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The state has opposed Gauteng Hawks head Maj-Gen Ebrahim Kadwa’s application appealing a judgment that dismissed his court bid to have his phone containing “state secrets” returned to him.
The state’s opposition seeks to ensure the police keep Kadwa’s phone and extract possible evidence which could be used at the Madlanga commission.
Police seized the phone in May during Kadwa’s arrest in a case related to an alleged breach of the Precious Metals Act and a charge of defeating and obstructing the course of justice.
Kadwa was arrested alongside crime intelligence boss Maj-Gen Feroz Khan. Police have extracted damning evidence from Khan’s phone of alleged tender fraud currently before the Madlanga commission of inquiry investigating allegations of criminal infiltration in law enforcement agencies.
Police have been trying for the past three months to gain access to Kadwa’s phone but have been blocked by litigation. Kadwa refuses to provide the password, arguing that the phone was seized unlawfully because police did not have a seizure warrant.
Kadwa’s legal showdown is with police minister Firoz Cachalia, crime intelligence head Lt-Gen Dumisani Khumalo, investigating officer Calvin Khorommbi, and the Madlanga commission, whom he has cited in his court challenge.
The top cop was dealt a big blow when acting Johannesburg high court judge Bruce Leech in June dismissed his case, finding that the law allows the police to seize an article if it is suspected that it could have been used in the commission of a crime — even if they lack a seizure warrant.
Kadwa has filed an application to appeal the judgment, arguing Leech erred because the state did not plead a competent case that the seizure was applicable to the Criminal Procedure Act, which provides police officers with the power to seize articles when they suspect such could have been used in the crime the suspect is arrested for.
In opposing Kadwa’s appeal, advocate Viwe Notshe, for the state, submitted that the application for leave to appeal should be dismissed with costs “because there are neither reasonable prospects of success on appeal nor some other compelling reason why the appeal should be heard”.
Leech’s judgment created a precedent offering a shield to the police when they seize something without a search-and-seizure warrant but have to show that whatever was seized could have been used in an alleged crime.
Notshe maintains the police were justified in taking Kadwa’s device on the basis that the device in question was in his possession during his arrest.
“They were authorised by section 23 of the Criminal Procedure Act to search the person arrested and seize any article which was found in the possession, custody or under the control of the person arrested,” Notshe argues.
The state contends the phone could have been used in obstructing the ends of justice in the case against Kadwa.
“The [police] further averred that they were authorised to seize the article if it were concerned in or were on reasonable grounds believed to be concerned in the commission or suspected commission of an offence or may afford evidence of the commission or suspected commission of an offence,” Notshe says.
Kadwa’s legal representative, advocate Peter Makhambeni, argues the state, in its papers, did not link the seizure of the device to suspicion that it could have been used in the commission of a crime as required by the Criminal Procedure Act.
He argues that as the state’s case was not applicable to the shield provided by the act, the phone seizure should have been found unlawful.
“The deponent [police] did not even bother to take the learned judge into his confidence by explaining which criminal offence he was referring to specifically in order to invoke sections 20 and 23 of the Criminal Procedure Act,” Makhambeni argues in appeal papers.
“The learned judge descended into the arena and filled in the blanks for the deponent, who had failed to put the requisite factual matter before the learned judge.”
Makhambeni says the state sought to make a case for the applicability of the Criminal Procedure Act only in the heads of argument, and not in the answering affidavit.
“In civil law litigation, a litigant stands or falls by their papers, and with that being the case, the learned judge had no authority whatsoever to fill in the blanks on behalf of the [state],” he argues.
No date has been set yet for the hearing of the appeal application.
Business Day
Sinesipho Schrieber
www.businesslive.co.za
