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[2015] ZAGPJHC 188
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Patel v S (A101/2014) [2015] ZAGPJHC 188; [2015] 4 All SA 382 (GJ); 2016 (2) SACR 141 (GJ) (18 August 2015)
REPUBLIC
OF
SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO: A101/2014
DATE: 18 AUGUST 2015
In the matter between:
PATEL USMAN
ISMAIL
..................................................................................................
APPELLANT
And
STATE
..............................................................................................................................
RESPONDENT
J U D G M E N T
COPPIN J:
The United States of America (“the USA”) has requested
the extradition of the appellant, its citizen who is presently
in
the Republic of South Africa (“the RSA”), with the
expressed intent to prosecute him for offences he is alleged
to have
committed in that country.
Pursuant to
that extradition request, the appellant was arrested and he appeared
in the magistrate’s court in Randburg in
terms of the
provisions of the Extradition Act, No. 67 of 1962 (“the Act”).
Having found, in effect, that the
appellant is liable to be
surrendered to the USA, the magistrate, on 15 February 2013, issued
a committal order in terms of section
10(1)
[1]
of the Act, committing the appellant to prison to await the decision
of the Minister of Justice and Constitutional Development
(‘the
Minister’) regarding his surrender to the USA.
This is an appeal against the committal order with the leave of the
court a quo. The appellant, who is out on bail pending the
outcome
of this appeal, was legally represented throughout the proceedings
in the magistrate’s court.
Briefly, as an appellant alleges on appeal that the magistrate erred
in several respects, more particularly:
3.
4.
4.1
Firstly,
in finding that the offences in respect of which the USA has
requested his extradition, are extraditable offences. In short,
the
argument raised by the appellant, which will be dealt with in detail
later, is that the requirement of double criminality has
not been
satisfied. According to this argument, it has not been established
that the alleged conduct of the appellant, which constituted
offences
in the USA, also constituted offences in this country at the time of
their commission in the USA;
4.2
Secondly,
that the certificate furnished by the Prosecuting Authority in the
USA, in support of the appellant’s extradition,
does not comply
with the prescriptive requirements of section 10(
2
)
[2]
of the Act.
In response
thereto, Counsel for the State contended that the double criminality
rule had been satisfied and even though, both,
the extradition
treaty between the USA (the Requesting State) and the RSA (the
Requested State),
and
the Act, appeared silent on whether double criminality should
be determined with reference to the time of the
alleged
commission of the offences, or the time of the extradition request,
the requirement was met if the alleged conduct constituted
an
offence in both the Requesting and Requested States
,
at
least, at the time of the extradition request.
It was the
State’s argument that the certificate issued by the
Prosecuting Authority in the USA met the statutory requirements
and
that the magistrate correctly accepted it as conclusive proof of the
fact that there was sufficient evidence to warrant the
prosecution
of the appellant in the USA.
BACKGROUND
On 7 March 2011, the USA Embassy in Pretoria addressed a diplomatic
note to the relevant authorities in the RSA, requesting the
appellant’s extradition to the USA for offences mentioned in
the warrant of arrest issued on 26 March 2011 by the Northern
District Court of California in the USA. Attached to the note are,
inter alia, the following documents, namely:
i.
A
certificate issued and signed on 17 June 2011 by Mr David Warner, in
his ex officio capacity as the associate director of the
office of
International Affairs, Criminal Division, and the Department of
Justice of the USA.
ii.
A
certificate issued and signed on 16 June 2011 by Mr Peter B. Axelrod
(“ Mr Axelrod”), in his capacity as assistant
in the
United States’ Attorney’ Office, in the Northern District
of California. This is a certificate issued, purportedly
in
compliance with the provisions of s 10(2) of the Act. It is further
stated in this certificate that the Requesting State requests
the
extradition of the appellant from the Requested State in order to
prosecute him for financial crimes associated with banking
regulations e.g. structuring of bank deposits in violation of the
law. The certificate indicates that Mr Axelrod is a duly appointed
Assistant United States Attorney in the Northern District of
California who is in charge of the prosecution of the appellant. Mr
Axelrod certifies that the prosecution of the appellant is justified
in the light of evidence contained in the extradition documents
and
under the laws of the USA.
iii.
An
affidavit deposed to by Mr Axelrod on 16 June 2011 at San Francisco,
California. In essence his affidavit contains a comprehensive
summary
of the facts and procedural history of the case.
iv.
An
indictment, dated 18 August 2010;
v.
A
tolling agreement between the appellant and the Requesting State
entered into on 2 January 2011 and counter- signed by Mr Charles
J
Smith, the appellant’s attorney.
vi.
A
copy of the United States Code, Title s2, title 22 of s4221, title 31
United States Code s5313 and s5324, relevant code of Federal
Regulations and the USA’s Federal rules of Criminal Procedure.
vii.
An
affidavit deposed to by Mr Scott Lee on 9 July 2011, in his capacity
as the special agent of the USA’s Immigration and
Customs
Enforcement Department.
The request
for the extradition of the appellant was made pursuant to an
Extradition Treaty between the RSA and the USA
[3]
(”the treaty”).
On 28 April 2011 the appellant was arrested and he appeared in the
Magistrates’ court.
On 21 July
2011 the Minister issued a notice in terms of section 5
(1)(a)
the Act. In essence, it is a confirmation of the receipt of a
request for the surrender of the appellant to the Requesting State
.
On 15 January 2013, the magistrate issued a committal order in terms
of the Act. It was the magistrate’s finding that the
alleged
offences, for which the appellant’s extradition is being
sought, are extraditable offences and the magistrate
took,
inter alia, the following factors into account:
11.1
That
the appellant is alleged to have committed banking related
structuring offences in the USA, which offences are punishable by
a
sentence of imprisonment of more than 1 (one) year. The equivalent
charges in the RSA would have been charges of contravening
s28 and
s29 of the Financial Intelligence Act 38 of 2001 (“FICA”);
11.2
The
structuring offences were allegedly committed (as per the indictment
issued by the prosecuting authority of the Requesting State)
between
2005 to October 2007.
11.3
The
FICA law of the RSA came into operation in 2010.
The magistrate concluded that the appellant’s defence that the
offences were not extraditable, because the requirement
of double
criminality was not met, could not hold. The magistrate was of the
view that even if the Act was silent on whether
the offence in
respect of which extradition is sought had to be a crime in the
requested State, either, at the time the alleged
offence was
committed in the requesting State, or at the time of the extradition
request, the relevant date was the date of the
extradition request.
The
magistrate relied on section 3(1) of the Act
[4]
and interpreted it to cover offences committed prior to the
operation of the Act, or offences committed prior to the conclusion
of the treaty.
It was the
finding of the magistrate that the conduct of the
appellant
was adequately described in the indictment and the magistrate relied
on section 10(1) of the Act which, provides,
inter
alia
,
that if there is sufficient evidence to warrant the prosecution, the
magistrate shall issue an order committing the person in
question to
prison. The magistrate concluded that the certificate furnished by
Mr Axelrod was not fatally defective for not using
the exact wording
of section 10(2) and accepted it as conclusive proof that there was
sufficient evidence to warrant the appellant’s
prosecution in
the USA.
THE ISSUES ON APPEAL
As stated at the onset, there are,
essentially, two core issues for resolution. The core issues are
whether:
The offences
in respect of which the appellant
is
sought are “extraditable offences”; and
The certificate furnished by the Prosecuting Authority of USA in
support of the appellant’s extradition, which stated
that his
prosecution is justified on the basis of evidence contained in the
extradition documents and under the laws of the
Requesting State,
complies with the requirements of the Act, in particular, those in
section 10(2).
I shall deal with each in turn.
EXTRADITION AND “DOUBLE CRIMINALITY”
The treaty,
which was ratified on 9 November 2000 and published in the
Government Gazette
[5]
, does not deal expressly with the time issue.
In its Preamble the treaty expresses the
need for more effective cooperation between the two States in the
fight against crime,
and for that purpose, to conclude a new treaty
for the extradition of offenders. Article 2(1) then provides that 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 means of a more severe penalty. Article 2(3)
of the treaty provides that an offence is extraditable, irrespective
of whether the laws of the Requesting and Requested States place the
offence within the same category of offences, or describe
the
offences by the same terminology.
The Act also
does not deal expressly with timing. In section 1 of the Act an
“extraditable offence” is defined as
“
...any
offence which in terms of the law of the Republic of South Africa
and 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 such foreign State
.”
Section 2 of
the Act ,inter alia, provides that the President may enter into an
agreement with a foreign State for the surrender,
on a reciprocal
basis, of persons accused, or convicted of the commission in that
State or in the RSA, of an “extraditable
offence or offences”
specified in the agreement.
In
terms of section 3(1) of the Act: “
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...”.
In order to determine whether the person brought before him is
liable to be surrendered to the Requesting State, and where the
request for extradition is made on the basis of an extradition
agreement, the magistrate, of necessity, must find that the offence,
which the person is accused of committing in the foreign State, is
an ‘extraditable offence’ as defined in the Act.
The
definition of such an offence in the Act, clearly requires that it
must be an offence in both, the Requesting and the Requested
States.
The critical question, however, is at what stage?
22. The
submission made on behalf of the appellant is that the offences, in
respect of which the extradition of the
appellant
is
being sought, are not extraditable offences, because the double
criminality principle has not been satisfied. According to this
argument, the principle is fundamental. It rests in part on the
principle of reciprocity and in part on the principle expressed
in
the maxim,
null
poena sine lege .
It serves to ensure that a person’s freedom is not curtailed
because of offences which are not recognised as criminal by
the
requested State
[6]
.
23. According to this argument, the principle is satisfied when the
alleged offence was an offence in the Requested State at the
same
time it was allegedly committed in the Requesting State
.
In this case the alleged offences, which the Requesting
State seeks to have the appellant extradited for, were not offences
in the
RSA when they were allegedly committed in the USA. They
are alleged to have been committed in the USA in the period May 2005
to 25 October 2007.
24.
The RSA’s FICA legislation, which
,
inter alia,
regulates cash transactions above a prescribed limit involving
certain defined institutions and in terms of section 28, requires
reporting by those institutions of such transactions
[7]
,
and in terms of section 64, criminalises conduct purposed to avoid
the reporting
[8]
,
was passed in 2001. However, section 64 only came into operation on 3
February 2003 and section 28 only came into operation on
4 October
2010. Furthermore, the relevant FICA regulations, namely,
Regulation 22B, which prescribes the amount and Regulation
22C, which
prescribes the the information to be reported on, were only inserted
in the regulations published under FICA on 1 October
2010. It was
submitted further, that FICA, including the relevant sections and
regulations, did not apply retrospectively. The
main argument being
that when the offences were allegedly committed by the appellant in
the Requesting State they were not yet
offences in the RSA.
25.The offences which are alleged to have been committed by the
appellant, according to the extradition request of the USA
authorities,
involves conduct purposed at evading the reporting
requirements of section 5315
(a)
of Title 31, of the United
States Code, and the regulations promulgated under it, and causing
and attempting to cause a domestic
financial institution to fail to
file a report required under section 5313(a) of Title 31 and the
regulations prescribed under
that section, as part of a pattern of
illegal activity involving more than $100 000 in a 12-month
period (12 counts). These
crimes were allegedly committed by the
appellant in the USA from 23 May 2005 to 23 July 2007.
26. In support
of his submission concerning the meaning of the principle of double
criminality, counsel for the appellant relied
on the views expressed
by academic writers, and also relied on various decisions,
particularly, the decisions in
R
v Bow St Magistrate, Ex Parte Pinochet (No 3)
[9]
,
Bell v State
[10]
,
and
VR
Palazollo v The Minister of Justice and Constitutional
Development
[11]
.
27.
Bell v State
concerned a request by Australia for the
extradition of Bell , who was in the RSA, for various offences he
allegedly committed
in Australia. The charges against Bell referred
to incidents that had taken place more than 20 years earlier and
included alleged
acts of indecency, indecent assaults, all allegedly
committed in February 1977 with young boys between the ages of 11 and
18. The
Eastern Cape Division held that while there was no provision
in the Australian law which provided that the right to institute a
prosecution for any offence shall lapse after the expiration of 20
years from the date when the offences were allegedly committed,
in
terms of our law offences that were committed more than 20 years ago
were not punishable and therefore the offences in respect
of which
Australia requested Bell’s extradition were not extraditable
offences. The court further held that if a person could
not be
prosecuted for an offence in terms of our law, he could not at that
stage be punished for that offence. At the time when
the extradition
enquiry was conducted, no treaty existed between Australia and South
Africa.
28. Relying on that decision, counsel for the appellant submitted
that Bell was not liable to be surrendered because he could not
be
prosecuted in the RSA for the alleged offences, and that similarly,
the appellant is not liable for surrender, because he cannot
be
prosecuted in the RSA for the equivalent offences, because they were
not offences in the RSA at the time of their alleged commission
in
the USA.
29. Counsel for the appellant, however, mainly relied on the decision
of the House of Lords in
R v Bow St Magistrate, Ex Parte Pinochet
(No 3),
which was also referred to in
Palazollo.
That case
concerned a request by Spain to the United Kingdom (“UK”)
for the extradition of Pinochet for crimes of torture,
alleged to
have been committed in Chile before the UK incorporated the
Convention against Torture and Other Cruel Inhuman or Degrading
Treatment or Punishment into its laws. At the
time
Pinochet
was alleged to have committed the acts of
torture it was not an offence in the UK. The House of Lords
found it necessary
to determine the meaning of the principle of
double criminality as contained in the Extradition Act of the UK, and
more particularly,
whether the crimes, in respect of which
Pinochet’s
extradition was being sought, constituted crimes in the UK at the
time when they were allegedly committed, or at the time of the
extradition request. The House of Lords held that they should
have been offences in the UK at the time of their commission.
30.
In
Palazzolo
the extradition of P was sought by Italy from the RSA in terms of The
European Convention on Extradition (1957). The court held
that
domestically the Act prescribes the manner in which the extradition
request is to be dealt with by our government and the
courts. The
court held that article 2 of that Convention constituted its double
criminality requirement. The article provides:
“
Extradition
shall be granted in respect of offences punishable under the laws of
the requesting party and of the requested party
by deprivation of
liberty or under a detention order for a maximum period of at least
one year or by more severe penalty..”.
The
court noted that the request did not refer to an applicable
counterpart offence in this country and also noted that the reliance
by the respondents in that case on the organised crime legislation in
force in this country at the time, was misplaced, because
they did
not provide for offences that were substantially similar to those
provided for in the Italian Criminal Code, namely, the
joining of a
‘Mafia’ type of organisation. However, more importantly,
in respect of the meaning of double criminality,
the court relied on
the decision in the
Pinochet
[12]
case. It held that the date for determining the double criminality is
the date of the commission of the offence.
31.
Counsel for the State argued that the logic of taking the time of the
extradition request as decisive for determining double
criminality is
specifically relevant in the case of statutory offences, because the
legislative programmes of the different States
do not follow the same
time schedule. He disputed the correctness of the decisions in
Pinochet
and
Palazzolo.
,
and
relied on the views expressed by Prof. J Dugard
[13]
and the authors of “
The
Commentary on the Criminal Procedure Act”,
Du
Toit
et
al
[14]
,
namely,
that it is correct to interpret s 1, read with s 3 of the Act, to
mean that the “
critical
date is that of the extradition request”.
Du
Toit
,
et al,
express
the view that the court in
Palazzolo
was
wrong in concluding that the principle of double criminality requires
that the conduct for which extradition is sought, is an
offence in
both the requesting and requested countries at the time of the
commission of the offence
.
They, inter alia, comment that the interpretation of
Prof.Dugard, which they support, “
supports
the pragmatic and reciprocal rationales of modern international
extradition law
”
[15]
.
32
.
Counsel for the State further
submitted that to assert, in the circumstances of this case, a double
criminality principle based
on the time of the commission of the
alleged conduct, will create a safe haven here for offenders in other
States; that the main
objective in the Preamble of the treaty between
the USA and the RSA is to provide far more effective co-operation
between the two
States in the fight against crime, and not to promote
safe havens for offenders.
33. The State submitted that section 231 of the Constitution provides
that an international agreement becomes law in
this
country when it is enacted into law by national legislation and that
a self-executing provision of an agreement that has been
approved by
Parliament is law here, unless it is inconsistent with the
Constitution or parliamentary legislation; that s 233 enjoins
every
court when interpreting any legislation to prefer any reasonable
interpretation thereof that is consistent with international
law.
This means
that courts must adopt
an interpretation of the law and the treaty which is not obstructive
to the implementation of the treaty.
The only reasonable
interpretation of the principle of double criminality, which is
contained in the Act, in particular in the
definition of
‘extraditable offence’, is that the conduct had to
constitute an offence in both the Requesting and Requested
State at
the date of the extradition request. The State submitted that the
requirement has been met in this case
.
Discussion
34. The purpose of the enquiry before the magistrate is found in
section 10(1) of the Act. The magistrate is required to determine,
upon a consideration of the evidence adduced at the enquiry, which is
referred to in section 9 (4) (a) and (b), whether: (i) the
person is
liable to be surrendered to the foreign State concerned; and (ii) in
a case such as the present, where the person is
accused of an
offence, that there is sufficient evidence to warrant a prosecution
of the person for the offence in the foreign
State.
35.
If the magistrate is satisfied in respect of those questions, he or
she, is required to issue an order committing such a person
to prison
to await the Minister’s decision with regard to that persons
surrender.
[16]
36.
In considering whether the person brought before him is liable to be
surrendered to the foreign State, in a case where there
has been a
request for that person’s extradition in terms of a treaty and
in order to prosecute that person for an offence
alleged to have been
committed in the foreign State, the magistrate must be satisfied
that: (i) the person that has been brought
before him is the person
sought by the Requesting State; (ii) in terms of section 3 (1) of the
Act, that the person is accused
of an offence included in the treaty;
and (iii) that there is sufficient evidence to warrant a prosecution
of such a person for
such offence in the foreign State
[17]
.
37.
In order to determine whether the offence is included in the treaty
or agreement the magistrate would, of necessity, have to
consider the
treaty itself. The procedure is somewhat different if there is no
treaty in place. In such a case the magistrate would
have to be
satisfied that the person is accused of an “extraditable
offence” within the jurisdiction of the foreign
State. The
definition in section 1 of the Act of the term “extraditable
offence” would therefore be crucial
[18]
.
In either case, sufficient detail of the offence has to be placed
before the magistrate in order for the determination in question
to
be made.
38. In this case the treaty in article 1 provides that the
party States “
agree to extradite to each other, pursuant to
the provisions
” of the treaty “
persons whom the
authorities in the Requesting State have charged with or convicted of
an extraditable offence”
.
39. Article 2 of the treaty, in essence, defines an “extraditable
offence” as agreed upon. It provides:
“
1. An offence shall be an
extraditable offence if it is punishable under the laws of 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.
3. For the purposes of this Article, an offence shall be an
extraditable offence whether or not: (a) laws of the Requesting and
Requested States placed the offence within the same category of
offences or describe the offence by the same terminology; or (b)
[the] offence is one for which [the] United States Federal law
requires the showing of such matters as interstate transportation
or
use of the mails or other facilities affecting interstate of 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.
5. Extradition shall also be granted in respect of a person
convicted of but not yet sentenced, or convicted of and sentenced for
an offence as contemplated in this Article, for the purpose of
sentence, or for enforcing such sentence or the remaining portion
thereof, as the case may be.
6. Where extradition of a person is sought for an offence 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 of the Requesting State.
7.
If the request for extradition relates to more than one offence and
extradition is granted for an extraditable offence, it shall
also be
granted for any other offence specified in the request even if the
latter offence is punishable by one year’s deprivation
of
liberty or less, provided that all other requirements for extradition
are met”
.
40.
Article 23 of the treaty deals with application and provides: “
this
treaty shall apply to any offence contemplated in Article 2, whether
committed before, on, or after the date upon this treaty
enters into
force.
Nothing in this treaty
shall be deemed to require or authorize any action by the Requested
State that is contrary to the Constitution
of that State
.
”
(emphasis
added).
41. In my view the portion emphasised makes clear that the treaty
must be construed in conformity with the laws of this country
as the
Constitution requires the State to comply with this country’s
laws.
42. The treaty does not define the term “extraditable offence”,
with any more precision than the Act. With reference
to the issue
being considered here, the magistrate would have to determine the
meaning of that term, and in particular, would have
to determine
whether the offence in respect of which extradition was been sought
was to be an offence in both, the Request and
Requesting States at
the time of its alleged commission or at the the time of the enquiry,
or, at least, at the time the extradition
request was received.
43. The definitions of “extraditable offence” in section
1 of the Act and sub- article 2.1 of the treaty, express the
principle of double criminality. Their wording is similar and both
are equally,
prima facie
, “silent” in respect of
the temporal aspect. Therefore it is necessary to interpret those
provisions.
44.
In
Pinochet
(3)
the
House of Lords interpreted the definition of “extradition
crime” in the English Extradition Act. Its conclusion
in
respect of the temporal aspect, namely, that that law requires the
conduct to be criminal under UK law at the date of the commission
in
the foreign State, has been criticised
[19]
as too restrictive, or strained or even wrong, and the interpretation
of the other courts, dealing with Pinochet’s extradition,
of
that provision, notably by Lord Bingham CJ and Lord Lloyd, have been
lauded. They concluded that the correct time was the date
of the
extradition request and not the date of the commission in the foreign
State. In the definition of the term “extradition
crime”
in the UK Extradition Act, the words “would constitute”
in the phrase, “
in
corresponding circumstances, equivalent conduct would constitute and
extraterritorial offence
”
have been considered as crucial to the interpretation.
45. In
Pinochet (3)
Lord Wilkinson-Browne quotes the Chief
Justice, Lord Bingham C.J., as having stated:
”
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 section 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
section 2(1)(a) would have referred to conduct which would at
the
relevant time ‘have constituted’ an offence and section
2(3)(c) would have said ‘would have constituted’.
I
therefore reject this argument.”
[20]
46. Lord Wilkinson-Browne also quotes Lord Lloyd as having said:
”
But
I agree with the Divisional Court that this argument is bad. It
involves a misunderstanding of section 2 of the Extradition
Act 1989.
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.
”
[21]
47. Lord Wilkinson-Browne disagreed with that interpretation and went
on to interpret the definition as requiring that the offence
had to
be an offence in the United Kingdom at the time of its commission in
the foreign State.
48. I am of the view, with respect, that there is merit in the
criticism of the interpretation of the House of Lords in
Pinochet
(3).
But even if that interpretation could be accepted as
correct, it was an interpretation of the English Extradition Act,
and, more
particularly, of the definition of the term “extradition
crime” within the context of that statute, against the unique
background and history of that law and in terms of the principles of
law of the United Kingdom. It would, accordingly, be inappropriate
to
merely follow it in the context of South African law as if it applied
universally, or equally here. In my assessment there are
significant
differences between the UK definition, its context and the laws
applicable to its interpretation and the definition
in the Act, its
context and the laws applicable to its interpretation. The court in
Palazollo
referred to the
Pinochet (3)
decision as
authority for the temporal point of the principle of double
criminality as if the meaning given there was universal.
The court
did not state the basis for such reliance and did not attempt to
interpret the Act to arrive at a meaning on the temporal
aspect.
49.
I do not consider the ‘decision’ in
Palazollo
on that point to have any binding force. It was not part of the
ratio
decidendi and
it
also does not assist in deciding on the correct meaning of the
principle of double criminality as expressed in the Act and the
treaty
[22]
.
50. In my view, properly construed, Article 2.1 of the treaty, which
has to be interpreted consistently with the definition of
“extraditable offence” in the Act, does not refer to
conduct which would have constituted an offence in this country
at
the time of its commission in the foreign State, but refers to
conduct which will constitute an offence in this country at least
at
the time of the extradition request, if not at the time when the
enquiry is being conducted by the magistrate.
51.
This is a reasonable interpretation
[23]
of the definition in the Act and of the said Article and is in line
with the preferred interpretation of many of the States who
are
signatories to the European Convention on Extradition. Sub-article
2.1 op the Convention is very similar in wording to the
definition of
“extraditable offence” in our Act and to sub-article 2.1
of the treaty. It provides: “
extradition
shall be granted in respect of offences punishable under the laws of
the requesting Party and of the requested Party
by deprivation of
liberty or under a detention order for a maximum period of at least
one year or by a more severe penalty ...
”
[24]
.
52. The wording of the definition of “extraditable offence”
in section 1of the Act is clearly non-retrospective. In
my view, it
refers to conduct that must be an offence now in this country and not
at a time of its commission in the foreign State.
It is inappropriate
to give the word “punishable”, as it appears in the
definition in the Act and Article 2.1 of the
treaty, any meaning that
would suggest that the offence alleged ought to have been such in
this country at the time of the commission
in the foreign State.
Article 2 of the treaty is equally, clearly worded
non-retrospectively and the Parties thereby cannot be
said to have
intended that the conduct (i.e. constituting an offence) had to be an
offence in this country at the time of its commission
in the USA. If
this was not so, the definition of ‘extraditable offence’
in both the Act and the treaty could easily
been worded differently,
in order to, clearly and unambiguously, refer to conduct which would
have constituted an offence in this
country at the time of its
commission in the foreign State.
53.
The meaning arrived at does not result in a violation or undermining
of the principle of legality which is expressed through
the maxim
nullum
crimen nulla poena sine lege
[25]
,
because the person’s conduct would have had to be an offence in
terms of the law of the requesting State at the time of
its
commission if he is to be convicted and punished for it there
[26]
.
54.
The decision in
Bell
is distinguishable on the facts. There was no treaty in place between
Australia and South Africa. The court there did not
expressly
interpret and expressly seek to give meaning to the double
criminality principle as given expression to in section 1
of the Act
even though it came to the conclusion that offences in respect of
which prosecution had become barred by lapse of time
in this country
were not extraditable offences. The court there was of the view that
if a person cannot be prosecuted in this country,
(i.e. due to the
time bar) – “
it
must follow that in terms of our law he cannot now be punished for
that offence, and the offence is therefore not ‘punishable’
”
[27]
.
55. In the present matter, that aspect is not dealt with in the main
clauses of the treaty dealing with “extraditable offences”,
but in a separate provision, namely, Article 8, which specifically
provides that extradition shall not be granted where the prosecution
has become barred by lapse of time according to the laws in the
Requesting State.
56.
In my view, even though that matter needs not decided here, the court
in
Bell
possibly went too far. It, seemingly, and unwittingly, gave the
definition of “extraditable offence” in the Act and,
in
particular, the word “punishable” in that definition, a
meaning that is not consistent with the purpose of the Act,
and more
particularly, the purpose of the magistrate’s enquiry in terms
of the Act. The purpose is not to establish the requested
person’s
culpability, or whether he or she has any defence to the criminal
charges in the foreign State
[28]
,
but whether the conduct constitutes an offence in this country, at
least at the time of the request for extradition and whether
the
person, upon conviction, would be liable to a penalty as prescribed
in the definition. “A request for extradition is
not a request
for transfer of jurisdiction, nor a request for a trial but a request
to assist the appropriate jurisdiction (that
of Requesting state) in
rendering its justice”.
[29]
57. In conclusion on this point, the magistrate, in my view, was
correct in finding that even though the offences for which
extradition
was sought were not offences in South Africa, because of
the date on which the relevant provisions of FICA came into
operation,
at the time of their commission in the USA, they were,
nevertheless, extraditable because they were offences in South Africa
at
least at the time of the request for extradition.
CERTI FICATE’S COMPLIANCE
58. Turning to the next issue, namely, whether the tendered
certificate complied with section 10 (2) of the Act. I am of the view
that there is no
merit in the
appellant’s argument on this issue and the sub-issue, namely,
that the offences had not been described sufficiently
in the
certificate and that this did not meet the requirements of the Act.
59. It was submitted on behalf of the appellant that the certificate
was “ambiguous, ambivalent and wholly, unnecessarily
vague”;
that the affidavit of Mr Axelrod, which was referred to earlier in
this judgment, purports to speak of structuring
of bank accounts, but
the actual request, as reflected in the certificate, does not
unambiguously and unequivocally request extradition
for that purpose,
because of how it reads. It reads: “
The United States
requests the extradition of Usman Patel from South Africa for
prosecution of financial crimes associated with
banking regulations,
e.g., structuring of bank deposits in violation of law
”.
60. According to this argument, the extradition is not sought for the
crimes described in the affidavit of Mr Axelrod since only
an example
of the crimes for which his extradition is sought is mentioned in the
certificate. It was further submitted that the
description was so
vague that it provided no certainty with regard to the offences to
which extradition was being sought and undermined
the principle of
speciality which requires that the extradited person may not be tried
for an offence other than that for which
he was extradited, unless
the Requested
State consented to such
prosecution.
60. Developing this point, it was further submitted that before the
magistrate could be satisfied in terms of section 10(1) of
the Act
that the appellant was liable to be surrendered to the USA, the
magistrate had to be satisfied that the reason for which
the
appellant’s extradition was being sought was to prosecute him
for an extraditable offence(s). It was submitted that the
certificate
was too vague to satisfy the magistrate and merely giving an example
of the offence for which he was to be tried, was
inadequate.
62. It was further submitted on behalf of the appellant, with
reference to the certificate, that it did not comply with the
prescripts
of section 10(2) of the Act, because it used different
wording to that found in the section. Instead of stating that the
evidence
was sufficient “to warrant” the prosecution of
the appellant, it stated that the evidence was sufficient “to
justify” his prosecution. The submission is that failure to use
the word “warrant” in the certificate was crucial.
It is
the appellant’s contention that there is “a significant
difference between the meaning of the word ‘warrant’
and
the word ‘justify’”.
63. On this point it was submitted by counsel that a debate on the
difference was not that relevant, but what was important was
that
section 10 (2) of the Act required the use of the word “warrant”
and the certificate did not use that word. Accordingly,
so it was
submitted on behalf of the appellant, the certificate did not comply
with section 10 (2) of the Act and could not have
been relied upon by
the magistrate as conclusive proof that there is sufficient evidence
to warrant the prosecution of the appellant.
64. It was further submitted that there was a deliberate avoidance on
the part of Mr Axelrod to use the word “warrant”,
because
he could not “guarantee” that there was sufficient
evidence for the prosecution. According to this argument
section 10
(2) effectively required a guarantee by the foreign State that there
was sufficient evidence for the prosecution.
65.
In support of the argument that the certificate had to use the exact
wording of section 10 (2) in order to be valid, counsel
for the
appellant referred to examples of certifications found in sections
212 (4), 212 (5) and various subsections of section
212 of the
Criminal Procedure Act
[30]
as well as to decisions where it was held that in order for such
certification to be admissible it must contain all the necessary
allegations
[31]
.
66.
It was submitted on behalf of the appellant on the point that in our
law where proof is permitted by means of an affidavit or
certificate,
such document would only be admissible if it complies with “the
required wording of the empowering section”
[32]
and that Mr Axelrod’s affidavit was not admissible as
conclusive proof because it did not follow the wording of section
10(2) of the Act.
67.The
State’s counsel submitted that section 10(2) which,
inter
alia
,
provides that the magistrate could accept a certificate as conclusive
proof of the fact that there is sufficient evidence at the
disposal
of the appropriate authority in charge of the prosecution in the
foreign State to warrant the prosecution of the requested
person for
the offences in the foreign State, was held to be constitutionally
valid in
Geuking
[33]
;
that
there was nothing sinister in the use of the word “justify”,
instead of “warrant”; that it was merely
a matter of
semantics and that the Act did not strictly require the word
“warrant” to be used. It was enough if the
certificate
conveyed the same meaning as is intended in section 10 (2) and the
certificate in question was valid.
68.
With regard to the description of the offences in the certificate, it
was submitted for the State that the offences were adequately
described in the certificate. The certificate makes clear that there
is more than one offence and that they all pertain to banking,
in
particular, the structuring of bank deposits in violation of the law.
69.
The State further submitted that even if the certificate was found
not to be in compliance with the Act, there was enough other
evidence
placed before the magistrate that there was sufficient evidence
available to the Prosecuting Authorities in the USA to
warrant the
prosecution of the appellant for the offences he is alleged to have
committed in that country.
70.
In conclusion, the State counsel submitted that the magistrate
correctly found that the appellant was liable to be surrendered
to
the USA and that there was sufficient evidence available to the USA
authorities to warrant his prosecution in that country for
the
offences described in the request for his extradition, including the
indictment that was also provided. Further, that the magistrate,
in
the result, correctly issued an order committing the appellant to
await the Minister’s decision, as contemplated in section
10(1)
of the Act.
71.
In my view there is merit in the submissions made on behalf of the
State. The certificate is not invalid because it used the
word
“justify”, instead of “warrant”. Properly
construed within its context the word “warrant”
could
reasonably be interpreted to mean “justify”, or
“justifies”.
72.
The foreign State is not obliged in terms of the Act to furnish a
certificate as contemplated. It is merely a mechanism to facilitate
proof. There is nothing else in the Act which requires the foreign
State to guarantee the prosecution of the requested person.
In those
circumstances the contention, that the foreign State must ‘guarantee’
the prosecution in the certificate,
rings hollow. In the absence of a
certificate the magistrate must, nevertheless, satisfy himself or
herself that there is sufficient
evidence to “warrant” a
prosecution in the foreign State. Clearly the magistrate is not
required to find that there
is sufficient evidence to “guarantee”
the prosecution, but merely that there is sufficient evidence
available to “warrant”,
in the sense of “justifying”,
the prosecution. The certificate’s wording is in compliance
with the Act.
73.
The allegation that Mr Axelrod deliberately avoided using the word
“warrant” because he could not give a “guarantee”,
is not supported by any evidence, is purely speculative and based on
a wrong interpretation of section 10(2) of the Act.
74.
The cases which the appellant’s counsel referred to in respect
of the wording of certificates are distinguishable. In
any event,
there is enough evidence,
aliunde
the certificate, that there
is sufficient evidence available to the prosecuting authorities in
the USA to justify the prosecution
of the appellant in respect of the
offences for which his extradition is being sought.
75.
In my view the certificate adequately described the offences for
which the appellant’s extradition is being sought. Beside
the
certificate, there is ample other evidence of the nature of the
actual offences he is to be prosecuted for, including the indictment
that was included in the request and affidavits by Mr Axelrod, Mr
Scott Lee and various exhibits.
76.
In conclusion, the magistrate’s findings regarding the
appellant’s extradition are unassailable and the appeal falls
to be dismissed.
77.
In the result;
The
appeal is dismissed and the order of the magistrate, made in terms of
section 10 (1) of the Extradition Act, No. 67 of 1962,
is confirmed.
P
COPPIN
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
I AGREE
T D
VILAKAZI
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
ON BEHALF OF THE
APPELLANT : MR HELLENS SC
INSTRUCTED BY : DAVID H BOTHA, DU PLESSIS &
KRUGER INC.
ON BEHALF OF THE STATE : D BARNARD
INSTRUCTED BY : OFFICE OF THE DIRECTOR OF
PUBLIC PROSECUTIONS
DATE IF HEARING : 30 APRIL 2015
DATE OF
JUDGEMENT : 18 AUGUST 2015
[1]
Section
10 (1) provides
:
“
(1)
If upon consideration of the evidence adduced at the enquiry
referred to in section9 (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]
The
section provides: “
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.”
[3]
GNR
7100 of 29 June 2009.
[4]
The
section provides
:
“
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.
”
[5]
No.
7100 of 29 June 2001
[6]
See Shearer “Extradition in International Law” (1971), p
137.
[7]
Section 28 of the Financial Intelligence Centre Act,, No. 38 of 2001
(“FICA”) provides: “
An
accountable institution and a reporting institution must, within the
prescribed period, report to the Centre the prescribed
particulars
concerning a transaction concluded with a client if in terms of the
transaction an amount of cash in excess of the
prescribed amount-(a)
is paid by the accountable institution or reporting institution to
the client , or to a person acting on
behalf of the client, or to a
person on whose behalf the client is acting; or (b) is received by
the accountable institution
or reporting institution from the
client, or from a person on whose behalf the client is acting.”
[8]
Section 64 of FICA provides: “
Any
person who conducts, or causes to be conducted, two or more
transactions with the purpose, in whole or in part, of avoiding
giving rise to a reporting duty under this Act, is guilty of an
offence
.”
[9]
1999 2
WLR 824
(H).
[10]
[
1997]
2 ALLSA 692
(EC).
[11]
An unreported decision of the Western Cape High Court; Case no.
4731/2010; 14 June 2010.
[12]
R v
Bow St Magistrate, Ex Parte Pinochet (No 3) (
supra).
[13]
See John
Dugard
“
International
Law- A South African Perspective”
4
ed (2011) 220
.
[14]
See Du Toit,
et al
“
Commentary on
the Criminal Procedure Act
”
App B20-App B20A (Service 53, 2014).
[15]
Ibid.
[16]
The
magistrate must at the same time inform that person of his right to
appeal such order.
[17]
The
last requirement will be dealt with in the discussion of the second
main issue pertaining to the certificate contemplated
in section 10
(2) of the Act.
[18]
Compare
Geuking
v. President of the Republic of South Africa and Others
2003 (1) SACR 404
(CC) especially para [39].
[19]
See
,
inter alia
,
J Dugard “
International
Law: A South African Perspective
”
Fourth Edition p.220; John Dugard “
Dealing
with Crimes of a Past Regime: Is amnesty still an option?
”(1999)
12 LJIL 1008-1009; Max Du Plessis “
The
Pinochet cases and South African Extradition Law”
(2000)
16 SAJHR 680
; Andreas O’Shea “
Pinochet
and Beyond: The International Implications of Amnesty
”
(2000) 16 SAJHR 653-656
; Colin Warbrick “
Extradition
Law Aspects of Pinochet 3
”
(1999)
48 ICLQ 958
; Du Toit et al “
Commentary
on the Criminal Procedure Act
”
(supra) .
[20]
See:
Pinochet
(3)
(supra) at 44.
[21]
Ibid.
[22]
See:
the criticism of the
Palazollo
decision in Du Toit
et
al
(
supra
).
[23]
In
terms of section 233 of the Constitution: ”
When
interpreting any legislation, every court must prefer any reasonable
interpretation of the legislation that is consistent
with
international law over any alternative interpretation that is
inconsistent with international law”
.
[24]
Council
of Europe Secretarial Memorandum prepared by the Directorate General
of Human Rights and Rule of Law, in particular the
“
Note
on dual criminality, in concreto or in abstracto” b
y
the Committee of Experts on the Operation of European Conventions on
Co-operation in Criminal Matters ( Strasbourg; 11 May 2012);
http://www.coe.int/tcj/
. Prof
J Dugard also points out that the normal practice is to require the
extraditable crime to be a crime in the requested state
at the time
of the extradition request and that it is supported by the
Netherlands. See John Dugard “
Dealing
With Crimes of a Past Regime. Is Amnesty still an Option
?”
(1999) 12 LJIL at 1008.
[25]
Coined
by J P Anselm von Feuerbach and literally translated as “no
crime, no punishment without law”- see: J Burchell
and J
Milton “
Principles
of Criminal Law
”
(1991) Juta p55.
[26]
See:
Colin Warbrick “
Extradition
Law Aspects of Pinochet 3
”
(1999) 48 ICLQ at 964.
[27]
See:
S
v. Bell
(supra) at 699 f-g.
[28]
See
Geuking
v. President of the RSA and Others
(supra).
[29]
This
is the argument of the European countries who are parties to the the
European Convention on Extradition, who adopt an “
in
abstracto
”
interpretation of Article 2 of the Convention. See: The Note by the
Committee of Experts referred to above.
[30]
The
Criminal Procedure Act No 51 of 1977
.
[31]
In
particular
R
v. Rantsane
1979 (4) SA 864
(O);
S
v. Hlongwa
2002 (2) SACR 37
(T);
S
v. Mavhungu
1988 (3) SA 67
(V);
S
v. Dlamini
2004 (1) SACR 178
(NC) and
S
v. Kwezi
2007 (2) SACR 61
(E) par [5].
[32]
Relying
on the decision in
S
v. Kwezi
(supra).
[33]
Geuking
v President of the RSA
(supra).