Thint (Pty) Ltd v National Director of Public Prosecutions and Others, Zuma and Another v National Director of Public Prosecutions and Others (CCT 89/07, CCT 91/07) [2008] ZACC 13; 2008 (2) SACR 421 (CC); 2009 (1) SA 1 (CC); 2008 (12) BCLR 1197 (CC) (31 July 2008)

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[2008] ZACC 13
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Thint (Pty) Ltd v National Director of Public Prosecutions and Others, Zuma and Another v National Director of Public Prosecutions and Others (CCT 89/07, CCT 91/07) [2008] ZACC 13; 2008 (2) SACR 421 (CC); 2009 (1) SA 1 (CC); 2008 (12) BCLR 1197 (CC) (31 July 2008)

Links to summary

CONSTITUTIONAL COURT OF SOUTH AFRICA
[2008] ZACC 13
Case CCT 89/07
THINT
(PTY) LTD Applicant
versus
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS First Respondent
INVESTIGATING
DIRECTOR: DIRECTORATE OF
SPECIAL
OPERATIONS
Second Respondent
JOHAN DU
PLOOY Third Respondent
Case CCT 91/07
JACOB
GEDLEYIHLEKISA ZUMA First Applicant
MICHAEL
HULLEY Second Applicant
versus
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS First Respondent
INVESTIGATING
DIRECTOR: DIRECTORATE OF
SPECIAL
OPERATIONS Second Respondent
DIRECTOR
OF PUBLIC PROSECUTIONS
(DURBAN
AND COAST LOCAL DIVISION) Third Respondent
Heard
on : 11-13 March 2008
Decided
on : 31 July 2008
JUDGMENT
LANGA CJ:
Introduction
This case concerns various search and seizure warrants issued
purportedly in terms of section 29 of the National Prosecuting

Authority Act
1
(the Act) by a judge. It concerns the validity of the terms of
those warrants and the lawfulness of the manner of their execution.

Finally, it raises a question about the appropriate relief for an
unlawful search and seizure operation in the context of
the fight
against serious, complex and organised crime.
The two applications before this Court were heard together by
direction of the Chief Justice. They are applications for leave
to
appeal against two judgments handed down by the Supreme Court of
Appeal on 8 November 2007.
2
In both judgments, that Court held by a majority that the
application for, issue, and execution of, the respective warrants

were lawful. The orders respectively overturned the judgment of
Hurt J in the Durban High Court
3
and confirmed the judgment of Du Plessis J in the Pretoria High
Court.
4
The applicants now apply to this Court to have the two orders of
the Supreme Court of Appeal set aside.
In
the first application, the applicant is Thint (Pty) Ltd (Thint), a
company incorporated in South Africa and carrying on business
in
Pretoria. In the second application, the applicants are Mr Jacob
Zuma
5
(Mr Zuma) and Mr Michael Hulley (Mr Hulley), the current attorney
of Mr Zuma. The first and second respondents in both applications

are the National Director of Public Prosecutions (NDPP) and the
Investigating Director of the Directorate of Special Operations

(Investigating Director). The third respondent in the first
application is Mr Johan Du Plooy (Mr Du Plooy), a Senior Special

Investigator in the employ of the Investigating Director. The
third respondent in the second application is the Director of

Public Prosecutions in Durban. The respondents are referred to
interchangeably as the state or the prosecution.
Complaints
to the Judicial Service Commission
After judgment
was reserved in these cases on 13 March 2008, certain events
occurred that resulted in a complaint being lodged
with the
Judicial Service Commission (JSC) by Judges of this Court. The
complaint was against the alleged conduct of a Judge
from one of
the High Courts, the basis of which was that he had allegedly tried
improperly to influence two Judges of this
Court to decide these
cases in favour of one of the parties in these cases. It is now
common cause that the High Court Judge
did visit the Judges of this
Court. There is a dispute about the content of the discussions
that took place during the visits.
The High Court Judge has in
turn lodged a counter-complaint against the Judges of the
Constitutional Court alleging improper
conduct on their part which
amounted to a violation of his constitutional rights. The basis of
his complaint is the issuing
by the Judges of this Court to the
media of a statement about their complaint to the JSC, which is
also common cause. The
two complaints are the subject of an
inquiry by the JSC and it is not necessary or desirable to go into
detail for present
purposes.
After the
complaints had been lodged, Mr Zuma’s attorney, Mr Hulley,
wrote to the Chief Justice expressing concern about
the possibility
of this judgment being delayed consequent upon the complaints
before the JSC as well as possible negative implications
for Mr
Zuma. Responding to this, directions were issued by the Chief
Justice inviting the parties, if they so wished, to make

submissions arising out of Mr Hulley’s letter. The parties
have made their submissions, with none of them expressing
a direct
concern that the cases would not be decided fairly consequent upon
the events leading up to the complaint to the JSC.
Indeed the
state indicated expressly that it had no concerns in relation to
the fairness of the proceedings. The response
of the applicant
Thint, however, contains a criticism of the procedure followed by
the Court in laying the complaint against
the High Court Judge.
It is
necessary therefore to address the question whether the alleged
improper approaches have had any effect on the content
of the
judgments being delivered in these cases or on the way in which
they have been decided. All the members of the Court
who sat in
the two applications now before us (as well as in two applications
heard simultaneously, which concerned a letter
of request to
Mauritian authorities for documents relating to Thint and Mr Zuma),
have considered their position in the light
of the events mentioned
above and their responsibilities as Judges of this Court. We are
satisfied that the alleged acts that
form the basis of the
complaint to the JSC by Judges of this Court have had no effect or
influence on the consideration by
the Court of the issues in these
cases and in the judgments given. It is recorded in the statement
of complaint that there
is no suggestion that any of the parties in
these cases have had anything to do with the alleged conduct that
forms the basis
of the complaint by the Judges of the Court. The
issues relating to the complaint have accordingly been kept
strictly separate
from the adjudication process in these cases. It
is however important to emphasise that the cases have been
considered and
decided in the normal way, in accordance with the
dictates of our Oath of Office and in terms of the Constitution and
the law,
without any fear, favour or prejudice.
Application
for condonation
The
state filed its opposing affidavits to both applications for leave
to appeal two days late. It has applied for condonation,
stating
that it had proved impossible to answer the applications within the
ten day period permitted by the Rules of this Court.
This was
because of the sheer volume of the work involved and the limited
availability of counsel over the summer holiday
period. The
applicants do not oppose this application. It is my view that it
would be in the interests of justice to grant
condonation given the
overwhelming public importance of the case, the lack of prejudice
to the applicants, and the relatively
short delay.
Disputes
of fact
Before
traversing the factual background, it is necessary to resolve a
preliminary issue. Various disputes of fact appear in
the record.
It is trite that factual disagreements in motion proceedings are to
be dealt with in accordance with the rule
in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
,
6
which stipulates that, subject to certain exceptions, a court
should rely only on evidence given by the deponents for the
respondents. In deciding which parties count as the respondents in
the two applications now before this Court, it is necessary
to draw
a distinction between disputes of fact relating to the
authorisation of search warrants in terms of section 29 of the
Act
and disputes of fact relating to the subsequent execution of those
warrants.
7
The former disagreements relate to the facts placed before a judge
in chambers as part of an application for the issue of a
warrant in
terms of section 29. There is persuasive authority for the
proposition that, where such an application is brought
ex parte, it
is by its nature provisional and subject to subsequent
reconsideration after all the parties who have an interest
have
been heard.
8
Therefore, where a party subsequently challenges the ex parte
issue of a warrant, it may be correct for the purposes of the
rule in
Plascon-Evans
to treat that party as the respondent,
even where the challenge takes the form of a fresh application on
notice of motion.
As will become apparent, however, it is
unnecessary for the purposes of the applications before this Court
to decide this
question finally, because none of the material
factual disputes falls into this category.
The
latter disagreements are different because they are factual
disputes concerning what happens during the execution of a warrant.

Where a party challenges the lawfulness of a warrant’s
execution on notice of motion and disputes of fact arise, that

party remains the applicant, and the prosecution must accordingly
be treated as the respondent under the
Plascon-Evans
rule.
As far as this category of factual disputes is concerned, it is the
state’s version that must be accepted. That
is the approach
I take to the various factual disagreements arising in these two
applications which relate to the execution
of the warrants.
Factual
background
On
6 November 2000 the Investigating Director instituted a
“preparatory investigation” in terms of section 28(13)

of the Act,
9
which was aimed at determining whether there were reasonable
grounds to conduct an investigation, in terms of section 28(1)(a),

into allegations of corruption and fraud in connection with
government contracts for the supply of armaments. By 24 August

2001 the Investigating Director had decided to launch an
investigation contemplated by section 28(1), and Mr Du Plooy was
designated to conduct it in terms of section 28(2)(a). In terms of
section 28(2)(b), a person thus designated exercises all
the powers
of the Investigating Director under sections 28 and 29. In October
2002 the investigation was extended to include
inquiries into
suspected offences of fraud, corruption, theft and tax evasion by
Mr Schabir Shaik (Mr Shaik) and various companies
controlled by
him. On 2 June 2005 the Durban High Court convicted Mr Shaik and
his companies of corruption and fraud, and
sentences of
imprisonment and the payment of fines were imposed.
10
Originally, Thint had been indicted together with Mr Shaik and his
companies, but the charges against it were withdrawn on
11 October
2004, before the trial commenced, for reasons that are not germane
to the present matter. The convictions and sentences
of Mr Shaik
and his companies were largely upheld by the Supreme Court of
Appeal
11
and by this Court.
12
On
20 June 2005 the NDPP decided to prosecute Mr Zuma for corruption
related to the offences committed by Mr Shaik and his companies.

Mr Zuma appeared in the Durban Magistrates’ Court on 29 June
2005, but the matter was postponed for further investigation.
On 8
August 2005 Mr Du Plooy extended the scope of the section 28
investigation to include fraud and tax offences allegedly
committed
by Mr Zuma.
13
On
11 August 2005 Mr Du Plooy prepared an affidavit in support of an
application for 21 search and seizure warrants to be issued
in
terms of subsections 29(5) and (6) of the Act.
14
The purpose of the proposed search and seizure operations was to
obtain evidence in relation to the investigation of the crimes
of
which Mr Zuma, Thint, and another company, Thint Holding (Southern
Africa) (Pty) Ltd, were suspected. In his affidavit,
Mr Du Plooy
emphasised the need for surprise in order to reduce the risk of the
removal or destruction of any evidence on the
relevant premises.
On 12 August an application was made in chambers to Ngoepe JP of
the Pretoria High Court in terms of section
29(4). On the same day
the Judge President issued the majority of the warrants sought in
Mr Du Plooy’s affidavit, but
only after their wording had
been modified in order to specify the offences which were the
subject of the investigation. The
remaining warrants were issued
on 15, 18 and 26 August 2005 respectively.
On
16 August 2005 the Acting Investigating Director, Mr Mngwengwe,
executed a written authorisation naming the various officials
who
were to conduct the search and seizure operations. On the morning
of 18 August, most of the warrants were executed simultaneously
at
various premises throughout the country. Approximately 250 members
of the Directorate of Special Operations participated
in the
operation. They seized approximately 93 000 documents as well as
computer equipment. Soon thereafter, during November
2005, Mr Zuma
and the Thint companies were indicted to stand trial on 31 July
2006 in the Pietermaritzburg High Court.
The
warrants
The
two applications now before this Court concern only six of the
warrants. These were executed at:
(a) Thint’s
office in Pretoria;
(b) Mr
Zuma’s flat in Killarney, Johannesburg, which was occupied by
two of his sons, his daughter and the wife of one
of his sons when
the warrant was executed;
(c) Mr
Zuma’s residence at the Nkandla Traditional Village in
Nkandla, KwaZulu-Natal;
(d) Mr
Zuma’s former offices at the Union Buildings, Pretoria;
(e) Mr
Zuma’s former offices at the Department of Economic
Development and Tourism, Durban;
15
and
(f) Mr
Hulley’s offices in Durban.
These
six warrants were in identical terms, except for the particulars
relating to the premises to be searched. They read as
follows:
“
SEARCH WARRANT
(Section 29(5)
of the
National
Prosecuting Authority Act, No. 32 of 1998
)
TO
:
The Investigating Director: Directorate of Special Operations or
any person authorised by him/her in writing
WHEREAS it appears to me from
information on oath setting out the nature of the investigation,
that there exists a reasonable
suspicion that an offence/offences
has/have been or is/are being committed, to wit, Corruption in
contravention of Act 94 of
1992, Fraud, Money Laundering in
contravention of Act 121 of 1998 and/or the commission of tax
offences in contravention of Act
58 of 1962, or that an attempt was
or had been made to commit such an offence/offences, and the need,
in regard to the investigation,
being an investigation into
allegations of corruption, fraud, money laundering and/or the
commission of tax offences for a search
and seizure in terms of the
above-mentioned section, of any object as per Annexure A, which has
a bearing, or might have a bearing,
on the investigation in
question.
AND WHEREAS it appears to me
from the said information on oath that there are reasonable grounds
for believing that an object(s)
having a bearing or which might have
a bearing on, or is/are connected with the investigation, is (are)
on or in the premises
or suspected to be on or in the premises of
. . . .
YOU ARE HEREBY AUTHORISED to
enter the said premises during the daytime and there to inspect and
search and make such enquiries
that you may deem necessary, examine
any object found on or in the premises which has a bearing or might
have a bearing on the
investigation in question and, against the
issue of a receipt, to seize anything on or in the premises which
has a bearing or
might have a bearing on the investigation, or if
you wish, to retain it for further investigation or for safe
custody, (including
inspecting, searching and seizing
computer-related objects in the manner authorized in Annexure B) and
to remain on the said
premises and to complete the abovementioned
inspection, search, enquiries, examination and seizure during the
nighttime if necessary.”
Annexure
A, which was referred to in the first paragraph of the preamble,
was also phrased in identical terms in all four warrants
executed
at premises connected to Mr Zuma,
16
and consisted of 23 numbered paragraphs as follows:
“
1. Any notes, minutes of
meetings, diary entries, records of telephone conversations and any
other correspondence, e mails, faxes,
computer entries or
documentation which have or might have a bearing on or are connected
with any gift, payment, loan, or other
benefit, direct or indirect,
monetary or otherwise, which Schabir Shaik or any of the Nkobi
entities, or Thétard, or any
other person or entity within
the Thomson-CSF/Thales/THINT group, directly or indirectly gave,
intended to give or agreed to
give to Zuma or his family, and any
receipt of, or agreement to receive such by Zuma.
2. Any notes, minutes of
meetings, diary entries, records of telephone conversations and any
other correspondence, e mails, faxes,
computer entries or
documentation which have or might have a bearing on or are connected
with any assistance of whatever nature
that Zuma directly or
indirectly gave, intended to give or agreed to give to Schabir Shaik
or any of the Nkobi entities, or Thétard,
or any other person
or entity within the Thomson-CSF/Thales/THINT group, including any
references to the following:
•
The Renong group of
Malaysia, including Tan Sri Halim Saad and David Wilson
• The Point Development
•
The Eco-Tourism School,
including Deva Ponnoosami and Prof John Lennon
•
Minister Steve Tshwete
and Grant Scriven of the Venson group
• Ronald Coopersmith
• Fouad Alghanim
•
The Kosi Bay Development
and Jeffrey Crane of Crane Africa
• United Bank PLC and
Belo Osagie
3. Any notes, minutes of
meetings, diary entries, records of telephone conversations and any
other correspondence, e mails, faxes,
computer entries or
documentation which have or might have a bearing on or are connected
with Shaik's appointment as Zuma's financial
adviser, economic
adviser or special economic adviser.
4. Notes, minutes of meetings,
diary entries, records of telephone conversations and any other
correspondence, e mails, faxes,
computer entries or documentation
which Zuma and his secretaries, assistants or colleagues would have
compiled, which have a
bearing or might have a bearing on Shaik's
role with Zuma regarding visits to Malaysia and the Malaysian
government, including
any business generated in favour of Shaik and
the Nkobi group as a result of such visits.
5. Zuma's diaries for the
period 1995 to date, and any electronic diaries, notes, or other
correspondence, e mails, faxes, computer
entries or documentation
which Zuma and his secretaries, assistants or colleagues would have
compiled and which indicate his
movements, meetings and engagements,
including travel plans, flight records and credit card records.
6. Notes, minutes of meetings,
diary entries, records of telephone conversations and any other
correspondence, e mails, faxes,
computer entries or documentation
which Zuma and his secretaries, assistants or colleagues would have
compiled, which have a
bearing or might have a bearing on meetings,
correspondence or other contacts with Shaik, Thétard,
Perrier, de Jomaron
or any other person connected with the Nkobi or
Thomson/Thales entities, including the entity African Defence
Systems (Pty) Ltd.
7. Notes, minutes of meetings,
diary entries, records of telephone conversations and any other
correspondence, e mails, faxes,
computer entries or documentation
which Zuma and his secretaries, assistants or colleagues would have
compiled, which have a
bearing or might have a bearing on the
partnership with or acquisition of, or intended partnership or
acquisition of the entity
African or Altech Defence Systems (Pty)
Ltd (ADS), including contacts, meetings or correspondence with or
regarding Peter Watt
of Altron or Craig or Bill Venter of Altech.
8. Notes, minutes of meetings,
diary entries, records of telephone conversations and any other
correspondence, e mails, faxes,
computer entries, financial records
or documentation which Zuma and his secretaries, assistants or
colleagues would have compiled,
which have a bearing or might have a
bearing on Zuma's financial position, including Zuma's financial
obligations to third parties,
including banks and other financial
institutions, arrangements concerning such obligations, payments
from third parties to Zuma,
and arrangements concerning such
payments, including payments from and arrangements concerning Jurgen
Kogl and his entity Cay
Nominees, Nora Fakude-Nkuna and her entity
Bohlabela Wheels and Vivian Reddy, Edison Health and/or Development
Africa Trust.
9. Notes, minutes of meetings,
diary entries, records of telephone conversations and any other
correspondence, e mails, faxes,
computer entries or documentation
relating to any allegations of corruption in respect of the arms
acquisition process and which
have a bearing or might have a bearing
on the investigation.
10. Notes, minutes of meetings,
diary entries, records of telephone conversations and any other
correspondence, e mails, faxes,
computer entries or documentation
which Zuma and his secretaries, assistants or colleagues would have
compiled in reaction to
reports regarding the contents of the
encrypted fax.
11. Notes, minutes of meetings,
diary entries, records of telephone conversations and any other
correspondence, e mails, faxes,
computer entries or documentation
which Zuma and his secretaries, assistants or colleagues would have
compiled in reaction to
the prosecution and trial of Shaik and his
related companies.
12. In general, any notes,
minutes of meetings, diary entries, records of telephone
conversations and any other correspondence,
e mails, faxes, computer
entries or documentation which Zuma and his secretaries, assistants
or colleagues would have compiled
in relation to the request to pay
the bribe of R500 000, any actual payment of the bribe, or the
objectives requested of Thomson-CSF
in return for the bribe, namely
•
Protection of
Thomson-CSF during the current investigations in respect of project
SITRON (the corvette programme), including
the letter signed by Zuma
as leader of government business dated 19 January 2001 and addressed
to Gavin Woods, and including
Zuma's reaction to the ongoing
investigation concerning the arms acquisition process, Shaik and the
Nkobi group and the Thomson/Thales
group.
• Continued support of
Zuma for future Thomson projects.
13. Any financial records of
whatever nature, including ledgers, cash books, company registers,
share registers, share certificates,
bank documents, notes, minutes
of meetings, diary entries, records of telephone conversations and
any other correspondence, e
mails, faxes, computer entries or
documentation in connection with arrangements relating to ADS
dividends.
14. Any notes, minutes of
meetings, diary entries, records of telephone conversations and any
other correspondence, e mails, faxes,
computer entries, financial
records/plans or documentation which Zuma and his secretaries,
assistants or colleagues would have
compiled in relation to the
Nkandla building project, including its planning and financing.
15. Any notes, minutes of
meetings, diary entries, records of telephone conversations and any
other correspondence, e mails, faxes,
computer entries, financial
records plans or documentation which Zuma and his secretaries,
assistants or colleagues would have
compiled in relation to the
Jacob Zuma Education Trust Fund, specifically regarding funding
sought from third parties.
16. Any notes, minutes of
meetings, diary entries, records of telephone conversations and any
other correspondence, e mails, faxes,
computer entries, financial
records/plans or documentation which Zuma and his secretaries,
assistants or colleagues would have
compiled in relation to the
Development Africa Trust, including any amounts that Zuma owed
Development Africa and payments to/from
Development Africa and/or
Vivian Reddy.
17. Any financial records of
whatever nature, including ledgers, cash books, company registers,
share registers, share certificates,
bank documents, notes, minutes
of meetings, diary entries, records of telephone conversations and
any other correspondence, e
mails, faxes, computer entries or
documentation in connection with arrangements relating to any Nkobi
or Thomson/Thales entity
and the arms acquisition process.
18. Any records of whatever
nature relating to any foreign bank accounts held by Zuma, Shaik or
any of the Nkobi or Thomson/Thales
entities which have a bearing or
might have a bearing on the investigation.
19. Any records of whatever
nature relating to any interests held by Zuma or Shaik in any entity
(company, close corporation or
trust) which has a bearing or might
have a bearing on the investigation.
20. Any financial records of
whatever nature, including ledgers, cash books, company registers,
share registers, share certificates,
bank documents, notes, minutes
of meetings, diary entries, records of telephone conversations and
any other correspondence, e
mails, faxes, computer entries or
documentation in connection with Zuma's association with Shaik or
any of the Nkobi or Thomson/Thales
entities.
21. Any financial records of
whatever nature, including ledgers, cash books, company registers,
share registers, share certificates,
bank documents, notes, minutes
of meetings, diary entries, records of telephone conversations and
any other correspondence, e
mails, faxes, computer entries or
documentation in connection with payments made on behalf of Zuma's
family members (children
and wives) by any of the abovementioned
Nkobi entities or Shaik.
22. Any records of whatever
nature relating to Zuma's tax returns to the South African Revenue
Service which have a bearing or
might have a bearing on the
investigation.
23. In general any records or
financial records of whatever nature, including ledgers, cash books,
company registers, share registers,
share certificates, bank
documents, notes, minutes of meetings, diary entries, records of
telephone conversations and any other
correspondence, e mails,
faxes, documentation, or electronic computer data which have a
bearing or might have a bearing on the
investigation. Electronic
computer data includes computers, laptops, stiffies, hard drives,
compact discs, data cartridges, backups,
electronic devices and any
other form in which electronic information can be stored or saved.
Records of telephone conversations
include cell phone data stored in
any cell phones.”
Annexure
A to the warrant executed at the offices of Thint consisted of 22
paragraphs that followed very closely, with the necessary
changes,
the wording of paragraphs 1 to 21 and 23 as set out above.
Annexure A to the warrant executed at Mr Hulley’s
offices
contained only two numbered paragraphs. The second was phrased
identically to paragraph 23 above, while the first
read:
“
1. Any records of
whatever nature that Hulley and Associates received from Schabir
Shaik and any of the Nkobi entities or any
other source in
approximately July 2005 concerning the affairs of Jacob Zuma, and
specifically records kept or compiled by Schabir
Shaik in his
capacity as financial advisor to Jacob Zuma.”
Annexure
B, which was referred to in the authorising paragraph, was also
phrased identically for all six warrants as follows:
“
1. Making two mirror
images (complete disc copies) of computers, laptops, notebooks or
hard drives, or any other electronic device
on which information can
be stored or saved, such as stiffies, compact discs and floppies.
2. Making digital images of any
of the above for identification purposes.
3. Seizing computer hardware
and software components and computer manuals necessary to facilitate
forensic analysis.
4. Thereafter, and at a
location removed from the premises, conducting searches by way of
forensic analysis to identify and retrieve
all information which has
a bearing, or might have a bearing, on the investigation in
question.”
The
search at the offices of Thint
Investigators
seized various items from Thint’s offices, including
documents and computers. Ms Govender, who had been
employed since
2003 as the personal assistant of Mr Moynot, a director of Thint,
was present during the search. She said in
her affidavit before
the High Court that she was aware that certain correspondence
between Thint and its lawyers was confidential
and privileged and
that she had been told by Mr Moynot which documents stored on her
computer were in this class. She claimed
privilege in respect of
certain documents in a filing room, calling in the assistance of
Thint’s attorney. After some
negotiations with the
investigators who executed the search, those documents were by
agreement dealt with in terms of section
29(11) of the Act.
17
There
was a dispute of fact about whether Ms Govender claimed privilege
in respect of information stored on her computer. The

investigators who were present deny that she did. As this dispute
concerns the execution of the search warrant, I shall accept
the
investigators’ version as correct, in accordance with the
approach to factual disagreements set out above.
18
On
the day after the search, Thint’s attorney wrote to the
Investigating Director, recording that Thint did not consent
to the
seizure of documents or information that “might be protected
by attorney/client privilege”. The letter
requested an
undertaking that copies of such information would not be made
“should they appear anywhere on the mirror
images [of the
seized computer hard drives] that might be made”. He also
requested the return of all copies that might
already have been
made.
It
is important to note that, since the execution of the search, Thint
has had ready access to everything on the hard drive
of Ms
Govender’s computer. That is because, first, the
investigators conducting the search made a mirror image of her

computer’s hard drive and left the original in Thint’s
offices. Secondly, on 7 March 2006, Advocate George Baloyi
(Mr
Baloyi), a Deputy Director of Public Prosecutions in Pretoria, made
available to Thint’s attorneys CDs and/or DVDs
containing
copies of all deleted items that were recovered from that mirror
image by forensic experts. Despite such access,
to date Thint has
not claimed privilege in respect of any particular document or item
that was seized.
The
search at Mr Hulley’s office
The
background to the formulation of the warrant executed at Mr
Hulley’s office is as follows.
19
On 19 July 2005, about six weeks after Mr Shaik’s conviction
of corruption and fraud in the Durban High Court, his attorney,
Mr
Reeves Parsee (Mr Parsee), sent a letter to the prosecutors
informing them that Mr Shaik had resigned as Mr Zuma’s

financial advisor and that he had accordingly forwarded all Mr
Zuma’s documentation to his new attorney, Mr Hulley.
The
letter did not say whether the documentation was in hard copy or in
electronic format or both and did not specify by what
means or when
it had been forwarded to Mr Hulley. The prosecutors therefore did
not know whether it still existed in a separate
parcel or whether
it had been integrated into other documents at Mr Hulley’s
office.
The
prosecution states that the purpose of the search was confined to
seizing these documents. Advocate Anton Steynberg (Mr
Steynberg),
a Deputy Director of Public Prosecutions at the KwaZulu-Natal
regional office of the Directorate of Special Operations,
stated on
oath that Mr Johannes van Loggerenberg (Mr Van Loggerenberg), the
leader of the team assigned to the search of Mr
Hulley’s
offices, was instructed that—
“
if the documentation
could be readily identified as being from Reeves Parsee, he should
seize only that documentation. He was
instructed not to search the
premises unless it was strictly necessary to locate this
documentation.”
I
now turn to record what happened when the warrant was executed at
Mr Hulley’s offices. Although there were further
disputes of
fact concerning this, I shall rely only on the version of the
prosecution, in accordance with the approach to factual

disagreements set out above.
20
Mr
Van Loggerenberg and his team of seven searchers arrived at the
office before Mr Hulley did. One of the members of the team
was
Advocate Willie Muller, a senior state advocate of the office of
the National Prosecuting Authority, whose specific role
was to deal
with matters relating to privilege during the operation, should any
claim to privilege be made. When Mr Hulley
arrived at 07h35, he
was given a copy of the warrant which he read. Mr Hulley then
informed Mr Van Loggerenberg that he could
assist the search team
by showing them the documents he had received from Mr Parsee. He
took Mr Van Loggerenberg to his filing
offices where he pointed out
two boxes that were still sealed. There was an inventory attached
to the side of each box. Mr
Hulley asked whether he could copy the
inventories. Mr Van Loggerenberg agreed he could, and Mr Hulley
then did so. The boxes
were then seized and Mr Hulley was given a
receipt for them. Throughout this process, Mr Hulley was entirely
co-operative
and he did not suggest that any of the documents
contained in the boxes was or might be privileged. He then left
for the airport.
The members of the search team checked the
contents of the boxes against their inventories and left at 09h00,
having completed
their task.
On
his way to the airport, Mr Hulley telephoned Mr Steynberg and said
that he wanted to challenge the lawfulness of the searches
and that
for that purpose he needed a copy of the affidavit pursuant to
which the warrants had been obtained. After contacting
the leader
of the prosecution, Advocate William Downer (Mr Downer), Mr
Steynberg told Mr Hulley that he could obtain a copy
of the
affidavit from the registrar of the Pretoria High Court. Mr Hulley
asked Mr Steynberg whether all of the documents
could be sealed and
lodged with the registrar until the lawfulness of the search and
seizure had been determined. Mr Steynberg
responded that he would
check with Mr Downer but that the law did not make provision for
the documents to be lodged with the
registrar for that purpose. Mr
Steynberg then spoke to Mr Downer, who agreed with that approach.
When he arrived in Johannesburg,
Mr Hulley again spoke with Mr
Steynberg who told him what Mr Downer had said and suggested that
he contact Mr Downer directly.
Mr
Hulley then telephoned Mr Downer and asked him to stop the searches
so that he could obtain a copy of the affidavit used
in support of
the application for the search warrants and have an opportunity to
apply for a court order declaring the search
of his offices to be
unlawful. Mr Downer declined the request. Mr Hulley then asked
him what would happen if any of the documents
was privileged. Mr
Downer replied that Mr Hulley should decide which documents he
considered to be privileged. Mr Downer
also said that it did not
seem to him that any of the documents could be privileged because
they had emanated from Mr Parsee
who had said that they were
documents Mr Shaik had held in his capacity as Mr Zuma’s
financial advisor. Mr Downer specifically
stated in his affidavit
that Mr Hulley made no further request of him and did not claim
privilege in respect of any of the
documents seized from his
offices.
Later
that day Mr Hulley spoke with Mr Baloyi, who was asked to furnish
him with a copy of the papers filed in support of the
application
for the search warrants. Mr Hulley explained that he needed time
to study those papers in order to decide whether
to mount a
challenge to the warrants. He asked Mr Baloyi to persuade Mr
Downer to agree that the documents taken from his
offices be
deposited with the registrar pending that decision. He did not
claim privilege in respect of any of the documents.
Messrs Baloyi
and Hulley agreed to meet the following morning, which they did.
Mr Baloyi gave Mr Hulley a copy of Mr Du Plooy’s
affidavit
and told him that his request could not be acceded to.
The
next day, on 19 August 2005, Mr Hulley sent a fax to Mr Steynberg
stating:
“
As per our prior
telephonic consultation with your Messrs Downer and Baloyi we
confirm that we are of the view that a certain
privilege attaches to
the entire body of documents seized from our offices.
In the event we are further of
the view that in terms of the provisions of the
National Prosecuting
Authority Act that
such documents ought to be lodged with the
Registrar of the High Court in these circumstances.”
Mr
Steynberg replied by fax as follows on 22 August:
“
The search and seizure
operation conducted at your offices on 18 August and our subsequent
telephone conversations refer.
I am informed by the DSO
[Directorate of Special Operations] members who conducted the search
that you pointed out to them the
documents described in the search
warrant, namely the financial documents relating to Mr Zuma that
were forwarded to you by his
former financial manager, Mr Schabir
Shaik, via his attorney Mr Reeves Parsee. No other documents were
read or seized by the
DSO members, nor were your offices physically
searched.
I am informed further that at
no stage did you or any of your staff indicate to the members
present that the documents seized
were, or might be, privileged.
In the abovementioned
circumstances, we are of the view that such documents constitute
evidentiary material that is highly relevant
to the current
investigation and that no legal privilege attaches to such
documents.
We are therefore of the view
that there is no reason in law why these documents should be handed
to the registrar for safekeeping
and accordingly we decline to do
so.”
Mr
Hulley has to date made no attempt to explain further or clarify
his claim that “a certain privilege attaches to the
entire
body of documents”. Moreover, although he has had ample
opportunity to find out whether any of the documents
taken from his
office is indeed privileged, Mr Hulley has at no stage claimed that
any specific document or item is in fact
privileged.
The
statutory framework
Before
considering the judgments of the lower courts in these two
applications, it will be convenient to set out the statutory

framework. The key statutory provisions in this case are to be
found in sections 28 and 29 of the Act. The relevant parts
of
section 28 provide as follows:
“
Inquiries by
Investigating Director
(1) (a) If the Investigating
Director has reason to suspect that a specified
offence has been or is being
committed or that an attempt has been or is being made to commit
such an offence, he or she may conduct
an investigation on the
matter in question, whether or not it has been reported to him or
her in terms of section 27.
(b) If the National Director
refers a matter in relation to the alleged commission or attempted
commission of a specified offence
to the Investigating Director, the
Investigating Director shall conduct an investigation, or a
preparatory investigation as referred
to in subsection (13), on that
matter.
(c) If the Investigating
Director, at any time during the conducting of an investigation on a
matter referred to in paragraph
(a) or (b), considers it desirable
to do so in the interest of the administration of justice or in the
public interest, he or
she may extend the investigation so as to
include any offence, whether or not it is a specified offence, which
he or she suspects
to be connected with the subject of the
investigation.
. . . .
(13) If the Investigating
Director considers it necessary to hear evidence in order to enable
him or her to determine if there
are reasonable grounds to conduct
an investigation in terms of subsection (1)(a), the Investigating
Director may hold a preparatory
investigation.”
The
relevant parts of section 29 provide as follows:
“
Entering upon premises
by Investigating Director
(1) The Investigating Director
or any person authorised thereto by him or her in writing may,
subject to this section, for the
purposes of an investigation at any
reasonable time and without prior notice or with such notice as he
or she may deem appropriate,
enter any premises on or in which
anything connected with that investigation is or is suspected to be,
and may—
(a) inspect and search those
premises, and there make such enquiries as he or she may deem
necessary;
(b) examine any object found on
or in the premises which has a bearing or might have a bearing on
the investigation in question,
and request from the owner or person
in charge of the premises or from any person in whose possession or
charge that object is,
information regarding that object;
(c) make copies of or take
extracts from any book or document found on or in the premises which
has a bearing or might have a
bearing on the investigation in
question, and request from any person suspected of having the
necessary information, an explanation
of any entry therein;
(d) seize, against the issue of
a receipt, anything on or in the premises which has a bearing or
might have a bearing on the investigation
in question, or if he or
she wishes to retain it for further examination or for safe custody:
Provided that any person from whom
a book or document has been taken
under this section may, as long as it is in the possession of the
Investigating Director, at
his or her request be allowed, at his or
her own expense and under the supervision of the Investigating
Director, to make copies
thereof or to take extracts therefrom at
any reasonable time.
(2) Any entry upon or search of
any premises in terms of this section shall be conducted with strict
regard to decency and order,
including—
(a) a person's right to,
respect for and the protection of his or her dignity;
(b) the right of a person to
freedom and security; and
(c) the right of a person to
his or her personal privacy.
(3) No evidence regarding any
questions and answers contemplated in subsection (1) shall be
admissible in any subsequent criminal
proceedings against a person
from whom information in terms of that subsection is acquired if the
answers incriminate him or
her, except in criminal proceedings where
the person concerned stands trial on a charge contemplated in
subsection (12).
(4) Subject to subsection (10),
the premises referred to in subsection (1) may only be entered, and
the acts referred to in subsection
(1) may only be performed, by
virtue of a warrant issued in chambers by a magistrate, regional
magistrate or judge of the area
of jurisdiction within which the
premises is situated: Provided that such a warrant may be issued by
a judge in respect of premises
situated in another area of
jurisdiction, if he or she deems it justified.
(5) A warrant contemplated in
subsection (4) may only be issued if it appears to the magistrate,
regional magistrate or judge
from information on oath or
affirmation, stating—
(a) the nature of the
investigation in terms of section 28;
(b) that there exists a
reasonable suspicion that an offence, which might be a specified
offence, has been or is being committed,
or that an attempt was or
had been made to commit such an offence; and
(c) the need, in regard to the
investigation, for a search and seizure in terms of this section,
that there are reasonable
grounds for believing that anything referred to in subsection (1) is
on or in such premises or suspected
to be on or in such premises.
. . . .
(7) (a) Any person who acts on
authority of a warrant issued in terms of this
section may use such force as
may be reasonably necessary to overcome any resistance against the
entry and search of the premises,
including the breaking of any door
or window of such premises: Provided that such person shall first
audibly demand admission
to the premises and state the purpose for
which he or she seeks to enter such premises.
(b) The proviso to paragraph
(a) shall not apply where the person concerned is on reasonable
grounds of the opinion that any object,
book or document which is
the subject of the search may be destroyed, tampered with or
disposed of if the provisions of the said
proviso are first complied
with.
. . . .
(9) Any person executing a
warrant in terms of this section shall immediately before commencing
with the execution—
(a) identify himself or herself
to the person in control of the premises, if such person is present,
and hand to such person a
copy of the warrant or, if such person is
not present, affix such copy to a prominent place on the premises;
(b) supply such person at his
or her request with particulars regarding his or her authority to
execute such a warrant.
(10) (a) The Investigating
Director or any person referred to in section 7(4)(a)
may without a warrant enter
upon any premises and perform the acts referred to in subsection
(1)—
(i) if the person who is
competent to do so consents to such entry, search, seizure and
removal; or
(ii) if he or she upon
reasonable grounds believes that—
(aa) the required warrant will
be issued to him or her in terms of subsection (4) if he or she were
to apply for such warrant;
and
(bb) the delay caused by the
obtaining of any such warrant would defeat the object of the entry,
search, seizure and removal.
(b) Any entry and search in
terms of paragraph (a) shall be executed by day, unless the
execution thereof by night is justifiable
and necessary, and the
person exercising the powers referred to in the said paragraph shall
identify himself or herself at the
request of the owner or the
person in control of the premises.
(11) If during the execution of
a warrant or the conducting of a search in terms of this section, a
person claims that any item
found on or in the premises concerned
contains privileged information and for that reason refuses the
inspection or removal of
such item, the person executing the warrant
or conducting the search shall, if he or she is of the opinion that
the item contains
information which is relevant to the investigation
and that such information is necessary for the investigation,
request the
registrar of the High Court which has jurisdiction or
his or her delegate, to seize and remove that item for safe custody
until
a court of law has made a ruling on the question whether the
information concerned is privileged or not.
(12) Any person who—
(a) obstructs or hinders the
Investigating Director or any other person in the performance of his
or her functions in terms of
this section;
(b) when he or she is asked in
terms of subsection (1) for information or an explanation relating
to a matter within his or her
knowledge, refuses or fails to give
that information or explanation or gives information or an
explanation which is false or
misleading, knowing it to be false or
misleading,
shall be guilty of an offence.”
The
judgments of the Durban and Pretoria High Courts
On
6 October 2005 Messrs Zuma and Hulley applied to the Durban High
Court seeking relief in respect of seven warrants. (The
attacks on
two of the warrants have since become moot.) On 15 February 2006
Hurt J declared five search warrants invalid and
the searches
pursuant to them, at Mr Hulley’s office and the four premises
connected to Mr Zuma, unlawful. The court
ordered the NDPP and
other respondents to return to the applicants all items seized
under the warrants, together with all copies
that had been made,
and to pay the costs of the application.
21
Hurt
J’s decision was based on three separate grounds. First, he
held that the prosecution had not shown, as section
29(5)(c)
required, that there was a need for search and seizure in terms of
the section. The material put before Ngoepe JP
did not contain a
persuasive explanation for the necessity of such an operation. In
Hurt J’s view, it was doubtful whether
additional evidence
was needed for the purposes of the investigation, but even if
further evidence were necessary, it had not
been shown why an
invocation of the powers of subpoena in terms of section 28 of the
Act were insufficient for this purpose.
Second, the warrants were overly vague in two respects. They did
not describe the suspected offences with sufficient particularity

and so did not “convey intelligibly to . . . [the] searched
the ambit of the search [they] authorise[d]” as is
required
by
Powell NO and Others v Van der Merwe NO and Others
.
22
Hurt J interpreted this principle to require that the warrants
should have specified the suspected offences exactly, as well
as
when and by whom they were allegedly committed. Furthermore, the
warrants were unduly vague because they all contained
what the
judge called a “catch-all paragraph”,
23
which, he opined, effectively authorised an unbounded search of the
premises in question.
The
third ground for Hurt J’s decision was that the Investigating
Director should have been aware that attorney-client
privilege
might have been jeopardised during the course of the search of Mr
Hulley’s offices, which could have resulted
in a violation of
Mr Zuma’s fair trial rights.
24
This should have been prevented by an explicit reference in the
warrant to section 29(11) or by bringing that provision to
Mr
Hulley’s attention when the warrant was served on him.
On
5 January 2006 Thint and Mr Moynot (together with Mrs Moynot)
applied to the Pretoria High Court for similar relief, in respect

of the warrant executed at Thint’s offices, to that granted
by Hurt J. On 4 July 2006 Du Plessis J held that the application

for the warrant, its issue, and its subsequent execution were all
lawful.
25
The judge found, first, that Mr Du Plooy had complied with his
duty to make full disclosure of the material facts in his
application for the warrants to Ngoepe JP. Second, the warrants
were not invalid for want of an explicit reference to section

29(11) of the Act, as there was no need for such a reference either
in principle or on the facts of the case. Third, the affidavit

sufficiently established a reasonable need in all the circumstances
for a search and seizure warrant. Fourth, the terms of
the warrant
were not fatally overbroad, because they did not authorise anything
more than the Act itself authorised and they
conveyed intelligibly
to both searcher and searched the ambit of that authority. The
catch-all paragraph, moreover, was not
fatal because it was
qualified by a requirement that anything seized under it had to
have at least a possible bearing on the
investigation. Finally,
the right to privilege in respect of computer documents could not
aid Thint, because on the respondents’
version Ms Govender
did not claim privilege, but in any event Thint had failed to claim
privilege subsequently in respect of
any particular item despite
being well placed to do so.
The
judgments of the Supreme Court of Appeal
Following
the decisions of Hurt J and Du Plessis J in the Durban and Pretoria
High Courts, the state and Thint respectively
appealed to the
Supreme Court of Appeal. Argument in respect of the appeals was
heard on 28 and 29 August 2007, and two separate
judgments were
handed down on 8 November 2007. In both, the court held by a
three-two majority that the application for, issue,
and execution
of, all the respective warrants were lawful. The first judgment
overturned the order of Hurt J, while the second
judgment confirmed
the order of Du Plessis J. The reasons in respect of both appeals
were provided in the first judgment;
the second judgment merely
referred to the first.
In
both instances the minority judgment was written by Farlam JA, with
whom Cloete JA concurred. In essence, the minority held
the second
ground advanced by Hurt J as alone determinative of the appeals:
the warrants read on their own were defective
because they did not
intelligibly convey to the searched person the ambit of the
authorised search and seizure operation, in
breach of the principle
enunciated in
Powell
.
26
Although the operative part of the warrants conferred the power to
examine and thereafter to seize only items which had or
might have
a bearing on the investigation in question, the terms of the
investigation itself were so general that it was impossible
to
ascertain what the warrants covered.
In
reaching this conclusion, the minority held that the
Powell
principle of intelligibility meant that the warrant must
itself, without reference to any extraneous document, objectively
define
the ambit of the authorised search at the time it is carried
out. It rejected the prosecution’s argument that the scope

of a warrant need only be objectively delineable if and when
subsequently challenged in court after the searched person has
had
sight of the affidavit on the strength of which the warrant was
issued. It held further that the searched person’s
knowledge
of the investigation in question was irrelevant to the
intelligibility of a search warrant. The purpose of requiring
a
warrant’s intelligibility to the searched person at the time
of execution was, the minority held, to enable him or
her to
ascertain the items to which a search could lawfully be directed
and thereby to enable him or her to take steps immediately
to
minimise the invasion of his or her rights to privacy and property.
The
minority then accepted the prosecution’s alternative
submission that the High Court orders should be varied to ensure

the preservation of the evidence seized under the warrants. It
held that the originals of the seized documents should be returned

to the applicants, but that copies be kept under seal by the
registrar of the High Court so that a subsequent criminal trial

court could ultimately decide whether those copies should
nevertheless be admitted as evidence, despite having been
unlawfully
obtained, in terms of section 35(5) of the Constitution.
This, the minority held, was a just and equitable order in terms

of sections 38 and 172(1) of the Constitution, because it
successfully balanced the competing constitutional imperatives
involved.
The
majority decision in both appeals was written by Nugent JA, with
whom Ponnan and Mlambo JJA concurred. The majority held
in
contrast that the warrants were not defective and therefore that
the seized items need neither be returned to the applicants
nor
preserved with a High Court registrar.
The
majority’s key disagreement with the minority concerned the
proper interpretation and application of the principle
of
intelligibility laid down in
Powell
. The majority
emphasised that the starting point was what the Act required, and
not principles enunciated in case law concerning
warrants issued in
terms of different legislation. Nevertheless, warrants by their
nature have to comply with two further
criteria of validity: They
have to be capable of being understood, and they can authorise no
more than is permitted by the
authorising statute itself.
Powell’s
case, the majority held, merely restated these principles and
did not, as the minority effectively held, establish a novel
principle
that all warrants must necessarily contain all the
information required to identify what may be searched for without
travelling
outside the warrant.
Powell
also did not
establish, as a matter of law, that the failure to specify in a
warrant the exact offence that is suspected, renders
it unduly
vague. The warrant declared invalid in that case was
distinguishable from the warrants in these appeals; so, in
the end,
Powell
was not directly applicable.
The
majority accordingly held that it is not the law that a warrant
issued in terms of section 29 of the Act must on its face
contain
information that enables the searched person to identify exactly
what may be seized. All that is required is that
the warrant must
be capable of objective delineation, and extrinsic evidence may be
used to establish its meaning with certainty.
The Act does not
explicitly require anything further, and it should also be
interpreted to require implicitly that no additional
information
about the investigation be given to searched persons, for at least
five reasons. First, it is impossible to circumscribe
what
information should be given with certainty; second, it would be
impossible to place searched persons in a position of
total
certainty and the law should not be interpreted to require empty
gestures in that direction; third, disclosing the full
nature of
the investigation would undermine its prospects of success; fourth,
search and seizure operations are not dependent
on the co-operation
of searched persons, so the searched persons need not be placed in
a position of total certainty; and fifth,
it would be nonsensical
always to require disclosure of information in a warrant when
searches are sometimes permitted without
any warrant or any
disclosure at all.
The
majority applied these principles to the warrants in question and
found them to express intelligibly and with sufficient
certainty
the scope of the authority they conferred: They permitted a search
for and seizure of all the species of material
referred to in the
annexures, all of which were capable of being identified as having,
or possibly having, a bearing on the
investigation in question.
What the investigation entails and whether items seized have or
might have a bearing on it were
objective facts capable of being
ascertained. Moreover, the catch-all paragraphs did not differ
materially from the other
paragraphs in the annexures.
As
far as the “need” for a warrant in terms of section
29(5)(c) was concerned, the majority held that Hurt J set
the bar
too high by requiring the prosecution to show in every case that
the material could not be obtained by invoking the
powers of
subpoena under section 28. It held that his approach would
undermine the success of investigations into serious
and complex
crime in terms of the Act. On the facts of this case, Mr Du
Plooy’s affidavit clearly established a need
for search and
seizure in terms of section 29.
Finally,
as to the question of privilege, the majority held that the fact
that the warrants did not expressly refer to section
29(11) did not
constitute sufficient reason for their invalidation. Moreover, the
execution of the warrants at the offices
of Mr Hulley and Thint was
not unlawful for any failure in regard to privilege. The
applicants failed to show that special
precautions to avoid
disclosure of privileged information, above and beyond those
required by the Act, were called for in the
circumstances.
The
indictment of Mr Zuma and the Thint companies
During
November 2005 Mr Zuma and the Thint companies were indicted to
stand trial on 31 July 2006 in the Pietermaritzburg High
Court.
During June or early July 2006 the prosecution applied for a
postponement of that criminal trial. One of the main
grounds
relied on in the postponement application was that the state
intended to appeal against the judgment of Hurt J, which
had
declared the searches and seizures unlawful. Msimang J refused
that application on 20 September 2006, but the prosecution
declined
to withdraw the charges and the matter was struck from the roll.
Subsequently, on 28 December 2007, the National
Prosecuting
Authority served a fresh indictment on Mr Zuma and the Thint
companies alleging the commission of racketeering,
corruption,
fraud, money laundering and tax offences, and summoning them to
appear before the Pietermaritzburg High Court on
4 August 2008.
This second indictment was drafted after the state had had the
opportunity to consider all the documents seized
under the
ostensible authority of the warrants now under consideration.
The
parties’ submissions
Having
set out fully the factual background, the terms of the warrants,
the statutory framework, and the relevant litigation
history, I am
now in a position to consider the grounds of the appeal.
Although
Thint advanced argument separately from Mr Zuma and Mr Hulley, I
present all of the arguments in a unified form to
avoid repetition.
The overall scheme of the applicants’ submissions is that
the approach of the majority of the Supreme
Court of Appeal is
flawed; the minority’s approach to the validity of the search
warrants is preferable; but the minority
erred in making a
preservation order; instead, all items seized and copies thereof
should immediately be returned to the applicants.
The specific
reasons advanced for these conclusions are as follows.
The
applicants first argue that leave to appeal should be granted. The
issue and execution of the warrants implicates the rights
to
privacy and property in terms of sections 14 and 25 of the
Constitution respectively, which provide the normative substratum

for interpreting sections 28 and 29 of the Act through the prism of
the Constitution. Mr Zuma also submits that his right
to dignity
in terms of section 10 of the Constitution was infringed and that
his fair trial rights in terms of section 35 were
threatened.
Moreover, it is in the interests of justice to grant leave to
appeal, because the constitutional issues are important,
the
underlying dispute concerning alleged criminal offences by Mr Zuma
is of great public importance, and there is a reasonable
prospect
that this Court will reverse or materially alter the order of the
Supreme Court of Appeal.
The
applicants then assert that the application to Ngoepe JP for the
issue of the warrant in terms of section 29 of the Act
was flawed
in material respects. First, Thint argues that the prosecution
made out no case to Ngoepe JP for dispensing with
notice to Thint.
A warrant should not be issued ex parte unless the applicant
establishes that it would defeat the object
of that warrant if
notice were to be given to the affected party. Mr Du Plooy did not
attempt to make out such a case. Second,
the ex parte
application was flawed because it failed to disclose various
material facts concerning Thint’s past co-operation with the

prosecution, Mr Moynot’s substitution for Mr Thétard
as a director of the company, and the latter’s relocation
to
Mauritius. This amounted to a breach of the duty of utmost good
faith required of all ex parte applicants. Third, the
applicants
question whether the application to Ngoepe JP established the need
for a search and seizure operation, as is required
by section
29(5)(c). They submit that the law requires prosecuting
authorities to establish that there is no other reasonable
way to
gain access to the subject matter of the search, and that the
prosecution failed to explain why it could not have obtained
the
evidence through the less restrictive means of a subpoena under
section 28. Fourth, they argue that Mr Du Plooy’s
affidavit
did not make out a case for such a wide search. The affidavit
should have justified the need to seize every class
of item
specified in annexure A, but in fact failed even to mention some of
the classes there specified.
The
applicants also argue that the terms of the warrants, considered in
the abstract at the time of their issue, were fatally
overbroad and
vague and therefore were not intelligible to the searched persons,
as is required by
Powell’s
case.
27
In this regard they argue, first, that the majority of the Supreme
Court of Appeal was incorrect to hold that the meaning
of the
warrants could legitimately be ascertained with reference to
external sources, such as Mr Du Plooy’s affidavit;
instead,
the minority was correct to hold that warrants must themselves be
intelligible on their own terms and without any
outside aid.
Second, the warrants were so broadly phrased that they effectively
authorised an unlimited search of the various
premises. They
should have specified the particular offences under suspicion. It
follows that the warrants did not convey
to the reader what may be
searched for and seized. Third, Thint argues that the prosecution
merely adopted a “one size
fits all” approach to the
issue of the various warrants, and thereby failed to tailor them
sufficiently to the individual
circumstances of the persons
connected to the premises searched. Fourth, Messrs Zuma and Hulley
argue that the inclusion of
paragraphs 9, 10 and 11 in annexure A
betrayed the prosecution’s unlawful and illegitimate attempt
to gain access to
Mr Zuma’s prospective defences in what at
the time of the warrants’ issue was merely a probable
upcoming criminal
trial.
The
applicants’ next set of submissions concern what they
consider to have been the prosecution’s unlawful disregard

for their legal professional privilege. First, they assert that
the warrants were all unlawful for want of an explicit reference
to
the statutory protection for privilege in terms of section 29(11)
of the Act. Alternatively, the persons conducting the
search and
seizure operation should have drawn that provision to the attention
of the persons in charge of the relevant premises.
This is
particularly important where the offices of legal practitioners are
searched, as in Mr Hulley’s case. The refusal
of the
prosecution team to seal and lodge with the registrar the items
seized from Mr Hulley’s office after Mr Hulley
requested
this, and after his subsequent claim by fax that “a certain
privilege” attached to all those documents,
was unlawful.
Finally,
the applicants submit that if either the application for, issue, or
execution of, the warrants was unlawful for any
of the above
reasons, the search and seizure operation as a whole should be set
aside, and all the items seized and copies
thereof should
immediately be returned to them. In this regard, they argue that
it would be improper for this Court to make
an order for the
preservation of these items by a High Court registrar until the
upcoming criminal trial of Mr Zuma and the
Thint companies. A
preservation order, they assert, would amount to a continuing
violation of their privacy and property rights
that could not be
justified. They also submit that it would, in effect, afford the
prosecution an advantage as a result of
acting unlawfully; an
advantage that they would not have secured had they not acted at
all. Accordingly, only the return of
all items would vindicate
their constitutional rights.
The
state resists all of these arguments. It starts by asserting that,
regardless of the constitutional issues raised and the
applicants’
prospects of success, it would not be in the interests of justice
to grant leave to appeal. It maintains
that it was not necessary
to notify the applicants of the application for the search
warrants, that Mr Du Plooy’s affidavit
disclosed all material
facts, and that the application clearly made out the need for the
search and seizure operation in terms
of section 29. It argues,
moreover, that the warrants were neither overbroad nor unduly vague
whether considered on their
own or in the light of Mr Du Plooy’s
affidavit. In this regard, there was compliance with the
requirement of intelligibility
laid down in
Powell
. It
submits that they complied at all times with their duties to
respect the applicants’ legal professional privilege,
and in
particular that there was no need for the warrants to have included
an explicit reference to section 29(11) of the Act.
They argue,
further, that there was nothing untoward about the manner in which
the warrants were executed at Mr Hulley’s
and Thint’s
offices. Finally, they submit, in the alternative, that should
this Court decide for any reason that the
search and seizure
operations be set aside, it would be appropriate to grant a
preservation order.
The
legal issues
It
appears from the above that at least nine legal issues arise.
First, is it in the interests of justice to grant leave to
appeal?
Second, should the prosecution have notified the applicants of the
application for the issue of the warrants? Third,
did the
prosecution fail to disclose various material facts in that
application? Fourth, did Mr Du Plooy’s affidavit
establish
the need for a search and seizure operation under section 29 of the
Act? Fifth, should the affidavit have expressly
justified the need
to seize every class of items mentioned in annexure A? Sixth, were
the warrants overbroad or unduly vague?
Seventh, were the warrants
themselves unlawful for any other reason, including the inclusion
of the catch-all paragraphs,
the inclusion of paragraphs 9, 10 and
11 of annexure A, or the lack of an explicit reference to section
29(11) of the Act?
Eighth, were the warrants executed in a way
that provided insufficient protection for the applicants’
legal professional
privilege? And finally, if the search and
seizure operations were unlawful for any reason, should this Court
grant a preservation
order or should the seized items be returned
to the applicants?
I
turn now to deal with the first of these questions.
Leave
to appeal and the interests of justice
The
prosecution argues that, regardless of whether the applicants’
arguments bear reasonable prospects of success, it
is not in the
interests of justice to grant leave to appeal. It bases this
submission on several grounds. First, this case
concerns “justice
in theory” not “justice in fact”, because the
applicants have made no attempt to
establish that they have
suffered any actual prejudice despite having had ample opportunity
to do so. Second, the applicants
launched these proceedings for
one purpose only, namely, to prevent the state from using the
seized items as evidence against
Mr Zuma and the Thint companies in
a subsequent criminal trial. They thereby are trying to circumvent
the application of section
35(5) of the Constitution, which is the
way the Constitution chooses to balance the various competing
interests when deciding
whether or not to admit unlawfully obtained
evidence. This is particularly invidious, they argue, given that
the evidence
is incriminating of Mr Zuma and the Thint companies,
and for that reason it is of great public importance that the truth
emerges.
Third, this form of preliminary litigation unduly delays
the commencement of criminal trials and therefore should be
strongly
discouraged. The trial court, rather than preliminary
courts, is best placed to balance the varying public and private
interests
at stake, namely, the public and private interests in the
emergence of truth, the applicants’ interests in their
privacy
and property, and the accused persons’ fair trial
rights. Leave to appeal should therefore be refused to allow the
trial
court to do so in this case.
There
is certainly a great deal of merit in these arguments, but I do not
agree that it would be in the interests of justice
for leave to
appeal to be refused in these applications. There are several
reasons for my conclusion. The first reason is
that, were this
Court to refuse leave to appeal, the Supreme Court of Appeal
decision that the warrants and searches and seizures
were lawful
would stand and would in all probability bind any subsequent trial
court. It would follow that the seized evidence
would have been
lawfully obtained and section 35(5) would have no application. The
relevant, competing interests would not
fall to be balanced at all.
It seems to me that the argument that the trial court is best
placed to balance those interests
is relevant only to the question
whether or not a preservation order should be granted. The same is
true for the argument
that the seized evidence is very important,
which merely goes to indicate that, if the items were indeed
unlawfully obtained,
they should nevertheless be preserved so that
the trial court can decide whether or not to admit them anyway.
28
The
second reason why it is in the interests of justice to grant leave
to appeal is that it would be desirable to settle the
law
regulating overbreadth and undue vagueness of search warrants
issued in terms of the Act. It is in the public interest
to
clarify the requirement of intelligibility laid down in
Powell
,
and to consider whether it is reconcilable with the approach of the
majority of the Supreme Court of Appeal in these applications.
I
nevertheless do agree with the prosecution that this Court should
discourage preliminary litigation that appears to have no
purpose
other than to circumvent the application of section 35(5).
Allowing such litigation will often place prosecutors between
a
rock and a hard place. They must, on the one hand, resist
preliminary challenges to their investigations and to the
institution
of proceedings against accused persons; on the other
hand, they are simultaneously obliged to ensure the prompt
commencement
of trials. Generally disallowing such litigation
would ensure that the trial court decides the pertinent issues,
which it
is best placed to do, and would ensure that trials start
sooner rather than later. There can be no absolute rule in this
regard,
however. The courts’ doors should never be
completely closed to litigants. If, for instance, a warrant is
clearly unlawful,
the victim should be able to have it set aside
promptly. If the trial is only likely to commence far in the
future, the victim
should be able to engage in preliminary
litigation to enforce his or her fundamental rights. But in the
ordinary course of
events, and where the purpose of the litigation
appears merely to be the avoidance of the application of section
35(5) or the
delay of criminal proceedings, all courts should not
entertain it. The trial court would then step in and consider
together
the pertinent interests of all concerned. If that
approach is generally followed the state would be sufficiently
constrained
from acting unlawfully by the application of section
35(5) and by the possibility of civil and criminal liability. The
nature
and degree of unlawfulness of the search warrant is an
important factor to be borne in mind for the purposes of a decision

under section 35(5). It is for this reason that the same court
should consider the unlawfulness of the warrant and its impact.
The
suggestion that section 34 or section 38 of the Constitution might
be infringed by courts that adopt the approach commended
in the
preceding paragraph is not justified. Section 34 of the
Constitution
29
requires a dispute that can be resolved by law to be determined by
a court that is independent and impartial. The court that
hears
the criminal trial will be both independent and impartial. Section
38 of the Constitution
30
confers the right on any person who alleges an infringement of or
threat to a right in the Bill of Rights to approach a competent

court and the court may “grant appropriate relief”. It
will be appropriate for a court not to entertain proceedings
which
are brought in terms of section 38 simply in order to avoid the
application of section 35(5) or to achieve a delay in
criminal
proceedings.
Despite
these observations, I do not think that a stop should be put to the
litigation in this particular case, for the two
reasons advanced
above. This approach is bolstered by the fact that constitutional
issues have indeed been raised and that
it is in the interests of
justice that the lawfulness of these warrants be finally
determined. I therefore hold that it is
in the interests of
justice to grant leave to appeal.
The
proper approach to the merits
Before
considering the eight legal issues that remain, it is necessary
first to set out both what I consider to be the proper
approach to
these matters, and the applicable constitutional principles.
It is important to note that in the two applications now before me,
the applicants do not challenge the constitutionality of
the
relevant statutory provisions.
31
This is perhaps unsurprising in view of the fact that this Court,
in
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
,
32
unanimously held that section 29(5) of the Act was not inconsistent
with the Constitution. That decision explained the duty
of courts,
imposed by section 39(2) of the Constitution,
33
first to interpret legislation, so far as its language will allow,
so as to promote the spirit, purport and objects of the
Bill of
Rights, before determining whether that legislation unjustifiably
violates a fundamental right:
“
It is necessary [before
considering the constitutionality of legislation], to ascertain the
proper meaning of the relevant provisions
in the Act . . . . The
Constitution requires that judicial officers read legislation, where
possible, in ways which give effect
to its fundamental values.
Consistently with this, when the constitutionality of legislation is
in issue, they are under a duty
to examine the objects and purport
of an Act and to read the provisions of the legislation, so far as
is possible, in conformity
with the Constitution. . . . [J]udicial
officers must prefer interpretations of legislation that fall within
constitutional bounds
over those that do not, provided that such an
interpretation can be reasonably ascribed to the section. . . . It
follows that
where a legislative provision is reasonably capable of
a meaning that places it within constitutional bounds, it should be
preserved.
Only if this is not possible should one resort to [a
declaration of unconstitutionality and an appropriate remedy].”
34
The
Court then held that, although the provisions of section 29 of the
Act clearly constituted a limit to the right to privacy
conferred
by section 14 of the Constitution,
35
section 29(5) of the Act, properly interpreted to promote
constitutional values in accordance with section 39(2), provided

sufficient safeguards against an unwarranted invasion of that
right. Accordingly, the limitation of the privacy right by section

29(5) was reasonable and justifiable.
36
In
this case, given that all the parties accept that sections 28 and
29 of the Act are consistent with the Constitution generally,
and
with the right to privacy in particular, I am instead called upon
to interpret those provisions in order to promote the
spirit,
purport and objects of the Bill of Rights, that is, “through
the prism of the Bill of Rights.”
37
It should be recalled that this approach immediately places limits
on the degree to which this Court can read new requirements
into
the legislation. In
National Coalition for Gay and Lesbian
Equality and Others v Minister of Home Affairs and Others
,
38
this Court held unanimously:
“
There is a clear
distinction between interpreting legislation in a way which
‘promote[s] the spirit, purport and objects
of the Bill of
Rights’ as required by s 39(2) of the Constitution and the
process of reading words into or severing them
from a statutory
provision which is a remedial measure under s 172(1)(b), following
upon a declaration of constitutional invalidity
under s 172(1)(a). .
. . What is now being emphasised is the fundamentally different
nature of the two processes.
The first process, being an
interpretive one, is limited to what the text is reasonably capable
of meaning.
The latter can only take place after the statutory
provision in question, notwithstanding the application of all
legitimate
interpretative aids, is found to be constitutionally
invalid.”
39
(Emphasis added.)
The
relevant constitutional principles
Although
these cases concern the proper interpretation and application of
section 29 of the Act as opposed to its constitutional
validity,
the constitutional setting remains important because it guides the
process of interpretation and application in terms
of section 39(2)
of the Constitution.
40
In
Hyundai
this Court made the point that section 29 strikes a
balance between protecting the privacy interests of individuals on
the
one hand and not interfering with the state’s
constitutionally mandated task of prosecuting crime on the other:
“
There is no doubt that
search and seizure provisions, in the context of a preparatory
investigation, serve an important purpose
in the fight against
crime. That the state has a pressing interest which involves the
security and freedom of the community
as a whole is beyond question.
It is an objective which is sufficiently important to justify the
limitation of the right to
privacy of an individual in certain
circumstances. The right is not meant to shield criminal activity
or to conceal evidence
of crime from the criminal justice process.
On the other hand, State officials are not entitled without good
cause to invade
the premises of persons for purposes of searching
and seizing property; there would otherwise be little content left
to the right
to privacy. A balance must therefore be struck between
the interests of the individual and that of the State”.
41
(Footnote omitted.)
Both these interests are important and neither can be sacrificed.
The Court went on to describe the importance of the state’s

powers under section 29 in the fight against crime:
“
It is a notorious fact
that the rate of crime in South Africa is unacceptably high. There
are frequent reports of violent crime
and incessant disclosures of
fraudulent activity. This has a seriously adverse affect not only
on the security of citizens and
the morale of the community but also
on the country’s economy. This ultimately affects the
government’s ability
to address the pressing social welfare
problems in South Africa. The need to fight crime is thus an
important objective in our
society, and the setting up of special
investigating directorates should be seen in this light. The
Legislature has sought to
prioritise the investigation of certain
serious offences detrimentally affecting our communities and has set
up a specialised
structure, the investigating directorate, to deal
with them. For purposes of conducting its investigatory functions,
the investigating
directorates have been granted the powers of
search and seizure.”
42
(Footnote omitted.)
The privacy of the individual is no less important. Section 14 of
the Constitution entrenches everyone’s right to privacy,

including the right not to have one’s person, home, or
property searched, possessions seized or the privacy of his or
her
communications infringed.
43
These rights flow from the value placed on human dignity by the
Constitution.
44
The courts therefore jealously guard them by scrutinising search
warrants “with rigour and exactitude”.
45
It
must be borne in mind, however, that in Thint’s case we are
concerned with the search of the offices of a company.
As a
corporate entity, Thint does not bear human dignity and thus its
rights of privacy are much attenuated compared with
those of human
beings.
46
Although
a search and seizure operation will inevitably infringe a person’s
right to privacy,
47
the Act provides considerable safeguards which ensure that the
infringement goes no further than reasonably necessary in the

circumstances.
48
Furthermore, the requirement of judicial authorisation for search
warrants is only one aspect of a broader scheme which ensures
that
the right to privacy is protected.
First,
a judicial officer will exercise his or her discretion to authorise
the search in a way which provides protection for
the individual’s
right to privacy.
49
Second, once the decision to issue the search warrant has been
made, the judicial officer will ensure that the warrant is
not too
general nor overbroad, and that its terms are reasonably clear. At
the third stage, the right to privacy may still
be vindicated by a
reviewing court, which can strike down overly broad warrants and
order the return of objects which were
seized in terms thereof.
Finally, the criminal trial must be fair, and an accused person is
entitled to object to any evidence
or conduct that may render the
trial unfair.
Understanding
the range of protections for the right to privacy at the different
stages of a criminal investigation and trial
is important. Courts
must take care that in ensuring protection for the right to
privacy, they do not hamper the ability of
the state to prosecute
serious and complex crime, which is also an important objective in
our constitutional scheme.
50
A
preliminary consideration of the correct approach to section 29
There
are four matters that arise for consideration in this preliminary
discussion: first, the importance of the fact that it
is a judicial
officer who issues the search warrant; second, the requirements
that must be met before a search warrant may
be issued; third, the
approach of the courts to the terms of search warrants; and fourth,
the circumstances in which a search
warrant may be set aside by a
court upon application.
Section
29(5) requires that a magistrate, regional magistrate or judge
issue the search warrant. The fact that the decision
as to whether
a warrant is to be issued is taken by an impartial and independent
judicial officer has been recognised as an
important consideration
in determining the constitutionality of search powers. In the
leading Canadian case of
Hunter v Southam Inc
, Dickson J
reasoned in this regard:
“
The purpose of a
requirement of prior authorization is to provide an opportunity,
before the event, for the conflicting interests
of the state and the
individual to be assessed, so that the individual’s right to
privacy will be breached only where the
appropriate standard has
been met, and the interests of the state are thus demonstrably
superior. For such an authorization
procedure to be meaningful it
is necessary for the person authorizing the search to be able to
assess the evidence as to whether
that standard has been met, in an
entirely neutral and impartial manner. At common-law the power to
issue a search warrant was
reserved for a justice. . . . 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 JA 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 he must at
a minimum be capable of
acting judicially.”
51
This
Court too has recognised that requiring a search warrant to be
issued by a judicial officer is an important part of the
protection
of fundamental rights and, in particular, the right to privacy.
52
The Court has also analysed the nature of the task a judicial
officer must undertake when deciding whether to issue a search

warrant (at the same time as it was considering the nature of the
tasks bestowed upon a person conducting a commission of inquiry)
as
follows:
“
The performance of such
functions ordinarily calls for the qualities and skills required for
the performance of judicial functions
– independence, the
weighing up of information, the forming of an opinion based on
information, and the giving of a decision
on the basis of a
consideration of relevant information. The same can be said about
the sanctioning of search warrants, where
the judge is required to
determine whether grounds exist for the invasion of privacy
resulting from searches.”
53
(Footnote omitted.)
It
is not necessary to decide in this case whether and in what
circumstances it is permissible for persons other than judicial

officers to issue search warrants. That question does not arise
here. For present purposes it is sufficient to note that
the task
of issuing a search warrant is clearly judicial in character. This
is underscored in the present context by the fact
that section
29(4) specifically requires judicial authorisation. It is in this
light that I consider the individual challenges
to the issue of the
search warrants later in this judgment.
The
second issue for discussion is what must be established in order
for a judicial officer to issue a search warrant. In
Hyundai
,
this Court carefully analysed this question
.
In that case,
the Court was concerned with the issue of a search warrant in the
context of a preparatory investigation in
terms of section 28(13).
The considerations referred to in that case are equally applicable
in the situation where a warrant
is sought under section 29(5) in
the context of a criminal investigation such as the present. After
a thorough analysis of
the section and the constitutional rights in
issue, the Court concluded as follows:
“
The warrant may only be
issued where the judicial officer has concluded that there is a
reasonable suspicion that such an offence
has been committed, that
there are reasonable grounds to believe that objects connected with
an investigation into that suspected
offence may be found on the
relevant premises and, in the exercise of his or her discretion, the
judicial officer considers it
appropriate to issue a search warrant.
These are considerable safeguards protecting the right to privacy
of individuals. In
my view, the scope of the limitation of the
right to privacy is therefore narrow.”
54
Section
29(5) thus requires a judicial officer to be satisfied, first, that
there is a reasonable suspicion that an offence,
which might be a
specified offence in terms of the Act,
55
has been committed; and secondly, that there are reasonable grounds
to believe that an item that has a bearing or might have
a bearing
on the investigation
56
is on or is suspected to be on the premises to be searched.
Finally, the judicial officer must consider whether it is
appropriate
to issue the search warrant. The decision to issue the
search warrant clearly involves the exercise of a discretion, as
the
reasoning in
Hyundai
makes plain. Factors relevant to
the exercise of that discretion will include the material set out
in the affidavit seeking
the search warrant and the text of the
warrant itself. Section 29(5) requires that affidavit to state the
nature of the inquiry,
the suspicion which gave rise to the
inquiry, and the need, in regard to the inquiry, for a search and
seizure in terms of
the section.
One
more point needs to be made about the proper approach of a judicial
officer considering the appropriateness of a search
and seizure.
It could be contended that a search and seizure operation is
necessarily more invasive than a summons and interrogation

procedure in terms of section 28.
57
On that basis, it could be argued that a judicial officer charged
with the responsibility of deciding whether to issue a search

warrant must issue a warrant only if what is sought to be achieved
cannot be achieved in terms of section 28. This is not
necessarily
the correct approach. There may be circumstances in which the
section 28 procedure may be more appropriate. And
there may be
others in which the section 29(5) procedure may better serve the
interests of the prosecution and of justice.
The section 28
procedure, in particular the interrogation, could in certain
instances be much more invasive than a search
and seizure operation
in which the provisions of section 29(2) are properly observed.
Once the judicial officer is of the view that a warrant should be
issued, he or she will have to consider the terms of the
warrant to
be issued. Thus the third issue for consideration arises. As
Cameron JA noted in the leading case of
Powell
,
58
the courts have always paid close attention to the terms of a
warrant to ensure that they are neither too general, nor vague or

overbroad. After analysing the relevant case law on the approach
of courts to the terms of search warrants over the past 100
years,
he summarised the relevant principles as follows:
“
These cases establish
this:
(a) Because of the great danger
of misuse in the exercise of authority under search warrants, the
courts examine their validity
with a jealous regard for the liberty
of the subject and his or her rights to privacy and property.
(b) This applies to both the
authority under which a warrant is issued, and the ambit of its
terms.
(c) The terms of a search
warrant must be construed with reasonable strictness. Ordinarily
there is no reason why it should be
read otherwise than in the terms
in which it is expressed.
(d) A warrant must convey
intelligibly to both searcher and searched the ambit of the search
it authorises.
(e) If a warrant is too
general, or if its terms go beyond those the authorising statute
permits, the Courts will refuse to recognise
it as valid, and it
will be set aside.
(f) It is no
cure for an overbroad warrant to say that the subject of the search
knew or ought to have known what was being looked
for: The warrant
must itself specify its object, and must do so intelligibly and
narrowly within the bounds of the empowering
statute.”
59
The
final issue to be considered in this preliminary section is the
approach of a court that must determine a challenge to the

lawfulness of the issue of a search warrant under section 29(5).
In supplementary written submissions filed after the close
of the
hearing, the state submitted that the decision to issue a search
warrant is an administrative one which falls within
the terms of
the Promotion of Administrative Justice Act.
60
The applicants, on the other hand, submitted that it is a judicial
discretion and does not fall within the scope of administrative

action. This latter approach accords more with the jurisprudence
of this Court.
As
mentioned above, this Court has pointed out that the decision to
issue a search warrant involves the exercise of skills similar
to
those required for the performance of judicial tasks:
“
independence, the
weighing up of information, the forming of an opinion based on
information, and the giving of a decision on
the basis of a
consideration of relevant information.”
61
It went on in the same judgment to state that the issuing of a
search warrant is an “essentially judicial” function.
62
This accords with the approach in Canada as well.
63
How
then should a court faced with a challenge to the issue of a search
warrant approach the question? The answer is to be
found in this
Court’s judgment in
Hyundai.
The Court made plain
that there were two jurisdictional facts for the issue of a search
warrant: the existence of a reasonable
suspicion that a crime has
been committed, and the existence of reasonable grounds to believe
that objects connected with an
investigation into that suspected
offence may be found on the relevant premises.
64
The Court went on to state that once the jurisdictional facts are
present, the judicial officer issuing the search warrant
then
exercises a discretion to issue the warrant. That discretion must
be exercised judicially.
When considering whether a warrant should be set aside, therefore,
a court will determine, first, whether on the record the
objective
jurisdictional facts were present. If they were not, then a court
will set aside the search warrant.
65
If the jurisdictional facts were present, then a court will
consider the exercise of the discretion by the judicial officer
to
issue the warrant. In order to determine the approach that a court
will take to the exercise of that discretion, it is
necessary to
classify the type of discretion under consideration.
66
One
of the core considerations when classifying the discretion is
whether in making the decision it is possible that there could
be a
legitimate difference of opinion as to the proper outcome of the
exercise of the discretion.
67
In this case, it seems clear that the discretion to issue the
warrant is a matter upon which different judicial officers may

reasonably and legitimately disagree. An appellate court,
therefore, may not interfere with the discretion simply because
it
would have reached a different conclusion to that reached by the
judicial officer issuing the warrant. It may only set
aside the
warrant if it is persuaded that the discretion has not been
exercised judicially, or flowed from a wrong appreciation
of the
facts or the law.
68
With
this preliminary analysis of the law complete, it is now necessary
to turn to consider the merits of the case before me.
Should
the applicants have been notified of the state’s application
for the warrants?
As
mentioned above,
69
Thint submits that the application for a search warrant in terms of
section 29 of the Act was flawed. Its first basis for
this
submission is that the prosecution failed to make out a case to
Ngoepe JP for dispensing with notice of the application
to it
(Thint). For this reason alone, it argues, the relevant search
warrant falls to be set aside. This contention is based
on an
understanding that a judge issuing a search warrant on the basis of
an ex parte application has to be satisfied that
a proper case for
not serving the application on the person affected by the search
warrant has been made out. This presupposes
that notice of such
application is the default position, unless a case to the contrary
is made out. Thint’s position
is that a case for dispensing
with notice had not, and, bearing in mind Thint’s previous
co-operation with the prosecution,
could not have, been made out.
I
assume, for the purpose of resolving this case, the correctness of
the position postulated in
Pretoria Portland
Cement Co Ltd and Another v Competition Commission and Others
,
70
namely, that an application for the issue of a warrant is an ex
parte application that can lead, in the first instance, only
to
provisional orders that are subject to reconsideration after all
the parties who have a direct and substantial interest
in the order
have been heard. That said, it is clear, for the textual and
principled reasons set out below, that the default
position for an
application in terms of section 29 of the Act must be that it is
made
without
notice to the affected parties.
We
must first have recourse to the provisions of the Act. Section
29(4) states that the premises referred to in section 29(1)
may
only be entered (subject to certain exceptions) under a search
warrant “issued in chambers”. This indicates
that,
ordinarily, the procedure is one without notice. Section 29(1)
itself states that the Investigating Director may enter
and search
premises “without prior notice or with such notice as he or
she may deem appropriate”. The placing
of the words “without
prior notice” first is a clear indication that the intention
of the legislature was that
the default position would be that
prior notice is not required, while the words “as he or she
may deem appropriate”
lends support to this conclusion: It is
the prerogative of the investigator to determine whether and how
notice need be given.
While this provision relates to the giving
of notice subsequent to the issue of a search warrant, and Thint’s
concern
relates to the giving of notice
prior
to such issue
(that is, at the application stage), it nevertheless implies that
ordinarily the procedure is one without notice.
The
above interpretation is in accordance with common sense: There is
normally a risk that, if suspects and their associates
receive
notice of an impending search, it is not unlikely that they will
remove or destroy the evidence sought.
71
It may well be that the more serious the crime, the more likely it
will be that suspects or their associates will remove or
destroy
incriminating evidence. In the absence of such inherent risk, a
judicial officer may justifiably require notification
of the party
to be searched, for the Act does not preclude this. However, in
the ordinary course, the provision of notice
to affected parties
has the potential to frustrate the purpose of the detection and
investigation of serious, complex and organised
crimes, evidence of
which is often to be found in documentary form or stored on
computers, which can be easily destroyed or
altered.
In
this case, the inherent risk was present. In his application for
the search warrant, Mr Du Plooy explained at length the
need for
all the searches to take place at the same time and that their
purpose might be defeated if the suspects were alerted
to them.
Furthermore, while Thint had, to a limited extent, co-operated with
the prosecution in the past, the incriminating
evidence previously
obtained by the state was obtained by way of search. This suggests
that there was at least a possibility
that Thint might not have
been co-operative if notice of the impeding search had been given
to it.
In
the circumstances, there was no compelling reason to require the
state to depart from the ordinary procedure of no notice.
While Mr
Du Plooy may not have explicitly stated that notice would not have
been appropriate, the provisions of his affidavit
show that this
was indeed the case. In my view, it cannot be said that the
application was flawed on this ground.
Did
the state fail to disclose material facts in its application to
Ngoepe JP?
The
applicants next seek to impugn the search warrants on the basis
that the ex parte application for the search warrants failed
to
disclose material facts which ought to have been disclosed.
It
is our law that an applicant in an ex parte application bears a
duty of utmost good faith in placing all the relevant material

facts before the court.
72
The duty of good faith requires a disclosure of all material facts
within the applicant’s knowledge. The Supreme Court
of
Appeal reiterated in
Powell
that an applicant for a search
warrant is “under a duty to be ultra-scrupulous in disclosing
any material facts that
might influence the Court in coming to its
decision.”
73
However, an investigator cannot be expected to disclose facts of
which he or she is not aware. The duty is also limited to
the
disclosure of facts that are material. In a complex and vast case
such as the present, there can be no crystal-clear distinction

between facts which are material and those which are not. There
will always be room for debate. It follows that, in cases
such as
the present, an applicant for a search and seizure warrant will
inevitably have to make a judgement as to which facts
might
influence the judicial officer in reaching its decision and which,
although connected to the application, are not sufficiently

relevant to justify inclusion. The test of materiality should not
be set at a level that renders it practically impossible
for the
state to comply with its duty of disclosure, or that will result in
applications so large that they might swamp ex
parte judges.
Thint’s
basis for attacking the warrants in this context relates to Mr Du
Plooy’s failure to disclose Thint’s
previous
co-operation in the investigation and Mr Thétard’s
relocation to Mauritius. First, Thint argues that
Mr Du Plooy
failed to inform Ngoepe JP of documentation which had been
obtained from Thint by way of a summons in terms
of section 28 of
the Act with the co-operation of Thint through its attorneys.
Second, Thint argues that Mr Du Plooy failed
to disclose fully the
extent of Thint’s previous co-operation in relation to the
section 28 investigation, which included
it making available to the
Directorate of Special Operations, during 2001, its computer
information and computer materials.
If Mr Du Plooy had made these
disclosures, Thint argues, Ngoepe JP would have questioned the need
for the authorisation of
a search warrant, particularly one issued
ex parte and on the terms it was issued.
In
my view, these submissions have no merit. Mr Du Plooy did in fact
disclose Thint’s previous co-operation by describing
the
questioning of Mr Thétard which occurred at an early stage
in the investigation. Particulars were also given of
the search
and seizure operations undertaken in 2001 at the premises of the
Thint group of companies in France and Mauritius,
and of the
documentation obtained from Thint’s premises in Midrand by
way of subpoena and with the co-operation of Thint
acting through
its attorneys. I am not persuaded that Mr Du Plooy erred
materially by failing to provide more detail on these
earlier
investigations and Thint’s previous co-operation. As I
elaborate below, it seems highly unlikely that the outcome
of the
application would have been different had these disclosures been
made. By August 2005 Thint was one of the prime suspects
in the
ongoing investigation. This fact was made clear in Mr Du Plooy’s
affidavit in the application for the warrants.
Thint is presumed
to be innocent, but a possibility exists that it may not be. It is
not far-fetched to suggest that the
possibility exists that a prime
suspect in an investigation may be reluctant to furnish
investigators with all the relevant
evidence.
On
my reading of the record of these applications, there is no
evidence of any co-operation between Thint (or any person on
its
behalf) and the state before May 2001. The evidence is that
Thint’s attorney, Mr Driman, was instructed to give
full
co-operation after the section 28 summonses had been received. It
is important to note that the summonses had all been
served in 2001
and that the summons of Mr Thétard was served in July 2001.
Mr Driman confirms that a mass of documentation
and computer
information was made available after and pursuant to summonses
being served. In my view, this information would
have made little
difference to the outcome of the application for the warrants, for
two reasons.
First,
the information was made available only after summonses had been
issued and it is plain that nothing material or incriminating
was
found. The real possibility therefore exists that documentary and
other material had been removed from the premises before
any
co-operation was offered.
Second,
Mr Thétard was not fully co-operative in response to the
2001 summons. The record suggests that he was in South
Africa and
not in Mauritius at the time. Yet, in response to the summons
served on him in July 2001, he produced all his diaries
except the
one for the year 2000. The point is that nothing incriminating was
discovered in the diaries he produced; the diary
with incriminating
information is the one he took to Mauritius.
On
behalf of Thint, much reliance was placed on the statement by
Advocate Gerda Ferreira (Ms Ferreira), in an application for
a
search and seizure and a
commission
rogatoire
made by
the prosecution to the Mauritian Ministry of Justice in October
2001, that Mr Thétard had relocated to Mauritius
in “the
second quarter of 2000”. This seems to imply that Mr Thétard
took his 2000 diary with him to Mauritius
when he relocated there.
A close examination of the record reveals no direct evidence as to
Mr Thétard’s whereabouts
in 2001; the record suggests
that he had not relocated entirely to Mauritius and so Ms
Ferreira’s statement may not be
fully correct. It should be
noted that the issue concerning Mr Du Plooy’s non-disclosure
of Mr Thétard’s
relocation was not raised by Thint in
its founding affidavit before the Pretoria High Court. If Mr
Thétard had in fact
relocated to Mauritius in the second
quarter of 2000, one would have expected this to have been pointed
out in its founding
affidavit. Yet, the point was only raised in
its replying affidavit before that court after Ms Ferreira’s
averment had
been discovered.
74
The
record before us suggests that Mr Thétard was in South
Africa for significant periods at least until June 2001.
He
consulted with Mr Driman, he provided certain documents, he was
present at the interrogation, and the section 28 summons
was served
on him at a Johannesburg address. He provided the state with his
diaries for 1997, 1998 and 1999 and specifically
withheld his diary
for the year 2000. According to the state, this was because the
meeting between Mr Zuma, Mr Shaik and Mr
Thétard during
March 2000, which was evidenced by the 2000 diary and which was
central to one of Mr Shaik’s convictions,
served finally to
confirm Mr Zuma’s willingness to participate in a corrupt
exercise.
It
should be mentioned that the mere fact that Mr Thétard
handed over his 2000 diary when he was requested to do so during

the search and seizure operation at Thint’s offices in
Mauritius on 9 October 2001, a fact heavily relied upon by Thint,

does not necessarily indicate a willingness to co-operate with
state investigators generally. Had he not handed the diary
over
voluntarily, the searchers would probably have located and seized
it themselves – an outcome that would have worked
to his
disadvantage. It follows that his handing over the diary may have
been motivated equally by self-interest as by a desire
to
co-operate. Thus, this fact is of little relevance one way or the
other.
Thint
also complains that Mr Du Plooy failed to inform Ngoepe JP that
when Mr Thétard had relocated to Mauritius, Mr
Moynot
succeeded him. The substance of Thint’s complaint here is
that Mr Moynot had been more willing to co-operate
during the
investigation than his predecessor, Mr Thétard, and that
this would have had a bearing on Ngoepe JP’s
decision to
issue the warrants.
75
I cannot agree with this submission. It seems unlikely that more
detail on Mr Thétard’s relocation would have
affected
Ngoepe JP’s decision to issue the warrants. Moreover, given
the layered factual matrix of the present case,
with an
investigation spanning several years, there will always be room for
debate as to what facts should have been included
in the
application for the search warrants. The test for disclosure
should not be set in such a way that it fails to recognise
that a
judgement has to be exercised by the authorities who seek a search
warrant. For the reasons stated above, I cannot
uphold Thint’s
complaint in this regard.
Messrs
Zuma and Hulley also contend that the application failed to
disclose material facts. Their submission is that Mr Du
Plooy
ought to have disclosed in his application for the warrants that—
“
there was a grave risk,
if not a substantial certainty, that privileged documents would be
seen, examined or seized during the
course of the search and seizure
operations, and in particular that claims to privilege might be
made”,
which
would have caused Ngoepe JP to require that a reference to section
29(11), the statutory procedure for dealing with privileged

documents discovered during a search, be incorporated into the
warrants. I consider this provision in greater depth below.
76
For the moment, however, it suffices to say the following.
There
is always a risk that privileged documents may be discovered during
a search, wherever the search takes place, and any
judge who issues
a search warrant will appreciate this. Section 29(11) is a
legislative tool established to manage the situation
that arises
when privilege is claimed in respect of items discovered during a
search. It provides for a procedure to be followed
where a person
who is being searched claims that items which have been discovered
during the search are privileged. That procedure
provides that, if
the investigator considers the items to be relevant to and
necessary for the investigation, the investigator
shall request the
registrar of the High Court having jurisdiction to seize and remove
the items and keep them in safe custody
until a court has
determined whether they are privileged.
77
Section
29(11) in no way undermines the ordinary common-law protection
accorded to privileged documents.
78
Should investigators seize documents that are privileged, but no
claim of privilege is made at the time of the search so that

section 29(11) does not come into operation, the ordinary rules
governing privileged documents will continue to apply. The
state
will therefore not be able to use the privileged documents in any
criminal proceedings, and any derivative evidence obtained
as a
result may also be excluded (depending on the application of
section 35(5) of the Constitution by the trial court). There
may
also be the risk that the unlawful seizure of privileged documents
in egregious circumstances could result in the trial
court ruling
that the trial itself is unfair.
Section
29(11) thus comes into operation if a claim of privilege is made
during a search. In those circumstances, it provides
a procedure
which enables the state to have the status of the documents quickly
determined without the disadvantages inherent
in waiting for the
criminal trial court to make that determination during the state’s
case. Section 29(11), therefore,
is a procedure created to
facilitate the work of the prosecution. It in no way impairs the
right of an accused person to claim
privilege when documents are
subsequently tendered.
I
am accordingly of the view that it was not necessary for the state
to say anything in its affidavit about the risk of attaching

privileged documents. As I have said above, that is a risk
inherent in every search. The relevant common-law rules regulate

the consequences of any seizure of privileged documents, in order
to protect the privilege. Section 29(11) is merely a procedure

established to short-cut the process of determining whether or not
documents are privileged when privilege is claimed during
a search.
I shall return to consider that procedure more fully later. At
this stage, I need merely say, on an overview of
all the facts,
that I am satisfied that the state discharged the duty of utmost
good faith by disclosing all material facts
within its knowledge
when making the application for the search warrants. The
applicants’ challenge on this ground must
fail.
Lastly,
it should be mentioned that if I had found that the state had
failed in its duty to disclose all material facts, this
Court would
in any event have been able to exercise its discretion to preserve
the orders granted by Ngoepe JP, provided there
were very cogent
practical reasons to do so.
79
It seems to me that, considering the nature of this vast and
complex investigation, this might well be a case where very cogent

practical reasons exist for the exercise of discretion condoning
non-disclosure. However, in the light of the conclusions
I have
come to in the preceding paragraphs, and having held that the
respondents did not fail to disclose material facts, it
is not
necessary for me to consider this point further.
Did
the state establish a “need” for a search and seizure
operation?
The third ground upon which the applicants argue that the
application for the search warrants was flawed is that it failed
to
establish a need for a search and seizure operation, in terms of
section 29(5)(c) specifically. The need for a search in
terms of
this provision can be demonstrated only, so the argument went,
where less invasive procedures, such as obtaining the
evidence in
terms of section 28 of the Act
80
or a search in terms of the Criminal Procedure Act,
81
will not yield the evidence required.
In the Durban High Court, Hurt J proposed a test for “need”,
which was to ask whether resort to section 29 (bearing
in mind the
nature of this remedy) was “reasonable in all the
circumstances”.
82
It would be difficult to disagree. However, the judge then went
on to state that “it cannot be reasonable if there
are other,
less drastic means available to the investigating authority which
may succeed.”
83
The applicants submit that this test is the correct one. They
submit that the state must demonstrate in the context of section
29
that there is no reasonable prospect that “the powers under s
28 would probably not result in the evidence being obtained.”
84
In so submitting, the applicants rely on a decision of the New
Zealand Court of Appeal,
Tranz Rail Ltd v Wellington District
Court
.
85
In
that case, the court was concerned with the interpretation of
section 98A(2) of the New Zealand Commerce Act, 1986, which

provides that a search warrant may be issued by specified judicial
officers if they are satisfied “that there are reasonable

grounds to believe that it is necessary” for the purpose of
determining whether a contravention of the Act has taken
or is
taking place. In approaching the interpretation of this provision,
Tipping J noted that there was another provision
in the statute
which provided an inquiry process for the discovery of documents.
86
He held that the word “necessary” in section 98A(2)
must be read in the light of this alternative procedure.
87
He also noted that section 21 of the New Zealand Bill of Rights
Act, 1990 protects citizens from “unreasonable searches”.
88
Tipping
J then held that the word “necessary” in section 98A(2)
involved four inter-related considerations:
“
First, there must be
evidence giving rise to at least a reasonable suspicion that a
contravention of the Act is taking or has
taken place. Secondly,
access to the documents or other materials the subject of the
proposed search, must be reasonably required
for the purpose of the
Commission’s investigation. In this respect the compass of
the warrant . . . must be no greater
than is reasonably required.
Thirdly, the proposed search warrant must have a realistic prospect
of bearing fruit as regards
its proposed subject-matter and
location. Fourthly, and this will often be the most problematic
factor, there must be no other
reasonable way of gaining access to
the subject-matter of the search.”
89
The
court went on to conclude, on the facts of that case, that the
affidavits that had supported the application for a search
warrant
had insufficiently disclosed the extent of co-operation by Tranz
Rail, the subject of the search, with the authorities
prior to the
issue of the search warrant.
90
Accordingly, the court concluded that the investigating
authorities had not established that the information they sought
could not be attained by less invasive means.
It
is clear that the test set out in
Tranz Rail
turns not only
on the specific wording of section 98A (“necessary”)
but also on section 21 of the New Zealand Bill
of Rights. I am not
persuaded that the same test should be adopted here. The language
of section 29(5) of our Act is different
to that contained in the
New Zealand statute and our constitutional text, too, is
different.
91
We
should start with a consideration of the wording of section 29(5)
itself.
92
That section provides that a warrant may only be issued if it
appears to the judicial officer issuing the warrant that there
are
reasonable grounds for believing that an object or document that
has a bearing or might have a bearing on the investigation
is
present on the premises in respect of which the search warrant is
sought. The investigators must place information on oath
before
the judicial officer setting out the nature of the section 28
investigation, asserting that there “exists a reasonable

suspicion that an offence” has been or is being committed or
attempted, and stating “the need, in regard to the

investigation, for a search and seizure”. It should be clear
that the language of section 29(5) simply requires investigators
to
set out the “need” for the search by indicating why
they think the warrant should be granted. That information
must be
taken into account by the judicial officer when deciding whether it
is appropriate to issue a search warrant.
93
The
real question is whether the state needs to go as far as
establishing that no other less invasive means will produce the

documents or items sought. As counsel for the state submitted, the
test proposed by the applicants will, in many cases, render
the
provisions of section 29 unworkable. When one considers that
section 29 is used only to investigate serious crimes, including

fraud and corruption, which bear heavy penalties of imprisonment,
there is a real possibility that a request under the section
28
summons procedure will not result in the furnishing of
incriminating items. Moreover, to ask the state to establish that

a summons in terms of section 28 would not result in the production
of the incriminating items would effectively require the
state to
prove something that could hardly ever be proved: that a subpoena
would not yield the evidence. The effect would
probably be that in
each case, the state might have to follow section 28 first and
then, and only if that failed, seek a search
warrant under section
29. Proceeding in such a manner would destroy any element of
surprise and would often, as found by the
Supreme Court of Appeal,
“altogether undermine an investigation”.
94
The interpretation preferred by Hurt J would inevitably provide
accused persons who are dishonest with an opportunity to cover

their tracks. This does not reflect an appropriate balance between
the constitutional imperative to prevent crime and the
duty to
respect, promote, protect and fulfil the rights in the Bill of
Rights.
Instead,
the judicial officer should determine whether it is appropriate to
issue a search warrant by asking the following question:
Is it
reasonable in the circumstances for the state to seek a search
warrant and not to employ other less invasive means?
This would
not require the state to prove that less invasive means will not
produce the document, something which, as I have
said above, may be
well nigh impossible to do. Rather, it will require a judicial
officer to consider whether there is an
appreciable risk, to be
judged objectively, that the state will not be able to obtain the
evidence by following a less invasive
route. This is not
dissimilar to the approach proposed by the majority in the Supreme
Court of Appeal which concluded that
section 29(5)(c) requires the
state to show that the material sought “cannot be expected in
the ordinary course to be
produced voluntarily.”
95
In answering this question, the judicial officer must take into
account the constitutional interests or rights that may be
limited
by the search and seizure.
96
A judicial officer would also be entitled to take into account the
following two considerations. First, it is generally not

improbable, given that serious crime which bears heavy penalties is
under investigation, that those implicated in the crime
might well
not produce incriminating evidence when requested to do so.
Second, if notice is given in circumstances where a
reasonable
suspicion of the commission of a crime exists (as there must be
before a search warrant may be obtained), and there
is a reasonable
suspicion that incriminating items may be found on particular
premises (again, as there must be), it may well
result in the
destruction or concealment of the incriminating materials.
In
my view, this approach takes into account not only the need to
protect constitutional rights, but also the practicalities
and
difficulties of law enforcement in the context of combating serious
and organised crime. The test I propose makes the
destruction or
concealment of this material more difficult and is a justifiable
limitation of the right to privacy. I cannot
accept that privacy
must be upheld even if that entails a real risk of the
disappearance of evidence in serious corruption
cases.
In
my opinion, in the present case, the state showed the need for a
search and seizure operation sufficiently to persuade the
judicial
officer that it was reasonable to issue the search warrant:
Obtaining the evidence was necessary because, while the
state was
already in possession of certain evidence, further payments from Mr
Shaik to Mr Zuma had to be investigated and various
new lines of
enquiry had to be followed. Moreover, the state had become aware
that Mr Hulley had been sent financial records
previously held by
Mr Shaik in his capacity as financial advisor to Mr Zuma. It being
the prerogative of the investigator
to determine the ambit of his
or her investigation, it is not for a judicial officer to say that
evidence should not be sought.
97
A judicial officer may only refuse an application to obtain
evidence by means of a search and seizure.
I
now turn to the question whether it is necessary for the state to
show that no other means are available to obtain the information

sought by search and seizure. It would be naïve to assume
that the response of the suspects would necessarily have been
to
yield the required information freely, or that they would do
nothing to cover their tracks between the date on which the

subpoena was received and the date on which it was to be complied
with. Indeed, the state’s prior experience with associates

of the suspects in this case suggested the opposite: Information
had not been forthcoming and comprehensive where it had been
sought
by way of section 28 of the Act. Furthermore, the crimes of which
Mr Shaik had been convicted, and in which Mr Zuma
and Thint have
been implicated, involve pre-meditation and dishonesty. These
factors must be taken into consideration. They
do not engender
confidence that those involved would respond honestly to a
subpoena. Accordingly, the state could not assume
with confidence
that the applicants would be fully truthful and honest in response
to a section 28 summons. There was at the
very least an
appreciable risk that they might not be, and that was sufficient to
establish the “need” for a section
29 search and
seizure. It is true that some element of dishonesty might
reasonably be expected of people who are reasonably
suspected to
have committed a crime involving dishonesty. Of course, it would
be unfair to say that all people who are suspected
of committing
crimes of dishonesty should not be trusted. I must emphasise,
however, that this judgment is to the effect that
there is an
appreciable risk that people who are suspected of the dishonest,
sophisticated and complex crimes involved here
will take measures
(which could be equally sophisticated and complex) to avoid
conviction.
I
have already discussed Mr Thétard’s failure to produce
the crucial diary in response to the section 28 summons,
despite
having produced his diaries for other years. His evidence in
relation to the encrypted fax – an important item
of evidence
in the conviction of Mr Shaik – was that it was simply a note
he had made which he thereafter crumpled and
threw into a
waste-paper basket. It was only later that the interrogation of
his secretary revealed that the encrypted fax
had in fact been sent
by him to his principals overseas. Mr Thétard subsequently
deposed to an affidavit confirming
that the encrypted fax had been
sent but on the condition that he himself would not be prosecuted.
That affidavit was used
in evidence in the trial of Mr Shaik.
Reliance
by Thint on the fact that the state had complimented Mr Moynot’s
“kind and affable co-operation”
also does not assist
its case at all.
98
This is because there is nothing in the statement to suggest that
Mr Moynot had actually given the prosecution all the information
at
his disposal even if it was incriminating in relation to his
employer, Thint. In the light of these facts, I am satisfied
that
there was an appreciable risk that a procedure, less invasive than
a search and seizure and dependent on the voluntary
co-operation of
Thint, would not have worked.
There
is also reason to believe that the full, voluntary co-operation of
Mr Zuma may not have been forthcoming. Early in the
investigation,
he denied attending a crucial meeting during March 2000, a meeting
which was evidenced by the encrypted fax
and also by Mr Thétard’s
2000 diary. According to the judgment in the trial of Mr Shaik, Mr
Zuma did attend that
meeting.
99
That, in my view, is sufficient to throw doubt on whether Mr Zuma
would have been fully frank and honest in response to a
section 28
procedure. Mr Zuma cannot be said to be guilty based on the
findings of the court that tried Mr Shaik. However,
the fact that
Mr Shaik has been convicted of various counts of corruption and
fraud relating to certain of his dealings with
Mr Zuma would, in
the mind of the prosecutor and the judicial officer issuing the
warrant, raise doubt as to the veracity of
Mr Zuma’s denials.
There must at the very least be a real risk that a person who is
suspected to have been involved
in corruption and who is, on
reasonable grounds, believed to have provided false information in
response to questions by the
state, would not preserve the
integrity of incriminating documents if he knew that the documents
were being sought.
For all these reasons, it cannot be said that when Ngoepe JP
exercised his discretion to issue the warrants in respect of
Thint
and Mr Zuma he did not do so judicially, or did so on a wrong
appreciation of the facts or the law. My view, accordingly,
is
that the contention of Thint and Mr Zuma on the ground of “need”
must fail. I shall deal with the question
whether there was a need
for a search of Mr Hulley’s offices later in this judgment.
100
Did
Mr Du Plooy’s affidavit have to deal expressly with every
class of document referred to in the search warrants?
It
was pointed out on behalf of Thint that the warrants authorised the
seizure not only of material concerning dealings between
Thint and
Mr Zuma, but also of material concerning dealings involving other
persons or entities not mentioned at all in Mr
Du Plooy’s
affidavit. During oral argument, Thint submitted that its warrant
was invalid because it allowed the seizure
of material concerning
persons or entities that were not mentioned in the affidavit. I
cannot agree. It is evident from the
terms in which the alleged
crimes were described in Mr Du Plooy’s affidavit that they
were sufficiently wide to include
persons or entities not mentioned
in the affidavit itself. Ngoepe JP had before him the affidavit of
Mr Du Plooy as well as
the draft warrants, and would have known
that documents concerning the persons and entities mentioned in
them could be material
to the alleged crimes. In the
circumstances, to require each and every person or entity mentioned
in the warrants to be mentioned
in the affidavit in support of the
search and seizure application would be over-technical. This
ground, too, cannot be upheld.
Were
the terms of the warrants valid?
The
next set of arguments advanced by Thint, Mr Hulley and Mr Zuma
concern the legal validity of the search warrants, considered
on
their face at the time of their issue by Ngoepe JP. Their central
submission is, in essence, that the warrants were unduly
vague and
overbroad in that they did not sufficiently circumscribe the
searches they authorised and, therefore, in effect authorised
too
broad a search of the various premises. They argue that the scope
of the searches was not defined with sufficient particularity
to
render the warrants intelligible to the searched persons. The
warrants, so the argument goes, should have specified exactly
what
the alleged offences were, as well as where, when and by whom they
were suspected to have been committed.
It
is my view that the warrants’ validity must be assessed both
in the light of the common-law principle laid down in
Powell
that “[a] warrant must convey intelligibly to both searcher
and searched the ambit of the search it authorises”,
101
and in the light of the requirements of section 29 of the Act,
interpreted so as to promote the spirit, purport and objects
of the
Bill of Rights,
102
taking into account the relevant constitutional principles.
103
Given that the parties accept that the applicable legislative
provisions pass constitutional muster, we are restricted to
what
they are reasonably capable of meaning.
104
We therefore should respect, within constitutional limits, the
fact that the words of section 29 of the Act reflect how the

legislature has chosen to balance the competing interests involved.
The starting point must be the statutory provisions and
I now turn
to interpret them.
The
relevant provisions of section 29 of the Act
105
The
following observations are appropriate in relation to the
empowering provisions of section 29 of the Act. The first is
that
it appears from the wording of section 29(1) that investigators are
given extremely wide powers of search and seizure.
An investigator
may look for, examine, copy, or seize any item found on or in the
premises “which has a bearing or might
have a bearing on the
investigation in question”. Taken literally, this is an
extraordinarily broad power. It seems
to suggest that anything
whatsoever (whether a document, photograph, email or piece of
jewellery, for example), which may be
said merely to be
possibly
relevant to the investigation, may be examined and seized, and that
only items that definitely have no bearing on the investigation
in
question may not. This literal approach would go so far as to
suggest that anything which has not yet been examined by
an
investigator necessarily falls into the category of an item that
“might have a bearing”. This, in turn, seems
to imply
that section 29(1) itself authorises a complete examination of
every item on or in the premises in question in order
to see
whether it “might have a bearing”.
This
approach to section 29(1) is overly literal. Granting such an
unbounded power would seemingly authorise an unlimited search,

which would be inimical to the constitutional right to privacy.
The better interpretation, in my view, is to recognise that
the
empowering provisions of section 29(1) are qualified by section
29(2), which provides that any search operation in terms
of section
29 shall be conducted with strict regard to decency and order,
including the searched person’s fundamental
rights to
dignity, freedom and security of the person, and personal privacy.
All investigators bear a legal duty, when they
execute a search and
seizure warrant, to treat any persons present on the searched
premises with the respect that their constitutional
rights require.
It is my view, furthermore, that investigators should keep this
duty in mind even when no one happens to be
present at the searched
premises at the time of the search.
The
question thus arises how the extremely wide powers granted by
section 29(1) should be reconciled with the equally important
duty
to have strict regard to decency, order, dignity, freedom of the
person, and privacy as imposed by section 29(2). This
tension
reflects the need to strike a balance between the privacy and other
personal interests of individuals on the one hand
and the public
interest in the fight against crime on the other, both of which are
relevant constitutional principles. Before
I explain how that
balance must be struck, however, three considerations must be kept
in mind.
First,
it must be emphasised that the right to apply for warrants for
search and seizure in terms of the Act is a special power
entrusted
to a small number of senior officials in the National Prosecuting
Authority and is for the investigation of serious
crimes, including
organised crime.
106
Accordingly, the balance must be struck in a way which renders
these powers effective for the purposes they have been designed
to
serve, namely, the investigation and prosecution of serious and
complex crime.
Second,
it is also important that an investigator is authorised to request
information about any item on the searched premises
from persons
present.
107
It is possible that these enquiries may help the investigator to
find the relevant items more quickly, or persuade the investigator

not to examine or seize a particular item for the reason that it
has no bearing on the investigation in question. This is
one way
in which the execution of a search warrant may be kept within
acceptable bounds.
Third,
however, it should be noted that a section 29 warrant authorises
the investigator to act unilaterally in executing the
search and
seizure operation. This flows from section 29(7) of the Act, which
authorises the use of force where necessary,
and from section
29(12), which provides that it is an offence to obstruct a search
or to fail to answer questions asked in
terms of subsection (1).
While a searched person may in certain cases collaborate and aid
the investigator, as in fact was
the case during the search of Mr
Hulley’s offices, the legislation envisages a unilateral
exercise of power that is not
dependent on such collaboration.
These,
then, are the considerations to be taken into account in
determining how a proper balance should be struck between the
need
to combat serious crimes and the obligation to respect privacy and
dignity in the context of a search and seizure operation
in terms
of section 29. Investigators should always have a clear idea, by
virtue of their knowledge of the scope of the investigation
and the
terms of the search warrant, of what kinds or classes of items
might have a bearing on the investigation. Investigators
must have
a reason to believe that an item might have a bearing on their
investigation. Concomitantly, they should also have
a fair idea of
what kinds of items will be entirely irrelevant to that
investigation. Therefore they should, at the very least,
always
limit their search to avoid examining the latter classes of items.
They are never entitled simply to search through
everything present
in the hope that something relevant might be found.
This,
however, does not mean that investigators must always know in
advance exactly what they are likely to be able to examine
or
seize. If, during the course of a search, they come across an
unforeseen item, they will have to exercise their judgement
about
whether it might have a bearing on the investigation, taking into
account their duty to respect the privacy, dignity
and freedom of
the persons searched. It would often be appropriate for them to
request information about the item from searched
persons to aid
that judgement, but they are not obliged to do so nor are they
obliged to believe the answer given. If an investigator,
having
considered all the relevant factors, has no reason to believe that
the item might have a bearing on the investigation,
he or she
should refrain from examining or seizing the item.
This
approach, in a nutshell, may be described as follows: Investigators
should restrict their search, examination, and seizure
to those
classes of items that they have reason to believe might have a
bearing on the investigation in question. That reason
may flow
from prior knowledge of the investigation, or it may occur to an
investigator during the course of the search or emerge
during a
conversation with persons at the searched premises, but a reason
they must have. That reason, moreover, should also
be sufficiently
plausible to outweigh the countervailing risk that the item might
be irrelevant to the investigation and examining
it would amount to
an invasion of privacy. Section 29 should not be interpreted to
authorise the examination or seizure of
an item in circumstances
where there is no reason to believe that it might have a bearing on
the investigation.
This
approach, in my view, gives appropriate recognition to the
conflicting constitutional principles at play and, at the same

time, respects the language of section 29 of the Act. I find
support for it in
Hyundai
,
108
in which it was held:
“
I do not think that the
use of the phrase ‘might have a bearing’ is anything
more than a recognition by the Legislature
that, in order to
determine whether a particular object has a bearing on a particular
investigation, it may be necessary to examine
it, make copies of or
take extracts from it or even seize such object.”
109
It
should also be remembered that section 29 provides for two
mechanisms to inform the searched person about the scope of the

authorised search: (i) section 29(9)(a) provides that a copy of the
warrant must be provided to the searched person, and (ii)
section
29(9)(b) requires the investigator to—
“
supply such person at
his or her request with particulars regarding his or her authority
to execute such a warrant.”
The
parties differ on the proper interpretation of this latter
provision. Counsel for Thint, Mr Zuma and Mr Hulley submit that
it
is concerned only with the delegation of authority to search to the
particular investigator in question. Counsel for the
respondents
submit that there was no reason to give the section such an overly
restricted meaning. Instead, he argued, the
phrase “particulars
regarding his or her authority to execute such a warrant”
should be understood in accordance
with its natural, broad meaning
to include particulars of the
scope
of that authority.
It
is my view that the latter interpretation is preferable, when the
provision is read through the prism of the Bill of Rights.

Interpreted in this way, section 29(9)(b) would place a duty on the
investigator to answer questions about the scope of the
authorised
search that a searched person may wish to ask. This would enable
searched persons who cannot read or who cannot
understand complex
legal language to gain some idea of the ambit of the search to
which they are subjected. This interpretation,
furthermore, is
bolstered by the duty imposed on investigators by section 29(2) to
execute searches with strict regard to decency,
order, dignity,
freedom and privacy.
The
implication of this approach is that a searched person who wishes
to understand more about the scope of the search is not
dependent
solely on the terms of the warrant alone; he or she may request
further particulars from the officials carrying out
the search in
terms of section 29(9)(b). This, in turn, suggests that warrants
need not always be drafted in terms that everyone
subjectively
understands, nor need they necessarily define the scope of the
search in an absolutely exhaustive or perfect way.
The
common-law principle of intelligibility
I
have already set out the various common law principles that are
relevant to determining whether a search warrant is lawful.
110
The most relevant principle is: “A warrant must convey
intelligibly to both searcher and searched the ambit of the search

it authorises.”
111
Thus stated, this intelligibility principle lacks precision. It
therefore falls to this Court to give it more concrete content
and
to determine what it requires, specifically when it is applied to
section 29 warrants.
112
As this constitutes a development of the common-law, the content
we give it must promote the spirit, purport and objects of
the Bill
of Rights.
113
The same constitutional principles and values discussed in the
context of interpreting section 29 are relevant to this task.
The
test to be satisfied
The
question arises: How should it be determined whether a document is
intelligible? I do not think that
Powell
lays down a
subjective test for a warrant’s intelligibility, which would
mean that the lawfulness of a warrant will depend
on the
understanding of the person present at the premises when it is
executed. This approach would effectively require every
warrant to
be perfectly tailored so that any person searched would, in the
light of his or her own subjective mental capabilities
and
education, have a complete understanding of the scope of the
search. The principle in
Powell
does not establish this
requirement either explicitly or by implication. Such a
requirement would be practically unworkable
and would scupper the
fight against serious and organised crime, because it would be
practically impossible to prepare every
warrant relating to complex
offences and circumstances in a way that would make it
understandable, in all its detail, to every
person who may be
searched.
Take
this case for example. The warrants before this Court authorise a
search and seizure in relation to an investigation into
corruption
in contravention of the Corruption Act 94 of 1992,
114
fraud, money laundering in contravention of the
Prevention of
Organised Crime Act 121 of 1998
and/or tax offences in
contravention of the Income Tax Act 58 of 1962. The offences which
fall into these classes are obviously
very complex.
115
Accordingly,
whether a section 29 warrant is intelligible must be tested
objectively. In my view, these warrants must be “reasonably

intelligible”, in the sense that they are reasonably capable
of being understood by the reasonably well-informed person
who
understands the relevant empowering legislation and the nature of
the offences under investigation.
It
must be emphasised that where this test is satisfied – that
is, where a warrant is reasonably intelligible in the sense

described above – that will not necessarily mean that both
the searcher and the searched will always agree on whether
or not
certain items fall within the ambit of the authorised search.
There might still be differences of opinion about whether
or not a
particular item is covered. My view is that the potential for such
disagreements does not necessarily indicate that
a warrant is
unduly vague or overbroad. It would be impossible always to expect
unanimity as to precisely which items fall
within the terms of a
search warrant.
It
would also be unrealistic, however adequately represented the
searched person might be at the time, to expect differences
of
opinion to be resolved while the search is taking place. The Act
empowers investigators to execute the operation unilaterally,
thus
investigators are entitled to decide whether to examine or seize
any particular item without the consent of the searched
person.
Differences of opinion may, in the end, have to be resolved by a
court. They do not necessarily render the warrant
unduly vague or
overbroad.
Indeed,
the more complex the offence, the more likely it is that there may
be reasonable differences of opinion over what is
covered by a
warrant and what is not. And, just as it is unrealistic to expect
all disagreements to be resolved during a search,
it is equally
unrealistic to expect the terms of a warrant, possibly supplemented
by the investigator’s explanations
in terms of section
29(9)(b), to place a searched lay person in a position to determine
with certainty exactly which items
on or in the premises may be
seized and which may not.
Sources
of information external to the warrant
The
final question to be answered before I consider the validity of the
warrants themselves is whether and for what purpose
it is legally
permissible to travel outside the terms of a section 29 warrant.
It should be recalled that the majority of
the Supreme Court of
Appeal held that whether the warrants were intelligible could
legitimately be ascertained by reference
to external sources of
information such as Mr Du Plooy’s affidavit, while the
minority held that they had to be intelligible
on their own terms,
without any outside aid.
Here
an important distinction must be drawn in relation to the purposes
for which one might consider sources of information
external to the
warrant. An investigator or court or any other person could
conceivably consider sources beyond the warrant
in order to
determine its general ambit. That, in my view, is impermissible. A
section 29 warrant should state at least the
following, in a manner
that is reasonably intelligible without recourse to external
sources of information: the statutory provision
in terms whereof it
is issued; to whom it is addressed; the powers it confers upon the
addressee; the suspected offences that
are under investigation; the
premises to be searched; and the classes of items that are
reasonably suspected to be on or in
that premises. It may therefore
be said that the warrant should itself define the scope of the
investigation and authorised
search in a reasonably intelligible
manner.
It
is quite different, however, where the purpose of considering
sources of information external to the warrant is to determine

whether a particular item is relevant, or possibly relevant, to the
investigation in question, and therefore may legitimately
be
examined, copied or seized under the warrant’s authority.
This is not a broad question about the scope of the investigation

or authorised search considered abstractly, but rather a concrete
question of application about whether a particular item in
fact
might have a bearing on that investigation. My view is that it is
permissible to travel outside the warrant for that
purpose.
Indeed, it seems very likely that every small item of knowledge
attained by an investigator would be relevant to
deciding whether
an item might have a bearing on the investigation. Whether, for
example, a particular letter or financial
record is relevant to an
investigation may depend on a host of factors beyond the terms of a
warrant, including what other
relevant letters and financial
records state. Therefore, it seems to me that it would in most
cases, where complex criminal
offences are involved, not be
possible to prepare a warrant in such a way that the relevance or
irrelevance to the investigation
of any particular item found in
the searched premises could be determined without doubt by the
searched party having regard
to the terms of the warrant alone. I
do not understand the judgment in
Powell
to have laid down
such a restrictive rule.
There
are other reasons for this conclusion. First, it seems to me that
the only possible reason to impose this restrictive
requirement
would be strongly to encourage searched persons taking steps
themselves to protect their privacy while the search
is being
carried out. However, it is unnecessary for steps to be taken to
protect the privacy of searched persons where the
scope of a search
is reasonably intelligible at the time the warrant is issued, and a
searched person may enforce his or her
privacy rights in a court at
a later stage. It is also unnecessary given that a searched person
is entitled to request particulars
of the scope of the authorised
search in terms of section 29(9)(b). In addition, it may be
dangerous to encourage intervention
by searched persons where the
state is empowered to act unilaterally and to use force where
necessary.
Second,
the requirement may frustrate the purpose of the Act, which is to
facilitate the investigation and prosecution of serious
and complex
crime, because it would impose a burden on the state in every such
case to incorporate into the warrant a comprehensive
and possibly
lengthy description of the investigation. An extremely lengthy
search warrant will not be of any assistance to
a searched person.
Applying
the above principles to the warrants
Having
set out and explained the relevant legislative provisions and
common-law principles, I am in a position to apply these
to the
warrants now before us. We must ask whether the warrants,
considered on their face at the time of their issue, are
reasonably
capable of being understood by the reasonably well-informed person
who knows and appreciates the relevant empowering
legislation and
the nature of the offences under investigation. For the reasons
that follow, my judgement is that, when assessed
in their
legislative and investigative context, the warrants were indeed
reasonably intelligible and thus lawful.
It
must be stated at the outset that, when the operative part of each
warrant is read with its preamble and annexure A,
116
it is clear that the warrants authorised only searches for and
seizures of documents that meet two requirements. The first
is
that the document must fall within one of the classes of documents
and records listed in annexure A. The second is that
the document
must be one which has a bearing or might have a bearing on the
investigation. Only items which meet both these
requirements may
be seized under the warrants. I shall consider each condition in
turn.
As
far as the first requirement is concerned, the limiting effect of
annexure A ensures that the warrants draw narrower boundaries
than
those which would have been permitted by the Act itself. All the
paragraphs in annexure A, with the exception of the
so-called
catch-all paragraphs to which I return below, specify a particular
class of document or computer record which the
prosecution
considered, in view of their intimate knowledge of the case, to
have at least a possible bearing on the investigation.
Many of
these detailed descriptions also identify the persons and entities
allegedly involved in the offences, and describe
broadly what those
parties are accused of having done. The warrants clearly fall
within the bounds of the Act, as they limit
the scope of the
operation to these classes of documents.
Furthermore,
all the warrants delineate searches that are narrower in scope than
those which the Act would have permitted, in
at least one further
respect. The Act permits the search for and seizure of any object,
whereas the warrants apply only to
any document or computer record.
This means, for example, that were there to be an expensive
painting on the searched premises,
which an investigator might
suspect was bought using the proceeds of corruption, he or she
could not seize it under the warrant’s
authority.
The
second limiting requirement is that it must be established that
there is reason to believe that documents or computer records
that
are the object of the search have “a bearing or might have a
bearing” on the investigation. This limitation
tracks the
language of the Act itself. The investigators were not authorised
to search for, examine, copy or seize anything
that had no possible
connection to the investigation. Clearly, therefore, the manner in
which this requirement delineates
the scope of the authorised
search depends crucially on the ambit of the investigation itself:
One needs to know the boundaries
of the investigation in order to
determine the boundaries of the authorised search and seizure
operation.
The
preamble to the warrants states that the nature of the criminal
investigation appears from the information placed on oath
before
the judge who issued the warrant. The investigation arises, the
warrants state, from the reasonable belief that certain
offences
have been committed or that attempts have been made to commit them.
The suspected offences are listed as corruption
in contravention
of Act 94 of 1992, fraud, money laundering in contravention of Act
121 of 1998 and tax offences in contravention
of Act 58 of 1962.
This
broad description of the scope of the investigation was, in my
judgement, sufficient to satisfy the objective test of reasonable

intelligibility. It would give any reasonably well-informed
person, who had knowledge of the Act and the relevant classes
of
offences, a fair idea of the ambit of the authorised search. A
searched person confronted with a warrant would then be
able to
request further particulars from the investigators about the scope
of their authority in terms of section 29(9)(b),
and would be
placed in a position to protest effectively against the search for
and seizure of items clearly irrelevant to
the investigation in
question.
Moreover,
in the context of the facts of this case, I can see no reason why
the prosecution should have been obliged to provide
further details
as to exactly who was suspected of having committed the offences,
as well as where and when they were suspected
to have been
committed. If the state is always required to provide these
details in the warrant itself, that may undermine
the success of
the investigation where a suspect is in fact guilty and
unnecessarily damage the reputation of a suspect who
is in fact
innocent.
117
Furthermore, in complex cases involving offences such as fraud and
corruption, the investigators may not, at the time they
apply for
the warrants to be issued, have knowledge of all the particulars of
the suspected crime and thus may not be in a
position to provide
all such details in a warrant.
In
addition, if there had been any concrete and enduring dispute about
whether the examination or seizure of a particular document
or
computer record was unauthorised, a court would have been able to
settle the issue by having regard to the content of any
document or
record identified as having been improperly seized by the
applicants in the light of the search warrant. The applicants
were
provided with a copy of Mr Du Plooy’s affidavit the day after
the search and have since had access to all items
that were seized.
They therefore have been in a position since 2006 to complain that
any particular seized item fell beyond
the objective scope of the
search, but they have not done so. That, after all, is the purpose
of precision in warrants: to
protect against seizure of items
irrelevant to the investigation. Nevertheless, there has been no
specific suggestion that
any improper seizure has taken place.
That the applicants have chosen not to point to any concrete harm
lends support to my
conclusion that the warrants are reasonably
intelligible.
I
should also note that the warrants now before this Court are
distinguishable in two important respects from the warrant that
was
invalidated in
Powell
.
118
First, in that case, the warrant made no reference to any criminal
offences at all, whereas the warrants in this case refer
to four
classes of offences. For this reason, the warrant in
Powell
purported to confer powers the conferral of which could not be
authorised under the Act. Second, the terms of the warrant
in
Powell
authorised the seizure of items that were completely
unrelated to the investigation in question,
119
whereas the warrants in this case are limited throughout by the
requirement that, to be seized, documents and computer records

either bear or might bear on the investigation.
In
the light of these considerations, I conclude that the warrants in
question were neither too vague nor too broad. Instead,
considered
on their face at the time of their issue, they were reasonably
intelligible to both the searcher and searched.
They were
reasonably capable of being understood by the reasonably
well-informed person, who appreciated the legislation and
nature of
the offences involved. The warrant authorised the search and
seizure of all documentation and computer records that
might have
had a bearing on the investigation of the four classes of offences
stipulated therein, regardless of when they may
have been
committed. Finally, the applicants have not pointed to any
specific seized item that should not have been seized,
despite
their knowing since 2006 which items were seized.
I
now turn to consider three peripheral attacks on the legal validity
of the terms of the warrants.
The
catch-all paragraphs
The
only difference between the so-called catch-all paragraphs and
other paragraphs in annexure A of the warrants is that, while
the
other paragraphs all refer to a particular class of documents, the
catch-all paragraphs do not. Instead, they in effect
cover any
document, of whatever nature or content, that either has or might
have a bearing on the investigation.
I
do not think that these catch-all paragraphs are overbroad or
unduly vague. Taking into account the proper approach to executing

section 29 search warrants that I set out above,
120
I do not think that these paragraphs present a significant danger
to searched persons by virtue of their breadth. There may
well
have been documentation which might have had a bearing on the
investigation of the offences mentioned that fell into a
category
of documents not covered by any of the other paragraphs of annexure
A and which the investigators had not foreseen.
It is unreasonable
to expect investigators to specify in advance every possible class
of item relevant to the investigation
that may be found during a
search. On the contrary, if during a search the investigator comes
across an unforeseen item that
he or she has reason to believe is
relevant, he or she may examine, copy or seize it in accordance
with the terms of the warrant
and the Act. I have already
explained in some detail why allowing such seizures will not amount
to authorising an unbounded
or limitless search.
121
I
consider below
122
the applicants’ further arguments that the catch-all
paragraph in the context of the search of the offices of Mr Hulley,

Mr Zuma’s attorney, took on a particularly sinister
character, and that it could not be severed from the relevant

warrant because the ex post facto severance of defective portions
of warrants is now impermissible under the Constitution.
Did
the prosecution adopt a “one size fits all” approach?
Thint
argues that the prosecution merely adopted a “one size fits
all” approach to the text of the various warrants
and thereby
failed to tailor them sufficiently to the individual circumstances
of the applicants. There is no merit in this
submission. While
the warrants are very similar in some respects, they differ in
others. To the extent that the warrants
authorise the search for,
examination and seizure of the same classes of documents at the
premises of different persons, it
cannot be said that the
prosecution acted unreasonably or that the warrants authorised
invasions of privacy not connected with
the investigation.
Were
the warrants aimed at determining Mr Zuma’s defences?
Messrs
Zuma and Hulley complain further that paragraphs 9, 10 and 11 of
annexure A to the warrants are improper because they
relate to an
investigation of the defences that Mr Zuma might employ if charged.
The argument, as I understand it, is that
the state was acting
with an improper purpose to uncover Mr Zuma’s privileged
defences. These paragraphs authorised
the seizure of any kind of
documentation—
9. “relating to any
allegations of corruption in respect of the arms acquisition
process”;
10. which Mr Zuma and various
other people “would have compiled in reaction to reports
regarding the contents of the encrypted
fax”; and
11. which Mr Zuma and various
other people “would have compiled in reaction to the
prosecution and trial of Shaik and
his related companies.”
In
my view, there is also no merit in this submission. There is no
evidence to suggest that the state was acting with an improper

purpose. Quite obviously, in the light of the common-law right to
privilege and the statutory procedure relating thereto in
section
29(11) of the Act, the authorisation to examine and seize these
classes of documents could not lawfully have extended
to cover
privileged documents. The prosecution, moreover, was well aware
that it would have been unlawful to seize privileged
documents.
The terms of paragraphs 9, 10 and 11 of annexure A to the search
warrants could never be understood to permit the
seizure of
privileged material, and any argument to the contrary must be
rejected. However, there is nothing impermissible
in the state
seizing non-privileged material which fell within the categories
mentioned in paragraphs 9, 10 and 11. Indeed,
prosecuting
authorities must, subject to the protections conferred by
privilege, anticipate possible defences of accused persons
and
prepare their cases accordingly within the bounds of the law. I
therefore hold that these paragraphs are lawful.
Conclusion
concerning the lawfulness of the terms of the warrants
To
sum up, I conclude that our law requires that warrants are
reasonably intelligible and clear; the warrants in question were

indeed reasonably intelligible; they were not too broad in the
light of the broad empowering provisions of the Act; the catch-all

paragraphs were not unduly vague or overbroad; and paragraphs 9, 10
and 11 of annexure A of the warrants were lawful.
Were
the warrants worded or executed in a way that provided insufficient
protection for the applicants’ right to legal
professional
privilege?
The
applicants’ next set of submissions concerns their right to
legal professional privilege. They submit that the warrants
were
all unlawful for want of an explicit reference to the statutory
protection of privilege in terms of section 29(11) of
the Act or,
alternatively, that the applicants’ right to privilege
demanded at least that the officials executing the
warrant should
have drawn section 29(11) to the attention of the persons present
at the relevant properties. These arguments
were stressed as being
of particular weight in the context of a search of the offices of a
legal practitioner, as occurred
at Mr Hulley’s offices. In
the applicants’ view, such searches pose a far greater risk
that investigators and
prosecutors will have sight of privileged
material, and for that reason they demand greater protection.
Finally, Messrs Hulley
and Zuma argue that the prosecution team’s
refusal to seal and lodge with the registrar the items seized from
Mr Hulley’s
office after Mr Hulley initially requested this,
and after his subsequent claim by fax that “a certain
privilege”
attached to all those documents, amounted to an
unlawful disregard of section 29(11).
The
right to legal professional privilege
The applicants did not assert that the Constitution itself protects
legal professional privilege and I therefore do not need
to explore
that question now.
123
We are thus primarily concerned with the common-law right to legal
professional privilege, and with how that right is protected
by
section 29(11) of the Act. Again, because it is accepted by all
the parties to this case that the legislation and common-law

principles in question are consistent with the Constitution, the
applicants’ arguments must be assessed, in the first

instance, in the light of the applicable provisions of section 29
of the Act. Of course, both the common-law right and the
statutory
provisions must be dealt with in a way that complies with section
39(2) of the Constitution. I turn first to consider
the right to
privilege and then deal with section 29(11).
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.
124
The rationale of this right has changed over time.
125
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 clients. 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 Constitution, and for
that reason it is to be
taken very seriously indeed.
126
Accordingly, privileged materials may not be admitted as evidence
without consent.
127
Nor may they be seized under a search warrant.
128
They need not be disclosed during the discovery process.
129
The person in whom the right vests may not be obliged to testify
about the content of the privileged material.
130
It should, however, be emphasised that the common-law right to
legal professional privilege must be claimed by the right-holder
or
by the right-holder’s legal representative.
131
The right is not absolute; it may, depending upon the facts of a
specific case, be outweighed by countervailing considerations.
132
The
section 29(11) mechanism for settling claims of privilege
Section
29(11) is the statutory mechanism that the legislature has chosen
to deal with the right to legal professional privilege
(as well as
other claims of privilege) in the context of a search and seizure
operation under section 29.
133
It states, in sum, that if privilege is claimed in respect of an
item, and if the searching official nevertheless believes
that the
item is relevant and necessary for the investigation, it must be
taken to the office of the registrar of the High
Court so that a
court can decide whether or not it is indeed privileged. The
section, furthermore, appears to apply only “during
the
execution of a warrant or the conducting of a search in terms of
this section”.
Despite
this clear language, the parties disagreed as to whether section
29(11) had application after a search and seizure operation
has
come to an end. In this regard, the applicants contended that
section 29(11) should be interpreted so that the mechanism

continued to be available after the search was completed because,
in their view, an extended application would provide a greater

degree of protection for privileged material. The state submitted,
in contrast, that the better interpretation was that the

availability of the mechanism ceased as soon as the search was
completed, for two reasons. First, such an interpretation is
more
consistent with the ordinary meaning of the provision, which
expressly applies only “during the execution of a warrant
or
the conducting of a search in terms of this section”. But,
second, the state submitted that claims of privilege will
in fact
be equally, if not better, protected if section 29(11) is
interpreted to have no application after the search has ended.

This second argument seems counter-intuitive but, on reflection, I
am of the view that it is correct.
The
state’s contention is that the primary effect of section
29(11) is to provide a benefit to investigators and prosecuting

authorities. That is because, in essence, it enables a court to
determine quickly and finally whether an item is in fact privileged

in a way that protects the item against the risk of loss, damage or
destruction, potentially at the hands of the searched person.
The
mechanism, moreover, also ensures that claims of privilege made
incorrectly or in bad faith will almost always fail, because
the
state will have no reason not to refer the item to a court whenever
it believes the item might be relevant to the investigation.
The
situation is quite different, so the argument went, where the
section 29(11) mechanism is not available. The main consequence
is
that the state is denied the benefit of an efficient and objective
decision on privilege. Instead, where it is faced with
a claim
(whether correct and made in good faith or otherwise) that a
certain item is privileged in the context of a search
and seizure
operation in furtherance of a criminal investigation, the state
faces the difficult choice whether to seize the
item in question or
not. Choosing to seize the item runs the risk that it may, in
fact, be privileged, in which case the state
would have acted
unlawfully. The item would have to be returned to the searched
person, and any subsequent trial may be infected
with a degree of
unfairness contrary to section 35 of the Constitution. The
contrary choice not to seize the item, however,
would vindicate the
claim of privilege, whether or not it was correct and made in good
faith, but would also deny the state
the benefit of the item if it
was truly not privileged, while the risk of its loss, damage or
destruction would remain. In
such circumstances, the state is
placed between Scylla and Charybdis, whereas privilege remains
strongly protected because
either a privileged item will not be
seized, or its seizure will be unlawful and may render any
subsequent trial unfair. It
is conceivable, moreover, that the
state, by virtue of the risk of rendering the subsequent trial
unfair, will be dissuaded
from seizing certain items even if the
claim of privilege is incorrect or made in bad faith.
I
agree. The state suggests that a wide application of section
29(11) would be primarily of benefit only to the state, because
it
would ensure that non-privileged items would almost never slip
through the net. It follows that the applicants’ proposed

justification for departing from the clear language of section
29(11) and extending its application – namely, that such
an
interpretation would better protect privilege – is flawed and
must therefore be rejected. Accordingly, my view is
that the
application of the section 29(11) mechanism comes to an end with
the completion of the search.
A
reference to section 29(11) or some other mechanism beyond section
29(11)?
I
am now in a position to evaluate the various arguments concerning
privilege advanced by the applicants. The first was that
either
the warrants should have contained a reference to section 29(11) or
the officials should have mentioned that provision
to persons at
the searched premises. The state argued that the debate over
privilege was largely academic in that the applicants
have so far
failed to identify any specific document as privileged. However,
we are presently concerned only with the question
of whether the
Constitution required the warrants, or the investigators executing
the warrants, to refer specifically to section
29(11) of the Act.
The sufficiency of the applicants’ privilege claim has no
bearing on this analysis, so I do not address
it here.
Both
these claims need to be evaluated in the light of the preceding
analysis of section 29(11). I have found that the primary
purpose
of section 29(11) is to provide the state with a mechanism, where
privilege is claimed during a search, to have that
claim speedily
determined by a court, without the state running the risk of
attaching documents subsequently declared to be
privileged. The
effect of section 29(11), therefore, does not diminish the
protection given to privileged documents at common
law. Instead,
it provides a novel mechanism to determine claims of privilege
prior to a criminal trial, in a manner which,
if the claim
succeeds, will not result in the search being impugned; and if it
fails, will not deprive the state of ultimately
seizing the
document. It can be seen that the advantages of the mechanism are
largely for the state, and not for the person
claiming privilege,
and yet the common-law protections for privilege remain untouched.
A
final important consideration to bear in mind is that section
29(11) comes into operation whenever a claim of privilege is
made
during a search. The person claiming privilege does not need to
mention or indeed know of the existence of section 29(11).
All he
or she needs to do is assert to the investigators: You may not have
that item, it is privileged. As soon as such a
claim is made, the
investigator is bound to follow the section 29(11) procedure
(unless he or she decides to desist from seizing
the item). If the
searched person does not know or appreciate that items are
privileged, and therefore fails to claim the
privilege during the
search, he or she does not lose the right to claim subsequently the
common-law protections provided to
privileged items. The right to
object to the admissibility of privileged items will remain and the
matter will only be determined
when the state seeks to have the
items admitted in evidence.
Given
the purpose and effect of section 29(11), I cannot see that there
is any benefit to a person being searched in being notified
of its
provisions. Once a person claims privilege during a search,
section 29(11) will operate and a failure to follow the
procedure
it provides will be unlawful with all the attendant consequences.
If a person does not claim privilege during a
search because he or
she does not appreciate that the items seized are privileged, then
the ordinary common-law protection
of privileged documents will
persist and privilege may be claimed subsequently.
For
all these reasons, I conclude that it is not necessary for a
warrant to refer to section 29(11), nor is it necessary for

investigators to inform those being searched of the section 29(11)
mechanism. Both these arguments of the applicants must
fail.
Did
the search of Mr Hulley’s offices call for special
protection?
The search of Mr Hulley’s offices must be dealt with
separately because, in this instance, we are concerned with the

execution of a search and seizure warrant at the offices of an
attorney. The applicants assert that there is a greater risk
of
the discovery of items protected by legal professional privilege at
the offices of attorneys and therefore that such searches
require
special consideration. In this submission, they rely on the
Canadian case of
R v Lavallee, Rackel and Heintz
134
in which the Supreme Court of Canada had to consider the
constitutionality of section 488.1 of the Canadian Criminal Code.

That section provided a procedure for determining a claim of legal
professional privilege in respect of documents seized from
an
attorney’s offices under a search warrant. The applicants
argue that greater protection for legal professional privilege
was
similarly called for in this context, whether in the form of a
reference to section 29(11) in the warrant or some mention
of
section 29(11) on the part of the executing officials. They also
assert, for the same reason, that the relevant catch-all
paragraph
was especially unacceptable.
It
is undeniable that, where a search of an attorney’s offices
is undertaken in circumstances where his or her client
is under
investigation, such searches may raise a danger that items
protected by legal professional privilege will be discovered.
135
Of course, searching the home or office of a person under
investigation will also bear the risk of the discovery of
privileged
items, as it will be likely that any letters or
documents prepared for legal advice to that person will also have
been sent
to the person under investigation. But when attorneys’
offices are searched, there is the additional risk that the
privileged
documents of other clients of an attorney may be found.
I agree therefore that there is a greater risk of the invasion of

legal professional privilege when the search of attorneys’
offices is undertaken.
In
Lavallee
, the Supreme Court of Canada held by a six-three
majority that section 488.1
136
was unconstitutional in its entirety.
137
The precise provisions of section 488.1 are not of relevance to
our enquiry. What is of relevance, and indeed persuasive,
is the
reasoning in both judgments in
Lavallee
that emphasises the
importance of the protection for legal professional privilege.
138
Arbour J confirms that it is “a principle of fundamental
justice” within the meaning of section 7 of the Canadian

Charter of Rights and Freedoms.
139
I have no doubt that the importance of legal professional
privilege must not be overlooked by a judicial officer issuing a

search warrant. Beyond this proposition, however, I am not
persuaded that
Lavallee
has any further direct relevance.
140
In fact,
Lavallee
is distinguishable from the instant case
in that the attorney in that case had immediately claimed privilege
in respect of the
identified documents when the police arrived at
the firm.
The
questions to be answered in the current context are the following:
whether the state established that, in the circumstances,
it was
reasonable for the offices of Mr Hulley to be searched; whether
there was a need to search Mr Hulley’s offices;
whether
section 29(11) needed to be mentioned expressly in the warrant or
by the investigators executing the warrant; and lastly,
whether it
was appropriate to include the catch-all paragraph in annexure A to
the Hulley warrant.
In considering whether the state has shown that it was reasonable
to seek a search warrant to search Mr Hulley’s offices,
it
should be noted that it was clear from Mr Du Plooy’s
affidavit that the state sought only the documents forwarded
to Mr
Hulley by Mr Parsee. It is clear that the investigators did not
intend an unbounded search of Mr Hulley’s offices.
141
The purpose of the search was confined narrowly to the search for
and seizure of those records, which were previously held
by Mr
Shaik in his capacity as Mr Zuma’s financial advisor. These
documents formed the express subject matter of paragraph
1 of
annexure A of the relevant warrant. There was, of course, no
reason for anyone to think that those financial records
would
contain privileged information, because the letter from Mr Parsee
to the NDPP stated their contents: records held by
Mr Shaik as
financial advisor to Mr Zuma. Moreover, as has been stated above,
Mr Steynberg stated under oath that Mr Van Loggerenberg,
who led
the team that searched Mr Hulley’s offices, was specifically
instructed to seize only the documents delivered
by Mr Parsee and
not to search the office unless this was strictly necessary to
locate only those documents.
The
narrow scope of the search coupled with the fact that it was
unlikely that the documents to be seized were in fact privileged

meant that the ordinary anxieties concerning the seizure of
privileged materials which arise where attorneys’ offices
are
searched, did not arise here. In my view, it was not unreasonable
for the state to have sought a search warrant for this
narrow
purpose. Were a more invasive search to have been intended, as for
example occurred in respect of Ms Mahomed’s
offices,
142
the situation would have been quite different. I turn now to
consider the question whether there was a need, in terms of section

29(5)(c) of the Act, to search Mr Hulley’s offices.
The
need to search Mr Hulley’s offices
It
has been suggested that there was no need to search the office of
this attorney, and that there was no reason at all to suppose
that
he would have done anything but expressly comply with a section 28
subpoena. I cannot agree. Mr Hulley received the
documents as an
agent for Mr Zuma, because they belonged to Mr Zuma. In my view,
if Mr Hulley had received a subpoena in terms
of section 28, he
would have been within his rights to contact Mr Zuma and to say to
him that he had received a subpoena in
respect of the documents.
There is nothing in the Act that prevents Mr Hulley from making
this disclosure, nor would it have
been improper for Mr Hulley to
have done so. Had Mr Hulley not informed Mr Zuma about the
subpoena, Mr Zuma would in all probability
have had a valid
complaint of impropriety on the part of his attorney. In my view,
there was the real risk that, had Mr Hulley
told Mr Zuma that the
documents were sought by the prosecution by way of a subpoena, Mr
Zuma would have ensured that the documents
were placed in his
possession. After that, Mr Zuma could have done precisely what he
wished with them. The real risk that
a few crucial documents would
have been removed cannot be excluded.
The
protection of privilege during the search of Mr Hulley’s
offices
The
next question is whether the terms of the search warrant needed to
include an express reference to section 29(11). In my
view, the
applicants’ arguments relating to the need to mention section
29(11) in the warrant must fail for the same
reasons given in
paragraphs 186 to 195 above. The purpose of section 29(11) is to
provide an accelerated procedure for the
determination of claims of
privilege. That procedure comes into operation as soon as
privilege is claimed. The person claiming
privilege need know
nothing of its provisions. We can assume that attorneys are those
best placed to know which items are
the subject of legal
professional privilege and that they will therefore be in a
position to claim privilege. Once they claim
privilege, even if
they do not know of the provisions of section 29(11), the procedure
in section 29(11) must be followed.
I do not agree, therefore,
that it is necessary for the warrant to mention section 29(11), as
that mechanism will operate
as soon as privilege is claimed,
whether or not the person claiming privilege is aware of it. The
applicants’ argument
in this respect must fail.
I
now consider the manner in which the warrant was executed.
143
It appears that the state was well aware of the possible presence
of privileged materials and included a senior advocate in
the
investigating team to ensure that, if claims of privilege were
made, the procedure under section 29(11) would be followed.
This
reveals that the state was willing to take extra care in this
context and in fact did so. It should also be recalled
that,
although a search of an attorney’s office was envisaged, the
key terms of the warrant and the planned search were
strictly
confined to items that almost certainly were not privileged. It
follows that the risk ordinarily attendant on the
search of an
attorney’s office was lessened.
Furthermore,
it is common cause that a general search of Mr Hulley’s
office was in fact unnecessary and did not take place.
Instead,
the documents in question were located quickly, with the full
co-operation of Mr Hulley. No other documents were
examined or
seized. Therefore, the danger associated with the idea of a
general search of an attorney’s office simply
never arose on
the facts.
All
of these considerations point in favour of a finding that there was
no unlawfulness in the manner in which the search was
executed.
Nor am I persuaded that the investigators needed to draw Mr
Hulley’s attention to the provisions of section
29(11). Mr
Hulley can be assumed to have been aware of the common-law right to
legal professional privilege, including the
rule that such
privilege must be claimed. If he had claimed the privilege during
the search, section 29(11) would have come
into operation. But Mr
Hulley made no claim during the search. Instead, he co-operated
fully and gave up the two boxes containing
the financial records
without hesitation. My view is that the most plausible inference
to be drawn in those circumstances
is that Mr Hulley had no reason
at all to think that the documents contained privileged
information.
144
Moreover, the applicants have failed to identify a single seized
item as being privileged, despite the fact that Mr Hulley
made a
copy of the inventory of the documents on the day that they were
seized. They have therefore failed to establish any
actual
prejudice. Instead, the applicants base their claim solely on the
hypothetical ground that privileged documents
might
have
been seized.
In
the circumstances, I conclude that neither the absence of an
explicit reference to section 29(11) in the text of the search

warrant nor the manner of the subsequent execution of the warrant
was unlawful. I turn now to consider the final challenge
to the
terms of the warrant, which relates to the inclusion of the
catch-all paragraph.
The
catch-all paragraph in the warrant executed at Mr Hulley’s
offices
It
was submitted that the catch-all paragraph in annexure A of the
warrant executed at Mr Hulley’s offices was unlawful.
Its
full and indiscriminate execution in the offices of the attorney,
so the argument went, would have posed a great danger
to legal
professional privilege, particularly if no one had happened to be
present in Mr Hulley’s offices that morning.
I
agree. It cannot be denied that searches of attorneys’
offices pose a heightened risk concerning privileged material,
and
for that reason all such searches should be carried out with great
care and circumspection. The catch-all paragraph, however,

purported to authorise a wide-ranging search through Mr Hulley’s
documents, files and computer records. In my view,
it opened the
door too widely and provided insufficient direction to the
searchers and searched in the specific context of
the search of an
attorney’s office.
The
next question that arises is whether this particular catch-all
paragraph was severable from the warrant as a whole. It
will be
recalled that Hurt J held, in the Durban High Court, that ex post
facto
severance of a defective portion of a warrant was no
longer permissible because the authorities relied on by the state
in support
of severance pre-dated the Constitution
145
and constitutional considerations have since superseded the
considerations in favour of severance advanced in those cases.
146
In the Supreme Court of Appeal,
147
however, Farlam JA held in an
obiter dictum
in his minority
judgment that counsel for Messrs Zuma and Hulley correctly conceded
that Hurt J erred in this respect, in particular
because the case
relied on by Hurt J did not support his conclusion.
148
Counsel for the applicants did not press the argument against
severance before us.
I
agree with the observations of Farlam JA. I can think of no reason
in principle why the Constitution should be interpreted
to prohibit
absolutely the ex post facto striking down of a defective portion
of a warrant while upholding the remainder of
it. This is a
technique frequently used in respect of legislation found to be
unconstitutional and invalid in part only, which
seeks both to give
appropriate and effective relief to an aggrieved litigant and to
respect the proper role of legislative
and executive arms of
government.
149
It seems appropriate to sever an overbroad part of a warrant where
it is possible to separate that bad part from the rest
of the
warrant, and where that part was not in fact executed and therefore
no concrete harm resulted to the person searched.
150
In such circumstances, severance is the proportionate response;
declaring the entire warrant invalid would amount to using
a
sledgehammer to crack a nut. I refrain from commenting on whether
severance is ever appropriate where the impugned part
of the
warrant is executed to any degree. That is a distinguishable
question to be answered on another occasion.
Returning
to the circumstances of this case, the fact of the matter is that
this particular catch-all paragraph was not executed
at all during
the search of Mr Hulley’s offices. Nothing was examined or
seized under its apparent authority. Instead,
as I have set out
above,
151
only those documents sent by Mr Parsee to Mr Hulley, comprising
records that Mr Shaik previously held in his capacity as Mr
Zuma’s
financial advisor, were seized. It follows that, despite its
inclusion in the warrant, this catch-all paragraph
resulted in no
concrete harm to the applicants. In the circumstances, and given
that the paragraph constitutes a distinct
element that is clearly
separate from the remainder of annexures A and B and the
authorising part of the warrant itself, my
view is that the
appropriate remedy is to sever it.
Mr
Hulley’s subsequent claim of privilege
The
final issue that falls to be dealt with under the rubric of
privilege is the legal import of Mr Hulley’s claim, made
via
fax to Mr Steynberg the day after the search, that “a certain
privilege attaches to the entire body of documents
seized”.
This purported claim of privilege referred to the financial
records, sent by Mr Parsee to Mr Hulley, and seized
by Mr Van
Loggerenberg’s team during the search of Mr Hulley’s
offices. In my view, two considerations dispose
of this argument.
First,
for the reasons advanced above at some length,
152
it is my view that section 29(11) must be interpreted so that it
has no application after the completion of the search and
seizure
operation. It follows that, because Mr Hulley’s claim was
made a day after the relevant search and seizure operation,
the
state was under no statutory duty to place the financial records
with the registrar of the High Court. Instead, it was
entitled to
face its difficult choice: either to hold on to the documents and
risk trial unfairness if they truly are privileged,
or to return
the documents and risk their permanent loss or destruction. Of
course, the state could have attempted to negotiate
a compromise
solution, perhaps along the lines of the section 29(11) mechanism,
but it was not legally obliged to do so.
Second,
my view is that the claim of privilege was not a serious attempt
made in good faith and, frankly, rings hollow in the
context. Mr
Hulley has been tendered, and has had access to, copies of the
documents taken from his office but has not asserted
that any of
them were indeed privileged despite having had ample opportunity to
do so. To date, he has still not concretised
nor further explained
his imprecise claim of privilege. He has also not advanced a claim
that a specific privileged document
was seized. This all suggests
powerfully that the financial records were not in fact privileged,
and that the state’s
election not to indulge Mr Hulley’s
belated and puzzling claim was beyond reproach.
The
question of a preservation order
The
final question to be considered concerns the state’s
alternative submission that, should this Court decide that the

search and seizure operations were unlawful for any reason, the
appropriate remedy would be to grant a preservation order along
the
lines suggested by the minority judgment in the Supreme Court of
Appeal.
153
Such an order, the state contends, would be “just and
equitable” within the meaning of section 172(1)(b) of the

Constitution,
154
because it would recognise and balance all the constitutional
issues involved. The applicants initially resisted this
suggestion,
arguing that if this Court were to hold that the
warrants were invalid, and thus in violation of their right to
privacy in
terms of section 14 of the Constitution, this Court
should order the immediate return of the documents.
Because
I hold that the search and seizure operations were lawful, the
question of a preservation order need not, strictly speaking,
be
resolved in order to decide this appeal. Nevertheless, in view of
the fact that this question gave rise to significant
disagreement
amongst the judges of the Supreme Court of Appeal
155
and the fact that it has been argued before this Court, I consider
it in the interests of justice to make a few remarks to
give
guidance to litigants and courts in this regard.
In his minority judgment in
NDPP and Another v Mahomed
,
156
Ponnan JA held that the default remedy for an unlawful search and
seizure is the prompt return of all the items seized. As
authority
for this proposition he cited a case
157
concerned with section 31 of the Criminal Procedure Act,
158
which provides that the state is obliged to return seized items
that are not needed for the purposes of trial to the person
from
whom they were seized as long as it not unlawful for that person to
possess the items. It is not at all clear to me that
this case is
authority for the blanket common-law rule he asserts. Nor is it
clear that
Pullen NO and Another v Waja
159
(also cited by Ponnan JA in
Mahomed
) is authority for
that proposition, although it is cited as authority for it in
several textbooks.
160
In
Pullen
, the court held that seized books should be
returned to the person from whom they had been seized on the basis
that the books
were illegally seized and that—
“
even at the date of the
hearing of this appeal no charge had been preferred against the
respondent in regard to which the books
might be required by the
Crown as evidence.”
161
One
case cited by Ponnan JA did result in the unqualified return of
seized items.
162
We do not need to decide the question of the default common-law
remedy today. The question I wish to consider is what the
relief
should be when a court concludes that a search warrant issued under
section 29 was unlawful.
Here,
my view is that a preservation order, such as that proposed by the
minority in the Supreme Court of Appeal in the present
matter and
that handed down on the same day by the majority of the Supreme
Court of Appeal in
Mahomed
,
163
will frequently be a just and equitable remedy. To explain why, I
shall first address the question whether a preservation
order is
ever a competent order at all, and then consider why preserving the
seized items would be appropriate in this context.
The
judges in the Supreme Court of Appeal differed as to whether a
preservation order is a competent order at all. Farlam JA
thought
that it fell under the court’s power to grant “just and
equitable” remedies in terms of section 172(1)(b)
of the
Constitution.
164
Nugent JA disagreed. I am of the view that section 172(1)(b) of
the Constitution does permit a preservation order to be made.
That
section explicitly states that a court deciding a constitutional
matter may make any order that is just and equitable
including an
order “suspending the declaration of invalidity for any
period and on any conditions, to allow the competent
authority to
correct the defect.” This section thus expressly
contemplates an ongoing violation of a right pending rectification

by a competent authority. It should also be noted that section
172(1)(a) is not limited to declarations of invalidity in respect

of laws but also includes declarations of invalidity in respect of
conduct. From the start, this Court has recognised that
at times
there will be considerations of justice and equity which outweigh
the need to give immediate relief for the breach
of a
constitutional right.
165
A preservation order raises similar questions of balancing the
need to protect the right to privacy on the one hand, with
other
important public considerations on the other.
Nor
am I persuaded by Nugent JA’s reference to Canadian
jurisprudence. First, I note that section 24 of the Canadian

Charter
166
is formulated in similar terms to section 35(5) of our
Constitution,
167
giving a trial court a discretion to determine the admissibility of
unlawfully obtained evidence. On my reading of
Re Commodore
Business Machines Ltd and Director of Investigation and Research et
al
,
168
a decision relied upon by Nugent JA,
169
the court did not assert that Canadian courts do not have a
discretion to preserve copies of documents that had been unlawfully

seized. On the contrary, although in that case the authorisation
to search was declared invalid, the Crown was held entitled
to
retain copies of documents seized that were needed for the
prosecution. Moreover, section 490 of the Canadian Criminal
Code
specifically authorises courts to make preservation orders (called
“detention orders”).
170
Turning
now to consider the appropriateness of preservation orders in the
present context, I have stated why preliminary litigation
on search
warrants is generally undesirable.
171
It has the potential to delay the commencement of trials. This
may be particularly damaging in the case of serious and complex

economic crime when trials are often lengthy. Furthermore, it is
highly desirable that the trial court be the one primarily

concerned with ensuring trial fairness in general and with the
admissibility of evidence in particular by applying its discretion

in terms of section 35(5) of the Constitution, which provides:
“
Evidence obtained in a
manner that violates any right in the Bill of Rights must be
excluded if the admission of that evidence
would render the trial
unfair or otherwise be detrimental to the administration of
justice.”
That is the way in which the Constitution strikes the balance
amongst the various competing interests that are involved in

deciding whether or not to admit unlawfully obtained evidence. It
is the trial court that is empowered by section 35(5) of
the
Constitution to consider these questions in the first instance.
172
This is especially important in cases of serious and complex
economic crimes which frequently require close scrutiny of

mountains of facts.
It
follows accordingly that the ordinary rule should be that when a
court finds a section 29 warrant to be unlawful, it will
preserve
the evidence so that the trial court can apply its section 35(5)
discretion to the question of whether the evidence
should be
admitted or not. It seems to me that it is only if an applicant
can identify specific items the seizure of which
constitutes a
serious breach of privacy that affects the inner core of the
personal or intimate sphere,
173
or where there has been particularly egregious conduct in the
execution of the warrant, that a preservation order should not
be
granted.
The
above approach to warrants issued under section 29 of the Act is
consistent with our jurisprudence on granting constitutional

remedies. Although the point of departure is that a victim of a
constitutional violation is entitled to effective relief,
a court
must also take into account other relevant circumstances, including
the interests of others and the public interest,
174
which in turn includes the public interest in the prosecution of
serious crime.
175
I emphasise that such an order may not be appropriate if an
applicant can point to a particular item the seizure of which

constitutes a serious violation of privacy. Absent such an article
or evidence of some other egregious conduct in the execution
of the
warrant, an order of preservation cannot be assumed to give rise to
a serious ongoing violation of the constitutional
right to privacy.
The granting of preservation orders will also facilitate the
protection of another important constitutional
right, in that it
will discourage the proliferation of unnecessary and delaying
preliminary litigation thereby assisting in
the conclusion of
criminal trials without unreasonable delay. This is consistent
with the requirements of section 35(3) of
the Constitution.
Conclusion
To
sum up, therefore, I hold that the catch-all paragraph in the
warrant executed at Mr Hulley’s offices was unlawful
but
severable. Other than that, all the applicants’ challenges
to the search and seizure operation executed at various
premises
connected to them must fail. It is my judgement that the
application for the warrants, the terms of the warrants
themselves,
and their subsequent execution were lawful, in view of the
applicable common-law, statutory and constitutional
principles.
For that reason, although the applications for leave to appeal are
granted, the appeals themselves are refused
and the judgments of
the Supreme Court of Appeal appealed against are confirmed.
Costs
The
applicants have raised important constitutional issues. In line
with our ordinary approach, this is a case in which no
order as to
costs in this Court should be made.
Order
It
is ordered that:
(a) The
applications for leave to appeal are granted.
(b) Paragraph
2 of annexure A of the warrant executed at the offices of Mr Hulley
is declared unlawful and is severed from that
warrant.
(c) In
all other respects, the appeals are refused and the orders made by
the Supreme Court of Appeal are upheld.
(d) There
is no order as to costs in this Court.
O’Regan
ADCJ, Jafta AJ, Kroon AJ, Madala J, Mokgoro J, Nkabinde J, Skweyiya
J, Van der Westhuizen J and Yacoob J concur
in the judgment of
Langa CJ.
NGCOBO J:
Introduction
In
Hyundai
1
we considered the constitutionality of the provisions of
subsection 29(5) of the
National Prosecuting Authority Act (the
NPA
Act)
2
in the context of a preparatory investigation. On that occasion,
we found that the subsection limits the right to privacy
that is
guaranteed in section 14 of the Constitution. However, we held
that the subsection provides sufficient safeguards
against
unwarranted invasion of the right to privacy.
3
We therefore upheld the constitutionality of the subsection.
4
These
two cases present different, though equally important questions
important questions concerning: first, the circumstances
under
which the investigating authority can resort to a search and
seizure warrant for the purposes of conducting an investigation

under the NPA Act and; second, the contents of search and seizure
warrants. The importance of these questions lies in the
fact that
the search and seizure warrant is a drastic measure which
constitutes an invasion of a person’s right to privacy
and
right to dignity. The search and seizure warrant can be a useful
investigative tool to combat organised crime, in particular

corruption However, unless it is used only when there is a need for
it, it may be abused, and this would result in an unwarranted

invasion of privacy and dignity.
These
cases require us, in particular, to determine two issues: firstly,
whether on the facts and circumstances of these cases
there was a
need for the state to resort to this drastic procedure. Secondly,
a somewhat related but equally important issue
concerns the duty of
the state to disclose all material facts when it applies for a
search and seizure warrant. This duty
arises because applications
of this nature are invariably made ex parte
and without the
knowledge of the person who is the subject of the intended search.
The person concerned is therefore unable
to present the facts
showing why a search and seizure warrant should not be issued.
These
are difficult questions. They are difficult because they require
us to strike a very delicate balance between, on the
one hand, the
need to fight crime, in particular organised crime, and, on the
other hand, the need to protect individuals against
the unwarranted
invasions of their privacy and dignity. As we held in
Hyundai
,
this is “a task that lies at the heart of the inquiry into
the limitation of rights.”
5
If the balance is struck in favour of the state, constitutional
rights, which the people of this country fought so hard to
achieve,
may be compromised. If it is struck in favour of constitutional
rights, then the fight against organised crime, in
particular
corruption, which is a real threat to our young democracy, may be
compromised. Precisely where and how that balance
should be struck
is the central question presented in these cases.
Issues
presented
The
main issues for consideration in these applications for leave to
appeal include whether:
it
is in the interests of justice to grant leave to appeal in these
cases;
the
state was guilty of non-disclosure of material facts which renders
the warrants invalid;
the
state established that there was a need for search and seizure
warrants in relation to the investigation; and
the
warrants were invalid because they were either overbroad or vague.
The
difference between the main judgment and this judgment
I
have read the main judgment. I remain troubled, as I was during
oral argument, by the question whether the requirement of
need was
satisfied before the search and seizure warrants were issued.
Regrettably, my troubles have not been assuaged by
the main
judgment. I am therefore unable to agree with the test for the
need requirement as formulated by it and his conclusion
that the
state established the need for the search and seizure warrants in
these cases.
In
addition, the majority finds that the state did not err materially
by failing to provide the judge who issued the search
and seizure
warrants with details on both earlier investigations and Thint’s
previous co-operation in the investigation.
The majority therefore
conclude that Thint’s complaint based on material
non-disclosure has no merit. I am unable to
agree with both the
finding and the conclusion of the majority in this regard.
However,
I agree with the main judgment that it is in the interests of
justice to grant the applicants leave to appeal. In
view of the
importance of the issues raised by the state in this regard, I
consider it necessary to set out my views on why
it is in the
interests of justice to grant leave to appeal.
The
conclusion I reach on the question of the need requirement and the
duty of disclosure renders it unnecessary for me to consider
the
challenge based on the contents of the warrants. This judgment is
therefore confined to three of the main issues set out
above,
namely: first, whether it is in the interests of justice to grant
leave to appeal; second, whether the state has established
the need
for the search and seizure warrants; and third, whether there was
non-disclosure of material facts.
In
order to put the issues in context, it will be necessary, by way of
background, to consider the investigative scheme of the
NPA Act and
the proper construction of subsection 29(5). Needless to say, the
question of the need requirement will be discussed
in relation to
Mr Zuma, Mr Hulley and Thint. In relation to Mr Zuma and Thint, it
will be necessary to address the argument
based on general concerns
about the likely or possible attitude of persons suspected of crime
not to co-operate in a section
28 summons investigation. This will
regrettably result in some unavoidable repetition and in the
judgment being longer than
it should have been.
Scheme
of the judgment
Accordingly,
in this judgment, I propose to address the following:
whether
it is in the interests of justice to grant leave to appeal in
these cases;
the
investigative scheme of the NPA Act;
the
construction of section 29(5);
the
test for the need requirement in subsection 29(5)(c);
the
requirement of disclosure of material information;
whether
the state satisfied the requirement of material disclosure;
whether
the state satisfied the requirement of the need for search and
seizure warrants; and
Is
it in the interests of justice to grant leave to appeal?
The
state contended that it is not in the interests of justice to grant
leave to appeal to the applicants. In support of this
contention
the state submitted that the sole purpose of this litigation is to
prevent the state from using the evidence that
it had obtained
through the disputed search and seizure warrants. The applicants’
remedy is to be found in section 35(5)
of the Constitution, which
empowers the trial court to exclude evidence obtained in a manner
that violates the Bill of Rights
if its admission would render the
trial unfair or otherwise be detrimental to the administration of
justice, so the argument
went. In effect, therefore, the
applicants are seeking to circumvent the provisions of section
35(5), argued the state. The
state submitted that this Court
should, as a matter of policy, decline to entertain challenges of
this nature as complainants
in these challenges have other
remedies.
Against
this background, the state submitted that the trial court would be
better placed than this Court to strike a balance
between, on the
one hand, the interests of the applicants, and, on the other hand,
the public interest. The trial court that
will be obliged to apply
the provisions of section 35(5) will exercise an overriding
discretion in terms of section 35(3) to
ensure that the applicants
are afforded a fair trial. As a matter of policy, therefore,
proceedings of this nature should
be discouraged and complaints of
this nature should be heard by the criminal court in which the
evidence is sought to be introduced,
argued the state.
The
applicants countered these submissions by contending that they are
entitled to vindicate their constitutional rights, regardless
of
the opportunity to prevent the admission of unlawfully obtained
evidence under section 35(5). They submitted that section
35(5)
does not give the state the right to retain documents which were
unlawfully obtained. The applicants also submitted
that they are
entitled to the return of their property. In particular, they
submitted that once the Supreme Court of Appeal
had pronounced on
the lawfulness of the warrants, the applicants could not raise the
same challenge to the validity of the
warrants, and therefore the
lawfulness of the search and seizure, in the trial court.
It
is true, that as a general matter, individuals who seek to prevent
the admission of evidence obtained in violation of the
Bill of
Rights must do so in the trial court in terms of section 35(5) of
the Constitution. The trial court will be obliged
in terms of
section 35(5) to exclude such evidence if its admission will render
the trial unfair or otherwise be detrimental
to the administration
of justice. Apart from this, the trial court will exercise an
overriding discretion in terms of section
35(3) of the Constitution
which requires criminal trials to be conducted fairly and therefore
ensure that the applicants are
afforded a fair trial. And, for all
the reasons advanced by the state, the trial court will be in a
better position to balance
the interests of the applicants, on the
one hand, and the public interest in the prosecution of crime, on
the other hand.
Indeed, where the trial has commenced, it would be
highly desirable to follow this route. For this reason, there is
something
to be said for the view that challenges to search and
seizure warrants must be considered by the court in which the
evidence
obtained through the warrant is sought to be introduced.
Whether
courts, including this Court, should therefore, as a matter of
policy, decline to consider challenges to search and
seizure
warrants and refer the litigant to the provisions of section 35(5)
of the Constitution, is a different matter. Such
a policy may run
foul of the provisions of sections 8(1), 34 and 38 of the
Constitution. In terms of section 8, courts are
bound by the
provisions of the Bill of Rights. Section 38 of the Constitution
confers a right on anyone who alleges that a
right in the Bill of
Rights has been infringed to approach a competent court for relief.
This right is fortified in section
34 of the Constitution which
guarantees the right of access to courts. A person who alleges
that his or her constitutional
rights to privacy have been
impermissibly violated by an invalid search warrant is therefore
entitled under our Constitution
to approach any competent court to
vindicate his or her constitutional right to privacy. Section
35(5) does not preclude any
person from doing so.
How
that tension between the provisions of sections 34 and 38, on the
one hand, and the policy contended for by the state, on
the other
hand, should be resolved, is not necessary to consider here. Nor
is it necessary to consider whether a court of
first instance,
where the validity of a warrant is raised, should adopt the policy
contended for by the state and refer the
challenge to the court in
which the evidence obtained through the disputed warrant is to be
produced.
What
is beyond question, in my view, is that this Court cannot, at this
stage of the litigation, adopt the policy contended
for by the
state. Once the Supreme Court of Appeal had pronounced on the
validity of the warrants, it was no longer open to
the applicants
to challenge the validity of the warrants on the same grounds that
were rejected by the Supreme Court of Appeal.
To do so would
amount to an impermissible collateral challenge to the decision of
the Supreme Court of Appeal. Whether the
applicants may challenge
the validity of the warrants on some other grounds other than those
rejected by the Supreme Court
of Appeal is not necessary to decide.
It is sufficient to say that once the Supreme Court of Appeal had
upheld the validity
of the warrants, it was no longer open to the
applicants to challenge the admissibility of the evidence obtained
through those
warrants in the trial court. The applicants
therefore had to come to this Court to challenge the validity of
the warrants.
In
these circumstances, and if all the other requirements for granting
leave to appeal are met, this Court is obliged to grant
leave to
appeal. It cannot refuse leave on the sole basis that a challenge
to warrants must, as a matter of policy, be considered
by the trial
court in which the evidence obtained through a search and seizure
warrant is sought to be introduced. It remains
to consider whether
the other requirements for granting leave to appeal are satisfied.
In
these cases there are compelling considerations which favour the
granting of leave to appeal. These cases, as I have pointed
out
earlier, raise important questions concerning the extent to which
the state may constitutionally intrude into the privacy
of an
individual or juristic person in the pursuit of the legitimate
objective of combating serious economic offences. A search
and
seizure is a powerful weapon in the hands of the state to
investigate these offences which are hard to detect. When these

powers may be used and what are the requirements for a valid search
warrant are questions raised by these cases. It is in
the
interests of the state that these issues be resolved.
The
High Courts,
6
which addressed these issues at first instance, reached opposing
conclusions. On appeal to the Supreme Court of Appeal, that
court
was sharply divided on whether the warrants were invalid for
overbreadth and vagueness. While the Supreme Court of Appeal
had
previously pronounced on the contents of search and seizure
warrants in
Powell
,
7
the court was divided on the scope and the applicability of the
Powell
decision. This Court has yet to pronounce on these
issues. It now has the benefit of the judgments of the courts
below.
It is desirable that this Court should now give a ruling on
these issues.
The
applicants’ desire to have a final ruling on the validity of
the search and seizure warrants cannot, therefore, be
characterised
as being hypothetical or academic or seeking justice in theory. It
raises real and substantial issues as far
as the applicants are
concerned and they have an interest in having these issues
resolved. The resolution of these issues
goes beyond the interests
of the applicants, and raises the constitutional limits of the
powers of the state under section
29(5).
In
all the circumstances, I would grant leave to appeal in both these
cases.
The
investigative powers in the NPA Act
The
questions presented in these cases must be understood and
considered within the statutory scheme of the investigative powers

of the Directorate of Special Operations (the DSO), and the
constitutional safeguards for the exercise of these powers.
The
powers of the DSO to investigate are set out in Chapter 5 of the
NPA Act.
8
If the Investigating Director has reason to suspect that a
specified offence has been or is being committed, or an attempt
has
been or is being made to commit a specified offence, he or she may
conduct an investigation.
9
Specified offences are, broadly speaking, offences or criminal or
unlawful activities committed in an organised fashion, and
they
include any other offences which the President may determine as
falling within the category of specified offences.
10
It is undisputed that corruption under the Corruption Act 94 of
1992 is one such offence. Similarly, where the National Director

of Public Prosecutions (the NDPP) refers a matter concerning an
alleged commission of, or attempt to commit, a specified offence
to
the Investigating Director, the latter is required to conduct
either an investigation or a preparatory investigation.
11
The purpose of a preparatory investigation is to determine whether
there are reasonable grounds to conduct an investigation.
12
The
Investigating Director is given wide and varied powers to
investigate and interrogate people and to obtain documents, books

and other objects relating to an investigation.
13
If the Investigating Director believes that you may be able to
furnish any information on the subject under investigation,
or that
you have in your possession or under your control any book,
document or object relating to the subject under investigation,
he
or she may summon you to appear before him or her for questioning
or require you to produce the book, document or object
in
question.
14
Once you appear before him or her you may then be questioned under
oath or affirmation. The documents, books or objects that
you
produce may be examined, or retained for further examination, or
retained for safe custody.
15
If these documents are retained and you require copies, you must
make copies of them at your own expense.
16
You
may not remain silent. You may not claim privilege against
self-incrimination. Of course, the answers you provide during
the
interrogation are not admissible against you in any criminal
proceedings.
17
But they are admissible in criminal proceedings arising from your
failure to comply with the provisions under which you are
being
interrogated.
18
If, without sufficient cause, you do not comply with the summons
or leave before being excused, you commit an offence.
19
Similarly, if you fail to produce the books or documents that you
were summoned to produce, that is also an offence.
20
If you refuse to be sworn in or to make an affirmation, you are
guilty of an offence.
21
If, after having been sworn in or having made an affirmation, you
fail to answer fully and to the best of your ability any
questions
put to you, you are guilty of an offence.
22
You are also guilty of an offence if you give false evidence,
knowing that evidence to be false.
23
The same goes if you give false evidence “not knowing or
believing it to be true.”
24
And if you are guilty of any of these offences you are liable to a
fine or to imprisonment for a period not exceeding 15 years
or to
both the fine and imprisonment.
25
Apart
from the powers to subpoena and interrogate, and to require the
production of books and documents, the NPA Act also gives
the
Investigating Director extensive powers to enter premises, search
for, examine and seize documents, books and objects found
there.
26
Officials who have been authorised by the Investigating Director
to conduct a search or seizure may enter your home with or
without
prior notice.
27
Once they have entered your premises, they may inspect and search
your premises and make enquiries from persons on your premises.
28
They may examine any object found on or in the premises which has
a bearing or might have a bearing on the investigation.
29
They may make copies or take extracts from any book or document
found on or in the premises and may require you to explain
entries
in the books or documents if you are suspected of having the
necessary information.
30
Anything found on or in the premises which has a bearing or might
have a bearing on the investigation may be seized and retained
for
further examination. Whether this is an item of sentimental value
to your family, such as your late wife’s diary,
matters not.
31
If you require copies of the documents seized, you must make
copies at your own expense.
32
That these documents happen to be yours, matters not.
Again
here, you may not remain silent. If you refuse or fail to give
information or an explanation relating to a matter within
your
knowledge, you are guilty of an offence.
33
So too, if you give any false or misleading information or
explanation knowing them to be so.
34
You are also guilty of an offence if you obstruct or hinder the
officials performing functions under these provisions.
35
As quid pro quo for your co-operation in the investigation, the
NPA Act says that the evidence regarding any questions and
answers
you give is not admissible in any subsequent criminal proceedings
against you.
36
This does not apply where you are charged with unlawful conduct
relating to the execution of a search and seizure warrant.
Subject
to two exceptions mentioned below, a search and seizure may only
occur if sanctioned by a warrant issued by a judicial
officer.
37
Two conditions must be met before a search and seizure warrant may
be issued. First, there must be information under oath
or
affirmation stating: (a) the nature of the investigation under
section 28;
38
(b) that there is a reasonable suspicion that a specified offence
has been committed or is being committed or an attempt is
being
made to commit these offences;
39
and (c) that there is a need for a search and seizure.
40
Second, the judicial officer must be satisfied that there are
reasonable grounds for believing that anything connected with
the
investigation is on or in the premises which are to be searched or
is suspected to be on or in these premises.
41
A
warrant is not necessary, however, if you consent to the search and
seizure.
42
Nor is it necessary if the Investigating Director, upon reasonable
grounds, believes that the warrant would be issued to him
or her if
he or she were to apply for it and the delay that might be caused
by obtaining the warrant would “defeat the
object of the
entry, search, seizure and removal.”
43
If
during the search you claim that any of the items found on the
premises contain privileged information, and you refuse the

inspection and removal of those items, the items concerned may be
seized and removed for safe custody by the registrar of the
High
Court having jurisdiction pending a ruling on whether the
information concerned is privileged.
44
This may be done at the request of the person executing the
warrant.
45
The
statutory scheme therefore provides the Investigating Director with
three methods of obtaining information for the purposes
of an
investigation. The first is to request the person who is in
possession of the books, documents or objects relating to
the
investigation to surrender those items voluntarily. This process
is provided for in section 29(10)(a)(i). The second
is to summon
the person who is believed to have the information to appear before
him or her for interrogation and to require
that person to produce
books, documents and objects under his or her control which relate
to the subject of the investigation.
46
The person summoned may be questioned under oath or affirmation
and documents or books produced by that person may be examined
and
seized for safe keeping.
47
The third mechanism is to apply for a search and seizure warrant
which authorises entry into and search of premises and the
seizure
of documents relevant to the investigation.
48
To make each of these mechanisms effective, the failure to comply
with a summons, or the giving of false information, or the
refusal
to produce documents, attract criminal sanctions and severe
penalties.
49
The same goes for hindering or obstructing the execution of a
search and seizure warrant.
50
In
the present cases we are concerned with the search and seizure
procedure which is provided for in section 29 of the NPA Act.
The
question which must be determined is whether on the facts, the
state was justified in resorting to the drastic mechanism
of search
and seizure for the purposes of conducting an investigation under
section 28. This question in turn raises three
interrelated
questions namely: first, what is the nature and extent of the
investigating director to disclose information to
the judicial
officer who is considering the issuing of a search and seizure
warrant; second, what is the test for determining
the need
requirement; and, third, on all the facts and circumstances of
these cases, was the state justified in resorting to
the search and
seizure procedure.
But
first the construction of section 29(5).
The
construction of section 29(5)
To
resolve the questions presented in these cases, it is necessary
first to construe the relevant provisions of section 29 of
the NPA
Act. These are subsections (4) and (5) which provide:
“
(4) Subject to
subsection (10), the premises referred to in subsection (1) may only
be entered, and the acts referred to in subsection
(1) may only be
performed, by virtue of a warrant issued in chambers by a
magistrate, regional magistrate or judge of the area
of jurisdiction
within which the premises is situated: Provided that such a warrant
may be issued by a judge in respect of premises
situated in another
area of jurisdiction, if he or she deems it justified.
(5) A warrant contemplated in
subsection (4) may only be issued if it appears to the magistrate,
regional magistrate or judge
from information on oath or
affirmation, stating—
(a) the nature of the
investigation in terms of section 28;
(b) that there exists a
reasonable suspicion that an offence, which might be a specified
offence, has been or is being committed,
or that an attempt was or
had been made to commit such an offence; and
(c) the need, in regard to the
investigation, for a search and seizure in terms of this section,
that there are reasonable
grounds for believing that anything referred to in subsection (1) is
on or in such premises or suspected
to be on or in such premises.”
As
pointed out above, this Court has previously considered the
provisions of section 29(5). However, this subsection was

considered in the context of a contention that the subsection does
not require that there should be a reasonable suspicion that
a
specified offence has been committed before the judicial officer
may authorise a search and seizure warrant for the purpose
of a
preparatory investigation.
51
What we said on that occasion is nevertheless instructive in
understanding the meaning and the requirements of the subsection.
Dealing
with the information that must be considered by the judicial
officer before a warrant for search and seizure may be
issued, we
said:
“
Section 29(5) prescribes
what information must be considered by the judicial officer before a
warrant for search and seizure may
be issued. It must appear to the
judicial officer, from information on oath or affirmation, that
there are reasonable grounds
for believing that anything connected
with the preparatory investigation is, or is suspected to be on such
premises. That information
must relate to (a) the nature of the
preparatory investigation; (b) the suspicion that gave rise to the
preparatory investigation;
and (c) the need for a warrant in regard
to the preparatory investigation. On the face of it, the judicial
officer is required,
among other things, to be satisfied that there
are grounds for a preparatory investigation; in other words, that
the Investigating
Director is not acting arbitrarily. Further, the
judicial officer must evaluate the suspicion that gave rise to the
preparatory
investigation as well as the need for a search for
purposes of a preparatory investigation.”
52
And we
added:
“
It is implicit in the
section that the judicial officer will apply his or her mind to the
question whether the suspicion which
led to the preparatory
investigation, and the need for the search and seizure to be
sanctioned, are sufficient to justify the
invasion of privacy that
is to take place. On the basis of that information, the judicial
officer has to make an independent
evaluation and determine whether
or not there are reasonable grounds to suspect that an object that
might have a bearing on a
preparatory investigation is on the
targeted premises.”
53
It
is clear from these passages, and indeed from the provisions of the
subsection, that one of the requirements for the issue
of a warrant
for search and seizure is a showing that there is a need for a
warrant in regard to the investigation.
54
In other words, the Investigating Director must demonstrate, and
the judicial officer must be satisfied, that it is necessary
to
obtain a warrant in order to conduct the investigation. As the
last passage amply demonstrates, the judicial officer must
“apply
his or her mind to the question whether . . . the need for the
search and seizure to be sanctioned, [is] sufficient
to justify the
invasion of privacy that is to take place.”
55
Neither
of the parties contended otherwise. On the contrary, they
approached the matter on the footing that the state had to
show a
need for a warrant. This was indeed the approach of the courts
below.
56
They were right in doing so. However, the parties and the courts
below differed on the appropriate test for determining the
need
requirement.
Proper
approach in determining need
What
must be considered in the first place is the proper approach in
determining the meaning of the phrase “the need,
in regard to
the investigation, for a search and a seizure in terms of [section
29(5)]”. It is by now axiomatic that
the provisions of
section 29(5) must be interpreted in a manner that promotes the
spirit, purport and objects of the Bill of
Rights.
57
This means that the provisions of section 29(5) must be construed
in a manner that does not authorise unwarranted invasion
of the
rights to privacy and other rights of the person who is the subject
of the investigation. This is consistent with the
limitation
clause of the Constitution which requires that a law of general
application, which limits a right in the Bill of
Rights, must be
reasonable and justifiable in an open and democratic society based
on human dignity, equality and freedom,
taking into consideration
all relevant factors, including any less restrictive means to
achieve the purpose of the statute.
58
In
Hyundai
, we emphasised that the NPA Act exhibits a concern
for the constitutional rights of persons subjected to the search
and seizure
provisions.
59
As evidence of this concern we drew attention to the fact that
subsections (4) and (5) require a search and seizure to be

authorised by a judicial officer.
60
This concern is also apparent from the provisions of section 29(2)
which require the execution of a search warrant to be conducted

with strict regard to decency and order, including respect for the
right to dignity, to personal freedom and security and to
privacy
of the person who is the subject of a search warrant. Persons
carrying out searches and seizures are therefore obliged
by the NPA
Act to comply with the requirements of the Constitution. So too
are the judicial officers who are required to issue
search and
seizure warrants. As we said in
Hyundai
, judicial officers
who authorise the search warrants must do so with due regard to a
person’s right to dignity, to personal
freedom and security,
and to privacy.
61
When
we concluded in
Hyundai
that the limitation of the right to
privacy imposed by section 29(5) is reasonable and justifiable
under 36(1) of the Constitution,
we emphasised that section 29(5)
provides sufficient safeguards against unwarranted invasion of the
right to privacy.
62
In my judgement, the provisions of section 29(5)(c) must therefore
be construed so as to prevent unwarranted invasion of
constitutional rights of persons likely to be affected by the
search and seizure warrants. In determining the meaning of the

word “need” in section 29(5)(c), it must be borne in
mind that the NPA Act contemplates that no one should be subjected

to unwarranted searches and seizures.
63
It must be construed in a manner that does not permit greater
invasion of constitutional rights than is required to achieve
the
objectives of the NPA Act.
But
at the same time the requirement of need must not be construed in
such a way as to make the NPA Act unworkable. The importance
of
the search and seizure provisions cannot be gainsaid. This much
appears from what we said in
Hyundai
:
“
It is a notorious fact
that the rate of crime in South Africa is unacceptably high. There
are frequent reports of violent crime
and incessant disclosures of
fraudulent activity. This has a seriously adverse effect not only
on the security of citizens and
the morale of the community but also
on the country’s economy. This ultimately affects the
government’s ability
to address the pressing social welfare
problems in South Africa. The need to fight crime is thus an
important objective in our
society, and the setting up of special
investigating directorates should be seen in that light. The
Legislature has sought to
prioritise the investigation of certain
serious offences detrimentally affecting our communities and has set
up a specialised
structure, the investigating directorate, to deal
with them. For purposes of conducting its investigatory functions,
the investigating
directorates have been granted the powers of
search and seizure.”
64
(Footnote omitted.)
In
construing the need requirement we must therefore adopt a
construction which, on the one hand, strikes a balance between
the
need to fight crime, and, on the other hand, the need to protect
individuals against state officials who unnecessarily
invade
premises for purposes of searching and seizing property. As we
held in
Hyundai
, we must strike a balance between the
interests of the individual and of the state; this is a task that
lies at the heart of
the enquiry into the limitation of rights.
65
The
starting point therefore is that a search and seizure warrant is
often a drastic invasion of privacy of the individual subject
to a
search. The state must therefore justify its resort to the more
drastic intrusion into the privacy of an individual in
the light of
the availability of the other less intrusive measures provided for
in the NPA Act. And consistent with the statute’s
concern
for constitutional rights, the judicial officer must be satisfied
that the intrusion is justified in the sense that
there are
reasonable grounds for believing that there is a need to resort to
a search and seizure warrant in order to obtain
the information
required for the purposes of the investigation. It is within this
context that the test for determining need
must be considered.
The
test for the need requirement
The
Durban High Court considered the “need” requirement in
section 29(5)(c) of the NPA Act and expressed the following
view:
“
It is common to all of
the reported authorities which I have read in relation to search and
seizure operations that the Court
has placed emphasis on the drastic
nature of the remedy. It should not be sanctioned by judicial
authorisation unless the judicial
officer is satisfied that the
investigating authority’s resort to it is reasonable in all
the circumstances. And it cannot
be reasonable if there are other,
less drastic means available to the investigating authority which
may succeed. . . . The upshot
of these considerations is that the
affidavit evidence placed before the judicial officer in terms of s
29(5) must contain a
persuasive explanation as to why the provisions
of s 29 have to be invoked for the purpose of obtaining the evidence
concerned.”
66
The
considerations that appear to have influenced Hurt J in formulating
the above test include the fact that the search and
seizure
procedure involves some drastic incursions into the rights in the
Bill of Rights, in particular those contained in
sections 10, 14,
25, 34 and 35 of the Constitution. In view of the drastic
incursions into these rights, he held that “the
person
requesting a warrant must satisfy the judicial officer that there
is no reasonable prospect of obtaining the evidence
by less
disruptive and incursive means.”
67
In the light of this, he reasoned that the judicial officer must
be satisfied by evidence under oath that the powers under
section
28 would probably not result in the evidence being obtained.
68
The
test postulated by Hurt J requires that the search and seizure
procedure be resorted to where it is “reasonable in
all the
circumstances” to do so. He held that where there were other
less drastic means available which may succeed,
resort to a search
and seizure procedure cannot be said to be reasonable.
69
The test enunciated by Hurt J was largely adopted by Du Plessis J,
in the Pretoria High Court, in the
Thint
case.
70
In this regard, the court said:
“
It is axiomatic that a
search and seizure warrant seriously invades different important
rights of the person or entity whose premises
are to be searched in
terms thereof. For that reason, as was pointed out in the Zuma and
Hulley judgment a judicial officer
should only authorise search and
seizure if ‘resort to it is reasonable in all the
circumstances’. To determine
whether search and seizure is
reasonable in all the circumstances the rights of the person or
entity, including those to privacy,
freedom and dignity must be
weighed against society's need to combat crime. The likelihood that
the information sought can be
obtained by less invasive means must
be taken into account.”
71
(Emphasis removed.)
The
state accepted the correctness of the test based on “reasonable
in all the circumstances.” However, it took
issue with the
view expressed by Hurt J that where there are less disruptive and
incursive means which might succeed, resort
to the search and
seizure procedure cannot be reasonable. It submitted that this
pitches the test much higher and would make
section 29 unworkable.
In support of its contention, the state submitted that it can never
prove that there is no reasonable
prospect of getting the evidence
from a suspect by asking him or her for it or by issuing a subpoena
against him or her to
produce documents. What it could at most
show is that there is a real risk that the suspect might destroy
the evidence or
dispose of it if it were to follow any of the
lesser intrusive routes, so the argument went. The showing of such
a risk, said
the state, is sufficient to demonstrate that it is
reasonable to follow the search and seizure route rather than risk
losing
the evidence.
The
majority of the Supreme Court of Appeal also criticised the test
formulated by the Durban High Court.
72
It was said that the High Court set the bar too high in requiring
a showing that the material could not be obtained by invoking
the
provisions of section 28. The Supreme Court of Appeal expressed
the view that it could not “see how an investigator
could
ever show that other than by first asking for the material to be
produced and having the request refused.”
73
If this is the requirement, the court said, this would altogether
undermine the investigation. The court further took the
view that
how an investigation is conducted falls within the prerogative of
the investigator.
I
think there is much to be said for the test postulated by the High
Court. Requiring the state to show that its resort to
the search
and seizure procedure is reasonable in all the circumstances is not
to pitch the test too high. Nor is requiring
the state to show
that the less drastic measures available to it are not likely to
succeed, nor is it to require the state
to do the impossible. As
Hurt J pointed out, what is required of the state is to place
evidence before the judicial officer
containing a persuasive
explanation as to why the search and seizure provisions have been
invoked. This is not too much to
expect of the state in the light
of the existence of a less drastic alternative.
The
test formulated by Hurt J permits the balancing of the right to
privacy against the need to make the investigative scheme
of the
NPA Act workable. Thus, if following the section 28 summons
procedure would involve the risk of frustrating the investigation,

resorting to the search and seizure would be reasonable. On the
other hand, if resorting to a section 28 summons procedure
does not
involve such a risk, resorting to the search and seizure would not
be reasonable. If there is no other reasonable
alternative to a
search and seizure procedure, provided other requirements are met,
resorting to a search and seizure procedure
would be reasonable in
justifying the invasion of privacy involved. In statutory terms,
there will be a need for a search
and seizure.
The
concept of need, to my mind, implies a consideration of other
mechanisms for getting information or documents. That this
must be
so is apparent from the provisions of the NPA Act which provide for
alternative mechanisms for obtaining information.
In the first
place, the state may resort to the informal method of obtaining
documents and records by requesting the person
who is in possession
of the documents voluntarily to surrender these documents or permit
the state to make copies of the documents.
This informal method is
implicit in section 29(10)(a)(i) which permits the state to search
for, seize and remove documents
or objects with the consent of the
person in charge of the premises.
In
the second place, there is the section 28 summons. Under this
mechanism, the state has far-reaching powers to subpoena and

interrogate persons believed to have information or documents or
records on the subject of the investigation. The provisions
of
section 28 equip the investigating authority with far-reaching
powers not only to conduct an investigation but also to obtain

documents, records or objects in possession of a person relating to
the subject of the investigation. To make these powers
effective
they are buttressed by criminal sanctions and penalties.
Accordingly, a person who fails to produce a document or
book or
object in his or her possession runs the risk of a fine or
imprisonment for up to 15 years. The provisions of section
28(6)
are therefore in themselves drastic. The provisions of section
29(5) are even more drastic.
The
statement by Hurt J draws its essence both from the provisions of
the Constitution and the NPA Act. As I have said before,
the NPA
Act expresses concern for constitutional rights. It does this out
of recognition that South Africa is a constitutional
state; a state
founded on the respect for human dignity and dedicated to the
pursuit of the achievement of human rights and
freedom for all.
Yet it is a state which recognises that at times there may be a
need to limit those rights. But when the
limitation does occur, it
must occur in accordance with the bounds prescribed by the
Constitution. Section 36(1) of the Constitution
requires a
limitation of constitutional rights to be reasonable and
justifiable in an open and democratic society dedicated
to the
pursuit of human dignity, equality and freedom.
Consistent
with this constitutional standard for determining the boundaries of
limitation, we have held that the process of
determining the
constitutionality of any limitation involves a balancing process.
74
Factors that are relevant to this balancing process include a
consideration of the availability of less intrusive means.
The
Constitution therefore prescribes reasonableness and justification
as a standard for determining the constitutionality
of a limitation
of constitutional rights, and requires the consideration of less
intrusive means.
Therefore,
a test which postulates reasonableness and justification as
requirements before resort to a more drastic and invasive
procedure
finds support in the Constitution. Resort to the more drastic
procedure must be reasonable and, to be reasonable,
it must be
justified in the light of the existence of other less drastic
mechanisms. The requirement of justification obliges
the state to
justify its conduct, in particular where it invades constitutional
rights. Indeed it is fundamental to a constitutional
state that
state conduct must be justifiable. This is the more so when the
state conduct constitutes an invasion of constitutional
rights.
The requirement that a search and seizure under section 29(5) may
only occur if sanctioned by a judicial officer is
consistent with
the requirement of justification. Were it to be otherwise, the
very foundation of our democracy would be undermined.
The
test formulated by the High Court also has support in the
provisions of the NPA Act. What the legislature contemplated
is
that, consistent with the concern for the constitutional rights of
persons under investigation: (a) the state will ordinarily
resort
to the informal method of requesting a person to surrender
documents or the less drastic procedure contained in section
28(6)
unless these methods are unlikely to succeed; and (b) when the
state resorts to the more drastic procedure in section
29(5),
consistently with the constitutional principles of openness and
accountability, the state will justify its conduct by
tendering
credible evidence under oath as to why, in the specific case,
resort to the provisions of section 29(5) is reasonable
and
justifiable. This approach to the construction of the provisions
of sections 28 and 29 is consistent with the constitutional

principle of interpretation which enjoins us to construe statutes
in a manner that results in less interference with constitutional

rights, a principle implicit, if not explicit, in the provisions of
sections 36(1) and 39(2) of the Constitution.
There
is support for this approach to search and seizure warrants in the
New Zealand jurisprudence and I consider it particularly

instructive to consider that jurisprudence. The New Zealand case
to which our attention was drawn is
Tranz Rail
.
75
That case involved a search warrant under section 98A(2) of the
Commerce Act 5 of 1986. That section, like section 29(5)
of the
NPA Act, authorises specified judicial officers to issue search
warrants if they are satisfied that there are reasonable
grounds to
believe that it is necessary to do so for the purposes of
ascertaining whether or not a person has engaged in or
is engaging
in conduct which constitutes or may constitute a contravention of
the Commerce Act.
76
In
addition, and like the NPA Act, section 98 of the Commerce Act
makes provision for an alternative mechanism for obtaining

information and documents relevant to the investigation. That
section empowers the Commission, which is the body that
investigates
contraventions of the Commerce Act, where it considers
it necessary or desirable for the purposes of carrying out its
functions
and powers, to give notice to any person, requiring that
person to furnish it with any information that is specified in the

notice or to furnish any document that is specified in the notice,
or to appear before it to give evidence, either orally or
in
writing, and to produce “any document or class of document.”
77
And
finally, like sections 28(6), 28(10) and 41(2) of the NPA Act,
refusal or failure, without reasonable excuse, to comply
with the
notice under section 98 or furnish or produce a document is an
offence.
78
Giving evidence “knowing it to be false or misleading is an
offence.”
79
Similarly, refusal or failure, without reasonable excuse, to
appear before the Commission, is an offence. So too is a refusal

to answer any question or produce any book or document that a
person is required to produce. These offences carry a penalty
of a
fine not exceeding NZ$ 10 000 in the case of an individual or NZ$
30 000 in the case of a corporation.
80
Instead
of using this section, the Commission sought and obtained
interviews with the personnel of Tranz Rail on a voluntary
basis.
Tranz Rail “adopted an entirely cooperative attitude.”
81
A number of interviews were conducted on different dates. Then,
without notice, officers of the Commission came to the premises
of
Tranz Rail to execute the search warrant. The warrant was
challenged on three grounds, namely, lack of evidence that the

warrant was necessary in terms of section 98A(2), material
non-disclosure, and the unjustified breadth of the warrant.
82
The
Court of Appeal held that the concept of necessity in section
98A(2) “must imply some consideration of what other

investigative tools such as s 98 notice, are reasonably available
before a warrant is issued.”
83
The Court emphasised that in determining the meaning of the word
“necessary”, the provisions of the Bill of Rights
which
protect everyone from unreasonable search and seizure must be borne
in mind. But at the same time the Court warned that
the word
“necessary” must not be construed in a manner that
renders the legislation unworkable.
84
In the course of developing the appropriate test for determining
whether it was necessary to resort to a search warrant, the
Court
identified “four linked but separately recognisable
considerations” that are relevant to the question of
whether
a warrant is necessary.
85
These are:
“
First, there must be
evidence giving rise to at least a reasonable suspicion that a
contravention of the Act is taking or has
taken place. Secondly,
access to the documents or other materials the subject of the
proposed search, must be reasonably required
for the purpose of the
Commission’s investigation. In this respect the compass of
the warrant . . . must be no greater
than is reasonably required.
Thirdly, the proposed search warrant must have a realistic prospect
of bearing fruit as regards
its proposed subject-matter and
location. Fourthly, and this will often be the most problematic
factor, there must be no other
reasonable way of gaining access to
the subject-matter of the search.”
86
Against
this background, the Court formulated the test as follows:
“
That brings us to the
fourth question. It is here that the parties primarily joined
issue, albeit they did not define the elements
of necessity as we
have done. The question is whether the Commission established, on
all the material facts, that there was
no other reasonable way of
gaining access to the subject-matter of the proposed search. That
question in this case really comes
down, as Judge Thompson
indicated, to whether it was reasonable for the Commission to have
used the s 98 procedure first. Was
a search warrant necessary when
these other investigating methods had not been used?”
87
The
test postulated in
Tranz Rail
therefore is whether, having
regard to all the material facts, it was reasonable for the
Commission to have used the search
warrants first when other less
invasive methods had not been used. It is plain from the judgment
that this test was informed
by the considerations of the right of
privacy contained in section 21 of the New Zealand Bill of Rights
and the need to recognise
Bill of Rights considerations in
construing and applying legislation.
88
The Court pointed out that “[i]f there is a reasonable
alternative to a search warrant, a search by warrant can be seen
as
an unreasonable search, and thus an inappropriate invasion of the
privacy expectations which s 21 engenders.”
89
And the court held that if there is no other reasonable
alternative to a search warrant, the search “will be a
reasonable
one justifying the invasion of privacy involved.”
90
Such a search will then be necessary within the meaning of the
statute.
91
In
my judgement, given the more drastic nature of the provisions of
section 29(5), the statement by Hurt J that it cannot be
reasonable
to resort to the provisions of section 29(5) if there are other
less drastic means available to the investigating
authority which
may succeed cannot be faulted. I consider this to be the correct
statement of the law. What must be stressed
here, which is
implicit, if not explicit, in the statement, is that the emphasis
is on the existence of less drastic means
“which may
succeed”. There should therefore be evidence under oath to
satisfy the judicial officer that the powers
under section 28 would
probably not result in the evidence being obtained. This serves to
protect persons who are the subject
of investigation from
unwarranted drastic invasion of their right to privacy.
To
sum up therefore, the judicial officer must be satisfied that the
drastic intrusion into the right to privacy of the individual

subject to a search is justified in the sense that resort to the
search and seizure procedure is reasonable in all the
circumstances.
The question therefore is whether, having regard to
all the material facts, the state established that it was
reasonable for
it to resort to the search and seizure procedure.
Since the judicial officer only has the information presented by
the state
to decide whether it is reasonable to resort to a search
and seizure warrant, the state must place all the facts relevant to
this task before the judicial officer. This brings me to the duty
of disclosure which is relevant to a consideration of the
need for
a search warrant.
The
duty of disclosure
It
is by now axiomatic that in an ex parte application, the applicant
is required to observe the
uberrima fides
(utmost good
faith) rule. This rule requires that all material facts which
might influence a court in coming to a decision
must be disclosed.
This rule is stated in the following terms by Herbstein and Van
Winsen:
“
Although, on the one
hand, the petitioner is entitled to embody in his petition only
sufficient allegations to establish his right,
he must, on the
other, make full disclosure of all material facts which might affect
the granting or otherwise of an ex parte
order.
The utmost good faith must be
observed by litigants making ex parte applications in placing
material facts before the court; so
much so that if an order has
been made upon an ex parte application and it appears that material
facts have been kept back, whether
wilfully and mala fide or
negligently, which might have influenced the decision of the court
whether to make an order or not,
the court has a discretion to set
the order aside with costs on the ground of non-disclosure. It
should, however, be noticed
that the court has a discretion and is
not compelled, even if the non-disclosure was material, to dismiss
the application or
to set aside the proceedings.”
92
(Footnote omitted.)
In
view of the ex parte nature of an application for a search and
seizure warrant, the state has a duty to disclose all the
material
facts, not only those in favour of the issuing of the warrant but
also those that are against the issuing of a warrant.
The duty of
utmost good faith must be observed.
93
All facts which may reasonably be regarded as relevant to the task
of the issuing by the judicial officer must be disclosed.
94
The duty of full disclosure goes to the need for a search warrant.
Withholding of information that is relevant to the need

requirement, whether deliberately or otherwise, may result in the
issuing of a warrant in circumstances where it should not
have been
issued. For example, the fact that the person under investigation
had volunteered to hand over documents relating
to the
investigation is a relevant and material fact.
95
Our
courts have extended the application of the disclosure rule to
applications for restraint orders under the provisions of
the
Prevention of Organised Crime Act 121 of 1998 (POCA) and to search
and seizure warrants under the NPA Act. Thus in
National
Director of Public Prosecutions v Basson
, the Supreme Court of
Appeal applied this rule in the context of an application for a
restraint order under the provisions
of section 26(1) read with
section 25(1) of POCA. In that case, the court had to consider
whether a punitive costs order should
have been made by the trial
court. In determining this question, the court held:
“
Where an order is sought
ex parte it is well established that the utmost good faith must be
observed. All material facts must
be disclosed which might
influence a court in coming to its decision, and the withholding or
suppression of material facts, by
itself, entitles a court to set
aside an order, even if the non-disclosure or suppression was not
wilful or mala fide”.
96
A
similar view was expressed in
Powell
97
in the context of search and seizure under the NPA Act under
section 29(5). In this case, the Supreme Court of Appeal had
to
consider, among other thing, a challenge to the validity of a
search and seizure warrant based on a failure to disclose
material
facts.
98
In the course of dealing with this challenge, the court held:
“
In invoking a procedure
without notice to the party sought to be subjected to it, Ferreira
engaged the processes of justice in
an inevitably one-sided process.
She was consequently under a duty to be ultra-scrupulous in
disclosing any material facts that
might influence the Court in
coming to its decision.”
99
Courts
in other jurisdictions, notably New Zealand, have adopted a similar
approach to search warrants. Thus in
Tranz Rail
, the Court
of Appeal said:
“
An application for a
search warrant in whatever context is almost always made on an ex
parte basis – that is, without notice
to the party whose
premises are to be the subject of the proposed search. For this
reason the judicial officer to whom the application
is made is
entitled to expect that the applicant will make full and candid
disclosure of all facts and circumstances relevant
to the question
whether the warrant should be issued. A failure to make such
disclosure runs the risk that any warrant obtained
will be held to
be invalid.”
100
And in
R v McColl
,
101
the duty of disclosure was described as follows:
“
It follows in our view
that the applicant should lay before the judicial officer all facts
which could reasonably be regarded
as relevant to the judicial
officer’s task. An applicant should not present the judicial
officer with a selective or edited
version of the facts. There is
an obligation on the applicant to be candid and to present the full
picture to the judicial officer,
not just the conclusion which the
judicial officer is asked to draw, supported by so much of the
factual background as the applicant
chooses to disclose. It is for
the judicial officer, on an assessment of all the relevant facts
fairly presented, to decide
whether the necessary conclusions can be
drawn, and thus whether a warrant should issue.”
102
There
is no reason in principle why the views expressed in these cases
should not be adopted. What these cases emphasise is
the need for
an applicant for an ex parte order to set out fully the facts known
to him or her which might influence the court
in coming to its
decision. This includes facts tat are against the issuing of the
search and seizure warrant. It is clear
from the
Tranz Rail
decision that an applicant for a warrant is obliged to set out all
facts known to him or her that might be relied upon by the
target
of the warrant if that person had the opportunity to oppose the
application for a warrant.
103
Thus,
where the target of a warrant had previously been subjected to
questioning, it is necessary to set out the details of
the
interrogation, so as to indicate whether there was any co-operation
from the person.
104
Merely recording that the individual denied the allegations is
likely to give the impression that there was a bare denial
of the
allegations.
105
If there were documents or records that were handed in during the
questioning, these must be specified, as well as the circumstances

under which they were handed in. Similarly, if an offer of further
assistance has been made, it should be mentioned. So too
the fact
that the individual had volunteered documents that relate to the
investigation. All this is necessary to enable the
judicial
officer properly to perform his or her function under the NPA Act.
What must be disclosed are material facts that
might influence the
judicial officer in coming to a decision whether to issue a
warrant.
The
significance of disclosure of all material facts cannot be
gainsaid. The judicial officer must be satisfied that there
is a
need for the state to resort to the search and seizure procedure as
opposed to other less drastic mechanisms for obtaining
information
and other documentation that the state requires in relation to the
investigation. The disclosure of evidence of
prior co-operation in
the investigation is a relevant and material consideration. The
suppression of this evidence, whether
wilfully or otherwise, may
mislead the judicial officer into believing that the person under
investigation is not likely to
co-operate if the state were to
resort to a section 28 summons. This may result in the issuing of
a search and seizure warrant
which, if all the material facts had
been disclosed, would not have been issued. And this would result
in an unwarranted drastic
invasion of the privacy of the person
under investigation. It is for this reason that the suppression or
withholding of material
and relevant facts, by itself, entitles a
court to set aside a search and seizure warrant.
106
With
these legal principles in mind, I now turn to consider the
applicants’ challenges to the validity of the search and

seizure warrants based on non-disclosure and the need requirement.
Was
there non-disclosure in respect of Thint?
Thint
contended that Mr Du Plooy was guilty of material non-disclosure in
that he failed to disclose fully to the authorising
judge the
extent of its previous co-operation in regard to the investigation.
In essence, Thint’s complaint with regard
to non-disclosure
relates to failure by Mr Du Plooy to disclose to the judge: first,
that a number of documents had been obtained
from Thint prior to
June 2001 by way of a section 28 summons and through voluntary
co-operation of Thint through its attorneys;
second, the full
extent of Thint’s previous co-operation in relation to the
section 28 investigation, which included
it making available to the
DSO during 2001 its computer information and computer materials;
and third, that Mr Thétard
had relocated to Mauritius and
had been succeeded by Mr Moynot who had been more willing to
co-operate during the investigation
than Mr Thétard,
according to the state’s version.
The
majority dismisses as without merit the non-disclosure complaint by
Thint. In dismissing the first two complaints, the
majority hold
that they are “not persuaded that Mr Du Plooy erred
materially by failing to provide more detail on these
earlier
investigations and Thint’s previous co-operation.”
107
And in dismissing the third complaint, the majority holds that it
seems unlikely that more details on Mr Thétard’s

relocation would have affected Ngoepe JP’s decision to issue
the warrants. I do not understand the majority to hold
that the
matters that form the subject of the non-disclosure complaint by
Thint were disclosed by Mr Du Plooy. The majority
hold the view
that these matters are not material to the task of deciding whether
to issue a warrant. I am unable to agree
with that view. It is
necessary to consider, in detail, what Mr Du Plooy disclosed and
what he did not disclose in relation
to Thint’s previous
co-operation in the investigation.
All
that Mr Du Plooy disclosed concerning Thint was that, during
October 2001, a search and seizure operation was conducted
at
various premises in France and Mauritius relating to the
Thomson/Thales Group and its offices, and that “documentation

was obtained from the Thomson corporate premises in Midrand before
the searches in 2001 by summons and with the co-operation
of
Thomson through its attorneys.” The question is whether the
two sentences in the affidavit of Mr Du Plooy, in which
he mentions
search and seizure operations at the premises of Thint and states
that documentation was obtained from Thomson
through the summons
and with the co-operation of Thomson through its attorneys, satisfy
the requirement of full and candid
disclosure as required by the
law.
In
opposing the High Court application, Mr Du Plooy did not dispute
the details of Thint’s previous co-operation in relation
to
the section 28 summons, but contended that he was not obliged to
give these details in applying for a search and seizure
warrant.
The factual averments by Mr Moynot and other deponents on behalf of
Thint are not denied by Mr McCarthy, who deposed
to an affidavit
dealing with these matters. The question is whether, in the light
of all the facts that have now come to light,
did Mr Du Plooy, to
borrow the phrase used by the Supreme Court of Appeal in
Powell
,
comply with the “duty to be scrupulous in disclosing any
material facts that might influence the court in coming to
its
decision.”
108
What must be borne in mind in answering this question is that the
state’s case is that it resorted to the search and
seizure
warrant because the section 28 summons and any other less intrusive
mechanism of obtaining information would have been
ineffective
against Thint. Thint’s previous co-operation in relation to
the section 28 summons is therefore highly relevant.
The
significance of full disclosure of the extent of prior co-operation
is material to the assessment of the efficacy of the
section 28
summons and thus the determination of the need for a search and
seizure warrant cannot be gainsaid. A section 28
summons provides
the state with the opportunity to call upon the person under
investigation to produce specific records, books
and documents.
The fact that a person under investigation was requested to produce
specific documents, records or books under
a section 28 summons,
and that the person in fact produced the documents required, is a
relevant consideration. This tends
to refute the suggestion that a
section 28 summons is likely to warn the person under investigation
and thus lead to the destruction
or concealment of documents,
records or books. It is therefore necessary to consider in some
detail the facts that are relevant
to Thint’s previous
co-operation which were not disclosed in the application for the
search warrant.
It
is apparent from the affidavit of Mr Driman, Thint’s attorney
at the time, that the section 28 summons called upon
Thint to
produce books, documents and objects which were specified in the
summons. He says the following in this regard:
“
At the initial stages of
my instructions, a summons in terms of Section [28] of the
National
Prosecuting Authority Act was
served on ADS calling upon it to
produce books, documents or objects mentioned in the summons to the
Investigating Director.
I was instructed by the Second Applicant to
make arrangements with the DSO to offer its full co-operation and
expedite the orderly
surrender of all the books, documents and
objects mentioned in the summons. To this end, I made arrangements
with Dawes to meet
at the ADS premises in Midrand at an appointed
time on Wednesday, 23 May 2001, to expedite the delivery of all that
had been
required in terms of the summons. Although the books,
documents and objects mentioned in the summons covered a very
extensive
range and were extremely broad, my instructions were to
tender everything which the investigators considered was covered by
the
summons subject to sufficient safeguards being implemented to
preserve the confidentiality relating to the business affairs and

transactions of ADS which by its very nature were highly secretive
and private.
. . . .
I discussed with Dawes the
question of persons whom the investigators wished to interview but
he informed me that the investigators
would first review the
documents which they required by way of summons before a decision
was made as to who should be interviewed.
We discussed arrangements
that would be made should persons be required for interviews. As
agreed, arrangements were made for
persons who were later
interviewed pursuant to summons being served on them in terms of
Section 28 of the NPA Act. Amongst the
persons interviewed were the
Second Applicant, Mr Alain Thetard and Mr Christiaan Louis Pelser
who had been employed as administrator
by the First Applicant.
During the discussions, I
informed Dawes that the time permitted for the production of the
documents was not sufficient because
of their extensive nature.
On 23 May 2001, Dawes and other
investigators perused the documents stored at the offices of ADS and
removed whatever files, books,
documents or objects which they
considered to have been covered by the summons. No restrictions
whatsoever were placed on the
investigators who searched the
premises and removed the material. Other documents that had been
requested by the investigators
and which were not located at ADS in
Midrand were kept at its operations premises at Mount Edgecombe in
KwaZulu-Natal.”
Mr
Driman describes the extent of the co-operation in general. As is
apparent from the affidavit of Mr Driman, some of the
documents
that the investigators required were not in Midrand but were in
Mount Edgecombe. The investigators were therefore
allowed to
conduct a search at the offices in Mount Edgecombe. The extent of
the co-operation at the Mount Edgecombe premises
is described by Ms
Fryer, the TNA Contract Manager for African Defence Systems (Pty)
Ltd (ADS) in Mount Edgecombe. The investigators
were granted
absolute access to the premises and were allowed to peruse all the
documents and files and copy whatever they
chose. The
investigators searched and seized files, books and a number of
items. It took the entire week to seize and copy
the documents,
which were later removed from the premises by a trailer. These
allegations are not denied either.
The
extent of co-operation by Thint in the prior section 28 summons
proceedings is also apparent from the affidavit of Mr Moynot.
He
says the investigating authority was given untrammelled access to
all records and documents it wished to see. A large
amount of
documentation and computer information was obtained from Thint by
way of a section 28 summons and Thint’s co-operation
through
its attorneys. This included some 30 lever arch files, computer
disks, hard drives, computers and a laptop that were
surrendered to
the investigating authority. Mirror images were made of the
contents of the computers by officers of the investigating

authority with the co-operation of the employees of Thint, most
notably the co-operation of Mr Thétard. What is significant

is that all this information was made available voluntarily,
pursuant to the section 28 summons. Furthermore, Mr Sooklal,

Thint’s attorney, had offered further co-operation in any
future investigation on behalf of Thint.
There
is no suggestion on the part of the state that the books, documents
and objects which were mentioned in the summons served
upon Thint
were not made available to them. Indeed, if this had been the
case, one would have expected the state to have said
so in order to
demonstrate the inefficacy of a section 28 summons. It must
therefore be accepted that Thint, as Mr Driman
states in his
affidavit, tendered “everything which the investigators
considered was covered by the summons”.
This conduct on the
part of Thint, viewed against the absence of any suggestion that
documents mentioned in the summons were
not made available to the
state, refutes any suggestion that a section 28 summons would have
been ineffective against Thint.
Or for that matter that any other
less intrusive mechanism would not have worked.
What
must be stressed is the point already made: the state has an
obligation to be candid and to present the full picture to
the
judicial officer who is considering the issuing of the warrant. In
an application for a search warrant the judicial officer
should not
be presented with a selective or edited version of the facts. Nor
should the state present just the conclusion
that the judicial
officer is asked to draw supported only by the factual background
that the state chooses to disclose. The
state should be
“ultra-scrupulous” in disclosing any material fact that
might influence the judicial officer in
coming to a decision
whether to issue a search and seizure warrant.
109
It is for the judicial officer, on an assessment of all the
relevant facts fairly presented, to decide whether the other less

drastic measures might be ineffective and thus whether it is
reasonable for the state to resort to a search and seizure

warrant.
110
The
picture that the information that was presented to the judge in the
application for the search warrant painted was that
Thint and its
officials would not co-operate and were likely to hide or destroy
documents and that the section 28 summons would
be ineffective
against Thint. This impression of Thint is strengthened by the
terse reference to prior co-operation by Thint
and the
documentation that was obtained through the section 28 summons.
This picture no doubt influenced the judge in his
decision to issue
the search warrant. Yet, when one has regard to the true facts, a
different picture emerges. The picture
which emerges is that Thint
and its officials fully co-operated in the investigation to such an
extent that the state remarked
that “Mr Moynot has at all
times offered the investigating teams his characteristically kind
and affable cooperation.”
The
investigators were granted absolute access to the files, books,
documents, computers and other objects which they considered
to
have been covered by the section 28 summons. The investigators
were offered assistance by Thint’s attorney and were
offered
co-operation in any further investigation. In no way was the judge
made aware that there had been no refusal to supply
any documentary
material or computer material which was mentioned in the section 28
summons. This picture refutes the suggestion
by Mr Du Plooy that
the section 28 summons would have been ineffective in relation to
Thint. Indeed, the judge was not aware
that a large volume of
items that were mentioned were made available to the investigators
and they were allowed to remove these
items over a period of five
days, including the diaries for 1997, 1998 and 1999. In
National
Director of Public Prosecutions v Basson
,
111
the Supreme Court of Appeal held that the fact that a person
against whom a restraint order is sought had volunteered to place

all affected property under the control of the state is clearly
material. So too is the fact that the target of a search warrant

had previously co-operated fully with the investigators.
What
is more, it is apparent from the affidavit of Mr Driman that
certain officials of Thint, notably, Mr Moynot and Mr Thétard,

were interrogated pursuant to the section 28 summons. Yet the
judge was not told what questions were asked and what answers
were
given during the interrogation. Nor was the judge told of the
information obtained through interrogation. The fact that
these
officials were interviewed does not appear in the affidavit of Mr
Du Plooy in support of the application for warrants.
Where the
target of a search warrant has previously been summoned under
section 28, it is necessary to set out fully the extent
of previous
co-operation, documents, records or other objects surrendered, as
well as the circumstances under which the items
were handed in. To
my mind, so too is the fact that the individual had volunteered
documents and had offered assistance in
the future if needed.
In
the circumstances of this case, prior co-operation by Thint was
highly relevant to the question whether the section 28 summons

would have been ineffective against Thint as alleged by the state
and ultimately whether it was therefore reasonable for the
state to
resort to the search and seizure warrant. The state was
accordingly obliged by the principle of full disclosure to
disclose
the details of Thint’s prior co-operation. Its failure to do
so constituted a material error.
So
too did its failure to disclose the fact that Mr Thétard
relocated to Mauritius during the second quarter of 2000
and that
Mr Thétard had left Thint by the end of January 2002. Mr
Moynot also complained about the failure to disclose
the fact that
Mr Thétard relocated to Mauritius during the second quarter
of 2000. As appears from the affidavit of
Ms Ferreira, this fact
was known to the state. Ms Ferreira was the previous lead
investigator of the DSO in respect of the
relevant investigation
and she also interrogated Mr Thétard. Although Ms Ferreira
did not depose to an affidavit in
these proceedings, during
September 2001 she deposed to an affidavit in the application for a
commission rogatoire
and a search and seizure in Mauritius.
This was some two months after the search at the offices of Thint
pursuant to a section
28 summons and through the co-operation of
Thint. Mr Moynot refers to an excerpt from this affidavit in which
Ms Ferreira
stated, amongst other things, that “[i]n the
second quarter of 2000, Thetard relocated to the Thales Africa
office in
Port Louis, Mauritius, although he retained his Thomson
Holding and Thomson (Pty) Limited positions in South Africa.”

This excerpt is attached to the affidavit of Mr Moynot and he
offered to make available the full affidavit of Ms Ferreira in

court. The state did not take issue with the contents of this
affidavit.
Ms
Ferreira, as the lead investigator in this matter at the relevant
time and who was preparing for an application for search
and
seizure in Mauritius, would have known the whereabouts of Mr
Thétard. In addition, in the excerpt attached, Ms
Ferreira
described in some detail the corporate structure of Thomson
companies and referred to the senior executives of the
companies.
In particular, she focused on Mr Thétard, describing the
position he held at the time, the places where
he reported to and
then stated that he relocated to Mauritius “in the second
quarter of 2000”. It is therefore
inconceivable that she
could have made a mistake about the relocation of Mr Thétard
to Mauritius. No one disputed this
allegation either. On the
contrary, it also appears from the statement made by Mr Jugoo, the
Detective Chief Inspector in Mauritius
who conducted the search and
seizure that Mr Thétard was already in his Mauritius office
by 9 October 2001.
It must therefore be accepted that Mr Thétard had in fact
relocated to Mauritius by the time the section 28 summons
was
served on him. It is therefore probable that when he left for
Mauritius, during the second quarter of 2000, he took with
him his
diary for 2000 and left the diaries for the years 1997, 1998 and
1999 in his South African office. This is so because
although Mr
Thétard had relocated to Mauritius, he nevertheless
“retained his Thomson Holding and Thomson (Pty)
Limited
positions in South Africa” and this explains why he retained
his Midrand office where the other diaries were
found. That
explains why the diaries for the years 1997, 1998 and 1999 were
“removed from the safe of the office of
Alain Thetard”,
as annexure CLP1 of the affidavit of Mr Pelser indicates. What
must be emphasised is that, prior to
October 2001, no one
specifically asked Mr Thétard to hand over to or produce his
diary for 2000. The undisputed fact
is that, when Mr Jugoo, who
conducted the search and seizure in Mauritius three months later,
asked Mr Thétard for his
diary for 2000, Mr Thétard
“without hesitation . . . removed [the diary] from the second
drawer of his office
table and handed it over to [Mr Jugoo].”
Mr
Downer describes how the search at Mr Thétard’s office
in Mauritius was conducted. Mr Jugoo and his team conducted
the
search while Mr Downer and the other members of his team waited
outside. Periodically Mr Jugoo would come outside and
hand
documents to Mr Downer in order to ascertain if the document was
relevant to the investigation. Apparently, Mr Jugoo
did not know
which documents were relevant to the investigation and that is why
he had to ask Mr Downer about each document.
During this process,
Mr Downer asked Mr Jugoo if he had found Mr Thétard’s
diary for 2000 and he asked Mr Jugoo
to specifically ask Mr Thétard
for the diary. Mr Jugoo therefore returned to the office and asked
Mr Thétard
for his diary for 2000 and Mr Thétard,
without hesitation, retrieved the diary from the drawer of his desk
and handed
it over to Mr Jugoo.
It
seems inconceivable that Mr Thétard would have kept his
diary for 2000 in his Mauritius office about three months
after the
search in his office in South Africa if he had intended to conceal
or destroy it. If he intended to conceal it,
he had ample time to
do so. This conduct on the part of Mr Thétard is
inconsistent with a person who intended to conceal
or destroy the
diary. The conclusion that Mr Thétard concealed his diary
for 2000 and did not co-operate with the investigation
is therefore
not supported by the true facts. Regrettably, this picture of Mr
Thétard did not emerge before the judge
because the full
facts were not presented.
It
is not without significance that the allegations relating to the
diary for 2000, which Mr Du Plooy made in his opposing affidavit
in
the High Court, evoked a specific and direct response from Mr
Moynot. In his response, Mr Moynot claims that Mr Thétard

was interrogated by Ms Ferreira pursuant to the section 28 summons.
He states under oath that he had gone through the record
of the
proceedings of the interrogation and that “[n]owhere in the
record of proceedings is it ever indicated that Mr
Thetard was
asked for or expressed unwillingness to provide his diary for
2000.” Mr Moynot offered the record of the
proceedings and
further stated that the state is in possession of this record. In
effect, Mr Moynot’s allegations called
into question the
statement made by Mr Du Plooy that Mr Thétard was unwilling
to produce his diary for 2000 pursuant
to the section 28 summons.
In
these circumstances, and in particular given the heavy reliance by
Mr Du Plooy on the alleged concealment of the diary for
2000, it
was incumbent upon Mr Du Plooy to respond specifically to the
allegations made by Mr Moynot in reply. It is true
that these
allegations by Mr Moynot are contained in his replying affidavit
and, in the normal course of events, could not
be denied by Mr Du
Plooy. However, if these allegations were untrue, or if there was
an adequate explanation for the allegation
by Mr Du Plooy in
relation to the diary for 2000, leave of the High Court could have
been sought to answer these allegations
and would probably have
been granted.
112
Mr Moynot’s replying affidavit did not evoke any request
from the state to be given an opportunity to deal with the

allegations made by Mr Moynot; instead the case was argued on all
the affidavits including the replying affidavit by Mr Moynot

without demur by the state.
In
all the circumstances, the fact that Mr Thétard had
relocated to Mauritius in the second quarter of 2000; the
circumstances
under which the other diaries were found by the
investigators; the fact that prior to October 2001 Mr Thétard
had never
been specifically asked for his diary for 2000; the fact
that when Mr Thétard was specifically asked for his diary
for
2000, he handed it over without hesitation; and that Mr Thétard
had left Thint by January 2002, were all matters that were
relevant
to the question of the likelihood of the co-operation of Thint with
a further section 28 summons. The disclosure
of these matters
would have provided a different picture to that of concealment
suggested by the state.
It
is important here to bear in mind that the judicial officer is the
only line of pre-emptive defence against unwarranted invasions
of
privacy and dignity of the person who is the subject of a proposed
search. The NPA Act, as I have pointed out earlier,
clearly
exhibits a concern for the constitutional rights of persons subject
to the search and seizure provisions.
113
This is why subsections 29(4) and (5) state that a search and
seizure may only be carried out if sanctioned by a warrant issued

by a judicial officer.
114
That is why the NPA Act made provision for obtaining information
by means of mechanisms of varying degrees of intrusion.
Thus, when
a judicial officer considers an application for a search and
seizure warrant, he or she is performing an important
judicial
process which is designed to strike the right balance between the
interests of the state and those of the person who
is the subject
of the search warrant. That balance can only be struck if the
judicial officer has all the facts and circumstances
relevant to
the question whether the warrant should be issued. This includes
facts which are known to the state which might
be relied on by the
subject of the search if that person had the opportunity to oppose
the application.
115
A failure to disclose facts that are material to the issuing of a
search and seizure warrant entitles a court to declare the
warrant
invalid.
116
I
am therefore unable to agree with the views expressed in the main
judgment that the failure by Mr Du Plooy to disclose the
matters
set out above was not a material error. A failure to observe the
duty to make full and candid disclosure should not
be excused too
readily on the basis of immateriality. To do so may well undermine
the duty to put the judicial officer in
possession of all the
potentially relevant facts, so that it is the judicial officer who
decides what is relevant rather than
the investigating authority.
No doubt there will be cases when it can be said that although
relevant information has not been
disclosed, the non-disclosure is
immaterial. This is not such a case. The information which Mr Du
Plooy did not disclose
was clearly relevant to the efficacy of a
section 28 summons and ultimately to the question whether, in all
the circumstances,
it was reasonable for the state to resort to the
more drastic measure of a warrant instead of other less drastic
measures.
For
all these reasons, I conclude that, in respect of Thint, there was
a material non-disclosure and this non-disclosure is
relevant to
the question whether the need for a search and seizure warrant was
established in relation to Thint. It is to
that question that I
now turn. In this regard, the question is whether, in all the
circumstances relating to Thint, including
the information that was
not placed before the judge, it was reasonable for the state to
resort to the search and seizure procedure.
Thint
and the need for the search and seizure
In
dealing with the need for search and seizures in relation to Thint,
Mr Du Plooy advanced both specific and general concerns
regarding
people who are under investigation. The specific concerns raised
by Mr Du Plooy relate to Mr Thétard. I
deal later with the
general concerns. The specific concerns relate to the conduct of
Mr Thétard and they concern Mr
Thétard’s diary
for 2000 and the so-called encrypted fax.
Mr
Du Plooy refers to the fact that Mr Thétard was unwilling to
produce his diary for 2000 while he was willing to make
available
the diaries for other years. This statement is no more than a
conclusion that Mr Du Plooy drew from the facts.
And this
conclusion created the impression that Mr Thétard concealed
his diary for 2000 during the section 28 summons
investigation and
that the discovery of the diary was only as a result of search and
seizure in Mauritius. This impression
supports the fact that a
further section 28 summons would not have been effective in these
circumstances. Mr Du Plooy did
not present to the judge the facts
upon which his conclusion was based. However, a review of the true
facts casts doubt on
the conclusion reached by Mr Du Plooy.
What
is important to note in this regard is that the investigators were
given the power to go into the offices of Thint and
search for and
seize any documents or objects which they considered relevant to
the investigation. In the course of a search
the investigators
found and removed from the safe in Mr Thétard’s office
his diaries for 1997, 1998 and 1999.
This is apparent from
annexure CLP1 to the affidavit of Mr Pelser which indicated that
these diaries were “removed from
the safe in the office of
Alain Thetard, room 1G6”. Mr Thétard did not hand
over these diaries to the investigators.
These diaries were kept
in the safe because they were no longer in use. The diary for 2000
was not in the safe because when
Mr Thétard relocated to
Mauritius in the second quarter of 2000 he would have taken it with
him, as Mr Moynot alleges.
After 2000, he would have kept the
diary in his Mauritius office. This would have explained why that
diary was later found
in Mauritius as the statement by Mr Jugoo
indicates.
What is important, however, is that at no stage was Mr Thétard
specifically asked to produce his diary for 2000 save
during the
search and seizure in Mauritius in October 2001, which was some
three to four months after the alleged concealment
of the diary.
And what is more telling is the undeniable fact that when Mr
Thétard was specifically asked for his diary
for 2000 in
October 2001, he “without hesitation” produced the
diary from the drawer of his desk. Mr Thétard
must have
known that the investigation was continuing and that he was the
main focus of the investigation. His Midrand office
had been
searched a mere three months earlier. In these circumstances, it
is highly unlikely that if Mr Thétard had
intended to
conceal the diary he would have retained the diary and kept it in
his Mauritius office.
In
all the circumstances, it was incumbent upon Mr Du Plooy to give
the full circumstances under which the diaries were found,

including Mr Thétard’s response when he was
specifically asked for his diary for 2000. This information was
highly relevant to the question whether Mr Thétard sought to
conceal his diary for 2000 from the investigators. The
disclosure
of these facts would have shown that there was an explanation for
the fact that the diary for 2000 was not found
in South Africa
during July 2001 but was only handed over to the investigators
about three months later in Mauritius. And
this would have cast
doubt on the suggestion that Mr Thétard sought to conceal
the diary.
In
these circumstances, the state’s reliance on the diary issue
is misplaced because there is no credible evidence that
Mr Thétard
was ever asked for his diary for the year 2000 and refused to make
it available. On the contrary, on the
state’s version, when
Mr Thétard was asked for this diary, he, as Detective Chief
Inspector Jugoo stated, “without
hesitation removed [the
diary] from the second drawer of his office table and handed it
over to [Mr Jugoo].” If Mr Thétard
had been
previously asked for his diary and had concealed it, it seems
highly unlikely that he would have kept this incriminating
evidence
at his office and in the drawer of his desk for that matter. This
conduct on the part of Mr Thétard is inconsistent
with the
behaviour of a person who wanted to conceal or destroy the diary
for 2000. In addition, the fact that the encrypted
fax was not
discovered during the section 28 summons search does not mean that
it had been concealed. It may have been in
Mauritius at the time,
as Mr Thétard had relocated there.
That
said, what must be stressed however is that the specific concerns
Mr Du Plooy raised pertained exclusively to Mr Thétard,
who
was an employee of Thint. They do not relate to Thint as an
institution, or any other Thint representative. What is more,
Mr
Thétard had resigned as a director of Thint by 30 January
2002. He thereafter had no ties with Thint. Mr Moynot
was the
person who was then in charge. He had an impeccable record of
co-operation in the investigation as testified to by
the letter
from the state confirming the fact that “Mr Moynot has at all
times offered the investigating team his characteristically
kind
and affable cooperation.” The conduct of Thint, and Mr
Moynot in particular, was not impeached. On the contrary,
on the
state’s version, Mr Moynot always co-operated with the
investigation.
What
is further significant is that Thint through its attorneys offered
co-operation in any further investigation. During April
2004 and
at the request of the state, Thint co-operated with the state in
securing an affidavit from Mr Thétard confirming
that he was
the author of the encrypted fax. While it is true that this
co-operation was linked to the withdrawal of the charges
against
Thint in relation to the trial of Mr Shaik, it was made clear to
Thint that the withdrawal of charges against it did
not mean
indemnity from prosecution. These allegations, which are contained
in the founding affidavit of Mr Moynot, were not
disputed by the
state.
In
these circumstances, it is therefore difficult to fathom why Thint
should not be judged by the conduct of Mr Moynot. Or
for that
matter why Thint should not be judged by its own conduct of full
prior co-operation. And as I have set out above,
Thint had
co-operated fully during the section 28 summons proceedings. In
all the circumstances there was simply no basis
for any belief that
Thint would not co-operate in any further investigation. There is
no suggestion in the papers either that
Thint knew of the encrypted
fax or of the diary of 2000, or that it concealed either item.
On
the basis of the information provided by Mr Du Plooy in support of
the search and seizure warrant, and the impression given
by that
information, the judge who issued the warrant could well have
inferred that Thint and its officials were less than
co-operative
in furnishing the documents and computer records pursuant to the
section 28 summons. Indeed, he would have been
left with the
impression that Thint and its officials had concealed certain
documents during the section 28 investigation and
that they were
therefore prone to continue to do so were the section 28 summons
procedure to be resorted to again. Had that
been the true
position, the judge could have concluded that it was unreasonable
to expect the investigating authority to use
the section 28
procedure or indeed to take any other steps before obtaining the
search warrant. But when the issue is viewed
against the true
facts, the position is by no means the same.
As
set out above, the justification for a search and seizure warrant
is not immediately apparent. The section 28 summons procedure
had
been used successfully against Thint as evidenced by the extensive
co-operation by Thint and its officials during the investigation
at
its two premises, one in Midrand and the other in Mount Edgecombe,
and the documentation and other evidence surrendered
pursuant to
the section 28 summons. The investigators were given unlimited
access to any document or object that they considered
was relevant
having regard to the items that were mentioned in the section 28
summons. In all the circumstances, in particular
having regard to
Thint’s prior co-operation with the section 28 summons, the
state has not shown that it was reasonable
for the investigating
authority to resort to a search and seizure warrant.
Was
there a need for a search and seizure in relation to Mr Zuma?
There
is no suggestion in the affidavit of Mr Du Plooy that Mr Zuma was
summoned in terms of section 28 as the other individuals
were.
During the entire investigation spanning almost four years, Mr Du
Plooy only mentions one incident relating to the questioning
of Mr
Zuma. All he says is that during the investigation, Mr Zuma agreed
to provide written answers to written questions concerning
the
allegations of corruption against him in Parliament. In this
regard, Mr Du Plooy says:
“
Questions concerning
Zuma’s involvement in the present matter were directed to him
in Parliament on 14 February 2003. In
his reply on 12 March 2003,
he denied any wrongdoing. He denied attending a meeting with
Thetard and Shaik in Durban on 11 March
2000. His reply makes no
mention of any meeting with Thetard and Shaik in Durban on 10 March
2000, in accordance with Shaik’s
version, or on any date at
all to discuss the request for a donation to the Jacob Zuma
Education Trust.”
Mr
Du Plooy goes on to record “the gravamen” of Mr Zuma’s
response to the facts on which the two charges of
corruption are
brought:
“
Count 1
Zuma denied that he received
any payments (as opposed to loans) from Shaik or the Nkobi companies
over the period 1995 to 2002.
He [conceded] that he is a party to a
loan agreement with Schabir Shaik, under which he receives loans for
personal expenses.
His version in this regard, is thus a bare
denial of any wrongdoing.
Count 3
Zuma contends that he did not
meet Thetard and Shaik on 11 March 2000 as alleged in the fax. He
denies that the contents of the
fax are true. Zuma makes no mention
of a meeting between himself, Shaik and Thetard the previous day
during which a request
for a donation to the Jacob Zuma Education
Trust was discussed, in accordance with Shaik’s testimony at
his trial. Zuma
concedes that he might have met representatives of
the Thomson/Thales group in Paris and/or in South Africa during the
period
1997 to date, but contends that only general matters relating
to his official portfolios would have been discussed. It is obvious

that the request for a donation to the JZET is not a matter relating
to Zuma’s official portfolios. Zuma thus in effect
denies
that he met Shaik and Thetard and discussed a donation to the JZET.
This contradicts Shaik’s testimony and serves
to detract from
the strength and reasonableness of Zuma’s denial.”
It
is not clear from this affidavit why the discrepancy between what
Mr Shaik said in evidence in his trial and Mr Zuma’s
response
should “detract from the strength and reasonableness of
Zuma’s denial” as Mr Du Plooy suggests in
his
affidavit. What is more, this answer was given by Mr Zuma during
March 2003 and before the trial of Mr Shaik commenced.
There is
nothing in the affidavit to indicate that Mr Zuma was called upon
to explain this discrepancy. Nor is it clear why
Mr Du Plooy
should prefer Mr Shaik’s evidence on this aspect to that of
Mr Zuma without giving Mr Zuma the opportunity
to explain the
discrepancy.
In
relation to other individuals who were investigated, such as Mr
Reddy, Mr Kögl of Cay Nominees (Pty) Ltd and Ms Fakude-Nkuna

of Bohlabela Wheels (Pty) Ltd, Mr Du Plooy records: the fact that
they were summoned in terms of section 28 and questioned
under that
section; the information that was obtained from them; and why the
information obtained from these individuals was
either “not .
. . calculated to facilitate any investigation into the source of
funds” (in the case of Mr Kögl)
or raised “doubt
as to the completeness and veracity of the information supplied”
(in the case of Ms Fakude-Nkuna).
In the case of Mr Reddy, while
his attorney invited the state to address requests for further
information to him, the explanation
for not accepting this offer
was that “there can be no guarantee of the completeness or
veracity of information in documents
provided pursuant to a section
28 summons.” Why this is so is not apparent from the
affidavit. These of course are
conclusions drawn by Mr Du Plooy;
there is no factual basis for these conclusions.
Now,
in the case of Mr Zuma, the judge was not told what the specific
concerns were which justified a jump from an informal
question and
answer procedure to the more drastic measure of a search and
seizure warrant. We know from the affidavit of Mr
Du Plooy that Mr
Zuma was questioned in Parliament in 2003. We are not given the
details of the questions asked and the answers
given. We are left
with the impression that, in response to Count One of corruption,
“[h]is version [was] a bare denial
of any wrongdoing.”
In relation to Count Three, we are told that he denied certain
things, admitted others and explained
some. We are not told
whether Mr Zuma was ever asked to produce any documents or records
or, if that was the case, what his
attitude was to this request.
Where
a person who has been questioned in the past is the subject of a
search and seizure warrant, it is incumbent upon the
state to
provide a full background relating to the questions asked and the
answers given to those questions.
117
The state should not give the judicial officer considering the
warrant an edited version.
118
Such information is vital to demonstrate the extent of the
co-operation during a prior encounter. And this in turn is

relevant to the question whether there is a need to resort to the
more drastic search and seizure warrant. As pointed out earlier,

in an application for a search and seizure warrant, the state
should be candid and present the full picture and present all
the
relevant facts fairly. This is necessary to enable the judicial
officer to assess whether on all the material facts it
is
reasonable for the state to resort to a search and seizure warrant.
The judicial officer must be able to assess the efficacy
of other
processes of securing the documents sought.
Mr
Du Plooy does not indicate that Mr Zuma refused to answer any of
the questions directed to him. Indeed, he does not tell
us that Mr
Zuma refused to co-operate. In the light of this background, the
justification for a search and seizure warrant
as against a section
28 summons is not obvious. The investigating authority moved
straight from co-operation to the most intrusive
step available to
it without giving any satisfactory explanation why the intermediate
step of a section 28 summons would not
be sufficient. During 2003,
when questions were directed to Mr Zuma, he was already a suspect.
At that point, the investigating
authority presumably had no
significant concerns about concealment or destruction. On that
occasion, the investigating authority
was content to receive
information from Mr Zuma on an informal basis as an appropriate
means of ascertaining whether there
had been a commission of a
specified offence. The need for a search warrant, as opposed to a
summons under section 28, after
what appears to have been a fairly
informal approach to the investigation, is not self-evident, nor,
as I have said, was it
adequately explained.
In
the case of Mr Zuma and Mr Hulley, the High Court questioned the
need for an investigation in terms of section 28(1). The
court’s
concern arose from the fact that, according to Mr Du Plooy, the
state had “credible evidence” on
the charges of
corruption against both Mr Zuma and Thint. If this is true, then
there would have been no need for any further
investigation.
However, Mr Du Plooy advanced further reasons for continuing the
investigation in terms of section 28(1).
He stated that the
continuation of an investigation during a criminal trial is a
common feature of criminal proceedings in
complex commercial
matters. He went on to state that certain aspects may emerge from
the accused’s defence which may
require investigation. Of
course, this did not arise in this particular case because the
trial had not started, so that there
was nothing which had emerged
which required any investigation.
Mr
Du Plooy of course alluded to the difficulty which the state
encounters in relation to equipping itself to deal with defences

which the accused may raise during the course of the trial. But,
as the High Court correctly observed, that problem exists
in every
prosecution. I agree with the High Court that “[i]t is
inconceivable that the prosecuting authority could justifiably

invoke the search and seizure provisions against an accused for the
avowed purpose of finding out what defences he will raise
during
his trial.”
119
This is not, in my view, the purpose of the provisions of section
28. Nor can this be the purpose of section 29(5). Were
it to be
otherwise, this would indeed have serious consequences for an
accused person’s right to a fair trial.
I
agree with the High Court that if the state has a prima facie case
to establish that benefits were received in relation to
fraudulent
non-disclosure of benefits and income, there can surely be no
difficulty in establishing the absence of any declaration
to
Parliament or to the Receiver of Revenue of those benefits.
Indeed, it is difficult to conceive of how a fraudulent

non-disclosure of benefits or of income, as the High Court
observed, “in such a narrow compass”,
120
could be described as complicated offences in the sense
contemplated in the proclamation defining specified offences which

may be the subject of investigation in terms of section 28 and 29.
Was
there a need for a search and seizure in relation to Mr Hulley?
The
information relating to Mr Hulley, on the basis of which Mr Du
Plooy sought to establish that the resort to a search and
seizure
warrant in relation to Mr Hulley was reasonable, is contained in
one paragraph of the affidavit of Mr Du Plooy. All
that is said is
this:
“
The attorneys for Shaik,
Messrs Reeves Parsee, directed a letter to the prosecution dated 19
July 2005, informing that Shaik had
resigned his position as
financial adviser to Zuma as of 11 July 2005 and that all Zuma’s
documentation has been forwarded
to Zuma’s attorney, namely Mr
M Hulley. It is known to me that Mr Hulley practices in Durban
under the style of M Hulley
and Associates. In the result, it is
also necessary to obtain the relevant information concerning Zuma
from Hulley and Associates.”
The
question is whether based on this information only it was
reasonable for the state to resort to the more drastic measure
of a
search warrant instead of other less drastic mechanisms for
obtaining the information from Mr Hulley, the attorney for
Mr Zuma.
In my view it was manifestly not. This information is wholly
inadequate to establish that it was reasonable for
the state to
resort to the search warrant in the case of Mr Hulley, an attorney
and an officer of the court. And as it turned
out, all that the
state required from him were two boxes containing documents that
had been sent to him. The state could have
requested Mr Hulley to
consent to them perusing or removing or making copies of the
documents in terms of section 29(10)(a)(i)
of the NPA Act. At the
same time they could have drawn his attention to the fact that if
he refused to consent the state would
either invoke the summons
process or the search warrant procedure. In addition, they could
have drawn his attention to the
offences and penalties for
concealing or destroying the documents prescribed by the NPA Act.
All this could have been explored
rather than a resort to the
drastic measure of a search and seizure warrant.
But
there are further considerations which militate against the
reasonableness of resorting to a search and seizure warrant
in the
case of Mr Hulley.
The
undisputed fact in relation to Mr Hulley is that what prompted the
search and seizure at his offices was a letter from Mr
Shaik’s
attorney informing the state that Mr Shaik had resigned as Mr
Zuma’s financial advisor and that they had
forwarded all
documentation belonging to Mr Zuma to his attorney, Mr Hulley.
This letter was not attached to the affidavit
in support of the
application for a warrant against Mr Hulley. Nor was the issuing
judge told when the letter was received
by the investigating
authority. All that the judge was told was that the letter was
sent on 19 July 2005, leaving everyone
to speculate on how the
letter was sent and when it would have reached the state. This may
well leave one with the impression
that the letter was sent by post
and probably reached the state sometime after 19 July 2005.
The
letter and the details that are missing from the affidavit of Mr Du
Plooy appear, however, in the affidavit of Mr Steynberg,
a Deputy
Director of Public Prosecutions stationed in KwaZulu-Natal. This
affidavit was filed in the Durban High Court in
the proceedings in
which Mr Zuma and Mr Hulley challenged the lawfulness of the
warrants at issue in these cases. It emerges
from both the letter
itself and the affidavit of Mr Steynberg that the letter was in
fact sent to Messrs Downer and Steynberg
by telefax transmission on
19 July 2005. The letter was, in all probability therefore,
received by the state on the same day;
that is, on 19 July 2005.
The letter informed the state that documentation had been forwarded
to Mr Hulley. The letter did
not indicate when this documentation
had been sent.
Mr
Du Plooy only applied for a search and seizure warrant against Mr
Hulley on 11 August 2005, some three and a half weeks after
the
state had received information that documentation relating to Mr
Zuma had been sent to Mr Hulley’s office. Mr Du
Plooy did
not explain this delay in applying for a search and seizure
warrant. An applicant for a search and seizure must
explain any
delay in applying for such a warrant.
121
If the state had been concerned about the disappearance of the
documents, one would have expected the state to act promptly
to
obtain the documents. The state did not do so. Nor does the state
explain why it did not do so. Of course, the state
does not say it
feared that Mr Hulley would otherwise destroy the documentation.
What
is even more telling is that Mr Du Plooy does not set out which
steps, if any, that were taken by the state to establish
whether Mr
Hulley had the documentation and whether he was prepared to produce
the documentation. Significantly, there is
no explanation as to
why any method of securing the documentation from Mr Hulley other
than through a warrant would not have
been successful. The absence
of this explanation must be viewed against the prior conduct of the
state in dealing with the
other individuals such as Messrs Zuma,
Reddy, Thétard and Kögl, Ms Fakude-Nkuna, and Thint.
Except for Mr Zuma,
to whom questions were directed in Parliament,
the others were issued with section 28 summonses. And in relation
to Mr Reddy,
Mr Kögl, Ms Fakude-Nkuna and Thint, Mr Du Plooy
put forward some explanation, albeit an unsatisfactory explanation,
as
to why he was not confident that further section 28 summonses
would yield results. But he provides no explanation, nothing at

all, in respect of Mr Hulley for recourse to the search and seizure
warrants. In fact, in relation to Mr Hulley, Mr Du Plooy
disclosed
no specific concerns which led him to resort to the search and
seizure procedure without considering any other mechanisms
for
obtaining the documentation sought by the state.
There
was no suggestion that Mr Hulley, who is an officer of the court,
would not have co-operated if the state had asked him
to hand over
the documentation sought. Indeed, Mr Du Plooy could hardly have
made such a suggestion as he had never had any
dealings with Mr
Hulley prior to the search and seizure procedure. Had there been
an intention to conceal or destroy the documentation
sent to Mr
Hulley, more than enough time had lapsed for this to be done. I am
not suggesting here that Mr Hulley would do
any such thing. On the
contrary, when the search and seizure team requested him to produce
the documentation, he immediately
directed them to two sealed boxes
which contained the documentation. This conduct on the part of Mr
Hulley is utterly inconsistent
with the picture that Mr Du Plooy
paints in the affidavit. In fact, in relation to Mr Hulley, Mr Du
Plooy does not even suggest
that he feared that he might conceal or
destroy the documentation in question. All he says is that “it
is also necessary
to obtain the relevant information concerning
Zuma from Hulley and Associates.”
The
absence of any information as to whether other less intrusive
mechanisms were considered at all, and if they were, why they
were
unlikely to succeed, must of course be viewed in the light of the
fact that all that the state was looking for was the
documentation
that Mr Hulley had received from Mr Shaik’s attorney. There
was no question that Mr Hulley had received
the documentation. A
simple enquiry addressed to him to establish whether he had the
documentation would have confirmed this.
If he was no longer in
possession of it, he would have had to explain what had happened to
the documentation. In fact, in
relation to Mr Hulley, the state
could have sought his consent as contemplated in section
29(10)(a)(i) or utilised a section
28 summons.
But
we need not speculate on these matters, as Mr Hulley’s
conduct during the search belies any suggestion that he would
have
concealed the documentation if he had been summoned under section
28 to produce it. It is indeed unthinkable on the information

presented to the judge that Mr Hulley, an officer of the court,
would have risked going to jail for 15 years rather than produce

the documentation as he subsequently did when he was asked to.
There is simply no credible evidence that Mr Hulley would not
have
produced the documentation under a summons in terms of section 28
or if he had been asked for the documentation.
Against
this background the justification for resort to the search and
seizure warrant is not immediately apparent. If the
investigating
authority feared that the documents would be destroyed or
concealed, then there are difficulties confronting
the
investigating authority in this regard. First, Mr Du Plooy does
not make this allegation in relation to Mr Hulley. Second,
on the
information contained in the affidavit of Mr Du Plooy there is no
basis whatsoever for such a fear. Indeed, Mr Du Plooy
does not
suggest that he had any such fear in relation to Mr Hulley. There
are no specific concerns that relate to Mr Hulley
in this regard
that are advanced by Mr Du Plooy. Third, in relation to Mr Hulley,
the investigating authority went straight
for the most intrusive
step available without first exploring the less intrusive means.
There
is no explanation. Nothing at all, to show why Mr Hulley was not
requested to hand over the documentation or, for that
matter, why
the section 28 summons was not invoked. Nor is there any
suggestion that any other method ran the risk of frustrating
the
object of the search. Indeed, the need for a search and seizure
warrant, as opposed to a section 28 summons or some other
less
intrusive mechanism, after what appears to have been a fairly
informal approach to the investigation in relation to Mr
Zuma, and
resort to the section 28 summons in relation to others, is not
self-evident. Nor, as I have said, was it explained
at all. In
fact, it does not even appear that Mr Du Plooy applied his mind to
the efficacy of a section 28 summons or any
other less intrusive
process in relation to Mr Hulley.
It
is indeed a source of grave concern if attorneys who are officers
of the court, who are not suspects, can be subjected to
such
drastic measures without first being given the opportunity to
produce the documentation required. We should even be more

concerned if attorneys’ offices are subjected to such
measures without any justification as to why such drastic measures

are required. Such conduct runs counter to the principles of
openness, accountability and responsiveness on which our
constitutional
democracy is founded. Unlike the previous legal
order, our constitutional democracy is deeply rooted in the culture
of justification.
The state must justify its conduct, in
particular, when its conduct constitutes an intrusion into the
right to privacy. This
is necessary in order to prevent arbitrary
conduct and abuse of power. Unless drastic measures of the kind
used in this case
are only resorted to when it is reasonable to do
so, this may have a chilling effect on the right to legal
representation,
a right that we hold so dear. It is even more
disturbing where the state simply resorts to the search and seizure
provisions
without any attempt to explain why resort to such a
measure is justified. The general concerns expressed by Mr Du
Plooy relate
to persons who are suspects. Mr Hulley is not a
suspect. He is an attorney, who represents Mr Zuma who is a
suspect.
In
all these circumstances I consider that the resort to the search
and seizure warrant in respect of Mr Hulley was not reasonable.

Even if one were to apply the test postulated by the majority,
namely, whether there was a real risk that the documentation
sought
would not be obtained, I would still reach the same conclusion.
There is simply no information to sustain that risk.
Before
concluding this judgement, it is necessary to deal with statements
of general concern about the unlikelihood of persons
under
investigation to co-operate with a section 28 summons.
Statements
of general concern
In
attempting to justify the need for search and seizure warrants, Mr
Du Plooy expresses some general concerns about the efficacy
of a
summons in terms of section 28. He says that it requires a notice
and thus provides “the opportunity to hide or
destroy
incriminating evidence prior to complying with the summons.”
He concludes, therefore, that a summons in terms
of section 28 has
limited efficacy in discovering incriminating material,
particularly in the case of corruption where there
is no aggrieved
victim who would wish to come forward. It is necessary to consider
the relevance of statements of general
concerns in relation to the
need for a search and seizure warrant.
General
statements by an investigator that persons under investigation are
not likely to co-operate and that a section 28 summons
will warn
the person ahead of time to conceal the documents are not entirely
irrelevant. However, standing alone they cannot
be decisive. Were
it to be otherwise, it would mean that the state would be at
liberty always to invoke the provisions of
section 29(5) on the
mere say so of the investigator stating that people under
investigation are likely to conceal information.
This attitude can
never be sanctioned under our constitutional democracy which is
founded on human dignity, the achievement
of equality, and the
advancement of human rights and freedom for all. It can never be
assumed that all persons who are the
subject of an investigation
are prone to conceal information. Were this to be the case, it
would mean that the investigators
would always resort to section
29(5) whenever they were conducting an investigation under section
28. This would render the
requirement of a need for a search under
section 29(5) unnecessary. Indeed, the provisions of section 28(6)
would also be
rendered redundant.
What
must be stressed here is the point already made: the NPA Act
expresses a concern for the constitutional rights of persons
under
investigation. This concern is demonstrated, among other things,
by providing the state with less drastic measures in
section 28(6)
and more drastic measures in section 29 to conduct investigations.
By doing so, the legislature seeks to safeguard
against unwarranted
invasion of the right to privacy, and that if there is a need for
invasion of privacy, such invasion be
kept at a minimum. To my
mind, it is inconceivable that the legislature contemplated that
the state will always resort to
the provisions of section 29(5) on
the assumption that a person under investigation is unlikely to
co-operate in an investigation.
To hold otherwise would be to
sacrifice constitutional rights at the altar of the fight against
crime.
The
need to fight organised crime and, in particular corruption, cannot
be gainsaid. That fight, however, should not be fought
at the
expense of the unwarranted limitation of constitutional rights. A
nation that considers itself under siege can be a
danger unto
itself. Constitutional rights are invariably the first casualty in
a nation which considers itself to be under
siege, whether the
siege comes from the prevalence of crime or some other source. It
is precisely at such times that courts
ought to be vigilant and act
as a bulwark against unwarranted invasion of constitutional rights.
They must insist on the minimum
invasion of constitutional rights.
They should not allow greater invasion than is required by the
specific facts and circumstances
of the case.
It
is clear from the provisions of section 29(5)(c) that one of the
requirements for the issuing of a search and seizure warrant
is the
need for a warrant in regard to the investigation. The judicial
officer must therefore evaluate the need for a search
for the
purposes of the investigation. It is implicit, if not explicit, in
this requirement that the investigator must place
before the
judicial officer evidence under oath demonstrating the need for the
search in relation to the investigation. What
the person
requesting the warrant must establish therefore is that it is
necessary to invoke the provisions of section 29(5)
in order to
obtain the evidence to fulfil the purposes of the investigation.
It is this evidence which the judicial officer
must evaluate in
order to satisfy himself or herself that there is a need for a
search and seizure warrant in regard to the
investigation. The
mere fact that a person is subject to an investigation under
section 28 does not in itself establish the
need to invoke the
provisions of section 29(5)(c). This is so because section 28(6)
itself gives the investigator far-reaching
powers of subpoena,
interrogation and to obtain evidence.
The
efficacy of the section 28(6) summons procedure is a relevant
consideration. The general concerns, such as those expressed
by Mr
Du Plooy about the likely or possible attitude of individuals
suspected of committing offences, are of some general relevance.

However, the investigating authority in its evidence in support of
the application for a search and seizure warrant should
set forth
evidence of specific concerns about the likelihood of concealment
or destruction in a particular case. The absence
of this specific
evidence will not necessarily be fatal to the application, as there
may nevertheless be sufficient other evidence
to establish that, in
all the circumstances of the particular case, it was reasonable to
resort to the search and seizure procedure.
In
this Court, the state submitted that people who are suspects are
far more likely to withhold, conceal, remove and destroy

incriminating evidence in their possession and give false,
misleading or incomplete answers to questions put to them.
The
majority endorses this proposition and go further in drawing
attention to the fact that these individuals are charged with
an
offence involving dishonesty. In the main judgment, the majority
states that:
“
Furthermore,
the crimes of which Mr Shaik has been convicted, and in which Mr
Zuma and Thint have been implicated, involve pre-meditation
and
dishonesty. These factors must be taken into consideration. They
do not engender confidence that those involved would respond

honestly to a subpoena. Accordingly, the state could not assume
with confidence that the applicants would be fully truthful
and
honest in response to a section 28 summons. There was at the very
least an appreciable risk that they might not be, and
that was
sufficient to establish the ‘need’ for a section 29
search and seizure.
”
122
I
am unable to agree with the views expressed by the majority and the
state. They seem to proceed on the premise that suspects,
in
particular those who are accused of crimes involving dishonesty,
cannot be trusted to co-operate in response to a section
28
summons. These views are inconsistent with our constitutional
values of human dignity, the achievement of equality and
the
advancement of human rights and freedoms for all. They are indeed
inconsistent with the right to be presumed innocent
until proven
guilty. This is an elementary principle of our law. That is why
suspects must be charged, and thereafter tried
before an impartial
tribunal, before they can be pronounced guilty. This applies to
all suspects regardless of the offence
with which they are charged.
I
am unable to find anything in our Constitution which warrants the
suggestion that persons accused of crimes involving dishonesty
are
less likely to co-operate. What must be stressed here is that our
Constitution embodies an objective, normative value
system; it
embodies “fundamental constitutional value[s] for all areas
of the law [which should act] as a guiding principle
and stimulus
for the Legislature, Executive and Judiciary.”
123
These fundamental constitutional principles are explicitly set out
in the founding provisions of our Constitution and are
explicitly
given effect to in the Bill of Rights. Such values are human
dignity and the achievement of equality. The equal
protection
provision of our Constitution declares that every one of us is
entitled to equal protection of the law.
A
legal proposition which suggests that persons who are suspects in
offences involving dishonesty are less likely to co-operate
in
investigations or are likely to act dishonestly in an investigation
is inimical to these values. Indeed, it is inimical
to the
principles long recognised by our common law and now embodied in
our constitutional law that all those accused of crimes
are
innocent until they are proven guilty. A construction of the
provisions of section 29(5) which permits the state to treat

suspects accused of crimes involving dishonesty differently from
other suspects is, in my view, inconsistent with the constitutional

injunction to construe statutes so as to promote, respect and
protect the rights in the Bill of Rights including the right
to
equal protection under the law. Indeed, it is inconsistent with
the spirit and the letter of the NPA Act which manifest
a concern
for constitutional rights which include the right to equal
protection of the law. I am therefore unable to subscribe
to a
proposition that suggests that individuals that are suspected of
offences involving dishonesty must be treated differently.
Such
a construction of the provisions of section 29(5) does not take
sufficient account of the provisions of sections 28 and
29 of the
NPA Act. The NPA Act provides at least three different mechanisms
for obtaining information and documents relevant
to an
investigation: consent under section 29(10)(a)(i), a section 28
summons and a section 29(5) search and seizure warrant.
These
mechanisms are not there for the state to pick and choose between
any one of them. They are there to be used when it
is necessary
for them to be used. The search and seizure warrant is the most
drastic of them all. It could never have been
the intention of the
legislature to permit the state always to resort to the most
drastic process, the search and seizure warrant,
whenever it
investigates persons suspected of offences involving dishonesty.
If this had been the case, it would have been
an easy matter to
have said so expressly.
The
legislature contemplated that the state would use the less drastic
measure consistently with the legislature’s concern
for the
right to privacy and other constitutional rights. It contemplated
that when the state resorts to the more drastic
mechanism in
section 29(5), the state will provide an explanation or
justification as to why the more drastic measure is used
when there
are less drastic measures available. It could not have been the
intention of the legislature that such an explanation
would always
be that a certain class of suspects do not co-operate. This would
be inimical to the equality provision of the
Constitution. If that
were to be so, the provisions of section 28(6) would not have been
enacted because the state will always
express a general concern
about persons under investigation not co-operating and therefore
this would be enough to establish
a need for a search and seizure
warrant. The section 28 summons procedure would then be completely
superfluous.
While
general concerns are not entirely irrelevant, as I have pointed out
above, there must be information specific to the individual
or
entity under investigation which would justify resort to a search
and seizure warrant. That is what is lacking in this
case. On the
contrary, on the information that is now available but which was
not available to the judge who issued the warrant,
Thint and its
officials co-operated during the section 28 summons investigation.
There was no suggestion that they had withheld
any information or
documents. Far from this, the state complimented Mr Moynot and
remarked that “Mr Moynot has at all
times offered the
investigating team his characteristically kind and affable
cooperation.” In the case of Messrs Zuma
and Hulley, there
was no specific information which justified resort to the search
and seizure provisions.
Conclusion
I
am mindful of the difficulties faced by the state with regard to
the inherent tension which exists in respect of the different
ways
in which it may choose to investigate a specified offence. If it
goes straight for a section 29(5) warrant, it will be
asked to
justify that course against the less intrusive step of voluntary
co-operation or a section 28 summons. If it seeks
voluntary
co-operation in relation to others who are being investigated and
then moves, as here, straight to seeking a warrant
in respect of
other individuals, it will be asked to justify that change of
approach. Judicial scrutiny is involved when a
search and seizure
warrant is sought because the legislature seeks to have a judicial
officer control the balance between privacy
considerations and the
public interest in having the Investigating Director properly
investigate serious offences.
The
inherent tension to which I have referred must ultimately be
resolved by the courts. The judicial officer who is asked
to issue
a warrant must balance the competing interests in accordance with
the circumstances of each particular case. To do
this, the
judicial officer relies heavily on information contained in the
application for a search and seizure warrant. Candid
and full
disclosure will enable the court to understand the concerns of the
investigating authority and its reasons for seeking
a search and
seizure warrant, either immediately or after earlier investigating
steps have been undertaken. In these cases,
and for the reasons I
have given, I have found that the search and seizure warrants were
not shown to have been needed as required
by section 29(5)(c) of
the NPA Act.
For
all these reasons, I conclude that the state has not established
that it was reasonable in all the circumstances to resort
to the
search and seizure warrants. The state has therefore failed to
establish that there was a need within the meaning of
the NPA Act
to resort to the search and seizure warrants in the case of all the
applicants.
In
the light of this conclusion it is not necessary for me to express
any opinion on the attack on the warrants based on their
broad and
general terms. And, in addition, this being a minority judgment,
it is not necessary for me to consider whether
I would have granted
a preservation order.
For the Applicants in CCT 89/07: Advocate P Hodes SC, Advocate A
Katz
and Advocate M Collins instructed by Shamin Rampersad &
Associates.
For the Applicants in CCT 91/07: Advocate KJ Kemp SC, Advocate MDC
Smithers and Advocate TS Khuzwayo instructed by Lourens, De
Lange &
Minnie.
For the Respondents in CCT 89/07
and 91/07: Advocate W Trengove SC, Advocate RJ
Salmon SC and Advocate AM Breitenbach instructed by the State
Attorney.
1
Act 32 of 1998.
2
Thint (Pty) Ltd v National Director of Public
Prosecutions
[2008] 1 All SA 229
(SCA)
and
National Director of Public
Prosecutions v Zuma and Another
[2008]
1 All SA 197
(SCA) (the SCA Zuma judgment).
3
Zuma and Another v National Director of Public
Prosecutions and Others
2006 (1) SACR
468
(D);
[2006] 2 All SA 91
(D).
4
Thint (Pty) Ltd and Others v National Director
of Public Prosecutions and Others
Case
No 268/2006 of the Pretoria High Court, 4 July 2006, unreported.
5
At the time of the issue and execution of the
search warrants that are the subject matter of these proceedings, Mr
Zuma was the
Deputy President of the African National Congress.
6
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635C, discussed and
approved in
Rail Commuters Action Group
and Others v Transnet Ltd t/a Metrorail and Others
[2004]
ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4) BCLR 301
(CC) at para 53.
7
In my view,
Farlam JA correctly drew this
distinction at para 19 of the SCA Zuma judgment, above n 2.
8
Pretoria Portland Cement Co Ltd and Another v
Competition Commission and Others
2003
(2) SA 385
(SCA) at paras 2 and 44-8.
9
The text of the relevant provisions of section 28
is set out below at para 34.
10
S v Shaik and Others
2007 (1) SACR 142
(D);
[2005] 3 All SA
211
(D).
11
S v Shaik and Others
[2006] ZASCA 105
;
2007
(1) SA 240
(SCA);
2007 (1) SACR 247
(SCA);
[2007] 2 All SA 9
(SCA).
12
Shaik and Others v S
[2007] ZACC 19
;
2008 (2) SA 208
(CC);
2007 (12) BCLR 1360
(CC).
13
On 4 November 2005, after the search and seizure
operations at issue took place, the indictment of Mr Zuma was served
on Thint
and Thint Holding (Southern Africa) (Pty) Ltd, joining them
as co-accused and summoning them for trial in the Pietermaritzburg

High Court together with Mr Zuma. On 1 December 2006, after the
High Court judgments in the present matter were handed down
but
before the respective appeals were heard by the Supreme Court of
Appeal, the investigation was extended further to include
instances
of racketeering and money laundering in contravention of the
Prevention of Organised Crime Act 121 of 1998
, allegedly committed
by Mr Zuma, Thint, Thint Holding (Southern Africa) (Pty) Ltd, and
other persons associated with Mr Shaik.
14
The text of the relevant provisions of section 29
of the Act is set out below at para 35.
15
Unlike the other five warrants, which were issued
on 12 August 2005 and executed on 18 August, this warrant was issued
by Ngoepe
JP on 26 August and executed on 8 September 2005.
16
Warrants (b), (c), (d) and (e) at
para 15 above.
17
That section is set out in full below at para 35.
18
Above at paras 8-10.
19
Annexure A of the warrant executed at Mr Hulley’s
office is described at para 18 above.
20
Above at paras 8-10.
This was the approach taken
by Hurt J in the Durban High Court, above n 3 at 489b of the SACR
and 108e of the All SA report, and
by the Supreme Court of Appeal in
the SCA Zuma judgment, above n 2 at para 19.
21
Above n 3.
22
2005 (5) SA 62
(SCA);
[2005] 1 All SA 149
(SCA)
at para 59.
23
It is reproduced above at para 17, and
appears
there as para 23 of annexure A of the four warrants executed at
premises connected to Mr Zuma. Para 2 of annexure A of
the warrant
executed at Mr Hulley’s office is identical, as is para 22 of
annexure A of the warrant executed at Thint’s
offices.
24
In terms of section 35(3) of the Constitution of
the Republic of South Africa, 1996.
25
Above n 4.
26
Above n 22.
27
Above n 22 at para 59.
28
I address the question of a preservation order
below at paras 216-24.
29
Section 34 of the Constitution provides:
“
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
30
Section 38 of the Constitution provides:
“Anyone listed in this section has the right to
approach a competent court, alleging that a right in the Bill of
Rights
has been infringed or threatened, and the court may grant
appropriate relief, including a declaration of rights. The persons

who may approach a court are—
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who
cannot act in their own name;
(c) anyone acting as a member of, or in the interest
of, a group or class of persons;
(d) anyone
acting in the public interest; and
(e) an association
acting in the interest of its members.”
31
These are set out in full above at paras 34-5.
32
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (2)
SACR 349
(CC);
2000 (10) BCLR 1079
(CC).
33
Section 39(2) provides:
“When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum
must promote the
spirit, purport and objects of the Bill of Rights.”
34
Above n 32
at paras 20, 22-3 and 26. See also
Van Rooyen and Others v The State and
Others (General Council for the Bar of South Africa Intervening)
[2002] ZACC 8
;
2002 (5) SA 246
(CC);
2002 (2) SACR 222
(CC);
2002 (8) BCLR 810
(CC) at para 88.
35
Above n 32
at para 20.
36
Id at para 55.
37
Id at para 21.
38
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR
39
(CC).
39
Id at para 24.
40
Above n 33
.
41
Above n 32 at para 54.
42
Id at para 53.
43
The full text of section 14 is as follows:
“Everyone
has the right to privacy, which includes the right not to have—
(a) their person or home searched;
(b) their property searched;
(c) their possessions seized; or
(d) the
privacy of their communications infringed.”
44
Bernstein and Others v Bester and Others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC);
1996 (4) BCLR 449
at para 77;
Hyundai
above n 32 at para 18.
45
Powell
a
bove n 22 at para 50.
46
See
Hyundai
above n 32 at para 18 and
Magajane v
Chairperson, North West Gambling Board and Others
[2006] ZACC 8
;
2006 (5) SA 250
(CC);
2006 (10) BCLR 1133
(CC) at paras 42-3.
47
Hyundai
above n
32 at para 20.
48
Id at para 52.
49
Id at paras 36-43.
50
Id at para 53.
51
Hunter v Southam Inc
[1984] 2 SCR 145
(SCC) at 161-2. See
also
Inland Revenue Commissioners and another v Rossminster Ltd
[1980] 1 All ER 80
(HL) at 87 and
Park-Ross and Another v The
Director: Office for Serious Economic Offences
1995 (2) SA 148
(C) at 169-71;
1995 (1) SACR 530
(C) at 552-4;
1995 (2) BCLR 198
(C)
at 218-20.
52
See
Hyundai
above n 32 at para 35, where the Court reasoned:
“Subsections
(4) and (5) of section 29 are concerned with authorisation by a
judicial officer before a search and seizure
of property takes
place. The section is an important mechanism designed to protect
those whose privacy might be in danger of
being assailed through
searches and seizures of property by officials of the State. The
provisions mean that an Investigating
Director may not search and
seize property, in the context of a preparatory investigation,
without prior judicial authorisation.”
53
South African Association of Personal Injury Lawyers v Heath and
Others
[2000] ZACC 22
;
2001 (1) SA 883
(CC);
2001 (1) BCLR 77
(CC) at para 34.
54
Above n 32 at para 52. As set out above in para 67 of this
judgment, the Court went on to consider whether the limitation of

the right to privacy was justifiable in the circumstances and
concluded it was.
55
Section 1 of the Act defines a “specified offence” as—
“any
matter which in the opinion of the head of an Investigating
Directorate falls within the range of matters as contemplated
in
section 7(1)(a)(aa) or any proclamation issued in terms of section
7(1)(a)(bb) or (1A)”.
This provision, read
with sections 7(1) and (1A) of the Act, makes it clear that what is
envisaged are offences committed in
an organised fashion and similar
serious offences.
56
See the text of section 29(1) above at para 35.
57
This procedure is briefly described and the relevant legislative
provisions are set out below at n 80.
58
Above n 22.
59
Id at para 59.
60
Act 3 of 2000.
61
See
Heath
above n 53 at para 34.
62
Id at para 39.
63
See
Hunter v Southam Inc
above n 51 at 162-4.
64
Above n 32 at para 52 (quoted in full above at para 85).
65
Contrast this approach to that under
section 21
of the
Criminal
Procedure Act 51 of 1977
, where courts faced with challenges to the
issue of search warrants have repeatedly held, when considering the
requirement that
an applicant for a search warrant establish, inter
alia, reasonable grounds for believing that an offence has been
committed,
that a court is not entitled to treat that requirement as
an objective jurisdictional fact. See, for example,
Mandela and
Others v Minister of Safety and Security and Another
1995 (2)
SACR 397
(W) at 404h-405b;
Van der Merwe v Minister van Justisie
en ‘n Ander
1995 (2) SACR 471
(O) at 476g-477i;
Control
Magistrate, Durban v Azanian Peoples Organisation
1986 (3) SA
394
(A) at 400F;
Ndabeni v Minister of Law and Order and Another
1984 (3) SA 500
(D) at 513C-D; and
Divisional Commissioner of SA
Police, Witwatersrand Area, and Others v SA Associated Newspapers
Ltd and Another
1966 (2) SA 503
(A) at 511G-512A. For a
different view, see
Highstead Entertainment (Pty) Ltd t/a ‘The
Club’ v Minister of Law and Order and Others
1994 (1) SA
387
(C) at 392I-393A;
1993 (2) SACR 625
(C) at 630c-e.
66
See
Giddey NO v J C Barnard and Partners
[2006] ZACC 13
;
2007
(5) SA 525
(CC);
2007 (2) BCLR 125
(CC) at para 19 and cases cited
there. See also
S v Basson
[2005] ZACC
10
;
2007 (3) SA 582
(CC);
2005 (12) BCLR 1192
(CC) at paras
110-1 and
Mabaso v Law Society, Northern Provinces, and Another
[2004] ZACC 8
;
2005 (2) SA 117
(CC);
2005 (2) BCLR 129
(CC) at para
20.
67
See
Media Workers Association of South Africa and Others v Press
Corporation of South Africa Ltd (‘Perskor’)
[1992] ZASCA 149
;
1992 (4)
SA 791
(A) at 800D-F, where Grosskopf JA, for a unanimous court,
noted as follows:
“Henning
‘Diskresie-uitoefening’ in
1968
THRHR
155
at 158
quotes the following observation concerning discretionary powers:
‘“[A]
truly discretionary power is characterised by the fact that a number
of courses are available to the repository
of the power”
(Rubinstein
Jurisdiction and Illegality
(1956) at 16).’
The
essence of a discretion in this narrower sense is that, if the
repository of the power follows any one of the available courses,
he
would be acting within his powers, and his exercise of power could
not be set aside merely because a Court would have preferred
him to
have followed a different course among those available to him.
”
(Emphasis added.)
See also
Bookworks
(Pty) Ltd v Greater Johannesburg Transitional Metropolitan Council
and Another
1999 (4) SA 799
(W) at 804G-808A;
[1999] 4 All SA
505
(W) at 509h-512j.
68
See
Giddey
above n 66 at para 19.
69
At para 55.
70
Above n 8 at paras 44-8.
71
The risk of evidence being removed or destroyed
is also a factor to be considered when determining the need for a
search warrant
in terms of section 29(5)(c) of the Act (as opposed
to issuing a summons under section 28), as discussed below at paras
118-34.
72
See, for example,
National Director of Public Prosecutions v
Kyriacou
2004 (1) SA 379
(SCA);
[2003] 4 All SA 153
(SCA) at
para 18;
National Director of Public
Prosecutions v Basson
2002 (1) SA 419
(SCA);
[2002] 2 All SA 255
(A) at para 21;
Frangos
v Corpcapital Ltd and Others
2004 (2)
SA 643
(T) at 649C-D;
[2004] 2 All SA 146
(T) at 151d-e; and
Schlesinger v Schlesinger
1979
(4) SA 342
(W) at 348E-349B.
73
Above n 22 at para 42.
74
Thint’s founding affidavit before the Pretoria High Court was
made on 9 December 2005, whereas its replying affidavit was
made on
27 March 2006, in which Ms Ferreira’s averment is first
mentioned.
75
In this regard, Thint placed great weight on the
fact that the state said in a letter that “Mr Moynot has at
all times offered
the investigating teams his characteristically
kind and affable co-operation.”
76
Below at
paras 186-90.
77
See above at para 35 for the full text of section 29(11).
78
See below at paras 183-5 for a discussion of the
common-law right to legal professional privilege.
79
See Van Winsen et al
Herbstein and Van Winsen: The Civil Practice
of the Supreme Court of South Africa
(4ed) (Juta, Cape Town
1997) 367 and
Schlesinger v Schlesinger
above n 72 at
348D-350C.
80
This section allows the summoning of a person to answer questions or
produce documents for the purposes of an investigation in
terms of
Chapter 5 of the Act (a process referred to interchangeably in this
judgment as a subpoena). S
ubsection (6) provides
as follows:
“For the purposes of an investigation—
(a) the Investigating Director may summon any person
who is believed to be able to furnish any information on the subject
of
the investigation or to have in his or her possession or under
his or her control any book, document or other object relating to

that subject, to appear before the Investigating Director at a time
and place specified in the summons, to be questioned or to
produce
that book, document or other object;
(b) the Investigating Director or a person designated
by him or her may question that person, under oath or affirmation
administered
by the Investigating Director, and examine or retain
for further examination or for safe custody such a book, document or
other
object: Provided that any person from whom a book or document
has been taken under this section may, as long as it is in the

possession of the Investigating Director, at his or her request be
allowed, at his or her own expense and under the supervision
of the
Investigating Director, to make copies thereof or to take extracts
therefrom at any reasonable time.”
81
Above n 65. See Chapter 2, which provides a range of measures by
which a search can take place. See for example section 21,
which
provides:
“(1) Subject to the provisions of sections 22,
24 and 25, an article referred to in section 20 shall be seized only
by
virtue of a search warrant issued—
(a) by a magistrate or justice, if it appears to such
magistrate or justice from information on oath that there are
reasonable
grounds for believing that any such article is in the
possession or under the control of or upon any person or upon or at
any
premises within his area of jurisdiction; or
(b) by a judge or judicial officer presiding at
criminal proceedings, if it appears to such judge or judicial
officer that any
such articles in the possession or under the
control of any person or upon or at any premises is required in
evidence at such
proceedings.
A search warrant issued under subsection (1) shall
require a police official to seize the article in question and
shall to
that end authorise such police official to search any
person identified in the warrant, or to enter and search any
premises
identified in the warrant and to search any person found
on or at such premises.
(3)
(a) A search warrant shall be executed by day, unless
the person issuing the warrant in writing authorizes the execution
thereof
by night.
(b) A search warrant may be issued on any day and
shall be of force until it is executed or is cancelled by the person
who issued
it or, if such person is not available, by a person with
like authority.
(4) A
police official executing a warrant under this section or section 25
shall, after such execution, upon demand of any person
whose rights
in respect of any search or article seized under the warrant have
been affected, hand to him a copy of the warrant.”
82
Above n 3 at 484d of the SACR and 104a-b of the All SA report.
83
Id a
t 484d-e of the SACR and 104b of the All SA
report.
This test was also quoted with approval in
Ferucci
and Others v Commissioner, South African Revenue Service, and
Another
2002 (6) SA 219
(C) at 235B-H.
84
Above n 3 a
t 484c of the SACR and 103i-j of the
All SA report.
85
[2002] 3 NZLR 780
(CA).
86
That is, section 98. Id at para 13.
87
Id at para 27.
88
Id at para 28.
89
Id at para 29.
90
Id at paras 23-6.
91
The full text of section 14 of our Constitution is set out above at
n 43.
92
See above at para 35 for the full text of section 29(5).
93
See above at paras 85-7.
94
The SCA Zuma judgment a
bove n 2 at para 104.
95
Id
.
96
For a similar approach reflecting concern for the rights
implications of a search, see
Descôteaux et al v
Mierzwinski and Attorney-General of Quebec et al
141 (1982) DLR
(3d) 590 (SCC) at 616-7.
97
See the SCA Zuma judgment above n 2 at para 103.
98
See above n 75.
99
Above n 10 at 213d-e and 217a-b of the SACR,
and 273h-i and 277c-d of the All SA
report.
100
Below at para 202.
101
Above n 22 at para 59.
102
I explain the technique of interpreting
legislation in conformity with the Constitution in some detail above
at paras 68-72.
103
I explain the relevant constitutional principles above at paras
73-8.
104
Above n 38 at para 24.
105
These are set out in full above at para 35.
106
Sections 26(1) and 29(1) make it clear that the powers of search and
seizure may only be exercised by an Investigating Director
or
someone acting under his or her written authority. Section 29(1)
also makes it clear that the powers may only be used for
purposes of
an “investigation” in terms of section 28(1) into a
“specified offence” (although the investigation
may be
extended to connected offences that are not specified offences and a
search and seizure operation may be conducted for
purposes of a
preparatory investigation). The definition of a “specified
offence” in section 1 read with sections
7(1) and (1A) makes
it clear that what is envisaged are investigations into organised
crime and other serious and complex offences.
107
Sections 29(1)(b) and (c) of the Act.
108
Above n 32.
109
Id at para 12.
110
See above at para 88, where I quote para 59 of
Powell
,
above n 22.
111
Id.
112
There is no reason to hold that this
intelligibility principle should impose exactly the same
requirements for all search and
seizure warrants, no matter the
statutory provision in terms whereof they are issued. In
Rudolph
and Another v Commissioner for Inland Revenue and Others
[1997] ZASCA 23
;
1997
(4) SA 391
(SCA) at 397, the Supreme Court of Appeal held
unanimously that cases on the validity of warrants under different
statutory provisions
are merely indicative of the general approach
of our courts, but “provide no further assistance.” It
held that it
is not useful to know that it has long been established
that the courts will refuse to recognise as valid a warrant the
terms
of which are “too general”, because the validity
of any particular warrant “can only be determined by reference

to the terms of the [empowering] section itself”.
The majority in the SCA Zuma judgment
adopted this approach, above n 2 at para 75, where it held:
“The
proper starting point, in my view, is not with pre-conceived ideas
of what a warrant must contain, whether drawn from
other cases or
otherwise, but rather with construing the particular authorising
statute to see what its criteria are.”
I agree, except to emphasise the duty
of courts, when interpreting the authorising statute, to promote the
spirit, purport and
objects of the Bill of Rights in terms of
section 39(2) of the Constitution.
113
See section 39(2) of the Constitution, above n
33.
114
Which has now been replaced by the
Prevention and
Combating of Corrupt Activities Act 12 of 2004
.
115
Corruption is defined in s
ection 1(1) of the
Corruption Act 94 of 1992 as follows:
“1(1) Any person―
(a) who corruptly gives or offers or agrees to give
any benefit of whatever nature which is not legally due, to any
person upon
whom―
(i) any power has been conferred or who has been
charged with any duty by virtue of any employment or the holding of
any office
or any relationship of agency or any law, or to anyone
else, with the intention to influence the person upon whom such
power
has been conferred or who has been charged with such duty to
commit or omit to do any act in relation to such power or duty; or
(ii) any power has been conferred or who has been
charged with any duty by virtue of any employment or the holding of
any office
or any relationship of agency or any law and who
committed or omitted to do any act constituting any excess of such
power or
any neglect of such duty, with the intention to reward the
person upon whom such power has been conferred or who has been
charged
with such duty because he so acted; or
(b) upon whom any power has been conferred or who has
been charged with any duty by virtue of any employment or the
holding of
any post or any relationship of agency or any law and who
corruptly receives or obtains or agrees to receive or attempts to
obtain
any benefit of whatever nature which is not legally due, from
any person, either for himself or for anyone else, with the
intention—
(i) that he should commit or omit to do any act in
relation to such power or duty, whether the giver or offeror of the
benefit
has the intention to influence the person upon whom such
power has been conferred or who has been charged with such duty, so

to act or not; or
(ii) to be rewarded for having committed or omitted to
do any act constituting any excess of such power or any neglect of
such
duty, whether the giver or offeror of the benefit has the
intention to reward the person upon whom such power has been
conferred
or who has been charged with such duty, so to act or not,
shall
be guilty of an offence.”
Fraud
is defined by Burchell in
Principles of
Criminal Law
(3ed) (Juta, Cape Town 2005) 833 as follows
:
“Fraud
consists in unlawfully making, with intent to defraud, a
misrepresentation which causes actual prejudice or which
is
potentially prejudicial to another.”
Money laundering is defined in
section 4
of the
Prevention of Organised Crime Act 121 of 1998
as
follows:
“Any person who knows or ought reasonably to
have known that property is or forms part of the proceeds of
unlawful activities
and—
(a) enters into any agreement or engages in any
arrangement or transaction with anyone in connection with that
property, whether
such agreement, arrangement or transaction is
legally enforceable or not; or
(b) performs any other act in connection with such
property, whether it is performed independently or in concert with
any other
person, which has or is likely to have the effect—
(i) of concealing or disguising the nature, source,
location, disposition or movement of the said property or the
ownership thereof
or any interest which anyone may have in respect
thereof; or
(ii) of enabling or assisting any person who has
committed or commits an offence, whether in the Republic or
elsewhere—
(aa) to avoid prosecution; or
(bb) to remove or diminish any property acquired
directly, or indirectly, as a result of the commission of an
offence,
shall
be guilty of an offence.”
Tax offences have various
definitions.
116
The texts of the warrants are set out above at
paras 16-9.
117
A point made by Lord Diplock in
Inland
Revenue Commissioners and another v Rossminster Ltd
,
above n 51 at 92c-d.
118
Above n 22.
119
See the discussion in
Powell
,
id, at paras 61-2 of that judgment.
120
See above at paras 138-50.
121
Id.
122
At
paras 208-12.
123
See Zeffertt et al
The South African Law of Evidence
(formerly Hoffmann and Zeffertt) (LexisNexis Butterworths, Durban
2003) 557-8 for a discussion of the possibility that the right
to
legal professional privilege has crystallised into an implicit
constitutional right.
124
See Schwikkard et al
Principles of Evidence
(2ed) (Juta, Cape
Town 2002) 135-7 where the
requirements are set
out as follows: The legal advisor must have been acting in a
professional capacity at the time; the advisor
must have been
consulted in confidence; the communication must have been made for
the purpose of obtaining legal advice; the
advice must not
facilitate the commission of a crime or fraud; and the privilege
must be claimed.
125
See the discussion of the history and rationale
of the right to privilege in Zeffertt et al, above n 123 at 558-70.
126
The judgment of Hurt J, above n 3 at 490g-i of
the SACR and at 110 of the All SA report, emphasised this point, in
my view correctly.
127
See Schwikkard, above n 124 at 134-5, where reference is made to the
common-law rule and
section 201
of the
Criminal Procedure Act, above
n 65, which provides:
“No
legal practitioner qualified to practise in any court, whether
within the Republic or elsewhere, shall be competent,
without the
consent of the person concerned, to give evidence at criminal
proceedings against any person by whom he is professionally
employed
or consulted as to any fact, matter or thing with regard to which
such practitioner would not on the thirtieth day of
May, 1961, by
reason of such employment or consultation, have been competent to
give evidence without such consent: Provided
that such legal
practitioner shall be competent and compellable to give evidence as
to any fact, matter or thing which relates
to or is connected with
the commission of any offence with which the person by whom such
legal practitioner is professionally
employed or consulted, is
charged, if such fact, matter or thing came to the knowledge of such
legal practitioner before he was
professionally employed or
consulted with reference to the defence of the person concerned.”
128
Bogoshi v Van Vuuren NO and Others; Bogoshi v
Director, Office for Serious Economic Offences, and Others
[1995] ZASCA 125
;
1996
(1) SA 785
(A) at 793D-E and
Sasol III
(Edms) Bpk v Minister van Wet & Orde
1991
(3) SA 766
(T) at 785-6.
129
International Tobacco Co (SA) Ltd v United
Tobacco Cos (South) Ltd (3)
1953 (4)
SA 251
(W) at 253-4.
130
International Tobacco Co (SA) Ltd v United
Tobacco Cos (South) Ltd (2)
1953 (3)
SA 879
(W) at 883.
131
Bogoshi
above n
128 at 793;
S v Lwane
1966
(2) SA 433
(A) at 438;
S v Van Vreden
1969 (2) SA 524
(N) at 529;
R
v Kweyi
1957 (3) SA 663
(EDL) at 664;
Schneider v Leigh
1955
2 QB 195
;
1955 2 All ER 173
(CA).
132
See, for example,
Le
Roux v Direkteur-Generaal van Handel en Nywerheid
1997 (4) SA 174
(T);
[1997] 2 All SA 636
(T);
1997 (8) BCLR 1048
(T)
and
Van Niekerk v City Council of
Pretoria
1997 (3) SA 839
(T) at
849-50;
[1997] 1 All SA 305
(T) at 314-5. But see
Jeeva
and Others v Receiver of Revenue, Port Elizabeth, and Others
1995
(2) SA 433 (SE).
133
Section 29(11)
is reproduced in full above at
para 35.
134
2002 SCC 61
;
[2002] 3 SCR 209
(SCC). In this case, attorney-client privilege was
claimed by a lawyer familiar with the documents as soon as the
police arrived
at the firm’s offices. The police had,
following the procedure set out in section 488.1 of the Canadian
Criminal Code,
sealed the documents that had summarily been
identified to them.
135
See
Bogoshi
above
n 128
.
136
As mentioned above, s
ection 488.1
provided
a sealing procedure for determining a claim of legal professional
privilege in respect of documents seized from an attorney’s

offices under a search warrant
.
137
However, the court was unanimous that one of the subsections of the
provision was unconstitutional in that it permitted the state
to
have preliminary access to the privileged documents to enable the
state to present argument on the question whether the documents
were
privileged or not.
138
Above n 134, specifically
Arbour J at para
21 and Le Bel J at para 59.
139
Id. Section 7 of the Canadian Charter provides:
“Everyone
has the right to life, liberty and security of the person and the
right not to be deprived thereof except in
accordance with the
principles of fundamental justice.”
140
In
Lavallee
,
section 488.1 of the Canadian Criminal Code was impugned on six
grounds:
1) the absence or inaction of the attorney during the
execution of the warrant could cause the client to forfeit his or
her legal
privilege;
2) the section required an attorney claiming privilege
during the execution of a warrant to name the client, yet the name
of
the client might itself be privileged;
3) the section did not require any notice to the
client to allow the client to claim privilege on his or her own
behalf subsequent
to the search;
4) the section set forth strict time limits after
which – in the absence of an objection – any material
seized must
be turned over to the state, notwithstanding that these
limits might prove insufficient in some circumstances to allow
affected
clients to claim their privilege;
5) post-seizure, the section did not afford a judge
overseeing the seized items a sufficient discretion, in the case of
default
by a privilege-holder to assert privilege in time, to
maintain nevertheless the confidentiality of the items; and
6) the section allowed the Attorney-General to view
the items in order to present arguments concerning their privileged
status,
which was itself a violation of privilege.
See
above n 134 at paras 26-33. No similar issues were raised by the
applicants in respect of the case now before us. Indeed
Mr Hulley
was present at the time of the search, and the name of the client
was known. Although no notice of the search of Mr
Hulley’s
offices was given to Mr Zuma, Mr Hulley was in a position to give
that notice immediately and did not complain
of absence of notice.
Grounds (4)-(6) have no application here because of the different
text of section 29(11). In contrast
to
Lavallee
,
the applicants here did not challenge the constitutionality of the
statute directly, nor did they suggest that the common-law
rules of
privilege require developing. As I have noted above at paras
186-90, section 29(11) primarily serves to accelerate
the judicial
resolution of any privilege claim made during the execution of a
warrant. The only issue in
Lavallee
which has relevance to this judgment is the question relating to the
need for the search warrant. The leading Canadian authority
on this
issue is
Descôteaux et al v
Mierswinski
and Attorney-General of Quebec et al
above n 96.
141
In that regard, the search was different to that conducted at Ms
Mahomed’s offices. See
Mahomed v National Director of
Public Prosecutions and Others
[2005] ZAGPHC 90
;
2006 (1) SACR 495
(W) at
508j-510g;
[2006] 1 All SA 127
(W) at 138-40. See also
National
Director of Public Prosecutions and Another v Mahomed
[2008] 1
All SA 181
(SCA) at paras 3-6.
142
Id.
143
See above at paras 24-33.
144
His conduct may be contrasted with that of Ms Mahomed who did claim
privilege during the search of her offices. See the High
Court
judgment in
Mahomed
above n 141 at 509e-510d of the SACR and
138i-139h of the All SA report.
145
Cine Films (Pty) Ltd and Others v Commissioner
of Police and Others
1972 (2) SA 254
(A) at 268D-F;
Divisional Commissioner
of SA Police, Witwatersrand Area and Others v SA Associated
Newspapers Ltd and Another
above n 65
at 513A-B.
146
See above n 3 at 493b-f of the SACR and 112b-f of
the All SA report.
147
The majority in the SCA Zuma judgment, above n 2,
did not consider the question of severance.
148
Id at para 51. In t
he
Ferucci
case, above n 83, which Hurt J purported to follow, the court found
that severance was not possible because the difficulties
flowing
from the defective terms and contents of the warrant permeated the
warrant as a whole, and not because of new constitutional

considerations which rendered the two Appellate Division cases no
longer applicable.
149
South African Liquor Traders Association and
Others v Chairperson, Gauteng Liquor Board and Others
[2006] 7
[2006] ZACC 7
; ;
2006 (8) BCLR 901
(CC) at paras 31 and 35.
150
This was the case in
Divisional
Commissioner of SA Police
above n 65
at 509F-G.
151
Above at paras 24-33
.
152
See above at paras 186-90.
153
The minority in the SCA Zuma judgment, above n 2, proposed an order
requiring the state to hand over to the registrar of the High Court
all the items seized, and requiring the registrar to make
and retain
copies of all such items, to return the originals to the applicants,
and to keep the copies accessible, safe and intact
under seal until
the state permitted their return, the conclusion of criminal
proceedings against the applicants envisaged in
Mr Du Plooy’s
affidavit, or the date the state decided not to institute such
proceedings. The proposed order was made
subject to any future
court order, the lawful execution of any search warrant obtained in
the future, and the duty of the applicants
or registrar to comply
with any lawful subpoena issued in the future. Finally, the
proposed order directed the state not to
take any steps to obtain
access to any of the retained or returned items, unless they gave
the applicants reasonable prior notice.
154
Section 172(1) provides:
“When deciding a constitutional matter within
its power, a court—
(a) must declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent of its
inconsistency;
and
(b) may make any order that is just and equitable,
including—
(i) an order limiting the retrospective effect of the
declaration of invalidity; and
(ii) an order suspending the declaration of invalidity
for any period and on any conditions, to allow the competent
authority
to correct the defect.”
155
The Supreme Court of Appeal handed down judgments in three cases
that arose from the state’s search and seizure operation:
the
two judgments against which the applicants now apply for leave to
appeal, and the judgment in
Mahomed
, above n 141. In the
first two judgments, the majority did not address the question of a
preservation order. In the
Mahomed
judgment, the court
divided four to one in favour of preserving the relevant seized
items, but the four judges comprising the
majority were unable to
agree on the reasoning for their shared conclusion.
156
Above n 141 at para 35.
157
Ndabeni v Minister of Law and Order
above n 65.
158
Above n 65.
159
1929 TPD 838.
160
See for example 5(2)
LAWSA
(2ed) at 192 and Kruger
Hiemstra’s
Criminal Procedure
Service Issue 1 (LexisNexis, Durban 2008) at
chapter 2, 2-11.
161
Above n
159 at 852.
162
See
Hertzfelder v Attorney-General
1907 TS 403
at 406, in
which unlawfully seized items were returned. The items returned
were not property in respect of which an offence
had been alleged to
have been committed. The court did not consider whether the return
of unlawfully seized items was an invariable
rule of the common law.
163
Above n 141.
164
Above n 154.
165
See, for example,
Fraser v Children’s Court, Pretoria
North, and Others
[1997] ZACC 1
;
1997 (2) SA 261
(CC);
1997 (2)
BCLR 153
(CC) at paras 45-52 and
Tsotetsi v Mutual and Federal
Insurance Company Ltd
[1996] ZACC 19
;
1997 (1) SA 585
(CC);
1996
(11) BCLR 1439
(CC) at paras 10-3.
166
Section 24 of the Canadian Charter provides:
“(1) Anyone whose rights or freedoms, as
guaranteed by this Charter, have been infringed or denied may apply
to a court
of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a
court concludes that evidence was obtained in a manner that
infringed or denied
any rights guaranteed by this Charter, the
evidence shall be excluded if it is established that, having regard
to all the circumstances,
the admission of it in the proceedings
would bring the administration of justice into disrepute.”
The leading case on
section 24(2) is
R v Collins
[1987] 1 SCR 265
(SCC).
167
See below at para 222.
168
(1988) 50 DLR (4th) 559.
169
Above n 141 at para 25.
170
Section 490(1) of the Canadian Criminal Code provides:
“Subject to this or any other Act of Parliament,
where, pursuant to paragraph 489.1(1)(b) or subsection 489.1(2),
anything
that has been seized is brought before a justice or a
report in respect of anything seized is made to a justice, the
justice
shall,
(a) where the lawful owner or person who is lawfully
entitled to possession of the thing seized is known, order it to be
returned
to that owner or person, unless the prosecutor, or the
peace officer or the person having custody of the thing seized,
satisfies
the justice that the detention of the thing seized is
required for the purposes of any investigation or a preliminary
inquiry,
trial or other proceeding; or
(b) where the prosecutor or the peace officer or other
person having custody of the thing seized, satisfies the justice
that
the thing seized should be detained for a reason set out in
paragraph (a), detain the thing seized or order that it be detained,

taking reasonable care to ensure that it is preserved until the
conclusion of any investigation or until it is required to be

produced for the purposes of a preliminary inquiry, trial or other
proceeding.”
171
Above at para 65.
172
See for example
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
[1996] ZACC 27
;
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at para
153;
Key v Attorney-General
[1996]
ZACC 25
;
1996 (4) SA 187
(CC);
1996
(6) BCLR 788
(CC) at paras 13-4; and
S
v Maputle
2003 (2) SACR 15
(SCA) at
para 11.
173
Bernstein and Others v Bester and Others
NNO
above
n 44 at para 67.
174
Modderfontein Squatter
s, Greater Benoni
City Council v Modderklip Boerdery (Pty) Ltd (Agri SA and Legal
Resources Centre,
Amici Curiae
);
President of the Republic of South Africa and Others v Modderklip
Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre,
Amici
Curiae
)
2004 (6) SA 40
(SCA);
2004 (8) BCLR 821
(SCA);
[2004] 3 All SA 169
(SCA) at paras 41-2.
175
S v Basson
above
n 66 at para 33;.
Hyundai
above n 32 at paras 53-4;
Key v
Attorney-General, Cape Provincial Division
above n 172 at paras 13-4;
S v
Motloutsi
1996 (1) SA 584
(C) at
590A-592G;
1996 (2) BCLR 220
(C) at 226-8;
[1996] 1 All SA 27
(C) at
33-5;
1996 (1) SACR 78
(C) at 84-6.
1
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);
2000 (2) SACR 349
(CC);
2000 (10)
BCLR 1079
(CC) (
Hyundai
) at para 1.
2
Act 32 of 1998.
3
Above n 1
at para 55.
4
Id
at para 58.
5
Id
at para 54.
6
Thint (Pty) Ltd and Others v National Director
of Public Prosecutions and Others
Case
No 268/2006, 4 July 2006, Pretoria High Court, unreported
;
Mahomed v National Director of Public Prosecutions and Others
[2005] ZAGPHC 90
;
2006 (1) SACR 495
(W);
Zuma and Another v National Director of
Public Prosecutions and Others
2006 (1) SACR 468
(DCLD);
[2006]
2 All SA 91
(D).
7
Powell NO and Others v Van der Merwe NO and Others
2005
(5) SA 62
(SCA);
[2005] 1 All SA 149
(SCA) (
Powell
).
8
See for example above n 1 at paras 4-10 and 31-3.
9
Above n 2 section 28(1).
10
Id at section 7(1)(a)(aa) and (bb).
11
Id at section 28(2).
12
Id at section 28(13).
13
Id at section 28(6)(a).
14
Id.
15
Id.
16
Id at section 28(6)(b).
17
Id at section 28(8)(a).
18
Id at section 28(8)(b).
19
Id at section 28(10)(a).
20
Id at section 28(10)(b)(i).
21
Id at section 28(10)(b)(ii).
22
Id at section 28(10)(c)(i).
23
Id at section 28(10)(c)(ii).
24
Id.
25
Id at section 41(2).
26
Id at section 29(1).
27
Id.
28
Id at section 29(1)(a).
29
Id at section 29(1)(b).
30
Id at section 29(1)(c).
31
Id at section 29(1)(d).
32
Id.
33
Id at section 29(12)(b).
34
Id.
35
Id at section 29(12)(a).
36
Id at section 29(3).
37
Id at section 29(4).
38
Id at section 29(5)(a).
39
Id at section 29(5)(b).
40
Id at section 29(5)(c).
41
Id at section 29(5).
42
Id at section 29(10)(a)(i).
43
Id at section 29(10)(a)(ii)(bb).
44
Id at section 29(11).
45
Id.
46
Id at section 28(6)(a).
47
Id at section 28(6)(b).
48
Id at section 29(1), (4) and (5).
49
Id at section 28(10) and section 29(12) read with section 41(2).
50
Id at section 29(12)(a).
51
Above n 1
at para 11.
52
Id
at para 36.
53
Id at para 37.
54
Id at para 36.
55
Id at para 37.
56
Zuma and Another v National Director of Public Prosecutions and
Others
above n 6 at 484a-g of the SACR; All SA report at 104a-d
and
Thint (Pty) Ltd and Others v National
Director of Public Prosecutions and Others
above n 6 at 16.
57
Section 39(2) of the Constitution. See also above n 1
at
paras 21-6.
58
Section 36(1) of the Constitution.
59
Above n 1 at para 38.
60
Id.
61
Above n 1 at paras 38 and 40.
62
Above n 1 at para 55.
63
Above n 2 at section 29(10).
64
Above n 1 at para 53.
65
Id at para 54.
66
Zuma and Another v National Director of Public Prosecutions and
Others
above n 6 at 484d-f of the SACR; All SA report at 104a-c.
67
Id at 484b-c of the SACR; All SA report at 103h-i.
68
Id
at 484c of the SACR; All SA report at 103i-j.
69
Id at 484d-e of the SACR; All SA report at 104a-b.
70
Thint (Pty) Ltd and Others v National Director
of Public Prosecutions and Others
above n 6
.
71
Id
at 16.
72
National
Director of Public Prosecutions v Zuma
[2007] SCA 137 (RSA), 8 November 2007, unreported at
para
103.
73
Id at para 104.
74
S v Manamela and Another (Director-General of Justice
Intervening)
[2000] ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR
491
(CC) at para 66.
75
Tranz Rail Ltd v Wellington District Court
[2002] 3 NZLR 780
(CA) (
Tranz Rail
).
76
Section 98A(2) states:
“A District Court Judge, or Justice, or a Court
Registrar (not being a constable) who is satisfied on application
made
on oath by a person who is authorised under subsection (1) of
this section that there are reasonable grounds to believe that it
is
necessary for the purpose of ascertaining whether or not a person
has engaged in or is engaging in conduct that constitutes
or may
constitute a contravention of this Act, not being a contravention of
section 99A of this Act, for an employee of the Commission
to search
any place may, by warrant, authorise that employee to search a place
specified in the warrant.”
77
Section 98 of the Commerce Act states:
“Where the Commission considers it necessary or
desirable for the purposes of carrying out its functions and
exercising
its powers under this Act, the Commission may, by notice
in writing served on any person, require that person—
(a) To furnish to the Commission, by writing signed by
that person or, in the case of a body corporate, by a director or
competent
servant or agent of the body corporate, within the time
and in the manner specified in the notice, any information or class
of
information specified in the notice; or
(b) To produce to the Commission, or to a person
specified in the notice acting on its behalf in accordance with the
notice,
any document or class of documents specified in the notice;
or
(c) To appear before the Commission at a time and
place specified in the notice to give evidence, either orally or in
writing,
and produce any document or class of documents specified in
the notice.”
78
Section 103(1)(a) and (b) of the Commerce Act.
79
Id.
80
Id at section 103(4).
81
Above n 75
at para 6.
82
Id at para 3.
83
Id at para 27. Section 98 of the Commerce Act.
84
Id at para 28.
85
Id at para 29.
86
Id.
87
Id at para 32.
88
Id at paras 28 and 30.
89
Id at para 30.
90
Id.
91
Id.
92
Van Winsen & Thomas
The Civil Practice of the Superior Courts
in South Africa
(2ed) (Juta, Johannesburg 1973) at 94. See also
Schlesinger v Schlesinger
1979 (4) SA 342
(W) at 348F-H;
MV Rizcun Trader(4) MV
Rizcun Trader v Manley Appledore Shipping Ltd
2000 (3) SA 776
at
794D-E;
Reilly v Benigno
1982 (4) SA 365
(CPD) at 370D-E;
Rosenberg v Mbanga (Azaminle Liquor (Pty) Ltd Intervening)
1992 (4) SA 331
(E) at 336H-J;
Cometal-Mometal v Corlana
Enterprises
1981 (2) SA 412
(W) at 414C-D;
Godlonton NO v
Ryan Scholtz & Co (Pty)
Ltd
1978 (4) SA 84
(E) at 87A-E;
Tranz Rail
above n 75 at paras 27-31.
93
National Director of Public Prosecutions v
Basson
2002 (1) SA 419
(SCA);
[2002] 2
All SA 247
(SCA)
at para 21 and
Tranz Rail
above n 75
at para 22.
94
A Firm of Solicitors v District Court at Auckland
1 NZLR
[2006] 586 CA at paras 41-6.
95
Above n 93
at para 21.
96
Id
at para 21.
97
Above n 7.
98
Above n 7 at paras 32 and 41.
99
Id
at para 42.
100
Above n 75
at para 21 and above n 94 at paras 41-6.
101
R v McColl
(1999) 17 CRNZ 136
(CA).
102
Id at para 20.
103
Above n 75 at para 22.
104
Id at para 23.
105
Id.
106
Above n 93 at para 21.
107
Above at para 104.
108
Above n 7
at para 42.
109
Id.
110
Above n 101 at para 20.
111
Above n 93 at
para 21.
112
Marshall v Marshall (Pty) Ltd and Others
1954 (3) SA 571
(N)
at 576B-D;
Sigaba v Minister of Defence and Police and Another
1980 (3) SA 535
(TSC) at 550F-G;
Bangtoo Bros and Others v
National Transport Commission and Others
1973 (4) SA 667
(N) at
680A-B.
113
See above n 1
at para 38.
114
Id.
115
Above n 75
at para 22.
116
Above n 93
at para 21.
117
Above n 75 at para 23.
118
Id.
119
Zuma and Another v National Director of Public Prosecutions and
Others
above n 6 at 486c-d of the SACR; All SA report at 105h-i.
120
Id at 486a-b of the SACR; All SA report at 105f-g.
121
R v Williams and Others
[2007] NZCA 52
(CA) at para 223(d)
and
R v McColl
above n 101 at para 30.
122
Above at para 130.
123
Carmichele v Minister of Safety and Security
(
Centre for
Applied Legal Studies Intervening
)
[2001] ZACC 22
;
2001 (4) SA
938
(CC);
2001 (10) BCLR 995
(CC) at para 54.