High Court of
Appeal Case No. : 356106
In the matter of :
Ex Parte :
National Director of Public Prosecutions
IN RE AN APPLICATION FOR THE ISSUING OF A LETTER OF REQUEST IN TERMS OF SECTION 2 (2) OF THE INTERNATIONAL CO-OPERATION IN CRIMINAL MATTERS ACT, 1996 (ACT NO. 75 OF 1996).
ANSWERING AFFIDAVIT OF JACOB GEDLEYIHLEKISA ZUMA
I, the undersigned, JACOB GEDLEYIHLEKISA ZUMA, make oath and say:
1. I am an adult male.
2. I am the first accused in criminal proceedings prosecuted by the State in the Natal Provincial Division of the High Court of South Africa under Case No. CC.3584/2005 ("the criminal trial"). The second accused in those proceedings is Thint Holding (Southern Africa) (Proprietary) Limited. The third accused is Thint (Proprietary) Limited. I shall refer to the French accused in this affidavit as "the French entities".
3. This application in terms of the International Co-Operation in Criminal Matters Act, No. 75 of 1996 ("the ICCM Act") relates directly to the criminal trial. As the first accused in that trial I am advised and respectfully believe that I have a direct and substantial interest in this application which entitles me to oppose the application and deliver this answering affidavit. I believe that the State recognises this in its founding papers.
4. The application was served on my attorneys on 4 December 2006. It was agreed between the State and my attorneys that this answering affidavit would be delivered by 9 February 2007.
5. Save as may otherwise be stated herein or as may appear from the context, the facts herein deposed to are within my personal knowledge and belief. Submissions of law are made on the advice of my legal representatives.
6. In this affidavit I shall first summarise my main contentions that I advance in opposition to this application. I shall then deal, insofar as it remains necessary for me to do so, with the contents of the State's papers. Headings are included for the purpose of convenience and to indicate the main thrust of what is dealt with thereunder. They must not be construed as an attempt to segregate the contents of this affidavit into watertight compartments.
SUMMARY OF MAIN CONTENTIONS :
7. In broad outline my main contentions in opposition to this application are the following :
(a) I am advised and respectfully believe that the State's application is misconceived. In particular, I dispute that it is appropriate or permissible for the State to purport to rely on the provisions of Section 2 (2) of the ICCM Act in the circumstances of this case. I shall deal with this contention below under the head "IS SECTION 2 (2) OF THE ICCM ACT APPLICABLE?".
(b) I am further advised and respectfully submit that even if it were to be found that it is appropriate or permissible for the State, in the circumstances of this case, to request an Order under Section 2 (2) of the ICCM Act, the State fails to make out a case for such an Order in that the State fails to establish the jurisdictional pre-requisites to an Order under Section 2 (2). This aspect of the matter will be dealt with below under the head "THE RELEVANT JURISDICTIONAL PRE-REQUISITES OF SECTION 2 (2) OF THE ICCM ACT".
(c) I am further advised and respectfully believe that the State's application is tainted by the State's own prior conduct set out in the State's application papers. I shall deal with this aspect of the matter below under the head "THE CLEAN HANDS PRINCIPLE".
IS SECTION 2 (2) OF THE ICCM ACT APPLICABLE ?
8. It is common cause that in December 2005 the State launched an application for, as far as I believe, substantially the same relief sought by the State in this application. In December 2005 the State relied specifically on Section 2 (1) of the ICCM Act. On 22 March 2006, Combrinck, J. (as he then was) delivered judgment in which he concluded that it was only the Court presiding at the criminal trial that had the power to issue a letter of request under Section 2 (1) of the ICCM Act. The Order that Combrinck, J. made on 22 March 2006 was the following :
"The order that I make is therefore the following.
(a) The application by the State is adjourned to a date to be arranged between the parties to be heard by the Court seized of the trial of the three accused on the charges which have been brought against them.
(b) The application by Accused 2 and 3 under Case No. 172184/05 is dismissed.
(c) There will be no order as to costs".
9. As far as I am aware, the State has never withdrawn its application under Section 2 (1) of the ICCM Act which was adjourned by Combrinck, J. to a date to be arranged between the parties to be heard by the Court seized of the trial. Instead, the State brought an application for the postponement of the criminal trial which was due to commence on 31 July 2006. The application for the postponement was heard by the trial Judge, Msimang, J. who on 20 September 2006 refused the State's application for a postponement of the criminal trial. Having refused the State's application for a postponement, Msimang, J. thereupon enquired of the prosecution whether the prosecution intended to withdraw the charges, including the charges against me as Accused No. 1. It left it to the Court to decide what to do with the matter. The State placed on record that the State did not withdraw the charges. Should this be disputed in reply, I shall call for a transcript of the proceedings on 20 September 2006 when judgment was delivered. The State having declined to withdraw the charges, Msimang, J. ordered that the matter be struck from the Roll. The charges against me have never been withdrawn.
10. I am advised and respectfully believe that an Order that the matter be struck from the Roll does not bring the prosecution to an end, or mean that the prosecution cannot be resumed. Whilst I personally may share the prosecution's view that's that there are no charges against me, it has been explained to me that this is a moot point but that my legal Counsel believe the contention advanced herein is the better view. This is a matter of law which will be dealt with in argument.
11. Instead of pursuing its application in terms of Section 2 (1) before the trial Judge, the State elected to rely on the alleged necessity of obtaining original documents from Mauritius as one of the grounds of the postponement sought by the State but refused by Msimang, J. Having left its application under Section 2 (1) of the ICCM Act to lie, and having taken no further steps in the prosecution since the matter was struck from the Roll on 20 September 2006, the State now brings this application, effectively I believe for the same relief, specifically in terms of Section 2 (2) of the ICCM Act. I am advised and respectfully believe that it is incumbent upon the State to establish that Section 2 (2) of the ICCM Act is applicable in the circumstances and that, if it is not, the application falls to be dismissed with costs, including the costs consequent upon the employment of two Counsel.
12. I am advised and respectfully submit that a letter of request can only be issued under Section 2 (2) prior to the institution of criminal proceedings, namely at a stage when there is no question of an accused person whose procedural rights require protection. This contention is a matter of law which will be dealt with in argument.
13. In the premises, I am advised and respectfully believe that the State's reliance in its founding papers on the contention that "there are no longer criminal proceedings pending", and that the State is entitled to bring this application under Section 2 (2) of the ICCM Act, is misconceived and bad in law. (See, for example, paragraphs 17 and 18 of the founding affidavit). This is a matter of law which will be dealt with in argument.
14. In the premises, I am advised and respectfully believe that this Court does not have the power, in the circumstances of this case, to make an Order under Section 2 (2) of the ICCM Act, as requested by the State. I ask that the application be dismissed and that the State be ordered to pay my costs, including the costs consequent upon the employment of two Counsel.
THE RELEVANT JURISDICTIONAL PRE-REQUISITES TO SECTION 2 (2) OF THE ICCM ACT" :
15. For the purpose of convenience, and to avoid unnecessary cross-referencing, I set out the provisions of Section 2 (2) of the ICCM Act :
"(2) A judge in chambers or a magistrate may on 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 respect thereof is being conducted ; and
(c) that for purposes of the investigation it is necessary in the interests of justice that information be obtained from a person or authority in a foreign State".
16. I am advised and respectfully believe that the plain and express purpose of Section 2 (2) of the ICCM Act is to : "obtain information for use in an investigation".
17. It follows that the jurisdiction prerequisites relevant to this case, under Section 2 (2) of the ICCM Act, are twofold :
(a) to obtain information ;
(b) for use in an investigation.
18. I am advised and respectfully believe that the State, on its own version, fails to make out any case that the State is endeavouring to obtain information for use in an investigation.
19. It is plain from the State's founding papers, particularly in McCarthy's draft letter of request which this Court is asked to issue in terms of Section 2 (2) of the ICCM Act, that the letter of request is a request for the original documents seized from the premises of Thales (one of, or associated with, the French entities) on 9 October 2001 in Mauritius and retained by the offices of the ICAC in Mauritius. (McCarthy's draft letter of request, paragraphs 38 and 39).
20. Copies of those original documents were handed to the State, represented by the lead Prosecutor in the criminal trial against me, Advocate W.J. Downer SC, on 10 October 2001. I refer to paragraph 18 of McCarthy's draft letter of request.
21. In the premises, the information contained in the documents requested under the draft letter of request has been in the possession and knowledge of the prosecution since at least 10 October 2001. The information has plainly already been put to use in the investigation against me. In this regard, I respectfully refer to annexure "LM.8" to McCarthy's draft letter of request. "LM.8" is a letter dated 7 October 2002 sent by Downer to the Commissioner of the ICAC, Mauritius. In "LM.8" Downer records the following :
"The documents which you list have been of invaluable assistance in the investigation".
22. Downer's reference to "the documents which you list" is a reference to the list of documents attached to annexure "LM.7", the Commissioner's letter to Downer dated 25 September 2002. The documents requested in McCarthy's draft letter of request are the documents referred to in the list prepared by the Commissioner of the ICAC, "LM.7". The conclusion is ineluctable that the information has already been used in the investigation. Indeed, on the State's version, the information has been "of invaluable assistance in the investigation".
23. In the premises, I respectfully contend that :
(a) the State does not seek any information ;
(b) even if it did seek information, the State does not seek to use that information in an investigation.
24. It follows that the State does not establish the jurisdictional prerequisites for the issuing of a letter of request under Section 2 (2) of the ICCM Act.
25. I am advised and respectfully submit that in fact this application has nothing to do with an investigation or the obtaining of information for use in any such investigation. This application is an attempt to secure original documents, copies of which have long since been in the possession of the prosecution, in the hope that the original documents will render their contents admissible against me in evidence at trial. Quite apart from the fact that this is a forlorn hope (as alluded to by Combrinck, J. (as he then was) in his judgment dated 22 March 2006), I respectfully submit that it does not bring the State within the provisions of Section 2 (2) of the ICCM Act or entitle the State to an Order in terms of Section 2 (2). I ask that the application be dismissed with costs, including the costs consequent upon the employment of two Counsel.
THE CLEAN HANDS PRINCIPLE :
26. I am advised that there is a well known and long established principle of law known as "the clean hands principle" which requires a litigant, in this case the State, to come to Court with clean hands. The history, content and import of this principle is a matter for argument. It is plain, on the State's own founding papers in this application, that the State does not come to Court with clean hands. I shall elaborate on this aspect of the matter but, before doing so, it is necessary for me to record that what I have to say in this affidavit is not intended, and must not be construed, as a personal attack or slight on the representatives of the State concerned in this matter, one of whom is the lead Prosecutor, Downer. My attack on the State is directed at the misguided and over zealous approach which the State has chosen to adopt in investigating and prosecuting the charges against me.
27. On 9 October 2001 the State procured that co-ordinated search and seizure operations were carried out at various premises in South Africa, France and Mauritius. I believe that these operations were directed at Schabir Shaik, and certain corporate entities controlled by him or in which he had an interest, and the French entities, Accused 2 and 3. One of the French entities was initially charged as a co-accused with Shaik, but the charges were withdrawn against that French accused. I was never charged as a co-accused with Shaik, for reasons known only to the State or only understood by the State.
28. The State's case in this application is that the operation in Mauritius on 9 October 2001 was initiated by way of a prosecution request addressed to the Mauritian authorities on 1 October 2001 (backed or constituted by an affidavit deposed to by one Gerda Ferreira, then a member of the Directorate of Special Operations). Although Ferreira's affidavit is referred to in the State's founding papers, the State does not see fit to put up a copy of that affidavit, stating that it is a voluminous document and is in any case also on record at the Supreme Court of Mauritius. I request a copy of that affidavit or, if it is already included in the application papers for the State's application for a postponement of the criminal trial on 31 July 2006, I ask that the State identify the said affidavit to my legal representatives. I reserve the right to supplement my affidavit with reference hereto.
29. Pursuant to the prosecution's request to the Mauritian authorities, as aforesaid, the Director of the Economic Crime Office, Mauritius, launched an ex parte application in the Supreme Court of Mauritius for an Order authorising the Director of the Economic Crime Office, Mauritius to enter and search certain premises in Mauritius and to remove any document or material for the purposes of executing the South African prosecution's request. The founding affidavit in the ex parte application in Mauritius (an unsigned and undated copy of which appears as "LM.6" to McCarthy's draft letter of request) states that it was a matter of importance that the search and seizure operation be carried out on Tuesday 9 October 2001, simultaneously with the planned search and seizure operations in South Africa and France, failing which the element of surprise would be lost ("LM.6", paragraph 12). The fact that the application was launched ex parte and without notice to the persons or entities whose premises were to be searched, and that the entire procedure was to be kept a secret, is evident from the founding affidavit in that application, annexure "LM..6" to McCarthy's draft letter of request.
30. On 5 October 2001, a Judge of the Supreme Court of Mauritius, evidently sitting in Chambers, granted the ex parte request of the Director of the Economic Crime Office, Mauritius and issued the Order which is said to appear as annexure "LM.2" to McCarthy's draft letter of request. The Order itself is in fact unmarked in the papers served on me.
31. The Mauritian Order dated 5 October 2001 authorises the Director of the Economic Crime Office, Mauritius to enter and search certain premises and to remove any document or material for the purposes of executing the request of the South African prosecution authorities. Various documents are specified in the Mauritian Order in this regard.
32. I respectfully draw to the attention of this Honourable Court that the Mauritian Order does not confer any authority on the person to whom it was granted, i.e. the Director of the Economic Crime Office, Mauritius, to hand any documents or items seized or removed from the premises in question on 9 October 2001, to any person. This was no mere omission from the Order. The founding affidavit pursuant to which the Order was granted contained no request to hand to any person, or make copies available to any person, of any documents or items seized or removed. Moreover, even the original request from the South African prosecution authorities, dated 1 October 2001, contained no such request that any document or item or copy thereof, be handed to any member of the South African prosecution authorities by the Mauritian authorities. In the latter regard I refer to the document said to be annexure "LM.9" to McCarthy's draft letter of request (unmarked in the documents served on me), which is a letter dated 17 January 2003 addressed by the Deputy Commissioner, ICAC (Mauritius) to Downer.
33. Significantly, Downer and another representative of the prosecution authority, Da Silva, travelled to Mauritius specifically for the purpose of the ex parte application to obtain authority for the search and seizure operation, as well as the operation itself which was carried out on 9 October 2001. On Downer's version, he was present at Court, although not in Chambers itself, at the time at which the Mauritian Order was granted on 5 October 2001. Downer was provided with a copy of the Order once granted. (Downer's affidavit, paragraph 10, said to be annexure "LM.5" in paragraph 18 of McCarthy's draft letter of request but unmarked in the papers served on me).
34. Having been handed a copy of the Mauritian Order, apparently on 5 October 2001, Downer and Da Silva remained in Mauritius and accompanied the Mauritian authorities to the premises of Thales on 9 October 2001 when the search and seizure operation was carried out. Downer did not enter the premises, but waited outside and plainly provided input and assistance to the Mauritian authorities in the execution of the search and seizure Order. (Downer's affidavit, "LM.5", at paragraphs 13 and 14). Indeed, the express purpose of Downer's presence in Mauritius in September 2001 was to assist the Mauritian authorities. (Downer, "LM.5" at paragraph 8).
35. In all the circumstances set out above I respectfully submit that it is unthinkable that Downer was not well aware of the terms of the Order granted in the Supreme Court of Mauritius on 5 October 2001. Indeed, I would be surprised were Downer not to have actively participated in the drafting of the Order sought, or at least in reading and approving the Order sought before it was requested from the Supreme Court Judge in Chambers on 5 October 2001. The detailed terms of the Order itself leave no room for doubt that the South African prosecution authorities played a central role in its drafting, and so conversant was Downer with the terms of the Order that he is able, on his own version, to state that he drew to the attention of the officer in command of the search at Thales' premises, the fact that Thetard's diary had been specifically mentioned in the application papers and the Order itself (Downer, "LM.5", paragraph 14).
36. In the aforegoing circumstances, I respectfully submit that the inference is inescapable that Downer must have been aware that the Order contained no provision authorising the Mauritian authorities to hand any documents or items, or copies thereof, seized during the search on 9 October 2001 to any person at all, including the South African prosecution authorities. Clearly the Order was intended to secure the documentation.
37. Moreover, Downer is a Senior Counsel of the above Honourable Court. I am advised and respectfully believe that it is a long established and well known principle of South African law that an Order granted ex parte, and the execution of that Order, cannot operate to the detriment of the rights or interests of a person or entity affected by the Order. Such a person or entity can be in no worse position when his side is heard than if the Order had not been granted. In particular, such a person or entity always has the right to approach a Court for relief pursuant to the granting or execution of an ex parte Order against him, and to have that Order reconsidered or to challenge the validity of its issue or the legality of its execution with a view, inter alia, to the return of any items seized pursuant to the Order, as well as the return of copies thereof which might have been made pursuant to the seizure. I believe that an Order for the disclosure and return of all copies made is routinely incorporated in such an Order, for obvious reasons. I cannot believe that the law or practice in the aforegoing regard is any different in Mauritius, or that Downer could have been of the view that Mauritian law or practice differed to South African law or practice in that regard.
38. I also cannot believe that it was not present to the mind of Downer that his conduct in accepting copies of documents seized in Mauritius on 9 October 2001 and bringing those copies back to South Africa the following day, would effectively have defeated the purpose of any Order subsequently granted in Mauritius for the return of items seized and any copies made. In accepting the copies and bringing them back to South Africa, Downer removed the copies from the possession of the Mauritian authorities and the jurisdiction of the Mauritian Courts, and rendered nugatory any Order for their return to the persons from whom they had been seized. Downer's conduct would have prejudiced those persons irremediably in the event that they had subsequently obtained such an Order (which is precisely what those persons did). (See McCarthy's draft letter of request, paragraphs 49 and 50).
39. I find it disconcerting that in this case the State has seen fit to present its papers in such a way that it purports to place reliance on what appears to be a copy of an affidavit signed by Downer on 4 February 2005 in other proceedings ("LM.5" to McCarthy's draft letter of request). I deny that the document, "LM.5", is admissible in these proceedings, or is properly before the Court in these proceedings. However, be this as it may, it is apparent from "LM.5" that as long ago as 4 February 2005 (the date on which "LM.5" was signed), Downer was aware of the fact that it was necessary for him to try and justify his conduct in accepting and removing copies of documents seized in Mauritius on 9 October 2001. Downer purports to seize on a single phrase in the Mauritian Order dated 5 October 2001 which reads "for the purposes of executing the request". Downer states in his alleged affidavit that this phrase entitled the Mauritian authorities to give, and Downer to accept and remove, copies of the original documents seized on 9 October 2001. I say that this purported justification on which Downer attempts to seize is untenable. Two rhetorical questions spring immediately to mind in refuting the contention :
(a) If the intention underlying the Mauritian Order of 5 October 2001 was that copies of documents or items seized could be made and handed to the South African authorities, then why did the Order simply not say so plainly and unequivocally, and not content itself with an obscure and ambiguous phrase tacked on like a lame appendage ?
(b) If Downer really believed that the Mauritian Order of 5 October 2001 entitled him to accept and remove from the jurisdiction of the Mauritian Courts copies of the original documents, then why did he not just remove the original documents themselves ? It must surely have been at the forefront of his mind that the original documents would be necessary for "the purposes of executing the request".
40. In all the circumstances set out above, I respectfully submit that it must have been, or at the very least ought to have been, apparent to Downer that his conduct in accepting copies of the documents seized at the various searches on 9 October 2001 in Mauritius was unlawful.
41. Undeterred by these considerations, Downer arrived back in South Africa after triumphantly flourishing the copies he had unlawfully obtained. I say that Downer triumphantly flourished the copies on the strength of a photograph published in on , a copy of which I annex hereto marked "A". The person depicted in the photograph is Downer. The caption to the photographs speaks for itself.
42. The unlawfulness of the State's conduct in accepting copies of the documents seized, and using those copies in the investigation against me, is incontrovertibly borne out by subsequent events described by the State in their founding papers.
43. In September 2002 the South African prosecution authorities were informed by the Mauritian authorities that entities from whom documents had been seized on 9 October 2001 had entered an injunction before the Supreme Court, Mauritius, for the return of the seized documents. Downer's response to this information is disquieting. On 7 October 2002 Downer wrote to the Mauritian authorities (annexure "LM.8" to McCarthy's draft letter of request) and recorded, inter alia (in addition to the sentence I have quoted above) :
"It is particularly important that the diary (Item No. 1) be retained at all costs".
44. Downer's phrase "at all costs" is an appropriate summation of the State's attitude to the litigation against me. I respectfully believe that the prosecution has not been conducted with the objectivity required of a prosecution and that the State's attitude is to win at all costs. I am able to conceive of no other explanation for the State's conduct in taking and using copies of documents seized in an ex parte search and seizure operation in Mauritius on 9 October 2001. Disconcertingly, the State's conduct in October 2001 was mirrored in their conduct in and pursuant to search and seizure operations against, inter alia, my attorneys and myself in August 2005. In that raid too, the prosecution seized documents from, inter alia, my attorneys' office, and, in the face of a claim for privilege, and in defiance of the provisions of Section 29 (11) of the National Prosecuting Authority Act, No. 32 of 1998, refused to seal the documents and lodge them with the Registrar, but instead blithely proceeded to read the documents. The challenge of my attorney and myself to the ex parte Order obtained by the State was successful in the above Honourable Court (judgment delivered by Hurt, J. in March 2006), and the State was ordered to return all the items seized. I have made the point in other proceedings that, unfortunately, the damage had already been done - the State had already read the documents and were aware of their contents.
45. To make matters worse, the State's founding papers reveal that after "LM.8" (7 October 2002) the Mauritian and South African authorities entered into what can only be described as a sham exchange of correspondence. The Mauritian authorities pointed out to Downer that in the absence of direction or request as to whom the seized documents should be sent in South Africa, the Mauritian authorities considered that the documents and materials seized could not be sent to the South African prosecution authorities. (See the Mauritian authorities' letter dated 17 January 2003, said to be "LM.9" in paragraph 23 of McCarthy's draft letter of request, but unmarked in the papers served on me). Of course, it would have made a nonsense of the contents of "LM.9" for the Mauritian authorities to have recorded that in fact copies of all the documents seized had been made and given to the South African authorities on 10 October 2001. (Downer, "LM.5" at paragraphs 19 to 23) (unless of course this was an improper and off-the-record transaction between Downer and whoever gave him the copies).
46. The South African authorities' response was apparently to request that the original documents should be kept by the Director of the Economic Crime Office, Mauritius or the Commissioner of the Independent Commission Against Corruption in Mauritius, "as appropriate". The originals were to be produced to the South African High Commissioner in Mauritius, for forwarding the NDPP in South Africa, should the NDPP request the CIAC so to produce them. (Downer, "LM.5" at paragraph 29). The State does not see fit to put up a copy of this request referred to in paragraph 29 of Downer's affidavit in these application papers. I request a copy of the document referred to in paragraph 29 of Downer's affidavit as "a supplementary request dated January 2003". I shall be interested to read the document to see if any mention is made of the fact that copies had already been taken by the South African prosecution authorities and used in the investigation against, inter alia, me. I note that McCarthy, in his draft letter of request, describes the "supplementary request" as "unnecessary for present purposes". In the absence of sight of the document concerned, I do not concede McCarthy's assertion.
47. The upshot of the injunction entered in the Supreme Court of Mauritius by, inter alia, Thales was an Order made by a Judge of the Supreme Court of Mauritius in Chambers on 27 March 2003, annexure "LM.17" to McCarthy's draft letter of request. The terms of this Order are relevant and they are reproduced, for the purpose of convenience, below :
"The applicants (i.e. Thales and others) take note of:
(a) the assurance given by the Respondent (the Commissioner of ICAC) that only 13 documents referred to by Mrs. Manna (chief legal adviser), Mauritius, instructed by the senior state attorney (Mauritius) on the 25th of September 2002 including those listed in the affidavit of the Respondent of the 14th October 2002 have been seized and retained by the Respondent ;
(b) the further assurance given by the Respondent earlier in the proceedings that no material or documents (whether in original or in copies) seized as a result of the search made at the premises of Thales and that of its offices and agents in October 2001 or consequent upon the order obtained from the Honourable Judge in Chambers on the 5th of October 2001 will be communicated or sent to the South African authorities ;
(c) the assurance given by the Respondent that there are at present no record of any copies of the returned diskettes and/or other documents seized in furtherance of the said order, save those made and remitted to the applicants in March 2003 ; and
(d) the undertaking of the Respondent from sitting to sitting not to communicate the said documents to the South African authorities.
The applicants and the respondent have agreed that the respondent shall undertake not to communicate any of the material or documents seized, including the 13 aforesaid documents, to any person or authority whether abroad or in Mauritius until and unless a court order in Mauritius authorising such communication is first obtained, with and after notice to the applicants prior to any hearing of the application to communicate any or all of those documents to a person or authority, whether abroad or in Mauritius".
48. I respectfully contend that there is good reason to believe that the contents of the agreement embodied in the Order of the Supreme Court of Mauritius dated 27 March 2003 constitute either a simple deception or demonstrate that Downer obtained the documents in an unlawful manner and unknown to the Mauritian authorities who were then dealing with the matter. If the former, the plain intention was to give the applicants in that case (Thales and others) the assurance that the original documents seized by the Mauritian authorities had been retained by the Mauritian authorities and that no copies had been or would be communicated to any person, including the South African authorities. Downer's affidavit, "LM.5", makes it plain that the assurance is false.
49. I record that I find it extremely difficult to believe that the Mauritian authorities did not communicate with the South African prosecution authorities concerning the contents of the "agreement" concluded between the Mauritian authorities and, inter alia, Thales prior to concluding that agreement or having it embodied in an Order of the Supreme Court of Mauritius. Be this as it may, Downer contends that he first became aware of the terms of the Order on 9 November 2004 when he received a copy of the Order from Shaik's attorney. (Downer, "LM.5", paragraph 38). I respectfully believe that, as Senior Counsel, an Officer of the Court and lead Prosecutor in a criminal trial in which the documents referred to in the Mauritian Court Order dated 27 March 2003 were relevant (and apparently copies put before the High Court in the Shaik trial), Downer's only possible reaction to being apprised of the contents of the Mauritian Court Order would have been surprise and disquiet. At the very least, one would have expected that he would have drawn the contents of the Mauritian Court Order to the High Court in the Shaik trial and addressed the Mauritian authorities immediately concerning the contents of the agreement embodied in the Mauritian Supreme Court Order, with a view to having it recorded in the Mauritian Supreme Court, and communicated to Thales and the other applicants before that Court, that copies of the seized documents had indeed been given to the South African authorities on 10 October 2001 and that those documents had been used in the investigation against me, as well as in the Shaik trial. However, there is no suggestion discernible in the State's founding papers, including Downer's own affidavit, "LM.5", that Downer was alarmed or concerned by the contents of the Mauritian Court Order, or that he took any steps to correct a matter which plainly required to be corrected.
50. In the circumstances set out above, I deny that it would be appropriate or in the interests of justice to issue the letter of request sought by the State in this application.
51. I shall deal briefly below with such of the matters in the State's founding affidavit deposed to by Isak du Plooy with which I am advised it is necessary for me to deal. I am advised that it is not necessary for me to deal with McCarthy's draft letter of request, or the copy of Downer's affidavit put up as annexure "LM.5" thereto. McCarthy's letter of request largely repeats the contents of du Plooy's founding affidavit and many of the matters contained therein are, by their very nature, not within my personal knowledge. I have already canvassed those aspects of Downer's affidavit, "LM.5", which I am advised require to be canvassed.
DU PLOOY'S AFFIDAVIT :
52. AD PARAGRAPH 1 : I do not dispute the allegations in this paragraph.
53. AD PARAGRAPH 2 : I have no knowledge of the extent to which the facts deposed to in du Plooy's affidavit are within his personal knowledge. I dispute many of the allegations. I shall outline the disputes below.
54. AD PARAGRAPHS 3 TO 5 : The initiation, extensions and existence of the alleged investigation :
(a) The State has elected, for reasons unexplained, not to put up any of the supporting documentation on which it may rely for the allegations in these paragraphs. In the circumstances, it is not possible for me to deal properly therewith in this affidavit.
(b) In previous proceedings in which I challenged certain search and seizure warrants issued ex parte against, inter alia, my attorneys of record, the offices of an attorney who had previously acted for me, and myself, I challenged, largely on the basis of the State's own documentation, the lawfulness of the investigations against me, and the various extensions of the alleged investigations. The issues are dealt with more fully in the application papers which served before Hurt, J. when he set aside the search and seizure warrants in which I complained. I believe that Hurt, J. found that it was not necessary to deal with the lawfulness of the investigations against me as there were other grounds on which the search and seizure warrants fell to be set aside.
(c) In this case, the State has endeavoured to side step the issues and my challenge concerning the lawfulness of the investigations, and the various extensions thereof, by the simple stratagem of not putting up any documents on which it relies. I repeat the challenges I raised in the application which served before Hurt, J. I dispute the lawfulness of the investigations against me and the extensions thereof. To the extent necessary I shall ensure that the papers before Hurt, J. are made available to the Court hearing this application in order that this aspect of the matter may be argued.
55. AD PARAGRAPH 6 :
(a) Again, du Plooy fails to put up any documents to substantiate the allegations which he makes in this paragraph.
(b) In particular, du Plooy does not put up his designation, nor does he provide any detail of when, where, by whom, or how he was allegedly authorised to depose to the affidavit or launch the application on behalf of the State.
(c) I am advised and respectfully believe that this is not a mere technical matter of form. The investigations on which the State rely are investigations under Section 28 of the National Prosecuting Authority Act, No. 32 of 1998. Their investigatory powers under Section 28 are public powers of a seriously invasive nature. I am advised and respectfully believe that the State is enjoined to act within the limits of their powers under the National Prosecuting Authority Act, and if they purport to act outside the limits of those powers, they act unlawfully and unconstitutionally.
(d) In contenting themselves with bald and unsubstantiated allegations concerning the designation of a person to conduct an investigation under Section 28 of the National Prosecuting Authority Act, and his alleged authority to depose to an affidavit and launch an application in terms of Section 2 (2) of the ICCM Act, I respectfully believe that the State has failed to bring itself properly before the Court and to make out a proper case for the relief sought by the State. I am advised that this is a matter properly to be dealt with in argument.
56. AD PARAGRAPHS 7 AND 8 : I note the allegations in these paragraphs.
57. AD PARAGRAPH 9 :I have no knowledge of the allegations in this paragraph. I do not dispute the allegations.
58. AD PARAGRAPH 10 :
(a) I am not sure that the events in this paragraph are recorded in their strict chronological sequence, but I am advised that for present purposes it is not necessary to dispute the allegations in this paragraph.
(b) I was naturally present in Court for the duration of argument in the State's application for a postponement before Msimang, J. in September 2006 when Downer, arguing the matter on behalf of the State in reply, informed the Court that the State from the outset never intended to proceed on the indictment served on me in November 2005. If the State disputes that the Court was so informed I shall call for a copy of the transcript of the argument.
(c) I respectfully contend that bringing the criminal matter before the High Court on an indictment on which the State never intended to proceed is, at best for the State, an abuse of the process of the Court. It is also a discourtesy to the Court, given that in early November 2005 the prosecution and my legal representatives arranged in the Chambers of the Judge President that the matter would commence on 31 July 2006 and run to completion. 59. AD PARAGRAPHS 11 TO 16 (INCLUSIVE) : I do not have personal knowledge of all of the allegations in these paragraphs. I do not dispute the allegations. In respect of paragraph 16, I point out that the permanent stay application is still pending - it has not been resolved and it relates to the mirror charges to those preferred against Shaik and generally to what has been termed a generally corrupt relationship between Shaik and myself.
60. AD PARAGRAPH 17:
(a) I dispute, for the reasons set out above, the contention that there are presently no criminal proceedings pending against me. I also refer to the previous paragraph.
(b) I have already dealt with my denial of the lawfulness of the investigation against me, and the various extensions thereof. I dispute that there is a lawful investigation against me in terms of Section 28 of the National Prosecuting Authority Act, No. 32 of 1998. The State has never alleged that there was any other form of investigation against me, and the State does not do so in these proceedings.
(c) I dispute that the judgment in Shaik's case, whether in the trial Court, or on appeal, has any bearing on my guilt on the charges which the State preferred against me under the indictment which they served on me but which they disavow ever having intended to prosecute. I respectfully again draw to the attention of this Honourable Court that, for reasons known only to the State, I was not a co-accused with Shaik. Moreover, the elements of the offences with which Shaik was charged and convicted, differ to the elements of the offences which the State will be required to prove against me.
(d) Save as aforesaid, I have no knowledge of the allegations in paragraph 17.
61. AD PARAGRAPH 18 : I note the allegations in this paragraph.
62. AD PARAGRAPH 19 :
(a) I have already dealt with the issue of whether or not there are criminal proceedings pending against me.
(b) I have also dealt above with whether or not it is permissible or appropriate for the State to apply under Section 2 (2) for the issue of a letter of request. I respectfully believe that it is neither permissible nor appropriate, given the circumstances to which I have referred above.
(c) I point out that the State unequivocally stated in the application for an adjournment that there were 3 main factors which prevented its readiness to commence the trial:
(i) The completion of the KPMG report.
(ii) The Issue of the legality of the seizure of certain documents which were on appeal to the SCA.
(iii) The pending Shaik judgment in the SCA.
The issue as to the Mauritian documents in respect of which the originals were to be sought was also raised.
In its reply the State abandoned all these as factors of further delay as the KPMG report was to be ready soon and in argument it was produced in Court. Whilst the achievement of (ii) and (iii) would greatly assist in effectively deciding what may also be in issue in the trial, it could proceed without it. A new indictment incorporating the new KPMG report would be served before a proposed deadline (in October or early November) and then it was simply up to the Defence as to when they would be ready. The State did not take issue in its papers with the contention that the Mauritius process now sought to be initiated would take a number of years to complete. It is obvious that the documents now in issue, was clearly not necessary to complete the investigation.
63. AD PARAGRAPH 20 : I note the allegations in this paragraph. I am advised and respectfully believe that, in the circumstances outlined above, it would have been necessary in law, regardless of any undertakings given by the State to the parties, to have given me notice of this application.
64. AD PARAGRAPH 21 : I note the allegations in this paragraph. As I have stated above, agreement was reached between the State and my legal representatives that this affidavit would be delivered by 9 February 2007 and the matter will thereafter take its course.
65. AD THE FIRST OF THE PARAGRAPHS NUMBERED 22 : I note the allegations in this paragraph.
66. AD THE SECOND OF THE PARAGRAPHS NUMBERED 22 :
(a) It is correct that my legal representatives informed the State that the State should expect no concessions concerning the admissibility of items or of documents obtained from Mauritius.
(b) Save as aforesaid, I have no knowledge of the allegations in this paragraph. Matters of law concerning the admissibility of documentary evidence will be dealt with in argument, to the extent necessary.
(c) I do point out, however, that the State proceeded to trial in that matter where mirror charges were involved, without a request such as the present. It could not have been sure if the concession was going to be made or not. The point is self-evident. If the documents were needed they were needed for trial not investigation purposes. This much is conceded in para 22.8
67. AD PARAGRAPH 23.1 :
(a) I am advised and respectfully believe that, even if the State were able to prove by way of admissible evidence against me (which I deny), all of the factual allegations in paragraph 23.1, that would still not constitute even prima facie evidence against me in a criminal trial. To the extent necessary, this aspect of the matter will be dealt with in argument.
(b) In the circumstances, I deny that the State has established in this application that there are reasonable grounds for believing that I have committed an offence in the Republic. I further deny, for the reasons I have already set out above under the heading "THE JURISDICTIONAL PRE-REQUISITES OF SECTION 2 (2) OF THE ICCM ACT" that the original documents sought by the State will provide the State with any information that will be of any use to the State in determining whether or not I have committed an offence.
(c) In the circumstances, I deny, quite apart from the State's failure to establish the other jurisdictional prerequisites of Section 2 (2) of the ICCM Act (to which I have referred above), that the State has established the further facts which the State is required to establish under Section 2 (2) (a) of the ICCM Act.
68. AD PARAGRAPH 23.2 :
(a) I have already dealt with the issue of the lawfulness of the investigation against me. It is not necessary for me to repeat what I have said in that regard.
(b) I deny that the State has established, as it is required to do under Section 2 (2) (b) that a lawful investigation is being conducted against me. I therefore deny that the State is entitled to any relief under Section 2 (2) of the ICCM Act.
(c) Further if there was an investigation, it has most certainly been completed. The State cannot play musical chairs by its choice as to when to bring/resume charges. I specifically challenge the State to positively state whether a decision to proceed against me has been made and if not, when it will be made. I am entitled to know this. If the decision is not to proceed this application is academic and has no practical effect.
69. AD PARAGRAPH 23.3 :
(a) I repeat my respectful contention, set out above, that this application has nothing to do with the obtaining of information. The State appears to recognise in paragraph 23.3 of du Plooy's affidavit that this is a difficulty in the State's path. This aspect of the matter will be dealt with in argument.
(b) Moreover, I dispute for the reasons with which I have already dealt above, that it would be in the interests of justice for this Court to come to the assistance of the State in this matter.
(c) Insofar as paragraph 23.3 deals with the admissibility of documentary evidence, this is a matter of law which will be dealt with in argument.
(d) Save as aforesaid, I deny the allegations in paragraph 23.3.
70. AD PARAGRAPH 24 :
(a) While it is heartening that the State has finally recognised its duty to "ensure that all outstanding investigation is finalised as soon as reasonably possible", the recognition is a belated one.
(b) I have already made an application for a permanent stay of the prosecution against me, which application was based on the facts known to me as at July 2006. My application for a permanent stay was not argued or dealt with because it was not necessary to do so in the light of the fact that the State's application for a postponement failed. If and when the State decides to resume the prosecution against me, I reserve the right to enrol that application suitably updated.
(c) Save as aforesaid, I note the allegations in paragraph 24.
71. AD PARAGRAPH 25 : I note the allegations in this paragraph. The expectation of opposition is at this stage, well justified.
72. AD PARAGRAPH 26 :
(a) While I do not deny the allegations in this paragraph, I respectfully draw to the attention of this Honourable Court that the State is the author of its own misfortune in this regard. It has dragged its feet for a considerable period of time only to proclaim suddenly on 29 November 2006 (the date of du Plooy's affidavit) that it is now necessary to "expedite the process by any means possible".
(b) It is noteworthy that the documents which the State seeks to obtain were seized on 9 October 2001, some 5½ years ago. The delay in seeking their production by judicial process is entirely unexplained. I respectfully believe that the delay is only explicable by reference to the fact that the State had unlawfully taken possession of copies of the documents on 10 October 2001 and that the State has accordingly had the benefit of the use of all the information contained in the documents since that date. It is quite apparent that it is only since the State has paid any attention to its duty to place admissible evidence before a Court of law in a criminal trial against me, that the State has shown even the slightest interest in procuring the original documents which it now seeks as a matter of urgency.
73. AD PARAGRAPH 27 :
(a) I do not know what the State means in its reference to the "extra-curial approach suggested in the judgment of Combrinck, J".
(b) I am advised and respectfully believe that I am under no duty to assist the State in its prosecution against me. The State must do whatever is necessary to ensure that any prosecution against me is conducted lawfully.
74. AD PARAGRAPH 28 :
(a) The allegations in the first sentence of this paragraph are matters of law which I do not concede and which will be dealt with during the course of argument, to the extent necessary.
(b) Save as aforesaid, I note the allegations in paragraph 28.
75. AD PARAGRAPH 29 : I deny the allegations in this paragraph, for the reasons set out above.
WHEREFORE I humbly request that this Court dismiss the State's application with costs, including the costs consequent upon the employment of two Counsel.
I CERTIFY THAT the Deponent has acknowledged that he knows and understands the contents of this Affidavit which was signed and sworn to before me at on this day of 2000 under compliance with the Regulations contained in Government Notice No. R.1258 dated 21 July 1972 (as amended).
.......................................... COMMISSIONER OF OATHS.
FULL NAME :