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[2010] ZAWCHC 422
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Palazzolo v Minister of Justice and Constitutional Development and Others (4731/2010) [2010] ZAWCHC 422 (14 June 2010)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
[WESTERN
CAPE HIGH COURT, CAPE TOWN]
Case No:
4731/2010
In
the matter between:
VITO
ROBERTO PALAZZOLO
…......................................................
Applicant
and
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
…............................
First
Respondent
THE
FORMER MINISTER OF JUSTICE
AND
CONSTITUTIONAL DEVELOPMENT
…............
Second
Respondent
THE
DIRECTOR-GENERAL: JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
…...........................
Third
Respondent
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
….................................................................
Fourth
Respondent
JUDGMENT
DELIVERED: 14 JUNE 2010
FOURIEJ:
INTRODUCTION
[1]
The events preceding this review application span a period of more
than 20 years. Ever since applicant's arrival in South Africa
on 26
December 1986, his relationship with the South African authorities
has been troubled. In fact, he maintains that, probably
because of
his undeserved reputation as an influential member of the Italian
Mafia, the South African Government has for many years
waged a
vendetta against him.
[2]
Notwithstanding this troubled relationship, applicant was granted
South African citizenship by automatic naturalisation on 24
January
1995. His alleged membership of the Italian Mafia has, however, led
to six requests by the Italian Government to the South
African
authorities, for the extradition of applicant. The first five
requests, which were made during the period December 1992
to August
2003, were, for a variety of reasons, unsuccessful. The sixth
request, dated 16 January 2007, was received by the South
African
Government on 5 February 2007. It is this request which is the
subject of the present application.
[3]
The latest request for applicant's extradition is based on his
conviction, in absentia, by the Criminal Court of Palermo on
5 July
2006. Applicant was convicted under section 416
bis
of
the Italian Criminal Code, of the offence of complicity of aggravated
Mafia-type association. He was sentenced to 9 years imprisonment.
The
conviction and sentence were subsequently confirmed by the Appeal
Court of Palermo and by the Supreme Court of Appeal in Rome.
THE
LEGISLATIVE SCHEME
[4]
As explained in
Harksen
v President of the Republic of South Africa & Others
2000
(2) SA 825
(CC) at para 4, an extradition procedure works both on an
international and a domestic plane. On the international plane, a
request
from one foreign State to another for the extradition of a
particular individual, and the response to the request, is governed
by the rules of public international law. The general legal basis for
extradition is treaty, reciprosity or comity. However, before
the
requested State may surrender the requested individual, there must be
compliance with its own domestic laws. Each State is
free to
prescribe
when
and how an extradition request will be acted upon and the procedures
for the arrest and surrender of the requested individual.
[5]
In the instant matter a treaty, namely the European Convention on
Extradition (1957) ("the Convention
1
'),
governs extradition between South Africa and Italy. On the domestic
level, the Extradition Act No. 67 of 1962 ("the Act"),
prescribes the manner in which the extradition request is to be
acted upon by the South African Government and our courts. South
Africa acceded to the Convention, and the two Additional Protocols
thereto, on 13 May 2003. Article 1 of the Convention creates
the
fundamental international obligation, by which the contracting
parties undertake to surrender to each other, subject to the
provisions and conditions of the Convention, all persons against
whom the competent authorities of the requesting party are
proceeding for an offence or who are wanted by the said authorities
for the carrying out of a sentence or detention order.
[6]
Article 2.1 of the Convention provides as follows:
"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 (sic) of at
least one year or by more severe
penalty... "
This
constitutes the Convention's double criminality requirement, namely
that the relevant offence should be punishable under
the laws of the
requesting party and of the requested party.
[7]
Article 12 of the Convention prescribes the following formalities:
"(1)
The request shall be in writing and shall be communicated through
the diplomatic channel. Other means of communication
may be arranged
by direct agreement between two or more Parties.
(2)
The request shall be supported by:
(a)
The original or an authenticated copy of the conviction and sentence
or detention order immediately enforceable or of the
warrant of
arrest or other order having the same effect and issued in
accordance with the procedure laid down in the law of the
requesting
Party;
(b)
A statement of the offences for which extradition is requested. The
time and place of their commission, their legal descriptions
and a
reference to the relevant legal provisions shall be set out as
accurately as possible; and
(c)
A copy of the relevant enactments or, where this is not possible, a
statement of the relevant law and as accurate a description
as
possible of the person claimed, together with any other information
which will help to establish his identity and nationality.
"
[8]
The relevant provisions of the Act, creating the mechanism for the
extradition of persons liable to be extradited, may be
summarised as
follows:
(a)
Requests for the surrender of persons to a foreign State must be
made to the Minister of Justice (presently the Minister of
Justice
and Constitutional Development) ("the Minister") (Section
4 (1)).
(b)
Upon receipt of a notification from the Minister to the effect that
a request for the surrender of a person to a foreign State
has been
received, a magistrate may issue a warrant for the arrest of such
person (Section 5 (l)(a)).
(c)
Any person detained under a warrant of arrest must be brought before
a magistrate in whose area of jurisdiction such person
has been
arrested, whereupon the magistrate must hold an enquiry with a view
to the surrender of such person to the foreign State
concerned
(Section 9(1)).
(d)
If upon consideration of the evidence adduced at the enquiry, the
magistrate finds that the person brought before him or her
is liable
to be surrendered to the foreign State, he or she shall issue an
order committing such person to prison to await the
Minister's
decision with regard to his or her surrender (Section 10(1)).
(e)
The magistrate issuing the order of committal must forthwith forward
the copy of the record of the proceedings, together with
such report
as he or she may deem necessary, to the Minister. The Minister may
order or refuse, with reference to certain criteria,
surrender to
the requesting foreign State (Sections 10 (4) and 11).
(f)
Any person against whom an order under section 10 has been issued,
has the right of appeal to the High Court and no order
for the
surrender of such person shall be executed before the right to an
appeal has been exercised or waived (Sections 13 and
14).
THE
ISSUING OF THE SECTION 5 (1) (a) NOTICE
[9]
The instant request for applicant's extradition was held over by the
South African Department of Justice and Constitutional
Development
("the Department"), pending the outcome of the appeal
process in Italy. When the Supreme Court of Appeal
in Rome finally
dismissed applicant's appeal on 13 March 2009, the Department set
the process in motion for applicant's extradition.
This resulted in
second respondent (Minister Surty) issuing a written notification in
terms of Section 5 (1) (a) of the Act,
on 23 April 2009. It is,
however, common cause that the notice has not yet been transmitted
to a magistrate, as contemplated
in Section 5 (1) (a) of the Act.
Minister Surty was subsequently succeeded by the first respondent
(Minister Radebe) who, on
16 July 2009, confirmed or endorsed in
writing that he agreed with Minister Surty's decision to issue the
Section 5 (1) (a) notice
and that he had no reason to differ from
it.
RELIEF
SOUGHT BY APPLICANT
[10]
The issuing of the notification by Minister Surty and the subsequent
confirmation thereof by Minister Radebe, prompted applicant
to
institute these review proceedings. Wide-ranging relief is sought,
including the reviewing and setting aside of the decisions
of
Ministers Surty and Radebe, to issue and confirm the notice in terms
of section 5
(I)
(a)
of the Act. Ancillary and alternative relief is also sought, to
which
I will in due course refer.
DISCUSSION
[11]
In
determining whether the decision to issue a notice in terms
of
section 5 (1) (a) of the Act, is invalid and should be
reviewed and set
aside, it is necessary to decide what the
content of the Minister's duty is
in issuing such a notification.
[12]
Applicant submits that the Minister, in issuing the notification, is
required to reach a conclusion as to whether the person
is liable to
be extradited to the requesting State. Respondents, on the other
hand, contend that all that is required of the
Minister at the
section 5 (1) (a) stage, is to satisfy himself or herself as to the
formal validity of the extradition request.
They submit that a
conclusion as to whether such a person is liable to be extradited to
the requesting State, can only be reached
by a magistrate after an
enquiry as contemplated in sections 9 and 10 of the Act.
[13]
The adjudication of this issue calls for an interpretation of the
relevant provisions of the Act and the Convention. When
interpreting
any legislation, section 39 (2) of the Constitution of the Republic
of South Africa, 1996, enjoins the courts to
promote the spirit,
purport and objects of the Bill of Rights. The Act is silent as to
what is required of the Minister before
issuing the notification in
terms of section 5(1) (a), while section 4 (2) merely provides that
a request for the extradition
of a person from the Republic, shall
be handed to the Minister. Section 5 (1) (a) of the Act deals with
the issuing of the notification
by the Minister, which triggers the
process at the domestic level, as the receipt thereof by the
magistrate entitles him or her
to issue a warrant for the arrest of
the person to be extradited, which then leads to the enquiry
envisaged in section 10.
[14]
The Convention, which regulates the procedure on the international
plane, confirms the obligation of the parties thereto
to extradite
and to surrender to each other, subject to the conditions laid down
in the Convention, persons who have committed
offences punishable
under the laws of the requesting party and of the requested party.
As indicated earlier, Article 12 of the
Convention details the
formalities with which the request and supporting documents have to
comply. However, as the Convention
only deals with the extradition
process on an international plane, it does not prescribe the manner
in which the requested party
has to deal with the request at the
domestic level.
[15]
In construing the provisions of the Act it is evident that, upon
receipt of a request for the extradition of a person, the
Minister
has to take a decision as to the fate of the request. It is obvious
that the Minister has the option of either refusing
the request or
acceding thereto by issuing a notice in terms of section 5 (1) (a)
of the Act. A third initial option also appears
to be available,
namely, to require an incomplete or formally defective request to be
amended or supplemented.
[16]
At the risk of stating the obvious, it has to be noted that the Act
does not prescribe what decision the Minister has to
take, nor does
it state that the Minister is obliged to issue a notice in terms of
section 5(1) (a). Therefore, logic dictates
that the Minister is
required to form a view as to whether or not a section 5 (1) (a)
notification should be issued, which, as
already demonstrated,
triggers the extradition process.
[17]
The question which now presents itself, is what considerations are
to be taken into account by the Minister, in deciding
whether or not
a section 5 (1) (a) notification should be issued. Once again, one
has to turn to the Convention and the Act for
an answer. It is, in
my view, clear from the provisions of the Convention and the Act,
that, in this instance, the rule of double
criminality underlies the
process of extradition. This much appears from Article 2.1 of the
Convention and sections 2 and 3 of
the Act.
[18]
The rule of double criminality requires that
"the
conduct claimed to constitute an extraditable crime should
constitute a crime in both the requesting and the requested
state".
See
Dugard,
International
Law: A South African Perspective
(3
Edition) at p. 215.
[19]
Section 2 (1) (a) of the Act, empowers the President to conclude
extradition agreements with foreign States, providing for
the
surrender on a reciprocal basis of persons accused or convicted of
the commission of extraditable offences specified in such
agreement.
Section 3 (1) of the Act, provides that a person accused or
convicted of an offence included in an extradition treaty,
may be
extradited. As mentioned earlier, Article 2.1 of the Convention
provides that extradition
"shall
be granted in respect of offences punishable under the laws of the
requesting party and of the requested party...".
Therefore,
in the instant matter, applicant may be liable to be extradited in
circumstances where he has been convicted or is
accused of an
extraditable offence, i.e. an offence punishable under the laws of
Italy and of the Republic of South Africa. See
also the definition
of
"extraditable
offence "
in
section 1 of the Act.
[20]
I am in agreement with the submission made on behalf of applicant,
that common sense dictates that, upon the receipt of a
request which
is formally in order, the Minister would need to consider whether,
at least
prima
facie,
a
case has been made that applicant, as the target of the request, has
been convicted or is accused of an extraditable offence.
This view
is underscored by a two judge decision of this court in
Abel
v Minister of Justice and Constitutional Development & Others
2001
(1) SA 1230
(C) at 1245A-C, where Traverso J (as she then was) held
that, before the Minister can issue a notification for purposes of
Section
5 (1) (a), he or she must have before him or her a request
that states or shows that the person in question is accused or
convicted
of an extraditable offence, alternatively an offence
included in an existing extradition treaty, committed within the
jurisdiction
of the requesting State.
[21]
It should be borne in mind that, as was held in
Abel,
the
Minister is not required, before issuing a notice in terms of
section 5 (1) (a) of the Act, to be satisfied that the person
concerned is indeed liable to be surrendered to the requesting
State. Nor is the Minister required to conduct an investigation
into
the merits of the request for extradition. What was decided in
Abel,
is
that before the Minister can issue the Section 5 (1) (a)
notification, the request must
state
or show
that
the person in question is accused or convicted of an extraditable
offence, alternatively an offence included in an existing
extradition treaty.
[22]
I
respectfully
agree with the approach adopted in
Abel.
Put
differently,
I
disagree
with the submission on behalf of respondents, that, before issuing
the section 5 (1) (a) notification, the Minister was
not required to
reach any conclusion or to form any view as to whether,
ex
facie
the
request, it has been stated or shown that applicant has been
convicted or is accused of an extraditable offence. This approach
of
respondents reduces the function of the Minister to that of a
gatekeeper who merely has to satisfy himself or herself as to
the
formal validity of the extradition request. As submitted on behalf
of applicant, it is difficult to comprehend why, if indeed
the
Minister's scrutiny is only formal, the task would have been
legislatively assigned to a Minister of the National Cabinet.
[23]
One should also bear in mind that the Constitutional Court has held
that, when in terms of section 3 (2) of the Act the President
consents to the surrender of a person to a foreign State in
circumstances where such foreign State is not party to an
extradition
agreement, he or she has to have regard to the fact that
the person in question has been convicted or is accused of criminal
conduct in the requesting State and that the offence is an
extraditable offence. See
Geuking
v President of the RSA & Others
[2002] ZACC 29
;
2004
(9) BCLR 895
at para 26.
[24]
The decision in
Geuking
lends
support to the view that, when acting in terms of section 5 (1) (a)
of the Act, the Minister is not merely a formal gatekeeper,
but is
required to form a view as to the extraditability of the relevant
offence.
[25]
It was argued on behalf of respondents, that, insofar as the court
in
Abel
held
that before the Minister can issue a section 5 (1) (a) notification,
he or she must have before him or her a request that
states or shows
that the person in question is accused or has been convicted of an
extraditable offence, the judgment is clearly
wrong. I disagree. On
the contrary, I am, for the reasons already furnished, of the view
that, in so deciding, the court in
Abel
correctly
required that the Minister should form a view as to the
extraditability of the offence concerned. Hence the requirement
that
the request must
state
or show
this.
[26]
I am accordingly of the view that, although the Act is silent as to
what is required of the Minister before issuing a section
5 (1) (a)
notification, it must, by necessary implication, follow that the
Minister is required to conclude, at least
prima
facie,
that,
ex
facie
the
request, the target of the request has been convicted or is accused
of an extraditable offence. If this requirement is not
implied, it
would lead to an absurdity when the extradition of a person, who has
clearly not committed an extraditable offence,
is requested. It
should be borne in mind that the issuing of a section 5 (1) (a)
notice may lead to the arrest of the person
concerned, which arrest
is the precursor to an enquiry in terms of sections 9 and 10 of the
Act. The constitutional rights of
a South African citizen arrested
in this manner could no doubt be violated. The rights to freedom and
security of the person,
freedom of movement and residence, freedom
of assembly, freedom of association and freedom of trade, occupation
and profession,
come to mind. (See sections 12 (1) (a), 21, 17, 18
and 35 of the Constitution).
[28]
Finally, on this issue, the proof of the pudding is in the eating.
It is common cause that previous requests by the Italian
Government
for the extradition of applicant, were refused prior to the enquiry
stage, also by reason of the fact that the alleged
offence was not
an extraditable offence.
[29]
I now turn to consider whether, in issuing the section 5 (1) (a)
notice in the instant case, the Minister formed a view that
applicant has been convicted or is accused of an extraditable
offence. It is common cause between the parties, that the operative
decision is that of Minister Surty. As mentioned earlier, Minister
Radebe merely confirmed or endorsed the decision of his predecessor
and stated that he had no reason to differ from it.
[30]
It is also common cause that the only basis for the Italian request
for the extradition of applicant, is his conviction of
complicity of
aggravated Mafia-type association under section 416
bis
of
the Italian Criminal Code. The recurring view expressed by the
deponent to respondents' answering affidavit, is that it was
not
necessary for the Minister to determine whether this offence is one
upon which applicant may be extradited in terms of South
African
Law. The deponent puts it as follows at paragraph 405 of the
answering affidavit:
"The
Minister does not need to be satisfied, prior to the issue of a
section 5 (1) notification, that the offence in question
is indeed
an extraditable offence. That is one of the jurisdictional facts of
which the magistrate (and the Minister when considering
the
magistrate's findings) must be satisfied following an inquiry held
as a result of the section 5 (1) notification ".
[31]
It is evident from the respondents' papers, including the supporting
affidavits of Ministers Surty and Radebe, that neither
Minister
Surty nor Minister Radebe applied his mind to the question whether
the offence for which applicant had been convicted
in Italy,
constitutes an extraditable offence. In particular, both of them
failed to consider whether the request of the Italian
Government
showed, at least
prima
facie,
that
applicant has been convicted or is accused of an extraditable
offence.
[32]
In his supporting affidavit, Minister Surty states that he
understood that he had a discretion as to whether or not he should
issue a section 5 (1) (a) notification, but saw no reason to
exercise that discretion against the requesting State. In his
affidavit, Minister Radebe confirms that he also appreciated that he
had a discretion in considering whether or not a section 5
(1) (a)
notification should be issued. Minister Radebe, similarly, adds that
he saw no reason to exercise that discretion against
the requesting
State. It appears from both the affidavits, that they exercised
their discretion bearing in mind that applicant
"had
been convicted of a serious crime in Italy and sentenced to a
considerable period of imprisonment".
What
they do not say, is that,
ex
facie
the
request and the documents accompanying same, they formed the view,
at least
prima
facie,
that
applicant has been convicted or is accused of an extraditable
offence. To use the language of Traverso J in
Abel,
the
Ministers do not allege that, before they issued or confirmed the
notification for purposes of section 5 (1) (a), they had
before them
a request that stated or showed that applicant has been convicted or
is accused of an extraditable offence.
[33]
In argument an alternative submission was advanced on behalf of
respondents, namely that if it is found that
Abel's
case
is correct, then the Minister had only to be satisfied that the
request on its face stated or showed the existence of an
extraditable offence. It was argued that the Minister was quite
correct in accepting that an extraditable offence has been stated
or
shown, especially if the factual basis for the court of Palermo's
finding as set out in its judgment (which judgment served
before the
Ministers as part of the request), is read with the provisions of
the
Prevention of Organised Crime Act No. 121 of 1998
and the
Prevention and Combating of Corrupt Activities Act No. 12 of 2004
.
[34]
The difficulty that I have with this submission, is that it is not
the respondents' case that Minister Surty or Minister
Radebe, was,
in fact, satisfied that the request on its face stated or showed the
existence of an extraditable offence. In any
event, the request does
not state or show that a conviction of this Mafia-type association
under
section 416
bis
of
the Italian Criminal Code, has a counterpart in South African
criminal law, resulting in it being an extraditable offence.
Respondents' reliance on Acts 121 of 1998 and 12 of 2004 is, in my
opinion, misplaced. These Acts do not criminalise the joining
of an
association with Mafia-type characteristics (as section 416
bis
of
the Italian Criminal Code does) and had, in any event, not yet been
promulgated at the time that applicant was allegedly involved
in
Mafia-type activities in Italy, which led to his conviction by the
court of Palermo. As held by the House of Lords in
R
v Bow Street Metropolitan Stipendiary Magistrate: Ex Parte Pinochet
Ugarte (No.3)
[1999]
2 ALL ER 97
, 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.
[35]
As indicated earlier, both Ministers allege that they exercised
their discretion in favour of the requesting State on the
basis that
applicant had been convicted of a serious crime in Italy and
sentenced to a considerable period of imprisonment. They
did not, as
appears from their affidavits, at any stage consider the existence
or not of an extraditable offence. It follows
that, even if this
interpretation of the
Abel
judgment
were to be accepted, respondents have not shown that the Ministers
did, in fact, accept that an extraditable offence
had been stated or
shown to exist.
[36]
I have to reiterate that, in my view, it is required of the Minister
before issuing a section 5 (1) (a) notification in the
present
circumstances, to conclude, at least
prima
facie,
that
ex
facie
the
request, applicant has been convicted or is accused of an
extraditable offence. In my opinion, this requirement constitutes
a
jurisdictional prerequisite which has to be present before the
Minister can lawfully issue a notification in terms of section
5 (1)
(a) of the Act. Put differently, the Minister must have before him
or her an extradition request containing sufficient
information to
enable him or her to establish, at least
prima
facie,
the
objective fact that the person whose extradition is sought is a
person liable to be extradited.
[37]
I agree that the decisions of Ministers Surty and Radebe constituted
"administrative
action",
as
defined in section 1 of the Promotion of Administrative Justice Act
No. 3 of 2000 ("PAJA"). In addition, the decisions
constituted the exercise of public power, which can only be
legitimate when it is lawful. The failure of the Ministers to
consider
whether,
ex
facie
the
request, it was shown, at least
prima
facie,
that
applicant has been convicted or is accused of an extraditable
offence, renders both decisions unlawful. I therefore conclude
that
the decisions of Ministers Surty and Radebe fall to be reviewed and
set aside, due to the violation of the principle of
legality and
also in terms of section 6 (2) (b) and/or 6 (2) (d) and/or 6 (2) (e)
(iii) of PAJA.
[38]
I should add that, in my view, the decisions of the two Ministers
may also be impugned on the ground that these decisions
were based
on material errors of fact, which resulted in them taking irrelevant
considerations into account.
[39]
In arriving at their respective decisions, Ministers Surty and
Radebe had regard to memoranda prepared by the Department.
They
concede that in the memoranda they were misinformed by the
Department as to the number and nature of the offences committed
by
applicant in Italy. Minister Surty concedes that the departmental
memorandum addressed to him
"incorrectly
referred to the applicant having also been convicted of
international drug trafficking".
Minister
Radebe concedes that he was misinformed that applicant had also been
convicted of international drug smuggling and money
laundering. In
exercising their discretion to issue and confirm the section 5 (1)
(a) notice, they accordingly relied on incorrect
information, as
applicant had not been convicted in Italy of international drug
trafficking and/or money laundering.
[40]
Even before the inception of our new constitutional order, decisions
of functionaries were reviewed and set aside in circumstances
where
the decision was taken on the strength of incorrect information. In
Swart
v Minister of Law and Order & Others
1987
(4) SA 452
(C), Rose-Innes J set aside a detention order authorised
by the Minister in circumstances where the Minister's opinion had
been
formed with reference to a report placed before him which was
false in an important and decisive respect. The learned Judge said
the following at 480A - D:
"One
is not concerned with the merits of the opinion resulting from the
exercise of discretion, but with whether the exercise
of the
discretion, whatever the outcome, was a due, proper and regular
exercise of discretion. The effect of innocent misrepresentation
misleading the Minister is the same as the effect of fraud. ...His
discretion has been trammelled and misled... by false information
and considerations which have impinged upon the due exercise of his
discretion. "
[41]
Ministers Surty and Radebe, however, maintain that they would not
have exercised their discretion differently had they not
been so
misinformed. But, as pointed out by applicant, there is
well-established authority that, where a decision may be said
to
have been influenced by material errors, the decision-maker cannot
defend the decision by speculating what his decision would
have been
absent such error. De Smith, Woolf and Jowell,
Judicial
Review of Administrative Action
(1995)
put it as follows at paragraph 6-086:
If
the influence of irrelevant factors is established, it does not
appear to be necessary to prove that they were the sole or
even the
dominant influence. As a general rule it is enough to prove that
their influence was material or substantial."
[42]
The errors contained in the memoranda prepared by the Department,
are no doubt of a serious nature. They relate to the main
purpose of
the request, i.e. the extradition of applicant for offences
allegedly committed by him in Italy. International drug
trafficking
and money laundering are no doubt serious offences, which would
impress upon any objective reader of the memoranda
that the person
whose extradition is sought, has been convicted of very serious
crimes. In these circumstances the Ministers
cannot, in my view, be
allowed to defend the decision by speculating what their decision
would have been had the memoranda not
contained these errors of
fact.
[43]
I therefore find that the respective decisions of the Ministers are
also liable to be set aside due to the fact that same
were based on
material errors of fact. In
Pepcor
Retirement Fund and Another v Financial Services Board and Another
2003
(6) SA 38
(SCA), it was held at para 47, that the doctrine of
legality requires that the power conferred on a functionary to take
decisions
in the public interest, should be exercised properly, i.e.
on the basis of the true facts. Similarly, section 6 (2) (e) (iii)
of PAJA provides that a court has the power to review an
administrative action if the action was taken because irrelevant
considerations
were taken into account.
CONCLUSION
[44]
In view of the aforesaid findings, applicant is entitled to the
relief sought in paragraphs 8.3 and 8.4 of the amended notice
of
motion, i.e. the reviewing and setting aside of the respective
decisions taken by Ministers Surty and Radebe. It is accordingly
not
necessary to consider the additional ground upon which the review
application is based, namely the alleged existence of institutional
bias on the part of the South African authorities.
[45]
Returning to the amended notice of motion, it appears that the need
for any interim relief as sought in paragraph 2 thereof,
has fallen
away. As far as paragraph 3 is concerned, applicant has not
proceeded with the relief relating to Mr. E. Daniels.
As regards the
relief involving Mr. N. J. Makhubele, I do not believe that it would
be appropriate for this court to prescribe
to the Department which
of its officials should be involved in the processing of any
extradition requests. Similarly, I am of
the view that the granting
of an order in terms of paragraph 4 would be inappropriate, as it
would be tantamount to the court
meddling in the affairs of the
Directorate of Public Prosecutions.
[46]
There is no need for the relief sought in paragraph 5.1 of the
amended notice of motion, as it is common cause that no warrant
of
arrest has been issued pursuant to any Italian request for
applicant's extradition. It would also be premature for the court
to
pronounce upon the extraditability of applicant, as is envisaged in
the relief sought in paragraph 5.2.
[47]
As I have already found, applicant is entitled to the relief sought
in paragraphs 8.3 and 8.4 of the amended notice of motion.
The
granting thereof should suffice and there is no need for the
wide-ranging relief sought in paragraphs 8.1, 8.2, 8.5 and 8.6.
The
relief sought in paragraph 8.7, is also not required, as no warrant
has yet been issued. Similarly, the relief sought in
paragraph 9, is
not required, as the relevant notification has not yet been referred
to any magistrate. By virtue of the finding
that applicant is
entitled to relief in terms of paragraphs 8.3 and 8.4 of the amended
notice of motion, it is also unnecessary
to consider the alternative
relief sought in terms of paragraph 10.
[48]
In the light of the finding that the relief to which applicant is
entitled, is restricted to paragraphs 8.3 and 8.4 of the
amended
notice of motion, it is not necessary to adjudicate upon
respondents' application to strike out matter from applicant's
amended notice of motion and certain supplementary affidavits. Nor
is it necessary to make any finding on respondents' application
in
terms of Rule 30.
[49]
I should add that the setting aside of the decisions taken by
Ministers Surty and Radebe, does not, in my opinion, require
the
matter to be remitted for reconsideration by the Minister, with or
without directions, as envisaged by section 8 (1) (c)
(i) of PAJA.
The section 5(1) (a) notice having been set aside, the request for
the extradition of applicant, if proceeded with
by the Italian
Government, will necessarily require reconsideration in accordance
with law and no directions are required by
this court.
[50]
As regards costs, applicant as the successful party is entitled to
his costs. I agree that this is a matter which justified
the
employment of three counsel.
[51]
In the result the following order is made:
1.
The decision of second respondent taken on 23 April 2009, to issue a
notification in terms of section 5 (1) (a) of the Extradition
Act
No. 67 of 1962, in relation to applicant's extradition to Italy, is
reviewed and set aside.
2.
The decision of first respondent taken on 16 July 2009, confirming
or endorsing the second respondent's decision to issue a
notification in terms of section 5 (1) (a) of the Extradition Act
No. 67 of 1962 in relation to applicant's extradition to Italy,
is
reviewed and set aside. 3. No order is made in regard to
respondents' application to strike out, dated 23 April 2010, and
the
application pursuant to respondents' notice in terms of Rule 30 (2),
dated 23 April
2010.
4.
The first to fourth respondents are directed to pay the costs of
this application, including the costs consequent upon the
employment
of three counsel, jointly and severally, the one paying the other to
be absolved.
P
B Fourie, J
I
agree
N
J Yekiso, J
Advocate
for Applicant : Adv. J C Heunis SC
:
Adv. P F Cloete SC
:
Adv. M F Osborne
Advocate
for Respondent : Adv. I Jamie SC
:
Adv. S Van Zyl
:
Adv. N Mayosi
Attorney
for Applicant : N V Snitcher of Snitchers Attorneys
Attorney
for Respondent : A M Scott of the State Attorneys
Date
of Hearing : 18-20 May 2010
Date
of Judgment : 14 June 2010