The right to a fair trial – protected by section 35(3) of the South African Constitution – can only be safeguarded if the state refrains from harassing and intimidating lawyers and if lawyers are not indirectly punished for standing up for the rights of ordinary citizens. Where paranoid government officials target lawyers who dare to challenge the unconstitutional abuse of power by government departments, they undermine the Constitution and Rule of Law. Recent actions of the Department of Home Affairs may very well be posing such a threat.
Back in 2005, after Schabir Shaik was convicted of soliciting a bribe on behalf of Jacob Zuma from an arms company and of bribing him with other ridiculously small amounts of money, the now defunct Scorpions conducted search and seizure raids on various properties, including on Mr Zuma’s flat in Killarney (it would be many years before the money of taxpayers and other benefactors would transform Nkandla into a palace) and the offices of Roger Hulley, Mr Zuma’s lawyer.
These raids were part of the Scorpions investigation aimed at building what (at the time) it believed to be a watertight case of corruption against Jacob Zuma.
The searches and seizures must have been successful, because although charges against Mr Zuma were eventually dropped, this was not done because the National Prosecuting Authority (NPA) believed that it did not have the evidence to secure the criminal conviction of Jacob Zuma. Even on the day the charges were dropped, the then acting National Director of Public Prosecutions insisted that the NPA had ample evidence to secure the criminal conviction of Mr Zuma.
Be that as it may, the Constitutional Court rejected the legal challenge to the validity of most of these search and seizure warrants. It did, however, agree that parts of the warrants that authorized a blanket search and seizure of any documents at Mr Hulley’s office was invalid on the basis that it breached the attorney/client privilege between Mr Hulley and Mr Zuma and threatened Mr Zuma’s right to a fair trial.
As the Constitutional Court pointed out in the Zuma judgment, the right to legal professional privilege is a general rule of our common law. It states that communications between a legal advisor and his or her client are protected from disclosure, provided that certain requirements are met.
The rule is very important as it facilitates the proper functioning of an adversarial system of justice by encouraging full and frank disclosure between lawyers and their clients. Where the state uses the police to access such privileged information, it intimidates lawyers and potentially inhibits clients from speaking frankly to those engaged to protect their rights. Without the vigorous protection of this privilege there can be no fair criminal justice system and no fair trial.
In the context of criminal proceedings the right to have privileged communications with a lawyer protected is necessary to uphold the right to a fair trial in terms of section 35 of the Constitution, and for that reason it is to be taken very seriously indeed. As the Constitutional Court explained in the Zuma case:
“Accordingly, privileged materials may not be admitted as evidence without consent. Nor may they be seized under a search warrant. They need not be disclosed during the discovery process. The person in whom the right vests may not be obliged to testify about the content of the privileged material. It should, however, be emphasised that the common-law right to legal professional privilege must be claimed by the right-holder or by the right-holder’s legal representative.”
It is because the right to protect privilege is so important that the Constitutional Court declared invalid the wide-ranging warrant authorizing the search and seizure of documents at Mr Hulley’s office in a “catch-all” fashion. The Court found that the “full and indiscriminate execution” of such a warrant “would have posed a great danger to legal professional privilege, particularly if no one had happened to be present in Mr Hulley’s offices that morning”.
“It cannot be denied that searches of attorneys’ offices pose a heightened risk concerning privileged material, and for that reason all such searches should be carried out with great care and circumspection. The catchall paragraph, however, purported to authorise a wide-ranging search through Mr Hulley’s documents, files and computer records. In my view, it opened the door too widely and provided insufficient direction to the searchers and searched in the specific context of the search of an attorney’s office.”
It is therefore worrying to read that the offices of a Cape Town immigration lawyer, Craig Smith, were raided late on Friday afternoon and many of his files and computers seized.
The law firm is now challenging the validity of the search and seizure warrants and seeking a return of the documents and computers seized by the police and the Department of Home Affairs. Smith claims that the officials and the police refused to entertain his claims that the warrant was illegal and also refused entry to his Advocate who arrived to deal with the alleged breach of the attorney/client privilege. The officials left with many documents including recent case files.
If the lawyer attempted to alert the officials about the privileged nature of many of the files seized and if it is true that those executing the search ignored this, it would constitute a flagrant breach of section 29(11) of National Prosecuting Authority Act. (Even the Scorpions adhered to this section when it raided the offices of Mr Hulley.) The section states that if, during the execution of a warrant or the conducting of a search:
“a person claims that any item found on or in the premises concerned contains privileged information and for that reason refuses the inspection or removal of such item, the person executing the warrant or conducting the search shall, if he or she is of the opinion that the item contains information which is relevant to the investigation and that such information is necessary for the investigation, request the registrar of the High Court which has jurisdiction or his or her delegate, to seize and remove that item for safe custody until a court of law has made a ruling on the question whether the information concerned is privileged or not.”
But in this case officials from the Department of Home Affairs took away the files without involving the protection of the registrar. The worrying fact is that Mr Smith is representing a number of people in court opposing the Department of Home Affair’s new draconian and paranoid immigration regulations.
If the raid and the seizure of some of the files of some clients relate to these cases, the Department of Home Affairs would have subverted the criminal justice system in the most flagrant manner in an attempt to intimidate Mr Smith. Such intimidation would constitute a scandalous abuse of power and would border on the criminality. It would all be aimed at protecting a new immigration regime that is almost certainly not going to pass constitutional muster.
The new regulations make it very difficult if not impossible for many couples in permanent life partnerships to form such intimate relationships or (if they do) to live together in South Africa as partners. This seems to be in direct contravention of the Constitutional Court judgments in National Coalition for Lesbian and Gay Equality v Minister of Home Affairs and Dawood v Minister of Home Affairs.
Regulation 3 states that an applicant who wishes to apply for a visa or a residence permit in terms of the Act on the basis that the applicant is married to a South African citizen or permanent resident of South Africa must prove that the relationship had existed for at least two years before the date of the application for the visa or permit.
This means if you meet a foreigner, fall in love, and marry that foreigner, your husband or wife will not be entitled to be granted a South African visa or permit unless you can prove that you have been in a relationship with the love of your life for at least two years.
As the regulations make it almost impossible for a South African citizen to live with his or her beloved in South Africa for the first two years of the relationship, it would make it very difficult if not impossible for most South Africans to enter into and sustain an intimate relationship with a non-South African resident. This would constitute a fundamental infringement of every South African’s right to human dignity.
Moreover, if you actually manage to sustain such a long distance intimate relationships for two years, it would be rather difficult to prove that you have been in an intimate relationship for those two years. I can imagine the Kafkaesque nightmare of having to convince an official of the Department of Home Affairs that you sustained an intimate relationship with somebody for two years while that person was living abroad.
But even if such a couple, against all odds, manages to form such an intimate relationship and gets married within two years of having met, they would not be allowed an uninterrupted joint stay in South Africa for the first two years. They would be forced to live in different countries despite being married to one another. Of course, for those who are not rich and cannot afford the expense of travelling from their home country to South Africa or vice versa, the infringement of their right to happiness would be even more severe.
The regulations bestow draconian powers on the Director General of Home Affairs to revoke a visa or a permit after it was granted. It affords no hearing to the partners whose right to life together in an intimate partnership would be fundamentally affected. For these reasons I would be extremely surprised if the Constitutional Court does not declare some of these regulations unconstitutional. In Dawood the Constitutional Court stated:
“The decision to enter into a marriage relationship and to sustain such a relationship is a matter of defining significance for many if not most people and to prohibit the establishment of such a relationship impairs the ability of the individual to achieve personal fulfilment in an aspect of life that is of central significance… [S]uch legislation would clearly constitute an infringement of the right to dignity. It is not only legislation that prohibits the right to form a marriage relationship that will constitute an infringement of the right to dignity, but any legislation that significantly impairs the ability of spouses to honour their obligations to one another that would also limit that right. A central aspect of marriage is cohabitation, the right (and duty) to live together, and legislation that significantly impairs the ability of spouses to honour that obligation would also constitute a limitation of the right to dignity.”
Is the Department of Home Affairs really subverting the very essence of our criminal justice system by illegally attempting to intimidate lawyers and their clients in order to defend these rules, which are almost certainly not in accordance with the basic guarantees of our Bill of Rights? If so, are they doing this out of sheer, irrational, paranoia and/or because of undeclared xenophobia?
Either way, it is respect for the human dignity of every citizen that is being threatened. DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.
"Have no fear of perfection - you'll never reach it." ~ Salvador Dalí