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[2016] ZASCA 191
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Patel v National Director of Public Prosecutions: Johannesburg (838/2015) [2016] ZASCA 191; 2017 (1) SACR 456 (SCA) (1 December 2016)
Links to summary
THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No.: 838/2015
In
the matter between:
USMAN
ISMAIL PATEL
APPLICANT
and
NATIONAL
DIRECTOR OF PUBLIC
PROSECUTIONS:
JOHANNESBURG
RESPONDENT
Neutral
citation:
Patel
v NDPP
(838/2015)
[2016] ZASCA 191
(01 December 2016)
Coram:
Maya
AP, Pillay, Swain and Van Der Merwe JJA and Schippers AJA
Heard:
15
November 2016
Delivered:
01
December 2016
Summary:
Extradition:
meaning of extraditable offence in Extradition Act 67 of 1962: double
criminality: conduct to be criminal under law
of requested State at
date of extradition request not date of commission of offence:
certificate under s 10(2) of the Extradition
Act: conclusive proof
that evidence warrants prosecution in foreign State: fugitive liable
to be surrendered to foreign State.
ORDER
On
appeal from:
Gauteng
Local Division of the High Court, Johannesburg (Coppin J and Vilikazi
AJ sitting as a court of appeal): judgment reported
sub
nom S v Patel
2016 (2) SACR 141
(GJ).
The
application for special leave to appeal is refused.
JUDGMENT
Schippers
AJA (Maya AP, Pillay, Swain, Van Der Merwe JJA concurring):
[1]
This
is an application for special leave to appeal referred for oral
argument in terms of s 17(2)(
d
)
of the
Superior Courts Act 10 of 2013
. The matter concerns the
requirements for extradition pursuant to the Extradition Act 67 of
1962 (the Act) and the extradition
treaty entered into between the
United States of America (the US) and the Republic of South Africa
(RSA), which came into force
on 25 June 2001 (the Treaty).
Specifically, the first issue concerns the double criminality
principle: whether, in order to constitute
an extraditable offence as
defined in the Act and the Treaty, the offence involved must be an
offence in both the requesting and
the requested State at the date of
its alleged commission, or at the date of the extradition request.
The second issue is whether
the certificate issued by the requesting
State, the US, stating that there is sufficient evidence to warrant
the applicant’s
prosecution in that country, complies with
s 10(2) of the Act.
The
facts and proceedings below
[2]
On
28 June 2011 the US Embassy in Pretoria sent a diplomatic note to the
Department of International Relations and Cooperation of
the RSA,
requesting the extradition of the applicant, a US citizen, in terms
of the Treaty. The note states that on 26 May 2011
the United States
District Court for the Northern District of California, San Jose,
issued a warrant for the applicant’s
arrest. He is wanted to
stand trial on charges of 12 counts of structuring, and aiding and
abetting, in violation of the United
States Code (USC), which carries
a maximum penalty of 10 years’ imprisonment and/or a fine of US
$50 000 per count;
and a further 43 counts of structuring in
violation of the USC, which carries a maximum penalty of 10 years’
imprisonment
and/or a fine of $500 000 per count. Under US law,
financial institutions are required to file a report, called a
currency
transaction report (CTR), when more than $10 000 in cash is
deposited into a bank account in a single day. It is an offence for
an individual with knowledge of the reporting requirements to cause,
or attempt to cause a financial institution not to file a
CTR, by
breaking down an amount of cash in excess of $10 000 into
smaller amounts for deposit (structuring deposits) in order
to evade
the currency transaction reporting requirements.
[3]
The
offences for which the applicant’s extradition is sought were
allegedly committed when he was the owner of a retail clothing
business in San Jose, California, that received US currency from
customers. When the business had in excess of $10 000 to
deposit, the applicant allegedly directed individuals working for him
to break up the currency into amounts less than $10 000 for
deposits
into bank accounts associated with his business. As a result, it is
alleged that between 23 May 2005 and 25 October 2007,
the applicant
caused $857 670 to be deposited into bank accounts in violation
of Title 31, USC ss 5324(a)(1) and 5324
(a)(3). The diplomatic
note also states that the offences with which the applicant is
charged are punishable by imprisonment of
at least one year and are
covered under Article 2.1 of the Treaty.
[4]
Pursuant
to the note, the Minister of Justice and Constitutional Development
(the Minister) issued a notification in terms of s 5(1)(
a
)
of the Act that he received a request for the surrender of the
applicant to the US. Consequently, the applicant was arrested
and appeared at an extradition enquiry in the Johannesburg
Magistrate’s Court. He was subsequently released on bail.
[5]
The
magistrate was of the view that the requirements for committal under
the Act were fulfilled. The double criminality rule had
been
satisfied: in the US, structuring is an offence punishable by more
than one year of imprisonment and in the RSA its equivalent
is s 28
read with ss 64 and 68 of the Financial Intelligence Centre Act 38 of
2001 (FICA). Section 28 of FICA requires an accounting
institution
(which includes a bank) to report to the Financial Intelligence
Centre the prescribed particulars concerning a transaction
concluded
with a client if that transaction involves an amount of cash in
excess of the prescribed amount. Section 64 makes it
an offence to
conduct a transaction with the purpose of avoiding a reporting duty
under FICA. Section 68 contains the penalty provisions.
It provides
that a person convicted of an offence referred to in Chapter 4 is
liable to imprisonment for a period not exceeding
15 years or a fine
not exceeding R100 million. The magistrate decided that the applicant
was liable to be surrendered to the US
and that there was sufficient
evidence to warrant his prosecution in that country. She therefore
issued an order in terms of s 10(1)
of the Act. The applicant
appealed that order to the Gauteng Local Division of the High Court
(the high court).
[6]
The
high court dismissed the appeal. On the first issue it held that the
date to determine compliance with the double criminality
principle is
the date of the extradition request (the request date) and not the
date on which the alleged offences were committed
(the conduct date).
It reasoned that the definition of ‘extraditable offence’
in the Act is not retrospective and refers
to conduct that must be an
offence in this country at the request date; and that Article 2.1 of
the treaty which must be interpreted
consistently with the definition
of extraditable offence in the Act, also does not refer to the
conduct date but envisages the
request date for the purpose of double
criminality. As to the second issue, the court found that a
certificate by Mr Peter Axelrod,
an assistant US attorney for the
Northern District of California, stating that there is sufficient
evidence under the laws of the
US to justify the applicant’s
prosecution, complies with s 10(2) of the Act.
Double
criminality
[7]
The
purpose of extradition is to secure the return for trial or
punishment, persons accused or convicted of crimes. Extradition
is
essentially a process of intergovernmental legal assistance.
Generally, the legal basis for extradition is treaty, reciprocity
or
comity. Comity is irrelevant for present purposes. Reciprocity
in extradition occurs when the request for surrender is
accompanied
by assurances of reciprocal extradition in comparable
circumstances.
[1]
[8]
The
principle of double (or dual) criminality is internationally
recognised as central to extradition law. The principle requires
that
an alleged crime for which extradition is sought is a crime in both
the requested and requesting States. In other words,
the crime
for which extradition is sought must be one for which the requested
State would in turn be able to demand extradition.
Oppenheim puts it
succinctly:
‘
No
person may be extradited whose deed is not a crime according to the
criminal law of the State which is asked to extradite as
well as the
State which demands extradition.’
[2]
[9]
Double
criminality, a substantive requirement for extradition, is predicated
on the premise of reciprocity in the sense of equivalent
mutual
treatment deriving from mutuality of legal obligations.
[3]
Shearer states that the double criminality rule is based on
reciprocity:
‘
The
validity of the double criminality rule has never seriously been
contested, resting as it does in part on the basic principle
of
reciprocity, which underlies the whole structure of extradition, and
in part on the maxim of
nulla
poena sine lege
.
For the double criminality rule serves the most important function of
ensuring that a person’s liberty is not restricted
as a
consequence of offences not recognised as criminal by the requested
State. The social conscience of a State is also not embarrassed
by an
obligation to extradite a person who would not, according to its own
standards, be guilty of acts deserving punishment. So
far as the
reciprocity principle is concerned, the rule ensures that a State is
not required to extradite categories of offenders
for which it, in
return, would never have occasion to make demand. The point is
by no means an academic one even in these
days of growing uniformity
of standards; in Western Europe alone sharp variations are found
among the criminal laws relating to
such matters as abortion,
adultery, euthanasia, homosexual behaviour, and suicide.’
[4]
[10]
The
principle of double criminality is closely related to extraditable
offences.
[5]
This is evident
from the provisions of both the Act and the Treaty.
The
relevant provisions of the Act and the Treaty
[11]
The
Act defines an ‘extraditable offence’ as meaning,
‘
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.’
[12]
Section
3(1) of the Act designates the persons liable to be extradited where
there is an extradition agreement between the RSA and
a foreign
State. It reads:
‘
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.’
[13]
Section
10 deals with the sufficiency of the evidence against the fugitive in
the foreign State and how that is proved. It reads:
‘
Enquiry
where offence committed in foreign State
(1)
If upon consideration of the evidence adduced at the enquiry referred
to in section 9(4)(
a
) and (
b
)(i) the magistrate finds
that the person brought before him or her is liable to be surrendered
to the foreign State concerned and,
in the case where such person is
accused of an offence, that there is sufficient evidence to warrant a
prosecution for the offence
in the foreign State concerned, the
magistrate shall issue an order committing such person to prison to
await the Minister’s
decision with regard to his or her
surrender, at the same time informing such person that he or she may
within 15 days appeal against
such order to the Supreme Court.
(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.’
[14]
Article
1 of the Treaty describes the obligation of the contracting States to
extradite as follows:
‘
The
parties agree to extradite to each other, pursuant to the provisions
of this Treaty, persons whom the authorities in the Requesting
State
have charged with or convicted of an extraditable offence.’
[15]
Article
2 defines an extraditable offence:
‘
1.
An offence shall be an extraditable offence if it is punishable under
the laws in both States by deprivation
of liberty for a period of at
least one year or by a more severe penalty.
2.
An offence shall also be an extraditable offence if it consists of
attempting or conspiring
to commit, or aiding, abetting, inducing,
counselling or procuring the commission of, or being an accessory
before or after the
fact to, any offence described in sub-article 1.’
[16]
To
sum up. Extradition under the Act and the Treaty is determined on the
basis of double criminality and a minimum punishment of
imprisonment
of one year. Extradition takes place in accordance with the terms of
the Treaty, which is based on reciprocity, subject
to the provisions
of the Act. Sufficient detail of the offence alleged against the
fugitive must be placed before the magistrate
to decide whether the
evidence is sufficient to warrant prosecution in the foreign
State.
[6]
A certificate by the
relevant authority in the foreign State constitutes conclusive proof
of that fact.
[7]
The
extraditable offence: conduct date or request date?
[17]
Counsel
for the applicant contended that the applicant is not extraditable
because the double criminality requirement has not been
met. The
offences with which he has been charged in the US were allegedly
committed between 2005 and 2007, when that conduct was
not criminal
and therefore not punishable in the RSA because s 28 of FICA
came into operation only in 2010. Therefore, so
it was contended, the
offences for which the applicant is being sought in the US are not
extraditable offences as contemplated
in the Act and the Treaty. In
support of this contention counsel relied on
R
v Bow Street Metropolitan Stipendiary Magistrate & others, Ex
parte Pinochet Ugarte (No 3)
;
[8]
Palazzolo
v Minister of Justice and Constitutional Development & others
;
[9]
and
Bell
v S
.
[10]
[18]
Counsel
for the respondent submitted that the request date is decisive for
determining double criminality and that if it were the
conduct date,
a safe haven would be created for fugitives from justice. This, in
turn, would seriously undermine mutual legal assistance
and
cooperation in criminal matters. It would also run counter to the
stated purpose of the Treaty: to provide for more effective
cooperation between the US and the RSA in the fight against crime.
[19]
Both
the Act and the Treaty do not expressly state that the relevant
offence must be an extraditable offence at the conduct date
or the
request date. When the wording of s 3(1) of the Act and Article 2.1
of the treaty is examined closely, it is apparent that
it can be
divided into two parts. First, the person accused of an extraditable
offence included in an extradition agreement must
be surrendered to
the foreign State in accordance with that agreement. Second, the
offence must be punishable under the laws of
both States by a term of
imprisonment of at least one year. Article 1 of the Treaty makes it
clear that the intention of the parties
to the Treaty is to extradite
on the basis of reciprocity and, in my view, the definition of
‘extraditable offence’,
s 3(1) of the Act and Article 2.1
of the Treaty must be read in that light.
[20]
There
is nothing in the definition of ‘extraditable offence’ in
the Act or Article 2.1 of the Treaty, which suggests
that the
fugitive’s conduct must have been criminal in the RSA at the
time that the alleged crime was committed in the foreign
State.
Instead, the definition of ‘extraditable offence’ refers
to any offence which ‘
is
punishable’ with a sentence of imprisonment of six months or
more. Likewise, Article 2(1) of the Treaty states that
an
offence shall be an extraditable offence ‘if it
is
punishable’ under the laws of both States by imprisonment of at
least one year.
[11]
The tenses
used are unequivocal on this point.
[21]
The
key lies in the repetition of the word ‘is’ in the two
provisions. It does not refer to or contemplate past conduct.
It
unquestionably refers to the present: is the offence an extraditable
offence, ie now, at the date of the request for extradition?
The same
applies to Article 2.1: is the offence punishable now under the laws
of both States by deprivation of liberty for at least
one year? If
so, then the person is liable to be surrendered to the foreign State.
Properly construed therefore, conduct which
actually took place in
the requesting State must be such that it
is
,
ie at the request date, punishable under the laws of the RSA. This
interpretation of ‘extraditable offence’ and Article
2.1
is straightforward, accords with the purpose of the double
criminality principle and is easy to apply.
[22]
On
this construction there can be no violation of the principle of
legality (
nulla
poena sine lege
- no punishment without a law), nor the imposition of retrospective
criminal liability. This is because the applicant’s conduct
will have had to have been an offence in the law of the requesting
State, the US, at the time of its commission if he is to be
convicted; and that same conduct would have been an offence under the
law of the requested State, the RSA, at the date of the request
for
extradition.
[12]
[23]
In
this regard, the limited function of an extradition enquiry must be
emphasised. In
Geuking
,
[13]
Goldstone J said:
‘
Extradition
proceedings do not determine the innocence or guilt of the person
concerned. They are aimed at determining whether or
not there is
reason to remove a person to a foreign State in order to be put on
trial there. The hearing before the magistrate
is but a step in those
proceedings and is focused on determining whether the person
concerned is or is not extraditable.’
[24]
Section
3(1) of the Act, which states that a person accused of an
(extraditable) offence is liable to be surrendered under an
extradition
agreement regardless of whether the offence was committed
before or after the commencement of the Act or the coming into force
of that agreement, likewise is not retrospective. Section 3(1) does
nothing more than provide a legal basis, under the Act, to initiate
or continue extradition proceedings in respect of offences committed
prior to the coming into force of the Act or an extradition
agreement. In other words, a fugitive may be extradited in terms of
the Act, despite the fact that he committed the crime before
the
coming into operation of the Act or an extradition treaty. This
interpretation is consistent with Article 23 of the Treaty
which
states, in terms, that the Treaty applies to any offence contemplated
in Article 2, whether committed before, on, or after
the date upon
which the Treaty enters into force.
[25]
The
conclusion that the words, ‘is punishable’ refer to the
present, may be illustrated by reference to
Re
Ugarte; R v Evans & others ex parte Ugarte.
[14]
The case concerned Spain’s attempt to extradite the former
Chilean Head of State from the United Kingdom to stand trial in
Spain
on several charges of torture committed (mainly in Chile) between
1972 and 1990. One of the issues which had to be
decided was
whether the double criminality rule must be satisfied at the conduct
date or the request date. At issue was the proper
construction of s 2
of the UK Extradition Act, 1989, the relevant provisions of which
read:
‘
(1)
In this Act … “extradition crime” means-
(a)
conduct in the territory of a foreign state … which, if it
occurred in the United Kingdom, would constitute an offence
punishable with imprisonment for a term of 12 months, or any greater
punishment, and which, however described in the law of the
foreign
State, … is so punishable under that law;’
[26]
The
case initially came before the Divisional Court. Lord Bingham CJ gave
the argument that the double criminality requirement must
be met at
the conduct date short shrift. He said:
‘
I
would however add on the retrospectivity point that the conduct
alleged against the subject of the request need not in my judgment
have been criminal here at the time the alleged crime was committed
abroad. There is nothing in s 2 which so provides. What is
necessary
is that at the time of the extradition request the offence should be
a criminal offence here and that it should then
be punishable with 12
months’ imprisonment or more. Otherwise s 2(1)(a) would have
referred to conduct which would at the
relevant time “have
constituted” an offence and s 2(2) would have said “would
have constituted”. I
therefore reject this argument.’
[15]
[27]
Lord
Lloyd’s rejection of the argument in
Pinochet
No. 1
[16]
was equally trenchant. He said:
‘
It
was argued that torture and hostage-taking only became extradition
crimes after 1988 (torture) and 1982 (hostage-taking) since
neither
section 134 of the Criminal Justice Act 1988, nor section one of the
Taking of Hostages Act 1982 are retrospective. But
I agree with the
Divisional Court that this argument is bad. It involves a
misunderstanding of section 2 of the Extradition Act.
Section 2(1)(a)
refers to conduct which
would
constitute an offence in the United Kingdom now. It does not refer to
conduct which
would
have
constituted an offence
then
.’
[28]
I
interpose to say that the language of the definition ‘extraditable
offence’ and Article 2.1 of the treaty is even
plainer: an
extraditable offence is one that ‘
is
punishable’ under the laws of both States by imprisonment of at
least one year.
[17]
Further,
unlike the English statute, the Act and the Treaty are not
conditional expressing a hypothesis (conduct in the foreign
State
which, if it occurred in the UK, would constitute an offence). The
approach of Lord Bingham CJ (who incidentally authored
a book on the
rule of law
[18]
) that the
double criminality rule requires the conduct to be criminal at the
request date is, in my respectful opinion, correct.
[29]
When
the matter came again before the House of Lords, Lord
Browne-Wilkinson agreed with Lord Bingham CJ and Lord Lloyd that if
read in isolation, the words ‘if it occurred … would
constitute’ read more easily as a reference to a hypothetical
event happening now, ie at the request date, rather than to a past
hypothetical event, ie at the conduct date. However, Lord
Browne-Wilkinson (whose analysis was adopted by all the members of
the House) was of the view that the double criminality rule
required
the conduct to be criminal under English law at the conduct date and
not the request date. He reasoned that the word ‘it’
in
the phrase ‘if it occurred’ is a reference back to the
actual conduct of the individual abroad which, by definition,
is a
past event. This conclusion rested on two main grounds. First,
on an interpretation of the provisions of the Extradition
Act 1989, a
magistrate has to be satisfied that if the conduct
had
taken
place in the UK, the evidence was sufficient to warrant a trial of
the fugitive in the foreign State. This, Lord Browne-Wilkinson
said, was a clear reference to the position at the date when the
conduct in fact occurred. Second, under the UK Extradition
Act,
1870 the double criminality rule required the conduct to be criminal
under English law at the conduct date. That Act
specifically
provided that a list of crimes had to be construed according to the
law existing in England
at
the date of the alleged crime
.
[19]
[30]
It
follows that the applicant’s reliance on
Pinochet
(No 3)
is misplaced. The House of Lords based its conclusion on an
interpretation of the specific provisions of the UK Extradition Acts.
For the same reason,
Palazzolo
,
[20]
which cited
Pinochet
(No 3)
as authority for the proposition that the conduct date is decisive
for the purpose of double criminality, does not assist the applicant.
To the extent that
Palazzolo
holds that the double criminality rule requires a fugitive’s
conduct to be criminal under South African law at the date of
the
commission of the offence in the foreign State, it is overruled.
[31]
Finally
on this aspect,
Bell
v
S
,
referred to above, also does not assist the applicant. In that case
the Attorney-General of Australia requested Bell’s extradition.
It was alleged that on numerous occasions he had indecently assaulted
boys in Australia. At an extradition enquiry the magistrate
found
that there was sufficient evidence to warrant Bell’s
prosecution in Australia, and he made an order in terms of s 10(1)
of the Act. On appeal the high court held that out of the 215
offences for which he was being sought, Bell could not be extradited
for 40 offences, because the right to institute a prosecution for
those offences had lapsed after the expiration of 20 years from
the
time when they were committed, in terms of
s 18
of the
Criminal
Procedure Act 51 of 1977
. And if he could not be prosecuted for
those offences, then they were not punishable under South African law
as contemplated
in the definition of extraditable offence in the
Act. The court therefore confirmed the order committing Bell to
prison to
await a decision of the Minister with regard to his
surrender to Australia, but excluded the 40 offences.
[32]
The
applicant submits that the court in
Bell
v S
applied the conduct date to determine whether the offences were
punishable in South Africa and that had it applied the request
date
as the determining factor, then extradition should have been granted
on all the requested offences despite the fact that many
of them were
not prosecutable and punishable in this country.
[33]
But
that is not so.
Bell
v S
illustrates
exactly the opposite. The court decided that the 40 offences in
respect of which the fugitive’s extradition was
sought, were
not punishable
as
at the request date
.
The operation of a statute of limitations is a recognised ground for
denying extradition. Whether extradition should
be denied on
this ground must logically, and necessarily, be decided at the
request date, since a court in the requested State
must decide
whether the offence ‘
is
punishable’ under its own law, ie at the date of the request
for extradition. Bell’s conduct in relation to the
40
offences was indeed criminal at the conduct date, but his extradition
for those offences became barred by the lapse of time
under South
African law.
[34]
Further,
if the conduct date is decisive, Bell should have been extradited for
the 40 offences as well, because then they would
not have been hit by
s 18
of the
Criminal Procedure Act. The
effect of the applicant’s
argument is that a person could then be extradited for an alleged
offence which is no longer punishable
(or indeed for conduct which is
no longer an offence) in South African law. This would not only be
unjust, it would also violate
accepted principles of extradition law.
[35]
A
construction which interprets Article 2.1 of the Treaty as referring
to the request date, also gives effect to intergovernmental
cooperation, as the extradition in this case is a treaty matter
bearing on the rights and duties of States. And it is generally
a fundamental rule of the Vienna Convention on the Law of Treaties
that a treaty must be interpreted according to the ordinary
meaning
of the words used in the text.
[21]
More than a century ago Lord Russell CJ said that treaties should
receive a liberal interpretation, ‘which means no
more than
that they should receive their true construction according to their
language, object and intent’.
[22]
[36]
Thus,
in
Canada
v Schmidt
,
[23]
La Forest J said:
‘
I
would add that the lessons of history should not be overlooked. Sir
Edward Clark instructs us that in the early 19
th
century the English judges, by strict and narrow interpretation,
almost completely nullified the operation of the few extradition
treaties then in existence: see
A
Treatise Upon the Law of Extradition
(4
th
ed., 1903), c. V. Following the enactment of the British
Extradition
Act, 1870
(U.K.), 33 & 34 Vict., c. 52, upon which ours is modelled, this
approach was reversed. The present system of extradition works
because courts give the treaties a fair and liberal interpretation
with a view to fulfilling Canada’s obligations, reducing
the
technicalities of criminal law to a minimum and trusting the courts
in the foreign country to give the fugitive a fair trial
….’
[37]
Similarly,
in
Rey
v Government of Switzerland
,
&
others
(Bahamas)
[24]
Lord Steyn said:
‘
The
treaty was intended to serve the purpose of bringing to justice those
who are guilty of grave crimes and it ought
prima
facie
to be accorded a broad and generous construction so as to promote
that objective.’
[38]
That
is the case here.
The
Treaty recites the mutual desire to provide for more effective
cooperation between the RSA and the US in the fight against crime.
This
is underscored by the fact that
the
contracting States have expressly excluded the double criminality
rule as regards offences against laws relating to taxation,
customs
duties, exchange control and other revenue matters.
[25]
An approach in terms of which the conduct date is decisive for the
purpose of double criminality would, in my opinion, undermine
mutual
cooperation between the States;
[26]
and negate the very purpose of a bilateral extradition treaty: the
parties enter into reciprocal rights and duties in order to
bring to
justice those who have committed serious crimes.
[39]
This,
of course, is not to say that the rights of the fugitive are
unimportant, to the contrary. As was held in
Geuking
,
the magistrate at an extradition enquiry must be satisfied that the
conduct alleged by the foreign State constitutes criminal
conduct in
the RSA and that there is sufficient evidence to warrant prosecution
in the foreign State. The fugitive is entitled
to procedural fairness
at every stage of the enquiry.
[27]
[40]
For
the above reasons I have come to the conclusion that the double
criminality rule must be satisfied as at the date of request
for the
extradition of a fugitive, not the date on which he is alleged to
have committed the offences in the foreign State. The
court a quo
thus rightly dismissed the appeal under s 10(1) of the Act.
The
s 10(2) certificate
[41]
The
applicant’s counsel submitted that the s 10(2) certificate is
fatally defective on two grounds. The first is that the
certificate
does not state that there is sufficient evidence to ‘warrant’
the applicant’s prosecution in the
US. Instead, it states
that there is sufficient evidence to ‘justify’ his
prosecution. The second is that
the certificate does not
adequately describe the offences for which the applicant is to be
prosecuted: it is ‘ambiguous,
ambivalent and unnecessarily
vague.’ These submissions may be dealt with briefly. They
have no merit.
[42]
As
already stated, s 10(1) of the Act requires the magistrate at an
extradition enquiry to be satisfied that there is sufficient
evidence
to warrant a prosecution for the offence in the foreign State
concerned. Sufficient details of the offence must be placed
before
the magistrate to make that determination. According to s 9(3)
of the Act, that evidence may take the form of a deposition
or
statement on oath or affirmation, whether or not it is taken in the
presence of the person concerned, and must be duly authenticated
in
the manner provided in s 9(3)(
a
)(iii)
of the Act.
[43]
Nothing
turns on Mr Axelrod’s statement in the s 10(2) certificate that
the evidence is sufficient to ‘justify’
the applicant’s
prosecution in the US. According to the Oxford English
Dictionary the word ‘warrant’ also
means ‘to
justify’.
[28]
And it is
obviously used in that context in s 10(1) of the Act, which requires
sufficient (not conclusive) evidence to justify
(not guarantee) the
prosecution in the foreign State. It is thus not surprising that the
Afrikaans text states that the magistrate
must be satisfied, ‘dat
daar voldoende getuienis is om ‘n vervolging weens die misdryf
in die betrokke vreemde Staat
te
regverdig
’.
[29]
[44]
Moreover,
the Constitutional Court has held that the s 10(2) certificate is
consistent with the Constitution.
[30]
In this regard it found that once the double criminality rule has
been satisfied, the magistrate must rely on the certificate as
regards the narrow question whether the fugitive’s conduct
warrants prosecution in the foreign country, as that question
would
not normally be within the knowledge or expertise of South African
lawyers or judicial officers. An extradition enquiry is
not a trial.
The process involves no adjudication of guilt or innocence.
[31]
[45]
As
to the second ground, there is no complaint that the evidence placed
before the magistrate does not comply with the provisions
of s 9(3)
of the Act. Neither is there any complaint that there has been no
compliance with Article 9 of the Treaty, which lists
the required
supporting documents in an extradition request; or Article 10, which
governs the admissibility of documents in evidence
in extradition
proceedings. The submission that the s 10(2) certificate is vague or
ambiguous, or that the offences ought to have
been described with
greater precision is simply insupportable on the facts. The
offences against the applicant are clearly
set out in the indictment.
Moreover, the evidence against him is described in considerable
detail in the affidavits of Mr Axelrod
and Mr Scott Lee, a special
agent in the US Department of Homeland Security. Mr Lee is the case
agent responsible for the investigation
of the applicant.
Conclusion
[46]
The
applicant has not shown any special circumstances that warrant the
granting of special leave to appeal. In the result,
the
application for special leave to appeal must be refused.
[47]
The
following order is issued:
The
application for special leave to appeal is refused.
_______________________
A
Schippers
Acting
Judge of Appeal
Appearances
For
the Appellant:
M
R Hellens SC (with C T H McKelvey)
Instructed by:
BDK Attorneys, Johannesburg
Symington
& De Kok, Bloemfontein
For
the Respondent: D Barnard
Instructed by:
The Director of Public Prosecutions, Johannesburg
The
Director of Public Prosecutions, Bloemfontein
[1]
M Cherif
Bassiouni
International
Extradition United States Law and Practice
5
ed (2007) Chapter VIII;
Harksen
v President of the Republic of South Africa & others
2000 (2) SA 825
(CC) para 3.
[2]
L Oppenheim
International
Law
8 ed (1955) at 701.
[3]
Bassiouni op
cit fn 1 at 490.
[4]
I A Shearer
Extradition
in International Law
(1971) at 137-138.
[5]
Bassiouni op
cit fn 1 at 491.
[6]
Geuking v
President of the Republic of South Africa & others
2003 (1) SACR 404
(CC) para 39.
[7]
Geuking
fn 6 paras 44-46.
[8]
R v Bow
Street Metropolitan Stipendiary Magistrate & others, Ex parte
Pinochet Ugarte (No 3)
[1999]
2 WLR 824
; [2000] 1AC 147 (HL).
[9]
Palazzolo
v Minister of Justice and Constitutional Development & others
(4731/2010)
[2010] ZAWCHC 422
(14 June 2010).
[10]
Bell
v S
[1997]
2 All SA 692 (E).
[11]
Emphasis
added.
[12]
See C
Warbrick ‘
Extradition
Law Aspects of Pinochet 3
’
(1999) 48
International
and Comparative Law Quarterly
958 at 964.
[13]
Geuking
fn 6 para 44.
[14]
Re Ugarte;
R v Evans & others ex parte Ugarte
QB
[1998];
Bartle
and the Commissioner of Police for the Metropolis & others, Ex
parte Pinochet, R v
[1998]
3 WLR 1456; [1998] 4 ALL ER 897 (HL).
[15]
Footnote
14 at 10.
[16]
R v Bow
Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte
(No 3)
fn
8;
Bartle
fn
14 at 1481.
[17]
Emphasis
added.
[18]
T Bingham
The
Rule of Law
(2010). Of the principle that there should be no punishment
without a law, Lord Bingham says, ‘This is a rule of
simple
fairness, a rule which any child would understand, and it has
featured in most legal systems since Roman times’.
[19]
The temporal
element of double criminality in Pinochet No 3 has been the subject
of much criticism. See in this regard M
Birnbaum ‘
Pinochet
and Double Criminality
’
(2000)
Criminal
LR
127 at 135; Warbrick fn 12; M du Plessis ‘
The
Pinochet cases and South African Extradition Law
’
(2000)
SAJHR
669
at 686-688; and E Du Toit et al
Commentary
on the
Criminal Procedure Act
vol
2 at B20B-B20B-1.
[20]
Footnote 9.
[21]
Article 31 of
the Vienna Convention.
[22]
Re Arton
(No 2)
[1896] 1 QB 509
at 517.
[23]
Canada v
Schmidt
[1987] 1 SCR 500
at 524.
[24]
Rey v
Government of Switzerland
,
&
others
(Bahamas)
[1999] AC 54
(PC) at 62G-H.
[25]
Article 2(6)
of the treaty reads:
‘
Where
extradition of a person is sought for an offence against a law
relating to taxation, customs duties, exchange control, or
other
revenue matters, extradition may not be refused on the ground that
the law of the Requested State does not impose the same
kind of tax
or duty or does not contain a tax, customs duty, or exchange
regulation of the same kind as the law of the Requesting
State.’
[26]
M du Plessis
fn 19.
[27]
Footnote 6
paras 45 and 47.
[28]
W
Little et al
The
Shorter Oxford English Dictionary on Historical Principles
3 ed (1988) vol 1 at 2507.
[29]
Section 10
of
the Wet op Uitlewering 67 van 1962 (emphasis added). The English
text reads: ‘that there is sufficient evidence to warrant
a
prosecution for the offence in the foreign State concerned.’
[30]
Geuking
fn 6 para 51.
[31]
Geuking
fn 6 paras 41, 44 and 45.