Thint Holdings (Southern Africa) (Pty) Ltd and Thint (Pty) Ltd v National Director of Public Prosecutions; Zuma v National Director of Public Prosecutions

The National Director of Public Prosecutions (NDPP) conducted an investigation into alleged corruption in the so-called "arms deal" implicating the applicants (Thint companies and Mr Jacob Zuma). In October 2001, the Mauritian Supreme Court authorized a search and seizure of premises, resulting in copies of documents being obtained by the NDPP. After Mr Zuma was charged and the criminal proceedings were struck from the roll on 20 September 2006 due to the NDPP's unreadiness, the NDPP applied on 12 December 2006 for a letter of request under section 2(2) of the International Co-operation in Criminal Matters Act 75 of 1996 to obtain the original documents from Mauritius. Levinsohn DJP issued the letter of request on 2 April 2007. The applicants challenged this decision, arguing it was unlawful and infringed their constitutional rights.

• Whether the NDPP could use section 2(2) of the International Co-operation in Criminal Matters Act to obtain original documents when copies were already in possession
• Whether section 2(2) was available after the applicants had been charged but the proceedings struck from the roll
• Whether the applicants had standing to challenge the letter of request
• Whether the letter of request infringed Mr Zuma's right to dignity under section 10 of the Constitution
• Whether the letter of request infringed the applicants' right to a fair trial under section 35(3) of the Constitution
• Whether the letter of request infringed Mr Zuma's right of access to courts under section 34 of the Constitution
• The proper interpretation of 'information' versus 'evidence' under section 2(2) and section 2(1) respectively

Applications for leave to appeal granted. Appeals dismissed. The applicants in both matters ordered to pay costs, including costs of two counsel. The respondent's applications for condonation for late filing and to file supplementary answers were granted.

The binding legal principles are: (1) Once criminal proceedings are struck from the roll before plea, those proceedings are terminated and section 2(2) of the International Co-operation in Criminal Matters Act becomes available, not section 2(1). (2) 'Investigation' in section 2(2) encompasses both determining whether an offence has been committed and gathering evidence to prosecute - these are not mutually exclusive processes. (3) 'Information' in section 2(2) is not restricted to unknown knowledge but extends to any knowledge including known facts in documentary form. (4) The NDPP may use section 2(2) to obtain original documents even when copies are already in possession, to prepare for potential admissibility challenges. (5) The right to dignity under section 10 does not extend to a right not to be named as a suspect when there is reasonable suspicion that a crime has been committed. (6) Fair trial rights under section 35(3) are not infringed at the investigative stage when a letter of request is issued - these rights are protected through admissibility challenges at trial under section 5(2) of the Act.

The Court expressly left open the question of standing, noting that while the Supreme Court of Appeal had held the applicants lacked standing to challenge the letter of request, this approach may not be correct given the Constitution's broad approach to standing under section 38. The Court stated it was "not persuaded that the approach of the Supreme Court of Appeal is necessarily correct" and left this question for consideration in another case. The Court also left open the question of whether the NDPP approached the Court with "unclean hands" given the Mauritian Supreme Court's restrictions, noting this relates to admissibility of evidence which is a matter for the trial court's discretion. The Court observed that section 34 (right of access to courts) is not intended to grant standing to persons who have already received a full hearing simply because they allege rights violations - such an interpretation would "essentially nullify the rules of standing in our law".

This is the first Constitutional Court decision interpreting section 2(2) of the International Co-operation in Criminal Matters Act 75 of 1996. The judgment clarifies the distinction between sections 2(1) and 2(2) - section 2(1) applies during criminal proceedings while section 2(2) applies during investigations before or after proceedings have been instituted. It establishes that 'investigation' includes both discovering new facts and gathering evidence for trial, and that 'information' extends to known facts in documentary form. The case clarifies that the right to dignity does not extend to a right not to be named as a suspect when there is reasonable suspicion of crime. It also confirms that fair trial rights are not engaged at the investigative stage but will be protected at trial through admissibility challenges. The judgment is significant in the context of high-profile corruption prosecutions and international cooperation in criminal matters.