The Constitutional Court on Tuesday ordered that the Pietermaritzburg high court can hold a closed-door hearing to decide whether certain documents seized by the state in its long-running “Amigos” prosecution are subject to legal professional privilege.
Whether they are, may be crucial to the outcome of an application for a permanent stay of prosecution by the accused, Gaston Savoy, Intaka Holdings and Fernando Praderi. They argue it would be “unjust for the state, having accessed those documents, to proceed with the prosecution”, said the Constitutional Court’s judgment.
The three face charges of bribery, racketeering, money-laundering, fraud and corruption in relation to an alleged criminal enterprise involving the supply of water purification plants and oxygen self-generating units to the provincial health departments of KwaZulu-Natal and Northern Cape. The prosecution has dragged on for more than a decade.
During their application for a permanent stay, they asked the high court to hold a special hearing in camera — or behind closed doors — to determine whether the documents — 69 of them — were indeed subject to privilege.
The high court refused and the Supreme Court of Appeal refused an application for leave to appeal. But the Constitutional Court said an in camera hearing struck the correct balance between the competing principles of open justice and legal professional privilege.
Both were important elements of the judicial system in an open and democratic society, said justice Leona Theron on behalf of a unanimous court. The right to legal professional privilege states that communication between lawyer and client is protected from disclosure. Its rationale is that it encourages full and frank disclosure, which promotes fairness in litigation. In the context of criminal cases, it is necessary to uphold the right to a fair trial.
The Constitutional Court said an in camera hearing struck the correct balance between the competing principles of open justice and legal professional privilege.
Theron said open justice — including that courts are, in general, conducted in public — “is the operating principle in our constitutional democracy”. Quoting an earlier ConCourt judgment, she said “the public is entitled to know exactly how the judiciary works and to be reassured that it always functions within the terms of the law and according to time-honoured standards of independence, integrity, impartiality and fairness”.
Courts should only resort to in camera proceeding where it was in the interests of justice to do so and this would vary from case to case, she said.
With no in camera hearing, Savoy, Intaka and Praderi were in an invidious position, she said. They would be forced to choose between presenting the documents in open court (and disclosing their contents to the state and the public) or “drastically weakening their case for a permanent stay” by trying to persuade the court that the documents are privileged without giving the court access to them.
An in camera hearing was not absolute or irreversible, she said. If the documents were found to indeed be privileged, the law allowed for a deviation from the open justice principle. If the court decided that they were not privileged, they should be later disclosed in the main application for a permanent stay — “and thus will enter the public sphere”.
The court ordered that when the in camera hearing happens, there must be a record kept of the proceedings. “If it is determined that a particular contested document is not privileged, the part of the record which pertains to that document shall become public.”
The state representatives who participate in the in camera proceedings must sign a confidentiality undertaking, and anyone present at the in camera proceedings “is not permitted to be involved in the subsequent investigation or prosecution of the applicants”, the court ordered. However, if the documents are found not to be privileged, this part of the order would fall away.
Last year former head of KwaZulu-Natal provincial treasury, Dumisani Shabalala, was convicted of corruption, fraud, money laundering and contravening the Public Finance Management Act for his part in the Amigos case, relating to the award of a R44m contract to Intaka, in return for a R1m “sweetener” to the ANC.
He was initially arrested along with 22 others, including ANC provincial leaders Mike Mabuyakhulu and Peggy Nkonyeni. The case became known as the “Amigos case” because that was how the accused addressed each other in correspondence. Charges were later withdrawn against Mabuyakhulu and Nkonyeni — but TimesLIVE previously reported that the state capture commission recommended they be recharged.
Shabalala was the first accused in the matter to be convicted and sentenced after he applied for a separation of trials. He was sentenced to an effective 15 years.
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