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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

(1)           REPORTABLE: YES

(2)           OF INTEREST TO OTHER JUDGES: YES

(3)           REVISED.

 

                                                                                                   Case No: 27672/2008

 

 

In the interlocutory application between:

 

RANDGOLD AND EXPLORATION COMPANY LIMITED               First applicant

 

AFRICAN STRATEGIC INVESTMENT (HOLDINGS)

LIMITED (FORMERLY KNOWN AS RANDGOLD

RESOURCES (HOLDINGS) LIMITED                                                  Second applicant

 

and

 

GOLD FIELDS OPERATIONS LIMITED                                            First respondent

 

JOHANNES FREDERICK KLOPPER N.O.

RAINOTES BANTUBONKE NDUNA N.O.

ANNA FRANCINA RAMALHO N.O.                                                 Second respondent

 

JCI LIMITED                                                                                         Third respondent

 

NORMAN JOHN OSBOURNE N.O.                                                    Fourth respondent

 

JOHN CHRIS LAMPRECHT                                                              Fifth respondent

 

THE DIRECTOR-GENERAL OF THE DEPARTMENT

OF INTERNATIONAL RELATIONS AND CO-OPERATION

OF THE REPUBLIC OF SOUTH AFRICA                                           Sixth respondent

 

In re:

 

RANDGOLD AND EXPLORATION COMPANY LIMITED              First plaintiff

 

AFRICAN STRATEGIC INVESTMENT (HOLDINGS)

LIMITED (FORMERLY KNOWN AS RANDGOLD

RESOURCES (HOLDINGS) LIMITED                                                 Second plaintiff

 

and

 

GOLD FIELDS OPERATIONS LIMITED                                             Defendant

 

JOHANNES FREDERICK KLOPPER N.O.

RAINOTES BANTUBONKE NDUNA N.O.

ANNA FRANCINA RAMALHO N.O.                                                     First third party

 

JCI LIMITED                                                                                             Second third party

 

NORMAN JOHN OSBOURNE N.O.                                                        Third third party

 

JOHN CHRIS LAMPRECHT                                                                   Fourth third party

 

RANDGOLD & EXPLORATION COMPANY LIMITED                   Fifth third party

 

Summary - Whether a South African court can invoke the assistance and tools of compulsion of courts in foreign jurisdictions to compel witnesses to testify abroad and to provide documents in a matter in a South African Court – such testimony to be given abroad and to be relayed to the South African court via video-link – Court distinguishing between compelled and voluntarily given evidence received via video-link – compulsion based requests not being competent within any of the four foreign jurisdictions in which applicant sought to have relief granted - alternative remedy available is the commission de bene esse which applicants eschewed due to unsubstantiated costs considerations – subsidiarity principle would be breached – no enabling legislation or authority for process urged by applicants – South African court cannot extend reciprocity to courts requested – South African court should not make representations of law or fact contained in Letters of Request, particularly when untested and at an early stage in the proceedings.

 

JUDGMENT

 

 

INGRID OPPERMAN J

Introduction

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

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

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

 

Nature of the relief

[4]          The application is to secure an order authorising the issue by this Court of the Letters of Request,[2] being Annexures “A” to “I” attached to the Notice of Motion (“The Letters of Request”), which requests are directed at obtaining (from the identified foreign witnesses) the relevant evidence identified therein, through the medium of video-link, which Letters of Request are to be made to the following foreign authorities in respect of the following identified foreign witnesses:

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

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

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

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

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

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

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

4.2.6.    Pershing Securities Limited United Kingdom (previously known as Pershing Keen Nominees, Royal Liver Building Pier head, Liverpool, Merseyside, L3 1LL, United Kingdom (“Pershing Securities”);

4.3.        the Competent Judicial Authority of New Jersey regarding the evidence to be taken from Pershing LLC, One Pershing Plaza, Jersey City, NJ 07399, USA (“Pershing New Jersey);

4.4.       the Competent Judicial Authority of Australia regarding the evidence to be taken from Mr. Milton Samios, a banker and the Chief Executive Officer of Investec Bank Australia, Level 23, The Chifley Tower, 2 Chifley Square New South Wales, 2000, Australia (“Mr. Samios);

The application seeks to secure an order authorizing the applicants’ attorneys of record and their duly appointed foreign correspondents to take the requisite steps and do all things necessary to procure the implementation and execution of the Letter of Request (“A” to “I”).

[5]          The application is further to secure an order directing:

5.1.       the examination of the identified foreign witnesses (subject to the issuing of the Letters of Request forming part of the application), whereby their evidence will be received by this Court (at the time of it sitting as the trial Court), through the medium of video-link, such that the identified foreign witnesses will furnish their evidence through that medium in real-time;

5.2.       that such evidence is to be taken through the medium of video-link, from the overseas venue directed by the relevant Foreign Judicial Authority (“foreign authority” or “foreign authorities”), in the respective foreign jurisdictions, as prayed for in the relevant Letters of Request, the attendance of which witnesses at the venues in question, is to be secured by way of subpoena issued by the relevant foreign authorities;

5.3.       that production of documents in the possession or under the control of the identified foreign witnesses as listed in the relevant Letters of Request, such to occur prior to the commencement of the trial through the assistance of the respective foreign authorities, which will be requested to direct the identified foreign witnesses to produce the documents listed in the respective Schedules of their respective Letters of Request.

[6]          An order is sought, in so far as is necessary, authorising the applicants to approach this Court on the papers filed of record, duly supplemented, for the grant to them of such additional directives as may be required to give effect to the relief outlined above, including directives relating to securing the assistance of the sixth respondent to the extent that her assistance is required.

[7]          Finally an order is sought directing that pending the final determination of the costs in the trial action, the costs of implementing and executing the Letters of Request (“A” to “I”), and the costs incurred in giving effect thereto, are to be borne by the applicants, jointly and severally, the one paying the other to be absolved.

[8]           It is immediately apparent from the relief sought that the witnesses who will testify will only do so under subpoena. That being so, the question which falls for consideration is whether the foreign jurisdictions permit of such a procedure.

General overview of the nature of the evidence which is required to be led by the foreign witnesses

[9]          The applicants’ case is that the second third party (‘JCI ’) and first respondent, through their respective directing and controlling wills and minds (the actions and conduct of which falls to be attributed to them), stole 11 360 000 Randgold Resources Limited (‘RRL’) shares, being the property of the second applicant, alternatively, the first applicant. The total monetary value of the said claims, is alleged to range from R40,69 billion to R1,415 billion, exclusive of interest and dividends.

[10]       In order to demonstrate the theft of the said shares, it will (amongst other things), be required of the applicants, so they contend, to establish at the trial of the action, that the said shares were removed from their control.

[11]       This will necessitate the applicants showing the manner in which the said shares were dealt with until they were irretrievably lost to them by virtue of their sale or unauthorised use.

[12]       The applicants will be required to demonstrate that the proceeds or monies derived from the sale and unauthorised use of the RRL shares were deployed so as to, inter alia, benefit the first respondent and that the first respondent derived benefit from the disposal and unauthorised use of the shares which are alleged to form the subject matter of the thefts foundational to claims 1 to 4.

[13]       In sum, the applicants assert that without being able to establish that connection (i.e. the RRL shares stolen and the moneys derived from the sale and unauthorised use thereof), the applicants will run the risk of not being able to implicate the first respondent in the thefts foundational to its cause of action and hence the importance of the foreign witnesses whose evidence is, amongst other purposes, necessary to establish the connection, which will largely be achieved by the foreign witnesses testifying to documents which reflect the movement of the shares in question after being dispatched from South Africa and up until the time that they became irretrievably lost to the applicants.

 

Grounds relied upon by first respondent in opposition to the relief claimed by the applicants

[14]       First respondent raised several grounds of objection in opposing the grant of the relief sought.

[15]        The first is based on the contention that the relief sought is not competent, that the grant thereof would infringe upon various constitutionally entrenched rights which have been accorded protection under the Constitution of the Republic of South Africa (“the Constitution”), as read with section 32 of the Superior Courts Act, No. 10 of 2013 (“the Superior Courts Act”).  The basket of rights which would be undermined includes the right to: enjoy the physical presence of the witness before the Judge and the parties in the court room; observe and scrutinise the behaviour of the witness against the evidence led by that witness in an open Court to which the public enjoys access; subject a witness to rigorous cross-examination, which encompasses face-to-face and immediate engagement and assessment; which will, in the event of effect not being given thereto result in a fair and public trial not being capable of attainment.

[16]        The second ground is that the order which the Court has been requested to grant falls beyond the competence of this Court. The first respondent in this respect asserts that South African Judges are not clothed with the requisite competence to grant this type of relief in the absence of enabling legislation, which relief, if granted in these circumstances, would be akin to the Court making policy decisions relating to matters such as the allocation of resources, budgetary constraints and matters of practical significance. The first respondent asserts that a South African Court is not at liberty to formulate questions of policy in the absence of legislative sanction.

[17]       The third ground is based on the provisions of the South African Foreign Courts Evidence Act, No.80 of 1962 (“the SA Foreign Courts Act”), read with the Protection of Business Act 99 of 1978 (“the PBA”) and section 40(1) of the Superior Courts Act, which provisions, so it is contended, prohibit the Court from extending reciprocity to a foreign court should a letter of request be directed to it.

[18]       The fourth ground is premised on an assertion that an order by this Court will be academic and will constitute a brutum fulmen in that the courts of the requested states in question cannot compel a witness in their respective areas of jurisdiction to give evidence by way of video link. First respondent contends that the Courts of Jersey, New South Wales, the United Kingdom and the United States of America, will only provide foreign judicial assistance in response to the Letters of Request in circumstances where the identified foreign witness(es), in the respective jurisdictions, volunteer to give evidence to the South African Court through the medium of video-link. On this score, so the argument goes, nothing short of actual consent to furnish evidence by way of video-link will suffice.

[19]        The fifth ground of objection is rooted to the contention that in the absence of a valid source of law permitting it the engagement by this Court with the foreign authorities in each of the respective foreign jurisdictions is contrary to public policy.

[20]       The sixth ground of objection raises the contention that the evidence of the applicant’s deponent, Marais Steyn, is not based on his personal knowledge and cannot sustain the relief sought.

[21]       The seventh ground of objection proffered is that the witnesses identified by the applicants are not necessary witnesses. On this score there are other witnesses resident in the area of jurisdiction of this Court who are able to furnish the evidence, which the applicants seek to elicit by way of the said Letters of Request.

[22]       The eighth ground relates to the form and content of the Letters of Request with the first respondent asserting, inter alia, that the Applicants have not established any justiciable basis upon which this Court can make the representations of law and of fact detailed in the individual Letters of Request.

 

Litigation history

[23]       In August 2008, the applicants instituted action against the first respondent. On 22 April 2015, the first respondent delivered its plea. In the course of 2015, various third-party notices were delivered and further steps were taken relating to those notices. On 5 October 2017, the applicants amended their particulars of claim. On 20 December 2017, the first respondent delivered its consequentially amended plea. No replication was delivered. On 14 January 2019, this application was launched. On 18 February 2019, the first respondent delivered its notice of intention to oppose. During February 2019 the matter was certified a commercial court matter in terms of Commercial Court Practice Directive dated 3 October 2018 (‘the Commercial Court Practice Directive’). On 13 March 2019 the first case management meeting was held at which meeting the parties agreed that this application would be heard on 16 and 17 September 2019. It was also recorded that the parties had embarked on an extensive process in attempting to secure admissions and narrow the issues in dispute. On 15 April 2019, the First Respondent filed an answering affidavit. On 31 May 2019, the applicants delivered their replying affidavit.  On 19 June 2019 a further case management meeting was held. On 9 July 2019, the first respondent advised that it intended delivering a supplementary affidavit. On 12 July 2019, the applicants delivered their heads of argument. On 17 July 2019, the first respondent delivered its supplementary affidavit and, on 26 July 2019, a further supplementary affidavit. On 19 August 2019, the applicants delivered their supplementary affidavits and, on 28 August 2019, their supplementary heads of argument. The application was heard on 16 and 17 September 2019 at which hearing it was agreed that further submissions would be made. This occurred on 29 September 2019 and the response thereto on 7 October 2019. On 1 October 2019, the applicants filed an affidavit dealing with the video-link capabilities of this division of the High Court. The response to such affidavit was contained in a letter dated 7 October 2019. A further affidavit was received on 18 October 2019 with a response thereto on 6 November 2019 and the consent to its receipt on 7 November 2019.

 

Competence of order in foreign jurisdictions

[24]       The first respondent contends that Australia, the United Kingdom and the United States of America do not permit video-link evidence to be taken directly by compulsion for the purposes of foreign proceedings.  In support of that contention, the first respondent relies on the responses filed by each of the United Kingdom, the United States and Australia to a questionnaire contained in the official HCCH Circular (“the Hague questionnaire”) relating to the Taking of Evidence Abroad in Civil or Commercial matters of 18 March 1970 (the “Hague Evidence Convention”), which responses are attached to the answering affidavit and which responses were reproduced on the website of the Hague Conference of Private International Law.

[25]       The applicants in their replying affidavit take issue with the contention that the said responses constitute an accurate reflection of the statutory regimes which regulate the provision of foreign legal assistance in the United Kingdom, the United States and Australia and in this regard reliance is placed on the opinions of a number of practising lawyers, being Mr Thomas Custance (in respect of the United Kingdom), Mr Stuart Riback (in respect of the United States) and Mr Kyriakos Ioulianou (in respect of New South Wales). In addition, the applicants secured an opinion from Mr Andreas Kistler in respect of the position in Jersey.

[26]       The first respondent contends that the responses to the Hague questionnaire upon which it had placed reliance in its answering affidavit constitute matters which the court is entitled to take judicial notice of, thereby rendering such responses admissible in evidence as reflecting the legal position in the United Kingdom, the United States and New South Wales; the said responses fall to be admitted into evidence under  the provisions of section 3(1)(c) of the Law of Evidence Amendment Act, No 45 of 1988 (the “South African Evidence Act”). Reliance in this regard is, inter alia, placed on two letters from Ms Katerina Ossenova of the United States Department of Justice, one letter from Shahn Paterson of the Private International and Commercial Law Section of the Attorney-General’s Department in Australia and one letter from Ms Barbara Fontaine, the Senior Master, Queens Bench Division of the High Court and Queen’s Remembrancer.

[27]       The first respondent, in its first supplementary affidavit, introduced the opinions of three legal practitioners, namely Mr Andrew Wanambwa (of the United Kingdom), Mr Nigel Sanders (of Jersey) and Mr Gordon Grieve (of New South Wales).

[28]       The Applicants have in their further supplementary affidavits dated 20 August 2019 responded to the said supplementary affidavits and based on the opinions of Mr Custance, Mr Kistler, Mr Ioulianou and Mr Riback, draw sharp issue with the opinions of the legal practitioners upon whom the first respondent has placed reliance.

[29]       The parties have adopted conflicting positions in regard to the central contention raised by the first respondent in its answering affidavit, as developed by their affidavits which followed thereon, namely whether it is competent for the Courts of Jersey, England and Wales, the United States and New South Wales to compel a witness resident within their respective areas of jurisdiction to furnish directly to a foreign Court, evidence by way of audio-visual link.

[30]       Applicants contended that this Court should in all events, not engage in an analysis of the disputed content of foreign legal systems in order to determine whether or not foreign Courts will act on its Letters of Request.  The Letters of Request should be issued, leaving the foreign Courts free to determine whether they will accede thereto, whether in the form in which they have been issued or in modified form.

[31]       In many pages of heads of argument, the applicants have sought to persuade this court that on any objective assessment of the relevant case law, the legal position in England, Jersey, and Australia in relation to the competence of the Courts in those countries to compel a witness resident within their respective areas of jurisdiction to testify directly to a foreign court by way of audio-visual link is, totally at variance with what Mr. Wanambwa, Mr. Sanders, and Mr. Grieve assert the position to be. Their evidence is, so it was argued, trumped by that of what Mr. Custance, Mr. Kistler and Mr Ioulianou have to say in regard thereto. So too, should Mr. Riback’s opinion trump that of Ms.Ossenova.

[32]       Relying on Segal v Segal[3] and Federated Insurance Co Limited v Brits and Another[4], the applicants argued that where competing legal contentions in relation to the competence of the Court of the requested authority cannot be resolved with any degree of certainty, the Requesting Court should not embark on an analysis of the law of the Requested Court in order to determine whether the latter will in likelihood accede to the Letter of Request or not. In that eventuality it was argued that the Letter of Request ought to be issued, leaving it open to the applicants to persuade the Court of the Requested State to accede thereto, either as issued, or as modified by the Requested Court.

[33]       The opposing positions in a nutshell can be summarised as follows: The applicants contend that the procedure or approach requested for securing the evidence is neither novel or out of the ordinary – indeed, there exists precedent both in South Africa and in the foreign jurisdictions for the relief sought herein. The first respondent contends that no such precedent exists and that what is requested has never been done either in South Africa or in the foreign jurisdictions.

[34]       The applicants could refer this court to two authorities in foreign jurisdictions in what they contend constitutes support for their position  – The first was the matter of Benfield Greig Limited v David Kirkpatrick[5] brought in the United States District Court – California, in which Mr Kirkpatrick had told Benfield that he would travel to the UK to provide his testimony at trial. Benfield had no real assurance that Mr Kirkpatrick would so cooperate and accordingly brought the application for an order compelling him to testify in Los Angeles. The judgment records that: ‘Benfield has advised Mr Kirkpatrick of its intention to file this Application seeking an order compelling him to give testimony in Los Angeles in the event he does not fly to the UK to give his testimony at trial. Mr Kirkpatrick does not oppose this Application.’ Crucially the court granted the order as: ’…an order compelling Mr Kirkpatrick to provide his testimony in the above provided manner will not burden this Court in any way, as it is not being asked to supervise the proceedings, nor is it likely that it will have to coercively enforce given the lack of opposition to this Application to Compel by any of the opposing parties to the litigation or by Mr Kirkpatrick.’

[35]        Neither the witness nor Benfield’s opponent in the UK, opposed the relief sought. It was, effectively, an unopposed motion. It would appear from the reasons, that had the Court been asked to supervise the proceedings or to coerce Mr Kirkpatrick, the result might have been different.  Further, the Court that granted the order was not the United States District Court for the District of New Jersey but rather, the United States District Court for the Central District of California, whose decisions are not binding upon the New Jersey District Court. The authority does thus not support the legal proposition advanced by the applicants.

[36]       The second matter is one mentioned by Mr Custance, a solicitor of the Senior Courts of England and Wales. He opined that the English Court would consider it within its discretion to make an order granting the assistance sought in the Letters of Request and in amplification of this explained that his firm had represented a party to proceedings in the United States of America in obtaining an order from the English Court that a pre-trial examination of a witness in the jurisdiction of England and Wales be conducted by US counsel by way of video-link between their offices and the offices of his firm. An analysis of the order reveals that it was in the nature of a commission de bene esse but crucially, it is clear from the evidence of Mr Custance that the witness was co-operative. This case too is thus no support for the proposition that an English court will grant the relief sought by the applicants.

[37]       In the more than 3000 pages of documents and the host of authorities from all the relevant foreign jurisdictions that I was referred to, not a single authority granting   the relief claimed in this application was brought to my attention.

[38]       Moreover, I was not referred to a single South African authority in support of the relief sought by the applicants. The quartet[6] of cases all involve witnesses who co-operated with the process – there was no question of compulsion, or of supervision, by the court in the foreign jurisdiction.

[39]        The applicants also relied on Federated Insurance[7] which was an appeal from a judgment refusing an application for the grant of a commission de bene esse. The appeal was successful and the issue of a letter of request to the British Government to take the steps necessary to obtain the evidence of the witnesses before the appointed commissioner was authorised. This then, is also not authority for the relief sought as it involved a commission de bene esse.

[40]       Reliance was placed on Segal [8] which case concerned an application for an order supplementing and extending the scope of a previous order granted permitting the examination de bene esse of certain witnesses in Canada before a commissioner.  The witnesses had proven to be reluctant and the request to the court was to amend its order so as to include provision for the witnesses attending upon subpoena duces tecum. This relief was granted. For the moment, of importance is that the order dealt with the element of compulsion within the confines of a commission de bene esse. This case does thus not constitute precedent for the form of relief currently sought.

[41]       I have not been persuaded that this Court has the authority to direct foreign judicial authorities to give effect to the relief the applicants seek.

[42]       None of the expert opinions that the applicants attach to their replying affidavit properly addresses whether this Court can approach foreign courts for an order to compel a person to appear directly via video link in a court foreign to it (i.e. South Africa). The order that the applicants seek is tantamount to this Court requesting a foreign court to compel a witness to attend court proceedings in South Africa.

[43]       The applicants place considerable reliance upon the Hague Evidence Convention – the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. However, the Hague Evidence Convention, which has not been incorporated into the domestic law of South Africa, does not empower this Court to make such request.

[44]       The Foreign Courts Evidence Act, 1962, does not empower a South African Court to provide to a foreign court “the assistance” or any commitments that the applicants seek this Court, reciprocally, to request from the foreign judicial authorities.

[45]       What is more, it appears from the Foreign Courts Act, considered together with the Protection of Business Act, 1978, that the undertaking of reciprocity is precluded by the requirement of permission being obtained by a South African Court from the current equivalent of the Minister of Economic Affairs.

[46]       Under section 40(1) of the Superior Courts Act, in order that it might be complied with, a Letter of Request from a foreign state or territory first requires:

“an intimation that the Minister (being the Cabinet minister responsible for the administration of justice) considers it desirable that effect should be given thereto without requiring an application to be made to such court.”

 

[47]       The Foreign Courts Act, the Protection of Business Act and section 40(1) of the Superior Courts Act empower a South African court to assist a foreign court to obtain evidence from a witness in South Africa. None of those statutes empowers a South Africa Court to require a foreign court to assist it to obtain evidence from a witness who is outside South Africa.

[48]       Regard must be had to the fact that the position in our law is that, if the evidence of any person is to be procured by commission de bene esse before a commissioner outside South Africa, the court cannot compel a witness either to appear before the commission or to comply with an order duces tecum. It might direct that the witness be examined. It leaves it to the Court in whose area the witness is to compel his or her attendance. Whether effect is to be given to the Letter of Request depends entirely upon the foreign country concerned.[9] This is clear from the decision in Brittain v Pickburn,[10] where the Court held:[11]

“The first part of this proposed order I cannot make. Just as I cannot command the witness to attend before the Commissioner, but must leave it to the English Courts to give effect to the commission, so I cannot order a person outside the jurisdiction of this Court to allow a document in his possession to be photographed. For this purpose plaintiff must seek the aid of the English Courts.”

 

[49]       If a South African court cannot compel a witness to attend before a Commissioner abroad, the same reasoning must perforce apply here. This is the more so since the obtaining of evidence from a witness in another country is not even a part of our law or permitted by the Rules of the Court.

[50]       The Hague Conference of Private International Law is an intergovernmental organisation operating in the sphere of private international law. It administers several international conventions, including the Hague Evidence Convention.

[51]       The country profiles, which accord with the responses to the questionnaire, reflect the position of each of the United Kingdom (England and Wales), the USA and Australia concerning the obtaining of direct evidence via video link for purposes of proceedings in foreign jurisdictions.

[52]       The country profiles to be found on the website of the Hague Conference, of Australia, the United Kingdom and the USA, which are all countries that have acceded to the Hague Evidence Convention, say that none of them permits video-link evidence to be taken directly by compulsion for purposes of foreign proceedings.

[53]       The applicants contend that the contents of the country profiles in question constitute hearsay evidence and request that this Court exercise its discretion in favour of admitting this hearsay evidence. The first respondent has attached substantial evidence to its supplementary affidavit -- that reflects communications between its attorneys of record and the representatives of the relevant authorities in the foreign jurisdictions. These communications took place pursuant to receipt of the replying affidavit in which was communicated the applicants’ position that the contents of the official website of the Hague Evidence Convention, and official responses recording the positions of countries to the taking of evidence, fell to be totally disregarded by this Court.

[54]       The authorities in each of those countries have confirmed that they are the authors of the country profiles. The authors of the country profiles are Government officials that have no interest in the outcome of this litigation and have done no more than state the current positions in their respective countries.

[55]       On the 18^th of October 2019, Mr Willans deposed to a second further supplementary affidavit (‘the 18 October 2019 affidavit’) and requested this court to admit it. On the 21st of October 2019, the applicants indicated that to the extent that this court was willing to permit the further affidavit, they would want an opportunity to deal with it. An affidavit was filed on 6 November 2019 and on 7 November 2019, the first respondent indicated that it had no objection to its receipt.

[56]        The 18 October 2019 affidavit seeks to introduce an email dated 17 October 2019 received form one Shahn Paterson (‘Ms Paterson’) of the Australian Attorney-General’s Department in which she says she sought advice from the New South Wales authorities and that they confirmed that:

‘the Evidence on Commission Act 1995 and the Uniform Civil Procedure Rules 2005 (NSW) governs the way the Supreme Court of NSW provides assistance to a foreign court pursuant to a Letter of Request for the taking of evidence. Neither this statutory framework nor the Supreme Court’s inherent jurisdiction, extends to enabling a foreign court to take evidence directly from a witness by video-link in a NSW Court. The Evidence (Audio and Audio Visual Links) Act 1998 does not provide any assistance.

The answers in the Country Profile Questionnaire in relation to New South Wales accurately reflect the position under NSW law i.e. that a foreign court is not entitled to directly take evidence from a witness located in NSW by video-link with the assistance of the Supreme Court.’

 

[57]       The applicants’ 7 November 2019 affidavit filed in response hereto, contained essentially legal argument. The criticisms included that Ms Paterson nowhere identified the ‘NSW authorities’, there was no reference to any authorities or legal precedent relied upon for the conclusions proffered, she has still not, on oath confirmed her conclusions and that her evidence was hearsay.

[58]       During argument, I enquired from both parties how I was to approach the application and what the test was I was to apply. Both sides submitted that I was not to apply the Plascon Evans v Van Riebeeck Paints (Pty) Ltd [12] test, but that a lower threshold would suffice. I was to satisfy myself that the relief sought was competent, appropriate under the circumstances and required. I am not so satisfied. As indicated hereinbefore, I have not been referred to a single authority in point in the foreign jurisdictions where the relief was granted – the two authorities I was referred to, were distinguishable, as discussed. There simply exists no legal precedent for the relief sought. Surely this buttresses the information obtained from the various official country websites to be found on the Hague Conference website? Surely on this test I can receive and give weight to what an authorised and published stated position of a country is on the topic? Perhaps the stated position won’t hold up in the fullness of time if challenged in their courts, but that does not mean I ought to disregard it totally in deciding whether I am going to come to the applicants’ aid, and place the reputation of this Court at risk by venturing a wholly novel form of relief requesting a foreign court to do that which it does not have the power to do. I find that I can and thus do receive this evidence.

 

The position in the United Kingdom (England and Wales)

[59]       In the country profile of England and Wales, current to April 2017, it is made clear that, in all cases where video-link evidence is authorised under the Hague Evidence Convention “the witness may refuse without conditions”. This would render nugatory the order that the applicants seek since no witness based in England could be compelled to testify by video link. The country profile of England and Wales was submitted “formally by a governmental authority … in response to an Official HCCH Circular … containing the 2017 Country Profile Questionnaire …” The authority that submitted it was the Senior Master of the Foreign Process Section of the Royal Courts of Justice in London, which is “also the Central Authority designated under Article 2 of the Evidence Convention.”

[60]        To this objection to the relief the applicants seek, they put up, enclosed with the replying affidavit, an affidavit deposed to by the already mentioned Mr Thomas Custance, an English solicitor. Mr Custance differs from the official position stated in the country profile for England and Wales without indicating on what basis that official statement might be impugned as incorrect. He says that, “despite what is said in the Country Profile”, he believes that the English Court will consider it within its discretion to make an order granting the assistance sought by the applicants. Yet, while his reasoning is based on an exposition of various statutory provisions and makes reference to case law, he admits to not knowing “who completed the Country Profile or how it came to be completed in the way that it was.”

[61]       In response to the affidavit of Mr Custance, enclosed with its supplementary affidavit, the first respondent delivered an affidavit deposed to by the already mentioned Andrew Wanambwa, in which he refuted the substance of what                Mr Custance contends for as being the applicable principles of English law. Crucially, Mr Custance was not able to point to a single reported case, or even a case known to him or his firm, where an English Court granted an order compelling a witness to give evidence by way of video link in foreign proceedings.

[62]       Mr Wanambwa says:

            “Finally, I note that at paragraph 18 of his opinion Mr Custance acknowledges that he is unaware of any cases where the English Court has been asked to consider whether an order is oppressive because it requires the giving of evidence by video-link. I also assume that he is unaware of any case in which the English Court has been asked for, let alone granted, an order in the terms being sought by the Applicants in this case, namely that the English Court compel a witness within its jurisdiction to give evidence by video link directly to a foreign requesting court as part of its trial process. I consider that this reflects the facts that the English Court plainly has no jurisdiction to make such an order …”

 

[63]       Mr Wanambwa says that he disagrees with the conclusion of Mr Custance for the several reasons set out in this affidavit. He concludes:

     “The English Court therefore has no jurisdiction to obtain the evidence of … witnesses in South Africa.

The provision of evidence given by a witness physically in England but being received via video link before the South African Judge sitting in the High Court of South Africa would amount to the obtaining of evidence of the witness in South Africa.

Further, the evidence is to be obtained ‘for the purposes of’ civil proceedings in the requesting court; not in proceedings in the requesting court as would be the case if the evidence was to be directly received, via video link or otherwise, into the South African trial.”

 

[64]       At the juncture when both the Hague Evidence Convention and the English Act were enacted, an order by an English Court compelling a witness to give direct evidence in foreign proceedings would be an order by English Courts directing that witness, under compulsion, to give evidence in a foreign court. Such evidence would not “be obtained in England and Wales”. There is no difference, with video link evidence, save that the witness is not ordered to physically travel to the foreign court proceedings to enable his/her evidence to be obtained in such Court proceedings but, rather, the witness “travels” to such foreign court with the assistance of video link technology.

[65]       Mr Wanambwa goes on to say:

[I]n my opinion the Country Profile … appears to be correct in its statement that a witness cannot be compelled to give evidence by video link. I note that it is also consistent with Article 17(2) of the Council Regulation (EC) No 1206/2001 of 28 May 2001 … on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters which applies to request made by courts of member states of the European Union…”

 

The position in Jersey

[66]       As far as Jersey is concerned – which is not a State for purposes of international law, its international relations being under the aegis of the United Kingdom – the applicants enclose with their replying affidavit, an affidavit deposed to by Andreas Kistler, an advocate of the Royal Court of Jersey. The Hague Evidence Convention was extended to Jersey with effect from 1987.

[67]       Mr Kistler fails to provide any authority for the proposition that the Royal Courts of Jersey would or indeed that they have the power to order a witness who is situated in Jersey to testify in trial proceedings in a foreign court. Mr Kistler says that the Jersey Courts will permit video-link evidence in its own proceedings and that a Jersey court will allow evidence to be obtained in Jersey for proceedings abroad. Yet, those two separate premises do not conduce to the conclusion that a Jersey court will compel a witness based in Jersey to give evidence in a South African court through video link, where the Jersey court is nothing but a conduit for that evidence. In response to the affidavit of Mr Kistler, the first respondent delivered, enclosed with its supplementary affidavit, an affidavit deposed to by Nigel Sanders, a lawyer in the employ of Walkers (Jersey) LLP, whose views are at odds with those expressed by Mr Kistler.[13] In sum, his view is:

“In my view, the Taking of Evidence Law introduced a concept whereby the Royal Court could afford assistance to a foreign court but, in doing so, would nevertheless control the process by which the evidence is obtained in Jersey, and would be in a position to police that process. In my view, as noted above, the Jersey Court would not accede to a request that a witness be ordered to directly give evidence in the South African trial (by way of video link or otherwise).

I do not accept that the supposed safeguards in the Kistler Affidavit would provide sufficient comfort that the examination would be conducted in accordance with the requirements of Jersey law. The simple fact that Jersey Law permits the use of video link evidence for its trials cannot in my view be used to reach a conclusion that the Jersey Court would by order require and compel a witness in Jersey to be subjected to that process for the purposes of a trial in South Africa whether or not it had been requested by the South African High Court.

The position adopted by Advocate Kistler appears … to be that as he is not aware of there being any express prohibition on the Royal Court as a matter of law from rendering the assistance of the South African Court as the claimants seek by way of Letter of Request, the Royal Court has jurisdiction to grant such assistance. As indicated above, I disagree with this view. In any event, at best for Advocate Kistler, that does not mean that there is a broad and unlimited discretion in the Royal Court to extend the application of the Taking of Evidence Law beyond its purpose. That purpose, as noted above, is to provide assistance for the obtaining of evidence in Jersey. Again, simply because the Jersey Court will allow video evidence in its procedural rules does not mean that it will allow itself to be used as a conduit for an overseas Court’s jurisdiction to extend over witnesses located in Jersey.”

 

[68]       In sum, it would appear that the applicants seek this Court to go where the Royal Courts of Jersey have not themselves yet gone, in circumstances where the relief the applicants seek is plainly novel and unusual, where there is no clear basis for it and indeed where the Government of the United Kingdom has officially taken the contrary stance.

 

The position in Australia

[69]       The country profile for Australia, current to August 2017, provides the following information obtained directly from the Australian authorities in respect of the jurisdiction of New South Wales (“NSW”):

“NSW law does not prevent a witness, who is located in NSW, from voluntarily giving evidence from NSW by video-link in proceedings in a foreign court. Such request is ordinarily arranged privately between the parties outside of the Convention, and NSW courts have no role to play in the giving of such evidence (except on a case by case basis, lending the use of its AVL IT facilities, if requested to do so by a foreign court, in the interests of judicial comity). That is, in the above circumstances, the law of NSW does not govern the giving of that evidence.” [emphasis added]

 

[70]       With the replying affidavit, the applicants enclosed an affidavit deposed to by Kyriakos Ioulianou, a former South African advocate who relocated to Australia in February 2018. He does not say when he qualified as an Australian solicitor such that little over a year later, he considers himself an expert in Australian law.

[71]       Mr Ioulianou fails to provide any authority for the proposition that the Supreme Courts of South Wales would or indeed that they have the power to order a witness who is situated in New South Wales to testify in trial proceedings in a foreign court. Instead, all Mr Ioulianou proffers is a bald statement that “I have not found any legal principles which support such a contention” … that “the appropriate statutes and rules in New South Wales dealing with the assertion that procurement of evidence by video-link [are] precluded under New South Wales law”.

[72]       Enclosed with its supplementary affidavit, the first respondent delivered an affidavit deposed to by Gordon Thomas, a litigation partner of Piper Alderman for 27 years. He responds directly to the argument framed in the affidavit of Mr Ioulianou:

“31.  I am of the view that the interaction between the Audio Visual Act, the Evidence Act and the UCPR prevents foreign tribunals from taking evidence by audio visual link from witnesses in NWS for the following reasons:

31.1 part 4 of the Evidence Act together with r52 of the UCPR regulates the taking of evidence on commission in NSW by way of Letter of Request under the Convention;

31.2 any examination under the Evidence Act pursuant to the Letter of Request must conform with the procedure and rules applicable to proceedings before the Supreme Court of NSW;

31.3 the Audio Visual Act sets out the use of audio visual links in the Supreme Court of NSW for the examination of witnesses; and

31.4 the Audio Visual Act does not provide for the use of an audio visual link for examination of witnesses in NSW for proceedings outside of Australia.”

 

[73]       The Australian Government official says:

       “Australia will not compel a person to appear directly via video link in a foreign court. In such situations, the evidence would need to be taken by the Australian court through the standard Letter of Request process under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970. This would allow an Australian court to compel the witness to produce evidence. The requesting court could be patched in for video conferencing, but would not be able to ask any questions of the witness or intervene in the proceedings in any way. If the requesting court wanted to proceed with this option, it would need to make clear that it was requesting to be present at the taking of the evidence by video link (Article 3(i)). It would be a matter for the state and territory authorities to decide whether this request for attendance via video link was able to be executed…”

 

[74]       This is supported by the expert opinion that the defendant obtained from Mr Gordon Thomas Grieve of Piper Alderman, who equally disagrees with the views and conclusions expressed by Mr Ioulianou.

[75]       Even though the applicants have in their response to the first respondent’s supplementary affidavit, sought to make an argument that the states in Australia have adopted differing positions in relation to the matters raised in the questionnaire as they do not have a uniform position, they acknowledged that the central authority of New South Wales answered the question in the questionnaire “[d]oes Your State in the application of Article 27 (i.e. internal law or practice), allow for a foreign Court to directly take evidence by videolink?”, in the negative. The state of New South Wales’ answer was, echoing the above, as follows:

“Under NSW law, a foreign court is not entitled to directly take evidence from a witness located in NSW by video-link. However, NSW law does not prevent a witness, who is located in NSW, from voluntarily giving evidence from NSW by videolink in proceedings in a foreign court. Such request is ordinarily arranged privately between the parties outside of the Convention and NSW courts have no role to play in the giving of such evidence (except on a case by case basis, lending the use of its AVL IT facilities, if requested to do so by a foreign court, in the interests of judicial comity). That is, in the above circumstances, the law of NSW does not govern the giving of that evidence.”

 

The position in the United States of America

[76]       The country profile for the USA, current to June 2017, unequivocally prohibits the compelled use of video-link for the gathering of evidence on the basis of letters of request:

“The United States does not permit the direct taking of evidence by video-link under Chapter I of the Convention. The United States permits the direct taking of evidence by video-link on a voluntary basis under Chapter II of the Convention, but such arrangements must be agreed upon privately and do not involve the United States Central Authority. (emphasis added)

 

[77]       Enclosed with the replying affidavit, the applicants delivered an affidavit deposed to by Mr Stuart Riback, who contends that a court in the United States will simply apply 28 USC § 1782.

[78]       However, he ignores the fact that this Court cannot and should not overlook the fact that it is the official position of the US Department of Justice that the United States permits only of the direct taking of evidence by video link on a voluntary basis, as per the country profile.

[79]       Mr Riback also mentions a Draft Guide issued in March 2019 and refers, in this regard, to “four cases in the United States in which trial courts permitted trial testimony to be taken via video link” or that video link testimony may be sought under a country’s internal law. The fact, however, that video link testimony may, in specified circumstances, be permitted in trials held in various jurisdictions within the United States, is irrelevant to the question of whether a country (and the USA in particular) will compel a witness to directly give evidence in trial proceedings in a foreign country (and not in the USA), albeit via video link – which, as appears from the official response of the United States to the Hague Evidence Convention questionnaire, is not permitted.

 

Analysis of the letters of request

[80]       I intend analysing one Letter of Request (there are 9). I will draw attention to, amongst other things, the fact that the applicants would have this court make far-reaching and substantive representations of fact, in the absence of a sufficient basis having been laid to render this reliable or appropriate, coupled with undertakings, which are neither legally sanctioned nor appropriate nor capable of being given effect to.

[81]       The first Letter of Request is one addressed to The Royal Court of Jersey (the judicial authority) from this court (the Requesting Court).

 

[82]       It commences:

‘I,                  , a duly appointed Judge of the Requesting Court respectfully request the assistance from the Senior Master of the Queen's Bench Division of the High Court of England and Wales in obtaining evidence in that jurisdiction to be used in a civil proceeding before the High Court of South Africa, Gauteng Local Division, Johannesburg (the Requesting Court). ‘

 

[83]       Fundamental and clear from this very first paragraph is that it is a request from one judge to another judge. It is a co-operative approach.

[84]       It then records:

‘This request is made pursuant to an order of the Requesting Court consequent upon proceedings brought by the Plaintiffs under the Rules and procedures of the Requesting Court. It is noted that the Republic of South Africa is a signatory state to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the Convention) albeit, that the Convention has not been incorporated into the domestic law of the Republic of South Africa.  This notwithstanding, the Republic of South Africa honours Requests made to it for assistance by foreign Requesting states which are signatories to the Convention. ‘

 

[85]       This statement is incorrect, both factually and legally. From what has been set out hereinbefore, it is clear that our rules and procedures do not cater for this request. Further, I can not state that South African courts ‘honours Requests made to it” similar to the one sought. I can only say, I know of no case in which it was requested or granted.

[86]       I am then called upon to give the following assurance:

‘The Requesting Court requests the assistance described herein as necessary in the interests of justice. ‘

 

[87]       I am not, at this point in the proceedings, able to state this. I am unable to properly and responsibly represent this to the foreign judicial authority.

[88]       The parties agreed to certify this matter as a Commercial Court matter. This application was commenced prior to such certification. The parties have not yet embarked on the process envisaged in chapter 4 of the Commercial Court Practice Directive. It may well be that much of the evidence sought to be procured will be admitted or can be secured by other witnesses residing within this court’s jurisdiction – I do not pronounce on the correctness of this possibility.

[89]       The bigger hurdle the applicants face is the availability of an existing remedy contained in rule 38 being a commission de bene esse which they elected not to use as they contend it would be too costly. Instead the applicants have resorted to requesting this court for this extraordinary relief on the basis that, although the existing alternative relief could achieve the same objectives, it is too costly, this without any costs projections in the papers. There are no pro-forma bills of costs comparing the two alternative procedures. From what I have before me, the contrary might well be correct. If I were to issue the Letters of Request and based on the conflicting legal opinions filed in this court, the likelihood of costly litigation ensuing in four different jurisdictions seems inevitable. It is not insignificant that the litigation is directed, on the applicants’ estimation, at securing judgment for between approximately R40 billion and R1 trillion.

[90]       I too am, and prior to the process envisaged in chapter 4 of the Commercial Court Practice Directive, requested to state:

‘The Requesting Court confirms that this Request relates specifically to obtaining relevant evidence admissible in trial and for use in trial.’

 

[91]       I am simply not able to, at this stage, give any opinion on either relevance or admissibility, in the blanket terms sought, of the viva voce evidence or the documentary evidence. Is this court obliged to trawl through the list of documents requested to satisfy itself that the documents sought are indeed relevant and admissible?

 

[92]       Again, and in the interests of justice, I am urged to state the following:

It is hereby requested in the interests of justice that you cause by your usual and proper process such orders to be made to cause testimony and evidence to be taken for and at trial in relation to all matters relevant to the proceedings summarised in paragraph 3 below relating to the documents described in Schedule A, and the subject matters and topics described in Schedule B hereto, from the Witness identified under paragraph 4 below, as set out in Rule 34.18, 34.9 and Rule 32.3 of the English Civil Procedure Rules.

In particular, it is requested that the oral evidence of the Witness is taken during the trial which is to take place in the Republic of South Africa before a Judge(s) appointed by the Requesting Court to adjudicate the claims between the parties and in respect of which the Witness will be examined from the Requesting Court. It is requested that the Witness give evidence by way of video-link to the Requesting Court, through that medium, from the venue chosen by the Honourable Judicial authority in terms of this Request. The evidence of the Witness will be taken in this manner following the commencement of the trial within the trial dates allocated. 

……..

The Honourable Judicial authority is further requested, through its usual and proper process, to order and direct the Witness to produce the documents set out in Schedule A before the beginning of the trial, in due course after the hereby requested assistance has been granted. (emphasis provided)

 

[93]       This is the paragraph in the Letter of Request in which the foreign authority is to exert pressure on the witness by the equivalent of what we would refer to as a subpoena. Subpoenas are issued where matters are pending before a court. How this would be put into practical effect, occupied a lot of time in court. At the conclusion of the hearing I requested counsel for the applicants to provide a short note on the process to be followed by the four foreign courts were the Letters of Request to be issued. The first respondent was afforded an opportunity to respond to this note. I am appreciative of this further assistance given to the court.

[94]       It is apparent from the applicants’ note that, were I to grant the relief set out in the applicants’ notice of motion, this will spawn a minimum of four substantive applications in four foreign jurisdictions, each of which will be for relief for which there is no clear precedent in any of those jurisdictions. The applicants’ note presents as matter-of-fact and minimises the unprecedented novelty of the assistance they seek from the foreign judicial authorities in question.

[95]       The note asserts in paragraph 2.1.4.2 that ‘the English Court will, upon making such order(s) as it deems appropriate, directing and ordering the foreign witness to attend at the venue to give his/her evidence……become functus officio in regard to the taking of the evidence.’  This falls to be contrasted with the express provision in the Letters of Request[14] that the evidence will be taken ‘under the monitorship of such person as may be designated by the Honourable Judicial Authority.’ Paragraph 9.2 provides: ‘No judicial personnel of the Requesting Court will be in attendance or participate in the execution of the Letter of Request by the Judicial authority.’ This proposition is completely at variance with this courts function in South Africa – this court will participate in the execution. It will be listening to the evidence, administering an oath and making rulings on relevance and admissibility. That being so, the quoted statement is incorrect and cannot be made.

[96]       The undertaking relating to reciprocity is formulated as follows:

10.1    The Requesting Court extends to the Honourable Judicial authority the highest consideration for its courtesy and assistance in this matter.

10.2      The Requesting Court also states that it shall be ready and willing to   assist the courts of England and Wales in a similar matter when required.

[97]       This court cannot give the assurances requested. The procedure relied upon is completely novel with no legal precedent to support it in South Africa.

[98]       In respect of confidentiality and privilege, I am called upon to give the following assurances:

14.1      Computershare maintains the share register of RRL which is a listed company.

14.2      Computershare has obtained the consent of RRL to engage  with the Plaintiffs, to provide them with documentation and to testify at the trial action.

14.3      In the circumstances, it is not anticipated that questions of confidentiality or privilege will arise.

[99]       I do not have any knowledge of these arrangements.

[100]    I have drawn attention to some of the difficulties these Letters of Request raise.

 

The evidence sought might be procured by commission de bene ese

[101]    The right to procure examination by interrogatories is expressly catered for in the Superior Courts Act. The Uniform Rules of Court, which derive their validity from section 30 of the Superior Courts Act, provide for the right to procure evidence by commission de bene esse.

[102]    The applicants say that the procuring of evidence by way of a commission de bene esse is exceptionally costly, as it would necessitate travel to England, Jersey, Australia and New Jersey, in the USA, and that the cost of travel and accommodation alone would be substantial and render the taking of evidence in this manner unattractive.

[103]    Rule 38 is specific on when and how evidence can be procured by commission de bene esse.

[104]    It provides:

(3) A court may, on application on notice in any matter where it appears convenient or necessary for the purposes of justice, make an order for taking the evidence of a witness before or during the trial before a commissioner of the court, and permit any party to any such matter to use such deposition in evidence on such terms, if any, as to it seems meet, and in particular may order that such evidence shall be taken only after the close of pleadings or only after the giving of discovery or the furnishing of any particulars in the action.

(4) ……

(5) Unless the court ordering the commission directs such examination to be by interrogatories and cross-interrogatories, the evidence of any witness to be examined before the commissioner in terms of an order granted under subrule (3), shall be adduced upon oral examination in the presence of the parties, their advocates and attorneys, and the witness concerned shall be subject to cross- examination and re-examination.

(6) A commissioner shall not decide upon the admissibility of evidence tendered, but shall note any objections made and such objections shall be decided by the court hearing the matter.

(7) Evidence taken on commission shall be recorded in such manner as evidence is recorded when taken before a court and the transcript of any shorthand record or record taken by mechanical means duly certified by the person transcribing the same and by the commissioner shall constitute the record of the examination: Provided that the evidence before the commissioner may be taken down in narrative form.

(8) The record of the evidence shall be returned by the commissioner to the registrar with his certificate to the effect that it is the record of the evidence given before him, and shall thereupon become part of the record in the case.

[105]    The authorities reveal that a commission will be granted if it can be shown that for some valid reason, the witness cannot attend the court to give evidence in person;[15] a commission may be granted if a witness beyond the jurisdiction refuses to attend;[16] a commission will be granted if the evidence sought to be procured, is material;[17] and a commission is appointed in the court’s jurisdiction where the witness resides.[18]

[106]    A fundamental flaw of the proposed procedure, ie the issue of a Letter of Request from this court in South Africa to a court in the foreign jurisdiction is that it seeks to bypass diplomatic channels.

[107]    The learned authors of Herbstein and Van Winsen, The Civil Practice of the High Courts of South Africa, Fifth Edition, Volume 1, state the following at 872 in regard to Letters of Request:

 “The efficacy of a commission depends upon inter alia, the willingness of a witness to attend before the appointed commissioner. Letters of Request (commissions rogatoire) provide machinery to compel the attendance of a witness before a commission. The party requiring attendance requires a court before which the action is pending for the issue of a letter of request to the government of the country where the witness is and where the commission is to sit. In the letter of request the foreign government is asked to take steps to take the evidence of the person in question. If the application is granted, the request is forwarded to the proper authority in the foreign country, usually through the Department of Foreign Affairs. It will then depend upon the Court in the foreign country concerned, whether or not it will give effect to the letter of request.”

 

[108]    The applicants argued that although the learned authors postulate that a letter of request would be routed through diplomatic channels, the issue thereof by a South African Court directly to the Court whose assistance is required, has been sanctioned. In this regard reference was made to two authorities being Sansinena Distributing Syndicate v Cape Cold Storage and Supply Co Ltd[19]  and Paarl Roller Flour Mills v Union Government[20]. Sansinena involved an application for the appointment of a commission de bene esse. The respondent sought costs as the applicant had not approached it prior to launching the application and it would have consented to the appointment of the commission had it been asked. Paarl Roller simply followed Sansinena. The appointment of the commission was thus consensual and these authorities do not support the central theme. Both cases support the proposition that requests can be made court to court – they related to the appointment of commissions, with requests that local commissioners be appointed from the local Bar. They are not support for the proposition that this court can request a court in a foreign jurisdiction to convene a court and compel a witness to testify and to produce documents.

[109]     The authors in Erasmus, The Superior Court Practice, comment as follows:

‘If the evidence of any person is to be taken before a commissioner outside the Republic, the court cannot compel a witness either to appear before the commission or to comply with an order duces tecum. It merely directs that the witness be examined, and leaves it to the court in whose area the witness is to compel his attendance. The following possible courses of action present themselves:

       (i)  In those countries where there is legislation similar or comparable to the Foreign Courts Evidence Act 80 of 1962, the procedure provided for in such legislation may be adopted.

      (ii)  Where there is no such legislation, the procedure laid down in the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, may be followed, but only in respect of those countries which have acceded to the Convention. The Republic has acceded to the Convention under certain reservations, etc.

    (iii)  Where there is no such legislation, as aforesaid, and the Convention cannot be applied, the only alternative will be to apply to the court before which the action is pending for the issue of a letter of request to the government of the country where the witness is and the commission is to sit. In such a letter of request the government concerned is requested to take steps to obtain the evidence of the witness. If the court grants the application, the request is forwarded to a proper authority in the foreign country through the Department of International Relations and Cooperation (formerly the Department of Foreign Affairs). Whether or not effect is given to the letter of request depends entirely upon the foreign country concerned.’

 

[110]    Assuming that the applicants’ relief, if granted, will not constitute a brutum fulmen, the requests should, in my view, be routed through diplomatic channels. This is so for a number of reasons. If one were to postulate the following situation – if this court were to issue the Letters of Request such letters would be received by the registrar. In the event of uncertainty in respect of the wording or the import of the Request, is the court in the foreign jurisdiction or the registrar, to correspond with this court and in particular, me? Upon receipt of such request for clarification, am I to call upon the parties to make representations. Should there be dissensus in respect of the response to the query, am I to rule on the issue? Am I to provide a reasoned judgment in respect thereof? The reasons for showing restraint in embarking on this course are obvious.

 

Should this court invoke section 173?

[111]    In the absence of a specific legislative provision that might provide a basis for the relief that the applicants here seek, it is necessary to consider if this Court might fill that statutory lacuna on the basis of regulating its own procedure as framed in section 173 of the Constitution, as the applicants contend.

[112]    In Economic Freedom Fighters,[21] Mogoeng CJ makes it clear that “[t]he Judiciary is but one of the three branches of government. It does not have unlimited powers and must always be sensitive to the need to refrain from undue interference with the functional independence of other branches of government.”[22]

[113]    A central feature of judicial observance of the separation of powers is that the Courts will not seek to prescribe to the legislature or executive how they should go about their duties. Rather, it is the duty of the Courts to determine whether the political branches have fulfilled their constitutional duties.[23] The focus of the judiciary is on determining whether the actions of the political branches pass constitutional muster, as opposed to deciding whether the chosen courses of action are either desirable or even preferable.[24]

[114]    Our Courts have explicitly cautioned against overhasty reliance upon section 173 of the Constitution as a source for judicial law-making. Indeed, in Moulded Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis,[25] the former WLD said:

“I would sound a word of caution generally in regard to the exercise of the  Court's inherent power to regulate procedure. Obviously, I think, such inherent power will not be exercised as a matter of course. The Rules are there to regulate the practice and procedure of the Court in general terms and strong grounds would have to be advanced, in my view, to persuade the Court to act outside the powers provided for specifically in the Rules. Its inherent power, in other words, is something that will be exercised sparingly.”

 

[115]    What is more, consideration must be given to the fact that the primary function of the courts is to interpret the law and not make law. The latter is the legislature’s job. Thus, in Mighty Solutions, the Constitutional Court said:[26]

“[J]udges should be mindful of the fact that the major engine for law reform should be the Legislature and not the Judiciary. The principle of separation of powers should thus be respected”’

[116]    In DZ,[27] the Constitutional Court added there exists a “long-established principle that in a constitutional democracy it is the legislature, as the elected branch of government, which should assume the major responsibility for law reform.”

[117]    The Constitutional Court has itself made plain that there is a difference between judicial interpretation and judicial legislation. The latter violates the separation of powers doctrine and the Rule of Law itself.[28]

[118]    The legislature is already grappling with the complex issues relating to when our Courts might allow evidence by way of video link within the criminal law context. Those inroads have indeed been solidified in appropriate statutory amendments. The applicants themselves say that there is a further legislative process in train to modernize the law in respect of civil trials by making provision for the taking of evidence by video-link.

[119]    The limited circumstances in South African law in which video-link evidence is properly permitted, were all the product of duly-considered and constitutionally-mandated legislation as opposed to ad-hoc decision-making by individual Judges. This appears from, for example, the provisions of sections 159A–D of the Criminal Procedure Act, 1977 (as amended).[29] As appears from those provisions of the CPA, which were introduced by amendment and after thorough investigation by the South African Law Reform Commission, not to mention the rigorous process of statutory enactment, there are pragmatic and resource-allocation issues that require to be considered and determined by those persons constitutionally-mandated to do so, before the question of when, if at all, and in what circumstances and subject to what requirements, video-link evidence might be permitted.

[120]     The objects of the SALRC are stated under section 4 of the South African Law Reform Commission Act, 1973:

“The objects of the [SALRC] shall be to do research with reference to all branches of the law of the Republic and to study and to investigate all such branches of the law in order to make recommendations for the development, improvement, modernization or reform thereof, including –

(a)     the repeal of obsolete or unnecessary provisions;

(b)     the removal of anomalies;

(c)      the bringing about of uniformity in the law in force in the various parts of the Republic;

(d)     the consolidation or codification of any branch of the law; and

(e)     steps aimed at making the common law more readily available.”

 [emphasis added]

 

[121]    Accordingly, the modernization and reform of the law, including when the use of technology such as video-link evidence may be effectively implemented into everyday court procedure when it involves a foreign jurisdiction, is a task assigned by the Legislature to the SALRC.

[122]    Importantly, for purposes of a civil trial, the rules do not, at present, expressly provide for leading evidence by means of video-link within the borders of South Africa, or abroad.

[123]    In stark contrast to the process that produced the amendment to the CPA, the applicants would have this Court perform the function of both the SALRC and the legislature. They would, in fact, have this Court bypass this constitutionally-required process of amending statutes and Rules of Court under the guise of regulating its own process.

[124]    The SALRC determines when the modernization of procedure is desirable. The way that that amendment is achieved is through the intervention of a different statutory functionary and its consultative process. That functionary is the Rules Board for Courts of Law of the Republic of South Africa. The Rules Board has a statutory mandate, under section 6 of the Rules Board for Courts of Law Act, to review the rules of court and to, where necessary, make, amend or repeal those rules subject to the approval of the Minister of Justice and Correctional Services.

[125]    In their replying affidavit, the applicants say that, on 15 May 2019, the Rules Board announced its intention to amend the Uniforms Rules of Court to regulate the procedure for adducing in civil trials evidence by audio and video link in circumstances where a witness is unable to attend the trial in person and to testify orally.

[126]    Yet, there is an extensive procedure for the amendment of the Uniform Rules of Court. That procedure is initiated by the receipt of representations for amendments to the Rules of Court from affected parties. That representation, if it is deemed to have merit, is debated and circulated in the form of working papers and discussion papers. The proposed amendment is ultimately articulated as a draft amendment to the rules which is circulated for comment. After all comments have been received and the Rules Board has approved the proposed amendment, it is submitted for approval by the Minister of Justice.

[127]     Accordingly, as matters stand, the Rules Board for Courts of Law has done no more than propose changes to the relevant Rules. At the moment, it is unknown if indeed and when the amendments will be effected. It would, therefore, be premature for this Court to grant the relief the plaintiffs seek on the assumption that the proposals will be incorporated into the Uniform Rules of the Court.

[128]    The importance of a thorough legislative process, culminating in the amendment of the Uniform Rules, is underscored by the need for appropriate engagement between state actors where the proposed amendment might involve the assistance of a foreign authority. For instance, the use of a video-link sanctioned by a foreign authority might create a tension between the Court’s authority and that of the foreign authority where the Court makes a ruling which the foreign authority cannot, or will not, recognise.

[129]    It is for that very reason that the executive is required to engage with other state actors via diplomatic channels to ensure that the appropriate policy framework is put in place. Only after that framework has been appropriately established can the Legislature incorporate it into domestic law, and only then might the Court appropriately apply the procedures thus legislated.

[130]    The appropriate means of facilitating the procedures in courts, given the advent of modern technology, therefore, does not fall upon the shoulders of a single Judge. It is rather the task of legislative and executive functionaries that have been specifically established to investigate, study and make recommendations as to what changes are needed and how they might be appropriately implemented.

[131]    Those investigations and recommendations fall within the exclusive domain of the other arms of government which therefore preclude judicial interference. Indeed, as a general proposition, legislative and comparable processes – such as the modernisation of the Rules of Court – must be left to run their normal and full course before courts will intervene in those processes.[30]

[132]    However, this extraordinary measure is sought in the face of a perfectly adequate alternative remedy for purposes of this trial being rule 38 of the Superior Court Act. I find that there is no need to invoke section 173 of the Constitution whilst the rules provide an option to the applicants.

 

The applicants’ approach breaches the subsidiarity principle

[133]    The innovation sought by the applicants, particularly in the manner they have sought to do it, would violate a fundamental principle of adjudication: the principle of subsidiarity. Importantly, the procedure in which evidence might be led at trial is currently regulated by the Uniform Rules of Court. The Uniform Rules of Court constitute subordinate legislation.[31] They are intended to “secure the inexpensive and expeditious completion of litigation and to further the administration of justice.”[32]

[134]    The subsidiarity principle is an important principle in our constitutional order. Tsele explains:[33]

“[I]n our constitutional jurisprudence, subsidiarity has come to mean that a litigant may not rely directly on a constitutional provision to assert his or her rights if there is legislation that gives effect to that right, and that a litigant cannot seek a general declarator of constitutional principle divorced from the existing legislative or common-law framework. The appropriate course is to identify the relevant law that governs the issue and then to interpret (in the case of legislation) or develop (in the case of common or customary law) it in line with the Constitution. If that is not possible, the law must be declared invalid to the extent of its inconsistency.”

 

[135]    In essence, where a litigant complains that a legislative regime does not cater sufficiently for a particular constitutional right, the remedy is not to invoke the Constitution, but to challenge the legislative regime in issue. In this application, the applicants have not challenged the constitutionality of the Uniform Rules of Court. Indeed, the applicants have not alleged that the Rules are unconstitutional to the extent that they do not provide for evidence to be led via video link abroad, under compulsion under supervision of a foreign authority.

[136]     The relief they seek would have the effect of impliedly declaring the Rules constitutionally deficient. This approach is impermissible – not least because it ignores fundamental principles of constitutional interpretation. The principle of subsidiarity requires that a party rely on the lower norm, which regulates or should regulate the subject matter in issue.[34] In Mazibuko v City of Johannesburg,[35] O’Regan J explained that “where legislation has been enacted to give effect to a right, a litigant should rely on that legislation in order to give effect to the right or alternatively challenge the legislation as being inconsistent with the Constitution”.[36]

[137]    In this application, the lower norm is the Uniform Rules of Court. To the extent that the applicants are aggrieved by the failure of the Rules to cater for the leading of evidence via video link under compulsion and supervision of a foreign authority, their recourse ought to have been a constitutional challenge of the Rules as falling short of constitutional standards.[37]

[138]    In Bank of Baroda,[38] Fabricius J observed that the subsidiarity principle also applies to the Uniform Rules. In that matter, the Court refused to grant relief on the basis of inter alia section 173 of the Constitution since granting the relief sought would violate the subsidiarity principle. In this regard, the Court said:

“The relief, if granted, would also breach the subsidiary principle in that, as I have said, neither the Practice Manual for this division, nor the Uniform Rules of Court nor the Superior Courts Act of 2013 makes any provision for the granting of ‘interim-interim’ relief. The rights in s 34 of the Constitution are given effect to, inter alia, by the Uniform Rules of Court: see Giesecke & Devrient Southern Africa (Pty) Ltd v Minister of Safety and Security  2012 (2) SA 137 (SCA) para 24. In this context the principle of subsidiarity means that where legislation gives effect to constitutional rights, it is impossible to go behind that legislation by relying on the Constitution directly. A litigant's remedy is to attack the legislation for its deficiency. The regulatory practice of this division was indeed criticised by Mr Daniels, but not in the founding affidavit or by way of the relief sought.”

 

[139]    In the absence of a challenge to the validity of the Rules, on the basis that they “fall of short of constitutional standards”, this Court cannot properly come to the aid of the applicants. In fact, to do so, would – as the Constitutional Court has observed – impliedly impugn the validity of Rules, without there having been a direct constitutional attack. Apart from the doctrinal flaws in such an approach, the Constitutional Court has explained the practical difficulties that would result if our Courts were to adopt an approach such as the one the applicants seek this Court to adopt. Allowing the applicants to obtain the relief they seek through direct reliance on section 173 of the Constitution, would have the effect of impliedly impugning the validity of the Uniform Rules.

[140]     While the Court does have limited latitude to depart from requiring litigants to comply with the subsidiarity principle, and the Rules, exceptional reasons must be given in order to persuade a court to act outside the powers provided for specifically in the rules.[39]

[141]    The rules do not expressly provide for evidence to be led by means of video-link abroad under compulsion and supervision of the foreign jurisdiction. Accordingly, the applicants must advance strong grounds why they cannot obtain adequate alternative redress under the rules as they are presently couched, in particular rule 38. They have failed to substantiate such grounds.

 

Receipt of evidence via video-link: Co-operative witness

[142]    The applicants contend in their heads of argument that the representatives of the entities referred to in the Letters of Request attached to the Notice of Motion who are required to testify, fall into the following categories:

142.1.    those who have indicated that they are willing to testify in the proceedings, but are not prepared to travel to South Africa to do so (“category 1”);

142.2.    those who have hitherto co-operated with the legal representatives of the Applicants and have expressed a willingness to testify, provided that the Applicants secure the issue of process from a Court in the foreign countries in which they reside, requiring them to furnish testimony in the matter (“category 2”);

142.3.    those who have withheld their cooperation from the legal representatives of the Applicants and who have not committed to testifying on behalf of the Applicants, whether in South Africa, or for that matter elsewhere (“category 3”);

142.4.    those who have indicated that they are not prepared to testify at all (“category 4”).   

[143]    It is clear from the applicants’ categorisation that categories 2 to 4 require various degrees of compulsion by the courts in the foreign jurisdiction.

[144]    Representatives of Computershare CI, Computershare Bristol and Credo Capital, resort under category 1.

[145]    An analysis of the evidence of Computershare CI reveals that it requires to be subpoenaed by the Competent Judicial authority in Jersey and ought therefore properly to be categorised in category 2.

[146]    Computershare Bristol and Credo Capital appear to be entities willing to co-operate in the process. No provision is made in the notice of motion for category 1 witnesses. The notice of motion and the relief formulated therein, is aimed at securing the viva voce evidence and documentary evidence of witnesses who require a court process (such as a subpoena) to attend a hearing and to produce the requested documentation under compulsion.

 

Conclusion

[147]    This application relates to the procurement of evidence from witnesses under compulsion by, and under supervision of courts in four foreign jurisdictions. The criticisms reflected in this judgment do not apply to the evidence of witnesses who would co-operate in testifying via video-link. The scope of this judgment is limited to the specific relief sought herein. I record this expressly as the parties have, by agreement, chosen to certify this matter a Commercial matter in terms of the relevant practice directive.  In terms of paragraph 1 of Chapter 4 all matters are to be dealt with in line with broad principles of fairness, efficiency and cost-effectiveness. I would, prima facie, be inclined to receive the evidence of a witness who would be willing to co-operate with the transmission of his/her evidence via video link, as did those in the quartet of cases, if the interests of justice required it. I have therefore, refrained from dealing with the arguments summarised in paragraph [16] hereof.[40] I have also not dealt with the arguments raised in paragraphs [21] and [22] hereof as it is not necessary by virtue of the other findings.

[148]    As a matter of principle, a court should aid the receipt of evidence. In that regard, if there is a lacuna in the rules, the court should invoke section 173 of the Constitution but then only within the framework discussed hereinbefore.

[149]    I am refusing this application for a number of reasons as appears from the above, these, in summary, include:

149.1.    The parties have, by agreement, had this matter certified a Commercial Court matter in terms of the Commercial Court Practice Directive. The parties have yet to embark on the process envisaged in chapter 4 and in particular, paragraphs 3b, 3c, 4b and 4c. Once this process, and the process independently embarked upon by the parties to extract admissions, has been completed, an ‘audit’ can be done to establish which facts still fall to be proved. The applicants have contended in their founding affidavit that ‘the witnesses will in essence be addressing the contents of documents in respect whereof….there can be little scope for contention…..the witnesses ….are secondary and uncontroversial. They will largely give evidence of a formal nature.’  This is the type of evidence that is most suited to receive by way of a commission de bene esse and interrogatories.

149.2.    There exists no enabling legislation which clothes this court with the requisite power to grant this type of relief.

149.3.    This court is prohibited from extending reciprocity to a foreign court in the form requested.

149.4.    The orders, if granted, would constitute a brutum fulmen in such foreign jurisdictions.

149.5.    The applicants have not established any justiciable basis upon which this Court can make the representations of law and of fact detailed in the individual Letters of Request.

 

Order

[150]    I accordingly grant the following order:

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

 

                                                               =

                                                                                            I OPPERMAN

                                                                            Judge of the High Court

                                                          Gauteng Local Division, Johannesburg

                                        

 

Counsel for the applicants: Adv G Farber SC and Adv N Konstantinides SC

Instructed by: Van Hulsteyns Attorneys 

Counsel for the first respondent: Adv A Subel SC, Adv Shanee Stein SC,

Adv JJ Meiring and Adv Itumeleng Phalane

Instructed by:  Werksmans Attorneys

Date of hearing: 16 & 17 September 2019

Further heads of argument: 29 September 2019 and 7 October 2019

Further affidavits and responses: 1 October 2019, 18 October 2019 and

7 November 2019

Date of Judgment: 28 November 2019                                                                                             

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