THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No:   810/2011
Reportable

In the matter between:

TULIP DIAMONDS FZE                                                                           APPELLANT

and

MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT                                  FIRST RESPONDENT

MENZI SIMELANE NO                                                       SECOND RESPONDENT

STEVEN HOLZEN NO                                                             THIRD RESPONDENT

DIRECTOR-GENERAL: DEPARTMENT
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT                                                                   FOURTH RESPONDENT

BRINKS (SOUTHERN AFRICA)
(PROPRIETARY) LIMITED                                                    FIFTH RESPONDENT

Neutral citation:
Tulip Diamonds Fze v Minister of Justice and Constitutional
Development (810/2011) [2012] ZASCA 111 (7 September 2012)

Coram:
Mthiyane DP, Brand, Cachalia, Leach and Wallis JJA

Heard:
15 August 2012
Delivered:
7 September 2012

Summary:

Standing ─ International Co-operation in Criminal Matters
Act 75 of 1996 ─ request by Belgian examining magistrate for assistance of South
African authorities to obtain documents ─ foreign based company claiming
confidential information in documents in possession of local company ─ appellant
seeking to challenge decision by South African authorities to provide assistance and
issue of subpoena to South African company to produce documents ─ failure to
establish that information in documents confidential ─ failure to show that it has
substantial interest in the subject matter of the litigation.

_____________________________________________________________________

ORDER

On appeal from: South Gauteng High Court, Johannesburg (CJ Claassen
J and Jordaan AJ sitting as court of first instance):

The following order is made:
The appeal is dismissed with costs, including the costs of two counsel.
___________________________________________________________

JUDGMENT

MTHIYANE DP (BRAND, CACHALIA, LEACH AND WALLIS
JJA CONCURRING)

[1] This is an appeal against an order of the South Gauteng High Court
(CJ Claassen J with Jordaan AJ concurring) dismissing an application by
the appellant, Tulip Diamonds Fze, a foreign company which carries on
business in Dubai, to set aside certain decisions of the first, second and
third respondents made in terms of the provisions of the International Co-
operation in Criminal Matters Act 75 of 1996 (the Act). The second
respondent, then the Director General: Department of Justice and
Constitutional Development, had considered a request for assistance from
the Belgian authorities to search and seize from the fifth respondent, a
company in South Africa, Brinks Southern Africa, certain documents
which the Belgian authorities required in connection with a criminal
investigation they were conducting against Omega Diamonds (Omega), a
Belgian company and a citizen of that country, Sylvain Goldberg. In the
course of a search and seizure operation at the offices of Omega, the

Belgian authorities had found nine invoices issued by Brinks, showing
that Brinks had transported diamond shipments between Angola and the
appellant in Dubai. The South African authorities were requested to
inspect, seize and make copies of all relevant documents relating to
similar shipments both to the appellant, as well as a number of other
entities, including invoices, Kimberley Certificates, packing lists,
shipment documents, insurance policies and the like found in Brinks’
possession. They were also requested to interview the responsible person
at Brinks with regard to the invoices and their relationship with Omega.

[2] The Director-General and thereafter the first respondent, the
Minister of Justice and Constitutional Development (the Minister),
acceded to the above request. The third respondent (the Magistrate) to
whom the matter was referred, issued a subpoena requiring Brinks to
produce the required documents and information. Brinks was willing to
comply with the subpoena.

[3] On appeal the appellant contends, as it did in the court below, that
the surrender of the required documents by Brinks or their disclosure
would violate its right to confidentiality in respect of the information
contained in those documents. The question then arose as to whether the
appellant had the necessary legal standing (locus standi) in the subject
matter of the relief claimed, in what was on the face of it a matter
between the respondents and Brinks, at the instance of the Belgian
authorities. The appellant claimed that it had a substantial interest in the
subject matter of the litigation based on its alleged right to confidentiality
in the documents in the hands of Brinks. It argued that although it was a
peregrinus, where its right to confidentiality was threatened in South
Africa by South African state organs, albeit at the instance of a foreign

state, it had standing before a South African court to assert and protect
that right.

[4] The high court rejected the above contention on the basis that the
appellant was a foreign company which had no presence in this country.
It held that the appellant had no standing in the courts of this country ‘to
invoke the protection and benefits of any enshrined constitutional right,
such as fair administrative action’. The court also rejected the appellant’s
submissions on the merits, in which it included its claim to
confidentiality. I shall return to the merits later in this judgment. It
suffices at this stage to record that the application was dismissed with
costs and the appellant was granted leave by the high court to appeal to
this court. Brinks who was cited as a respondent did not appear in the
appeal and abides the decision of the court.

[5] The appeal raises two issues. The first is whether the appellant has
standing to attack the validity of the decisions of the respondents to
accede to a request from the Belgian authorities on the basis of its right to
confidentiality in the documentation requested being threatened. The
second is whether the decisions of the Minister and the Director-General
to accede to the letter of request and the subsequent decision of the
Magistrate to issue a subpoena, should be reviewed and set aside. The
review was sought on six separate grounds. They were (a) the validity of
the Magistrate’s appointment; (b) the invocation by the Magistrate of s
205 of the Criminal Procedure Act 51 of 1977 instead of ss 7 and 8 of the
Act; (c) non-compliance with the jurisdictional requirement that the
Director-General had to satisfy himself as to the commission of the
offence by Omega; (d) the failure by the Director-General to take into
account relevant considerations; (e) non-observance of procedural

fairness, in that the appellant was not afforded an opportunity to be heard
before decisions were taken and the subpoena issued by the Magistrate;
and (f) the over-breadth of the letter of request, in that it required the
South African officials to do more than is permitted by ss 7 and 8 of the
Act.

[6] Before turning to the issue of standing, it is necessary to set out the
relevant statutory provisions of the Act. Section 7 provides as follows:
‘(1)
A request by a court or tribunal exercising jurisdiction in a foreign State or by
an appropriate government body in a foreign State, for assistance in obtaining
evidence in the Republic for use in such foreign State shall be submitted to the
Director-General.
(2)
Upon receipt of such request the Director-General shall satisfy himself or
herself-
(a)
that proceedings have been instituted in a court or tribunal exercising
jurisdiction in the requesting State; or
(b)
that there are reasonable grounds for believing that an offence has been
committed in the requesting State or that it is necessary to determine whether an
offence has been so committed and that an investigation in respect thereof is being
conducted in the requesting State.
(3)
For purposes of subsection (2) the Director-General may rely on a certificate
purported to be issued by a competent authority in the State concerned, stating the
facts contemplated in paragraph (a) or (b) of the said subsection.
(4)
The Director-General shall, if satisfied as contemplated in subsection (2),
submit the request for assistance in obtaining evidence to the Minister for his or her
approval.
(5)
Upon being notified of the Minister’s approval the Director-General shall
forward the request contemplated in subsection (1) to the magistrate within whose
area of jurisdiction the witness resides.’

[7] The examination of witnesses by a magistrate is provided for in s 8.
It reads as follows:

‘(1)
The magistrate to whom a request has been forwarded in terms of section 7(5)
shall cause the person whose evidence is required, to be subpoenaed to appear before
him or her to give evidence or to produce any book, document or object and upon the
appearance of such person the magistrate shall administer an oath to or accept an
affirmation from him or her, and take the evidence of such person upon
interrogatories or otherwise as requested, as if the said person was a witness in a
magistrate’s court in proceedings similar to those in connection with which his or her
evidence is required: Provided that a person who from lack of knowledge arising from
youth, defective education or other cause, is found to be unable to understand the
nature and import of the oath or the affirmation, may be admitted to give evidence in
the proceedings without taking the oath or making the affirmation: Provided further
that such person shall, in lieu of the oath or affirmation, be admonished by the
magistrate to speak the truth, the whole truth and nothing but the truth.

(2)
A person referred to in subsection (1) shall be subpoenaed in the same manner
as a person who is subpoenaed to appear as a witness in proceedings in a magistrate’s
court.

(3)
Upon completion of the examination of the witness the magistrate taking the
evidence shall transmit to the Director-General the record of the evidence certified by
him or her to be correct, together with a certificate showing the amount of expenses
and costs incurred in connection with the examination of the witness.

(4)
If the services of an interpreter were used at the examination of the witness,
the interpreter shall certify that he or she has translated truthfully and to the best of his
or her ability, and such certificate shall accompany the documents transmitted by the
magistrate to the Director-General.’

[8] The request for assistance from the Belgian authorities was
contained in a letter from the ‘Office of Examining Magistrate B De
Hous, Antwerp’ dated 23 December 2008 addressed to the Minister and
the Director-General. In the letter, assistance was requested from South
African authorities to gather information which might assist in the

conduct of a criminal enquiry against Omega and Goldberg. The enquiry
related to the allegations of forgery and use of false documents, tax fraud
and violations of the Belgian Codes dealing with income tax and money-
laundering. The provisions of the Belgian code under which the above
offences were punishable were also quoted in the letter.

[9] The letter recorded how Omega and Goldberg were implicated in
the alleged criminal activities. It stated that Omega imported diamonds
from Angola and Congo through an associated company in Dubai into
Belgium. Omega ordered the shipment of diamonds purchased in Angola
and Congo in accordance with the legally required Kimberley
Certificates, for delivery to the appellant (or other entities not relevant for
this case) located in Dubai. The diamonds were packed in small parcels.
Upon arrival in Dubai the small parcels were retained but repacked into
larger parcels, containing diamonds from both Angola and Congo,
without physically mixing the stones. Thereafter the new shipment of
diamonds was provided with a new Kimberley Certificate indicating that
the shipment emanated from the United Arab Emirates and marked
‘diamonds of mixed origin’. The new shipment was issued with a new
invoice made out by the appellant and addressed to Omega wherein the
value of the diamonds was increased by between 20 and 31 per cent. In so
doing it was said that the value of the diamonds was artificially increased,
generating profits which were kept secret from the Belgian tax
authorities.

[10] The letter alluded to the fact that when a search and seizure
operation was conducted at the premises of Omega in Belgium, exhibits
and documents including nine invoices on which the names of Brinks and
the appellant appeared, were found.

[11] The letter requested the South African authorities to assist in the
identification of Brinks in South Africa and to inspect the documents in
Brinks’ possession in order to compare and investigate the nine invoices,
to search and establish whether there were similar consignments from
Angola and Congo to Dubai, and to search and investigate all invoices
and diamond consignments to associated companies in Dubai. Although
mention was made of the appellant, the letter of request made it clear that
the Belgian authorities did not regard either Brinks or the appellant as in
any way implicated in the criminal activities alleged against Omega and
Goldberg.

[12] Upon receipt of the request the Director-General considered it and
recommended that it be acceded to by the Minister as envisaged in s 7(4)
of the Act. The request was in due course approved by the Minister. Upon
being notified of the approval the Director-General forwarded the request
to the Magistrate in terms of s 7(5) for the implementation of the request
by way of the issue of a subpoena as set out in s 8 of the Act. The
subpoena was duly issued and served on Brinks.

[13] Turning to the question of standing, a person wishing to institute or
defend legal proceedings must have a direct and substantial interest in the
right which is the subject matter of the litigation (Jacobs & ‘n ander v
Waks & andere 1992 (1) SA 521 (A) at 534A-E). Legal standing
concerns the ‘sufficiency and directness of a litigant’s interest in
proceedings which warrants his or her title to prosecute the claim
asserted’ (Sandton Civic Precinct (Pty) Ltd v City of JHB & another 2009
(1) SA 317 (SCA) para 19 per Cameron JA). That in sum is the nature of
the interest the appellant was required to show in order to demonstrate its
entitlement to come to court seeking the relief it sought in this case.

[14] The high court held that the appellant was non-suited to challenge
the decisions of the Minister, the Director-General and the Magistrate.
Regrettably the court based its conclusion on a faulty premise. It held that
the appellant was non-suited because it was a foreign company which had
no presence in this country and relied for its conclusion on the decisions
in Lawyers for Human Rights & another v Minister of Home Affairs &
another 2004 (4) SA 125 (CC) and Kaunda & others v President of the
Republic of South Africa & others 2005 (4) SA 235 (CC) para 36. The
court’s reliance on these cases was misplaced. Counsel for the appellant
argued, correctly in my view, that these cases do not deal with standing,
but rather with the definition of the class of beneficiaries of the rights in
the Bill of Rights. I do not think that the rulings in these cases constitute a
bar to a foreign litigant who has a protectable interest in this country,
seeking to protect that interest before a South African court. The
appellant in this case sought to protect allegedly confidential information
from compelled disclosure in the jurisdiction where the third party,
namely Brinks, who holds it happens to be and where the compulsion is
sought. According to the appellant the subpoena to compel Brinks will
lead to the release of information about itself in breach of obligations of
confidentiality Brinks owes towards it. The appellant sought to prevent
this outcome by seeking relief against the South African state organs who
will exercise this coercive power.

[15] The appellant’s major difficulty lies in whether it proved the
confidentiality to which it laid claim in relation to the documents in
Brinks’ possession. Although, as I have indicated, the high court dealt
with this issue in its consideration of the merits, it ought properly to have
been considered as an issue pertaining to standing. The assertion of
confidentiality by the appellant in this case is unsubstantiated and

amounts to no more than a bald claim to confidentiality. The appellant
failed to indicate which documents contained confidential information,
the nature of such information and the legal basis on which it asserted
such right to confidentiality. One needs only have regard to the
documents referred to in the founding affidavit to see that they are by
their nature not confidential. They include shippers’ letters of instruction,
shippers’ invoices to consignees, various SARS and customs documents,
as well as airline waybills.

[16] It has not been shown that Brinks had a contractual obligation to
preserve confidentiality in these documents and their contents. On the
contrary, Brinks was quite prepared to surrender the documents to the
South African authorities. Although Brinks deposed to an affidavit in
other related proceedings stating that it ‘accepts that the information and
documentation it receives from its customers are of a confidential nature
and, subject to valid legal process requiring the contrary, it treats it as
such’ this does not provide proof that the documents in issue in this case
are of a confidential nature. Brinks’ ipse dixit does not assist. I am not
aware of any general duty of confidentiality in law between a principal
and a courier or a consignor and a consignee and no evidence in that
regard has been adduced in the present matter.

[17] Despite the weaknesses in the appellant’s case on the question of
confidentiality, counsel pressed on and submitted that the appellant’s
standing had been admitted by the respondents. That, submitted counsel,
rendered it unnecessary to provide any further proof in regard to
confidentiality.

[18] The above point however flounders when tested against the
respondents’ deposition in the answering affidavit. The respondents
denied that the documents are ‘relevant to the [appellant’s] proprietary
rights and that disclosure to the Belgian authorities would infringe the
[appellant’s rights]’. Confidentiality, which was the proprietary right the
appellant sought to protect, was placed in issue by way of an express and
repeated denial that the documents or their contents were confidential. All
that was accepted was that if confidentiality had been shown there would
be standing in respect of those confidential documents.

[19] In light of the view taken in relation to the question of standing it is
unnecessary to deal with the merits. In the result the appeal is dismissed
with costs, including the costs of two counsel.

____________________

K K MTHIYANE

DEPUTY PRESIDENT

APPEARANCES

For Appellant:

GJ Marcus SC (with him A Stein)
Instructed by:
Edward
Nathan
Sonnenberg
Inc,
Johannesburg
McIntyre & van der Post, Bloemfontein

For 1st to 4th Respondents:
AP Laka SC (with him M Sello)
Instructed by:
The State Attorney, Pretoria
The State Attorney, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL

FROM
The Registrar, Supreme Court of Appeal

DATE
7 September 2012

STATUS
Immediate

Please note that the media summary is for the benefit of the media and does not form
part of the judgment.

TULIP DIAMONDS FZE v MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPLMENT
&
OTHERS
(810/2011)
[2012] ZASCA
(7
SEPTEMBER 2012)

Media Statement

[1] The SCA today dismissed an appeal by Tulip Diamonds Fze, a foreign
company which carries on business in Dubai, United Arab Emirates. It had
instituted an application for an interdict in the South Gauteng High Court,
which was presided over by CJ Claassen J and Jordaan AJ, seeking an order
that the Director-General and the Minister of Justice and Constitutional
Development and the Magistrate, Kempton Park, should have acceded to a
request from the Belgian authorities in terms of the provisions of the
International Co-operation in Criminal Matters. Section 7 and 8 of that Act
permits the South African authorities to consider a request from foreign state
to provide assistance in criminal matters. In this case the Belgian authorities
had reason to believe that the Belgian company, Omega Diamonds and a
Belgian citizen, Sylvain Goldberg, had allegedly violated certain provisions of
the Belgian Codes dealing with income tax and money laundering. During a

search at the offices of Omega Diamonds they discovered nine invoices and
documents reflecting the name of a South African courier company, Brinks
South Africa. In these invoices issued by Brinks, the names of Omega
Diamonds and Tulip Diamonds Fze appeared. The Belgian authorities
requested the South African authorities to assist in the identification of Brinks
in South Africa and to inspect the documents in Brinks’ possession in order to
compare and investigate the nine invoices, to search and establish whether
these related to consignments of diamonds from Angola and Congo to Dubai,
which they considered relevant to the investigation of a contravention of the
provisions of the Belgian Codes by Omega Diamonds. The South African
authorities acceded to the request. Tulip Diamonds Fze claimed that the
documents in Brinks’ possession contained information relating to it (Tulip)
which was confidential, and that it could not be disclosed without violating it
(Tulip’s) right to confidentiality.

[2] The SCA held that although a foreign company such as Tulip was
entitled to bring an application for an interdict to protect its interest in the
courts of this country, it had in this case, failed to establish that the documents
in question were confidential. For that reason it that Tulip Diamonds Fze did
not have the legal standing to challenge the decision of the Director-General,
the Minister of Justice and Constitutional Development and the Magistrate, to
accede to the request for assistance from the Belgian authorities.

[3] Accordingly the appeal was dismissed with costs, including the costs of
two counsel.

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