Malherbe v S

Neil Malherbe was charged in the Regional Court, Nelspruit, with seven counts of contravening s 24B(1)(a) and one count of contravening s 24B(1)(c) of the Films and Publication Act 65 of 1996, relating to possession and importation of child pornography. The charges related to four films, one book, seventeen images on his laptop and five images on his notebook, all seized pursuant to a search warrant issued by a magistrate. The warrant was issued based on a statement by Captain Swart that was not sworn on oath - it merely contained a certification that the deponent knew and understood the contents and signed in the certifier's presence. At trial, Malherbe challenged the validity of the search warrant in a trial-within-a-trial. The trial court ruled the warrant was valid. Malherbe then made admissions under s 220 of the CPA and was convicted on counts 3, 7 and 8, sentenced to three months' imprisonment per count (suspended for 3 years), and his name was entered into Part B of the National Child Protection Register. The High Court dismissed his appeal against conviction but remitted sentencing. The Supreme Court of Appeal granted special leave to appeal.

• Whether a search warrant issued under s 21(1)(a) of the Criminal Procedure Act 51 of 1977 without information being provided on oath is valid
• Whether evidence obtained pursuant to an invalid search warrant is admissible
• Whether admissions made after a ruling that an invalid search warrant was valid should be excluded under s 35(5) of the Constitution as rendering the trial unfair

The appeal succeeded. The convictions and sentence were set aside, including the order in terms of s 120(4) of the Children's Act 38 of 2005 (which had placed the appellant's name on the National Child Protection Register).

A search warrant issued under s 21(1)(a) of the Criminal Procedure Act 51 of 1977 must be based on information provided on oath. A warrant issued on the basis of an unsworn statement is invalid. Where a search warrant is invalid, all evidence seized pursuant to that warrant is inadmissible. Furthermore, where admissions are made after a court incorrectly rules that an invalid search warrant was valid, those admissions are compelled by the erroneous ruling and must be excluded under s 35(5) of the Constitution as their admission would render the trial unfair. The constitutional requirement of a fair trial demands strict compliance with statutory procedural requirements for the issuance of search warrants.

The court noted significant problems with the convictions on counts 3 and 8 beyond the search warrant issue. On count 3, it was unclear from the charge sheet whether the appellant was being charged with possession of an unrated film, for which no evidence was presented, and the conviction was based on a single image from the film rather than the film itself. On count 8, the charge sheet related to images on the appellant's notebook but the conviction was based on images from his laptop. The court also noted that the admissions made under s 220 were insufficient to justify conviction as they did not establish mens rea (knowledge of possession and unlawfulness of possession). The court further observed that it was unnecessary to consider whether the definition of 'child pornography' in the Films and Publication Act could withstand constitutional scrutiny, leaving this question open for future determination.

This case reinforces the strict requirements for the issuance of search warrants under the Criminal Procedure Act, particularly the mandatory requirement that information must be provided on oath as specified in s 21(1)(a). It demonstrates that non-compliance with this requirement renders a warrant invalid and all evidence seized thereunder inadmissible. The case also illustrates the application of s 35(5) of the Constitution regarding exclusion of unconstitutionally obtained evidence, particularly where such evidence compels subsequent admissions. It affirms that South African courts will not tolerate procedural shortcuts in the issuance of search warrants, even in cases involving serious offences such as child pornography. The judgment protects the constitutional rights to privacy and fair trial by ensuring strict adherence to statutory procedural safeguards.