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[2021] ZASCA 14
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Marsland v The Additional District Court Magistrate, Kempton Park and Another (162/2020) [2021] ZASCA 14; 2021 (1) SACR 454 (SCA) (10 February 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case
no: 162/2020
In the matter
between:
TIMOTHY
GORDON MARSLAND
APPELLANT
and
THE ADDITIONAL
DISTRICT COURT
MAGISTRATE,
KEMPTON PARK
FIRST
RESPONDENT
THE DIRECTOR OF
PUBLIC PROSECUTIONS,
JOHANNESBURG
SECOND
RESPONDENT
Neutral
citation:
Marsland
v The Additional District Court Magistrate, Kempton Park and Another
(162/20)
[2021] ZASCA 14
(10 February 2021)
Coram:
MAYA
P, VAN DER MERWE and MAKGOKA JJA, and EKSTEEN and POYO-DLWATI AJJA
Heard:
24
November 2020
Delivered:
This
judgment was handed down electronically by circulation to the
parties' representatives via email, publication on the Supreme
Court
of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 10:00 am on (10 February 2021).
Summary:
Extradition
– interpretation of Article 10(5) of the Southern African
Development Community Protocol on Extradition –
ss 4(1),
5(1)
(a)
and
(b)
of
the Extradition Act 67 of 1962 – direct receipt of formal
extradition documentation under s 4(1) by Minister of Justice
not
required – notification envisaged in s 5(1)
(a)
not applicable to extradition proceedings triggered by provisional
arrest under s 5(1)
(b)
.
ORDER
On
appeal from
:
Gauteng Division of the High Court, Johannesburg (Matojane and
Dippenaar JJ sitting as court of review):
The
appeal is dismissed.
JUDGMENT
Poyo-Dlwati AJA
(Maya P, Van der Merwe and Makgoka JJA and Eksteen AJA concurring)
[1]
The core issue for determination in this appeal is whether a
provisional arrest under s 5(1)
(b)
of the Extradition Act 67
of 1962 (the Act) had lapsed, for the reason that the Minister
of Justice (the Minister) neither
personally received the relevant
extradition request nor issued a notice in terms of s 5(1)
(a)
of the Act, within 30 days of the arrest.
[2]
The Republic of South Africa (South Africa) and the Republic of
Botswana (Botswana) are among the signatories
to the Southern African
Development Community Protocol on Extradition (the Protocol),
[1]
which the RSA ratified in April 2003 and came into force on 1
September 2006. The preamble of the Protocol reads as follows:
‘
We,
the Heads of State or Government of:
…
.
The Republic of
Botswana
. . .
The Republic of
South Africa
NOTING
with
concern the escalation of crime at both national and transnational
levels, and that the increased easy access to free cross
border
movement enables offenders to escape arrest, prosecution, conviction
and punishment;
CONVINCED
that
the speedy integration amongst State Parties in every area of
activity can best be achieved by seeking to create and sustain
within
the Southern African Development Community, such conditions as shall
eliminate any threat to the security of our people;
DESIRING
to
make our co-operation in the prevention and suppression of crime more
effective by concluding an agreement on extradition;
BEARING
in
mind that the establishment of a multilateral agreement on
extradition will greatly enhance the control of crime in the
Community.
. .’
[3]
South Africa and Botswana are also parties to the Extradition Treaty
(the Treaty), which they signed
in February and March 1969,
respectively. There is, therefore, well-established co-operation
between the two countries with regard
to extraditions. It was,
however, common cause before us that the Protocol, and not the
Treaty, was paramount in this case, as
Article 19 of the Protocol
provides:
‘
The
provisions of any treaty or bilateral agreement governing extradition
between any two State Parties shall be complementary to
the
provisions of this Protocol and shall be construed and applied in
harmony with this Protocol. In the event of any inconsistency,
the
provisions of this Protocol shall prevail.’
[4]
Against this backdrop, Botswana caused Interpol to issue a Red Notice
request for the provisional arrest
of the appellant, Mr Timothy
Gordon Marsland, who has dual citizenship in South Africa and the
United Kingdom, and residency in
Botswana. Consequently, on 12 July
2019 the appellant was arrested at OR Tambo International Airport
whilst
en route
to Germany. The arrest was effected through a
warrant issued by a magistrate in terms of s 5(1)
(b)
of the
Act. In the Red Notice it was alleged that the appellant had
laundered funds to the sum of BWP200 000 from Botswana Public
Officers Fund, whilst he was a director of Capital Management
Botswana, which was entrusted to manage and invest these funds. He
was also accused of attempting to obtain, by false pretences, an
amount of BPW71 000 000 from the First National Bank of Botswana.
[5]
The appellant made his first appearance before the first respondent,
the Additional District Court Magistrate,
Kempton Park on 15 July
2019. The matter was then postponed to 8 August 2019 for a bail
application. On 8 August 2019, his application
to be released on bail
was refused by the first respondent. Thereafter, the matter was
postponed to 23 August 2019 and the prosecutor,
on behalf of the
second respondent, the Director of Public Prosecutions, Johannesburg,
handed the first respondent three documents,
namely:
(a)
a
Note Verbale
from Botswana, dated 17 July 2019,
requesting the extradition of the appellant;
(b)
a letter from the Department of International Relations and
Co-operation (DIRCO), dated 19 July 2019,
addressed to the Director
General, Department of Justice and Constitutional Development (the
Department), enclosing the
Note Verbale
; and
(c)
a letter from the office of the Director General of the Department,
dated 12
August
2019, addressed to the National Director of Public Prosecutions (the
NDPP) enclosing the
Note Verbale
as received from DIRCO.
Paragraph 3 of that letter requested the NDPP to ‘kindly note
that the Department is to submit a
memorandum to the Minister,
requesting the Minister to issue a notification in terms of s 5(1)
(a)
of the Extradition Act, 1962’.
[6]
Thereafter, the second respondent made an application to the first
respondent for the matter to be transferred
to another court for
purposes of an enquiry envisaged in s 10 of the Act.
[2]
The appellant opposed that application on the ground that no
extradition application was pending before any court in South Africa.
He argued that no notification, as envisaged in s 5(1)
(a)
of the Act, had been issued by the Minister, and thus no extradition
application had been received. He contended that as the period
of 30
days contemplated in Article 10(5)
[3]
had lapsed since the arrest and no application had been received for
his extradition, his detention was unlawful. He accordingly
sought to
be released from detention.
[7]
The first respondent dismissed the application for the appellant’s
release. She found that the
application for his extradition had in
fact been received by the Minister and the second respondent prior to
the expiry of the
30 - day period referred to in Article 10(5) of the
Protocol. In her ruling, she pointed out that the appellant had
conceded that
the documents for his extradition had been received by
the second respondent. Dissatisfied with this ruling, the appellant
launched
an application in the Gauteng Division of the High Court,
Johannesburg (the high court) for the review and setting aside of the
first respondent’s decision and other incidental relief.
[8]
On 10 September 2019 the high court dismissed the application with
costs. It found that the extradition
request and the
accompanying documents were indeed received by the Minister and the
second respondent on 12 August 2019. It held
that there was no
requirement in the Protocol that the Minister must issue a s 5(1)
(a)
notice as proof of receipt of the extradition request, where the
arrest was pursuant to a warrant issued by a Magistrate in terms
of s
5(1)
(b)
of the Act. The appellant’s application for
leave to appeal to this Court was refused by the high court, but was
subsequently
granted by this Court.
[9]
The appellant contended that the provisional arrest had terminated in
terms of Article 10(5) of the
Protocol. The grounds of the
appellant’s argument before us were two-fold. First, as at 12
August 2019, the Minister had
not received the request from Botswana
for his extradition as contemplated in Article 6 of the Protocol.
Secondly, the Minister
had by that date not issued a notification in
terms of s 5(1)
(a)
of the Act to commence the extradition,
which was required even though the appellant’s arrest was
effected in terms of s
5(1)
(b)
of the Act.
[10]
The principles for interpreting documents and legislation are trite
and have been restated on numerous occasions
by this Court.
[4]
As this Court put it in
Endumeni
at
para 18:
[5]
‘
Interpretation
is the process of attributing meaning to the words in a document, be
it in legislation, some other statutory instrument,
or contract,
having regard to the context provided by reading the particular
provision or provisions in the light of the document
as a whole and
the circumstances attendant upon its coming into existence. Whatever
the nature of the document, consideration must
be given to the
language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible each possibility must be weighed in the light of all these
factors. The process is objective and not subjective.
A sensible
meaning is to be preferred to one that leads to insensible or
unbusinesslike results or undermines the apparent purpose
of the
document. Judges must be alert to, and guard against, the temptation
to substitute what they regard as reasonable, sensible
or
businesslike for the words actually used. To do so in regard to a
statute or statutory instrument is to cross the divide between
interpretation and legislation; in a contractual context it is to
make a contract for the parties other than the one they in fact
made.
The ‘inevitable point of departure is the language of the
provision itself’, read in context and having regard
to the
purpose of the provision and the background to the preparation and
production of the document.’
And,
as the Constitutional Court held in
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In re Hyundai
Motor Distributors
(Pty) Ltd and Others v Smit N O and Others and Another
,
[6]
when
construing legislation courts must promote the spirit, purport and
objects of the Bill of Rights. Wherever possible, without
straining
the language of a statutory provision, it must be given an
interpretation that is within constitutional bounds in preference
to
one that involves an infringement of constitutionally protected
rights.
[11] It
is appropriate at this stage to consider the relevant provisions of
the Act and the Protocol. These are ss 3(1),
4(1), 4(2), 5(1)
(a),
5(1)
(b)
and 8 of the Act, which must be read together with
Articles 6 and 10(5)
(a)
of the Protocol.
[12]
Section 3(1) of the Act provides for one of three grounds upon which
a person may be extradited from this country.
[7]
It reads:
‘
Any
person accused or convicted of an offence included in an extradition
agreement and committed within the jurisdiction of a foreign
State a
party to such agreement, shall, subject to the provisions of this
Act, be liable to be surrendered to such State in accordance
with the
terms of such agreement, whether or not the offence was committed
before or after the commencement of this Act or before
or after the
date upon which the agreement comes into operation and whether or not
a court in the Republic has jurisdiction to
try such person for such
offence.’
[13]
Section 4(1) of the Act on the hand provides:
‘
Subject
to the terms of any extradition agreement any request for the
surrender of any person to a foreign State shall be made to
the
Minister by a person recognised by the Minister as a diplomatic or
consular representative of that State or by any Minister
of that
State communicating with the Minister through diplomatic channels
existing between the Republic and such State.’
On the other hand, s
4(2) provides that any such request received in terms of an
extradition agreement by any person other than
the Minister, shall be
handed to the Minister.
Article 6 provides
for a method by which the request for extradition shall be made. It
reads:
‘
A
request for extradition shall be made in writing. The request,
supporting documents and subsequent communications shall be
transmitted
through the diplomatic channel, directly between the
Ministries of Justice or any other authority designated by the State
Parties.’
[14]
Section 5(1
)(a)
of the Act provides:
‘
Any
magistrate may, irrespective of the whereabouts or suspected
whereabouts of the person to be arrested, issue a warrant for the
arrest of any person upon receipt of a notification from the Minister
to the effect that a request for the surrender of such person
to a
foreign State has been received by the Minister.’
Section
5(1)
(b)
on the other hand provides that:
‘
Any
magistrate may, irrespective of the whereabouts or suspected
whereabouts of the person to be arrested, issue a warrant for the
arrest of any person upon such information of his or her being a
person accused or convicted of an extraditable offence committed
within the jurisdiction of a foreign State, as would in the opinion
of the Magistrate justify the issue of a warrant for the arrest
of
such person, had it been alleged that he or she committed an offence
in the Republic.’
[15] It
is necessary to examine in some detail the three documents that were
handed to the first respondent in court
on 23 August 2019. The
Note
Verbale
No. 164/2019 FS from Botswana reads:
‘
The
High Commission of the Republic of Botswana presents its compliments
to the Department of International Relations and Co-operation
of the
Republic of South Africa and has the honour to submit a request for
an extradition of Timothy Gordon Marsland. The esteemed
Department is
further requested to transmit the enclosed dossier to the relevant
South African Authorities. The High Commission
of the Republic of
Botswana avails itself of this opportunity to renew to the Department
of International Relations and Co-operation
of the Republic of South
Africa the assurances of its highest consideration.’
The document was
received by DIRCO on 17 July 2019 in line with the common cause fact
that DIRCO deals mostly with international
relations as well as
diplomatic matters between the RSA and other countries.
[16] As
I have pointed out, the second document was a letter from DIRCO to
the Director General of the Department, dated
19 July 2019, which
simply enclosed the
Note Verbale
and requested that the
documents be forwarded to the relevant authorities. The third
document was also a letter from the office
of the Director General
enclosing the
Note Verbale
and indicating the Department’s
intention to submit a memorandum to the Minister, requesting him to
issue a notification
in terms s 5(1)
(a)
of the Act.
[17] The
Note Verbale
constituted a request by Botswana for the
extradition of the appellant, as envisaged in the Act and the
Protocol. A dossier was
attached to it with a request that it be
handed over to the relevant department. In accordance with Article 6,
the request was
in writing. The request and the supporting documents
were received by DIRCO and forwarded to the Director General of the
Department.
Thus, the request was ‘transmitted through the
diplomatic channel’ and received by the Ministry of Justice, as
required
by Article 6.
[18]
There is no substance, therefore, in the appellant’s argument
that the request for his extradition had not
been properly received
as at 12 August 2019. It was submitted on behalf of the appellant
that the request had to be received by
the Minister directly. For
that interpretation to be accepted, one would have to ignore the
words ‘diplomatic channel’
and ‘Ministries’
in Article 6 of the Protocol, as well as the context in which those
words were used. Needless to say,
this would not yield a sensible
meaning. The Oxford Dictionary describes ‘ministry’ as
(in certain countries) ‘a
government department headed by a
Minister’. This meaning of the word ‘ministry’ puts
to bed the argument that
the request had to be received directly by
the Minister.
[19] As
I have said, it was further argued on behalf of the appellant that a
s 5(1)
(a)
notice had to be issued by the Minister, as evidence
that a request for the extradition of the appellant had been
received. There
is no merit in this argument either, as the
appellant’s arrest was effected in terms of s 5(1)
(b)
of
the Act. Section 5(1)
(a)
and s 5(1)
(b)
provide
for two separate procedures for the arrest of a person sought to be
extradited. This is clearly evidenced by the disjunctive
‘or’
between the subsections. An arrest, therefore, can be either in terms
of s 5(1)
(a)
or
(b)
and the requirements of the one are
not applicable to the other.
[20]
It was further submitted on behalf of the appellant that the letter
dated 12 August 2019 from the Director General
of the Department to
the NDPP
[8]
was confirmation that the Department knew that the Minister had to
issue a s 5(1)
(a)
notice before any extradition process could commence. For this
submission, reliance was placed upon
Palazzolo
v Minister of Justice and Constitutional Development and Others.
[9]
However, that submission was misplaced as the court in
Palazzolo
made
it clear that the Act does not oblige the Minister to issue a notice
in terms of s 5(1)
(a)
.
[10]
As I have demonstrated, such a notice is not applicable when the
arrest has been effected in terms of s 5(1)
(b)
.
[21]
Lastly, it was submitted that in the absence of a requirement that a
notice be issued by the Minister, the provisional
arrest process
could be subject to abuse. It was contended that the police could
willy-nilly arrest people under the pretext that
they would be
extradited, and thereafter leave them to languish in prisons with no
extradition proceedings being put in motion.
However, this argument
ignores the provisions of s 8 of the Act, which enjoin the
magistrate, after issuing a warrant for the arrest
or further
detention of a fugitive, to immediately furnish the Minister with the
particulars relating to the issue of such warrant.
The Minister may
at any time thereafter, in the case where the warrant has not yet
been executed, direct the magistrate concerned
to cancel the warrant.
In the case where the warrant has been executed, he may direct that
the arrested person be discharged forthwith.
In my view, these are
sufficient safeguards against the postulated abuse.
[22]
In the circumstances, the appeal must fail. Despite the appellant’s
unsuccessful challenge in asserting his
right to freedom, he ought
not to be mulcted with a costs order in line with the principles
enunciated in
Biowatch
Trust
.
[11]
The
following order is made:
The appeal is
dismissed with no order as to costs.
T P POYO-DLWATI
ACTING JUDGE OF
APPEAL
APPEARANCES
For
Appellant:
C E Thompson
Instructed
by:
Bernard
L Du Plessis Incorporated, Johannesburg
Symington
De Kok Attorneys, Bloemfontein
For
Respondent:
D Barnard (with P Schutte)
Instructed
by:
State
Attorney, Johannesburg
State
Attorney, Bloemfontein
[1]
Signed by the Republics of South
Africa and Botswana on 3 October 2002 in Luanda, Angola and agreed
upon also by the Republics
of Angola, Malawi, Mauritius, Mozambique,
Namibia, Seychelles, Zambia and Zimbabwe, the Democratic Republic of
the Congo, the
Kingdoms of Lesotho and Swaziland, and the United
Republic of Tanzania.
[2]
Section 10(1)
of the Act provides, ‘if upon consideration of the evidence
adduced at the enquiry referred to in ss
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’.
[3]
Article 10(5) of the Protocol
provides:
‘
Provisional
arrest shall be terminated if the Requested State has not received
the request for extradition and supporting documents
through the
channel provided for in Article 6 within thirty (30) days after the
arrest. The competent authorities of the Requested
State, in so far
as it is permitted by the law of that State, may extend that delay
with regard to the receipt of the documents.
However, the person
sought may be granted bail at any time subject to the conditions
considered necessary to ensure that the
person does not leave the
country; and
The provision
of paragraph (a) shall be without prejudice to the right of the
person so arrested to be released in accordance
with the domestic
law of the Requested State.’
[4]
See
Natal
Joint Municipality Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
2012 (4) SA 593
(SCA) para 18.
[5]
See fn 4.
[6]
Investigating Directorate:
Serious Economic Offences and Others
v
Hyundai Motor Distributors (Pty) Ltd and Others: In re Hyundai Motor
Distributors (Pty) Ltd and Others v Smit N O and Others
[2000] ZACC
12
;
2000 (1) SA 515
(CC) para 21 to 26.
[7]
S
ections
3(2) and (3) of the Act are not applicable. Section 3(2) provides
for an extradition to a foreign State where there is
no extradition
agreement but the President has consented in writing to such
extradition, whilst s 3(3) provides for an extradition
to a
designated State regardless of whether the offence was committed
before or after the designation of such State and whether
or not a
court in the Republic had jurisdiction to try such person for such
offence.
[8]
See para 5
above.
[9]
Palazzolo
v Minister of Justice and Constitutional Development and Others
[2010]
ZAWCHC
422.
[10]
Ibid para 16.
[11]
Biowatch
Trust v Registrar Genetic Resources and Others
2009 (6) SA
232
(CC).