State Privilege: Public interest immunity

Question 1

Basis of SP

Answer 1

Relevant and otherwise admissable evidence may be witheld or excluded on ground that its admission or production will be against public policy or harmful to public interest

Question 2

Basis on which excluded

Answer 2

Where admitting evidence is against public policy, where it can negatively affect state security and when contrary to public policy

Question 3

Duncan v Cammel Laird & CO (UK case)

Answer 3

Plaintiff wanted access to design of submarine. During this time there was an ongoing war, and the navy was resistant to give these designs, because if information out in public enemies can understand the structure and attack better, thus public interests outweigh access to information

Question 4

Terminology: Crown Privilege

Answer 4

Before the republic: much of law relating to public interest immunity developed by courts in these cases it concerned the highest affairs of the state like national security, state secrets and matters of diplomatic importance- in these matters a claim to immunity was made on behalf of government

Question 5

Current position of crown privilege

Answer 5

Last 3 decades English Courts refer to it as public interest immunity, because the public interests needs to be protected and it should not be confined to the crown in the sence that executive or local government interests at work

Question 6

Why is a waiver not possible when public demands exclusion?

Answer 6

Makanjuolu v Commissioner of Police of Metropolis: public interest immunity is not a trump card vouched to certain players to play as they wish. It is an exclusionary rule, imposed by parties in certain circumstances

Question 7

Why is private privilege different?

Answer 7

It protects private interests such as attorney client privilege and sanctity of marriage.
Gen rule not upheld mero moty: eg court has duty to inform priv against self incrim and cannot force him to disclose info that would incriminate.
Only the individual concerned can waive the priv.
Secondary evidence is admissable like a copy of doc
Judicial peeping occurs

Question 8

Characteristics of state privilege

Answer 8

1] Protects the state interest
Including informers privilege and the protection of state information that the state does not want to disclose to the public
2] As a general rule upheld mero motu
Court makes the decision on admissibility. If the disclosure of certain information would infringe upon state privilege and be detrimental to state interest, the court alone can decide to not accept such relevant evidence
[3] Only the ministerial head can waive the privilege
[4] Secondary evidence is not admissible.
Both the originals and the copies cannot be admitted as evidence
[5] “judicial peeping” occurs more often
Court will have to inspect the contents of the documents to determine whether it is subject to State privilege

Question 9

Development of English Common Law

Answer 9

1860: English courts inclined to accept the executive word as final say with matters affecting state security and non-security matters
Duncan v Cammel Laird: courts could never question crowns claim to crown privil if made in proper form and applied to contents of claim
Conway v Rimmer: courts confirmed role of courts to have final say to make exclusion based on state privilege, confirmed the executive does not have absolute power to determine privilege but courts can check it

Question 10

State Privilege prior to constitution:

Answer 10

Van Der Linde v Calitz: This case Broke away from decision of Duncan which said that where statement made by crown was final say. TB authors suggest that they were still bound by Duncan but gave more power to privy council decision- This was a form of healthy development. Which came to abrupt end due to the implementation of legislation

Case opened door for saying courts should have final say for matters concerning national security. Still vested in state whether privileged or not court has power to review that decision in some instances

Question 11

Legislative interference

Answer 11

Sec 29, General Law Amendment Act (GLAA)&raquo_space; reversed decision of Calitz. The executive will have absolute and unequivocal power to determine whether something is privileged or not. If it is of the opinion of the executive if it will prejudicial to public safety or the state. Only where certificate of exclusion presented in proper form, by appropriate minister or official

Geldenhuys v Pretorius 1971: But this section still said courts don’t have jurisdiction to determine state privilege where it was claimed on basis of state security
Then it was amended and replaced by s66 if Internal Security Act: it said that the executive had final say on matter affecting state security, whereas in non-security matters courts retained jurisdiction
Sec 66 of ISA was repealed on 15 Nov 1996

Question 12

If s66 of ISA not been repealed with what rights would it be incoflict?

Answer 12

Sec 165 IC :rights vests with authority of courts. Would be conflict as sec 66 provided court may not be arbiter in certain instances. Conflicts with SOP
o Sec 32 access to info held by states
o Sec 34 access to courts and a fair hearing
o Sec 35 (3) (i)&raquo_space; right to fair trial including right to adduce evidence

Question 13

The notion of traditional state privilege must now be dealt with ito broad balancing exercise, what is the factors that needs to be considered?

Answer 13

• Nature of proceedings
• extent and character of the materials
• connection of information to national security
• grounds for claiming or refusing disclosure
• whether information already in public domain and why
• impact of non disclosure or non-disclosure on the ultimate fairness of proceedings before the court, when two or more competing claims are assessed (test)

Question 14

What are the two interests seeking to balance ito state privilege?

Answer 14

1) Balance open justice

2) With constitutionally based power and a duty on executive to make and implement national security (non disclosure)

Question 15

How would a judicial officer balance it out if he doesnt know the content of the information?

Answer 15

Judicial officer has power of judicial peek, allows court to examine despite reasoning for not wanting it to be disclosed, only in certain circumstances and partial disclosure is also possible where appropriate.

Question 16

Detection of crime is also a state privilege and governed by 202 CPA, what case set out the conditions that needs to be satisfied and what are those conditions in order for this privilege to be met?

Answer 16

Set out in Suliman v Hansa
Communication originated in confidence that it wont be disclosed. To keep it in confidence is essentail to maintain relationship between parties. The relationship must be regarded as one which the community thinks needs to protected. Injury if disclosed be greater than the benefit gained for disclosure in litigation.

Question 17

What does this privilege with regards to detection of crime protect?

Answer 17

It protects communications tending to expose methods used to investigate crime.
R v Abelson: Court said that the whole business of crime is constructed in secret and devious ways against the interest of the state, and the work of defeating the operations of criminals must also be conducted, obviously, by similar methods. In this case A contravened the Spirits Act and policeman was called to testify and was ased by A’s defence counsel to review reports the police used to investigate and catch the accused. The police officer refused to disclose the information wrt the methods they used to catch Mr A because it is confidential. The court upheld this privilege because the court said if criminals knew the methods used by the police to catch them, they would accordingly adapt their modus operandi.

S v Peake: Police officer made a recording of a convo he had with the accused. The defence wanted to know how he went about this recording. Minister issued an affidavit saying that this info is privileged because it would not be in the public interest if that info was disclosed. Ito Access to Information Act, can also refuse to disclose information.The court upheld the privilege that the method the policeman used to record the conversation could not be disclosed.

Question 18

What does this privilege with regards to detection of crime protect? part 2

Answer 18

Communications tending to reveal identity of an informer: this is part of state privilege and privilege belongs to state.
Rex v Van Schalkwyk: informer is any person who gives info to the authorities of commission of crime or info leading to detection of crime, is deemed to be in the public interests and ought to be protected.

Question 19

Reasons for existence of this privilege (communications tending to reveal identity of informer)

Answer 19

1) it protects informer and his family
2) ensures future use of informer
3) Encourages members of public to report crimes: due to privilege members of public feels safe to report

Question 20

Discuss Swanepoel v Min of SS

Answer 20

The court held that informer’s privilege is not simply an evidentiary rule but is also a substantive right. Because the police disclosed the identity of S, S had to flee and had to obtain different employment, and because of this S claimed damages.

Court held informer’s privilege is not just an evidentiary rule but also a rule in substantive law and therefore the informant in this case was entitled to compensation.

Question 21

When can this privilege be relaxed?

Answer 21

Ex Parte Minister of Justice: Re v Pillay stated that this privilege can be relaxed when:

• First is where is would be material to the ends of justice.
• Also where it is necessary to show the accused’s innocence.
• Also if the reason for secrecy no longer exists, the privilege should be relaxed

Question 22

Can this privilege of the state be waived?

Answer 22

Uncertainty regarding this. The debate as to whether the informer himself can waive this privilege is still on going in the law of evidence.
It is acceptable that the informer can waive the privilege BUT there is a qualification, which is the interest of the public and the interest of the state.

Because it is in the state’s interest that the identity is kept secret, the state can too withhold the informer’s identity.

R v Van Schalkwyk - So even if an informer wants to waive the privilege, the court should not allow him to do if it is not in the interests of the public

Question 23

What is the position of extention of the informers privilege?

Answer 23

No authority to support this in SA Law, but Blake & Austin v DPP (english law case) , that there is no reason to extend the privilege due to the reasoning that there is no difference between informers and providers of info from observation post, both provide the state with indispensable info.

Question 24

Does informers privilege in a criminal trial infringe the accuseds right to a fair trial?

Answer 24

Identity of informer not disclosed and the accused will not have a chance to cross examine that informer (does this impact right to fair trial)

Roviaro v United States:There can be no fixed rule as regards to disclosure of the identity of an informer.
A balance must be struck between the public interest and the right of the individual to prepare and present his defence. Where the disclosure of the informer’s identity or disclosure of the contents of his communications is relevant and helpful to the accused, the privilege must be lifted

McCray v Illinois: the informer’s privilege is not per se unconstitutional, but accused’s right to a fair trial should be considered. So the cases makes it clear that the privilege is not per se unconstitutional but the accused’s right to a fair trial must be considered in deciding whether the privilege can be waived

Question 25

To what extent does the accuseds right to fair trial have on the privilege of the informers identity?

Answer 25

Els v Min of SS: The informer system was one of the cornerstones of the battle against organised crime and when the identity of one informer was made known, other informers or would-be informers would desist from providing information.
The advent of the new Constitution should not, in the public interest, have the effect of watering down the informer privilege to any significant extent even though it did vest in the courts a wider discretion to enforce disclosure of the identity of informers than they previously had. The opportunity which the applicant had of protecting his rights if the identity of the informer was disclosed, could not be of greater public importance than the protection, insofar as was legally permissible, of the privilege attaching to informers.
Application was accordingly dismissed.

Question 26

Statutes that exclude evidence of identity despite mandate of disclosure

Answer 26

Sec 38(3): Financial intelligence Centre Act (FICA)
 Where person provides info regarding cash transaction over the limit, suspicious and unusual transactions and conveyance of money to and from SA. Records indicating their identity cannot be disclosed. And protection only applies to criminal proceedings. Section also provides that person is competent but not compellable to give evidence. But where person choses to testify then protection falls away

Sec 17(9) of the Protection of Constitutional Democracy against Terrorist and Related Activities Act [“Terrorist Act”]: The identity of persons that have provided evidence for alleged contravention of another of this act, sec 4 crimes, shall not be disclosed unless person testifies themselves. Again, only criminal proceedings. Also, competent but not compellable as a witness

Question 27

The police docket and Constitutional provisions: Access for purpose of trial. What is a police docket and what does it consists of?

Answer 27

Police docket: is witnesses statements that the police took, expert reports, it contains all the info of the poliec report and is given to prosecutor.
It has 3 sections:
a) Statement of witnesses, expert reports and documentary evidence
b) interal reports and memoranda
c) investigation diary

Question 28

What was the position of the police docket before the constitution?

Answer 28

Blanket docket privilege: accused had no access to police docket for purposes of criminal trial.

Question 29

Why was blanket docket privilege done away with?

Answer 29

The courts based their decision that it was a matter that needed to be decided by the courts.

Question 30

Discuss Shabalala v Attorney General of Transvaal

Answer 30

Blanket docket privilege is in conflict with the constitution in that all info contained in the police docket is classified irrespective of whether it is a justified limitation on the accused’s right to a fair trial.
Should have access if it would assist the accused in his defence unless the state can give reasons why the non-disclosure will not affect the accused’s right to a fair trial.
The accused should have access to parts of the docket if it will assist the accused in countering the charges brought against him.

State can refuse disclosure if for purposes of trial in the following instances:
1. If the disclosure would reveal the identity of the informer.
2. If the disclosure would lead to the intimidation of state witnesses.
3. If the disclosure will be prejudicial to the administration of justice.
The court still has the discretion to decide whether the police docket should be made available to the accused. In exercising the discretion the court must weigh the accused’s right to a fair trial against any legitimate interest the state may have.

The decision in Shabalala is reconcilable with s34 of the Constitution (access to courts) because the court has the discretion to determine whether the documents should be disclosed and it is not just for the state to decide.

Question 31

Is disclosure of contents the same as requesting further particulars to the charge?

Answer 31

No, it is a common misconception that it is. When the state does furnishes further particulars they are bound by such particulars and could constitute an amendment of the charge
o This is not the same as a request of information from police docket&raquo_space; this is common misconception
▪ Disclosure of police docket is not bound by sec 87
▪ Does not constitute amendment of the charge as state is not bound by it

Question 32

What happens to information which only becomes available after commencement of trial?

Answer 32

Does form part of trial and only in instances where such information which will render the trial unfair will that be excluded.

Question 33

Can the court make use of judicial peek to determine whether police docket should be kept non disclosed?

Answer 33

Yes the court can. Use the purposive approach as set out in Panayiotou v S: Confirmed that usually one will have access to section A of the docket but could also request access to section B and C if properly motivated. This is said to realise your fair trial rights. Right to access documents merely because there is not enough without prima facie evidence to show that it is relevant. The purposive approach by courts and appropriate balance of fair trial rights and administration of justice.

Question 34

Is it possible for the defence to have interviews with (potential) state witnesses?

Answer 34

An extension of the former blanket docket privilege was the ethical rule of practice that the defence could not without the consent of the prosecution have had interviews with state witnesses.

Shabalala v Attorney General of Transvaal :To the extent that the rule prohibits consultation with the witness for the State without permission of the prosecuting authority, the rule is inconsistent with the Constitution. The accused person has the right to consult the state witness without prior permission of the prosecuting authority in circumstances where his or her right to a fair trial would be impaired if the accused cannot properly obtain a fair trial without such consultation.
- BUT not entitled to compel the state witness:
o State witness may decline to be consulted; or
o If the State has reasonable grounds to believe such consultation might lead to intimidation or tampering of the witness

Question 35

Access of police docket for purposes of bail applications position

Answer 35

Erroneous presumption that accused also has access to police docket for purpose of bail proceedings. Premature disclosure of info or evidence in a police docket should be prevented to ensure proper administration of justice.

To regulate this error of perception the legislature introduced s 60(14) of the CPA:
Notwithstanding anything to the contrary contained in any law, no accused shall, for the purposes of bail proceedings, have access to any information, record or document relating to the offence in question, which is contained in, or forms part of, a police docket, including any information, record or document which is held by any police official charged with the investigation in question, unless the prosecutor otherwise directs: Provided that this subsection shall not be construed as denying an accused access to any information, record or document to which he or she may be entitled for purposes of his or her trial.”

Question 36

Is s60(14) of the CPA consitutional?

Answer 36

S v Dlamini, S v Dladla; S v Joubert; S v Schietekat:
Sec 60(14) is constitutional as premature disclosure can harm police investigation and states case. The CC confirmed this discretion that prosecutor may deny access to applicant. Was not a blanket refusal?Prosecution doesn’t have unfettered discretion
o They should at least try to apply their minds
▪ The court also has the competency to compel/direct disclosure of information for the purposes of bail proceedings. To afford bail applicant a reasonable opportunity

Question 37

When does forced disclosure occur despite of s 60(14)?

Answer 37

1) Factual Circumstances where court must order disclousre
60(3) where court is of the opinion in bail proceedings that there isnt enough evidentiary information tod ecide whether bail should be granted or not. Court can request that further info or evidence in docket should be disclosed to decide whether bail must be granted or not.
60(10): court needs to weigh up the personal interest of the accused against interest of justice in determining whether bail should be granted. if personal interest is depending on info in docket and personal interest deemed as more important the court can demand info be disclosed @ bail proceedings.
2) Accused is entitled to a statement in police docket
s355 CPA:When a statement is made to the police and later the person who made the statement is an accused in a criminal trial. Where the statement is part of the police docket against the accused, such an accused will be granted access to the statement.
3) Prosecutor may be under a ethical duty to disclose contents

Question 38

What is the aim of the Promotion of Access to information act?

Answer 38

Promotes access to information&raquo_space; sec 32 FC. And promotes access to info held by state. But recognises this right subject to sec 36 FC. ∴ doesn’t abolish public privileges, actually enforces it in some instances

Question 39

What is the preamble of Access to Information bill?

Answer 39

RECOGNISING the importance of information to the national security, territorial integrity and well-being of the Republic;
o ACKNOWLEDGING the harm of excessive secrecy
o AFFIRMING the constitutional framework for the protection and regulation of access to information
o DESIRING to put the protection of information within a transparent and sustainable legislative framework
o AIMING to promote the free flow of information within an open and democratic society without compromising the security of the Republic

Question 40

What is the aims of the Access to Information bill?

Answer 40

Creates a statutory framework for the protection of state information
▪ Defined in sec 1: information generated by organs of state or in the possession or control of organs of state

o Sets out criteria and processes ito which SI may be protected from destruction or from disclosure
o Sets out criteria and processes ito which information which is protected from disclosure and which is classified may be declassified
o Creates offences and proposed sentences for unauthorised disclosure of information, including the crime of espionage
o Makes it an offence for an individual to knowingly supply false information to the national intelligence structure
o Established guidelines for the treatment by courts of classified documents