Els v Minister of Safety and Security

• Jurisdiction: South Africa
• Judge: Kriek JP
• Judgment Date: 06 March 1998
• Citation: 1998 (2) SACR 93 (NC)
• Hearing Date: 28 November 1997
• Counsel: P A Meyer for the applicant C J Olivier for the respondent
• Court: Northern Cape Division

Kriek JP:

Applicant seeks an order against respondent in the following terms: E

'Directing that the Station Commander of the South African Police Kimberley furnish copies of all documents in its possession which relate to a search warrant dated 26 February 1996 which documents must include those submitted to the learned magistrate at the time application was made to him for issue of said warrant.'

He also asks for costs. F

The following facts are either common cause or, as Mr Meyer, for the applicant, submitted, not disputed in the legal sense of 'a real, genuine or bona fide dispute of fact'. (Plascon - Evans Paint v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634-5.)

1.

After an informer had supplied Detective Inspector Visagie of the SAPS Diamond and Gold Branch in Kimberley with G certain information telephonically, the informer deposed to an affidavit upon the strength of which a warrant for the search of applicant's home for counterfeit money was issued by a magistrate.

2.

Visagie had known the informer for between two or three years, and had previously received information from H him.

3.

On 26 February 1997, Visagie, Captain Briel, and other members of the police force visited applicant's home. A copy of the search warrant was handed to applicant who then summoned his attorney by telephone. The attorney arrived I and said the warrant appeared to be in order.

4.

A search of applicant's home was then conducted, but no counterfeit money, or any evidence incriminating applicant in any other offence, was found. J

Kriek JP

5.

Applicant asked the police what had led them to believe that he was in possession of counterfeit money, and was told A that information had been received from an informer.

6.

On 6 March 1997, applicant's attorney wrote to the Station Commander of the SAPS in Kimberley, saying, inter alia:

'The documents relating to the search warrant are apparently in your possession and I must request that you furnish me per return with a copy of B those documents which were submitted to the learned magistrate pursuant to which he issued the search warrant.

My client intends taking action in this matter for recovery of damages based on the injuria suffered and the documents are required so that the particulars of claim may be completed by annexing those documents to the summons.' C

7.

On 18 March the First Legal Officer of the SAPS wrote to applicant's attorney as follows:

'We wish to advise that the search warrant was issued by the magistrate on the strength of an affidavit deposed to by an informer. D

Due to the fact that the SAPS cannot be compelled to divulge the identity of an informer, the documents required by yourself can unfortunately not be furnished.'

Applicant says that if he is not granted the relief which he seeks, he will be deprived of: E

'(i)

the right to seek redress against the alleged informer who has quite clearly defamed and vilified me unjustly;

(ii)

my right of instituting action against and claiming damages for such defamation and injuria; or F

if there was in fact no informer:

(iii)

instituting action against the police for their unlawful conduct'.

Mr Meyer's basic submission was that applicant 'requires the relevant information for the exercise or protection of his rights', and in support of his submission that applicant was entitled to that information he referred, in the first instance, to G various provisions of the Constitution (Act No 108 of 1996). At this stage I merely mention the sections which he quoted, in the order which he quoted them:

Section 32.

Sections 23(2) and (3) of Schedule 6. H

Chapter 2, ss 10, 12(1)(e), 14.

Sections 7(3), 36 and 39.

With reference to these provisions, he submitted in his heads of argument:

'6.1

The applicant has the right to access to all information which is held by the South African Police, Diamond and Gold Branch, Kimberley, I which is "required for the exercise or protection" of his rights. (Section 23(2) of Schedule 6 read with s 32 of the Constitution.)

6.2

The applicant's rights which are to be exercised and protected are his "inherent dignity and the right to have (his) dignity respected and protected" J

Kriek JP

(s 10 of the Constitution), his right not to be treated in a "degrading way" (s 12(1)(e) of the Constitution), his "right to privacy", which A includes his right not to have his "person or home searched" and his "property searched" (s 14 of the Constitution).

6.3

In terms of s 36(1) of the Constitution, the applicant's aforesaid rights are only to be limited to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, B including the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose and less restrictive means to achieve the purpose.

6.4

The onus is upon the respondent to prove by a preponderance of probability that a limit on the applicant's fundamental rights is C reasonable and demonstrably justified (para 3.5 supra).'

The first question which arises is the extent to which the so-called 'informer privilege' has survived the new Constitution. I have not been referred to a decision of any Court dealing with this specific question, but it has been touched on in two D cases.

In Khala v Minister of Safety and Security 1994 (4) SA 218 (W) Myburgh J said at 233B - H:

'Our law in regard to preserving the anonymity of police informers is in keeping with the common law and statutory law of democratic societies such as the United States of America, the United Kingdom, Canada, Australia and New Zealand. In D v National Society for the Prevention of E Cruelty to Children (supra at 595b-c), Lord Diplock said:

"The rationale of the rule as it applies to public informers is plain. If their identity were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a F judicial tribunal to ascertain facts relevant to an issue on which it is required to adjudicate should be withheld from that tribunal . . . the balance has fallen on the side of non-disclosure except where on the trial of a defendant for a criminal offence, disclosure of the identity of the...