THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable

Case No 312/2011

In the matter between

SVETLOV IVANCMEC IVANOV

Appellant

and

NORTH WEST GAMBLING BOARD

1st Respondent
INSPECTOR FREDDY

2nd Respondent
INSPECTOR PITSO

3rd Respondent
THE STATION COMMANDER OF THE
RUSTENBURG POLICE STATION

4th Respondent
MINISTER OF SAFETY AND SECURITY

5th Respondent
THE MAGISTRATE OF RUSTENBURG

6th Respondent

Neutral citation: Ivanov v North West Gambling Board (312/2011)
[2012] ZASCA 92 (31 May 2012)

Coram:
CLOETE, HEHER, SNYDERS and MHLANTLA JJA and
McLAREN AJA

Heard:
14 May 2012

Delivered: 31 May 2012

Summary: Search warrant - search and seizure - declaration of
invalidity of search warrant - operates retrospectively - search and
seizure invalid ex tunc - application for a mandament van spolie
appropriate − appellant entitled to restoration of machines even
though his possession without a licence would be illegal.

___________________________________________________________

ORDER
___________________________________________________________

On appeal from: North West High Court, Mafikeng (Leeuw JP sitting
as court of first instance):

The appeal is upheld with costs, including the costs of two counsel.
The order of the court below is set aside and replaced with the
following:
'(a) the rule nisi issued by Moloto AJ on 30 January 2010 is
confirmed;
(b) the search warrant issued by the sixth respondent on 22
January 2010 is declared unlawful;
(c) the first, third and fourth respondents are ordered forthwith
to restore the assets referred to in annexure 'WGP1' to the first
respondent's answering affidavit, to the applicant;
(d) the first, second, third and fourth respondents are ordered to pay
the applicant's costs jointly and severally, the one paying the
others to be absolved, such costs to include the costs
consequent upon the employment of two counsel.'

___________________________________________________________

JUDGMENT
___________________________________________________________

MHLANTLA JA (Cloete, Heher and Snyders JJA and McLaren AJA
concurring):

Introduction
[1] This appeal, with the leave of the court below, turns on the effect
of the declaration of invalidity of a search and seizure warrant. It also
involves the question whether the appellant was entitled to institute a
spoliation application and more particularly whether the fact that his
possession of the goods was and remains illegal, is a bar to his being
restored to possession thereof. The issues arising on appeal will best be
understood in the light of the background facts that follow.

Background
[2] The North West Gambling Board, the first respondent, is a juristic
person established in terms of section 3 of the North West Gambling Act
2 of 2001 (the Act). I shall hereafter refer to the first respondent as the
Board. The Act provides for the regulation of gambling activities in the
North West Province. The Board has, in terms of section 4, certain
powers, including the powers to oversee gambling activities and
investigate illegal gambling throughout the Province and to exercise such
powers and perform such functions and duties as may be assigned to it in
terms of the Act and any other law. The Board and the South African
Police Service (SAPS) agreed to co-operate with regard to the
investigation of illegal gambling in the Province.

[3] On 22 January 2010 Mr Wilfred Pitso, the third respondent, who is
an inspector in the employ of the Board, inspected the business premises
of Mr Svetlov Ivanov, the appellant. As it appeared to the third
respondent that gambling activities were taking place in contravention of
the Act, he requested members of SAPS to conduct further investigations
and to apply for a search warrant. Pursuant thereto, members of the SAPS
applied for a search warrant from the magistrate, the sixth respondent,
who serves in the court which has jurisdiction over the appellant's
business premises in Rustenburg. The sixth respondent issued the search
warrant in terms of sections 20, 21 and 25 of the Criminal Procedure Act
51 of 1977 (the Criminal Procedure Act) read with section 65 (6) to (8) of
the Act.

[4] On 29 January 2010, Inspector Freddy (the second respondent) and
other members of the SAPS, as well as the third respondent and some
employees of the Board, went to the premises of the appellant to execute
the search warrant. They confirmed that the appellant was in possession
of gambling machines and other gambling devices despite the fact that he
did not have the requisite licence and was not authorised by the Board to
possess the machines − in effect contravening the provisions of section
9(1) of the National Gambling Act 7 of 2004.1 Possession and use of
machines without a valid licence are offences under section 82 of the
Act.2

1 Section 9(1) of the National Gambling Act 7 of 2004 provides:
‘(1) Despite any other law, a person must not–
(a) import, manufacture, supply, sell, lease, make available, possess, store or alter a gambling machine
or gambling device, or transport or maintain such a machine or device except to the extent
contemplated in section 23(4), unless that person is authorised to do so in terms of this Act or
applicable provincial law;
(b) possess or make available for play a gambling machine or gambling device for use in a gambling
activity unless registered ownership or possession of the machine or device has been transferred to that
person in terms of section 23(6).'
2 Section 82(1) of the Act provides:

[5] As these events were unfolding, the appellant launched an ex parte
application in the Rustenburg Magistrates' Court on an urgent basis. He
sought an order, inter alia ‘cancelling’ the search warrant and directing
the members of SAPS to restore possession of his business premises to
him. In his affidavit, he averred that he was the owner of Max-a-Million
Casino and that the warrant was invalid. The magistrate granted an order
for the restoration of his business premises but – correctly – made no
order that affected the validity of the warrant. The order was brought to
the attention of the police officers who were still in the process of
executing the search warrant but they continued with the search and
seizure operation. They locked the premises and informed the appellant
that they would continue the following day. The appellant was arrested
and taken to the Rustenburg police station where he was given a written
notice to appear in court on 1 February 2010 on a charge of illegal
gambling.

[6] On 30 January 2010, the second and third respondents as well as
other police officers and employees of the Board returned to the
appellant's premises and seized the machines and equipment which
appeared to be gambling machines. This caused the appellant to institute
an ex parte application in the North West High Court, Mafikeng against

‘(1) Any person who–
…
(xiii) is in possession of any gambling machine, table or device contemplated in section 66(1) and this
section and is not-
(a) the holder of an appropriate licence;
(b) registered in terms of section 60(1);
(c) authorised by the Board to use such device for social gambling; or
(d) authorised by the Board to transport such machine, table or device in or through the Province
as contemplated in section 66C(2);
(xiv) uses gambling device or amusement machine otherwise than in accordance with the provisions of
the Act;
…
is guilty of an offence and on conviction (unless otherwise expressly provided elsewhere in this Act) be
liable to a fine or to imprisonment for a period not exceeding 10 years or to both a fine and such
imprisonment.’

the first to fifth respondents, on an urgent basis. In his founding affidavit,
the appellant attacked the validity of the search warrant. He averred, inter
alia, that he was ‘conducting a business’ at the premises; that the
magistrate had issued a spoliation order on 29 January; that the police
officers had ignored the court order and had seized some of his goods;
and that they had returned on that day and were in the process of loading
machines into the truck. He stated that he would be obliged to obtain
permits from the Board to transport the machines back to the premises –
thereby tacitly admitting that the machines were gambling machines.3
The appellant sought an order, inter alia, declaring the search warrant null
and void and directing the respondents to restore the machines to him
with immediate effect.

[7] The matter came before Moloto AJ, who granted a rule nisi with
immediate effect pending the return day, declaring the search warrant null
and void and ordering the first to fifth respondents to restore possession
of the machines to the appellant. The respondents complied with the order
and returned the machines to the appellant. These machines are still in his
possession.

[8] The respondents opposed the confirmation of the rule nisi. The
third respondent deposed to an affidavit on behalf of the respondents save

3 Section 66A(1) of the Act provides:
‘A person shall not-
(a)  conduct or permit the playing of any gambling game or conduct or permit any gambling in or on
any premises under his or her control or in his or her charge; or
(b) be directly or indirectly involved in the operation of any gambling business;
without an appropriate licence, and this will include transportation of gambling machines or devices or
the handling of such without the written approval from the Board.’

for the sixth respondent. He objected to the manner in which the appellant
had launched the application. He stated that the appellant had failed to
comply with the provisions of section 35 of the General Law Amendment
Act 62 of 1955,4 as no notice had been given to them. He conceded that
the warrant might have been defective however he stated that the
respondents were justified in their actions and had met the requirements
of sections 20, 21 and 25 of the Criminal Procedure Act; that the
appellant had contravened the provisions of section 9(1) of the National
Gambling Act and that he was conducting an illegal casino contrary to the
provisions of section 50(1)5 of the Act. He averred that by virtue of
section 79 of the Act, the gambling machines and other articles that were
used in the commission of the offence were liable to forfeiture upon the
appellant's conviction. He therefore sought that the rule nisi be discharged
and the appellant be ordered to return the machines to the Board.

[9] The application was postponed on various occasions. It was
eventually heard by Leeuw JP. After considering the issues, the learned
judge president discharged the rule nisi in part. She declared the warrant
invalid for being too general and vague and accordingly set it aside.
Relying on the decision of Oudekraal Estates (Pty) Ltd v City of Cape
Town,6 she held that the search and seizure were not unlawful as the
search warrant, albeit invalid, had not yet been set aside when the police

4 Section 35 provides:
‘Notwithstanding  anything to the contrary contained in any law, no court shall issue any rule nisi
operating as an interim interdict against the Government of the Union including the South African
Railways and Harbours Administration or the Administration of any Province, or any Minister, Premier
or other officer of the said Government or Administration in his capacity as such, unless notice of
intention to apply for such rule, accompanied by copies of the petition and of the affidavits which are
intended to be used in support of the application, was served upon the said Government,
Administration, Minister, Premier or officer at least seventy-two hours, or such lesser period as the
court may in all the circumstances of the case consider reasonable, before the time mentioned in the
notice for the hearing of the application.’
5 This section prohibits anyone from conducting a casino without a licence.
6 Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA) para 26.

executed it and that it had empowered them to conduct the search and
seizure.

[10] The judge president further held that the appellant was not entitled
to a spoliation order and that he had adopted the wrong procedure and
relied on a wrong cause of action. She ordered the appellant to return the
machines to the respondents with the qualification that he was only
entitled to the return of the items which he might lawfully possess.
Having found that the appellant had not displayed the utmost good faith
required of an applicant in an ex parte application, the judge president
ordered the appellant to pay costs on a punitive scale. She later granted
leave to appeal to this court.

[11] Against that background the appeal raises two issues. They are:
(a) whether the declaration of invalidity of the search warrant could
transform a bona fide search that was executed under a warrant into a
spoliation; and
(b) whether as a result of the declaration of invalidity of the search
warrant, the appellant is entitled to unqualified restoration of the
machines the possession of which without a licence is prohibited by the
Act.

Findings
[12] It is common cause that the search warrant is invalid and that the
appellant is not a holder of any licence issued under the Act. Counsel for
the appellant conceded that most of the machines seized from the
appellant are gambling machines. In my view the learned judge president

rightly came to the conclusion that the search warrant was invalid and
accordingly cancelled it. She however erred when she held that the order
declaring the search warrant invalid did not affect the lawfulness of the
search and seizure.

(a) Reliance on Oudekraal
[13] As indicated earlier in my judgment, the judge president found
support in Oudekraal when she held that an unlawful act was capable of
producing legally valid consequences for as long as the unlawful act was
not set aside. Counsel for the respondents correctly conceded that the
court below’s reliance on Oudekraal was misplaced as that case dealt
with the validity of administrative acts. The issue of a warrant is not an
administrative act. It was so held by Langa CJ in Thint (Pty) Ltd v
National Director of Public Prosecutions; Zuma v National Director of
Public Prosecutions,7 where he stated:
'In supplementary written submissions filed after the close of the hearing, the State
submitted that the decision to issue a search warrant is an administrative one which
falls within the terms of the Promotion of Administrative Justice Act 3 of 2000. The
applicants, on the other hand, submitted that it is a judicial discretion and does not fall
within the scope of administrative action. This latter approach accords more with the
jurisprudence of this court.’

(b) Effect of the declaration of invalidity of the search warrant
[14] Counsel for the respondents submitted that the search and seizure
were lawful as the warrant had not been declared invalid when the police
executed it and that it remained valid until set aside on review. In my
view this submission cannot prevail. ‘A warrant is no more than a written

7 Thint (Pty) Ltd v National Director of Public Prosecutions; Zuma v  National Director of Public
Prosecutions 2009 (1) SA 1 (CC) para 89.

authority to perform an act that would otherwise be unlawful.’8 It must
comply with the statutory provisions. If it is subsequently declared
invalid, the invasion of privacy and the search and seizure cannot retain
the lawfulness thereof as the essence of what made the dispossession
lawful, falls away. As Harms DP stated in Cadac (Pty) Ltd v Weber-
Stephen Products Co:9
'The declaration of invalidity operates retrospectively and not prospectively. This
means that once a warrant is set aside it is assumed that it never existed, and
everything done pursuant thereto was consequently unlawful.'

[15] Put differently, the lawfulness of the search and seizure is
dependent on the legality of the search warrant. This must necessarily be
so as the warrant provides the justification for the search and seizure. If
the warrant is declared null and void, it means that there was no basis in
law for the search and seizure, which were therefore invalid ex tunc. In
this case, the police had no authority to seize the appellant's goods, albeit
that they acted in good faith and believed that they had the power to
search in terms of the warrant. Once the order of invalidity was issued,
the necessary consequence is that the police acted unlawfully.

[16] The matter was put beyond doubt by the decision of the
Constitutional Court in Betlane v Shelly Court CC.10 In that case, the
registrar had issued a writ of execution in favour of the respondent,
contrary to rule 49 (11) of the Uniform Rules of Court, which requires it
to be issued by the court which granted the order. The applicant was
evicted on the strength of the writ of execution which was later declared

8 National Director of Public Prosecutions v Zuma 2008 (1) SACR 258 (SCA) para 76.
9 Cadac (Pty) Ltd v Weber-Stephen Products Co 2011 (3) SA 570 (SCA) para 18.
10 Betlane v Shelly Court CC 2011 (1) SA 388 (CC).

unlawful and set aside. The applicant applied for a spoliation order.
Mogoeng J held in para 36:
'Ordinarily, an eviction that is carried out pursuant to an invalid writ of execution
amounts to spoliation. The evictee would therefore be entitled to restitution.'
However, a restoration order was not granted as the premises were
already occupied by a bona fide third party.

[17] It follows that it was competent for the appellant in this case to
apply for a spoliation order. The court below accordingly erred when it
concluded that the appellant had used a wrong procedure and relied on a
wrong cause of action. I now turn to the issue of spoliation.

(c) Spoliation application
[18] Counsel for the appellant submitted that the court below applied
the wrong principles when considering the application. He contended that
in spoliation proceedings, the lawfulness of the possession of the
applicant for the spoliation order is irrelevant. All that is required of the
applicant is for him or her to prove that he or she was in peaceful and
undisturbed possession of the disputed property and that he was deprived
of his possession against his will. Counsel for the respondent, on the other
hand, supported the finding of the court below. He submitted that the
lawfulness of possession had to be considered as the appellant is
prohibited by the Act as well as the National Gambling Act from
possessing gambling machines or gambling devices without a licence. In
support of this submission counsel called in aid the decision of the full
court of the North West High Court in Schoeman v Chairperson of the
North West Gambling Board.11

11 Schoeman v Chairperson of the North West Gambling Board  [2005] ZANWHC 81.

[19] In my view the submission on behalf of the respondents is devoid
of merit. The historic background and the general principles underlying
the mandament van spolie are well established. Spoliation is the wrongful
deprivation of another's right of possession. The aim of spoliation is to
prevent self-help. It seeks to prevent people from taking the law into their
own hands. An applicant upon proof of two requirements is entitled to a
mandament van spolie restoring the status quo ante. The first, is proof
that the applicant was in possession of the spoliated thing. The cause for
possession is irrelevant – that is why possession by a thief is protected.
The second, is the wrongful deprivation of possession. The fact that
possession is wrongful or illegal is irrelevant as that would go to the
merits of the dispute.

[20] In Nino Bonino v De Lange,12 Innes CJ enunciated the principle
underlying the mandament van spolie as follows:
'It is a fundamental principle that no man is allowed to take the law into his own
hands; no one is permitted to dispossess another forcibly or wrongfully and against
his consent of the possession of property, whether movable or immovable. If he does
so, the Court will summarily restore the status quo ante, and will do that as a
preliminary to any inquiry or investigation into the merits of the dispute.'

[21] In Kelly v Wright; Kelly v Kok,13 the lessor had leased to two joint
lessees a flat without first obtaining the consent of the controller of
manpower as required by War Measure 74 of 1945. Rent was paid
monthly. Wright had been given notice to vacate the flat forthwith whilst
Kok was given some six weeks notice. The lessor applied in the
magistrate’s court for the ejectment of the lessees. The application was

12 Nino Bonino v De Lange 1906 TS 120 at 122.
13 Kelly v Wright; Kelly v Kok 1948 (3) SA 522(A) at 528-530.

dismissed on the basis that insufficient notice of ejectment was given.
The effect of the court’s decision was that the lessees who had committed
an offence remained in possession. The lessor appealed against that
decision and submitted that he would be committing an offence if the
court allowed the lessees to remain in occupation. In this regard, he found
support in the decision of Gopal v Cohen.14 In that matter Neser J (Maritz
and De Villiers JJ concurring ) said at 288:
‘I am of the opinion, moreover, that there is a further ground for granting an order of
ejectment. Every day appellant resides on or occupies the property she is committing
a criminal act and if respondent permits appellant to remain on the property she
commits a criminal act. It may well be that respondent cannot be held to be permitting
the appellant to occupy the property if the Court rules that she is not entitled to an
order of ejectment against the appellant, but if the Court does so rule the Court is in
effect permitting appellant to remain on the property and by so doing to continue
committing criminal acts. It would clearly be against public policy to countenance a
breach of the law which is declared by statute to constitute criminal conduct.’
Tindall ACJ held that the approach of the court was in conflict with the
decision in Jajbhay v Cassim15 and overruled it. He went on to say at 529:
‘I am unable to accept as correct the alternative ground given in Gopal v Cohen, for
ejecting the lessee in that case. It does not seem to me that by refusing the decree of
ejectment the Court would be permitting or countenancing the commission of an
offence by the lessee or would be acting against the requirements of public policy. In
my opinion the requirements of public policy in a case like Gopal v Cohen would be
satisfied by enforcing the criminal law’

[22] Turning to the case before him, Tindall ACJ said at 530:
‘The refusal to eject the lessees can hardly prejudice the lessor in respect of
prosecution; she apparently was liable to prosecution in any event and if she should be
prosecuted it is not likely, even if she be legally liable to further prosecution, that she
would thereafter be prosecuted a second time, seeing that she has taken legal steps to

14 Gopal v Cohen 1946 TPD 283.
15 Jajbhay v Cassim 1939 AD 537.

attempt to eject the lessees. As for the lessees they also apparently are liable to
prosecution. Assuming against them that as long as they remain in occupation they
will be liable to punishment as for a continuous offence, it cannot rightly be said that
the Court, by refusing to eject them, will be permitting or countenancing the
commission of an offence by them. It does not seem to me that considerations of
public policy demand intervention by a civil court; such considerations will be
satisfied by proceedings in a criminal court.’16

[23] Van Blerk JA in Yeko v Qana17 outlined the requisites for the
remedy and stated:
'The very essence of the remedy against spoliation is that the possession enjoyed by
the party who asks for the spoliation order must be established. As has so often been
said by our Courts the possession which must be proved is not possession in the
juridical sense; it may be enough if the holding by the applicant was with the intention
of securing some benefit for himself. In order to obtain a spoliation order the onus is
on the applicant to prove the required possession, and that he was unlawfully deprived
of such possession. As the appellant admits that he locked the building it was only the
possession that respondent was required to establish… For, as Voet, 41.2.16, says, the
injustice of the possession of the person despoiled is irrelevant as he is entitled to a
spoliation order even if he is a thief or a robber. The fundamental principle of the
remedy is that no one is allowed to take the law into his own hands. All that the
spoliatus has to prove, is possession of a kind which warrants the protection accorded
by the remedy, and that he was unlawfully ousted.'

[24] In Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi,18 it was said
that the mandament van spolie is a possessory remedy, the limited and

16 See also De Jager v Farah and Nestadt 1947(4) SA 28(W) at 35 and Sithonga v Minister of Safety
and Security 2008 (1) SACR 376 (TkHC) at 390G-391F.(The passage at 391A-B is wrong − see
Setlogelo v Setlogelo 1914 AD 221 at 227.)
17 Yeko v Qana 1973 (4) SA 735 (A) at 739D-G.
18 Bon Quelle (Edms) Bpk v Munisipaliteit van Otavi 1989 (1) SA 508 (A) at 512A-B: ‘Die mandament
van spolie is 'n besitsremedie waarvan die beperkte en uitsluitlike funksie is om die herstel van die
status quo ante te bewerkstellig (Oglodzinski v Oglodzinski 1976 (4) SA 273 (D) op 274F-G) en
daarom kom dit nie daarop aan dat die spoliator 'n sterker aanspraak op besit as die gespolieerde mag
hê nie of dat laasgenoemde inderdaad geen reg op besit het nie. Die beginsel is eenvoudig: spoliatus
ante omnia restituendus est ongeag die partye se daadwerklike regte op besit.’

exclusive function of which is to restore the status quo ante and it
therefore matters not that the spoliator might have a stronger claim to
possession than the person spoliated or that the latter has indeed no right
to possession. The principle is simple: possession must first be restored to
the person spoliated irrespective of the parties’ actual rights to
possession.

[25] It is clear from all these authorities that questions of illegality or
wrongfulness of the spoliator’s possession are irrelevant. The former has
to be determined by the criminal courts; and the latter concerns the merits
of the case which are irrelevant – unless the applicant claims a
substantive right to possession and thereby in effect forces an
investigation of the issues relevant to the further relief claimed.19 That
situation did not arise in this case.

[26] Applying the principles outlined in these authorities, it is clear that
the findings by the full court in Schoeman20 are wrong. In that case, the
police obtained a search warrant.  They searched the business premises of
the applicant and seized various items. There was no dispute that the
machines were gambling machines; that they were in the applicant’s
possession and that he did not hold any licence or permit issued by the
Board to possess the machines. In his application, the applicant sought an
interim order declaring the search warrant unlawful and directing the
respondents to restore possession to him of all the items seized. The court
dismissed his application on the basis that section 9 of the National
Gambling Act precluded him from possessing the machines without a

19 See Street Pole Ads Durban (Pty) Ltd v Ethekwini Municipality 2008 (5) SA 290 (SCA) para 15.
20 See n 11 above.

licence. The full court in dismissing the appeal relied on the decision of
Carlisle J in Yuras v District Commandant of Police, Durban21 and held
that the appellant was not entitled to an order for restoration of his
machines until he produced an appropriate licence.

[27] This conclusion by the full court in Schoeman is wrong and is
overruled. The appellant, who was in undisturbed and peaceful
possession, was entitled to the restoration of his machines once the search
warrant was declared unlawful and set aside. The question of lawfulness
or illegality was irrelevant. Furthermore, the court’s reliance on Yuras is
misplaced as that case involved an issue relating to consequences flowing
upon the conviction of a wrongdoer and where goods used in the
commission of an offence had been seized.

[28] In Yuras, the police had set up a trap. The applicant unlawfully and
without permission bought unwrought gold from a police officer. He was
arrested and the gold was seized. The applicant was convicted of buying
gold in contravention of the Exchange Control Regulations as he was not
an authorised dealer. He subsequently instituted an application claiming a
refund of the money paid for the gold during the transaction, alternatively
that the gold be returned to him in the event of his being able lawfully to
possess or lawfully deal therewith. The court held that the applicant was
not authorised to have the gold and had not established ownership
thereof. Carlisle J accordingly dismissed the application stating that he
could not relieve the applicant of the consequences of his illegal conduct
by restoring possession of the gold to him.

21 Yuras v District Commandant of Police, Durban 1952 (2) SA 173 (N) at 178.

(d) Public Policy considerations
[29] Counsel for the respondents confirmed that no criminal
proceedings were pending against the appellant. He however urged this
court to have regard to public policy considerations as we are dealing
with legislation that had been enacted in the public interest. He urged us
not to restore the machines to the appellant but to grant a preservation
order in favour of the Board. In this regard, counsel referred us to the
decisions of Zuma v National Director of Public Prosecutions; Thint
(Pty) Ltd v National Director of Public Prosecutions22 and Sello v
Grobler.23

[30] These cases do not assist the respondents as the facts thereof are
distinguishable from the facts of the instant case. In Thint, criminal
proceedings were pending, hence the grant of a preservation order.
Similarly the reliance on Sello is misplaced as that case did not involve a
spoliation application.24

[31] In this matter there are remedies available to the Board. One would
have expected it to have taken steps to obtain a new search warrant
immediately after Leeuw JP had declared the warrant invalid. Nothing
precluded it from doing so. It can do so now. A period of 15 months has
elapsed since the order was made by Leeuw JP and yet no action has been
taken against the appellant. I am aware of the order by Hendricks J on 3
June 2010 that pending the outcome of the application, the machines were
to remain in the appellant’s possession; but that order could not prevent

22 See n 7 above, paras 220-223.
23 Sello v Grobler 2011 (1) SACR 310 (SCA).
24 Ibid para 10.

the execution of a new and valid warrant − which would have rendered
the application academic (except for the question of costs).

(e) Abuse of Court Process
[32] It remains for me to deal with the issue relating to the allegation
that the appellant has abused the court process. Counsel for the
respondents submitted that the appellant had, in ex parte proceedings,
failed to disclose all the material facts. He contended that Moloto AJ
would not have granted the order had this been done. There is no merit in
this submission. In my view, the appellant had a duty to disclose only
what might influence the outcome of the spoliation application, that is, he
had to establish the existence of the two requirements mentioned above.
These were alleged in his founding affidavit. He had no duty to prove the
lawfulness of his possession. As already stated, the issues raised on
behalf of the respondents related to the lawfulness of the possession and
are irrelevant for the purposes of the application. There is no doubt that
the appellant has succeeded in establishing that he was in peaceful and
undisturbed possession of the machines and that he was unlawfully
deprived of that possession.

[33] There is however a legitimate criticism with regard to the use of ex
parte proceedings in this case. Even on ordinary principles, there was no
reason why notice should not have been given to the respondents. But in
addition, the provisions of section 35 of Act 62 of 1955 had to be
complied with as the respondents are all organs of state. The appellant
was bound in terms of that section to afford the respondents notice of the
application. There was accordingly no justification for ex parte

proceedings for this reason as well. The appellant however, cannot be
non-suited because of this. In my view costs should follow the result.

[34] For all these reasons the appeal must succeed. In the result the
following order is made:

The appeal is upheld with costs, including the costs of two counsel.
The order of the court below is set aside and replaced with the
following:
'(a) the rule nisi issued by Moloto AJ on 30 January 2010 is
confirmed;
(b) the search warrant issued by the sixth respondent on 22
January 2010 is declared unlawful;
(c) the first, third and fourth respondents are ordered forthwith
to restore the assets referred to in annexure 'WGP1' to the first
respondent's answering affidavit, to the applicant;
(d) the first, second, third and fourth respondents are ordered to pay
the applicant's costs jointly and severally, the one paying the
other to be absolved, such costs to include the costs
consequent upon the employment of two counsel'.

___________________
NZ MHLANTLA
JUDGE OF APPEAL

APPEARANCES:

For Appellant:
J P de Bruin SC (with him N Jagga)
Instructed by:
Vardakos Attorneys,Vereeniging
Correspondents:

Honey Inc, Bloemfontein

Respondents:
M Donen SC (with him ZZ Matebese)
Instructed by:
Mketsu & Associates Inc, Pretoria
Correspondents:
Matsepes Inc, Bloemfontein
SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

31 May 2012

STATUS

Immediate

Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal.

Svetlov Ivanov v North West Gambling Board

Today the Supreme Court of Appeal (SCA) upheld an appeal against an order
of the North West High Court, Mafikeng (Leeuw JP). The learned judge
president found that Mr Svetlov Ivanov (the appellant), was not entitled to a
spoliation order. She ordered the appellant to return the machines to the
police and the North West Gambling Board (the respondents), with the
qualification that he was only entitled to the return of the items which he might
lawfully possess.

The background to the litigation was as follows:
Mr Wilfred Pitso, an inspector employed by the North West Gambling Board,
inspected the business premises of the appellant. He thereafter requested
members of the South African Police Service (SAPS) to conduct further
investigations and to apply for a search warrant. Pursuant thereto, the police
applied for the search warrant, which was eventually issued by the Magistrate
of Rustenburg, the sixth respondent. A search at the appellant’s business
premises revealed gambling machines. These were seized by the police as
the appellant did not have a licence, issued in terms of the North West
Gambling Act, to possess them. The appellant subsequently applied in the
high court for an order declaring the search warrant null and void and directing
the respondents to restore possession of the machines to him. A rule nisi was
granted in terms of which the search warrant was declared null and void and

the respondents were ordered to restore the machines to the appellant with
immediate effect. The respondents complied with the order.

On the return day, the matter came before Leeuw JP, who declared the
search warrant invalid, but held that the search and seizure were not unlawful
as the search warrant had not been set aside when the police executed it. The
judge president stated that the police were empowered to conduct the search
and seizure operation. She further held that the appellant had adopted the
wrong procedure and relied on a wrong cause of action. In addition, the judge
president ordered the appellant to pay costs on a punitive scale on the basis
that he had failed to disclose material facts in his founding affidavit and give
notice to the respondents.

The SCA had to consider two issues, namely, the effect of the declaration of
invalidity of the search warrant and whether the appellant was entitled to a
spoliation order. Regarding the first question, the court concluded that the
judge president was correct when she declared the search warrant invalid but
had erred when she held that the order of invalidity had not affected the
lawfulness of the search and seizure. The court held that the lawfulness of the
search and seizure was dependent on the legality of the search warrant and
that once the order of invalidity was issued, the necessary consequence was
that the police had acted unlawfully as they had no power to search in terms
of that warrant. The SCA accordingly held that it was competent for the
appellant to apply for a spoliation order.

In respect of the second issue, the SCA held that the appellant had
established that he was in peaceful and undisturbed possession of the
machines and that he was wrongfully deprived of that possession. The fact
that his possession was unlawful or illegal was irrelevant as that would go to
the merits of the dispute. The SCA accordingly held that the appellant was
entitled to a spoliation order and consequently to restoration of the machines.

In conclusion the SCA stated that the Board had various remedies at its
disposal and nothing precluded it from taking steps to obtain a new search
warrant immediately after the judge president had declared the warrant
invalid. With regard to the allegation that the appellant had abused the court
process, the court held that the appellant had a duty to disclose only what
might influence the outcome of the spoliation application and had no duty to
prove the lawfulness of his possession. The only legitimate criticism that could
be levelled against the appellant related to his failure to give notice to the
respondents before the application was heard. The appellant, however, could
not be non-suited because of this. Consequently, the SCA upheld the appeal
with costs.

--- ends ---