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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
/1) REPO RTABLE: N O
(2) O F INTERES T TO OT--ER Ul?GES: NO'
(3) f EVISED: YES
L,{8l~D"i-'S .......................... ..
DATE SIGNATU RE
In the application between:-
RICHARD JOHN PAYNE
and
THE DIRECTOR OF PUBLIC PROSECUTIONS,
GAUTENG LOCAL DIVISION
THE NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
THE MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
THE DIRECTOR-GENERAL : DEPARTMENT OF
JUSTICE AND CONSTITUTIONAL DEVELOPMENT
THE MINISTER OF INTERNATIONAL RELATIONS
AND COOPERATION
Case No: 2024/080260
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Delivered: This judgment was handed down electronically by circulation to the
parties' legal representatives by email. The date for the handing down of the
judgment shall be deemed to be the date upon which it is circulated.
JUDGMENT

12
LG KILMARTIN, AJ:
A. INTRODUCTION:
[1] The applicant, Richard John Payne (hereinafter referred to as "the
applicant" or "Mr Payne"), seeks an order reviewing and setting aside and
declaring as unconstitutional and invalid, a request for his extradition from the
United Kingdom made by the first respondent, the Director of Public
Prosecutions, Gauteng Local Division (referred to below as "the first respondent"
or "the OPP ") on 26 September 2022 ("the extradition request"). Mr Payne's
application is referred to below as "the review application".
[2] Mr Payne seeks the relief on the basis that the OPP had no power to
make an extradition request to a foreign state. He relies, in this regard, on the
Supreme Court of Appeal ("SCA") judgment in Schultz v Minister of Justice1
("Schultz SCA ") which was handed down on 23 May 2024.
[3] The OPP and the second respondent, the National Director of Public
Prosecutions ("the NDPP "), collectively referred to below as "the NPA
respondents", brought an application for leave to appeal Schultz SCA on 17
September 2024 which is still pending before the Constitutional Court ("Schultz
CC "). The Court was advised that Schultz CC was filed three and a half months
out of time and, hence, an application for condonation was also brought by the
NPA respondents in the Constitutional Court. As will be explained below, the
(76/2023) [2024] ZASC A 77 (23 Ma y 2024).

13
late filing of the application for leave to appeal has the consequence that the
decision of Schultz SCA stands.
[4] In response to Mr Payne's application, the NPA respondents applied to
stay the review application pending the outcome of Schultz CC.
[5] On 14 February 2025, the NPA respondents filed a notice of withdrawal
in Schu ltz CC.
[6] On 27 February 2024, the NPA respondents wrote to the Reg istrar of the
Constitutional Court advising that the notice of withdrawal had been served in
error given that they had erroneously overlooked the need to seek an order from
the Constitutional Court tempering the retrospective effect of the SCA 's order in
Schultz SCA. In that correspondence, the NPA respondents also stated that the
NDPP would file an explanatory affidavit confirming that the appeal wou ld be
pursued on a limited basis, i.e. only on the basis of whether the SCA 's order in
Schultz SCA was prospective and would not apply retrospectively.
[7] The review application and the stay application were argued on 18
March 2025 and I reserved judgment.
B. THE RULE 61.11 APPLICATION:
[8] On 2 May 2025 the applicant brought an interlocutory application in
terms of R ule 61.11 of the Legal Practice Council Code of Conduct for all Legal
Practitioners, Candidate Legal Practitioners and Juristic Entities ("the LPC

14
Code ") in order to place a judgment and the order of the United Kingdom's
King's Bench Division in the appeal of Richard John Payne v the Government of
the Republic of South Africa2 regarding a decision of the District Judge Robinson
("the District Judge") in an application under section 114 of the Extradition Act,
2003 ("the UK Extradition Act") which was handed down by Lord Justice
Dingemans and Mr Justice Choudhury on 30 April 2025 ("Payne UK').
[9] Rule 61.11 of the LPC Code provides as follows:
"61.11 After a hearing when judgment is awaited, a legal practitioner
shall not place before, or try to send to, a judicial officer any
further material of whatever nature, except by agreement
among representatives of all parties; provided that, if consent
is unreasonably withheld, the placing of such further material
may , in an appropriate case, be the subject matter of an
application to re-open the hearing to receive it or, if the further
material consists only of references to authorities which might
offer assistance to deciding a question, a legal practitioner
may address a request in writing to the judge's registrar or
equivalent court official to approach the judicial officer with an
invitation to receive the references."
[1 0] Although the NPA respondents initially refused to consent to the Payne
UK decision being provided to this Court, they subsequently filed a notice to
abide the Court's decision in the Rule 61 .11 application and, on 14 May 2025,
also filed a "supplem entary affidavif' attaching a copy of an application for leave
to appeal to the Supreme Court in the United Kingdom .
[2025) EWHC 1043 (Admin).

15
[11] A widely shared note was posted on Case lines on 14 May 2025
enquiring whether any further affidavit(s) would be filed in response to the
"supplementary affidavif', which was not responded to. Due to the lapse of time,
the Court accepts that the parties do not intend to file any further affidavits in the
Rule 61 .11 application.
[12] Having considered the papers in the Rule 61.11 application, I am of the
view that, although the judgment and application for leave to appeal in Payne
UK, do not directly impact on the issues to be decided by me , they are relevant
in that they have given this Court further relevant background facts which form
part of the context against which this matter must be adjudicated. I therefore
had regard to the aforesaid.
[13] Insofar as the costs of the Rule 61.11 application are concerned, I am of
the view that as Mr Payne and the NPA respondents placed additional relevant
matter before the Court after the hearing of the matter which was of assistance
to the Court, no order as to costs should be granted.
[14] Turning now to stay and review applications, the Court was advised by
counsel for the NPA respondents that they stand or fall by the stay application.
Put differently, if the stay application is refused, there is no answer by the NPA
respondents to the review application as the SCA 's decision in Schultz SCA
stands and is the law which must be applied.

16
[15] Before dealing with the merits of the stay and review applications, I
deem it necessary to deal with further relevant background facts which provide
additional context.
C. RELEVANT BACKGROUND FACTS:
[16] On 22 September 2022, the OPP made a request for Mr Payne to be
extradited from the United Kingdom to South Africa in order to face charges
relating to alleged racketeering, fraud, corruption and money laundering in South
Africa.
[17] It is common cause that the extradition request was not made by the
Minister of Justice but by the OPP. The OPP indicated that he was responsible
for matters incidental to instituting and conducting prosecutions in terms of
section 179(2) of the Constitution.
[18] It also appears that the Minister of Justice did not consider the
extradition request and his consent was not obtained when the request was
made .
[19] Mr Payne objected to the extradition request in the United Kingdom on
the basis that the OPP did not have the power to make it and, in response, the
OPP submitted a memorandum in which it contended that the Minister of Justice
plays no part in outgoing extradition requests.

17
[20] According to Mr Payne, the submissions made by the OPP in its
memorandum were the same arguments which were made in Schultz SCA and
these arguments were rejected by the SCA .
[21] Mr Payne's extradition hearing took place in the United Kingdom from 21
to 23 February 2024.
[22] On 14 March 2024, the District Judge ruled that Mr Payne should be
extradited to South Africa.
[23] On 7 May 2024, the Secretary of State of the United Kingdom ("the
Secretary of State") ordered that Mr Payne was to be extradited.
[24] The decisions of the District Judge and the Secretary of State precede
the date when Shultz SCA was handed down.
[25] The appeal against the District Judge's ruling as well as the decision of
the Secretary of State were heard in the High Court in London on 25 March 2025
and I refer to what is stated above in this regard as well as the pending appeal to
the Supreme Court of Appeal.
D. SCHULTZ SCA:
[26] As far as Schultz SCA is concerned, it specifically dealt with whether the
OPP had the power to submit an outgoing extradition request to a foreign
country (which, in that case, was the United States of America) and the H igh

18
Court held that the OPP had such power.3 The SCA disagreed and set aside the
High Court's judgment and order.
[27] In Schultz SCA, the SCA had regard to: (i) the Constitution; (ii) the
Extradition Act, 67 of 1962 ("the Extradition Act"); and (iii) International law in
reaching its decision.
[28] In this regard, the SCA found that:
3
4
[28.1] The Constitution vests the power in the Minister of Justice
because extradition engages the foreign affairs power in the
Constitution. In this regard, the following was stated in Schultz
SCA:4
"[32] A request for extradition by one State to another
necessarily operates at the international level. This must
apply in respect of both incoming and outgoing requests.
Implicitly, and consistent with international customary law
and the Constitution, both forms of request engage the
executive sphere of power. To hold, as the respondents
argue, that it is the NPA and not the executive that has
decision-making power in respect of outgoing extradition
requests would be contrary to established international law
principles: it wou ld accord to a non-executive domestic
organ of state, an executive function at a State-to-State
level. An intention so to depart from established
international law principles would require clear expression
Schultz v Minister of Justice and Correctional Services (2022/002804) (2022] ZAGPP H C
1141 (21 N ovember 2022).
Schultz SCA, para 32 at p 17.

5
6
19
in the Extradition Act. It cannot be implied simply from the
absence of express provisions according to the Minister's
decision-making powers in outgoing extradition requests."
[28.2] The Extradition Act vests the power in the Minister of Justice by
implication of the provisions governing incoming extradition
requests. In this regard the following was stated in Schultz
SCA:5
"[34] Quag liani thus confirms that under the Extradition
Act it is the executive that is empowered not only to
respond to an incoming request for extradition but also to
make an outgoing request. Importantly, the judgment
recognises that the absence, in the Extradition Act, of an
express power on the part of the executive to make an
outgoing extradition request does not signify an absence of
that pow er. The executive power to make an outgoing
request is to be implied from the principle of reciprocity,
which lies at the very heart of extradition."
[28.3] International law makes it clear that the executive arm of the
government is empowered to engage w ith foreign states in the
international law community and the Minister of Justice is the
functionary who signs extradition treaties on behalf of South
Africa and he is the functionary responsible for performing all
acts necessary to give effect to the treaty.6
Schultz SCA , para [34] at p1 8.
Schultz SCA , paras [25] to [32], pp 14 - 17.

110
[29] As was correctly pointed out by counsel for Mr Payne, the SCA in
Schultz SCA applied the judgment of the Constitutional Court in President of the
Republic of South Africa and Others v Quagliani7 ("QuaglianP') where the
Constitutional Court held that the power to make an outgoing extradition request
vests in the executive. In this regard, the Constitutional Court stated, inter alia,
the following:8
"[44] The Act, read with other legislation such as the Criminal
Procedure Act, thus gives the executive branch all the required statutory
powers to be able to respond to a request for extradition from a foreign
state and for the executive branch to be able to request the extradition of
individuals who are in foreign states. It should be added that although
the power to request extradition to the Republic from a foreign country is
not expressly provided for in the Act, it is necessarily implicit in sections
19 and 20. Both deal with requests for surrender, and indeed, section 19
expressly envisages extradition being requested in terms of an
extradition treaty."
[30] Insofar as the doctrine of precedent is concerned, in Ruta v Minister of
Home Affairs9 the Constitutional Court stated the following:
7
8
9
"It was of course open to the Supreme Court of Appeal to reject its
own previous decisions, provided it concluded they were clearly
wrong . But the majority made no effort to explain why Abdi, Arse, Bula
and Ersumo were wrong or how. The Supreme Court of Appeal has
itself emphasised that respect for precedent, which requires courts
to follow the decisions of coordinate and higher courts, lies at the
heart of judicial practice. This is because it is intrinsically
2009 (2) SA 466 (CC).
Quagliani, para [44] at 485 B/C.
2019 (2) SA 329 (CC), para [21] at 343 E.

111
functional to the rule of law, which in turn is foundational to the
Constitution. Why intrinsic? Because without precedent, certainty,
predictability and coherence would dissipate. The courts would
operate without map or navigation, vulnerable to whim and fancy.
Law would not rule." (Emphasis added)
[31] Based on the doctrine of precedent, this Court is bound by the decisions
of Quagliani and Schultz SCA.
[32] In Schultz SCA , the Court ordered, inter alia the following:
"2. The order of the High Court is set aside and replaced with the
following:
'It is declared that only the [Minister of Justice and Correctional
Services] in his capacity as a member of the National Executive of
the Republic of South Africa, has the power to make an extradition
request for the extradition of the applicant from the United States of
America."'
[33] The order in Schultz SCA is clear and does not state that it should only
apply prospectively.
E. THE STAY APPLICATION
[34] It is trite that an applicant seeking the stay of proceedings must satisfy
the Court that there are "exceptional circumstances" that warrant the Court

112
depriving a party of their right to have a legal dispute resolved by a Court.10 Mr
Payne argues that the NPA respondents have not satisfied this test.
[35] The NPA respondents' case for a stay is based on /is alibi pendens.
[36] In Caesarstone Sdot-Yam Ltd v World of Marble and Granite 2000 CC
and Others11 ("Caesarstone"), the SCA , inter a/ia, held that a plea of /is alibi
pendens is based on the proposition that the dispute (/is) between the parties is
being litigated in the Court in which the plea is raised and that the policy
underpinning it is that there should be a limit to the extent to which the same
issue is litigated between the same parties and that it is desirable that there be
finality in litigation. The SCA further confirmed that the courts are also
concerned to avoid a situation where different courts pronounce on the same
issue with the risk that they may reach differing conclusions.12
[37] In Caesarstone, the SCA confirmed that:
[37 .1] The requirement of there being "the same cause of action" could
be relaxed if the circumstances justified doing so and that this
requirement would be relaxed in such an instance to require that
the central issue be the same in both proceedings.13
10 Western Assurance v Caldwell's Trustees 1918 AD 262 at 273.
11 2013 (6) SA 499 (SCA).
12 Caesarstone, para [2] at 502 FIG .
13 Caesa rstone, paras [21 ] to [22] and [24] at 508 Band 509 F/G .

113
[37.2] The requirement that the relief claimed had to be the same could
be relaxed where the circumstances supported doing so.14
[38] Insofar as the Court exercises its discretion to grant a stay, the following
was stated in Caesarstone15
"[36} In exercising its discretion considerations of fairness and
convenience are fundamentally important. I agree with Coetzee OJP in
Kerbel v Kerbel that once the requisites for a plea of /is pendens are
established the court should be inclined to uphold it, because it is
undesirable for there to be litigation in two courts over the same issue.
That was the approach of De Villiers CJ in Wolff NO v Solomon, when
he said:
'/ am not prepared to say that the plea of /is pendens in a foreign state
would be a good defence in every case in which the plea of res judicata
in such foreign state would have been a good answer. But I do hold that
the fact that a suit has been commenced by a plaintiff, and is still pending
in the Court of a foreign state having jurisdiction over the defendant,
affords, prima facie, a good ground for a plea in abatement to an action
instituted in this Court by the same plaintiff against the same defendant,
for the sam e thing, and arising out of the same cause, in the absence of
proof that justice would not be done without the double rem edy. "'
[39] In Nestle (South Africa) (Pty) Ltd v Mars Inc. ("N estle")16 the SCA
described the features of the plea /is alibi pendens as follows:
"The defence of /is alibi pendens shares features in common with the
defence of res judicata because they have a common underlying
14 Caes arstone, paras [21] and [22) at 508 B - 509 C.
15 Caesa rstone, para [36] at 513 I.
16 2001 (4) SA 542 (SCA ), para [16) at 548 I - 549 B.

114
principle which is that there should be finality in litigation. Once a suit
has been commenced before a tribunal that is competent to adjudicate
upon it the suit must generally be brought to its conclusion before that
tribunal and should not be replicated (tis alibi pendens). By the same
token the suit will not be permitted to be revived once it has been
brought to its proper conclusion (res judicata). The same suit, between
the same parties, should be brought only once and finally."
[40] In Ne stle17 the SCA also stated the following regarding the application of
tis alibi pendens:
"{17] There is room for the application of that principle only where the
same dispute, between the same parties, is sought to be placed before
the same tribunal (or two tribunals with equal competence to end
the dispute authoritatively). In the absence of any of those elements
there is no potential for a duplication of actions. In my view, none of
those elements is present in this case. Indeed, it is difficult to see how
they can exist where the matters in issue have been placed before two
quite different tribunals (as in this case), the one operating consensually
and the other by force of statute, each having its own peculiar functions,
powers and authority. For in such a case each tribunal will, by definition,
be inquiring into a ruling upon different matters, and neither will be
capable of ruling authoritatively on the issue that falls within the
competence of the other." (My emphas is)
[41] Mr Payne argues that:
[41.1] Lis alibi pendens cannot apply because the parties in Schultz
SCA and Schultz CC are not the same as the parties in Mr
Payne's review application and, although the courts have
17 2001 (4) SA 542 (SCA), para [17] at 549 B - 549 D .

115
extended the requirement there must be the same parties to
"privies", it has not done so where there is no connection
between the parties at all. Mr Payne also criticises the NPA
respondents for failing to cite the Minister of Justice or
Department of International Re lations and Cooperation
("DIRCO") Minister in the Schultz application.
(41.2] The NPA respondents' reliance on tis pendens is abusive and
they have not been candid with the Court. He further alleges
that it is inappropriate for an organ of state to vacillate in the
manner that the NPA has.
(42] According to the NPA respondents:
(42.1] This is a matter where tis alibi pendens should apply. In this
regard, the NPA respondents contend that Schultz SCA is
dispositive of Payne because the two cases turn on an identical
cause of action, i.e. that both extradition requests were issued
by the wrong member of the executive.
(42.2] There is a risk that two courts will reach different conclusions
and, specifically, a risk that this Court will grant the main
application on the strength of Schultz SCA, only for the
Constitutional Court to subsequently overturn Schultz SCA.
According to the NPA respondents not only would this Court's
judgment be inconsistent with the final decision of the

116
Constitutional Court but it would have afforded a wanted fugitive
an opportunity to escape facing justice in South Africa.
[42.3] Hearing the main application would also duplicate the burden on
the courts which should be avoided as both this Court and the
Constitutional Court would be devoting resources to answering
the same questions.
[42.4] There is a connection between the parties because both Payne
and Schultz include as parties (at least at the outset), the OPP ,
the NDPP , the Minister of Justice and the DIRCO Minister, albeit
that the DIRCO Minister and the Justice Minister are not
participating in the Schultz application because the DIRCO
Minister elected to abide and the Minister of Justice did not
appeal the decision. The NPA respondents argue that the mere
fact that Mr Payne is not cited as a party in Schultz cannot
defeat a plea of !is alibi pendens.
[42.5] The cases which discuss !is alibi pendens approach the matter
from a private law perspective, namely that they assume the
litigation brought by one party cannot be dispositive of the rights
of another, unrelated party. In this regard, the NPA respondents
contend that the Schultz and Payne matters involve questions of
public law. In this regard, the Court was referred to Ferreira v
Levin NO and Others; Vryenhoek and Others v Powell NO and

117
Others18 to support the argument that when one person_ litigates
a constitutional question to finality, the outcome is final not just
for him/her but for everyone else. It was submitted that the
Court should bear this in mind when assessing the
considerations of fairness and convenience.
[42.6] The NPA respondents have never vacillated and have,
throughout, accepted that if Schultz SCA stands in its current
form it would be dispositive of the merits of this matter.
[43] The highwater mark of the NPA respondents' case is that Schultz SCA is
dispositive of Payne, but the Constitutional Court "may yet establish a new test
or understanding of the relevant facts and law".
[44] In my view, having regard to the authorities referred to above, the stay
application cannot succeed. In this regard:
[44.1] The NPA respondents have not demonstrated "exceptional
circumstances" that warrant a stay.
[44.2] I agree with Mr Payne's argument that a stay application is not
ordinarily brought because a litigant desires the law to be
changed.
18 1996 (1) SA 984 (CC), para [229) at 1103 C ID -I.

118
[44.3] The Court was referred by Mr Payne's counsel to Mazibuko NO
v Sisulu and Others NNO 19 (" Mazibuko") where The Speaker of
the National Assembly ("the Speaker") sought to avoid the
determination of a legal dispute on the basis that the law
applicable was going to change. The Constitutional Court
rejected the argument of the Speaker and held that it had an
obligation to determine the dispute on the basis of the law that
existed and applied at the time.
[44.4] The Court was also referred by Mr Payne's counsel to
Amabhungane Centre for Investigative Journalism NPC and
Another v Minister of Justice and Others2° where this Court also
rejected the argument that a matter should not be determined
because the Minister of Justice believed legal change was
imminent. This Court (following Mazibuko) confirmed that it
must pronounce on such issues and not prevaricate.
[44.5] This Court is a High Court and is bound by the law as it stands
and as pronounced in Quagliani and Schultz SCA (particularly
bearing in mind that the application for leave to appeal was filed
late and the Schultz SCA decision stands).
[44.6] Insofar as fairness is concerned, it is not fair to stay matters in a
lower Court where binding precedents already exist in case a
19 2013 (6) SA 249 (CC), para 70 at 270 E - G .
20 2020 (1) SA 90 (GP ), paras 11 to 13 at p 7.

119
higher Court may change the law (which has already been
pronounced upon) at a later stage.
[44.7] The Court must take into account that this is not a case where
courts of equal standing are being requested to decide the same
issue and there is no risk that there will be conflicting decisions
in this regard. The highest Courts in the country have already
handed down judgments which are in line with one another and
which are binding on this Court.
[44.8] This is not a case where duplication of judicial resources is
taking place and the stay requested by the NPA Respondents
cannot be granted merely on the basis that the Constitutional
Court "may yet establish a new test or understanding of the
relevant facts and law."
[44.9] The NPA respondents have conceded that unless the
Constitutional Court finds that Schultz SCA has no retrospective
effect, it is dispositive of the main application.
[45] Having considered all arguments, I am of the view that the application for
a stay falls to be dismissed and do not see why costs should not follow the
result.
[46] Insofar as the Court was requested by Mr Payne to grant punitive costs
on the basis that: (i) he alleges the NPA has not been candid with this Court; and

120
(ii) the NPA respondents' version before the Constitutional Court differs from the
version before this Court - in this Court the NPA respondents sought to reserve
their right to argue that Schultz was factually distinguishable, while in the
Constitutional Court they accepted Mr Payne's relief in the review application
falls to be granted in light of Schultz SC . In this regard, the Court was referred to
MEC for Health, Eastern Cape and Another v Kirland Investments tla Eye and
Lazer lnstitute21
[47] I am of the view that there is nothing untoward about the approach
adopted by the NPA respondents or any indication that the stay application
constitutes an abuse of process. Hence , I am only inclined to grant costs on
party-and-party Scale C, such costs to include the costs of two counsel, one of
whom is a senior, where so employed.
F. THE REVIEW APPLICATION:
[48] Section 172 of the Constitution provides as follows:
"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
21 2014 (3) SA 481 (CC}, para [82] at 505.

121
(b) may make any order that is just and equitable,
including-
(i) an order limiting the retrospective 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."
[49] There is an obligation on the courts to make declarations of
constitutional invalidity which applies to law or conduct held to be inconsistent
with the Constitution. In Economic Freedom Fighters v Speaker of the National
Assembly and Others22 the following was stated in this regard:
22
"[103] Declaring law or conduct inconsistent with the Constitution and
invalid is plainly an obligatory power vested in this Court as borne out by
the word "must". Unlike the discretionary power to make a declaratory
order in terms of section 38 of the Constitution, this Court has no choice
but to make a declaratory order where section 172(1)(a) applies. Section
172(1)(a) impels this Court, to pronounce on the inconsistency and
invalidity of, in this case, the President's conduct and that of the National
Assembly. This we do routinely whenever any law or conduct is held to
be inconsistent with the Constitution. It is not reserved for special cases
of constitutional invalidity. Consistent with this constitutional injunction,
an order will thus be made that the President's failure to comply with the
remedial action taken against him by the Public Protector is inconsistent
with his obligations to uphold, defend and respect the Constitution as the
supreme law of the Republic; to comply with the remedial action taken
by the Public Protector; and the duty to assist and protect the office of
2016 (3) SA 580 (CC), para 103 at 619 FIG TO 620 A/B

122
the Public Protector to ensure its independence, impartiality, dignity and
effectiveness."
[50] It is clear from the above that the Court, in terms of section 172(1 )(a) of
the Constitution, must make a declaratory order where the section applies.
[51] For the reasons already explained, Schultz SC is clearly determinative of
the matter and therefore Mr Payne is entitled to the relief sought by him in
prayers 2 to 5 of the notice of motion.
G. ORDER:
In the light of what is stated above, I make an order in the following terms:
1. The first and second respondents' application to stay the proceedings is
dismissed;
2. The first and second respondents are ordered to pay the costs of the
applicant in the stay application, including the costs of two counsel, on
Scale C ;
3. The extradition request of the first respondent dated 26 September 2022
to the Government of the United Kingdom for the applicant's extradition
to South Africa ("the extradition request") is hereby reviewed and set
aside;

123
4. The extradition request is hereby declared to be inconsistent with the
Constitution of the Republic of South Africa, 1996 and invalid;
5. It is declared that the first and second respondents have no authority to
submit an extradition request on behalf of the Republic of South Africa to
the United Kingdom;
6. The first and second respondents are directed, jointly and severally, the
one paying the other to be absolved, to pay the costs of the review
application, such costs to include the costs of two counsel, on Scale C.
Date of hearing:
LG KILMARTIN
ACTING JUDGE OF THE HIGH COURT
PRETORIA
17 March 2025
Interlocutory application in terms of Rule 61.11: Brought on 2 May 2023
Date of judgment:
For the Applicant:
Instructed by:
For the First and Second Respondents:
Instructed by:
Final affidavit filed on 14 May 2025
4 August 2025
A Katz SC
K Peruma lsamy
Ian Levitt Attorneys
K Hopkins SC
D Simonsz
Office of the State Attorney, Pretoria