Professional Protection Alternatives (Pty) Ltd and Another v Van Der Spuy and Others

The two applicants are private security providers registered with PSIRA. The second to sixth respondents are members of SAPS involved in firearms control (FLASH units). Following a series of inspections and alleged incidents at Killarney Gardens and Klapmuts relating to their security officers escorting trucks, the sixth respondent applied ex parte to a magistrate (first respondent) for a search warrant under section 115(4) of the Firearms Control Act. The magistrate issued the warrant on 13 November 2023, authorising a search of the applicants’ premises and seizure of registers, firearms, and broad categories of electronic equipment. The applicants challenged the warrant on multiple grounds including invalid commissioning of the founding affidavit, failure to disclose prior compliance, overly broad terms, and that the supporting affidavit did not reveal reasonable grounds of an offence.

• Whether the commissioner of oaths (Sergeant Ridloff) was disqualified from attesting the supporting affidavit due to a personal interest in the matter.
• Whether the search warrant was issued on the basis of 'evidence under oath' as required by section 115(5) of the Firearms Control Act.
• Whether the supporting affidavit disclosed reasonable grounds to suspect that an offence had been committed under the Firearms Control Act.
• Whether the search warrant described the items to be seized with sufficient particularity and was intelligible.
• Whether the magistrate applied his mind to the application or merely rubber-stamped the request.
• Whether the applicants were entitled to review and set aside the warrant and to a costs order.

1. The respondents’ application to file a further affidavit is granted. 2. The magistrate’s decision of 13 November 2023 is reviewed and set aside. 3. The search warrant issued on 13 November 2023 is reviewed and set aside. 4. The second to sixth respondents are ordered to pay the costs, including costs of two counsel and reserved costs.

1. A commissioner of oaths who is listed as a member to execute a search warrant has a disqualifying interest in the application, and their attestation renders the supporting affidavit invalid, meaning the warrant is not based on 'evidence under oath' as required by section 115(5) of the FCA. 2. Section 20(5)(b) of the FCA does not require a security officer to be a permanent employee in order to be 'in the service' of a security service provider; independent contractors holding valid competency certificates qualify. 3. A search warrant is invalid if it fails to describe the items to be seized with sufficient particularity and employs overbroad, catch-all language that does not intelligibly limit the scope of the search.

While not strictly required for the decision, the court questioned the constitutional validity of procedures for a magistrate to obtain legal representation from the State Attorney when that office also represents an interested party. The court also noted that while it is not a legal requirement for the authorised officer to sign an acknowledgment of the delegation letter under the FCA, it would be a salutary practice for them to do so.

This judgment reinforces strict procedural and substantive safeguards for search warrants under the Firearms Control Act. It clarifies that a commissioner of oaths who is directly involved in executing the warrant has a disqualifying interest, rendering the supporting affidavit void. It interprets the phrase 'in its service' in section 20(5)(b) of the FCA to include independent contractors, not just permanent employees, and emphasises that search warrants must be intelligible and describe items with sufficient particularity, especially for electronic devices.