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[2007] ZASCA 138
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National Director of Public Prosecutions and Another v Mahomed (596/05) [2007] ZASCA 138; 2008 (1) SACR 309 (SCA); [2008] JOL 21052 (SCA) (8 November 2007)
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REPUBLIC
OF SOUTH AFRICA
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case number: 596/05
Reportable
In
the matter between:
NATIONAL
DIRECTOR OF
PUBLIC
PROSECUTIONS FIRST
APPELLANT
INVESTIGATING
DIRECTOR:
DIRECTORATE
OF SPECIAL
OPERATIONS SECOND
APPELLANT
and
JULEKA
MAHOMED RESPONDENT
CORAM
:
FARLAM, NUGENT, CLOETE, PONNAN et MLAMBO JJA
HEARD
:
27 AUGUST 2007
DELIVERED
:
8 NOVEMBER 2007
SUMMARY:
Search and
seizure – materials seized pursuant to warrant invalidly
issued in terms of s 29 of
National Prosecuting Authority Act 32 of
1998
– whether appropriate for court setting seizure aside to
make order for preservation of copies of materials seized pending
possible prosecution of person whose materials were seized –
purposes for which such order may be granted.
ORDER OF COURT SET
OUT IN PARA 34 IN JUDGMENT OF NUGENT JA.
Neutral
citation: This judgment may be referred to as
National Director of
Public Prosecutions v Mahomed
[2007] SCA 138 (RSA).
JUDGMENT
FARLAM
JA
[1]
This is an appeal from a judgment of Hussain J, who granted an
application for the setting aside of two search and seizure warrants
issued in terms of
s 29
of the
National Prosecuting Authority Act 32
of 1998
and ordered the appellants, the National Director of Public
Prosecutions and the Investigating Director of the Directorate of
Special
Operations, to return forthwith all documents, files,
records, notes, data and other property of the respondent, who is a
practising
attorney, seized under the warrants, as well as the mirror
image of the hard drive of her laptop computer which was seized,
together
with all photographs taken of her office and home during the
execution of the warrants and certain other items.
[2]
The judgment of the court
a
quo
has been
reported: see
Mahomed
v National Director of Public Prosecutions
[2005] ZAGPHC 90
;
2006
(1) SACR 495
(W).
[3]
The warrants which were set aside in this matter were issued by
Ngoepe JP on 12 August 2005 and authorised searches and seizures
at
the respondent’s residence and offices in Johannesburg. It
appeared from the warrants that the documents sought thereunder
related to an investigation being undertaken by the Directorate of
Special Operations as to whether Mr Jacob Zuma, who was formerly
a
client of the respondent, and a group of companies described in the
annexure as the ‘Thomson–CSF/Thales/THINT group’
were guilty of certain offences.
[4]
Annexed to the warrants were two annexures, the first of which in the
case of both warrants contained 24 paragraphs listing
the objects
which could be seized.
[5]
By agreement between the parties all items seized were sealed and
deposited with the Registrar of the Johannesburg High Court.
By the
time they were deposited with the registrar the respondent had
claimed privilege in respect of all but three items.
[6]
In the heads of argument filed on their behalf the appellants
conceded that the warrants were invalid to the extent that no
case
had been made out for the search for and seizure of the objects
listed in paragraphs 2 to 24 of the annexures to which I have
referred. It was contended, however, that these paragraphs could be
severed from the warrants and that the remainder of the warrants
could and should be held to be valid.
[7]
Some days before the appeal was due to be heard the appellants
indicated that they were prepared to concede the appeal with
costs,
including the costs of two counsel, subject to the parties reaching
agreement on a satisfactory arrangement to achieve the
following two
purposes:
‘
[a] to
preserve for the ongoing investigation into Mr Zuma and the Thint
companies and any possible future proceedings against them,
the
things seized which are covered by paragraph 1 of Annexure A to the
warrants or by Annexure B thereto [this was an annexure
which set out
the manner in which certain computer-related objects could be dealt
with]; and
[b] to preserve a reliable record
of everything seized because such a record may be necessary if ever
it should be contended in
the future in any such proceedings that the
searches entailed or resulted in an unlawful invasion of legal
privilege.’
[8]
The respondent indicated that she was not prepared to agree to the
variation of the order of the court
a
quo
by the addition
of a preservation order.
[9]
When the matter was argued the only submissions addressed to the
court related to whether a preservation order should be inserted
in
the order granted by the court
a
quo.
[10]
On the two days after the appeal in this matter was argued the court
heard appeals from a judgment given in the Durban High
Court in an
application brought by Mr Zuma and his attorney, Mr Hulley, and a
judgment given in the Pretoria High Court in an application
brought
by Thint (Pty) Ltd. Both cases concerned other warrants issued by
Ngoepe JP on 12 August 2005, authorising other searches
and searches
relating to the investigation to which I have referred. The same
question as to whether a preservation order should
be issued in the
event of its being held that the warrants or the actions taken
pursuant thereto were invalid was argued. The judgments
of this court
in those two appeals are being delivered simultaneously with the
judgment in this matter.
[11]
For the reasons set out in the judgment in the appeal relating to the
application brought by Mr Zuma and Mr Hulley I am of
the opinion that
a preservation order should also be made in this case.
[12]
Mr
Tuchten,
who
appeared on behalf of the respondent in this case, submitted that a
preservation order should not be made. He argued in the
alternative
that if a preservation order were to be made it should take the form
of a draft which he included in his supplementary
heads. The main
respect in which his draft differed from the order suggested in the
appellants’ letter related to the inclusion
of a paragraph
providing for the parties’ attorneys to meet with the registrar
of the Johannesburg High Court in an endeavour
to identify what were
described as ‘irrelevant items’, which did not have to be
retained and could be returned immediately
to the respondent.
[13]
Mr
Trengove,
who
appeared for the appellants, contended that such a meeting would be a
waste of time as his clients were of the view that all
the documents
currently lodged with the registrar are relevant.
[14]
In the circumstances there would be no point in providing in the
order for the parties’ attorneys to meet with the registrar.
In
my view an order in the following terms would be appropriate in the
circumstances:
(A).
Subject to what is set out below, the appeal is dismissed with costs
including those occasioned by the employment of two counsel.
(B).
The order of the High Court is varied by the substitution of the
following paragraph for the existing paragraph 2:
‘
2(a)
The registrar is ordered to make copies (either in person or through
a delegate) in the presence of the attorneys for the applicant
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 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.
(b) The registrar is
directed to retain the copies and computer images made in terms of
subparagraph (a) and to keep them safe,
intact and accessible under
seal until:
(i)
notified by the respondents that the retained items or any of them
may be returned to the applicant; 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 applicant.
(c) The provisions
of subparagraphs (a) and (b) are subject to:
(i)
any order of any competent court (whether obtained at the instance of
the applicant or the respondents);
(ii)
the lawful execution of any search warrant obtained in the future; or
(iii)
the duty of the applicant 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 applicant
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 applicant:
(i)
reasonable prior notice of any application for a search warrant or an
order directing the applicant or the registrar to deliver
or release
any retained or returned item; and
(ii)
a reasonable opportunity to challenge in court any subpoena before
the applicant or the registrar is obliged to comply with
it.
(f)
The respondents must pay all costs of implementing the provisions of
this paragraph.’
[15] I have read the
judgments prepared in this matter by my colleagues Nugent and Ponnan
JJA. Inasmuch as the order I propose does
not carry the support of
the majority of the court and as the order set forth in paragraph 16
of Nugent JA’s judgment covers
to some extent the ground
covered by the order I think should be made I am prepared, in the
circumstances of this case, to concur
in that order.
_______________
IG FARLAM
JUDGE
OF APPEAL
CONCURRING
CLOETE JA
NUGENT
JA
:
[16]
I agree with my colleague Farlam that the registrar of the court
below should be authorised to retain, under seal, copies of
the
documents and material that were seized under the apparent authority
of the warrants (I will refer to the documents and material
collectively as the material) but not for the reasons that he gives
and on more limited terms than those that he proposes.
[17]
The appellants articulated their request for a preservation order in
a letter that was written by the State Attorney and placed
before us
shortly before this appeal was heard. The request was motivated on
two grounds. The first related only to material that
falls within the
terms of para 1 of the warrants. (That paragraph encompasses a narrow
category of material connected with a specific
written loan
agreement.) The appellants said that they want that material to be
preserved ‘for the ongoing investigation
into Mr Zuma and the
Thint companies and any possible future proceedings against them’.
(Mr Zuma, who was formerly a client
of the respondent, and the Thint
companies, are the appellants under case number 232/07). That means,
as I understand it, that
the appellants want the material to be
available to them, if they are able to obtain lawful access to it
(whether by a fresh warrant
authorising its seizure, or by the
authority of a court order) for the purpose of establishing whether
Mr Zuma or the Thint companies
have committed offences, or for
proving to a court in due course that they have committed offences.
[18]
I am not at all persuaded that this court (or any court) has the
power in law to make a preservation order for that purpose.
The
retention by the registrar of the material, or copies of the
material, even if that material is not viewed, will in my view
be a
continuing violation of the respondent’s privacy, which is
protected against violation by
s 14
of the Bill of Rights. I do not
think that privacy is violated only when private communications are
viewed by or exposed to viewing
by another. I think it is violated
just as much merely by dispossessing a person of control over
material that he or she is entitled
to hold in private. As Harms JA
said in
National
Media Ltd v Jooste
,
[1]
drawing upon the views expressed by J Neethling and JM Potgieter:
[2]
[‘T]he right to privacy
encompasses the competence of a person to determine the destiny of
his or her private facts.’
Van
der Westhuizen J expressed a similar view in
Prinsloo
v RCP Media Ltd t/a Rapport,
[3]
in relation to photographic images of matter that was private, when
he said that
‘
possession
of such images by someone who is not authorised by the original
author or those depicted on them could in principle amount
to an
ongoing violation or at least a continuing threat of violation of
one’s privacy’
though
I do not share his ambivalence as to whether that amounts to an
ongoing violation of privacy or whether it merely threatens
that a
future violation might occur. In my view a violation occurs when, and
for so long as, a person is dispossessed of control
over private
material.
[19]
The power of a court to authorise a continuing violation of protected
rights must be found within the four corners of the Constitution
if
it is to be found at all, for a court has no reservoir of power
outside the Constitution. The Constitution allows for the limitation
of protected rights (which will be the effect of granting a
preservation order) only if that is permitted by law of general
application
(and then only to the extent that the limitation is
reasonable and justifiable in an open and democratic society that is
based
on human dignity, equality and freedom, taking into account the
factors listed in s 36). There are numerous statutory instruments
that authorise an intrusion upon rights of privacy and property for
the purpose of investigating and prosecuting crime (none of
which are
material to this case) but I know of no law – whether it be the
common law or a statute or a provision of the Constitution
itself –
that confers a general discretion upon a court to do the same.
[20]
My colleague finds the source of this court’s authority to make
a preservation order for the purpose of investigating
and prosecuting
crime in the power that is given to it by ss 38 and 172(1) of
the Constitution to fashion remedies for constitutional
violations.
His view, as I understand it, is that those powers authorise a court
to deny full redress to the respondent for the
violation of her
constitutional rights if that will serve the broader public purpose
of prosecuting crime. (The views of my colleague
are expressed in his
judgment in
National
Director of Public Prosecutions & Others v Zuma & Another
which is delivered simultaneously with this judgment.)
[21]
It seems to me that the power to fashion remedies for constitutional
infringements is given to courts to enable them to vindicate
rights
rather than to deny them. As Ackerman J said in
Fose
v Minister of Safety and Security
:
[4]
‘
Appropriate
relief will in essence be relief that is required to protect and
enforce the Constitution. Depending on the circumstances
of each
particular case the relief may be a declaration of rights, an
interdict, a
mandamus
or
such other relief as may be required to ensure that the rights
enshrined in the Constitution are protected and enforced. If it
is
necessary to do so, the courts may even have to fashion new remedies
to secure the protection and enforcement of these all-important
rights.’
And
later:
[5]
‘
[I]t is
essential that on those occasions when the legal process does
establish that an infringement of an entrenched right has
occurred,
it be effectively vindicated. The courts have a particular
responsibility in this regard and are obliged to ‘forge
new
tools’ and shape innovative remedies, if needs be, to achieve
this goal.’
[22]
I am not persuaded that the power to fashion remedies to redress
constitutional violations are capable of being used to deny
such
redress so as to serve some other purpose. That is particularly so if
the purpose that is to be served by denying redress
is one that would
not have been capable of being achieved by a court had the violation
not occurred. For while it is true, as observed
by my colleague, that
the effective prosecution of crime is an important constitutional
objective, that by itself does not confer
a general discretion upon a
court to augment the panoply of tools that are available to the state
to achieve that objective. And
if a court has no general authority to
make an order that impinges upon a person’s privacy only
because it is useful to do
so in the interests of prosecuting crime
then I would find it remarkable that the violation by the state of
that privacy somehow
creates an authority that would not otherwise
exist.
[23]
He finds support for his view in two decisions from Canada that have
indeed permitted the preservation of unlawfully seized
material on
similar grounds, but I do not think that we need uncritically adopt
those decisions. Neither of those cases do more
than assert that a
court may make a preservation order but without pertinently
considering the question that concerns me and they
do not seem to me
to take the matter further.
[24]
In
Dobney
Foundry Ltd v Attorney General of Canada
[6]
Esson JA of the British Columbia Court of Appeal (in chambers on an
application for an order returning documents seized under a
quashed
search warrant) relied heavily on pre-Charter cases in support of his
decision. With regard to post-Charter decisions to
the contrary
[7]
the learned judge said, as pointed out by my colleague, that those
decisions
‘
rest
upon the premise that the purpose and effect of the Charter is to
elevate individual rights and freedoms to an absolute which
excludes
any consideration of competing values such as the desirability that
the criminal law be enforced’
and that that
approach
‘
ignores
the reality of the matter [namely that] the interests of the
community as a whole require that a reasonable balance be struck
between individual rights and community interest’.
The
learned judge of appeal seems simply to have assumed that protected
rights are capable of being encroached upon if only that
meets a
desire to enforce the criminal law or because it is considered that
community interests are served by doing so. Encroachments
of that
kind, for those and similar reasons, were once common in this
country. It seems to me that the very purpose of the Bill
of Rights
is to ensure that they do not recur by insisting that they are not
permissible unless they meet the criteria of s 36.
[25]
In
Re
Chapman and the Queen
,
[8]
referred to by Esson JA in
Dobney
,
the question whether the Charter had eclipsed the discretion of a
court, in the exercise of its inherent jurisdiction, to order
the
retention of documents unlawfully seized, was not pertinently
considered by the Ontario Court of Appeal. In
Re
Commodore Business Machines Ltd and Director of Investigation and
Research
[9]
the same court found, by a majority, that the judge in the court
below had ‘properly exercised his discretion derived from
s 24(1) of the [Canadian Charter]’
[10]
by permitting the respondents to retain copies of those documents
that had been unlawfully seized that were ‘necessary for
the
prosecution of the offences with which the appellant was charged’,
but again without pertinently considering whether
the judge had such
a discretion at all, basing itself rather on the decision of Esson JA
in
Dobney
.
I derive no assistance from the mere assertion of the proposition in
those cases.
[26]
But I do not think it is necessary to reach any firm conclusion on
that issue. Even if we had a discretion to make a preservation
order
for the purpose of preserving evidence for a prosecution I would not
do so in this case. I have already indicated that the
preservation
order was sought for that purpose by the appellants only in relation
to the limited class of material encompassed
by para 1 of each of the
warrants, and we have been given no reason why it might now have
become necessary to extend the order
to the remaining material (which
is what the order proposed by my colleague does) that was seized
without justification. It is
not clear that the material that was
seized includes anything that falls within the terms of para 1 of the
warrants but if there
is such material amongst the mass that was
seized under the apparent authority of the remaining paragraphs of
the warrants I do
not think it would be practically possible to now
separate the former from the latter with any degree of certainty and
without
exposing the rights of the respondent to the risk of further
violation. On that ground alone I would refuse to order the
preservation
of that material in isolation.
[27]
But there is also another purpose for which the appellants want the
material preserved, which applies to all the material,
including the
material that is covered by para 1 of the warrants, and that purpose
seems to me to place them on firmer ground.
[28]
The material that was seized under the apparent authority of the
warrants related to the affairs of Mr Zuma. The respondent
contends
that much of the material was protected against disclosure by legal
privilege. The present representatives of Mr Zuma
have already put
the appellants on notice that if their client is ever brought to
trial he intends to contest the ability of the
state to afford him a
fair trial because (so it is alleged) the prosecution has had access
to that privileged material.
[29] If that
objection is indeed taken at any trial that might yet occur then
clearly the correct identification of what was amongst
the documents
that were seized will be crucial to the just adjudication of the
objection. It is in that context that the State
Attorney’s
letter records that a further purpose for which the material should
be preserved is
‘
to
preserve a reliable record of everything seized because such a record
may be necessary if ever it should be contended in the
future in any
such proceedings that the searches entailed and resulted in an
unlawful invasion of legal professional privilege.’
What
is thus sought in that regard is not to preserve the material so that
its content may be used as evidence in any future prosecution
(a
purpose for which I have not been persuaded that a court has
authority to grant such an order) but rather to preserve the material
(or copies of the material) so that a court may in due course be in a
position to identify with certainty what material was seized
if the
identity of the material becomes contentious in any future trial.
[30]
In
Shoba
v Officer Commanding, Temporary Police Camp, Wagendrift Dam
,
[11]
which was decided before the present Constitution took effect, this
court drew upon what was then inherent power vesting in the
superior
courts to hold that a court was entitled to order the preservation of
evidence that is vital to substantiate a legal claim.
[12]
That case was decided in the context of what has become known as an
‘Anton Piller order’ but the principle upon which
it was
decided does not seem to me to be confined to an order of that kind.
I think the decision in that case reflected no more
than an
application of a broader principle that allowed a court, in the
exercise of its inherent powers, and in furtherance of
the proper
administration of justice, to preserve evidence that was vital for
the just resolution by a court of a potential legal
dispute. For
earlier, in
Universal
City Studios,
[13]
the
court had said the following (in that case it found it unnecessary to
pronounce finally on the matter but it was effectively
endorsed by
the later decision in
Shoba
):
‘
There
is no doubt that the Supreme court possesses an inherent reservoir of
power to regulate its procedures in the interests of
the proper
administration of justice…It is probably true that, as
remarked in the
Cerebos
Food
case,
[14]
that the Court does not have an inherent power to create substantive
law, but the dividing line between substantive and adjectival
law is
not always an easy one to draw…In a case where the applicant
can establish
prima
facie
that he has a cause of action against the respondent which he intends
to pursue, that the respondent has in his possession specific
documents or things which constitute vital evidence in substantiation
of the applicant’s cause of action (but in respect
of which the
applicant can claim no real or personal right), that there is a real
and well-founded apprehension that this evidence
may be hidden or
destroyed or in some manner spirited away by the time the case comes
to trial, or at any rate to the stage of
discovery, and the applicant
asks the Court to make an order designed to preserve the evidence in
some way, is the Court obliged
to adopt a
non
possumus
attitude? Especially if there is no feasible alternative? I am
inclined to think not. It would certainly expose a grave defect
in
our system of justice if it were to be found that in circumstances
such as these the Court were powerless to act. Fortunately
I am not
persuaded that it would be. An order whereby the evidence was in some
way recorded, eg by copying documents or photographing
things or even
by placing them temporarily, ie
pendente
lite
,
in the custody of a third party would not, in my view, be beyond the
inherent powers of the Court.
[15]
Although
expressed in relation to a civil claim I can see no reason why that
inherent power would not similarly have been available
to ensure the
proper administration of justice in relation to a potential dispute
between parties to litigation of the kind that
is now in issue.
[31]
Those powers of a court that existed before the Constitution took
effect seem to me to be preserved by s 34 of the Constitution.
That
section accords to everyone (which includes the state) the right,
amongst others, to have any dispute that can be resolved
by the
application of law decided in a fair hearing.
[16]
I have little doubt that the right to a fair hearing before a court
of law includes the right to have factual disputes resolved
expeditiously and justly. That seems to me to provide ample authority
to a court in appropriate circumstances to order the preservation
of
evidence so as to achieve that end. Indeed, it seems to me that a
court, which is under a constitutional duty to ensure that
legal
disputes are resolved fairly and justly, may order the preservation
of evidence on its own initiative if that will serve
the proper
administration of justice.
[32]
It is not necessary for present purposes to delineate the boundaries
within which those powers may be exercised by a court.
It is
sufficient to say that where the exercise of those powers intrudes
upon other protected rights, as the making of a preservation
order
will do in this case, a court is bound to exercise those powers only
within the constraints of s 36. That requires the
benefit that
will flow from allowing the intrusion upon protected rights to be
weighed against the loss that the intrusion will
entail, and only if
the loss is outweighed by the benefit to an extent that meets the
standard that is set by s 36 will it be permitted
to order the
intrusion.
[17]
[33]
It goes without saying that the application of those principles in
this case amply justifies the grant of a preservation order.
The
limitation that such an order will place upon the respondent’s
right to privacy is negligible and ought not to be detrimental
in
practical terms to the full enjoyment of her right to privacy,
bearing in mind that the material is to be held by the registrar
under lock and key unless a court orders otherwise. On the other hand
the benefit to the expeditious and just resolution of any
dispute
that a court might be called upon to resolve concerning the identity
of the material that was seized is self-evident and
enormous. That
benefit to the fair and just resolution of the possible dispute
clearly outweighs the loss to the respondent to
an extent that meets
the standard that is set by s 36.
[34]
In my view an order should be made for the preservation of the
material that was seized under the warrants (or copies of the
material) but only for that narrow purpose. Accordingly the
following orders are made:
A. Save as set out
in B below the appeal is dismissed with costs that include the costs
occasioned by two counsel.
B.
The order of the court below is varied by the deletion of paragraphs
3, 4, 5 and 6 and the substitution of the following:
‘
3.
Subject to paragraph 4 below the material that was seized from the
applicant pursuant to the warrants is to be retained under
seal in
the custody of the Registrar of the High Court at Johannesburg on the
terms set out in the remainder of this order until
such time as the
registrar is notified in writing by the National Director of Public
Prosecutions that the material may be returned
to the respondent or
until a court authorises its return.
4.
At the election of the
respondent and at the cost of the National Director of Public
Prosecutions
(a) the registrar or
an independent person acting under the supervision of the registrar
may, in the presence of a representative
of the National Director of
Public Prosecutions and of the respondent, make one copy of all or
any of the documents that are in
the custody of the registrar
pursuant to this order
(b)
an independent expert
appointed by the registrar may, under the supervision of the
registrar, and in the presence of a representative
of the National
Director of Public Prosecutions and of the respondent, make one image
of all or any computer material that is in
the custody of the
registrar pursuant to this order
whereupon the
documents or material that have been copied shall be returned by the
registrar to the respondent, provided that the
copies or images are
substituted therefor and are retained in the custody of the registrar
on the terms contained in this order.
5.
Other than for the
purpose of enabling copies to be made as set out in paragraph 4 above
nobody may have access to the material
that is in the custody of the
registrar except in the circumstances set out in paragraph 6 below.
6.
Any court may in its
discretion order that the material in the custody of the registrar
pursuant to this order be produced to it
but only if the identity of
the material that was seized under the warrants is placed in issue in
proceedings before it and for
the purpose of resolving that issue.
7.
Except under an order
made pursuant to paragraph 6 the material in the custody of the
registrar shall not be liable to be seized
from the registrar under
any law.
8.
The respondent is to
pay the costs of the application.’
____________________
R.W. NUGENT
JUDGE OF APPEAL
MLAMBO
JA concurs
FARLAM
JA and CLOETE JA concur in the order.
PONNAN
JA:
[35]
I have had the opportunity of reading the judgments of my colleagues
Farlam and Nugent and whilst I agree that the appeal must
be
dismissed with costs including those consequent upon the employment
of two counsel, I regretfully cannot agree that the seized
items
should be retained in the hands of the Registrar. Ordinarily,
once the seizure of goods is unlawful, so no doubt is
their
consequent retention.
[18]
And
the person to whom the articles must be returned is the person from
whom they were seized, provided that she may lawfully possess
them.
[19]
We are called
upon to decide whether that rule should in this case be modified so
as to preserve, in the hands of the Registrar,
the articles so
seized.
[36]
‘The task of combating crime and convicting the guilty’,
according to Brennan J, ‘will in every era seem
of such a
critical and pressing concern that we may be lured by the temptations
of expediency into forsaking our commitment to
protecting individual
liberty and privacy.’
[20]
The right of search, without which all searches are illegal, is a
right created by statute.
[21]
The right to enter premises, search those premises and remove goods
therefrom is a significant invasion of the rights of an individual
and must therefore be exercised within certain clearly defined limits
so as to interfere as little as possible with the rights
and
liberties of the person concerned.
[22]
The essence of the constitutional right in question in this case is
the right not to be subjected to unreasonable intrusions into
the
privacy of one’s home, papers or effects. The wrong
condemned is the unjustified invasion of those areas of an
individual’s life. And that was accomplished in this case
by the original search and seizure, which it is now conceded
was
unlawful. Seizures are executed principally to secure evidence.
The evidence-gathering role of the police is thus directly
linked to
the evidence-admitting function of the courts. An individual’s
rights may thus be undermined as drastically by
the one as by the
other.
[37]
The State, whilst now repudiating the search and seizure as illegal,
seeks to maintain some right to avail itself of the knowledge
obtained by that means which knowledge it otherwise would not have
had. It thus derives for itself an advantage from acting
unlawfully that it would not have secured had it not acted at all.
The right to be free from the initial invasion of privacy and
the
right to return of articles so seized are, to my mind, interlinked
components of the central embracing right to be free from
unlawful
searches and seizures. The effect of recognising the right is
to put both seizing authorities as well as courts
under limitations
and restraints on the exercise of their power and authority. Whence,
it must be asked, does a court derive its
power to make the order
sought by the State in this case? If documents unlawfully seized can
be held in the manner postulated by
the State, the protection
afforded by the right to be secure from unlawful searches and
seizures is of little, if any, value.
To hold otherwise is to
recognise the right in theory, but in reality to withhold its
protection and enjoyment. Recognition
of the right plainly
operates to deter the State from gathering information and securing
evidence in certain ways.
[38]
It is the duty of a court to attempt to restore the
status
quo
that
would have prevailed if the constitutional requirement had been
obeyed. The conduct of the State in this case amounted to nothing
less than a naked invasion of the privacy of the respondent’s
home and office without the requisite justification demanded
by the
Constitution. She thus has a right grounded in the Constitution to
the return of the articles unlawfully seized from her.
The State now
admits that the substance as well as the letter of the Constitution
was violated. The rule that the parties
be restored to the
status
ante quo
is designed to prevent violations of the Constitution. Its
purpose is to compel respect for the guarantees enshrined in it
in
the only effectively available way, namely, by removing the incentive
to disregard it. For, as stated by Justice Jackson,
‘uncontrolled search and seizure is one of the first and most
effective weapons in the arsenal of every arbitrary government’.
[23]
[39]
If the courts were to simply escape their responsibility for
redressing constitutional violations, people will be secure only
in
the discretion of the police and the protections of the right would
evaporate. After all, the entire point of the police conduct
in this
case that violated constitutional guarantees was to obtain evidence
for use at a possible subsequent criminal trial.
The Bill of
Rights must not be reduced to a code that the State may abide in its
discretion. The Constitution requires more;
it demands a remedy
for a violation. That remedy, one would have thought, is
well-settled. But, says the State in this case, there
now exists a
constitutional injunction to reconsider existing remedies and to
re-fashion them in accordance with the spirit of
our new
constitutional order. To my mind, there is a fallacy in that
approach. It is this: Out of a remedy available to someone
wronged by
a rights violation, the wrongdoer seeks to fashion for itself a right
that it otherwise would not have had.
[24]
That can hardly be authorised by our Constitution. Moreover, the
preservation order is being sought in this case in anticipation
of
possible criminal proceedings, not against the respondent, but
against her erstwhile client, Mr Zuma. How, it must be asked,
can the
State resist a claim for restoration where the items were illegally
seized and where, even at the date of the hearing of
this appeal,
there has been no firm commitment by it that fresh charges will as a
fact be preferred against Mr Zuma in regard to
which the seized items
might be used by it as evidence?
[40]
If the search and seizure in this case are unlawful as invading
personal rights secured by the Constitution, those rights would
be
infringed yet further if the evidence were allowed to be used even to
the limited extent postulated by the State. Excluding
evidence is
more often than not a necessary corollary of the right and affords a
means of extending protection to a citizen, particularly
- as in this
matter - where the State is itself the invader. Moreover, there
is usually no way in which a citizen can invoke
advance protection
because a search and seizure by its very nature is usually
perpetrated without prior warning and conducted in
haste. The
protection afforded by the right would be greatly impaired unless all
of the evidence unlawfully obtained from
Ms Mahomed were to be
returned to her.
[41]
In contemplating the novelty of the step urged upon us in this case,
I sought, but was unable to derive any assistance from
Shoba.
[25]
Shoba
considered
whether an
Anton
Piller
order directed at the preservation of evidence should be accepted as
part of our practice. That question it answered in the affirmative.
One of the basic purposes of that interlocutory measure, the essence
of which is the element of surprise, is to preserve for a
contemplated trial, evidence in the hands of the prospective
defendant. Such an order is applied for ex parte, usually in camera
and without notice to the respondent. The requirements for its grant
are fairly stringent.
[26]
Given its draconian nature it can and often does produce for a
litigant, without his/her being heard, damaging and irreversible
consequences.
[27]
In my
respectful view, for the reasons that follow, the analogy with
Shoba
is less than perfect. First, in
Shoba,
it
was the wronged - not the wrongdoer (as here) - who invoked the
assistance of the court. Second, in
Shoba
,
a private individual, who asserted a cause of action, sought to
preserve by means of an order of court, vital evidence required
by
him in substantiation of that cause of action. Third, the purpose for
which the order was sought in
Shoba
was to redress an asserted civil wrong. To my mind, it is doubtful
whether such an order can issue to the police in criminal
proceedings.
[28]
After
all, that, it seems to me, is the very purpose for which search
warrants issue. Fourth, an
Anton
Piller
order operates
pendente
lite
and the contemplated action must commence by the issue of summons
within a specified time fixed by the order itself, failing which
it
shall lapse, spawning perhaps an action for damages. In this matter
as I have already stated, we are forced to engage in speculation
and
conjecture as to when and whether criminal charges will in fact be
preferred against Mr Zuma.
[42]
Legitimate limitations on a constitutional right must occur through
and be justified under the prescribed criteria in s 36
of the
Constitution and not by giving a restricted definition to the right.
Constitutional rights, as far as is possible, must
be given a broad
and generous interpretation. That is not to suggest that they are
unlimited. The limitation of a constitutional
right for a
purpose that is reasonable and justifiable in an open and democratic
society involves the weighing up of competing
values and ultimately
an assessment based on proportionality.
[29]
The right here under consideration operates as a powerful bulwark
against State excesses. Well what then of the sufficiency
of
the evidence in this case to justify the limitation? The short
answer, I am afraid, is that it falls woefully short of what
would
ordinarily be required. The thrust of the State case before the court
below as encapsulated in paragraph 2 of its answering
affidavit, was:
‘At the outset I respectfully submit that the [State] was
entirely justified in obtaining the warrants in
the manner in which
they did. Having regard to the supporting affidavits filed herewith I
further respectfully submit that the
warrants were executed in a
professional and lawful manner in accordance with the requirements of
the Act’. The postulated
relief thus arose very much as an
afterthought and has not in truth therefore been fully and properly
ventilated on the papers.
At that preliminary hurdle as well, the
State must therefore also fail, for absent a full factual matrix, the
envisaged proportionality
exercise can hardly be undertaken, much
less resolved in its favour.
[43]
In order to restore both parties to the position they would have
occupied had the unconstitutional search not have occurred,
it is
necessary that the seized items be restored to the possession of the
respondent. This finding is of course no bar to the
State proceeding
duly and regularly when and if so advised.
_________________
V
M PONNAN
JUDGE OF APPEAL
[1]
[1996] ZASCA 24
;
1996
(3) SA 262
(A) 271G.
[2]
J
Neethling and JM Potgieter: ‘Aspekte van die Reg op
Privaatheid’
1994 (57) THRHR 703
at 706. See, too,
Neethling’s
Law of Personality
2 ed
by J Neethling, JM Potgieter and PJ Visser p. 237; J Neethling ‘The
Protection of the Right to Privacy Against
Fixation of Private
Facts’
(2004) 121 SALJ 519.
Wille’s
Principles of South African Law
9 ed 1200 fn 228;
The
Bill of Rights Handbook
5 ed by Iain Currie and Johan de Waal 14.3.
[3]
2003
(4) SA 456
(T) 468G-H.
[4]
[1997] ZACC 6
;
1997
(3) SA 786
(CC) para 19.
[5]
Para
69.
[6]
Reported
under the name
Dobney
Foundry Ltd v The Queen (2)
in (1985) 19 CCC (3d) 465. Because those reports are not available
to me I have used the judgment issued by Westlaw.
[7]
Cited
at para 16 of the judgment.
[8]
(1984)
12 CCC (3d) 1.
[9]
(1988)
50 DLR (4
th
)
559.
[10]
‘
24(1)
Anyone whose rights or 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’.
[11]
Shoba
v Officer Commanding, Temporary Police Camp, Wagendrift Dam;
Maphanga v Officer Commanding, South African Police Murder
and
Robbery Unit, Pietermaritzburg
1995
(4) SA 1 (A).
[12]
The
requirements for such an order were set out at p. 15H-I.
[13]
Universal
City Studios Inc v Network Video (Pty) Ltd
[1986] ZASCA 3
;
1986
(2) SA 734
(A) at 754 G-755E.
[14]
Cerebos
Food Corporation Ltd v Diverse Foods SA (Pty) Ltd
1984
(4) SA 149
(T) at 173E.
[15]
In
Shoba
at p. 16D the court expressly overruled decisions to the contrary in
Economic
Data Processing (Pty) v Pentreath
1984 (2) SA 605
(W),
Cerebos
Food
(above) and
Trade
Fairs and Promotions (Pty) Ltd v Thomson
1984 (4) SA 177
(W) (to the extent that they were in conflict with
its decision in
Shoba
).
[16]
Section
34: ‘Everyone has the right to have any dispute that can be
resolved by the application of law decided in a fair
public hearing
before a court or, where appropriate, another independent and
impartial tribunal or forum.’
[17]
See
O’Regan J and Cameron AJ in a passage from their dissenting
judgment in
S
v Manamela (Director-General of Justice Intervening)
2000
(3) SA 1
(CC) para 66 that received the approval of the majority;
Midi
Television
(Pty) Ltd v Director of Public Prosecutions
[2007]
SCA 56 (RSA);
[2007] 3 All SA 318
(SCA) paras 10 and 11.
[18]
Ndabeni
v Minister of Law and Order
1984 (3) SA 500
(D) at 503G;
Pullen
NO, Bartman NO & Orr NO v Waja
1929
TPD 838
at 852;
Hertzfelder
v Attorney General
1907 TS 403
at 406.
[19]
Minister
van Wet en Orde v Datnis Motors (Midlands) (Edms) Bpk
1989
(1) SA 926
(A);
Minister
van Wet en Orde v Erasmus
[1992] ZASCA 100
;
1992
(3) SA 819
(A);
Pullen
NO, Bartman NO & Orr NO v Waja
at
852.
[20]
Dissenting
in
United
States
v
Leon
[1984] USSC 201
;
468
US 897
(1984) at 929.
[21]
Pullen
at 859 and 862;
Hertzfelder
at 404.
[22]
Pullen
at
861;
De
Wet v Willers NO
1953
(4) SA 124
(T) at 127B-C.
[23]
Dissenting
in
Brinegar
v United States
[1949] USSC 103
;
338
US 160
(1949) at 180.
[24]
See
para 7 of Nugent JA’s judgment.
[25]
Cited
in para 12 of Nugent JA’s judgment.
[26]
Shoba
at 15H-I;
Chappell
v United Kingdom
(1990)
12 EHRR 1
para 16.
[27]
Chappell
para
24.
[28]
Chappell
para
18.
[29]
S
v Makwanyane
[1995] ZACC 3
;
1995
(3) SA 391
(CC) at para104.