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[2000] ZASCA 191
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McCarthy v Additional Magistrate, Johannesburg and Others (401/98) [2000] ZASCA 191; 2000 (2) SACR 542 (SCA); [2000] 4 All SA 561 (A) (29 September 2000)
Case
no 401/98
IN
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
In the
matter of
ANN
PHYLLIS McCARTHY
Appellant
and
THE
ADDITIONAL MAGISTRATE,
JOHANNESBURG
(MR G VAN WYK)
First Respondent
THE
ADDITIONAL MAGISTRATE,
JOHANNESBURG
(MR R G LE ROUX)
Second
Respondent
THE
STATE
Third Respondent
CORAM
:
Hefer, Nienaber, Howie, Zulman JJA
et
Farlam AJA
DATE
OF HEARING
:
4 September 2000
DATE
OF JUDGMENT
:
29 September 2000
Extradition
- application for warrant in terms of section 5 of Act 67 of 1962 -
whether proceedings should be stayed on ground of
unreasonable delay
.
J U D G M E N T
/FARLAM AJA:
FARLAM
AJA
Introduction
[1] The
appellant in this matter brought an application in the Witwatersrand
Local Division in which she sought the following
orders:
an
order reviewing and setting aside a warrant for her arrest issued on
7 November 1991 in terms of section 5(1) of the Extradition
Act 67
of 1962 by the first respondent, who is an additional magistrate for
the district of Johannesburg (in what follows I
shall refer to Act
67 of 1962 as “the Act”);
(2) an order for the indefinite stay of the proceedings
against her in the case in the magistrates’ court for the
district
of Johannesburg in which an enquiry is to be held in terms
of sections 9 and 10 of the Act with a view to the surrender of the
appellant to the United States of America in terms of sections 11(a)
and 16 of the Act;
an
order referring to the Constitutional Court for determination in
terms of section 103 (4) of the Interim Constitution, Act
200 of
1993, the issue as to whether the provisions of the Act which
permit the same extradition proceedings to be reinstituted
against a
person discharged in terms of section 10 (2) thereof are
inconsistent with the Constitution and invalid;
an
order directing that she should be set at liberty; and
if
the application were opposed, an order directing the respondent or
respondents who do so to pay the appellant’s costs
of suit.
During
argument in the Court below the relief sought by the appellant under
paragraph (3) above was amended and the appellant
sought an order
declaring the Act to be invalid to the extent of its inconsistency
with the Constitution, Act 108 of 1996, and
determining the date
from which the declaration of invalidity should come into effect,
referring the case to the Constitutional
Court for confirmation of
the order of invalidity and granting a temporary interdict against
the third respondent, the State,
from proceeding with the
extradition proceedings against the appellant pending the decision of
the Constitutional Court. The
application having been dismissed by
Heher J, the appellant appeals with the necessary leave to this
Court.
[2] During the argument before this
Court Mr
Bizos,
who appeared with Mr
Hodes
on behalf of the appellant, stated that the appellant was not
persisting in her appeal against the Court
a
quo
’s refusal
to declare the Act or certain sections of it unconstitutional. He
submitted, however, that the learned judge
in the Court
a
quo
had erred in
failing to set aside the warrant for appellant’s arrest and in
failing to grant the indefinite stay of the proceedings
in the
magistrates’ court which the appellant had sought.
Facts
[3] The appellant, who is an
educational psychologist, was born in South Africa and is a citizen
of this country and of Germany.
After spending some years abroad,
inter alia
in the United States of America and Germany, she returned to this
country in about 1988 and has lived here ever since. During 1985,
at
a time when she resided in the United States, the appellant is
alleged to have been involved in a conspiracy to murder the United
States Attorney for the Federal District of Oregon. Before the
indictment could be served upon her she left the United States
and
went to Germany. While she was in Germany an application for her
extradition from Germany was unsuccessfully brought by the
United
States Government, after which she returned to South Africa.
[4] In
1990 the United States Government requested the South African
Government to cause her to be extradited to the United States
to face
the conspiracy to murder charge to which I have referred. She was
arrested in Johannesburg on 11 September 1990 on a
warrant issued in
terms of section 5 of the Act. The warrant was withdrawn the
following day but on that date a second warrant
was issued and the
appellant, who in the meanwhile had been released, was re-arrested on
the same day and brought before a magistrate
who released her on bail
and postponed to 18 October 1990 the enquiry as to whether she should
be extradited. On 18 October 1990
the matter was again postponed,
this time to 9 November 1990.
[5] On
9 November 1990 the State applied for a further postponement because
the Government of the United States had not yet filed
any evidence in
support of its application for extradition. The appellant opposed
this application but it was granted and the
matter was postponed to
22 November 1990, on the basis that the postponement was a final one.
[6] On
22 November 1990 the appellant’s counsel successfully contended
that the documentary evidence filed in support of
the extradition
application was deficient in that the certification of one of the
affidavits had apparently taken place thirteen
days before the
affidavit was deposed to and no evidence had been placed before the
court regarding the procedure for authentication
of documents
according to the law of the United States. The State’s
application for a further postponement to cure the
deficiencies was
refused and the appellant was discharged by the magistrate on the
ground that the required evidence had not been
forthcoming within a
reasonable time.
[7] Nearly a year later, on 7
November 1991, the State applied to an additional magistrate in
Johannesburg, the first respondent
in these proceedings, for another
warrant, this time a third warrant, for the arrest of the appellant
in terms of section 5 of
the Act. The application was brought on
the same papers as the previous one, supplemented by further
affidavits to remedy the
deficiencies in the papers which had caused
the previous application to fail. It seems clear, and for the
purposes of the appeal
I am prepared to find, that the fact that
there had been a previous unsuccessful application for the
extradition of the appellant
almost a year beforehand was not
disclosed to the first respondent before he authorised the warrant.
The appellant was arrested,
for the third time, on 8 November 1991.
She was brought before another additional magistrate for the district
of Johannesburg,
the second respondent. Her representatives raised
a plea of
res
judicata
on her
behalf. It was argued on 10 December 1991 before the second
respondent, who dismissed it on 13 December, 1991.
[8] On 27 January 1992 the
appellant’s application for a review of the second respondent’s
rejection of her plea
of
res
judicata
was
lodged. The review was heard by Stegmann and MacArthur JJ on 8 June
1992. Judgment on the review having been reserved,
the application
for review was dismissed on 1 March 1993 and leave to appeal against
this decision was refused on 30 March 1993.
[9] On
19 April 1993 the appellant’s petition to the Chief Justice for
leave to appeal was lodged and leave to appeal was
granted by this
Court on 18 August 1993.
[10] The appeal itself having been
argued on 24 February 1995, this Court by a majority of three judges
to two dismissed the appellant’s
appeal on 23 May 1995. The
judgment is reported as
S
v McCarthy
,
[1995] ZASCA 56
;
1995
(3) SA 731
(A). The majority judgment was delivered by Van Heerden
JA, who held that an essential element for the successful invocation
of a plea of
res
judicata
was
lacking because, so he held, the appellant’s discharge on the
second warrant had not been a judgment on the merits.
The
judgment proceeded (at 750 D - H):
“
I am also not unmindful
of the fact that on my approach an accused discharged under the
second part of s 10(2) may in at least some
cases be subject to a
number of arrests and enquiries relating to the same
causa
.
It is therefore notionally possible that at the termination of two
or even more such enquiries he may be discharged because
of the lapse
of a reasonable period, and yet again be arrested and ‘tried’.
Here, again, two points should be made.
The first is that a
similar situation may arise in criminal proceedings. I have referred
to the example of an accused discharged
because of a magistrate’s
refusal to grant the prosecution a further postponement.
Conceivably, upon re-arraignment the
same may occur. Yet, because
there has been no judgment on the merits he may be brought before the
court for a third time.
Then, again, it is not beyond the bounds of
possibility that successive trials of an accused may be affected by
gross irregularities
vitiating the proceedings. Yet, in those
circumstances the accused may be called upon to stand trial for a
third time on the
same charge.
The second point is this. Under
s 5(1) of the Act a magistrate has a discretion whether or not to
issue a warrant. If he is aware
that the person in question was
previously discharged under the second part of s 10(2) in relation to
the same
causa
,
he will no doubt refuse to issue a warrant unless satisfied that the
required evidence will be forthcoming within a reasonable
time. And
the organ of the State applying for the issue of the warrant –
generally an Attorney-General or his representative
– will
clearly be under an obligation to disclose to the magistrate the
facts of the previous proceedings.”
[11] The
extradition proceedings had been postponed pending the appeal. They
were due to resume on 29 September 1995. On that
day they were
postponed by agreement to 13 November 1995.
[12] On
13 November 1995 the appellant gave formal notice of her intention to
seek her discharge or in the alternative to have
certain
constitutional issues referred for determination by the High Court in
terms of section 103 (3) of the Interim Constitution.
The matter
was postponed to 11 January 1996 to allow the State to file an answer
and for the appellant to reply to the State’s
answer.
[13] The
second respondent was unavailable on 11 January 1996 and the matter
was postponed to 15 February 1996, on which date the
appellant
objected to the admission of certain further documents tendered by
the State. This objection was overruled on 16 February
1996
whereupon the matter was postponed to 3 April 1996. The matter was
argued on 3 and 4 April 1996, after which the second
respondent
reserved judgment. On 26 April 1996 appellant’s application
for discharge and a referral was dismissed and the
second respondent
ruled that the extradition enquiry should continue. The case was
postponed to 10 June 1996 for the continuation
of the enquiry.
[14] At about this time the
appellant was advised by her legal representatives that it was
possible that the third warrant could
be set aside if the prosecutor
had failed, when applying to the first respondent for the issue of
the third warrant, to disclose
the facts of the previous proceedings
so as to enable him to exercise the discretion whether or not to
issue a warrant which the
majority of this Court held in the first
McCarthy
appeal a magistrate has.
[15] In
order to be able to establish whether the facts of the previous
proceedings had been disclosed to the first respondent
the
appellant’s attorneys endeavoured to ascertain the identity and
whereabouts of the magistrate who had issued the third
warrant. This
information took time to obtain. When they had ascertained that the
first respondent had issued the third warrant
and where he was, the
appellant’s attorneys wrote to him on 22 May 1996 and asked for
his reasons for authorising the third
warrant. The first respondent
asked for a copy of the warrant to be forwarded to him to enable him
to consider the request.
The following day the appellant’s
attorneys sent him a copy of the warrants and he replied to the
request for his reasons
by saying:
“
On the sworn statements put before me by the
Attorney-General I was convinced that the authorisation of the
warrant of arrest was
justified and therefore I had signed it.”
[16] On
29 May 1996 the appellant’s attorneys asked the first
respondent to furnish them with particulars of the documents
and
information placed before him in support of the application for the
third warrant.
On
6 June 1996 the first respondent replied that the relevant
information was in the possession of the Attorney-General for the
Witwatersrand Local Division and that the request should be addressed
to him.
[17] On
12 August 1996 the appellant’s attorneys requested the
Attorney-General to afford them access to the information
in his
possession on which the third warrant was issued. On 14 August 1996
a telephone conversation took place between a representative
of the
appellant’s attorneys and a member of the Attorney-General’s
staff, who stated that Advocate Dörfling,
who handled the
extradition proceedings on behalf of the Attorney-General, was
engaged in a long trial in KwaZulu-Natal and would
contact the
appellant’s attorneys on his return. On 3 September 1996 the
Attorney-General invited the appellant’s
attorneys to arrange
with Advocate Dörfling for inspection of the documents in his
possession. Ten days later, on 13 September
1996, this application
was launched.
The
alleged invalidity of the warrant
[18] The
first point argued by the appellant’s counsel was that the
third warrant for the appellant’s arrest was incorrectly
issued
because the magistrate did not exercise the discretion bestowed upon
him. It was contended that the State was obliged,
when the third
warrant of arrest was applied for, to disclose to the first
respondent that there had been two previous warrants
of arrest issued
in terms of section 5 of the Act, that the first had been withdrawn
and the second had culminated in the appellant’s
discharge in
terms of section 10(2) of the Act almost a year before.
[19] I
have already said that I am prepared to find for the purposes of this
appeal that the fact that there had been an unsuccessful
application
for the extradition of the appellant almost a year before the
application for the third warrant was not disclosed to
the first
respondent before he issued the warrant. Counsel for the appellant
contended that because the State did not make the
required disclosure
the first respondent did not realise when he issued the third warrant
of arrest that there had been two previous
abortive applications for
extradition against the appellant; that the appeallant was
discharged on the second occasion (albeit
not on the merits); that
the State had since then delayed for almost a year its application
for a third warrant of arrest and,
so it was contended, that there
was no explanation for the delay.
[20] It
was contended further that if the first respondent had known of
these matters they would have weighed with him in the
exercise of his
discretion in that he would have had to consider:
whether the required evidence would be forthcoming
within a reasonable time and if he was not satisfied that it would
be done
he would have had to refuse to issue a warrant; and
what was called the State’s delay for almost a
year in applying for a third warrant of arrest and its failure to
offer any
explanation for that delay and whether in the exercise of
his discretion he should grant the warrant despite the lengthy delay
and the absence of any explanation for it, or whether justice and
fairness required that he should decline to do so.
[21] Counsel for the appellant
submitted that as a result of the State’s failure to make what
they contended was the required
disclosure the first respondent
failed to take into account considerations relevant and material to
the proper exercise of his
discretion. Relying on the decisions of
this Court in
Johannesburg
Stock Exchange and Another v Witwatersrand Nigel
Ltd and Another
1988 (3) SA 132
(A) at 152 and
Hira
v Booysen
1992 (4)
SA 69
(A) at 84 and 93, they contended that the first respondent
failed “to apply his mind to the relevant issues in accordance
with the behests of the statute and the tenets of natural justice”.
They accordingly argued that the third warrant of arrest
was
improperly issued and accordingly invalid. These submissions, which
were also advanced before the Court
a
quo
, were rejected
by Heher J for the following reasons:
“
It seems to me that the
learned Judge of Appeal speaking for the majority was saying that the
magistrate to whom an application
under section 5(1)(b) is made,
exercises his discretion properly not merely by satisfying himself
that the jurisdictional requirements
of that section have been
satisfied, but also by being awake to any facts which might render
the authorisation of the warrant an
abuse of the powers conferred on
him, as for example that the application is being launched without
adequate grounds for believing
that the evidence necessary to justify
the issue of an order for committal will be forthcoming within a
reasonable time of the
arrest of the suspect pursuant to the warrant
which is applied for. However, the fact of previous arrest and
detention (even
of substantial length) would, as the learned Judge’s
analogy with arrests in ordinary criminal cases makes clear, not
per
se
constitute such
an abuse where the necessary evidence is immediately available. That
availability lay at the heart of the application
before the first
respondent. That was the point of obtaining the supplementary
affidavits which were furnished to the first
respondent (albeit that
he was not in terms so informed).”
He
proceeded to point out that there had been placed before the first
respondent, in addition to the original documents which had
been
found to be defective by the magistrate who had discharged the
appellant on 22 November 1990, certain supplementary affidavits
which
clearly overcame the technical objections which had previously been
upheld and that the information placed before first respondent
was
clearly sufficient to justify the exercise of his powers under
section 5(1)(b) of the Act.
[22] The
point raised by the appellant’s counsel regarding the alleged
unexplained delay was dealt with as follows:
“
The magistrate could not but have been
satisfied that the evidence was immediately available. I do not
agree with the submission
of applicant’s counsel that it was
necessary for the State to explain the ‘delay’ in
applying for the third warrant
of arrest. The applicant had not
been detained since the previous warrant was discharged. . . . [T]he
treaty and the legislation
are directed to protecting liberty. That
was not in issue here. The failure of the State to place before the
magistrate information
concerning the applicant’s previous
arrests and discharge was accordingly not a factor which the first
respondent needed
to take into account once the evidence was
complete. Disclosure would only have been relevant to the extent
that the reason for
the previous discharge had not been overcome by
the time that the application was made to the first respondent. The
irregularity
(if such it was) in failing to apprise him of the
history, was one without substance.”
[23]
In the view that I take of the case the so-called “delay”
was not relevant to the point as to whether the warrant
was invalidly
issued. It is relevant, however, in regard to the second point
argued and I shall accordingly deal with it
when I consider the
appellant’s argument that an indefinite stay should have been
granted.
[24] As
I see it, the only point to be considered at this stage is whether
there was a material non-disclosure by the State such
as vitiated
the magistrate’s decision to grant the warrant. I have already
found that the State did not disclose the previous
applications and
the appellant’s discharge to the first respondent. In my
opinion if these facts had been disclosed to
the first respondent
they would not have affected his decision to grant a warrant. The
position would have been different if
the deficiencies had not been
rectified. If that had been so the first respondent would and
should have refused to grant the
warrant until satisfied that the
problems previously encountered had been rectified. But this had
already happened.
[25] There
was nothing in what had preceded the application for the third
warrant to justify the magistrate in coming to the conclusion
that
enough was enough and that the time had come to put his foot down
firmly and refuse the application. Indeed, if he had
done so I have
no doubt that the State could successfully have reviewed a refusal by
him to grant the warrant.
[26] In
my view Heher J correctly rejected the appellant’s counsel’s
contention that the third warrant should be set
aside.
The
application for an indefinite stay
[27] In
support of this prayer the appellant’s counsel submitted that
their client was entitled to the protection afforded
to accused
persons embodied in section 25(3)(a) of the Interim Constitution ,
which provided:
“
(3) Every accused person shall have the right to
a fair trial which shall include –
(a) the right to a public trial before an ordinary
court of law within a reasonable time after having been charged”.
[28] This
relief was argued before the second respondent who refused it on the
ground that section 25(3)(a) did not afford a right
to a person who
was the subject of extradition proceedings and that the section only
applied to persons charged with an offence
in the Republic and not to
a person such as the appellant who had not been charged and who was
the subject in this country of
extradition proceedings which were not
a trial.
[29] Heher
J did not agree with the second respondent on this point. In his
view a person subject to extradition proceedings
in this country was
entitled, while the Interim Constitution was in force, to invoke the
protection of section 25(3) (a) if able
to show that no trial had
taken place within a reasonable time of being charged.
[30] In view of the fact that I have
come to the conclusion that the appellant has not shown unreasonable
delay in this matter
such as to justify an indefinite stay, either
in terms of section 25(3)(a) of the Interim Constitution or section
35(3)(d)
of the Constitution, it is unnecessary for me to decide
whether the views of the second respondent on this point are to be
preferred
to those of Heher J. I shall assume in what follows that
the appellant is entitled, should the delay in disposing of her case
be unreasonable, to an order for an indefinite stay and that the
legal position in regard to the effect of delay in the case of
persons charged in the Republic with criminal offences, as expounded
by the Constitutional Court in
Sanderson
v Attorney General, Eastern Cape
1998 (2) SA 38
(CC) and
Wild
and Another v Hoffert NO and Others
[1998] ZACC 5
;
1998 (3) SA 695
(CC), applies in her case also.
[31] In
my opinion, in order to decide whether the period that has elapsed
since the appellant was first charged (which I am prepared
to assume
for present purposes took place when she was arrested on the first
warrant on 11 September 1990) was such that one can
say there has
been unreasonable delay, it is necessary to divide up the period to
see what occasioned the delay.
[32] The
first period to be considered is from 11 September 1990, when the
appellant was first arrested (and released on bail)
to 22 November
1990 when she was discharged. This was the period covered by the
first extradition enquiry in the magistrates’
court. It was
postponed thrice at the State’s request for it to obtain the
necessary evidence. I do not regard this period
as excessive or
unreasonable.
[33] The
period from 22 November 1990, when the appellant was discharged, to 8
November 1991, when she was arrested on the third
warrant, is
undoubtedly for the State’s account. Did it amount to
unreasonable delay? The appellant’s counsel contended
strongly that it did and they described it repeatedly in their
argument as an unexplained delay.
[34] I
do not agree that it can be so described. The delay is explained as
follows in an affidavit deposed to by Mr K M Attwell,
then the Acting
Attorney-General for the Witwatersrand Local Division:
“
Following on the finding by the magistrate, the
respondent proceeded to get the papers in order and to supplement the
papers with
the necessary further documentation. Further papers
were duly requested from the USA through diplomatic channels: this in
itself
is a time-consuming and lengthy process. Statements and
supplementary documents had then to be revised and further requests
made in order to settle such further documentation. A new warrant
was then issued for the arrest of the applicant on 7 November
1991 -
just less than one year from the date of the previous hearing on 22
November 1990.”
This
statement was not disputed and in the light thereof one cannot say
that the period of just under one year was inordinately
long nor that
there is any unexplained delay.
[35] Since the third warrant was
authorised and executed on 8 November 1991 approximately nine years
have elapsed. I have summarised
in paragraphs [7] to [17] above what
has taken place. Some of the time has been lost through the
appellant’s failure
to raise points of objection and file
papers earlier than she did. I am prepared to assume, however,
that the time which was
lost in this way was not inordinate. The
time from 10 December 1991 to 23 May 1995 was spent on an
unsuccessful plea of
res
judicata
, which,
though it ultimately failed, was held by two Judges of this Court to
be correctly raised. So again it would not be
fair to blame the
appellant for the time so used. Further time was spent on the
application for the referral of constitutional
issues and then the
attack on the warrant. In my view such delays as these were may be
described as systemic delays in our courts.
[36] Though
procedures exist for expediting the hearing of urgent matters and in
the process abridging ordinary limits and avoiding
delays, it is
common cause that neither the appellant nor the State availed
themselves of these procedures. Even in the case
of the present
appeal the representatives of the appellant, in the practice note
which accompanied their heads of argument, stated
that the appellant
was out on bail and that no special reasons existed for them to
request precedence on the roll. The appellant’s
counsel
submitted that the systemic delays were attributable to the third
respondent, the State, and not to the appellant.
[37] The topic of systemic delay was
dealt with by Kriegler J in the
Sanderson
case
supra,
at 56G - 57 B ( para [35] ) as follows:
“
The third and final factor I wish to mention is
so-called systemic delay. Under this heading I would place resource
limitations
that hamper the effectiveness of police investigation or
the prosecution of a case, and delay caused by court congestion.
Systemic
factors are probably more excusable than cases of individual
dereliction of duty. Nevertheless, there must come a time when
systemic
causes can no longer be regarded as exculpatory. The Bill
of Rights is not a set of (aspirational) directive principles of
State
policy – it is intended that the State should make
whatever arrangements are necessary to avoid rights violations. One
has to accept that we have not yet reached that stage. Even if one
does accept that systemic factors justify delay, as one must
at the
present, they can only do so for a certain period of time. It would
be legitimate, for instance, for an accused to bring
evidence showing
that the average systemic delay for a particular jurisdiction had
been exceeded. In the absence of such evidence,
courts may find it
difficult to determine how much systemic delay to tolerate. In
principle, however, they should not allow claims
of systemic delay to
render the right nugatory.”
[38] Heher
J held that he could not find that the systemic delay had been
anything other than reasonable within the context of
our legal system
as the workings of its procedures and courts were known to him.
[39] No
attempt was made by the appellant to show that the average systemic
delay for any particular jurisdiction, either the
Johannesburg
magistrates’ court or the Witwatersrand Local Division or this
Court, had been exceeded.
[40] I
am in agreement with the view expressed by Heher J that it is not
possible to find that the systemic delay encountered in
this case has
been anything other than reasonable in the context of our system.
Nor can it be found that the systemic delays
under consideration
here have rendered nugatory the appellant’s right to have her
trial begin and conclude without unreasonable
delay.
[41] Heher
J set out the factors to be worked into the balance of the respective
interests of the appellant and the State and the
conclusion to which
he came in the following passage in his judgment:
“
First, in excess of five years elapsed between
the alleged commission of the crime and the first attempt to
extradite the applicant
from the Republic. I am not, for the
moment, interested in why there was this delay; the fact is that it
took that long for the
law enforcement authorities of the United
States to catch up with the applicant. This initial delay is
important because the effect
of what followed cannot be considered
independently but must be seen as an exacerbation of an already
unsatisfactory situation.
Second, a further seven and a half years has passed
since the applicant was first arrested and the charge brought to her
attention.
Since the judgment of the second respondent, almost a
year and a half has been taken up by the present litigation.
Third, the lapse of more than thirteen years since the
critical events must of itself (and even without evidence on the part
of
the applicant) suggest very strongly that the fairness of the
trial will be materially adversely affected, in at least the
following
respects: the applicant’s recollection of events, the
tracking down of such witnesses for the defence as may survive, the
willingness of witnesses to testify, the recollection of those
witnesses and the procurement of real evidence.
Fourth, the absence of fault on the part of the
applicant in relation to the delay cannot be ignored. As to the
initial period,
there is no firm evidence one way or the other.
Thereafter, the applicant contributed nothing but acceptable steps
directed at
enforcing what, so she was no doubt informed, were her
legal rights. The major delay was occasioned by the appeals to this
Court
and the Supreme Court of Appeal. The judgment of the latter
indicates how very close she came to complete success.
Fifth, the degree of ‘fault’ on the side of
the State is limited to the initial period of about a year during
which
it was attempting to get the formalities of the extradition
application in order. Although there has been no explanation for
that delay, the facts of the matter speak, in some degree, for
themselves. While the authorities in the United States were, no
doubt, entitled to some degree of latitude in putting the
technicalities right, it is a matter for adverse comment that nothing
positive seems to have been done between November 1990 and August
1991, and little between August and November of that year.
Since
then the State has been ready to proceed but has been totally
frustrated by the (not unreasonable) exercise of the applicant’s
legal rights.
Sixth, the prejudice personal to the applicant arising
from the delay has been substantial. Since November 1990 the
applicant
has been released on bail. The conditions have been
onerous, involving regular reporting to the police. The disruption
of her
personal life while justifiable within reasonable limits as in
the case of any accused, has over the extended period of delay been
material. In her affidavit in support of her application before the
second respondent the applicant details the personal prejudices
suffered by her as follows:
‘
16. To date, I have thus been hounded within the
Republic of South Africa by the Government of the United States of
America for
a period in excess of five years, commencing on 11
September 1990. This has caused me personal and financial prejudice.
17 I have not been able to travel freely within the
Republic of South Africa, and have had my bail monies in the sum of
R30 000,00
tied up over various periods of time. I have also
been required to report regularly to the South African Police
Services and compelled
to request their permission to leave the
Gauteng area. This in turn has caused problems with my studies,
which were hampered
by these interruptions, and my ability to work.
I have been compelled to make a full disclosure of my situation to
various potential
employers and have thus foregone several career
opportunities.
18 This case has enjoyed vast media coverage, which has
had a detrimental effect on my personal life and career. I have
suffered
from stress, causing me endless sleepless nights and have
had to seek psychological assistance.
19 I have also suffered from severe migraine headaches,
which were blinding and incapacitating as a result of the stress of
this
recurrent application for my extradition. I have been
prescribed various prophylactic medication to assist me with my
migraines
and the stress. This in turn caused me digestive
problems, and I thus suffer from an irritable bowel syndrome which is
stress-induced.
20 My husband and I have made arrangements to adopt a
child, but due to this application for my extradition and the
uncertainty
of my future as a result thereof, we had to cease out
attempts to do so. I have been advised that, with increasing age,
the prospects
of succeeding in adoption proceedings diminish and that
it is unlikely that I will now be able to adopt a child.
21 I obtained a degree of Bachelor of Science in 1966
at the University of the Witwatersrand. I then went on to complete
my Bachelor
of Science Honours at the same university in 1968.
Thereafter I read for my Masters of Science in Mathematics at the
London University
in 1969. Despite the hinderance of these
continuing extradition proceedings, I obtained my Bachelor of Arts
Honours in Psychology
at the University of the Witwatersrand in 1991.
I then read for my Masters of Education Psychology at the very same
university
in 1993.
22 I am currently in private practice as an Educational
Psychologist and actively involved in community work and the
development
of psychotherapy in the Republic of South Africa in
general. I am also furthering my professional training by doing an
extra curricular
diploma in Integrative Psychotherapy and attending
various workshops that occur here by visiting psychologists and
psychiatrists.
23 I have not been able to realise my
full potential in training due to the restrictions on my mobility.
Inter alia
,
I was unable to attend a professional conference on child psychology
known as the ACCAPAC - Conference, which was held in Durban
during
June and July 1995. I have not even been able to take a vacation in
the Kruger National Park, due to objections by the
representatives of
the Government of the United States of America. I have now
requested permission to take a vacation in Plettenberg
Bay for three
weeks commencing Saturday 18 November 1995, and have been informed
that I will have to deposit a further amount of
R30 000,00 as
bail with the duration of my vacation, and report daily whilst on
vacation.’
It appears from the foregoing that
there are many and weighty factors in favour of assisting the
applicant if that can be done in
the context of fairness to both
parties. As emphasised by Kriegler J in
Sanderson
’s
case
supra
the length of elapsed time is obviously central to the inquiry (at
para 28).
Prima
facie
it is very
great. It seems however that there is one critical feature upon
which this aspect of the case must turn. At paragraph
33 of
Sanderson
’s
case Kriegler J said:
‘I would suggest that if an accused has been the
primary agent of delay, he should not be able to rely on it in
vindicating
his rights under section 25(3)(a). The accused should
not be allowed to complain about periods of time for which he has
sought
a postponement or delayed the prosecution in ways that are
less formal. There is, however, no need for the accused to assert
his
right or actively compel the State to accelerate the preparation
of its case. Provided he has genuinely suffered prejudice as
a
result of the State’s delay, he cannot be responsible for the
State’s tardiness.’
In this context, save for the initial
delay of eleven months, the State has been fully prepared to pursue
the application. That
it has not done so has been entirely due to
the tactics of the applicant (legitimate and without criticism though
there may have
been). In short, since November 1990 [
I
take it this is a misprint for 1991
]
the applicant has been almost the sole agent of delay. It is true
that much of the delay has been systemic in nature but all
(save for
the period from 11 January to 15 February 1996) has stemmed from the
actions of the applicant. I am unable to find that
the systemic
delay has been anything other than reasonable within the context of
the South African legal system as the workings
of its procedures and
courts are known to me. In these circumstances, the consequences of
delay, namely, the personal suffering,
restrictions on freedom
flowing from bail conditions and the problems inherent in the
preparation and presentation of a defence
at so great a remove in
time and place from the events of 1985 are likewise to be laid to the
applicant’s own charge. I
have read painstakingly the
judgment of Kriegler J with the view to finding, if I can, a route
fair to the interests of the State
which would enable me to
rationalise for the benefit of the appellant the delay in bringing
the extradition proceedings to finality.
I find, however, that the
way is barred by the applicant’s conduct. Any other conclusion
would in future hold out the
prospect to accused persons (whether in
extradition or trial proceedings) that if they are able, by the
employment of astute legal
advisers, legitimately to hold the State
at bay for long enough, they will eventually escape prosecution.
This is not a case
where the initial eleven month delay is sufficient
to cause me to find that that of itself is a violation of section
25(3)(a) which,
seen in the wider picture, justifies an order staying
further proceedings against the applicant under the Act. In the
result
I conclude that the objection of unreasonable delay is unsound
and that the applicant’s reliance upon section 25(3)(a) of
the
Constitution must be rejected.”
[42] Counsel
for the appellant submitted that Heher J erred in holding that a
large number of the delays were caused by the route
followed by the
appellant and that since November 1991 she had been almost the sole
agent of delay. It was contended that Heher
J erred because he had
in effect attributed systemic delay to the appellant.
[43] I do not read his judgment in
that way. But even if that is what he held, nothing turns on the
point in my view because,
as was clearly stated in
Sanderson,
supra,
at 57,
paragraph [35], systemic factors, at present, do not tend to justify
an indefinite stay unless an accused shows,
inter
alia
, that the
average systemic delay for a particular jurisdiction has been
exceeded (which is not the case here) or any other delay
is of such a
nature as to render the right nugatory (which for the reasons that
follow I do not consider happened in this case).
[44] What is important in this
regard is the nature of the relief claimed by the appellant, i e,
an indefinite stay, something
which, according to
Sanderson,
supra,
(at 58,
paragraph [38] ) is far-reaching and will seldom be warranted in the
absence of significant prejudice to the accused.
See also the
Wild
case,
supra,
at 708, paragraph [27], where it was said that in the absence of
trial prejudice claims for a stay of prosecution (which is in
effect
what the appellant seeks) “must fail unless there are
circumstances rendering the case so extraordinary as to make
the
otherwise inappropriate remedy of a stay nevertheless appropriate”.
No such extraordinary circumstances are, in my
judgment, present
in this case, so it becomes necessary to have regard to the question
whether trial prejudice is present here.
[45] The
trial prejudice relied on is summarised by Heher J in the passage
quoted above where he said that the lapse of 13 years
(now 15) since
the alleged conspiracy “suggest very strongly that the fairness
of the trial will be materially adversely
affected, in at least the
following respects: the applicant’s recollection of events,
the tracking down of such witnesses
for the defence as may survive,
the willingness of witnesses to testify, the recollection of those
witnesses and the procurement
of real evidence”.
[46] I
do not think the grounds of prejudice listed in the passage I have
quoted (on which the appellant’s counsel strongly
relied in
argument and to which they did not seek to add) are sufficient to
justify the far-reaching remedy of an indefinite
stay. At least
some of the handicaps from which the appellant will suffer may well
also render the prosecution’s task more
difficult, in
particular those relating to the availability fifteen years on, of
witnesses and their recollection of events.
Furthermore these
points which will all have a bearing on the question of proof beyond
reasonable doubt will be able to be brought
to the attention of the
jury with all the emphasis at the command of her legal
representatives.
[47] In
U
S v Trammell
133 F
3d 1343
, 1351 (10
th
Cir. 1998), a case in which an accused alleged that his due process
rights had been denied by delay in indicting him, Briscoe,
Circuit
Judge, with whom Toche and McKay, Circuit Judges, agreed, said:
“Vague and conclusory
allegations of prejudice resulting from the passage of time and the
absence of witnesses are insufficient
to constitute a showing of
prejudice. Defendant must show definite and not speculative
prejudice, and in what specific manner
missing witnesses would have
aided the defense.
United
States v Jenkins
,
[1983] USCA10 50
;
701 F. 2d 850
, 855 (10
th
Cir.) 1983.”
[48] I
am not sure that one need go so far as that in this case, but
something more than the factors listed in Heher J’s
judgment,
not backed by specific averments by the accused person in question,
is in my view required before the far-reaching remedy
of an
indefinite stay can be granted in a case such as this.
[49] In
my view also there is considerable force in Heher J’s
observation which I have already quoted that the grant of an
indefinite stay in a case such as this would hold out to accused
persons the prospect that they will eventually be able to escape
prosecution “if they are able, by the employment of astute
legal advisers, legitimately to hold the State at bay for long
enough”.
[50] In
the present case it is clear, as I have already pointed out, that
the State has been ready to proceed since November 1991
and the
delays since then have been occasioned by the steps taken by the
appellant. She may not be to blame for the bulk of
the delays since
then but neither is the State and the systemic delays are not such in
the circumstances as to warrant the granting
of an indefinite stay.
[51] Although a costs order was made
against the appellant in the Court below, as this case is in
substance a criminal proceeding
no cost order should have been made:
see
Sanderson,
supra,
at 60 H -61
B (paragraph [44] ) and
Harksen
v President of the Republic of South Africa and Others
2000 (2) SA 825
(CC) at 837 D (paragraph [30] ).
[52] The
following order is made:
The appeal is dismissed, save that the order in the High
Court directing the appellant to pay the costs of those proceedings
is
set aside.
____________________
I
G FARLAM.
HEFER JA
)
NIENABER
JA)
HOWIE
JA )
CONCUR
ZULMAN JA
)