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[2014] ZAWCHC 127
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Craig Smith and Associates v Minister of Home Affairs and Others (12756/2014) [2014] ZAWCHC 127; 2015 (1) BCLR 81 (WCC) (4 August 2014)
IN THE
HIGH COURT OF SOUTH AFRICA
(
WESTERN
CAPE DIVISION, CAPE TOWN
)
CASE
NUMBER
: 12756/2014
DATE
:4
AUGUST 2014
In the matter between:
CRAIG SMITH AND
ASSOCIATES
…...........................................................................................................................................................................................................
Applicant
and
THE
MINISTER OF HOME
AFFAIRS
...................................................................................................................................................................................................
1
st
Respondent
THE
DIRECTOR-GENERAL –
DEPARTMENT
..................................................................................................................................................................................
2
nd
Respondent
OF HOME AFFAIRS
KWASINKOSI
WILBERFORCE MSIBI
...............................................................................................................................................................................................
3
rd
Respondent
MNCEDISI
NDLOVU
..............................................................................................................................................................................................................................
4
th
Respondent
THE
ADDITIONAL MAGISTRATE – DISTRICT
.................................................................................................................................................................................
5
th
Respondent
OF THE CAPE
J
U D G M E N T
DAVIS,
J
:
INTRODUCTION
In 1964
Professor Herbert Packer wrote a seminal article on the essentials of
the criminal justice system (1964 (113)
University
of Pennsylvania Law Review
1). In it he
spoke of the criminal justice system being located between two poles,
a crime control model and a due process model.
The crime
control model emphasised the greater protection which society
required from criminals and criminal activity and therefore
mandated
swifter and greater punishment of crimes in order to promote the
greater good of society.
By
contrast, the due process model ensures that each accused will
receive the best opportunity to prove his or her innocence. There
is
therefore a greater emphasis upon accountability of the police in
particular, and the entire criminal justice system in general
to
adhere to due process. In particular, searches and seizures would be
required to meticulously comply with these principles in
order
to ensure that the basic rights of an accused were preserved, even if
this outcome might jeopardise the ultimate objectives
of crime
control.
Packer’s
binary analysis is brought into sharp focus in this case. It is
triggered by an urgent application
inter
alia
for the setting aside of two
warrants, purportedly issued by the fifth respondent, in terms of
section 33(5) of the Immigration
Act 13 of 2002 (“The Act”)
on 18 July 2014 and for the return of files, computers seized during
a raid on the applicant’s
premises. It is common cause that the
raid took place upon an attorney’s practice on Friday
afternoon/evening of 18 July
2014.
The
applicant has alleged that not only was the search and seizure
operation unlawful under the Republic of South Africa Constitution
Act 108 of 1996 (‘the Constitution’), but so too were the
warrants which justified the operation.
First
to fourth respondents have opposed the relief sought and have filed
an answering affidavit in which they set out the reasons
for this
opposition.
It
therefore is required of this Court to engage with the considerable
body of
jurisprudence
,
which has emanated recently with regard to questions of warrants,
searches and seizures.
THE
LAW RELATING TO WARRANTS
It is
now trite law that all search and seizure operations and warrants
must take place within the terms of the framework of rights
which
were entrenched in the Constitution. In
Minister
of Safety and Security v Van der Merwe and Others
2011 (5) SA 61
(CC) Mogoeng, J (as he then was) said on behalf of a
unanimous Constitutional Court at para 21:
“
Search
and seizure warrants, by their very nature, implicate at least two
constitutional rights, namely the right to dignity and
privacy.
It follows therefore that constitutional issues of significance arise
in this matter”.
Section
14 of the Constitution, which has been invoked repeatedly during the
present dispute, provides thus:
“
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 communication
infringed”.
In
Mystry v Interim-Medical and Dental
Council South Africa and Others
1998
(4) SA 127
(CC) at para 25, Sachs, J said:
“
The
existence of safeguards to regulate the way in which state officials
may enter the private domains of ordinary citizens is one
of the
features that distinguish a constitutional democracy from a police
state. South African experience has been notoriously
mixed in this
regard. On the one hand there has been an admirable history of
strong statutory controls over the powers of
the police to search and
seize. On the other, when it comes to racially discriminatory laws
and security legislation, vast and
often unrestricted discretionary
were conferred on officials and police. Generations of
systematised and egregious violations
of personal privacy,
established norms and disrespect for citizens that seeped generally
into the public administration and promoted,
amongst the great many
officials, habits and practices inconsistent with the standards of
conduct now required by the Bill of Rights.
Section 13 (the
privacy in the ‘interim’ Constitution) accordingly
requires us to repudiate the past practices as repugnant
to the new
constitutional values, whilst at the same time reaffirming and
building on those that are consistent with these values”.
Closer
to the present dispute, in
Thint (Pty)
Ltd v National Director of Public Prosecutions and Others
;
Zuma v National Director of Public
Prosecutions and Others
2009 (1) SA 1
(CC) at para 76, Langa, CJ said:
“
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. These rights flow from
the value
placed on human dignity by the Constitution. The courts
therefore jealously guard them by scrutinising search warrants
‘with
rigour and exactitude’”.
It is
manifestly clear from these
dicta
that our courts are keenly cognisant of the due process orientated
provisions of the Constitution.; provisions that were designed
to
proclaim as boldly as possible: never again will our society revert
to the jackboot, the unaccountable bureaucrat or the official
for
whom legal process is nothing more than irritant. Recall for
example the dark days of apartheid when the security police
were at
liberty to conduct themselves with brutal impunity, including in one
case searching for documents of a privileged nature
from a law firm.
See
Cheadle Thompson and Haysom and
Others v Minister of Law and Order and Others
1986 (2) SA 264
(T).
In that
case a search warrant was issued in terms of section 21 of the
Criminal Procedure Act 51 of 1997, which authorised seizure
of a
“written statement made by one M”. The document
seized in purported compliance with the warrant was one
in respect of
which attorney and client privilege manifestly applied. It was
a typed transcript of notes made in the course
of a consultation
between an article clerk employed by a firm of attorneys and a
prospective witness. The document was clearly
generated in
contemplation of legal proceedings. The legal proceedings were
instituted by the second applicant who had instructed
her attorneys
to institute a civil claim arising from the death of her husband
against the Minister of Law and Order and any other
person who might
have been legally liable for the death.
That
death, to further record our dark past, had taken place after M’s
husband had been arrested in terms of section 50 of
the Internal
Security Act 74 of 1982. He had then suffered injuries which
resulted in his being hospitalised. He died
shortly
thereafter. M was determined to find justice, at least by way
of civil proceedings. The security police were
determined to
subvert these proceedings.
The
question that arose before the Court concerned the effect and
validity of the warrant. The Court found, upon a narrow
construction of the warrant, that the latter had not authorised
seizure of the document in question, the transcript not have then
been read to the witness and she had not been invited to check it for
accuracy and acknowledge it to be her statement. It
could
therefore not qualify “as a written statement as set out in the
warrant”.
The following
dicta
by Coetzee, J are of considerable relevance:
“
To
regard the document present in issue as “a written statement by
one Anna Mnguni” is to my mind not merely a very
liberal
interpretation of a search warrant. It is an impossible
interpretation. It cannot be described as anything
other than
simply notes made by an attorney during a consultation with the
witness ... when in future the police intend to seize
similar
material they should, before taking it away, afford the attorney or
client concerned the opportunity to apply to Court
to set aside the
warrant as it is by no means clear that the law is correctly set
force in Andresen’s case” at 283.
The
significance of this conclusion will become apparent later in this
judgment. The control of warrants and the
jurisprudence
thereof of course is now governed, as I have mentioned, by the
Constitution. In
Van der Merwe’s
case
supra,
the Constitution dealt with this issue in some detail. Of
particular significance is the following passage from Mogoeng,
J’s
judgment:
“
All
law abiding citizens of this country are deeply concerned about the
scurge of crime. In order to address this problem
effectively,
every lawful means must be employed to enhance the capacity of the
police to root out crime or at least reduce it
significantly.
Warrants issued in terms of S21 of the CPA are important weapons
designed to help the police to carry out
efficiently their
constitutional mandate of, amongst others, preventing, combating and
investigating crime. In the course
of employing this too, they
inevitably interfere with the equally important constitutional rights
of individuals who are targeted
by these warrants”. Para 35
It is
apparent that the learned Judge of the Constitutional Court was
acutely aware of the difficulty that courts encounter in balancing
Packer’s crime control and due process models. In dealing
with the safeguards, to which reference had been made, Mogoeng,
J
said the following at paras 36 to 37:
“
Safeguards
are therefore necessary to a meliorate the effect of this
interference. This they do by limiting the extent to
which
rights are impaired…These safeguards are first, the
significance of vesting the authority to issue warrants in judicial
officers; second, the jurisdictional requirements of the issuing of
warrants; third, the ambit of the terms of the warrants and;
fourth,
the bases on which a court may set warrants aside”.
Following
the earlier judgment in
Thint
supra
at
paras 91 to 93; 146; 151-152, the Constitutional Court in
Van
der Merwe
further stated in the context
of search warrants issued in terms of section 21 of the Criminal
Procedure Act, that the safeguards
provided by search warrants should
require such warrants to be reasonably intelligible. At para 55
the Court found that an
intelligible and valid search warrant is one
that:
(a)
“
States the statutory provision in
terms of which it is issued.
(b)
Identifies the searcher.
(c)
Clearly mentions the authority it confers
upon the searcher.
(d)
Identifies the person, container or
premises to be searched.
(e)
Describes the article to be searched for
and seized with sufficient particularity.
(f)
Specifies the offence which triggered the
criminal investigation and known as suspected offender”.
In
addition the Court said the following at para 56:
“
The
guidelines to be observed by a Court, considering the validity of the
warrants include the following:
(a)
The person issuing the warrant must have
authority and jurisdiction.
(b)
The person authorising of the warrant must
satisfy herself that the affidavit contains sufficient information on
the existence of
the jurisdictional facts.
(c)
The terms of the warrant must be neither
vague nor overbroad.
(d)
A warrant must be reasonably intelligible
to both the searcher and the searched person.
(e)
The court must always consider the validity
of the warrants with a jealous regard for the searched person’s
Constitutional
rights and;
(f)
The terms of the warrant must be construed
with reasonable strictness”.
I agree
with Mr Katz, who appeared together with Mr Brink on behalf of the
applicants, that while these principles referred primarily
to section
21 of the Criminal Procedure Act and
Thint
case to section 29 of the National Prosecuting Act 32 of 1998, there
is no reason why the same principles should not apply to warrants
issued and executed in terms of the Act. It is to that Act that
I must now turn.
THE
IMMIGRATION ACT
Section
33 of The
Immigration Act, to
the extent that it is relevant to these
proceedings, provides thus;
“
5.
In the pursuance of this Act, an immigration officer may obtain a
warrant to:
(a) Enter or search any premises for a person or thing or to make
enquiries, including the power to:
(i) Examine anything found in or upon such premises;
(ii) Request from the person who is in control of such premises or in
whose possession or under whose control anything is when
it was
found, or is upon reasonable grounds believed to have information
with regard to such thing, an explanation or information;
and
(iii) Make copies of or extracts from any such thing found upon or in
such premises …
(b) After having issues a receipt in respect thereof, seize and
remove documentation or any other thing which:
(i) Is concerned with or is upon reasonable grounds suspected of
being concerned with any matter which is the subject of any
investigation
in terms of this Immigration Act; or
(ii) Contains or is on reasonable grounds suspected to contain
information with regard to such matter, provided that:
(aa) Anything to seize shall be returned in good order as soon
as possible after the purpose of its seizure has been accomplished;
and
(bb) The person from whom a book or document has been taken shall be
allowed reasonable access, including the right to make copies
at his
or her expense.
6. A warrant referred to in subsection (5) shall be issued by a
magistrate of a court, which has jurisdiction iin the area where
the
premises in question are situated and only if it appears to the
magistrate from information under oath, that there are reasonable
grounds for believing that the thing mentioned in subsection (5) is
upon or in such premises and shall specify which of the Acts
mentioned in subsection (5) may be performed there under by the
person to whom it is issued.
(8) Subsection (8) provides a person executing a warrant in terms of
the 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…; and
(b)
Supply such person at his request with particulars regarding his or
her authority to execute such a warrant.”
Recalling
the
dictum
of Coetzee, J in
Cheadle’s
case
supra
,
to which I have made reference, subsection 11 is of particular
relevance to these proceedings and to the conduct of searches under
the Act in general. It provides:
“
If
during the execution of a warrant or the conducting of a search in
terms of the section, a person claims that a thing found on
or in the
premises concerned contains privileged information, and refuses its
inspection or removal, the person executing the warrant
or conducting
the search shall, if he or she is of the opinion that the thing
contains information which is relevant to the investigation,
and that
such information is necessary for the investigation, request a person
designated by a Court which has jurisdiction to
seize and remove that
thing for safe custody until a court has made a ruling on the
question whether the information is privileged
or not.
Subsection
14 provides in exercising powers under the section, an immigration
officer shall clearly identify him or herself as such
by means of
adequate identification”.
So much
for the legal position in respect of searches and seizures and the
contents of the Act which is the subject of this dispute.
There
is a further question raised forcibly in this case. Applicant
is an attorney. It was his offices that were raided
by the
third respondent. Quite obviously in this case the principle of legal
privilege loomed large and should have loomed large
from the
commencement of the proceedings with the issuing of the warrant.
I am therefore required, albeit briefly, to examine
the law relating
to legal privilege.
LEGAL
PROFESSIONAL PRIVILEGE AND WARRANTS
Under
the common Law, communications between a lawyer and a client may not
be disclosed without the client’s consent.
It has been
recognised for a long time as central to the right of a client to
consult freely with his legal adviser that privilege
of this
particular kind should be central to fair legal process. In
Euro Shipping Corporation of Monrovia v
Minister of Agriculture Economics and Marketing and Others
1979 (1) SA 637
(C) at 643, Friedman, J (as he then was) described
privilege as a fundamental right.
The
point was taken up further in
S v
Sefatsa
1988 (1) SA 868
(A) at 886.
The then Appellate Division recognised that legal professional
privilege is not merely an evidential rule but
is a fundamental right
derived from the requirements of procedural justice. The right
was amplified by Botha, JA in his judgment
in
Sefatsa
when the learned Judge of Appeal cited
from an Australian decision in
Baker v
Campbell
(cited in 885-886) to the
following effect:
“
The
privilege extends beyond communications made for the purpose of
litigation, to all communications made for the purpose of giving
or
receiving advice and this extension of the principle makes it
inappropriate to regard the doctrine as a mere rule of evidence.
It is a doctrine which is based upon the view that confidentiality is
necessary for proper functioning of the legal system and
nor merely a
proper conduct of particular litigation ...
Speaking
for myself and with the greatest respect I should have thought it
evident that communications between legal advisers and
their clients
are subject to compulsory disclosure in litigation, civil or
criminal, there would be a restriction, serious in many
cases, upon
the freedom with which advice or representation could be given or
sought. If a client cannot seek advice from
his legal advisor,
confident that he is not acting to his disadvantage in doing so, then
his lack of confidence is likely to be
reflected in the instructions
he gives, the advice he is given and ultimately in the legal process
of which the advise forms part”.
What
bears emphasis, for at various times during these proceedings the
import thereof was not entirely grasped: the right is that
of the
client. It is the client ultimately who is entitled to a right
of privilege for without that right the client will
never be able to
obtain the level and degree of fairness in legal proceedings which
the courts have emphasised, particularly described
in the judgment of
Botha, JA in
Sefatsa
.
In both
Mohammed v National Director of Public
Prosecutions and Others
[2005] ZAGPHC 90
;
2006 (1) SACR
495
(W) at para 7 and
Thint
supra
at
para 184 there are further examinations of the legal, professional
privilege within the context of the Constitution. In
both cases
there is an emphasis placed on the importance of this privilege in
upholding the right to a fair trial, as guaranteed
in terms of
section 35 of the Constitution.
There
is further enlightment that can be obtained from a reference, albeit,
brief, to
Thint
.
Thint
concerned the execution of a search warrant in terms of section 29 of
the National Prosecuting Act 32 of 1998. In particular, section
29(11) provides that if privilege is claimed in respect of any 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, that a
court can decide
whether or not it is indeed privileged.
The
Court described the purpose of this section in para 192:
“
To
provide the State with a mechanism where privileged 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 Court
held further at para 193:
“
The
section came into operation whenever a claim of privilege is made
during the search and that ‘as soon as such 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)”.
With
this legal and legislative framework in mind, it is possible to turn
to the factual matrix which vexes the present dispute.
THE
FACTUAL BACKGROUND TO THIS CASE
Two
search and seizure warrants were issued on 18 July 2014. In the
first place it was to an entry and search warrant headed
with
reference to section 7(1)(g) and section 33(5)(a)(b) of the Act and
Regulation 27(6) thereto. That is warrant one.
There is a
further warrant: “a warrant for seizure and removal”,
headed with reference to sections 7(1)(g) and section
33(5)(c) of the
Act and Regulation 27(7), that is warrant two.
A
receipt of items seized was completed by third respondent who is
described as an assistant director in the Department of Home
Affairs
in terms of section 7(1)(v) and section 33(5)(c) and what is common
cause is at this stage a non-existent Regulation 27(7).
Section 7(1)(a) of the Act provides that the Minister may make
regulations relating to the powers and duties of The
Immigration
Act. New
immigration regulations came into force on 26 May
2014. It appears that those issued on 18 July 2014 were those
included
as annexures to the now repealed 2005 immigration
regulations, in particular
regulation 27(6)
and
27
(7).
Warrant
one empowered the third respondent to enter the premises of applicant
during the day, time “during the hours of 9h00
to 17h00”
to search for and to:
(1)
Interrogate any person found in on such
premises.
(2)
Examine anything in or upon such premises
as per annexure A, and;
(3)
Request from the person in charge anything
when if found an explanation or information pertaining to that thing
and make copies
of or extracts from any such thing found upon or in
such premises.
Annexure
A read:
(1)
Any existing or closed files of applicants
for work permits.
(2)
Any computers including laptops and
external hard drives.
Warrant
two empowered third respondent to enter the offices of the applicant
during the daytime between 09h00 and 17h00 to seize
and remove items
mentioned in the receipt to be handed to the person from which that
documentation or thing has been seized and
removed.
Respondent’s version for why it sought these warrants is
contained in the opposing affidavit of third respondent
to which I
have made reference. It is important for the resolution of this
dispute to examine third respondent’s affidavit
with some
care.
Third
respondent informs the Court as follows: during September/October
2013 the Department of Home Affairs was approached by an
investigative journalist team of Carte Blanche (I am advised that
this is a television program) with information pertaining to
fraudulent and unlawful activities of applicant which were performed
in his capacity as an attorney operating as Craig Smith and
Associates. Pursuant to this information, third respondent
informs the Court that the Department of Home Affairs launched
an
investigation into the unlawful activities of Smith, that is the
applicant.
The
investigative journalist team of Carte Blanche, according to third
respondent, cooperated and shared information with the Department
insofar as the investigation was concerned. According to third
respondent, the investigation against the applicant revealed
that he
would obtain general work permits for his client on the basis of
false and fraudulent documentation which he would prepare
and submit
to the Department of Home Affairs.
According
to third respondent, the applicant placed adverts in newspapers for
non-existent job vacancies, manufactured false qualifications
for his
clients, submitted false bank statements and produced employment
letters on a company letterhead of Oxen Information Technologies.
Third respondent avers that all of this activity was done in order to
mislead the Department into believing that applicant’s
clients
were employed by Oxen.
Third
respondent informs the Court that applicant would then submit the
names of certain people, together with their
curriculum
vitaes
, which he alleged had applied
unsuccessfully for the job vacancies which he advertised in
newspapers. He did this, according
to third respondent, to
create the false impression that certain persons had unsuccessfully
applied for the particular job whilst
his client was a successful
applicant.
He
would source these
curriculum vitaes
from online recruitment sites without knowledge, permission or
consent to the owners of these
curriculum
vitaes
. Third respondent
avers further that all of these fraudulent documents, false newspaper
adverts, false qualifications,
false employment letters, false bank
statements and falsely filed applications, together with the
curriculum vitaes
would then be attached to his client’s applications for general
work permits.
Third
respondent claims that, by using the names of these persons without
their knowledge, permission or consent applicant, beside
from
violating these people’s rights to privacy, acted fraudulently
with respect to the Department, in order to create the
impression
that his clients had met the requirements as prescribed by the Act
and which would then enable them to be issued with
general work
permits.
Third
respondent specifies, to some extent, the nature of the
investigations that third respondent then undertook. He informs
the Court that he obtained the company registration printout of
Oxen. He then visited an address at Century City and found
the
office from which Oxen was allegedly operating to be vacant.
During
his investigations he retrieved three applications prepared by
applicant for general work permits and in each of these applications
a general work permit was issued to the applicant on condition the
applicant takes up employment at Oxen. He also informs
the
Court that he enquired from other offices in the same business park
as Oxen had allegedly operated about the identity of this
business
but none of them knew anything about the company.
He
states further that he obtained statements from the allegedly
unsuccessful applicants in which they advised that they had never
applied for job vacancies at Oxen nor had they attended any job
interviews with the company. After establishing that Oxen
was
not operational, he then identified 13 persons who were granted
general work permits by the Department, subject to the condition
that
they take up employment at Oxen. He is still, according to this
affidavit, in the process of retrieving the relevant
files relating
to these persons.
On 16
July 2014 he arrested one of the persons who was issued with a
general work permit on condition that he was employed at Oxen.
This person’s application for a general work permit was
prepared, according to the third respondent, by applicant.
Although this person was granted a general work permit to work as an
IT specialist, he informed third respondent that he was not
qualified
as an IT specialist. He further indicated that he did not apply
for the post of an IT specialist nor was he interviewed
at Oxen.
He stated further that his lawyer, being applicant, obtained the
employment letter from Oxen and that the applicant
said that he knew
the director of Oxen. He concludes by stating that all this
information has been verified by his independent
investigations and
by statements obtained from other witnesses, including the person
arrested on 16 July 2014.
Insofar
as the warrants are concerned, third respondent informs the Court
that the warrant was issued at approximately 15h45 on
18 July 2014.
Most regretably, and I cannot emphasise this strongly enough, fifth
respondent who issued the warrants failed
to depose to an affidavit,
which would have greatly assisted the Court. This is most
unfortunate. Magistrates who issue
warrants are accountable and
I would have expected, at the very least, to have been furnished with
an affidavit which would have
assisted the Court considerably in
these proceedings. Regrettably it was not made available.
Third
respondent provides the following information regarding the
warrants. There are 13 various types of temporary residence
permits the Department may issue to foreigners. As the
information at third respondent’s disposal indicated that
applicant
was involved in fraudulent activities pertaining to general
work permits, the seizure and the removal warrant was limited to this
type of temporary residence permit. He further states that he
had no information as to when applicant commenced with this
fraudulent activities and he could not therefore limit the search to
a specific time period.
Furthermore,
as he did not know the names of all the persons under whose behalf
applicant had applied for general work permits,
he could not limit
the seizure and removal warrants to individual files. He was
able to identify and seize the files as a
result of having been
informed by a confidential source where to look for these files.
As a result, some 160 files were seized
from the offices of
applicant.
Insofar
as the seized computers are concerned, third respondent informs the
Court as follows: from the information at his disposal,
he avers that
it was clear that applicant was using computers to generate false
company letterheads, job advertisements and applications
and
curriculum vitae qualifications in respect of the applications for
work permits.
Information
at his disposal indicated that applicant has a template of the
letterhead of Oxen on his computer. The nature
of the
investigation as well as the variety of documents, which it is
alleged applicant had fraudulently produced, are such that
he could
not limit the search to a particular folder or computer. Even
if the warrant had been more specific with regard
to electronic data
to be searched and confiscated, this would have had no different
practical effect from what had transpired when
the applicant’s
offices were searched.
The
electronic data which is required is a class of information in
relation to the application for work permits. This class
of
data is contained amongst all the other electronic data and will have
to be identified, according to third respondent.
Even if the
warrants did not authorise the attachment of the computers but it
specified the electronic data to be searched for
and confiscated this
would not have availed, given applicant’s allegedly obstructive
attitude. He would not have identified
the relevant information
for downloading and printing.
Hence
the confiscation of the computers was required pending further
direction of the Court as to how the matter should be further
managed. He also makes the following claim:
“
I
may mention that all the seized files and computers have been sealed
and have been placed in the custody of the Cape Town Central
SAPS
under SAP13/325/2014 under Cape Town Central CAS 1007/07/2014”.
Significantly,
I did not take Mr Albertus, who appeared together with Ms Slingers on
behalf of the respondents, notwithstanding
the averments which I have
set out in detail, to contest applicant’s argument that the
warrants were invalid. It was
a concession wisely made because
there are at least three, possibly more, legal problems with the
warrants and the execution thereof
that are fatal to respondents
justification for the search, its conduct and the seizure.
In the
first place, the two sets of warrants as I have set them out, failed
to satisfy the intelligibility requirement as set out
in
Van
der Merwe
supra
,
read together with
Powell NO and Others
v Van der Merwe NO
2005 (1) SACR 317
(SCA) at para 59. In this case Cameron, JA (as he then was)
captured the core of the legal position thus:
“
These
cases establish this:
(a)
Because of the grave danger of misuse and
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 the 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 have
refused 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”.
Approached
on the basis of these
dicta
the warrants failed to describe the articles to be searched for and
seized with sufficient particularity, certainly insofar as
the
open-ended reference to “computers” is concerned.
Further, the warrants failed to specify clearly the offences
which
triggered the investigation. In summary, the warrants were
vague and overbroad. See in this particular connection
Sinai
Films (Pty) Ltd and Others v Commissioner of Police and Others
1972 (2) SA 254
(A);
Divisional
Commission of South African Police Witwatersrand Area and Others v
South African Associated Newspapers Limited and Another
1966 (2) SA 503
(A) at 512.
The
warrants were not reasonably intelligible to either the searchers or
the applicant. For example could it possibly have
been that all
the information on the applicant’s computers constituted part
of the search?
In
addition, as I have already indicated, the warrants failed to protect
professional, legal privilege.
That
brings me to the second difficulty which respondents encounter.
Section 33(11) of the Act specifically deals with the
problems of
privilege as encountered, for example in
Cheadle’s
case
supra
.
As I indicated earlier, it is regrettable that fifth respondent did
not depose to an affidavit explaining why, for example,
there was no
consideration given to the consequences of a search that was to take
place at an attorney’s office and why there
was no recourse to
the clear implications of section 33(11) of the Act, when it was
common cause that the search would take place
at an attorney’s
office and it was obvious that these were dangers of breach of legal
privilege.
Given
that the benefit of the right of privilege resides with the client,
it had not behove the respondents to claim that applicant’s
conduct at the search may have been tantamount to a waiver. I
do not need to parse the respective affidavits of applicant
and third
respondent to determine this particular question. It is manifestly
clear that legal privilege was compromised as a result
of the
search. As applicant informed the Court in his own affidavit,
he is the attorney for clients in proceedings still
pending before
this Court. See paragraph 17.2 of the founding affidavit.
Thirdly,
the warrants only identified third respondent as the person who was
authorised to do the search, yet clearly, as set out
in the founding
affidavit, there were other participants in the search.
According to applicant’s affidavit, despite
his repeated
protests and later protests by Mr Brink, junior counsel to applicant
in this case, regarding the privileged nature
of client files,
persons executing the warrants took client files out a cabinet and
proceeded, according to his affidavit, to read
through these files.
As Mr
Katz pointed out, in terms of section 33(5)(a), read with section 1,
section 33(2) and Regulation 32(1) of the Act, the provision
makes it
clear that the search and seizure powers under the section are
limited to “immigration officers”; that is
persons who
fulfilled the training requirements as listed in Regulation 32(1).
The presence of non-immigration officers as
described in the founding
affidavit, also constituted unlawful activity.
These
three reasons, as I have outlined them (and there may be more, but
here is no need for me to go further), result in a conclusion
that
the raid conducted at the applicant’s offices was in violation
of his constitutional rights and hence unlawful and invalid.
Of
that I have little doubt.
Earlier
I had mentioned that the third respondent suggested that all the
seized files and computers have been sealed. The
suggestion was
that, at this stage of proceedings, none of these documents had been
read, notwithstanding averments which are contained
in the
applicant’s affidavit. However, when third respondent
dealt with the question of professional privilege, a curious
passage
appears in the affidavit. It reads thus:
“
I
respectfully submit that the search and seizure process is not in any
way infringed upon professional, legal privilege to Smith
and/or his
clients. I say this for the following reasons; all of the
seized and confiscated files are not litigious matters
and/or matters
pertaining to pending legal proceedings in respect of which advice
was sought and gained”.
The
obvious question arises: how did he know they were not privileged
unless he had examined the files? Thus itself provides
room for
consternation with regard to respondent’s conduct.
What
now to do, becomes the critical question.
CONSEQUENCES
OF THE FOUNDING OF INDIVIDUALITY
Mr Katz
submitted that the arbitrary and what he described as “clearly
uncontrolled nature of the raid” conducted at
applicant’s
offices cannot in any way be condoned. As he stated, the
State must surely set an example for adherence
to constitutional
values. See
Mohammed and Another v
President of the Republic of South Africa and Others
[2001] ZACC 18
;
2001 (3) SA 893
(CC) at para 69:
“
South
Africa is a young democracy still finding its way to full compliance
with the values and ideas enshrined in the Constitution.
It is
therefore important that the State lead by example”.
Invoking
dicta
in
Reuters Group, PLCB Viljoen
2001 (12) BCLR 1265
(C) at paras 43 and 44 that “The
Constitution creates an ethos of accountability” and that the
rule of law and thus
the principle of legality powers the principle
that executive action cannot be arbitrary. Mr Katz submitted
that what he
considered to be the arbitrary and contentious attitude
of third respondent and others during the raid as described in the
founding
affidavit, together with the presence of members of
television media, who were already present upon respondents arrival
at applicant’s
offices on 18 July 2014 constituted conduct
reminiscent of “the rampant triumphalism” which had been
condemned in no
uncertain terms by the Supreme Court of Appeal in
Pretoria Port and Cement Company Ltd and
Another v Competition Commission and Others
2003
(2) SA 385
(SCA) at para 66.
In his
view, the conduct of the respondents could pass the level of that
which the applicant and other South Africans were entitled
to expect
from a public administration committed to adherence to our
Constitutional ethos.
This
set of submissions compels a careful consideration of what should be
the consequences visited upon the founding of unlawfulness
in respect
of the warrants and therefore the search. It brings us back to
Packer’s analysis of the criminal justice system.
Applicant
has shown that his rights to privacy and underlying right of dignity
had been breached as a result of invalid warrants
and the consequent
search. He has also shown that, notwithstanding the Act’s
recognition of privilege in terms of section
33(11), respondents had
breached legal privilege by the manner in which third respondent
comported himself pursuant to the search
together with a balance of
the search party.
There
is, as I have already indicated, a clear apprehension that third
respondent’s conduct has compromised the fundamental
right of
privilege. The conclusion that respondents have violated
applicant’s clients rights to legal privilege by
virtue of the
warrants, and particularly in respect of the seizure of computers,
which makes no reference to any criminal offence
or violation of the
Act, is coupled to a breach of applicant’s rights to privacy.
But as
was recognised in
Thint
supra
at
para 220, there are important public interest considerations with
which a Court must engage earnestly. To ignore the serious
allegations made by third respondent which I have set out in detail,
and to adopt an overly rigid approach to the consequences
of a breach
of a right, however important, no matter the seriousness of the
allegations of criminal behaviour, is to ignore the
role that Courts
play in respect of crime control, particularly in a country where the
scourge of crime threatens the very fabric
of our Constitution
ambitions.
It is
for this reason that Langa, CJ found in
Thint
supra
at
para 216-223 that section 172(1)(b) of the Constitution empowers a
Court to grant a preservation order. In the case the
Chief
Justice had in mind, this would require the State to hand over to the
Registrar of the High Court all the items seized and
require the
Registrar, to make and retain copies of all such items, to return the
originals to the applicant 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 and
envisaged, or the date the State decided not to institute such
proceedings.
Langa,
CJ concluded:
“
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
and reflects the inner core of the personal intimate sphere or where
there has been, particularly egregious conduct in
the execution of
the warrant, that a preservation order should not be granted”.
para 223.
I
accept that the present dispute triggers significant concerns
regarding the conduct of third respondent and indeed fifth respondent
as well as the nature of the search and seizure operation. But
were this Court to order the status quo to be restored without
more,
as urged upon me by Mr Katz, and the allegations contained in third
respondent’s affidavit were then to prove to be
accurate, a
significant danger would arise pursuant to the possible destruction
of the kind of evidence necessary to curb what
would then have been
proved to have been a egregiously criminal practice which would
compromise the very purpose of the Act itself.
On the
other hand, it is clear to me that the applicant must also be
afforded relief, to vindicate his privacy and to restore the
privileged nature of all documents and files as soon as possible.
Thus the balancing exercise indicated by Langa, CJ in
Thint
supra
must
give meaningful protection to the applicant, while exploring whether
the important public interests in respect of crime control
cannot
also be afforded protection. The essence of applicant’s
case is to suggest that the conduct was so egregious
that a
preservation order should not be granted.
There
is a dispute on the papers as to precisely how egregious third
respondent and his colleagues’ were during the search
in
question. There is no doubt that any search which takes place
as a result of unlawful conduct may be described as egregious,
but
clearly the Chief Justice had in mind in his careful assessment a
particular excessive form of conduct. I cannot simply
ignore
the detailed and serious allegations set out by third respondent in
his affidavit as a justification of respondent’s
conduct and
thus suggest that no Court should take account thereof in this
particular exercise of balancing.
Public
interest concerns are important. The order I propose making
seeks to find a way to achieve a balance of exercise, to
restore the
status quo ante
where there can be no proven or more accurately
prima
facie
breach of the public interest
whilst divining a reasonable means of safeguarding the public
interests in dealing with crime control.
Proportionality,
itself, is a difficult exercise for courts. Aharon Barak in
Proportionality: Constitutional Rights
and their Limitations
at 543 captures
the point which is exercised my mind in this connection:
“
The
principled balancing formula must first and foremost fulfil the basic
balancing rule. That basic rule of balancing compares
the
marginal social importance of the benefit gained by the limiting law
and the marginal social importance preventing the harm
to the
Constitutional right. The principle balancing formula would
translate this abstract notion into a formula comparing
the marginal
social importance of the specified limited right on the one hand and
the marginal social importance of specific legislative
purpose on the
other”.
It is
this exercise that I have sought to undertake in the crafting of the
order that I propose to make. The effect of the
order can
perhaps be summarised thus: within a maximum of 72 hours from the
granting of this order applicant shall be restored
into possession of
all the files which had been seized and within the maximum of 5 days
be restored to possession of all of his
computers.
While
this is not a perfect solution, it does not preclude the applicant
from pursuing further relief against the respondent in
the event that
the allegations set out in third respondent’s affidavit prove
to be unjustified and false which, in turn,
would trigger a potential
claim for significant damages which would then have been suffered by
the applicant. That however,
as I emphasised repeatedly during
the proceedings, is not a matter before this Court.
I have
given considerable consideration to Mr Katz’s submission as to
the appropriateness of an order of punitive costs against
the
respondent, given my finding that the warrants should be set aside.
My difficulty is the absence of an affidavit from
fifth respondent
and accordingly the problem of determining whether the respondents in
this case acted in bad faith. I cannot
make a determination on
these papers. I have already accepted that the averments in the
affidavit are of so serious a nature that
they are deserving of some
protection which I have recognised in this order.
I am
also comforted by the possibility that should the applicant be able
to show that none of the justifications, which are set
out in the
third respondent’s affidavit, be based on fact or law, there
are clear alternative remedies available for him
to recoup any
damages that he may have been suffered.
The
order that I will therefore make is as follows:
(1)
THE ENTRY AND SEARCH WARRANT AND
THE SEIZURE AND REMOVAL WARRANT (“THE WARRANT”) ISSUED
UNDER THE HAND OF FIFTH RESPONDENT
ON 18 JULY 2014 ARE HEREBY
DECLARED INCONSISTENT WITH THE PROVISIONS OF THE CONSTITUTION OF THE
REPUBLIC OF SOUTH AFRICA AND AS
SUCH ARE DECLARED INVALID AND
ACCORDINGLY SET ASIDE.
(2)
THE TWO LAPTOPS, ONE EXTERNAL
HARD DRIVE AND ONE CPU AND 160 FILES (“THE MATERIAL”)
ATTACHED AND REMOVED PURSUANT OF
THESE WARRANTS SHALL NOT BE RETURNED
TO THE APPLICANT BUT THE SAID ATTACHMENT AND REMOVAL SHALL BE
PRESERVED. THE MATERIAL
SHALL WITHIN 24 HOURS OF THIS ORDER BE
PLACED BY THE FIRST TO FOURTH RESPONDENTS IN THE POSSESSION OF THE
REGISTRAR OF THIS COURT
WHO SHALL KEEP THE MATERIAL IN SAFE CUSTODY
SUBJECT TO THE DIRECTIONS OF THIS COURT EXCEPT THE PROPOSED 4 TO 19
HEREUNDER.
(3)
TO THE EXTENT REQUIRED BY THE
APPLICANT, FIRST AND FOURTH RESPONDENTS SHALL CAUSE WITHIN 24 HOURS
OF THIS ORDER A COMPLETE INVENTORY
OF THE MATERIAL REFERRED TO IN
PARAGRAPH 2 TO BE MADE AVAILABLE IN WRITING TO THE APPLICANT.
(4)
THE FILE COVERS AS WELL AS
THE CONTENTS OF THE 160 FILES SHALL BE COPIED BY THE REGISTRAR OR HIS
OR HER DULY AUTHORISED DELEGATEE
WITHIN 48 HOURS OF RECEIPT OF THE
MATERIAL, THAT IS WITHIN 72 HOURS OF THE GRANTING OF THIS ORDER.
BOTH PARTIES ARE ENTITLED
TO APPOINT A REPRESENTATIVE TO BE PRESENT
DURING THE COPYING OF THE FILES.
(5)
AFTER COPYING THE FILES THE
REGISTRAR SHALL IMMEDIATELY RETURN OR CAUSE TO BE RETURNED THE
ORIGINALS THEREOF TO THE APPLICANT, WHO
SHALL ACKNOWLEDGE RECEIPT
THEREOF IN WRITING.
(6)
WITHIN 5 DAYS OF THE RECEIPT OF
THE ORIGINAL FILES FROM THE REGISTRAR THE APPLICANT SHALL IN WRITING
ADDRESS TO THE RESPONDENTS’
ATTORNEY OF RECORD AND TO THE
REGISTRAR IDENTIFY EACH AND EVERY DOCUMENT IN THIS FILES IN RESPECT
OF WHICH HE CLAIMS LEGAL PRIVILEGE
AND / OR PRIVACY AND CLEARLY SET
OUT THE GROUNDS ON WHICH HE CLAIMS SUCH PRIVILEGE AND / OR PRIVACY.
(7)
THE REGISTRAR SHALL WITHIN 24
HOURS OF THE EXPIRATION OF THE PERIOD AFFORDED THE APPLICANT IN
PARAGRAPH 6 ABOVE DELIVER OR CAUSE
TO BE DELIVERED TO THE
RESPONDENTS’ ATTORNEYS ALL DOCUMENTS IN RESPECT OF WHICH NO
PROFESSIONAL, LEGAL PRIVILEGE HAS BEEN
CLAIMED BY THE APPLICANT, NO
PRIVACY RIGHTS HAVE BEEN BREACHED AND KEEP IN SAFE CUSTODY ALL SUCH
DOCUMENTS IN RESPECT OF WHICH
THE APPLICANT CLAIMS LEGAL PRIVILEGE OR
PRIVACY SUBJECT TO THE FURTHER DIRECTION IN RESPECT THEREOF AS SET
FORTH HEREUNDER.
(8)
SHOULD THE RESPONDENTS DISPUTE
THE PROFESSIONAL, LEGAL PRIVILEGE OR PRIVACY CLAIMS CLAIMED BY THE
APPLICANT IN RESPECT OF ANY DOCUMENTS
THEY SHALL WITHIN 7 DAYS OF
RECEIVING THE WRITTEN CORRESPONDENCE REFERRED TO IN PARAGRAPH 6
ABOVE, IN WRITING, ADDRESS TO THE APPLICANT’S
ATTORNEYS OF
RECORD AND TO THE REGISTRAR, IDENTIFY SUCH DOCUMENTS AND CLEARLY SET
OUT THE GROUNDS ON WHICH THEY DISPUTE THE CLAIMS
OF PROFESSIONAL,
LEGAL PRIVILEGE IN RESPECT THEREOF.
(9)
ANY CHALLENGE TO THE APPLICANT’S
CLAIM OF PROFESSIONAL, LEGAL PRIVILEGE SHALL BE BY MUTUAL AGREEMENT
BETWEEN THE PARTIES AND
WITH THE PRIOR APPROVAL OF THE JUDGE
PRESIDENT BE PLACED ON THE URGENT ROLE FOR DETERMINATION.
(10)
WITHIN 24 HOURS OF THE GRANTING
OF THIS ORDER, THE PARTIES SHALL IN WRITING ON THE APPOINTMENT OF A
COMMON, CYBER FORENSIC EXPERT
WHO SHALL MAKE FORENSIC IMAGES OF THE
ELECTRONIC DATA CONTAINED ON THE COMPUTERS.
(11)
IN THE EVENT THAT THE PARTIES ARE
UNABLE TO AGREE ON THE APPOINTMENT OF A COMMON CYBER FORENSIC EXPERT
AS FORESAID, THEN EACH OF
THE PARTIES SHALL WITHIN 48 HOURS OF THE
EXPIRATION OF THE PERIOD SET FORTH IN PARAGRAPH 10 ABOVE APPOINT A
CYBER FORENSIC EXPERT
OF THEIR CHOICE WHO SHALL TOGETHER DEAL WITH
THE COMPUTERS AS SET FORTH FURTHER HEREIN.
(12)
THE APPOINTED CYBER FORENSIC
EXPERT SHALL WITHIN 24 HOURS OF THE EXPIRATION OF THE PERIOD SET
FORTH IN PARAGRAPH 11 ABOVE IMMEDIATELY
MAKE ARRANGEMENTS WITH THE
REGISTRAR TO BE GRANTED ACCESS TO THE COMPUTERS AND SHALL AS SOON AS
REASONABLY, PRACTICALLY POSSIBLE
THEREAFTER (NOT EXCEEDING 72 HOURS)
AND UNDER THE SUPERVISION OF THE REGISTRAR OR HIS OR HER DULY
AUTHORISED DELEGATEE MAKE A CYBER
FORENSIC IMAGE OF ALL THE
ELECTRONIC DATA CONTAINED ON EACH OF THE COMPUTERS, WHERE AFTER THE
REGISTRAR SHALL IMMEDIATELY RETURN
THE COMPUTERS TO THE APPLICANT WHO
SHALL ACKNOWLEDGE RECEIPT THEREOF IN WRITING.
(13)
THE CYBER FORENSIC IMAGES SHALL
AT ALL TIMES BE KEPT IN THE SAFE CUSTODY OF THE REGISTRAR, SAVE WHEN
REQUIRED BY THE CYBER FORENSIC
EXPERT FOR ACCESSING THE DATA THEREON
AS FURTHER REGULATED HEREUNDER.
(14)
WITHIN 48 HOURS OF MAKING THE
FORENSIC IMAGES AS REFERRED TO IN PARAGRAPH 12 ABOVE THE CYBER
FORENSIC EXPERTS SHALL, UNDER THE SUPERVISION
OF THE REGISTRAR OR HIS
OR HER DULY AUTHORISED DELEGATEE, IDENTIFY, ISOLATE AND DOWNLOAD ONTO
AN EXTERNAL HARD DRIVE ALL DATA PERTAINING
TO THE APPLICATION BY THE
APPLICANT FOR GENERAL WORK PERMITS WHICH SHALL INCLUDE BUT NOT BE
LIMITED TO APPLICATIONS FOR JOB VACANCIES
PLACED IN NEWSPAPERS,
WRITTEN RESPONSES THERETO, LETTERS AND LETTERHEADS PURPORTING TO
EMANATE FROM OXEN INFORMATION TECHNOLOGY
(“OXEN”),
PURPORTED FAILED JOB APPLICATIONS SUBMITTED TO OXEN AND TO OTHER
BUSINESS ENTRIES, INCLUDING THE CURRICULUM
VITAES OF SUCH APPLICANTS,
BANK STATEMENTS RELATING TO JOB APPLICATIONS AND ALL EMAIL
CORRESPONDENCE EXCHANGED BETWEEN THE APPLICANT
AND ANY PERSONS
APPLYING FOR GENERAL WORK PERMITS.
(15)
IMMEDIATELY AFTER DOWNLOADING THE
DATA ONTO AN EXTERNAL HARD DRIVE AS REFERRED TO IN PARAGRAPH 14, THE
REGISTRAR SHALL DELIVER OR
CAUSE TO BE DELIVERED TO THE APPLICANT’S
ATTORNEYS, WHO SHALL ACKNOWLEDGE RECEIPT THEREOF IN WRITING, ALL THE
CYBER FORENSIC
IMAGES MADE IN PARAGRAPH 12 ABOVE BY THE APPOINTED
CYBER FORENSIC EXPERTS.
(16)
IMMEDIATELY AFTER DOWNLOADING THE
DATA ONTO AN EXTERNAL HARD DRIVE AS REFERRED TO IN PARAGRAPH 14
ABOVE, ONE COPY OF SUCH HARD DRIVE
SHALL UNDER THE SUPERVISION OF THE
REGISTRAR OR HIS OR HER DULY AUTHORISED DELEGATEE, BE MADE TO THE
APPOINTED CYBER FORENSIC EXPERTS
WHERE AFTER THE REGISTRAR SHALL
IMMEDIATELY DELIVER THE COPY OF THE HARD DRIVE OR CAUSE TO BE
DELIVERED TO THE APPLICANTS WHO SHALL
ACKNOWLEDGE RECEIPT THEREOF IN
WRITING. THE REGISTRAR SHALL KEEP IN SAFE CUSTODY THE ORIGINAL
OF THE EXTERNAL HARD DRIVE,
SUBJECT TO THIS COURT’S FURTHER
DIRECTIONS AS SET FORTH HEREUNDER.
(17)
THE APPLICANT SHALL WITHIN 7 DAYS
OF THE RECEIPT OF THE COPY OF THE HARD DRIVE FROM THE REGISTRAR
IDENTIFY IN WRITING, ADDRESSED
TO THE RESPONDENTS ATTORNEYS OF RECORD
AND TO THE REGISTRAR, THE DATA IN RESPECT OF WHICH HE CLAIMS
PROFESSIONAL, LEGAL PRIVILEGE
AND / OR PRIVACY AND CLEARLY SET OUT
THE GROUNDS ON WHICH HE CLAIMS SUCH PROFESSIONAL, LEGAL PRIVILEGE AND
/ OR PRIVACY.
(18)
WITHIN 24 HOURS OF THE EXPIRATION
OF THE PERIOD AFFORDED THE APPLICANT IN PARAGRAPH 17 ABOVE, THE CYBER
FORENSIC EXPERT SHALL, UNDER
THE SUPERVISION OF THE REGISTRAR OR HIS
OR HER DULY AUTHORISED DELEGATEE, DOWNLOAD ALL DATA FROM THE EXTERNAL
HARD DRIVE IN RESPECT
OF WHICH THERE IS NO CLAIM OF PROFESSIONAL,
LEGAL PRIVILEGE NOR PRIVACY, ONTO A SEPARATE EXTERNAL HARD DRIVE AND
DELIVER SAME TO
THE REGISTRAR WHO IN TURN SHALL DELIVER OR CAUSE TO
BE DELIVERED THE EXTERNAL HARD DRIVE TO THE RESPONDENTS’
ATTORNEYS WHO
SHALL ACKNOWLEDGE RECEIPT THEREOF IN WRITING.
(19)
SHOULD THE RESPONDENTS DISPUTE
THE APPLICANT’S CLAIM OF PROFESSIONAL, LEGAL PRIVILEGE AND / OR
PRIVACY IN RESPECT OF ANY DATA,
THE RESPONDENTS SHOULD IN WRITING
ADDRESS TO THE APPLICANT’S ATTORNEYS OF RECORD AND TO THE
REGISTRAR, IDENTIFY SUCH DATA
AND CLEARLY SET OUT THE GROUNDS ON
WHICH THE RESPONDENTS DISPUTE THE APPLICANT’S CLAIM OF
PROFESSIONAL, LEGAL PRIVILEGE AND
/ OR PRIVACY IN RESPECT THEREOF.
(20)
ANY CHALLENGE TO THE APPLICANT’S
CLAIM OF PROFESSIONAL, LEGAL PRIVILEGE AND / OR PRIVACY IN RESPECT OF
ANY DATA SHALL BY MUTUAL
AGREEMENT BETWEEN THE PARTIES AND THE PRIOR
APPROVAL OF THE JUDGE PRESIDENT BE PLACED ON THE URGENT ROLL FOR
DETERMINATION.
(21)
THESE TIME LIMITS WHICH ARE SET
OUT IN PARAGRAPHS 3 AND FOLLOWS CAN EITHER BE AMENDED BY AGREEMENT OR
THE PARTIES ARE GRANTED LEAVE
TO APPROACH THE COURT TO AMEND THESE
TIME LIMITS ON CAUSE BEING SHOWN.
(22)
THE COSTS INCURRED IN RESPECT OF
COPYING THE FILES BY THE REGISTRAR OR HIS OR HER DULY AUTHORISED
DELEGATEE, TOGETHER WITH THE COSTS
INCURRED BY THE CYBER FORENSIC
EXPERTS IN CARRYING OUT THEIR DUTIES AND FUNCTIONS AS DESCRIBED THEM,
SHALL BE PAID BY THE RESPONDENTS,
JOINTLY AND SEVERALLY, THE ONE
PAYING THE OTHERS TO BE ABSOLVED.
__________________
DAVIS, J
CORAM:
DAVIS J
JUDGMENT BY:DAVIS
J
FOR THE APPLICANT : ADV A KATZ SC &
ADV
A BRINK
INSTRUCTED BY: BISSET BOEHMKE
McBLAIN
ATTORNEYS
FOR THE RESPONDENTS: ADV
A ALBERTUS SC &
ADV
H SLINGERS
INSTRUCTED BY :
STATE ATTORNEY
DATE OF HEARINGS:
24 & 25 JULY 2014
DATE OF JUDGMENT:
4 AUGUST 2014