THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Reportable

CASE  NO: 232/07

In the matter between :

JACOB GEDLEYIHLEKISA ZUMA
First Appellant
THINT HOLDINGS (SOUTHERN AFRICA) (PTY) LTD
Second Appellant
THINT (PTY) LTD
Third Appellant

and

THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
___________________________________________________________________________
Before:
FARLAM, NUGENT, CLOETE, PONNAN & MLAMBO JJA
Heard:
21 SEPTEMBER 2007
Delivered:
8 NOVEMBER 2007
Summary:
Letter of request issued under s 2(2) of the International Co-
operation in Criminal Matters Act 1996 – whether provisions of
the section complied with – whether appellants have standing to
challenge the validity of the request.

Neutral citation:
This judgment may be referred to as J G Zuma v NDPP [2007]
SCA 135 (RSA)
___________________________________________________________________________

NUGENT  JA

NUGENT JA:

[1] On 2 April 2007 the Deputy Judge President of the High Court at Durban
(Levinsohn DJP) issued a letter requesting the Attorney-General of the Republic
of Mauritius to transmit to the Republic of South Africa fourteen documents1
that are in the possession of the authorities in Mauritius and to obtain and to
transmit statements as to their authenticity.  In doing so the learned judge
purported to exercise the authority that is conferred upon a judge in chambers or
a magistrate by s 2(2) of the International Co-operation in Criminal Matters Act
No. 75 of 1996.  The letter of request was issued at the instance of the
Directorate of Special Operations (a division of the office of the National
Director of Public Prosecutions).  The documents and authenticating statements
are said by the Directorate to be required as evidence in any prosecution of the
appellants that might occur.  The appellants say that Levinsohn DJP ought not to
have issued the letter of request and they now appeal, with the leave of the
learned judge, against his decision to do so.

[2] The decision to issue the request has generated a record of fourteen
volumes and voluminous heads of argument.  That impressive volume of paper
ought not to obscure what is in issue.  The learned judge has done no more than
place a judicial imprimatur upon a request to the Attorney-General of Mauritius
to provide assistance for a possible prosecution. His decision has not
compromised or even affected any rights of the appellants.  It was submitted on
behalf of the appellants that their ‘fair trial rights’ (the right of every accused
person to a fair trial that is protected by s 35(3) of the Bill of Rights) have in
some way been compromised but that is not correct.  Their right to be tried

1 At times the record refers to thirteen documents but the discrepancy is not material for present purposes.

fairly, if they are tried at all, is unaffected by the issue of the letter of request,
and will remain unaffected even if the request is acceded to.  It is no doubt so, as
submitted on their behalf, that the evidence that is sought to be obtained by the
letter of request might result in or contribute to their conviction, but it will do so
only if it is admitted at a trial, and their right to object to the admission of the
evidence, on any ground that might properly be available to them, remains intact.
Finally, it was submitted that the decision to issue the letter of request has
compromised the appellants’ right not to have such a request issued, but that
begs the question whether they have such a right at all and I will return to that
later in this judgment. But before doing so I will set out briefly the circumstances
in which the letter of request came to be issued and deal with the grounds upon
which it was submitted that Levinsohn DJP erred in issuing it.

[3] The documents that are sought by the NDPP are at present in the
possession of a body in Mauritius known as the Independent Commission
Against Corruption (ICAC).  They came into the possession of the ICAC in
consequence of an order that was made by the Supreme Court of Mauritius on 5
October 2001.  The order authorised the Director of the Economic Crime Office
of that country (the Director) to enter, amongst others, the premises of a
company known as Thales International Africa Ltd (formerly Thompson-CSF
Africa Ltd) and those of one of its officers, Mr Alain Thetard, and to search for
and remove documents of the kind specified in the order.  The order was applied
for by the Director at the request of the Directorate of Special Operations.

[4] An official in the office of the National Director of Public Prosecutions
(the NDPP), Mr Downer SC, was present at the time the order of the Supreme
Court of Mauritius was executed.  Mr Downer was given copies of the fourteen

documents that are now in issue and the originals were retained by the Director.
(The Economic Crime Office in Mauritius has since been abolished and has been
succeeded by the ICAC.)

[5] About a week after the order was executed Thales International Africa Ltd
and Mr Thetard (and another company whose involvement in the matter has
become immaterial) launched proceedings in the Supreme Court of Mauritius
for, amongst other things, orders restricting the use that could be made of the
documents that had been seized.  The application culminated in an undertaking
being given by the ICAC (recorded by the Supreme Court on 27 March 2003)
not to communicate any of the documents to any person or authority unless it
was authorised to do so by order of a court in Mauritius.  (The other terms of the
agreement are not now material.)

[6] During June 2005 the first appellant (Mr Zuma) was indicted on charges
of corruption, and in November 2005 the second and third appellants (Thint
Holdings and Thint respectively) were similarly indicted.  They were called upon
to answer to the charges in the High Court at Durban on 31 July 2006.

[7] On 7 December 2005 the NDPP sought to secure possession of the
original documents (and authenticating evidence) that are now in issue for use as
evidence in the impending trial by invoking the provisions of s 2(1) of the Act.2
That section permits ‘a court or the officer presiding at proceedings’, in
prescribed circumstances, to issue a letter of request for assistance from a foreign

2  Section 2(1):
‘If it appears to a court or to the officer presiding at proceedings that the examination at such
proceedings of a person who is in a foreign State, is necessary in the interests of justice and that the attendance of
such person cannot be obtained without undue delay, expense or inconvenience, the court or such presiding
officer may issue a letter of request in which assistance from that foreign State is sought to obtain such evidence
as is stated in the letter of request for use at such proceedings.’

state to obtain ‘such evidence as is stated in the letter of request for use at such
proceedings’.  On 22 March 2006 Combrinck J refused to issue the request on
the grounds that s 2(1) conferred authority only upon a court that was seized of
criminal proceedings and the application was postponed to be heard by the court
that was scheduled to try the appellants.

[8] On the day that the trial of the appellants was due to commence the
prosecution applied for the trial to be postponed. The application was argued
before Msimang J and on 20 September 2006 the learned judge ordered that the
postponement be refused and he struck the matter from the roll.

[9] The NDPP then brought the application that is the subject of this appeal (it
was lodged on 4 December 2006) in reliance upon the provisions of s 2(2) of the
Act. That section authorises a judge in chambers, or a magistrate, upon
application to him or her, to issue a letter of request in which assistance from a
foreign state is sought ‘to obtain such information as is stated in the letter of
request for use in an investigation related to an alleged offence’ if he or she is
satisfied
‘(a)
that there are reasonable grounds for believing that an offence has been committed in
the Republic or that it is necessary to determine whether an offence has been
committed;
(b)
that an investigation in respect thereof is being conducted; and
(c)
that for purposes of the investigation it is necessary in the interests of justice that
information be obtained from a person or authority in a foreign State.’
Although the Act permits such an application to be brought ex parte the NDPP
served a copy on the appellants in accordance with an earlier agreement to do so.
Answering and replying affidavits were filed and the application was considered

by Levinsohn DJP in open court on 22 March 2007.  The learned judge issued
the letter of request on 2 April 2007.

[10] It was submitted on behalf of the appellants that because they were
indicted, and the indictments have not been withdrawn, ‘proceedings’ as
contemplated by s 2(1) continued against them at the time the application was
considered by Levinsohn DJP, with the result that he was not authorised to
exercise the authority that is conferred by s 2(2).  I do not think that is correct.
The word ‘proceedings’ might have various meanings depending upon its
context.  It is clear that it is used in s 2(1) to mean the trial of a person on a
criminal charge,3 which commences when the person who stands accused is
called upon to plead to the charge.  That construction seems to me to accord with
the ordinary meaning of the term in the context in which it is used, and is
fortified by the provisions of s 3(1), s 3(3)(a) and (b), s 5(4) and s 6, all of which
contemplate evidence being placed before a court after issue has been joined.
The clear distinction between the two sections is that s 2(1) allows for evidence
to be taken in a foreign state in the course of a trial, while s 2(2) allows for
assistance to be sought in the course of a criminal investigation that precedes a
prosecution.  Notwithstanding that the appellants have been indicted a trial on
the charges has yet to commence (it was struck from the roll before the
appellants were called upon to plead) and it was competent for Levinsohn DJP to
exercise the authority that is conferred by s 2(2).

[11] The further submissions that were pressed before us by the appellants are
interrelated.  They all arise from the purpose for which the documents are

3 ‘Proceedings’ are defined in s 1 of the Act to mean ‘criminal proceedings and any other proceedings before a
court or other tribunal, instituted for the purpose of determining whether any act or omission or conduct involves
or amounts to an offence by any person.’

sought.  I have already pointed out that the NDPP is well aware of what the
documents contain and is in possession of copies. (Copies were given to Mr
Downer in Mauritius immediately after they were seized.)  The appellants have
already intimated to the NDPP that if they are ever brought to trial they will
object to the introduction into evidence of copies of the documents. The sole
purpose for which the NDPP now requires the originals of the documents is to
overcome such an objection by proffering the original documents as evidence in
the possible trial.

[12] It was submitted on behalf of the appellants that s 2(2) of the Act is not
available to obtain assistance for the purpose of securing evidence for a
prosecution.  It was submitted that s 2(2) permits assistance to be sought only
where it is ‘necessary’ to do so in order to obtain ‘information’ for purposes of
an ‘investigation’ into possible criminal conduct.  Such an investigation, so it
was submitted, is confined to making enquiries to determine whether an offence
has been committed, from which it follows that the ‘information’ that might be
sought is confined to knowledge that is as yet unknown to the investigator.  Once
it has been established that an offence has been committed, so the submission
went, the authority that is conferred by s 2(2) to obtain assistance comes to an
end.  Any further assistance that might be required to secure evidence for
production in a prosecution that might follow may only be sought under the
provisions of s 2(1).  What was sought in the present case, so it was submitted,
was not ‘information’ in the sense that I have described, and the purpose for
which the documents were sought cannot be said to have been ‘necessary’ for the
purpose of an ‘investigation’ of that kind.

[13] I think that is an unduly narrow construction of the section.  I have already
said that the provisions of s 2(1) are designed to enable a court before which an
accused person is being prosecuted, or the presiding officer at such a trial, to
have evidence placed before it that is obtainable only in a foreign state. The
construction that the appellants place on s 2(2) would mean that once a criminal
investigation has established that an offence has been committed, evidence in a
foreign state to prove the commission of the offence may only be secured by the
prosecution after a trial has commenced.  In my view that would be an absurd
result that could not have been intended by the legislature.

[14] A criminal investigation, in ordinary language, is conducted not only to
inform the investigator whether an offence was committed, but also to gather
evidence that will prove its commission in due course.  I see no reason to give
the word the restricted meaning that is contended for by the appellants.  I think it
follows that the word ‘information’ is similarly not confined to knowledge of
whether an offence was committed, and least of all to knowledge that is as yet
unknown, but extends to known facts recorded in documentary form that might
provide evidence of the commission of the offence.  That construction is
supported by the provisions of s 5(2), which contemplates a request for
assistance yielding evidence that might be admissible in subsequent criminal
proceedings.4  In my view what is required to be shown under s 2(2) is only that
a criminal investigation (which includes the gathering of evidence for a
prosecution) is underway and that it is necessary to elicit the assistance of a
foreign state to obtain information (which includes known facts in documentary
form) for purposes of that criminal investigation.  In my view the section plainly
permitted assistance to be sought to obtain possession of the documents and

4  ‘Evidence’ is defined in s 1 to include ‘all books, documents and objects produced by a witness’.

authenticating statements that are now in issue and Levinsohn DJP cannot be
faulted for having issued the letter of request.

[15] But the matter does not end there. I pointed out earlier in this judgment
that the issuing of the letter of request was not definitive or dispositive of any
rights of the appellants.  That naturally raised the question whether the decision
of Levinsohn DJP was even appealable,5 but I think the matter goes even further.
It is true, as counsel for the appellants reminded us, that the rule of law and the
principle of legality requires state conduct (which includes the conduct of a
judge) to be in accordance with law, but it does not follow that it might be
challenged when rights are not affected by the conduct.  The courts do not
generally concern themselves with academic or abstract questions of law.

[16] Numerous cases have considered in what circumstances a person might be
entitled to initiate, or intervene, in legal proceedings that are aimed at vindicating
rights, some of which were referred to in support of the submission that the
appellants had standing to challenge the validity of the decision to issue the letter
of request.  I do not think those cases are of assistance.  All those cases were
concerned, in one form or another, with proceedings to vindicate rights. The
question in each case was whether the person concerned had sufficient interest in
the vindication of the rights that were in issue to entitle him or her to initiate or
intervene in the proceedings.  Thus there is a line of cases in which decisions
impacting upon the rights of the public at large were sought to be impugned,

5  See the general rule in Zweni v Minister of Law and Order 1993 (1) SA 523 (A) 532J-533A, which has been
applied by this court on numerous occasions (for example, Wallach v Lew Geffen Estates CC 1993 (3) SA 258
(A) 263F-G; Trope v South African Reserve Bank 1993 (3) SA 264 (A) 267D-G) with limited exceptions (Moch v
Nedbank Travel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1 (A) 10E-H; Phillips v National
Director of Public Prosecutions 2003 (6) SA 447 (SCA) paras 19 and 23).  Counsel for the appellants relied
particularly on Beinash v Wixley 1997 (3) SA 721 (SCA) 729J-730B but that applies to when and not whether a
decision may be brought on appeal.

raising the question whether an individual had a peculiar interest that gave him
or her standing to vindicate those rights.  One of the earliest cases of that kind
was Dalrymple v Colonial Treasurer,6 which has been endorsed in numerous
subsequent cases,7 in which it was said that the ‘general rule of our law is that no
[person] can sue in respect of a wrongful act, unless it constitutes the breach of a
duty to him by the wrongdoer, or unless it causes him some damage in law’.8
Although a broader approach has since been taken in constitutional matters, once
more that is in the context of the adjudication of rights.9  There have also been
cases in which a person has sought to intervene in proceedings in which the
rights of others are to be determined.  There it has been held that a party may
intervene in litigation that is not determinative of his or her own rights only if he
or she has a ‘direct and substantial interest’ in the litigation (Amalgamated
Engineering Union v Minister of Labour10) which has been explained as ‘the
right that is the subject-matter of the litigation.’11  The present case is quite
different.  A court that is asked to issue a letter of request is not called upon to
pronounce upon or adjudicate any rights at all.  It is asked to do no more than
place its imprimatur upon a request for inter-state assistance.

[17] It has nonetheless been held, in Kolbatschenko v King NO,12 that the
validity of a letter of request might indeed be challenged.  In that case the foreign
state was requested to take all steps necessary to obtain certain documents and
information, if necessary by warrants for search and seizure.  It was held that the

6 1910 TS 372.
7 For example, Roodepoort-Maraisburg Town Council v Easter Properties (Pty) Ltd 1933 AD 87 at 101-2;
Cabinet of the Transitional Government for the Territory of South West Africa v Eins 1988 (3) SA 369 (A) 388B-
I; Jacobs v Waks 1992 (1) SA 521 (A) 533 J-534E.
8 Per Innes CJ at 379.
9 See Ferreira v Levin NO; Vryenhoek v Powell NO 1996 (1) SA 984 (CC) para 165; Minister of Home Affairs v
Eisenberg & Associates 2003 (5) SA 281 (CC) para 28.
10 1949 (3) SA 637 (A).
11 Henri Viljoen (Pty) Ltd v Awerbach Brothers 1953 (2) SA 151 (O) 169H.  See, too, United Watch & Diamond
Co. (Pty) Ltd v Disa Hotels Ltd 1972 (4) SA 410 (C) and cases there cited, which are to similar effect.
12 2001 (4) SA 336 (C).

applicant had standing to challenge the validity of the letter of request because he
was ‘closely connected’ to the entities whose property was liable to be seized
under the warrants that were requested.13  But what is more important for present
purposes is that the court went on to say if that was insufficient to give the
applicant standing then ‘the fact that the applicant is at risk of being prosecuted
is…sufficient to elevate his interest to what is required in that regard…’.14

[18] In a decision of the High Court at Pretoria that was delivered shortly
before this appeal was heard Van der Merwe J dismissed an application to set
aside a letter of request (the applicant in that case was Mr Zuma) on the ground
that the applicant had no standing to contest the validity of the letter of request.15
Referring to the finding in Kolbatschenko the learned judge said the following:
‘If the court in the Kolbatschenko judgment…was of the opinion  that the risk of being
prosecuted on its own is enough to clothe a person whose affairs [are] to be investigated with
locus standi, I find myself in disagreement with that finding.’
(The learned judge also distinguished the decision in Reuters Group Plc v
Viljoen NO 2001 (2) SACR 519 (C). In my view that case is also at least
distinguishable from the case before us and for that reason I have not dealt with
it.)

[19] I respectfully associate myself with the views of Van der Merwe J.
Underlying the reasoning in Kolbatschenko appears to be the assumption that a
person who faces the risk of prosecution if a warrant for search and seizure is
executed has standing to challenge the validity of the warrant and hence, by
parity of reasoning, that he or she also has standing to challenge the validity of a

13 At 349B.
14 At 349E-F.
15 Ex parte National Director of Public Prosecutions: In re an Application for the Issuing of a Letter of Request
in terms of Section 2(2) of the International Co-operation in Criminal Matters Act, No 75 of 1996 unreported
decision dated 14 September 2007 under Case No. 3771/07.

request for the issue of such a warrant.  None of the cases that were referred to in
Kolbatschenko support that reasoning.  In all those cases the applicant who
challenged the validity of the warrant was threatened with an invasion of his or
her rights of privacy and property if the warrant was executed.  I do not think
that a person who is at risk of prosecution if a warrant for search and seizure is
executed has standing to challenge the validity of the warrant for that reason
alone. That being so it also cannot afford him or her standing to challenge the
validity of a letter requesting that such a warrant be issued and in my view
Kolbatschenko was incorrectly decided in that respect.

[20] That the documents that are sought in the present case might assist in any
prosecution of the appellants that might occur does not seem to me to entitle
them to challenge the validity of the letter of request and I see no other grounds
that might entitle them to do so.  That the appellants were given notice to attend
the proceedings and were afforded the opportunity of being heard by the learned
judge does not seem to me to take the matter further. It follows that the
appellants also have no standing to prosecute an appeal against the decision of
the learned judge and on that ground alone the appeal must fail.  I do not think
the matter warranted the employment of three counsel.

[21] The appeal is dismissed with costs that include the costs of two counsel.

_____________________
R.W. NUGENT
JUDGE OF APPEAL
FARLAM JA
)
CLOETE JA
)    CONCUR
PONNAN JA
)
MLAMBO JA
)
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
8 November 2007
Status:
Immediate

J G ZUMA & 2 OTHERS v NDPP

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

* * *
The Supreme Court of Appeal (SCA) today (8 November 2007) dismissed an appeal by Mr Jacob
Gedleyihlekisa Zuma, Thint Holdings (Southern Africa) (Pty) Ltd and Thint (Pty) Ltd (the
appellants) against a decision of the Deputy Judge President of the High Court at Durban to issue a
Letter of Request to the authorities in Mauritius under the International Co-operation in Criminal
Matters Act No. 75 of 1996 to furnish certain documents to the prosecuting authority in South
Africa.

The documents concerned were seized in Mauritius under a warrant issued in that country.  The
prosecuting authority in South Africa alleged that it required the documents for use as evidence
against the appellants should they be tried in the future.  The appellants contended, on various
grounds, that the Deputy Judge President was not authorised by the Act to issue the Letter of
Request.

The SCA held that the Letter of Request had been properly issued and, in addition, that the
appellants had no standing in law to contest the actions of the Deputy Judge President.  The appeal
was accordingly dismissed.