THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 455/22
In the matter between:
RICCARDO PAOLO SPAGNI APPELLANT
and
THE ACTING DIRECTOR OF PUBLIC
PROSECUTIONS, WESTERN CAPE FIRST RESPONDENT
THE NATIONAL DIRECTOR OF
PUBLIC PROSECUTIONS SECOND RESPONDENT
THE MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES THIRD RESPONDENT
THE DIRECTOR-GENERAL,
DEPARTMENT OF JUSTICE AND
CORRECTIONAL SERVICES FOURTH RESPONDENT
THE MINISTER IN THE DEPARTMENT
OF INTERNATIONAL RELATIONS
AND COOPERATION FIFTH RESPONDENT
2
Neutral citation: Spagni v The Director of Public Prosecutions, Western Cape and
Others (455/2022) [2023] ZASCA 24 (13 March 2023)
Coram: DAMBUZA ADP and MABINDLA-BOQWANA JA and MJALI,
CHETTY and SIWENDU AJJA
Heard: 23 November 2022
Delivered: 13 March 2023
Summary: Superior Courts Act 10 of 2013 – s 16(2)(a)(i) – order sought to declare
extradition request invalid having no practical effect or result – appeal moot –appeal
dismissed with costs.
ORDER
On appeal from: Western Cape Division of the High Court, Cape Town
(Allie J, sitting as court of first instance):
1 Leave to adduce further evidence is granted with no order as to costs.
2 The appeal is dismissed with costs, including costs of two counsel.
JUDGMENT
Mjali AJA (Dambuza ADP and Mabindla-Boqwana JA, and Chetty and
Siwendu AJJA concurring):
[1] The appellant , Mr Riccardo Spagni unsuccessfully sought, in the
Western Cape Division of the High Court, Cape Town (the high court) , to
review, set aside, and have declared as unconstitutional and invalid, the
Acting Director of Public Prosecutions, Western Cape ’s (ADPP) formal
extradition request to the United States of America (the USA) dated
21 September 2021. He a lso sought a declaration that the ADPP had no
authority to submit an extradition request to a foreign state on behalf of the
Republic of South Africa (South Africa). The application for review was a
sequel to a request submitted by South Africa to the USA for the extradition
of Mr Spagni for the continuation of his partly heard trial in the Regional
Magistrates Court, Western Cape Division, Cape Town (the regional court)
on charges of fraud.
4
[2] The basis for the challenge launched against the extr adition request
concerned a question of who had the authority to submit an extradition request
for a sought person to a foreign State on behalf South Africa. Mr Spagni is of
the view that that power is vested exclusively within the executive authority
who is the Minister of Justice and Correctional Services and not with the
National Prosecuting Authority (NPA), certainly not with the ADPP. In Mr
Spagni’s view, that power cannot be delegated.
Background
[3] Mr Spagni, was the subject of a provisional extradition request dated
21 September 2021 (the request), which was submitted by South Africa to the
USA. The request emanated from his failure to appear in the regional court on
several occasions leading up to 4 November 2020 for the continuation of his
trial. The reasons advanced by his legal representative for his non-appearance
were initially based on medical grounds , namely, that it was not in his best
interests to travel from his residence in Plattenberg Bay , (a di stance of
approximately 500 km) to Cape Town due to the Covid-19 risk. The matter
was then postponed to 24 March 2021 by agreement with his legal
representative, who intimated that Mr Spagni would consult his doctor as to
what protocol would need to be observed for his safety , both in travelling to
Cape Town as well as his attendance in court.
[4] It turned out that at the time his legal representative gave that indication,
Mr Spagni was in the USA . As a result, h e failed to appear in court on 24
March 2021. His lawyer had no ins tructions from him and did not know his
whereabouts and could not reach him on the phone. The trial was postponed
5
until 19 April 2021 in order for Mr Spagni to be traced. From the
investigations conducted following his failure to appear in court, it transpired
that Mr Spagni had a pplied for a non-immigrant visa to the USA on 28
September 2020 and was granted same on 7 October 2020.
[5] On 21 March 2021, just three days before the trial resumed, Mr Spagni
and his wife left South Africa for Bermuda, where they were quarantined for
a while and then proceeded to the USA on 14 April 2021. They settled in New
York and established two residences there. That period coincided with the
time Mr Spagni failed to attend court and through his lawyer , submitted
medical certificates in the regional court citing his inability to travel from his
residence in Plattenberg Bay to Cape Town.
[6] Mr Spagni was arrested by the US A authorities on 21 July 2021
following an application for his arrest that was transmitted by the South
African office of Interpol to its counterparts in the US in terms of Article 13
of the Extradition Treaty between the USA and South Africa (the treaty).1 He
was later released on bail with certain conditions , which included him being
fitted wi th a GPS monitor ; giving up his passport ; that he remain s in the
jurisdiction of the Middle District of Tennessee, Nashville Division; and that
he reports to the court as often as that court ordered.
[7] Mr Spagni launched an urgent application on 8 November 2021 in the
high court for the relief stipulated in paragraph 1 of thi s judgment . That
application was dismissed with costs on 6 April 2022. The appeal before us is
1 Article 13 of the Extradition Treaty concluded between the Republic of South Africa and the United States
of America on 16 September 1999.
6
against the whole of that judgment, with leave to appeal having been granted
by that court.
[8] At the hearing of this appeal the first and second respondents applied
in terms of section 19(1)(b) of the Superior Courts Act 10 of 2013 (the Act)
read with rule 11(1)(b) of the Supreme Court of Appeal Rules (the SCA rules)
for leave to adduce, by way of affidavit , further evidence of the intervening
developments subsequent to the granting of the order sought to be impugned.
The respondents contended that the evidence sought to be adduced was
material to this Court’s determination of the appeal as the order sought on
appeal would have no practical effect . Mr Spagni did not oppose the
application for the submission of further evidence but h eld the view that
despite such developments, the determination of the issues in this appeal
would have a practical effect or was in the interests of justice to determine
Legal framework
[9] In terms of s 19 (1)(b) of the Act, this C ourt has the power to receive
further evidence on appeal. The test for the admissibility of further evidence
on appeal is well -established. An applicant must meet the following
requirements. First, there must be a reasonably sufficient explanation, based
on allegations, which may be true, why the new evidence was not led in the
court a quo. The applicant must satisfy the court that it was not owing to any
remissness or negligence on his or her part that the evidence in question was
not adduced at the trial. Secondly, there should be a prima facie likelihood of
7
the truth of the new evidence . Thirdly, the evidence should be materially
relevant to the outcome of the case.2
[10] As to the question of mootness, the general principle is that an
application is moot when a court’s ruling will have no direct practical effect.
The reasoning behind this principle is that courts’ scarce resources must be
used to determine live legal disputes rather than abstract propositions of law.
Courts should refrain from giving advisory o pinions on legal questions that
are merely abstract, academic or hypothetical and have no immediate practical
effect or result.3
[11] Section 16(2)(a) of the Act provides that:
‘(i) When at the hearing of an appeal the issues are of such a nature that the decision sought
will have no practical effect or result, the appeal may be dismissed on this ground alone.
(ii) Save under exceptional circumstances, the question whether the decision would have
no practical effect or result is to be determined without reference to any consideration of
costs.’
[12] Mootness is not an absolute bar to the determination of issues on appeal.
There are instances where there have been exceptions to the provision and the
courts have exercised a discretion in a limited number of cases, where t he
appeal, though no longer present ing existing or live controversies , raised a
discrete legal point which required no merits or factual matrix to resolve.4 This
2 S v de Jager 1965 (2) SA 612 (A) at 613C – D, De Aguair v Real People Housing (Pty) Ltd [2010] ZASCA
67; 2011(1) SA 16 (SCA); [2010] 4 All SA 459 (SCA) para 11.
3 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC); 2000 (1)
BCLR 39 (CC) para 21; JT Publishing (Pty) Ltd and Another v Minister of Safety and Security 1997 (3) SA
514 (CC); 1996 (12) BCLR 1599 (CC) para 15.
4 Natal Rugby Union v Gould [1998] 4 All SA 258 (A).
8
Court may entertain an appeal, even if moot, where the interests of justice so
require.5
[13] The nature of the discretion has been described as follows:
‘It is a prerequisite for the exercise of the discretion that any order the court may ultimately
make will have some practical effect either on the parties or on others. Other factors that
may be relevant will include the nature and extent of the practical effect that any possible
order might have, the importance of the issue, its complexity and the fullness or otherwise
of the argument.’6
[14] As to how that discretion is to be exercised, the following is instructive:
‘This court has a discretion in that regard and there are a number of cases where,
notwithstanding the mootness of the issue as between the parties to the litigation, it has
dealt with the merits of an appeal. With those cases must be contrasted a number where the
court has refused to enter into the merits of the appeal. The broad distinction between the
two classes is that in the former a discrete legal issue of public importance arose that would
affect matters in the future and on which the adjudication of this court was required, whilst
in the latter no such issue arose.’7
Discussion
[15] The following transpired from the further evidence that was submitted.
Mr Spagni voluntarily and knowingly waived his extradition rights in terms
of Article 19 of the Treaty at the enquiry that was held on 25 May 2022 before
the Tennessee District Court. He is in South Africa on the strength of that
5 AB and Another v Pridwin Preparatory School and Others [2020] ZACC 12; 2020 (9) BCLR 1029 (CC);
2020 (5) SA 327 (CC).
6 Minister of Justice and Correctional Services and v Estate Late James Stransham-Ford and Others [2016]
ZASCA 197; [2017] 1 All SA 354 (SCA); 2017 (3) BCLR 364 (SCA); 2017 (3) SA 152 (SCA) para 22.
7 Centre for Child Law v Governing Body of Hoërskool Fochville & Another [2015] ZASCA 155; [2015] 4
All SA 571 (SCA); 2016 (2) SA 121 (SCA) para 11.
9
waiver for the continuation of his trial, which was set to continue on 3
November 2022 in the regional court.
[16] Against this evidence, the first and second respondent submitted that
the decision and the relief sought by Mr Spagni, will have no practical effect
or result as it has been overtaken by events. Further, that there is no longer a
live controversy between the parties.
[17] Counsel for Mr Spagni, on the other hand , argued that his waiver and
return to this country is inconsequential to the determination of the lawfulness
of the extradition request sent to the USA by the second respondent. Further,
that if the request was unlawful and invalid, it means that Mr Spagni’s waiver
was made on the basis of an unlawful and invalid extradition request , which
continues to determine the basis of his presence in South Afri ca and the
jurisdiction that may be exercised over him . Thus, it will have lega l
implications for Mr Spagni ’s ongoing criminal trial in that he may only be
prosecuted for the offences for which extradition had been successfully
sought. On that basis he submitted that the decision in this appeal will have a
practical effect and for that, he relied on the decision of this Court in the matter
of S v Stokes (Stokes).8 Another reason advanced is that the decision of this
Court will have a direct impact on similar matters. Accordingly, it is in the
interests of justice to determine the merits of this matter.
[18] Factually, there exists no live controversy between the parties. T he
determination of the issues in this matter will not have any practical effect,
8 S v Stokes [2008] ZASCA 72; [2008] 4 All SA 260 (SCA); 2008 (5) SA 644 (SCA); 2008 (2) SACR 307
(SCA).
10
considering that Mr Spagni is already back in the country for the continuation
of his fraud trial and that the orders sought were to have the request submitted
to the US A for his extradition, declared invalid and set aside. To declare
invalid and to set aside a request for the extradition of Mr Spagni in
circumstances where he himself waived his rights and returned to the country
would have no practical effect other than an abuse of court resources. Bearing
in mind that Mr S pagni was legally represented and fully cogn isant of the
implications of the unequivocal waiver of his rights under the extradition
treaty, it is not open to him to now challeng e the validity of the extradition
request. He could have challenged its validity during the enquiry that was held
inter alia for such purposes, but made a conscious decision not to do so.
[19] As regards the argument that the extradition request continues to have
legal implications for Mr Spagni ’s ongoing trial, it is essential f or a pr oper
consideration of that argument to quote the contents of Mr Spagni’s affidavit,
filed in support of his waiver of rights pertaining to extradition. They are as
follows:
‘AFFIDAVIT IN SUPPORT OF WAIVER OF RIGHTS
I, Riccardo Paolo Spagni a/k/a Ricardo Pa olo Spagni, having been fully informed by my
attorneys, Jonathan Farmer and Brian E. Klein, of my rights under the extradition treaty in
force between the United States and South Africa and 18 U.S.C § 3184-3196, do hereby
waive any and all such rights and ask the Court to expedite my return, in custody, to South
Africa.
My attorneys, with whose service I am satisfied, have explained to me the terms of the
extradition treaty in f orce between the United States and South Africa, the applicable
sections of Title 18 of the United States Code, and the complaint filed by the United States
Attorney in fulfilment of the United States Code, and the complaint filed by the United
States Attorney in fulfilment of the United St ates treaty obligations to the Government of
11
South Africa. I understand that pursuant to 18 U.S.C § 3184, I am entitled to a hearing at
which certain facts would need to be established, including:
-That currently there is an extradition treaty in force bet ween the United States and South
Africa;
- That the treaty covers the offences for which my extradition was requested;
-That I am the person whose extradition is sought by South Africa; and
-That probable cause exists to believe that I committed the offenc es for which extradition
was requested.
I admit that I am the individual against whom charges are pending in South Africa and for
whom process is outstanding there. I fully understand that in the absence of a waiver of my
rights, I cannot be compelled to return to South Africa unless and until a court in the United
States issues a ruling certifying my extraditability and the Secretary of State of the United
States issues a warrant of surrender.
I have reviewed the complaint and I fully understand my right t o a hearing at which my
counsel and I could challenge the extradition request presented by the Government of South
Africa. I hereby waive my rights under the extradition treaty and the applicable sections of
Title 18 of the United States Code, and agree to be transported in custody, as soon as
possible, to South Africa. I agree that the conditions of my bail will continue in this District
until the eve of the duly authorized representative of the Government of South Africa
departing South Africa to effectua te my transport to South Africa, at which time I will
surrender to the United States Marshal, as directed by the United States Government. No
representative, official, or officer of the United States or the Government of South Africa,
nor any other person whosoever, has made any promise or offered any other form of
inducement or made any threat or exercised any form of intimidation against me. I execute
this waiver of rights knowingly, voluntarily, and entirely of my own free will and accord.’
[20] Mr Spagni made an unequivocal waiver of his extradition rights.
Importantly when he waived such rights he stated that he fully understood his
right to a hearing at which he and his counsel could challenge the extradition
request presented by the government of South Africa. He fully understood the
12
charges for which the extradition was sought and that they related to the partly
heard trial in South Africa, for which he agreed to return for its continuation.
There is no complaint in this matter that Mr Spagni is prosecuted for any other
charges except those he is already was aware of , which was the case in the
Stokes matter. Therefore, the reliance on Stokes is misplaced as that matter is
distinguishable from this one on both facts and on issues.
[21] What remains to be determined is whether it is in the interests of justice
that this Court exercise its discretion and determine the issues raised on appeal
even though they no longer present live controversies. The question whether
it is in the interests of justice to hear the matter depends on many factors and
the discretion that the court must exercise in this regard must be according to
what the interests of justice require. The Constitutional Court endorsed the
following factors to be potentially relevant in the consideration of the exercise
of the discretion to hear a matter that no longer presents live controversies.
They are: the nature and extent of the practical effect that any possible order
might have; the importance of the issue; the complexity of the issue; the
fullness or otherwise of the argument advanced; and resolving disputes
between different courts.9
[22] Considering the factual basis on which this appeal has been founded
and the inescapab le fact t hat Mr Spagni , dul y represe nted and in full
cognisance of his rights, waived any challenge on the validity of the document
that he now seeks to have invalidated, the interests of justice simply do not
arise. Mr Spagni has also failed to make out a case for public interests in a
9 MEC for Education: Kwazulu-Natal and Others v Pillay [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2)
BCLR 99 (CC).
13
number of respects. The cases he relied on to advance the public interest point
either implicated rights which affected the wider society or required the higher
court to settle a complex legal issue of public importance or there were
conflicting decisions on the same issue.
[23] Mr Spagni could not articulate the nature of the right he wishes to assert
on behalf of the members of the public. When pressed on the issue, his counsel
submitted that the object was to vindicate the rule of law, an issue which was
in the public interest. That is however too broad an assertion to make. While
the case might raise an interesting legal debate, its factual context cannot be
ignored. Mr Spagni cannot wish away the fact that he voluntarily gave up his
own rights and elected to be brought to South Af rica and not challenge his
extradition. As to how that impacts other people and how he has an interest in
fighting a case for future litigants remains a mystery. It remained unclear as
to whether he wanted to assert a right to know if the request was valid or he
sought to vindicate the rule of law as he contended. No case for public interest
has been made out in the papers.
[24] In an attempt to bring this case within the considerations laid down in
the MEC for Education v Pillay 10and other judgments on this issue, counsel
for Mr Spagni directed us to the recent judgment of Schultz v Minister of
Justice and Correctional Services and Other 11, which he submitted made a
conflicting finding from that of the high court in this matter and accordingly
warrants this Court to settle the legal position . That argument loses sight of
10 MEC for Education v Pillay (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99
(CC) (5 October 2007).
11 Schultz v Minister of Justice and Correctional Services and Others (21/35658) [2022] ZAGPJHC 60 (11
February 2022).
14
the fact that Schultz is distinguishable from this one flowing from the
unequivocal waiver of rights, which Mr Spagni cannot wish away . On the
interests of justice aspect too, Mr Spagni has failed to make out a case and the
appeal falls to be dismissed . No argument was made as to how the issues in
this matter would impact on the general welfare of the public and why that
would warrant recognition and protection, bearing in mind Mr Spagni’s
conscious and unequivocal waiver of his rights.
[25] Finally, what was stated by this C ourt in Rand Water Board v Rotek
Industries (Pty) Ltd,12 demands repetition:
‘The present case is a good example of this Court’s experience in the recent past, including
unreported cases, that there is a growing misperception that there has been a relaxation or
dilution of the fundamental principle. . . that Courts will not make determinations that will
have no practical effect.’
[26] With regard to costs, I am of the view that although the appeal was
finally determined on the basis of mootness, the totality of the issues on appeal
did justify the employment of two counsel. In the result the following order is
made:
1 Leave to adduce further evidence is granted with no order as to costs.
2 The appeal is dismissed with costs, including costs of two counsel.
________________________
GNZ MJALI
ACTING JUDGE OF APPEAL
12 Rand Water Board v Rotek Industries (Pty) Ltd 2003 (4) SA 58 (SCA) para 26.
15
Dambuza ADP (Mabindla-Boqwana JA and Mjali, Chetty, Siwendu
AJJA concurring)
[27] I have read the judgment prepared by my colleague Mjali AJA. I agree
that the application for admission of further evidence should succeed with no
order as to costs, and that the appeal must be dismissed, with Mr Spagni,
paying the respondents’ costs. In this concurrence I discuss certain additional
points which I consider important for a proper appreciation of the issues
before us. And I too confine myself to the issue of mootness and make no
pronouncement on the merits of the appeal. I restate some of the background
to the extent necessary to underscore the importance of these issues.
[28] As set out in the first judgment, the appeal is against the order of the
high court, in terms of which Mr Spagni’s challenge to the extradition request
made from this country to the USA was dismissed. Mr Spagni holds dual
citizenship. He is a South African -Italian citizen. From 2011 he has been
facing criminal charges of fraud, forgery and uttering in the Cape Town courts
– first, in the Cape Town District Court and lat er in the regional court. The
amount involved is R1,5 million. His trial commenced on 22 August 2019.
[29] Following the onset of the Covid -19 pandemic and the country being
placed on national lockdown on 26 March 2020, Mr Spagni’s trial was
postponed on several occasions in his absence. He then failed to appear in
court on 24 and 25 March 2021, these being the dates on which the trial was
to proceed. It was later established that on 21 March 2021 he and his family
had travelled to Bermuda and thereafter to the USA on a non-immigrant visa,
which he had obtained on 7 October 2020.
16
[30] On 21 July 2021, he was arrested in Nashville, Tennessee, in the USA,
pursuant to a provisional arrest request from the South African office of the
Interpol made in terms of Article 13(1) and (2) of the Treaty.13 Following his
release on bail, a formal extradition request from South Africa reached the
USA on 23 September 2021. The request was initiated by the ADPP, Ms
Nicolette Bell , who is the applicant in the application to a dduce further
evidence. It was endorsed by the second respondent in that application, Ms
Shamila Batohi, the National Director of Public Prosecutions of South Africa
(NDPP). The Director General in the Department of Justice and Constitutional
Development14 (Department of Justice) had confirmed the designation and
authenticated Ms Bell’s signature. It was also certified by the consular at the
US Embassy in Pretoria in terms of Article 10(2) of the Extradition Treaty.
[31] During the intervening period , between 29 August 2021 and
24 September 2021, Mr Duncan Okes , who was Mr Spagni’s legal
representative at the time, wrote to the respondents advising that Mr Spagni
wished to return to South Africa voluntarily. In response, Mr De Kock of the
13 The article provides that:
‘1. In case of urgency, the Requesting State may, for the purposes of extradition, request the provisional
arrest of the person sought pending presentation of the documents in support of the extradition request. A
request for provisional arrest may be transmitted through the diplomatic channel or directly between the
Republic of South Africa Department of Justice and the United States Department of Justice. The facilities
of the International Criminal Police Organization (INTERPOL) also may be used to transmit such request.
The application may also be transmitted by post, telegraph, telefax or any other means affording a record
writing.
2. The application for provisional arrest shall contain:
(a) a description of the person sought;
(b) the location of the person sought, if known;
(c) a description of the offence(s);
(d) a concise statement of the acts or omissions alleged to constitute the offence(s);
(e) a description of the punishment that can be imposed or has been imposed for the offence(s);
(f) a statement that a document referred to in Article 9(3)(a) or Article 9(4)(a), as the case may be, exists; and
(g) a statement that the documents supporting the extradition request for the person sought will follow within
the time specified in this Treaty.
14 As the department was known at the time.
17
NPA advised that the Prosecution Authority had no role to play in Mr Spagni’s
election to return to South Africa and that only Mr Spagni or his legal
representative could waive the extradition proceedings which were pending
in the USA courts, and consent to be surrendered to South Africa by the USA
in terms of Article 19 of the Treaty.
[32] Mr Spagni’s wishes to return to South Africa were repeated in further
correspondence addressed by his legal representative to the Minister of Justice
and the Minister in the Department of International Relations and Co -
operative Governance (DIRCO). In their correspondence , Mr Spagni’s
lawyers also took issue with the lawfulness of the formal extradition request,
challenging the authority of the Directorate of Public Prosecutions, in
particular the ADPP, to launch same. They suggested that his return to South
Africa was analogous to the fruits of a forbidden tree.
[33] On 8 October 2021, Mr Spagni launched the review proceedings in the
high court. Therein he sought review of the extradition request on the basis of
illegality. The application was premised on the contention that the extradition
request was unlawfully submitted by the ADPP to the USA when the power
to execute undertakings contained in the Extradition Treaty vested only in the
executive authority of the country. Mr Spagni contended that the absence of
evidence of involvement of the Minister of Justice and the Minister in DIRCO
in the extradition process rendered the extradition request unlawful. He argued
that if he were to return to South Africa as a result of the unlawful extradition
process, the South African courts would have no jurisdiction over him.
18
[34] The ADPP and the NDPP denied that they acted beyond their powers.
They asserted that the information required under Art icle 4 of the Treaty
resided and could only be compiled by a prosecutor. They also argued that
their mandate to initiate requests for extradition is derived from s 20(1) (b)
read with s 24(1)(a) of the NPA Act and s 179(1)(b) read with s 179(2) of the
Constitution, which empower the prosecuting authority to execute functions
incidental to prosecution of criminal proceedings. In any event, so they
argued, the extradition request was submitted to the USA authorities with the
cooperation of functionaries in the Department of Justice and through DIRCO.
[35] The high court found, among other things, that the NDPP’s powers as
set out in s 179(2) of the Constitution include securing the attendance of an
accused at his or her trial as held in Kaunda and Others v Pre sident of the
Republic of South Africa and Others.15 Furthermore, the role of the Director-
General of the Department of Justice in extradition applications is that of a
Central Authority , the court held . Therefore, the presentation of the
application to the Director General by the ADPP was not irregular. The court
highlighted the acknowledgement by the ADPP in the extradition request that
the final authority of the NPA resided with the Minister of Justice and held
that once the ADPP’s signature and capacity was authenticated in the
Apostille and the seal was placed thereon, and once the request to extradite
was submitted through the correct channels, it became one submitted on
behalf of South Africa. The preamble by the ADPP conveying the
compliments could no t displace her express acknowledgement of the
Minister’s authority over her own role.
15 Kaunda and Others v President of the Republic South Africa and Others 2005 (4) SA 235 (CC); 2004 (10)
BCLR 1009 (CC) para 31.
19
[36] In this Court, the application for admission of further evidence relates
to events that occurred subsequent to the judgment of the high court having
been handed down. These events are not in dispute. To this extent, Mr Spagni
did not oppose the application. He undertook to abide by the decision of this
Court in respect thereof. Based on these events, the respondents contended
that the challenge to the extradition pr ocess was moot, as a decision thereon
would be of no practical effect. Mr Spagni disputed this contention and
insisted that there remai ned a live issue for this Court to decide. It was also
submitted on his behalf that as a matter of principle, he has a right to a decision
on the lawfulness of the extradition request, and further, that it is in the interest
of justice that the issue be determined by this Court.
[37] The events sought to be incorporated into the evidence already on
record are the following. On 25 May 2022, at the extradition enquiry before
the Tennessee District court , Mr Spagni formally waived his extradition
rights, in accordance with Article 19 of the Treaty. The article permits
surrender by the requested state, of the person sought to be extradited, without
(further) extradition proceedings, if that person consents to the surrender. It
provides that ‘[i]f the person sought consents to be surrendered to the
Requesting State, the Requested State may surrender such person as
expeditiously as possible without further proceedings’.16
16 Section 19 of the Extradition Act 67 of 1962 provides that:
‘No person surrendered to the Republic by any foreign State in terms of an extradition agreement . . . shall,
until he or she has been returned or had an opportunity of returning to such foreign or designated State, be
detained or tried in the Republic for any offence committed prior to his or her surrender other than the offence
in respect of which extradition was sought or an offence of which he or she may lawfully be convicted on a
charge of the offence in respect of which extradition was sought . . ..’
20
[38] In his ‘affidavit of waiver of extradition’ filed for consideration at the
extradition hearing, Mr Spagni waived his right to an extradition hearing as
provided in § 3184 to § 3196 in Title 18 of the United States Code (U.S.C.).
Importantly, in that affidavit, Mr Spagni waived all his rights under the Treaty
and asked the court to expedite his return, in custody, to South Africa. He also
acknowledged therein that he understood that under 18 U.S.C. § 3184 he was
entitled to a hearing at which an inquiry would be held into whether, among
other things, the Treaty covers the offences of which he was charged, and
whether there was probable cause that he had committed the offences of which
he was charged.
[39] On t he basis of the waiver, the Tennessee District Court granted an
order that Mr Spagni’s conditions of bail would continue until his surrender
to the US Marshal for delivery and transportation to South Africa. Following
all these processes, Mr Spagni returned to South Africa.
[40] Once he consented to his surrender to South Africa, the extradition
inquiry did not proceed any further. All of this was not in dispute between the
parties. Mr Spagni contends however, that his waiver does not render the
appeal moo t. He insists that the waiver is inconsequential for purposes of
determining the lawfulness of the extradition request because it was made ‘on
the basis of an unlawful extradition and invalid extradition request’. In
addition, he insists that his legal interest in the determination of the lawfulness
of the extradition request constitutes a ‘l ive controversy’ in the appeal.17 His
counsel submitted that it is in the interests of justice that the merits of the
17 Pheko and Others v Ekurhuleni Metropolitan Municipality [2011] ZACC 34; 2012 (2) SA 598 (CC); 2012
(4) BCLR 388 (CC) para 32.
21
appeal be determined because the issues therein are of importance for future
extradition requests by this country, particularly the correct repository of the
power to make extradition requests. He furthermore submitted that the act of
state doctrine prevented him from challenging the extradition request in the
USA.
[41] For his first contention, Mr Spagni relied on the judgment of this Court
in Stokes.18 In that case, Mr Stokes returned to South Africa pursuant to
waiving an extradition hearing in the US A subsequent to his arrest on a
provisional arrest request by this country. The provisional request set out a
charge of theft on which Mr Stokes was to be prosecuted in South Africa.
Having found that the additional charge of fraud had not been an offence for
which Mr Stokes’ extradition had been sought, this Court held that he could
not be prosecuted on that charge in this country, as the State sought to do,
because it had not formed part of the provisional arrest request to which his
waiver related.
[42] The analogy that Mr Spagni seeks to draw from Stokes is that his waiver
did not nullify his extradition request. He could therefore still challenge the
validity of the request. The two cases are not comparable. First, it is important
to note that, unlike Mr Stokes, Mr Spagni contests the final extradition request
rather than the request for provisional arrest. Further, Mr Spagni does not rely
on a difference in the substance of the extradition request and the charges
against him at the trial, as was the case in Stokes. There is no suggestion that
18 S v Stokes [2008] ZASCA 72; [2008] 4 All SA 260 (SCA); 2008 (5) SA 644 (SCA); 2008 (2) SACR 307
(SCA).
22
he was misled about what charges he would be confronted with on his return
to South Africa. In addition, the purpose of the waiver was achieved. The
extradition proceedings were stopped and Mr Spagni was repatriated based on
his consent to surrender. It is also important that Mr Spagni consented to
surrender with full knowledge of the suggested unlawfulness of the
extradition request as he had raised it, through his attorneys, in earlier
correspondence to the South African authorities. Against this background his
belated contention that the waiver is a nullity is contrived.
[43] This case is also distinguishable from Pheko19 a decision of the
Constitutional Court on which Mr Spagni relies. In Pheko the conduct of the
municipality had caused t he displacement of the respondents from their
homes. In this case it was Mr Spagni’s own conduct, through the waiver and
consent to surrender , that resulted in his repatriati on to South Africa. The
extradition process was interrupted by the waiver. The waiver remains valid
and Mr Spagni’s return to the Republic pursuant thereto rendered this appeal
moot. There is no live controversy between the parties.
[44] Are there interests of justice considerations which militate in favour of
deciding the merits of th e appeal? I do not think so. In this regard too Mr
Spagni’s contentions and the submissions made on his behalf were strained.
His counsel was hard pressed to articulate the nature and substance of interests
of justice sought to be advanced in this case, which would be of benefit in the
resolution of disputes of this nature, in the future. This appeal turns on its
19 See footnote 17 above.
23
peculiar facts. It is distinguishable from Pillay.20 In that case , the
Constitutional Court decided the merits of the appeal because the matter raised
vital questions about the extent of protection afforded to cultural and religious
rights ‘in the school setting and possibly beyond’. The potential effect on other
learners of the decision taken by the school to prohibit the wearing of nose
studs at school was manifest.
[45] Similarly, in AB and Another v Pridwin Preparatory School and
Others,21 the Constitutional Court found that important and complex legal
questions about the constitutional rights of learners in private schools under s
28(2) and 29(1)(a) of the Constitution were raised, and that the relief sought
by the applicants in that matter would have a broad practical effect. In that
case, there was evidence that the use of a school contract cancellation clause
had spread to many schools which had the effect of negatively impacting the
rights of children to basic education.
[46] Under s 16(2)(a) of the Superior Courts Act 10 of 2013 (the Act), this
Court has discretion in appeals involving, for example, matters of law that are
‘likely to arise frequently’ and to hear and pronounce on the merits thereof.
As this Court held in Premier van die Provinsie Mpumalanga en ‘n Ander v
Stadsraad van Groblersdal,22 the question is whether the judgment in the case
before the court will have a practical effect or result and not whether it might
be of importance in a hypothetical future case.
20 MEC for Education, KwaZulu-Natal and Others v Pillay [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008
(2) BCLR 99 (CC).
21 AB and Another v Pridwin Preparatory School and Others [2020] ZACC 12; 2020 (9) BCLR 1029 (CC);
2020 (5) SA 327 (CC).
22 Premier van die Provinsie Mpumalanga en ‘n Ander v Stadsraad van Groblersdal 1998 (2) SA 1136
(SCA).
24
[47] The present matter is also distinguishable from cases such as Sebola
and Another v Stan dard Bank of South Africa Ltd and Another (Sebola)23,
which Mr Spagni also seeks to rely on. In Sebola, the Constitutional Court
decided that it was in the interests of justice to hear the matter for a number
of reasons including that, the Sebola ’s had not withdrawn their application,
even though the Bank had abandoned the judgement that had been granted in
its favour. There were numerous conflicting decisions on the question whether
the provisions of s 129 of the National Credit Act 34 of 2005 req uires that a
debtor actually receives the prescribed written notice before a credit provider
institutes an action, and the issue arose frequently in our courts.
[48] Finally, the appellant failed to show that a decision in this case was
necessary to settle an uncertainty arising from the judgment of the high court,
Pretoria in Schultz. 24 In that case the court found that the prosecuting authority
‘is the authorised authority to decide whether a request for the applicant’s
extradition from the USA shou ld be made’. First, I highlight that in
appropriate circumstances t his court will decide the question of the correct
repository of power for submission of extradition requests to another country.
Furthermore, it appears to me that the issue of a lawful ‘initiator’, to which
the finding in Schultz relates, may be different from the determination of the
lawful ‘requestor’ of, or ‘applicant’ for an extradition request. Consequently,
a decision on the merits of this appeal might not settle the uncertainty that is
said to arise from Schultz.
23 Sebola and Another v Standard Bank of South Africa Ltd and Another (CCT 98/11) [2012] ZACC 11; 2012
(5) SA 142 (CC); 2012 (8) BCLR 785 (CC).
24 Schultz v Minister of Justice and Correctional Services and Others , Case no 2804/2022 , 21 November
2022 (unreported).
25
[49] For all these reasons, I agree that the appeal must fail.
________________________
N DAMBUZA
ACTING DEPUTY PRESIDENT
26
APPEARANCES
For appellant: A Katz SC and K Perumalsamy
Instructed by: Hanekom Attorneys Inc, Cape Town
Webbers, Bloemfontein
For first and second respondents: I Jamie SC and L Stansfield
Instructed by: The State Attorney, Cape Town
The State Attorney, Bloemfontein.