Investigating Directorate: Serious Economic Offences and Another v Gutman NO

The respondent, Bernard Gutman NO, was the liquidator of Nisec CC, a company that had been awarded a tender by the Cape Provincial Administration for the provision of services relating to social pensions and welfare grants. The tender was cancelled amid allegations of fraud and impropriety, and Nisec CC was subsequently wound up. An investigation into the tender was conducted by the Office/Investigating Directorate for Serious Economic Offences (OSEO/IDSEO). While preparing a civil damages action against various parties, including government officials, the respondent sought access under section 32(1) of the Constitution to documents, witness statements, transcripts, and reports compiled during the criminal investigation. The Investigating Director and the Minister of Justice refused access, relying on section 30 of the National Prosecuting Authority Act 32 of 1998, which preserves secrecy over information obtained during investigations. The respondent brought an application to compel disclosure, which succeeded in the Transvaal High Court. The appellants appealed to the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel. The order of the court a quo was upheld, subject to minor amendments clarifying that access to information may be lawfully limited or denied where justified.

This case is significant for clarifying the relationship between the constitutional right of access to information under section 32 and statutory secrecy provisions in the National Prosecuting Authority Act. It affirms that prosecuting authorities cannot unilaterally limit constitutional rights through assertions of secrecy and that courts retain the primary role in determining whether access may lawfully be restricted. The judgment strengthens constitutional accountability and access to courts, particularly in the context of civil litigation following criminal investigations.