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[2021] ZAGPJHC 381
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S v Porritt and Another (SS 40/2006) [2021] ZAGPJHC 381 (19 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: SS 40/2006
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:
YES
REVISED.
19
March 2021
THE
STATE
v
PORRITT,
GARY PATRICK
Accused no. 1
BENNETT,
SUSAN HILARY
Accused no. 2
RULING
OF 19 MARCH 2021
AFFIDAVIT
EVIDENCE-
SECTION 2
OF
THE
INTERNATIONAL CO-OPERATION IN CRIMINAL MATTERS ACT NO. 75 OF 1996
SPILG,
J:
INTRODUCTION
1.
The State seeks to introduce certain
evidence without leading a witness who would otherwise be subject to
cross examination. During
its argument it has identified various
legislation on which it intends to rely. Without elaboration they
deal with the admissibility
of documentary evidence relating in the
main to corporate, financial and business records under various
provisions of the Criminal
Procedure Act, 51 of 1977 (“the
CPA”) such as ss 221 and 222,
s 3
of the
Law of Evidence
Amendment Act, 45 of 1988
,
s 2(2)
of the
Prevention of Organised
Crime Act, 121 of 1998
and
s 15
of the
Electronic
Communications and Transactions Act, 25 of 2002
.
In
addition, the State relies on the provisions of
s 5
of the
International Co-operation in Criminal Matters Act no. 75 of 1996
(“
the ICCMA
”).
2.
Section 5 of the ICCMA reads:
Admissibility of
evidence obtained by letter of request
(1) Evidence obtained
by a letter of request shall be deemed to be evidence under oath if
it appears that the witness was in terms
of the law of the requested
State properly warned to tell the truth.
(2) Evidence obtained
by a letter of request prior to proceedings being instituted shall be
admitted as evidence at any subsequent
proceedings and shall form
part of the record of such proceedings if-
(a)
each
party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings; or
(b)
the
court, having regard to-
(i) the
nature of the proceedings;
(ii) the
nature of the evidence;
(iii) the
purpose for which the evidence is tendered;
(iv) any
prejudice to any party which the admission of such evidence might
entail; and
(v) any
other factor which in the opinion of the court should be taken into
account, is of the opinion that such
evidence should be admitted in
the interests of justice.
(3) The provisions of
subsection (2) shall not render admissible any evidence which would
be inadmissible, had such evidence been
given at the subsequent
proceedings by the witness from whom it was obtained.
(4) Evidence obtained
by a letter of request after the institution of proceedings shall
form part of the record of such proceedings
and shall be admitted as
evidence by the court or presiding officer which issued the letter of
request in so far as it is not inadmissible
at such proceedings.
3.
It is evident that in order to trigger s 5
the evidence sought to be introduced must have been obtained under a
letter of request
(“
LoR
”).
4.
The State relies on the LoR it procured in
terms of s 2(2) of the ICCMA to have admitted the evidence obtained
under it,
5.
Despite receiving the State’s heads
of argument dealing with the various grounds on which it sought to
introduce the documentary
evidence and the affidavits obtained under
the LoR, prior to the hearing, neither Mr Porritt nor Ms Bennett
(“
the accused”
)
initially disclosed the basis of their challenge to the introduction
of affidavit evidence save to claim that the State had not
obtained
it lawfully. Only after the State had presented its argument did
Bennett disclose that the accused challenged the lawfulness
of the
State utilising s 2(2), contending that it had been obliged to obtain
an LoR under s 2(1).
6.
The State submitted that the accused’s
argument should be dealt with once the evidence was in fact tendered.
It argued that
reliance on s 5 of the ICCMA was only one of a number
of grounds on which it sought to introduce documentary evidence
obtained
in a foreign jurisdiction.
7.
It was evident that s 5 of the ICCMA was
effectively the first prize position of the State. Not only would it
enable documentary
evidence to be admitted if the court was satisfied
that the requirements enumerated in subsection (2) (b) were met, but
the contents
of the affidavits obtained from the witness through whom
the documents were sought to be introduced may also be subject to
admission
into evidence.
I
did not wish to see the affidavits at this stage but after enquiring
about certain of their broad features which I considered
relevant for
the present enquiry, it appears that they were generally deposed to
by the person who claimed to possess the documents
in question either
in original or copy form or in whose custody and control they would
ordinarily have been kept. I also understood
that the affidavits not
only identify documents and explained the context in which they were
alleged to have come into the
deponent’s possession but
also contain responses to certain interrogatories which might go
beyond identification and
findings that could in any event be made
from the documents themselves (either individually or sequentially in
respect of the transactions
or dealings they pertain to, or may yet
be explained by other witnesses who are to be called and would be
subject to cross-examination).
In some instances the documents are
sought to be introduced because they are originals and neither
accused is agreeable at this
stage to admitting any document without
it being properly proven even if it purports to emanate from him or
her.
8.
. I ruled that the challenge attacks the
very basis on which the State applies to introduce the evidence and
that the State must
therefore satisfy the court that the
preconditions for its introduction under the ICCMA have been lawfully
complied with. It is
important that if a document or affidavit
statement is admitted into evidence that I make it clear that I am
satisfied that it
falls within one or other legislative provision and
in the case of a s2 LoR whether the requirements of subsection (2)(b)
apply
and have been satisfied.
THE
STARTING POINT
9.
The main considerations irrespective of the legislation relied
on to
introduce any affidavit evidence or to allow the admission of
documentary evidence is;
a.
The deprivation of the accused’s right to cross-examine
the
witness who deposed to the affidavit. This is such a fundamental
invasion of the accused’s right that it automatically
impacts
on the right to a fair trial
b.
The genuineness of the documents sought to be introduced.
10.
The ICCMA firstly seeks to adopt a process,
via co-operation between nations, whereby evidence available in one
country may be utilised
in the jurisdiction of another (subject
to the latter’s own safeguards as to admissibility) while
giving satisfactory
assurance that the process adopted has
legal efficacy and ensures as best as is possible that judicial
officers are engaged
bilaterally in securing the proper observance of
initiating the request in the one country and its proper execution in
the other.
Not only does this concern the observance of
protocols and judicial control over the process but also satisfies
any chain
of evidence requirement (at least from the time of
deposition to the receipt of the evidence by the trial court).
11.
At this stage the State has confined the
evidence it seeks to introduce under s 5 of the ICCMA to that
allegedly gathered in Hong
Kong pursuant to LoRs relating to five
witnesses who reside there. The State has advised that there are
similar LoRs in relation
to evidence gathered in other jurisdictions.
12.
Although at this stage the issue is
confined to the lawfulness of the process adopted by the Sate in
obtaining the LoRs, I am acutely
aware, having regard to some of the
evidence already led and the contents of the further particulars to
the indictment, that the
documents sought to be admitted via the
affidavit evidence are intended to provide a paper trail of what in
fact occurred or to
show that what was held out to have occurred, by
the entities whose affairs the State alleges were the
alter
ego
of the accused did not in fact take
place.
13.
I had also informed the accused of the
implications should the documents and the other statements contained
in the affidavits be
admitted having regard to the offences in
respect of which the evidence was sought to be introduced. They
advised that they were
so aware.
14.
The evidence sought to be introduced by the
five Hong Kong LoRs concern counts 1 to 14 of the indictment.
15.
In order to give some idea of the
seriousness of these offences and the likely nature of the documents
which the State will seek
to have admitted via the five LoRs, I will
recite certain extracts from main count 2 of the indictment which
alleged common law
fraud
“
during
the period October 1996 to 15 April 1997 …, the accused, in
concert with others or otherwise, did unlawfully, falsely
and with
the intent to defraud, give out and pretend … that:
136.1 Pan
Pacific Financial Services Limited (a subsidiary of Tigon Limited at
the time) had entered into, lawful and valid
agreements with Goldstar
Limited, Cabali Limited, and Three Oceans Finance & Trading
Limited, during October 1996. These agreements
were titled the “Pan
Pacific Client Investment Account Agreements”;
136.2 the “Pan
Pacific Client Investment Account Agreements” were entered into
with the intention to bring about
enforceable rights and obligations;
136.3 full
payment had been made for shares lawfully acquired in Tigon Limited
for Cabali Limited, Goldstar Limited and Three
Oceans Finance &
Trading Limited with Pan Pacific Financial Services Limited;
136.4 Pan
Pacific Financial Services Limited was entitled to a “performance
fee” at 31 January 1997, as a result
of managing the portfolios
of Goldstar Limited, Cabali Limited and Three Oceans Finance &
Trading Limited in terms of the “Pan
Pacific Client Investment
Account Agreements”;
136.5 at Tigon
Limited’s balance sheet date (31 January 1997) the transaction
in respect of the “performance fee”
had reached a stage
of completion and could be measured reliably;
136.6 the
“performance fee” earned by Pan Pacific Financial
Services Limited by virtue of the “Pan Pacific
Client
Investment Account Agreements”, should be included in Tigon
Limited’s group profits;
136.7 Pan
Pacific Financial Services Limited was lawfully entitled to purchase
Tigon Limited shares, in terms of the “Pan
Pacific Client
Investment Account Agreements”;
136.8 the
transactions between Tigon Limited, the accused, Pan Pacific
Financial Services Limited, Goldstar Limited, Cabali
Limited and
Three Oceans Finance & Trading Limited were at an arms length and
not artificial or simulated;
136.9 an amount
of R26 250 000-00 could and/or should have been included in Tigon
Limited’s group profits for the financial
year ending 31
January 1997;
136.10
the “performance fee” could be measured reliably
as at 31
January 1997;
136.11
the accounting for the “performance fee” was
in
accordance with generally accepted accounting practice in South
Africa;
136.12
the Tigon group consolidation workings for the year ended
31 January
1997, correctly reflected a profit before tax of R26 250 000-00 in
the income statement for Pan Pacific Financial Services
Limited;
137.
and by means of the said misrepresentations induced … to
act to their prejudice, actual or potential,
in that:
…
..
138.
WHEREAS the accused, when they gave out and pretended as aforesaid,
well knew that:
138.1 the
agreements that Pan Pacific Financial Services Limited (a subsidiary
of Tigon Limited at 31 January 1997) had entered
into with Goldstar
Limited, Cabali Limited, and Three Oceans Finance & Trading
Limited, during October 1996 were neither lawful
nor valid and were
false and/or simulated;
138.2 the
supposed contracting parties had no intention for actual rights and
obligations to arise from the “Pan Pacific
Client Investment
Account Agreements”;
138.3 Cabali
Limited, Goldstar Limited and Three Oceans Finance & Trading
Limited had not actually provided funds for
investment by Pan Pacific
Financial Services Limited and full payment had not been made for the
Tigon Limited shares which had
not been lawfully acquired;
138.4 the “Pan
Pacific Client Investment Account Agreements” contravened
section 39 of the Companies Act:
138.4.1
the effect of these arrangements was that Tigon Limited directly
or
indirectly acquired an interest in its own shares and/or;
138.4.2
Pan Pacific Financial Services Limited acquired an interest in
the
shares of its holding company, Tigon Limited;
138.5 the “Pan
Pacific Client Investment Account Agreements” were not entered
into with the intention to bring
about enforceable rights and
obligations but were intended to:
138.5.1
support the accused’s assertions that the terms of the
agreement provided that, a “performance fee” amounting to
R26 million would be recorded in Tigon’s group profits
and that
the fee was determinable and realisable;
138.5.2
manipulate the Tigon share price, by boosting the share price,
which
in turn increased the “performance fee” earned which was
to be included in Tigon group profits. Tigon Limited
was
therefore in the position to “profit” from the interest
acquired in its own shares;
138.5.3
create the impression that the shares acquired in terms of the
“Pan
Pacific Client Investment Account Agreements” formed part of
Tigon’s “free float” of shares.
138.6 Pan
Pacific Financial Services Limited was not entitled to a “performance
fee” at 31 January 1997, as it
was not a lawful and valid
contract. Even if it was a lawful contract (which it was not)
the performance fee could not be
accounted for in terms of South
African generally accepted accounting practice as at 31 January 1997.
138.7 the
transactions between Tigon Limited, the accused, Pan Pacific
Financial Services Limited, Goldstar Limited, Cabali
Limited and
Three Oceans Finance & Trading Limited were not at arms length
and were false and simulated.
138.8 the
recording and recognition of the “performance fee” was
not in accordance with generally accepted accounting
practice;
138.9 the Tigon
group consolidation workings for the year ended 31 January 1997
reflected a profit before tax of R26 250 000-00
in the income
statement for Pan Pacific Financial Services Limited which was
inaccurate and incorrect and amounted to a material
overstatement of
earnings;
138.10
…...
138.11
these transactions were simulated and/or fictitious.
16.
The basic allegations find expression in
one form or another in other offences listed under counts 1 to 14
which are said to have
been committed at the same time or
subsequently and which involve one or more of the same entities.
For
sake of completeness Pan Pacific Financial Services Limited, Goldstar
Limited, Cabali Limited and Three Oceans Finance &
Trading
Limited are all alleged to be entities registered in the British
Virgin Islands, Niue and in one case Hong Kong and in
respect of some
ostensibly managed from Hong Kong.
THE
ISSUES
17.
The accused contended that the State was
obliged to apply for the LoRs in terms of s 2(1) of ICCMA and not s
2(2). In utilising
the incorrect section, they were deprived of their
right to challenge the issue of the LoRs. They alleged that this was
done deliberately
to thwart their rights.
18.
After I heard the accused’s argument
there were a number of issues I requested the State to address me on.
After they did
so, Bennett then sought to introduce a further point,
namely that the circumstances of this case raise constitutional
issues arising
from the conduct of the prosecution in allegedly
manoeuvring itself into a position in order to deprive the accused of
their fair
trial rights and which are therefore unique circumstances
that fall outside the decisions of the Supreme Court of Appeal and
Constitutional
Court to which I will refer.
The
short answer is that the SCA and Constitutional Court decisions were
decided as far back as 2008. This was well before the accused
pleading to the charges in 2016. The decisions are based on the
interpretation of legislation not the peculiar facts of a case.
Indeed,
the Constitutional Court held that the State was obliged to utilise s
2(2) even though the accused in that case had already
been indicted,
which negates any argument that once an indictment is ready or even
served that there is no reason for further investigation.
These
issues were pertinently dealt with and rejected as appears more fully
from the extracts of the case which are cited later.
Moreover the
issue of fair trial rights is more concerned with the admission or
otherwise of the documentary or other evidence
which would fall under
s 5(2)(b) of the ICCMA in cases where the LoR was obtained under s
2(2).
DISTINCTION
BETWEEN PROCEEDING UNDER S 2(1) and 2(2) of ICCMA
Comparing
the sections
19.
Bennett had raised the lawfulness of
utilising s 2(2) immediately after the State had completed its
arguments as to admitting the
documentary evidence and the five
affidavits obtained under the LoRs. Without the full Act in front of
me at the time I expressed
concern that the State could withhold the
institution of proceedings to frustrate the right of an accused to
the apparent advantages
of challenging the procurement of evidence.
20.
An understanding of the scheme of the ICCMA
can only be gathered by having regard to s 2 in its entirety and
certain complimentary
provisions.
The
section provides:
2
Issuing of
letter of request
(1)
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.
(2)
A
judge in chambers or a magistrate may on application made to him or
her issue a letter of request in which assistance from
a foreign
State is sought to obtain such information as is stated in the letter
of request for use in an investigation related
to an alleged offence
if he or she is satisfied-
(a) that
there are reasonable grounds for believing that an offence has been
committed in the Republic or that
it is necessary to determine
whether an offence has been committed;
(b) that
an investigation in respect thereof is being conducted; and
(c) that
for purposes of the investigation it is necessary in the interests of
justice that information be obtained
from a person or authority in a
foreign State
.”
21.
It becomes immediately apparent that s 2(1)
applies during the course of “
proceedings
”
whereas s 2(2) does not. The question then is whether the legislature
left any
lacuna
in
cases where proceedings had not yet commenced.
22.
In order to answer the question regard must
be had to the definition of “
proceedings
”
in s 1 of the ICCMA. It means:
“
criminal
proceedings and any other proceedings before a court or other
tribunal, instituted for the purpose of determining whether
any act
or omission or conduct involves or amounts to an offence by any
person”
23.
Moreover the only distinction between
applying for an LoR during the course of proceedings and prior to it
is that in the former
case the accused (or a legal representative) is
entitled under s 3(1) to submit interrogatories or actually appear
(if not in custody)
at the examination in the foreign jurisdiction.
In the case where an LoR is obtained prior to the proceedings being
conducted then
no such right is afforded. It is however replaced with
other safeguards which have passed constitutional scrutiny.
More
particularly, where an LoR is sought during the course of proceedings
then under s 5(1) the evidence obtained by an LoR “
shall be
deemed to be evidence under oath if it appears that the witness was
in terms of the law of the requested State properly
warned to tell
the truth”
whereas if an LoR was obtained prior to the
proceedings then the evidence obtained pursuant to it can only be
admitted as evidence
if either the accused agrees failing which then
under s 5(2)(b) if:
“
the
court, having regard to-
(i) the
nature of the proceedings;
(ii) the
nature of the evidence;
(iii) the
purpose for which the evidence is tendered;
(iv) any
prejudice to any party which the admission of such evidence might
entail; and
(v) any other
factor which in the opinion of the court should be taken into
account,
is of the opinion that
such evidence should be admitted in the interests of justice.”
24.
In other words, the legislature considered
that the fair trial right accorded under s 5(1) in cases where a
request for an LoR was
made during the course of proceedings would be
satisfactorily protected by the safeguards introduced under s 5(2)(b)
in cases where
an LoR request was made prior to the proceedings being
instituted.
25.
This
very issue and the constitutionality of s 2(2) was determined by the
Constitutional Court in
Thint
Holdings (SA) (Pty) Ltd v NDPP; Zuma v NDPP
[2008] ZACC 14
;
2008
(2) SACR 557
(CC)
. Moreover the arguments raised by the accused
were pertinently dealt with in its judgment
[1]
.
In particular the Constitutional Court held that:
a.
The
meaning of s 2 (1) is clear. It means that “
the
letter of request is issued in court and not by a judge in chambers
or a magistrate. The application is therefore made to the
court by
the investigator during, and not outside of, the criminal
proceedings.”
[2]
The court endorsed the
judgments of the SCA in
Zuma and Others v National Director of
Public Prosecutions
2008 (1) SACR 298
(SCA) and of the High Court
in
S v Zuma and Others
2006 (2) SACR 69
(D).
b.
There is no clear line separating obtaining
evidence and obtaining information. In this regard the court said
that:
“
it
should be borne in mind that the State is entitled to tender evidence
that seeks to strengthen its case at the criminal trial.
Indeed, the
State is under an obligation to prosecute crime as effectively as it
lawfully can. In our constitutional democracy,
the courts must
ensure, in the interests of justice, that fairness prevails and
litigants are not oppressed or evidence suppressed.
The courts must
also ensure that a litigant's right to a fair trial under s 35 of the
Constitution is protected.”
[3]
Later the court also said
that:
“
To
understand 'investigation' as referring only to the former process
and not the latter would be to adopt a meaning of s 2(2)
incompatible with the manner in which criminal investigations are
undertaken. In our view, a more functional and appropriate
understanding
of s 2(2) would recognise that the two processes are
inevitably intertwined and that 'investigation' in s 2(2) should be
read accordingly.
[4]
Furthermore,
information is not restricted to new and/or unknown knowledge. It
extends to any knowledge, known or unknown. Indeed,
as the applicants
argue, the NDPP has had the information contained in the 14 documents
available to him since 10 October 2001,
in the form of copies. He
therefore did not seek new knowledge. What he sought was to obtain
the original documents to counter,
as he contended, the risk of the
applicants' objection to the use of the copies.
[5]
The
NDPP employed these investigative and information-gathering exercises
with a view to building a case against the applicants
for a future
trial. That is a legitimate and lawful strategy to adopt. To
distinguish between information and evidence as
the applicants
did is therefore to draw a false distinction. In our view, therefore,
the applicants' argument that the purpose
for which the original
documents were sought in this case falls outside the scope of s 2(2)
must be rejected.”
[6]
c.
In response to the argument that the
trial had commenced once Mr Zuma had been indicted and therefore s
2(2) could not be relied
on even if the State had originally
withdrawn that first indictment the court identified two reasons why
the argument could not
succeed.
The
first was that:
“
As
soon as the criminal matter had been struck from the roll by Msimang
J, therefore, the criminal proceedings were terminated and
the
proceedings were no longer pending.
At
the time, Mr Zuma had not yet pleaded to the charge
.
Even if there might have been an intention on the part of the NDPP at
that stage to reinstitute proceedings, there was no guarantee
that he
would actually do so. But it would not matter even if the
probabilities were that he would do so.”
(emphasis
added)
[7]
It is evident that
stripped of the issue regarding the withdrawal of the initial
indictment, the court made the point that Mr Zuma
had not yet
pleaded.
This echoes the reason
for the decision (“
the ratio
”) of
Zuma (SCA)
where Nugent JA said in relation to when s 2(1) applies:
“
The
word 'proceedings' might have various meanings depending upon its
context. It is clear that it is used in s 2(1) to mean the
trial of a
person on a criminal charge, which commences when the person who
stands accused is called upon to plead to the charge.
That
construction seems to me to accord with the ordinary meaning of the
term in the context in which it is used, and is fortified
by the
provisions of s 3(1), s 3(3)(a) and (b), s 5(4) and s 6,
all of which contemplate evidence being placed before
a court after
issue has been joined. The clear distinction between the two sections
is that s 2(1) allows for evidence to be taken
in a foreign state in
the course of a trial, while s 2(2) allows for assistance to be
sought in the course of a criminal investigation
that precedes a
prosecution.”
[8]
The corollary to this is
that a court cannot be called on to apply s 2(1) if an accused has
not yet pleaded although an indictment
has been issued. This
situation arose in
Zuma (KZN)
where Combrink J held that
proceedings in a criminal trial commence only when the accused has
pleaded. The court said:
“
unlike
in civil cases where the lis between the parties is
established at close of pleadings, in criminal matters only
after
pleading to the charge is the lis established between the
accused and the State. It is, in my view, doubtful whether
evidence
on commission can be led before the accused has pleaded
.”
[9]
The second reason why the
argument could not succeed also answers the argument raised by the
accused that there is a
lacuna
between s 2(1) and 2 (2) where
the State cannot use either provision. This is what the court said:
“
Secondly,
the effect of this argument is that until the trial resumed, the
NDPP would not have been entitled to use either
s 2(1) or 2(2). This
would be an untenable result. It is in the interests of a speedy and
fair trial that the State should prepare
its case as fully as
possible before proceeding to court. A speedy and fair trial is not
only a constitutional obligation placed
on the State, it is also a
right of the applicants themselves and in the interests of justice.
If the interpretation of s 2(2) suggested
by the applicants were
to stand, it would frustrate the very objectives of a speedy trial.”
The
court also referred to the clear wording of s 5(4) which leaves no
doubt that s 2(1) can only apply once a trial has actually
commenced.
[10]
26.
Earlier I mentioned the protection which s
2(2) provides by reason of the accused not having the opportunity to
attend an examination
conducted abroad and cross-examine the witness
nor has the opportunity of putting his or her own interrogatories as
would be the
case if s 2(1) applied.
The Constitutional Court
in
Thint
specifically mentioned the protection provided in
relation to evidence sought to be introduced by a s 2(2) LoR. It
said:
“
Finally,
we should add that the admissibility of any documents obtained under
s 2(2) at the criminal trial falls to be determined
in the light
of s 5(2) of the Act. That section regulates the approach the court
must take in relation to admissibility. One
of the factors to be
taken into account is any prejudice to any party which the admission
of such evidence might entail
.”
[11]
27.
If the law was otherwise, then in the
present case the State would not have been able to bring a s2(1)
application despite the accused
receiving their indictment in 2006.
The reason is that they only pleaded to the charges in 2016.
28.
In view of the clear case law it is
unnecessary to engage in an examination of when the State could have
served the indictment or
whether it deliberately withheld doing so
before it sought to obtain the LoRs. The reason is that it would have
been unable to
bring a s 2(1) application since the accused had not
yet pleaded and although receiving the indictments in 2006 and the
matter
coming before Borchers J, throughout the five or so years that
the judge dealt with the matter before recusing herself the accused
had still not pleaded.
29.
In a fundamental way the accused’s
argument relies on a heads I win tails you lose proposition: If s
2(1) applied, then the
evidence could not have been procured prior to
2016 despite the indictment having been served in 2006.
30.
I am satisfied that the LoRs were lawfully
obtained under s 2(2) of the ICCMA. No costs order is to be made
under the provisions
of the ICCMA as it was not argued before me.
31.
Accordingly the matter will proceed to the
s 5(2) phase in regard to the admissibility of the documents and the
affidavit evidence
under the five LoRs.
32.
For sake of completeness the following
order was then made:
1.
The five letters of request in respect of Christopher David Ian
Gordon, Michael
Lintern-Smith, Jane Adamczyk, Herbert Adamczyk and
Alan Kenneth Mercer are declared to have been lawfully obtained under
s 2(2)
of the International Co-operation in Criminal Matters Act no.
75 of 1996 (“the ICCMA”)
2.
The trial will proceed to the s 5(2) phase in terms of the ICCMA with
regard
to the admissibility of the documents and the affidavit
evidence obtained under the aforesaid letters of request
3.
No order as to costs
SPILG,
J
The
reasons for the decision were read out during a virtual court hearing
on 19 March 2021.
DATES
OF HEARING:
8
and 9 March 2021
DATE
OF JUDGMENT:
19
March 2021
FOR
THE STATE:
Adv. EM
Coetzee SC
Adv.
JM Ferreira
FOR
ACCUSED ONE AND TWO:
In person
[1]
Thint
at
paras
16, 17, 25 and 31.
At
para 31 of the judgment the court identified two if the issues
regarding s 2(2) as follows:
“
The legal
questions concerning the proper interpretation of s 2(2) of the Act
that must be decided in this case are twofold: (a)
may the State use
s 2(2) to procure original documents of which it already has copies;
and (b) does the fact that the applicants
had been previously
charged, though that case had been struck from the roll, prevent the
State from using s 2(2) in the circumstances
of this case?”
[2]
Id at para 26
[3]
Id para 36
[4]
Id para 36
[5]
Id para 37
[6]
Id para 38
[7]
Id para 42
[8]
Id para 10
[9]
Zuma(KZN)
para 6
[10]
Section 5(4) of IMCCA provides that;
“
Evidence
obtained by a letter of request after the institution of proceedings
shall form part of the record of such proceedings
and shall be
admitted as evidence by the court or presiding officer which
issued the letter of request in so far
as it is not
inadmissible at such proceedings
[11]
Id para 45