REPUBLIC OF SOUTH AFRICA

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Case number: 302/06
Reportable
In the matter between:

THE MINISTER OF SAFETY AND SECURITY
FIRST APPELLANT
THE COMMANDING OFFICER SERIOUS
ECONOMIC OFFENCES UNIT

SECOND APPELLANT
D H S SMITH

THIRD APPELLANT

and

S H BENNETT

FIRST RESPONDENT
G P PORRITT

SECOND RESPONDENT
SYNERGY MANAGEMENT (PTY) LTD

THIRD RESPONDENT
MAJORSHELF 117 (PTY) LTD

FOURTH RESPONDENT
A DATHOO N.O

FIFTH RESPONDENT
J U E BUYTENDAG N.O

SIXTH RESPONDENT
B M MTBELE N.O

SEVENTH RESPONDENT

CORAM:
FARLAM, NUGENT, CLOETE, PONNAN et
MLAMBO JJA

HEARD:
3 MAY 2007

DELIVERED: 8 NOVEMBER 2007

SUMMARY:
Search and seizure – whether execution of warrants issued in terms
of s 21 of Criminal Procedure Act 51 of 1977 invalid – whether seizure of documents
covered by warrant invalidated by simultaneous seizure at the same time of privileged
documents not covered thereby.

Neutral citation: This judgment may be referred to as Minister of Safety and
Security v Bennett [2007] SCA 139 (RSA).
_______________________________________________________
JUDGMENT
________________________________________________________

FARLAM JA

[1] This is an appeal against a decision by Bertelsmann J, sitting in the
Pretoria High Court, in which, amongst other things, he declared the
execution of certain search warrants to have been performed in an
unconstitutional and unlawful fashion and ordered the return of all documents
removed in terms of the warrants.

[2] The
respondents
in
this
matter,
Susan
Hilary
Bennett,
a
businesswoman of Johannesburg, Gary Patrick Porritt, a businessman of
Johannesburg and two companies at whose premises searches authorized by
the warrants took place, applied to the Pretoria High Court for, amongst other
things, orders (1) setting aside search warrants issued by magistrates in
Pietermaritzburg, Kokstad and Johannesburg, (2) directing the appellants, the
Minister of Safety and Security, the commanding officer of the Serious
Economic Offences Unit of the South African Police Services, and a member
of the unit, who is the investigating officer in a criminal case pending against
the respondents, to return all documents, data and other property seized
pursuant to the warrants and (3) interdicting the appellants from utilizing any
of the documents, other property seized pursuant to the warrants or copies or
reproductions thereof or information derived therefrom.

[3] Bertelsmann J refused to set aside the warrants holding that they were
validly issued. He also refused to interdict the use at the trial of the
respondents of the documents, data or other property or copies or
reproductions or information therefrom, holding in this regard that the trial
court would be in a better position to decide on the admissibility of evidence
derived from the execution of the warrants. The respondents have not cross
appealed against his refusal to set the warrants aside or to interdict evidence
obtained pursuant to the execution thereof.

[4] The learned judge did, however, as I have said, grant an order
declaring the execution of the warrants to have been performed in an
unconstitutional and unlawful fashion as well as directing the appellants to
return to the respondents all documents removed in terms of the warrants. In
addition to ordering the appellants to pay the costs he made a declaration that

the appellants were entitled, at their own expense, to make copies of all
documents they had removed in terms of the warrants, other than privileged
documentation, and ordered that such copies prepared by the appellants had
to be placed in sealed boxes and handed to the Registrar of the
Johannesburg High Court for safekeeping, pending a decision by the trial
court as to the admissibility of individual documents.

[5] The second respondent was arrested on various charges of fraud and
contravening the Income Tax Act in December 2002. The first respondent was
arrested on the same charges in March 2003.

[6] They are to stand trial in the Johannesburg High Court on an
indictment containing over 3 000 counts of fraud and contraventions of
various provisions of the Income Tax Act, the Companies Act, the Stock
Exchanges Control Act, the Exchange Control Regulations and the Prevention
of Organised Crime Act.
[7] On 24 March 2005 members of the South African Police Service,
acting in terms of search warrants issued on 23 and 24 March 2005 under s
21 of the Criminal Procedure Act 51 of 1977, searched premises at 218 Boom
Street, Pietermaritzburg, Hlani Farm, Swartberg, and 32 Delta Road, Elton
Hill, Johannesburg and seized some 400 000 documents. The documents
seized were marked with reference to the identification of the files in which
they were bound and placed in boxes which were sealed.

[8] At the time of the search and seizure at Boom Street, Pietermaritzburg,
an attorney, Mr TP Reed, who acted on behalf of the respondents, was
present and participated in a discussion with the third appellant and Director
Van Graan, another representative of the South African Police Service,
relating to the procedure to be followed with regard to the documents seized.
The marking of the documents and their being placed in sealed boxes took
place in accordance with an agreement concluded then and there between Mr
Reed and the third appellant and Director Van Graan. It was also agreed that
Mr Reed could be present when the seals were removed so that he could
satisfy himself that the documents had not been tampered with.

[9] During the discussion between Mr Reed and Director Van Graan and
the third appellant it was never suggested that privileged documents were
involved.

[10] Subsequent to the seizure of the documents the first and second
respondents brought an application in Pretoria High Court for an order
interdicting the first appellant from opening the sealed boxes containing the
seized documents, pending the outcome of an application for the setting aside
of the warrants. In the founding affidavit in that application it was stated for the
first time that privileged documents had been seized. This allegation was
confined to the documents seized at Delta Road, Elton Hill, Johannesburg.

[11] The application for an interdict was dismissed by Van der Merwe J on
13 May 2005. In his judgment he found that the warrants had been lawfully
issued and executed.

[12] Thereafter the State Attorney, acting on behalf of the appellants, invited
the first and second respondents to engage in a process with an independent
advocate appointed on behalf of the Police Service in order to identify
privileged or possibly privileged documents. In terms of the process the
advocate and the first and second respondents were to be present when the
boxes were opened, privileged documents were to be identified and
immediately handed over to the first and second respondents. No members of
the Police Service were to participate in the process. This process was
agreed to. It extended over the period from 23 May to 2 June 2005. In total 18
000 pages of privileged documents were identified and handed over to the
first and second respondents. On all days except the last either the first or the
second respondent was present with the independent advocate when the
boxes were opened.

[13] On 3 June 2005, the day after the identification process ended, the first
and second respondents (to whom I shall refer in what follows as ‘the
respondents’) brought an application, inter alia, for an order authorising them

to make copies of all documents seized, alternatively to have access to the
process of paginating and inventorising them. In this application they alleged
for the first time that privileged documents had also been seized at Boom
Street and Loop Street, Pietermaritzburg.

[14] On 11 August 2005 the respondents brought the application forming
the subject of the present appeal. As I have said the respondents did not
obtain the relief they had sought in relation to the alleged validity of the
warrants or an exclusion of information obtained thereunder at their trial but
they did obtain an order for the return of all the documents seized, whether or
not they were privileged. (The appellants had tendered return of all privileged
documentation, in so far as it had not already been returned.)

[15] The portion of the judgment dealing with the return of the documents,
even though not covered by privilege, reads as follows:
‘61.
The removal of the privileged documentation was intentional in the sense that the
police were informed, while they were executing the warrants, by applicants’ attorney
that privileged documents were among the vast mound of paper that was removed.
None of the items identified as privileged were inspected by the police. They have
remained sealed.
62.
But the removal of privileged documentation remains a very serious matter. It
infringes the right to legal representation and to attorney-client confidentiality,
regardless of whether the documents were inspected and considered by the State
and the police or not.
63.
The removal of privileged documents was never authorized by the warrants. A
warrant must be strictly interpreted – this is trite: See section 14 of the Constitution
108 of 1996; Powell NO and Others v Van der Merwe NO and Others 2005 (1) SACR
317 (SCA) and the comprehensive discussion of the authorities therein; Cheadle,
Thompson and Haysom and Others v Minister of Law and Order and Others 1986 (2)
SA 279 (W); De Wet and Others v Willers NO and Another 1953 (4) SA 124 (T).
64.
The applicants demand the return of all items seized in the operation that was tainted
by the removal of the privileged documents, as well as a blanket interdict against the
use thereof in all future proceedings, in particular the criminal trial that is about to
start next year. Grave as the infringement of the right to protection of privileged
communications is, I am not convinced that the future proceedings have been
irreparably tainted to the extent that the entire criminal trial with all its thousands of
charges can at this stage already be said to be unfair under any circumstances.

There is no evidence that the privileged papers were ever read by any police officer
or State official. Although the warrants were carried out unlawfully, and although all
documents removed in terms of the warrants must therefore be returned to the
applicants, it is normally the prerogative of the trial court to decide whether any
evidence that would otherwise be admissible but was obtained unconstitutionally,
should nonetheless be admitted in the interests of justice.’

[16] Counsel for the appellants contended that the Court a quo misdirected
itself in a number of respects and that its decision that the warrants had been
executed in an unconstitutional and unlawful fashion was incorrect. In
particular they submitted that the court’s finding that members of the Police
Services intentionally removed privileged documents, which was clearly the
basis of its decision on this part of the case, was not supported by the
evidence before it. It will be recalled that the judge said that ‘the removal of
the privileged material was intentional in the sense that the police were
informed, while they were executing the warrants, by [the respondents’]
attorney that privileged documents were among the vast mound of paper that
was removed.’ (The emphasis is mine.)

[17] It is clear that this statement refers to what Mr Reed, the attorney who
was then acting for the respondents, said to the third appellant and Director
Van Graan when the search warrant relating to the premises in Boom Street,
Pietermaritzburg, was being executed. The respondents’ own version of what
happened then is set out in a letter addressed by the attorneys presently
acting for the respondents to the State Attorney on 17 May 2005, the material
portions of which read as follows:
‘4.1
Attorney Reed saw Superintendent Smith [the third appellant] at the Boom Street
premises shortly after the SAPS had arrived to commence their search and seizure. He saw
that members of the SAPS were putting quantities of files into boxes and told Superintendent
Smith that he required a full index of every document taken. Superintendent Smith said he
would do so and would place the items in boxes which would be sealed and the boxes would
be opened at their office in Pretoria on Wednesday, 30 March 2005. He said that Mr Porritt or
any person authorised by Mr Porritt may be present. . . .

4.2
Superintendent Smith and Director van Graan later came to see Attorney Reed at his
offices (which are just up the street) and said that they did not have time to go through all the

documents and that they were simply going to issue an index indicating the number of lever
arch files removed. They stated, however, that our clients would not be prejudiced as they
could be present or could have a representative present when the boxes were opened in
Pretoria and a proper inventory drawn up. . . .

4.3
On the basis of their concession that they did not have time to go through all the
documents and without prejudice to the rights of our clients, Attorney Reed accepted the offer
that our clients or their representatives could be present when the boxes were opened;
however, he insisted on an index being issued by the SAPS indicating the subject matter of
each file. Director van Graan and Superintendent Smith agreed to let him have this and again
stated that, in any event, our clients and/or their representatives could be present at the
opening of the boxes. . . .

4.4
It was Attorney Reed’s clear understanding that this agreement applied to the
opening of all the boxes sealed during the various search and seizure operations.

4.5
Attorney Reed then spoke to Mrs Bennett [the first respondent] . . .

4.6
Attorney Reed then informed Director van Graan and Superintendent Smith that Mrs
Bennett would not be available on 30 March 2005 as she was involved in a court
case. Attorney Reed was informed by them that if Mrs Bennett could not be present
then she could arrange for someone else to represent her. Attorney Reed thereupon
stated to Director van Graan and Superintendent Smith that this was impractical as
only Mrs Bennett and Mr Porritt (and not someone who had no experience of the
matter) could properly say what documents were covered by the warrants or not. . . .

4.7
The offer made by Superintendent Smith and Director van Graan was unconditional
and was given on the basis that they accepted that the search and seizure operations
were being carried out without the presence of our clients and that all the documents
being removed had not been properly examined or inventoried and may not be
covered by the warrants. It was understood that any prejudice suffered by our clients
could be mitigated by their being present when the sealed boxes were opened.’

[18] It is clear that the existence of privileged documents was not
mentioned by Mr Reed to the members of the Police Service who were
executing the warrants.

[19] The matter is taken further in a letter written on 22 May 2005 by Mr
Harry Pretorius, another attorney who acted at one stage on behalf of the

respondents, in which the following appears:
’10.
With regard to privilege, if our clients had been present at the search and seizure
operations, they would have been able to claim privilege over any articles at the time,
which could then have been placed in a sealed box pending an agreement as to how
these articles would be handled.

11.
However, this did not happen because your client deliberately chose to carry out their
operations on the late morning before the Easter weekend, when any reasonable
person would have known that it was likely that our clients would not be present at
the premises and that their legal representatives would also not be available. In any
case, it would have been impossible for our clients to have been in seven different
locations at the same time, and they were thus denied their right to claim privilege at
the time of the search and seizure.

12.
Attorney Tommy Reed, who was consulted at the Boom Street premises but did not
attend during the entire operation as he too was leaving for the Easter weekend, was
the only person who had any knowledge of the concept of privilege. However, he has
stated that only our clients would know what documents were privileged or not.

13.
The persons who were present at the four premises when documents were seized
had no such knowledge of the concept of privilege or that it could be claimed, or
indeed what documents could be claimed as being privileged. Such persons were the
domestic worker employed by Sue Bennett (and not the businesses) at Delta Road,
the farm manager at Hlani Farm, John Robinson (an estate agent) at Loop Street,
and the receptionist and two bookkeeping staff at Boom Street.

14.
In any event, we do not believe that anyone other than our clients can have had the
requisite knowledge of the facts in order to claim privilege at the time of the seizures.
In this respect, it should be noted that Mrs Bennett has not had sight of stacks of the
documents seized in Pietermaritzburg – only Mr Porritt has – so she would also have
to check with Mr Porritt on what can be claimed as privileged.’

[20] This statement makes it clear beyond any doubt that privilege was not
claimed at the time of the search and seizure at any of the four places where
the warrants were executed.

[21] In the circumstances I am satisfied that the basis for the court a quo’s
finding that the warrants were executed in an unconstitutional and unlawful
manner was incorrect. The members of the police service adopted the

procedure they did with the consent of the respondents’ attorney, Mr Reed.
This procedure was designed to ensure that the respondents would not be
prejudiced in any way. The attorney and client privilege was not in fact
breached because the privileged documents remained sealed in the boxes
until identified, whereupon they were forthwith handed to the respondents. Not
a single document was read by any member of the Police Service or any
other State official.

[22] Counsel for the respondents contended, however, that what they called
the animus of the police when executing the warrants was not relevant when
the lawfulness of the execution of the warrants was under consideration in a
case such as the present when privileged documents were seized. They
contended further that the fact that the documents once seized were put in
sealed boxes and not read by the police was also irrelevant.

[23] Counsel stressed that the warrants did not authorise the seizure of
privileged documents and that in seizing such documents (even though they
were not read and were kept in sealed boxes until identified and handed over
in terms of the process summarised above) the police had acted beyond the
terms of the warrant. Counsel went so far as to submit that the seizure of one
privileged document rendered the whole execution of the warrant in question
invalid with the result that all documents seized thereunder had to be returned
even if they were covered by the express terms of the warrant. It was
contended that this result flowed from the fact that the attorney and client
privilege, for obvious and cogent reasons, enjoys a high degree of protection
under our law. It was conceded that no authority could be found either in our
system or in other jurisdictions supporting the proposition contended for but it
was argued that it was necessary from a policy point of view for such a ruling
to be made. Counsel also contended that, although this was not the law
before the Constitution came into force, the strong adherence to the principle
of legality which characterises our law under the Constitution means that the
law is now different. It was also argued that, if this were not so, the door would
be opened to what were described as cavalier searches with no practical
restrictions. Once they had a search warrant the police could enter premises,

seize whatever took their fancy, sort it at their leisure and hand back what was
not covered by the warrant: there would be no effective sanction to prevent
such behaviour.

[24] In my view this argument is devoid of merit. I can think (without
intending to cover the whole field) of various sanctions which could be
invoked against conduct of the kind described, namely delictual actions for
damages and disciplinary steps against the police officers concerned.

[25] In any event it is difficult to see how considerations of that kind can
operate in a case such as the present where the police officers concerned
acted in the way they did with the consent of the respondents’ attorney and
the authorities went out of their way to devise and implement a process to
prevent prejudice to the respondents.

[26] Nor is it clear why documents covered by a valid search warrant and
seized in execution thereof should be regarded as having been unlawfully
seized merely because privileged documents, which ex hypothesi were not
covered by the warrant, were also seized. Regard being had to the judge’s
order to the effect that the State could copy the documents not covered by
privilege and lodge them for safe keeping with the Registrar of the
Johannesburg High Court (which order was not challenged on appeal before
us) it is difficult to see how the resultant practical problems the State would
encounter in trying to use the documents could be regarded as a sanction,
effective or otherwise, against the police who seized the privileged documents
in the circumstances described.

[27] In the circumstances I am satisfied that the appeal must succeed and
that the judgment of the court a quo cannot be upheld.

[28] As regards costs no costs order was made in the court a quo and
counsel for the appellants did not contend that if the appeal succeeded, the
appellants should be given their costs in the court a quo.

[29] The following order is made:
1.
The appeal is allowed with costs, including those occasioned by the
employment of two counsel.

2.
The order of the court a quo is set aside and replaced with the
following:
‘The application is dismissed.’

……………..
IG FARLAM
JUDGE OF APPEAL
CONCURRING
NUGENT
JA
CLOETE
JA
PONNAN
JA
MLAMBO
JA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM:
The Registrar, Supreme Court of Appeal

DATE:
8 NOVEMBER  2007

STATUS:
Immediate

Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal.

The Supreme Court of Appeal gave judgment today upholding an appeal brought by
the Minister of Safety and Security, the commanding officer of the Serious Economic
Offences Unit and a member of the unit against an order made in the Pretoria High
Court by Mr Justice Bertelsmann in favour of Ms S Bennett, Mr G Porritt and two
companies, in which he declared the execution of certain search warrants to have been
performed in an unconstitutional and unlawful fashion.

Appeal Judge Farlam, with whom Appeal Judges Nugent, Cloete, Ponnan and
Mlambo concurred, held that Mr Justice Bertelsmann had misdirected himself in
holding that the police in this case had intentionally removed privileged documents
from the respondents’ premises.

Appeal Judge Farlam said that the members of the police who executed the warrants
adopted a procedure agreed to by the attorney acting for Ms Bennett, Mr Porritt and
their companies. The documents seized were not read by the police but marked and
placed in sealed boxes. Later the sealed boxes were opened in the presence of an
independent advocate and (except for the last day) either Ms Bennett or Ms Porritt.

Documents found to be privileged were returned to Ms Bennett and Mr Porritt. No
member of the police force participated in the process and not a single document was
read by any member of the police service or any other State official.

Mr Justice Farlam also rejected an argument put up by counsel for Ms Bennett, Mr
Porritt and their companies that the whole search and seizure operation was rendered
unconstitutional because the police had in addition to documents covered by the
warrants, seized privileged documents which were not covered.