Goldberg and Another v Boshoff NO and Another (09/53076) [2010] ZAGPJHC 164 (30 July 2010)

Goldberg and Another v Boshoff NO and Another (09/53076) [2010] ZAGPJHC 164 (30 July 2010)

The court held that the regional magistrate did not have authority under section 2(1) of the International Co-operation in Criminal Matters Act or section 158 of the Criminal Procedure Act to issue a letter of request for witnesses in the United Kingdom to testify via teleconference at a South African criminal trial. The relevant statutory provisions do not permit such a procedure, and the law of the requested state governs the examination of witnesses abroad. The review application was premature, as no final letter of request had been issued, and the order sought to be reviewed was interlocutory and open-ended. The application was dismissed, and costs were awarded against the applicants.

Citation
[2010] ZAGPJHC 164
Parties
Applicant: Lawrence Goldberg; Applicant: Margarita Reed; Respondent: Magistrate R Boshoff N.O.; Respondent: National Prosecuting Authority (South Gauteng)
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
30 July 2010
Case Number
09/53076
Procedural Posture
Review Application / Application for Review of Interlocutory Order in Pending Criminal Trial
Outcome
Application dismissed with costs, including wasted costs of postponements, jointly and severally.
Judges
P.A. Meyer, P. Coppin
Legal Topics
International Cooperation in Criminal Matters, Letter of Request, Electronic Evidence, Interlocutory Orders, Review Proceedings
Criminal Law Civil Procedure International Cooperation in Criminal Matters Letter of Request Electronic Evidence Interlocutory Orders Review Proceedings

Case Brief

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Parties

Lawrence Goldberg

Applicant

Margarita Reed

Applicant

Magistrate R Boshoff N.O.

Respondent

National Prosecuting Authority (South Gauteng)

Respondent

Procedural Posture

Review Application / Application for Review of Interlocutory Order in Pending Criminal Trial

Legal Issues

  1. 1 Whether the regional magistrate had authority under the International Co-operation in Criminal Matters Act or the Criminal Procedure Act to issue a letter of request for witnesses in the United Kingdom to testify via teleconference in a South African criminal trial.
  2. 2 Whether the requirements for issuing such a letter of request were met.
  3. 3 Whether the review application was premature and appropriate for relief.

Ratio Decidendi

The court held that the regional magistrate did not have authority under section 2(1) of the International Co-operation in Criminal Matters Act or section 158 of the Criminal Procedure Act to issue a letter of request for witnesses in the United Kingdom to testify via teleconference at a South African criminal trial. The relevant statutory provisions do not permit such a procedure, and the law of the requested state governs the examination of witnesses abroad. The review application was premature, as no final letter of request had been issued, and the order sought to be reviewed was interlocutory and open-ended. The application was dismissed, and costs were awarded against the applicants.

Court Disposition

Application dismissed with costs, including wasted costs of postponements, jointly and severally.

Orders

  • The application is dismissed.
  • The applicants are ordered to pay the second respondent's costs of the application, including the wasted costs occasioned by the postponements on 12 January 2010, 3 February 2010, and 17 March 2010, jointly and severally, the one paying the other to be absolved.