Thint (Pty) Ltd v National Director of Public Prosecutions and Others; Zuma and Another v National Director of Public Prosecutions and Others (CCT 89/07; CCT 91/07) [2008] ZACC 13; 2008 (2) SACR 421 (CC); (31 July 2008)

[2008] ZACC 13

Case CCT 89/07

THINT (PTY) LTD Applicant

versus

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS First Respondent

INVESTIGATING DIRECTOR: DIRECTORATE OF

SPECIAL OPERATIONS Second Respondent

JOHAN DU PLOOY Third Respondent

Case CCT 91/07

JACOB GEDLEYIHLEKISA ZUMA First Applicant

MICHAEL HULLEY Second Applicant

versus

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS First Respondent

INVESTIGATING DIRECTOR: DIRECTORATE OF

SPECIAL OPERATIONS Second Respondent

DIRECTOR OF PUBLIC PROSECUTIONS

(DURBAN AND COAST LOCAL DIVISION) Third Respondent

Heard on : 11-13 March 2008

Decided on : 31 July 2008

JUDGMENT

LANGA CJ:

Introduction

This case concerns various search and seizure warrants issued purportedly in terms of section 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 organised crime.
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 8 November 2007.^² In both judgments, that Court held by a majority 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.
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 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 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

After judgment was reserved in these cases on 13 March 2008, 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 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 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.

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 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 a criticism of the procedure followed by the Court in laying the complaint against the High Court Judge.

It is necessary therefore to address the question whether the alleged improper approaches have had any effect on the content of the judgments 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 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 any of the parties in these cases have 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 and in terms of the Constitution and the law, without any fear, favour or prejudice.

Application for condonation
The state filed its opposing affidavits to both applications for leave to appeal two days late. It has applied for condonation, stating that it had proved impossible to answer the applications within the ten 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 condonation given the overwhelming public importance of the case, the lack of prejudice to the applicants, and the relatively short delay.

Disputes of fact
Before traversing the factual background, it is necessary to resolve a preliminary issue. Various disputes of fact appear in the record. It is trite that factual disagreements in motion proceedings are to be dealt with in 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 distinction between disputes of fact relating to the authorisation of search warrants in terms of section 29 of the Act and disputes of fact relating to the subsequent execution of those warrants.^⁷
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 section 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, 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.
The latter disagreements are different because they are factual 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 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
On 6 November 2000 the Investigating Director instituted a “preparatory investigation” in terms of section 28(13) of the Act,^⁹ which was aimed at determining whether there were reasonable grounds to conduct an investigation, in terms of section 28(1)(a), into allegations of corruption and fraud in connection with government contracts for the supply of armaments. By 24 August 2001 the Investigating Director had decided to launch an investigation contemplated by section 28(1), and Mr Du Plooy was designated to conduct it in terms of section 28(2)(a). In terms of section 28(2)(b), a person thus designated exercises all the powers of the Investigating Director under sections 28 and 29. In October 2002 the 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 and his companies, but the charges against it were withdrawn on 11 October 2004, before the trial commenced, for reasons that are not germane to the present matter. The convictions and sentences of Mr Shaik and his companies were largely upheld by the Supreme Court of Appeal^¹¹ and by this Court.^¹²
On 20 June 2005 the NDPP decided to prosecute Mr Zuma for corruption related to the offences committed by Mr Shaik and his companies. Mr Zuma appeared in the Durban Magistrates’ Court on 29 June 2005, but the matter was postponed for further investigation. On 8 August 2005 Mr Du Plooy extended the scope of the section 28 investigation to include fraud and tax offences allegedly committed by Mr Zuma.^¹³
On 11 August 2005 Mr Du Plooy prepared an affidavit in support of an application for 21 search and seizure warrants to be issued in terms of subsections 29(5) and (6) of the Act.^¹⁴ The purpose of the proposed search and seizure operations was to obtain evidence in relation to the investigation of the crimes of which Mr Zuma, Thint, and another company, Thint Holding (Southern Africa) (Pty) Ltd, were suspected. In his affidavit, Mr Du Plooy emphasised the need for surprise in order to reduce the risk of the removal or destruction of any evidence on the relevant premises. On 12 August an application was made in chambers to Ngoepe JP of the Pretoria High Court in terms of section 29(4). On the same day the Judge President issued the majority of the warrants sought in Mr Du Plooy’s affidavit, but only after their wording had been modified in order to specify the offences which were the subject of the investigation. The remaining warrants were issued on 15, 18 and 26 August 2005 respectively.
On 16 August 2005 the Acting Investigating Director, Mr Mngwengwe, executed a written authorisation naming the various officials who were to conduct the search and seizure operations. On the morning of 18 August, most of the warrants were executed simultaneously at various premises throughout the country. Approximately 250 members of the Directorate of Special Operations participated in the operation. They seized approximately 93 000 documents as well as computer equipment. Soon thereafter, during November 2005, Mr Zuma and the Thint companies were indicted to stand trial on 31 July 2006 in the Pietermaritzburg High Court.

The warrants
The two applications now before this Court concern only six of the warrants. These were executed at:

(a) Thint’s office in Pretoria;

(b) Mr Zuma’s flat in Killarney, Johannesburg, which was occupied by two of his sons, his daughter and the wife of one of his sons when the warrant was executed;

(c) Mr Zuma’s residence at the Nkandla Traditional Village in Nkandla, KwaZulu-Natal;

(d) Mr Zuma’s former offices at the Union Buildings, Pretoria;

(e) Mr Zuma’s former offices at the Department of Economic Development and Tourism, Durban;^¹⁵ and

(f) Mr Hulley’s offices in Durban.
These six warrants were in identical terms, except for the particulars relating to the premises to be searched. They read as follows:

“SEARCH WARRANT

(Section 29(5) of the National Prosecuting Authority Act, No. 32 of 1998)

TO: The Investigating Director: Directorate of Special Operations or any person authorised by him/her in writing

WHEREAS it appears to me from information on oath setting out the nature of the investigation, that there exists a reasonable suspicion that an offence/offences has/have been or is/are being committed, to wit, Corruption in contravention of Act 94 of 1992, Fraud, Money Laundering in contravention of Act 121 of 1998 and/or the commission of tax offences in contravention of Act 58 of 1962, or that an attempt was or had been made to commit such an offence/offences, and the need, in regard to the investigation, being an investigation into allegations of corruption, fraud, money laundering and/or the commission of tax offences for a search and seizure in terms of the above-mentioned section, of any object as per Annexure A, which has a bearing, or might have a bearing, on the investigation in question.

AND WHEREAS it appears to me from the said information on oath that there are reasonable grounds for believing that an object(s) having a bearing or which might have a bearing on, or is/are connected with the investigation, is (are) on or in the premises or suspected to be on or in the premises of

. . . .

YOU ARE HEREBY AUTHORISED to enter the said premises during the daytime and there to inspect and search and make such enquiries that you may deem necessary, examine any object found on or in the premises which has a bearing or might have a bearing on the investigation in question and, against the issue of a receipt, to seize anything on or in the premises which has a bearing or might have a bearing on the investigation, or if you wish, to retain it for further investigation or for safe custody, (including inspecting, searching and seizing computer-related objects in the manner authorized in Annexure B) and to remain on the said premises and to complete the abovementioned inspection, search, enquiries, examination and seizure during the nighttime if necessary.”

Annexure A, which was referred to in the first paragraph of the preamble, was also phrased in identical terms in all four warrants executed at premises connected to Mr Zuma,^¹⁶ and consisted of 23 numbered paragraphs as follows:

“1. Any notes, minutes of meetings, diary entries, records of telephone conversations and any other correspondence, e mails, faxes, computer entries or documentation which have or might have a bearing on or are connected with any gift, payment, loan, or other benefit, direct or indirect, monetary or otherwise, which Schabir Shaik or any of the Nkobi entities, or Thétard, or any other person or entity within the Thomson-CSF/Thales/THINT group, directly or indirectly gave, intended to give or agreed to give to Zuma or his family, and any receipt of, or agreement to receive such by Zuma.

2. Any notes, minutes of meetings, diary entries, records of telephone conversations and any other correspondence, e mails, faxes, computer entries or documentation which have or might have a bearing on or are connected with any assistance of whatever nature that Zuma directly or indirectly gave, intended to give or agreed to give to Schabir Shaik or any of the Nkobi entities, or Thétard, or any other person or entity within the Thomson-CSF/Thales/THINT group, including any references to the following:

• The Renong group of Malaysia, including Tan Sri Halim Saad and David Wilson

• The Point Development

• The Eco-Tourism School, including Deva Ponnoosami and Prof John Lennon

• Minister Steve Tshwete and Grant Scriven of the Venson group

• Ronald Coopersmith

• Fouad Alghanim

• The Kosi Bay Development and Jeffrey Crane of Crane Africa

• United Bank PLC and Belo Osagie

3. Any notes, minutes of meetings, diary entries, records of telephone conversations and any other correspondence, e mails, faxes, computer entries or documentation which have or might have a bearing on or are connected with Shaik's appointment as Zuma's financial adviser, economic adviser or special economic adviser.

4. Notes, minutes of meetings, diary entries, records of telephone conversations and any other correspondence, e mails, faxes, computer entries or documentation which Zuma and his secretaries, assistants or colleagues would have compiled, which have a bearing or might have a bearing on Shaik's role with Zuma regarding visits to Malaysia and the Malaysian government, including any business generated in favour of Shaik and the Nkobi group as a result of such visits.

5. Zuma's diaries for the period 1995 to date, and any electronic diaries, notes, or other correspondence, e mails, faxes, computer entries or documentation which Zuma and his secretaries, assistants or colleagues would have compiled and which indicate his movements, meetings and engagements, including travel plans, flight records and credit card records.

6. Notes, minutes of meetings, diary entries, records of telephone conversations and any other correspondence, e mails, faxes, computer entries or documentation which Zuma and his secretaries, assistants or colleagues would have compiled, which have a bearing or might have a bearing on meetings, correspondence or other contacts with Shaik, Thétard, Perrier, de Jomaron or any other person connected with the Nkobi or Thomson/Thales entities, including the entity African Defence Systems (Pty) Ltd.

7. Notes, minutes of meetings, diary entries, records of telephone conversations and any other correspondence, e mails, faxes, computer entries or documentation which Zuma and his secretaries, assistants or colleagues would have compiled, which have a bearing or might have a bearing on the partnership with or acquisition of, or intended partnership or acquisition of the entity African or Altech Defence Systems (Pty) Ltd (ADS), including contacts, meetings or correspondence with or regarding Peter Watt of Altron or Craig or Bill Venter of Altech.

8. Notes, minutes of meetings, diary entries, records of telephone conversations and any other correspondence, e mails, faxes, computer entries, financial records or documentation which Zuma and his secretaries, assistants or colleagues would have compiled, which have a bearing or might have a bearing on Zuma's financial position, including Zuma's financial obligations to third parties, including banks and other financial institutions, arrangements concerning such obligations, payments from third parties to Zuma, and arrangements concerning such payments, including payments from and arrangements concerning Jurgen Kogl and his entity Cay Nominees, Nora Fakude-Nkuna and her entity Bohlabela Wheels and Vivian Reddy, Edison Health and/or Development Africa Trust.

9. Notes, minutes of meetings, diary entries, records of telephone conversations and any other correspondence, e mails, faxes, computer entries or documentation relating to any allegations of corruption in respect of the arms acquisition process and which have a bearing or might have a bearing on the investigation.

10. Notes, minutes of meetings, diary entries, records of telephone conversations and any other correspondence, e mails, faxes, computer entries or documentation which Zuma and his secretaries, assistants or colleagues would have compiled in reaction to reports regarding the contents of the encrypted fax.

11. Notes, minutes of meetings, diary entries, records of telephone conversations and any other correspondence, e mails, faxes, computer entries or documentation which Zuma and his secretaries, assistants or colleagues would have compiled in reaction to the prosecution and trial of Shaik and his related companies.

12. In general, any notes, minutes of meetings, diary entries, records of telephone conversations and any other correspondence, e mails, faxes, computer entries or documentation which Zuma and his secretaries, assistants or colleagues would have compiled in relation to the request to pay the bribe of R500 000, any actual payment of the bribe, or the objectives requested of Thomson-CSF in return for the bribe, namely

• Protection of Thomson-CSF during the current investigations in respect of project SITRON (the corvette programme), including the letter signed by Zuma as leader of government business dated 19 January 2001 and addressed to Gavin Woods, and including Zuma's reaction to the ongoing investigation concerning the arms acquisition process, Shaik and the Nkobi group and the Thomson/Thales group.

• Continued support of Zuma for future Thomson projects.

13. Any 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, computer entries or documentation in connection with arrangements relating to ADS dividends.

14. Any notes, minutes of meetings, diary entries, records of telephone conversations and any other correspondence, e mails, faxes, computer entries, financial records/plans or documentation which Zuma and his secretaries, assistants or colleagues would have compiled in relation to the Nkandla building project, including its planning and financing.

15. Any notes, minutes of meetings, diary entries, records of telephone conversations and any other correspondence, e mails, faxes, computer entries, financial records plans or documentation which Zuma and his secretaries, assistants or colleagues would have compiled in relation to the Jacob Zuma Education Trust Fund, specifically regarding funding sought from third parties.

16. Any notes, minutes of meetings, diary entries, records of telephone conversations and any other correspondence, e mails, faxes, computer entries, financial records/plans or documentation which Zuma and his secretaries, assistants or colleagues would have compiled in relation to the Development Africa Trust, including any amounts that Zuma owed Development Africa and payments to/from Development Africa and/or Vivian Reddy.

17. Any 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, computer entries or documentation in connection with arrangements relating to any Nkobi or Thomson/Thales entity and the arms acquisition process.

18. Any records of whatever nature relating to any foreign bank accounts held by Zuma, Shaik or any of the Nkobi or Thomson/Thales entities which have a bearing or might have a bearing on the investigation.

19. Any records of whatever nature relating to any interests held by Zuma or Shaik in any entity (company, close corporation or trust) which has a bearing or might have a bearing on the investigation.

20. Any 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, computer entries or documentation in connection with Zuma's association with Shaik or any of the Nkobi or Thomson/Thales entities.

21. Any 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, computer entries or documentation in connection with payments made on behalf of Zuma's family members (children and wives) by any of the abovementioned Nkobi entities or Shaik.

22. Any records of whatever nature relating to Zuma's tax returns to the South African Revenue Service which have a bearing or might have a bearing on the investigation.

23. In general any records 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.”

Annexure A to the warrant executed at the offices of Thint consisted of 22 paragraphs that followed very closely, with the necessary changes, the wording of paragraphs 1 to 21 and 23 as set out above. Annexure A to the warrant executed at Mr Hulley’s offices contained only two numbered paragraphs. The second was phrased identically to paragraph 23 above, while the first read:

“1. 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 advisor to Jacob Zuma.”

Annexure B, which was referred to in the authorising paragraph, was also phrased identically for all six warrants 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.”

The search at the offices of Thint

Investigators seized various items from Thint’s offices, including documents and computers. Ms Govender, who had been employed since 2003 as the personal assistant of Mr Moynot, a director of Thint, was present during the search. She said in her affidavit before the High Court that she was aware that certain correspondence between Thint and its lawyers was confidential and privileged and that she had been told by Mr Moynot which documents stored on her computer were in this class. She claimed privilege in respect of certain documents in a filing room, calling in the assistance of Thint’s attorney. After some negotiations with the investigators who executed the search, those documents were by agreement dealt with in terms of section 29(11) of the Act.^¹⁷
There was a dispute of fact about whether Ms Govender claimed privilege in respect of information stored on her computer. The investigators who were present deny that she did. As this dispute concerns the execution of the search warrant, I shall accept the investigators’ version as correct, in accordance with the approach to factual disagreements set out above.^¹⁸
On the day after the search, Thint’s attorney wrote to the Investigating Director, recording that Thint did not consent to the seizure of documents or information that “might be protected by attorney/client privilege”. The letter requested an undertaking that copies of such information would not be made “should they appear anywhere on the mirror images [of the seized computer hard drives] that might be made”. He also requested the return of all copies that might already have been made.
It is important to note that, since the execution of the search, Thint has had ready access to everything on the hard drive of Ms Govender’s computer. That is because, first, the investigators conducting the search made a mirror image of her computer’s hard drive and left the original in Thint’s offices. Secondly, on 7 March 2006, Advocate George Baloyi (Mr Baloyi), a Deputy Director of Public Prosecutions in Pretoria, made available to Thint’s attorneys CDs and/or DVDs containing copies of all deleted items that were recovered from that mirror image by forensic experts. Despite such access, to date Thint has not claimed privilege in respect of any particular document or item that was seized.

The search at Mr Hulley’s office
The background to the formulation of the warrant executed at Mr Hulley’s office is as follows.^¹⁹ On 19 July 2005, about six weeks after Mr Shaik’s conviction of corruption and fraud in the Durban High Court, his attorney, Mr Reeves Parsee (Mr Parsee), sent a letter to the prosecutors informing them that Mr Shaik had resigned as Mr Zuma’s financial advisor and that he had accordingly forwarded all Mr Zuma’s documentation to his new attorney, Mr Hulley. The letter did not say whether the documentation was in hard copy or in electronic format or both and did not specify by what means or when it had been forwarded to Mr Hulley. The prosecutors therefore did not know whether it still existed in a separate parcel or whether it had been integrated into other documents at Mr Hulley’s office.
The prosecution states that the purpose of the search was confined to seizing these documents. Advocate Anton Steynberg (Mr Steynberg), a Deputy Director of Public Prosecutions at the KwaZulu-Natal regional office of the Directorate of Special Operations, stated on oath that Mr Johannes van Loggerenberg (Mr Van Loggerenberg), the leader of the team assigned to the search of Mr Hulley’s offices, was instructed that—

“if the documentation could be readily identified as being from Reeves Parsee, he should seize only that documentation. He was instructed not to search the premises unless it was strictly necessary to locate this documentation.”

I now turn to record what happened when the warrant was executed at Mr Hulley’s offices. Although there were further disputes of fact concerning this, I shall rely only on the version of the prosecution, in accordance with the approach to factual disagreements set out above.^²⁰
Mr Van Loggerenberg and his team of seven searchers arrived at the office before Mr Hulley did. One of the members of the team was Advocate Willie Muller, a senior state advocate of the office of the National Prosecuting Authority, whose specific role was to deal with matters relating to privilege during the operation, should any claim to privilege be made. When Mr Hulley arrived at 07h35, he was given a copy of the warrant which he read. Mr Hulley then informed Mr Van Loggerenberg that he could assist the search team by showing them the documents he had received from Mr Parsee. He took Mr Van Loggerenberg to his filing offices where he pointed out two boxes that were still sealed. There was an inventory attached to the side of each box. Mr Hulley asked whether he could copy the inventories. Mr Van Loggerenberg agreed he could, and Mr Hulley then did so. The boxes were then seized and Mr Hulley was given a receipt for them. Throughout this process, Mr Hulley was entirely co-operative and he did not suggest that any of the documents contained in the boxes was or might be privileged. He then left for the airport. The members of the search team checked the contents of the boxes against their inventories and left at 09h00, having completed their task.
On his way to the airport, Mr Hulley telephoned Mr Steynberg and said that he wanted to challenge the lawfulness of the searches and that for that purpose he needed a copy of the affidavit pursuant to which the warrants had been obtained. After contacting the leader of the prosecution, Advocate William Downer (Mr Downer), Mr Steynberg told Mr Hulley that he could obtain a copy of the affidavit from the registrar of the Pretoria High Court. Mr Hulley asked Mr Steynberg whether all of the documents could be sealed and lodged with the registrar until the lawfulness of the search and seizure had been determined. Mr Steynberg responded that he would check with Mr Downer but that the law did not make provision for the documents to be lodged with the registrar for that purpose. Mr Steynberg then spoke to Mr Downer, who agreed with that approach. When he arrived in Johannesburg, Mr Hulley again spoke with Mr Steynberg who told him what Mr Downer had said and suggested that he contact Mr Downer directly.
Mr Hulley then telephoned Mr Downer and asked him to stop the searches so that he could obtain a copy of the affidavit used in support of the application for the search warrants and have an opportunity to apply for a court order declaring the search of his offices to be unlawful. Mr Downer declined the request. Mr Hulley then asked him what would happen if any of the documents was privileged. Mr Downer replied that Mr Hulley should decide which documents he considered to be privileged. Mr Downer also said that it did not seem to him that any of the documents could be privileged because they had emanated from Mr Parsee who had said that they were documents Mr Shaik had held in his capacity as Mr Zuma’s financial advisor. Mr Downer specifically stated in his affidavit that Mr Hulley made no further request of him and did not claim privilege in respect of any of the documents seized from his offices.
Later that day Mr Hulley spoke with Mr Baloyi, who was asked to furnish him with a copy of the papers filed in support of the application for the search warrants. Mr Hulley explained that he needed time to study those papers in order to decide whether to mount a challenge to the warrants. He asked Mr Baloyi to persuade Mr Downer to agree that the documents taken from his offices be deposited with the registrar pending that decision. He did not claim privilege in respect of any of the documents. Messrs Baloyi and Hulley agreed to meet the following morning, which they did. Mr Baloyi gave Mr Hulley a copy of Mr Du Plooy’s affidavit and told him that his request could not be acceded to.
The next day, on 19 August 2005, Mr Hulley sent a fax to Mr Steynberg stating:

“As per our prior telephonic consultation with your Messrs Downer and Baloyi we confirm that we are of the view that a certain privilege attaches to the entire body of documents seized from our offices.

In the event we are further of the view that in terms of the provisions of the National Prosecuting Authority Act that such documents ought to be lodged with the Registrar of the High Court in these circumstances.”

Mr Steynberg replied by fax as follows on 22 August:

“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.”

Mr Hulley has to date made no attempt to explain further or clarify his claim that “a certain privilege attaches to the entire body of documents”. Moreover, although he has had ample opportunity to find out whether any of the documents taken from his office is indeed privileged, Mr Hulley has at no stage claimed that any specific document or item is in fact privileged.

The statutory framework
Before considering the judgments of the lower courts in these two applications, it will be convenient to set out the statutory framework. The key statutory provisions in this case are to be found in sections 28 and 29 of the Act. The relevant parts of section 28 provide as follows:

“Inquiries by Investigating Director

(1) (a) If the Investigating Director has reason to suspect that a specified

may without a warrant enter upon any premises and perform the acts referred to in subsection (1)—

(i) if the person who is competent to do so consents to such entry, search, seizure and removal; or

(ii) if he or she upon reasonable grounds believes that—

(aa) the required warrant will be issued to him or her in terms of subsection (4) if he or she were to apply for such warrant; and

(bb) the delay caused by the obtaining of any such warrant would defeat the object of the entry, search, seizure and removal.

(b) Any entry and search in terms of paragraph (a) shall be executed by day, unless the execution thereof by night is justifiable and necessary, and the person exercising the powers referred to in the said paragraph shall identify himself or herself at the request of the owner or the person in control of the premises.

(11) If during the execution of a warrant or the conducting of a search in terms of this section, a person claims that any item found on or in the premises concerned contains privileged information and for that reason refuses the inspection or removal of such item, the person executing the warrant or conducting the search shall, if he or she is of the opinion that the item contains information which is relevant to the investigation and that such information is necessary for the investigation, request the registrar of the High Court which has jurisdiction or his or her delegate, to seize and remove that item for safe custody until a court of law has made a ruling on the question whether the information concerned is privileged or not.

(12) Any person who—

(a) obstructs or hinders the Investigating Director or any other person in the performance of his or her functions in terms of this section;

(b) when he or she is asked in terms of subsection (1) for information or an explanation relating to a matter within his or her knowledge, refuses or fails to give that information or explanation or gives information or an explanation which is false or misleading, knowing it to be false or misleading,

shall be guilty of an offence.”

The judgments of the Durban and Pretoria High Courts

On 6 October 2005 Messrs Zuma and Hulley applied to the Durban High Court seeking relief in respect of seven warrants. (The attacks on two of the warrants have since become moot.) On 15 February 2006 Hurt J declared five search warrants invalid and the searches pursuant to them, at Mr Hulley’s office and the four premises connected to Mr Zuma, unlawful. The court ordered the NDPP and other respondents to return to the applicants all items seized under the warrants, together with all copies that had been made, and to pay the costs of the application.^²¹
Hurt J’s decision was based on three separate grounds. First, he held that the prosecution had not shown, as section 29(5)(c) required, that there was a need for search and seizure in terms of the section. The material put before Ngoepe JP did not contain a persuasive explanation for the necessity of such an operation. In Hurt J’s view, it was doubtful whether additional evidence was needed for the purposes of the investigation, but even if further evidence were necessary, it had not been shown why an invocation of the powers of subpoena in terms of section 28 of the Act were insufficient for this purpose.
Second, the warrants were overly vague in two respects. They did not describe the suspected offences with sufficient particularity and so did not “convey intelligibly to . . . [the] searched the ambit of the search [they] authorise[d]” as is required by Powell NO and Others v Van der Merwe NO and Others.^²² Hurt J interpreted this principle to require that the warrants should have specified the suspected offences exactly, as well as when and by whom they were allegedly committed. Furthermore, the warrants were unduly vague because they all contained what the judge called a “catch-all paragraph”,^²³ which, he opined, effectively authorised an unbounded search of the premises in question.
The third ground for Hurt J’s decision was that the Investigating Director should have been aware that attorney-client privilege might have been jeopardised during the course of the search of Mr Hulley’s offices, which could have resulted in a violation of Mr Zuma’s fair trial rights.^²⁴ This should have been prevented by an explicit reference in the warrant to section 29(11) or by bringing that provision to Mr Hulley’s attention when the warrant was served on him.
On 5 January 2006 Thint and Mr Moynot (together with Mrs Moynot) applied to the Pretoria High Court for similar relief, in respect of the warrant executed at Thint’s offices, to that granted by Hurt J. On 4 July 2006 Du Plessis J held that the application for the warrant, its issue, and its subsequent execution were all lawful.^²⁵ The judge found, first, that Mr Du Plooy had complied with his duty to make full disclosure of the material facts in his application for the warrants to Ngoepe JP. Second, the warrants were not invalid for want of an explicit reference to section 29(11) of the Act, as there was no need for such a reference either in principle or on the facts of the case. Third, the affidavit sufficiently established a reasonable need in all the circumstances for a search and seizure warrant. Fourth, the terms of the warrant were not fatally overbroad, because they did not authorise anything more than the Act itself authorised and they conveyed intelligibly to both searcher and searched the ambit of that authority. The catch-all paragraph, moreover, was not fatal because it was qualified by a requirement that anything seized under it had to have at least a possible bearing on the investigation. Finally, the right to privilege in respect of computer documents could not aid Thint, because on the respondents’ version Ms Govender did not claim privilege, but in any event Thint had failed to claim privilege subsequently in respect of any particular item despite being well placed to do so.

The judgments of the Supreme Court of Appeal
Following the decisions of Hurt J and Du Plessis J in the Durban and Pretoria High Courts, the state and Thint respectively appealed to the Supreme Court of Appeal. Argument in respect of the appeals was heard on 28 and 29 August 2007, and two separate judgments were handed down on 8 November 2007. In both, the court held by a three-two majority that the application for, issue, and execution of, all the respective warrants were lawful. The first judgment overturned the order of Hurt J, while the second judgment confirmed the order of Du Plessis J. The reasons in respect of both appeals were provided in the first judgment; the second judgment merely referred to the first.
In both instances the minority judgment was written by Farlam JA, with whom Cloete JA concurred. In essence, the minority held the second ground advanced by Hurt J as alone determinative of the appeals: the warrants read on their own were defective because they did not intelligibly convey to the searched person the ambit of the authorised search and seizure operation, in breach of the principle enunciated in Powell.^²⁶ Although the operative part of the warrants conferred the power to examine and thereafter to seize only items which had or might have a bearing on the investigation in question, the terms of the investigation itself were so general that it was impossible to ascertain what the warrants covered.
In reaching this conclusion, the minority held that the Powell principle of intelligibility meant that the warrant must itself, without reference to any extraneous document, objectively define the ambit of the authorised search at the time it is carried out. It rejected the prosecution’s argument that the scope of a warrant need only be objectively delineable if and when subsequently challenged in court after the searched person has had sight of the affidavit on the strength of which the warrant was issued. It held further that the searched person’s knowledge of the investigation in question was irrelevant to the intelligibility of a search warrant. The purpose of requiring a warrant’s intelligibility to the searched person at the time of execution was, the minority held, to enable him or her to ascertain the items to which a search could lawfully be directed and thereby to enable him or her to take steps immediately to minimise the invasion of his or her rights to privacy and property.
The minority then accepted the prosecution’s alternative submission that the High Court orders should be varied to ensure the preservation of the evidence seized under the warrants. It held that the originals of the seized documents should be returned to the applicants, but that copies be kept under seal by the registrar of the High Court so that a subsequent criminal trial court could ultimately decide whether those copies should nevertheless be admitted as evidence, despite having been unlawfully obtained, in terms of section 35(5) of the Constitution. This, the minority held, was a just and equitable order in terms of sections 38 and 172(1) of the Constitution, because it successfully balanced the competing constitutional imperatives involved.
The majority decision in both appeals was written by Nugent JA, with whom Ponnan and Mlambo JJA concurred. The majority held in contrast that the warrants were not defective and therefore that the seized items need neither be returned to the applicants nor preserved with a High Court registrar.
The majority’s key disagreement with the minority concerned the proper interpretation and application of the principle of intelligibility laid down in Powell. The majority emphasised that the starting point was what the Act required, and not principles enunciated in case law concerning warrants issued in terms of different legislation. Nevertheless, warrants by their nature have to comply with two further criteria of validity: They have to be capable of being understood, and they can authorise no more than is permitted by the authorising statute itself. Powell’s case, the majority held, merely restated these principles and did not, as the minority effectively held, establish a novel principle that all warrants must necessarily contain all the information required to identify what may be searched for without travelling outside the warrant. Powell also did not establish, as a matter of law, that the failure to specify in a warrant the exact offence that is suspected, renders it unduly vague. The warrant declared invalid in that case was distinguishable from the warrants in these appeals; so, in the end, Powell was not directly applicable.
The majority accordingly held that it is not the law that a warrant issued in terms of section 29 of the Act must on its face contain information that enables the searched person to identify exactly what may be seized. All that is required is that the warrant must be capable of objective delineation, and extrinsic evidence may be used to establish its meaning with certainty. The Act does not explicitly require anything further, and it should also be interpreted to require implicitly that no additional information about the investigation be given to searched persons, for at least five reasons. First, it is impossible to circumscribe what information should be given with certainty; second, it would be impossible to place searched persons in a position of total certainty and the law should not be interpreted to require empty gestures in that direction; third, disclosing the full nature of the investigation would undermine its prospects of success; fourth, search and seizure operations are not dependent on the co-operation of searched persons, so the searched persons need not be placed in a position of total certainty; and fifth, it would be nonsensical always to require disclosure of information in a warrant when searches are sometimes permitted without any warrant or any disclosure at all.
The majority applied these principles to the warrants in question and found them to express intelligibly and with sufficient certainty the scope of the authority they conferred: They permitted a search for and seizure of all the species of material referred to in the annexures, all of which were capable of being identified as having, or possibly having, a bearing on the investigation in question. What the investigation entails and whether items seized have or might have a bearing on it were objective facts capable of being ascertained. Moreover, the catch-all paragraphs did not differ materially from the other paragraphs in the annexures.
As far as the “need” for a warrant in terms of section 29(5)(c) was concerned, the majority held that Hurt J set the bar too high by requiring the prosecution to show in every case that the material could not be obtained by invoking the powers of subpoena under section 28. It held that his approach would undermine the success of investigations into serious and complex crime in terms of the Act. On the facts of this case, Mr Du Plooy’s affidavit clearly established a need for search and seizure in terms of section 29.
Finally, as to the question of privilege, the majority held that the fact that the warrants did not expressly refer to section 29(11) did not constitute sufficient reason for their invalidation. Moreover, the execution of the warrants at the offices of Mr Hulley and Thint was not unlawful for any failure in regard to privilege. The applicants failed to show that special precautions to avoid disclosure of privileged information, above and beyond those required by the Act, were called for in the circumstances.

The indictment of Mr Zuma and the Thint companies
During November 2005 Mr Zuma and the Thint companies were indicted to stand trial on 31 July 2006 in the Pietermaritzburg High Court. During June or early July 2006 the prosecution applied for a postponement of that criminal trial. One of the main grounds relied on in the postponement application was that the state intended to appeal against the judgment of Hurt J, which had declared the searches and seizures unlawful. Msimang J refused that application on 20 September 2006, but the prosecution declined to withdraw the charges and the matter was struck from the roll. Subsequently, on 28 December 2007, the National Prosecuting Authority served a fresh indictment on Mr Zuma and the Thint companies alleging the commission of racketeering, corruption, fraud, money laundering and tax offences, and summoning them to appear before the Pietermaritzburg High Court on 4 August 2008. This second indictment was drafted after the state had had the opportunity to consider all the documents seized under the ostensible authority of the warrants now under consideration.

The parties’ submissions
Having set out fully the factual background, the terms of the warrants, the statutory framework, and the relevant litigation history, I am now in a position to consider the grounds of the appeal.
Although Thint advanced argument separately from Mr Zuma and Mr Hulley, I present all of the arguments in a unified form to avoid repetition. The overall scheme of the applicants’ submissions is that the approach of the majority of the Supreme Court of Appeal is flawed; the minority’s approach to the validity of the search warrants is preferable; but the minority erred in making a preservation order; instead, all items seized and copies thereof should immediately be returned to the applicants. The specific reasons advanced for these conclusions are as follows.
The applicants first argue that leave to appeal should be granted. The issue and execution of the warrants implicates the rights to privacy and property in terms of sections 14 and 25 of the Constitution respectively, which provide the normative substratum for interpreting sections 28 and 29 of the Act through the prism of the Constitution. Mr Zuma also submits that his right to dignity in terms of section 10 of the Constitution was infringed and that his fair trial rights in terms of section 35 were threatened. Moreover, it is in the interests of justice to grant leave to appeal, because the constitutional issues are important, the underlying dispute concerning alleged criminal offences by Mr Zuma is of great public importance, and there is a reasonable prospect that this Court will reverse or materially alter the order of the Supreme Court of Appeal.
The applicants then assert that the application to Ngoepe JP for the issue of the warrant in terms of section 29 of the Act was flawed in material respects. First, Thint argues that the prosecution made out no case to Ngoepe JP for dispensing with notice to Thint. A warrant should not be issued ex parte unless the applicant establishes that it would defeat the object of that warrant if notice were to be given to the affected party. Mr Du Plooy did not attempt to make out such a case. Second, the ex parte application was flawed because it failed to disclose various material facts concerning Thint’s past co-operation with the prosecution, Mr Moynot’s substitution for Mr Thétard as a director of the company, and the latter’s relocation to Mauritius. This amounted to a breach of the duty of utmost good faith required of all ex parte applicants. Third, the applicants question whether the application to Ngoepe JP established the need for a search and seizure operation, as is required by section 29(5)(c). They submit that the law requires prosecuting authorities to establish that there is no other reasonable way to gain access to the subject matter of the search, and that the prosecution failed to explain why it could not have obtained the evidence through the less restrictive means of a subpoena under section 28. Fourth, they argue that Mr Du Plooy’s affidavit did not make out a case for such a wide search. The affidavit should have justified the need to seize every class of item specified in annexure A, but in fact failed even to mention some of the classes there specified.
The applicants also argue that the terms of the warrants, considered in the abstract at the time of their issue, were fatally overbroad and vague and therefore were not intelligible to the searched persons, as is required by Powell’s case.^²⁷ In this regard they argue, first, that the majority of the Supreme Court of Appeal was incorrect to hold that the meaning of the warrants could legitimately be ascertained with reference to external sources, such as Mr Du Plooy’s affidavit; instead, the minority was correct to hold that warrants must themselves be intelligible on their own terms and without any outside aid. Second, the warrants were so broadly phrased that they effectively authorised an unlimited search of the various premises. They should have specified the particular offences under suspicion. It follows that the warrants did not convey to the reader what may be searched for and seized. Third, Thint argues that the prosecution merely adopted a “one size fits all” approach to the issue of the various warrants, and thereby failed to tailor them sufficiently to the individual circumstances of the persons connected to the premises searched. Fourth, Messrs Zuma and Hulley argue that the inclusion of paragraphs 9, 10 and 11 in annexure A betrayed the prosecution’s unlawful and illegitimate attempt to gain access to Mr Zuma’s prospective defences in what at the time of the warrants’ issue was merely a probable upcoming criminal trial.
The applicants’ next set of submissions concern what they consider to have been the prosecution’s unlawful disregard for their legal professional privilege. First, they assert that the warrants were all unlawful for want of an explicit reference to the statutory protection for privilege in terms of section 29(11) of the Act. Alternatively, the persons conducting the search and seizure operation should have drawn that provision to the attention of the persons in charge of the relevant premises. This is particularly important where the offices of legal practitioners are searched, as in Mr Hulley’s case. The refusal of the prosecution team to seal and lodge with the registrar the items seized from Mr Hulley’s office after Mr Hulley requested this, and after his subsequent claim by fax that “a certain privilege” attached to all those documents, was unlawful.
Finally, the applicants submit that if either the application for, issue, or execution of, the warrants was unlawful for any of the above reasons, the search and seizure operation as a whole should be set aside, and all the items seized and copies thereof should immediately be returned to them. In this regard, they argue that it would be improper for this Court to make an order for the preservation of these items by a High Court registrar until the upcoming criminal trial of Mr Zuma and the Thint companies. A preservation order, they assert, would amount to a continuing violation of their privacy and property rights that could not be justified. They also submit that it would, in effect, afford the prosecution an advantage as a result of acting unlawfully; an advantage that they would not have secured had they not acted at all. Accordingly, only the return of all items would vindicate their constitutional rights.
The state resists all of these arguments. It starts by asserting that, regardless of the constitutional issues raised and the applicants’ prospects of success, it would not be in the interests of justice to grant leave to appeal. It maintains that it was not necessary to notify the applicants of the application for the search warrants, that Mr Du Plooy’s affidavit disclosed all material facts, and that the application clearly made out the need for the search and seizure operation in terms of section 29. It argues, moreover, that the warrants were neither overbroad nor unduly vague whether considered on their own or in the light of Mr Du Plooy’s affidavit. In this regard, there was compliance with the requirement of intelligibility laid down in Powell. It submits that they complied at all times with their duties to respect the applicants’ legal professional privilege, and in particular that there was no need for the warrants to have included an explicit reference to section 29(11) of the Act. They argue, further, that there was nothing untoward about the manner in which the warrants were executed at Mr Hulley’s and Thint’s offices. Finally, they submit, in the alternative, that should this Court decide for any reason that the search and seizure operations be set aside, it would be appropriate to grant a preservation order.

The legal issues
It appears from the above that at least nine legal issues arise. First, is it in the interests of justice to grant leave to appeal? Second, should the prosecution have notified the applicants of the application for the issue of the warrants? Third, did the prosecution fail to disclose various material facts in that application? Fourth, did Mr Du Plooy’s affidavit establish the need for a search and seizure operation under section 29 of the Act? Fifth, should the affidavit have expressly justified the need to seize every class of items mentioned in annexure A? Sixth, were the warrants overbroad or unduly vague? Seventh, were the warrants themselves unlawful for any other reason, including the inclusion of the catch-all paragraphs, the inclusion of paragraphs 9, 10 and 11 of annexure A, or the lack of an explicit reference to section 29(11) of the Act? Eighth, were the warrants executed in a way that provided insufficient protection for the applicants’ legal professional privilege? And finally, if the search and seizure operations were unlawful for any reason, should this Court grant a preservation order or should the seized items be returned to the applicants?
I turn now to deal with the first of these questions.

Leave to appeal and the interests of justice
The prosecution argues that, regardless of whether the applicants’ arguments bear reasonable prospects of success, it is not in the interests of justice to grant leave to appeal. It bases this submission on several grounds. First, this case concerns “justice in theory” not “justice in fact”, because the applicants have made no attempt to establish that they have suffered any actual prejudice despite having had ample opportunity to do so. Second, the applicants launched these proceedings for one purpose only, namely, to prevent the state from using the seized items as evidence against Mr Zuma and the Thint companies in a subsequent criminal trial. They thereby are trying to circumvent the application of section 35(5) of the Constitution, which is the way the Constitution chooses to balance the various competing interests when deciding whether or not to admit unlawfully obtained evidence. This is particularly invidious, they argue, given that the evidence is incriminating of Mr Zuma and the Thint companies, and for that reason it is of great public importance that the truth emerges. Third, this form of preliminary litigation unduly delays the commencement of criminal trials and therefore should be strongly discouraged. The trial court, rather than preliminary courts, is best placed to balance the varying public and private interests at stake, namely, the public and private interests in the emergence of truth, the applicants’ interests in their privacy and property, and the accused persons’ fair trial rights. Leave to appeal should therefore be refused to allow the trial court to do so in this case.
There is certainly a great deal of merit in these arguments, but I do not agree that it would be in the interests of justice for leave to appeal to be refused in these applications. There are several reasons for my conclusion. The first reason is that, were this Court to refuse leave to appeal, the Supreme Court of Appeal decision that the warrants and searches and seizures were lawful would stand and would in all probability bind any subsequent trial court. It would follow that the seized evidence would have been lawfully obtained and section 35(5) would have no application. The relevant, competing interests would not fall to be balanced at all. It seems to me that the argument that the trial court is best placed to balance those interests is relevant only to the question whether or not a preservation order should be granted. The same is true for the argument that the seized evidence is very important, which merely goes to indicate that, if the items were indeed unlawfully obtained, they should nevertheless be preserved so that the trial court can decide whether or not to admit them anyway.^²⁸
The second reason why it is in the interests of justice to grant leave to appeal is that it would be desirable to settle the law regulating overbreadth and undue vagueness of search warrants issued in terms of the Act. It is in the public interest to clarify the requirement of intelligibility laid down in Powell, and to consider whether it is reconcilable with the approach of the majority of the Supreme Court of Appeal in these applications.
I nevertheless do agree with the prosecution that this Court should discourage preliminary litigation that appears to have no purpose other than to circumvent the application of section 35(5). Allowing such litigation will often place prosecutors between a rock and a hard place. They must, on the one hand, resist preliminary challenges to their investigations and to the institution of proceedings against accused persons; on the other hand, they are simultaneously obliged to ensure the prompt commencement of trials. Generally disallowing such litigation would ensure that the trial court decides the pertinent issues, which it is best placed to do, and would ensure that trials start sooner rather than later. There can be no absolute rule in this regard, however. The courts’ doors should never be completely closed to litigants. If, for instance, a warrant is clearly unlawful, the victim should be able to have it set aside promptly. If the trial is only likely to commence far in the future, the victim should be able to engage in preliminary litigation to enforce his or her fundamental rights. But in the ordinary course of events, and where the purpose of the litigation appears merely to be the avoidance of the application of section 35(5) or the delay of criminal proceedings, all courts should not entertain it. The trial court would then step in and consider together the pertinent interests of all concerned. If that approach is generally followed the state would be sufficiently constrained from acting unlawfully by the application of section 35(5) and by the possibility of civil and criminal liability. The nature and degree of unlawfulness of the search warrant is an important factor to be borne in mind for the purposes of a decision under section 35(5). It is for this reason that the same court should consider the unlawfulness of the warrant and its impact.
The suggestion that section 34 or section 38 of the Constitution might be infringed by courts that adopt the approach commended in the preceding paragraph is not justified. Section 34 of the Constitution^²⁹ requires a dispute that can be resolved by law to be determined by a court that is independent and impartial. The court that hears the criminal trial will be both independent and impartial. Section 38 of the Constitution^³⁰ confers the right on any person who alleges an infringement of or threat to a right in the Bill of Rights to approach a competent court and the court may “grant appropriate relief”. It will be appropriate for a court not to entertain proceedings which are brought in terms of section 38 simply in order to avoid the application of section 35(5) or to achieve a delay in criminal proceedings.
Despite these observations, I do not think that a stop should be put to the litigation in this particular case, for the two reasons advanced above. This approach is bolstered by the fact that constitutional issues have indeed been raised and that it is in the interests of justice that the lawfulness of these warrants be finally determined. I therefore hold that it is in the interests of justice to grant leave to appeal.

The proper approach to the merits
Before considering the eight legal issues that remain, it is necessary first to set out both what I consider to be the proper approach to these matters, and the applicable constitutional principles.
It is important to note that in the two applications now before me, the applicants do not challenge the constitutionality of the relevant statutory provisions.^³¹ This is perhaps unsurprising in view of the fact that this Court, in Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and Others: in re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others,^³² unanimously held that section 29(5) of the Act was not inconsistent with the Constitution. That decision explained the duty of courts, imposed by section 39(2) of the Constitution,^³³ first to interpret legislation, so far as its language will allow, so as to promote the spirit, purport and objects of the Bill of Rights, before determining whether that legislation unjustifiably violates a fundamental right:

“It is necessary [before considering the constitutionality of legislation], to ascertain the proper meaning of the relevant provisions in the Act . . . . The Constitution requires that judicial officers read legislation, where possible, in ways which give effect to its fundamental values. Consistently with this, when the constitutionality of legislation is in issue, they are under a duty to examine the objects and purport of an Act and to read the provisions of the legislation, so far as is possible, in conformity with the Constitution. . . . [J]udicial officers must prefer interpretations of legislation that fall within constitutional bounds over those that do not, provided that such an interpretation can be reasonably ascribed to the section. . . . It follows that where a legislative provision is reasonably capable of a meaning that places it within constitutional bounds, it should be preserved. Only if this is not possible should one resort to [a declaration of unconstitutionality and an appropriate remedy].”^³⁴

The Court then held that, although the provisions of section 29 of the Act clearly constituted a limit to the right to privacy conferred by section 14 of the Constitution,^³⁵ section 29(5) of the Act, properly interpreted to promote constitutional values in accordance with section 39(2), provided sufficient safeguards against an unwarranted invasion of that right. Accordingly, the limitation of the privacy right by section 29(5) was reasonable and justifiable.^³⁶
In this case, given that all the parties accept that sections 28 and 29 of the Act are consistent with the Constitution generally, and with the right to privacy in particular, I am instead called upon to interpret those provisions in order to promote the spirit, purport and objects of the Bill of Rights, that is, “through the prism of the Bill of Rights.”^³⁷
It should be recalled that this approach immediately places limits on the degree to which this Court can read new requirements into the legislation. In National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others,^³⁸ this Court held unanimously:

“There is a clear distinction between interpreting legislation in a way which ‘promote[s] the spirit, purport and objects of the Bill of Rights’ as required by s 39(2) of the Constitution and the process of reading words into or severing them from a statutory provision which is a remedial measure under s 172(1)(b), following upon a declaration of constitutional invalidity under s 172(1)(a). . . . What is now being emphasised is the fundamentally different nature of the two processes. The first process, being an interpretive one, is limited to what the text is reasonably capable of meaning. The latter can only take place after the statutory provision in question, notwithstanding the application of all legitimate interpretative aids, is found to be constitutionally invalid.”^³⁹ (Emphasis added.)

The relevant constitutional principles

Although these cases concern the proper interpretation and application of section 29 of the Act as opposed to its constitutional validity, the constitutional setting remains important because it guides the process of interpretation and application in terms of section 39(2) of the Constitution.^⁴⁰
In Hyundai this Court made the point that section 29 strikes a balance between protecting the privacy interests of individuals on the one hand and not interfering with the state’s constitutionally mandated task of prosecuting crime on the other:

“There is no doubt that search and seizure provisions, in the context of a preparatory investigation, serve an important purpose in the fight against crime. That the state has a pressing interest which involves the security and freedom of the community as a whole is beyond question. It is an objective which is sufficiently important to justify the limitation of the right to privacy of an individual in certain circumstances. The right is not meant to shield criminal activity or to conceal evidence of crime from the criminal justice process. On the other hand, State officials are not entitled without good cause to invade the premises of persons for purposes of searching and seizing property; there would otherwise be little content left to the right to privacy. A balance must therefore be struck between the interests of the individual and that of the State”.^⁴¹ (Footnote omitted.)

Both these interests are important and neither can be sacrificed. The Court went on to describe the importance of the state’s powers under section 29 in the fight against crime:

“It is a notorious fact that the rate of crime in South Africa is unacceptably high. There are frequent reports of violent crime and incessant disclosures of fraudulent activity. This has a seriously adverse affect not only on the security of citizens and the morale of the community but also on the country’s economy. This ultimately affects the government’s ability to address the pressing social welfare problems in South Africa. The need to fight crime is thus an important objective in our society, and the setting up of special investigating directorates should be seen in this light. The Legislature has sought to prioritise the investigation of certain serious offences detrimentally affecting our communities and has set up a specialised structure, the investigating directorate, to deal with them. For purposes of conducting its investigatory functions, the investigating directorates have been granted the powers of search and seizure.”^⁴² (Footnote omitted.)

The privacy of the individual is no less important. Section 14 of the Constitution entrenches everyone’s right to privacy, including the right not to have one’s person, home, or property searched, possessions seized or the privacy of his or her communications infringed.^⁴³ These rights flow from the value placed on human dignity by the Constitution.^⁴⁴ The courts therefore jealously guard them by scrutinising search warrants “with rigour and exactitude”.^⁴⁵
It must be borne in mind, however, that in Thint’s case we are concerned with the search of the offices of a company. As a corporate entity, Thint does not bear human dignity and thus its rights of privacy are much attenuated c

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South Africa: Constitutional Court

Thint (Pty) Ltd v National Director of Public Prosecutions and Others; Zuma and Another v National Director of Public Prosecutions and Others (CCT 89/07; CCT 91/07) [2008] ZACC 13; 2008 (2) SACR 421 (CC); (31 July 2008)