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[2007] ZASCA 135
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Zuma and Another v National Director of Public Prosecutions (232/07) [2007] ZASCA 135; 2008 (1) SACR 298 (SCA); 2007 JDR 1141 (SCA); [2008] JOL 21053 (SCA) (8 November 2007)
Links to summary
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
CASE
NO
: 232/07
In
the matter between :
JACOB
GEDLEYIHLEKISA
ZUMA First
Appellant
THINT
HOLDINGS (SOUTHERN AFRICA) (PTY)
LTD
Second
Appellant
THINT
(PTY)
LTD
Third
Appellant
and
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
Respondent
Before:
FARLAM, NUGENT, CLOETE, PONNAN & MLAMBO JJA
Heard:
21 SEPTEMBER 2007
Delivered:
8 NOVEMBER 2007
Summary:
Letter of request issued under s 2(2) of the International
Co-operation in Criminal Matters Act 1996 – whether provisions
of the section complied with – whether appellants have standing
to challenge the validity of the request.
Neutral
citation: This judgment may be referred to as
J G Zuma v NDPP
[2007] SCA 135 (RSA)
J U D G M E N T
NUGENT
JA
NUGENT
JA
:
[1]
On 2 April 2007 the Deputy Judge President of the High Court at
Durban (Levinsohn DJP) issued a letter requesting the
Attorney-General
of the Republic of Mauritius to transmit to the
Republic of South Africa fourteen documents
[1]
that are in the possession of the authorities in Mauritius and to
obtain and to transmit statements as to their authenticity. In
doing so the learned judge purported to exercise the authority that
is conferred upon a judge in chambers or a magistrate by s
2(2) of
the International Co-operation in Criminal Matters Act No. 75 of
1996. The letter of request was issued at the instance
of the
Directorate of Special Operations (a division of the office of the
National Director of Public Prosecutions). The
documents and
authenticating statements are said by the Directorate to be required
as evidence in any prosecution of the appellants
that might occur.
The appellants say that Levinsohn DJP ought not to have issued the
letter of request and they now appeal,
with the leave of the learned
judge, against his decision to do so.
[2]
The decision to issue the request has generated a record of fourteen
volumes and voluminous heads of argument. That impressive
volume of paper ought not to obscure what is in issue. The
learned judge has done no more than place a judicial imprimatur
upon
a request to the Attorney-General of Mauritius to provide assistance
for a possible prosecution. His decision has not compromised
or even
affected any rights of the appellants. It was submitted on
behalf of the appellants that their ‘fair trial
rights’
(the right of every accused person to a fair trial that is protected
by s 35(3) of the Bill of Rights) have in some
way been compromised
but that is not correct. Their right to be tried fairly, if
they are tried at all, is unaffected by
the issue of the letter of
request, and will remain unaffected even if the request is acceded
to. It is no doubt so, as submitted
on their behalf, that the
evidence that is sought to be obtained by the letter of request might
result in or contribute to their
conviction, but it will do so only
if it is admitted at a trial, and their right to object to the
admission of the evidence, on
any ground that might properly be
available to them, remains intact. Finally, it was submitted
that the decision to issue
the letter of request has compromised the
appellants’ right not to have such a request issued, but that
begs the question
whether they have such a right at all and I will
return to that later in this judgment. But before doing so I will set
out briefly
the circumstances in which the letter of request came to
be issued and deal with the grounds upon which it was submitted that
Levinsohn
DJP erred in issuing it.
[3]
The documents that are sought by the NDPP are at present in the
possession of a body in Mauritius known as the Independent Commission
Against Corruption (ICAC). They came into the possession of the
ICAC in consequence of an order that was made by the Supreme
Court of
Mauritius on 5 October 2001. The order authorised the Director
of the Economic Crime Office of that country (the
Director) to enter,
amongst others, the premises of a company known as Thales
International Africa Ltd (formerly Thompson-CSF Africa
Ltd) and those
of one of its officers, Mr Alain Thetard, and to search for and
remove documents of the kind specified in the order.
The order
was applied for by the Director at the request of the Directorate of
Special Operations.
[4]
An official in the office of the National Director of Public
Prosecutions (the NDPP), Mr Downer SC, was present at the time
the
order of the Supreme Court of Mauritius was executed. Mr Downer
was given copies of the fourteen documents that are now
in issue and
the originals were retained by the Director. (The Economic
Crime Office in Mauritius has since been abolished
and has been
succeeded by the ICAC.)
[5]
About a week after the order was executed Thales International Africa
Ltd and Mr Thetard (and another company whose involvement
in the
matter has become immaterial) launched proceedings in the Supreme
Court of Mauritius for, amongst other things, orders restricting
the
use that could be made of the documents that had been seized.
The application culminated in an undertaking being given
by the ICAC
(recorded by the Supreme Court on 27 March 2003) not to communicate
any of the documents to any person or authority
unless it was
authorised to do so by order of a court in Mauritius. (The
other terms of the agreement are not now material.)
[6]
During June 2005 the first appellant (Mr Zuma) was indicted on
charges of corruption, and in November 2005 the second and third
appellants (Thint Holdings and Thint respectively) were similarly
indicted. They were called upon to answer to the charges
in the
High Court at Durban on 31 July 2006.
[7]
On 7 December 2005 the NDPP sought to secure possession of the
original documents (and authenticating evidence) that are now
in
issue for use as evidence in the impending trial by invoking the
provisions of s 2(1) of the Act.
[2]
That section permits ‘a court or the officer presiding at
proceedings’, in prescribed circumstances, to issue
a letter of
request for assistance from a foreign state to obtain ‘such
evidence as is stated in the letter of request for
use at such
proceedings’. On 22 March 2006 Combrinck J refused to
issue the request on the grounds that s 2(1) conferred
authority only
upon a court that was seized of criminal proceedings and the
application was postponed to be heard by the court
that was scheduled
to try the appellants.
[8]
On the day that the trial of the appellants was due to commence the
prosecution applied for the trial to be postponed. The application
was argued before Msimang J and on 20 September 2006 the learned
judge ordered that the postponement be refused and he struck the
matter from the roll.
[9] The NDPP then brought the application that is the
subject of this appeal (it was lodged on 4 December 2006) in reliance
upon
the provisions of s 2(2) of the Act. That section authorises a
judge in chambers, or a magistrate, upon application to him or her,
to 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.’
Although
the Act permits such an application to be brought ex parte the NDPP
served a copy on the appellants in accordance with
an earlier
agreement to do so. Answering and replying affidavits were filed and
the application was considered by Levinsohn DJP
in open court on 22
March 2007. The learned judge issued the letter of request on 2
April 2007.
[10]
It was submitted on behalf of the appellants that because they were
indicted, and the indictments have not been
withdrawn, ‘proceedings’
as contemplated by s 2(1) continued against them at the time the
application was considered
by Levinsohn DJP, with the result that he
was not authorised to exercise the authority that is conferred by s
2(2). I do
not think that is correct. 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,
[3]
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.
Notwithstanding that the appellants have been indicted a trial on the
charges has yet to commence (it was struck from the roll
before the
appellants were called upon to plead) and it was competent for
Levinsohn DJP to exercise the authority that is conferred
by s 2(2).
[11]
The further submissions that were pressed before us by the appellants
are interrelated. They all arise from
the purpose for which the
documents are sought. I have already pointed out that the NDPP
is well aware of what the documents
contain and is in possession of
copies. (Copies were given to Mr Downer in Mauritius immediately
after they were seized.)
The appellants have already intimated
to the NDPP that if they are ever brought to trial they will object
to the introduction into
evidence of copies of the documents. The
sole purpose for which the NDPP now requires the originals of the
documents is to overcome
such an objection by proffering the original
documents as evidence in the possible trial.
[12]
It was submitted on behalf of the appellants that s 2(2) of the Act
is not available to obtain assistance for the
purpose of securing
evidence for a prosecution. It was submitted that s 2(2)
permits assistance to be sought only where it
is ‘necessary’
to do so in order to obtain ‘information’ for purposes of
an ‘investigation’
into possible criminal conduct.
Such an investigation, so it was submitted, is confined to making
enquiries to determine
whether an offence has been committed, from
which it follows that the ‘information’ that might be
sought is confined
to knowledge that is as yet unknown to the
investigator. Once it has been established that an offence has
been committed,
so the submission went, the authority that is
conferred by s 2(2) to obtain assistance comes to an end. Any
further assistance
that might be required to secure evidence for
production in a prosecution that might follow may only be sought
under the provisions
of s 2(1). What was sought in the present
case, so it was submitted, was not ‘information’ in the
sense that
I have described, and the purpose for which the documents
were sought cannot be said to have been ‘necessary’ for
the
purpose of an ‘investigation’ of that kind.
[13]
I think that is an unduly narrow construction of the section. I
have already said that the provisions of
s 2(1) are designed to
enable a court before which an accused person is being prosecuted, or
the presiding officer at such a trial,
to have evidence placed before
it that is obtainable only in a foreign state. The construction that
the appellants place on s 2(2)
would mean that once a criminal
investigation has established that an offence has been committed,
evidence in a foreign state to
prove the commission of the offence
may only be secured by the prosecution after a trial has commenced.
In my view that would
be an absurd result that could not have been
intended by the legislature.
[14]
A criminal investigation, in ordinary language, is conducted not only
to inform the investigator whether an offence
was committed, but also
to gather evidence that will prove its commission in due course.
I see no reason to give the word
the restricted meaning that is
contended for by the appellants. I think it follows that the
word ‘information’
is similarly not confined to knowledge
of whether an offence was committed, and least of all to knowledge
that is as yet unknown,
but extends to known facts recorded in
documentary form that might provide evidence of the commission of the
offence. That
construction is supported by the provisions of s
5(2), which contemplates a request for assistance yielding evidence
that might
be admissible in subsequent criminal proceedings.
[4]
In my view what is required to be shown under s 2(2) is only that a
criminal investigation (which includes the gathering
of evidence for
a prosecution) is underway and that it is necessary to elicit the
assistance of a foreign state to obtain information
(which includes
known facts in documentary form) for purposes of that criminal
investigation. In my view the section plainly
permitted
assistance to be sought to obtain possession of the documents and
authenticating statements that are now in issue and
Levinsohn DJP
cannot be faulted for having issued the letter of request.
[15]
But the matter does not end there. I pointed out earlier in this
judgment that the issuing of the letter of request
was not definitive
or dispositive of any rights of the appellants. That naturally
raised the question whether the decision
of Levinsohn DJP was even
appealable,
[5]
but I think the matter goes even further. It is true, as
counsel for the appellants reminded us, that the rule of law and
the
principle of legality requires state conduct (which includes the
conduct of a judge) to be in accordance with law, but it does
not
follow that it might be challenged when rights are not affected by
the conduct. The courts do not generally concern themselves
with academic or abstract questions of law.
[16]
Numerous cases have considered in what circumstances a person might
be entitled to initiate, or intervene, in legal
proceedings that are
aimed at vindicating rights, some of which were referred to in
support of the submission that the appellants
had standing to
challenge the validity of the decision to issue the letter of
request. I do not think those cases are of
assistance.
All those cases were concerned, in one form or another, with
proceedings to vindicate rights. The question in
each case was
whether the person concerned had sufficient interest in the
vindication of the rights that were in issue to entitle
him or her to
initiate or intervene in the proceedings. Thus there is a line
of cases in which decisions impacting upon the
rights of the public
at large were sought to be impugned, raising the question whether an
individual had a peculiar interest that
gave him or her standing to
vindicate those rights. One of the earliest cases of that kind
was
Dalrymple v
Colonial Treasurer,
[6]
which has been endorsed in numerous subsequent cases,
[7]
in which it was said that the ‘general rule of our law is that
no [person] can sue in respect of a wrongful act, unless it
constitutes the breach of a duty to him by the wrongdoer, or unless
it causes him some damage in law’.
[8]
Although a broader approach has since been taken in
constitutional matters, once more that is in the context of the
adjudication
of rights.
[9]
There have also been cases in which a person has sought to intervene
in proceedings in which the rights of others are to
be determined.
There it has been held that a party may intervene in litigation that
is not determinative of his or her own
rights only if he or she has a
‘direct and substantial interest’ in the litigation
(
Amalgamated
Engineering Union v Minister of Labour
[10]
)
which has been explained as ‘the right that is the
subject-matter of the litigation.’
[11]
The present case is quite different. A court that is asked to
issue a letter of request is not called upon to pronounce
upon or
adjudicate any rights at all. It is asked to do no more than
place its imprimatur upon a request for inter-state
assistance.
[17]
It has nonetheless been held, in
Kolbatschenko
v King NO,
[12]
that the validity of a letter of request might indeed be challenged.
In that case the foreign state was requested to take
all steps
necessary to obtain certain documents and information, if necessary
by warrants for search and seizure. It was
held that the
applicant had standing to challenge the validity of the letter of
request because he was ‘closely connected’
to the
entities whose property was liable to be seized under the warrants
that were requested.
[13]
But what is more important for present purposes is that the court
went on to say if that was insufficient to give the applicant
standing then ‘the fact that the applicant is at risk of being
prosecuted is…sufficient to elevate his interest to
what is
required in that regard…’.
[14]
[18]
In a decision of the High Court at Pretoria that was delivered
shortly before this appeal was heard Van der Merwe
J dismissed an
application to set aside a letter of request (the applicant in that
case was Mr Zuma) on the ground that the applicant
had no standing to
contest the validity of the letter of request.
[15]
Referring to the finding in
Kolbatschenko
the learned judge
said the following:
‘
If the court in the
Kolbatschenko
judgment…was of the opinion
that the risk of being prosecuted on its own is enough to clothe a
person whose affairs
[are] to be investigated with locus standi, I
find myself in disagreement with that finding.’
(The
learned judge also distinguished the decision in
Reuters
Group Plc v Viljoen NO
2001 (2) SACR 519
(C). In my view that case is also at least
distinguishable from the case before us and for that reason I have
not dealt with it.)
[19]
I respectfully associate myself with the views of Van der Merwe J.
Underlying the reasoning in
Kolbatschenko
appears to be the assumption that a person who faces the risk of
prosecution if a warrant for search and seizure is executed has
standing to challenge the validity of the warrant and hence, by
parity of reasoning, that he or she also has standing to challenge
the validity of a request for the issue of such a warrant. None
of the cases that were referred to in
Kolbatschenko
support that
reasoning. In all those cases the applicant who challenged the
validity of the warrant was threatened with an
invasion of his or her
rights of privacy and property if the warrant was executed. I
do not think that a person who is at
risk of prosecution if a warrant
for search and seizure is executed has standing to challenge the
validity of the warrant for that
reason alone. That being so it also
cannot afford him or her standing to challenge the validity of a
letter requesting that such
a warrant be issued and in my view
Kolbatschenko
was incorrectly decided in that respect.
[20]
That the documents that are sought in the present case might assist
in any prosecution of the appellants that might
occur does not seem
to me to entitle them to challenge the validity of the letter of
request and I see no other grounds that might
entitle them to do so.
That the appellants were given notice to attend the proceedings and
were afforded the opportunity
of being heard by the learned judge
does not seem to me to take the matter further. It follows that the
appellants also have no
standing to prosecute an appeal against the
decision of the learned judge and on that ground alone the appeal
must fail.
I do not think the matter warranted the employment
of three counsel.
[21] The appeal is dismissed with costs that
include the costs of two counsel.
_____________________
R.W. NUGENT
JUDGE OF APPEAL
FARLAM JA)
CLOETE JA) CONCUR
PONNAN JA)
MLAMBO JA)
[1]
At times the record refers to thirteen documents
but the discrepancy is not material for present purposes.
[2]
Section 2(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.’
[3]
‘
Proceedings’ are defined in s 1 of
the Act to mean ‘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.’
[4]
‘
Evidence’ is defined in s 1 to
include ‘all books, documents and objects produced by a
witness’.
[5]
See the general rule in
Zweni
v Minister of Law and Order
1993 (1)
SA 523
(A) 532J-533A, which has been applied by this court on
numerous occasions (for example,
Wallach
v Lew Geffen Estates CC
[1993] ZASCA 39
;
1993 (3) SA
258
(A) 263F-G;
Trope v South African
Reserve Bank
[1993] ZASCA 54
;
1993 (3) SA 264
(A)
267D-G) with limited exceptions (
Moch v
Nedbank Travel (Pty) Ltd t/a American Express Travel Service
1996 (3) SA 1
(A) 10E-H;
Phillips v
National Director of Public Prosecutions
2003 (6) SA 447
(SCA) paras 19 and 23). Counsel for the
appellants relied particularly on
Beinash
v Wixley
[1997] ZASCA 32
;
1997 (3) SA 721
(SCA)
729J-730B but that applies to when and not whether a decision may be
brought on appeal.
[6]
1910 TS 372.
[7]
For example,
Roodepoort-Maraisburg
Town Council v Easter Properties (Pty) Ltd
1933 AD 87
at 101-2;
Cabinet of the
Transitional Government for the Territory of South West Africa v
Eins
1988 (3) SA 369
(A) 388B-I;
Jacobs v Waks
1992 (1) SA 521 (A) 533 J-534E.
[8]
Per Innes CJ at 379.
[9]
See
Ferreira v Levin
NO; Vryenhoek v Powell
NO
1996 (1) SA
984
(CC) para 165;
Minister of Home
Affairs v Eisenberg & Associates
[2003] ZACC 10
;
2003 (5) SA 281
(CC) para 28.
[10]
1949 (3) SA 637 (A).
[11]
Henri Viljoen (Pty) Ltd v Awerbach Brothers
1953 (2) SA 151
(O) 169H. See, too,
United
Watch & Diamond Co. (Pty) Ltd v Disa Hotels Ltd
1972 (4) SA 410
(C) and cases there cited, which are to similar
effect.
[12]
2001 (4) SA 336 (C).
[13]
At 349B.
[14]
At 349E-F.
[15]
Ex parte National Director of Public
Prosecutions: In re an Application for the Issuing of a Letter of
Request in terms of Section
2(2) of the International Co-operation
in Criminal Matters Act, No 75 of 1996
unreported decision dated 14 September 2007 under Case No. 3771/07.