Avontuur & Associates Inc and Another v Chief Magistrate, Oudtshoorn, and Others

• Jurisdiction: South Africa
• Citation: 2013 (1) SACR 615 (WCC)

Avontuur & Associates Inc and Another v Chief Magistrate, Oudtshoorn, and Others
2013 (1) SACR 615 (WCC)

2013 (1) SACR p615

Citation	2013 (1) SACR 615 (WCC)
Case No	20444/2010
Court	Western Cape High Court, Cape Town
Judge	Dlodlo J
Heard	May 8, 2012
Judgment	June 6, 2012
Counsel	C Avontuur for the applicants.; A Erasmus for the second and third respondents.

Flynote : Sleutelwoorde

Search and seizure — Search warrant — Validity of — Seizure of attorney's G documents relating to investigation against attorney by client — Privilege — Imputed waiver of privilege by client — Claim to privilege by attorney not genuine — Warrant valid.

Search and seizure — Search warrant — Application for — Whether obligation H on investigating officer to show that there was less invasive means of obtaining documents — State not required to show that less invasive means would not produce documents.

Headnote : Kopnota

The first applicant, a firm of attorneys, and the second applicant, an attorney and I sole director of the firm, applied to the court to set aside a warrant of search

2013 (1) SACR p616

A and seizure issued by a magistrate in terms of s 20(a) and (b) of the Criminal Procedure Act 51 of 1977. The police had applied for the warrant during their investigations into a charge of fraud relating to debt-collection work performed by the applicants for a municipality. It was alleged that the fraud was perpetrated by means of bills of costs drawn up for the applicants by a firm of costs consultants. The documents seized by the police were the B correspondence and accounts drawn up by the costs consultants and were found at the offices of the first applicant and at the home of the second applicant. In support of the bid to have the warrant set aside, the applicants contended, inter alia, that (a) the communications between the applicants and the costs consultants were privileged and the files themselves were privileged; and (b) the magistrate had failed to properly exercise his C discretion when deciding whether or not to authorise the warrants, in that the investigating officer did not inform him, in breach of a legal duty to do so, that a less invasive means than the search and seizure existed to obtain the files.

Held, that the broad principle was that only confidential communications and material integral thereto between attorney and client, made for the purpose D of obtaining legal advice, were privileged. In an attorney's file there would invariably be documents and information which in the ordinary course would not be privileged, such as statements of account reflecting the amount received by the attorney from the defendant, particulars of the attorney's fees and disbursements and what the net amount was that was paid over to the client. Such unprivileged documents could be seized. It E remained the duty of the applicants to claim the privilege because in any event privilege was the right of the attorney's client. But in claiming privilege the attorney had to act not in his own interests or on his own behalf, but always for the benefit of the client. Unless the attorney did so, his claim to privilege may be regarded as not genuine at all. In the latter event a court would be entitled to disregard the claim to privilege and F permit seizure. (Paragraph [30] at 632d – g.)

Held, further, that the applicants' claim to privilege over the files in the instant matter was not genuine, as it was inimical to its client's (the municipality's) interests, as it wanted the matter investigated. (Paragraph [30] at 632j – 633a.)

Held, further, as to the respondents' argument that there was an imputed waiver G of any privilege over the files by the municipality, the argument assumed that there was or might be confidential advice on the files, although nowhere in the papers was it mentioned that there was confidential advice on the files. Imputed waiver (or deemed waiver) took place when, irrespective of what the holder's intention may have been, his conduct reached a H point of disclosure that considerations of fairness required that the privilege had to cease. Importantly in the instant matter, a municipal official had submitted a sworn statement wherein he alleged that the applicants had breached their duties, and as a result the municipality must be deemed to have waived any privilege in regard to the files relevant to this issue. (Paragraphs [30] and [31] at 633a – d.)

Held, further, that, in the light of the fact that on the applicants' own admission I only eight (at the most, nine) files may contain communications between the applicants and the costs consultant, the submission that, with regard to these eight files at least the applicants had waived their privilege, could not be faulted. (Paragraph [33] at 634e – g.)

Held, further, as regards the contention, that there was a legal duty on the investigating officer to inform the magistrate that there was a less invasive J means than the search and seizure to obtain the files, that the state was not

2013 (1) SACR p617

required to prove that less invasive means would not produce the A documents, something which may be well-nigh impossible to do. Rather, a judicial officer, in determining whether to issue a warrant, had to consider whether there was an appreciable risk, to be judged objectively, that the state would not be able to obtain the evidence by following a less invasive route. In the present circumstances, objectively judged, the investigating officer had discharged his duties. Application dismissed. (Paragraph [48] at B 644h – 645b.)

Cases cited

Southern Africa C

Associated Institutions Pension Fund and Others v Van Zyl and Others2005 (2) SA 302 (SCA) ([2004] 4 All SA 133): applied

Bank of Lisbon and South Africa Ltd v Tandrien Beleggings (Pty) Ltd and Others (2)1983 (2) SA 626 (W): applied

Bogoshi v Van Vuuren NO and Others; Bogoshi and Another v Director, Office for Serious Economic Offences and Others1996 (1) SA 785 (A): applied D

Director of Hospital Services v Mistry1979 (1) SA 626 (A): applied

Euroshipping Corporation of Monrovia v Minister of Agricultural Economics and Marketing and Others1979 (1) SA 637 (C): applied

Ex parte Minister van Justisie: In re S v Wagner1965 (4) SA 507 (A): applied

Harksen v Attorney-General, Cape, and Others1998 (2) SACR 681 (C) (1999 (1) SA 718): applied E

Kommissaris van Binnelandse Inkomste v Van der Heever1999 (3) SA 1051 (SCA): applied

Minister of Safety and Security and Others v Bennett [2008] 2 All SA 26 (SCA): applied

Msimang v Durban City Council and Others1972 (4) SA 333 (D): applied F

National Director of Public Prosecutions v Basson2001 (2) SACR 712 (SCA) (2002 (1) SA 419; 2002 (1) BCLR 419; [2002] 2 All SA 255): applied

Peacock v SA Eagle Insurance Co Ltd1991 (1) SA 589 (C): applied

S v Nhlapo and Others1988 (3) SA 481 (T): applied

S v Tandwa and Others2008 (1) SACR 613 (SCA): applied

Shepard v Tuckers Land & Development Corp (Pty) Ltd (1)1978 (1) SA 173 (W): applied G

Thint (Pty) Ltd v National Director of Public Prosecutions; Zuma v National Director of Public Prosecutions2008 (2) SACR 421 (CC) (2009 (1) SA 1; 2008 (12) BCLR 1197): applied

Titty's Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd1974 (4) SA 362 (T): applied H

Transnet Ltd v Rubenstein2006 (1) SA 591 (SCA) ([2005] 3 All SA 425): applied

Triomf Kunsmis (Edms) Bpk v AE & CI Bpk en Andere1984 (2) SA 261 (W): applied

Wasteman Cape (Pty) Ltd v George Municipality and Another (Western Cape case No 4082/05, 17 June 2005): applied. I

Australia

Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd [1996] NSWSC 7 ((1996) 40 NSWLR 12): discussed

Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd[1996] HCA 15 ((1996) 137 ALR 28): discussed J

2013 (1) SACR p618

Bennett v Chief Executive Officer of the Australian Customs[2004] FCAFC 237 ((2004) 140 FCR 101): discussed A

Mann v Carnell[1999] HCA 66 (201 CLR 1): discussed

Rio Tinto Ltd v Commissioner of Taxation[2005] FCA 1336: discussed

Switchcorp Pty Ltd and Others v Multimedia Limited[2005] VSC 425: discussed.

England B

Great Atlantic Insurance Co v Home Insurance Co and Others[1981] 2 All ER 485 (CA): discussed

Mann v Carnell[1999] HCA 66 (201 CLR 1): applied.

Legislation cited

Statutes C

The Criminal Procedure Act 51 of 1977, ss 20(a) and (b): see Juta's Statutes of South Africa 2011/12 vol 1 at 2-337.

Case Information

C Avontuur for the applicants.

A Erasmus for the second and third respondents. D

Application for the setting-aside of a search and seizure warrant. The facts appear from the reasons for judgment.

Judgment

Dlodlo J:

E [1] On 20 February 2012 members of the South African Police Service under the command of Inspector Frank Tolken conducted a search at the premises of a law firm practising as such under the name and style of Avontuur & Associates Incorporated. They sought to find and seize a certain number of files apparently belonging to Oudtshoorn Municipality, which had been handed over by the latter to the first applicant with F express instructions to do collections on its behalf. The police were armed with two search warrants which had been issued on 17 February 2012 by the chief magistrate of the Oudtshoorn magistrates' court, one Mr JS Lambrechts (the first respondent in these proceedings, who is G henceforth referred to as the chief magistrate).

[2] These search warrants were issued pursuant to the provisions of s 21 read with ss 20(a) and (b) of the Criminal Procedure Act 51 of 1977 (the Criminal Procedure Act), as amended. It is important to mention that the first search warrant authorised a search at the second applicant's residence, namely 14 Van Rhede Hof, Oranje Street, Oudtshoorn, H whilst the second authorised a search at Room...