National Director of Public Prosecutions v Zuma and Others (13569/2006) [2007] ZAKZHC 4 (2 April 2007)

CASE NO 13569/2006

IN THE HIGH COURT OF SOUTH AFRICA

DURBAN AND COAST LOCAL DIVISION

In the matter between :

THE NATIONAL DIRECTOR OF PUBLIC

PROSECUTIONS Applicant

and

JACOB GEDLEYIHLEKISA ZUMA First Respondent

THINT HOLDINGS (SOUTHERN AFRICA)

(PTY) LTD Second Respondent

THINT (PTY) LTD Third Respondent

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, 1996 (Act 75 of 1996).

Delivered :

2 April 2007

J U D G M E N T

LEVINSOHN DJP :

This is an application brought in terms of section 2(2) of the International Co-operation in Criminal Matters Act, No 75 of 1996 (“the Act”). The subsection reads as follows : -

“(2) A judge in chambers or a magistrate may on application made to him or her issue a letter of request in which assistance from a foreign State is sought to obtain such information as is stated in the letter of request for use in an investigation related to an alleged offence if he or she is satisfied -

(a) that there are reasonable grounds for believing that an offence has been committed in the Republic or that it is necessary to determine whether an offence has been committed;

(b) that an investigation in respect thereof is being conducted; and

(c) that for purposes of the investigation it is necessary in the interests of justice that information be obtained from a person or authority in a foreign State.”

Since the respondents have a clear interest in these proceedings they were given notice of the application for the request. They have opposed the issuing of a request and have delivered affidavits in support of their opposition. The papers before me are lengthy and detailed.

Essentially the applicant wishes me to direct a request to the relevant authority/authorities in the Republic of Mauritius to obtain 14 original documents which at the present time are in that country. These documents are said to be very relevant and indeed important in an investigation being conducted against the respondents with a view to their prosecution on charges of alleged corruption. The respondents contend on several grounds that I should decline to issue the request. Various contentions will presently be set out and traversed hereunder. Before doing so it is necessary for me to traverse certain important historical background pertaining to the documentation sought from Mauritius.

A convenient starting point is the year 2000. On 6th November 2000 Ms Gerda Ferreira, a Deputy Director of Public Prosecutions in the office of the Directorate of Special Operations, Gauteng Province, was designated in terms of section 28(2)(a) read with section 28(14) of the National Prosecuting Authority Act, No 32 of 1998, to determine whether there are reasonable grounds to conduct an investigation pertaining to corruption and/or fraud in relation to what has now been called the “arms deal”. Thereafter in August 2001 her mandate was elevated to the level of “conducting an investigation” into suspected commission of fraud and corruption in relation to the said arms deal.

On 8th September 2001 Ferreira caused a request to be transmitted to the Ministry of Justice of the Republic of Mauritius for what is termed

“Application for a commission rogatoire and search and seizure in a criminal matter”.

Ferreira requested that such search and seizure take place at the premises of Thales International Africa Ltd situate at Port Louis, Mauritius. The search and seizure was also directed at two individuals, namely Alain Thetard and Yann Leo Renaud de Jomaron. Both these persons resided in Mauritius as well. The object of the search was to discover documents which were relevant to payments or bribes in relation to the arms deal. Apart from that Ferreira requested that sworn statements from relevant witnesses were to be taken to explain and authenticate the documentation which was found pursuant to the search.

It is unnecessary for me to summarise the remaining contents of Ferreira’s request which is detailed and sets forth why in the view of the National Director of Public Prosecutions of South Africa there is reasonable suspicion that crimes of corruption were perpetrated.

Ferreira indicated that similar search and seizure operations were to take place simultaneously in both France and Turkey. It turned out that the Mauritian authorities had some difficulty with instituting a commission de rogatoire since the persons from whom documents were to be seized were not witnesses in the true sense but suspects in the investigation. Advocate Downer travelled to Mauritius and negotiated with the Mauritian authorities in regard to the request. It was decided that only a search and seizure order would be sought and the application for a commission de rogatoire was apparently abandoned. Thereafter on 5th October 2001 and urgent application was moved before the High Court of Mauritius. The Court granted an order authorising the search and seizure of documents from the persons mentioned above. The order appears at page 438 of the papers.

What followed thereafter was an application brought by Thales International Ltd, Alain Thetard and Mutual Trust Management Mauritius Ltd against the applicant in the urgent search and seizure application, namely the Director of Economic Crime Office. The relief claimed by these applicants was the following :

“21. In the circumstances, it is urgent and necessary that your Lordship be pleased to make an order –

A. requiring the Respondent to state whether copies have been made of all diskettes and documents seized in furtherance of the order

and,

B. enjoining and prohibiting the Respondent from

(a) collecting and keeping any information, document or material seized from myself, the first Applicant Mutual Trust or any other party or person on the strength and by virtue of the said order of the Judge made on the 5th October 2001, which are not strictly within the scope and ambit of that order,

(b) communicating to the South African Authorities or to any other person any document not related strictly to the order made by the Judge and the request on which the order is based,

(c) communicating any document to the South African Authorities or any other person other than those requested by them and this again strictly in terms of their request and the Judge’s order,

(d) making any copy of the documents, materials or information seized, and

(e) keeping any copies of the documents, materials or information seized.”

The deponent to the founding affidavit was Alain Thetard who described himself as an officer of the first applicant. In his founding affidavit he said the following at paragraph 9 : -

“It was agreed in my presence between Chief Inspector Jhuggoo and my Counsel that no copies will be made from the diskettes except in the presence of my Counsel and myself. I must point out at this stage that the computer diskettes which were, inter alia, seized are composite diskettes containing materials and information of the affairs of Thales Africa including but not limited to information pertinent to the request and the order of the Learned Judge. They also contain information not pertinent to the request and the Judge’s order and which are the property of Thales Africa.”

He then went on to say that some of the information in the documents seized is not within the ambit of the order of the judge. He averred that the offices of the Economic Crime Office have indiscriminately seized documents and material belonging to both to Thales Africa or himself. It was clear from Thetard’s affidavit that sensitive, confidential, secret information would be revealed. It was in those circumstances that he sought the relief which I have set out above. That relief was clearly in the form of a mandamus.

Thales’s application was set down for 26th October 2001. On that day it was adjourned to 8th November 2001. Thereafter it was adjourned to 16th November for argument on a preliminary objection. Several further adjournments were granted culminating in a hearing before the High Court on 27th March 2003. On that day an agreement between the parties (the Director of Economic Crime Office was succeeded by the “Commissioner of ICAC”).

“The Applicants take note of :

(a) The assurance given by the Respondent that only 14 documents referred to by Mrs Manna on the 25th of September 2002 including those listed in the affidavit of the Respondent of the 14th of October 2002 have been seized and retained by the Respondent;

(b) The further assurance given by the Respondent earlier in the proceedings that no material or documents (whether in original or in copies) seized as a result of the search made at the premises of Thales and that of its officers and agents in October 2001 or consequent upon the order obtained from the Honourable Judge in Chambers on the 5th of October 2001 will be communicated or sent to the South African Authorities;

(c) The assurance given by the Respondent that there are at present no record of any copies of the returned diskettes and/or other documents seized in furtherance of the said order, save those made and remitted to the Applicants in March 2003; and

(d) The undertaking of the Respondent from sitting to sitting not to communicate the said documents to the South African Authorities.

The Applicants and the Respondent have agreed that the Respondent shall undertake not to communicate any of the material or documents seized, including the 14 aforesaid documents, to any person or authority whether abroad or in Mauritius until and unless a Court Order in Mauritius authorising such communication is first obtained, with and after notice to the Applicants prior to any hearing of the application to communicate any or all of those documents to a person or authority, whether abroad or in Mauritius.”

Prior to this order being obtained the South African authorities were in communication with their counterpart in Mauritius.

On 25th September 2002 the newly-constituted Independent Commission Against Corruption (ICAC) of Mauritius addressed a letter to the Director of Public Prosecutions, Mr W. J. Downer, in Cape Town. The letter recorded the following : -

“Since June 2002 the Independent Commission Against Corruption (ICAC) has taken over the Economic Crime Office. We have in our custody 14 documents as per annex which were secured following a judge’s order dated 09 October 2001.

An injunction has been entered before the Supreme Court by Thales International Africa Ltd, Alain Thetard, Valmet Mauritius Limited now Mutual Trust Ltd to return those documents to them.

Please note that the injunction case is fixed for the 15 October 2002. We shall be grateful to know as to whether those 14 documents would be required by your Office in case of any prosecution. If in affirmative, can you give an indication as to when those documents would be required. If in negative, will you please confirm as to whether those documents should be returned to the applicants.

An urgent reply would be appreciated in order to allow this Office to take a stand in Court on the 15 October 2002.”

On 17th October 2002 Downer replied to that letter. He indicated that the documents in their possession are important and should be retained at all costs.

` On 17th January 2003 the ICAC addressed a letter to Mr Downer and I quote the second and third paragraphs thereof : -

“According to your letter of request for assistance dated 1st October, 2001 regarding investigation in an alleged case of corruption arising out of a procurement exercise on behalf of the Government of the Republic of South Africa in relation to supply of armaments for the Department of Defence, no request is made as to whom those documents or materials obtained in the course of the investigation are to be produced.

In the absence of the above request, I consider that the documents and materials seized could not be sent to you in case of an eventual prosecution. It would be proper if you send us a fresh request for assistance mentioning as to whom those documents have to be produced in South Africa. Please find annexed a copy of the relevant part of the Economic Crime Office and Anti-Money Laundering Act.”

(My own emphasis).

A further important development was the passing of the Mutual Assistance in Criminal and Related Matters Act of 2003 in the Republic of Mauritius. This Act, inter alia, regulated procedures for evidence gathering and the obtaining of search warrants. It also constituted what is described as “Central Authority” which means the Attorney-General or for the purposes of a request from a foreign state is the appropriate competent authority.

It is common cause that after the original search and seizure in 2001 Mr Downer who was present at the time made copies of the documents concerned and took them back with him to South Africa. These documents were subsequently used in the prosecution against Schabir Shaik which commenced in 2004 and ended in 2005 with Mr Shaik being convicted, inter alia, on counts of corruption and fraud. Documents produced at the trial were ruled to be admissible and the Court found no fault in the conduct of Mr Downer making copies thereof and bringing them to South Africa.

Quite evidently the prosecution in the Shaik trial were content to rely on secondary evidence of the documents in question and took no steps to procure the originals by means of an application in terms of section 2(1) of the said Act or making a further request therefor to the Mauritian authorities.

In 2005 following the conviction of Mr Shaik the applicant decided to prosecute the three respondents herein. They were duly arraigned before the High Court, an indictment was served on them and their trial was set down for 31st July 2006.

On 10th March 2006 the State applied to P. C. Combrinck J (as he then was) for the issue of a letter of request for the production of the documents in question coupled with the leading of evidence before a commissioner in Mauritius in regard to those documents. The learned judge declined to issue the request. In a written judgment which forms part of the papers before me the learned judge held that it is only the Court “presiding at proceedings” that can issue the request. That is to say the trial Court which is seized with the matter. The learned judge said (at page 10 of the typed judgment) the reason was probably that unlike in civil cases where the lis between the parties is established at close of pleadings, in criminal matters only after pleading to the charge is the lis established between the accused and the State. He went on to say “It is, in my view, doubtful whether evidence on commission can be led before the accused has pleaded”. Combrinck J then adjourned the matter to be considered by the trial Court. That did not come to pass for on 31st July 2006 when the matter was called before the judge allocated to hear the trial the State applied for a postponement of the trial.

That was opposed and the judge presiding refused the application and struck the matter off the roll.

It is in these circumstances that the present applicant argues that it is entitled to bring an application for the request in terms of section 2(2) of the Act. Section 2(1) and the ruling by Combrinck J do not in the circumstances apply since there are no criminal proceedings pending. In broad outline the case made out in the applicant’s founding papers is as follows. Notwithstanding that there are no criminal proceedings pending against the erstwhile accused the investigation which has been launched against them as extended remains current. The applicant’s deponent makes the point that there is a reasonable prospect that charges could in the future be instituted against one or more of the erstwhile accused and/or others. This is more particularly so since the Supreme Court of Appeal has comprehensively confirmed the findings of the trial Court in the Schabir Shaik trial matter. At this stage the National Director has not made a decision whether to re-institute the prosecution and if so on what charges. The indictment which will be framed will substantially mirror the corruption charges which were the subject matter of the Shaik trial but there are likely to be differences.

The applicant’s deponent in compliance with the provisions of section 2(2) of the Act makes the point that there are reasonable grounds for believing that the offences of corruption and money laundering have been committed. They say at this stage that it has not been suggested by any of the respondents either in their opposing affidavits or in oral argument that this requirement in the statute has not been satisfied. I may say at this stage that I agree with this submission. I accept that the applicant has established this jurisdictional requirement.

In regard to the controversial aspects of this application the applicant’s deponent avers that an investigation is being carried out and it is necessary for purposes of the investigation and in the interests of justice that information be obtained from a person or authority in the Republic of Mauritius. The deponent testifies that the documents referred to above including the year 2000 diary of Thetard records the fact that a meeting at which an agreement to bribe the first respondent was allegedly discussed. The information which can be gleaned from the documents concerned will be required in any prosecution that may result. The deponent goes on to say (para 23.3) :-

“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

As described above, the originals of various vital documents are retained by the Mauritian authorities, including the 2000 diary of Thetard, which records the fact of the meeting at which the agreement to bribe Zuma was allegedly discussed. The information contained in these documents will be required

for any prosecution that may arise from this investigation. In order to prove this information, the original document will be required. Inasmuch as the ultimate goal of any investigation is the prosecution of admissible evidence is a legitimate purpose of an investigation, I verily believe that, for purposes of the investigation, it is necessary in the interests of justice that the information contained in the documents in question be obtained in its original form from the Mauritian authorities. It is also necessary to obtain affidavits from those persons in whose possession the documents were kept in order to complete the chain of custody.”

In the applicant’s replying affidavit the deponent once again dealt with the issue. He makes the point that the State has not obtained the original documents previously. This differs from copies which were obtained and utilised in the Shaik trial. Nor has the State previously obtained evidence of witnesses who are required to identify these original documents and to indicate their source and how they were preserved. In this context the foreshadowed evidence is new evidence since the State is not aware of what these witnesses will say.

The deponent also makes a point that a criminal investigation includes the marshalling of evidence so as to present it in the form that best facilitates its eventual admissibility in a prosecution that might follow. He goes on to make the point : -

“8.14 Accordingly, an investigation is not deprived of its investigative character simply because the investigator seeks to obtain evidence for court purposes. Indeed, this is the major part o most investigations.”

It is also true to say that original documents are the best evidence while copies are regarded as secondary evidence and the Court considering the admissibility of copies will have to be satisfied that the originals cannot be obtained.

The respondents oppose the application on several grounds. I shall deal with these under the various headings which appear hereunder.

1. THE CRIMINAL PROCEEDINGS INSTITUTED AGAINST THE RESPONDENTS ARE STILL PENDING

Notwithstanding that the case was struck off the roll the indictment which was lodged still stands. Therefore the applicant is bound to proceed in terms of section 2(1) and not subsection (2). In the circumstances the judgment of Combrinck J remains applicable.

I reject this submission. In my view when a case is struck off the roll prior to plea the criminal proceedings pending are terminated. In the instant case when the postponement was refused the State declined to withdraw the charges and the learned judge then proceeded to strike the matter off the roll. In my view this had the same effect as if the State had withdrawn the charges. It is not unlike a situation where during the course of trial a postponement is refused and the State refuses to close its case. In those circumstances the Court constructively closes the State’s case.

(See Scholtz and Others v S [1996] 3 All SA

210 at 214 J).

In Scholtz’s case, supra, Farlam J (as he then was) said the following : -

“Where the accused has not pleaded, however, the accused will not be entitled to a verdict and a failure (or refusal) by the prosecutor to proceed with the case if his or her application for a postponement is refused will lead to the case’s being struck from the roll and the discharge of the accused.”

(At 215 b).

I hold therefore that the State is correct in asserting that no criminal proceedings are pending at this stage.

2. WHETHER THE NECESSARY JURISDICTIONAL FACTS ARE PRESENT IN TERMS OF SECTION 2(2)

The respondents submit that the applicant is not entitled to invoke the subsection since the request is not in fact aimed at obtaining “information ……. for use in an investigation”. Very simply put the contention is that no new information will be obtained. The State has been apprised of the contents of the documents concerned since it took copies thereof as early as 2001. In essence therefore this Court cannot assist the State to obtain what is in reality only evidence to be presented at some future criminal proceedings. This is not the obtaining of information envisaged in the subsection. The first respondent particularly submits that the applicant’s proposed invocation of the subsection is artificial and any request directed pursuant thereto would be unlawful.

Furthermore the first respondent submits that the course proposed by the applicant would result in the first respondent’s constitutional rights being infringed. At this stage while the first respondent in, as it were, a twilight zone awaiting a decision as to whether he will be prosecuted again the first respondent will not enjoy the opportunity of cross-examining witnesses who make statements pursuant to the section 2(2) request. If a section 2(1) commission was convened then he naturally would enjoy that right. Furthermore any evidence obtained under section 2(2) would be admissible on production in terms of section 5(2). In short the first respondent maintains that the whole process would be grossly unfair to him.

Now it seems to me that the respondents give an unduly narrow interpretation to the word “information” in the subsection. In my view it does not simply mean knowledge gleaned or intelligence received. As has been pointed out in the applicant’s replying affidavit the dictionary definitions also define information as being ”items of knowledge”. Having regard to the provisions of section 5(5) of the Act it appears that the legislature was alive to the differences between the section 2(1) procedure and the phase before proceedings are instituted. It did indeed envisage a situation that in the latter phase evidence could be obtained. “Evidence” is defined as including all books, documents and objects produced by a witness. Therefore what is understood by “information” was intended by the legislature to necessarily include the obtaining of evidence and that encompasses documents as indicated above. I accept the State’s evidence that the investigation against the respondent continues and that the obtaining of the documents in question would then be described as information for use in the investigation.

As for the first respondent’s submission that the obtaining of the documents in this way would give the State an unfair advantage it seems to me that in terms of section 5(2) the Court before whom the evidence is tendered would have a wide discretion to disallow production thereof. One of the issues would be prejudice to any party which the admission of such evidence might entail. It seems to me that it is wrong to suggest that one’s right to cross-examine witnesses has been removed by the invocation of this subsection.

In the result I hold that the State has established the necessary jurisdictional facts in terms of section 2(2).

3. THE INHERENT INVALIDITY OF THE PROCESS TO OBTAIN THE DOCUMENTS IN MAURITIUS IN THE YEAR 2001

Much of the evidence that has been adduced in this application is concerned with the legality or otherwise of the applicant’s original request to the Republic of Mauritius. I may say that the first respondent has not joined in this challenge. In a nutshell the second and third respondents submit that at inception the request for international assistance addressed to the Mauritian authorities was legally flawed. Therefore the subsequent search and seizure was tainted and moreover the taking of copies back to South Africa was tarred with the same brush. Detailed argument has been put before me in regard to whether a legitimate international practice was established in terms of section 31 of the Act. Counsel argues that in international law a practice can only arise if same has been formalised by treaty or agreement. Both in the heads of argument and the oral arguments addressed to me there has been much debate on this topic. However in the view I take it is unnecessary for me to decide this.

In my judgment this is a matter which should be ventilated in Mauritius before its High Court. There would be much to be said for the view that the attack on the search and seizure of 2001 comes very belatedly. Certainly on the papers that are before me, and as indicated above, Thales did not seek to attack the legality of the original request and the subsequent order that was made. I suppose it is also open to the present second and third respondents to make submissions in regard to the admissibility of these documents if the matter were eventually to come to trial. The issue of the legality of the process would be relevant to a decision as to admissibility. As matters stand it is certainly not a foregone conclusion that the second and third respondents would succeed in their endeavours. At this stage there appears to be sufficient prima facie evidence that the 2001 request was properly made and the process a lawful one. In these circumstances the second and third respondents’ attack as aforesaid should not present an obstacle to the making of the request sought.

4. THE CLEAN HANDS ARGUMENT

Essentially the respondents attack the applicant’s representative for making copies of the documents and removing them to South Africa. There is a clear innuendo of improper conduct launched. The applicant has adduced evidence in this regard and has denied the allegations. It is of some significance to mention that the Court in the Shaik trial was satisfied that there had been no impropriety and the copies were admitted in evidence before it. Once again for present purposes I find it unnecessary to deal with this aspect at all for it does not bear on the efficacy of the request that I am asked to make to the foreign country.

5. WHETHER THE INJUNCTION OF THE HIGH COURT OF MAURITIUS PREVENTS ME FROM ISSUING THE REQUEST

During the course of argument I raised with counsel for the first respondent whether the existence of the injunction operates as an insuperable obstacle to issue a request for the documents concerned in terms of section 2(2). On reflection I am satisfied that it does not. I agree with the applicant’s submission that reference must be made to the existence of the injunction in the request and the Mauritian authorities fully apprised thereof. It could then be requested, if so advised, to take steps to remove the embargo on the documents. That would be regarded as necessity incidental to the execution of the request.

It follows from the foregoing that I am disposed to issue the request. After hearing argument I asked the applicant’s representatives to draft both an appropriate order and a request to the Republic of Mauritius. This is now before me. The draft has also been furnished to the respondents. The second and third respondents have submitted comments. The first and second respondents’ main concern hinges around the appending of Mr McCarthy’s affidavit in support of the original 2001 request. They submit that that affidavit should not form part of the present request. The affidavit in question was deposed to in support of the section 2(1) application which served before Combrinck J. The request incorporated therein was obviously a draft request. However the background facts set forth therein are relevant to the present request and will serve to apprise the Mauritian authorities of the background to the matter in compliance with their local statute which is the Mutual Assistance in Criminal and Related Matters, Act 2003. That Act requires a requesting state, inter alia, to “give a description of the nature of the proceedings of the statements setting out a summary of the relevant acts and laws.” I am satisfied that Mr McCarthy’s affidavit should be incorporated as part of the request.

In the result I make an order and issue the request annexed hereto as annexures A1 and A2. I also direct that a copy of this judgment form part of the request.

DATE OF JUDGMENT : APRIL 2007

DATES OF HEARING : 22 and 23 MARCH 2007

COUNSEL FOR THE APPLICANT: MR R. A. K. DOWNER SC with him MR. A. L. J. STEYNBERG and MR G. D. BALOYI

INSTRUCTED BY : NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS, DIRECTORATE OF SPECIAL OPERATIONS, KZN REGIONAL OFFICE

COUNSEL FOR FIRST RESPONDENT : MR K. J. KEMP SC with him

MR M. C. SMITHERS and MR T. KHUZWAYO

INSTRUCTED BY : HULLEY & ASSOCIATES, DURBAN

COUNSEL FOR SECOND AND

THIRD RESPONDENTS : MR N. SINGH SC with him MR M. W. COLLINS

INSTRUCTED BY : SHAMIN RAMPERSAD & ASSOCIATES, DURBAN