Key v Attorney-General, Cape Provincial Division, and Another

• Jurisdiction: South Africa
• Judge: Kriegler J
• Judgment Date: 15 May 1996
• Citation: 1996 (2) SACR 113 (CC)
• Hearing Date: 23 May 1995
• Counsel: S F Burger SC (with him D M Davis) for the applicant J J Gauntlett SC (with him J C Heunis) for the respondent
• Court: Constitutional Court

Key v Attorney-General, Cape Provincial Division, and Another
1996 (2) SACR 113 (CC)

1996 (2) SACR p113

Citation	1996 (2) SACR 113 (CC)
Court	Constitutional Court
Judge	Kriegler J
Heard	May 23, 1995
Judgment	May 15, 1996
Counsel	S F Burger SC (with him D M Davis) for the applicant; J J Gauntlett SC (with him J C Heunis) for the respondent

Flynote : Sleutelwoorde

B Fundamental rights — Application of Chapter 3 of Constitution Act 200 of 1993 C to act occurring before commencement of Constitution — Search and seizure in terms of s 6(1) of Investigation of Serious Economic Offences Act 117 of 1991 taking place before commencement of Constitution — Search and seizure not constituting breach of fundamental rights since such rights had not yet come into D existence when events took place — Nor did the subsequent commencement of the Constitution render unlawful actions that were lawful at time at which they were taken.

Fundamental rights — Right of accused to a fair trial in terms of s 25(3) of Constitution Act 200 of 1993 — Admission of evidence obtained directly or derivatively as result of search and seizure authorised by s 6(1) of Investigation E of Serious Economic Offences Act 117 of 1991 in criminal proceedings against person from whom documents containing or pointing to evidence were seized — Fairness an issue having to be decided upon facts of each case by trial Judge — At times fairness might require that evidence unconstitutionally obtained be F excluded — But there will also be times when fairness will require that evidence, although obtained unconstitutionally, should nevertheless be admitted.

Headnote : Kopnota

Section 6(1)(a) of the Investigation of Serious Economic Offences Act 117 of 1991 empowers the Director of the Office for Serious Economic Offences or his or her G authorised representative to enter, inspect and search any premises in which he or she suspects there was anything relevant to an inquiry by him into a serious and complicated economic offence. Section 6(1)(d) authorises the seizure of anything found on the premises regarded by the Director as having a bearing on the inquiry. Section 7 provides that investigative data could be disclosed with the Director's consent.

H Representatives of the Director, acting on the authority of an order issued by the Director in terms of s 6(1) of the Act, searched the residence and offices of the applicant and seized a number of documents. On 3 February 1994 the applicant was indicted on a number of charges related to the affairs of a company in liquidation. He contended that the case against him was built up on the basis of the documents seized during the searches of his offices, consequent interviews with witnesses and a report I prepared by investigative accountants to whom the documents were made available under s 7 of the Act. In August 1994, before the matter came to trial, the applicant applied for and was granted an order referring to the Constitutional Court in terms of s 102(1) of the Constitution Act 200 of 1993 the issue of the constitutionality of ss 6 and 7 of the Act and the question whether evidence obtained in terms of ss 6 and 7 of the Act was admissible in the criminal proceedings against the J

1996 (2) SACR p114

A applicant. The applicant argued that ss 6 and 7 of the Act were in breach of s 13 of the interim Constitution (the right to personal privacy and the right not to be subject to searches and seizures).

Held, that none of the events of which the applicant complained - the search and seizure in terms of s 6 of the Act, the arrest of the applicant, the disclosure of documents seized to the accountants under s 7 of the Act, the preparation of their B report in which such documents were used and the formulation and service of the indictment in the criminal proceedings - constituted a breach of the applicant's constitutional rights since they had all taken place prior to the commencement of the interim Constitution: such rights had not yet come into existence when the events took place. Nor had the subsequent advent of the Constitution, by affording rights and C freedoms which had not existed before, rendered unlawful actions that were lawful at the time at which they were taken.

Du Plessis and Others v De Klerk and Another 1996 (3) SA 850 (CC) (1996 (5) BCLR 658) applied.

Held, further, that there was nothing inherently unfair in receiving in evidence material D which was properly garnered in the course of a lawful search and seizure. Moreover there was no warrant in justice for retroactively casting a blanket of illegality over what was properly unearthed according to the law as it stood at the time.

Held, further, that, even if one were to accept that s 6 was constitutionally invalid, and even if one were to assume that such invalidity in turn rendered the prior searches and E seizures unlawful, it did not follow that the evidence obtained directly or derivatively as a result of such searches and seizures would necessarily be inadmissible in criminal proceedings against the person from whom the documents containing, or pointing to, the evidence were seized. A criminal trial court will always have to be mindful of the fundamental rights entrenched in Chapter 3, ensuring in particular that the accused F enjoys the benefit of the right to a fair trial guaranteed by s 25(3) of the Constitution. Fairness was an issue which had to be decided upon the facts of each case, and the trial Judge was the person best placed to take that decision. At times fairness might require that evidence unconstitutionally obtained be excluded. But there would also be times when fairness would require that evidence, albeit obtained unconstitutionally, nevertheless be admitted.

G Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) (1996 (1) BCLR 1) applied.

Held, further, that, if the evidence to which the applicant objected was tendered in criminal proceedings against him, he would be entitled at that stage to raise objections to its admissibility: it would then be for the trial Judge to decide whether the H circumstances were such that fairness required the evidence to be excluded. The applicant was therefore not entitled to an order that the evidence secured as a result of the searches and seizures would be inadmissible in criminal proceedings against him.

Park-Ross and Another v Director: Office for Serious Economic Offences 1995 (2) SA 148 (C) overruled in part.

Held, accordingly, that the Court would make no order in regard to the question I whether ss 6 and 7 of the Act were inconsistent with the Constitution. The evidence procured pursuant to ss 6 and 7 of the Act prior to 27 April 1994 was not rendered inadmissible in criminal proceedings against the applicant solely by virtue of the coming into force of the Constitution. The question whether the admission of such evidence would in any way infringe the applicant's right to a fair trial was a matter to be decided by the trial Judge on the facts and circumstances established at the trial. J

1996 (2) SACR p115

Case Information

A Adjudication of a referral of constitutional issues to the Constitutional Court by the Cape Provincial Division in terms of s 102(1) of the Constitution of the Republic of South Africa.

S F Burger SC (with him D M Davis) for the applicant.

J J Gauntlett SC (with him J C Heunis) for the respondents.

Cur adv vult. B

Postea (1996 May 15).

Judgment

Kriegler J:

[1] The applicant is the accused in a pending criminal trial in the Cape of Good Hope Provincial Division of the Supreme Court (the 'CPD'). This case arises Cout C of the collapse of a group of companies with which the applicant was allegedly associated. The flagship of the group, Tollgate Holdings Ltd ('Tollgate') was finally wound up early in 1993. Some two weeks later representatives of the second respondent, acting on the authority of an order issued by him under s 6(1) of the Investigation of Serious Economic Offences Act 117 of 1991 ('the Act'), searched the D residence and offices of the applicant and seized a number of documents. On 3 February 1994 the applicant was indicted on a number of charges related to the affairs of Tollgate. He contends that the case against him has been built up on the basis of the documents seized during the searches of his offices, consequent interviews with witnesses and a report prepared by investigative accountants to whom the documents E were made available under s 7 of the Act. The trial was set down for hearing in October 1994 but in August of that year the applicant launched urgent motion proceedings, resulting inter alia in an order in the following terms:

'1.

The issues whether:

1.1

F ss 6 and 7 of the Investigation of Serious Economic Offences Act 117 of 1991 ('the OSEO Act') are in conflict with the Constitution of the Republic of South Africa Act 200 of 1993 ('the Constitution') and are, accordingly, invalid;

1.2

all evidence relating to the criminal proceedings in the matter of the State v M R Key ('the criminal proceedings') in the above G honourable...