Director of Public Prosecutions (Gauteng Division) v Thato Molefe and Another (417/2024) [2025] ZASCA 67 (26 May 2025)

Reportable

Case no: 417/2024

In the matter between:

and

ZENZILE
NDABA                                                            

SECOND RESPONDENT

Neutral
citation:    Director
of Public Prosecutions, Gauteng Division v Thato Molefe and Another
(417/2024) [2025] ZASCA 67 (26 May
2025)

Coram:                 
NICHOLLS, HUGHES,
KEIGHTLEY and
BAARTMAN JJA and
WINDELL AJA

Heard:                   
28 March 2025

Delivered:             
26 May 2025

Summary:             
Section 35(5) of the Constitution –
defective search warrant – admissibility of evidence –
unfair trial –
administration of justice – public policy.

On
appeal from: Gauteng Division of the
High Court, Pretoria (Phahlamohlaka AJ and
Phahlane J sitting as court of appeal):

1        
The appeal is upheld.

2         
The order of the full bench is set aside and
substituted with the following: ‘1 The appeal is upheld.

2 The order of the
regional court is set aside and replaced with the following:

(a)  
The material seized under the search warrant is
found to be admissible.

(b)  
The acquittals on counts 1, 2, 3, 4 and 5 are set
aside.’

3         
The matter is remitted back to the regional court
to continue with the trial.

Nicholls
JA (Hughes,
Keightley and
Baartman JJA
and Windell
AJA concurring):

[1]            
Under
what circumstances is evidence which has been obtained as a result of
a defective search warrant admissible? That is the question
to be
determined in this appeal. The Regional Court, Vereeniging (the
regional court), found that it was bound by this Court’s

decision in S
v Malherbe (Malherbe),[1]
that
once the search warrant was defective, it had no option but to rule
the evidence inadmissible. This was confirmed by a full
bench of the
Gauteng Division of the High Court, Pretoria (the high court), per
Phahlamohlaka AJ and Phahlane J. The appeal is
before this Court in
terms of s 311 of the Criminal Procedure Act 51 of 1977 (the CPA),
which affords the Director of Public Prosecutions
(the DPP) an
automatic right of appeal on a question of law.[2]

[2]            
The
respondents,
Mr
Thato
Molefe
(Mr
Molefe)
and
Mr
Zenzile
Ndaba
(Mr Ndaba) were charged in the regional court under the Drugs and
Drug Trafficking Act 140 of 1992 (the Drugs Act) with the
manufacture
of drugs, dealing in drugs, as well as individual counts for
possession of an illegal firearm and ammunition in terms
of the
Firearms Control Act 60 of 2000 (the Firearms Control Act).[3]
There
was a third accused , Mr Peter Mhlanga (Mr Mhlanga), who died during
the course of the trial. The main charge against the
three was that
they operated a drug laboratory, manufacturing and supplying certain
substances used in the manufacture of methaqualone,
commonly known as
mandrax.

[3]            
During the trial in the regional court, the only
evidence led by the State was the discovery of
drugs and drug
manufacturing equipment,
with a street
value of R26
million. Mr Andre Van Schalkwyk, a Warrant Officer (Warrant Officer
Van Schalkwyk) attached to the Vaal Organised Crime Unit,
said that
these were found by the police on the premises owned by Mr Ndaba,
pursuant to a search warrant. Shortly after Warrant
Officer Van
Schalkwyk’s evidence commenced, a trial within a trial was held
to determine the admissibility of the evidence
obtained under the
search warrant.

[4]            
Warrant Officer Van Schalkwyk testified that he
received information from a reliable informant, that Mr Mhlanga was
involved in
the manufacture of methaqualone. Mr Mhlanga would
customarily get picked up from his residence and taken to the
location where
the drugs were being manufactured. On receiving this
information, on 5 June 2016, Warrant Officer Van Schalkwyk followed
Mr Mhlanga
to a location in De Deur,
Vereeniging, where the drugs were allegedly being manufactured. The
property was surrounded by high walls, an impenetrable
gate and there
was no street name or house number. Warrant Officer Van Schalkwyk
ascertained through his Global Positioning System
(GPS) that the
address was 1[…] M[…] Road, De Deur.

[5]            
The following day, on 6 June 2016, Warrant Officer
Van Schalkwyk completed a pro forma search warrant for the premises.
He presented
it to the Acting District Magistrate at
Vereeniging Magistrates’
Court, who duly
signed it. On
7 June 2016,
Warrant Officer Van Schalkwyk and another police officer went to the
said address where they saw two men coming out of the
premises.
Warrant Officer Van Schalkwyk identified himself as a police officer
and explained that he was there to investigate a
drugs related
matter, and that he had a warrant entitling him to search the
property. The two persons were Mr Mhlanga and Mr Molefe.
A little
while later, a third person emerged, Mr Ndaba, the owner of the
property. Warrant Officer Van Schalkwyk then conducted
a search of
the house in their presence, and with the consent of Mr Ndaba. No
drugs, drug-making equipment or chemicals were found
inside the
house. He discovered that the drug manufacturing operations were
being conducted in an out- building. After receiving
confirmation
from the police officer who accompanied him that the machine running
inside the building was a pill press machine,
Warrant Officer Van
Schalkwyk arrested the three suspects and warned them of their
rights. He did not enter the out-building at
any stage but called the
forensic department who properly processed the scene.

[6]            
It is common cause that the search warrant was
defective, in that it was directed to ‘all police officials’
as opposed
to naming the individual police officers who would conduct
the search. It described the address of the premises as that
reflected
on the GPS, namely, 1[…], M[…] Road, De Deur,
Vereeniging (this was an incorrect address, it should have been Plot
2[…],
Road 3). The items identified in the warrant were ‘equipment,
chemicals, drugs’. Both Warrant Officer Van Schalkwyk
and the
Acting District Court Magistrate said that they were unaware that
specific police officers had to be identified by name
on the warrant
and that they had the bona fide belief
that the search warrant was correct in all respects. Warrant Officer
Van Schalkwyk conceded that the address was wrong, although
the
location of the premises was correct as per his GPS.

[7]            
The
regional court found that because of a ‘formal defect’,
the search warrant was invalid. Accordingly, in light of
Malherbe
and
the majority in S
v Pillay and Others (Pillay),[4]
the
evidence obtained under the warrant was inadmissible. Once the
magistrate held the evidence procured under the warrant to be

inadmissible, the state closed its case without leading further
evidence.[5]
The
respondents were discharged and acquitted in terms of s 174 of the
CPA.[6]

[8]            
An appeal to the Gauteng Division of the High
Court, Pretoria (the high court) was unsuccessful. The high court
confirmed the regional
court’s interpretation of Malherbe,
that if a search warrant is invalid, then material seized under the
warrant is inadmissible. The high court further found that
there had
been a flagrant and deliberate disregard of the respondents’
constitutional rights in that they were not told of
the existence of
the search warrant nor informed of their rights as suspects during
the arrest. It held that the issues raised
by the DPP were moot as it
had, ‘without provocation’, closed its case after the
evidence was ruled inadmissible. This,
said the high court, was a
‘classical case’ where the DPP should have immediately
reviewed the decision of the magistrate.

[9]            
In the first place, several of the high court’s
findings are factually incorrect. Warrant Officer Van Schalkwyk’s
assertion
that he informed the respondents that he had a warrant to
search the premises, and that he informed them of their rights, was
not
challenged. No serious accusations of disregarding the
constitutional rights of the respondents were levelled against him.

[10]        
Second, the reference to mootness is difficult to
comprehend. The mootness argument was also advanced in this Court by
Mr Zwane,
counsel for the respondents. It appears to be based on the
misconception that once the State closed its case without leading
further
evidence, the issues became moot and only of academic
significance. Therefore, there was no point in a remittal to the
magistrates’
court for the continuation of the trial as the
State would have to re-open its case. This appeal, it was argued, was
nothing more
than a backdoor application to re-open the case which
would, if allowed, undermine the rule of law and the respondents’
constitutional
rights (presumably to an acquittal). This reasoning
does not properly take into account what the effect would be, of a
finding
on appeal that the evidence procured pursuant to the search
warrant, was admissible. In such an event, the acquittals would be
set aside and the trial would have to proceed.

[11]        
Finally,
it is not open to an accused person or the prosecution to appeal the
outcome of a case before it has been finalised. A
judgment is a
prerequisite to launching an appeal. Despite the high court’s
reference to an immediate review being permissible,
there is no
suggestion that the magistrate’s decision to refuse to admit
the evidence amounted to a reviewable irregularity.
But even if this
were the case, the review of an alleged irregularity is brought at
the end of the proceedings.[7]

[12]        
The
fundamental question in this appeal is whether the regional court and
the high court were correct in disallowing the evidence,
on the basis
that the search warrant suffered a formal defect. This has been a
subject of debate over the years. Much has been
said about the United
States’s law of rigid exclusion of any evidence improperly
obtained, as opposed to the position in
English law of general
inclusion of any evidence that is relevant.[8]
South
Africa has tended towards a Canadian approach, where the decision to
admit improperly obtained evidence was left largely to
the discretion
of the judge, taking into account the individual facts of the case.
The interim Constitution contained no express
provisions on how to
deal with such evidence. However, the Constitution has now codified
our approach to unconstitutionally obtained
evidence. Section 35(5)
of the Constitution provides:

‘Evidence
obtained in a manner that violates any right in the Bill of Rights
must be excluded if the admission of that evidence would
render the
trial unfair or otherwise be detrimental to the administration of
justice.’

[13]        
Section
35(5) has been described as a qualified ‘exclusionary rule of
evidence’,[9]
which
contains a constitutional directive to exclude evidence obtained in
violation of the Bill of Rights, but only where the trial
will be
unfair if the evidence were to be admitted or would otherwise be
detrimental to the administration of justice. As such,
the discretion
of the court is removed. Instead, a decision has to be made to
ascertain whether either of the two consequences
will result. If the
admission would render the trial unfair, then the evidence is to be
excluded. If admitted, this significantly
undermines the
administration of justice. But as the provision states, there may be
other factors which provide a basis for the
exclusion.

[14]        
The two legs are interrelated but separate
inquiries. It is notionally possible that admitting the impugned
evidence could damage
the administration of justice but leave the
trial fair. However, the opposite is not true and where the admission
of evidence renders
the trial unfair, this will always be detrimental
to the administration of justice.

Central
to the latter inquiry is the public interest.[10]

[15]        
Section 35(5) is indicative of the tension between
respect for the Bill of Rights and respect for the judicial process.
There are
competing social interests in determining whether the
impugned evidence should be admissible. The one is the social
imperative
to bring criminals to book, especially in South Africa,
with its burgeoning and uncontrollable crime rate. But public policy
not
only demands that the guilty are held accountable but also that
the police and prosecutorial officers uphold and respect the Bill
of
Rights. A trial which is not fair to an accused, will bring the
administration of justice into disrepute. But an overemphasis
on a
technicality which leads to an acquittal of an accused who has
committed a serious crime, will attach public opprobrium and
engender
a distrust in the legal system. This too, will be detrimental to the
administration of justice.

[16]        
Several
broad principles have emerged. Initially courts distinguished where
real evidence had been obtained by improper means as
opposed to
derivative evidence obtained from the accused themselves. Derivative
evidence is generally that which is extracted through
confessions and
pointing outs and entails self-incrimination by the accused person.
Courts more readily received improperly obtained
evidence, which was
real evidence, in the form of tangible objects. As this Court stated
in S
v Mthembu: ‘The
reason was that such evidence usually bore the hallmark of objective
reality compared with narrative testimony that depends
on the say-so
of a witness. Real evidence is an object which, upon proper
identification, becomes, of itself, evidence . . .’[11]

[17]        
It has been accepted that this distinction can be
misleading, as highly probative real evidence is often procured as a
result of
a confession or admission. The more significant
consideration is whether the accused was coerced into providing the
evidence. Any
evidence which is procured through assaults or torture
will always render the trial unfair. Even where the evidence was
reliable
and necessary to secure the conviction, the admission of
such evidence will be detrimental to the administration of justice.

[18]        
Of
greater importance is the seriousness of the infringement of the Bill
of Rights in the procurement of the evidence. Police conduct
which
constitutes a flagrant and deliberate disregard of the rights of the
accused, will be viewed in a different light to minor
or technical
infringements. A rights violation is not severe where the police
acted in good faith, or where their conduct was objectively

reasonable. Thus, if the conduct of the police is justifiable, the
impugned evidence is less likely to be excluded, even if it
was
obtained unconstitutionally. ‘The closer the connection is
between the violation of the right and the procurement of
the
evidence, the more likely it will be that the reception of the
evidence will fall foul of one of the two conditions set out
in
section 35(5).’[12]

[19]        
In S
v Dos Santos and Another,[13]
the
regional magistrate who issued the warrant was not a magistrate as
defined in s 21 of the CPA, thus rendering the warrant defective.[14]
A
search under the warrant uncovered 153 unpolished diamonds and
related paraphernalia.[15]
This
Court, in finding that the evidence obtained under the warrant was
admissible, said:

‘Here
the investigating team did not act in flagrant disregard of the first
appellant’s constitutional rights. On the contrary,
they sought
judicial authority for their conduct. The judicial imprimatur
was
an attempt to uphold the law in spirit and letter. None of those
executing the warrant knew that it suffered a defect. Eschewing
the
local Magistrates’ Court in favour of one located in Cape Town
was designed to protect the investigation and preserve
the element of
surprise . . .

In
those circumstances it is plain that the task team was not attempting
to garner any unfair advantage for themselves. Rather it
plainly was
an endeavour to protect the interests of the first appellant. For
that they should be commended, not penalised by having
the evidence
that has been secured pursuant to that warrant excluded.’[16]

[20]        
Similarly,
in S
v Tiry and Others (Tiry),[17]
it was
common cause that the search warrant was issued irregularly in that
no specific crimes or names of possible suspects were
mentioned in
the warrant.[18]
Notwithstanding
these defects, this Court was of the view that taking the evidence as
a whole, the accused had a fair trial, and
the evidence of petroleum
storage tanks obtained under the warrant was correctly accepted by
the trial court.[19]
This
Court held that s 35(5) was ‘not an absolute exclusionary
provision for evidence obtained in violation of an accused’s

constitutional rights’.[20]

[21]        
In S
v Van Deventer and Another,[21]
the
search warrant was issued in terms of the wrong statute. The court
held that the violation of the appellant’s rights was
of a
technical rather than a flagrant nature and that the police officers
acted bona
fide.[22]
Moreover,
if the evidence could be obtained by lawful means, the inclusion
thereof would generally
not
render
the
trial
unfair
or
be
detrimental
to
the
administration
of
justice. The search, in Tiry,
yielded valuable and real evidence of a vast network of theft of
petroleum products, as well as actual products stolen from Sasol.[23]

[22]        
It is
significant that this Court’s majority judgment in Pillay,
on
which the regional court relied, pre-dated the cases referred to
above. The majority in Pillay
found
that because false information was put up to obtain permission to
monitor certain phone calls, derivative evidence obtained
pursuant to
the calls was inadmissible.[24]
This
included real evidence in the form of bank notes concealed in the
roof. The minority would have admitted the evidence, inter
alia,
on the basis that the concealed money was real evidence which would
have existed independently of the rights violation.[25]
The
exclusion of the evidence, resulting in an acquittal, would result in
a loss of respect, not only for the judicial process,
but also for
the Bill of Rights, stated the minority.[26]

[23]        
In this matter, both the regional court and the
high court placed great reliance on this Court’s decision in
Malherbe.
There, pornographic material was discovered on Mr Malherbe’s
laptop, pursuant to a defective search warrant. Once the material
was
found to be admissible, Mr Malherbe made formal admissions in which
he admitted to being in possession of pornographic images.
He was
found guilty on those counts. As observed by the Court:

‘Section
35(5) of the Constitution provides that evidence obtained in a manner
that violates the Bill of Rights must be excluded
if the admission of
that evidence would render the trial unfair or otherwise be
detrimental to the administration of justice. In
this case there can
be no doubt that
the
decision
that
the
search
warrant
was
valid
and
that
the
items
seized
from
Mr Malherbe’s home were lawfully seized, compelled the making
of the admissions. Therefore, the evidence obtained through
the
invalid search warrant rendered the trial unfair and should have been
excluded. Anything done pursuant thereto was unlawful.’[27]

[24]        
That Mr Malherbe felt compelled to admit to the
offences once the evidence obtained under
an unlawful
warrant was
admitted, had a
manifest impact
on the fairness of his
trial. When this Court stated that the evidence seized in terms of an
invalid search warrant should have been
excluded, this was with
specific reference to the facts in that case, rather than a general
statement of the law.

[25]        
Zeffertt
and Paizes remarked that s 35(5), at first blush, seems to be a
departure from the discretionary approach of pre-1996 but
once the
connection between fairness and interests of justice are fully
understood, one could be inclined to think the distinction
could be
one of form rather than substance.[28]
In my
view s 35(5), best understood, is not so much a balancing test or a
discretionary approach, but a rule which provides for
the exclusion
if one of the two conditions is met. Whether the admission of
evidence would render the trial unfair is responsive
to a range of
issues, often specific to a particular trial. These include the
nature of the evidence, its probative value and how
it was obtained,
particularly the conduct of the police in its procurement. Careful
consideration should be given to these factors.
The extent of the
procedural failure on the part of the police should be viewed in the
light of possible detriment that would be
caused to the
administration of justice by incentives not to follow due process.
Holistic consideration of all these would then
permit a conclusion of
whether the trial is to be rendered unfair, or otherwise detrimental
to the administration of justice.

[26]        
The
complaint here is that the search warrant was formally defective in
two aspects, namely the incorrect address and because it
was
addressed to all police officers, without specifically naming Warrant
Officer Van Schalkwyk. As far as the address is concerned,
it was not
unreasonable to provide the address which was reflected on the GPS.
In any event, the correct premises were identified.
Regarding the
reference to ‘all police officers’, this was the pro
forma search warrant provided to the police and
available at all
police stations at the time. Both the Acting Magistrate and Warrant
Officer Van Schalkwyk were unaware of the
findings of the
Constitutional Court that a search warrant must be directed at a
specific police officer,[29]
and
genuinely believed that the pro forma warrant was correct. This was
not unreasonable in the circumstances and certainly cannot
be
attributed to any male
fides on
the part of the police.

[27]        
Moreover, as conceded by Mr Zwane, Warrant Officer
Van Schalkwyk would have been well within his rights to enter without
a search
warrant in terms of s 22 of the CPA. This section provides
that a police officer who, on reasonable grounds, believes that a
search
warrant would have been issued to him if he had applied, and
that the delay in obtaining the warrant would defeat the object of

such a search, may enter and seize items on a premises. Warrant
Officer Van Schalkwyk agreed that it was not necessary for the
police
to obtain a search warrant before entering the premises. Nonetheless,
he acted with greater circumspection than necessary
and applied for a
warrant.

[28]        
There are other factors which weigh in favour of
admitting the evidence, despite the formal defect. The search warrant
unearthed
real evidence in the form of tangible objects – the
drugs and the drug manufacturing equipment, the probative value of
which
was unassailable. The impact of the rights violation was not
severe. It did not stem from deliberate conduct on the part of the

police and there was no suggestion of coercion. Viewed in its
totality, the conduct of the police was reasonable.

[29]        
Warrant Officer Van Schalkwyk was at pains to
point out that there had been no complaints to date about the manner
in which the
search was conducted. He informed the respondents of
their right to an attorney. He told them that he had received
information
that drugs were being manufactured on the premises and
that the police had come to execute a search warrant based on
information
received. It is common cause that the evidence could have
been procured by lawful means, namely conducting a search and seizure

without a warrant. Nonetheless, Warrant Officer Van Schalkwyk sought
judicial sanction for the search. He should not be penalised
for
this.

[30]        
On the facts of this particular case, the
admission of the impugned evidence would not render the trial unfair
or otherwise bring
the administration of justice into disrepute. The
appeal should be upheld.

[31]        
Finally, it is necessary to deal with the conduct
of the respondents’ attorneys in this matter. When no heads of
argument
were filed, in early January 2025, the Registrar of this
Court contacted VM Mashele Attorneys, who represented the respondents
in the high court. She was informed by Mr Victor Mashele that he had
withdrawn and that the new attorney on record was Mr Phaladi
Kanyane.
Despite a request for a notice of withdrawal and a notice of
appointment of the new attorneys, none was forthcoming. (Copies,

without proof of service, were provided after the hearing at the
request of the Court on 25 April 2025).

[32]     
On 16 January 2025, the Registrar directed that VM
Mashele Attorneys file their heads of argument within 10 days. She
was informed
by Phatshoane Henny Attorneys, the Bloemfontein
correspondents, that they had received an email from VM Mashele
Attorneys to file
heads of argument, but Mr Mashele refused to
formally appoint them or pay a deposit. Despite being non-compliant,
on 28 February
2025 the Registrar accepted the heads of argument
signed by Mr Zwane, apparently instructed by Mr Kanyane.

[33]        
On 7 March, the date of the appeal, neither
Counsel nor the attorneys for the respondents were present. Counsel
for the appellant,
Ms Maphalala, indicated that she had fortuitously
discovered a few days prior that Mr Siphelele Zwane (Mr Zwane) was
counsel for
the respondents. She called him during a brief recess,
and he informed her that his father was sick, and he had to turn
back. The
matter was postponed to 28 March 2025. The State undertook
to ensure that the respondents would be personally notified of the
date.
Notices of set down were sent by the Registrar to all the legal
representatives.

[34]        
On 28 March 2025, Mr Zwane and his attorney, Mr
Phaladi Kanyane were present. In response to the bench’s query
as to their
non-appearance, we were informed that Mr Zwane had been
on his way to court when he was notified that his child was ill. He
immediately
returned to Johannesburg. The attorney, Mr Kanyane, we
were informed, arrived at Court at about 12h00 due to problems with
traffic,
although he did not notify anyone at Court of his presence.

[35]        
Such conduct is unbecoming of legal practitioners.
It shows disregard for this Court and the legal profession. The legal
practitioners
were informed that this Court is considering reporting
them to their professional bodies and were invited to make affidavits
explaining
their conduct. Either inadequate explanations, or no
affidavit at all, have been provided. A copy of this judgment will be
made
available to the relevant professional bodies, together with the
affidavits, with a request that the conduct of Mr Mashele, Mr Kanyane

and Mr Zwane be investigated.

[36]        
Had it not been in the interests of justice to
proceed with the hearing, the matter would have been struck from the
roll.

[37]        
The following order is made:

1        
The appeal is upheld.

2          
The order of the full bench is set aside and
substituted with the following: ‘1 The appeal is upheld.

2 The order of the
regional court is set aside and replaced with the following:

(a)  
The material seized under the search warrant is
found to be admissible.

(b)  
The acquittals on counts 1, 2, 3, 4 and 5 are set
aside.’

3          
The matter is remitted back to the regional court
to continue with the trial.

C E HEATON NICHOLLS

JUDGE OF APPEAL

Appearances