Democratic Alliance v Acting National Director of Public Prosecutions and Others (19577/09) [2013] ZAGPPHC 242; [2013] 4 All SA 610 (GNP) (16 August 2013)

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[2013] ZAGPPHC 242
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Democratic Alliance v Acting National Director of Public Prosecutions and Others (19577/09) [2013] ZAGPPHC 242; [2013] 4 All SA 610 (GNP) (16 August 2013)

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REPORTABLE
NORTH GAUTENG HIGH COURT, PRETORIA
CASE NO: 19577/09
DATE:16/08/2013
In the matter between:
DEMOCRATIC
ALLIANCE
...................................................................
APPLICANT
And
THE ACTING NATIONAL DIRECTOR
….......................
FIRST RESPONDENT
OF PUBLIC PROSECUTIONS
THE HEAD OF THE DIRECTORATE
…...................
SECOND
RESPONDENT
OF SPECIAL OPERATIONS
JACOB GEDL’EYIHLEKISA
ZUMA
.................................
THIRD
RESPONDENT
J U D G M E N T
MATHOPO J
[1] This is an application to compel the Acting Director of Public
Prosecutions (The First Respondent) to produce and lodge with
the
Registrar of this court, in terms of Supreme Court of Appeal (SCA
order) which record shall include a copy of a telephonic
recording
and transcript referred to by the first respondent when he formally
withdrew charges against the third respondent (Mr
Zuma) on the 6
th
April 2009, as well as any internal memoranda, reports or minutes of
meetings dealing with the contents of the recordings and or

transcript itself insofar as these documents do not already refer to
the third respondent’s written or oral representations.
[2] The applicant further seeks an order that the first respondent be
held in contempt of the SCA order for failing to produce
the said
records which include the documents referred to above.
[3] To fully contextualise the issues between the parties, it is
necessary to set out the brief narrative of facts and circumstances

leading to this application.
Background
[4] During March 2009, and in pursuance of his right to make
representations to the first respondent, the third respondent made

representations on the basis of confidentiality and on a without
prejudice basis. It is common cause that following those
representations,
the first respondent finally announced its decision
to withdraw the charges against the third respondent on the 6 April
2009, in
a public statement which detailed that:
4.1 The third respondent had made representations which included
reference to telephone conversations and recordings motivating
for
the withdrawal of the charges pending against the third respondent;
4.2 The first respondent had thereafter investigated the authenticity
of reference and legality to the telephone conversations
and had been
advised through the offices of the National Intelligence Agency
(“NIA”) that it had such taped conversations
which had
been lawfully obtained. The NIA provided the first respondent with
transcripts of the telephone conversations.
[5] Subsequent to that decision, the applicant launched review
proceedings in respect of the first respondent’s decision
in
this court, together with an application in terms of Rule 6(11),
seeking an order compelling the first respondent to provide
the
applicant with the reduced record of its decision not to prosecute
the third respondent. Such record was to exclude the written
and oral
representations and any memorandum report or minutes in connection
thereto. The court per Ranchod J, dealt with the matter
and made
certain orders which were taken on appeal.
[6] This application was subsequently dealt with on appeal by the
Supreme Court of Appeal in
Democratic Alliance and Others v
Acting National Director of Public Prosecutions & Others 2013(3)
SA 486 SCA
which substituted the order of Ranchod J with an
order which included as part of paragraph 1.3, the following:
“
1.3 In the Rule 6(11) application the
first respondent is directed to produce and lodge with the Registrar
of this court the record
of the decision. Such record shall exclude
the written representations made on behalf of the third respondent
and any consequent
memorandum or report prepared in response thereto
or oral representations if the production thereof would breach any
confidentiality
attaching the representations (the reduced record).
The reduced record shall consist of the documents and materials
relevant to
the interview, including the documents before the first
respondent when making the decision and any documents informing such
decision.”
[7] As a result of the SCA order, the applicant as it was entitled to
called upon the first respondent to comply with the order
by
producing a reduced record in terms of Rule 6(11). The first
respondent did not comply with the applicant’s request. No

communication, extension of time or explanation was requested. The 14
day period set in the order expired on the 10
th
April
2012. On the 12
th
April 2012, the first respondent
represented by the State attorney responded to the applicant and
advised the applicant that:
7.1 The State Attorney was in the process of preparing copies of the
reduced record.
7.2 A list of documents which according to the State Attorney
comprised the reduced record was furnished.
7.3 There were, in addition, certain tape recordings which were in
the process of being transcribed but that process had not been

completed and would take some additional time.
7.4 The First respondent was obliged to afford the third respondent’s
legal team an opportunity to consider whether there
was any objection
to the disclosure of the transcripts. On completion of that process,
if there was no objection to disclosure,
the transcripts would be
made available as supplement to the record.
[8] On the 12 April 2012 the State Attorney delivered certain
documents as part of the reduced record. The copies of the documents

received from the applicant and others aimed at persuading the first
respondent not to discontinue with the prosecution of the
third
respondent, were lodged with the Registrar of the High Court on the
13
th
April 2013. The copies of the recordings and
transcripts as well as any internal memoranda, reports or minutes of
meetings dealing
with the contents of the recordings and/or
transcripts themselves, insofar as these documents did not directly
refer to the third
respondent’s written or oral representation,
were, however not produced and lodged with the Registrar.
Frustrated by what it regarded as a deliberate attempt to disregard
the order of the SCA and unnecessary indulgences granted to
the third
respondent, the applicant decided to launch the present proceedings
to compel the first respondent to comply with the
SCA order.
[9] With regard to the outstanding documents which formed part of
this application, the first respondent invoked paragraph 33 of
the
SCA judgment and order supra which among others, directed that the
concern expressed by the third respondent that there might
be
material in the record of decision which might adversely affect his
rights be met by an undertaking on behalf of the first respondent

that the National Director of Public Prosecutions office would inform
the third respondent of its contents. On the 27 September
2012 Hulley
& Associates representing the third respondent wrote to the
office of the State attorney advising that the third
respondent’s
position was that it neither consented nor waived the confidentiality
provisions which underpinned the representations.
[10] The issue is this case concerns the interpretation of the SCA
order.
ISSUES
[11] Principally there are three issues to be determined:
11.1 First, whether the first respondent should hand over to the
applicant electronic recordings and transcript thereon. (transcripts)
11.2 Second, whether the first respondent should be ordered to
produce internal NPA memoranda, reports or minutes of meeting dealing

with the contents of the recordings and transcripts insofar as these
documents do not directly refer to the third respondents written
or
oral representations.
11.3 Third, whether the first respondent is in contempt of the SCA
order of the 20
th
March 2012.
[12] The third respondent did not file any affidavit opposing the
relief sought instead he filed a notice in terms of rule 6(5)

(d)(iii) wherein he raised a point of law namely that in terms of the
SCA order, the material in issue do not form part of the
qualified
record of the proceedings. In short, the position adopted by the
third respondent is that production of the transcripts
as well as
written or oral representations are excluded and protected by the
confidentiality, as prescribed by the SCA order.
The position of the parties re: transcripts
[13] As regards the transcripts, the stance adopted by the first
respondent is that it abides the decision of the court, and that
the
matter should be debated or argued by the applicant and the third
respondent. In essence what this argument boils down to is
that the
first respondent as the custodian of the documents and against whom
the order is made for the production of the document
has no objection
to the production of the transcripts. During argument counsel for the
first respondent unequivocally made the
concession that the first
respondent has “no view” regarding the transcripts or
recordings.
[14] On the second issue, the first respondent’s position is
that the order should be refused because the SCA order does
not
require it to produce the documents which are protected by the
confidentiality undertaking between the first and third respondents,

as acknowledged in the judgment and order of the SCA. In essence, the
basis of the objection is that the said documents are inextricably

linked with the confidential communications made by the third
respondent.
[15] As regards the third issue for determination, the case advanced
for the first respondent is that the delay in providing the

transcript arose as a result of the conduct of the third respondent,
thus no case has been made by the applicant for the contempt.
[16] The third respondent’s contention is the SCA order,
confidentiality applies to all the documents that were placed before

the NDPP as part of the representations. In support of this
contention counsel for the third respondent submitted that on a
proper
interpretation of the SCA order, the transcripts formed part
and parcel of the order and are protected on the basis of privilege

or confidentiality.
[17] It was submitted that since the first respondent did not have
the recordings but accessed them through the efforts of the
third
respondent, separating them from the representations would be
illogical and irrational. Counsel for the third respondent

accordingly urged upon me to accept that it is not possible on any
logical or rational basis, to understand the process without

acknowledging and accepting that the conveyance of the transcripts
and its contents were inextricably linked with the representation.
[18] Counsel argued that when a distinction is drawn between the
order and the ratio, the exclusion in the order was to protect

confidentiality. To buttress this argument counsel referred
extensively to the statement by the Acting Director of Public
Prosecutions
(Mr Mpshe), as authority for the proposition that the
transcripts were indeed part of the representations. Mr Mpshe at page
96
is recorded as saying:
“
Possible abuse of process
In the course of the representations, the defence made certain
very serious allegations about alleged manipulation of the NPA and

indicated that these were substantiated by recordings of certain
telephone conversations which it intended handing into court during

intended application for a permanent stay of prosecution.
The NPA decided that it would listen to these recordings because
it felt that the allegations were serious enough to impact on the

NPA’s decision if they were true. It felt it should do so
despite the fact that it was not clear whether the recordings had

been intercepted legally or were legally in the possession of the
defence.
I appointed a senior team consisting of Messrs Mzinyathi and
Hofmeyr to listen to, verify and investigate the contents of the
recordings.”
[19] Counsel for the third respondent further submitted that since
the SCA order was made against the background of this statement,
it
is not possible to construe the transcripts as not forming part of
representations. The submission made is that on a rational
and
logical basis, the conveyance of the transcripts and contents thereof
were part and parcel of the representations. Counsel
for the third
respondent further submitted that if anybody on that day had asked
whether the facts and information regarding the
transcripts were part
of the representations or not, the answer would have been in the
affirmative. On the basis, he urged me not
to separate the
transcripts from the representations and vigorously argued that the
transcripts are protected by the order relating
to confidential
documents in the SCA order.
[20] The applicant’s contention on the first issue is that
there is no legal basis why the transcripts or recordings should
not
be produced. The submission made is that the transcripts were not
submitted as part of the representations by the legal representatives

of the third respondent. The transcripts, as the argument goes, were
given to the first respondent by the National Intelligence
Agency
(NIA) after enquiries were made by the first respondent as part of
the written or oral representation by the third respondent’s

legal representatives. As the first respondent was merely given
access to and not the copies of the recordings. It is contended
that
there is no legal impediment to their disclosure on the basis of
confidentiality. This is especially so because during his
public
statement, Mpshe referred to a substantial portion of the recordings
when justifying his decision to quash the criminal
charges against
the third respondent.
[21] The applicant has alleged in its papers that the transcripts are
not protected by confidentiality. The third respondent confronted

with such serious allegation elected not to submit any evidence to
gainsay the averments. It is settled law that a bare or
unsubstantiated
denial will only pass muster where there is no option
available to a respondent due, for example, to a lack of knowledge or
because
nothing more can be expected from the respondent. A bare
denial in circumstances where a disputing party must, necessarily be
conversant
with the facts averred and is in a position to furnish an
answer or countervailing evidence as to its truth or correctness,
does
not create a real or genuine dispute of fact. A proper answer to
the material averments under reply requires at the minimum, a
separate and unequivocal traversal of each and every allegation which
the party seeks to contend.
[22] It should have been obvious to the third respondent that, in the
absence of any countervailing evidence particularly since
the parties
accorded different interpretations to the SCA order, more was
required to clarify his position instead of seeking refuge
on a point
of law. The objective facts submitted by the applicant cried out for
an answer, yet the third respondent elected not
to respond. This
approach is not without consequences. The third respondent imperilled
his position in the circumstances by failing
to put up any cogent
explanation as to why he is entitled to the confidentiality.
[23] Another compelling reason advanced by the applicant is that
because a substantial portion of the transcripts have already
been
disclosed and is in the public domain, the contention that the third
respondent is entitled to confidentiality in respects
of the
transcripts is misplaced. It was submitted that at no stage during
the public disclosure by Mpshe, did the third respondent
raise any
privilege or confidentiality and neither did he raise breach of
confidentiality before the SCA.
[24] It seems clear to me that both the applicant and the first
respondent understood the order of the SCA to exclude the
transcripts.
The third respondent however seems to have obfuscated
the issues by contending that Mpshe, in his address included the
transcripts
as part of the representation. If that was the position
then one would have expected the legal representatives of the third
respondent,
in the interests of the third respondent, to have
clarified the position before the SCA to avoid any apparent ambiguity
in the
order. This was not the case of the third respondent before
the SCA. To now contend otherwise is incongruous. The effect of the

third respondent’s argument is that Mpshe in his public address
breached the confidentiality or privilege of the third respondent
by
releasing the transcripts. This submission in my view is devoid of
merit. No compelling evidence has been adduced by the third

respondent as to how and in what respect Mpshe breached his
confidentiality. This issue was not raised nor debated before the
SCA. It is opportunistic for the third respondent to now contend that
there was a breach of confidentially when he benefitted from
the
alleged disclosure.
[25] After assessing the transcripts which were declassified by NIA
as authentic, Mpshe together with his team, rightly or wrongly
came
to the conclusion that the integrity of the prosecution was
compromised and quashed the charges on the basis of what he regarded

as an abuse of the process by certain officials of the NDPP. It is
desirable that the transcripts be produced to test and properly

contextualise whether the decision of Mpshe was based on rational
grounds or not. I must also add that the remaining parts of the

transcripts will complete a picture and give true meaning to that
decision.
[26] As indicated earlier, the first respondent was merely given
access to and not copies of the recordings or transcripts. Mr
Mpshe
in his statement of the 6 April 2009 did not acknowledge that the
transcripts emanated from the third respondent. This in
my view gives
credence to the proposition that there is no legal basis to withhold
them.
[27]I fully agree with the applicant that on a proper construction of
the SCA order, confidentiality does not extend to the transcripts.
To
now assert privilege or confidentiality is without foundation. The
third respondent furthermore did not raise any prejudice.
It is
difficult to understand why the third respondent raises the defence
of confidentiality at this belated stage.
[28] I fail to understand the third respondent’s assertion that
disclosure of the transcripts would affect his right to
confidentiality or privilege. It has not been contended by any of the
parties that Mpshe referred to anything more than a discussion
by
certain officials of the NPA on the question whether the charges
should be brought before the African National Congress (ANC)

Polokwane Conference or not. The excerpts of the transcripts which
formed part of the record and which Mpshe extensively referred
to in
his address specifically related to the timing of the charges. In the
light of this, I fail to see how the discussion on
the timing of the
charges would impact on the integrity of the charges.
[29] In my view it is not appropriate for a court exercising its
powers of scrutiny and legality to have its powers limited by
the
ipse dixit
of one party. A substantial prejudice will occur if
reliance is placed on the value judgment of the first respondent. To
permit
the first respondent to be final arbiter and determine which
documents must be produced is illogical. First respondent is not an

impartial stakeholder. It was a party to the SCA order. The SCA order
obliges it to produce the record save where the third respondent

raises confidentiality or privilege. The third respondent has not put
up any case why the representations are confidential. Accordingly
I
fail to understand how, and on what basis the first respondent is
objecting to the disclosure. Paragraph 33 of the SCA order
makes it
clear that the concerns of the third respondent must be addressed. No
such concerns have been raised by the third respondent.
In the
absence of such concerns the first respondent has no right to
independently edit the record. It must produce everything.
To the
extent that the third respondent claims confidentiality, he must set
out the relevant facts why he is entitled to confidentiality.
The
first respondent is not entitled to accommodate the third respondent
in vacuum. Sufficient basis must exist. In my view none
has been
shown to exist.
[30] On a proper interpretation of the SCA order, the transcripts
were in the public domain. The construction of the order depends
upon
both the wording in the ordinary sense and the context which in the
court order was made. Regard being had the language used
and context,
none of the parties save the third respondent understood the
confidentiality to extend to the transcripts as they
were the public
domain hence no confidentiality or privilege could be attached to
them. See
Firestone South Africa (Pty) Ltd v Genticuro 1977(4)
SA 298 (A).
[31] The submission by the third respondent that the transcripts are
inextricable and formed part and parcel of the entire representation

is rejected. Equally, untenable is the submission that producing the
transcripts would infringe the third respondent’s right
to fair
trial. No cogent or plausible evidence has been advanced by the third
respondent to show that producing the transcripts
would adversely or
materially affect his rights. In my view, if the third respondent
intended or wished the representation to have
any extended meaning he
should or ought to have made the appropriate submission in that
regard. It was open to him to approach
the court to ask for
protection if the first respondent was inclined to reveal the
documents. Having not done so, the third respondent
has failed to
demonstrate that he will suffer any prejudice if the documents are
released.
[32] Finally on this point, I need to say something about the conduct
of the first respondent with regards to the transcripts.
Counsel for
the first respondent quite surprisingly, submitted that the first
respondent “holds no view” with regard
to the transcripts
and does not join issue with the applicant and third respondent and
will abide the decision by the court. The
stance adopted by the first
respondent is irresponsible, if regard is had to the fact that it was
one of the parties to the proceedings
in the High Court and SCA. In
terms of the SCA order, it is obliged to file the record. Adopting a
neutral position is akin to
abdicating its duties and
responsibilities. It most certainly misconceived its position.
The position of the parties re: representations (memoranda, minutes,
reports
etc)
[33] The first respondent’s case is that the internal memoranda
notes and minutes that were generated for the purpose of
the decision
making process involved reference not only to what is contained in
the electronic recordings and transcripts but also
to matters that
were conveyed in strict confidence in terms of the undertaking
provided to the third respondent’s legal team.
The submission
made in this regard is that the contents of the memoranda relate to
the representations as well as the recording
and that they are
inextricably linked. In short, what the first respondent contends is
that disclosure of the contents would breach
the confidentiality in
which the SCA order directed not to be disclosed unless the third
respondent consent or waives the privilege
or confidentiality.
[34] The first respondent contended that it is the professional
responsibility of the office of Director of Public Prosecution
to
fully respect the right to privacy or confidentiality of those with
whom they enter into representations. The said discussions
are
protected by confidentiality and the DPP cannot be forced to disclose
information revealed during representations unless specific
exception
to privilege exists. And such information cannot be revealed without
the consent of the representor (in this case the
third respondent).
[35] In essence, the contention of the first respondent is that the
consideration of public interest makes it obligatory, when
a party
makes representations to the Acting NDPP on conditions of
confidentiality, to expect that such an undertaking would be

honoured.
[36] Counsel for the first respondent conceded that the transcripts
can be severed from the documents forming part of other
representations.
This concession appears astounding and
self-contradictory when regard is had to the submission made by the
first respondent in
its answering affidavit which read as follows.
Further the NPA confirms that the contents of the conversations
that had been intercepted and were transcribed were indeed dealt
with
in the memoranda, minutes and notes of meetings etc, by officials of
the NPA in the process of internal discussion and consultation

leading up to the decision by Adv Mpshe.
[37] As in the transcripts, the third respondent did not file any
affidavit to explain how and why the disclosure of the memoranda,

minutes, notes reports etc would affect his right to confidentiality.
The submission made against disclosure is based on what he
considers
to be a correct interpretation of the SCA order, which excluded such
representation. In short, the case advanced for
the third respondent
is that the necessary implication of the SCA order is that the
material used in support of the representation,
and disclosed to the
NPA, and any memoranda and reports generated as a result of the
representations are covered by the confidentiality
applicable to the
representations.
[38] It would seem to me that the position adopted by the third
respondent is that the SCA order envisaged a blanket prohibition
of
the disclosure of the memoranda, minutes or notes, reports etc,
despite the fact that no legal claim of confidentiality has
been
asserted by the third respondent.
[39] The submission of the applicant is that it is not for the first
respondent to ultimately decide whether the documents must
be
disclosed or not. The applicant submitted that as an organ of state,
the first respondent should carry out its obligations without
fear or
favour, and prejudice because this is a matter where the exercise of
its constitutional functions and powers is under scrutiny,
it must
act and be seen to be acting in an impartial manner. Counsel further
submitted that the first respondent must be astute
and not allow its
powers limited by the
ipse dixit
of the first respondent. The
applicant went on to submit that relying exclusively on the value
judgment of the first respondent,
as the final arbiter on the
question of whether the documents are disclosable or not is
untenable, because the third respondent
did not file any contrary
evidence suggesting that he will suffer prejudice if the documents
are disclosed. Since no legal impediment
to the disclosure has been
demonstrated by the third respondent, I agree with the applicant that
relying on submissions from the
bar as a ground for confidentiality
or is misplaced.
[40] The first respondent, as an organ of state, has a duty to
prosecute without fear, favour or prejudice by upholding the rule
of
law and the principle of legality. It is also a constitutional body
with a public interest duty. It behoves its officials to
operate with
transparency and accountability. The first respondent has a duty to
explain to the citizenry why and how Mpshe arrived
at the decision to
quash the criminal charges against the third respondent. In pursuance
of its constitutional obligations it is
incumbent upon the first
respondent to pass the rationality test and inform the public why it
quashed the charges. In my view,
the converse would make the public
lose confidence in the office of the NDPP. The documents, sought by
the applicant, will assist
in enquiring into the rationality of the
decision taken by Mpshe. It cannot simply be said that all the
documents submitted, whether
oral or written, are covered by
privilege. That would amount to stretching the duty of privilege
beyond the realms of common sense
and logic.
[41] The order of the SCA does not envisage a blanket prohibition to
disclosure. The order specifically excludes only matters that
the
third respondent may consider confidential or privilege. It is not
good enough for the third respondent or the first respondent
when
called upon to disclose documents to hide behind privilege. The third
respondent must specify and itemise the relevant material
and state
in what respect he is protected by privilege or confidentiality.
There is an obligation on his part to disclose matters
which concerns
confidentiality. In the absence of any, he cannot seek to rely on the
SCA order.
[42] It should have been easier for the third respondent to itemise
with reference to dates, minutes, notes, the documents set
to be
confidential. The third respondent know which documents are protected
and covered by confidentiality. All this information
or documents is
peculiarly within the personal knowledge of the third respondent.
[43] In a nutshell the argument of the applicant is that absent any
cogent or plausible evidence to the contrary, the documents
should be
disclosed. It was further submitted any concerns raised by the third
respondent relating to the confidentiality can be
dealt with by
making an order similar to that of
ABBM Printing &
Publishing (Pty) Ltd v Transnet Ltd 1998(2) SA 109 (W)
where
the court dealing with the issue of confidentiality relating to
commercial tenders held as follows:
“
[24.2] I do not have a copy of the
tender document. Part of it, such as ‘the tender price, the
tenderer’s experience
and expertise cannot be confidential.
Other parts of it may well contain confidential information as this
term is understood in
the considerable case law involving
confidential information and which should be protected from
disclosure. On the facts before
me I cannot decide whether any tender
contains confidential information. I am also of the opinion that this
issue should not be
decided on the question of onus in opposed
applications. (See Ngqumba en ’n Ander v Staatpresident en
Andere; Damons NO en
Andere v Staatspresident en Andere; Jooste v
Staatspresident en Andere
1988 (4) SA 224(A).
In my judgment, it
would be counter-productive and contrary to the Constitution to allow
the respondent to hide behind an unsubstantiated
blanket claim to
confidentiality on behalf of tenderers. By way of example only a
claim to confidentiality should not protect from
disclosure a side
letter containing terms other than those appearing in the tender or
for that matter the provision for a ‘kick
back’.”
[44] In the alternative, it was submitted that if I am disinclined to
grant the order, the first respondent should be directed
to produce
the memoranda minutes, notes etc and delete the parts which infringes
upon the confidentiality of the third respondent.
In support of this,
alternative argument, reliance was placed on the case of
Tetra
Mobile Radio (Pty) Ltd v MEC Department of Works 2008(1) SA 438 (SCA)
where the court per Mthiyane JA held as follows:
“
[14] The appellant contended that the
respondents had not made out a case for reliance on confidentiality:
if there was any apprehension
on the part of the respondent regarding
any specific document, that concern could be met by making an order
similar to the one
granted by Schwartzman J in ABBM Printing &
Publishing (Pty) Ltd v Transnet Ltd, where the parts of the documents
in respect
of which disclosure might result in breach of confidence
were to be identified and marked as confidential and the applicant’s

attorney was prohibited from disclosing such parts to any other
party, including the applicant, save for the purpose of consulting

with counsel or an independent expert. In that way a fair balance
could be achieved between the appellant’s right of access
to
documentation necessary for prosecuting its appeal, on the one hand,
and the third respondent’s right to confidentiality,
on the
other.”
[45] In my view, whatever prejudice the third respondent may have can
be protected by an order similar to the ABBM, which appears
to be
logical and on sound legal basis. However what I find more persuasive
is the order granted in the Tetra Mobile case, in terms
of which the
third respondent would be ordered to produce the documents but record
the parts which infringe upon his confidentiality.
This approach
finds favour with me because it does not leave the determination as
to confidentiality to the first respondent or
the third respondent
alone. Thus where confidentiality is claimed both parties will be
required to set out the basis why those
particular documents should
not be disclosed. To deny the applicant the remedy in this case would
in my view be contrary to the
spirit and purport of the SCA order.
The approach in Tetra Mobile will take into account the third
respondent’s right to
privilege and confidentiality in relation
to the specific documents.
[46] The respondent’s objection to the standard approach in
Tetra Mobile is that the court dealt with confidentiality in
respect
of commercial tenders. What the respondents seem to be implausibly
suggesting is that because the court dealt with confidential

commercial tenders, this case is clearly distinguishable from the
present case. I do not agree. The principles underpinning
confidentiality
is the same. There is no reason why the ratio in the
Tetra Mobile case should not apply with equal force to the present
case. Applying
this approach will clearly protect the third
respondent’s right to confidentiality by affording him an
opportunity if so
advised to explain in what respects his right to
confidentiality would be breached by the disclosure. Such an order is
consistent
with the SCA order which excludes information in terms of
which a concern relating to confidentiality is raised by the third
respondent.
The order of the SCA was not made in vacuum. I am
convinced that it must have been foremost in the minds of the SCA
that the parties
will call to aid the sound guiding principles in the
above cited cases to resolve any dispute based on confidentiality. In
my view
to construe this order as imposing a blanket prohibition as
the third respondent contend is manifestly unfounded.
I now turn to deal with the contempt of court application
.
[47] The contempt application is premised on the basis that after the
applicant sent various letters to the first respondent aimed
at
persuading them to comply with the order, the first respondent
delayed in responding or alternatively did not fully or adequately

comply with the applicant’s request further alternatively it
granted the third respondent unnecessary indulgence without
sound
legal basis. It is the applicant’s case in this regard that
there is no conceivable basis why the first respondent
elected to
give the third respondent the opportunity to object before complying
with the order.
[48] It is common cause between
the parties that part of the record was produced 2 days after the
deadline. Counsel for the applicant
did not persist with the argument
that such conduct, albeit late, falls within the threshold of
deliberate and wilful conduct on
the part of the first respondent.
The main thrust of his argument was limited to the suggestion that
the first respondent allowed
itself to be dictated upon by the legal
representative of the third respondent. This to my mind is not
grounds for contempt. The
test to determine whether a party is in
contempt of court or not, was eloquently stated in
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA)
as follows:
“
[41]…
Once the applicant proves the three requisites (order, service and
non-compliance), unless the respondent provides
evidence raising a
reasonable doubt as to whether non-compliance was wilful and mala
fide, the requisites of contempt will have
been established…
is that the respondent no longer bears a legal burden to disprove
wilfulness and mala fides on a balance
of probabilities, but need
only lead evidence that establishes a reasonable doubt. It follows,
in my view that establishes a reasonable
doubt. It follows, in my
view, that Froneman J was correct in observing in Burchell (in para
[24]) that, in most cases, the change
in the incidence and nature of
the onus will not make cases of this kind any more difficult for the
applicant to prove. In those
cases where it will make a difference,
it seems to me right that the alleged contemnor should have to raise
only a reasonable doubt.”
[49] In response, the first respondent crisply submitted that it
would have been reckless on her part to produce the documents
without
regard to the third respondent’s entrenched rights to
confidentiality, which have been acknowledged in the SCA order.
The
first respondent further submitted that the answer to the contempt
charge is met by the contents of the letter of the 12 April
2012 in
particular paragraph 5 thereof which is consistent with the
undertaking in the SCA judgment. Paragraph 5 of the letter
states as
follows:
“
There
are in addition certain tape recordings which are in the process of
being transcribed, but that process has not been completed
as yet and
will take some additional time. On completion thereof, we are obliged
to give an opportunity to Mr Zuma’s legal
team to consider
whether there is any objection to disclosure of such transcripts. On
completion of that process, if there is no
objection to disclosure,
they will be made available as a supplement to the record.”
[50] The submission advanced on behalf of the first respondent is
that the delay if any, was occasioned by the third respondent’s

legal representative in considering whether to object to the
transcript or not. Thus no fault could be attributed to the State

attorney or first respondent because in terms of the SCA’s
order, the first respondent was obliged to afford the third
respondent,
an opportunity to indicate whether he has any objection
or not. I agree with the first respondent that affording the third
respondent
an opportunity to raise his concerns was in line with the
SCA order. This conduct in my view cannot be regarded as deliberate
or
wilful non compliance with the order. It follows that the contempt
of court application must be dismissed.
[49] I therefore make the following order:
1. The First Respondent is directed to comply with the order of the
Supreme Court of Appeal in case no. 288/11 dated 20 March 2012
(‘the
SCA order’), within five days of the date of this order.
2. The record to be produced and lodged by the First Respondent with
the Registrar of this Court, in terms of the SCA order, shall
include
a copy of the electronic recordings and a transcript thereof referred
to by the First Respondent in the announcement of
the First
Respondent’s decision on 6 April 2009 as well as any internal
memoranda, reports or minutes of meetings dealing
with the contents
of the recordings and/or transcript itself, insofar as these
documents do not serve to breach the confidentiality
of the Third
Respondent’s written or oral representations.
3. With regard to the memoranda, minutes and notes of meetings,
referred to by the First Respondent in paragraph 26 of her answering

affidavit (‘the internal documentation’):
3.1 within five days of the date of this order, the First Respondent
shall cause to be delivered to the Applicant’s Cape
Town
attorney Minde Schapiro & Smith (Mr M Smith) and to the Third
Respondent’s attorney of record copies thereof;
3.2 on the copy of each document referred to in 3.1 above, the First
Respondent shall mark or record that part of the document
which she
considers to be confidential;
3.3 save for the purpose of consulting with counsel, the Applicant’s
attorney shall not disclose to any other party, including
the
Applicant, any part of the document in respect of which the First
Respondent claims confidentiality;
3.4 should the Applicant dispute any claim to confidentiality and
should the parties be unable to resolve such dispute, the Applicant

shall on notice to the Respondents and any person having an interest
therein, have the right to apply to a Judge of the North Gauteng
High
Court in chambers for a ruling on the issue;
3.5 should the circumstances require, any of the parties shall have
the right to apply to a Judge of the North Gauteng High Court
in
chambers for an amendment to paragraphs 3.2, 3.3 and 3.4 of this
order.
4. The First Respondent and the Third Respondent shall pay the
Applicant’s costs (including the costs of two counsel) jointly

and severally, the one paying the other to be absolved.
____________________________
RS MATHOPO
JUDGE OF THE HIGH COURT
Appearances:
For the Applicant : Adv. SP Rosenberg SC
with Adv HJ de Waal
Instructed by : Minde Shapiro & Smith
For the First and Second : Adv. P Kennedy SC
Respondents : with Adv Maenetjie
Instructed by : The State Attorney Johannesburg
For the Third Respondent : Adv. KJ Kemp SC
with Adv JP Broster
Instructed by : Hulley & Associates
Date of hearing : 24 July 2013
Date of Judgment : 16 August 2013