The South African International Cooperation in Criminal Matters Act and the issue of evidence

• Jurisdiction: South Africa
• Author: Jamil Ddamulira Mujuzi
• DOI: 10.10520/EJC182696
• Published date: 01 January 2015
• Date: 01 January 2015
• Pages: 351-387
• Published By: University of Pretoria

351

The South African International Co-

operation in Criminal Matters Act and the

issue of evidence

Jamil Ddamulira Mujuzi*

LLB (Hons) LLM LLM LLD

Associate Professor of Law, Faculty of Law, University of the Western Cape

OPSOMMING

Die Suid Afrikaanse Wet op Internasionale Samewerking in Strafregtelike

Aangeleenthede en die Kwessie van Getuienis

Suid Afrika het verskeie inisiatrewe aangeneem ten einde tesame met

ander lande misdaad te bekamp. Een sodanige inisratief behels die

aanname van die Wet op Internasionale Samewerking in Strafregtelike

Aangeleenthede (International Co-operation in Criminal Matters Act

(‘ICCMA’)) in 1996, weike wet ten doel het om getuienis lewering, die

uitvoering van vonnisse in strafsake, en die konfiskering en oordrog van

opbrengste voortspruitend uit misdaad te vergemaklik tussen Suid Afrika

en buitelandse state. Die ICCMA bestaan uit vyf hoofstukke maar die

oorgrote meerderherd van regspraak afkomstig van Suid Afrikaanse howe

her gehandel met die hoofstuk wat betrekking het op die verkryging en

toelaatboorherd van getuienis. Dit is gevolglike teen hierdie agtergrond wat

hierdie artikel focus op die aspekte rakende getuienis wat deur die Suid

Afrikaanse howe behandel is. Die doel van hierdie artikel is gevolglik om

aan te toon hoe Suid Afrikaanse howe die bepairngs van die Wet rakende

getuienis, geinterpreteer het. ’n Aanbeveling word gevolglik voorsien ten

aansien van hoe artikel gewysig kan word.

1Introduction

South Africa has adopted different initiatives to cooperate with other

countries in the fight against crime. These have included the signing of

bilateral agreements on issues such as mutual legal assistance in criminal

matters1 and extradition;2 the ratification of multilateral treaties on

1 I am grateful to Professor Israel Leeman for his comments on the earlier

draft of this article. The usual caveats apply. Email: djmujuzi@gmail.com

1 Countries with which South Africa has signed treaties on mutual legal

assistance in criminal matters include Canada, USA, Lesotho, Egypt,

Algeria, Nigeria, France, China, and India. See http://www.justice.gov.za/ilr/

mla.html (accessed 2014-01-13).

2 South Africa has extradition agreements with several countries including

Botswana, Lesotho, Malawi, Swaziland, USA, Canada, Australia, Israel,

Egypt, Algeria, Nigeria, China and India.

How to cite: Mujuzi ‘The South African International Co-operation in Criminal Matters Act and the issue of

evidence’ 2015 De Jure 351-387

http://dx.doi.org/10.17159/2225-7160/2015/v48n2a6

*

352 2015 De Jure

issues such as corruption,3 organised crime4 and extradition;5 and the

enactment of domestic pieces of legislation such as those dealing with

the collection of evidence from other countries6 and those giving South

African courts jurisdiction over offences committed outside South

Africa.7 In 1996 the South African legislature enacted the International

Co-operation in Criminal Matters Act (‘ICCMA’).8 In 1997 the Regulations

under the ICCMA were promulgated to operationalise the Act.9 The

purpose of the Act is to ‘facilitate the provision of evidence and the

execution of sentences in criminal cases and the confiscation and

transfer of the proceeds of crime between the Republic [of South Africa]

and foreign States; and to provide for matters connected therewith’.10

The South African Department of Justice and Constitutional Development

has indicated that there is an increase in the number of requests for

extradition and mutual legal assistance.11 It appears that most of these

requests come from African countries.12 However, this information is

3 South Africa ratified the United Nations Convention against Corruption,

United Nations Treaty Series vol. 2349 p 41; Doc. A/58/422 in November

2004.

4 South Africa ratified the United Nations Convention against Transnational

Organised Crime in February 2004.

5 For example, South Africa acceded to the Council of Europe’s Convention

on Extradition in 2003 and ratified the SADC Protocol on Extradition in

2003.

6 See, for example, Documentary Evidence from Countries in Africa Act No

62 of 1993 and Foreign Courts Evidence Act No 80 of 1962.

7 See for example, the Prevention and Combating of Torture of Persons Act

13 of 2013 (which, inter alia, gives South African courts jurisdiction over the

crime of torture committed outside South Africa) and the Protection of

Constitutional Democracy Against Terrorists and Related Activities Act No

33 of 2004 (which gives South African courts jurisdiction over the offence

of terrorism committed outside South Africa).

8 Act No 75 of 1996.

9 Regulations under the ICCMA GNR 1729 of 1997-12-19, GG No 18556.

10 Long title of the ICCMA.

11 ‘The Department dealt with 133 requests for extradition and mutual legal

assistance cases during the year under review, compared to the 99 handled

during the 2011/12 financial year. This is a clear indication of the intentions

of the country to deal decisively with transnational crime’. See Annual

Report of the Department of Justice and Constitutional Development 2012/

2013 (August 2013) 33. Available at http://www.justice.gov.za/reportfiles/

anr2012-13.pdf ; in its 2013/2014 annual report, the Department reported

that ‘during the year under review, the Department received 154 requests

for extradition and mutual legal assistance, 58 of those requests did not

comply with the Act and had to be referred back to the requestors. A total of

77 of 94 valid requests were processed within the prescribed time frames,

translating into 82% achievement’. See Annual Report 2013/2014 at 70;

available at www.gov.za/sites/www.gov.za/files/doj%20anr2013-14_a.pdf.

12 ‘During the year under review, the Directorate: International Legal Relations

(Africa and South) received 131 requests for extradition and mutual legal

assistance in criminal matters. Of these requests, 32 had to be returned to

the respective states, as the requests did not comply with South Africa’s

domestic law. A total of 99 valid requests have been processed and

channelled to the NPA and/or Interpol for execution’. See South African

Yearbook 2012-2013 at 423; available at http://www.justice.gov.za/about/sa-

yearbook/2012-13_chp15_sayearbook.pdf.

The South African International Co-operation in Criminal Matters Act 353

silent on the number of requests made by and to South Africa on the

basis of the ICCMA. The ICCMA has five chapters: Chapter one deals with

definitions; chapter two with mutual provision of evidence; chapter three

with mutual execution of sentences and compensatory orders; chapter

four with confiscation and transfer of proceeds of crime; and chapter five

with miscellaneous issues. It is beyond the scope of this article to deal

with all five chapters. The purpose of this article is to show how South

African courts have interpreted the provisions of the ICCMA relating to

the issue of evidence.

2 The Definition of ‘Evidence’

The ICCMA defines ‘evidence’ to include ‘all books, documents and

objects produced by a witness’.13 The ICCMA uses the word ‘evidence’ in

some sections and ‘information’ in other sections and this has been the

subject of debate before South African courts. In Beheersmaatschappij

Helling I NV and Others v Magistrate, Cape Town, and Others, the High

Court held that evidence ‘is widely defined in the Act’.14 Section 2(2) of

the ICCMA empowers a judge, in chambers, or a magistrate to issue a

letter requesting assistance from a foreign state for ‘information’ as

stated in the letter of request for the purposes of an investigation relating

to an alleged offence. As will be illustrated later, section 2(1) uses the

word ‘evidence’ and not ‘information’. Section 2(2) does not use the

word ‘evidence’ but rather ‘information’. However, section 5 of the

ICCMA provides that ‘evidence’ obtained on the basis of a letter of

request – whether issued on the basis of section 2(1) or 2(2) – is

admissible. Therefore, when a letter of request is issued in terms of

section 2(1), evidence is being sought but what is sought from a foreign

state, on the basis of section 2(2), is not evidence, but information which

is needed for the purpose of investigating whether or not the alleged

offence was committed. Once that information confirms that the alleged

offence was committed and it is adduced before a court for the purpose

of prosecution, it becomes evidence. In other words, it mutates from

information to evidence. In National Director of Public Prosecutions v

Jacob Gedleyihlekisa Zuma and Others15 one of the issues was the meaning

of the word ‘information’ in section 2(2). The applicants argued that

information obtained on the basis of section 2(2) should not be elevated

to the level of evidence unless the person about whom that information

was gathered had been given an opportunity to be heard in the process

of collecting the information. The Court held that information ‘does not

simply mean knowledge gleaned or intelligence received’ and that the

legislature was aware of the differences between sections 5(5) and 2(1)

13 S 1.

14 Beheersmaatschappij Helling I NV and Others v Magistrate, Cape Town, and

Others 2007 (1) SACR 99 (C) at 109. The reasoning in this case was

endorsed in S v Miller and Others (SS13/2012) [2015] ZAWCHC 118 2015-9-

2) par 54.

15 The National Director of Public Prosecutions v Jacob Gedleyihlekisa Zuma and

Others (Case No 13569/2006) (2007-04-02).