Jacob Gedleyihlekisa Zuma v National Director of Public Prosecutions

On 2 April 2007, the Deputy Judge President of the Durban High Court (Levinsohn DJP) issued a letter of request under section 2(2) of the International Co-operation in Criminal Matters Act 75 of 1996, requesting the Attorney-General of Mauritius to transmit fourteen documents in the possession of the Independent Commission Against Corruption (ICAC) in Mauritius to South Africa. The documents were sought by the Directorate of Special Operations for use as evidence in a possible prosecution of the appellants for corruption. The documents had been seized in Mauritius in 2001 from Thales International Africa Ltd and its officer Mr Alain Thetard. Copies had been given to the NDPP, but originals were retained in Mauritius under an undertaking not to communicate them without court authorization. The first appellant (Mr Zuma) was indicted on corruption charges in June 2005, and the second and third appellants (Thint Holdings and Thint) in November 2005. The trial scheduled for 31 July 2006 was struck from the roll on 20 September 2006 before the appellants pleaded. The NDPP then applied under section 2(2) for the letter of request, which was issued by Levinsohn DJP. The appellants appealed against this decision with leave of the judge.

• Whether section 2(2) of the International Co-operation in Criminal Matters Act 75 of 1996 was applicable when criminal proceedings had been instituted but struck from the roll before plea
• Whether section 2(2) permits requests for assistance to obtain evidence for prosecution purposes or only for investigative purposes to determine whether an offence was committed
• Whether the meaning of 'investigation', 'information' and 'necessary' in section 2(2) is restricted to pre-prosecution inquiries
• Whether the appellants had standing (locus standi) to challenge the validity of the letter of request
• Whether a person at risk of prosecution has standing to challenge a letter of request for documents that might be used as evidence against them

The appeal was dismissed with costs, including costs of two counsel.

The binding legal principles established are: (1) Section 2(2) of the International Co-operation in Criminal Matters Act 75 of 1996 is available where criminal proceedings have been instituted but struck from the roll before plea, as 'proceedings' in section 2(1) refers to a trial that commences only when an accused is called to plead. (2) The term 'investigation' in section 2(2) is not confined to determining whether an offence was committed, but extends to gathering evidence to prove commission of an offence for prosecution purposes. (3) The term 'information' in section 2(2) is not limited to unknown knowledge but includes known facts in documentary form that might provide evidence of the commission of an offence. (4) A person who is under investigation or at risk of prosecution does not have standing (locus standi) to challenge the validity of a letter of request issued under section 2(2) merely because the information sought might be used as evidence against them in a prosecution. (5) Standing to challenge state conduct requires that legal rights be affected by the conduct; the mere fact that a letter of request has been issued does not compromise or affect the rights of a person under investigation, including their right to a fair trial or their right to object to the admission of evidence at trial.

The court made several notable obiter observations: (1) The court questioned whether the decision of Levinsohn DJP to issue the letter of request was even appealable, given the general rule in Zweni v Minister of Law and Order that decisions which are not definitive or dispositive of rights are not appealable, though it did not finally decide this point. (2) The court noted that courts do not generally concern themselves with academic or abstract questions of law where rights are not affected. (3) The court observed that even if the requested documents are obtained, the appellants retain the right to object to their admission at trial on any proper ground. (4) The court commented that the matter did not warrant the employment of three counsel. (5) The court distinguished Reuters Group Plc v Viljoen NO but did not analyze it in detail, finding it distinguishable from the present case. (6) The court noted that affording the appellants notice and an opportunity to be heard did not confer standing upon them.

This case is significant in South African criminal procedure law for establishing important principles regarding international co-operation in criminal matters and standing to challenge procedural steps in criminal investigations. It clarifies the scope and purpose of section 2(2) of the International Co-operation in Criminal Matters Act, confirming that the provision extends beyond mere investigation to determine if an offence occurred, and permits obtaining evidence for prosecution purposes. Most significantly, it establishes that persons under investigation or facing potential prosecution do not have standing to challenge letters of request issued under the Act merely because documents sought might be used against them in prosecution. The decision reinforces that such requests do not determine or affect legal rights, and therefore do not give rise to standing to challenge them. This has important implications for the efficiency of international co-operation in criminal matters by preventing pre-trial challenges to procedural steps that do not affect substantive rights.