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IN THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE DIVISION, KIMBERLEY
CASE NUMBER : CA&R 66/2023
Reportable: YES / NO
Circulate to Judges: YES / NO
Circulate to Regional Magistrates: YES / NO
Circulate to Magistrates: YES / NO
In the matter between:
C[...] A[...] L[...] -S[…] APPELLANT
and
THE STATE RESPONDENT
Neutral citation: Lewis -Springfield v The State (CA&R 66/2023 [2025] 17 April
2025.
Coram: Tlaletsi JP et Stanton J
Heard: 17 March 2025
Delivered: 17 April 2025
Summary: Crim inal appeal against the finding of the magistrate court in an
extradition enquiry - whether the offence for which the appellant’s extradition is
sought is an extraditable offence - whether there is sufficient evidence upon which
the appellant can be prosecuted in the United States of America - section 10 of the
Extradition Act – appeal dismissed.
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ORDER
___________________________________________________________________
1. The appeal is dismissed .
JUDGMENT
_______________________ ____________________________________________
Stanton J
Introduction:
[1] This is an appeal against the finding of the Upington Magistrates’ Court that
the appe llant was liable to be extradited in terms of section 10(1) of the
Extradition Act 67 of 1962 (“the Act”) , more specifically the findings that:
1.1 The offence for which the extradition is sought , is extraditable in terms
of the Act; and
1.2 There is sufficient evidence to warrant the prosecution of the offence in
the United States of America (“the USA”).
Relevant background:
[2] In terms of a custody order granted by the Milwaukee County Circuit Court on
20 September 2021 (“the custody order”) , the appellant and the biological
mother, N[...] M[...] , have joint custody and shared placement of the minor
children, M[...] [...] L[...] and M[...] [...] L[...] (“the minor children”) . The custody
order provides that the parties shall have two non -consecutive one-week
blocks of vaca tion per year on condition that 60 days written notice is given,
and if travelling , an itinerary is provided. The appellant has two other children,
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one who has reached the age of majority and a minor daughter, A[...] [...] L[...] ,
of whom he has primary placement.
[3] The appellant and his four children are USA citizens . He came to this country
towards the end of October 2021 on a visitor’s visa that expired on 29 January
2022. He brought his 4 children with him , without giving the mother the
required 60 days ’ written notice or providing her with an itinerary in terms of
the custody order .
[4] In terms of the custody order , the appellant had to return the minor children to
their mother on 03 November 2021 at 14h00, which he failed to do. The
mother consequently reported the matter to the USA authorities , and the
appellant was sought on allegations or charge s of International Parental
Kidnapping .
[5] The U SA Department of Justice made a request to the South African
Department of Justice to assist in the arrest and extradition of the appellant .
On 01 February 2022 , the Pretoria Magistrate’s Court authorised and issued a
warrant for the arrest of the appellant , and he was subsequently arrested on
16 March 2022 in Upington, Northern Cape.
[6] The magistrate conducted and finalised the enquiry in terms of section 10 of
the Act on 22 September 2023 and determined that the offence the appellant
is charged with, namely the USA offence of international parental kidnapping
for which the appellant’s extradition is sought , is an extraditable offence; and
that there is sufficient evidence to warrant the appellant’s prosecution in the
USA.
Grounds of appeal:
[7] The grounds of appeal the appellant avers that the court a quo had erred
upon , can be distilled as:
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7.1 The finding that the USA offence of International Parental K idnapping
for which the appellant’s extradition is sought is an extraditable offence;
and
7.2 The finding that there is sufficient evidence (whether by way of
evidence or a certificate in terms of the Act to warrant the appellant’s
prosecution in the USA.
Applicable law:
[8] It is common cause that South Africa and the USA concluded an extradition
agreement; and that the USA in casu is a foreign and requesting State as
defined in section 1 of the Act.
[9] The Act determines the conditions that must be complied with in South Africa
before any person sought by a foreign State to undergo trial or serve a
sentence there can be surrendered to the requesting State for that purpose .
Moreover, the determination by the extradition magistrate as to whether the
person is liable to be surrendered is governed by the provisions of section 10
of the Act. Section 10 of the Act requires the magistrate to determine whether
the person is liable to be surrendered to the fo reign 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" .
[10] The following sections of the Act are applicable to this appeal:
10.1 Ss 9(1) and 9(4) of the Act stipulate that:
‘(1) Any person detained under a warrant of arrest or a warrant for
his further detention, shall, as soon as possible be brought
before a magistrate in whose area of jurisdiction he has been
arrested, whereupon such magistrate shall hold an enquiry with
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a view to the surrender of such person to the foreign State
concerned.
(4) At any enquiry relating to a person alleged to have committed an
offence —
(a) in a foreign State other than an associated State, the
provisions of section 10 shall apply;
(b) in an associated State —
(i) the provisions of section 10 shall apply in the case
of a request for extradition contemplated i n section
4(1) ; and
(ii) the provisions of section 12 shall apply in any other
case. ”
10.2 Section 10 of the Act, with regard to the enquiry where an offence is
committed in a foreign State, states that:
‘(1) If upon consideration of the evidence adduced at the enquiry
referred to in section 9 (4) (a) and (b) (i) the magistrate finds that
the person brought before him or her is liable to be surrendered
to the foreign State concerned and, in the case where such
person is accused of an offence, that there is sufficient evidence
to warrant a prosecution for the offence in the foreign State
concerned, the magistrate shall issue an order committing such
person to prison to await the Minister’s decision with rega rd to
his or her surrender, at the same time informing such person that
he or she may within 15 days appeal against such order to the
Supreme Court.
(2) For purposes of satisfying himself or herself that there is
sufficient evidence to warrant a prosecution in the foreign State
the magistrate shall accept as conclusive proof a certificate
which appears to him or her to be issued by an appropriate
authority in charge of the prosecution in the foreign State
concerned, stating that it has sufficient evidence at its disposal to
warrant the prosecution of the person concerned.
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(3) If the magistrate finds that the evidence does not warrant the
issue of an order of committal or that the required evidence is
not forthcoming within a reasonable time, he shall discharge the
person brought before him.
(4) The magistrate issuing the order of committal shall forthwith
forward to the Minister a copy of the record of the proceedings
together with such report as he may deem necessary. ’
[11] To recap, t he crux of the appeal is:
11.1 Whether the offence for which the appellant’s extradition is requested is
an extraditable offence ; and
11.2 Whether there is sufficient evidence upon which the appellant can be
prosecuted .
Was there sufficient evidence for the appellant’s prosecution in the USA ?:
[12] During argument, Mr M R Mogwera, for the appellant , conceded that the court
a quo complied with the procedural aspects of the extradition enquiry. He also
acknowledged that there was sufficient evidence to warrant a prosecution in
the USA as the magistrate was entitled to accept as conclusive proof the
certificate issued by an appropriate authority in charge of the prosecution in
the foreign State concerned, if it confirms that there is sufficient evidence at its
disposal to warrant the prosecution of the person concerned.
[13] During the extradition enquiry, the section 10 (2) certificate , together with
annexures thereto, issued b y the Assistant United States Attorney for the
Eastern District of Wisconsin , was received by the court a quo as an exhibit.
[14] The Constitutional Court in Geuking v President of the Republic of South
Africa and Others (“Geuking”),1 confirmed that a magistrate who holds the
enquiry is obliged to accept as conclusive proof that there is sufficient
evidence to warrant a prosecution in the requesting State, on submission of a
1 2003 (3) SA 34 (CC) ; 2004 (9) BCLR 895 (CC); 2003 (1) SACR 404 (CC) para 31 .
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certificate to that effect by an appropriate authority in the foreign State [My
emphasis].
[15] From the record , it is clear that the court a quo correctly found that the section
10(2) certificate complies with section 10 of the Act and that there is sufficient
evidence upon which the appellant c ould be prosecuted . That disposes of the
first enquiry .
Extraditable offence:
[16] According to the appellant , there is no offence in South African Law that the
appellant committed that is equivalent to “ International Parental Kidnapping” ,
which meant that the finding of the court a quo was wrong, and the appeal
must be upheld. After initially persisting with this argument, Mr Mogwer a
conceded that the appellant’s failure to adhere to the custody order amounts
to an extraditable offence.
[17] For the purpose of this contention it is important to note that section 1 of the
Act defines an extraditable offence as:
‘Any offence which in terms of the law of the Republic and the Foreign State
concerned is punishable with a sentence of imprisonment or other form of
deprivation of liberty for a period of six months or more , but excluding any
offence under military law which is not also an offence under the ordinary
criminal law of the Republic and of such foreign State .’
[18] The offence which the appellant is facing in court in the USA is International
Parental Kidnapping , that is defined as:
‘(a) Whoever removes a child from the United States, or attempts to do so,
or retains a child (who has been in the United States) outside the
United States with intent to obstruct the lawful exercise of parental
rights shall be fined under this title or imprisoned for not more than 3
years, or both.
(b) As used in this section –
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(1) The term “child” means a person who has not attained the age of
16 year s; and
(2) The term “parental rights”, with respect to a child , means the right
to physical custody of the child –
(A) whether joint or sole (and includes visiting rights); and
(B) whether arising by operation of law, court order, or legally
binding agreement of the parties.
(c) It shall be an affirmative defence under this section that –
(1) The defendant acted within the provisions of a valid court order
granting the defendant legal custod y or visitation rights and that
order was obtained pursuant to the Uniform Child Custody
Jurisdiction Act or the Uniform Child Custody Jurisdiction and
Enforcement Act and was in effect at the time of the offense;
(2) The defendant was fleeing an incidence or patterns of domestic
violence; or
(3) The defendant had physical custody of the child pursuant to a
court order granting legal custody or visitation rights and failed to
return the child as a result of circumstances beyond the
defendant’s control , and the defendant notified or made
reasonable attempts to notify the other parent or lawful custodian
of the child of such circumstances within 24 hours after the
visitation period had expired and returned the child as soon as
possible .’
[19] The court a quo found dual criminality in , inter alia , sections 305(1)(q) and
305(6) of the Children’s Act 38 of 2005 (“the Children’s Act”).
[20] Section 305(1)(q) determines that a person is guilty of an offence if that
person contravenes or fails to comply with an order of a High Court, Divorce
Court in a divorce case and children’s court, issued in terms of the Children’s
Act, including section 153(6), or contravention of any condition contained in
such order. Section 305(6) provides for a fine or the imprisonment for a period
not exceeding 10 years, or to both imprisonment and a fine, if a person is
convicted of an offence in terms of section 305(1)(q) of the Children’s Act .
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[21] In dealing with Child Abduction, Chapter 17 of the Children’s Act gives effect
to the Hague Convention on International Child Abduction (“Hague
Convention”) .2 In combating parental child abduction, s ection 275 provides
that: ‘the Hague Convention on International Child Abduction is in force in the
Republic and its provisions are law in the Republic, subject to the provisions of
this Act. ’ Article 12 of the Hague Convention provides that, ‘where a child has
been wrongfully removed or retained in term s of article 3 and , at the date of
the commencement of the proceedings before the judicial or administrative
authority of the Contracting State where the child is, a period of less than one
year has elapsed from the date of the wrongful removal or retention, the
authority concerned shall order the return of the child forthwith. ’
[22] In Geuking (supra) , the Constitutional C ourt emphasised that :
‘In the determination of whether the offence is an extraditable offence the
magistrate would have to consider whether the evidence 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 s 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 s 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. ’3
2 S 274(a) of the Children’s Act .
3 Geuking Ibid fn 1, paras 39 -40.
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And further that:
‘ . . . 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 concerned 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 detail 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 the 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 knowledge or
expertise. ’4
[23] Professor CR Snyman describes the crime of kidnapping as “ consisting in
unlawfully and intentionally depriving a person of his or her freedom of
movement and/or , if such person is under the age of 18 years, the custodian s
of their control over the child.” 5 Thus, “a parent cannot commit the crime in
respect of his or her own child. Accordingly, if the father and natural guardian
of a child, having divorced his wife, removes the child from her care in order to
4 Geuking (Supra) paras 44 -45.
5 CR S nyman Criminal Law 6 ed (2014) at 471. ; See also SV Hoctor Snyman’s Criminal Law 7 ed
(2020) at 417 .
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keep her in his own care, he does not commit the crime. This is true even if
the court awarded the custody and control of the child to the mother. However,
this does not mean that the divorced father can with impunity remove a child
from the care of the mother to whom the court has awarded custody and
control, since by so doing he infringes a court order, and may be guilty of
contempt of court. ”6 [My emphasis].
[24] The conduct of the appellant in South African Law would therefore fall under
the definition of kidnapping or contempt of court or amount to the
contravention of s ection 305(1)(q) of the Children’s Act, which offence would
be punishable with a sentence of imprisonment for a period of six (6) months
or more. The evidence tendered in the enquiry shows that the appellant kept
the children at a secluded farm in Upington. Despite several requests fro m the
mother to him to disclose the exact location of the children, he refused to do
so. He furthermore denied the mother direct communications with the children.
It took a police operation to trace the whereabouts of the children whereafter
they were removed from his care and returned to their mother . This conduct
shows that he did not intend to return the children to their mother in the USA.
[25] It follows that the contention by the appellant that there is no extraditable
offence cannot be sustained .
[26] In the result , the following order is made:
1. The appeal is dismissed .
STANTON J
6 CR Synman Criminal Law Ibid at 473; see also SV Hoctor Snyman’s Criminal Law (ibid) at 419.
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I concur,
TLALETSI JP
On behalf of the appellant: Adv MR Mogwera
On instructions of: Legal -Aid SA
On behalf of the State: Adv A van Heerden
On instructions of: The NDPP