Foreign Courts Evidence Act
GOVERNMENT GAZETTE EXTRAORDINARY, 29TH JUNE, 1962. 21
No. 80, 1962.]
.ACT To provide for the obtaining of the evidence of persons in the
Republic by courts of law outside the Republic and for other incidental matters. ·
(English text signee! by the State President.) ·(Assented to 22nd June, 1962.)
BE IT ENACTED by the State President, the Senate and the . House of Assembly of the Republic of South Africa, as follows:-
1. In this Act, unless the context otherwise indicates- Definitions. "magistrate" includes an additional magistrate and
an assistant magistrate and, in relation to the area in the territory of South-West Africa beyond the Police Zone, as defined in section three of the Pro- hibited Areas Proclamation, 1928 (Proclamation No. 26 of 1928 of that territory), a native commis- sioner, an assistant native commissioner and any officer in charge of native affairs;
"Republic" includes the territory of South-West Africa.
2. (I) If upon an application in any provincial or local Supreme Court division of the Supreme Court of South Africa, it appears may ?rdf.r f to the court or any judge. that' a court of law of competent ;I~:~~ai~on ° jurisdiction outside the Republic, before which any civil Republic in or criminal proceedings are pending, is desirous of obtaining c~J:!nectio':l 'Yith the evidence in relation to such proceedings of any witness ClVll or ~nnunal
· h" h · · · d" · f h d" · · h · d proceedmgs wit m t e JUriS Ictlon o sue · !VISIOn, t e. court or JU ge pending in hearing the application may grant an order for the exami- foreign court. nation of such witness before a person named in such order, who, in the case of criminal proceedings, shall be a magis- trate . . (2) Such an order shall not be granted. if it appears to the
court or judge that the evidence required · i.s in connection with criminal proceedings of a political character or that the witness is an accused person in the proceedings concerned.
3. Any magistrate shall, upon request of any judicial officer Magi~tra~e to take performing the functions of a magistrate in any territory e~amma.twn of . mentioned in the First Schedule take the examination of ~ttness m ~epu~hc
. . . h" h" f •. . d" . . . m connectiOn wtth any Witness Wit m IS area o JUriS !Ctlon, m connection civil proceedings with any civil proceedings pending in the court of such judicial pendin~ in cer~ain officer. . cou!ts t.n certam
tern tones.
4. (1) Any person required to take an examination under E:'amination of section two or three shall cause any person whose evidence wttnesses. is required, to be summoned to appear and give evidence or produce any book, document or object before him and upon his appearance shall administer an oath or affirmation to him and take his evidence upon interrogatories or otherwise as ordered or requested, as if he were a witness in a magistrate's court in proceedings similar to those in connection with which his evidence is required.
(2) Any person so to be summoned shall be summoned in the same manner as a person may be subpoenaed to appear before such a court in such proceedings.
(3) If at any time it appears to the person taking the exa- mination that the evidence required is in connection with criminal proceedings of a political character or that the wit- ness is an accused person in. the proceedings concerned, he shall not proceed with the examination.
(4) Upon completion of the examination the person taking it shall transmit to the registrar of the court which granted the order for the examination or to the judicial officer who requested it, the evidence certified by him as correct, together with a certificate showing the amount paid to the witness in respect of the expenses of his appearance, the cost of the issue and service of the process for summoning the witness to appear and any other costs incurred in respect of the exami- nation.
I
I
GOVERNMENt GAZETTE EXTRAORDINARY, 29TH'JUNE, 1962. 23
'5. (1) ~Any' person required to give evidence at an exarniiia- Rights and •· tion under section four shall 1 be entitled- to payment of such ex;.; p~ivileges of ' ' penses and fees as are payable to witnesses in a· magistrate's witnesses. court in proceedings sirnilar·to·those in connection: with ·which his evidence is required. 1 .:: :•.· h ·:~ ' ,_.: '' · - '/:
.!: •'' ., - . (2) In connection with the giving of evidence or ·the pro-
duction of any.book; document or object at such an examination, the law relating to. privilege as applicable to a witness· giving evidence or summonedto.produce a book, document or object in a magistrate's court in such proceedings, shall apply.
_:} ·': ... J: _:: , . ; ,. r: r • J, -· • ·-, l 1 , • : !
· .. 6~: (1) Any. person summoned to appear and give, evidence O!fences by or produce any book, document.· or. object •before; any person witnesses. taking an examination who, without sufficient cause, fails to attend at the time and place specified or to remain 'in atten- dance until the: conclusion· of· the examination or. until he is· excused by the person .taking the examination from further attendance, or. refuses to be sworn or to make affirmation as a witness, or having been sworn or. having made affirma- tion, fails to answer fully and satisfactorily any question put to him," or fails. to produce. any book, document or object in his possession ·or custody or under .his control, which he was summoned to produce; shall be. guilty of an offence and liable on conviction, to a fine not exceeding fifty rand or to imprisonment for a period not exceeding three months.
J • • '
. (2) _Any person who after haying been sworn or ·hav!ng made affirmation, gives false evidence before a person taking an.· examination, knowing such · evidence to be· false or not knowing or believing it to be true, shall be guilty of an offence and liable on conviction to ,the penalties prescribed by law for perjury. .
7~ (l) Whenever a. ~i.tbpoena·'~urporting to~ be issued'hyA~tendan~e of . the. proper Officer Of iJ. COmpetent COUrt Of laW in any' terri~ Wlt~eSS~S In certam tory mentioned in. the Second Schedule for the ·attendance. terntones. in any civil or.' criminalproceedihgsbefore that court of' any person; is received.froni such officer by ariy magistrate within· whose area of jurisdiction such . person 'resides or is, such' magistrate shall, if he is satisfie:i that the subpoena. was law- fully issued, .endorse'. it for' service upon. such person~ :where-; upon it may be served, as ifit were. a. subpoena: issued in the.·. court of such ·magistrate · iri proceedings similar to those in · connection with which it was issued.
(2) Upon service of the subpoena on any person an amount sufficient to cover reasonable expenses to be incurred by him in proceeding to and 'n!turning: from the court named in the subpoena and during his detention at the place where his evidence is to be given,. shall be tendered to: him.
(3) Any pcrs~~ sub~~enaed.u~der this sectioh -~ho, without sufficient cause, fails to attend at the time and place specified in the subpoena, shall be guilty of an offence and liable on conviction to a fine not exceeding fifty rand or to imprison- ment for a period not exceeding three months.
(4) Any magistrate's c~~~ i~ ·wh~se area of jurisdiction the subpoena has been served or the .person :subpoenaed resides, shall have jurisdiction to, try such person' for a con- travention of the provisions ofo sub-section (3) .. ' '
(5) The return of the person who under sub-section (1), is authorized to serve a subpoena showing that service was duly effected, together with a certificate under the hand and seal of the person presiding at the court from which the sub- poena was issued, showing that the person subpoenaed failed, without establishing sufficient cause, to attend as required when called upon, shall, for purposes of sub-section (3), be deemed sufficient proof of such person's failure to attend.
8. No person subpoenaed in any territory mentioned in Witnesses from the Second Schedule to appear before a court in the Republic, certai~ territorie~ and who by virtue of any provision of any law of such terri- attendu~g court m
. . d h II I .1 d" h Repubhc not to be tory IS reqmre so to appear, s a w 11 e atten mg sue court arrested for certain be liable to be arrested upon any civil or criminal warrant matters. for any debt due or offence committed in the Republic before appearing before such court.
•
I GOVERNMENT GAZETTE EXTRAORDINARY, 29TwJUNE, 1962. 25
9. No fees other than disbursements shall be recovered Certain fees not to from any court outside the Republic in respect of the issue be re~overed in or service of any process for the purposes of this Act, unless certam cases. the Minister of Justice otherwise directs or unless the process relates to or has been issued or served in pursuance of an order under section two.
10. The State President may by proclamation in the Gazette State Presiden~ . · amend the First or Second Schedule by the exclusion there- may amend First from ~f any territory or the inclusion therein of any territory ~~~~~1~~ m Afnca.
11. (1) Any powers to make rules under the Supreme Rules. Court Act, 1959 (Act No. 59 of 1959), shall be deemed to include the power to make rules for giving effect to the pro- visions of section two of this Act.
(2) Any powers to make rules under the Magistrates' Courts Act, 1944 (Act No. 32 of 1944), shall be deemed to include the power to make rules for giving effect to the provisions of section three of this Act in the Republic, excluding the territory of South-West Africa.
(3) Any powers to make rules under the Magistrates' Courts Proclamation, 1935 (Proclamation No. 31 of 1935 of the said territory), shall be deemed to include the power to make rules for giving effect to the provisions of section three of this Act in the said territory.
12. This Act shall apply also in the territory of South- Application of West Africa, including that portion of the said territory known Wt i~~uth- as the "Rehoboth Gebiet" and defined in the First Schedule es nca. to Proclamation No. 28 of 1923 of that territory, and the Eastern Capri vi Zipfel referred· to· in sub-section (3) of section three of the South-West Africa Affairs Amendment Act, 1951 (Act No. 55 of 1951).
'
13. (1) The laws specified in the Third Schedule are hereby Repeal and repealed to the extent set out in the fourth column thereof. arlendment
(2) The Schedule to the Fugitive Offenders and Neighbouring 0 aws. Territories Evidence Proclamation, 1920 (Proclamation No. 26 of 1920 of the territory· of South-West Africa) is hereby amended by the deletion of'all the words after the words "South Africa".
14. This Act shall be called the Foreign Courts Evidence Short title_ and Act, 1962, and shall come into operation upon a date to be date of fixed by the State President by proclamation in the Gazette. commencement.
First Schedule; -
Basutoland. The Bechuanaland Protectorate. The Federation of Rhodesia and Nyasaland. The Swaziland Protectorate.
Second Schedule.
Basutoland. The Bechuanaland Protectorate. The Federation of Rhodesia and Nyasaland. The Swaziland Protectorate.
'
I
GOVERNMENT GAZETTE .EXTRAORDINARY, ·29m' JUNE, I 962. 27
' ~ . . . Third Schedule.
·LAws- REPEALED. ·.
Country or 1 Province.i., ..
No. and year . ,,of.LaW;'·'
Title or subject , ,.,.;L'matter;:; · .,; .. :.·, Extent of repeal.
---.. ~,---.-.. ~.~.-.J,i-.~::--.. ~.~~~ .. ~~:~.-.~-~;- ~' t' :: . . ! ~ ' : ; ' •
United· Kingdom.
·.Do.·
Cape.
Do.
Natal.
Do.
Orange Free State.:
Do.
Transvaal.·
,, 1806 to 1895.: : ! ; Evid~'n&'; Ads;: 1806 to 1895.
-,- . ·:-. ·' '' ''
. J 870 to I 906.: ,;~ :Extradition; Acts;; 1870 ·;,q·;: to 1906.: ·''
44 and 45. Viet, ' :Fugitive Offenders Act; ' -C:·~~- (1~~1). . 1881.~ • ' - .. Act No. i2 of.
;1886.' ' ) ' ·,,
.... ' ' ~ :ActNo. 13·of.
',1899 ..
. Neighbouring' States · . and· Colonies, Wit-
nesses · Compulsory ·Attendance · Act,
::, 1886; '' :·]._';!. • r' •• j • ~ •
Neighbouring 1 , States . and; Colonies Wit-
, . : nesse's Interrogatories ·Acvts99. · ~
·In so far as they apply in the . Rep.ublic in relation to the obtaining of the evidence of persons in the Republic by courts or tribunals outside the Republic.
Section: ili·el!ly-four of the Extradition Act, 1870, and
. section five of the Extradition Act, 1873, in so far as they apply !n the Republic.
· Secti~n.)ifteen in so far as it ·applies in the Republic} · -· ,.
',\ .·;I '' ''
In so far: as it has not been repealed.
··l
In. so· far- as it has not been . repealed._.
Act No. 19 of 1899.
Neighbouring Colo- The whole. . .. nies and States Wit- .. riesses Jnterrogato'ries ~ • Act, 1899. ·
Act No .. 12 of· .Witnesses Attendance In so far as it has not beer_.·_ . repealed. 1906. I; ' A~t. 1906;
Chapter VII' cif the Law Book;
Ordinance'!No. 15 of 1905.::,
· Ordinance·' No .. 2 of 1906.
'Compelling witnesses. 'resident · in · · thi~ ·
.: State. to appear· in courts outside this State. · ·
1 J ~- ; '
Neighbouring Colonies' , . • Witnesses ·. , Interro~ , , gatories Ordinance,
1?0?·,,. ; :·, .. ~' .i
The whole.
In so far as it has not been . :, repealed.
Neighbouring Colonies'' In so far as it ha~ not teen .Evidence Ordinance. '; .. repealed. 1906;,._,_ ""'! c: " :' '
. f
' • ' -.I ~: • I .'
. i, ;:·.: ,' !1' _;.; .-: .: •'' ')) .-_. i '·.; :. /
' ,,. f,;·;i.'.'. ,'ill.··· ,;• ,, 1.'; '.: j,•••.· '.': .: , :JJ:..•:\
; ' . /: ;; .• f '·; :·; ~· i ' ~ ,-· ; -· , j' . ' ~ ·•
''/ •I: ,·! ,' • ' '. '" . ' '· j !';; / .;;;[:(, ; ''.;:_:_::!
. ! , . '. ;· ~ 1 ~; : ,', ... 1, l '• :: r _..,. :; ! ; • ',l : : ) - ~ ; ; 1
'· .. !,i '1 t)·:.: .:.~··- ·.'
.· ... /.);':: '!',1 ';' ·.1 '.:·:_.·-;, ;_,; . 'l ;,_;,•-
: .'_,;, )_,:1 '·lj: ',; I _.,:
· ·I '·' • :·1 !: J 1) ! · .. /: j : ;~- ; ': l. i . ! ..: :; ~' .I
" ~ :. '-' . ~ : ; ·; . ' ' i : ~ .' ' \ . '
.,_, ·.J :' .... ; ~
; .r ' ~ I' I :i
.;/ i ' ! J I I ~ .;:• __ .1
; __ ,-.-,