Savoi and Others v National Prosecuting Authority and Another (5867/2013P) [2021] ZAKZPHC 7; [2021] 2 All SA 578 (KZP); 2021 (2) SACR 278 (KZP) (29 January 2021)

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[2021] ZAKZPHC 7
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Savoi and Others v National Prosecuting Authority and Another (5867/2013P) [2021] ZAKZPHC 7; [2021] 2 All SA 578 (KZP); 2021 (2) SACR 278 (KZP) (29 January 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO. 5867/2013P
In
the matter between:
GASTON
SAVOI

FIRST APPLICANT
INTAKA
HOLDINGS (PTY) LTD

SECOND
APPLICANT
FERNANDO
PRADERI

THIRD APPLICANT
and
THE
NATIONAL PROSECUTING AUTHORITY

FIRST
RESPONDENT
THE
SOUTH AFRICAN POLICE SERVICE

SECOND RESPONDENT
ORDER
The
following order shall issue:
The
applicants’ application in terms of
s 32
of the
Superior Courts
Act 10 of 2013
, is dismissed with costs, such costs to include the
costs of two counsel where so employed.
JUDGMENT
Steyn
J (Kruger J concurring):
[1]
In
United States v Nixon
,
where the President claimed privilege against disclosure of
confidential information, Chief Justice Burger said:
‘
Whatever
their origins, these exceptions to the demand for every man’s
evidence are not lightly created nor expansively construed,
for they
are in derogation of the search for the truth.’
[1]
(Footnote omitted).
The
applicants in this interlocutory application claim that some
documents seized by the State in various operations are protected
by
legal professional privilege. This application is part of a series
[2]
of applications brought by the applicants after they launched their
permanent stay application on 27 May 2013. The applicants place

reliance on legal professional privilege to have a portion of the
permanent stay of prosecution
[3]
hearing held in camera and not in open court. It is therefore
necessary to examine the privilege and its operation in our law.
In
Thint (Pty) Ltd v
National Director of Public Prosecutions & others; Zuma v
National Director of Public Prosecutions & others,
[4]
the Constitutional Court dealt decisively with the doctrine and its
operation in our law. I shall return to the doctrine later
in this
judgment.
Background
facts
[2]
The applicants are charged with bribery, racketeering, money
laundering, fraud, and
corruption in the KwaZulu-Natal and Northern
Cape divisions of the high court. The first respondent, the National
Prosecuting Authority
(NPA), alleges that the applicants participated
in a criminal enterprise involving the supply of water purification
plants and
oxygen self-generating units to the KwaZulu-Natal and
Northern Cape Departments of Health.
[5]
[3]
The respondents oppose the interlocutory application inter alia on
the ground that
the applicants have failed to make out a special case
that warrants an order to have a portion of the permanent stay
application
heard in camera. The respondents have also raised three
points in limine:
(a)
The absence of jurisdiction of this court to hear issues that relate
to the Northern Cape
cases;
(b)
The Nkosi AJ order precludes this court from hearing the application;
and
(c)
The trial court is best suited to deal with the admissibility of
evidence and any challenge thereto.
[4]
The applicants aver that 69 documents were unlawfully seized from
them in three separate
operations and that the search and seizures of
these documents were in violation of their right to legal
professional privilege.
They contend that a mechanism is required to
view the said documents when the permanent stay application is heard
and submit that
the proposed mechanism should not infringe on the
applicants’ privilege. For this reason, they require the
State’s
representatives to sign the confidentiality undertaking
as per the proposed form “X” attached to the notice of
motion.
[6]
[5]
Mr Willem Schalk Burger van der Colff (Mr van der Colff), the
applicants’ attorney,
filed an affidavit in support of the
applicants’ application. He avers that the applicants’
case is a special case
as envisaged by s 32 of the Superior Courts
Act 10 of 2013 (the Act) since the in camera order is necessary to
protect the applicants’
rights and the integrity of the court
process. According to him, the applicants will be prejudiced since
they will have to exercise
the following choices if the order is not
granted:
‘
5.1
Either they must by (sic) deal with the privileged documents in open
court, and thereby risk disclosing
the contents of highly privileged
information to the State, dealing with the applicants’ defence
strategy and legal advice
received; or
5.2
The applicants must proceed hamstrung in the presentation of their
case for a permanent
stay of prosecution, inasmuch as they must argue
that their privilege has been breached, without referring this Court
specifically
to any privileged documents.’
[7]
[6]
Mr van der Colff avers in the founding affidavit that the NPA
previously had no issue
with giving them an undertaking. He
specifically refers to para 88 of the NPA’s answering affidavit
in the permanent stay
application, which states:
‘
The
applicants then say that, on 8 September 2009, their attorney, Mr
George van Niekerk, met with the NPA’s Hein van der
Merwe and
SAPS’ Colonel Clarens Jones and Lieutenant Colonel Kobus
Roelofse. At this meeting, it is alleged that Mr van Niekerk
advised
the other parties that some of the documents seized were privileged.
It is not alleged that he identified the privileged
documents. It is
said, however, that Mr van der Merwe indicated that a team would be
put together whose duty would be to determine
whether the material
was privileged or not. Mr van de Merwe, it is alleged, never reverted
to the applicants in this regard. Instead,
the applicants say they
were surprised to learn, a year later, that “the State”
had used the privileged material in
an affidavit deposed to by Mr
Trevor White.
’
[8]
[7]
In the next paragraph, the NPA states as follows:
‘
The
applicants’ complaint, then, is that, first, the NPA never
reverted back to them in order to identify material over which

privilege was claimed. Second, it is alleged that SAPS and the NPA
viewed the alleged privileged material. It is clear, however,
that
the applicants did not at this stage assert privilege over any
specified documents. They were apparently happy to let SAPS
and the
NPA keep the documents for over a year without, in that period,
requesting a meeting at which privileged material could
be
identified. I am advised that this is a factor to be taken into
account in assessing whether the claim of privilege was being

genuinely made.
’
[9]
[8]
The respondents aver that the 69 documents were obtained on three
different occasions.
Firstly, when a search was conducted on 27
August 2009 at the Intaka offices, thereafter when the first
applicant was arrested
on 3 November 2010, and then when the
Mazars’
[10]
s 205 subpoenas were issued on 25 January 2011.
[11]
[9]
We are mindful that we have not been called upon to adjudicate on the
permanent stay
application at this stage. This court, however,
endorses the defined conceptual basis of a permanent stay of
prosecution as highlighted
by the court in
Harksen
v Attorney-General of the Province of the Cape of Good Hope &
others
:
[12]
‘
The
relief sought by Harksen is a permanent stay of the extradition
enquiry.
This is a
radical remedy which will not be granted in the absence of
significant prejudice to the person concerned.
In
Sanderson v
Attorney-General, Eastern Cape
[1997] ZACC 18
;
1998
(2) SA 38
(CC)
(1998 (1) SACR 227
;
1997 (12) BCLR 1675)
the
Constitutional Court had to deal with the question whether a
permanent stay should be granted where there had been undue delay
in
the commencement of a criminal prosecution. At para[38] Kriegler J,
in delivering the judgment of the Court, stated that:
“
[T]he
relief the appellant seeks is radical, both philosophically and
socio-politically. Barring the prosecution before the trial begins

- and consequently without any opportunity to ascertain the real
effect of the delay on the outcome of the case - is far-reaching
.
Indeed it prevents the prosecution from presenting society's
complaint against an alleged transgressor of society's rules of
conduct. That will seldom be warranted in the absence of significant
prejudice to the accused.”
At
para[39] Kriegler J proceeded as follows:
“
A
bar is likely to be available only in a narrow range of
circumstances
, for
example, where it is established that the accused has
probably
suffered irreparable trial prejudice
as
a result of the delay.”
’
(My
emphasis).
[10]
The Constitutional Court in
Wild
& another v Hoffert NO & others
[13]
stated that a stay of prosecution cannot be granted in the absence of
trial-related prejudice or extraordinary circumstances.
[11]
In this application, we will determine:
(a)
Whether the applicants have shown that their case is a special case
that justifies a partial
hearing in camera;
(b)
Whether the applicants have placed sufficient evidential material
before this court that
supports a claim of legal professional
privilege;
(c)
Whether the Nkosi AJ order precludes the consideration of the
documents by another
court including this court;
(d)
Whether this court has jurisdiction over the Northern Cape criminal
cases and documents
related to the Northern Cape prosecutions; and
(e)
Whether there is any need for a confidential undertaking to be
concluded absent any legal
professional privilege shown by the
applicants.
Special case
[12]
The applicants rely on s 32 of the Act
[14]
to have a portion of the permanent stay application heard in camera,
and apply to this court to direct the State’s representatives

to sign a confidentiality undertaking
[15]
before they view the documents which the applicants allege are
subject to legal professional privilege.
Section
32 of the Act reads:
‘
Save
as is otherwise provided for in this Act or any other law,
all
proceedings in any Superior Court must
,
except in so far as any such court may
in
special cases
otherwise direct,
be
carried on in open court
.’
(My emphasis).
[13]
A special case in terms of the relevant dicta would be a case where
the administration of justice
would be hindered by the presence of
the public. In
Cerebos
Food Corporation Ltd v Diverse Foods SA (Pty) Ltd & another
,
[16]
Van Dijkhorst J held:
‘
In
my view the emphasis should not, on the one hand, fall on the right
of the public to know (in so far as there may be one) or,
on the
other hand, on the right of the private individual not to be
embarrassed, but on the proper administration of justice.
Should
the administration of justice be rendered impracticable or materially
hampered by the presence of the public, that would
constitute a
special case as envisaged by the statute. There is no need, and it
would be inadvisable, to define those circumstances
which could be
described as special
.
They will vary from case to case. They may occur where private rights
only are involved or where the public has an interest. The
decision
as to whether a case is special should be left to the discretion of
the presiding Judge, who will bear in mind that the
general rule that
all cases must be heard in open Court should not lightly be departed
from.
’
[17]
(My emphasis).
[14]
Post 1994, the open court principle is constitutionally
entrenched.
[18]
Presently it is necessary to weigh up the rights of all parties and
reconcile them with the values protected in the Constitution.
[19]
[15]
Whilst s 32 of the Act may very well grant protection to litigants in
certain circumstances,
it may only be granted once a party has shown
that the case is special. In fact, the dicta on this point direct
that only in special
circumstances will there be a departure from the
general rule. Whether a case is special or not will be determined by
the interests
of justice and weighing up all the competing
rights.
[20]
Open
court principle
[16]
The general rule is that justice should be administered in an open
court. This rule may be restricted
if the administration of justice
would be hampered by the presence of the public in court.
[21]
In
Shinga v The State &
another (Society of Advocates, Pietermaritzburg Bar, as Amicus
Curiae) O’Connell & others v The
State
,
[22]
Yacoob J underlined the importance of open courts as follows:
‘
Seeing
justice done in court enhances public confidence in the
criminal-justice process and assists victims, the accused and the

broader community to accept the legitimacy of that process.
Open
courtrooms foster Judicial excellence, thus rendering courts
accountable and legitimate
.
Were criminal appeals to be dealt with behind closed doors, faith in
the criminal-justice system may be lost. No democratic society
can
risk losing that faith. It is for this reason that the principle of
open justice is an important principle in a democracy.’
[23]
(My
emphasis).
[17]
In
S v Leepile &
others (4)
,
[24]
the court dealt with an application in terms of
s
153(2) of the Criminal Procedure Act 51 of 1977 (the CPA), that the
evidence of a certain witness be given in camera. The ratio
of the
case regarding open justice remains relevant today. Ackermann J in
his judgment relied on the opinion of Chief Justice Burger
in
Richmond
Newspapers Inc v Commonwealth of Virginia
where he observed at 986:
‘“
People
in an open society do not demand infallibility from their
institutions but it is
difficult
for them to accept what they are prohibited from observing
.
When a criminal trial is conducted in the open there is at least an
opportunity, both for understanding the system in general
and its
workings in a particular case.”’
[25]
(My
emphasis).
[18]
The open court principle is deeply rooted in our procedural law and
as stated above is constitutionally
entrenched. Over the years, the
principle has been jealously protected.
[26]
The
Supreme Court of Appeal (SCA) in
Cape
Town City v South African National Roads Authority & others
[27]
considered
the history of the principle and the rationale for open courts:
‘
The
idea that South African civil courts should be open to the public
goes back to 1813.
The
principle of open courtrooms is now constitutionally entrenched.
“
Publicity”, said
the philosopher Jeremy Bentham –
“
is
the very soul of justice. It is the keenest spur to exertion, and the
surest of all guards against improbity. It keeps the judge
himself,
while trying, under trial.”
T
he
foundational constitutional values of accountability, responsiveness
and openness apply to the functioning of the judiciary as
much as to
other branches of government
.
In
Independent
Newspapers
the Constitutional Court dealt with an application for access to
classified documents which formed part of an appeal record. National

security, so the minister asserted, required that the documents not
be made available to the media and the public.
The
Constitutional Court confirmed that the default position is one of
openness and disavowed an approach that proceeded from a
position of
secrecy, even in a case where the documents in question had been
lawfully classified as confidential in the interest
of national
security
.
In deciding whether to make the disputed documents publicly
available, the court expressly recognised a cluster of related
constitutional
rights and principles which captures the
“constitutional imperative of dispensing justice in the open”.
It concluded
that open justice is a crucial factor in any
consideration of a request to limit public disclosure of a court
record. Although
the issue at stake concerned only access to the
record – all the court proceedings were held in public –
the court
still emphasised the importance of openness and ordered
that, despite claims of national security, the vast majority of the
record
should be made publicly available.
’
[28]
(Original
footnotes omitted, my emphasis).
[19]
The Constitutional Court emphasised the principle of open justice in
Independent
Newspapers (Pty) Ltd v Minister for Intelligence Services:
In
Re
Masetlha
v President of the Republic of South Africa & another
[29]
and held:
‘
There
exists a cluster or, if you will, umbrella of related constitutional
rights which include, in particular, freedom of expression
and the
right to a public trial, and which may be termed
the
right to open justice
.
The constitutional imperative of dispensing justice in the open is
captured in several provisions of the Bill of Rights. First,
s
16(1)
(a)
and
(b)
provides in relevant part that everyone has the right to freedom of
expression, which includes freedom of the press and other media
as
well as freedom to receive and impart information or ideas.
Section
34 does not only protect the right of access to courts but also
commands that courts deliberate in a public hearing
.
This guarantee of openness in judicial proceedings is again found in
s 35(3)
(c)
which entitles every accused person to a public trial before an
ordinary court.
’
[30]
(Original
footnotes omitted, my emphasis).
[20]
Most recently, in
Centre
for Child Law & others v Media 24 Ltd & others
,
[31]
the SCA
confirmed
the general principle that proceedings be conducted in public.
[32]
Legal
professional privilege
[21]
Returning to the doctrine, in examining legal professional privilege
as a right, it is necessary
to look at English law as the historical
source of our law of evidence. Our rules of evidence as recognised by
the scholars Schwikkard
and Van der Merwe,
[33]
‘are found in local statutes and, where these are silent on a
specific topic or issue, the English law of evidence
which was
in force in South Africa on 30 May 1961 serves as our common law’.
All rules of evidence however must comply with
the Constitution,
[34]
which remains the supreme law. The common law rule as developed must
be read with s 201 of the CPA that reads:
‘
No
legal practitioner qualified to practise in any court, whether within
the Republic or elsewhere, shall be competent, without
the consent of
the person concerned, to give evidence at criminal proceedings
against any person by whom he is professionally employed
or consulted
as to any fact, matter or thing with regard to which such
practitioner would not on the thirtieth day of May, 1961,
by reason
of such employment or consultation, have been competent to give
evidence without such consent: Provided that such legal
practitioner
shall be competent and compellable to give evidence as to any fact,
matter or thing which relates to or is connected
with the commission
of any offence with which the person by whom such legal practitioner
is professionally employed or consulted,
is charged, if such fact,
matter or thing came to the knowledge of such legal practitioner
before he was professionally employed
or consulted with reference to
the defence of the person concerned
.
’
[22]
For purposes of this judgment, it is necessary to focus on what legal
professional privilege
means.
[35]
Langa CJ in
Thint
above
defined privilege in a succinct manner:
‘
The
right to legal professional privilege is a general rule of our common
law which states that communications between a legal advisor
and his
or her client are protected from disclosure, provided that certain
requirements are met.’
[36]
(Original footnote omitted).
[23]
For communications between a legal adviser and his or her client to
qualify as privileged communications,
the following requirements
[37]
have to be met:
(a)
The legal adviser had to act in a professional capacity at the time;
(b)
The legal adviser must have consulted in confidence;
(c)
The communications had to be made for the purpose of obtaining legal
advice; and
(d)
The advice ought not to have been for the facilitation of a crime or
fraud (the crime –
fraud exception).
[38]
[24]
In
S v Safatsa &
others
,
[39]
Botha JA recognised that legal professional privilege is a
fundamental right and referred to Euroshipping Corporation of
Monrovia
v Minister of Agricultural Economics and Marketing &
others
[40]
where the court emphasised:
‘
that
inroads should not be made into the right of a client to consult
freely with his legal adviser, without fear that his confidential

communications to the latter will not be kept secret.’
[41]
[25]
It remains the duty of this court to determine whether legal
professional privilege has been
established. The SCA fortified this
view in
Bogoshi v Van
Vuuren NO & others; Bogoshi & another v Director, Office for
Serious Economic Offences, & others
[42]
where it was held:
‘
It
is, of course, the task of the Court vigilantly to safeguard legal
professional privilege. The right of governmental authorities
to
enter upon an attorney's office and there to seize client's documents
must be critically examined. At the same time, however,
“(i)t
is important...that the protection which privilege affords should be
applied strictly in accordance with the conditions
necessary for the
establishment of privilege”
(per
Friedman J in
Euroshipping
Corporation of Monrovia v Minister of Agricultural Economics and
Marketing and Others
1979
(1) SA 637
(C) at 643H). But this is not always easy. It has been
said that cases arise where a mechanical application of the rules of
privilege
is not possible (see Professor Paizes ‘Towards a
Broader Balancing of Interests: Exploring the Theoretical Foundations
of
the Legal Professional Privilege’
(1989) 106
SALJ
109
at 135).
’
[43]
(My emphasis).
[26]
Not every breach of privilege will result in an unfair trial. It is
trite that the unjustified
infringement of the right will depend on
the nature of the breach and the circumstances under which it was
breached.
[44]
Applicants’
annexure K
[27]
The applicants rely on annexure K as the factual basis for their
contention that the communications
are privileged. It is necessary to
examine the communications contained in annexure K, since the
respondents oppose the claim of
the documents being privileged. The
respondents, in their opposition, contend that the information in
annexure K is not specifically
identified and that it is generic and
general in terms. Simply put, it lacks detail regarding the privilege
claimed.
[45]
Mr
Marcus SC
,
for the applicants, during the oral submissions, stated that the
description of the documents are brief so as not to waive the

privilege that exists. In my view, i
f
annexure K provides the factual basis of the legal professional
privilege claimed, then this court should be able to establish
from
the information provided that the communications are privileged.
[28]
For purposes of the examination of annexure K, it is necessary to
quote it in full:
‘
INTAKA
INDEX
TO PRIVILEGED DOCUMENTS
Item
Date
Description
1
Undated
Contemporaneous
handwritten consultation notes prepared by the Applicants' legal
advisor In respect of a consultation with
the DSO.
2
28 November 2006
Contemporaneous
handwritten consultation notes prepared by the Applicants' legal
advisor during consultation with the Applicants.
3
04 December 2006
Communication
between members of the Applicants' legal team reporting on the
progress of the matter, and recording advice
to client and
strategy in respect of the future conduct of the matter in light
of anticipated litigation/criminal investigation.
4
04 December 2006
Communication
between the Applicants and a member of the Applicants' legal team
reporting on the progress of the matter, and
recording advice to
client, and strategy in respect of the future conduct of the
matter in light of anticipated litigation/criminal
investigation.
5
06 December 2006
Contemporaneous
handwritten consultation notes prepared by the Applicants' legal
advisor during consultation with the Applicants.
6
12 December 2006
Memorandum
prepared by the Applicants' legal advisor reporting on the
progress of the matter, and recording instructions provided
by
client and strategy in respect of the future conduct of the matter
in light of pending litigation/criminal investigations.
7
15 December 2006
Contemporaneous
handwritten consultation notes prepared by the Applicants' legal
advisor during consultation with the Applicants.
8
19 February 2007
Contemporaneous
handwritten consultation notes prepared by the Applicants' legal
advisor during consultation with the Applicants.
9
28 February 2007
Contemporaneous
handwritten consultation notes prepared by the Applicants' legal
advisor during consultation with the Applicants.
10
11 April 2007
Invoice which
provides detail of actions taken by the Applicants' legal advisors
in furtherance of the matter.
11
18 April 2007
Invoice which
provides detail of actions taken by the Applicants' legal advisors
in furtherance of the matter.
12
03 July 2007
Handwritten file
notes prepared by the Applicants' legal advisor
13
08 July 2007
Communication
between members of the Applicants’ legal team on the
reporting on the progress of the matter, and recording
advice to
client and strategy in respect of the future conduct of the matter
in light of pending litigation/criminal investigations.
14
19 July 2007
Handwritten file
notes prepared by the Applicants' legal advisor
15
22 February 2008
Contemporaneous
handwritten consultation notes prepared by the Applicants' legal
advisor during consultation with the Applicants.
16
31 March 2008
Contemporaneous
handwritten consultation notes prepared by the Applicants’
legal advisor during consultation with the
Applicants.
17
11 May 2008
Memorandum (with
tracked changes) prepared by members of the Applicants' legal team
recording instructions provided by client,
advice to client, and
strategy in respect of the future conduct of the matter in light
of pending litigation/criminal investigations.
18
11 May 2008
Memorandum (with
tracked changes) prepared by members of the Applicants' legal team
recording instructions provided by client,
advice to client, and
strategy in respect of the future conduct of the matter in light
of pending litigation/criminal investigations.
19
12 May 2008
Communication
between members of the Applicants' legal team recording
instructions provided by client, advice to client, and
strategy in
respect of the future conduct of the matter in light of pending
litigation/criminal investigations.
20
16 May 2008
Communication
between the Applicants and their legal advisor recording
instructions provided by client and advice to client
in light of
pending litigation/criminal investigations.
21
05 June 2008
Communication
between the Applicants and their legal advisor reporting on the
progress of the matter, and recording advice
to client and
strategy in respect of the future conduct of the matter in light
of pending litigation/criminal investigations.
22
05 June 2008
Communication
between members of the Applicants' legal team reporting on the
progress of the matter, advice to client and
strategy in respect
of the future conduct of the matter in light of pending
litigation/criminal investigations.
23
09 June 2008
Communication
between the Applicants and their legal advisor reporting on the
progress of the matter, and recording advice
to client and
strategy in respect of the future conduct of the matter in light
of pending litigation/criminal investigations.
24
17 June 2008
Communication
between the Applicants and their legal advisor reporting on the
progress of the matter.
25
17 June 2008
Communication
between the Applicants and their legal advisor reporting on the
progress of the matter.
26
18 June 2008
Communication
between the Applicants and their legal advisor reporting on the
progress of the matter, and recording instructions
provided and
advice sought by the Applicants in light of pending
litigation/criminal investigations.
27
18 June 2008
Communication
between the Applicants and their legal advisor recording
instructions provided and advice sought by the Applicants
in fight
of pending litigation/criminal investigations.
28
18 June 2008
Communication
between the Applicants and their legal advisor recording
instructions provided and advice sought by the Applicants
in light
of pending litigation/criminal investigations.
29
18 June 2008
Communication
between the Applicants and their legal advisor recording
instructions provided and advice sought by the Applicants
in light
of pending litigation/criminal investigations.
30
18 June 2008
Communication
between the Applicants and their legal advisor recording
instructions provided and advice sought by the Applicants
in light
of pending litigation/criminal investigations.
31
01 July 2008
Communication
between the Applicants and their legal advisor (including a draft
affidavit) recording instructions given and
advice sought by the
Applicants in light of pending litigation/criminal investigations.
32
01 July 2008
Communication
between members of the Applicants' legal team recording advice to
client and strategy in respect of the future
conduct of the matter
in light of pending litigation/criminal investigations.
33
03 July 2008
Communication
between the Applicants and their legal advisor (including a draft
affidavit) recording instructions provided
and advice sought by
the Applicants in light of pending litigation/criminal
investigations.
34
04 July 2008
Communication
between the Applicants and their legal advisor (including a draft
affidavit) recording advice to client in light
of pending
litigation/criminal investigations.
35
09 July 2008
Communication
between the Applicants and their legal advisor (including a draft
affidavit) recording advice to client in light
of pending
litigation/criminal Investigations.
36
15 August 2008
Communication
between the Applicants and their legal advisor reporting on the
progress of the matter, and recording advice
to client and
strategy in respect of the future conduct of the matter in light
of pending litigation/criminal investigations.
37
15 August 2008
Communication
between the Applicants and their legal advisor recording
instructions given and advice sought by the Applicants
in light of
pending litigation/criminal investigations.
38
15 August 2008
Communication
between the Applicants and their legal advisor (including a draft
affidavit) reporting on the progress of the
matter, and recording
advice to client and strategy in respect of the future conduct of
the matter in light of pending litigation/criminal
investigations.
39
06 March 2009
Communication
between the Applicants and their legal advisor recording advice to
client in light of pending litigation/criminal
investigations.
40
06 March 2009
Communication
between the Applicants and their legal advisors (including draft
letters) reporting on the progress of the matter,
and recording
advice to client and strategy in respect of the future conduct of
the matter in light of pending litigation/criminal
investigations.
41
11 March 2009
Communication
between the Applicants and their legal advisors recording
instructions provided and advice sought by client,
advice to
client, and strategy in respect of the future conduct of the
matter.
41A
11 March 2009
Communication
between the Applicants and their legal advisors recording
instructions provided and advice sought by client,
advice to
client, and strategy in respect of the future conduct of the
matter.
42
07 April 2009
Invoice which
provides detail of actions taken by the Applicants' legal advisors
in furtherance of the matter.
43
04 May 2009
Communication
between the Applicants and their legal advisors reporting on the
progress of the matter.
44
05 May 2009
Communication
between the Applicants and their legal advisors reporting on the
progress of the matter, and recording advice
to client and
strategy in respect of the future conduct of the matter in tight
of pending litigation/criminal investigation.
45
17 June 2009
Communication
between the Applicants and their legal advisors reporting on the
progress of the matter, and recording instructions
provided and
advice sought by client and strategy in respect of the future
conduct of the matter in light of pending litigation/criminal

investigation.
45A
18 June 2009
Communication
between the Applicants and their legal advisors recording
instructions provided and advice sought by client
in light of the
pending litigation/criminal investigation.
46
10 July 2009
Communication
between the Applicants and their legal advisors reporting on the
progress of the matter, and recording strategy
in respect of the
future conduct of the matter in light of pending
litigation/criminal investigation.
47
16 July 2009
Communication
between the Applicants and their legal advisors reporting on the
progress of the matter, and recording instructions
provided and
advice sought by client, advice to client, and strategy in respect
of the future conduct of the matter in light
of pending
litigation/criminal investigation.
48
21 July 2009
Communication
between the Applicants and their legal advisors reporting on the
progress of the matter, and recording instructions,
provided and
advice sought by client, and strategy in respect of the future
conduct of the matter In light of pending litigation/criminal

investigation.
49
26 August 2009
Communication
between the Applicants and their legal advisors reporting on the
progress of the matter, and recording instructions
provided and
advice sought by client, advice to client, and strategy in respect
of the future conduct of the matter in light
of pending
litigation/criminal investigation.
50
30 November 2009
Communication
between the Applicants and their legal advisor reporting on the
progress of the matter and recording advice
to client.
51
08 July 2010
Communication
between members of the Applicants' legal team reporting on the
progress of the matter.
52
13 October 2010
Communication
between the Applicants and their legal advisors reporting on the
progress of the matter, and recording advice
to client, strategy
in respect of the future conduct of the matter in light of pending
litigation/criminal investigation,
and representations to be made
in the Applicants' defence.
53
14 October 2010
Communication
between the Applicants and their legal advisors reporting on the
progress of the matter.
54
19 October 2010
Communication
between the Applicants and their legal advisors reporting on the
progress of the matter, and recording advice
to client and
strategy in respect of the future conduct of the matter in light
of the pending litigation/criminal investigation.
55
21 October 2010
Communication
between the Applicants and their legal advisors recording
instructions provided and advice sought by client,
and strategy in
respect of the future conduct of the matter in light of the
pending litigation/criminal investigation.
56
21 October 2010
Communication
between the Applicants and their legal advisors recording strategy
in respect of the future conduct of the matter
in light of pending
litigation/criminal investigation.
57
21 October 2010
Communication
between the Applicants and their legal advisor reporting on the
progress of the matter, and recording advice
to client in light of
pending litigation/criminal investigation.
58
21 October 2010
Communication
between the Applicants and their legal advisors reporting on the
progress of the matter, and recording strategy
in respect of the
future conduct of the matter in light of pending
litigation/criminal investigation.
59
22 October 2010
Memorandum
prepared by members of the Applicants' legal team recording
instructions provided and advice sought by client,
and advice to
client in light of pending litigation/criminal investigation.
60
22 October 2010
Communication
between the Applicants and their legal advisors recording advice
to client, and strategy in respect of the future
conduct of the
matter in light of pending litigation/criminal investigation.
61
22 October
2010
Communication
between the Applicants and their legal advisors recording further
advice to client and strategy in respect of
the future conduct of
the matter in light of pending litigation/criminal investigation.
62
01 November 2010
Communication
between the Applicants and their legal advisors recording
instructions provided and advice sought by client
in light of
pending litigation/criminal investigations.
63
01 November 2010
Contemporaneous
consultation notes prepared by a member of the Applicants' legal
team in respect of a consultation with legal
team and client.
64
01 November 2010
Communication
between the Applicants and their legal advisors reporting on the
progress of the matter, and recording instructions
provided and
advice sought by client in light of pending litigation/criminal
investigations.
64A
01 November 2010
Communication
between the Applicants and their legal advisors reporting on the
progress of the matter, and recording advice
to client In light of
pending litigation/criminal investigations.
65
02 November 2010
Communication
between the Applicants and their legal advisors reporting on the
progress of the matter, and recording advice
to client in light of
the pending litigation/criminal investigation.
66
03 November 2010
Communication
between the Applicants and their legal advisor reporting on the
progress of the matter, and recording strategy
in respect of the
future conduct of the matter in light of pending
litigation/criminal investigation.
67
03 November 2010
Communication
between members of the Applicants' legal  team reporting on
the progress of the matter, and recording instructions
provided
and advice sought by client, and strategy in respect of the future
conduct of the matter in light of pending litigation/criminal

investigation.’
[29]
The very first item in annexure K shows that the information is
insufficient to support a claim
of privilege. What was discussed
during a meeting with the DSO is not specified nor has it been
contextualised. In fact, it is
doubtful that the meeting could have
taken place in confidence as would be required for the purposes
[46]
of claiming legal professional privilege. The privilege does not
exist in a vacuum.
[30]
Further, item 6 on the list in annexure K is a memorandum drafted by
the applicants’ legal
adviser reporting on the progress of the
matter. It is so vague that in my view, this court cannot on the
information provided,
determine that it is a document that will in
all likelihood attract legal professional privilege.
[31]
Item 10, is an invoice for work done. It is not specified as to the
kind of work done nor whether
the work was done in relation to the
charges the three applicants are facing in this division. In fact,
the heading of annexure
K describes the client as Intaka, yet the
description of the documents in column three refers to more than one
applicant. The aforesaid
criticism is applicable to many other items
listed in annexure K. It is not, for purposes of this judgment,
necessary to evaluate
them all.
[32]
Since the applicants rely on legal professional privilege as the
factual foundation to qualify
as a special case, they have an onus to
place relevant facts before this court that justifies their claim to
legal professional
privilege, which in turn would give them the right
to have part of the permanent stay application being heard in camera.
Mr
Marcus
in oral argument submitted that the purpose of
annexure K is to identify the documents in respect of which the
privilege is claimed.
This submission is untenable in the light of
the concession made by the applicants that the documents listed in
annexure K underpin
their claim of legal professional privilege,
which supports the case as being special.
[33]
As of right, privilege cannot be claimed without jurisdictional facts
being placed before the
court. Annexure K serves as the factual
foundation for the privilege and should specify the circumstances
that qualify the communication
to be privileged. To do differently
will mean that any communication, if claimed to be privileged, would
qualify as privileged
communication without meeting any of the
requirements.
Onus
[34]
It has been submitted by the applicants that the issue of onus does
not arise in the interlocutory
application since the application
deals with a procedural mechanism that should be adopted at the
hearing of the permanent stay
application. I disagree. Whilst the
onus is not an onus in the strict since, the applicants ought to
place facts before this court
that justify a departure from the open
court principle.  This court has to determine, on the facts
submitted by the applicants,
that there is a special case and that
special circumstances exist to justify an order in terms of s 32.
[47]
Since the general rule is that all hearings are conducted in an open
court, there is an onus on the party that requests that the
rule be
dispensed with.
[48]
The facts placed before this court should show that the applicants
are entitled to the relief sought. It is trite that in civil

proceedings the incidence of onus of proof is primarily determined on
the factual allegations contained in the pleadings.
[49]
[35]
Principally, the person who claims legal professional privilege bears
the onus to prove the circumstances
which warrant the claim to be
privileged. In
Mohamed
v President of the Republic of South Africa & others
,
[50]
the court held:
‘
It
is common cause that the
onus
in respect of the claim of legal professional privilege rests upon
the respondents
.
This accords with first principles and is line with the notion that
the
onus
of establishing a constitutionally acceptable justification in terms
of s 36 of the Constitution rests upon the party relying on
it (see
S
v Makwanyane and Another
[1995] ZACC 3
;
1995
(3) SA 391
(CC)
(1995 (2) SACR 1
;
1995 (6) BCLR 665
)
at para [9].’
[51]
(My emphasis).
[36]
When a court resorts to a ‘judicial peek’ to determine
whether a document is privileged
or not, the party claiming such
privilege should provide sufficient information that warrants the
claim.
[52]
In
South African
Airways SOC v BDFM Publishers (Pty) Ltd & others
,
[53]
the court criticised the shorthand used to say a ‘document is
privileged’. I agree with the views of Sutherland J at
para 46:
‘
[46.1]
First, it is not, in truth, the document which is “privileged”,
rather what is really meant to be said
is that the
information
which is contained in
the document is privileged. This distinction is less precious than it
may seem, at first glance, to be.
[46.2]
Secondly, to describe the
information
as privileged, obscures
the point that the right
vests in the client
, not in the
information, and that the right is an
entitlement to claim
“privilege” over the information. This can and must mean
no more than
a right to refuse to divulge the information and
prevent it being adduced in evidence in any proceedings,
usually
legal proceedings, but also any sort of adversarial proceedings where
the recipient of legal advice is involved. The information
is, thus,
never more than the subject-matter of a claim of privilege.
[46.3]
Third, the “privilege” cannot reside in the information
anyway, because it only becomes the subject-matter
of the claim of
privilege
when that
right not to disclose it is claimed, and not before
.
At most, the information per se can never be more than
eligible
to be the subject-matter of legal advice privilege, ie if it
satisfies the test of being (1) legal advice; (2) given by a legal

advisor; (3) in confidence to a client; and (4) is claimed. If
privilege is not claimed the information about the legal advice
can
be adduced in legal proceedings because then, to use the shorthand,
it is not “privileged”.’
(Original footnotes
omitted).
[37]
In
President of the
Republic of South Africa & others v M & G Media Ltd
,
[54]
Nugent JA warned courts not to take a judicial peek without an
evidential basis having been laid. The court cautioned as follows:
‘
There
is one further aspect of the procedures that are provided for in the
Act that I ought to mention. Section 80(1) permits a
court to take
what counsel for M & G described as a “judicial peek”
at the record that is in issue. A court that
does that is prohibited
from disclosing to any person, including the requester, “any
record . . . which, on a request for
access, may or must be refused .
. .”.
Courts
earn the trust of the public by conducting their business openly and
with reasons for their decisions. I think a court should
be hesitant
to become a party to secrecy with its potential to dissipate that
accumulated store of trust
.
There will no doubt be cases where a court might properly make use of
those powers but they are no substitute for the public body
laying a
proper basis for its refusal.
’
[55]
(My emphasis).
[38]
The applicants have submitted that the State has acknowledged that
certain documents are privileged.
In support of this submission the
applicants have placed reliance on para 83 of the answering affidavit
filed on behalf of the
NPA in the permanent stay application. On a
point of procedure, we (the presiding judges) were informed by the
applicants, for
purposes of this application, not to read the
voluminous papers filed in the permanent stay application,
[56]
yet the applicants relied on some of the affidavits filed in the
permanent stay application during submissions.
[39]
In light of the submissions made it was necessary to read and
consider a large part of the papers
filed in the permanent stay
application. In para 83, the NPA stated the following:
‘
I
must point out that it is not possible, at this stage, fully and
properly
to
deal with the allegation that certain material on the list is legally
privileged
.
This Honourable Court has not had the opportunity of seeing the
listed documents; nor has the NPA’s attorney of record,
the
applicants having been reluctant to allow him to peruse the
documents. The NPA will submit at the hearing of this matter that
the
Court and the respondents’ legal representative be afforded an
opportunity to view the listed documents so as to enable
them to
argue the privilege point. That I have been advised, is the only
meaningful way in which the contentions around privilege
could be
ventilated in this court.’
[57]
(My emphasis).
[40]
The aforegoing paragraph was relied on as an admission made by Mr
Ramaite
of the NPA that some documents are privileged. A clear
reading of the paragraph shows that he is not agreeing on the issue
that
some documents are privileged. Any doubt about such an alleged
admission should disappear when para 85 is read with para 83. This
is
what is stated further in the very same affidavit:
‘
In
any event, I submit that
even
IF
some of the documents are privileged, and can be shown to have been
read by the NPA (which allegations are, save as otherwise indicated,

denied), that would be no basis for a permanent stay of prosecution
because the applicants have other remedies in this regard,
less
drastic than that sought. Further argument will be advanced at the
hearing of this application
.’
[58]
(My emphasis).
[41]
The applicants further submit that this court should focus on how the
court hearing the permanent
stay application in due course is to deal
with the category of documents over which privilege is claimed.
[59]
This submission places the cart before the horse.
[42]
In my view, we have to decide on a narrow issue, namely, whether the
applicants succeeded in
showing that their case is sufficiently
special to be heard partly in camera. This court’s role is
therefore not to devise
a procedure for the court hearing the
permanent stay application as to how that court should deal with the
application. Instead,
this court is required to determine whether the
applicants have shown that they are entitled to the relief sought.
[43]
The relevant issue is not whether or not the State would be able to
give a confidentiality undertaking,
but whether the applicants can
legitimately claim that the State should give such an undertaking. In
the circumstances of this
case, the applicants have failed to lay a
factual foundation that would qualify their case as a special case.
In the absence of
such speciality, they are not be entitled to the
relief sought.
Nkosi
AJ order
[44]
In relation to the Nkosi AJ order, the respondents submit that the
court order granted by Nkosi
AJ (as he then was), precludes any
determination by this court of the documents dealt with by the
court.
[60]
The order reads as follows:
‘
1.
The Second and Third Respondents be and are hereby interdicted and
restrained from
accessing, reviewing or attempting to access or view
the documents presently in the custody of the Registrar of this Court
in sealed
bags (collectively “
the
documents
”)
until a decision has been made by the Criminal Court seized with the
matter whether the documents as listed in annexure
“A”
hereto are subject to privilege or not.
2.
The Registrar be and is hereby directed to keep the documents in
custody until a decision has been made by the criminal court seized

with the matter, whether
the documents as listed in Annexure “A”
hereto are subject to privilege or not.
3.
It is recorded that the Applicants have placed the Second and the
Third Respondents in possession of copies of all the documents,

except for those listed in Annexure ‘A’ hereto
.
4.
Third Respondent is to pay
the costs of this application as between party and party,
including
the costs consequent upon the employment of two counsel.’ (
My
emphasis
).
Annexure
A attached to the order lists 40 documents of which four appear to be
duplicated, so in essence 36 documents are identified
in the order.
[45]
The applicants submit that the Nkosi AJ order does not stand in the
way of a separate and anterior
cause of action, which is the
permanent stay of prosecution. It has been argued by counsel that the
court hearing the permanent
stay application will be required to
consider the documents and determine the breach of the privilege. Mr
Marcus
submits that since the Nkosi AJ order was one agreed to
and granted for a specific purpose - that it does not mean that a
different
court may not view the documents for a different purpose. I
disagree. To do so would mean that one would be in contempt of a
lawful
order. It matters not that the order was granted for a
specific purpose, it still precludes any court other than the
criminal court
hearing the trial from looking at the said documents.
The order issued by the court is clear and to the point. In any
event, it
is irrelevant to the issue before us to state that the
order is of a lesser standard, since the parties consented to the
order.
[46]
In
Moraitis
Investments (Pty) Ltd &
others v Montic Dairy (Pty) Ltd
,
[61]
Wallis JA endorsed this view:
‘
For
so long as that order stood, it could not be disregarded. The fact
that it was a consent order is neither here nor there. Such
an order
has exactly the same standing and qualities as any other court order
.
It is res judicata as between the parties in regard to the matters
covered thereby. The Constitutional Court has repeatedly said
that
court orders may not be ignored. To do so is inconsistent with
s 165(5) of the Constitution, which provides that an order

issued by a court binds all people to whom it applies.
’
[62]
(Original footnotes omitted, my emphasis).
[47]
There is no room for the applicants’ argument that the order by
Nkosi AJ is different from
others. In
Eke
v Parsons
,
[63]
the Constitutional Court decided that it remains an order like all
other court orders provided that it is a competent order.
[64]
Madlanga J reasoned as follows:
‘
Secondly,
“the agreement must not be objectionable, that is, its terms
must be capable, both from a legal and a practical
point of view, of
being included in a court order”. That means, its terms
must accord with both the Constitution and
the law.  Also, they
must not be at odds with public policy. Thirdly, the agreement
must “hold some practical and
legitimate advantage”.’
[65]
(Original footnotes omitted).
[48]
In
Airports Company
South Africa v Big Five Duty Free (Pty) Ltd & others
,
[66]
Froneman J, on behalf of the of the majority of the court, endorsed
the principles of
Eke
above
.
[67]
[49]
This court is not persuaded that the Nkosi AJ order should be
disregarded. It remains final and
valid until amended or varied. The
applicants have not identified which of the items listed in annexure
K relate to the Nkosi AJ
order. For the reasons outlined in this
judgment they are to be excluded.
Absence
of jurisdiction in relation to the Northern Cape matters
[50]
The respondents have opposed the application inter alia on the basis
that this court does not
have jurisdiction over the Northern Cape
matters.
[51]
The applicants firstly placed reliance on what they perceive as an
extant agreement between them
and the State, agreeing to this court’s
jurisdiction over the Northern Cape cases. Secondly, the applicants
submit that the
State cannot raise the issue of jurisdiction in this
interlocutory application since the application is limited to finding
a practical
solution on how to deal with the alleged privileged
documents when the stay application is heard. The applicants also
rely on
S v Naidoo
.
[68]
Their reliance on
Naidoo
is misplaced. In
Naidoo
,
the court dealt with the litigant’s choice of forum, which
should have been the high court, not the regional court since
the
application was not brought in terms of s 342A of the CPA.
[69]
[52]
Lawsa
[70]
deals comprehensively with the jurisdiction of our courts. For the
sake of completeness, I repeat it:
‘
The
jurisdiction of the courts is regulated by primary or “original”
legislation (principally the Constitution and certain
Acts of
Parliament), secondary or “subordinate” legislation, and
the common law. While there are a host of statutes
(apart from the
Constitution) which have a bearing on jurisdiction, the principal
ones are the Supreme Court Act, the Magistrates’
Courts Act and
the
Criminal Procedure Act. Common-law
principles occupy a position
of pre-eminence only in the absence of statutory enactments altering
them, for the provisions of the
common law are overruled and
displaced by valid legislative pronouncements, which are abrogative
.’
(Original footnotes omitted).
[53]
In a criminal matter, jurisdiction is determined by the area in which
the offences have been
committed (territorial jurisdiction), the
nature of the offence (substantive jurisdiction) and also the nature
of the penalty that
should be imposed (punitive jurisdiction). Of
course, jurisdiction may also be obtained in terms of a consolidation
of multiple
offences committed in various provinces, if the National
Director of Public Prosecutions issues a certificate to have all of
the
offences being heard in one province.
[71]
No such certificate has been issued in this matter.
[54]
Jurisdiction is not something that derives from an agreement
[72]
between the parties, nor can a court assume jurisdiction not
conferred upon it by statute.
[73]
It is based on legislation, and the KwaZulu-Natal division exercises
jurisdiction over criminal matters within its jurisdiction.
The
applicants have failed to show that this court has jurisdiction over
the Northern Cape matters and for the reasons given in
this judgment,
the Northern Cape matters are excluded.
The
court’s powers in relation to granting confidentiality
agreements
[55]
Much of the argument presented dealt with the issue whether this
court is empowered to order
a confidentiality regime. Undoubtedly
this court is empowered to issue such an order; the question is
whether the applicants have
shown on a balance of probabilities that
they are entitled to such an order. This court was referred to
Bridon
International GmbH v International Trade Administration Commission &
others
[74]
and the endorsement by the SCA of the regime. The applicants concede
that the
Bridon
case dealt with sensitive commercial information that needed to be
protected by the parties in circumstances where they agreed
to a
confidentiality agreement. In
Bridon
,
the other party, Casar, pertinently conceded that there was
confidential information that required protection. In casu, the
respondents
do not agree to such an undertaking nor have the
applicants shown that the listed communications are protected by
legal professional
privilege.
[56]
The respondents submit that the
Bridon
case is distinguishable
from the applicants’ criminal case and that confidentiality
agreements do not lend themselves to
the criminal process and
procedure. Ms
Mansingh
, on behalf of the respondents, argued
that the proposed confidentiality agreement signed by the previous
counsel and the attorney
for the second respondent differs vastly
from the confidentiality agreement that the applicants want the
respondents to sign. We
were referred to para 7 of “X”
attached to the notice of motion, which reads:
‘
I
confirm having signed this undertaking and had sight of the
privileged documents. I will not act as a legal representative of
the
State in any criminal or civil proceedings against the Applicants,
prosecute any criminal proceedings against the Applicants,
advise the
State in respect of its proceedings against the Applicants or testify
against the Applicants in any future proceedings.’
[75]
[57]
It has to be stated that the confidentiality undertaking, previously
agreed to by Mr
Notshe
SC
and Mr Lekabe
indeed differs from annexure “X”.
[76]
In light of the findings reached in this judgment, it is not
necessary to elaborate on the differences between “X”
and
“WC5”.
[58]
Lastly, the applicants submit that they intend to prevent the
criminal trial from being heard,
hence the application to have their
trial permanently stayed. What is evident from this interlocutory
application is that they
want the court hearing the application for
the permanent stay to decide on the admissibility of documents not
yet presented to
the trial court. In my view, it will lead to a
piecemeal trial process. I echo the sound advice of the
Constitutional Court in
Savoi
v NDPP
[77]
where the court emphasised that it is pre-eminently the duty of the
trial court to decide on the admissibility of evidence, including

deciding on whether the admission of evidence of a particular type
would render the trial unfair. The applicants will indeed be
able to
challenge evidence illegally obtained during the criminal trial. If
there had been any abuse of obtaining evidence then
the trial court
would be the best forum to decide on allegations of abuse.
[78]
[59]
That the trial court is best suited to deal with issues of
admissibility of evidence has been
repeated in various dicta. As
early as 1996, Kriegler J on behalf of the court stated in
Key
v Attorney-General, Cape Provincial Division, & another
:
[79]
‘
It
will then be for
the
trial Judge to decide whether the circumstances are such that
fairness requires the evidence to be excluded
. It
follows that the applicant is not entitled to an order from this
Court in these proceedings that the evidence secured
as a result of
the searches and seizures will be inadmissible in criminal
proceedings against him. In so far as the decision
in
Park-Ross
is inconsistent with this conclusion, it must be taken to be
incorrect.
’
[80]
(My
emphasis).
[60]
Having carefully considered this application, I am not persuaded that
the applicants have made
out a special case as is required in terms
of s 32 of the Act. It follows that the application be dismissed with
costs.
Order
[61]
The following order shall issue:
The applicants’ application
in terms of
s 32
of the
Superior Courts Act 10 of 2013
, is dismissed
with costs, such costs to include the costs of two counsel where so
employed.
_________________
Steyn J
I agree
___________________
Kruger J
HENRIQUES
J (Separate concurring judgment)
Introduction
[62]
An eminent jurist, the late United States Supreme Court Justice Ruth
Bader Ginsburg, said: ‘You
can disagree without being
disagreeable’. With this in mind and having the benefit of
reading the erudite judgment of my
sister, Steyn J, with whom Kruger
J concurs, I arrive at the same destination, albeit taking a
different route.
Nature
of the application
[63]
This is an opposed application in terms of
section 32
of the
Superior
Courts Act,
[81
]
in which the applicants seek orders directing that a portion of the
proceedings in the application for a permanent stay of prosecution
be
heard
in camera
.
Such portion of the proceedings relate to documents which the
applicants assert are confidential as they are subject to legal

professional and/or litigation privilege. In addition, an order is
sought requiring the respondents’ legal representatives
to sign
appropriate confidentiality undertakings.
The
relief
[64]
The relief foreshadowed in the notice of motion dated 3 March 2020,
is the following:
‘
1.
It is declared that in failing to file its heads of argument
timeously, the State has
failed to comply with its obligation in
Section 165 (4) of the Constitution to assist and protect the courts
to ensure the independence,
impartiality, dignity, accessibility and
effectiveness of the courts.
[82]
2.
The portion of the proceedings relating to the inspection and
discussion of the
documents claimed by the applicants to be
privileged, is to be held “
in camera”.
3.
Apart from the applicants’ legal representatives, only those
representatives
of the respondents who undertake and sign
confidentiality agreements in the form annexed to the notice of
motion, marked “X”
are permitted to appear in court.
4.
No person who has been present in the court during the “
in
camera”
session is permitted to be involved with any
subsequent investigation or prosecution of the applicants.
5.
There is no order as to costs, save in the event of opposition, in
which case,
costs will be sought from any party who opposes the
granting of relief sought in this application.’
[65]
Annexed to the notice of motion as X’ is the privilege and
confidentiality undertaking
proposed by the applicants for signing by
the representatives of the respondents. The applicants require the
respondents’
legal representatives to sign ‘X’
before they view documents which the applicants allege are either
subject to legal
professional and/or litigation privilege and/or are
confidential.
The
applicants’ request to hold bifurcated hearings
[66]
The applicants essentially seek procedural relief before this court,
prior to its intended application
for a permanent stay of the
criminal proceedings. The premise of the relief sought is on the
basis that the documents reflected
in Annexure ‘K’ (which
has been transposed in the main judgment) are privileged. Hence,
in
camera
proceedings are appropriate to protect the confidential
and privileged status of the documents.
[67]
It is perhaps useful at this juncture to briefly consider the
approach adopted in other jurisdictions
to
in camera
proceedings.
Foreign
jurisprudence
[68]
The issue of
in camera
proceedings has been deliberated on in various international forums.
In
Rizzuto c. R,
[83]
which involved the interception of private communications and the
violation of client privilege, the trial court in refusing the

request for a bifurcated hearing held as follows:
‘
In
the absence of any truly special, indeed exceptional, circumstances,
a two-stage proceeding is unwise.
.
. .
A
proceeding to birfurcate the hearing would not be an effective use of
judicial resources.
It
might result in the Court rendering multiple judgments, when the
issues should all be decided in a single judgment.
.
. .
The
Court’s discretionary power should be exercised in favour of a
framework that guarantees procedural fairness and the sound

administration of justice.’
[84]
[69]
The judge, in a detailed analysis, considered the concept of public
interest, the administration
of justice, prejudice and the interest
society has in having a final decision on the merits of the case. It
warrants mentioning
that an order was granted for a publication ban
on the members of the press and public present at the hearing.
However, the main
application for a stay of the prosecution was
dismissed. Similar authorities emanating from the Canadian Supreme
Court can be found
in
Smith
v Jones,
[85]
and
R v Bacon.
[86]
[70]
The court in
Smith v
Jones
similarly
acknowledged the importance of the rules relating to privilege,
especially attorney-client privilege in criminal matters.
It
recognised that attorney-client privileged was the ‘highest
privilege’
[87]
recognised by the courts but was not an absolute one and was subject
to exceptions.
[88]
It directed a
psychiatrist who had consulted with the accused to disclose such
information to the police and the Crown. It further
dismissed the
request for a hearing
in
camera
but directed
that members of the press and public present in court were subject to
a publication ban.
[71]
The English courts have reaffirmed the normal rule that criminal
court proceedings should be
conducted publicly. Nonetheless, courts
do have the inherent power to order that the public be excluded. The
effect of which is
to restrict the proceedings to be held
in
camera
. The exercise
of such power, together with any other derogation from the principles
of open justice, should be strictly confined
to cases where the
public’s presence would ‘frustrate or render impractical’
the administration of justice.
[89]
[72]
I now turn to consider the current application.
Legal
framework
[73]
Section 32 reads as follows:
‘
Save
as is otherwise provided for in this Act or any other law, all
proceedings in any Superior Court must, except in so far as
any such
court may in special cases otherwise direct, be carried on in open
court.
’
[74]
The provisions of the section must be interpreted in line with
section 34 of the Constitution,
which entrenches the right to have
disputes resolved in ‘a fair public hearing before a court’,
the public interest
in having open court hearings and the interests
of private litigants. All proceedings would include arguments on
behalf of litigants.
[90]
The predecessor to section 32 was section 16 of the Supreme Court
Act.
[91]
The section and its predecessor apply to both civil and criminal
proceedings, although the
Criminal Procedure Act
[92
]
has its own sections applicable to
in
camera
hearings.
[75]
The section confers a discretion on the court which is to be
exercised in ‘special cases’.
Exactly what is meant by
‘special cases’ must depend on the circumstances of each
particular matter, and it may be
invoked in matters involving private
individuals or where the public has an interest.
[76]
Van Dijkhorst J in
Cerebos
Food Corporation Ltd vs Diverse Foods SA (Pty) Ltd
,
[93]
indicated that:
‘
.
. . the emphasis should not, on the one hand, fall on the right of
the public to know . . . or, on the other hand, on the right
of the
private individual not to be embarrassed, but on the proper
administration of justice’.
What
constitutes ‘special cases’?
[77]
The earlier cases dealing with
in camera
applications and what
constituted ‘special cases’, evolved from Anton Piller
applications and section 16 of the Supreme
Court Act, and some
guidance can be sought from those decisions.
[78]
In
Financial Mail (Pty)
Ltd v Registrar of Insurance and others
,
[94]
Marais J issued an order directing that an application be heard
in
camera
and that the
papers and proceedings be sealed and not be made public. This case
involved an application by the Financial Mail, a
newspaper
publication, which learnt of an application by the Registrar of
Insurance for the winding-up of an insurance company
called Auto
Protection Insurance. This newspaper publication devoted itself to
matters of public interest in the field of finance,
financial
institutions and investment.
[79]
The court subsequently rescinded those orders sealing the proceedings
as well as holding the
proceedings
in camera
, as after it had
granted such orders, the judicial manager of the insurance company
consented to the judgment. The court held as
follows:
‘
In
civil matters the Court must decide whether in the particular
circumstances of a specific occasion such “a special case”

is constituted as to justify a departure from what has actually
been the absolute rule in parts of the country for more than
one and
a half centuries and in none for less than half a century, namely,
that the civil court never closes its doors to the public.
The
wisdom of allowing a discretion to the presiding Judge is clearly
illustrated in the present matter. The insurance company concerned

had run into financial difficulties of such a serious nature that the
Registrar of Insurance, whose duty it is to guard against
insolvent
insurers continuing to write business, approached the Court with an
application for its liquidation. On the day of the
hearing it
was suggested by the company that it would be able to offer the
Registrar of Insurance acceptable guarantees that
it could extract
itself from its difficulties. The proposals were ultimately accepted
by the Registrar, on condition that the company
would cease to
undertake compulsory third party motor insurance.
If
the Court had not acceded to the request of the parties to take the
quite exceptional course of not only closing the doors of
the Court
but also of issuing an order that the outcome of the application be
kept secret for an indefinite period of time, the
public would have
learnt of the financial difficulties of the company at once: it being
an institution dependent on public confidence
in its stability,
the company's liquidation would have been inevitable, no matter
what efforts its management and the Registrar
could have taken to
save it.
Unlike
with most other commercial enterprises, its premature closing down
would not only have harmed the shareholders. Policy-holders
would
have lost their cover also; and, what is more serious, third
parties having claims against the company under third party

insurance might have had to abandon their claims for compensation. An
insurer, and more particularly a third party insurer, has
obligations
extending far beyond those of shareholders and ordinary creditors -
third parties, who had had no say in the choice
of the insurer who
would have to compensate them for losses in road accidents, and
who might have to face a future of destitution
if the insurer failed,
are also involved. That is the reason why the Registrar of Insurance
is bound to explore every possibility
of saving an insurance
institution before taking the final step of seeking its winding-up.
Every such possibility is ruled out
as soon as the Court refuses to
have the matter heard
in camera.
This
then, in my respectful view, was pre-eminently a “special case”
in terms of the Act where the Court should have
ordered, as it did,
that none of the proceedings, nor even the fact of the proceedings,
was to be made public. The fact that a
year later the efforts to save
the company did come to nought is irrelevant to the question whether
or not at the first stage
secrecy was imperative - a matter in
which the Court would obviously be guided by the expert views of the
Registrar.’
[95]
[80]
In
Economic Data
Processing (Pty) Ltd and others v Pentreath
,
[96]
Coetzee J in considering an Anton Piller application and the need for
it to be heard
in
camera
, also had
regard to the provisions of section 16 of the Supreme Court Act, and
held that:
‘
The
openness of our judicial proceedings is jealously guarded. It is
entrenched in this provision as only when the Court so directs
in
“special cases” can there be a departure therefrom. This
is not lightly done.’
[97]
Coetzee
J referred to the decision of Marais J in
Financial
Mail (Pty) Ltd supra
and
Du Preez v Du Preez:
Standard Bank of South Africa intervening
.
[98]
[81]
Du Preez
concerned
sequestration
proceedings in which one of the applicants applied for an order that
the proceedings be held
in camera
so
as not to jeopardize negotiations for the disposal of certain mineral
rights. Hiemstra J, in considering such application, had
regard to
section16 and quoting from
Halsbury,
Laws of England
, held the following:
‘
The
kind of circumstances envisaged can be judged from passages in
Halsbury,
Laws
of England
,
to one of which I will refer. In
Halsbury
,
vol. 9, p. 345, para. 813, the following is said:
“
In
general all cases, both civil and criminal, must be heard in open
Court, but in certain exceptional cases where the administration
of
justice would be rendered impracticable by the presence of the
public, the Court may sit
in
camera
. Thus the
Court may so sit, either throughout the whole or part of the hearing,
whether it is necessary for the public's safely
or whether the
subject-matter of the suit would otherwise be destroyed for example,
by the disclosure of a secret process or of
a secret document, or
where the Court is of the opinion that the witnesses are hindered in
or prevented from giving evidence by
the presence of the public.”
From
a case there quoted,
Scott
v.
Scott
,
1913 A.C. 417
, it appears that such a ruling, namely that
proceedings take place
in camera
, would be made “in
the interests of justice”. The same is said in
Halsbury
,
vol. 16, p. 440, para. 795, namely that such an order would be given
where
“
the
administration of justice would be rendered impracticable by the
presence of the public”.’
[99]
[82]
Hiemstra J took the view that if the interests of the State or the
public had been involved,
he would have considered clearing the court
and holding an
in camera
hearing. In addition, he found that
the applicant for the
in camera
hearing created the situation
by aligning himself with the sequestration proceedings instituted by
his son. In addition, once an
estate was placed under sequestration,
the trustees would be dealing with the negotiation of the sale of the
assets, and the trustees
expressed no view or any concern of the
likelihood of a breakdown in such negotiations, should a
sequestration order be granted
and the proceedings not be heard
in
camera.
He thus ruled that the proceedings would take place in
open court.
[83]
In
Pentreath
,
[100]
Coetzee
J considered the two decisions in
Financial
Mail
and
Du
Preez
and
took the view that ‘special cases’ as defined can seldom
refer to those cases between parties where their own private

interests are involved. He opined that ‘special cases’
involve public interest, and held as follows:
‘
I
would not hold that a case qualified as "special" unless I
were satisfied that the public interest demand that that
course be
followed. If in a particular case the relief to which an applicant is
entitled might be academic if he gave notice of
the application, the
practice is to apply ex parte. There is no need to resort to secrecy
of this nature.’
[101]
Obviously he was stating this in
the context of Anton Piller orders.
[84]
The position relating to
in
camera
proceedings, as
contemplated in section 32, is in line with international practice in
comparable jurisdictions. It has long been
a fundamental tenet of
common law that judicial proceedings must take place in an open
court. This principle was codified in
section 152
of the
Criminal
Procedure Act and
constitutionally entrenched in section 35(3)
(c)
of the Constitution. In
S
v Geiges and others
(
M
& G Media Ltd and others intervening)
[102]
Labuschagne J, opined that:
‘
The
open justice principle is a fundamental principle of our law. The
starting point should therefore be that trial proceedings
should be
held in open court unless there are compelling reasons to close the
doors of the court to the media and/or the public.
If it then
transpires that in the interests of the State, or of good order, or
of the administration of justice, that such proceedings
be held
behind closed doors the court may make an appropriate order in the
exercise of its discretion.
’
[85]
In
Young and another v
Minister of Safety and Security and others
,
[103]
the application for a hearing
in
camera
was
dismissed by Plasket J, who reaffirmed the approach by Van Dijkhorst
J in
Cerebos Food
Corporation Ltd v Diverse Foods SA (Pty) Ltd and another supra,
which
approach Plasket J summarised as:
‘
.
. . at
the
centre of the enquiry was the question whether the proper
administration of justice required the closing of the court's doors

but that, in exercising the discretion vested in him or her by s 16,
a Judge should work from the default position that all cases
should
be heard in public and that this rule should not be departed from
lightly.’
[104]
[86]
In
Cape Town City v
South African National Roads Authority and others
,
[105]
Ponnan JA, in dealing with the provisions of section 16 of the
Supreme Court Act, referred to the
dictum
of the late Chief Justice Dickson of the Canadian Supreme Court in
Attorney General (Nova
Scotia) v MacIntyre
,
[106]
where he said the following:
‘
Many
times it has been urged that the “privacy” of litigants
requires that the public be excluded from court proceedings.
It is
now well established, however, that covertness is the exception and
openness the rule. Public confidence in the integrity
of the court
system and understanding of the administration of justice are thereby
fostered. As a general rule the sensibilities
of the individuals
involved are no basis for exclusion of the public from judicial
proceedings.’
[87]
In summary, having regard to the South African authorities, the
starting point when considering
such applications is the premise that
court proceedings must be open to all and be open to the public. For
the exception in
section 32
of the
Superior Courts Act to
apply,
truly convincing reasons must exist to depart from the principle of
open justice. Each case must however be determined on
its own
particular set of facts, and there are no hard and fast rules which
apply.
[88]
In relation to the matter which served before this court, the premise
of the applicants’
contention is that the succeeding
application for a permanent stay of prosecution should be restricted
to
in camera
proceedings in so far as that portion which
relates to the alleged confidential/privileged documents, as
reflected in Annexure ‘K’,
is concerned. Counsel for the
applicants, Mr Marcus SC in his written submissions, stated that the
court in this interlocutory
proceeding was not seized with the issue
of making a final determination as to whether or not any or all of
the documents were
privileged, as a decision on these questions would
equate to pre-judging the very issues which are central to the
permanent stay
hearing itself.
[89]
In my considered view, if this court is excused from the obligation
of making a determination
regarding the privileged status of the
documents in Annexure ‘K’, the conclusion that a special
case or special circumstances
exist to warrant the deviation from the
general rule of open public hearings, is nullified. I am mindful of
the fact that the applicants
find themselves in an invidious position
in attempting to establish the ‘special case’ as is
contemplated in
section 32
without addressing the status of the
alleged privileged documents.
[90]
This circular argument leads to the inescapable conclusion that the
onus on the applicants cannot
be discharged in establishing special
circumstances, nor that the administration of justice deems it
necessary to depart from the
clearly entrenched rule, both at common
law and in terms of the Constitution, that hearings should be held in
open court.
[91]
With the exception of the argument relating to the documents in
Annexure ‘K’, it
is common cause that no other
circumstances are present that warrant a finding that a ‘special
case’ exists, necessitating
a hearing
in camera
. It is
common cause that the only basis for this application is Annexure
‘K’.
The
main judgment
[92]
The deviation from the main judgment penned by Steyn J, which I refer
to in the introduction
lies in the fact that having reached the
conclusion that the requirements of section 32 have not been met by
the applicants, the
procedural interlocutory application falls to
fail on such grounds on its own standing. The analysis in the main
judgment in relation
to the status of the communications set out in
Annexure ‘K’ does not require determination by this court
and ought
not to have been opined upon.
[93]
As concluded by Labuschagne J in
S
v Geiges
,
[107]
if it then transpires in further hearings, ‘
that
such proceedings be held behind closed doors the court may make an
appropriate order in the exercise of its discretion’.
In view of the fact that any order made by this court will be of an
interlocutory nature, the applicants will be entitled to renew
their
application on the same papers, amplified by such evidence as may be
necessary, at any stage during the proceedings. That
court will then
have to consider or reconsider and assess the matters raised, and the
evidence placed before the court on an ongoing
basis, before
exercising its discretion to close the proceedings and hold them
in
camera.
[94]
In deciding such application, this court is called upon to make a
preliminary finding on the
confidential and/or privileged nature of
these documents. In my view, this approach is problematic as it may
very well have the
effect of usurping the discretion of the court
hearing the application for a permanent stay of prosecution by
pre-empting a finding
on the confidential and/or privileged nature of
these documents.
[95]
By analysing the purport of the documents contained in Annexure ‘K’
and expressing
a finding in respect of such documents, this may
result in impeding or restricting the court hearing the application
for a permanent
stay of the prosecution, and the criminal trial of
the matter, from arriving at a different or variant conclusion.
[96]
I am equally of the view that the main judgment ought not to have
delved into the respondents’
points
in limine
relating
to inter alia jurisdiction, piecemeal litigation and the pre-existing
order of Nkosi AJ, and to make findings in respect
of such issues. I
align myself with the unanimous view that the applicants have failed
to discharge the precondition of a ‘special
case’, hence
rendering the application incapable of success. The above departure
does not detract from the fact that I concur
with the order proposed
in the main judgment.
HENRIQUES
J
APPEARANCES
Counsel for the
applicants
:
Mr Marcus SC
/ Mr Du Plessis SC
Instructed
by

:           ENS
Africa
c/o Nicholson
& Nicholson
40 Hilton
Avenue
Hilton
REF: B
Nicholson/BNL2328
Email:
brett@nicholsonlaw.co.za
Counsel for the
respondents
:
Mr
Choudree SC / Ms Mansingh
Instructed by

:           State
Attorney, KwaZulu-Natal
Durban
c/o Cajee
Setsubi Chetty Inc
195 Boshoff
Street
Pietermaritzburg
Ref:
4272/13/P1/kp
Email:
PKevan@justice.gov.za
Date
of Hearing

:           06
October 2020
Date
of Judgment

:           29
January 2021
[1]
United
States v Nixon,
[1974] USSC 159
;
418
U.S. 683
(1974) at 710.
[2]
See
Savoi
& others v National Director of Public Prosecutions &
another
2014
(1) SACR 545
(CC) and
Savoi
& others v National Prosecuting Authority & another
(5867/2013)
[2018] ZAKZPHC 7 (23 February 2018).
[3]
The
alleged abuses in the permanent stay application were aptly
summarised by Mnguni J in
Savoi
& others v National Prosecuting Authority & another
(5867/2013)
[2018] ZAKZPHC 77 (23 February 2018) in para 2 as:
‘
(a)
repeated violations of the applicants’ legal professional
privilege which occurred through
the police seizing, keeping and
utilising in their reports documents which are subject to such
privilege and which go to the
heart of the applicants’ defence
in the criminal trial;
(b)
deliberate and concerted infringements of the applicants’
constitutional rights
by detaining the first and third applicants
unlawfully and in circumstances where detention was unnecessary,
seeking to punish
the first applicant by opposing his release on
bail in circumstances where palpably there were no grounds to do so,
restricting
the first applicant’s right to communicate with
his legal representatives, unreasonably seizing the applicants’
property
and hampering the applicants’ business, disregarding
the presumption of innocence and ignoring and violating binding
court
orders made in favour of the applicants;
(c)
adopting an impermissible “convict-at-all-costs”
approach in the State’s
dealings with the applicants; and
(d)
the unlawful, irrational and inexplicable refusal by Advocate Noko
(Noko), who is the
Director of Public Prosecutions in KwaZulu-Natal,
to withdraw the charges against the applicants, in circumstances
where charges
have been withdrawn against certain of the applicants’
co-accused who are alleged to be politically connected on the ground

that the evidence against them was unconvincing, unsubstantiated and
insufficient to ground a conviction beyond a reasonable
doubt.
’
[4]
Thint (Pty) Ltd v
National Director of Public Prosecutions & others; Zuma v
National Director of Public Prosecutions &
others
2009 (1) SA 1
(CC).
[5]
See
permanent stay application, answering affidavit para 4 at 1316.
[6]
See s
32 application at 4-6.
[7]
See s 32 application at 9
.
[8]
See
permanent stay application at 1343.
[9]
See
permanent stay application, answering affidavit para 89 at 1344.
[10]
The a
pplicants
aver that Mazars Forensic Services (Pty) Ltd was engaged in
assisting them in their legal defence.
[11]
See s
32 application, answering affidavit at 59.
[12]
Harksen v
Attorney-General of the Province of the Cape of Good Hope &
others
1998 (2) SACR
681
(C) para 79.
[13]
Wild
& another v Hoffert NO & others
[1998] ZACC 5
;
1998
(3) SA 695
(CC) para 26. Also see
Klein
v Attorney-General, Witwatersrand Local Division, & another
1995
(3) SA 848
(W) where the court emphasised that not every violation
of a fair trial right will result in avoiding the trial. At 862D-E
it
was held:
‘
There
has, however, never been a principle that a violation of any of the
specific rights encompassed by the right to a fair trial
would
automatically preclude the trial. Such a rigid principle would
operate to the disadvantage of law enforcement and the consequent

prejudice of the society which the law and the Constitution is
intended to serve. Before any remedy can be enforced the nature
and
extent of violation must be properly considered.’
[14]
Cf. s 16 of the Supreme Court Act 59 of 1959 that provided:
‘
Save
as is otherwise provided in any law, all proceedings in any court of
a division shall, except in so far as any such court
may in special
cases otherwise direct, be carried on in open court.’
[15]
The confidentiality agreement is marked “X” and attached
to the notice of motion.
[16]
Cerebos Food
Corporation Ltd v Diverse Foods SA (Pty) Ltd & another
1984 (4) SA 149 (T).
[17]
Ibid at 158G-I.
[18]
See s 34 of the Constitution of the Republic of South Africa, 1996
that reads:
‘
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a
fair public
hearing before a
court or, where appropriate, another independent and impartial
tribunal or forum.’ (My emphasis).
[19]
In
Midi Television
(Pty) Ltd t/a E-TV v Director of Public Prosecutions (Western Cape)
[2007] ZASCA 56
;
2007 (5) SA 540
(SCA) para 9, Nugent JA defined the process as
follows:
‘
T
hey
are rather to be reconciled by recognising a limitation upon the
exercise of one right to the extent that it is necessary
to do so in
order to accommodate the exercise of the other (or in some cases, by
recognising an appropriate limitation upon the
exercise of both
rights) according to what is required by the particular
circumstances and within the constraints that are imposed
by s 36.
That they are to be reconciled within the constraints of s 36 is
apparent from the following observation of Langa DCJ
in
Islamic
Unity Convention v Independent Broadcasting Authority and Others:
“
There
is thus recognition of the potential that [freedom of] expression
has to impair the exercise and enjoyment of other important
rights,
such as the right to dignity, as well as other State interests, such
as the pursuit of national unity and reconciliation.
The
right is accordingly not absolute; it is, like other rights, subject
to limitation under s 36(1) of the Constitution
.”’
(Original footnote omitted, my emphasis).
[20]
Du
Preez v Du Preez: Standard Bank of SA Intervening
1976
(1) SA 87
(W) at 88C and
Scott
& another v Scott
[1913]
AC 417.
[21]
See
Independent
Newspapers (Pty) Ltd v Minister for Intelligence Services: In re
Masetlha v President of the Republic of South Africa
& another
2008
(5) SA 31
(CC) paras 44-46
.
[22]
Shinga
v The State & another (Society of Advocates, Pietermaritzburg
Bar, as Amicus Curiae) O’Connell & others v
The State
2007
(4) SA 611 (CC).
[23]
Ibid
para 26.
[24]
S v Leepile &
others (4)
1986
(3) SA 661 (W).
[25]
Ibid
at 664B-D.
[26]
Economic Data
Processing (Pty) Ltd & others v Pentreath
1984
(2) SA 605
(W) at 607B-C.
[27]
Cape
Town City v South African National Roads Authority & others
2015 (3) SA 386 (SCA).
[28]
Ibid
para 16.
[29]
Independent
Newspapers (Pty) Ltd v Minister for Intelligence Services:
In Re
Masetlha
v President of the Republic of South Africa & another
2008
(5) SA 31 (CC).
[30]
Ibid
para 39.
[31]
Centre for Child Law &
others v Media 24 Ltd & others
2018
(2) SACR 696 (SCA).
[32]
Ibid para 56 where it was held:
‘
In
similar vein, the media respondents have referred to the affirmation
in the Constitutional Court in
Independent
Newspapers
that “the default position
is one of openness”. So too, they have referred to the
speech in the United Kingdom’s
House of Lords in
In
re S
(
a child
)
in which the “general and strong rule” in favour of
openness and general public access to information concerning
court
proceedings was affirmed. There can be no question that, as
general principles, these are to prevail in our country.’

(Original footnotes omitted).
[33]
See P
J Schwikkard and S E van der Merwe
Principles
of Evidence
4 ed (2016) at 26-28.
[34]
The
Constitution of the Republic of South Africa, 1996.
[35]
Bank
of Lisbon and South Africa Ltd v Tandrien Beleggings (Pty) Ltd &
others (2)
1983
(2) SA 626
(W) at 629F-G:
‘
The
basis of privilege is confidentiality. When confidence ceases,
privilege ceases.’
[36]
2009 (1) SA 1
(CC)
para
184.
[37]
See D
T Zeffertt et al
The
South African Law of Evidence
(2017) at 713-718.
[38]
See
R
v Cox and Railton
(1884) 14 QBD 153
at 165-166;
Botes
v Daly & another
1976
(2) SA 215
(N) at 222 and
Harksen
v Attorney-General of the Province of the Cape of Good Hope
above.
[39]
S v Safatsa &
others
1988
(1) SA 868
(A) at 885G-I.
[40]
Euroshipping
Corporation of Monrovia v Minister of Agricultural Economics and
Marketing & others
1979
(1) SA 637 (C).
[41]
Ibid
at 643H.
[42]
Bogoshi v Van Vuuren
NO & others; Bogoshi & another v Director, Office for
Serious Economic Offences, & others
1996
(1) SA 785 (A).
[43]
Ibid
at 795D-F.
[44]
See
Klein
v Attorney-General, Witwatersrand Local Division
above. Inasmuch as the right was violated, the court held that it
did not warrant a permanent stay despite the fact that the

privileged information came to the attention of the
Attorney-General.
[45]
See s
32 application, answering affidavit paras 6-8 at 58-59.
[46]
See
for example
Giovagnoli
v Di Meo
1960
(3) SA 393
(N) where an attorney had to negotiate a settlement. It
was held by Caney J that the meeting was not confidential since it
was
intended to be communicated to a third party and accordingly not
privilege.
[47]
In
relation to a special case see
Financial
Mail (Pty) Ltd v Registrar of Insurance & others
1966
(2) SA 219
(W) at 221F.
[48]
See
S
v Pastoors
1986 (4) SA 222
(W) at 224B-C albeit stated in an in camera
application in terms of s 153 of the CPA.
[49]
See
Schwikkard and Van der Merwe op cit at 571-575.
[50]
Mohamed v President of
the Republic of South Africa & others
2001
(2) SA 1145 (C).
[51]
Ibid para 5.
[52]
See
A Company &
others v Commissioner, South Africa Revenue Service
2014
(4) SA 549
(WCC) para 40.
[53]
South African Airways
SOC v BDFM Publishers (Pty) Ltd & others
2016
(2) SA 561 (GJ).
[54]
President of the
Republic of South Africa & others v M & G Media Ltd
2011
(2) SA 1 (SCA).
[55]
Ibid
para 52.
[56]
See applicants’ practice note paras 16 and 17 that read:
‘
16.
The affidavits in the section 32 application fall to be read.
17.
It is not necessary, for present purposes, for the voluminous
papers in the permanent stay application to be read
.’ (My
emphasis).
[57]
Permanent stay application at
1341-1342.
[58]
P
ermanent
stay application, answering affidavit para 85 at 1342.
[59]
See
applicants’ heads of argument para 3.4.
[60]
Hereinafter
reference will be made to Nkosi AJ.
[61]
Moraitis
Investments (Pty) Ltd &
others v Montic Dairy
(Pty) Ltd
2017
(5) SA 508 (SCA).
[62]
Ibid para 10
.
[63]
Eke v Parsons
2016
(3) SA 37 (CC).
[64]
Ibid
paras 25 and 27-30.
[65]
Ibid para 26.
[66]
Airports Company South
Africa v Big Five Duty Free (Pty) Ltd & others
2019 (2) BCLR 165 (CC).
[67]
Ibid para 13.
[68]
S v Naidoo
2012
(2) SACR 126 (WCC).
[69]
Also see
Naidoo v
Regional Magistrate, Durban & another
2017 (2) SACR 244 (KZP).
[70]
11
Lawsa
2
ed para 526.
[71]
See s
111 of the CPA read with
s 22(3)
of the
National Prosecuting
Authority Act 32 of 1998
. See also
S
v Ndzeku
1996 (1) SACR 301
(A). In addition, see
s 110
and
s 110A
of the CPA
in respect of offences committed outside the Republic of South
Africa.
[72]
The
applicants
in their replying affidavit consider the address of the State
advocate, Mr
Cloete
,
as an agreement on the issue of jurisdiction. See
s 32
application,
replying affidavit paras 22-28 and 30-31.
[73]
See
Moch
v Nedtravel (Pty) Ltd t/a American Express Travel Service
1996
(3) SA 1
(A) at 7E-G.
[74]
Bridon International
GmbH v International Trade Administration Commission & others
2013
(3) SA 197 (SCA).
[75]
See s
32
application at 5-6.
[76]
See “WC5” at 127 of the
s 32
application.
[77]
2014
(1) SACR 545
(CC) para 71.
[78]
See
Zuma
v Democratic Alliance & others
2018
(1) SACR 123
(SCA) para 91.
[79]
Key v
Attorney-General, Cape Provincial Division, & another
1996 (4) SA 187 (CC).
[80]
Ibid para 14.
[81]
Superior Courts Act 10 of 2013
.
[82]
This
relief was not argued at the hearing of the opposed motion.
[83]
Rizzuto c. R
2018
QCCS 582
(CanLII).
[84]
Ibid
para 37.
[85]
Smith v Jones
[1999]
1 SCR 455.
[86]
R v Bacon
2020
BCCA 140 (CanLII).
[87]
Smith v Jones supra
para 44.
[88]
Ibid para 51.
[89]
Attorney-General v
Leveller Magazine Ltd
[1979]
AC 440
at 450, see also
R
v Dover Justices, ex Parte Dover District Council and Wells
[1992] Crim LR 371
DC.
[90]
Transvaal Industrial
Foods Ltd vs BMM Process (Pty) Ltd
1973 (1) SA 627
(A) at 628E-H.
[91]
Supreme Court Act 59 of 1959.
[92]
Criminal Procedure Act 51 of 1977
.
[93]
Cerebos Food
Corporation Ltd vs Diverse Foods SA (Pty) Ltd and another
1984
(4) SA 149
(T) at 158H.
[94]
Financial Mail (Pty)
Ltd v Registrar of Insurance and others
1966
(2) SA 219 (W).
[95]
Ibid
at 221F-222E.
[96]
Economic Data
Processing (Pty) Ltd and others v Pentreath
1984 (2) SA 605 (W).
[97]
Ibid
at 607B-C.
[98]
Du Preez v Du Preez:
Standard Bank of South Africa intervening
1976
(1) SA 87 (W).
[99]
Ibid at
88A-D.
[100]
Economic Data
Processing (Pty) Ltd and others v Pentreath
supra
.
[101]
Ibid
at 607D-G.
[102]
S v Geiges and others
(
M
& G Media Ltd and others intervening)
2007
(2) SACR 507
(T) para 80.
[103]
Young and another v
Minister of Safety and Security and others
2005 (2) SACR 437 (SE).
[104]
Ibid para 18.
[105]
Cape Town City v South
African National Roads Authority and others,
2015 (3) SA 386
(SCA) para 14.
[106]
Attorney General (Nova
Scotia) v MacIntyre
[1982]
1 SCR 175
at 185.
[107]
S v Geiges and others
(
M
& G Media Ltd and others intervening) supra
para
80.