Kolbatschenko v King NO and Another

• Jurisdiction: South Africa
• Citation: 2001 (4) SA 336 (C)

Kolbatschenko v King NO and Another
2001 (4) SA 336 (C)

2001 (4) SA p336

Citation	2001 (4) SA 336 (C)
Case No	6013/2000
Court	Cape Provincial Division
Judge	Thring J and Van Heerden J
Heard	November 10, 2000; November 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 second respondent (The National Director of Public Prosecutions).

Flynote : Sleutelwoorde G

International law — Legal proceedings — Request for international legal assistance in criminal investigation — Statutory request by Judge H in Chambers in terms of s 2(2) of International Co-operation in Criminal Matters Act 75 of 1996 — Decision to request assistance and request itself involving implementation of legal norms applicable to judicial review of administrative decision-making, and not affecting I relationship between South Africa and foreign State as States — Dispute regarding legality of request accordingly justiciable in South African courts.

International law — Legal proceedings — Request for international legal assistance in criminal investigation — Non-statutory request by South African prosecuting authorities for assistance by foreign State in obtaining evidence J

2001 (4) SA p337

to aid criminal investigation in South Africa — Decision to request assistance and request itself involving A implementation of legal norms applicable to judicial review of administrative decision-making, and not affecting relationship between South Africa and foreign State as States — Dispute regarding legality of request accordingly justiciable in South African courts. B

Administrative law — Administrative act — What constitutes — Decision by Judge in Chambers to issue letter of request in terms of s 2(2) of International Co-operation in Criminal Matters Act 75 of 1996 for assistance by foreign State in obtaining evidence to aid criminal investigation and issue thereof — Such amounting to administrative action by or on behalf of South African Government. C

Administrative law — Administrative act — What constitutes — Non-statutory request by South African prosecuting authorities for assistance by foreign State in obtaining evidence to aid criminal investigation in South Africa — Decision to request assistance and request itself amounting to administrative action by South African Government. D

Criminal procedure — Investigation of crime — Rights of person under investigation — Locus standi of person under investigation to 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 E 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 F 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.

Criminal procedure — 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 G 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 H 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 I in 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 J

2001 (4) SA p338

also to non-statutory request by South African prosecuting authorities for assistance by foreign State in obtaining A evidence to aid criminal investigation in South Africa.

Constitutional law — Judicial review of public power — Requests by Judge in Chambers and by Director of National Prosecutions in terms of International Co-operation in Criminal Matters Act 75 of 1996 for assistance by foreign State in obtaining evidence to aid criminal B investigation — Such requests not involving issues of high executive nature but entailing legal questions concerning relationship between State and individual suspected of having committed offences in South Africa and aimed at obtaining information from foreign State for purposes of further investigation by South African authorities into such offences — Such exercise of public power accordingly justiciable by C South African courts.

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 D 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 Act 121 of 1998, E that was to be found in the possession of three entities, two companies and a trust, all registered in Liechtenstein, to which the applicant, 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 F information'. When it came to the attention of the applicant that a regional court in Liechtenstein had granted an order for the search and 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 G authorities in Liechtenstein for 'international mutual assistance in a 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 H preliminary points of law, viz (1) that the applicant lacked 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 I they were to a foreign government, constituted the conduct of foreign affairs by South Africa and were as such not justiciable in a South 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. J

2001 (4) SA p339

Section 2(2) of the International Co-operation in Criminal Matters Act 75 of 1996 provides that '(a) Judge in Chambers may on A 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 B 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 which is actual, current and not too far removed) had been met, C 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...