3. Declaring
any instruction or order given to Third Respondent or any of its
officials that the Applicant be prohibited from making deposits to
of withdrawing monies standing to his credit in current account no.
041 365 194 or 041 365 191, held at the Auspannplatz Branch of Third
Respondent to be null and void and of no force and effect.

4. Directing
the First, Second and Fourth Respondents to pay the costs of this
application jointly and severally the one paying the other to be
absolved.

5. Directing
Third Respondent to pay the costs of this application jointly and
severally with First, Second and Fourth Respondents, but only in the
event that Third Respondent opposes this application.

6.
Further and/or alternative relief.

The notice
of motion is supported by the applicant's affidavit. The first,
second and fourth respondents have filed a notice of their
opposition to the notice of motion; but the third respondent does
not resist the application.

The
applicant runs business as a tracing agent under the name and style
of Swanepoel & Kie, at 7 Daan Bekker Street, Windhoek; his
business entails tracing stolen vehicles and/or vehicles sold
subject to instalment sale agreements which the affected financial
institutions wish to reposes.

The
applicant holds a current business bank account No. 041 365 194 and
a trust bank account (with which we are not here concerned) with the
third respondent at Ausspannplatz Branch, Windhoek.

On April 7,
2000, the applicant deposited into his business account (the
account) a cheque in the sum of N$111 032-00 which, together with a
balance of N$11 124-76 already in the account, brought the total
balance to N$122 156-76. On April 10, the applicant withdrew from
the account the sum of N$89 000-00.

On April 14,
Constable Sebastian K Kock approached the applicant and quizzed him
about the N$111 032-00 cheque which he alleged had been stolen from
the Motor Vehicle Accident Fund. On April 15, the applicant could
not be allowed to withdrew N$500-00 from the account because of an
intervention by the Namibian Police not to allow the cashing of any
of the applicant's cheques drawn on that account. A Mr Van Rooyen,
an official of the Ausspannplatz Branch of the third respondent,
confirmed to the applicant that the account had been frozen at the
instance of the Namibian Police. A search warrant, dated April 12
but date-stamped April 11 (Annexure C), was issued by the Windhoek
Magistrate's Court in terms of sections 43 and 21 of the Criminal
Procedure Act No 51 of 1977.

Mr Miller
represents the applicant and Mr Campher represents the first, second
and fourth respondents.

Mr Campher
takes up a point in
lumine, namely,
that the matter is not urgent for the following two reasons: (1) the
applicant is at liberty to open any number of new business accounts;
and (2) the only reason the applicant wishes to operate this
specific account is because he wishes to withdrew the rest of the
money which represents the proceeds of crime, namely, the alleged
theft of the cheque. But Mr Miller counters that the matter is
clearly urgent as the applicant is not allowed to operate his
account.

It is trite
that urgency does not only relate to life or liberty, but also
includes commercial interests which may justify the invocation of
rule 6(12) of the Rules of court, no less than any other interests.
See per Goldstone, J. (as he then was) in Twentieth
Century Fox Film Corporation v Anthony Black Films (Pty) Ltd 1982(3)
SA 582(W) at
586 F-G. A business account, as in the present case, evidently
embraces commercial interests. The reasons canvassed by Mr Campher
do not in any way detract from the fact that the matter is urgent.
Thus, condonation of the applicant's non-compliance with the rules
of Court relating to forms and service is justified in this matter.

With regard
to the merits of the application, Mr Campher concedes in his heads
of argument as well as in his viva
voce submission
before me that "the freezing of the entire account was probably
not the right way to keep the money (sic)
safe
by means of the search warrant ..." What the first, second and
fourth respondents sought to achieve through the search warrant was
to confiscate the balance of N$17 002-55 as a prospective court
exhibit and thereby frustrate the applicant's possible withdrawal of
the said sum.

At this
juncture, it is fitting to examine the relevant portions of the
search warrant which may be condensed to read as follows:

"TO ALL POLICEMEN

I Whereas it appears to me
from information on oath that there are reasonable grounds to
believe that, within the Magisterial District of Windhoek there is

II

an article, to wit a cheque (sic)
in the amount of N$111 032.00 as well as all relevant documentation
(a)-(c)...

(d) is on reasonable grounds
believed to be concerned in the suspected commission of an offence
and which is in the possession of (sic) or under the control of
(sic) or upon or at the premises of Standard Bank, Ausspannplatz.
THESE ARE THEREFORE to direct you to search during the daytime
...the identified premises ... and to seize the said cash of N$110
000.00/cheque and all relevant documentation if found and to deal
with it according to the powers granted by section 30 of the
Criminal Procedure Act and bring it before me to be dealt with
according to law."

The search
warrant was dated April 12, 2000 but date-stamped April 11, 2000, by
a Windhoek Magistrate. On April 18, Constable Kock, accompanied by
other Namibian Police officers, served the search warrant upon Mr
van Rooyen, an official of the third respondent, seized the (already
cashed) cheque and instructed Mr van Rooyen to freeze the
applicant's business account pending the finalisation of a criminal
investigation into the alleged stolen cheque.

The present
enquiry is essentially limited to two issues: (1) whether money in a
bank account is liable to seizure as a potential court exhibit on
the authority of a search warrant? and (2) whether the search
warrant should be upheld? Mr Miller strongly argues that both (1)
and (2) should be answered in the negative. Quite understandably,
however, Mr Campher's approach to both questions is diametrically
opposed to that of Mr Miller.

(1) above
raises the question whether the proceeds of the alleged stolen
cheque are identifiable. As Millin, J. said in Stern
Ruskin, N. O. vAppleson, 1951(3) SA 800 at 811 F-G:

"It is quite true that money
like any other species of property may be interdicated; but then it
must be shown that the money to be interdicted is identifiable ..."

See also
Buckingham
v Doyle and
Others 1961(3) SA 384 at 391 A-B.

z

It has long
been judicially recognized that the relationship between a bank and
a customer is one of debtor and creditor. When a customer deposits
money into his/her bank account, ownership thereof passes to the
bank subject to the bank's obligation to honour cheques validly
drawn by the customer. See S v
Kotze 1965(1) SA 118 at
125 A; and Dantex
Investment Holdings v Mutual Explosives 1990(1) SA 736 at 740 B.
Once
money is paid into a bank account, a mixing of funds occurs and such
money, therefore, becomes unidentifiable. As De Vos, J., aplty
observed in Amalgamated
Society of Woodworkers of S.A. and Another v Die 1963 Ambagsaal
Vereniging 1976(1)
SA 586(T) at 596 B-C:

"In any event, once the
money was paid over it became unidentifiable and rights of
ownership, if any, were lost. The money can, therefore, not be
vindicated."

It follows,
on the foregoing authorities, that once the allegedly stolen cheque
was deposited into the applicant's account, the resultant money
became unidentifiable and could, as such, not be seized even under
the authority of a search warrant. I would say, however, that the
applicant's right to the balance in the account is attachable.

As to the
question whether the search warrant should be upheld, its terms are
decisive. It is indisputable that although the search warrant
commands officers of the Namibian Police Force to seize "N$110
000-00/cheque..." from the third respondent, and quite apart
from the fact that the warrant could not confer power of seizure of
money from the applicant's account, the balance in the account was
not N$110 000-00, but

N$17 002-55
only. To direct seizure of what was well in excess of the balance
was thus ultra
vires and
improper. Further, the reference to "all relevant
documentation" seems to me to be too general and vague. Since a
search warrant encroaches upon the rights of individuals, it must be
construed with reasonable strictness in determining its validity or
otherwise. In this regard, what was said in a three-judge decision
in De Wet and
Others v Willers, N. O. and Another 1953(4) SA 124 (per Ramsbottom,
J., as he then was) at 127 B, is instructive:

"To enter premises, to
search those premises, and to remove goods there from is an
important invasion of the rights of the individual. The law empowers
police officers to infringe the rights of citizens in that way
provided that they have a legal warrant to do so. They must act
within the terms of that warrant. When a dispute arises as to what
power is conferred by the warrant, the warrant must be construed
with reasonable strictness, and ordinarily there is no reason why it
should be read otherwise than in terms in which it is expressed."

And in
Divisional
Commissioner of S. A. Police Witwatersrand Area, and Others v S. A.
Associated Newspapers Ltd and Another 1966(2) SA 503 (A. D.) 512
D, Beyers, A.C.J., remarked:

"It has long been
established that the courts will refuse to recognise as valid a
warrant the terms of which are too general."

See also
Cine Films (Pty)
Ltd and Others v Commissioner of Police and Others 1972(2) SA 254(A.
D.), per
Muller, A. J., at 268 B; and S v
Pogrund 1974(1) SA 244 SA at247E-Fand 249 B.

In the
instant case, and for the reasons given, I am satisfied that the
search warrant is too general, vague, improper and voidable. I make
the following order:

1. 
   the
   application succeeds;

   
   

2. 
   the search
   warrant is set aside;

   
   

3. 
   the
   applicant is entitled to operate his business account; and

   
   

4. 
   the first,
   second and fourth respondents are to pay the costs of this
   application jointly and severally, the one paying the other to be
   absolved.