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[2021] ZASCA 119
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Kouwenhoven v Minister of Police and Others (888/2020) [2021] ZASCA 119 (22 September 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no:888/2020
In the matter between:
AUGUSTINUS PETRUS MARIA
KOUWENHOVEN
APPELLANT
and
THE MINISTER OF
POLICE
FIRST RESPONDENT
THE DIRECTOR OF PUBLIC
PROSECUTIONS
(WESTERN
CAPE)
SECOND
RESPONDENT
THE MINISTER OF JUSTICE
AND
CORRECTIONAL
SERVICES
THIRD RESPONDENT
THE MAGISTRATE:
PRETORIA
FOURTH RESPONDENT
THE MAGISTRATE: CAPE
TOWN
FIFTH RESPONDENT
Neutral citation:
Kouwenhoven v Minister of Police and
Others
(888/2020)
[2021] ZASCA 119
(22
September 2021)
Coram:
PONNAN, WALLIS, SCHIPPERS and HUGHES JJA and
KGOELE AJA
Heard
:
27 August 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication
on the Supreme
Court of Appeal website and release to SAFLII. The date and time for
hand-down is deemed to be 09h45 on 22 September
2021
Summary:
Extradition Act
67 of 1962 –
validity of arrest in terms of s 5(1)(
b
) of the Act –
whether officials gave an undertaking not to arrest the appellant –
whether any such undertaking was
capable of binding the State –
whether undertaking invalidates an arrest pursuant to an otherwise
valid warrant.
Affidavit in support of
application for issue of a warrant of arrest in terms of s 5(1)(
b
)
of Act – attested before another policeman employed in the same
bureau – Regulation 7 of Regulation governing the
administering
of an oath or affirmation under the Justices of the Peace and
Commissioners of Oaths Act 16 of 1963 – whether
oath properly
administered.
Whether magistrate applied
her mind to issue of warrant or 'rubber- stamped' it – failure
to notify the Minister of Justice
of issue of warrant in terms of
s 8(1) of the Act – effect.
ORDER
On
appeal from:
Western Cape Division of
the High Court, Cape Town (Cloete J, Fortuin J concurring, sitting as
court of first instance):
The appeal is
dismissed with costs, such costs to include the costs of two counsel
in respect of both the first respondent and the
second and third
respondents.
Judgment
reported
sub nom Kouwenhoven v Minister of Police and Others
[2019] 4 All SA 768
(WCC);
2021 (1) SACR 167
(WCC).
JUDGMENT
Wallis JA (Ponnan,
Schippers and Hughes JJA and Kgoele AJA concurring)
[1]
Mr Kouwenhoven, the appellant, is a Dutch
citizen, at present resident in Cape Town and a businessman who
formerly had significant
business interests in Liberia. On 21 April
2017 he was convicted by the Court of Appeal of ‘s-Hertogenbosch
of repeatedly
committing the offence of complicity in war crimes, and
repeatedly violating the Dutch Sanctions Act, arising out of his
involvement
in the civil war in Liberia that raged between 1997 and
2003 and led to the downfall of the then President of Liberia,
Charles
Taylor.
[1]
Mr Kouwenhoven was sentenced to serve a term of imprisonment of 19
years and his conviction and sentence have been upheld by the
Supreme
Court of the Netherlands.
[2]
The present litigation arises from his endeavours to resist the
attempts of the Dutch government to secure his extradition from
this
country to serve his sentence in the Netherlands. This appeal was
heard simultaneously with a related appeal in a case flowing
from
events occurring subsequent to and in consequence of the high court's
decision in the present case.
[3]
Judgment in that matter will be delivered at the same time as this
judgment.
[4]
[2]
On 8 December 2017, Mr Kouwenhoven was
arrested pursuant to a warrant of arrest issued, in terms of
s 5(1)(
b
)
of the Extradition Act
67 of 1962 (the Act),
by
an unidentified magistrate in Pretoria
. He was brought before
a magistrate in Cape Town and released on bail on 19 December
2017. On 31 January 2018 he launched
the present review proceedings
against the Minister of Police as first respondent; the Director of
Public Prosecutions (Western
Cape)(the DPP), as second respondent;
the Minister of Justice and Correctional Services (the Minister of
Justice), as third respondent;
the Pretoria magistrate as
the
fourth respondent;
and an unidentified magistrate in Cape Town
who was appointed to conduct an extradition enquiry in terms of s 9
of the Act,
as fifth respondent.
[3]
The aim of the review was to obtain declaratory orders that
the decision to arrest him and the arrest itself had been unlawful
and
that the conduct of the extradition enquiry was unlawful and
invalid. The relief underwent some minor amendment in the course of
proceedings and in its final form read as follows:
‘
1.
Declaring that the Applicant has been brought unlawfully before the
Fifth Respondent, and that any future appearance before the
Fifth
Respondent and any consequences thereof in relation to the
proceedings arising from his arrest of 8 December 2017 are unlawful
and invalid.
2.
2.1.
Declaring that the decision to issue the warrant for the arrest of
the Applicant . . . issued by the Fourth Respondent on 6
December
2017 in terms of section 5(1)(
b
) of the Extradition Act . . .
was unlawful and invalid;
2.2.
Declaring that the warrant is unlawful and invalid;
2.3. The
warrant is reviewed and set aside.
3. Declaring
that the decision to arrest and the arrest of the Applicant on 8
December 2017 was:
3.1.
Inconsistent with the Constitution . . .;
3.2. Unlawful
and invalid.
4. The arrest
and/or detention of the Applicant during the following periods is
declared to be unlawful and unconstitutional;
4.1. From 8
December 2017 until 18 January 2018; and
4.2. From 18
January 2018 until the date of judgment in this application.
5. . . .
6.
6.1.
Declaring that the Third Respondent’s decision to issue the
‘
notification
by the Minister of Justice and
Correctional Services under Section 5(1)(
a
) of the Extradition
Act . . . in relation to the Applicant, dated 22 February 2018 . . .
was unlawful and invalid.’
[4]
The review was opposed jointly by the two
Ministers and the DPP, but the magistrates abided the decision of the
court. It was heard
by a full bench consisting of Fortuin and Cloete
JJ and dismissed on 19 September 2019 in a judgment by
Cloete J. Leave
to appeal was refused, but it was subsequently
granted by this court.
The
background
[5]
The relationship between South Africa and
the Kingdom of the Netherlands in regard to extradition is governed
by the European Convention
on Extradition (the Convention). Under
Article 12 it provides for requests for extradition and under Article
16(1) for requests
for the provisional arrest of the person sought to
be extradited. Article 16 provides that:
'
In
case of urgency the competent authorities of the requesting Party may
request the provisional arrest of the person sought. The
competent
authorities of the requested Party shall decide the matter in
accordance with its law.'
A provisional
arrest, if sought and granted, is sufficient to set the stage for an
extradition enquiry in terms of s 9(1) of
the Act, but the
arrest falls away if a request for extradition is not forthcoming
within time limits specified in Article 16.
However, once the request
for extradition is received, no further arrest is necessary and the
extradition enquiry proceeds to determine
whether the person in
question qualifies for extradition.
[6]
The warrant of arrest issued by the fourth
respondent was issued after receipt of a request for Mr Kouwenhoven's
provisional arrest
on 22 August 2017. An earlier request
for his extradition received on 7 July 2017 and a request
for his provisional
arrest received on 21 July 2017, had
been returned as not being in accordance with the requirements of the
Convention
and the Act. The warrant was issued on the basis of an
affidavit sworn by Warrant Officer van der Heever of the Pretoria
National
Central Bureau of Interpol (Bureau). He is one of two police
officers stationed at the Bureau dealing with extradition matters.
Other desks deal with drugs, fraud and general matters.
[7]
The issues have undergone some refinement
and four grounds for invalidity of the warrant and the arrest remain
and were pursued
in this court. Chronologically they were that:
(a)
In May 2017 Mr Kouwenhoven's attorney, Mr Eisenberg, spoke
separately to W.O. van der
Heever and Mr van Heerden, the
Principal State Law Advisor, International Legal Relations in the
Department of Justice and Constitutional
Development. It was
contended that in these telephone conversations the relevant
authorities separately and independently undertook
that Mr
Kouwenhoven would not be arrested pursuant to a provisional request
under Article 16(1) and would be afforded prior notice
before action
was taken against him. It was alleged that these undertakings created
a right, or at least a legitimate expectation,
that the authorities
were obliged in law to honour. Their breach rendered his arrest and
all proceedings consequent thereupon invalid
and unlawful.
(b) The
affidavit of W.O. van der Heever was improperly attested before a
colleague of his at the Bureau, Sergeant von Hagen, and
was therefore
invalid. This rendered the issue of the warrant invalid as it was not
based on any evidence.
(c) The
magistrate who issued the warrant did not apply her mind to whether
the warrant should properly be issued, but instead 'rubber-
stamped'
it and this rendered it invalid.
(d) After
issuing the warrant the magistrate did not comply with her obligation
in terms of s 8 of the Act to furnish the Minister
of Justice
with particulars relating to the warrant and this rendered it
invalid.
On the
basis that the issue of the warrant and Mr Kouwenhoven's arrest were
unlawful on one or more of these grounds, it was contended
that the
entire process was invalid and he could not properly have been
brought before the fifth respondent for the purpose of
an extradition
enquiry in terms of the Act.
[5]
[8]
An entirely separate issue arose from the then Minister of
Justice issuing a notification under s 5(1)(
a
) of the Act
on 22 February 2018. That section provided that the magistrate to
whom such a notification was sent was obliged to
issue a warrant for
the arrest of the person whose extradition was sought in order for
them to be brought before a magistrate under
s 9 of the Act. A
number of factual and legal arguments were advanced in relation to
the validity of this notification. However,
whatever the relevance of
the point at an earlier stage of these proceedings, by the time it
reached this court it was entirely
academic. Not only had no warrant
been issued in terms of the notification, but the Constitutional
Court had declared s 5(1)(
a
) invalid with immediate
effect.
[6]
[9]
In his supplementary founding affidavit Mr Kouwenhoven
said that the issuing of this notice 'makes no sense whatsoever'.
That was plainly correct. Nonetheless, he persisted with the argument
that the notice should be declared invalid on two grounds.
The first
was that if the arrest in issue in this case were set aside the
Minister might seek to trigger a further arrest by sending
his
notification to an appropriate magistrate. That contention was
far-fetched, given that the section, and therefore the power
of the
magistrate to act on the notification, has been declared to be
unconstitutional. No magistrate would issue a warrant in
the face of
that decision. The second ground was a contention that Mr Kouwenhoven
was entitled to know whether the Minister's actions
were
unconstitutional. Two judgments were cited in support of this
proposition.
[7]
Neither was in point. The first,
Pheko
in the Constitutional
Court, required a decision on the merits in order to determine
whether the applicants were entitled to appropriate
restitutionary
relief. The second,
Buthelezi
in this court, was concerned
with the issue of undue delay in the issue of visas and was a matter
likely to arise again in the future.
The arguments arising from the
Minister's actions under s 5(1)(a) were plainly moot and it is
unnecessary to say any more
about them.
[10]
Before turning to the separate grounds upon
which Mr Kouwenhoven challenged the validity of his arrest it is
necessary to say
something about the onus of proof and the approach
the court must take to disputes of fact on the papers. It is trite
that an arrest
without a warrant is an interference with liberty and
that the onus rests on the arrestor to justify it.
[8]
Where an arrest takes place in terms of a warrant a judicial act has
intervened and unless the validity of that judicial act can
be
assailed the existence of the warrant justifies the lawfulness of the
arrest. The police officer in possession of a warrant
of arrest is
not obliged, over and above producing the warrant and showing that
they acted in terms of it, to prove that the warrant
was validly
issued. It is for the party challenging the warrant to show why it
should be set aside. That is why these proceedings
were brought by
way of judicial review. Contrary to Mr Kouwenhoven's heads of
argument, they are not proceedings by way of
habeas
corpus
. The analogy counsel sought to
draw between these proceedings and an arrest in admiralty is also not
apt. In admiralty the onus
of justifying the arrest remains
throughout on the applicant for the arrest, irrespective of the form
of the proceedings in which
the arrest is challenged. The
Plascon-Evans rule is applied to determine whether the undisputed
evidence on behalf of the applicant
for arrest, when taken together
with the respondent's evidence, discharges the onus. If it does not
it is always open to the applicant
to seek a reference to oral
evidence, but given the nature of admiralty proceedings it is unusual
for courts to accede to such
a request. Here the justification for
the arrest lies in the existence of the warrant and it is the
challenge to the warrant that
is relevant. On that the onus rested on
Mr Kouwenhoven. Even had the onus rested on the respondents that
would not have affected
matters, because the case would still have
had to be decided on the basis of the undisputed evidence of Mr
Kouwenhoven, read together
with the respondents' version.
[9]
The undertaking issue
[11]
On 2 May 2017, Mr Eisenberg spoke on the
telephone to W.O. van der Heever. The following day he
spoke to Mr van Heerden.
After these conversations he wrote to W.O.
van der Heever and Mr van Heerden. The founding
affidavit relied
on these letters in support of an allegation that
each of Mr van Heerden and W.O. van der Heever had given 'a clear and
unequivocal
undertaking' that Mr Kouwenhoven 'would not be
arrested on the basis of any provisional arrest warrant or without
notice'.
The heads of argument characterised this as a
binding
agreement between him and the South African authorities,
alternatively a non-binding undertaking by the authorities that
had
to be observed in accordance with Constitutional norms.
[12]
The underlying premise of these contentions was that, if
such an undertaking was given, its breach invalidated the warrant
and
Mr Kouwenhoven's arrest pursuant thereto. The heads of argument
were drafted on the footing that an undertaking had been
given and
breached. They examined whether the claim that Mr Kouwenhoven
had become a flight risk was a legitimate reason for
the breach. A
separate argument that the issue of the warrant was invalidated by
non-disclosure of the undertakings to the Pretoria
magistrate was not
pursued. My prima facie view is that the premise is faulty. The issue
of a warrant is a judicial act authorising
an arrest. The magistrate
was not party to any undertakings and if the magistrate concluded on
the papers that a proper case was
made for the issue of a warrant, I
do not see why that decision would be invalidated by the fact that
the two officials were acting
in breach of an undertaking. They would
not be acting in good faith, but 'the worst motive does not render an
otherwise lawful
arrest unlawful'.
[10]
Given the conclusion to which I come on the factual basis for these
contentions it is, however, unnecessary to say more on this
aspect of
the case.
[13]
To place these conversations and the
correspondence that followed in context, they occurred less than two
weeks after Mr Kouwenhoven's
conviction and sentence. No request for
his extradition, or provisional arrest, had been received from the
Netherlands, although
the Bureau had received an Interpol Red Notice
for assistance in securing his arrest. That indicated that the Dutch
authorities
intended to apply for Mr Kouwenhoven's extradition
and would be seeking a provisional arrest in conformity with national
laws
and applicable treaties. The conversations involved different
people and were entirely separate from one another. Any agreements
reached or undertakings given were reached or given separately. They
cannot be treated cumulatively
[14]
Mr Eisenberg had not previously met
or communicated with W.O. van der Heever when he spoke to him on
2 May 2017. Later that
day he wrote as follows:
'
If
I may, let me confirm your advices of this morning:
(i)
An INTERPOL "Red Notice" has already been posted for our
client, Mr Gus Kouwenhoven;
(ii)
Our client has no intention whatsoever of departing the Republic of
South Africa until the present matter is fully resolved;
(iii)
You have already received a Provisional Request from the authorities
of The Netherlands for the arrest of our client;
(iv)
You have advised the Dutch authorities that the South African
prosecutorial and police authorities will not be acting on their
Provisional Request but a formal request for our client’s
extradition to The Netherlands has been made and is expected within
the next number of months;
(v)
Our client shall not be arrested pursuant to the Provisional Request
or in the normal course but proper and dignified arrangements
for
handing our client over for our client’s first appearance on
the basis of such formal request will be made between us.'
In oral
argument counsel submitted that the undertaking was contained in the
final paragraph of this letter.
[15]
Did this letter on its terms embody an
agreement or undertaking as alleged? In my view it did not. It made
no reference to an agreement
or undertaking. Nor did it ask for
confirmation that an agreement had been reached or an undertaking
given. The first item confirmed
a matter of fact and the second
involved a statement by Mr Eisenberg of his client's alleged
attitude. It is common cause that
the third paragraph was incorrect
as a matter of fact, because no such request had been received. There
appears to have been some
miscommunication between Mr Eisenberg and
W.O. van der Heever in this regard. The Interpol Red Notice
under a heading 'Action
to be Taken' recorded that the Dutch
authorities wanted Mr Kouwenhoven to be arrested as his extradition
was to be sought. The
notice went on to say that:
'This
request is to be treated as a formal request for provisional arrest,
in conformity with national laws and/or the applicable
bilateral and
multilateral treaties.'
If Mr
Eisenberg thought that Interpol in the Netherlands represented the
Dutch authorities, then from the perspective of a possible
extradition this was mistaken. It seems probable that he construed
W.O. van der Heever's reference to the Interpol notice as a
request
from the Dutch authorities, possibly via Interpol. As W.O. van
der Heever had not been in touch with the Dutch authorities
in
regard to a request for extradition and such requests are routed
through the Department of International Relations and Co-operation
via the Department of Justice and Correctional Services he could not
have been referring to a request from the Dutch authorities
in
relation to extradition.
[16]
The following paragraph built upon
this. There had been no direct communication between W.O. van der
Heever and the Dutch authorities.
He explained in his affidavit that
he had told Interpol in The Hague that it would be best to wait for
the Netherlands request
for extradition rather than seek Mr
Kouwenhoven's arrest on a provisional basis, because that would
facilitate the extradition
and there did not appear to be any
evidence of urgency at the time. This was not challenged in
Mr Kouwenhoven's replying affidavit.
In those circumstances it
was undoubtedly the case that at that time W.O. van der Heever was
not intending to seek Mr Kouwenhoven's
immediate arrest on the basis
of the Interpol Red Notice and he said that this was what he told Mr
Eisenberg.
[17]
The fact that W.O. van der
Heever told Mr Eisenberg that this was the factual position at the
time of their conversation did not
translate into an agreement or
undertaking not to arrest Mr Kouwenhoven if a proper request for
his provisional arrest in
terms of Article 16 of the Convention was
received. Nor could it be construed as an undertaking that he would
not be arrested if
such a request was received.
[18]
Mr Eisenberg's affidavit in support
of the application took the matter no further. Concerning his
conversation with W.O. van der Heever,
he gave no evidence
that would have put a different gloss on the conversation and the
letter. All he did was assert that an undertaking
was given, but that
was a conclusion that could be drawn only if a full description of
the purpose, nature and contents of their
discussion had been given.
None was. He filed a further affidavit together with Mr Kouwenhoven's
replying affidavit and at a time
when he knew what W.O. van der
Heever had to say. Even then he did not deny the accuracy of the
latter's recollection of their
conversation. The furthest he was
willing to go was to say that his approach 'was serious and formal in
nature' and that it 'should
have been apparent to W.O. van der
Heever that I sought to conclude a binding arrangement with him'. It
is not good enough
to say that someone should have realised that a
binding arrangement – one enforceable in a court of law –
was being
sought. That had to be stated in the conversation and then
confirmed expressly in the letter. That was not done.
[19]
There can be little doubt that if Mr
Eisenberg had told W.O. van der Heever that he was not
merely in search of information,
but was seeking to conclude an
agreement, or extract an undertaking, that his client would not be
arrested if the Dutch extradition
authorities asked for his
provisional arrest, the entire tenor of the conversation would have
been different. Both parties were
aware that an application for
extradition was likely to be made. Both knew that in order to
commence an extradition enquiry Mr Kouwenhoven
would have to be
arrested in terms of s 5 of the Act. A request by Mr Eisenberg
that W.O. van der Heever would not act
upon a proper request by
the Dutch extradition authorities for Mr Kouwenhoven's provisional
arrest in terms of the Convention would
have been extremely
far-reaching. It is impossible to conceive of an experienced police
officer agreeing to it in a telephone conversation
with an attorney
who was unknown to him. At the very least a court would require
convincing and direct evidence of the contents
of the conversation
before accepting that the police officer had concluded such an
agreement or furnished such an undertaking.
There is no such
evidence, because Mr Eisenberg did not provide it.
[20]
Strictly speaking that conclusion renders
it unnecessary to consider whether such an agreement or undertaking
could ever be treated
as binding. However, it is appropriate to
express my reservations concerning the proposition that an official
such as W.O. van
der Heever had authority to conclude such an
agreement, or give such an undertaking. Extradition between the
Netherlands and South
Africa is a matter of diplomatic relations
between the two states governed by a formal convention. There can be
no doubt that the
Convention has 'become law' in South Africa.
[11]
No authority was cited for the proposition that a police officer,
charged with the responsibility of implementing requests in terms
of
the Convention, is entitled to conclude agreements or give
undertakings that would bind the South African government to
disregard
a valid request for a person's provisional arrest under the
Convention. I am not here speaking of the exercise of a discretion in
the exercise of his lawful duties in relation to a request under the
Convention, such as determining precisely when and how an
arrest is
to be effected, but of an agreement or undertaking that would
preclude him and the State from acting in terms of the
Convention. At
the end of the argument, I remained unconvinced that any such
authority vested in W.O. van der Heever.
[21]
I turn then to the alleged agreement with,
or undertaking furnished by, Mr van Heerden. On the same
day as Mr Eisenberg's
conversation with W.O. van der Heever,
Mr Kouwenhoven's senior counsel, Mr Katz SC, spoke to Mr
van Heerden.
The founding affidavit placed no reliance on this
conversation, no doubt because it was apparent that Mr Katz
would thereby
be rendered a potential witness. In terms of the rules
governing the advocates' profession that would have required him to
withdraw
and not act in the litigation. In an endeavour to circumvent
the problem, Mr Eisenberg, spoke to Mr van Heerden on the following
day.
[12]
After he had done so he sent the following letter:
'
Let
me confirm your advices of this morning, and as you have conveyed
this to advocate Anton Katz SC:
(i) It is
correct that an INTERPOL ‘Red Notice’ has been issued and
posted for our client, Mr Guus Kouwenhoven;
(ii) While
you have
not
(contrary to the advices of Warrant Officer
Wimpie van der Heever, INTERPOL) received a Provisional Request for
our client’s
arrest for extradition, you have received an email
from the Dutch Police Liaison Officer for Southern Africa advising
you that
our client was sentenced to 19 years in Holland (in
absentia);
(iii) You
have consulted with INTERPOL and have reached an agreement that our
client will not be arrested should you receive a Request
for
Provisional arrest’
(iv) You
understand that the Dutch authorities are busy with the drafting of
an Extradition Request and you will advise either advocate
Katz or
myself once you have received such a request;
(v) I
reiterate that if you receive a compliant Extradition Request from
the Dutch authorities arrangements for handing our client
over for
his first appearance on the basis of such Request will first be made
between us, especially in light of our client’s
age and medical
condition.'
In oral
argument counsel relied on the third and fifth paragraphs of this
letter in support of the alleged agreement or undertaking.
[22]
Reliance was also placed on an email Mr van Heerden sent on
29 June 2017 to Mr Eisenberg, informing him that an electronic
copy of an extradition request and request for the provisional arrest
of Mr Kouwenhoven had been received and the original would
be
forwarded through diplomatic channels. Mr Eisenberg responded
the same day as follows:
‘
On the
basis of our communications let me confirm with you the following:
(i) A
decision has been made by the South African authorities, including
the Department of Justice and SAPS, that a Provisional
Request for
the arrest of our client Mr Guus Kouwenhoven, will not be
entertained.
(ii) . . .
(iii) Based
on my brief discussion with yourself this afternoon, it is unlikely
that an Extradition Request, fully compliant with
the formalities,
will be received from the Dutch authorities prior to 27 July 2017.’
Manifestly
this letter added nothing to the enquiry. If an agreement had been
concluded, or an undertaking given, on 3 May
2017 this letter
did not alter it. If no agreement was concluded and no undertaking
given, this letter did not create one. It referred
to a decision
taken by the South African authorities, not to an agreement with, or
an undertaking given to, Mr Kouwenhoven. Even
assuming in the
latter's favour that such a decision had been taken – something
that was disputed – there was nothing
to stop the South African
authorities from changing their minds. No right or expectation by Mr
Kouwenhoven would be affected thereby.
[23]
Whether the letters of 2 and 3 May 2017 could serve as proof
of either an agreement or the furnishing of an undertaking by either
W.O. van der Heever or Mr van Heerden is
doubtful. Mr Kouwenhoven deposed to the founding affidavit, but he
had not been a party to either conversation. Mr Eisenberg deposed to
a supporting affidavit (which we were told in the practice
note need
not be read) in which he gave no details of the conversations he had
with either W.O. van der Heever or Mr van Heerden.
He purported to
confirm that he received undertakings that Mr Kouwenhoven would not
be arrested pursuant to any provisional request
for his arrest and
would not be arrested without notice to his legal representatives.
This took the matter no further. When Mr
Eisenberg delivered an
affidavit together with the replying affidavit, he said that he was
confirming the replying affidavit and
the descriptions in that
affidavit of the telephone discussions that he had with the two
officials But those 'descriptions' added
nothing to the founding
affidavit. Mr Kouwenhoven said in regard to the conversation
with Mr van Heerden that the
letter made it plain that it
was confirming the conversation in question. But that merely throws
one back on the letter as the
only evidence proffered in support of
the alleged agreement or undertaking. It is entirely lacking in any
detail as to the terms
of the two conversations or how they were said
to give rise to an agreement or undertaking.
[24]
Like the letter to W.O. van der Heever the letter to
Mr van Heerden does not refer to an agreement or an
undertaking.
Nor did it seek confirmation of an agreement or
undertaking. It referred to the earlier conversation between Mr Katz
and Mr van
Heerden, but neither Mr Katz nor Mr Eisenberg deposed to
an affidavit saying that they asked Mr van Heerden to enter into an
agreement
or give an undertaking. Mr Eisenberg's affidavit was
silent on the point. On the face of it these conversations were
merely
seeking information on behalf of their client and were not
directed at concluding agreements or obtaining undertakings. Had
those
been proffered the letters would have been couched in markedly
different terms.
[25]
The two passages on which counsel relied
were even less indicative of an agreement having been reached between
Mr Eisenberg and
Mr van Heerden, or an undertaking having been given,
than the passage relied on in the other letter. The statement that Mr
van
Heerden had consulted 'with INTERPOL' – a reference to W.O.
van der Heever – and that the two of them had agreed not
to
arrest Mr Kouwenhoven if they received a request for a provisional
arrest, even if correct, would not amount to an agreement
with Mr
Kouwenhoven, or an undertaking to him. It would merely reflect the
current thinking of the two officials without any indication
that,
when, and if, a request for a provisional arrest was made, they would
decline to act upon it. There appears to have been
an assumption at
the time that a formal request for Mr Kouwenhoven's extradition was
imminent and that matters would then proceed
on the basis of that
application. As it happened, that is what occurred because a request
for extradition was received on 7 July
2017, but returned
because it did not comply with the provisions of the Act. It was only
thereafter that a request was made for
a provisional arrest on
21 July and that too was returned as non-compliant with the
requirements for a provisional arrest.
A compliant request was only
received on 22 August 2017.
[26]
The dispute over a provisional arrest under
Article 16 of the Convention, as opposed to an arrest pursuant to an
extradition request
under Article 12, was largely academic. As
pointed out earlier, provided a formal request for extradition is
timeously received,
there is no need in order to hold an extradition
enquiry under s 9 of the Act, for a person arrested under
Article 16 to be
re-arrested. The enquiry proceeds on the basis of
the initial arrest. Provided a request for extradition was
forthcoming Mr Kouwenhoven's
arrest was inevitable. At most the
enquiries to W.O. van der Heever and Mr van Heerden could have been
directed at forestalling
the need to prepare a bail application as a
matter of urgency. Reference to the papers in the bail application
reveal that it was
in fact prepared well in advance, probably around
12 June 2017, which was the date on a report about prison conditions,
commissioned
especially for the purpose of the bail application. The
founding affidavit in the bail application was signed four and a half
hours
after Mr Kouwenhoven's arrest and ran to 37 pages and 135
paragraphs, with a number of medical reports and the report on prison
conditions annexed.
[27]
There is no need to repeat what was said in
para 19 about the reaction of W.O. van der Heever to any direct
request to agree not
to arrest Mr Kouwenhoven, or to give an
undertaking not to do so. The same improbability of an agreement
being concluded or an
undertaking given, applied equally in the case
of Mr van Heerden. So do my reservations about the authority to
conclude an agreement,
or give an undertaking. In my view, as with
the earlier letter the one addressed to Mr van Heerden does not on
its terms support
the claim of an agreement or an undertaking not to
arrest Mr Kouwenhoven pursuant to a proper request for his
provisional
arrest. For those reasons, which differ somewhat from
those of the high court, the first ground of attack on the validity
of Mr Kouwenhoven's
arrest was correctly rejected by the high
court.
The attack
on the warrant of arrest
[28]
An initial application to
strike out all the answering affidavits on behalf of the respondents,
save that filed by Mr Burke of the
DPP's office, on the grounds that
they were deposed to before police officers was not pursued. Instead,
the attack was limited
to one on the attestation of
W.O. van der Heever's affidavit by Sergeant van Hagen.
The complaint was that, as she
was a police officer employed in the
same office as the deponent, she had an interest in the litigation
that disqualified her from
acting as commissioner of oaths. The basis
for this was regulation 7(1) of the regulations governing the
administration of oaths
and affirmations (the regulations),
[13]
which provides in terms that a commissioner of oaths shall not
administer an oath or affirmation relating to a matter in which
they
have an interest. Under regulation 7(2) that provision does not apply
to an affidavit or declaration mentioned in the schedule
to the
regulations. Item 2 of the Schedule provides:
A
declaration taken by a commissioner of oaths who is not an attorney
and whose only interest therein arises out of his employment
and in
the course of his duty.'
Provisions
in these terms have been included in the relevant regulations for
many years, both under the present statute and its
predecessor.
[14]
[29]
Regulation 7(1) and its predecessors
have been the subject of judicial interpretation. The cases hold that
the regulation requires
commissioners to be independent in the
exercise of their duties.
[15]
An interest has been held to be a pecuniary interest, or some
interest by which the legal rights or liabilities of the commissioner
are affected.
[16]
In
Benjamin
[17]
affidavits attested before the Deputy Master in litigation involving
the Master and his staff were held to be inadmissible as contravening
the regulation, but the judgment relied heavily on the decision in
Brummer
[18]
for this conclusion. The judge's attention had been drawn to the fact
that
Brummer
had
been overruled by this court,
[19]
but he did not mention this. The decision cannot be taken as
expanding the scope of what is meant by an 'interest' under the
regulation.
[30]
The usual instances in which the
commissioner has been held to have an interest are cases where an
affidavit has been attested before
an attorney acting in the
litigation or proceedings for which the affidavit is tendered, or
before that attorney's partner or agent.
These cases overlap with a
rule of evidence derived from English law that an affidavit deposed
to before such an attorney is inadmissible.
[20]
In
Papenfus
[21]
the court extended the exclusionary rule of evidence to an in-house
legal adviser for a board in regard to affidavits deposed to
by staff
of the board in litigation to which the board was party.
[31]
Counsel for Mr Kouwenhoven relied
strongly on
Papenfus
so
it is desirable to examine what it decided and the reasoning of the
judge. He first considered the provisions of the regulations
governing the administration of an oath. Those applicable at the time
were the same in all material respects as the ones at present
applicable. His conclusion was that the regulation did not preclude
the legal adviser from acting as commissioner of oaths because
she
did not have an interest in the matter as provided in regulation
7(1). The judge said:
[22]
'
The
commissioner of oaths in the present case, being a legal adviser to
the respondent Board, has, on the ascertained facts, no
'personal'
interest whatever in the fate of these proceedings, even if it were
to be assumed against the respondent that she
advised her
employer to resist the applicant's motion, drew the several
affidavits now in question and was therefore 'interested'
in the
course advised and pursued by her on behalf of the respondent. Her
'interest' would only arise from the fact of her employment.
The
information disclosed justifies the inference that, if she had
not been so employed, she would have had no interest whatever
in the
outcome of this litigation. …
The
regulations should in my view be so interpreted as not to preclude a
legal adviser from acting as a commissioner of oaths in
litigation
in which his employer is concerned. The 'interest' arising
is too remote to fall within the general prohibition
of reg. 3, and
it is moreover rendered permissible by item 3 of the schedule.'
The
approach to the regulations was therefore consistent with other
decisions holding that the regulations did not preclude a salaried
employee of an attorney from acting as a commissioner of oaths in
relation to affidavits deposed to by witnesses in proceedings
in
which their employer was the attorney of record for a party.
[23]
[32]
In the case of police officers investigating crimes two
judgments holding that they had a disqualifying interest in
relation
to affidavits signed by witnesses in the course of their
investigations,
[24]
were overruled by this court.
[25]
In
Royal Hotel Dundee
it was said that item 2 in the schedule
to the regulations appeared to cover the case of a police
officer.
[26]
Despite that, in
Dyani
,
[27]
three affidavits deposed to by police officers were held to be
inadmissible because they had been attested before commissioners
of
oaths who were themselves police officers. Another affidavit was
excluded because the commissioner of oaths was a police officer
and
employee of the respondent. In excluding them Jafta J said:
'
In
this matter the affidavits by Mnyakaza, Mgodeli and Jooste were
deposed to by colleagues of the commissioners of oath who, by
virtue
of their relations to the deponents, do not meet the requirement of
an independent, unbiased and impartial commissioner.
Botoman’s
affidavit is also tainted by the fact that the commissioner of oaths
is the employee of the first respondent and
that other respondents
were also colleagues of the commissioner. It is quite clear that all
those commissioners could be regarded
as having interest in the
subject matter of these proceedings.
It is unclear from the
report how closely linked the deponents were to the commissioners of
oaths, or whether the decision was based
solely on the fact that both
the deponents and the commissioners were police officers. The quoted
passage suggests that it was
a general rule that police officers
could not act as commissioners of oaths in respect of affidavits
deposed to by other police
officers or other witnesses in any
proceedings where the Minister of Police was involved. It is also
unclear whether the judge
was saying that the attestation was
improper, or applying the rule of evidence in regard to their
admissibility, which would have
involved a substantial extension of
that rule. There was no reference in the judgment to regulation 7(2)
or to item 2 of the Schedule
to the regulations.
[33]
In
Sihlobo
,
[28]
after a careful consideration of the regulations, and in particular
regulation 7(2), Pakade J held that
Dyani
was clearly wrong
insofar as it held that a policeman could not act as a commissioner
in relation to the affidavit of another police
officer. That decision
was followed in
Van Rooyen
.
[29]
It is necessary to resolve the uncertainty in this regard.
[34]
Commissioners of oaths are persons designated by the
Minister of Justice as such by virtue of their office. The current
designation
[30]
includes no fewer than 77 categories of officers, ranging from
members of the National Executive and a number of persons holding
office in the administration of justice (but curiously not judges,
although their secretaries are designated), to the chairperson
of
management of a children's home in Pretoria. In terms of s 7 of
the statute all of these are authorised to administer an
oath or
affirmation or take a solemn or attested declaration within the area
for which they are a commissioner. Regulation 7(1)
precludes a
commissioner from performing these functions 'relating to a matter in
which they have an interest'. The authorities
already cited say that
this must be a pecuniary interest or an interest whereby the rights
and obligations of the commissioner
would be affected.
[35]
The mere fact of employment by a person having an
interest in the matter has not been regarded as constituting a
disqualifying
interest, save in the two cases involving police
officers that were overruled in
Rajah
, and now possibly in
Dyani
. The implications of extending the concept of an
interest in the matter under the regulations to employees would be
far-reaching.
Could a judge depose to an affidavit before their
secretary, or the secretary of a colleague, or the registrar of the
court? Could
they depose to an affidavit before a magistrate? One
merely has to peruse the list of persons who are appointed as
commissioners
of oaths to realise the complexities that would
potentially arise if that approach to an interest were to be adopted.
Fortunately
it is not the approach adopted by our courts and
Regulation 7(2), read with Item 2 of the Schedule, puts the matter
beyond doubt.
If the only interest arises out of the commissioner's
employment and in the course of their duty it does not fall under
regulation
7(1). In that sense regulation 7(2) may not embody an
exception in the usual sense of a provision that cuts down what would
otherwise
be the scope of regulation 7(1). Its purpose is rather more
to operate
ex abundante cautela
by making it clear that the
performance of a commissioner's functions arising out of their
employment and in the course of their
duties is not prohibited. To
the extent that
Dyani
decided otherwise it was incorrect and
is overruled.
[36]
The facts in this case fall squarely within item 2 of the
schedule to the regulations. Sergeant van Hagen is stationed at the
General
Desk of the Interpol bureau in Pretoria and has no
involvement in extradition matters. She had not been involved in the
proceedings
against Mr Kouwenhoven and said that she was unaware of
the matter and had not even heard her colleagues discussing it. She
commissioned
W.O. van der Heever's affidavit because
she is a police officer and was readily available to do so. The
argument
that she had an interest in the matter disqualifying her
from doing so had no merit.
[37]
Given the reliance placed on
Papenfus
it is as well to
address the decision in that case. Contrary to the submissions before
us, the court accepted that the affidavits
had been properly
commissioned, but
then turned to their
admissibility in terms of the rule of evidence already mentioned. In
holding them to be inadmissible it said:
[31]
'
The
fact that the commissioner is a partner of the deponent, or his
servant, or a co-official, or a junior officer must, in some
cases at
least, militate against the proper discharge by the commissioner of
his duty. That is the reason for excluding clerks
and partners
of an attorney as commissioners of oaths for affidavits drawn by the
attorney for a party or witness. The
reason becomes even more cogent
where the attorney himself happens to be the deponent.
That
is closely similar to the situation where officials of an
organisation like the respondent Board have to swear to depositions
before a commissioner of oaths who, as the legal adviser, is
their colleague and conceivably their junior colleague. The risk
of the procedure in administering the oath being something less than
ideal becomes too great to be countenanced by the Court. The
rule
excluding attorneys should be extended to include legal advisers. If
the respondent Board wishes to have affidavits by its
officials
attested for court purposes, the attestation should preferably
be by a commissioner unconnected with its organisation,
certainly not
by its legal adviser.
In
my view the attestation by the legal adviser of the affidavits filed
by the respondent is insufficient to render them admissible
in
evidence. They are struck out.'
[38]
There is a fundamental problem with this line of reasoning.
Once it was accepted, as the court did, that the affidavits had been
properly commissioned by the legal adviser, on what basis was it
entitled to say that they were inadmissible? In application
proceedings
evidence is presented by way of affidavits. The manner in
which affidavits are to be sworn or affirmed is prescribed under the
regulations. An affidavit sworn in accordance with those regulations
is an affidavit for whatever purpose it is tendered. If it
contains
inadmissible evidence, such as hearsay, or irrelevant matter, it can
be struck out, either in whole or in part, but if
the evidence is
relevant and otherwise admissible, I fail to see on what legal basis
it can be excluded.
[39]
The basis has been said to be a rule of
evidence derived from English law and made applicable in the
Transvaal by s 55 of the
Transvaal Evidence Proclamation
1902.
[32]
In turn its foundation lay in two very specific statutory rules of
court. The one said specifically that no affidavit would be
sufficient that was sworn before a solicitor acting for a party, or
an agent or correspondent of the solicitor, or the party themselves.
The second said that if an affidavit would have been insufficient if
sworn before the solicitor, it would be insufficient if sworn
before
the solicitor's clerk or partner.
[33]
There are no equivalent provisions in our law and the limitations on
commissioners of oaths acting as such are those set out in
the
regulations.
[40]
In
Royal
Hotel, Dundee
[34]
Caney J traced the history of the matter in Natal and said that from
1937, when the earlier regulations came into effect, the evidential
rule and the regulations had operated side by side, the one in
relation to litigious matters and the other in relation to other
matters. However, the cases he discussed where affidavits were
excluded were all cases where the attorney before whom they had
been
sworn had an interest in the matter. Accordingly, there was no need
for an evidential rule to exclude them as they had been
sworn before
commissioners who were disqualified. I have not found any reference
to such a rule in the texts on evidence that I
have consulted.
Papenfus
appears
to be the first case to apply the rule to affidavits properly
executed before a competent commissioner of oaths in accordance
with
the regulations.
[41]
It seems to me that what was once a
rule of evidence is now dealt with by the detailed provisions of the
regulations governing the
commissioning of affidavits. There is
nothing in those regulations to suggest a bifurcation between
affidavits in litigious matters
and those prepared for non-litigious
purposes. Nor can I discern anything in the regulations that supports
an evidential rule such
as that which formerly applied by virtue of
English statutory provisions. So far as I can ascertain the position
in England is
simply that solicitors may not act as commissioners of
oaths where they represent a party in proceedings or where they have
an
interest in the matter that is the subject of the affidavit. That
is also the situation in South Africa as a result of the regulations.
In my view there was no justification in
Papenfus
for the invocation and extension of the old evidentiary rule. There
is even less justification for extending it further to the
facts of
this case. The challenge to the commissioning of
W.O. van der Heever's affidavit must fail.
Rubber
stamping
[42]
On a proper consideration of
the material placed before the Pretoria magistrate in support of the
application for the warrant the
issue of the warrant was justified.
Any argument based upon the non-disclosure of the alleged agreement
or undertaking falls away
with my rejection of the contention that
there was such an agreement or undertaking. On what factual basis,
then, does the argument
depend that the magistrate did not apply her
mind to that material and the provisions of the Act? The answer is
none at all.
[43]
The point first emerged in Mr Kouwenhoven's
first supplementary founding affidavit at a stage when the record
delivered in response
to the review application did not include
W.O. van der Heever's affidavit. The contention was that
there was no affidavit
and no oral evidence and therefore, where the
order said that the magistrate acted on 'information under oath',
that was incorrect.
For that reason, it was said that the magistrate
simply rubber-stamped the request for a warrant without applying his
or her mind
to the matter. This rationale disappeared once the record
was filed thereafter and it was apparent that there was an affidavit
in support of the application. Undeterred, in his second
supplementary founding affidavit Mr Kouwenhoven attacked the issue of
the warrant on the basis of a variety of alleged non-disclosures, the
only one of which pursued in this court being the non-disclosure
of
the alleged agreement or undertaking.
[44]
The allegation of rubber-stamping was
not repeated on this occasion. It resurfaced in the replying
affidavit in response to a statement
by W.O. van der Heever that the
magistrate issued the warrant 'after considering the application'.
This provoked Mr Kouwenhoven
to say the following:
'All
the indications are that, in fact, the Pretoria magistrate did not
consider the application and simply "rubber-stamped'
the draft
warrant.
In
this regard the absence of any affidavit from the Pretoria Magistrate
is telling.
The
Pretoria Magistrate clearly rubber-stamped what W.O. van der Heever
placed in front of her without bothering
to read the application. Her
rubber-stamping occurred on the same day.'
[45]
No factual foundation existed for any of
these allegations. The heads of argument sought to elide the original
allegation of rubber-stamping,
based on the incorrect belief that
there was no affidavit before the magistrate, with an allegation
based on the fact that the
magistrate abided the decision of the
court in the application and did not deliver an affidavit. But there
was no reason for the
magistrate to file an affidavit, because there
was no factual matter for her to deal with.
[46]
The heads of argument suggested that
the magistrate 'did not notice the errors in the commissioning of the
affidavit'. The 'errors'
to which this referred were that
Sergeant van Hagen did not print her full name below the
declaration. She gave her name
and rank, which demonstrated that she
was
ex officio
a
commissioner of oaths, as required by regulation 4(2)(
b
).
[35]
The failure to give her full names was irrelevant and, as the papers
in this case show, occurs frequently in the attestation of
affidavits. The addition of 'Estie' before 'Van Hagen' would not have
made the slightest difference and substantial compliance
was all that
was necessary.
[36]
Whether the magistrate noticed the omission was neither here nor
there. An oversight in that regard would not have affected the
validity of the decision to issue the warrant. The other fact
advanced in the heads of argument as evidence of 'rubber-stamping'
was the failure by the magistrate to give notice to the Minister of
Justice in terms of s 8(1) of the Act. How, a failure
to attend
to an administrative task after issuing a writ was evidence of a
failure to consider the issues relevant to the issue
of the writ was
not explained.
[47]
The decision to issue a warrant is a
judicial decision and there is no reason to think that it was taken
other than properly. There
was no reason for the magistrate to
deliver an affidavit justifying her decision and saying that she
applied her mind to the matter
before issuing the warrant. A failure
to deliver an affidavit when there is nothing to respond to was not a
basis for this argument.
There was no merit in the 'rubber-stamping'
point.
Section 8
of the Act
[48]
Section 8(1) of the Act provides that
‘
8
Magistrate to furnish Minister with
particulars relating to issue of certain warrants
(1) Any
magistrate who, under paragraph (
b
) of subsection (1) of
section 5 or under section 7, issued a warrant for the arrest or
further detention of any person other than
a person alleged to have
committed an offence in an associated state, shall forthwith furnish
the Minister with particulars relating
to the issue of such warrant.’
The need for the
magistrate to do this arises, because in terms of s 8(2) the Minister
is entitled, if the warrant has not yet been
executed, to direct that
it be cancelled, or, if it has been executed, to direct the discharge
of the person concerned. That may
be done either because the Minister
is of the view that the request for extradition is being delayed
unreasonably or for any other
reason the Minister may deem fit.
[49]
It is common cause that the magistrate did not furnish the
Minister with particulars of the issue of the warrant and the
Minister
did not consider whether to exercise his powers under
s 8(2). The submission was that depriving the Minister of the
opportunity
to set aside the warrant invalidated the warrant itself.
However, once it was accepted that the initial issue of the warrant
was
lawful, counsel found himself in difficulties in explaining when
and how invalidity would occur. The Act does not provide that the
warrant is stayed until after the Minister has been given notice
under s 8(1), nor does it provide that the warrant lapses
if the
Minister is not notified within a specified time period. Section 8(2)
expressly contemplates that the person concerned
may already have
been arrested pursuant to the warrant by the time the Minister
considers their situation.
[50]
Although s 8(1) contemplates that the particulars
will be given 'forthwith' it is inevitable that some time will elapse
between the issue of the warrant and furnishing the Minister with
particulars of the issue of the warrant. What period of delay
is
permissible before the validity of the warrant expires? Counsel was
unable to say. Various factual scenarios were posed with
a view to
securing clarity on the issue. How long a delay would matter? In this
case the warrant was issued on 6 December
and executed on 8
December. Was that invalid because no notification to the Minister
had been sent? What if the magistrate had
prepared a letter
immediately, but it required to be typed and there was a holdup with
the typist, or the magistrate was called
away for a couple of days to
attend to a family emergency? What if the magistrate was involved in
a serious motor accident that
evening and was hospitalised for a
lengthy period or even killed? When would the validity of the warrant
expire and how would anybody
know?
[51]
The inability to provide an answer indicated that there
was a serious flaw in the argument. It lay in the proposition that
a
failure to perform the duty imposed under s 8(1) operated
retrospectively to invalidate the warrant. While the obligation
to
furnish particulars relating to the issue of the warrant arose from
the issue of a warrant, the propriety of the decision to
issue the
warrant was not affected thereby. That decision required the
magistrate to bring an independent mind to bear on the issues
relevant to a determination that the person concerned was subject to
extradition.
[37]
Having done so the magistrate would have performed her proper
function in regard to the issue of the warrant and her subsequent
conduct would not affect that. The purpose of s 8(2) is to
enable the Minister to consider whether there are reasons why the
warrant should remain in force. Although the magistrate is obliged to
furnish particulars of the issue of the warrant forthwith
upon
issuing the warrant, there is no time limit on the Minister's
consideration of whether it should remain in force. The Minister's
powers may be exercised 'at any time' after having been notified that
a warrant has been issued. It would be a curious construction
of
these provisions that the magistrate's failure to furnish particulars
to the Minister 'forthwith' would cause the warrant to
lapse but, if
she did furnish them, the Minister could take a lengthy period before
taking any decision. Given the nature of the
circumstances in which
the Minister may set the warrant aside it is even conceivable that
the initial decision may be to sustain
the arrest, but with the
passage of time the Minister might conclude that the request for
extradition is being unreasonably delayed
and direct that the
arrested person be discharged forthwith.
[52]
Were a consequence as drastic as the
invalidity and lapsing of the warrant intended, one would have
expected s 8(2) to be specific
as to the period that would
constitute furnishing particulars 'forthwith'. and to state expressly
the consequences flowing from
non-compliance. Furthermore, there is
nothing to prevent the Minister from exercising the powers conferred
by s 8(2) when
the issue of the warrant comes to the Minister's
attention, albeit not as a result of the magistrate's actions. That
was the situation
in the present case.
[53]
For those reasons, I am
satisfied that the magistrate's failure to comply with s 8(1)
did not invalidate the warrant. This
point must also be rejected.
The
circumstances of the arrest
[54]
As a last-ditch contention,
counsel sought to argue as an additional point that the circumstances
of Mr Kouwenhoven's arrest were
not in accordance with the 'proper
and dignified' arrangements that were referred to in the closing
paragraph of Mr Eisenberg's
letter to W.O. van de Heever.
Quite why this would invalidate the arrest was not explained, but it
is unnecessary
to dwell on it. The point had not been raised as a
ground for invalidating the arrest in the founding affidavit and
there was no
evidence to support it. The police arrived at Mr
Kouwenhoven's home at 7.50 am on 8 December 2017, which in a fit of
hyperbole
counsel described as a 'dawn raid', and at around 8.30 am
he was taken in an unmarked police vehicle (not a police van) from
the
house to the Sea Point police station. During the period between
7.50 am and 8.30 am he took the police on a tour of all five stories
of his house. He deposed to his affidavit in support of his bail
application four hours later. This was hardly the 'perp walk'
of
American journalism and the proper response to the submission is to
echo the words of Sachs J in
Quagliani
that:
[38]
‘
Legal
representatives are entitled, even obliged to defend the interests of
their clients with vigour and panache. Yet there must
be limits to
their ingenuity. Stretching the bounds of appropriate forensic
procedure beyond breaking point is not permissible.
The raising
in the affidavits of a number of points and their subsequent
abandonment indicated that Mr Kouwenhoven's legal representatives
exercised their ingenuity to its limits.
[55]
There was no merit in the point.
General
[56]
None of the arguments advanced in support
of the contention that the arrest of Mr Kouwenhoven was invalid had
any merit. It is accordingly
unnecessary to address the contention,
based on the decision of this court in
Ebrahim
[39]
that, if the grounds advanced had any legal merit, they necessarily
meant that the magistrate charged with conducting an extradition
enquiry under ss 9 and 10 of the Act had no jurisdiction to do
so. Other than noting that Mr Ebrahim had been unlawfully abducted
from Swaziland and brought into South Africa, which is fundamentally
different from Mr Kouwenhoven's situation, it is unnecessary
to
discuss the case. It is also unnecessary to consider the cases where
courts have discussed, in the context of civil proceedings,
whether
the fact that a person has been brought before a magistrate and
thereafter remanded in custody interrupts the chain of
causation
between a prior unlawful arrest and the further detention of the
arrested individual.
[40]
Result
[57]
The appeal is dismissed with costs,
such costs to include the costs of two counsel in respect of both the
first respondent and the
second and third respondents.
M J D WALLIS
JUDGE OF APPEAL
Appearances
For appellant:
A Katz SC (with him D Cooke)
Instructed by:
Eisenberg & Associates, Cape Town;
Webbers Attorneys, Bloemfontein
For first respondent: A M
Breitenbach SC (with him A G Christians)
Instructed by:
State Attorney, Cape Town and Bloemfontein.
For second and third
respondents: F Petersen (with him M Mokhoaetsi)
Instructed by:
State Attorney, Cape Town and Bloemfontein
[1]
His conviction was on the basis that he was a
confidante of Mr Taylor and aided and abetted Mr Taylor’s own
crimes during
the course of that war. Mr Taylor was subsequently
convicted by the Special Court for Sierra Leone of 11 counts of
aiding and
abetting war crimes and crimes against humanity involving
acts of terrorism, murder, rape, enslavement and pillage and is
serving
a term of 50 years imprisonment.
[2]
He has lodged an appeal to the European Court of Human Rights, which
it appears is still pending. The
core legal
question in the appeal is:
'Did
the Court of Appeal err in rejecting the defence’s submission
that the amnesty scheme approved by Charles Taylor on
7 August 2003
prevented the prosecution of the defendant in the Netherlands for
the crimes with which he had been charged?' (See:
http://www.internationalcrimesdatabase.org/Case/3309/The-Public-Prosecutor-v-Guus-Kouwenhoven/)
[3]
Director of Public Prosecutions, Western Cape
v Kouwenhoven; Kouwenhoven v Director of Public Prosecutions,
Western Cape and Others
[2021] 1 All
SA 843 (WCC); 2021 (1) SACR 579 (WCC).
[4]
Kouwenhoven v Director of Public Prosecutions,
Western Cape and Others
[2021] ZASCA
120.
[5]
Reliance was placed on
Ebrahim v S
1991 (2) SA 553 (A).
[6]
Smit v Minister of Justice and Correctional Services and Others
[2020] ZACC 29; 2021 (1) SACR 482 (CC); 2021 (3) BCLR 219 (CC).
[7]
Relying on
Pheko and
Others v Ekurhuleni Municipality (Socio-Economic Rights Institute of
South Africa as Amicus Curiae)
[2011]
ZACC 34
;
2012 (2) SA 598
(CC)
(Pheko
)
para 34 and
Buthelezi v Minister of
Home Affairs and Others
[2012] ZASCA
174
;
2013 (3) SA 325
(SCA) (
Buthelezi
)
para 4.
[8]
Minister of Law and Order and Others v Hurley
and Another
1986 (3) SA 568
(A) at
589D-H.
[9]
Ngqumba en ń Ander v Staatspresident en
Andere; Damons NO en Andere v Staatspresident en Andere; Jooste v
Staatspresident
en Andere
1988 (4) SA
224
(A) at 259H-263D;
President of the
Republic of South Africa and Others v M & G Media Ltd
2011
(2) SA 1
(SCA) paras 13 and 14.
[10]
Tsose v Minister of Justice
1951
(3) SA 10
(A) at 17G-H;
National
Director of Public Prosecutions v Zuma
[2009]
ZASCA 1
;
2009 (2) SA 277
(SCA) para 37
[11]
President of the Republic of South Africa v Quagliani
;
President of the Republic of South Africa and Others v Van Rooyen
and Another
;
Goodwin v Director-General, Department of
Justice and Constitutional Development and Others
[2009] ZACC 1
;
2009 (2) SA 466
(CC) (
Quagliani
) para 46.
[12]
This did not dispose of the fact that Mr Katz was
a material witness and merely exacerbated the problem because Mr
Eisenberg was
then the only the witness to the conversations with
both W.O. van der Heever and Mr van Heerden. That he
should have
withdrawn and ceased to act, at least once it was
apparent that there were disputes over the tenor and effect of those
conversations,
is clear.
Hendricks v
Davidoff
1955 (2) SA 369
(C);
Elgin
Engineering Co (Pty) ltd v Hillview Motor Transport
1961
(4) SA 450
(N) at 454F-H.
[13]
Regulations Governing the Administering of an
Oath or Affirmation published in terms of s 10 of the Justices
of the Peace
and Commissioner of Oaths Act 16 of 1963 under GN R1258
of 21 July 1972, as amended published in GG 3619 of that date.
[14]
The Justices of the Peace and Commissioner of
Oaths Act 16 of 1914. See
Royal Hotel,
Dundee and Others v Liquor Licencing Board, Area No 26; Durnacol
Recreation Club v Liquor Licencing Board, Area No
26
1966 (2) SA 661
(N) (
Royal Hotel,
Dundee
).
[15]
Ibid at 667A.
[16]
Tambay v Hawa
1946
CPD 866
;
Louw v Riekert
1957
(3) SA 106
(T) at 111.
[17]
The Master v Benjamin NO
1955
(4) SA 14 (T)
[18]
R v Brummer
1952
(4) SA 437
(T) at 439. See also
R v Du
Pont
1954 (3) SA 79
(T).
[19]
R v Rajah
1955
(3) SA 276
(A) at 282 and 283.
[20]
See the cases collected in
Royal
Hotel
,
Dundee
at 665H-668C and
Radue
Weir Holdings Ltd t/a Weirs Cash & Carry v Galleus Investments
CC t/a Bargain Wholesalers
1998 (3) SA
677
(E) at 669H-681E.
[21]
Papenfus v Transvaal Board for the Development
of Peri-Urban Areas
1969 (2) SA 66
(T)
at 69H-70A
[22]
Papenfus
, ibid,
[23]
Tambay v Hawa
,
op cit, fn 15;
Royal Hotel, Dundee
,
op cit, fn 13;
S v Van Schalkwyk
1966
(1) SA 172
(T) at 174H-176F.
[24]
R v Brummer
and
R v Du Pont
op
cit fn 17.
[25]
R v Rajah
, op
cit, fn 18.
[26]
Royal Hotel, Dundee
,
op cit, fn 13 at 668H.
[27]
Dyani v Minister of Safety and Security and
others
[2001] 3 All SA 310
(Tk) para
21.
[28]
S v Sihlobo
[2004]
JOL 12831
(Tk) paras 10-21.
[29]
Van Rooyen and Another v The Minister of
Police and Others
2019 (1) SACR 349
(NCK) paras 29-37. It was also followed in an unreported decision of
the Gauteng division in
Grammaticus
(Pty) Ltd v Minister of Police and Others
50538/2017
dated 12 December 2017, a copy of which was made available to us by
counsel.
[30]
Designation of Commissioners of Oaths in terms of
section 6 of the Justices of the Peace and Commissioners of Oaths
Act 1963 published
under GN 903 of 10 July 1998 in GG 19033 of that
date.
[31]
Papenfus
op cit
fn 20.
[32]
Louw v Riekert
1957
(1) SA 106
(T) at 110H-112B. The researches of Caney J in
Royal
Hotel, Dundee
suggest that there was a
similar rule in Natal under a similar statute.
[33]
This rule was upheld in
Louw
v Riekert
, ibid, but had been rejected
in
Geldenhuis Deep Ltd v Superior
Trading Co (Pty) Ltd
1934 WLD 117.
[34]
Op cit, fn 13 at 666F-670A
[35]
The regulation requires the commissioner to
'state his designation and the area for which he holds his
appointment
or
the office held by him if he holds his appointment
ex
officio
.' Saying that she was a
sergeant in the South African Police Service satisfied this
requirement.
[36]
Noordkaaplandse Ko-op Lewendehawe Agentskap
Bpk v Van Rooyen and Others
1977 (1)
SA 403
(NC) at 408H.
[37]
Smit
op cit, fn
5 para 111.
[38]
President of the Republic of South Africa v Quagliani
;
President of the Republic of South Africa and Others v Van Rooyen
and Another
;
Goodwin v Director-General, Department of
Justice and Constitutional Development and Others
[2009] ZACC 1
;
2009 (2) SA 466
(CC) para 73.
[39]
Ebrahim v S
1991 (2) SA 553 (A).
[40]
De Klerk v Minister of Police
[2019]
ZACC 32
;
2021 (4) SA 585
(CC) paras 36 to 45.