, carefully weighing the issues in each case, the conduct of the parties as well as any other circumstances which may have a bearing on the issue of costs and then make such an order as to costs as would be fair in the discretion of the court.

 

[110]    To this end, I agree with the view expressed by Mr O’Brien, that courts are loathe to make costs orders against public officials when executing their duties. Courts will only do so when there are mala fides on the part of such an official. I am of the view that this is not a matter that warrants granting costs personally (de bonis propriis) against the fifth and sixth respondents. However, I am of the view that the second to the sixth respondents must pay the costs of these proceedings.

 

ORDER

 

[111]    In the result, the following order is granted:

 

[111.1]    The respondents’ application in terms of Rule 6(5)(e) is hereby granted.

 

[111.2]    The magistrate’s decision of 13 November 2023 is hereby reviewed and set aside.

 

[111.3]    The search warrant issued pursuant to the Magistrate’s decision on 13 November 2013 is hereby reviewed and set aside.

 

[111.4]    The second to the sixth respondents are ordered to pay the costs of this application including the costs of two Counsels and the reserved costs of 12 December 2023.

 

LEKHULENI JD

JUDGE OF THE HIGH COURT

 

APPEARANCES

 

For the Applicants:         Mr Katz SC

                                       Mr Ferriera

Instructed by:                  Lidell, Webber & Van der Merwe Inc

                                        52 Broad Road

                                        Wynberg

                                        Cape Town

For the Respondents:      Mr O’Brien

                                         Ms Mokhoaetsi

Instructed by:                    The State Attorney

                                         22 Long Street

                                         Cape Town

 

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