Savoi v National Prosecuting Authority [2023] ZACC 38
CONSTITUTION – Fair public hearing – In camera proceedings
Applicants seeking permanent stay of prosecution – Contending documents seized by State in violation of legal professional privilege – Seeking to have contested documents considered in camera – High Court finding that applicants failed to prove claim of privilege – Appropriate balance to be struck between privilege and open justice – In camera consideration of documents alleged to be privileged strikes that balance – High Court order replaced with one setting out procedure for in camera consideration of contested documents – Constitution, s 34 – Superior Courts Act 10 of 2013, s 32.
Facts: Mr Savoi, Intaka Holdings and Mr Praderi (applicants) are pursuing an application for a permanent stay of prosecution before the High Court. They are charged with bribery, racketeering, money laundering, fraud and corruption in relation to an alleged criminal enterprise involving the supply of water purification plants and oxygen self-generating units to provincial health departments. The basis of the permanent stay application is that 69 documents/categories of documents were seized from them by the State, allegedly in violation of legal professional/litigation privilege. The applicants contend that the extent of this violation of privilege will have the result that prosecuting them would tarnish the administration of justice.
Appeal: In order to prevent further encroachment on their right to legal professional privilege, the applicants brought an interlocutory application in the High Court in terms of section 32 of the Superior Courts Act 10 of 2013 requesting that it employ a mechanism to consider the contested documents in camera. The National Prosecuting Authority (NPA) and the police opposed the interlocutory application. They dispute that the contested documents are in fact privileged. The present application is for leave to appeal against the High Court’s decision which found against them in the interlocutory application and which found that the applicants had failed to prove their claim of legal professional privilege.
Discussion: That the High Court also held that an order made by Nkosi AJ, which prevents the State from accessing certain documents pending the criminal court’s determination of the documents’ status, had the effect of precluding any court other than the criminal court from making a decision in respect of the documents listed in that order; whether a party seeking a deviation from the open justice principle on the basis that documents required for the determination of a case are subject to legal professional privilege must first establish such privilege; whether an in camera hearing entails permanent secrecy of the proceedings; and that the NPA and the police say that the privilege question in the criminal proceedings and the permanent stay proceedings are not distinct and that the applicants have other remedies available to them because the criminal court can determine the privilege of the documents.
Findings: An appropriate balance must be struck between privilege and open justice. In camera consideration of the documents alleged to be privileged strikes that balance. Where a court takes a judicial peek, the other side is not able to view the contested documents. Conversely, in camera review proceedings allow representatives of the respondents to view the contested documents under conditions of confidentiality, which is arguably less drastic than a judicial peek. In camera review, however, is still a deviation from general principles in the administration of justice; it departs from the adversarial nature of judicial proceedings and it cloaks the court’s proceedings in secrecy. It is therefore a discretion that must be exercised judiciously – the power should only be invoked by a court when it is in the interests of justice to do so.
Order: The order of High Court is replaced with an order granting the interlocutory application. The replacement order sets out the procedure for considering the contested documents as follows:
(i) The portion of the proceedings that relate to determining the status of the contested documents is to be held in camera.
(ii) The court determining the status of the contested documents must keep a record of the proceedings. If it is determined that a particular contested document is not privileged, the part of the record which pertains to that document shall become public.
(iii) Only the representatives of the respondents who sign the confidentiality agreement attached to this order are permitted to appear in court during those proceedings.
(iv) Any person present in court during the in camera proceedings is not permitted to be involved in the subsequent investigation or prosecution of the applicants. However, if all the contested documents are not privileged, this prohibition will fall away.
THERON J (unanimous)
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Bisschoff NO obo Reyners v PRASA [2023] ZASCA 160
CIVIL PROCEDURE – Prescription – Brain injury
Plaintiff suffering cognitive difficulties after fall from train – PRASA raising special plea of prescription – Expert testimony that injury led to permanent loss of cognitive abilities and executive functioning and that plaintiff could not instruct attorney or manage affairs – Plaintiff under disability or impediment since incident – Prescription began to run from date of appointment of curator ad litem – Prescription Act 68 of 1968, ss 12(3) and 13(1)(a).
Facts: Mr Reyners fell from a moving train operated by PRASA in 2001. He sustained head injuries and underwent surgery on his head. The traumatic brain damage suffered by Mr Reyners resulted in temporal lobe epilepsy, memory loss, aggression, a change of personality, and permanent loss of cognitive abilities and executive functioning. In 2010, more than three years after the train incident, Mr Reyners instructed his current attorneys to file a claim against PRASA. In 2013 the curator ad litem was appointed to help Mr Reyners with his legal affairs and in the same year, more than three years after instructing his attorneys, the curator issued a summons against PRASA.
Application: At the trial, PRASA argued a special plea that Mr Reyner’s claim had prescribed as prescription had commenced from the date of the incident in accordance with section 12(1) of the Prescription Act 68 of 1968. The trial court dismissed the special plea of prescription and ordered PRASA to pay the curator damages of around R3 million. PRASA had conceded the merits. The trial court held that the prescription period did not start to run while Mr Reyners was under a disability or impairment. The majority of the full court upheld the appeal and substituted the order with one where the special plea of prescription succeeded and dismissed the curator’s claim.
Discussion: That sections 12(3) and 13(1)(a) of the Prescription Act are relevant as to when prescription begins to run and when completion of prescription will be delayed. The crucial question is whether, at the time he was discharged from the hospital after falling from the moving train, he had knowledge of the debtor’s identity and the facts which related to the claim or if he could have reasonably acquired that knowledge. The clinical psychologist testified that Mr Reyners’ medical condition originated from the fall in 2001 and that as of that date he was incapable of handling his affairs and needed the assistance of both a curator ad litem and a curator bonis to assist him. Dr Le Fèvre testified on the impact of the traumatic brain injury on Mr Reyners. He stated that the injury, which occurred when Mr Reyners fell from the train, led to a permanent loss of cognitive abilities and executive functioning. As a result, Mr Reyners could not instruct his attorney or manage his affairs.
Findings: The majority assumed, in the face of uncontested expert evidence to the contrary, that Mr Reyners had the same cognitive abilities as a person without brain damage or disability. In doing so, the majority failed to acknowledge that while Mr Reyners had some residual capacity to engage with society, his complex attention and memory deficits made it difficult for him to utilise his intellectual ability effectively. Mr Reyners’ capability to continue with some form of life after the fall could not possibly mean that he must have obtained knowledge of all the material facts from which the debt arose or which he needed in order to institute an action. Mr Reyners has been under a disability or impediment since the incident. Even though a curator was appointed approximately 12 years later, it was clear that Mr Reyners needed a curator after the incident. Prescription began to run from the date of the appointment of the curator ad litem.
Order: The appeal is upheld with costs. The order of the full court is replaced with one dismissing the appeal.
MATOJANE JA (MBATHA JA, MABINDLA-BOQWANA JA, NHLANGULELA AJA and KATHREE-SETILOANE AJA concurring)
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Ad Hoc Central Authority RSA v Koch NO [2023] ZACC 37
FAMILY – Children – Abduction
Hague Convention on Civil Aspects of International Child Abduction – Interpretation of Article 13(b) – Determination of threshold for “grave risk” of psychological harm or an intolerable situation – Father seeking return of child to UK – Mother having passed away and child living with aunt in SA – Aunt has not proved Article 13(b) defence – Court not satisfied that in UK child would be faced with the risk of grave psychological and physical harm or that she may otherwise be placed in intolerable situation – Adequate support services and systems in place in UK – Delay occasioned by litigation cannot be permitted to impede objectives of Convention – Child to be returned to UK.
Facts: E was born in the United Kingdom (UK) to parents who were both British nationals though the mother was originally from South Africa (SA). Her parents were not married. The mother was diagnosed with cancer and the family came to SA for the mother to consult with doctors. After she had undergone surgery, the mother was unable to return to the UK with E and her father as they intended, so E’s father left as planned, leaving E behind with her mother. The relationship between the mother and father soured and the father approached the UK Central Authority and sought their assistance in securing the return of E to the UK. E’s mother died after the commencement of the proceedings for E’s return to the UK and E is six years old and lives with her maternal aunt in SA.
Appeal: The High Court ordered the return of E to the UK and made appropriate orders aimed at ensuring E’s transition into the care of her father. The Supreme Court of Appeal found that the High Court was not obliged to order the return of E to the UK as the mother and E’s aunt had successfully established that her return would expose her to the risk of psychological harm or otherwise place her in an intolerable situation as contemplated in Article 13(b) of the Hague Convention on the Civil Aspects of International Child Abduction. It upheld the appeal with costs. The order of the High Court was replaced with an order dismissing the Convention application with costs.
Discussion: Article 13 of the Convention and the exception to the mandatory return of a child where there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; the reports of Professor Berg who is a child and adolescent psychiatrist and Ms Pettigrew who is an educational psychologist; that the father’s position as the only surviving parent receives very little attention in the judgment of the Supreme Court of Appeal and the first judgment (Van Zyl AJ); that her father has accommodation available for her and he appears to have gone to some lengths to create a happy living space for her; that the first judgment impermissibly overemphasises E’s attachment to the aunt; and that accepting the delay as a valid cause of E becoming settled in SA would mean that anyone with an interest in wrongfully retaining a child in another country can draw out litigation proceedings to enable the child to settle and so escape the reach of the Convention.
Findings: On a consideration of the totality of the evidence, the aunt has not proved the Article 13(b) defence. The court is not satisfied on a balance of probabilities that, in the event that E is ordered to be returned to her state of habitual residence, she would be faced with the risk of grave psychological and physical harm or that she may otherwise be placed in an intolerable situation. Moreover, the aunt failed to establish that the UK is not able to mitigate any of the risks that she has raised or alluded to by Professor Berg and Ms Pettigrew should E be returned to the UK. On the evidence, there are adequate support services and systems in place in the UK. These would mitigate the impact of E’s return to the UK. The delay occasioned by the litigation cannot be permitted to impede the objectives of the Convention.
Order: The appeal is upheld. The orders of the Supreme Court of Appeal and the High Court are set aside. E (the minor child) shall be returned to the jurisdiction of the Central Authority for England and Wales in the United Kingdom.
MAJIEDT J (majority) at [146]-[220]
VAN ZYL AJ (dissenting) at [1]-[145]
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