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[2019] ZAGPJHC 396
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Chang v Minister of Justice and Correctional Services and Others; Forum de Monitoria do Orcamento v Chang and Others (22157/2019; 24217/2019) [2019] ZAGPJHC 396; [2020] 1 All SA 747 (GJ); 2020 (2) SACR 70 (GJ) (1 November 2019)

REPUBLIC
OF SOUTH AFRICA
IN
THE
HIGH
COURT
OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
Number
:
22157/2019
In
the matter between:
MANUEL
CHANG
Applicant
And
MINISTER
OF JUSTICE AND
CORRECTIONAL
SERVICESS
Respondent
FORUM
DE
MONITORIA
First
Intervening Party
DO
ORÇAMENTO
THE
REPUBLIC OF
MOZAMBIQUE
Second
Intervening
Party
HELEN
SUZMAN
FOUNDATION
Amicus
Curiae
Case
Number:
24217/2019
In
the matter between
FORUM
DE
MONITORIA
Applicant
DO
ORÇAMENTO
MANUEL
CHANG
First
Respondent
MINISTER
OF JUSTICE
AND
Second
Respondent
CORRECTIONAL
SERVICES
DIRECTOR
OF PUBLIC
PROSECUTIONS,
Third
Respondent
GAUTENG
LOCAL DIVISION,
JOHANNESBURG
ADDITIONAL
MAGISTRATE,
Fourth
Respondent
EKURHULENI
NORTH :KEMPTONPARK
JUDGMENT
FISHER
J, (LAMONT J AND MOLAHLEHI J CONCURRING):
INTRODUCTION
[1]
This is a tale of two Treaties. On the
one hand the SADC Protocol on Extradition ("the Protocol")
and on
the
other
the Extradition Treaty between South Africa and the United States of
America
("the US Treaty")
.
[2]
The treaties are similar. Both allow for
the surrender and extradition of persons accused of crimes, between
their Member states.
Their operation and the fact that Mr Chang has
been
implicated
in
crimes perpetrated on an international scale, has
led
to an unusual situation: competing
claims for Mr Chang
'
s
extradition from South Africa - one from the USA and the other from
Mozambique.
[3]
The
former
Minister
[1]
of Justice, Mr Michael Masutha in dealing with the competing
requests
opted
to extradite Mr Chang to Mozambique, South Africa's co­ member
in
the
Protocol, thus, by implication, rejecting the request of the
USA.
[4]
The issues before this Court involve a
judicial review of these decisions. The applications relating to
these
reviews
have been combined for one special hearing before
this
Full Court pursuant to an
intensive
judicial case management process
.
This has allowed for the applications to
be dealt with on an expeditious basis, given that there
is
urgency in the matters, which is not
least because Mr Chang has been incarcerated at Modderbee
Correctional Facility since his arrest
on 29 December 2018
.
[5]
Mr Chang was the Minister of Finance in
Mozambique from 2005 to 2015. After his term in Cabinet ended, he
became a member of the
National Parliament. The parties, save Mr
Chang, agree that investigations conducted internationally have
revealed that Mr Chang
and his co-conspirators took part in schemes
of securities fraud during approximately 2013 to 2015. The schemes
involved large
loans
by
banks, companies, and persons based in the USA, France, Switzerland,
Holland, Britain, and the United Arab Emirates (UAE) to
companies
under the control of
the
Mozambican
Government. The loans were meant to fund maritime projects that would
benefit Mozambique but
,
it
is alleged that funds were diverted to government officials in
Mozambique in the form of kickbacks and bribes. Amounts involved
in
the schemes are said to be in excess of US$2 Billion (approximately
R30 Billion).
[6]
This corruption has had a profoundly
negative effect on Mozambique and its people. For one thing, there
has been a sharp reduction
in essential donor funding
in
the wake of the scandal. For another,
the loan repayments to which Mozambique
is
bound are onerous
.
[7]
The
imbroglio began with the arrest of Mr Chang in South Africa in terms
of the US Treaty. It had come to the attention of the US
authorities
that Mr Chang would be travelling via South Africa to the UAE on 29
December 2018. He was indicted in
the
Eastern
District Court of New York on
19
December
2018 and on 21 December 2018 the USA requested South Africa to arrest
him
in
terms
of
the US Treaty. On 27 December 2018 the Pretoria Magistrate's court
authorised the arrest of Mr Chang in accordance with the Extradition

Act
[2]
(
"
the
Acf')
.
He
was then intercepted and arrested at O R
Tambo
International
Airport where he was bound for a flight
to
Dubai.
[8]
Mozambique is up in arms. It protests
that it was unaware of the US investigations and the resultant
indictment of Mr Chang in New
York State until Mr Chang's arrest in
South Africa was made public in December 2018
.
It says it had been led to believe that
Mr Chang would be tried for his crimes in Mozambique with the
cooperation and assistance
of the USA when, all the while
,
the USA was covertly involved in its own
investigations
.
[9]
It is claimed that Mozambique has not
been serious o
r
exac
t
ing
in its attempts to bring Mr Chang to book in Mozambique
.
Understandably
,
Mozambique 1s embarrassed by these
claims
.
It
has sought some vindication
i
n
its attempts a
t
extradition
and now in these proceedings. It says that the appropriate place for
Mr Chang to be brought to justice is Mozambique.
It says that
i
t
is important to Mozambique to prosecute this case successfully to
demonstrate its commitmen
,
t
competency
,
and
capacity in fighting corruption
.
It
suggests that its credibility is at stake in relation to various
internatio
n
al
conventions to combat criminality to wh
i
ch
it is signatory and which include the UN Convention against
Corruption
,
UN
Convention against Transnational Organized Crime
,
SADC Protocol against Corruption
,
AU Convention on Preventing and
Combating Corruption
.
[10]
From the perspective of the USA
,
it appears that a majority of the
investors who were affected by the scheme were from the USA. The USA
thus seeks that Mr Chang
and others involved in the schemes be
prosecuted there
.
It
is not in dispute that Mozambique has been investigating this case
since 2015 and that Mr Chang has remained at large, even travelling

freely beyond the borders of Mozambique
.
The USA has indicted that it is ready to
prosecute Mr Chang. Mozambique concedes that it is still not ready to
prosecute
.
[11]
As will be dealt with below, Mr Chang's
immunity from prosecution in Mozambique qua Member of Parliament (MP)
in Mozambique is central
to this failure to p
r
osecute
him in Mozambique
.
It
is a
l
so
central to the legality of the former Minister
'
s
impugned decisions in this matter and thus of central importance to
this case.
[12]
Article
4 (e)
[3]
of the Protocol provides that extradition shall be refused
"
if
the person whose extradition is requested has, under the law of
either State Party, become immune from prosecution or punishment
for
any reason, including lapse of time or amnesty;"
PROCEDURAL
HISTORY
[13]
After his arrest and on 29 January 2019,
the USA submitted a request to South Africa for the extradition of Mr
Chang. Mozambique,
a few days later (on 01 February 2019) submitted
its own warrant and request for extradition.
[14]
In
terms of section 9 of the Act Mr Chang was required to be brought as
soon possible after his arrest before a magistrate in whose
area of
jurisdiction he had been
arrested,
whereupon the Magistrate was obliged to hold an inquiry with a view
to the surrender of such person to the foreign State
concerned.
[4]
[15]
Inquiries were thus conducted in the
Kempton Park Magistrate's Court in terms of s 10 of the Act in
respect of both requests.
[16]
On
8 April 2019, the Magistrate committed Mr Chang under section 10(1)
of the Act to imprisonment in respect of both requests to
await the
decision of the Minister under section 11
[5]
as to whether and to whom Mr Chang should be surrendered in respect
each of the requests.
[17]
The Minister thus regarded himself as
empowered to choose which
,
if
either of the extradition requests he would accede to
.
[18]
In the normal course in relation to the
decision to be taken in respect of a request for extradition
,
the Minister is advised by the staff of
the International Relations Department. On 16 May 2019 the Principal
State Law Advisor on
International Relations, Advocate Herman van
Heerden submitted a memorandum to the then Minister in relation to
the competing requests
("the Memorandum")
.
[19]
Part of the compiling of the Memorandum
involved Mr van Heerden checking whether the requests were compliant
with the requirements
of South African law. As part of this process
and on 06 February 2019, Mr Van Heerden addressed a letter to the
Attorney General
of Mozambique, Ms Beatriz Buchili in relation to Mr
Chang's immunity and
its
source
as he understood it. He pointedly directed the following inquiry
to
the Attorney General:
"Article
211 of the Constitution of
Mozambique 2004,
as
amended,
provides for the immunity from prosecution of members of government
without the permission of the President of Mozambique
.
In this regard, it is not
mentioned in the request for extradition whether the President has in
fact lifted the immunity of Mr Chang,
and we require clarity on
this.
.
."
[20]
Thus, it was clear that Mr van Heerden
was aware that there was a relationship between Mr Chang's position
in government and his
possible immunity and that he required
clarification as to whether Mr Chang
indeed
had such immunity.
[21]
Ms Buchili responded to the request for
clarification by explaining that Article 211 applied only to serving
Government Members
and thus did not apply to Mr Chang. She stated
that his position was now that of MP and explained that, as such, the
"consent
for his detention" had to be given by the
Mozambican National Parliament, She then stated that attached to the
Mozambican
extradition request "..
.is
the document issued by the National Parliament giving consent for the
detention of Manuel Chang".
[22]
Proper
reference to this document shows that it merely records that the
Standing Committee of National Parliament
"Approves
the enforcement of maximum coercion measures against Mr Chang".
It
pertinently does not provide for the lifting of immunity from
prosecution and, for that matter, also does not expressly consent
to
Mr Chang's arrest
[6]
.
[23]
Quite what "maximum coercion
measures" would entail in light of Mr Chang
'
s
immunity is unclear. Presumably, this would mean the maximum that can
be done subject to the Mozambican law
.
[24]
What Ms Buchili failed to explain to Mr
van Heerden was
t
he
procedure for the lifting of immunity and that Mr Chang enjoyed
immunity until it was lifted in Mozambique. Her somewhat oblique

responses on the matter of Mr Chang's immunity led Mr van Heerden to
the mistaken impression that Mr Chang's immunity from prosecution
in
Mozamb
i
que
had been lifted. And thus this is what Mr van Heerden conveyed to the
former Minister in the Memorandum. The Memorandum conta
i
ned
the following statement as to Mr Chang's immunity:
"As
a
Member of Parliament
,
consent for his detention must be
gi
v
en
by the National Parliament of Mozambique in terms of Article 174 of
the Constitution of Mozam
b
ique
a
s
well
as
No
.
1
of Article 13 of th
e
St
a
tute
of Memb
e
rs
o
f
th
e
National
P
a
rl
ia
m
e
nt.
Th
i
s
has been done,
a
nd
Mr Chang n
o
l
o
nger
enjoy
s
immuni
t
y
f
ro
m
p
ros
e
c
uti
o
n
by the Mo
z
ambi
c
an
authorities
.
"
(emphasis added)
.
Furthermore
Article 4 of the protocol was duly referenced in the Memorandum and
the Minister was assured (incorrectly) that its
provisions were met.
[25]
The Memorandum also served to inform the
Minister of the various submissions made by Mozambique
,
the USA, Mr Chang
,
and civil society
.
It noted that civil society in
Mozambique was frustrated by the apparent lack of progress in the
investigations in Mozambique
.
[26]
Mr van Heerden ultimately made the
recommendation to the Minister that Mr Chang be extradited to the USA
rather than Mozambique
.
This
recommendation was based, in large part, on the state of readiness of
the respective prosecutions - the USA being ready to
proceed with the
prosecution and Mozambique being in a state of unreadiness to
prosecute
.
Importantly,
the recommendation did not engage at all with the question of
immunity as it proceeded from the assumption that Mr
Chang no longer
e
njoyed
immunity
.
[27]
The former Minister did not follow this
recommendation. On 21 May 2019 he took the decision under section
11(a) of the Act to surrender
Mr Chang to Mozambique rather than the
USA.
[28]
The decision of the former Minister and
the basis therefor is penned
in
manuscript by him at the end of the
Memorandum, reflecting that the Minister has considered its contents.
It reads as follows:
"Having
considered the submission by the
department regarding this matter following the decision of the
Kempton Park Magistrate court regarding
the extraditabily of Mr Chang
to
both
the USA and the Republic of Mozambique and having considered the
following
:
That
the accused is a citizen of Mozambique
;
That the alleged offence was
committed whilst he was
a
Minister
of State; The onerous debt for Mozambique as a result of
the
alleged fraud; The submission
made by Mr Chang to be extradited to his home country; The interests
of the States concerned; The
request from the USA. I have noted that
the request was submitted
a
few
weeks prior to the Mozambican's, however having considered the matter
in its full context, taking into account the criteria
contained in
both the treaty and protocol
,
I
am
satisfied
that the interest of justice will be best served by acceding to the
Mozambican request for extradition and thus it
is
my decision that the accused Mr
Chang be extradited to stand trial for his alleged offences in
Mozambique".
[29]
The
true legal position as to the law of Mozambique
relating
to
the immunity of MP's is to be found in Article 174 of the Mozambican
Constitution
[7]
and Articles
13.1
and
17 of Law No 31/2014. Article 13
.
1
provides that MPs shall not be arrested or detained, unless caught in
the act
("flagrante
delicto")
and
that they shall not face trial without the consent of Parliament.
[8]
Article 17 deals with the lifting of Immunities by
National
Parliament and provides that this can only be done in Parliament in
plenary session and by secret ballot.
[9]
[30]
The Mozambican Attorney General, in the
main affidavit delivered on behalf of Mozambique, explains
the
law of Mozambique on the operation and
lifting of immunities thus:
"The
law
of Mozambique provides for the lifting of immunity in order to
prosecute an offending Member of Parliament (hereafter "MP'')
.
Before
an MP can be arrested or detained, the National Parliament must first
authorise the arrest or detention. This authorisation
is granted in
terms of Article 13 of Law No.31/2014
.
The
MP will then appear before
a
judge
of the Supreme Court
,
who
will determine
if
the
charges are not politically motivated or malicious
.
If
the Judge
is
satisfied
that the MP has
a
case
to answer, then the judge will request that immunity should be
lifted. Article 16 of Law No.31 provides for the procedure to
lift
the immunity. The
immunity
will
then
be
lifted
in
terms
of Article 13 and 17 of Law No,31/2014. Therefore, before immunity
can be lifted, the MP must appear in person at the Supreme
Court
inquiry to make his or her representations. It is not possible to
lift immunity without this inquiry. The inquiry cannot
take place in
the absence of the defendant.
"
[10]
[31]
The statement in the Memorandum to the
effect that Mr Chang was not subject to
immunity
from prosecution because of the consent
o
f
Parliament
was not correct. Parliament had given no such consent and neither was
it able to
do
so
in Mr Chang's absence.
[32]
The current Minister contends that Mr
van Heerden was deliberately misled. Ms Buchili denies this
.
She seeks to exp
l
ain
that this was the
first
extradition
request
made
by her office involving a Member of Parliament
,
implying
that there was a lack of experience at
play. She states that she believed that South Africa was properly
apprised of the immunity
and its nature and extent. She puts any
misunderstanding in relation to Mr Chang's immunity down to the
different legal systems
and different languages at play.
[33]
Whatever the reason for the
m
i
sinformation,
Ms Buchili concedes that there was a failure to disclose that Mr
Chang had immunity from arrest and prosecution in
Mozambique
.
[34]
Mr Chang has
,
throughout all of these proceedings
,
resisted his extradition to the USA
whist actively seeking his extradition to Mozambique. He has
recently, and after the fact of
the impugned decisions gone as far as
resigning from his posi
t
ion
as Member of the National Government in order to relinquish the
immunity
.
This
he did on 29 July 2019. He thus argues, as does Mozambique
,
that to the e
x
tent
that he enjoyed immunity at the time of the impugned decisions
,
he
i
s
no longer subjec
t
to
such immunity as he is no longer an MP.
[35]
This has no impact on the Minister
'
s
decisions
,
as
they must be evaluated on the basis of the facts as they were at the
date on which the decision was taken.
[36]
Mr Chang has resigned as MP with the
purpose o
f
relinquishing
his immunity in Mozambique. He says that this is because wants to
answer for the charges against him in his home country
.
The more cynical view
,
as suggested by the civil society
litigants in this matter, is that he has the impression tha
t
in Mozambique he may be given a measure
of protection due to cronyism or a largesse which harks back to his
former positions in
government.
RELIEF
SOUGHT
[37]
Mr Chang thus seeks an order directing the current Minister to
surrender him to the Government of Mozambique
,
alternatively
,
that he be released from custody
.
[38]
The current Minister has not only
opposed the relief sought by Mr Chang but has also counter - applied
for to set aside the decision
of his predecessor in Office
.
[39]
The Director of Public Prosecutions
(
"
OPP")
makes submissions to aid us to decide whether or not the decision of
the Kempton Park Magistrate shou
l
d
be interfered with
.
[40]
The Forum de Monitoria do Orcamento
("FMO") is a coalition of various Mozambican c
i
vil
society organisations
.
It
launched its own application to review the former Minister's decision
to extradite Mr Chang to Mozambique
.
By
this stage all parties were dealing with the matters in a
consolidated manner due to
t
he
management of the matters with a view to them being heard together
.
[41]
The Helen Suzman Foundation (
"
HSF")
was admitted as amicus to be heard from a South African and general
perspective as to civil rights involved in the matter.
ISSUES
TO BE DECIDED
[42]
We are called on to decide whether the
decision of the Magistrate in the section 10 proceedings in the
Mozambican matter is assailable;
whether the decision of the former
Minister should be reviewed and set aside
;
and, if so
,
what the remedy shou
l
d
be.
[43]
The immunity of Mr Chang is central to
the impugned determinations of the Magistrate and the Minister
.
[44]
Mr Chang was treated by the Magistrate
as "a
person accused
of.
.
."
the offences enumerated in the Mozambican warrant, as contemplated in
the Act for the purposes of the process under section
10. It is
argued in this regard by FMO that the immunity means that Mr Chang
cannot be subject to prosecution and that it follows
that he cannot
be a person accused for the purposes of the Act.
[45]
It is argued on behalf of the current
Minister, FMO, FUL, and the OPP that Article 4(e) of the Protocol
creates a prohibition on
the extradition of Mr Chang to Mozambique in
light of his immunity under Mozambican Law. It is further argued by
these parties
that, if the former Minister did not know of such
immunity or if he did not consider it for other reasons, his decision
falls to
be set aside on the basis that it is irrational.
[46]
Mr Chang makes a different submission as
to the meaning and effect of these immunity provisions in terms of
the Mozambican law and
the manner in which they affect the
application of Article 4(e) of the Protocol. He argues that, in terms
of Mozambican law, the
immunity does not subsist but is only
constituted once the National Parliament is called on to consider
charges against an MP.
He argues also that, given the fact that the
immunity can be lifted, it is not of the nature of immunity
contemplated in Article
4(e) and thus is not hit by the prohibition
therein.
[47]
The
reviews of the former Minister's decision are legality reviews and
are not brought under the Promotion of Administrative Justice
Act 3
of 2000 ("PAJA”)
[11]
.
This is not in dispute.
[48]
With all this
in
mind,
I
turn first to the challenge against the
Magistrate's decision under the Act.
The
Review of the Magistrates Section 10 Decisions
[49]
Section
3
[12]
of the Act deals with when a person is extraditable. It provides that
such a person must be “
accused
of”
an
extraditable offence.
[50]
It
is
not
disputed that Mr Chang became a defendant in terms of Mozambique's
domestic processes in that there were charges formulated
against him
along the same lines as those in the US indictment. He was, however
,
not yet indicted in Mozambique. The
purpose of the Mozambican extradition request is stated to be to
"extradite the defendant Manuel
Chang to Mozambique
,
for
the purposes of criminal, administrative and civil liability''.
[51]
FMO argues that while Mr Chang was
immune from prosecution he could, axiomatically, not be
"a
person accused”
.
It
argues
that it follows from this that the Magistrate could not entertain the
inquiry as it is required as a jurisdictional fact
for the inquiry
that Mr Chang be a person accused of extraditable offences.
[52]
The OPP counters that a person can be
both
immune
from
prosecution and a person accused for purposes of the Act.
[53]
The
judgment of Lord Steyn in the House of Lords decision of In re:
lsmail
[13]
is instructive as to the proper approach to be adopted by a court
determining whether a person is accused for the purposes of
extradition. The question posed on the facts of
Ismail
was
similar to the issue we deal with here: was Mr Ismail liable to be
extradited under the UK Extradition Act as a person
"accused'
of
extraditable offences in the Federal Republic of Germany? Mr Ismail
contended that he was not an
"accused"
person
because no formal criminal charge had yet been made against him in
Germany
.
[54]
Lord
Steyn held that it is a question of fact in each case whether the
person passes the threshold test of being an
"accused'
person
.
He
stated as follows as to the need to interpret extradition legislation
and treaties in context
[14]
:
"Next
there is the reality that one is
concerned with the contextual meaning of
"accused"
in a statute intended to serve the
purpose of bringing to justice those accused of serious crimes. There
is a transnational interest
in the achievement of this
aim.
Extradition treaties, and extradition statutes, ought
,
therefore, to be accorded a broad and
generous construction so far as the texts permit it in order to
facilitate extradition. "
He
went further to state
:
"All one
can say with
c
onfidence
is that a purposive interpretation of "accused" ought to be
adopted in order to accommodate the differences
between legal
systems
.
In
other
w
ords
,
it is necessary for our courts to
adopt a cosmopolitan approach to the question whether as a matter of
substance rather than fo
r
m
the requirement of there being an "accused"
.
[55]
This approach commends itself in this
case
.
I am
thus satisfied that Mr Chang's immunity from prosecution did not
prevent him from being accused of the crimes set out
i
n
the warrant. The accusation and prosecution stand apart from one
another. Indeed, in terms of the Mozambican law on this point,
the
very procedures which can bring about a lifting of his immunity
pre-suppose that he is accused of the offences for which he
will
ultimately be charged and prosecuted if the immunity is lifted.
[56]
It was argued by FMO that the Magistrate
should have made inquiries related to establishing whether Mr Chang
was immune from prosecution
.
On
a simple reading of section 10, the magis
t
rate
'
s duties
are confined to making certain preparatory findings
,
while the Minister makes substantive and
political decisions under s 11
.
[57]
Section
10(1)
[15]
of the Extradition Act explains that a Magistrate, on the
consideration of the evidence before her or him
,
must
be satisfied that two conditions are fulfilled before a committal
order can be made: first, the person must be liable to
be
surrendered to the foreign State concerned
;
second,
in the case where such person
is
accused
of an offence, there must be sufficient evidence to warrant a
prosecution for the offence in the foreign State.
[58]
The section 10 decision of the
Magistrate is only to commit or discharge. If the person is
committed, then it is the Minister (under
the executive phase under
section 11) who decides
if
the
person should be surrendered in extradition.
[59]
The
Magistrate is not a trier of fact. His function is to determine
if
the
person is accused by the requesting state of the crimes for which his
extradition is sought and satisfying himself that there
is sufficient
evidence to warrant a prosecution in the foreign State. This second
inquiry does not involve a determination as to
the veracity of the
facts. The Magistrate in terms of section 10(2)
[16]
merely accepts 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, stating that it has sufficient evidence at its disposal to
warrant the prosecution of the person for the crimes of which
he or
she is accused.
[60]
The determination of whether a person
has immunity and how this should affect the decision as to whether he
should be extradited
or not is clearly within the realm of the
substantive and the political. The very debate which has been had
here as to the nature
and effect of the immunity of Mr Chang on the
Minister's decision shows that
it
is
beyond the province of the Magistrate and his ken
.
[61]
In
Geuking
v President of the Republic of South Africa and Others
[17]
Goldstone
J writing for a unanimous Court, explained
the
position
thus:
"It is
not inappropriate or unfair for the legislature to relieve the
magistrate of the invidious task of deciding this narrow
issue
unrelated to South African law
.
"
As
already mentioned, it is a question in respect of which South African
lawyers and judicial officers will usually have no knowledge
or
expertise. The certificate from the appropriate authority in the
foreign state to the effect that the conduct in question warrants

prosecution in that state is sufficient for the purpose of
extradition. Its conclusiveness is binding on the Magistrate only in

relation to his consideration of the question whether the person
concerned is extraditable. If the person concerned is extradited
the
foreign court will have to determine the issue covered by the
certificate. Furthermore, in the exercise of his discretion under

section 11 of the Act the Minister might well be obliged to consider
an attack made in good faith against the conclusion of the
foreign
authority contained in the certificate.
"
[18]
[62]
I thus
find
that
the Magistrate conducted the inquiry
in
accordance with the Act. His decision
does not fall to be set aside by this Court.
[63]
It was contended on behalf of Mr Chang that the FMO had no standing
to challenge the decision made in the section 10 inquiry
by the
Magistrate as it was not a party to the proceedings in the
Magistrate's Court and had no other basis for its intervention
in the
matter. This point need not be dealt with in light of the finding
that the proceedings in the Magistrate's Court were properly

conducted and do not fall to be set aside in any event.
[64]
FMO also sought to make something of an infelicitous mention by the
magistrate in his reasons as Mozambique being an
"associated
State"
[19]
.
There
is no dispute that Mozambique is a foreign State and that, as a fact,
the Magistrate and the Minister treated it as such.
The procedure
adopted can thus not be criticised.
[65]
I now turn to deal with the Minister's decisions
.
The
Review of the Minister's Decision to extradite to Mozambique
[66]
There has been some debate spurred by
FUL and the FMO as to whether the protocol has been
"domesticated'
- i.e. made part of our domestic law
and thus whether the Minister in failing to comply with Article 4(e)
committed directly a breach
of the Protocol. It was stated that this
Court should determine the question of whether the Protocol was part
of our domestic law
in order to determine the binding effect of the
Protocol on the Minister
.
In
light of the discussion below, I find that it
is
not necessary that we make this
determination.
[67]
Our Constitution reveals a clear and
uncompromising commitment to ensure that the Constitution and South
African law are interpreted
to comply with
international
law and
in
particular international human rights
law. Firstly, section 233 requires legislation to be interpreted in
compliance with
international
law;
secondly, section 39(1)(b)
requires
courts, when interpreting the Bill of
Rights, to consider internationa
l
law;
finally, section 37(4)(b)(i) requires legislation that derogates from
the Bill of Rights to be
"consistent
with the Republic's obligations under international law applicable to
states of emergency."
[68]
The
preamble
to
the
Prevention and Combating of Corrupt Activities Act
[20]
("PRECCA")
is
an example of the express recognition accorded by the
Legislature
to the Executive's part in the global commitment to fighting
corruption. it notes that corruption is a transnational
phenomenon
that crosses national borders and affects all societies and
economies; that it is equally destructive within both the
public and
private spheres of life; and that regional and international
co-operation is essential to prevent and control corruption
and
related crimes.
[69]
in
Glenister
v President of the Republic of South Africa
[21]
the
Constitutional Court underscored the
importance
of
the recognition of international law obligations on the exercise of
executive power as follows:
"[O]ur
Constitution
takes into its very heart obligations to which the Republic, through
the solemn resolution of Parliament, has acceded,
and which are
binding on the
Republic
in
international
law,
and makes them the measures of the State's conduct in fulfilling its
obligations in relation to the Bill of Rights.
"
[22]
[70]
In
this vein also our courts have been committed to exact
i
ng
compliance with our obligations under International Law
[23]
.
[71]
South Africa is a signatory and Member
State of the Protocol and thus bound thereby. On this basis, it is
sufficient that we examine
whether the former Minister's failure to
comply with Article 4(e) contravened sections 7(2) and 8 of the
Constitution which require
him to
"
respect,
protect, promote and fulfil"
South
Africa's internationa
l
law
commitments to access to justice for its people.
[72]
We
thus need not enter
into
the
complexity of examining how an internat
i
onal
treaty becomes domesticated within South Africa and whether this can
be said to have occurred in respect of the Protocol. It
may be noted,
as an aside
,
that
in
President
of the Republic of South Africa and Others v Quagliani and others
[24]
the
Constitutional Court found that the US Treaty had become domestic law
because of the provisions of the Act.
[73]
Mr Chang seeks to
interpret
Article 4(e) and the Mozambican law so
as to suggest that his immun
i
ty
does not affect his extradition. He raises three interpretative
arguments:
a.
First, he argues that because this
immunity is capable of being lifted, it is not absolute and
thus
is not hit by Article 4(e).
b.
Second, he argues that, in any event,
the immunity does not subsist but is only constituted by the National
Assembly when the accused
is charged. In this regard he says that the
question whether the Member of Parliament is to be afforded an
immunity depends upon
the decision of Parliament, one way or the
other, and that until Parliament decides the issue
,
the question as to the existence or
otherwise of the immun
i
ty
remains inchoate and thus it did not operate at the time of the
impugned decisions
.
c.
Third, he argues that a purposive
interpretation of Article 4(e) shou
l
d
yield the meaning that it is there to protect immune persons from
being sent to into the maws of unrelenting States
.
It should not, the argument goes, be
seen as part of the obligation to ach
i
eve
effective prosecution
.
[74]
As to the first argument, there is
,
to my mind
,
no scope whatsoever for a linguistic
interpretation of either Mozambican Articles 13 or 17 or the two read
in tandem which permits
of such an interpretation
.
In any event
,
to the extent that there were
uncertainty as to the meaning and operation of these provisions
,
it is put beyond question by the
exposition of the Mozambican Attorney General as to the Mozambican
law on this point, that the
immunity subsists until lifted
.
[75]
The second argument is also put paid to
by the clear language of Art
i
cle
4 (e) which states that immunity
"
for any reason
"
triggers the mandatory refusal. I
f
one needed fortification for this
,
interpretation, it is to be found in a
comparison between Article 8 of the US Treaty and Article 4(e)
.
Article 8 provides for just one reason
for immunity i.e
.
that
"
E
x
tradition
shall not be granted when the prosecuti
o
n
has be
c
ome
barred by lapse of time ac
c
ording
to the laws in the Requesting State.
"
Article 4
(
e
)
on the other hand is broader - it
encompasses
"
any
reason
,
including
lapse of t
i
me
o
r
amnesty
;"
Thus
,
on an application of the
expressio
unius est e
xc
lusio
alterius
principle
,
South Africa must be regarded as having
sp
e
cifically
and consciously broadened the range of the types of
i
mmunity
beyond that brought about by the lapse of t
i
me
.
[76]
As to the third arg
u
ment,
as to th
e
purpose
of Article 4
(
e
)
- there is no doubt that it
c
uts
both ways
:
it
prot
e
ct
s
th
e
p
e
rson
e
njoying
immunity from unlawful pros
ec
ution
a
n
d
,
a
s in this
case
,
it
allows for the proper adm
i
nistration
of internationa
l
justice.
Extradition has as its purpose the prosecution of the guilty. Thus it
would make no sense to extradite a person to a place
where he cannot
be prosecuted.
[77]
The
underlying crimes of which Mr Chang is accused involve corruption
.
Corruption
takes place with no regard to national boundaries. Thus the effective
eradication of corruption requires concerted and
coordinated efforts
internationally. This need has brought about various international
treaties against corruption of which South
Africa is a signatory
[25]
.
South Africa is thus part of a global effort to eradicate corruption
and has bound itself internationally and domestically to
taking
effective
steps to
investigate
and
prosecute corruption wherever it occurs. It acknowledges as part of
this participation that corruption and organised crime undermines
the
rights enshrined in the Bill of Rights, endangers the stability and
security of society and jeopardises sustainable development
and the
Rule of Law.
[78]
In
Geuking
Goldstone J encapsulated the
position thus:
"The
need for extradition
has
increased
because of the ever-growing frequency with which criminals take
advantage of modern technology, both to perpetrate serious
crime and
to evade arrest by fleeing to other lands. The government of the
country where the criminal conduct is perpetrated will
wish the
perpetrator to stand trial before its courts and will usually offer
to reciprocate in respect of persons similarly wanted
by the foreign
State. Apart from reciprocity, governments accede to request for
extradition from other friendly States on the
basis
of
comity. Furthermore, governments do not wish their own countries to
be, or be perceived as safe havens for the criminals of the

world.
"
[26]
[79]
Under section 233 of the Constitution:
"When
interpreting any legislation
,
every
court
must prefer an
y
reas
o
nable
interpretation of the legislation that is
consistent
with internati
o
nal
law
over any
alternative
interpretation that is inconsistent
with
international law."
[80]
Thus there can be no doubt that the
Protocol must be interpreted so as to allow empowerment in terms of
and compliance with South
Africa
'
s
international
ob
l
igations
.
As a starting point the former Minister
did not have the power to extradite Mr Chang to Mozambique because
this was prohibited by
his immunity. Thus his decision was
ultra
vires.
The
Minister also did not take
into
account
that Mr Chang had immunity because he did not know of it. It would
furthermore be irrational for a person to be extradited
so they could
be prosecuted for their crimes if they were
immune
from prosecution for such crimes
.
In reality
,
there was no
choice
to ma
ke
between the USA and Mozambique
.
The Minister did not have the option to
extradite
Mr
Chang
to
Mozambique. He was faced with only one valid request
-
that of
the
USA.
[81]
It was argued on behalf of Mozambique
that, in the absence of having asked for reasons for the Minister
'
s
decision, it was not possible to determine whether the Minister had
taken the immunity of Mr Chang into account. This argument
is
misplaced. Firstly
,
because
properly construed, the Minister's manuscript order constitutes the
Minister
'
s
decision and his
reasons;
secondly
because the FMO did, in fact
,
ask
for reasons in its notice of motion and no further reasons were
forthcoming; and thirdly because any further
reasons
could
not
conceivably
serve
to change the illegality which
exists
in
the
contravention of Article
4(e),
reg
ardless
of the former Minister
'
s
processes and
considerations.
[82]
Thus I find that the decision of the
Minister to extradite Mr Chang to Mozambique should be set aside
.
REMEDY
[83]
Mozambique asks that we undertake an
enquiry as to whether there are exceptional circumstances which merit
a departure from the
default position and substitute its own decision
for that of the Minister.
[84]
The basis for the departure it submits
is that the former Minister has demonstrated bias by bringing these
proceedings.
[85]
It
argues
that
that
this
Court has all the information that was submitted to the former
Minister to make the decision, together with subsequent information

that was not available at the time the former Minister made his
decision and that it should thus substitute its decision for that
of
the current Minister.
[86]
The accusation of bias
is
unfortunate, based as it
is
squarely on the fact that Minister
brings the application to review his predecessor's decision
.
[87]
It
is now well established that where an organ of State concludes that a
decision taken by such organ fails to comply with constitutional

prescripts, the organ of State is not only empowered but also obliged
to take steps to "right the wrong" through the
medium of
judicial review
[27]
.
[88]
An
exceptional circumstances enquiry as to remedy must, in any event,
take place in the context of what is just and equitable. Factors
to
be considered are whether the end result is in any event a foregone
conclusion; where the tribunal or functionary has exhibited
bias or
incompetence to such a degree that it would be unfair to require the
applicant to submit again to the same jurisdiction,
and whether the
court was in as good a position as the administrator to make the
decision
[28]
.
[89]
A case in which an order of substitution is sought accordingly
requires courts to be mindful of the need for judicial deference
and
their obligations under the Constitution.
[90]
There can be no doubt that the Ministers impugned decisions here are
of a policy-laden and polycentric nature as described
by Prof. C
Hoexter
[29]
in her succinct characterisation of judicial deference as accepted in
in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others.
[30]
[91]
Thus, in my view, a substitution order would be untenable in these
circumstances.
COSTS
[92]
Mr Chang is incarcerated and subject to an existing decision of the
former Minister that he be extradited to Mozambique. He
was thus
entitled to attempt to enforce the decision in order to secure either
his extradition or his release. Mozambique seeks
here to vindicate
its policies at an international level.
[93]
In the circumstances, I am not disposed
to order either of these parties
to
pay
the costs of the successful applicants or any of them.
ORDER
[94]
I thus make the following order:
1.
Mr Chang
'
s
application under case number 22157/2019 is dismissed.
2.
The Minister's decision to extradite Mr
Chang to Mozambique is set aside.
3.
To the extent that the Minister's
decision dismissed the US
extradition
request, it is set aside.
4.
Both decisions are remitted to the
current Minister
for
determination.
5.
The parties are
each
to pay their own
costs
in these applications
.
____________________
FISHER
J
HIGH
COURT JUDGE
GAUTENG
LOCAL DIVISION, JOHANNESBURG
It
is so ordered
,
___________________
LAMONT
J
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
concur,
___________________
MOLAHLEHI
J
H
COURTJUDGE
LOCAL
D
I
VISION,
JOHANNESBURG
Date
of Hearing:
16 -17 October 2019.
Judgment
Delivered:
1st November 2019.
APPEARANCES:
For
the Applicant
: Adv W.J Vermeulen SC with Adv J.A
Raizon.
Instructed
by
: BDK Attorneys
.
For
the Respondent
: Adv V Maleka SC with Adv Kazee.
Instructed
by
: State Attorney
For
the 1st intervening Party
:
Adv A. Katz SC with Adv E
.
Cohen.
Instructed
by
: Ian Levitt Attorneys
.
For
the 2nd Intervening Party
:
Adv W
.
Mokhare
SC with Adv M
.
Ramabulana
.
Instructed
by
: Mabunda Incorporated.
For
the
Amicus
Curae
: Adv Du Plessis SC with Adv S.
Pudifin
­
Jones.
Instructed
by
: Webber Wentzel Attorneys.
[1]
Then called the Minster of Justice and Correctional Services now
called the Minster of Justice and Constitutional Development.
[2]
Act 67 of 1962.
[3]
Article 4 reads as follows:
"MANDATORY GROUNDS FOR REFUSAL
TO EXTRADITE :Extradition shall be refused in any of the following
circumstances:
(a) if the offence for which
extradition is requested is of a political nature. An offence of a
political nature shall not include
any offence in respect of which
the State Parties have assumed an obligation, pursuant to any
multilateral convention, to take
prosecutorial action where they do
not extradite, or any other offence that the State Parties have
agreed is not an offence of
a political character for the purposes
of extradition;
(b) if the Requested State has
substantial grounds for believing that the request for extradition
has been made for the purpose
of prosecuting or punishing a person
on account of that person's race, religion, nationality, ethnic
origin, political opinion,
sex or status or that the person's
position may be prejudiced for any of those reasons;
(c) if the offence for which
extradition is requested constitutes an offence under military law,
which is not an offence under
ordinary criminal law;
(d) if there has been a final
judgment rendered against the person in the Requested State or a
Third State in respect of the offence
for which the person's
extradition is requested;
(e) if the person whose extradition
is requested has, under the law of either State Party, become immune
from prosecution or punishment
for any reason, including lapse of
time or amnesty;
(f) if the person whose extradition
is requested has been, or would be subjected in the Requesting State
to torture or cruel,
inhuman or degrading treatment or punishment or
if that person has not received or would not receive the minimum
guarantees in
criminal proceedings, as contained in Article 7 of the
African Charter on Human and Peoples Rights; and
(g) if the judgment of the Requesting
State has been rendered in absentia and the convicted person has not
had sufficient notice
of the trial or the opportunity to arrange for
his or her defence and he or she has not had or will not have the
opportunity
to have the case retried in his or her presence."
[4]
Section 9 provides as follows:
“
(1) Any person detained under
a warrant of arrest or a warrant for his further detention, shall,
as soon as possible be brought
before a magistrate in whose area of
jurisdiction he has been arrested, whereupon such magistrate shall
hold an enquiry with
a view to the surrender of such person to the
foreign State concerned. "
[5]
Section 11 provides as follows :
“
The Minister may- (a) order
any person committed to prison under section 1O to be surrendered to
any person authorized by the
foreign State to receive him or her; or
(b) order that a person shall not be
surrendered-
(i) where criminal proceedings
against such person are pending in the Republic, until such
proceedings are concluded and where
such proceedings result in a
sentence of a term of imprisonment, until such sentence has been
served;
(ii) where such person is serving, or
is about to serve a sentence of a term of imprisonment, until such
sentence has been completed;
(iii) at all, or before the
expiration of a period fixed by the Minister, if he or she is
satisfied that by reason of the trivial
nature of the offence or by
reason of the surrender not being required in good faith or in the
[6]
The document reads as follows:
"Assembly of the Republic"
Standing Committee Deliberation No. 17/2019 Of January 29 After the
National Parliament received
from the Supreme Court, a request for
approval of enforcement of the maximum coercion measure against the
MP Manuel Chang, the
Standing Committee of the National Parliament,
under provisions of number 1, of article 173 of the Constitution of
the Republic,
in conjunction with number 1, of article 13 of the
Statutes for Members of Parliament, approved by the Law No. 32/2014
of December
30 and paragraph a) of number 1 of article 66 of the
Rules of Procedure of the National Parliament, approved by law
No.12/16
of December 30, has decided: Single: Approves the
enforcement of maximum coercion measures against Manuel Chang .
Maputo, January
29, 2019 (emphasis added).
[7]
Article 174 of the Mozambican Constitution reads as follows:
"Immunities
1. Members of Parliament shall not be
detained or arrested, except when caught in the act of committing an
offence ('flagrante
delicto") nor will they face trial without
the consent of the National Assembly.
2. lf criminal proceedings are
pending in which a MP is the accused, the MP shall be heard by a
Counsellor Justice.
Members
of Parliament are entitled to a special forum and shall be tried by
the Supreme Court under provisions of the law."
[8]
Article 13.1 reads as follows:
"Members of Parliament shall not
be detained nor arrested, except in cases of being caught in the act
of committing an offence
(" flagrante delicto"), or face
trial without the consent of the National Parliament."
[9]
Article 17 reads as follows in relevant part:
Lifting
of Immunities:
1. the lifting of immunities and
(sic) preceded by debate in plenary of the assembly of the Republic,
the closed door.
2. the deliberations of the assembly
of the Republic are taken by secret ballot.
[10]
Record p 987 [72] of the Attorney General's combined Founding and
Answering affidavits.
[11]
See: State Information Technology Agency SOC Limited v Gijima
Holdings (Pty) Limited (CCT254/16)
[2017] ZACC 40
;
2018 (2) BCLR 240
(CC);
2018 (2) SA 23
(CC) at
[37]
.
[12]
Section 3(2) provides as follows:
"Any person accused or convicted
of an extraditable offence committed within the jurisdiction of a
foreign State which is
not a party to an extradition agreement shall
be liable to be surrendered to such foreign State, if the President
has in writing
consented to his or her being so surrendered."
[13]
In Re Ismail
[1998] UKHL 32
;
[1999] 1 AC 320
per Lord Steyn.
[14]
Id at at 326F-327G.
[15]
Section 10(1) provides as follows:
"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."
[16]
Section 10(2) provides as follows:
"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."
[17]
CCT35/02)
[2002] ZACC 29
;
2003 (3) SA 34
(CC);
2004 (9) BCLR 895
(CC) (12 December 2002).
[18]
Id at [45] and [46].
[19]
If it were an associated State this would attract a different
process under the Act which would reside in the Magistrate acting
in
terms of s 12 instead of s 10.
[20]
12 of 2004. The preamble states:
"WHEREAS the Constitution
enshrines the rights of all people in the Republic and affirms the
democratic values of human dignity,
equality and freedom;
AND WHEREAS the Constitution places a
duty on the State to respect, protect, promote and fulfil all the
rights as enshrined in
the Bill of Rights;
AND WHEREAS corruption and related
corrupt activities undermine the said rights, endanger the stability
and security of societies,
undermine the institutions and values of
democracy and ethical values and morality, jeopardise sustainable
development, the rule
of law and the credibility of governments, and
provide a breeding ground for organised crime;
AND WHEREAS the illicit acquisition
of persona l wealth can be particularly damaging to democratic
institutions, national economies,
ethical values and the rule of
law;
AND WHEREAS there are links between
corrupt activities and other forms of crime, in particular organised
crime and economic crime,
including money-laundering;
AND WHEREAS corruption is a
transnational phenomenon that crosses national borders and affects
all societies and economies, and
is equally destructive and
reprehensible within both the public and private spheres of life, so
that regional and international
cooperation is essential to prevent
and control corruption and related corrupt activities;
AND WHEREAS a comprehensive,
integrated and multidisciplinary approach is required to prevent and
combat corruption and related
corrupt activities efficiently and
effectively;
AND WHEREAS the availability of
technical assistance can play an important role in enhancing the
ability of States, including
by strengthening capacity and by
institution-building, to prevent and combat corruption and related
corrupt activities efficiently
and effectively;
AND WHEREAS the prevention and
combating of corruption and related corrupt activities is a
responsibility of all States requiring
mutual cooperation, with the
support and involvement of individuals and groups outside the public
sector, such as organs of civil
society and non­ governmental
and community-based organizations, if their efforts in this area are
to be efficient and effective;
AND WHEREAS the United Nations has
adopted various resolutions condemning all corrupt practices, and
urged member states to take
effective and concrete action to combat
all forms of corruption and related corrupt practices;
AND WHEREAS the Southern African
Development Community Protocol against Corruption, adopted on 14
August 2001 in Malawi, reaffirmed
the need to eliminate the scourges
of corruption through the adoption of effective preventive and
deterrent measures and by strictly
enforcing legislation against all
types of corruption;
AND WHEREAS the Republic of South
Africa desires to be in compliance with and to become Party to the
United Nations Convention
against Corruption adopted by the General
Assembly of the United Nations on 31 October 2003;
AND WHEREAS it is desirable to
unbundle the crime of corruption in terms of which, in addition to
the creation of a general, broad
and all-encompassing offence of
corruption, various specific corrupt activities are criminalized,
BE IT THEREFORE ENACTED . . . ."
[21]
2011 (3) SA 347 (CC); 2011 (7) BCLR 651 (CC).
[22]
Id at [178].
[23]
Recent examples which have unfolded on an international stage are:
DA v Minister of International Relations and Co-operation23
("the
Grace Mugabe case" ); Minister of Justice and Constitutional
Development v Southern Africa Litigation Centre
("the Al Bashir
case) ; Law Society of South Africa and Others v President of the
Republic of South Africa and Others (CCT67/18)
(2018) ZACC 51
;
2019
(3) BCLR 329
(CC);
2019 (3) SA 30
(CC) (11 December 2018)( "the
SADC Tribunal case"); Commissioner of Police v Southern African
Human Rights Litigation
Centre
2015 (1) SA 315
(CC) (the Torture
Docket case).
[24]
[2009] ZACC 1
;
2009 (4) BCLR 345
(CC);
2009 (2) SA 466
(CC) (21
January 2009).
[25]
The UN Convention Against Corruption, AU Convention against
Corruption OECD Anti-Bribery Convention. The SADC Protocol Against

Corruption.
[26]
At [2].
[27]
Department of Transport v Tasima (Pty) Ltd
2017 (2) SA 622
(CC)
Member of the Executive Council for Health, Eastern Cape v Kirland
Investments (Pty) Limited t/a Eye and Lazar Institute
(3) SA 481
(CC).
[28]
Trencon Construction v Industrial Development Corporation of South
Africa (Pty) Ltd and another
[2015] ZACC 22
;
2015 (5) SA 245
(CC)
paras [44] - [55].
[29]
The Future of Judicial Review in South African Administrative Law"
(2000) 117 SALJ 484
at 501-2. Passage defined judicial deference as
follows:
"a judicial willingness to
appreciate the legitimate and constitutionally-ordained province of
administrative agencies; to
admit the expertise of those agencies in
policy-laden or polycentric issues; to accord their interpretations
of fact and law
due respect; and to be sensitive in general to the
interests legitimately pursued by administrative bodies and the
practical
and financial constraints under which they operate. This
type of deference is perfectly consistent with a concern for
individual
rights and a refusal to tolerate corruption and
maladministration. It ought to be shaped not by an unwillingness to
scrutinise
administrative action, but by a careful weighing up of
the need for - and the consequences of - judicial intervention.
Above
all, it ought to be shaped by a conscious determination not to
usurp the functions of administrative agencies; not to cross over

from review to appeal."
[30]
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) (12
March 2004) at [46).