A former principal of a private school in Mpumalanga, who was convicted of being in possession of child pornography, has had his conviction and sentencing overturned by the Supreme Court of Appeal (SCA) over an invalid search warrant.
Neil Malherbe was fired in 2013 after being arrested in connection with the possession of child pornography.
He was convicted for being in possession of films, a book and images that depicted child pornography. The items were seized following a search warrant that was issued by a magistrate.
Malherbe was found guilty on three of the seven charges he faced and was sentenced on October 27, 2017, to three months in prison suspended for a period of three years.
He was also found unsuitable to work with children and his name was added to the national child protection register of sex offenders.
He lost his bid for leave to appeal in the Gauteng High Court sitting in the Mpumalanga Circuit Court.
The Lowvelder previously reported Malherbe was initially a suspect in the Project Spade investigations that originated in Canada.
The publication added the award-winning author popped up on the police’s radar when he purchased a video on the internet from a manufacturer that was under investigation. The police then seized his computer which led to images being discovered.
However, in her ruling, which was handed down on Friday, SCA Judge Thokozile Mbatha said the magistrate, who issued the search warrant, had not administered an oath to the officer who asked for it nor made any further inquiries regarding the information the police relied on.
“A search warrant issued on the basis of an unattested statement is invalid.
“The magistrate should have held that the search warrant was issued unlawfully and was invalid. On that basis none of the material seized under the warrant would have been admissible.”
Judge Mbatha added the evidence obtained through the invalid search warrant had rendered the trial unfair and should have been excluded.
“Anything done pursuant thereto was unlawful.”
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