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

• Jurisdiction: South Africa
• Citation: 2009 (1) SA 1 (CC)

Thint (Pty) Ltd v National Director of Public Prosecutions and Others;
Zuma v National Director of Public Prosecutions and Others
2009 (1) SA 1 (CC)

2009 (1) SA p1

Citation	2009 (1) SA 1 (CC)
Case No	CCT 89/07 and 91/07
Court	Constitutional Court
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
Heard	March 11, 2008; March 12, 2008; March 13, 2008
Judgment	July 31, 2008
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.

Flynote : Sleutelwoorde B

Criminal procedure — Search and seizure — - Search — Search warrant — Validity C — Warrants issued in terms of s 29 of National Prosecuting Authority Act 32 of 1998 — Whether necessary for authorities to give notification of application for warrants — Default position being that application in terms of s 29 made without notice to affected parties — References to 'issued in D chambers' and to Investigating Director entering premises 'without prior notice' indicating that Legislature not intending that notice be given — This in accordance with common sense: suspects receiving notice may remove or destroy evidence — In casu this risk present — Accordingly, no compelling reason to require State to depart from ordinary procedure of not giving notice. E

Criminal procedure — Search and seizure — Search — Search warrant — Validity — Warrants issued in terms of s 29 of National Prosecuting Authority Act 32 of 1998 — Whether State failing to disclose relevant facts in ex parte application for warrant — Trite that applicant in ex parte application bearing duty of utmost good faith in placing all relevant material facts before F court — However, investigator not expected to disclose facts of which he or she unaware — Duty limited to material facts — No crystal-clear distinction between facts which were material and facts which were not — Accordingly, applicant having to make judgment as to which facts might influence judicial officer, and which facts, though connected, not sufficiently relevant to justify inclusion — Test of materiality not to be set at level that rendered G

2009 (1) SA p2

A it practically impossible for State to comply with duty of disclosure, or which would result in applications being so large that they would swamp ex parte judges.

Criminal procedure — Search and seizure — Search — Search warrant — Validity of — Warrants issued in terms of s 29 of National Prosecuting Authority B Act 32 of 1998 — Whether State to disclose to ex parte judge that 'substantial risk' existing that privileged documents would be discovered during search — Whether this risk requiring explicit reference to s 29(11) of Act to be included in warrant — Any judge issuing search warrant appreciating risk that privileged documents might be discovered during search — Section 29(11) legislative tool established to manage situation that arose C when privilege was claimed in respect of items discovered during search — Such items to be kept in safe custody by registrar of High Court until court determining whether or not items indeed privileged — Section 29(11) coming into operation only if claim of privilege made during search — Where no such claim made, but privileged documents seized, ordinary rules of privilege applying and State not able to use documents in criminal D proceedings — Accordingly, not necessary for State to say anything in its affidavit regarding risk of discovering privileged documents.

Criminal procedure — Search and seizure — Search — Search warrant — Validity of — Warrants issued in terms of s 29 of National Prosecuting Authority Act 32 of 1998 — Whether State establishing need for search and seizure E operation — Whether State required to establish that no other, less invasive means would produce documents or items sought — Given that s 29 used only to investigate serious crimes with heavy penalties of imprisonment, real possibility that request under summons provisions of s 28 not resulting in furnishing of incriminating items — Requiring State to follow s 28 first, destroying any element of surprise and often completely F undermining investigation — Judicial officer to ask whether reasonable in circumstances for State to seek warrant and not to employ other, less invasive means — This requiring judicial officer to consider whether appreciable risk existing that State would not be able to obtain evidence by less invasive route — Judicial officer to take into account constitutional rights or G interests that might be limited by search and seizure, as well as possibility that, if notice given of search, incriminating materials might be destroyed or concealed — In casu, at very least appreciable risk existing that applicants would not respond truthfully and honestly to s 28 summons — This sufficient to establish 'need' for s 29 search and seizure.

Criminal procedure — Search and seizure — Search — Search warrant — Validity H of — Warrants issued in terms of s 29 of National Prosecuting Authority Act 32 of 1998 — Whether necessary for State's affidavit to deal expressly with every class of document referred to in search warrants — Terms in which alleged crimes described in State's affidavit sufficiently wide to include persons or entities not mentioned in affidavit itself — Issuing judge having affidavit as well as draft warrants, and knowing that documents I concerning persons and entities mentioned therein possibly material to alleged crimes — In such circumstances, to require each and every person or entity mentioned in warrants to be mentioned in affidavit over-technical.

Criminal procedure — Search and seizure — Search — Search warrant — Validity — Warrants issued in terms of s 29 of National Prosecuting Authority Act J 32 of 1998 — Question of whether warrants unduly vague and overbroad to

2009 (1) SA p3

be assessed in light of common-law principle that warrant must convey A intelligibly, to both searcher and searched, ambit of search it authorised and, in light of requirements of s 29 of Act, interpreted so as to promote spirit, purport and objects of Bill of Rights — Over-literal interpretation of s 29(1) seeming to authorise unlimited search — This inimical to constitutional right to privacy — But s 29(1) qualified by s 29(2), which providing that any search operation must be conducted with strict regard to decency B and order, including searched person's rights to dignity, freedom and security of person, and personal privacy — Investigators to restrict their search, examination and seizure to those classes of items that they have reason to believe might have bearing on investigation — Such reason to be sufficiently plausible to outweigh countervailing risk that item irrelevant to investigation, and that examining it amounting to invasion of privacy. C

Criminal procedure — Search and seizure — Search — Search warrant — Validity — Warrants issued in terms of s 29 of National Prosecuting Authority Act 32 of 1998 — Intelligibility of warrant — Section 29(9)(a) providing that copy of warrant must be provided to searched person — Section 29(9)(b) placing D duty on investigator to answer questions about scope of search — Thus, searched person could request further particulars from officials carrying out search — Therefore, warrants not always required to be drafted in terms that everyone subjectively understood, nor needing to define scope of search in absolutely exhaustive or perfect way — Test for intelligibility objective one: warrants must be 'reasonably intelligible', in sense that they E were reasonably capable of being understood by reasonably well-informed person with grasp of relevant empowering legislation and nature of offences under investigation — Unrealistic to expect terms of warrant, possibly supplemented by investigator's explanation in terms of s 29(9)(b), to place searched lay person in position to determine exactly which items could be seized and which not. F

Criminal procedure — Search and seizure — Search — Search warrant — Validity — Warrants issued in terms of s 29 of National Prosecuting Authority Act 32 of 1998 — Not permissible to consider sources beyond warrant in order to determine its general ambit and its intelligibility — Warrant to state at least the following, in manner that was reasonably intelligible without G recourse to external sources of information: statutory provision in terms whereof it was issued; to whom it was addressed; powers it conferred upon addressee; suspected offences under investigation; premises to be searched; and classes of items reasonably suspected to be in or on premises — Different, however, where purpose of considering information external to warrant was to determine whether particular item was relevant H to investigation — This possibly depending on host of factors beyond terms of warrant.

Criminal procedure — Search and seizure — Search — Search warrant — Validity — Warrants issued in terms of s 29 of National Prosecuting Authority Act 32 of 1998 — Warrants containing 'catch-all' paragraphs referring to any I document, of whatever nature or content, having or possibly having bearing on investigation — Such paragraphs not unduly vague or overbroad — Possible that certain documentation relevant to investigation not falling into categories covered by other paragraphs in warrant — Unreasonable to expect investigators to specify in advance every possible class of item relevant to investigation that might be found during search. J

2009 (1) SA p4

A Criminal procedure — Search and seizure — Search — Search warrant — Validity — Warrants issued in terms of s...