Brief Summary

Extradition — Jurisdiction of Amnesty Committee — Appellants, South African citizens, sought amnesty for crimes committed in Namibia during a politically motivated attack — Minister of Justice ordered their extradition to Namibia after a lengthy delay — Court held that the Amnesty Committee lacked jurisdiction to grant amnesty for offences committed outside South Africa, as Namibia was not classified as a "former state" of South Africa under the TRC Act — Appeals dismissed.

Comprehensive Summary

Summary of Judgment

1. Introduction

These matters were appeals to the Supreme Court of Appeal arising from motion proceedings in the then Transvaal Provincial Division. The litigation concerned the interaction between extradition proceedings and pending applications for amnesty under the Truth and Reconciliation Commission framework.

In each matter, the appellant was a South African citizen. In case no 317/97 the appellant was Darryl Garth Stopforth; in case no 316/97 the appellant was Lennerd Michael Veenendaal. The respondents were the Minister of Justice (first respondent), the Truth and Reconciliation Commission (Amnesty Committee) (second respondent), the Government of Namibia (third respondent), and the Minister of Safety and Security (fourth respondent). In the court a quo only the Minister of Justice opposed the relief.

Procedurally, both appellants had previously been declared liable to extradition by a magistrate under the Extradition Act 67 of 1962 after Namibia sought their extradition. They did not pursue an appeal against that magistrate’s order and, later, did not seek discharge via the mechanism referred to in the Extradition Act. Years afterwards, the Minister of Justice made an executive decision ordering their surrender. The appellants then approached the High Court seeking, primarily, the suspension of the surrender decision pending the determination of their TRC amnesty applications; alternatively, they sought to have the extradition enquiry “referred back” to establish whether a prima facie case existed. The High Court dismissed both applications with costs, holding that the Amnesty Committee lacked jurisdiction to grant amnesty for these offences. Leave to appeal was refused by the High Court but granted by the Supreme Court of Appeal.

The general subject-matter of the dispute was whether the Amnesty Committee had jurisdiction under the Promotion of National Unity and Reconciliation Act 34 of 1995 to grant amnesty for offences committed by South African citizens outside South Africa (in then South West Africa), and what consequences that had (if any) for the execution of an extradition order to Namibia. In Veenendaal’s appeal, an additional issue arose regarding his status as a fugitive from justice during the pendency of the appeal.

2. Material Facts

It was common cause that Stopforth and Veenendaal were, at the time relevant to the dispute, South African citizens and members of right-wing Afrikaner organisations including the AWB and the Orde Boerevolk. During approximately 1989 they were approached in South Africa to participate in underground terrorist activities in the territory then known as South West Africa (SWA). They travelled to SWA, where they and others were issued with weapons of war and participated in the activities of a militant organisation referred to as Kontra 435.

The planned attacks in SWA included actions against UN-related sites connected to the transition to independence, including the UNTAG offices at Outjo and the destruction of United Nations aircraft at Windhoek Airport. The stated purpose was to derail the impending general election in SWA, which was a precursor to independence.

On 10 August 1989, the attack on the UNTAG offices at Outjo was launched, with both appellants participating while heavily armed. In the attack a UN security guard and a SWA policeman were killed, and the UNTAG offices were damaged. The appellants were arrested in SWA in September 1989, but on 4 December 1989 they escaped custody and fled back to South Africa.

After Namibia’s independence on 21 March 1990, the Government of Namibia sought the appellants’ extradition. They were arrested and detained in South Africa pending that extradition application. The extradition enquiry was held in Johannesburg under section 10 read with section 3(2) of the Extradition Act (there being no extradition agreement), and on 30 April 1992 Magistrate Roux held that the appellants were extraditable.

The appellants did not appeal that order; their right to appeal lapsed. Although an application for condonation for late noting of an appeal was filed in May 1992, it was later abandoned. As a result, the Minister of Justice acquired a discretion under section 11 of the Extradition Act to order or refuse surrender, subject to statutory requirements. A memorandum was submitted in August 1992 opposing extradition on various grounds, but no surrender order was then made.

In 1994 the new Minister of Justice became aware that the issue remained pending. Following later inquiries from Namibia, the Minister decided to surrender the appellants and issued a surrender order on 10 October 1996.

On 21 November 1996, the appellants applied to the Truth and Reconciliation Commission for amnesty under section 18 of the TRC Act in relation to the Outjo incident, admitting (among other things) to murder and damage to property. Those amnesty applications had not yet been heard.

In November 1996 the appellants launched motion proceedings in the High Court seeking suspension of the surrender decision pending the amnesty adjudication, and alternatively a referral back of the extradition enquiry to establish whether a prima facie case existed. The High Court dismissed both prayers with costs on 18 February 1997, primarily on the basis that the Amnesty Committee lacked jurisdiction over offences committed in SWA in 1989. Stopforth’s appeal proceeded on that jurisdictional point, while Veenendaal’s appeal was affected by a later development: counsel informed the Supreme Court of Appeal that Veenendaal had stolen a car, fled the country, and was being sought via Interpol, and it was conceded that he was a fugitive from justice.

3. Legal Issues

The central legal question was whether the Amnesty Committee established under the Promotion of National Unity and Reconciliation Act 34 of 1995 had jurisdiction/competence to consider and grant amnesty for offences committed by South African citizens in SWA (outside the Republic) during 1989, in circumstances where those offences were not triable in South African courts in the ordinary course.

Closely connected to that question was an interpretive issue: whether the statutory phrase permitting amnesty for acts “committed within or outside the Republic” in section 20(2) should be construed broadly as extending amnesty to the appellants’ conduct, or purposively and contextually as limited to acts connected to “the conflicts of the past” within the meaning of the TRC Act’s scheme and preamble.

A further issue, contingent on the jurisdictional question, concerned the appropriateness of the relief sought: whether the Minister’s surrender decision should be suspended pending the determination of amnesty applications, and whether the High Court could order the referral back of the extradition enquiry to determine the existence of a prima facie case after the magistrate had already made an order under section 10 and no appeal had been pursued.

In Veenendaal’s appeal, an additional issue arose which was primarily procedural and value-laden in character: whether an appellant who is a fugitive from justice is entitled to be heard in an appeal, or whether the appeal should be struck off the roll to avoid stultifying the court’s process and condoning defiance of the legal system.

Overall, the dispute involved a combination of questions of law (statutory interpretation and jurisdiction), the application of law to essentially common-cause facts, and, in the fugitive aspect, an evaluative judgment about the integrity of the court’s process.

4. Court’s Reasoning

The court treated the two appeals together insofar as they raised the same core questions, but addressed a distinct complication in Veenendaal’s matter. It emphasised at the outset that the appellants were not seeking a review of the Minister’s surrender decision, nor were they attempting to revive or reinstate an appeal against the magistrate’s 1992 extraditability order. Their case was framed on the premise that they were entitled to apply for amnesty, that the Amnesty Committee was competent to decide those applications, and that the possibility of amnesty could justify the suspension of the surrender decision. The Minister did not dispute their entitlement to apply; the contest concerned the Amnesty Committee’s jurisdiction.

In interpreting the TRC Act, the court adopted a purposive approach to statutory construction, expressly relying on authorities recognising that statutory purpose and contextual considerations may guide meaning even where language appears clear. This interpretive method led the court to give significant weight to the TRC Act’s preamble, which describes amnesty as directed at acts associated with political objectives committed “in the course of the conflicts of the past” and linked to reconciliation and reconstruction in a “deeply divided society” among “South Africans,” aiming at “reconciliation between people of South Africa.”

Against that background, the court reasoned that the appellants’ actions in SWA were not part of the “conflicts of the past” contemplated by the TRC Act, properly understood. Their actions were not directed at South African political opponents or internal South African conflicts; instead, they involved South African citizens supporting a conflict in SWA directed at the United Nations (UNTAG) in the context of Namibia’s transition to independence. The court considered that amnesty under the TRC Act was aimed at addressing South Africa’s internal historical conflict and facilitating reconciliation within South Africa, and that granting amnesty for the Outjo attack would not advance “reconciliation between people of South Africa” within the statutory purpose described in the preamble.

The court then tested this conclusion against the detailed structure of section 20. It noted that section 20(2)(a) requires acts, in the relevant category, to be committed by members or supporters of a publicly known political organisation or liberation movement in furtherance of a political struggle, and importantly “against the State or any former State or another publicly known political organisation or liberation movement.” The court analysed the statutory definitions. “State” is defined as the Republic of South Africa; the appellants, on the common-cause facts, did not intend to act against South Africa and believed they were acting in South Africa’s interest. “Former State” was defined to include only the former TBVC states, and their conduct was not directed against those entities. As for “liberation movement,” the court accepted that SWAPO was such a movement at the time, but found no evidence or allegation that SWAPO was the appellants’ target; their victims were UN/UNTAG personnel and property.

The appellants relied heavily on the phrase in section 20(2) allowing acts “within or outside the Republic,” contending that this extended jurisdiction to the Outjo offences. The court accepted that the words are broad, but held that they must be read in context and in light of the Act’s purpose. It further examined whether the United Nations (through UNTAG) could qualify as “another publicly known political organisation” for purposes of section 20(2)(a). While acknowledging that the UN could fit the ordinary meaning of a political organisation in a general sense, the court rejected that classification for the specific statutory context. It reasoned that the word “another” in section 20(2)(a) indicates a scheme involving conflict between opposing organisations or groups of a similar kind, such as between two South African political formations (or comparable internal formations), rather than including an international body like the UN which could not be equated with a militant group such as Kontra 435. This reading was said to be reinforced by section 20(3)(d), which requires consideration of whether the act was directed at a “political opponent” or state property/personnel or private property/individuals in the relevant conflict context; the UN/UNTAG was not appropriately characterised as a “political opponent” within that scheme.

The court also provided an alternative route to the same conclusion. It reasoned that the offences for which extradition was sought—murder, theft, and unlawful possession of weapons and explosives—were committed in SWA, and that South African criminal jurisdiction is generally territorial save for recognised categories of extra-territorial offences (such as treason). The court held that the Outjo offences did not fall within such extra-territorial categories. From this it inferred that no South African court would have jurisdiction to try the appellants for these offences, and that Parliament could not have intended to confer on the Amnesty Committee the power to grant amnesty in respect of offences committed outside South Africa which are not triable in South Africa, particularly where the granting of amnesty would not be recognised in the foreign jurisdiction where the offences are triable. On this reasoning, the court construed the “outside the Republic” language as capable of operating, at most, in relation to extra-territorial offences that remain triable in South Africa.

Having concluded that the Amnesty Committee lacked jurisdiction to grant the amnesty sought for the Outjo incident, the court held that suspending the Minister’s surrender decision pending an amnesty process would be futile, and therefore the High Court had correctly refused the main prayer.

On the alternative prayer to refer the extradition matter back for a prima facie determination, the court held there was no basis in law or fact. Magistrate Roux had already conducted the section 10 enquiry, and an order under section 10 presupposed a finding that there would be sufficient reason to put the accused on trial if the offence had been committed in South Africa. There had been no appeal against that order, and the magistrate was functus officio. The requested referral-back relief was therefore correctly refused.

Turning to Veenendaal’s appeal, the court accepted the concession that he was a fugitive from justice and applied the principle that a fugitive has no right to be heard because entertaining the appeal would stultify the court’s process and connive at defiance of law and order. The appropriate procedural disposition, given that there was an appearance, was to strike the appeal off the roll with costs.

5. Outcome and Relief

In Stopforth’s matter, the Supreme Court of Appeal dismissed the appeal and upheld the High Court’s refusal of both the suspension of the surrender order and the referral back of the extradition enquiry. The court ordered Stopforth to pay costs, including the costs of two counsel.

In Veenendaal’s matter, the Supreme Court of Appeal did not determine the merits of the amnesty/extradition jurisdiction argument because of his fugitive status. The appeal was struck off the roll with costs, including the costs of two counsel.

Cases Cited

Secretary for Inland Revenue v Sturrock Sugar Farm (Pty) Ltd 1965 (1) SA 877 (A).

Venter v R 1907 TS 910.

R v Detody 1926 AD 198.

Jaga v Dönges NO and Another 1950 (4) SA 653 (A).

In re Bidie 1949 Ch 121.

Aetna Insurance Co v Minister of Justice 1960 (3) SA 273 (A).

R v Jones 1925 AD 117.

Argus Printing and Publishing Co Ltd v Inkatha Freedom Party [1992] ZASCA 63; 1992 (3) SA 579 (A).

Mulligan v Mulligan 1925 WLD 164.

S v Nkosi 1963 (4) SA 87 (T).

S v Moshesh and Others 1973 (3) SA 962 (A).

Legislation Cited

Extradition Act 67 of 1962, including sections 3(2), 10, 11, and 14(e).

Promotion of National Unity and Reconciliation Act 34 of 1995, including sections 1(1), 18(1), 19(3)(a), 20(1)(b), 20(2), and 20(3), as well as the preamble.

Constitution of the Republic of South Africa Act 200 of 1993 (as referred to in the TRC Act’s preamble discussion).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Supreme Court of Appeal held that the Truth and Reconciliation Commission Amnesty Committee lacked jurisdiction to grant amnesty to the appellants for offences committed in Outjo, South West Africa, on 10 August 1989, because those acts were not within the “conflicts of the past” contemplated by the TRC Act and, additionally, because the offences were not triable in South African courts as extra-territorial crimes. Consequently, suspending the Minister’s surrender decision pending an amnesty hearing would serve no purpose.

The court further held that there was no legal basis to refer the extradition matter back to the magistrate for a renewed prima facie determination, given that the magistrate had already made a section 10 order, no appeal had been pursued, and the magistrate was functus officio.

In Veenendaal’s case, the court held that as a fugitive from justice he had no right to be heard on appeal; accordingly, his appeal was struck off the roll with costs.

LEGAL PRINCIPLES

A purposive and contextual method of statutory interpretation is applied to determine the scope of the TRC Act’s amnesty provisions, with particular emphasis on the Act’s preamble and the statutory objective of reconciliation within South Africa arising from “the conflicts of the past.”

The TRC Act’s amnesty jurisdiction, although textually extending to certain acts committed “within or outside the Republic,” is construed as limited by the statutory context to acts connected to the South African conflicts contemplated by the legislation and structured around conflicts between relevant political groupings and the South African State (or defined “former States”) or comparable political formations within the statutory scheme.

The judgment applies the principle that where alleged offences committed outside South Africa are not triable in South African courts (i.e., they are not within recognised extra-territorial categories), it is not to be inferred—absent clear indication—that Parliament intended a domestic amnesty body to grant amnesty with respect to such offences, particularly where such amnesty would not be recognised in the jurisdiction where prosecution would occur.

An appeal may be procedurally barred where the appellant is a fugitive from justice, on the basis that hearing the matter would undermine the integrity of the court’s process and amount to condoning defiance of law and order; the appropriate remedy may be to strike the appeal off the roll with costs.

Stopforth v Minister of Justice and Others, Veenendaal v Minister of Justice and Others (316/97, 317/97) [1999] ZASCA 72; [1999] 4 All SA 383 (A) (27 September 1999)