IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE NO: 4979/2021
& A226/2021
In the matter between:
IAIN GEORGE DALLAS WARES Applicant
And
THE ADDITIONAL MAGISTRATE,
SIMONSTOWN, CAPE TOWN First Respondent
THE MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES Second Respondent
THE DIRECTOR OF PUBLIC PROSECUTIONS,
WESTERN CAPE Third Respondent
Bench: P.A.L. Gamble & R.C.A. Henney, JJ.
Heard 27 October & 14 November 2023
Delivered: 8 August 2024
This judgment was handed down electronically by circulation to the parties'
representatives via email and release to SAFLII. The date and time for hand-down is
deemed to be 10h00 on Thursday 8 August 2024.
JUDGMENT
___________________________________________________________________
GAMBLE & HENNEY, JJ
INTRODUCTION
1. The appellant is an 84-year-old man who resides in the Cape Peninsula. He is
a self-confessed paedophile who is sought by the prosecuting authorities in Scotland
to stand trial on various counts relating to what our law defines as a “sexual offence”1
perpetrated on teenage boys at elite schools in the Edinburgh area during the
1970’s.
2. In submissions made to the second respondent (the Minister) in circumstances
described more fully hereunder, the appellant explains that after he graduated from a
local university with a degree in psy chology in 1962 he took up teaching posts at
various boys’ schools , notwithstanding the fact that he did not have a formal
qualification as an educator . He describes how , over time, his urges to sexually
molest learners overtook him to the extent that he c ould not control himself and his
conduct became habitual.
3. The appellant says that in 1967 he consulted a local mental health practitioner
who recommended certain therapeutic interventions. When these ultimately proved
ineffective, it was suggested to the appellant that he should seek further help in
Scotland from a therapist who specialized in the treatment of his condition and so he
relocated to Scotland for that purpose in 1967 . While there for treatment , the
appellant qualified as a teacher and took up employment at exclusive boys-only
1 See s1 and Ch 2 – 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act,
32 of 2007 (“SORMA”).
schools where he once again committed various sexual offences . He says he also
turned to drink over time.
4. After being found out when a learne r complained to the principal about being
sexually molested, the appellant lost his work in 1979 and decided to return to South
Africa accompanied by his wife whom he had met and married in Scotland. He says
that he disclosed his past to his wife at that time and since his return home has not
indulged in any further sexual offences.
5. In circumstances which are not entirely clear to us (but which are of no legal
consequence), the appellant’s identity and whereabouts came to the attention of
certain of his alleged victims who pressed charges against him in Scotland. The
eventual result of this was that in September 2018 the High Commissioner for the
United Kingdom in South Africa requested the authorities to extradite the appellant
under the Extradition Act 67 of 1962 (the Act) to stand trial in Edinburgh on 6
charges of what are described in Scottish law as “lewd, indecent and libidinous
practices and behavio ur” and a single charge of so-called “indecent assault”. The
application for th e appellant’s extradi tion under the Act is founded upon the
provisions of the European Convention on Extradition (the Convention) to which both
South Africa and the United Kingdom (the UK) are parties.
6. A warrant of arrest for his extradition was executed by members of the Sout h
African Police Services on the appellant at his home on 22 May 2019 and he
thereafter appeared before the first r espondent (the Magistrate) the following day.
The appellant was releas ed on bail immediately in terms of s9(2) of the Act and on
12 July 2019 the extradition proceedings proper commenced before the Magistrate.
The appellant was then represented by an experienced advocate from the Cape Bar
instructed by a leading firm of attorneys in the city and, acting on the advice of his
legal representatives, he made certain admissions before the Magistrate wh ich were
duly recorded , purportedly in terms of s220 of the Criminal Procedure Act, 51 of
1977 (the CPA).
7. The Magistrate indicated that he required time to consider the request for
extradition and the admissions made by the appellant in response thereto and to that
end he postponed the proceedings to 23 August 2019. On that day, the Magistrate
determined that , on the strength of his admissions, the appellant was liable to be
extradited to Scotland in terms of the Act and he ordered accordingly. Th e
Magistrate extended the appellant’s bail pending the dec ision of the Minister to order
his removal to the UK.
8. In September 2019 the Appellant exercis ed his right under s11 of the Act and
made detailed representations to the Minister requesting him 2 not to order his
extradition, saying that it would not be in the interests of justice to do so and that the
effect of such an order would be “too severe a punishment” on the appellant who is
in poor health . In his submissions to the Minister the appellant purported to ma ke a
clean breast of things and, as alluded to above, admitted his crimes in considerable
detail. The Minister was not persu aded by the appe llant’s entreaties and on 19
February 2020 he decided that he should be surrendered to the UK to stand trial on
the aforementioned seven counts. This decision came to the attention of the
appellant only in July 2020.
9. In the meanwhile, and at the suggestion of his erstwhile attorneys who said that
they were not specialists in criminal law , the appellant switched legal teams in May
2020 at the height of the Covid -19 pandemic and instructed a firm well -versed in
criminal law and procedure . A s a consequence thereof a new strategy was
embarked upon.
10. The appellant then sought to appeal the decision of the Magistrate under s13 of
the Act and also brought a legality review against the Magistrate’s decision.
Simultaneously, and in March 2021, the appe llant also launched a review under s22
of the Superior Courts Act, 10 of 2013 of the Minister’s decision to surrender him to
the United Kingdom under s11 of the Act. Later, in his replying affidavit in the review,
the appellant attacked the constitutionali ty of s10 of the Act on the basis that it did
not permit his release on bail while awaiting the Minister’s decision under s11 of the
Act. The latter point was not contested by the Minister who filed a counter-application
in that regard.
2 The present Minister of Justice is female.
11. Both matters were h eard by this Court in November 2023. For the sake of
convenience, we shall continue to refer to the extradite e as the appellant,
notwithstanding the fact that he is also an applicant before us for review. Where
appropriate we will refer to the Minister as such or to the Minister and the third
respondent (the DPP) collectively as “the respondents”. The Magistrate abides the
decision of the Court in respect of the review of his decision while the Minister and
the DPP oppose both the appeal and the review agai nst the decisions to extradite
the appellant.
12. The appellant was represented before us by Advs. W. King SC and B. Prinsloo
while the respondents were represented by Advs. F. Petersen and C. de Villiers. We
are indebted to both sets of counsel for the ir detailed heads of argument,
supplementary notes and bundles of authorities which have facilitated the
preparation of this judgment.
ISSUES FOR DETERMINATION BY THIS COURT
13. The appeal before us is founded, firstly, on the conten tion that the Magistrate
erred in recording the appellant’s admissions before him as falling within the ambit of
s220 of the CPA: it was submitted that the proceedings under the Act did not
constitute criminal proceedings. S econdly, there is the issue of dual criminality, as
that phrase is understood in extradition law and the contention that the Magistrate
erred in holding that the appellant was extraditable on this score. Finally, there is the
question as to whether any of the contemplated charges in Scotland have
prescribed3.
14. The review, on the other hand, is based on the assertion that the Minister erred
in making an order for the appellant’s extradition in circumstances where the
Magistrate had failed to commit the appel lant to prison under s10(1) while awaiting
the Minister’s decision to surrender him to. The argument advanced was that before
3 The parties have used the term “prescription” in the context in which it appears in the heading to
section 18 of the CPA. In the body of section there is also reference to the lapsing of the power to
prosecute and we shall thus use the terms interchangeably in this judgment.
the Minister could exercise his discr etion to extradite , the appellant had to be
physically in custody awaiting extradition. The fact that the Minister exercised his
discretion while the appellant was out on bail (and ergo not “committed”) was said to
be a reviewable error. This point is now common cause between the parties.
15. The consequence of th is reviewable error , say the parties, is that the Act is
unconstitutional in that it depr ives extraditees of the right to freedom guaranteed
under s12 of the Constitution of the Republic of Africa, 1996 (the Constitution) while
awaiting extradition. The ar gument in favour of a constitutionally sanctioned
amendment is buttressed by a long-established practice in our courts in terms
whereof, in appropriate cases, extraditees are granted bail initially in the proceedings
before a magistrate, which bail is thereafter systematically extended until the Minister
has finally made a decision on the extradition, one way or the other.
16. Lastly, the issue s of dual criminality and prescription were also incorporated
into the review.
ISSUES WHICH ARE COMMON CAUSE
17. In addressing these issues, it is useful to record what is common cause
between the parties for, as will be seen hereunder, at the end of the day ther e is not
that much in dispute with the matter turning rather on issues of law and
interpretation.
PRESCRIPTION
18. Firstly, the parties informed the Court at the outset that it wa s common cause
that counts 1 – 4 upon which the appellant is sought to be indicted in Scotland had
become prescribed. This is so, it was said, because s18 of the CPA provides for the
prescription of offences older than 20 years. T he parties contended that t his local
statutory provision falls to be considered in the context of Arts 2(1) and 10 of the
Convention which proscribes the extradition of a person who has “ according to the
law of ei ther the requesting state (i.e. the UK ) or the requested P arty (i.e. South
Africa), become immune by reason of lapse of time from prosecution or punishment.”
19. During the course of preparation of this judgment, we were concerned, on our
prima facie reading o f the law and the decided cases , that the parties may have
agreed on the prescription of counts 1 – 4 in error of the law. Mindful of our duty
under CUSA4, we addressed a note to the parti es on 30 April 2024 in which we sai d
the following:
“re: SECTION 18(1)(f) OF THE CRIMINAL PROCEDURE ACT, 1977
1. As we understand the position, there is no statute of limitations in relation to
the charges on which the applicant is required to stand trial in Scotland. In the
circumstances the Scottish prosecutin g authorities seek to indict the applicant
on the seven charges set forth in the petition of Andrew Richardson Esq
(Record Bundle 2 p 59 et seq).
• Charge 1 alleges offences committed between 2 May 1969 and 1 May
1972;
• Charge 2 alleges offences committed be tween 2 May 1972 and 31
August 1973;
• Charge 3 alleges offences committed between 27 February 1969 and
26 February 1972;
• Charge 4 alleges offences committed between 10 June 1971 and 31
August 1973;
• Charge 5 alleges offences committed between 1 September 197 4 and
15 July 1976;
• Charge 6 alleges offences committed between 1 September 1974 and
30 June 1976; and
• Charge 7 alleges offences committed between 1 September 1974 and
31 December 1976.
4 CUSA v Tao Ying Metal Industries and others 2009 2) SA 204 (CC) at [68]:
“Where a point of law is apparent on the papers, but the common approach of the parties proceeds on
a wrong perception of what the law is, a court is not only entitled, but is in fact also obliged mero
motu, to raise the point of law and require the parties to deal therewith. Otherwise, the result would be
a decision premised on an incorrect application of the law. That would infringe the principle of
legality.”
2. If indicted in Scotland, the applicant will be required to face all seven counts
and he cannot plead “prescription” to these seven charges. He may have other
objections regarding undue delay and prejudice but those are issues he will
have to raise before the trial court.
3. Regardless of the argument regarding the correct test for dual criminality, the
applicant may only be extradited to stand trial in Scotland on charges which the
State would be entitled to prefer against him in South Africa.
4. In the founding affidavit the applicant has contended that he is not liable to
be extradited to face the charges contemplated in counts 1 – 4 because he
says these have become “prescribed”. By that the applicant intends to convey
that in South African law he cannot face charges which predate 27 April 1994
because of the provisions of s18(1)(f) of the Criminal Procedure Act, 1977
(CPA) as it stood on that day. At that stage he would only have been liable to
face a charge of rape.
5. The applicant contends that the amendment to sec 18(1)(f) was effected in
2022, after his arre st on these charges, and that he is thus entitled to raise
“prescription” on charges 1 – 4. The respondents agree with this contention.
6. We consider that the use of the term “prescription” is potentially misleading.
Sec 18 provides that the right to inst itute prosecution lapses after 20 years
save for the enumerated categories. Those categories now include the full
spectrum of sexual offences under SORMA.
7. The question that now arises is whether, if an accused is alleged to have
committed a sexual offe nce as defined in SORMA other than rape in South
Africa in, say, 1971, the State would not have the right to institute a
prosecution today?
8. The applicant was arrested on 22 May 2019 and appeared before the
Magistrate for the first time on 23 May 2019. At that time, the provisions of sec
18(1)(f) of the CPA had been declared unconstitutional by Zondi AJ in Frankel
(2018 (2) SACR 283 (CC)) on 14 June 2018. The declaration of
unconstitutionality was made retrospective to 27 April 1994 and Zondi AJ then
ordered that the words “ all other sexual offences whether in terms of common
law or statute” be read in to sec 18(1)(f) while Parliament was given 24 months
to amend the section.
9. The order further provided that should Parliament fail to amend the section
within the said 24-month period, the interim reading -in remedy would become
final. Thus, on 14 June 2020 the words were considered to have been finally
read in. The section was eventually amended in December 2020 to read “ any
sexual offence in terms of the common law or statute”.
10. As we read the section in question, there is now no time -bar in South Africa
precluding the State from exercising its right to institute a prosecution against
the applicant under the common law (or SORMA) for crimes committed as early
as May 1969. That appears to have been the position in June 2018 when
Frankel was handed down and it further appears to have been the position
when the applicant was arrested in May 2019.
11. In Frankel the sexual offences in question were allegedly committed
between 1970 and 1989. The date of those alleged offences, said Zondi AJ at
[65], did not preclude Mr Frankel from being prosecuted for the common law
offence of indecent assault which was a crime at the time it was committed.
12. Based on the aforegoing, we consider that the State’s right to prosecute a
person in the position of the applicant in our courts has not lapsed and we do
not understand why it is common cause that the applicant does not sta nd to be
arraigned on counts 1 – 4 in Scotland
13. We thus invite the parties to address us further on the point.
CONSTITUTIONALITY - THE BAIL ISSUE
14. The parties did not refer in argument to sub -secs 13 (3) and (4) of the
Extradition Act (the Act) whic h govern the fixing of bail by a magistrate for
extraditees pending the exercising of their right of appeal to the High Court. The
section does not cover the situation where the person seeks to review a
decision of a magistrate before the High Court, rathe r than exercise the right of
appeal available under sec 13(1) of the Act. Further, sec 13 (4) of the Act has
detailed provisions with reference to the CPA for the granting and consideration
of bail pending a High Court appeal.
15. We invite the parties to consider the constitutionality of sec 13 in addition to
the arguments already advanced in respect of the sec 9 point.
16. Further, are the provisions of sec 13(4) of any assistance to the Court in
respect of the reading -in which the parties suggest in res pect of sec 10(5) of
the Act, pending the confirmation of the declaration of unconstitutionality?”
20. The parties undertook to revert on our query after they had discussed the
matter inter se. Subsequently, counsel for the appellant filed a supplementary not e
on 5 June 2024 and counsel for the respondents did likewise on 19 June 2024. We
asked the appellant’s counsel if they wished to reply to any of the issues raised by
the respondents in their post -hearing note and were informed that save for a
comment on one of the cases under consideration5, the appellant had nothing further
to say. Having taken time to consider the import of the parties’ replies to our post -
hearing note, we have decided to approach the matter as follows.
21. In their response to the Court’s note in respect of this issue the respondents
made it clear that they are in agreement with the appell ant that the ret rospective
effect of the judgment in Frankel in fact operated prospectively from the 27 April
1994. Furthermore, the respondents contend that as at the date of the extradition
request, counts 1 to 4 had prescribed because the 20-year period referred to in
section 18(f) of the CPA had already run its course by 27 April 1994.
5 The decision of the SCA in Patel, to which we refer more fully hereunder.
22. One further aspect arising from Frankel to which the appellant did not expressly
refer was that section 18 of the CPA was eventually substituted in terms of the
Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Act, 15 of
2020 (“the 2020 Act”) , with effect from 23 De cember 2020 . The 2020 Act was
enacted to ensure that the prosecution of any sexual offence, whether in terms of the
common law or statute, would not be subject to the 20-year lapsing provision to
which we have already referred . As we read it, in adopting the 2020 Act Parliament
went further than the limitations imposed by Frankel and expressly provided for the
revival of the right to prosecute all sexual offences which had lapsed before 27 April
1994.
23. The question arising from this legislative enactment is what the relevant date is
in terms of the extradition process in order t o determine whether the appellant is
extraditable on counts 1 to 4 or not. It seems to us that the lapsing of the right 6 to
institute a prosecution in respect of counts 1 to 4 falls to be decided on the question
whether the provisions of the 2020 Act are applicable to the prosecution of the
offences for which extradition is sought in this matter.
24. In terms of the interim reading in remedy granted in Frankel, section 18 (f) of
the CPA was to be read as if the words “and all other sexual offences whether in
terms of the common law or statute” appeared in that section. In other words, the 20-
year limitation period did not apply to rape, compelled rape and all other sexual
offences whether in terms of the common law or statute. The declaration of invalidity
was suspended for a period of 24 months to afford Parliament an opportunity to pass
the necessary remedial legislation . It further ordered that should P arliament fail to
enact such remedial legislation during the period of su spension, the reading in
remedy would become final. That is in fact what happened: Parliament did not enact
remedial legislation within the period of suspension, which lapsed o n 14 June 2020,
and the reading in provision then became final.
25. In making the order in Frankel the Constitutional Court directed that the
declaration of invalidity was to operate retrospectively to 27 April 1994. The parties
6 We use the phrase in preference to the term “prescription” because that is the phrase Parliament
uses in section 3(2) of the 2020 Act.
interpret that order, firstly, to mean that the right to prosecute sexual offences other
than rape or compelled rape was restricted to the aforesaid 20-year period, that this
right had lapsed prior to 27 April 1994, and a prosecution could thus not be instituted
in respect of those offences; secondly, that the right to pr osecute such offences
which had been committed after 27 April 1994 had not lapsed . Thus, the parties
contended that in terms of Frankel the right to prosecute counts 1 to 4 had lapsed by
27 April 1994 because they were allegedly committed before 27 April 1974.
26. The legal position which applied pursuant to Frankel remained fixed until the
2020 Act came into operation on 23 December 2020. The change brought about by
that enactment was an amendment to section 18(2) of the CPA by providing that the
right to institute a prosecution in respect of any offence referred to in subsection s (1)
(eA) and (f) thereof (and which had lapsed before the commencement of the 2020
Act), was t hereby revived (“the re vival provision”). The revival provision has the
effect that the right to institute a prosecution for any sexual offence no longer lapses.
The question to consider then is whether the revival provision is applicable to counts
1 to 4 in this matter.
27. In deciding this question, and as was pointed out in Patel7, the relevant date in
considering whether an offence is extraditable or not is the date on which the request
for extradition was lodged by the requesting state: in this matter that date was during
September 2018, which is 2 months after the order in Frankel. Thus, when the
request for extradition was lodged, Frankel applied and any limitation on the right of
the State to prosecute for sexual offences such as those which the appellant faces,
was effective from 27 April 1994. Accordingly, the state of our law was that when the
application for extradition was lodged the appellant could not be indicted for any
offence committed more than 20 years before 27 April 1994, hence the common
position adopted by the parties that the right to prosecute the appellant on counts 1 –
4 had “prescribed”, as they put it.
28. The only other question is whether the legal position in this case was affected
by the passage of the revival prov ision. Having considered the wording of the
7 Patel v National Director of Public Prosecutions 2017(1) SACR 456 (SCA) at 466c.
relevant section8, and for the reasons articulated above , we hold the view that in the
circumstances of the matter the 2020 Act does not operate retrospectively . We are
therefore in agreement with the parties that the amendment to section 18(2) of the
CPA does not change the position . In our law, as it applied in September 2018, the
right to prosecute the appellant under counts 1 to 4 has lapsed.
29. Further, we are of the view that if the revival position were to find application in
this case, it wou ld be grossly unfair to the appellant, given that at the time when the
extradition request was made (and for that matter, also at the time when the order
was made by the M agistrate) the right to prosecute him under cou nts 1 to 4 had
lapsed. It would be inequitable and contrary to the interests of justice to permit the
lapsed right to prosecute to be revived midway through the extradition proceedings
simply because Parliament had passed the 2020 Act.
CONCLUDING REMARKS ON PRESCRIPTION
30. The issue of the prescription of charges 1 to 4 which the appellant faces in
Scotland was not addressed at all before either the Magistrate or the Minister. To the
extent that it is now common cause that those offences allegedly committ ed in
Scotland have indeed prescribed under our law , and given that our concerns
expressed in our post -hearing note have now been satisfactorily addressed, we are
satisfied that the decisions of both the Magistrate and the Minister that the appellant
was extraditable on these counts are reviewable to that extent only. Counsel for the
respondents requested this Court to confirm the extradition of the appellant only on
counts 5 - 7 in the event that we were satisfied that the extradition was otherwise
warranted and so we turn to discuss those further issues.
PROCEDURAL ISSUES
8 “(2) The right to institute a prosecution that, in respect of any offence referred to in subsection
(1)(eA) and (f), has lapsed before the commencement
of the Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Act, 2020, is hereby
revived.”
31. The parties are further in agreement that the Magistrate erred in finding that the
President had consented to the appella nt’s extradition in terms of s ection 3(2) of the
Act. As we see it, in the greater scheme of things , that error is of no great moment in
that the case falls to be decided on other more material grounds.
32. The parties also agreed that the late lodging of the appeal and the review by
the appellant and the c ounter-review by the Minister on the constitutional point
should be condoned. We are in agreement with this approach due regard being had
to the inevitable delays that the Covid -19 pandemic occasioned on legal life and,
further, the importance of the constitutional argument.
33. Ultimately, the issues for determin ation turn on the s ection 220 point, the
question of dual criminality and the constitutionality of section 10 of the Act in relation
to the fact that there wa s no provision in the Act for the extension of the appell ant’s
bail after his committal by the M agistrate. Lastly, there is the question of an
appropriate order to be made in light of the c oncessions made by the Minister with
regard to the constitutional point.
THE ADMISSIONS MADE BY THE APPELLANT BEFORE THE MAGISTRATE
34. When proceedings commenced before the Magistrate on 12 July 2019, the
appellant’s erstwhile counsel asked for the matter to stand down in order that the
question of admissions could be considered in conjunction with the repr esentative of
the DPP then present at court. Ultimately, counsel (who to our knowledge is well -
versed in criminal law and procedure and has served as an Acting Judge in this
Division) prepared a document entitled “Admissions in terms of Section 220 of Act 51
of 19779 in the Extradition Enquiry” . The document was signed by the app ellant and
confirmed by counsel before the Magistrate.
35. The list of admissions made by the appellant is as follows:
9 That section in the CPA reads -
“220. An accused or his or her legal adviser or the prosecutor may in criminal proceedings admit any
fact placed in issue at such proceedings and any such admissions shall be sufficient proof of such
fact.”
“1. The United Kingdom of Great Britain and Northern Ireland (United Kingdom)
has requested my extradition from the Republic of South Africa (South Africa).
2. I was arrested on 21 May 2019 in the jurisdiction of this Court and on the
same day I was brought before this court for an inquiry in terms of s 9(1) of the
Extradition Act no 67 of 1962 (Extradition Act).
3. Both South Africa and the United Kingdom are parties to a multilateral
convention which makes provision for extradition between the countries, to wit
the European Convention on Extradition.
4. I have no objection to the admission of the original Extradition Request into
the record and I admit that the contents thereof are true and correct. Attached
as “A”.
5. I have been advised that the counts are set out in the certificate of
authentication dated for July 2018 on page… (sic) of the Extradition request as:
1. Lewd, indecent and libidinous practices and behaviour
2. Lewd, indecent and libidinous practices and behaviour
3. Lewd, indecent and libidinous practices and behaviour
4. Lewd, indecent and libidinous practices and behaviour
5. Indecent assault
6. Lewd, indecent and libidinous practices and behaviour
7. Lewd, indecent and libidinous practices and behaviour.
6. The criminal conduct of which I have been charged with (sic) in the United
Kingdom also constitutes th e following South African offenc es which are
substantially similar to the offences in the United Kingdom;
1. Contravention of section 5 (1) of the Criminal Amendment Act (Sexual
Offences and Related Matters) 32 of 2007- sexual assault
2. Contravention of section 5 (1) of the Criminal Amendment Act (Sexual
Offences and Related Matters) 32 of 2007- sexual assault
3. Contravention of section 5 (1) of the Criminal Amendment Act (Sexual
Offences and Related Matters) 32 of 2007- sexual assault
4. Contravention of section 5 (1) of the Criminal Amendment Act (Sexual
Offences and Related Matters) 32 of 2007- sexual assault
5. Contravention of section 3 of the Criminal Amendment Act (Sexual
Offences and Related Matters) 32 of 2007 – rape
6. Co ntravention of section 5 (1) of the Criminal Amendment Act (Sexual
Offences and Related Matters) 32 of 2007- sexual assault
7. Contravention of section 5 (1) of the Criminal Amendment Act (Sexual
Offences and Related Matters) 32 of 2007- sexual assault
7. Copy of the relevant sections of the Criminal Amendment Act (Sexual
Offences and Related Matters) 32 of 2007 attached as “B”.
8. The offenc es are punishable in both countries with a sentence of
imprisonment for a period of one year or more as required by article 2(1) of the
European Convention on Extradition.
9. The offences are not offences under military law.
10. I consent to my extradition to the United Kingdom in this inquiry for
purposes of the finding in section 10 (1) of the Extradition Act 67 of 1962.
11. I waive my right to appeal in terms of section 10(1) of the Extradition Act 67
of 1962, in order to expedite the extradition process.”
36. As to the nature of the proceedings before the Magistrate, c ounsel for the
appellant referred us to the decision in this Division in Minister of Justice v Additional
Magistrate Cape Town10 where the Full Court held as follows:
“Section 9(2) of the Extradition Act provides that an extradition inquiry shall
proceed in the same manner in which a preparatory examination is to be held
and that the magistrate holding such an inquiry shall have similar powers. That
the Legislature superimposed the procedures applicable to preparatory
examinations upon extradition enquiries and clothed magistrates conducting
them with the powers, exercised in relation thereto, does not mean that such
inquiries are the equivalent of preparatory exami nations. Accordingly, it is
misguided to rely on the definition of ‘criminal proceedings’ in section 1 of [the
CPA] which by definition includes ‘a Preparatory examination under Chapter 20’
for the proposition that an extradition inquiry is a criminal proceeding to which
the provisions of the Criminal Procedure Act which regulate the conduct of
criminal trials apply. Unlike in the case of criminal trials, extradition inquiries are
not directed at a finding of guilty or not guilty.”
37. We consider that i t is correct, purely from a technical point of view , that the
submission by counsel for the appellant is sou nd in relation to the binding effect
under the CPA of admissions made under s ection 220 for the purposes of criminal
proceedings. But during argument counsel readil y accepted that at such a
preparatory e xamination an accused person is entitled to make admi ssions in an
endeavour to, for example, limit the duration of the proceedings. So, in say an
enquiry relating to the killing of a person, an accused person would be entitled to
make admissions in relation to the so -called chain of evidence linking the
10 2001 (2) SACR 49 (C) at 62j-63c.
transportation of the deceased’s body from the scene of the crime to the mortuary
where an autopsy was undertaken. Those admissions could be contained in a
written document and entered into the record, thereby becoming admissible
evidence before the preparatory examination.
38. When pressed by the Court on the point that there was no particular magic in
the use of the description of the appellant ’s admissions as having purportedly been
made under s ection 220, counsel accepted that the admissions made by the
appellant might stand as admissions per se in a preparatory e xamination type
enquiry.
39. In Geuking11 in which a number of constitutional challenges were raised by the
extraditee as to, inter alia, the fairness of the procedure, Goldstone J dealt at length
with nature of an extradition enquiry, citing with approval the following extract from
Bassiouni 12
“[26]…According to Bassiouni, a leading authority on extradition law:
“…extradition is deemed a sovereign act, its legal proceedings are deemed sui
generis, and its purpose is not to adjudicate guilt or innocence but to determine
whether a person should properly stand trial where accused or be returned to
serve a sentence properly imposed by another state.”
40. Goldstone J went on to observe that in South Africa the legislature has
determined that an extradition enquiry is conducted in a procedure akin to a
preparatory examination and stressed the following:
“[38] As mentioned earlier, the enquiry must be held in open court in the
manner in which a preparatory examination is held. In particular, the person
concerned is entitled to testify and adduce evidence. The identity of the person
before the magistrate – as being the person named in the request – has to be
11 Geuking v President of the Republic of South Africa 2003 (3) SA 34 (CC)
12 International Extradition : United States Law and Practice 4 ed (Oceana Publications, New York
2002) at 66
established and can be challenged or contradicted by documentary or oral
evidence.”
41. In this matter the appellant did not give evidence, but his counsel handed up to
the Magistrate a list of admissions which might just as w ell have been adduced
through the presentation of viva voce evidence by the appellant . In the
circumstances we consider that it was not irregular for the Magistrate to have regard
to the admissions made by the appellant in the course of the enquiry and , save
perhaps for the admiss ion that he acknowledged that he was liable to be extradited,
which is arguably a conclusion of law ultimately to be arrived at by the Magistrate,
the admissions should stand. In the result we consider that ther e is no merit in the
section 220 point and that the appellant is bound by the admissions made therein.
DUAL CRIMINALITY
42. The dual or double criminality principle is central to a finding in determining
whether an offence on which a person is sought by a foreign state is an extraditable
offence. In Patel13 Schippers AJA discussed the concept in some detail with
reference to the leading international authorities:
“[7] The purpose of extradition is to secure the return for trial or punishment,
persons accused or convicted of crimes. Extradition is essentially a process of
intergovernmental legal assistance. Generally, the legal basis for extradition is
treaty, reciprocity or comity. Comity is irrelevant for presen t purposes.
Reciprocity in extradition occurs when the request for surrender is
accompanied by assurances of reciprocal extradition in comparable
circumstances.
[8] The principle of double (or dual) criminality is internationally recognised as
central to extradition law. The principle requires that an alleged crime for which
extradition is sought is a crime in both the requested and requesting States. In
other words, the crime for which extradition is sought must be one for which the
13 Patel v National Director of Public Prosecutions supra.
requested State would in turn be able to demand extradition. Oppenheim puts it
succinctly:
‘No person may be extradited whose deed is not a crime according to the
criminal law of the State which is asked to extradite as well as the State
which demands extradition’.14
[9] Double criminality, a substantive requirement for extradition, is predicated
on the premise of reciprocity in the sense of equivalent mutual treatment
deriving from mutuality of legal obligations. Shearer states that the double
criminality rule is based on reciprocity:
‘The validity of the double criminality rule has never seriously been
contested, resting as it does in part on the basic principle of reciprocity,
which underlies the whole structure of extradition, and in part on the maxim
of nulla poena si ne lege . For the double criminality rule serves the most
important function of ensuring that a person’s liberty is not restricted as a
consequence of offences not recognised as criminal by the requested State.
The social conscience of a State is also not e mbarrassed by an obligation to
extradite a person who would not, according to its own standards, be guilty
of acts deserving punishment. So far as the reciprocity principle is
concerned, the rule ensures that a State is not required to extradite
categories of offenders for which it, in return, would never have occasion to
make demand. The point is by no means an academic one even in these
days of growing uniformity of standards; in Western Europe alone sharp
variations are found among the criminal laws rela ting to such matters as
abortion, adultery, euthanasia, homosexual behaviour, and suicide.’15”
43. The appellant contends that the elements of dual criminality have not been met
in this case. His counsel submitted that the Court was required to have regard to the
two general ly accepted approaches to dual criminality in defining an extraditable
offence. These are , firstly, the enumerative method which applies where specific
offences are listed in a schedule or similar document as extraditable offences under
14 L Oppenheim International Law 8 ed (1955) at 70.
15 I A Shearer Extradition in International Law (1971) at 137-138.
a particular treaty and, secondly, the eliminative method, where a threshold is
applied, and offences are not listed specifically. The latter approach, it was correctly
submitted, is adopted by the Convention and the Act: there is no numerus clausus of
extraditable offences appended to either document.
44. The eliminative method has two diverse approaches recognised in international
law. On the one hand , there is the approach which focuses on the elem ents of the
respective offences (“the elements -based approach”) and, on the other hand , there
is the approach which looks to the factual b asis/conduct implicit in the respective
offences (“the conduct-based approach”).
45. The appellant takes issue with the respondents’ submission that at a section 10
enquiry, a magistrate has to be satisfied that the conduct (in other words, the facts)
alleged by the foreign state constitutes criminal conduct in South Africa. The
appellant contends that the ap proach followed by the Conv ention - the elements -
based approach - is applicable in our law. Counsel for the appellant further submitted
that for the purposes of considering the dual criminality ground of review and appeal
in this matter, there are accordingly two questions that require resolution.
46. Firstly, i s the extraditabil ity of the offence determined according to
consideration of the conduct (or facts) constituting the offence, or are the elements of
the offence in question the determining factor? Secondly, do counts 5 to 7 , upon
which the appellant is required to stand trial in Scotland, satisfy the requirements of
dual criminality?
47. In regard to the first question, the C ourt was referred by counsel for the
appellant to two of our foremost writers on criminal l aw, Profs.J Burchell,16 and CR
Snyman17. It was pointed out that b oth authors , in dealing with the general
requirements of criminal liability , consider that an offender’s conduct must comply
with the definitional elements of a crime in order to attract criminal liability.
16 J Burchell Principles of Criminal Law, 4th ed (2015) at 47.
17 CR Snyman Criminal Law 5th ed (2008) at 30.
48. Developing this argument, i t was submitted that if regard be had to the
definitional elements, one might observe how one type of crime differs from another.
In this regard it was submitted that when a comparison is made between the
elements of the South African offence s and the offences for which extradition to is
sought to the UK, such elements were required to be substantially similar before the
applicant was liable to be extradited.
49. Counsel for the appellant referred us to a decision of the Irish Supreme Court in
State (Furlong) v Kelly 18 as well as various other writers on international law, the
extradition treaty between South Afri ca and the United States of America and the
Convention itself, all of which were said to favour an elements-based approach.
50. Counsel further submitted that because this matter involves an extradition
under a treaty, section 3(1) and not section 3(2 ) of the Act is applicable. There can
be no argument with that submission. Then it was said that , in determining what
approach to dual criminality should be applied in this matter, an interpretation of the
Convention rather than the Act itself was necessary.
51. In that regard it was pointed out that the Convention has its own definition of an
extraditable offence. Counsel referred us to Art 14(3) of the Convention which reads
as follows:
“A person who has been extradited shall not be proceeded against, sentenced
or detained with a view to the carrying out of a sentence or detention order for
any offence committed prior to his surrender other than that for which he was
extradited, nor shall he be for any other re ason restricted in his personal
freedom, except in the following cases:
….
3. When the description of the offence charged is altered in the course of
proceedings, the extradited person shall only be proceeded against or
sentenced in so far as the offence u nder its new description is shown by its
18 1971 1 IR 132.
constituent elements to be an offence which would allow extradition .”
(Emphasis added by counsel)
The appellant relies on the underlined section for his contention that in terms of
the Convention an offence is only extraditable if the elements of the offence in
the requesting state are similar to that of the elements of the offence in the
requested state.
52. The respondents submit that the contention that the determination for dual
criminality is based on the elements -based approach is wrong. They argue that the
modern approach is that the conduct in question must be punishable in both the
requested and request ing states. They rely, inter a lia, on certain writers in
international extradition law.19
53. The respondents refer i n particular to the following extract from the journal
article by Harris and Griffiths:
“Application of the requirement may depend on the extent to which the alleged
criminal acts of the accused are described by the requesting state. That is, the
requested country’s authorities, in determining whether the crime with which a
person has been charged corresponds with the crime under local law, may
want to know not simply whet her the abstract legal elements of the offense
corresponds to an offense under domestic law, but also whether the particular
factual conduct alleged, including the mental state , would be punishable if
committed in the requested state. The corresponding domestic offence may not
be immediately recognisable from the relevant statutory provision of the
requesting state, and it may be necessary to look at the alleged conduct to
determine whether there is an applicable domestic offence. An inadequate
description of the acts of the accused may not enable a requested country to
19 Fey–Constance B laas “Double Criminality in International Extradition Law”, University of
Stellenbosch, Masters Thesis December 2003 (http://scholar.sun.ac.za).
Gavan Griffith Q.C and Claire Harris ; “Recent Developments in International Law”, Melbourne Journal
of International Law [Vol 6] 2005 (http://law.unimelb.edu.ac) .
determine whether the conduct is in fact punishable under the laws of that
country.” (Emphasis added)
54. We agree with the respondents that our law currently does not recognise that
the determination of dual crimi nality is based on the elements-based approach, but
rather that the conduct (or factual) approach should be applied in determining dual
criminality. We say so for the reasons that follow.
55. Firstly, we consider that t he appellant’s reliance on Art 14(3) of the Conventi on
to show that a person is only extraditable if the elements of the offence of the
requesting state are similar to that of the requested s tate, is misplaced: t his is not
what the article seeks to regulate. In our view, the article in question goes no further
that to provide that where , during the course of extradition proceedings, the
description of the offence on which the extraditee is liable to be extradited, is altered,
it is a requirement that the offence under its new description is shown by its
constituent elements to be an offence which would sanction extradition. By way of
example, this would be akin to an amendment of a charge-sheet and is different from
stating that the elements of the offence on which extradition is sought from the
requesting state, should be similar t o the elements of the offence in the requesting
state.
56. A further example which springs to mind is the promulgation of SORMA – the
very legislation with we are concerned in this ma tter. Prior to SORMA, an adult male
who sexually molested a young boy might have been charged with the common law
offence of indecent assault. The legislature then considered it n ecessary to codify
that offence (as well as various other offences including rape ) and give it an
extended meaning beyond the more restricted common law offence. So, if there was
an extradition request pending under the Convention at the time that SORMA was
promulgated, and the off ence for which extradition had been sought spanned a
common law offence and a contravention of SORMA , Art 14(3) would conceivably
come into play and the extraditing court would be required to consider whether the
elements of the statutory offence were similar to the common law crime.
57. It follows , in our view , that up on a proper interpretation , Art 14(3) means no
more than that after an alteration or amendment of the offence has been effected,
the constituent elements of the amended or altered offence should be similar to that
offence under which the extraditee was originally sought. And, further, such an
alteration must not have the effect that it would not be an extraditable offence. This
seems to be a common sense and logical provision in order to limit an abuse of
process or prejudice to an extraditee, where the description of an offence is changed
midway through the extradition proceedings by the requesting state , and there is
concern that the substance of the offence has changed.
58. It is clear from the authorities referred to by both parties that the consistent
approach that our courts have followed in the determination of whether the offence is
an extraditable offence is whether a consideration of the evidence pro duced by the
foreign state would constitute an offence under the laws of the Republic.
59. Thus, in Geuking, Goldstone J observed:
“[40] In the determination of whether the offence is an extraditable offence the
magistrate would have to consider whether the ev idence produced by the
foreign state would constitute an offence under the law of the Republic.
Sufficient detail of the offence alleged against the person concerned would thus
have to be placed before the magistrate in order for that determination to be
made. Under section 9(3) of the Act, the evidence may take the form of a
deposition, statement on oath or affirmation, whether taken in the presence of
the person concerned or not and must be duly authenticated in the manner
provided in section 9(3)(a)(iii) of the Act. The magistrate would have to be
satisfied that these requirements are satisfied. The magistrate would then have
to consider whether the evidence which has thus been produced would
constitute an offence under South African law. The name of the offence would
not be determinative. The question for consideration is whether the conduct
which the evidence discloses constitutes an offence in our law which would be
punishable with a sentence of imprisonment for a period of six months or more.
It must also be established that the offence is not one under military law and is
not also an offence under the ordinary criminal law of the Republic.” (Emphasis
added)
We consider that the Constitutional Court was thus advocating a conduct -based
approach to dual criminality.
60. We consider that t his approach was reaffirmed further in a later passage in
Geuking where Goldstone J stated the following:
“[45] In dealing with this argument it is important to have regard to the nature of
extradition proceedings and the limited function of the hearing before the
magistrate. Extradition proceedings do not determine the innocence or guilt of
the person concerned . They are aimed at determining whether or not there is
reason to remove a person to a foreign state in order to be put on trial there.
The hearing before the magistrate is but a step in those proceedings and is
focused on determining whether the person co ncerned is or is not extraditable.
Thereafter it is for the Minister to decide whether there is indeed to be
extradition. What is fair in the hearing before the magistrate must be
determined by these considerations. From the earlier analysis of what the
magistrate is required to consider, it is clear that he has to be satisfied that the
conduct alleged by the foreign state constitutes criminal conduct in this country.
In order to make that determination the magistrate has to be furnished with
sufficient det ail of the alleged conduct. If the magistrate considers that the
evidence does not disclose criminal conduct under South African law that would
be an end of the matter and the person would have to be discharged. If the
alleged conduct in the foreign state does constitute criminal conduct in this
country, the magistrate is then required to rely on the certificate with regard to
the narrow issue as to whether the conduct also warrants prosecution in the
foreign country. It is not inappropriate or unfair for t he legislature to relieve the
magistrate of the invidious task of deciding this narrow issue unrelated to South
African law. As already mentioned, it is a question in respect of which South
African lawyers and judicial officers will usually have no knowled ge or
expertise.” (Emphasis added)
61. This approach was confirmed by the Full Court in this Division in Carolissen20.
In our view therefore the conduct - or facts -based approach is be followed in
determining dual criminality in our law.
DO COUNTS 5-7 IN SCOTLAND MEET THE DUAL CRIMINALITY TEST?
62. Earlier in this judgment we found that the admissions purportedly made under
section 220 before the Magistrate were admissible and constituted evidence before
him. It follows then that the appellant admitted before the Magistrate that the criminal
conduct of which he has been accused in the UK is similar to the offences known to
South Africa law under sections 3 and 5 of SORMA. That should then be the end of
the matter in respect of whether the dual criminality requi rement has been satisfied
in this case or not. However, in the event that we are wrong in our approach, and if it
be considered that the elements -based approach is preferable, we propose to deal
with the case on that approach and show that in any event we consider that the
appellant is extraditable.
63. In the extradition request the background facts in support of the offence in
respect of which the appellant was sought on the formulation of t he charges under
Scottish law are set ou t. In this regard , a certain Ms. Ann Mc Bride, an official
described in a deposition filed before the Magistrate as the “Principal Procurator
Fiscal Dispute”21 states that Scotland does not have a penal code and all offences
are derived from the common law.
64. In respect of the crime known in Scotland as “lewd, indecent and libidinous
practices and behaviour” (which form the basis of counts 6 and 7 in Edinburgh and to
which we will conveniently herei nafter refer as “lewd behaviour” ), Ms. Mc Bride says
that –
20 Carolissen v Director of Public Prosecutions 2016 (2) SACR 171 (WCC).
21 It appears that Ms McBride is a functionary in the “Procurator Fiscal’s Office” in Edinburgh. This is
the name given to Scotland’s prosecution service (see www.copfs.gov.uk). She deposed to a
deposition in Edinburgh on 28 March 2018 for purposes of securing the appellant’s extradition.
a) the crime has long been recognised and punished by the criminal
courts under the common law of Scotland;
b) it is an offence at common law to engage in indecent practices and
behaviour with children below the age of puberty with or without their consent;
c) the aim is to protect these young children from sexual abuse;
d) central to this crime is the occurrence of indecent conduct;
e) whether the conduct is indecent is to be judged by the social standards
that would be applied by the average person in contemporary society;
f) such conduct can be practised on the child directly or in the child’s
presence. This form of sexual abuse can take many forms such as indecent
physical contact with the child; showing indecent photographs of, or to, the
child; indecent conduct in the pres ence of the child and indecent conversation
with a child directly by telephone or electronically;
g) whether the conduct is of an indecent character is something that is
judged objectively; and
h) the prosecution does not need to prove what the accused’s i ntention or
motive was.
65. In these proceedings the appellant’s principal attack is that, applying the
elements-based approach, the requirements of dual criminality have not been met on
counts 6 and 7 in respect of the crime of lewd behaviour because, on the face of the
record, it appears that i ntention is not an element of such offence. The respondents
on the other hand submit that it is not correct that intention is not an element of these
offences.
66. In respect of the Scottish crime of indecent assault (which is the basis for the
charges brought in the UK under count 5) Ms McBride states that “ evil intention” is
essential to prove such an assault as it “ cannot be committed accidently , recklessly
or negligently”. Indecent assault is essentially regarded as an assault aggravated by
indecency in the manner of its commission.
67. During argument counsel for the appellant seized upon a passage in Ms .
McBride’s deposition to suggest that it was apparent that in Scotland lewd behaviour
did not require proof of mens rea whereas in our law this was a requirement under
SORMA. The passage in question in the deposition reads as follows:
“The Crown doesn’t need to prove what were the accused’s intention or
motive.”
68. We note immediately that this argument is at odds , firstly, with the vers ion of
the appellant before the Magistrate as set out in his list of admissions, and secondly,
with the representations he made to the Minister. In both instances the appellant
unequivocally confessed that his conduct was intentional.
69. Be that as it may, i n the answering affidavit the respondents dispute that
intention was not an el ement of that crime, pointing out that Ms McBride specifically
stated in her deposition that the Crown does not ne ed to prove w hat the accused ’s
motives or intentions were. It was highlighted that this meant that the Crown need
not prove the offender’s motive in committing the crime of lewd behaviour and that
this was not the same as not having to prove that the appellant did not have the
intention (or mens rea as we know it) to commit the crime.
70. In his replying affidavit the appellant persisted with this contention, stating that
under the law of the requesting state a prosecutor does not have to prove the
subjective element of intention in respect of the offence on which his extradition is
being sought. In response to this argument raised in reply, the respondents filed a
supplementary answering affidavit and in so doing drew a substantive dispute as to
what the respective elements of the Scottish offences are.
71. The respondents pointed out that even if their argument regarding intention as
being an element on counts 6 and 7 was wrong, the position in respect of count 5
was indisputable. There the allegation is made that on various occasions the
appellant penetrated the victim’s anus digitally and the respondents argue that under
the extended definition of rape under SORMA such conduct amounts to rape in our
law. It was said that on the basis of th is offence alone the appellant wa s liable to be
extradited to the UK.
72. In a further replying affidavit the appellant persiste d wi th the contention that ,
under the law of the requesting state , the prosecutor does not have to prove the
element of subjective fault in the form of intention in order to establish guilt, but that
under the laws of South Africa, intention ( mens rea) is an essential element of the
crime. He furthermore disputed that he had the requisite intention in respect of the
offences he allegedly committed.
73. As a result of this stance adopted by the appellant, the respondent s filed a
further deposition by a certain Ms. Clare Kennedy, another functionary in the office of
the Procurator Fiscal Depute, wherein an attempt is made to clarify the issue of
intention in relation to the offence of lewd behaviour. In this deposition dated 16
March 2023, Ms. Kennedy seeks to clarify what was said in Ms. McBride’s deposition
regarding intention as an element of the crime of lewd behaviour.
74. Ms. Kennedy states that it is necessary in Scottish law for the Crown to prove
that an accused intended to obtain sexual gratific ation from the particular act or to
corrupt the innocence of the child involved. She pointed out that what had been
stated by Ms. McBride in her deposition of 2018 was no more than a reference to the
intended outcome, or motive, behind the criminal act and not the intention to commit
the act itself. She further stated that to constitute a crime in Scottish law, the act of
lewd behaviour has to be committed intentionally (or deliberately ) and cannot be
committed negligently. Ms Kennedy further stated that th e Crown did not need to
prove why the accused acted in a certain way , but had to prove that the actions of
the accused were intentional. The position in Scotland was thus clarified – intention
(or mens rea) is without doubt an element of the offence with which the appellant is
charged under counts 6 and 7.
75. In their heads of argument, counsel for the appellant contend that in the course
of filing the further answering affidavit the respondents had effectively conceded the
applicability of the elements-based approach in engaging in the substantive dispute
as to what the respective elements of the Scottish offences are.
76. We do not agree with this submission. Firstly, the argument is inconsistent with
the settled law in this country that the conduct-based approach should be followed in
determining dual criminality. An exercise therefore to show that the absence of one
of the elements of a crime (such as intenti on) is misplaced in light of the conduct-
based approach which is followed in South Africa with regard to est ablishing dual
criminality. It is therefore irrel evant, in our view, to engage in a debate whether the
elements of the offences on which the appellant is being sought i n Scotland are
similar to the elements of the offences in South Africa. The elements -based
approach is simply not that which has been man dated by ou r Courts . To this we
would add that the appellant’s reliance on the elements -based approach, citing Art
14(3) of the Convention, is wrong for the reasons already set out above.
77. Secondly, and in any event, it seems that this was a non-issue from the outset.
Ms. McBride pertinently states in para 6 of her deposition that “evil intention ” is
essential to prove indecent assault which cannot be committed accidentally,
recklessly, or negligently, a nd that indecent assault is essentially an assault
aggravated by indecency in the manner of its commission.
78. As we understand the position, Ms. Mc Bride’s use of the phrase “the Crown
does not need to prove what were accused’s intention or motive” , was employed in a
different context. It was not intended to state that intention is not an element of the
offences on which the appellant is sought by the requesting state. Rather the phrase
refers to the reasons why the offence was committed, and it is said that these are
regarded as irrelevant to prove criminal liability . This too is the case in South Africa
where motive is irrelevant to the determination of criminal liability 22. There is
therefore no uncertainty or ambiguity in respect of this issue.
22 Burchell op.cit. 4th ed. At 353.
79. Thirdly, and as stated earli er, we are of the view that the admissions made by
the appellant before the Magistrate formed part of the evidential material before him
and underpinned the lower court’s conclusion that the appellant is liable to be
surrendered to the Scottish authorities . At the risk of repeating our view, t his was
evidence placed before the M agistrate by th e appellant himself to facilitate the
determination of the question of extraditability without more . As we have said, the
fact that such evidence was clothed in the form of so-called section 220 admissions
is neither here nor there because it was not evidence directed at finding whether the
appellant was guilty or not . Rather, the enquiry was to establish whether the
appellant’s alleged conduct in Scotland was similar to conduct which is proscribed in
our law.
80. As we have already noted, the appellant readily admitted before the Magistrate
that th e criminal conduct with which he is to be charged in the UK constitutes the
following offences in our criminal law:
(i) In respect of co unts 6 and 7 (lewd behaviour) it is admitted that these
constitute a contravention of section 5 (1) of SORMA (also referred to as sexual
assault); and
(ii) In respect of count 5 (indecent assault) it is admitted that this constitutes a
contravention of section 3 of SORMA (also referred to as rape).
81. Lastly, in his representations to the Minister, the appellant again made all the
necessary admissions to render himself liable to be extradited to Scotland under
section 10 of the Act . In this regard we point out that he made, inter alia , the
following admissions of fact to the Minister:
(i) In 1968 he was appointed as a primary school teacher at Edinburgh
Academy in Scotland;
(ii) While he was teaching at Edinburgh Academy he again experienced
urges to touch learners inappropriately and on occasion he did so by placing
his hand inside a boy’s trousers to touch his private parts in the class room and
on another occasion in a school change room;
(iii) In 1973 he was appointed as a primary school te acher at Fettes Junior
College in Edinburgh.
(iv) There his said inappropriate behaviour continued until 1979 when a student
complained that the appellant had touched his private parts.
(v) The appellant admitted this aberrant behaviour and agreed to lea ve the
college at the end of the term;
(vi) He then returned to South Africa, well aware that he could not continue
with this inappropriate behaviour and that it had to stop.
82. For all of these reasons we are sa tisfied the requirements of dual criminality in
respect of c ounts 5 to 7 have been satisfied and that the appellant is liable to be
extradited the UK to face those charges.
THE COUNTER -REVIEW APPLICATION: SETTING ASIDE THE MAGISTRATE’S
DECISION TO GRANT BAIL PENDING THE MINISTER’S DECISI ON UNDER
SECTION 11 OF THE ACT
83. The respondents have instituted a counter -review application in terms of
section 22 (1) (c) of the Superior Courts Act of 2013, on the basis that the Magistrate
committed a gross irregularity on 23 August 2019 by granting the applicant bail
pending the Minister’s decision. T he respondents say that it is apparent from the
provisions of s ection 10 (1) of the Act that once the Magistrate had found that the
appellant was liable to be s urrendered to the UK, he was obliged to issue an order
committing him to prison awaiting the Minister’s decision with regard to his surrender
(or not) to the UK. In other words, a s ection 10 enquiry and a consequent committal
order is a prerequisite for the Minister to exercise his powers under section 11 (a) of
the Act to facilitate the surrender of the appellant to the UK. The appellant does not
oppose the counter-review.
84. The position regarding bail in extradition cases has been regarded as
controversial as appears from certain earlier decisions in England23 as well as our
courts24. However, more recently in Graham25, Harms J had occasion to deal with
the issue in a case where the magistrate had found that the extraditee was liable to
be extradited to the United States of America in terms of section 10(1) of the Act and
had issued an order committing him to prison pending the decision of the Minister.
The extraditee approached the court for an urgent review of that decision.
85. Harms J considered the relevant authorities and found that the power of a
magistrate to grant bail in an extradition case was limited , in terms of section 9(2), to
the duration of the enquiry i n the lower court. Harms J further considered that the
wording of the statute was clear – that the person had to be in custody when the
Minister considered whether to confirm the extradition under s ection 10 and that a
magistrate thus had no power to grant bail at that stage.
86. But the court was clearly concerned about the further detention of the
extraditee while the Minister considered the case and , after setting out the position
both locally and abroad, Harms J referred to the following anomalous issues:
“Does all this mean that a person in the shoes of the applicant has no right to
apply for bail? If that were so, grave injustice could result especially where
there are delays caused by appeals or administratively. It would also have the
strange result that, had the applicant been charged in the Republic of South
Africa, he would have received bail and, as far as I know, once he reaches the
United States, he is entitled to bail. Furthermore, the potential sentence can be
smaller than the time spent in prison awaiting extradition.”
87. The court in Graham found, however, that even though the magistrat e’s court
had no jurisdiction to grant bail in extradition cases, a superior court retained the
inherent jurisdiction that permitted such courts, both here and in England , to grant
bail in such circumstances. The learned Judge held further that the provisions of the
23 R v Spilsbury [1898] 2 QB 615.
24 Ex Parte Reckling 1920 CPD 567; R v Blumenthal 1924 TPD 358.
25 Ex Parte Graham: in re United States of America v Graham1987(1) SA 368 (T) at 372 D-E.
Act did not in any way amend or take away such inherent power of the superior
court. In Veenendal26, Mahomed J came to a similar conclusion.
88. Both parties before us are in agreement that the provisions of s ection 10(1) of
the Act as it stands are unconstitutional to the extent that they do not permit a court,
and in particular a magistrates’ court, the power to grant bail in circumstances where
a person liable to be extradited is awaiting the decision of the Minister , or where that
person may wish to exercise the right to review a magistrate’s decision or that of the
Minister.
89. The respondents submit ted that the decision of the Constitutional Court in
Robinson27 changed the common law as expounded in Graham and Veenendal: that
the High Court had the inherent jurisdiction to grant bail pending the decision of the
Minister. They also relied on the decision this Division in Freedendal 28 for this
proposition. Our understanding of the Robinson and Freedendal judgments is that
they did not change or take away the High C ourt’s inherent jurisdiction to grant bail
to an extraditee pending the decision of the Minister. Rather, it seems to us that they
deal with the review of the powers of the Minister to surrender the extraditee where
there was no appeal or review of the decision of the magistrate not to release the
extraditee on bail pending the decision of the Minister.
90. We are therefore in agreement with the appellant that in terms of the common
law the High C ourt retains its inherent jurisdiction to grant bail in the circumstances
considered in Graham and Veenendal. What is, however, clear from Robinson and
Freedendal is that, after making an order that a person is liable to be extradited , a
magistrate has no power to grant bail pending the decision of the Minister. The only
remedy available to an extraditee in such circumstances is a direct approach to the
High Court asking it to exe rcise its inherent jurisdiction to grant bail . That of course
takes time and costs money, and it would thus be preferable for the magistrate who
has heard the extradition application , and is familiar with the case , to make the
decision to grant bail there and then.
26 Veenendal v Minister of Justice 1993 (1) SACR 154 (T).
27 Director of Public Prosecutions, Cape Town v Robinson 2005 (4) SA 1 (CC).
28 Freedendal v Minister of Justice and Correctional Services 2021 (1) SACR 634 (WCC).
91. We will thus deal with the question relating to the unconstitutionality of s ection
10(1) on this basis . We further agree with the appellant that , even if the High C ourt
retains its inherent jurisdiction to grant bail to a person in cases like these , that
power does not render the provision constitutionally compliant.
92. In Robinson, Yacoob J explained the appropriate procedure as follows:
“[5] Section 10 of the Act requires the magistr ate to determine whether the
person is liable to be surrendered to the foreign State concerned and, in the
case where the person is accused of the commission of an offence, whether
there is sufficient evidence to warrant a prosecution in the foreign State. A
magistrate who makes a positive finding in relation to these matters must make
an order committing that person to prison “ to await the Minister’s decision with
regard to his or her surrender ”. If the magistrate finds that the evidence does
not warrant t he issue of an order of committal or that the required evidence is
not forthcoming within a reasonable time she must discharge that person. A
magistrate issuing a warrant for committal to prison is obliged to forward a copy
of the record of the proceedings together with a report deemed by the
magistrate to be necessary to the Minister immediately. The magistrate does
not in a section 10 enquiry make an order for the surrender of the person
sought to be extradited. A person may not be extradited consequent u pon the
magistrate’s decision. She may be committed to prison only.”
93. The learned Justice then summarised the procedure as follows:
“[7] In summary therefore, a person whose extradition is requested by a foreign
State in terms of section 4(1) must be brought before an extradition magistrate
who determines whether the person is liable to be surrendered in terms of
section 10 of the Act. The Minister cannot make an order for the extradition of
any person unless a magistrate has committed that person to p rison after a
section 10 enquiry. An order of committal by a magistrate is a prerequisite to
the Minister’s decision to surrender. The extradition magistrate and the Minister
both play a role in the extradition if there is a section 10 enquiry.”
94. It is thus clear that Constitutional Court regards the committal of a person to
prison by a magistrate as a jurisdictional requirement that has t o be complied with
before that person can be extradited. Absent that , no extradition can take place
because it would not be possible for the Minister to exercise his executive function
without the person being held in custody pe nding such decision. The practice which
has developed over the years of extending bail of a person found liable to be
extradited, will therefore render it impossible for the Minister to exercise his powers
to ultimately effect the extradition.
95. It is common cause that the appellant was not committed to prison by the
Magistrate under section 10 of the Act after the completion of the enquiry in which he
found that the appellant was liable to be s urrendered to the UK . Accordingly, the
jurisdictional prerequisite for the exercise of the Minister’s power to surrender the
appellant was lacking and his decision in that regard is ultra vires and unlawful . It
therefore falls to be reviewed and set aside under the principle of legality as the
respondents contend in the counter -application. As we have said, this is common
cause.
96. Further, and as Robinson makes plain, the Magistrate could not have extended
the appellant’s bail pending the Minister’s decision. He was obliged under the Act to
order the appellant to be held in custody in order that the Minister could lawfully
exercise his powers under s ection 11. The decision to extend the appellant’s bail is
similarly ultra vires and it is liable to be reviewed as a gross irregularity by the
Magistrate under section 22(1)(c) of the Superior Courts Act . It follows that that part
of the Magistrate’s order which purports to extend the appellant’s bail falls to be set
aside and the appellant must be committed to prison, awaiting a fresh decision by
the Minister.
THE APPELLANT’S CONSTITUTIONAL ATTACK ON SECTION 10
97. As we have already observed, the concession on behalf of the appellant to the
counter-review application is met with a collateral challenge to the constitutionality of
section 10 of the Act. The attack is f ounded on the contention that, since the section
does not give a magistrate the power to g rant bail pending the Minister’s decision, it
is unconstitutional. The respondents (and in particular the Minister) do not oppose
the granting of such relief.
98. There is thus no dispute between the parties that section 10(1) in its current
form infringes the appellant’s right to freedom and security of the person under
section 12 (1)(a) of the Constitution which is to the following effect:
“Everyone has the right to freedom and security of person, which includes the
right -
(a) not to be deprived of freedom arbitrarily or without just cause.”
99. The attack in the collateral challenge to the unconstitutionality of s ection 10(1)
is two -pronged. Firstly, it was submitted by counsel that the introduction of the
Constitution could, arguably, lead to an interpretation of the Act and the common
law, which effectively overrules Graham and Veenendal, without necessarily
declaring the Act unconstitutional. In advancing a constitutionally complia nt
interpretation, they accept that the magistrate’s courts , being creatures of statute,
lack the inherent powers enjoyed by the superior courts.
100. The appellant seeks to overcome this hurdle by advancing the argument that a
magistrate has ancillary powers that can be used to ensure constitutional
compliance. In this regard the appell ant refers to Jones and Buckle 29 where the
learned authors state the following:
“The magistrates’ courts are creatures of statute and have no jurisdiction
beyond that granted by the statute creatin g them. Thus, for example, they have
no jurisdiction in terms of the Magistrates Court Act to make declaratory orders.
They have no inherent jurisdiction such as is possessed by the Constitutional
Court, the Supreme Court of Appeal and the High Court of So uth Africa and
can claim no authority which cannot be found within the four corners of their
constituent Act.
29 Jones and Buckle: The Civil Practice of the Magistrates’ Courts in South Africa, RS 25, 2022 Act –
p77.
This does not mean that the magistrate’s court has no powers which are not
stated in so many words in the Act creating it, or that it is necessary to give
those powers such a restrictive interpretation as to practically, in many cases,
lead to a miscarriage of justice.
Authority may be implied as well as expressed, and when the Act gives
jurisdiction to the court on the main subject in dispute, its purpose is not to be
defeated because ancillary powers which are necessary to enforce a
jurisdiction have not been specifically mentioned. The doctrine of implied
jurisdiction can arise where the act is silent: expressum facit cessare tacitum.
Otherwise, t he express wording of the act must be adhered to; in regard to
matters which the proclamation does not touch the magistrate should keep
within the terms of the statute.”
101. The appellant sought to illustrate the practical application of this principle with
reference to Mashiya30, where it was held that a magistrate had the power to
suspend the issuing of a warrant of arrest, notwithsta nding the provisions of s ection
67 (1) (b) of the CPA that, if an accused person who is released on bail fails to
remain in attendance at the criminal trial –
“the court before which the matter is pending shall declare the bail provisionally
cancelled and the bail money provisionally forfeited to the State, and issue a
warrant for the arrest of the accused.”
102. In Mashiya the cou rt relied on the following principles of constitutional
interpretation laid down by the Constitutional Court in Bertie Van Zyl31:
“[20] The Constitution requires courts deciding constitutional matters to declare
any law that is inconsistent with the Constitution invalid to the extent of its
inconsistency. However, the Constitution in section 39(2) also provides that:
“When interpreting any legislation, and when developing the common law or
30 Sulani v Mashiya and another 2018(2) SACR 157.
31 Bertie van Zyl (Pty) Ltd and another v Minister of Safety Security and ot hers 2010 (2) SA 181 (CC)
at paras 20 -21 and 23.
customary law, every court, tribunal or forum must promote the spirit, purport
and objects of the Bill of Rights.”
This Court has interpreted this provision to mean, inter alia, that:
“The Constitution requires that judicial officers read legislation, where
possible, in ways which give effect to its fundamental values. Consistently
with this, when the constitutionality of legislation is in issue, they are under a
duty to examine the objects and purport of an Act and to read the provisions
of the legislation, so far as is possible, in conformity with the Constitution.”
Thus when the constitutionality of legislation is challenged, a court ought first to
determine whether, through “ the application of all legitimate interpretive aids ”,
the impugned legislation is capable of being read in a manner that is
constitutionally compliant.” (Internal references omitted)
103. The appellant thus submits that if this Court were to read the provisions of
section 10 (1) in such a way as to give effect to the fundamental rights of the
Constitution, it would enable a magistrates’ court to resort to its ancillary powers to
extend the bail already granted and there would be no need to declare the provisions
of section 10 (1) unconstitutional. We do not agree with the submission.
104. The Act is clear in that it does not give a magistrate the power to grant bail to a
person that has been found liable to be extradited, pending the decision of the
Minister. In those circumstances, a magistrate does not have any such ancillary
power as contemplated in the extract referred to above in Jones and Buckle. It must
be borne in mi nd that the granti ng of bail after a person has been found to be
extraditable might involve wholly different considerations to those which existed
while the inquiry was on -going. It could thus not be suggested that the extension of
bail was a ncillary in such circumstances. Accordingly, we do not consider that
Mashiya assists the appellant.
105. We can understand that it might be said that a magistrate, in relation to the
issuing of a warrant , may require the ancillary power to stay the enforcement or
execution of the wa rrant in the exercise of his/her discretion: t hat would be a logical
interpretation of the relevant section of the CPA . But there can be no room for such
an argument where the exercise of an ancillary power is ousted by an explicit
provision such as one finds in s ection 10(1). As stated in Jones and Buckle , “The
doctrine of implied jurisdiction can only arise where the act is silent .” However,
section 10(1) is not silent on the issue whether bail can be granted to an extraditee
pending the Minister’s decision or not.
106. On the contrary, we consider that the wording of the Act is clear: the magistrate
must commit a person to prison in the event that the s ection 10 enquiry is successful
and such an order of committal is a prerequisite to the Minister’s decision to
surrender the extraditee . That is the clear ratio in Robinson and a magistrate
consequently has no option but to commit an extraditee to prison in such
circumstances.
107. For these reasons we are of the view , having regard to the express provisions
of s ection 10(1), that it is not capable of being interpreted in conformity with the
Constitution. The alternative approach by the appellant then is a direct attack on the
constitutionality of section 10(1). The background facts relevant to that attack are as
follows.
108. In this matter , from the outset bail was granted by agreement and none of the
considerations normally justifying the refusal of bail were present. The deprivation of
liberty after the finding that he is extraditable under these circumstances is,
according to the appellant, is entirely unwarranted. The appellant thus submits that
the facts of the matter are therefore that the deprivati on of his liberty pending the
Minister’s decision is not just unnecessary but also without just cause. The
respondents take no issue with these general submissions.
109. The question to consider in such an enquiry is wheth er or not s ection 10(1)
limits the extraditee’s right to freedom arbitrarily or without just cause. Put differently,
is the limitation imposed by section10(1) reasonable and justifiable in terms of s36 of
the Constitution? This Court therefore has to assess whether the infringement of the
right to freedom under s ection 10(1) is reasonable and justifiable in an open and
democratic society.
REASONABLE LIMITATION
110. Section 36, which deals with the limitation of rights in the Bill of rights, reads as
follows:
“(1) The rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable in an
open and democratic society based on human dignity, equality and freedom,
taking into account all relevant factors, including-
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
2. Except as provided in subsection (1) or in any other provision of the
Constitution, no law may limit any rights entrenched in the Bill of Rights.”
111. The arrest and imprisonment of any person is indisputably the clearest case of
the limitation of personal freedom. Further, the right to freedom of the person under
section 12(1)(a) of the Constitution has two facets, a substantive side and procedural
side. In Smit32, incidentally an extradition application in which the constitutionality of
certain sections of drug-related statutes was challenged, the judgment of Madlanga J
for the majority of the Court is instructive in this regard:
32 Smit v Minister of Justice and Correctional Services and others 2021 (3) BCLR 219 (CC).
“[101] The right not to be deprived of freedom arbitrarily or without just cause
protected by section 12(1)(a) of the Constitution has two facets – i.e.
substantive and procedural facets. In Boesak Langa DP said that “[t]his Court
has held that section 12(1 )(a) entrenches two different aspects of the right to
freedom, the substantive and the procedural”.
[102] Both facets have to be satisfied for a deprivation of freedom not to be
inconsistent with section 12(1)(a). Let me start with the substantive facet. In
Bernstein O’Regan J said that the substantive facet relates to the grounds for
the deprivation of freedom; “the deprivation of freedom will not be constitutional
[if] the grounds upon which freedom has been curtailed are unacceptable ”. In
similar vein, in De Lange Ackermann J said that “[t]he substantive aspect
ensures that a deprivation of liberty cannot take place without satisfactory or
adequate reasons for doing so”.
[103] Without doubt, an arrest under section 5(1)(a) constitutes a deprivation of
freedom and thus implicates the right not to be deprived of freedom arbitrarily
or without just cause. The question is: does this section satisfy the test for the
substantive facet of the section 12(1)(a) right? Section 5(1) of the Extradition
Act provides:
“(1) Any Magistrate may, irrespective of the whereabouts or suspected
whereabouts of the person to be arrested, issue a warrant for the arrest of
any person—
(a) upon receipt of a notification from the Minister to the effect that a
request for the surrender
(b)
(c)
(d) of such person to a foreign State has been received by the Minister; or
(b) upon such information of his or her being a person accused or
convicted of an extraditable offence committed within the jurisdiction of a
foreign State, as would in the opinion of the Magistrate justify the issue of
a warrant for the arrest of such person, had it been alleged that he or she
committed an offence in the Republic.”
[104] I think the substantive facet is satisfied. That is so because the need to
arrest for purposes of extraditing in fulfilment of the Republic’s international
obligation to extradite (where appropriate) does provide “acceptable”,
“satisfactory” or “adequate reasons” for depriving the person concerned of
freedom. The need to extradite stems from consid erations of reciprocity and
comity amongst nations. This is explained … by Goldstone J in Geuking”
(Internal references otherwise omitted)
112. We pause to refer again to Geuking where Goldstone J sketched the
background to extradition requests as follows:
“[1] Extraditing a person, especially a citizen, constitutes an invasion of
fundamental human rights. The person will usually be subject to arrest and
detention, with or without bail, pending a decision on the request from the
foreign state. If surrender is ordered, the person will be taken in custody to the
foreign state.
[2] The need for extradition has increased because of the ever -growing
frequency with which criminals take advantage of modern technology, both to
perpetrate serious crime and to evade arrest by fleeing to other lands. The
government of the country where the criminal conduct is perpetrated will wish
the perpetrator to stand trial before its courts and will usually offer to
reciprocate in respect of persons similarly wanted by the foreign state. Apart
from reciprocity, governments accede to requests for extradition from other
friendly states on the basis of comity. Furthermore, governments do not wish
their own countries to be, or be perceived as safe havens for the criminals of
the world.”
113. There is therefore no doubt, in our view, that in extradition cases there is a
need to arr est persons liable to be extradited in fulfilment of South Africa’s
international obligation to extradite (where appropriate) and that this provides
“acceptable”, “satisfactory”, or “adequate reasons” for depriving person s concerned
of their freedom. Given such justifiable reasons, the substantive facet is therefore
satisfied for depriving such persons of their freedom, as the judgment of Madlanga J
makes clear.
114. On the other hand, the procedural facet requires that persons should not be
deprived of their physical freedom unless fair and lawful procedures have been
followed. Madlanga J dealt with that facet as follows in Smit:
“[105] The procedural facet “ requires that no -one be deprived of physical
freedom unless fair and lawful procedures have been followed ”. And that is so
even in instances where there is no fair procedure expressly prescribed by the
Constitution on the manner of deprivation of freedom. The procedure will be fair
if there is the “ interposition of an impartial entity, independent of the Executive
and the Legislature to act as an arbiter between the individual and the State ”.
And in Lawyers for Human Rights Jafta J said
“[i]mplicit in the procedural aspect of the right is the role played by courts.
Judicial control or oversight ensures that appropriate procedural safeguards
are followed.”
This, of course, excludes instances which – although there is no involvement of
the Judiciary – are re asonable and justifiable under sect ion 36(1) of the
Constitution.
[106] Axiomatically, this requirement can be satisfied only if, in terms of the
legislation in issue, a Judicial Officer does indeed play the role of a Judicial
Officer. That is, in the se nse of being able to act as an independent arbiter and
to exercise the kind of oversight that guarantees procedural safeguards.
Requiring a Judicial Officer to rubberstamp what a member of the Executive
branch of State presents to her or him is inconsonant with this requirement.”
(Internal references otherwise omitted)
115. The respondents submit , correctly in our respectful view, that s ince the
magistrate has no discretion to consider granting an extraditee bail pending the
Minister’s decision to surrender, a judicial officer is excluded from acting as an
independent arbitrator insofar as it relates to the issue of bail pending the Minister’s
decision. There is , in such circumstances, no interposition of any impartial entity,
independent from t he e xecutive and the legislature to act as an impartial arbiter
between the extraditee and the state.
116. For all of these reasons we are in agreement that s ection 10(1) of the Act does
not satisfy the t est for the procedural facet as contemplated in s ection 12 (1) of the
Constitution - the right not to be deprived of freedom arbitrarily or without just cause.
117. The respondents further submit that it is a fundamental tenet of our
constitutional state that imprisonment should serve a compelling public purpose and
that the measures that are employed in that regard should go no further than is
necessary to achieve th ose purposes. It seems to us that t he purpose of section 10
(1) of the Act, insofar as it rela tes to the requirement of the committal to prison of
persons pending the decision of Minister to surrender them, is the following:
a) to give effect to the state’s duty to expeditiously surrender the extraditee
to the requesting state;
b) to give effect to considerations of reciprocity and comity amongst nations;
and
c) to ensure that the person is readily available for transfer to the requesting
state when the decision to surrender has been taken.
118. We are in agreement with the submissions made by both parties, that the
nature and extent of the lim itation on the s ection 12(1) right is over-broad to the
extent that s ection 10(1) provides for the detention of all extraditees pending the
Minister’s decision irresp ective of whether the person is a flight risk or not, and
without due regard for their personal circumstances such as age, health and/or
disability. Even in circumstances where the State and the magistrate are satisfied,
given the facts of the particular case, that an extraditee who is out on bail, will
surrender himself or herself once the Minister has decided to surrender that person,
the magistrate’s hands are presently tied.
119. Furthermore, in circumstances where the offence in respect of which the
extradition is being sought is less serious , for example, than those referred to in
schedules 5 or 6 of the CPA, where bail may readily be granted, there is no room for
the consideration of bail here.
120. Both parties have referred us to the position in respect of the granting of bail
pending extradition in various international jurisdictions. For present purposes we will
limit our discussion to the decision of the Supreme Court of Namibia (SCN) in
Alexander33. We do so because our northern neighbour previously applied the Act,
before adopting its own legislation in 2011 – the Namibian Extradition Act , 11 of
1996 (the Namibian Act) – and, further, because the judgment prov ides a useful
summary of relevant foreign case law.
121. Section 21 of the Namibian Act ha d an express provision regarding bail once a
person had been committed for extrad ition: it was described as follows by Strydom
AJA in Alexander.
“[31] Sec. 21 concerns the issue of bail and provides that once a committal
is ordered by the magistrate in terms of sec. 12(5) or 15(2), no person so
committed shall be entitled to be granted bail pending the Minister’s decision in
terms of sec. 16, or pending an appeal noted under sec. 14, or where the return
to a designated country is ordered by the Minister. Consequently, once a
person was committed, and until he was rendered to such country, such person
may not be granted bail.”
We pause to mention that unlike our Act, which is silent on the extension of bail
pending appeal, the Namibian Act expressly proscribed the granting of bail in such
circumstances.
33 Alexander v Minister of Justice and others 2010 NASC 2 (9 April 2010).
122. The appellant’s challenge to the constitutionality of s ection 21 before the NSC
was upheld and, in the process of a tho roughly researched and reasoned judgment,
Strydom AJA referred to the position in certain international jurisdictions, including
South Africa, given that our laws (including the Act) previously applied in that
country. It is thus convenient to deal with some of those decisions.
123. Strydom AJA referred to the judgment s in Spilsbury and Graham, to which we
have already referred, and confirmed that the Namibian High Court also possessed
the inherent jurisdiction to grant bail to persons liable to be extradited while awaiting
the relevant ministerial decision.
124. Strydom AJA also noted the position in Ireland in Gilliland34 where that
country’s Supreme Court was of the view that the test for granting bail pursuant to a
request by persons committed to return to the country who had requested their
extradition was no more stringent in the case of extradition than in an ordinary
criminal trial before the courts of the requested state.
“In either case the… State’s duty must operate in a way that will not conflict
with the fundamental right to personal liberty of a person who stands convicted
of an offence under the law of the State. Th e right to personal liberty should not
be lost save where the loss is necessary for the effectuation of the duty of the
State as the guardian of the common good - in the extradition cases the duty
normally being to fulfil treaty obligations and in ordinary criminal cases normally
to enable the criminal process to advance to a proper trial. If in either case a
court is satisfied that there is no real likelihood that the prisoner, if granted bail,
would frustrate the State’s duty by absconding, I do not consider the bail should
be refused on the absconding test.”
34 Attorney General v Gilliland [1995] I.R. 643 at 646.
125. In advancing this line of reasoning further, Strydom AJA also referred to the
position in the United States of America in Paretti35 where the 9 th Circuit Court of
Appeal opined as follows.
“The problem with the government’s argument is the implicit premise that its
interest in the enforcement of extradition treaties is materially different from and
greater than its interest in the enforcement of o ur own criminal laws. In the last
analysis, the purpose of extradition treaties is to strengthen our hand in
enforcing our own laws through the cooperation of other countries in
apprehending fugitives. Yet the government implicitly argues that the law
enforcement interest served by extradition treaties is somehow different from
and greater than its interest in enforcing our domestic laws. The government
fails to suggest any difference, and we can fathom none. If the government’s
interest in avoiding all ris k of flight pending an extradition hearing justified
detention without bail, then it stands to reason that the same interest would also
justify pre -trial detention in domestic criminal cases. Yet if Paretti had been
arrested on charges of violating our own laws against business fraud, and was
neither a flight risk nor a danger to the community, it would be unthinkable that
he could be held without bail pending trial.”
126. The NSC thus held that the provisions of s ection 21 of the Namibian Act were
in breach of the right to liberty enshrined in Art 7 of the Namibian Constitution and it
ordered the section to be struck down.
127. We find the reasoning i n the Namibian, Irish and American courts persuasive
and we illustrate our approach by way of the following local exa mple. If the appellant
had been arraigned before the Magistrate on charges under SORMA, he would have
been entitled to apply for bail, and if the court was satisfied that he was not a flight
risk, he might have been eligible for bail, perhaps with conditio ns attached thereto
such as non -interference with witnesses and the like. Further, if the appellant had
been convicted locally under SORMA and had been granted leave to appeal, the
35 Paretti v United States 112, F.3d I363(9th Cir 1997).
Magistrate would have been entitled to consider extending such bail on similar terms
and conditions.
128. In our view the Act presently leads to the following anomalies. A person such
as the appellant, who has bee n found liable to be extradited by the Magistrate, has
the right to appeal that finding directly to the High Cour t under section 13 of the Act.
And when he does so, the appellant has the express right to apply for bail under that
section which reads as follows.
“13. Appeal
(1) Any person against whom an order has been issued under section 10
or 12 may within 15 days after the issue thereof, appeal against such order to
the provincial or local division of the Supreme Court having jurisdiction.
(2) …
(3) Any person who has lodged an appeal in terms of subsection (1) may
at any time before such appeal has been dispo sed of, apply to the magistrate
who issued the order in terms of section 10 or 12 to be released on bail on
condition that such person deposits with the clerk of the court, or with a
member of the Department of Correctional Services, or with any police off icial
at the place where such person is in custody, the sum of money determined by
a magistrate.
(4) If the magistrate orders that the applicant be released on bail in terms
of subsection (3), the provisions of sections 66, 67, 68 and 307(3),(4) and (5) of
the Criminal Procedure Act, 1977… shall mutatis mutandis apply to bail so
granted, and any reference in those sections to–
(a) the prosecutor who may act under those sections, shall be deemed to
be a reference to such person who may appear at an inquiry h eld under this
Act;
(b) the accused, shall be deemed to be a reference to the person released
on bail subsection (3);
(c) the court, shall be deemed to be a reference to the magistrate who
released such person on bail; and
(d) the trial or sentence, shall be deemed to be a reference to the
magistrate’s order under section 10 or 12.”
129. Yet, if the appellant elects not to exercise the right of appeal under section 13
but rather to review the decision to extradite (whether such review be under section
22 of the Superior Courts Ac t or by way of a legality challenge ), he must be held
without bail. So too, if the appellant elects not to approach the High Court for
competent relief, but to rely on his right to petition the Minister not to confirm the
extradition, he is deprived of his liberty while waiting for this administrative function to
be discharged. It is safe to assume, given the history of this matter, that such
detention might be for an appreciable period of time.
130. It is clear to us that Alexander and the cases referred to therein stress the
importance of the liberty of the indivi dual and the protection against arbitrary
detention in the context of extradition . The upshot of this is that the mere fact that a
person is liable to be extradited does not serve as an overriding factor per se for the
detention of the person without the possibility of bail being considered. Furthermore,
where a person does not ordinarily present a flight risk or is a danger to society in
circumstances where bail would ordinarily be granted in terms of the domestic laws
of the requested state, there is no reason why a person who is liable to be extradited
should not be treated similarly and be granted bail.
131. In the present case, it is not in dispute that the unavailability of bail in respect of
a person that has been found liable to be extradited pending the decision of the
Minister is unconstitutional and the respondents do not attempt to justify the
constitutionality of section 10 (1). Indeed, the respondents con cede that section 10
(1) infringes the right of an extradit ee not to be deprived of his freedom arbitrarily ,
without just cause and that the infringement is not justifiabl e in terms of section 36 of
the Constitution. They say so for the following reasons:
(a) Section10(1) excludes the court from acting as an arbiter insofar as it
relates to the issue of bail pending a decision of the Minister in that it does not
grant the magistrate the discretion to release an extraditee on bail pending
such decision;
(b) It deprives the High Court of its inherent jurisdiction to consider bail
pending the Minister’s decision;
(c) The section does not satisfy the test for the procedural facet of the
invasion of the section 12(1)(a) constitutional right;
(d) The limitation is over -broad since section 10(1) provides for the
detention of all extraditees pending the Minister’s dec ision, even under
circumstances where both the State and the magistrate are satisfied that an
extraditee will render him -/herself to the authorities in the event of the Minister
ordering extradition to the relevant requesting state.
132. We disagree with the c ontention made by the respondents in para (b) above.
For the reasons already advanced above, the inherent jurisdiction of this Court to
grant bail in circumstances such as this remain undisturbed due regard being had for
the provisions of section 173 of th e Constitution, which confirms the inherent power
of the superior courts and which reads as follows:
“The Constitutional Court, the Supreme Court of Appeal and the High Court of
South Africa each has the inherent power to protect and regulate their own
process, and to develop the common law, taking into account the interests of
justice .”
133. In their heads of argument, the respondents submit that bail pending the
decision of the Minister should be considered on a case-by-case basis, employing as
a guide the princ iples as set out in sections 60(11) (a) and (b) of the CPA and
propose that section 10(1) of the Act should be amended accordingly.
134. We agree with the submission of the parties that section 10(1) does not pass
constitutional muster insofar as it does not provide a magistrate, who has made a
committal order, the power to extend or grant bail pending the Minister’s decision in
terms of section 11 of the Act. As a resul t, we hold the view that the Act does not
conform with the Bill of Rights insofar as it results in an unjustified limitation of the
right against arbitrary deprivation of freedom and thus constitutes an unjustified
limitation of section 12 (1) (a) of the Constitution.
REMEDY
135. Our finding of constitutional invalidity in respect of section 10(1)(a) leads to
consideration of section 172 of the Constitution:
“172. Powers of courts in constitutional matters
1. When deciding a constitutional matter within its power, a court –
(a) must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency; and
(b) may make any order that is just and equitable, including
(i) an order limiting the retrospect ive effect of the declaration of
invalidity; and
(ii) an order suspending the declaration of invalidity for any period and
on any conditions, to allow the competent authority to correct the
defect.
2. (a) The Supreme Court of Appeal, the High Court of South Africa or a court
of similar status may make an order concerning the constitutional validity of an
Act of Parliament, a provincial Act or any conduct of the President, but an order
of constitutional invalidity has no force unless it is confirmed by t he
Constitutional Court.
(b) A court which makes an order of constitutional invalidity may grant a
temporary interdict or other temporary relief to a party, or may adjourn the
proceedings, pending a decision of the Constitutional Court on the validity of
that Act or conduct.”
136. The power of the court in making an appropriate order under this section is
wide and unbounded. In Hoerskool Ermelo36 Moseneke DCJ put it thus.
“[97] It is clear that section 172(1)(b) confers wide remedial powers on a
competent court adjudicating a constitutional matter. The remedial power
envisaged in section 172(1)(b) is not only available when a court makes an
order of constitutional invalidity of a law or conduct under section 172(1)(a). A
just an equitable order may be made even in instances where the outcome of a
constitutional dispute does not hinge on constitutional invalidity of legislation or
conduct. This ample and flexible remedial jurisdiction in constitutional disputes
permits a court to forge an ord er that would place substance above mere form
by identifying the actual underlying dispute between the parties and by
requiring the parties to take steps directed at resolving the dispute in a manner
consistent with constitutional requirements. In several cases, this Court has
found it fair to fashion orders to facil itate a substantive resolution of the
underlying dispute between the parties. Sometimes orders of this class have
taken the form of structural interdicts or supervisory orders. This approach is
valuable and advances constitutional justice particularly by ensuring that the
parties themselves become part of the solution.”
137. The parties are in agreement that the operatio n of such declaration of invalidity
should be suspended for a period of 24 months to afford Parliament an opportunity
to remedy this defect. But what to do in the interim? It seems to us that a reading -in
36 Head of Department: Mpumalanga Department of Education and another v Hoerskool Ermelo and
another 2010 (2) SA 415 (CC).
is the most appropriate route in the circumstances to ensure a just and equitable
order under section 172(1)(b).
READING IN
138. While both parties agree that there should be a reading-in provision in the Act
to permit the granting of bail in circ umstances such as the present , they are not in
agreement with the content thereof. The appellant proposes the following provision
be read into section 10(5) of the Act.
“The magistrate issuing a committal order may grant bail extended of the
person brought before him, if the interests of justice permit that person to
release or continued release on bail, pending the Minister’s decision in terms of
section 11 of this Act.”
139. The respondents on the other hand submit that the relevant provision be read
in at the end of section 10(1) . They further submit that any interim reading-in should
deal with the circumstances where an extraditee is sought for trial in the requesting
state on offences which are similar to those contemplated in Schedule 6 offences of
the CPA. They accordingly suggest the following:
“In the event that such person does not intend to appeal against such order to
the Supreme Court, such person may , at any time pending the Minister’s
decision, apply to the magistrate, who issued the committal order, to be
released on bail on conditio n that such person deposit with the clerk of the
court, or with a member of the Department of Correctional Services, or with any
police official at the place where such person is in custody, the sum of money
determined by the magistrate. The magistrate is suing the committal order may
grant bail or extend the bail of such person, if the interests of justice permit the
person’s release or continued release on bail, pending the Minister’s decision in
terms of section 11 of this Act. However, in the event of s uch person being
sought on an offence/s or an offence/s equivalent to those listed in Schedule 6
of the Criminal Procedure Act, the magistrate may grant bail or extend the bail
of such person, if the magistrate is satisfied that exceptional circumstances
exist in the interest of justice permit his or her release.”
140. The respondents proposed reading in is based on what Sher J said in Tucker
202237.
“83. In Ex parte Graham … Harms J (as he then was) held that the power to
grant bail in extradition matters, post a committal order in terms of s 10(1),
should be exercised sparingly, and given the direction in the subsection that in
the event that a magistrate finds at the conclusion of an extradition enquiry that
an extraditee is extraditab le he ‘shall’ issue an order committing him/her to
prison to await the Minister's decision with regard to his or her surrender, the
intention of the legislature was primarily that such an extraditee should be kept
in custody, pending the Minister’s decision.
84. I agree with such an interpretation. In my view, given the language used in
the provision and applying a purposive and contextual interpretation thereto, an
extraditee who is held to be liable to be extradited should not ordinarily be on
bail, pending the Minister’s decision, save in exceptional circumstances. In this
regard it may be noted that the offences for which Tucker is being sought in the
UK are very serious offences in our law which are listed in schedule 6 of the
CPA and were he to be standing trial on such charges in this country, the onus
would be on him to show that exceptional circumstances existed which, in the
interests of justice, permitted his release on bail.”
141. Based on this dictum the respondent s are of the view that it is app ropriate for a
magistrate to grant bail only in circumstances where an extraditee adduces evidence
to satisfy the court that exceptional circumstances exist to permit his or her release
on bail in the interests of justice . It seems to us that in Tucker 2022, the court was
called upon decide whether or not magistrate wa s empowered in terms of section
10(1) to grant bail pending the Minister’s decision or whether bail under such
circumstances could only be granted by the High Court on the basis of its inherent
jurisdiction. We consider that Sher J, respectfully in our view , erroneously accepted
37 Director of Public Prosecutions, Western Cape v Mahlanga N.O.and another; Tucker v Director of
Public Prosecutions, Western Cape 2023 (1) SACR 245 (WCC) (“Tucker 2022”).
that the magistrate wa s empowered to grant bail to an extradite e pending the
decision of the Minister.
142. Further, it seems to us, that what influenced Sher J to conclude that it may be
appropriate in a given case for a magistrate to grant ba il, was based on the
requirement that the extraditee should adduce sufficient evidence to satisfy the court
that exceptional circumstances exist which in the interests of j ustice permit his or her
release. This conclusion appears to us to have been based on the fact th at the
offences for which the extraditee (Tucker) was being sought in the UK are listed in
schedule 6 of th e CPA. Further, it appears to us that Sher J conside red that it was
primarily the inten tion of the legislature that an extraditee who had been declared
liable to be extradited should not be out on bail pending the Minister’s decision, save
in exceptional circumstances.
143. The specific facts of the matter also seem to have influenced Sher J in
expressing strong views regarding the fixing of bail for a person that had been found
to be liable to be ext radited. In that case Tucker had been tried and convicted for a
similar offence and was sentenced to 8 years imprisonment. He was a fugitive from
justice and unequivocally stated that he did not intend to return voluntar ily to the UK
and he clearly did everything possible to avoid being extradited.
144. Given that the constitutionality of section 10 of the Act has been expressly
challenged in this matter and, importantly, that it is common cause that the section is
unconstitutional to the extent that it precludes the consideration of bail pending t he
Minister’s decision, we are of the view that Tucker 2022 is distinguishable and that
we are not bound to follow it.
145. In considering the extent of the proposed reading in provision we are mindful of
the separation of powers principle and that any intrusi on by the Court on the powers
of the legislature must be measured accordingly. The approach was set out by the
Constitutional Court in National Coalition 38. Hence, we are required to provide
appropriate relief under section 38 of the Constitution, given th e infringement of the
38National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others
2000(2) SA1 (CC) at [64] – [65].
Bill of R ights while at the same time offering the necessary deference to the
legislature in accordance with the principle of the separation of powers. As the apex
court pointed out, the formulation of such deference is not readily ca pable of
formulation and will have to be determined on a case-by-case basis.
146. That having been said, the following broad principles seem to us to be relevant
here:
a) In deciding whether words should be read into a statute, the court,
firstly, pays careful attention to the need to ensure that the provision which
results from the reading in is consistent with the Constitution and its
fundamental values;
b) Secondly, the result arrived at must interfere with the laws adopted by
the legislature as little as possible. As was observed in National Coalition,
given our past, and where there are statutes that still contain provisions
enacted by a parliament that was not concern ed with the protection of
human rights, the first consideration (mentioned under paragraph (a) above),
often weighs more heavily than the second. It seems to us that section 10(1)
is a telling example of such a statute;
c) Further, when deciding to read words into a statute, a court should also
bear in mind that it will not be appropriate to read in unless the court can
define with sufficient precision just how the statute ought to be extended in
order to be constitutionally compliant;
d) When reading in a court should endeavour to be as faithful as possible
to the legislative scheme within the constraints of the Constitution; and
e) Lastly, it should be borne in mind that whether the remedy the court
grants is one of reading -in or extending the text, the ch oice is not final,
because the legislature is able, within constitutional limits, to amend the
remedy. It should therefore be left up to the legislature to fine tune the
remedy.
147. In applying these guidelines, we proceed to consider the reach and extent of
the reading - in relief the parties require us to adjudicate upon. The principal
objection, and the basis upon which the claim of unconstitutionality is based here, is
the fact that bail cannot be grant ed by a magistrate after it has been found that a
person is to be liable to be extradited and while that finding is pending the decision of
the Minister. In this regard the procedural facet of the r ight to freedom not to be
deprived of one’s liberty arbitrarily or without just cause has been infringed because
of the fact that there is no judicial oversight regar ding the further detention of the
extraditee.
148. We are called upon to grant relief by reading in a remedy in terms of which an
extraditee should be granted the right to apply for bail (or extension of bail previously
granted) after such a person had been declare d liable to be extradited by a
magistrate, pending the decision of the Minister . The reading -in provision should
therefore be consistent with the right o f an extraditee not to be deprived of freedom
arbitrarily or without just cause. At the same time that provision should not interfere
with South Africa’s duty to com ply with its international law obligations to ext radite
persons being sought by foreign states for crimes committed in those states.
149. Our duty is to define with sufficient (and not exact) precision how the provisions
of the Act should be extended to give effect to the right of an extraditee to apply for
bail pending the Minister’s decision to ext radite in order to prevent that such a
person not be deprived of the right to freedom under section 12 of the Constitution
arbitrarily or without just cause. This means no more than an extension of the
provisions of the Act by reading into it a provision that a person who has been found
liable to be extradited should be afforded the right to apply for bail pending the
decision of the Minister and that such provision should be constitutionally compliant.
150. The respondents have asked this C ourt to include in su ch a reading in the
provisions of section 60 (11)(a) and (b) of the CPA 39 and submit that it should find
39 Section 60 (11) of the CPA provides as follows:
“Notwithstanding any provision of this Act, where an accused is charged with an offence —
application when a court decides whether or not an extraditee should be granted bail
pending the Minister’s decision. The respondents therefore submit that the nature of
the offence for which a person such as the appellant is sought should be taken into
account in considering whether he should be granted bail pending the Minister’s
decision. They submit further that if an extraditee is sought on a n offence listed
under Schedule 6 of the CPA, the test to be applied should be similar to that applied
in sections 60(11)(a) of the CPA.
151. Schedule 6 lists the most seriou s offences in our criminal law including murder,
rape and robbery with aggravating circumstances. The provisions of this section of
the CPA place an onus on an accused person to satisfy the court that excepti onal
circumstances exist which permit his release on bail “in the interests of justice”.
152. This Court is well aware of the circumstances that existed at that time (and
persist in our society due to the ever -increasing surge in violent crimes ) which
justified the enactment of these provisions. The crimes listed in Schedule 6 are by
their nature those very crimes which are violent, and which are most invasive of the
rights of personal security of ordinary South Africans. This le gislation was also
enacted in circumstances there was a perception that bail was too readily granted in
such serious cases. See in this regard the comments made in S v Dlamini et al 40 at
paragraphs 67 and 68.
153. We are, however, of the view, that it is not our task, in fashioning a provision to
be read into the Act , to determine that the provisions of section 60 (11) should find
application in circumstances such as the present . We bear in mind that section
60(11) was included in the CPA to address the pressing situation of criminal conduct
in our society. Non constat that we should be called upon to decide the extent of the
gravity with which an offence is viewed in the requesting state. Further, it would in
(a) referred to in Schedule 6, the court shall order that the accused be detained in custody until he or
she is dealt with in accordance with the law, unless the accused, having been given a reasonable
opportunity to do so, adduces evidence which satisfies the court that exceptional circumstances exist
which in the interests of justice permit his or her release;
(b) referred to in Schedule 5, but not in Schedule 6, the court shall order that the accused be detained
in custody until he or she is dealt with in accordance with the law, unless the accused, having been
given a reasonable opportunity to do so, adduces evidence which satisfies the court that the interests
of justice permit his or her release.”
40 1999(2) SACR 51(CC).
our view be an unreasonable limitation on an extraditee’s personal liberty to foist
upon that person an onus to establish criteria for the granting of bail in
circumstances where we are unaware of the criteria applicable to the granting of bail
in a foreign jurisdiction.
154. Furthermore, if regard be had to the provisions of sections 12(2) and (3) of the
Act, we note th at the legislature has set fixed criteria for the determination of bail
pending an appeal to the High Court under that section. Those criteria do not contain
any restrictive reference to section 60(11) of the CPA as the respondents have
asked for here. We note further that those sections were added to the Act in 1996,
thereby introducing an entitl ement to apply for bail before a magistrate once an
appeal to the High Court had been noted, and we wonder whether it was a legislative
oversight or not that secti on 10 was not amended to make provision for bail in
circumstances such as the present.
155. In any event, w e consider that i t should be left to the legislature to deliberate
whether it is necessar y to include the provisions of the CPA relating to bail to be
made applicable to persons who are liable to be extradited. In this regard we remind
ourselves that the Constitutional Court pointed out in National Coalition that a court
must keep in mind the principle of separation of powers, and flowing therefrom the
deference it owes to the legislature in devising a remedy for a breach of the
Constitution in a particular case : it should be left to the legislature to fine -tune the
precise extent of the remedy.
156. We are accordingly of the view that the reading-in provision as proposed by the
appellant should suffice in or der to protect an extraditee’s right to not be deprived of
the right to freedom arbitrarily and without just cause pending the decision of the
Minister or pending an application to the High Court to review eit her the decision of
the magistrate or the Minister, and to provide for the right to apply for bail in such
circumstances. In our view then the following provision should be read into the Act
after the existing section 10(4):
“(5) The magistrate issuing a committal order as aforesaid may grant bail, or
extend the bail already granted under section 10(1), to the person brought
before him, if the interests of justice permit that person to be released, or the
continued release of such person on bail, pending the Minister’s decision in
terms of section 11 of this Act, or any legal proceedings instituted to review the
decisions of either the magistrate or the Minister.”
CONCLUDING REMARKS
157. We consider that the review and appeal41 against the decision of the Magistrate
should only succeed to the extent that he found that the appellant is liable to be
extradited in respect of c ounts 1, 2, 3 and 4. Our finding in this regard is based on
the fact that we are satisfied that the crimes under those counts for wh ich the
appellant is sought in the United Kingdom have prescribed in terms of our law.
158. In respect of the finding that the appellant is liable to be extradited on counts 5,
6 and 7 his application for review and his appeal in that regard is dismissed. W e find
that the Magistrate was correct for the reasons stated above in concluding that the
appellant was liable to be extradited on those counts to the United Kingdom.
159. In respect of the decision of the Minister, we find that the review should
succeed in its entirety given that the Minister based his decision on a finding by the
Magistrate that was partly-flawed. In this regard we consider that the Minister should
now exercise her decision -making power on the basis that the Magistrate’s e rrors
have been corrected – she will now know what the correct legal position is, and she
should be entitled to exercise her discretion with a clean slate that is free of any
reviewable errors.
160. The counter-review application launched by the Minister on the basis that the
magistrate was wrong in not committing the appellant to prison in terms of
section 10(1) of the Extradition Act is upheld on the basis that we consider that the
41 The issues such as the lack of dual criminality and the evidence presented in the form of section
220 admission, were raised both as grounds of review and ap peal, by the appellant for the reasons
stated in paragraphs 5 and10 of his counsel’s heads of argument. The appellant sought an order that
the decision of the Magistrate to dec lare him extraditable be set aside on the basis that the charges
against him had prescribed. And similarly , that the Minister’s decision to extradite him be reviewed
and set aside based on the grounds that the charges had prescribed.
Magistrate was not entitled to extend the bail of t he applicant under section 10(1) of
the Act.
161. Lastly, we are satisfied that t he collateral challenge to the counter -review
application to declare section 10(1) of A ct inconsistent with the Constitution of the
Republic of South Africa must be upheld for the reasons stated above.
QUO VADIS?
162. The last question is how this matter should move forward. The appellant asked
that it should be returned to the Magistrate so that he could reconsider the matter
afresh, particularly with respect to his reviewable errors relating to the prescrip tion of
certain of the charges and the extension of bail in the light of our proposed reading
in. In such circumstances the appellant asks that his original bail b e reinstated and
that he need not surrender himself to the authorities.
163. The respondents on th e other hand ask that the matter be referred back to the
Minister for a fresh decision on whether the appellant should be surrendered to the
UK authorities on counts 5 -7 or not. They submit further that the appellant should be
returned to custody because we have found that the Magistrate did not have the
power to grant him bail pending the Minister’s decision.
164. As we have said, we are exercising our powers under section 172(1)(b) and we
are duty bound to grant an order that is just and equitable in the cir cumstances. We
consider that such order should comprise a referral of the matter back to the Minister
for a fresh decision under section 11 of the Act . We do not think it makes sense to
send the application back to first base in light of our finding that we are satisfied that
certain of the charges (1 - 4) have prescribed while the remainder (5 -7) have not,
and there is nothing further for the Magistrate to decide , given that we are satisfied
that the dual criminality el ement has been established. Those findings will also
facilitate the reconsideration of the Minister’s decision.
165. As far as the appellant’s bail is concerned, his entitlement to apply for bail
pending the Minister’s decision will now be the subject of confirmation of
unconstitutionality by the Constitutional Court. Pending such confirmation, we
propose a reading-in provision as set out above by the inclusion of a section 10(5) in
the Act. In order to avoid any confusion regarding the power of the Magistrate to
consider bail pending the Minister’s decision under section 11, or any further
challenges in that regard, we consider that it is just and equitable that, following the
approach in Graham and Veenendal, we should exercise our inherent jurisdiction
and extend the appellant’s bail on the same terms and conditions as presently apply.
166. As far as costs are concerned, it is so that the appellant has been partially
successful in so far as he has avoided being extradited on counts 1 – 4. He has also
successfully challenged the constitutionality of the Act. Following Biowatch42, it is fair
and in the interests of justice that Mr. Wares should be awarded his costs herein.
Both parties were represented by two counsel and in our view these costs were
warranted.
ORDER OF COURT
Accordingly, it is ordered that:
1. The delay of the Applicant/Appellant (“Mr. Wares”) in instituting the application
for review of the decisions of the First Respondent (“the Magistrate”) made on 23
August 2019 and of the Second Respondent (“the Minister”) made on 19 February
2020, and the appeal, is condoned.
2. The Minister’s delay in bringing the counter -review application in re spect of the
Minister’s decision to surrender Mr. Wares to the United Kingdom is condoned.
3. Paragraphs 2 and 3 of the finding section of the Magistrate’s order of 23 August
2019 are amended to read as follows:
“2. That Mr Wares:
42 Biowatch Trust v Registrar, Genetic Resources and Others (CCT80/08) ZACC14;2009(6) SA
232(CC):2009(10) BCLR 1014 (CC) (3 June 2009).
2.1 is a person whose e xtradition is sought in terms of 3(1) of the
Extradition Act No. 67 of 1962; and
2.2 is liable to be extradited to the United Kingdom.
3. There is sufficient information to confirm that in respect of the offences
listed as charges 5 to 7 in Annexure “ A” to the Certificate of Authentication of
James Wolffe, QC, Lord Advocate (reflected on page 59 of bundle 2 of the
record), Mr Wares was accused of extraditable offences in the United
Kingdom.”
4. Save as stated in paragraph 3 above, Mr. Wares’ review appli cation and the
appeal in respect of the Magistrate’s decision are dismissed.
5. The order made by the Magistrate on 23 August 2019 that Mr. Wares be
granted bail awaiting the decision of the Minister i s reviewed and set aside and
substituted with the following order:
“1. It is ordered that Mr Wares be committed to prison to await the
Minister’s decision regarding his surrender to the United Kingdom”
6. Notwithstanding the provisions of para 5 above, and pending the decision of the
Minister and/or the final determination of any further legal proceedings in relation to
this matter, this Court , exercising its inherent jurisdiction , orders that Mr. Wares is
forthwith released on bail on the same terms and conditions as were determined by
the Magistrate on 23 August 2019.
7. The decision taken, and the order made by the Minister on 19 February 2020 in
terms of section 11(a) of the Extradition Act ordering that Mr. Wares be surrendered
to the United Kingdom to stand trial on six charges of lewd, indecent a nd libidinous
practices and behaviour and one charge of indecent assault for which his extradition
is sought for, is reviewed and set aside and the matter is remitted to the Minister for
reconsideration on such terms as she considers fit.
8. Section 10(1) of the Extradition Act is declared to be inconsistent with the
Constitution of the Republic of South Africa and invalid to the extent that it does not
provide for the power of a magistrate to extend or grant bail after a committal order,
pending an a pplication to review such committal order or pending the Minister’s
decision in terms of section 11 of the Extradition Act.
9. The operation of such declaration of invalidity is suspended for a period of 24
months to afford Parliament an opportunity to enact remedial legislation;
10. The declaration of invalidity shall take effect from the date of the Constitutional
Court order declaring the section unconstitutional;
11. Pending the aforementioned suspension, the following words are hereby read
in to the Extradition Act as section 10(5):
“5 The magistrate issuing the order of committal may grant bail or extend
the bail of the person brought before him, if the interests of justice permit that
person’s release or continued release on bail, pending the Minister’s decision to
be made in terms of Section 11 of this Act, or pending a ny review of the
Magistrate’s decision made in terms of Section 10 of this Act.
12. In the event that Parli ament does not enact remedial legislation within the
period of suspension, the interim reading-in remedy shall become final.
13. The respondents shall be jointly and severally liable to pay Mr. Wares’ costs of
the appeal, the reviews and the costs of the challenge to section 10(1) of the
Extradition Act, such costs to include the costs of two counsel where so employed.
________________
GAMBLE, J
_________________
HENNEY, J
APPEARANCES
For the Applicant : Adv W King SC et Adv B Prinsloo
Instructed by Mathewson Gess Inc Attorneys, Cape Town
For the 2nd & 3rd Respondent : Adv F Petersen et Adv C de Villiers
Instructed by State Attorney, Cape Town