Kolbatschenko v King NO and Another

• Jurisdiction: South Africa
• Citation: 2001 (2) SACR 323 (C)

Kolbatschenko v King NO and Another
2001 (2) SACR 323 (C)

2001 (2) SACR p323

Citation	2001 (2) SACR 323 (C)
Court	Cape Provincial Division
Judge	Thring J and Van Heerden J
Heard	November 10, 13, 2000; December 8, 2000; December 13, 2000
Judgment	May 17, 2001
Counsel	J C Heunis SC (with P F Cloete and N Bawa) for the applicant.; No appearance for the first respondent.; N J Treurnicht SC (with A M Breitenbach) for the DPP.

Flynote : Sleutelwoorde

Investigation of crime — Rights of person under investigation — Locus standi of person under investigation to B demand entrée into enquiries or to claim interdict to prevent authorities from proceeding with them or from deciding whether or not to prosecute him — Where prosecuting authorities merely engaged in preliminary and investigative enquiries and in gathering evidence C from persons or bodies not directly connected to applicant, applicant lacking locus standi — However, where established that such persons or bodies closely connected to applicant (eg trusts established by or companies closely connected to him) and prosecuting authorities envisaging search and seizure procedures for eventual use in prosecution of applicant, applicant sufficiently affected in his rights and legal interests to establish required locus standi — Even D if applicant's interests in such persons or bodies not sufficient, fact that applicant at risk of being prosecuted sufficient to establish required locus standi.

Investigation of crime — Rights of person under investigation — International Co-operation in Criminal Matters Act 75 of 1996 — Request issued by Judge in Chambers in terms of s 2(2) of Act E for assistance by foreign State in obtaining evidence to aid criminal investigation — Locus standi of person under investigation to obtain order setting aside Judge's letter of request — Whether requirements for locus standi met depending on facts of case — If prosecuting authorities merely engaged in preliminary and F investigative enquiries and in gathering evidence from persons or bodies not directly connected to applicant, applicant lacking locus standi — However, where established that such persons or bodies closely connected to applicant (eg trusts established by or companies closely connected to him) and prosecuting authorities envisaging search and seizure procedures in terms of letter of request against such entities by foreign authorities for eventual use in G prosecution of applicant, applicant sufficiently affected in his rights and legal interests to establish required locus standi — Even if applicant's interests in such persons or bodies not sufficient, fact that applicant at risk of being prosecuted sufficient to establish required locus standi — Above considerations applying also to non-statutory request by South African prosecuting authorities for assistance by foreign State in obtaining evidence to aid criminal H investigation in South Africa.

Headnote : Kopnota

On 8 December 1999, and at the instance of the second respondent, the National Director of Public Prosecutions (DPP), the first respondent, the then Judge President of the Cape Provincial Division (the Judge in Chambers), granted an order in Chambers in terms I of s 2(2) of the International Co-operation in Criminal Matters Act 75 of 1996 to the effect that a letter of request be issued to the Government of Liechtenstein for its assistance in obtaining certain information. The information referred to was allegedly required for use in the investigation of certain offences, including fraud and several offences in terms of the Prevention of Organised Crime J

2001 (2) SACR p324

Act 121 of 1998, that was to be found in the possession of three entities, two companies and a trust, all registered in Liechtenstein, to which the applicant, A according to the DPP, had nefarious links. The 'assistance' required from the Liechtenstein government included 'the issuing of warrants and/or subpoenas to effect searches of the premises in question and (to) seize the required documents and . . . collect the required information'. When it came to the attention of the applicant that a regional court in Liechtenstein had granted an order for the search and B confiscation of certain documents and records belonging to the said entities, he brought an urgent application for an order, inter alia, rescinding the order of the Judge in Chambers and the letter of request issued pursuant thereto, and declaring the non-statutory application by the South African prosecuting authorities to the authorities in Liechtenstein for 'international mutual assistance in a C criminal matter' to be unlawful. This latter 'non-statutory' application was made before approaches were made to the Judge in Chambers and requested authorities in Liechtenstein to obtain the information referred to in the letter of request issued by the Judge. The Judge in Chambers did not oppose the application while the DPP delivered a notice in terms of Rule 6(5)(d)(iii) raising two preliminary points of law, viz (1) that the applicant lacked D locus standi to obtain the relief sought because the DPP's investigations and the respondents' request to foreign authorities in furtherance of those investigations did not prejudicially affect or threaten any of the applicant's rights or legal interests, and (2) that the respondents' requests for foreign assistance, directed as they were to a foreign government, constituted the conduct of foreign affairs by South Africa and were as such not justiciable in a South E African Court. It was common cause that both the issue of the letter of request by the Judge and the making of the 'non-statutory' request constituted administrative action by or on behalf of the South African Government notwithstanding the fact that neither of the respondents was a member of the executive.

Section 2(2) of the International Co-operation in Criminal Matters Act 75 of 1996 provides that '(a) Judge in Chambers may on application F 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 G has been committed; (b) that an investigation in respect thereof is being conducted; and (c) that for the purposes of the investigation it is necessary in the interest of justice that information be obtained from a person or authority in a foreign State'.

Held, that whether the requirements for locus standi (a direct interest in the subject-matter of the litigation H which is actual, current and not too far removed) had been met, depended on the facts. If, for example, the South African prosecuting authorities were merely engaged in making preliminary and investigative enquiries and gathering evidence from persons or bodies not directly connected to the applicant, he would probably not have had locus standi to demand an entrée to those enquiries or to claim an interdict to prevent the authorities from proceeding with I them. The facts in the present case were, however, different. Firstly, the three entities referred to were far from being unconnected with the applicant: one of them was a family trust established by the applicant, one of the other two a company that belonged to the trust, and the third a company to which the applicant was closely connected. Secondly, the South African police and prosecuting authorities did not content themselves with mere enquiries directed to these J

2001 (2) SACR p325

bodies to which they were at liberty to respond or not: the requests clearly envisaged A searches, seizures and subpoenas by the Liechtenstein authorities, backed up where necessary by the necessary court orders. And lastly, such orders had, to some extent, already been put into effect in Liechtenstein.

Held, further, that the applicant was sufficiently affected in his rights and legal interests by the seizure of the books, documents and records in question to establish the required locus B standi to challenge their validity: not only were these items the property of entities established by or closely connected to him, but the seizure of those items and the subpoena of witnesses took place with the avowed object of the possible use thereof by the South African prosecuting authorities in a criminal prosecution of the applicant. Thus, even if it could be said that the applicant's interest in the entities was insufficient, in themselves, to constitute a 'direct and C substantial interest' clothing him with locus standi, the fact that he was at risk of being prosecuted meant that his interest was elevated to what was required in this regard, ie a direct interest in the subject-matter of the instant litigation.

Held, further, that the fact that between the granting of the letter of request and the seizure of the items was interposed a discretionary decision by the Liechtenstein court did not remove the D applicant's locus standi to attack the validity of the letter of request. This was, firstly, because a causal link existed between the letter of request and the seizures and, secondly, because a foreign court was unlikely to go behind the solemn findings of a South African Judge.

Held, further, in respect of the applicant's locus standi to claim relief in relation to the South African E prosecuting authorities' non-statutory 'application for international mutual legal assistance' addressed to the Liechtenstein authorities, that the considerations mentioned in relation to the letter of request subsequently issued by the Judge in Chambers applied equally to this request. Accordingly, the...