National Director of Public Prosecutions v King

• Jurisdiction: South Africa
• Citation: 2010 (2) SACR 146 (SCA)

National Director of Public Prosecutions v King
2010 (2) SACR 146 (SCA)

2010 (2) SACR p146

Citation	2010 (2) SACR 146 (SCA)
Case No	86/09
Court	Supreme Court of Appeal
Judge	Harms DP, Nugent JA, Mlambo JA, Malan JA and Majiedt AJA
Heard	February 15, 2010
Judgment	March 8, 2010
Counsel	W Trengove SC (with G Budlender SC and J Cassette) for the appellant.; M Chaskalson (with A Stein) for the respondent.

Flynote : Sleutelwoorde

Appeal — In what cases — Before finalisation of trial — Against order of High Court granting accused right to full description of contents of docket and reasons for denial of access thereto — Issue being whether 'order' was in C substance, and not in form, of final effect — 'Order' appearing to be interlocutory and, therefore, not of final effect — However, on closer examination order final in substance: criminal trial could not begin without compliance therewith — Court issuing order bound thereby — Accordingly, matter appealable.

D Fundamental rights — Right of access to information — Police docket — Applicant for access to information having to base case on Promotion of Access to Information Act 2 of 2000 — Respondent not complying with formalities — Section 7 providing that Act not applying to records requested for purpose of criminal or civil proceedings if access to record provided for 'in any other law' — 'Other law' including rules relating to discovery — Once court proceedings E commencing, rules of discovery taking over.

Fundamental rights — Right to a fair trial — Right of access to information — Contents of sections B and C of police docket — Accused claiming right to full description of contents of sections B and C of docket, and reasons for State denying him access thereto — Whether right asserted was reasonably F required for fair trial — No such thing as perfect justice — Discovery in criminal case always compromise — Fairness not meaning accused could unilaterally demand most favourable treatment — Also requiring fairness to public, represented by State — Fair trial right not encouraging preliminary litigation — Document possibly relevant to prosecution without being relevant to accused's guilt or defence — Most material covered by litigation G privilege in criminal cases not discoverable because not germane to conduct of trial — Trite that relevant documents having to be discovered — However, present matter about accused's right to motivated index enabling him, without having established any prima facie facts, to audit sections B and C of docket — While accused need not be satisfied with say-so of prosecution, initial decision remaining that of prosecution, and if H this shown to be wrong during trial, court might order further discovery.

Headnote : Kopnota

Police dockets normally consist of three sections. Section A contains witness statements, expert reports and documentary evidence; section B contains internal reports and memoranda; and section C contains the investigation diary. An accused is entitled to see those contents of the docket that are I relevant for the exercise of the right to a fair trial. In casu the respondent, who was facing some 322 counts, mostly of a commercial nature, sought - and was granted - an order in the High Court compelling the appellant to provide him with a full description of each and every document to which the State had denied him access, being documents in sections B and C of the docket, as well as a statement of the precise basis upon which access had J been denied. The question to be decided on appeal was whether or not an

2010 (2) SACR p147

accused was entitled to such a 'motivated index' in order to satisfy himself A in advance that his trial would be fair.

Held (per Harms DP; Nugent JA, Mlambo JA, Malan JA and Majiedt AJA concurring), that while constitutions called for a generous interpretation in order to give full effect to the fundamental rights and freedoms they created, this did not mean that any meaning, however wishful, could be attached to a right such as the right to a fair trial. The question was whether the right B asserted was a right that was reasonably required for a fair trial. There was no such thing as perfect justice; discovery in a criminal case must always be a compromise. Fairness in a trial did not mean that an accused could unilaterally demand the most favourable treatment; it also required fairness to the public, represented by the State. The fair trial right did not mean a predilection for technical niceties and ingenious legal stratagems; neither C should it encourage preliminary litigation, a pervasive feature of 'white collar' criminal cases which the courts, within the confines of fairness, should actively discourage. (Paragraphs [4]–[5] at 151d–152c.)

Held, further, that a document might be relevant to the prosecution without being relevant to the accused's guilt or defence. For example, opinions by D prosecutors, notes on legal research, and copies of judgments, were clearly relevant to the prosecution, but they were not relevant for the purpose of making full answer and defence. Most of the material covered by litigation privilege in criminal cases would, in any event, not be discoverable because it was not germane to the conduct of the trial. As for the argument that 'the mere ipse dixit' of the State was not sufficient to justify the withholding of 'relevant documents', it was trite that if documents were relevant they had E to be discovered. However, the present matter was about the respondent's right to a motivated index that would enable him, without having established any prima facie facts, to audit sections B and C of the docket. Certainly, an accused need not be satisfied with the say-so of the prosecution, but the initial decision remained that of the prosecution, and if this were shown to be wrong during the trial, a court might order more. F (Paragraphs [30]–[32] at 159h–160g.)

Held, further, regarding the argument that the respondent was entitled to access the information in the docket by virtue of the constitutional right of access to State-held information, that once the Promotion of Access to Information Act 2 of 2000 (the Act) had come into operation, an applicant for access to information had to base his case on the Act, and could not rely on G s 32(1) of the Constitution, simpliciter. Apart from certain formalities required by the Act, with which the respondent had not complied, at a substantive level s 7 provided inter alia that the Act did not apply to records requested for the purpose of criminal or civil proceedings, if access to the record were provided for 'in any other law'. 'Other law' in this context included the rules relating to discovery, disclosure and privilege. In other H words, if access to information were requested for the purpose of criminal proceedings, the right thereto had to be sought elsewhere than in the Act; once court proceedings had commenced, the rules of discovery took over. (Paragraphs [36]–[39] at 161i–162i.)

Held, further, regarding the respondent's argument that the order granted him by I the High Court was not appealable, the issue was whether the 'order' was in substance, and not in form, final in effect. In other words, was it capable of being amended by the trial court? The 'order' appeared to be interlocutory and, since such orders were usually not judgments or orders, but rulings, it was easy to understand why it appeared prima facie not to be final in effect. However, on closer examination it was final in substance: the criminal trial could not begin without compliance with the order and, in any J

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A event, the criminal court would be bound by the decision. Accordingly, the court a quo had been correct in holding that the matter was appealable. (Paragraphs [42]–[45] at 163e–165d.)

Held (per Nugent JA; Harms DP, Mlambo JA, Malan JA and Majiedt AJA concurring), that the only purpose that would be served by the production of the list the respondent required, and evidently the purpose for which it B was required, was to enable him to satisfy himself, as a precondition to his being tried, that his trial would be fair. The right to a fair trial did not go that far; it entitled the respondent to be tried fairly in fact, not to be satisfied that the trial would be fair. The prosecution was not called upon, as a precondition to prosecuting, to satisfy an accused person that his or her trial would be fair. If that were to be required, there might be very few criminal C trials at all. (Paragraphs [57] and [58] at 168f–h.)

Appeal upheld. Order granted in the court a quo set aside.

Annotations:

Cases cited

Reported cases

Southern Africa

Beinash v Wixley1997 (3) SA 721 (SCA) ([1997] 2 All SA 241): followed

Clipsal Australia (Pty) Ltd and Others v Gap Distributors and Others2010 (2) SA 289 (SCA) ([2009] 3 All SA 491): followed

Crown Cork & Seal Co Inc and Another v Rheem South Africa (Pty) Ltd and E Others1980 (3) SA 1093 (W): referred to

Ecker v Dean 1937 SWA 3: referred to

Key v Attorney-General, Cape Provincial Division, and Another1996 (2) SACR 113 (CC) (1996 (4) SA 187; 1996 (6) BCLR 788): referred to

Liberty Life Association of Africa Ltd v Niselow (1996) 17 ILJ 673 (LAC): referred to

Metlika Trading Ltd and Others v Commissioner, South African Revenue Service2005 (3) SA 1 (SCA) (2004 JTLR 73; [2004] 4 All SA 410): referred to F

Minister of Health and Another NO v New Clicks South Africa (Pty) Ltd and Others (Treatment Action Campaign and Another as Amici Curiae) 2006 (2) SA 311 (CC) (2006 (1) BCLR 1): referred to

Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service1996 (3) SA 1 (A): referred to

R v Milne and Erleigh (1) 1950 (4) SA 591 (W): referred to G

R v Steyn1954 (1) SA 324 (A): referred to

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