National Director of Public Prosecutions v King (86/09) [2010] ZASCA 8; 2010 (2) SACR 146 (SCA) ; 2010 (7) BCLR 656 (SCA) ; [2010] 3 All SA 304 (SCA) (8 March 2010)

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[2010] ZASCA 8
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National Director of Public Prosecutions v King (86/09) [2010] ZASCA 8; 2010 (2) SACR 146 (SCA) ; 2010 (7) BCLR 656 (SCA) ; [2010] 3 All SA 304 (SCA); 72 SATC 195 (8 March 2010)

THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 86/09
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS Appellant
and
DAVID
CUNNINGHAM KING Respondent
Neutral
citation:
National Director of Public
Prosecutions v King
(86/09)
[2010] ZASCA 8
(8
March 2010)
Coram:
HARMS
DP, NUGENT, MLAMBO and MALAN JJA, and MAJIEDT AJA
Heard:
15
FEBRUARY 2010
Delivered:
8
MARCH 2010
Corrected:
Summary:
Criminal
procedure – right to a fair trial – right to a motivated index of
police docket – litigation privilege
___________________________________________________________________
ORDER
___________________________________________________________________
On
appeal from:
North Gauteng High Court
(Pretoria) (Bosielo J sitting as court of first instance).
1 The appeal is upheld.
2
The order of the court below is substituted with an order dismissing
the application.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
HARMS
DP (NUGENT, MLAMBO and MALAN JJA, and MAJIEDT AJA concurring)
INTRODUCTION
[1] Police dockets, forming a prosecutor’s brief,
consist normally of three sections. Section A contains statements of
witnesses,
expert reports and documentary evidence. Section B
contains internal reports and memoranda, and section C the
investigation diary.
1
In our law, following English precedent, the general rule is that one
is not entitled to see his adversary’s brief.
2
This is referred to as litigation privilege, something different from
attorney and client privilege.
3
However, as the Constitutional Court has held in
Shabalala,
a ‘blanket’ docket privilege in criminal
cases conflicts with the fair trial guarantee contained in the Bill
of Rights.
4
Accordingly, litigation privilege no longer applies to documents in
the police docket that are incriminating, exculpatory or prima
facie
likely to be helpful to the defence.
5
This means that an accused is entitled to the content in the docket
‘relevant’ for the exercise or protection of that right.
The
entitlement is not restricted to statements of witnesses or exhibits
but extends to all documents that might be ‘important
for an
accused to properly ‘adduce and challenge evidence’ to ensure a
fair trial’.
6
[2] The blanket privilege has not been replaced by a
blanket right to every bit of information in the hands of the
prosecution. Litigation
privilege does still exist, also in criminal
cases, albeit in an attenuated form as a result of these
limitations.
7
Litigation privilege is in essence concerned with what is sometimes
called work product
8
and consists of documents that are by their very nature irrelevant
because they do not comprise evidence or information relevant
to the
prosecution or defence.
[3] This much is hardly contentious. What is in
contention in this appeal is whether an accused is entitled as of
right to a full
description of each and every document to which he is
denied access – all being documents falling in parts B and C of the
docket
– with a statement of the precise basis upon which access is
denied to any document in order to have a fair trial. In other words,
is the accused entitled to a ‘motivated index’ to satisfy him in
advance that the trial will be fair? The court below held in
the
affirmative and hence this appeal by the National Director of Public
Prosecutions (the NDPP).
[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.
9
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 fair trial guarantee therein and embraces a concept
of substantive fairness that is not to be equated with what
might
have passed muster in the past.
10
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.
11
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.
12
Irregularities do not lead necessarily to a failure of justice.
13
[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.
14
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.
15
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.
16
The fair trial right does not mean a predilection for technical
niceties and ingenious legal stratagems,
17
or to encourage preliminary litigation
18
– 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.’
19
One can add the tendency of such accused, instead of confronting the
charge, of attacking the prosecution.
[6] The respondent, Mr DC King, has been indicted on 322
counts including fraud, tax evasion and evasion of the Exchange
Control Regulations,
as well as money-laundering and racketeering.
The counts relate inter alia to a failure to submit tax returns,
fraudulent misrepresentations
in his tax returns, and devising and
implementing an allegedly fraudulent scheme to ‘externalize’ his
assets to evade income
tax and obligations under the regulations,
involving amounts in excess of R1 billion. The main complainant, as
one could expect,
is the SA Revenue Services (SARS). It apparently
has a claim of some R3 billion against King flowing from some of the
allegations.
[7] The case has a long history. King was arrested in
2002 and the original indictment was served during April 2005. (The
last indictment
ran to some 800 pages.) The trial was initially set
down for 26 July 2005. By then the case was already and has since
been conducted
by means of correspondence, press interviews, some
case management sessions before a judge allocated for that purpose,
and interlocutory
proceedings in civil courts. One of the issues that
had arisen in the correspondence related to King’s right to be
provided with
a copy of the docket free of charge. The NDPP refused
on the basis that an accused person is only entitled to free copies
if that
person cannot pay for copies. King was not ready to proceed
with the trial and on the preceding day he launched an application
for
a declaratory order declaring his entitlement to a copy of the
docket free of charge and a review under Uniform r 53 of the decision
by the NDPP refusing him a copy free of charge.
[8] It is common cause that King is a very wealthy man
and it cannot be gainsaid that the application was cynical and
without any
merit and was brought purely with a view to delay the
criminal proceedings. More need not be said about this issue because
in the
event the court below refused this relief on 11 December 2008.
There is no cross-appeal.
THE APPLICATION FOR A MOTIVATED INDEX
[9] On 10 October 2005 King filed an amended notice of
motion, adding another prayer. Bosielo J, in the court below, granted
an order
on 11 December 2008 in its terms despite the fact that King
had not asked at the hearing – during October 2007 – for an order
in those terms because it was common cause that he was not entitled
to the shotgun relief sought. King abandoned much of the order
about
the time the application for leave to appeal was to be heard in the
court below. What remained after redaction was an order
directing the
NDPP to furnish King with (a) a full description of each document in
part B and C of the docket; (b) a full description
of each and every
document to which King is denied access; and (c) a statement of the
precise basis upon which access is denied to
any document. This is
the ‘motivated index’ this case is about. Bosielo J granted leave
to appeal to this Court. However, King
argued that the matter was not
appealable, a matter to which I shall revert in due course.
[10] The docket in this case is not a typical police
docket. This is due to the nature and complexity of the case. Private
practitioners
were briefed by the State to conduct the investigation
and prosecution, a practice common in countries such as the United
Kingdom
and, simply relying on institutional memory, known in this
country since at least 1950.
20
There are many documents. Part A, at March 2006, consisted of about
200 000 pages and contained all the evidence and documents relevant
to the case. King has always had access to them and he now has copies
to the extent that he did not have them before. Much of part
B
consists of electronic records, for example, it consisted at the time
of – apart from anything else – about 21 000 emails held
by the
different persons and entities that had been involved in the case. In
addition, the NDPP’s attorneys held about 270 lever
arch files of
documents not included in part A. The NDPP has calculated that
providing a motivated list of these documents would
cost in excess of
R1,5m.
[11] The documents in part B and C of the docket fall in
these categories:
investigators’ files, including their investigation
diary, notes taken during witness interviews, draft witness
statements, communications
with witnesses, certain tape recordings
of meetings with witnesses, communications and notes of discussions
with expert witnesses;
communications between the National Prosecuting
Authority (the NPA), its attorneys and counsel, and complainants;
communications between the NPA and other
representatives of the Department of Justice, attorneys and counsel
appointed by the NPA,
and the investigators, including minutes or
notes of meetings, requests and motivations to the NPA for the issue
of summonses to
witnesses, and progress reports;
communications between the NPA and other Departments of
State such as the Department of Trade and Industry;
communications within the NPA, between the NPA and
outside prosecutors, including attorneys and counsel, and
communications between
attorneys and counsel briefed in the
prosecution;
communications between the prosecutors and
complainants, including their attorneys;
communications between investigators and complainants;
communications between the NPA, its counsel and
attorneys, and overseas authorities and solicitors;
internal NPA memoranda;
internal NPA Status Reports and information contained
on the NPA’s case management system;
opinions by prosecutors, notes on legal research,
copies of judgments (reported and unreported);
notes by prosecutors, including notes of telephone
calls, notes of matters to be attended to, and planning memoranda;
minutes of meetings between the NPA, prosecutors,
investigators and complainants.
THE EVIDENCE
The founding affidavit
[12] King’s attorney in the supplementary founding
affidavit (where the issue of the motivated index arose for the first
time) said
that ‘it is clear that [King] is entitled to have access
to all the documents in possession of the State, which are relevant
to
the charges against him and which are not privileged.’ He then
quoted a number of provisions of the Constitution, two of which
were
relied on during argument, namely s 35 (the right to a fair trial)
and s 32 (the right to access of information) and proceeded
to recite
the terms of the relief sought in relation to the motivated index. He
in particular did not allege that he had reason to
believe that there
were any ‘relevant’ documents in part B and C that were not
privileged or falling within the
Shabalala
principle.
The answering affidavit
[13] The then NDPP, Mr Pikoli, in his answering
affidavit, after having set out the information about the categories
of documents
in the two parts, stated that King did not require
access to them for a fair trial. He said that the reasons for not
disclosing varied
from document to document but included the
following:
Many of the documents were irrelevant to the issues in
the criminal case.
None of the documents was exculpatory or prima facie
likely to be helpful to the defence in the trial.
All or most of the documents were privileged from
disclosure on a variety of grounds.
The public interest in preserving confidentiality of
some documents outweighed any interest King might have had in their
disclosure.
The replying affidavit
[14] King, in reply, merely denied ‘the bald claim of
privilege’. Importantly, he did not traverse the allegation
relating to
relevance, or that none of the documents was exculpatory
or prima facie likely to be helpful to the defence or the public
interest
claim. On ordinary principles this means that the
allegations in the answering affidavit are deemed to have been
admitted or, at
least, that he is bound by the answer. Also
significant is the fact that King did not attack Pikoli’s ability
to give this evidence;
he did not say that it was hearsay; and he did
not object thereto. Whether it was hearsay and whether Pikoli was
able to make the
allegations was, accordingly, never raised as an
issue. I mention this because King’s argument before us that we may
not or should
not (I am not clear what the submission was) have
regard to Pikoli’s evidence is out of order. Had it been raised at
the appropriate
time the NDPP could have dealt with it.
[15] Pikoli, while denying that King was entitled to the
relief sought, added that the NDPP was in the process of compiling an
index
of these documents. This, according to King in his replying
affidavit, was tantamount to a concession that he was entitled to a
copy,
a rather disingenuous allegation.
The supplementary answer
[16] A long delay followed while the parties were busy
with, primarily, extra-curial shadow boxing. The application was
eventually
set down for hearing on 29 October 2007. However, a few
days before the hearing the NDPP filed a supplementary answering
affidavit.
The purpose of the new evidence – now sworn to by the
acting NDPP, Mr Mpshe – was ‘to further elucidate why [King] is
not entitled
to these particulars and to explain . . . the enormous
practical difficulties . . . and the costs that would be incurred’
if the
order were to be granted. He stated that the process of
preparing an index had been stopped because it was found to be an
extremely
arduous task and would serve no practical purpose. He
reiterated that the documents fell within the categories set out
earlier in
this judgment. And he dealt with the cost involved. He
also analysed the wider implications of the order to the criminal
justice
system to the extent that it would create a development or
extension of the
Shabalala
principles. It is not necessary to detail the facts because it cannot
be gainsaid that the application of such a general principle
would
create another stumbling-block for courts to get to grips with cases
and grind an already overburdened criminal justice system
to a halt.
[17] It is necessary to quote a paragraph in the Mpshe
affidavit in full because it forms the factual foundation for King’s
argument.
It reads as follows:
‘
Insofar as the demand for a
description of “each of the documents in parts B and C of the
docket” is concerned, the categories
of documents in parts B and C
(ie, those documents forming part of the docket which have not been
provided to King under section
A) have been described in the
answering affidavit [referring to the Pikoli affidavit]. As appears
from that affidavit these documents
constitute internal working
documents, memoranda, reports, opinions and correspondence. They have
not been disclosed because King
does not require access to them for a
fair trial. This is because they are either not relevant to the
issues in the criminal trial
or do not fall within the ambit of the
information envisaged as being disclosable by the Constitutional
Court in
Shabalala
,
or even if relevant
and falling within such parameters, are privileged from disclosure on
a variety of grounds. The public interest
in preserving their
confidentiality and the interests of justice outweigh any interest
that King might have in their disclosure.
There accordingly is no
obligation to disclose them.
’
[18] King’s argument is that Mpshe hereby conceded
that there are relevant documents within part B and C of the docket.
The submission
ignores not only the context of the statement (being a
restatement of what Pikoli had said) but also the actual wording of
the affidavit
ignoring content, context and intent.
The supplementary reply
[19] King filed a subsequent affidavit, said to be a
supplementary replying affidavit, but it was in fact much more. To
the extent
that it amounted to a supplementary replying affidavit he
denied the quoted paragraph from the Mpshe affidavit. Importantly, he
did
not allege that it contained any admission and, as in the case of
the Pikoli affidavit, he did not deny Mpshe’s ability to give
the
evidence or alleged that it was hearsay. My earlier comments about
the belated hearsay objection apply. He also denied that he
had to
make out a prima facie case for the relief sought.
[20] King dealt in detail with the issue of delay,
something not relevant to this appeal. The new matter, which had no
real antecedent,
concerned first the role of SARS in the prosecution
and, second, the fruits of certain overseas investigations conducted
by the prosecution.
The SARS issue
[21] As far as the SARS issue is concerned, King made
the following allegations. He said that the charges against him had
arisen out
of an investigation conducted by SARS into his tax
affairs. SARS was the primary complainant and SARS was pursuing
parallel civil
litigation against him where the same or similar
issues arose. This was suspended pending the finalization of the
criminal case.
SARS was the sole funder of the prosecution against
him and the private practitioners employed by the NDPP as prosecutors
have been
paid by SARS. He said that SARS took over the financial
responsibility of the prosecution because it was not satisfied with
the manner
in which the NPA had been conducting it. He submitted that
SARS viewed the prosecution as a means of extracting payment of the
alleged
tax debt. The conduct of especially two of the prosecutors,
being funded by SARS, gave him cause to suspect that they lack the
independence
constitutionally demanded of prosecutors. It is not
necessary to detail the litany of complaints any further and I turn
to his submissions
based on these allegations.
[22] He submitted that he was ‘entitled to all
documents in the possession of the NPA that provide evidence’ of
contact between
the prosecutors and SARS in order to present in full
his case for the removal from the prosecution of the private
attorneys and counsel
who, he believes, lacked the independence that
he is entitled to expect under the Constitution. He then submitted
that it must be
self-evident that there are many such documents
within five of the 13 categories of documents mentioned earlier. In
addition, he
said that he was entitled to ‘copies’ of all
accounts rendered to the NPA by these practitioners to identify the
fees paid and
the persons within SARS with whom they had any contact.
The ‘foreign’ evidence issue
[23] Less need be said about the second issue, namely
the evidence obtained by the NDPP overseas. King said that he had
‘reason
to suspect that at least some of the evidence obtained by
means of the overseas investigations [during 2002 and 2003] may have
been
procured unlawfully’ and that he intended to object to the
admission of that evidence. To do so he required ‘access’ (he did
not say a motivated index) to the communications between the NPA, its
counsel and attorneys and the overseas authorities. It is common
cause that this evidence was disclosed as a separate section under
part A and the NDPP has stated emphatically that it does not intend
to rely on it. This is and was always a non-issue because if the
evidence is not tendered King will have nothing to object against.
The ‘new’ evidence on appeal
[24] King filed an affidavit in this Court on 10
February 2010, two court days before the hearing of the appeal. The
explanation proffered
was that the documents attached to the
application to lead further evidence did not exist when the case was
heard in the court below.
The documents were supposed to show that
the NDPP was able ‘to furnish [King] with those parts of the docket
or an index to the
docket which [King] has sought.’ I should
immediately say that there is nothing in the latter-day
correspondence to justify the
second part of the quoted statement,
namely that relating to the ability to produce an index. And as
appears from this judgment,
it does not concern itself with the
ability or otherwise of the prosecution to supply a motivated index.
[25] One of the documents relied on by King was a
document that King had filed (probably during November 2009) in one
of the side
shows between the parties in the South Gauteng High
Court. It purports to be a draft special plea in terms of
s 106(1)(h)
of the
Criminal Procedure Act 51 of 1977
, which deals with the
prosecutor’s ‘title to prosecute’. The essence of the special
plea is (more or less) that because of
the facts recited above in
respect of the SARS issue, King has a reasonable apprehension that
SARS has interfered improperly with
the obligation of the NPA to
approach all matters concerning his prosecution in an independent
manner and that its continued involvement
in his prosecution is
unconstitutional and invalid. (Whether this has anything to do with
the prosecutor’s ‘title’ is a matter
to be left for another
court.) In a letter of 8 December 2009 King’s attorneys then asked
the NDPP for documents relevant to that
issue and gave a specified
list. The NDPP, after some intervening correspondence, replied on 2
February 2010 that it would in the
light of the proposed special plea
review all documents in the docket not yet disclosed to determine
whether any of them were relevant
to the proposed special plea, prima
facie helpful to King in asserting this defence, and not privileged.
(It has not been suggested
in argument or otherwise that the NDPP’s
undertaking is not bona fide.) King was also asked to apprise the
NDPP of any other special
plea he intended to raise to enable it to
consider disclosure in relation thereto. He has not as yet responded.
[26] For the sake of completion it is necessary to make
some reference to the NDPP’s affidavit in answer. The deponent, Mr
Carter,
pointed out with reference to documents in the appeal record
that King had asked on a number of occasions during 2005 for
information
about the role of SARS in the prosecution. The last
request was during October 2005. Carter said that all the information
requested
was given. King, in vague terms, then threatened a special
defence since April 2006 but when requested to particularize it he
refused
to do so, alleging that it was his prerogative to raise the
issue when it suited him. Carter also dealt with the list in the
letter
of 8 December 2009. He pointed out that the documents in the
first seven categories had either been supplied or relate to common
cause facts. The remaining requests relate to the fee lists of
counsel and attorneys, the relevance of which appears to me to be
fanciful.
[27] The new matter, whether in the supplementary
replying affidavit or the papers filed in this Court relating to the
SARS and the
foreign evidence had nothing to do with the relief
sought or the order granted. King’s new case, which he used to
bolster his motivated
index case, was that he is entitled to ‘access’
of these documents under the ordinary
Shabalala
principles. He may or he may not be but that
is not what the order sought or granted related to, which was a
motivated index of ‘all’
documents in parts B and C of the
docket. At the time the application was launched the NDPP had no
reason to believe that these issues
were issues in the case. As
mentioned, King had refused to divulge his special defences or pleas.
KING’S SUBMISSIONS ON FAIR TRIAL
[28] King’s case is built on the general submission
that one can assume that all the withheld documents are in some or
other way
relevant to King’s prosecution because there would be no
other explanation for their inclusion in the docket. For this
reliance
was placed on a recent Canadian case, namely
R
v McNeil.
21
Counsel took some liberties in interpreting the judgment.
[29] The accused in
McNeil
sought to obtain access to police disciplinary records and criminal
investigation files relating to the main police witness. The
court
used the occasion to reiterate the obligations of the police and
prosecution ‘to disclose the fruits of the investigation
under
R
v Stinchcombe’
22
(at para 14). That case established the prosecution’s duty ‘to
disclose all relevant information in its possession relating to
the
investigation’ and meaning ‘not only information related to those
matters the Crown intends to adduce in evidence against
the accused,
but also any information in respect of which there is a reasonable
possibility that it may assist the accused in the
exercise of the
right to make full answer and defence’ (at para 17). The court
pointed out that there are many limitations on the
duty to disclose
the fruits of the investigation (at para 19). It is in this context
that the court stated in the paragraph relied
on by King that there
are two assumptions in relation to the prosecution’s duty to
disclose the contents of its file ‘
under
Stinchcombe
’:
‘
The first is that the
material in possession of the prosecuting Crown is relevant to the
accused’s case. Otherwise the Crown would
not have obtained
possession of it . . . The second assumption is that this material
will likely comprise the case against the accused.
As a result, the
accused’s interest in obtaining disclosure of all relevant material
in the Crown’s possession for the purpose
of making full answer and
defence will, as a general rule outweigh any residual privacy
interest held by third parties in the material.
’
(Para 20.)
[30] As far as the first assumption is concerned, it
dealt with information gathered and not material created. In any
event, the second
assumption does not apply because the undisputed
evidence is that the material referred to in that assumption is in
part A of the
docket. The last sentence quoted merely restates the
Shabalala
test in
slightly different terms. It uses the word ‘relevant’ in a sense
different from that used by counsel for King. As was
said in a
Canadian case relied heavily on by King, ‘(r)elevance must be
assessed in relation both to the charge itself and to the
reasonably
possible defences’ and that the duty relates to the disclosure of
evidence.
23
To explain: a document may be relevant to the prosecution without
being relevant to the accused’s guilt or defence. For instance,
King seeks a motivated list of opinions by prosecutors, notes on
legal research, and copies of judgments (reported and unreported).
These documents are clearly relevant to the prosecution but they are
not relevant ‘for the purpose of making full answer and defence’.
In other words, as mentioned at the outset of this judgment, most of
the material covered by litigation privilege in criminal cases
would
in any event not be discoverable because the material is not germane
to the conduct of the trial, ie, is not relevant in the
sense
discussed.
[31] The argument proceeded from the assumption that the
NDPP had conceded that part B and C of the docket included documents
that
are relevant to the issues in the case and also documents that
are disclosable under
Shabalala.
Because of this, so went the argument, King has no way of considering
whether the NPA ‘is justified in withholding specific documents
at
least some of which, on the NPA’s own admission, are relevant to
the issues in the criminal trial’.
I
have already rejected the submission relating to the concession.
Further, the
Shabalala
documents
are by definition relevant and do not form a separate class of
documents. Then, as I have mentioned, it was not in dispute
before
the supplementary replying affidavit raised the SARS issue that none
of the documents was exculpatory or prima facie likely
to be helpful
to the defence in the trial. And last, the argument kept vacillating
between a
Shabalala
duty
and the duty to provide a motivated index.
[32] This is fortified by King’s concluding
submission on the right to a fair trial. The argument, as stated in
the heads, was
that it flows from
Shabalala
that King is entitled ‘to access to all relevant documents in the
docket’ and that the mere ipse dixit of the NPA is not sufficient
to justify the withholding ‘of relevant documents’ in the docket.
In this regard King relied on authorities that deal with the
trite
proposition that if documents are admittedly relevant they have to be
discovered unless the refusal to discover can be justified.
24
But, as I have stated repeatedly, this case is about the right to a
motivated index to enable King, without any prima facie facts,
to
audit part B and C of the docket. Quite clearly, King need not be
satisfied with the say-so of the prosecution but the initial
decision
remains that of the prosecution and if shown to be prima facie wrong
during the trial, a court may order more.
25
THE JUDGMENT A QUO ON FAIR TRIAL
[33] The court below, although emphasizing that the case
was not about disclosure but about a motivated index accepted that
the same
principles applied. The learned judge found the
Shabalala
test too elastic and incapable of precise
definition and he preferred to use Canadian tests that say the same –
namely that information,
whether incriminating or exculpatory must be
disclosed unless plainly irrelevant; or that information that can
‘reasonably’ be
used by the accused to advance a defence or
making a decision which may affect the conduct of the defence must be
disclosed.
[34] It will be recalled that Bosielo J ordered more
than King had asked for at the hearing. One of the abandoned orders
was an order
requiring the NDPP to provide a motivated index of part
A of the docket. It would appear that this may not have been an error
on
the part of the learned judge because on more than one occasion he
reverted to the facts concerning part A of the docket. And he
concluded his judgment on this aspect, after referring to the size of
the indictment and the number of files that the NDPP ‘relies’
on,
by saying that King could not be expected to wade through tomes and
tomes of documents without knowing what they are (at para
40). One
can only wade through documents if one has access to them. I have,
unfortunately, to reiterate that this was not King’s
complaint.
[35] The court also justified its order with reference
to the SARS and foreign evidence issues and said that King had a
substantial
interest in ‘seeing’ them and that he cannot prepare
his defence without having had ‘sight’ of them. The learned judge
in
my view misconceived the issue, not only for the preceding reasons
but also in the light of what follows. The appeal was heard five
years after the application was launched. We know after all these
years of only two categories of undisclosed documents which,
according
to King, he fairly requires for purposes of his defence.
His counsel was accordingly invited to identify any other possible
category
and he did not or could not accept the invitation. Instead,
his argument appeared to be, with reference to the rule that when the
existence of information has been identified the prosecution must
justify the non-disclosure – which has been done.
26
He was also invited to say whether he required an order for the
disclosure of the documents relating to these two issues and his
answer was in the negative. At the conclusion of his argument he
submitted that he was at least entitled to a motivated index under
oath of all undisclosed documents that fall within the
Shabalala
formulation. But, as mentioned ad nauseam,
the undisputed evidence was that there is none. Although he submitted
that he was asking
no more than what he would have been entitled to
in a civil case, he was mistaken because in civil litigation the
documents that
fall under the rubric of litigation privilege are not
listed in the discovery affidavit.
27
ACCESS TO INFORMATION
[36] King also relied on the fundamental right of access
to any information held by the state contained in
s 32(1)(a)
of the
Bill of Rights. The argument was simple: the fundamental right to
information held by the state is unlimited; the whole docket
contains
information held by the state; ergo, he is entitled to the whole
docket. It should be mentioned that the court below did
not deal with
this issue.
[37] The interim Constitution (s 23) and the
transitional arrangements in schedule 6 of the Constitution defined
the right in more
restrictive terms. The right was qualified by the
requirement that an applicant for access had to require the
information for the
protection of a right. The final Constitution (s
32(2)) in turn provided that national legislation had to be enacted
to give effect
to the right. The necessary legislation was duly
adopted: the Promotion of Access to Information Act 2 of 2000. As
with the case
of the right to administrative justice, once this Act
came into operation an applicant for access to information is obliged
to base
his case on the Act and may not, except to the extent that
the Act is unconstitutional, rely on s 32(1)
simpliciter.
In other words, s 32(1) does not provide a free-standing right to
access.
[38] In
Shabalala
(at para 34) the CC had to consider whether the right to access of
information in the interim Constitution impacted on the right
to
information that flowed from the fair trial right. The court said
that if an accused is unable to obtain access to information
under
the fair trial provision it is ‘difficult to understand’ how the
accused could obtain it under the access to information
provision.
Whether this is the case under the final Constitution need not be
decided since the answer to the question has to be sought
in the said
Act.
[39] On a formal level, the Act requires compliance with
certain formalities as a pre-condition for access (s 11). In this
regard
reference may be made to s 40, which contains a mandatory
prohibition of disclosure of documents that are privileged from
production
in legal proceedings, and s 39, which entitled the NDPP to
have refused the request on a number of relevant grounds. King did
not
follow the prescribed route. On a substantive level, s 7 provides
that the Act does not apply to a record of a public body or a private
body if—
(a) that record is requested for the purpose of
criminal or civil proceedings;
(b) so requested after the commencement of such
criminal or civil proceedings, as the case may be; and
(c) the production of or access to that record for the
purpose referred to in paragraph (a) is provided for
in
any other law
.
‘
Other law’ refers in this context to the body of
law which includes the rules relating to discovery, disclosure and
privilege. In
other words, if access to information is requested for
the purpose of criminal proceedings the right thereto has to be
sought elsewhere.
As was said in
Unitas
Hospital v Van Wyk and another,
28
in the context of civil proceedings, ‘once
court proceedings between the parties have commenced, the rules of
discovery take over’.
King’s counsel accepted the correctness of
the statement.
APPEALABILITY
[40] King opposed the grant of leave before Bosielo J on
the ground that his decision was not appealable. The issue whether
his ‘decision’
could have been appealed irrespective of the leave
granted is a preliminary question in any appeal but it is one that in
the context
of this case and in the light of my conclusion can
conveniently be discussed at this late juncture.
[41] Criminal appeals are governed by the
Criminal
Procedure Act 51 of 1977
which, in very general terms, permits
appeals against conviction and sentence only. Civil appeals, in turn,
are governed by s 20
of the Supreme Court Act 59 of 1959 and are
permitted against ‘judgments or orders’, a term that has a
technical meaning that
has evolved and is still evolving. Then there
are intermediate cases that fall under s 21(1) of the latter Act,
which gives this
Court the additional jurisdiction to hear appeals
against any ‘decision’ of a high court. Although the term
‘decision’ has
been interpreted to be equivalent to ‘judgment
or order’, this Court in
S v Western Areas
Ltd & others
29
has held that a judicial pronouncement that is not a judgment or
order – such as an interim ruling during a criminal trial –
may
be appealable if the interests of justice require it.
[42] The NDPP relied heavily on this judgment,
incorrectly in my view. Howie P was careful not to decide that the
‘interests of
justice’ test applied to civil cases – something
the present case was as an adjunct to an order for a declaratory
order and a
review application. This is not the place to reconsider
the so-called
Zweni
test in civil litigation and I instead prefer to decide the matter
with reference to that test.
30
This means that it is not necessary to consider the argument about
the interests of justice. The focussed issue is whether the ‘order’
was in substance and not in form final in effect. In other words, was
it capable of being amended by the trial court?
[43] The order in form appears to be ‘interlocutory’
and since ‘interlocutory’ orders are usually not ‘judgments or
orders’
but rulings it is easy to understand why it appears prima
facie not to be final in effect. On closer examination it is,
however,
final in substance. The criminal trial cannot begin without
compliance and, in any event, the criminal court will be bound by
that
‘decision’. King submitted that the NDPP could have
approached the court that had made the order for a variation on new
facts
– but that was a submission without substance because if one
asks what new facts are possible one seeks in vain for a sensible
answer. Had the court refused the application the position may have
been different and King may have been able to raise the matter
during
his trial. He may eventually argue that his trial was unfair because
there was reason to believe that there were undisclosed
relevant
documents. In this regard one may compare the case to the position
with exceptions: a dismissed exception is not appealable
but an
exception that has been upheld is. The reason is that in the case of
the former the matter may again be raised by way of a
plea or
argument during the trial while in the case of the latter the matter
has been laid to rest by the order upholding the exception.
[44] Mahomed CJ said in this regard in
Beinash
v Wixley
:
31
‘
There can be no doubt that
the decision of the then Witwatersrand Local Division to set aside
the impugned subpoena was a “judgment
or order” in the
ordinary
sense of the word which, if wrong, could be corrected on appeal. The
real question is whether it can be corrected forthwith and
independently
of the outcome of the main proceedings or whether the
appellant is constrained to await the outcome of the main proceedings
before
the decision can be attacked as one of the grounds of appeal -
in which event the decision of the court a quo now under discussion
would not be a “judgment or order” in the
technical
sense but a ruling.
"The question which is
generally asked . . . is whether the particular decision is
appealable. Usually what is being asked relates
to not whether the
decision is capable of being corrected by an appeal Court, but rather
to the appropriate time for doing so. In
effect the question is
whether the particular decision may be placed before a Court of
appeal in isolation, and before the proceedings
have run their full
course" (per Nugent J in
Liberty
Life Association of Africa Ltd v Niselow
(1996) 17 ILJ 673 (LAC) at 676 H).
This problem often arises when
one or other party seeks to appeal against some preliminary or
interlocutory decision, which is made
by a court before it has
arrived at a final conclusion on the merits of the dispute between
the parties. The approach of the court
in such circumstances is a
flexible approach. In the words of Harms AJA in
Zweni
v The Minister of Law and Order
1993
(1) SA 523
(A) at 531J - 532A:
"The emphasis is now rather
on whether an appeal will necessarily lead to a more expeditious and
cost-effective final determination
of the main dispute between the
parties and, as such, will decisively contribute to its final
solution."
What the court does is to have
regard to all the relevant factors impacting on this issue. It asks
whether the decision sought to
be corrected would, if decided in a
particular way, be decisive of the case as a whole or a substantial
portion of the relief claimed,
or whether such decision anticipates
an issue to be determined in the main proceedings. The objective is
to ascertain what course
would best "bring about the just and
expeditious decision of the major substantive dispute between the
parties."’
[45] The point may be illustrated
with reference to
Clipsal Australia
(Pty) Ltd v Gap Distributors (Pty) Ltd
32
where this Court held that an order suspending contempt proceedings
pending review proceedings was appealable. In that case, as in
the
present, the court intended the order to be final and not susceptible
to amendment as is apparent from the order itself and was
confirmed
by the learned judge in his judgment on leave to appeal. I do not
wish to revisit any detail of the
Clipsal
judgment – its reasoning is applicable to this case – but will
limit myself to compare Bosielo J’s order with an order for
security for costs which is a separate and ancillary issue between
the parties, collateral to and not directly affecting the main
dispute between the litigants. It is not a procedural step in attack
or defence at all but a measure of oblique relief sought by
one party
against the other on grounds foreign to the main issue. An order
determining this collateral dispute is therefore final
and
definitive. If a party has been prejudiced by the order his prejudice
is irremediable.
33
I therefore conclude that Bosielo J was correct in holding that the
matter was appealable.
34
[46] It is, however, necessary to emphasize that the
fact that an ‘interlocutory’ order is appealable does not mean
that leave
to appeal ought to be granted because if the judgment or
order sought to be appealed against does not dispose of all the
issues between
the parties the balance of convenience must, in
addition to the prospects of success, favour a piecemeal
consideration of the case
before leave is granted. The test is then
whether the appeal, if leave were given, would lead to a just
and reasonably prompt resolution of the real issue between the
parties.
35
Once leave has been granted in relation to a ‘judgment or order’
the issue of convenience cannot be visited or revisited because
it is
not a requirement for leave, only a practical consideration that a
court should take into account.
[47] I should mention, although somewhat out of context,
that King also submitted that Bosielo J had exercised a discretion
and that
this Court cannot interfere with such an exercise except on
very limited grounds. Apart from the fact that the learned judge did
not purport to exercise a discretion the position is fairly simple.
Fair trial rights are not matters for discretion; nor are discovery
and related matters. One either has a right or one does not have one.
In any event, as I have indicated, the court below did misdirect
itself in a number of material respects, not only in regard to the
facts but also because its judgment, as did King’s argument,
oscillated between the
Shabalala
right
to access and the right to a motivated index to documents that do not
fall within the
Shabalala
formulation
.
CONCLUSION
[48] I have accordingly come to the conclusion that the
decision of the court below is appealable. As to the merits of King’s
application
I am satisfied that he does not reasonably require a
motivated index of part B and C of the docket to enable him to
conduct his defence.
This means that the appeal has to succeed and
the order of the court falls to be substituted with an order
dismissing King’s application.
Issues of costs did not arise.
ORDER
1 The appeal is upheld.
2 The order of the court below is substituted with an
order dismissing the application.
______________________
L T C Harms
Deputy President
NUGENT JA
NUGENT JA (HARMS DP, MLAMBO and MALAN JJA and MAJIEDT
AJA concurring)
[49] I agree with the order that is proposed by my
colleague.
[50] There will be few orders that significantly affect
the rights of the parties concerned that will not be susceptible to
correction
by a court of appeal. In
Liberty
Life Association of Africa Ltd v Niselow
36
(in another court), which was cited with approval by this court in
Beinash v Wixley
[1997] ZASCA 32
;
1997
(3) SA 721
(SCA), I observed that when the question arises whether an
order is appealable what is most often being asked is not whether the
order is capable of being corrected, but rather whether it should be
corrected in isolation and before the proceedings have run their
full
course. I said that two competing principles come into play when
that question is asked. On the one hand justice would seem
to require
that every decision of a lower court should be capable not only of
being corrected but of being corrected forthwith and
before it has
any consequences, while on the other hand the delay and inconvenience
that might result if every decision is subject
to appeal as and when
it is made might itself defeat the attainment of justice.
[51] In this case it was said on behalf of Mr King that
the order is not appealable because it is interlocutory. Whether that
is its
proper classification does not seem to me to be material. I
pointed out in
Liberty Life
that
while the classification of the order might at one time have been
considered to be determinative of whether it is susceptible
to an
appeal the approach that has been taken by the courts in more recent
times has been increasingly flexible and pragmatic. It
has been
directed more to doing what is appropriate in the particular
circumstances than to elevating the distinction between orders
that
are appealable and those that are not to one of principle. Even the
features that were said in
Zweni v Minister of
Law and Order
37
to be characteristic, in general, of orders
that are appealable was later said by this court in
Moch
v Nedtravel (Pty) Ltd
38
not to be exhaustive nor to cast the relevant principles in stone. As
appears from the decision in
Moch
,
the fact that the order is not ‘definitive of the rights about
which the parties are contending in the main proceedings’ and
does
not ‘dispose of any relief claimed in respect thereof’, which was
one of the features that was said in
Zweni
to generally identify an appealable order, is far from decisive.
[52] The order that is under appeal in this case,
whether or not it might correctly be classified as interlocutory, is
final in its
effect. If it is indeed capable of being revisited by
the court below, as counsel for Mr King submitted that it was, it is
nonetheless
the product of a reasoned judgment, and the prospect that
it might be withdrawn by the court below upon further application can
confidently
be discounted. Needless to say, once the order has been
executed, which must necessarily occur before the trial begins, any
appeal
will be academic. Yet the order has major implications for the
prosecution. It requires a massive exercise to be undertaken by the
prosecution at considerable cost. If the order was erroneously
granted I have no doubt that this is the time for the error to be
corrected, failing which it might just as well never be corrected at
all.
[53] I agree with my colleague, for the reasons he has
given, that Mr King’s reliance upon the right of access to
information in
s 32(1)(a) of the Bill of Rights is misplaced. That
right has been given effect, as required by the Constitution, by the
enactment
of the
Promotion of Access to Information Act 2 of 2000
.
In the absence of a challenge to the adequacy of the Act to confer
the rights that are constitutionally guaranteed, Mr King has
no claim
to a residual constitutional right.
39
I confine myself to his reliance upon the right that he has under s
35(3) to be afforded a fair trial.
[54] The ambit of the duty upon the prosecution to
disclose documents to an accused person was authoritatively defined
by the Constitutional
Court in
Shabalala v
Attorney General of Transvaal.
40
We were referred to numerous decisions in other jurisdictions that
have dealt with that topic, which do not seem to me to materially
add
to or detract from what was held in
Shabalala.
Nor did I understand counsel for Mr King to
contend for any extension of the principles laid down in that case so
far as they relate
to the disclosure of documents. But the
principles of
Shabalala
,
and the cases like it, are not what is in issue in this case, because
this case is not about the disclosure of documents at all,
as counsel
for Mr King correctly took considerable trouble to remind us.
[55] The case that was advanced on behalf of Mr King in
support of the order was not that the prosecution has failed in the
duties
that are cast upon it by
Shabalala
.
As my colleague has pointed out, what was sought by Mr King was a
list of all documents in the possession of the prosecution,
together
with an explanation in respect of each document for why it has not
been disclosed. That is a most novel order and counsel
for Mr King
could refer us to no court in the English speaking world in which a
like order has been granted. Nor am I aware of any
case in which
such an order has even been sought. I think that the reason for that
is plain.
[56] Whether a trial is fair is an objective fact. To
receive a fair trial Mr King is entitled to the material that is
contemplated
by
Shabalala.
If he has received all that material, and is then tried, it could
hardly be said that his trial was unfair on account of not having
had
the list that he requires. And if he is tried without having been
given that material the proceedings might be set aside if
that has
denied him a fair trial, even if he has been given the list. No
doubt he is not obliged to wait until his trial has been
concluded
before complaining, and might rightly object if he is faced with the
prospect of a trial that is destined to be unfair
because he has not
been furnished with documents to which he is entitled. But I have
pointed out that that is not what the case is
about.
[57] The only purpose that is served by the production
of the list that Mr King requires, and evidently the purpose for
which it is
required, is to enable Mr King to audit the disclosure
that has been made by the prosecution so as to determine whether the
prosecution
has fulfilled its duty. In effect Mr King wants the
prosecution to satisfy him, as a precondition to being tried, that
his trial
will be fair.
[58] I do not think that s 35(3) goes that far. In its
terms it entitles Mr King to be tried fairly in fact. It does not
entitle
him to be satisfied that the trial will be fair. If he were
able to show in advance that his trial will not be fair it might be
that a court will grant him appropriate relief. But the prosecution
is not called upon to satisfy an accused person that his trial
will
be fair as a precondition to prosecuting. If that were to be required
as a precondition for a trial it seems to me that there
might be few
criminal trials at all. Criminal proceedings are not a consensual
affair.
____________________
R W Nugent
Judge of Appeal
APPEARANCES:
APPELLANTS: W Trengove SC G Budlender SC
J Cassette
Instructed by Bowman Gilfillan Attorneys,
Pretoria, c/o Friedland Hart Inc, Pretoria
Symington & De Kok, Bloemfontein
RESPONDENTS: M Chaskalson
A Stein
Instructed by: Moss Cohen & Partners
Pretoria, c/o Jacobson & Levy Inc, Pretoria
Lovius Block, Bloemfontein
1
Shabalala &
others v Attorney-General of Transvaal & another
[1995] ZACC 12
;
1996 (1) SA 725
(CC) para 10 per Mahomed DP.
2
R v Steyn
1954 (1) SA 324
(A) 332 per Greenberg JA;
S
v Alexander & others (1)
1965
(2) SA 796
(A) 812E-G per Ogilvie Thompson JA;
S
v Mavela
1990
(1) SACR 582
(A) 590g-591a per Eksteen JA.
3
Richard
S Pike ‘The English law of legal professional privilege: a guide
for American attorneys’ (2006) 4 (1)
Loyola
University Chicago International Law Review
51;
Three
Rivers District Council and others v Governor and Company of the
Bank of England (No 5)
[2005] 4 All ER 948
;
[2004] UKHL 48
.
4
Shabalala
para 72 A2.
5
Shabalala
para
72 A3-A5.
6
Shabalala
para
57.
7
Blank v Canada
(Minister of Justice)
2006 SCC 39
;
[2006] 2 SCR 319
(SCC): the issue in this case was about when the
privilege terminated.
8
R v Card
2002 ABQB
537
(Alberta) provides a useful catalogue of case law. See also the
explanation in
S v Mavela loc cit
and
Shabalala
para
15;
Secretary of State for
Trade and Industry v Baker (No 2)
[1998] Ch 356 364.
9
S
v Zuma
[1995] ZACC 1
;
1995 (2) SA 642
(CC) para 14 per Kentridge AJ.
10
Zuma
para
16.
11
Zuma
para 17.
12
Compare
Shabalala
para 72 A6.
13
S v Shaik
[2007] ZACC 19
;
2008 (2) SA 208
(CC) para 43;
S
v Basson
2007
(3) SA 582
(CC) para 120: an allegation that an interlocutory ruling
was wrongly made which may have a material impact on the outcome of
the
case is not sufficient to demonstrate that the trial was unfair.
14
R v O’Connor
[1995] 4 SCR 411
para 193-195.
15
Shaik loc cit
.
16
Montgomery v HM
Advocate General and another
[2003] 1 AC 641
(PC) 673 per Lord Hope of Craighead quoting
Pullar
v United Kingdom
[1996] ECHR 23
;
22 EHRR 391.
17
Key v
Attorney-General, Cape Provincial Division & another
[1996] ZACC 25
;
1996 (4) SA 187
(CC) para 13.
18
Zuma v National
Director of Public Prosecutions & others
2009 (1) SA 1
(CC) paras 65-66.
19
Regina v H and
others
[2004]
UKHL 3
para 22 per Lord Bingham of Cornhill.
20
The
Milne and
Erleigh
prosecution with many reported cases beginning with
R
v Milne and Erleigh
1950 (4) SA 591
(W).
21
[2009] 1 SCR 66
para 20.
22
[1991] 3 SCR 326.
23
R
v Taillefer
2003 SCC 70
;
[2003] 3 SCR 307
paras 59-60.
See
also
Rowe v
United Kingdom
[2000] ECHR 91
;
(2000) 30 EHRR 1
para 60.
24
Crown Cork &
Seal Co Inc v Rheem SA (Pty) Ltd
1980
(3) SA 1093
(W);
Air
Canada & others v Secretary of Trade & ano
[1983] 1 All ER 910
(HL) 915.
25
Cf
Her
Majesty's Advocate v Murtagh (The High Court of Justiciary Scotland)
[2009]
UKPC 36
especially paras 35 and 40.
26
R v Chaplin
[1995] 1 SCR 727.
Why it was necessary to rely on foreign
jurisprudence for a trite proposition is unclear but that is
apparently how constitutional
cases are argued.
27
Uniform r 35(2).
28
[2006] ZASCA 34
;
2006 (4) SA 436
(SCA) para 19 per Brand JA.
29
2005 (1) SACR 441
(SCA) para 28 per Howie P.
30
Zweni v Minister
of Law and Order
1993 (1) SA 523 (A).
31
[1997] ZASCA 32
;
1997
(3) SA 721
(SCA);
[1997] 2 All SA 241
(A)
.
32
[2009] ZASCA 49
,
2009 (3) SA 292
(SCA),
[2009] 3 All SA 491
(SCA)
per Streicher JA.
33
Para 33 where Streicher JA relied on
Shepstone
& Wylie and Others v Geyser NO
1998 (3)
SA 1036
at 1042D-E which quoted, with approval, a passage in
Ecker
v Dean
1937 (SWA) 3 at 4.
34
He relied on
Metlika
Trading Ltd v Commissioner SA Revenue Services
[2004] 4 All SA 410, 2005 (3) SA 1 (SCA)
para 14.
35
Smith v
Kwanonqubela Town Council
[1999] 4 All SA 331
(SCA),
1999 4 SA 947
(SCA) para 16.
36
(1996) 17 ILJ 673 (LAC).
37
1993 (1) SA 523
(A).
38
1996 (3) SA 1
(A) 10F.
39
Compare
Minister of Health v New Clicks SA (Pty) Ltd
2006
(2) SA 311
(CC) in relation to the right under s 33 to
administrative action that is lawful, reasonable and
administratively fair.
40
[1995] ZACC 12
;
1996 (1) SA 725
(CC).