Els v Minister of Safety and Security

• Jurisdiction: South Africa
• Citation: 1998 (2) SACR 93 (NC)

Els v Minister of Safety and Security
1998 (2) SACR 93 (NC)

1998 (2) SACR p93

Citation	1998 (2) SACR 93 (NC)
Court	Northern Cape Division
Judge	Kriek JP
Heard	November 28, 1997
Judgment	March 6, 1998
Counsel	P A Meyer for the applicant; C J Olivier for the respondent

Flynote: Sleutelwoorde

Fundamental rights — Right of access to information — Informer privilege — Applicant seeking order compelling police to furnish documents on which search warrant was based — Information gained from informer — Important that identity of informer not be disclosed — Application dismissed.

Evidence — Privilege — Informer privilege — Applicant seeking order compelling police to furnish documents on which search warrant was based F — Information gained from informer — Important that identity of informer not be disclosed — Application dismissed.

Headnote: Kopnota

On the basis of information provided by an informer to the Diamond and Gold Branch of the South African Police Service a search warrant was obtained and the applicant's home was searched. Nothing incriminating was found during the search. G The applicant, wishing to institute action for damages based on iniuria, applied for an order compelling the respondent to furnish him with copies of all documents relating to the search warrant. The application was based on the provisions of s 32 of the Constitution of the Republic of South Africa Act 108 of 1996 read with s 23(2) and (3) of Schedule 6 thereof. H

The Court held that the informer had given the police information on the basis that his identity would not be disclosed. This confidentiality was essential to maintaining a relationship based on trust between the police and informer: disclosure of his identity would terminate that relationship. The Court held that obliging the police to reveal the identity of an informer in the I present case would probably have far-reaching effects. Although there would be cases in which it would be in the public interest to order the disclosure of the identity of an informer, such orders should not be made lightly. The informer system was one of the cornerstones of the battle against organised crime and when the identity of one informer was made known, other informers or would-be informers would desist from providing information. The Court J

1998 (2) SACR p94

held that the advent of the new Constitution should not, in the public interest, have the effect of watering down the A informer privilege to any significant extent even though it did vest in the courts a wider discretion to enforce disclosure of the identity of informers than they previously had. There was, furthermore, no indication that the informer was mendacious or malicious or that the police had any reason to suspect that he was. The opportunity which the applicant had B of protecting his rights if the identity of the informer was disclosed, could not be of greater public importance than the protection, insofar as was legally permissible, of the privilege attaching to informers. The Court accordingly dismissed the application.

Case Information

Application for an order compelling the respondent to furnish information on which an application for a search warrant C was based.

P A Meyer for the applicant.

C J Olivier for the respondent.

Cur adv vult. D

Postea (1998 March 6).

Judgment

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

1998 (2) SACR p95

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

1998 (2) SACR p96

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...