Brief Summary

Constitutional Law — National Prosecuting Authority Act — Constitutionality of examination provisions — Application for leave to appeal against High Court judgment regarding section 28 of the National Prosecuting Authority Act — Applicant, Schabir Shaik, challenged the constitutionality of provisions allowing for examination under oath by the Investigating Director — Legal issue centered on the compliance of these provisions with constitutional rights — Court held that the provisions were constitutional and did not infringe upon the applicant's rights, thus dismissing the application for leave to appeal.

Comprehensive Summary

Summary of Judgment

1. Introduction

This matter concerned an application for leave to appeal to the Constitutional Court against a judgment and order of the High Court in Durban. The application arose from a constitutional challenge to aspects of section 28 of the National Prosecuting Authority Act 32 of 1998, which regulates investigations by an Investigating Director (within the Directorate of Special Operations) and, in particular, empowers the summoning and examination under oath of persons believed to have relevant information or documents.

The applicant was Mr Schabir Shaik, a businessman and director of companies. The respondents were the Minister of Justice and Constitutional Development (first respondent), the National Director of Public Prosecutions (second respondent), the Investigating Director: Director of Special Operations (third respondent), a Deputy Director of Public Prosecutions (fourth respondent), and Ms Gerda Ferreira, an advocate employed by the Directorate of Special Operations (fifth respondent).

Procedurally, the applicant challenged (in the High Court) the lawfulness of a summons issued under section 28(6), the constitutionality of section 28(6), and alternatively the proposed procedure for questioning him. The High Court dismissed the application, interpreted section 28(6) narrowly (excluding an accused person from “any person”), and nevertheless addressed justification under section 36 by reliance on Ferreira v Levin. The High Court ordered the applicant to pay costs (including costs of two counsel). The applicant then sought leave to appeal to the Constitutional Court. Although the High Court granted a positive certificate under Constitutional Court Rule 18, the issues were complicated by subsequent events, including the applicant’s later formal charging on the offences that had been the subject of the section 28 summons.

The broad subject matter of the dispute was the interaction between compulsory investigatory questioning under section 28 and the constitutional protections associated with fair trial rights, in particular the protection against being compelled to provide self-incriminating material, as framed under section 35 of the Constitution.

2. Material Facts

The court treated the following facts as material to the determination of leave to appeal and the interests-of-justice enquiry, and to the extent necessary, the construction and constitutional context of section 28.

After a preparatory investigation conducted under section 28(13), the Investigating Director decided on 24 August 2001 to institute an investigation under section 28(1) into suspected offences of fraud and corruption (in contravention of the Corruption Act 94 of 1992) connected to the acquisition of armaments by the Department of Defence. A search warrant was issued on 30 August 2001, including premises associated with the applicant and his companies, and was executed on 9 October 2001.

The applicant was arrested on 16 November 2001 and charged with theft, alternatively various statutory offences. The criminal trial was set down for 27 May 2002 in the Regional Court. The prosecuting authority indicated that further charges might be added. The applicant’s attorneys indicated an intention to challenge the search and seizure on constitutional grounds, raising doubts about the Regional Court’s jurisdiction to decide that challenge; argument occurred on 27 May 2002, judgment was reserved, and the matter was adjourned.

A summons was issued (the judgment describes it as issued on 12 July 2002) under section 28(6) read with section 28(7), calling on the applicant to appear at the DSO’s offices in Durban on a specified date to be questioned and to produce documents. The applicant attended as required. The proposed arrangement was that Ms Ferreira would act as chairperson and the DDPP would conduct questioning. The applicant’s representatives were informed that questioning would not be directed at the charges already pending in the Regional Court, but would instead relate to the anticipated fraud and corruption charges connected to the arms acquisition.

The applicant objected to the enquiry, and the parties agreed that questioning would be adjourned on condition that the applicant institute legal proceedings to set aside the enquiry. The applicant ultimately brought an application in the High Court (by agreement with the DDPP) on 15 September 2003 seeking to set aside the summons and/or to have section 28(6) declared unconstitutional, or alternatively to challenge the intended questioning procedure.

After the Constitutional Court application was served and filed in August 2003, a supervening event occurred: on 25 August 2003 the applicant was formally charged with the fraud and corruption offences that had been the very subject of the section 28 summons and intended questioning. This development featured centrally in the Constitutional Court’s assessment of whether there remained a live dispute and whether it was in the interests of justice to grant leave to appeal.

3. Legal Issues

The central questions the court was required to determine were framed at the level of leave to appeal and the interests of justice, rather than a final determination of constitutional validity on the merits.

A first legal issue was whether it was in the interests of justice to grant leave to appeal in circumstances where (i) the applicant had been charged with the offences forming the subject matter of the summons, (ii) the respondents had at one stage contended that the dispute was moot, and (iii) the High Court had interpreted section 28(6) as not applying to an accused person in respect of the offence that is the subject of the summons.

A second issue, which shaped prospects of success and the interests-of-justice enquiry, was whether the applicant’s constitutional attack was properly directed at section 28(6) at all. The Constitutional Court analysed whether the constitutional “sting” alleged by the applicant (compelled answers and limited immunity) actually lay in sections 28(8) and 28(10) rather than section 28(6), and what consequences followed for the propriety of adjudicating the challenge as pleaded and noticed under Uniform Rule 16A.

A third, related issue was whether the litigation—both in the High Court and in the Constitutional Court—had incorrectly approached constitutional justification by considering only the seriousness of the particular offences under investigation, rather than acknowledging the full potential sweep of “specified offences” under the Act, consistent with the principle of objective constitutional invalidity.

These issues primarily concerned questions of law (statutory interpretation, justiciability/mootness discretion, and constitutional litigation discipline) and the application of legal standards (interests of justice; objective invalidity) to the procedural and contextual facts.

4. Court’s Reasoning

The court began by emphasising that leave to appeal is granted only if it is in the interests of justice, and that while prospects of success are important, they are not the sole consideration. It then considered whether the dispute remained live, and what practical effect a decision might have.

On the construction of section 28(6), the court endorsed the High Court’s interpretation that the phrase “any person” in section 28(6)(a) does not include an accused person charged with an offence that is the subject of the section 28 summons and investigation. Although “any” is textually wide, the court held that its reach may be restricted by context. The court treated the context as decisive: an unlimited reading would enable the summonsing and compelled questioning of an accused about his participation in the charged offences, which the court considered inconsistent with established principles of criminal procedure and evidence.

In applying contextual interpretation, the court relied in particular on section 196(1)(a) of the Criminal Procedure Act 51 of 1977, which provides that an accused is a competent witness but may not be called except on his own application. Even if that provision applies directly to trial proceedings, the court considered that reading section 28(6)(a) to include an accused in relation to charged offences would amount to a flagrant circumvention of section 196(1)(a). The court therefore preferred a construction that avoided such a clash, and stated that “any person” should be construed in a manner most favourable to the accused and consistent with the purpose of section 196(1)(a).

The court then considered the consequences of supervening developments. Since the applicant had been charged with the offences that were the subject of the summons, the court accepted that he could not be questioned under section 28 while he was being tried on charges covered by the summons. However, the summons had not been withdrawn, and the respondents’ statement of intention not to question did not amount to a formal undertaking to the court. The court therefore did not treat the issue as necessarily extinguished, though it also stated it was not essential to reach a firm conclusion on mootness because, even if moot, the court retained a discretion to hear the matter if an order would have practical effect on the parties or others. It acknowledged that similar situations could arise for other persons prior to being charged, which could weigh in favour of granting leave.

Despite that, the court identified countervailing considerations that it regarded as decisive against granting leave. It held that the applicant’s challenge, as pleaded and argued, targeted the wrong provision. Section 28(6) was characterised as describing the Investigating Director’s powers and not specifying the examinee’s obligations, nor the extent of permissible questioning, nor the legal consequences of refusal, nor the subsequent use of answers. The court located the compulsion and criminal sanction for non-compliance in section 28(10), and the relevant privilege rules and the direct use immunity regime in section 28(8). The constitutional complaint (compelled self-incrimination without adequate immunity) therefore concerned provisions that were not attacked in the notice under Uniform Rule 16A(1) and were not formally placed in issue as provisions sought to be declared invalid.

The court treated this mis-targeting as more than a technicality. It linked the point to the constitutional seriousness of invalidating legislation, noting that such an order is generally binding and involves one arm of state invalidating the product of another. It further stressed the purpose of Uniform Rule 16A(1): to ensure clear identification of the constitutional issue so that interested parties can consider participation, and so that the state can properly address potential justification, including by evidence where relevant.

A further reason for refusing leave was that the High Court and the parties had approached the section 36 justification enquiry on the basis that the summons concerned very serious offences (fraud and corruption relating to the arms procurement). The Constitutional Court held that this approach was inconsistent with the principle of objective constitutional invalidity, as articulated in Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others: the validity of a statutory provision cannot be assessed subjectively with reference only to the litigant’s circumstances. Instead, the court held that one must evaluate the provision’s operation across the range of cases to which it applies.

Applying that principle, the court analysed the definition of “specified offence” and the reach of section 7(1)(a)(aa) and (bb), together with presidential proclamations, and concluded that the range of offences that could fall under section 28 investigations was broad and could extend to offences far less serious than those under consideration in the applicant’s matter. It considered that this wide sweep had not been appreciated by the litigants or brought to the High Court’s attention, and that the limitation analysis had therefore been conducted on an incorrect basis.

The court also addressed the applicant’s reliance on Canadian Supreme Court dicta to argue that direct use immunity was insufficient. It referred to its own prior decision in Ferreira v Levin, where the court had considered self-incrimination in the context of section 417 of the Companies Act 61 of 1973, and had held that direct use immunity, coupled with the trial court’s discretion to exclude derivative evidence where necessary for fairness, was sufficient in the South African context. The court stated that attempts to distinguish Ferreira v Levin were unconvincing, and that if the applicant sought to argue that the case had been wrongly decided, proper argument would have been required on the court’s power to depart from its own precedent and why it should do so; this was not done.

Although it refused to decide broader constitutional questions on the papers as presented, the court recorded a concern regarding the section 28 procedure: under section 28(6)(b) questioning may be conducted by the Investigating Director or a designated person without any requirement that an independent person be present; the proceedings must be in camera (section 28(3)), and recording is in a manner the Investigating Director deems fit (section 28(5)). The court described the potential for a procedure where interrogator and examinee are alone and the record is controlled by the interrogator. However, it expressly refrained from pronouncing on this concern, stating that such tensions between effective control of organised crime and fair trial protections required properly prepared papers and focused argument, and it would not be in the interests of justice to address them tangentially.

On costs, the court held that it was not in the interests of justice to grant leave solely to challenge the High Court costs order. In the Constitutional Court proceedings, it considered it equitable that each party bear its own costs.

5. Outcome and Relief

The Constitutional Court dismissed the application for leave to appeal.

It ordered that all parties pay their own costs in the Constitutional Court application. The High Court’s costs order against the applicant was not disturbed, as leave to appeal was refused and the court declined to entertain an appeal solely on the costs issue.

Cases Cited

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

National Coalition for Gay and Lesbian Equality and Others v Min of Home Affairs and Others [1999] ZACC 17; 2000 (1) BCLR 39 (CC); 2000 (2) SA 1 (CC).

JT Publishing (Pty) Ltd v Min of Safety & Security [1996] ZACC 23; 1996 (12) BCLR 1599 (CC); 1997 (3) SA 514 (CC).

Independent Electoral Commission v Langeberg Municipality [2001] ZACC 23; 2001 (9) BCLR 883 (CC); 2001 (3) SA 925 (CC).

Fraser v Naude and Others 1998 (11) BCLR 1357 (CC); 1999 (1) SA 1 (CC).

R v Hugo 1926 AD 268.

First National Bank of SA Limited t/a Wesbank v Commissioner for the South African Revenue Services and Another; First National Bank of SA Limited t/a Wesbank v Minister of Finance [2002] ZACC 5; 2002 (7) BCLR 702 (CC); 2002 (4) SA 768 (CC).

R v Sachs 1953 (1) SA 392 (A).

S v Baleka and Others 1986 (1) SA 361 (T).

Chotabhai v Union Government (Minister of Justice) and Registrar of Asiatics 1911 AD 13.

Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd 1948 (1) SA 839 (A).

De Vos v Cooper & Ferreira 1999 (4) SA 1290 (SCA).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (sections 14, 16, 33, 34, 35, 36; and reference to section 167(6)).

National Prosecuting Authority Act 32 of 1998 (section 28; section 7; section 1 definition of “specified offence”; section 29; section 27).

Corruption Act 94 of 1992.

Criminal Procedure Act 51 of 1977 (sections 196(1)(a), 276; reference to section 319(3); and comparison to Criminal Procedure Act 56 of 1955 as mentioned in section 28(8)(b) of the NPA Act text quoted).

Companies Act 61 of 1973 (section 417).

Exchequer Act 66 of 1975 (section 39).

Income Tax Act (referenced via proclamation context in the judgment).

Customs and Excise Act (referenced via proclamation context in the judgment).

Sea Fishery Act (referenced via proclamation context in the judgment).

Drugs and Drug Trafficking Act (referenced via proclamation context in the judgment).

Rules of Court Cited

Uniform Rule 16A(1).

Constitutional Court Rule 18.

Constitutional Court Rule 18(9)(a).

Held

The court held that, properly construed in context, the words “any person” in section 28(6)(a) of the National Prosecuting Authority Act 32 of 1998 do not include an accused person charged with an offence that is the subject of the section 28 summons and investigation, and that this construction avoids circumvention of section 196(1)(a) of the Criminal Procedure Act 51 of 1977.

The court further held that it was not in the interests of justice to grant leave to appeal, principally because the constitutional attack was directed at the wrong statutory provision (the relevant compulsion and immunity features lying in sections 28(8) and 28(10)), because the potential breadth of the provision’s operation had been misunderstood (contrary to the requirement of objective constitutional invalidity), and because the dispute was not clearly a live controversy between the parties at the time of hearing.

Leave to appeal was dismissed and each party was ordered to pay its own costs in the Constitutional Court.

LEGAL PRINCIPLES

The interests of justice standard governs the grant of leave to appeal in the Constitutional Court. Prospects of success are important but not decisive; other factors, including mootness and the likely practical effect of any order, must be weighed cumulatively.

A statutory phrase of general import such as “any person” may be contextually restricted. In interpreting statutes that may affect accused persons, courts may prefer a construction most favourable to the accused and that avoids a clash with established criminal procedure protections, including the principle embodied in section 196(1)(a) of the Criminal Procedure Act 51 of 1977 that an accused is not to be compelled to testify.

Constitutional invalidity is assessed on an objective basis. The validity of a statute cannot be determined by reference only to the particular litigant’s circumstances; the enquiry must consider the statute’s operation across the range of cases it covers, consistent with the principle articulated in Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) BCLR 1 (CC); 1996 (1) SA 984 (CC).

Sound constitutional litigation practice requires accurate identification of the provisions attacked as unconstitutional, aligned with the notice function of Uniform Rule 16A(1). Misidentification is material because declarations of invalidity have general effect and may implicate participation and justification issues beyond the immediate parties.

Where the constitutional complaint relates to the adequacy of immunity against self-incrimination in compelled examinations, prior Constitutional Court authority (notably Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) BCLR 1 (CC); 1996 (1) SA 984 (CC)) recognises direct use immunity as constitutionally sufficient in the South African context, with trial courts retaining a discretion to exclude derivative evidence when required to secure a fair trial; challenges seeking departure from that position require properly framed argument on overruling precedent.

Shaik v Minister of Justice and Constitutional Development and Others (CCT34/03) [2003] ZACC 24; 2004 (3) SA 599 (CC); 2004 (4) BCLR 333 (CC) (2 December 2003)