MBOMBELA – If the search warrant leading to former Penryn Preparatory principal Mr Neil Malherbe’s arrest was invalid, the case against him might be a thing of the past.
Malherbe was charged with possessing child pornography after a police sting at his White River home in 2013.
If the court rules that the warrant was invalid, any evidence gathered as a result of the search will be regarded as illegal and inadmissable in court.
When the case was heard in the Nelspruit Regional Court on Friday, the magistrate who authorised the search warrant was called to testify. Retired magistrate, Mr De Wet Oosthuizen, was cross examined by defence attorney, Mr Coert Jordaan. The latter pointed out that the warrant Oosthuizen had authorised was not legal.
He explained that Malherbe’s name did not feature on the search warrant. Another requirement that wasn’t met
was a clear description of the alleged crime.
Although the warrant and the attached affidavit stated that Malherbe was suspected of having downloaded child pornography from a Canadian website, Jordaan said that the alleged crime of possessing it had not been sufficiently described, nor had a link been established between the alleged misdemeanours and Malherbe.
Oosthuizen conceded that all the required technicalities had not been met.
He said that he still authorised the search warrant, as downloading of child pornography could possibly have been followed with possession thereof.
Jordaan said that Oosthuizen should not have come to this assumption without solid grounds provided to him under oath. “The search warrant was illegal. If evidence is obtained in terms of an illegal search, it remains illegal evidence and should not be allowed in court,” Jordaan said.
He also warned against assuming that someone is guilty, just because a docket was opened with that person’s name on. “That does not constitute grounds that an offence has been committed,” he pointed out.
The case was postponed to February 19, 2016 when a decision on the legality of the search warrant is expected.
