Abram Sello v Inspector Grobler and Others

The appellant, Abram Sello, was a pharmacist and owner of Lake Field Pharmacy in Benoni, Gauteng. In June 2008, the South African Police Services' Organised Crime Unit received information from the Medicines Regulatory Affairs Inspectorate (MRAI) that the appellant was suspected of selling scheduled medicines without prescriptions. On 8 July 2008, police set a trap operation under s 252A of the Criminal Procedure Act. An undercover inspector purchased Stilpain and Stilnox tablets (schedule five drugs requiring prescription) from the appellant's employee, Thobeka Gladys Bambisa, who was not a pharmacist and not permitted to dispense medication. The police and MRAI inspectors subsequently searched the pharmacy without a warrant, seizing various items including scheduled medicines with removed blister strips and expiry dates, a drum of Myprodol capsules, allegedly stolen Pholconcor and Ziak tablets, computers, the appellant's laptop, and personal documents. They also searched his vehicle and seized his identity book, cheque books, documents and keys. A further search of his home was conducted without warrant, yielding more tablets and R114,000 in cash. The appellant and Ms Bambisa were arrested. The appellant applied to the South Gauteng High Court for a declaration that the searches were unlawful and an order for the return of all seized items. The High Court dismissed the application with costs. Leave to appeal was granted to the Supreme Court of Appeal.

• Whether the warrantless searches of the appellant's pharmacy and home were lawful
• Whether the appellant was entitled to the return of all seized items following an unlawful search and seizure
• What is the proper scope of a court order for the return of items seized during an unlawful search

The appeal was upheld with costs. The order of the court below was set aside and substituted with an order: (a) declaring the respondents' searches of the applicant's pharmacy and home on 8 July 2008 unlawful; (b) directing the respondents forthwith to return to the applicant all items seized pursuant to those unlawful searches that the appellant may lawfully possess; and (c) ordering the respondents to pay the costs jointly and severally, the one paying the other to be absolved.

The binding legal principles established are: (1) A warrantless search and seizure under s 22 of the Criminal Procedure Act 51 of 1977 is unlawful unless the police demonstrate grounds for believing that obtaining a warrant would cause delay that would defeat the object of the search; (2) Inspectors must show proper authorization under the relevant legislation (such as the Medicines and Related Substances Control Act 101 of 1965) to conduct lawful searches; (3) Following an unlawful search and seizure, a court order for the return of seized items is limited to those items that the applicant is lawfully entitled to possess; (4) An allegation of peaceful and undisturbed possession, while sufficient for a spoliation application, is insufficient to obtain return of all seized items following an unlawful search - the applicant must establish lawful entitlement to possession; (5) The State may retain seized items that are required as evidence in pending criminal proceedings, or that constitute contraband, stolen property, or items the applicant cannot lawfully possess, even where the search and seizure were unlawful.

The court noted that the matter had been postponed to enable the parties to file a schedule of items they agreed could be returned to the appellant, but no consensus could be reached. The court observed that the appellant's founding affidavit did not deal with his lawful entitlement to possess all the items seized nor specify what exactly he was lawfully entitled to have returned. The court remarked that mere allegation of peaceful and undisturbed possession would have sufficed had this been a spoliation application, but it was not. The court also noted without detailed analysis that among the seized items were allegedly stolen items, expired medication without proper identifying details, and drugs that had expired since seizure - all of which obviously could not be returned to the appellant. The judgment was expressly marked as having 'No Precedential Significance', though it does establish clear legal principles regarding the requirements for lawful searches and the scope of relief available for unlawful searches.

This case is significant in South African criminal procedure law as it clarifies the requirements for lawful warrantless searches and the appropriate remedies for unlawful searches and seizures. It reinforces that police must demonstrate proper grounds for conducting warrantless searches under s 22 of the Criminal Procedure Act 51 of 1977 (i.e., that delay would defeat the object of the search), and that inspectors must show proper authorization under specific legislation. The judgment also establishes the important principle that following an unlawful search and seizure, the court's power to order return of seized items is limited to those items the applicant is lawfully entitled to possess. This distinguishes the remedy from a spoliation order, which focuses solely on peaceful and undisturbed possession. The case protects constitutional rights to privacy and property while balancing the State's interest in retaining evidence for criminal proceedings and preventing the return of contraband, stolen goods, or items the applicant cannot lawfully possess. It has no precedential significance as indicated in the judgment header.