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[2007] ZASCA 129
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Mngomezulu and Another v National Director of Public Prosecutions and Another (338/06) [2007] ZASCA 129; 2008 (1) SACR 105 (SCA) (28 September 2007)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case number : 338/06
Reportable
In the matter between :
N Z MNGOMEZULU
...........................
FIRST
APPELLANT
V G NGCOBONDWANE
...........................
SECOND
APPELLANT
and
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
...........................
FIRST RESPONDENT
MINISTER OF SAFETY AND SECURITY
...........................
SECOND RESPONDENT
CORAM : CLOETE, VAN HEERDEN
et
COMBRINCK JJA
HEARD : 10 SEPTEMBER 2007
DELIVERED : 28 SEPTEMBER 2007
Summary: A direction granted ex parte in terms of the
Interception and Monitoring Prohibition Act 127 of 1992 is
provisional and subject
to reconsideration, but there must be a
legitimate purpose for its reconsideration. Where the purpose is to
protect fair trial rights
it is premature to seek, in advance of a
pending trial, to have the direction reconsidered with a view to
obtaining a declaratory
order that information obtained pursuant to
the direction, was unlawfully obtained.
Neutral citation: This judgment may be referred to as
Mngomezulu v NDPP
[2007]
SCA 129 (RSA).
_________________________________________________________
JUDGMENT
CLOETE JA
/
CLOETE JA
:
[1] The appellants were charged in the Wynberg Regional
Court (Transvaal) with contravening s 5(b), alternatively s 4(b), of
Act 140
of 1992 viz dealing in, or being in possession of, a
dangerous or undesirable dependence-producing substance
(methaqualone, commonly
known as mandrax). They have not yet pleaded
to the charges.
[2] The trial was due to commence on 20 June 2005.The
appellants’ attorney was furnished with a copy of the police
docket, from
which it appeared that a direction had been issued by a
judge in chambers in terms of s 2(2) of the Interception and
Monitoring Prohibition
Act.
1
The direction authorised the interception and monitoring
of any communication on specified telecommunication lines of, amongst
others,
the first appellant. The direction did not concern the second
appellant.
[3] On 30 May 2005 a copy of the application for the
direction was furnished to the attorney by the prosecutrix at the
former’s
request, but certain information had been deleted as,
according to the letter under cover of which the copy of the
application was
sent: ‘This information concerns ongoing
investigations and it cannot be disclosed at this stage.’ Some
of the deleted
information was subsequently furnished because,
according to the investigating officer, ‘the reasons that
initially necessitated
the deletion thereof are no longer
applicable’; the remainder was not. The nature of the
information that was still withheld
and the reasons for this appear
from the affidavit of the investigating officer:
‘
[T]he
aforesaid deleted portion contains names of seven persons or
individuals who are
currently
2
under investigation by the
West Organized Crime Unit for offences in terms of Act 140 of 1992 as
amended i.e dealing in dangerous
dependence-producing substances
and/or undesirable dependence-producing substances.
The reason for the
non-disclosure of the identities of the aforesaid seven persons is
that their disclosure would seriously compromise
police
investigations currently underway against them in that these
individuals would become aware that the police are investigating
them
and successfully cover their tracks or go into hiding. According to
my informant, these persons are known to First and Second
Respondent
[
sic
;
sc
“
Applicants”].’
[4] The appellants then brought motion proceedings in
the Johannesburg High Court in terms of a notice of motion dated 19
August 2005.
The relief sought was in two parts. The first part, part
A, which both appellants sought, was for an order directing the NDPP
(the
first respondent in the court
a quo
and on appeal), alternatively the Minister of Safety and
Security (the second respondent in the court
a
quo
and on appeal), to furnish them with a
full and unedited copy of all the documents placed before the judge
in chambers in support
of the application made in terms of the Act,
and leave to supplement the founding affidavit on receipt of those
documents. The second
part, part B, which only the first appellant
sought, was for an order setting aside the decision of the judge in
chambers and an
order directing that all telecommunications
monitored, recorded and transcribed pursuant to the judge’s
decision had been unlawfully
obtained.
[5] Section 2(2) of the Act provides that a judge may
direct that postal articles and communications may be intercepted and
that conversations
may be monitored. Section 3 deals with the issue
of the direction: subsections (1)(b)(i) and (ii) set out the
requirements which
must be satisfied for the direction to be issued;
subsection (4) allows the duration of the direction to be extended;
and subsection
(5) provides:
‘
An
application referred to in subsection (1)(b)(i) or (ii) or subsection
4 shall be heard and the direction issued without any notice
to the
person, body or organisation to which the application applies and
without hearing such person, body or organisation.’
[6] Masipa J in the court
a quo
found that an order contemplated in s 3(5) is a final
order, and that the section excludes any subsequent challenge
thereto. This
interpretation cannot be supported. An order granted
ex
parte
is usually regarded as provisional,
irrespective of its wording:
Pretoria Portland
Cement Co Ltd v Competition Commission
.
3
Section 3(5) must be interpreted as excluding a hearing
only at the time when the application is made and the direction
issued and
not as precluding a subsequent challenge to the validity
of the direction by way of an answering affidavit to the original
application.
Initial secrecy would be necessary in order not to
defeat the very purpose of the direction: a person who knows that his
or her telephone
line is going to be monitored would hardly make or
receive incriminating telephone calls. But there is no reason for
secrecy to be
maintained once the order has been executed or the
person concerned has become aware of its operation and wishes to
challenge its
validity. In terms of s 39(2) of the Constitution, it
is the interpretation which promotes the spirit, purport and objects
of the
Bill of Rights which must be preferred:
Investigating
Directorate: Serious Economic Offences v Hyundai Motor Distributors
(Pty) Ltd: In re Hyundai Motor Distributors (Pty)
Ltd v Smit NO
.
4
The interpretation placed on the section by the court
a
quo
altogether excludes the fair hearing
rights of persons affected by a direction whereas the other,
legitimate interpretation which
I have given merely limits them. The
latter interpretation is accordingly to be preferred.
5
[7] I turn to consider the allegations made in the
founding affidavit and the arguments advanced in support thereof. The
first appellant
said in the founding affidavit:
’
26.1
I am advised that I have a right, prior to my trial taking place, to
have access to all the information in the possession of
the State
relating to the charges against me. . . .
26.2 . . .
26.3 I am advised that I am entitled to a
full copy of the application in the form in which it was considered
by the judge who granted
the direction in terms of the Interception
and Monitoring Prohibition Act.
26.4 I am entitled to this in order
properly to prepare for my trial. It is not possible properly to
prepare for my trial and to consider
the contents of the application
for a direction unless I have been supplied with the full contents of
the application. . . .
26.5 The contents of the edited or
deleted portions are pivotal to an understanding of the full content
of the application. Any criticism
that I may have, or indeed that I
may not have, of the contents of the application may be changed
completely by a perusal of the
deleted portions. They may indicate
that the State had a good case for applying for the direction, or
they may indicate, by virtue
of their contents, that the State had no
basis to bring such an application. I cannot decide which unless I am
given access to the
edited or deleted portions.
26.6 I am advised, and I
believe, that an application under this Act for a direction is no
less an
ex parte
application
than any other application, be it one brought before the High Court
in the normal course, or be it one brought for a search
warrant such
as under the NPA Act or under the Criminal Procedure Act.
I
am advised, and accept, that in any circumstances where my rights to
privacy are invaded, or any rights at all are invaded, by means
of an
application brought to a judge in chambers, I am entitled to bring
the matter before a court once more for that court to decide
whether
the order should have been granted
.
6
In this instance it is the decision to grant a direction
under Section 2(2) of the Interception and Monitoring Prohibition Act
that
would fall for reconsideration.
26.7 I am advised by my attorneys that
the contents of the State’s docket reveal that very many
conversations were monitored,
purportedly or allegedly under the
auspices or power of the direction issued by the judge in chambers.
In the event that that direction
was lawfully issued, this may have
the consequence that the monitored telephone conversations may be
admissible in a court of law.
For example, admissible in the trial
which I am due to face.
26.8 On the other hand, if that order
should never have been granted and was therefore unlawfully obtained,
then it may well be that
a court will refuse to admit the fruits of
the unlawful action by the State, in this instance the unlawful
interception and monitoring
of telephone conversations. In order to
consider whether the direction was lawfully obtained, I am entitled
to consider, in full,
all of the documents placed before the judge in
chambers upon which the order was granted. This I cannot do where the
State had exercised
editing or deletion powers over the document.’
[8] The assertion in the founding affidavit that the
information still being withheld by the prosecutrix is necessary to
enable the
first appellant to prepare for trial was not pressed in
argument, and rightly so in view of the following passages which
appear respectively
in the first respondent’s answering
affidavit deposed to by the prosecutrix and the affidavit of the
investigating officer
deposed to on behalf of the second respondent:
The prosecutrix:
‘
7.
My view that the information requested is not reasonably required in
order to enable the defence to prepare for trial is premised
on the
fact that the deleted information comprises only names of individuals
who are not witnesses in the pending criminal case.
Further, these
individuals are still being investigated by the police and have
accordingly not made any statement to the police,
either
incriminatory or exculpatory to First and Second Applicant.
8. I further do not intend to use the
names of the aforesaid individuals in the prosecution of Applicants
in the pending criminal
case.’
The investigating officer:
’
26.
Further, I wish to clearly state that the aforesaid persons whose
names have been deleted . . . are not witnesses for the state.
As
already indicated the aforesaid persons have not been interviewed by
myself or any of my colleagues and I have thus no evidence
from these
individuals either implicating or favourable to First and Second
Applicants.’
[9] Counsel placed much stress in argument on that
portion of para 26.6 of the founding affidavit which I have
italicized in para
[7] above. The submission was that reconsideration
of the direction given by the judge in chambers in terms of the Act
might assist
the first appellant in the pending criminal trial if the
direction were to be set aside, and that the setting aside of the
direction
would be a necessary precursor to a civil claim for damages
for unlawful invasion of privacy ─ but that the first appellant
was, irrespective of these considerations, entitled as of right to
have the order reconsidered. I cannot agree with this latter
submission.
[10] It does not follow from the fact that a person’s
rights have been invaded in consequence of an order granted
ex
parte
, that such person is without more
entitled to have the order reconsidered. Reconsideration of the order
is not an end in itself.
Nor is it to be had simply for the asking. A
court will not be detained by an academic exercise. Such
reconsideration must be for
a legitimate purpose, namely, to enforce
a right by, for example, a claim for damages, return of documents
seized or some other relief
which would or might flow from the
reconsideration. And if the relief is not competent, reconsideration
of the order would serve
no purpose.
[11] I am unable to identify in the founding affidavit
any purpose for the reconsideration of the order save to protect the
first
appellant’s right to a fair trial. The passage italicized
was made in the context of the protection of that right. The relief
sought cannot be granted on the basis that the first appellant might
perhaps wish to bring (unspecified) civil proceedings to vindicate
his rights to privacy or some other (unspecified) right should a
reconsideration of the direction result in a finding that his rights
were invaded unlawfully: the first appellant himself has not said
that he is contemplating civil proceedings. The argument advanced
on
his behalf that he might bring such proceedings is accordingly
without factual foundation.
[12] It is clear from the notice of motion that the
first appellant seeks the information that has been withheld with a
view to obtaining
an order setting the direction aside; and it is
equally clear from the founding affidavit that his purpose in doing
so is to protect
his fair trial rights in the pending criminal trial.
There are several decisions of this court which hold that, save in an
exceptional
case, a court will not issue a declaratory order
affecting criminal proceedings: see eg
Attorney-General,
Natal v Johnstone & Co Ltd
;
7
Wahlhaus v Additional Magistrate, Johannesburg
;
8
Ismail v Additional Magistrate, Wynberg
9
and cf
S v Mhlungu
,
10
S v Western Areas Ltd
11
and
S v Friedman (2)
.
12
The decision of the majority of the Constitutional Court
in
Ferreira v Levin NO
;
Vryenhoek v Powell NO
13
is distinguishable. In that matter the appellant faced a
choice between answering self-incriminating questions at an
insolvency enquiry,
with the risk that his answers could be used
against him were he subsequently to be prosecuted, or refusing to
answer the questions
and risk being prosecuted for his refusal.
Unlike the present case, the appellants’ rights were under real
and immediate threat.
14
The position which applies in a case such as the present
appears from the following quotation from
Wahlhaus
:
15
‘
The present case has no
special features and cannot rightly be brought within the ambit of
the
Johnstone &
Co
decision
supra
.
Apart from the fact that the petition neither referred to, nor sought
any relief by way of, a declaration of rights, it is clear
that the
present would not be a suitable case for the granting of the very
special relief entailed in the Court’s exercising
its
discretion under s 102 of Act 46 of 1935
16
to make a declaratory order in
relation to a criminal case. The appellants are alleged to have
committed a crime. The normal method
of determining the correctness,
or otherwise, of that allegation is by way of the full investigation
of a criminal trial. There is
a total absence of any of the types of
consideration which induced this Court to make a declaratory order in
the
Johnstone
case
supra
.
Nor, indeed, does the case even contain any law point which, if
resolved in appellants’ favour, would dispose of the criminal
charge, or a substantial portion of it.’
[13] The present is not an exceptional case. There is no
reason to believe that an order declaring that any evidence obtained
pursuant
to the direction was unlawfully obtained, would curtail the
trial ─ the first appellant has not even alleged that there is
a likelihood that such evidence will be tendered. If it is, then that
will be the time for its admissibility to be attacked. It will
be for
the magistrate to decide whether the evidence was unconstitutionally
obtained. If he does come to that conclusion, that will
also not
necessarily be an end of the matter for it will then be for him to
decide whether the evidence should be excluded in terms
of s 35(5) of
the Constitution:
17
Ferreira v Levin NO
;
Vryenhoek v Powell NO
;
18
Key v Attorney-General, Cape Provincial Division
;
19
S v Dlamini
;
S
v Dladla
;
S v Joubert
;
S v Schietekat
.
20
[14] Nor can it be argued that the appellants require an
unedited copy of the application placed before the judge in chambers
to enable
them to prepare for trial in case the State should seek to
rely on evidence obtained pursuant to the direction. That application
can be made when and if it is established that the State will indeed
seek to rely on such evidence and it should in any event be
directed
to the trial court.
[15] In the circumstances the first appellant has not
made out a case for the relief sought by him. The order made by the
court
a quo
, albeit
for reasons which cannot be supported on appeal, must therefore
stand.
[16] The second appellant’s application for
disclosure of the names which have been deleted may be disposed of
shortly. He said,
in his replying affidavit:
‘
My
interest in this application is to demonstrate, from my perspective,
that the South African Police Services or any other law enforcement
agency at no time had any suspicion that I was involved together with
the First Applicant, or together with any other person in any
criminal conduct whatsoever, and, in particular, in the alleged drug
dealing offences with which I and the First Applicant are charged.
.
. . [T]he revelation of [the information withheld] will most
certainly not refer in any way to me. Thus, in my trial, and in due
course, I will be able to demonstrate, as corroboration for my
defence of non-involvement in any drug dealing, that the South
African
Police Services at no time suspected me or linked me with any
one allegedly involved in drug dealing and in particular with
anything
that is alleged against the First Applicant.’
The reasoning is fallacious. It does not follow that
because the second respondent’s name does not appear on the
list of alleged
drug dealers which the State seeks to withhold, that
the SAPS did not suspect he was involved in drug dealing or that the
absence
of his name from that list would ‘corroborate’
his defence of non-involvement in drug dealing. The proposition
advanced
on behalf of the second appellant in argument ─ that
‘he is entitled to all the information in the possession of the
State for the purposes of preparing for his criminal trial’ ─
is far too widely stated and is not the effect of
Shabalala
v Attorney-General Transvaal
,
21
the case which was prayed in aid of the proposition.
What Mahomed DP said in that case was:
‘
The
basic test in the present matter must be whether the right to a fair
trial in terms of s 25(3)
22
includes the right to have
access to a police docket or the relevant part thereof. This is not a
question which can be answered in
the abstract. It is essentially a
question to be answered having regard to the particular circumstances
of each case.’
23
[17] That brings me to the question of costs. The second
appellant has been entirely unsuccessful on appeal and there is no
reason
why costs should not follow the result. The first appellant on
the other hand has succeeded on appeal to the extent that the ratio
of the court
a quo
has
been overruled on appeal, which could have future significance if the
trial magistrate is called upon to consider whether evidence
tendered
by the State was obtained unlawfully. But had the first appellant not
brought the application ─ and he ought not to
have done so ─
he would not have been faced with an adverse judgment, so the costs
of the appeal necessary to overrule that
judgment can fairly be laid
at his door. The respondents did not seek to support it. On the
separate issue, whether the information
withheld should be disclosed
to him, he has failed. So far as the costs in the court
a
quo
are concerned, first appellant’s
counsel submitted that the first appellant had been partially
successful in that he had obtained
some information which was
withheld until the answering affidavit was filed. It was not
suggested that that information was of any
use save to attack the
validity of the direction; and the first appellant’s attempt to
do so has failed. In the circumstances
I see no reason to disturb the
costs order made by the court
a quo
.
[18] The appeals are dismissed, with costs.
______________
T D CLOETE
JUDGE OF APPEAL
Concur: Combrinck JA
[19] I have had the privilege of reading the judgment of
Cloete JA. I agree with his reasoning and conclusions, save for one
reservation
─ the inclusion of para [10]. In my view, for the
reasons appearing in paras [11] and [12] of his judgment, the first
appellant’s
rather belated claim to the right of privacy, as
distinct from its assertion in relation to his fair trial right, was
resorted to
merely as a stratagem to overcome the legitimate refusal
by the State to disclose privileged information. To my mind, that in
effect
is the end of the enquiry.
________________
B J VAN HEERDEN
JUDGE OF APPEAL
1
127
of 1992. The whole of this Act has been repealed by s 62(1) of the
Regulation of Interception of Communications and Provision
of
Communications ─ related Information Act 70 of 2002. Section
62(1) will come into operation on a date to be fixed by the
President by proclamation in the
Gazette
as will the transitional provisions in
ss (2) to (5).
2
Emphasis
in the original.
3
2003
(2) SA 385
(SCA) paras 45-47.
4
[2000] ZACC 12
;
2001
(1) SA 545
(CC) paras 21-26.
5
See
also
National Director of Public
Prosecutions v Mohamed NO
[2003] ZACC 4
;
2003 (1)
SACR 561
(CC) paras 33-52.
6
Emphasis
supplied.
7
1946
AD 256.
8
1959
(3) SA 113
(A).
9
1963
(1) SA 1
(A).
10
[1995] ZACC 4
;
1995
(3) SA 867
(CC) para 59 at 895F, the minority judgment of Kentridge
AJ.
11
2005
(5) SA 214
(SCA).
12
1996
(1) SACR 196
(W) which refers to decisions in Canada.
13
1996
(1) SA 984
(CC).
14
See
the remarks by Chaskalson P in para 163, and contrast the views
expressed in the minority judgments of Ackermann J, para 41;
Kriegler J, paras 198-9 and 206; and Sachs J, para 248.
15
At
118H-119B.
16
Which
corresponds to the present s 19(1)(a)(iii) of the Supreme Court Act
59 of 1959, viz ‘A provincial or local division
. . . shall .
. . have power ─
(iii) in its discretion, and at the instance of any interested
person, to enquire into and determine any existing, future or
contingent
right or obligation, notwithstanding that such person
cannot claim any relief consequential upon the determination.’
17
‘
Evidence
obtained in any manner that violates any right in the Bill of Rights
must be excluded if the admission of that evidence
would render the
trial unfair or otherwise be detrimental to the administration of
justice.’
18
Above,
n 13, para 153.
19
[1996] ZACC 25
;
1996
(4) SA 187
(CC) para 13.
20
[1999] ZACC 8
;
1999
(4) SA 623
(CC) para 98.
21
[1995] ZACC 12
;
1996
(1) SA 725
(CC).
22
Of
the Interim Constitution, Act 200 of 1993; see now s 35(3) of the
Constitution.
23
Para
36.