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[2020] ZAGPJHC 114
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Motsa v Minister of Justice and Correctional Services and Others (2016/19992) [2020] ZAGPJHC 114; 2021 (1) SACR 444 (GJ) (4 June 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBERS: 2016/19992
In
the matter between:
MOTSA,
SENZO
Applicant
and
THE
MINISTER OF JUSTICE AND
CORRECTIONAL
SERVICES
First
Respondent
DIRECTOR
OF PUBLIC PROSECUTIONS
GAUTENG
LOCAL
DIVISION
Second
Respondent
MRS
MALETE (MAGISTRATE,
KRUGERDORP)
Third
Respondent
Coram:
Wepener J
Heard
:
1 June 2020
Delivered
:
4 June 2020
Summary:
Extradition Act 67 of 1962 – Review of decisions taken by
Magistrate and Minister on the basis of illegality and irrationality.
There are two different and distinct processes.
JUDGMENT
Wepener,
J:
[1]
The applicant is a male, committed to the Krugerdorp Prison pursuant
to an order issued by the third respondent who is the Magistrate
of
Krugersdorp (the Magistrate) after holding an enquiry under the
Extradition Act
[1]
(the Act).
[2]
The first respondent is the Minister of Justice and Correctional
Services (the Minister) who is joined in his official capacity
and
who issued a decision that the applicant be surrendered to the
Kingdom of eSwatini (the Kingdom) at the request of the authorities
of that country.
[3]
The second respondent is the Director of Public Prosecutions who
conducted the enquiry on behalf of the State before the Magistrate.
[4]
There exists an extradition agreement between the Republic of South
Africa and the Kingdom, the terms and applicability of which
are not
contentious in this matter. Pursuant to that agreement the Kingdom
requested that the applicant (and others) be surrendered
to that
country to stand trial, inter alia, on a count of murder. It is
common cause that the person convicted on a count of murder
in the
Kingdom, may be liable to receive the death penalty. All the parties
before me accepted that the State may not surrender
a person to
another country if this will expose such person to a real risk of the
imposition and execution of the death penalty.
[2]
[5]
The applicant alleges that his extradition to the Kingdom may result
in the death penalty being imposed and executed if he is
convicted on
the charge of murder and, consequently, resists his extradition to
the Kingdom. The resistance is based on the judgment
in
Tsebe
in that it was argued that the applicant would run the real risk of a
violation of his right to life, right to human dignity and
right not
to be treated or punished in cruel, inhuman or degrading way in the
Kingdom in breach of s 7(2)
[3]
of the Constitution.
[4]
[6]
The resistance came before me in the form of a review. The applicant
seeks to review two decisions. The first decision is that
of the
Minister that the applicant be surrendered to the Kingdom on the
basis that the decision is irrational and irregular and
that it falls
to be reviewed and set aside. The second decision is that of the
Magistrate who committed the applicant to prison
on 14 November 2014,
also attacked on the basis that it is irrational and irregular.
[7]
I was not addressed on the applicability of these grounds of review
and the soundness thereof. For purposes of this judgment,
and without
a review of the meaning of these terms in review proceedings, I
accept that the grounds of review may be applied in
this matter
without making any finding to that effect.
[8]
I will deal with the decision of the Magistrate first. During
November 2014, the Magistrate held an enquiry and received evidence
and argument pursuant to s 10 of the Act. In terms of s 10:
‘
(1) If upon
consideration of the evidence adduced at the enquiry referred to in
section 9(4)(a) and (b)(i) the magistrate finds
that the person
brought before him or her is liable to be surrendered to the foreign
State concerned and, in the case where such
person is accused of an
offence, that there is sufficient evidence to warrant a prosecution
for the offence in the foreign State
concerned, the magistrate shall
issue an order committing such person to prison to await the
Minister’s decision with regard
to his or her surrender, at the
same time informing such person that he or she may within 15 days
appeal against such order to
the Supreme Court.
(2) For the 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) If the magistrate
finds that the evidence does not warrant the issue of an order of
committal or that the required evidence
is not forthcoming within a
reasonable time, he shall discharge the person brought before him.
(4) The magistrate
issuing the order of committal shall forthwith forward to the
Minister a copy of the record of the proceedings
together with such
report as he may deem necessary.’
The
Magistrate considered the evidence and issued and order committing
the applicant to prison. The only issue raised by the applicant
in
this court is that the decision is irregular and irrational in that
the Magistrate did not properly consider the fact that the
applicant
may be sentenced to death in the event of him being convicted of
murder in the Kingdom.
[9]
The difficulty with this submission is two-fold. Firstly, the
Magistrate did consider this issue. She took into account that
there
is the possibility of a death penalty being imposed and also
considered that the undertaking given on behalf of the government
of
the Kingdom that the death penalty, if imposed, will not be put into
operation.
[10]
Secondly, the question of the execution as opposed to the imposition
of a death penalty is not an issue which the Magistrate
should
properly have regard to. In
Director
of Public Prosecutions, Cape of Good Hope v Robinson
[5]
it was
held
[6]
that the extradition
magistrate conducting an enquiry in terms of s 10(1) of the Act has
no power to consider whether the constitutional
rights of the person
sought to be extradited may be infringed upon extradition. This is an
aspect to be considered by the Minister
when dealing with such an
application.
[11]
There being no other challenge to the decision of the Magistrate,
there is no basis for it being reviewed and set aside and
that order
stands.
[7]
I need not consider
whether the applicant has other remedies available to him.
[12]
Pursuant to the scheme of the Act, the Minister then considered the
request to surrender the applicant to the Kingdom. When
considering
the matter during 2015 the Minister had before him what is referred
to as the first undertaking and confirmation. In
this document the
Minister of Justice and Constitutional Affairs of the Kingdom states:
‘
I undertake that
should, for reasons unforeseeable, the court pronounces a death
sentence against the fugitives Dumsane Papa Stewart,
Nathi Motsa,
Senzo Motsa and Aaron Macaroni Motsa, not be sentenced to death and I
shall, in terms of the above cited section and
as a member of the
prerogative of Mercy Committee ensure that His Majesty the King is
advised to substitute the death penalty for
a life sentence. The King
had delegated such of advisory functions to me in this regard.’
The
respondents rely on the judgment in
Tsebe
for an argument that
the foreign State by this document gave the assurance that it will
not impose, or if it does impose the death
penalty, not to execute
it. The applicant submitted that the wording of the document does not
go far enough to constitute such
an assurance.
[13]
The respondents then relied on a further undertaking and confirmation
(the second undertaking) issued on behalf of the Kingdom,
in which
the Minister said:
‘
I undertake that
should, for reasons unforeseeable, the court pronounces a death
sentence against the fugitive Senzo Motsa, not
be sentenced to death
and shall, in terms of the above cited section and as a member
of the Prerogative of Mercy Committee
shall ensure that the death
penalty is substituted for a life sentence. The King had delegated
the authority to issue the death
penalty undertaking to me.
[14]
The second undertaking seems, on face value, to be an undertaking
that the death penalty, if imposed, will not be executed.
However, it
became common cause that the second undertaking did not serve before
the Minister when he took the decision in 2015
and counsel for the
respondents conceded that it played no role when the Minister took
his decision to surrender the applicant
to the Kingdom.
[15]
After argument was completed, counsel for the respondents advised
that there may indeed be another decision of the Minister
where he
duly took the second undertaking into account and where he took a new
decision based on the facts and the second undertaking.
If this is
so, that decision may stand unaffected by these proceedings but I
need not speculate on those facts save to the extent
that, if the
second decision of the Minister is unassailable, the reviewing and
setting aside of the first decision may be academic.
There is no such
evidence before me and if the Minister issued a later decision based
on the second undertaking that is a different
matter and does not
fall to be considered here.
[16]
The question then to be answered is whether the decision of the
Minister taken in 2015 can withstand a review as it was based
on the
first undertaking. That decision could only lawfully be taken if
there was an undertaking in place from the Kingdom that
the death
penalty would not be imposed or if imposed would not be executed.
[8]
The test is whether there is a real risk of the imposition and
eventual execution of the death penalty.
[9]
In order to consider this, the undertaking or requisite assurance
[10]
is to be considered.
[17]
Importantly, the death penalty in eSwatini is not mandatory. This
fact is common cause or at least is not contentious. In this
sense
the imposition of the death penalty is only a possibility and not a
real risk as was the case with Mr. Phale in
Tsebe
.
[11]
In addition, the Minister of Justice and Constitutional Affairs of
the Kingdom solemnly undertook to ensure that the death penalty,
if
imposed by a court, will be commuted to a life sentence, a matter
which is within his powers, it having been delegated to him
by the
King. The relevant Minister also says that no death sentence had been
imposed since 2001 in the Kingdom and that those sentences
that were
imposed in 2001 were commuted to life sentences.
[18]
I am of the view that the undertaking given by the government of the
Kingdom removes any real risk of a death sentence being
executed in
the unlikely event of it being imposed.
[19]
The Minister, in my view, correctly relied upon the undertaking in
order to come a decision. In these circumstances the decision
is
neither irregular nor irrational but based on the facts before the
Minister.
[20]
In all the circumstances, the application to review both the
decisions the Magistrate and the Minister must fail and the
application
is dismissed with costs.
_________________
W.L.
Wepener
Judge
of the High Court of South Africa
APPEARANCES
Counsel for the
Applicant: T. Matimbi
Attorney for the
Applicant: Randela Attorneys Inc.
Counsel for First
Respondent: N. Makopo
Attorney for First
Respondent: State Attorney
Counsel
for Second Respondent: F. Mohamed
[1]
Act
67 of 1962.
[2]
Minister
of Home Affairs and Others v Tsebe and Others
2012 (5) SA 451 (CC).
[3]
‘
The
state must respect, protect, promote and fulfil the rights in the
Bill of Rights.’
[4]
Act
108 of 1996.
[5]
2005
(1) SACR 1.
[6]
At
para 71.
[7]
See
Robinson
para 71.
[8]
See
Tsebe
para 42.
[9]
See
Tsebe para 43 and 53.
[10]
See
Tsebe para 57.
[11]
See
Tsebe para 72.