High court overturns wrongly-worded warrant used to search a dagga accused's property

A Western Cape man accused of dealing in cannabis has scored a minor victory, thanks to a magistrate’s failure to issue a comprehensible search warrant.

Police raided Gansbaai resident Simon Oosthuizen’s home in May — on the same day magistrate LP Le Roux issued the search warrant. They seized an iPhone and Apple laptop, a tablet device, about 2kg of loose cannabis, five small cannabis trees, four 5-litre plastic containers of glycerine, a 25-litre container of glycerine, 14 25-litre plastic cans containing ethanol and three 25-litre and four 5-litre plastic containers “containing liquid which is possible cannabis plant material and ethanol”.

Oosthuizen was then arrested “on a charge of dealing in cannabis, alternatively possession of cannabis”.

In July, Oosthuizen challenged the legality of the search warrant in the high court in Cape Town. He cited Le Roux, police minister and captains Christiaan Rossouw and Danie Rautenbach as respondents. On Thursday, acting judge Michelle Norton set the search warrant aside.

“I find that the warrant is to be set aside on the grounds that ... it does not indicate with reasonable intelligibility or the required specificity the nature of the suspected offences and ... it provides for the seizure of an impermissibly broad category of articles falling within the description ‘all electronic equipment' which include cellphones, desktop computers, laptops and iPads,” Norton said in the judgment.

The respondents opposed Oosthuizen’s application except for Le Roux. Le Roux did not file an affidavit explaining how he arrived at his decision.

“The magistrate, who is cited as the first respondent in the application, did not oppose the application or file an affidavit setting out his version, but delivered notice of his intention to abide the decision of the court,” Norton said.

Rossouw stated in an affidavit, meant to convince Le Roux to issue the search warrant, that he received “information” from a reliable source that cannabis was being produced on Oosthuizen’s property.

In the affidavit, Rossouw said information indicated that cannabis was produced in an “organised manner” by means of “hydroponic processes under nets” and that cannabis oils were being extracted from the plants through the means of pressure cookers or kettles in a bunker on the small holding.

According to court documents, Rossouw asked Rautenbach, the detective commander in Gansbaai, to confirm the address and determine whether there was a cannabis cultivation plantation and a bunker on the property.

“On May 20 2020 Capt Rautenbach informed him that he had done observation at the property and confirmed that there was a cannabis plantation under nets as well as ‘a kind of bunker’ and a house on the property. Capt Rautenbach also advised him that he had obtained photographs and video footage from the observation,” the judgment reads.

In an affidavit, Rautenbach told Le Roux: “During the observation it was found that it appears that dagga is being cultivated in a hothouse situated on the northern side of the smallholding at the back. I took photos of the property. I also noticed that there is a structure at the back of the property which consists of an underground and a surface level. There are even stairs which provide access to the structure ... I also took photos and video of the structure. In my opinion and experience in the police it did indeed appear that the property satisfies the information which exists and that dagga or drugs are indeed being cultivated.”

Oosthuizen was arrested after the search and seizure. But he put up a legal fight and challenged the search warrant. Oosthuizen said the warrant did not specify a period of validity, referred to the incorrect provisions of the Drugs Act and incorrectly referred to the substance “dronabinol”,  gave a wrong address for his property, authorised the execution of the warrant by named police officials as well as “any other SAPS member that can be of assistance during search” and permitted the seizure of “all electronic equipment”.

“The principal grounds relied on by [Oosthuizen] are, first, that the objective jurisdictional facts for the issue of the warrant were not present; and second, that the warrant is vague, overbroad and not reasonably intelligible. An overarching ground relied on by [Oosthuizen] is that the magistrate failed to apply his mind properly to the issue of the warrant,” the judgment reads.

“As a threshold point, [Oosthuizen] contends that the magistrate’s failure to depose to an affidavit means that the allegation that he failed to apply his mind stands unchallenged and must be accepted. There is no merit in this submission.

“It is regrettable that the magistrate, as an accountable decisionmaker, did not furnish this court with an explanation of how he reached his decision to issue the warrant, but it does not follow that [Oosthuizen] has therefore established that the magistrate failed to apply his mind ... The determination whether the magistrate applied his mind is not a subjective one, based on the magistrate’s own ‘say so’, but an objective one, based on the warrant and the information which was before the magistrate when he issued the warrant.”

Norton found that: “The warrant contains no date, next to the words ‘warrant valid until’, on which the warrant would ‘expire’. On the face of it, this renders the warrant overbroad in its duration.” The acting judge also found the description of the suspected offences in the warrant concerning. One of the concerns was reference to “dronabinol, which is an altogether different substance to cannabis”.

“Finally, there is the question of the articles which Capt Rossouw was authorised to seize. These included a category of articles described as: ‘All electronic equipment which include cellphones, desktop computers, laptops and iPads.' the judgment reads.

“This category of articles is strikingly broad. While the description ‘all electronic equipment’ is arguably narrowed by the reference to specific types of electronic devices, the warrant does not distinguish between the electronic devices themselves and any material or information stored on them, let alone identify the material to be seized as material which might have a bearing on the suspected offence,” the judgment reads.

“It is readily apparent that the respondents did not anticipate that the electronic devices themselves would furnish evidence (as, for example, instruments or products) of the suspected offences. It was the information stored on the electronic devices which was the focus of this part of the warrant, and the respondents were accordingly required to identify that information as precisely as possible in order to limit the inroads upon the applicant’s privacy which would follow from a ‘general ransacking’ of his electronic devices.”

Norton ordered the return of Oosthuizen’s iPhone.

“In respect of the iPhone seized and removed from the property in terms of the search warrant, the [Rossouw] shall within five court days of the date of this order hand over to the registrar all copies and images of the material on the iPhone which the [police minister or Rossouw] or their agents may have made while the iPhone was in their possession,” Norton ruled.

“The registrar shall retain the copies and images referred to in ... this order and keep them safe and intact under seal until ... the conclusion of any criminal proceedings instituted against [Oosthuizen] arising from his arrest on May 21 2020, the date upon which a decision is taken by the National Prosecuting Authority not to institute, or to abandon, any such criminal proceedings or the registrar is notified by [Rossouw] or the National Prosecuting Authority that the retained items or any of them may be returned to [Oosthuizen] whereupon the items so retained shall be returned to the [Oosthuizen].”

The police minster and Rossouw were ordered to pay 50% of Oosthuizen’s costs.

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