About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2006
>>
[2006] ZASCA 169
|
|
Garrido v Director of Public Prosecutions, Witwatersrand Local Division and Others (177/05) [2006] ZASCA 169; [2007] 4 All SA 1100 (SCA); 2007 (1) SACR 1 (SCA) (28 September 2006)
REPUBLIC OF SOUTH AFRICA
THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
Case number: 177/05
Reportable
In the matter between:
NELSON YESTER PABLO GARRIDO
APPELLANT
and
THE DIRECTOR OF PUBLIC PROSECUTIONS
WITWATERSRAND LOCAL DIVISION FIRST
RESPONDENT
CLIFFORD McKELVEY SECOND RESPONDENT
Ms NAIDOO, MAGISTRATE RANDBURG THIRD RESPONDENT
THE MINISTER OF JUSTICE FOURTH RESPONDENT
CORAM
: FARLAM, CAMERON et PONNAN JJA
HEARD
: 30 AUGUST 2006
DELIVERED
: 28 SEPTEMBER 2006
SUMMARY:
Extradition –
enquiry under s
9, Act 67
of 1962 – respondent can adduce
evidence on issues relevant under s 11
Neutral citation: This
judgment may be referred to as
Garrido v DPP
[2006] SCA 122
(RSA).
_______________________________________________________________
JUDGMENT
________________________________________________________________
FARLAM JA
INTRODUCTION
[1] The appellant in this
matter appeals against a judgment given by Willis J in the
Johannesburg High Court dismissing with costs
his application to
review and set aside an order made by the third respondent, a
magistrate sitting in the Randburg magistrate’s
court,
committing the appellant to prison in terms of s 10(1) of the
Extradition Act 67 of 1962, as amended, to await the decision
of
fourth respondent, the Minister of Justice, with regard to his
surrender to the United States of America.
[2] The government of the
United States of America sent a request to the Minister for the
surrender of the appellant so that he can
stand trial in the United
States of America on charges relating to his alleged involvement in
an conspiracy to import into the United
States, possess and
distribute narcotics. A warrant was issued for his arrest under s
5(1) of the Extradition Act, to which I shall
refer in what follows
as ‘the Act’. After he had been detained under this
warrant he was brought before the third respondent
so that she could
hold an enquiry in terms of s 9 of the Act.
RELEVANT STATUTORY
PROVISIONS
[3] In order to render
what follows more easily intelligible it is necessary to say
something about the procedure outlined in the
Act for dealing with a
request from a foreign state for the surrender of a person believed
to be in this country where, as is the
position in the present case,
there is an extradition agreement between the foreign state
concerned, here the United States of America,
and the Republic.
[4] Section 9 of the Act
provides for the holding of an enquiry before a magistrate in whose
area of jurisdiction a person whose extradition
to a foreign state is
sought has been arrested. Section 9 (2), as far as is material, reads
as follows:
‘
(2) Subject to the provisions
of this Act the magistrate holding the enquiry shall proceed in the
manner in which a preparatory examination
is to be held in the case
of a person charged with having committed an offence in the Republic
. . . .’
[5] Section 10, as far as
is material is in the following terms:
‘
(1) If upon the consideration
of the evidence adduced at the enquiry . . . the magistrate finds
that the person brought before him
or her is liable to be surrendered
to the foreign State concerned and, in the case where such person is
accused of an offence, that
there is sufficient evidence to warrant a
prosecution for the offence in the foreign State concerned, the
magistrate shall issue
an order committing such person to prison to
await the Minister’s decision with regard to his or her
surrender, at the same
time informing such person that he or she may
within 15 days appeal against such order to the Supreme Court.
For purposes of satisfying himself or
herself 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 him or her to be issued by an
appropriate authority
in charge of the prosecution in the foreign
State concerned, stating that it has sufficient evidence at its
disposal to warrant
the prosecution of the person concerned.
If the magistrate finds that the
evidence does not warrant the issue of an order of committal or that
the required evidence is not
forthcoming within a reasonable time,
he shall discharge the person brought before him.
The magistrate issuing the order of
committal shall forthwith forward to the Minister a copy of the
record of the proceedings together
with such report as he may deem
necessary.’
[6] Section 11 reads as
follows:
‘
The Minister may –
order any person committed to prison
under section 10 to be surrendered to any person authorized by the
foreign State to receive
him or her; or
order that a person shall not be
surrendered –
where criminal proceedings against
such person are pending in the Republic, until such proceedings are
concluded and where such
proceedings result in a sentence of a term
of imprisonment, until such sentence has been served;
where such person is serving, or is
about to serve a sentence of a term of imprisonment, until such
sentence has been completed;
at all, before the expiration of a
period fixed by the Minister, if he or she is satisfied that by
reason of the trivial nature
of the offence or by reason of the
surrender not being required in good faith or in the interests of
justice, or that for any
other reason it would, having regard to
the distance, the facilities for communication and to all the
circumstances of the case,
be unjust or unreasonable or too severe
a punishment to surrender the person concerned; or
if he or she is satisfied that the
person concerned will be prosecuted or punished or prejudiced at
his or her trial in the foreign
State by reason of his or her
gender, race, religion, nationality or political opinion.’
[7] Apart from the fact
that the magistrate was not empowered to rule on the contention that
s 10(2) of the Act is unconstitutional
(see s 170 of the
Constitution) it is relevant to point out that after the hearing
before her, but before she gave her judgment,
the Constitutional
Court considered and rejected a challenge to the constitutionality of
s 10(2): see
Geuking v President of the Republic of South Africa
2003 (3) SA 34
(CC).
FACTS
[8] The enquiry commenced
on 22 August 2002. Before it began a document, headed Notice of
Objection, was filed on the appellant’s
behalf, in which were
set out sixteen grounds of objection to the extradition application.
The notice stated that the appellant would
raise these objections
‘in
limine
before he [was] called upon to answer’. In this
objection reference was made to a certificate, issued in terms of s
10(2) of
the Act, by Assistant United States Attorney Diana L.W.
Fernandez, of the Southern District of Florida, in which she
certified that
she had sufficient evidence at her disposal to warrant
prosecution of the appellant on the charges in respect of which his
extradition
was sought. The appellant asked the magistrate to declare
inter alia,
that the provisions of s 10(2) of the Act are
unconstitutional and that ‘no reliance [could] be placed on a
certificate purported
to be issued in terms of s 10(2)’. One of
the other points raised on the appellant’s behalf was the
documents relied
on by the State had been received out of time and
could not be relied on.
[9] At the start of the
appellant’s counsel’s address to the magistrate he said:
‘
Your worship we
submitted on the previous occasion . . . a Notice of Objection,
wherein various legal points were taken
in limine,
before
entering into the merits.’
[10] During the course of
the appellant’s counsel’s argument the magistrate stated
that her role at that stage was not
to act as the judge in the trial
matter but merely to see that she had sufficient evidence to warrant
a prosecution, not a conviction.
The appellant’s counsel then
responded to this comment by saying:
‘
Not even at this
stage. At this stage I am saying to you the papers are irregular for
the following reasons . . . . Thereafter I enter
into the merits and
I call people to testify, [the appellant] can be called to testify,
people can be called to testify in his support
or against his
affidavit and that is when we make that finding.’
Later on in his address
the appellant’s counsel said:
‘
I therefore submit
that the papers are not properly before this court within the
required time period and that your worship should
on the point
in
limine
uphold the respondent’s contention that this matter
should be dismissed and failing which your worship as I have already
alluded
to the next step would be to enter into the merits.’
At the end of his
argument the magistrate said to the appellant’s counsel:
‘
Is that it then?
You have no further address?’
Counsel replied:
‘
Yes on the
preliminary points. On the points
in limine
no. . . . . If it
is found against me then I will enter into the merits of the case,
your worship, at the next stage.’
The magistrate then
reserved judgment.
[11] When she delivered
her judgment the magistrate dealt with and rejected all the grounds
set forth in the appellant’s notice
of objection and proceeded
to find that the United States government had sufficient evidence at
its disposal to warrant the prosecution
of the respondent on the
charges contained in the indictment returned by the grand jury. She
concluded:
‘
The court
therefore submits that the requirements of s 10(1) of the Extradition
Act have been positively established and that the
respondent be taken
into custody pending the decision of the minister of justice.’
(As Willis J pointed out
in the court
a quo
the magistrate presumably used the word
‘submits’
per incuriam.
What she clearly meant was
that she found that the requirements of s 10(1) had been satisfied
and she therefore ordered that the appellant
be committed to prison
to await the Minister’s decision with regard to his surrender.)
[12] As soon as the
magistrate had finished giving her judgment the appellant’s
counsel pointed out that there seemed to be
some misunderstanding as
the points taken in the notice of objection were raised
in limine
and were not intended to deal with the merits. He said that it
was the appellant’s intention, as he put it, ‘to delve
into the merits of the matter and answer the allegations for the
court to make a determination in terms of section 10 of the Act.’
[13] He stressed that it
had been made clear that the notice of objection contained what he
called ‘an objection to the papers’
and that it was his
client’s intention, should he not succeed with his points
in
limine,
to ‘answer’ the papers.
[14] When the magistrate
asked the prosecution’s counsel to respond, he contended that
there was nothing more for the court
to do and that it was
functus
officio.
Later on, after the appellant’s counsel had again
addressed the court and said that the
audi alteram partem
principle had not been complied with, counsel for the prosecution
addressed the court again and submitted that, the technical
objections
raised by the appellant having been disposed of, it was
not for the court to give a decision on the question as to whether
the appellant
was innocent on the charges brought against him.
[15] The magistrate then
gave a further short judgment in which she said that she was of the
opinion that the
audi alteram partem
principle had been
complied with in that ‘the State and the [appellant] were given
ample opportunity to provide evidence in
this enquiry.’
[16] She referred to the
s 10(2) certificate that had been put before her and said that she
had no discretion to go beyond the certificate
and hold that there
was not sufficient evidence to warrant the prosecution of the
appellant on the charges set out in the request.
She added, however,
that she had perused the affidavits which accompanied the request as
well as the heads of argument presented
by the appellant’s
counsel and that she was in the circumstances of the opinion that the
evidence contained in the affidavits
contained sufficient evidence
for the appellant to be tried in the United States on the charges.
THE APPELLANT’S
MAIN CONTENTIONS
[17] In his founding
affidavit in support of his application for the magistrate’s
order committing him to prison to be reviewed
and set aside the
appellant stated that he had not been given the opportunity ‘to
lead evidence or indeed to explore factually
inter alia
the
issue of what “an appropriate authority of the requesting
State” may be as contemplated in the Act. . . . In particular,
I have not been able to test through the leading of appropriate
evidence as to whether Ms Fernandes, at whose instance the
application
was brought, is indeed the “appropriate authority”.
. . .’
[18] He also stated that
he wished to adduce evidence before the magistrate to establish what
he called ‘the paucity of credible
evidence’ which the
prosecution in the United States had available to lead against the
appellant. This, he said, was not only
relevant to the issue which
the magistrate had to decide, namely the sufficiency of the evidence
against him but also it brought
into question the
bona fides
of
the motivation provided by the United States authorities in support
of its request for his extradition. Although this was a matter
for
the Minister to decide, he pointed out in this regard that the
magistrate was obliged under s 10(4) of the Act to forward to
the
Minister a copy of the record of the proceedings together with such
report as she might deem necessary.
RESPONSE OF THE
RESPONDENTS
[19] A notice was filed
on behalf of the magistrate and the Minister in which they stated
that they abided the court’s decision.
In the answering
affidavit filed on behalf of the first respondent, the Director of
Public Prosecutions for the Witwatersrand Local
Division, which was
deposed to by Mr JR Davidowitz, a Deputy Director of Public
Prosecutions for the Witwatersrand Local Division,
it was stated that
although the argument on behalf of the appellant was presented in the
form of an argument
in limine
it was ‘directed at a
final decision on the two enquiries involved in an extradition
enquiry’. It was also contended that
the material which the
appellant wished to adduce on the alleged paucity of credible
evidence against him was irrelevant to the issues
to be decided
during an extradition enquiry. Mr Davidowitz also stated that the
appellant never advised the magistrate that the evidence
he wished to
present was for the purpose of influencing the Minister at the s 11
stage of the process and that the appellant could
submit
representations to the Minister in support of his allegation that the
request for his extradition was not made in good faith.
[20] Mr Davidowitz
contended that the appellant was given an opportunity to raise and
argue during the enquiry the issue as to whether
Ms Fernandes was the
‘appropriate authority’ to make the s 10(2) certificate.
Mr Davidowitz also averred that ‘once
the objection points were
not upheld by the [magistrate] there was (in terms of the Extradition
Act) nothing further for the court
of enquiry to consider, inquire
into or investigate’. He accordingly contended that the
appellant had suffered no prejudice
by the magistrate’s refusal
to allow him the opportunity to lead evidence on the merits.
JUDGMENT IN COURT
A
QUO
[21] In his judgment in
the court
a quo
Willis
J dismissed the appellant’s application to review the
magistrate’s decision because, so he held, the issues on
which
the appellant sought to lead further evidence before her were not
permitted. The learned judge came to this conclusion because
of the
statements made by the advocate who appeared for the appellant before
the magistrate that he wanted to lead evidence on ‘the
merits
of the case’ and that he wished, if the points
in
limine
were rejected, ‘to delve into
the merits of the matter and answer the allegations for the court to
make a determination in terms
of section 10 of the Act’.
DISCUSSION
[22] In my view the judge
a quo
gave an unduly
restricted interpretation to the expression ‘the merits of the
case’, which was used in contradistinction
to the preliminary
points, ie, those that could be argued on the papers before the
court. Thus the question as to whether Ms Fernandes
was ‘an
appropriate authority in charge of the prosecution’ in the
United States could not be dealt with as a preliminary
point on the
papers and was capable of constituting part of ‘the merits’.
Furthermore evidence adduced to show that the
appellant was not
guilty of the charges preferred against him and that the prosecution
in the United States was not in possession
of any credible evidence
to justify his prosecution was relevant to show, or attempt to show,
that the request was not made in good
faith. It is true that the
question as to whether the surrender of the appellant was being
requested in good faith was a matter for
the Minister to consider
under s 11(b)(iii) of the Act and not for the magistrate under s
10(2), but it was clearly a matter with
which the magistrate could
deal in her report to the Minister under s 10(4). As was said by
Goldstone J in
Geuking’s
case
(at 50 G-H), a respondent in an extradition enquiry being held under
s 10(2):
‘
is entitled to give and adduce
evidence at the enquiry which would have a bearing not only on the
magistrate’s decision under
s 10, but could have a bearing on
the exercise by the Minister of the discretion under s 11.’
[23] Counsel for the
first respondent contended that this statement was
obiter
and incorrect and that it should not be
followed. I do not agree that it was
obiter.
The issue before the Constitutional Court in
Geuking’s
case
was the constitutionality of s 10(2). As part of his reasoning in
concluding that the subsection is constitutional Goldstone
J had
regard in para [42] of his judgment to five matters which he said had
to be borne in mind in this context. The fifth was the
entitlement of
a person in the position of the appellant to give evidence on matters
having a bearing on the exercise by the Minister
of the discretion
under s 11. It follows that the statement I have quoted was part of
the
ratio
of the
judgment, which is accordingly binding on this Court.
[24] Apart from the fact
that I am satisfied that this statement is not
obiter,
I am also of the view that it is correct. I
say this because s 9(2), as has been seen, requires a magistrate
holding an enquiry to
‘proceed in the manner in which a
preparatory examination is to be held in the case of a person charged
with having committed
an offence in the Republic’. The manner
in which preparatory examinations are to be held is the subject of
Chapter 20 of the
Criminal Procedure Act 51 of 1977
, in which are to
be found
ss 133
and
134
which, as far as is material, provide as
follows:
‘
133. An accused may [after the
charge has been put to him and he has pleaded thereto] . . . give
evidence or make an unsworn statement
in relation to a charge put to
him . . .’
‘
134. An accused may call any
competent witness on behalf of the defence.’
[25] The magistrate’s
power to make such report to the Minister as he or she may deem
necessary is clearly designed to enable
him or her to give assistance
to the Minister in regard to the matters on which the Minister has to
exercise a discretion under
s 11.
That being so, it is clearly
appropriate that the person whose surrender to the foreign state
making the request is sought should
be entitled to place material
before the magistrate holding the enquiry in the hope of persuading
the magistrate to include material
in a report to be submitted to the
Minister which may induce the Minister to order that the person
concerned not be surrendered on
one or other of the grounds set forth
in
s 11(b).
[26] It is true, as Mr
Davidowitz pointed out in his affidavit, that the appellant never
advised the magistrate that the evidence
he wished to present was for
the purpose of influencing the Minister at the
s 11
stage of the
process but there is no provision in the Act which obliges a
respondent at an extradition enquiry to indicate in advance
for what
purpose he or she proposes adducing evidence.
[27] In the circumstances
it is clear that the magistrate failed to observe the procedural
requirements of
audi alteram partem,
and
that the order committing the appellant should, for this reason, be
set aside. The court
a quo
therefore
erred in dismissing the appellant’s application to review the
magistrate’s order and the appeal should be allowed.
For some
reason, which was not explained, counsel who appeared for the first
respondent at the enquiry (and indeed before Willis
J and this court)
was cited as the second respondent. There was clearly no basis for so
citing him and no basis exists for ordering
him to pay costs. In the
circumstances a costs order will only be made against the first
respondent.
ORDER
[28] The following order
is made:
The appeal succeeds with
costs, such costs to be paid by the first respondent.
The order made by the
court
a quo
is set aside and the following order is
substituted therefor:
‘
A The decision
made by the third respondent in the magistrate’s court for the
district of Randburg under case number B1594/02
committing the
applicant to prison to await the decision of the fourth respondent
with regard to his surrender to the United States
of America is
reviewed and set aside.
B The first respondent is
ordered to pay the applicant’s costs of suit in this
application.’
……………
..
IG FARLAM
JUDGE OF APPEAL
CONCURRING
CAMERON JA
PONNAN JA