Thatcher v Minister of Justice and Constitutional Development and Others

• Jurisdiction: South Africa

Thatcher v Minister of Justice and Constitutional Development and Others
2005 (4) SA 543 (C)

2005 (4) SA p543

Citation	2005 (4) SA 543 (C)
Case No	7672/2004
Court	Cape Provincial Division
Judge	Van Zyl J, Moosa J and Dlodlo J
Heard	October 26, 2004; October 27, 2004; October 28, 2004
Judgment	November 24, 2004
Counsel	P B Hodes SC (with Anton Katz) for the applicant.; M Donen SC (with N Bawa) for the first and second respondents.

Flynote : Sleutelwoorde G

International law — Criminal offences — International co-operation in investigation of H crime — Request by foreign State for government assistance in obtaining evidence in South Africa for use in criminal proceedings in foreign State — International Co-operation in Criminal Matters Act 75 of 1996, ss 7 and 8(1) — Procedure relating to request not purely legal exercise but involving interaction between domestic law and international relations with requesting I State — Not necessary for requesting State to motivate or substantiate request — Only requirement that request shoudl be genuine and made in good faith.

Constitutional law — Human rights — Rights of arrested, accused and detained persons — Right to remain silent — Right of person subpoenaed under J

2005 (4) SA p544

s 8(2) of International Co-operation in Criminal Matters Act 75 of A 1996 — Applicant subpoenaed to appear in magistrate's court to answer certain questions posed by foreign State in connection with alleged coup attempt — Applicant averring that right to silence infringed — Weight of authority against allowing applicant to exercise right to silence and against self-incrimination at such stage of proceedings — Minister not required to consider applicant's constitutional rights in decision to approve request for assistance since clear that applicant would not B be deprived of such rights, which he could raise at any time during hearing.

Criminal procedure — International co-operation in investigation of crime — Decisions in terms of ss 7 and 8 of International Co-operation in Criminal Matters Act 75 of 1996 — Director-General merely tasked with satisfying her- C or himself that proceedings instituted in court with jurisdiction over matter — Not duty to consider any further information for purposes of executing purely administrative function — Director-General not required to consult with or advise Minister, but merely to await Minister's decision for purposes of conveying it. D

Criminal procedure — International co-operation in investigation of crime — Rights of person under investigation - Subpoena issued under s 8 of International Co-operation in Criminal Matters Act 75 of 1996 — Person subpoenaed applying for order setting aside subpoena — Applicant averring, inter alia, that right to silence infringed — Weight of authority against permitting applicant to exercise rights to silence and against E self-incrimination at such stage of proceedings — Minister not needing to have considered applicant's constitutional rights in decision to approve request for assistance since it was clear that applicant would not be deprived of those rights, which he could raise at any time during hearing before magistrate hearing evidence. F

Headnote : Kopnota

The applicant was arrested and charged under the provisions of the Regulation of Foreign Military Assistance Act 15 of 1998 as being linked to the financing of an alleged coup attempt in Equatorial Guinea. Two days after his arrest the government of Equatorial Guinea requested the South African government in writing to render assistance to it by allowing it to question the applicant on a G number of matters relating to the alleged coup. This request was approved in terms of s 7 of the International Co-operation in Criminal Matters Act 75 of 1996 (Co-operation Act) and a subpoena subsequently issued in terms of s 8(2) of such Act, compelling the applicant to attend the said court for the purpose of responding to certain questions contained in two lists of questions annexed to the subpoena. The applicant brought an urgent application to review and set H aside the respective decisions of the respondents, and to declare their conduct, in coming to such decisions, unconstitutional. The applicant relied heavily on his right to silence and right of protection against self-incrimination entrenched in ss 35(1)(a) and (c) and ss 35(3)(h) and (j) of the Constitution of the Republic of South Africa Act 108 of 1996, and, so he averred, by not taking these and other considerations, such I as the possibility that the death penalty might be imposed on one or more persons already on trial in Equatorial Guinea, into account when making her decision, the first respondent had acted unconstitutionally. The applicant also submitted that the respective decisions of the first and second respondents (the Minister and the Director-General respectively) fell foul of the provisions of the Promotion J

2005 (4) SA p545

of Administrative Justice Act 3 of 2000, in that such decisions constituted arbitrary, capricious and unreasonable A administrative action which should be set aside.

Held, that the second respondent had, under the provisions of the Co-operation Act, the simple task of satisfying himself that proceedings had been instituted in a court exercising jurisdiction in Equatorial Guinea. Since this had, at all relevant times, been common cause, he did not have to consider the alternative, B namely whether there were reasonable grounds for believing that an offence had been committed. (Paragraph [59] at 562C - D.)

Held, further, that it was certainly not the second respondent's duty to consider any further information for purposes of executing his purely administrative function. He was not required to take cognisance of the merits or demerits of the trial procedures in C Equatorial Guinea or of the penal provisions (including the death penalty) which might be applicable in the event of a conviction. Nor was it necessary for him to give consideration to the alleged link between the applicant and the attempted coup, or to whether it might be in the interests of justice, or of the accused, to grant assistance. (Paragraph [60] at 562F.) D

Held, further, that after satisfying himself as to the requirements of s 7(2) of the Co-operation Act, the second respondent was not required to consult with or advise the first respondent, but merely to await her decision for purposes of conveying it, in terms of s 7(5) of the Act, to the third respondent, being the magistrate within whose area of jurisdiction the applicant resided. From that moment on he was functus officio. (Paragraph [62] at 562J - 563B.) E

Held, further, that it could not be said that the second respondent, in carrying out his statutory functions in terms of the Co-operation Act, acted irrationally, unreasonably, arbitrarily, capriciously, unlawfully or unconstitutionally in any respect. (Paragraph [63] at 563B - C.)

Held, further, that it could not be said that the first respondent did not properly apply her mind when making her decision or that she merely rubber-stamped the advice or recommendation given to F her on the matter. She was, indeed, carrying out a policy decision relating to foreign affairs, as she was empowered and required to do. (Paragraph [81] at 567C - F.)

Held, further, that the weight of authority was against permitting the applicant to exercise his right to silence and right against self-incrimination at that stage of the proceedings. There was hence no merit in the contention that the first respondent acted G arbitrarily, capriciously, irrationally, unlawfully or unconstitutionally by not considering the applicant's constitutional rights in her decision to approve the request of Equatorial Guinea. She was not required to do so since it was clear that he would not be deprived of those rights, which he could raise at any time during the hearing before the fourth respondent. At no stage had such rights been violated or even threatened. (Paragraph [94] at 570F.) H

Held, further, that there was no basis on which the first respondent, or the South African government for that matter, could interfere with the trial running in Equatorial Guinea. It was pure speculation as to whether or not the accused in that trial might be convicted and sentenced. The suggestion that the first respondent had, by approving the request for assistance submitted I by Equatorial Guinea, associated herself, and the South African government, with the possible imposition of the death penalty, was a gross exaggeration, if not an unfair misrepresentation of the government's declared policy. (Paragraphs [104] and [105] at 573I - 574E.)

Held, further, that the applicant was not facing extradition to a country where he would stand trial and, if convicted, could face the death penalty, however J

2005 (4) SA p546

concerned he might have been that an extradition application would be forthcoming. The assistance from the A Courts and the government which the applicant would be entitled to in that instance would be available to him at that stage. At the present stage, however, it was premature and unjustified. (Paragraph [106] at 574F.)

Held, further, that there was no basis for suggesting that the first respondent acted in an irrational, arbitrary, capricious, unreasonable, unlawful or unconstitutional way by not taking into B account the possibility that one of the persons already on trial in Equatorial Guinea could be sentenced to death should he be convicted. (Paragraph [107] at 574H.)

Held, accordingly, that the application had to be dismissed with costs.

Cases Considered

Annotations C

Reported cases

Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) (1996 (4) BCLR 449): referred to

De Lange v Smuts NO and Others 1998 (3) SA 785...