Key v The Attorney General, Cape of Good Hope Provincial Division and Another

The applicant was an accused in a pending criminal trial in the Cape of Good Hope Provincial Division arising from the collapse of Tollgate Holdings Ltd and associated companies. In early 1993, approximately two weeks after Tollgate was wound up, representatives of the second respondent conducted searches of the applicant's residence and offices under authority of section 6(1) of the Investigation of Serious Economic Offences Act No 117 of 1991 and seized documents. On 3 February 1994, the applicant was indicted on charges related to Tollgate's affairs. The applicant contended that the case against him was built on documents seized during the searches, consequent witness interviews, and a report prepared by investigative accountants who received the documents under section 7 of the Act. In August 1994, before the trial scheduled for October 1994, the applicant launched urgent motion proceedings challenging the constitutionality of sections 6 and 7 of the Act and seeking to exclude all evidence obtained under those sections. The matter was referred to the Constitutional Court. Significantly, all the searches, seizures, disclosures, and the indictment occurred before the Constitution came into force on 27 April 1994.

• Whether sections 6 and 7 of the Investigation of Serious Economic Offences Act No 117 of 1991 were in conflict with section 13 of the Constitution (right to privacy) and therefore invalid
• Whether evidence obtained pursuant to sections 6 and 7 of the Act, prior to the Constitution coming into force, was inadmissible in criminal proceedings against the applicant
• Whether Chapter 3 of the Constitution operates retrospectively or retroactively to render unlawful conduct that was lawful when performed
• Whether evidence lawfully obtained before the Constitution came into force could be constitutionally excluded from a post-constitutional criminal trial

No order was made in respect of either of the two issues referred. No order was made as to costs. The Court declined to declare sections 6 and 7 unconstitutional or to grant a blanket exclusion of evidence obtained under those provisions. The question of admissibility was left to be determined by the trial judge in the criminal proceedings.

The Constitution does not operate retrospectively or retroactively. Acts that were lawful when performed before the Constitution came into force on 27 April 1994 cannot be rendered unlawful by the subsequent advent of constitutional rights. The applicable law is that which was in force at the time the acts occurred. Evidence lawfully obtained before the Constitution came into force is not automatically rendered inadmissible in subsequent criminal proceedings solely by virtue of the Constitution coming into force. The question of whether admission of such evidence would infringe an accused's right to a fair trial under section 25(3) of the Constitution is a matter to be determined by the trial judge on the facts and circumstances of each case, applying a flexible, contextual approach to fairness. The right to a fair trial embraces substantive fairness and requires courts to give content to notions of basic fairness and justice in accordance with the Constitution.

Kriegler J noted that even if section 6 of the Act (as it previously read) or section 7 were found to infringe fundamental rights in Chapter 3, this would not avail the applicant given the pre-constitutional timing of the conduct. The Court left open the question of whether in exceptional circumstances involving gross injustice abhorrent to constitutional values, it might make an order declaring pre-constitutional acts invalid, but stated this was clearly not such a case. There is nothing inherently unfair in receiving evidence properly obtained through lawful search and seizure. The Court commented that in a democratic criminal justice system there is tension between bringing criminals to book and ensuring justice is done to all, including those suspected of crimes. While human rights bodies and courts work to prevent excessive state zeal, this does not mean sympathy for crime or predilection for technical niceties. The Court noted its inclination to agree with the Park-Ross decision that section 7 of the Act was constitutional, but did not express a firm opinion as it was unnecessary. The Court emphasized that a prominent aim of Chapter 3 was to protect individuals against the state, as evident in various rights provisions.

This is a foundational case on the non-retroactive application of the Constitution. It established that Chapter 3 of the Constitution does not operate retrospectively to render unlawful acts that were lawful when performed prior to 27 April 1994. The case is significant for affirming a flexible, contextual approach to the exclusion of unconstitutionally obtained evidence, rejecting blanket exclusionary rules in favor of case-by-case fairness assessments by trial judges. It reinforced that the right to a fair trial under section 25(3) embraces substantive fairness beyond mere procedural compliance. The case is important for limiting constitutional challenges to pre-constitutional conduct and for defining the scope of constitutional remedies in the transitional period. It also clarified the respective roles of the Constitutional Court and trial courts in determining admissibility of evidence in criminal proceedings.