Investigating cybercrime is a complex endeavour for companies worldwide, and in South
Africa, the landscape presents unique challenges. One of the challenges are that law
enforcement agencies often lack the resources and specialised training to effectively
investigate cybercrimes, leading to slow and ineffective responses to gathering admissible
evidence.
In this article, we are going to be embarking on a deep delve into a concept that is fairly new
to South Africa’s jurisprudential landscape but largely finds support in English Judicial
Precedent. This concept has come to be known as “Norwich Pharmacal Relief” which can
potentially assist companies to rapidly respond and secure admissible evidence pertaining to
cybercrime incidents.
The name derives from the old English case of Norwich Pharmacal Co and others v
Commissioner of Customs and Excise 1974 AC 133 (HL). 1 This case laid the basis for this
highly efficient legal remedy, which had thereafter gone on to be widely recognized in
English Law.
Norwich Pharmacal Relief in its most basic form is an application in which the Applicant
seeks the assistance of the Courts to gain access to information, held by a third party, in
advance of any litigation being instituted, in order to determine the identity of prospective
wrongdoers because the wrongdoers are unknown to the Applicant. Thus, the granting of the
order has the effect of, affording the Applicant a much better chance of correctly identifying
and instituting action against the correct Defendant. Under English Law, the requirements for obtaining Norwich Pharmacal Relief have been summarized as set out hereunder:
“The three conditions to be satisfied for the court to exercise the power to order Norwich
Pharmacal relief are:
(i) A wrong must have been carried out, or arguably carried out, by an ultimate
wrongdoer;
(ii) There must be a need for an order to enable action to be brought against the ultimate
wrongdoer; and
(iii) The person against whom the order is sought must: (a) be mixed up in so as to have
facilitated the wrongdoing; and (b) be able or likely to be able to provide the
information necessary to enable the ultimate wrongdoer to be sued.” 2
It is notable however, that the Court still does have a discretion in granting the order, even if
the above requirements are met, further, the Court can set the terms upon which the order is
granted.
1) Norwich Pharmacal Co and others v Commissioner of Customs and Excise 1974 AC 133 (HL).
2) C Hollander Documentary Evidence 12 ed (2015) at 4-01.
In the South African case of Nampak Glass (Pty) Limited v Vodacom (Pty) Limited and others
[2019] JOL 43631 (GJ), in this case Unterhalter J had to grapple with the issue of what was
in essence a Norwich Pharmacal Relief brought as an urgent application by Nampak Glass
Proprietary Limited against Vodacom (Pty) Ltd, MTN Limited, Cell C (Pty) Ltd and Telkom
SA SOC Limited.
In summary, Nampak had suffered a robbery at their premises and sought to take legal action
against the wrongdoers, however, the wrongdoers were unknown to Nampak at the time this
application was brought. 3 As such, Nampak had brought an urgent application in which it
sought the Court’s assistance in gaining certain information from a number of cell-phone
operators. 4 This was done on the basis that the information will aid Nampak in investigating
and identifying who the wrongdoers were and to eventually take legal action against them. 5
The cell phone operators did not oppose the relief sought by Nampak. 6
In deliberating on whether or not this order should be granted, the Learned Judge undertook a
full exploration of the common law position on these types of matters, judicial precedent, the
Rules of Court, and the Constitution.
Unterhalter J considered the exposition of the common law delivered by Coetzee J in House
of Jewels and Gems and Others v Gilbert and Others 1983 (4) SA 824 (W) 7 , in which the
Learned Judge did not consider the relief capable of development under the Court’s inherent
jurisdiction because the prayers sought were not wholly matters of adjectival law, but matters
which if at all, must arise, from claims of substantive rights at common law. 8 Unterhalter J, in
the Nampak Glass Judgment departs from this conclusion for the below stated reasons.
There are two main reasons why the Learned Judge in the Nampak Glass Judgment departs
from the earlier conclusion, and these are namely:
- The matter of House of Jewels was decided before our current Constitutional
dispensation, the Constitution now requires that the development of the common law
must promote the spirit, purport and objects of the Bill of Rights. One of the key
rights under the Bill of Rights is enshrined under Section 34 of the Constitution which
states:
“Access to Courts - Everyone has the right to have any dispute that can be resolved by the application
of law decided in a fair public hearing before a court or, where appropriate, another
independent and impartial tribunal or forum.” 9
3) Nampak Glass (Pty) Limited v Vodacom (Pty) Limited and others [2019] JOL 43631 (GJ) para 14.
4) Ibid para 1.
5) Ibid.
6) Supra Note 5.
7) House of Jewels and Gems and Others v Gilbert and Others 1983 (4) SA 824 (W).
8) Ibid para 4.
9) The Constitution of the Republic of South Africa, 1996,Section 34.
Therefore, if a person has been harmed by another whose identity is unknown, that
harm cannot be remedied by application of the law until the defendant is identified. 10
It is hard to see why procedures should not be adopted to assist in identifying the
defendant because such procedures serve to make it possible to bring the claim of the
injured person before the Courts so as to have the dispute resolved. If anything, such
procedure assists injured persons and promotes the right of Access to Courts. 11
- The Rules of Court do not provide for a procedure to require the disclosure of
information that might better place an injured person in a position to identify a
wrongdoer. 12 As such, this is a circumstance in which the procedure is inadequate and
a mechanism is required to assist an injured person. 13
It is a circumstance therefore, where the court may exercise inherent jurisdiction. 14 The
Learned Judge expressed that the order does not settle any question of ultimate duty or
wrongfulness. It is simply a means to have the ultimate questions of right and wrong
determined by a court. 15 I would therefore recognise a procedure to assist injured persons as a
matter of the exercise of inherent power. 16
The Learned Judge eared on the side of caution and expressly stated that “I should caution
that these observations both as to the English Law and its adaption in our law are matters
that come before me in the urgent court. But I am satisfied that Norwich Pharmacal relief
should be recognized. It is an appropriate development of our law and the requirements of
English Law, suitably adapted, serve well enough to provide an effective remedy.” 17
It had been further stated that: “I should caution further, however, that since orders of this
kind can be intrusive, it is necessary that, not only should the requirements for the grant of
the order be met, but the interests of those burdened by the order and those having an interest
in the information that is sought should be carefully considered and weighed.” 18
It can be seen from the above that whilst this procedure could prove to be instrumental in
providing Access to Courts in line with what the Constitution had envisaged in Section 34, it
is conditional upon a careful weighing of the interests of those the order concerns. A due
consideration must be had to confidentiality, and the rights of other uninvolved parties who
may possibly be harmed by such an order.
10) Nampak Glass (Pty) Limited v Vodacom (Pty) Limited and others [2019] JOL 43631 (GJ) para 6.
11) Ibid.
12) Nampak Glass (Pty) Limited v Vodacom (Pty) Limited and others [2019] JOL 43631 (GJ) para 9.
13) Ibid.
14) S v Molaudzi 2015 (2) SACR 341 (CC) at 33.
15) Nampak Glass (Pty) Limited v Vodacom (Pty) Limited and others [2019] JOL 43631 (GJ) para 11.
16) Ibid.
17) Nampak Glass (Pty) Limited v Vodacom (Pty) Limited and others [2019] JOL 43631 (GJ) para 20.
18) Ibid para 21.
Whilst this new procedure is a new and exciting way of securing Access to Justice, we
understand that it can be quite complex to understand and navigate the procedural
requirements of this procedure, fear not, the LMW Forensic Services team can help you with
your potential Norwich Pharmacal Relief Application.