THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case number:  639/06
Reportable
In the matter between:

THE NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS
FIRST APPELLANT
INVESTIGATION DIRECTOR: DIRECTORATE
OF SPECIAL OPERATIONS
SECOND APPELLANT
INVESTIGATION DIRECTOR: INVESTIGATING
DIRECTORATE   (SERIOUS ECONOMIC OFFENCES)
THIRD APPELLANT
INVESTIGATING DIRECTOR: INVESTIGATING
DIRECTORATE (CORRUPTION)
FOURTH APPELLANT
DIRECTOR OF PUBLIC PROSECUTIONS
(DURBAN AND COAST LOCAL DIVISION)
FIFTH APPELLANT

and

JACOB GEDLEYIHLEKISA ZUMA
FIRST RESPONDENT
MICHAEL HULLEY
SECOND RESPONDENT

CORAM:
FARLAM, NUGENT, CLOETE, PONNAN et MLAMBO JJA
HEARD:
28 AUGUST 2007
DELIVERED:
8 NOVEMBER 2007
SUMMARY:
Search and seizure – search warrant – validity of – warrants issued in
terms of s 29 of National Prosecuting Authority Act 32 of 1989 –
whether references to suspected offences inappropriately vague.
ORDER OF COURT SET OUT IN PARA 109 IN JUDGMENT OF NUGENT JA.
Neutral citation:
This judgment may be referred to as The National Director of
Public Prosecutions v Zuma [2007] SCA 137 (RSA).
___________________________________________________________

FARLAM JA

INTRODUCTION
[1] This is an appeal against a judgment of Hurt J, sitting in the Durban
High Court, in which he declared five search warrants invalid and the
searches pursuant to them unlawful and ordered the appellants to return to
the respondents all items seized under them together with all copies that had
been made and to pay the costs of the application.

[2] Hurt J’s judgment has been reported: see Zuma v National Director of
Public Prosecutions 2006 (1) SACR 468 (D).

PARTIES
[3] The appellants, who were the respondents in the court below, are the
National Director of Public Prosecutions (first appellant), the Investigating
Director of the Directorate of Special Operations (second appellant), the
Investigating Director of the Investigating Directorate: Serious Economic
Offences (third appellant), the Investigating Director of the Investigating
Directorate: Corruption (fourth appellant) and the Director of Public
Prosecutions for the Durban and Coast Local Division of the High Court (fifth
appellant).

[4] The respondents, who were the applicants in the court below, are Mr
Jacob Zuma (first respondent) and Mr Michael Hulley, who has been acting as
Mr Zuma’s attorney in regard to criminal charges which were brought against
him in June 2005 (second respondent).

RELEVANT STATUTORY PROVISIONS
[5] It is appropriate before the facts in this matter are considered to set out
the relevant statutory provisions. They are contained in ss 28 and 29 of the
National Prosecuting Authority Act 32 of 1998, as amended, which, as far as
is material, provide as follows:
‘28 (1) (a)
If the Investigating Director has reason to suspect that a special offence has
been or is being committed or that an attempt has been or is being made to commit such an
offence, he or she may conduct an investigation on the matter in question, whether or not it
has been reported to him or her in terms of section 27.

(b)
If the National Director refers a matter in relation to the alleged commission or
attempted commission of a specified offence to the Investigating Director, the Investigating
Director shall conduct an investigation, or a preparatory investigation as referred to in
subsection (13), on that matter.

(c)
If the Investigating Director, at any time during the conducting of an investigation on a
matter referred to in paragraph (a) or (b), considers it desirable to do so in the interest of the
administration of justice or in the public interest, he or she may extend the investigation so as
to include any offence, whether or not it is a specified offence, which he or she suspects to be
connected with the subject of the investigation.

. . .

29 (1) The Investigating Director or any person authorised thereto by him or her in writing
may, subject to this section, for the purposes of an investigation at any reasonable time and
without prior notice or with such notice as he or she may deem appropriate, enter any
premises on or in which anything connected with that investigation is or is suspected to be,
and may-
(a)
inspect and search those premises, and there make such enquiries as he or she may
deem necessary;

(b)
examine any object found on or in the premises which has a bearing or might have a
bearing on the investigation in question, and request from the owner or person in charge of
the premises or from any person in whose possession or charge that object is, information
regarding that object;

(c)
make copies of or take extracts from any book or document found on or in the
premises which has a bearing or might have a bearing on the investigation in question, and
request from any person suspected of having the necessary information, an explanation of
any entry therein;

(d)
seize, against the issue of a receipt, anything on or in the premises which has a
bearing or might have a bearing on the investigation in question, or if he or she wishes to
retain it for further examination or for safe custody: Provided that any person from whom a
book or document has been taken under this section may, as long as it is in the possession of
the Investigating Director, at his or her request be allowed, at his or her own expense and
under the supervision of the Investigating Director, to make copies thereof or to take extracts
therefrom at any reasonable time.

(2)
Any entry upon or search of any premises in terms of this section shall be conducted
with strict regard to decency and order, including-
(a)
a person's right to, respect for and the protection of his or her dignity;

(b)
the right of a person to freedom and security; and

(c)
the right of a person to his or her personal privacy.

. . .

(4)
Subject to subsection (10), the premises referred to in subsection (1) may only be
entered, and the acts referred to in subsection (1) may only be performed, by virtue of a
warrant issued in chambers by a magistrate, regional magistrate or judge of the area of
jurisdiction within which the premises is situated: Provided that such a warrant may be issued
by a judge in respect of premises situated in another area of jurisdiction, if he or she deems it
justified.

(5)
A warrant contemplated in subsection (4) may only be issued if it appears to the
magistrate, regional magistrate or judge from information on oath or affirmation, stating-
(a)
the nature of the investigation in terms of section 28;

(b)
that there exists a reasonable suspicion that an offence, which might be a specified
offence, has been or is being committed, or that an attempt was or had been made to commit
such an offence; and

(c)
the need, in regard to the investigation, for a search and seizure in terms of this
section,
that there are reasonable grounds for believing that anything referred to in subsection (1) is
on or in such premises or suspected to be on or in such premises.

. . .

(9)
Any person executing a warrant in terms of this section shall immediately before
commencing with the execution-
(a)
identify himself or herself to the person in control of the premises, if such person is
present, and hand to such person a copy of the warrant or, if such person is not present, affix
such copy to a prominent place on the premises;

(b)
supply such person at his or her request with particulars regarding his or her authority
to execute such a warrant.

(10) (a) The Investigating Director or any person referred to in section 7 (4) (a) 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.’

[6] In Investigating Directorate: Serious Economic Offences v Hyundai
Motor Distributors (Pty) Ltd: in re Hyundai Motor Distributors (Pty) Ltd v Smit
NO, 2001 (1) SA 545 (CC) the Constitutional Court held, inter alia, that s 29
(5) of the National Prosecuting Authority Act (which I shall call in what follows
‘the Act’) is not inconsistent with the Constitution.

FACTS
[7] On 11 August 2005 Mr Johan du Plooy, a senior special investigator
employed at the Directorate of Special Operations, established by s 7 of the
Act, made an affidavit in support of an application for 21 search warrants to be

issued in terms of s 29(5) and 29(6) of the Act. On 12 August 2005 an
application was made in chambers in terms of s 29(4) of the Act to Ngoepe JP
in the Pretoria High Court, for the issue of the warrants sought in Mr du
Plooy’s affidavit and on the same day the learned judge president authorised
the issue of the majority of warrants sought after requiring a modification to
the wording of the drafts submitted to him so that the offences which were the
subject of the investigation were stated.

[8] On the morning of 18 August 2005 the warrants authorised by Ngoepe
JP were executed simultaneously at premises throughout the country by
some 250 members of the Directorate of Special Operations of the National
Prosecuting Authority and approximately 93 000 documents were seized. The
purpose of the searches was to obtain further evidence for use by the
prosecution in the criminal proceedings on charges of corruption then pending
against Mr Zuma and for use in possible criminal proceedings against two
companies, Thint (Pty) Ltd and Thint Holdings (Southern Africa) (Pty) Ltd.

[9] A short time after the searches took place these two companies were
indicted to stand trial as co-accused with Mr Zuma in the Pietermaritzburg
High Court.

[10] Proceedings were instituted in the Johannesburg High Court on 26
August 2005 by Ms J Mahomed, an attorney practising in Gauteng, who had
acted as the legal advisor and representative of Mr Zuma, for an order setting
aside two of the warrants authorised by Ngoepe JP, declaring the searches
and seizures carried out in execution of the warrants to be unlawful and
directing inter alia that all her property seized under the warrants be returned.
On 9 September 2005 Hussain J granted Ms Mohamed the relief she sought.
His judgment, which has been reported as Mahomed v National Director of
Public Prosecutions and Others 2006 (1) SACR 495(W), has also been the
subject of an appeal before us, in which the judgment is being delivered
simultaneously with this one.

[11] On 6 October 2005 Mr Zuma and Mr Hulley brought this application

seeking relief in respect of seven of the warrants authorised by Ngoepe JP.
The attacks on two of the warrants became moot and no order was made in
respect of them.

[12] On 5 January 2006 Thint (Pty) Ltd and its director Mr Pierre Moynot
brought an application in the Pretoria High Court for relief similar to that
sought in the present case in respect of warrants issued by Ngoepe JP
authorising searches and seizures at the company’s office and at the
residence of Mr and Mrs Moynot, both in Pretoria. The respondents were the
first and second appellants in the present matter and Mr du Plooy, who had
deposed to the affidavit on which the application for the warrants was
founded. The respondents conceded the relief sought in respect of the
warrant issued authorising the searches and seizures at the residence of Mr
and Mrs Moynot but opposed the application in respect of the searches and
seizures effected at the office of Thint (Pty) Ltd. The application so limited
failed. Du Plessis J, who heard it, held that the warrant was valid and the
searches and seizures effected under it were valid. Thint (Pty) Ltd and Mr
Moynot have appealed against his judgment and the judgment on their appeal
is also being delivered simultaneously with this one.

[13] The five warrants in regard to which the application succeeded related
to searches of the following premises:
(a)
Mr Zuma’s flat in Killarney, Johannesburg, which was occupied when
the warrant was executed by two of his sons, his daughter and the wife of one
of his sons;

(b)
Mr Zuma’s residence at the Nkandla Traditional Village in the district of
Nkandla in KwaZulu-Natal;

(c)
Mr Zuma’s former office at the Union Buildings, Pretoria;

(d)
Mr Zuma’s former offices at Momentum House, Ordinance Road,
Durban; and

(e)
Mr Hulley’s offices in Durban.

[14] The five warrants authorised by Ngoepe JP which are relevant in the
present case were, except for the particulars relating to the premises to be
searched, in identical terms. 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 inspection, 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.’

[15] Annexure A, to which reference is made in the first paragraph of the
preamble of all the warrants, was also in identical terms in the case of each

warrant except in the case of the warrant authorised in respect of the offices
of the second respondent, Mr Hulley, which I shall deal with presently. It
contained twenty-three numbered paragraphs which followed the wording of
paragraphs 2 to 24 of Annexure A to the warrants authorised for the search at
the residence and offices of Ms Mahomed which formed the subject matter of
the application heard by Hussain J in the Johannesburg High Court and which
are printed in full at pages 514 to 517 and 519 to 522 of the report of his
judgment.

[16] The copy of Annexure A annexed to the warrant authorising the search
of the offices of the second respondent had only two paragraphs. The first
paragraph read as follows:
‘Any records of whatever nature that Hulley and Associates received from Schabir Shaik and
any of the Nkobi entities or any other source in approximately July 2005 concerning the affairs
of Jacob Zuma, and specifically records kept or compiled by Schabir Shaik in his capacity as
financial adviser to Jacob Zuma.’

[17] The wording of the second paragraph followed the wording of the
twenty third paragraph of Annexure A in the other warrants under
consideration in this case and the twenty fourth paragraph of that Annexure in
the two warrants printed at the end of Hussain J’s judgment to which I have
referred. Hurt J described it as a ‘catch-all paragraph’. It read as follows:
‘In general any record or financial records of whatever nature, including ledgers, cash books,
company registers, share registers, share certificates, bank documents, notes, minutes of
meetings, diary entries, records of telephone conversations and any other correspondence, e
mails, faxes, documentation, or electronic computer data which have a bearing or might have
a bearing on the investigation. Electronic computer data includes computers, laptops, stiffies,
hard drives, compact discs, data cartridges, backups, electronic devices and any other form in
which electronic information can be stored or saved. Records of telephone conversations
include cell phone data stored in any cell phones.’

[18] Annexure B, to which reference was made in the authorising paragraph
of all the warrants, was identically worded in each case. It read as follows:
‘1.
Making two mirror images (complete disc copies) of computers, laptops notebooks or
hard drives, or any other electronic device on which information can be stored or saved, such
as stiffies, compact discs and floppies.

2.
Making digital images of any of the above for identification purposes.

3.
Seizing computer hardware and software components and computer manuals
necessary to facilitate forensic analysis.

4.
Thereafter, and at a location removed from the premises, conducting searches by
way of forensic analysis to identify and retrieve all information which has a bearing, or might
have a bearing, on the investigation in question.’

[19] There was a dispute on the affidavits as to what happened when the
warrant authorised in respect of the second respondent’s offices was
executed. Hurt J (at 489 b) relied only on the evidence given by the
deponents for the appellants. (In doing so he was in my view correct, as the
rule in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA
623 (A) clearly applies, at least as far as disputes of fact relating to the
execution of the warrants is concerned: whether it also applies in respect of
disputes relevant to the authorisation of the warrants need not now be
considered.)

[20] According to the version relied on by the learned judge Mr Johannes
van Loggerenberg, a senior special investigator employed at the Directorate
of Special Operations, who was the leader of the team which executed the
search warrant at the second respondent’s offices, arrived at the offices with a
team of seven searchers before the second respondent did. When the second
respondent arrived, Mr van Loggerenberg gave him a copy of the warrant
which he read. He then informed Mr van Loggerenberg and his team that he
could assist them by pointing out the documents he had received relating to
the first respondent. (The reference was clearly to the documents referred to
in the first paragraph of Annexure A to the warrant which he had read.) Mr van
Loggerenberg followed the second respondent to his filing office where he
pointed out two file boxes (which were still unopened), on the side of each of
which was a foolscap page reflecting the contents of each box. With the
agreement of Mr van Loggerenberg the second respondent made copies of
the inventories of each box. The boxes were seized and the second

respondent was given a receipt for them. Some time thereafter the second
respondent, who had been telephoned by the first respondent and told of the
searches in Johannesburg and Nkandla, left for the airport en route to
Johannesburg. On his way to the airport he telephoned Mr Anton Steynberg,
a Deputy Director of Public Prosecutions, stationed at the regional office of
the Directorate of Special Operations, KwaZulu-Natal, and told him that he
wanted to challenge the lawfulness of the searches and that for that purpose
he needed a copy of Mr du Plooy’s affidavit pursuant to which the warrants
had been obtained. After contacting his leader, Mr WJ Downer SC, who was
in charge of the investigation, Mr Steynberg reverted to the second
respondent and told him that he could obtain a copy of the affidavit from the
registrar of the Pretoria High Court. The second respondent then asked
whether all the documents seized could be sealed and lodged with the
registrar of the High Court until the lawfulness of the search had been
determined. Mr Steynberg’s response was that he would check with Mr
Downer but that the law did not make provision for documents to be lodged
with the registrar in such circumstances. He then spoke to Mr Downer, who
agreed with his approach. When he next spoke to the second respondent,
who by this time had arrived in Johannesburg, Mr Steynberg told him what Mr
Downer had said and suggested that he contact him. Thereafter the second
respondent telephoned Mr Downer and requested him to stop the search until
he had a copy of Mr du Plooy’s affidavit and had had an opportunity to apply
for a court order declaring the search of his offices unlawful. Mr Downer
declined this request. He stated in his affidavit that the second respondent
made no other request of him and did not claim privilege in respect of any of
the documentation which had been in his possession. ‘All he did’, said Mr
Downer, ‘was to ask me what would happen if any documents were privileged
and I said to him that he must decide which documents he considered to be
privileged.’ Mr Downer also said to the second respondent that it did not seem
to him that any of them could be privileged because they emanated from Mr
Shaik’s attorney, Mr Parsee, according to whom they consisted of financial
records.

[21] Later that day the second respondent spoke to Mr George Baloyi, a

Deputy Director of Public Prosecutions attached to the office of the Director of
Public Prosecutions, Pretoria. He asked Mr Baloyi to agree to his proposal
that the papers seized at his offices be deposited with the registrar. He stated
that he needed time to peruse the papers, consult with counsel and then
make a decision whether to challenge the legality of the search warrants. ‘His
request was’, said Mr Baloyi, ‘that pending such a decision, the documents be
deposited with the registrar.’ Mr Baloyi told the second respondent that he
would discuss the matter with Mr Downer.

[22] The next morning the second respondent received a copy of Mr du
Plooy’s affidavit from Mr Baloyi, who told him that his request could not be
acceded to. That afternoon the second respondent sent a telefax to Mr
Steynberg in which he stated his view:
(1)
that ‘a certain privilege attaches to the entire body of documents
seized’ from his offices; and
(2)
that in terms of the Act the ‘documents ought to be lodged with the
Registrar in these circumstances’.

[23] Mr Steynberg replied as follows on 22 August 2005:
‘The search and seizure operation conducted at your offices on 18 August and our
subsequent telephone conversations refer.

I am informed by the DSO [Directorate of Special Operations] members who conducted the
search that you pointed out to them the documents described in the search warrant, namely
the financial documents relating to Mr Zuma that were forwarded to you by his former
financial manager, Mr Schabir Shaik, via his attorney Mr Reeves Parsee. No other documents
were read or seized by the DSO members, nor were your offices physically searched.

I am informed further that at no stage did you or any of your staff indicate to the members
present that the documents seized were, or might be, privileged.

In the abovementioned circumstances, we are of the view that such documents constitute
evidentiary material that is highly relevant to the current investigation and that no legal
privilege attaches to such documents.

We are therefore of the view that there is no reason in law why these documents should be

handed to the registrar for safekeeping and accordingly we decline to do so.’

DECISION OF COURT A QUO
[24] Hurt J’s decision in favour of the respondents was based on three
separate grounds. The first ground was that the appellants had not shown, as
s 29(5)(c) required, that there was a need for a search and seizure in terms of
the section. This was because the material put before Ngoepe JP did not
contain a persuasive explanation of the necessity to invoke the provisions of
the section.

[25] He expressed the view that it was ‘open to considerable doubt’ whether
the additional evidence sought was needed by the authorities for the purposes
of their investigation. In any event, he held, even if the evidence was
necessary, it had not been established that it could not be obtained by
invoking the provisions of s 28.

[26] The second ground on which Hurt J’s judgment was based was that
the warrants were unduly vague in two respects.

[27] The first was that they did not describe the suspected offences under
investigation with sufficient particularity. He referred in this regard to the
dictum of this court in Powell NO v Van der Merwe NO 2005 (5) SA 62 (SCA)
in para 59 (d) and (e) that ‘a warrant must convey intelligibly to both searcher
and searched the ambit of the search it authorises’ and that ‘(i)t is no cure for
an overbroad warrant to say that the subject of the search knew or ought to
have known what was being looked for: the warrant must itself specify its
object, and must do so intelligibly and narrowly within the bounds of the
empowering statute.’

He continued (at 487b-f):
‘I consider that the precept in Powell’s case, requiring the warrant to convey the ambit of the
search “intelligibly”, includes a requirement that the person to be searched must be given
information as to approximately when the suspected offences have been committed and who
is suspected of having committed them. It should be noted, as I have indicated earlier, that
the warrants in this case are in the form of a notification by the authorising, judicial officer that

it “appears to (him/her) from information on oath” that the reasonable suspicion exists. The
information on oath which was submitted to obtain authorisation for these warrants was that
the suspected corruption arose from conduct, up to 2002, between the first applicant and Mr
Shaik, that the suspected money laundering occurred over a similar period and that the fraud
and tax offences related to non-disclosure in declarations required by statute. There was also,
of course, the vague suggestion of a suspicion that corrupt activities may have continued
beyond 2002. Without including those limits in the warrants, it would be impossible for the
person on the receiving end of their execution to know what the searchers might reasonably
be entitled to look for. I accordingly hold the view that the references to the suspected
offences in the warrants are inappropriately vague and that the warrants are all invalid on that
ground.’

[28] The second respect in which it was held that the warrants were unduly
vague was based on the ‘catch-all paragraph’, which, in effect, so he held,
constituted ‘authority to search an accused person’s premises “to find
anything that [would] help [the appellants] in the prosecution”.’ He held further
that the ‘catch-all paragraph’ in each of the warrants was not severable from
the rest of the warrants because the authorities relied on in support of the
severance argument (Cine Films (Pty) Ltd v Commissioner of Police 1972 (2)
SA 254 (A) at 268 and Divisional Commissioner of SA Police, Witwatersrand
Area, v SA Associated Newspapers Ltd 1966 (2) SA 503 (A) at 513 A-B)
predated the Constitution and constitutional considerations now prevent the
warrants in this case being pruned down to acceptable limits ex post facto.

[29] The third ground on which the judgment was based involved a finding
that the second appellant should have been aware that attorney-client
privilege might be jeopardised in the course of the search of the second
respondent’s offices, which could have resulted not only in prejudice to the
respondents but also in a violation of the first respondent’s fair trial rights. This
could have been prevented either by referring in the warrant to the provisions
of s 29(11) or by bringing these provisions to the attention of the second
respondent when the warrant was served on him.

[30] In the course of his judgment Hurt J also considered and rejected a
submission advanced before him by counsel for the respondents, which was
repeated in argument in this court, to the effect that the powers conferred by s

29 can only be used against a person suspected of having committed a crime
or crimes before he or she becomes an accused.

[31] Hurt J assumed in his judgment that the formal steps required to be
followed by the appellants to obtain and thereafter execute the warrants
complied with the statutory requirements. He accordingly made no finding on
a number of issues raised in this regard on the papers by the respondents.

[32] In this court counsel for the respondents once again raised the
contentions which Hurt J had assumed, without deciding, were not correct.

DISCUSSION:
THE VALIDITY OF THE WARRANTS
[33] As appears from the summary of Hurt J’s judgment I have given, his
finding that the warrants under consideration in this case were invalid
because they were, as he put it, ‘inappropriately vague’ was based upon the
application of the summary of the law on the point appearing in para 59(d) of
the judgment of this court in Powell NO v Van der Merwe NO, supra. In this
regard Hurt J found that the failure to include in the warrants the information
relating to the nature of the investigation for the purpose of which the warrants
were sought resulted in their not conveying to the persons on the receiving
end of the warrants the ambit of the searches authorised by the warrants.
That the warrants read on their own, without reference to Mr du Plooy’s
founding affidavit, were so defective cannot be gainsaid. It is clear from the
operative part of the warrants that the power to examine and thereafter seize
objects conferred was confined to things which had or might have a bearing
‘on the investigation in question’ but the terms of the investigation were stated
in such general terms that it was not possible to ascertain what it covered.

[34] Mr Trengove, who appeared with Mr Salmon and Mr Breitenbach for
the appellants, endeavoured to meet this point by submitting that para 59(d)
of this court’s judgment in Powell does not require that the warrant be
intelligible ‘then and there’, as it was put, ie, at the time of the search, and that
it is enough that the ambit of the search should be intelligible when and if

challenged in court after the person whose premises have been searched has
had sight of the founding affidavit on the strength of which the warrant was
issued. He pointed out that although para 59 in Powell purports to be a
summary of the legal position as set out in the cases discussed in this part of
the judgment the requirement of intelligibility to the searched did not feature at
all in that discussion and that, as he put it, its pedigree was not clear. He did
not, however, submit that this requirement in the judgment was incorrect but
merely that it had to be qualified in the way I have indicated. He stated that he
was unable to point to any authority in our law either for or against his
submission in this regard and Mr Kemp, who appeared with Mr Smithers on
behalf of the respondents, and argued for the contrary proposition, indicated
that he was also unable to refer to authority on the point.

[35] In my view Mr Trengrove’s attempt to introduce this qualification into
what was said on the point in Powell cannot succeed. The suggested
qualification is not only against the trend of the South African authorities to
which I shall refer presently as well as that of decisions in Australia and New
Zealand but there are also compelling reasons why that should be so, as I
shall endeavour to indicate.

[36] I begin with the South African authorities to which reference was made
in Powell. In Pullen NO v Waja 1929 TPD 838 at 849 Tindall J in a passage
quoted in Powell at para 54 said:
It is desirable that the person whose premises are being invaded should know the reason
why: the arguments in favour of the desirability of such a practice are obvious.’

[37] In Minister of Justice v Desai NO 1948 (3) SA 395 (A) the same judge,
by this time Tindall ACJ, said (at 405), when discussing the desirability of
including a recital in a warrant:
‘a recital is a helpful part of a search warrant if it is properly drafted, for it apprises the
occupier whose premises are searched of the reason for the encroachment on his rights and
thus may tend to allay resentment and prevent obstruction of the police.’

[38] The topic is considered in a number of judgments delivered elsewhere
in the Commonwealth, many of which are collected in the comprehensive

judgment of Burchett J delivered in the Federal Court of Australia in Beneficial
Finance Corporation Ltd v Commissioner of Australian Federal Police (1991)
103 ALR 167 (Fed C of A). The statutory provisions considered in those cases
were not materially different from those under consideration here. One of the
cases to which he referred was Auckland Medical Aid Trust v Taylor [1975] 1
NZR 728 (CA) in which McCarthy P said (at 736 line 50 to 737 line 2):
‘As, according to my view, s 198 required a warrant to be issued in respect of a particular
offence, it seems to me to be a necessary requirement still that there be sufficient particularity
to enable, as I have said, the officer executing it to know to what offence the articles he is
searching for must relate, and to enable the owner of the premises to understand, and if
necessary to obtain legal advice about, the permissible limits of the search.’ (The emphasis is
mine.)

In the same case McMullin J said (at 749 lines 12 to 22 and 37 to 42):
‘It is important . . . that the executing officer should know just what is the offence in respect of
which the warrant is issued for without that knowledge the search may be unbounded. It is
important, too, to the householder who may be concerned to know the scope of the warrant.
He is entitled to have the warrant produced to him by the officer executing it (s 198 (8)).[As he
is in our law (s 29(9)(a)).] The production of a warrant may have a twofold purpose, (i) to
satisfy a householder that the person presenting the warrant is a person having judicial
authority to enter the premises, and (ii) to enable the householder to ascertain to what things
the search is to be directed. . . . I am of the opinion that there should be a sufficient measure
of particularisation of the offence in the warrant to enable both the officer executing the
warrant and the person on whose premises it is to be executed (who may not be the suspect)
to know just what are the metes and bounds of the search and seizure contemplated.’ (Again,
my emphasis.)
(See also Rosenberg v Jaine [1983] NZLR 1 at 5 and Tranz Rail Ltd v
Wellington District Court [2002] 3 NZLR 780 (CA) at 793 line 48 to 794 line 3.)

[39] Another decision to which Burdett J referred (at 183) was an
unreported judgment of Toohey J in Quartermaine v Netto, delivered on 14
December 1984, in which the following was said:
‘The requirement of particularity is not merely formal; it is aimed at ensuring that the person
whose premises are being searched knows the object of the search and can therefore make
some assessment of the material likely to prove relevant. It is unacceptable that such a
person be left in the dark as to the object of the search.’

[40] In the case before him Toohey J held that there was ‘sufficient

precision to enable the officer executing the warrant to know what he is
required to look for and for those in whose premises documents are found to
make some assessment of what is required of them.’

[41] The matter was also considered by the English Court of Appeal in
Regina v Inland Revenue Commissioners, Ex parte Rossminster Ltd 1980 AC
952. That case concerned a warrant issued by the Common Serjeant of the
City of London under s 20C of the Taxes Management Act 1970, as
amended. The warrant was addressed to various officers of the Board of
Revenue and it authorised them to enter certain premises, to search them and
to ‘seize and remove any things whatsoever found there which you have
reasonable cause to believe may be required as evidence for the purpose of
proceedings in respect of such an offence.’ The expression ‘such an offence’
was a reference to ‘an offence involving fraud in connection with or in relation
to tax’. The warrant was challenged on the ground that it did not specify any
particular offence involving fraud in connection with or in relation to tax. It was
suggested that there might be twenty different kinds of such fraud.

[42] The application failed in the Queen’s Bench Divisional Court but
succeeded in the Court of Appeal. An appeal by the revenue commissioners
to the House of Lords succeeded, mainly, as I see it, as far as the point
presently under consideration is concerned, on what was held to be the
correct construction of the section under which the warrant was issued. The
Court of Appeal’s construction of the section was held to be erroneous.

[43] In my view, however, the reasoning contained in Lord Denning MR’s
judgment on the point presently under discussion does apply to our section
construed against the background of the Constitution and the rights set forth
in our Bill of Rights, particularly s 14, which entrenches the right to privacy.
Moreover our section, unlike s 20c of the Taxes Management Act, requires
that a person who seizes anything should be authorized to do so by the
warrant.

[44] The passage in Lord Denning MR’s judgment which is in my view

relevant in this case runs from 973H to 974F. It reads as follows:
‘(T)he vice of a general warrant of this kind – which does not specify any particular offence –
is two-fold. It gives no help to the officers when they have to exercise it. It means also that
they can roam wide and large, seizing and taking pretty well all a man’s documents and
papers.

There is some assistance to be found in the cases. I refer to the law about arrest – when a
man is arrested under a warrant for an offence. It is then established by a decision of the
House of Lords that the warrant has to specify the particular offence with which the man is
charged: see Christie v Leachinsky [1947] A.C. 573. I will read what Viscount Simon said, at p
585:
“if the arrest was authorised by magisterial warrant, or if proceedings were instituted by the
issue of a summons, it is clear law that the warrant or summons must specify the offence . . .
it is  a principle involved in our ancient jurisprudence. Moreover, the warrant must be founded
on information in writing and on oath and, except where a particular statute provides
otherwise, the information and the warrant must particularise the offence charged.”

Lord Simonds put it more graphically when he said, at p. 592:
“Arrested with or without a warrant the subject is entitled to know why he is deprived of his
freedom, if only in order that he may, without a moment’s delay, take such steps as will
enable him to regain it.”

So here. When the officers of the Inland Revenue come armed with a warrant to search a
man’s home or his office, it seems to me that he is entitled to say: “Of what offence do you
suspect me? You are claiming to enter my house and to seize my papers.” And when they
look at the papers and seize them, he should be able to say: “Why are you seizing these
papers? Of what offence do you suspect me? What have these to do with your case?” Unless
he knows the particular offence charged, he cannot take steps to secure himself or his
property. So it seems to me, as a matter of construction of the statute and therefore of the
warrant – in pursuance of our traditional role to protect the liberty of the individual – it is our
duty to say that the warrant must particularise the specific offence which is charged as being
fraud on the revenue.

If this be right, it follows necessarily that this warrant is bad. It should have specified the
particular offence of which the man is suspected. On this ground I would hold that certiorari
should go to quash the warrant.’

[45] The passages quoted from Christie v Leachinsky, supra, by Lord
Denning MR were in accordance with our law even before the Interim

Constitution came into force: see, eg, Minister of Law and Order v Kader 1991
(1) SA 41 (A) at 46D-E.

[46] In the circumstances I am satisfied that para 59 of Cameron JA’s
judgment in Powell correctly states the legal position to be applied in this case
and that the ‘not then and there’ qualification argued for by Mr Trengove
would not be correct.

[47] Mr Trengove also submitted that in deciding whether the warrants were
intelligible ‘to the searched’ one had to take into account the knowledge
already possessed by Mr Zuma, not by the persons to whom the warrants in
question were presented when the searches began. I think that there are two
answers to this submission.

[48] First, regard being had to the need for the warrant, standing on its own,
then and there to indicate with the required specificity ‘the metes and bounds’
of the authorised search and seizure, so that steps could be taken without a
moment’s delay for unauthorised search and seizure to be stopped, it must
follow, as Mr Kemp in my view correctly submitted, that the warrant must be
reasonably intelligible to the person to whom it has to be presented in terms of
s 29(9)(a) of the Act. Secondly, even if Mr Zuma can be regarded as having
had the requisite knowledge so as to understand the full ambit of the warrants
(a matter on which I make no finding), I think that the answer to the
submission is contained in subparagraph (f) of para 59 in Powell, which, it will
be recalled, reads:
‘It is no cure for an overbroad warrant to say that the subject of the search knew or ought to
have known what was being looked for: The warrant must itself specify its object, and must do
so intelligibly and narrowly within the bounds of the empowering statute.’

[49] I do not think that the appellants’ case is taken any further by a
consideration of the provisions of s 29 (10)(b). First, it is not clear whether the
paragraph can pass constitutional muster unless a provision requiring
disclosure to the ‘searched’ person of sufficient information to enable him or
her to know ‘the metes and bounds of the search and seizure contemplated’ is

to be read in. Secondly, the need for an urgent search and seizure operation
as envisaged under ss (10) did not exist in this case. It may be that if such a
need had existed ‘the metes and bounds’ requirement may have been
capable of being dispensed with on the application of the principles set forth in
s 36 of the Constitution.

[50] What is important in this case is that s 29 (9)(a) requires a copy of the
warrant to be handed to the person in control of the premises or affixed to a
prominent place on the premises if such person is not present. As McCarthy P
said in the Medical Aid Trust case, supra (at 736 line 39), the corresponding
requirement in the New Zealand statute was put there for some purpose.
What that purpose is appears clearly from the authorities to which I have
referred. A construction of our section which would defeat that purpose can
clearly not be upheld and could lead in certain cases to invasions of privacy
which are totally unacceptable and contrary to the spirit, purport and objects
of our Bill of Rights.

[51] In view of the fact that I am satisfied that Hurt J was correct in holding
that all the warrants were invalid because they did not intelligibly convey the
ambit of the search, it is unnecessary for me to consider Mr Trengove’s
submission that Hurt J erred in holding that the ‘catch-all paragraph’ could not
be severed from the rest of the warrants. It is appropriate, however, to record
that Mr Kemp, in my view correctly, did not support Hurt J’s view that
‘constitutional considerations have superseded the considerations which led
the Appellate Division to hold that offending portions of a warrant could be
severed from the acceptable potions’ in the Cine Films and SA Associated
Newspapers cases. In the Ferucci case, which Hurt J purported to follow, the
court found (at 234 F) that severance was not possible because the difficulties
flowing from the terms and contents of the warrant permeated the warrant as
a whole, not because of new constitutional considerations which rendered the
two Appellate Division cases no longer applicable.

[52] In the circumstances I am satisfied that Hurt J correctly held that the
five warrants with which he was concerned were invalid.

SHOULD A PRESERVATION ORDER BE GRANTED?
[53] In view of the fact that I have come to the conclusion that Hurt J
correctly held that the warrants under consideration in this matter were invalid
it is necessary to consider Mr Trengove’s further submission that the order of
the court a quo should be varied by inserting therein paragraphs which are
designed to ensure the preservation of the evidential material gathered under
the warrants or copies thereof.

[54] Mr Trengove contended that a decision to the effect that the warrants
were invalid amounts to a finding that the appellants unlawfully infringed the
respondents’ rights to privacy which are constitutionally entrenched in the Bill
of Rights. The court has, so it was submitted, a wide discretion to determine
the appropriate remedy in cases involving the infringement of constitutional
rights. In this regard reliance was placed on s 38 and s 172 (1) of the
Constitution.

[55] These provisions read, as far as is material, as follows:
’38
Anyone listed in this section [which includes “anyone acting in their own interest”] has
the right to approach a competent court, alleging that a right in the Bill of Rights has been
infringed or threatened, and the court may grant appropriate relief, including a declaration of
rights . . .’

‘172 (1)
When deciding a constitutional matter within its power, a court
(a)
must declare that any law or conduct that is inconsistent with the Constitution is
invalid to the extent of its inconsistency; and

(b)
may make any order that is just and equitable, including –

(i)
an order limiting the retrospective effect of the declaration of invalidity; and
(ii)
an order suspending the declaration of invalidity for any period and on any conditions,
to allow the competent authority to correct the defect.’

[56] Mr Trengove submitted that in fashioning appropriate remedies so as
to deal with constitutional violations the courts have to have regard to the
interests of third parties where these are or would be involved. Examples of

cases where this was done are Modderklip Boerdery (Pty) Ltd 2004 (6) SA 40
(SCA), MEC Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478
(SCA) and MEC for Local Government and Development Planning, Western
Cape v Paarl Poultry Enterprises CC trading as Rosendal Poultry Farm 2002
(3) SA 1 CC. He pointed out that the public have an interest in the prosecution
of criminals: indeed, as was said in S v Basson 2005 (1) SA 171 (CC) at para
33 the effective prosecution of crime is an important constitutional objective.
In the same case at para 32 it was said that ‘[t]he constitutional obligation
upon the State to prosecute those offences which threaten or infringe the
rights of citizens is of central importance in our constitutional framework.’ (See
also Key v Attorney-General, Cape Provincial Division 1996 (4) SA 187 (CC)
at para 13.)

[57] It was further submitted that a declaration that the warrants are invalid
coupled with a preservation order would, in the language of s 172 (1)(b) of the
Constitution, be ‘just and equitable’ because it would recognise and balance
all the constitutional interests involved.

[58] Mr Trengove contended further that there was ample reason for the
exercise in the way suggested of the court’s remedial discretion. He listed four
factors, viz:
(1)
It is clear that the State at all times acted in good faith and there is no
suggestion, nor can there be, that it acted in bad faith or with ulterior purpose.

(2)
This is not a case of crass or gross violations of human rights;

(3)
The search and seizure was undertaken in the course of an
investigation of serious crimes of high public interest. All persons concerned,
State, police and potential accused, have a material interest in the search for
the truth and the materials seized can only contribute to that end. It follows
that an order should be fashioned which preserves the evidence and does not
expose it to the risk that it might be lost.

(4)
In view of the suggestion made in the respondent’s papers that Mr

Zuma’s professional privilege may have been breached as a result of the
execution of the warrants, it may become an issue at a possible future trial of
Mr Zuma whether he has suffered irreparable prejudice in this regard. The
interests of justice require that that issue should be capable of the easy and
definitive resolution which only the preservation of copies of the materials
seized can ensure.

[59] In support of his contention that this court should in the exercise of its
wide powers under s 38 and s 172(1) of the Constitution Mr Trengove referred
to the position in Canada where the applicable constitutional provisions
resemble ours in certain respects. In particular s 24(1) of the Canadian
Charter of Rights and Freedoms, which provides that ‘[a]nyone whose rights
and freedoms, as guaranteed by this Charter, have been infringed or denied
may apply to a court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances’, uses language
which appears to have influenced the framers of our Constitution in the
drafting of s 38 and s 172 (1). In addition our s 35(5) (which provides that
‘evidence obtained in a manner that violates any right in the Bill of Rights
must be excluded if the admission of that evidence would render the trial
unfair or otherwise be detrimental to the administration of justice’) is clearly
influenced by s 24(2) of the Charter, which reads as follows:
‘(2)
Where, in proceedings under subsection (1), a court concludes that evidence was
obtained in a manner that infringed or denied any rights or freedoms guaranteed by this
Charter, the evidence shall be excluded if it is established that, having regard to all the
circumstances, the admission of it in the proceedings would bring the administration of justice
into disrepute.’

[60] Mr Trengove referred to the fact that some courts in Canada have
adopted the view that unconstitutionally obtained evidence should always be
returned unless ‘the initial possession by the person from whom the things
were seized was itself illicit, eg, in the case of prohibited drugs or weapons’:
see Lagiorgio v the Queen (1987) 42 DLR (4th) 764 (Federal Court of Appeal)
at 767. In that case Hugessen J said (ibid): ‘Anything less negates the right
and denies the remedy.’ Another case where a similar stance was adopted
was Re Weigel and The Queen (1983) 1 DLR (4th) 374 (Sask QB), in which

Noble J said (at 380): ‘The rights of an accused must not be given away just
to make it easier for the Crown to prosecute an accused person.’ Earlier in his
judgment (at 379) he had said that it was necessary that illegally obtained
evidence be returned to provide incentives for proper investigative conduct.
‘What justification’, he asked, ‘is there for ruling on the one hand that the issue
of a search warrant was illegally made and in the next breath saying to the
authorities – that is alright – you can use the seized articles as evidence
against the accused anyway. Can it be said this clearly contradictory position
will encourage police officers and persons in authority to abide by the laws
designed to protect the rights of the ordinary citizen? I think not.’

[61] Mr Trengove also drew our attention to another line of cases in Canada
where a more flexible approach was adopted. In one of them, Re Dobney
Foundry Ltd and The Queen (No.2) (1985) 19 CCC (3d) 465, a judgment of
the British Columbia Court of Appeal, Esson JA criticised the line of cases
which included Re Weigel and The Queen, supra, saying (at para 19) that
they rested ‘upon the premise that the purpose and effect of the Charter is to
elevate individual rights and freedoms to an absolute value which excludes
any consideration of competing values such as the desirability that the
criminal law be enforced. The rationale for that approach is that only “the
police” are concerned with the enforcement of the criminal law. That
approach, I suggest, ignores the reality of the matter, viz., the interests of the
community as a whole require that a reasonable balance be struck between
individual rights and community interest.’

[62] The order made in that case was that the justice of the peace in whose
possession the documents were being kept under seal pursuant to an early
interim order of the court should return the documents seized to the
appellants within seven days from the date of service of his order provided
that if a new warrant or warrants had been obtained before the expiration of
seven days the justice of the peace was to deliver to the Crown all documents
covered by the warrant or warrants and to return all other documents to the
appellants.

[63] In the course of his judgment Esson JA referred to Re Chapman and R
(1984) 12 CCC (3d) 1 (Ontario Court of Appeal), a decision in which the court
had ordered the return of documents seized under an invalid warrant, despite
an assertion by the Crown that the items were needed for the purpose of a
criminal prosecution. It had done so not by applying a rigid rule but in the
exercise of a discretion.

[64] Another decision of the Ontario Court of Appeal on the point is
Commodore Business Machines Ltd v Canada (Director of Investigation and
Research) (1986) 50 DLR (4th) 559 (Ont C.A.), where stating (at 562) that ‘[i]t
may be that in many, if not most, of the situations where a search has been
conducted in violation of Charter rights the goods seized should be returned’,
Cory JA made an order permitting the Crown to retain copies of the
documents seized.

[65] Mr Trengove submitted that the flexible approach adopted by the
Ontario Court of Appeal should be followed. He cited with approval views of
Professor Kent Roach of the University of Toronto which are set out in his
book Constitutional Remedies in Canada (para 9.770) as follows:
‘ In my view, the Ontario Court of Appeal’s approach is to be preferred to those taken by other
courts. It allows courts to return evidence when necessary either to correct a s. 8 violation by
restoring illegally seized property or to avoid condoning and participating in a serious
violation. If courts refuse to return evidence obtained through flagrant breaches of the
Charter, they will not only condone the unacceptable conduct, but actually assist it by
retaining the fruits of illegal searches. At the same time, it is difficult to argue that crime
control considerations should never be considered, especially in cases where the evidence, if
returned, is likely to be destroyed or otherwise not be available in subsequent trials. Courts
should recognize that the return of evidence is in a practical sense related to its possible
exclusion at a criminal trial and should be hesitant to return evidence, if its exclusion could be
not justified under s. 24(2).’

[66] It was accordingly contended that the court has the power, which in the
circumstances of this case it should exercise, to fashion an order which
preserves the evidence seized under the warrants (or copies thereof) so that
the trial court can ultimately determine whether it should nonetheless be
admissible in evidence. He submitted that the order should be sufficiently

widely framed to ensure that if following the final determination of this appeal
and the related appeals Mr Zuma is not charged at all or if he is not charged
within a reasonable time he and Mr Hulley may apply on the same papers
duly amplified for an order directing the registrar to release the materials to
them.

[67] Mr Kemp submitted that if this court were to hold that the warrants
were invalid, the court should simply order the return of the documents. He
submitted that the rights protected by s 14 of the Constitution include the right
to control one’s information and submitted that the violation of the
respondents’ rights would only end when the documents were handed back.

[68] In my view Mr Trengove was correct in submitting that this court has
the power to order that the documents or copies should be retained under
seal by the Registrar of the Durban High Court. It is true that such an order
would involve a continuation to some extent (although a relatively minor one)
of the violation of the respondent’s constitutional rights to the documents but it
is clear that the court’s power under s 38 and s 172 (1) of the Constitution is
wide enough to cover this.

[69] For the reasons given by Mr Trengove I think it would be appropriate in
this case for an order to be made for the preservation under seal by the
Registrar of the Durban High Court of copies of the documents seized under
the warrants declared invalid in this case, with the originals being handed
back to Mr Zuma and Mr Hulley.

SUGGESTED ORDER
[70] The following order should in my view be made.
1.
Subject to what is set out below, the appeal is dismissed with costs
including those occasioned by the employment of two counsel.

2.
The order of the High Court is varied by the substitution of the following
paragraph for the existing paragraph 2:

‘2 (a) The respondents are ordered to hand over to the registrar forthwith all
items seized and removed from the respective premises in terms of the
aforesaid warrants together with all copies of such items which the
respondents or their agents may have made while the items have been in
their possession, irrespective of the means by which such copies have been
made or taken.

(b)
The registrar is ordered to make copies (either in person or through a
delegate) in the presence of the attorneys for the applicants and the
respondents of all the documents seized pursuant to the warrants referred to
in paragraph 1 and to cause images of all computer materials seized pursuant
to such warrants to be made by an expert appointed by the registrar and must
hand over to the applicants’ attorneys the originals of the documents and the
computer materials seized and all copies of such items which the respondents
or their agents may have made while the items have been in their possession
(irrespective of the means by which such copies have been made or taken)
after the copying process is complete.

(c)
The registrar is directed to retain the copies and computer images
made in terms of subparagraph (b) and to keep them accessible, safe and
intact under seal until:
(i)
notified by the respondents that the retained items or any of them may
be returned to the applicants; or
(ii)
if proceedings are instituted pursuant to the investigation referred to in
the founding affidavit placed before Ngoepe JP when the said warrants
were authorised, the conclusion of such proceedings; or

(iii)
the date upon which the first respondent decides not to institute or to
abandon such proceedings;

whereupon the items so retained must be returned to the applicants.

(d)
The provisions of subparagraphs (b) and (c) are subject to:
(i)
any order of any competent court (whether obtained at the instance of

the applicants or the respondents);

(ii)
the lawful execution of any search warrant obtained in the future; or

(iii)
the duty of either of the applicants or the registrar to comply with any
lawful subpoena issued in the future

(e)
the respondents must not take any step to obtain access to any of the
retained or returned items unless they give the applicants reasonable prior
notice before any such step is taken: in particular, but without derogating from
the generality of this provision the respondents may not take any such step
without giving the applicants:
(i)
reasonable prior notice of any application for a search warrant or an
order directing either or both of the applicants or the registrar to deliver
or release any retained or returned item; and

(ii)
a reasonable opportunity to challenge in court any subpoena before
either of the applicants or the registrar is obliged to comply with it.

(f)
The respondents must pay all costs of implementing the provisions of
this paragraph.’

________________
IG FARLAM
JUDGE OF APPEAL

CONCURRING
CLOETE JA

NUGENT JA:

[71] I have read the judgment of my colleague Farlam. I cannot agree with
the order that he proposes and I regret that I must indeed gainsay his view
that the warrants were defective.

[72] In the course of his judgment the learned judge in the court below
made certain observations that reflect an approach that I think is
fundamentally unsound. The learned judge observed that with time the courts
will develop a body of practice as to the circumstances in which it is
appropriate for a warrant to be issued and, so it seems from what he said, as
to the form that such a warrant must take, in much the way that courts have
developed by gradual modification what is commonly known as the Anton
Piller order. He added that considerable assistance is to be had in that regard
by looking at the manner in which courts have dealt with statutory provisions
of the kind that are now in issue in other legislation, and that such a ‘body of
rules’ has already started to develop. In my view that approaches the matter
the wrong way round.

[73] The example that the learned judge used of an Anton Piller order
highlights the defect of that approach. The Anton Piller order is a remedy that
the courts have created in the exercise of their inherent powers. It is to be
expected in those circumstances that the courts have fashioned a ‘body of
rules’ determining when and in what form such an order may be issued. But
that is not what we are concerned with in this case. We are concerned with
warrants that are issued under statutory powers. It is the statute that must
dictate what is required for a warrant to be valid and not the warrant that must
dictate to the statute.

[74] Whether or not a warrant is defective depends upon whether or not it
meets the requirements of the statute and that is in turn a matter for
construction of the statute. It would be quite wrong for courts to devise what
they consider to be a satisfactory form of warrant and then to test the validity
of a particular warrant against that self-devised template. And while decisions
in other cases will sometimes be helpful in deciding whether a warrant meets
the criteria demanded by a particular statute at other times they will not be.
Statutes that allow for search and seizure are not all the same. Nor do I think
that decisions from foreign jurisdictions need to be slavishly adopted least of
all without careful consideration of the context within which they were decided.

[75] The proper starting point, in my view, is not with pre-conceived ideas of
what a warrant must contain, whether drawn from other cases or otherwise,
but rather with construing the particular authorising statute to see what its
criteria are. And where the legislature, in a constitutionally valid law, has
authorised the performance of an act if certain conditions are met, others
cannot simply be added.

[76] But there are two criteria for validity that will indeed apply to all
warrants for search and seizure on account of their nature alone. A warrant is
no more than a written authority to perform an act that would otherwise be
unlawful.  Like any other written authority it must obviously be intelligible
(‘capable of being understood’)1 for it must be possible to determine with
certainty the scope of its authority. A warrant must also authorise no more
than is permitted by its authorising statute.  If it purports to authorise what it is
not permitted to authorise the warrant will be invalid at least to the extent of
the excess. (It might be wholly invalid if the good cannot properly be severed
from the bad.)

[77] Those criteria for the validity of a warrant were recently restated by this
court in Powell.2 The form in which it was expressed (a warrant must be
intelligible to ‘searcher and searched’) was taken by counsel for the
respondents to mean that a warrant must necessarily contain all the
information that is required to identify what may and what may not be
searched for and seized without travelling outside the warrant. That is not
what was said in Powell and the language that was used does not purport to
do so. Whether that is required for a warrant to be valid is a question that
goes to its necessary content rather than to its ‘intelligibility’ and was not
considered or even discussed in Powell.  But it has taken up most of the
argument in this matter and I will return to it later in this judgment.

[78] Apart from those two generally applicable criteria for the validity of a

1 Shorter Oxford English Dictionary.
2 Powell NO v Van der Merwe NO 2005 (5) SA 62 (SCA) para 59.

warrant I do not think there are others that are material to this case. If there
are other requirements for the validity of the warrants that are now in issue
they must be found in the statute itself, whether expressly or by necessary
implication, if they are to be found at all.

[79] A statute must generally be construed in accordance with the ordinary
meaning of its language viewed within its context (which includes the purpose
that the statute sets out to achieve). In this case there has been no
suggestion that the powers that are conferred by the authorising statute are
unconstitutional and thus invalid. Nor was that suggested when the
Constitutional Court scrutinised the section in Hyundai Motor Corporation.3
Some of the submissions that were made before us drew freely on what were
said to be constitutional imperatives that justify the ordinary language being
rewritten to a greater or lesser degree but none of those submissions paid any
attention to the permissive provisions of s 36 of the Bill of Rights. That section
permits the legislature to make inroads upon protected rights (which the
present statutory provision does) if certain requirements are met. There has
been no suggestion that the inroads that are made by the present statute
when construed in its ordinary meaning are not consistent with the provisions
of s 36 and there is no reason then to give it another meaning.

[80] The clear purpose of the search and seizure section that is now in
issue is to afford a tool to the Directorate of Special Operations (the
Directorate) to perform its statutory functions. The Directorate was established
in the office of the National Director of Public Prosecutions (NDPP) by s 7(1)
of the National Prosecuting Authority Act of 1998. One of its functions is to
investigate and prosecute the commission of ‘specified offences’, which
include certain offences ‘of a serious and complicated nature.’4 (Nothing turns
on what offences that term encompasses and for convenience I will call them
simply ‘offences’.)

[81] The general scheme of the Directorate’s investigating powers was

3 Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: in re Hyundai Motor
Distributorsv (Pty) Ltd v Smit N.O. 2001 (1) SA 545 (CC) para 40.
4 Powell, above, para 6.

analysed by the Constitutional Court in Hyundai Motor Corporation, and again
by this court in Powell, and I need only summarise it. The Act envisages that
an investigation might be conducted in either of two forms. The Investigating
Director may conduct a full investigation (in Powell it was called a plenary
investigation and I will use that term) if he or she has reason to suspect that
an offence has been or is being committed.5 (A delegate may be appointed to
do so on his or her behalf and where appropriate I will call the Investigating
Director and his or her delegate interchangeably the ‘investigator’). If the
Investigating Director considers it necessary to hear evidence in order to
establish whether there are reasonable grounds to conduct a plenary
investigation he or she may also hold a preparatory investigation.6

[82] The statute gives extensive investigatory powers to an investigator
(whether in a preparatory or a plenary investigation). He or she may summon
any person who is believed to be able to furnish any information on the
subject of the investigation, or to have in his or her possession or under his or
her control any book, document or other object relating to that subject, to be
questioned and to produce the item, to question the person concerned, and to
retain for further examination or safe custody any such item.7 An investigator
also has wide powers of search and seizure. Subject in each case to a caveat
that I will come to ss 29(1) and 29(9) authorise an investigator to enter any
premises on or in which anything connected with that investigation is or is
suspected to be and then to –
‘(a)
inspect and search those premises, and there make such enquiries as he or she may
deem necessary;
(b)
examine any object found on or in the premises which has a bearing or might have a
bearing on the investigation in question, and request from the owner or person in
charge of the premises or from any person in whose possession or charge that object
is, information regarding that object;
(c)
make copies of or take extracts from any book or document found on or in the
premises which has a bearing or might have a bearing on the investigation in
question, and request from any person suspected of having the necessary
information, an explanation of any entry therein;

5  Section 28(1).
6  Section 28(13).
7  Section 28(6) read with s 28(14).

(d)
seize, against the issue of a receipt, anything on or in the premises which has a
bearing or might have a bearing on the investigation in question, or if he or she
wishes to retain it for further examination or for safe custody…’

[83] Extensive as those powers of search and seizure are I do not find it
surprising that they are given. It can be expected that at the time an
investigation commences (whether it be preparatory or plenary) an
investigator will have little or no knowledge of when or where or how or by
whom the suspected offence was committed. For an investigation may be
initiated on no more than suspicion, and suspicion that an offence has been or
is being committed is quite capable of existing without details of that kind
being known. It is also unlikely that an investigator will know, without further
enquiry, what documents or books or objects exist that might have a bearing
on the investigation. How else is an investigator then to discover whether an
offence has been or is being committed, and if so when, and where, and by
whom, and in what manner it was or is being committed, and how else is he
or she to discover what evidence there is to substantiate those conclusions,
other than to search for and examine objects and documents that might reveal
those facts?  I do not think that complex criminal conduct, which is the kind of
conduct that the directorate was established to investigate, can be expected
to be uncovered by relying only on information and material that is
volunteered.

[84] In some circumstances an investigator may enter premises and
perform all the acts listed in s 29(1) without a warrant.8 Where those
circumstances exist an investigator may thus search the premises and
examine any object found on or in the premises, make copies of or take
extracts from any book or document found on or in the premises, and seize
anything on or in the premises, if the item concerned has or might have a
bearing on the investigation that he or she is conducting. Before entering the

8 (10)(a) The Investigating Director or any person referred to in section 7(4)(a) may without a warrant enter upon any
premises and perform the acts referred to in subsection (1) –
(i)
…
(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.

premises and performing those acts the investigator need only identify himself
or herself to the owner or the person in control of the premises. The
investigator need not inform the person concerned of the nature of the
investigation, nor provide any information relating to the investigation, nor
identify in any way to the person in charge of the premises the material that is
being sought.9

[85] Where the circumstances referred to in s 29(10) do not prevail those
powers may be exercised if that is permitted by a judicial warrant (and only if it
is so permitted). Section 29(4) provides that in those circumstances the
premises referred to in subsection (1) may only be entered, and the acts
referred to in that subsection may only be performed, ‘by virtue of a warrant’10
issued in chambers by a magistrate or a regional magistrate or a judge.

[86] The function of a warrant, as it is expressed in the language of the
section, is to permit an investigator to perform the acts that are authorised by
s 29(1). It functions as what the Divisional Court in England (approved by the
House of Lords)11 described as ‘the key to the opening of the door to a power
that is granted by [the authorising statute)’.12 While it may permit an
investigator to perform all the acts that are authorised by s 29(1) that must
necessarily include the power to permit an investigator to perform only one or
more of those acts or to perform one or more of them only to a limited extent.

[87] Such a warrant may be issued (s 29(5))
‘if it appears to the magistrate, regional magistrate or judge from information on oath or
affirmation, stating -
(a)
the nature of the investigation in terms of section 28;
(b)
that there exists a reasonable suspicion that an offence, which might be a specified
offence, has been or is being committed, or that an attempt was or had been made to
commit such an offence; and
(c)
the need, in regard to the investigation, for a search and seizure in terms of this

9 As in the case of a search and seizure under warrant, it must be conducted only with ‘strict regard to decency and
order, including a person’s right to, respect for and the protection of his or her dignity, the right of a person to freedom
and security, and the right of a person to his or her personal privacy’ (s 29(2)).
10 The ordinary meaning of ‘by virtue of’, according to the Shorter Oxford Dictionary, is ‘by the authority of, in reliance
upon, in consequence of, because’
11 Inland Revenue Commissioners v Rossminster Ltd (On appeal from Regina v Inland Revenue Commissioners, Ex
parte Rossminster Ltd) [1980] AC 952 (HL).
12 At p. 961G.

section,
that there are reasonable grounds for believing that anything referred to in subsection (1) is
on or in such premises or suspected to be on or in such premises.’

[88] The warrants that are now in issue (I exclude for the moment the
warrant to search the premises of Mr Hulley) are all in the same terms (but for
the premises that they describe). Attached to the body of each warrant are
two annexures. Annexure A lists, in 23 paragraphs, various species of
documentation that is to be searched for and seized. Annexure B relates to
electronic forms in which that material might be stored. The scope of the
annexures is circumscribed by a clause in the body of each warrant that limits
the material to that which ‘has a bearing or might have a bearing on the
investigation in question’. The offences that are being investigated, according
to the body of each warrant, are ‘corruption in contravention of Act 94 of 1992,
fraud, money-laundering in contravention of Act 121 of 1998, the commission
of tax offences in contravention of Act 58 of 1962’ and any attempt to commit
such an offence or offences.

[89] A search and seizure on the terms that are described in the warrants
would have been permitted without a warrant in the circumstances that are
referred to in s 29(10). The various species of documentation and material
that are described in the warrants, which are all capable of identification, are
limited to documents and material that has or might have a bearing on the
investigation that is in progress, and they all fall within the terms of s 29(1).
That search and seizure would have been permitted by s 29(10)
notwithstanding that the person in charge of the premises (‘the searched’)
was unable to identify for himself or herself the material that was capable of
being seized. Indeed, it would have been permitted without information of any
kind relating to the investigation being provided to the person concerned.

[90] Yet it is contended in this case that a search and seizure on those
terms is not permitted under a warrant unless the ‘searched’ is provided with
information of that kind in the warrant (precisely what information was said to
be required has never been made altogether clear). I would find it remarkable

if an investigator was capable of doing without a warrant what he or she is not
capable of doing under the judicial control of a warrant. I find nothing in the
statute to support that conclusion.  Whether or not s 29(10) is constitutionally
invalid, as my colleague has suggested it might be, does not seem to me to
be relevant to construing the ordinary meaning of the statute. It might be that
that section, and consequently the section that is now in issue, on their
ordinary meaning, are indeed invalid (I do not suggest that they are) but that
is not a matter that we have been called upon to decide.

[91] The learned judge in the court below said (relying on the decision in
Powell) that it is ‘now authoritatively established’ that in order to be valid a
warrant must, amongst other things, ‘set out the “specified offences”
suspected of having been committed or being committed’. He went on to say
that that required that ‘the person to be searched must be given information
as to approximately when the suspected offences have been committed and
who is suspected of having committed them.’ In that respect, so the court
held, the warrants were ‘inappropriately vague’ and they were defective on
that ground alone.

[92] I do not understand the learned judge to have meant that as a matter of
law a warrant must ‘set out the offences’ that are suspected. Certainly that
was not established by Powell and the statute also does not require it. I
understand the learned judge to have meant only that where a warrant allows
for the seizure of material that has or might have a bearing on ‘the
investigation’ (as the warrant did in Powell and as they do in this case) the
failure to ‘set out the offences’ that are under investigation will necessarily
mean that the scope of the authority is vague.

[93] I do not think that that, either, was established by Powell. In Powell the
warrant, construed in its particular context, allowed for the seizure of material
that exceeded what was permitted by s 29(1) (which confines itself to material
that has or might have a bearing on an investigation, by which is meant an
investigation into the suspected commission of offences) and it was for that
reason that the warrant was defective. There is no dispute that the

investigation in the present case (and accordingly the warrants) is confined to
the investigation of suspected offences. The point that is made in this case is
one that was not dealt with in Powell (in view of the construction that was
placed on the warrant it was not necessary to do so) and I do not think that
case is of assistance.

[94] I think that the finding of the court below needs to be clarified. The
learned judge said that the failure to specify what was under investigation
meant that the terms of the warrant were vague. I do not think that is correct.
Merely because one needs to look outside a written instrument to establish
what it relates to in concrete terms does not mean that the instrument is
vague. As pointed out by Watermeyer CJ in Rottcher’s Saw Mills13 (in relation
to a written contract but it applies as much to a warrant) it is always
necessary, in one way or another, to look outside a written instrument to
translate the ‘abstraction’ that it expresses to the ‘concrete thing in the
material world’. If the outside source that must be looked to for its
interpretation establishes with certainty what the instrument means then the
instrument is not vague at all.

[95] In this case the subject of the investigation is indeed capable of being
established with certainty. The investigator, with intimate knowledge of what
the investigation entails, is quite capable of establishing with certainty what
may or may not be seized. A court that might be called upon to decide
whether the authority of the warrant has been exceeded will also be capable
of doing so with certainty upon evidence of what the investigation entails. It is
not that the warrant is vague. I think that what the court below had in mind
was rather that they contain insufficient information to enable the ‘searched’ to
identify from the terms of the warrant alone what may and what may not be
seized (to relate the ‘abstract’ to the ‘concrete thing’). The question is whether
a warrant must indeed place the ‘searched’ in that position in order to be valid.

[96] My colleague bases his support for the finding of the court below on
what was said by Lord Denning in Rossminster (albeit that he was overruled

13 1948 (1) SA 983 (A) 990-991.

by the House of Lords)14 and in certain cases decided in New Zealand. I am
sure that statements to the same effect are to be found in other cases as well
because there might indeed be statutes that require that of a warrant. But as I
observed at the outset of this judgment I think that is the wrong way to
approach the enquiry. The enquiry is whether the statute in this case requires
that of a warrant. Certainly it does not do so expressly and my colleague has
pointed to nothing in the statute that requires it by necessary implication.

[97] If the necessity for embodying information of that kind in the warrant is
to place the ‘searched’ in a position to identify what may and what may not be
seized (no other purpose has been suggested) then I fail to see how that is
achieved by informing him or her ‘approximately when and by whom’ the
offence is suspected to have been committed. That, by itself, will be
altogether insufficient for that purpose. Why the ‘searched’ need be told only
‘approximately’ when the offences are suspected to have been committed,
and why he or she need not also be told where and in what manner it is
suspected that they were committed (though even that additional information
will not be enough to identify all material that has or might have a bearing on
the investigation) is unexplained. In endorsing its finding my colleague says
only that the investigation was ‘stated in such general terms that it was not
possible to ascertain what it covered’ without saying what would have
sufficed. Assertions by the respondents’ counsel as to what was required are
equally unhelpful. For in each case one is left asking why some features are
selected for disclosure in preference to others, and why any of those features
are required at all when none by themselves (or even in combination) will
suffice for the intended purpose. It seems to me to be all rather random and
arbitrary.

[98] In truth it will not be possible, in any practical terms, to embody in a
warrant everything that is required to identify all material that has or might
have a bearing on an investigation that is of any complexity. And if it is not
possible to do so then I see no reason why a statute should require a warrant
to make what is no more than an empty gesture in that direction and none has

14  Citation above, fn. 11.

been suggested.

[99] Section 29(4) allows for all (or any) of the acts set out in s 29(1) to be
performed (including the seizure of ‘anything that has or might have a bearing
on the investigation’) if that is permitted by a warrant and I think it follows that
a warrant may permit that in terms (which is what the warrants in the present
case effectively do). There is nothing in the express language of s 29 to
suggest that those acts may be permitted by a warrant only if a person who
might be in charge of the premises (there may be no such person at all) is first
placed in a position to identify then and there what may and what may not be
seized. Indeed, nothing in the express language of the section suggests that a
person who is in charge of the premises must be provided with any
information relating to the investigation at all. The court below and my
colleague have also not pointed to anything in the statute that suggests by
necessary implication that that is required. On the contrary, in my view the
section, construed in its context, necessarily implies the contrary, for at least
five reasons.

[100] First, if that is indeed a requirement of the statute, then the information
that must be conveyed must surely be capable of being circumscribed with
some certainty, rather than by mere random assertion. Secondly, as I alluded
to earlier, I do not think it would be possible, in an investigation of any
complexity, to express in a warrant all the information that would be
necessary for that purpose. One or more features of the conduct that
constitutes the suspected offence will not serve that purpose, nor, indeed, any
rational purpose at all, and I do not think that the section requires a gesture.
Thirdly, to require the disclosure of the full nature of an investigation, such
that all material that has a bearing is capable of being identified by those who
might be implicated, seems to me to have the real potential to undermine the
investigation. Fourthly, the person to whom the warrant is presented is not
called upon to assist in identifying the material or to perform any other act. It is
difficult to see in the circumstances why it should be essential that he or she is
able to identify then and there the material that is subject to seizure. Any
contest as to what may be seized under the warrant must necessarily be

resolved by a court, which is capable of determining that issue upon evidence
of what the investigation entails.  And finally, to return to a point that I made
earlier, if a search and seizure in such terms is permitted without disclosure
when it occurs without a warrant, I see no reason why the legislature should
have required it when it occurs under the control of a warrant. Indeed, I think
that would be an absurd result, which the section must be construed to avoid.

[101] The warrants in the present case express intelligibly and with certainty
the scope of the authority that they confer. They permit a search for and
seizure of all the species of material referred to in the annexures (all of which
is capable of being identified) if the material has or might have a bearing on
the investigation in respect of which they were issued. What that investigation
entails, and whether the material has or might have a bearing upon it, are all
objective facts that are capable of being ascertained. A search and seizure in
those terms also does not extend beyond what is permitted by s 29(1). I see
nothing more that is required of the warrants by the statute.

[102] I should add that the learned judge in the court below also held that
para 23 of annexure A to each of the warrants (he referred to it as the ‘catch-
all’ clause) was so wide in its terms that its presence alone was sufficient to
invalidate the warrants but I do not think that finding takes the matter further.
In my view that clause does not differ materially from the other clauses of the
annexure. The material that it encompasses is similarly confined to material
that has or might have a bearing on the investigation and it all falls within the
provisions of s 29(1).

[103] The court below also held that Ngoepe JP ought not to have issued the
warrants because the information placed before him did not demonstrate the
need for the search and seizure as required by s 29(5)(c). That was principally
because, said the learned judge, the information placed before Ngoepe JP
‘[did] not make out a case that the [material] cannot be obtained by invoking
the provisions of section 28’.15 (That section authorises an investigator to
summon a person to produce documents.)  The learned judge seems also to

15 That is the section that allows an investigator to summon persons to answer questions and to produce documents.

have been of the view that the investigation could make do without all the
material that was sought but I do not think that a judicial officer is entitled to
refuse a warrant for that reason. How an investigation is to be conducted falls
within the prerogative of the investigator. If material has or might have a
bearing on an investigation the investigator is entitled to have access to the
material and I do not think that it is open to a court to say that he or she may
have access to only some of it but not more. The section permits a judicial
officer to refuse a warrant only if the need is not shown to resort to search and
seizure for that purpose.

[104] In my view the court below set the bar far too high in requiring it to be
shown that the material could not be obtained by invoking the provisions of
section 28. I do not see how an investigator could ever show that other than
by first asking for the material to be produced and having the request refused.
If that were to be required before a warrant may be issued it would altogether
undermine an investigation. I think that subsection (c) requires it to be shown
only that the material cannot be expected in the ordinary course to be
produced voluntarily. That will almost always be the case when it is being
sought from a person who it might incriminate, as in the present case. I do not
think that finding of the court below was correct.

[105] The warrants relating to the premises of Mr Hulley (who was Mr
Zuma’s attorney) were framed in the same general terms as the other
warrants but the annexures were different. Annexure A had two paragraphs.
The first paragraph described a collection of specific documentation that had
been delivered to Mr Hulley by the attorney for Mr Zuma’s former financial
adviser. There is no difficulty identifying that material. When the warrant was
executed at Mr Hulley’s office he immediately pointed to two sealed boxes
that contained the material. There is also no suggestion that that material falls
outside the ambit of s 29(1). The second paragraph described various species
of documentation, much as the annexures to the other warrants did, but again
confined to material that has or might have a bearing on the investigation. No
attempt was made to execute that portion of the warrant but in any event I do
not think it was defective, for the reasons I have already given. Clearly it could

not be said that Mr Hulley, if he were free to act by his own accord, might not
have been willing to produce the material voluntarily, but it must be borne in
mind that he would not have been entitled to do so other than on the
instructions of his client. In the circumstances the need for search and seizure
in relation to that material was similarly established.

[106] Lastly to the question of privilege. Section 29(11) creates a mechanism
for protecting the privilege that might be claimed for information contained in
any material found on premises. It was submitted on behalf of the
respondents that a warrant that does not contain at least a reference to that
section is defective. Apart from asserting that proposition counsel provided no
convincing explanation why that is a necessary implication of the statute and
in my view the submission has no merit.

[107] The learned judge in the court below expressed himself on the
importance of protecting legal privilege when executing a warrant and with
much of what he said I agree but I do not understand the learned judge to
have held that the execution of the warrant at the premises of Mr Hulley (or
the execution of the warrants at other premises) was unlawful for any failure in
that regard nor do I think it was. The warrant was presented to Mr Hulley who
immediately identified two boxes containing the material covered by the first
paragraph of the annexure and they were removed. No search took place at
his premises and no further material was seized. There was no reason for the
appellants to have thought that the boxes might contain privileged information.
The boxes were expected to contain documents that emanated from Mr
Zuma’s former financial adviser and not from an attorney. The day after the
material was seized Mr Hulley wrote to the appellants asserting that ‘a certain
privilege’ might attach to some of the documents, but he has never elaborated
upon what that ‘certain privilege’ might be. There can be no doubt that that
was not a claim that information contained in the documents was protected
from disclosure by legal professional privilege for otherwise Mr Hulley would
have said so. Even now there is no claim that any of the information was
privileged. In the circumstances I do not think it has been shown that any
special precautions to avoid the disclosure of privileged information were

called for when the warrants were executed.

[108] Other matters raised by the respondents in the papers were not
seriously pressed before us and in any event I do not think they have any
merit. I do not think that any of the warrants that are in issue in this appeal
were legally deficient, nor that they were unlawfully executed. In those
circumstances the directorate is entitled to have such access to the material
as is ordinarily permitted by law and the application ought to have been
dismissed.

[109] The appeal is upheld with costs. The order of the court below is set
aside and an order is substituted dismissing the application with costs. In both
cases the costs are to include the costs of two counsel.

________________
R.W. NUGENT
JUDGE OF APPEAL

PONNAN JA )  CONCUR
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 today upheld the appeal brought by the National
Director of Public Prosecutions, the Investigating Directors of three of the directorates
established under the National Prosecuting Authority Act and the Durban Director of
Public Prosecutions against an order made by Mr Justice Hurt in the Durban High
Court setting aside five search warrants issued by the Judge President of the Transvaal
Provincial Division Mr Justice Ngoepe, authorising the search of premises occupied
or formerly occupied by Mr Jacob Zuma and his attorney Mr Michael Hulley.

In his judgment which was concurred in by Appeal Judges Ponnan and Mlambo,
Appeal Judge Nugent held that the warrants under consideration expressed
‘intelligibly and with certainty the scope of the authority that they confer’ and that the
statute under which they were issued required no more.

In a minority judgment concurred in by Appeal Judge Cloete, Appeal Judge Farlam
stated he agreed with Mr Justice Hurt in the Durban High Court that the warrants
were invalid because they did not intelligibly convey the ambit of the search.