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[2021] ZAWCHC 28
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Freedendal v Minister of Justice and Correctional Services and Another (15423 / 2020) [2021] ZAWCHC 28; 2021 (1) SACR 634 (WCC) (18 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number: 15423 / 2020
In
the matter between:
ANTHONY
PETER
FREEDENDAL
Applicant
and
MINISTER
OF JUSTICE AND
CORRECTIONAL
SERVICES
First
Respondent
THE
DIRECTOR OF PUBLIC PROSECUTIONS,
(WESTERN
CAPE)
Second
Respondent
Coram:
Wille, J
Heard:
10
th
of February 2021
Delivered:
18
th
of February 2021
JUDGMENT
WILLE,
J:
Introduction
[1]
These
are application proceedings which were initially set down for hearing
on the 30
th
of October 2020. This application came before me on the 16
th
of November 2020 in the urgent fast lane. The matter was
subsequently postponed to the 27
th
of November 2020, in order for the first respondent to file its
opposing papers. Again, the matter was postponed for hearing
on
the 8
th
of December 2020. The reason for the latter postponement was
because the first respondent did not file its opposing papers
in the
court file and because the applicant desired to file a replying
affidavit. Again, the matter was the subject of a
postponement
due to certain medical difficulties experienced by the applicant’s
attorney of record. The application
was eventually heard on the
10
th
of February 2021.
Further
Affidavit
[2]
Very
tardily, and a mere (5) days prior to the hearing of the application,
the applicant sought to pioneer a further supplementary
affidavit.
No clarification was tendered for the reasons for the late filing of
the further supplementary affidavit.
Specifically, no
explanation was tendered as to what had transpired between the 8
th
of December 2020 and the 4
th
February 2021, when the belated application was launched for the
introduction of the supplementary affidavit.
[3]
Further,
the footing for the introduction of the supplementary affidavit is
not clear. It seems to me that the solitary purpose
of the
affidavit was to attempt to reveal the difficult circumstances that
the applicant faces due to his incarceration. The first
respondent
voiced no objection to the introduction of the further supplementary
affidavit as the viewpoint was taken that the material
contained
therein was not of great moment. On this, I agree. It is for
this reason that the application for the introduction
of a further
supplementary affidavit by the applicant was granted and the further
supplementary affidavit was introduced into the
record for the
purposes of the hearing.
Factual
Matrix
[4]
The
applicant in this matter is currently (79) years old. The first
respondent is the Minister of Justice and Correctional
Services and
the second respondent is the Director of Public Prosecutions. The
second respondent takes no part in these proceedings
and abides the
decision of the court. The first respondent vigorously opposes the
application.
[5]
The
application consists of two parts, namely Part A and Part B. In
accordance with Part A
,
the applicant seeks an order that the applicant’s extradition
be stayed and that the applicant be released from detention,
pending
the determination of the relief sought in Part B of the application.
In Part B of the application, the applicant
seeks an order that
the determination by the first respondent that the applicant be
extradited, be reviewed and set aside.
[6]
The
applicant is currently incarcerated in prison. He is an elderly
gentleman and has been married for (51) years. He
has (3)
children and (5) grandchildren. He has resided with his wife,
in the same house in Sea Point for more than (16) years.
This
property is jointly owned by him with his wife and is unencumbered.
[7]
The
applicant was arrested on the 30
th
of April 2014, on charges of sexual assault and has been detained
ever since. He was convicted of sexual assault in April
2015
and was sentenced to a period of (5) years imprisonment in terms of
section 276 (1) (i) of the Act.
[1]
He became eligible for release under correctional supervision during
August 2016. Because of the nature of his sentence,
his
sentence would endure for a period of (5) years, but he would not
ordinarily have been incarcerated in prison for the remaining
portion
of his sentence.
[8]
The
applicant’s extradition enquiry proceeded in the magistrate’s
court in Wynberg during 2017. The presiding
officer held that
the applicant was liable for extradition and handed down a judgment
in this connection on the 4
th
of October 2017. Ultimately, the first respondent was vested
with the discretion to evaluate and decide whether the applicant
fell
to be surrendered to Australia.
[9]
At
the outset, the applicant’s legal team sought to appeal the
decision handed down by the magistrate. This appeal was
subsequently withdrawn by the applicant. Thereafter, the
applicant’s attorneys made representations to the first
respondent
in an effort to persuade the first respondent not to
surrender the applicant. This process commenced in June 2018.
In
the interim, pending the decision from the first respondent,
the applicant completed the entire period of his (5) year sentence,
in prison.
[10]
The
first respondent rendered a decision that the applicant was to be
surrendered on the 27
th
of July 2020. For some unknown reason, a copy of the decision
by the first respondent was transmitted to the applicant’s
attorney only on the 2
nd
of October 2020. This, undoubtedly triggered the launching of
the application which, was originally set down for hearing
on
the 30
th
of October 2020.
[11]
As far as the
proceedings in Australia were concerned, the applicant was arrested
on the 5
th
of October 2000 and charged with (1) charge of indecent assault. The
charge was provisionally dismissed for want of prosecution
on the
21
st
of March 2001. The applicant was again arrested on the 19
th
of January 2002 and was charged with (3) charges of indecent assault.
During the course of July 2002, the charges were provisionally
withdrawn and later re-instated and substituted with (2) charges of
unlawful sexual intercourse, together with additional charges
of
indecent assault and a further charge of persistent sexual
exploitation. The charges were again provisionally dismissed
during December 2002. This, because the requisite statements were not
supplied to the applicant’s legal representatives within
the
stipulated time period.
[12]
During the course
of March 2003, the police were advised that the applicant fell to be
re-arrested and charged on certain of the
offences, as referred to
above. The police attempted to locate the applicant.
However, the applicant could not be located.
It was later
established that the applicant was in South Africa, with plans to
return to Australia, during April 2003.
[13]
During the course
of April 2003, the police again attempted to locate the applicant,
again without any success. Detective
Hope, from the Port
Lincoln Criminal Investigation Branch, communicated with the
applicant’s then legal team and advised
him that he intended to
arrest and formally charge the applicant. Detective Hope
subsequently received written communication
from the applicant’s
solicitor to the effect that the applicant would not be presenting
himself to the police station.
[14]
Detective Hope
thereafter received information from a travel agent during April
2003, that the applicant had returned to South Africa,
whereafter a
passenger alert was placed on his passport. During March 2006,
the applicant’s solicitor requested that
the abovementioned
alert be withdrawn. This request was refused. Subsequently, and
during July 2011, the applicant was arrested
in Port Lincoln and
charged with (10) charges of indecent assault and one charge of
unlawful sexual intercourse. Later, a
further (5) charges of
indecent assault, (3) charges of unlawful sexual intercourse and (5)
charges of persistent sexual exploitation
were preferred against the
applicant.
[15]
On the 14
th
July 2011, the applicant was granted bail in Australia. On the
10
th
August 2011, he made an application for his bail to be amended to
allow him to travel to South Africa on the basis that he wanted
to do
certain charitable work in South Africa. Despite numerous
objections raised by the prosecution to this request, the
applicant
was granted permission to leave Australia.
[16]
The
applicant signed a bail agreement in terms of which he agreed to
return to court in Adelaide on the 23
rd
of November 2011, so as to answer to the charges preferred against
him. He also provided $10,000.00 in the form of a cash
bond as
security for his release. The applicant flew to South Africa on
the 13
th
of August 2011. He did not return. The investigating
officer subsequently received confirmation
[2]
,
that the applicant had been arrested in South Africa on alleged child
sex offence charges and that he would be held in custody
on these
charges for some not inconsiderable period of time.
[17]
In April 2015, the
investigating officer was informed by Interpol that the applicant had
pleaded guilty to certain of the charges
in South Africa and would be
due for release in early 2016. The investigating officer
subsequently made enquiries regarding
the extradition of the
applicant to Australia and on or about the 19th of May 2016, a
warrant was issued for the arrest of the
applicant in connection with
the alleged (24) charges that were still pending in Australia.
[18]
In anticipation
,
during September 2019, the investigating officer contacted (7) of the
victims and (6) of them have confirmed that they would be
willing to
testify against the applicant.
The
bail agreement signed by the applicant at the magistrate’s
court of South Australia on the 10
th
of August 2011, reflects that the applicant undertook to return to
Australia by the 21
st
of November 2011. The applicant understood that if he did not
appear in court when so required, he could be arrested with
or
without a warrant and further that he rendered himself liable to be
sentenced to a fine, alternatively up to two years imprisonment,
for
want of his appearance at court.
[19]
In September 2016, the
first respondent received a request for the extradition of the
applicant from the Department of International
Relations and
Co-Operation, which was received from the High Commission of
Australia. The Australian Government sought the
extradition of
the applicant in order for him to stand trial on (24) charges
relating to the sexual abuse of eight children ranging
from (7) to
(11) years old. The offences were allegedly committed between
June 1999 and January 2003, in South Australia.
Discussion
[20]
It is
common cause that as matters currently stand, the applicant falls to
be extradited to Australia. The argument to be
preferred at the
hearing of the review application is that the first respondent has
failed to act in accordance with the Extradition
Treaty between South
Africa and Australia. The point is also made that the applicant
has never received a response to its
comprehensive representations,
save for having received a copy of his extradition order. I
mention that since the filing
of the application by the applicant, a
comprehensive response to the applicant’s representations has
now been filed by the
first respondent.
[21]
It is
submitted that the applicant suffers from serious health issues and
his further detention is severely infringing upon his
human rights
and dignity. The health issues contended for by the applicant
are; that he suffers type (2) diabetes;
that he suffers
tuberculosis; that he has skin cancer; that he has
vascular disorder; that he has fluid
on his heart and that he
suffers from epilepsy.
In
addition, it is advanced that the applicant would not physically be
able to ‘cope’ with an air flight back to Australia.
[22]
Finally,
it is submitted that the first respondent has failed to act in
accordance with the provisions of Article 3.2 (g) of the
Extradition
Treaty between South Africa and Australia, which provides, inter
alia, as follows:
‘…
a
request for
extradition may be refused if the “Requested State” while
taking into account the nature of the offence
and the interests of
the “Requesting State”, considers that in the
circumstances of the case, including the age, health
or other
personal circumstances of the person whose extradition is sought, the
extradition of that person would be unjust, oppressive,
incompatible
with humanitarian considerations or too severe a punishment’
[23]
The
first respondent has given the applicant an undertaking that he will
not be extradited until his review application has been
finalized.
This undertaking was given on the 30
th
of October 2020. The first respondent however opposes the
release of the applicant from his incarceration, pending the
determination
of his review application.
[24]
The
first respondent opposes the release of the applicant, inter alia, on
the basis that he is facing no less than (24) charges
in connection
with indecent assault in Australia. A warrant of apprehension
has been issued out by the magistrate’s
court in South
Australia for the applicant. The applicant also breached his
bail conditions by failing to attend court on
the 23
rd
of November 2011, in Australia.
[25]
It
is the first respondent’s case; that the applicant chose
not to return to Australia in November 2011; that
he elected to
become a fugitive from justice; that he thereafter sexually
exploited children in South Africa; that
the applicant has
shown through his past conduct that there is a real likelihood that
he will attempt to evade his extradition
to Australia by fleeing from
South Africa once released. Further, it is the first
respondent’s case that since the
first respondent has now
ordered the surrender of the applicant to Australia, the applicant
falls to remain in custody pending
his extradition to Australia.
[26]
The
first respondent contends for the position that the medical condition
of the applicant has been the subject of much exaggeration
and has
not been the subject of any cogent proof by a medical expert. In
support of this disputed issue, the first respondent
attached to its
opposing affidavit, an affidavit from a medical officer and a
professional nurse, who are the applicant’s
primary health care
providers at the prison where he is incarcerated.
[27]
These
affidavits, indeed do reveal that the applicant suffers from a number
of medical ailments. Significantly, however, the
affidavits
also reveal that he is receiving medical treatment for these ailments
on an almost daily basis. Further, the conclusion
is drawn that
no reason can be advanced why the ailments that the applicant suffers
from, cannot be the subject of the necessary
medical treatment in
Australia.
[28]
Further,
it is recorded by the medical health care workers that most of the
applicant’s conditions can be treated at primary
health care
level and that his chronic conditions are currently well controlled.
In addition, applicant is fit enough to
travel overseas.
[29]
Finally,
the first respondent argues that the current conditions in terms of
which the applicant is housed in prison are not unjust,
oppressive or
incompatible with humanitarian considerations. The first
respondent contends that there is no constitutional
breach in
connection with the conditions under which the applicant is
incarcerated.
[30]
This
is so because, it is alleged; that the applicant is housed in a
single cell and that most significantly, due to the applicant’s
age and medical health, the applicant was given the option of
sleeping at the prison clinic. The applicant refused. This
offer still stands and the applicant simply does not in any manner
deal with this option in his papers. It is also contended
that
the likelihood of contracting the coronavirus in a single cell is
also remote
.
[31]
From
an evaluation of the material placed before me it is clear on the
facts that the applicant is indeed a fugitive from justice.
Further,
he was previously released on bail and he has abused this privilege.
In the event that he is released, pending
the outcome of his
review application, he may very well flee from the jurisdiction of
South Africa, so as to avoid his extradition
to Australia.
[32]
I
agree that his medical condition has been exaggerated as well as the
conditions of his incarceration in prison. It is so
that
prisons are not places of Nirvana, but it is submitted that he is
housed in a single cell and was offered the opportunity
of sleeping
at the prison clinic, which he declined.
[33]
On
the material before me, it has been demonstrated that the applicant
is receiving sufficient health care in prison and when necessary
he
is referred for external specialist care. It is also patently
clear that the applicant will receive sufficient health
care in
Australia and that these prison authorities are more that capable of
providing the necessary care and skill to attend to
the applicant’s
ailments.
[34]
In
my view, the applicant’s health status is not so dire and his
medical ailments are currently well controlled and his release
for
health reasons, pending the review application, is accordingly not
justified. Further, his detention is neither unjust,
nor
incompatible with humanitarian considerations. He is also
facing a number of serious charges in Australia.
[35]
I
now turn to the legal issue of the lawfulness of the applicant’s
detention raised during argument. At the conclusion
of the
extradition enquiry and after the hearing of the evidence, the
judicial officer concerned must either commit or discharge
the sought
person. Section 10 (1) of the Act
[3]
,
stipulates the requirements that must be satisfied before a judicial
officer may commit the sought person.
[36]
If the conditions are met,
then the judicial officer must make an order committing the sought
person to prison. The conditions
that must be met before a
committal order is made are: - that the person must be liable to be
surrendered and: - that in the case
where such person is accused of
an offence, there must be sufficient evidence to warrant a
prosecution for the offence.
[37]
After the judicial officer
issues a committal order, the enquiry comes to an end. The
person is committed to prison to await
the decision with regard to
his or her surrender in accordance with section 11 of the Act.
This constitutes the start of
the executive phase of the extradition
process under section 11. The Minister may then decide to surrender
the sought person, alternatively,
he can decline to surrender the
sought person. It follows as a matter of logic that if a
committal order has not been issued,
then the Minister has no lawful
power to exercise his powers in terms of section 11 of the Act.
[38]
The
legal procedure to be followed under the Act was most aptly described
in
Robinson
[4]
,
as follows:
‘
In summary therefore, a
person whose extradition is requested by a foreign state in terms of
section 4(1) must be brought before
an extradition magistrate who
determines whether the person is liable to be surrendered in terms of
section 10 of the Act.
The Minister cannot make an order for
the extradition of any person unless a magistrate has committed that
person to prison after
a section 10 enquiry. An order of
committal by a magistrate is a prerequisite to the Minister’s
decision to surrender.
The extradition magistrate and the
Minister both play a role in the extradition if there is a section 10
enquiry’
[39]
It
is clear to me that the surrender decision under section 11 of the
Act, is subject to judicial control. This was discussed
in
Robinson
[5]
as
follows:
‘
It
is not appropriate to determine in this case the principles that
would govern a challenge to a decision by the Minister to extradite.
That had better be done when the occasion arises. There is no
need to say more than that the Act expressly contemplates that
any
Provincial or Local Division of the Supreme Court [could] upon
application made after reasonable notice to the Minister, [order
the]
discharge from custody [of the person sought to be extradited] on the
ground that there is not sufficient cause for his further
detention’
[40]
In my view, upon a proper
evaluation and interpretation of
Robinson,
the applicant falls to remain in custody pending his extradition to
Australia since his committal to custody is a requirement for
his
surrender to take place.
[41]
According to the
applicant, the review application in this matter is a review as
contemplated in terms of section 14 (e) (i) of
the Act. In this
connection the applicant has put up scant material in support of his
review to be advanced in Part B of
his application. For this
reason, it is very difficult, if not impossible to assess, even on a
superficial level, the applicant’s
prospects of success in
connection with his pending review application. To the extent
that it may be argued that the first
respondent bears the onus to
demonstrate there is not sufficient cause for the applicant’s
further detention, this in my
view would only occur in circumstances
where the applicant avers that he is the subject of an unlawful
detention
[42]
This is not readily
apparent in the present case as the applicant does not allege that
his incarceration is per se unlawful and
he further acknowledges that
if it had not been for the extradition warrant, he could have been
released from the custodial portion
of his sentence in August 2016.
Accordingly, in my view, as a matter of logic, the onus does not rest
on the first respondent
to justify the detention of the applicant.
Even if I am wrong on this score, I hold the view that insufficient
facts have
been set out by the applicant which, in turn, would
justify the applicant’s release from detention in these
somewhat peculiar
circumstances.
[43]
Further, taking into
account the representations made to the first respondent and the
reasons which have now been supplied, I hold
the view that the
applicant’s prospects of success in connection with his review
application are not by any means a racing
certainty and that
accordingly the interests of justice do not favour his release from
detention. This particularly where there
is a strong likelihood that
the applicant, if he were so released, would attempt to evade his
trial in Australia. I say this
because this is what he
precisely did in the past.
[44]
At the conclusion of the
extradition enquiry and after the hearing of the evidence, the
magistrate must either commit or discharge
the sought person.
After a magistrate issues a committal order, the section 10 enquiry
is at an end and the Minister may
then decide to surrender the sought
person, or he can decline to surrender the committed person for
various reasons and on certain
conditions. In the event that a
decision is rendered to surrender the sought person, then in that
event, the sought person,
falls to remain in custody, pending his
extradition, since his committal to custody is a requirement for the
surrender to take
place.
[45]
In
Robinson
[6]
,
the comment is made that a sought person’s remedy in these
circumstances is to review the Minister’s decision in terms
of
the Act. The application must be brought by the sought person
and the applicant bears the onus of proof to show that there
is not
sufficient cause for the applicant’s further detention.
[46]
As mentioned before, it is
significant that in this case that the appeal by the applicant was
withdrawn and the applicant elected
rather to pursue review
proceedings against the decision of the first respondent. This
review procedure is completely discrete
from the position where an
appeal has been heard or is to be heard under section 13 of the Act.
[47]
This must undoubtedly be
the correct position in law.
In
my view, it is accordingly of crucial importance to consider the
provisions of section 13 and section 14 of the Act, which provide
as
follows: -
Section 13
Appeal
‘
(1)
Any person against whom an order has been issued under section ten or
twelve may within fifteen
days after the issue thereof, appeal
against such order to the provincial or local division of the Supreme
Court having jurisdiction.
(2)
On appeal such division may make such order in the matter as it may
deem fit.
(3)
Any person who has lodged an appeal in terms of subsection (1) may at
any time before such
appeal has been disposed of, apply to the
magistrate who issued the order in terms of section 10 or 12 to be
released on bail on
condition that such person deposits with the
clerk of court, or with a member of the Department of Correctional
Services, or with
any police official at the place where such person
is in custody, the sum of money determined by the magistrate.
(4)
If the magistrate orders that the applicant be released on bail in
terms of subsection
(3), the provisions of sections 66, 67, 68 and
307 (3), (4) and (5) of the Criminal Procedure Act, 1977 (Act 51 of
1977 ), shall
mutatis mutandis apply to bail so granted, and any
reference in those sections to-
(a)
the prosecutor who may act under those sections, shall be deemed to
be a reference
to such person who may appear at an enquiry held under
this Act;
(b)
the accused, shall be deemed to be a reference to the person released
on bail under
subsection (3);
(c)
the court, shall be deemed to be a reference to the magistrate who
released such person
on bail; and
(d)
the trial or sentence, shall be deemed to be a reference to the
magistrate's order
under section 10 or 12’
Section 14 Limitation of
execution of orders for the surrender of any person
‘
No
order for the surrender of any person shall be executed-
(a)
before the period allowed for an appeal under section thirteen has
expired, unless
he has in writing waived his right of appeal;
(b)
before such an appeal has been disposed of;
(c)
if upon such an appeal his discharge from custody is ordered;
(d)
para was (d) deleted by section 21 of Act 101 of 1969;
(e)
in the case of an order of the Minister, if after the expiration of
two
months-
(i)
after the issue of an order of committal under section ten, where no
appeal has been or is to be
heard under section thirteen; or
(ii)
after an appeal under section thirteen has been dismissed, …any
provincial or local
division of the Supreme Court has upon
application made after reasonable notice to the Minister, ordered his
discharge from custody
on the ground that there is not sufficient
cause for his further detention;
(f)
in the case of an order of a magistrate, if after the expiration of
one month
after the order becomes operative, any provincial or local
division of the Supreme Court has upon application made after
reasonable
notice to the Minister, ordered his discharge from custody
on the ground that there is not sufficient cause for his further
detention
’
[48]
The magistrate’s order in this matter is consistent with the
requirements as set out in
the Act and is not the subject of any
appeal or review. The applicant does not seek to review or
appeal the magistrate’s
order. On a proper construction
of the provisions of section 13, read with section 14 of the Act, in
my view, the applicant
falls to remain in custody pending his
extradition, alternatively, pending this court’s judgment in
the review application
in connection with the surrender of the
applicant.
[49]
This must be so, because it is not the decision of the magistrate,
which is subject to the review
process, but rather the decision by
the first respondent. I fail to see on what basis, and I am not
persuaded, that this
court has the necessary authority in law, to
release the applicant on bail, pending the outcome of his review
application, albeit
in these peculiar circumstances. I am also
not persuaded that I have any authority to stay the extradition
process.
In paragraph [2.1.] of the notice of motion, an order
is sought for the extradition process to be stayed pending the
determination
of the review application. No case has been made
out for this relief.
[50]
The Constitutional Court in
Geuking
[7]
,
made
the legal position clear once a surrender has been ordered by
stating, inter alia, the following: -
‘
Extraditing
a person, especially a citizen, constitutes an invasion of
fundamental human rights. The person will usually be
subject to
arrest and detention, with or without bail, pending a decision on the
request from the foreign state. If surrender is
ordered, the person
will be taken in custody to the foreign state’
[51]
In the result, the following order is granted:
1.
That
the applicant’s application as set out in Part A of the notice
of motion dated the 15
th
of October 2020, is dismissed.
2.
That
the costs of and incidental to Part A of the application shall stand
over for determination with Part B of the relief contended
for on
behalf of the applicant.
3.
That
in the event that the applicant does not take the necessary steps to
set down for hearing the Part B of the application within
a period of
(30) days from date of this order, then in that event, the first
respondent shall be entitled to re-enrol this matter
on the same
papers (supplemented in so far as may be necessary), for the
determination of payment of the costs of and incidental
to the
proceedings incurred in the hearing of Part A of the application.
________________
E.
D. WILLE
(Judge
of the High Court)
[1]
Act
51 of 1977
[2]
During
2014
[3]
Extradition
Act, 67 of 1962
[4]
Director
of Public Prosecutions: Cape of Good Hope v Robinson
2005
(2) BCLR 103
(CC), paragraph 7
[5]
Robinson
at paragraph 55
[6]
At
paragraph 55
[7]
Geuking
v President of the Republic of South Africa and Others
(CCT35/02)
[2002] ZACC 29 at para 1