Thint (Pty) Ltd v National Director of Public Prosecutions and Others; Zuma v National Director of Public Prosecutions and Others

• Jurisdiction: South Africa
• Judge: Langa CJ, O'Regan ADCJ, Madala J, Mokgoro J, Ngcobo J, Nkabinde J, Skweyiya J, Van Der Westhuizen J, Yacoob J, Jafta AJ and Kroon AJ
• Judgment Date: 31 July 2008
• Citation: 2009 (1) SA 1 (CC)
• Docket Number: CCT 89/07 and 91/07
• Counsel: P Hodes SC (with A Katz and M Collins) for the applicant in case No 89/07. KJ Kemp SC (with MDC Smithers and TS Khuzwayo) for the applicants in case No 91/07. W Trengove SC (with RJ Salmon SC and AM Breitenbach) for the respondents.
• Court: Constitutional Court

Langa CJ: G

Introduction

[1] This case concerns various search and seizure warrants issued H purportedly in terms of s 29 of the National Prosecuting Authority Act [1] (the Act) by a judge. It concerns the validity of the terms of those warrants and the lawfulness of the manner of their execution. Finally, it raises a question about the appropriate relief for an unlawful search and seizure operation in the context of the fight against serious, complex and I organised crime.

[2] The two applications before this court were heard together by direction of the Chief Justice. They are applications for leave to appeal against two judgments handed down by the Supreme Court of Appeal on

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8 November 2007. [2] In both judgments, that court held by a majority A that the application for, issue, and execution of, the respective warrants were lawful. The orders respectively overturned the judgment of Hurt J in the Durban High Court [3] and confirmed the judgment of Du Plessis J in the Pretoria High Court. [4] The applicants now apply to this court to have the two orders of the Supreme Court of Appeal set aside. B

[3] In the first application, the applicant is Thint (Pty) Ltd (Thint), a company incorporated in South Africa and carrying on business in Pretoria. In the second application, the applicants are Mr Jacob Zuma [5] (Mr Zuma) and Mr Michael Hulley (Mr Hulley), the current attorney of C Mr Zuma. The first and second respondents in both applications are the National Director of Public Prosecutions (NDPP) and the Investigating Director of the Directorate of Special Operations (Investigating Director). The third respondent in the first application is Mr Johan du Plooy (Mr Du Plooy), a Senior Special Investigator in the employ of the Investigating Director. The third respondent in the second application is D the Director of Public Prosecutions in Durban. The respondents are referred to interchangeably as the State or the prosecution.

Complaints to the Judicial Service Commission

[4] After judgment was reserved in these cases on 13 March 2008, E certain events occurred that resulted in a complaint being lodged with the Judicial Service Commission (JSC) by judges of this court. The complaint was against the alleged conduct of a judge from one of the High Courts, the basis of which was that he had allegedly tried improperly to influence two judges of this court to decide these cases in F favour of one of the parties in these cases. It is now common cause that the High Court judge did visit the judges of this court. There is a dispute about the content of the discussions that took place during the visits. The High Court judge has in turn lodged a counter-complaint against the judges of the Constitutional Court alleging improper conduct on their part which amounted to a violation of his constitutional rights. The basis G of his complaint is the issuing by the judges of this court to the media of a statement about their complaint to the JSC, which is also common cause. The two complaints are the subject of an inquiry by the JSC and it is not necessary or desirable to go into detail for present purposes.

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A [5] After the complaints had been lodged, Mr Zuma's attorney, Mr Hulley, wrote to the Chief Justice expressing concern about the possibility of this judgment being delayed consequent upon the complaints before the JSC as well as possible negative implications for Mr Zuma. Responding to this, directions were issued by the Chief Justice inviting the parties, if B they so wished, to make submissions arising out of Mr Hulley's letter. The parties have made their submissions, with none of them expressing a direct concern that the cases would not be decided fairly consequent upon the events leading up to the complaint to the JSC. Indeed the State indicated expressly that it had no concerns in relation to the fairness of the proceedings. The response of the applicant Thint, however, contains C a criticism of the procedure followed by the court in laying the complaint against the High Court judge.

[6] It is necessary therefore to address the question whether the alleged improper approaches have had any effect on the content of the judgments D being delivered in these cases or on the way in which they have been decided. All the members of the court who sat in the two applications now before us (as well as in two applications heard simultaneously, which concerned a letter of request to Mauritian authorities for documents relating to Thint and Mr Zuma), have considered their position in the light of the events mentioned above and E their responsibilities as judges of this court. We are satisfied that the alleged acts that form the basis of the complaint to the JSC by judges of this court have had no effect or influence on the consideration by the court of the issues in these cases and in the judgments given. It is recorded in the statement of complaint that there is no suggestion that F any of the parties in these cases has had anything to do with the alleged conduct that forms the basis of the complaint by the judges of the court. The issues relating to the complaint have accordingly been kept strictly separate from the adjudication process in these cases. It is, however, important to emphasise that the cases have been considered and decided in the normal way, in accordance with the dictates of our Oath of Office G and in terms of the Constitution and the law, without any fear, favour or prejudice.

Application for condonation

[7] The State filed its opposing affidavits to both applications for leave to H appeal two days late. It has applied for condonation, stating that it had proved impossible to answer the applications within the 10-day period permitted by the rules of this court. This was because of the sheer volume of the work involved and the limited availability of counsel over the summer holiday period. The applicants do not oppose this application. It is my view that it would be in the interests of justice to grant I condonation given the overwhelming public importance of the case, the lack of prejudice to the applicants, and the relatively short delay.

Disputes of fact

[8] Before traversing the factual background, it is necessary to resolve a J preliminary issue. Various disputes of fact appear in the record. It is trite

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that factual disagreements in motion proceedings are to be dealt with in A accordance with the rule in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd, [6] which stipulates that, subject to certain exceptions, a court should rely only on evidence given by the deponents for the respondents. In deciding which parties count as the respondents in the two applications now before this court, it is necessary to draw a B distinction between disputes of fact relating to the authorisation of search warrants in terms of s 29 of the Act and disputes of fact relating to the subsequent execution of those warrants. [7]

[9] The former disagreements relate to the facts placed before a judge in chambers as part of an application for the issue of a warrant in terms of C s 29. There is persuasive authority for the proposition that, where such an application is brought ex parte, it is by its nature provisional and subject to subsequent reconsideration after all the parties who have an interest have been heard. [8] Therefore, where a party subsequently challenges the ex parte issue of a warrant, it may be correct for the purposes of the rule in Plascon-Evans to treat that party as the respondent, D even where the challenge takes the form of a fresh application on notice of motion. As will become apparent, however, it is unnecessary for the purposes of the applications before this court to decide this question finally, because none of the material factual disputes falls into this category.

[10] The latter disagreements are different because they are factual E disputes concerning what happens during the execution of a warrant. Where a party challenges the lawfulness of a warrant's execution on notice of motion and disputes of fact arise, that party remains the applicant, and the prosecution must accordingly be treated as the F respondent under the Plascon-Evans rule. As far as this category of factual disputes is concerned, it is the State's version that must be accepted. That is the approach I take to the various factual disagreements arising in these two applications which relate to the execution of the warrants.

Factual background G

[11] On 6 November 2000 the Investigating Director instituted a 'preparatory investigation' in terms of s 28(13) of the Act, [9] which was aimed at determining whether there were reasonable grounds to conduct an investigation, in terms of s 28(1)(a), into allegations of corruption H and fraud in connection with government contracts for the supply of

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A armaments. By 24 August 2001 the Investigating Director had decided to launch an investigation contemplated by s 28(1), and Mr Du Plooy was designated to conduct it in terms of s 28(2)(a). In terms of s 28(2)(b), a person thus designated exercises all the powers of the Investigating Director under ss 28 and 29. In October 2002 the B investigation was extended to include inquiries into suspected offences of fraud, corruption, theft and tax evasion by Mr Schabir Shaik (Mr Shaik) and various companies controlled by him. On 2 June 2005 the Durban High Court convicted Mr Shaik and his companies of corruption and fraud, and sentences of imprisonment and the payment of fines were imposed. [10] Originally, Thint had been indicted together with Mr Shaik C and his companies, but the charges against it were withdrawn on 11 October 2004, before the trial...