Bennett and Others v Minister of Safety and Security and Others

• Jurisdiction: South Africa
• Citation: 2006 (1) SACR 523 (T)

Bennett and Others v Minister of Safety and Security and Others
2006 (1) SACR 523 (T)

2006 (1) SACR p523

Citation	2006 (1) SACR 523 (T)
Case No	27892/05
Court	Transvaal Provincial Division
Judge	Bertelsmann J
Heard	August 19, 2005
Judgment	November 23, 2005
Counsel	R Sutherland SC (with D Vetten) for the applicants.; M O Phahlane for the respondents.

Flynote : Sleutelwoorde B

Search and seizure— Search warrant — Validity of — Warrants issued in terms of s 21 of Criminal Procedure Act 51 of 1977 — Application for setting aside on ground that warrants not providing for return day on which applicants could object to issuing and execution thereof — Warrant not order of C court requiring affected parties to observe return date for confirmation of provisional rule — Rule 56(5) of Magistrates' Courts Rules not applying to execution of warrant obtained ex parte— Any person affected by terms of warrant or its execution could approach court to exercise or enforce his or her rights.

Search and seizure— Search warrant — Validity of — Warrants issued in terms of s 21 of Criminal Procedure Act 51 of D 1977 — Documents and items seized not marked at scene of removal — Not always possible for police officer to decide whether to dispose of seized article before circumstances under which seized, and origin, fully investigated — Only then could applicability of procedure set out in s 30(c) of Criminal Procedure Act 51 of 1977 be considered — Accordingly, mere E fact that documents not marked individually when removed could not be described as unlawful.

Search and seizure— Search warrant — Validity of — Warrants issued in terms of s 21 of Criminal Procedure Act 51 of 1977 — Police officers knowingly removing large number of confidential and privileged documents, including communications between F attorney and client — Right to confidentiality of communications between attorney and client a substantive rule of law, breach of which constituting breach of right to fair trial and violation of right to effective legal representation — Warrant authorising search for and seizure of privileged documents indubitably unlawful G

2006 (1) SACR p524

and might lead per se to conclusion that fair trial no longer possible — Removal of privileged documents not authorised A by warrants — In casu, no items identified as privileged inspected by police — Accordingly, not established that future proceedings irreparably tainted to extent that entire criminal trial could be said to be unfair — Trial court in best position to decide on admissibility of evidence unlawfully obtained.

Search and seizure— Search warrant — Validity of — Warrants issued in B terms of s 21 of Criminal Procedure Act 51 of 1977 — Warrants carried out unlawfully — All documents removed in terms of warrants therefore to be returned to applicants — However, trial court's prerogative to decide whether evidence obtained in unconstitutional manner should be admitted in interests of justice — Accordingly, authorities entitled to make copies of non-privileged documents before returning C same to applicants — Such copies to be lodged with Registrar pending trial court's decision on admissibility.

Headnote : Kopnota

The right to confidentiality of communications between attorney and client is a substantive rule of law, the breach of which constitutes a D breach of the right to a fair trial and a violation of the right to effective legal representation. Were a warrant to authorise a search for and seizure of privileged documents, it would indubitably be unlawful and might lead per se to the conclusion that a fair trial would no longer be possible. If the authorities have consciously and intentionally set out to gain access to privileged information or E if, access having been gained inadvertently, they ignore its privileged nature, the drastic step of a stay of the proceedings might be appropriate. (Paragraphs [57] and [60] at 534h and 535g.)

The applicants were charged with a number of offences of a commercial nature. Officers attached to the Serious Economic Offences Unit of the South African Police Services obtained search and seizure warrants issued in terms of s 21 of the Criminal Procedure Act 51 of 1977 F (CPA), and proceeded to search various premises controlled by the applicants. In the course of these searches some 40 000 documents were seized. The applicants applied for (a) the setting aside of the warrants, alternatively for the setting aside of the decision to issue the warrants; (b) for an order for the return of all documents and other items seized, including copies thereof; and (c) for an interdict preventing the respondents from G using the documents and other items seized, and any copies thereof, or any information obtained therefrom, for any purpose whatsoever.

Held, that the warrants were extensive, both in their terms and in the volume of information that had been placed before the magistrates who had been asked to issue them. It appeared that the magistrates had been put under considerable pressure to issue the H warrants on the same day that they were applied for, and it was clear that the magistrates could not have read all the documentation with which they were confronted when they decided to issue the warrants. This raised the question of whether or not the magistrates had properly applied their minds to the issuing of the warrants. It had also been argued by the applicants that the sweeping terms of the warrants gave I the authorities the right to seize any document whatsoever, including privileged documents, and those having no relevance to the matters under investigation. However, bearing in mind that a large number of corporate entities and thousands of transactions were involved in the criminal proceedings, it had not been established that the warrants were too extensive. Properly interpreted and applied, they would not in themselves J

2006 (1) SACR p525

have led to an unlawful intrusion into the rights of the applicants. Accordingly, the attack based on the terms of the A warrants could not succeed. (Paragraphs [24], [26], [29], [32], [34] and [39] at 529j, 530a, 530c - d, 530f - g, 530i, 531b, 531i.)

Held, further, that the issuing of a search and seizure warrant in terms of the CPA was not an order of court requiring the affected parties to observe a return date for the confirmation of a provisional rule. Rule 56(5) of the Magistrates' Courts Rules did not B apply to the execution of a warrant obtained ex parte. If the person who was subject to the warrant acquiesced therein, no confirmation of a rule or provisional order was necessary. Conversely, any person affected by the terms of a warrant or its execution could approach a court to exercise or enforce his or her rights. Consequently, the attack based on the fact that none of the warrants provided for a return day could not be upheld. (Paragraphs C [41] - [42] at 532a - e.)

Held, further, regarding the applicants' contention that, because the documents and items seized had not been marked at the scene of their removal as required by s 30(c) of the CPA, the execution of the warrants had been unlawful, that it would often be impossible for a police officer to decide whether to dispose of a seized article before the circumstances under which it was seized, and D its origin, had been fully investigated. Only then could the applicability of the s 30(c) procedure be considered. Accordingly, the mere fact that the documents had not been marked individually when they were removed could not be described as unlawful. (Paragraphs [44] - [50] at 532f- 533f.)

Held, further, that while the respondents had tendered the return of some 18 000 pages identified by them as privileged (the E officers had removed a large number of confidential and privileged documents, including communications between attorney and client), the applicants contended that the execution of the warrants had been irrevocably tainted by the attachment of such privileged communications, and, consequently, demanded the return of all documents and copies and a blanket prohibition on any use thereof. While the F removal of the privileged documentation was intentional, in that the police had been informed that privileged material was among the mound of paper they were removing, none of the items identified as privileged had been inspected by the police - they had remained sealed. Moreover, the removal of privileged documents had not been authorised by the warrants. Accordingly, it had not been established that future proceedings had been irreparably tainted to the extent that G the entire criminal trial with its thousands of charges could already be said to be unfair. (Paragraphs [51] - [54] and [62] - [65] at 533f - i and 535i - 536g.)

Held, further, that although the warrants had been carried out unlawfully, and although all documents removed in terms of the warrants had therefore to be returned to the applicants, it was the prerogative of the trial court to decide whether evidence obtained in H an unconstitutional manner should be admitted in the interests of justice. Therefore, provided that the originals were returned to the applicants, and provided that the privileged documents were not made available to the respondents, it was clearly in the public interest that documentation that might be instrumental in bringing a criminal to book be preserved. (Paragraphs [65] - [66] at 536d - i.) I

Held, accordingly, that the execution of the warrants had been unconstitutional and unlawful. The respondents were ordered to return all seized documents to the applicants and declared entitled to make copies of all seized documents other than privileged documents, such copies to be lodged with the Registrar of the High Court pending a decision by the trial Court on their...