- A businessman from Johannesburg successfully challenged a police raid on his home after the warrant used was found to be unlawful.
- The court ruled that police unlawfully delayed the case by refusing to file papers and hiding behind court rules.
- The search was declared invalid, and the State was ordered to pay legal costs.
When police entered Aubrey Maxwell Goldman’s property, they relied on a court warrant that allowed them to search his premises and seize items they believed were connected to criminal activity.
For Goldman, the raid was intrusive, disruptive, and distressing. He argued that the warrant should never have been issued, and that the search violated his rights. He took his case to the Gauteng High Court in Johannesburg, asking a judge to annul the warrant and declare the search illegal.
Importantly, the judgment did not explain why the police targeted Goldman. It did not specify what offence he was suspected of, what items the police claimed to be looking for, or what information was given to the magistrate to justify the raid. This lack of detail arose because the State never filed an affidavit explaining the basis for the operation. As a result, the court had to decide without evidence from the police outlining the reasons for the search.’
Court rejects legal gamesmanship
The court was not misled by the attempt to delay the case. Acting Judge JW Kloek made it clear that the police were required to submit their answering papers once the official record was presented. They did not do this, and instead claimed they were waiting for Goldman to amend his application.
Judge Kloek stated that there was no obligation on Goldman, and that the police could not remain silent while waiting for paperwork that might never arrive.
In his ruling, the judge said, “I find that there was no duty or obligation on Mr Goldman to have notified the police that he did not intend to amend the notice of motion.”
He added that the court rule cited by the State did not require Goldman to state whether he would change his case. “Upon a proper interpretation of Rule 53(4), it grants a discretion to Mr Goldman to do what the rule allows to be done.”
He pointed out that the police were mistaken to think their participation in the case was optional. “The police persisted with the notion that their answering affidavit is not due, which, of course, is incorrect.”
What further weakened the State’s position was that the police never challenged the substance of Goldman’s complaint. They did not explain why the warrant was issued, or whether the search itself was justified. “He furthermore did not join issue with the merits of the application,” the judge said.
Warrant and search declared unlawful
Since the police failed to defend the warrant, the court had little trouble granting Goldman’s request. Judge Kloek ruled, “The search and seizure warrant is hereby set aside.” He went even further and invalidated everything that followed from it. “The search undertaken is declared invalid and of no force and effect.”
The court also ordered the police to pay Goldman’s legal costs. Judge Kloek stressed that when the State acts unreasonably and forces a citizen to go to court, it must accept the consequences. “The ordinary rule that costs should follow the result must apply,” he ruled.
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