Tulip Diamonds FZE v Minister for Justice and Constitutional Development and Others (CCT 93/12) [2013] ZACC 19; 2013 (10) BCLR 1180 (CC); 2013 (2) SACR 443 (CC) (13 June 2013)

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Tulip Diamonds FZE v Minister for Justice and Constitutional Development and Others (CCT 93/12) [2013] ZACC 19; 2013 (10) BCLR 1180 (CC); 2013 (2) SACR 443 (CC) (13 June 2013)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT 93/12
[2013] ZACC 19
In the matter between:
TULIP DIAMONDS FZE
................................................................................
Applicant
and
MINISTER FOR JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
.............................................
First
Respondent
MENZI SIMELANE NO
.................................................................
Second
Respondent
STEVEN HOLZEN NO
......................................................................
Third
Respondent
DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE
AND CONSTITUTIONAL DEVELOPMENT
................................
Fourth
Respondent
BRINKS SOUTHERN AFRICA (PTY) LTD
.....................................
Fifth
Respondent
Heard on : 26 February 2013
Decided on : 13 June 2013
JUDGMENT
VAN DER WESTHUIZEN J (Moseneke DCJ, Froneman J, Khampepe J, Mhlantla
AJ and Skweyiya J concurring):
Introduction
[1]
Standing is an important element in determining whether a matter is
properly before a court. Our law accords generous rules
for standing
that permit applicants to bring lawsuits either on their own behalf
or on behalf of others. But these are not limitless.
A methodical and
thorough application of the rules of standing is necessary to ensure,
amongst other things, that relief is being
sought by the appropriate
party.
[2] The
subject matter of this case is a request for legal assistance from
Belgium. In the context of that request, this Court must
determine
whether the applicant, Tulip Diamonds FZE (Tulip), has standing to
challenge the lawfulness of certain decisions taken
by South African
authorities to carry out the Belgian request. The challenge is
brought in terms of the principle of legality and
the Promotion of
Administrative Justice Act
1
(PAJA). If Tulip fails in this challenge, 18 documents that pertain
to it will be disclosed to Belgian authorities. Both the South

Gauteng High Court, Johannesburg (High Court) and the Supreme Court
of Appeal dismissed Tulip’s challenge, finding that it
did not
have standing to bring the application. Tulip now seeks leave to
appeal against the judgment of the Supreme Court of Appeal.
Factual background and litigation history
[3] Tulip
is a company incorporated and registered in the United Arab Emirates.
It engages in the import and export of rough diamonds,
as well as in
the purchase and sale of rough diamonds in Dubai. Tulip is not
registered in South Africa and has no physical presence
in this
country.
[4]
Tulip’s application is against five respondents: the Minister
for Justice and Constitutional Development (Minister); the
former
Director-General of the Department of Justice and Constitutional
Development (Department of Justice), Mr Menzi Simelane

(Mr Simelane); a Magistrate at the Kempton Park Magistrate’s
Court, Mr Steven Holzen (Magistrate); the current

Director-General of the Department of Justice, Ms Nonkululeko
Sindane; and Brinks Southern Africa (Pty) Ltd (Brinks). Brinks’

parent company is a global provider of secure transport and security
services. No relief is sought against either the current
Director-General of the Department of Justice or Brinks.
[5] This
case originates with a request from investigators in Belgium. On
23 December 2008 the Court of First Instance in Antwerp,
at the
direction of the Public Prosecutor in Antwerp, submitted to South
African authorities a Letter of Request (Request) for
evidence. The
evidence is sought as part of an ongoing investigation by Belgian
authorities into potential criminal activity by
one entity –
Omega Diamonds BVBA (Omega), a Belgian company – and one
individual – Mr Sylvain Goldberg
(Mr Goldberg), a
Belgian national.
[6] The
investigation stems from Omega’s practice of importing diamonds
sourced from the Republic of Angola (Angola) and the
Democratic
Republic of the Congo (Congo) through Dubai and into Antwerp. During
the transfer, documents were allegedly manipulated
which allowed
Omega to conceal the origin of the diamonds. Allegedly, by concealing
the origin, which had the effect of increasing
the value of the
diamonds, Omega was able to hide its additional profit from Belgian
tax authorities.
[7] Tulip
was Omega’s intermediary in Dubai. At Omega’s direction,
Tulip imported diamonds from Angola and Congo, received
the shipment
in Dubai and then exported the diamonds to Antwerp. Invoices
discovered by Belgian authorities during a search of
Omega’s
offices revealed that Tulip had hired Brinks as a courier to
transport diamond shipments between Angola and Dubai.
[8] In
view of Brinks’ involvement, on 23 December 2008 Belgian
authorities issued the Request to South African authorities
to obtain
evidence from Brinks to further the investigation. The Request was
made “[i]n view of the good relations between
[Belgium and
South Africa] and the mutual interest for both States to combat crime
on an international level”. The Request
contains identification
information for the two subjects of the investigation, citations to
the relevant Belgian criminal provisions
and a statement of facts.
The Request states unequivocally that investigators do not consider
Brinks a possible perpetrator, co-perpetrator
or accomplice. It then
outlines several demands for information, both documentary and oral,
regarding Brinks. Included in these
demands is information on Brinks’
business activities with other companies. One of those companies is
Tulip. The two specific
demands concerning Tulip implore the South
African authorities—
“
[t]o
inspect the administration and bookkeeping of Brinks in South Africa
in order to: . . . search and investigate all invoices
and diamond
transports made for and to the following companies in Dubai (UAE):
Tulip Diamonds . . . [and] . . . [t]o gather the
judicial antecedents
of and all useful information on the South African (citizen) Hawkins
Vivien Clare . . . who is a mandatory
of the company Tulip Diamonds
in Dubai (UAE).”
After
detailing additional categories of information, the Request provides
assurance that information disclosed pursuant to the
Request would be
used only for the investigation into Omega and Mr Goldberg.
2
[9] The
Request was forwarded to the Department of Justice. On 5 June 2009 a
Deputy Chief State Law Adviser submitted a ministerial
memorandum to
the Minister, Deputy Minister of Justice and Constitutional
Development and to Mr Simelane, who was the Director-General
of
the Department of Justice at that time. Mr Simelane considered
the Request and recommended that the Minister grant it in
terms of
section 7(4) of the International Co-operation in Criminal
Matters Act
3
(Co-operation Act). The Minister considered Mr Simelane’s
recommendation and approved the request to obtain evidence. On
being
notified by the Minister of his approval, Mr Simelane caused the
Request to be forwarded to an appropriate magistrate.
On 1 October
2009 the Magistrate issued a subpoena pursuant to section 205 of
the Criminal Procedure Act.
4
[10] The
subpoena was directed to Jane Hamilton of Brinks and required her to
appear for questioning “by the authorised Deputy
Director of
Public Prosecutions/Public Prosecutor” on 6 November 2009.
Alternatively, Ms Hamilton’s attendance would
be excused if she
furnished the requested information to the Magistrate prior to the
court date. Like the Request, the subpoena
sought an array of
information from Brinks relating to its involvement with many
companies. Information was sought for the period
1 January 2003 to 3
September 2008. Of the four requests in the subpoena, two implicate
Tulip. They ask Ms Hamilton to—
“
[p]rovide
copies of all the Brink’s (Southern Africa) Pty Ltd invoices
regarding the transportation of diamonds to and for
[a dozen
entities, including Tulip] . . . [and] . . . [p]rovide copies of the
relevant work/client files, including invoices, Kimberley

Certificates, Packing lists, shipment dockets, documents in relation
to insurances taken, instructions, correspondence, coordination
of
principals/intermediaries, received instructions and meetings and
conversations held [of a dozen companies, including Tulip].”
[11] Tulip
was not notified by South African authorities that the Request, which
specifically named Tulip, had been approved. Nor
was it given notice
that the subpoena, which also named Tulip, had been issued. Tulip
nevertheless got wind of these developments
on or about 2 October
2009, soon after the subpoena was issued. Fearing that information
pertaining to it would be disclosed, Tulip
sprang into action. Its
lawyers commenced a discussion with Brinks’ lawyers to
determine, amongst other things, “whether
or not Brinks
intended to hand over any documents that contained any details
relating to [Tulip . . . ] to any third party”.
Brinks’
lawyers refused to provide the information.
[12] On 12
October 2009, in the light of Brinks’ position, Tulip launched
an urgent application to interdict Brinks from disclosing
any
documentation or information relating to Tulip and to afford Tulip
“an opportunity properly to consider the basis upon
which its
confidential information might be divulged.”
5
On 28 October 2009, the High Court granted an urgent
temporary order interdicting Brinks from disclosing information
in
its possession, knowledge or control relating to Tulip. The temporary
order set off extensive negotiations and meetings between
lawyers for
Tulip and Brinks, and representatives of the National Prosecuting
Authority of South Africa, the Department of Justice,
the South
African Police Service and the State Attorney. The temporary order
was extended several times throughout the first half
of 2010.
[13]
During the course of negotiations, it was agreed that Brinks would
compile an index of “all the documents relating to
[Tulip] that
Brinks intended to make available to the authorities in terms of the
subpoena and furnish it to [Tulip’s lawyers].”
The index
identifies a total of 18 documents. They all appear under the heading
“List of Brinks’ Invoices”. In
early 2010, Tulip’s
lawyers received copies of all the documents listed in the index.
This collection of documents represents
the information about which
Tulip is concerned and around which this case revolves. Absent
intervention by this Court, only these
18 documents would be turned
over to Belgian authorities.
[14]
Following the High Court’s granting of the temporary order,
Tulip decided to seek a review of the decisions by South
African
authorities giving effect to the Request. It launched an application
against the respondents on 19 May 2010 and consolidated
into it
its application against Brinks. The application sought to review and
set aside the decisions by the Minister, Mr Simelane
and the
Magistrate because, Tulip contended, those decisions were unfair,
improper and unlawful. In particular, Tulip alleged that
multiple
procedural irregularities in the respondents’ decisions
contravened section 7 of the Co-operation Act and Tulip’s

constitutional right to just administrative action under section 33
of the Constitution, as given effect to by PAJA. To establish
that it
had standing in the case, Tulip averred:
“
Giving
effect to the respondents’ decisions will materially impact
upon [Tulip’s] proprietary rights in its confidential
business
information, which rights will be immediately infringed on the
handing over [of] the documents called for in the subpoena.”
[15] The
High Court dismissed Tulip’s application on the basis that it
did not have standing. It relied on section 7(1) of
the Constitution
6
to reason that because Tulip had no physical presence in South
Africa, it could not invoke constitutional rights in our courts.

Although the High Court concluded that Tulip did not have standing to
bring its suit, the Court nevertheless proceeded to consider
the
merits of Tulip’s case and the three grounds on which it sought
review of the respondents’ decisions to give effect
to the
Request. It rejected all three grounds.
[16] Tulip
appealed this decision to the Supreme Court of Appeal. The Supreme
Court of Appeal agreed with the High Court’s
outcome but
differed on the reasons as to why Tulip did not have standing.
7
It found that Tulip did not have standing at common law because it
could not prove that it had a “direct and substantial
interest
in the right which is the subject-matter of the litigation”.
8
This was because Tulip did not demonstrate that the documents at
issue contained confidential information, or that there was any
legal
basis for ascribing confidential treatment to the documents. The
Supreme Court of Appeal declined to consider the merits
of Tulip’s
review application.
Parties’
submissions in this Court
[17] Tulip
argues that the respondents conceded standing in their High Court
papers. The respondents counter that the concession
was a qualified
one, made in error on a point of law and should not be binding on a
court. In the alternative, Tulip contends that
its standing flows
from its private and confidential interests in the documents. The
documents are private because they contain
private business
information, implicating private business interests; Tulip is the
subject of the information and the documents
are the sort of
documents which are on their face private. The documents are
confidential because Brinks affirms that they are
confidential. The
respondents argue that Tulip does not have standing because this
Court is not bound by an incorrect concession
concerning a legal
question. The respondents aver that the Supreme Court of Appeal was
correct in its approach to and finding on
standing. Neither Tulip’s
privacy nor its confidentiality interests are affected.
[18] On
the merits, Tulip argues that the decisions to accede to the Request
and to issue the subpoena should be reviewed. This
is because the
Director-General took irrelevant considerations into account when
deciding to give effect to the Request and the
Request does not
provide full and proper disclosure of certain facts about the Belgian
investigation. The Request is also over-broad
and vague and there is
no jurisdictional basis in terms of section 7(2) of the Co-operation
Act for acceding to it. Tulip also
argues that the Magistrate was not
authorised to issue the subpoena in terms of section 205 of the
Criminal Procedure Act.
Finally, Tulip avers that there was a failure
of procedural fairness on the part of the respondents by omitting to
notify Tulip
of their decisions, and that the Director-General
improperly delegated his authority to designate a magistrate. The
respondents
contest several of these grounds of review and argue that
the decisions giving effect to the Request are valid and that the
subpoena
should not be set aside.
Constitutional
and legal framework
[19]
Tulip’s challenge seeks to review decisions made by the
respondents in terms of the Co-operation Act. The purpose of
the
Co-operation Act is to facilitate South Africa’s co-operation
with foreign States on issues relating to the execution
of sentences
in criminal cases, the confiscation and transfer of criminal proceeds
and, of particular import in this case, the
provision of evidence.
9
The Co-operation Act governs the provision of evidence in two
directions – from South Africa to a foreign State, and from
a
foreign State to South Africa. A roadmap for the latter appears in
section 7.
10
Where a foreign State requires assistance in obtaining evidence in
South Africa for use in that foreign State, section 7 provides
that a
letter of request be submitted to South African authorities. The
authorities review the request and designate a magistrate
to issue a
subpoena to collect the requested evidence. Section 8 addresses
the procedures to be followed by a magistrate to
examine witnesses.
11
[20] In
challenging the respondents’ decisions taken under the
Co-operation Act, Tulip relies on the principle of legality
and the
constitutional protection of the right to just administrative
action,
12
protected legislatively by PAJA.
[21] In
this case, the Court of First Instance in Antwerp issued the Request
to obtain South Africa’s assistance in collecting
evidence
located here. That evidence is needed to determine whether Omega and
Mr Goldberg have committed certain crimes under Belgian
law. Because
the Request seeks the help of South African authorities in the
provision of evidence in a criminal matter arising
in a foreign
State, it falls well within the language and spirit of the
Co-operation Act. It is in this context that we must assess
whether
the interests that Tulip seeks to rely on for standing are capable of
being affected by the respondents’ decisions.
[22] In
interpreting the provisions of the Co-operation Act, this Court has
sought to adopt an approach that allows the Co-operation
Act to
co-exist with other domestic legislation.
13
The Co-operation Act has to be implemented alongside related
legislation, bearing in mind that the Bill of Rights and
constitutional
restrictions still exist to safeguard against the
abuse of power. Indeed, as we observed in
Falk
and acknowledge
in this case, “[i]nternational co-operation in combating crime
to protect society is a legitimate constitutional
objective.”
14
Leave
to appeal
[23] Leave
to appeal to this Court requires us to determine whether a
constitutional matter is raised and whether it is in the interests
of
justice to grant leave. Tulip’s application implicates the
constitutional right to just administrative action under section
33.
The case therefore raises a constitutional matter. It is also in the
interests of justice to grant leave, as Tulip’s
arguments deal
with the requirements of standing for violations of constitutional
rights. Leave should therefore be granted.
Have
the respondents conceded standing?
[24] Tulip
argues that the respondents conceded standing in their answering
affidavit before the High Court and that they should
not be permitted
to withdraw this concession. The respondents submit that they
erroneously conceded standing only so far as the
Request extends to
the invoices and to diamond transporting. However, they argue that
standing is a legal question. It must be
determined by a court and
not one of the parties. A concession of this nature should not bind
this Court. Tulip responded to this
point in oral argument by
submitting that standing is not a purely legal question. There are
factual dimensions to standing. In
this instance, because the
respondent conceded standing, Tulip did not have to lay any basis to
assert its standing.
[25] I do
not agree with Tulip’s approach. Courts have stated that it
would create an intolerable situation if a court were
to be precluded
from giving the right decision on accepted facts merely because a
party failed to raise a legal point as a result
of an error of law on
its part.
15
It would be intolerable if this Court were to be bound by an error of
law made by a party which that party then, within reasonable
time,
corrected. There must be exceptionally good reason for a court’s
assessment of law to be fettered by a party’s
error.
[26]
Prejudice may provide this reason. Tulip had to put facts forward to
establish standing in its founding papers. This it purported
to do.
16
The respondents withdrew their concession within a reasonable time.
Despite this withdrawal, Tulip argued standing before the High
Court
without asking for leave to adduce further evidence. It could have
sought leave on the ground that the initial concession
on standing
prevented it from presenting its full case on standing. It did not do
so. There is thus no proper ground to find that
Tulip has been
prejudiced as a result of the initial incorrect and qualified
concession on standing.
Standing
[27] Our
law contemplates standing in two ways – at common law and under
the Constitution. At common law, an applicant must
be able to show a
sufficient, personal and direct interest in the case.
17
[28]
Section 38 of the Constitution introduced another framework in which
to assess standing. It 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
a 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.”
[29] Where
an applicant seeks to vindicate a right promised in the Bill of
Rights, as Tulip does here, the starting point in the
standing
analysis is section 38 of the Constitution.
18
This is because section 38 is a deliberate and radical departure from
common law. Moreover, this approach is precise and efficient.

Constitutional standing is broader than traditional common-law
standing.
[30]
Because Tulip alleges the violation of a constitutional right and
acts in its own interest, the proper question before this
Court is
whether Tulip has established standing under section 38(a). In
Giant
Concerts
, this Court dealt comprehensively with own-interest
standing under section 38 and PAJA:
“
PAJA,
which was enacted to realise section 33, confers a right to challenge
a decision in the exercise of a public power or the
performance of a
public function that ‘adversely affects the rights of any
person and which has a direct, external legal
effect’. PAJA
provides that ‘any person’ may institute proceedings for
the judicial review of an administrative
action. The wide standing
provisions of section 38 were not expressly enacted as part of PAJA.
Hoexter suggests that nothing much
turns on this because ‘it
seems clear that the provisions of section 38 ought to be read into
the statute.’ This is
correct.
The Supreme Court of Appeal has
rightly suggested that ‘adversely affects’ in the
definition of administrative action
was probably intended to convey
that administrative action is action that has the capacity to affect
legal rights, and that impacts
directly and immediately on
individuals. The effect of this is that Giant, as an own-interest
litigant, had to show that the decisions
it seeks to attack had the
capacity to affect its own legal rights or its interests.
In seeking to assert this right,
Giant has never claimed to be acting on behalf of someone else who
was incapacitated, or as a member
of, or in the interest of, a group
or class of persons, or in the public interest, or in the interest of
the members of an association.
The sole interest it claims to assert
is its own, which during argument its Counsel correctly described as
commercial. It is that
interest we must examine to see whether it
affords Giant title to challenge the transaction.
And in determining Giant’s
standing, we must assume that its complaints about the lawfulness of
the transaction are correct.
This is because in determining a
litigant’s standing, a court must, as a matter of logic, assume
that the challenge the litigant
seeks to bring is justified. As
Hoexter explains:
‘
The
issue of standing is divorced from the substance of the case. It is
therefore a question to be decided
in
limine
[at the outset], before the merits are considered.’
The separation of the merits
from the question of standing has two implications for the
own-interest litigant. First, it signals
that the nature of the
interest that confers standing on the own-interest litigant is
insulated from the merits of the challenge
he or she seeks to bring.
An own-interest litigant does not acquire standing from the
invalidity of the challenged decision or
law, but from the effect it
will have on his or her interests or potential interests. He or she
has standing to bring the challenge
even if the decision or law is in
fact valid. But the interests that confer standing to bring the
challenge, and the impact the
decision or law has on them, must be
demonstrated.
Second, it means that an
own-interest litigant may be denied standing even though the result
could be that an unlawful decision
stands. This is not illogical. As
the Supreme Court of Appeal pointed out, standing determines solely
whether
this
particular litigant is entitled to mount the
challenge: a successful challenge to a public decision can be brought
only if ‘the
right remedy is sought by the right person in the
right proceedings’. To this observation one must add that the
interests
of justice under the Constitution may require courts to be
hesitant to dispose of cases on standing alone where broader concerns

of accountability and responsiveness may require investigation and
determination of the merits. By corollary, there may be cases
where
the interests of justice or the public interest might compel a court
to scrutinise action even if the applicant’s standing
is
questionable. When the public interest cries out for relief, an
applicant should not fail merely for acting in his or her own

interest.
Hence, where a litigant acts
solely in his or her own interest, there is no broad or unqualified
capacity to litigate against illegalities.
Something more must be
shown.”
19
(Footnotes omitted; emphasis in original.)
[31] Tulip
must thus establish that its interests or potential interests are
directly affected by the alleged unlawfulness of the
actions taken by
the respondents. To succeed, Tulip must establish both components of
own-interest standing: interest and direct
effect.
20
As discussed in
Giant Concerts
, Tulip must demonstrate that
its interests are more than hypothetical or academic.
21
It must also show that its interests and the direct effect are not
unsubstantiated. Mere allegations, without more, are not sufficient

to prove the elements of own-interest standing.
22
Interest
[32] In
its founding papers in the High Court, Tulip stated that “[g]iving
effect to the respondents’ decisions will
materially impact
upon [Tulip’s] proprietary rights in its confidential business
information, which rights will be immediately
infringed on the
handing over [of] the documents called for in the subpoena.”
23
[33] In
written argument before this Court, Tulip sought to extend this to
reliance on the right to privacy as well. Tulip describes
its
interest as “informational privacy”, which encompasses a
right to “informational self-determination”.
Tulip claims
that it is entitled to determine with whom information concerning it
is shared because it is the subject of that information.
It should
therefore be consulted on the information’s collection, use or
disclosure to other parties.
[34] Tulip
also attempts to anchor its privacy interest in the documents by
arguing that the documents sought are by their very
nature private or
give rise to an expectation of privacy.
[35]
Tulip’s belated reliance on privacy cannot be entertained.
Privacy is a “right which becomes more intense the closer
it
moves to the intimate personal sphere of the life of human beings,
and less intense as it moves away from that core.”
24
Juristic persons are not the bearers of human dignity and their
privacy rights can therefore hardly be as intense as those of human

beings.
25
The infringement of human dignity and thus the privacy of human
beings are often self-evident. Not so in the case of juristic
persons. Here no facts self-evidently point to any infringement of
Tulip’s privacy, either as subjectively expected by Tulip,
or
as an objectively reasonable expectation.
26
Tulip does not even assert a subjective expectation in its founding
papers. Privacy cannot therefore assist Tulip’s arguments
on
standing.
[36] As to
confidentiality, Tulip relies on two bases: Brinks’ averments
that the documents are confidential and the nature
of the business
conducted between Brinks and Tulip. According to Tulip, Brinks
“stated that [the documents] are confidential
and private as
between [Tulip] and Brinks.” Tulip argues that because Brinks
considers these documents confidential, there
is no real dispute as
to confidentiality. There are a number of problems with this.
[37] A
court cannot simply accept that, because a third party claims
confidentiality, confidentiality exists. Tulip has not shown
a
general
duty of confidentiality in law
between
a principal and a courier or a consignor and a consignee to support
confidentiality flowing from Brinks’ statement.
Nor has Tulip demonstrated confidentiality by providing a contract
with terms creating a confidentiality obligation as to the documents.

Therefore both arguments relating to factual confidentiality are
untenable.
[38] I
have had the benefit of reading the judgment of my brother Jafta J.
He raises a third possible interest, that of ownership
of the
documents sought. In the circumstances of this case, I cannot agree
that this establishes standing.
[39]
Tulip’s reliance on ownership appears not to be based on the
documents themselves, but on their content. It claims infringement
of
“proprietary rights in its confidential business information”.
27
But there is doubt about whether Tulip actually owns the content of
the documents. It has not laid a basis for its purported ownership

over the contents of the 18 documents in the index. And the fact that
those documents may mention Tulip does not amount to a claim
of
ownership. Neither does the fact that the Request and subpoena call
for documents that pertain to Tulip. Tulip itself must establish
its
proprietary rights in the documents.
28
It has failed to do so.
Are
Tulip’s interests directly affected?
[40] To
succeed in establishing constitutional own-interest standing, Tulip
must demonstrate that its purported interests –
confidentiality
or proprietary – are directly affected by the impugned
unlawfulness. In a case such as this one, that effect
cannot simply
be the fact that the challenged decisions are potentially invalid.
29
That would eviscerate the purpose of standing for cases brought under
PAJA. Tulip must demonstrate that the decisions it seeks
to attack
had the capacity to affect its own legal rights or interests.
30
[41] Tulip
has not demonstrated any direct effect to any of its interests. That
effect need not be contemplated in the abstract.
Each case must be
decided on its own facts and pragmatism is needed in the assessment
of those facts.
31
[42] We
have the benefit of knowing exactly what will happen if the
challenged decisions are permitted to stand. Eighteen documents

pertaining to Tulip will be turned over to Belgian authorities by
Brinks. They will be used only to investigate possible criminal

activity by Omega and Mr Goldberg.
32
Assuming that valid interests of ownership or confidentiality may
exist, there is nothing to show that ownership of the documents
will
be lost or that a breach of confidentiality will potentially affect
Tulip in some demonstrable way. Tulip has therefore not
made out a
case that its interests are poised to suffer any direct effect by the
disclosure of the 18 documents. The only effect
it has alleged is
disclosure itself, which alone does not constitute sufficient effect.
[43] In
addition, an alleged breach of confidentiality, on the basis of
nothing more than one party’s purported right to
confidentiality, does not necessarily amount to a direct effect in
the particular circumstances of this case. There may be remedies
for
breaches of confidentiality between immediate parties in private law,
but that does not translate without more into a legally
protectable
interest in preventing disclosure of information sought in respect of
an investigation of a third person, as is the
case here.
33
Legal privilege needs to be demonstrated in one form or another.
Commercial confidentiality is not in our law recognised as
automatically
creating a form of legally protected privilege.
34
[44] Tulip
has thus failed to establish that it has standing to bring this case.
Merits
[45]
Because Tulip cannot establish that it has standing under section 38,
it necessarily follows that it cannot fall within the
more
restrictive parameters of the common law. Absent standing, a litigant
is not entitled to have the merits of its application
heard by a
court. Tulip’s application shall suffer that same fate, unless,
as explained in
Giant Concerts
, there is “a strong
indication of fraud or other gross irregularity in the conduct of a
public body” and therefore
it would be in the interests of
justice under the Constitution or the public interest for this Court
to consider the merits of
Tulip’s application.
35
I therefore proceed to examine whether these features exist.
[46] The
minority judgment identifies two bases on which the Magistrate’s
subpoena was improperly issued and therefore invalid,
namely that
Magistrate Holzen was not the right magistrate to issue the subpoena
and that the use of section 205 of the Criminal
Procedure Act was
impermissible. I do not agree.
Territorial jurisdiction of the Magistrate
[47] The
first alleged irregularity concerns the identification of the
Magistrate under section 7(5) of the Co-operation Act.
Section 7
describes the steps that must be followed by South African
authorities upon receipt of a letter of request, such as the
Request
in this case from Belgian authorities.
36
The final step indicates that once a request for evidence has been
approved by the Minister, the Director-General must forward
it to
“the magistrate within whose area of jurisdiction the witness
resides.”
37
[48] Both
the Request and the subpoena indicate that Brinks was within the
territorial jurisdictional of the Kempton Park Magistrate’s

Court. The Request lists Brinks’ address as “PO Box 34,
Isando 1600, Johannesburg, South Africa.” The subpoena
is
issued to “Jane Hamilton, Brink’s South Africa (Pty) Ltd:
42 Electron Ave, Isando”. These documents unambiguously

indicate that the addresses for both Brinks and Ms Hamilton are
located in Isando, a neighbourhood east of Johannesburg. Isando
falls
within the jurisdiction of the Kempton Park Magistrate’s Court.
There is thus no issue with the appropriateness of
the Magistrate’s
territorial jurisdiction, as the correct magistrate was ultimately
identified and issued the subpoena. It
cannot therefore form the
basis of any successful challenge by Tulip, much less constitute “a
strong indication of fraud
or other gross irregularity”
sufficient to overlook Tulip’s lack of standing.
Use of section 205
[49] I now
turn to the issuing of the subpoena in terms of section 205 of the
Criminal Procedure Act. It is clear that the Magistrate
deliberately
and intentionally relied on section 205. This was no administrative
error. However, the question that remains to be
answered is the
effect of this reliance.
[50] The
empowering provision in this instance is section 8 of the
Co-operation Act.
38
This is the prism through which a magistrate’s power to issue a
subpoena in the context of mutual legal assistance must be
viewed.
Section 8(1) provides that a magistrate must ensure that a person
whose evidence is required appear before him or her under
oath.
Section 8(2) describes the manner in which that person may be
subpoenaed. The focus of this aspect of review proceedings
must
therefore be section 8(2). This section is not specific about
exactly how a magistrate should issue the subpoena. It
is silent as
to the penalties of non-compliance with a subpoena. One is inclined
to think there is an omission in the section.
However, the section is
specific in stating that such a person must be subpoenaed in the same
manner as they would be subpoenaed
to appear in a magistrate’s
court. Therefore this Court must determine whether section 8 is
sufficient to independently empower
and enable a magistrate to
exercise his or her power in issuing a subpoena.
[51]
Section 8 is not independently sufficient to allow magistrates to
issue subpoenas in instances of mutual legal assistance.
The language
of section 8(2) is broad. It envisages magistrates using the ordinary
mechanisms they employ when issuing subpoenas.
Section 205 is such a
mechanism. That these mechanisms were never engineered to be used in
the general scheme of mutual legal assistance
in terms of the
Co-operation Act explains the inconsistencies that arise when these
mechanisms are used to fulfil an objective
in terms of the
Co-operation Act. Courts have indeed used mechanisms provided by the
Criminal Procedure Act to turn the cogs of
the mutual assistance
scheme under the Co-operation Act.
39
Other jurisdictions also rely on legislation outside of their
equivalent to the Co-operation Act to give effect to a request for

assistance.
40
There are other mechanisms one can rely on to issue a subpoena. These
include section 51 of the Magistrates’ Courts Act.
41
However, even had section 51 of the Magistrates’ Courts Act
been relied upon to issue the subpoena, there would still be

inconsistencies between that section and section 8 of the
Co-operation Act.
42
[52] I
accept that certain jurisdictional requirements in section 205 were
not met. However, in the light of the broad language
of section 8(2),
the apparent non-compliance with the requirements in section 205 is
not impermissible as those are not the requirements
that should be
the focus of determining the validity of the subpoena. The
jurisdictional requirements which must be fulfilled are
those found
in section 8 of the Co-operation Act. And those requirements were
met. To hold otherwise would effectively mean that
none of our
existing domestic procedural methods to secure the attendance of
witnesses and procure documents could be utilised
for the purposes of
the Co-operation Act.
[53] The
last point is whether the Magistrate’s failure to administer an
oath whilst issuing a subpoena in terms of section
205, as pointed
out by Jafta J, is inconsistent with section 8. It does not seem to
be so. The admonishment or oath is envisaged
to take place when a
party is actually before a magistrate in order to give evidence. This
would take place after the subpoena
has been issued. This
interpretation is supported by the language of the section which
states that “upon the appearance of
such person the magistrate
shall administer an oath”.
43
Since Tulip instituted action before any information could be placed
before the Magistrate, it cannot be said that section 8(1)
was not
complied with. This is because the opportunity was not afforded to
the Magistrate to administer or fail to administer an
oath. Taking
the point further would be pure conjecture.
[54] For
the sake of completeness I also refer to the other grounds of review.
Irrelevant considerations
[55] Tulip
argues that the Director-General took irrelevant considerations into
account by regarding concerns about trade in conflict
or blood
diamonds as “a primary consideration, if not the primary
consideration” when deciding to accede to the Request.
It
submits that because blood diamonds are irrelevant to the alleged
offences in Belgium, any consideration regarding blood diamonds
in
connection with decisions surrounding the Request was impermissible.
[56] Tulip
relies on Mr Simelane’s answering affidavit to argue that
concern over blood diamonds was a primary consideration
informing his
recommendation to the Minister to accede to the Request. But a close
reading of Mr Simelane’s affidavit indicates
that his concern
over blood diamonds was not a “primary consideration”. He
devotes only one paragraph to a discussion
about blood diamonds,
describing how they have fuelled armed conflict and resulted in gross
human rights violations. Far from a
“primary consideration”,
the brief focus on blood diamonds was instead only one step in Mr
Simelane’s explanation
of Omega’s alleged crimes. He
explains how blood diamonds created the need for Kimberley
Certificates and how Omega is suspected
of having manipulated those
certificates. He further details how one such certificate allegedly
increased the value of certain
diamonds, and that by concealing the
origin of those diamonds, profits were kept hidden from Belgian tax
authorities. The reference
to blood diamonds was therefore an
explanatory step in Mr Simelane’s demonstration of the link
between manipulated Kimberley
Certificates and possible tax and fraud
violations under Belgian law. It was not an impermissible
consideration. Consequently,
this ground for review must fail.
Full
and proper disclosure
[57] Tulip argues that the Request did not provide a full and proper
disclosure to South African authorities. This is based on
three
grounds. First, Belgian authorities failed to disclose that they had
requested Tulip’s assistance prior to issuing
the Request to
South African authorities. Second, Belgian authorities did not
disclose why they had chosen to seek assistance from
South Africa
instead of requesting assistance from jurisdictions directly
associated with the investigation such as the United
Arab Emirates,
Congo or Angola. Third, the Request failed to disclose the details
underlying the search and seizure that Belgian
authorities conducted
of Omega’s premises prior to seeking the assistance of South
African authorities.
[58] As to
the first ground, Tulip claims that non-disclosure by the Belgian
authorities concerning Belgium’s initial request
for assistance
from Tulip is a relevant fact that should have been disclosed. I
disagree. Had Tulip perhaps rendered assistance
or provided
information to the Belgian authorities, then it would have been a
relevant fact. This would be so, because Tulip could
have simply
argued that the Belgian authorities were already privy to the
requested information, which would have made the Request
as it
pertains to Tulip superfluous.
[59] As to
the second ground, Belgium’s failure to provide reasons as to
why it did not approach other jurisdictions is not
relevant as I
cannot see why Belgium must explain its chosen path to gather
evidence. This is a discretion within the purview of
the Belgian
authorities. Furthermore, it is understandable for the Belgian
authorities to review the entire sequence of facts relating
to the
alleged crimes to determine whether the offences were indeed
committed.
[60]
Finally, the third ground of review based on non-disclosure must also
fail. This is because there is nothing in section 7 of
the
Co-operation Act to suggest that for a request to be valid there must
be disclosure of any measures taken to obtain information
in the
requesting State. This submission must fail because of the purpose
for which information is sought. The Request, in relevant
part, asks
South African authorities to—
“
inspect
the administration and bookkeeping of Brinks in South Africa in order
to . . . compare and investigate the nine invoices
coming from Brinks
South Africa which were found in the office of Omega Diamonds (and
which will be in [the] possession of the
Police Officers travelling
to South Africa).”
[61]
Clearly, one of the reasons the Request was issued was to establish
the authenticity of the invoices found in Omega’s
Belgian
offices. This, in and of itself, explains why even after the search
and seizure was conducted in Belgium it would be necessary,

especially in a fraud investigation, to ascertain the authenticity of
certain documents by obtaining copies in South Africa as
well. Thus,
even if additional details about the search and seizure in Belgium
were attached to the Request, the practical need
for the seizure of
documents in South Africa would remain.
Section 7(2) of the Co-operation Act
[62] Tulip
argues that certain jurisdictional requirements under section 7(2) of
the Co-operation Act were not fulfilled before
Mr Simelane
recommended to the Minister that he grant the Request. It contends
that the representations made by a Deputy Chief
State Law Adviser in
the ministerial memorandum and by Mr Simelane in his recommendation
to the Minister led to confusion as to
the jurisdictional basis
relied upon under section 7(2). I disagree.
[63]
Section 7(2)
44
sets out three disjunctive jurisdictional prerequisites that must
exist for the Director-General to recommend approval of a letter
of
request from a foreign State. They are that: (i) proceedings have
been instituted in a court or tribunal exercising jurisdiction
in the
requesting State;
45
(ii) there are reasonable grounds for believing that an offence has
been committed in the requesting State and that an investigation
in
respect thereof is being undertaken in the requesting State;
46
or (iii) it is necessary to determine whether an offence has been
committed in the requesting State and an investigation in respect

thereof is being undertaken in the requesting State.
47
[64] There
is no confusion about the basis of Mr Simelane’s
recommendation. In his affidavit, Mr Simelane affirms that he
was
satisfied that preliminary investigations had started in Belgium and
that there were reasonable grounds for believing that
an offence had
been committed under Belgian law. This determination was based on the
ministerial memorandum, which made similar
observations. The
recommendation fell under the second jurisdictional prerequisite set
out above. There is no cause to believe
that this power was
incorrectly exercised.
Unlawful
delegation of authority
[65]
Section 7(5) of the Co-operation Act provides that the
Director-General must forward an approved letter of request to a
magistrate.
Section 29 allows the Director-General to delegate any
functions under the Co-operation Act, including the one in section
7(5),
to an official of the Department of Justice.
48
That is what appears to have happened in this case – the
Director-General delegated his authority to a Deputy Chief State
Law
Adviser, who then requested the Chief Magistrate of the Johannesburg
Magistrate’s Court to designate a magistrate. Tulip
argues that
the delegation was unlawful because it does not meet the requirements
for lawful delegation. But when courts have previously
found that
such requirements were not met, it was because the delegating body
was found not to have the proper substantive delegating
authority.
49
No such argument applies in this case. Section 29 of the Co-operation
Act grants delegating authority to the Director-General.
Moreover,
the apparent delegation meets the requirements set out in section 29.
It was therefore within the Director-General’s
authority to
delegate his function to a Deputy Chief State Law Adviser, and the
delegation was lawful.
Over-breadth and vagueness of the Request
[66] Tulip
contends that the Request is over-broad and vague. It argues that,
amongst other things, the Request fails to explain
the offences of
which Omega is suspected and the terms of the Request, such as “all
relevant documents” and “all
invoices and diamond
transports”, are over-broad. This argument is not persuasive.
The Request is sufficiently detailed with
regard to the crimes
allegedly committed by Omega, the factual background to the
allegations and the purpose for which Belgian
authorities seek
documents from Brinks. Moreover, Tulip’s arguments about
over-breadth are undercut by the fact that the
Request and subpoena
yielded only a total of 18 responsive documents. This is hardly a
burdensome and unwieldy volume. It does
not appear that Brinks had
any difficulty ascertaining which documents in its possession were
responsive to the subpoena.
Procedural
unfairness
[67]
Invoking PAJA and section 8 of the Co-operation Act, Tulip argues
that the failure by administrators and the Magistrate to
give notice
or a hearing prior to the taking of any decision to accede to the
Request constitutes procedural unfairness. While
Tulip concedes that
the Co-operation Act does not expressly provide for notice and
hearing, it finds such an obligation imposed
upon administrative
action in section 3(2)(b) of PAJA.
[68] When
confronted in oral argument with the fact that, at the time of
setting in motion the process and the decision of the
Magistrate,
Tulip had no presence in this country and that the authorities could
hardly be expected to give hearings to parties,
Tulip was
hard-pressed to advance this argument further. Nothing further needs
to be said about the point.
[69] The
alleged defects in the respondents’ decisions are primarily
formal and procedural in nature. Even if there might
have been some
substance to the alleged defects (which is not the case), it can
hardly be said that they demonstrated fraud or
gross irregularity. I
therefore do not find this to be a case deserving of any exception
to the rule that absent standing, an
applicant’s case must be
dismissed.
Order
[70] The
following order is made:
Leave
to appeal is granted.
The
appeal is dismissed.
There
is no order as to costs.
JAFTA J (Nkabinde J and Zondo J concurring):
Introduction
[71] At
common law a party may institute proceedings and seek relief if it
has
locus standi
(legal standing). Legal standing has two
constituent elements. The first is the capacity to sue and be sued.
The second is a
direct and substantial interest in the outcome of a
particular litigation. If the party that institutes proceedings
seeks to
enforce a right, it must show its interest in the right
sought to be enforced. If it seeks to protect a particular interest,

it must establish the nature of the interest and that it is
protectable in law at its instance.
[72] This
case concerns the second element of legal standing. The issue is
whether Tulip Diamonds FZE (Tulip) has interest directly
affected by
decisions taken by authorities in South Africa, relating to the
gathering of evidence needed by authorities in Belgium.
Tulip
instituted a review application against the Minister for Justice and
Constitutional Development (Minister); the Director-General:

Department of Justice and Constitutional Development
(Director-General); Magistrate Holzen and Brinks (Southern Africa)
(Pty)
Ltd (Brinks).
Factual background
[73]
Tulip is a company incorporated and registered in the United Arab
Emirates. It trades in diamonds and operates its business
from the
free zone area at the Dubai International Airport. Tulip imports
diamonds into Dubai from countries like the Republic
of Angola
(Angola) and the Democratic Republic of the Congo (Congo) and
exports them to clients in other countries. For transporting
the
diamonds to Dubai, Tulip employs Brinks which is an operator of a
courier service.
[74] As
an importer and exporter of diamonds, Tulip is a holder of various
Kimberley Process Certificates issued by countries
which are
participants in the Kimberley Process Certification Scheme. The
object of the scheme is to prevent trading in conflict
diamonds.
Conflict diamonds are defined as rough diamonds used by rebel
movements and their allies to finance conflict aimed
at undermining
legitimate governments. These rebel movements and their allies are
described in relevant resolutions of the United
Nations Security
Council.
[75]
Participation in the scheme is voluntary and is open to states and
regional economic integration organisations. Members of
these
organisations are sovereign states. Each shipment of diamonds from a
participant state must be accompanied by a certificate
stating that
the shipment in respect of which it was issued does not constitute
conflict diamonds. Each certificate issued must
meet certain minimum
requirements including this endorsement: “The rough diamonds
in the shipment have been handled in
accordance with the provisions
of the Kimberley Process Certification Scheme for rough diamonds”.
It must also reflect
the country of origin of the shipment; date of
issuance; date of expiry; the issuing authority; the carat weight of
the diamonds;
the number of parcels in the shipment; the
identification of the exporter and importer; the validation of the
certificate by
the Exporting Authority; and that the certificate is
tamper and forgery resistant.
[76] As a
participating state, the United Arab Emirates has issued a number of
such certificates to Tulip. These certificates
enable Tulip to
export diamonds from Dubai to its clients in other countries. On the
strength of similar certificates Tulip is
also able to import
diamonds from Angola and Congo.
[77] One
of Tulip’s clients is a Belgian company called Omega Diamonds
BVBA (Omega). This company was placed under investigation
for
tax-related transgressions. The Belgian authorities suspected that
Omega, under-declared the value of diamonds it imported
into Belgium
from Dubai amongst other breaches. It was during this investigation
that the Belgian authorities stumbled upon invoices
issued by
Brinks, a South African company. These invoices were found during a
search and seizure operation undertaken by the
Belgian authorities
at the offices of Omega in Belgium. The invoices reflected that
Brinks had been transporting diamond shipments
for Tulip from Angola
to Dubai.
[78]
Following the lead to Brinks, the Belgian authorities requested the
South African authorities to gather certain evidence
from Brinks.
The South African authorities accepted and dealt with the request
purportedly in terms of the Co-operation in Criminal
Matters Act
50
(Co-operation Act). This Act facilitates, among
other matters, the gathering of evidence in South Africa at the
request of a foreign
state, if such evidence is required by
authorities in the foreign state for the purposes of investigating
crime or of prosecution.
51
In terms of section 7 of the Co-operation Act, a
request of this nature must be submitted to the Director-General who
must satisfy
himself or herself of the existence of certain facts
before asking for the Minister’s approval. Once the approval
is granted,
the Director-General must forward the request to the
magistrate within whose area of jurisdiction the witness resides.
[79]
The magistrate to whom the request is forwarded must issue a
subpoena, directing the witness to appear before him or her
to give
evidence or produce any book, document or object relating to the
request. Evidence of this nature should be obtained
under oath and,
upon completion, the magistrate concerned is obliged to submit a
certified copy of such evidence to the Director-General
together
with the statement of the amount of costs incurred in connection
with the process.
52
[80] In a
letter dated 23 December 2008, a Magistrate in Antwerp, Belgium
addressed a request for the gathering of specified evidence
to the
Director-General. The latter sought and obtained ministerial
approval before forwarding the request to the Johannesburg

Magistrate’s Court.
[81] In
view of the fact that Tulip’s standing is in dispute, it is
necessary to set out in greater detail the contents
of the request
as it applied to Tulip. In relevant part the English translation of
the request states:
“
To
inspect the administration and bookkeeping of BRINKS in SOUTH AFRICA
in order to:
(a) compare and investigate the
nine invoices coming from BRINKS SOUTH AFRICA which were found in
the office of OMEGA DIAMONDS
(and which will be in possession of the
Police Officers travelling to South Africa).
(b) search and establish other
similar transports made from ANGOLA and CONGO to DUBAI.
(c)
search and investigate
all invoices and diamond transports made for and to the following
companies in DUBAI (UAE): TULIP DIAMONDS
, ORCHID, CONDA
DIAMONDS, ASTER, and GEM ROUGH DIAMONDS, including IAXHON on the
British Virgin Islands.
. . .
At BRINKS SOUTH AFRICA to seize
and take copy of all relevant documents (including invoices,
Kimberley Certificates, packing lists,
shipment dockets, documents
in relation to insurances taken, instructions, correspondences,
co-ordinates of principals/intermediaries,
received instructions,
meetings/conversations held, etc.).
To interview the responsible
persons of BRINKS on the diamond transports made, invoicing and
relationship which they had with
the OMEGA DIAMONDS in Antwerp.”
(Emphasis added.)
[82]
Upon receipt of the request, Magistrate Holzen, sitting in Kempton
Park Magistrate’s Court and purporting to act in
terms of the
request, issued a subpoena that required Ms Jane Hamilton of Brinks
to appear before him in Court at the Kempton
Park Magistrate’s
Court, on 6 November 2009. The subpoena, apart from warning Ms
Hamilton that a failure to comply with
it would constitute an
offence under the Criminal Procedure Act
53
,
stated that should she produce an affidavit setting out the required
information to the satisfaction of the Deputy Director
of Public
Prosecutions (DPP) on or before 30 October 2009, her attendance at
Court would not be required. The subpoena is dated
1 October 2009.
The subpoena was served at the offices of Brinks on the same day and
the return of service reflects the contact
particulars of the
investigating officer and the prosecutor, both of whom were South
African officials.
[83] Of
importance is the fact that the subpoena described in detail the
information which Brinks was required to produce. In
addition to
invoices issued by Brinks to Omega, the subpoena directed Ms
Hamilton to:
“
Provide
copies of all the Brink’s (Southern Africa) Pty Ltd invoices
regarding the transportation of diamonds to and for
the entities as
described in the attached schedule marked ‘2’.
Provide copies of the relevant
work/client files, including invoices, Kimberley Certificates,
Packing lists, shipment dockets,
documents in relation to insurances
taken, instructions, correspondence, coordination of
principal/intermediaries, received instructions
and meetings and
conversations held, of the entities as mentioned in schedule ‘2’.
Provide an affidavit setting
out all the required information as requested.”
[84] The
entities mentioned in schedule 2 of the subpoena include Tulip.
Tracking the information described in the letter of request,
the
subpoena requires Ms Hamilton to produce various documents belonging
to Tulip and other companies. These documents included
work files,
Kimberley Process Certificates, correspondence, instructions
received from Tulip, its meetings and conversations,
which came into
existence within the period commencing on 1 January 2003 and ending
on 3 September 2008.
Litigation history
[85] In
October 2009 Tulip heard about the subpoena served on Brinks.
Fearing that its rights would be violated, Tulip approached
Brinks
and there was an exchange of letters between lawyers representing
both parties. Brinks adopted the stance that on the
directive of the
subpoena it would produce the documents listed in it, even though
Brinks conceded that they were confidential.
Faced with the threat,
Tulip and another company instituted an urgent application for an
interdict restraining the production
of their documents by Brinks.
The South Gauteng High Court, Johannesburg (High Court) granted the
interdict pending the finalisation
of the application to review
decisions taken by the Director-General, the Minister and the
Magistrate.
[86] The
review application was duly launched in the High Court. Six grounds
were asserted in challenging the impugned decisions.
They were: (a)
the failure by the Director-General to take relevant considerations
into account; (b) non-compliance with the
jurisdictional requirement
that the Director-General had to satisfy himself that Omega had
committed an offence; (c) the validity
of the Magistrate’s
appointment; (d) the wrong invocation by the Magistrate of section
205 of the Criminal Procedure Act
instead of sections 7 and 8 of the
Co-operation Act; (e) non-observance of procedural fairness, in that
Tulip was denied an opportunity
to be heard before the impugned
decisions were taken; and (f) the over-breadth of the letter of
request and the subpoena, demanding
information spanning a period in
excess of five years.
[87] The
High Court held that because Tulip was a foreign company with no
presence in South Africa, it lacked standing to institute
the
application. Nonetheless, the High Court proceeded to consider three
of the grounds of review and rejected them as lacking
merit. The
grounds considered did not include the appointment of the Magistrate
and the alleged incorrect use of section 205
of the Criminal
Procedure Act in issuing the subpoena. The application was dismissed
with costs.
[88]
An appeal to the Supreme Court of Appeal suffered a similar fate.
54
However, the Supreme Court of Appeal held that
the High Court erred in holding that Tulip’s lack of standing
stemmed from
the fact that it was a foreign company with no presence
in this country. Implicitly, the Supreme Court of Appeal held that a

foreign litigant, like Tulip, could enforce a protectable interest
conferred by the Bill of Rights in our Constitution.
[89]
But the Supreme Court of Appeal came to the conclusion that Tulip
did not have the necessary legal standing because it failed
to prove
“confidentiality to which it laid claim in relation to the
documents in Brinks’ possession”.
55
It criticised Tulip for failing to show which
documents contained confidential information, the nature of such
information and
the legal basis for asserting confidentiality. One
need only to have regard to the documents, said the Court, to see
that they
are by their nature not confidential.
56
In view of its decision on standing, the Supreme
Court of Appeal considered it unnecessary to deal with the merits.
Leave to appeal
[90]
There can be no doubt that this case raises constitutional issues.
Tulip claims that the release of documents held by Brinks
would
violate its right to privacy. Moreover, on the merits Tulip mounts
an attack on the exercise of public power by the Director-General,

the Minister and the Magistrate. In addition one of the grounds of
review raised is the question of legality.
[91] It
is also in the interests of justice that leave be granted. Already
the case has been to the Supreme Court of Appeal and
Tulip has no
other forum to appeal to but this Court. As will be apparent later,
prospects of success are good.
Issues
[92] The
first issue is whether at common-law Tulip has legal standing in the
sense that it has a direct and substantial interest
in the documents
held by Brinks and which the impugned subpoena directs Brinks to
produce. The same requirement extends to decisions
taken on the
basis of the letter of request which tabulates the documents listed
in the subpoena. The second is whether Tulip
has made out a case for
standing in respect of the privacy claim. If Tulip has standing then
it becomes necessary to consider
the grounds of review mentioned
above.
Does Tulip have standing at common law?
[93]
In simple terms the purpose of this enquiry is to establish if Tulip
is entitled to protect the documents in question against
disclosure
or from being accessed by anybody without its permission. It is the
entitlement to prosecute a claim or enforce a
right which clothes a
party with standing.
57
The onus falls upon a party like Tulip to show
that it has the right to institute proceedings.
58
In other words, Tulip must establish that it has
a direct and substantial interest in the outcome of the
determination whether
the documents in question may be disclosed.
[94]
Ordinarily an applicant has to make allegations in the founding
affidavit which, if established, would show that it has legal

standing.
59
Consistent with this requirement Tulip dealt with
the issue of standing in the founding affidavit in the High Court in
these terms:
“
In
the present matter no criminal proceedings have been instituted or
are contemplated against the applicant. Notwithstanding
this, a
subpoena has been issued at the instance of a foreign state
requiring a third party (Brinks) to disclose information
and
documents which are purportedly relevant to an investigation by
Belgian authorities, not into the applicant, but rather a
Belgian
company (Omega). This is an extraordinary request by any standards.
Giving effect to the respondents’ decisions
will materially
impact upon the applicant’s proprietary rights in its
confidential business information, which rights will
be immediately
infringed on the handing over [of] the documents called for in the
subpoena.”
[95] In
plain terms Tulip claims that its right of ownership relating to the
documents would be violated if those documents are
produced by
Brinks. The violation will take immediate effect once the disclosure
is made. It goes on to describe the documents
as containing
confidential business information.
[96]
Regard to the letter of request and the subpoena, both of which are
quoted above, confirms the assertion that some of the
documents
which Brinks is called upon to produce, belong to Tulip. Ownership
of those documents alone suffices to give Tulip
the necessary legal
standing. The issue of confidentiality is additional to this fact.
It serves to illustrate that over and
above ownership rights,
Tulip’s other rights like the right to privacy were
threatened. The letter of request and the subpoena
forms part of the
founding affidavit.
[97]
Accordingly, the Supreme Court of Appeal erred in its approach to
determining the issue of standing and also in its assessment
of the
facts. It can never be suggested that the owner of the subject
matter of litigation has no standing to protect its rights
in such
subject matter. The letter of request lists and the subpoena demands
that Brinks should produce, amongst other documents,
Kimberley
Process Certificates, copies of the minutes of meetings,
conversations and instructions given by Tulip, without its

permission. Therefore, Tulip in its capacity as the owner of the
documents has a direct and substantial interest in the litigation
in
which decisions relating to their disclosure are challenged. For
these reasons, I conclude that Tulip has established standing
at
common law.
Standing in constitutional claims
[98]
In any event it was not appropriate for the Supreme Court of Appeal
to approach the issue of standing from the common-law
point of view
only in the light of the fact that Tulip also asserted a
constitutional right to privacy. In so far as claims based
on rights
in the Bill of Rights are concerned, our law requires a lower
standard for standing which is broader than the common-law
position.
This is so because section 38 of the Constitution lists persons
who may institute proceedings in cases where a
right in the Bill of
Rights is infringed or there is a threat of infringement.
60
[99]
Under the common law, a party who approaches a court for relief must
ordinarily show that its rights were violated or threatened.
Such
party cannot seek relief on the basis that the rights of another
person were violated. Section 38 changed all of this when
it comes
to violation of rights in the Bill of Rights. It expanded the list
of persons who may institute proceedings. If the
right-holder is
unable to approach a competent court, another person may do so on
its behalf. Members of a group or class of
persons may also initiate
proceedings on behalf of or in the interests of the group or class.
An association too can commence
proceedings on behalf of its
members. And anyone with legal capacity can bring proceedings in the
public interest provided that
they identify the interest on the
basis of which they approach the court.
61
[100]
However, where a litigant approaches a court acting in its own
interest, it must show the interest directly affected by
the
impugned decision. This interest may be real or potential but not
hypothetical or academic. Recently this Court affirmed
this
principle in
Giant Concerts.
There this Court said:
“
The
own-interest litigant must, therefore, demonstrate that his or her
interests or potential interests are directly affected
by the
unlawfulness sought to be impugned.”
62
[101] In
this case, as stated earlier, Tulip has shown that the impugned
decisions directly affect its ownership of the documents
in question
and that compliance with the subpoena threatened its right to
privacy. Those decisions, in particular the subpoena,
coerce Brinks
to hand over documents belonging to Tulip to South African
authorities who intend to pass them to the Belgian authorities.
The
unlawfulness in taking those decisions and the issuance of the
subpoena interferes with Tulip’s rights of ownership
in the
documents in question and poses a threat to its privacy. There can
be no doubt that Tulip’s interest in the unlawfulness
of those
decisions is real and not potential. It certainly cannot be
described as hypothetical or academic. The impugned decisions
affect
it immediately.
[102]
It will be recalled that in rejecting the High Court’s
reasoning for finding that Tulip lacked standing, the Supreme
Court
of Appeal acknowledged that a party like Tulip may invoke the rights
in the Bill of Rights. It was not necessary for such
party, so it
was held, to be physically in the country. The acknowledgement is,
however, at variance with the approach adopted
by the Supreme Court
of Appeal to Tulip’s standing. For Tulip to meet the standing
requirements, that Court required it
to prove that the documents
subject to disclosure were indeed confidential. This is not the
correct approach to a claim based
on a right in the Bill of Rights.
Section 38 of the Constitution decrees that in the case of such
claim, the applicant needs
only to allege that an infringement or a
threat to infringe its right entrenched in the Bill of Rights has
occurred.
63
[103]
Consistent with the approach prescribed by section 38, the
allegations made by an applicant in its founding papers are taken
to
be correct when the issue of standing is determined. The Supreme
Court of Appeal affirmed this principle in
Trinity
Asset Management (Pty) Ltd and Others v Investec Bank Ltd and
Others.
64
In that case the Court said:
“
In
the circumstances of this case, it will be recalled, the assertions
made by the appellants, whose locus standi is being challenged,
have
to be accepted as correct. Thus we must assume, for the purposes of
considering whether the appellants have locus standi
,
that their assertion that the loan agreement is invalid is correct.
If that is so they must be able to apply to interdict the
holding of
the meeting before which materially incorrect information regarding
the legal status of the agreement has been put
by the directors.”
65
[104] In
the circumstances, I hold that Tulip has, by alleging that its right
to confidentiality is threatened, established standing
even in terms
of the constitutional requirements.
Merits
[105] It
was the subpoena issued by the Magistrate which triggered the launch
of the present proceedings. It is therefore convenient
to commence
the determination of the merits with the consideration of the
grounds of review relevant to the issuance of the subpoena.
[106] The
first ground relates to the referral of the request to the
Magistrate. It is common cause that the request was forwarded
to the
Magistrate purportedly in terms of section 7(5) of the Co-operation
Act. This section provides that on being notified
of the Minister’s
approval, the Director-General shall forward the request to the
magistrate within whose area of jurisdiction
the witness resides.
[107]
The first difficulty relates to the identification of Magistrate
Holzen as the person to whom the request had to be forwarded.
The
Supreme Court of Appeal described this issue as one of the grounds
of review and defined it as the validity of the Magistrate’s

appointment.
66
The difficulty that arises in this regard is that
section 7(5) contemplates that the magistrate to whom the
request is forwarded
must be a magistrate within whose territorial
jurisdiction the witness resides. This requirement identifies the
magistrate who,
in terms of section 8 of the Co-operation Act, is
empowered to issue a subpoena. It is not any magistrate who has the
power but
a magistrate of the area in which the witness resides.
67
[108]
There is no indication whatsoever in the record that Magistrate
Holzen was the right magistrate to issue the subpoena. Advocate

Simelane who was the Director-General that forwarded the request
does not tell us how the matter ended up with Magistrate Holzen.
In
his affidavit Advocate Simelane merely states:
“
On
being notified by the Minister of his approval, I caused to be
forwarded the request to the Johannesburg Magistrate’s
Court,
in whose jurisdiction both Omega and Levidiam are situate, the
request as contemplated in section 7(5) of the Co-operation
Act, and
requiring him to designate a magistrate to conduct the examination,
as contemplated in section 8 of the [Co-operation
Act].”
[109] It
is clear from this statement that the Director-General forwarded the
request to the Johannesburg Magistrate’s Court
for a
magistrate to be designated to conduct an examination in terms of
section 8. It further appears from the same statement
that the
reason for forwarding the request to the Johannesburg Magistrate’s
Court was that “both Omega and Levidiam
are situate”
there, within the area of jurisdiction of that Court. But none of
these persons was a witness required to
appear before a magistrate
for purposes of giving evidence, in compliance with the letter of
request. It is not clear why and
on what basis the Director-General
came to the conclusion that the letter of request should be
forwarded to the Magistrate’s
Court of the area where those
two persons were allegedly “situate”.
[110]
The respondents, including the Director-General himself, asserted
that the request they acceded to, sought to investigate
Brinks. If
that were the case, one would have expected that the request would
be forwarded to the magistrate of the area in which
Brinks was a
resident. In our law, a local company resides in the area where its
head office is located or where its principal
place of business is.
68
There is no evidence showing that Brinks’
head office or its principal place of business falls within the area
of jurisdiction
of the Johannesburg Magistrate’s Court.
[111] But
the matter is further complicated by the fact that Magistrate Holzen
was not based in the Johannesburg Magistrate’s
Court when he
purportedly exercised the power to issue the subpoena. The subpoena
itself indicates unmistakably that it was issued
by Mr Holzen in his
capacity as a magistrate at the Kempton Park Magistrate’s
Court. The date stamp on it bears this out.
In its body it directs
Ms Hamilton to appear before a magistrate in Court E at the
Magistrate’s Court of Kempton Park.
Its title reads: “In
the Magistrates’ Court for the District of Kempton Park held
at Kempton Park.”
[112] As
to how a request that was forwarded to the magistrate in the
district of Johannesburg ended up with Magistrate Holzen
in Kempton
Park, remains a mystery. The mystery deepens when one considers that
the record is silent on where Brinks resides.
Instead what is clear
is the fact that the Director-General had different persons in mind
when he determined where to forward
the request. On these facts the
Director-General did not comply with the provisions of section 7(5)
of the Co-operation Act when
he forwarded the request. It is also
not clear that the request on which Magistrate Holzen acted was
forwarded to him by the
Director-General as required by section 7(5)
or by someone else. Therefore it has not been established that
Magistrate Holzen
was the right magistrate to exercise the power
conferred by section 8 of the Co-operation Act.
Use of section 205
[113]
Another serious defect is that instead of acting in terms of section
8 of the Co-operation Act, Magistrate Holzen consciously
and
deliberately invoked section 205 of the Criminal Procedure Act. The
heading of the subpoena he issued reads: “SUBPOENA
IN TERMS OF
SECTION 205 OF ACT NO 51 OF 1977”. Reference to Act 51 of 1977
means the Criminal Procedure Act. In its body
the subpoena tells Ms
Hamilton that she was required to appear before the magistrate on
6 November 2009 to be examined
by the authorised DPP or
Public Prosecutor. It goes on to say that should she furnish an
affidavit setting out all the required
information, to the
satisfaction of the DPP or Public Prosecutor, on or before 30
October 2009, her attendance would not be required.
The subpoena
proceeds to warn her that a failure to comply with it would result
in a warrant for her arrest being issued. It
further cautions her
that the failure would constitute an offence under the Criminal
Procedure Act. It concludes by instructing
an authorised official to
serve it on her and report back to the DPP or a Public Prosecutor.
[114]
All of these are steps mandated by section 205 where a subpoena is
issued under that section. In terms of the section a
witness that
appears before the magistrate must be examined by an authorised DPP
or Prosecutor. And if the witness concerned
furnished the
information sought to the satisfaction of the DPP or Prosecutor
before the date of appearance, he or she would
be excused from
appearing. The subpoena itself is issued upon a request by the DPP
or Prosecutor. Accordingly, the whole process
is driven by the DPP
or Prosecutor.
69
And the request by the DPP is a jurisdictional
fact without the existence of which a subpoena cannot be issued.
[115] Yet
no DPP or Prosecutor has a role to play in a process mandated by
section 8 of the Co-operation Act. This section
provides:
“
(1)
The magistrate to whom a request has been forwarded in terms of
section 7(5) shall cause the person whose evidence is
required,
to be subpoenaed to appear before him or her to give evidence or to
produce any book, document or object and upon the
appearance of such
person the magistrate shall administer an oath to or accept an
affirmation from him or her, and take the evidence
of such person
upon interrogatories or otherwise as requested, as if the said
person was a witness in a magistrate’s court
in proceedings
similar to those in connection with which his or her evidence is
required: Provided that a person who from lack
of knowledge arising
from youth, defective education or other cause, is found to be
unable to understand the nature and import
of the oath or the
affirmation, may be admitted to give evidence in the proceedings
without taking the oath or making the affirmation:
Provided further
that such person shall, in lieu of the oath or affirmation, be
admonished by the magistrate to speak the truth,
the whole truth and
nothing but the truth.
(2) A person referred to in
subsection (1) shall be subpoenaed in the same manner as a person
who is subpoenaed to appear as a
witness in proceedings in a
magistrate’s court.
(3) Upon completion of the
examination of the witness the magistrate taking the evidence shall
transmit to the Director-General
the record of the evidence
certified by him or her to be correct, together with a certificate
showing the amount of expenses
and costs incurred in connection with
the examination of the witness.
(4) If the services of an
interpreter were used at the examination of the witness, the
interpreter shall certify that he or she
has translated truthfully
and to the best of his or her ability, and such certificate shall
accompany the documents transmitted
by the magistrate to the
Director-General.”
[116]
Section 8 sets out in detail the functions of a magistrate to whom a
request has been forwarded in terms of section 7(5).
The first issue
that is apparent from the reading of the section is that the request
must be for obtaining evidence. The section
says the magistrate
“shall cause the person whose evidence is required, to be
subpoenaed to appear before him or her to
give evidence or to
produce any book, document or object”. Upon appearance of the
person concerned, the magistrate is required
to administer an oath
or accept an affirmation from the person before taking evidence from
him or her. The evidence must be taken
upon interrogatories or
following some other method stated in the request.
[117] It
is apparent from the text of the section that the manner in which
the evidence is taken is determined by the request
and that the
evidence must be taken by the magistrate himself or herself, with
the witness being under oath or affirmation. The
section underscores
the need for an oath or affirmation by requiring the magistrate to
admonish a person “to speak the
truth, the whole truth and
nothing but the truth” if the magistrate finds the person in
question to be unable to understand
the nature and import of an oath
or affirmation. Upon completion of the examination of the witness,
the magistrate taking evidence
must submit to the Director-General a
certified copy of the record of the evidence. This record may be
accompanied by a certificate
showing the amount of expenses and
costs incurred in connection with the taking of the evidence.
[118] The
process authorised by section 8 of the Co-operation Act is
materially different from the one permitted by section 205
of the
Criminal Procedure Act. Members of the National Prosecuting
Authority play no role in a section 8 process. In fact the
section
does not refer to them at all. In a section 8 process, the
examination of the witness is conducted by the magistrate
who takes
the evidence. At the completion of the process, the magistrate is
obliged to submit to the Director-General a certified
copy of the
record.
[119] A
person subpoenaed under section 8 must appear before the magistrate
on the appointed date for the purpose of giving evidence.
He or she
cannot avoid appearing by submitting an affidavit. He or she has to
take an oath or affirmation before the magistrate
who takes the
evidence which must be tendered orally. Therefore a process mandated
by section 205 of the Criminal Procedure Act
cannot be equated to
the process authorised by section 8 of the Co-operation Act. The two
processes are like chalk and cheese.
Section 205 of the Criminal
Procedure Act does not confer the power to take evidence in terms of
a request submitted to a magistrate
under section 7(5) of the
Co-operation Act.
[120] But
counsel for the Minister and the Director-General submitted that the
Magistrate had competently used section 205. Relying
on
De Lange
v Smuts NO and Others
,
70
counsel submitted that because section 205 forms part of the
criminal justice system, the Magistrate was entitled to invoke it
as
one of the mechanisms provided.
[121] The
argument has no merit and reliance on
De Lange
is misplaced.
That case is no authority for the proposition that where the
exercise of power is requested under a particular section,
it is
open to a magistrate to act in terms of a different provision in a
different statute. More precisely,
De Lange
does not say that
upon receipt of a request submitted in terms of section 7(5) of the
Co-operation Act, a magistrate is entitled
to issue a subpoena by
authority of section 205 of the Criminal Procedure Act. The Court in
that case could not say so because
that was not the issue before it.
All that
De Lange
said about section 205 was that it was
constitutionally compliant.
71
[122] If
a functionary consciously chooses a particular provision as
authority for the function he or she performs and it turns
out that
the chosen provision does not authorise the performance of the
function concerned, the purported exercise of power will
be invalid.
It cannot be rescued by the claim that the same functionary is
granted the power exercised but by a different provision.
72
[123] The
argument that reliance by a public functionary on an incorrect
provision, for the exercise of power, does not invalidate
the action
taken if the same functionary is empowered by another provision to
perform the impugned function, was considered by
this Court in
Minister of Education v Harris
.
73
In that case the Court said:
“
[T]he
applicability of this line of reasoning must depend on the
particular facts of each case, especially whether the functionary

consciously elected to rely on the statutory provision subsequently
found to be wanting.
. . .
In this case, there is no
suggestion in the affidavits filed by the Minister of an
administrative error. On the contrary, the
notice in the present
matter not only cites section 3(4)(i) of the National Policy
Act three times as the source of its
authority, it identifies itself
with the Act by means of its heading. . . . There can be little
question then that the provision
was deliberately chosen”.
74
[124]
Similarly, in the present case there is no indication that
Magistrate Holzen erroneously referred to section 205 of the

Criminal Procedure Act when he meant to refer to section 8 of the
Co-operation Act. The Magistrate elected to abide the decision
of
the Court and did not file an affidavit in this Court explaining his
choice of section 205. But as stated earlier, it
is apparent
from the subpoena itself that the choice was made deliberately.
Reliance on section 205 as the source of power was
made in
circumstances where this section did not apply. Accordingly, the
Magistrate was not authorised to issue the impugned
subpoena.
Therefore, the subpoena is invalid.
[125]
Having reached this conclusion it is not necessary to consider the
attack based on the over-breadth and unintelligibility
of the
subpoena. Nor will any meaningful purpose be served by a
determination of the other grounds of review.
[126]
For these reasons I would uphold the appeal.
For
the Applicant: Advocate G Marcus SC, Advocate A Stein and
Advocate I Currie instructed by Edward Nathan Sonnenberg.
For
the First and Third Respondents: Advocate K D Moroka SC and Advocate
M Sello instructed by the State Attorney.
1
3
of 2000.
2
The
Request states: “[i]t goes without saying that inquiry results
obtained by means of the current Rogatory Request will
not be used
in any other inquiry than this Rogatory Request.”
3
75
of 1996.
4
51
of 1977.
5
A
second company, Aster Diamonds FZCO, which was named in the
subpoena, also sought to restrain the disclosure of its documents
to
Belgian authorities.
6
Section
7(1) of the Constitution provides: “This Bill of Rights is a
cornerstone of democracy in South Africa. It enshrines
the rights of
all people in our country and affirms the democratic values of human
dignity, equality and freedom.”
7
Tulip
Diamonds FZE v Minister of Justice and Constitutional Development
and Others
[2012] ZASCA 111
;
2013 (1) SACR 323
(SCA).
8
Id
at para 13.
9
The
Preamble to the Co-operation Act states its purpose as follows:
“
To facilitate the provision
of evidence and the execution of sentences in criminal cases and the
confiscation and transfer of
the proceeds of crime between the
Republic and foreign States; and to provide for matters connected
therewith.”
10
Section
7 of the Co-operation Act provides:
“
(1) A request by a court or
tribunal exercising jurisdiction in a foreign State or by an
appropriate government body in a foreign
State, for assistance in
obtaining evidence in the Republic for use in such foreign State
shall be submitted to the Director-General.
(2) Upon receipt of such request the
Director-General shall satisfy himself or herself—
(a) that proceedings have been instituted in a court or
tribunal exercising jurisdiction in the requesting State; or
(b) that there are reasonable grounds for believing
that an offence has been committed in the requesting State or that
it is necessary
to determine whether an offence has been so
committed and that an investigation in respect thereof is being
conducted in the
requesting State.
(3) For purposes of subsection (2) the Director-General
may rely on a certificate purported to be issued by a competent
authority
in the State concerned, stating the facts contemplated in
paragraph (a) or (b) of the said subsection.
(4) The Director-General shall, if satisfied as
contemplated in subsection (2), submit the request for assistance in
obtaining
evidence to the Minister for his or her approval.
(5) Upon being notified of the Minister’s
approval the Director-General shall forward the request contemplated
in subsection
(1) to the magistrate within whose area of
jurisdiction the witness resides.”
11
Section
8 of the Co-operation Act reads:
“
(1) The magistrate to whom a
request has been forwarded in terms of section 7(5) shall cause the
person whose evidence is required,
to be subpoenaed to appear before
him or her to give evidence or to produce any book, document or
object and upon the appearance
of such person the magistrate shall
administer an oath to or accept an affirmation from him or her, and
take the evidence of
such person upon interrogatories or otherwise
as requested, as if the said person was a witness in a magistrate’s
court
in proceedings similar to those in connection with which his
or her evidence is required: Provided that a person who from lack
of
knowledge arising from youth, defective education or other cause, is
found to be unable to understand the nature and import
of the oath
or the affirmation, may be admitted to give evidence in the
proceedings without taking the oath or making the affirmation:

Provided further that such person shall, in lieu of the oath or
affirmation, be admonished by the magistrate to speak the truth,
the
whole truth and nothing but the truth.
(2) A person referred to in subsection (1) shall be
subpoenaed in the same manner as a person who is subpoenaed to
appear as a
witness in proceedings in a magistrate’s court.
(3) Upon completion of the examination of the witness
the magistrate taking the evidence shall transmit to the
Director-General
the record of the evidence certified by him or her
to be correct, together with a certificate showing the amount of
expenses
and costs incurred in connection with the examination of
the witness.
(4) If the services of an interpreter were used at the
examination of the witness, the interpreter shall certify that he or
she
has translated truthfully and to the best of his or her ability,
and such certificate shall accompany the documents transmitted
by
the magistrate to the Director-General.”
12
Section
33(1) of the Constitution provides: “Everyone has the right to
administrative action that is lawful, reasonable
and procedurally
fair.”
13
In
Falk and Another v National Director of Public Prosecutions
[2011] ZACC 26
;
2012 (1) SACR 265
(CC);
2011 (11) BCLR 1134
(CC)
(
Falk
) at paras 85-92, this Court followed a broad approach
to interpreting the Co-operation Act.
14
Id
at para 92.
15
See
Paddock Motors (Pty.) Ltd. v Igesund
1976 (3) SA 16
(A) at
23H, cited in
Carmichele v Minister of Safety and Security
and Another (Centre for Applied Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at
para 31 fn 11. See also
Van Rensburg v Van Rensburg en Andere
1963 (1) SA 505
(A) at 509H-510A.
16
See
[14] above.
17
Jacobs
en ’n Ander v Waks en Andere
[1991] ZASCA 152
;
1992 (1) SA 521
(A) at 534A-B
and
United Watch and Diamond Co (Pty.) Ltd. and Others v Disa
Hotels Ltd and Another
1972 (4) SA 409
(CPD) at 415B. See also
Giant Concerts CC v Rinaldo Investments (Pty) Ltd and Others
[2012] ZACC 28
;
2013 (3) BCLR 251
(CC) (
Giant Concerts
)
at para 41(a) and Hoexter
Administrative Law in South Africa
2 ed (Juta & Co, Cape Town 2012) at 488.
18
Giant
Concerts
above n 17 at para 28.
19
Id
at paras 29-35.
20
Id
at para 43.
21
Id
at para 41(c).
22
Id
at paras 35 and 53.
23
See
[14] above.
24
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In re Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001
(1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) at para 18.
25
Id.
26
Bernstein
and Others v Bester
and Others NNO
[1996] ZACC 2
;
1996
(2) SA 751
(CC);
1996 (4) BCLR 449
(CC) at paras 75 and 85.
27
See
[14] above.
28
Compare
Davis v Canada (Attorney General)
(1997) 49 CRR (2d) 114
(BCSC) at 122.
29
Giant
Concerts
above n 17 at para 33.
30
Id
at para 30.
31
Id
at para 41(f).
32
See
above n 2.
33
See
Viking Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech
Systems (Pty) Ltd and Another
[2010] ZACC 21
;
2011 (1) SA 327
(CC);
2011 (2) BCLR 207
(CC) at para 38, which states that“[i]t
is unlikely that a decision to investigate and the process of
investigation, which
excludes a determination of culpability, could
itself adversely affect the rights of any person, in a manner that
has a direct
and external legal effect.”
34
Hoffman
and Zeffertt
The South African Law of Evidence
4 ed
(Butterworths, Durban 1988) at 236 state that there is a small class
of persons to whom privilege applies. In the circumstances
of this
case, Tulip has laid no basis for us to conclude that it is a member
of that class.
35
Giant
Concerts
above n 17 at paras 34 and 58.
36
See
above n 10.
37
Section
7(5) of the Co-operation Act.
38
See
above n 11.
39
Beheersmaatschappij
Helling I NV and Others v Magistrate, Cape Town, and Others
2007
(1) SACR 99
(CPD) at 109g-h.
40
See
Murray and Harris
Mutual Assistance in Criminal Matters
(Sweet and Maxwell, London 2000) at 78 for the English perspective.
41
32
of 1944. Section 51 empowers magistrates in ordinary proceedings to
issue subpoenas in the manner described by the Magistrates’

Court Rules.
42
Section
51, in relevant part, provides:
“
Any party
to any civil action or other proceeding where the attendance of
witnesses is required may procure the attendance of any witness.”

(Emphasis added.)
This
is incongruent with section 7 of the Co-operation Act which empowers
only the Director-General to cause the issuing of a
subpoena in
order to accede to a request.
43
Section
8(1) of the Co-operation Act.
44
See
above n 10.
45
Section
7(2)(a) of the Co-operation Act.
46
Section
7(2)(b) of the Co-operation Act.
47
Id.
48
Section
29 of the Co-operation Act states:
“
(1) The Director-General may
delegate to an official of the Department of Justice any function
conferred upon him or her by or
under this Act.
(2) A function so delegated, when performed by the
delegate, shall be deemed to have been performed by the
Director-General.
(3) The delegation of any function under this section
shall not prevent the performance of such function by the
Director-General
himself or herself.”
49
See
Van Rensburg and Another NNO v Naidoo and Others NNO; Naidoo and
Others NNO v Van Rensburg NO and Others
[2010] ZASCA 68
;
2011
(4) SA 149
(SCA) and
Chairman, Board on Tariffs and Trade, and
Others v Teltron (Pty) Ltd
[1996] ZASCA 142
;
1997 (2) SA 25
(AD).
50
75
of 1996.
51
Section
7 of the Co-operation Act provides:
“
(1) A request by a court or
tribunal exercising jurisdiction in a foreign State or by an
appropriate government body in a foreign
State, for assistance in
obtaining evidence in the Republic for use in such foreign State
shall be submitted to the Director-General.
(2) Upon receipt of such request the Director-General
shall satisfy himself or herself—
(a) that proceedings have been instituted in a court or
tribunal exercising jurisdiction in the requesting State; or
(b) that there are reasonable grounds for believing
that an offence has been committed in the requesting State or that
it is necessary
to determine whether an offence has been so
committed and that an investigation in respect thereof is being
conducted in the
requesting State.
(3) For purposes of subsection (2) the Director-General
may rely on a certificate purported to be issued by a competent
authority
in the State concerned, stating the facts contemplated in
paragraph (a) or (b) of the said subsection.
(4) The Director-General shall, if satisfied as
contemplated in subsection (2), submit the request for assistance in
obtaining
evidence to the Minister for his or her approval.
(5) Upon being notified of the Minister’s
approval the Director-General shall forward the request contemplated
in subsection
(1) to the magistrate within whose area of
jurisdiction the witness resides.”
52
This
procedure is contained in section 8 of the Co-operation Act. Its
provisions are set out in [115] below.
53
51
of 1977.
54
Tulip
Diamonds FZE v Minister of Justice and Constitutional Development
and Others
[2012] ZASCA 111
;
2013 (1) SACR 323
(SCA) (Supreme
Court of Appeal judgment).
55
Id
at para 15.
56
Id.
57
Trakman
NO v Livshitz and Others
1995 (1) SA 282
(A) at 287D-F.
58
Mars
Incorporated v Candy World (Pty) Ltd
[1990] ZASCA 149
;
1991 (1) SA 567
(A) at 575.
59
United
Methodist Church of South Africa v Sokufundumala
1989 (4) SA
1055
(O) at 1057F-H.
60
See
[28] above for the text of section 38.
61
Lawyers
for Human Rights and Another v Minister of Home Affairs and Another
[2004] ZACC 12
;
2004 (4) SA 125
(CC);
2004 (7) BCLR 775
(CC) at para
16.
62
Giant
Concerts
above n 17 at para 43.
63
Doctors
for Life International v Speaker of the National Assembly and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006 (12) BCLR 1399
(CC) at
para 217.
64
[2008]
ZACSA 158;
2009 (4) SA 89
(SCA).
65
Id
at para 37.
66
Supreme
Court of Appeal judgment above n 54 at para 5.
67
Section
7(5) of the Co-operation Act.
68
Bisonboard
Ltd v K Braun Woodworking Machinery (Pty) Ltd
[1990] ZASCA 86
;
1991 (1) SA 482
(A).
69
Section
205(1) of the Criminal Procedure Act provides:
“
A judge of a High Court, a
regional court magistrate or a magistrate may, subject to the
provisions of subsection (4) and section
15 of the Regulation of
Interception of Communications and Provision of
Communication-related Information Act, 2002, upon the
request of a
Director of Public Prosecutions or a public prosecutor authorised
thereto in writing by the Director of Public Prosecutions,
require
the attendance before him or her or any other judge, regional court
magistrate or magistrate, for examination by the
Director of Public
Prosecutions or the public prosecutor authorised thereto in writing
by the Director of Public Prosecutions,
of any person who is likely
to give material or relevant information as to any alleged offence,
whether or not it is known by
whom the offence was committed:
Provided that if such person furnishes that information to the
satisfaction of the Director of
Public Prosecutions or public
prosecutor concerned prior to the date on which he or she is
required to appear before a judge,
regional court magistrate or
magistrate, he or she shall be under no further obligation to appear
before a judge, regional court
magistrate or magistrate.”
70
[1998]
ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC).
71
Id
at paras 19-20.
72
Administrateur,
Transvaal v Quid Pro Quo Eiendomsmaatskappy (Edms) Bpk
1977 (4)
SA 829
(A).
73
[2001]
ZACC 25
;
2001 (4) SA 1297
(CC);
2001 (11) BCLR 1157
(CC).
74
Id
at paras 17-8.