Richard John Payne v The Director of Public Prosecutions, Gauteng Local Division and Others, Gauteng Division of the High Court, Pretoria, Case No 2024/080260, judgment delivered electronically in 2025 (unreported).
Although the matter is marked “REPORTABLE: NO” and “OF INTEREST TO OTHER JUDGES: NO”, the judgment attains practical significance because it applies the Supreme Court of Appeal’s decision in Schultz v Minister of Justice to an outgoing extradition request already acted upon by a foreign court. Its discussion of the constitutional location of the power to initiate extradition, the interplay between domestic and international law, and the status of an SCA judgment while an out-of-time Constitutional Court application for leave to appeal is pending will be of persuasive value in future extradition and separation-of-powers disputes. In addition, the judgment clarifies when South African courts should stay review proceedings pending foreign or Constitutional Court processes, thereby contributing to procedural jurisprudence.
Schultz v Minister of Justice and Constitutional Development and Others (76/2023) [2024] ZASCA 77 (23 May 2024); Richard John Payne v The Government of the Republic of South Africa [2025] EWHC 1043 (Admin); the unreported decisions of District Judge Robinson (14 March 2024) and the Secretary of State for the Home Department (7 May 2024) were also canvassed as background.
The Constitution of the Republic of South Africa, 1996; Extradition Act 67 of 1962; Legal Practice Council Code of Conduct for all Legal Practitioners, Candidate Legal Practitioners and Juristic Entities, rule 61.11; Extradition Act, 2003 (United Kingdom) as a comparative, contextual instrument.
Rule 61.11 of the Legal Practice Council Code was the only formal procedural rule directly relied upon.
The applicant, Richard John Payne, asked the High Court to review, set aside and declare unconstitutional an outgoing request, dated 26 September 2022, through which the Gauteng Director of Public Prosecutions sought his extradition from the United Kingdom. He contended that, under the Constitution and the Extradition Act, only the Minister of Justice may issue such a request and relied heavily on the Supreme Court of Appeal ruling in Schultz which had reached the same conclusion. The National Prosecuting Authority respondents requested that the review be stayed pending their prospective Constitutional Court challenge to Schultz, but they filed that application more than three months late and ultimately withdrew it. After considering the pending UK proceedings (Payne UK) and an interlocutory application under rule 61.11 to place those materials before the court, the High Court refused the stay and granted the substantive review, holding that Schultz remains binding and dispositive until overturned.
First, whether an outgoing extradition request can lawfully be made by a provincial Director of Public Prosecutions without the Minister’s involvement. Second, whether domestic review proceedings should be stayed where an out-of-time application for leave to appeal against the precedent on which the review rests is pending in the Constitutional Court. Third, the propriety of admitting post-hearing foreign judgments and affidavits under rule 61.11.
The court held that the power to initiate an outgoing extradition request vests exclusively in the Minister of Justice, not in the prosecuting authority. Because the NPA’s Constitutional Court application was filed late and then withdrawn, Schultz is authoritative and must be followed. The stay was accordingly refused, the extradition request was declared unconstitutional and invalid, and no costs order was made in the interlocutory rule 61.11 proceedings as both sides placed helpful material before the court.
The Director of Public Prosecutions for Gauteng requested the applicant’s extradition from the United Kingdom on 22 September 2022 so that he could stand trial on racketeering, fraud, corruption and money-laundering charges in South Africa. The request was prepared and signed by the DPP without reference to, or consent from, the Minister of Justice; it asserted that prosecutorial powers under section 179(2) of the Constitution were sufficient authority.
The applicant challenged the request in the UK proceedings on the ground that it lacked lawful South African authorisation. Nevertheless, District Judge Robinson ordered his surrender on 14 March 2024 and the Secretary of State confirmed that decision on 7 May 2024. These rulings pre-dated the SCA’s judgment in Schultz.
After Schultz was delivered on 23 May 2024, the applicant instituted the present review in South Africa. The NPA respondents responded with an application to stay the review pending their intended Constitutional Court appeal and condonation application. They later purported to withdraw that appeal but then indicated an intention to pursue it only on the question of retrospective effect.
On 2 May 2025 the applicant invoked rule 61.11 to place the UK High Court decision in Payne UK (30 April 2025) and the NPA filed a supplementary affidavit attaching its UK application for leave to appeal. The High Court admitted these materials when preparing the present judgment.
The court was required to decide whether the extradition request was ultra vires because it emanated from the DPP rather than the Minister, and, if so, whether it should be declared invalid ab initio. A preliminary question was whether the review should be stayed until the Constitutional Court disposed of the late and partially withdrawn Schultz appeal. The court also needed to determine whether it could consider post-hearing foreign judgments and affidavits in terms of rule 61.11.
In three detailed strands of reasoning the court accepted the applicant’s submissions. First, it analysed the constitutional allocation of executive power over international relations, noting that section 84 and the foreign affairs prerogative reside in the national executive. Section 179 establishes the National Prosecuting Authority for domestic prosecution, not external diplomatic acts such as requesting extradition.
Secondly, the court examined the Extradition Act 67 of 1962. It contrasted incoming extradition procedures—where a magistrate and the Minister both play roles—with the absence of any statutory grant of power to the NPA to initiate requests abroad. Reading the Act purposively, it concluded that Parliament intended the Minister alone to exercise South Africa’s rights and obligations on the international plane.
Thirdly, following Schultz, the court reiterated that an outgoing request “necessarily operates at the international level” and therefore engages the executive’s foreign affairs competence. Under the doctrine of precedent, Schultz bound the High Court unless and until set aside. Because the NPA’s Constitutional Court application was out of time and had effectively been abandoned, the likelihood of that decision being overturned was remote and could not justify a stay.
Regarding rule 61.11, the court held that admitting the UK judgment and supporting affidavit would assist, rather than prejudice, its adjudication. As both sides ultimately agreed to the documents’ admission, no costs order was warranted.
The stay application was dismissed. The extradition request dated 26 September 2022 was reviewed and set aside and declared unconstitutional, invalid and of no force and effect. The respondents were directed to pay the applicant’s costs of the main proceedings jointly and severally, including the costs of two counsel, while no order as to costs was made in the interlocutory rule 61.11 application.
A request for extradition is an exercise of international relations and therefore falls within the exclusive competence of the national executive acting through the Minister of Justice. Prosecutorial independence under section 179 of the Constitution does not extend to the making of outgoing extradition requests. An SCA judgment remains binding on all lower courts until a higher court sets it aside; a late or withdrawn application for leave to appeal does not suspend its operation. South African courts may, in appropriate cases, admit post-hearing authorities or material under rule 61.11 where all parties consent or where it would assist in the just resolution of the matter without unfairness.