Thint Holdings (Southern Africa) (Pty) Ltd and Another v National Director of Public Prosecutions, Zuma v National Director of Public Prosecutions (CCT 90/07, CCT 92/07) [2008] ZACC 14; 2008 (2) SACR 557 (CC); 2009 (1) SA 141 (CC); 2009 (3) BCLR 309 (CC) (31 July 2008)

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[2008] ZACC 14
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Thint Holdings (Southern Africa) (Pty) Ltd and Another v National Director of Public Prosecutions, Zuma v National Director of Public Prosecutions (CCT 90/07, CCT 92/07) [2008] ZACC 14; 2008 (2) SACR 557 (CC); 2009 (1) SA 141 (CC); 2009 (3) BCLR 309 (CC) (31 July 2008)

Links to summary

CONSTITUTIONAL
COURT OF SOUTH AFRICA
[2008]
ZACC 14
Case
CCT 90/07
THINT HOLDINGS (SOUTHERN AFRICA) (PTY) LTD                              First
Applicant
THINT (PTY) LTD                                                                                      Â
Second
Applicant
                                                                                                                                        Â
versus
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS                                   Respondent
Case
CCT 92/07
JACOB GEDLEYIHLEKISA ZUMA                                                                      Â
Applicant
versus
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS                                   Respondent
Heard on         :           11-13 March
2008
Decided on     :           31 July 2008
JUDGMENT
THE COURT:
Introduction
[1]
These two cases concern the lawfulness of a
letter of request issued in terms of section 2(2) of the International
Co-operation
in Criminal Matters Act 75 of 1996 (the Act)
[1]
by Levinsohn DJP of the Durban
High Court.  The letter of request requested the Attorney-General of Mauritius to transmit to the
South African National Director of Public Prosecutions (NDPP) 14
original documents in the possession of the Mauritian authorities,
together
with statements as to their authenticity.  It is the decision to issue the
letter of request that is the subject matter
of this judgment.
[2]
The two applications before this Court were
heard together.  They are for leave to appeal against the decision of the
Supreme Court
of Appeal handed down on 8 November 2007.
[2]
 The Supreme Court of Appeal
unanimously dismissed the applicants’ appeal against the High Court
[3]
decision of 2 April 2007.
The parties
[3]
In the one application the first applicant is
Thint Holdings (Southern Africa) (Pty) Ltd, a company incorporated in South Africa
and carrying on business in Pretoria.  The second applicant is Thint (Pty) Ltd, an
incorporated company carrying on business at
the same address.  Both companies
are subsidiaries of Thales International Africa Ltd (formerly Thompson
CSF-Africa Ltd) and together
they will be referred to as the Thint companies.  In
the second application the applicant is Mr Jacob Gedleyihlekisa Zuma (Mr Zuma).

 A reference in this judgment to “the applicants” shall refer to the applicants
in both matters, unless the context indicates
otherwise.  The respondent in
both applications is the National Director of Public Prosecutions.
Background
[4]
On 5 October 2001, an order was made by the Mauritian Supreme Court authorising the search of the premises of Thales International

Africa Ltd (Thales) and of Mr Alain Thétard (Mr Thétard), who was at all relevant
times a director of both Thint companies and
Thales.  The order also authorised
the seizure of certain specified documents to be found on the premises.
[5]
The order was obtained by the Directorate of
Special Operations (DSO), a unit within the office of the National Prosecuting Authority.Â

The request formed part of an investigation conducted by the DSO into alleged
corruption concerning the so-called “arms deal”
in which the applicants are implicated.
[4]
 Advocate Downer SC, a
representative of the NDPP, was present at the search of the premises.  While
the original documents were
retained by the Independent Commission Against
Corruption in Mauritius, Advocate Downer returned to South Africa with copies
of
the documents.
[6]
One week after the search and seizure, Thales
and Mr Thétard launched proceedings in the Mauritian Supreme Court for an order
restricting
the use of the original documents contained on diskette and in the
possession of the Independent Commission against Corruption.
 Thales and Mr Thétard
contended that the information contained on the seized diskettes was not
limited to information pertinent
to the letter of request and the order of the
Mauritian Supreme Court.  Therefore, they averred that material belonging to
both
Thales and Mr Thétard was indiscriminately seized.  The application by Thales
and Mr Thétard was set down for hearing on 26 October
2001.  After several
postponements it was eventually heard on 27 March 2003.  On that day, the parties reached an agreement.  Amongst
other assurances given, the Independent
Commission Against Corruption undertook not to communicate any of the documents
to any
person or authority unless it was authorised to do so by an order of a
Mauritian court.
[7]
After the conviction of Mr Schabir Shaik (Mr
Shaik) in 2005,
[5]
the National Prosecuting Authority decided to charge Mr Zuma and the Thint
companies with certain offences including corruption.
 Their trial was set down
for hearing on 31 July 2006.
[8]
The NDPP sought to obtain the original documents
in case the applicants objected to the admissibility of the copies.  It was for

that reason that the NDPP applied to the Durban High Court (the High Court) for
the issue of a letter of request.
[6]
 The letter of request requested the Mauritian authorities to furnish the original
documents obtained during the search of October
2001, as well as proof of their
authenticity.  This application was made in terms of section 2(1) of the Act.
[7]
[9]
On 22 March 2006 the High Court declined to issue the letter of request, on the ground that section 2(1) conferred authority
to issue
a letter of request only upon the court seized with the relevant
criminal proceedings.  Given that criminal proceedings had already
been
instituted, the High Court referred the application for the letter of request to
the trial court.
[8]
Â
However, on 20 September 2006, the trial court per Msimang J refused the state’s
application for a postponement and struck
the criminal proceedings from the
roll.
[10]
On 12 December 2006, the NDPP brought a new
application for the issue of a letter of request, this time under section 2(2)
of the
Act.  Whereas under section 2(1) a letter of request may be issued by
the court during criminal proceedings, section 2(2) may be
utilised as soon as
an investigation is underway.
[9]
Â
Although the Act permits an application under section 2(2) to be brought ex
parte, the NDPP nevertheless served notice of the
application on the applicants,
in accordance with an earlier agreement to do so.  The application was heard
before Levinsohn DJP
on 22 and 23 March 2007.
High Court
[11]
Before Levinsohn DJP, the NDPP argued that, once
the Court was satisfied that the application met all three jurisdictional
requirements
set out in section 2(2), the Court should issue the letter of
request.
[12]
The applicants opposed, insisting that the
applicable provision was section 2(1) and not section 2(2).  They contended
that even
if the criminal proceedings had been struck from the roll, those
proceedings were still pending and thus section 2(2) was inapplicable.
 Levinsohn
DJP rejected this argument.  He found that once a case is struck from the roll prior
to the plea, criminal proceedings
are terminated.
[10]
[13]
Levinsohn DJP further concluded that the
jurisdictional requirements of section 2(2) of the Act had been satisfied.  In the
result,
he issued the letter of request on 2 April 2007.  It requested the Attorney-General of Mauritius to transmit to South Africa the
original 14
documents in the possession of the Independent Commission Against Corruption and
to obtain and transmit statements
from the relevant authorities as to their
authenticity.  It is Levinsohn DJP’s decision to issue the letter of request in
terms
of section 2(2) that is the subject of this appeal.
Supreme Court of Appeal
[14]
The applicants appealed against the decision of
the High Court.  Dismissing the appeal, the Supreme Court of Appeal, per Nugent

JA, held that the applicants had no standing to appeal against the decision to
issue the letter of request.
[11]
Â
Furthermore, the Court concluded that even if they did have standing, the
applicants would have failed on the merits of the case
as the jurisdictional
requirements of section 2(2) had clearly been met.
[12]
Constitutional Court
[15]
In this Court,
Mr Zuma alleged that the
issue of the letter of request resulted in an infringement of his right to
dignity
under section 10 of the
Constitution.
[13]
 He submitted that the contents of the letter of request, together with the
fact that it was issued by a judge, would incline
any reader to conclude that he
is guilty of corruption.
[14]
[16]
Mr Zuma also alleged the infringement of his right to a fair
trial under section 35(3).
[15]
Â
This argument is similar to the Thint companies’ contention that by denying
them standing to challenge the validity of the
letter of request, the decision of
the Supreme Court of Appeal infringed their constitutional rights and reflected
a failure to
apply the provisions of section 39(2) of the Constitution.
[16]
Â
Mr Zuma further alleged that the ruling by the Supreme Court of Appeal infringed
his right of access to courts under section
34.
[17]
[17]
The applicants also alleged non-compliance with the principle of
legality in the issuing of the letter of request.  They averred
that a letter
of request cannot be lawfully issued unless the jurisdictional facts set out in
section 2(2) are present and that
these jurisdictional facts were not present
in this case.  Specifically, they argued that the requirement set out in
subsection
2(2)(c) was not established in this case.  That subsection requires
an applicant seeking a letter of request to satisfy the judicial
officer that
it is “necessary in the interests of justice” that a letter of request be issued.
 In papers lodged before this
Court, the two Thint companies also raised the
concern that the National Prosecuting Authority had acted beyond its powers
under
section 179 of the Constitution,
[18]
but they abandoned this submission during oral argument.
Interlocutory applications
[18]
The NDPP filed his answers to the applications
for leave to appeal two days out of time.  In his application for condonation, he

argued that it was impossible to answer all four of the applications in this
matter within the 10 days permitted by the Rules of
this Court, given the sheer
volume of work involved and the limited availability of counsel.  Furthermore,
the NDPP filed a supplementary
answer to place on record that Mr Zuma and the
Thint companies had been re-charged at the end of last year.  He applied for
leave
to do so.  The applicants do not oppose the applications.
[19]
In light of the fact that there is neither
opposition to the applications nor any prejudice to the applicants, the
applications
are granted.
Application for leave to appeal
[20]
This Court only has jurisdiction to hear a matter if it is a
constitutional matter
[19]
or an issue connected with a decision on a constitutional matter.
[20]
 That however is not decisive.
[21]
Â
In addition it must be shown that it is in the interests of justice that the
application be granted.
[22]
[21]
The applicants raised several issues.  They contested the
legality of the exercise of public power by Levinsohn DJP.  In addition,
they
alleged that their fair trial rights under section 35(3) of the Constitution
[23]
had been infringed.  Finally, Mr Zuma asserted that his right to dignity under
section 10
[24]
and his right of access to courts under section 34 had been violated.
[25]
[22]
Whether it is in the interests of justice for leave to appeal to
be granted is based on a careful weighing-up of all relevant factors,
[26]
including the interests of the public.  This is the first time that the Court
has been asked to consider section 2(2) of the Act
and the applicants have
raised constitutional issues in this regard.  It is therefore in the interests
of justice that leave to
appeal be granted.
[23]
We deal first with whether the letter of request was lawfully
issued under section 2(2) of the Act.  The second question to be determined
is
whether the issuing of the letter of request infringed the enumerated rights as
claimed by the applicants.
Lawfulness of the letter of
request
[24]
The
NDPP’s first attempt to obtain a letter of
request was made in an application to the High Court before Combrinck J, after the
NDPP charged the applicants.  On 22 March 2006, Combrinck J found that section
2(1) was only applicable when a court was already
seized with criminal
proceedings and that, as he was not seized with the criminal proceedings, he
could not grant the application.Â
He therefore referred the matter to the trial
court.
[27]
Â
The criminal proceedings were thereafter struck from the roll by the trial
court because the NDPP was not ready to proceed.  After
that, but before the
reinstatement of the criminal proceedings, the NDPP made this second attempt to
obtain the letter of request,
this time invoking section 2(2) of the Act.
[25]
In the
Supreme Court of Appeal
Nugent JA, when confirming the order of the High Court, held that
“proceedings” in section 2(1) means “the trial of a person
on a criminal
charge”
[28]
which commences when an accused is called upon to plead.  He held that section
2(2) “allows for assistance to be sought in the
course of a criminal investigation
that precedes a prosecution”.
[29]
 The applicants, on the other hand, contend that substantively they were in the
position of accused persons at all material times
and that section 2(2) should
have no application as the state never, in fact, withdrew the charges against
them, although the criminal
case was struck from the roll.  Consequently, they
aver, the state was not in a position to seek a letter of request at all until

it had re-charged the applicants and the trial was about to commence when it
could have proceeded under section 2(1).
[26]
Under section 2(1), the letter of request is issued
once it appears to the presiding officer during criminal proceedings that it
is
necessary in the interests of justice because a person who can give evidence
cannot do so without undue expense, delay or inconvenience.
[30]
  The meaning of the section is
clear: 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.
[27]
Section 2(2), however, requires a letter of
request to be issued on application by an investigator outside of court
proceedings.Â
An application is made before a judge in chambers or a
magistrate, thereby permitting a request to be made even before commencement
of
criminal proceedings and during investigations.
[28]
In terms of that section, the investigator must
on reasonable grounds satisfy the judge or the magistrate that:
(a)       the
information sought relates to an alleged offence reasonably believed to have
been committed in South Africa;
alternatively, that the information is
necessary to determine whether an offence has been committed;
(b)       an
investigation in respect of the alleged offence is being conducted;
(c)       for
the purposes of the investigation it is necessary in the interests of justice
that the information be obtained;
and
(d)       the information sought is in the possession of a person or
authority in a foreign state.
[29]
For a letter of request to be granted, it is
required that the judge or magistrate be satisfied that each of the
jurisdictional
requirements under section 2(2) has been met.
[31]
  Save for the question as to whether
or not the information sought is necessary in the interests of justice, which
under subsection
2(2)(c) is determined in the discretion of the judicial
officer of the court, all the jurisdictional requirements are facts which
must
be proved.
[30]
Whether the information sought is necessary in
the interests of justice will derive from the circumstances of each case.  A
determination
of the interests of justice must take into account and balance
the relevant rights, duties and interests involved.
[32]
 As the applicants’ claim
makes clear, individuals who may be affected by the issue of letters of request
possess constitutional
rights which must be respected.  On the other hand, the
public has an interest in the effective prosecution of crime and the state
thus
bears a duty to take all reasonable and lawful steps to obtain information
necessary for the effective prosecution of crime.
[33]
 What is necessary in the
interests of justice must be determined in the exercise of the court’s
discretion taking into account
the surrounding facts and circumstances of the
case.
[34]
The interpretation of section 2(2)
[31]
The legal questions concerning the proper
interpretation of section 2(2) of the Act that must be decided in this case are
twofold:
(a) may the state use section 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 section 2(2)
in the circumstances of this case?
Use of section 2(2) to obtain
originals when copies are already held
[32]
In this case, t
he letter of request asked for
the original documents, copies of which were already in the possession of the NDPP.Â
It also requested
affidavits from relevant officials in Mauritius for the purpose of confirming the authenticity of those documents in the event of
them being
tendered as evidence in future proceedings.  The NDPP thus sought to obtain the
documents to ensure that there could
be no dispute as to their admissibility
during the trial.  As correctly pointed out by the Supreme Court of Appeal,
[35]
the applicants had already
indicated that they would oppose any attempt on the part of the NDPP to tender
copies as evidence of
their content.
[33]
The applicants argued that section 2(2) may not
be invoked for purposes of obtaining evidence but merely to obtain information
for
the purposes of an investigation.  The applicants also argue that since
section 2(1) refers to “evidence” and section 2(2)
makes reference to
“information”, the words must have distinct and different meanings.  “Information”,
they contend, refers
to unknown knowledge which in this case would be the
contents of the seized documents.  However, since the NDPP already had copies

of the seized documents, he will not obtain any new “information” from the
originals.  The Thint companies submitted that
the NDPP therefore sought to
obtain “evidence”, which is different from “information” to be sought under
section 2(2) and
is therefore not covered by section 2(2).  For that reason
also, the letter of request is unlawful.  Counsel for Mr Zuma largely
echoed
this argument.
[34]
The NDPP’s response was that “evidence” and
“information” may be different, but evidence is a category of information.Â
A
criminal investigator is therefore entitled to seek information that is known
where it would be useful in proving the commission
of a crime.  Whether the
purpose is to discover new facts or to prepare for a criminal trial with known
facts, he argued, is neither
here nor there.
[35]
The
Supreme Court of Appeal
found that, for purposes of this case, there was no absolute distinction
between these two concepts: an “investigation” includes
the determination of
whether an offence has been committed
and
the gathering of evidence to
prove its commission.
[36]
Â
Information therefore extends to known facts in documentary form that might
provide evidence of the commission of the offence
and its meaning is not
restricted to knowledge that is not yet known.
[36]
In considering the applicants’ arguments, 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.
[37]
 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 section 35 of
the
Constitution is protected.
[37]
In order to determine the area of application of
section 2(2), it is necessary to understand how crime is investigated.  It is
important to note that the process of investigation is not divided into two
mutually exclusive processes: the first process being
to determine whether a
crime has been committed; and the second process being to gather evidence to
prosecute the crime.  These
two processes happen simultaneously and both fall
within the scope of “investigation”.  To understand “investigation” as

referring only to the former process and not the latter would be to adopt a
meaning of section 2(2) incompatible with the manner
in which criminal
investigations are undertaken.  In our view, a more functional and appropriate
understanding of section 2(2)
would recognise that the two processes are
inevitably intertwined and that “investigation” in section 2(2) should be read
accordingly.
[38]
Furthermore, information is not restricted to
new and/or unknown knowledge.  It extends to any knowledge, known or unknown.Â
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.
[39]
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 section 2(2) must be rejected.
Was section 2(2) available in this
case despite the fact that the applicants had previously been charged?
[40]
The second argument raised by the applicants was
that, because they had previously been charged, section 2(2) could not be
employed
by the NDPP.  As described above, section 2(2) was invoked after the
criminal case had been struck from the roll on 20 September
2006, and before
the applicants were re-indicted.  Counsel for Mr Zuma argued that criminal proceedings
began once the NDPP started
its initial prosecution and that the NDPP should not
be allowed to use section 2(2) because the criminal proceedings were struck

from the roll as a result of the NDPP’s state of unreadiness.  They argued that
the NDPP should not be permitted to prosper
from its own mistakes.
[41]
There are two obstacles in the way of this
argument.  First, once a case is struck from the roll, the case terminates and
is no
longer pending.  There is no guarantee that the criminal proceedings will
be reinstated.  Removal of a matter from the roll is
therefore abortive of the currency
of the trial proceedings.  Should the trial ever be re-enrolled, it would start
anew.
[42]
A
s 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.
[43]
In relation to the question as to whether or not
section 2(2) is applicable in these circumstances, it is of no particular
significance
whether the NDPP was responsible for the matter being struck from
the roll.  That the criminal case was no longer on the roll and
no criminal
proceedings were pending is an objective fact.  It cannot be said therefore
that once the matter had been struck from
the roll, the proceedings were still
pending.
[44]
Secondly, the effect of this argument is that
until the trial resumed, the NDPP would not have been entitled to use either
section
2(1) or section 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
section 2(2) suggested by the applicants were to stand, it would frustrate
the very objectives of a speedy trial.
[45]
Finally, we should add that the admissibility of
any documents obtained under section 2(2) at the criminal trial falls to be
determined
in the light of section 5(2) of the Act.  That section regulates the
approach the court must take in relation to admissibility.Â
One of the factors
to be taken into account is any prejudice to any party which the admission of
such evidence might entail.
[38]
[46]
The applicants’ arguments that it was not
appropriate for the NDPP to use section 2(2) in the circumstances of this case
must
therefore fail.  We conclude that the letter of request was lawfully
issued.
Standing
[47]
The Supreme Court of Appeal concluded that the
applicants did not have standing to challenge the issue of the letter of
request.
[39]
 It concluded that the process of obtaining information is a preliminary
process that does not affect the rights of the applicant.
[40]
 In our view, this is a matter
that does not need to be decided in this case and we accordingly refrain from
doing so.  We should
note, however, that our Constitution has adopted a broad
approach to questions of standing.
[41]
 We wish to make it clear that we are not persuaded that the approach of the
Supreme Court of Appeal is necessarily correct given
our constitutional
approach to standing and we leave this question open for consideration in
another case.
The right to dignity
[48]
Counsel submitted that the issuing of the letter of request
directly and detrimentally affects Mr Zuma’s right to dignity under
section 10.
[42]
Â
In that regard, reference is made to the impact of the letter of request on the
political office held by Mr Zuma
[43]
as follows
:
“We submit that a [letter of request]
issued by a Judge of the High Court carries with it the respect engendered by
the endorsement
of that Judge that the interests of justice compel the [letter
of request] and that the very act of issuing the [letter of request]
itself
will incline any reader thereof to the view that there is reason to believe
that the person referred to in the [letter of
request] (
in casu
the
applicant) has in fact made himself guilty of corruption.  In the
circumstances, we submit that the [letter of request] which
has been
transmitted to law enforcement officials in a foreign state (Mauritius), directly and detrimentally affects the applicant’s
dignity.  We have alluded to the
positions held by the applicant to illustrate the obvious impact thereof on the
applicant’s
reputation and dignity.”
[49]
At a broad level, this issue reflects the
tension between Mr Zuma’s claims to the right to dignity and the duty of the NDPP
in
his constitutionally-mandated role and function to prosecute crime.
[44]
  The state has a constitutional
obligation to protect society against serious crimes, such as corruption and
fraud.
[50]
Dignity is indeed an important right and value
in our Constitution.
[45]
 Like any other right in the Bill of Rights, it may be limited subject to
section 36 of the Constitution.  The right to dignity
however, does not
necessarily extend to the right not to be named as a suspect, once there is a
reasonable suspicion that a crime
has been committed.
[51]
There is currently no jurisprudence on the
conflict between the right to dignity and the state’s duty to fulfil its
mandate in
terms of sections 179 and 205 of the Constitution.
[46]
  But there is much on the issue
of the conflict between the rights to free expression and to dignity.
[47]
  However, that jurisprudence
is of no use to Mr Zuma.  One of the primary defences against defamation,
viewed as an injury to
one’s dignity, is the defence of truth.
[48]
  That Mr Zuma is suspected of
alleged corruption is the truth; it does not signify his guilt.  His right to
be presumed innocent
under section 35(3)(h) remains untrammelled.  What the
NDPP has done is therefore no more than to communicate the objective fact
that
Mr Zuma is a suspect in a criminal matter.  By analogy, this defence of truth could
in principle apply and protect the NDPP
from any interference in his constitutionally-mandated
function.
[49]
Â
As O’Regan J held in
Khumalo v Holomisa
, “no person can argue a
legitimate constitutional interest in maintaining a reputation based on a false
foundation.”
[50]
Â
Similarly, there is no right not to be named as a suspect in a criminal matter.
[52]
Counsel for Mr Zuma also alluded to his high
political profile as relevant to the explanation of his claim.  It suffices to
point
out that where our jurisprudence touches on the status of political
information, it tends towards permitting greater dissemination
rather than the
restriction of it.
[51]
Â
This is clearly in recognition of the vital role that the free flow of
information plays in maintaining an open democracy, thereby
enhancing public
trust, confidence and legitimacy in its institutions.
[53]
Mr Zuma’s right to dignity under section 10 of
the Constitution has accordingly not been infringed.
The right to a fair trial
[54]
The
submission on behalf of Mr Zuma was that,
notwithstanding that the criminal proceedings were struck from the roll by
Msimang J on
20 September 2006, Mr Zuma should be regarded as having been an
accused person at all material times.  This, he contended, is due
to the fact
that there was no doubt that he would be charged again in future.  Despite
that, and during the period between the
order issued by Msimang J and his re-indictment
on 28 December 2007, the NDPP approached the High Court for the issue of the
letter
of request in terms of section 2(2) of the Act.
[52]
 In doing so, counsel for Mr
Zuma argued, the NDPP unlawfully circumvented the participative process
envisaged in section 2(1)
of the Act,
[53]
which he would otherwise have been obliged to pursue in order to obtain the
evidence he sought from Mauritius.  Therefore, counsel
for Mr Zuma averred that
a number of fair trial rights in section 35(3) of the Constitution have been
infringed.
[54]
[55]
We have held that the letter of request was lawfully issued under
section 2(2) of the Act.
[55]
Â
In the circumstances of this case, the applicable provision of the Act was
section 2(2) and not section 2(1).  The applicants’
assertion that the NDPP
subverted or circumvented their rights to a fair trial by invoking section 2(2)
therefore has no substance.Â
As we have already found, at this stage, the
applicants’ right to a fair trial is not implicated.
[56]
Although Nugent JA held that the letter of
request was not dispositive of the rights of the applicants and that they would
have
the opportunity to challenge the admissibility of the evidence obtained on
the authority of the letter of request,
[56]
the applicants insisted that this opportunity will not arise.  The Thint
companies submitted that if the High Court order were
to stand, they would
legally be precluded from questioning the lawfulness of the letter of request
at a future trial.
[57]
Counsel for Mr Zuma submitted that although the
right to cross-examine is a fundamental right, under section 2(2) a person who
is
subsequently accused has no right to challenge and adduce evidence by means
of cross-examination of a witness from abroad.  An
accused, he contended, can
only challenge under section 5(2) of the Act the admissibility of evidence
already taken.
[57]
[58]
The fact that copies of the documents sought had
been successfully tendered as evidence in the trial of Mr Shaik does not
necessarily
mean that in this case the same result will follow.  The trial
court will still need to determine their relevance, admissibility
and cogency.Â
It is then and there that the applicants will have the full opportunity to
engage with the prosecution and challenge
the admissibility of the evidence.Â
Of particular importance, as we have already pointed out, is that under section
5(2)(b) of
the Act
[58]
and in terms of the Constitution, in particular subsections 35(3) and 35(5),
[59]
the trial court will surely
ensure that the fair trial rights of the applicants are protected.
[59]
We have held that the letter of request, which
is an executive tool to facilitate investigation for purposes of criminal
proceedings,
was lawfully issued and obtained.  If in the process of executing the
letter of request the applicants’ rights had indeed been
infringed, it would be
the infringement of the rights and not the issuing of the letter of request
which would have been challengeable.
The right of access to courts
[60]
Mr Zuma also claimed that his right of access to
courts under section 34 of the Constitution had been infringed.
[60]
  The argument was as follows:Â
He has raised legal challenges to the issuing of the LoR.  As a result, this
matter is a “dispute
that can be resolved by application of law”.
[61]
  Thus, he has a right to have
this dispute decided by a court, which in turn requires that he must be granted
standing.
[61]
The NDPP did not contest that Mr Zuma possesses
a right to a hearing in a court of law, but submitted that that right would not
be infringed if Mr Zuma was required to wait to raise his claims to exercise
that right at the eventual trial.  The trial court
and not this Court is
therefore the proper forum.  Reserving the exercise of his right to make his
claims does not result in infringement
or threat of infringement of his rights.
[62]
Elsewhere in this judgment,
[62]
we have articulated the nature
of Mr Zuma’s rights to be exercised before the trial court.  Those comments
apply here with equal
force.  It follows that Mr Zuma’s right under section 34
of the Constitution has not been infringed, and for that reason cannot
serve to
grant him standing.  However, even if there was to be no further trial or
hearing, it is doubtful that section 34 would
serve the purpose that Mr Zuma would
have it serve.  The right of access to courts exists to ensure that litigants
who have suffered
violation of their rights are not barred by procedural, legal
or other obstacles from obtaining just and equitable relief from the
courts.
[63]
  It is not intended to grant
standing to a person even after that person has received a full and proper
hearing in a court of
law, simply because such person alleges a violation of
his or her rights.  Such an interpretation of section 34 would essentially

nullify the rules of standing in our law.  It would create endless difficulties
for the administration of justice.  Inevitably,
section 34 is of no aid to Mr
Zuma at this time and in this Court.
“Clean hands”
[63]
Counsel for Mr Zuma argued that since the Mauritian
Supreme Court had precluded the removal of the documents, the state acted
unlawfully
and as a result, the NDPP approaches this Court with “unclean hands”,
and should not be heard.
[64]
The NDPP argued that this issue was not
centrally addressed by the
Supreme Court of Appeal
, and
for that reason the applicant should not be allowed to raise it on appeal.
[65]
At this stage, it suffices to point out that
this argument gives rise to the question of the admissibility of evidence.  That
question
being a matter for the discretion of the trial court makes the question
intrinsically one to be dealt with by that court.
[64]
  On that basis we leave the
question of “unclean hands” open.
Conclusion
[66]
W
e have held that none of the rights claimed by
the applicants has been infringed by the issuing of the letter of request.  In
the
result, the appeal must be dismissed.
Costs
[67]
The applicants and the respondent all sought an
order for costs in the event of success in these proceedings.  In this Court,
the
general rule is that a party which has raised a substantial constitutional
issue should not be ordered to pay the costs of the successful
party,
[65]
so as not to discourage
litigants from approaching the Court on matters of constitutional importance.Â
However, this rule serves
as a guideline to the exercise of the Court’s
discretion and is not inflexible.
[66]
[68]
In this case, it was pointed out to the
applicants in the Supreme Court of Appeal that their complaints in relation to
the infringement
of their rights were prematurely raised and should only be made
at the criminal trial.  It also became clear during the present
hearing that if
the applicants lose, they would still be entitled to object to the
admissibility of the documents forming the subject
matter of these
proceedings.  The main issue in this case was thus the narrow one of the
lawfulness of the letter of request.Â
Despite what was said in the Supreme
Court of Appeal, the applicants persisted in raising the same complaints and put
the respondent
to the expense of defending the appeal.  In the circumstances, the
general rule ought not to apply.  Costs should therefore follow
the result.
Order
[69]
The following order applies to
Thint Holdings
(Southern Africa) (Pty) Ltd and Thint (Pty) Ltd versus the National Director of
Public Prosecutions
(CCT 90/07):
1.         The
respondent’s application for condonation for the late filing of his response to
the applicants’ application
for leave to appeal is granted.
2.         The
respondent’s application to file a supplementary answer is granted.
3.         The
application for leave to appeal is granted.
4.         The appeal is
dismissed.
5.         The applicants are ordered to pay the costs, including
costs of the employment of two counsel.
[70]
The following order applies to
Jacob
Gedleyihlekisa Zuma versus the National Director of Public Prosecutions
(CCT 92/07):
1.         The
respondent’s application for condonation for the late filing of his response to
the applicants’ application
for leave to appeal is granted.
2.         The
respondent’s application to file a supplementary answer is granted.
3.         The
application for leave to appeal is granted.
4.         The appeal is
dismissed.
5.         The applicant is ordered to pay the costs, including
costs of the employment of two counsel.
Langa
CJ, O’Regan ADCJ, Jafta AJ, Kroon AJ, Madala J, Mokgoro J, Ngcobo J, Nkabinde
J, Skweyiya J, Van der Westhuizen J, and Yacoob
J.
For the Applicants in
CCT 90/07:               Advocate P Hodes SC, Advocate A Katz and Advocate M
Collins instructed
by Shamin Rampersad & Associates.
For the Applicants in CCT 92/07:               Advocate
KJ Kemp SC, Advocate MDC Smithers and Advocate TS Khuzwayo
instructed by
Lourens, De Lange & Minnie.
For the Respondents in CCT 90/07             Advocate
W Trengrove SC and Advocate
and CCT 92/07:                                             AM
Breitenbach instructed
by the State Attorney.
[1]
Section 2(2) provides:
“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.”
[2]
Zuma and Others v National Director of Public
Prosecutions
[2007] ZASCA 135
;
[2008] 1 All SA 234
(SCA).  The matter has
not yet been reported in the South African Law Reports.
[3]
National Director of Public Prosecutions v Zuma and
Others
DCLD 13569/2006, 2 April 2007, unreported.  This matter was heard
before Levinsohn DJP.
[4]
In November 2000, the DSO tasked Ms Gerda Ferreira with determining
whether there existed reasonable grounds upon which an investigation
could be
conducted pertaining to corruption and/or fraud in relation to the arms deal.Â
In August 2001, her mandate was extended
to the level of conducting a full
investigation into suspected commission of fraud and corruption in relation to
the said arms
deal.  In September 2001, Ms Ferreira caused a request to be
transmitted to the Ministry of Justice of Mauritius for an application
for “a
commission
rogatoire
and search and seizure”.  The Mauritian authorities had some
difficulty with instituting a
commission rogatoire
as the persons from
whom the documents were to be seized were not witnesses but rather suspects in
an investigation.  After negotiating
with the Mauritian authorities, it was
decided that only a search and seizure order would be sought and the
commission
rogatoire
was abandoned.
[5]
Mr Shaik’s final appeal was dismissed by this Court in
Shaik and
Others v S
[2007] ZACC 19; 2007 (12) BCLR 1360 (CC); 2008 (1) SACR 1 (CC).
[6]
S v Zuma and Others
2006 (2) SACR 69
(D). This matter
was heard before Combrinck J.
[7]
Section 2(1) provides:
“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.”
[8]
Above n 6 at para 9.
[9]
See a
bove n 1.
[10]
Above n 3 at 20-1.
[11]
Above n 2 at paras 19-20.
[12]
Id at para 14.
[13]
Section 10 of the Constitution provides that “[e]veryone has
inherent dignity and the right to have their dignity respected and
protected.”
[14]
The letter of request issued by Levinsohn DJP included an affidavit
by the Head of the DSO, setting out the background facts and
basis for seeking
the letter of request, as well as statements to the effect that Mr Zuma was
suspected of having committed the
crime of corruption.
[15]
Section 35(3) of the Constitution protects the fair trial rights of
accused persons.
[16]
Section 39 of the Constitution relates to the interpretation of the
Bill of Rights.  Section 39(2) provides:
“When interpreting any legislation,
and when developing the common law or customary law, every court, tribunal or
forum must promote
the spirit, purport and objects of the Bill of Rights.”
[17]
Section 34 of the Constitution provides that everyone has the right
to have their disputes decided in a fair public hearing before
a court or
another independent and impartial tribunal or forum.
[18]
Section 179 of the Constitution sets out the powers and functions
of the National Prosecuting Authority.
[19]
Phillips and Others v National Director of Public
Prosecutions
[2005] ZACC 15
;
2006 (1) SA 505
(CC);
2006 (2) BCLR 274
(CC)
at para 30.
[20]
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001
(1) BCLR 36
(CC);
2001 (1) SACR 1
(CC) at para 11.
[21]
Shaik and Others v S
above n 5 at para 15;
National
Education Health and Allied Workers Union v University of Cape Town and Others
[2002] ZACC 27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) at para 25; and
Magajane
v Chairperson, North West Gambling Board
[2006] ZACC 8
;
2006 (5) SA 250
(CC);
2006 (10) BCLR 1133
(CC) at para 29.
[22]
See in this regard
Radio Pretoria v Chairperson,
Independent Communications Authority of South
Africa,
and Another
[2004] ZACC 24
;
2005 (4) SA 319
(CC);
2005 (3) BCLR 231
(CC) at
para 19 (
Radio Pretoria
); and
Armbruster and
Another v
Minister of Finance and Others
[2007] ZACC 17
;
2007 (6) SA 550
(CC);
2007
(12) BCLR 1283
(CC) at para 24.
[23]
Above n 15.
[24]
Above n 13.
[25]
Above n 17.
[26]
Above n 22.
[27]
Above n 6.
[28]
Above n 2 at para 10.
[29]
Id.
[30]
Above n 7.
[31]
Above n 1.
[32]
See
Radio Pretoria
above n 22.
[33]
See inter alia sections 179 and 205 of the
Constitution.  Section 179 provides in relevant part:
“2.           The prosecuting authority has the power
to institute criminal proceedings on behalf of the state, and to
carry out any
necessary functions incidental to instituting criminal proceedings.
.
. . .
4.             National
legislation must ensure that the prosecuting authority exercises its functions
without fear,
favour or prejudice.”
[34]
See
Radio Pretoria
above n 22.
[35]
Above n 2 at para 11.
[36]
Above n 2 at paras 13-4.
[37]
Above n 33.
[38]
Section 5(2) of the Act provides:
“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 in the opinion of the court should be
taken into account; 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.”
[39]
Above n 2 at para 20.
[40]
Id at para 2.
[41]
Section 38 of the Constitution provides:
“Anyone listed in this section
has the right to approach a competent court, alleging that a right in the Bill
of Rights has been
infringed or threatened, and the court may grant appropriate
relief, including a declaration of rights.  The persons who may approach
the
court are—
(a)
anyone
acting in their own interest;
(b)
anyone
acting on behalf of another person who cannot act in their own name;
(c)
anyone
acting as a member of, or in the interest of, a group or class of persons;
(d)
anyone
acting in the public interest; and
(e)
an association acting in the interest of its members.”
See also in this regard
Ferreira v
Levin NO and Others; Vryenhoek and Others v Powell NO and Others
[1995] ZACC 13
;
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at paras
164-7.
[42]
Above n 13.
[43]
At the time the letter of request was issued, Mr Zuma was the
Deputy President of the African National Congress.
[44]
  Above [30].
[45]
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC);
1995 (2) SACR 1
(CC) at paras 144 and 328-9.
[46]
See above [30].
[47]
F
or a summary of developments in this area, see Currie and
De Waal
The Bill of Rights Handbook
5 ed (Juta, Cape Town 2005) at
383-92.
[48]
See Neethling et al
Law of Delict
5 ed (LexisNexis
Butterworths, Durban 2006) at 313.  The defence includes an element of public
interest, but that is not at issue
in this case.
[49]
See above [30].
[50]
Khumalo and Others v Holomisa
[2002] ZACC 12
;
2002
(5) SA 401
(CC);
2002 (8) BCLR 771
(CC) at para 35.
[51]
Id at paras 18 and 22; see also
Mthembi-Mahanyele v Mail
& Guardian Ltd and Another
2004 (6) SA 329
(SCA) at para 116;
2004 (11)
BCLR 1182
(SCA) at para 117.
[52]
For the text of section 2(2) see above n 1.
[53]
For the text of section 2(1) see a
bove n 7.
[54]
See
Section 35(3) of the Constitution above n 15.  The
applicants point specifically to the rights of the accused:
“(b)         to
have adequate time and facilities to prepare a defence;
(c)           to
a public trial before an ordinary court;
. . . .
(e)           to
be present when being tried;
(f)            to
choose, and be represented by, a legal practitioner . . . ;
(g)           to
have a legal practitioner assigned to the accused person by the state and at
state expense, if substantial
injustice would otherwise result, and to be
informed of this right promptly;
(h)           to
be presumed innocent, to remain silent, and not to testify during the
proceedings;
(i)            to
adduce and challenge evidence”.
[55]
Above at [31] – [46].
[56]
Above n 2 at paras 2 and 15.
[57]
Above n 39.
[58]
Id.
[59]
See section 35(3) of the Constitution above n 15.  Section 35(5) of
the Constitution governs the admission of unconstitutionally-obtained
evidence.
[60]
Section 34 provides:  “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.”
[61]
Id.
[62]
See above [58].
[63]
See s
ection 172 of the Constitution.
[64]
See above [58].
[65]
Transvaal Agricultural Union v Minister of Land Affairs and
Another
[1996] ZACC 22
;
1997 (2) SA 621
(CC);
1996 (12) BCLR 1573
(CC) at
para 47; and
Sanderson v Attorney General, Eastern Cape
[1997] ZACC 18
;
1998 (2) SA 38
(CC);
1997 12 BCLR 1675
(CC) at paras 43-4.
[66]
Motsepe v Commissioner for Inland Revenue
[1997] ZACC 3
;
1997 (2) SA 898
(CC);
1997 (6) BCLR 692
(CC) at paras 31 and 33.