About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2007
>>
[2007] ZASCA 139
|
|
Minister of Safety and Security and Others v Bennett and Others (302/06) [2007] ZASCA 139; 2009 (2) SACR 17 (SCA); 2007 JDR 1138 (SCA); [2008] 2 All SA 26 (SCA) (8 November 2007)
Links to summary
REPUBLIC
OF SOUTH AFRICA
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case number: 302/06
Reportable
In
the matter between:
THE
MINISTER OF SAFETY AND
SECURITY FIRST
APPELLANT
THE
COMMANDING OFFICER SERIOUS
ECONOMIC
OFFENCES
UNIT SECOND
APPELLANT
D
H S
SMITH THIRD
APPELLANT
and
S
H
BENNETT FIRST
RESPONDENT
G
P
PORRITT SECOND
RESPONDENT
SYNERGY
MANAGEMENT (PTY)
LTD THIRD
RESPONDENT
MAJORSHELF
117 (PTY)
LTD FOURTH
RESPONDENT
A
DATHOO
N.O FIFTH
RESPONDENT
J
U E BUYTENDAG
N.O SIXTH
RESPONDENT
B
M MTBELE
N.O SEVENTH
RESPONDENT
CORAM
:
FARLAM, NUGENT, CLOETE, PONNAN et MLAMBO JJA
HEARD
:
3 MAY 2007
DELIVERED
:
8 NOVEMBER 2007
SUMMARY:
Search and
seizure – whether execution of warrants issued in terms of s 21
of
Criminal Procedure Act 51 of 1977
invalid – whether seizure
of documents covered by warrant invalidated by simultaneous seizure
at the same time of privileged
documents not covered thereby.
Neutral
citation: This judgment may be referred to as
Minister of Safety
and Security v Bennett
[2007] SCA 139 (RSA).
JUDGMENT
FARLAM JA
[1]
This is an appeal against a decision by Bertelsmann J, sitting in the
Pretoria High Court, in which, amongst other things, he
declared the
execution of certain search warrants to have been performed in an
unconstitutional and unlawful fashion and ordered
the return of all
documents removed in terms of the warrants.
[2]
The respondents in this matter, Susan Hilary Bennett, a businesswoman
of Johannesburg, Gary Patrick Porritt, a businessman of
Johannesburg
and two companies at whose premises searches authorized by the
warrants took place, applied to the Pretoria High Court
for, amongst
other things, orders (1) setting aside search warrants issued by
magistrates in Pietermaritzburg, Kokstad and Johannesburg,
(2)
directing the appellants, the Minister of Safety and Security, the
commanding officer of the Serious Economic Offences Unit
of the South
African Police Services and a member of the unit, who is the
investigating officer in a criminal case pending against
the
respondents, to return all documents, data and other property seized
pursuant to the warrants and (3) interdicting the appellants
from
utilizing any of the documents, other property seized pursuant to the
warrants or copies or reproductions thereof or information
derived
therefrom.
[3]
Bertelsmann J refused to set aside the warrants holding that they
were validly issued. He also refused to interdict the use
at the
trial of the respondents of the documents, data or other property or
copies or reproductions or information therefrom, holding
in this
regard that the trial court would be in a better position to decide
on the admissibility of evidence derived from the execution
of the
warrants. The respondents have not cross appealed against his refusal
to set the warrants aside or to interdict evidence
obtained pursuant
to the execution thereof.
[4]
The learned judge did, however, as I have said, grant an order
declaring the execution of the warrants to have been performed
in an
unconstitutional and unlawful fashion as well as directing the
appellants to return to the respondents all documents removed
in
terms of the warrants. In addition to ordering the appellants to pay
the costs he made a declaration that the appellants were
entitled, at
their own expense, to make copies of all documents they had removed
in terms of the warrants, other than privileged
documentation, and
ordered that such copies prepared by the appellants had to be placed
in sealed boxes and handed to the Registrar
of the Johannesburg High
Court for safekeeping, pending a decision by the trial court as to
the admissibility of individual documents.
[5]
The second respondent was arrested on various charges of fraud and
contravening the Income Tax Act in December 2002. The first
appellant
was arrested on the same charges in March 2003.
[6] They are to
stand trial in the Johannesburg High Court on an indictment
containing over 3 000 counts of fraud and contraventions
of various
provisions of the Income Tax Act, the Companies Act, the Stock
Exchanges Control Act, the Exchange Control Regulations
and the
Prevention of Organised Crime Act.
[7]
On 24 March 2005 members of the South African Police Service, acting
in terms of search warrants issued on 23 and 24 March 2005
under
s 21
of the
Criminal Procedure Act 51 of 1977
, searched premises at 218
Boom Street, Pietermaritzburg, Hlani Farm, Swartberg, and 32 Delta
Road, Elton Hill, Johannesburg and
seized some 400 000 documents. The
documents seized were marked with reference to the identification of
the files in which they
were bound and placed in boxes which were
sealed.
[8]
At the time of the search and seizure at Boom Street,
Pietermaritzburg, an attorney, Mr TP Reed, who acted on behalf of the
respondents, was present and participated in a discussion with the
third appellant and Director Van Graan, another representative
of the
South African Police Service, relating to the procedure to be
followed with regard to the documents seized. The marking
of the
documents and their being placed in sealed boxes took place in
accordance with an agreement concluded then and there between
Mr Reed
and the third appellant and Director Van Graan. It was also agreed
that Mr Reed could be present when the seals were removed
so that he
could satisfy himself that the documents had not been tampered with.
[9]
During the discussion between Mr Reed and Director Van Graan and the
third appellant it was never suggested that privileged
documents were
involved.
[10]
Subsequent to the seizure of the documents the first and second
respondents brought an application in Pretoria High Court for
an
order interdicting the first appellant from opening the sealed boxes
containing the seized documents, pending the outcome of
an
application for the setting aside of the warrants. In the founding
affidavit in that application it was stated for the first
time that
privileged documents had been seized. This allegation was confined to
the documents seized at Delta Road, Elton Hill,
Johannesburg.
[11]
The application for an interdict was dismissed by Van der Merwe J on
13 May 2005. In his judgment he found that the warrants
had been
lawfully issued and executed.
[12]
Thereafter the State Attorney, acting on behalf of the appellants,
invited the first and second respondents to engage in a
process with
an independent advocate appointed on behalf of the Police Service in
order to identify privileged or possibly privileged
documents. In
terms of the process the advocate and the first and second
respondents were to be present when the boxes were opened,
privileged
documents were to be identified and immediately handed over to the
first and second respondents. No members of the Police
Service were
to participate in the process. This process was agreed to. It
extended over the period from 23 May to 2 June 2005.
In total 18 000
pages of privileged documents were identified and handed over to the
first and second respondents. On all days
except the last either the
first or the second respondent was present with the independent
advocate when the boxes were opened.
[13]
On 3 June 2005, the day after the identification process ended, the
first and second respondents (to whom I shall refer in
what follows
as ‘the respondents’) brought an application,
inter
alia,
for an order
authorising them to make copies of all documents seized,
alternatively to have access to the process of paginating
and
inventorising them. In this application they alleged for the first
time that privileged documents had also been seized at Boom
Street
and Loop Street, Pietermaritzburg.
[14]
On 11 August 2005 the respondents brought the application forming the
subject of the present appeal. As I have said the respondents
did not
obtain the relief they had sought in relation to the alleged validity
of the warrants or an exclusion of information obtained
thereunder at
their trial but they did obtain an order for the return of all the
documents seized, whether or not they were privileged.
(The
appellants had tendered return of all privileged documentation, in so
far as it had not already been returned.)
[15] The portion of
the judgment dealing with the return of the documents, even though
not covered by privilege, reads as follows:
‘
61. The
removal of the privileged documentation was intentional in the sense
that the police were informed, while they were executing
the
warrants, by applicants’ attorney that privileged documents
were among the vast mound of paper that was removed. None
of the
items identified as privileged were inspected by the police. They
have remained sealed.
62. But the removal of privileged
documentation remains a very serious matter. It infringes the right
to legal representation and
to attorney-client confidentiality,
regardless of whether the documents were inspected and considered by
the State and the police
or not.
63. The removal of privileged
documents was never authorized by the warrants. A warrant must be
strictly interpreted – this
is trite: See section 14 of the
Constitution 108 of 1996;
Powell NO and Others v Van der Merwe NO
and Others
2005 (1) SACR 317
(SCA) and the comprehensive
discussion of the authorities therein;
Cheadle, Thompson and
Haysom and Others v Minister of Law and Order and Others
1986 (2)
SA 279
(W);
De Wet and Others v Willers NO and Another
1953
(4) SA 124
(T).
64. The
applicants demand the return of all items seized in the operation
that was tainted by the removal of the privileged documents,
as well
as a blanket interdict against the use thereof in all future
proceedings, in particular the criminal trial that is about
to start
next year. Grave as the infringement of the right to protection of
privileged communications is, I am not convinced that
the future
proceedings have been irreparably tainted to the extent that the
entire criminal trial with all its thousands of charges
can at this
stage already be said to be unfair under any circumstances. There is
no evidence that the privileged papers were ever
read by any police
officer or State official. Although the warrants were carried out
unlawfully, and although all documents removed
in terms of the
warrants must therefore be returned to the applicants, it is normally
the prerogative of the trial court to decide
whether any evidence
that would otherwise be admissible but was obtained
unconstitutionally, should nonetheless be admitted in
the interests
of justice.’
[16]
Counsel for the appellants contended that the Court
a
quo
misdirected
itself in a number of respects and that its decision that the
warrants had been executed in an unconstitutional and
unlawful
fashion was incorrect. In particular they submitted that the court’s
finding that members of the Police Services
intentionally removed
privileged documents, which was clearly the basis of its decision on
this part of the case, was not supported
by the evidence before it.
It will be recalled that the judge said that ‘the removal of
the privileged material was intentional
in
the sense that the police were informed, while they were executing
the warrants, by [the respondents’] attorney that privileged
documents were among the vast mound of paper that was removed.’
(The emphasis is
mine.)
[17] It is clear
that this statement refers to what Mr Reed, the attorney who was then
acting for the respondents, said to the third
appellant and Director
Van Graan when the search warrant relating to the premises in Boom
Street, Pietermaritzburg, was being executed.
The respondents’
own version of what happened then is set out in a letter addressed by
the attorneys presently acting for
the respondents to the State
Attorney on 17 May 2005, the material portions of which read as
follows:
‘
4.1
Attorney Reed saw Superintendent Smith [the third appellant] at the
Boom Street premises shortly after the SAPS had arrived
to commence
their search and seizure. He saw that members of the SAPS were
putting quantities of files into boxes and told Superintendent
Smith
that he required a full index of every document taken. Superintendent
Smith said he would do so and would place the items
in boxes which
would be sealed and the boxes would be opened at their office in
Pretoria on Wednesday, 30 March 2005. He said that
Mr Porritt or any
person authorised by Mr Porritt may be present. . . .
4.2
Superintendent Smith and Director van Graan later came to see
Attorney Reed at his offices (which are just up the street) and
said
that they did not have time to go through all the documents and that
they were simply going to issue an index indicating the
number of
lever arch files removed. They stated, however, that our clients
would not be prejudiced as they could be present or
could have a
representative present when the boxes were opened in Pretoria and a
proper inventory drawn up. . . .
4.3 On the
basis of their concession that they did not have time to go through
all the documents and without prejudice to the rights
of our clients,
Attorney Reed accepted the offer that our clients or their
representatives could be present when the boxes were
opened; however,
he insisted on an index being issued by the SAPS indicating the
subject matter of each file. Director van Graan
and Superintendent
Smith agreed to let him have this and again stated that, in any
event, our clients and/or their representatives
could be present at
the opening of the boxes. . . .
4.4 It was
Attorney Reed’s clear understanding that this agreement applied
to the opening of all the boxes sealed during the
various search and
seizure operations.
4.5
Attorney Reed then spoke to Mrs Bennett
[the first respondent] . . .
4.6
Attorney Reed then informed Director van
Graan and Superintendent Smith that Mrs Bennett would not be
available on 30 March 2005
as she was involved in a court case.
Attorney Reed was informed by them that if Mrs Bennett could not be
present then she could
arrange for someone else to represent her.
Attorney Reed thereupon stated to Director van Graan and
Superintendent Smith that this
was impractical as only Mrs Bennett
and Mr Porritt (and not someone who had no experience of the matter)
could properly say what
documents were covered by the warrants or
not. . . .
4.7
The offer made by Superintendent Smith and
Director van Graan was unconditional and was given on the basis that
they accepted that
the search and seizure operations were being
carried out without the presence of our clients and that all the
documents being removed
had not been properly examined or inventoried
and may not be covered by the warrants. It was understood that any
prejudice suffered
by our clients could be mitigated by their being
present when the sealed boxes were opened.’
[18]
It is clear that the existence of privileged documents was
not
mentioned by Mr
Reed to the members of the Police Service who were executing the
warrants.
[19] The matter is
taken further in a letter written on 22 May 2005 by Mr Harry
Pretorius, another attorney who acted at one stage
on behalf of the
respondents, in which the following appears:
’
10.
With regard to privilege, if our clients had been present at the
search and seizure operations, they would have been able to
claim
privilege over any articles at the time, which could then have been
placed in a sealed box pending an agreement as to how
these articles
would be handled.
11. However,
this did not happen because your client deliberately chose to carry
out their operations on the late morning before
the Easter weekend,
when any reasonable person would have known that it was likely that
our clients would not be present at the
premises and that their legal
representatives would also not be available. In any case, it would
have been impossible for our clients
to have been in seven different
locations at the same time, and they were thus denied their right to
claim privilege at the time
of the search and seizure.
12. Attorney
Tommy Reed, who was consulted at the Boom Street premises but did not
attend during the entire operation as he too
was leaving for the
Easter weekend, was the only person who had any knowledge of the
concept of privilege. However, he has stated
that only our clients
would know what documents were privileged or not.
13. The
persons who were present at the four premises when documents were
seized had no such knowledge of the concept of privilege
or that it
could be claimed, or indeed what documents could be claimed as being
privileged. Such persons were the domestic worker
employed by Sue
Bennett (and not the businesses) at Delta Road, the farm manager at
Hlani Farm, John Robinson (an estate agent)
at Loop Street, and the
receptionist and two bookkeeping staff at Boom Street.
14. In any
event, we do not believe that anyone other than our clients can have
had the requisite knowledge of the facts in order
to claim privilege
at the time of the seizures. In this respect, it should be noted that
Mrs Bennett has not had sight of stacks
of the documents seized in
Pietermaritzburg – only Mr Porritt has – so she would
also have to check with Mr Porritt
on what can be claimed as
privileged.’
[20]
This statement makes it clear beyond any doubt that privilege was not
claimed at the time of the search and seizure at any
of the four
places where the warrants were executed.
[21]
In the circumstances I am satisfied that the basis for the court
a
quo’s
finding
that the warrants were executed in an unconstitutional and unlawful
manner was incorrect. The members of the police service
adopted the
procedure they did with the consent of the respondents’
attorney, Mr Reed. This procedure was designed to ensure
that the
respondents would not be prejudiced in any way. The attorney and
client privilege was not in fact breached because the
privileged
documents remained sealed in the boxes until identified, whereupon
they were forthwith handed to the respondents. Not
a single document
was read by any member of the Police Service or any other State
official.
[22]
Counsel for the respondents contended, however, that what they called
the
animus
of
the police when executing the warrants was not relevant when the
lawfulness of the execution of the warrants was under consideration
in a case such as the present when privileged documents were seized.
They contended further that the fact that the documents once
seized
were put in sealed boxes and not read by the police was also
irrelevant.
[23]
Counsel stressed that the warrants did not authorise the seizure of
privileged documents and that in seizing such documents
(even though
they were not read and were kept in sealed boxes until identified and
handed over in terms of the process summarised
above) the police had
acted beyond the terms of the warrant. Counsel went so far as to
submit that the seizure of one privileged
document rendered the whole
execution of the warrant in question invalid with the result that all
documents seized thereunder had
to be returned even if they were
covered by the express terms of the warrant. It was contended that
this result flowed from the
fact that the attorney and client
privilege, for obvious and cogent reasons, enjoys a high degree of
protection under our law.
It was conceded that no authority could be
found either in our system or in other jurisdictions supporting the
proposition contended
for but it was argued that it was necessary
from a policy point of view for such a ruling to be made. Counsel
also contended that,
although this was not the law before the
Constitution came into force, the strong adherence to the principle
of legality which
characterises our law under the Constitution means
that the law is now different. It was also argued that, if this were
not so,
the door would be opened to what were described as cavalier
searches with no practical restrictions. Once they had a search
warrant
the police could enter premises, seize whatever took their
fancy, sort it at their leisure and hand back what was not covered by
the warrant: there would be no effective sanction to prevent such
behaviour.
[24]
In my view this argument is devoid of merit. I can think (without
intending to cover the whole field) of various sanctions
which could
be invoked against conduct of the kind described, namely delictual
actions for damages and disciplinary steps against
the police
officers concerned.
[25]
In any event it is difficult to see how considerations of that kind
can operate in a case such as the present where the police
officers
concerned acted in the way they did with the consent of the
respondents’ attorney and the authorities went out of
their way
to devise and implement a process to prevent prejudice to the
respondents.
[26]
Nor is it clear why documents covered by a valid search warrant and
seized in execution thereof should be regarded as having
been
unlawfully seized merely because privileged documents, which
ex
hypothesi
were not
covered by the warrant, were also seized. Regard being had to the
judge’s order to the effect that the State could
copy the
documents not covered by privilege and lodge them for safe keeping
with the Registrar of the Johannesburg High Court (which
order was
not challenged on appeal before us) it is difficult to see how the
resultant practical problems the State would encounter
in trying to
use the documents could be regarded as a sanction, effective or
otherwise, against the police who seized the privileged
documents in
the circumstances described.
[27]
In the circumstances I am satisfied that the appeal must succeed and
that the judgment of the court
a
quo
cannot be
upheld.
[28]
As regards costs no costs order was made in the court
a
quo
and counsel for
the appellants did not contend that if the appeal succeeded, the
appellants should be given their costs in the court
a
quo.
[29] The following
order is made:
1.
The appeal is allowed with costs, including those occasioned by the
employment of two counsel.
2. The order of the
court
a quo
is set aside and replaced with the following:
‘
The
application is dismissed.’
……………
..
IG FARLAM
JUDGE
OF APPEAL
CONCURRING
NUGENT
JA
CLOETE
JA
PONNAN
JA
MLAMBO
JA