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[2002] ZASCA 63
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Pretoria Portland Cement Company Ltd. and Another v Competition Commission and Others (64/2001) [2002] ZASCA 63; 2003 (2) SA 385 (SCA) (31 May 2002)

IN THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
Reportable
Case No
64/2001
In the matter between
Pretoria Portland
Cement Company Limited First Appellant
Slagment (Proprietary)
Limited Second Appellant
and
The
Competition Commission First Respondent
Menzi
Simelane Second Respondent
Ahmore
Burger Third Respondent
Astrid
Ludin Fourth Respondent
Wimpie
Britz Fifth Respondent
Before: Nienaber, Howie, Schutz, Zulman and
Nugent JJA
Heard: 7
May 2002
Delivered: 31
May 2002
Search and seizure under
the
Competition Act 89 of 1998
– warrant issued by judge in terms
of
s46
– whether acts judicially or administratively – in any
event judge not to be cited as a party – dicta to the contrary
wrong
– refusal to hand over affidavit on which warrant obtained –
denial of right to know accusation faced - insinuating uninvited
television crew – serious invasion of privacy – either an abuse
of court process or a wrongful or unconstitutional act under
s49
(1)
of the Act or the Constitution – warrant set aside.
_______________________________________________________________
JUDGMENT
_______________________________________________________________
SCHUTZ
JA
[1] This appeal is concerned with the validity of
a search and seizure operation conducted in terms of a warrant issued
under s46
of the Competition Act 89 of 1998 (the Act) on 3 and 4
August 2000. The search was conducted by the Competition Commission
(the
Commission) established in terms of the Act. The premises
searched were those of the first appellant, Pretoria Portland Cement
Co
Ltd (PPC), and the second appellant, Slagment (Pty) Ltd
(Slagment). PPC is a major producer of cement. Slagment processes
blast
furnace slag which is used as an ‘extender’ in some
cements. It was owned in equal shares by PPC and two other cement
producers,
known as Alpha and Lafarge. PPC managed and controlled
it.
[2] Four court orders were made by four different
judges, sitting in the Transvaal Provincial Division. The first was
granted
ex parte
and
in camera
by Spoelstra J on 2
August 2000 under case no 9803/2000. He directed that warrants be
issued against PPC and Slagment in terms of
s46, mentioned above, and
that the proceedings not be made public ‘until the execution of the
order.’ The order did not include
a return day (as perhaps it
should have done) nor did it make express provision for opposition by
the appellants. On the same day
Spoelstra J signed a s46 warrant
authorizing the Commission to enter, inspect, search and make
enquiries at the appellants’ premises.
Attached to the warrant was
a list of the classes of documents which might be sought. The order
was signed by the registrar and
in signing the warrant Spoelstra J
described himself as a judge sitting in chambers. The search
commenced on 3 August and proceeded
on 4 August.
[3] That evening the second order was granted by
Bertelsmann J under case no 19803/2000. It was signed by the
registrar. Bertelsmann
J ordered that ‘[p]ending the determination
of final relief’ to set aside the warrants and have returned what
had been seized,
the Commission was to place all seized materials in
the hands of the registrar for safe keeping and was to be restrained
from having
access to or reading them. An interdict restraining
further execution of the warrant was also granted. This order had
been obtained
on the strength of oral evidence. Accordingly, the
appellants were required to file their notice of motion and founding
affidavit
within a week. This was done on 11 August. Dates for the
filing of an answer and a reply were also stipulated and the matter
was
postponed
sine die
. Although the Commission had been
given notice of the urgent application before Bertelsmann J it did
not appear to oppose the relief
sought. In fact it consented to the
relief being granted.
[4] The third order was made by Roux J on 24
August 2000 under case no 19803/2000. It arose out of an allegation
in the founding
affidavit of the appellants that they had been
advised, as a matter of law, that Spoelstra J, whose original order
was under attack,
had to be cited as a respondent. Accordingly he
was so cited, even though no relief was sought against him. As s25
(1) of the Supreme
Court Act 59 of 1959 states that no summons (which
includes a notice of motion) in a civil action may be issued against
a judge out
of a court without the consent of that court, leave was
sought from Roux J to give such consent. He refused to do so,
stating that
whereas the appellants had elected to rely on a review
‘or a quasi-review’, Spoelstra J as a matter of law acted as a
judge and
not in an administrative capacity, and, since a judge’s
decisions are not subject to review, he could not be subjected to
review.
Hence there was no basis for his joinder.
[5] Accordingly the appellants proceeded to the
stage of the fourth order without Spoelstra J in effect having been
cited as a respondent.
The application which had been launched on 11
August 2000 came before Daniels J. He made his order on 20 September
2000 under case
no 19803/2000. It is his decision, adverse to the
appellants, that is before us. Leave to appeal to this court was
granted by him.
He also ordered that pending the appeal the holding
order made by Bertelsmann J was to stand. The substance of Daniels
J’s judgment
was that the appellants’ claims for the ‘setting
aside’ of the warrants, for the return of materials seized, for an
interdict
forbidding disclosure of any information obtained and for
the punishment for contempt of the Commission and various persons
involved
in the search at PPC’s premises on 3 August (that is the
first to fifth respondents), were all dismissed.
[6] The non-joinder of Spoelstra J, having come
about in the way I have described, then becomes the subject of a
point
in limine
taken by the Commission. The point in brief
is that in issuing the warrant Spoelstra J was acting, not as a
judge, in the sense
of a court, but in an administrative capacity,
that both the substance and the form of the appellants’ application
was a review,
that joinder of the decision-maker had not been
effected as is required by law, and accordingly that the application
was fatally
defective. Before dealing with this point it is
necessary to set out some relevant parts of the Act, as it was before
amendment
by Act 39 of 2000 in December 2000, both for purposes of
the point
in limine
as also for some of the subsequent
questions which arise.
The Act
[7] Section 45 empowers the Commissioner (the head
of the Competition Commission – the second respondent in this case,
Mr Menzi
Simelane) to direct an investigation of a complaint
initiated by itself or received from an outsider. Persons questioned
by an inspector
conducting the investigation must answer questions
truthfully and to the best of their ability but do not have to
incriminate themselves.
Section 45 (4) deals with the issuance of a
summons in these terms:
‘
(4) At any time during an investigation, the
Commissioner may summon
any
person who is believed to be able to furnish any information on the
subject of the investigation, or to have possession or control
of any
book, document or other object that has a bearing on that subject-
(a) to appear before the Commissioner or a person
authorized by the Commissioner, to be interrogated at a time and
place specified
in the summons; or
(b) to
deliver or produce to the Commissioner, or a person authorized by the
Commissioner, any book, document or other object referred
to in
paragraph (a) at a time and place specified in the summons.’
[8] Section 46, aforementioned, deals with the
authority to enter and search under warrant. It requires quotation
in full:
‘
46(1) A judge of the High Court, a regional
magistrate or a magistrate may
issue a warrant to enter and search any premises that
are within the
jurisdiction of that judge or magistrate, if, from
information on oath
or affirmation, there are reasonable grounds to believe
that-
(a) a
prohibited practice
has taken place, is
taking place or is likely to take place on or in those
premises
;
(b) that anything connected with an investigation into
that
prohibited practice
is in the possession of or under the
control of, a person who is on or in those
premises
.
(2) A
warrant to enter and search may be issued at any time and must
specifically-
(a) identify the
premises
that may be entered and
searched; and
(b) authorize an inspector or a police officer to enter
and search the
premises
and to do anything listed in section
48.
(3) A warrant to enter and search is valid until one of
the following events occurs:
(a) the warrant is executed;
(b) the warrant is cancelled by the person who issued it
or, in that person’s absence, by a person with similar authority;
(c) the purpose for issuing it has lapsed; or
(d) the expiry of one month after the date it was
issued.
(4) A warrant to enter and search may be executed only
during the day, unless the judge, regional magistrate, or magistrate
who issued
it authorizes that it may be executed at night at a time
that is reasonable in the circumstances.
(5) A person authorized by warrant issued in terms of
subsection (2) may enter and search
premises
named in that
warrant.
(6) Immediately before commencing with the execution of
a warrant, a person executing that warrant must-
(a) if the owner, or person in control, of the
premises
to be searched is present-
(i) provide identification to that person and explain to
that person the authority by which the warrant is being executed;
and
(ii) hand a copy of the warrant to that person or to the
person named in it; or
(b) if
none of those persons is present, affix a copy of the warrant to the
premises
in a prominent and visible place.’
[9] Section 47 provides for entry and search of
certain premises even without a warrant, if the person in control
consents, or if
the inspector has reasonable grounds for believing
that a warrant would be granted under s46, if sought, but that the
delay in obtaining
it would defeat the object of the entry and
search.
[10] Section 48 deals with powers of entry and
search. It provides:
‘
48.(1) A person who is authorized under section 46 or
47 to enter and search
premises
may-
(a) enter upon or into those
premises
;
(b) search those
premises
;
(c) search any person on those
premises
if there
are reasonable grounds for believing that the person has personal
possession of an article or document that has a bearing
on the
investigation;
(d) examine any article or document that is on or in
those
premises
that has a bearing on the investigation;
(e) request information about any article or document
from the owner of, or person in control of, the
premises
or
from any person who has control of the article or document, or from
any other person who may have the information;
(f) take extracts from, or make copies of, any book or
document that is on or in the
premises
that has a bearing on
the investigation;
(g) use any computer system on the
premises
, or
require assistance of any person on the
premises
to use that
computer system, to-
(i) search any data contained in or available to that
computer system;
(ii) reproduce any record from that data; and
(iii) seize any output from that computer for
examination and copying; and
(h) attach and, if necessary, remove from the
premises
for examination and safekeeping anything that has a bearing on
the investigation.
(2) Section 45(5) applies to an answer given or
statement made to an inspector in terms of this section.
(3) An inspector authorized to conduct an entry and
search in terms of section 46 or 47 may be accompanied and assisted
by a police
officer.’
[11] Section 49 deals with the manner in which an
entry and search is to be conducted. It reads in part:
‘
49(1) A person who enters and searches any
premises
under section 48 must conduct the entry and search with strict regard
for decency and order, and with regard for each person’s
right to
dignity, freedom, security and privacy.
(2) During any search under section 48(1) (c), only a
female inspector or police officer may search a female person, and
only a male
inspector or police officer may search a male person.
(3) a person who enters and searches
premises
under section 48, must before questioning anyone-
(a) advise that person of the right to be assisted at
the time by an advocate or attorney; and
(b) allow that person to exercise that right.
(4) A
person who removes anything from
premises
being searched must-
(a) issue a receipt for it to the owner of, or person in
control of, the
premises
; and
(b) return it as soon as practicable after achieving the
purpose for which it was removed.
(5) During a search, a person may refuse to permit the
inspection or removal of an article or document on the grounds that
it contains
privileged information.
(6) ………’
Section 46 (3) (b) Out Of
The Way
[12]
Much argument in the
Heads was devoted to a contention by the Commission that the
appellants’ application amounted to one for ‘cancellation’
under the subsection, that it was a necessary ‘jurisdictional fact’
that the person issuing the warrant was ‘absent’ before
another
was approached and that this had not been alleged, so that the
application was bad. During argument Mr Gauntlett, for the
Commission, abandoned this argument, conceding that the subsection
was not exclusive as to the form in which relief may be sought.
I
consider that this concession was rightly made. The purpose of the
subsection, as it was put in another context, is ‘to aid
an
applicant, not to shackle him’ – per Kriegler AJA in
Jockey
Club of South Africa v Forbes
[1992] ZASCA 237
;
1993 (1) SA 649
(A) at 661F-G.
Non-suiting For Non-joinder Of Spoelstra J?
[13] The Commission’s point
in limine
,
described in para [6] above, presents a stultifying conundrum.
Unless the appellants are to pursue the rather dubious course of
an
appeal against Roux J’s order, they are left without a remedy, a
distasteful result.
[14] It may be possible in
this particular case
to avoid such a result by holding that the process was in fact
judicial, regardless of what s46(1) contemplates. Thus the
Commission
first approached the court by notice of motion, through
its registrar, in order to go before a judge, in the normal way. The
judge
would then have weighed up the information placed before him in
his official capacity on oath or affirmation, in order to decide
whether there were reasonable grounds to believe in the existence of
the jurisdictional facts set out in the subsection. Then he
had to
exercise a discretion – a judge ‘may’ issue a warrant. In the
course of exercising his discretion he would no doubt
have had regard
to the relative degrees of prejudice to the applicant for the
warrant, which represented the public, if he should
refuse to issue a
warrant yet in truth its suspicions were well-founded, or to the
respondent if it should emerge that the belief
on which its issuance
was based was ill-founded. Apart from reaching a decision on the
merits of the application the judge also
made decisions such as that
the matter could be brought
ex parte
, that it could be heard
in camera
and that its order should not be made public. Then
he issued a court order before signing the warrant. When the
appellants did
succeed in offering resistance, they came to court,
and so forth and so on. All of this has the appearance and substance
of judicial
process.
[15] But even if it is open to us to reach a
decision on this narrow ground, on the facts of this case, I do not
think we should do
so. The first reason for not so doing is that it
would avoid the real question, what does s46(1) contemplate? The
second is that
such a decision would offer little guidance when other
sections contained in different legislation have to be considered.
[16] That being my conclusion it seems that there
are two avenues to explore. The first, much argued before us, is
whether in the
contemplation of s46(1) Spoelstra J was to act as a
court, that is judicially, and not as an administrative officer
subject to review,
so that his joinder would be inappropriate for
that reason. The second is whether, even if he did act in an
administrative capacity,
it was not in any event inappropriate to
join him, because of his being a judge.
Judicial Or Administrative
[17] That it is dangerous invariably to classify a
warrant issued by a judge as having been issued in a judicial or an
administrative
capacity is illustrated by the judgment of Wessels JA
in
Prinsloo and Another v Newman
1975 (1) SA 481
(A) at 505,
in which he contrasted s42 of the old Criminal Procedure and Evidence
Act of 1955 (warrant for the search of a person
or of premises) with
s28 of the same Act (warrant for the arrest or further detention of a
person). The learned judge suggested
that s42 conferred a discretion
of a judicial nature on a judicial officer, one not justiciable save
in very exceptional circumstances,
whereas the decision to be made by
a judicial officer under s28 was not of a judicial nature. These
sections are quoted in two cases
cited in
Prinsloo
, s42 in
Divisional Commissioner of SA Police, Witwatersrand Area and
Others v SA Associated Newspapers Ltd and Another
1966 (2) SA 503
(A) at 510D-F and s28 in
Groenewald v Minister van Justisie
1973
(3) SA 877
(A) at 882C-D.
[18] Although
South African Association of
Personal Injury Lawyers v Heath and Others
[2000] ZACC 22
;
2001 (1) SA 883
(CC)
was concerned with a different issue, namely the constitutionality of
a law allowing a judge to perform what might be perceived
as
executive functions, the judgment of Chaskalson P at 901G – 902A
recognizes that the granting of a search warrant which authorizes
the
invasion of someone’s privacy may be of a ‘non-curial’
character (at 900H). This passage was relied on by Mr Gauntlett
as
supporting his submission that a judge acting under s46 acts in an
administrative capacity.
[19] Mr Gauntlett also relied upon a passage in
Hunter et al v Southam Inc
(1984) 9 CRR 355.
The question at
issue was whether it was constitutional for legislation to allow a
search to be authorized by a member of the Canadian
Restrictive Trade
Practices Commission. In holding that it was not Dickson J said (at
369):
‘
While
it may be wise, in view of the sensitivity of the task, to assign the
decision whether an authorization should be issued to
a judicial
officer, I agree with Prowse J.A. that this is not a necessary
precondition for safeguarding the right enshrined in s.
8. The
person performing this function need not be a judge, but be must at a
minimum be capable of acting judicially.’
[20]
The emphasis in this
judgment is on the person authorizing a search being neutral and
unbiased. However it recognised that not only
judges have these
attributes, so that it is permissible to nominate a non-judge,
provided he also exhibits these attributes. Then
it is said that
such a person must behave ‘judicially’. I do not think that this
case provides the answer either.
[21] Then the Commission relies on
Ferela (Pty)
Ltd and Others v Commissioner for Inland Revenue and Others
1998
(4) SA 275
(T) at 285D-I,
Deutschmann NO and Others v
Commissioner For The South African Revenue Service; Shelton v
Commissioner For The South African Revenue
Service
2000 (2) 106
(E) at 121F-G and
R v Msweli and Another
1947 (1) SA 216
(N).
These cases are cited as showing that the issuance of a warrant is an
administrative and not a judicial act.
R v Msweli
is so
patently distinguishable that I shall not trouble to distinguish it.
The judgments in
Ferela
and
Deutschmann
do contain
statements supportive of the Commission’s argument. But
Ferela
went off on the basis that the section there in question provided
a procedure for the challenge of a warrant issued by a judge, and
Deutschmann
was concerned with whether notice of an
application for a warrant had to be given, not with the manner of
challenging a warrant.
Moreover, it all depends on the section in
question and its context. In any event we are not bound by these
decisions, which, if
the sections with which they were concerned are
directly comparable with s46, are wrongly decided in the respect with
which I am
concerned, for the reasons set out below.
[22] Mr Brassey, for the appellants, relies on
Investigating Directorate: Serious Economic Offences and Others v
Hyundai Motor Distributors (Pty) Ltd and Others: In Re Hyundai
Motor
Distributors (Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001 (1)
SA 545
(CC). In issue was the validity of a warrant in terms of
s29
of the
National Prosecuting Authority Act 32 of 1998
. The scheme of
s29
is broadly similar to that of the
s46
now under consideration.
Section 29(4)
provides that entry, search, inspection, copying and
seizure may only be effected ‘by virtue of a warrant issued in
chambers by
a magistrate, regional magistrate or judge …’, and he
‘may’ issue it only if ‘there are reasonable grounds for
believing
that …’. In the course of the judgment of Langa DP
there is a repeated emphasis on the fact that only a judicial officer
may
authorize a search. See for instance ‘The nature of the
judicial officer’s function …’ at 554E, in connection with the
constraints
on the powers of the investigating authority; ‘a
judicial officer’ at 563C-D, in connection with the legislature’s
concern
for constitutional rights in interposing a judicial officer
between the inspector and the citizen and ‘the judicial officer’
at 567C-D, in connection with the safeguards in the legislation
justifying a limitation of a citizen’s right to privacy. But this
case, also, is, in my opinion, not decisive of the question under
consideration. The emphasis is upon the fact that a judicial officer
issues a warrant (as the section under consideration in that case
also provided) not upon the nature of the capacity in which that
officer acts or the question whether he must be joined.
[23] Some light, some little further light, is
thrown on the subject by those textwriters who deal with the question
whether a tribunal
operating outside the court structures acts in a
judicial capacity, such that its decisions are final, absent some
higher appellate
tribunal or special legislative provision. Wiechers
in the section
Administrative Law
in Joubert (ed)
The Law
of South Africa First Reissue
Vol 1 para 67 points out that there
are formal characteristics of judicial action, the accessibility of
the organ to the general
public, the holding of an open hearing, the
possibility of legal and factual argument and the requirement that
judicial officers
must have legal qualifications. The fact that the
application made to Spoelstra J was heard
ex parte
and
in
camera
does not necessarily detract from the requirement of
openness, because in exceptional circumstances judges do hear matters
on this
basis. As to the requirement of legal and factual argument,
when the various applications are viewed as one, as they should be,
as I shall explain below, the requirement is satisfied, in that both
parties were ultimately entitled to place their cases before
a judge.
Wiechers proceeds:
‘
A
judicial act is the final and binding solution of a legal dispute or
uncertainty between two or more parties by an application of
the law
to a given set of facts whereby the rights and duties of the parties
to the dispute or legal uncertainty are authoritatively
determined.’
[24] These requirements had all been met by the
time that Daniels J made his order. Viewing the proceedings as a
whole his decision
was final, subject only to an appeal. On these
matters see also Burns
Administrative Law Under the 1996
Constitution
99-101 and Devenish, Govender and Hulme
Administrative Law and Justice in South Africa
97-99. But
even these things having been said, it is still not clear that for
the purpose under consideration Spoelstra J is to
be treated as
having acted in a judicial capacity.
[25] As one proceeds with the trawl through the
cases cited and the textbooks the impression grows that one is
getting further and
further from the answer. Perhaps the reason for
this is provided by Baxter
Administrative Law
344:
‘
Once
an administrative act has been labelled, the legal rules and
principles applicable to it are supposedly clear. But the scheme
of
classification which has been adopted is in truth simplistic and
misleading. It reflects more accurately attitudes of judicial
activism or restraint than
the relevant characteristics of the act
in question
, and the process of classification has led to a form
of sterile conceptualism in which categories and concepts which were
originally
adopted as convenient descriptive labels have come to be
regarded as the original data themselves: the labels approximately
describing
particular characteristics have been mistakenly adopted as
complete descriptions of all the characteristics of the act in
question.
It has been forgotten that classification is simply a
method by which complex data is organized for the purpose of analysis
and
comprehension, and that no more than limited assistance is to be
derived from the classificatory labels. A brief consideration of
how
the labels have been employed will demonstrate the resulting
confusion.’ (Emphasis supplied.)
[26] The judicial/administrative debate threatens
to become the legendary fifth wheel on the coach. Far more
productive I think it
would be to have regard to the ‘characteristics
of the act in question’, as Baxter puts it. As Schreiner JA said
in
Pretoria North Town Council v A1 Electric Ice-cream Factory
(Pty) Ltd
1953 (3) SA 1
(A) at 11B-C:
‘
[O]ne
must be careful not to elevate what may be no more than a convenient
classification into a source of legal rules. What primarily
has to
be considered in all these cases is the statutory provision in
question, read in its proper context.’
Judges Not To Be Joined
[27]
These considerations lead
me on to the second avenue of exploration, whether, even if Spoelstra
J in a technical sense did act in
an administrative capacity, it is
inappropriate to join him, because of his being a judge.
[28] It is instructive to see how Rose Innes
Judicial Review of Administrative Tribunals in SA
11 handles
the matter:
‘
There
is no procedure, other than in the form of an appeal, whereby the
proceedings of the Supreme Court may be brought on review.
There is
no right of review from the decision of a judge of the Supreme Court,
either by statute or at common law.
Conceivably
, if a judge
in chambers or the court makes an administrative decision or makes an
administrative order, i.e. if the judge sits as
an administrative
officer and not as a judicial officer and the proceedings before him
are proceedings of an administrative nature
and not civil or judicial
proceedings
53
, review will lie on proper grounds.’
(Emphasis supplied.)
[29]
The authority cited for
the first sentence in this passage (there is no review) is
Ex
parte Scott
(1909) 26 SC 520.
See also
Gentiruco A G v
Firestone SA (Pty) Ltd
1972 (1) SA 589
(A) at 600E – 603H esp
at 601E-F,
R v Mans
(1867) 5 Searle 285
,
Junker v The Queen
(1884) 3 SC 46
, Roux J’s judgment in this case, referred to above,
and J L Taitz
The Inherent Review Jurisdiction of the Supreme
Court
, a thesis presented to the University of Cape Town for the
degree of Doctor of Laws in July 1983. The learned author Rose Innes
significantly uses the word ‘conceivably’ when saying that there
may be situations where a judge making an administrative order
may be
open to review. This means, if the author is correct, and I think
that he is, that there are situations, readily conceivable,
where he
is not open to review. Footnote 53 is also instructive. It reads:
‘
For
example, in Southern Rhodesia an application by an alien for
naturalization is referred by statute for decision by the High Court,
and in such proceedings the Court performs, it seems, an
administrative function –
Ex parte Zelter
,
1951 (2) S.A. 54
(S.R.) at 55; but cf.
Ex parte Buffenstein
,
1952 (1) S.A. 429
(S.R.) at 430. In such cases, however, in the absence of legislative
provision to the contrary, the court does not abandon its ordinary
practices, more particularly the fundamental principles of its
ordinary procedures; e.g. it will not permit the consideration of
a
matter not adduced in open court and available to all interested in
the proceedings –
Ex parte Zelter, supra
, at 55.’
[30]
The judgment of Tredgold
C J (Morton and Beadle J J concurring) in
Ex parte
Zelter
1951 (2) SA 54
(SR) reads in part (at 55A-F):
‘
The
application by an alien for naturalisation is referred by the Act for
decision by the High Court, and the normal procedure of
the High
Court does not permit the consideration of a matter not adduced in
open Court and available to all interested in the proceedings.
It
is clear that in making a grant of naturalisation, the High Court is
performing an administrative function. The question is whether
this
fact justifies so radical a departure from its usual practice. There
are indications in the Act that the Legislature contemplated
that in
considering naturalisation applications the High Court might take
cognisance of matters brought to its notice in a manner
which it
would ordinarily regard as irregular. But we are nevertheless faced
with the cardinal consideration that the applications
are referred to
the High Court, not to a Judge of the Court sitting as a Commissioner
of Naturalisation but to the Court itself.
There is an important
distinction between the setting up of an administrative tribunal and
the reference of an administrative matter
to an existing judicial
body. In the latter case the intention that the judicial body is to
abandon the first principles of its
ordinary practice is not lightly
to be inferred. We feel that if the Legislature intended this it
would have said so in express
terms and not left it to be effected by
regulations made under the general terms of an empowering clause. We
hold therefore that
the proviso to sec. 13 is
ultra vires.
Having so decided, we do not feel that we can accept a report which
is laid before us on condition that we do not disclose it to
the
applicant.’
[31] The legislation referred to in this case was
the Southern Rhodesian Citizenship and British Nationality Act 13 of
1949, particularly
sections 10 to 14 and 39. The Registrar of
Citizenship who had received an application for citizenship which had
been advertised,
so as to allow of objections, would transmit to the
Registrar of the High Court the application, any opposition made
thereto and
other relevant papers. The applicant would then have to
provide the High Court with such evidence as it might require. He
would
also have to appear personally before the Court, which would
decide on the naturalisation application and transmit its decision to
the Registrar of Citizenship. Section 39 empowered the Chief Justice
and other judges to make rules regulating matters to be dealt
with by
the Court under the Act. The provisions of s4 of the High Court
Practice and Procedure Act (chapter 9) would apply to these
rules.
Zelter’s
case therefore differs from the one before us in
that in that case the application was to be addressed to the High
Court itself and
not to a judge of that Court, and further in that
the form of the procedures to be adopted before the Court were, to an
extent, specifically
prescribed.
[32] An example of a South African statute
conferring on the High Court the power to order seizure of property
is afforded by
s38
of the
Prevention of Organised Crime Act 121 of
1998
. There the National Director of Public Prosecutions is
empowered to apply to the High Court
ex parte
for an order
prohibiting a person from dealing with any property and for its
seizure. Before granting such an order the Court must
be satisfied
that there are ‘reasonable grounds to believe’ either that the
property concerned is an instrumentality of a scheduled
offence or
that it is the proceeds of unlawful activity.
[33] Are we to accept that there is a fundamental
difference between a statute that refers to a judge and one referring
to the High
Court? If the one expression is used, is the decision to
be open to review with the necessity for joinder, whereas if the
other
is used, it is not? Before answering these questions I would
observe that by whichever name he is named a judge would surely be
as
little prepared to ‘abandon the first principles of its ordinary
practice’, meaning
audi alteram partem
in the
Zelter
case, as was Tredgold CJ. In my opinion there should be no
difference in result depending upon the expression used, that is, in
the case of a judge of the High Court. A judge will behave like a
judge should.
[34] The reason behind this conclusion is to be
found in the history of review procedure. The pattern of review may
be fairly complicated
today and is to a considerable extent governed
by statute. But the essential nature of review is simple. It is a
means by which
those in positions of authority may be compelled to
behave lawfully. As Bell J put it quite early in our South African
jurisprudence,
in
Central Road Board v Meintjies
(1855) 2
Searle 165
at 176:
‘
[I]t
is quite new to me to hear that, even in such a case [where a road
board empowered to raise a rate for one purpose proposed using
it for
another], the subject cannot be protected in this Court from the
illegal exactions of the Government.’
[35] Review is not directed at correcting a
decision on the merits. It is aimed at the maintenance of legality,
at the administration
of ‘the law which has been passed by the
Legislature’ as Bell J put it on the same page of
Meintjies’s
case. And throughout it has been the High Court, and only the High
Court, acting through its judges, that has enjoyed the general,
inherent jurisdiction to entertain reviews. It is not itself the
subject of review – see the cases cited in para 29. There are
other means, quite sufficient means, to which I shall come, by which
the judgment of a judge may be corrected.
[36] The primary means of correction of judicial
error is appeal to a higher court, which is appropriate where a judge
has reached
a final decision. But if an
ex parte
order has
been granted, that may be corrected by another single judge through
the ordinary processes of the court. (I shall explain
the processes
relevant to this case below.) Once this is so all need for the
joinder of a judge falls away. In an appeal or a rehearing
of a
matter in which an
ex parte
order has been made, grounds which
before other tribunals may be raised as review grounds may equally be
raised in the appeal or
rehearing. But that does not make such a
proceeding a review.
[37] It follows that in so far as there are
statements to be found to the effect that there should be joinder
when a judge’s decision
is ‘reviewed’, in
Jinnah v Laattoe
and Others
1981 (1) SA 432
(C) at 434E-F,
Ferela’s
case
(above) at 285F-G,
Deutschmann’s
case (above) at 114F,
Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and
Others
2000 (2) SA 934
(T) at 943G-H, 946H–947F and
Kolbatschenko v King NO and Another
2001 (4) 336 (C) at 343H,
344D, I disapprove of such statements and consider them to be wrong.
[38] There are good reasons of policy why judges
should not be joined. In the first place there is no need for it.
Judges know perfectly
well that their decisions may be upset by a
higher court on appeal, or even by another single judge in the case
of an
ex parte
order. If one’s order is set aside one’s
vanity may be pricked but one’s function is finished. Perhaps the
judge will be
consoled by the reflection of Ulpian, contained in D
49.1.1, that an appeal sometimes alters a well-delivered judgment for
the worse,
as it is not necessarily the case that the last person to
pronounce judgment judges better. It is not for judges to
participate
in any stage subsequent to their judgments in order to
defend their decision. Indeed it would be improper to do so, except
in those
rare cases when an obligation to provide information arises.
Secondly, on grounds of convenience, I do not think that the time of
judges should be wasted filing affidavits in support of their
decisions. The place to explain a decision is in a judgment. Once
given it is given. Nor should the court have its time wasted
considering invidious applications for leave to sue a judge under s25
(1) of the Supreme Court Act. Thirdly, and most importantly, it is
not in the public interest that judges should become embroiled
in
disputes between parties who have appeared before them. It is a
matter of the utmost importance that judges should be seen as
impartial and, in the kinder sense, aloof.
[39] My conclusion is therefore that in the
context of a High Court judge the debates in which judicial is
contrasted with administrative
and a judge with a court are
essentially sterile. For argument’s sake I am prepared to accept
that Spoelstra J acted administratively
and I accept that s46 (1)
nominated a judge and not the Court. For all that he did not need to
be cited, indeed should not have
been cited, which means the end of
the non-joinder point.
[40] It needs to be emphasized, however, that the
essential function of a judge is to decide disputes between citizen
and citizen
and between citizen and state. The temptation for
politicians and the executive to cloak their actions with the
respectability attaching
to the judicial name seems to prevail
throughout the world and there have been times when judges have
allowed themselves to be misused.
But in the
Heath
case the
Constitutional Court has made it clear that there are strict
constitutional limits to the judiciary being employed for
non-judicial
purposes, and rightly so. That case should serve as a
warning that judges should not unnecessarily be drawn into matters
which do
not properly fall within their sphere. Judges should not be
called upon to perform administrative functions, and where their
services
are properly engaged I would suggest that legislation should
refer to a court and not a judge. A judge is a judge, not a
functionary
of convenience.
[41] The conclusion I have expressed as to judges
not being joined does not mean that a judge will never be engaged in
disputes between
others. Where a decision has nothing to do with
judicial duties (as where a judge acts as a commissioner in a
commission of enquiry)
the judge may be cited and where a personal
attack is made on a judge, such as bias, the judge should be given
notice of the allegation
and so be allowed the choice to intervene.
[42] What I have said about the non-reviewablility
of a judge does not, of course, apply to a magistrate. A magistrate
is subject
to review, so that the peculiar problem that has had to be
addressed in this case does not arise in the case of a magistrate.
[43] In para 36 I undertook to explain the
procedures by which an
ex parte
order of a judge may be
attacked. The explanation follows.
The True Nature Of The Proceedings
[44]
Schlesinger v Schlesinger
1979 (4) SA
342
(W) was concerned with an attempt to oppose an order which had
been granted
ex parte
. Le Roux J stated, correctly (at 347 if
– 348A):
‘
On
principle, however, it seems to me that any person who shows a direct
and substantial interest in the proceedings, and whose affidavit
indicates that his opposition might contribute something to a just
decision of the case, should not be deprived of an opportunity
of
being heard.’
[45]
The principle is expanded
upon by Nugent J in
Ghomeshi–Bozorg v Yousefi
1998 (1) SA
692
(W) at 696D-E as follows:
‘
It
must be borne in mind too that an order granted
ex parte
is by
its nature provisional, irrespective of the form which it takes.
Once it is contested and the matter is reconsidered by a
court, the
plaintiff is in no better position in other respects than he was when
the order was first sought. (
Banco de Mocambique v Inter-Science
Research and Development Services (Pty) Ltd
1982 (3) SA 330
(T)
at 332B-D) and there is no reason why he should be in a better
position in this respect merely because the defendant was unaware
that he was called upon to submit to the court’s jurisdiction for
the purpose of an impending action.’
[46] See also
M V Rizcun Trader (4); M V
Rizcun Trader v Manley Appledore Shipping Ltd
2000 (3) SA 776
(C)
at 784G – 785C and
Drive Control Services (Pty) Ltd v Troycom
Systems (Pty) Ltd (N-Trigue Trading CC Intervening)
2000 (2) SA
722
(W) at 723H – 724B.
[47] One is concerned here with one of the most
fundamental principles of our law –
audi alteram partem
. A
party’s right to a hearing cannot be lost merely because a judge
hearing an urgent application omitted to provide for a return
day or
to expressly draw to his attention the respondent’s right to resist
relief obtained against him without his knowledge.
[48] When the matter is approached with the
correct principles in mind all four proceedings emerge as one single
case, all four orders
were properly termed ‘court orders’, even
though they were made at different stages by four different judges.
It is no wonder
that all the orders bear the same case number. And
that case was started by the Commission, not by the appellants.
Although they
were ordered at the second stage by Bertelsmann J to
file a notice of motion and founding affidavit, that affidavit when
filed was
largely in the nature of an answering affidavit, to which
was added information as to the manner in which the search had been
conducted.
With the possible exception of the post-warrant events,
if the matter is approached in the manner I have suggested it may be
that
the onus and the operation of the
Plascon Evans
rule is
reversed. The fact that the appellant’s first affidavit was called
a founding and not an answering affidavit is a matter
of form, not
substance, and the law is concerned with substance.
[49] For all these reasons the Commission’s
point
in limine
may be put aside and we may proceed to the
merits of the appellant’s ‘application’. But first some brief
background facts.
Background
[50] Early in the year 2000 the Commission
informed the appellants that it had received a complaint of their
abuse of their dominant
position from a firm called Ashcor.
Information was requested from them and at least some information was
given. As the months
went by the attitude of PPC became established
that it had done what it was asked to do, in so far as it could
discern what the Commission
was really seeking, that it was not clear
what prohibited practices it was supposed to be involved in, that it
was ready to deal
with the Commission in a non-adversarial way, and
in particular that it would like to discuss the future shape of the
cement industry
with a view to banishing the imputation of
monopolistic practices. Also as the months went by, the Commission’s
view hardened
into a belief that PPC was concealing the facts,
playing for time and merely pretending to co-operate. By now the
Commission’s
suspicions had broadened to include possible breaches
of s4 of the Act (restrictive horizontal practices), s8 (abuse of
dominance)
and s9 (price discrimination by dominant firm). An
important reason why these suspicions were aroused was that one
Patterson, no
less important a person than the managing director of
Slagment, came into contact with one Maritz, who was the chief
inspector appointed
to conduct the investigation. He informed Maritz
of certain alleged monopolistic practices of the three main cement
producers (Apha,
Lafarge and PPC) which involved the manipulation of
Slagment, which they owned. Documents evidencing these allegations
were to be
found at Slagment, and, Maritz concluded, they were to be
found also at the premises of PPC, which managed Slagment. At a
stage
Patterson recommended that the Commission act ‘swiftly’ in
order to ensure that the delivery of information ‘is not
co-ordinated
by one of the cement producers’ as Maritz put it,
quoting him. The Commission then served summonses on the appellants
calling
upon them to produce a vast range of documents. The summons
directed at PPC was 17 pages long. This is to be contrasted with the
document, some one and a half pages long, listing the documents that
the Commission was really looking for, with which the inspectors
armed themselves before setting out on the search. The summonses
were withdrawn late in July 2000, shortly before the warrants
were
sought because, say the appellants, they threatened having the
summonses set aside by a court, because, says the Commission,
it did
not wish to waste further time and money on the summons route.
Shortly after the withdrawals Maritz learned from Patterson
that one
Gommersall, group managing director of PPC, had spoken to him and
been told of Patterson’s contact with Maritz. According
to
Patterson, Gommersall had told him to break off contact with Maritz
unless he was summoned. Patterson also remarked that he was
back in
the ‘cement camp’. The application for the warrant followed on 2
August 2000.
[51] To revert to the summonses, I shall not say
much about them, as they were withdrawn, and no longer feature
directly in the case.
But I would say that the decision to withdraw
them was probably a wise one, as they seem to fit the description of
a subpoena given
by Page Wood VC in
Lee v Angas
(1866) 2 Eq 59
at 63 as calling upon a witness ‘to ransack his papers’. See
also the remarks of Mahomed CJ in
Beinash v Wixley
[1997] ZASCA 32
;
1997 (3) SA
721
(A) at 735C concerning an offending subpoena:
‘
The
language used is of the widest possible amplitude, including within
its sweep every conceivable document of whatever kind, however
remote
or tenuous be its connection to any of the issues which require
determination ….. Not the slightest basis is suggested
to support
the belief that any of these documents exist at all or that, if they
do, they can be of any assistance in the determination
of any
relevant issue …’
[52] This said, it is now possible to turn to the
reasons why the appellants say that the warrants should be set aside
and the products
of the search be returned.
Appellants’ Grounds Of Complaint
[53] The complaints are:
1. The warrants were ‘wrongly issued’, as
Daniels J applied the wrong criteria and also because there were in
any event no reasonable
grounds for believing that prohibited
practices had taken, or were taking or would take place.
2. The search warrants were unlawful because they
were overbroad, or because they conferred a subjective discretion on
the inspectors
or because their issuance was based on reasons and
grounds for which the Act makes no provision.
3. The search warrants were executed unlawfully
because:
(a) the inspectors were complicit in the entry of
a SABC television crew onto PPC’s premises, where the proceedings
were filmed,
such entry being unauthorised and contrary to Spoelstra
J’s order and the terms of s49 (1) of the Act. There was similar
complicity
in the entry of e-TV at Slagment.
(b) the inspectors failed to hand over a copy of
the application for the warrant, despite request.
(c) the inspectors removed copies of PPC’s
computer hard drives from their premises.
4. the application should not have been brought
ex parte
.
5. the Commission withheld relevant information
from Spoelstra J or furnished him with misleading information, in
that it failed
to disclose the full co-operation that the appellants
had given to it and was factually incorrect in conveying that
Patterson had
told them that documents would be altered, suppressed
or destroyed.
I think it convenient to start with complaint no
3 as it seems to me to be decisive of the appeal.
The Manner Of The Search
[54] Before dealing with the events of the 3
rd
and 4
th
August 2000 it is necessary to make some prefatory
remarks. A perusal of the sections which I have quoted shows two
things. The
first is that the legislature has placed power in the
hands of the Commission. That is as it should be, as monopoly is a
canker
that eats into a free enterprise economy. The second is that
the legislature showed an awareness that power may be abused and so
went to lengths to see that constitutional values were respected. In
this connection see, among many other things, especially the
references to decency, order, dignity, freedom, security and privacy
in s49 (1).
[55] That the appellants have established on the
papers two real complaints about the manner in which the search was
conducted is
to my mind clear. The first may broadly be described as
hampering the appellants in their efforts to approach a court in
order to
have the warrant set aside. The second consists in the
impropriety of the invitation to the SABC and e-TV surreptitiously to
invade
the premises of PPC and Slagment respectively.
[56] The first complaint largely hinges on the
failure of the inspectors to provide the appellants with a copy of
the affidavit which
the Commission had used to obtain the warrant,
despite repeated requests for it. Gommersall, aforementioned,
arrived at PPC’s
premises not long after the search party had
entered. One Burger led the team. (Maritz led the team at
Slagment). Gommersall’s
attorney requested that the search be
halted whilst the Court was approached in order to test the validity
of the warrant. Burger
declined and after a time the search
proceeded. Requests for a copy of the affidavit were met with the
answer that only the Commissioner,
Simelane, the second respondent,
had a copy and that repeated attempts to reach him on his cell phone
had met with no success. This
went on throughout the day. As later
emerged, roundabout midday Simelane was parked in PPC’s car park,
uninvited, giving an interview
to the SABC. When this was revealed
in the affidavits, Burger for the first time conceded that she had
seen him there but claimed
that she had not spoken to him. Her words
were: ‘I happened to be walking to my car about ± 12:45
when I saw the Commissioner
being interviewed. I did not stop to
speak to him as I was required in the offices’. I find this
stilted explanation impossible
to accept. PPC’s legal
representatives had been pressing her for a copy of the affidavit and
according to her she had been making
real attempts to reach Simelane
on his cell phone, without success. Why could she not have directed
a brief request to him, even
if she would have had to wait a minute
or two? As for the compulsion to return to the office, surely she
had enough helpers to allow
her to be absent for a short while. It
comes as no surprise that on the next day (the 4
th
) the
Commission dropped the tactic of evasion and instead bluntly refused
to provide a copy of the affidavit. I also find it difficult
to
believe the statement implicitly if not expressly made, that the
inspectors did not have a copy of the affidavit with them. After
all, it was Maritz who had just previously made the affidavit on the
strength of which the warrants had been obtained.
[57] In the Commission’s answer to the
appellants’ application Burger made the main affidavit concerning
events at PPC and Maritz
the main one concerning those at Slagment.
The example I have just given of unsatisfactory evidence is by no
means the only one.
Both their affidavits are replete with evasion,
simple denials instead of a version and failures to meet statements
that needed
to be met. I realize that they have not had the
opportunity of proving themselves in the course of oral evidence, but
at times this
all becomes so unsatisfactory that one is driven to
accept some of the details set out in the appellants’ affidavits
which intensify
the egregious facts which are common cause.
[58] An example is afforded by Maritz’s handling
of Gommersall’s complaint. Gommersall squarely accuses the
Commission of a deliberate
strategy to refuse PPC access to the
affidavit in order to deprive it of a basis for attacking the
warrant. Maritz’s response
is that all that s46 (6) requires is
that the person handing over the warrant must identify himself and
explain the authority by
which the warrant is being executed. The
Commission, he says, ‘acted in the letter and spirit of this
section’. Gommersall
then complains that PPC’s request that the
search be deferred pending an application to court was refused, this,
he says, in breach
of subsections 49 (1) and 49 (3) (b) of the Act,
and in violation of the appellants’ constitutional rights to
privacy, dignity
and just administrative action and their rights of
access to a court in terms of sections 10, 14, 33 and 34 of the
Constitution.
To this Maritz’s response is that the appellants’
legal representatives were present and there was nothing stopping
them from
going to court. Perhaps so. He proceeds ‘I therefore do
not understand the allegation that applicants were not permitted to
approach
a court of law’. To do what, one may ask, without knowing
what they had to meet? Subsections 49 (3) (a) and (b) enjoin the
person
executing the warrant to allow the person in control to
exercise the right of being assisted by an advocate or attorney. Is
that
advocate or attorney then to be deliberately denied the means of
providing that assistance? As I had occasion to remark in
Naude
and Another v Fraser
[1998] ZASCA 56
;
1998 (4) SA 539
(SCA) at 563F ‘There is
little point in granting a person a hearing if he does not know how
he is concerned, what case he has to
meet.’ Otherwise, in this
case, an
ex parte
application would become an application
ex
parte
squared. I find Maritz’s alleged failure to understand
contrived.
[59] My conclusion on this aspect of the case is
that Gommersall’s complaint was justified. Having obtained an
ex
parte
order the Commission did all it could to complete its
search before the appellants could reach a court.
[60] The second main complaint, as I have said, is
the invasions by two TV teams. The facts are these. On the evening
of 2 August
2000 the SABC and e-TV were alerted by an official of the
Commission, one Coode, that it would be performing a search and
seizure
operation the next day. They were not told whose premises
were to be searched but it was arranged that they would meet with the
Commission’s team at Halfway House the following morning. This was
done and the entourages proceeded in convoy to the premises
of PPC
and Slagment. The arrival at the premises was enough to tell the
camera men who was going to be searched. This was already
a breach
of Spoelstra J’s order prohibiting publication before execution.
What if the Commission representatives had told the
TV team that they
had to effect their own entry, they had told the truth to the gate
attendant that they intended to photograph a
search inside PPC’s
premises, they had been refused entry and had then photographed the
exterior of the premises for the delectation
of the general public?
To take what happened at PPC, the party entered the car park through
a control gate and its members presented
themselves at the premises.
The camera crew had not been invited to enter PPC’s grounds, nor
did any court order permit them to
do so. These facts, which are
common cause, together with the further undisputed fact that there
was no express identification of
the camera crew when they entered
the building, already constitute a grave invasion of PPC’s right to
privacy.
[61] At this point comes another quibble. The
Commission contends that Spoelstra J’s order was not breached by
the entry into the
premises because the prohibition contained in it
fell away at 9 am when the premises were entered in order to commence
the search.
This cannot be so. The warrant was not executed until
the search and seizure was completed. Such an interpretation of the
order
would have allowed PPC an opportunity of approaching a court
with the possibility that the warrant would be set aside. That is
the
sensible interpretation and surely what the court had intended.
This view is re-inforced by the wording of s46 which draws a
distinction
between ‘commencing the execution’ (s46 (6)) and
‘executed’ (s46 (3) (a)).
[62] I can only conclude that the Commission was
intent on advertising itself, with no regard to the harm it might do
to its suspects.
Not all firms suspected of monopolistic practices
are guilty of them and it must be remembered that the innocent among
the suspects
might be harmed, or even put out of business by bad
publicity, with consequences not only for the shareholders but also
the workers,
and indeed the public at large.
[63] The impression of publicity-seeking is
re-inforced by Simelane’s uninvited media interview held in PPC’s
own car park. There
is another aspect of his conduct that deserves
comment. In his replying affidavit Gommersall stated that the book
kept at the entrance
gate reflected that at 12:40 Simelane had signed
and stated in the Whom Visited column, ‘MD’. Gommersall added
that it was simply
untrue for Simelane to have said that he intended
visiting the managing director. And we know from one of the
Commission’s witnesses
that the meeting in the car park was
pre-arranged. Now it is true that Simelane had no right or duty to
answer this allegation,
made in reply, but I would have expected him
to offer to do so if Gommersall’s imputation of dishonesty were
false.
[64] To proceed with the search at PPC. The SABC
crew entered the premises as if they were members of the Commission’s
team and
started filming events. No express attempt was made by the
Commission’s team to identify them, as I have said, and for a time
the PPC employees, quite understandably, assumed that they were there
in that capacity. Then Gommersall’s secretary, Margaret
Sherry,
asked who these people were (referring to the TV crew) and she was
told that they were from the SABC. At first she thought
that the
answer was a joke. None of PPC’s witnesses said that the crew
members were actually introduced as part of the Commission’s
team,
but it was clear that it was PPC’s case that they had been
stealthily smuggled in. Yet, this is the way in which Bester
handles
the matter:
‘
As
we entered through the access door, Margie asked: ‘Is it
everyone?’ I said yes, not in any way applying my mind to the
presence
of the SABC team. I at no point claimed that the SABC crew
was part of our staff. In fact what I had anticipated was that when
we arrived at the first applicant someone would demand ID’s of
everyone …’
[65] Maritz’s explanation is equally lame:
‘
I
further deny that Burger and/or Ludin, or any member of the
Commission, represented that the SABC was part of the delegation from
the Commission.’
This is a good example of blunt denial coupled
with evasion, of the sort of which I have spoken.
[66] The whole of the conduct of the Commission
representatives smacks of rampant triumphalism. When Margaret Smith
remarked that
she thought that her informant as to the identity of
the TV crew was joking, a Commission representative laughed and said
‘this
[is] big news’. When Ms Sherry confronted Ms Ludin, the
fourth respondent, with the fact that the TV crew had been sneaked
in,
the response was ‘this [is] the way that search seizure
procedures [are] conducted’ (this despite the fact that later Ms
Ludin
told her that this was the first search and seizure carried out
by the Commission and the first such operation in which she had been
involved).
[67] It is clear that the conduct of the
Commission representatives caused great indignation, unsurprisingly
so. Looking back in
retrospect Gommersall said in his reply:
‘
What
the Commission really wished to do was to give themselves maximum
publicity at how powerful and important a body they were and
how they
would teach business a lesson by humiliating them and knocking them
into submission. The whole operation was an exercise
in power and
abusive in its nature and it is for this very reason that PPC and
Slagment have resolved to bring these proceedings.
It is
unconscionable that reputable companies should be subjected to such
abusive behaviour.’
[68] These are strong words, but I think there is
substance in them. It remains to be added that in some respects the
Commission
representatives obeyed the injunctions of the Act
scrupulously, but that cannot negate the improprieties that I have
described.
[69] I do not intend devoting time to the
remaining complaint about the execution, namely that the expert Britz
retrieved information
from PPC’s hard drives and failed to hand
over to the Registrar the copies he had made. The process followed
by Britz was to extract
erased material from the hard drives and
this took a long time. Whether or not Britz exceeded the terms of
the warrant, I do not
think that his behaviour nearly equates that of
the Commission’s team, even though I do not underestimate the
potential importance
of the information that he may have obtained.
[70] Daniels J said that he could not condone the
actions of Burger and Maritz in relation to the media, but that he
could not find
that they had intended to commit contempt of court
(the appellants had also asked for contempt relief). He did not do
anything further
about their conduct. The question is, what should
we do about it?
Consequences Of The Commission’s Behaviour in
Executing The Warrant
[71] I take a serious view of the Commission’s
conduct and am of the view that we must make it clear that we will
not allow persons
or businesses to be subjected to an abuse of power
and must also make it clear to the Commission that it also is subject
to the Constitution
and the law and must accordingly mend its ways in
certain respects. The effective way of achieving these ends is, in
my view, to
set aside the whole of the proceedings commenced by the
Commission when applying for a warrant. What it decides to do
thereafter
is for it to decide. I must emphasize that the facts
which I have set out, even the undisputed facts, involve a gross
violation
to the appellants’ rights to privacy under the
Constitution and s49 (1) of the Act, and also of the appellants’
rights of resort
to a court. These are fundamental matters.
[72] The basis for the entire setting aside of the
search procedures to date may depend upon the nature of Spoelstra J’s
function.
If he acted judicially then the law provides remedies if
its process is abused, as when a search of the kind just described
takes
place. A good example of this is to be found in some of the
Anton Piller
cases in which the courts have rightly insisted
on strict compliance with their orders. See for instance,
Easyfind
International (SA) (Pty) Ltd v Instaplan Holdings and Another
1983 (3) SA 917
(W) at 931E–933H and
Petre & Madco (Pty) Ltd
t/a T-Chem v Sanderson-Kasner and Others
1984 (3) SA 850
(W) at
855A-I. An
Anton Piller
order is obviously different from the
type of order granted by Spoelstra J, but it has certain essential
elements in common, namely
its
ex parte
nature, the drastic
invasion of rights it brings about, and the serious consequences it
can have for the respondent. It is because
of these features that
the courts have insisted on maintaining a firm grip upon the
execution of
Anton Piller
orders.
[73] If, on the other hand, the warrant is not a
court process and the ensuing search does not constitute the
execution of a court
process, then the inherent jurisdiction of the
High Court to prevent abuse of its process would be absent. But I
see no reason why
that fact should exclude the setting aside of the
whole process. The basis would then be wrongful failure to obey the
injunctions
of the Constitution and s49 (1), especially with regard
to privacy. The Commission has important work to do, but it is not
to frighten
the horses. Once one is satisfied that there has been a
serious breach of those duties, there is no call for a delicate
severance
of the various constituents of the Commission’s acts. It
should be made to start with a clean slate. The execution was bad
because
it involved
inter alia
a gross, and as yet
inadequately explained, invasion of privacy by taking along the TV
media. Notionally, an unlawful execution
will not by itself
inevitably taint a warrant that is itself regular. In this case,
however, the Commission’s affidavits show
that media accompaniment
was a component of the plan very early on. Coode denies that she
contacted the media before the order was
obtained but nobody denies
that the media contact was thought of before the order was obtained.
The most plausible inference is
that it was. The circumstances are
therefore that this major affront to privacy taints the entire
process.
The Other Relief
[74] This being my conclusion it is unnecessary to
consider the further grounds advanced by the appellants, they being
set out in
paras 1, 2, 4 and 5 contained in para 53 above. I would,
however, point out, with a view to the future, that serious questions
are
raised by the argument that the warrants are overbroad, imprecise
and not in accordance with the Act. I refrain from making any
further comment, other than to say that a warrant should be tailored
for the occasion, not simply taken from stock.
Conclusion
[75] For these reasons the appeal must succeed.
The following order is made:
1. The appeal is
allowed with costs including the costs of two counsel.
2. The order of the
court
a quo
dismissing the appellants’ application with
costs is set aside and replaced with the following:
a. The warrants against the first and second
applicants issued by Spoelstra J on 2 or 3 August 2000 are set aside.
b. The first to fifth respondents are to return
forthwith all documents, records, data and other property (‘the
documents’) of
the applicants seized under the warrants.
c. The applicants are authorized to take
possession of the documents under the control of the Registrar placed
with him pursuant
to an order dated 4 August 2000.
d. The first to fifth respondents and their
employees and agents are interdicted from disclosing any information
that has come to
their knowledge in the course of the execution of
the warrants and the documents yielded from the execution of the
warrants.
e. The first to fifth respondents are ordered to
pay the costs of this application (including the costs of the
application before
Bertelsmann J), such costs to include the costs of
two counsel, jointly and severally.
_____________
W P
SCHUTZ
JUDGE OF
APPEAL
CONCUR
NIENABER JA
HOWIE JA
ZULMAN JA
NUGENT JA