Khala v Minister of Safety and Security

• Jurisdiction: South Africa
• Citation: 1994 (2) SACR 361 (W)

Khala v Minister of Safety and Security
1994 (2) SACR 361 (W)

1994 (2) SACR p361

Citation	1994 (2) SACR 361 (W)
Court	Witwatersrand Local Division
Judge	Myburgh J
Heard	June 13-15, 1994; June 16, 1994
Judgment	July 25, 1994
Counsel	P J Pretorius and P R Jammy for the plaintiff; P J van R Henning SC (with him G J Marcus) for the defendant, E Mureinik as amicus curiae

Flynote : Sleutelwoorde

B Fundamental rights — Right of access to information — Police docket — Right to have access to prior to trial — Word 'required' in s 23 of Constitution Act 200 of 1993 to be given a generous and purposive construction — Analogy between American and Australian Freedom of C Information Acts and South African Constitution not a proper one — Proviso to s 23 making it clear that it was particularly apt to use s 23 to obtain discovery of documents from the State — Docket privilege not denying the essential content of the right of access of official information.

Fundamental rights — Right of access to information — Police docket — D Right to have access to prior to trial — Effect of Constitution Act 200 of 1993 — Reasonable that some information in police docket be privileged but this did not justify the prosecution in claiming privilege in respect of the whole docket — South African law of docket privilege ought to fall in line with that of other democratic societies.

E Fundamental rights — Enforcement of — Onus — Limitation of rights in terms of s 33 of Constitution Act 200 of 1993 — Party seeking to uphold limitation of fundamental right bears the onus of showing on a balance of probabilities that such limitation reasonable and justifiable as provided by s 33.

Headnote : Kopnota

F The plaintiff instituted action against the defendant in a Local Division for damages for unlawful arrest and detention. The action arose out of the arrest of the plaintiff on 11 July 1992 on a charge of fraud and his subsequent release on 13 July. Despite the fact that no further steps were taken against the plaintiff, the State contended, in an affidavit by a Deputy Attorney-General, that it still intended to proceed with the G prosecution and that there were other accused involved in the same case who were being sought by the police.

After the Constitution of the Republic of South Africa Act 200 of 1993 came into operation the plaintiff applied for an order that the defendant make available for inspection and copy the documents which had been listed in a schedule to the defendant's discovery affidavit as being privileged. H These documents were contained in the police docket and consisted of statements of witnesses, correspondence and inter-departmental reporting and the investigation diary. The defendant opposed the application chiefly on the basis of an affidavit by the Commissioner of Police who based his refusal to disclose the contents of the docket on four grounds, viz

(1)

I The police (as happened throughout the world) relied on a network of informers whose safety and future usefulness would be jeopardised by disclosure of their identities.

(2)

New techniques of investigation necessary in the war against crime could not be disclosed without the public interest being compromised.

(3)

Disclosure of co-operation between the South African Police and the J police forces of other countries would jeopardise the exchange of

1994 (2) SACR p362

A information which was vital to the operation of the police force.

(4)

The South African Police relied on information from members of the public who would refuse to co-operate because of the fear of victimisation if such co-operation were revealed.

Held, that the word 'required' as used in s 23 of the Constitution had to B be given a generous and purposive interpretation.

Held, further, that, while the word did not mean 'dire necessity' or 'desired', it was not possible to give the word a precise meaning and the enquiry in each case was a factual one, viz was the information required for the protection of a person's rights?

Held, further, that the plaintiff clearly required the information in the docket for the exercise or protection of his rights. C

Held, further, that the analogy between the American and Australian Freedom of Information Acts and the South African Constitution was not a proper one: in those statutes the public was given a general right of access to information on request, subject to certain specified exemptions; s 23 was however both narrower and broader in scope - narrower in that the D public was not given a general right of access to information but broader in that it was not subject to the specific exemptions contained in the foreign Acts; in order for the State to successfully resist a claim for information it would have to satisfy the requirements of s 33 of the Constitution in each case.

Held, further, that the proviso to s 23 made it clear that it was particularly apt to use s 23 to obtain discovery of documents from the State.

E Held, further, that docket privilege did not deny the essential content of the right of access to official information enjoyed specifically by the plaintiff or generally by members of the public.

Held, further, that the onus of proving that a limit on the right of freedom guaranteed by the Constitution was reasonable and demonstrably justified in a free and democratic society rested upon the party seeking to uphold the limitation and the standard of proof was on a balance of probabilities.

F Held, further, that as a matter of public policy it was reasonable that some information in a police docket should be privileged and even that all information in the docket should not be disclosed to an accused for a prescribed period.

Held, further, that as regards the non-privileged information in the police docket, the defendant had failed to provide any justification G therefor: it was not a reasonable limitation of the right of access to information for the defendant to provide a justification only in respect of the privileged information in the docket.

Held, further, that in comparing the South African common-law docket privilege to the rules of practice in other countries it appeared that, in general, while South African Courts were progressively imposing greater H restrictions on an accused's rights of access to information in a police docket, the practice in those democratic societies was to expand an accused's rights of access to information in the possession of the prosecution.

Held, further, that our law ought to fall in line with the international trend: the policy considerations of disclosing relevant unprivileged information in the police docket to the accused before trial should outweigh those in favour of not making disclosure. I

Held, further, that the defendant had failed to prove on a balance of probabilities that the privilege in relation to relevant unprivileged information in the police docket in a criminal trial was reasonable and justifiable in an open and democratic society based on freedom and equality and that the privilege claimed in the instant case, in the broad J terms in which it was claimed, had not been established.

1994 (2) SACR p363

A Held, further, that on the information before the Court the docket was dormant and the prospect of the criminal trial proceeding was negligible; the risk that the State would suffer prejudice if the plaintiff now had access to the police docket was minimal and any prejudice that the State might suffer in the criminal trial by the plaintiff having access to the police docket in the civil action was outweighed by the plaintiff's right to have access to the relevant unprivileged information in the docket. B

As the Court was uncertain whether there was any privileged information in the police docket it did not make an order that the defendant had to disclose all the matter in the docket. The defendant was accordingly given an opportunity to establish privilege in respect of particular items in the docket. C

Case Information

Application for an order that the defendant make available for inspection and copy certain documents in the possession of the defendant.

P J Pretorius and P R Jammy for the plaintiff.

P J van R Henning SC (with him G J Marcus) for the defendant.

E Mureinik as amicus curiae. D

Cur adv vult.

Postea (25 July 1994).

Judgment

Myburgh J:

Introduction E

The plaintiff was arrested on 11 July 1992 by a policeman, acting in the course and scope of his employment with the defendant, and detained until 13 July 1992. Arising from that arrest and detention the plaintiff instituted an action against the defendant for damages on the basis that the arrest and detention were unlawful. The defendant pleaded that the F plaintiff was lawfully arrested and detained in that the policeman had a reasonable suspicion that the plaintiff had committed the crime of fraud.

When the defendant made discovery in terms of Rule 35 of the Uniform Rules of Court, he disclosed police docket Norwood MR155/07/92 in the second schedule to the discovery affidavit. Item 4 of the second schedule was: G

'Deel "A" van polisiedossier Norwood MR155/07/92 wat bevat verskeie verklarings van getuies is gepriviligeerd.

Deel "B" van gemelde dossier wat bevat korrespondensie en interdepartementele rapportering is gepriviligeerd. H

Deel "C" van gemelde dossier wat bevat die ondersoekdagboek is gepriviligeerd.'

After the Constitution of the Republic of South Africa Act 200 of 1993 ('the Constitution'), came into effect on 27 April 1994, the plaintiff launched an application for an order that the defendant be directed to make available for inspection and copy, documents listed as item 4 of the second schedule to the defendant's discovery affidavit. I

Relevant provisions of the South African Constitution

In the...