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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
Sitting in PRETORIA
CASE NO: GLD $$40/06
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED. YES
15 August 2025 mC ,
SIGNATUR
THE STATE
Vv
PORRITT, GARY PATRICK Accused no. 1
BENNETT, SUSAN HILARY Accused no. 2
RULING OF 15 AUGUST 2025
AFFIDAVIT EVIDENCE UNDER THE INTERNATIONAL CO-OPERATION IN CRIMINAL MATTERS
ACT NO. 75 OF 1996
(Mr Mercer and Mr and Mrs Adamczyk)
SPILG, J:
INTRODUCTION
1. The State has sought to introduce certain evidence emanating from Hong Kong
without leading a witness who would otherwise be subject to cross examination.
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It seeks to do so inter alia under the provisions of s 5 of the International Co-
operation in Criminal Matters Act no. 75 of 1996 (“fhe 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;
(ji) 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.
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(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. Evidence is defined in s 1 to “include all books, documents and objects produced
by a witness”.
One’s instinct against receiving affidavit evidence from lay witnesses in criminal
cases may cause one to reach out for the eusdem generis aid to interpretation.
However it is clear from provisions such as s 2(2) and s 3(2) that the procuring of
evidence cannot be limited to obtaining documentary evidence from a person in
a foreign jurisdiction (termed the “requested State” in the ICCMA).
This is so because section 2(2) allows for the obtaining of “information” from a
person in the requested State, s 3(2)(a) enables the authority in the requesting
State (i.e. the State where the criminal trial is to be held) to submit interrogatories
which may be put at the examination of the person required to attend such
examination in the requested State.
4. This is also evident from the way the Hong Kong authorities understood their
function as a requested State. The Hong Kong jurisdiction's equivalent of our
ICCMA is the Mutual Legal Assistance in Criminal Matters Ordinance (Cap. 525).
Although the Hong Kong legislation came into effect in 1997, its understanding of
its international responsibility as a requested State appears from ss10(1) which
distinguishes between the taking down of evidence and the production of a
document (which falls under the category of a “thing” for the purposes of the
legislation), By contrast, subsection (b) to both sets of legislation is concerned
with the production of a thing” which “in the case of a document, may be a copy
of the document certified by the magistrate to be a true copy”.