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[2016] ZAWCHC 50
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Carolissen v Director of Public Prosecutions (A 531/2015) [2016] ZAWCHC 50; [2016] 3 All SA 56 (WCC); 2016 (2) SACR 171 (WCC) (6 May 2016)

IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
CASE
NO: A 531/2015
REPORTABLE
In
the matter between:
DENVER
WAYNE
CAROLISSEN
.........................................................................................
Appellant
And
THE
DIRECTOR OF PUBLIC
PROSECUTIONS
...........................................................
Respondent
JUDGMENT
DELIVERED ON 6 MAY 2016
GAMBLE,
J
et DONEN
,
AJ:
INTRODUCTION
[1.]
The appellant has approached this court, under section 10(1) of the
Extradition
Act, 67 of 1962 (“the Act”), seeking to
appeal against the finding of the magistrate, Kuils River on 22 July
2015 that
he is liable to be extradited to the United States of
America to stand trial in the Federal Court in the State of Maine on
charges
effectively relating to the production and dissemination of
child pornography.
[2.]
The extradition proceedings commenced on 25 November 2014 with the
arrest of
the appellant pursuant to a request from the Government of
the United States of America (“the USA”) on 20 November
2014 for his provisional arrest. On 22 January 2015 the USA formally
requested extradition of the appellant by means of the customary

diplomatic note.
[3.]
The appellant’s first appearance in the Magistrate’s
Court was
on 26 November 2014 when he was remanded in custody
for a bail application on 9 December 2014. On that date he abandoned
his
bail application and the matter was postponed until 13 February,
and thereafter to 20 February 2015, to enable the respondent to

present the requisite documentation to the court in terms of sections
9 and 10 of the Act. This was duly done and handed up to
the court on
the latter date by Adv LJ Badenhorst, a senior State Advocate who has
appeared throughout on behalf of the respondent.
The appellant has
throughout been represented by staff from Legal Aid South Africa - in
the lower court by Ms G Atkins and in this
court by Adv M Calitz.
[4.]
When the matter came before the magistrate again on 24 March 2015,
the appellant
raised the issue of his mental health, alleging that he
had had an earlier referral to Stikland Hospital, Bellville in that
regard.
After considering a report by the District Surgeon, the lower
court sent the appellant for observation in terms of sections 78(2)

of the Criminal Procedure Act, 51 of 1977 (“the CPA”). On
12 May 2015 a full panel of mental health practitioners (consisting

of four psychiatrists and one clinical psychologist) issued a report,
in terms of section 79, stating that the appellant was not
mentally
ill, was not certifiable in terms of the
Mental Health Care Act,
No.17 of 2002
, was fit to stand trial and was able to appreciate the
wrongfulness of the alleged offences and to act accordingly.
[5.]
The psychiatric report provides some useful background information
regarding
the appellant’s personal circumstances which include
that he was then 40 years of age, had been married for 9 years and
had
2 young children, and for a number of years had been employed by
the City of Cape Town as a data capturer. The report records further

that in 2010 the appellant sought assistance from Stikland Hospital,
“
for habitually engaging with internet pornography
”
,
where he received psychological counseling as an out-patient. The
panel was of the view that the appellant fulfilled the criteria
for a
diagnosis of paedophilia having reported a long-standing sexual
attraction to children.
[6.]
No evidence was presented before the magistrate who determined the
matter on
the papers after hearing full argument from both parties.
The principal argument advanced on behalf of the appellant was that
the
alleged offences, while having been committed via cyber crime,
were initiated in Cape Town and that this was where the appellant

should be indicted to stand trial. The magistrate correctly conducted
the proceedings in accordance with the provisions of chapter
20 of
the CPA, which relate to preparatory examinations.
[7.]
It then fell to the magistrate to apply sections 1, 2, 3 and 10 of
the Act
and to determine the following questions after consideration
of all the evidence, namely:
[7.1.]
whether the offence in respect of which appellant was sought by the
foreign state was an extraditable
offence;
[7.2.]
whether the appellant was “liable” to be surrendered to
the foreign State concerned;
and,
[7.3.]
finally,
whether there was sufficient evidence to warrant a prosecution for
that offence in the foreign State.
[1]
[8.]
An “extraditable offence”, in terms of section 1 of the
Act, means
“
any offence which in terms of the law of the
Republic and of the foreign State concerned is punishable with a
sentence of imprisonment
or other form of deprivation of liberty for
a period of six months or more, but excluding any offence under
military law which
is not also an offence under the ordinary criminal
law of the Republic and of such foreign State.
”
[9.]
Liability to be surrendered is subject to section 3(1) of the Act
which provides
as follows:
“
3(1)
Persons liable to be extradited. – (1) Any person accused or
convicted of
an offence included in an extradition
agreement
and committed within the jurisdiction of a
foreign State, a party to such agreement, shall, subject to the
provisions of this Act,
be liable to be surrendered to such State in
accordance with the terms of such agreement, whether or not the
offence was committed
before or after the commencement of this Act or
before or after the date upon which the agreement comes into
operation and whether
or not a court in the Republic has jurisdiction
to try such person for such offence.
” (Emphasis added)
[10.]
Determining what constitutes “
an offence included in an
extradition agreement
” necessitates an assessment of the
Extradition Treaty between the Republic of South Africa and the
United Sate of America.
[11.]
As we demonstrate hereunder, section 10(2) of the Act provides for a
certificate issued by the
appropriate prosecution authority in the
foreign State to serve as conclusive proof that there is sufficient
evidence to warrant
a prosecution in the State concerned.  If
such a certificate is relied upon the magistrate must be satisfied
that it was in
fact issued by an appropriate authority in charge of
the prosecution in the foreign State.
[12.]
Having satisfied himself on the aforementioned questions the
magistrate delivered a considered
judgment and issued an order
committing the appellant to prison to await the decision of the
Minister of Justice and Constitutional
Development (“the
Minister”) with regard to his surrender to the USA. Having been
informed thereof by the magistrate,
the appellant exercised his right
to appeal to this court under sec 10(1) of the Act.
PROCEEDINGS
BEFORE THE HIGH COURT
[13.]
In our view the primary issue raised in this matter involves the
question of whether the offences
with which the appellant is accused
were committed within the jurisdiction of the USA.
[14.]
When the matter was first called before this court on Friday 12
th
February 2016 we indicated to counsel for the appellant and the
respondent that, in addition to the arguments advanced in their

heads, we wished to be addressed on three particular issues. We also
indicated to counsel that, in light of the fact that there
are
certain advocates at the Cape Bar who are known for their expertise
in the area of extradition law, we would welcome the appointment
of
an
amicus curiae
to assist the court in this regard.  Neither
counsel had any objection to this proposal and ultimately Adv. D
Simonsz was
appointed. We are indebted to Mr Simonsz for accepting
the appointment in the best traditions of the Bar, and we wish to
commend
all three counsel for their most helpful written arguments
and comprehensive bundles of authorities.
[15.]
The issues on which we asked counsel to address us are the following-
·
On what basis does the USA have jurisdiction over the alleged crimes
of the appellant?
·
How does the State of Maine in particular have jurisdiction to try
the appellant in this matter?
·
Are the relevant laws of the USA and South Africa similar with regard
to extra-territorial jurisdiction, and if not, what
are the
implications of the differences?
THE
FACTS UPON WHICH THE USA RELIES FOR EXTRADITION
[16.]
The
application for the removal of the appellant to the State of Maine is
founded on the extradition treaty concluded between the
USA and South
Africa on 16 September 1999, ratified by Parliament in November 2000
and published in Government Gazette No 22430
on 29 June 2001 (‘the
Treaty”). The Treaty in turn is sourced in the provisions of
the Act. The application for extradition
is presented in the
customary form comprising the salutation of the USA Secretary of
State
[2]
to the Government of
South Africa, the confirmation by the USA Attorney General
[3]
that Mr Jeffrey M. Olsen is an Associate Director of the
Department of Justice’s Office of International Affairs
(Criminal
Division), and a certification by Mr Olsen that Mr Craig M.
Wolff is an Assistant United States Attorney
[4]
for the District of Maine who has made a duly attested affidavit.
[17.]
Mr Wolff’s affidavit is a detailed document which supports the
request for extradition. The
following paragraphs are relevant at
this stage:
“
3.
As an Assistant US Attorney for the District of Maine, I am
responsible for the preparation
and prosecution of criminal cases. In
the course of my duties I have become familiar with the charges and
the evidence in the case
of
United States v Denver
Carolissen a/k/a Danielle Dickens, case number 2:14-cr-00127-NT
.
4. An
investigation by the US Department of Homeland Security, Homeland
Security Investigations (HSI) revealed that in 2010 and
2012, Denver
Carolissen sexually abused a young girl in South Africa and produced
images of the abuse. In September and October
2014, Carolissen sent
these images, as well as other child pornography images depicting
additional minors engaged in sexually explicit
conduct, to undercover
HSI agents in Maine via the internet. The offences for which
Carolissen is charged, and for which the United
States seeks his
extradition under the Treaty, all carry a maximum penalty of more
than one year in prison.”
[18.]
Mr
Wolff’s affidavit encloses,
inter
alia
,
an affidavit by an agent employed by HSI, Mr David Fife, who explains
that he is involved in the investigation of computer-based
crime and
in particular child pornography and child exploitation.  Mr Fife
says that on September 9, 2014, after using an
undercover internet
address and accessing a so-called “
chat
room”,
[5]
he received a “chat” invitation from the appellant
masquerading under the internet pseudonym “
Danielle
Dickens
”,
to participate in an internet discussion.
[19.]
During the chat Dickens informed Fife that he had many hardcore
pornographic videos to “trade”,
and “private stuff”
depicting a twelve year old girl with whom he had “played”
since she was eight.
“Dickens” sent two
pornographic images depicting the sexual molestation of a child
estimated to be between 6 and 8
years of age, claiming that these
were pictures of a child known to him and that he was the molester in
question.
[20.]
On September 10, 2014 “Dickens” sent Fife a further 10
emails, to most of which
a variety of child pornography images and
videos were attached.  Fourteen such videos depicted children,
said to be less than
eighteen years old, engaged in sexual activity.
Mr Fife’s colleague, a certain Mr Martin Conley, also
corresponded
with “Dickens” to similar effect.  It
is alleged by Mr Fife that the appellant acknowledged responsibility
for
the production of certain of these images and that he invited Mr
Fife to participate in the exchange of further similar material.
[21.]
Mr Fife says that in September 2014 he obtained a search warrant from
the US District Court
for the District of Maine to enable him to
access details of the email account used by “
Danielle
Dickens
”. Through this information he was able to establish
that the account was created in March 2013 using a designated
Internet
Protocol (“IP”) address and that it was set up
by a person who furnished a South African cellphone number.
Evidently,
each computer machine (whether a laptop, desktop or
tablet) has its own unique IP address.
[22.]
Mr Fife says that he reviewed the contents of this account which he
says contained approximately
120,000 emails, almost all of which
pertained to child pornography. One of these emails had been sent to
several recipients in
August 2014.  Attached thereto was a video
depicting an adult male penetrating a young female child with both
his hand and
penis. The lewd title to the video positively asserts
that the appellant was involved in an act of intercourse with the
young victim,
who appeared to be the victim referred to above.
[23.]
In October 2014 the HSI agents contacted South African law
enforcement officials and with their
assistance were able to
establish that the cellphone number associated with the “
Danielle
Dickens”
email account was registered in the name of the
appellant. Follow-up investigations using,
inter alia
, the
Facebook social media platform revealed that the user of the
“
Danielle Dickens
” address lived in the Western
Cape, was employed by the City of Cape Town and was married with at
least one young girl. Through
the records duly subpoenaed in America
from Facebook, Mr Fife was further able to establish a connection
between the “
Danielle Dickens
” email address and
the one that the appellant used on his Facebook page. He also
discovered extensive email contact between
the two email addresses in
which adult pornographic images were transferred. The appellant’s
personal email address was also
linked to the same IP address
referred to above. This IP address was found to be on a computer used
by the appellant at his place
of employment. All of this suggests, at
least on a
prima facie
basis, that “
Danielle Dickens”
is the internet pseudonym of the appellant.
[24.]
The USA authorities procured an arrest warrant from the relevant
court for the District of Maine
for the arrest of the appellant at
his home in Kuils River outside Cape Town.  The basis for the
warrant was that the appellant
was to be indicted in Maine on three
statutory counts of “
Sexual Exploitation of a Minor
”
and five statutory counts of “
Transportation of Child
Pornography
” into the USA.  This warrant was
transmitted to the South African law enforcement authorities who then
acted on it and
took the appellant into custody at his home on
25 November 2014.
INVESTIGATIONS
BY THE SOUTH AFRICAN AUTHORITIES
[25.]
After his arrest the appellant was evidently interrogated by members
of the South African Police
Services (“SAPS”), including
a certain Lt. Col. Heila Niemand. According to Mr Fife (and there is
no confirmatory affidavit
by Ms Niemand) the appellant made a series
of damaging admissions during his interview with Ms Niemand.  These
admissions,
prima facie
, implicate the appellant in the
transmission of a variety of pornographic images over the internet.
Furthermore, they suggest
that, in generating such images, the
appellant committed a number of acts of sexual assault and/or sexual
penetration as contemplated
in the Criminal Law (Sexual Offences and
Related Matters Amendment Act 32 of 2007 (“SORMA”).
A person liable
to be convicted of these offences faces long
sentences of imprisonment and, in the case of sexual penetration of a
minor, a minimum
sentence of life imprisonment.
[26.]
When we postponed the matter on 12 February 2016 we asked the
respondent to provide us with
an affidavit from the SAPS as to the
state of any criminal investigation being conducted in this country
relating to the appellant’s
alleged criminal activities here.
Ms Niemand deposed to an affidavit in Johannesburg on 29 February
2016 in which she informed
the court that she is the commander of the
Provincial Family Violence, Child Protection and Sexual Offences Unit
in Gauteng.
[27.]
According to Ms Niemand a case docket has been opened in South Africa
in which the appellant
is being investigated by a certain W/O Kriel
for “
sexual offences
” and other offences “
relating
to the possession/distribution and manufacturing of child
pornography
”.  She confirms that the local
investigation of the appellant is “
in its final stages
”,
but that he has not been arrested or prosecuted in South Africa for
the offences set out in the extradition application.
Ms Niemand says
that two victims were identified in the local investigation and that
if a criminal trial were to proceed in South
Africa three potential
witnesses from the USA would be required to testify. Finally, she
says that the SAPS are monitoring the
extradition process closely,
and if it does not succeed immediate steps will be taken “
for
the criminal legal
process to run its course
” in
South Africa. In argument Mr Badenhorst confirmed that the police had
been ready to arrest the appellant should the extradition
application
have failed on 12 February 2016. We were given to understand that the
intention of the SAPS has not changed.
PROCEDURAL
STEPS TAKEN IN THE USA
[28.] In his
affidavit Mr Wolff gives full details of the procedural history of
the case in the USA. He explains that the prosecution
of the
appellant has passed the “grand jury” phase.
“
6.
Under the laws of the United States, a criminal prosecution is
commenced when a grand jury returns and files an indictment with
the
Clerk of the United States District Court. Although the grand jury is
part of the judicial branch of the United States Government,
it is an
independent body composed of private citizens. A grand jury is
composed of at least sixteen (16) people whom the United
States
District Court selects at random from the residents of the judicial
district in which the court resides, in this case, the
District of
Maine.
7.
The purpose of the grand jury is to view the evidence of crimes
presented to it by the United States law enforcement authorities.

After independently viewing this evidence, each member of the grand
jury must determine if there is probable cause to believe that
a
crime has been committed, and that the particular defendant committed
the crime. A grand jury returns an indictment when at least
twelve
(12) grand jurors have voted in favour of an indictment. An
indictment is a formal document that charges the defendant with
a
crime or crimes, describes the specific laws that the defendant is
accused of violating, and describes the acts of the defendant
that
are alleged to be violations of the law. After an indictment is
returned, the court will normally issue a warrant for the
arrest of
the defendant.”
[29.]
In the instant case, says Mr. Wolff, the grand jury sitting in
Portland, Maine, issued a criminal
indictment on 4 November 2014
charging the appellant with three counts of “
Sexual
Exploitation of a Minor
”, in violation of Title 18, United
States Code, Sections 2251(c) and (e), and also five counts of
“
Transportation of Child
Pornography”
in
violation of Title 18, United States Code, Sections 2252A(a)(1) and
(b)(1), and 2256(A)(8).  Evidently contraventions of
the former
section are punishable with imprisonment of not less than 15 years
and not more than 30 years, while contraventions
of the latter
section attract prison sentences of not less than 5 years and not
more than 20 years imprisonment. In addition, fines
of up to US$
250,000 may be imposed in each case.
[30.]
Mr Wolff points out that the indictment was issued by the Clerk of
the Court in Maine and a
copy thereof is attached to his affidavit.
Also attached to his affidavit are extracts from the relevant
sections of Title 18 of
the United States Code under which the
appellant is charged in the USA.   It is apparent that the
violation of these
statutes constitutes a felony under USA law.
Sections 2251(c) and 2252A (a)(1) were duly enacted law of the USA at
the times
when the offences were committed and the indictment filed,
and when Mr  Wolff deposed to his affidavit.  In light of
the foregoing it seems to us that the requisite procedural steps as
required by the law of the USA have been taken and that there
is
nothing at this stage to gainsay the allegation that the warrant of
arrest for the appellant was lawfully issued in the State
of Maine.
[31.]
Sec 10(2) of the Act makes provision for the foreign state requesting
extradition to provide
a certificate to the court considering the
extradition application attesting to the fact that the requesting
state has at its disposal
evidence that would sustain a prima facie
case against someone in the position of the appellant. That section
reads as follows
–
“
10(2)
For purposes of satisfying himself or herself that there is
sufficient evidence to warrant a prosecution in the foreign State
the
magistrate shall accept as conclusive proof a certificate which
appears to him or her to be issued by an appropriate authority
in
charge of the prosecution in the foreign State concerned, stating
that it has sufficient evidence at its disposal to warrant
the
prosecution of the person concerned.
”
[32.]
Such a certificate is indeed annexed to the extradition application
and was placed before the
magistrate. The material part thereof reads
as follows:
“
In
relation to the request, I, Craig M. Wolff, certify that:
I
am employed by the United States Department of Justice as an
Assistant United States Attorney for the District of Maine. I am
in
charge of the prosecution of Denver Carolissen before the United
States District Court for the District of Maine in Portland,
Maine;
and,
The
evidence summarised or contained in the extradition documents is
available for trial and is sufficient under the laws of the
United
States of America to justify the prosecution of Denver Carolissen.”
[33.]
The
procedure before a magistrate requires the court to determine whether
the offence in question is an “
extraditable
offence
”.
The role of a section 10(2) certificate, in reaching such conclusion
is a narrow one and is related only to the question
of whether the
alleged conduct is sufficient to give rise to the offence in the
foreign jurisdiction.
[6]
[34.]
Notwithstanding the contents of the certificate, we were concerned
about the fact as to whether
the District Court for the District of
Maine in Portland has the jurisdiction to prosecute the appellant.
Our concerns in this
regard were based on the fact that the affidavit
of Mr Wolff positively asserts that Mr Fife was present in Maine when
he received
the pornographic material disseminated by the appellant
on his computer –
“
He
sent the images to the agents in Maine on September 12, 2014….”
[35.]
It is clear however that this allegation is based upon the affidavit
of Mr Fife which is attached
to Mr Wolff’s affidavit. In his
affidavit Mr Fife says no more than that he “
resides
”
in the State of Maine. He makes no mention of where he actually was
when he received the material, and given the portability
of Internet
communication these days, he might just as well have been in London
or Pretoria when he received the images.
The question of
foreign jurisdiction therefore persists.
JURISDICTION
OF THE USA COURT
[36.]
From the statements of Mr Wolff and Mr Fife described above it would
appear that appellant’s
minor victims were sexually exploited
in South Africa, where the pornographic material was produced and
subsequently uploaded onto
the Internet, and that the USA has
predicated an exercise of jurisdiction upon conduct that occurred
outside its sovereign territory,
but which had a potentially harmful
effect within its territory.  In light of the omission in the
affidavit of Mr Fife regarding
his whereabouts when he received the
material in question, Mr Calitz asked us to find that the respondent
had failed to establish
that the court in question in the United
States had jurisdiction to hear this matter. Counsel for the
respondent, on the other
hand, pointed out that such jurisdiction was
to be inferred from the application as a whole. The
amicus curiae
in turn pointed out that since the offences with which the USA wishes
to charge the appellant are federal offences, all that the
USA
requires to establish is that the images were received in the USA. He
noted that the legislation in question (Title 18 Section
2251) gave
the USA courts extra-territorial jurisdiction and the fact that the
images had been produced in, and transmitted from,
for example, Cape
Town did not deprive the USA court of jurisdiction. The essence of
the charges against the appellant, it was
said, is that he engaged in
sexually explicit conduct outside of the USA for the purposes of
producing a visual depiction of such
conduct, and that he later
transported such visual depiction to the USA via the Internet.
[37.]
In
regard to the question of the USA’s extra-territorial
jurisdiction, it is established law that it is open to a sovereign

state to enact legislation permitting it to prosecute within its own
jurisdiction suspects who have committed crimes elsewhere
in the
world, where those crimes might ultimately have a deleterious effect
in the territorial jurisdiction of the requesting state.
There are
numerous examples of this in recent jurisprudence, including the
decision of the House of Lords in the matter of
Re
Al-Fawwaz
[7]
.
That matter involved the arrest in the United Kingdom of a person
wanted in a court in New York City for conspiring outside of
the USA
with a certain Mr Osama Bin Laden and others belonging to the Al
Qaeda organization to murder American citizens both in
the USA and
elsewhere,
including the Middle East and Africa
[8]
.
[38.]
The
House of Lords
[9]
considered
first
“
the
question of principle and whether the extradition crime ruled on must
be alleged to have been
committed
in the United
States or whether it is sufficient that it is within the United
States’ jurisdiction in the sense that it is
triable
in the United States”
(Emphasis added)
After
considering the express wording of the extradition agreement in
question in the context of a number of earlier decisions of
the House
of Lords and the Court of Appeal in relation thereto, the learned
judge concluded as follows:
“
31
The question is thus whether the conduct complained of will be
triable in the United States and
if that conduct were transposed to
England, would be triable in England. The question is not whether the
acts done in the United
States (if any) regardless of other acts
necessary to found jurisdiction committed elsewhere, if transposed to
England, would be
triable in England. It is still necessary to decide
whether all acts relied on or only those acts done in the United
States are
transposed to England.”
[39.]
The learned judge proceeded to consider the issue of jurisdiction for
purposes of extradition
on the basis of interpretation of the
relevant statutory regime which was applicable to the matter then
before the House of Lords,
against the background of the various
treaties between the two countries over the years. He ultimately
concluded as follows:
“
37.
When the 1870 Act was passed crimes were no doubt largely committed
in the territory of the state trying
the alleged criminal but that
fact does not, and should not, mean that the reference to the
jurisdiction is to be so limited. It
does not as a matter of the
ordinary meaning of the words used. It should not because in present
conditions it would make it impossible
to extradite for some of the
most serious crimes now committed globally or at any rate across
frontiers. Drug smuggling, money
laundering, the abduction of
children, acts of terrorism, would to a considerable extent be
excluded from the extradition process.
It is essential that that
process should be available to them. To ignore modern methods of
communication and travel as aids to
criminal activities is unreal. It
is no less unreal to ignore the fact that there are now many crimes
where states assert extra-territorial
jurisdiction, often as a result
of international conventions.”
[40.]
In
coming to this conclusion the House of Lords referred to its earlier
judgment in
Liangsiriprasert
[10]
in which the pervasiveness of international crime was discussed.
“
Unfortunately
in this century crime has ceased to be largely local in origin and
effect. Crime is now established on an international
scale and the
common law must face this new reality. Their Lordships can find
nothing in precedent, comity or good sense that should
inhibit the
common law from regarding as justiciable in England inchoate crimes
committed abroad which are intended to result in
the commission of
criminal offences in England. Accordingly a conspiracy entered into
in Thailand with the intention of committing
the criminal offence of
trafficking in drugs in Hong Kong is justiciable in Hong Kong even if
no overt act pursuant to the conspiracy
has yet occurred in Hong
Kong. This then is a sufficient reason to justify the magistrate’s
order...[to grant extradition]”
[41.]
In a
decision of the Canadian Supreme Court which has a degree of
resonance with the present matter
[11]
the court was called upon to examine the constitutionality of an
extradition application brought by the USA in Canada in circumstances

where a Canadian citizen had manufactured heroin in Canada and then
distributed the drug in America. In opposing extradition to
the USA
the accused in question asserted a constitutional right to remain in
his home country. In delivering the judgement for
the majority of the
court, La Forest J emphasised the following:
“…
.(I)nvestigation,
prosecution and suppression of crime for the protection of the
citizen and the maintenance of peace and public
order is an important
goal of all organised societies. The pursuit of that goal cannot
realistically be confined within national
boundaries. That has long
been the case, but it is increasingly evident today.”
[42.]
The
transnational mobility of crime was also touched upon by the
Constitutional Court in
Quagliani
[12]
where Sachs J remarked as follows in para’s 40 – 41:
“
Yet,
important though individual rights are, extradition proceedings
cannot be looked at purely from the point of view of protecting

individuals facing extradition. Transnational mobility of people,
goods and services, as well as new technological means, have

contributed to increased mobility of criminals. La Forest states
that- [the extradition process] strengthens the law enforcement

agencies within the state requesting the surrender by reducing the
possibility of its criminals escaping. And it is to the advantage
of
the state to which a criminal has escaped, for no country desires to
become a haven for malefactors.
The
Act furthers the criminal justice objectives of ensuring the people
accused of crime are brought to trial and that those who
have been
convicted are duly punished. The need for effective extradition
procedures becomes particularly acute as the ability
of those accused
or convicted of national crimes increases.”
[43.]
To the
extent that we are dealing here with what has come to be known as
“
cybercrime
”,
Mr Badenhorst referred us to an instructive article by
Brenner
and Koops
in the Journal of High Technology Law
[13]
in which the authors consider the challenges in indicting persons or
entities for a variety of cybercrimes committed across jurisdictions,

noting that “
Cybercrime
has a pronounced tendency to cross national borders and digital
evidence is by nature evanescent”.
[14]
[44.]
After
a detailed discussion of legislative provisions in a number of
diverse jurisdictions
[15]
the
authors note that cybercrime is essentially “
a-territorial”
and
conclude as follows:
“
Our
survey of several jurisdictional provisions relating to cybercrime
indicates that the traditional basis for jurisdiction, such
as those
listed in the Restatement (Third) of the Foreign Relations Law of the
United States, can well be and in fact are applied
to cybercrime.
Perhaps surprisingly, territoriality is still a prime factor, despite
the nonphysical nature of the bits and bytes
that usually constitute
a cybercrime, and despite the alleged a-territorial nature of the
Internet. The
location
of the act itself or of
its effect,
as well as the location of computers
or persons can establish a sufficient connection to a country or
state to claim jurisdiction;
some states even use the location of
anything remotely connected to the crime to claim jurisdiction…..
Therefore,
other than traditional, physical crime, cybercrime may sooner look at
the location of the effect
or the
location
of the perpetrator and victim
.”
[Emphasis added]
[45.]
The USA authorities procured an arrest warrant from the relevant
court for the District of Maine
for the arrest of the appellant at
his home in Kuils River outside Cape Town. It is said that the basis
for the warrant was that
the appellant was to be indicted in Maine on
three statutory counts of “
Sexual Exploitation of a Minor
”
and five statutory counts of “
Transportation of Child
Pornography
” into the USA.  This warrant was
transmitted to the South African law enforcement authorities who then
acted on it and
took the appellant into custody at his home on
25 November 2014.
[46.]
As Mr Simonsz pointed out, there are a number of statutes in our
domestic legislation which
have created extra-territorial
jurisdiction for our courts in relation to offences other than
cybercrime. For instance, sec 35(1)
of the Prevention and Combatting
of Corrupt Activities Act, 12 of 2004 (“POCA”) gives a
local court jurisdiction to
hear a matter involving an offence which
“
occurred outside of the Republic….regardless of
whether or not the act constitutes an offence at the place of its
commission..”.
The accused facing such a charge must, inter
alia, be a citizen of the Republic, or be ordinarily resident here,
or have been arrested
in the Republic at the time the offence was
committed. Further examples are to be found in sec 9 of the
Regulation of Foreign Military
Assistance Act, 15 of 1998, sec 61 of
SORMA and
sec 30A
of the
Films and Publications Act 65 of 1996
.
[47.]
In our view, the offences with which the appellant stands to be
charged in the USA have two
distinct components to them. Firstly,
there is the manufacture of child pornography by the appellant which
evidently took place
in South Africa, and then there is the
dissemination of that material over the Internet from South Africa
to,
inter alia
, Mr Fife in the USA. And, we are obliged to
mention, in light of the alleged admissions made by the appellant to
Ms Niemand, he
is also liable to be charged in South Africa for
contraventions of SORMA. We shall return to this aspect later.
[48.]
The
USA lawmakers have deemed it appropriate to criminalise in their
jurisdiction both of the components referred to
[16]
– that is their sovereign prerogative. Provided the USA can
show the necessary
nexus
to its territorial jurisdiction, in the manner alluded to by Brenner
and Koops, it is in our view entitled to request the extradition
of
the appellant. In his case territorial jurisdiction is contained in
the assertion by Mr Wolff that Mr Fife was present in Maine
when he
“
chatted”
with
the appellant and subsequently received the pornographic images which
had been manufactured (or possibly sourced elsewhere)
by the
appellant.
[49.]
Notwithstanding the failure by Mr Fife to expressly confirm that he
was present in Maine when he received
the appellant’s
communications and accompanying material, we have the confirmation
from Mr Wolff that the appellant has been
found by a grand jury to be
indictable in Maine. This suggests that this body, as an integral
part of the USA judicial process,
was satisfied as to territorial
jurisdiction. In addition we have been furnished with the certificate
put up by Mr Wolff under
sec 10(2) of the Act in which jurisdiction
in the USA is positively asserted. In our view, it important to note
what the Constitutional
Court held in
Geuking
as to the import
of such a certificate:
“
[41]
The question of fact dealt with by way of a s 10 (2) certificate is
whether the evidence adduced before the
magistrate would also warrant
the prosecution of the person concerned under the law of the foreign
State. It is one of a number
of factual issues which are required to
be considered by the magistrate and it is the only one that does not
depend on evidence
readily available in South Africa. Furthermore, it
is a question which would not normally be with in the knowledge or
expertise
of South African lawyers or judicial officers.”
[50.]
Finally, Mr Badenhorst argued that if the appellant wishes to
challenge the jurisdiction of
the USA to indict him the correct place
to issue that challenge is before the court in which he is ultimately
arraigned. Mr Simonsz
made a similar submission. We agree with those
submissions as a general proposition, subject only to the
qualification that an
applicant for extradition must make out a
prima
facie
case for its territorial jurisdiction, regardless as to
whether the offence relates to cybercrime or otherwise. In light of
the
findings set out above, we are satisfied that the USA has made
out such a
prima facie
case and our concerns regarding
jurisdiction have been adequately addressed.
THE
DOUBLE CRIMINALITY REQUIREMENT
[51.]
The
notion of double criminality in extradition matters is described thus
by Prof Dugard
[17]
-
“
The
principle of double criminality requires that the conduct claimed to
constitute an extraditable crime should constitute a crime
in both
the requesting and the requested state. It is not necessary that the
offence should have the same name in both states,
provided that it is
substantially similar.”
[52.]
This approach was supported by the Constitutional Court in
Geuking
where the following was said by Goldstone J:
“
[40]
The magistrate would then have to consider whether the evidence which
has thus been produced would constitute
an offence under South
African law. The name of the offence would not be determinative. The
question for consideration is whether
the
conduct
which the evidence discloses constitutes an offence in our law which
would be punishable with a sentence of imprisonment for a
period of
six months or more. It must also be established that the offence is
not one under military law and is not also an offence
under the
ordinary criminal law of the Republic.”
[Emphasis added]
[53.]
Turning to the Treaty itself, the following provisions of Article 2
are relevant to this point:
“
(3).
For the purposes of this Article, an offence shall be an extraditable
offence whether or not the:
(a)
laws in the Requesting and Requested States place the offence
within the same category of offences or describe the offence by the

same terminology; or
(b)
offence is one for which United States federal law requires
the showing of such matters as interstate transportation or use of
the
mails or other facilities affecting interstate or foreign
commerce, such matters being merely for the purpose of establishing
jurisdiction
in a United States Federal Court.
(4)
If an offence has been committed outside the territory of the
Requesting State, extradition
shall be granted where the laws in the
Requested State provide for the punishment of an offence committed
outside its territory
in
similar circumstances
.
Where the laws in the Requested State do not so provide, the
executive authority of the Requested State may, in its discretion,

grant extradition.”
(Emphasis added)
[54.]
The
terminology employed by the parties in the Treaty follows the trend
ordinarily applied by the USA in its extradition treaties.
As
Abbell
[18]
notes,
“…
since
the early 1970’s United States extradition treaties generally
have included a provision requiring the courts to disregard
the
terminology used by the requesting country and the United States in
defining the requested offense under their respective laws,
as well
as their respective categorisation of the offense. Such a provision
effectively requires United States extradition magistrates
to base
their dual criminality determinations on the criminality of the “act”
that is the basis of the requested offense,
rather than on the
denomination of the offense under the laws of the respective
countries. However, while dual criminality does
not require the
provisions of the statutes of the United States and the requesting
country to be identical, they must be ‘substantially
analogous’
or directed at ‘functionally identical conduct’ “.
[55.] The
offences under which the USA seeks to indict the appellant are
described in
Title 18, United States Code, Sections 2251 and 2252A
as follows:
[55.1.]
“
2251.
Sexual exploitation of children
(a)…
(b)….
(c)
(1) Any person who, in a circumstance described in paragraph
(2), employs, uses, persuades, induces, entices, or coerces any minor

to engage in, or who has a minor assist any other person to engage
in, any sexually explicit conduct outside of the United States,
its
territories or possessions, for the purpose of producing any visual
depiction of such conduct, shall be punished as provided
under
subsection (e).
(2)
The circumstance referred to in paragraph (1) is that -
(A)
the person intends such visual depiction to be transported to
the United States, its territories or possessions, by any means,
including
by using any means or facility interstate or foreign
commerce or email; or
(B)
the person transports such visual depiction to the United
States, its territories or possessions, by any means, including by
using
any means or facility of interstate or foreign commerce or
mail.
(d)………
(e)
Any individual who violates, or attempts or conspires to violate,
this section shall be fined under this title and imprisonment
not
less than 15 years no more than 30 years….”
[55.2.]
“
2252A
Certain activities relating to material constituting or
containing  child pornography
(a)
any person who – knowingly mails, or transports or ships
using any means or facility of interstate or foreign commerce or in

or affecting interstate or foreign commerce by any means, including
by computer, any child pornography;
shall be punished as
provided in subsection (b).
(b)(1)
Whoever violates, or attempts or conspires to violate, paragraph (1)…
of subsection (a) shall be…
imprisoned for not less than 5
years and not more than 20 years…”
[56.]
The
definition
[19]
of “
sexually
explicit conduct”
as
contemplated in the offence of sexual violation under sec 2251 is
very wide and includes “
actual
or simulated…sexual intercourse, including genital-genital,
oral-genital, anal-genital, or oral-anal, whether between
persons of
the same or opposite sex… [as also]… lascivious
exhibition of the genitals or pubic area of any person.”
[57.]
Mr Badenhorst argued that this proscribed conduct should be compared
with sections 20(1) and
(2) of SORMA , which are to the following
effect -
20.
“Using children for or benefitting from child pornography
(1)
A
person (“ A”) who unlawfully and intentionally uses a
child complainant (“B”), with or without the consent
of
B, whether for financial or other reward, favour or compensation to B
or to a third person (“C”) or not-
(a)
for purposes of creating, making or producing;
(b)
by
creating, making or producing; or
(c)
in any manner assisting to create, make or produce, any image,
publication, depiction, description or sequence in any manner
whatsoever
of child pornography, is guilty of the offence of using a
child for child pornography.
(2) Any person
who knowingly and intentionally in any manner whatsoever gains
financially from, or receives any favour, benefit,
reward,
compensation or any other advantage, as the result of the commission
of any act contemplated in subsection (1), is guilty
of the offence
of benefiting from child pornography.”
[58.] We agree
with counsel for the respondent that this section of SORMA in
particular criminalises similar conduct to that with
which the
appellant is charged in the USA, save of course that the
contravention of the latter’s legislation specifically
targets
extra-territorial activity. However, if regard is had to sec 61(1) of
SORMA, one finds that the legislature seeks to give
extra-territorial
jurisdiction to contraventions of that Act in a wide range of
instances –
“
61.
Extra-territorial jurisdiction
(1)
Even if the act alleged to constitute a sexual offence or
other offence under this act occurred outside the Republic, a court
of
the Republic, whether or not the act constitutes an offence at the
place of its commission, has, subject to subsections (4) and
(5),
jurisdiction in respect of that offence if the person to be charged-
(a)
is a citizen of the Republic;
(b)
is ordinarily resident in the Republic;
(c)
was arrested in the territory of the Republic, or in its
territorial waters or on board a ship or aircraft registered or
required
to be registered in the Republic at the time the offence was
committed
;
(d)
is a company, incorporated or registered as such under any
law, in the Republic; or
(e)
any body of persons, corporate or unincorporated, in the
Republic
.
(2)
Subject to subsections (4) and (5), any act alleged to
constitute a sexual offence or other offence under this Act and which
is
committed outside the Republic by a person, other than a person
contemplated in subsection (1), is, whether or not the act
constitutes
an offence at the place of its commission, deemed to have
been committed in the Republic if that-
(a)
act was committed against a person referred to in paragraphs
(a) or (b) of subsection (1);
(b)
person is found in the Republic; and
(c)
person is, for any reason, not extradited by the Republic or
if there is no application to extradite that person.”
[59.]
But the ambit of SORMA is in fact much wider than just the offences
contemplated in sec 20.
Chapter 3 of SORMA covers a range of
proscribed activities involving children: from sexual exploitation
and grooming to exposure
to, and the use of children in the
manufacture of, pornography. These offences are in addition to the
various sexual offences described
in Chapter 2 which include rape and
sexual assault.
[60.]
The
rights of children in South Africa are specifically addressed and
protected in sec 28 of the Constitution
[20]
.
Moreover, there is a plethora of legislation (including SORMA) which
has been introduced in the constitutional era to give content
to the
protection afforded to children in the Bill of Rights. Our courts,
too, have consistently sought to advance the “
paramountcy
”
or “
best
interests
”
principle embodied in sec 28(2) of the Constitution in all matters
concerning children. For instance, in
Du
Toit
[21]
the Supreme Court of Appeal recently reiterated the importance of
that approach in a case concerning a prosecution for possession
of
child pornography. In that matter the court cited extensively from
the decision of the United States Supreme Court in
Ferber
[22]
in stressing the immense harm which such matter causes to children
when they are forced to be the subjects of such offences.
[61.]
In the circumstances, adopting the mandated approach which enjoins
the court to consider the
substance of the proscribed conduct, we are
satisfied that the double criminality requirement has been met in
respect of counts
1-3 for which the appellant is to be indicted in
Portland, Maine
[62.]
Mr Badenhorst also referred the court to
sec 24B(1)(d)
of the
Films
and Publications Act, 65 of 1996
in relation to the double
criminality requirement for the contravention of sec 2252A of the US
Code –
“
24B.
Prohibition, offences and penalties on possession of films, games and
publications.
Any
person who –
(a)…
(b)…
(c)…
(d)
knowingly makes available, exports, broadcasts or in any way
distributes or causes to be made available, exported, broadcast or
distributed or assists in making available, exporting, broadcasting
or distributing, any film, game or publication which contains

depictions, descriptions or scenes of child pornography or which
advocates, advertises, encourages or promotes child pornography
or
the sexual exploitation of children, shall be guilty of an offence.”
[63.]
That Act, too, makes provision for the extra-territorial operation of
any offence committed
under it –
“
30A.
Extra-territorial jurisdiction.
(a)
Any citizen or permanent resident of the Republic who commits
any act outside the Republic which would have constituted an offence

under this Act had it been committed within the Republic, shall be
guilty of the offence which would have been so constituted and
liable
to the penalty prescribed for such offence in this Act.”
[64.]
We are further satisfied that these contraventions under the
Films
and Publications Act are
similar in substance to the offences under
which the USA seeks to indict the appellant on counts 4 and 5 in the
court in Portland,
Maine.
[65.]
However,
before the appellant may be found to be extraditable, Article 2(1) of
the Treaty requires that the offence(s) concerned
must attract
punishment of at least one year’s imprisonment. Mr Badenhorst
correctly pointed out that the contravention of
secs 17
and
20
of
SORMA (read with
secs 55
and
61
thereof) do not carry penal
provisions. In such event, he observed, the provisions of
sec 276
of
the CPA
[23]
are applicable.
He referred the court to the judgment of the Supreme Court of Appeal
in
Prins
[24]
where the issue was addressed pertinently –
“
[38]
For all those reasons the argument that
s 276
(1) must be construed
as being a provision empowering courts to impose sentences in
relation only to common law powers must be
rejected. In my opinion it
is a general empowering provision authorising courts to impose
sentences in all cases, whether at common
law or under statute, and
no other provision governs the imposition of sentence. I reject the
argument that..[SORMA].., in creating
the offences set out in
chapters 2, 3 and 4 thereof, infringed the principle of legality by
not prescribing penalties to be imposed
for those offences. I also
reject the contention, not supported by authority, that a statutory
offence can only be created by Parliament
if it includes a penalty in
the enacting legislation. That may be a requirement in countries
where the criminal law is codified,
but that is not the position in
South Africa.”
[66.]
The effect of the judgment in
Prins
is that in respect of
those offences under SORMA with which a person is charged in the High
Court, the maximum sentence which can
be imposed is life imprisonment
and, if charged in the Regional Court, the maximum sentence is 15
years imprisonment. In the result,
we are satisfied that the minimum
penalty requirements of Art 2(1) of the Treaty are met.
CONCLUSION
AS TO EXTRADITABILITY
[67.]
In the result we are satisfied that the magistrate correctly applied
the relevant legal principles
and the Treaty.  His findings,
that the appellant is liable to be extradited to stand trial in
Portland, Maine in the United
States of America and that there is
sufficient evidence to warrant his prosecution for the offences
alleged, are correct.
MINISTERIAL
DISCRETION
[68.]
Ultimately section 11 of the Act vests the Minister with the decision
to surrender to a foreign
State a person who has been committed by a
magistrate.  The Minister has a discretion to refuse to
surrender a person on the
grounds set out in section 11(b).
[69.]
Where
a foreign state such as the USA requests extradition a three stage
process is envisaged by the Act.  In the first (administrative

phase) the foreign state submits a request for extradition which the
Minister considers before authorizing a magistrate to conduct
an
enquiry.  In the second (judicial phase) the magistrate
considers the factors set out in section 10 of the Act and either

issues an order committing the person to await decision by the
Minister or discharges the person.  The appeal process to this

court is part of that judicial phase.  The third phase is an
executive phase.  In this phase the discretion, as to whether

the appellant is, as a matter of fact, to be extradited to the USA,
is exercised by the Minister: the exercise of that discretion
is an
executive act given that extradition is a matter of foreign policy,
which falls within the exclusive competence of the executive
state
power.
[25]
[70.]
Pursuant
to the constitutionally entrenched principle of the separation of
powers it is not open to this court to prevent the extradition
of the
appellant because it considers it desirable that he be prosecuted in
South Africa.  It is worth emphasing, however,
that the Minister
is expressly vested with the power to order that a person not be
surrendered before the expiration of a period
fixed by the Minister
if he is satisfied by reason of the surrender not being required in
the interests of justice
[26]
.
Our concluding remarks are made in the light thereof.
[71.]
As counsel for the respondent has correctly observed the request for
extradition comes from
a foreign State, and not from an associated
State, as defined in the Act. In the latter case (essentially States
in Africa), the
power to order extradition would lie with the
magistrate hearing the application, and by implication, a court
hearing an appeal
in such circumstances would enjoy similar powers.
THE
APPELLANT’S LIABILITY TO BE CHARGED LOCALLY
[72.]
Were we dealing with such an application by an associated State, we
would have seriously considered
delaying the extradition of the
suspect in a matter such as this. Our reasoning in this regard is
based on the fact that the evidence
before us demonstrates,
prima
facie,
that the appellant is liable to be charged with the
commission of a number of serious crimes in South Africa. Not only
does the
record before us suggest that the appellant collected and
possessed large quantities of child pornography on his office
computer
in Cape Town (for which he can be charged under the relevant
legislation), but there is a persuasive case made out in the
extradition
application (in particular the alleged admissions made to
Ms Niemand) that the appellant is liable to be charged with sexual
penetration
and/or sexual violation of a minor under SORMA. Given the
wide interpretation of rape under SORMA, it is possible that the
appellant
might be advised that he faces a minimum sentence of life
imprisonment if so charged. But whatever the nature of the charges he

may face in South Africa, if convicted the appellant could face a
lengthy period of imprisonment in this country.
[73.]
If the allegations against him are true, the appellant has sexually
molested, and subjected
to the manufacture of pornography, children
who were intimately known to him, as well as homeless children whom
he lured off the
streets of the Northern Suburbs of the Cape
Peninsula with promises of sweets and money. The families and
communities close to,
or associated with, such victims have every
right to know about the damage that the appellant might have caused
to them in order
that the children concerned might be rendered the
appropriate care and assistance.
[74.]
In
De
Reuck
[27]
the Constitutional Court reminded us that –
“
Child
pornography is universally condemned for good reason. It strikes at
the dignity of children, it is harmful to children who
are used in
its production, and it is potentially harmful because of the attitude
to child sex that it fosters and the use to which
it can be put in
grooming children to engage in sexual conduct.”
[75.]
In
Du Toit
Ponnan JA went further :
“
[14]…..
A child compromised by a pornographer’s camera has to go
through life knowing that the image is probably circulating
within
the mass distribution network for child pornography. Because the
child’s actions are reduced to a recorded image,
the
pornography may haunt him or her long after the original recording.
Citing a wealth of evidence, the
Ferber
court
found that the distribution of child pornography abused children by
creating a permanent record of the child’s participation.
This
record, in turn permitted the harm to the child to be exacerbated
each time the material was circulated and led to the creation
of
distribution networks that fostered further exploitation. (
US
v
Mathews
[2000] USCA4 70
;
209 F3d 338
(4
th
Cir 2000)).
De Reuk
(para 64) emphasised that:
‘The psychological harm to the child who was photographed is
exacerbated if he or she knows that
the photograph continues to
circulate among viewers who use it to derive sexual satisfaction.’
It follows that the distribution
network for child pornography must
be closed if the production of material which requires the sexual
exploitation of children is
to be effectively controlled (
New
York v
Ferber
).”
[76.]
Indeed, there can be little doubt that the most damaging effect of
the appellant’s alleged
conduct has been felt right here in
South Africa where the hapless victims and their families have been
offered no redress for
the conduct of the appellant. And, it is here
where the appellant’s name, if he is convicted, falls to be
entered into the
National Register of Child Offenders under SORMA for
the protection of future victims. There can be little doubt that the
appellant
could have been charged in South Africa as soon as the
allegations of his criminal ways came to the attention of the SAPS.
And,
as Mr Badenhorst informed the court, they are ready to pounce
and arrest the appellant should this appeal fail.
[77.]
Frankly put, we are astounded by the failure of the SAPS to charge
the appellant in this matter.
After all, they are bound to do so
under sec 205(3) of the Constitution which describes the objects of
the police service as the
prevention, combating and investigation of
crime for the maintenance of public order and the protection and
security of the inhabitants
of the Republic. And, while every effort
must be made to address a request for extradition in view of our
international obligations
and commitment to comity, in a matter such
as this there was no reason to hold-off and play a “wait and
see” game while
the extradition proceedings followed their
course. The appellant has been in custody since November 2014. He has
a right under
the Constitution to a speedy trial and his victims and
their families have a correlative right to social justice.
CONCLUSION
[78.] In  the
circumstances we make the following order :
1.
THE APPELLANT’S APPEAL UNDER SECTION 10 OF THE
EXTRADITION ACT, 67 0F 1962 IS DISMISSED.
2.
THE REGISTRAR OF THIS COURT IS DIRECTED TO IMMEDIATELY FORWARD
A COPY OF THIS JUDGMENT TO THE MINISTER OF JUSTICE AND CONSTITUTIONAL

DEVELOPMENT.
GAMBLE
J
DONEN
AJ
[1]
Geuking
v President of the Republic of South Africa and Others
2003(3)
SA 34 (CC) at [15] and [37]
[2]
The
Foreign Minister
[3]
The
Minister of Justice
[4]
A
state prosecutor
[5]
This is understood to be an online computer facility whereby parties
subscribing thereto are able to exchange views and discuss
issues
over the Internet.
[6]
Geuking
at
[48]
[7]
[2001] UKHL 69
;
[2002]
1 All ER 545
(HL)
[8]
See
also
Mohamed
and Another v President of the Republic of South Africa and Others
2001(3)
SA 893 (CC) in which the activities of the Al Qaeda organization are
discussed in detail.
[9]
Per
Lord Slynn of Hadley para 7
[10]
Liangsiriprasert
v Government of the United States of America
[1991]
1 AC 225
at 251 per Lord Griffiths
[11]
United
States of America v Cotroni; United States of America v El Zein
[1989]
1 SCR 1469
[12]
President
of the Republic of South Africa v Quagliani and Two Similar Cases
2009(2)
SA 466 (CC)
[13]
Susan
W.Brenner and Bert-Jaap Koops
,
“Approaches to Cybercrime Jurisdiction” , 4 J.High Tech.
L.1 (2004) at 44
[14]
In
their introduction to the article the authors pose the following
conundrum:
“
A
Web site in Germany caters for the adult market, and has done so
happily for three years.
Then
out of the blue, it finds itself indicted in Singapore because of
spreading pornographic material in Singapore, even though
the
company has never done business with someone from Singapore. To make
things worse, the Web site owners are ordered to appear
in court in
Belgium, because some of the adult pictures are considered to be of
17-year old minors, constituting the crime of
child pornography
(which, in Belgium, entails persons under 18 years of age; in
Germany, the age limit is 14). The business is
perfectly legal in
Germany, but since it uses the Internet to conduct its business, it
finds itself confronted with the criminal
laws of all countries
connected to the Internet – that is, all countries of the
world.”
[15]
Including
Belgium, Germany, the Netherlands, Malaysia, Singapore, Australia
and the USA.
[16]
Sexual
exploitation during the manufacturing phase and subsequent
transportation of the offending matter into the USA.
[17]
John
Dugard
SC
International
Law: A South African Perspective (4
th
ed ) at 219
[18]
Michael
Abbell
Extradition
to and from the United States (2010) at 215
[19]
Title18,
United States Code, Section 2256
[20]
The
Constitution of the Republic of South Africa, 1996
[21]
Du
Toit v Ntshingila
[2016]
ZASCA 15
(11 March 2016)
[22]
New
York v Ferber
458
US 747
(1982)
[23]
S
276(1) Subject to the provisions of this Act and any other law and
of the common law, the following sentences may be passed
upon a
person convicted of an offence…
[24]
Director
of Public Prosecutions, Western Cape v Prins and Others
2012(2)
SACR 183 (SCA) at [38]
[25]
See
Geuking
at
496E-497B
[26]
See
section 11(b)(iii) of the Extradition Act.
[27]
De
Reuck v Director of Public Prosecutions (Witwatersrand Local
Division) and Others
2004(1)
SA 406 (CC) at [61]