Bogoshi v Van Vuuren NO and Others; Bogoshi and Another v Director: Office for Serious Economic Offences (543/93) [1995] ZASCA 125; 1996 (1) SA 785 (SCA); (13 November 1995)

Bogoshi v Van Vuuren NO and Others; Bogoshi and Another v Director: Office for Serious Economic Offences (543/93) [1995] ZASCA 125; 1996 (1) SA 785 (SCA); (13 November 1995)

The Supreme Court of Appeal held that while legal professional privilege is a fundamental right, it must be claimed bona fide for the benefit of the client. In this case, the files were sought for an inquiry into the conduct of the attorneys, not the clients, and there was no evidence that any client wished to maintain privilege or confidentiality. The appellants' claim to privilege was not genuine and was made to thwart investigation into their own conduct. The authorities for seizure were properly exercised and sufficiently particularised, and the urgency was justified by the risk of evidence being destroyed or tampered with. The seizure was not contrary to the sub judice doctrine, and...

Citation
[1995] ZASCA 125
Parties
Appellant: Morole Nthedi Bogoshi; Appellant: Andrew Molamu Lepule; Respondent: L C J Van Vuuren NO; Respondent: J D Visser; Respondent: Director: Office for Serious Economic Offences; Respondent: Johannes Abraham van der Westhuizen; Respondent: Eugene du Plessis
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
13 November 1995
Case Number
543/93
Procedural Posture
Civil Appeal / Appeal From the Transvaal Provincial Division, Judgment Delivered After Hearing Both Applications Together.
Outcome
Appeals dismissed with costs, including costs of two counsel.
Judges
Corbett, Nestadt, Vivier, Harms, Olivier
Legal Topics
Legal Professional Privilege, Search and Seizure, White Collar Crime, Judicial Review, Attorney Client Confidentiality
Civil Procedure Commercial and Corporate Legal Professional Privilege Search and Seizure White Collar Crime Judicial Review Attorney Client Confidentiality

Case Brief

Summary, issues, holding and outcome

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Parties

Morole Nthedi Bogoshi

Appellant

Andrew Molamu Lepule

Appellant

L C J Van Vuuren NO

Respondent

J D Visser

Respondent

Director: Office for Serious Economic Offences

Respondent

Johannes Abraham van der Westhuizen

Respondent

Eugene du Plessis

Respondent

Procedural Posture

Civil Appeal / Appeal From the Transvaal Provincial Division, Judgment Delivered After Hearing Both Applications Together.

Legal Issues

  1. 1 Whether documents seized from attorneys' offices under the Investigation of Serious Economic Offences Act were protected by legal professional privilege.
  2. 2 Whether the seizure of files was valid in light of privilege and procedural requirements.
  3. 3 Whether the authorities for seizure were properly exercised and sufficiently particularised.

Ratio Decidendi

The Supreme Court of Appeal held that while legal professional privilege is a fundamental right, it must be claimed bona fide for the benefit of the client. In this case, the files were sought for an inquiry into the conduct of the attorneys, not the clients, and there was no evidence that any client wished to maintain privilege or confidentiality. The appellants' claim to privilege was not genuine and was made to thwart investigation into their own conduct. The authorities for seizure were properly exercised and sufficiently particularised, and the urgency was justified by the risk of evidence being destroyed or tampered with. The seizure was not contrary to the sub judice doctrine, and...

Court Disposition

Appeals dismissed with costs, including costs of two counsel.

Orders

  • The appeals are dismissed with costs, including the costs of two counsel.
  • The orders of the court a quo regarding the handling of the seized files and costs stand.