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[1995] ZASCA 125
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Bogoshi v Van Vuuren NO and Others; Bogoshi and Another v Director: Office for Serious Economic Offences (543/93) [1995] ZASCA 125; 1996 (1) SA 785 (SCA); (13 November 1995)
CASE NO 543/93
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between: TPD Case No 23640/92
MOROLE NTHEDI
BOGOSHI Appellant
and
L C J VAN VUUREN NO First Respondent
J D VISSER Second Respondent
THE DIRECTOR: OFFICE FOR SERIOUS
ECONOMIC OFFENCES Third Respondent
In the matter between: TPD Case No 23866/92
MOROLE NTHEDI BOGOSHI First Appellant
ANDREW MOLAMU LEPULE Second Appellant
and
THE DIRECTOR: OFFICE FOR SERIOUS
ECONOMIC OFFENCES First Respondent
L C J VAN VUUREN Second Respondent
JOHANNES ABRAHAM VAN DER WESTHUIZEN Third Respondent
EUGENE DU PLESSIS Fourth Respondent
Coram: CORBETT CJ, NESTADT, VIVIER, HARMS et OLIVIER, JJA
Date heard: 1 September 1995
Date delivered: 13 November 1995
2
JUDGMENT NESTADT, JA
:
In issue in these two appeals is the validity of the seizure
by the respondents, in terms of the Investigation of Serious Economic
Offences Act, 117 of 1991 ("the Act"), of certain documents
of the appellants.
The main question that arises is whether they were protected from seizure by
reason of legal professional privilege.
The appellants, Messrs Bogoshi and Lepule, are attorneys practising in
partnership with each other. The respondents are the Director
of the Office for
Serious Economic Offences ("the director") and certain members of his staff. As
appears from the preamble to the
Act, such office was established in order to
swiftly and properly investigate "serious economic offences". Clearly, this is a
reference
3
to commercial or so-called "white-collar" crime. It is well known
that the
incidence of such crime has in recent years increased. The
Act was obviously
designed to provide special measures to combat
this trend. In terms of sec 5(l)(a) the director may, if he has reason
to suspect that a serious economic offence has been committed, hold
an inquiry into the matter in question. To this end he may designate
an assistant to conduct it. Sec 5(6) empowers the director to
summon any person who is believed to be able to furnish any
information on the subject of the inquiry to appear before the director
for questioning. Sec 6(1) provides that for the purposes of an
inquiry, premises may be entered and searched and documents seized.
The relevant part of the section reads:
"The Director or any person authorized thereto by him in writing may for the
purposes of an inquiry at any reasonable
4
time and without prior notice or with such notice as he may
deem appropriate,
enter any premises on or in which anything
connected with that inquiry is or
is suspected to be, and may -
(a)
(b)
(c) ----
(d) seize, against the issue of a receipt, anything on or in the premises which
in his opinion has a bearing on the inquiry in question,
or if he wishes to
retain it for further examination or for safe custody."
In 1991 a judicial commission began an inquiry into
the
affairs of the Multilateral Motor Vehicle
Accident Fund ("the fund").
This was a body established under Act 93 of 1989
to provide
compensation for third party victims of motor collisions. It
assumed
the liabilities of the Motor Vehicle Accident Fund established by sec
3 of Act 84 of 1986. Early in 1992 the commission reported to the
director that there was evidence that the appellants' firm had
committed certain irregularities in their handling of 21 claims ("MVA
5
claims") against the fund or its appointed agents on behalf of clients. The
suspicion, so it would seem, was that Bogoshi, having
recovered compensation on
behalf of his clients from the fund, had fraudulently failed to pay over the
correct amount to them; instead,
monies had been improperly retained for his or
the firm's own benefit. The director decided to investigate the allegations.
What
then happened was, in summary, the following. On 24 July 1992 members of
the director's staff, acting under a written authority granted
to them in terms
of sec 6(1) of the Act by the director on 6 July 1992, entered the appellants'
offices and in their absence seized
and removed certain of their files (together
with the contents thereof). These files related to six of the MVA claims
referred to
by the commission. One of the files was immediately returned because
it allegedly
6
concerned a current matter. On 5 August 1992 the director,
acting
in terms of sec 5(6), summoned Bogoshi to appear before him on
18
August 1992 in connection with "alleged irregularities
concerning
claims submitted to the Multilateral Motor Vehicle Accident
Fund
and the Motor Vehicle Accident Fund." He was also required to
produce
a number of documents including 15 further files (relating
to the balance of
the 21 claims referred to). On 18 August 1992
Bogoshi appeared in person at
the inquiry. He did not, however,
produce any of the files. The inquiry was
postponed to 25 August
1992. On that day counsel appeared on behalf of
Bogoshi. Counsel
argued that the entire contents of the files were
privileged, that the
clients had not waived such privilege and that the files
therefore need
not be produced. On behalf of the director this was contested.
On
7
2 September 1992 the person designated by the director to hold
the
inquiry ruled that no attorney and client privilege attached to the
files
or their contents. The inquiry was then postponed. This was
to
enable Bogoshi to bring review proceedings in terms of Rule 53.
On 20
November 1992 Bogoshi launched his application ("the first
application"; case
no 23640/92) against the respondents. In the main
the case which he sought to
make out was that the ruling that the
files were not privileged was bad in
law. An order was sought that
the ruling be set aside and that a declarator
should issue that the files
in question need not be produced and that those
already seized be
returned. Four days later, ie on 24 November 1992, the
appellants,
as a matter of urgency, brought a further application ("the
second
application"; case no 23866/92) against the respondents. What
led
8
to it was that on that same day members of the director's staff, acting under
an authority signed on behalf of the director on 20
November 1995 in terms of
sec 6(1) of the Act, had again entered the appellants' premises and seized and
removed a further 1143 files
(relating to MVA claims). The relief claimed in the
second application (based, as before, on
inter alia
the contention that
the documents were privileged) was an order setting aside the authority referred
to and that the files seized
be returned to the appellants.
The respondents opposed both applications. Answering and replying affidavits
having been filed, the matters came before Du Plessis
J, sitting in the
Transvaal Provincial Division. Both applications were heard together. Judgment
was delivered on 2 April 1993. It
has been reported (see
Bogoshi vs Van
Vuuren NO and
9
Others
;
Bogosbi and Another vs Director. Office for
Serious
Economic Offences and Others
1993(3) SA 953(T))- It will
be seen
that it deals with a number of issues besides privilege. I
return to
these later in this judgment; for the moment I confine myself to
the
issue of privilege. In this regard, Du Plessis J's approach was
that
whilst professional privilege was a fundamental right which
prevents
seizure of a privileged document and although the Act did
not
override professional privilege, an attorney's file does not as a
whole
become privileged; true, in this case, the files must be taken to
have
contained some privileged communications; and these were
accordingly
immune from seizure; at the same time, however, the
files would also have
contained non-privileged documents; these
could be seized (see the reported
judgment at 958I-959D; 960D-G).
Applying this reasoning to the first
application, it was held that the
10
ruling made on 2 September 1992 that no privilege attached to the files was
wrong and should be set aside. It was obviously regarded
as being too wide.
However, the rest of the prayers were refused. Seeing that the files per se were
not privileged, Bogoshi was not
entitled to a declarator that the files need not
be produced. Moreover, Bogoshi had not claimed privilege before the five files
were
seized. Whatever privilege existed had been "breached". The return of these
files should therefore not be ordered (963 C-F). As to
costs, it was held that
the respondents were largely successful and should recover 60% of their costs.
Regarding the second application,
there had been a claim to privilege by the
appellants. Du Plessis J was thus faced with the problem of what the fate of the
1143
files should be pending a determination of which documents in
11
each file were privileged and which were not privileged. The learned judge
attempted to reconcile the right of the appellants to have
privileged documents
remain confidential with the respondents' concern that they be preserved. This
he did by adopting "a practical
solution" (961 C-D). It was held that the entire
contents of the files be kept safe "until the question of privilege has been
decided".
The files (having by agreement on 25 November 1992
pendente
lite
been placed in the custody of the registrar of the court) would remain
where they were pending a resolution of which documents were
privileged; in the
meantime those which the appellants claimed were privileged could in the
presence of a representative of the respondents
be removed from the files; they
had, however, still to be kept by the registrar (in a separate, sealed
container); the registrar
would hand
12
the remaining files and their contents to the respondents (961 E-G; 965 E -
966 B). In the result, so it was further held, the appellants
had achieved only
a "very limited measure of success" (965 B), namely, that they could extract
what they claimed were privileged
documents from the files (to be dealt with in
the manner described). But the respondents had been justified in seizing the
files.
And the appellants were not entitled to their return. Accordingly, the
second application was dismissed with costs (excluding those
of the actual
hearing, in regard to which, as I have said, the respondents were limited to
60%).
Against the order in the first application Bogoshi, and against the order in
the second application the appellants, now appeal. They
do so with the leave of
the court below. At the
13
commencement of the hearing of the appeal an order condoning the appellants'
late lodging and delivery of a proper record and their
(alleged) late furnishing
of security was granted. By consent costs of the application for condonation
were made costs in the appeal.
Before us, Mr
Moseneke
. on behalf of the appellants argued what I may
call a preliminary point. It was founded on the decision in
Park-Ross and
Another vs Director: Office for Serious Economic Offences
1995(2) SA 148(C).
This case held (at 172G and 176C) that sec 6 of the Act was in conflict with the
right to privacy contained in
sec 13 (being part of chapter 3) of the
Constitution (Act 200 of 1993) and was accordingly invalid. Counsel submitted
that this being
so, the respondents could no longer rely on sec 6 to justify the
seizures and the documents in question
14
had to be returned. The argument must be rejected. The judgment a
quo
having been delivered before the Constitution came into operation, the appeal
falls to be decided without applying Chapter 3 of the
Constitution. This is the
effect of what was decided by the Constitutional Court in
S vs Mhlungu and
Others
1995(3) SA 867(CC) at 888B-G. The principle is stated in relation to
trial proceedings but obviously it applies also to motion matters.
It follows
that for our purposes effect must be given to sec 6.
What I think needs to be emphasised about the judgment a
quo
is that
it is based on two propositions, namely (i) that there must have been some
documents in each of the files which were not
privileged (and which could
therefore be seized) and (ii) that (as appears from 961B-C) "(i)t is not
claimed
privilege which renders a
15
document immune to production, but
established
privilege" (my
emphasis). The argument for the appellants attacked both
these
findings. It was submitted in the first place that the assumption
in
(i) was erroneous; the probabilities were that the entire contents
of
the files were privileged; at least this should be presumed. As
to
(ii), the principle strongly contended for was that until it had
been
determined which documents in each file were privileged and
which
were not, or unless only identifiable, non-privileged documents
were
sought, there could be no seizure by the respondents of any of
the
files; simply put, because the files contained at least some
privileged
documents, nothing could be seized; were this not so, the
privilege
attaching to confidential documents would be undermined if not
rendered nugatory; even the seizure of privileged documents for
safe
16
keeping only, is inimical to the preservation of
confidentiality.
Relying especially on a passage in
Sasol III (Edms) Bpk
vs Minister
van Wet en Orde en'n Ander
1991(3) SA 766(T) at 785
G-J, as also
the recommendations made in
Park-Ross
(at 172G - 173B) as
to how,
in terms of sec 98(5) of the Constitution, sec 6 should be
corrected
by Parliament, it was said that the respondents should, before
acting
in terms of sec 6, have adopted what was termed the salutary
practice
of first obtaining (possibly ex
parte
) an order of court
authorising the
seizure of the files. Such an order would (as I understood
this "prior
authorisation" argument) specify a procedure for resolving
any
dispute as to the status of the documents but, in the meantime,
would
prevent the respondents from seizing and thus perusing
documents
alleged to be privileged. The order of Du Plessis J, so the
argument
17
concluded, though providing a mechanism of the kind envisaged, came too late;
the unqualified prior seizure should therefore have
been held to have been
invalid and the return of all the files ordered. The argument that the files
must be assumed to have contained
only privileged documents ((i) above) is not
tenable. Indeed, I did not understand counsel to persist in it. The appellants'
affidavits
do not allege that the files contained only privileged documents.
This is not surprising. The broad principle is that only confidential
communications (and material integral thereto) between attorney and client made
for the purpose of obtaining legal advice are privileged.
Obviously, amongst the
multitude of documents usually contained in an attorney's MVA file, there would
be documents and information
which in the ordinary course may be
18
presumed not to be privileged. I have in mind, by way of example, the name
and address of the client; the so-called MV 3 claim form
(which must contain
precise details of the client's heads of damages and the amounts claimed);
written evidence of the identity of
the appointed agent; the pleadings; where
there was a settlement of the claim, an exchange of correspondence between the
parties
evidencing the settlement; and statements of account reflecting the
amount received by the attorney from the defendant, particulars
of the
attorney's fees and disbursements and what the nett amount was that was paid
over to the client (including, possibly, the
paid cheque).
The prior authorisation argument ((ii) above) has more merit. There can be no
doubt that the Act does not exclude the
19
operation of attorney-client privilege (being the species of legal
professional privilege with which we are concerned). Furthermore,
it can, I
think, safely be assumed that because of the fundamental nature of the rule,
those documents in the files which were privileged
would normally be protected
from seizure; in other words that where
privilege applie,a seizure of
documents under sec 6 is,despite the
section's wide wording, ab
initio
to be confined to non-privileged |
documents. (See the discussion on the effect of professional privilege on the
seizure of privileged
documents, by Hoffmann and Zeffertt:
The South African
Law of Evidence
4th ed, 256-7.) The problem raised by the argument is the
essentially practical one of how, when and by whom non-privileged documents
are,
at the initial stage, to be identified and thus separated from those which
are
20
privileged. The issue involved is not altogether a novel one. As appears from
some of the cases cited in the judgment a
quo
, it has arisen before. It
is, however, unnecessary to deal with the point. This is because, as will be
seen, the appellants face
a more basic obstacle to the grant of the relief
claimed in their applications.
It follows from what has been said that the matter must be approached on the
basis that each of the files seized contained some privileged
documents. But
privilege is not cast in stone; it has its limitations. It may be waived. Or it
may be destroyed (see
R vs Barton
[1972] 2 All ER 1192
(Crown Ct) and the
comments of Botha JA on that case in
S vs Safatsa and Others
1988(1) SA
868(A) at 883E-F). There is also the possibility, referred to in
Safatsa
(at 886I), that the court has the power to relax the rules of privilege.
21
But most important for our purposes is the principle that privilege does not
arise automatically. It must be claimed. This may be
done not only by the client
but by the attorney. Indeed, he is under a duty to claim the privilege. However,
because the privilege
is the right of the client, the attorney, in claiming it,
must act not in his own interests or on his own behalf but for the benefit
of
the client. Unless he does so, his claim to privilege may be regarded as not
genuine. And, in this event, a court would be entitled
to disregard the claim to
privilege and admit the document in evidence or permit its seizure, as the case
may be. This has occurred
where the attorney has claimed the privilege
ostensibly on behalf of his client but in truth in order to frustrate an
investigation
into his own alleged criminal conduct. In
re Impounded Case
(Law Firm)
[1989] USCA3 780
;
879 F.2d 1211
22
(3rd Cir 1989) was such a case. It involved the seizure of
documents. At 1213-4 the court said:
"It is not apparent to us what interest is truly served by permitting an
attorney to prevent this type of investigation of his own
alleged criminal
conduct by asserting an innocent client's privilege with respect to documents
tending to show criminal activity
by the lawyer. On the contrary, the values
implicated, particularly the search for the truth, weigh heavily in favor of
denying the
privilege in these circumstances."
(See, too,
Baird vs Koerner
[1960] USCA9 230
;
279 F.2d 623
at 632). The Canadian
courts would seem to adopt a similar approach
(Re Director of
Investigation and Research and Shell Canada Ltd
(1975) 22 CCC
(2d) 70 (FCA) at 80). A further illustration of an ineffectual claim
to privilege (this time by the client himself) is the English case of R
vs Ataou
[1988] 2 All ER 321.
The client was a witness for the
prosecution. Counsel for the accused, in order to impugn the
23
witness's credit, sought to cross-examine him on a record of a
statement he had made to his solicitor (to the effect that the accused
was
innocent of the charge). The Court of Appeal overturned the trial judge's ruling
that without the consent of the witness, cross-examination
on the statement was
impermissible because the statement was privileged. It was held that there was
"no ground on which the client
could any longer reasonably be regarded as having
a recognisable interest in asserting the privilege" (see at 326h). Reference was
made to
Cross on Evidence
, who in dealing with the general rule "once
privileged, always privileged" states (in the 7th ed at 435-6) that "a time may
come
when the party denying the continued existence of the privilege can prove
that the party relying on it no longer has any interest
to
protect...".
24
What is the result of applying these principles to the facts of the present
matter? Had the clients' conduct been the object of the
respondents'
investigations, it would have been the duty of the appellants to assert
privilege on their behalf. But the files were,
of course, required for the
purposes of an inquiry into the conduct of Bogoshi (or that of his firm). The
allegation which the respondents
were investigating was that the clients had
been defrauded. It is, accordingly, difficult to conceive of any of them wishing
to maintain
confidentiality in the files. More particularly is this so seeing
that their claims had been dealt with. Such claims had been paid
or otherwise
disposed of. The files were "closed" and the appellants' mandate had in each
case terminated. If the clients nevertheless
had some recognisable interest in
resisting the respondents' seizure of
25
their files, the appellants' affidavits make no attempt to explain what
it
could have been. There is no evidence that any of the clients had
claimed
privilege or wished to do so. It was in their interests that the
allegations against Bogoshi be properly investigated. An
examination by the respondents of the riles could only have
facilitated this. It would seem, therefore, that the appellants, in
claiming privilege, were not seeking to protect the interests of their
former clients. It is to be inferred that they were rather acting in
their own interests, namely to thwart a proper investigation into their
own conduct. This is the tenor of what the director alleges in his
answering affidavit in the first application. He states:
"I submit that there is therefore no reason why any of the clients,
prima
facie
, would wish to claim a privilege, and in doing so, to make it more
difficult for my office to discover whether the attorney involved
in the matter
still owes
26
additional money to them. It seems to me with respect that the attorney is in
this instance relying on the alleged privilege for
his own purposes and not for
the benefit of the clients."
In his replying affidavit, Bogoshi
does not contest this. Indeed, even
in his founding affidavits (in both
applications) Bogoshi does not, at
least with any clarity, make out the case
that his claim to privilege
was or is made on behalf of the clients. On analysis, all that is really
said is that the files were kept on behalf of clients and that they are
therefore privileged. Had Bogoshi's claim to privilege been as agent
of his clients, one would have expected him to have tendered
production of those documents in the files which were not
privileged. He never did so.
It is, of course, the task of the Court vigilantly to
safeguard legal professional privilege. The right of governmental
27
authorities to enter upon an attorney's office and there to
seize client's
documents must be critically examined. At the same time,
however,
"(i)t is important...that the protection which privilege affords
should
be applied strictly in accordance with the conditions necessary for
the
establishment of privilege" (per Friedman J in
Euroshipping
Corporation of Monrovia vs Minister of Agricultural
Economics and
Marketing and Others
1979(1) SA 637(C) at 643H). But
this is not
always easy. It has been said that cases arise where a
mechanical
application of the rules of privilege is not possible (see
Professor
Paizes:
Towards a Broader Balancing of Interests: Exploring
the
Theoretical Foundations of the Legal Professional Privilege.
(1989)
106 SALJ 109
at 135). In certain respects, ours would seem to
be
such a matter. It is problematic whether the clients can for all
28
purposes be taken to have lost their right to privilege. The affidavits do
not canvass this issue. Nevertheless, I do not think that
on the somewhat
unusual facts of the present matter, privilege was a bar to the respondents'
seizure of the files. In my opinion,
the appellants' reliance on the rule was
misplaced and, I feel bound to add, unfortunate. For the reasons stated, their
claim to
privilege was not a
bona fide
one and should be disregarded.
Nor, as already indicated, is there any reason to think that the clients
themselves might have wished
to claim privilege. It can safely be assumed that
they would not have.
This disposes of the issue of legal professional privilege. The appellants,
however, also attacked the validity of the seizure of
the documents on various
other grounds. One was founded on the
29
submission that the inquiry itself had been irregularly instituted and was
therefore fatally defective. The argument was originally
a twofold one, namely
(i) that the director, in deciding to hold the inquiry, had failed to properly
exercise his discretion in terms
of sec 5(l)(a) of the Act and (ii) that the
summons issued against Bogoshi in terms of sec 5(6) to attend the inquiry was so
lacking
in particularity as to be invalid. It will be recalled that the powers
of seizure granted in terms of sec 6(1) are stated to be "for
the purposes of an
inquiry". I therefore assume that unless the director was entitled to hold an
inquiry, he could not competently
authorise a seizure of documents under sub-sec
(d). Even so, neither point is sound. Indeed, Mr
Moseneke
in oral
argument before us wisely abandoned the first. Du Plessis J rightly (at
962I-963A) held that Bogoshi was not entitled to
30
raise the issue. In the circumstances, it is unnecessary to
deal with
it. I would, however, just say this about it. Far from there
being
inadequate reason for the director to suspect that Bogoshi
had
defrauded his clients and thus committed a serious economic
offence
(this is what the appellants contended), the record reveals
ample
grounds for the director being entitled to entertain such a
suspicion.
As regards the second point, reliance was placed on sec 5(7)(b)
of
the Act. It requires the summons to "contain particulars of the
matter
in connection with which the person concerned is required to
appear before
the Director". The complaint was that the statement
in the summons that
Bogoshi's appearance was required in connection
with "(a)lleged irregularities concerning claims submitted to
the
Multilateral Motor Vehicle Accident Fund and the Motor
Vehicle
31
Accident Fund" was too vague; it did not inform him of the case he had to
meet or indeed that it was his conduct that was being investigated.
I think the
statement is vague; but not fatally so. It must be borne in mind that in terms
of sec 5(6)(a), Bogoshi did not face any
charges; the proceedings were merely an
inquiry (albeit directed at him) with a view to obtaining information. It was
open to Bogoshi
to seek further particulars - as he in fact did. And, as appears
from the reported judgment at 961H-J, there has been an undertaking,
accepted by
Bogoshi, to furnish better particulars -which is where the matter rests.
A further argument was that both warrants (in view of the wording of sec
6(1), they are really authorities) were invalid. I agree
that they constitute a
serious encroachment on the rights of the
32
individual. I shall also, for the purposes of the argument, accept that, like
search warrants issued under
sec 21
of the
Criminal Procedure Act, 51 of 1977
,
they must be carefully scrutinised and strictly construed; and that if the
powers granted have been exceeded or are too general,
the removal of the
documents will be illegal
(Minister of Justice and Others vs Desai, NO
1948(3) SA 395(A) at 403-4;
Divisional Commissioner of SA Police.
Witwatersrand Area, and Others vs SA Associated Newspapers Ltd and Another
1966(2) SA 503(A) at 512D;
Cheadle, Thompson and Haysom and Others vs
Minister of Law and Order and Others
1986(2) SA 279(W) at 282D-J). Both
authorities in identical terms empower those named in them, "for the purposes of
an inquiry instituted
by the Director in terms of section 5(1) of the Act
relating to the matter of alleged
33
irregularities concerning claims submitted to" the fund, to
enter the
appellants' premises "in which there is suspected to be books
and/or
documents...relating to claims submitted to the" fund, and there
inter
alia
to "seize...anything on or in the premises which in
their opinion
has a bearing on the inquiry in question, or if they wish to
retain it
for further examination or for safe custody". The broad
submission
was that (i) the director, in granting the first authority, and
his deputy
in granting the second authority, had failed to properly exercise
the
discretion conferred on them by sec 6; (ii) the authorities failed
to
adequately define what could be seized and (iii) the
authorities
permitted seizure of documents which go beyond the scope of
the
inquiry which is in any event insufficiently identified. I
doubt
whether these matters were properly raised by the appellants in
their
34
founding affidavits or that any appropriate relief was claimed (at least in
the first application). Nevertheless, Du Plessis J dealt
with a similar argument
but rejected it (see at 962G-I). In my opinion, the learned judge was correct in
so doing. In so far as any
exercise of a discretion by and on behalf of the
director arises, ((i) above), there is no basis for challenging its propriety.
It
matters not that the respondents might (with difficulty, I apprehend) have
obtained the information they were seeking from the clients
themselves or from
the fund or their appointed agents. They were entitled to see what the
appellants' files revealed. The files were
obviously an important source of
information as to how the appellants had dealt with the moneys that had been
received from the fund
as compensation for the MVA claims. It is true, in
relation to (ii) above, that the documents
35
to be seized are not specifically particularised. But sec
6(l)(d) does
not require that this be done. The discretion which is afforded
those
authorised is, as the court a
quo
found, in accordance with the
terms
of the section itself. The authorities were thus not too vague.
As
regards (iii) above, only documents which, in the opinion of
those
authorised, have "a bearing on the inquiry" may be seized. So
there
can be no question of documents unrelated to the inquiry being
able
to be removed. But is the inquiry sufficiently identified? I think
it
is. Even though there is no mention of what the alleged
irregularities are or
who committed them, the inquiry is one which
relates to alleged
irregularities in the submission of claims to the
fund. These is no reason to
think that the persons authorised would
not have known what this inquiry
was.
36
The appellants' final argument concerned the seizure of the 1143 files. It
was that the execution of the authority in question was
contrary to the sub
judice
doctrine (as it was termed). This, so it was submitted, was
because the first application in which the respondents' right to seize
the
appellants' files was being challenged, had already been launched and was
pending; the respondents were thus disregarding, or
at least undermining, the
court process; the seizure of the fries on 24 November 1992 should therefore on
this ground alone have
been set aside. I suppose that what was really being
contended was that in acting as they did, the respondents were in contempt of
court and that this amounted to an abuse of the judicial process which the court
a quo, in the exercise of its inherent jurisdiction,
was entitled to prevent.
That the Supreme Court has
37
such a power is undoubted. Whether, however, on this basis, an otherwise
valid authority to seize documents could be set aside is
doubtful. We were not
referred to any authority in support of such a proposition. But it is
unnecessary to pursue the point. In my
opinion, there is no question of the
respondents having acted improperly. They had good grounds for wishing to seize
the files. The
respondents' aim was to preserve them and their contents. There
was an urgent need to do so. The respondents had reason to believe
that relevant
information was being destroyed by Bogoshi. They had reason to fear that the
contents of files were being tampered
with. Bogoshi had failed to fulfil
promises to hand over files and other documents to the respondents. In
particular, he had on 20
November 1992 agreed to allow the respondents to
take
38
possession of all the appellants' closed MVA files for safe-keeping at a
neutral place. This undertaking too was breached. When on
the appointed day,
namely 23 November 1992, the respondents arrived at the appellants' offices for
certain of the files, they were
prevented from taking them. On the following
day, ie 24 November 1992, Bogoshi specifically refused to hand over any files to
the
respondents. The appellants deny certain of these allegations but the court
a
quo
rightly found (at 9561) that the second application had to be
decided on the respondents' version. This being so, the respondents
were within
their rights to seize the 1143 files on 24 November 1992. Appellants' argument
that because the first application was
then pending they were not so entitled,
must
39
therefore also fail.
The appellants also attacked the court a
quo's
costs order. I did not,
however, understand it to be argued that if the appeal failed on the merits,
there was any basis for interfering
with Du Plessis J's discretion. I do not
think there is.
One last word. It follows from my finding that the appellants were not
entitled to rely on privilege, that the ruling to which I earlier
referred was,
in its effect, correct (though given for the wrong reasons). This means that the
order a
quo
as to how the 51es are to be dealt with was unduly favourable
to the appellants. However, there being no cross-appeal by the respondents,
it
(and the costs orders) must stand.
40
The appeals are dismissed with costs including the costs of two counsel.
H H Nestadt Judge of Appeal
Corbett, CJ )
Vivier, JA ) Concur
Harms, JA )
Olivier, JA )