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[2011] ZAFSHC 27
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Makwakwa and Others v S (A294/10) [2011] ZAFSHC 27 (11 February 2011)
FREE STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH AFRICA
APPEAL
NO: A294/10
In
the matter between:
ALBERTO
MAKWAKWA
…...............................................
1
ST
APPELLANT
ANGELO
MONDLANI
….....................................................
2
ND
APPELLANT
MANGANI
MALENGE
….....................................................
3
RD
APPELLANT
ABEL
NHATSAVE
…............................................................
4
TH
APPELLANT
GEORGE
THOMAS
…..........................................................
5
TH
APPELLANT
FRANCISCO
ALBERTO MANDLATE
…...........................
6
TH
APPELLANT
ROCKY
ANTONY MASINGA
….........................................
7
TH
APPELLANT
And
THE
STATE
…............................................................................
RESPONDENT
CORAM:
VAN DER MERWE, J et CJ MUSI, J
JUDGMENT
BY:
C.J. MUSI, J
HEARD
ON:
31 JANUARY 2011
DELIVERED
ON:
11 FEBRUARY 2011
[1] On the 22
nd
of April 2009 millions of eligible
South Africans exercised their democratic right to vote for their
respective political parties
and leaders. Ironically, on the same
day, in the neighbouring Kingdom of Lesotho, a constitutional
monarchy, a group of armed men
attempted to seize political power by
violent means.
[2] The appellants were arrested at
Ladybrand, on the 22
nd
of April 2009, for being illegal
immigrants and it was subsequently alleged that they participated in
the failed
coup
d’état
in
the Kingdom of Lesotho.
[3] The Minister of Law &
Constitutional Affairs of the Kingdom of Lesotho applied to the
Minister of Justice and Constitutional
Development of the Republic of
South Africa for their extradition, in terms of section 4 (1) of the
Extradition Act (the Act).
1
They were properly brought before a
magistrate, in terms of section 9 (1) of the Act, to hold an enquiry
with a view to surrender
them to the Kingdom of Lesotho.
2
It is alleged that they committed the
following offences in the Kingdom of Lesotho
viz
,
murder, attempted murder, robbery, kidnapping, illegal possession of
fire arms, contravention of the Internal Security Act of
the Kingdom
of Lesotho, contravention of the criminal Procedure and Evidence Act
of the Kingdom of Lesotho
viz
,
conspiracy to kill the Prime Minister of the Kingdom of Lesotho.
[4] The magistrate held an enquiry,
in terms of section 10 of the Act, and found that there is
prima
facie
evidence to
warrant a prosecution for the above mentioned offences in the Kingdom
of Lesotho and issued an order committing the
appellants to prison to
await the Minister of Justice and Constitutional Development’s
decision with regard to their surrender.
3
This appeal is against that order.
[5] Numerous witnesses testified at the enquiry. Their
evidence can be summarised as follows. On the 22
nd
of
April 2009 at approximately 01H30 Sergeant Motsoto (Motsoto) and his
colleagues were on duty at the Makoanyane Military Barracks.
A group
of armed men led by Mr Makotoko Lerotholi ( a former Warrant Officer
in the Lesotho Defence Force) accosted them, robbed
them off their
personal possessions and official firearms whereafter they were
forcefully taken to the offices of the Special Forces
where firearms
and ammunition were stolen by their assailants.
[6] Motsoto was instructed by Lerotholi to drive an
armoured vehicle to State House, the official residence of the Prime
Minister.
[7] On their arrival at State House a gun battle ensued
between Lerotholi’s men and soldiers who guard State House. The
guards
won the battle and Lerotholi’s men retreated back to
Makoanyane Military Barracks. When they tried to leave the barracks
the exit gate was blocked by soldiers who shot at them. They managed
to drive past the soldiers. At Ha Mosalla, Motsoto drove the
armoured
vehicle over a culvert rendering it immobile. He managed to escape
while Lerotholi and his men joined their co-conspirators
in a Land
Rover, which was also stolen from the barracks.
[8] At approximately 04H30 the
coup
plotters
hijacked a minibus taxi with registration letter and numbers A4928 at
Ha Tsolo, on the outskirts of Maseru. Members of
the Special Support
Unit saw the minibus at Selakhapane and stopped it. Another gun
battle ensued and some of the assailants fled.
Subsequently three
dead bodies and various firearms and ammunition were found in and
near the minibus. Another assailant was later
found dead at Ha Makebe
near the border between the Kingdom of Lesotho and the Republic of
South Africa. Two of the assailants
were arrested in the Kingdom of
Lesotho and are already arraigned in that State.
[9] On the 22
nd
of April 2009 at
approximately 08H15 Warrant Officer Phaphang was called to Mr Dirk Du
Toit’s farm, in the Ladybrand district,
where he found the
fifth appellant who identified himself as George Thomas from Maputo.
The fifth appellant was bleeding profusely
from a gunshot wound on
his left upper torso. He was arrested for being an illegal immigrant
and taken to Mantsopa Hospital for
medical treatment.
[10] On the same morning at approximately 09H30 Warrant
Officer Masimong stopped the first appellant near the farm
Middlekraal,
in the district of Ladybrand. His left middle finger was
injured and he was barefoot. He told Masimong that he is from
Mozambique
and speaks Portuguese and a little bit of Sesotho. When he
was asked how he sustained the injury he told Masimong about the
shooting
that occurred in the Kingdom of Lesotho during the early
hours of the morning. He was arrested for being an illegal immigrant.
[11] Meanwhile at approximately the same time (09H30)
Sergeant Motete arrested the fourth appellant in Ladybrand town. He
said that
he was from Mozambique and that his identity document is
with his employer, Jeff. He was also arrested for being an illegal
immigrant.
[12] The same evening at 19H30 Warrant Officer Finger
did border patrol duty in the district of Ladybrand when he happened
upon
the second, third, sixth and seventh appellants while they were
walking on a gravel road near the border. Three of them were bare
feet. They had no documents allowing them to be legally in the
Republic of South Africa. They informed him that they were from
Mozambique. Only the seventh appellant could speak Sesotho. He could
not communicate properly with the other three appellants.
He arrested
them for being illegal immigrants.
[13] Mr Simon Mnguni (Mnguni) - a South African citizen
- testified that he was recruited in Gauteng by a person named Jesse
to
assist in overthrowing the government of the Kingdom of Lesotho.
He confirmed that he, the seven appellants and other persons went
to
Kingdom of Lesotho. He further confirmed that they all participated
in the attempted
coup.
He escaped after the foiled attempt to
enter State House and was arrested at Ladybrand on the 22
nd
of April 2009. He was promised immunity from prosecution if he spoke
the truth.
[14] Captain Letseleha confirmed that on 22 April 2009
he went to the Mantsopa Hospital where he met Inspector Phaphang and
the
fifth appellant, who presented a gunshot wound. He could not
communicate with the fifth appellant because he spoke Portuguese. At
09H30 he went to the Ladybrand Police Station where he interviewed
the first appellant, who presented an injury on his left hand.
The
first appellant told him that he sustained the injury after being
shot by members of Lesotho Defence Force during the attempted
coup
.
The first appellant related the whole incident to him, which he wrote
down.
[15] At 19H30 he interviewed the seventh appellant who
told him that they were contractors in the employ of the one Jezi
Ramakatane.
The other three men that were with the seventh appellant
could only speak Shangaan and Portuguese. The seventh appellant could
not tell him where they were coming from or where they were going to.
At some stage the seventh appellant said he was a South African
from
Katlehong.
[16] On 23 April 2009 at approximately 00H30 he
interviewed Simon Mnguni. Mnguni informed him that he was recruited
by Jezi Ramakatane.
He further informed him that he and other
Mozambican men travelled to the Kingdom of Lesotho where they
kidnapped soldiers, stole
firearms and ammunition and attempted to
enter State House in order to kidnap the Prime Minister of the
Kingdom of Lesotho.
[17] Captain Letseleha could not identify the persons
who he interviewed.
[18] Motsoto identified the first, second, fifth and
seventh appellants as being part of the group of men that accosted
him and
his colleagues. Corporal Sekonyela, who was stationed at
State House, identified the first, fifth and seventh appellants as
being
part of the group of armed men that were involved in the
shoot-out at State House.
[19] Mr Leaba Linus Thetsane the Director of Public
Prosecutor of the Kingdom of Lesotho confirmed that the appellants
are sought
in the Kingdom of Lesotho for the crimes mentioned in
paragraph three of this judgment and that warrants for their
respective arrests
have already been issued in the Kingdom of
Lesotho. He confirmed that the Minister of Law & Constitutional
Affairs of the Kingdom
of Lesotho has given an unequivocal assurance
that the death penalty will not be carried out should it be imposed
for the murder
counts. He also confirmed that all those offences
carry penalties of more than six months imprisonment. He further
confirmed his
certificate to the effect that there is a
prima
facie
case against the appellants in respect of the offences for
which extradition is sought. He stated that Jesse Ramakatane who is
currently in the Republic of South Africa is a permanent resident of
the Kingdom of Lesotho and wanted in that country for crimes
allegedly committed between 10 and 17 June 2007.
[20] The appellants denied that they participated in the
attempted
coup
. None of them testified.
[21] Mr Nel on behalf of all the appellants argued that
the words, “sufficient evidence to warrant a prosecution”
in
section 10(1) and (2) of the Act mean that the magistrate must
find that there is evidence beyond reasonable doubt that the
appellants
committed the alleged offences. Allied to and intertwined
therewith he argued that the evidence before the magistrate was not
sufficient
to warrant the conclusion that it established beyond a
reasonable doubt that the appellants committed the alleged offences
because
the magistrate:
admitted inadmissible evidence;
made an adverse inference from the appellants’
failure to give evidence during the injury;
failed to attach sufficient weight to the
contradictions in the version presented by the State;
did not properly consider the circumstantial evidence.
[22] Mr Botha on behalf of the respondent supported the
magistrate’s findings.
[23] Extradition is deemed a
sovereign act. It is a process, initiated by an adequately founded,
formal request from one sovereign
State to another, based on treaty,
reciprocity or comity, by means of which one or more person/s accused
or convicted of the commission
of a serious crime within the
jurisdiction of the requesting State, is surrendered to competent
courts in the territory of that
State for trial or sentence.
4
The Act and, where applicable, an
extradition agreement regulates and governs extradition from the
Republic of South Africa. Extradition
proceedings are
sui
generis.
The
purpose of such proceedings is not to determine the person’s
guilt or innocence but rather to ascertain whether the person
is
liable to be surrendered to the foreign State concerned for the
imposition or enforcement of a sentence or because, like in
this
case, the person is accused of committing a serious offence in the
foreign State.
5
[24] In considering whether the appellants are liable to
be surrendered the magistrate had to be satisfied that:
24.1 appellants are the persons sought by the Kingdom of
Lesotho;
24.2 there is an extradition agreement between the
Republic of South Africa and the Kingdom of Lesotho;
24.3 the offences for which the
appellants are sought are an extraditable offences;
6
24.4 there is sufficient evidence to
warrant a prosecution for the offences in the Kingdom of Lesotho –
whether by way of
evidence or a certificate in terms of section 10
(2) of the Act;
7
24.5 if a section 10 (2) certificate is relied on, that
it was issued by an appropriate authority in charge of the
prosecution in
the Kingdom of Lesotho and that it states that there
is sufficient evidence to warrant a prosecution in that State.
[25] It is not in dispute that:
25.1. warrants for the arrest of the appellants were
issued in the Kingdom of Lesotho and they are therefore sought in
that country.
25.2. there is an extradition agreement between the
Republic of South Africa and the Kingdom of Lesotho
25.3. the common law offences (murder, kidnapping,
robbery) and the statutory offences (possession of firearms an
ammunition, conspiracy
to commit an offence) for which they are
sought are also offences in the Republic of South Africa.
25.3.1 The offences are not exclusively military law
offences.
25.3.2 The offences are punishable with a sentence of
imprisonment or other form of deprivation of liberty for a period of
six month
or more.
25.4 That the certificate, in terms of section 10 (2),
was issued by an appropriate authority in charge of the prosecution
in the
Kingdom of Lesotho.
[26] As indicated above the
contentious point is whether the magistrate’s finding that
there is
prima facie
evidence to warrant a prosecution for
the offences means that there is sufficient evidence warranting a
prosecution. The appellants,
by implication, also dispute that the
certificate complies with the prescripts of the Act.
[27] It is clear from the Act and the
extradition treaty between the Republic of South Africa and the
Kingdom of Lesotho that where
a certificate in terms of section 10(2)
is relied upon the prosecuting authority in charge of the prosecution
of the case in the
Kingdom of Lesotho must certify that there is
sufficient evidence under the law of the Kingdom of Lesotho to
warrant the prosecution
of the fugitive.
8
[28] In this matter the certificate
contains a summary of the available evidence and a statement that
“there is a
prima–facie
case against the suspects on the
offences for which extradition is sought.”
[29] The deviation, by the prosecutor
of the Kingdom of Lesotho, from the words used in the Act and the
treaty is part of the problem
because it necessitates an inquiry into
whether a
prima
facie
case or
prima
facie
evidence is
tantamount to sufficient evidence to warrant a prosecution.
[30] In order to discern what sufficient evidence to
warrant a prosecution in section 10 of the Act means, the starting
point is
the plain language of the statute.
In Adampol (Pty) Ltd v
Administrator, Transvaal
it was put thus:
“
The Plain meaning of the language in a
statute is the safest guide
to
follow in construing the statute. According to the golden or general
rule of construction the words of a statute must be given
their
ordinary, literal and grammatical meaning and if by so doing it is
ascertained that the words are clear and unambiguous,
then effect
should be given to their ordinary meaning unless it is apparent that
such a literal construction falls within one of
those exceptional
cases in which it would be permissible for a court of law to part
from such a literal construction, eg where
it leads to a manifest
absurdity, inconsistency, hardship or a result contrary to the
legislative intent.”
9
[31] Sufficient is defined as
“
legally satisfactory.
Adequate to satisfy an – argument, situation etc, satisfactory.
Especially in sufficient condition,
reasons. (2) Adequate (especially
in quantity or extent) for a certain purpose, enough (for a person or
thing, to do something)…Achieving
an object; effective.
Possession talent or ability; competent, capable…”
10
Evidence is defined in the same
dictionary as follows
“
serve
as or give evidence for, attest Establish by evidence, demonstrate,
prove…”
[32] Proof beyond reasonable doubt in
adversarial systems such as ours and that of the Kingdom of Lesotho
is the highest standard
of proof but the minimum standard required
for a conviction.
11
This stage is normally reached after
the court has listened to all the evidence adduced by the prosecution
and the accused. That
being the case, it is inconceivable that the
Legislator would have intended to require the Kingdom of Lesotho’s
prosecutor
to produce proof beyond reasonable doubt as sufficient
evidence to warrant a prosecution in that State. It would in any
event be
impossible to produce such proof before the merits of the
matter has been finalised. The appellants’ argument is without
merit.
[33] An enquiry in terms of section 9
of the Act is not a criminal trial. Its purpose is to enable the
magistrate to determine whether
there is sufficient evidence to
warrant a prosecution for the offence in the foreign State. It is not
necessary for the prosecutor
to place all the evidence needed to
prove the guilt of the person beyond reasonable doubt before the
magistrate. The prosecutor
need only place admissible and reliable
evidence before the magistrate during the enquiry which if accepted
at the subsequent trial
may be enough to prove that the person has
committed the offences for which s/he is sought. Conversely if the
evidence is of such
poor quality or unreliable that it is obvious to
the magistrate that there are no reasonable prospects that the
evidence would
be accepted at the subsequent trial the magistrate may
find that there is insufficient evidence to warrant a prosecution.
12
[34] It is therefore clear that what is required by the
section is adequate admissible proof to warrant a prosecution. The
evidence
must be sufficient for the purpose of instituting a
prosecution and not sufficient to prove the guilt of the person.
[35] The decision to institute a prosecution rests with
the prosecuting authority or prosecutor of the foreign State. The
question
whether there is sufficient evidence must therefore be
viewed through the prism of the prosecutor.
[36] The magistrate would look at the totality of the
evidence presented before him/her in order to make a fair and
dispassionate
assessment thereof. S/He will ask himself/herself
whether there is admissible and reliable evidence which if accepted
at the trial
would provide a realistic or reasonable prospect of a
conviction, for the offences that the person would be charged with.
[37] If a section 10(2) certificate
is relied upon the prosecutor in South Africa need not prove that
there is sufficient evidence
to warrant a prosecution. The prosecutor
of the foreign State decides, based on the law of that State, whether
there is sufficient
evidence to warrant a prosecution for the offence
in that State. If s/he is so satisfied s/he issues a certificate to
that effect.
The certificate becomes conclusive proof of that fact
and obviates the need for the South African prosecutor to prove that
there
is, in terms of the foreign State’s law, sufficient
evidence to prosecute the fugitive. Does
prima
facie
evidence
referred to, by the Director of Public Prosecution in his certificate
and the magistrate in his judgment, constitute sufficient
evidence to
warrant a prosecution?
[38] In
Ex
Parte
The Minister
of Justice: In Re Rex v Jacobson & Levy
13
Stratford JA defined
prima
facie
evidence as
follows:
“”
Prima facie”
evidence in its usual sense, is used to
mean
prima facie
proof of an issue the burden of proving
which is upon the party giving that evidence. In the absence of
further evidence from the
other side, the prima facie proof becomes
conclusive proof and the party giving it discharges his onus. It is
not, however, in
every case that the burden of proof can be
discharged by giving less than complete proof on the issue; it
depends upon the nature
of the case and the relative ability of the
parties to contribute evidence on that issue. If the party on whom
lies the burden
of proof, goes as far as he reasonably can in
producing evidence and that evidence “calls for an answer”
then, in such
case, he has produced
prima
facie
proof,
and, in the absence of an answer from the other side, it becomes
conclusive proof and he completely discharges his onus of
proof. If a
doubtful or unsatisfactory answer is given it is equivalent to no
answer and the prima facie proof, being undestroyed,
again amounts to
full proof.”
14
[39] The above definition of
prima
facie
evidence
refers to
prima
facie
evidence
adduced during a criminal or civil trial. At the trial stage the
question of
prima
facie
evidence will
normally arise at the end of the State’s case, in criminal
proceedings, or at the end of the case of the party
upon whom the
burden of proof lies in a civil matter. It therefore presupposes that
the one side’s evidence was tested or
left unchallenged by the
other side.
Prima
facie
evidence to
warrant a prosecution for purposes of the Act is not, in my view,
prima facie
evidence in the “usual sense.”
As indicated above the magistrate conducting an enquiry in terms of
section 10 must ask
whether the evidence presented before him/her, if
presented and accepted at the trial, may be enough to prove that the
person has
committed the offence. The question is whether the
evidence provides a realistic and reasonable prospect of a
conviction.
15
[40] There are varying degrees of
prima facie
evidence.
Prima
facie
evidence can
consist of incomplete evidence, for example a single piece of
circumstantial evidence (a fingerprint) which will easily
dissipate
in the face of a plausible explanation. On the other hand it may be a
strong prima facie case (eg. eye witnesses, forensic
evidence and a
confession).
16
Prima facie
evidence at its weakest is sufficient
evidence to institute a prosecution.
Prima
facie
evidence to
warrant a prosecution in all its manifestations, weak or strong, will
therefore constitute sufficient evidence to warrant
a prosecution.
Insufficient evidence to warrant a prosecution can never be a
prima
facie
case or
constitute
prima
facie
evidence to
warrant a prosecution. A
prima
facie
case or
prima
facie
evidence
against a person encapsulates the notion of sufficient evidence to
warrant a prosecution. In my view the words used by
the Director of
Public Prosecutions, of the Kingdom of Lesotho, convey nothing less
than there is sufficient evidence against the
appellants to warrant
prosecuting them for the offences for which they are sought in the
Kingdom of Lesotho. The Director of Public
Prosecutions probably used
the phrase
prima
facie
case because
that is the standard required in the Kingdom of Lesotho to institute
a prosecution.
17
The certificate therefore
substantially complies with the prescripts of the Act. It is
conclusive proof that the Director of Public
Prosecutions of the
Kingdom of Lesotho has sufficient evidence to prosecute the
appellants.
[41] The fact that the magistrate did not hold a trial
within a trial to consider the evidence of Captain Letseleha is in my
view
not fatal for three interlinked reasons. Firstly, the magistrate
was not called upon to decide, beyond reasonable doubt, whether
the
evidence is admissible but whether that evidence in conjunction with
the other evidence would more likely than not be admitted
at the
trial. Secondly, the magistrate was not called upon to determine the
guilt of the appellants. Thirdly the magistrate was
not called upon
to adjudge the credibility of the witnesses at this stage. That is
the task of the trial court. The credibility
of the witnesses plays a
very limited role during such an inquiry. When, for instance, it is
clear that the witnesses’ evidence
would in all probability not
be believed at the subsequent trial then the credibility of the
witness would be of importance.
[42] The argument that the magistrate did not evaluate
the evidence properly is also without merit. The Director of Public
Prosecutions
testified that there is a
prima facie
case
against all the appellants. His evidence was left unchallenged
because, according to the appellants, it was of a technical
nature
and did not affect their version. He was not even asked why he says
that there is a
prima facie
case against the appellants. Well,
the appellants are wrong. It did affect their version!
[43] Mnguni identified all the appellants as persons
with whom he went to the Kingdom of Lesotho to try and overthrow the
legitimate
government of that State. His evidence may not be flawless
but it cannot be said that there is no reasonable prospect that it
might
be accepted during the subsequent trial. His evidence is
supported by Motsoto who identified the first, second, fifth and
seventh
appellants as some of the persons who accosted them.
Sekonyela identified the first, fifth and seventh appellants as the
persons
who tried to enter State House on that evening. The seventh
appellant and Mnguni mention a person by the name of Jesse or Jezi
who happens to be known by the authorities in the Kingdom of Lesotho
as a fugitive from justice. Six of the seven appellants were
from
Mozambique and illegally in the Republic of South Africa. They were
all arrested on the same day at a town next to the border
and none of
them could give an acceptable explanation for their presence thereat.
Two of the appellants presented gunshot wounds
and they explained
that they were injured in the Kingdom of Lesotho. The evidence is not
only sufficient but overwhelming.
[44] I do not think that it is necessary to decide
whether the magistrate was right or wrong in finding that the
appellants’
election not to testify prejudiced them. This
finding does not vitiate the proceedings. It is clear that this was
said as an afterthought,
after he came to the conclusion that the
evidence implicating the seven appellants was “very damning.”
[45] In my view, the magistrate’s finding that
there is
prima facie
evidence to warrant a prosecution of the
appellants cannot be faulted. This appeal ought to be dismissed.
[46] I accordingly make the following order:
(a) The appeal is dismissed.
____________________
C J Musi, J
I agree.
_____________________
Van der Merwe, J
1
Section
4 (1) of the Extradition Act 67 of 1962 reads as follows:
“
Subject to the terms of any
extradition agreement any request for the surrender of any person to
a foreign State shall be made
to the Minister by a person recognized
by the Minister as a diplomatic or consular representative of that
State or by any Minister
of that State communicating with the
Minister through diplomatic channels existing between the Republic
and such State.”
2
Section
9(1) of the Act reads as follows:
“
Any person detained under a
warrant of arrest or a warrant for his further detention, shall, as
soon as possible be brought before
a magistrate in whose area of
jurisdiction he has been arrested, whereupon such magistrate shall
hold an enquiry with a view
to the surrender of such person to the
foreign State concerned.”
3
Section
10 (1) and (2) of the Act reads as follows:
“
(1) If upon consideration of
the evidence adduced at the enquiry referred to in section 9 (4) and
(b) (i) the magistrate find
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 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
purpose 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.”
4
See
NJ Botha in The Law of South Africa, 2
nd
Ed 10 part 1 at 185 par 219
5
See
Geuking v President of the Republic of South Africa
2003 (3) SA 34
(CC) at paragraph 26 and
paragraph
50.
6
Extraditable
offence is defined in section 1 of the Act as:
“
Any offence which in terms of
the law of the Republic and of the foreign State concerned is
punishable with a sentence of imprisonment
or other form of
deprivation of liberty for a period of six months or more, but
excluding any offence under military law which
is not also an
offence under the ordinary criminal law of Republic and of such
foreign State;”
7
See
Geuking at paragraph 37
8
See
section 10 (2) of the Act and Article 7 (1) (e) of the extradition
treaty between the Republic of South Africa and the Kingdom
of
Lesotho, signed on 19 April 2001 and ratified on 15 November 2001 by
the Parliament of the Republic of South Africa as published
in
Government Gazette No 26375, Vol 467 dated 28 May 2004 states that:
“
The following documents shall
be submitted in support of a request for extradition in the case of
a request submitted by the Kingdom
of Lesotho, a certificate issued
by the prosecutor in charge of the prosecution of the case
containing a summary of the available
evidence and a statement that
the evidence is sufficient under the law of the Requesting State to
warrant the prosecution of
the person sought.”
9
1989
(3) SA 800
AD at 804 A-C.
10
See
The New Shorter Oxford English Dictionary Volume 2. Glarendon Press
Oxford, Edited by Lesley Brown.
11
The
standard of proof required in criminal matters in the Kingdom of
Lesotho was inter alia set out by the erstwhile Chief Justice
of the
Kingdom of Lesotho Kheola CJ in Rex v Tefo Khemi case number
CRI/T/80/91 judgment delivered on 29 March 1996. See also
Maboka v R
(2000-2004) LAC 1
at 15 J to 16 A. I may take judicial notice of the
law of the Kingdom of Lesotho because it can be ascertained readily
and with
sufficient certainty. See
section 1(1)
of the
Law of
Evidence Amendment Act 45 of 1988
.
12
See
IN RE GONIWE AND OTHERS (INQUEST)
1994 (3) SA 877
(SECLD) at 879
13
1931
AD 466
at 468
14
See
also S v Boesak
2000 (3) SA 361
(SCA) at paragraph [46] and [47].
15
Part
4
A2 of the National Director of Public Prosecutions’ policy
directives issued in terms of
section 21(1)(b)
of the
National
Prosecuting Authority Act 32 of 1998
reads as follows: “…
no final decision to proceed with the prosecution should be taken
unless, upon a thorough assessment
of all the available facts,
evidence and circumstances, there is a reasonable prospect of a
successful prosecution.” In
my view successful prosecution in
this context means a conviction.
16
See
S v Ali
2011 SACR 34
(ECP) at paragraphs 8 and 12 where the term
strong prima facie evidence was used.
17
See
Rantlali Nkeeane v DPP High Court of Lesotho case number
CRI/APN/506/2005 judgment by Mahase AJ delivered on 16/11/2005;
Phenyeke Tuoane v DPP High Court of Lesotho case number CRI/APN/
499/04 judgment by Monapathi J delivered on 8/11/2004.