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[2002] ZASCA 160
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Investigating Director of the Investigating Directorate: Serious Economic Offences and Another v Gutman NO (477/2000) [2002] ZASCA 160; 2002 (4) SA 230 (SCA); 2002 (1) SACR 694 (SCA) (25 March 2002)
THE SUPREME COURT OF
APPEAL OF SOUTH AFRICA
REPORTABLE
CASE
NO. 477/2000
In the matter
between
The Investigating Director of the
FIRST APPELLANT
Investigating Directorate:
Serious Economic Offences
The Minister of Justice SECOND APPELLANT
v
Bernard
Gutman NO
RESPONDENT
Before:
Smalberger
ADP, Harms, Zulman, Navsa JJA, Heher AJA
Heard:
1
March 2002
Delivered:
25
March 2002
Summary –
access to information under s 32 of Constitution – preservation
of secrecy under s 30 of
National Prosecuting Authority Act 32 of
1998
– whether Investigating Director entitled to rely on
s 30
for refusal to allow access.
________________________________________________________________
JUDGMENT
___________________________________________________________________________
HEHER AJA
[1]
This
appeal concerns the power of the first appellant to limit or deny a
right of access to information in possession of the State
for which s
32 of the Constitution of the Republic of South Africa Act 108 of
1996 provides.
[2]
In
June 1994, 3D ID Systems (Pty) Ltd (“the company”) was a
disappointed tenderer in respect of a contract for the
supply of
computerized equipment and the provision of services in relation to
social pensions and welfare grants for the Cape Provincial
Administration. The tender was awarded to Nisec CC. In April 1995
the company was wound up. The present respondent is its liquidator.
The contract with Nisec CC was cancelled amid allegations of fraud
and impropriety.
[3]
An
investigation into the award of the tender was conducted by the
Director of the Office for Serious Economic Offences acting
pursuant
to powers conferred by the Investigation of Serious Economic Offences
Act 117 of 1991.
[4]
During
1997, and while the Director was examining the evidence gathered, the
respondent launched an application requiring the Director
and the
Minister of Finance to make available to him information collected
and compiled in the course of the investigation and
to allow him
access to tape recordings of certain meetings of the Regional Office
of the State Tender Board. The application was
brought in terms of s
32(1) of the Constitution read with item 23(2)(a) of schedule 6
thereto, the respondent averring that the
information was required by
him in order to determine whether to institute action for damages
against various parties arising out
of the award of the tender. The
parties arrived at a settlement and 1 February 1999 the application
was withdrawn, each party
paying its own costs.
[5]
The
state attorney had attempted to impose a condition that the
settlement would “constitute a full and final settlement of
the
issues between the parties”. The respondent would not agree to
that. His attorney addressed the state attorney on 25
January 1999
as follows:
“
Whereas
we are in agreement with points 1 and 2 of your letter under reply
[i.e. withdrawal and costs], we are somewhat concerned
about the
meaning and ambit of your paragraph numbered 3. Whereas the effect
of withdrawing the application under Case No. 21861/97
is to bring
the same to a final end, it may be that there are issues that arise
between the parties in the future and in the context
independent of
the aforesaid application (more particularly, the action recently
instituted under Case No. 1119/99).
Our
client is on no account prepared to waive any such right which he may
have in the context of the aforesaid action or in any
other context
for that matter.”
The
state attorney yielded. He replied on 27 January 1999:
“
We
note your concern that there may be issues which may arise between
the parties in the future in a context independent of the
pending
application. Your client is obviously at liberty to enforce its
constitutional rights in respect of those issues. However,
we must
state unequivocally that the disruption caused by your client in
OSEO’S office as a result of his unreasonable demand
for
indiscriminate access to all documentation will not be tolerated.
Therefore, as regards the claims made under case number
21861/97, we
trust that these will not be pressed and to that extent our client is
anxious to put this matter to rest.
It
goes without saying that your client is at liberty to exercise his
rights under s 32 of the Constitution in respect of information
reasonably required for purposes of the action instituted under case
number 1119/99.”
The
contention in these proceedings that the respondent was vexatious in
making a second application for access (which is referred
to below)
because everything required had been made available during the
earlier dispute was, unsurprisingly, not pursued with
enthusiasm.
[6]
Events
had, meanwhile, overtaken the application. During January 1999 the
respondent issued summons out of the Transvaal High
Court citing as
defendants the Minister of Finance, the National Government, the
Minister of Welfare and Population Development
and the Premier of the
Western Cape. He claimed,
inter alia
, payment of R102 572
000,00 as damages suffered by the company. He alleged corruption on
the part of certain employees of the
Welfare Department of the Cape
Provincial Administration acting in the course and scope of their
duties, together with one Huisamen,
the majority member of Nisec CC,
negligence in the evaluation and investigation of the tenders, unfair
comparison of the tenders
and unreasonableness in awarding the tender
to Nisec CC and not to the company. In formulating his claim the
respondent made use
of documents furnished to him by the Director and
inspected at his offices.
[7]
The
official investigation culminated in criminal charges against
Huisamen, the employees and two others for fraud and contraventions
of s 1 of the Corruption Act 94 of 1992.
[8]
The
respondent prepared for the civil action. He found that the
information which had assisted him to formulate his claims was
by no
means sufficient for the purposes of presenting the case in court.
Further requests were made for access to documents in
possession of
the Investigating Director, who is presently the first appellant.
(On 16 October
1998 Act 117
of 1991 had been superseded by the
National Prosecuting Authority Act 32 of 1998
- hereinafter referred
to as “the Act”. An Investigating Director appointed
under s 7 of the Act had taken over the
conduct of the Nisec CC
investigation.) Some inspection was permitted.
[9]
The
date set for trial approached. No resolution satisfactory to the
respondent had been achieved. He launched an urgent application
in
which he sought an order compelling the Investigating Director to
allow inspection and to furnish copies of documents described
in the
Notice of Motion as
“
2.1 All documents obtained by the Investigating
Directorate: Serious Economic Offences (IDSEO) or the Office of
Serious Economic
Offences (OSEO) in connection with its investigation
into the circumstances surrounding Tender KT30986MD and the award
thereof
to Nisec CC, from all persons or entities listed in annexure
“NM1” hereto.
2.2 Transcripts of interviews conducted by OSEO/IDSEO
with witnesses in the course of the said investigation whether in
terms of
Section 5 of the Investigation of Serious Economic Offences
Act or
Section 30
of the
National Prosecuting Authority Act or
otherwise.
2.3 Copies of witness affidavits and/or statements
obtained by OSEO/IDSEO whether in terms of the said
Section 5
or
Section 30
or otherwise.
2.4 The forensic report or similar document in respect
of and in support of the criminal charges preferred against M M
Huisamen
and Four Others setting out the basis on which the State
intends to prove its case which document is normally furnished to the
Accused in respect of serious economic offences.
2.5 The Report of OSEO/IDSEO to the Minister of Justice
in terms of
Section 5(12)
of Act 117 of 1991 or, alternatively, the
Report by the Investigating Director to the National Director in
terms of Section 28(12)
of Act 32 of 1998.”
[10]
The
application was opposed by the Investigating Director and the
Minister of Justice. It was heard by De Klerk J in the Transvaal
High Court. He made the following order
“
1. That the first respondent is ordered within a
reasonable time to allow applicant to inspect those documents, listed
in prayers
2.1 as amended, 2.2, 2.3, 2.4 and 2.5 in applicant’s
Notice of Motion, as regards which the first respondent does not
contend
that access should be limited in terms of Section 36 of the
Constitution of the Republic of South Africa Act, 108 of 1996.
2. As regards those documents that the first respondent
submits unrestricted access to applicant should not be allowed, the
first
respondent is ordered, within a reasonable time, to inform
applicant why and how access to those documents should be limited.
3. [That] the applicant is entitled at his own expense
to make copies of the documents made available to him.
4. [That] respondents are ordered to pay applicant’s
costs of the application including the costs of two counsel.”
[11]
The learned Judge found that although s
32(1)(a) of the Constitution conferred an unqualified right of access
to information held
by the State, the respondents in the application
were entitled to restrict the right to access if they were able to
justify the
limitation in terms of s 36 of the Constitution. They
had attempted to do so by relying on s 30 of the Act.
[12]
The learned Judge decided that s 30
“
prescribes an internal control mechanism in the
office of the first respondent. It does not give the first
respondent the discretion
to decide whether a limitation of the right
of access granted by section 32(1)(a) of the Constitution is
warranted.”
Accordingly, he found, the appellants’
attempt to rely on s 30, of itself, whether as a defence to the
request for information
or as a limitation in terms of s 36 of the
Constitution could not be sustained
.
[13]
In terms of
the transitional arrangements set out in item 23 of schedule 6 of the
Constitution the legislature was required to enact
the national
legislation envisaged in s 32(2) of the Constitution to give effect
to the right contained therein within three years
of the date upon
which the Constitution came into effect, i.e. 4 February 1997. Until
such enactment, item 23(2) laid down, s
32(1) was to be read as
providing every person with a right of access to all information
“
held by the state or any of its organs in any
sphere of government in so far as that information is required for
the exercise or
protection of any of their rights”.
Item 23(3) provided that s 32(2) would lapse if the
legislation envisaged in that section was not enacted within the said
period:
Ex parte
Chairperson of the Constitutional Assembly: In
re Certification of the Constitution of the Republic of South Africa
[1996] ZACC 26
;
1996
, 1996 (4) SA 744
(CC) para 83.
[14]
Legislation
to give effect to the right viz, the
Promotion of Access to
Information Act 2 of 2000
was eventually passed by Parliament and
assented to on 2 February 2000, to take effect on a date to be
determined by the President.
That Act, with the exclusion of ss 10,
14, 16 and 51, was, however, only brought into operation on 9 March
2001. It was common
cause between the parties that the deemed
interpretation placed on s 32(1) in item 23(2)(a) lapsed with the
enactment. What
remained was s 32(1) in an unqualified form,
namely
“
Everyone has the right of access to –
(a) any information held by the State; ……”
[15]
The application was launched in the Court
a quo
in
June 2000. The rights and duties of the parties were therefore
governed by s 32(1) unencumbered by the transitional interpretation,
as the Court
a quo
correctly found, notwithstanding that the
appellants had throughout their affidavits relied upon the terms of
the transitional
provision.
[16]
It is in this context then that the
appellants’ continued reliance upon s 30 of the Act as an
answer to the application must
be considered. The construction of
s 30 depends, of course, on the precise terms of that section
understood within its place
in the scheme of the Act and having
regard to the declared intention of the Act and the evils which it is
designed to remedy:
see
Commissioner, South African Revenue
Service v Dunblane (Transkei)(Pty) Ltd
2002 (1) SA 38
(SCA) 46 C
- H and the authorities there cited, and
Standard Bank Investment
Corporation Ltd v Competition Commission and Others; Liberty Life
Association of Africa Ltd v Competition
Commission and Others
[2000] ZASCA 20
;
2000
(2) SA 797
(SCA) 810D – 811A.
[17]
The
Act has been amended by the National Prosecuting Amendment Act 61 of
2000 with effect from 12 January 2001. For present purposes
the
changes brought about are not significant.
[18]
Section
7(1) of the Act authorized the President to establish not more than
three Investigating Directorates in the Office of the
National
Director of Public
Prosecutions
“in respect of specific offences or specified categories of
offences”.
[19]
The
head of each Investigating Directorate was an Investigating Director
who performed the powers, duties and functions of the
Directorate
subject to the control and directions of the National Director (s
7(3)).
[20]
It
is clear from s 7(4) that an Investigating Director might potentially
be assisted by a staff of public servants, “persons
in the
service of any public or other body who are by arrangement with the
body concerned seconded to the service of the Directorate”
and
“any other person whose services are obtained by the
Investigating Director for the purposes of a particular inquiry”.
It is therefore apparent that such assistance might be afforded by
persons not employed by the state or under the day to day control
and
authority of an Investigating Director.
[21]
It
is also clear that the primary target of the Investigating
Directorate was serious crime and not (for want of a better term)
run-of-the-mill criminal activity.
[22]
Section
22 of the Act provided that the National Director of Public
Prosecutions, as head of the prosecuting authority,
“
shall
have authority over the exercising of all the powers, and the
performance of all the duties and functions conferred or imposed
on
or assigned to any member of the prosecuting authority by the
Constitution, this Act or any other law”.
[23]
An Investigating Director could, in addition to the
powers, duties and functions conferred or imposed on or assigned to
him by
the Act, institute actions and prosecute appeals emanating
from criminal proceedings instituted by him or on his authority (s
24(2)).
[24]
Chapter
5 of the Act dealt with “Powers, duties and functions relating
to Investigating Directorates”. In terms of
s 27
“
If
any person has reasonable grounds to suspect that a specified offence
has been or is being committed or that an attempt has been
or is
being made to commit such an offence, he or she may lay the matter in
question before the Investigating Director by means
of an affidavit
or affirmed declaration specifying –
(a) the
nature of the suspicion;
(b) the
grounds on which the suspicion is based; and
(c) all
other relevant information known to the declarant.”
[25]
In
terms of s 28 the Investigating Director was empowered to hold an
inquiry if he suspected that a specified offence had been
or was
being committed and might designate any person referred to in s 7(4)
to conduct it and report to the Investigating Director.
Such an
inquiry would be held
in camera
. For its purposes persons
could be summoned to produce books, documents or other objects and to
be questioned. Such books, documents
or objects could be examined or
retained for further examination or safe custody.
[26]
In
terms of s 29 the Investigating Director or his delegate was
permitted to enter premises and,
inter alia
, make copies of
books or documents found thereon and seize anything which might have
a bearing on the investigation in question
and retain it for
examination or safe custody.
[27]
Then
follows s 30, the section which has given rise to this appeal:
“
Preservation of secrecy and admissibility of
evidence: -
(1) Notwithstanding any other law, but subject to
subsection (3), no person shall without the permission of the
Investigating Director
disclose to any other person –
(a) any information which came to his or her knowledge
in the performance of his or her functions in terms of this Act and
relating
to the business or affairs of any other person;
(b) the contents of any book or document or any other
item in the possession of the Investigating Director; or
(c) the record of any evidence given at an inquiry,
except –
(i) for the purpose of performing his or her functions
in terms of this Act; or
(ii) when required to do so by order of a court of law.
(2) Any
person who contravenes subsection (1) shall be guilty of an offence.
(3) A person from whom a book or document has been taken
under section 28(6)(b) or 29(1)(d) shall, as long as it is in the
possession
of the Investigating Director, at his or her request be
allowed, at his or her own expense and under the supervision of the
Investigating
Director, to make copies thereof or to take extracts
therefrom at any reasonable time.”
[28]
In
the amending Act these provisions are housed in s 41(6), a section
which bears the rubric “Offences and penalties”.
Their
new location probably represents a belated appreciation of their true
substance, as will be discussed below. The authority
previously
conferred on an Investigating Director has been transferred to the
National Director where, to some extent, it has always
resided by
reason of the terms of s 22, referred to earlier.
[29]
Looking at the broad scheme of the legislation which has
been outlined, the following indications are relevant to the role of
the
Investigating Director under s 30:
(1) The legislature directed specific resources to combat serious
crime.
(2) In placing the Investigating Directors at the head of the drive,
the legislature provided them with specific powers to obtain
and
protect information sensitive to the investigation and prosecution of
such crime.
(3) The legislature recognized that the information obtained was,
considering the substance, sources and potential misuse of the
information and the nature of the criminal activities and what was at
stake, vulnerable.
(4) The legislature considered it necessary to provide for the
preservation of secrecy and the safe custody of information pertinent
to an investigation and prosecution. It expressed its concern by
creating a criminal offence. (One of the reasons may well have
been
not merely the interest of the Investigating Director in the
investigation or prosecution, but also a recognition of the harm
which could be caused to innocent persons if free disclosure were
permitted.)
(5) In the context of s 30 the relevant Investigating Director was
invested with the sole duty and responsibility of deciding whether
disclosure might be made. The section recognized two circumstances
when no authority was required from the Investigating Director,
viz.
disclosure in the course of the performance of a functionary’s
duties and disclosure made pursuant to an order of court
requiring
the functionary to do so. The last-mentioned
instance shows the primacy accorded to the courts even within the
scope of s 30.
(6) The powers of an Investigating Director under s 30 were not so
much directed to access to information, which could always be
sought
through the National Director or the Investigating Director himself,
in which case s 30 had no role to play, but rather
against
uncontrolled disclosure of information by persons who might either
have no or insufficient insight into the competing interests
at stake
or no compulsion to recognize such interests.
[30]
The
plain wording of s 30 drives one ineluctably to conclude that
although the Investigating Director might authorize or bar disclosure
by other persons in possession of information, he himself and his
National Director were not persons who required permission.
The
section was not directed to imposing or setting limits on the
National Director or the Investigating Director. The persons
who
were struck by the prohibition were (1) functionaries under the Act;
(2) persons who possessed copies of books, documents
or items of
which the Investigating Director had come into possession in the
course of his duties or who had information about
the contents of any
such book, document or item; (3) persons who had access to the
record of an inquiry held under the Act.
[31]
It
is clear that all three categories included persons who were not, in
their work, subject to the authority of the Investigating
Director.
Persons in the second and third categories might be outside the
public service, unknown to the Investigating Director
and ignorant of
his existence. The description by the Court
a quo
of the
powers of the Investigating Director under s 30 as “internal
control” narrowed the scope of the section inappropriately.
For the same reason I disagree with the submission of the appellants’
counsel that, properly construed, s 30 related only
to the disclosure
of documents by officers and agents of the Directorates.
[32]
Whatever
the nature of the function performed by the Investigating Director
when asked to consider the disclosure of information
in possession of
one of the specified categories of persons, the position was
different when access to information in his possession
was claimed
directly from the Investigating Director himself. He was then in no
different position from any other functionary
upon whom no specific
discretion has been conferred by statute. He was required to come to
a
bona fide
informed decision as to whether access should be
granted or refused. Should he refuse it or grant access
conditionally or partially
the person seeking access had the right to
apply to court in order to enforce his constitutional or other
rights. The court would
then consider the validity of the objection
by the Investigating Director on its merits and particularly, but not
only (as the
order of the Court
a quo
implies), within the
scope of any justification proffered under s 36 of the Constitution.
It is conceivable that valid grounds
of objection may be raised
outside of the constitutional framework. To the extent that
paragraph 1 of the order appealed against
limits that right it
requires to be varied. Although the scheme of the Act, in so far as
it brought the Investigating Director
into possession of the
information
in question and informed his use thereof, might well be relevant, s
30 of itself provided no justification for a refusal
by the
Investigating Director to disclose information. This interpretation
does not in the least run counter to the objects which
the Act sought
to further.
[33]
It
is, in the circumstances, unnecessary to decide whether s 30
conferred a discretion on the Investigating Director, although
it can
be remarked that the indications for the presence of a discretion,
such as the criteria which govern its exercise (and without
which its
constitutionality might be in doubt, cf
Janse van Rensburg NO and
Another v Minister of Trade and Industry and Another NNO
2001(1)
SA 29 (CC) para. 25) and the use of language appropriate to a
discretion, are absent. It does not make much sense to countenance
only a review of the exercise of the powers of the Investigating
Director while the section recognized the right of a court to
order
disclosure by any of the persons subject to the sanction without the
restrictions inherent in review procedures.
[34]
The
interpretation which I have placed on s 30 gives full weight to the
constitutional rights of an applicant both in relation
to access to
information and access to the courts, while leaving open for
recognition the competing interests of the State. By
contrast the
interpretation urged by appellants’ counsel is not easily
reconciled with the values of the Constitution. While
a statutory
provision may be adjudged by a court to operate as a constitutional
limitation on a fundamental right, it is entirely
contrary to the
spirit of the Constitution that the diktat or discretion of a
functionary in the employ of the State should have
that effect. Such
a person is not equipped or empowered to make the necessary
determination. The rights of the subject can only
properly be
protected if the court undertakes that task fully informed by the
evidence and submissions which s 36 contemplates
shall be weighed in
the balance.
[35]
Counsel
for the appellants invited us to embark upon the justification
exercise contemplated by s 36 on the strength of certain
material in
the appellants’ answering affidavit. Even if one begins with
an acceptance that the protection of the right
of access of a civil
litigant to information compiled by the State for the purposes of a
criminal prosecution cannot ever justify
disclosure to which the
accused in the criminal case would not himself be entitled, as to
which see
Shabalala and Others v Attorney General, Transvaal and
Another
[1995] ZACC 12
;
1996 (1) SA 725
(CC) 757 E – I, I think we
would be wrong to do so. It is clear from the affidavits that the
only justification which the
appellants intended to provide was in
the context of the perceived exercise of a discretion under s 30 of
the Act. The respondent
was not called on to meet a justification
under s 36 of the Constitution. In addition, much of the
justification provided was
non-specific, dealing with broad
categories rather than the items in issue. The affidavits also
concede that the Investigating
Director did not consider the request
on its merits. On the papers before us there is no assurance that
any of the documents fall
within any category of justification.
[36]
The
order of the Court
a quo
provides a practical step in the
resolution of the dispute between the parties, which, one may hope,
will be applied by all parties
with less intransigence than seems to
have characterized their relations thus far.
[37]
Lastly,
lest there be any doubt, I should make it clear that in upholding the
order of the Court
a quo
I do not tacitly conclude that all or
any of the documents to which the respondent seeks access amount to
or contain “information”
within the meaning of s 32 of
the Constitution, or should necessarily be made available before the
conclusion of the criminal trial
or are in any way beyond the pale of
justification. Nor do I express any opinion on the applicability of
the
Promotion of Access to Information Act 2 of 2000
to such
subsequent steps as the respondent may take to obtain access to the
documents in question.
[38]
The
order is accordingly:
(a) The
appeal is dismissed with costs, including the costs consequent upon
the employment of two counsel.
(b) Paragraph
1 of the order of the Court
a quo
(see paragraph 10 above) is
amended by the addition at the end thereof of the words “or can
otherwise lawfully be limited
or denied”.
(c) Paragraph
2 of the order is amended by the addition of the words “or denied”.
_________________
J A HEHER
ACTING
JUDGE OF APPEAL
SMALBERGER
ADP) CONCUR
HARMS
JA)
ZULMAN
JA)
NAVSA
JA)