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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable / Not Reportable
Case no: A261/2024
In the matter between:
DIRECTOR OF PUBLIC PROSECUTIONS APPELLANT
WESTERN CAPE
and
DANIEL LOUIE RESPONDENT
Neutral citation: DPP v Louie (Case no A261/2024) [2025] ZAWCHC ... (191225)
Coram: SALDANHA, J and SLINGERS, J
Heard: 12 September 2025, Finalised 22 September 2025
Delivered:
Summary:
ORDER
1. The discharge of the respondent by the magistrate is set aside.
2. The respondent is found to be liable to be extradited to the United States of
America.
3. The re spondent is to be released on bail in the amount of R25 000 (twenty
five thousand rands) pending the decision of the Minister of Justice in terms of
section 10(1) and/or the Ministers decision in terms of section 11 of the Extradition
Act 67 of 1962 on the following conditions:
a. The Respondent must surrender all his passports to the Investigating
Officer.
b. The Respondent must report to the Gordon's Bay Police Station every
Friday.
c. The Respondent must remain in South Africa.
JUDGMENT
THE COURT
INTRODUCTION
[1] This is an appeal brought in terms of section 310(1) 1 of the Criminal
Procedure Act 51 of 1977 ( 'the CPA') read with section 310A2 against the discharge
of the respondent in an extradition enquiry by the Bellville magistrate's court.
[2] Prior to the hearing of the appeal the respondent formally sought condonation
for the late filling of his heads of ar gument. This application was unopposed and was
granted during the hearing of the appeal.
1 When a lower court has in criminal proceedings given a decision in favour of the accused on any
question of law, including an order made under section 85 (2), the attorney -general or, if a body or a
person other than the attorney -general or his represent ative, was the prosecutor in the proceedings,
then such other prosecutor may require the judicial officer concerned to state a case for the
consideration of the provincial or local division having jurisdiction, setting forth the question of law and
his dec ision thereon and, if evidence has been heard, his findings of fact, in so far as they are
material to the question of law.
2 (1) The attorney -general may appeal against a sentence imposed upon an accused in a criminal
case in a lower court, to the provinc ial or local division having jurisdiction, provided that an application
for leave to appeal has been granted by a judge in chambers.
BACKGROUND
[3] The respondent is a Canadian citizen and was originally resident in Canada,
relocated to Barbados in January 2012 whereafter he established a company that
distributed chemicals used in the manufacturing of synthetic cannabis and bath salts.
[4] Since about February 2011, the Drug Enforcement Administration of the
United States of America ('DEA') had been investigating the importation, distribution,
and use of designer drugs popularly known as 'bath salts' and synthetic marijuana.
'Bath salts' is an umbrella term for a class of designer drugs which contain inter alia
various synthetic cathinones which are classified as Schedule 1 Controlled
Substances or C ontrolled Substance Analogues under the U.S. Controlled
Substances Act.3 Synthetic marijuana is an umbrella term for synthetic cannabinoids
which are similarly classified as Schedule 1 Controlled Substances or as Controlled
Substance Analogues under the U. S. Controlled Substances Act. Under American
law it is illegal to import and to sell Schedule 1 Controlled Substances and Controlled
Substance Analogues.
[5] On 26 June 2013, the Barbados police conducted a raid on the premises of
the respondent. Prior to the raid, DEA agents had made undercover purchases from
the respondent. The respondent was informed that he was under investigation by the
DEA and that he was facing criminal charges in the United States of America ('the
USA'). The respondent was subsequently arrested and charged in Barbados.
[6] On 17 January 2014, the USA requested of the South African authorities the
provisional arrest of the respondent. This request was fulfi lled on 5 March 2014,
when the respondent was arrested at Cape Town International Airport in terms of
section 40(1)(k) 4 of the CPA). At the time of his arrest the respondent was in
3 Paragraph 6 of the affidavit deposed to by Brendan Quigley, v3, page 700
4 40 (1) A peace officer may without warrant arrest any person -
4 40 (1) A peace officer may without warrant arrest any person -
(k) who has been concerned in or against whom a reasonable complaint has been made or credible
information has been received or a reasonable suspicion exists that he has been concerned in any
act committed outside the Republic which, if committed in the Re public, would have been punishable
as an offence, and for which he is, under any law relating to extradition or fugitive offenders, liable to
be arrested or detained in custody in the Republic.
possession of a boarding pass for Barbados via London, Heathrow Internation al
Airport.
[7] On 6 March 2014, the respondent appeared in the Bellville magistrate's court
whereupon the matter was remanded to 7 March 2014 to allow the respondent an
opportunity to obtain legal representation. On 7 March 2014, the respondent's
attorney, Mr Mbazwana informed the court that he was not ready to proceed,
resulting in the matter being postponed to 11 March 2014 to afford Mr Mbazwana an
opportunity to consult with the respondent who, at that stage, was detained at
Ravensmead police station.
[8] On 11 March 2014, an application was made in terms of section 7 5 of the
Extradition Act 67 of 1962. During this enquiry, the appellant introduced, and the
court relied upon a statement by Petro Bekker from the National Department of
Health which stated that Buphedrone was listed as a Scheduled 7 substance in
terms of the Medicines and Related Substances Act 101 of 1965. The court ordered
the further detention of the respondent.
[9] On 12 March 2014 the respondent's legal representative requested that he be
released on bail. This request was opposed by the state, resulting in the matter
being postponed to 19 March 2014 for the holding of a formal bail applicat ion. On 31
March 2014, the respondent was released on bail in the amount of R100 000.00.
[10] On 2 May 2014 the USA requested the extradition of the respondent by way
of a diplomatic note. On 20 May 2014, the Minister of Justice and Constitutional
Development issued a notification in terms of section 5(1)(a)6 of the Extradition Act.
5 Warrants for further detention of persons arrested without warrant. -
(1) Any magistrate may issue a warrant for the further detention of any person arrested without
warrant under any law of the Republic providing for the arrest without warrant of persons liable to be
apprehended under any law relating to extradition.
apprehended under any law relating to extradition.
(2) Such a warrant for the further detention of any person may be issued upon such information
of his or her being a person accused or convicted of an extraditable offence committed within the
jurisdiction of the foreign State, as would in the opinion of the magistrate justify the issue of a warrant
for the arrest of such person, had it been alleged that he or she committed an offence in the Republic.
6 Any magistrate may, irrespective of the whereabouts or suspected whereabouts of the person to be
arrested, issue a warrant for the arrest of any person -
(a) upon receipt of a notification from the Minister to the effect that a request for the surrender of such
person to a foreign State has been received by the Minister
[11] The request for extradition was made in terms of sections 9 7 and 108 of the
Extradition Act. The magistrate informed the Minister of Justice and Constitutional
Development on 15 January 2015 in terms of section 8 of the Extradition Act.
[12] After the respondent was released on bail and during the period from 2014 to
2018, the extradition enquiry did not proceed as a result of the respondent's legal
challenge to the amendments to Schedule 7 of the Medicines and Related
Substances Act. On 24 November 2017 the magistrate's court was informed that the
respondent had abandoned his legal challenge and the extradition enquiry
commenced on 18 May 2018 before acting magistrate Godwan. The extradition
request was based on the following charges:
7 Persons detained under warrant to be brought before magistrate for holding of an enquiry. -
(1) Any person detained un der 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 a view to the surrender of su ch person to the
foreign State concerned.
(2) Subject to the provisions of this Act the magistrate holding the enquiry shall proceed in the
manner in which a preparatory examination is to be held in the case of a person charged with having
committed an off ence in the Republic and shall, for the purposes of holding such enquiry, have the
same powers, including the power of committing any person for further examination and of admitting
to bail any person detained, as he has at a preparatory examination so held.
(3) Any deposition, statement on oath or affirmation taken, whether or not taken in the presence
of the accused person, or any record of any conviction or any warrant issued in a foreign State, or any
copy or sworn translation thereof, may be received i n evidence at any such enquiry if such document
is-
8 Enquiry where offence committed in foreign State. -
is-
8 Enquiry where offence committed in foreign State. -
(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 bro ught 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 wait the Minister's decision with
regard 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 the 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 sufficie nt evidence at its disposal to warrant the
prosecution of the person concerned.
(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.
(i) count 1 - conspiracy to knowingly and intentionally import a controlled
substance, namely Buphedrone, an isomer of Mephedrone, into the United
States from on or about July 2012, up to and including in or about June 2013;
(ii) count 2 - conspiracy to knowingly and intentionally distribute and
possess with the intention to distribute a controlled substance, namely
Buphedrone, an isomer of Mephedrone, into the Uni ted States. This was for
the period from July 2012 up to and including in or about June 2013; and
(iii) count 3 - conspiracy to wilfully and knowingly commit money
laundering in connection with laundering the proceeds of drug trafficking
through an account in Panama and transmitting money into the United States
in furtherance of illegal dr ug trafficking in the period from about July 2012 up
to and including in or about June 2013.
[13] The enquiry was set to proceed on 7 December 2018, when the respondent
took a point in limine challenging the admissibility of the statement by Mr Brandon F
Quigley, an assistant United States District Attorney. On 22 February 2019, the
magistrate ruled that the statement was admissible in the application for the
respondent's extradition.
[14] In his statement Quigley stated inter alia that the respondent had f led
Barbados pending drug charges. This was denied by the respondent.
[15] Thereafter, the application's progress came to a halt. Magistrate Godwana no
longer sat at the Bellville magistrate's court and refused to return to the court to
continue the enquiry with which he was seized. He only returned to continue with the
enquiry on 29 March 2021, after being directed to do so by an order of court
following a special review in the Western Cape High Court.
[16] During the hearing of the enquiry, the appellant presented the evidence of
Colonel Westraat, a chemical expert assigned to the South African Forensic Science
Laboratory. Westraat's qualifications include a BSC degree from the University of
Laboratory. Westraat's qualifications include a BSC degree from the University of
Pretoria with chemistry and biochemistry and a higher diploma in analytical
chemistry from the Pretoria University of Technology and a MPhil degree in
Biomedical Forensic Science from the University of Cape Town. Westraat testified
that he was also a registered professional natural scientist at the Council for Nature
Scientific Professions in terms of section 23A of the National Scientific Professions
Act 17 of 2003. At the time of testifying, he had 34 years' experience in forensic
investigations of crime scenes.
[17] His evidence was that Buphedrone was a chemically related substance or
homologue that incorporates a structural fragment similar to Cathinone. As
Cathinone is listed in schedule 7 to the Medicines and Related Substances Act,
Buphedrone is per implication listed in Schedule 7
[18] This followed from the w ording of paragraph (vi) of the introductory part of
Schedule 7 provides that:
'All preparations or mixtures of such substances containing or purporting to
contain substances referred to in this Schedule include the following (unless
expressly excluded or unless listed in another Schedule):
(vi) all homologues of listed substances (being any chemically related
substances that incorporate a structural fragment into their structures that is
similar to the structure of a listed substance and/or exhibit pharmac odynamic
properties that is similar to listed substance in the Schedules), unless listed
separately in the Schedules.'
[19] Cathinone became listed under Schedule 7 of Act 101 of 1965 in Government
Notice 31387 of 5 September 2008. In 2012, the Minister of Health updated section
22A(2)9 of Act 101 of 1965 which updated Schedule 7 to include all homologues of
all listed substances.
[20] The enquiry was then postponed to 7 October 2022 for Colonel Westraat to
be cross examined and to afford the respondent an opportunity to consult with an
9 All preparations or mixtures of substances containing or purporting to obtain substances referred to
in this Schedule include the following ( unless expressly excluded or unless listed in Another
Schedule):..
(vi) all homologues of listed substances (being any chemically substances that incorporate a
(vi) all homologues of listed substances (being any chemically substances that incorporate a
structural fragment into their structure that is similar to the structure of a listed substanc e and/or
exhibit pharmacodynamic properties similar to the listed substance in the schedules), unless listed
separately in the Schedules.
expert. Although the respondent had an expert present for his cross examination of
Westraat, he did not formally appoint an expert and there was no expert evidence
presented on his behalf. On 7 Oc tober 2022, the appellant closed its case.
Thereafter, the matter was delayed for the respondent to consult with and obtain a
new legal representative.
[21] The respondent testified in support of his case and submitted a legal opinion
from Monty R Rhodes dated 3 May 2012. This opinion included the following
conclusion and remark:
'However, in our opinion, we caution that given the structural similarity of
buphenone to currently scheduled chemical compounds, such as cathinone,
the continued sale and importation of this material may have a higher risk
associated with it compared to previous compounds we have reviewed. We
therefore recommend you request a sup plemental opinion to consider
potential criminal claims associated with this particular research chemical
(buphedrone) if the structure and/or purity of this product are changed in any
material respect in the future, or if there are changes to the federal laws
discussed herein.'
[22] The court a quo gave an unwritten judgment on 1 December 2012 and ruled
at the end of the enquiry that the respondent be discharged in terms of section 2 of
the Extradition Act.
[23] On 7 February 2024, the appellant requested a stated case in terms of section
310 of the CPA. On 19 June 2024, the magistrate presented a judgment titled 'Stated
Case: In Terms of section 310(1) of the Criminal Procedure Act 51 of 1977'. In this
judgment, the magistrate found that the appellant fail ed to make out a case for the
extradition of the respondent to the USA on the basis that the appellant failed to
prove the requirement of dual criminality.
[24] On 9 July 2024, the appellant filed a notice of appeal. The appellant contends
that the magis trate failed to properly consider and apply the doctrine of dual
criminality and that he misapplied the standard for sufficiency of evidence under
section 10(2)10 of the Extradition Act.
[25] On 22 October 2024, the magistrate filed a notice of 'Reasons For Judgment'
in terms of Rule 51(8)(a) 11 where he recorded that the written reasons for judgment
were placed on file on 19 June 2024 and that he has nothing further to add.
[26] The appellant proposed that the questions of law which this court has to
determine could be formulated as:
(a) Question 1: Did the Magistrate err in law by finding that Buphedrone,
being a homologue of Cathinone, was not a "dangerous or undesirable
dependence-producing substance" or a "prohibited substance" as
contemplated in Schedul e 7 of the Medicines and Related Substances Act
101 of 1965, thereby incorrectly concluding that the importing of Buphedrone
(as charged in Count 1) did not constitute a criminal offence in South Africa?
(b) Question 2: Did the Magistrate err in law by hol ding that the distribution
and possession of Buphedrone (as charged in Count 2) did not constitute a
contravention of Section 22A(9)(a) read with Section 22A(10) and Section
22A(11)(a) of the Medicine and Related Substances Act 101 of 1965, on the
basis that Buphedrone was not a controlled substance under the Schedule of
the Act?
(c) Question 3: Did the Magistra te err in law by holding that the proceeds
derived from the sale of Buphedrone were not "proceeds of unlawful activities"
as defined in Section 1 of the Prevention of Organised Crime Act 21 of 1998,
10 For p urposes 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 c harge 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.
prosecution of the person concerned.
11 Upon the delivery of a notice of appeal the relevant judicial officer shall within 15 da ys thereafter
hand to the registrar or clerk of the court a statement in writing showing (so far as may be necessary
having regard to any judgment in writing already hand in by him or her) -
(i) the facts he or she found to be proved;
(ii) the grounds upon which he or she arrived at any finding of fact specified in the notice of
appeal as appealed against;
(iii) his or her reasons for any ruling of law or for the admission or rejection of any evidence so
specified as appealed against. A statement referred t o in paragraph (a) shall become part of the
record.
(iv) (c) This rule shall also, so far as may be necessary, applied to a cross-appeal.
thereby incorrectly finding that the alleged laundering o f such proceeds (as
charged in Count 3) did not constitute a contravention of Sections 4 or 5 of the
said Act?
(d) Question 4: Did the Magistrate err in law by misinterpreting or
misapplying the principle of statutory interpretation by admitting expert
evidence but not applying the expert evidence in determining whether
Buphedrone fell within the ambit of the relevant schedules or definitions of the
Medicines and Related Substances Act 101 of 1965, which resulted in the
discharge of the accused on Counts 1 - 2 and also, as a consequence, on
Count 3?
THE REQUIREMENT OF DUAL CRIMINALITY
Questions (a,) (b) and (c)
[27] These proceedings arose in the context of the Extradition Treaty between the
Republic of South Africa and the United States of America. In terms of section 2 (3)
ter 12 of the Extradition Act, the then Minister of Justice and Constitutional
Development gave notice that the Parliament of the Republic of South Africa had on
3 November 2000 agreed to the ratification of the extradition treaty between the
Republic of South Africa ( 'South Africa' ) and the USA. The exchange of the
instrument of Ratification brought the treaty into force on 25 June 200113.
[28] Article 1 of the treaty records the agreement between the respective parties to
extradite to each other, subject to provisions of the treaty, persons who the
authorities in the Requesting State have charged with or convicte d of an extraditable
offence. Article 2 deals with the nature of extraditable offences and sub -article 3 (a)
provides that:
'For the purposes of this Article, and offence shall be an extraditable offence
whether or not the:
12 The Minister shall as soon as practicable after Parliament has agreed to the ratification of, or
accession to, or amendment or revocation of an agreement or the designation of a foreign State, give
notice thereof in the Gazette.
13 Government Notice No. R.593 29 June 2001
(a) laws in the Requesting and Requested States place the offence within the
same category of offences or describe the offence by the same terminology
or ...'
[29] An extraditable offence is defined in Section 1 the Extradition Act as ' any
offence which in terms of the law of the Republ ic and of 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 cri minal law of the Republic and of
such foreign State.'
[30] In an email dated 17 January 2014 addressed to the Director -General, Chief
Directorate International Legal Relations of South Africa, the US Department of
Justice made an Urgent Request to the Repu blic of South Africa14 for the provisional
arrest for extradition of the respondent. The request was made pursuant to Article 13
14 1. Pursuant to Article 13 of the Extradition Treaty between the United States and the Republic of
South Africa, signed on September 16, 1999 (entered into force June, 2001), th e U.S. Department of
Justice requests the provisional arrest for purpose of extradition of Daniel M. Louie, also known as
"Dan" Louie (LOUIE). LOUIE is a citizen of Canada and Barbados and resides in Barbados.
According to United States law enforcement age nts, on or about January 11, 2014, LOUIE arrived in
Cape Town, Republic of South Africa, on British Airways flight 043 from London, with his travel
starting from Toronto, Canada. LOUIE is scheduled to depart Cape Town on February 4, 2014 aboard
British Air ways flight 058 to London, returning to Toronto. Although LOUIE has booked a flight to
return to Canada, his travel plans have been varied and not always predictable. In view of the
difficulty in predicting if LOUIE will return to Canada, his provisional a rrest in South Africa is urgent.
Drug Enforcement Administration (DEA} Country Attache/Special Agent Arthur Staples at the US
Drug Enforcement Administration (DEA} Country Attache/Special Agent Arthur Staples at the US
Embassy in Pretoria is the point of contact regarding th e case. DEA Special Agent Staples can be
reached at +27(0) 1[…], or by e-mail at a[…].
2. LOUIE is wanted to stand trial in the United States for drug trafficking and money laundering.
LOUIE is charged by an indictment, number #13 CRIM 822, filed on October 21, 2013, in the United
States District Court for the Southern District of New York, with:
Count One: Conspiracy to knowingly and intentionally import a controlled substance, namely
Buphedrone, an isomer of Mephedrone, into the United States from on or about July 2012, to on or
about July 2013, in violation of Title 21, United States Code, Sections 952, 960 and 963;
Count Two: Conspiracy to knowingly and intentionally distribute and possess with intent to distribute a
controlled substance, namely Buphedrone, an isomer of Mephedrone, from on or about July 2012, to
on or about July 2013, in violation of Title 21, United States Code, Sections 846 and 841(a)(1); and
Count Three: Conspiracy to commit money laundering in connection with laundering the proceeds of
drug trafficking, from on or about July 2012, to on or about July 2013, in violation of Title 18, United
States Code, Section 1956(a)(2)(A), 1956{a)(2)(B)(i), and 1956(h).
The maximum punishment for these offences up to 20 years imprisonment as to each count.
3. The offenses with which LOUIE is charged are covered under Articles 2(1) and 2 (2) of the
Treaty. Special Agent Staples has been advised by South African law enforcement authorities that
Buphedrone is schedule 7 controlled substance under the law of South Africa.
of the Treaty 15. Paragraph 2 of the Urgent Request stat ed that the respondent was
wanted to stand trial in the United States for drug trafficking and money laundering. It
referred to the respondent being charged by indictment No. 13 CRIM 822, filed on
October 21, 2013 in the United States District Court for th e Southern District of New
York and three counts were listed therein (referred to above). The US State
Department stated that the charges that the respondent faced were covered under
Articles 2 (1) and 2 (2) (above) of the Treaty. It also stated that 'Spec ial Agent
Staples has been advised by South African law enforcement authorities that
Buphedrone is Schedule 7 controlled substance under the law of South Africa (sic).'
[31] The US State Department stated further that on October 21, 2013, a warrant
for the arrest of the respondent had been issued by a United States Magistrate of the
District Court for Southern District of New York based on the charges in the
indictment. It claimed that the arrest warrant remained valid and executable to
apprehend the respondent for the charges filed in the indictment. The request further
set out the facts of the case that the respondent faced in the United States, which for
present purposes is not necessary to repeat and has already been set out earlier in
this judgment.
[32] The purpose of extradition is to secure the return for trial or punishment of
persons accused or convicted of crimes. Extradition is essentially a process of
intergovernmental legal assistance and based on the principle of reciprocity. In this
matter the legal basis of the extradition is based on the Treaty as referred to above.
[33] Central to the application for the extradition of the respondent is the
requirement of dual criminality which the appellant was required to be satisfied.
15 1. In case of urgency, the Requesting State may, for the purpose 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 Republi c 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 a request. The application may also be the transmitted by pos t,
telegraph, telefax or any other means affording a record in 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);
Schippers, AJA (as he then was) in Patel v National Director of Public Prosecutions
2017 (1) SACR 456 (SCA) stated at paragraph 8:
'[8] The principle of double (or dual) criminality is internationally recognized
as central to extradition law. The principle requires that an alleged crime for
which extradition is sought is a crime in both the requested and requesting
states. In other words, the crime for which extradition is sought must be one
for which the requested state would in turn be able to demand extradition.
Oppenheim puts it succinctly:
"No person may be extradited whose deed is not a crime accor ding to the
criminal law of the State which is asked to extradite as well as the State which
demands extradition."
[9] Double criminality, a substantive requirement for extradition, is predicated
on the premise of reciprocity in the sense of equivalent mutual treatment
deriving from mutuality of legal obligations. Shearer, states that the double -
criminality rule is based on reciprocity:
“The validity of the double criminality rule has never seriously been contested,
resting as it does in part on the bas ic principle of reciprocity, which underlies
the whole structure of extradition, and in part on the maximum of nulla poena
sine lege. For the double criminality rule serves the most important function of
ensuring that the person's liberty is not restricted as a consequence of
offences not recognised as criminal by the requested State. The social
science of a State is also not embarrassed by an obligation to extradite a
person who would, not according to its own standards, be guilty of acts
deserving punishm ent. So far as the reciprocity principle is concerned, the
rule ensures that a State is not required to extradite categories of offenders
for which it, in return, would never have occasion to make demand. The point
is by no means an academic one even in th ese days of growing uniformity of
standards; in Western Europe alone sharp variations are found among the
standards; in Western Europe alone sharp variations are found among the
criminal laws relating to such matters as abortion, adultery, euthanasia,
homosexual behaviour, and suicide."
[10] The principle of double criminali ty is closely related to extraditable
offences. This is evident from the provisions of both the Act and the treaty.'
[34] Importantly, the renowned Professor John Dugard in his work, International
Law, A South African Perspective 16 states at page 219 in re lation to the principal of
double criminality that:
'The principle of double criminality requires that the conduct claimed to
constitute an extraditable crime should constitute a crime in both the
requesting and the requested state. It is not necessary that the offence should
have the same name in both states, provided that they are substantially
similar.'
THE ENQUIRY IN TERMS OF SECTION 9 OF THE EXTRADITION ACT
[35] As already indicated in the period 2014 to 2018 there was a considerable
delay in the enquiry because the respondent approached the Western Cape High
Court with an application to nullify the legislative process on how the Minister of
Health had made certain amendments to Schedule 7 of the Medicines Act. The
application was brought essentially on the same grounds as in the matter of Smit v
Minister of Justice and Correctional Services and Others 2020 ZACC 2917.
[36] During this period of delay on 15 Ma rch 2016 Mephedrone was listed in
Schedule 7 of the Medicine's Act18.
16 2005, Juta, Third Edition.
17 "On 17 September 2020, the Constitutional Court found that section 63 granted the Minister plenary
legislative power without adequate guidance or oversight, effectively allowing the executive to amend
the law without parliamentary approval. This was deemed a violation of the separation of powers
principle enshrined in the Constitution. The Court declared section 63 and the subsequent
amendments made under its authority to be constitutionally invalid. However, to avoid legal
uncertainty and disruption, the Cour t suspended the declaration of invalidity for 24 months, providing
Parliament with an opportunity to rectify the constitutional defect. The invalidity was however not
retroactive."
18 Government Gazette No 39815 Vol 609 page 21.
[37] On 24 November 2014, the then legal representative of the respondent, a Mr.
Slabbert informed the court that the respondent had abandoned the High Court
review application.
[38] At the commencement of the enquiry, the previous counsel for the respondent,
Mr. Katz sought to challenge the admissibility of documents submitted into the
enquiry which had been produced by the US authorities. The court found the
documents to be admissible.
[39] The enquiry only re-commenced on 29 March 2021. At the commencement of
the hearing, counsel for the appellant Mr Badenhorst, indicated that it had intended
to call Ms. Petro Bekker as an expert witness, but that she would no longer be called
as she had left the emplo y of the State. In an affidavit dated 3 February 2014, Ms.
Bekker had contended, incorrectly so, that Buphedrone was a positional isomer of
Cathinone. In this regard she stated at paragraph 6 of her affidavit dated 3 February
2014;
"Buphedrone and any prep aration containing Buphedrone is a Schedule 7
medicine/substance. Buphedrone is alpha -methylamino-Butyrphenone MABP
(Cas 166593-10-8) is a positional isomer of cathitone'
[40] The appellant presented an affidavit by Colonel Hendrik Johannes Jakobus
Westraat (Colonel Westraat) dated 17 March 2021 and sought to lead him as an
expert witness in the enquiry. In his affidavit as indicated, Colonel Westraat set out
extensively his qualifications as a forensic analyst, that he had 34 years experience
in chemical a nalysis and 28 years in forensic investigation of crime scenes. In
paragraph 3 and onwards of the affidavit he stated:
'3. I have been asked by Colonel Jooste to compile an affidavit regarding the
scheduling, of the compound Buphedrone, in South Africa.
4.1 Buphedrone is a chemically related substance (Homologue) that
incorporates a structural fragment in its structure, that is similar to Cathinone
((-) - (s)-2-amino propiophenore). Because Cathinone is listed in Schedule 7
of Act 101/65, Medicines and related Substances Act, buphedrone is therefor
also per implication listed in Schedule 7 (Schedule 7 (vi)).
4.2 Act 101 of 1965 Section 22 A (I) prohibits the use, possession
manufacture or supply of any substance listed in Schedule 7 by any person
other than those listed in Section 22 (A) (a) (i) - (ii) (Pharmacists, Medical
Practitioner, Dentist, Veterinarian, etc).
4.3 In terms of Section 29(K) transgressions of Section 22 (A) constitutes
an offence.
4.4 Section 30 (i) states "Any person who is convicted of an offence
referred to in Section 29 shall be liable to a fine, or to imprisonment for a
period not exceeding ten (10) years".
4.5 Buphedrone is not listed in the Drug and Drug Trafficking Act, Act 140
of 92.
5.1 Find attach structural formula for Cathinone and its homologue
Buphedrone-Annexure A.'
[40] There was once again, objection by counsel for the respond ent, Mr. Katz this
time to the use of the affidavit of Colonel Westraat and him being called as an expert
witness. After lengthy argument from both Mr. Katz and Mr. Badenhorst, the
magistrate made the following ruling:
'I will accept that Colonel Westraat can give evidence.
Now, the issue with regards to whether Colonel Westraat can give evidence
with regards to questions of law, I am still of the view that if Colonel Westraat
is going to give evidence with regards to questions of law, the respondent
surely will be entitled to an objection. I will make a ruling on that.
With regards to the fact that to disregard whatever he is going to say, I do not
think I am going [to] allow it. I am going to allow him to say whatever he wants
to say. The counsel for the respondent is able to cross -examine him on the
issues that are on the statement. ..
…
I am not going to make a ruling now with regards to whether his statement is
admissible or not.
I will make [a] ruling with regards to that later on when I am going to m ake a
decision....
... I am going [to] allow him to lead evidence with regards to what is in his
statement. '
[41] The evidence of Colonel Westraat was then led by the appellant. Colonel
Westraat sought to show that Buphedrone was listed in Schedule 7 of the Medicines
Act and explained why that was so as homologues of listed substances are also
considered to be listed. In this regard he referred to Government Notice No 227,
Dated 15 March 2012, Government Gazette 35149, Department of Health, which
provided;
'All preparation or mixtures of such substances containing or purporting to
contain substances referred to in this Schedule include the following (unless
expressly excluded or unless listed in another Schedule):
(iv) The isomers of any of the salts referred to in (iii), where the existence of
such isomers is possible.'
[42] In respect of the diagram, Annexure A, referred to in his affidavit( included
hereunder) he stated as follows:
'Cathinone is a stimulant and that is listed in Schedule 7... Buphedrone, the
structure at the bottom, is very similar, almost identical to the structure at the
top. So the structure at the bottom contains a fragment of the structure on the
top. The structure on the top is Cathinone, it is listed... because Buphedrone
contains that fragment, Buphedrone is also listed in Schedule 7 of the
Medicines Act.'
ANNEXURE A
CATHINONE- Listed in Schedule 7 of Act 101 of 1965
BUPHERONE - Homologue of Cathinone and therefor per definition listed in
Schedule 7 of Act 101 of 1965
[43] During the initial cross -examination by Mr. Katz, it ap peared and rather
tediously, that much was made about Colonel Westraat's references to the law in his
affidavit. However, Colonel Westraat remained adamant that the focus of his
testimony was to confirm that Buphedrone was a homologue of Cathinone and
deferred the legal issues to the court to deal with. The matter was thereafter
postponed to enable the respondent and his legal representatives to consult with an
expert.
[44] The matter proceeded again on 7 October where further cross -examination
was conducte d by the respondent's new counsel, Mr. Stander. In relation to the
affidavit by Ms. Bekker, Mr. Stander submitted 'it is such a basic chemistry error that
I am astounded it has not been brought to the Court's attention'. The magistrate
thereupon permitted Mr. Stander to cross -examination Colonel Westraat on the
affidavit by Ms. Bekker. Colonel Westraat was adamant that Bekker was incorrect in
stating that Buphdrone was a positional isomer of Cathinone. Stander sought to
make much of the inconsistent positio n between Colonel Westraat and the affidavit
by Ms Bekker used by the appellant in the earlier proceedings and relied upon in
unsuccessfully opposing the release of the respondent on bail19.
19 The release of the respondent on bail by the magistrate that dealt with the bail application was
based primarily on the finding that the respondent did not pose a flight risk and no reference or
reliance was placed in the bail judgment on the affidavit of Ms. Bekker. Colonel Westraat, nonetheless,
[45] Counsel for the appellant correctly pointed out that much of the cross -
examination by Mr. Stander of Westraat dealt with irrelevant aspects relating to the
Drugs Act. Colonel Westraat for his part maintained that when the extradition
proceedings commenced in 2014 Buphedrone was not a listed substance under the
Drugs Act. He explained furthe r; 'what I am telling you here today is that if
mephedrone is listed in the Drugs Act then [Buphedrone will be listed as an isomer
of mephedrone].'
[46] Colonel Westraat emphasised, in response to the questioning by Mr. Stander,
as follows: 'I do not understand why we keep on referring to the Drugs Act, given the
fact that I already specified many times that my affidavit states that it is a homologue
and it is in the Medicines Act, not the Drugs Act.'
[47] Counsel for the appellant in the appeal, Ms. Christ ians correctly pointed out
that Mr. Stander had simply missed the point where he contended that the Drugs Act
was relevant: 'Firstly, in terms of dual criminality, there is a particular date in time that
is relevant to the term dual criminality. It is the date of extradition. In this case, it can
be interpreted as 25 April 2014 when the United States made the request for
extradition. Alternatively, 2 May 2014, when it was granted, since you have gone
there. That is the relevancy of it and let me then explai n to you why that is so
relevant, because one then has to determine whether the possession or the
distribution of Buphedrone was prohibited at a particular point in time and therefore it
is important and one cannot simply give generic evidence as to it is in the Drugs Act,
maybe it is not. There was an amendment. We are not going to tell the court when
the exact particularity of Buphedrone is relevant.' Needles to state, in our view, any
reliance placed on the Drugs Act before the magistrate was misplaced.
[48] Colonel Westraat repeatedly emphasized that on 15 March 2012, Regulation
[48] Colonel Westraat repeatedly emphasized that on 15 March 2012, Regulation
227(above), provided that homologues became relevant in Schedule 7 of the
Medicines Act.
remained adamant that Ms. Bekker was wrong and maintained his position that Buphedrone was a
homologue of Cathinone.
[49] Counsel for the appellant, Ms. Christians correctly pointed out that Mr.
Stander t hen quite astonishingly put to Colonel Westraat that 'homologues are
irrelevant' and went on to put to Colonel Westraat that 'Buphedrone as an isomer of
mephedrone was only listed in the Medicines Act as a controlled substance in the
Law Amendment Act, published on 15 March 2016'. Colonel Westraat for his part did
not dispute that and went on to explain his point about the fact that homologues had
already been included as far back as March 2012. Mr. Stander did not challenge that
evidence of Colonel Westraa t but sought to contend that homologues were not part
of American law and that the extradition request refers to 'isomers'. Needless to state,
Mr. Stander again in our view, completely missed the point.
[50] By way of summary, Colonel Westraat's evidence was that Buphedrone was a
substances covered by Schedule 7 to the Medicines Act, more specifically it is a
homologue of the Schedule 7 listed substance Cathinone. Colonel Westraat
confirmed that Buphedrone was therefore covered by paragraph (vi) of the
introductory part of Schedule 7 referred to above and which is repeated here for no
more than emphasis: 'All preparations or mixtures of such substances containing or
purporting to contain substances referred to in this Schedule include the following
(unless expressly excluded or unless listed in another Schedule) (vi) all homologues
of listed substances (being any chemically related substances that incorporate a
structural fragment into their structures that is similar to the structure of a listed
substance an d/or exhibit pharmacodynamics properties similar to the listed
substance in the schedules), unless listed separately in the Schedules.'
[51] That was the expert evidence led by the appellant in support of the
requirement of dual criminality. Despite havi ng his own expert on hand during the
cross-examination of Colonel Westraat, the respondent did not call the expert or any
cross-examination of Colonel Westraat, the respondent did not call the expert or any
other. During the course of his own testimony, the respondent again referred to the
legal opinion dated 3 May 2012 and a later opinion dated 16 August 2013 from his
United States attorney Dr. R. Rhodes on behalf of the law firm Sutton McAughan
Deaver PLLC, which he relied upon in his bail application20.
20 Buphedrone has been described as being chemically related to mephedrone (4 -
methylmethcathinone; (4-methylephedrone; (R,S(-2-methylamino-1-(4-methylphenyl)propan-1-one). It
was first synthesized in 1928 in studies on synthetic homologues of ephedrine [Hyde, J.F., et al.,
[52] It was, however, common cause that the Medicines Act had not listed
Buphedrone a s a stand -alone substance in 2014 when the enquiry started. In this
regard, the appellant relied on double criminality on the basis that Buphedrone was a
homologue of Cathinone when the extradition request was made and/or when the
enquiry commenced. In thi s regard see the remarks of Schippers, AJ in Patel
(referred to above) where at paragraph 40 he stated:
'[40] For the above reasons I have come to the conclusion that the double -
criminality rule must be satisfied as at the date of the request for the
extradition of a fugitive, not the date on which he is alleged to have committed
the offences in the foreign state. The court a quo thus rightly dismissed the
appeal under s 10(1) of the Act'.
[53] Counsel for the appellant correctly pointed out that although Buphedrone was
specifically added to Schedule 2 Part 1 of the Drugs and Drug Trafficking Act 140 of
1992 on 12 December 2002 it was of no relevance to this appeal.
JUDGMENT IN THE ENQUIRY
[54] The magistrate handed down an unwritten judgment on 1 December 2023 in
which he discharged the respondent in terms of section 10(3)21 of the Extradition Act.
The judgment of the magistrate with respect is hardly a model of clarity. Regrettably,
he seemed to have been way led in both his reasoning and findings by the three
different legal representatives who appeared on behalf of the appellant in the enquiry.
[55] In respect of the issue relating to dual criminality he stated:
"Synthetic Homologs of d,I-Ephedrine", J. Am. Chem. Soc., 50 (8), pp. 2287-2292 (1928)], and can be
considered both a cathinone derivative and a homologue of methcathinone.
A 'homolog' of a chemical compound is a compound belonging to a series of compounds differing
from each other by a repeating unit, such as methylene b ridge ( --CH2--). [See, Glossary of Terms
Used in Medicinal Chemistry, IUPAC Recommendations 1998].
Used in Medicinal Chemistry, IUPAC Recommendations 1998].
21 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.
'is a question of law. And then how would that be cured by an expert if the
question is something is not clearly raised in the Act? The expert himself, who
testified on behalf of the Appellant, with due respect, the issue with regards to
any definition to any chemical compound was not an issue for this court. The
issue whether it is an isomer, a [indistinct], or whatever was never an issue
that was requested by this court to be clarified. The question here is whether,
as per the extradition request, Buphedr one is a listed substance in terms of a
South African Act, or whether it is an isomer of methadone, that was the issue
before court with regards to the extradition.
As to the chemical compounds and any other thing, with respect, if the law is
not clear on that part then we had to deal with something else.
…
What the expert testified to, with respect, under cross-examination, in my view,
he failed to answer certain critical questions and with respect, whatever the
expert was here to do in court in order to try and clarify the position of
Buphedrone as sitting here, myself, I am still not sure what the expert
managed to clarify to me. As I am speaking today, as I am still not sure, I do
not know whether Buphedrone is an isomer of mephedrone.'
[56] As indicated, it appears that the magistrate appeared to have asked himself
the wrong questions in arriving at his decision. Moreover, there is nothing unclear
nor vague about the legislation. It simple required a sensible reading of the text. Ms.
Christians also correctly pointed out that the m agistrate had simply laboured under a
misapprehension that one or both of two propositions needed to be established:
i. First, that Buphedrone was a listed substance in a South African Act;
and/or
ii. Second, that Buphedrone is an isomer of mephedrone.
[57] In framing the questions for his determination it appeared that the magistrate
appears to have contemplated that in respect of the first proposition, Buphedrone
appears to have contemplated that in respect of the first proposition, Buphedrone
should be specifically listed, that the term Buphedrone should be reflected expressly
in a South African statute.
[58] Furthermore, that relying on the extradition request that the appellant was
required to have proved that Buphedrone was a listed substance in a South African
statute, which it was clearly not.
[59] The point missed by the magist rate, was that Buphedrone was shown to be a
homologue of a substance listed in the Medicine's Act, which was Cathonine,
Buphedrone would likewise therefore be a prohibited substance under South African
law. Strangely, as Ms. Christians pointed out, no ment ion whatsoever, was made by
the magistrate, of the word homologue in the oral judgment.
[60] It also appeared from the magistrate's judgment that he had concluded that
Colonel Westraat's evidence was 'irrelevant' and by implication, inadmissible. The
appellant contended that inasmuch as the magistrate had considered the questions
in the enquiry incorrectly, the magistrate's decision to discharge the respondent was
made as a result of not only one but of several errors of law.
[61] In this regard the magistrate found, amongst others, that:
'The expert testimony of Colonel Westraat, with due respect, cannot assist
this court, was irrelevant. It is tainted with many things. Under cross -
examination he answered several different answer which myself I could not
understand. As I say right up until today whether Buphedrone is an isomer of
Mephedrone right up until today. In terms of any Act in the Republic of South
Africa it is still not clear and apparent to me.'
The magistrate thereupon rejected the evidence of C olonel Westraat. He further
went on to state that in his view Colonel Westraat was never an 'expert for this
matter'. The magistrate was also of the view that because a Colonel Jooste of the
HAWKS had asked him to testify on behalf of the appellant as endlessly prompted by
Mr Stander in cross examination, that Colonel Westraat's evidence was tainted with
bias in favour of the appellant.
[61] As a result of the magistrates discharge of the respondent on what the
[61] As a result of the magistrates discharge of the respondent on what the
appellant contended were errors of law, on 7 F ebruary 2025, it addressed a letter in
terms of section 310 of the CPA to the magistrate in respect of the following
questions:
'15.1 Does the conspiracy to knowingly, intentionally, and unlawful importation
of Buphedrone into the Republic of South Africa constitute a domestic offence
for extradition?
15.2 Does the conspiracy to intentionally distribute and possess, with the
intention to distribute Buphedrone in the Republic of South Africa, constitute a
domestic offence for extradition?
15.3 Does the consp iracy to commit money laundering, willfully and
knowingly in connection with laundering of the proceeds of drug trafficking
through an account in Panama and transmitted into the Republic of South
Africa in furtherance of illegal drug trafficking constitute a domestic offence for
extradition?
15.4 Was the Presiding Magistrate's failure to pronounce on whether the
Respondent was extraditable to the United States of America on a count of
conspiracy to commit money laundering not such a serious irregularity that it
constituted a failure of justice?'
[62] On 19 June 2024, the magistrate furnished what he headed Judgment, Stated
Case in terms of section 310 (1) of the Criminal Procedure Act 51 of 1977.
THE FINDINGS OF FACT MATERIAL TO THE QUESTIONS OF LAW
[63] The magistrate stated that the rea l issue to be determined by the court in the
extradition enquiry was whether the importing (count 1), distributing and possession
(count 2) and laundering of the proceeds of selling Buphedrone an isomer of
Mephedrone (count 3) 'are a crime in South Africa (sic)'. With reference to the
definition of an extraditable offence in the Extradition Act the issues for determination
by the magistrate was whether the appellant had proved dual criminality of the
offences in both the requesting state (United States) and the requested state South
Africa as the pre-requisite for an extradition.
[64] The magistrate went on to state:
'6. The [ DPP] closed its case after leading the evidence of Colonel Hendrik
Johannes Jacobus Westraat, the only witness for the Appellant who 's
evidence is that Buphedrone is a chemically related substance (Homologue)
that incorporates a structural fragment in its structure that is similar to
cathinone and because cathinone is listed in Schedule 7 of the [Medicines Act]
is therefore also per im plication listed and therefore establishes dual
criminality.
7. The [ DPP] submitted that Buphedrone or any preparation containing
Buphedrone is a Schedule 7 substance in terms of [the Medicines Act] and
ought to be clarified with expert evidence, that it is not possible for the court to
make this determination without the expert evidence and that this is a factual
determination not legal...
8. The respondent submits that the [DPP] cannot lead expert evidence on
a legal issue, in the context of dual crimin ality whether conduct constitutes a
crime is a legal question not a factual question and you may only lead
evidence on the factual question not a legal issue.
9. The question is whether expert evidence is called on questions of law,
court finds in favour o f the respondent, to determine dual criminality is the
function of the court, it is the court that has to interpret, ascertain and
administer the law. Whether Schedule 7 of [the Medicines Act] or [Drugs Act]
is applicable or otherwise to United States of A merica's Titles and Codes to
establish dual criminality is the function of the court. It is a question of law, the
rule of law must be applied prior to reaching a conclusion, arguments may be
heard not evidence.'
QUESTIONS OF LAW
[65] The magistrate f ound in respect of the issue of dual criminality, that despite
the appellant disavowing the evidence of Bekker, the magistrate found that her
evidence was relevant in as much as it had been submitted as part of the bail
application(. Moreover, it appears t hat during the course of argument by Mr.
application(. Moreover, it appears t hat during the course of argument by Mr.
Badenhorst on 29 March 2014 with regard to the challenge of the expert evidence in
the enquiry, reliance was placed by him on the affidavit of Ms Bekker. Such reliance
was clearly misplaced as Colonel Westraat was s ubsequently emphatic in his
disavowance of the correctness of Bekker's evidence with regard to Buphedrone
being an isomer of Cathinone. Colonel Westraat emphatically agreed with Mr
Stander on that score.
[66] The magistrate further went on to find that Col onel's Westraat's evidence was
purely legal in nature even though he presented as an expert witness. Clearly that
was with reference to paragraphs 4.1 (in part), 4.2, 4.3, 4.4, 4.5 and 5.2 of the
affidavit deposed to by Colonel Westraat as set out in par agraph [40] above. Despite
the actual evidence of Colonel Westraat, the magistrate simply stated that not much
was said about 5.1, the structural formula of Cathonine and its homologue
Buphedrone. In that regard Colonel Westraat had clearly explained that Annexure A
diagrammatically depicted composition of both Cathonine and its homologue
Buphedrone. The magistrate simply ignored that evidence.
[67] Under the heading 'Decision and Reasons on Questions of Law' the
magistrate stated, amongst others, the following:
'17. No evidence was led by the [ DPP] to challenge or dispute the testimony
of the respondent. The evidence of the respondent stands as correct.
18. The Act itself Schedule 7 of section 22A (2) Medicines and Related
Substances Act 101 of 1965 act is so vague and not clear I cannot determine
with certainty in interpreting the ordinary grammatical meaning or words in the
Act conclude that scientific words Buphedrone or Mephedrone which are not
listed in any statute in the republic of South Africa as at date of request, used
in the United States of America's codes falls within the ambit of the Act, I
cannot find that they fall within the ambit of the act.
Cathonine the listed substance in Schedule 7 introduced by Government
Notice 31387 of 5 September 2008 is not defined in the Act, whether it is a
homologue, isomer, esters and ethers or salts of Buphedrone and
homologue, isomer, esters and ethers or salts of Buphedrone and
Mephedrone is not clear in terms of the A ct. The chemical makeup, the
structure or pharmacodynamics properties of Cathinone to compare with
Buphedrone and Mephedrone is not specified in the Act. The Act is not written
in clear and accessible manner and the court cannot with any certainty find in
favour of the applicant.'
[68] The chemical definitions of all of the substances listed in the various
Schedules in the Medicines Act (and for that matter even those substances referred
to in the Drugs Act and other related legislation) are not included in the legislation
itself. The chemical description and definitions are therefore provided by the
necessary chemical experts to assist a court or anyone that needs to access the
legislation. That is in fact what the respondent himself did in having sought the
chemical expertise and assistance of Dr. Rhodes in respect of the United States
legislation.
[69] The magistrate thereupon went on to reiterate that the affidavit of Ms. Bekker
was still before the court and in as much as it was relied upon by appellan t's counsel
on 29 March 2014 in support of leading the evidence of Colonel Westraat. The
magistrate was of the view that Bekker's evidence had not been withdrawn and she
had not been called to submit an affidavit to address the views expressed by Colonel
Westraat in his evidence. As already indicated the magistrate went on to dismiss the
evidence of Colonel Westraat who he also claimed was evasive, not credible and
that he lacked any independence.
THE MAGISTRATE'S ERRORS OF LAW IN DEALING WITH THE RESERV ED
QUESTIONS REFERRED TO UNDER (a}, (b) and (c) (above).
[70] The questions of law before the magistrate in the enquiry were simply whether
the import, distributing, possession and the laundering of the proceeds of the sale of
Buphedrone are crimes in Sout h Africa. Counsel for the appellant correctly pointed
out that these legal questions entailed both a factual enquiry (on the nature and
composition of the substance Buphedrone) as testified to by Colonel Westraat and a
legal determination as to whether the possession, import, distribution and laundering
of the substance Buphedrone are crimes in South Africa.
of the substance Buphedrone are crimes in South Africa.
[71] It is so that Colonel Westraat in his affidavit expressed opinions on legal
issues such that Buphedrone is a prohibited substance under Schedule 7 of the
Medicines Act. That was a question for the magistrate to determine. However, the
magistrate's opinion on the legal question had to be based on an anterior question of
fact, i.e. whether Buphedrone is a homologue of Cathonine. That was a factual
question based on expert chemical evidence.
[72] Counsel for the appellant correctly pointed out that based on established legal
principles and on a proper appreciation of both the evidence of Colonel Westraat and
the provisions of the Extradition Act, the magistrate's discharge of the respondent
was based on the following errors of law:
i. The magistrate had incorrectly framed the enquiry before him as purely
a question of law and had consequently disregarded the factual evidence that
was led.
ii. That the magistrate had decided not to admit the evidence of Colonel
Westraat in the light of what he regarded as the contradictory evidence of
Bekker and his assessment of Colonel Westraat as having not answered
questions by Mr. Stander on behalf of the respondent . In that regard, it is
apparent that the magistrate had decided not to admit Colonel Westraat's
evidence. I should point out that though, that was a ruling which the
magistrate should have made during the course of the enquiry, to have
enabled the parties to have considered what further evidence, if any, they
could or should have led in the light of the magistrate's findings on
admissibility.
[73] Counsel for the appellant and in our view, correctly so, pointed out that the
stated case provided by the magi strate regrettably appeared to be somewhat
incoherent in structure and difficult to follow or to understand. However, what was
clear was that the magistrate incorrectly framed the questions before him as purely a
question of law i.e. the interpretation and application of the relevant statutory
provisions. In that regard the magistrate in disregarding the uncontested evidence of
Colonel Westraat on the composition of Buphedrone as a homologue of Cathonine,
Colonel Westraat on the composition of Buphedrone as a homologue of Cathonine,
as evident from the diagram submitted into evidence and his explanation thereof was
a misdirection by the magistrate. The finding of the inadmissibility of Colonel
Westraat's evidence was correctly regarded as a question of law by the appellant.
Moreover, the dismissal of Colonel Westraat's evidence as purely legal in nature flew
in the face of the actual expert evidence, he led on the chemical composition of
Buphedrone in relation to Cathonine.
[74] Moreover, there was no challenge by any expert evidence to that of Colonel
Westraat that Buphedrone was a homologue of Cathonine. Counsel for the appellant
correctly pointed out that the magistrate himself in the stated case/ judgment with
reference to Cathonine refers to its 'homologue Buphedrone'. Thus, despite all the
obfuscation in his judgment and stated c ase, the magistrate appeared to have
understood that Buphedrone was a homologue of Cathonine. Yet the magistrate
continued to rely on what he regarded as the vagueness of the legislation by not
having specifically designated Buphedrone as a scheduled subst ance under
Schedule 7. Simply stated, in as much as Cathonine was a scheduled substance
under Schedule 7 and Buphedrone being a homologue of Cathonine, it was both
logically and axiomatic (per the legislation itself) that Buphedrone was covered by
the prohibition under Schedule 7.
[75] In our view, counsel for the appellant correctly submitted that the magistrate
had formulated the question before him incorrectly, whether as an admissibility issue
in respect of the evidence of Colonel Westraat or whether by his failure to have
properly appreciated the material nature and content of the evidence that Colonel
Westraat proffered.
[76] In our view, based on the evidence of Colonel Westraat with regard to the
chemical composition of Buphedrone in relation to Cath onine, the South African
offences described are substantially similarly of the US offences and therefore the
dual criminality requirement had been met by the appellant.
[77] It follows in respect of question (c), that the magistrate had in fact erred in law
by holding that the proceeds derived from the sale of Buphedrone were not
by holding that the proceeds derived from the sale of Buphedrone were not
'proceeds of unlawful activities' as defined in section 1 22 of the Prevention of
22 Any property or any service, advantage, benefit or reward which was derived, rece ived or retained,
directly or indirectly, in the Republic or elsewhere, at any time before or after the commencement of
Organised Crime Act of 1998 (' POCA'). He incorrectly found that the alleged
laundering of such pr oceeds (as in count 3) did not constitute a contravention of
sections 4 or 5 of POCA.
[78] In our view, the magistrate had in respect of question (d) clearly erred in law
by misinterpreting and misapplying the principles of statutory interpretation by not
admitting the expert evidence of Colonel Westraat and failed to apply such evidence
in determining whether Buphedrone fell within the ambit of the relevant schedules
and definitions under the Medicines Act which resulted in the magistrate incorrectly
discharging the respondent not only on counts 1 and 2 but also as a consequence,
count 3.
SUBSTITUTION
[79] Section 8(1)(c)(ii)(aa) 23 of the Promotion of Administrative Justice Act 3 of
2000 ('PAJA') provides that a court may, in judicial review proceedings in terms of
section 6(1) of PAJA 24 grant any order that is just and equitable and which in
exceptional cases could include the substitution or variation o f the administrative
action or correcting a defect resulting from the administrative action.
[80] In this matter the appellant seeks substitution of the decision taken by the
magistrate.
[81] In Trencon Construction (Pty) Ltd v Industrial Development Corpo ration of
South Africa Ltd and Another 25 the Constitutional Court held that the factors which
must be considered when determining if a case is 'exceptional' are:
this Act, in connection with or as a result of any unlawful activity carried on by any person, and
includes any property representing property so derived;
23 The court or tribunal, in proceedings for judicial review in terms of section 6 (1), may grant any
order that is just and equitable, including orders-
(c)setting aside the administrative action and-
(ii) in exceptional cases -
(aa) su bstituting or varying the administrative action or correcting a defect resulting from the
administrative action
administrative action
24 Any person may institute proceedings in a court or a tribunal for the judicial review of an
administrative action.
25 2015 (5) SA 245 (CC)
(i) whether the court would be in as good a position as the administrator
to make the decision;
(ii) whether the decision was a foregone conclusion;
(iii) the issue of delay, if any, and;
(iv) bias or incompetence on the part of the administrator.
[82] The Constitutional Court went on to hold that if it is established that the review
court is in as good a position as the administrator to make the decision, then the
court must consider whether the decision was a foregone conclusion and then to
consider the issue of delay and bias or incompetence.
[83] When considering whether the review court is i n as a good a position as the
administrator, the court will have regard to whether the administrator had specialised
or particular expertise to make the decision and whether or not the review court was
placed in possession of all the information pertinent to making the decision.
[84] Furthermore, in determining whether or not the decision was a foregone
conclusion, the review court would consider whether only one correct decision was
possible.
[85] Substitution can only be granted if it would be fair to all the parties and if the
review court was satisfied that it would be just and equitable to grant substitution.26
[86] In the present matter, this court is in as a good position to make a decision as
the court a quo. The decision to be made does not require any specific expertise or
specialised knowledge and all the information relevant to the making of the decision
is before this court.
[87] Section 10(1) of the Extradition Act provides that:
'if upon consideration of the evidence adduced at the enquiry referred to in
section 9(4)(a) and (b)(i) th e magistrate finds that the person brought before
26 Swanepoel NO v Profmed Medical Scheme 2025 (1) SA 33 (CC)
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 regard 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.' (own emphasis)
[88] It is clear from the wording of section 10(1) that an order committing a person
to prison must follow a finding that there is sufficient evidence to warrant a
prosecution for the offence in the forei gn state concerned. Thus, it can be said that
the decision, depending on the sufficiency of the evidence, is a foregone conclusion.
[89] In the present matter there has been a delay of more t han 10 years. Primarily
this delay was occasioned by the respondent challenging the validity of the
amendment to the Schedule of the Medicine and Related Substances Act which was
not prosecuted to finality but was abandoned and his change in legal represen tation.
The refusal of the magistrate to finalise the enquiry was the second primary reason
for the delay of the hearing.
[90] This substantial delay in finalising the matter impacts negatively on the
administration of justice and on South Africa's obligat ions it has in terms of the
extradition agreement it concluded with the United States of America.
[91] In the circumstances, we are of the view that this is an exceptional case which
justifies substitution in terms of section 8(1)(c)(ii)(aa) of PAJA. Furth ermore, we are
of the view that it would be fair to the parties and just and equitable that this matter
be finalised. The respondent is entitled to have this matter concluded and not to
have it cloud his life.
[92] The parties, at the request of the court , also made further written submissions
[92] The parties, at the request of the court , also made further written submissions
after the hearing of the appeal as to whether the court could and should release the
appellant on bail if the appeal is upheld. The parties agreed that if the appeal was to
be upheld, the appellant should in the inte rests of justice and given his record of
complying with his earlier bail conditions, be released on bail or his own
recognisance pending the decision of the Minister in term of section 11 of the
Extradition Act. We agree, that it would be in the interest o f justice that the
respondent be released on bail pending the decision of the Minister.
[93] The appellant is also advised herewith of his right of appeal against the
decision of this court in terms of Section 10 of the Extradition Act.
[94] Therefore, we make the following order:
4. The discharge of the respondent by the magistrate is set aside.
5. The respondent is found to be liable to be extradited to the United States
of America.
6. The respondent is to be released on bail in the amount of R25 000 (twenty
five thousand rand) pending the decision of the Minister of Justice in
terms of section 10(1) and/or the Ministers decision in terms of section 11
of the Extradition Act 67 of 1962 on the following conditions:
a. The Respondent must surrender all his passports to the
Investigating Officer.
b. The Respondent must report to the Gordon's Bay Poli ce Station
every Friday.
c. The Respondent must remain in South Africa.
SALDANHA, J
Judge of the High Court, Cape Town
I agree.
SLINGERS, J
Judge of the High Court, Cape Town
Appearances
For appellant: AG Christians
Instructed by: Western Cape Director of Public Prosecutions
For respondent: A De Jongh
Instructed by: Legal Aid South Africa