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[2004] ZACC 22
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Director of Public Prosecutions: Cape of Good Hope v Robinson (CCT15/04) [2004] ZACC 22; 2005 (4) SA 1 (CC); 2005 (2) BCLR 103 (CC); 2005 (1) SACR 1 (CC) (2 December 2004)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 15/04
DIRECTOR OF PUBLIC PROSECUTIONS:
CAPE OF GOOD HOPE                                                                                          Â
Applicant
versus
TREVOR CLAUD ROBINSON                                                                           Â
Respondent
Heard on         :           24 August 2004
Decided on     :           2 December 2004
JUDGMENT
YACOOB J:
Introduction
[1]
Mr Robinson, the respondent, is a South African
citizen who was convicted by a Canadian court in 1996 of
sexually assaulting a fourteen year old girl in Canada.  He fled to
South Africa immediately after conviction and was sentenced
in his absence by
the same court to three years imprisonment.  In due course the Canadian
government requested the South African
government to extradite Mr Robinson to
Canada to serve the sentence.  He was eventually brought before a Wynberg
magistrate pursuant
to the
provisions of the Extradition Act
[1]
(the Act) for the purpose of
determining whether he was liable to be surrendered in terms of section 10 of
the Act.  The magistrate
found that he was.  However, the respondent
successfully appealed to the Cape of Good Hope High Court (the High Court).
[2]
  In allowing the appeal, the
High Court held that Mr Robinson was not liable to be surrendered because if
extradited to Canada
he would have to serve a sentence of imprisonment that had
been imposed in his absence.  In these circumstances, so the High Court
held,
Mr Robinson’s right to a fair trial would have been violated.  The High Court
accordingly made an order discharging the
respondent in terms of section 10(3)
of the Act.  The Cape of Good Hope Director of Public Prosecutions (the DPP)
seeks leave
to appeal against this judgment.  The arguments of the parties will
be better appreciated if some aspects of the Act are briefly
described at the
outset.
Some aspects of the Act
[2]
The Act determines the conditions that must be
complied with on the domestic plane before any person sought by a foreign State
to
undergo trial or serve a sentence there can be surrendered to the requesting
state for that purpose.
[3]
Â
Section 3 of the Act distinguishes between three types of extradition to a
foreign State:
[4]
where South Africa has concluded an extradition agreement with the foreign State,
[5]
where there is no extradition
agreement in place
[6]
and where the foreign State is a “designated State”.
[7]
  The extradition cases so far
considered by this Court
[8]
were both concerned with extradition proceedings where there was no extradition
agreement in existence and where the foreign State
concerned was not a
designated State.  One of the issues in this case is whether the extradition
agreement
[9]
between Canada and the Republic of South Africa that came into force more than
a year before the enquiry was held was applicable
to that enquiry.
[3]
The extradition process as well as the nature of
the proceedings before the magistrate could differ significantly depending on
whether
the Act alone is applicable or an extradition agreement is in force.  In
the absence of any agreement, the President must consent
to the surrender of
the person sought before the machinery of the Act can be put into operation for
the purpose of determining
whether or not there should be an extradition.Â
Moreover, the determination by the extradition magistrate as to whether the
person
is liable to be surrendered is made by reference to the provisions of
the Act alone.
[10]
Â
If however, there is an extradition agreement in force, no presidential consent
is necessary to trigger the process of extradition.
[11]
  In addition, the decision as
to whether a person is to be extradited including the question as to whether
documents have been
authenticated appropriately must be made by reference to
the agreement and the Act.
[12]
[4]
The Act provides for two types of extradition
enquiry: one applies in limited circumstances if extradition is sought by an
associated
State,
[13]
and the second applies in all other cases where extradition is requested by a
foreign State.  In the first case, the extradition
is commenced in terms of
section 4(3) read with section 6 of the Act and the enquiry conducted is that
described in section 12
of the Act.
[14]
Â
In all other cases, the extradition process begins in terms of a section 4(1)
request and the extradition enquiry is governed
by section 10 of the Act.
[15]
[5]
Section 10 of the Act requires the magistrate to
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.
[16]
Â
A magistrate who makes a positive finding in relation to these matters must
make an order committing that person to prison “to
await the Minister’s
decision with regard to his or her surrender”.
[17]
Â
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 she must discharge that person.
[18]
  A magistrate issuing a
warrant for committal to prison is obliged to forward a copy of the record of
the proceedings together
with a report deemed by the magistrate to be necessary
to the Minister immediately.  The magistrate does not in a section 10 enquiry

make an order for the surrender of the person sought to be extradited.  A
person may not be extradited consequent upon the magistrate’s
decision.  She may
be committed to prison only.
[6]
The Minister of Justice makes the decision
whether or not to surrender the person concerned to the foreign State in an
extradition
commenced in terms of section 4(1), and after a section 10
enquiry.  The Minister is empowered to do this by the provisions of
section 11
of the Act.  Section 11 provides:
“Minister may order or refuse surrender to
foreign State.—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, or 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.”
[7]
In summary therefore, a person whose extradition
is requested by a foreign State in terms of section 4(1) must be brought before

an extradition magistrate who determines whether the person is liable to be surrendered
in terms of section 10 of the Act.  The
Minister cannot make an order for the
extradition of any person unless a magistrate has committed that person to
prison after a
section 10 enquiry.  An order of committal by a magistrate is a
prerequisite to the Minister’s decision to surrender.  The extradition

magistrate and the Minister both play a role in the extradition if there is a
section 10 enquiry.
[8]
As I have already said, the section 12 enquiry
cannot be conducted unless the state seeking extradition is an associated State.Â

Canada is not.  A brief account of section 12 and the way in which it differs
from section 10 of the Act remains necessary however.
 Section 12 of the Act
provides:
“Enquiry where offence committed in
associated State.—
(1) If upon consideration of the evidence
adduced at the enquiry referred to in section 9(4)(b)(ii) the magistrate finds
that the
person brought before him or her is liable to be surrendered to the
associated State concerned, the magistrate shall, subject to
the provisions of
subsection (2), issue an order for his or her surrender to any person
authorized by such associated State to
receive him or her at the same time
informing him or her that he or she may within 15 days appeal against such
order to the Supreme
Court.
(2) The magistrate may order that the
person brought before him or her shall not be surrendered—
(a)        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;
(b)        where such person is serving, or is about to serve a
sentence to a term of imprisonment, until such sentence has
been completed; or
(c)        at all, or before the expiration of a period fixed by him
or her, or make such order as to him or her seems just
if he or she is of the
opinion that—
(i)         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 for 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
(ii)        the
person concerned will be prosecuted or punished or prejudiced at his or her
trial in the associated State
by reason of his or her gender, race, religion,
nationality or political opinion.
(3) If the magistrate finds that the
evidence does not warrant the issue of an order under subsection (1) or that
the required evidence
is not forthcoming within a reasonable time and the delay
is not caused by the person brought before him or her, he or she shall

discharge that person.”
[9]
Extradition magistrates presiding over both
section 10 and section 12 enquiries must enquire whether or not the person
brought before
the court is liable to be surrendered to the requesting state.Â
But there the similarity ends.  The Minister has no role in a
section 12
extradition.  Indeed all the powers conferred upon the Minister by section 11
are conferred upon the magistrate by
section 12, but the extradition magistrate
can exercise these powers only on a finding that the person sought is liable to
be surrendered.Â
The magistrate is empowered by section 12 to make an order for
the surrender of the person sought to any person authorised by the
associated State
to receive him or her
[19]
in the same way as section 11 authorises the Minister to order a person
committed to prison under section 10 to be surrendered
to any person authorised
by the foreign State.
[20]
Â
Section 11(b) sets out in detail the circumstances in which the Minister may
not order the extradition of a person who has been
committed in terms of
section 10.  Section 12(2) limits the power of the magistrate and prohibits the
extradition magistrate from
making an extradition order in almost exactly the
same terms as section 11(b) does in respect of the exercise of ministerial
power.
Proceedings in the High Court
[10]
The respondent took three points before the High
Court.  He submitted that:
(a)
he would be the victim of an unfair trial contrary to section 35 of
the Constitution if extradited to serve a sentence of imprisonment
imposed upon
him in his absence and that the magistrate ought to have discharged him on that
account;
(b)
the documents relied upon at the enquiry had not been properly
authenticated; and
(c)
it had not been shown that he had been convicted of an extraditable
offence.
[11]
The DPP in effect contended in support of the
magistrate’s decision that the magistrate in a section 10 enquiry had no power
to
decide whether or not the person sought should be extradited.  She had no
power to order the extradition of the person sought but
had the power only to
commit the person to prison pending the Minister’s decision in terms of section
11 of the Act.  It was
not within the purview of the magistrate conducting a
section 10 enquiry to determine whether it would be unjust or unreasonable
to
extradite the person.  That power it was argued is reserved for the Minister
where a section 10 enquiry is held
[21]
and is expressly conferred on the magistrate presiding over a section 12
enquiry.
[22]
[12]
The High Court rejected this argument.  It began
by ascertaining the meaning of the phrase “liable to be surrendered” in section

10(1) of the Act by reference to a dictionary definition of the word “liable”
which was rendered as “bound or obliged in
law or equity”.  On this basis, the
High Court adjudged that section 10(1) required the magistrate to decide
whether or not
the person sought was bound or obliged in law or equity to be
surrendered.  The High Court then directed its attention to the violation
of
the respondent’s constitutional right to a fair trial and concluded that it
would be wrong and a serious violation of this
right were the respondent to be
extradited to serve a sentence of imprisonment imposed in his absence.  In the
light of this finding
and in the context of the earlier conclusion that the
extradition magistrate had to decide whether the respondent was “obliged”
to be
surrendered, the court took the view that section 39(2) of the Constitution
[23]
required a court to interpret
section 10(1) so as to confer upon the extradition magistrate the power to
consider whether the respondent’s
constitutional rights would be infringed were
he to be extradited.  It accordingly held that the magistrate ought not in the
circumstances
to have made a section 10(1) order.  The High Court also held
that section 10(1) had to be construed to be a “filter” that
would preclude any
ministerial decision in terms of section 11 if the circumstances were such that
the constitutional rights of
the person sought would be violated upon
extradition.
[13]
In coming to this conclusion, the High Court
placed some emphasis on the distinction between judicial and administrative
decisions
and on a perception that it would be unsafe to entrust decisions to the
executive where a person’s constitutional rights were
implicated.  It held on
this basis that the extradition magistrate ought to have discharged the
respondent in terms of section
10(3).  The High Court allowed the appeal, set
aside the order of the extradition magistrate and discharged the respondent.Â
In the circumstances, it was unnecessary for the High Court to consider the
authentication issue or whether the respondent had been
convicted of an extraditable
offence.
[14]
The DPP seeks to challenge the correctness of
this decision in the application before this Court.  The respondent supports
the
decision of the High Court and contends as it did in the High Court that
the documents before the magistrate had not been properly
authenticated in
compliance with the extradition agreement.  The respondent also raises a
preliminary jurisdictional issue and
argues that the DPP is precluded by law
from appealing to this Court against the High Court decision.  I address this
first.
Does the DPP have the right to
approach this Court?
[15]
The DPP comes to this Court in terms of rule 19(2) which
provides:
“A litigant who is aggrieved by the
decision of a court and who wishes to appeal against it directly to the Court
on a constitutional
matter shall, within 15 days of the order against which the
appeal is sought to be brought and after giving notice to the other
party or parties
concerned, lodge with the Registrar an application for leave to appeal:
Provided that where the President has
refused leave to appeal the period
prescribed in this rule shall run from the date of the order refusing leave.”
The respondent contends that the DPP
is neither “aggrieved by the decision” of the High Court nor is that office a
“litigant”
within the meaning of rule 19(2).  It is necessary, before going to
these issues, to consider if this is an appeal on a constitutional
matter.
[16]
The decision of the High Court in issue here is that the respondent be
discharged in terms of section 10(3) of the Act.  In effect,
the decision of
the High Court was that the magistrate ought not to have declared that the
respondent was liable to be surrendered
within the meaning of section 10(1) of
the Act because the respondent would, contrary to the provisions of our
Constitution be
forced, upon extradition, to serve a sentence of imprisonment
imposed in his absence.  The High Court held that sections 9 and
10 of the Act,
read in terms of the Constitution precluded the magistrate from ordering that
the respondent was liable to be surrendered
when the consequence of that order
would be that the respondent could serve a sentence imposed in his absence.Â
The decision of
the High Court raises the issue of how the section 10(1) powers
of the extradition magistrate should be delineated.  Is the magistrate
empowered
to consider whether the constitutional rights of the person sought to be
extradited would be compromised by the fact
of the extradition?  If so, is she
empowered to make an order discharging an extraditee in terms of section 10(3)
of the Act if
it is found that constitutional rights of the person sought would
be violated upon extradition?  Or are these powers and duties
conferred solely upon
the Minister by section 11 of the Act?
[17]
In my view, the application for leave to appeal does raise a
constitutional matter.  Our Constitution confers the right to a fair
trial upon
the respondent.  Whether the extradition magistrate or the Minister has the
power to consider if and the extent to
which the respondent’s constitutional
rights would be violated if he is extradited is a matter concerned with the enforcement

of the fair trial right conferred upon the respondent in the Constitution.  So
too is the question whether an extradition magistrate
should discharge a person
sought and preclude the executive from making a decision to extradite if there
is some danger that the
fair trial rights of that person would be violated upon
extradition.
[24]
[18]
Another issue before us is whether the
magistrate ought to have applied the extradition agreement and conducted the
enquiry by its
lights.  The nature of the magistrate’s decision whether the
person sought is liable to be surrendered in terms of section 10(1)
would be
impacted upon by the terms of the extradition agreement in issue in a
particular case if it were to be held that the extradition
agreement was
applicable.  In that event, the extradition agreement would be part of the
statutory context in which the powers
of the magistrate ought to be
determined.  In the circumstances, the question whether the extradition
agreement was applicable
to the enquiry before the magistrate is, at the very
least an issue connected with a decision on a constitutional matter, within
the
meaning of this phrase in section 167(3)(b) of the Constitution.
[19]
The respondent contends that the magistrate ought, in any event,
to have ordered his discharge pursuant to section 10(3) of the Act
because the
documentary evidence was not properly authenticated.  Both parties agreed,
however, that the issue of whether the
documents were properly authenticated
does not raise a constitutional matter.  I cannot agree.Â
The
authentication debate will arise only if it is held that the High Court was
wrong in concluding that the extradition magistrate
should have discharged the
respondent.  In that event, the magistrate’s order that the respondent is
liable to be surrendered
will stand.  If the magistrate had been wrong in the
finding that the documents placed before her had been properly authenticated,

the respondent would stand the risk of being extradited on an unfair and
improper basis.
[20]
The extradition of a South African citizen raises a
constitutional matter because the citizen will be formally removed from this

country to stand trial or serve a period of imprisonment which would have an
impact on the constitutional rights of the person
sought to be extradited.  All
people who are unlawfully extradited to serve a sentence of imprisonment abroad
would have their
rights infringed contrary to the provisions of the
Constitution.
[25]
Â
If the magistrate was wrong in accepting the documentary proof and if the
respondent ought to have been discharged for want of
appropriate
authentication, the subsequent extradition of the respondent if it occurs, will
not be consistent with our Constitution.Â
In the circumstances, whether there
was proper authentication in the extradition enquiry before the magistrate is a
constitutional
matter or, at the very least, a matter connected with a
constitutional matter.
Section 167 of the Constitution
[21]
Rule 19 must be interpreted in the context of
section 167(3) and section 167(6) of the Constitution.  Section 167(3) declares
that
this Court is the highest court in all constitutional matters including
any issue concerning the interpretation, protection and
enforcement of the
Constitution.
[26]
Â
Section 167(6)(b) says that national legislation or the rules of the
Constitutional Court must allow a person to appeal directly
to this Court from
any other court with the leave of this Court, whenever it is in the interests
of justice.
[27]
[22]
Counsel argued that this section does not confer a right of appeal
directly to this Court.  All it does is to oblige the legislature
and those
responsible for making the rules of this Court to make provision for an appeal
directly to this Court.  It must be accepted
however that the purpose of the
provision is to ensure that there is a right of appeal directly to this Court
in the circumstances
envisaged, that is when it is in the interests of justice
to do so.  Section 167(6)(b) does not concern itself with appeals to
this Court
in the ordinary course and in the context of the hierarchy of courts described
in section 166 of the Constitution.Â
It is not concerned with appeals to this
Court from the Supreme Court of Appeal (SCA).  It is concerned really with
direct appeals
to this Court from any other court.  In other words, it is
concerned with a situation in which the SCA (and perhaps other courts)
is
bypassed.
[23]
The respondent emphasises that the Act does not expressly confer a right
of appeal on the state against the decision of an extradition
magistrate or a
high court discharging the person sought to be extradited.  Counsel submits
that section 167(6) requires provision
to be made for an appeal directly to
this Court only where there is a right of appeal to another court in terms of a
statute.Â
It does not require provision to be made for an appeal directly to
this Court if there is no right of appeal in the first place.Â
The submission
continues that the state has no right of appeal against the decision of the
High Court and section 167(6) therefore
does not require the legislature to
provide for a state appeal to this Court.
[24]
There is no warrant for reading this limitation into section 167(6).  It
is impossible to conceive why, if the purpose had been
to limit the extent to
which an appeal is guaranteed only to those who already have a right of appeal,
the limitation was not expressly
written into the provision.  More importantly,
the suggested interpretation has the consequence that an appeal on a
constitutional
issue to this Court should be provided for by the legislature
only if there was a right of appeal to another court on some other
basis.  The
absence of a right of appeal to another court would, according to the
submission, relieve the legislature of the obligation
to provide for an appeal
directly to this Court even if the interests of justice demanded this.  The
suggested interpretation
means that the Constitution would allow a judgment of
another court on a constitutional matter to remain unchallenged even if the

interests of justice cry out for its reconsideration.  This means in effect
that another court (the High Court in this case) will
be the highest court in
constitutional matters.
[25]
The argument is untenable.  Section 167(6) obliges the rules of the
Court or the legislature to provide for an appeal to this Court
with leave
whenever it is in the interests of justice to do so without any qualification.Â
The Constitution enables this Court
to exercise control over the cases it will
entertain and by doing so, to be the supreme guardian of the Constitution.  It
does
this by enabling this Court to decide whether it will hear an appeal on a
particular constitutional matter regardless of whether
or not there is a right
of appeal to any other court.  The construction contended for undermines the
purpose and scheme of the
section 167(6) access provisions as well as the
constitutional precept that this Court is the court of final instance in all constitutional

matters.  The suggestion that the right to appeal in terms of some other
legislation is a prerequisite for an appeal to this Court
on a constitutional
matter when in the interests of justice to do so has no substance.
[26]
The respondent also submitted that section 167(6) requires provision to
be made only for persons to appeal and that there is no obligation
to provide
for appeals by organs of state.  The respondent contrasts section 167(6) with
section 172(2)(d)
[28]
of the Constitution which confers the right upon a person and an organ of state
to appeal against or to apply to vary or confirm
an order that is subject to
confirmation in terms of section 172(2)(a) read with section 172(2)(c) of the
Constitution.  The submission
is that section 167(6) would, like section
172(2)(d), have referred to both organs of state and persons had the purpose of
the
section been to include both.  The word “person” in section 167(6) should
be given the same meaning as can be ascribed to it
in section 172(2)(d).  It
should bear a narrow meaning and exclude organs of state.
[27]
I do not agree.  The section must be interpreted in its context.  It is
contained within chapter 8 of the Constitution called “Courts
and
Administration of Justice”.  The chapter is concerned with judicial authority,
the structure of the court system, the jurisdiction
of courts, the appointment,
discharge and conditions of service of judges as well as with the office of the
National Director of
Public Prosecutions.  Section 167 is concerned with this
Court: its composition, quorum, jurisdiction and other matters.  Subsection
(6)
sets out the minimal levels of access that must be provided for.  In effect,
the section guarantees minimal access.  It mandates
that there must, at the
very least be access to this Court by way of appeal directly to it if this is in
the interests of justice.Â
No other provision in the Constitution is concerned
with access in a general sense.
[28]
The purpose of the measure is therefore to ensure that provision is made
for minimal levels of access to be determined and exercised
in terms of a
broad, flexible and value-laden principle: the interests of justice.  The focus
of the provision is not on the determination
of the kind of entity that ought
to have access but on the circumstances in which access ought to be made
available by the legislature.
[29]
Section 172(2) has a different and more specific focus that is to be
understood in its context.  Paragraphs (a) and (c) of section
172(2) provide
that orders of constitutional invalidity must be referred to this Court for
confirmation and must be confirmed before
they can be effective.  The focus of
subsection (d) is to give those aggrieved by the order a right of appeal to
this Court, to
make possible applications for variation or confirmation of
orders of constitutional invalidity and to identify precisely those
entities
who will be able to exercise these rights.  In the normal course, it would have
been expected that a non-state entity
would apply for confirmation of orders of
constitutional invalidity and that the state would be opposed to confirmation.Â
In these
circumstances, the use of the word “person” alone might have given
rise to difficulty.  Paragraph (d) of section 172(2) makes
it clear, in these
circumstances, that both an organ of state and any person can exercise any of
the rights conferred by the paragraph.Â
It does not follow from this that the
word “person” in section 167(6) has the same meaning and excludes organs of
state.Â
The meaning of the word “person” must be determined in its context.
[30]
The way in which the undertaking that judges must make in terms
of item 6 of schedule 2 of the Constitution is phrased is a useful

illustration.  A judge or acting judge undertakes to “administer justice to all
persons alike without fear, favour or prejudice,
in accordance with the
Constitution and the law”.  It could never be suggested that the word “person”
must be narrowly interpreted
to exclude the state.  This would have the absurd
result that a court may be fearful of, favour or prejudice the state if it is
a
party to proceedings before it.
[31]
Section 167(6) guarantees an appeal to this Court subject to its
leave and provided that the interests of justice render an appeal
appropriate.Â
The respondent’s submission implies that our Constitution guarantees an appeal
with leave of this Court when in
the interests of justice to all parties that
are not organs of state.  There was no obligation to allow organs of state a
right
to appeal subject to the leave of this Court even where this is in the
interests of justice.  It is inconceivable that the Constitution
would differentiate
between organs of state and others in this irrational way.  The word “person”
in section 167(6) must therefore
be given a broad meaning.  The rules of this
Court must make provision for organs of state to come to this Court directly on
appeal
when it is in the interests of justice subject to the leave of this
Court.
Is the DPP a litigant for the
purpose of rule 19?
[32]
The respondent’s submission that the DPP is not
a litigant for the purpose of rule 19 is grounded on three bases.  First, the

respondent relies on judicial pronouncements to the effect that extradition
proceedings are sui generis and cannot be equated with
criminal proceedings
.
[29]
 The second proposition is that the state is permitted by the Extradition Act
[30]
merely to appear at
extradition proceedings.  Thirdly the respondent places reliance on a decision by
a High Court full bench
that the state was not a party to extradition
proceedings.
[31]
Â
The submission is that if the DPP is not a party to extradition proceedings,
that office cannot be a litigant and that there
is in effect no lis between the
DPP and the respondent.
[33]
There can be no doubt that extradition
proceedings are sui generis
and that there are fundamental differences
between extradition proceedings and criminal proceedings.  It can therefore not
be gainsaid
that the DPP is not a party to extradition proceedings in the same
way in which it participates in criminal proceedings.  The role
of the state
representative in criminal proceedings is different to that in extradition
proceedings.  This, however, is a far
cry from the proposition that the state
is not a party to extradition proceedings at all.
[34]
The
Minister of Justice
case does however
say explicitly:
“The fact that under s 17 of the
Extradition Act, a Director of Public Prosecutions or any person delegated by
him or her, or
a public prosecutor, may appear at an enquiry, does not make the
State a party to the proceedings.”
[32]
This statement was made in the
process of deciding whether an extradition magistrate was correct in concluding
in extradition proceedings
that the state’s case had been closed in those
proceedings in accordance with the Criminal Procedure Act.
[33]
  The court concludes on this
issue:
“The finding of the first respondent that
he regarded the State case (the first respondent obviously means the South
African state)
as closed in terms of the Criminal Code (the reference is
obviously to the Criminal Procedure Act), is accordingly founded upon
a
misconception of the nature of the proceedings before him.  The State was not a
party to the proceedings before him, and there
was no ‘case’ which could be
‘closed’ in terms of the ‘Criminal Code’.”
[34]
[35]
It is apparent in particular from the second quotation in the preceding
paragraph that the issue to be considered in that case did
not require that
court to determine whether the state was at all a party to extradition
proceedings.  It was necessary in the
Minister of Justice
case to
determine whether there were sufficient differences between extradition
proceedings and criminal proceedings to render the
idea that the state had
“closed its case” before the magistrate to be patently wrong.  The conclusion
that the statement could
not be regarded as correct on the basis of the
material differences between extradition proceedings and criminal proceedings
cannot
be faulted.  It was however not necessary for the court to decide that
the state was not a party to extradition proceedings at
all.  It is perhaps
fair to conclude that the statement that the state is not a party to extradition
proceedings means, in its
context, that the state is not a party to extradition
proceedings in the same way as it is a party to criminal proceedings.  The

state does not close its case in extradition proceedings.  However, I consider
it desirable to examine whether the proposition
that the state is not a party
to extradition proceedings at all can be supported.
[36]
In support of the proposition that the state is not a party to
extradition proceedings, the
Minister of Justice
case relied on the
statement by Howie JA in a minority judgment of the Supreme Court of Appeal in
McCarthy
.
[35]
Â
That case was concerned with whether the discharge of a person sought to be
extradited on account of the fact that “the required
evidence is not
forthcoming within a reasonable time” in terms of what is now section 10(3) of
the Act
[36]
is a discharge on the merits.  The minority held that it was and in the course
of its reasoning made the statement relied upon
in the
Minister of Justice
case
in the following passage:
“Finally, there are legislative policy
considerations to be taken into account.  Extradition proceedings are, in
substance, in
the nature of criminal proceedings:
Bagattini
at 267H.  The
arrest, detention and committal provisions of the Act carry obvious
implications adverse to the right to liberty,
to the presumption of innocence
which is basic to the criminal law and to any such right which the accused may
have to be in this
country and to remain here.  The context is not one in which
this country is seeking to enforce its own criminal law; it is only
advancing
the hand of assistance to a foreign country to enforce the criminal law of that
State.  The proceedings are initiated,
and the case for extradition is
presented, by a South African prosecutor, but as pointed out in the
Sotiriadis
case supra at 703f, in reality it is the foreign State making the extradition
request that fills the role of prosecutor.  It is
that State that must obtain
the required evidence and have it adduced.  The domestic prosecutor,
representing the South African
State, is merely the conduit.”
[37]
[37]
However, the majority judgment
[38]
concluded that the discharge
in terms of that part of the now section 10(3) quoted above could not be a
discharge on the merits
and distanced itself from that part of the minority
judgment relied upon by the
Minister of Justice
case saying:
“I also do not consider that policy
considerations warrant the conclusion that the Legislature intended a discharge
under the
second part of s 10(2) to be final.  In general the reason why State
A agrees in an extradition treaty to assist State B to enforce
the criminal law
of the latter in regard to crimes committed within its jurisdiction is
precisely because State B accepts a reciprocal
obligation.  In construing
legislation of State A applying to extradition treaties too much emphasis
should therefore not be placed
on the fact that in proceedings under such
legislation State A is not enforcing its own criminal law but is assisting
State B to
enforce the latter’s penal law.”
[39]
[38]
I agree with these remarks.  It is inaccurate to
say that the DPP is no more than a conduit for the foreign State.  Except in
extradition proceedings initiated by warrants of arrest issued in an associated
State
[40]
extradition proceedings before a magistrate are held because there has been a
request from a foreign State for the extradition
of a person.  What is more, South
Africa is willing to do everything possible to facilitate that extradition in
the context of
foreign relations either in compliance with an extradition
agreement
[41]
or after “the President has in writing consented to” the surrender of that
person.
[42]
Â
The state must decide whether the evidence available justifies the initiation
of proceedings before a magistrate.  The DPP will
normally make a decision
whether to institute or continue extradition proceedings.  The DPP in the
proceedings before the magistrate
and before the High Court contended on behalf
of the state that the respondent ought to be extradited.  The respondent
contended
strenuously that he should not.  The contention of the DPP was really
part of the attempt by the state to extradite the respondent
because the state
had obviously formed the view, in the conduct of its foreign relations, that
the respondent should be extradited.Â
As was said in the
McCarthy
majority judgment:
“In a criminal matter the
lis
between
the State and the accused is whether or not he is guilty of the crime with
which he is charged . . . As regards a person
accused of an offence included in
an extradition agreement and allegedly committed within the jurisdiction of a
foreign State which
is a party to such an agreement, the cardinal question in
proceedings under ss 9 and 10 of the Act is whether there would be sufficient

reason for putting him on trial for the offence, had it been committed in the
Republic.”
[43]
[39]
There is an issue between the state and the person
sought in extradition proceedings.  The state contends for extradition and the

person sought is opposed to it.  The extradition magistrate must determine the
issue.  On appeal, in a broad sense, the same
issue must be determined.  The
proposition that the DPP is not a litigant for purposes of rule 19 would
therefore be inconsistent
with the provisions of section 167(6) of the
Constitution which, as I have held, requires the rules of this Court to enable
an
organ of state to appeal to this Court when it is in the interests of
justice to do so but subject to leave.  The submission that
the state is not a
party or a litigant in extradition proceedings is misplaced and cannot prevail.
Is the applicant an aggrieved
party?
[40]
The submission that the DPP was not aggrieved by
the decision of the High Court is also unsustainable.  The meaning of the term

“aggrieved” must be ascertained in the light of sections 167(3) and (6) of the
Constitution.  The state argued before the
High Court in furthering the cause of
the extradition of the respondent to which the state had obviously committed
itself that
there was no constitutional bar to the extradition of the
respondent.  The High Court held that there was.  The state would wish
to
extradite the respondent if there were no constitutional bar.  It has a direct
and substantial interest in the adjudication
of the issue and is therefore
aggrieved.  The state is not merely “disappointed with the outcome of the
proceedings” before
the High Court, as the respondent would have it, but has
suffered a grievance cognisable in law.  A conclusion that the DPP is
not an
aggrieved litigant in this case would run counter to the provisions of section
167(6) of the Constitution, because it would
result in this Court not being
accessible to an organ of state even if this is in the interests of justice.Â
The state is therefore
an aggrieved litigant.
Interests of justice
[41]
The appeal can be entertained only if it is in
the interests of justice to do so.  This case raises important constitutional
questions
concerning the interpretation of section 10 of the Act.  A final
decision by this Court on the question raised is desirable so
that there will
be certainty concerning the ambit of the powers of a magistrate in an
extradition enquiry.  All concerned ought
to know as soon as possible whether
in a section 10(1) enquiry an extradition magistrate must take into account the
possible infringement
of constitutional rights of a person sought to be
extradited.  It is certainly in the interests of justice for these issues to
be
considered.  We are not concerned at this stage with the considerations that
ought to be mentioned in the report of the extradition
magistrate to the
Minister contemplated by section 10(4) of the Act.  It is appropriate to
determine whether it is in the interests
of justice for this Court to decide
the authentication issue after the discussion concerning the powers of a
magistrate conducting
a section 10 enquiry.
Application to lead further
evidence
[42]
Shortly before the date of the hearing, the
respondent sought to file certain further affidavits aimed at establishing that
he had
not waived the right to a fair trial.  This, as I understand it, was in
response to the contention in the written argument of the
DPP that the
respondent had waived his right.  This was of course followed by an application
by the DPP to file material concerning
these matters and an effort by the
respondent to file further affidavits in reply concerning the question of
waiver.  This evidence
cannot be admitted.  It raises an irresoluble conflict
in relation to waiver.  The explanation advanced for the late tender of
the
evidence is that it was necessary for the respondent to deal with the waiver
point.  This is not a satisfactory explanation.
 In any event, as will be seen
from the findings in this judgment, the evidence is not material.
[44]
The merits
[43]
The first issue we have to decide is whether the
extradition magistrate, in determining whether the person whose extradition is
sought is liable to be surrendered within the meaning of section 10(1), is empowered
to take into account the fact that the person
would if indeed extradited,
become the victim of an unfair trial.  The term “liable to be surrendered”
takes us back to section
3.  Subsection (1) of this section is concerned with a
person who is “liable to be surrendered” in accordance with the terms
of an
extradition agreement while subsection (2) is concerned with a person being
liable to be surrendered in the absence of an
extradition agreement.  The ambit
of the power of the extradition magistrate to determine whether the person
sought is liable
to be surrendered will depend on the terms of the extradition
agreement if the terms of an existing extradition agreement are applicable
to
the proceedings.  Conversely an extradition agreement would be irrelevant to
the determination of this question if it were
not applicable to the extradition
proceedings in issue.  I have already said that there is a dispute as to
whether the extradition
agreement between South Africa and Canada was
applicable to the extradition proceedings before the magistrate.  We must
decide
this before considering what section 10 of the Act requires.
Was the extradition agreement
applicable?
[44]
The magistrate came to the conclusion that the
extradition agreement was not applicable to the proceedings before her.  The
basis
of this conclusion is not clear.  It does seem however that she did place
some emphasis on the fact that the magistrates’ court
was a creature of statute
and on the fact that the extradition agreement had not existed at the time the
documents were authenticated.Â
There is also a statement by the magistrate in
the record of the extradition proceedings to the effect that it was for the
Minister
of Justice and not for her to consider the terms of the extradition
agreement.  The High Court concluded that the extradition agreement
was
applicable to the proceedings before the magistrate.  The respondent supported
the High Court judgment while the DPP submitted
that it did not matter for the
purposes of this case whether the extradition agreement was applicable or not.
[45]
Some of the pertinent facts must be recited
first.  The extradition agreement between South Africa and Canada was signed by
the
parties on 12 November 1999.  The seal fixed to the documents relied upon
by the state is dated 15 November 2000.  The extradition
was requested on 27
November 2000.  The agreement was approved by the South African parliament on 3
April 2001 and approved by
Canada on 4 May 2001.
[45]
  Canada informed South Africa
of this on the same day and the agreement was published in South Africa on 18
May 2001.
[46]
 The respondent was arrested in South Africa on 18 January 2002.  The enquiry
before the magistrate in fact commenced on 25 June
2002.  It follows that the
extradition agreement came into operation after the request for the extradition
but before the arrest
of the respondent and before the date of the commencement
of the enquiry.  It was already in force when the enquiry was held before
the
extradition magistrate.
[46]
The High Court was inclined to the view, on the
authority of the judgment of the Appellate Division in
Eliasov
,
[47]
that the Act applied to the
extradition proceedings before the magistrate.  The essence of the reasoning of
the Appellate Division
is reflected in the following passage:
“It is . . . quite clear that the enquiry,
which the magistrate was by sec. 9 (1) enjoined to hold in relation to the
appellant,
commenced on 9
th
July, 1965, and not upon the date of the
appellant’s arrest on 10
th
April, 1965, or the date of the issue of
the warrant for his further detention under sec. 7 of the Act.  The appellant
was detained
in custody until 12
th
April, and thereafter he was
allowed out on bail, and on 9
th
July, 1965, the enquiry commenced.Â
By that time the extradition agreement contained in Proc. R151 of 1965 had
become operative
within the Republic, and the magistrate was accordingly
obliged, in terms of sec. 9(4) of the Act, to apply the provisions of sec.
12
in relation to the enquiry.”
[48]
There is no suggestion that the
treaty applicable in this case is more disadvantageous to the respondent than
the terms of the Act.Â
It follows that we need not consider whether a court
will have the discretion not to apply the agreement if it had been more
disadvantageous
than the Act.  I accordingly conclude that the extradition
agreement in this case was applicable to the extradition enquiry before
the
magistrate and that the enquiry ought to have been decided on that footing.
The section 10(1) power of
the extradition magistrate
[47]
The circumstance that the magistrate ought to
have decided whether the respondent was liable to be surrendered in the light
of the
terms of the extradition agreement requires us to construe the phrase
“liable to be surrendered” in section 10(1) of the Act
with reference to
section 3(1) and the extradition agreement itself.  Section 3(1) of the Act
provides:
“Any person accused or convicted of an
offence included in an extradition agreement  and committed within the
jurisdiction of
a foreign State a party to such agreement, shall, subject to
the provisions of this Act, be liable to be surrendered to such State
in
accordance with the terms of such agreement, whether or not the offence was
committed before or after the commencement of this
Act or before or after the
date upon which the agreement comes into operation and whether or not a court
in the Republic has jurisdiction
to try such person for such offence.”
[48]
Attention must be drawn to three aspects of
section 3(1) at the outset.
(a)
First, section 3(1) provides for the possible extradition of a
person accused or convicted of an offence.  This is not a case in
which the
respondent is accused of the commission of an offence.  He has already been
convicted in Canada.
(b)
Section 3(1) expressly provides that a person is liable to be surrendered
“subject to”
[49]
the terms of the Act and in accordance with the terms of the extradition
agreement.  The extradition treaty and the Act are not
inconsistent with each
other in relation to any matter relevant to the decision of this case.  We need
not therefore decide whether
the treaty or the Act will prevail if there were
to be an inconsistency.
(c)
The third matter relates to extraditable offences.  Section 3(1)
allows extradition of a person convicted of an offence included
in an
extradition agreement.  However section 2(1) of the Act makes it clear that
only an “extraditable offence or offences”
may be specified in any extradition
agreement.
[49]
In summary, the respondent will be liable to be
surrendered and an order of committal by the magistrate will be justified if:
(a)
he has been convicted of an extraditable offence that is mentioned
in the extradition agreement; and
(b)
there is nothing in the Act or in the extradition agreement read
subject to the Act that warrants a finding that the respondent is
not liable
for extradition.
The magistrate is therefore
required to determine these two matters only.  Issue (a) does not entail a consideration
of whether
the respondent will be subject to an unfair trial if extradited.  It
remains necessary to consider whether issue (b) requires the
magistrate to
consider this aspect.  In other words is there anything in the Act or the
extradition agreement which requires the
magistrate to ensure that the
respondent will not be subject to an unfair trial before concluding that the
respondent is liable
to be surrendered?
[50]
The High Court sought to derive this power from
the phrase “liable to be surrendered” in section 10(1).  It construed the
section
so as to oblige the magistrate not to grant an order for committal if a
person sought to be extradited would be subjected to imprisonment
imposed
during her absence upon extradition.  I cannot find the power there.  The High
Court erred in several respects in the
process of the reasoning that led to
this conclusion.  Before traversing this reasoning however we must remind
ourselves that
a decision by an extradition magistrate in terms of section
10(1) of the Act that the person sought is liable to be surrendered
does not
result in the extradition of that person.  We must not forget that the decision
to extradite is made by the Minister
in terms of section 11 of the Act.
[51]
First, the High Court incorrectly interpreted
the phrase to mean “bound or obliged in law or equity to be surrendered.”  A dictionary

definition may be a convenient starting point but they are often not very
helpful in determining the meaning of a phrase in the
setting in which we find
it.  The context is all important.  It is self-evident that the magistrate
conducting a section 10 enquiry,
as distinct from the magistrate conducting an
enquiry mandated by section 12 of the Act makes no order to surrender.  Section
11 of the Act does not oblige the Minister to order extradition.  She may order
extradition if she chooses
[50]
and is expressly permitted not to order extradition in certain defined
circumstances.  A finding that the person is liable to
be surrendered in terms
of section 10(1) obliges nobody to do anything; the decision places no
obligation whatsoever whether directly
or indirectly upon the Minister or any
other organ of state for that matter.
[52]
Secondly, the High Court ignored the fact that
it is the Minister who is empowered to consider whether it will be unjust or
unreasonable,
having regard to all the circumstances of the case to surrender
the person concerned.
[51]
Â
This would suggest that the magistrate is not authorised to make that decision
under section 10(1).  The suggestion that the
magistrate has no power to make a
decision of that kind under section 10(1) is strengthened by the fact that the
magistrate conducting
the section 12 enquiry is expressly empowered not to make
an order of surrender if this is not in the interests of justice or if
it would
be unjust or unreasonable in all the circumstances of the case.
[52]
  The scheme of the Act makes
it quite clear that the question whether a person sought to be extradited will
become the victim
of an unfair trial as a result of the extradition must be
weighed in the equation at the time when consideration is being given
to
whether there should be a surrender.  It is premature to take this factor into
account any earlier.
[53]
Thirdly, the court erred in concluding that the
provisions of section 39(2) of our Constitution
[53]
required a court to construe
the phrase so that the power contended for by the respondent is provided for by
it.  There is nothing
constitutionally objectionable in a statutory scheme that
requires the magistrate to determine whether the person sought to be extradited

has been convicted of an extraditable offence and thereafter to grant the
Minister a discretion including a discretion to determine
whether it is in the
interests of justice to extradite any person.  Nor is it appropriate to
determine whether a law is objectionable
on the basis of an underlying
apprehension that members of the executive entrusted with making certain
decisions will not do it
properly.  It was this apprehension which motivated
the statement that members of the executive have been known to have been
fallible.
[54]
Fourthly, the High Court misconceived the extent
of its power to construe a legislative provision consistently with the
Constitution.Â
A court’s power to do so is not unqualified; a court cannot give
a meaning to the provision which it regards as consistent with
the Constitution
without more.  The provision concerned must be reasonably capable of the
preferred construction without undue
strain to the language of the provision.
[54]
  The words “liable to be
surrendered”, in their context, are incapable of bearing the meaning contended
for.
[55]
Fifthly, the High Court failed to take account
of the fact that the decision of the Minister is subject to judicial control.Â
It
is not appropriate to determine in this case the principles that would
govern a challenge to a decision by the Minister to extradite.Â
That had better
be done when the occasion arises.  There is no need to say more than that the
Act expressly contemplates that
“any provincial or local division of the Supreme
Court [could] upon application made after reasonable notice to the Minister,

[order the] discharge from custody [of the person sought to be extradited] on
the ground that there is not sufficient cause for
his further detention”.
[55]
[56]
Finally, the High Court relied on two passages
from
Mohamed
[56]
without specifying their relevance.  The first passage relied upon was:
“[58]     These cases are consistent with
the weight that our Constitution gives to the spirit, purport and objects of
the
Bill of Rights and the positive obligation that it imposes on the State to
‘protect, promote and fulfil the rights in the Bill
of Rights’.  For the South
African government to co-operate with a foreign government to secure the
removal of a fugitive from
South Africa to a country of which the fugitive is
not a national and with which he has no connection other than that he is to be

put on trial for his life there, is contrary to the underlying values of our
Constitution.  It is inconsistent with the government’s
obligation to protect
the right to life of everyone in South Africa, and it ignores the commitment
implicit in the Constitution
that South Africa will not be party to the
imposition of cruel, inhuman or degrading punishment.”  (Footnotes omitted.)
The second passage was:
“[71]     Nor would it necessarily be out
of place for there to be an appropriate order on the relevant organs of State
in
South Africa to do whatever may be within their power to remedy the wrong
here done to Mohamed by their actions, or to ameliorate
at best the
consequential prejudice caused to him.  To stigmatise such an order as a breach
of the separation of State power as
between the Executive and the Judiciary is
to negate a foundational value of the Republic of South Africa, namely
supremacy of
the Constitution and the rule of law.  The Bill of Rights, which
we find to have been infringed, is binding on all organs of State
and it is our
constitutional duty to ensure that appropriate relief is afforded to those who
have suffered infringement of their
constitutional rights.”  (Footnotes
omitted.)
[57]
In
Mohamed
South African state operatives
had facilitated the removal of the applicant to the United States of America to
stand trial there
for certain serious offences without exacting an assurance
from the government of that country that the death penalty would not
be imposed
upon Mohamed and that the penalty would, if imposed, not be carried out.  This
Court held that the South African state
had, by doing this, acted in a way that
was inconsistent with our Constitution.  Consequently, this Court made a
declaratory order
to this effect.  The first quoted passage is aimed at a
justification of the conclusion that the conduct of the South African
government was inconsistent with the Constitution.  The second passage was part
of the motivation of the declaratory order that
was subsequently made.
[58]
Mohamed’s
case
was not concerned with the correct interpretation of the phrase “liable to be
surrendered” in section 10(1) of the Act.Â
An issue in that case was whether
Mohamed had been deported or extradited.  This Court concluded that it did not
matter.
[57]
Â
In the context of this case, the ratio of
Mohamed
means no more than
that the Minister ought not to extradite a person sought without seeking an
assurance, if relevant, that the
death penalty would not be imposed or if
imposed, would not be carried out.  It is perhaps relevant that the extradition
agreement
[58]
enables a requested state to refuse extradition “where the offence carries the
death penalty under the law of the Requesting
State, unless that State undertakes
that the death penalty will not be sought, or if a sentence of death is imposed
it will not
be carried out.”
[59]
The declaratory order in
Mohamed’s
case
was made after a finding of unconstitutionality not in the apprehension that
someone might act unconstitutionally later.Â
There was no statement there that
an extradition magistrate is obliged to order a discharge where the
extradition, if it ensued,
would put the fair trial rights of the person sought
in jeopardy.  Nor is
Mohamed’s
case authority for the proposition that
an extradition magistrate must discharge the person sought if the death
sentence might
be imposed.  The proper approach of a magistrate, if all other
requirements are met, would be to grant an order for the committal
of the
person sought.  It is for the Minister in terms of section 11 of the Act to
determine that issue.Â
Mohamed’s
case does not support the High Court
conclusion.
[60]
The High Court was accordingly incorrect in
holding that the power contended for resides in section 10(1).  The next
question to
be answered is whether the extradition agreement interpreted in the
light of the Act gives the extradition magistrate the power
to discharge in the
circumstances of the respondent in the present case.  The respondent has not
pointed to anything.  Nor have
I been able to find any provision which could be
said to confer that power.  It follows that the High Court wrongly concluded
that the extradition magistrate should have discharged the respondent on the
basis that he would, if extradited, have to serve a
sentence of imprisonment
imposed upon him in his absence.  The authentication issue must therefore be
discussed next.
Authentication
[61]
We must first answer the question whether it is
in the interests of justice for this Court to consider the authentication
issue.Â
Counsel submitted that we should, if we find that the High Court was
wrong about the section 10 power of an extradition magistrate,
refer the
authentication question to the High Court for determination.  It will not be in
the interests of justice to do this
because it will lead to undue delay and a
piecemeal consideration of the issues in this case.  It is in the interests of
justice
for this Court to decide whether the documents were properly
authenticated.
[62]
Authentication is governed by Article 8 of the
extradition agreement which is headed “Authentication of Supporting Documents”

and which provides:
“Where the law of the Requested State
requires authentication, documents shall be authenticated by a statement by the
Minister
responsible for Justice or a person designated by her or him under the
seal of that Minister identifying the person who has signed
the document, including
that person’s position or title.”
[63]
The provisions of Article 8 are to be complied
with only where the law of the requested state requires authentication.  The
Act
does require authentication
[59]
and, in fact authorises authentication “in the manner provided for in the extradition
agreement concerned”.
[60]
Â
The respondent’s submission that article 8 of the treaty is applicable to authentication
in this case is correct.  It is not
necessary for us to decide whether, authentication
in the manner provided for in section 9(3) of the Act could suffice if the
provisions
of article 8 had not been complied with.
[64]
We must now determine what Article 8 in fact
requires.  First, the documents relied upon must be authenticated either by the
statement
of the Minister responsible for Justice or by a statement of a person
designated by that Minister.  Secondly, if the person is
designated by the
Minister, the designation must be made under the seal of that Minister.  This
does not mean that the Minister
must make a statement to the effect that she
has designated the person concerned.  The requirement that the Minister make a
statement
is limited only to the situation where she authenticates the document
in other words where the documents are not authenticated by
a designated
person.  It must be clear from all the circumstances however, that the
Minister’s seal was affixed for the purpose
of designating a person and for no
other purpose and that the placement of the seal has the effect of designating
a particular
person without ambiguity.  Thirdly, where a Minister has
designated that person, there must be a statement by the person designated

identifying the person who has signed the document requiring authentication
including the position and title of the signatory.Â
Section 8 of the
extradition agreement does not require a statement by the person who has been
designated by the Minister to the
effect that she has been so designated.  The
documents submitted must be examined on this basis.
[61]
[65]
The documents in issue were evidently not
authenticated by a statement of the Minister.  They were in fact authenticated
by a person
designated by the Minister under her seal of office.  The seal of
the Minister of Justice has been placed on the second page of
a document.  That
page has been signed by Barbara Kothe who describes herself as “Counsel,
International Assistance Group, Department
of Justice of Canada”.  The
statement of Kothe is printed on a letterhead of the Department of Justice of
Canada.  Indeed the
letterhead bears what is apparently a representation of the
Canadian flag.  To the right of the seal is the imprint of a rubber-stamp
which
indicates that the Deputy Minister of Foreign Affairs of Canada confirms the
signature of Barbara Kothe of the Department
of Justice.  Of course it is also
relevant that a foreign service officer at the South African embassy confirms
the signature
of the Deputy Minister of Foreign Affairs.
[66]
We need to determine what the impact of the seal
is.  Does the seal of the Minister of Justice confirm the signature of the
Deputy
Minister of Foreign Affairs or that of the official Barbara Kothe who is
part of the Department of Justice?  An analysis of the
document suggests the latter.Â
In the first place, the imprint of the Foreign Affairs rubber-stamp is next to
the seal of the
Minister of Justice and not under it.  On the other hand a
deliberate effort has been made to ensure that the signature of Barbara
Kothe
is under the seal in the sense that the seal is concerned with that signature
and nothing else.  The second page of the
document has been folded where the
signature appears and the seal has been fixed in such a way that the signature
of Barbara Kothe
could not have been placed on the document after the seal had
been fixed.  Considerable trouble was taken to ensure that the seal
was
relevant to that signature.
[67]
Although there is no statement in relation to
designation, I am satisfied that the seal was intended to and does in fact
designate
Barbara Kothe as the person making the statement.  It is
inconceivable that the seal of the Minister of Justice was placed upon
the
document for any purpose other than to designate Barbara Kothe.  We know that
as at the date upon which the seal was fixed
upon the document, the extradition
agreement had been concluded but was not yet in force.  It cannot be argued in
these circumstances
that the serious act of fixing the seal on the document was
performed for no reason.  A statement by the Minister to the effect
that he had
designated Barbara Kothe would have simplified the determination of the
authentication issue.  The absence of such
a statement does not however lead to
the conclusion that authentication is bad.  To require a statement in the
circumstances of
this case would be to raise mere form above substance.  I am
satisfied that Barbara Kothe has been designated under the seal of
the Minister
of Justice as required by Article 8.
[68]
The statement of Barbara Kothe does identify the
persons who signed the documents attached to it and gives the position and
title
of the persons concerned.  The documents were thus properly authenticated
in terms of Article 8 of the extradition agreement.
[69]
It was not in dispute before this Court that the
offence of which the respondent has been convicted in Canada is an extraditable

offence in terms of the Act and is covered by the terms of the extradition
agreement.  In the circumstances the appeal must succeed.
[70]
There is no reason to make any order as to
costs.
Summary
[71]
This judgment holds that an extradition
magistrate conducting an enquiry in terms of section 10(1) of the Act has no
power to consider
whether the constitutional rights of the person sought may be
infringed upon extradition.  That aspect must be considered by the
Minister in
terms of section 11 of the Act.  The correctness or otherwise of the decision
of the Minister to extradite the respondent
is subject to judicial control.  This
judgment also holds that the documents before the extradition magistrate were
all properly
authenticated as required by the extradition agreement.  The
consequences of this judgment are that the extradition magistrate’s
order for
the committal of the respondent to prison stands and that it is for the
Minister to decide whether the respondent should
be extradited in all the
relevant circumstances including the fact that he will, if extradited, have to
serve a term of imprisonment
that was imposed upon him in his absence.
The order
[72]
The following order is made:
(1)
The application for leave to appeal is granted.
(2)
The appeal succeeds.
(3)
The order of the Cape High Court is set aside and is replaced by the
following order:
The appeal
is dismissed.
Langa ACJ, Mokgoro J, Moseneke J,
O’Regan J, Sachs J, Skweyiya J and
Van der Westhuizen J concur in the
judgment of Yacoob J.
For the applicant:                  P
Hodes SC and A Katz instructed by the State Attorney, Cape Town.
For the respondent:               JC
Heunis SC, E van der Horst and MF Osborne instructed by Walkers Inc.
[1]
Act 67 of 1962.
[2]
Robinson v The State
, (CPD) Case No A1060/02, 7 April 2004,
as yet unreported.
[3]
Harksen v President of the Republic of South Africa and Others
[2000] ZACC 29
;
2000 (2) SA 825
(CC);
2000 (5) BCLR 478
(CC) para 14.
[4]
Id para 5.
[5]
Section 3(1) of the Act.
[6]
Section 3(2) of the Act.
[7]
Section 3(3) of the Act.
[8]
See
Harksen
generally above n 3 and
Geuking v President
of the Republic of South Africa and Others
2003 (3) SA 34 (CC); 2004 (9)
BCLR 895 (CC).
[9]
Published in Government Gazette 22284 GN R391, 18 May 2001.
[10]
Section 10 read with section 3(2) of the Act.Â
Harksen
above
n 3 para 14;
Geuking
above n 8 at 29.
[11]
Section 3(1) read with section 4(1) of the Act.
[12]
Section 10 read with section 3(1) of the Act.
[13]
Section 6 of the Act read with the definition of “associated State”
in section 1.
[14]
Section 9(4)(b)(ii) read with section 4(3) and section 6 of the
Act.
[15]
Section 9(4)(a) and (b)(i) of the Act.
[16]
Section 10(1).
[17]
Section 10(1).
[18]
Section 10(3).
[19]
Section 12(1) of the Act.
[20]
Section 11(a).
[21]
Section 11(b)(iii).
[22]
Section 12(2)(c)(i).
[23]
Section 39(2) provides:
“When interpreting any legislation,
and when developing the common law or customary law, every court, tribunal or
forum must promote
the spirit, purport and objects of the Bill of Rights.”
[24]
It is not necessary to consider whether the right to a fair trial
in our Constitution has any extra-territorial application.  See
Kaunda and
Others v President of the RSA and Others (2)
2004 (10) BCLR 1009
(CC) para
32.
[25]
Geuking
above n 8 para 1.
[26]
Section 167(3) provides:
“The Constitutional Court—
(a)           is the highest court in
all constitutional matters;
(b)           may decide only constitutional matters, and issues
connected with decisions on constitutional matters; and
(c)           makes the final decision whether a matter is a
constitutional matter or whether an issue is connected with
a decision on a
constitutional matter.”
[27]
Section 167(6) provides:
“National legislation or the rules of
the Constitutional Court must allow a person, when it is in the interests of
justice and
with leave of the Constitutional Court—
(a)           to bring a matter
directly to the Constitutional Court; or
(b)           to appeal directly to
the Constitutional Court from any other court.”
[28]
Section 172(2) of the Constitution provides:
“(a) The Supreme Court of Appeal, a
High Court or a court of similar status may make an order concerning the
constitutional validity
of an Act of Parliament, a provincial Act or any
conduct of the President, but an order of constitutional invalidity has no
force
unless it is confirmed by the Constitutional Court.
(b) A court which makes an order of
constitutional invalidity may grant a temporary interdict or other temporary
relief to a party,
or may adjourn the proceedings, pending a decision of the
Constitutional Court on the validity of that Act or conduct.
(c) National legislation must provide
for the referral of an order of constitutional invalidity to the Constitutional
Court.
(d) Any person or organ of state with
a sufficient interest may appeal, or apply, directly to the Constitutional
Court to confirm
or vary an order of constitutional invalidity by a court in
terms of this subsection.”
[29]
Geuking
above n 8 para 26.  See also
S v McCarthy
[1995] ZASCA 56
;
1995 (3) SA 731
(A) at 741G-J and 749E-G;
Harksen v Attorney-General, Cape
and Others
1999 (1) SA 718
(C) para 83;
Harksen v Director of Public
Prosecutions, Cape, and Another
1999 (4) SA 1201
(C) paras 38-40.
[30]
Section 17 of the Act.
[31]
Minister of Justice and Another v Additional Magistrate, Cape
Town
2001 (2) SACR 49
(C) at 63d.  (The
Minister of Justice
case.)
[32]
Id at 62f.
[33]
Act 51 of 1977.
[34]
Id at 63c-d.
[35]
McCarthy
above n 29 at 732.
[36]
It was then section 10(2).
[37]
McCarthy
above n 29 at 741G-J.
[38]
Id at 747
ff
.
[39]
Id at 748B-D.
[40]
Sections 4(3), 6, 9(4)(b)(ii) and 12 of the Act.
[41]
Section 3(1).
[42]
Section 3(2).
[43]
McCarthy
above n 29 at 749E-G.
[44]
Rail Commuters Action Group and Others v Transnet Ltd t/a
Metrorail and Others
CCT 56/03, 26 November 2004, as yet unreported, para
43.
[45]
Article 22(1) of the agreement provides:
“This
Treaty shall enter into force on the date on which the Contracting Parties have
notified each other in writing that their
respective legal requirements have
been met.  The effective date of entry into force will be the date of last
notification.”
[46]
Above n 9.
[47]
S v Eliasov
1967 (4) SA 583 (A).
[48]
Id at 593H-594A.
[49]
S v Marwane
1982 (3) SA 717
(A) at 747H-748A.
[50]
Section 11(a).
[51]
Section 11(b)(iii).
[52]
Section 12(2)(c)(i).
[53]
Section 39(2) provides: “When interpreting any legislation, and
when developing the common law or customary law, every court,
tribunal or forum
must promote the spirit, purport and objects of the Bill of Rights.”
[54]
Bernstein and Others v Bester and Others NNO
[1996] ZACC 2
;
1996 (2) SA 751
(CC);
1996 (4) BCLR 449
(CC) para 59 and the authorities referred to in n 87
thereof;
Nel v Le Roux NO and Others
[1996] ZACC 6
;
1996 (3) SA 562
(CC);
1996 (4) BCLR
592
(CC) para 18;
De Lange v Smuts
NO
and Others
[1998] ZACC 6
;
1998 (3)
SA 785
(CC);
1998 (7) BCLR 779
(CC) para 85;
Investigating Directorate:
Serious Economic Offences and Others v
Hyundai Motor Distributors (Pty)
Ltd and Others: In Re Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO
and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC) paras 22-26
;
De Beer NO v North-Central Local Council and
South-Central Local Council and Others (Umhlatuzana Civic Association Intervening)
[2001] ZACC 9
;
2002 (1) SA 429
(CC);
2001 (11) BCLR 1109
(CC) para 24;
Mkontwana
v Nelson Mandela Metropolitan Municipality and Another
CCT 57/03;
Bissett
and Others v Buffalo City Municipality and Others
CCT 61/03;
Transfer
Rights Action Campaign and Others v Member of the Executive Council for Local Government
and Housing in the Province of
Gauteng and Others
CCT 1/04
(Kwazulu-Natal
Law Society and Msunduzi Municipality Intervening)
, 6 October 2004, as yet
unreported, para 27.
[55]
Section 14(e)(ii).
[56]
Mohamed and Another v President of the Republic of South Africa
and Others (Society for the Abolition of the Death Penalty in South
Africa and
Another Intervening)
2001 (3) SA 893 (CC); 2001 (7) BCLR 685 (CC).
[57]
Id para 42.
[58]
Sub-article 3 of Article 4.
[59]
Section 9(3).
[60]
Section 9(3)(a)(ii).
[61]
The original documents as authenticated were not in the possession
of this Court on the date of the hearing of the matter.  Some
days after the
hearing, the registrar was requested to secure these documents with the
assistance of the applicant.  This was
done and we are grateful for the
assistance received.