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[2019] ZASCA 82
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Mochebelele v Director of Public Prosecutions, Gauteng and Others (377/2018) [2019] ZASCA 82; 2019 (2) SACR 231 (SCA) (31 May 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 377/2018
In the matter
between:
REATILE
THABO
MOCHEBELELE
APPELLANT
and
DIRECTOR
OF PUBLIC PROSECUTIONS
GAUTENG
LOCAL DIVISION,
JOHANNESBURG FIRST
RESPONDENT
MAGISTRATE,
RANDBURG SECOND
RESPONDENT
THE
GOVERNMENT OF THE KINGDOM
OF
LESOTHO THIRD
RESPONDENT
Neutral
citation:
Mochebelele
v Director of Public Prosecutions, Gauteng & others
(377/2018)
[2019] ZASCA 82
(31 May 2019)
Coram:
Wallis,
Makgoka and Schippers JJA and Plasket and Gorven AJJA
Heard:
21
May 2019
Delivered:
31
May 2019
Summary
:
Enquiry in terms of s 10 of the Extradition Act 67 of 1962 –
powers of magistrate – whether magistrate entitled to
consider
extraneous factors – Minister’s powers in terms of s 11
of the Extradition Act.
ORDER
On
appeal from:
Gauteng
Local Division, Johannesburg (
Matojane
J sitting as court of first instance):
1
Save
to the extent reflected in paragraph 2 hereof, the appeal is
dismissed with costs.
2 The order of the
court a quo is substituted with the following:
‘
1
The order of the magistrate Randburg dated 16 November 2012,
discharging Mr Reatile Thabo Mochebelele in terms of section 10(3)
of
the Extradition Act 67 of 1962, is set aside.
2 A warrant of
arrest is hereby authorized against the said Mr Reatile Thabo
Mochebelele, who is to be committed to prison to await
the decision
of the Minister of Justice and Correctional Services with regard to
his surrender to the Kingdom of Lesotho.’
3 The Registrar of
this court is directed to forward to the Minister of Justice and
Correctional Services a copy of the record of
proceedings in the
Randburg Magistrates’ Court, together with a copy of the
judgments of the magistrate, the Gauteng Division
of the High Court,
Johannesburg, and this court.
JUDGMENT
Makgoka
JA (Wallis and Schippers JJA and Plasket and Gorven AJJA
concurring):
[1]
The appellant,
Mr Reatile Thabo Mochebelele, a Lesotho national, appeals, with leave
of this court, against the judgment and order
of the Gauteng Division
of the High Court, Johannesburg (the court a quo). That court upheld
an appeal by the first respondent,
the Director of Public
Prosecutions, Johannesburg (the DPP) and set aside an order by the
second respondent, the magistrate Randburg,
discharging the appellant
in terms of s 10(3) of the Extradition Act 67 of 1962 (the Act).
Instead, the court a quo ordered that
the appellant is liable to be
surrendered to the Kingdom of Lesotho to serve a prison sentence in
that country.
[2]
The appellant
was convicted of the offence of bribery after an appeal to the Court
of Appeal of Lesotho on 17 October 2008. On 10
December 2009 he was
sentenced to an effective five years’ imprisonment. The case
against him and a co-accused arose from
their involvement with a
German company in the implementation of the Lesotho Highlands Water
Project. By the time he was sentenced,
the appellant had fled to
South Africa, and he was sentenced in his absence. He applied for
refugee status, which was refused by
the Refugee Status Determination
Officer on 4 December 2009.
[3]
In a
note
verbale
dated 25
February 2010 the third respondent, the Kingdom of Lesotho (the
Lesotho government) requested the Republic of South Africa
to
extradite the appellant ‘in order to effect the enforcement’
of a sentence imposed on him. The request was made
in terms of the
extradition treaty between South Africa and the Lesotho government
signed on 19 April 2001 and subsequently ratified
by South Africa on
29 November 2003.
[4]
Pursuant to that
request, the appellant was arrested in terms of s 5(1)(
b
)
of the Act on 10 March 2010. He first appeared in court on 12 March
2010 and remained in custody until his discharge by the magistrate.
On 23 November 2010, while the extradition proceedings were under
way, the appellant’s appeal to the Refugee Appeal Board
against
the decision of the Refugee Status Determination Officer, referred to
in paragraph 2 above, was dismissed. The appellant
then
launched an application in the then North Gauteng High Court to
review the dismissal of his refugee status application.
[5]
That application
was still pending when the appellant was discharged, but was
subsequently dismissed on 17 March 2014. The appellant’s
application for leave to appeal against that order was dismissed by
the high court on 19 September 2014. His further application
for
leave to appeal to this court was dismissed on 20 February 2015, and
so was his application to the Constitutional Court, on
13 May 2015.
[6]
On 16 September
2015 the appellant filed a notice with the African Commission for
Human and Peoples’ Rights (the African Commission)
in the
Gambia. In that notice, the appellant sought an order among others,
that the South African government grant him refugee
status. This was
based on his assertion that his trial and conviction in Lesotho
amounted to political persecution. That application
was still pending
when this matter was determined in the court a quo.
[7]
There is a
preliminary issue of condonation. The DPP was late in filing its
review application. As already stated, the impugned
order was granted
on 16 November 2012. The review application was only launched on
11 August 2015, some two and half years
after the event. The
explanation was essentially that the delay was occasioned in the
Randburg Magistrates’ court, among
others by the resignation of
the magistrate who heard the extradition application, and the backlog
in the office of the clerk of
the court. This delayed the preparation
of the record.
[8]
The court a quo
accepted the explanation and granted condonation. In this court,
counsel for the appellant asserted that there was
insufficient
explanation for the delay, and that the court a quo erroneously
granted condonation. Counsel initially submitted that
the order of
the magistrate amounted to administrative action. If so, the DPP
would have been required, in terms of s 7 of the
Promotion of
Administrative Justice Act 3 of 2000 (the PAJA) to have launched the
review application no later than 180 days after
the date of it
obtaining knowledge of the impugned order. However, after debate with
the bench, counsel accepted the proposition
that the PAJA is not
applicable, and therefore the condonation application should be
determined on the common law basis.
[9]
It is now well settled
that in considering applications for condonation, the court has a
discretion, to be exercised judicially
upon a consideration of all of
the facts. In essence it is a question of fairness to both sides.
[1]
In the present case, one must adopt a practical and sensible
approach. Although the delay was admittedly inordinate, the DPP
cannot
be blamed for it. Like any litigant, it had to grapple with
the bureaucratic bottle-necks and ineptitude in the office of the
clerk
of the court in the Randburg Magistrates’ Court. Perhaps
the DPP could have been more persistent and made enquiries with
greater frequency than it did. Even if the DPP must shoulder some
blame, that is not so of the Lesotho government. It was not a
party
to the application, and had absolutely no power to do anything about
the delay.
[10]
Furthermore, in the
ultimate end, the delay has not occasioned any prejudice to the
appellant. Instead, it enured to his benefit.
By the time the
impugned order was made on 16 November 2012, the appellant’s
application to review and set aside the refusal
to grant him refugee
status was still pending in the high court. The high court delivered
its judgment in that application on 17 March
2014. The appellant
sought leave to appeal that decision, culminating in the dismissal of
his application for leave to appeal on
15 May 2015 by the
Constitutional Court.
[11]
Had the DPP launched
the application any time between the granting of the impugned order
on 16 November 2012 and 14 May 2015 (when
the Constitutional Court
dismissed the application for leave to appeal) it would have been met
with a response, either that the
high court application was pending,
or that the application for leave to appeal was pending. Viewed in
this light, the delay worked
to the appellant’s advantage. It
kept him out of prison for as long as it took to exhaust his appeal
options. In effect the
delay gave him precisely what he had sought
before the magistrate, namely that his application for refugee status
be disposed of
before the extradition request was considered.
[12]
Another consideration
is the desirability of having finality of matters. The refusal of
condonation to the DPP would not bring finality
in the matter, as the
Lesotho government would likely submit a fresh extradition request.
This would further delay the matter.
For all these reasons, I am of
the view that it was in the interests of justice that condonation was
granted. There is no basis
on which to interfere with the grant of
condonation by the court a quo.
[13]
I turn now to
the merits of the appeal, which must be determined with reference to
the framework of the Act and the relevant provisions
of the
extradition treaty. The relevant sections of the Act are ss 9, 10 and
11. In terms of s 9(1) an extradition enquiry
has to be held
before a magistrate
in
whose area of jurisdiction a person whose extradition to a foreign
state is sought, has been arrested. Section 9(2) provides
that 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 South Africa.
[14]
Section 10 sets
out the issues the magistrate should consider at such an enquiry, and
the competent orders the magistrate is entitled
to make. The section,
in relevant parts, reads:
‘
(1) If upon the consideration of the
evidence adduced at the enquiry . . . the magistrate finds 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 State concerned, the
magistrate shall
issue an order committing such person to prison to
await the Minister’s
[2]
decision with regard to his or her surrender, at the same time
informing such person that he or she may within 15 days appeal
against such order to the Supreme Court.
(2) For 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.’
[15]
Section 11
reads:
‘
The
Minister may –
(a)
order
any person committed to prison under section 10 to be surrendered to
any person authorized by the foreign State to receive
him or her; or
(b)
order
that a person shall not be surrendered –
(i)
where
criminal proceedings against such person are pending in the Republic,
until such proceedings are concluded and where such
proceedings
result in a sentence of a term of imprisonment, until such sentence
has been served;
(ii)
where
such person is serving, or is about to serve a sentence of a term of
imprisonment, until such sentence has been completed;
(iii)
at
all, before the expiration of a period fixed by the Minister, if he
or she is satisfied that by reason of the trivial nature
of the
offence or by reason of the surrender not being required in good
faith or in the interests of justice, or that for any other
reason it
would, having regard to the distance, the facilities for
communication and to all the circumstances of the case, be unjust
or
unreasonable or too severe a punishment to surrender the person
concerned; or
(iv)
if
he or she is satisfied that the person concerned will be prosecuted
or punished or prejudiced at his or her trial in the foreign
State by
reason of his or her gender, race, religion, nationality or political
opinion.’
[16]
On a simple
reading of ss 10 and 11, the magistrate and the Minister both play a
role, but with carefully delineated duties and
responsibilities. The
magistrate’s duties are confined to making certain preparatory
findings, while the Minister makes substantive
and political
decisions as regards the extradition or otherwise of a person sought
by the requesting state.
[17]
Section 10 makes
plain that the magistrate who conducts an extradition enquiry must
determine whether the person is liable to be
surrendered to the
foreign state concerned and, in the case where the person is accused
of the commission of an offence, whether
there is sufficient evidence
to warrant a prosecution in the foreign state. If the magistrate
makes a positive finding in relation
to these matters, he or she has
no residual discretion but to make an order committing that person to
prison ‘to await the
Minister’s decision with regard to
his or her surrender.’
[3]
[18]
Before the
magistrate, it was submitted on behalf of the appellant that the
extradition request was not made in good faith, but
for political
purposes. It was alleged that the prosecution authority in Lesotho
was being used by the Lesotho government as an
instrument for
political persecution of the appellant. Also, that the application to
review the refusal of his refugee status was
pending in the high
court. For those reasons, it was contended, the appellant should be
discharged.
[19]
The magistrate’s
judgment is not a model of clarity. He devoted a considerable portion
of it to the fair trial provisions
enshrined in s 35(3) of the
Constitution, without explaining the relevance thereof to the issue
before him. Needless to say, those
provisions bear no relevance to an
extradition enquiry in terms of s 10. Very importantly, however, the
magistrate made a finding
that the provisions of s 10 were satisfied.
In other words, he was satisfied that the appellant had been
convicted of an extraditable
offence in Lesotho, and was thus liable
to be surrendered to that country. I pause here to mention that on
this finding, the magistrate
was obliged to order the committal of
the appellant to prison to there await the decision of the Minister
with regard to his surrender.
Despite being satisfied that the
requirements of s 10, as stated above, were satisfied, the magistrate
took the view that he was
entitled to take into consideration the
fact that the refugee status application was pending, and to decide
that it should be determined
first. On that basis, he made an order
discharging the appellant.
[20]
Aggrieved by
that order, the DPP applied to the court a quo to review and set
aside the decision. The application came before Matojane
J who, on
25 August 2017, granted the order sought by the DPP. The learned
judge concluded that the magistrate had acted ultra
vires his powers
conferred in s 10. He substituted the magistrate’s order with
one that the appellant was liable to be surrendered
to the Lesotho
government, and that, pending the decision of the Minister whether
the appellant ought to be extradited, the appellant
be detained in
prison. The appellant appeals against that order.
[21]
In this court,
as he did in the court a quo, the appellant supports the decision of
the magistrate. It was contended on his behalf
that the magistrate
was correct to find that in arriving at his decision, he was not
limited to the provisions of s 10 only, but
could take into
consideration extraneous factors such as the admitted political
instability in Lesotho at the time. Counsel sought
to buttress his
argument with reference to article 4(4) of the extradition treaty,
which provides for discretionary refusal of
extradition where, in
‘exceptional cases,’ the requested state, while also
taking into account the seriousness of the
offence and the interests
of the requesting state, considers that, because of the personal
circumstances of the person sought to
be extradited, the extradition
would be incompatible with humanitarian considerations.
[22]
The argument
based on article 4(4) suffers the same fate. Apart from the fact that
the magistrate did not purport to rely on this
article in his
judgment, there is, in any event, no merit in the contention. The
magistrate could not competently discharge the
appellant based on the
circumstances set out in article 4(4). The discretionary power to
refuse an extradition in ‘exceptional
circumstances,’
properly construed, belongs to the Minister, and not the magistrate.
That is plain from s 11 of the Act which
incorporates the provisions
of article 4(4). That must be so because of the clear wording of the
article. The power is given to
the ‘requested state’
which might consider the interests of ‘the requesting state’
to consider whether
the extradition would be incompatible with
humanitarian considerations. Clearly, this falls squarely within the
purview of international
relations between states, and not of the
courts.
[23]
It was therefore
not within the magistrate’s remit to determine whether it would
be unjust or unreasonable to extradite the
appellant. The
magistrate’s power to discharge the person is limited to only
two instances in terms of s 10(3): if he
or she 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.
[24]
In
Director
of Public Prosecutions: Cape of Good Hope v Robinson
[4]
it was concluded that a magistrate conducting an enquiry in terms of
s 10(1) has no power to consider whether the constitutional
rights of
the person sought by a requesting state may be infringed upon
extradition. That aspect must be considered by the Minister
in terms
of s 11.
[25]
It follows that
the magistrate was wrong to take into consideration the pending
refugee status review application. As correctly
pointed out by the
court a quo, it was open to the magistrate in terms of s 10(4) to
note his concerns in his report to the Minister,
including the fact
that there was a pending review application. The court a quo was
accordingly correct in setting aside the order
of the magistrate.
[26]
It was submitted
on behalf of the appellant that upon setting aside the decision of
the magistrate, the court a quo ought to have
remitted the matter to
the magistrates’ court for determination, instead of
‘attempting to correct the decision by
substituting it with its
own.’ It was contended that s 9(1) was peremptory that an
extradition enquiry ought to be held by
a magistrate. In this case,
so went the submission, the enquiry was not completed on account of
the pending refugee status review
application.
[27]
It is trite that
a court should be slow to substitute its own decision for that of an
administrative authority, and should do so
sparingly and in
exceptional circumstances
.
[5]
In considering whether such
exceptional circumstances are present warranting substitution in a
given case, the Constitutional Court
in
Trencon
Construction v
Industrial
Development Corporation of South Africa (Pty) Ltd & another
[2015] ZACC 22
;
2015 (5) SA 245
(CC) paras
44- 55,
stated two key factors
to be considered in such an enquiry: whether a court is in as good a
position as the administrator to make
the decision, and whether the
decision of an administrator is a foregone conclusion. Other relevant
factors would include delay,
bias or the incompetence of an
administrator.
[28]
The court
further explained that a court will not be in as good a position as
the administrator where the application of the administrator’s
expertise is still required and a court does not have all the
pertinent information before it. Once a court has established that
it
is in as good a position as the administrator, it is competent to
enquire into whether the decision of the administrator is
a foregone
conclusion. A foregone conclusion exists where there is only one
proper outcome of the exercise of an administrator’s
discretion
and it would merely be a waste of time to order the administrator to
reconsider the matter. There can never be a foregone
conclusion
unless a court is in as good a position as the administrator.
[29]
In the present
case, the function which a magistrate performs in terms of s 10
requires no technical knowledge or expertise.
It concerns a simple
application of the law. Thus, the court a quo was in as good a
position as the magistrate. All the facts were
before it. What is
more, the provisions of s 10(1) had been met by the finding of the
magistrate that the appellant was liable
for surrender. Besides, the
only basis on which the appellant was discharged, namely the pending
refugee status review application,
has dissipated. The appellant has
exhausted all his appeal remedies as far as the refugee status
application is concerned.
[30]
Given these
considerations, it follows that the remittal would have been an
exercise in futility. The outcome of the enquiry was
a foregone
conclusion. The court a quo was accordingly correct in not remitting
the enquiry. However, in its substituted order,
it omitted to comply
with the provisions of s 10(4), in terms of which a copy of the
record of the proceedings has to be forwarded
to the Minister
immediately. That should be rectified, and it is reflected in the
order of this court.
[31]
There remains
the question of costs. Counsel for the appellant submitted that the
case raises issues of general importance and public
interest,
particularly the applicability of s 10 of the Act. Therefore, seeking
the protection of the
Biowatch
principle,
[6]
counsel urged us to make no order as to costs. I am of the view that,
important as the case undoubtedly is to the appellant, it
raises no
issues of public importance or public interest. The issue involved
the application of settled law to the facts. Costs
should follow the
result.
[32]
In the result,
the following order is made:
1 Save to the extent
reflected in paragraph 2 hereof, the appeal is dismissed with costs.
2 The order of the
high court is substituted with the following:
‘
1
The order of the magistrate Randburg dated 16 November 2012,
discharging Mr Reatile Thabo Mochebelele in terms of section 10(3)
of
the Extradition Treaty Act 67 of 1962, is set aside.
2 A warrant of
arrest is hereby authorized against the said Mr Reatile Thabo
Mochebelele, who is to be committed to prison to await
the decision
of the Minister of Justice and Correctional Services with regard to
his surrender to the Kingdom of Lesotho.’
3
The Registrar of this court is directed to forward to the Minister of
Justice and Correctional Services a copy of the record of
proceedings
in the Randburg magistrates’ court, together with a copy of the
judgments of the magistrate, the Gauteng Division
of the High Court,
Johannesburg, and this court.
_________________
T
M Makgoka
Judge
of Appeal
APPEARANCES:
For
the Appellant: CA da Silva SC (with him TR Masevhe)
Instructed
by:
Rammutla-at-Law
Inc., Pretoria
Maree
& Partners, Bloemfontein
For
the First Respondent: D Barnard
Instructed
by:
State
Attorney, Johannesburg
State
Attorney, Bloemfontein
For
the Third Respondent: T Mpaka
Instructed
by:
Du
Preez Liebertrau & Co., Maseru
Kramer
Wiehmann & Joubert, Bloemfontein
[1]
United Plant Hire (Pty) Ltd v
Hills & others
1976
(1) SA 717
(A) at 720E-F;
Buffalo
City Municipality v Asla Construction (Pty) Ltd
[2019] ZACC 15
para 54.
[2]
The relevant Minister referred
to in the Act is the Minister of Justice and Correctional Services.
[3]
See
Geuking
v President of the Republic of South Africa and others
[2002]
ZACC 29
;
2003 (3) SA 34
(CC) para 15.
[4]
Director of Public
Prosecutions: Cape of Good Hope v Robinson
[2004] ZACC 22
;
2005 (4) SA 1
(CC) para 49.
[5]
Gauteng
Gambling Board v Silverstar Development Ltd & others
[2005]
ZASCA 19
;
2005
(4) SA 67
(SCA) paras 28-29.
[6]
Biowatch
Trust v Registrar Generic Resources & others
[2009]
ZACC 14
;
2009 (6) SA 232
(CC).