Randgold & Exploration Co Ltd and Another v Gold Fields Operations Ltd and Others

• Jurisdiction: South Africa

Randgold & Exploration Co Ltd and Another v Gold Fields Operations Ltd and Others
2020 (3) SA 251 (GJ)

2020 (3) SA p251

Citation	2020 (3) SA 251 (GJ)
Case No	27672/2008
Court	Gauteng Local Division, Johannesburg
Judge	Opperman J
Heard	November 28, 2019
Judgment	November 28, 2019
Counsel	G Farber SC (with N Konstantinides SC ) for the applicants.; A Subel SC (with S Stein SC, JJ Meiring and Itumeleng Phalane) for the first respondent.

Flynote : Sleutelwoorde

Evidence — Witness — Giving of evidence via video link — High Court asked to request foreign judicial authority to subpoena witness to testify by video link from foreign jurisdiction before South African court.

Headnote : Kopnota

Applicants instituted an action against first respondent and was pending (see [9] and [23]). Applicants applied to the High Court for it to issue letters to certain foreign judicial authorities requesting them to subpoena witnesses in their jurisdictions to give evidence from those jurisdictions, in real time by audiovisual link, to the South African trial court (see [4] – [5] and [23]).

Held, that the application should be dismissed for the following reasons (see [150]).

•

Applicants had not produced precedent in which the foreign judicial authorities had made the orders the letters sought (see [37]).

•

There was no local precedent of a court making the request the High Court was asked to make (see [38] – [40]).

•

No legislation empowered the High Court to make the request (see [47]).

•

The Hague Evidence Convention gave no such power (see [43]).

•

Profiles of the foreign jurisdictions recorded that none would compel a witness to give testimony in the manner sought (see [59] and [65] (United

2020 (3) SA p252

Kingdom), [66] (Jersey), [75] (New South Wales, Australia) and [79] (United States of America)).

•

Representations in the letters would be inaccurate (see [80] and, for example, [85], [87], [91] and [95]).

•

Resort to the inherent power to make the requests would be inappropriate, in that an alternative remedy was available (a commission de bene esse), and such resort would breach the principle of subsidiarity (see [132] – [133] and [137]).

Cases cited

Southern Africa

Abahlali BaseMjondolo Movement SA v Premier of the Province of KZN 2010 (2) BCLR 99 (CC) ([2009] ZACC 31): referred to

Albutt v Centre for the Study of Violence and Reconciliation, and Others 2010 (3) SA 293 (CC) (2010 (2) SACR 101; 2010 (5) BCLR 391; [2010] ZACC 4): referred to

Annex Distribution (Pty) Ltd and Others v Bank of Baroda 2018 (1) SA 562 (GP): dictum in para [26] applied

Brittain v Pickburn 1929 CPD 436: dictum at 438 applied

Caesarstone Sdot-Yam Ltd v World of Marble and Granite 2000 CC and Others 2013 (6) SA 499 (SCA) ([2013] 4 All SA 509; [2013] ZASCA 129): referred to

Centre for Child Law v Hoërskool Fochville 2016 (2) SA 121 (SCA) ([2015] 4 All SA 571; [2015] ZASCA 155): dictum in para [17] applied

Computer Brilliance CC v Swanepoel 2005 (4) SA 433 (T): referred to

Economic Freedom Fighters v Speaker, National Assembly and Others 2016 (3) SA 580 (CC) (2016 (5) BCLR 618; [2016] ZACC 11): referred to

Eke v Parsons 2016 (3) SA 37 (CC) (2015 (11) BCLR 1319; [2015] ZACC 30): referred to

Federated Insurance Co Ltd v Britz and Another 1981 (4) SA 74 (T): distinguished

Fernandes v Fittinghoff & Fihrer CC 1993 (2) SA 704 (W): referred to

Folley v Pick 'n Pay Retailers (Pty) Ltd [2017] ZAWCHC 86: distinguished

Glenister v President of the Republic of South Africa and Others 2009 (1) SA 287 (CC) (2009 (2) BCLR 136; [2008] ZACC 19): referred to

Grant v Grant 1949 (1) SA 22 (C): referred to

Guggenheim v Rosenhaum (1) 1961 (4) SA 15 (W): referred to

Kidd v Van Heeren GJ 27973/98: distinguished

Krivokapic v Transnet Ltd t/a Portnet [2018] 4 All SA 251 (KZD): distinguished

Law Society of South Africa and Others v President of the Republic of South Africa and Others 2019 (3) SA 30 (CC) (2019 (3) BCLR 329; [2018] ZACC 51): dictum in para [23] applied

Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC) (2010 (3) BCLR 239; [2009] ZACC 28): dictum in para [73] applied

MEC for Health and Social Development, Gauteng v DZ obo WZ 2018 (1) SA 335 (CC) (2017 (12) BCLR 1528; [2017] ZACC 37): referred to

Mighty Solutions t/a Orlando Service Station v Engen Petroleum Ltd and Another 2016 (1) SA 621 (CC) (2016 (1) BCLR 28; [2015] ZACC 34): dictum in para [39] applied

Moulded Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis and Another 1979 (2) SA 457 (W): dictum at 426H applied

My Vote Counts NPC v Speaker of the National Assembly and Others 2016 (1) SA 132 (CC) (2015 (12) BCLR 1407; [2015] ZACC 31): dictum in para [163] applied

2020 (3) SA p253

Paarl Roller Flour Mills v Union Government 1925 (1) PH F39 (C): distinguished

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A): referred to

S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae) 2002 (6) SA 642 (CC) (2002 (2) SACR 499; 2002 (11) BCLR 1117; [2002] ZACC 22): referred to

Sansinena Distributing Syndicate v Cape Cold Storage and Supply Co Ltd (1908) 18 CTR 774: distinguished

Segal v Segal 1949 (4) SA 86 (C): distinguished

Uramin (Incorporated in British Columbia) t/a Areva Resources Southern Africa v Perie 2017 (1) SA 236 (GJ): distinguished.

United States of America

Benfield Greig Ltd v Kirkpatrick 2003 WL 25877256: considered.

Case Information

G Farber SC (with N Konstantinides SC) for the applicants.

A Subel SC (with S Stein SC, JJ Meiring and Itumeleng Phalane) for the first respondent.

An application for the court to request foreign judicial authorities to subpoena individuals in their jurisdictions to testify from those jurisdictions by video link, before a South African court.

Order

The application is dismissed with costs, including the costs of two senior counsel where so employed.

Judgment

Opperman J:

Introduction

[1] The applicants seek to procure, through video-link technology, the evidence of a range of witnesses who are located outside of South Africa. To this end, they seek this court's intervention. They ask for the stamp of approval of this court to permit testimony to be given abroad and to be relayed to this court through the use of video-link technology. Specifically, the applicants ask that this court invoke the assistance of, and the tools of compulsion available to, the foreign judicial authorities in question, to compel the witnesses to testify abroad and to provide documents to the applicants. They say that they seek the testimony of those witnesses to support the central theme of their case against the first respondent. The evidence in question, they add, is uncontroversial: it is formal in character, relating as it does to establishing the audit trail of the shares that form the subject-matter of claims 1 – 4.

[2] In support of their application, the applicants rely on a quartet of cases [1] which, they contend, constitutes precedent in South Africa for the relief they are seeking.

2020 (3) SA p254

Opperman J

[3] At the outset it should be stated that none of the quartet of cases involved a court in the foreign jurisdiction compelling a witness to testify and/or produce documents in that foreign jurisdiction. All of the witnesses in the quartet of cases co-operated with the process involved in transmitting their evidence from the foreign jurisdiction via video link to a tribunal or court in South Africa. A further distinguishing feature is that the co-operation or assistance of the court in the foreign jurisdiction was not requested. It was simply a matter of setting up a venue with the appropriate equipment and transmitting the evidence to a court in South Africa. The situation with which this court is confronted is completely novel and unprecedented, a point made with considerable force by the first respondent.

Nature of the relief

[4] The application is to secure an order authorising the issue by this court of the letters of request, [2] being annexures A – I attached to the notice of motion (the letters of request), which requests are directed at obtaining (from the identified foreign witnesses) the relevant evidence identified therein, through the medium of video link, which letters of request are to be made to the following foreign authorities in respect of the following identified foreign witnesses:

[4.1]

the Competent Judicial Authority of Jersey regarding the evidence to be taken from Computershare (Channel Islands) Ltd, Hillgrove Street, St Helier, Jersey JE1 1ES (Computershare CI);

[4.2]

the Competent Judicial Authority of England and Wales regarding the evidence to be taken from:

[4.2.1]

BNY Mellon (London Branch) (previously known as the Bank of New York Mellon, London Branch), One Canada Square, Canary Wharf, London E14 5AL, United Kingdom (BONY London);

2020 (3) SA p255

Opperman J

[4.2.2]

Mr Simon Southall, an English solicitor in the employ of Thrings International, London office, 20 St Andrews Street, London, EC4a 3 AG, 2 AG, 2 (Mr Southall);

[4.2.3]

Investec Bank Plc (formerly Investec Bank, UK, London, United Kingdom, 2 Gresham Street, London, EC2CV ZQP (IBUK);

[4.2.4]

Credo Capital Plc, 8 – 12 York Gate, 100 Marylebone Road, London, NW1 5DX, United Kingdom (Credo Capital);

[4.2.5]

Computershare Investor Services Plc, The Pavilions, Bridgewater Road, Bristol BS13 8AE (Computershare Bristol);

[4.2.6]

Pershing Securities Ltd United Kingdom (previously known as Pershing Keen Nominees, Royal Liver Building Pier head, Liverpool, Merseyside, L3 1LL, United Kingdom (Pershing Securities);

[4.3]

the Competent Judicial Authority of New Jersey regarding the evidence to be taken from Pershing LLC, One Pershing Plaza...