Director of Public Prosecutions (Gauteng Division) v Thato Molefe and Another

The two respondents, Thato Molefe and Zenzile Ndaba, together with a third accused (Peter Mhlanga, who died during the trial), were charged in the regional court with operating a drug laboratory manufacturing methaqualone (mandrax), dealing in drugs, possession of illegal firearms and ammunition under the Drugs and Drug Trafficking Act 140 of 1992 and the Firearms Control Act 60 of 2000. A Warrant Officer (Van Schalkwyk) from the Vaal Organised Crime Unit received information that Mhlanga was involved in manufacturing methaqualone. On 5 June 2016, he followed Mhlanga to premises in De Deur, Vereeniging, surrounded by high walls with no visible street name or house number. He obtained the address as "12 Marble Road, De Deur" via GPS. On 6 June 2016, Van Schalkwyk completed a pro forma search warrant which was signed by an Acting District Magistrate. On 7 June 2016, police executed the search, finding no drugs in the main house but discovering drug manufacturing operations in an outbuilding. Drugs and equipment with a street value of R26 million were seized. The search warrant was defective in two respects: (1) it was addressed to "all police officials" rather than naming specific officers; and (2) it contained the wrong address (12 Marble Road instead of Plot 24, Road 3), though the correct premises were located. Both the Warrant Officer and the Magistrate genuinely believed the pro forma warrant was legally correct. Van Schalkwyk informed the respondents of the warrant and their rights, conducted the search with the owner's consent, and did not enter the outbuilding himself but called forensic services. During a trial-within-a-trial on admissibility, the regional court ruled the evidence inadmissible based on S v Malherbe, finding that once a search warrant is defective, evidence obtained under it must be excluded. The State then closed its case and the respondents were acquitted under s 174 of the CPA. The full bench of the Gauteng High Court confirmed this decision. The DPP appealed to the Supreme Court of Appeal under s 311 of the CPA (automatic right of appeal on a question of law).

• Whether evidence obtained pursuant to a formally defective search warrant is automatically inadmissible
• The proper interpretation and application of section 35(5) of the Constitution regarding exclusion of unconstitutionally obtained evidence
• Whether admission of evidence obtained under a defective search warrant would render the trial unfair
• Whether admission of such evidence would be detrimental to the administration of justice
• The relevance of police good faith and objectively reasonable conduct in assessing admissibility
• The distinction between technical/formal defects and flagrant violations of constitutional rights
• Whether the matter became moot once the State closed its case

1. The appeal is upheld. 2. The order of the full bench is set aside and substituted with: (a) The appeal is upheld; (b) The order of the regional court is set aside and replaced with: (i) The material seized under the search warrant is found to be admissible; (ii) 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.

Evidence obtained pursuant to a formally defective search warrant is not automatically inadmissible under section 35(5) of the Constitution. The section requires exclusion only if admission would render the trial unfair OR be detrimental to the administration of justice. Where: (1) defects in a search warrant are technical/formal rather than substantive; (2) police acted in good faith with objectively reasonable conduct; (3) there was no flagrant or deliberate violation of constitutional rights; (4) the evidence is real evidence with high probative value; (5) no coercion was involved; and (6) the evidence could have been lawfully obtained through alternative means - the admission of such evidence will generally neither render the trial unfair nor be detrimental to the administration of justice. Police officers should not be penalized for seeking judicial authorization through a warrant when they could have proceeded without one under statutory powers such as section 22 of the CPA. The seriousness of formal defects must be assessed in light of whether police were genuinely unaware of technical requirements and whether they substantially complied with constitutional protections. The Court must conduct a holistic, context-specific assessment considering the nature of the evidence, its probative value, how it was obtained, the conduct of the police, the extent of procedural failure, and the potential detriment to the administration of justice from either admitting or excluding the evidence.

The Court made several obiter observations: 1. On the distinction between real and derivative evidence: While historically courts distinguished between tangible real evidence and self-incriminatory derivative evidence (confessions, pointing outs), this distinction can be misleading as highly probative real evidence often results from confessions. The more significant consideration is whether the accused was coerced. 2. On the nature of section 35(5): The provision represents a tension between respect for the Bill of Rights and respect for the judicial process. There are competing social interests - the imperative to bring criminals to justice (especially given South Africa's crime rate) versus ensuring police respect constitutional rights. Both wrongful acquittals based on technicalities and unfair convictions bring the administration of justice into disrepute. 3. On pre-constitutional jurisprudence: Section 35(5) at first appears to depart from the pre-1996 discretionary approach, but when the connection between fairness and interests of justice is understood, the distinction may be more one of form than substance. It is not a balancing test or discretionary approach, but a rule providing for exclusion if one of two conditions is met. 4. On professional conduct: The Court strongly criticized the conduct of the respondents' attorneys and counsel for: withdrawing without proper notice, failing to appear without adequate explanation, and showing disregard for the Court. The Court indicated it would refer their conduct to professional bodies for investigation and noted that but for the interests of justice, the matter would have been struck from the roll.

This judgment provides important clarification on the application of section 35(5) of the Constitution regarding admissibility of evidence obtained through constitutional violations. It establishes that formal or technical defects in search warrants do not automatically render evidence inadmissible. The decision reinforces that courts must conduct a context-specific inquiry considering: (1) the nature and severity of the rights violation; (2) police good faith and objective reasonableness; (3) whether conduct was flagrant and deliberate versus technical; (4) the probative value of the evidence; (5) whether evidence could have been lawfully obtained; and (6) the balance between protecting constitutional rights and the effective administration of justice. The judgment clarifies that S v Malherbe does not establish an absolute exclusionary rule, and distinguishes between cases involving coerced self-incrimination versus discovery of real evidence. It affirms the importance of not penalizing police who seek judicial authorization even when not strictly required, as this promotes respect for constitutional processes. The decision is significant for its practical guidance on when formally defective warrants will not result in exclusion of evidence, particularly in serious criminal cases where public interest in prosecution is high and police have acted reasonably and in good faith. The judgment also addresses procedural issues regarding mootness and the continuation of trials after appellate reversal of evidentiary rulings.