Brief Summary

Constitutional Law — Right to privacy — Search and seizure under the Investigation of Serious Economic Offences Act — Applicant challenged the constitutionality of sections 6 and 7 of the Act following a search and seizure of documents related to a pending criminal trial. The applicant contended that the evidence obtained was inadmissible as it violated his constitutional right to privacy. The Constitutional Court held that the events in question occurred prior to the Constitution coming into force, and thus the applicant could not invoke constitutional protections retroactively. The court concluded that even if the provisions were unconstitutional, the actions taken were lawful at the time and did not constitute a breach of rights that had not yet come into existence.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned a constitutional referral to the Constitutional Court arising from a pending criminal trial in the Cape of Good Hope Provincial Division of the Supreme Court (the CPD). The applicant, Mr Key, was the accused in that pending criminal prosecution. The respondents were the Attorney-General, Cape Provincial Division (first respondent) and the Director: Office for Serious Economic Offences (second respondent), whose officials had conducted searches and seizures under statutory authority.

The dispute originated in the collapse and winding-up of a corporate group associated with the applicant, particularly Tollgate Holdings Ltd. Following searches and seizures conducted under statutory powers, the applicant was indicted on charges related to Tollgate’s affairs. Before the criminal trial proceeded, the applicant brought urgent motion proceedings in the CPD. The CPD made an order referring two issues to the Constitutional Court in terms of section 102(1) of the Constitution of the Republic of South Africa Act 200 of 1993 (the Interim Constitution): first, whether sections 6 and 7 of the Investigation of Serious Economic Offences Act 117 of 1991 were unconstitutional; and second, whether evidence obtained in terms of those sections was inadmissible in the criminal proceedings.

The general subject-matter of the dispute was the constitutional permissibility and criminal-trial consequences of search-and-seizure and information-disclosure powers exercised in the investigation of serious economic offences, and in particular whether such conduct (and the evidence derived from it) could be impugned by relying on the Interim Constitution’s right to privacy and the fair-trial guarantee.

2. Material Facts

The court treated as central that the relevant investigative steps and the building of the prosecution case occurred before the Interim Constitution came into force on 27 April 1994. Tollgate Holdings Ltd was finally wound up in early 1993. Approximately two weeks later, representatives of the second respondent, acting under authority of an order issued by him pursuant to section 6(1) of the Investigation of Serious Economic Offences Act 117 of 1991, searched the applicant’s residence and offices and seized documents.

On 3 February 1994, the applicant was indicted on charges connected to Tollgate’s affairs. The applicant contended that the case against him had been constructed on the basis of the seized documents, subsequent witness interviews, and a report prepared by investigative accountants who were given access to the documents pursuant to section 7 of the same Act.

The criminal trial had been set down for October 1994, but the applicant’s urgent motion in August 1994 led to the CPD referral and the criminal trial did not proceed at that time (the court noted that the basis for the separate civil application was unclear, but this point was not argued and was not taken further).

A further material development was that, after argument in the Constitutional Court, section 6 of the Act was materially amended by the Investigation of Serious Economic Offences Amendment Act 46 of 1995, effective 20 September 1995. The court treated this amendment as bearing on whether the constitutionality issue had become moot in the form originally referred.

3. Legal Issues

The court was required to determine two central questions as framed by the CPD referral.

The first issue was whether sections 6 and 7 of the Investigation of Serious Economic Offences Act 117 of 1991 were inconsistent with the Interim Constitution—particularly section 13 (the right to personal privacy, including protection against searches, seizures, and violation of private communications)—and therefore invalid. This issue was a question of constitutional law, but it was also affected by supervening events, including legislative amendment and questions of retrospectivity.

The second issue was whether all evidence relating to the criminal proceedings, obtained in terms of sections 6 and 7, was inadmissible and could not be used against the applicant. This was primarily an issue concerning the application of constitutional norms to criminal procedure, including whether the advent of constitutional rights automatically altered the admissibility of evidence gathered earlier under pre-constitutional law. It also implicated a value judgment about fairness in criminal proceedings, though the court framed the decisive point as one of non-retroactivity and the proper allocation of admissibility determinations to the trial judge under the constitutional fair-trial standard.

4. Court’s Reasoning

The court’s starting point was that the referred issues had been overtaken by later events. It observed that section 6 had been materially amended after the matter was argued, rendering the abstract question of its constitutional validity in its pre-amendment form moot. In addition, the court considered that the admissibility of evidence obtained through searches and seizures was to be assessed in light of the Constitutional Court’s developing jurisprudence on fair trial and compelled or derivative evidence.

The court then addressed what it considered to be the threshold question: whether the applicant could challenge, on constitutional grounds, conduct that occurred before 27 April 1994. Relying on Du Plessis and Others v De Klerk and Another (CC) Case No CCT 8/95, the court endorsed the proposition that Chapter 3 of the Interim Constitution does not operate retrospectively or retroactively so as to convert conduct that was lawful when performed into unlawful conduct by reason only of the later commencement of constitutional rights. The court emphasised that, save possibly for exceptional circumstances involving gross injustice (a possibility left open in Du Plessis and again left open here), courts apply the law as it stood before the Constitution came into force.

In reinforcing the non-retroactivity point, the court drew on the Canadian authority R. v. James; R. v. Dzagic (1988), 33 C.R.R. 107, which had held that the Canadian Charter could not be applied to a search and seizure occurring before the Charter’s commencement. The court treated the Canadian reasoning as analogous: the relevant legal regime to evaluate an alleged rights infringement is the regime in force at the time of the state action.

Applying these principles, the court held that the search and seizure under section 6, the disclosure of documents to accountants under section 7, the production of the accountants’ report, and the formulation and service of the indictment—all having occurred before 27 April 1994—could not constitute breaches of Chapter 3 rights, because those rights had not yet come into existence. Even if sections 6 or 7 were assumed to infringe constitutional rights, that would not assist the applicant regarding actions already completed under a pre-constitutional legal regime. The court further held that the case did not present the sort of exceptional circumstances that might justify treating pre-constitutional acts as invalid (without deciding whether such power exists).

On the second referred issue—automatic inadmissibility—the court rejected the applicant’s contention that the coming into force of the Constitution, “without more and by operation of law,” rendered constitutionally objectionable and therefore inadmissible evidence that had been lawfully obtained under sections 6 and 7 before 27 April 1994. It reasoned that there was nothing inherently unfair in receiving evidence properly gathered under a lawful search and seizure, and no warrant for retroactively imposing illegality on such conduct solely due to subsequent constitutional change.

The court then addressed, to the extent necessary, the relationship between the constitutionality of investigative powers and the admissibility of evidence at trial. It noted that the Act did not itself regulate admissibility. Even if one assumed section 6 was unconstitutional and that this would render the earlier searches and seizures unlawful, it did not follow that evidence directly or derivatively obtained would necessarily be inadmissible in subsequent criminal proceedings.

In this regard, the court discussed Park-Ross and Another v Director: Office for Serious Economic Offences 1995 (2) SA 148 (C), where an analogous exclusion order had been granted. The court observed that the admissibility order in Park-Ross appeared to have been based on an agreement between the parties and that the judgment did not separately analyse admissibility as distinct from constitutionality. The court further stated that, insofar as Park-Ross supported a rigid approach inconsistent with a flexible fairness enquiry, it should be regarded as incorrect.

The court located the admissibility enquiry primarily within the fair trial right. Relying on the Constitutional Court’s endorsement of a flexible, case-by-case approach to questions of derivative or compelled evidence (as articulated by Ackermann J in Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC), and reiterated with unanimous support in Bernstein and Others v Bester NO and Others (CC) Case No CCT 23/95 27 March 1996, unreported and Nel v Le Roux NO and Others (CC) Case No CCT 30/95 4 April 1996, unreported), the court held that the trial judge is best placed to decide whether fairness requires exclusion or admission on the facts.

The court linked this approach to S v Zuma and Others [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (SA), emphasising that section 25(3) introduced a broader concept of substantive fairness than the pre-constitutional approach described in S v Rudman and Another; S v Mthwana 1992 (1) SA 343 (A). The court stated that fairness is a matter for evaluation in the circumstances of each case: sometimes fairness may require exclusion of unconstitutionally obtained evidence, while at other times fairness may require its admission.

Consequently, the court held that the applicant was not entitled, in these proceedings, to a blanket order excluding evidence. If the contested evidence were tendered at trial, the applicant could object then, and the trial judge would decide whether admitting it would infringe the right to a fair trial.

As to section 7, the court noted that Park-Ross had upheld it as constitutional and expressed an inclination to agree, but found it unnecessary to decide. The disclosure complained of had occurred before 27 April 1994, and the applicant could not allege a constitutional privacy breach in respect of that disclosure. On the facts as presented, there was also no substantiated allegation of threatened disclosure for other purposes that would establish an infringement or threat to privacy under section 13.

On costs, both parties sought costs orders. The court held that because the matter was referred by consent, and in line with Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others (No 2) (CC) Case No CCT 5/95, 19 March 1996, unreported, no costs order should be made.

5. Outcome and Relief

The court made no order on the question whether sections 6 and 7 of the Investigation of Serious Economic Offences Act 117 of 1991 were inconsistent with the Interim Constitution.

The court held that evidence procured pursuant to sections 6 and 7 and obtained prior to 27 April 1994 was not rendered inadmissible in criminal proceedings against the applicant solely by virtue of the coming into force of the Constitution. Any contention that admission of such evidence might infringe the applicant’s right to a fair trial was a matter to be determined by the trial judge on the facts established at trial.

No order as to costs was made. The result was that no order was made in respect of either of the two referred issues, and no order was made in respect of costs.

Cases Cited

Du Plessis and Others v De Klerk and Another (Constitutional Court) Case No CCT 8/95, delivered on the same day as this judgment.

R. v. James; R. v. Dzagic (1988), 33 C.R.R. 107.

Park-Ross and Another v Director: Office for Serious Economic Offences 1995 (2) SA 148 (C).

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC).

Bernstein and Others v Bester NO and Others (Constitutional Court) Case No CCT 23/95, 27 March 1996, unreported.

Nel v Le Roux NO and Others (Constitutional Court) Case No CCT 30/95, 4 April 1996, unreported.

S v Zuma and Others [1995] ZACC 1; 1995 (2) SA 642 (CC); 1995 (4) BCLR 401 (SA).

S v Rudman and Another; S v Mthwana 1992 (1) SA 343 (A).

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others (No 2) (Constitutional Court) Case No CCT 5/95, 19 March 1996, unreported.

Legislation Cited

Constitution of the Republic of South Africa Act 200 of 1993, including sections 13, 25(3), 101(3), 101(6), and 102(1).

Investigation of Serious Economic Offences Act 117 of 1991, including sections 5, 6, and 7.

Investigation of Serious Economic Offences Amendment Act 46 of 1995.

Companies Act 61 of 1973, including sections 417 and 418.

Criminal Procedure Act 51 of 1977, including section 205.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Constitutional Court held that the applicant could not rely on Chapter 3 of the Interim Constitution to challenge searches, seizures, disclosures, and related investigative acts that occurred before 27 April 1994, because the Constitution does not ordinarily operate retrospectively to render previously lawful conduct unlawful.

It held further that evidence obtained under sections 6 and 7 before the Constitution’s commencement was not automatically inadmissible in the applicant’s criminal trial by reason only of the Constitution coming into force. Any question whether admitting such evidence would infringe the right to a fair trial was for the trial court to decide on the facts at trial, applying a flexible, case-by-case fairness enquiry. No order was made on the constitutionality of sections 6 and 7, and no costs order was granted.

LEGAL PRINCIPLES

The judgment applied the principle that the Interim Constitution’s Chapter 3 rights do not ordinarily apply retrospectively or retroactively so as to convert conduct that was lawful when it occurred into unlawful conduct by reason only of the later commencement of constitutional rights, subject to a possibility (left open) of exceptional circumstances involving gross injustice.

The judgment applied the principle that the admissibility of evidence (including evidence directly or derivatively obtained through investigative powers) is not determined by an automatic rule flowing from constitutional change. Instead, admissibility is to be assessed primarily through the right to a fair trial and decided by the trial judge on a flexible, case-specific basis, recognising that fairness may sometimes require exclusion of improperly obtained evidence and may sometimes permit admission, depending on the circumstances.

The judgment further applied the principle that even where an investigative provision is assumed to be constitutionally defective, it does not follow without further enquiry that evidence obtained through its use is necessarily inadmissible; the fairness enquiry remains distinct and fact-dependent.

Key v Attorney-General, Cape Provincial Division, and Another (CCT 21/94) [1996] ZACC 25; 1996 (4) SA 187 (CC); 1996 (6) BCLR 788 (15 May 1996)