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[2021] ZASCA 120
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Kouwenhoven v DPP (Western Cape) and Others (288/2021) [2021] ZASCA 120; [2021] 4 All SA 619 (SCA); 2022 (1) SACR 115 (SCA) (22 September 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no:288/2021
In the matter between:
AUGUSTINUS PETRUS MARIA
KOUWENHOVEN
APPELLANT
and
DIRECTOR OF PUBLIC
PROSECUTIONS
(WESTERN
CAPE)
FIRST RESPONDENT
THE
STATE
SECOND
RESPONDENT
THE MINISTER OF JUSTICE
AND
CORRECTIONAL
SERVICES
THIRD RESPONDENT
THE ADDITIONAL
MAGISTRATE,
MAGISTRATES' COURT FOR
THE
DISTRICT COURT OF CAPE
TOWN
FOURTH RESPONDENT
Neutral citation:
Kouwenhoven
v DPP (Western Cape) and Others
(288/2021)
[2021] ZASCA 120
(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:
Section 10(1) of the Extradition Act 67
of 1962 – discharge of person whose extradition is requested on
question of law –
appealable in terms of
s 310(1)
of the
Criminal Procedure Act 51 of 1977
. Procedure for preparing stated
case in terms of
s 310(1)
– questions of law to be
determined by Director of Public Prosecutions – magistrate to
prepare stated case in relation
to those questions – magistrate
to state factual findings on which questions were answered –
person discharged not
entitled to notice that the DPP has requested
the magistrate to state a case – not entitled to make
representations in relation
to the terms of the stated case.
Section 3(1)
of Extradition Act – meaning of expression 'committed within
the jurisdiction' – not confined to territorial jurisdiction
of
court of requesting state – refers to the power of the court in
the requesting state to conduct criminal trial in relation
to person
whose extradition was requested and determine their guilt or
innocence – extradition permissible where all criminal
acts
were committed outside the territorial jurisdiction of the requesting
state's courts.
ORDER
On
appeal from:
Western Cape Division of
the High Court, Cape Town (Rogers J and Sher J, sitting as (1) court
of first instance in review proceedings
under Case No 181/2020; and
as (2) court of appeal from the decision of the fourth respondent
under Case No A181/2020):
1
The
appeal against the dismissal of the application under
case no 181/2020 is dismissed.
2
In case no A181/2020 the answer to the third question posed in the
case stated in terms
of
s 310(1)
of the
Criminal Procedure Act
52 of 1977
is amended by the insertion of the words 'under its
domestic law' after the word 'jurisdiction'.
3
The appeal against the high court's order in case A 181/200 is
dismissed.
Reported
sub nom 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).
JUDGMENT
Wallis JA
(Ponnan, Schippers and Hughes JJA and Kgoele AJA concurring)
[1]
Mr Kouwenhoven, the appellant, is a Dutch
citizen, who was arrested on 8 December 2018 pursuant to a
warrant of arrest issued
in terms of
s 5(1)(
b
)
of the Extradition Act
67 of 1962 (the Act). He unsuccessfully
challenged his arrest in review proceedings before the Western Cape
Division of the high
court and his appeal against that decision is
dismissed in a separate judgment to be delivered at the same time as
this one.
[1]
After the high court handed down its judgment in the review,
[2]
an extradition enquiry was held before the fourth respondent, an
additional magistrate in Cape Town. Mr Kouwenhoven contended
that he was not subject to extradition in terms of s 3(1) of the
Extradition Act 67 of 1962 (the Act) because the crimes of
which
he had been convicted in the Netherlands had been committed in
Liberia and not within the territorial area of jurisdiction
of the
Netherlands itself. The magistrate upheld this point and as a result
held that Mr Kouwenhoven was not a person liable to
be extradited in
terms of the provisions of s 3(1) of the Act. Following from that
conclusion he was discharged in terms of s 10(3)
of the Act.
[2]
The National Director of Public Prosecutions, Western Cape
(the DPP), then asked the magistrate to state a case for
consideration
of the high court in terms of s 310(1) of the
Criminal Procedure Act 51 of 1977 (the CPA), as read with rule 67(12)
of the
Magistrates’ Court Rules. On 10 July 2020, the
magistrate stated a case in accordance with this request and on
20 July 2020
the DPP lodged a notice of appeal with the
Western Cape Division of the High Court. This prompted Mr Kouwenhoven
to launch a fresh
application for review on 3 September 2020,
against the DPP, the State and the Minister of Justice and
Correctional Services,
the first, second and third respondents
respectively in this appeal. The basis of the review was twofold. It
was first contended
that s 310(1) of the CPA was not available to
challenge the outcome of an extradition enquiry Alternatively it was
alleged that
the statement of case prepared by the magistrate was
invalid and fell to be set aside because Mr Kouwenhoven had not been
afforded
notice of the request to state a case, nor given an
opportunity to make representations to the magistrate in regard to
its preparation.
[3]
The combined appeal and review proceedings came before the
full bench which delivered judgment on 23 December 2020.
[3]
In a judgment by Sher J the points relating to s 310 of the CPA were
dismissed. In a judgment by Rogers J it was held that the
magistrate
had erred in construing the expression 'committed within the
jurisdiction' in s 3(1) of the Act as restricted to
the
territorial jurisdiction of the court of a requesting state. In the
result the review failed and the appeal succeeded. The
matter was
remitted to the magistrate to finalise the extradition enquiry in
accordance with the answers given to the questions
posed in the
stated case. This court granted special leave to appeal against the
decision in the appeal. Thereafter, Rogers and
Sher JJ granted leave
to appeal in the review, principally for reasons of convenience and
to avoid further delays, although they
did not think that it had any
reasonable prospects of success. There are therefore two appeals
before us, one against the upholding
of the DPP's appeal, and one
against the dismissal of Mr Kouwenhoven's review. They were combined
for the purposes of argument
and dealt with together with the appeal
against the judgment in the earlier review proceedings.
The issues
[4]
Three issues arise in these
appeals, two from the review and one from the appeal. The first is
whether the DPP was entitled to invoke
s 310(1) of the CPA for
the purpose of challenging the decision by the extradition magistrate
that Mr Kouwenhoven was not
liable to be extradited. The second is
whether, if he was, Mr Kouwenhoven was entitled to notice of the
request and to have input
into the magistrate's formulation of the
stated case. The third, which is only reached if the first two are
answered against Mr Kouwenhoven,
is whether the magistrate's
decision on the interpretation of s 3(1) of the Act was correct.
Each will be dealt with in turn.
An anterior issue that the entire
process was vitiated because of the alleged invalidity of Mr
Kouwenhoven's arrest has been disposed
of by the dismissal of the
appeal in the earlier proceedings.
Section
310(1) of the CPA
[5]
As with all questions of statutory
interpretation it is best to start with the provision in question.
Section 310 of the CPA, provides
that:
'
When
a lower court has in criminal proceedings given a decision in favour
of the accused on any question of law, including an order
made under
section 85(2), the Attorney General . . . may require the judicial
officer concerned to state a case for the consideration
of the
provincial or local division having jurisdiction, setting forth the
question of law and his decision thereon and, if evidence
has been
heard, his findings of fact, insofar as they are material to the
question of law.'
The language of the
section is not obscure. It confers a right of appeal on the DPP where
a magistrate has given a decision (a)
in criminal proceedings; (b) in
favour of an 'accused'; (c) on 'any question of law'. The
magistrate's decision to discharge Mr
Kouwenhoven was undoubtedly a
decision based on a question of law. Was it given in 'criminal
proceedings' and, for the purposes
of those proceedings, was Mr
Kouwenhoven an 'accused'.
Preparatory
examinations
[6]
In terms of s 9(2) of the Act the
magistrate holding the enquiry shall proceed in the manner in which a
preparatory examination
is held in terms of the CPA in the case of a
person charged with an offence in South Africa. While
preparatory examinations
have now largely, if not entirely, fallen
into disuse,
[4]
under s 54 of the Criminal Procedure Act 56 of 1955 (the CPA
1955), which was the applicable statute when the Act was passed
in
1962, no person could be tried in a superior court unless they had
first been committed for trial by a magistrate after conducting
a
preparatory examination. The procedure was for the person concerned
to be brought before a magistrate, who would then 'enquire
into the
charge against the accused'.
[5]
No charge would be put to the accused and they would not be required
to plead. However, if the magistrate at any stage regarded
the charge
to be groundless, they were entitled to discharge the accused.
[6]
If at the conclusion of the preparatory examination the magistrate
was of the opinion that on all the evidence no sufficient case
was
made out to put the accused to a trial, the magistrate was obliged to
discharge the accused.
[7]
[7]
Under the CPA 1955, where the
magistrate discharged the accused at the end of a preparatory
examination the charge could not be
revived unless new evidence upon
oath came to light.
[8]
However, if the discharge followed upon a decision by the magistrate
on a point of law, that could be the subject of an appeal
by way of a
case stated by the magistrate under s 104 of the Magistrates'
Courts Act 32 of 1944 (the MCA). The right of appeal
followed from
the fact that a preparatory examination was expressly included in the
definition of 'criminal proceedings' in s 1
of the CPA 1955.
Section 104 of the MCA provided that:
'
(1) When
a magistrate’s court has in any criminal proceedings given a
decision in favour of the accused on any matter
of law, the
Attorney-General … may require the judicial officer concerned
to state a case for the consideration of the court
of appeal, setting
forth the question of law and his decision thereon, and, if evidence
has been heard, his findings of fact, in
so far as they are material
to the question of law.
(2) When
such case has been stated, the Attorney-General …may appeal
from that decision to the court of appeal
referred to in subsection
(1) of section
one hundred and three
.'
[8]
The CPA 1955 was replaced by the CPA, which
retained the preparatory examination in an amended form. The most
important changes
were that a charge was to be put to the accused who
was obliged to plead to the charge.
[9]
To that extent the preparatory examination now marks the commencement
of a criminal trial. Even without the definition of 'criminal
proceedings' in s 1 of the CPA, there could be no doubt that a
preparatory examination now constituted criminal proceedings.
However, the procedure otherwise remained the same. At the end of a
preparatory examination the magistrate would discharge the
accused if
of the opinion that no sufficient case had been made to put the
accused on trial upon the charge, or any offence of
which the accused
could be convicted on that charge.
[10]
However, the DPP was empowered, notwithstanding the discharge, to
arraign the accused for trial even in the absence of further
evidence.
[11]
[9]
These changes did not do away with
the right to appeal on a question of law from a magistrate's decision
to discharge the accused.
The CPA repealed s 104 of the MCA, but
replaced it in substantially the same terms with s 310.
The
definition of 'criminal proceedings' in the CPA continued to include
a preparatory examination. Accordingly, the DPP's decision
whether
to challenge the accused's discharge by way of an appeal, or arraign
them for trial, would depend on whether the discharge
was on a
clear-cut legal point that was likely to be decisive of the outcome
of a prosecution.
[10]
Two aspects of this right of appeal against
decisions by magistrates in preparatory examinations are noteworthy.
The first is that
the right of appeal was confined to decisions
adverse to the DPP on questions of law. Absent a right of appeal, the
discharge of
the accused on a question of law would preclude their
being arraigned in a superior court on the charge in question. The
magistrate's
decision would then be decisive of their criminal
liability, even though the charge was probably one falling outside
the statutory
jurisdiction of magistrates' courts.
[12]
The question of law would have been within the magistrate's
jurisdiction, so the decision would not have been reviewable.
[13]
It would only have become potentially reviewable for error of law
after the seminal decision in
Hira v
Booysen
.
[14]
The right of appeal under s 104, and thereafter s 310(1),
satisfied the obvious need for the prosecution authorities
to be able
to challenge such a decision. But the right of appeal was confined to
issues of law. If the discharge was on the facts,
further evidence
had to be produced and a fresh preparatory examination held. The
second point is that no right of appeal was given
to the accused if
the magistrate committed them for trial. The reason is obvious. The
accused would be able to defend themselves
on the facts in the course
of the trial.
[11]
In summary, therefore, in 1962 when the Act
was passed, a decision by a magistrate presiding over a preparatory
examination to discharge
an accused on a question of law was subject
to a clear right of appeal by way of a case stated. The right
originally vested in
the Attorney-General. The repeal of the CPA 1955
and its replacement by the CPA did not alter this right in any way.
It remained
open to the Attorney-General, and is now open to the DPP,
to challenge, by way of an appeal on a case stated, a magistrate's
decision
to discharge an accused at the end of a preparatory
examination on the basis of a conclusion on a question of law.
Extradition
enquiries
[12]
Section 9(2) of the Act requires the
magistrate to conduct the enquiry in the same manner as a preparatory
examination. A preparatory
examination under CPA 1955 and an
extradition enquiry under the Act were extremely similar. Both were
enquiries, not trials. Both
were a necessary precursor to the person
concerned being charged with a criminal offence – in the
Supreme Court in the case
of a preparatory examination and in a
foreign court of competent jurisdiction in the case of an extradition
enquiry. Both were
conducted on the basis of sworn testimony and the
person concerned had a right of legal representation, including the
right to
cross-examine witnesses and, if so advised, to give evidence
on oath. Both could end in the discharge of the person brought before
the enquiry. In both cases the person concerned could, if they had
been arrested, be released on bail. The similarities were marked.
The
changes introduced by the CPA created differences between the two,
but none that would affect the appealability of a decision
in an
extradition enquiry.
[13]
An extradition enquiry is not deemed to be
a preparatory examination. One cannot therefore extrapolate from the
NDPP's right of
appeal on a point of law under s 310 of the CPA
in relation to a preparatory examination, that there must be a
similar right
of appeal in the case of a discharge at the end of an
extradition enquiry. That will only be the case if extradition
enquiries
are criminal proceedings for the purposes of s 310 of
the CPA. The marked similarity between the preparatory examination
and
the extradition enquiry is but one factor to be taken into
account in considering that question.
[14]
The CPA does not define criminal
proceedings beyond saying that a preparatory examination is included.
In
Swanepoel
[15]
this court considered whether a preparatory examination concluded
under the CPA 1955 constituted the same criminal proceedings
as the
subsequent trial after the accused's committal. The question arose in
the context of the transitional provisions governing
criminal
proceedings commenced before the repeal of the CPA 1955 and its
replacement with the CPA. Rumpff CJ said in regard
to the
definition of criminal proceedings that:
[16]
Section
1 of Act 51 of 1977 provides that 'criminal proceedings' include a
preparatory examination in terms of Chapter 20. It is
thus clear that
Act 51 of 1977 does not attempt to provide a definition of the term
'criminal proceedings' save to say that it
also includes a
preparatory examination. It would be impossible to give a precise
definition of the term 'criminal proceedings'
because when one looks
at the Act, the words do not apply to only one specific type of
criminal proceeding, but to different types
of criminal proceedings.'
(My translation.)
The court
held that the preparatory examination and the trial were separate
criminal proceedings and accordingly the latter was
properly
conducted in terms of the CPA and not the CPA 1955.
[15]
Rumpff CJ did not identify the
different types of criminal proceedings that he perceived in the CPA
and the topic has not been explored
subsequently in a context similar
to the present case. A number of possibilities spring to mind, for
example, an enquiry into the
non-appearance of an accused in response
to a summons under s 55 of the CPA;
[17]
a bail application; an enquiry into the failure of an accused on bail
to appear at the trial or to return after an adjournment;
[18]
and an enquiry under s 205 of the CPA. These are all proceedings
provided for in the CPA in connection with actual or potential
criminal trials. But that does not mean that every provision of the
CPA is applicable to each and every one of them. For example,
a bail
application has been held not to constitute criminal proceedings for
the purposes of s 211 of the CPA dealing with
the admissibility
of evidence of previous convictions.
[19]
[16]
There are dicta in some cases where,
in contrasting the proceeding before them with a criminal trial,
courts have remarked that
the proceedings before them were not
criminal proceedings. For example, in
Heyman
[20]
the court was concerned with two individuals who refused to give
evidence, or to be sworn or give an affirmation. They had been
sentenced to twelve months imprisonment and, on appeal contended that
the proceedings were irregular because they had been refused
the
services of a lawyer. They also appealed against their sentences.
Steyn CJ said that the purpose of the section
[21]
was to place pressure on an unwilling witness to testify and added:
'
Sec. 212 (1)
does not in specific terms create an offence or require the
presentation of a formal charge to which the witness
has to
plead, and the provision in sub-sec. (4) for an appeal against the
sentence as if it were a sentence imposed in a criminal
case clearly
implies that an enquiry under this section does not constitute
criminal proceedings.'
Section 212(4)
conferred a right of appeal against sentence 'as if it was a sentence
imposed in a criminal case', so it is
apparent that Steyn CJ was not
concerned with whether the proceedings were criminal proceedings as
defined in CPA 1955, but with
the different question of whether this
was a criminal trial. This became explicit when he said thereafter
that it was clear that
the enquiry was not a criminal trial or a
prelude to a criminal trial, but that the distinction was of a purely
formal nature.
[22]
[17]
When a person subjected to a s 205
enquiry claimed the constitutional rights of an accused person under
s 25 of the Interim
Constitution, the Constitutional Court held,
in reliance on
Heyman
,
that they were not an accused person and therefore not entitled to
invoke those rights. In an obiter dictum, Ackermann J said
that the
proceedings were not 'regarded as' criminal proceedings.
[23]
He repeated that when dealing with the committal of a witness
refusing to answer questions at an insolvency enquiry under the
Insolvency Act 24 of 1936
.
[24]
Again, however, that was said by way of contrasting the proceedings
with a criminal trial and the dictum appears to have been motivated
by the fact that the refusal by the witness did not constitute a
crime. This conclusion was reached even though the proceedings
leading to the witness being committed were judicial proceedings.
[25]
[18]
I have considered these dicta for the sake
of completeness as they were not relied on by Mr Kouwenhoven's
counsel. An inquest has
also been held not to be criminal
proceedings.
[26]
In so holding, Preiss J said:
'…
a proceeding
such as an inquest, which is not a step in the prosecution of an
accused person on a specific charge, is a far cry
from criminal
proceedings.'
There
does not appear to be any further consideration of what, other than a
criminal trial, may constitute criminal proceedings
for the purposes
of
s 310
, save for the decision in
Paz
.
[27]
That dealt with the same issue as this case and held that the DPP
could resort to
s 310
where an extradition enquiry ends with the
discharge of the person concerned on a point of law. I will revert to
the reasoning
in due course. Counsel for Mr Kouwenhoven
contended that it was wrong and should be overruled.
[19]
Returning to textual questions, the
two express references to extradition in the CPA are not of any
assistance. Neither has any
bearing on whether for the purposes of
the appeal provisions of
s 310
the extradition enquiry before a
magistrate constitutes criminal proceedings. Under
s 40(1)(
k
)
a peace officer may arrest without warrant any person:
'who
has been concerned in or against whom a reasonable complaint has been
made or credible information has been received or a reasonable
suspicion exists that he has been concerned in any act committed
outside the Republic which, if committed in the Republic, would
have
been punishable as an offence, and for which he is, under any law
relating to extradition or fugitive offenders, liable to
be arrested
or detained in custody in the Republic'
An arrest
under this provision may lead to a magistrate issuing a warrant for
the arrested person's further detention under s 7(1)
of the Act
and the matter must then proceed to an enquiry within the scheme of
the Act. Its purpose seems to be to empower a peace
officer to secure
that a person does not escape extradition by fleeing the country
before the procedures under the Act can be followed.
Take this case.
A police officer received an Interpol Red Notice advising that Mr
Kouwenhoven had been convicted of war crimes
in the Netherlands and
warning him to expect a request for Mr Kouwenhoven's extradition. Had
that police officer, prior to receipt
of the request, learned that Mr
Kouwenhoven planned to flee the country, he could have been arrested
without a warrant and taken
before a magistrate to be dealt with
under s 7 of the Act.
[20]
Section 60(6) of the CPA is of even less
assistance. It deals with bail and lists factors to be considered by
a court in considering
whether there is a likelihood that the
accused, if released on bail, will attempt to evade his or her trial.
One of these is whether
the extradition of the accused could readily
be effected if they fled across the borders of South Africa in order
to evade trial.
This is only concerned with whether South Africa
would be able to extradite the person to face trial in this country,
not with
extradition from this country to another.
[21]
The provisions of the Act are likewise of
no assistance in regard to whether for the purposes of s 310 of
the CPA the enquiry
is a criminal proceeding. The two references to
'criminal proceedings'
[28]
clearly refer to criminal proceedings by way of a prosecution in
South Africa. That does not assist in answering the pertinent
question of whether the extradition enquiry itself is a criminal
proceeding. The extradition enquiry provisions are self-contained
in
the Act and require no cross-reference to the CPA. It was not
submitted that because they are not conducted under the CPA, but
under a separate statute, that disqualifies them from being criminal
proceedings for the purposes of s 310.
[22]
Those sections mentioned in argument were
unhelpful. The fact that s 9(2) says that the enquiry shall
proceed in the manner
of a preparatory examination identifies the
procedure to be followed, not the nature of the proceedings, and more
especially not
whether it is a criminal proceeding in the same way as
a preparatory examination is a criminal proceeding. But the fact that
it
proceeds in the same way as a preparatory examination is not
inconsistent with it being a criminal proceeding.
[23]
Counsel relied on s 13(4) of the Act
dealing with the release on bail pending an appeal of someone after
they have been held
to be extraditable.
[29]
Stress was placed on the incorporation
mutatis
mutandis
of certain provisions of the
CPA dealing with bail, for which purpose references to the accused
are deemed to refer to the person
being released on bail. But that
adds nothing to the fact that the relevant sections apply
mutatis
mutandis
, that is, with the changes
necessary to the context. The deeming is an example of a belt and
braces approach to drafting a statute
and nothing more. It has no
effect on the issue before us.
[24]
The last textual argument advanced on
behalf of Mr Kouwenhoven was that s 13 provides for an appeal by
the person sought to
be extradited and no-one else.
[30]
This begs the question of whether it was necessary to do so. The
response to the argument was that it was unnecessary to provide
for
such an appeal in the Act, because the right of appeal on questions
of law already existed under s 310 of the CPA as it
had under
its predecessor, s 104 of the MCA. The converse argument, that
appealed to the high court in
Paz
[31]
and in this case, that it would be absurd for Parliament not to have
provided for a right of appeal against a discharge on a legal
issue
at the end of an enquiry, is circular as it assumes that those who
drafted the Act and Parliament considered the necessity
for such an
appeal. The inclusion of s 13 merely enables a person found to
be extraditable at the end of an enquiry to challenge
that decision
on both the facts and the law without having to bring
habeas
corpus
proceedings. It says nothing
about the nature of the enquiry itself.
The
nature of extradition proceedings
[25]
In the absence of any direct textual
indications of the position, resolving this issue requires a close
examination of relevant
context. The procedural similarities between
a preparatory examination and an extradition enquiry have already
been noted. To those
must be added that an extradition enquiry is
characterised by a number of features that are encountered in a
criminal trial. It
commences with the arrest of the accused. The
arrested person must be brought before a court as soon as possible.
They are then
entitled to apply for bail. If admitted to bail their
position is the same as any person awaiting trial. The proceedings
continue
with evidence being led by the DPP's representative, which
is subject to cross-examination. The person whose extradition is
sought
may lead evidence. At the end of the enquiry they are either
committed to prison pending the decision of the Minister on whether
they should be extradited, or discharged. There are therefore
substantial similarities between a conventional criminal trial and
an
extradition enquiry.
[26]
These similarities caused Howie
JA to say in
McCarthy
:
[32]
'Extradition
proceedings are, in substance, in the nature of criminal proceedings.
The
arrest, detention and committal provisions of the [Extradition] Act
carry obvious implications adverse to the right to liberty,
to the
presumption of innocence which is basic to the criminal law and to
any such right which the accused may have to be in this
country and
to remain here.'
This
passage was cited by the Constitutional Court in
Harksen
[33]
with the additional comment that:
'Extradition
is in substance a criminal proceeding.'
[27]
The justification for extradition was pithily
articulated in the following way by Sachs J in
Quagliani
:
[34]
'
The
Act furthers the criminal justice objectives of ensuring that people
accused of crime are brought to trial and that those who
have been
convicted are duly punished.'
When
criminals leave a country in order to escape the criminal law,
extradition is an essential step in the criminal process in
that
State to secure their return to face trial and, if convicted,
punishment. The connection between extradition and the enforcement
of
the criminal law is direct and close. The extradition enquiry is not
directed at determining the guilt or innocence of the person
concerned, but at an anterior question, namely, whether they should
stand trial for their alleged crimes in the courts of the requesting
country.
[35]
[28]
In the majority judgment in
McCarthy
Van Heerden JA explained that:
[36]
'In
general the reason why State A agrees in an extradition treaty to
assist State B to enforce the criminal law of the latter in
regard to
crimes committed within its jurisdiction is precisely because State B
accepts a reciprocal obligation. In construing
legislation of State
A applying to extradition treaties too much emphasis should therefore
not be placed on the fact that
in proceedings under such legislation
State A is not enforcing its own criminal law but is assisting State
B to enforce the latter's
penal law.'
There
seems to me to be little difference between enforcing one's own
criminal law and enforcing the criminal law of another country
when
deciding whether extradition enquiries are criminal proceedings. The
individual is an accused person in both. It is merely
the identity of
the prosecutor and the identity of the court that will try them that
is different
[29]
At the outset of the discussion whether the
DPP was a litigant in extradition proceedings for the purpose of Rule
19 of the Constitutional
Court Rules in
Robinson
,
[37]
Yacoob J said:
'There
can be no doubt that extradition proceedings are sui generis and
that there are fundamental differences between extradition
proceedings and criminal proceedings. It can therefore not be
gainsaid that the DPP is not a party to extradition proceedings
in
the same way in which it participates in criminal proceedings.
The role of the state representative in criminal proceedings
is
different to that in extradition proceedings.'
This
does not assist the argument for Mr Kouwenhoven. Yacoob J was
contrasting extradition proceedings with a criminal trial. He
was not
concerned with the definition of criminal proceedings in the CPA.
[38]
That becomes clear later in the discussion when he cited with
approval the passage from Van Heerden JA's judgment in
McCarthy
quoted
in paragraph 28.
[30]
These judicial pronouncements are all
consistent with an extradition enquiry being different from a
criminal trial. Properly analysed
extradition enquiries, although a
precursor to a criminal trial, are nonetheless appropriately
characterised as criminal proceedings.
As Wunsh J pointed out in
Paz
,
[39]
the House of Lords had considered
[40]
the identical question of whether extradition proceedings were a
'criminal cause or matter', when determining whether the dismissal
of
a
habeas corpus
petition was appealable to the Court of Appeal.
[41]
In the principal speech, Viscount Simon LC said:
[42]
'
As
regards the right to appeal, it has been consistently held that there
is no right of appeal from the refusal of the writ in extradition
proceedings:
Ex
p Woodhall
,
or in proceedings under the Fugitive Offenders Act 1881:
R
v Brixton Prison
(
Governor
)
,
Ex p Savarkar
.
It will be observed that these decisions, which I accept as correct,
involve the view that the matter in respect of which the
accused is
in custody may be “criminal” although he is not charged
with a breach of our own criminal law; and (in the
case of the
Fugitive Offenders Act 1881) although the offence would not
necessarily be a crime at all if committed here.
It
is the nature and character of the proceeding in which habeas
corpus is sought which provide the test. If the matter
is one
the direct outcome of which may be trial of the applicant and his
possible punishment for an alleged offence by a court
claiming
jurisdiction to do so, the matter is criminal.
'
(Emphasis added.)
Mr Amand had
been arrested in order to be handed over to the Dutch military
authorities on a charge of desertion. His failed
habeas corpus
petition was held to have been a criminal cause or matter.
[31]
Shortly after the decision in
Paz
the House of Lords again had cause to
examine what constitutes a criminal cause or matter.
[43]
It was a case involving restraint orders granted under English
legislation in support of a forfeiture order made by a United States
court after the conviction of the accused in a criminal prosecution.
Restraint orders were granted provisionally in the High Court,
but
subsequently discharged. On appeal to the Court of Appeal they were
reinstated. On further appeal to the House of Lords the
appellants
contended that the orders had been discharged in a criminal cause or
matter and, for that reason, the Court of Appeal
was not entitled to
hear an appeal against the order discharging them or reinstate them.
The House rejected the argument and held
that the forfeiture
proceedings created a civil debt, even though the order arose out of
a criminal trial.
[44]
Lord Hoffmann, who made the principal speech, explained that the
passage quoted above from Viscount Simon's speech did not mean
that
every order made in the course of a criminal trial would be made in a
criminal cause or matter. The emphasis lay on the nature
and
character of the proceedings and the final sentence from that passage
was merely an illustration of the principle.
[45]
The
statutory history
[32]
Where the statutory picture has altered
over time, it is helpful to examine the history in order to
contextualise the current state
of the law.
[46]
One can conveniently start in 1944 with the MCA containing s 104
and the right of appeal by way of case stated in criminal
proceedings. At that time our law governing extradition was to be
found in two English statutes, namely, the British Extradition
Act
[47]
as amended up to 1906 and the British Fugitive Offenders Act.
[48]
These dealt respectively with extradition between Britain and her
colonies on the one hand, and foreign states on the other, and
extradition between the United Kingdom and her colonies and
possessions
inter se
.
[33]
Under the BEA the procedure leading
to the surrender of a fugitive criminal was that they should first be
arrested on a warrant
issued by a police magistrate or justice of the
peace pursuant to an order of the Secretary of State or on evidence
provided to
the magistrate or justice.
[49]
They would then be brought before a magistrate who would enquire into
the case in the same manner as if the prisoner had been brought
before the court charged with an indictable offence committed in
England. If the evidence related to an extraditable crime, not
of a
political character, and would have justified the committal of the
prisoner for trial for that offence if committed in England,
the
magistrate would commit the prisoner to prison, but otherwise
discharge him or her.
[50]
The magistrate would then send a certificate of committal to the
Secretary of State who would determine whether the person should
be
extradited.
[51]
[34]
It is apparent that the provisions of ss 5,
8, 9, 10 and 11 of the Act were modelled upon the provisions of the
BEA, which they
replaced. The committal provisions of the BEA were
replaced by the preparatory examination provisions of the various
Criminal Procedure
Acts in South Africa.
[52]
When one turns to the FOA the procedures were more direct and in line
with those that apply in relation to associated states under
the Act.
As we are not concerned with an extradition at the instance of an
associated state, it is unnecessary to set out the parallels.
In
effect the Act, which came into effect shortly after South Africa was
declared a republic, replaced the old imperial statutes
with a
domestic statute to substantially the same effect. There was in
existence a functioning system of extradition and extradition
agreements and there was no reason to make major alterations to it.
All that was required was to repatriate the extradition system
by
enacting domestic legislation.
[35]
Reverting to the BEA, if a magistrate
committed a person to prison after an enquiry, they were obliged to
inform them of their right
to apply for a writ of
habeas
corpus
.
[53]
And, as we saw in the previous section of this judgment, the English
courts have consistently held that an unsuccessful
habeas
corpus
petition from a committal in
extradition proceedings is not appealable to the Court of Appeal,
because extradition proceedings are
a criminal cause or matter. When
the BEA and the FOA became part of South African law, prior to 1910
and on Union,
[54]
it had been authoritatively held that an extradition enquiry under
these statutes was a criminal cause or matter.
[36]
That raises the question whether a South
African court would have been bound to hold likewise if the question
whether extradition
proceedings were criminal proceedings had been
raised in this country prior to 1962 and the replacement of these
United Kingdom
statutes by the Act. That question was not argued
before us and I would be hesitant to express a final view on it
without the benefit
of full argument.
[55]
It suffices, I think, to say that the authorities to which reference
has been made in the previous section make it clear that had
that
question arisen between 1944 and 1950, before appeals to the Privy
Council were abolished,
[56]
it would have been held that an extradition enquiry was a criminal
proceeding. Such a conclusion meant that if a person had been
discharged on a point of law at the end of an extradition enquiry,
the magistrate could have been required to state a case for
appeal in
terms of s 104 of the MCA.
[37]
There is nothing in the subsequent repeal
of the BEA and FOA and their replacement by the Act, or in the repeal
of s 104 of
the MCA and its re-enactment as s 310 of the
CPA, to suggest that any right of appeal vested in the Attorney
General prior
to 1962, arising from the discharge on a point of law
of the person brought before an extradition enquiry, was to be
removed. Such
repeals by implication are not lightly inferred.
[57]
Conclusion
[38]
Drawing all these threads
together I conclude that an extradition enquiry is a criminal
proceeding for the purposes of s 310
of the CPA. I agree with
Viscount Simon LC and Lord Hoffmann that it is the nature and
character of the proceedings that determines
whether they are
criminal proceedings. An extradition enquiry shares many common
features with criminal trials. The procedural
model in the United
Kingdom was committal proceedings and, in this country, it was the
preparatory examination. Extradition enquiries
under the pre-1962
legislation were criminal proceedings and there was a right of appeal
against discharges on points of law under
s 104. There is no
indication that the Act removed this right.
[39]
Viscount Simon's example seems
apposite in this context and is worth repeating:
'
If
the matter is one the direct outcome of which may be trial of the
applicant and his possible punishment for an alleged offence
by a
court claiming jurisdiction to do so, the matter is criminal.
'
That
is similar to a suggested description of criminal proceedings put to
counsel in the course of the hearing, namely that they
are
proceedings directed at securing the presence of a person before a
court of competent jurisdiction in order for it to be determined
whether they were guilty according to law and for the imposition of
any sanction due upon conviction. Extradition proceedings undoubtedly
fall within this description.
[58]
They are criminal proceedings, but of a very special kind.
[59]
Their aim in this case is to have Mr Kouwenhoven brought back before
the Dutch courts in order to be compelled to serve his sentence.
[40]
For those reasons the decision by the
magistrate was appealable in terms of s 310 of the CPA and Mr
Kouwenhoven's appeal on
this point must fail. That is a satisfactory
conclusion, as otherwise a wrong decision by a magistrate on a matter
of law, resulting
in the person sought to be extradited being
discharged, could only be remedied on review under the principle of
legality, which
might create its own problems, not least considerable
delay in the extradition process. Instead, the DPP aggrieved by the
magistrate's
decision on a question of law can challenge it by way of
the case stated procedure. That also removes what would otherwise be
an
anomaly flowing from the right of appeal afforded under s 13
of the Act to the person whose extradition is sought. If their
committal is challenged on the basis that the magistrate erred in
law, the DPP is entitled to appear and defend that decision.
If the
appeal goes against the DPP, they can pursue an appeal before this
court and potentially the Constitutional Court to argue
the same
point of law. They can equally resist further appeals challenging the
magistrate's decision. It would be incongruous if
in the converse
situation the DPP could only challenge the magistrate's decision by
way of a review.
Procedure
for stating a case
[41]
The magistrate delivered her decision
discharging Mr Kouwenhoven on 21 February 2020 and on 5 March
2020 the DPP delivered
a request that she state a case on certain
questions of law. The magistrate eventually sent a draft stated case
to the DPP on 9
July 2020 and after receiving some representations
delivered a signed stated case to the DPP on 10 July 2020. Pursuant
to that
stated case the DPP filed a notice of appeal in terms of
s 311 of the CPA and served it upon Mr Kouwenhoven's
representatives.
Neither they, nor their client had been aware that
the DPP intended to do this nor were they afforded any opportunity to
participate
in the process of preparing the stated case.
[42]
Mr Kouwenhoven contended that he had
a right to be informed that the DPP had requested the magistrate to
state a case and to make
representations on how that case should be
stated. He claimed that he had those rights in consequence of his
right to a fair trial
under s 35 of the Constitution,
alternatively his right to a fair public hearing under s 34 of
the Constitution, alternatively
the principles of natural justice and
the right to be heard. He based this upon the proposition that ex
parte communication between
the representatives of one party and a
judicial officer performing a judicial function is improper, and that
a party to judicial
proceedings must be permitted to make
representations before a judicial officer exercises a judicial power.
[43]
The DPP is entitled under s 310(1),
which is quoted in paragraph 5 of this judgment, to 'require' the
magistrate to state a
case for the consideration of the appeal court,
with a view to an appeal on the question of law that has led the
magistrate to
decide the case in favour of the accused.
The
process to be followed in preparing the stated case is set out in
rules 67(11) to (13) of the magistrates' courts rules. These
provide
as follows:
'
(11) A
director of public prosecutions or other prosecutor who contemplates
an appeal under
section 310
of the
Criminal Procedure Act, 1977
,
shall, within 20 days after the conclusion of the criminal
proceedings, in writing request the judicial officer to state a case.
(12)(
a
) Upon
receipt of the request referred to in sub-rule (11), the registrar or
clerk of the court shall prepare a copy
of the record of the case,
including a transcript thereof if it was recorded in accordance with
the provisions of
rule 66
(1), and then place the record
before the judicial officer who shall within 15 days thereafter
furnish a stated case to the
registrar or clerk of the court who
shall transmit a copy thereof to the director of public prosecutions
or other prosecutor, as
the case may be.
(
b
) The
stated case contemplated in paragraph (
a
) shall be divided
into paragraphs numbered consecutively and shall be arranged in the
following order—
(i)
the judicial officer’s findings of fact in so far as they are
material
to the questions of law on which decision in favour of the
appellant was given;
(ii)
questions of law; and
(iii)
the judicial officer’s decision on such questions and his or
her reasons therefor.
(13) The
director of public prosecutions or other prosecutor may, within 15
days after the receipt by him or her of the
stated case, deliver
notice of appeal against the decision on questions of law.'
[44]
The
rules reflect the fact that the DPP takes the initiative in asking
the magistrate to state a case. The notice to the magistrate
must set
out the questions of law that the DPP wishes to form part of the
case. Otherwise the magistrate would not know what they
were. On
receipt of the DPP's notice the clerk of the court must prepare a
copy of the record and place it before the magistrate,
who
shall
within 15 days thereafter furnish a stated case to the clerk for
transmission to the DPP. The magistrate's role is to formulate
the
material findings of fact on which the questions of law were decided.
This is akin to preparing a judgment. Neither the DPP
nor the accused
plays any part in the formulation of those findings of fact. That is
entirely a matter for the magistrate. The
court on appeal is not
bound by those facts, although they will usually be regarded as
correct.
[60]
The case stated must include the questions of law. Otherwise the
appeal court cannot know that the facts stated were those on which
the question of law was determined. The stated case stands as a
statement of the legal issues to be canvassed on appeal and the
facts
relevant to those issues. If the questions of law are omitted from
the stated case, the problem cannot be overcome by setting
out
questions in the notice of appeal.
[61]
The reason is that the appeal court cannot then know whether the
factual findings in the stated case are the findings the magistrate
made in relation to the question or questions of law.
[45]
The language of
s 310(1)
does not
suggest that the magistrate has a discretion either to state a case
or to refuse to do so, or to determine the terms of
the questions of
law that the DPP wishes to have stated.
[62]
The purpose of stating a case is to enable the DPP
to decide whether to appeal on a question of law. The questions of
law are determined
by the DPP. Otherwise, the peculiar situation
could arise where the questions of law in the stated case did not
reflect the issues
that the DPP wished to argue on appeal. If the
magistrate refused to state a case, because they thought the
suggested questions
were not questions of law, or thought that a
different legal issue had been decided, there is no provision
entitling the DPP to
appeal against that decision. Contrast this with
a refusal by a judge to reserve a question of law under
s 319(1)
of the CPA, or to reserve the question the DPP wishes to have
reserved. That is appealable under
s 319(5).
Section 310
has no
equivalent. The obvious reason is because the magistrate does not
have any discretion in that regard
[63]
and is not responsible for formulating the questions of law.
[46]
The
accused, or in this case a person whose extradition is being sought,
has no role to play in the formulation of the question
to be
reserved. If the decision had been adverse to Mr Kouwenhoven,
the DPP could not have claimed a right to participate
in the
formulation of his grounds of appeal under s 13 of the Act. This
has nothing to do with fairness to the other party.
It has to do with
the rights of a disappointed litigant wishing to appeal. Where they
are entitled to do so, they are also entitled
to formulate the
grounds of their appeal in terms they choose, not terms suggested by
their opponent, or dictated by the court
whose decision will be the
subject of the appeal. This is so with any litigant formulating their
grounds of appeal including the
DPP. Neither the court against whose
decision the appeal lies, nor the other party, decides what is to be
argued. Section 310
gives the DPP an untrammelled right to
require a case to be stated on a question of law and thereafter to
appeal.
[47]
When
the DPP invokes s 310 there is no basis for the accused to receive
notice or have any input in the preparation of the
stated case. They
may believe that the question is not a question of law – a
matter of some difficulty
[64]
– and may argue successfully on appeal that it is not.
[65]
They may contend, as indeed Mr Kouwenhoven has contended, that an
appeal under s 310 is not available in extradition enquiries.
As
a reason why he was entitled to notice and to be heard on the
formulation of the stated case, Mr Kouwenhoven claimed in his
founding affidavit that the manner in which the case was formulated
meant that he could not raise the two arguments on which the
magistrate held against him. These were that that the State had
failed to prove that the Netherlands was a party to an extradition
treaty with South Africa and that the required documents in terms of
Article 2(1) read with Article 12 of the European Convention
on
Extradition were not before the enquiry.
[48]
That
contention, advanced on legal advice, was incorrect. If the
magistrate's decision had to be upheld on a different legal
ground
emerging from the record, there was nothing to prevent his legal
representatives advancing that ground. As Ogilvie-Thompson
AJA said
in
Flats
Milling
:
[66]
'
Port's
case
was somewhat unusual in that it was there claimed that the accused
was entitled to an acquittal upon legal grounds other than
those
embraced in the 'question of law' upon which the magistrate had given
a decision in accused's favour. The legal grounds so
sought to be
advanced before the Court of appeal had not been the subject of
decision by the magistrate, and it is not entirely
clear from the
report whether such legal grounds were apparent from the stated case.
In circumstances such as these, the Court
of appeal must necessarily
exercise its discretion having due regard to the balance of
convenience, the preparedness of counsel
to argue the additional
questions of law, and suchlike practical considerations. Subject to
the considerations just mentioned
however,
if
the circumstances reveal that the accused is entitled to be acquitted
on some question of law other than the one decided in his
favour by
the magistrate and appealed against by the Attorney-General, the
latter question is, so far as concerns the conviction
or acquittal of
the accused, entirely academic and, as such, the Court of appeal
is not obliged by the provisions of sec.
104 to give a decision upon
it.
' (Emphasis
added.)
The
court also held that if an answer to the question of law would not
result in a different outcome, the appeal would be struck
from the
roll. If on the facts the decision in favour of the accused would
remain the same, the court would not entertain the appeal
on
questions of law. There is nothing unusual about this. It has always
been permissible to defend a favourable judgment on grounds
other
than those on which the litigant achieved success in the lower
court.
[67]
Had the legal position been correctly appreciated and the additional
points argued on behalf of Mr Kouwenhoven, as should have
been the
case, the procedural problems to which I will advert at the end of
this judgment would not have arisen.
[49]
Once
the case has been stated the DPP has an opportunity to reflect, in
the light of the magistrate's factual findings, whether
to proceed to
lodge an appeal in relation to the question so stated. Until then
there is no appeal before any court. The magistrate's
findings of
fact may be such that it is apparent that the accused would have been
acquitted even if the point of law were to be
decided in favour of
the DPP. In that event the DPP will reconsider whether to appeal
because the question of law will be entirely
academic and the appeal
court will not determine it.
[68]
If the DPP decides to proceed with the appeal, in terms of s 309(2)
of the CPA the appeal is noted and prosecuted in accordance
with the
rules of court. In terms of Uniform Rule 51 (3) the DPP is
responsible for ensuring that all copies of the record are
properly
before the court. In practical terms therefore there is no difficulty
in the accused advancing arguments other than merely
defending the
decision of the magistrate.
[50]
In the
result there was no merit in this point and it was rightly rejected
by the high court. Taken together with the conclusion
on the point of
appealability under s 310, the result is that the appeal against
the dismissal of Mr Kouwenhoven's review
application must fail.
Section
3(1) of the Extradition Act
[51]
This
section is headed 'Persons liable to be extradited' and reads as
follows:
'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'
Mr
Kouwenhoven argued that the acts alleged to constitute the crimes of
which he was convicted by the Dutch court were all committed
in
Liberia and were therefore not committed 'within the jurisdiction' of
the Netherlands. Accordingly, he submitted that he was
not liable to
be extradited to the Netherlands in relation to such crimes. The
magistrate upheld the point leading to his discharge.
The high court
reversed the magistrate.
[52]
The
DPP argued that the magistrate's approach gave too narrow a meaning
to the expression 'within the jurisdiction', by confining
it to the
territorial area of a state's jurisdiction. Jurisdiction is a legal
concept, being the power that a court has to hear
and decide cases
brought before it.
[69]
That power is not confined to the physical area within which a state
exercises jurisdiction, but extends to those matters and persons
in
relation to which the courts of that state are entitled to adjudicate
cases. A crime committed 'within the jurisdiction' of
a state is
therefore a crime that, under the domestic laws of that state, its
courts are empowered to try and either acquit, or
convict and
sanction, the accused.
[53]
Mr
Kouwenhoven's primary argument was that the second construction was
not open on the language of the section read in context.
The
magistrate appears to have understood the submission to be that on
every occasion where reference is made in the Act to matters
'within
the jurisdiction' of the requesting state it is clearly used in the
narrow sense of 'within the territorial jurisdiction'.
The argument
in this court was more nuanced. It was that this was the preferred
grammatical interpretation, and was supported by
the Afrikaans text,
which throughout uses the expression 'regsgebied' as the equivalent
of 'jurisdiction'.
[54]
Section
3(1) deals with persons liable to be extradited under an extradition
agreement. The conclusion of such agreements
is dealt with in s 2(1).
They read as follows:
'2(
1) The
President may, on such conditions as he or she may deem fit, but
subject to the provisions of this Act—
(
a
)
enter into an agreement with any foreign State, other than a
designated State, providing for the surrender on a reciprocal basis
of persons accused or convicted of the commission within the
jurisdiction of the Republic or such State or any territory under
the
sovereignty or protection of such State, of an extraditable offence
or offences specified in such agreement …
3(1) 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."
[55]
Both
sections use the expression 'committed within the jurisdiction' to
identify the crimes that may give rise to a person's extradition
and
that may form the basis for an extradition agreement. It is
convenient to start with that expression in s 2(1), as the
existence of a lawfully concluded extradition agreement forms the
basis for the extradition in this case. If Mr Kouwenhoven's
contention is correct then some at least of the provisions of that
extradition agreement provide for extradition in circumstances
not
permitted by the Act.
[70]
[56]
The
construction of the phrase 'within the jurisdiction' in s 2(1)
governs its construction elsewhere in the Act. One portion
of s 2(1),
not found in s 3(1), was relied on in argument as affecting the
interpretation of the contentious words. For
the sake of coherence in
the narrative it is therefore preferable to address s 2(1) at
the outset, knowing that the conclusion
in that regard will resolve
the issue of the scope of s 3(1). The question to be determined
is what is meant by saying that
a crime was committed 'within the
jurisdiction' of the requesting state. The relative clause 'within
the jurisdiction' is an adverbial
clause relating to the commission
of the extraditable offence. It is not an adjectival clause
qualifying the words 'accused or
convicted'. The concern is therefore
with the commission of the offence and particularly with the acts
constituting the crime.
Do the words relate to the place where those
acts were committed or the power of the courts of the requesting
country to adjudicate
their criminality in accordance with its
domestic laws?
[57]
The
words 'within the jurisdiction' are capable of being construed as
restricted to the territorial jurisdiction of a state, but
limiting
them in that way gives rise to difficulties. The first is the obvious
one that this purpose would have been achieved more
clearly and
directly by using the word 'territory' instead of the word
'jurisdiction'. There would then be no doubt about the meaning.
That
was the case with the treaty considered by this court in
Devoy
.
[71]
It referred to crimes committed 'within the territory'. For that
reason this court held that extradition on a count alleging a
conspiracy outside the territory of Malawi could not be ordered.
[72]
Why then use the expression 'within the jurisdiction' which
introduced a legal concept, unless it was that legal concept of the
power of courts to deal with criminal acts that was being referred
to?
[58]
The
second problem arises in relation to crimes committed on the high
seas and outside the jurisdiction of any nation state. These
are
quintessentially crimes that are committed extra-territorially and
crimes which may give rise to a need to extradite the offender
from a
foreign country where they have taken refuge. I have in mind not only
the obvious example of piracy, but also crimes committed
on board
vessels while at sea. Piracy is dealt with under the Geneva
Convention on the High Seas,
[73]
to which South Africa acceded on 9 April 1963. Article 19 provides
for universal jurisdiction in respect of seizure and prosecution
of
acts of piracy on the high seas. It reads as follows:
'On
the high seas, or in any other place outside the jurisdiction of any
State, every State may seize a pirate ship or aircraft,
or a ship
taken by piracy and under the control of pirates, and arrest the
persons and seize the property on board. The courts
of the State
which carried out the seizure may decide upon the penalties to be
imposed, and may also determine the action to be
taken with regard to
the ships, aircraft or property, subject to the rights of third
parties acting in good faith.'
There
are currently sixty-three State parties to this Convention.
[74]
[59]
States
exercise jurisdiction over other crimes committed at sea, or on board
vessels, on at least two bases, namely, the law of
the flag under
which the vessel sails or citizenship of either the criminal or the
victim. By way of illustration, s 372(1) of
the Merchant Shipping Act
57 of 1951 provides for criminal jurisdiction over South African
citizens for crimes committed on the
high seas on board a South
African registered vessel and in any foreign port, whether on a South
African or a foreign registered
vessel. It also provides for criminal
jurisdiction over non-South African citizens for crimes committed on
board South African
registered vessels. It reads:
'(1) If
any person—
(
a
)
being a South African citizen, is charged with having committed an
offence on board a South African ship on the high seas, or
on board a
South African ship in any port outside the Republic, or on board any
ship (other than a South African ship) irrespective
of whether he
belongs to that ship or not; or
(
b
)
not being a South African citizen is charged with having committed an
offence on board a South African ship on the high seas,
and
that person is found within the area of jurisdiction of any court in
the Republic which would have had jurisdiction to try the
offence if
it had been committed within the said area, that court shall have
jurisdiction to try the offence.'
If
extradition is impermissible, unless the offence is committed within
the territorial jurisdiction of the requesting state, it
would be
excluded in these instances. But that would undermine
long-established practice in international law, which has always
recognised the right of states to exercise jurisdiction in cases such
as these and where appropriate seek the extradition of offenders.
[60]
A
third problem relates to other instances where states exercise
criminal jurisdiction in respect of extra-territorial activities.
At
the very least in South Africa this includes the crime of
treason,
[75]
which is an extraditable offence, but may extend to other crimes. No
fewer than five different principles are recognised
in different
jurisdictions in this regard. In summary they are the territorial,
nationality, passive personality, protective and
universality
principles. Under the territorial theory nations claim jurisdiction
over crimes committed within their borders. Under
nationality they
claim jurisdiction based on the nationality of the perpetrator.
[76]
Under passive personality they base liability on the nationality of
the victims of the crime. The protective principle covers treason
and
any other crime particularly damaging to specific national interests.
Universal jurisdiction deals with crimes like piracy,
crimes against
humanity, war crimes, torture and slavery.
[77]
Considerable difficulties arise in adhering to a strict territorial
principle
[78]
and the result is that most, if not all, states sanction departures
from it. We have not been referred to any rule of international
law
that outlaws extradition on the basis of such extended grounds of
jurisdiction. It seems more likely that if the requesting
state is
claiming an exorbitant jurisdiction in the eyes of the state
receiving the request, it will be refused at the political
stage of
the process.
[79]
[61]
The
construction advanced on behalf of Mr Kouwenhoven would have the
result that South Africa would be unable to conclude extradition
agreements under which it could seek the extradition of anyone for
piracy, or a South African citizen for committing a crime on
board a
South African registered vessel. A simple example illustrates the
difficulty. A crew member of a fishing vessel kills another
crew
member while they are at sea. The vessel puts into a foreign port to
obtain medical assistance for the victim, or to discharge
the body
for repatriation and burial. The port is in a state with which South
Africa has an extradition agreement and the killer
manages to flee
the ship while in port. The crime would not have been committed
within the territory of South Africa and could
not on the suggested
construction result in the killer's extradition. That would be a
serious inroad into the scope of extradition
and would be a
surprising result, given that the legislature would presumably have
been aware of the need to deal with such crimes
when the Act was
being drafted. Section 16 of the BEA dealt expressly with crimes
committed at sea and the schedule to that Act
listed four crimes that
could only be committed on the high seas,
[80]
including piracy, assault, scuttling a vessel or mutiny. Section 33
of the FOA likewise dealt with crimes committed at sea.
The problem
could hardly have been overlooked.
[62]
Conversely,
if the physical acts constituting the crime occurred outside the
territorial area of the requesting states, South Africa
would be
unable to extradite individuals such as Mr Kouwenhoven, where
requesting states were exercising criminal jurisdiction
unconfined by
the territorial principle. That would be so even in regard to crimes
where our courts would exercise a similar extended
jurisdiction.
Examples of such an extended jurisdiction are to be found in s 6
of the Prevention and Combating of Torture
of Persons Act 13 of
2013;
s 5
of the
Prevention and Combating of Corrupt Activities
Act, 12 of 2004
and
s 12
of the Prevention and Combating of
Trafficking in Persons Act 7 of 2013. At a practical level and having
regard to the recognition
by the Constitutional Court of the reasons
for extradition and the expanding reach of international criminal
activities, these
are powerful contextual reasons for not accepting
the construction put forward on Mr Kouwenhoven's behalf.
[63]
Mr
Bishop, who argued this part of the appeal on behalf of
Mr Kouwenhoven, referred us to the additional words
'
or
any territory under the sovereignty or protection of such State'
appearing in s 2(1) after the words 'within the jurisdiction
of
the Republic or such State'. He submitted that this was an express
reference to a physical territory and that it pointed towards
a
similar construction of the reference to 'within the jurisdiction'.
In my view it points in the opposite direction, because of
the
contrast between the references to 'the jurisdiction' and
'territory'. The purpose of these additional words was to enable
an
extradition treaty to cover territories that were not separate
sovereign states, but subordinate to another sovereign state.
When
the Act was passed there were very real examples of such territories.
On South Africa's border there was present day Botswana
[81]
and elsewhere, mainly in Africa, there were other British
protectorates where questions of extradition prior to 1962 would have
fallen under the FOA. As these were not sovereign states South Africa
could not conclude extradition agreements with them, but
could secure
extradition to and from them by way of this extension. However, as
they were not sovereign states no question of their
exercising
extra-territorial jurisdiction would arise. The provision is now
largely academic.
[64]
There
is no need for me to dwell on the other provisions where the
expression 'within the jurisdiction' occurs,
[82]
as they plainly bear the same meaning as the expression does in s
2(1) of the Act. It was not suggested otherwise. The next reference
to jurisdiction is to be found in s 9(1), which refers to the
person detained under a warrant of arrest or further detention
being
brought before a magistrate 'in whose area of jurisdiction' that
person has been arrested. The addition of the words 'area
of' before
'jurisdiction' make it clear that this is only concerned with the
specific territorial area over which the magistrate
exercises
jurisdiction. Interestingly, given the stress that counsel placed on
this in argument, the Afrikaans translation of 'area
of jurisdction'
is 'regsgebied', which is the same as the translation of
'jurisdiction' in 'within the jurisdiction'. The English
and
Afrikaans texts of statutes were signed alternately, so that the
signature is no indication of the language in which the statute
was
first drafted. If it was in English, there was a clear distinction
between 'area of jurisdiction' – a territorial reference
–
and 'within the jurisdiction' that was not recognised in the
Afrikaans version. If it was drafted in Afrikaans the differences
when translated into English are marked and suggest that a difference
of meaning was intended. For those reasons the reliance on
the
Afrikaans text was unhelpful.
[65]
Mr
Bishop's strongest linguistic argument was based on s 9(4) of
the Act,
[83]
which reads:
'
At
any enquiry relating to a person alleged to have committed an
offence—
(
a
) in
a foreign State other than an associated State, the provisions
of section 10 shall apply;
(
b
) in
an associated State—
(i) the
provisions of section 10 shall apply in the case of a
request for extradition contemplated in section 4 (1);
and
(ii) the
provisions of section 12 shall apply in any other case.'
The
submission was that committing an offence referred to the criminal
acts constituting the crime (the
actus reus
). The reference to
it being committed 'in' either a foreign state or an associated state
could only refer to the place where those
acts had been performed. It
was submitted that this made it plain that elsewhere the Act was
concerned with the territory of the
requesting state and not its laws
governing which crimes its courts could lawfully entertain.
[66]
There
is force in this submission, but when viewed in context it is
incorrect. Our cases have stressed that in the first instance
context
encompasses all of the other provisions of the statute
[84]
and secondly that, to the extent possible without unduly straining
the words, one endeavours to construe the different provisions
of a
statute in harmony with one another. For the reasons already
canvassed the other provisions of the Act, when referring to
crimes
committed within the jurisdiction of a foreign state, are more
consonant with that being a reference to the jurisdictional
authority
of those countries, rather than being restricted to their territorial
jurisdiction. That is supported by the contextual
factors to which I
have alluded.
[67]
Section
9(4) does not alter this. Its purpose is not to determine which
offences will be extraditable and may be encompassed
by an
extradition agreement. It performs the more mundane task of
distributing extradition matters between the procedures under
ss 10
and 12 of the Act. Cases involving foreign states are dealt with
under s 10 and those involving associated states
are dealt with
under the different procedure in s 12. In the case of an
associated state the role of magistrates, which is
derived from the
procedure under the FOA, is far greater, because they make the
decision whether the person brought before them
is to be surrendered.
The role of the magistrate under s 10 is more narrowly focussed
on determining whether the person is
extraditable, but the decision
whether they will be extradited then lies with the Minister. Giving a
provision directed at this
administrative task, the importance
suggested is reminiscent of the tail wagging the dog. Expressed
differently, the argument gives
greater weight to the preposition
'in' than it can safely bear.
[68]
In
my view there is no difficulty, linguistic or otherwise, in
understanding the references to offences being committed 'in'
either
a foreign state or an associated state, as being references to the
offences being committed in those states, if, in accordance
with the
law of those states, they are criminal offences triable by that
state's courts. That is where the offence is committed,
because it is
by the laws of that state that the crime is committed. Mr Kouwenhoven
has not been convicted in the Netherlands of
a crime committed
elsewhere. He has been convicted by a Dutch court of a crime under
Dutch law. It is in the jurisdiction of the
Kingdom of the
Netherlands that his crime was committed, notwithstanding that his
actions occurred elsewhere.
[69]
In
the various sections of the Act in which it appears, I consider the
expression 'within the jurisdiction' to mean that the
alleged crime
is one in relation to which the requesting state is entitled to
exercise its criminal jurisdiction to prosecute the
person whose
extradition is requested, determine whether they are guilty and, if
so, to impose a sanction. It is not constrained
by issues of
territoriality or considerations of whether the conduct alleged to
constitute the crime occurred within or outside
the territorial
boundaries of the requesting state. So long as its courts are vested
with authority to determine the question of
criminality it is within
the requesting state's jurisdiction for the purposes of these
sections. To the extent that
Carolissen
[85]
proceeded on the basis that territorial jurisdiction was required it
was incorrectly decided.
[70]
I have
reached that conclusion by way of a conventional exercise in
statutory interpretation. It is reinforced by the decision of
the
House of Lords in
Al-Fawaaz
.
[86]
That involved the extradition of three people to the United States
arising out of their conduct outside that country's territory.
There
was no dispute that if extradited the United States courts were
entitled under their law to exercise criminal jurisdiction
over them.
The point taken in resisting extradition was that the allegedly
criminal conduct had not occurred within the jurisdiction
of the
United States, because it had not occurred in its territory.
[71]
The
issue arose because in order for the extradition of the three to be
ordered they had to be 'fugitive criminals' in terms
of the
definition of that expression in s 26 of the BEA and the
offences with which they were to be charged had to be 'extradition
crimes' within the definition of that expression in the same section
of the BEA. These provisions were part of our law prior to
1962 and
the enactment of the Act. In relevant part the two definitions read
as follows:
'The
term 'fugitive criminal' means any person accused or convicted of an
extradition crime committed within the jurisdiction of
a foreign
state …
The
term 'extradition crime' means a crime which, if committed in England
or within English jurisdiction, would be one of the crimes
described
in the first schedule to this Act.'
As
already mentioned among the crimes in the first schedule to the BEA
were four offences that would ordinarily be committed outside
the
territorial jurisdiction of England.
[72]
The
unanimous view of their Lordships, each of whom gave a separate
speech, was that the meaning of the words 'within the jurisdiction'
in the definition of 'fugitive criminal' was not confined to the
territorial jurisdiction of the requesting state, but included
its
extra-territorial jurisdiction. My reasons set out above overlap in
many respects with those advanced by their Lordships in
their
speeches, but I am mindful that the language of the definition of
'extradition crime' had one significant difference from
the language
of the Act, in that it referred to and contrasted the words
'committed in England' with the words 'or within English
jurisdiction'. That contrast played an important role in the speeches
of their Lordships.
[87]
In view of that difference I have preferred to set out my own
reasoning in accordance with the approach in this country to
statutory
interpretation, rather than adopt the views of another
court. But notwithstanding the important distinguishing feature I
have mentioned,
the broad thrust of the speeches in that case is
consistent with and supportive of the conclusion I have reached.
[73]
That
conclusion is consonant with the purpose of extradition as
articulated in the judgments of the Constitutional Court. Sachs
J
explained in
Quagliani
:
[88]
'
Transnational
mobility of people, goods and services, as well as new technological
means, have contributed to increased mobility
of criminals. La Forest
J states that—
“
[the
extradition process] strengthens the law enforcement agencies within
the state requesting the surrender by reducing the possibility
of its
criminals escaping. And it is to the advantage of the state to which
a criminal has escaped, for no country desires to become
a haven for
malefactors.”
The
Act furthers the criminal justice objectives of ensuring that people
accused of crime are brought to trial and that those who
have been
convicted are duly punished. The need for effective extradition
procedures becomes particularly acute as the mobility
of those
accused or convicted of national crimes increases.'
[74]
To that can be added the following passage
from the judgment in
Geuking
:
[89]
'
The
need for extradition has increased because of the ever-growing
frequency with which criminals take advantage of modern technology,
both to perpetrate serious crime and to evade arrest by fleeing
to other lands. The government of the country where the criminal
conduct is perpetrated will wish the perpetrator to stand trial
before its courts and will usually offer to reciprocate in respect
of
persons similarly wanted by the foreign State. Apart from
reciprocity, governments accede to requests
for
extradition from other friendly States on the basis of comity.
Furthermore, governments do not wish their own countries to be,
or be
perceived as safe havens for the criminals of the world.'
[75]
The interpretation of ss 2(1) and 3(1)
set out above is wholly consistent with the long-established and
beneficial purposes
of extradition as explained in these passages. By
contrast the interpretation contended for on behalf of Mr Kouwenhoven
negates
that desirable purpose. In the result all relevant factors
point to the conclusion that the appeal against the high court's
decision
upholding the DPP's appeal against the decision of the
magistrate to discharge Mr Kouwenhoven, must fail.
[76]
The order
[77]
[78]
The
outcome of the appeal in the review proceedings is straightforward.
No order for costs was sought against Mr Kouwenhoven on
the basis
that it is inappropriate to make orders for costs in criminal
proceedings. Accordingly, the order in those proceedings
is that:
'The
appeal against the dismissal of the application under
case no 181/2020 is dismissed.'
[79]
The
approach adopted by the high court to the questions in the stated
case and the disposal of the appeal created procedural difficulties.
The questions of law in the stated case were the following:
'4.1
Is a judicial officer conducting an extradition enquiry empowered to
consider the question of
the jurisdiction of the requesting state or
is this a question for consideration by the executive, specifically
the Minister of
Justice and Constitutional Development?
4.2
Is jurisdiction a relevant consideration in an extradition enquiry
where the requested person
has already been convicted by the
requesting court?
4.3
Is the reference to jurisdiction in the Extradition Act confined to
the territorial jurisdiction
of the requesting state only or does it
include extraterritorial jurisdiction?
[80]
To
describe these as ineptly drafted does them no disservice. The first
two were not matters on which the magistrate had expressed
any
opinion whatsoever, much less made a decision in favour of Mr
Kouwenhoven leading to his discharge. The third one lacked a
reference to the relevant section or sections of the Act in which the
word 'jurisdiction' was used in a manner giving rise to the
question
on which the appeal was based. However, I am prepared to accept that
this omission was overcome by asking whether jurisdiction
was
confined to territorial jurisdiction or extended to extraterritorial
jurisdiction. On this legal issue the magistrate had made
a decision
in favour of Mr Kouwenhoven leading to his discharge.
[81]
The
high court should have held that the first two questions were not
properly stated and made no other ruling on them. Instead
it held,
for other reasons, that neither required an answer. Whether that is
ever permissible in relation to questions properly
asked by way of a
stated case, except where the answer to a prior question renders
later ones academic, is doubtful. Be that as
it may, having said that
the questions did not require an answer, the court went on to say in
relation to both of them 'Insofar
as an answer may be necessary' and
proceeded to provide an answer. What is to be made of these answers?
Pursuant to the appeal
being upheld on the third question the matter
was remitted to the magistrate to finalise 'in accordance with the
answers given
to the questions posed in the stated case'. That
suggests that the magistrate was obliged to engage with the answers
proffered
by the court in this unsatisfactory way. The short answer
to this problem is that they were in their entirety obiter dicta and
must be disregarded by the magistrate in dealing with the remittal.
[82]
The
high court's answer to the third question was that:
'…the
requirement in s 3(1) of the Extradition Act that the offence
should be committed "within the jurisdiction"
of the
requesting State is a requirement that the requesting State should
have jurisdiction to try the person in question for the
offence,
including where applicable the jurisdiction to try such person for an
offence committed outside the territory of the requesting
State'
Following
upon that answer it made the following order:
'(a)
The three questions of law posed in the stated case are answered as
are set out in paras 86-88 of this judgment.
(b)
Because of the answer given to the third question, the appeal
succeeds. The order of the court
a quo
discharging the
respondent in the appeal, Mr Augustinus Petrus Maria Kouwenhoven, in
terms of s 10(3) of the Extradition
Act 67 of 1962 is set aside,
and the matter is remitted to the court
a quo
to finalise in
accordance with the answers given to the questions posed in the
stated case.'
[83]
In
saying that 'the requesting State should have jurisdiction to try the
person', without identifying by which law that jurisdiction
should
arise, may be confusing. That can be averted by inserting the words
'under its domestic law' after the word 'jurisdiction'.
A more
serious difficulty arises from the order granted in consequence of
the appeal succeeding. The magistrate had already rejected
the two
points that Mr Kouwenhoven had raised about the existence of the
extradition agreement and the authentication of the
documents. Once
her decision in regard to the s 3(1) issue was overturned on
appeal, there was nothing further for her to
decide. Within the
limited parameters of an extradition enquiry her task was complete
and, had she not erred on this one
point, the only decision open to
her was to commit Mr Kouwenhoven in terms of s10(1) of the Act.
[90]
He could then have appealed against her decision in terms of s 13
raising all the arguments that he could and should have
raised in
this appeal, but refrained from doing so because of the erroneous
view of the law referred to in para 48 of this judgment.
[84]
Had
the procedurally correct route been followed the high court ought to
have upheld the appeal and made the order that the magistrate
should
have made committing Mr Kouwenhoven in terms of s 10(1) of the
Act. Instead it remitted the matter to the magistrate.
It is too late
now for that to be remedied, but it is appropriate to record that the
remittal does not amount to an invitation
to reopen the issues on
which the magistrate has already made a decision. As matters stand
the only purpose of the remittal is
for her to make an order for Mr
Kouwenhoven's committal. Neither the order of the high court, nor
this order, authorises the re-opening
of issues or the creation of
fresh issues. The effect of the remittal is that the magistrate
deals with the issues in the light of the answer to the question of
law as set out on appeal. In reconsidering its decision in
the light
of the court of appeal’s setting out of the legal position, the
court
a quo
is
limited to the record.
[91]
Nothing in the high court's order, or in this order authorises the
magistrate to reopen any issue or deal with any new issue not
previously before her.
[85]
In
the result in the appeal against the High Court's decision upholding
the DPP's appeal against the magistrate's discharge
of
Mr Kouwenhoven, the following order is made:
1
In case no A181/2020 the answer to the third question posed in the
case stated in terms
of
s 310(1)
of the
Criminal Procedure Act
52 of 1977
is amended by the insertion of the words 'under its
domestic law' after the word 'jurisdiction'.
2
The appeal against the high court's order in case A 181/200 is
dismissed.
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 to third
respondents: A M Breitenbach SC (with him
A G Christians)
Instructed
by:
State Attorney, Cape Town and
Bloemfontein
For second respondent
on the Extradition
Act:
C L Burke
Office of the DPP, Cape Town.
[1]
Kouwenhoven v Minister of Police and Others
[2021] ZASCA 119.
[2]
Kouwenhoven v Minister of Police and Others
[2019] 4 All SA 768 (WCC); 2021 (1)
SACR 167 (WCC).
[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) (High Court judgment).
[4]
Shabalala v Attorney-General, Transvaal
[1995]
ZACC 12
;
1996 (1) SA 725
(CC) para 18; Du Toit et al
Commentary
on the
Criminal Procedure Act
(Looseleaf
)
ch20-1 (RS 42, 2009)
[5]
Section 60(1)
of the CPA 1955.
[6]
Section 68(3)
of the CPA 1955.
[7]
Section 68(1)
of the CPA 1955.
[8]
Section 68(2)
of the CPA 1955.
[9]
Sections 130
and
131
of the CPA.
[10]
Section 135
of the CPA.
[11]
Section 139(2)
of the CPA.
[12]
If it were within the magistrate's jurisdiction
it is improbable that a preparatory examination would have been
held.
[13]
Doyle v Shenker
1915
AD 233
;
Union Government (Minister of
Mines and Industries) v Union Steel Corporation (South Africa) Ltd
1928 AD 220
;
South
African Railways v Swanepoel
1933 AD
370.
[14]
Hira v Booysen
1992
(4) SA 69 (A).
[15]
S v Swanepoel
1979
(1) SA 478
(A) at 488C-H.
[16]
Ibid. The judgment is in Afrikaans and reads as
follows:
'
In
art 1 van Wet 51 van 1977 word bepaal dat "strafregtelike
verrigtinge" "ook 'n voorlopige ondersoek ingevolge
Hoofstuk 20" beteken. Dit is dus duidelik dat Wet 51 van
1977 nie probeer om 'n omskrywing te gee van die term
"strafregtelike
verrigtinge" nie behalwe deur te sê
dat dit ook 'n voorlopige ondersoek behels. Dit sou onmoontlik wees
om 'n presiese
omskrywing van die term "strafregelike
verrigtinge" te gee omdat, indien na die Wet gekyk word, dié
woorde nie
net kan slaan op een bepaalde soort strafregtelike
verrigting nie maar op verskillende soorte van strafregtelike
verrigtinge.'
[17]
This was formerly not a criminal offence under
s 309
of the CPA 1955 (see
R v
Hlengwa
1958 (4) SA 160
(N)
at164B-165A), but now is. See
s 67A
of the CPA.
[18]
Sections 67
,
67A
and
170
of the CPA.
[19]
S v Hlongwa
1979
(4) SA 112
(D) at 114E-F.
[20]
S v Heyman and Another
1966
(4) SA 598 (A).
[21]
Section 212
of CPA 1955.
[22]
Heyman
op cit,
fn 20, at 602E-603F. By contrast Rumpff JA in his judgment upheld
the appellants' 'convictions and sentences', suggesting
that he saw
no difference between the proceedings and a conventional criminal
trial.
[23]
Nel v Le Roux NO and Others
[1996]
ZACC 6
;
1996 (3) SA 562
(CC) para 11 and fn 17. In
De
Lange v Smuts NO and Others
[1998]
ZACC 6
;
1998 (3) SA 785
(CC) para 149 O'Regan J said that
s 205
formed 'part of the criminal justice system'.
[24]
De Lange v Smuts NO
,
ibid, para 37.
[25]
Ibid, para 80.
[26]
Wessels and Others v Additional Magistrate,
Johannesburg, and Others
1983 (1) SA
530
(T). But see the qualifications in
S
v Ramaligela and Another
1983 (2) SA
424
(V) at 429G-430H.
[27]
Director of Public Prosecutions v Paz and
Another
[2000] 3 All SA 119
(W)(
Paz
).
[28]
In
ss 11(
b
)(i)
and 20(
a
).
[29]
The provision was introduced to address the
difficulties arising from the decision in
Ex
parte Graham: In re United States of America v Graham
1987
(1) SA 568
(T). See
s 2(
b
)
of Act 46 of 1987.
[30]
For present purposes I accept this although, if
there were no other right of appeal, s 13(1) might be capable
of an interpretation
that it provided a right of appeal to the DPP
as a party to the proceedings in terms of s 17 of the Act.
[31]
Paz
, op cit, fn 27 at 132
and High Court judgment
para
115.
[32]
S v McCarthy
[1995] ZASCA 56
;
1995
(3) SA 731
(A) at 741G-H., relying on
S
v Bagattini
1975 (4) SA 252
(T) at
267H.
[33]
Harksen v President of the Republic of South
Africa and Others
[2000] ZACC 29
;
2000
(2) SA 825
(CC) para 30.
[34]
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 40.
[35]
Geuking v President of the Republic of South
Africa and Others
[2002] ZACC 29
;
2003
(3) SA 34
(CC) paras 2 and 44.
[36]
S v McCarthy
, op
cit, fn 32 at 748C-E. This was cited with approval in
Director
of Public Prosecutions, Cape of Good Hope v Robinson
[2004]
ZACC 22
;
2005 (4) SA 1
(CC) para 36 (
Robinson
).
[37]
Ibid, para 33.
[38]
Nor was Brand J in
Harksen
v Director of Public Prosecutions, Cape and Another
1999
(4) SA 1201
(C) paras 32-42.
[39]
Paz,
op cit, fn
27, at 118-119.
[40]
In
Amand v Home
Secretary
[1943] AC 147
(HL);
[1942] 2
All ER 381
(HL)
(Amand
).
[41]
In 1943 appeals in criminal causes or matters
were governed by the Criminal Appeals Act 1907 and the Supreme Court
of Judicature
Act, 1925. The latter was replaced by the
Administration of Justice Act, 1960 (8 & 9 Eliz 2. C.65). Under
both statutes the
Court of Appeal's jurisdiction was excluded in any
criminal cause or matter. Under s 15(2) of the Administration
of Justice
Act no appeal lay from a decision of a single judge on a
criminal application for
habeas corpus
.
Similar provisions applied in 1943.
[42]
Amand
, op cit,
fn 40 at 385. See to similar effect Lord Wright at 387-388.
[43]
United States Government v Montgomery
(Montgomery, third party)
[2001] UKHL 3
;
[2001] 1 All
ER 815
(HL). The more recent decision in
R
(on the application of Belhaj and another) v Director of Public
Prosecutions and Another
[2018] UKSC
33
;
[2018] 4 All ER 561
(SC) at paras17-18 (Lord Sumption) and 52
(Lord Mance), affirms the approach in the earlier cases.
[44]
The position is the same under
ss 13
and
37
of
the
Prevention of Organised Crime Act 121 of 1998
.
[45]
Montgomery
, op
cit, fn 44, paras 15 to 19.
[46]
Santam Insurance Ltd v Taylor
1985
(1) SA 527
(A) at 526I-527C.
[47]
British Extradition Act, 1870 (33 &
34 Vict.
C52)
as amended up to 1906 (the BEA).
[48]
British Fugitive Offenders Act, 1881 (44 & 45
Vict. C 69) (the FOA).
[49]
BEA, s 8.
[50]
BEA, ss 9 and 10.
[51]
BEA, ss 10 and 11.
[52]
The Acts of 1926, 1955 and 1977.
[53]
BEA, s 11.
[54]
By the South Africa Act, 1909 (9 Edw VII. C 9).
Section 135 preserved all colonial laws in force after union.
[55]
C/f the decisions in
Van
der Linde v Calitz
1967 (2) SA 239
(A)
at 249D-251F and
Transol Bunker NV v MV
Andrico Unity and Others: Grecian-Mar SRL v MV Andrico Unity and
Others
1989 (4) SA 325
(AD) at
339A-340F.
[56]
By the Privy Council Appeals Act 16 of 1950.
[57]
Minister of Justice and Constitutional
Development and others v South African Litigation Centre and Others
[2016] ZASCA 17
;
2016 (3) SA 317
(SCA)
para 102.
[58]
R v Governor of Brixton Prison, ex p Levin
[1997] 3 All ER 289 (HL).
[59]
Ibid at 289.
[60]
Attorney-General, Transvaal v Flats Milling
Company (Pty) Ltd and Others
1958 (3)
SA 360 (A).
[61]
S v Saib
1975
(3) SA 994
(N) at 995G-H. It was in that context that Miller J said
that: 'It is not for the Attorney-General himself to state the
question
of law which the Court of appeal is to consider; that
question must be set forth in the case stated by the magistrate.'
See
Attorney-General, Transvaal v
Moores (SA) (Pty) Ltd
1957 (1) SA 190
(A) at 195G-H.
[62]
I express no view on the extent to which the
magistrate may amend the proposed questions in order to express them
more clearly,
whilst ensuring that they remain the questions that
the DPP wants to raise.
[63]
The contrary conclusion in
S
v Kameli
[1997] 3 All SA 230
(Ck) at
238-239 is incorrect.
[64]
Magmoed v Janse van Rensburg and others
[1992] ZASCA 208
;
1993 (1) SACR 67
(A)
at 93B-95C.
[65]
Director of Public Prosecutions, KwaZulu-Natal
v Ramdass
[2019] ZASCA 23; 2019 (20
SACR 1 (SCA).
[66]
Op cit, fn 59 at 374D-E, with reference to
Attorney-General v Port
1938
TPD 208
at 212.
[67]
Municipal Council of Bulawayo v Bulawayo
Waterworks Ltd
1915 AD 611
at 625 and
631-2;
Sentrale Kusmis Korporasie (Bpk)
v NKP Kunsmisverspreiders (Edms) Bpk
1970
(3) SA 367
(A) at 395F-396A.
[68]
Flats Milling
,
op cit, fn 60, at 373A-374G.
[69]
Wright v Stuttaford
1929
EDL 10
at 42 cites Roman Dutch authority for the proposition that
jurisdiction is: '…
a
lawful power to decide something in a case, or to adjudicate upon a
case, and to give effect to the judgment, that is, to have
the power
to compel the person condemned to make satisfaction'
[70]
The point is canvassed in detail in paras 15 to
19 of the High Court's judgment.
[71]
S v Devoy
19971
(3) SA 899 (A) at 910D-G.
[72]
The treaty was then amended to read 'within the
jurisdiction'. Proc 67 in GG 3424 of 24 March 1972, Article 1.
[73]
29 April 1958, UN Treaty Series (450) 82.
[74]
https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXI-2&chapter=21
accessed 13 September 2021.
[75]
R v Holm; R v Pienaar
1948
(1) SA 925
(A) read with the definition of an extraditable offence
in s 1 of the Act. See also
S v
Basson
[2005] ZACC 10
;
2007 (3) SA 582
(CC) paras 223-225
[76]
As does the United Kingdom in relation to murder
committed by one of its citizens abroad.
Re
Al-Fawaaz; Re Elderous and Others
[2001]
UKHL 69
;
[2002] 1 All ER 545
(HL) (
Al-Fawaaz
)
paras 102 and 137.
[77]
G T Felkenes 'Extraterritorial criminal
jurisdiction: its impact on criminal justice' (1993) 21
Journal
of Criminal Justice
583-594.
[78]
Rollin M Perkins 'The Territorial Principle in
Criminal Law'
(1971) 22
Hastings Law
Journal
1155.
The classic example is
that of a shot being fired from one state across the boundary with
another state and killing a person
in the second state. Neither
state could exercise jurisdiction on a purely territorial basis.
[79]
Al-Fawaaz
, op
cit, fn 76, paras 95 and 148-150.
[80]
Piracy by law of nations; Sinking or destroying a
vessel at sea, or attempting or conspiring to do so; Assaults on
board a ship
on the high seas with intent to destroy life or to do
grievous bodily harm and Revolt or conspiracy to revolt by two or
more
persons on board a ship on the high seas against the authority
of the master.
[81]
Then and until independence in 1996 the
Bechuanaland Protectorate. A list of British Protectorates will be
found at https://en.wikipedia.org/wiki/Protectorate.
[82]
Sections 3(1), (2) and (3); 5(1)
b
);
and 7(2).
[83]
Supported by
the headings to ss 10 and 12 referring to offences 'committed in'
foreign states or associated states.
[84]
Hoban v ABSA Bank Ltd t/a United Bank and
Others
1999 (2) SA 1036
(SCA) para 20.
[85]
Carolissen v Director of Public Prosecutions
[2016] 3 All SA 56
(WCC) paras 49 and
50. I do not think that the decisions in
S
v Meiring and Another
[1992] 4 All SA
120
(W) at 123-124 and
Abel v Minister
of Justice
2001 (1) SA 1230
(C) para
24 take the matter any further or lend support to Mr Kouwenhoven's
case. In neither case was the court faced with a
situation
comparable to the present one. On the approach in this judgment all
three cases were correctly decided on the facts.
[86]
Op cit, fn 76.
[87]
Lord Slynn at para 30; Lord Hutton at para 65;
Lord Millett at para 105 and Lord Rodger at para 140. Lord Scott
(para 117) expressed
his complete agreement with the reasons of his
colleagues.
[88]
Quagliani
, op
cit, fn 33 paras 40-41.
[89]
Geuking,
op cit,
fn 34, para 2.
[90]
Director of Public Prosecutions, Cape of Good
Hope v Robinson
op cit fn 37, para 49;
Mochebelele v Director of Public
Prosecutions, Gauteng and Another
[2019]
ZASCA 82
;
2019 (2) SACR 231
(SCA) para 17.
[91]
Du Toit et al,
Commentary
on the
Criminal Procedure Act
(loose-leaf
)
R5 57, 2016 ch 30- p63.