- Van Rooyen and Another V Minister of Police 2019(1) SACR 349 (NCK)
The main characters in this legal drama are the following (note that the particulars of some of them are not mentioned in the judgment per se infra, accordingly Pollex found it on the Internet):
1. First applicant: Mr M M B van Rooyen;
2. Second applicant: Mrs M E van Rooyen;
3. Col Perumal attached to the Hawks in Kimberley: The investigating officer;
4. Lt-Col Fernando Luis attached to the Hawks in Kimberley: He administered the oath in respect of Col Perumal’s affidavit, that was used in obtaining a search warrant;
5. First respondent (Afrikaans: “verweerder”): Minister of Police;
6. Second respondent: Lt-Col W Vermeulen (station not mentioned), together with eight other police officials (all named in the warrant), executed the said warrant at the premises of the Van Rooyen couple supra, situated at 6 Schoeman Street, Kuruman in the Northern Cape; and
7. Third respondent: Col N van Heerden (station not mentioned), in his capacity as a justice of the peace (Afrikaans: “vrederegter”), issued and authorised the search warrant concerned under the provisions of section 21 of the Criminal Procedure Act 51 of 1977 (“the CPA”).
According to Col Perumal, a section 252A of CPA under-cover operation was launched in the Northern Cape in respect of alleged illegal online gambling.
One such operation ultimately led to the search as explained in the “introduction” supra. During the search, the police seized (Afrikaans: “beslaggelê op”) accounting records whether in electronic and hard copy; bank deposits, book slips, counterfoil, print-outs; bank withdrawal slips/counterfoil/printouts; and computers and computer equipment.
After the seizure, both Mr and Mrs Van Rooyen were arrested and appeared in court.
The Van Rooyen couple thereupon approached the High Court in Kimberley (“the High Court”) for an order setting aside the said warrant, and the return of all seized items to them.
During the hearing before the High Court, the said warrant was attacked on a number of grounds, namely -
1. Conflict of interest: It was contended on behalf of Mr and Mrs Van Rooyen that the basis on which the warrant was issued, is conflicted because Col Perumal and the commissioner of oaths who administered the oath in respect of the latter’s affidavit namely, Lt-Col Luis, are attached to the same SAPS unit.
Response by the High Court: Regarding this contention, the High Court referred to the “Regulations governing the administering of an oath or affirmation” made in terms of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963, as it appears in Government Notice (GN) No R 1258 dated 21 July 1972 (as amended) and published in Government Gazette (GG) No 3619 (also) dated 21 July 1972. According to regulation 7(1) of this GN, “a commissioner of oaths shall not administer an oath or affirmation relating to a matter in which he or she has an interest”. However, according to the First Schedule of this GN, “a declaration taken by a commissioner of oaths … whose only interest therein arises out of his or her employment and in the course of his or her duty”, is exempted from the provisions of regulation 7(1) supra. According to the High Court, Col Luis is such a latter person. Consequently, this contention by the Van Rooyens failed.
Note: For a detailed discussion of GN No R 1258 supra, refer to Ask Pollex in Servamus: July 2008.
2. Jurisdictional facts: The Van Rooyens further contented that Col Van Heerden did not apply his mind to the information at his disposal when authorising the warrant.
Response by the High Court: According to the High Court, the Van Rooyens are wrong in this regard. Col Van Heerden was in possession of the affidavit made by Col Perumal. According to the information contained therein it can, according to the High Court, “hardly be suggested that there was no reasonable suspicion or that no reasonable grounds existed for the issuing of the warrant”.
Consequently, this contention by the Van Rooyens likewise failed.