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[2014] ZAGPJHC 190
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S v Krejcir and Others (SS26/2014) [2014] ZAGPJHC 190 (14 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
no: SS26/2014
DATE:
14 MAY 2014
In
the matter between
THE
STATE
And
RADOVAN
KREJCIR
..............................................................
Accused
1
LUPHONDO
DESAI
.................................................................
Accused
2
SAMEUL
MARUPING
.............................................................
Accused
3
JEFF
NTHONARE
...................................................................
Accused
4
SIBONISO
MIYA
.....................................................................
Accused
5
LEFU
MOFOKENG
.................................................................
Accused
6
Date
of Ruling: 14 May 2014
RULING
Lamont
J
In
this matter the six accused brought an application to be allowed to
inspect certain portions of two dockets to which they previously
were
excluded.
During
the course of argument the State accepted that it would be able to
and would in fact produce the contents of the first docket,
namely
CAS-303/6/2013, and has since the application was launched handed the
entirety of that docket to the accused for inspection.
The
current application needs a decision insofar as the documents
contained within CAS-212/10/2013 are concerned. In that docket
there
are a variety of documents including witness statements and other
documents which form part of what is known as section B
and section
C.
The
witness statements in the docket comprise the section A portion. The
section A, namely the witness documents, were discovered
and produced
for the accused.
The
State declines to produce the documents and the inscriptions on the
file which relate to section B and the section C (hereafter
“the
documents”).
For
the purpose of the present application, the accused have accepted for
the moment that the State may have the right to claim
a privilege in
respect of the documents. The State claims this privilege in its
totality without identifying the particular inscription
or the
particular document in respect of which the privilege is claimed. In
a blanket denial the State simply refuses to produce
the
documentation.
The
right of an accused to documents is dealt with in Shabalala and
Others vs Attorney General of Transvaal and Another
[1995] ZACC 12
;
1995 (2) SACR 761
(CC) at 764 G in the following terms:
“
1. The
blanket docket privilege expressed in R v Steyn was inconsistent with
the Constitution to the extent to which it protected
from disclosure
of all the documents in a police docket, in all circumstances,
regardless as to whether or not such disclosure
was justified for the
purposes of enabling the accused properly to exercise his rights to a
fair trial in terms of s 25(3).
2. The claim of the
accused for access to documents in the police docket cannot be
defeated merely on the grounds that such contents
are protected by a
blanket privilege in terms of the decision in Steyn’s case.
3. Ordinarily an
accused person should be entitled to have access to documents in the
police docket which are exculpatory (or which
are prima facie likely
to be helpful to the defence) unless, in very rare cases, the State
is able to justify the refusal of such
access on the grounds that it
is not justified for the purpose of a fair trial.
4. Ordinarily the
right to a fair trial would include access to the statements of
witnesses (whether or not the State intends to
call such witnesses)
and such contents of a police docket as are relevant in order to
enable an accused person properly to excise
the right, but the
prosecution may, in a particular case, be able to justify the denial
of such access on the grounds that it is
not justified for the
purpose of a fair trial. This would depend on the circumstances of
each case.
5. The State is
entitled to resist a claim by the accused for access to any
particular document in the police docket on the grounds
that such
access is not justified for the purposes of enabling the accused to
properly exercise his or her right to a fair trial
or on the grounds
that it has reason to believe that there is a reasonable risk that
access to the relevant document would lead
to the disclosure of the
identity of an informer or of State secrets or on the grounds that
there was a reasonable risk that such
disclosure might lead to the
intimidation of witnesses or otherwise prejudice the proper ends of
justice.
6. Even where the
State has satisfied the court that the denial of access to the
relevant documents is justified on the grounds
set out in paragraph 5
hereof, it does not follow that access to such statements, either
then or subsequently, must necessarily
be denied to the accused. The
court still retains a discretion. It should balance the degree of
risk involved in attracting the
potential prejudice consequences for
the proper ends of justice referred to in paragraph 5 (if such access
is permitted). A ruling
by the court pursuant to this paragraph shall
be an interlocutory ruling subject to further amendment, review or
recall in the
light of circumstances disclosed by the further course
of the trial.”
In
National Director of Public Prosecutions v King
2010 (2) SACR 146
held at page 151:
“
[4] It is
well to remind oneself at the outset of a number of basic principles
in approaching the matter. Constitutions call for
a generous
interpretation in order to give full effect to the fundamental rights
and freedoms that they create. The right to a
fair trial is, by
virtue of the introductory words to s 35(3) of the Bill of Rights,
broader than those rights specifically conferred
by the air trial
guarantee herein and embraces a concept of substantive fairness that
is not to be equated with what might have
passed muster in the past.
This does not mean that all existing principles of law have to be
jettisoned, nor does it mean that
one can attach to the concept of a
‘fair trial’ any meaning, whatever one wishes it to mean.
The question remains whether
the right asserted is a right that is
reasonably required for a fair trial. A generous approach is called
for. This is a question
for the trial judge and there is in general
not an a priori answer to the question whether a trial will be fair
or not. Potential
prejudice may be rectified during the course of the
trial and the court may make preliminary rulings depending on how the
case
unfolds and may revoke or amend them. Irregularities do not lead
necessarily to a failure of justice.
[5] There is no such
thing as perfect justice – a system where an accused person
should be shown every scintilla of information
that might be useful
to his defence – and discovery in criminal cases must always be
a compromise. Fairness is not a one-way
street conferring an
unlimited right on an accused to demand the most favourable possible
treatment, but also requires fairness
to the public as represented by
the State. This does not mean that the accused’s right should
be subordinated to the public’s
interest in the protection and
suppression of crime; however, the purpose of the fair trial
provision is not to make it impracticable
to conduct a prosecution.
The fair trial right does not mean a predilection for technical
niceties and ingenious legal stratagems,
or to encourage preliminary
litigation – a pervasive feature of white collar crime cases in
this country. To the contrary:
courts should within the confines of
fairness actively discourage preliminary litigation. Courts should
further be aware that persons
facing serious charges – and
especially minimum sentences – have little inclination to
co-operate in a process that
may lead to their conviction and ‘any
new procedure can offer opportunities capable of exploitation to
obstruct and delay’.
One can add the tendency of such accused,
instead of confronting the charges, of attacking the prosecution.”
It
is apparent from the foregoing that the State may well have a right
to refuse to disclose documentation. In the present matter
the State
indicated that there was a reason for it to refuse to disclose the
documents.
The
reasons included legal professional privilege, that disclosure might
result in a threat to any person whose name were referred
to in the
documents and that informers might be identified.
It
was apparent from the statements from the State that there might be
justification in the claims made by it that it is entitled
to refuse
information contained on the file and documents therein.
For
present purposes the accused persons accept that position. They
however raised an issue that they are unable without more details
concerning the documents to determine whether or not the claims made
by the State are justified.
There
is in the criminal law as far as I am aware no specific mechanism by
which discovery is made.
There
is a reference by Southwood J to the fact that an appropriate
mechanism may be to use the
Promotion of Access to Information Act 2
of 2000
. In Kerkhoff v Minister of Justice and Constitutional
Development and Others
2011 (2) SACR 109
(GNP) at p 111, Southwood J
held that:
“
Furthermore,
in asserting his right of access to the documents, the applicant had
relied on s 32 of the Constitution of the Republic
of South Africa,
1996, ignoring the provisions of the Promotion of Access to
Information Act 2 of 2000 (‘PAIA’). PAIA
had subsumed s
32 of the Constitution and now regulated the right of access to
information; parties had to assert the right via
PAIA, and not via s
32. The applicant has thus been bound to seek access to the annexure
‘A’ documents by way of PAIA;
since he had not done so,
he had failed to demonstrate a right of access to the documents
concerned, and his application must therefore
be refused”.
This
procedure is unavailable in criminal and civil proceedings if the
Rules apply to discovery. See: PFE International and Others
v
Industrial Development Corporation of South Africa Ltd
2013 (1) SA 1
(CC).
By
reason of the state of advancement of the current trial and the
manner in which it has proceeded, it is apparent that that mechanism
is not a mechanism which would be convenient for the accused to use.
Accordingly
the question is how at present the State can best be directed, in a
convenient manner with proper protection of all
the rights set out
above, to make reference to the documents and identify its claims of
privilege in such a manner that the accused
are able to assess
whether or not the State justly claims privilege.
In
the civil law the concept of discovery and the mechanism by which
discovery is made is well known. In Ferreira v Endley
1966 (3) SA 618
(E) at p 620 it was held:
“
The form of
discovery required by the Rules is one which should indicate in the
affidavit the existence of documents in respect
of which privilege is
claimed, and the grounds on which privilege is claimed must be stated
sufficiently clearly for the court,
if called upon, to decide whether
the documents are in fact privileged from production or not. The mere
claim of privilege is certainly
no reason for omitting all reference
to the document in the discovery affidavit”.
Those
words must be construed in the current situation to mean that the
State should identify sufficiently clearly for the accused
and the
court to know what the documents are, what the inscription is and why
the particular document or inscription is privilege.
I
have a wide discretion in relation to the mechanism which I use to
require production of documents and must make an appropriate
order
which protects the rights of all. I am guided by the considerations
in the case of Crown Cork and Seal Company Incorporated
and Another v
Rheem South African Propriety Limited and Others
1980 (3) SA 1093
(W).
The
object of discovery is thus admirably summed up by STEPHENSON LJ in
Church of Scientology of California v Department of Health
and Social
Security
(1979) 1 WLR 723
(CA) at 733 CE:
“
The object of
mutual discovery is to give each party before trial all documentary
material of the other party so that he can consider
its effect on his
own case and his opponent’s case and decide how to carry on his
proceedings or whether to carry them on
at all… Another object
is to enable each party to put before the court all relevant
documentary evidence, and it may be
oral evidence indicated by
documents…
“
Moreover, the
public interest demands that the truth be discovered. As was stated
by Lord DENNING MR in Riddick v Thames Board Mills
Ltd
(1977) 3 ALL
ER 677
(CA) at 687:
“
The reason
for compelling discovery of documents in this case lies in the public
interest in discovering the truth so that justice
may be done between
the parties. That public interest is to be put into the scales
against the public interest in preserving privacy
and protecting
confidential information. The balance comes down in the ordinary way
in favour of the public interest of discovering
the truth, ie in
making full disclosure.”
Our courts have
discretion in enforcing Rule 35(7). The crux of the matter is the
reasons which underlie the practice. No less in
South Africa than in
England does the conflict arise between the need to protect a man’s
property from misuse by others,
in this case the property being
confidential information, and the need to ensure that a litigant is
entitled to present his case
without unfair halters. And, although
the approach of a court ordinarily be that there is a full right of
inspection and copying,
I am of the view that our courts have a
discretion to impose appropriate limits when satisfied that there is
a real danger that
if this is not done an unlawful appropriation of
property will be made possible merely because there is litigation in
progress
and because the litigants are entitled to see documents to
which they would not otherwise have lawful access. But it is to be
stressed
that care must be taken not to place undue or unnecessary
limits on a litigant’s right to a fair trial, of which the
discovery
procedures often form an important part. I trust that by
holding as I have, I have not opened a new door to interlocutory
litigation
or to a flood of ill-founded objections on grounds of
confidentiality. Practitioners would do well to remember that the
normal
rule is full inspection.”
See
also: Democratic Alliance v Acting Director of Public Prosecutions
and Others
[2013] JOL 30675
(GNP).
The
Crown Cork case is not directly in point; however, it is indicative
of the extent of the discretion exercised by the court when
considering appropriate orders. In my view in the present case the
State may well have raised legitimate reasons why it is entitled
not
to produce the documentation and that it does in fact have a
privilege it is exercising lawfully. It must, however, be put
on
terms to make such disclosures as are necessary to enable the accused
to make a proper informed decision as to whether or not
they want to
further bring any application to direct further and better discovery
and the actual production of documents withheld
or whether they
accept that the State has correctly claimed a privilege.
I
proposed a mechanism to counsel by which this could be achieved in
respect of the production of the notation and documents contained
within the second docket, namely CAS-212/10/2013.
The
proposal which I made was that counsel would inspect the
documentation but would be under an obligation not to reveal what was
disclosed to any person until such time as further orders had been
made by this court (after argument) concerning whether or not
in fact
the documents were discoverable.
The
right of access to the documents accordingly was to be made only to
counsel and only with a view to counsel deciding whether
or not they
proposed to bring further applications in respect of particular
notations and particular documents contained within
the docket. That
is a decision which at that stage they would be able to make. The
accused themselves would be excluded from any
viewing of the
documents and inspections. Counsel would be required to keep the
contents of what they had seen to themselves.
If
such an order were made it would have the benefit of allowing the
State to withhold information fairly without publication to
persons
who might be able to abuse the information. It would also enable the
accused counsel fairly to assess their position vis-à-vis
their rights to further discovery.
I
expressly do not deal in the present matter with submissions which
were made concerning the right to the documents. This is not
an issue
to be decided now. The only issue I decide now concerns the mechanism
by which the accused become able to deal with the
justification of
the claims of privilege.
The
counsel for the State and the counsel for the accused indicated that
they would be prepared to adopt the procedure I proposed
if ordered
to do so and would consider themselves bound not to make disclosure
of the documents and notation that they had seen
if same were
disclosed to them.
The
State notwithstanding the aforegoing indicated that it was not
prepared to allow any inspections of its document in section
B and
section C unless an order was made directing it to do so.
In
my view a fair solution to the problem which allows a proper
ventilation of the issues before me would be to allow the accused
inspection on the basis to which they have agreed and to order the
State to produce the docket CAS-212/10/2013 to the counsel of
the
accused on that basis. I accordingly make the following order.
1.
The State is to provide the counsel of the accused the docket of
CAS-212/10/2013 including the entirety of its notation and the
documents contained within the B and C sections therein as well as
such documents in the A section as have not been given to the
accused.
In
addition I record that:
The counsel of the
accused undertake not to disclose the contents of any information
they discover in consequence of their perusal
of the documents and
notation contained within the said docket until further argument is
addressed and orders made in respect thereof.
Counsel
for the State : Adv. Mashiane
Counsel
for Accused 1 : Adv. A Van Den Heever
Adv.
L Morland (with permission of the Bar Council)
Counsel
for Accused 2 : Mr. Steenkamp
Counsel
for Accused 3, 4 and 6 : Adv. Gessing
Counsel
for Accused 5 : Mr. Grové