Klein v Attorney-General, Witwatersrand Local Division, and Another

• Jurisdiction: South Africa
• Judge: Van Schalkwyk J
• Court: Witwatersrand Local Division
• Year: 1995
• Counsel: H Z Slomowitz SC and P Pretorius SC for the applicantJ S M Henning SC (with him P P Stander) for the first respondentE du Toit SC(with him P Louw) for the second respondent
• Citation: 1995 (2) SACR 210 (W)

Klein v Attorney-General, Witwatersrand Local Division, and Another
1995 (2) SACR 210 (W)

1995 (2) SACR p210

Citation	1995 (2) SACR 210 (W)
Court	Witwatersrand Local Division
Judge	Van Schalkwyk J
Heard	October 25-28, 1994; December 5, 1994; December 6, 1994
Judgment	March 16-17, 1995; March 31, 1995
Counsel	H Z Slomowitz SC and P Pretorius SC for the applicant; J S M Henning SC (with him P P Stander) for the first respondent; E du Toit SC(with him P Louw) for the second respondent

Flynote : Sleutelwoorde

Evidence — Privilege — Legal professional privilege — Violation of — E Remedies — Stay of prosecution — Information on computer restored after it had been erased by applicant who was indicted to stand trial — Information handed to prosecutor after it had been restored — Court holding that such violation did not per se exclude a fair trial — Court looking at circumstances in which the information had been obtained, the F content of the information and the nature of the defences the applicant had proffered, as well as an undertaking by the State not to use the material, and holding that applicant would not be prejudiced by the violation — Application for stay of prosecution dismissed.

Fundamental rights — Right to a fair trial — Effect of codification of G such right in Constitution Act 200 of 1993 — Apart from the provision of legal representation at State expense, common law principles have not been broadened or accentuated by codification thereof in the Constitution.

Headnote : Kopnota

The applicant had been indicted to stand trial in a regional court on H charges of fraud, theft, forgery and contraventions of the exchange control regulations. The charges arose out of his employment as the chief executive officer of a company, Boumat Ltd. After his arrest on the charges and release on bail, the applicant was informed by letter signed by the chairman of Boumat that he had been suspended from his position as chief executive officer and as a director of the company. A I disciplinary hearing was subsequently held, which concluded that the applicant was guilty of all the counts preferred against him and that he should be summarily dismissed. During the period of his employment the applicant was in possession of a computer which belonged to Boumat. After the conclusion of the disciplinary hearing he was requested to return the computer. Before doing so however, the applicant erased all the information contained within its memory. When the computer was returned to Boumat, officers of the company caused the erased information J on the computer to be

1995 (2) SACR p211

A restored. A copy of the restored information was handed to the prosecutor in the criminal trial. The prosecutor found the documents difficult to decipher and decided that they contained nothing that could contribute to the case or that might be used in the prosecution of the applicant. The process by which the information was retrieved from the computer was subsequently refined and documents were then produced which B were easily legible. Copies of this information were made, one of which was forwarded to the Attorney-General.

In the present application, the applicant applied for an order staying the prosecution. The applicant contended that first respondent, represented by the prosecutor at the criminal trial, as well as the potential State witnesses had penetrated information of a confidential nature which was privileged and that they therefore had knowledge of the defences which he intended to raise as well as the strategy to be adopted C during the course of the criminal trial. It was impossible for these persons to 'unlearn' the information of which they had knowledge and it was therefore impossible for a fair trial to be held. The applicant relied in this regard on the common law remedies available to a person whose privilege had been violated, as well as three rights protected by the Constitution Act 200 of 1993, namely the right to privacy in terms of D s 13; the right in terms of s 25(2)(c) not to be compelled to make a confession or admission which could be used against him; and the right to a fair trial in terms of s 25(3). It was contended on behalf of the applicant that the investigation of prejudice, actual or potential, was irrelevant in the instant case: the fact of the violation of the applicant's legal professional privilege meant that a fair trial could not be assured.

E Held, that apart from the right to legal representation at State expense, the common law principles had not been broadened or accentuated by the codification of the right to a fair trial in the Constitution: there had never been a principle that a violation of any of the specific rights encompassed by the right to a fair trial would automatically preclude the trial. Such a rigid principle would operate to the disadvantage of law F enforcement and the consequent prejudice of the society which the law and the Constitution is intended to serve. Before any remedy could be enforced the nature and extent of the violation had to be properly considered.

Held, further, that the fact that both the first and the second respondent (the Minister of Safety and Security) had not been guilty of any unlawful conduct did not per se preclude the remedy sought: it was at G least theoretically possible that the court would stay a prosecution in circumstances where no unlawful conduct had been committed by any of the law enforcement agencies.

Held, further, that an investigation of the circumstances under which the respondents came to be in possession of the retrieved computer documents as well as the contents thereof and the nature of the defences proffered H by the applicant led to the conclusion that this was not an exceptional case which would lead to the applicant having an unfair trial.

Held, accordingly, that the respondents had demonstrated that the applicant would not be prejudiced by the irregularity that had been committed: much of the information was undoubtedly privileged but the first respondent had given an undertaking that none of it would be used I during the trial. The application was accordingly dismissed.

Case Information

Application for an order staying a criminal prosecution in a regional court.

H Z Slomowitz SC and P Pretorius SC for the applicant.

J S M Henning SC (with him P P Stander) for the first respondent. J

1995 (2) SACR p212

E du Toit SC (with him P Louw) for the second respondent. A

Cur adv vult.

Postea (31 March 1995).

Judgment

Van Schalkwyk J:

The applicant has been indicted on several charges before the regional court in Johannesburg. The charges of fraud, theft, forgery and contravention of the Exchange Control Regulations arise out of two separate transactions which are alleged to have occurred during April to June of 1993 and December 1992 to February 1993, while the applicant was the chief executive officer of Boumat Ltd and a director of C Saficon Ltd. This application is brought for an order to have the proceedings in the regional court permanently stayed as well as for certain alternative and ancillary relief, including an order that the police docket in the criminal prosecution be made available to the applicant.

The applicant, a South African by birth, had lived for some 16 years in D the United States of America where he had conducted business as a management consultant. During 1992 he decided to return to South Africa and he then sought suitable employment. In due course he made contact with Mr Sydney Borsook who was then the deputy chairman (on the point of taking over as chairman) of Boumat. The principal shareholding in Boumat E is held by Saficon Investments Ltd and both companies are listed on the Johannesburg Stock Exchange. The majority shareholding in Saficon is held by Sakers Finance & Investment Corporation Ltd, which is also a listed public company. Sakers, in turn, is controlled directly or indirectly by the Borsook and Mintzer families or trusts. Borsook is F described in applicant's founding affidavit as the driving force of Sakers, Saficon and Boumat.

David Gevisser, who was about to retire as chief executive officer of Boumat, was well known to the applicant. The appointment of a chief executive officer of Boumat was a matter of concern to Borsook because G Boumat had performed poorly and the share price had fallen. According to the applicant, Borsook informed him that he had the ultimate authority to decide on the successor to Gevisser. Applicant and Borsook discussed the remuneration package which, as Gevisser's successor, he was to receive. Borsook informed the applicant that it was his policy that the various chief executive officers of the companies within the Saficon group should H receive similar remuneration packages. It was agreed that the applicant would be employed at an annual salary of R480 000 and a written contract of employment was concluded between the applicant and Borsook, acting on behalf of Boumat.

The applicant says, however, that he had informed Borsook that the I proposed salary was insufficient to enable him to meet his financial obligations. These, he said, included alimony payments which he had incurred and which he was obliged to pay in the United States. He therefore informed Borsook that he would, in addition, have to receive what he described as 'a cash payment in the United States'. He says that Borsook had no objection to this arrangement and it was agreed between J them that such payment was to be made. Borsook has strenuously denied

1995 (2) SACR p213

Van Schalkwyk J

A that any such underhand agreement was ever concluded between himself and the applicant.

There are, essentially, two transactions which are relevant to the charges against the applicant. The first (in the charge sheet though not in order of time)...