S v Stokes (532/07) [2008] ZASCA 72; [2008] 4 All SA 260 (SCA); 2008 (5) SA 644 (SCA) ; 2008 (2) SACR 307 (SCA) (30 May 2008)

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[2008] ZASCA 72
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S v Stokes (532/07) [2008] ZASCA 72; [2008] 4 All SA 260 (SCA); 2008 (5) SA 644 (SCA) ; 2008 (2) SACR 307 (SCA) (30 May 2008)

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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
CASE NO: 532/07
In the matter between :
IAN EUGENE STOKES
...
Appellant
and
THE STATE
...
Respondent
___________________________________________________________________________
Before: STREICHER, FARLAM, CACHALIA JJA, LEACH & KGOMO AJJA
Heard: 19 MAY 2008
Delivered: 30 MAY 2008
Summary:
Extradition – s 19 of Act
67 of 1962 – only offences disclosed to requested state and
fugitive constitute offences in respect
of which extradition was
sought – ‘sought’ to be interpreted to mean ‘successfully
sought’.
Neutral citation: Stokes v The State (532/07)
[2008] ZASCA 72
(30
May 2008)
___________________________________________________________________________
J U D G M E N T
___________________________________________________________________________
STREICHER JA
STREICHER JA
:
[1] The appellant, after having been extradited by the
United States of America to South Africa, was served with an
indictment in
terms of which he is charged with theft (count 1) and
three counts of fraud alternatively theft (counts 2, 3 and 4)
committed before
his extradition. He contends that, in terms of s 19
of the Extradition Act 67 of 1962, he may not be charged in respect
of these
offences in that they are not the offences in respect of
which his extradition was sought. His application, on this ground, to
the
Durban and Coast Local Division (the court a quo) failed in
respect of counts 1 and 2 but succeeded in respect of counts 3 and 4.
With the leave of the court a quo he now appeals against the finding
in respect of counts 1 and 2.
[2] Section 19 provides as follows:
‘
No person surrendered to the Republic by any
foreign State in terms of an extradition agreement . . . shall, until
he or she has been
returned or had an opportunity of returning to
such foreign . . . State, be detained or tried in the Republic for
any offence committed
prior to his or her surrender other than the
offence in respect of which extradition was sought or an offence of
which he or she
may lawfully be convicted on a charge of the offence
in respect of which extradition was sought, unless such foreign . . .
State
or such person consents thereto: Provided . . .’
[3] The only issue to be determined is whether the
appellant’s extradition was sought in respect of the offences
alleged in counts
1 and 2. These counts read as follows:
Count 1
‘
[D]
uring the period
14 September 1998 to 02 November 2000 and at or near La Lucia Ridge
in the district of Durban the accused unlawfully
and intentionally
took and stole from the persons referred to in column 2 the monies
reflected in column 3 totaling the amount of
R6 877 215,60
. . .
and the accused thus created a general deficiency of R6 877 215,60
. . . in respect of these monies so deposited, the property
or in the
lawful position of the persons listed in column 2 of Annexure ‘A’.’
Count 2
‘On or about August 1998 and at or near Durban in the regional
division of KwaZulu/Natal the accused did unlawfully and with intent
to defraud, misrepresent to Robert Sevel that:
1. He had submitted numerous claims to the RAF,
2. That the claims submitted by him had been processed,
3. That the RAF had paid out on the claims submitted by him,
4. He had made a substantial profit out of the processing of the
claims submitted by him to the RAF.
And did thus induce Robert Sevel to his prejudice or potential
prejudice to:
1. Believe that by depositing money with the accused for investment
in the business of discounting RAF claims a substantial profit
was to
be made.
2. Enter into a partnership with the accused and form the close
corporation known as R & I Promotions CC.
3. Deposit an amount of R2 000 000,00 (TWO MILLION RAND)
into a bank account of the accused.
Whereas when the accused made the said misrepresentation he knew that
1. He had submitted no claims to the RAF.
2. The RAF had not paid out in respect of any claims submitted by
him.
3. No profits had been made out of the processing of claims against
the RAF submitted by him.
4. And that any or all representations and or information made to or
supplied to Robert Sevel was false.
And therefore the accused is guilty of fraud.
In the alternative
Theft
The accused is guilty of the crime of theft in that on or about 14
September 1998 and at or near Durban in the Regional Division
of
KwaZulu-Natal, the accused did unlawfully and intentionally steal
cash money in the sum of R2 000 000,00 . . . the property
or in the lawful possession of Robert Sevel.’
[4] The appellant practised as an attorney in South
Africa until 2 November 2000 when he left the country and took up
residence in
the United States of America. Shortly after he had left
South Africa several people laid criminal charges against him as a
result
of which the Government of South Africa (‘the RSA’)
initiated steps to have him extradited to South Africa. These steps
led to
a warrant for the appellant’s arrest being issued by The
United States District Court for the Northern District of Georgia
Atlanta
Division. The warrant was issued on the strength of an
affidavit by one Candiss L Howard an Assistant United States
Attorney.
[5] In the affidavit by Howard, she stated that there is
an extradition treaty in force between the United States and the
Republic
of South Africa and that she was acting on behalf of the RSA
who had asked the United States through diplomatic channels for the
provisional arrest of the appellant with a view to his extradition.
She stated that according to information provided by the RSA
a
warrant had been issued for his arrest in respect of charges of
theft, contravention of s 78(4) of the Attorneys Act 53 of
1979
and contravention of the
Insolvency Act 24 of 1936
. She stated,
furthermore, that sworn statements had been obtained from -
(i) various people who allege that money had been
entrusted to the appellant in his capacity as an attorney and that he
had misappropriated
the money so entrusted to him;
(ii) Mr Gregory Noel Kruger to the effect that he is the
president of the Kwa Zulu Natal Law Society, and that the appellant’s
name
had been struck from the roll of attorneys due to complaints
that he had misappropriated trust moneys; and
(iii) Mr Hendrik Lourens Martinus Du Plessis, stating
that he is the claims director of the Attorneys Fidelity Fund, a fund
whose
main purpose is to reimburse members of the public who suffered
pecuniary loss as a result of theft of trust monies, which had been
entrusted to an attorney in the ordinary course of his practice; and
that the fund had received claims totalling R26 842 972,99.
[6] It is common cause between the parties that there is
indeed an extradition treaty between the US and the RSA in terms of
which
the parties agreed to extradite to each other, pursuant to the
provisions of the treaty, persons whom the authorities in the
requesting
state had charged with or convicted of an extraditable
offence.
[7] In terms of article 9 of the treaty a request for
extradition has to be supported by various statements and documents.
Article
13, however, makes provision for a provisional arrest. The
article provides as follows:
‘
1 In case of urgency, the Requesting State may,
for the purpose of extradition, request, the provisional arrest of
the person sought
pending presentation of the documents in support of
the extradition request. . . .
2 The application for provisional arrest shall contain:
(a) a description of the person sought;
(b) the location of the person sought, if known;
(c) a description of the offence(s);
(d) a concise statement of the acts or omissions
alleged to constitute the offence(s);
(e) a description of the punishment that can be
imposed or has been imposed for the offence(s);
(f) a statement that a document referred to in
Article 9(3)(a) . . . exists; and
(g) a statement that the documents supporting the
extradition request for the person sought will follow within the time
specified
in this Treaty.’
The document referred to in subpara (f) is a warrant or
order of arrest issued by a judge or other competent authority.
[8] Upon his arrest the appellant deposed to an
affidavit in terms of which he stated that he had been fully informed
by his attorney
of his rights under the extradition treaty in force
between the United States and the Republic of South Africa and that
he waived
those rights and petitioned the Court to expedite his
return, in custody, to the Republic of South Africa. Article 19 of
the treaty
makes provision for such a waiver. It reads as follows:
‘
If the person sought consents to be surrendered
to the Requesting State, the Requested State may surrender the person
as expeditiously
as possible without further proceedings.’
[9] As a result of the appellant’s waiver he was
returned to South Africa and documents which had already been
prepared in support
of a request to the US to extradite him were
never forwarded to the US. The court a quo held that, in the light of
the waiver, the
provisional arrest application became the source for
later determining ‘the offence in respect of which extradition was
sought’
for purposes of the application of s 19 of the Act.
The court a quo, thus, in effect, held that the documents prepared in
support
of the request but not forwarded to the US were irrelevant.
Counsel for the appellant submitted that the court a quo erred and
that
those documents were relevant in order to determine in respect
of which offences the extradition of the appellant was sought. He
submitted that the appellant’s waiver and his surrender by the US
on the strength of his waiver are irrelevant as one does not
have to
determine in respect of which offences the appellant waived his
rights and was surrendered, one has to determine in respect
of which
offences the appellant’s extradition was sought.
[10] Section 19 differs from
what is known as the doctrine of speciality in terms of which ‘the
person surrendered shall be
tried and punished exclusively for
offences for which extradition had been requested and granted’ (not
sought) except after the
fugitive offender has been given an
opportunity to return to the extraditing country.
1
However, the word ‘sought’ in s
19 could not have been intended to mean anything other than
‘successfully sought’. This is
so because extradition may have
been sought in respect of offences A, B and C and may have been
granted only in respect of offence
A. To interpret ‘sought’ so as
to mean only ‘sought’ and not ‘successfully sought’ would
have the anomalous result that,
in terms of the section, the fugitive
may be prosecuted in respect of offences B and C without the consent
of the requested state
or the fugitive, whereas the section
specifically requires such consent in respect of offences other than
offences A, B and C. To
interpret ‘sought’ so as to relate to
offences for which extradition was required but not disclosed to the
requested state or
to the fugitive would have an equally anomalous
result.
[11] By the time that the appellant was surrendered to
the RSA no document in support of a formal request for extradition
had reached
the US authorities. Counsel for the appellant submitted
that these documents were nevertheless relevant in so far as they
defined
the offences in respect of which extradition of the appellant
was required more narrowly. I do not agree. Not having forwarded
these
documents to the US the RSA never sought the extradition of the
appellant in respect of the offences described in those documents.
At
best for the appellant the RSA intended to seek his extradition in
respect of those offences but never advised the US and the
appellant
accordingly. The US was advised that the extradition of the appellant
was sought in respect of the offences mentioned in
the application
for provisional arrest, the appellant waived his rights on that basis
and the US surrendered him to the RSA on the
strength of that waiver.
Those are the offences in respect of which he may be prosecuted and
neither the US nor the appellant can
have any complaint about such a
prosecution. The question that has to be decided is, therefore, as
was held by the court a quo, whether
the offences alleged in counts 1
and 2 of the indictment are the offences in respect of which the
appellant’s extradition was sought
in terms of the application for
his provisional arrest.
[12] In count 1 it is alleged that the appellant
received from each of thirteen persons (individuals or firms) an
amount of money,
in total R6 877 215,60, to be held in
trust by him and that he committed theft in that he stole that amount
from the persons
mentioned, thereby creating a general deficiency of
R6 877 215,60. This is a charge as envisaged in
s 100
of the
Criminal Procedure Act 51 of 1977
which reads as follows:
‘
On a charge alleging the theft of money or
property by a person entrusted with the control thereof, the charge
may allege a general
deficiency in a stated amount, notwithstanding
that such general deficiency is made up of specific sums of money or
articles or of
a sum of money representing the value of specific
articles, the theft of which extended over a period.’
[13] Relying on
S
v Verwey
1968 (4)
SA 682
(A) at 689D-E counsel for the appellant submitted that,
notwithstanding the provisions of
s 100
, each specific theft
would have to be proved. As the names of only three of the thirteen
persons mentioned in the indictment were
mentioned in the application
for the provisional arrest, he submitted that a charge of theft in
respect of the other ten were to
be excluded in terms of
s 19
as
the appellant’s extradition had not been sought in respect of those
offences.
[14] Again I do not agree with the submission. The
application for the appellant’s provisional arrest made it clear
that his extradition
was sought in respect of the theft of moneys
which had been entrusted to him and which he had stolen. In support
of the contention
affidavits had been obtained from a number of
people to the effect that they had entrusted money to the appellant
and that he had
misappropriated such money. It is also stated in the
application that the Attorneys Fidelity Fund, whose main purpose is
to reimburse
members of the public who have suffered pecuniary loss
as a result of theft of trust monies entrusted to an attorney in the
ordinary
course of his practice, had received claims totalling R26m.
Nowhere is it suggested that the extradition of the appellant is or
would
only be sought in respect of the monies stolen from the persons
whose names are mentioned and from whom affidavits had been obtained.
The application does not purport to identify all the people from whom
money had been stolen or the exact amount of the theft. If
the
intention was to charge the appellant with theft only in respect of
the money alleged to have been stolen from the persons whose
names
are mentioned, the reference to the affidavit by Du Plessis would
have been irrelevant. I, therefore, agree with the court
a quo that
‘the factual statements made at the time, at the very least, also
did not exclude further banking accounts and/or complainants
asserting the loss of money entrusted to the applicant, coming to
light and being added to the list of complainants making up count
1’.
The extradition of the appellant was sought in respect of the
misappropriation of money entrusted to him by the people whose
names
are mentioned in the application as well as others whose names were
not disclosed. It follows that the appellant’s application
was
correctly dismissed in so far as it related to count 1.
[15] The main charge contained in count 2 is one of
fraud and the alternative is one of theft. In respect of the fraud
charge it is
alleged that the appellant made a number of
misrepresentations to Robert Sevel and thereby induced him to his
prejudice or potential
prejudice to deposit an amount of R2 000 000
into a bank account of the appellant. In the application for
provisional arrest
it is alleged, in so far as Sevel is concerned,
that the appellant and Sevel were members of a close corporation. The
close corporation
was to purchase road accident claims and pursue the
claims against the Road Accident Fund. Sevel provided working capital
in an amount
of R2 000 000 by paying the amount into the
trust account of the appellant. The appellant, however, did not
purchase any
claims but stole the money. No mention is made of fraud
or of any misrepresentations ever having been made by the appellant.
[16] The court a quo held in regard to count 2 that
although fraud was not mentioned in the application for the
provisional arrest
of the applicant ‘the allegations though lacking
in detail and not always clearly verbalised therein, nevertheless and
if accepted
at face value, in substance provide an acceptable basis
for the formulation of count 2 in its present form’. In my view the
court
a quo erred in this regard. As stated above, no indication
whatsoever was given in the application that the extradition of the
appellant
was being sought in respect of misrepresentations having
been made by him. Fraud is therefore not an offence in respect of
which
the appellant’s extradition was sought.
[17] The appellant did not contend that the alternative
charge of theft under count 2 had not been disclosed in the
application. It
follows that the appeal in so far as it relates to
the main charge of fraud under count 2 should succeed and that it
should be dismissed
in respect of the alternative charge of theft.
[18] The following order is made:
(i) The appeal in so far as it relates to count 1 and
the alternative charge of theft under count 2 is dismissed.
(ii) The appeal in so far as it relates to the main
charge of fraud under count 2 is upheld.
(iii) The following order is substituted for the order
of the court a quo in so far as it relates to counts 1 and 2:
(a) The application in so far as it
relates to count 1 and the alternative charge of theft under count 2
is dismissed.
(b) The application in so far as it
relates to the main charge of fraud under count 2 succeeds and it is
declared that the State may
not proceed with the prosecution in
respect of this charge.
_____________________
P E STREICHER
JUDGE OF APPEAL
CONCUR
:
FARLAM JA)
CACHALIA JA)
LEACH AJA)
KGOMO AJA)
1
Ian
Brownlie
Principles of Public
International Law
4 ed p316;
Harksen
v President of the Republic of South Africa
1998
(2) SA 1011
(C) at 1039F-G;
Zoeller v
Attorney-General
(Cth)
(1987) 76 ALR
267
(Fed C of A);
Halsbury’s Laws of
England
4 ed vol 18 para 217;
Harksen
v Minister of Justice and Constitutional Development
2003
(1) SACR 489
(C) at 499 para [39].