National Director of Public Prosecutions v Mahomed

On 12 August 2005, Ngoepe JP issued two search and seizure warrants in terms of section 29 of the National Prosecuting Authority Act 32 of 1998, authorizing searches at the respondent's (Juleka Mahomed, a practicing attorney) residence and offices in Johannesburg. The warrants related to an investigation by the Directorate of Special Operations concerning Jacob Zuma (a former client of the respondent) and the Thomson-CSF/Thales/THINT group of companies. The warrants contained 24 paragraphs listing objects that could be seized. All seized items were sealed and deposited with the Registrar of the Johannesburg High Court. The respondent claimed privilege over all but three items. The respondent applied to set aside the warrants. Hussain J in the court a quo granted the application, set aside the warrants, and ordered the appellants to return forthwith all documents, files, records, notes, data and other property seized, including the mirror image of her laptop computer's hard drive, photographs taken of her office and home, and certain other items. The appellants appealed.

• Whether search and seizure warrants issued under section 29 of the National Prosecuting Authority Act 32 of 1998 were validly issued
• Whether it is appropriate for a court that has set aside an unlawful seizure to make a preservation order retaining copies of the seized materials pending possible prosecution
• Whether a court has the constitutional power to authorize continuing violation of privacy rights through a preservation order for purposes of investigating and prosecuting crime
• Whether section 172(1) and section 38 of the Constitution empower courts to fashion remedies that deny full redress for constitutional violations in order to serve broader public purposes
• The purposes for which a preservation order may be granted following unlawful seizure
• Whether the registrar should be permitted to retain seized materials to preserve a record of what was seized in case the identity of seized materials becomes contentious in future proceedings

The appeal was dismissed with costs, including costs of two counsel. The order of the High Court was varied by substituting a new paragraph 2 that: (a) Ordered the registrar to make copies of all documents and images of computer materials seized, then return the originals to the respondent; (b) Directed the registrar to retain the copies and images under seal until: (i) notified by the appellants that items may be returned; (ii) conclusion of any proceedings pursuant to the investigation; or (iii) decision not to institute or to abandon such proceedings; (c) Made these provisions subject to any court order, lawful execution of future search warrants, or lawful subpoenas; (d) Required appellants to give respondent reasonable prior notice before taking any step to obtain access to retained or returned items; (e) Required appellants to pay all costs of implementing the preservation provisions. The majority (Nugent and Mlambo JJA) adopted a narrower formulation that limited access to the preserved materials strictly to circumstances where the identity of seized materials is placed in issue in proceedings.

The binding legal principles established by the majority are: 1. The retention by a registrar of unlawfully seized material, even under seal, constitutes a continuing violation of the constitutional right to privacy under section 14 of the Constitution, as privacy is violated by dispossessing a person of control over private material, not only when such material is viewed. 2. Courts do not have general discretionary power under sections 38 and 172(1) of the Constitution to make preservation orders that deny full redress for constitutional violations in order to serve the broader public purpose of prosecuting crime. The power to fashion remedies for constitutional infringements exists to vindicate rights, not to deny them. 3. Section 34 of the Constitution (right to fair hearing) preserves a court's inherent power to order preservation of evidence where necessary to ensure the expeditious and just resolution of legal disputes. 4. A court may, in appropriate circumstances and subject to section 36 limitations, order preservation of unlawfully seized material (or copies thereof) for the limited purpose of preserving a reliable record of what was seized, to enable just adjudication of any future dispute concerning the identity of the material seized (such as disputes about legal professional privilege). 5. When a preservation order intrudes upon protected constitutional rights, a court may only make such an order within the constraints of section 36, requiring the benefit to outweigh the loss to an extent that meets constitutional standards of reasonableness and justifiability. 6. Access to material preserved under such an order should be strictly limited - a court may order production only if the identity of the material seized is placed in issue in proceedings before it and only for the purpose of resolving that issue.

Nugent JA made several important observations obiter: 1. He expressed doubt (without reaching a firm conclusion) as to whether courts have any discretion under the Constitution to make preservation orders for the purpose of preserving evidence for prosecution, stating he knew of "no law – whether it be the common law or a statute or a provision of the Constitution itself – that confers a general discretion upon a court" to intrude upon privacy and property rights for investigating and prosecuting crime. 2. He critically analyzed Canadian jurisprudence (Dobney Foundry Ltd v Attorney General of Canada; Re Chapman and the Queen; Re Commodore Business Machines) that had permitted preservation of unlawfully seized material, finding that those cases merely asserted the proposition without adequately considering whether courts have such power, particularly in the post-Charter era. 3. He observed that it would be "remarkable" if a violation by the state of a person's privacy created an authority to make orders that would not otherwise exist. 4. He noted it was unnecessary to delineate fully the boundaries within which courts may exercise powers to preserve evidence, as the case could be resolved on narrower grounds. Ponnan JA (dissenting) made several obiter observations: 1. He emphasized that "the task of combating crime and convicting the guilty" should not lure courts "by the temptations of expediency into forsaking our commitment to protecting individual liberty and privacy" (quoting Brennan J from US jurisprudence). 2. He stated that "if documents unlawfully seized can be held in the manner postulated by the State, the protection afforded by the right to be secure from unlawful searches and seizures is of little, if any, value." 3. He observed that the State's conduct "amounted to nothing less than a naked invasion of the privacy of the respondent's home and office without the requisite justification demanded by the Constitution." 4. He questioned whether Anton Piller orders can issue to police in criminal proceedings, doubting the utility of the Shoba analogy. 5. He emphasized that "out of a remedy available to someone wronged by a rights violation, the wrongdoer seeks to fashion for itself a right that it otherwise would not have had. That can hardly be authorised by our Constitution." Farlam JA's judgment indicated he was prepared to grant a broader preservation order than ultimately adopted, including preservation for purposes of the ongoing investigation and possible future proceedings, though he ultimately concurred in Nugent JA's more limited order.

This case is significant in South African law for several reasons: 1. It clarifies the limits of a court's power to fashion remedies under sections 38 and 172(1) of the Constitution - these provisions are intended to vindicate rights, not to deny redress in service of other objectives like prosecuting crime. 2. It recognizes that retention of unlawfully seized material constitutes a continuing violation of the constitutional right to privacy under section 14 of the Constitution, not merely a threat of future violation. 3. It establishes that dispossessing a person of control over private material violates privacy, even if the material is not viewed or exposed to others. 4. It affirms that courts retain inherent power under section 34 of the Constitution (right to fair hearing) to order preservation of evidence to ensure just resolution of legal disputes, continuing the principles from Shoba v Officer Commanding. 5. It provides important guidance on when preservation orders following unlawful seizures may be justified under section 36 - namely, when necessary to preserve a record of what was seized to enable fair adjudication of disputes about privilege or other issues concerning the seized materials. 6. It demonstrates judicial disagreement about the balance between individual constitutional rights (privacy, protection from unlawful searches) and public interest in prosecuting crime. 7. It is relevant to cases involving legal professional privilege and prosecutorial access to privileged materials. 8. The case formed part of a trilogy of cases (along with appeals concerning Jacob Zuma and Thint) arising from the same investigation and raising similar issues about preservation orders following unlawful seizures.