CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 146/22
In the matter between:
GASTON SAVOI First Applicant
INTAKA HOLDING (PTY) LIMITED Second Applicant
FERNANDO PRADERI Third Applicant
and
NATIONAL PROSECUTING AUTHORITY First Respondent
SOUTH AFRICAN POLICE SERVICE Second Respondent
Neutral citation: Savoi and Others v National Prosecuting Authority and Another
[2023] ZACC 38
Coram: Kollapen J, Madlanga J, Majiedt J, Ma kgoka AJ, Mathopo J,
Potterill AJ, Rogers J and Theron J
Judgments: Theron J (unanimous)
Heard on: No hearing
Decided on: 28 November 2023
Summary: Section 32 of the Superior Courts Act 10 of 2013 — legal
professional privilege / litigation privilege — in camera review —
procedure
ORDER
On appeal from the High Court of South Africa, KwaZulu -Natal Division,
Pietermaritzburg:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the High Court of South Africa, KwaZulu-Natal Division,
Pietermaritzburg is set aside and replaced with the following:
“(a) The applicants’ interlocutory application in terms of section 32 of
the Superior Courts Act 10 of 2013 is granted with costs, including
the costs of two counsel.
(b) The procedure for considering the contested documents will be as
follows:
(i) The portion of the proceedings that relate to determining the
status of the contested documents is to be held in camera.
(ii) The court determining the status of the contested documents
must keep a record of the proceedings. If it is determined
that a particular contested document is not privileged, the
part of the record which pertains to that document shall
become public.
(iii) Only the representatives of the respondents who sign the
confidentiality agreement attached to this order are
permitted to appear in court during those proceedings.
(iv) Any person present in court during the in camera
proceedings is not permitted to be involved in the
subsequent investigation or prosecution of the applica nts.
However, if all the contested documents are not privileged,
this prohibition will fall away.”
3
4. The respondents are to pay the costs of the applicants in this Court,
including the costs of two counsel.
JUDGMENT
THERON J (Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ
and Rogers J concurring):
Introduction
[1] Section 34 of the Constitution guarantees the right to have disputes resolved in a
“fair public hearing”. The principle of open justice is the operating principle in our
constitutional democracy. In South African Broadcasting Corp Ltd ,1 this Court held
that “[t]he public is entitled to know exactly how the Judiciary works and to be reassured
that it always functions within the terms of the law and according to time -honoured
standards of independence, integrity, impartiality and fairness”. Section 32 of the
Superior Courts Act2 codifies this principle as follows:
“Save as is otherwise provided for in this Act or any other law, all proceedings in any
Superior Court must, except in so far as any such court may in special cases otherwise
direct, be carried on in open court.”3
[2] In this matter , the Court is called upon to determine the appropriate judicial
procedure for considering documents that are allegedly protected from disclosure by
legal professional privilege, but necessary for the determination of an application for a
1 South African Broadcasting Corp Ltd v National Director of Public Prosecutions [2006] ZACC 15; 2007 (1)
SA 523 (CC); 2007 (2) BCLR 167 (CC) at para 32.
2 10 of 2013.
3 Id at section 32.
THERON J
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permanent stay of proceedings, and whether a deviation from the open justice principle
is justified.
Background and litigation history
[3] The applicants in this matter – Mr Gaston Savoi, Intaka Holdings (Pty) Limited
and Mr Fernando Praderi – are currently pursuing an application for a permanent stay
of prosecution before the High Court of South Africa, KwaZulu-Natal Division,
Pietermaritzburg (Pietermaritzburg High Court) . The applicants are charged with
bribery, racketeering, money laundering, fraud and corruption in relation to an alleged
criminal enterprise involving the supply of water purification plants and oxygen
self-generating units to the provincial health departments in KwaZulu -Natal and the
Northern Cape. There are separate High Court prosecutions against them in the
KwaZulu-Natal Division and the Northern Cape Division. The basis of the permanent
stay application is that 69 documents/categories of documents ( contested documents)
were seized from them by the state, allegedly in violation of legal professional/litigation
privilege. The applicants contend that the extent of this violation of privilege will have
the result that prosecuting them would tarnish the administration of justice.
[4] In order to prevent further encroachment on their right to legal professional
privilege, the applicants brought an interlocutory application in the Pietermaritzburg
High Court in terms of section 32 of the Superior Courts Act requesting that it employ
a mechanism to consider the contested documents in camera (in private) . The
respondents, the National Prosecuting Authority (NPA) a nd the South African
Police Service (SAPS), opposed the interlocutory application. They dispute that the
contested documents are in fact privileged. The present matter is an application for
leave to appeal against the Pietermaritzburg High Court’s decision in the interlocutory
application.
[5] The contested documents were identified in an annexure to the founding affidavit
before the Pietermaritzburg High Court, but the Court did not have sight of the
documents. The majority judgment in the Pietermaritzburg High Court held that, to
THERON J
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establish a “special case” in terms of section 32 of the Superior Courts Act, the
applicants were required to prove their claim of legal professional privilege, which they
failed to do. The majority judgment further held that the descriptions of the documents
in the annexure were insufficient to support a claim of privilege. In contrast,
Henriques J, in her minority judgment, held that the privileged status of the documents
need not be determined in interlocutory proceedings.
[6] The Pietermaritzburg High Court also upheld two in limine complaints raised by
the respondents. It held that an order made by Nkosi AJ (Nkosi AJ order), also in the
Pietermaritzburg High Court, which prevents the state from accessing certain
documents (some of which are among the contested documents in this case) pending
the criminal court’s determination of the documents’ status, had the effect of precluding
any court other than the criminal cou rt from making a decision in respect of the
documents listed in that order . The Pietermaritzburg High Court also held that it had
no jurisdiction over the Northern Cape prosecutions.
[7] The applicants sought leave to appeal from the Full Court and the Supreme Court
of Appeal. Both applications for leave to appeal were refused. A reconsideration
application in the Supreme Court of Appeal was also refused.
Jurisdiction and leave to appeal
[8] This matter involves balancing the right to legal professional privil ege and the
principle of open justice, both of which are constitutional principles derived from the
Bill of Rights. It raises constitutional issues that go to the core of the administration of
justice in an open and democratic society. The applicants have reasonable prospects of
success. This Court’s jurisdiction is thus engaged and it is in the interests of justice for
leave to appeal to be granted.
THERON J
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Submissions in this Court
[9] The applicants were requested to make written submissions on the following
questions:
(a) whether a party seeking a deviation from the open justice principle on the
basis that documents required for the determination of a case are subject
to legal professional privilege must first establish such privilege;
(b) whether an in camera hearing entails permanent secrecy of the
proceedings;
(c) the implications, if any, of Nkosi AJ’s order on another court’s ability to
make a decision relating to the documents that are the subject of that
order; and
(d) the jurisdiction of the KwaZulu -Natal Division in respect of the
Northern Cape cases.
[10] In respect of the first question, the applicants submit that resolving the privilege
question at the interlocutory stage prejudges an issue that is central to the permanent
stay application. Further, that by refusing t o determine the procedure through which
the privileged documents would be dealt with in the permanent stay proceedings, the
Pietermaritzburg High Court decided that the appropriate procedure was to deal with
that question in open court in interlocutory pro ceedings (and without regard to the
content of all of the contested documents). The applicants say that a premature
determination of this kind amounts to judicial overreach. In addition, they say that the
Pietermaritzburg High Court’s determination of the privilege question unduly “goes
behind the oath” of the applicants that the documents in question are privileged. Even
if there is an onus to prove privilege, the applicants submit that they met that onus.
[11] The respondents sub mit that the applicants were required to establish the
documents’ privileged status. The remainder of their submissions on this question relate
to whether the applicants met this onus. In the respondents’ submission, the list of
supposedly privileged documents that the applicants presented to the Pietermaritzburg
THERON J
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High Court provides insufficient information to support a claim of privilege. The
respondents do not make any legal submissions suggesting why such an onus is
appropriate.
[12] The applicants submit that an in camera hearing does not entail permanent
secrecy of proceedings. An in camera hearing would be held pursuant to an
interlocutory order, which is capable of amendment by the court that granted it. They
provide a number of examples of courts that hear applications in camera and later make
the proceedings public, including in proceedings for Anton Piller orders and
preservation orders made under the Prevention of Organised Crime Act. 4 The
applicants submit that, because the request for an in camera hearing in this case is for
the purpose of determining a narrow procedural question, if it is subsequently found
that the contested documents are not privileged, a record of the proceedings can be made
public. Like the applicants, the respondents also submit that an in camera hearing does
not entail permanent secrecy of proceedings.
[13] The Nkosi AJ order interdicts the SAPS and NPA from viewing docume nts
seized from the applicants’ representatives, Mazars Forensic Services (Pty) L imited
(Mazars documents). The applicants submit that the Nkosi AJ order does not preclude
a court from fashioning a confidentiality regime by which the alleged privileged status
of the contested documents can be determined for purposes of the permanent stay
application. In any event, they submit that the Nkosi AJ order covers, at most, 36 of
the 69 contested documents.
[14] Further, they submit that Nkosi AJ’s order was made in a different context. The
parties had agreed that the Mazars documents would be kept in the custody of the
Registrar of the Pietermaritzburg High Court, pending a determination of their alleged
privileged status. However, the state viewed and copied the documents in violation of
that agreement. In response, the applicants brought an urgent application to prevent the
4 121 of 1998.
THERON J
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state from further viewing and copying the documents. After the state returned the
documents to the Registrar, which it had viewed and copied, the applicants and the state
entered into a second agreement in terms of which they agreed that certain of the Mazars
documents were privileged, that the non -privileged documents would be provided to
the state, and that the privileged documents would remain with the Registrar.
[15] The Nkosi AJ ord er prevents the state from accessing the documents in the
custody of the Registrar pursuant to the second agreement until a decision has been
made by the criminal court seized with the matter as to the documents’ privilege. The
applicants submit that the consideration of the privileged status of these documents for
purposes of a permanent stay application is distinct. In addition, the applicants submit
that the Nkosi AJ order binds the SAPS and NPA , but that the state’s legal
representatives in the permanent stay application do not consider themselves bound by
that order. This also means that any order made in relation to the documents for
purposes of the permanent stay application does not disturb the Nkosi AJ order.
[16] The respondents say that the privile ge question in the criminal proceedings and
the permanent stay proceedings are not distinct and that the applicants have other
remedies available to them because the criminal court can determine the privilege of the
documents.
[17] Finally, regarding the juris diction of the KwaZulu -Natal Division over the
Northern Cape prosecutions, the applicants submit that this issue did not arise in the
interlocutory proceedings and it ought not to have been decided by the Pietermaritzburg
High Court. Instead, they say it is relevant that, in 2015, the state and the applicants
entered into an agreement in terms of which the permanent stay application would be
determined before the criminal trials proceed and that the permanent stay application,
which would deal with the K waZulu-Natal and Northern Cape prosecutions, would be
brought in the KwaZulu-Natal Division.
THERON J
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In camera review of contested documents
[18] The basis of the permanent stay application is that the state breached the
applicants’ legal professional privilege to the extent that it would be unjust for the state,
having accessed those documents, to proceed with their prosecution. The narrow
question in this matter is the appropriate procedure for the court determining the
permanent stay application to consider the contested documents. This narrow question
does not require an assessment of whether the documents are in fact privileged or
whether a violation of legal professional privilege is sufficient to ground an application
for a permanent stay of prosecution – these are questions for the court that determines
the permanent stay application.
[19] Both the open justice principle and legal professional privilege are important
elements of the judicial system in an open and democratic society. In Thint,5 this Court
explained the purpose of legal professional privilege at paragraph 182 as follows:
“The right to legal professional privilege is a general rule of our common law which
states that communications between a legal advisor and his or her client are protected
from disclosure, provided that certain requirements are met. The rationale of this right
has changed over time. It is now generally accepted that these communications should
be protected in order to facilitate the proper functioning of an adversarial system of
justice, because it encourages full and frank disclosure between advisors and cl ients.
This, in turn, promotes fairness in litigation. In the context of criminal proceedings,
moreover, the right to have privileged communications with a lawyer protected is
necessary to uphold the right to a fair trial in terms of section 35 of the Co nstitution,
and for that reason it is to be taken very seriously indeed.”6
[20] An appropriate balance must be struck between privilege and open justice. In
my view, in camera consideration of the documents alleged to be privileged strikes that
balance.
5 Thint (Pty) Ltd v National Director of Public Prosecutions, Zuma v National Director of Public Prosecutions
[2008] ZACC 13; 2009 (1) SA 1 (CC); 2008 (12) BCLR 1197 (CC).
6 Id at para 150.
THERON J
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[21] The United States Supreme Court, in United States v Zolin ,7 considered the
process for determining whether attorney -client communications, which are generally
protected by privilege, should be disclosed on the basis that such communications are
alleged to be in furtherance of future illegal conduct (the crime -fraud exception). The
question was whether the applicability of the crime-fraud exception must be established
without reference to the contested communications by “independent evidence” , or
whether it could be established by an in camera inspection of the material. The
United States Supreme Court said that a party seeking to overcome privilege must put
up a factual basis to support a good faith belief by a reasonable person that in camera
review may reveal evidence to establish that the crime-fraud exception applies.
[22] South African courts engage in a similar process under the scheme of the
Promotion of Access to Information Act (PAIA).8 Section 80(3)(b) of PAIA empowers
courts considering applications brought under PAIA to conduct an in camera review of
the contested record. Section 80 also empowers a court to take a “judicial peek” which
is a practice occasionally used by our courts to privately inspect allegedly privileged
documents.
[23] In A Company v Commissioner, South African Revenue Service ,9 the following
was said about judicial peek:
“Historically, the need sometimes arose in the context of the determination of
interlocutory disputes about the right of one party to inspect discovered documents i n
respect of which the other party had claimed privilege. It entails the judge looking at
material that is not available to the party against whom the alleged right of
non-disclosure is asserted. That self-evidently puts the party that is kept in the dark, as
it were, at a disadvantage and it limits the assistance that a court is ordinarily able to
7 United States v. Zolin 491 US 554 (1989).
8 2 of 2002.
9 A Company v Commissioner, South African Revenue Service 2014 (4) SA 549 (WCC).
THERON J
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derive for the purposes of deciding contentious questions from argument addressed to
it by parties who are equally equipped.”10
[24] Where a court takes a judicial peek, the other side is not able to view the
contested documents. Conversely, in camera review proceedings allow representatives
of the respondents to view the contested documents under conditions of confidentiality,
which is arguably less drastic than a judicial peek. In camera review, however, is still
a deviation from general principles in the administration of justice ; it departs from the
adversarial nature of judicial proceedings and it cloaks the court’s proceedings in
secrecy. It is therefore a di scretion that must be exercised judiciously – the power
should only be invoked by a court when it is in the interests of justice to do so.11
[25] The factors to be considered in determining the interests of justice will vary from
case to case but may include th e purpose for which the court must consider the
documents in camera and the consequences for the parties if the documents are made
public. In this matter, the applicants require the documents to be considered by a court
because the alleged privileged nature of the documents grounds their application for a
permanent stay of prosecution. Without recourse to an in camera review mechanism,
they are placed in an “invidious position” , to use the words of Henriques J in the
Pietermaritzburg High Court. But for an in camera review, they are forced to choose
between dealing with the allegedly privileged documents in open court, where the
contents will be disclosed to the respondents and the public, or drastically weakening
their case for a permanen t stay by arguing that legal professional privilege has been
breached without giving the court sight of any of the privileged documents.
10 Id at para 37.
11 President of the Republic of South Africa v M&G Media Ltd [2011] ZACC 32; 2012 (2) SA 50 (CC); 2012 (2)
BCLR 181 (CC) at paras 42 and 45.
THERON J
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[26] In Shinga,12 part of this Court’s disquiet with a provision of the
Criminal Procedure Act13 that allowed criminal appeals to be held in chambers was that
“no member of the public will know what transpired”. 14 In an in camera review of
allegedly privileged documents, secrecy is not absolute and irreversible. If the
documents are indeed protected by privilege, our law allows for a deviation from the
open justice principle. If a court determines that the documents are not protected by
privilege, they should be disclosed in the main permanent stay proceedings and, thus,
will enter the public sphere. In the case of an in camera hearing, the court should ensure
that a record of the proceedings is kept , and if it is subsequently determined that the
documents are not protected, that record should be made available to the parties and the
public.
The state’s in limine complaints
[27] In dismissing the interlocutory application, the Pietermaritzburg High Court also
reasoned that the Nkosi AJ order, which pertains to certain of the contested documents’
status in criminal proceedings , prevented a further determination on the documents
listed in that order. It also held that the Northern Cape prosecutions fell outside of the
jurisdiction of the Pietermaritzburg High Court . These are matters for the court
determining the permanent stay application to consider in due course , and it was not
necessary for the Pietermaritzburg High Court to determine them. In the interlocutory
proceedings, the Pietermaritzburg High Court should have concerned itself only with
the procedure for considering the allegedly privileged documents in the permanent stay
application.
Order
[28] The following order is made:
12 Shinga v The State (Society of Advocates, Pietermaritzburg Bar, as Amicus Curiae); O ’Connell v The State
[2007] ZACC 3; 2007 (4) SA 611 (CC); 2007 (5) BCLR 474 (CC).
13 51 of 1977.
14 Shinga above n 12 at para 25.
THERON J
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1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the High Court of South Africa, KwaZulu -Natal Division,
Pietermaritzburg is set aside and replaced with the following:
“(a) The applicants’ interlocutory application in terms of section 32 of
the Superior Courts Act 10 of 2013 is granted with costs, including
the costs of two counsel.
(b) The procedure for considering the contested documents will be as
follows:
(i) The portion of the proceedings that relate to determining the
status of the contested documents is to be held in camera.
(ii) The court determining the status of the contested documents
must keep a record of the proceedings. If it is determined
that a particular contested document is not p rivileged, the
part of the record which pertains to that document shall
become public.
(iii) Only the representatives of the respondents who sign the
confidentiality agreement attached to this order are
permitted to appear in court during those proceedings.
(iv) Any person present in court during the in camera
proceedings is not permitted to be involved in the
subsequent investigation or prosecution of the applicants.
However, if all the contested documents are not privileged,
this prohibition will fall away.”
4. The respondents are to pay the costs of the applicants in this Court,
including the costs of two counsel.
PRIVILEGE AND CONFIDENTIALITY UNDERTAKING
I,
do hereby state that:
1. I am an advocate / attorney practising at:______________________.
2. I represent the [FIRST / SECOND RESPONDENT] in the application for
the permanent stay of prosecution that is currently pending before the
High Court of South Africa , KwaZulu-Natal Division, Pietermaritzburg,
under case number 5867/2013 (and any appeal which may be brought in
relation to this application) (permanent stay application).
3. After signature of this undertaking, I will be provided with access to
certain information and documents, in respect of which the applicants in
the permanent stay application claim legal privilege.
4. The contested documents comprise information which is claimed by the
applicants to be privileged but which will be released on a restricted basis
to me for the purpose of conducting the permanent stay application
(including any appeals which may be brought in relation to the permanent
stay application).
5. Having regard to the fact that the contested documents are claimed as
privileged by one or more of the applicants, I understand the necessity of
protecting them in the manner contemplated in this undertaking.
6. In the circumstances contemplated above and in recognition of the
sensitivity of the contested documents, I hereby unconditionally and
irrevocably undertake as follows:
THERON J
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6.1 Subject to the provisions of clause 6.2 below, I will treat the
contested documents as strictly privileged and confidential.
6.2 I will not (in any manner or form, or to any extent whatsoever)
divulge the contents of the contested documents or permit it to be
divulged to any person except:
6.2.1 counsel and/or the instructing attorney of the
respondents (together “the affected parties”), but only
upon each of the affected parties entering into and
agreeing to be bound by an undertaking which, mutatis
mutandis, is identical to this one;
6.2.2 the Registrar of the High Court of South Africa
(Durban or Pietermaritzburg Divisions of the
KwaZulu-Natal High Court and his or her staff);
6.2.3 the Judge(s) presiding over the permanent stay
application and his or her staff;
6.2.4 the Judge(s) presiding over any appeal that may be
brought in relation to the permanent stay application,
the Registrar and staff of the court hearing such appeal;
and
6.2.5 owners of the contested documents and their experts,
consultants and/or legal representatives.
6.3 Save for the purpose of use in the course of the permanent stay
application (including any appeals), I shall not copy the contested
documents or any portion thereof or permit it to be copied (in any
manner or to any extent), nor shall I make any notes, summaries or
annotations of the contested documents or permit such notes,
annotations or summaries to be made.
THERON J
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6.4 Upon completion of the review application (including any appeal),
I shall continue to keep confidential all contested documents in my
possession, including without limitation:
6.4.1 all notes, summaries and annotations made by me in
terms of paragraph 6.3 (including notes made in
electronic form); and
6.4.2 contested documents which were made available to me
in electronic form.
7. In the event that a court determines that a particular document is not
privileged, the confidentiality undertaking above in relation to that
particular document will fall away.
8. I confirm that, having signed this undertaking and had sight of the
contested documents, I will not act as a legal representative of the state in
any criminal or civil proceedings against the applicants, prosecute any
criminal proceedings against the applicants, advise the state in respect of
its proceedings against the applicants, or testify against the applicants in
any future proceedings. However, in the event that all the contested
documents are determined to not be privileged, I can be involved in the
subsequent investigation or prosecution of the applicants despite being
present in court during the in camera session.
9. These undertakings are given by me,_________________, to each of the
applicants.
10. This undertaking constitutes my entire undertaking in relation to the
subject matter hereof and I shall accordingly not be bound by any
undertaking or representation not recorded herein.
THERON J
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Signed at ______________________________ on _______________________.
______________________
Signature
As witnesses:
1. ____________________
2. ____________________
For the Applicants:
For the Respondents:
G Marcus SC, M Du Plessis SC, S
Pudifin-Jones and G Gumede instructed
by Edward Nathan Sonnenbergs
Incorporated.
R Choudree SC and R Mansingh
instructed by the State Attorney,
KwaZulu-Natal and State Attorney,
Pietermaritzburg.