Minister of Safety and Security v Tembop Recovery CC

During 2009, SAPS commenced Project Nemesis to investigate an alleged platinum syndicate. The third and fourth respondents were implicated in possessing and dealing with stolen or illegally obtained precious group metals, particularly platinum. In 2011, police obtained search and seizure warrants and arrest warrants. The third and fourth respondents were arrested and charged under the Prevention and Combating of Corrupt Activities Act 12 of 2004 (POCA) in the Krugersdorp Regional Court on 29 September 2011. The case was postponed several times because the State was not ready to proceed, intending to centralise the matter and indict the accused for contraventions of POCA. On 23 August 2013, the defence successfully objected to a further postponement and the State provisionally withdrew the charges. On 12 February 2014, the respondents launched motion proceedings for the return of all seized items. The State opposed this application but failed to comply with the respondents' notice in terms of rules 35(12) and 35(13) requesting production of documents referred to in the opposing affidavit. The respondents then filed a notice in terms of rule 30A to strike out the appellants' defence. On 11 July 2014, the criminal charges were reinstated. On 18 July 2014, the appellants belatedly filed a rule 6(5)(d)(iii) notice raising points of law without seeking condonation for the delay. The high court (Vorster AJ) dismissed the appellants' application for condonation and struck out the appellants' defence to the main application.

• Whether the high court correctly refused the appellants' application for leave to appeal
• Whether the high court correctly refused condonation for the late filing of the appellants' rule 6(5)(d)(iii) notice
• Whether the high court correctly exercised its discretion in striking out the appellants' defence to the main application for return of seized items while criminal proceedings were pending
• Whether courts should issue civil declaratory orders in matters which are the subject of pending criminal proceedings
• Whether the proper approach under rule 30A(2) is to order compliance with discovery requests before striking out a defence
• What factors a court must consider when balancing interests of justice, policy considerations and parties' rights in interlocutory applications during pending criminal proceedings

1. The application for leave to appeal is granted. 2. The appeal is upheld. 3. Paragraphs 1, 2 and 3 of the high court order of 29 August 2014 dismissing the appellants' application for condonation and striking out the appellants' defence are set aside and substituted with: 1.1 The respondents are ordered to comply with the applicants' notice in terms of rule 35(12) read with rule 35(13) of the Uniform Rules within ten (10) days of this order. 1.2 In the event of the respondents failing to comply, the applicants may apply on the same papers duly amplified to strike out the respondents' defence to the main application. 2. Late filing of the respondents' rule 6(5)(d)(iii) notice is condoned. 3. The respondents are to pay the costs of this application as well as the costs of their application for condonation. 4. Each party to pay their own costs of appeal.

Where an application is made for the return of items seized under a search and seizure warrant, and criminal proceedings are pending or have been reinstituted, the court must consider the interests of justice, policy and public considerations in the exercise of its discretion to grant the order. Courts should be loath to issue civil declaratory orders in matters which are the subject of criminal proceedings. Although there is no absolute bar from adjudicating such issues during interlocutory applications, applications amounting to preliminary litigation pending the outcome of criminal proceedings should not be encouraged as it is the duty of the criminal trial to deal with all issues relating to aspects that will affect the criminal trial. When a court is approached for relief regarding seized items during pending criminal proceedings, it must in the exercise of its discretion have recourse to: (a) the main issues between the parties; (b) return of items seized in connection with a criminal trial; (c) the reason why the documents cannot be furnished at that stage; (d) the likely impact the release of the documents would have on the pending trial; and (e) the prejudice that may be suffered by either party if the order is refused or granted. Under rule 30A(2), before striking out a defence for non-compliance with discovery requests, the court should first order compliance and only consider striking out the defence on further application if there is continued non-compliance. Rule 35(12) does not require a court directive before a party can request production of documents referred to in affidavits - the mere reference of a document in an affidavit entitles the other party to seek or request that the documents be produced.

The Court observed that fairness is not a one-way street conferring an unlimited right on an accused to demand the most favourable possible treatment, but also requires fairness to the public as represented by the State. The fair trial right does not mean a predilection for technical niceties and ingenious legal stratagems, or to encourage preliminary litigation - a pervasive feature of white collar crime cases in South Africa. Courts should within the confines of fairness actively discourage preliminary litigation. The Court noted that persons facing serious charges and especially minimum sentences have little inclination to cooperate in a process that may lead to their conviction and any new procedure can offer opportunities capable of exploitation to obstruct and delay. The Court also commented that in so far as Stevens v Magistrate Swart & others 2014 (2) SA 150 (GSJ) held that the provisions of rule 35(12) read with rule 35(13) were not applicable to motion proceedings until the court has issued an order directing it to do so, it was wrongly decided. The Court noted that while the appellants' conduct was less than satisfactory and dilatory, this did not mean they should be mulcted with a punitive costs order on an attorney and own client scale.

This judgment is significant in South African civil and criminal procedure for establishing important principles regarding the intersection of civil applications and pending criminal proceedings. It clarifies that courts should be loath to issue civil declaratory orders in matters which are the subject of criminal proceedings, and preliminary litigation should be actively discouraged. The judgment provides guidance on the proper exercise of judicial discretion under rule 30A(2) of the Uniform Rules, establishing that courts should order compliance with discovery requests before resorting to striking out a defence. It sets out the relevant factors courts must consider when balancing policy considerations, public interest, interests of justice and parties' rights in interlocutory applications during pending criminal proceedings. The case reinforces that the duty to examine the lawfulness of search and seizure resides with the trial court, and civil courts should exercise their discretion to interfere sparingly and only in exceptional circumstances. It also clarifies that rule 35(12) does not require a court directive before a party can request production of documents referred to in affidavits, correcting the erroneous decision in Stevens v Magistrate Swart.