Challenge to Phahlane-linked warrants fails
A challenge to the validity of a search and seizure warrant related to an investigation into an alleged cars for tenders scam possibly implicating former acting police commissioner Khomotso Phahlane and police supplier Keith Keating, failed in the South Gauteng High Court on Friday.
"For all those reasons I am not satisfied that the applicants have made out a case for the relief they seek and that the application falls to be dismissed," ruled Judge Jody Kollapen.
At issue was a warrant needed to conduct the searches and seizures that would form part of a fraud, theft, corruption, racketeering and money laundering investigation under the Prevention of Organised Crime Act.
Kollapen made it clear he was not ruling on whether anybody was guilty or not, but just on the validity of the warrant issued on December 1, 2017, for the search and seizure operation that was conducted on December 4, 2017.
A corruption case against Phahlane, his wife Beauty and co-accused, Durand Snyman was withdrawn in the Commercial Crimes Court in June after the State's application for a further postponement was denied.
The period in question in the warrant includes 2014, when Phahlane was division head of the police's forensics department. Part of the investigation was to establish how Phahlane paid for his cars and his house in Pretoria.
The applicants were Keating, his company Forensic Data Analysis (FDA) which won police contracts, car dealer Durand Snyman, and Christo De Bruin, a friend of Snyman.
The respondents were the Senior Magistrate IP Du Preez who authorised the warrant, the Minister of Safety and Security, Colonel Kobus Roelofse of the Directorate for Priority Crimes Investigation in the police, Colonel J Du Plooy, and the executive director of the Independent Police Investigative Directorate (IPID).
Roelofse had justified the application for a warrant in an affidavit saying it was needed for searches related to an investigation into a R45m police forensics contract that had been recommended in a day, in favour of Keating's FDA. An extra R7m unaccounted for in the tender was allegedly paid to Keating's company, bringing the total to R52m.
He was investigating whether Keating moved money via Snyman's bank account, through the dealerships, and then to some police officers who got free cars or over-inflated trade-ins on their private vehicles, allegedly to influence tenders.
The applicants had raised technical problems with the warrant, and had argued that this made the searches and seizures unlawful.
They questioned the vast amounts of documents including bank statements and contract files allowed to be examined and seized at a number of listed addresses, including Phahlane's private home.
They had submitted that the affidavit for the warrant was not commissioned and signed properly, and that the commissioning officer had stated that a "she" had come for the affidavit to be signed and stamped, and not a "he", which would have been Roelofse.
Kollapen settled that by saying the commissioner of oaths had clarified the gender issue, and other issues raised, and decided that the commissioning process was not invalid.
Next was a challenge to the IPID and three civilians being allowed to be part of the search and seizure operation. The applicants had submitted that only the police could do this job.
Kollapen found that the Section 24(2) of the IPID Act does allow for IPID investigators to be part of search and seizure operations.
Kollapen said that although it was concerning that some police work had been assigned to three civilians listed on the warrant, he accepted that sometimes specialist help was required. One was a valuator for Phahlane's house, and two were Treasury advisors from Bowman Gilfillan who would help decide whether documents would be relevant.
De Bruin had challenged why he was on the warrant because he had no link to the alleged crimes, and said the warrant contained the identity number of his daughter who lived in Potchefstroom.
Kollapen pointed out that the man had received a car from Keating, which he had registered the car in his daughter's name, and that is why he had been included on the warrant.
Kollapen also awarded costs against the applicants, for two counsel, plus for two counsel at an earlier hearing related to the matter.