Feedmix (Private) Limited v Detective Sergeant Denote Muchihwa and 4 Others

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                                                                                       HH 243-21
                                                                                      HC 1491/21
                                                                          Ref Case No HC 3100/21
FEEDMIX (PRIVATE) LIMITED
versus
DETECTIVE SERGEANT DENOTE MUCHIHWA
and
THE COMMISSIONER GENERAL OF THE
ZIMBABWE REPUBLIC POLICE
GODWIN MATANGA N.O.
and
PROVINCIAL MAGISTRATE JUDITH TARUVINGA
and
HON KAZEMBE KAZEMBE (N.O.)
(In his capacity as the Minister of Home Affairs and Cultural Heritage)


HIGH COURT OF ZIMBABWE
TSANGA J
HARARE, 21 April & 12 May 2021


Urgent chamber application


BK Mataruka, for applicant
A Zikiti, for respondents


       TSANGA J: This is n an urgent chamber application seeking to stop the execution of
a warrant of search and seizure No. 1227/21 issued by the Magistrate who is cited as the third
respondent in this matter. The first respondent is a sergeant detective with the Zimbabwe
Republic Police whilst the second respondent is cited in his capacity as the Commissioner
General of Police. The fourth respondent is the Minister of Home Affairs who is responsible
for the Zimbabwe Republic Police. He is cited in his official capacity.
       The following interim relief is sought:
       “Pending determination of this matter the Applicant is granted the following relief:
           1.  1st and 2nd respondents and all those working with and assisting them are hereby
              interdicted from executing and acting upon the warrant of search and seizure number
              1227/21 granted to the 1st respondent by the 3rd respondent in relation to the applicant.
           2. The 1st and 2nd respondent be and are hereby ordered within 24 hours of the granting
              of this order, to return to the Applicant’s possession all the documents that would
              have been removed from applicants premises by the time of granting this order.
       The final order to be sought is as follows:
           1. The warrant of search and seizure number 1227/21 issued by the 3 rd Respondent to
              the 1st Respondent relating to the Applicant be and is hereby set aside.
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           2. The 1st, 2nd, 3rd and 4th respondents shall bear the applicants costs at a legal practitioner
              and client scale jointly and severally the one paying the others to be solved.”
Background facts
       The first respondent initially obtained a warrant of search and seizure against the
applicant on the 7th of April 2021 being warrant No. 1162/21. The applicant filed an urgent
chamber application challenging that warrant. An order by consent cancelling the warrant
was reached on the 12th of April 2021 and filed with the judge who granted the order. As the
order was by consent, the matter was never heard on the merits and consequently no reasons
were captured concerning the circumstances of the consent. However, a perusal of the urgent
application filed that led to the order by consent reveals on the face of it that it had been filed
on the basis that the warrant was defective for the following reasons:

   1. The applicant denied making any criminal complaint and averred that Yitbarek
       Yemanu Tekie who purported to be CEO of applicant was never such and was in fact
       an ex board member. The warrant was thus averred to an abuse of court process.
   2. The warrant did not identify the police officer to execute the warrant
   3. It did not identify the address or premises to be searched.

   The order by consent granted on the 12th of April 2021 read as follows:

       “It is ordered by consent that:
               1. The warrant is cancelled.
               2. The documents removed in terms thereof to be returned within 48 hours
               3. There be no order as to costs.”


       On the 14th of April 2021, a new warrant was sought. This was notably hot on the
heels of the cancellation of the first one by consent two days earlier. On the 15 th of April the
applicant filed this urgent application.
       The gist of this application emanates from the fact that the applicant construes the
order by content which the parties entered into on the 12 th of April 2021 as having been
totally dispositive of the issue of the search warrant. In essence, the argument is that the order
by consent was issued without any reservation. On urgency the applicant argues that it never
filed a complaint and as such the warrant is effectively an abuse of police powers by the first
respondent in particular acting on behalf of the so called complainant. Applicant also says the
warrant, emanating as it does from false facts by the complainant, should be set aside.
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Applicant goes as far as to impute fraud and malice especially on the part of the first
respondent.
       The first and second warrants are also said be a mirror image of each other save for
the addition of the name of the officer to execute the warrant, and, the address of the
applicant. Moreover, the second warrant is said to have been obtained whilst the first and
second respondents were in contempt of the court order by consent as they had not returned
applicant’s documents at the time of filing of this application. They are thus said to have
approached the court with proverbial “dirty hands” when they obtained the second warrant.
The search warrant is therefore said to be unlawful. Suffice it to state that by the time of the
hearing of this matter, these documents had been returned, an issue I will canvass later in
terms of its import on the warrant.
       Applicant also says that it will suffer irreparable harm to confidential information to
which the first and second respondents have no right to and maintains that the warrant is a
violation of the right to privacy. The balance of convenience is said to favour the applicant on
the basis that it cannot be inconvenient for the police to follow the law.
       On the day of the hearing of this matter on the 21 st of April only the third respondent
being the Magistrate who granted the search warrant, had filed an opposing affidavit in which
she opposed the award of costs against her. This was on the basis that as a judicial officer she
had simply been carrying out her duties. The first, second and fourth respondents had not
filed any opposing affidavits. Thus submissions for these other respondents were made at the
hearing without the parties having filed any written opposing affidavits.
       Ms Zikiti who appeared on behalf of all respondents argued that the first warrant had
been withdrawn for the basic reason that it was defective in that it did not mention the
executing officer and neither did it mention the property to be seized. A criminal complaint
having been made, the thrust of her submissions were essentially that the police have a duty
to investigate a criminal complaint unfettered. Regarding the order by consent her standpoint
was that the order merely captured a non-objection by the applicants to the cancelling of a
defective warrant as opposed to being a consent by respondents to all substantive averments
as captured by the applicant in the urgent chamber application.
       Mr Mataruka in response maintained that the respondents had not challenged the
warrant on substantive grounds, being essentially that the applicant was in control and in
charge of its affairs whilst the complainant had misrepresented his status in the applicant. Mr
Mataruka also highlighted that there are a multiplicity of cases between the parties that are
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before the courts and that the intention behind this warrant by the complainant is to enable
him to gain information and an advantage for one of the pending civil cases against the
applicant.
       I requested that heads of argument be filed on the diametrically opposed standpoints
regarding the order by consent. Applicant indicated its desire to file an answering affidavit
and hence the need for the opposing submissions to be in writing. Time frames were
accordingly set out with the parties for the filing of opposing affidavits and subsequent heads
of argument. The opposing affidavits would be filed on the 23 rd of April whilst applicant’s
answering affidavit would be filed on the 26 th. Applicants’ heads of argument would follow
on the 28th whilst those of the respondents would be submitted on the 30th.
       Whilst the respondents indeed filed their opposing affidavits on the 23 rd with the
court, they had not served these on the applicant by the 26 th. This led the applicant to
immediately write a letter seeking that the provisional order be instantly granted on the
grounds of respondent’s failure to file their opposing affidavits. I chose to regulate these
proceedings by directing the respondent’s lawyer attend to the omission and I extended
timelines for the applicant to submit its answering affidavit and heads of argument. My
reasoning was as follows. The matter had already been argued by the parties against the
backdrop of there being no requirement that an opposing affidavit be filed before hearing an
urgent matter. Having already heard the opposing arguments on the 21st of April, there would
be zero prejudice to the applicant in extending the timelines since applicant was already
familiar with the opposing arguments and had dealt with them at the hearing. What was
important was for the respondent’s lawyer to attend to her oversight. The inconvenience to
the applicant in submitting their heads of argument would be rectified by extending still
within acceptable parameters for an urgent matter, the time lines for the submission of the
answering affidavit and heads of argument for the applicant. The respondents duly served the
applicant and all parties complied with the submission of their papers. Therefore the point in
limine raised by applicant regarding the respondent’s default in their heads of argument lacks
merit and is accordingly dismissed.

       Suffice it to point out that the material submission by the parties remained as has
already been articulated. The first and second respondents did not shift from the core
argument made earlier that the warrant was defective hence the consent to its withdrawal.
What was stressed was the need for law enforcement officers to be able to carry out their
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criminal investigation duties regardless of who has filed a complaint. In the answering
affidavit applicant re-emphasised that the first respondent was in reality working in cahoots
with the complainant. Also re-emphasised in responding to the submissions was that the
consent granted had been a blanket one.

The legal arguments

       The essence of applicant’s heads of argument is that courts are enjoined to intervene
where the rights of privacy of a citizen are at stake. In this instance, the argument is that there
was no basis for the police to re-approach the courts for another warrant when they were now
fully aware that they had been misled as to complainant’s standing in Applicant Company
Relying on the case of Capital Radio Private limited v Minister of Information and Ors 2000
(2) ZLR 265 (H). Mr Mataruka also argued on behalf of applicant that the search warrants
should be interpreted with reasonable strictness in cases of doubt. Centrally, he underlined
that the respondents consented unreservedly to the setting aside of the warrant thereby
accepting the substantive factual assertions regarding the complainant’s standing. The
warrant is also said to be invalid on the basis that at the time it was issued the respondents
were yet to comply with the order which said they should return all seized documents.
       Ms Zikiti for the respondents zeroed in on s49 (1) (a) to (c) of the Criminal Procedure
and Evidence Act [Chapter 9:07] which allows the seizure of any article which on reasonable
grounds may afford evidence of the commission of an offence. She also emphasised the need
for there to be a warrant issued by the magistrate for such seizure and that in this instance the
magistrate was satisfied that there were reasonable grounds for the issuance of the warrant.
Regarding the fact that the complainant is not the CEO, she argued that a crime is committed
against the State and not individuals and hence there is no need for a company to give its
consent for one to make a report.
Analysis and disposition

       There is a need to strike a balance firstly between the police carrying out their law
enforcement duties relating to criminal investigations, and, secondly, protecting the rights and
freedoms of individuals or those affected by a search warrant. An unlawful search and seizure
would indeed affect liberties, in particular the right to privacy.

       In this application which seeks to interdict the respondents from carrying out a search
and seizure under a new warrant, the respondents render a full explanation of the context
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under which the order by consent cancelling the initial warrant came to be. As already
outlined, their concession centred on the admission that the warrant of search and seizure was
technically defective in its failure to mention the executing officer, the address or premises to
be search and the jurisdiction of the issuing court. That the warrant was defective in terms of
what it should contain was not in dispute. I am therefore inclined to accept this explanation of
why another warrant was sought almost immediately. If the intention of the consent order on
the part of the respondents had been to finalise the matter for good, it would make absolutely
no sense to seek another warrant immediately after withdrawal. An examination of the new
warrant shows that it does in fact rectify the very errors critical to a search warrant that had
been pointed out by the applicant in its application as making the warrant defective. The
respondents cannot be faulted for the standpoint that the consent to the cancellation was in
the narrower sense of cancelling a defective warrant.
       What is also of significance is that a warrant falls under the ambit of criminal
processes. Suffice it to say that civil complaints are not the concern in search warrants. Since
search warrants are not related to civil proceedings, the complainant’s alleged purpose for the
warrant is not the issue. The conditions for be met for a search warrant are clear. The place to
be searched and things to be seized must be articulated. To the extent that the original warrant
had defects with regards to some of these specificities, these had to be addressed.
       Moreover, a critical issue in determining the lawfulness of the warrant is whether
there is criminal matter at hand whose furtherance will be aided by the search and seizure.
The issue of the complainant not being a director of the company he complains about appears
to miss the vital fact that this is not a case of a complete stranger who has laid a criminal
complaint. He may not be the director but even the applicant acknowledges that there are
wrangles concerning share ownership. It is not denied that a criminal complaint has been laid
or that two directors of applicant, as averred by first and second respondents indeed face
fraud charges and are out on bail. The warrant of search and seizure permits the seizure of
documents which would help ascertain the criminal allegations. It also needs to be borne in
mind that the magistrate who issued the warrant of search and seizure must have been given
sufficient information to have made the independent determination that the warrant could be
issued under the circumstances, and, in particular, that there was adequate cause to issue the
warrant.
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       On whether the respondents obtained the new warrant whilst being in contempt of
court for failure to return the documents, Ms Zikiti pointed out that for contempt to be found,
the breach should have been wilful and malafide. She highlighted that first and second
respondents only became aware of the court order to return the documents when they were
served with the present application. This was because the memo about the first outcome had
not yet reached their hands. Whilst it can be argued that it was the duty of their lawyer to
advise them with speed, however, within state bureaucracies such delays are indeed plausible
even if regrettable. She further emphasised in argument that once they got to know of the
directive in the order to return the documents, they had immediately complied. Suffice it to
point out that by the time I heard this matter, the documents had indeed been returned. There
was therefore no longer any basis for an interdict to return the documents as that had already
occurred. In the final analysis, I am satisfied on balance with the respondent’s explanation
that contempt of court was not the intention. The totality of the circumstances as argued in
this matter do indeed point to a defective warrant that needed rectification.
       In the circumstances, the application to interdict the 1 st and 2nd respondents from
executing and acting upon the warrant of search and seizure number 1227/21 granted to the
1st respondent by the 3rd respondent in relation to the applicant, lacks merit.


       The application is dismissed with costs.




Gill, Godlonton & Gerrans, applicant’s legal practitioners
Civil Division of the Attorney General’s Office, respondent’s legal practitioners