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Picture: 123RF/THODONAL
Picture: 123RF/THODONAL

Two men facing corruption charges successfully argued in the Constitutional Court that documents they claim are privileged, but were seized by the police and the National Prosecuting Authority (NPA), should first be examined privately and not treated openly.

The men, Gaston Savoi and Fernando Praderi, as well as a company known as Intaka Holdings, want to use the documents in their ongoing fight for a permanent stay of prosecution in the Pietermaritzburg high court. They’re charged with fraud and corruption in relation to an alleged criminal enterprise in supplies to the provincial health departments in KwaZulu-Natal and the Northern Cape.

The accused claim the NPA shouldn’t have been allowed to have taken 69 documents as part of the prosecution’s case against them because the documents are protected by lawyer-client privilege. If the accused can prove the documents are protected by such privilege they will have a basis to have the charges against them dropped.

The apex court was tasked with determining the procedure the Pietermaritzburg high court must use when the parties continue arguing for a permanent stay of prosecution.

This is because the basis of their case is that the documents are privileged, though they cannot with their argument in the high court if they can’t get assurance the court will keep the documents confidential while hearing their case

Judge Leona Theron ruled the proceedings should happen “in camera”, when the matter goes back to court, which will “allow representatives of the [NPA] to view the contested documents [but] under conditions of confidentiality”.

With this victory secured, the accused can now return to the high court. Theron said that this struck the right balance: if the accused had made out a case, the documents were privileged and should not have been used by the NPA, the documents would remain confidential and they could win their case. This could mean the charges are dropped.

If, however, the court determines the documents are not privileged, there would be no reason to keep them confidential and the NPA could prosecute.

Importantly, Theron noted that it could be the case that some documents were privileged while others were not. That must be determined during the “in camera” procedure that would happen in the Pietermaritzburg court.

moosat@businesslive.co.za

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