Tuesday, February 20, 2007

By Armando Aguiar


The purpose of this article is to articulate the means by which evidence, in civil and commercial matters, can be obtained by South African litigants from foreign countries, by foreign litigants from South Africa and also to highlight the difficulties faced by South African and foreign litigants in obtaining such evidence.


There are several statutes regulating this area of law, each of which will be briefly examined, namely:

The Foreign Courts Evidence Act, No. 82 of 1962;

The Supreme Court Act, No. 59 of 1959;

The Magistrates Court Act, No. 32 of 1944; and

The Hague Convention on the Taking of Evidence Abroad Civil and Commercial Matters.

The Foreign Courts Evidence Act, No. 82 of 1962 ("FCA")

If a party or court abroad wishes to obtain evidence from a witness present in South Africa, the FCA provides that an application must be lodged with a judge of the High Court. If the evidence is to be used in a Magistrate’s Court in Botswana, Lesotho, Malawi, Namibia, Swaziland or Zimbabwe, the FCA allows a Magistrate’s Court in one of those countries to make the application to a magistrate in South Africa.

The Court, irrespective of whether it is a High Court or Magistrates Court, hearing the application may then grant an order that a witness or witnesses be examined. Once the order is granted, the Court will appoint an individual ("the Appointee"), usually a magistrate, to conduct the examination of the witness.

The witness may be subpoenaed, to appear and give evidence or produce a book, document or object. The Appointee administers an oath or affirmation to the witness and takes the evidence upon interrogatories or otherwise as requested. The Appointee then certifies the evidence as correct and transmits the evidence with his certificate to the Registrar of the Court, who will then forward the evidence to the Director General Justice for transmission to the foreign state.

The Supreme Court Act, No. 59 of 1959 ("SCA")

· For someone wanting to obtain evidence in South Africa, another method is available, under Section 33(1) of the SCA. The foreign authority concerned must send a letter of request to the Director-General: Justice requesting a hearing before a Commissioner to obtain such evidence.

The Director General: Justice will consider the request. If he believes that effect should be given thereto, without the need to make application to Court requesting permission to obtain such evidence, he will forward the letter of request to the Registrar of a provincial or local division which is in a position give effect to the letter of request.

The Registrar submits the letter of request to a judge in chambers, who appoints a Commissioner to obtain the evidence. The Commissioner will summon the witness to appear before him and will put the interrogatories, which have been framed by the foreign State, to the witness. Once the Commissioner has obtained the evidence he will certify the correctness thereof and submit his certificate and the evidence to the Registrar of the Court.

The Registrar then returns all relevant documents, duly verified in accordance with the Rules of Court, to the Department of Justice for transmission to the foreign authority.

· Rule 38(3) of the High Court Rules of Court deals with evidence taken on commission. It applies to evidence, whether in South Africa or abroad, where the witness’s attendance cannot be procured at Court.

It provides, inter alia, that a party to proceedings before a Court may apply to Court for an order directing that the evidence of a witness may be obtained on Commission. The Court, using its discretion may either grant or refuse the application. The Court will only grant such application after pleadings have closed.

Once the Court has granted the order, it will appoint a Commissioner to execute the terms of the order. The Registrar of the Court certifies the order and transmits a copy of his certificate to a Commissioner together with the interrogatories, duly and lawfully framed, which the Commissioner is to put to the witness.

The Commissioner, upon receipt of the certificate and interrogatories, will summon the witness to appear before him. He puts the interrogatories to the witness and takes down the witness’s answers as evidence. The Commissioner then certifies the evidence as correct and transmits such evidence to the Registrar of the Court where the action is pending.

Where the evidence of any person is to be taken before any Commissioner within the Republic, such person may be subpoenaed to appear before the Commissioner to give evidence as if at the trial. A witness who has been so subpoenaed to appear before a Commissioner and fails to appear or to give evidence or to produce documents, is liable to the same penalties as any other witness who fails to obey a subpoena or fails to give evidence.

Where 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.

Rule 38(3) envisages the possibility that the Court may direct the Commission to conduct the examination by interrogatories and cross-interrogatories; however the usual and normal position is that the evidence is adduced upon oral examination before the Commissioner. A witness gives his evidence under oath or affirmation in the presence of the parties and their legal representatives, and the witness shall be subject to cross-examination and re-examination.

A Commissioner does not have the power to decide on the admissibility or relevance of evidence. The ordinary practice, enshrined in the provisions of Rule 38(3), is for the Commissioner to take the evidence as tendered, noting any objection taken thereto and reporting to the Court that the objection was taken and noted by him. When the record of the evidence taken by the Commissioner is presented to Court, any lawful objection pertaining to the admissibility or relevance of such evidence may be raised and must be decided by the Court hearing the matter.

The Magistrates Court Act, No. 32 of 1944 ("MCA")

Section 53 of the MCA deals with commissions de bene esse. It allows a party to proceedings pending before a Magistrates Court, upon notice to the other party, to request that the Court allow evidence to be taken from a witness whether in South Africa or abroad.
If the witness is within the Republic, the Commissioner is usually a magistrate, as no fees are chargeable by such officials for taking evidence on interrogatories or on commission for any Magistrate’s Court of the Republic. If the witness is outside the Republic, a barrister or solicitor is usually appointed as Commissioner.

A Commission is usually not granted until the pleadings are closed; until then it is not known what points are in dispute and therefore what evidence will be relevant.
It will, therefore, in most cases be convenient to make a special application after close of pleadings for the appointment of a Commissioner, and not to set down the case for trial until the evidence has been returned, so that the whole matter may be dealt with at one sitting.
In view of the fact that the Magistrates Court is subservient to the High Court, the procedure with regards to the subpoenaing of witnesses to procure evidence, as described in High Court Rule 38 above, would apply mutatis mutandis to Commissions de bene esse.

The Hague Convention on the taking of Evidence Abroad in Civil and Commercial Matters ("the Convention")

So far as litigants in South Africa are concerned, evidence available in a foreign state may be obtained only with the permission of that state, because South Africa cannot compel foreign courts to facilitate proceedings taking place in South Africa.

The traditional method for obtaining such evidence is via our diplomatic and consular officers, who are entitled to execute letters of request or evidentiary commissions in the state in which the evidence is requested.

The Convention provides an alternative to the use of consular channels as a means of obtaining evidence from abroad and it obliges state parties to permit the taking of evidence within their borders.

The Convention provides for two methods of obtaining evidence. These are:

Firstly, by means of letters of request whereby a litigant, in civil or commercial judicial proceedings, may apply to a court to have a request issued for evidence from abroad. The litigant must establish the material nature of the evidence; the witness’s presence abroad; and the fact that the witness’s presence cannot be procured.

States that are party to the Convention must designate a central authority to receive the letters of request from a requesting state and to transmit the letters to the authority competent to execute the request. In South Africa, the designated central authority is the Director-General of the Department of Justice.

It is important to note that when executing the request, the relevant authority must apply its own law with regards to the methods and procedures to be followed. Thus, for example, the methods used for compelling the attendance of witnesses and the rules of privilege are regulated by the law of the requested state.

However, the requesting state may ask that a special method or procedure be followed, provided that such method or procedure is compatible with the internal law of the requested state and that the performance thereof is not impossible as a result of its internal practice and procedures, or due to practical difficulties.

In terms of Article 12 of the Convention a letter of request may be refused where it does not fall within the function of the judiciary of the requested state; and where the requested state considers that its sovereignty or security will be prejudiced.

The second method of obtaining evidence in terms of the Convention, is whereby a special commission is appointed by the requesting state but intended to operate in the requested state. An official in the consular office of the requesting state or some other duly appointed delegate may preside over the commission.
Evidence must be obtained in a manner that is compatible with the internal law of the requested State. Witnesses may not be compelled to attend unless the requested state gives permission and when doing so, the requested state may impose such conditions as it considers necessary. The only ground for refusing to allow a commission to operate is incompatibility with the law of the requested state.
South Africa acceded to the Convention on 8 July 1997, and the Convention’s entry into force was 6 September 1997. The Convention however, has not been incorporated into South African domestic law and as a result individuals in South Africa cannot rely on the Convention when seeking to obtain evidence from foreign jurisdictions.(Pan American Airways Inc v SA Fire and Accident Insurance Co Ltd 1965 (3) SA 150 (A)).
The South African Law Reform Commission ("the SALRC") was asked by Parliament to investigate the question of "Consolidated Legislation Pertaining to International Cooperation in Civil Matters". In its 2004 Discussion Paper, No 106 of Project 121, the SALRC identified, inter alia, two major problems in South African law which curtails the law in this respect.

Firstly, there is a confusing range of possibilities confronting the foreigner who wants to obtain evidence in South Africa: application may be made directly to the High Court or to a magistrate’s court or to an official in the Department of Justice.

Secondly, the preoccupation in South African law with applications by foreigners has resulted in South African litigants being neglected. It is also not clear as to what law applies to regulate the methods for examining witnesses and the privileges they can claim.

The SALRC also noted that South Africa appended certain reservations to the Convention, two of which are the exclusions of articles 15 and 16 which permit foreign diplomatic or consular officials in South Africa to take evidence from nationals of the states they represent (or the nationals of a third state); and the exclusion of the letters of request for obtaining pre-trial discovery of documents under article 23, as permitted in certain common-law jurisdictions.

By excluding articles 15 and 16 South Africa has ensured reciprocal exclusions by all other parties to the Convention. Thus, South African consuls based in foreign states will have no right to take evidence on behalf of South African litigants requesting evidence from witnesses in such states.

Another problem identified is that it is not clear whether the Convention takes precedence over the domestic law of the state parties. Also, the Convention does not fully regulate the type of questions to be put to witnesses. Unrestricted questions may lead to fishing expeditions.
The SALRC has recently furnished a Report on the Consolidated Legislation Pertaining to International Cooperation in Civil Matters to Parliament, highlighting the various problems illustrated above, and its recommendations to overcome these problems. This Report unfortunately is not available to the public until Parliament has responded thereto.

The SALRC’s discussion paper (2004, No. 106 of Project 121) emphasised that it is essential, in order to assist South African litigants in obtaining evidence from abroad that the Convention be incorporated into South African domestic law. Further, any reservation by South Africa to the Convention should be incorporated into South African domestic law by stating that South African courts will not comply with foreign requests unless they are compatible with South African law.

It is evident that there is a need to revise and consolidate the legislation regulating this area of law and to provide a uniform procedure. The uniform procedure must be applicable in all South African courts and must protect the interests of all litigants irrespective of whether they are South African litigants, seeking evidence from abroad or foreign litigants seeking evidence from South Africa.