CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 258/24

In the matter between:


IAN GEORGE DALLAS WARES Applicant

and

ADDITIONAL MAGISTRATE, SIMONSTOWN First Respondent

MINISTER OF JUSTICE AND CORRECTIONAL
SERVICES Second Respondent

DIRECTOR OF PUBLIC PROSECUTIONS,
WESTERN CAPE Third Respondent



Neutral citation: Wares v Additional Magistrate, Simons town and Others [2025]
ZACC 29

Coram: Madlanga ADCJ, Dambuza AJ, Goosen AJ, Kollapen J,
Majiedt J, Opperman AJ, Rogers J, Theron J and Tshiqi J


Judgment: Dambuza AJ (unanimous)

Heard on: 13 February 2025

Decided on: 23 December 2025

Summary: Extradition Act 67 of 1962 — constitutionality of section 10(1) —
section is unconstitutional to the extent that it does not make
provision for magistrates to extend or grant bail after issuing a
committal order under that section.

2



ORDER



On application for confirmation of the order of constitutional invalidity granted by the
High Court of South Africa, Western Cape Division, Cape Town:
1. The order of the High Court of South Africa, Western Cape Division,
Cape Town, declaring section 10(1) of the Extradition Act 67 of 1962
(Act) inconsistent with the Constitution and invalid to the extent that it
does not provide for the power of a Magistrate to grant or extend bail after
a committal order is granted under section 10(1), pending an application
to review such a committal order or pending the Minister’s decision in
terms of section 11 of the Act, is confirmed.
2. The operation of the declaration of invalidity is suspended for a period of
24 months to allow Parliament to enact remedial legislation.
3. The declaration of invalidity shall take effect from the date of this order.
4. Until remedial legislation as contemplated in paragraph 2 of this order
comes into force, the following words are read into the Act as
section 10(5):
“The Magistrate issuing the committal order may, on application by such
person, grant bail or extend the bail of such person, if the interests of
justice permit the person’s release or continued release on bail, pending
the Minister’s decision in terms of section 11 of this Act, or pending any
legal proceedings instituted to review the decision of the Magistrate or the
Minister, on condition that such person deposits with the clerk of the
court, or with a member of the Department of Correctional Services, or
with any police official at the place where such person is in cus tody the
sum of money determined by the Magistrate.”

3
5. The second and third respondents, jointly and severally, must pay the
applicant’s costs in this Court, such costs to include the costs of two
counsel.



JUDGMENT




DAMBUZA AJ (Madlanga ADCJ, Goosen AJ, Kollapen J, Majiedt J, Opperman AJ,
Rogers J, Theron J and Tshiqi J concurring):


Introduction
[1] This is an application in terms of section 167(5)1 read with section 172(2)(a)2 of
the Constitution for confirmation of an order of constitutional invalidity made by the
Western Cape Division of the High Court, Cape Town (High Court). In terms of that
order, the High Court declared section 10(1) of the Extradition Act 3 (Act) inconsistent
with the Constitution and invalid to the extent that it does not provide for the power of
a Magistrate to extend or grant bail to persons brought before their courts under that
section, after granting committal orders against them, and pending either an application
to review the committal order or the Minister’s decision in terms of section 11 of the
Act.4

1 Section 167(5) of the Constitution states that:
“The Constitutional Court makes the final decision on whether an Act of Parliament, a
provincial Act or conduct of the President is constitutional and must confirm any order of
invalidity made by the Supreme Court of Appeal, the High Court of South Africa or a Court of
similar status before that order has any force.”
2 Section 172(2)(a) provides:
“The Supreme Court of Appeal, the High Court or a court of similar status may make an order
concerning the constitutional validity of an Act of Parliament, a provincial Act or any conduct
of the President, but an order of const itutional invalidity has no force unless it is confirmed by
the Constitutional Court.”
3 67 of 1962.
4 Section 11(a) provides that the “Minister may . . . order any person committed to prison under section 10 to be
surrendered to any person authorised by the foreign State to receive him or her”.

DAMBUZA AJ
4

[2] The High Court suspended the declaration of invalidity for a period of 24 months
to afford Parliament an opportunity to enact remedial legislation . It also ordered a
temporary reading -in pending the suspension. The first issue before us is whether
section 10(1) is inconsistent with the Constitution . T he consequent issue is the
determination of the appropriate remedy. The last issue is the question of costs in this
Court. In both the High Court and this Court, these issues were narrowed down as a
result of concessions made by the respondents in relation to the constitutional
inconsistency of section 10.

Background
[3] The 84-year-old applicant, Mr Ian Geo rge Dallas Wares, is the subject of an
extradition request made by the High Commissioner for the United Kingdom under the
European Convention on Extradition, to which South Africa is a signatory. He is a self-
confessed paedophile currently residing in the Cape Peninsula. The particulars of his
conduct are set out in more detail in the judgment of the High Court.5

[4] The prosecuting authorities in Scotland seek his surrender to stand trial in
Edinburgh on various counts, described in Scottish law as “ lewd, indecent and
libidinous practices and behaviour ”, and a single charge of “ indecent assault” . A
warrant of arrest for his extradition was executed on him at his home by members of
the South African Police Service on 22 May 2019. The following day he appeared
before the first respondent, the Additional Magistrate, Simonstown, Cape Town
(Magistrate). He was released on bail granted in terms of section 9(2) of the Act 6 and
on 12 July 2019 the extradition proceedings under section 10 commenced before the
Magistrate.


5 Wares v Additional Magistrate, Simon stown, Cape Town [2024] ZAWCHC 200; [2024] All SA 287 (WCC);
2025 (1) SACR 130 (WCC) (High Court judgment) at paras 2-5.
6 Section 9(2) is quoted at [20] of this judgment.

DAMBUZA AJ
5
[5] In the section 10 extradition enquiry the applicant made certain admissions
which led the Magistrate to determine that he was liable to be surrendered to the
United Kingdom in terms of the Act . The Magistrate accordingly issued a committa l
order for his extradition , and then extended the bail that had been granted under
section 9(2), pending the decision of the second respondent, the Minister of Justice and
Correctional Services (Minister), on whether the applicant would indeed be surrendered
to the United Kingdom in terms of section 11.

[6] Subsequent to the extradition enquiry , the applicant exercised his right under
section 11 of the Act and made written representations to the Minister, arguing that his
extradition would not serve t he interests of justice and would constitute “severe
punishment” given his poor health. Notwithstanding these submissions, on
19 February 2020 the Minister decided that the applicant should be surrendered to the
United Kingdom to stand trial.

[7] The applicant approached the High Court , challenging the Magistrate’s
extradition decision both by way of an appeal under section 137 of the Act and by way
of a review. The applicant also sought a review of the Minister’s decision made in terms
of section 11(a) to surrender him to the United Kingdom. The ground of review as
against the Minister was that, because the Magistrate had not committed the applicant
to prison but had instead granted bail, the Minister lacked the power to order him to be
surrendered to the United Kingdom.

[8] In response to the review application against the Minister’s surrender decision ,
the respondents, being the Minister and the Director of Public Prosecutions,
Western Cape (DPP) brought a counter-review, seeking an order that the Magistrate’s
decision to extend the applicant’s bail be declared unlawful and ultra vires (beyond the
Magistrate’s legal powers). Confronted with the counter-review, the applicant, in reply,

Magistrate’s legal powers). Confronted with the counter-review, the applicant, in reply,
brought a collateral constitutional challenge against s ection 10(1) of the Act. He

7 Section 13 is quoted at [23] of this judgment.

DAMBUZA AJ
6
contended that t his provision was unconstitutional because it did not permit a person
committed thereunder to be released on bail, after the committal order was issued, and
pending finalisation of the Minister’s decision under section 11 of the Act or pending a
review of the Magistrate’s decision. He contended that this constituted an unjustified
limitation of section 12(a) of the Constitution.8 The constitutional challenge was in due
course conceded by the respondents.

[9] The High Court invited the parties to consider and make submissions on the
constitutionality of section 13(3) and subsection (4) of the Act. Only the applicant filed
a post-hearing supplementary submission in response to the court’s invitation. His
submission was that bail in such instances should be considered on a case-by-case basis.
Although the High Court made no order in relation to the provisions of section 13 of
the Act, in this judgment I discuss, to the extent I deem beneficial to the parties, the
issues that were raised by the High Court.

[10] In terms of s ection 13(3), if an extraditee has lodged an appeal under
section 13(1) against the Magistrate’s section 10 decision, the Magistrate may grant bail
pending the finalisation of the appeal. Section 13(4) stipulates that if the Magistrate
determines under section 13(3) that the extraditee shall be released on bail , certain
provisions of the Criminal Procedure Act9 (CPA) shall apply to the bail so granted.
Significantly, and similar to section 10, section 13 makes no provision for consideration
of bail where an extraditee opts to await the decision of the Minister or intends to
approach the High Court for a review rather than an appeal under section 13(1). Nor
does section 13(3) empower the Magistrate to grant bail before the extraditee has
actually lodged his or her section 13(1) appeal, which may be up to 15 days after the
Magistrate’s section 10 decision.

Magistrate’s section 10 decision.


8 Section 12(1)(a) provides that everyone has the right to freedom of security of the person, which includes the
right not to be deprived of freedom arbitrarily and without just cause.
9 51 of 1977.

DAMBUZA AJ
7
[11] The High Court upheld the applicant’s argument on the unconstitutionality of
section 10(1) of the Act and granted a declarator accordingly. It interpreted the
provisions of section 10 to mean that Magistrates must commit to prison any extraditee
against whom the enquiry succeeds. In assessing whether th at limitation of rights
protected under section 12(1)(a) of the Constitution is justified in terms of section 36,
the High Court considered the background to extradition , which is grounded in the
prevalence of crime worldwide, and the need to arrest and extradite persons in
fulfilment of South Africa’s international obligations. The court concluded that there
is justification for limiting the substantive facet10 of the section 12 right to freedom, by
depriving extraditees of their freedom.

[12] The High Court found, however, that the same cannot be said of the limitation
to the procedural facet of the section 12 right. This is b ecause under section 10
Magistrates are unable to play the role of judicial officers and consider whether the
extraditee should be released on bail pending finalisation of the extradition process.
Consequently, section 10(1) of the Act arbitrarily limits the procedural facet of the right
to freedom and security protected under section 12 of the Constitution and falls to be
struck down. The High Court suspended the order of invalidity for a period of 24-
months and ordered a n interim remedy to be read into the Act after the existing
section 10(4).11

[13] The applicant’s appeal succeeded partially, and he was found liable to be
surrendered in respect of only three of the eight offences for which his extradition was
originally sought. With regard to section 13(3) of the Act, the court considered that it
does not provide for the consideration of bail where an extradit ee opts for a review,
whether under section 22 of the Superior Courts Act12 or by way of a legality challenge

10 In Smit v Minister of Justice and Correctional Services [2020] ZACC 29; 2021 (1) SACR 482 (CC); 2021 (3)
BCLR 219 (CC) (Smit) at para 101, this Court held that both the substantive and the procedural facets of the right
to freedom and security must be met for a d eprivation not to offend the provisions of section 12(1)(a) of the
Constitution. The distinction between the substantive and procedural facets of the right to freedom and security
is discussed in [25] of this judgment.
11 High Court judgment above n 5 at para 138.
12 10 of 2013. Section 22 provides:

DAMBUZA AJ
8
of the decision to extradite , or where he or she elects to petition the Minister not to
confirm the extradition, rather than approach ing the High Court on appeal. The court,
however, did not make any order in this regard.

In this Court
[14] As was the case in the High Court , the respondents accept the applicant’s
contention that section 10(1) is unconstitutional to the extent that it does not provide for
the power of a Magistrate to extend or grant bail after a committal order to an extraditee
who elects to await the decision of the Minister in terms of section 11 of the Act , or to
seek a review of the committal decision. The applicant refers to case law from Canada,
New Zealand, Australia, Germany and the United States of America , emphasising that
the approach in such jurisdictions is to permit bail to an extraditee on being found liable
for extradition.

[15] If the parties are correct regarding the constitutionality of section 10 , the next
issue for determination by this C ourt is the appropriate remedy. In this regard the
applicant highlights that he is not charged with an offence in South Africa and contends
that his extradition is concerned with c ontraventions of law that are not applicable in
South Africa. He contends that the responsibility to admit him to or to extend his bail
should be on the Magistrate who issued the committal order.

[16] The contention on behalf of the respondents is that the power to grant bail in
extradition proceedings is limited . They submit that, in this case, once the Magistrate

“(1) The grounds upon which the proceedings of any Magistrates’ Court may be brought
under review before a court of a Division are—
(a) absence of jurisdiction on the part of the court;
(b) interest in the cause, bias, malice or corruption on the part of the presiding
officer;
(c) gross irregularity in the proceedings; and

officer;
(c) gross irregularity in the proceedings; and
(d) the admission of inadmissible or incompetent evidence or the rejection of
admissible or competent evidence.
(2) This section does not affect the provisions of any other law relating to the review of
proceedings in the Magistrates’ Courts.”

DAMBUZA AJ
9
found that the applicant was liable for extradition, the responsibility for initiation of bail
proceedings shifted to the applicant. As a general principle, once an extraditee is found
to be liable for surrender, they must bear the responsibility to apply for bail and satisfy
the court that the interests of justice permit their release on bail, either on the exceptional
circumstances threshold provided under section 60(11) of the CPA, 13 or in terms of
section 60(1) to subsection (4), depending on the offence to which the extradition
relates, the respondents argue.

Discussion
Constitutionality of section 10 of the Act
[17] Notwithstanding the respondents’ concession regarding the constitutionality of
section 10, it is still necessary that this Court traverses the relevant legal framework to
determine whether the order of constitutional invalidity made by the High Court should
be confirmed. Such an enquiry is a constitutional issue that engages the jurisdiction of
this Court. If confirmation is appropriate, the next issue for this Court to determine is
a just and equitable remedy under section 172(1)(b) of the Constitution.

[18] The starting point s are the relevant sections of the Act. Section 3(1) regulates
who may be extradited:


13 Section 60(11) of the CPA provides:
“Notwithstanding any provision of this Act, where an accused is charged with an offence—
(a) referred to in Schedule 6, the court shall order that the accused be detained in custody
until he or she is dealt with in accordance with the law, unless the accused, having been
given a reasonab le opportunity to do so, adduces evidence which satisfies the court
that exceptional circumstances exist which in the interests of justice permit his or her
release;
(b) referred to in Schedule 5, but not in Schedule 6, the court shall order that the accus ed
be detained in custody until he or she is dealt with in accordance with the law, unless

be detained in custody until he or she is dealt with in accordance with the law, unless
the accused, having been given a reasonable opportunity to do so, adduces evidence
which satisfies the court that the interests of justice permit his or her release; or
(c) contemplated in section 59(1)(a)(ii) or (iii), the court shall order that the accused be
detained in custody until he or she is dealt with in accordance with the law, unless the
accused, having been given a reasonable opportunity to do so, adduces evidence which
satisfies the court that the interests of justice permit his or her release.”

DAMBUZA AJ
10
“Any person accused or convicted of an offence included in an extradition agreement
and committed within the jurisdiction of a foreign State a party to such agreement ,
shall, subject to the provisions of this Act, be liable to be surrendered to such State in
accordance with the terms of such agreement, whether or not the offence was
committed before or after the commencement of this Act or before or after the date
upon wh ich the agreement comes into operation and whether or not a court in the
Republic has jurisdiction to try such person for such offence.”

[19] Section 5 regulate s the issuing of a warrant of arrest or further detention for a
person in respect of which a request for surrender to a foreign state is received by the
Minister, or for a person in respect of whom a warrant of arrest would, in the opinion
of the Magistrate, have been justified if it had been alleged that he or she has committed
an offence in the Republic.

[20] In terms of section 9(1) any person detained under a warrant of arrest or under a
warrant for further detention shall, as soon as possible, be brought before a Magistrate
in whose area of jurisdiction he or she was arrested , for an enquiry to be held into
whether he or she is liable to be surrendered to the foreign state in which the offence
was committed or where he or she was convicted. In the enquiry, the Magistrate has
the same powers as in a preparatory examination in criminal proceedings, including the
power to commit the person for further examination and admitting him or her to bail.14
More specifically section 9(2) provides:

“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 offence in the Republic and shall, for the purposes

14 Sections 123-43 of the CPA regulate preparatory examinations in criminal proceedings. Under section 123 of
the CPA, where the Director of Public Prosecutions (r eferred to in the CPA as the “attorney general”) is of the
opinion that it is necessary for the more effective administration of justice that a trial in a Superior Court or
Magistrates’ Court be preceded by a preparatory examination into the allegations ag ainst an accused, they may
instruct that such an examination be instituted in the Magistrates ’ Court. The procedure is available where the
provisions of section 119 (plea in the Magistrates ’ Court on a charge justiciable in the Superior Court) are not
followed, or where section 119 is followed but the proceedings are adjourned under section 121(3) or 122(1)
pending the decision of the Director of Public Prosecutions. The aim of a preparatory examination is to establish
whether an offence has been committed, to identify the perpetrator, to determine the circumstances of the offence,
and to collate evidence to the extent necessary to determine whether charges should be preferred.

DAMBUZA AJ
11
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.”

[21] Section 10 regulates the extradition enquiry as follows:

“(1) If upon consideration of the evidence adduced at the enquiry referred to in
section 9(4)(a) and (b)(i) the magistrate find s that the person brought before
him or her is liable to be surrendered to the foreign State concerned, and in the
case where such person is accused of an offence, that there is sufficient
evidence to warrant a prosecution for the offence in the foreign Sta te
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 fifteen days appeal such
order to the Supreme Court.
(2) For purposes of satisfying himself or herself that there is sufficient evidence to
warrant a prosecution in the foreign State the magistrate shall accept as
conclusive proof a certificate which appears to him or her to be issued by an
appropriate authority in charge of the prosecution in the foreign State
concerned, stating that it has sufficient evidence at its disposal to warrant the
prosecution of the person concerned.
(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.”

[22] In terms of section 11 the Minister may order “any person committed to prison
under section 10 to be surrendered to any person authori sed by the foreign state to

under section 10 to be surrendered to any person authori sed by the foreign state to
receive him or her ”, or order that such person may not be surrendered until the
conclusion of criminal proceedings that may be pending against him or her, or until any
sentence of a term of imprisonment against him or her has been served.

DAMBUZA AJ
12
[23] The right of appeal to t he relevant Division of the High Court against the
committal order is regulated in section 13 of the Act:

“(1) Any person against whom an order has been issued under section ten or twelve
may within fifteen days after the issue thereof, appeal against such order to the
provincial or local division of the Supreme Court having jurisdiction.
(2) On appeal such division may make such order in the matter as it may deem fit.
(3) Any person who has lodged an appeal in terms of subsection (1) may at any
time before such appeal has been disposed of, apply to the magistrate who
issued the order in terms of section 10 or 12 to be released on bail on condition
that such person deposits with the clerk of the court , or with a member of the
Department of Correctional Services, or any police official at the place where
such person is in custody, the sum of money determined by the magistrate.
(4) If the magistrate orders that the applicant be released on bail in terms of
subsection (3), the provisions of sections 66, 67, 68 and 307(3), (4) and (5) of
the Criminal Procedure Act 1977 (Act No. 51 of 1977), shall mutatis mutandis
apply to bail so granted, and any reference in those sections to—
(a) the prosecutor who may act under those sections, shall be deemed to
be a reference to such person who may appear at an enquiry held under
this Act;
(b) the accused, shall be deemed to be a reference to the person released
on bail under subsection (3);
(c) the court, shall be deemed to be a reference to the magistrate who
released such person on bail; and
(d) the trial or sentence, shall be deemed to be a reference to the
magistrate’s order under section 10 or 12.”

[24] In terms of these sections of the Act , bail may only be granted or extended by a
Magistrate during the first (preparatory) stage of the extradition proceedings under
section 9(2), and after an appeal has been lodged under section 13(1). There is no

section 9(2), and after an appeal has been lodged under section 13(1). There is no
provision in section 10 for the extradite e to be admitted to bail at the end of the
extradition enquiry (proper), once a committal order is granted. This means bail is not
available while the extraditee awaits the decision of the Minister under section 11, or if
he or she intends to bring an application to have the committal order set aside or
reviewed in the High Court , or in the period ( of up to 15 days) before the extraditee

DAMBUZA AJ
13
lodges his or her appeal in terms of section 13(1). The effect of section 10 is that once
a Magistrate determines that a person is liable for surrender, that person may only be
admitted to bail after lodging an appeal under section 13.

[25] The unavailability of bail for extraditees after the grant of a committal order
under section 10, up to the lodging of an appeal under section 13 , must be considered
against the provisions of section 12(1)(a) of the Constitution which guarantees the right
to freedom of security of persons.15 This Court has repeatedly affirmed the substantive
and procedural dimensions of this right. The substantive dimension ensures that
deprivation of freedom c annot take place arbitrarily or without just cause. The
procedural dimension ensures that deprivation of freedom will only happen in terms of
a fair procedure.16 In Bernstein,17 O’Regan J distilled the two components of the right
to freedom as follows:

“[The right to] freedom has two interrelated constitutional aspects: the first is a
procedural aspect which requires that no -one be deprived of physical freedom unless
fair and lawful procedures have been followed. Requiring deprivation of freedom to
be i n accordance with procedural fairness is a substantive commitment in the
Constitution. The other constitutional aspect of freedom lies in a recognition that, in
certain circumstances, even when fair and lawful procedures have been followed, the
deprivation of freedom will not be constitutional, because the grounds upon which
freedom has been curtailed are unacceptable.”18

[26] The limitation on the substantive dimension of the right is not in issue in this
case. The applicant has not directed his challenge to that aspect. In fact, as stated, he
takes no issue with the limitation placed on that aspect of the right. The need for
South Africa to arrest and detain in order to fulfil its international commitments under

15 See n 8 above.

15 See n 8 above.
16 See, for example S v Coetzee [1997] ZACC 2; 1997 (3) SA 527 (CC) at para 159; De Lange v Smuts N.O. [1998]
ZACC 6; 1998 (3) SA 785 (CC); 1998 (7) BCLR 779 (CC) ; and Makana Peoples Centre v Minister of Health
[2023] ZACC 15; 2023 (5) SA 1 (CC); 2023 (8) BCLR 963 (CC). In Smit above n 10 at para 102, this Court held
that both facets must be met for a deprivation not to offend the provisions of section 12(1)(a) of the Constitution.
17 Bernstein v Bester N.N.O. [1996] ZACC 2; 1996 (2) SA 751 (CC); 1996 (4) BCLR 449 (CC).
18 Id at para 145.

DAMBUZA AJ
14
extradition agreements is self-evident. In Geuking19 this Court said the following about
the objectives of extradition:

“The need for extradition has increased because of the ever -growing frequency with
which criminals take advantage of modern technology, both to perpetrate serious crime
and to evade arrest by fleeing to other lands. The government of the country where the
criminal conduct is perpetrated will wish the perpetrator to stand trial before its courts
and will usually offer to reciprocate in respect of persons similarly wanted by the
foreign state. Apart from reciprocity, governments accede to requests for extradition
from other friendly states on the basis of comity. Furthermore, governments do not
wish their own countries to be, or be perceived as safe havens for the criminals of t he
world.”20 (Footnote omitted.)

[27] Criminal conduct therefore constitutes an acceptable justification for the
curtailment of a substantive right to freedom provided under section 12(1)(a) of the
Constitution. The evidence which forms the basis of the committal order provides just
cause for the deprivation of freedom. What remains is whether the procedural
component of section 12(1)(a) is satisfied.

[28] There can be no doubt that the mandatory committal under sections 10 and 13,
pending the Minister’s decision or other further developments, without individualised
assessment of necessity, undermines the procedural facet of the right protected under
section 12(1)(a) of the Constitution , and renders the committal arbitrary . The
procedural violation lies in the ab sence of a mechanism for a judicial determination as
to whether continued detention serves the interests of justice in the particular case after
the committal order is made. As the High Court found, o nce a Magistrate finds an
extraditee liable for surrender and issues a committal order under section 10, he or she
is barred from acting as an independent arbiter in determining whether that individual’s

is barred from acting as an independent arbiter in determining whether that individual’s

19 Geuking v President of the Republic of South Africa [2002] ZACC 29; 2003 (1) SACR 404 (CC); 2003 (3) SA
34 (CC); 2004 (9) BCLR 895 (CC).
20 Id at para 2.

DAMBUZA AJ
15
circumstances warrant continued detention or whether release on bail would serve the
interests of justice.

[29] Section 36 of the Constitution provides for curtailment of rights in the Bill of
Rights in terms of a law of general application, where the limitation is reasonable and
justifiable in an open and democratic society, based on human dignity, equality and
freedom.21 In Dlamini,22 this Court considered the constitutionality of the limitation on
the procedural aspect of the right to freedom and security in the context of lawful arrests
and detention . The judgment reveals the close interrelati onship between the rights
under section 12(1)(a) and those provided under section 35(1)(f).23

[30] In Tucker24 this Court explained the correct approach to the interpretation of
these rights as follows:

“It is trite that courts must read legislation, where possible, in ways which give effect
to the Constitution’s fundamental values. Courts are required to interpret legislation
not only so that legislation does not limit rights, but in a manner that promo tes rights.
In addition, courts have always interpreted legislation in favorem libertatis (in favour
of freedom or liberty). There is a presumption that a reasonable interpretation of a

21 Section 36(1) of the Constitution provides:
“The rights in the Bill of Rights may be limited only in terms of law of general application to the extent
that the limitation is reasonable and justifiable in an open and democratic society based on human dignity,
equality and freedom, taking into account all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.”
22 S v Dlamini; S v Dladla; S v Joubert; S v Schietekat [1999] ZACC 8; 1999 (4) SA 623 (CC); 1999 (7) BCLR
771 (CC).

771 (CC).
23 Section 35(1)(f) of the Constitution provides that “[e]veryone who is arrested for allegedly committing an
offence has the right to be released from detention if the interests of justice permit, subject to reasonable
conditions”.
24 Director of Public Prosecutions, Western Cape v Tucker [2021] ZACC 25; 2021 (12) BCLR 1345 (CC); 2022
(1) SACR 339 (CC) at para 104.

DAMBUZA AJ
16
statute that is less restrictive on the liberty of an individual is to be preferred over one
that is more restrictive.” (Footnote omitted.)

[31] While section 12(1)(a) establishes the general right to freedom, section 35(1)(f)
provides an additional specific right to protect that freedom. It provides the
foundational basis for bail where the interests of justice permit. As this Court held in
Dlamini, section 35(1 )(f) presupposes a deprivation of the right to freedom for the
limited purpose of ensuring that an arrestee is duly and fairly tried. 25 In extradition
proceedings, the purpose of the deprivation is related and similarly limited. It is to
facilitate repatriation of persons accused or convicted of crimes in other countries so
that they may stand trial or serve the sentences imposed on them. The proceedings
under section 10 are aimed at determining whether there is reason to surrender a person
to a foreign state for trial. Once that determination is made, section 35(1)(f) requires
that there be a mechanism for considering whether the interests of justice permit release
pending the Minister’s decision or any review proceedings.

Is the limitation justifiable?
[32] The respondents did not advance any justification for the limitation of these
rights. In any event, it is difficult to conceive of a justification that would sati sfy
section 36 of the Constitution. There can be no doubt that the mandatory committal
under section 10 of the Act, pending the Minister’s decision, without an individualised
assessment of whether the deprivation of liberty is justified , undermines both the
procedural facet of the right to freedom under section 12(1)(a) and the right protected
under section 35(1)(f). Under section 10 of the Act absolute deprivation of freedom
occurs regardless of individual circumstances.

[33] While there is a rational connection between a finding that a person is liable for

[33] While there is a rational connection between a finding that a person is liable for
surrender and the consequential committal by a Magistrate in a section 10 inquiry, and
the purpose of the Act, it is difficult to find such connection between the deprivation of

25 Dlamini above n 22 at para 53.

DAMBUZA AJ
17
the proc edural right and objectives of the Act, particularly when section 35(1)(f)
provides less restrictive means for achieving such objectives. The right to freedom and
security of person s is a fundamental right. The limitation obliterates it in certain
circumstances under sections 10 and 13. The only justification for its curtailment is to
prevent extraditees from fleeing, or in some other manner interfering with the
administration of justice. There can be no justification for the limitation where a less
restrictive option to achieve the purpose of extradition is available. For these reasons
the deprivation is arbitrary and is constitutionally unsustainable.

[34] Comparative law from various foreign jurisdictions indicates that while bail in
extradition cases is often given under stringent conditions, outright prohibitions and
extremely high thresholds for bail are generally avoided in favour of individualised
assessments that balance freedom interests against flight risk and international
obligations. In Alexander, 26 the Supreme Court of Namibia cited with approval Lord
Russell of Killowen CJ in the English case of Spilsbury,27 which held that the absence
of an express statutory provision authorising courts to grant bail after committal of a
person found liable for extradition did not oust the court’s jurisdiction to grant bail. In
arriving at his decision that the court has, independently of statute, by the common law,
jurisdiction to admit to bail , Lord Russell, as summarised by the Supreme Court of
Namibia intimated that:

“If it does (i.e. impliedly oust the courts’ jurisdiction), a curious result would follow,
for it is clear that the magistrate may remand the defendant pending the inquiry, and
the inquiry may extend over a long period of time, and it is also clear that the magistrate
may admit the defendant to bail as often as he remands him; it is also conceded, that

may admit the defendant to bail as often as he remands him; it is also conceded, that
when the defendant is returned to the place to which his return is demanded, the tribunal
having jurisdiction in that place can admit him to b ail pending the result of the trial;
and, this being so, it would be a strange result if there were no jurisdiction to admit him
to bail during the period between the making of the order for his return and his return.”


26 Alexander v Minister of Justice [2010] NASC 2; 2010 (1) NR 328 (SC).
27 R v Spilsbury [1898] 2 QB 615 at 620.

DAMBUZA AJ
18
[35] The absence of bail powers under section 10 (1) has not been shown to be
necessary, nor reasonable. It is an unjustified infringement of sections 12(1)(a) and
35(1)(f) of the Constitution and renders arbitrary , and thus unconstitutional, the
deprivation of the liberty of extraditees under section 10(1). Consistent with the
obligation of this Court under section 172 of the Constitution , section 10(1) must
therefore be declared invalid to the extent that it is inconsistent with the Constitution.

Remedy
[36] Having found section 10(1) of the Act to be constitutionally invalid, this Court
must determine the appropriate remedy. Section 172(1)(b) of the Constitution
empowers the Court to make any order that is just and equitable. The parties are in
agreement with the High Court’s suspension period of 24 months to afford Parliament
an opportunity to enact remedial legislation. The dispute regarding remedy centres only
on the content of the reading -in order that should operate during the period of
suspension.

[37] The applicant proposed the following reading -in, which was effected by the
High Court as section 10(5) of the Act:

“The magistrate issuing the order of committal may grant bail or extend the bail of the
person brought before him, if the interests of justice permit that person’s rel ease or
continued release on bail, pending the Minister’s decision to be made in terms of
Section 11 of this Act, or pending any review of the Magistrate’s decision made in
terms of Section 10 of this Act.”

[38] The respondents proposed that the reading -in be located at the end of
section 10(1) rather than be a standalone provision as section 10(5). As to the substance
of the reading-in clause, they proposed that the onus be placed on extraditees to initiate
bail proceedings by applying for bail , either on the “exceptional circumstances ” test
stipulated in section 60(11) of the CPA28 for offences equivalent to those listed in

stipulated in section 60(11) of the CPA28 for offences equivalent to those listed in

28 See n 13 above.

DAMBUZA AJ
19
Schedule 6 of that Act, or by satisfying the “interests of justice requirement” stipulated
in section 60(1) to (4), depending on the offence to which the extradition is sought.

[39] In addition, t he respondents proposed the following separate reading -in to
section 13(3), to address the lacuna in respect of bail pending a review of the
Magistrate’s decision: (1) addition of the words “or has i nstituted a revie w” after the
words “subsection 1”, and (2) addition of the words “or review” after the words “before
such appeal”, as well as adding the words “if the interests of justice permit ” to that
section. As stated, the High Court made no order in relation to section 13 of the Act. It
also seems that if provision is made under section 10 for extraditees to be admitted to
bail after a committal order is made, a similar provision in section 13 may not be
necessary.

[40] I share the High Court’s r eluctance to accede to the respondents ’ proposed
reading-in to section 10 which incorporates requirements stipulated in section 60(11) of
the CPA. Under that framework, detention is the starting norm, and the onus is pla ced
on the accused to adduce evidence of exceptional circumstances to demonstrate that his
or her release would be in the interests of justice. In this case, t he respondents’
suggestion that the bail regime prescribed in section 60 of the CPA should be imported
into extradition proceedings seems to be based on a misconception regarding the nature
of extradition proceedings.

[41] By their nature, extradition proceedings are unique. They are neither criminal
nor civil proceedings. In Geuking,29 this Court made plain that extradition proceedings
are not equivalent to domestic criminal trials. While extradition ultimately concerns
criminal matters, the extradite e is not an accused person within the South African
criminal justice system. Because of the peculiar nature of extradition proceedings, a

criminal justice system. Because of the peculiar nature of extradition proceedings, a
court must caution itself against mechanical importation of domestic criminal
processes. However, the caution exercised against incorporating the exceptional

29 Geuking above n 19 at para 2.

DAMBUZA AJ
20
circumstances test is not, by any means, a bar to the Legislature incorporating such test
should it determine it appropriate to do so.

[42] In sum, the purpose of extradition proceedings is to ensure the surrendering of
an extraditee to a foreign state to stand trial for crimes allegedly committed. There is
no classification of offences in the Act . And the proposed basis for imposition of an
onus on an extraditee, based on alignment of the offence to which the extradition relates
with the Schedule 6 offences , finds no support in the language us ed in sections 9 and
13 in which provision is made for bail currently.

[43] There is a basis, however, for distinct specifications for admission to bail at
different stages of the extradition process. Under section 9, Magistrates are empowered
to admit an extraditee to bail on the same basis as in a preparatory examination. In the
CPA, preparatory examinations are regulated under Chapter 20. There is no provision
in that Chapter regulating the granting of bail. However, section 60(1)(a) provides for
grant of bail at an accused’s first or subsequent appearance. That section provides:

“An accused who is in custody in respect of an offence shall, subject to the provisions
of section 50(6) be entitled to be released on bail at any stage preceding his or her
conviction in respect of such offence, if the court is satisfied that the interests of justice
so permit.”

[44] The interests of justice approach to bail proceedings was explained by this Court
in Dlamini.30 It held:

“[A bail enquiry] remains a unique interlocutory proceeding where the rules of formal
proof can be relaxed and where the court is obliged to take the initiative if the parties
are silent; and the court still has to be pro -active in establishing the relevant factors.
More pertinently, the basic enquiry remains to ascertain where the interests of justice
lie. In deciding whether the interests of justice permit the release on bail of an awaiting

lie. In deciding whether the interests of justice permit the release on bail of an awaiting
trial prisoner, the court is advised to look to the five broad considerations mentioned in

30 Dlamini above n 22.

DAMBUZA AJ
21
paragraphs (a) to (e) of subsection (4) [of section 60] , as detailed in the succeeding
subsections. And it then has to do the final weighing up of factors for and against bail
as required by subsections (9) and (10).”31 (Emphasis added.)

[45] Should extraditees be required to initiate bail proceedings once they are found to
be liable for surrender or after an order of committal is made ? The concept “interests
of justice” is not static. In bail proceedings it entails a judicial consideration of different
factors that are relevant to the granting or refusal of bail. In relation to the Act, t he
increased risk to the fulfilment of the country’s international obligations ( which arises
from p ossible absconding) after the grant of a committal order is a relevant
consideration. So is the seriousness of the offence to which the committal order relates.
In this context, requiring extraditees to “apply” for bail is consistent with the interests
of justice. The purpose is to set a procedural rule as to who initiates bail proceedings
and presents evidence , rather than imposition of onus, as suggested by the applicant .
As in section 60(2)(b) of the CPA, this will not constitute the imposition of a burden of
proof as required under section 60(11). The court will determine, on a balance of
probabilities, where the interests of justice lie. Importantly, a requirement to apply for
bail under section 10 will be consistent with the same requirement in s ection 13(3) of
the Act.

[46] Section 13(3) provides that an extradite e who has lodged an appeal against a
section 10 or a section 12 order may “apply . . . to be released on bail on condition that
[they] deposit with the clerk of the court . . . the sum of money determined by the
magistrate”. This means that at this stage of the extradition the extraditee bears the
responsibility of initiating bail proceedings and providing evidence to the court on

responsibility of initiating bail proceedings and providing evidence to the court on
which he or she relies i n pleading that the interests of justice permit his or her release
on bail. The requirement to initiate bail proceedings is made within the context of an
effective order of extradition. As in section 13, the increased risk of flight poses a threat
to the purpose of the proceedings.


31 Id at para 49.

DAMBUZA AJ
22
[47] In other comparable criminal proceedings, section 321 of the CPA provides that
an appeal against conviction does not automatically suspend the execution of the
sentence imposed following th e conviction. However, the convicted person may
“apply” to be released on bail and must present the facts necessary to enable the court
to exercise its interests of justice discretion.32 Although an extraditee is not a convicted
person, the pending appeal does not suspend the extradition order. The use of the word
“apply” in both proceedings is deliberate, and takes into account the significant findings
made against the bail applicant . The responsibility on the extradite e to initiate bail
proceedings can only be effected by way of tendering evidence on which the court can
make an evaluation as to whether the interests of justice permit his or her release on
bail. The distinction in the approach to bail under section 9 on one hand , and under
sections 10 and 13 on the other , must be viewed against this background. However,
there is no basis for importation, in extradition proceedings, of the special circumstances
threshold prescribed in the section 60(11) framework, and the Schedule 6 offences
under the CPA.

[48] Insofar as the respondents suggest that the reference in section 13(3) to
provisions of the CPA implies an overlap between the two types of proceedings,
justifying the importation of the Schedule 6 classification of offences and its exceptional
circumstances standard into bail in extradition proceedings, I do not agree. The
provisions of the CPA referred to in section s 13(3) and 13(4) regulate measures to be
taken in the event of breach of bail conditions by an accused ,33 including cancellation
of bail,34 and provisional cancellation of bail in instances where an offender , who had
been granted bail pending a review, cannot be found at the address given by him or her
at the time of granting bail.35 These provisions of the CPA are applicable in extradition

at the time of granting bail.35 These provisions of the CPA are applicable in extradition
proceedings in instances of breach of bail conditions generally and not particularly to
section 60(11) bail proceedings.

32 S v Beetge [2013] ZASCA 1.
33 Sections 66 and 67 of the CPA.
34 Section 68 of the CPA.
35 Sections 307(3), (4) and (5) of the CPA.

DAMBUZA AJ
23

[49] With regard to reading-in, this Court cautioned in National Coalition36 about the
need to ensure that the provision which results from severance or reading words into a
statute is (a) consistent with the Constitution and its fundamental values ; and (b)
interferes with the laws adopted by the Legislature as little as possible.37

[50] It is of importance that the reading -in remedy in this case should reflect proper
deference to the separation of powers while providing immediate relief to those affected
by the constitutional deficiency. It must bridge the gap between the need to ensure that
South Africa fulfils its international extradition obligations and the imperative to protect
individual liberties. It must not unduly burden the courts or impose particular hardship
on the state or on extraditees seeking temporary release.

[51] As to the suspension of the declaration of invalidity it seems to me that a period
of 24-months would be adequate to allow Parliament to address the constitutional
defect. During this period, the reading -in remedy shall apply to ensure that the rights
of persons subject to extradition proceedings are protected. If remedial legislation does
not come into force during the 24-month period, the reading-in will continue to operate
until such legislation does come into force.

[52] It bears repeating that the “interests of justice” standard does not impose an onus
on the extraditee. It is an obligatory constitutional rule that is sufficiently flexible to
accommodate both the freedom interests of extraditees and the important state interest
in fulfilling international obligations.

Costs
[53] Although the respondents did not oppose the merits of this application , their
concessions were only made at the hearing of the application before us, after they had

36 National Coalition for Gay and Lesbian Equality v Minister of Home Affairs [1999] ZACC 17; 2000 (1) BCLR

39 (CC); 2000 (2) SA 1 (CC).
37 Id at para 74.

DAMBUZA AJ
24
offered strong opposition to the remedy and persisted in their contention that the
principles applicable under section 60(11) be imported into bail in extradition
proceedings. It is appropriate that they bear the applicant’s costs , including the costs
consequent upon employment of two counsel.

Order
[54] The following order is made:
1. The order of the High Court of South Africa, Western Cape Division, Cape
Town, declaring section 10(1) of the Extradition Act 67 of 1962 (Act)
inconsistent with the Constitution and invalid to the extent that it does not
provide for the power of a Magistrate to grant or extend bail after a
committal order is granted under section 10(1), pending an application to
review such a committal order or pending the Minister’s decision in terms
of section 11 of the Act, is confirmed.
2. The operation of the declaration of invalidity is suspended for a period of
24 months to allow Parliament to enact remedial legislation.
3. The declaration of invalidity shall take effect from the date of this order.
4. Until remedial legislation as contemplated in paragraph 2 of t his order
comes into force, the following words are read into the Act as section 10(5):
“The Magistrate issuing the committal order may , on application by such
person, grant bail or extend the bail of such person, if the interests of justice
permit the per son’s release or continued release on bail, pending the
Minister’s decision in terms of section 11 of this Act, or pending any legal
proceedings instituted to review the decision of the Magistrate or the
Minister, on condition that such person deposits with the clerk of the court,
or with a member of the Department of Correctional Services, or with any
police official at the place where such person is in custody , the sum of
money determined by the Magistrate.”
5. The second and third respondents, jointly and s everally, must pay the
applicant’s costs in this Court, such costs to include the costs of two
counsel.

For the Applicant:



For the Second and Third
Respondents:



W King SC and B Prinsloo
instructed by Mathewson Gess
Incorporated Attorneys

F Petersen and C de Villiers
instructed by Office of the State
Attorney, Cape Town