n South African Law Journal - Foreign prosecutions, mutual co-operation between states, and the privilege against self-incrimination

Volume 130, Issue 2
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



The principal purpose of this article is to determine the extent to which a suspect, wanted for crimes in a foreign country, may make use of the common law, statutory or constitutional due-process procedures of the South African justice system in order to avoid a foreign prosecution. In particular, the article examines an individual's invocation of the privilege against self-incrimination on the ground that incriminating testimony in a domestic court will result in a reasonable risk of a criminal prosecution within a foreign jurisdiction. A secondary purpose is to show the extent to which a defendant before a domestic criminal proceeding may frustrate the prosecution's attempt to establish a prima facie case by refusing to answer questions on the ground that there is a real and appreciable risk of a foreign prosecution upon forcible repatriation to the country of origin. The invocation of the privilege by a defendant may present a formidable obstacle to South Africa's successful prosecution of organised international crime and other trans-national crime. This problem has only been superficially addressed by our courts, and a review of the law in various Anglo-American jurisdictions reveals a paucity of case precedent and statutory regulation. In order to address the uncertainty in South African law a solution is proposed which incorporates functional elements of a human rights and a utilitarian approach. A solution which allows the witness to invoke a privilege with an extraterritorial dimension in specific and limited circumstances, and one which has been adapted to fit South African constitutional jurisprudence.

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