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[2010] ZAGPJHC 164
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Goldberg and Another v Boshoff NO and Another (09/53076) [2010] ZAGPJHC 164 (30 July 2010)
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
Case
No. 09/53076
DATE:30/07/2010
In
the matter between:
LAWRENCE
GOLDBERG
…..................................................................
First
Applicant
MARGARITA
REED
.............................................................................
Second
applicant
and
MAGISTRATE
R BOSHOFF
N.O.
......................................................
First
Respondent
NATIONAL
PROSECUTING AUTHORITY
(SOUTH
GAUTENG)
......................................................................
Second
Respondent
JUDGMENT
MEYER,
J
[1] The
applicants are being tried in the Regional Court, Alexandra, South
Gauteng before the first respondent on
inter
alia
a count
of fraud, five hundred and ninety three counts of theft, a count of
defeating the ends of justice, and a count of malicious
damage to
property. Their criminal trial is underway and the state has not yet
closed its case.
[2] The
state had made an application to the court
a
quo
that the
first respondent issue a letter of request in terms of s 2(1) of the
International Co-operation in Criminal Matters Act
1
(‘the ICCMA’) in which the assistance of the relevant
authority in the United Kingdom is sought to obtain the evidence
of
twelve persons, who are in the United Kingdom, and whose evidence,
according to the state, is relevant to the fraud and theft
charges.
[3] The
nature of the assistance which the state had applied for to be
requested includes the securing by the relevant authorities
of the
attendance of the twelve witnesses at a venue in the United Kingdom
from where the court
a
quo,
sitting
in Alexandra, would receive their evidence by means of electronic
media equipment. The witnesses are to be examined, cross-examined,
and re-examined by electronic means from the court room in Alexandra.
[4] The
state’s application was opposed on behalf of the accused, who
are the applicants in these review proceedings. The
state argued
that the enabling legislation to request such form of assistance from
the relevant authorities of a foreign state
is s. 2(1) of the ICCMA
2
or s. 158 of the Criminal Procedure Act
3
(‘the CPA’).
4
Counsel for the second respondent submitted to us that the
provisions of s. 158 of the CPA find application to requests for
foreign assistance by virtue of the provisions of s. 31 of the
ICCMA.
5
The disputed issues, in short, were whether the examination of the
witnesses who are in the United Kingdom are ‘necessary
in the
interests of justice’,
6
whether it would be legally competent for the court
a
quo
to issue
a letter of request in which the form of assistance as contended for
by the state is sought from a foreign state, and,
if s 158 of the CPA
enables such form of request and procedure, whether the requirements
of that section have been met.
[5] The
matter was argued before the court
a
quo
on 23
December 2009. The learned regional magistrate delivered an
ex
tempore
judgment.
It appears from a reading of the transcript of the proceedings and
from the further reasons given by the learned regional
magistrate for
the purpose of the present review proceedings that he accepted that
s. 2(1) of the ICCMA and s. 158 of the CPA authorise
the procedure
and the seeking of assistance from a foreign state in the manner as
applied for by the state. He appears to have
been satisfied that the
examination of the witnesses at the criminal proceedings over which
he presides is necessary and in the
interests of justice, and also
that the requirements of s. 158 of the CPA have been met for ordering
that the witnesses give their
evidence by means of electronic media.
[6] It
appears that the court
a
quo
was
informed that the accused would consider admitting certain of the
evidence to be obtained by means of the letter of request.
The
learned regional magistrate said:
‘
I am going to
grant the request by the state, but I am also going to postpone the
matter for a few weeks to give the parties the
opportunity to get
together and I want to urge both parties now that in many ways this
court is dependent on you.
If you cannot come to
an agreement I will have to formulate the request myself or otherwise
attach Advocate Karin de Beer’s
request and then also with
clear instructions from my side and also the defence instructions
attached to the UK Government.
So, however, I urge
you, see what will be admitted, thereafter determine the issues, and
now that we want to hear these witnesses
as the court ruled that it
is in the interest of justice to hear them, and then report back to
me.
I do not think that is
an unfair request. ...
So the long and the
short of the order today is get together, sort out what will be
admitted and if there is any problems with Advocate
de Beer’s
summary sort it out, have it correctly worded before the next date.’
7
[7]
The applicants’ counsel then addressed the court
a
quo
as
follows:
‘
Your worship we
would respectfully submit that your worship is incorrect in its
findings and we would therefore request that your
worship formally
give an order so that we may take this order on urgent appeal. ...
Your worship an order that we get together
and discuss submissions is
unsatisfactory ...’
[8] The
learned regional magistrate reiterated that an indication was given
that admissions might be made and he was not going to
make an order
‘... while that hangs in the air ..’. The record of the
proceedings read:
Counsel: ‘Your
worship I would request that your worship please formulate that
letter of request I do not believe that it
is appropriate for your
worship to suggest that we need to get together ... outside the court
to ...’
Court: ‘Well I
told you I believe it is quite appropriate and you have encountered
this order many many times in the High
Court so it is quite
appropriate to urge the parties to get together, to sort out their
differences and to determine the issues
so in other words and that is
even my suggestion what you suggested here but nevertheless you
yourself so that is why I am asking
you today on what chair do you
want to sit?’
Counsel: ‘Your
worship I would respectfully request that your worship prepare the
letter of request, any negotiations that
proceed between the
prosecution and the defence will not be part of your worship’s
judgment. ... Your worship, if your worship
wishes to prepare a
letter of request then your worship we request that all the
documentation that has been submitted to your worship
is submitted as
part of that letter of request and then your worship must also
specify exactly in which nature the witnesses are
to present the
evidence ...
Court: ‘I have
made my ruling.’
Counsel: ‘Indeed
your worship and this is why your worship we would respectfully
submit that if there is a definitive ruling
(inaudible) leave to
appeal that ruling as a matter of urgency before the next
postponement. ...’
[9] The
applicants’ counsel then orally applied from the bar for leave
to appeal. The learned regional magistrate refused
the application
for leave to appeal on the grounds that the ruling was interlocutory,
‘... in other words...’ said
the learned regional
magistrate, ‘...it can change ...’.
[10] Before
the learned regional magistrate had postponed the matter to 13
January 2010, he invited counsel for the defence to provide
him with
interrogatories on behalf of the accused for the witnesses. This
request, it seems to me, further demonstrates the open-endedness
with
which the matter was left on 23 December 2009. Any party to the
proceedings before a court which issued the letter of request
may, in
terms of s. 3(1) of the ICCMA, and ‘provided that it is
permitted by the law of the requested State’, either
submit
interrogatories for the purpose of the examination of a witness in
the foreign state or appear at the examination, either
through a
legal representative or, in the case of an accused who is not in
custody or in the case of a private prosecutor, in person,
and may
examine, cross-examine and re-examine the witness. Examination of a
witness on interrogatories submitted by or on behalf
of the defence
is inconsistent with the procedure contended for by the state of
examining, cross-examining and re-examining a state
witness via
electronic media.
[11] It
is, in my view, reasonable to infer that counsel for the applicants
also realised that the matter was left in the air.
He repeatedly
requested the learned regional magistrate at the proceedings on 23
December 2009 to issue a letter of request. Counsel
also informed us
from the bar that he approached the learned regional magistrate in
chambers after the court had adjourned when
he requested the learned
regional magistrate to issue the letter of request that had been
prepared by the Director of Public Prosecutions
for the South Gauteng
High Court, and submitted to the court
a
quo
. The
prosecutor in the court
a
quo
, who was
present in court when this matter was argued before us, and state
counsel representing the second respondent, at my request,
contacted
the learned regional magistrate and we were informed that he had not
yet issued the letter of request.
[12] The
applicants nevertheless issued the present review application on 29
December 2009, wherein they seek the setting aside
of the learned
regional magistrate’s
‘
... order of 23
December 2009, in terms of which he ordered the issue of a letter of
Request in terms of Section 2(1) of the International
Co-operation in
Criminal Matters Act, No 75 of 1996 for witnesses to testify via
teleconference facility from the United Kingdom.’
[13] The learned regional
magistrate has no authority, either in terms of the provisions of s.
2(1) of the ICCMA or in terms of
the provisions of s. 158 of the CPA,
to issue a letter of request in which the relevant authorities in the
United Kingdom are requested
to arrange and facilitate the attendance
of witnesses at a venue in the United Kingdom from where they, by
electronic means, would
give their evidence at the proceedings in the
court
a quo
.
Such power and procedure cannot be read into the clear wording of
these statutory provisions.
[14] The ICCMA
facilitates
mutual assistance in criminal cases between the Republic of South
Africa and foreign States.
D’Oliveira
8
correctly
points out that
‘
... assistance
requiring intrusive measures or compulsion can only be rendered if
the domestic law of the requested state specifically
provides
therefor and the judicial authority is engaged. For example, ... to
obtain a deposition from an unwilling witness, ...
judicial
authorisation is necessary.’
[15] The relevant provisions
of the ICCMA
9
permit the examination at proceedings in the foreign state of a
person who is in the foreign state, if the evidence of such person
is
‘necessary in the interests of justice’ in the
proceedings before a court of this country and ‘the attendance
of such person cannot be obtained without undue delay, expense, or
inconvenience’. Judicial authorisation to request this
form
of assistance from a foreign state is required and is given when a
court issues a letter of request.
10
The law and procedure of the foreign state apply to the proceedings
at the examination of the witness abroad. Such proceedings
at which
the witness is examined are not proceedings of the court which issued
the letter of request. The evidence obtained at
such proceedings is
admitted as evidence by the court which issued the letter of request
‘...in so far as it is not inadmissible
at such proceedings.’
11
[16] The provisions of ss.
158(2) – (5) of the CPA concern the giving of evidence by an
accused or by a witness through closed
circuit television or similar
electronic media at local proceedings in a criminal court and the
circumstances under which the court
may order that the evidence be
given through such media. These provisions do not permit a procedure
for the taking of evidence
across borders by electronic means at a
local criminal trial. Nothing in these subsections suggest an ‘...
arrangement or
practice for the provision or obtaining of
international co-operation in criminal matters’ as was
submitted to us by the
second respondent’s counsel.
12
[17] This, in my view, is not
a proper case for the granting of relief by way of review. The
application was prematurely brought
and should, at best for the
applicants, have awaited the authorisation by the learned regional
magistrate of a letter of request
in final form. Only then would it
have been appropriate for this court to consider whether or not the
interests of justice require
interference with the conducting of the
proceedings at the court
a
quo
.
13
The issues raised in these proceedings may then not have arisen.
Resort to this court at a premature stage has now caused a delay
in
the finalisation of the criminal trial of about seven months.
[18] It is accepted that, once
this judgment has been brought to the attention of the learned
regional magistrate, the parties will
be permitted to revisit the
application for the issue of a letter of request and the learned
regional magistrate will afresh give
due consideration to all the
relevant factors that are to be taken into account and weighed in
deciding whether or not to grant
judicial authorisation for the
relevant authorities in the United Kingdom to assist in an
examination of some or all the witnesses
at proceedings abroad.
[19] This application was
postponed on 12 January 2010, on 3 February 2010, and again on 17
March 2010. The wasted costs occasioned
by the postponement were
reserved on each occasion. We were informed that non-compliance by
the applicants with the rules of practice
of this court resulted in
the postponements.
[20] In the result, the
application is dismissed and the applicants are ordered to pay the
second respondent’s costs of the
application, including the
wasted costs occasioned by the postponements on 12 January 2010, on 3
February 2010, and on 17 March
2010, jointly and severally, the one
paying the other to be absolved.
COPPIN, J
[21] I agree.
P.A. MEYER
JUDGE OF THE HIGH COURT
P. COPPIN
JUDGE OF THE HIGH COURT
30 July 2010
1
Act No. 75 of 1996.
2
S.
2(1) of the ICMMA reads:
‘
If it appears to a
court or to the officer presiding at proceedings that the
examination at such proceedings of a person who is
in a foreign
State, is necessary in the interests of justice and that the
attendance of such person cannot be obtained without
undue delay,
expense or inconvenience, the court or such presiding officer may
issue a letter of request in which assistance
from that foreign
State is sought to obtain such evidence as is stated in the letter
of request for use at such proceedings.’
3
Act No. 51 of 1977.
4
S. 158 of the
CMA reads:
‘
(1) Except as
otherwise expressly provided by this Act or any other law, all
criminal proceedings in any court shall take place
in the presence
of the accused.
(2) (a) A court may, subject
to section 153, on its own initiative or on application of by the
public prosecutor, order that
a witness or an accused, if the
witness or the accused consents thereto, may give evidence by means
of closed circuit television
or similar electronic media.
(b) A court may make a
similar order on the application of an accused or a witness.
(3) A court may make an order
contemplated in subsection (2) only if facilities therefor are
readily available or obtainable and
if it appears to the court that
to do so would-
(a) prevent unreasonable
delay;
(b) save costs;
(c) be convenient;
(d) be in the interest of
the security of the State or of public safety or in the interests of
justice or the public; or
(e) prevent the likelihood
that prejudice or harm might result to any person if he or she
testifies or is present at such proceedings.
(4) The court may, in order
to ensure a fair and just trial, make the giving of evidence in
terms of subsection (2) subject to
such conditions as it may deem
necessary: Provided that the prosecutor and the accused have the
right, by means of that procedure,
to question a witness and to
observe the reaction of that witness.
(5) The court shall provide
reasons for refusing any application by the public prosecutor for
the giving of evidence by a child
complainant below the age of 14
years by means of closed circuit television or similar electronic
media, immediately upon refusal
and such reasons shall be entered
into the record of the proceedings.’
5
S. 31 of the ICCMA reads: ‘Nothing
in this Act contained shall be construed so as to prevent or
abrogate or derogate from
any arrangement or practice for the
provision or obtaining of international co-operation in criminal
matters otherwise in the
manner provided for by this Act.’
6
The requirements of which a court must be satisfied before issuing
a letter of request in terms of s. 2(1) of the ICCMA, which
requirements include a consideration and weighing of various
factors.
7
The reference to Adv. De Beer’s summary is a reference to a
statement that had been prepared by the Director of Public
Prosecutions for the South Gauteng High Court, Johannesburg, Adv.
Charin de Beer SC, and submitted to the court a
quo.
8
International co-operation in criminal matters: The South African
contribution
2003 SACJ 323
, at p 337.
9
See ss. 2(1), 3(1), 3(3), 4,
5(1), 5(4) and 6 of the ICCMA.
10
S. 2(1) of the ICCMA. It should be noted that a court issuing the
letter of request is enjoined to
inter
alia
request ‘that an
accurate record of the proceedings at the examination of the witness
be kept according to the procedure
normally followed in the
requested State’ (s. 4(1)(a)) and that the person presiding at
the examination make an accurate
record of the witness’s
refusal to answer any question or to produce any book, document or
object, and of the reasons for
such refusal’ (s. 4(b)), and it
may request other forms of assistance, such as that ‘that a
video recording of the
proceedings at the examination of a witness
be made’ (s. 4(2)(a).
11
S. 5(4) of the ICCMA.
12
See: Para 4
supra
and footnote 5.
13
See: Whalhaus
and Others v Additional Magistrate Johannesburg and Another
1959 (3)
SA 113
(A), at pp 119D – 120E.