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[2007] ZASCA 137
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National Director of Public Prosecutions and Others v Zuma and Another (639/06) [2007] ZASCA 137; [2008] 1 All SA 197 (SCA); 2008 (1) SACR 298 (SCA) (8 November 2007)
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REPUBLIC OF SOUTH AFRICA
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case
number:
639/06
Reportable
In the matter between:
THE
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS ...........................
FIRST APPELLANT
INVESTIGATION
DIRECTOR: DIRECTORATE OF SPECIAL OPERATIONS
........................... SECOND APPELLANT
INVESTIGATION
DIRECTOR: INVESTIGATING DIRECTORATE (SERIOUS ECONOMIC OFFENCES)
........................... THIRD APPELLANT
INVESTIGATING
DIRECTOR: INVESTIGATING DIRECTORATE (CORRUPTION)
........................... FOURTH APPELLANT
DIRECTOR
OF PUBLIC PROSECUTIONS (DURBAN AND COAST LOCAL DIVISION)
........................... FIFTH APPELLANT
and
JACOB
GEDLEYIHLEKISA ZUMA ........................... FIRST RESPONDENT
MICHAEL
HULLEY ........................... SECOND RESPONDENT
CORAM
:
FARLAM, NUGENT, CLOETE, PONNAN et MLAMBO JJA
HEARD
:
28 AUGUST 2007
DELIVERED
:
8 NOVEMBER 2007
SUMMARY:
Search and
seizure – search warrant – validity of – warrants
issued in terms of s 29 of National Prosecuting Authority
Act 32 of
1989 – whether references to suspected offences inappropriately
vague.
ORDER
OF COURT SET OUT IN PARA 109 IN JUDGMENT OF NUGENT JA.
Neutral
citation:
This
judgment may be referred to as
The
National Director of Public Prosecutions v Zuma
[2007] SCA
137 (RSA).
___________________________________________________________
JUDGMENT
___________________________________________________________
FARLAM JA
INTRODUCTION
[1]
This is an appeal against a judgment of Hurt J, sitting in the Durban
High Court, in which he declared five search warrants invalid
and the
searches pursuant to them unlawful and ordered the appellants to
return to the respondents all items seized under them together
with
all copies that had been made and to pay the costs of the
application.
[2]
Hurt J’s judgment has been reported: see
Zuma
v National Director of Public Prosecutions
2006
(1) SACR 468
(D).
PARTIES
[3]
The appellants, who were the respondents in the court below, are the
National Director of Public Prosecutions (first appellant),
the
Investigating Director of the Directorate of Special Operations
(second appellant), the Investigating Director of the Investigating
Directorate: Serious Economic Offences (third appellant), the
Investigating Director of the Investigating Directorate: Corruption
(fourth appellant) and the Director of Public Prosecutions for the
Durban and Coast Local Division of the High Court (fifth appellant).
[4]
The respondents, who were the applicants in the court below, are Mr
Jacob Zuma (first respondent) and Mr Michael Hulley, who has
been
acting as Mr Zuma’s attorney in regard to criminal charges
which were brought against him in June 2005 (second respondent).
RELEVANT STATUTORY
PROVISIONS
[5] It
is appropriate before the facts in this matter are considered to set
out the relevant statutory provisions. They are contained
in
ss 28
and
29
of the
National Prosecuting Authority Act 32 of 1998
, as
amended, which, as far as is material, provide as follows:
‘
28 (1) (a)
If the Investigating Director
has
reason to suspect that a special offence
has
been or is being committed or that an attempt has been or is being
made to commit such an offence, he or she may conduct an
investigation
on
the matter in question, whether or not it has been reported to him or
her in terms of
section 27.
(b) If the National
Director
refers
a matter in relation to the alleged commission or attempted
commission of a specified offence to the Investigating Director,
the Investigating
Director
shall
conduct an investigation, or a preparatory investigation as referred
to in subsection (13), on that matter.
(c) If the
Investigating Director,
at
any time during the conducting of an investigation on a matter
referred to in paragraph
(a)
or
(b),
considers
it desirable to do so in the interest of the administration of
justice or in the public interest, he or she may extend the
investigation so as to include any offence, whether or not it is a
specified offence,
which
he or she suspects to be connected with the subject of the
investigation.
. . .
29 (1) The Investigating Director or
any person authorised thereto by him or her in writing may, subject
to this section, for the
purposes of an investigation at any
reasonable time and without prior notice or with such notice as he or
she may deem appropriate,
enter any premises on or in which anything
connected with that investigation is or is suspected to be, and may-
(a) inspect and search those premises,
and there make such enquiries as he or she may deem necessary;
(b) examine any object found on or in
the premises which has a bearing or might have a bearing on the
investigation in question, and
request from the owner or person in
charge of the premises or from any person in whose possession or
charge that object is, information
regarding that object;
(c) make copies of or take extracts
from any book or document found on or in the premises which has a
bearing or might have a bearing
on the investigation in question, and
request from any person suspected of having the necessary
information, an explanation of any
entry therein;
(d) seize, against the issue of a
receipt, anything on or in the premises which has a bearing or might
have a bearing on the investigation
in question, or if he or she
wishes to retain it for further examination or for safe custody:
Provided that any person from whom
a book or document has been taken
under this section may, as long as it is in the possession of the
Investigating Director, at his
or her request be allowed, at his or
her own expense and under the supervision of the Investigating
Director, to make copies thereof
or to take extracts therefrom at any
reasonable time.
(2) Any entry upon or search of any
premises in terms of this section shall be conducted with strict
regard to decency and order,
including-
(a) a person's right to, respect for
and the protection of his or her dignity;
(b) the right of a person to freedom
and security; and
(c) the right of a person to his or
her personal privacy.
. . .
(4) Subject to subsection (10), the
premises referred to in subsection (1) may only be entered, and the
acts referred to in subsection
(1) may only be performed, by virtue
of a warrant issued in chambers by a magistrate, regional magistrate
or judge of the area of
jurisdiction within which the premises is
situated: Provided that such a warrant may be issued by a judge in
respect of premises
situated in another area of jurisdiction, if he
or she deems it justified.
(5) A warrant contemplated in
subsection (4) may only be issued if it appears to the magistrate,
regional magistrate or judge from
information on oath or affirmation,
stating-
(a) the nature of the investigation in
terms of
section 28
;
(b) that there exists a reasonable
suspicion that an offence, which might be a specified offence, has
been or is being committed,
or that an attempt was or had been made
to commit such an offence; and
(c) the need, in regard to the
investigation, for a search and seizure in terms of this section,
that there are reasonable grounds for
believing that anything referred to in subsection (1) is on or in
such premises or suspected
to be on or in such premises.
. . .
(9) Any person executing a warrant in
terms of this section shall immediately before commencing with the
execution-
(a) identify himself or herself to the
person in control of the premises, if such person is present, and
hand to such person a copy
of the warrant or, if such person is not
present, affix such copy to a prominent place on the premises;
(b) supply such person at his or her
request with particulars regarding his or her authority to execute
such a warrant.
(10) (a) The Investigating Director or
any person referred to in
section 7
(4) (a) may without a warrant
enter upon any premises and perform the acts referred to in
subsection (1)-
(i) if the person who is competent to
do so consents to such entry, search, seizure and removal; or
(ii) if he or she upon reasonable
grounds believes that-
(aa) the required warrant will be
issued to him or her in terms of subsection (4) if he or she were to
apply for such warrant; and
(bb) the delay caused by the obtaining
of any such warrant would defeat the object of the entry, search,
seizure and removal.
(b) Any entry and search in terms of
paragraph (a) shall be executed by day, unless the execution thereof
by night is justifiable
and necessary, and the person exercising the
powers referred to in the said paragraph shall identify himself or
herself at the request
of the owner or the person in control of the
premises.
(11) If during the execution of a
warrant or the conducting of a search in terms of this section, a
person claims that any item found
on or in the premises concerned
contains privileged information and for that reason refuses the
inspection or removal of such item,
the person executing the warrant
or conducting the search shall, if he or she is of the opinion that
the item contains information
which is relevant to the investigation
and that such information is necessary for the investigation, request
the registrar of the
High Court which has jurisdiction or his or her
delegate, to seize and remove that item for safe custody until a
court of law has
made a ruling on the question whether the
information concerned is privileged or not.’
[6] In
Investigating
Directorate: Serious Economic Offences v Hyundai Motor Distributors
(Pty) Ltd: in re Hyundai Motor Distributors (Pty)
Ltd v Smit NO,
[2000] ZACC 12
;
2001
(1) SA 545
(CC) the Constitutional Court held,
inter
alia,
that
s 29
(5) of the
National Prosecuting Authority Act (which
I shall
call in what follows ‘the Act’) is not inconsistent with
the Constitution.
FACTS
[7] On
11 August 2005 Mr Johan du Plooy, a senior special investigator
employed at the Directorate of Special Operations, established
by s 7
of the Act, made an affidavit in support of an application for 21
search warrants to be issued in terms of s 29(5) and 29(6)
of the
Act. On 12 August 2005 an application was made in chambers in terms
of s 29(4) of the Act to Ngoepe JP in the Pretoria High
Court, for
the issue of the warrants sought in Mr du Plooy’s affidavit and
on the same day the learned judge president authorised
the issue of
the majority of warrants sought after requiring a modification to the
wording of the drafts submitted to him so that
the offences which
were the subject of the investigation were stated.
[8] On the morning of 18
August 2005 the warrants authorised by Ngoepe JP were executed
simultaneously at premises throughout the
country by some 250 members
of the Directorate of Special Operations of the National Prosecuting
Authority and approximately 93 000
documents were seized. The purpose
of the searches was to obtain further evidence for use by the
prosecution in the criminal proceedings
on charges of corruption then
pending against Mr Zuma and for use in possible criminal proceedings
against two companies, Thint (Pty)
Ltd and Thint Holdings (Southern
Africa) (Pty) Ltd.
[9] A short time after
the searches took place these two companies were indicted to stand
trial as co-accused with Mr Zuma in the
Pietermaritzburg High Court.
[10]
Proceedings were instituted in the Johannesburg High Court on 26
August 2005 by Ms J Mahomed, an attorney practising in Gauteng,
who
had acted as the legal advisor and representative of Mr Zuma, for an
order setting aside two of the warrants authorised by Ngoepe
JP,
declaring the searches and seizures carried out in execution of the
warrants to be unlawful and directing
inter
alia
that
all her property seized under the warrants be returned. On 9
September 2005 Hussain J granted Ms Mohamed the relief she sought.
His judgment, which has been reported as
Mahomed
v National Director of Public Prosecutions and Others
[2005] ZAGPHC 90
;
2006
(1) SACR 495(W)
, has also been the subject of an appeal before us, in
which the judgment is being delivered simultaneously with this one.
[11]
On 6 October 2005 Mr Zuma and Mr Hulley brought this application
seeking relief in respect of seven of the warrants authorised
by
Ngoepe JP. The attacks on two of the warrants became moot and no
order was made in respect of them.
[12] On 5 January 2006
Thint (Pty) Ltd and its director Mr Pierre Moynot brought an
application in the Pretoria High Court for relief
similar to that
sought in the present case in respect of warrants issued by Ngoepe JP
authorising searches and seizures at the company’s
office and
at the residence of Mr and Mrs Moynot, both in Pretoria. The
respondents were the first and second appellants in the present
matter and Mr du Plooy, who had deposed to the affidavit on which the
application for the warrants was founded. The respondents conceded
the relief sought in respect of the warrant issued authorising the
searches and seizures at the residence of Mr and Mrs Moynot but
opposed the application in respect of the searches and seizures
effected at the office of Thint (Pty) Ltd. The application so limited
failed. Du Plessis J, who heard it, held that the warrant was valid
and the searches and seizures effected under it were valid. Thint
(Pty) Ltd and Mr Moynot have appealed against his judgment and the
judgment on their appeal is also being delivered simultaneously
with
this one.
[13]
The five warrants in regard to which the application succeeded
related to searches of the following premises:
(a) Mr Zuma’s flat
in Killarney, Johannesburg, which was occupied when the warrant was
executed by two of his sons, his daughter
and the wife of one of his
sons;
(b) Mr Zuma’s
residence at the Nkandla Traditional Village in the district of
Nkandla in KwaZulu-Natal;
(c) Mr Zuma’s
former office at the Union Buildings, Pretoria;
(d) Mr Zuma’s
former offices at Momentum House, Ordinance Road, Durban; and
(e) Mr Hulley’s
offices in Durban.
[14]
The five warrants authorised by Ngoepe JP which are relevant in the
present case were, except for the particulars relating to
the
premises to be searched, in identical terms. They read as follows:
SEARCH WARRANT
(Section 29(5)
of the
National
Prosecuting Authority Act, No. 32 of 1998
)
TO: The Investigating Director:
Directorate of Special Operations or any person
Authorised by him/her in writing
WHEREAS it appears to me from
information on oath setting out the nature of the investigation, that
there exists a reasonable suspicion
that an offence/offences has/have
been or is/are being committed, to wit, Corruption in contravention
of Act 94 of 1992, Fraud, Money
Laundering in contravention of Act
121 of 1998 and/or the commission of tax offences in contravention of
Act 58 of 1962, or that
an attempt was or had been made to commit
such an offence/offences, and the need, in regard to the
investigation, being an investigation
into allegations of corruption,
fraud, money laundering and/or the commission of tax offences, for a
search and seizure in terms
of the above-mentioned section, of any
object as per Annexure A, which has a bearing or might have a
bearing, on the investigation
in question.
AND WHEREAS it appears to me from the
said information on oath that there are reasonable grounds for
believing that an object(s) having
a bearing or which might have a
bearing on, or is/are connected with the investigation, is (are) on
or in the premises or suspected
to be on or in the premises of
. . .
YOU ARE HEREBY AUTHORISED to enter the
said premises during the daytime and there to inspect and search and
make such enquiries that
you may deem necessary, examine any object
found on or in the premises which has a bearing or might have a
bearing on the investigation
in question and, against the issue of a
receipt, to seize anything on or in the premises which has a bearing
or might have a bearing
on the investigation, or if you wish, to
retain it for further investigation or for safe custody, (including
inspection, searching
and seizing computer-related objects in the
manner authorized in Annexure B) and to remain on the said premises
and to complete the
abovementioned inspection, search, enquiries,
examination and seizure during the nighttime if necessary.’
[15]
Annexure A, to which reference is made in the first paragraph of the
preamble of all the warrants, was also in identical terms
in the case
of each warrant except in the case of the warrant authorised in
respect of the offices of the second respondent, Mr Hulley,
which I
shall deal with presently. It contained twenty-three numbered
paragraphs which followed the wording of paragraphs 2 to 24
of
Annexure A to the warrants authorised for the search at the residence
and offices of Ms Mahomed which formed the subject matter
of the
application heard by Hussain J in the Johannesburg High Court and
which are printed in full at pages 514 to 517 and 519 to
522 of the
report of his judgment.
[16]
The copy of Annexure A annexed to the warrant authorising the search
of the offices of the second respondent had only two paragraphs.
The
first paragraph read as follows:
‘
Any records
of whatever nature that Hulley and Associates received from Schabir
Shaik and any of the Nkobi entities or any other source
in
approximately July 2005 concerning the affairs of Jacob Zuma, and
specifically records kept or compiled by Schabir Shaik in his
capacity as financial adviser to Jacob Zuma.’
[17]
The wording of the second paragraph followed the wording of the
twenty third paragraph of Annexure A in the other warrants under
consideration in this case and the twenty fourth paragraph of that
Annexure in the two warrants printed at the end of Hussain J’s
judgment to which I have referred. Hurt J described it as a
‘catch-all paragraph’. It read as follows:
‘
In general
any record or financial records of whatever nature, including
ledgers, cash books, company registers, share registers,
share
certificates, bank documents, notes, minutes of meetings, diary
entries, records of telephone conversations and any other
correspondence,
e mails, faxes, documentation, or electronic computer
data which have a bearing or might have a bearing on the
investigation. Electronic
computer data includes computers, laptops,
stiffies, hard drives, compact discs, data cartridges, backups,
electronic devices and
any other form in which electronic information
can be stored or saved. Records of telephone conversations include
cell phone data
stored in any cell phones.’
[18]
Annexure B, to which reference was made in the authorising paragraph
of all the warrants, was identically worded in each case.
It read as
follows:
‘
1. Making
two mirror images (complete disc copies) of computers, laptops
notebooks or hard drives, or any other electronic device
on which
information can be stored or saved, such as stiffies, compact discs
and floppies.
2. Making digital images of any of the
above for identification purposes.
3. Seizing computer hardware and
software components and computer manuals necessary to facilitate
forensic analysis.
4. Thereafter, and
at a location removed from the premises, conducting searches by way
of forensic analysis to identify and retrieve
all information which
has a bearing, or might have a bearing, on the investigation in
question.’
[19]
There was a dispute on the affidavits as to what happened when the
warrant authorised in respect of the second respondent’s
offices was executed. Hurt J (at 489 b) relied only on the evidence
given by the deponents for the appellants. (In doing so he was
in my
view correct, as the rule in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984
(3) SA 623
(A) clearly applies, at least as far as disputes of fact
relating to the execution of the warrants is concerned: whether it
also
applies in respect of disputes relevant to the authorisation of
the warrants need not now be considered.)
[20]
According to the version relied on by the learned judge Mr Johannes
van Loggerenberg, a senior special investigator employed
at the
Directorate of Special Operations, who was the leader of the team
which executed the search warrant at the second respondent’s
offices, arrived at the offices with a team of seven searchers before
the second respondent did. When the second respondent arrived,
Mr van
Loggerenberg gave him a copy of the warrant which he read. He then
informed Mr van Loggerenberg and his team that he could
assist them
by pointing out the documents he had received relating to the first
respondent. (The reference was clearly to the documents
referred to
in the first paragraph of Annexure A to the warrant which he had
read.) Mr van Loggerenberg followed the second respondent
to his
filing office where he pointed out two file boxes (which were still
unopened), on the side of each of which was a foolscap
page
reflecting the contents of each box. With the agreement of Mr van
Loggerenberg the second respondent made copies of the inventories
of
each box. The boxes were seized and the second respondent was given a
receipt for them. Some time thereafter the second respondent,
who had
been telephoned by the first respondent and told of the searches in
Johannesburg and Nkandla, left for the airport en route
to
Johannesburg. On his way to the airport he telephoned Mr Anton
Steynberg, a Deputy Director of Public Prosecutions, stationed
at the
regional office of the Directorate of Special Operations,
KwaZulu-Natal, and told him that he wanted to challenge the
lawfulness
of the searches and that for that purpose he needed a copy
of Mr du Plooy’s affidavit pursuant to which the warrants had
been
obtained. After contacting his leader, Mr WJ Downer SC, who was
in charge of the investigation, Mr Steynberg reverted to the second
respondent and told him that he could obtain a copy of the affidavit
from the registrar of the Pretoria High Court. The second respondent
then asked whether all the documents seized could be sealed and
lodged with the registrar of the High Court until the lawfulness
of
the search had been determined. Mr Steynberg’s response was
that he would check with Mr Downer but that the law did not
make
provision for documents to be lodged with the registrar in such
circumstances. He then spoke to Mr Downer, who agreed with his
approach. When he next spoke to the second respondent, who by this
time had arrived in Johannesburg, Mr Steynberg told him what Mr
Downer had said and suggested that he contact him. Thereafter the
second respondent telephoned Mr Downer and requested him to stop
the
search until he had a copy of Mr du Plooy’s affidavit and had
had an opportunity to apply for a court order declaring the
search of
his offices unlawful. Mr Downer declined this request. He stated in
his affidavit that the second respondent made no other
request of him
and did not claim privilege in respect of any of the documentation
which had been in his possession. ‘All he
did’, said Mr
Downer, ‘was to ask me what would happen if any documents were
privileged and I said to him that he must
decide which documents he
considered to be privileged.’ Mr Downer also said to the second
respondent that it did not seem to
him that any of them could be
privileged because they emanated from Mr Shaik’s attorney, Mr
Parsee, according to whom they
consisted of financial records.
[21]
Later that day the second respondent spoke to Mr George Baloyi, a
Deputy Director of Public Prosecutions attached to the office
of the
Director of Public Prosecutions, Pretoria. He asked Mr Baloyi to
agree to his proposal that the papers seized at his offices
be
deposited with the registrar. He stated that he needed time to peruse
the papers, consult with counsel and then make a decision
whether to
challenge the legality of the search warrants. ‘His request
was’, said Mr Baloyi, ‘that pending such
a decision, the
documents be deposited with the registrar.’ Mr Baloyi told the
second respondent that he would discuss the
matter with Mr Downer.
[22]
The next morning the second respondent received a copy of Mr du
Plooy’s affidavit from Mr Baloyi, who told him that his
request
could not be acceded to. That afternoon the second respondent sent a
telefax to Mr Steynberg in which he stated his view:
(1) that ‘a certain
privilege attaches to the entire body of documents seized’ from
his offices; and
(2) that in terms of the
Act the ‘documents ought to be lodged with the Registrar in
these circumstances’.
[23]
Mr Steynberg replied as follows on 22 August 2005:
‘
The search
and seizure operation conducted at your offices on 18 August and our
subsequent telephone conversations refer.
I am informed by the DSO [Directorate
of Special Operations] members who conducted the search that you
pointed out to them the documents
described in the search warrant,
namely the financial documents relating to Mr Zuma that were
forwarded to you by his former financial
manager, Mr Schabir Shaik,
via his attorney Mr Reeves Parsee. No other documents were read or
seized by the DSO members, nor were
your offices physically searched.
I am informed further that at no stage
did you or any of your staff indicate to the members present that the
documents seized were,
or might be, privileged.
In the abovementioned circumstances,
we are of the view that such documents constitute evidentiary
material that is highly relevant
to the current investigation and
that no legal privilege attaches to such documents.
We are therefore of the view that
there is no reason in law why these documents should be handed to the
registrar for safekeeping
and accordingly we decline to do so.’
DECISION
OF COURT
A
QUO
[24]
Hurt J’s decision in favour of the respondents was based on
three separate grounds. The first ground was that the appellants
had
not shown, as s 29(5)(c) required, that there was a need for a search
and seizure in terms of the section. This was because the
material
put before Ngoepe JP did not contain a persuasive explanation of the
necessity to invoke the provisions of the section.
[25]
He expressed the view that it was ‘open to considerable doubt’
whether the additional evidence sought was needed
by the authorities
for the purposes of their investigation. In any event, he held, even
if the evidence was necessary, it had not
been established that it
could not be obtained by invoking the provisions of s 28.
[26]
The
second ground on which Hurt J’s judgment was based was that the
warrants were unduly vague in two respects.
[27]
The first was that they did not describe the suspected offences under
investigation with sufficient particularity. He referred
in this
regard to the
dictum
of
this court in
Powell
NO v Van der Merwe NO
2005
(5) SA 62
(SCA) in para 59 (d) and (e) that ‘a warrant must
convey intelligibly to both searcher and searched the ambit of the
search
it authorises’ and that ‘(i)t is no cure for an
overbroad warrant to say that the subject of the search knew or ought
to have known what was being looked for: the warrant must itself
specify its object, and must do so intelligibly and narrowly within
the bounds of the empowering statute.’
He continued (at 487b-f):
‘
I consider
that the precept in
Powell’s
case,
requiring the warrant to convey the ambit of the search
“intelligibly”, includes a requirement that the person to
be searched must be given information as to approximately when the
suspected offences have been committed and who is suspected of
having
committed them. It should be noted, as I have indicated earlier, that
the warrants in this case are in the form of a notification
by the
authorising, judicial officer that it “appears to (him/her)
from information on oath” that the reasonable suspicion
exists.
The information on oath which was submitted to obtain authorisation
for these warrants was that the suspected corruption
arose from
conduct, up to 2002, between the first applicant and Mr Shaik, that
the suspected money laundering occurred over a similar
period and
that the fraud and tax offences related to non-disclosure in
declarations required by statute. There was also, of course,
the
vague suggestion of a suspicion that corrupt activities may have
continued beyond 2002. Without including those limits in the
warrants, it would be impossible for the person on the receiving end
of their execution to know what the searchers might reasonably
be
entitled to look for. I accordingly hold the view that the references
to the suspected offences in the warrants are inappropriately
vague
and that the warrants are all invalid on that ground.’
[28]
The second respect in which it was held that the warrants were unduly
vague was based on the ‘catch-all paragraph’,
which, in
effect, so he held, constituted ‘authority to search an accused
person’s premises “to find anything that
[would] help
[the appellants] in the prosecution”.’ He held further
that the ‘catch-all paragraph’ in each
of the warrants
was not severable from the rest of the warrants because the
authorities relied on in support of the severance argument
(
Cine
Films (Pty) Ltd v Commissioner of Police
1972
(2) SA 254
(A) at 268 and
Divisional
Commissioner of SA Police, Witwatersrand Area, v SA Associated
Newspapers Ltd
1966
(2) SA 503
(A) at 513 A-B) predated the Constitution and
constitutional considerations now prevent the warrants in this case
being pruned down
to acceptable limits
ex
post facto.
[29]
The third ground on which the judgment was based involved a finding
that the second appellant should have been aware that attorney-client
privilege might be jeopardised in the course of the search of the
second respondent’s offices, which could have resulted not
only
in prejudice to the respondents but also in a violation of the first
respondent’s fair trial rights. This could have been
prevented
either by referring in the warrant to the provisions of s 29(11) or
by bringing these provisions to the attention of the
second
respondent when the warrant was served on him.
[30]
In the course of his judgment Hurt J also considered and rejected a
submission advanced before him by counsel for the respondents,
which
was repeated in argument in this court, to the effect that the powers
conferred by s 29 can only be used against a person suspected
of
having committed a crime or crimes
before
he
or she becomes an accused.
[31]
Hurt J assumed in his judgment that the formal steps required to be
followed by the appellants to obtain and thereafter execute
the
warrants complied with the statutory requirements. He accordingly
made no finding on a number of issues raised in this regard
on the
papers by the respondents.
[32]
In this court counsel for the respondents once again raised the
contentions which Hurt J had assumed, without deciding, were
not
correct.
DISCUSSION:
THE VALIDITY OF THE
WARRANTS
[33]
As appears from the summary of Hurt J’s judgment I have given,
his finding that the warrants under consideration in this
case were
invalid because they were, as he put it, ‘inappropriately
vague’ was based upon the application of the summary
of the law
on the point appearing in para 59(d) of the judgment of this court in
Powell
NO v Van der Merwe NO, supra.
In
this regard Hurt J found that the failure to include in the warrants
the information relating to the nature of the investigation
for the
purpose of which the warrants were sought resulted in their not
conveying to the persons on the receiving end of the warrants
the
ambit of the searches authorised by the warrants. That the warrants
read on their own, without reference to Mr du Plooy’s
founding
affidavit, were so defective cannot be gainsaid. It is clear from the
operative part of the warrants that the power to examine
and
thereafter seize objects conferred was confined to things which had
or might have a bearing ‘on the investigation in question’
but the terms of the investigation were stated in such general terms
that it was not possible to ascertain what it covered.
[34]
Mr
Trengove,
who
appeared with Mr
Salmon
and
Mr
Breitenbach
for
the appellants, endeavoured to meet this point by submitting that
para 59(d) of this court’s judgment in
Powell
does
not require that the warrant be intelligible ‘then and there’,
as it was put, ie, at the time of the search, and
that it is enough
that the ambit of the search should be intelligible when and if
challenged in court after the person whose premises
have been
searched has had sight of the founding affidavit on the strength of
which the warrant was issued. He pointed out that although
para 59 in
Powell
purports
to be a summary of the legal position as set out in the cases
discussed in this part of the judgment the requirement of
intelligibility
to the searched did not feature at all in that
discussion and that, as he put it, its pedigree was not clear. He did
not, however,
submit that this requirement in the judgment was
incorrect but merely that it had to be qualified in the way I have
indicated. He
stated that he was unable to point to any authority in
our law either for or against his submission in this regard and Mr
Kemp,
who
appeared with Mr
Smithers
on
behalf of the respondents, and argued for the contrary proposition,
indicated that he was also unable to refer to authority on
the point.
[35]
In my view Mr
Trengrove’s
attempt
to introduce this qualification into what was said on the point in
Powell
cannot
succeed. The suggested qualification is not only against the trend of
the South African authorities to which I shall refer
presently as
well as that of decisions in Australia and New Zealand but there are
also compelling reasons why that should be so,
as I shall endeavour
to indicate.
[36] I
begin with the South African authorities to which reference was made
in
Powell.
In
Pullen
NO v Waja
1929
TPD 838
at 849 Tindall J in a passage quoted in
Powell
at
para 54 said:
It is desirable
that the person whose premises are being invaded should know the
reason why: the arguments in favour of the desirability
of such a
practice are obvious.’
[37]
In
Minister
of Justice v Desai NO
1948
(3) SA 395
(A) the same judge, by this time Tindall ACJ, said (at
405), when discussing the desirability of including a recital in a
warrant:
‘
a recital is
a helpful part of a search warrant if it is properly drafted, for it
apprises the occupier whose premises are searched
of the reason for
the encroachment on his rights and thus may tend to allay resentment
and prevent obstruction of the police.’
[38]
The topic is considered in a number of judgments delivered elsewhere
in the Commonwealth, many of which are collected in the
comprehensive
judgment of Burchett J delivered in the Federal Court of Australia in
Beneficial
Finance Corporation Ltd v Commissioner of Australian Federal Police
(1991)
103 ALR 167
(Fed C of A). The statutory provisions considered in
those cases were not materially different from those under
consideration here.
One of the cases to which he referred was
Auckland
Medical Aid Trust v Taylor
[1975]
1 NZR 728 (CA) in which McCarthy P said (at 736 line 50 to 737 line
2):
‘
As,
according to my view, s 198 required a warrant to be issued in
respect of a particular offence, it seems to me to be a necessary
requirement still that there be sufficient particularity to enable,
as I have said, the officer executing it to know to what offence
the
articles he is searching for must relate,
and
to enable the owner of the premises to understand, and if necessary
to obtain legal advice about, the permissible limits of the
search.’
(The
emphasis is mine.)
In the same case McMullin
J said (at 749 lines 12 to 22 and 37 to 42):
‘
It is
important . . . that the executing officer should know just what is
the offence in respect of which the warrant is issued for
without
that knowledge the search may be unbounded.
It
is important, too, to the householder who may be concerned to know
the scope of the warrant.
He
is entitled to have the warrant produced to him by the officer
executing it (s 198 (8)).[As he is in our law (s 29(9)(a)).] The
production of a warrant may have a twofold purpose, (i) to satisfy a
householder that the person presenting the warrant is a person
having
judicial authority to enter the premises,
and
(ii) to enable the householder to ascertain to what things the search
is to be directed.
.
. . I am of the opinion that there should be a sufficient measure of
particularisation of the offence in the warrant to enable both
the
officer executing the warrant
and
the person on whose premises it is to be executed (who may not be the
suspect) to know just what are the metes and bounds of the
search and
seizure contemplated.’
(Again,
my emphasis.)
(See
also
Rosenberg
v Jaine
[1983]
NZLR 1
at 5 and
Tranz
Rail Ltd v Wellington District Court
[2002]
3 NZLR 780
(CA) at 793 line 48 to 794 line 3.)
[39]
Another decision to which Burdett J referred (at 183) was an
unreported judgment of Toohey J in
Quartermaine
v Netto,
delivered
on 14 December 1984, in which the following was said:
‘
The
requirement of particularity is not merely formal; it is aimed at
ensuring that the person whose premises are being searched knows
the
object of the search and can therefore make some assessment of the
material likely to prove relevant. It is unacceptable that
such a
person be left in the dark as to the object of the search.’
[40]
In the case before him Toohey J held that there was ‘sufficient
precision to enable the officer executing the warrant to
know what he
is required to look for and for those in whose premises documents are
found to make some assessment of what is required
of them.’
[41]
The matter was also considered by the English Court of Appeal in
Regina
v Inland Revenue Commissioners, Ex parte Rossminster Ltd
[1979] UKHL 5
;
1980
AC 952.
That case concerned a warrant issued by the Common Serjeant
of the City of London under s 20C of the Taxes Management Act 1970,
as
amended. The warrant was addressed to various officers of the
Board of Revenue and it authorised them to enter certain premises,
to
search them and to ‘seize and remove any things whatsoever
found there which you have reasonable cause to believe may be
required as evidence for the purpose of proceedings in respect of
such an offence.’ The expression ‘such an offence’
was a reference to ‘an offence involving fraud in connection
with or in relation to tax’. The warrant was challenged
on the
ground that it did not specify any particular offence involving fraud
in connection with or in relation to tax. It was suggested
that there
might be twenty different kinds of such fraud.
[42]
The application failed in the Queen’s Bench Divisional Court
but succeeded in the Court of Appeal. An appeal by the revenue
commissioners to the House of Lords succeeded, mainly, as I see it,
as far as the point presently under consideration is concerned,
on
what was held to be the correct construction of the section under
which the warrant was issued. The Court of Appeal’s
construction
of the section was held to be erroneous.
[43]
In my view, however, the reasoning contained in Lord Denning MR’s
judgment on the point presently under discussion does
apply to our
section construed against the background of the Constitution and the
rights set forth in our Bill of Rights, particularly
s 14, which
entrenches the right to privacy. Moreover our section, unlike s 20c
of the Taxes Management Act, requires that a person
who seizes
anything should be authorized to do so by the warrant.
[44]
The passage in Lord Denning MR’s judgment which is in my view
relevant in this case runs from 973H to 974F. It reads as
follows:
‘
(T)he vice
of a general warrant of this kind – which does not specify any
particular offence – is two-fold. It gives no
help to the
officers when they have to exercise it. It means also that they can
roam wide and large, seizing and taking pretty well
all a man’s
documents and papers.
There is some
assistance to be found in the cases. I refer to the law about arrest
– when a man is arrested under a warrant
for an offence. It is
then established by a decision of the House of Lords that the warrant
has to specify the particular offence
with which the man is charged:
see
Christie
v Leachinsky
[1947] UKHL 2
;
[1947]
A.C. 573.
I will read what Viscount Simon said, at p 585:
“
if the
arrest was authorised by magisterial warrant, or if proceedings were
instituted by the issue of a summons, it is clear law
that the
warrant or summons must specify the offence . . . it is a principle
involved in our ancient jurisprudence. Moreover, the
warrant must be
founded on information in writing and on oath and, except where a
particular statute provides otherwise, the information
and the
warrant must particularise the offence charged.”
Lord Simonds put it more graphically
when he said, at p. 592:
“
Arrested
with or without a warrant the subject is entitled to know why he is
deprived of his freedom, if only in order that he may,
without a
moment’s delay, take such steps as will enable him to regain
it.”
So here. When the officers of the
Inland Revenue come armed with a warrant to search a man’s home
or his office, it seems to
me that he is entitled to say: “Of
what offence do you suspect me? You are claiming to enter my house
and to seize my papers.”
And when they look at the papers and
seize them, he should be able to say: “Why are you seizing
these papers? Of what offence
do you suspect me? What have these to
do with your case?” Unless he knows the particular offence
charged, he cannot take steps
to secure himself or his property. So
it seems to me, as a matter of construction of the statute and
therefore of the warrant –
in pursuance of our traditional role
to protect the liberty of the individual – it is our duty to
say that the warrant must
particularise the specific offence which is
charged as being fraud on the revenue.
If this be right, it follows
necessarily that this warrant is bad. It should have specified the
particular offence of which the man
is suspected. On this ground I
would hold that certiorari should go to quash the warrant.’
[45]
The passages quoted from
Christie
v Leachinsky, supra,
by
Lord Denning MR were in accordance with our law even before the
Interim Constitution came into force: see, eg,
Minister
of Law and Order v Kader
1991
(1) SA 41
(A) at 46D-E.
[46]
In the circumstances I am satisfied that para 59 of Cameron JA’s
judgment in
Powell
correctly
states the legal position to be applied in this case and that the
‘not then and there’ qualification argued
for by Mr
Trengove
would
not be correct.
[47]
Mr
Trengove
also
submitted that in deciding whether the warrants were intelligible ‘to
the searched’ one had to take into account
the knowledge
already possessed by Mr Zuma, not by the persons to whom the warrants
in question were presented when the searches
began. I think that
there are two answers to this submission.
[48]
First, regard being had to the need for the warrant, standing on its
own, then and there to indicate with the required specificity
‘the
metes and bounds’ of the authorised search and seizure, so that
steps could be taken without a moment’s delay
for unauthorised
search and seizure to be stopped, it must follow, as Mr
Kemp
in my
view correctly submitted, that the warrant must be reasonably
intelligible to the person to whom it has to be presented in terms
of
s 29(9)(a) of the Act. Secondly, even if Mr Zuma can be regarded as
having had the requisite knowledge so as to understand the
full ambit
of the warrants (a matter on which I make no finding), I think that
the answer to the submission is contained in subparagraph
(f) of para
59 in
Powell,
which,
it will be recalled, reads:
‘
It is no
cure for an overbroad warrant to say that the subject of the search
knew or ought to have known what was being looked for:
The warrant
must itself specify its object, and must do so intelligibly and
narrowly within the bounds of the empowering statute.’
[49] I do not think that
the appellants’ case is taken any further by a consideration of
the provisions of s 29 (10)(b). First,
it is not clear whether the
paragraph can pass constitutional muster unless a provision requiring
disclosure to the ‘searched’
person of sufficient
information to enable him or her to know ‘the metes and bounds
of the search and seizure contemplated’
is to be read in.
Secondly, the need for an urgent search and seizure operation as
envisaged under ss (10) did not exist in this
case. It may be that if
such a need had existed ‘the metes and bounds’
requirement may have been capable of being dispensed
with on the
application of the principles set forth in s 36 of the Constitution.
[50]
What is important in this case is that s 29 (9)(a) requires a copy of
the warrant to be handed to the person in control of the
premises or
affixed to a prominent place on the premises if such person is not
present. As McCarthy P said in the
Medical
Aid Trust
case,
supra
(at
736 line 39), the corresponding requirement in the New Zealand
statute was put there for some purpose. What that purpose is appears
clearly from the authorities to which I have referred. A construction
of our section which would defeat that purpose can clearly
not be
upheld and could lead in certain cases to invasions of privacy which
are totally unacceptable and contrary to the spirit,
purport and
objects of our Bill of Rights.
[51]
In view of the fact that I am satisfied that Hurt J was correct in
holding that all the warrants were invalid because they did
not
intelligibly convey the ambit of the search, it is unnecessary for me
to consider Mr
Trengove’s
submission
that Hurt J erred in holding that the ‘catch-all paragraph’
could not be severed from the rest of the warrants.
It is
appropriate, however, to record that Mr
Kemp,
in
my view correctly, did not support Hurt J’s view that
‘constitutional considerations have superseded the
considerations
which led the Appellate Division to hold that
offending portions of a warrant could be severed from the acceptable
potions’
in the
Cine
Films
and
SA
Associated Newspapers
cases.
In the
Ferucci
case,
which Hurt J purported to follow, the court found (at 234 F) that
severance was not possible because the difficulties flowing
from the
terms and contents of the warrant permeated the warrant as a whole,
not because of new constitutional considerations which
rendered the
two Appellate Division cases no longer applicable.
[52]
In the circumstances I am satisfied that Hurt J correctly held that
the five warrants with which he was concerned were invalid.
SHOULD A
PRESERVATION ORDER BE GRANTED?
[53]
In view of the fact that I have come to the conclusion that Hurt J
correctly held that the warrants under consideration in this
matter
were invalid it is necessary to consider Mr
Trengove’s
further
submission that the order of the court
a
quo
should
be varied by inserting therein paragraphs which are designed to
ensure the preservation of the evidential material gathered
under the
warrants or copies thereof.
[54]
Mr
Trengove
contended
that a decision to the effect that the warrants were invalid amounts
to a finding that the appellants unlawfully infringed
the
respondents’ rights to privacy which are constitutionally
entrenched in the Bill of Rights. The court has, so it was submitted,
a wide discretion to determine the appropriate remedy in cases
involving the infringement of constitutional rights. In this regard
reliance was placed on s 38 and s 172 (1) of the Constitution.
[55]
These provisions read, as far as is material, as follows:
’
38 Anyone
listed in this section [which includes “anyone acting in their
own interest”] has the right to approach a competent
court,
alleging that a right in the Bill of Rights has been infringed or
threatened, and the court may grant appropriate relief,
including a
declaration of rights . . .’
‘
172 (1) When
deciding a constitutional matter within its power, a court
(a)
must declare that
any law or conduct that is inconsistent with the Constitution is
invalid to the extent of its inconsistency; and
(b) may make any order that is just
and equitable, including –
(i)
an order limiting
the retrospective effect of the declaration of invalidity; and
(ii) an order
suspending the declaration of invalidity for any period and on any
conditions, to allow the competent authority to correct
the defect.’
[56]
Mr
Trengove
submitted
that in fashioning appropriate remedies so as to deal with
constitutional violations the courts have to have regard to the
interests of third parties where these are or would be involved.
Examples of cases where this was done are
Modderklip
Boerdery (Pty) Ltd
2004
(6) SA 40
(SCA),
MEC
Department of Welfare, Eastern Cape v Kate
[2006] ZASCA 49
;
2006
(4) SA 478
(SCA) and
MEC
for Local Government and Development Planning, Western Cape v Paarl
Poultry Enterprises CC trading as Rosendal Poultry Farm
2002
(3) SA 1
CC. He
pointed
out that the public have an interest in the prosecution of criminals:
indeed, as was said in
S
v Basson
[2004] ZACC 13
;
2005
(1) SA 171
(CC) at para 33 the effective prosecution of crime is an
important constitutional objective. In the same case at para 32 it
was said
that ‘[t]he constitutional obligation upon the State
to prosecute those offences which threaten or infringe the rights of
citizens
is of central importance in our constitutional framework.’
(See also
Key
v Attorney-General, Cape Provincial Division
[1996] ZACC 25
;
1996
(4) SA 187
(CC) at para 13.)
[57]
It was further submitted that a declaration that the warrants are
invalid coupled with a preservation order would, in the language
of s
172 (1)(b) of the Constitution, be ‘just and equitable’
because it would recognise and balance all the constitutional
interests involved.
[58]
Mr
Trengove
contended
further that there was ample reason for the exercise in the way
suggested of the court’s remedial discretion. He listed
four
factors, viz:
(1) It
is clear that the State at all times acted in good faith and there is
no suggestion, nor can there be, that it acted in bad
faith or with
ulterior purpose.
(2)
This is not a case of crass or gross violations of human rights;
(3)
The search and seizure was undertaken in the course of an
investigation of serious crimes of high public interest. All persons
concerned, State, police and potential accused, have a material
interest in the search for the truth and the materials seized can
only contribute to that end. It follows that an order should be
fashioned which preserves the evidence and does not expose it to
the
risk that it might be lost.
(4) In
view of the suggestion made in the respondent’s papers that Mr
Zuma’s professional privilege may have been breached
as a
result of the execution of the warrants, it may become an issue at a
possible future trial of Mr Zuma whether he has suffered
irreparable
prejudice in this regard. The interests of justice require that that
issue should be capable of the easy and definitive
resolution which
only the preservation of copies of the materials seized can ensure.
[59]
In support of his contention that this court should in the exercise
of its wide powers under s 38 and s 172(1) of the Constitution
Mr
Trengove
referred
to the position in Canada where the applicable constitutional
provisions resemble ours in certain respects. In particular
s 24(1)
of the Canadian Charter of Rights and Freedoms, which provides that
‘[a]nyone whose rights and freedoms, as guaranteed
by this
Charter, have been infringed or denied may apply to a court of
competent jurisdiction to obtain such remedy as the court
considers
appropriate and just in the circumstances’, uses language which
appears to have influenced the framers of our Constitution
in the
drafting of s 38 and s 172 (1). In addition our s 35(5) (which
provides that ‘evidence obtained in a 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’) is clearly influenced by s
24(2) of the Charter, which reads as follows:
‘
(2) Where,
in proceedings under subsection (1), a court concludes that evidence
was obtained in a manner that infringed or denied
any rights or
freedoms guaranteed by this Charter, the evidence shall be excluded
if it is established that, having regard to all
the circumstances,
the admission of it in the proceedings would bring
the
administration of justice into disrepute.’
[60]
Mr
Trengove
referred
to the fact that some courts in Canada have adopted the view that
unconstitutionally obtained evidence should always be returned
unless
‘the initial possession by the person from whom the things were
seized was itself illicit, eg, in the case of prohibited
drugs or
weapons’: see
Lagiorgio
v the Queen
(1987)
42 DLR (4
th
)
764 (Federal Court of Appeal) at 767. In that case Hugessen J said
(ibid): ‘Anything less negates the right and denies the
remedy.’ Another case where a similar stance was adopted was
Re
Weigel and The Queen
(1983)
1 DLR (4
th
)
374 (Sask QB), in which Noble J said (at 380): ‘The rights of
an accused must not be given away just to make it easier for
the
Crown to prosecute an accused person.’ Earlier in his judgment
(at 379) he had said that it was necessary that illegally
obtained
evidence be returned to provide incentives for proper investigative
conduct. ‘What justification’, he asked,
‘is there
for ruling on the one hand that the issue of a search warrant was
illegally made and in the next breath saying to
the authorities –
that is alright – you can use the seized articles as evidence
against the accused anyway. Can it be
said this clearly contradictory
position will encourage police officers and persons in authority to
abide by the laws designed to
protect the rights of the ordinary
citizen? I think not.’
[61]
Mr
Trengove
also
drew our attention to another line of cases in Canada where a more
flexible approach was adopted. In one of them,
Re
Dobney Foundry Ltd and The Queen
(No.2)
(1985) 19 CCC (3d) 465, a judgment of the British Columbia Court of
Appeal, Esson JA criticised the line of cases which included
Re
Weigel and The Queen, supra,
saying
(at para 19) that they rested ‘upon the premise that the
purpose and effect of the Charter is to elevate individual rights
and
freedoms to an absolute value which excludes any consideration of
competing values such as the desirability that the criminal
law be
enforced. The rationale for that approach is that only “the
police” are concerned with the enforcement of the
criminal law.
That approach, I suggest, ignores the reality of the matter, viz.,
the interests of the community as a whole require
that a reasonable
balance be struck between individual rights and community interest.’
[62]
The order made in that case was that the justice of the peace in
whose possession the documents were being kept under seal pursuant
to
an early interim order of the court should return the documents
seized to the appellants within seven days from the date of service
of his order provided that if a new warrant or warrants had been
obtained before the expiration of seven days the justice of the
peace
was to deliver to the Crown all documents covered by the warrant or
warrants and to return all other documents to the appellants.
[63]
In the course of his judgment Esson JA referred to
Re
Chapman and R
(1984)
12 CCC (3d) 1 (Ontario Court of Appeal), a decision in which the
court had ordered the return of documents seized under an
invalid
warrant, despite an assertion by the Crown that the items were needed
for the purpose of a criminal prosecution. It had done
so not by
applying a rigid rule but in the exercise of a discretion.
[64]
Another decision of the Ontario Court of Appeal on the point is
Commodore
Business Machines Ltd v Canada (Director of Investigation and
Research)
(1986)
50 DLR (4
th
)
559 (Ont C.A.), where stating (at 562) that ‘[i]t may be that
in many, if not most, of the situations where a search has been
conducted in violation of Charter rights the goods seized should be
returned’, Cory JA made an order permitting the Crown to
retain
copies of the documents seized.
[65]
Mr
Trengove
submitted
that the flexible approach adopted by the Ontario Court of Appeal
should be followed. He cited with approval views of Professor
Kent
Roach of the University of Toronto which are set out in his book
Constitutional
Remedies in Canada
(para
9.770) as follows:
‘
In my view,
the Ontario Court of Appeal’s approach is to be preferred to
those taken by other courts. It allows courts to return
evidence when
necessary either to correct a s. 8 violation by restoring illegally
seized property or to avoid condoning and participating
in a serious
violation. If courts refuse to return evidence obtained through
flagrant breaches of the Charter, they will not only
condone the
unacceptable conduct, but actually assist it by retaining the fruits
of illegal searches. At the same time, it is difficult
to argue that
crime control considerations should never be considered, especially
in cases where the evidence, if returned, is likely
to be destroyed
or otherwise not be available in subsequent trials. Courts should
recognize that the return of evidence is in a practical
sense related
to its possible exclusion at a criminal trial and should be hesitant
to return evidence, if its exclusion could be
not justified under s.
24(2).’
[66]
It was
accordingly
contended that the court has the power, which in the circumstances of
this case it should exercise, to fashion an order
which preserves the
evidence seized under the warrants (or copies thereof) so that the
trial court can ultimately determine whether
it should nonetheless be
admissible in evidence. He submitted that the order should be
sufficiently widely framed to ensure that
if following the final
determination of this appeal and the related appeals Mr Zuma is not
charged at all or if he is not charged
within a reasonable time he
and Mr Hulley may apply on the same papers duly amplified for an
order directing the registrar to release
the materials to them.
[67]
Mr
Kemp
submitted
that if this court were to hold that the warrants were invalid, the
court should simply order the return of the documents.
He submitted
that the rights protected by s 14 of the Constitution include the
right to control one’s information and submitted
that the
violation of the respondents’ rights would only end when the
documents were handed back.
[68]
In my view Mr
Trengove
was
correct in submitting that this court has the power to order that the
documents or copies should be retained under seal by the
Registrar of
the Durban High Court. It is true that such an order would involve a
continuation to some extent (although a relatively
minor one) of the
violation of the respondent’s constitutional rights to the
documents but it is clear that the court’s
power under s 38 and
s 172 (1) of the Constitution is wide enough to cover this.
[69]
For the reasons given by Mr
Trengove
I
think it would be appropriate in this case for an order to be made
for the preservation under seal by the Registrar of the Durban
High
Court of copies of the documents seized under the warrants declared
invalid in this case, with the originals being handed back
to Mr Zuma
and Mr Hulley.
SUGGESTED
ORDER
[70]
The following order should in my view be made.
1. Subject to what is set
out below, the appeal is dismissed with costs including those
occasioned by the employment of two counsel.
2. The order of the High
Court is varied by the substitution of the following paragraph for
the existing paragraph 2:
‘
2
(a) The respondents are ordered to hand over to the registrar
forthwith all items seized and removed from the respective premises
in terms of the aforesaid warrants together with all copies of such
items which the respondents or their agents may have made while
the
items have been in their possession, irrespective of the means by
which such copies have been made or taken.
(b)
The registrar is ordered to make copies (either in person or through
a delegate) in the presence of the attorneys for the applicants
and
the respondents of all the documents seized pursuant to the warrants
referred to in paragraph 1 and to cause images of all computer
materials seized pursuant to such warrants to be made by an expert
appointed by the registrar and must hand over to the applicants’
attorneys the originals of the documents and the computer materials
seized and all copies of such items which the respondents or
their
agents may have made while the items have been in their possession
(irrespective of the means by which such copies have been
made or
taken) after the copying process is complete.
(c) The registrar is
directed to retain the copies and computer images made in terms of
subparagraph (b) and to keep them accessible,
safe and intact under
seal until:
(i) notified by the
respondents that the retained items or any of them may be returned to
the applicants; or
(ii) if proceedings are
instituted pursuant to the investigation referred to in the founding
affidavit placed before Ngoepe JP when
the said warrants were
authorised, the conclusion of such proceedings; or
(iii) the date upon which
the first respondent decides not to institute or to abandon such
proceedings;
whereupon the items so
retained must be returned to the applicants.
(d) The provisions of
subparagraphs (b) and (c) are subject to:
(i) any order of any
competent court (whether obtained at the instance of the applicants
or the respondents);
(ii) the lawful execution
of any search warrant obtained in the future; or
(iii) the duty of either
of the applicants or the registrar to comply with any lawful subpoena
issued in the future
(e) the respondents must
not take any step to obtain access to any of the retained or returned
items unless they give the applicants
reasonable prior notice before
any such step is taken: in particular, but without derogating from
the generality of this provision
the respondents may not take any
such step without giving the applicants:
(i) reasonable prior
notice of any application for a search warrant or an order directing
either or both of the applicants or the
registrar to deliver or
release any retained or returned item; and
(ii) a reasonable
opportunity to challenge in court any subpoena before either of the
applicants or the registrar is obliged to comply
with it.
(f) The respondents must
pay all costs of implementing the provisions of this paragraph.’
________________
IG
FARLAM
JUDGE
OF APPEAL
CONCURRING
CLOETE JA
NUGENT
JA
:
[71] I have read the
judgment of my colleague Farlam. I cannot agree with the order that
he proposes and I regret that I must indeed
gainsay his view that the
warrants were defective.
[72] In the course of his
judgment the learned judge in the court below made certain
observations that reflect an approach that I
think is fundamentally
unsound. The learned judge observed that with time the courts will
develop a body of practice as to the circumstances
in which it is
appropriate for a warrant to be issued and, so it seems from what he
said, as to the form that such a warrant must
take, in much the way
that courts have developed by gradual modification what is commonly
known as the Anton Piller order. He added
that considerable
assistance is to be had in that regard by looking at the manner in
which courts have dealt with statutory provisions
of the kind that
are now in issue in other legislation, and that such a ‘body of
rules’ has already started to develop.
In my view that
approaches the matter the wrong way round.
[73] The example that the
learned judge used of an Anton Piller order highlights the defect of
that approach. The Anton Piller order
is a remedy that the courts
have created in the exercise of their inherent powers. It is to be
expected in those circumstances that
the courts have fashioned a
‘body of rules’ determining when and in what form such an
order may be issued. But that is
not what we are concerned with in
this case. We are concerned with warrants that are issued under
statutory powers. It is the statute
that must dictate what is
required for a warrant to be valid and not the warrant that must
dictate to the statute.
[74] Whether or not a
warrant is defective depends upon whether or not it meets the
requirements of the statute and that is in turn
a matter for
construction of the statute. It would be quite wrong for courts to
devise what they consider to be a satisfactory form
of warrant and
then to test the validity of a particular warrant against that
self-devised template. And while decisions in other
cases will
sometimes be helpful in deciding whether a warrant meets the criteria
demanded by a particular statute at other times
they will not be.
Statutes that allow for search and seizure are not all the same. Nor
do I think that decisions from foreign jurisdictions
need to be
slavishly adopted least of all without careful consideration of the
context within which they were decided.
[75] The proper starting
point, in my view, is not with pre-conceived ideas of what a warrant
must contain, whether drawn from other
cases or otherwise, but rather
with construing the particular authorising statute to see what its
criteria are. And where the legislature,
in a constitutionally valid
law, has authorised the performance of an act if certain conditions
are met, others cannot simply be
added.
[76] But there are two
criteria for validity that will indeed apply to all warrants for
search and seizure on account of their nature
alone. A warrant is no
more than a written authority to perform an act that would otherwise
be unlawful. Like any other written authority
it must obviously be
intelligible (‘capable of being understood’)
1
for it must be possible
to determine with certainty the scope of its authority. A warrant
must also authorise no more than is permitted
by its authorising
statute. If it purports to authorise what it is not permitted to
authorise the warrant will be invalid at least
to the extent of the
excess. (It might be wholly invalid if the good cannot properly be
severed from the bad.)
[77] Those criteria for
the validity of a warrant were recently restated by this court in
Powell.
2
The form in which it was
expressed (a warrant must be intelligible to ‘searcher and
searched’) was taken by counsel for
the respondents to mean
that a warrant must necessarily contain all the information that is
required to identify what may and what
may not be searched for and
seized without travelling outside the warrant. That is not what was
said in
Powell
and the language that was
used does not purport to do so. Whether that is required for a
warrant to be valid is a question that goes
to its necessary content
rather than to its ‘intelligibility’ and was not
considered or even discussed in
Powell
.
But it has taken up most of the argument in this matter and I will
return to it later in this judgment.
[78] Apart from those two
generally applicable criteria for the validity of a warrant I do not
think there are others that are material
to this case. If there are
other requirements for the validity of the warrants that are now in
issue they must be found in the statute
itself, whether expressly or
by necessary implication, if they are to be found at all.
[79] A statute must
generally be construed in accordance with the ordinary meaning of its
language viewed within its context (which
includes the purpose that
the statute sets out to achieve). In this case there has been no
suggestion that the powers that are conferred
by the authorising
statute are unconstitutional and thus invalid. Nor was that suggested
when the Constitutional Court scrutinised
the section in
Hyundai
Motor Corporation.
3
Some of the submissions
that were made before us drew freely on what were said to be
constitutional imperatives that justify the ordinary
language being
rewritten to a greater or lesser degree but none of those submissions
paid any attention to the permissive provisions
of s 36 of the Bill
of Rights. That section permits the legislature to make inroads upon
protected rights (which the present statutory
provision does) if
certain requirements are met. There has been no suggestion that the
inroads that are made by the present statute
when construed in its
ordinary meaning are not consistent with the provisions of s 36 and
there is no reason then to give it another
meaning.
[80] The clear purpose of
the search and seizure section that is now in issue is to afford a
tool to the Directorate of Special Operations
(the Directorate) to
perform its statutory functions. The Directorate was established in
the office of the National Director of Public
Prosecutions (NDPP) by
s 7(1)
of the
National Prosecuting Authority Act of 1998
. One of its
functions is to investigate and prosecute the commission of
‘specified offences’, which include certain offences
‘of
a serious and complicated nature.’
4
(Nothing turns on what
offences that term encompasses and for convenience I will call them
simply ‘offences’.)
[81] The general scheme
of the Directorate’s investigating powers was analysed by the
Constitutional Court in
Hyundai
Motor Corporation,
and
again by this court in
Powell,
and I
need only summarise it. The Act envisages that an investigation might
be conducted in either of two forms. The Investigating
Director may
conduct a full investigation (in
Powell
it was called a plenary
investigation and I will use that term) if he or she has reason to
suspect that an offence has been or is
being committed.
5
(A delegate may be
appointed to do so on his or her behalf and where appropriate I will
call the Investigating Director and his or
her delegate
interchangeably the ‘investigator’). If the Investigating
Director considers it necessary to hear evidence
in order to
establish whether there are reasonable grounds to conduct a plenary
investigation he or she may also hold a preparatory
investigation.
6
[82] The statute gives
extensive investigatory powers to an investigator (whether in a
preparatory or a plenary investigation). He
or she may summon any
person who is believed to be able to furnish any information on the
subject of the investigation, or to have
in his or her possession or
under his or her control any book, document or other object relating
to that subject, to be questioned
and to produce the item, to
question the person concerned, and to retain for further examination
or safe custody any such item.
7
An investigator also has
wide powers of search and seizure. Subject in each case to a caveat
that I will come to ss 29(1) and 29(9)
authorise an investigator to
enter any premises on or in which anything connected with that
investigation is or is suspected to be
and then to –
‘
(a) inspect and search those
premises, and there make such enquiries as he or she may deem
necessary;
(b) examine any object found on or in
the premises which has a bearing or might have a bearing on the
investigation in question, and
request from the owner or person in
charge of the premises or from any person in whose possession or
charge that object is, information
regarding that object;
(c) make copies of or take extracts
from any book or document found on or in the premises which has a
bearing or might have a bearing
on the
investigation
in question, and request from any
person suspected of having the necessary information, an explanation
of any entry therein;
(d) seize, against the issue of a
receipt, anything on or in the premises which has a bearing or might
have a bearing on the
investigation
in question, or if he or she wishes to
retain it for further examination or for safe custody…’
[83] Extensive as those
powers of search and seizure are I do not find it surprising that
they are given. It can be expected that
at the time an investigation
commences (whether it be preparatory or plenary) an investigator will
have little or no knowledge of
when or where or how or by whom the
suspected offence was committed. For an investigation may be
initiated on no more than suspicion,
and suspicion that an offence
has been or is being committed is quite capable of existing without
details of that kind being known.
It is also unlikely that an
investigator will know, without further enquiry, what documents or
books or objects exist that might
have a bearing on the
investigation. How else is an investigator then to discover whether
an offence has been or is being committed,
and if so when, and where,
and by whom, and in what manner it was or is being committed, and how
else is he or she to discover what
evidence there is to substantiate
those conclusions, other than to search for and examine objects and
documents that might reveal
those facts? I do not think that complex
criminal conduct, which is the kind of conduct that the directorate
was established to investigate,
can be expected to be uncovered by
relying only on information and material that is volunteered.
[84] In some
circumstances an investigator may enter premises and perform all the
acts listed in s 29(1) without a warrant.
8
Where those circumstances
exist an investigator may thus search the premises and examine any
object found on or in the premises, make
copies of or take extracts
from any book or document found on or in the premises, and seize
anything on or in the premises, if the
item concerned has or might
have a bearing on the investigation that he or she is conducting.
Before entering the premises and performing
those acts the
investigator need only identify himself or herself to the owner or
the person in control of the premises. The investigator
need not
inform the person concerned of the nature of the investigation, nor
provide any information relating to the investigation,
nor identify
in any way to the person in charge of the premises the material that
is being sought.
9
[85] Where the
circumstances referred to in s 29(10) do not prevail those powers may
be exercised if that is permitted by a judicial
warrant (and only if
it is so permitted). Section 29(4) provides that in those
circumstances the premises referred to in subsection
(1) may only be
entered, and the acts referred to in that subsection may only be
performed, ‘by virtue of a warrant’
10
issued in chambers by a
magistrate or a regional magistrate or a judge.
[86] The function of a
warrant, as it is expressed in the language of the section, is to
permit an investigator to perform the acts
that are authorised by s
29(1). It functions as what the Divisional Court in England (approved
by the House of Lords)
11
described as ‘the
key to the opening of the door to a power that is granted by [the
authorising statute)’.
12
While it may permit an
investigator to perform all the acts that are authorised by s 29(1)
that must necessarily include the power
to permit an investigator to
perform only one or more of those acts or to perform one or more of
them only to a limited extent.
[87] Such a warrant may
be issued (s 29(5))
‘
if it appears to the
magistrate, regional magistrate or judge from information on oath or
affirmation, stating -
(a) the nature of the
investigation
in terms of section 28;
(b) that there exists a reasonable
suspicion that an offence, which might be a
specified
offence
, has been or is
being committed, or that an attempt was or had been made to commit
such an offence; and
(c) the need, in regard to the
investigation
,
for a search and seizure in terms of this section,
that there are reasonable grounds for
believing that anything referred to in subsection (1) is on or in
such premises or suspected
to be on or in such premises.’
[88] The warrants that
are now in issue (I exclude for the moment the warrant to search the
premises of Mr Hulley) are all in the
same terms (but for the
premises that they describe). Attached to the body of each warrant
are two annexures. Annexure A lists, in
23 paragraphs, various
species of documentation that is to be searched for and seized.
Annexure B relates to electronic forms in
which that material might
be stored. The scope of the annexures is circumscribed by a clause in
the body of each warrant that limits
the material to that which ‘has
a bearing or might have a bearing on the investigation in question’.
The offences that
are being investigated, according to the body of
each warrant, are ‘corruption in contravention of Act 94 of
1992, fraud, money-laundering
in contravention of Act 121 of 1998,
the commission of tax offences in contravention of Act 58 of 1962’
and any attempt to
commit such an offence or offences.
[89] A search and seizure
on the terms that are described in the warrants would have been
permitted without a warrant in the circumstances
that are referred to
in s 29(10). The various species of documentation and material that
are described in the warrants, which are
all capable of
identification, are limited to documents and material that has or
might have a bearing on the investigation that is
in progress, and
they all fall within the terms of s 29(1). That search and seizure
would have been permitted by s 29(10) notwithstanding
that the person
in charge of the premises (‘the searched’) was unable to
identify for himself or herself the material
that was capable of
being seized. Indeed, it would have been permitted without
information of any kind relating to the investigation
being provided
to the person concerned.
[90] Yet it is contended
in this case that a search and seizure on those terms is not
permitted under a warrant unless the ‘searched’
is
provided with information of that kind in the warrant (precisely what
information was said to be required has never been made
altogether
clear). I would find it remarkable if an investigator was capable of
doing without a warrant what he or she is not capable
of doing under
the judicial control of a warrant. I find nothing in the statute to
support that conclusion. Whether or not s 29(10)
is constitutionally
invalid, as my colleague has suggested it might be, does not seem to
me to be relevant to construing the ordinary
meaning of the statute.
It might be that that section, and consequently the section that is
now in issue, on their ordinary meaning,
are indeed invalid (I do not
suggest that they are) but that is not a matter that we have been
called upon to decide.
[91] The learned judge in
the court below said (relying on the decision in
Powell
)
that it is ‘now authoritatively established’ that in
order to be valid a warrant must, amongst other things, ‘set
out the “specified offences” suspected of having been
committed or being committed’. He went on to say that that
required that ‘the person to be searched must be given
information as to approximately when the suspected offences have been
committed and who is suspected of having committed them.’ In
that respect, so the court held, the warrants were ‘inappropriately
vague’ and they were defective on that ground alone.
[92] I do not understand
the learned judge to have meant that as a matter of law a warrant
must ‘set out the offences’
that are suspected. Certainly
that was not established by
Powell
and the
statute also does not require it. I understand the learned judge to
have meant only that where a warrant allows for the seizure
of
material that has or might have a bearing on ‘the
investigation’ (as the warrant did in
Powell
and as they do in this
case) the failure to ‘set out the offences’ that are
under investigation will necessarily mean
that the scope of the
authority is vague.
[93] I do not think that
that, either, was established by
Powell.
In
Powell
the warrant, construed in
its particular context, allowed for the seizure of material that
exceeded what was permitted by s 29(1)
(which confines itself to
material that has or might have a bearing on an investigation, by
which is meant an investigation into
the suspected commission of
offences) and it was for that reason that the warrant was defective.
There is no dispute that the investigation
in the present case (and
accordingly the warrants) is confined to the investigation of
suspected offences. The point that is made
in this case is one that
was not dealt with in
Powell
(in view of the
construction that was placed on the warrant it was not necessary to
do so) and I do not think that case is of assistance.
[94] I think that the
finding of the court below needs to be clarified. The learned judge
said that the failure to specify what was
under investigation meant
that the terms of the warrant were vague. I do not think that is
correct. Merely because one needs to look
outside a written
instrument to establish what it relates to in concrete terms does not
mean that the instrument is vague. As pointed
out by Watermeyer CJ in
Rottcher’s
Saw Mills
13
(in relation to a written
contract but it applies as much to a warrant) it is always necessary,
in one way or another, to look outside
a written instrument to
translate the ‘abstraction’ that it expresses to the
‘concrete thing in the material world’.
If the outside
source that must be looked to for its interpretation establishes with
certainty what the instrument means then the
instrument is not vague
at all.
[95] In this case the
subject of the investigation is indeed capable of being established
with certainty. The investigator, with intimate
knowledge of what the
investigation entails, is quite capable of establishing with
certainty what may or may not be seized. A court
that might be called
upon to decide whether the authority of the warrant has been exceeded
will also be capable of doing so with
certainty upon evidence of what
the investigation entails. It is not that the warrant is vague. I
think that what the court below
had in mind was rather that they
contain insufficient information to enable the ‘searched’
to identify from the terms
of the warrant alone what may and what may
not be seized (to relate the ‘abstract’ to the ‘concrete
thing’).
The question is whether a warrant must indeed place
the ‘searched’ in that position in order to be valid.
[96] My colleague bases
his support for the finding of the court below on what was said by
Lord Denning in
Rossminster
(albeit
that he was overruled by the House of Lords)
14
and in certain cases
decided in New Zealand. I am sure that statements to the same effect
are to be found in other cases as well because
there might indeed be
statutes that require that of a warrant. But as I observed at the
outset of this judgment I think that is the
wrong way to approach the
enquiry. The enquiry is whether the statute in this case requires
that of a warrant. Certainly it does
not do so expressly and my
colleague has pointed to nothing in the statute that requires it by
necessary implication.
[97] If the necessity for
embodying information of that kind in the warrant is to place the
‘searched’ in a position to
identify what may and what
may not be seized (no other purpose has been suggested) then I fail
to see how that is achieved by informing
him or her ‘approximately
when and by whom’ the offence is suspected to have been
committed. That, by itself, will be
altogether insufficient for that
purpose. Why the ‘searched’ need be told only
‘approximately’ when the offences
are suspected to have
been committed, and why he or she need not also be told where and in
what manner it is suspected that they
were committed (though even
that additional information will not be enough to identify all
material that has or might have a bearing
on the investigation) is
unexplained. In endorsing its finding my colleague says only that the
investigation was ‘stated in
such general terms that it was not
possible to ascertain what it covered’ without saying what
would have sufficed. Assertions
by the respondents’ counsel as
to what was required are equally unhelpful. For in each case one is
left asking why some features
are selected for disclosure in
preference to others, and why any of those features are required at
all when none by themselves (or
even in combination) will suffice for
the intended purpose. It seems to me to be all rather random and
arbitrary.
[98] In truth it will not
be possible, in any practical terms, to embody in a warrant
everything that is required to identify all
material that has or
might have a bearing on an investigation that is of any complexity.
And if it is not possible to do so then
I see no reason why a statute
should require a warrant to make what is no more than an empty
gesture in that direction and none has
been suggested.
[99] Section 29(4) allows
for all (or any) of the acts set out in s 29(1) to be performed
(including the seizure of ‘anything
that has or might have a
bearing on the investigation’) if that is permitted by a
warrant and I think it follows that a warrant
may permit that in
terms (which is what the warrants in the present case effectively
do). There is nothing in the express language
of s 29 to suggest that
those acts may be permitted by a warrant only if a person who might
be in charge of the premises (there may
be no such person at all) is
first placed in a position to identify then and there what may and
what may not be seized. Indeed, nothing
in the express language of
the section suggests that a person who is in charge of the premises
must be provided with any information
relating to the investigation
at all. The court below and my colleague have also not pointed to
anything in the statute that suggests
by necessary implication that
that is required. On the contrary, in my view the section, construed
in its context, necessarily implies
the contrary, for at least five
reasons.
[100] First, if that is
indeed a requirement of the statute, then the information that must
be conveyed must surely be capable of
being circumscribed with some
certainty, rather than by mere random assertion. Secondly, as I
alluded to earlier, I do not think
it would be possible, in an
investigation of any complexity, to express in a warrant all the
information that would be necessary
for that purpose. One or more
features of the conduct that constitutes the suspected offence will
not serve that purpose, nor, indeed,
any rational purpose at all, and
I do not think that the section requires a gesture. Thirdly, to
require the disclosure of the full
nature of an investigation, such
that all material that has a bearing is capable of being identified
by those who might be implicated,
seems to me to have the real
potential to undermine the investigation. Fourthly, the person to
whom the warrant is presented is not
called upon to assist in
identifying the material or to perform any other act. It is difficult
to see in the circumstances why it
should be essential that he or she
is able to identify then and there the material that is subject to
seizure. Any contest as to
what may be seized under the warrant must
necessarily be resolved by a court, which is capable of determining
that issue upon evidence
of what the investigation entails. And
finally, to return to a point that I made earlier, if a search and
seizure in such terms is
permitted without disclosure when it occurs
without a warrant, I see no reason why the legislature should have
required it when it
occurs under the control of a warrant. Indeed, I
think that would be an absurd result, which the section must be
construed to avoid.
[101] The warrants in the
present case express intelligibly and with certainty the scope of the
authority that they confer. They permit
a search for and seizure of
all the species of material referred to in the annexures (all of
which is capable of being identified)
if the material has or might
have a bearing on the investigation in respect of which they were
issued. What that investigation entails,
and whether the material has
or might have a bearing upon it, are all objective facts that are
capable of being ascertained. A search
and seizure in those terms
also does not extend beyond what is permitted by s 29(1). I see
nothing more that is required of the warrants
by the statute.
[102] I should add that
the learned judge in the court below also held that para 23 of
annexure A to each of the warrants (he referred
to it as the
‘catch-all’ clause) was so wide in its terms that its
presence alone was sufficient to invalidate the warrants
but I do not
think that finding takes the matter further. In my view that clause
does not differ materially from the other clauses
of the annexure.
The material that it encompasses is similarly confined to material
that has or might have a bearing on the investigation
and it all
falls within the provisions of s 29(1).
[103] The court below
also held that Ngoepe JP ought not to have issued the warrants
because the information placed before him did
not demonstrate the
need for the search and seizure as required by s 29(5)(c). That was
principally because, said the learned judge,
the information placed
before Ngoepe JP ‘[did] not make out a case that the [material]
cannot be obtained by invoking the provisions
of section 28’.
15
(That section authorises
an investigator to summon a person to produce documents.) The learned
judge seems also to have been of the
view that the investigation
could make do without all the material that was sought but I do not
think that a judicial officer is
entitled to refuse a warrant for
that reason. How an investigation is to be conducted falls within the
prerogative of the investigator.
If material has or might have a
bearing on an investigation the investigator is entitled to have
access to the material and I do
not think that it is open to a court
to say that he or she may have access to only some of it but not
more. The section permits a
judicial officer to refuse a warrant only
if the need is not shown to resort to search and seizure for that
purpose.
[104] In my view the
court below set the bar far too high in requiring it to be shown that
the material could not be obtained by invoking
the provisions of
section 28. I do not see how an investigator could ever show that
other than by first asking for the material to
be produced and having
the request refused. If that were to be required before a warrant may
be issued it would altogether undermine
an investigation. I think
that subsection (c) requires it to be shown only that the material
cannot be expected in the ordinary course
to be produced voluntarily.
That will almost always be the case when it is being sought from a
person who it might incriminate, as
in the present case. I do not
think that finding of the court below was correct.
[105] The warrants
relating to the premises of Mr Hulley (who was Mr Zuma’s
attorney) were framed in the same general terms
as the other warrants
but the annexures were different. Annexure A had two paragraphs. The
first paragraph described a collection
of specific documentation that
had been delivered to Mr Hulley by the attorney for Mr Zuma’s
former financial adviser. There
is no difficulty identifying that
material. When the warrant was executed at Mr Hulley’s office
he immediately pointed to two
sealed boxes that contained the
material. There is also no suggestion that that material falls
outside the ambit of s 29(1). The
second paragraph described various
species of documentation, much as the annexures to the other warrants
did, but again confined
to material that has or might have a bearing
on the investigation. No attempt was made to execute that portion of
the warrant but
in any event I do not think it was defective, for the
reasons I have already given. Clearly it could not be said that Mr
Hulley,
if he were free to act by his own accord, might not have been
willing to produce the material voluntarily, but it must be borne in
mind that he would not have been entitled to do so other than on the
instructions of his client. In the circumstances the need for
search
and seizure in relation to that material was similarly established.
[106] Lastly to the
question of privilege. Section 29(11) creates a mechanism for
protecting the privilege that might be claimed for
information
contained in any material found on premises. It was submitted on
behalf of the respondents that a warrant that does not
contain at
least a reference to that section is defective. Apart from asserting
that proposition counsel provided no convincing explanation
why that
is a necessary implication of the statute and in my view the
submission has no merit.
[107] The learned judge
in the court below expressed himself on the importance of protecting
legal privilege when executing a warrant
and with much of what he
said I agree but I do not understand the learned judge to have held
that the execution of the warrant at
the premises of Mr Hulley (or
the execution of the warrants at other premises) was unlawful for any
failure in that regard nor do
I think it was. The warrant was
presented to Mr Hulley who immediately identified two boxes
containing the material covered by the
first paragraph of the
annexure and they were removed. No search took place at his premises
and no further material was seized. There
was no reason for the
appellants to have thought that the boxes might contain privileged
information. The boxes were expected to
contain documents that
emanated from Mr Zuma’s former financial adviser and not from
an attorney. The day after the material
was seized Mr Hulley wrote to
the appellants asserting that ‘a certain privilege’ might
attach to some of the documents,
but he has never elaborated upon
what that ‘certain privilege’ might be. There can be no
doubt that that was not a claim
that information contained in the
documents was protected from disclosure by legal professional
privilege for otherwise Mr Hulley
would have said so. Even now there
is no claim that any of the information was privileged. In the
circumstances I do not think it
has been shown that any special
precautions to avoid the disclosure of privileged information were
called for when the warrants were
executed.
[108] Other matters
raised by the respondents in the papers were not seriously pressed
before us and in any event I do not think they
have any merit. I do
not think that any of the warrants that are in issue in this appeal
were legally deficient, nor that they were
unlawfully executed. In
those circumstances the directorate is entitled to have such access
to the material as is ordinarily permitted
by law and the application
ought to have been dismissed.
[109] The appeal is
upheld with costs. The order of the court below is set aside and an
order is substituted dismissing the application
with costs. In both
cases the costs are to include the costs of two counsel.
________________
R.W.
NUGENT
JUDGE
OF APPEAL
PONNAN JA ) CONCUR
MLAMBO JA )
1
Shorter
Oxford English Dictionary.
2
Powell
NO v Van der Merwe NO
2005
(5) SA 62
(SCA) para 59.
3
Investigating
Directorate: Serious Economic Offences v Hyundai Motor Distributors
(Pty) Ltd: in re Hyundai Motor Distributorsv (Pty)
Ltd v Smit N.O.
[2000] ZACC 12
;
2001
(1) SA 545
(CC) para 40.
4
Powell
,
above, para 6.
5
Section
28(1).
6
Section
28(13).
7
Section
28(6) read with s 28(14).
8
(10)(a)
The
Investigating
Director
or
any person referred to in section 7(4)(a) may without a warrant
enter upon any premises and perform the acts referred to in
subsection (1) –
(i)
…
(ii)
if he or she upon reasonable grounds believes that –
the
required warrant will be issued to him or her in terms of
subsection (4) if he or she were to apply for such warrant; and
the
delay caused by the obtaining of any such warrant would defeat the
object of the entry, search, seizure and removal.
9
As
in the case of a search and seizure under warrant, it must be
conducted only with ‘strict regard to decency and order,
including a person’s right to, respect for and the protection
of his or her dignity, the right of a person to freedom and
security, and the right of a person to his or her personal privacy’
(s 29(2)).
10
The
ordinary meaning of ‘by virtue of’, according to the
Shorter Oxford Dictionary, is ‘by the authority of, in
reliance upon, in consequence of, because’
11
Inland
Revenue Commissioners v Rossminster Ltd (On appeal from Regina v
Inland Revenue Commissioners, Ex parte Rossminster Ltd)
[1980]
AC 952 (HL).
12
At
p. 961G.
13
1948
(1) SA 983 (A) 990-991.
14
Citation
above, fn. 11.
15
That
is the section that allows an investigator to summon persons to
answer questions and to produce documents.