Tucker v Additional Magistrate, Cape Town and Others; Tucker v S (19434/17; A37/18) [2019] ZAWCHC 36; [2019] 2 All SA 852 (WCC); 2019 (2) SACR 166 (WCC) (28 March 2019)

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[2019] ZAWCHC 36
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Tucker v Additional Magistrate, Cape Town and Others; Tucker v S (19434/17; A37/18) [2019] ZAWCHC 36; [2019] 2 All SA 852 (WCC); 2019 (2) SACR 166 (WCC) (28 March 2019)

IN
THE HIGH COURT OF SOUTH AFRICA
[WESTERN
CAPE DIVISION, CAPE TOWN]
[REPORTABLE]
Case
nos. 19434
/17; A37/18
In
the matters between:
LEE
NIGEL
TUCKER
Applicant
and
THE
ADDITIONAL MAGISTRATE,
CAPE
TOWN
First
Respondent
THE
DIRECTOR OF PUBLIC PROSECUTIONS,
WESTERN
CAPE
Second
Respondent
THE
MINISTER OF JUSTICE AND
CORRECTIONAL
SERVICES
Third
Respondent
and
LEE
NIGEL
TUCKER
Appellant
and
THE
STATE
Respondent
JUDGMENT DELIVERED ON
28 MARCH  2019
SHER, J (Samela J
concurring):
1.
We have before us an
appeal against the judgment and Order which was handed down by the
magistrate of Cape Town on 10 November 2017,
in terms of which he
held that the appellant was liable to be extradited to the United
Kingdom to stand trial on charges pertaining
to the alleged sexual
assault of minors, and committed him to prison whilst awaiting the
decision of the Minister of Justice in
regard to his surrender.
2.
In addition, we also
have before us an application to review and set aside the proceedings
before the magistrate on the grounds
that they were manifestly and
grossly irregular in numerous respects, in breach of the appellant’s
constitutional rights.
3.
The
appellant was arrested ‘provisionally’
[1]
in Cape Town in March 2016, pursuant to a warrant which was issued by
the magistrate of Pretoria
[2]
following notification from the Minister that he had received a
request for the appellant’s extradition from the UK. Formal

papers in this regard were presented to the Department of
International Relations and Co-operation by the British High
Commission
in Pretoria on 19 April 2016.
The background
4.
Amongst the papers in
the request for the appellant’s extradition was an affidavit by
Detective Constable Alison Mildren,
of the Avon and Somerset police.
She said that in 1997 the police received information that a
paedophile ring had sexually exploited
a number of vulnerable boys in
the areas of Bristol, Cardiff, Swansea and Caerphilly and following
the launch of a major investigation
a number of men were arrested and
prosecuted on a range of sexual offences.  In 1999 ten men were
convicted and sentenced
to various terms of imprisonment.
5.
In October-November
1999 two victims, who for the purposes of this judgment shall simply
be referred to as DT and SW, came forward
with complaints that they
had been sexually abused in Caerphilly and elsewhere by the appellant
and two other adult males, who
were duly arrested and charged
accordingly before the Swindon Crown Court, which sat with a jury.
One of the appellant’s
co-accused entered a plea of guilty
before the trial commenced.
6.
During the trial both
complainants testified, as did the appellant and his co-accused. In
their evidence the complainants alleged
that the appellant had
non-consensual oral and anal sex with them, at a time when they were
between 13 and 14 years old. On 4 October
2000 the appellant and his
co-accused were convicted of a number of these offences. The
appellant’s conviction occurred in
his absence as did his
subsequent sentencing to 8 years imprisonment, for it appears that
two days before judgment was handed down
he ‘jumped’ bail
and made his way to South Africa.
7.
Notwithstanding that he
was a fugitive from justice the appellant lodged an appeal against
his conviction which was entertained
by the Court of Appeal. On 29
May 2002 it quashed his conviction as well as that of his co-accused
because it was of the view that
the summing up by the trial court had
been inadequate. In this regard the Court of Appeal found that the
trial judge had not clearly
and properly summed up the evidence with
specific reference to each of the charges, for the jury, and in the
circumstances their
verdicts could not be regarded as safe. However,
the Court was of the view that inasmuch as the offences were serious,
public interest
demanded that there should be a re-trial. It
accordingly directed that a fresh indictment should be lodged at
Bristol and the appellant
and his co-accused should be re-arraigned
as soon as possible.
8.
On 30 May 2002 an
indictment containing the same charges as those which had previously
been preferred against the appellant and
his co-accused, and on which
they had been convicted, was duly filed, and in due course the
appellant’s co-accused was re-convicted
and sentenced to 6
years imprisonment. Although a fresh warrant was issued for the
appellant’s arrest in March 2003 the matter
lay dormant for
many years until the police received information pertaining to the
appellant’s whereabouts in South Africa.
This spurred the
prosecution services to prepare for a re-trial, during the course of
which new evidence of further sexual transgressions
by the appellant
came to light, both in relation to DT and SW as well as in relation
to a number of new victims who came forward
with allegations of
sexual abuse.
9.
As a result, a new
warrant ‘at first instance’ was issued by the North Avon
Magistrates’ Court for the arrest
of the appellant in respect
of these fresh allegations. According to the warrant and the
affidavit of Mildren it appears the appellant
is now being sought in
respect of an additional 41 alleged sexual offences, for which he has
as yet not been indicted, and which
also concern minor boys.
10.
Following
his arrest in South Africa a trial indictment was lodged against the
appellant at the Bristol Crown Court on 31 March
2016. Although it is
described as a ‘new’ trial indictment it is apparent
[3]
that it charges the appellant with the selfsame  sexual offences
with which he was previously charged and convicted viz 3
counts each
of the alleged contemporaneous indecent assault and ‘buggery’
of DT, committed in the period between January
1985 and February 1988
at Swansea and Caerphilly, and two further counts of the alleged
contemporaneous indecent assault and ‘buggery’
of SW,
which was committed in the period between January 1987 and December
1988 at Caerphilly; contrary to the relevant provisions
of the Sexual
Offences Act, 1956 which was the applicable legislation in force at
the time.
11.
According to the
affidavit of Andrew Glover, a barrister and specialist extradition
prosecutor with the Crown prosecution services
of England and Wales
(which affidavit was also included in the request for extradition),
with reference to the offences in respect
of which the appellant is
to be extradited ‘buggery’ is defined in terms of the
1956 Act as unlawful sexual intercourse
per
anum
with a person
who has not attained the age of 18 years, and where a complainant is
under the age of 16 years at the time of the
offence the maximum
punishment which can be imposed is life imprisonment. Similarly, in
terms of the Act a boy under the age of
16 years is not legally able
to consent to a sexual act which would otherwise constitute an
‘indecent assault’, and
the maximum penalty provided for
such an act, on conviction, is 10 years imprisonment.
12.
Insofar as the further
offences for which the appellant is sought are concerned ie the fresh
offences listed on the arrest warrant
from the North Avon
Magistrates’ Court, it is alleged that between February 1983
and June 1989 the appellant ‘buggered’
and indecently
assaulted or committed acts of ‘gross indecency’ with a
number of boys who were under the age of 16
years. As far as the
charges of ‘gross indecency’ are concerned these are
apparently intended to refer to other forms
of sexual assault which
the appellant perpetrated on his victims, contrary to common law, and
in respect of which a maximum sentence
of 5 years imprisonment may be
imposed. In addition, the appellant is sought on 2 counts of indecent
assault of adult men, committed
between October 1990 and March 1991,
and 2 counts of living off the earnings of child prostitution,
contrary to the Sexual Offences
Act of 1967, for which a maximum
penalty of 7 years imprisonment may be imposed. According to Mr
Glover, in terms of UK law there
is no time limit for the institution
of proceedings in respect of any of the offences for which the
extradition of the appellant
is sought.
13.
It
is not in dispute that all of the offences for which the appellant is
sought (including those in respect of which he has been
indicted)
also constitute offences in terms of our law, which attract varying
terms of imprisonment ranging from life imprisonment
(in the absence
of substantial and compelling circumstances)
[4]
to lengthy terms of imprisonment less than that. Since the
promulgation of the Criminal Law (Sexual Offences and Related
Matters)
Act
[5]
in 2007, any
person who penetrates the sexual organs, anus or mouth of another
without consent is guilty of rape
[6]
and if a person sexually violates another by means of any act
involving direct or indirect contact between the genital organs or

anus of the one and any part of the body of the other, he will be
guilty of sexual assault.
[7]
In
addition, the Act further provides that any person who commits an act
of ‘consensual’ sexual penetration with a
child between
the age of 12 and 16 shall be guilty of rape
[8]
and similarly any person who sexually violates a child of that age,
even if this allegedly occurred ‘consensually’,
will be
guilty of sexual assault.
[9]
As
far as living off the earnings of prostitution is concerned where
this involves a child under the age of 16 it is punishable
in our law
as sexual exploitation in terms of the Criminal Law (Sexual Offences
and Related Matters) Act.
[10]
14.
In
terms of our law
[11]
the date
when the acts for which extradition is sought are required to
constitute a punishable offence, in satisfaction of the
‘double’
or dual criminality principle fundamental to extradition law, is the
‘request date’ ie the date
when the request is made for
extradition, which in this case was in April 2016, and not the
‘conduct’ date ie the date
when the acts concerned were
performed, which in this case would range between 1983 and 1991. But
even were the conduct date to
be applicable the principal acts for
which the appellant is sought to be extradited constituted our common
law offences of sodomy
(as non-consensual sexual intercourse
per
anum
between two males) and indecent assault, at that time. And pursuant
to the judgment in
Frankel
[12]
which was handed down on 15 June 2017 (prior to the magistrate’s
judgment and order on 10 November 2017), there is no prescription

period applicable in our law in regard to any sexual offences,
whether in terms of common law or statute.
[13]
The proceedings before
the magistrate
15.
When the hearing
commenced on 13 October 2017 the prosecutor handed up the original of
a certificate which had been produced by
Mr Barry Hughes, the Chief
Prosecutor for the South West Area of the Crown Prosecution Service
of England and Wales, in terms of
s 10(2) of the Extradition Act, in
which he declared that the evidence which was ‘contained’
in the request for the
extradition of the appellant was available for
trial and was sufficient under the law of England and Wales to
justify his prosecution,
whereupon the appellant’s counsel
proceeded to address the court.
16.
He
pointed out that in terms of the Act
[14]
the proceedings were to be conducted in the manner in which a
preparatory examination would be held in terms of the Criminal
Procedure
Act.
[15]
He
contended that this meant that the prosecutor was obliged to put
forward such evidence as he might have in his possession and

thereafter he was required to put the charges in respect of which
extradition was sought, to the appellant, who would plead thereto
and
would then have the right to testify and to call witnesses. The
magistrate interjected and informed him that this was not how
he
understood the proceedings should be conducted, but it is apparent
that right from the outset he did not provide any clear direction
in
this regard, and simply indicated that in his view the certificate in
terms of s 10(2)
[16]
was
‘sufficient’. The appellant’s counsel persisted
with his contention that the prosecution was required to
put forward
its evidence before his client could be required to testify or call
any witnesses. He further submitted that as the
evidence which was
contained in the extradition request, particularly the affidavit by
Mildren, was not first-hand and was entirely
hearsay, it was
inadmissible. He also contended that it was impermissibly vague in
regard to the necessary particularity which
was required. In this
regard he pointed out that in relation to a number of the charges
insufficient particularity had been provided
as to the place where
the alleged offences had been committed, and most of the charges were
so broad in relation to the alleged
period in which the offences
concerned had been committed that the appellant was unable to respond
sensibly thereto. Accordingly,
he requested that the magistrate
should make a ruling in relation to the admissibility and cogency of
the evidence which had been
put forward, in order that the appellant
could be in a position to decide whether he, in turn, should put up
any evidence in response
thereto.
17.
One would have thought
that (as per the discussion below) at this juncture the magistrate
would have pointed out that inasmuch as
the proceedings did not
constitute a criminal trial and were simply directed at considering
whether or not the appellant was extraditable,
most of the objections
which had been raised were irrelevant, but he became impatient
instead and said he was not prepared to make
piecemeal rulings and
intended to make only one ruling at the end of the matter, and after
remarking that there was ‘something
called contempt of court’,
at the instigation of the prosecutor he insisted that the appellant
should proceed to put forward
his ‘defence’.
18.
This prompted an
adjournment for the appellant’s counsel to take instructions,
at which stage he requested a postponement
in order that he could
prepare the appellant to give evidence. He apologized for the
interruption in the proceedings and said that
as he had understood
that the state would first put up its evidence and the court would
thereafter indicate whether the evidence
was of any value, before the
appellant would have to decide whether he should testify, he had not
anticipated that the appellant
should give evidence on the first day
which had been allocated for the matter to be heard and he
accordingly requested that it
be postponed to 10 November, being the
second day which had been agreed upon between the parties.
19.
The magistrate was not
amenable to this request and said that he was only prepared to
adjourn for a few days. He accordingly postponed
the matter for a
week ie to Friday, 20 October 2017 at 14h00. As anyone will
appreciate, a Friday afternoon is hardly a time conducive
for the
completion of any proceedings before a court.
20.
But,
at the appointed time on 20 October 2017 the appellant’s junior
counsel duly appeared together with a silk, who said
that he was
ready to call the appellant to give evidence. He indicated, with
reference to the decision in
Garrido
[17]
that he also intended placing certain material before the court with
a view to it being included in the magistrate’s report
to the
Minister.
[18]
21.
During
the course of his evidence the appellant made reference to the
provisions of s 7(2) of the UK Criminal Appeals Act
[19]
which provides that in the event of a successful appeal against a
criminal conviction a Court of Appeal may only order that an
accused
be retried for the offences of which he was originally convicted,
[20]
or any offence which might have been an alternative offence to that
with which he was originally charged, or a competent verdict
in
respect thereof.
[21]
22.
According to him this
meant that he could not be extradited to stand trial on any charges
but the charges on which he had originally
stood trial, and as a
result the attempt by the UK prosecution authorities to extradite him
on the fresh offences which were set
out in the warrant of arrest
from North Avon, was not competent.
23.
The appellant also
testified that his arrest and trial had been subject to what he
termed ‘vile, distorted and exaggerated’
media coverage,
and he said that his arrest in Cape Town and subsequent bail
application had also received a great deal of publicity.
He averred
that the media coverage was in violation of an injunction which the
Court of Appeal had placed on any reporting by the
media. When
queried what the relevance of this was to the extradition proceedings
his counsel indicated that as a result of the
adverse publicity which
the appellant had been subjected to they would contend that it would
be impossible for him to ever receive
a fair trial in the UK, and
they were in the process of putting together a file containing
extracts of some of the media reports
the appellant had been
subjected to. He said they also intended submitting an affidavit from
an expert on British law which would
show that it discriminated
unfairly against homosexuals. In this regard the appellant testified
that whereas at the time when the
alleged offences were committed
heterosexual underage sex with a female child was ‘time-barred’
after 2 years ie could
not be prosecuted after more than 2 years had
gone by, homosexual sex with an underage male child was an offence
which never prescribed.
Finally, the appellant’s counsel said
that they were in the process of obtaining a copy of the original
indictment on which
the appellant had stood trial, in order to show
that the trial indictment which had been filed against him in April
2016, contained
‘different’ charges.
24.
Even though the
appellant’s counsel indicated that a postponement would only be
sought after the appellant’s testimony
had been concluded, and
to this end the prosecutor could cross-examine him, the prosecutor
objected vehemently to the notion of
any postponement for the
purposes of obtaining the documentation referred to.
25.
He said that the matter
had been going on for 17 years, which was too long. In his view there
was no basis for the Court to have
any regard for the opinions of a
British legal expert and these were irrelevant, for it was accepted
as a matter of comity between
states that one territorial
jurisdiction would not comment on the law of another. Similarly, he
objected to the relevance of any
media reports.
26.
He even objected to the
evidence which was tendered by the appellant in relation to his HIV
status and the difficulties which he
had experienced in obtaining
anti-retroviral medication whilst he had been in prison, before bail
was granted to him. As the appellant’s
counsel rightly pointed
out, this was something which would need to be brought to the
Minister’s attention, when and if he
considered that the
appellant should be surrendered to the UK authorities.  But the
prosecutor was of the view that these
were all matters which could be
addressed in representations which the appellant could make to the
Minister, and he submitted that
they had no place being raised in the
extradition enquiry before the magistrate.
27.
The magistrate took his
cue from the prosecutor, and indicated that he was not prepared to
grant a postponement in order that any
of the documentation which was
referred to could be obtained and that he intended to make a decision
based solely on the evidence
which was before him.
28.
The prosecutor then
proceeded to cross-examine the appellant vigorously, in a manner
which at times was most unfair. Shortly after
the commencement of
cross-examination when the appellant sought to explain his
understanding of the Court of Appeal’s judgment,
in answer to a
question which had been posed, the prosecutor told him that he had an
answer for everything. He then admonished
the appellant for
supposedly interrupting him whilst he was putting his questions, when
in fact he repeatedly interrupted the appellant
whilst he was trying
to answer the questions which had been put to him. At one point in
the proceedings the prosecutor became so
animated that he slammed his
fist down on the table and shouted at the appellant, without cause.
Instead of reining the prosecutor
in, when necessary, the magistrate
gave him a free hand and made little attempt to control the
proceedings. The appellant’s
counsel repeatedly tried to get
the court to intercede, in vain.   On one occasion when he
tried to object to the manner
in which the appellant was being
examined the magistrate curtly instructed him to ‘take a seat’
before he had even
heard his objection, and one another occasion he
informed him that they could not carry on with the proceedings if he
‘jumped
in every time’ (sic). As appellant’s
counsel rightly tried to point out to the court, he was under a duty
to intercede
on behalf of his client whenever the cross-examination
was unfair, but rather than to come to the appellant’s
assistance
and restore order the magistrate simply appeared to become
irritated by the objections that were being made by his counsel. Even

a statement by the prosecutor that the appellant was not entitled to
the rights contained in the Constitution, as he was not a
citizen,
was not challenged by the magistrate.
29.
When the appellant had
completed his testimony his counsel requested that the matter be
postponed to the 10
th
of November 2017, the date which had previously been agreed upon
between the parties, for argument. Given that the date had been

pre-arranged this was clearly a sensible suggestion, but
notwithstanding that he had previously agreed thereto, as on the
previous
occasion the prosecutor objected. He alleged that the court
was being ‘held to ransom’ as they had lost ‘half
a
day’ on the previous occasion because the appellant’s
counsel had not been ready to proceed, and he insisted that
the
matter should continue on an earlier date. And once again, egged on
by the prosecutor the magistrate agreed, without regard
for the fact
that the dates had been previously arranged and without regard for
the parties’ availability or other court
commitments. He
suggested the matter should be postponed to the following Friday 27
October 2017, but when counsel pointed out
that both he and his
attorney had prior commitments he ruled unilaterally that it should
then be heard on 3 November, even though
the appellant’s
counsel pointed out that he was engaged in another court on that day.
Given that this was merely one week
before the date which had been
previously agreed upon the magistrate’s stance seems to have
been rather pointless. There
was no suggestion there would be any
prejudice to any of the parties or the court, were the matter to be
heard a week later, as
originally agreed, nor was there any urgency
present which necessitated the matter having to be heard a week
earlier. Although
the appellant’s counsel tried to point out
that he was required to appear in another court on that day and as a
result his
client would be severely prejudiced, the magistrate was
not prepared to re-consider his decision.
30.
Predictably, when the
matter was called at 14h00 on Friday 3 November 2017 the appellant’s
previous counsel were not in attendance,
but he was duly represented
by alternative counsel, and his attorney was also present. Although
the matter was ready to proceed
the magistrate was clearly incensed
and he refused to entertain it. He accordingly postponed the
proceedings to Monday 6 November
2017 in order that appellant’s
senior counsel could show cause why he should not be held to be in
contempt of court, for
his failure to appear.
31.
When
the matter was called on 6 November 2017 the appellant was assisted
by 3 counsel: the junior and senior counsel who had represented
him
at his prior appearance, and another senior counsel who was there to
represent his unfortunate colleague. His valiant attempts
to explain
why his colleague was not in contempt in
facie
curiae
,
as he had been obliged to appear in another forum (as indicated on 20
October 2017) left the magistrate entirely unmoved, and
he summarily
found him to be in contempt. After rejecting a submission that a
simple caution and reprimand would do, he imposed
a sentence of a
fine of R2000 or 4 months imprisonment,
[22]
and then in a twist of irony, postponed the matter for argument to 10
November 2017, the very date which had previously been arranged.
On
the latter date he duly made an Order declaring that the appellant
was liable to be extradited to the UK, and committed him
to prison to
await the Minister’s decision in this regard.
The
law
32.
Extradition
has been described as a process based on treaty, comity or
reciprocity, which is initiated by a formal request from
one
sovereign state to another, by means of which a person accused or
convicted of the commission of a serious criminal offence
within the
jurisdiction of the requesting state, is surrendered to its courts
for trial or the imposition of punishment.
[23]
33.
As such, it is a
process which consists of a series of acts, partly judicial,
executive and administrative in nature. Most commonly
these acts are
regulated on both an international and a municipal level as a matter
of public international and domestic law, by
means of treaties which
constitute binding agreements between the states which are party
thereto and which become enforceable at
a municipal level after local
adoption by ratification or accession.
34.
By
their very nature therefore extradition proceedings are not about
determining the guilt or innocence of an offender, but are
aimed at
determining whether there is lawful cause to surrender the offender
to a foreign state, in order that he or she should
face justice in
such other state.
[24]
35.
Extradition
in our law is regulated by the Extradition Act
[25]
(‘EA’) and the terms of any applicable treaty (ie
extradition agreement which has been entered into with any foreign

state
[26]
and which has been
ratified or acceded to by Parliament),
[27]
which in this matter is the European Convention on Extradition.
[28]
(i)
The nature of extradition enquiries and rights issues
36.
The
EA provides that any person who has been arrested in terms of a
warrant,  pursuant to a request for his extradition,
[29]
shall be brought before the magistrate,  who shall hold an
‘enquiry’  with a view to his/her possible surrender

to the foreign state concerned.
[30]
Such proceedings are
sui
generis
[31]
ie they are neither criminal nor civil, in the traditional meaning
ascribed to these terms.
37.
The fact that the
proceedings are to be in the form of an enquiry and not a trial, has
a number of important consequences.
38.
In
the first place, because the person who is sought for extradition is
not being tried  before the magistrate and will therefore
not be
subject to criminal sanction, he or she is not entitled to rely on
the constitutionally enshrined fair trial rights which
are set out in
s 35 of the Constitution, as far as the extradition proceedings are
concerned.
[32]
Although the
exact extent of the rights which are enjoyed by an extraditee in our
law has not yet been comprehensively defined,
the Constitutional
Court has held that at the very least they include the right to
procedural fairness at all stages of the proceedings.
[33]
At a basic level this must surely include the right we would normally
associate with the
audi
alteram partem
principle
[34]
ie the right to
be heard (which in the context of an extradition enquiry would
include the opportunity to put forward one’s
case, by way of
evidence and documents);
[35]
the right to be legally represented and the right to challenge
the lawfulness and validity of the proceedings. But in addition
to
these ‘procedural’ rights, given that extraditing a
person involves arrest and detention it constitutes an ‘invasion’
[36]
of the fundamental human rights of freedom and liberty, and as such a
foreigner facing extradition is also entitled to assert the
selfsame
constitutional rights a citizen would be able to assert. In this
regard in
Tsebe
[37]
the Constitutional Court held that the constitutional rights to
dignity, life and freedom and security of the person
[38]
(which in turn includes the right not to be deprived of freedom
arbitrarily and the right not to be subjected to torture or cruel,

inhuman or degrading punishment) are not reserved for citizens only,
but are rights enjoyed by every foreigner who enters our country,

whether legally or illegally, and in proceedings for the extradition,
deportation or surrender of a foreigner the State is enjoined
[39]
to respect and protect such rights. Consequently, it held (in line
with its earlier decision in
Mohamed
[40]
)
that where there is a ‘real risk’ that if a person were
to be extradited or deported to a foreign state he would be
subjected
to the death penalty, or to cruel and inhuman punishment the State
cannot act in breach of his constitutional rights
by surrendering him
to the foreign state, and the only way it can do so lawfully is if it
obtains satisfactory assurances from
the foreign state that it will
not proceed to implement such penalty or subject him to such
punishment in the event of extradition
or deportation.
39.
But
it seems that even in instances where it would result in the obvious
breach of a fundamental ‘universal’ human right
which is
constitutionally protected in our law, or a fair trial right in the
requesting state which is also constitutionally enshrined
in our law,
or even perhaps in the case of the breach of a common treaty right
the
magistrate
ordinarily has no power to refuse a request for extradition, at least
in the case of extradition enquiries emanating from
non-associated
[41]
ie
non-African states.  In this regard the Constitutional Court
held in
Robinson
[42]
that the scheme of the legislative provisions
[43]
(which pertained to an extradition enquiry from Canada a
non-associated state)  was such that the question of whether or
not an extraditee’s rights (including the right to a fair
trial, or his wider constitutional rights), might be breached were
he
or she to be extradited, was only something that was to be considered
by the Minister
[44]
when
making his decision as to whether or not to surrender the extraditee,
after the magistrate had already found that he or she
was liable to
be surrendered. According to the Constitutional Court it was thus not
within the magistrate’s remit to take
this factor into
consideration when deciding whether or not the person concerned was
liable to be extradited. The Constitutional
Court rejected the
finding of the High Court on appeal that, when considering whether a
person was ‘liable’ to be surrendered
the magistrate was
required to consider whether the person was ‘bound in law or
equity’ to be surrendered, and its
consequent finding that
where the extradition would result in the violation of a fair trial
or constitutional right that would
consequently constitute grounds
for the magistrate to find that the extraditee was not liable to be
surrendered.
40.
As
in the matter before us, in
Robinson
the extraditee had been sentenced by a foreign court in his absence,
after he fled the country, and his extradition was sought
in order
that he could be returned to serve his sentence. The magistrate held
that he was extraditable but this was set aside on
appeal to the High
Court, on the basis that in terms of our law an accused ordinarily
had a constitutional right to be present
when tried
[45]
and it was accordingly not constitutionally permissible to sentence
him in his absence, as it would violate his constitutional
rights to
a fair trial were he to be extradited. It seems that the fact that
the extraditee was a South African citizen was an
important
underlying reason for the decision. This finding was set aside by the
Constitutional Court.
41.
Before
commenting any further it is necessary to bring some context into the
discussion. Historically, comity between nations meant
that honouring
state sovereignty was in the forefront in international affairs
between states, and when it came to extradition
law this was given
effect to in terms of the doctrine of ‘non-enquiry’. In
this regard the traditional approach of
Courts faced with an
extradition request was that they would not enquire into the
bona
fides
or the motives for an extradition request by another state, or the
treatment that an offender might receive in such state, following

extradition.
[46]
It was
assumed that the requesting state would give the extraditee a fair
trial.
[47]
However, due to the
increasing codification of fundamental and fair trial rights in
various international instruments and state
constitutions there has
been a shift from this approach to one which is more rights-focused.
In this regard Tyler
[48]
points out that:
‘
The
International Covenant on Civil and Political Rights requires fair
trial procedure.
The
Convention Against Torture and Other Cruel Inhumane or Degrading
Treatment or Punishment prohibits extradition
where there is the possibility
of the offender being subjected to torture. The International
Convention Against the Taking of Hostages
and the Convention Relating
to the Status of Refugees also prevent extradition where human rights
are violated. The United Nations
Model Treaty on Extradition of 1990
discourages the extradition of an offender where his fair trial
rights would not be protected.
Of significant importance is Art 3(2)
of the European Convention on Extradition which requires that
extradition be refused in the
instance where the requested state has
grounds to believe that the extradition request was made to prosecute
or punish a person
as a result of his race, religion, nationality or
political opinion.’
42.
In
like vein, the EA provides
[49]
that where extradition is sought by an ‘associated’ state
ie an African state with whom SA has entered into an extradition

agreement, the magistrate before whom the extradition hearing takes
place may make an order that the extraditee shall not be surrendered

where he is of the opinion that he or she will be prosecuted,
punished or even prejudiced at his trial by reason of his or her

gender, race, religion, nationality or political opinion,  and
he may also refuse to make an order for his/her surrender if
he is of
the opinion the extradition is not being sought in good faith or that
it would not be in the interests of justice or would
be unjust or
unreasonable.
[50]
Somewhat
anomalously, the magistrate before whom a person from a
non-associated state is sought to be extradited, does not enjoy
a
similar power to refuse extradition on the grounds of unfairness or
breach of fundamental rights. There is no obvious legislative
reason
apparent for why there should be such a distinction, which seems
somewhat arbitrary.  It is however apparent that the

Constitutional Court considered that the distinction between the
statutory powers which are afforded to a magistrate who deals
with an
extradition enquiry from an associated state and those afforded to a
magistrate who deals with an extradition enquiry from
other foreign
states was an important one, on which it relied substantially in
arriving at its conclusions. In this regard it was
of the view that
it was significant that whereas in extradition enquiries from
associated states it was the magistrate who had
the power to make an
order for the surrender of the extraditee or to refuse it on the
grounds of unfairness ie that it was unjust
or unreasonable, in
respect of extradition enquiries from other foreign states only the
Minister had that power, not the magistrate.
It held that this was an
important indication that the legislature did not intend that the
magistrate who sits in an extradition
enquiry from a non-associated
state should have the power to declare that a person was not liable
to be extradited, on the grounds
that it would result in a breach of
his constitutional rights.
43.
Most
extradition treaties these days, and certainly the ones to which we
have recently acceded (including the SADC Protocol on Extradition
of
2002
[51]
and the one of
application in this matter ie the European Convention on
Extradition)
[52]
have a
provision in them
[53]
to the
effect that a person shall not be extradited if there are
‘substantial grounds for believing’
[54]
that their extradition is sought for the purpose of prosecuting or
punishing them by reason of their race, gender, religion, nationality

or political opinions. Some even go so far as to include other
grounds such as age, disability (mental or physical), status and

sexual orientation.
[55]
The UK
Extradition Act of 2003
[56]
similarly bars the extradition of a person from the UK if it appears
that it is sought for the purpose of prosecuting or punishing
him/her
by reason of their race, gender, sexual orientation, religion,
nationality or political opinions.
44.
It seems to me to be
entirely anomalous that in an extradition enquiry emanating from an
associated state the magistrate is at large
to declare that an
extraditee is not liable to be surrendered on the grounds that it
would result in a violation of his/her fundamental
rights
irrespective of whether or not the underlying treaty contains a
provision to this effect, whereas the magistrate in an extradition

enquiry which emanates from a non-associated ie non-African state
cannot make such a declaration, even where there is an underlying

treaty which may be in the form of a multiparty convention such as
the European Convention on Extradition, which embodies a protection

against extraditions in such circumstances.
45.
In
my respectful view the decision of the High Court on appeal in
Robinson
was assailable for the reason that it sought to impose our
constitutionally compliant fair trial standards on another country.

Simply put, whereas it might offend the standards by which we measure
fairness in our criminal trials, for an accused to be convicted
and
sentenced in his absence, this does not mean that it is necessarily
unfair if this is the case in another legal system, especially
where
the accused is a fugitive from justice, who has absconded instead of
making use of the opportunity to exercise his rights
to take part in
the proceedings and to challenge the evidence which is admitted
during them. Just because we have a particular
‘fair trial’
constitutional provision in our Bill of Rights which is not mirrored
in the constitutional dispensation
of a foreign state which requests
the extradition of a person does not mean that if he/she were to be
extradited to that state
the trial or punishment they would have to
face would be in breach of their constitutional rights, at least not
insofar as that
system is concerned. And it is before that system
that they are required to account for their criminal offences, which
have usually
been committed in that state, and not ours. In this
regard both the European Court of Human Rights
[57]
as well as the UK Supreme Court
[58]
have cautioned Courts dealing with extradition matters not to seek to
impose their constitutional standards or international treaty
or
convention standards on states that are not party thereto, and which
may have different requirements or standards pertaining
to fair trial
issues in criminal matters. Obviously, where the extradition of an
offender might only offend a fair trial right
in the requesting, as
opposed to the requested, state we are not talking about imposing the
standards of the latter on the former.
But in keeping with the
principle of comity in this regard international jurisprudence seems
to suggest that the alleged denial
or breach of a fair trial right,
in the event of extradition in such a case, is only to be entertained
exceptionally, where there
is a risk of a ‘flagrant denial’
of fairness.
[59]
46.
In
my view, and with due and respectful deference to the reasoning of
the Constitutional Court in
Robinson,
inasmuch as the magistrate’s function in an extradition enquiry
is to determine whether the extraditee is ‘liable’
to be
surrendered, save perhaps for the issue of identity this is primarily
a legal question the answer to which will rest on a
consideration of
the relevant provisions of the law ie the EA and any applicable
treaty, with particular reference to whether or
not the offences for
which the person is sought are extraditable offences within the terms
of such treaty, if any, and the EA.
[60]
Where the treaty provides that extradition may be refused if there
are substantial grounds for believing that it is being sought
for the
purpose of prosecuting or punishing a person on the grounds of
his/her race, gender, nationality, political opinion or
sexual
orientation is it not up to the magistrate to make a determination in
this regard, based on the evidence before him, for
if this is so the
person concerned is not liable for extradition? Similarly, where it
appears that what passes for due process
in the foreign state would
be fundamentally repulsive to basic universal notions of fundamental
human rights, should the magistrate
as a judicial officer not say
that the person before him is not liable to be surrendered?
47.
For
this reason, I have some difficulty with the ambit of the decision
which was arrived at by the Constitutional Court in
Robinson
.
It effectively relegates the magistrate, in relation to human and
constitutional rights issues in an extradition enquiry from
a
non-associated state, to being a mere scribe and record compiler. He
cannot rule, even in the case of an obvious and flagrant
breach of an
extraditee’s treaty or fundamental human rights, that he is not
liable for extradition on the grounds that it
would be grossly
unjust, and must leave this to the Minister to decide in the exercise
of his discretion. All the magistrate can
do is to accept any
evidence which the extraditee may put before him in this regard,
which he may, but is not obliged to forward
on to the Minister, and
may include reference to it in the report which he forwards to the
Minister in relation to his findings.
[61]
Whilst it is perfectly understandable that the ultimate decision as
to whether or not a person sought by a foreign state should
be
extradited to it is one which should be made by the responsible
Minister in the exercise of a discretion which will have regard
for
political and other factors which a court would not properly have
regard for in deciding whether a person is liable to be surrendered,

in my view the latter decision is essentially a judicial
determination which should be made by a judicial officer, having
regard
for the law. I note that the EA does provide that the Minister
may order that a person shall not be extradited if he is satisfied

that he will be prosecuted, punished or prejudiced at his trial in
the foreign state by reason of his gender, race, religion,
nationality or political opinion (sexual orientation and ethnic
origin are not included amongst these grounds), and to this end
he
will clearly benefit from a prior judicial determination in this
regard.
48.
That then as far as the
debate concerning rights issues is concerned. I will revert to this
aspect later when I consider the appellant’s
particular
complaint that to extradite him would result in a breach of his right
to a fair trial in the UK.
(ii)
Extradition enquiries and preparatory examinations
49.
The second aspect which
must be considered, in relation to the nature of the enquiry which
takes place before the magistrate is
that the EA provides that it
must be conducted in the
manner
in which a preparatory examination would be conducted in terms of the
Criminal Procedure Act. But, in my view this does not mean
that it
should mirror it in
form.
50.
Preparatory
examinations were a species of judicial enquiry before a magistrate
into the circumstances of an alleged criminal offence,
which were
previously held in terms of the Criminal Procedure Act.
[62]
They have long fallen into disuse.
51.
They
were aimed at testing the strength of the case for the prosecution
and the degree of guilt of an alleged offender, with a view
to
evaluating the prospects of a possible later prosecution, almost as a
‘dry run’ for a subsequent trial.
[63]
52.
They
required the evidence in possession of the state to be submitted on
oath or affirmation in open court, before a magistrate,
subject to
the accused’s right to test the cogency thereof by way of
cross-examination. At the conclusion of the state’s
‘case’
a charge could then be put to the accused, based on the evidence
which had preceded it, to which he would be
required to plead, unless
the magistrate was of the view that a ‘sufficient’ case
had not been made out to put the
accused on trial for any charge, in
which event he could discharge the accused summarily at the end of
the state’s ‘case’.
In the event that a charge was
put the accused could, after pleading thereto, tender his own
evidence or that of any witnesses
that he wished to call. But even if
the accused admitted his guilt in his plea or during evidence he
could not be convicted and
sentenced on the basis thereof as the
proceedings did not constitute a trial. The magistrate was simply
required to take in the
evidence and transmit the record thereof to
the Attorney-General
[64]
for
his decision as to a possible later prosecution.
53.
It is obvious that
although the EA prescribes that the extradition enquiry before the
magistrate is to be conducted in the manner
in which a preparatory
examination would be conducted this does not envisage a process
whereby formal charges are  put to
an extraditee who is then
required to plead thereto, and as far as I am aware extradition
enquiries have never been conducted on
this basis. The obvious reason
for this is because extradition proceedings are merely in the nature
of a preliminary enquiry designed
merely to determine extraditability
and are not trial proceedings, and as such it would obviously be
improper and irregular for
charges from a foreign state to be put by
the prosecution authorities of the requested state to an extraditee,
or for him to plead
thereto. But in order to avoid the kind of
confusion which manifested itself in this regard during the
proceedings before the magistrate
in this matter, when the
appellant’s counsel kept on insisting that he had a right to
test the cogency of the evidence in
possession of the state, and that
the court was thereafter required to make a ruling on whether or not
the evidence was sufficient
to put the appellant on trial, whereafter
the appellant would consider whether or should he should put up
evidence in response
thereto, it would perhaps be advisable for the
provision in question to receive the necessary legislative attention,
in order to
make clear that which has long been simply accepted as
implicit in regard to how proceedings in an extradition enquiry are
to be
conducted.
(iii)
The standard & sufficiency of evidence at extradition
enquiries
54.
As
has previously been pointed out the principal task of the presiding
magistrate in an extradition enquiry is to determine whether
the
extraditee is liable to be surrendered and, in the case where such a
person is accused of an offence,  whether there is
‘sufficient’
evidence
[65]
to warrant a
prosecution for the offences in the foreign state concerned. Where it
is sought to extradite the person concerned
for the purposes of
serving a sentence, the Court is not required to determine the
validity of the prior conviction for which the
extraditee is to be
sentenced, nor to interrogate or weigh up the evidence ie the proven
underlying facts and circumstances which
resulted in the conviction.
55.
It is only where the
foreign state seeks to extradite in order to prosecute the extraditee
that factual issues as to the sufficiency
of evidence will therefore
arise for determination by the magistrate.
56.
In
Harksen
[66]
this court held that whether there was sufficient reason for putting
an extraditee on trial in a foreign state required the court
to make
a finding as to whether there was a
prima
facie
case against him, analogous to the standard of proof which applied in
preparatory examinations. The decision must be seen in the
light of
the wording of s 10(1) of the EA at the time, which required the
magistrate to determine not only whether the extraditee
was liable to
be surrendered but, in addition, whether there would be
‘sufficient reason’ for putting him on
trial for the
offences for which he was to be extradited, had they been committed
in South Africa.
[67]
57.
In
1996 the section was amended to provide that the magistrate is
required to determine whether there is sufficient evidence to
warrant
prosecution in the foreign state, and not in South Africa, and in
this regard s 10 (3) was introduced. It provides that
for the
purposes of satisfying himself that there is sufficient evidence to
warrant a prosecution in the foreign state the magistrate
shall
accept, as conclusive proof, a certificate which appears to be issued
by an appropriate authority in charge of the prosecution
in that
state, stating that it has sufficient evidence at its disposal to
warrant the prosecution of the person concerned. In
Geuking
[68]
the constitutional court held that the provision did not violate an
extraditee’s right of access to our courts
[69]
nor did it interfere with the independence of the judiciary. It is
simply designed to serve as an aid for the magistrate, in the

determination he is required to make as to the sufficiency of the
evidence available to the foreign state, which may be a difficult

matter.
58.
In my view, given the
amendments which were made in 1996, notwithstanding that proceedings
in an extradition enquiry are to be conducted
in the manner in which
a preparatory examination would be held, the standard of proof which
needs to be met is no longer necessarily
a
prima
facie
one, as would
be the case in a preparatory examination.
59.
Proust
[70]
points out that in extradition matters common law jurisdictions
historically required that evidence of the alleged offences be

provided in order to determine whether a sufficient case had been
made out for the extradition to take place. To this end the standard

of sufficiency adopted by most common law states was that of a
prima
facie
case. In contrast to this, countries having a civil law tradition
generally required no evidence, beyond a ‘sufficient’

summary of the facts, in order to satisfy the dual criminality
principle.
60.
Given
the evidentiary burden in extraditions involving complex criminal
matters the preparation of a documentary case to a
prima
facie
standard is extremely time-consuming and resource intensive, and the
resultant volume of evidentiary material required and the
cost
involved in assimilating it can become prohibitive. As a result, over
the course of time many common law jurisdictions began
to move away
from the  requirement of proof on a
prima
facie
basis and increasingly moved either towards the adoption of the ‘no
evidence’ approach utilized by most civil law countries,
or the
so-called ‘record of the case’ approach, a hybrid
standard between the two.
[71]
61.
In terms of the
prima
facie
standard the
requested state requires the submission of evidence sufficient to
justify committal for trial in terms of its own
domestic law, had the
offence been committed there, and whilst it generally accepts
affidavit evidence it must be of such a nature
that it would be
admissible in terms of its domestic law. In this regards the law
pertaining to the admission of hearsay evidence
in the domestic state
would apply to the evidence submitted by the  requesting state,
and in in light of the hearsay rule
followed in most common law
countries first person affidavits would generally be required, and
not third hand affidavits.
62.
In
terms of the ‘no evidence’ standard (which appears to
have been adopted by the United Kingdom, most European countries,

Australia and many SADC countries,
[72]
as well as many southern and Latin American states
[73]
)
all that is usually required is a warrant of arrest and a summary of
the alleged criminal conduct, together with an extract or
statement
of the relevant legal provisions applicable, in order to satisfy the
requirements pertaining to dual criminality and
extraditable
offences.
63.
In
terms of the ‘record of case’ approach the standard of
prima
facie
proof is retained but there is no requirement that the evidence must
be submitted in a form which complies with domestic rules
of
evidence, particularly the rule that affidavits are to be in the
first person. As such, hearsay evidence is permissible and
a summary
of the evidence in the case will usually suffice. In jurisdictions
that follow this approach the ordinary protections
which would follow
in terms of standard evidentiary rules of admissibility are
substituted by specific requirements for the authentication
and
certification of the evidence, in order to provide the requested
state with a sufficient guarantee that it is both reliable
and
available. The ‘record of the case’ approach has been
adopted in Canada.
[74]
Usually, the ‘record of the case’ approach also requires
that a judicial or prosecuting authority of the requesting
state
certifies that the evidence summarised or contained therein is
available for trial and is sufficient under the law of that
state to
justify prosecution.
64.
In my view, if one
considers the wording of the relevant provisions of the EA and the
applicable treaty in this matter the indications
are that, at least
insofar as extraditions which are sought by European states in terms
of the European Convention on Extradition
are concerned, we have
adopted an approach somewhere between the ‘record of the case’
approach (as seems to be the
case in terms of the Convention) and the
‘no evidence’ approach (as seems to be the case in terms
of the EA) .
65.
In
this regard the EA provides that any deposition, statement on oath or
affirmation taken in a foreign state,
whether
or not it was taken in the presence
of the accused  or any record of any conviction or any warrant
issued in a foreign state, as well as any copy thereof, may
be
received in evidence at an extradition enquiry if the document is
certified
[75]
and
authenticated in the prescribed manner.
[76]
Traditionally, at least until the passing of the Law of Evidence
Amendment Act in 1988
[77]
hearsay was defined in our law as a statement made by a third party
otherwise than in the presence of an accused. In the circumstances,

the reference to statements which are not taken in the presence of an
accused person being admissible at extradition enquiries
appears to
be intended to be a reference to hearsay evidence being
admissible.
[78]
Inasmuch as
the proceedings are similar in nature to those followed in
preparatory examinations, it bears mention that hearsay
evidence was
considered to be admissible in preparatory examinations.
[79]
66.
That
very little in the way of any hard, real, evidence is required in
extradition enquiries in terms of our law is further reinforced
by
the provision in the EA that a mere certificate from the authority in
charge of the prosecution in the foreign state, declaring
that it has
‘sufficient’ evidence at its disposal to warrant
prosecution will constitute conclusive proof.
[80]
67.
If
one has regard for the relevant provisions of the European Convention
on Extradition
[81]
it seems
that a request for extradition shall be supported by a ‘record
of case’ consisting of:
67.1
the original or an
authenticated copy of the conviction and sentence or detention order
immediately enforceable, or the warrant
of arrest or other order
having the same effect (issued in accordance with the procedure laid
down in the law of the requesting
state); and
67.2
a statement of the
offences for which extradition is sought (which shall include the
time and place of their alleged commission),
their legal descriptions
and as accurate as possible a reference to the relevant legal
provisions applicable; and
67.3
a copy of the relevant
enactments, or where this is not possible, a statement of the
relevant law and
67.4
as accurate a
description of the person sought as possible, together with any
information which will help to establish his identity
and
nationality.
68.
In
the circumstances, given in particular the wording adopted by s 9(3)
of the EA I am of the view that hearsay evidence is pertinently

admissible in extradition enquiries, and it is not peremptory for any
affidavits which are submitted by the requesting state to
be in the
first person. However, even if I am wrong in regard to the meaning I
have afforded to the provision I would come to the
same conclusion in
terms of the Law of Evidence Amendment Act which provides
[82]
that hearsay evidence may be admissible depending on the nature and
purpose of the proceedings and of the evidence which is sought
to be
tendered, the reason why the evidence is not submitted first hand by
the source thereof, its probative value and the absence
of any
prejudice attendant upon the admission thereof.
69.
In this regard given
that the whole purpose of an extradition enquiry is simply to
determine extraditability and not guilt, and
the forum is therefore
not required to arrive at any definitive evidentiary findings in
relation to culpability, in my view hearsay
evidence should be
permissible at extradition enquiries in terms of Act 45 of 1988,
provided the safeguards for its reception,
as set out in the EA ie
the requirements of authentication and certification, have been duly
met.
The
law applied
70.
It
is finally time to deal with the various grounds of review and
appeal, which have been raised. In the first place, for the reasons

set out in the preceding paragraphs the affidavit of Mildren, albeit
largely hearsay, was admissible in the extradition enquiry
and given
that it is common cause that the affidavit and the other documents
which were submitted in the request for extradition
were those
required in terms of the relevant provisions in the Convention,
[83]
and that they were duly and properly certified and authenticated,
they were properly received into evidence by the magistrate.
As I
have previously indicated, apart from Mildren’s affidavit
included amongst these documents was the trial indictment
in terms of
which the appellant is to be re-tried on the selfsame, original
offences
[84]
before the Crown
Court of Bristol, as well as the warrant of arrest at first instance
which was issued by the North Avon magistrate’s
court in terms
of which the appellant is sought for an additional 41 offences, and
the certificate from the Chief Prosecutor for
the South West Area of
the Crown Prosecution Service of England and Wales, in terms of s
10(2) of the EA, in which he declared
that the evidence which was
‘contained’ in the request for the extradition of the
appellant was available for trial
and was sufficient under the law of
England and Wales to justify his prosecution. In my view the contents
of Mildren’s affidavit,
read together with the Bristol
indictment and the warrant from North Avon adequately set out the
charges against the appellant
with sufficient particularity as
regards time and place for the appellant to know what he was alleged
to have done, and when, and
there is no merit in the complaints
raised in this regard. Any further niggles can surely be raised with
the trial court in the
UK.
71.
Secondly,
the appellant’s contention that s 7(2) of the UK Criminal
Appeals Act of 1968 is a bar to him being extradited to
stand trial
on the additional offences which are set out in the North Avon
warrant, is mischievous.  The section simply provides
that in
the event of a successful appeal against a criminal conviction in the
UK, a Court of Appeal in the UK (and not a Court
of any state in
which extradition is sought, such as South Africa) may only order
that the accused be retried for the offences
of which he was
originally convicted,
[85]
or any offence which might have been an alternative offence to that
with which he was originally charged, or a competent verdict
in
respect thereof.
[86]
In ordering that the appellant was to be re-tried in respect of the
same offences for which he originally stood trial the Court
of Appeal
thus did no more than to give effect to the provisions of s 7(2), and
the trial indictment which was lodged at the Bristol
Crown Court in
April 2016 was in accordance with that directive. But that does not
mean that the UK authorities cannot seek the
appellant’s
extradition on additional, fresh charges which will presumably be
preferred against him in separate trial proceedings,
and in fact, by
virtue of the rule of speciality, which is fundamental to extradition
law, unless his extradition is granted by
South Africa on the
additional charges the UK authorities will not be able to prosecute
him for them. In this regard Article 14
of the European Convention on
Extradition provides that a person who has been extradited shall not
be ‘proceeded’ against,
or sentenced or detained for any
offence committed prior to his surrender other than that for which he
was extradited.
[87]
A similar
provision is to be found in the EA
[88]
and
the UK Extradition Act 2003
[89]
(a
s
also in the SADC Protocol on Extradition
[90]
).
72.
Thirdly, for the
reasons set out above, although the EA stipulates that an extradition
enquiry before a magistrate is to be conducted
in the manner that a
preparatory examination would be held, this does not mean that any
charges must be put to the extraditee or
that he is required to plead
thereto, nor is the magistrate empowered to consider whether he
should be discharged, once the state
has concluded putting forward
the evidence which it has against him, before he considers whether or
not to put up any evidence.
All that is envisaged is that the
evidence contained in the request for extradition is to be formally
put before the magistrate
together with the s 10(2) certificate, for
his consideration as to whether or not the formal requirements of the
EA and the treaty
concerned have been met in regard to proof of an
extraditable offence, and the requirements of dual criminality and
speciality.
If this has been established the extraditee has the right
to put before the magistrate such evidence as may be relevant to the
extradition request and the legalities required, which may be in the
form of testimony from himself and/or witnesses, together with
such
documentary evidence or submissions as may be relevant to these
issues, or to the exercise by the Minister of his discretion
in
regard to the extraditee’s surrender.  In the
circumstances, the complaint that the magistrate erred in not
following
the exact format as that which would have been followed in
a preparatory examination and that the proceedings were irregular in

this respect, is similarly without merit.
73.
Given
the decision of the Constitutional Court in
Robinson
,
the magistrate was correct in adopting the attitude that it was not
within his remit to consider whether or not either the appellant’s

fundamental human rights or his rights to a fair trial before an
English court would be breached, were he to be extradited, and
that
this was something which the Minister needed to determine. But that
does not mean that the magistrate could simply refuse
to accept any
evidence which the appellant wished to tender, which might have
reflected upon these aspects. In fact, somewhat anomalously,
although
the magistrate was unable (as a result of the decision in
Robinson),
to
pronounce on these issues and whether or not any breach of a
constitutional, fair trial, or fundamental human right would possibly

take place were the appellant to be extradited, he was nonetheless
obliged in terms of the decision of the Supreme Court of Appeal
in
Garrido
[91]
to receive any evidence which the appellant wished to adduce,
pertaining to these aspects, inasmuch as these could have a bearing

on the exercise of the Minister’s discretion as to whether or
not he should order that the appellant be surrendered, and
to any
report which the magistrate might deem necessary to submit to the
Minister.
74.
At the conclusion of
proceedings on the afternoon of 20 October 2017 the magistrate
refused to grant a postponement ‘for God
knows how long’
(sic) in order to ‘track down some media in the UK’ and
to obtain a report from a British expert
on allegedly discriminatory
aspects of the UK law pertaining to sexual offences committed by
homosexuals. But as we know, due to
time constraints and the fact
that the matter was not ready to be argued, it was postponed to 3
November and then again to 10 November
2017, at which time detailed
argument was presented and the magistrate thereafter made his order,
with reasons to follow.
75.
During argument before
us the appellant’s counsel conceded that, notwithstanding the
magistrate’s ruling on 20 October
2017, there was nothing which
prevented the appellant from obtaining the necessary affidavits which
he wished to submit in the
3 week period between 20 October and 10
November 2017, and there is no indication from the record that any
attempts were made to
do so. However, it was contended that the
reason why these affidavits were not submitted to the magistrate is
because he had made
it abundantly clear during proceedings on 20
October 2017 that he was not going to entertain them, as he did not
consider them
to be relevant. Having considered the transcript of
proceedings I think there is some substance in the appellant’s
submission.
At the very least I accept that the magistrate’s
attitude might well have given rise to the impression, in the mind of
the
appellant’s legal representatives, that he was not at all
disposed to receiving any such evidence, and this may have led them

to believe that there was no point in trying to obtain the affidavits
or media extracts or trying to put them before the magistrate.
On the
face of it therefore I accept that the magistrate’s refusal to
entertain such evidence constituted an irregularity,
in that it
breached the appellant’s procedural rights and the
audi
alteram partem
principle.
76.
The prosecutor submits
that when one considers what the affidavits were supposed to say, we
should find that there was in fact no
real breach of the appellant’s
rights. In this regard he points out that the appellant is to be
prosecuted in the UK not
for his sexual orientation as a homosexual,
but for his paedophiliac molestation and rape of children, and he
submits that the
discriminatory features of UK law which the
appellant eluded to, such as the allegedly unfairly discriminatory
distinction between
the prescription period for heterosexual underage
sex with female minors vis-à-vis that applicable to homosexual
underage
sex with male minors, and certain evidentiary presumptions
and different penalties which allegedly apply in the case of the
former
and not the latter etc are therefore irrelevant. He also
points out that, given the decision in
Robinson
and given the nature of extradition proceedings it was not open to
the magistrate (nor is it within this Court’s powers)
to
comment on the constitutionality or fairness of the law in the UK,
and this is something which can, and should only, be taken
up by the
appellant in the UK Court where he is tried.
77.
In like vein, as far as
the media reports which the appellant wished to submit are concerned
it may equally be said that these are
irrelevant. In the first place,
neither in this country nor, I venture to suggest, in the UK can it
be said that a person accused
of heinous sexual offences against
children has a right to bar the media from covering the proceedings,
nor does such a person
enjoy the right to prevent a prosecution from
taking place because of any complaint they may have about the
exposure they have
received in the media. They may perhaps be able to
lodge a complaint with any regulatory body that deals with the media,
but sexual
offences against vulnerable children are serious offences
which need to be exposed and reported on by the media and they have a

duty to inform the public in this regard, and members of the public
equally have a right to know about such matters and who the

perpetrators are, so that they may take steps to protect themselves
and their children. I note that the appellant claims that the
media’s
coverage of this matter subsequent to the judgment of the Court of
Appeal is wrongful in that it occurred despite
an injunction barring
any publicity. This is not correct. The Court of Appeal only decreed
that pending a re-trial of one or both
of the accused, there was to
be no publication of the proceedings before that Court. In the light
of the subsequent re-trial of
the appellant’s co-accused many
years before the appellant’s arrest, that injunction no longer
finds application.
78.
In the circumstances
one wonders what the relevance would be of the evidence which the
appellant wished to put before the magistrate,
and how it would be
capable of impacting, in any meaningful sense, on the exercise which
the Minister is required to undertake,
in terms of s 11 of the EA.
But the fact of the matter is that insofar as such evidence might
have a bearing on the Minister’s
decision the appellant was
entitled to demand that the magistrate receive it, and in this regard
as I have previously indicated,
the proceedings were irregular.
79.
On top of this, there
is no doubt that the appellant was badly treated both by the
prosecutor, as well as by the magistrate, who
was driven by
impatience and intemperate haste to conclude the proceedings as
quickly as he was able to without having due regard
for the
appellant’s procedural rights. The unfortunate impression which
one gets from the transcript is that the magistrate
saw the
proceedings as nothing more than a mere formality, and anything that
got in the way of the speedy disposal thereof was
an unwelcome
distraction. Not only did the appellant have a right to put before
the magistrate the relevant evidence he wished
to, but both the
appellant and his legal representatives were entitled to be treated
with the same dignity, courtesy and respect
afforded to any person
who appears in our courts, no matter what they may have done, or what
they may be accused of, and both the
prosecutor and the magistrate
failed in this respect. The prosecutor was allowed to have free rein
in his cross-examination and
the magistrate failed to control him and
to ensure that the proceedings were accompanied by the necessary
decorum. But, that said,
it is also clear from the transcript that
the appellant was not intimidated by the prosecutor and gave him as
good as he got, and
there is no suggestion that the appellant was in
any way unable to put before the court what he wanted to by way of
his own evidence.
In this regard he gave detailed evidence as to why
he believed the UK authorities were not at liberty to seek his
extradition on
the new offences set out in the North Avon warrant and
why the law in the UK was discriminatory and he indicated that, other
than
to deny that he had molested or raped any of the children
concerned, and to allege that the police had manipulated the
witnesses
to say that the offences had allegedly been committed when
they were under the age of 16, he did not wish to say anything about

the offences, and relied on his right to silence.
80.
In the circumstances I
am satisfied that the appellant had a reasonable opportunity, during
his testimony, to put before the court
such evidence as he wanted to,
and it cannot be said that the irregularities which occurred were of
such a nature as to vitiate
the proceedings as a whole nor such that
it can be said that there was a fundamental failure of justice. Given
that the formalities
required in terms of the EA and the Convention
were otherwise complied with and the appellant was thus clearly
extraditable I am
consequently of the view that there is no cause to
set aside the proceedings, and in relation to the failure to allow
appellant
to put forward the affidavits and other evidence referred
to I propose this be remedied by returning the matter to the
magistrate
and affording the appellant such an opportunity, before
the matter is then referred to the Minister, by the magistrate,
together
with any such report as the magistrate may deem necessary in
this regard.
81.
Insofar
as costs are concerned, both parties may claim a measure of success.
Although the state was successful in warding off an
order in the
review application that the proceedings be set aside in their
entirety, the appellant equally was successful in obtaining
an order
allowing him to put forward certain evidence which the magistrate was
not prepared to receive, for his consideration and
submission to the
Minister. And both in the appeal and the review the appellant raised
important matters of law in relation to
extradition proceedings. In
the circumstances, as in the matter of
Harksen
[92]
inasmuch as the appellant sought to rely on the alleged
non-compliance with fair trial and constitutional requirements
pertaining
to an international agreement and domestic law, I am of
the view that each party should be liable for their own costs, in
respect
of both matters.
82.
In the result, I make
the following Order:
82.1
The review (in the
matter under case no 19434/17) and the appeal (in the matter under
case no. A 37/18) are dismissed.
82.2
The order made by the
magistrate of Cape Town on 10 November 2017  declaring that the
appellant/applicant is liable to be extradited
to the UK, in respect
of charges which have been preferred against him in terms of an
indictment which was lodged with the Bristol
Crown Court on 31 March
2016 as well as in respect of the offences set out in the warrant of
first instance which was issued by
the North Avon magistrates’
court on 26 February 2016, is confirmed.
82.3
The proceedings of the
extradition enquiry which was held before the magistrate of Cape Town
shall be re-opened, in order to allow
the appellant an opportunity,
if he so wishes, to put before the magistrate (for his consideration
and report to the Minister in
terms of s 10(4) of the Extradition
Act, 62 of 1967, if he deems it fit) within 15 days from date hereof
an affidavit by an expert
on UK law, in relation to the alleged
discriminatory features thereof pertaining to the sexual offences for
which the appellant
is sought for extradition to the UK, and any
documentary evidence pertaining to the alleged unfair media coverage
which the appellant
has received.
82.4
The Director of Public
Prosecutions shall have the right to file (a) further affidavit(s)
and/or submissions in response to any
affidavit and/or documentary
evidence which the appellant files in terms of the preceding
sub-paragraph, within 15 days thereof,
whereafter the magistrate
shall consider the further evidence, if any, which has been submitted
by the parties and shall thereafter
submit the record of the
proceedings together with such further evidence and any report as he
may deem necessary in respect thereof,
as well as a copy of this
judgment, to the Minister, as soon as possible, for his decision in
terms of s 11 of the Extradition
Act, 62 of 1967.
82.5
There shall be no order
as to costs.
ML
SHER
Judge
of the High Court
I
agree.
MI
SAMELA
Judge
of the High Court
Attendances:
Appellant’s/applicant’s
counsel: Adv J Van Der Berg
Appellant’s/applicant’s
attorneys: Mathewson & Gess Inc (Cape Town)
Respondent’s
counsel: Adv LJ Badenhorst
(Office
of the Director of Public Prosecutions, Cape Town)
[1]
I
n
terms of Article 16 of the European Convention on Extradition, to
which the UK and South Africa are both party.
[2]
In terms of s 5(1)(a) of the Extradition Act, 67 of 1962.
[3]
F
rom
a comparison of its contents with the judgment of the Court of
Appeal.
[4]
In this
regard Part 1 of Schedule 2 of the
Criminal Law Amendment Act 105 of
1997
provides that where the victim of rape is a child under the age
of 16 years the prescribed sentence shall, save where there are

substantial and compelling circumstances, be one of life
imprisonment.
[5]
No. 32 of
2007.
[6]
S 3.
[7]
S 5.
[8]
S 15(1).
[9]
S 16(1).
[10]
S 17.
[11]
See
Patel v The National
Director of Public Prosecutions
2017
(1) SACR 456
(SCA) at para [40].
[12]
NL v Frankel
2017 (2) SACR 257
(GJ), later confirmed by the Constitutional Court
sub nom Levenstein v Estate
of the Late Sidney Lewis Frankel
2018 (2) SACR 283
(CC).
[13]
Previously, there was a 20 year period for the institution of
criminal proceedings in respect of sexual offences other than rape.

In
Frankel
this distinction was held to be arbitrary and unconstitutional.
[14]
S 9(2).
[15]
Act 51 of
1977.
[16]
Of the Extradition Act, 67 of 1962.
[17]
Garrido v Director of
Public Prosecutions, Witwatersrand Local Division & Ors
2007 (1) SACR 1 (SCA).
[18]
S 10 (4) of
the Extradition Act provides that upon issuing an order of committal
pursuant to a finding that the person before
him is liable to be
extradited the magistrate shall forthwith forward to the Minister a
copy of the record of the proceedings,
together with such report as
he may deem necessary.
[19]
1968.
[20]
S 7(2)(a).
[21]
S 7(2)(b) and (c).
[22]
We were informed from the bar that the finding and sentence were
subsequently set aside by this Court, on appeal.
[23]
NJ
Botha
The History, Basis and
Current Status of the Right or Duty to Extradite in Public
International & SA Law
(LLD
thesis 1992)
[24]
Geuking v President of the
Republic of South Africa & Ors
2003 (3) SA 34
(CC) para [44].
[25]
No. 67 of 1962.
[26]
S 2(1) of the Act.
[27]
S 2(3)(a).
[28]
South
Africa ratified the Convention on 12 February 2003, and it came into
force domestically with effect from 13 May 2003. The
Convention has
been amended by a number of subsequent Protocols, the last of which
is the Fourth P
rotocol
(CETS no.212) which has been open for acceptance since 20 September
2012. South Africa has so far only adopted the Second
Protocol, with
effect from the date of its ratification of the Convention on 12
February 2003.
[29]
In terms of
s
5(1)(a).
[30]
S 9 (1).
[31]
Geuking
n 24 at para [50];
Director
of Public Prosecutions, Cape of Good Hope v Robinson
2005
(1) SACR 1
(CC) at para [33]
.
[32]
Id,
Geuking
at para [47].
[33]
Id
.
[34]
In
Administrator,
Transvaal, and Others v Traub and Others
[1989] ZASCA 90
;
1989 (4) SA 731
(A) at 748G it was said that ‘t
he
maxim [
audi
alteram partem
]
expresses a principle of natural justice which is part of our law.
The classic formulations of the principle state that, when
a statute
empowers a public official or body to give a decision prejudicially
affecting an individual in his liberty or property
or existing
rights, the latter has a right to be heard before the decision is
taken ... unless the statute expressly or by implication
indicates
the contrar
y
’.
In
Gavric
v Refugee Status Determination Officer, Cape Town & Ors
2019 (1) SA 21
(CC) which concerned an appeal against the decision
by a Refugee Status Determination Officer to refuse an application
for asylum
which was made pending extradition proceedings, the
Constitutional Court confirmed that the maxim constitutes a
fundamental principle
of administrative justice, which requires that
a person whose rights (in
casu
the right to freedom and bodily integrity) may be effected, should
be given a fair and meaningful opportunity to make representations

before the decision affecting such rights is made, which in turn
requires that he should be apprised of the substance of the
case
against him.
[35]
See
Garrido
n 17 at para [27].
[36]
Per
Goldstone J in
Geuking
n 24 para [1].
[37]
Minister of Home Affairs &
Ors v Emmanuel Tsebe & Ors; Minister of Justice &
Constitutional Development & Ano
v Emmanuel Tsebe & Ors
2012 (5) SA 467
(CC) at para [65].
[38]
As per
ss 10-12 of
the Constitution.
[39]
B
y
virtue of the provisions of s 7(2) of the Constitution.
[40]
Mohamed
v President of the Republic of South Africa (Society for the
Abolition of the Death Penalty in South Africa Intervening
2001
(3) SA 893 (CC).
[41]
In terms of s1 rtw s 6 of the EA an associated state is an African
state with which we have an extradition agreement, and all
other
foreign states are therefore non-associated states.
[42]
Note 31 at
para [52].
[43]
S 10(1) of the EA.
[44]
In terms of s11 of the EA.
[45]
S 35(3)(e) of the Constitution.
[46]
See RZ Tyler
The Impact of
the Bill of Rights on Extradition
(LLM
thesis, 2007) at p 14
et
seq
.
[47]
Vide
the decision of the Canadian Supreme Court in
Argentina
v Mellino
1987 1 SCR 536.
[48]
Note 46 at pp 12-13. See also Barrie
Human
Rights & Extradition Proceedings: Changing the Traditional
Landscape
1998 TSAR 126.
[49]
In s 12(2)(c)(i)-(ii).
[50]
Or even on the basis that the sentence to be served in the
requesting state would be ‘too severe’ a punishment. In
S v Williams
1988 (4) SA 49
(WLD) the Court held that the test in this regard was
whether the sentence was wholly inappropriate or unconscionable.
[51]
To which Angola, Botswana, the Democratic Republic of the Congo,
Lesotho, Malawi, Mauritius, Mozambique, Namibia, Seychelles,
South
Africa, Swaziland, Tanzania, Zambia and Zimbabwe are signatories.
[52]
Article 3.2.
[53]
Article 4(b) of the SADC Protocol on Extradition 2002 is in similar
terms, except that it includes ethnic origin and ‘status’

as grounds for refusal.
[54]
Also
commonly postulated in terms of the phrase ‘
substantial
grounds for believing there is a real risk’- as adopted in
a number of
decisions of the European Court of Human Rights (eg
Soering
v UK
[1989] ECHR 14
;
(1989) 11 EHRR 439
at para
[91]
in
casu
a real risk of being subjected to torture, or inhuman or degrading
treatment contrary to Article 3 of the European Convention
on Human
Rights, likewise in
Chabal
v UK
[1996] ECHR 54
;
(1996) 23 EHRR 413
at para
[80]
; and
Saadi
v Italy
(2009) EHRR 30
at para [125]) and has also been adopted by the House
of Lords (eg
Lord
Advocate (representing the Taiwanese Judicial Authorities) v Dean
(Scotland)
UKSC 44 which was decided on 28 June 2017, at para [25]) as well as
by our Constitutional Court vide
Tsebe
n 37 at para [67] where the Court said that SA would not hand over a
person to another country where to do so would expose him
to the
‘real risk’ of the imposition and execution of the death
penalty.
[55]
Vide
for example
Article 3
of the Extradition Treaty between SA and the Argentine Republic (GN
519 in GG 40978 of 14 July 2017).
[56]
S 13(a)-(b).
[57]
In
Al-Skeini v UK
(2011) 53 EHRR 18
at para [141].
[58]
In
Lord Advocate
n 54 at para [45].
[59]
See
Soering
n 54 at para [113] where the ECHR held that ‘the right to a
fair trial as embodied in Article 6 [of the European Convention
on
Human Rights] holds a prominent place in a democratic society. The
Court does not exclude that an issue might exceptionally
be raised
under Article 6 by an extradition decision in circumstances where
the fugitive has suffered or risks suffering a flagrant
denial of a
fair trial right in the requesting country’.
[60]
An
extraditable offence is defined in s 1 of the EA as an offence which
in terms of the law of the Republic and of the foreign
state
concerned is punishable with a sentence of imprisonment for a period
of 6 months or more, but excludes any offence under
military law
which is not also a criminal offence in both the Republic and the
requesting state, and at common law and in terms
of most treaties
so-called political offences are generally also excluded. In terms
of Art 2 of the European Convention on Extradition
an extraditable
offence is one which in terms of the law of the foreign state
concerned and of the Republic is punishable with
a sentence of
imprisonment for a period of at least 1 year or more, excluding
political offences (Art 3) and military offences
(Art 4) which are
not also criminal offences in both states.
[61]
Geuking
n 24 at para [42];
Garrido
n 17 at para [25].
[62]
The provisions which deal with them are
ss 129
-
140
of the
Criminal
Procedure Act, 51 of 1977
.
[63]
See
Lansdown and Campbell
South
African C
riminal
Law and Procedure
Vol V at
p 378.
[64]
An official
in charge of prosecutions and the p
redecessor
in title to the now Director of Public Prosecutions,
for
the province concerned.
[65]
S 10(1).
[66]
Harksen v The President of
the Republic of South Africa
1998 (2) SA 1011
(C) at para [99].
[67]
S 12(5)(d) of the Namibian Extradition Act 11 of 1996 is worded in
similar terms. Consequently, in
S
v Bigione
2002 (1) SACR
(NM) the Namibian High Court held that for the purposes of
extradition in Namibia
prima
facie
evidence of the
commission of an offence was required.
[68]
Note 24 at para [44].
[69]
I
n
terms of s 34 of the Constitution.
[70]
K Proust
International
Co-operation: A Commonwealth Perspective
2003 SACJ 295.
[71]
Id
at 303.
[72]
See
Article
6 of the SADC Protocol on Extradition 2002.
[73]
In many US states the standard of proof required is that of
‘probable cause’ see Proust n 68 at p 304.
[74]
I
n
terms of the Extradition Act SC 1999 C 18.
[75]
By way of an ‘apostille’ in terms of Schedule B of the
EA rtw s 9(3)(a)(i).
[76]
The EA provides for authentication (ie verification) to occur by
means of the signature and seal of office of the head of any
South
African diplomatic or consular mission or any honorary
consul-general, vice-consul or trade Commissioner or an officer
at a
South African diplomatic, consular or trade office (s
9(3)a)(iii)(aa)); or of any government authority of such foreign
state charged with the authentication of documents in terms of the
law of such state (s 9(3)a)(iii)(bb)); or of any notary public
or
any other duly authorised person of such foreign state
(s
9(3)(a)(iii)(cc)).
[77]
A
ct
45 of 1988.
[78]
In terms of
the
Law of Evidence Amendment Act 45 of 1988
, hearsay evidence is
now defined as evidence the probative value of which is dependent
upon the credibility of someone other
than the deponent thereto.
[79]
R v Alli
Ahmed
1913 TPD 500
at 502
.
[80]
In
Geuking
n 24 at para [80], Goldstone J held that it was not inappropriate or
unfair for the legislature to relieve the magistrate of
the
‘invidious task’ of deciding whether the conduct
warrants prosecution in the foreign state, as this was an issue
in
respect of which South African lawyers and judicial officers will
usually have no knowledge or expertise.
[81]
Article 12a-c.
[82]
S 3(1)(a)(i)
-(vii).
[83]
As per
Article 12.
[84]
Save for the offence of administering a ‘stupefying’
drug to one of his victims, which the state is no longer pursuing,

in line with the Court of Appeal’s comments in this regard.
[85]
S 7(2)(a).
[86]
S 7(2)(b)
and (c).
[87]
Unless the requested state consents.
[88]
S 2(3)(c)
and
3
(
bis
).
[89]
S 17.
[90]
Article 16.
[91]
Note 17 at
para [22].
[92]
Harksen v The President of
the Republic of South Africa & Ors
2000 (2) SA 825
(CC) at para [30].