The issue is whether Tulip Diamonds FZE (“Tulip“), an entity incorporated in Dubai, has legal standing to challenge a decision by the Minister of Justice and Constitutional Development to give assistance to the Belgian authorities following a Letter of Request for such assistance sent under the International Co-operation in Criminal Matters Act 75 of 1996 (“the Act“).  The documents are required in a criminal investigation into a Belgian company, Omega Diamonds. The South African authorities were requested to search and seize certain documents from a South African company, Brinks (Southern Africa) (Pty) Ltd (“Brinks“), related to shipments of diamonds from Angola to Tulip in Dubai.  The SCA held that Tulip had no standing to challenge the decision and the issuance of a subpoena by the Kempton Park Magistrate’s Court requiring Brinks to produce the relevant documents, because Tulip did not have a sufficient interest in those documents.  According to the SCA, Tulip did not show that the documents in question were confidential or that Brinks had a contractual duty to preserve their confidentiality, and so Tulip had no proprietary right in the documents.  

In the Constitutional Court, Tulip argued that this is too narrow a view of confidentiality and that Tulip’s right to privacy, considering that the documents reveal private details of its business, should be sufficient to grant Tulip standing to challenge the decision.

The majority of the Constitutional Court, in a judgment authored by Van der Westhuizen J, in which Moseneke DCJ, Froneman J, Khampepe J, Mhlantla AJ and Skweyiya J concurred, dismissed Tulip’s appeal, agreeing with the SCA that Tulip had not shown that it had an interest in the information requested. In addition, even if such an interest existed, Tulip had not shown any of its interests would be directly affected by the Respondents’ decisions. 

Justice Jafta wrote a dissenting judgment, in which Justices Nkabinde and Zondo concurred, finding that Tulip had established standing, under the common law, on the basis of its purported right to ownership over the documents sought, and under the Constitution based on its threatened rights to privacy and confidentiality. After finding there was standing, the minority turned to the merits and found that the subpoena was invalid as the Magistrate did not have jurisdiction. 

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