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[2009] ZAGPPHC 64
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S v Mlotshwa (A972/2007) [2009] ZAGPPHC 64 (4 March 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
NORTH AND SOUTH PROVINCIAL DIVISION)
CASE
NO.: A972/2007
DATE:
04/03/2009
In
the matter between
RICARDO
MLOTSHWA APPELLANT
and
THE
STATE RESPONDENT
JUDGMENT
WEBSTER,
J
1.
This is an appeal in terms of section 13 of the Extradition Act No.
67 of 1962, against an order of a Magistrate in the Sebokeng
District
Court granting an order that the appellant be extradited to the
Republic of Botswana to stand trial on various charges
including a
charge of armed robbery committed by the appellant and other persons
at the Gaborone Airport, Botswana on 18 December,
2006.
2.
Having heard argument the appeal was dismissed and we undertook to
furnish our reasons therefore in due course. They are now
set out
below.
3.
It was common cause that at all relevant times hereto, extradition
between the Republic of Botswana and the Republic of South
Africa was
governed by the provisions by the Extraditions Act No. 67 of 1962
("the Act") and an Extradition Treaty entered
into between
the respective parties in 1969, as set out in Proclamation No. R118
of
1969 as contained in Government Gazette No. 2376 dated 2 May, 1969.
4.
Before dealing with the issues raised in the appeal, it is necessary
to place certain background facts on record. Among the persons
suspected of having been implicated in the robbery were Tebogo Mafisa
and the appellant. Tebogo Mafisa was arrested by Interpol
Police on 6
January, 2007, in Sebokeng. He appeared in the Sebokeng Magistrate's
Court charged individually. On 16 January, 2007,
an application for
the provisional arrest of the appellant as well as Tebogo Mafisa as
provided for in article 15 of the Extradition
Treaty was faxed from
the Interpol Police in Gabarone to the South African Interpol
authorities. The appellant was arrested by
Interpol in Everton and
appeared in the Johannesburg Magistrate's Court on 19 February, 2007.
On his appearance the matter was
transferred to the Sebokeng
Magistrate's Court. A different charge sheet was prepared in respect
of the appellant. In due course
an official application for the
extradition of Mafisa and the appellant was received by the South
African authorities. In the meantime
the matters in the Sebokeng
Magistrate's Court continued to be dealt with separately until the
date when the application was heard
when both matters were then
consolidated.
5.
At the hearing various documents were handed into court. These
included
inter
alia
(i)
a
request for the extradition in terms of section 9 and 10 (later
amended to section 12) of the Extradition Act.
(ii)
An
application for the extradition of Mafisa and others by the Republic
of Botswana with various official documents annexed thereto.
The
documents include affidavits which were signed and attested by
various commissioners of oaths and other State officials.
The
documents were all duly authenticated and two
apostilles
were
included in the bundle so handed in.
The
documents referred to were admitted in accordance with the provisions
of article 11 of the Treaty which provides that "...
any
deposition, statement on oath or affirmation, any record of a
conviction, any warrant... may be permitted by the law of the
requested party" shall be admitted in evidence. No evidence was
led by either of the parties.
6.
Various grounds were initially raised in the notice of appeal. When
the matter was argued before us, however, Mr Van Vuuren,
who appeared
for the appellant, intimated that he was restricting his argument to
the jurisdictional point relating to the transfer
of the matter from
the Johannesburg District Court to the Sebokeng District Court. He
did not formally abandon his other grounds
of appeal and I shall
touch on such grounds therefore in the judgment in due course.
7.
The grounds of appeal relied upon were firstly the jurisdictional
point alluded to above and in particular reliance had been
placed on
the fact that the trial Magistrate in the Johannesburg District Court
had lacked the jurisdiction to transfer the matter
from the district
in which the appellant was arrested to the Sebokeng District Court.
i
shall
innumerate the other grounds namely:
(ii)
that
the documents submitted by the Botswana Government and handed into
court and accepted by the trial court were not properly
authenticated
and therefore ought not to have been accepted as evidence;
(iii)
the
trial Magistrate erred in finding that the possibility of corporal
punishment on the appellant was a remote possibility;
(iv)
reliance
on a section 125 certificate in accordance with the provisions of the
Criminal Procedure Act from Johannesburg to Sebokeng
was irregular as
in provisions of section 125 of the Criminal Procedure Act cannot
override peremptory provisions of section 9
of the Extradition Act;
(v)
that
the provisions of section 9(3) of the Extradition Act were not
complied with.
Section
9 of the Extradition Act reads as follows:
"9.
Persons
detained under warrant to be brought before magistrate for holding of
an enquiry.
-
(1) 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.
(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 and shall, for the purpose
of
holding such enquiry, have the same powers, including the power of
committing any person for further examination and of admitting
to
bail any person detained, as he has at a preparatory examination so
held."
8.
My understanding of section 9(1) is that its provisions are
peremptory i.e. the Magistrate in whose area of jurisdiction a person
has been arrested is obliged to hold the enquiry for the surrender of
the person whose extradition is sought. (Garrigo v DPP WLD
and Others
2007(1) SACR 1 (para 4)) Section 9(2) of the Act specifies the
procedure or manner in which the Magistrate holding the
enquiry is to
conduct such enquiry, namely "a
preparatory
examination ... of a person charged with having committed an offence
in the Republic of South Africa ... and shall,
for the purposes of
holding such enquiry, have the same powers ... as he has at the
preparatory examination so held".
9.
The Extradition Act does not define what a preparatory examination
is. In my view this was clearly not necessary for the legislature
to
do. The Act is specifically directed at a person who has allegedly
committed criminal acts: that is clearly basic and fundamental.
The
only statute that provides for procedures and related criminal
procedures in this country is
Criminal Procedure Act 51 of 1977
.
10.
In my view the preparatory examination referred to in section 9(2) of
the Extradition Act can be none other than that which
is provided for
in chapter 20
(sections 123
to
138
of the
Criminal Procedure Act).
11.
It
is necessary for purposes of determining what "the same
powers as he has at the preparatory examination" a Magistrate
has under the provisions of section 9(2) of the Extradition Act. The
relevant section for purposes of this judgment is
section 125
of the
Criminal Procedure Act which
reads as follows:
"125.
Attorney-general may direct that preparatory examination be conducted
at a specified place.
-
(1) Where an attorney-general instructs that a preparatory
examination be instituted or that a trial be converted into a
preparatory
examination, he may, if it appears to him expedient on
account of the number of accused involved or of excessive
inconvenience
or of possible disturbance of the public order, that
the preparatory examination be held within his area of jurisdiction
in a court
other than the court in which the relevant proceedings
were commenced, direct that the preparatory examination be instituted
in
such other court or, where a trial has been converted into a
preparatory examination, be continued in such other court.
2.
The magistrate or regional magistrate shall, after advice of the
decision of the attorney-general, advise the accused of a decision
of
the attorney-general and adjourn the proceedings to such other court,
and thereafter forward a copy of the record of the proceedings,
certified as correct by the clerk of the court, to the court to which
the proceedings have been adjourned.
3.
The court to which the proceedings are adjourned under subsection
(2), shall receive the copy of the record referred to in that
subsection, which shall then form part of the proceedings of that
court, and shall proceed to conduct the preparatory examination
as if
it were a preparatory examination instituted in that court."
12.
It is clear from a reading of
section 125(2)
that the transfer of
Extradition proceedings is based essentially on expedience and not
primary jurisdiction. Even though it is
the Director of Public
Prosecutions (Attorney-General) who initiates the transfer of the
preparatory examination, from one court
to another, the court before
which the preparatory examination is pending has to consider the
interests of the arrested person
who are accused and safeguard their
interests. The transfer may not be ordered in my view, simply at the
behest of the Director
of Public Prosecutions and for the convenience
of only the State. The court is obliged to take into account the
interests of the
accused and satisfy himself/herself that such a
transfer is in accordance with justice and does not adversely affect
the interests
of the accused person. At the expense of repetition, it
is important to bear in mind that there were two persons arrested in
the
same case; it was the same two persons the application for
extradition related to. As it transpired later both these persons
were
represented by the same counsel. Again at the expense of
repetition, the appellant was transferred to Sebokeng with his
express
consent and with his agreement. Upon appearing in the
Sebokeng case he again confirmed his consent when he first appeared
without
his legal representative. He did so again when his legal
representative was present in court. The legal representative
confirmed
this. The Magistrate in Sebokeng therefore commenced the
hearing with the express consent of the appellant to the jurisdiction
of the court. In addition the court was furnished with a certificate
issued by the Director of Public Prosecutions in terms of
section 125
of the
Criminal Procedure Act.
For
the record, the consent of the appellant was withdrawn in the course
of argument whether extradition should be granted or not:
the
Magistrate declined to accept such a withdrawal of consent.
13.
It is against this background that the question of whether the
Magistrate in Johannesburg before whom the appellant first appeared
was ignorant of the provisions of section 9(1) and (2) of the
Extradition Act as well as section 75 and
section 125(2)
of the
Criminal Procedure Act arises
. There is no way in the absence of the
charge sheet of the proceedings in the Johannesburg court that one
can determine the answer
to the first question. There is further
nothing in the record to indicate that the Magistrate in the
Johannesburg court referred
to either
section 75
of section 125(2) of
the Criminal Procedure Act 51 of 1977 ("the CPA") when the
appellant appeared before him and the
matter was transferred to
Sebokeng. There is nothing in
section 75
of the
Criminal Procedure
Act which
suggests that (i) a Magistrate has the power to transfer
any matter before him/her to another court save where the court
before
which the accused is appearing for the first time in respect
of such offence either lacks jurisdiction
(section 75(l)(a)
and (b)
of the Criminal Procedure Act); or (ii) where the court has been
informed that the case is of such a nature or magnitude
that it
merits punishment in excess of the jurisdiction of the Magistrate's
Court but not the jurisdiction of a Regional Court"
(Section
75(2)(b)
of the
Criminal Procedure Act); (iii
) where the court only
for the purposes of bail and the prosecutor has designated a court
for the purposes of trial
(Section 75(3)
of the
Criminal Procedure
Act). It
is clear from all these instances, that the consent of an
accused person is not sought. It is my considered view that the
Johannesburg
Magistrate could not have acted arbitrarily when he
transferred the matter from Johannesburg to Sebokeng. It will be
recalled that
at the time that the appellant was arrested, Mafisa had
already been arrested and had appeared in the Sebokeng Magistrate's
Court.
The probabilities are also that the officials that were
dealing with the extradition of Mr Mafisa are likely to be the same
officials
who would have been dealing with the extradition of the
appellant herein. In this regard it is important to take account of
the
fact that even the original application for the arrest of the
appellant, Mafisa and the others had been contained in one document.
The record indicates that the Magistrate in Johannesburg transferred
the matter to Sebokeng for the convenience of the appellant.
That
convenience is clearly the consolidation of the application for
extradition and the sharing of legal representation. In my
view it is
unlikely that a Magistrate would have confused the powers set out in
section 75
of the
Criminal Procedure Act and
would have ordered a
transfer in accordance with the provisions of that section. What
appears more probable in my view is that,
being aware of the
provision in section 9(2) of the Extradition Act that the proceedings
for expatriation are in the form of a
preparatory examination, the
Magistrate would either have been invited to invoke the provisions of
section 125(2) to then transfer
the matter to another court for
purposes of convenience or taking into account the interests of the
appellant and his convenience,
such transfer was then ordered. It is
regrettable that the reasons for the transfer were never officially
placed on record at any
stage before the hearing of the application
for his extradition. It is my considered view therefore that the
Magistrate in Johannesburg
is less likely to have acted in conflict
with the provisions of section 75 and would have been ignorant of a
provision in the
Criminal Procedure Act which
would have authorised
him to act legitimately and in accordance with the
Criminal Procedure
Act
in ordering the transfer of the hearing to Sebokeng where Mafisa
was appearing.
14.
No prejudice appears to have been suffered by the appellant as a
result of the transfer. Nowhere in the record is there any
indication
of such prejudice. It is the court's considered view that even if the
Magistrate in Johannesburg may have purported
to act in accordance
with the provisions of
section 75
of the CPA, this court is entitled
to substitute the section under which he allegedly acted with the
correct section in the
Criminal Procedure Act. Authority
for this is
the inherent jurisdiction of the court of appeal to correct a patent
error. Accordingly the transfer of the matter
to Sebokeng was legally
valid.
15.
I turn now to consider the other grounds of appeal which were not
persisted in. An examination of all the official documents
that were
submitted by the State during the application for the extradition
shows that all documents in support of the application
were properly
authenticated. Article 11 of the Treaty has been referred to above in
this judgment. Every affidavit was properly
commissioned and it is
the court's view that
authentication
was executed and that all the documents handed into court and
accepted by the court were validly executed documents.
It did not
come as a surprise that Mr Van Vuuren did not persist with any
argument on this issue.
16.
The documents constituting the application disclose sufficient
evidence of the commission of armed robbery. There is also in
addition, a certificate issued in terms of section 10(2) of the
Extradition Act, indicating that there is sufficient evidence to
warrant a prosecution in Botswana. The application therefore is in
accordance with the requirements for extradition.
17.
I turn now to deal with the issue of corporal punishment. The penal
code of Botswana provides for the imposition of corporal
punishment
(section 28(4) of the Botswana Penal Code). The Magistrate dealing
with the application for the extradition dealt with
this issue in his
judgment. He pointed out that the imposition of corporal punishment
in accordance with the Botswana Penal Code
is discretionary. I agree
with his interpretation. He further referred to the case of State v
Williams 1988(4) SALR 49 (W) at 54E
where VAN SCHALKWYK AJ made the
following remarks:
"As
a matter of public policy it is, in my opinion, preferable that a
criminal should be punished according to the comparatively
harsh laws
of the country where the offence was committed than that he should
escape punishment altogether."
As
the trial Magistrate correctly points out, this remark must be
understood in the context of the time then prevailing and that
corporal punishment itself was still a competent sentence in South
Africa as well.
18.
Corporal
punishment was declared to be unconstitutional and to constitute an
infringement of the dignity of a person (State v Williams
and Others
1995(2) SACR 251 (CC). It is no longer imposed in this country. The
question is, whether based on this, the appellant's
extradition
should have been refused or whether, if granted, preconditions should
have been imposed that corpora! punishment be
not imposed on the
appellant or alternatively an undertaking be furnished by the
Government of Botswana that if convicted, it would
not be imposed on
the appellant.
19.
Our government has an obligation to protect fundamental human rights
of its citizens. The question is whether it would be proper
for this
court to refuse to surrender the appellant because of the possibility
that, if convicted in Botswana on the charges to
be preferred against
the appellant the Botswana trial court may, in exercising its
discretion, impose corporal punishment. The
starting point, in my
view, is that every country is "entitled to demand that ... [its
laws] ... be respected by everyone
within its territorial
jurisdiction, and also by other States. The ... [appellant] ... [has]
... no right to demand that the government
take action to prevent
those laws being applied ..." (Kaunda and Others v President of
the Republic of South Africa 2005(4)
SA 235 at page 257 (para 57).
20.
The next issue is that this court is to accord the necessary respect
and dignity to the Botswana government by not interfering
in its
judicial process "... for as long as the proceedings are
prescribed punishment consistent with international law ...
South
Africans who commit offences in foreign countries are liable to be
dealt with in accordance with the laws of those countries,
and not
the requirements of our constitution and are subject to the penalties
prescribed by such laws" (Kaunda and Others
(
supra)
at
page 267 (para 100). It is my considered view that representation
against any sentence that may be inconsistent with the basic
human
rights as enshrined in our constitution may not constitute a ground
for refusal to extradite a person who is wanted for commission
of
serious crimes. (Kaunda case –
supra)
21.
My
understanding of case law on this issue is that only if and when a
person in the position of the appellant is convicted and a
sentence
of corporal punishment ordered that the authorities in government in
this country may then apply to the Botswana government
that corporal
punishment be not carried out on the appellant. This appears to be
the
ratio
decidendi
in
the Kaunda case
{supra).
22.
It is my considered view therefore that even if the other grounds of
appeal had been persisted in, that the
appeal
would not have succeeded.
23.
It is my considered view that all the fundamental principles of
fairness, equity and justice were complied with and that the
order
for the appellant's extradition was correctly granted. The order for
his extradition is confirmed.
WEBSTER,
J
JUDGE
OF THE HIGH COURT
I
agree
PHATUDI,
J
JUDGE
OF THE HIGH COURT