[15]
Annexure A, to which reference is made in the first paragraph of the preamble of all the warrants, was also
in identical terms in the case of each warrant except in the case of the warrant authorised in respect of the offices of the second
respondent, Mr Hulley, which I shall deal with presently. It contained twenty-three numbered paragraphs which followed the wording
of paragraphs 2 to 24 of Annexure A to the warrants authorised for the search at the residence and offices of Ms Mahomed which formed
the subject matter of the application heard by Hussain J in the Johannesburg High Court and which are printed in full at pages 514
to 517 and 519 to 522 of the report of his judgment.
[16]
The copy of Annexure A annexed to the warrant authorising the search of the offices of the second respondent had only two paragraphs.
The first paragraph read as follows:
‘Any records of whatever nature that Hulley and Associates received from Schabir Shaik and any of the Nkobi entities or any other source
in approximately July 2005 concerning the affairs of Jacob Zuma, and specifically records kept or compiled by Schabir Shaik in his
capacity as financial adviser to Jacob Zuma.’
[17]
The wording of the second paragraph followed the wording of the twenty third paragraph of Annexure A in the other warrants under consideration
in this case and the twenty fourth paragraph of that Annexure in the two warrants printed at the end of Hussain J’s judgment
to which I have referred. Hurt J described it as a ‘catch-all paragraph’. It read as follows:
‘In general any record or financial records of whatever nature, including ledgers, cash books, company registers, share registers,
share certificates, bank documents, notes, minutes of meetings, diary entries, records of telephone conversations and any other correspondence,
e mails, faxes, documentation, or electronic computer data which have a bearing or might have a bearing on the investigation. Electronic
computer data includes computers, laptops, stiffies, hard drives, compact discs, data cartridges, backups, electronic devices and
any other form in which electronic information can be stored or saved. Records of telephone conversations include cell phone data
stored in any cell phones.’
[18]
Annexure B, to which reference was made in the authorising paragraph of all the warrants, was identically worded in each case. It
read as follows:
‘1.
Making two mirror images (complete disc copies) of computers, laptops notebooks or hard drives,
or any other electronic device on which information can be stored or saved, such as stiffies, compact discs and floppies.
2.
Making digital images of any of the above for identification purposes.
3.
Seizing computer hardware and software components and computer manuals necessary to facilitate
forensic analysis.
4.
Thereafter, and at a location removed from the premises, conducting searches by way of forensic analysis to identify and retrieve
all information which has a bearing, or might have a bearing, on the investigation in question.’
[19]
There was a dispute on the affidavits as to what happened when the warrant authorised in respect of the second respondent’s
offices was executed. Hurt J (at 489 b) relied only on the evidence given by the deponents for the appellants. (In doing so he was
in my view correct, as the rule in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) clearly applies, at least as far as disputes of fact relating to the execution of the warrants is concerned: whether
it also applies in respect of disputes relevant to the authorisation of the warrants need not now be considered.)
[20]
According to the version relied on by the learned judge Mr Johannes van Loggerenberg, a senior special investigator employed at the
Directorate of Special Operations, who was the leader of the team which executed the search warrant at the second respondent’s
offices, arrived at the offices with a team of seven searchers before the second respondent did. When the second respondent arrived,
Mr van Loggerenberg gave him a copy of the warrant which he read. He then informed Mr van Loggerenberg and his team that he could
assist them by pointing out the documents he had received relating to the first respondent. (The reference was clearly to the documents
referred to in the first paragraph of Annexure A to the warrant which he had read.) Mr van Loggerenberg followed the second respondent
to his filing office where he pointed out two file boxes (which were still unopened), on the side of each of which was a foolscap
page reflecting the contents of each box. With the agreement of Mr van Loggerenberg the second respondent made copies of the inventories
of each box. The boxes were seized and the second respondent was given a receipt for them. Some time thereafter the second respondent,
who had been telephoned by the first respondent and told of the searches in Johannesburg and Nkandla, left for the airport en route
to Johannesburg. On his way to the airport he telephoned Mr Anton Steynberg, a Deputy Director of Public Prosecutions, stationed
at the regional office of the Directorate of Special Operations, KwaZulu-Natal, and told him that he wanted to challenge the lawfulness
of the searches and that for that purpose he needed a copy of Mr du Plooy’s affidavit pursuant to which the warrants had been
obtained. After contacting his leader, Mr WJ Downer SC, who was in charge of the investigation, Mr Steynberg reverted to the second
respondent and told him that he could obtain a copy of the affidavit from the registrar of the Pretoria High Court. The second respondent
then asked whether all the documents seized could be sealed and lodged with the registrar of the High Court until the lawfulness
of the search had been determined. Mr Steynberg’s response was that he would check with Mr Downer but that the law did not
make provision for documents to be lodged with the registrar in such circumstances. He then spoke to Mr Downer, who agreed with his
approach. When he next spoke to the second respondent, who by this time had arrived in Johannesburg, Mr Steynberg told him what Mr
Downer had said and suggested that he contact him. Thereafter the second respondent telephoned Mr Downer and requested him to stop
the search until he had a copy of Mr du Plooy’s affidavit and had had an opportunity to apply for a court order declaring the
search of his offices unlawful. Mr Downer declined this request. He stated in his affidavit that the second respondent made no other
request of him and did not claim privilege in respect of any of the documentation which had been in his possession. ‘All he
did’, said Mr Downer, ‘was to ask me what would happen if any documents were privileged and I said to him that he must
decide which documents he considered to be privileged.’ Mr Downer also said to the second respondent that it did not seem to
him that any of them could be privileged because they emanated from Mr Shaik’s attorney, Mr Parsee, according to whom they
consisted of financial records.
[21]
Later that day the second respondent spoke to Mr George Baloyi, a Deputy Director of Public Prosecutions attached to the office of
the Director of Public Prosecutions, Pretoria. He asked Mr Baloyi to agree to his proposal that the papers seized at his offices
be deposited with the registrar. He stated that he needed time to peruse the papers, consult with counsel and then make a decision
whether to challenge the legality of the search warrants. ‘His request was’, said Mr Baloyi, ‘that pending such
a decision, the documents be deposited with the registrar.’ Mr Baloyi told the second respondent that he would discuss the
matter with Mr Downer.
[22]
The next morning the second respondent received a copy of Mr du Plooy’s affidavit from Mr Baloyi, who told him that his request
could not be acceded to. That afternoon the second respondent sent a telefax to Mr Steynberg in which he stated his view:
(1)
that ‘a certain privilege attaches to the entire body of documents seized’ from his
offices; and
(2)
that in terms of the Act the ‘documents ought to be lodged with the Registrar in these circumstances’.
[23]
Mr Steynberg replied as follows on 22 August 2005:
‘The search and seizure operation conducted at your offices on 18 August and our subsequent telephone conversations refer.
I am informed by the DSO [Directorate of Special Operations] members who conducted the search that you pointed out to them the documents
described in the search warrant, namely the financial documents relating to Mr Zuma that were forwarded to you by his former financial
manager, Mr Schabir Shaik, via his attorney Mr Reeves Parsee. No other documents were read or seized by the DSO members, nor were
your offices physically searched.
I am informed further that at no stage did you or any of your staff indicate to the members present that the documents seized were,
or might be, privileged.
In the abovementioned circumstances, we are of the view that such documents constitute evidentiary material that is highly relevant
to the current investigation and that no legal privilege attaches to such documents.
We are therefore of the view that there is no reason in law why these documents should be handed to the registrar for safekeeping
and accordingly we decline to do so.’
DECISION OF COURT A QUO
[24]
Hurt J’s decision in favour of the respondents was based on three separate grounds. The first ground was that the appellants
had not shown, as s 29(5)(c) required, that there was a need for a search and seizure in terms of the section. This was because the
material put before Ngoepe JP did not contain a persuasive explanation of the necessity to invoke the provisions of the section.
[25]
He expressed the view that it was ‘open to considerable doubt’ whether the additional evidence sought was needed by the
authorities for the purposes of their investigation. In any event, he held, even if the evidence was necessary, it had not been established
that it could not be obtained by invoking the provisions of s 28.
[26]
The second ground on which Hurt J’s judgment was based was that the warrants were unduly vague in two
respects.
[27]
The first was that they did not describe the suspected offences under investigation with sufficient particularity. He referred in
this regard to the dictum of this court in Powell NO v Van der Merwe NO 2005 (5) SA 62 (SCA) in para 59 (d) and (e) that ‘a warrant must convey intelligibly to both searcher and searched the ambit
of the search it authorises’ and that ‘(i)t is no cure for an overbroad warrant to say that the subject of the search
knew or ought to have known what was being looked for: the warrant must itself specify its object, and must do so intelligibly and
narrowly within the bounds of the empowering statute.’
He continued (at 487b-f):
‘I consider that the precept in Powell’s case, requiring the warrant to convey the ambit of the search “intelligibly”, includes a requirement that the person to
be searched must be given information as to approximately when the suspected offences have been committed and who is suspected of
having committed them. It should be noted, as I have indicated earlier, that the warrants in this case are in the form of a notification
by the authorising, judicial officer that it “appears to (him/her) from information on oath” that the reasonable suspicion
exists. The information on oath which was submitted to obtain authorisation for these warrants was that the suspected corruption
arose from conduct, up to 2002, between the first applicant and Mr Shaik, that the suspected money laundering occurred over a similar
period and that the fraud and tax offences related to non-disclosure in declarations required by statute. There was also, of course,
the vague suggestion of a suspicion that corrupt activities may have continued beyond 2002. Without including those limits in the
warrants, it would be impossible for the person on the receiving end of their execution to know what the searchers might reasonably
be entitled to look for. I accordingly hold the view that the references to the suspected offences in the warrants are inappropriately
vague and that the warrants are all invalid on that ground.’
[28]
The second respect in which it was held that the warrants were unduly vague was based on the ‘catch-all paragraph’, which,
in effect, so he held, constituted ‘authority to search an accused person’s premises “to find anything that [would]
help [the appellants] in the prosecution”.’ He held further that the ‘catch-all paragraph’ in each of the
warrants was not severable from the rest of the warrants because the authorities relied on in support of the severance argument (Cine Films (Pty) Ltd v Commissioner of Police 1972 (2) SA 254 (A) at 268 and Divisional Commissioner of SA Police, Witwatersrand Area, v SA Associated Newspapers Ltd 1966 (2) SA 503 (A) at 513 A-B) predated the Constitution and constitutional considerations now prevent the warrants in this case
being pruned down to acceptable limits ex post facto.
[29]
The third ground on which the judgment was based involved a finding that the second appellant should have been aware that attorney-client
privilege might be jeopardised in the course of the search of the second respondent’s offices, which could have resulted not
only in prejudice to the respondents but also in a violation of the first respondent’s fair trial rights. This could have been
prevented either by referring in the warrant to the provisions of s 29(11) or by bringing these provisions to the attention of the
second respondent when the warrant was served on him.
[30]
In the course of his judgment Hurt J also considered and rejected a submission advanced before him by counsel for the respondents,
which was repeated in argument in this court, to the effect that the powers conferred by s 29 can only be used against a person suspected
of having committed a crime or crimes before he or she becomes an accused.
[31]
Hurt J assumed in his judgment that the formal steps required to be followed by the appellants to obtain and thereafter execute the
warrants complied with the statutory requirements. He accordingly made no finding on a number of issues raised in this regard on
the papers by the respondents.
[32]
In this court counsel for the respondents once again raised the contentions which Hurt J had assumed, without deciding, were not correct.
DISCUSSION:
THE VALIDITY OF THE WARRANTS
[33]
As appears from the summary of Hurt J’s judgment I have given, his finding that the warrants under consideration in this case
were invalid because they were, as he put it, ‘inappropriately vague’ was based upon the application of the summary of
the law on the point appearing in para 59(d) of the judgment of this court in Powell NO v Van der Merwe NO, supra. In this regard Hurt J found that the failure to include in the warrants the information relating to the nature of the investigation
for the purpose of which the warrants were sought resulted in their not conveying to the persons on the receiving end of the warrants
the ambit of the searches authorised by the warrants. That the warrants read on their own, without reference to Mr du Plooy’s
founding affidavit, were so defective cannot be gainsaid. It is clear from the operative part of the warrants that the power to examine
and thereafter seize objects conferred was confined to things which had or might have a bearing ‘on the investigation in question’
but the terms of the investigation were stated in such general terms that it was not possible to ascertain what it covered.
[34]
Mr Trengove, who appeared with Mr Salmon and Mr Breitenbach for the appellants, endeavoured to meet this point by submitting that para 59(d) of this court’s judgment in Powell does not require that the warrant be intelligible ‘then and there’, as it was put, ie, at the time of the search, and
that it is enough that the ambit of the search should be intelligible when and if challenged in court after the person whose premises
have been searched has had sight of the founding affidavit on the strength of which the warrant was issued. He pointed out that although
para 59 in Powell purports to be a summary of the legal position as set out in the cases discussed in this part of the judgment the requirement of intelligibility
to the searched did not feature at all in that discussion and that, as he put it, its pedigree was not clear. He did not, however,
submit that this requirement in the judgment was incorrect but merely that it had to be qualified in the way I have indicated. He
stated that he was unable to point to any authority in our law either for or against his submission in this regard and Mr Kemp, who appeared with Mr Smithers on behalf of the respondents, and argued for the contrary proposition, indicated that he was also unable to refer to authority on
the point.
[35]
In my view Mr Trengrove’s attempt to introduce this qualification into what was said on the point in Powell cannot succeed. The suggested qualification is not only against the trend of the South African authorities to which I shall refer
presently as well as that of decisions in Australia and New Zealand but there are also compelling reasons why that should be so,
as I shall endeavour to indicate.
[36]
I begin with the South African authorities to which reference was made in Powell. In Pullen NO v Waja 1929 TPD 838 at 849 Tindall J in a passage quoted in Powell at para 54 said:
It is desirable that the person whose premises are being invaded should know the reason why: the arguments in favour of the desirability of such a practice are obvious.’
[37]
In Minister of Justice v Desai NO 1948 (3) SA 395 (A) the same judge, by this time Tindall ACJ, said (at 405), when discussing the desirability of including a recital
in a warrant:
‘a recital is a helpful part of a search warrant if it is properly drafted, for it apprises the occupier whose premises are searched
of the reason for the encroachment on his rights and thus may tend to allay resentment and prevent obstruction of the police.’
.RTF of original document