National Director of Public Prosecutions and Another v Mahomed

The National Director of Public Prosecutions (NDPP) and the Investigating Director of the Directorate of Special Operations obtained search and seizure warrants under s 29 of the National Prosecuting Authority Act 32 of 1998. The warrants authorised searches at the home and offices of the respondent, Ms Juleka Mahomed, a practising attorney and former attorney of Mr Jacob Zuma, in connection with an investigation into alleged offences involving Mr Zuma and the Thint/Thales companies. Large quantities of documents and electronic material were seized. Ms Mahomed challenged the validity of the warrants. The High Court set the warrants aside as invalid and ordered the immediate return of all seized material. On appeal, the NDPP conceded the invalidity of the warrants but sought a variation of the order to allow preservation, under seal, of copies of the seized material pending possible future proceedings, particularly to maintain a record of what had been seized in light of claims of legal professional privilege.

The appeal was dismissed with costs, but the High Court order was varied to authorise the registrar to retain, under seal, copies of the seized documents and computer images for limited preservation purposes, pending notification, conclusion of any related proceedings, or abandonment of prosecution, subject to strict safeguards.

This case is a leading authority on the consequences of invalid search and seizure warrants in South African law. It clarifies that unlawfully seized material must generally be returned and that courts do not have a general power to preserve such material for investigative or prosecutorial advantage. At the same time, it recognises a narrowly circumscribed power to order preservation of evidence to ensure the proper administration of justice, particularly in disputes concerning legal professional privilege and fair trial rights.