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[2002] ZACC 29
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Geuking v President of the Republic of South Africa and Others (CCT35/02) [2002] ZACC 29; 2003 (3) SA 34 (CC); 2004 (9) BCLR 895 (CC); 2003 (1) SACR 404 (CC) (12 December 2002)
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 35/02
WILHELM IGNAZ ERICH GEUKING Appellant
versus
PRESIDENT OF THE
REPUBLIC
OF SOUTH AFRICA First Respondent
MINISTER FOR JUSTICE
AND
CONSTITUTIONAL DEVELOPMENT Second Respondent
DIRECTOR OF PUBLIC
PROSECTIONS:
THE PROVINCE OF THE CAPE OF GOOD HOPE Third
Respondent
MAGISTRATE, CAPE TOWN Fourth Respondent
Heard
on : 21 November 2002
Decided on : 12 December 2002
JUDGMENT
GOLDSTONE J:
Introduction
[1]
Extraditing
a person, especially a citizen, constitutes an invasion of fundamental human
rights. The person will usually be subject
to arrest and detention, with or
without bail, pending a decision on the request from the foreign state. If
surrender is ordered,
the person will be taken in custody to the foreign
state.
[2]
The need for extradition has
increased because of the ever-growing frequency with which criminals take
advantage of modern technology,
both to perpetrate serious crime and to evade
arrest by fleeing to other lands. The government of the country where the
criminal
conduct is perpetrated will wish the perpetrator to stand trial before
its courts and will usually offer to reciprocate in respect
of persons similarly
wanted by the foreign state. Apart from reciprocity, governments accede to
requests for extradition from other
friendly states on the basis of
comity.
[1]
Furthermore, governments
do not wish their own countries to be, or be perceived as safe havens for the
criminals of the world.
[3]
In December 1990 a court in
the Federal Republic of Germany (the FRG) convicted Mr. Geuking (the appellant)
on two counts of fraud
and arson and sentenced him to imprisonment for two years
and nine months. The appellant’s appeal against his conviction and
sentence was dismissed in May 1991. He then fled the FRG and in early 1992 took
up residence in South Africa. In June 1992 the
appellant was granted permanent
residence in the former Ciskei and in November of that year he was granted a
certificate of naturalisation
and thus became a citizen of Ciskei. On 14 July
1995 the appellant became a South African citizen through naturalisation. It is
not disputed on the papers that he ceased to be a citizen of the
FRG.
[4]
In a verbal note dated 25
November 1996, the embassy of the FRG requested the Republic of South Africa to
extradite the appellant
in order to implement the prison sentence and to
introduce proceedings against him on a further 15 counts of fraud allegedly
committed
by him in the FRG. In the verbal note the appellant was described as
a German citizen. The note also stated that the FRG was "prepared
to extradite
persons with similar criminal offences to the Republic of South Africa if these
persons do not have German citizenship
and if German extradition laws are
satisfied."
[2]
[5]
Extradition is governed by
the provisions of the Extradition Act of
1962
[3]
(the Act). Section 3(2) of
the Act provides for the extradition of persons from South Africa to countries
with which South Africa
has no extradition
treaty.
[4]
The FRG is such a country.
Before the proceedings can commence, section 3(2) requires the consent of the
first respondent (the President).
On 30 May 1997 the President consented to the
appellant’s extradition without being notified that he was no longer a
citizen
of the FRG and had become a South African
citizen.
[6]
On 30 January 1998 the
Minister for Justice and Constitutional Development (the Minister) issued a
notification in terms of section
5(1)(a) of the
Act
[5]
to the fourth respondent, the
magistrate for the district of Cape Town (the magistrate), to inform him that a
request had been received
for the appellant's extradition. The magistrate duly
issued a warrant for the appellant's arrest which was executed on 20 April
1998.
[7]
Section 10(2) of the
Act
[6]
provides that in extradition
proceedings before a magistrate, a certificate from the appropriate authorities
in the foreign state
must be accepted as conclusive proof that such authority
has sufficient evidence to warrant the prosecution of the person concerned.
On
4 May 1998 the appellant's attorneys addressed a letter to the offices of the
third respondent, the Attorney-General (now the
Director of Public
Prosecutions), to inquire whether a section 10(2) certificate would be used in
the appellant's extradition enquiry.
It was confirmed that this was the
intention. A copy of the certificate was furnished to the
appellant.
[8]
On 13 May 1998 the appellant
brought an application in the Cape High Court (the High Court) for relief which,
in summary, sought an
order:
(a) Declaring sections 10(2) and 3(2) of the Act to be inconsistent with the
Constitution and invalid;
(b) Reviewing and setting aside the President's consent in terms of section
3(2) to the appellant's extradition;
(c) Reviewing and setting aside the Minister's decisions to countersign the
consent and to notify the magistrate in terms of section
5(1)(a), that the
extradition request had been received;
(d) Reviewing and setting aside the magistrate's decision to issue a warrant for
the appellant's arrest;
(e) Declaring these decisions and arrest warrants to be null and void and of no
force and effect, in consequence of the invalidity
of such decisions and
acts.
[9]
At the time that the matter
was heard by the High Court, this Court had already held that section 3(2) is
consistent with the Constitution.
[7]
In consequence the appellant abandoned the relief he had sought in respect of
that provision of the Act.
[10]
On 11 June 2001 the High
Court dismissed the appellant's
application.
[8]
Having been granted a
positive certificate in terms of rule 18 of this Court’s rules, the
appellant launched an application
for leave to appeal directly to this Court.
That application was granted.
[11]
The appellant seeks in this
Court:
(a) To have the consent of the President reviewed and set aside on the grounds
that:
(i) he was not authorised by the Act to grant it; and that, in any event,
(ii) it was granted on the basis of incorrect information as to the citizenship
of the appellant.
(b) An order declaring that the provisions of section 10(2) of the Act are
unconstitutional and invalid.
The Scheme of
the Act
[12]
In the
Harksen
case
[9]
this Court described the
three bases upon which extradition may be sought under the
Act.
[10]
As already noted, there is
no extradition agreement between this country and the FRG and the latter has not
been designated by the
President. It follows that the request received from the
FRG can only be acted upon under the provisions of section 3(2) of the
Act.
[11]
As pointed out in
Harksen,
this provision is designed to enable South Africa to accede, on
the basis of reciprocity or comity, to a request for extradition from
a state
with which there is no extradition
agreement.
[12]
[13]
After the process of
extradition has been initiated by the issue of a warrant of arrest by a
magistrate under section
5(1)(a),
[13]
section 9(1) requires
that the arrested person be brought before him or her as soon as possible for
the purpose of holding “an
enquiry with a view to the surrender of such
person to the foreign State concerned.” Under section 9(2) the inquiry
“shall
proceed in the manner in which a preparatory examination is to be
held”, i.e. a preparatory examination held in terms of Chapter
20 of the
Criminal Procedure Act
[14]
(the
CPA). This means that the enquiry must be held in open court (section 152 of
the CPA), subject to the provisions of section
9(3) of the
Act;
[15]
the evidence must be led on
oath or affirmation (sections 162 and 163 of the CPA); and oral evidence is
subject to cross-examination
and re-examination (section 166 of the CPA). The
State first leads evidence and thereafter the person has the opportunity of
making
a statement, testifying or calling witnesses (sections 128, 133 and 134
of the CPA).
[14]
Under section 9(3) of the
Act, the magistrate may receive any deposition, statement on oath or affirmation
(irrespective of whether
it was taken in the presence of the person whose
extradition is sought), any record of conviction, or any warrant issued by a
foreign
state, or any copy or sworn translation thereof. Provision is made in
section 9(3) of the Act for the authentication of such
documents.
[15]
The purpose of the enquiry
is to be found in section 10(1) of the
Act.
[16]
It is for the magistrate
to determine, upon a consideration of the evidence,
whether:
(a) the person is liable to be surrendered to the foreign state concerned;
and
(b) in the case where such person is accused of an offence, there is sufficient
evidence to warrant a prosecution for the offence
in the foreign
state.
If so satisfied, the magistrate is required
to issue an order committing such person to prison and there to await the
decision of
the Minister with regard to surrender. At the same time the
magistrate is obliged to inform the person that he or she may within
15 days
appeal against such order to the High Court.
[16]
Under section 10(3) of the
Act, if the magistrate finds that the evidence does not warrant the issue of an
order of committal or that
the evidence required is not forthcoming within a
reasonable time, the person shall be discharged. Under section 10(4) of the
Act,
the magistrate issuing a committal order shall forthwith forward to the
Minister a copy of the record of the proceedings together
with such report as he
or she may deem necessary.
[17]
Section 11 of the Act vests
in the Minister the ultimate decision to surrender to a foreign state a person
who has been committed
by a magistrate. Under section 11(b) the Minister is
given a discretion to refuse to surrender a person on the following
grounds:
(a) where criminal proceedings are pending
against such person in the Republic, until such proceedings have been concluded
or where
the proceedings result in a sentence of imprisonment, until such
sentence has been served;
(b) where such person is serving, or is about to serve, a sentence of a term
of imprisonment, until such sentence has been completed;
(c) if the Minister “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
(d) “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.”
A person committed by a magistrate under section 10 may within
fifteen days appeal to the High Court against such
order.
[17]
On appeal, the court may
make such order as it may deem
fit.
[18]
[19]
I now turn to consider the
issues raised by the appellant in this
appeal.
The Consent of the President
[20]
The submission made on
behalf of the appellant is that section 3(2), whilst requiring the consent of
the President for extradition
to a state with which there is no extradition
agreement, does not in terms or by necessary implication empower the President
to grant
such consent.
[19]
In
support of the submission that the power could not be implied counsel relied on
the judgment in
Rennie NO v Gordon and Another
NNO.
[20]
In my opinion, this
decision is authority against the appellant’s case. In the course of his
judgment, Corbett JA said:
“Over the years our Courts have consistently adopted the view that words
cannot be read into a statute by implication unless
the implication is a
necessary one in the sense that without it effect cannot be given to the statute
as it stands”.
[21]
Counsel for the appellant conceded that the power is not to be
found elsewhere and that without it, effect cannot be given to the
provisions of
section 3(2) of the Act. If the President does not have the power to consent
under section 3(2), South Africa would
be unable to accede to an extradition
request from a country with which there is no extradition agreement and which
has not been
designated by the President. This, too, was conceded by
counsel.
[21]
Since the promulgation of
the Act, it has never been doubted by our courts that section 3(2) empowers the
President to consent to
surrender a person in response to a request under that
section. Indeed it has been so assumed by the Supreme Court of
Appeal
[22]
and in
Harksen
by
this
Court.
[23]
[22]
In support of his
submission that section 3(2) does not empower the President to grant his consent
to the surrender, counsel for the
appellant also relied on a decision of the
Federal Court of Australia in
Oates v Attorney-General
[24]
That case concerned
a request for extradition under a power it was held vests in the Crown itself.
The Australian court was therefore
dealing with the interpretation of a
statutory provision the context of which is entirely different to that with
which we are concerned
in this case. The
Oates
decision thus cannot
provide support for the appellant’s
submission.
[23]
It follows that there is no
substance in this argument and it falls to be
dismissed.
The Constitutional Validity of the
President’s Consent
[24]
The appellant’s
attack on the validity of the consent of the President under section 3(2) of the
Act is founded upon the fact
that incorrect information as to the
appellant’s citizenship was supplied in the request for extradition. It
was also submitted
that when the surrender of a South African citizen is sought,
the President is obliged to have regard to the provisions of section
21(3) of
the Constitution which provides that:
“Every citizen has the right to enter, to remain in and to reside anywhere
in, the Republic.”
The incorrect information as to the appellant’s
citizenship, so it was argued, was fatal to the validity of the consent.
[25]
The High Court
held
[25]
that the President’s
consent under section 3(2) of the Act sets in motion the extradition procedures
under the Act and therefore
constitutes an administrative act. However, it
correctly pointed out that if that conclusion was incorrect it would not mean
that
there were no constraints upon the President in granting his consent. It
would still be subject to the principle of legality and
the provisions of the
Constitution.
[26]
The High Court
went on to hold
[27]
that in any
event the President had exercised his power under section 3(2) lawfully having
paid due regard to the jurisdictional
facts referred to in that section and that
the constitutional rights of the appellant had not been
infringed.
[26]
In the course of his
argument in this Court, counsel for the appellant did not persist in his support
for the finding of the High
Court that the grant or refusal of consent by the
President under section 3(2) of the Act was an administrative
decision.
[28]
It is a policy
decision which may be based on considerations of comity or reciprocity between
the Republic and the requesting
state.
[29]
The decision is based
not on the merits of the application for extradition but on the relationship
between this country and the
requesting state. That the President is enjoined
by the provisions of section 3(2) to have regard to the fact that the person has
been convicted by or is accused of criminal conduct in the requesting state and
that the offence is an extraditable offence does
not alter the essential nature
of the decision. According to Bassiouni, a leading authority on extradition
law:
[30]
“. . . extradition is deemed a sovereign act, its legal proceedings are
deemed
sui generis
, and its purpose is not to adjudicate guilt or
innocence but to determine whether a person should properly stand trial where
accused
or be returned to serve a sentence properly imposed by another
state.”
[27]
The President in deciding
whether to consent to the surrender of a person under section 3(2) must be free
to take into account any
matter considered relevant to what is a policy decision
relating to foreign affairs. It is not for the courts to determine what
matters
are appropriate or relevant for that purpose. The courts could intervene only
if the President were to abuse the power vested
in him or use it in a manner
contrary to the provisions of the
Constitution.
[31]
[28]
In the present case, the
President stated in the affidavit he filed in the High Court that in deciding
whether to grant his consent
under section 3(2) of the Act the citizenship of
the appellant would not have been a relevant consideration. I can find no
constitutional
ground for attacking that policy decision. Unlike the FRG and
many other civil law jurisdictions, South Africa does not ordinarily
prosecute
its citizens for crimes committed beyond its borders. Criminal conduct would go
unpunished if South African citizens were
not extradited to face prosecution in
the country where the crime was committed. The President is therefore entitled
to adopt a
policy that it is in the interests of the Republic to consent to a
request for extradition proceedings against a person, regardless
of his or her
citizenship.
[29]
The provisions of section
21(3) of the Constitution are not relevant to the President’s consent
under section 3(2). It is not
a decision to extradite the person whose
surrender is requested. Its effect is no more than to trigger the provisions of
the Act
applicable to the request and the procedures contained in the Act will
then have to be complied with. The provisions of section
21(3) of the
Constitution might well be relevant to the exercise of the discretion conferred
on the Minister by section 11 of the
Act. This is not a matter presently before
this Court.
[30]
It follows that, albeit for
different reasons, the attack on the validity of the President’s consent
under section 3(2) of the
Act was correctly dismissed by the High Court. The
attack on the Minister having countersigned the consent of the President was
founded solely upon the alleged invalidity of the President’s consent. It
follows that it was also correctly dismissed by
the High
Court.
[32]
The
Constitutionality of Section 10(2) of the Act
[31]
As already
mentioned,
[33]
in terms of section
10(2) of the Act,
[34]
the magistrate
who holds the enquiry is obliged to accept as conclusive proof that there is
sufficient evidence to warrant a prosecution
in the requesting state, a
certificate to that effect by an appropriate authority in the foreign state.
The appellant submits that
this provision infringes his constitutional rights to
a fair public hearing (section
34),
[35]
a fair trial (section
35(3)), and not to be deprived of his freedom arbitrarily or without just cause
(section 12(1)(a)). He also
argues that the provision is in conflict with the
separation of powers mandated by the Constitution and more particularly that it
is inconsistent with the independence of the judiciary guaranteed by section 165
of the Constitution.
[32]
The appellant’s
attack on the provisions of Section 10(2) was not considered by the High Court
on the ground that it was premature.
The inquiry before the magistrate had not
yet begun and, so it was held, it was not inevitable that the magistrate would
be requested
to rely on a certificate of the kind referred to in the
section.
[36]
[33]
In finding that the attack
on the constitutionality of section 10(2) was not ripe for determination, the
High Court erred. The Director
of Public Prosecutions had not only informed the
appellant that such a certificate would be relied upon in the extradition
enquiry
but had furnished the appellant with a copy of the certificate. The
rights claimed by the appellant under the Bill of Rights were
thus clearly
threatened. Such threat was sufficient to entitle the appellant to approach the
High Court for relief under section
38 of the Constitution. It is there
expressly provided that anyone acting in their own interest may approach a
competent court “alleging
that a right in the Bill of Rights has been . .
.
threatened.”
[37]
[34]
In respect of the reliance
by the appellant on the separation of powers, the threat to use the certificate
was also sufficient to
oblige the High Court to consider that issue. In the
light of the attitude of the Director of Public Prosecutions, the dispute was
not academic. In addition, there are conflicting views in the High Court as to
the constitutionality of section
10(2).
[38]
In
Ferreira v Levin
NO and Others
[39]
Chaskalson P said:
“The applicants have a real and not a hypothetical interest in the
decision. The decision will not be academic; on the contrary
it is a decision
which will have an effect on all s 417 enquiries and there is a pressing public
interest that the decision be given
as soon as possible. All the requirements
ordinarily set by a Court for the exercise of its jurisdiction to issue a
declaration
of rights are therefore present. The question is whether different
considerations apply in constitutional cases.”
Chaskalson P went on to
hold
[40]
(for the majority of the
Court) that those considerations did apply in constitutional cases. Although
that decision related to a
provision of the Bill of Rights contained in the
Interim Constitution, the same considerations apply to any case in which it is
alleged
that a constitutional right has been infringed or threatened.
[35]
It follows that this Court
is now obliged to decide the constitutionality of section 10(2) of the Act. I
turn to that question.
[36]
The starting point of this
inquiry is to consider the nature of the inquiry which the magistrate is obliged
to hold under the Act.
[41]
As
appears from paragraph 15 above, in terms of section 10(1) of the
Act
[42]
the magistrate must consider
the evidence adduced and, in order to issue a committal warrant, he or she must
be satisfied that:
(a) the person brought before him or her is liable to be surrendered to the
foreign state concerned and,
(b) 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.
[37]
In a case such
as the present, in considering whether the person brought before him or her is
liable to be surrendered, the magistrate
must be satisfied
that:
(a) the person who has been brought before
him or her is the person sought by the requesting state;
(b) the President has consented to the surrender of that person under
section 3(2);
(c) the offence in respect of which the person is sought by the foreign
state is an extraditable offence. An “extraditable
offence” is
defined in section 1 of the Act to mean:
“any offence which in terms of the law of the Republic and of the foreign
State concerned is punishable with a sentence of
imprisonment or other form of
deprivation of liberty for a period of six months or more, but excluding any
offence under military
law which is not also an offence under the ordinary
criminal law of the Republic and of such foreign State”;
(d) there is sufficient evidence to
warrant a prosecution of the offence in the foreign state;
(e) if a section 10(2) certificate is relied on, that it was issued by an
appropriate authority in charge of the prosecution in the
foreign state
concerned.
[38]
As mentioned
earlier,
[43]
the enquiry must be
held in open court in the manner in which a preparatory examination is held. In
particular, the person concerned
is entitled to testify and adduce evidence.
The identity of the person before the magistrate – as being the person
named in
the request – has to be established and can be challenged or
contradicted by documentary or oral evidence. Likewise, consent
of the
President has to be proved and can be challenged or refuted. In the ordinary
course however, proper proof of the document
evidencing the consent would
suffice.
[39]
In the determination of
whether the offence is an extraditable offence the magistrate would have to
consider whether the evidence
produced by the foreign state would constitute an
offence under the law of the Republic. Sufficient detail of the offence alleged
against the person concerned would thus have to be placed before the magistrate
in order for that determination to be made. Under
section 9(3) of the Act, the
evidence may take the form of a deposition, statement on oath or affirmation,
whether taken in the presence
of the person concerned or not, and must be duly
authenticated in the manner provided in section 9(3)(a)(iii) of the
Act.
[44]
The magistrate would have
to be satisfied that these requirements are
satisfied.
[40]
The magistrate would then
have to consider whether the evidence which has thus been produced would
constitute an offence under South
African law. The name of the offence would
not be determinative. The question for consideration is whether the conduct
which the
evidence discloses constitutes an offence in our law which would be
punishable with a sentence of imprisonment for a period of six
months or more.
It must also be established that the offence is not one under military law and
is not also an offence under the
ordinary criminal law of the
Republic.
[41]
The question of fact dealt
with by way of a section 10(2) certificate is whether the evidence adduced
before the magistrate would
also warrant the prosecution of the person concerned
under the law of the foreign state. It is one of a number of factual issues
which are required to be considered by the magistrate and is the only one that
does not depend on evidence readily available in South
Africa. Furthermore, it
is a question which would not normally be within the knowledge or expertise of
South African lawyers or
judicial officers.
[42]
In considering the
constitutionality of section 10(2) it must be borne in mind
that:
(a) the proceedings before the magistrate do
not constitute a trial. In the event of the surrender of the person, his or her
trial
will be held in the foreign state. That, after all, is the purpose for
which the extradition is sought;
(b) if the magistrate finds that the person is liable to be surrendered to
the foreign state, the person has a right of appeal to
the High Court;
(c) if there is no appeal or if the decision of the magistrate is confirmed
on appeal, the record of the proceedings together with
such report as the
magistrate may deem necessary must be forwarded to the Minister;
(d) the Minister is then required to exercise a discretion under section 11
of the Act
[45]
and notwithstanding
the finding of the magistrate, may refuse the surrender on any one or more of
the grounds specified in that section
of the
Act.
[46]
(e) the person concerned is entitled to give and adduce evidence at the
enquiry which would have a bearing not only on the magistrate’s
decision
under section 10, but could have a bearing on the exercise by the Minister of
the discretion under section 11.
[43]
With that background I turn
to consider the constitutional attacks of the appellant. The first relates to
the right of access to
the courts. Section 34 of the Constitution provides
that:
“Everyone has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing
before a court or, where
appropriate, another independent and impartial tribunal or forum.”
On behalf of the appellant it was submitted that the conclusive
presumption under section 10(2) has the effect of obliging the magistrate
to
commit the person concerned without being able to determine the dispute (if one
arises) as to whether the conduct alleged constitutes
criminal conduct in the
foreign country. It was submitted further that this conclusive presumption
prevents the magistrate from
determining a dispute on the requirement of the
double criminality principle.
[44]
In dealing with this
argument it is important to have regard to the nature of extradition proceedings
and the limited function of
the hearing before the magistrate. Extradition
proceedings do not determine the innocence or guilt of the person concerned.
They
are aimed at determining whether or not there is reason to remove a person
to a foreign state in order to be put on trial there.
The hearing before the
magistrate is but a step in those proceedings and is focused on determining
whether the person concerned
is or is not extraditable. Thereafter it is for
the Minister to decide whether there is indeed to be extradition. What is fair
in the hearing before the magistrate must be determined by these
considerations.
[45]
From the earlier analysis
of what the magistrate is required to consider, it is clear that he has to be
satisfied that the conduct
alleged by the foreign state constitutes criminal
conduct in this country. In order to make that determination the magistrate has
to be furnished with sufficient detail of the alleged conduct. If the
magistrate considers that the evidence does not disclose criminal
conduct under
South African law that would be an end of the matter and the person would have
to be discharged. If the alleged conduct
in the foreign state does constitute
criminal conduct in this country, the magistrate is then required to rely on the
certificate
with regard to the narrow issue as to whether the conduct also
warrants prosecution in the foreign country. It is not inappropriate
or unfair
for the legislature to relieve the magistrate of the invidious task of deciding
this narrow issue unrelated to South African
law. As already mentioned, it is a
question in respect of which South African lawyers and judicial officers will
usually have no
knowledge or expertise.
[46]
The certificate from the
appropriate authority in the foreign state to the effect that the conduct in
question warrants prosecution
in that state is sufficient for the purpose of
extradition. Its conclusiveness is binding on the magistrate only in relation
to
his consideration of the question whether the person concerned is
extraditable. If the person concerned is extradited the foreign
court will have
to determine the issue covered by the certificate. Furthermore, in the exercise
of his discretion under section
11 of the Act, the Minister might well be
obliged to consider an attack made in good faith against the conclusion of the
foreign
authority contained in the certificate. In all of these circumstances
the provisions of section 10(2) cannot be said to deprive
the person concerned
of a “fair public hearing”. In my view this ground of attack is
without merit.
[47]
The appellant also relies
on the fair trial provisions enshrined in section 35(3) of the Constitution.
What must be stressed here
is that the fact that the enquiry envisaged in
section 9(2) must proceed in the manner in which a preparatory examination is
held
[47]
does not transform the
enquiry into a trial. The person facing extradition is not an accused person
for the purposes of the protection
afforded by section 35(3) of the
Constitution. As pointed out earlier, the enquiry does not result in a
conviction or sentence.
This does not mean, however, that the person concerned
is not entitled to procedural fairness at all stages of the extradition
proceedings.
[48]
It follows that
the provisions of section 35(3) of the Constitution are not relevant to it. The
reliance on it by the appellant
is therefore
misplaced.
[48]
Then the appellant claims
that by reason of the provisions of section 10(2) of the Act he stands to be
deprived of his freedom arbitrarily
or without just cause in violation of the
provisions of section 12(1) of the Constitution. Section 12 entrenches the
fundamental
right to freedom and, as this Court has held before, contains both a
substantive and procedural
aspect.
[49]
In response to this
argument, it should be noted that the deprivation of freedom occasioned by an
extradition occurs not when a
magistrate concludes an enquiry, but when the
Minister decides in terms of section 11 that the extradition should take place.
Be
that as it may, it is clear from the preceding discussion that the procedure
before the magistrate requires the magistrate to decide
that the offence in
question is indeed an “extraditable offence” and that the person
concerned is “liable for extradition”.
The role of the section
10(2) certificate in reaching such conclusions is a narrow one, related only to
the question of whether
the alleged conduct is sufficient to give rise to an
offence in the foreign jurisdiction. As such its conclusive character does
not
detract from the fact that the magistrate’s enquiry and conclusion is
sufficient, in the context of the purpose of the
enquiry which is to facilitate
extradition, to meet the constitutional requirement of just cause. Moreover, as
found above, the
procedure before the magistrate is fair. For these reasons,
the appellant’s argument that the 10(2) certificate occasions
a breach of
section 12(1) of the Constitution cannot be
upheld.
[49]
Finally, the appellant
claims that the conclusive nature of the section 10(2) certificate constitutes
an invasion of the independence
of the judiciary and is thus inconsistent with
the provisions of section 165 of the
Constitution.
[50]
The submission is
that the magistrate is required by section 10 of the Act to conduct a judicial
enquiry which affects the freedom
of the person concerned. The legislature or a
foreign prosecutor should not be allowed to dictate the manner in which the
magistrate
must make this decision. Reliance was placed upon the statement of
Heher J in
McCarthy v The Additional Magistrate, Johannesburg and
Others
,
[51]
to the effect
that:
“In my view a restrictive statutory prescription of the nature in question
is in conflict with the doctrine of separation of
powers and does constitute
interference with the functioning of the judiciary because, by legislative
injunction, it blindfolds a
court in a matter which involves the liberty of
persons who are brought before it. Every such person must be fully entitled to
submit
to a court that the say-so of a witness or deponent should not be relied
upon because the witness is fallible or dishonest or mistaken
or merely wrong;
conversely a court must have the power to act upon such a submission. If one
were to give constitutional recognition
to section 10(2), one must needs accept
as a principle that the legislature can instruct the courts as to whose evidence
they may
rely upon and whose they must reject. By such recognition a court
yields its power to make true and meaningful decisions before
the supremacy of
parliament and justice is watered down. Were it pertinent to have done so, I
would therefore have upheld the applicant
on this
point.”
[50]
In my opinion, both Heher J
and counsel for the appellant failed to distinguish between ordinary domestic
proceedings and extradition
proceedings. They also conflated a legislative
provision of the kind now under consideration with regard to foreign law with
one
relating to domestic law. As already mentioned, the certificate is
conclusive solely with regard to a question of foreign law.
The inquiry by the
magistrate does not constitute a trial in which guilt or innocence has to be
determined. As pointed out by
Bassiouni,
[52]
extradition
proceedings are sui generis and the Act in essence regulates the exercise of a
sovereign state power. Viewed in this
context, the provisions of section 10(2)
do not interfere in any way with the independence of the judiciary by rendering
conclusive
the opinion on foreign law by an appropriate foreign official from
the country seeking the extradition. In my opinion, the provisions
of section
10(2) in no way interfere with or detract from the independence of the judiciary
or violate the separation of powers.
[51]
It follows that the attacks
on the constitutionality of section 10(2) of the Act must be dismissed. The
appeal falls to be dismissed.
[52]
With regard to costs, it is
relevant that the appellant raised issues which cannot be said to be frivolous
or in bad faith. The High
Court incorrectly held the constitutionality of
section 10(2) was not ripe for determination. That issue and the controversy
surrounding
it have been laid to rest. That is clearly in the public interest.
In these circumstances a costs order should not be made against
the
appellant.
The Order
1 The appeal is
dismissed.
2 There is no order as to costs.
Chaskalson CJ,
Langa DCJ, Kriegler J, Madala J, Mokgoro J, Ngcobo J, O’Regan J, Sachs J
and Yacoob J concur in the judgment
of Goldstone J.
For the appellant: A. Katz and J. De Waal instructed by C&A Friedlander
Inc, Cape Town.
For the respondents: M.A. Albertus SC and A. Schippers instructed by the
State Attorney, Cape Town.
[1]
For a discussion of comity and
reciprocity as a basis for extradition, see N. Botha “The Basis of
Extradition: The South African
Perspective” (1991/92) 17
South African
Yearbook of International Law
at 134 - 145.
[2]
The courts of the FRG have
jurisdiction in respect of criminal offences committed by their citizens outside
the FRG and under the
Constitution of the FRG citizens may not be extradited,
save to international criminal tribunals and the International Criminal
Court.
[3]
Act 67 of 1962.
[4]
Section 3(2) provides as
follows:
“Any person accused or convicted of an extraditable offence committed
within the jurisdiction of a foreign State which is not
a party to an
extradition agreement shall be liable to be surrendered to such foreign State,
if the President has in writing consented
to his or her being so
surrendered.”
[5]
Section 5(1)(a) provides as follows:
“Any magistrate may, irrespective of the whereabouts or suspected
whereabouts of the person to be arrested, issue a warrant
for the arrest of any
person-
(a) upon receipt of a notification from the Minister to the effect that a
request for the surrender of such person to a foreign State
has been received by
the
Minister”.
[6]
Section 10(2) provides as follows:
“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.”
[7]
Harksen v President of the Republic of South Africa and Others
[2000] ZACC 29
;
2000 (2)
SA 825
(CC);
2000 (5) BCLR 478
(CC) at paras 17 – 18.
[8]
The judgment is reported as
Geuking v President of the Republic of South Africa and Others
2002 (1)
SA 204
(C);
2001 (11) BCLR 1208
(C). References in this judgment will be to the
report in the South African Law Reports.
[9]
Above n 7, para 5.
[10]
Id para 5. The first is
under an extradition agreement between the Republic and the requesting state.
The second is where there
is no such agreement. And, the third is to states
“designated” by the President.
[11]
Above n 4.
[12]
Above n 7.
[13]
Above n 5.
[14]
Act 51 of 1977. See
Ex
parte Graham: In re United States of America v Graham
1987 (1) SA 368
(T) at
371 D.
[15]
Below para 14.
[16]
Section 10(1) provides as
follows:
“If upon consideration of the evidence adduced at the enquiry referred to
in section 9 (4)
(a)
and
(b)
(i) the magistrate finds that the
person 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
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.”
[17]
Section 13(1) of the Act.
[18]
Section 13(2) of the
Act.
[19]
This argument does not
appear to have been made in the High Court.
[20]
1988 (1) SA 1
(A).
[21]
Id at 22 E – F.
[22]
S v McCarthy
[1995] ZASCA 56
;
1995 (3)
SA 731
(A) at 738 J – 739 A.
[23]
Above n 7, para 15.
[24]
An unreported judgment
delivered on 2 April 2002.
[25]
Above n 8, at 217 J –
218 A.
[26]
Id at 218 B - D with
reference to the decisions of this Court in
President of the Republic of
South Africa and Others v South African Rugby Football Union and Others
2000
(1) SA 1
(CC);
1999 (10) BCLR 1059
(CC) at para 148 and
Permanent Secretary,
Department of Education and Welfare, Eastern Cape, and Another v Ed-U-College
(PE) (Section 21) Inc
[2000] ZACC 23
;
2001 (2) SA 1
(CC);
2001 (2) BCLR 118
(CC) at para
19.
[27]
Id at 218 E - 219 A.
[28]
Whether this is an act by
the President as head of state under section 84 of the Constitution, or as head
of the executive under
section 85 of the Constitution, is an issue we are not
called upon to determine in this case.
[29]
Harksen v President of
the Republic of South Africa
, n 7 at para 3.
[30]
International
Extradition: United States Law and Practice
4 ed (Oceana Publications, New
York 2002) at 66.
[31]
See
President of the
Republic of South Africa and Another v Hugo
[1997] ZACC 4
;
1997 (4) SA 1
(CC);
1997 (6)
BCLR 708
(CC) at para 29.
[32]
Above n 8, at 219 B - C.
[33]
Above para 7.
[34]
Above n 6.
[35]
Below para 43 - 46.
[36]
Above n 8, at 220 C –
221 D.
[37]
See
Ferreira v Levin NO
and Others;Vryenhoek and Others v Powell NO and Others
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at para 168.
[38]
In
Bell v S
1997 (2)
All SA 692
(E) at 698 G, the provisions were held to be constitutional and in
S v Von Schlicht
2000 (1) SACR 558
(C) at 563 H – 564 C a similar
view was expressed, albeit obiter. In
McCarthy v The Additional Magistrate,
Johannesburg and Others
(Case No 96/21842)
(unreported judgment of
Heher J in the Johannesburg High Court delivered on 14 May 1998), the view was
expressed, also obiter, that
the provisions of section 10(2) were in conflict
with the functioning of the judiciary and on that ground unconstitutional (at
page
41 of the typed judgment).
[39]
Above n 37, para 164.
[40]
Id para 168.
[41]
In this case the FRG relies
on both convictions and alleged offences for which they wished to have the
appellant extradited. In
respect of the convictions, the section 10(2)
certificate is not relevant.
[42]
Above n 16.
[43]
Above para 13.
[44]
Section 9(3)(a)(iii) of the
Act provides for authentication by signature and seal of office –
“
(aa)
of the head of a South African diplomatic or consular mission
or a person in the administrative or professional division of the public
service
serving at a South African diplomatic, consular or trade office in a foreign
State or a South African foreign service officer
grade VII or an honorary South
African consul-general, vice-consul or trade commissioner;
(bb)
of any government authority of such foreign State charged with the
authentication of documents in terms of the law of that foreign
State;
(cc)
of any notary public or other person in such foreign State who shall
be shown by a certificate of any person referred to in item
(aa)
or
(bb)
or of any diplomatic or consular officer of such foreign State in
the Republic to be duly authorized to authenticate such document
in terms of the
law of that foreign State; or
(dd)
of a commissioned officer of the South African National Defence
Force in the case of a document executed by a person on active
service”.
[45]
Above para 17.
[46]
The procedure which the
Minister is obliged to follow under section 11 is not before us and we have
heard no argument on it. It
is both unnecessary and inappropriate in these
proceedings to express any view with regard thereto.
[47]
Above para 13.
[48]
See
Nel v Le Roux NO and
Others
[1996] ZACC 6
;
1996 (3) SA 562
(CC);
1996 (4) BCLR 592
(CC) at para 11.
[49]
See
De Lange v Smuts NO
and Others
[1998] ZACC 6
;
1998 (3) SA 785
(CC);
1998 (7) BCLR 779
(CC) at para 23 - 4 where
Ackermann J reasoned as follows:
“The substantive and the procedural aspects of the protection of freedom
are different, serve different purposes and have to
be satisfied conjunctively.
The substantive aspect ensures that a deprivation of liberty cannot take place
without satisfactory
or adequate reasons for doing so. In the first place it
may not occur ‘arbitrarily’; there must, in other words, be
a
rational connection between the deprivation and some objectively determinable
purpose. If such rational connection does not exist
the substantive aspect of
the protection of freedom has by that fact alone been denied. But even if such
rational connection exists,
it is by itself insufficient; the purpose, reason or
‘cause’ for the deprivation must be a ‘just’ one. What
‘just cause’ more precisely means will be dealt with below.
Although para
(b)
of s 12(1) only refers to the right ‘not to be
detained without trial’ and no specific reference is made to the other
procedural components of such trial it is implicit that the trial must be a
‘fair’ trial, but not that such trial must
necessarily comply with
all the requirements of s 35(3). This was the Court’s unanimous holding
in respect of s 11(1) of the
interim Constitution in
Nel’s
case and
is equally applicable to s 12(1)
(b)
in the context of the entrenchment of
the ‘right to freedom and security of the person’ in s 12(1) of the
1996 Constitution,
there being no material difference between the two
provisions.”
[50]
Section 165 of the Constitution reads as follows:
“(1) The judicial authority of the Republic is vested in the
courts.
(2) The courts are independent and subject only to the Constitution and the law,
which they must apply impartially and without fear,
favour or
prejudice.
(3) No person or organ of state may interfere with the functioning of the
courts.
(4) Organs of state, through legislative and other measures, must assist and
protect the courts to ensure the independence, impartiality,
dignity,
accessibility and effectiveness of the courts.
(5) An order or decision issued by a court binds all persons to whom and organs
of state to which it
applies.”
[51]
Above n 38 at pages 40 - 1 of the typed judgment.
[52]
Above para 26.