Savoi and Others v National Prosecuting Authority and Another (CCT 146/22) [2023] ZACC 38; 2024 (1) SACR 343 (CC); 2024 (5) BCLR 653 (CC) (28 November 2023)

Savoi and Others v National Prosecuting Authority and Another (CCT 146/22) [2023] ZACC 38; 2024 (1) SACR 343 (CC); 2024 (5) BCLR 653 (CC) (28 November 2023)

The Constitutional Court held that the appropriate procedure for considering documents allegedly protected by legal professional privilege in the context of a permanent stay application is an in camera review. This strikes a balance between the constitutional principles of open justice and legal professional privilege. The Court found that requiring proof of privilege at the interlocutory stage prejudges a central issue and is not necessary for determining the procedure. The in camera process does not entail permanent secrecy, as records can be made public if privilege is not established. The Nkosi AJ order does not preclude the High Court from fashioning a confidentiality regime for the...

Citation
[2023] ZACC 38
Parties
Applicant: Gaston Savoi; Applicant: Intaka Holding (Pty) Limited; Applicant: Fernando Praderi; Respondent: National Prosecuting Authority; Respondent: South African Police Service
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
28 November 2023
Case Number
CCT 146/22
Procedural Posture
Leave to Appeal / Application for Leave to Appeal and Appeal From Interlocutory Order
Outcome
Leave to appeal granted; appeal upheld; High Court order set aside and replaced with an order granting the interlocutory application and prescribing an in camera review procedure.
Judges
Kollapen, Madlanga, Majiedt, Makgoka, Mathopo, Potterill, Rogers, Theron
Legal Topics
Legal Professional Privilege, Open Justice, In Camera Review, Superior Courts Act Section 32, Permanent Stay of Prosecution
Constitutional Law Civil Procedure Legal Professional Privilege Open Justice In Camera Review Superior Courts Act Section 32 Permanent Stay of Prosecution

Case Brief

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Parties

Gaston Savoi

Applicant

Intaka Holding (Pty) Limited

Applicant

Fernando Praderi

Applicant

National Prosecuting Authority

Respondent

South African Police Service

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal and Appeal From Interlocutory Order

Legal Issues

  1. 1 Whether a party seeking deviation from the open justice principle on the basis of legal professional privilege must first establish privilege.
  2. 2 Whether in camera hearings entail permanent secrecy of proceedings.
  3. 3 The implications of the Nkosi AJ order on another court's ability to decide on the documents subject to that order.

Ratio Decidendi

The Constitutional Court held that the appropriate procedure for considering documents allegedly protected by legal professional privilege in the context of a permanent stay application is an in camera review. This strikes a balance between the constitutional principles of open justice and legal professional privilege. The Court found that requiring proof of privilege at the interlocutory stage prejudges a central issue and is not necessary for determining the procedure. The in camera process does not entail permanent secrecy, as records can be made public if privilege is not established. The Nkosi AJ order does not preclude the High Court from fashioning a confidentiality regime for the...

Court Disposition

Leave to appeal granted; appeal upheld; High Court order set aside and replaced with an order granting the interlocutory application and prescribing an in camera review procedure.

Orders

  • Leave to appeal is granted.
  • The appeal is upheld.