Osagiede and Others v S (Appeal) (A153/2024) [2026] ZAWCHC 159 (7 April 2026)

IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN) [REPORTABLE]
Case no: A 153/2024

In the matter between:

PERRY OSAGIEDE First appellant
ENORENSE IZEVBIGIE Second appellant
FRANKLYN EDOSA OSAGIEDE Third appellant
OSARIEMEN ERIC CLEMENT Fourth appellant
COLLINS OTUGHWOR Fifth appellant
MUSA MUDASHIRU Sixth appellant
TORISEJU GABRIEL OTUBU Seventh appellant
PRINCE IBEABUCHI MARK Eighth appellant

and

THE STATE Respondent

Coram: Sher J et Bhoopchand AJ

Heard: 15 August 2025
Further submissions: 15 September 2025

Summary: Extradition- Application of double criminality principle that an extraditee can
only be extradited for an offence which constitutes a crime in both the requesting and
the requested state- Principle given effect to in extradition legislation and treaties either

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in terms of the conduct of the extraditee or in terms of the offences for which their
extradition is sought- The approach which has been adopted by a state is to be
determined by an interpretation of its extradition legislation and treaties.
-Interpretation of the definition of an extraditable offence in the extradition treaty
concluded between the USA and SA (which came into force on 25 June 2001) and the
Extradition Act 67 of 1962- Conduct-based approach to apply to the treaty, consistent
with foreign and international law and extradition treaties entered into by SA and foreign
states between 2001 and 2021.
-Method to be followed by a magistrate in an extradition enquiry in terms of s 10 of the
Extradition Act, where an extradition treaty which concerns SA proposes a conduct-
based approach to double criminality, set out.

___________________________________________________________________

ORDER
___________________________________________________________________


1. First, Third, Fourth, Fifth, Sixth and Eighth Appellants’ appeal against the order
which was made by the magistrate of Cape Town on 19 February 2024 in
terms of s 10(1) of the Extradition Act, 67 of 1962 (‘the Act’), whereby 1) it was
held that they are liable to be extradited to the United States of America and
2) they were committed to prison whist awaiting the decision of the Minister of
Justice and Constitutional Development as to their surrender, is dismissed.
2. The Registrar shall provide a copy of th is judgment to the magistrate of Cape
Town, for inclusion in the record of the proceedings which were held in the
extradition enquiry in terms of s 10 of the Act, which record is to be submitted
to the Minister by the magistrate together with such report as may be
necessary, in terms of s 10(4).

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JUDGMENT DELIVERED (VIA EMAIL) ON 7 APRIL 2026
______________________________________________________________________

SHER J (BHOOPCHAND AJ concurring):
1. This is an appeal against an order which was made by the magistrate of Cape
Town on 19 February 2024, in terms of s 10 (1) of the Extradition Act, 1 whereby it
was held that the appellants were liable to be surrendered to the USA pursuant to
requests that were made by it for their extradition , and they were committed
pending the decision of the Minister of Justice and Constitutional Development as
to their surrender.
2. The order followed upon earlier rulings which were made on 6 July 2023 and 25
January 2024. In the first of these the magistrate held that for the purpose of
determining whether the appellants were liable to be surrendered for extraditable
offences in terms of the USA-SA Extradition Treaty (the Treaty’), which came to
effect in June 20 01, the elements of the offences rather than the conduct of the
appellants were determinative. After further submissions were ma de the
magistrate held, in a follow-up ruling on 25 January 2024, that as the elements of
the offences corresponded with certain SA offences, the terms of the Treaty had
been complied with.
3. Although notices of appeal were lodged by all eight of the appellants, when the
matter came before us we were informed that the 2nd and 7th appellants were not
proceeding with their appeals.
4. On appeal the appellants contend that the magistrate erred in holding that the
elements of the offences for which they are sought to stand trial in the USA
correspond with offences in terms of our law. The Director of Public Prosecutions
in turn contends t hat the magistrate correctly held that the appellants were
extraditable but was wrong in doing so based on the elements of the offences for

1 Act 67 of 1962.

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which they were sought and should have held that they were liable for surrender
based on their conduct.
5. As neither of the parties had dealt with certain decisions of the highest courts of
the UK and other commonwealth countries on th e point in issue , aside from a
reference by the State to the decision of the Supreme Court of Canada in
Fischbacher,2 after hearing oral argument we called for further written
submissions. Regrettably, the submissions we received were perfunctory. Neither
of the parties made any attempt to enlighten us as to the legislative provisions that
apply in terms of the extradition law s of the UK (from whom our extradition law is
derived), or any of the other commonwealth countries with whom we share a
colonial and common law heritage. We were also not provided with substantive
submissions as to the treatment of the point in issue by the USA, UK and other
courts, and other than the Treaty which is in issue, were not provided with copies
of or submissions as to, any other extradition treaties which SA has entered into.
In addition, the submissions which we received in relation to the treatment of the
issue by our courts were, unfortunately, superficial.
The relevant facts and circumstances
6. In support of their request for the extradition of the appellants , who are Nigerian
citizens who were resident in SA at the time, the US authorities filed affidavits by
State Attorneys for the Districts of New Jersey and Eastern Texas (who are
responsible for the preparation and prosecution of criminal matters within their
areas of jurisdiction), which set out the history of the pending matters against each
of the appellants; and by agents from the US Secret Service and the FBI , which
detailed the investigations which were carried out . In addition, copies of the
indictments which were returned by grand juries, which set out the charges for
which the appellants are to stand trial and the warrants which were issued for their

which the appellants are to stand trial and the warrants which were issued for their
arrest, were also provided. First to Seventh Appellants were charged by the United
States District Court for New Jersey on 22 July 2021 and the Eighth Appellant by
the United States District Court for Eastern Texas on 18 November 2021.

2 Canada (Justice) v Fischbacher [2009] 3 SCR 170; 2009 SCC 46.

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7. In their affidavits the State Attorneys set out an exposition of the charges the
appellants face, with reference to the US Code which makes provision for them,
and the constituent elements of the offences involved. It is not necessary to detail
the individual charges which each appellant faces, as they are largely common
although they differ in number, and a summary of the case which was put forward
against them will suffice.
8. It was alleged that during the period 2011-2021 the appellants participated in an
international criminal enterprise in which they committed various acts of ‘wire’
fraud, ‘aggravated identity th eft’ and money laundering. 3 The reference to ‘wire’
fraud is a reference to a form of statutory fraud in the USA which is committed by
means of a ‘wire’. Although in its original form it envisaged the use of physical lines
or ‘wires’ by which persons communicate with one another, such as telephone and
telegraph lines, it evolved to include fraud committed by electronic or digital means
over the internet.
9. Using these means the appellants allegedly defrauded several individual victims
in the USA, as well as corporate and government entities across the world, of at
least $17 million , which they laundered by moving the ir ill-gotten gains through
various structures, entities and banks . To do so the appellants made use of false
aliases, which they adopted by ‘stealing’ and utilizing the identities of real people.
In several alleged ‘romance scams’ t he appellants lured vulnerable women and
deceived them into believing they were romantically inclined towards them, thereby
getting them to part with large sums of money.
The issue: double criminality
10. At the heart of the appeal is the question of whether the principle of double (or
dual) criminality, which is internationally recognized as central to extradition law, 4
was satisfied in the extradition request . The principle is part of the matrix 5 of

was satisfied in the extradition request . The principle is part of the matrix 5 of
international law standards within which extradition treaties are to be interpreted.
Reduced to its essence, it requires that a person should not be extradited unless

3 Under Title 18 of the United States Code (‘U.S.C. ’): Sections 1028A (identity theft), 1343 & 1349 (wire fraud
and conspiracy to commit wire fraud) and 1956(h) (conspiracy to commit money laundering).
4 Patel v National Director of Public Prosecutions 2017 (1) SACR 456 (SCA) para 8.
5 Riley v Commonwealth [1985] HCA 82; (1985) 159 CLR 1 para 6; Ortmann v USA [2020] NZSC 120 para 46.

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the crime for which they are sought by a requesting state is one for which, in turn,
the requested state would be able to demand extradition. It is premised on the
underlying notions of reciprocity and mutuality which underpin extradition.
Amongst the purposes it serves is to ensure that a person is not deprived of their
liberty at the instance of a requesting state for an offence which is not recognized
by the requested state, and to avoid the political embarrassment which would
ensue were the requested st ate to extradite a person who according to its own
standards would not be guilty of acts deserving of punishment. It also ensures that
a requested state will not be required to extradite categories of persons for which
it would never have occasion to make similar demands of a requesting state.6
11. As the principle is not a mandatory rule of international law it does not constitute a
restrictive limitation on the powers of states, and they are accordingly at liberty to
depart from it when concluding extradition treaties. Thus, a treaty may provide for
the surrender of a person who is charged with an act that is criminal only by the
law of the requesting state.7 In this regard, as in the Treaty which is in issue in this
matter,8 extradition treaties commonly contain a provision that a requested state
may not refuse extradition for offences pertaining to tax, customs duties, exchange
control or other ‘revenue’ offences because it does not impose the same kind of
tax, duty or exchange regulation, in terms of its law. The European Convention on
Extradition of 1957 (‘the Convention’), as amended, to which SA acceded in May
2003 9 has a similar provision in it 10 which allows for the exclusion of the double
criminality principle in such instances, by countries who are party to it.
12. In 1985 the High Court of Australia remarked in Riley11 that, notwithstanding its
wide acceptance as a general standard which is to be observed in international

wide acceptance as a general standard which is to be observed in international
relations, the precise content of the double criminality principle was still ‘unsettled’.

6 Patel n 4 para 9, citing Shearer Extradition in International Law (1971) at 137-138.
7 Riley n 5 para 5.
8 Article 6.
9 GG 24872, GN 666.
10 Article 5.2, introduced in terms of Art 2 of the 2nd Additional Protocol to the Convention.
11 Per Brennan J (as he then was), in Riley n 5 para 7.

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The decision in Riley and subsequent decisions by that Court12 and the highest
courts of other commonwealth countries such as New Zealand13 and Canada,14 as
well as the UK,15 have contributed towards the formulation of a commonly adopted
international position in relation to the determination of how the principle is to be
satisfied in extradition matters. This was made possible by the adoption of certain
common guidelines in the extradition legislation of these countries, derived from
the UN Model Treaty on Extradition, which was adopted by the General Assembly
in 1991; to which I will revert.
13. Before continuing it may be useful to point out how domestic statutes and treaties
which deal with extradition fit with one another in the framework of international
and domestic law, as this guides the interpretive approach that follows.
14. International law does not recognize an inherent right by a state to require another
to surrender to it a person who it alleges is guilty of a criminal offence against its
laws. Thus, any right to require the extradition of a person is ordinarily16 dependent
on a treaty with another state which provides for it, and the ‘primary’ principle of
international law that effect must be given to such an agreement, as expressed in
the maxim pacta sunt servanda.17 Consequently, the content of any right to require
or to grant extradition must be determined by reference to the terms of such a
treaty. However, the existence of a n extradition treaty is not sufficient on its own
for the process to be given effect to. For the governments of contracting parties to
have the legal right and power to detain and surrender persons for extradition, they
require the conferment of the necessary authority to do so, by way of authorizing
domestic legislative acts or statutes.18 In terms of our Act 19 until an extradition

12 O’Donoghue v Ireland; Zentai v Republic of Hungary; Williams v USA [2008] HCA 14; Minister for Home
Affairs v Zentai [2012] HCA 28.
13 Ortmann n 5.

Affairs v Zentai [2012] HCA 28.
13 Ortmann n 5.
14 USA v McVey [1992] 3 SCR 475; Fischbacher (2009) n 2.
15 Norris v USA [2008] UKHL 16; [2008] 2 All ER 1103; El-Khouri v Government of the USA [2025] UKSC 3.
16 In certain instances (SA is such a case), the Head of a state may have delegated authority (as per s 3(2) of
our Extradition Act) to agree to the extradition of persons, pursuant to a request from countries with whom the
state does not have an extradition treaty.
17 Riley n 5 para 3.
18 Id.
19 Section 2(3)a).

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treaty has been ratified or acceded to by our Parliament, it does not have any force
or effect.
15. As was noted by the UK Supreme Court in Norris,20 in setting out what will
constitute an extraditable offence in its domestic statute and any treaty which it
may conclude with another state , a legislative or executive authority must
inevitably make a choice as to how to give effect to the double criminality principle.
It will do so either by defining it in terms of conduct ( i.e. acts or omissions) on the
part of an offender, or in terms of the elements of the offence s for which their
extradition is sought. And it may adopt either an e numerative or an eliminative
approach i.e. one in terms of which the offences for which a person may be
extradited (which are commonly referred to in extradition acts and treaties as
‘extradition crimes’ or ‘extraditable offences’), are expressly listed, or one in terms
of which the offences for which extradition may not be granted or are excluded,
are stipulated.
16. As it is universally accepted that offenders should not be extradited for petty
offences which would attract only minor terms of incarceration as punishment, the
first qualification in an extradition statute or treaty as to what will constitute an
extraditable offence, is commonly to set a threshold limit in this regard. Our Act
provides21 that an extraditable offence is one which in terms of our law and that of
a foreign state is punishable with a sentence of imprisonment, or other form of
deprivation of liberty, for a period of 6 months or more. The Treaty in issue in this
matter stipulates22 that an offence shall be extraditable as between the USA and
SA if it is punishable under the laws of both states by deprivation of liberty for a
period of at least a year, or a more severe penalty.
The proceedings before the magistrate
17. In their submissions to the magistrate the appellants contended that the use of the

17. In their submissions to the magistrate the appellants contended that the use of the
word ‘offence’ in the definition of an extraditable offence in the Act and the Treaty,
as opposed to extraditable ‘conduct’, required the court to consider the elements

20 Note 15 para 65.
21 Section 3(1).
22 Article 2.1

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of the offences for which extradition was sought, to determine whether there was
double criminality. The meaning of the word ‘offence’ was plain and unambiguous:
an ‘offence’ was constituted when a person’s conduct complied with the definitional
elements of a crime to which it pertained. Consequently, the court was required to
consider the elements of the offences for which the appellants were sought in the
USA and had to be satisfied that they were ‘the same’ or ‘substantially similar’ to
the elements of offences for which the appellants could be charged in SA had they
been committed here. As there was no exact correspondence between the various
elements of the USA and SA offences , or one or more of the ir elements were
lacking, there was no double criminality.
18. In support of these contentions the appellants referred to the remarks by Goldstone
J in the decision of the CC in Geuking,,23 that in the determination of whether an
offence is an extraditable one a magistrate w ill have to consider whether the
evidence which is produced by a foreign, requesting state, in relation to it,
constitutes an offence in our law.
19. In response the State contended, also with reference to the decision in Geuking 24
and the decision of this court in Carolissen, 25 that the question for determination
was actually whether the conduct which is alleged to have been performed by an
extraditee, constitutes an extraditable offence, in that it constitutes a crime in both
the requesting state as well as in our law.
20. The magistrate was of the view that the matter was not that ‘straightforward’. She
said that there was case law (no reference was provided) that seem ed to require
that the elements of the offences in the two states had to be similar. She was not
persuaded that the use of the word ‘conduct’ in the cases referred to by the State,
meant conduct ‘in the larger sense’ of the actions alleged to have been committed

meant conduct ‘in the larger sense’ of the actions alleged to have been committed
by the appellants . In her view t here was confusion , because the only way to
determine which offences were applicable in an extradition matter was to have
regard for the conduct of the offenders for whom extradition was sought. Without

23 Geuking v President of the Republic of South Africa & Ors 2003 (1) SACR 404 CC, 2003 (3) SA 34 (CC) para
39.
24 Para 40.
25 Carolissen v Director of Public Prosecutions 2016 (2) SACR 171 (WCC).

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knowing what their alleged actions were, a court in a requested state could not
determine what offences were in issue, in order to consider whether their elements
accorded with the elements of the offences in the requesting state.
21. After considering the differences between the wording of the instant Treaty and
that which SA had concluded with Hong Kong (which was put before her by the
appellants’ counsel), and the principles of interpretation that were applicable, the
magistrate was of the view that the Treaty contemplated a consideration of the
elements of the offences rather than the conduct of the appellants, as this seemed
to her to be the clearly expressed intention of the contracting State parties.
22. In follow-up proceedings the magistrate considered the elements of two of the
offences for which the appellants ’ extradition was sought viz. wire fraud and
aggravated identity theft. She gave no consideration, seemingly, to the offence of
money laundering.
23. She rejected the contention by the appellant’s counsel (with reference to the US
Department of Justice’s Civil Resources Manual) that, contrary to the definition of
wire fraud which was provided by the US authorities in their papers , it did not
require the making of a misrepresentation and could be committed merely by
devising or participating in a ‘scheme’ or ‘artifice’ which might , or might not , be
implemented by way of a misrepresentation . From certain federal court of appeal
decisions that were referred to by the appellants’ counsel,26 the magistrate was of
the view that the making of a misrepresentation was an element of the offence of
wire fraud, as was the case for the South African common law offence of fraud. In
similar vein, she rejected the contention that, unlike SA law, prejudice (either actual
or potential), was not required for the American offence. She concluded that as the
elements of both the US offences of wire fraud and aggravated identity theft

elements of both the US offences of wire fraud and aggravated identity theft
corresponded with those of the common law offence of fraud in SA, the appellants
were extraditable.
24. During the hearing of argument we pointed out to the appellants’ counsel that in its
decision in Kousisis, 27 which was delivered in May 2025, the US Supreme Court

26 US v Drake 932 F .2d 861 863 (10th Cir. 1991); US v Faulkner 17 F .3d 745 771 (5th Cir.1994).
27 Kousisis v US 605 US 114.

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confirmed that a defendant may be convicted of wire fraud and a conspiracy to
commit it where they induce a victim to enter into a transaction with them under
materially false pretenses i.e. by way of a material misrepresentation, even if they
did not seek to cause the victim economic loss, and thus the causing of actual loss
or harm is not required; potential loss or prejudice will do. In the circumstances the
magistrate was correct in her understanding that according to US law the offence
of ‘wire fraud’ requires both the making of a misrepresentation and prejudice,
actual or potential.
Double criminality in the UK, Australia, New Zealand, Canada and the USA
(a) Legislative provisions
25. Prior to the adoption of the Act in 1962, following upon our declaration as a
Republic independent from Britain, SA was subject to the terms of the British
Extradition Act of 1870 (‘the BEA’) and the Fugitive Offenders Act of 1881, which
was later replaced by the Fugitive Offenders Act of 1967 (‘the FOA’), as were other
British colonies.
26. The BEA regulated extradition between the British Empire (i.e. the UK and her
colonies and possessions) and foreign states, and the FOA regulated extradition
inter se , between states within the British dominion. The BEA could be made
applicable to a foreign state, by agreement between it and the UK ’s head of state
the Queen, and was thus the forerunner of ss 2(1) and 3(1) of our Act, which allows
our President, as head of state, to enter into an agreement with a foreign state
which provides for the surrender, on a reciprocal basis, of persons who are
accused or convicted of the commission of an extraditable offence, as specified in
such agreement. Our Act also allows 28 for a person to be extradited to a foreign
state with which we do not have an extradition treaty , if the President consents
thereto in writing.
27. As in our case, after attaining their independence other former colonies of Britain

27. As in our case, after attaining their independence other former colonies of Britain
including New Zealand (1947), Canada (1982) and Australia (1986), also adopted
their own extradition statutes, with subsequent iterations thereto. Australia’s

28 Section 3(2).

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current Extradition Act was adopted in 1988 and those of New Zealand and
Canada in 1999. The UK’s current statute is the Extradition Act of 2003.
28. As in the case of our Act , each of th ose former commonwealth countries’
extradition acts also adopted, as a preliminary requirement for what they consider
to be an extraditable offence, a minimum punishment threshold: In Australia29 and
New Zealand 30 extraditable offences are those punishable with a period of
imprisonment of at least a year or more. Canada’s Extradition Act requires offences
to be punishable with a period of imprisonment of 2 years or more in the foreign
state (and 5 years or more in Canada in certain instances ), where there is an
existing treaty in place between Canada and a foreign state,31 and in non -treaty
cases with a period of 2 years imprisonment or more.32
29. But, unlike our Act, i n addition to this qualification the extradition Acts in these
countries have additional conditions in them which must be satisfied for an offence
to be an extraditable one. The Australian statute provides33 that persons are only
eligible for surrender if the magistrate or judge is satisfied that their conduct (or the
‘equivalent’ thereof), had it taken place in Australia, would constitute an offence. In
determining this question any ‘difference’ between the ‘denomination or
categorization’ of offences under the laws of the foreign state and that of Australia
must be disregarded.34
30. The New Zealand Act stipulate s that, in determining whether the conduct of the
person for whom extradition is sought would have constituted an offence in the
other country or in New Zealand had it occurred there, the ‘totality of the acts ’
alleged to have been committed must be taken into account ,35 and it does not
matter whether under the laws of the other country or New Zealand the acts or

29 Sections 5(a)(i) and (b) of its Extradition Act 1988.
30 Sections 4(1)(a) and (b) of its Extradition Act 1999.

30 Sections 4(1)(a) and (b) of its Extradition Act 1999.
31 Sections 3(1)(a) and (b)(ii) of its Extradition Act 1999.
32 Section 3(1)(b)(ii).
33 Section 19(2)(c).
34 Section10(3)(b).
35 Sections 4(2) and 5(2).

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omissions constituting such conduct are ‘categorized or named’ differently, or the
‘constituent elements’ of the offences in the two states differ.36
31. In terms of the Canadian Act37 a person may likewise be extradited if their conduct,
had it occurred within its territory or jurisdiction, would constitute an offence that is
punishable in terms of its law. To this end, the Canadian Act provides,38 ‘for greater
certainty’, (sic) that it is not relevant whether the conduct is ‘named, defined or
characterized’ by Canada’s ‘extradition partner’ i.e. the other state in an application
for extradition, in the same way as it is in Canada.
(b) Case law
32. in seeking to define a mutually extraditable offence as one in terms of which the
conduct of an offender is criminal in both the requesting and the requested state
and stating that in this regard the categorization of the crime or offence in each of
the states, or its constituent elements, is immaterial or irrelevant, or must be
disregarded, the extradition acts of the commonwealth countries referred to
seemingly sought to avoid divergences of interpretation by courts of requesting
and requested states in extradition matters, as occurred in the UK in relation to its
two Acts, before they were repealed by the (UK) Extradition Act 1989 ; which
consolidated its 2 regimes. The 1989 Act was understood to impose the conduct
test in extraditions to and from the UK i.e. that the conduct of persons to be
extradited was to be assessed in the sense of the acts and/or omissions they were
accused of, and not in the sense of the offences of which they were accused.39
33. Prior to the re peal of the BEA and the FOA in 1989, the requirement of double
criminality was understood to differ for each statute. In terms of the BEA an
‘extradition crime’ was one which, if committed within England or its jurisdiction,
would be one of the crimes described in a schedule to the BEA. Paradoxically, this

would be one of the crimes described in a schedule to the BEA. Paradoxically, this
was interpreted to mean that in cases involving extradition from and to states
outside the British Empire, the court was not concerned with what provision of
foreign criminal law the person for whom extradition was sought was charged: the

36 Sections 5(2)(a)-(b).
37 Section 3(1)(b).
38 Section 3(2).
39 Norris n 15 paras 72-73; R v Secretary for the Home Department, Ex p Hill [1999] QB 886.

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test was whether their conduct, had it been committed in England, would constitute
a crime which fell within the description of an offence in the BEA i.e. in England.
This was because an exact correspondence between the offences in the 2 states
was not required. Thus, the House of Lords held 40 that the extradition magistrate
was not required to determine whether the offence for which extradition was sought
by a foreign state was the same or ‘substantially similar’ to an offence in the
schedule to the BEA.
34. In contrast to this, however, to qualify as an extraditable offence in relation to
extraditions to and from states within the Empire, the FOA of 1967 required that
the ‘acts or omissions constituting the offence’ (my emphasis) or their equivalent,
would constitute an offence against the laws of the UK had it occurred there. This
was interpreted by the House 41 to mean that the re had to be a matching
correspondence between the ingredients i.e. the elements of the offences , in the
requesting and requested states.
35. In 2008 the House held in Norris, 42 after reviewing case law pertaining to the
earlier Acts and the decision of the Canadian Supreme Court in McVey43 that, as
the purpose of an extradition statute was to bring to justice those accused of
serious crimes, a matter in which there was a ‘transnational interest’,44 a broader,
‘generous’ construction which examined the conduct of an offender on which a
requesting state sought to rely, was to be adopted when interpreting the provisions
of the 2003 Act. Such a construction would avoid the need to always investigate
the ingredients or elements of foreign offences, a problem which ha d long
complicated and delayed extradition proceedings.45 In this regard, it noted, as was
pointed out in Canada in McVey, 46 that an offence/elements-based approach often
required evidence as to the content and meaning of provisions of criminal law in a

required evidence as to the content and meaning of provisions of criminal law in a

40 Norris n 15 para 67 referring to In re: Nielsen [1984] AC 606 and Government of the USA v McCaffery [1984]
1 WLR 867.
41 Government of Canada v Aronson [1990] 1 AC 579; Norris paras 69-70.
42 Note 15 paras 86-91.
43 USA v McVey [1992] 3 SCR 475 at 513.
44 In re Ismail [1999] 1 AC 320 at 326-327.
45 Id para 89.
46 Note 43 at 528.

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foreign state, which could hamper the expeditious operation of extradition
proceedings. Similar sentiments were expressed by the HCA in Riley, 47 where it
was noted that an approach which placed primary emphasis on labels and a
correspondence of the legal elements of offences, would frustrate the
effectiveness of extradition arrangements between states with dissimilar systems
of criminal law.
36. The House was of the view that adopting a broad, conduct-based approach, which
was ‘almost universally followed’ (in this regard it referred to the UN Model Treaty
on Extradition), would place UK law on the same footing as most of the rest of the
common law world. 48 Consequently, the House held that the conduct test should
be applied by having regard for the acts and omissions of an offender, as described
in the documents that were lodged in support of a request for their extradition,
ignoring ‘mere narrative background’.49
37. That the conduct -based approach is currently the one which is applied in
extraditions involving the UK was confirmed in 2025 by the Supreme Court in El-
Khouri,50 a case which involved the extradition of an offender to the USA on
charges of securities and wire fraud and conspiracy to commit such offences. The
Supreme Court reiterated51 that the determination which was to be made was
whether the conduct specified in an extradition request would constitute an offence
under UK law if it occurred there. Thus, the focus when applying the conduct-based
approach was on the substance of the criminality alleged by the requesting state,
rather than on the technical definition of its offences.52
38. In O’Donoghue 53(2008) and later Zentai 54(2012) the High Court of Australia
similarly endorsed the conduct-based approach to extradition requests which
involve Australia. The HCA referred ,55 with approval, to the commentary of Prof

47 Note 5 para 8.
48 Id n 15 para 90.
49 Para 91.
50 El-Khouri v Government of the USA [2025] UKSC 3.
51 Paras 13, 17 and 20.

49 Para 91.
50 El-Khouri v Government of the USA [2025] UKSC 3.
51 Paras 13, 17 and 20.
52 Id paras 64-66.
53 Note 12 para 70.
54 Note 12 para 23.
55 Zentai id.

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Bassouini (in his work on US extradition law and practice ),56 that the requirement
of double criminality will be met for the purposes of an extraditable offence if the
conduct of the offender is criminal in both the requesting and the requested state,
even though it may not be defined identically by them. In this regard it appears that
as early as 1922 the US Supreme Court also eschewed an elements -based
approach when it held in Collins,57 which concerned a request by Britain for the
extradition of an offender to India on a charge of having ‘feloniously obtained a
pearl button’, that it was not necessary that the name by which the crime was
described in the two countries should be the same, or that the offender’s scope of
liability be ‘co-extensive’ in both.
39. In the HCA’s view the double criminality principle does not require a ‘precise
correspondence’ between the names or the elements of offences in the requesting
and requested states.58 It will be sufficient if an alleged offence against the law of
the requesting state would necessarily ‘involve’ a criminal offence against the law
of the requested state, had the acts constituting it been performed in the latter
state.59
40. In 2009, a year after the decisions of the highest courts in the UK and Australia,
the Canadian Supreme Court held in Fischbacher, 60 that in determining how the
principle of double criminality should be satisfied in extradition proceedings,
Canada’s chosen approach was ‘unquestionably’ conduct based. Thus, extradition
to and from Canada was permitted where the conduct underlying a foreign offence,
had it occurred in Canada, would constitute an offence in terms of its law, however
‘named or characterized’.61
41. In 2020 the Supreme Court of New Zealand was called upon to decide how the
requirement of double criminality was to be met, in Ortmann ,62 where the USA
sought the extradition of offender s who were wanted on charges of racketeering,

sought the extradition of offender s who were wanted on charges of racketeering,

56 Bassiouni International Extradition: US Law and Practice 5th ed (2007).
57 Collins v Loisel 259 US 309 at 312.
58 Zentai n 12 para 23, referring to the decision in Riley n 5 at 18.
59 Id.
60 Note 2 para 4.
61 Id.
62 Note 5.

17

copyright infringement, wire fraud and money laundering. It held 63 that as New
Zealand’s Extradition Act of 1999 provided that when making a determination as
to an offender’s extraditability, the totality of the acts or omissions which they were
alleged t o have committed had to be taken into account and it did not matter
whether under the laws of the extradition country and New Zealand such acts or
omissions were ‘categorized or named’ differently, or whether the ‘constituent
elements’ of the offences which such acts or omissions might entail in the two
states differed, the focus was on the conduct of the offender and not on the
technical definitions of the possible offences of which the offender might be guilty,
in either state.
Double criminality in our case law
42. Our case law on the application of the principle of double criminality in extradition
matters has not been harmonious or consistent . Three of the decisions which
require consideration emanate from this division.
43. As was pointed out , both parties contend that the decision of the CC in 2003 in
Geuking, 64 is supportive of the position s they take. The appellants contend (with
reference to para 39 of the judgment) that it endorses an offence or elements -
based approach to the issue of double criminality, whereas the State contends
(with reference to para s 40 and 45) that, properly read, it endorse s a conduct-
based approach.
44. Geuking had been convicted in the then Federal Republic of Germany (‘the FRG’),
with whom SA did not have an extradition treaty, on 2 counts of fraud and arson
for which he was sentenced to imprisonment for a period of 2 years and 9 months.
He fled after his appeal was unsuccessful. Four years later the FRG filed a note
verbale with the SA authorities in which it requested the President to consent to
his extradition, in terms of s 3(2) of the Act, so that he could serve his sentence
and stand trial on a further 15 counts of fraud, to which request the President
acceded.

and stand trial on a further 15 counts of fraud, to which request the President
acceded.

63 Paras 35-36, 158 (citing Norris).
64 Note 23.

18

45. Pursuant thereto a warrant was issued for Geuking’s arrest, and he was brought
before the magistrate for an enquiry in terms of s s 9(1) and 10(1), to determine
whether he was liable to be surrendered . The DPP indicated that it intended to
submit a certificate from the German authorities in terms of s 10(2) of the Act, at
the enquiry. The section provides that for the purpose of satisfying himself that
there is sufficient evidence to warrant the prosecution of a person who is sought
to be extradited to a foreign state, the magistrate shall accept, as conclusive proof,
a certificate which appears to have been issued by a competent authority in charge
of the prosecution , which states that it has sufficient evidence at its disposal to
warrant such prosecution. Geuking then made application to this court for an order
reviewing and setting aside the President’s consent and declaring that the section
was unconstitutional. The court dismissed the application.
46. In his appeal to the CC , Geuking contended that whilst s 3(2) required the
President’s consent for an extradition it did not empower him to grant it, as this
was a function and power which was to be exercised by the Minister,65 and the fact
that the President had not been informed at the time when he gave his consent
that Geuking was a naturalized SA citizen, impugned the validity thereof. He also
contended that s 10(2) violated his constitutional right of access to court, as it
obliged the magistrate to commit him without being able to determine the merits of
any underlying dispute as to his culpability or extraditability.
47. The CC held that neither of the points that were raised could succeed. In relation
to the attack on s 10(2) Goldstone J pointed out that in terms of s 10(1) the
magistrate was required to consider the evidence which was put before him in an
extradition enquiry, and in order to issue a committal warrant had to be satisfied of

extradition enquiry, and in order to issue a committal warrant had to be satisfied of
and rule on, only two aspects viz that the extraditee was liable to be surrendered
to the foreign state and that there was sufficient evidence to warrant his
prosecution in that state.
48. To determine whether an extradite e (in a non -treaty case ) was liable to be
surrendered the magistrate in turn had to be satisfied that the President had
consented to his surrender and that the offences for which he was to be extradited,

65 In terms of s 11.

19

were extraditable ones. In this regard Goldstone J made reference to the definition
of an extraditable offence in s 1 of the Act, which, as previously pointed out, defines
it simply as an offence which in terms of the law of South Africa and of the foreign
state concerned, is punishable with a sentence of imprisonment for a period of 6
months or more , and does not say anything, expressly, as to how it must be
interpreted in relation to the requirement of double criminality.
49. In paragraph 39 of the judgment Goldstone J held that , as the determination of
whether an offence was an extraditable one (within the meaning of its definition in
s 1) required the magistrate to consider whether the evidence which was produced
by the foreign state would ‘constitute an offence’ under the law of the Republic ,
sufficient detail of the alleged offence which had been committed by the extraditee
would have to be placed before the magistrate. This could be done by way of a
deposition, or a statement under oath or affirmation. The magistrate would then
have to consider whether the evidence which had been so produced ‘constituted
an offence’ in terms of our law. To this point the comments made are consistent
with an offence -based approach and one can read the m as having been made
within the context of the preliminary threshold requirement in s 1 of the Act that, in
order to be extraditable offences in terms of the Act, the offences for which
extradition were sought were to be punishable in the FRG and SA with a sentence
of imprisonment of 6 months or more. To make this determination the magistrate
would obviously have to consider the definitional requirements of any possible SA
offence that was identified and the sanction that could be imposed for it.
50. However, in para 40 Goldstone J went on to say that the name of the offence would
not be determinative’ as the question for consideration was whether the ‘conduct’
which the evidence disclosed constituted an offence in our law which would be

which the evidence disclosed constituted an offence in our law which would be
punishable with a sentence of imprisonment for a period of 6 months or more.66 In
para 45 he went on to state that, from his earlier analysis as to what the magistrate
was required to consider it was clear that they had to be satisfied that the conduct
alleged by the foreign state constitutes criminal conduct in this country. If the
magistrate considered that the evidence which had been tendered did not disclose

66 Para 40.

20

criminal conduct under SA law that would be the end of the matter. On the face of
it, these comments are strongly supportive of a conduct -based approach being
applicable.
51. In dealing with Geuking it is important to point out, as is evident, that it concerned
a review of the decision of the President, made in terms of s 3(2) of the Act, to
consent to an ad hoc request for extradition of an alleged offender to a state with
whom SA did not have an extradition treaty. On this ground alone it is
distinguishable from treaty-based extraditions in terms of s 3(1), such as the one
in issue in this matter. In this regard, as was noted in the judgment 67 the grant of
presidential consent to an ad hoc request for extradition is a policy decision which
may be based on considerations of comity or reciprocity between SA and a
requesting state. The President may therefore grant consent to a request for
extradition purely out of comity, without the double criminality principle having to
be satisfied on the basis of reciprocity, on either a conduct-based approach (where
SA does not recognize that the conduct of the offender constitutes any offence in
terms of our law,) or an elements -based one (where we do no t have the same or
a substantially similar offence in our law).
52. In this regard, Geuking was not called upon directly to determine whether a
conduct or offence -based approach to double criminality applie d in our law, in
relation to either treaty -based extraditions in terms of s 3(1), or presidential
consent-based ones in terms of s 3(2). There is no indication that, in arriving at its
judgment, the CC had regard for the contents of any extradition treaties which SA
had entered into. Thus, as I read the judgment, whilst the remarks made in it favour
a conduct -based appro ach, they were obiter in relation to the issue of double
criminality and were not specifically directed at a determination of how the principle

criminality and were not specifically directed at a determination of how the principle
is to be satisfied in treaty-based extraditions. In my view, read in their context they
do not serve, unequivocally and clearly, to constitute authority for the adoption of
a conduct-based approach to the substance of the principle of double criminality
in treaty-based extraditions in SA.

67 Para 26.

21

53. In Van Rooyen 68 the Gauteng High Court held, on appeal in 2014 , that the
requirement of double criminality had been met as the 25 charges of wire fraud
and 26 charges of fraudulent misbranding of drugs , for which the appellant was
sought in the USA, corresponded with the common law offence of fraud in SA.
Thus, it appears that the court adopted an elements-based approach in that matter.
54. In Carolissen, 69 a 2016 decision of this court (per Gamble J, Donen AJ concurring),
an appeal against an order that was made by the magistrate of Kuilsriver which
held that the appellant was liable to be extradited to the USA to stand trial in a
federal court in Maine on three counts of the sexual exploitation of a minor 70 and
five counts of the transportation of child pornography , was unsuccessful. 71 The
case which was put up by the US authorities in their request for extradition was
that the appellant had sexually molested and raped several children in SA and had
manufactured child pornography in SA which he distributed to persons in the USA.
After the appellant’s arrest on the US warrant the SAPS opened a local case
against him on charges pertaining to sex ual offences against children and the
manufacturing, possession and distribution of child pornography.
55. In considering whether double criminality was established Gamble J referred, with
approval, to the opinion expressed by Prof Dugard 72 (an eminent SA scholar and
authority on international law ), that although the principle requires that conduct
which is alleged to be an extraditable offence should constitute a crime in both the
requesting and requested state, it is not necessary that they should have the ‘same
name’, and it is sufficient if they are ‘substantially similar’ , an approach which
Gamble J understood was supported by the dictum of Goldstone J in Geuking (at
para 40). However, Goldstone J did not advocate for a ‘substantially similar’ test in

para 40). However, Goldstone J did not advocate for a ‘substantially similar’ test in
Geuking, and as will be apparent from the earlier discussion of the decision of the
House in Norris,73 enquiring whether an offence in a requested state is

68 Van Rooyen v S [2014] ZAGPJHC 177; 2014 JDR 1583 (GJ) paras 31-32.
69 Note 25.
70 In violation of title 18 USC SS 2251 (c) and (e).
71 Contra S 2252A(a)(1) of the USC.
72 International Law: A South African Perspective 4th Ed at 219
73 Norris n 15 para 67 referring to In re: Nielsen [1984] AC 606 and Government of the USA v McCaffery [1984]
1 WLR 867.

22

‘substantially similar’ to the one specified in an extradition request by a requesting
state, is not the question to be asked if one adopts a conduct-based approach to
double criminality. It is the question which is asked when applying an elements or
offence-based approach.
56. In Carolissen the selfsame treaty which is in issue in this matter was operative ,
and Gamble J cited the contents of article 2.3(a) thereof , which provide that an
offence shall be an extraditable one whether or not the laws of the requesting state
and of the requested state ‘place’ it ‘within the same category ’ of offence s or
describe it by the ‘same terminology’. In his view the wording was in line with the
trend which was followed by the US in its extradition treat ies. 74 Notwithstanding
this wording he referred to comments made by Michael Abbell, 75 an American
writer and former official in the US Department of Justice, that, while dual
criminality did not require that the provisions of the statutes of the USA and the
requesting country should be identical in relation to the offences they criminalized
in each state, they had to be ‘substantially analogous’, or directed at ‘functionally
identical conduct’. Whilst saying that statutory provisions in the requesting and the
requested state should be directed at ‘functionally identical conduct’ favours a
conduct-based approach, saying that they should be ‘substantially analogous’
seems to me to favour an elements-based one.
57. After setting out the provisions of the statutory molestation/rape offences for which
the appellant was sought in the USA, in terms of title 18 of the USC, and comparing
them with ss 20(1) and 20(2) of our Criminal Law (Sexual Offences and Related
Matters) Amendment Act (‘SORMA’), 76 Gamble J was of the view that the SA
legislation corresponded with the American, by criminalizing ‘similar conduct’.77 In
relation to the pornography charges he was of the view that the appellant would

relation to the pornography charges he was of the view that the appellant would
be liable in SA under the Films and Publications Act,78 for contraventions that were
‘similar in substance’ to offences under which the US sought to indict him.79 Thus,

74 Paras 53-54.
75 Extradition to and from the United States (2010), at 215.
76 Act 32 of 2007.
77 Para 58.
78 Act 65 of 1996.
79 Para 64.

23

as I understand the judgment in Carolissen, it effectively applied a ‘substantially
similar’ offence approach i.e. an elements-based approach as well as a conduct -
based one, or a mixture of the two.
58. In Patel,80 (which was also heard in 2016) , the SCA confirmed that the double
criminality principle was central to extradition law and that an extradition under our
Act and the USA -SA treaty must be determined on the basis thereof and the
threshold requirement of a minimum punishment of imprisonment for a year or
more. The SCA did not pronounce what the applicable test was for determining
how, and whether, the principle is established in an extradition application.
59. The appellant in that matter sought to avoid extradition to the USA on 12 counts of
‘structuring’, a statutory offence which is committed by making numerous, small
deposits of cash into bank accounts, rather than single, large deposits which would
require reporting to the authorities. The appellant contended that as the offences
had allegedly been committed in the USA between 2005 and 2007, and the
corresponding offences in this country 81 only c ame into being in 2010, the
necessary requirement of double criminality had not been met. The question that
required determination was whether double criminality should exist at the time of
the commission of the offences for which extradition is sought, or whether it would
be sufficient if it was present at the time of the request for extradition.
60. The SCA held that, with a view to providing more effective co-operation between
SA and the USA in the fight against crime, double criminality needed to be present
as at the date of the request for extradition and not on the date on which the
offences were allegedly committed in the requesting state. Consequently, it held
that the appellant had correctly been held liable for surrender to the USA.
61. The two remaining decisions which must be considered were handed down in

61. The two remaining decisions which must be considered were handed down in
2025, by courts of this division. In Wares,82 Gamble J (with Henney J concurring),
had occasion to revisit the application of the double criminality principle. The
appellant was sought for extradition to the UK, in terms of the EU Convention, on

80 Note 4 paras 8 and 16.
81 In terms of the Financial Intelligence Centre Act 38 of 2001.
82 Wares v Additional Magistrate, Simonstown, Cape Town & Ors 2025 (1) SACR 130 (WCC).

24

several charges of ‘lewd and indecent practices and behaviour’ in terms of Scottish
Law, which had allegedly been perpetrated on teenage boys.
62. Gamble J rejected the appellant’s contention that the test for double criminality in
extraditions in terms of the Convention was an elements-based one, because of
article 14(3) of the Convention. The article provides that when the description of
an offence with which an extraditee is charged, is altered during the course of
proceedings, the extraditee should only be prosecuted insofar as the offence ,
under its new description , is shown by its ‘constituent elements’ to be one which
would allow extradition. He held that, properly construed, the provision had nothing
to do with double criminality and was akin to one that dealt with the amendment of
a charge-sheet. Given that article 14 deals with the rule of speciality i.e. the rule
that an extraditee may not be prosecuted or sentenced for an offence other than
the one for which he has been extradited, Gamble J’s interpretation of article 14.3
was undoubtedly correct.
63. As far as double criminality was concerned, he went on to state83 that, in his view,
based on the remarks that were made (by Goldstone J) in Geuking 84 and (by him)
in Carolissen, the conduct or ‘fact’-based approach was settled law in SA. As the
appellant had readily admitted before the extradition magistrate that the criminal
conduct with which he was to be charged in the UK constituted the offences of
sexual assault and rape in our law in terms of SORMA, 85 double criminality had
therefore been shown. Thus, in this matter a conduct -based approach was
followed.
64. The final matter which needs to be dealt with is that of DPP, Western Cape v
Louie,86 a decision (per Saldanha et Slingers JJ) in December 2025, in which the
appellant was sought for extradition to the USA on several counts of conspiracy
pertaining to ‘drug trafficking’ , concerning the importation, possession and

pertaining to ‘drug trafficking’ , concerning the importation, possession and
distribution of Buphedrone, a synthetic drug, contrary to the provisions of the US
Controlled Substances Act ; and money laundering in relation to the proceeds

83 Para 76.
84 In paras 39-40 read with para 44.
85 Para 80.
86 Director of Public Prosecutions, Western Cape v Louie [2025] ZAWCHC 598; 2026 (1) SACR 345 (WCC).

25

thereof. Although Buphedrone is not classified as a dangerous, dependence -
producing or ‘banned’ substance in terms of SA legislation, the State tendered
evidence from a forensic analyst that it is ‘homologous’ i.e. chemically related, to
Cathinone, a substance which is.
65. The magistrate discharged the appellant on the grounds that the necessary double
criminality had not been shown. In reversing this decision and declaring that the
appellant was liable to be extradited the court referred 87 to the same comment by
Prof Dugard, which the court in Carolissen referred to i.e. that although double
criminality requires that the conduct of an offender should constitute a crime in both
the requesting and in the requested state, it is not necessary that the crimes in
both states should have the ‘same name’, and it will suffice if they are ‘substantially
similar’. The court held that, given the forensic evidence which was tendered as to
the chemical connection between Buphedrone and Cathinone, the SA offence was
‘substantially similar’ to the US offence and double criminality had therefore been
established.88 In the circumstances an elements-based approach was adopted in
this matter, contrary to the decision in Wares.
An assessment
66. From the aforegoing analysis of foreign and domestic law, the following
conclusions can be drawn. In the first place, unlike legislation in the UK and other,
primary commonwealth countries, our old-order extradition Act, which dates from
1962, does not define what constitutes an extraditable offence , based on, or with
reference to the conduct of an offender for whom extradition from or to SA is
sought. In terms of our Act an extraditable offence is defined only in relation to a
minimum punishment of imprisonment which must apply to it, in terms of our law
and that of the foreign state concerned. In its formulation the definition mirrors, and
is as anodyne, as that adopted by the EU Convention.

is as anodyne, as that adopted by the EU Convention.
67. Whereas old-order extradition statutes in the UK were construed as providing for
an elements/offence-based approach in determining whether the principle of
double criminality has been satisfied, more recent iterations thereof and those in

87 Para 34.
88 Para 76.

26

other primary commonwealth jurisdictions , including Australia, New Zealand and
Canada, have been interpreted by the highest courts of those countries as opting
for a conduct-based approach. As will be apparent from the discussion above and
from what follows , in the formulations of their extradition legislation the se
jurisdictions essentially adopted the terms of the UN Model Treaty. So have
numerous European and Asian countries.
68. Our Act allows for two forms of extradition : either in terms of an extradition treaty
which we have entered into with a foreign state, or, where there is no treaty in
place, pursuant to presidential consent which is provided on an ad hoc basis.
69. As far as the principle of double criminality is concerned, on the basis solely of the
definition of what constitutes an extraditable offence in terms of s 1 thereof, our Act
allows for the adoption of either approach, in either form of extradition we allow i.e.
in extradition treaties we conclude, or in ad hoc extraditions which we agree to. In
the circumstances, and in both forms of extradition, whether an elements/offence-
based approach or a conduct-based approach to satisfying the principle of double
criminality applies, will depend on the terms of the underlying agreement which
has been entered into, either as per the treaty we have concluded or as per the ad
hoc agreement granting presidential consent.
70. As we were not provided with any information as to the terms of any requests that
have been made in, and ad hoc presidential consents that have been granted
pursuant to, extradition requests in non-treaty cases, we are unable to say which
of the two approaches to double criminality has been adopted in such instances,
and whether there is a single, consistent pattern thereto . Given that ad hoc
presidential consent extraditions would pertain to requests for surrender of
individuals in respect of offences which are not specified in a treaty, it is as possible

individuals in respect of offences which are not specified in a treaty, it is as possible
that they were granted on the basis of an elements-based approach, as a conduct-
based one.
71. As to whether there is a discernable pattern regarding the approach which has
been followed in treaty -based extraditions, the treaty which is in issue in this
matter, which came into force on 29 June 2001, appears to be the second
extradition treaty SA concluded post our transition to a constitutional state, a month

27

after the one we entered into with Canada .89 Thereafter we concluded extradition
treaties with the following countries, which came into force on the dates listed in
parentheses: Australia (1 August 2001),90 Lesotho (15 November 2001), 91 Egypt
(14 November 2002), 92 the EU Convention ( acceded to on 13 May 2003), the
Republic of China (1 November 2004), 93 India (16 November 2005), 94 Korea
(signed on 3 May 2007 but not yet in force ), Hong Kong (2 December 2011), 95
Argentina (14 July 2017),96 and the UAE (10 July 2021).97
72. Save for the EU Convention and the Hong Kong treaty, from a perusal of the terms
of the other treaties we have entered into it appears they all largely follow, in almost
identical format and wording , the UN Model Treaty on extradition, which sets out
conditions which will apply as a conduct-based approach to double criminality.
73. To this end article 2.1 of the Model Treaty provides that an extraditable offence is
one which is punishable under the laws of the parties by imprisonment for a period
of at least 2 years or more and article 2.2 provides that, in determining whether an
offence is so extraditable, it shall not matter whether the laws of the parties (a)
place ‘the acts or omissions constituting the offence ’ (i.e. the offender’s alleged
conduct) within the ‘same category ’ of offences or ‘denominate it by the same
terminology’ (b) whether under the laws of the parties the ‘constituent elements’
of the offences differ, it being ‘understood’ that the totality of the acts and omissions
as presented by the requesting state shall be taken into account.
74. The extradition treaties we concluded with Canada, Australia, and Argentina have
adopted variations of both sub-provisions of article 2.2 in their formulation. Those
we concluded with the USA (the one which is in issue in this matter), Egypt, Hong
Kong and the UAE, differ somewhat, and none of them expressly incorporate the

89 GG 7063 18 May 2001
90 GG 7132 1 August 2001.

89 GG 7063 18 May 2001
90 GG 7132 1 August 2001.
91 GG 26375 28 May 2004.
92 GG26497 2 July 2004.
93 GG 27168 21 January 2005.
94 GG 28680 7 April 2006.
95 GG 35640 30 August 2012.
96 GG 40978 14 July 2017.
97 GG 46164 1 April 2022.

28

provisions of article 2 .2(b) of the Model Treaty , which refer s to the constituent
elements of offences.
75. The question that arises from this is whether, because the treaty in this matter does
not pertinently include a reference to the constituent elements of the offences in
the requesting and requested states in extraditions between SA and the USA, it is
open to an interpretation that it advocates an elements -based approach and
excludes a conduct-based one.
76. In answering this question, the following principles of interpretation are applicable.
In the first place, as was pointed out in Patel, 98 as one is dealing with a treaty its
terms are to be interpreted in accordance with the principles of interpretation that
are set out in articles 31 and 32 of the Vienna Convention on the Law of Treaties,
which was adopted by the UN in May 1969 and came into force in January 1980.
77. Article 31(1) provides that a treaty shall be interpreted in good faith in accordance
with the ‘ordinary meaning’ which is to be given to its terms ‘in their context and in
the light of its object and purpose’. Article 31(2) provides that the context shall , in
addition to the text , w hich incorporates its preamble and annexes, include any
agreement or instrument relating to the treaty which was made by the parties, in
connection with its conclusion. Article 32 provides that in order to confirm the
meaning of a treaty, resulting from the application of article 31, or to determine its
true meaning when an interpretation according to article 31 leads to an ambiguous
or obscure meaning or a result which is manifestly absurd or unreasonable, regard
may be had to supplementary means of interpretation, including the preparatory
work of the treaty and the circumstances leading up to its conclusion.
78. It will be evident that the interpretive principles set out in articles 31 and 32 coincide
substantially with those that are applicable in our law, to the interpretation of any

substantially with those that are applicable in our law, to the interpretation of any
agreement or statutory instrument , as set out in the oft -cited decision in
Endumeni.99 In this regard, as recently summarized in Amabhungane 100 the
method that applies is to start with the words, affording them their ordinary

98 Note 4 para 35.
99 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) para 18
100 Amabhungane Centre for Investigative Journalism NPC v President of the Republic of South Africa 2023 (1)
SA 1 (CC) para 36.

29

meaning, bearing in mind that the statutory provision should always be interpreted
purposively, properly contextualized, and construed consistently with the
Constitution. Context may be determined by considering other subsections,
sections, or the chapter in which the key word or expression to be interpreted is
located, and the statutory instrument as a whole. A sensible interpretation should
be preferred to one that is absurd or which leads to an unbusinesslike outcome.
79. In the second place, our interpretation must, as far as possible, be compliant with
international law, 101 and in the interests of comity, must be such as to give the
widest possible effect to our international obligations in terms of the Treaty.
80. Thirdly, our interpretation must be consistent with the Constitution, and thus insofar
as the fundamental human rights of freedom of movement, liberty and dignity are
implicated, our interpretation must be one that gives consideration to international
and foreign law, and promotes the values that underlie an open and democratic
society based on dignity, equality and freedom.102
81. As there is no ‘and’ or ‘or’ between sub-articles 2.2(a) and (b) of the UN Model
Treaty, it is not apparent w hether the two provisions are to be read conjunctively
or disjunctively. On my reading of the article as a whole, a sensible interpretation
requires that they are to be read disjunctively. I arrive at such an interpretation
because of the injunction at the end of article 2.2(b), that the ‘totality of the acts or
omissions’ as presented by a requesting state must be taken into account. The
injunction would not make sense if it were only to apply to article 2.2(b) and not to
article 2.2(a), as article 2.2(a) also makes refence to ‘acts and omissions’. The
‘acts or omissions’ contemplated in sub-article 2.2(a) are those which constitute
the offence, and thus pertain to the conduct of an offender, whereas those referred

the offence, and thus pertain to the conduct of an offender, whereas those referred
to in sub-article 2.2(b) pertain to the constituent elements of the offence the
offender is alleged to have committed. Thus, as I understand it , the intention was
to make article 2 applicable in requesting and requested states, even if the
formulation of their laws allow for differing c onduct and elements -based

101 Glenister v President of the Republic of South Africa [2011] ZACC 16; 2011 (3) SA 347 (CC) para 97;
National Commissioner of Police v South African Human Rights Litigation Centre & Ano [2014] ZACC 30; 2015
(1) SA 315 (CC) para 22.
102 Sections 39(1) and (2) of the Constitution.

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interpretations of extraditable offences, so there will be no disjunct in its application
in and between the two states.
82. There is an important difference between the wording of article 2.3(a) of the treaty
in this matter, which provides that an offence shall be an extraditable one whether
or not the laws in the requesting and requested states place the offence within the
same category of offences or ‘describe the offence by the same terminology ’ i.e.
its denomination, and that of article 2.2(a) of the UN Model Treaty, which provides
that it shall not matter whether the acts or omissions constituting the offence i.e
the conduct of the offender , fall within the same category of offences , or the
offences are denominated by the same terminology.
83. Thus, the wording of article 2.3 (a) of the Treaty is aimed at excluding differences
pertaining to the definitions, and therefore the constituent elements of, the offences
in the two states, whereas that in the wording of article 2.2(a) of the Model Treaty
is aimed at excluding differences pertaining to the conduct of the offender.
84. On my understanding, by stipulating in the Treaty in issue that differences
pertaining to the categorization and denomination of offences shall not matter
when determining whether an offence listed by a requested state in an application
for extradition is an extraditable one, the contracting parties intended to exclude
any differences in the elements or ingredients of the offences in their states. This
means that, contrary to the conclusion that was arrived at by the magistrate, they
intended to exclude the elements/offence-based approach in extraditions between
the USA and SA and implicitly intended that the conduct -based approach should
apply.
85. That the intention was to adopt a conduct-based approach to USA/SA extraditions
in terms of the Treaty and not an elements -based one , is supported by article
2.3(b), which provides that an offence shall be an extraditable one whether or not

2.3(b), which provides that an offence shall be an extraditable one whether or not
it is one for which US federal law requires the ‘showing of such matters ’ as
‘interstate transportation’ or the use of the ‘mails or of other facilities affecting
interstate or foreign commerce’, and such matters are to be considered as ‘being
merely for the purposes of establishing jurisdiction’(sic), in a US federal court.

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86. In the indictments which charged the appellants with conspiracy to commit money
laundering it is alleged that, in violation of Section 1956 of Title 18 of the US Code,
they unlawfully conducted financial transactions affecting interstate and foreign
commerce which involved the proceeds of the unlawful activity of wire fraud, which
was committed by way of the internet, thereby transportin g monetary instruments
or funds pertaining to such activity from the USA to, or through, places outside of
it.
87. Given that in terms of a rticle 2.3(b) of the Treaty the elements of interstate
transportation and the use of mail facilities and those affecting interstate or foreign
commerce as alleged in the charges the appellants are facing were not relevant to
the determination of whether they were to be surrendered for extraditable offences
(other than to establish the jurisdiction of the courts to which they were to be
extradited), this too is an indication that the intention of the parties was to exclude
an elements-based approach to the issue of double criminality.
88. Insofar as the magistrate relied on the SA -Hong Kong extradition treaty to arrive
at her conclusion, as in the case of all the other treaties SA has entered into it
contains a minimum punishment threshold of imprisonment (in casu for a period of
a year or more).103 Article 2(1) of the treaty goes on to provide that extradition shall
be granted for an offence which ‘comes within the descriptions’ (sic) of a long list
of specified offences, ranging from offences against persons (including genocide,
murder, manslaughter, trafficking and sexual offences of rape and sexual assault),
to offences pertaining to property (such as theft, robbery, burglary, embezzlement,
extortion), or ‘fiscal matters’ involving fraud, forgery or uttering, bribery, corruption,
securities and futures trading and bankruptcy and insolvency contraventions.
89. At first blush, given the wording of article 2 and its reference to the ‘descriptions of

89. At first blush, given the wording of article 2 and its reference to the ‘descriptions of
offences’, it would seem to suggest that an elements -based standard was to be
applicable. However, what the magistrate was not alerted to is that article 2(3)
provides that for the purposes of the article as a whole, the totality of the acts or
omissions alleged are to be taken into account, without reference to the elements
of the offences presented by the law of the requesting state. In addition, article 2(4)

103 Article 2(1).

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provides that an offence shall be an offence against the law of both parties if the
conduct constituting the offence was an offence against the law of the requesting
party at the time it was committed and an offence against the law of the requested
state at the time of the request for the surrender of the offender. Thus, the SA -
Hong Kong treaty has also adopted a conduc t-based approach to double
criminality.
90. In the result, in my view the USA -SA Treaty, which is in issue in this matter ,
envisages that a conduct -based approach is to be adopted when considering
whether the double criminality principle has been satisfied in any extradition
request as between the USA and SA.
91. In the application of such an approach, in accordance with the test which has been
adopted by the courts of the UK, Australia, New Zealand and Canada, and the UN
Model Treaty, the conduct of the offender i.e. the totality of the acts and/or
omissions they are alleged to have committed in the requesting state must be
taken into account, not the description or denomination of the offences which they
are alleged to have committed and for which extradition is sought, in and in terms
of, the laws of the requesting state. If such conduct, had it been committed in the
requested state, would constitute an offence in terms of the laws of the requested
state, double criminality will be established. In applying this approach, the focus is
to be on the nature of the conduct 104 of the offender and not upon the name or
elements of the offence in either state. Thus, whether the laws of the two states
categorize or denominate the offences which the offender may be guilty of, in their
jurisdictions, as the same , or substantially similar or analogous insofar as their
constituent elements are concerned, is not required or relevant.
92. In the circumstances, in our view the ‘substantially similar’ offence test or approach
which was adopted in Carolissen and Louie, was not the correct one.

which was adopted in Carolissen and Louie, was not the correct one.
93. From a consideration of the contents of all the other extradition treaties that SA
has entered, into, as referred to above (save for the EU Convention, whose terms
as to what constitutes an extraditable offence correspond with those in our Act and
do not expressly reference the formulations set out in the UN Model Treaty), it is

104 Ortmann n 5 para 158.

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evident also that a conduct-based approach is generally followed in our country, in
treaty-based extraditions.
94. Given this, we suggest that the method which magistrates should follow when
holding an extradition inquiry105 as to whether a person is liable to be extradited to,
or from, a foreign state with whom we have entered into any of the treaties referred
to above, should be that which was propounded by the Supreme Court of New
Zealand in Ortmann. 106 This requires that the magistrate determine the issue of
double criminality, by asking three questions, to wit 1) does the conduct relied upon
by the requesting state constitute an extraditable offence as defined in the treaty
2) does such conduct constitute an offence in the requesting state, which is
punishable in such state, with a sentence of imprisonment equal to or in excess of
the minimum threshold prescribed 3) had the conduct alleged to constitute the
offence in the requesting state, occurred in the requested state, would it be
punishable in such state with a sentence of imprisonment equal to or in excess of
the minimum threshold prescribed.
95. By applying this method and having regard for the documents filed in support of
the request for the appellants’ surrender, we arrive at the following conclusions.
The alleged conduct of the appellants i.e. the acts and omissions that make it up,
were committed over the internet, across both the USA and SA, from residences
in SA. These acts and omissions constitute extraditable offences in terms of article
2 of the Treaty. In the USA they constitute the offences specified in the indictments
viz wire fraud an d aggravated identity theft, and a conspiracy to commit such
offences, as well as money laundering, in terms of various sections of title 18 of
the US Code, all of which are punishable with terms of imprisonment in excess of
one year.
96. The fact that SA does not have statutory offences of wire fraud and aggravated

one year.
96. The fact that SA does not have statutory offences of wire fraud and aggravated
identity theft is immaterial. The alleged conduct of the appellants, in ‘stealing’ the
identities of other persons and using them to establish false online personas, to
enable them to make false misrepresentations and thereby induce victims in the

105 In terms of s 10 of the Act.
106 Id para 151.

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USA and elsewhere to part with sums of mon ey to their prejudice, which was
largely committed from and within SA, constitutes in SA 1) the common law offence
of fraud and 2) statutory offences of cyber fraud and cyber forgery and uttering, in
contravention of various provisions107 of the Cybercrimes Act, 108 which, given the
nature and seriousness of the offences and the amounts involved, would merit
sentences of imprisonment well in excess of one year. 109 The alleged conduct of
the appellants in ‘laundering’ the proceeds which they derived from these unlawful
activities, through various bank accounts, and structures and entities in various
countries, had it been committed in SA (if it was not) , would constitute
contraventions of the Prevention of Organized Crime Act, 110 for which sentences
of imprisonment of up to 30 years may be imposed.
97. In the circumstances, the magistrate correctly held that the appellants were liable
to be surrendered to the USA, albeit for the wrong reasons.
98. In the court a quo the appellants advanced several additional complaints relating
to the lawfulness of domestic search and seizure operations, the admissibility of
evidence, and their wrongly alleged association, by the US authorities , with an
international criminal organization the Neo Black Movement of Africa (NBMA), also
known as ‘Black Axe’. The appellants contend ed that the Neo Black Movement
was a legitimate Pan African organization to which they belonged which has, as its
principal objects and tenets , the promotion and support of African culture and
values and was not a criminal organization or association which is affiliated with,
or which is part of, the Black Axe movement.

107 Section 8 provides that a person who unlawfully and with intent to defraud makes a misrepresentation (a)
by means of a data or computer program or (b) through any interference with data or a computer program,

data storage medium or computer system; which causes actual or potential prejudice to another, is guilty of
an offence. Section 9(1)(a) provides that any person who unlawfully and with intent to defraud makes false
data to the actual or potential prejudice of another person, is guilty of the offence of cyber forgery; and in
terms of s 9 2) if they pass off false data to the actual or potential prejudice of another, they shall be guilty of
cyber uttering.
108 Act 10 of 2020.
109 In terms of s 19(4) of the Cybercrimes Act, a contravention of ss 8 or 9 thereof is punishable with such
sentence of imprisonment or other punishment, as may be considered appropriate, in terms of s 276 of the
Criminal Procedure Act 51 of 1977.
110 Section 4, read with s 2 of Act 121 of 1998, which makes it an offence to conceal or disguise the nature,
source, location, disposition, or movement of property which is the proceeds of unlawful activities.

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99. These matters d id not fall within the scope of the s 10 enquiry. As held in
Robinson,111 the magistrate was not empowered to determine the admissibility or
reliability of the evidence which was tendered , or to adjudicate any alleged
constitutional infringements arising from the conduct of local law enforcement
authorities. Those issues are for the trial court in the requesting state or, where
appropriate, for the Minister’s consideration under s 11.
100. The evidence which formed the basis of the request for extradition was obtained
and certified prior to the appellants’ arrest in S A. Allegations concerning the
manner of the appellants’ arrests, the execution of the arrest warrants, and the
seizure of the appellants’ devices therefore d id not affect the validity of the
documents that were tendered by the US authorities . Likewise, the alleged
wrongful conflation of the appellants’ membership of NBMA with an international
criminal organization known as ‘Black Axe’, d id not affect the validity of the
processes that were followed in terms of the Act. It appeared only as background
to the narrative which was set out by the US authorities and did not form part of
any of the essential elements of the charges for which extradition was sought.
101. In our view, none of these residual complaints establish procedural unfairness or
undermine the magistrate’s orders under s 10(1).
102. Finally, before proceeding to make the appropriate order, it may be pointed out that
although in their notices of appeal the appellants sought to contend 1) that the
magistrate erred in accepting the certificates that were tendered by the US State
Attorneys in terms of s 10(2) of the Act, as conclusive proof that the US authorities
have sufficient evidence at their disposal to warrant their prosecution and 2) that
in effect s 10(2) was unconstitutional, as it may not allow offenders to contest
bogus or fal se certificates which are totally unfounded , during the hearing of

bogus or fal se certificates which are totally unfounded , during the hearing of
argument the appellants’ counsel indicated that they were no longer proceeding
with these grounds of appeal. There is, accordingly, no need for us to deal with
them. Whilst logic and fairness dictates that there may be instances where an
extraditee should not be irrefutably bound to a s 10(2) certificate (in Fischbacher112

111 Director of Public Prosecutions Cape of Good Hope v Robinson 2005 (4) SA 1 (CC) paras 51 and 71.
112 Note 2 para 40.

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the Canadian Supreme Court suggested this could be where the underlying
evidence tendered in support of a certificate is so defective or appears to be so
unreliable that it would be 'dangerous or unsafe' to act on it), this is not one of
them.
103. In the result we make the following order:
1. First, Third, Fourth, Fifth, Sixth and Eighth Appellants' appeal against the order
which was made by the magistrate of Cape Town on 19 February 2024 in
terms of s 10(1) of the Extradition Act, 67 of 1962 ('the Act'), whereby 1) it was
held that they are liable to be extradited to the United States of America and
2) they were committed to prison whist awaiting the decision of the Minister of
Justice and Constitutional Development as to their surrender, is dismissed.
2. The Registrar shall provide a copy of this judgment to the magistrate of Cape
Town, for inclusion in the record of the proceedings which were held in the
extradition enquiry in terms of s 10 of the Act, which record is to be submitted
to the Minister by the magistrate together with such report as may be
necessary, in terms of s 10(4 ).
MSHER
Judge of the High Court

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A BHOOPCHAND
Acting Judge of the High Court
Appearances :
Appellants' counsel: J Van der Berg
Appellants' attorneys: Liddell, Weeber & Van Der Merwe Inc (Cape Town)
Respondent's counsel: LJ Badenhorst (OPP, Cape Town)