CCT146/22 
[2023] ZACC 38

Judgement Date: 28 November 2023

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Tuesday, 28 November 2023 at 09h00, the Constitutional Court handed down judgment in an application for leave to appeal against the decision of the High Court of South Africa, KwaZulu-Natal Division, Pietermaritzburg (Pietermaritzburg High Court) in an interlocutory application where the Court found that the applicants failed to establish a special case in terms of section 32 of the Superior Courts Act 10 of 2013.

The applicants in this matter are Mr Gaston Savoi, Intaka Holdings (Pty) Limited and Mr Fernando Praderi. They are currently pursuing an application for a permanent stay of prosecution before the Pietermaritzburg High Court. The applicants are charged with bribery, racketeering, money laundering, fraud and corruption in relation to an alleged criminal enterprise involving the supply of water purification plants and oxygen self-generating units to the provincial health departments in KwaZulu-Natal and the Northern Cape. There are separate High Court prosecutions against them in the KwaZulu-Natal Division and the Northern Cape Division. The basis of the permanent stay application is that 69 documents or categories of documents (contested documents) were seized from the applicants by the state, allegedly in violation of the applicants’ legal professional or litigation privilege. The applicants contend that the extent of this violation of privilege will have the result that prosecuting them would tarnish the administration of justice.

In order to prevent further encroachment on their right to legal professional privilege, the applicants brought an interlocutory application in the Pietermaritzburg High Court in terms of section 32 of the Superior Courts Act, requesting that the Court adopt a mechanism to consider the contested documents in camera (in private). The respondents, the National Prosecuting Authority (NPA) and the South African Police Service (SAPS), opposed the interlocutory application. They dispute that the contested documents are fact privileged.

The majority judgment in the Pietermaritzburg High Court held that, to establish a “special case” in terms of section 32 of the Superior Courts Act, the applicants were required to prove their claim of legal professional privilege, which they failed to do. The majority further held that the descriptions of the documents were insufficient to support a claim of privilege. In contrast, Henriques J, in her minority judgment, held that the privileged status of the documents need not be determined in interlocutory proceedings.

The Pietermaritzburg High Court also upheld two in limine complaints raised by the respondents. It held that an order made by Nkosi AJ (Nkosi AJ order), also in the Pietermaritzburg High Court, which prevents SAPS and the NPA from accessing certain documents (some of which are among the contested documents) pending the criminal court’s determination of the status of the documents’ had the effect of precluding any court other than the criminal court from making a decision in respect of the documents listed in that order. The Pietermaritzburg High Court also held that it had no jurisdiction over the Northern Cape prosecutions.

The applicants sought leave to appeal from the Full Court and the Supreme Court of Appeal. Both courts refused the application for leave to appeal. A reconsideration application in the Supreme Court of Appeal was also refused. The applicants then sought leave to appeal to the Constitutional Court. The parties were directed to make submissions on the following questions: (i) whether a party seeking a deviation from the open justice principle on the basis that documents required for the determination of a case are subject to legal professional privilege must first establish such privilege; (ii) whether an in camera hearing entails permanent secrecy of the proceedings; (iii) the implications, if any, of Nkosi AJ’s order on another court’s ability to make a decision relating to the documents that are the subject of that order; and (iv) the jurisdiction of the KwaZulu-Natal Division in respect of the Northern Cape cases.

In this Court, the applicants submitted that resolving the privilege question at the interlocutory stage prejudges an issue that is central to the permanent stay application and that a premature determination of this kind amounts to judicial overreach. The respondents submitted that the applicants were required to establish the documents’ privileged status and that the list of supposedly privileged documents that the applicants presented to the Pietermaritzburg High Court provided insufficient information to support such a claim.

The applicants contended that the Nkosi AJ order did not preclude a court from fashioning a confidentiality regime by which the alleged privileged status of the contested documents could be determined for purposes of the permanent stay application. In addition, the applicants submitted that the Nkosi AJ order binds SAPS and the NPA, but the state’s legal representatives in the permanent stay application are not bound by that order. The respondents contended that the privilege question in the criminal and permanent stay proceedings are not distinct and that the applicants have other remedies available to them.

Regarding the jurisdiction of the KwaZulu-Natal Division over the Northern Cape prosecutions, the applicants argued that this issue did not arise in the interlocutory proceedings and it ought not to have been decided by the Pietermaritzburg High Court. Instead, they say it is relevant that, in 2015, the state and the applicants entered into an agreement in terms of which the permanent stay application would be determined before the criminal trials proceed and that the permanent stay application, which would deal with the KwaZulu-Natal and Northern Cape prosecutions, would be brought in the KwaZulu-Natal Division.

In a unanimous judgment penned by Theron J (Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ and Rogers J concurring), the Court found that its constitutional jurisdiction was engaged. The matter involved the balancing of the right to legal professional privilege and the principle of open justice, both of which are constitutional principles derived from the Bill of Rights. The applicants had reasonable prospects of success and thus it was in the interests of justice for leave to appeal to be granted.

On the merits, the Court considered that the narrow question for determination was what the appropriate judicial procedure is for considering documents that are allegedly protected from disclosure by legal professional privilege, but necessary for the determination of an application for a permanent stay of proceedings, and whether a deviation from the open justice principle is justified. This does not require an assessment of whether the documents are in fact privileged or whether a violation of legal professional privilege is sufficient to ground an application for a permanent stay of prosecution – these are questions for the court that determines the permanent stay application.

The Court highlighted that an appropriate balance must be struck between privilege and open justice and that an in camera consideration of the documents alleged to be privileged strikes that balance. However, the Court stated that as an in camera review is a deviation from general principles in the administration of justice, it is a discretion that must be exercised judiciously and the power should only be invoked when it is in the interests of justice to do so. The applicants required the documents to be considered by a court because the alleged privileged nature of the documents grounds their application for a permanent stay of prosecution. But for an in camera review, they were forced to choose between dealing with the allegedly privileged documents in open court, where the contents will be disclosed to the respondents and the public, or weakening their case for a permanent stay by arguing that legal professional privilege has been breached without giving the court sight of any of the privileged documents.

The Court held that an in camera review of allegedly privileged documents does not entail permanent secrecy. If a court determines that the documents are not protected by privilege, the documents should enter the public sphere. In the case of an in camera hearing, the court should ensure that a record of the proceedings is kept, and if it is subsequently determined that the documents are not protected, that record should be made available to the parties and the public.

In respect of the state’s in limine complaints, the Court held that these are matters for the court determining the permanent stay application to consider, and it was not necessary for the Pietermaritzburg High Court to have done so.

The Court upheld the appeal with costs and replaced the order of the Pietermaritzburg High Court with one which granted the applicants’ interlocutory application in terms of section 32 of the Superior Courts Act. It also specified the procedure to be followed in considering the contested documents in casu, which required that the portion of the proceedings that relate to determining the status of the contested documents be held in camera.

The Full judgment  here