Harksen v Minister of Justice and Constitutional Development of the Republic of South Africa and Others (4717/02) [2002] ZAWCHC 59; [2002] 4 All SA 642 (C) (5 November 2002)

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[2002] ZAWCHC 59
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Harksen v Minister of Justice and Constitutional Development of the Republic of South Africa and Others (4717/02) [2002] ZAWCHC 59; [2002] 4 All SA 642 (C); 2003 (1) SACR 489 (C) (5 November 2002)

IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF
GOOD HOPE PROVINCIAL DIVISION)
Case No: 4717/02
In the matter
between:
JÜRGEN
HARKSEN
Applicant
and
THE
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
OF THE REPUBLIC OF SOUTH AFRICA First Respondent
THE
DIRECTOR OF PUBLIC PROSECUTIONS,
WESTERN
CAPE
Second Respondent
THE
MINISTER OF CORRECTIONAL SERVICES
OF
THE REPUBLIC OF SOUTH AFRICA
Third Respondent
THE
MINISTER OF SAFETY AND SECURITY
OF
THE REPUBLIC OF SOUTH AFRICA
Fourth Respondent
JUDGMENT: 05 NOVEMBER 2002
VAN ZYL J:
INTRODUCTION
[1] This is an
application for the review, correction or setting aside of the first
respondent’s order, issued on 19 April 2002
pursuant to the
provisions of section 11 of the
Extradition Act
67 of 1962, in
terms of which the applicant was surrendered to the relevant
authorities of the Federal Republic of Germany, to be
prosecuted for
fraud allegedly committed by him in Germany. No relief is sought
against the remaining respondents, who were not represented
before us
and have abided the decision of this court.
[2] Subsequent to an
application during 1993 by the German government for the extradition
of the applicant to stand trial in Germany
on various charges of
fraud, the applicant became involved in a substantial number of legal
proceedings ostensibly aimed at avoiding
or delaying his extradition.
This culminated in his eventually indicating, during early 2002, that
he would consent to an extradition
order. It was envisaged that the
subsequent extradition enquiry, which was to commence on 10 April
2002 before Magistrate Freitag
in the Cape Town Magistrate’s Court,
would be of a purely formal nature.
[3] During
the course of the enquiry Mr Tredoux, for the second respondent,
handed up certain documentation by consent, including
a draft order
and a certificate in terms of section 10(2) of the
Extradition Act
67 of 1962. After consideration thereof, the magistrate granted an
order committing the applicant to prison “to await the Minister’s
decision with regard to his surrender to the Federal Republic of
Germany”. The relevant minister, being the first respondent,
accordingly
issued an order on 19 April 2002 in the following terms:
Whereas Mr JÜRGEN HARKSEN was committed to prison by the
Magistrate, Cape Town, in terms of section 10(1) of the Extradition
Act
(Act No. 67 of 1962),
Now therefore I, DR PENUELL MADUNA, Minister for Justice and
Constitutional Development of the Republic of South Africa, in terms
of section 11 of the said Act order the said accused to be
surrendered to persons authorized by the Federal Republic of Germany
to
receive him, to be prosecuted for committing fraud.
THE CASE FOR THE APPLICANT
[4] The applicant admitted that he had
consented to being extradited. He alleged, however, that it had
always been his intention to
make representations to the first
respondent concerning the specific charges on which he would stand
trial in Germany, inasmuch as
the German prosecuting authorities
would be limited to the charges specified in the extradition order.
It was incumbent on the first
respondent to give him a hearing and to
consider his representations. In the present instance, the applicant
alleged, the first respondent
had failed to do so. The ambit of the
aforesaid order was hence far too wide in that it exposed the
applicant to prosecution in Germany
“on virtually any charge of
fraud”, regardless of when or against whom such fraud had allegedly
been committed. An alternative
argument, namely that the order was
ultra vires
in that it had been issued before expiry of the
time period within which the applicant was entitled to appeal the
magistrate’s
decision, was not pursued with any vigour and does not
require further consideration.
[5] The applicant alleged further that it had been brought to his
knowledge that other interested parties had made representations
to
the first respondent regarding his extradition to Germany. At no
stage, however, had the applicant been afforded an opportunity
to
respond thereto. This was in conflict with “the tenets of natural
justice” and justified that the order be set aside.
[6] In a further affidavit, deposed to by the applicant subsequent to
delivery of the record of proceedings before the magistrate,
the
applicant alleged that the first respondent had not had insight into
a number of relevant documents. This documentation included
the
written request for his extradition by the German government, the
consent to his extradition signed by former President Mandela
and the
relevant notification signed by former Minister of Justice A M Omar.
It likewise included warrants for his arrest issued
by the lower
court of Hamburg on 22 October 1993 and, in amended form, on 13 June
1995. In addition it would appear to have included
the indictment
issued by the Regional Court of Hamburg on 13 January 2000, in which
a number of specified charges were preferred
against the applicant.
[7] The applicant attacked the extradition order of 19April 2002 (par
3 above) in that it did not limit the prosecution for alleged
fraud
to those charges on which a South African court had found him
extraditable. This meant that the prosecution in Germany should
be
limited to the charges brought by three German complainants,
Siegfried Greve, Hartmut Lowack and Dietrich Liedelt, as held by
Magistrate Wagenaar in an extradition enquiry conducted from late
1999 to early 2000. Although, in the extradition enquiry held on
10
April 2002, Magistrate Freitag had in fact confirmed this limitation,
it was not referred to in the first respondent’s order
dated 19
April 2002. Therein it was simply stated that the applicant was “to
be prosecuted for committing fraud”. This indicated
that the first
respondent had not been furnished with all the relevant documentation
and could hence not have applied his mind properly
before making the
aforesaid order.
[8] The applicant placed strong reliance on President Mandela’s
consent to his extradition in 1994, inasmuch as such consent was
restricted to the charges of fraud contained in the warrant for his
arrest dated 22 October 1993, as amended by the warrant issued
on 13
June 1995. This was also the basis of Minister Omar’s notification,
by means of which the extradition process was set in
motion. The
applicant’s consent to extradition was, he averred, specifically
restricted to the charges relating to the three aforesaid
complainants as set forth in such warrants. This appeared from the
record of proceedings before Magistrate Freitag.
[9] The applicant averred that he had a legitimate expectation that
the first respondent would afford him an opportunity to be heard
before granting his order. This would have enabled him to draw his
attention to the limitations to be placed on such order, more
specifically relating to the dates of the various counts of fraud
allegedly committed by him against Greve (four counts), Lowack
(twenty counts) and Liedelt (two counts). At a hearing the applicant
would likewise have been able to place the relevant German law,
including that relating to the provisions of the German Statute of
Limitations governing the prosecution of crimes, before the first
respondent. From this it would have been established that all the
alleged offences against the said three complainants had become
“statute-barred” and hence prescribed. Extradition of the
applicant would hence be “an exercise in futility” in that he
could
not be successfully prosecuted in Germany.
THE RESPONSE OF THE FIRST RESPONDENT
[10] In an answering affidavit on behalf
of the first respondent, Ms Theresia Bezuidenhout, the Director: Law
Enforcement in the Department
of Justice, pointed out that, in the
extradition proceedings before magistrate Freitag on 10 April 2002,
the applicant had been represented
by both senior and junior counsel.
On conclusion of the proceedings, the applicant’s legal
representatives had expressly and unequivocally
consented to the
submission of documentary evidence to the magistrate and had likewise
acquiesced in her findings and order. In this
regard the magistrate
held that there was sufficient evidence against the applicant, in
respect of the complainants Greve, Lowack
and Liedelt, to warrant a
prosecution on various charges of fraud. This finding was made on the
strength of the evidence presented
on affidavit, which the magistrate
accepted “separately and independently” as sufficient to warrant
a prosecution in Germany.
The applicant was hence liable to be
surrendered to Germany.
[11] After the magistrate had informed the applicant of his right to
appeal, the applicant indicated that he was “not deciding
to take
anything on appeal”. Shortly afterwards his legal representatives
confirmed this when they conveyed to the magistrate that
the
applicant had in fact waived his right to appeal. Despite this
assurance, the applicant brought an appeal that was heard by this
court on 29 July 2002. In her judgment Traverso DJP held (in par 34)
that the evidence presented at the trial “was so forceful
that even
without the Appellant’s consent the order was justified”. The
appeal was accordingly dismissed with costs. An application
for leave
to appeal was likewise dismissed with costs.
[12] In view of the applicant’s consent to extradition, Ms
Bezuidenhout submitted that the applicant was not entitled to a
hearing
before the first respondent and was likewise not entitled to
raise the issue of prescription since he had failed to raise it in
the
extradition proceedings. In any event, even if a South African
court should be at large to establish and interpret the relevant
German
law, which was doubtful, the argument had no merit.
[13] Ms Bezuidenhout further submitted that President Mandela’s
consent was not relevant for purposes of the order issued by the
first respondent on 19 April 2002. It merely served to set in motion
the machinery required for the consideration of an extradition
order.
For the same reason the first respondent did not have to take
cognizance of the indictment or the warrants of arrest. He had
sufficient information before him to enable him to make a considered
decision in granting the order in question. The principle of
speciality (specialty) would compel the German prosecuting
authorities to limit their prosecution to the charges specified in
his
findings by the magistrate. It could hence not be said that the
first respondent’s order was too wide.
[14] In a supporting affidavit deposed to by Mr Tredoux, who had
represented the second respondent in the extradition proceedings,
it
was pointed out that he and the representatives of the applicant had
agreed to hand in the relevant documentary evidence, including
a
certificate in terms of section 10(2) of the
Extradition Act
67 of 1962. He had personally prepared a draft order that he
furnished to the applicant’s representatives. They subsequently
informed
him that they had discussed it with the applicant, who had
consented to an order in terms thereof. It would hence not be
necessary
to adduce oral evidence, since the applicant wished to be
extradited.
[15] In his confirmatory affidavit the first respondent confirmed
that he had, on 19 April 2002, ordered that the applicant be
surrendered
to the appropriate authorities in Germany. He had done so
after thorough consideration of the information at his disposal and
after
he had applied his mind to all the relevant considerations. In
addition he considered the doctrine of speciality to be binding on
Germany and, in terms of international law, to be an implied
condition of his order. Such order, he said, “should not be
considered
in isolation but in conjunction with the findings and
order of Magistrate Freitag made on 10 April 2002 and the evidence
presented
to her during the proceedings before her”. At the time of
making the order he had been aware of the fact that the applicant had
consented to his extradition and had had no reason to believe that
the applicant did not regard his consent as binding. In any event
he
had subsequently considered the applicant’s founding and
supplementary affidavits and was satisfied that his order was
correct.
THE FIRST RESPONDENT’S AMENDED
ORDER
[16] At the commencement of argument
before us, Mr Louw, for the first respondent, handed up an amended
order signed by the first
respondent on 14 October 2002. Mr Uijs, for
the applicant, did not object thereto. It must hence be regarded as
having replaced the
original order dated 19 April 2002 (par 3 above).
[17] The amendment incorporates two paragraphs not appearing in the
original order. They read as follows:
The reference to
fraud in this order is a reference and is limited to the acts of
fraud committed against the complainants Messrs
Greve, Lowack and
Liedelt, particulars whereof are set forth in the indictment
permitted by the Regional Court of Hamburg, Federal
Republic of
Germany on 13 January 2000 and in respect of which Magistrate Freitag
made an order in terms of section 10(1) of Act
No 67 of 1962 in the
Magistrate’s Court of Cape Town on 10 April 2002.
Insofar as may be necessary it is hereby declared that this order is
made subject to the Principle of Speciality.
SUBMISSIONS ON BEHALF OF THE APPLICANT
[18] Mr Uijs placed great emphasis on
the failure of the first respondent to grant the applicant a hearing
before making his order,
even in its amended form. Although the
amendment went a long way towards curing the defects in the original
order, it did not, he
contended, go far enough. Had the first
respondent allowed the applicant to address him, he would have been
able to establish the
precise ambit of the applicant's consent. In
this regard Mr Uijs submitted that the applicant had not consented to
extradition, but
had only consented, on a limited and circumscribed
basis, to being committed to prison pending extradition on the
charges to which
President Mandela had given his
imprimatur
.
[19] Making the order subject to the principle or doctrine of
specialty, Mr Uijs suggested, did not have the effect that the German
prosecuting authorities would regard themselves as bound thereby. It
could not be assumed that Germany would prosecute the applicant
only
on the charges upon which his extradition had been ordered. At best
the prosecution would be limited to the offences on which
his
extradition had been "sought". It had therefore been
incumbent on the first respondent, Mr Uijs argued, to acquire
an
undertaking from the German authorities regarding the specification
of envisaged charges before making his order.
[20] On the issue of prescription Mr Uijs submitted that the first
respondent should have considered all the evidence placed before
Magistrate Freitag in the extradition enquiry. Had he done so, he
would have realised that all the charges relating to offences
allegedly
committed by the applicant and set forth in the indictment
issued by the Regional Court of Hamburg on 13 January 2000, had
become
"time-barred". Extradition under such circumstances
would then indeed be an exercise in futility, as averred by the
applicant.
SUBMISSIONS ON BEHALF OF THE FIRST
RESPONDENT
[21] Mr Louw dealt fully with the
various issues raised by the applicant in his affidavits and expanded
upon in argument by Mr Uijs.
The gist of his argument was that the
applicant had consented unequivocally and unconditionally to being
extradited to Germany to
stand trial on the various charges
identified by Magistrate Freitag and confirmed by the first
respondent in his amended order.
[22] Mr Louw submitted that the documentary evidence placed before
the magistrate had been sufficient to justify her findings and
order
even without the consent of the applicant. It is clear that she had
considered and applied her mind to such evidence fully
and
comprehensively.
[23] Nothing, Mr Louw suggested, had prevented the applicant from
making representations to the magistrate or to the first respondent,
should he have wished to do so. He chose, however, not to do so, but
rather to acquiesce in the findings and order of the magistrate
and
to accept extradition by order of the first respondent. The first
respondent was hence entitled to accept that the applicant
had indeed
consented to the order and in fact wished to be extradited to
Germany.
[24] On the issue of prescription, Mr Louw submitted, the applicant's
consent to the magistrate's order clearly excluded reliance
on this
defence. It had not been raised during the extradition proceedings or
in the subsequent appeal. In any event the court of
appeal had
rejected the argument on prescription, thereby rendering this issue
res iudicata
. Had it been raised, the State would doubtless
have been able to adduce evidence to establish that the charges
against the applicant
had not prescribed. Should this court permit it
to be raised on review, it would undoubtedly prejudice the State. On
the other hand,
if this court should be prevailed upon to apply
foreign (that is German) law, it would, on the merits, rule against
the applicant.
For present purposes it is not necessary to deal with
the arguments raised by Mr Louw in this regard.
[25] The doctrine of speciality, Mr Louw contended, would apply in
the present case as a matter of course, in that the German
prosecuting
authorities are, in terms of international law, bound
thereby. This means that the applicant may be tried only for offences
covered
by the factual allegations embodied in the request for
extradition and in respect of which extradition has been allowed.
There would
hence be no obligation on the first respondent to acquire
any undertaking in this regard from the German government before
making
his extradition order.
CONSIDERATION
OF THE ISSUES
[26] Much of the
argument raised by the applicant has already been considered, and
rejected, by this court. This is clearly a last-gasp
attempt by the
applicant to stave off the inevitable. Even more so is this the case
after substitution, with the consent of the parties,
of the first
respondent’s order of 19 April 2002 by the amended order dated 14
October 2002. The latter substantially cured the
alleged defects in
the former, leaving the applicant with only the most tenuous of
arguments in support of the relief sought.
[27] The issues remaining may, I believe, be
reduced to three, namely the first respondent’s alleged failure:
(a) to afford the
applicant a hearing; (b) to consider all relevant
documentation; and (c) to limit the ambit of his extradition order. I
shall deal
briefly with each.
The Alleged
Failure to Afford the Applicant a Hearing
[28] There is not the
slightest doubt that the applicant consented, unconditionally and
unequivocally, to the findings and order of
Magistrate Freitag in the
extradition proceedings. He in fact made it clear that he wished to
be extradited as soon as possible.
This was confirmed by his legal
counsel, who assured the magistrate that he had fully understood his
rights. He must hence be regarded
as having accepted the nature and
effect of his consent.
[29] The first respondent was, at all relevant
times, well aware of this consent and was perfectly justified in
accepting that the
applicant would likewise consent to an extradition
order in terms of section 11 of Act 67 of 1962. It was certainly not
incumbent
upon him to invite the applicant to make representations
prior to his making such order. In any event the applicant was free
to make
representations at any time before the granting of the order,
should he have wished to do so.
[30] The fact that certain other persons or
parties were allowed to make representations to the first respondent
prior to his issue
of the order is, in my view, quite irrelevant. It
was never suggested that the applicant had been prejudiced or
otherwise unfavourably
affected thereby in any way. Should he have
experienced any prejudice or discomfort, nothing stopped him from
approaching the first
respondent and requesting a hearing. At no
stage was he refused the right to make representations. He simply
chose not to do so.
[31] Even if the applicant had not given his
consent to and acquiesced in the magistrate’s findings and order,
the documentary evidence
submitted was so overwhelmingly persuasive
that the granting of an extradition order would have been fully
justified, as held by
Traverso DJP in the appeal to this court
against the extradition order (par 11 above).
The Alleged
Failure to Consider all Relevant Documents
[32] It appears to be
common cause that the first respondent had before him, at the time of
his considering the extradition order:
(a) a history of the matter as
set forth in a memorandum from the Department of Justice during May
1995; (b) the order of the magistrate
restricting the prosecution to
charges emanating from the three complainants, Greve, Lowack and
Liedelt; (c) a memorandum from the
second respondent dated 11 April
2002 informing the first respondent that the applicant had consented
to extradition and to the magistrate’s
findings and order relating
to some eighty charges of fraud in respect of the said three
complainants; and (d) the indictment issued
by the Regional Court of
Hamburg on 13 January 2000.
[33] In
his confirmatory affidavit, as mentioned above (par 15), the first
respondent averred that he had fully considered and applied
his mind
to the information at his disposal and to other relevant
considerations. He expressed the view that his order should be
read
in conjunction with the findings and order of Magistrate Freitag, as
based on the evidence submitted to her during the extradition
proceedings. He had been aware of the applicant’s consent thereto
and had no reason to believe that he did not regard it as binding.
That he had made the correct decision was in fact corroborated by his
subsequent perusal of the applicant’s founding and supplementary
affidavits in the present matter.
[34] The
amended order of 14 October 2002 (par 16-17 above) similarly reflects
the fact that the first respondent had insight into
the aforesaid
documentation, including the indictment issued by the Regional Court
of Hamburg on 13 January 2000. It is hence clear
that he applied his
mind fully to the case before him and was entirely justified in
making the extradition order. Such order would
have been competent
even if the applicant had not accorded his consent to the findings
and order of the magistrate.
The
Alleged Failure to Limit the Ambit of the Extradition Order
[35] This
issue has been cured by the amended order, in which the charges
brought by the three complainants, Greve, Lowack and Liedelt,
are
specified. It now accords with the findings in the extradition
enquiry before Magistrate Freitag.
[36] Even if
the order had not been amended, it is clear that the fraud referred
to in the original order relates to the finding,
by Magistrate
Freitag, of fraud committed by the applicant in respect of the said
three complainants. Such finding must, in my view,
be regarded as
being incorporated by reference. There is no question of fraud in
general and unspecified terms, or in respect of
unspecified charges
and complainants.
[37] The
suggestion that the specific charges may, wholly or partially, have
prescribed by effluxion of time has no merit at all.
As correctly
pointed out by Mr Louw, the issue of prescription was never raised in
the extradition proceedings on 10 April 2002 or
at any time between
such date and the date on which the extradition order was granted,
namely 19 April 2002. Just as a court of appeal
will generally refuse
to give consideration to a point not raised in the court below, so
also, I believe, a court of review will
be reluctant to do so, unless
justice, fairness and reasonableness require it. See
Donelly v
Barclays National Bank Ltd
1990 (1) SA 375
(W) at 380H-381B,
where somewhat more stringent requirements are laid down.
[38] Even if
it should be permissible to raise the issue of prescription for the
first time on review, it has already been considered
and rejected by
this court in the appeal against the extradition order (par 11
above), thereby rendering it
res iudicata
. See
African
Farms and Townships Ltd v Cape Town Municipality
1963 (2) SA 554
(A). Should this not be the case, the State would be severely
prejudiced inasmuch as it ostensibly refrained from leading evidence
to the contrary in view of the applicant's consent to extradition. In
any event, if there should indeed be merit in the prescription
defence, the applicant would, I expect, not be deprived of his right
to raise it in the German court where he is to stand trial.
[39] The
applicant made much of the applicability of the principle or doctrine
of speciality (specialty). This provides, in general
terms, that an
extradited person may be prosecuted, in the country to which he has
been surrendered, only in respect of the offences
for which
extradition has been requested and granted. See
Harksen v
President of the Republic of South Africa and Others
1998 (2) SA
1011
(C) at 1039F-G;
Minister of Justice and Another v Additional
Magistrate, Cape Town
2001 (2) SACR 49
(C) at 58i-59
b
.
See also the general discussion in S Bedi
Extradition in
International Law and Practice
(vol II 1991) 270-279 and
A
Jones
Jones on Extradition and Mutual Assistance
(2001) 2-048
- 2-078 (p59-77).
[40] The
first respondent made it quite clear in his confirmatory affidavit
that he considered the principle of speciality to be binding
on
Germany in terms of international law. It was indeed implied in his
original order, dated 19 April 2002, and expressed in his
amended
order dated 14 October 2002, where it is stated that the order "is
made subject to the Principle of Speciality".
In view of this
principle, there was no need to establish from the German authorities
which charges they wished to press against
the applicant or to
acquire any undertaking from them in this regard. The relevant
charges appeared with the utmost clarity in the
indictment of 13
January 2000. There is no reason to believe, in my view, that the
German authorities will ignore or bypass the international
law and
custom relating to the principle of speciality, by prosecuting the
applicant on any but the charges in respect of which extradition
was
sought and granted.
CONCLUSION
[41] It
follows that the applicant has failed to make out a case on any of
the grounds set forth above. The application must hence
be dismissed
with costs, including the costs of two counsel.
D H VAN
ZYL
I agree. It
is so ordered.
J H M
TRAVERSO
Acting
Judge President