Minister of Safety and Security v Mustafa Mohamed and Others

A police superintendent applied for and obtained a search warrant under sections 20 and 21 of the Criminal Procedure Act 51 of 1977 from a magistrate, based on information on oath relating to alleged serious offences including terrorism and high treason. The warrant was executed at premises occupied by the respondents, resulting in the seizure of numerous items at one address. The respondents applied to the Western Cape High Court to have the warrant set aside and the seized items returned, alleging multiple defects in the warrant and its procurement. The court of first instance set the warrant aside, largely on the basis that there was allegedly no affidavit on oath before the magistrate. On appeal, the full bench accepted that an affidavit on oath had in fact been before the magistrate, but the majority nonetheless dismissed the appeal on the basis—raised mero motu—that the warrant was overbroad and that the magistrate had failed to apply his mind. The Minister, the police officer, and the magistrate appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The order of the full court was set aside and replaced with an order allowing the application to lead further evidence, upholding the appeal, and dismissing the respondents’ application to set aside the warrant with costs.

The case is significant for reaffirming strict limits on appellate courts in South Africa when dealing with restricted leave to appeal and for confirming that courts may not decide unargued issues mero motu without affording parties a hearing. Substantively, it clarifies the correct approach to the validity and interpretation of search warrants under sections 20 and 21 of the Criminal Procedure Act and cautions against an overly technical or expansive concept of ‘overbreadth’ that undermines lawful criminal investigations.