President of the Republic of South Africa and Others v Quagliani, President of the Republic of South Africa and Others v Van Rooyen and Another; Goodwin v Director-General, Department of Justice and Constitutional Development and Others (CCT24/08, CCT52/08) [2009] ZACC 1; 2009 (4) BCLR 345 (CC); 2009 (2) SA 466 (CC) (21 January 2009)

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[2009] ZACC 1
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President of the Republic of South Africa and Others v Quagliani, President of the Republic of South Africa and Others v Van Rooyen and Another; Goodwin v Director-General, Department of Justice and Constitutional Development and Others (CCT24/08, CCT52/08) [2009] ZACC 1; 2009 (4) BCLR 345 (CC); 2009 (2) SA 466 (CC) (21 January 2009)

Links to summary

CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 24/08
[2009] ZACC 1
PRESIDENT OF THE
REPUBLIC OF SOUTH AFRICA
First Applicant
MINISTER FOR JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
Second Applicant
DIRECTOR OF PUBLIC
PROSECUTIONS, PRETORIA HIGH COURT
Third Applicant
versus
NELLO QUAGLIANI
Respondent
and
PRESIDENT OF THE
REPUBLIC OF SOUTH AFRICA
First Applicant
MINISTER FOR JUSTICE
AND CONSTITUTIONAL DEVELOPMENT
Second Applicant
DIRECTOR OF PUBLIC
PROSECUTIONS, PRETORIA HIGH COURT
Third Applicant
versus
STEPHEN MARK VAN ROOYEN
First Respondent
LAURA VANESSA BROWN
Second Respondent
Case CCT 52/08
[2009] ZACC 1
STEVEN WILLIAM GOODWIN
Applicant
versus
DIRECTOR-GENERAL,
DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
First Respondent
MINISTER FOR JUSTICE
AND CONSTITUTIONAL DEVELOPMENT
Second Respondent
DIRECTOR OF PUBLIC
PROSECUTIONS, PRETORIA HIGH COURT
Third Respondent
PRESIDENT OF THE
REPUBLIC OF SOUTH AFRICA
Fourth Respondent
with
SPEAKER OF THE NATIONAL
ASSEMBLY
First Intervening Party
CHAIRPERSON OF THE
NATIONAL COUNCIL OF PROVINCES
Second Intervening
Party
Heard
on : 26 August 2008
Decided
on : 21 January 2009
JUDGMENT
SACHS J:
Introduction
Extradition
“is the surrender by one state, at the request of another, of a
person within its jurisdiction who is accused
or has been convicted
of a crime committed within the jurisdiction of the other state.”
1
It involves three elements: acts of sovereignty on the part of two
states; a request by one state to another state for the
delivery to
it of an alleged criminal; and the delivery of the person requested
for the purposes of trial and sentencing in
the territory of the
requesting state.
2
Extradition law thus straddles the divide between state
sovereignty and comity between states and functions at the
intersection
of domestic law and international law.
It
is within this context that the applications before this Court
raise questions about the prerequisites under our Constitution
for
making extradition treaties binding on South Africa in
international law, and for rendering their provisions enforceable

in our domestic law. More specifically, the applications concern
the validity and enforceability of the Extradition Agreement
(the
Agreement) between the United States of America (the United States)
and the Republic of South Africa (South Africa).
Two
of the three applications were brought in the High Court by persons
facing extradition from South Africa to the United States.
The
third was brought by a person whom South Africa is seeking to
extradite from the United States. For convenience I will
refer to
all the persons facing extradition as the applicants, and to the
respondents in the High Court, namely, the President
of the
Republic of South Africa (the President), the Minister for Justice
and Constitutional Development (the Minister), the
Director of
Public Prosecutions and the Director-General of the Department of
Justice and Constitutional Development, as the
government. All the
applicants contended that the Agreement between South Africa and
the United States had not been validly
entered into,
3
or alternatively, that if the Agreement was indeed valid at the
international level, it had not been properly enacted into
our law.
The
first two applications, by Mr Quagliani and by Mr van Rooyen and Ms
Brown, a married couple, respectively, were heard together
by
agreement in the Pretoria High Court.
4
They succeeded on the alternative ground mentioned above, namely,
that the Agreement was not enforceable under South African
domestic
law because it was not self-executing and had not been enacted into
legislation. The High Court made a declaration
that the Agreement
had not been enacted into the domestic law of South Africa
5
and that it was accordingly not in force.
6
I will refer to the decision relating to both these applications
as the
Quagliani
decision. The government has applied to
this Court for leave to appeal against this decision.
The
High Court did not give a ruling on two other contentions that had
been raised.
7
The first was that the Agreement had not been properly entered
into by the President, and although the High Court inclined

strongly to the view that the President had acted properly through
the national executive, it did not express a final conclusion
on
the matter. The second was that the resolutions approving the
Agreement had not been validly adopted by the National Assembly
and
the National Council of Provinces (NCOP).
8
This argument was not dealt with in the judgment, which simply
referred in passing to the existence of affidavits filed on
behalf
of these two bodies.
The
third application concerned a South African citizen, Mr Goodwin,
who, after allegedly absconding to the United States, was

provisionally arrested there at the request of the South African
government.
9
He sought his release in the United States on the ground that the
Agreement was not valid in South African law, but the Californian

court
10
dismissed his application, finding that as the challenge was based
on the South African Constitution, it should properly be
dealt with
by a South African court. An application was then made on his
behalf in the Pretoria High Court, which raised the
same three
arguments against the enforceability of the Agreement that had
previously been advanced by the other applicants
in the High Court.
Ebersohn J hearing the matter held that the earlier decision in
the same High Court had clearly been wrong,
and rejected the
argument based on the alleged failure to incorporate the Agreement
into South African domestic law. He also
dismissed the challenge
based on the alleged invalidity of the Agreement and did not make a
finding on the manner in which
the resolutions had been adopted in
Parliament.
11
Mr Goodwin now seeks leave to appeal against this decision, which
I will refer to as the
Goodwin
decision.
The
applications for leave to appeal against the
Quagliani
decision and against the
Goodwin
decision were set down for
hearing together in this Court. The Speaker of the National
Assembly and the Chairperson of the
NCOP were granted leave to
intervene in respect of the issue of whether the approval of the
resolution in the NCOP was validly
given.
Application
for leave to appeal directly to this Court
Leave
to appeal will be granted if a constitutional issue is raised and
if it is in the interests of justice to do so. These
applications
for leave to appeal call upon this Court to analyse the power given
by the Constitution to the national executive
to negotiate and sign
treaties, as well as the constitutional provisions regulating the
manner in which treaties will come
to have force of law
domestically. These are constitutional matters.
The
interests of justice also favour final determination of the issues
raised. The existence of conflicting judgments in the
Pretoria
High Court leaves the law in an unsatisfactory state.
12
For the one to be right, the other must be wrong: at least one of
the applications for leave to appeal must have prospects
of
success. Furthermore, as the government emphasised, it is not only
the status of the applicants that is at stake. There
are many
other extradition agreements that have been adopted in the same
manner as the one with the United States,
13
and problems regarding their enforceability could affect South
Africa’s relations with other countries involved.
A
more difficult question is whether the interests of justice call
for a direct appeal to this Court. At the hearing all the
parties
supported direct appeal to this Court. The government pointed out
that there had been considerable delay in finalising
the two
matters in the High Court, the first of which dated back to 2004;
the matters were of high public importance and if
they were not
resolved with a degree of urgency, the ends of justice and good
government would be prejudiced; there was a pressing
need for a
definite and final decision on controversial questions on
extradition which had sprung up throughout the country;
and South
Africa’s international obligations were involved. The government
added that, in dealing with these matters, this
Court would have
the benefit of two judgments of the High Court.
In
my view, the interests of justice favour the matters being
determined by this Court now. They raise important questions
of a
purely constitutional nature, the resolution of which is urgently
needed to facilitate extradition proceedings. All the
issues were
fully argued before us. Leave to appeal should accordingly be
granted.
Issues
before this Court
The
parties were directed by the Chief Justice to present argument on
whether—
the delegation by the President of his powers contained in section
2 of the Extradition Act (the Act)
14
was lawful;
the Agreement was validly approved in terms of section 231(2) of
the Constitution;
15
and
the Agreement had been incorporated into South African law in terms
of section 231(4) of the Constitution.
16
During
argument the following three issues crystallised:
Was the Agreement with the United States validly negotiated and
entered into (the “validity of the Agreement issue”)?
Was the Agreement validly approved in the NCOP (the “mandates
issue”)?
Were the provisions of the Agreement enforceable in our law (the
“enforceability issue”)?
I
shall deal with each in turn.
The
validity of the Agreement issue
The
applicants submitted that the Agreement with the United States had
not been validly entered into because the President had
delegated
his own responsibilities in this regard to members of his Cabinet.
The
uncontested facts follow. Preparatory negotiations between
representatives of South Africa and the United States began
in May
1998. Further discussions held in April 1999 led to two agreements
being finalised, the Agreement and the Mutual Legal
Assistance in
Criminal Matters Treaty. At a later stage a memorandum was sent to
the President from the Minister, expressing
his intention to
“submit a Presidential Minute in which [he] would seek approval
from [the President] to sign the Treaties
on behalf of the
Government of the Republic of South Africa.” Drafts of the
agreements were submitted to the state law advisers
to determine if
the contents were in accordance with South African law and
international law. Compliance was reported.
The
Minister then informed the President by memorandum that he would be
visiting the United States in September 1999, during
which time he
would meet the Attorney General of the United States, and stated
that “it would be appropriate if the treaties
could be signed”
during this meeting. On 10 September 1999 the President signed
Presidential Minute No. 428, stating:
“
In terms of section 231 of
The Constitution of the Republic of South Africa, 1996 [the
Constitution], I hereby approve that the
attached Extradition and
Mutual Legal Assistance in Criminal Matters Treaties between the
Government of the Republic of South
Africa and the Government of the
United States of America be entered into, and I hereby authorise the
Minister of Justice to
sign the Treaties and take the necessary
steps in this regard.”
Later
that month, the Agreement was signed by the Minister in Washington,
D.C.
In
March 2000 the Director-General of the Department of Justice and
Constitutional Development requested the Minister to seek

ratification of the Agreement from Parliament. The relevant
documents and an explanatory memorandum were then submitted to

Parliament. In accordance with parliamentary procedure, the
Agreement and accompanying documents were considered by the

Portfolio Committee on Justice and Constitutional Development,
which recommended that the National Assembly approve and ratify
the
Agreement.
On
2 November 2000, the NCOP approved by resolution the Agreement,
which was tabled as a motion, and on the next day the National

Assembly did the same. The Acting Minister of Foreign Affairs
signed the instruments of ratification (referred to as the
“Protocols” by the United States) in Cape Town.
17
The Public Affairs Office of the United States Embassy issued a
Media Advisory
18
which stated: “United States Embassy Charge d’Affaires John
Blaney and Minister of Justice Penuell Maduna will sign the

protocols bringing into force the Mutual Legal Assistance Treaty
(MLAT) and a new Extradition Treaty”. On 25 June 2001 the
formal
exchange of instruments of ratification between the United States
and South Africa took place at the Union Buildings
in Pretoria.
And finally, on 29 June 2001, the Minister published in the
Government Gazette the notice required by section
2(3)
ter
of
the Act.
19
It attached the text of the Agreement. It also stated that
Parliament had on 3 November 2000 “agreed to the ratification”

of the Agreement, and that the exchange of the instruments of
ratification to bring it into force had taken place on 25 June

2001.
With
these facts in mind I turn to the validity of the Agreement issue.
The Act
20
gives the President, in terms, the power to enter into extradition
agreements. Section 2(1)(a) states:
“
The President may, on such
conditions as he or she may deem fit, but subject to the provisions
of this Act concerning extradition—
(a) enter into an agreement
with any foreign State”.
This
provision has to be understood in the context of the Constitution
which provides in section 231(1) that:
“
The negotiating and signing
of all international agreements is the responsibility of the
national executive.”
The
validity of the Agreement issue requires the determination of the
relationship between these two provisions.
It
was argued on behalf of the applicants that when the President
assigned the power to enter into the Agreement to the Minister,

along with the power to “take the necessary steps in this
regard”, he effectively gave him the power and responsibility
to
bring the Agreement into force. The result, it was submitted, was
that it was the Minister, and he alone, who was unlawfully
given
the power to perform all the steps needed to bring the Agreement
into force. This, coupled with the fact that the instruments
of
ratification were signed by the Acting Minister of Foreign Affairs,
was said to have constituted a legally impermissible
abdication by
the President of his statutory duty to “enter into” extradition
agreements. Counsel placed considerable
reliance on the words used
in the Extradition Act: “enter into an agreement”.
Counsel
for the government submitted in response that the national
executive had a constitutional responsibility to be involved
in the
negotiating and signing of international agreements. In addition,
the Minister of Foreign Affairs was expressly given
“full powers”
to bind a state in international agreements under the Vienna
Convention on the Law of Treaties.
21
The Presidential Minute in question showed two things: first, that
the President had taken the decision to enter into the
Agreement in
terms of the Constitution; and second, that he had conferred on the
Minister the power to sign on behalf of the
government. Counsel
added that the signature by the Minister of Foreign Affairs on the
instruments of ratification only represented
execution of a
decision already taken by the President. In reality, the argument
concluded, the actions complained of were
merely formal, giving
effect to a decision that had been taken by the President on the
advice of, and in consultation with,
the Minister.
The
capacity in which the President acted
In
my view, the authority given by the Act to the President to enter
into agreements has to be interpreted in the light of the
specific
power which section 231 of the Constitution gives to the national
executive to negotiate and sign treaties. The President
is the
Head of State and the head of the national executive.
22
As Head of State the President is directly responsible for a range
of matters such as: assenting to and signing Bills; appointing

commissions of inquiry; receiving diplomats; appointing
ambassadors; pardoning offenders; and conferring honours.
23
As this Court pointed out in
SARFU II
,
24
when acting as Head of State, it may be desirable for the President
not to act on his or her own, but to consult with and take
the
advice of ministers. What was important was that the President
should take the final decision.
When,
as in the present matter, the President is exercising authority as
head of the national executive under section 85 of
the
Constitution, the President is obliged to act in a collaborative
manner.
25
Section 85(2)(e) provides:
“
The President exercises the
executive authority, together with the other members of the Cabinet,
by—
(e) performing any other
executive function provided for in the Constitution or in national
legislation.”
The
need for collective exercise of executive power in relation to
treaties is reflected in the manner in which the Constitution

expressly confers treaty-making power on the national executive.
It
should be remembered that the Act was last amended at a time when
the interim Constitution was in force. Under section 82(1)
of that
Constitution, the negotiating and signing of international
agreements was designated as an exclusive executive function
of the
President. When the Act was amended in 1996,
26
before the 1996 Constitution came into force, the drafters would
have been aware of this provision. The power to enter into

extradition agreements in the pre-constitutional era had been that
of the State President, so it was not necessary for the
Act to be
amended substantively in that regard. As mentioned above, sections
231(1) and 85(2) of the 1996 Constitution removed
the treaty-making
power from the exclusive domain of the President and placed it
expressly within the responsibility of the
national executive
authority functioning as a collective unit. The result was that
when the 1996 Constitution came into force,
what changed was not
the responsibility entrusted to the President under section 2 of
the Act, but the collective manner in
which the President is now
required to exercise this responsibility.
It
is accordingly impossible to read the Act as requiring the
President personally to prepare the documents, to see the details

through at each stage, and eventually to sign the final text. On
the contrary, what the Act and the Constitution require is
that, as
head of the national executive and functioning in conjunction with
the national executive, the President make a final
decision in
writing to enter into an extradition agreement.
The
power conferred upon the President in section 2 of the Act must now
be read with section 231 of the Constitution which provides
that
the national executive bears the constitutional responsibility to
negotiate and sign treaties.
When the
President decides to enter into an extradition agreement in terms
of section 2 of the Act, he does so as head of the
national
executive. Given the provisions of section 231 of the
Constitution, it is not improper for the President, once the

decision to enter into the treaty has been made by the President,
to confer other formal aspects relating to the accession
to the
treaty on other members of the national executive. It is important
that these provisions should not be applied in a
formalistic manner
that will impair the ability of the national executive to function.
The facts that I have set out above
make it plain that the
President did decide that the Agreement should be entered into in
terms of section 231 of the Constitution
as Presidential Minute No.
428 expressly states. The fact that in the same minute the
President empowered the Minister (who
is a member of the national
executive) to sign the Agreement and take the necessary steps to
ensure that the Agreement was
formally concluded is entirely
consistent with the power conferred upon the national executive by
section 231 of the Constitution.
Similarly, the fact that the
Acting Minister of Foreign Affairs signed the instruments of
ratification is also consistent
with the conferral of the power
upon the executive.
I
conclude therefore that the Agreement between South Africa and the
United States was validly entered into.
The
mandates issue
Section
231(2) of the Constitution provides that—
“
An international agreement
binds the Republic only after it has been approved by resolution in
both the National Assembly and
the National Council of Provinces”.
It
was submitted by the applicants that the provincial delegates who
voted to approve the Agreement in the NCOP did so without
the
mandates of their provincial legislatures. The result, they
claimed, was that the approval of the Agreement was invalid,
and
the Agreement was therefore not binding on the Republic.
Three
interrelated preliminary questions arise. The first is whether it
is appropriate for the applicants to raise the issue
of lack of
mandates without joining parties that would have a direct interest
in the matter. In the present case these would
be the appropriate
representatives of the provinces, who, if called upon, would be the
persons best qualified to inform the
Court how mandates were or
should have been given in each case.
A
bsent
special circumstances, this non-joinder in itself would be fatal to
the applicants’ claim in this area.
Equally
serious is the extraordinary delay in raising the mandates
question, which must constitute a further impediment to the
Court
being seized of the matter.
One
of the issues in
Doctors
for Life
27
was whether a challenge could be made by applicants who had not
made diligent and timeous attempts to bring a legal challenge
to
procedural failures by the legislature. In that matter the
question was whether the NCOP had failed in its duty to facilitate

public involvement under section 72 of the Constitution. That
matter was not one of standing to assert a violation of rights

under the Bill of Rights. Ngcobo J observed that applicants who
have not pursued their legal course timeously may well be
denied
relief
28
,
and added that:
“
Rules of standing of this
sort will prevent legislation being challenged on the ground of
non-compliance . . . many years after
the event by those who had no
interest in making representations to Parliament at the time the
legislation was enacted. It will
thus discourage opportunist
reliance by those who cannot show any interest in the duty to
facilitate public involvement on that
duty . . . . [T]his
restricted form of standing further reflects this Court’s concern
to protect the institutional integrity
of Parliament, while at the
same time seeking to ensure that the duty to facilitate public
involvement is given adequate protection.”
29
Thus,
save in very exceptional circumstances, late challenges to the
validity of legislative processes should not be permitted.

Legislatures should be allowed a margin of appreciation in deciding
on and implementing their procedures,
30
provided the basic prescriptions of the Constitution are adhered
to. In addition, there is a strong need for procedural finality,

which should not be confused with the ever-present right to
challenge the constitutional consistency of the resultant law.
This
brings me to the third preliminary hurdle standing in the way of
the mandates matter being determined by this Court. Unless
there
is evidence of procedural irregularities in the legislative
process, it would not ordinarily be appropriate for a court
to
interrogate the procedures used.
31
Thus, if there is merely a bald allegation of irregularity without
more, a court is ordinarily restrained by considerations
of
separation of powers and good government from interrogating the
legislative process. The regular functioning of government
would
be unduly disrupted if courts could be called upon (on a purely
speculative basis) to enquire at any stage into the regularity
of
completed legislative processes. Absent evidence to the contrary,
a strong presumption must accordingly exist that the
legislature
followed constitutionally-mandated procedures in performing its
functions. In the present case there is no evidence
properly
placed before this Court of any irregularity, a further bar to the
applicants’ argument.
Each
of these preliminary factors on its own could have justified
barring the applicants from pursuing the issue of there being
a
lack of mandates. The cumulative weight is fatal to the applicants
in respect of the question of the mandates. The argument
that the
resolution was not validly adopted because the delegates were not
properly mandated must therefore be rejected.
The
enforceability of the Agreement in South African domestic law
It
is common cause that the Agreement has not been formally enacted as
an Act of Parliament. The applicants argued that it
is accordingly
not law in the Republic, with the consequence that extradition to
and from the United States could not be undertaken.
Their argument
was based on sections 231(2) and 231(4) of the Constitution. These
sections provide:
“
(2) An international
agreement binds the Republic only after it has been approved by
resolution in both the National Assembly
and the National Council of
Provinces, unless it is an agreement referred to in subsection (3).
. . . .
(4) Any international agreement
becomes law in the Republic when it is enacted into law by national
legislation;
but a self-executing provision of an agreement
that has been approved by Parliament is law in the Republic unless
it is inconsistent
with the Constitution or an Act of Parliament.”
The
applicants contended that the Agreement had not become law in the
Republic because it had not been enacted into national
legislation,
that its provisions were not self-executing, and that its
provisions were also not consistent with the Act. The
applicants
accordingly submitted that their arrest and subsequent detention in
terms of the Agreement had been unlawful because
the Agreement had
not been enforceable as part of law in the Republic.
Their
arguments in favour of non-enforceability were based on five
interrelated propositions:
It is necessary to ensure that freedom rights of the individual are
protected in our constitutional democracy;
because liberty was affected, the onus was on the government to
establish that the Agreement was enforceable as part of South

African law;
there is a strong presumption that treaties on their own do not
become part of domestic law unless expressly incorporated through

legislation;
the very term ‘self-executing’ requires that the provisions in
question be capable of enforcement on their own without
further
legislative action; and
even if the provisions of the Agreement were to be regarded as
self-executing, they were inconsistent with the Act and therefore

unenforceable.
In
my view, the starting point for the analysis must be the
relationship between the Act and section 231(4) of the
Constitution.
As its name indicates, the Act deals with
extradition, a species of law with its own special qualities. By
its very nature
extradition has both a domestic law and an
international law dimension. And although the two operate in
different legal spheres,
they are inextricably linked ─ you
cannot extradite someone in your own country to your own country.
The entering into of
agreements with other countries on the basis
of reciprocity therefore lies at the very heart of extradition law.
In
keeping with this, the Act expressly anticipates that treaties
would be made with other countries, and, as I set out more
fully
below, provides the framework for giving domestic effect to the
content of those treaties. For reasons which will become
apparent,
I have concluded that it is unnecessary to consider the question
whether the Agreement should be regarded as self-executing.
My
reasons for coming to the above conclusion are set out below. They
are based on an examination of the manner in which the
intrinsic
character and purposes of extradition are reflected in the
operative provisions of the Act.
Purposes
of extradition
Historically
extradition law “was designed to make systems of reciprocal
surrender orderly and principled, and to make abduction,
military
incursions, and fraudulent deportations unnecessary and illegal.”
32
In many jurisdictions it has provided a judicially protected
guarantee of freedom and fairness for individuals. It would
be
unduly limited to see extradition as an aspect of international
relations in which ordinarily only states have an interest.
An
overly state-oriented approach may ignore the rights of individuals
to freedom and fairness in the extradition process.
And, as will
be seen, in keeping with these principles, the Act contains
provisions aimed at protecting the rights of individuals
guaranteed
in the Constitution.
Yet,
important though individual rights are, extradition proceedings
cannot be looked at purely from the point of view of protecting

individuals facing extradition. Transnational mobility of people,
goods and services, as well as new technological means,
have
contributed to increased mobility of criminals.
33
La Forest states that—
“
[the extradition process]
strengthens the law enforcement agencies within the state requesting
the surrender by reducing the possibility
of its criminals escaping.
And it is to the advantage of the state to which a criminal has
escaped, for no country desires to
become a haven for malefactors.”
34
The
Act furthers the criminal justice objectives of ensuring that
people accused of crime are brought to trial and that those
who
have been convicted are duly punished. The need for effective
extradition procedures becomes particularly acute as the
mobility
of those accused or convicted of national crimes increases.
Indeed, one of the purposes of the Act in these circumstances
is to
reduce the temptation of law enforcement agencies to establish
informal and unfair procedures for rendition.
35
However, even if abuses need to be prevented, inherent in any
extradition arrangement is the potential for reciprocity.
36
In my view, it is this core element of extradition that explains
why and how the Act served as a mechanism through which the

Agreement can be enforced.
The
Extradition Act
Section
2(1)(a) of the Act provides that the President may, subject to the
provisions of the Act, enter into agreements with
foreign states to
provide “for the surrender on a reciprocal basis of persons
accused or convicted” of the commission of
extraditable offences.
Section 2(3)(a) of the Act then provides that any such agreement
will be of no force until agreed to
by Parliament. I have already
held that the Agreement was formally entered into by the President
and the national executive.
Later it was agreed to by Parliament.
In the circumstances, the corollary of section 2(3)(a) must be that
from that moment
on the Agreement had appropriate force and effect
as a binding obligation of international law.
The
remaining provisions of the Act then provide a comprehensive
process, amongst other things, to give effect to the provisions
of
extradition agreements. So, for example, section 3(1) of the Act
provides that a person accused or convicted of an offence
included
in an extradition agreement is liable to be surrendered to the
foreign state in accordance with the extradition agreement.
The
Act continues by providing for warrants of arrest to be issued by
magistrates upon receipt of a notification by the Minister
that a
request for the surrender of a person has been received by the
Minister.
37
It also provides for the holding of an enquiry by a magistrate to
determine whether the person is liable to be surrendered
to the
foreign state.
38
Finally, section 11 of the Act regulates the power of the Minister
to order the surrender of the person.
The
Act, read with other legislation such as the Criminal Procedure
Act, thus gives the executive branch all the required statutory

powers to be able to respond to a request for extradition from a
foreign state and for the executive branch to be able to request

the extradition of individuals who are in foreign states. It
should be added that although the power to request extradition
to
the Republic from a foreign country is not expressly provided for
in the Act, it is necessarily implicit in sections 19
and 20. Both
deal with requests for surrender, and indeed, section 19 expressly
envisages extradition being requested in terms
of an extradition
treaty.
39
The
Act, then, deals with a specific class of international agreements,
namely, extradition agreements. It provides that all
these
agreements will be implemented in accordance with its provisions.
Given the nature of these agreements and the fact
that there will
be many which would be entered into with different countries, it is
desirable that there should be a single
piece of legislation which
deals with all of them and provides for their effective
implementation. Were it to be otherwise,
it would mean that each
time an extradition agreement was entered into, it would be
necessary to enact additional legislation
which, in all
probability, would be identical to all the other implementing
legislation.
It
is clear that if the procedure stipulated in sections 2 and 3 of
the Act, as well as section 231(1) and (2) of the Constitution
is
followed, an extradition agreement creates a binding international
law obligation on South Africa. The question then is
whether the
Agreement “becomes law” in South Africa as contemplated by
section 231(4) of the Constitution. There are two
ways in which
this question can be answered. The first is to say that the
Agreement itself does not become binding in domestic
law, but the
international obligation the Agreement encapsulates is given effect
to by the provisions of the Act. The second
approach is that once
the Agreement has been entered into as specified in sections 2 and
3 of the Act, it becomes law in South
Africa as contemplated by
section 231(4) of the Constitution without further legislation by
Parliament.
It
is not necessary for the purposes of this case to decide which of
these approaches is correct, for their effect in this case
is the
same. Either the Agreement has “become law” in South Africa as
a result of the prior existence of the Act which
constitutes the
anticipatory enactment of the Agreement for the purposes of section
231(4) of the Constitution. Or the Agreement
has not “become
law” in the Republic as contemplated by section 231(4) but the
provisions of the Act are all that is required
to give domestic
effect to the international obligation that the Agreement creates.
I
conclude, therefore, that on either of the approaches identified
above, no further enactment by Parliament is required to
make
extradition between South Africa and the United States permissible
in South African law.
The
last question that needs to be considered is whether the provisions
of the Agreement are consistent with the Act.
Are
the provisions of the Extradition Agreement in conflict with the
Extradition Act?
On
either of the approaches mentioned above, it is not necessary to
decide the question whether there is a conflict between
the
provisions of the Act and the provisions of the Agreement as I
shall explain. If the first approach mentioned above is
correct –
that is that the provisions of the Act do not become law
domestically but merely give rise to an international
law
obligation to which effect is given by the provisions of the Act –
then this question does not arise. For on this approach,
if there
is an inconsistency between the Act and the Agreement then clearly
the provisions of the Act
will be the
legally operative provisions in our domestic law. If the result of
such inconsistency is that South Africa cannot
give full effect to
its international obligations, then that is a matter that will have
to be resolved in the international
sphere, not domestically.
If
the second approach is correct – that is that the provisions of
the Agreement do become law, because they have been deemed
to have
been enacted by the anticipatory provisions of the Act – it is
clear that they can only have become law to the extent
that they
are consistent with the Act. In the case of a conflict between a
provision of the Agreement and a provision of the
Act (or the
Constitution), therefore, the conflicting provision of the
Agreement will not have become law as contemplated by
section
231(4).
As
the case raised here is not based on any specific example of
alleged conflict affecting the potential extradition of the

applicants, it is not necessary for us to decide in this case
whether there is a conflict between the Agreement and the Act,
even
on the assumption that the Agreement has become law. This is
because if there is such a conflict, the provisions of the
Act will
clearly override the conflicting provisions in the Agreement.
The
result is that whichever of the two approaches is adopted in
relation to the legal status
of the
Agreement in our law, its provisions cannot override the provisions
of the Act. If there is repugnancy, the terms of
the Act will
prevail. Only a duly enacted amendment to the Act, which would
have to be consistent with the Constitution, could
permit the
repugnancy to be resolved in favour of the Agreement.
Conclusion
In
the result, the three challenges to the validity and enforceability
of the Agreement between South Africa and the United
States fail.
The appeal by the government in the
Quagliani
matter succeeds.
To
the extent that Mr Goodwin’s appeal is based on similar
challenges, it also cannot succeed. Mr Goodwin contended further

that the Act gave no power to anybody within this country to
request an extradition of someone who is in the United States.
The
answer is that the Act by implication does confer authority to make
the request by reason of the provisions concerning
reciprocity, as
well as sections 19 and 20.
40
Mr Goodwin’s appeal accordingly fails.
Costs
In
its written submissions the government did not ask for costs if its
appeal succeeded in the
Quagliani
case. It did, however, ask for costs if Mr Goodwin’s appeal
failed.
The
cases were almost identical. As has already been mentioned, the
issues were of considerable public importance, and the
state was
eager to have a comprehensive judgment that would pre-empt
piecemeal applications in the future. Complex constitutional

questions had to be dealt with concerning the nature of the
President’s powers, as well as the manner in which treaty

obligations become part of domestic law. In the circumstances it
would not be in the interests of justice for the applicants
in
either case to be ordered to pay costs.
41
Late application for postponement of the judgment
It
is necessary to deal with an extraordinary application that was
made at the last minute for delivery of the judgment to be

postponed. At midday on
Wednesday 10 December 2008, notice
had been given to the parties informing them that judgment in this
matter would be delivered at 10:00am the next day, which was
during the Court’s recess. At the appointed time, Skweyiya J

announced that for technical reasons delivery of the judgment would
be postponed to Wednesday 17 December 2008.
It
so happened that during the morning of Thursday 11 December 2008,
an application was lodged in a similar matter for the joinder
of
the Speakers of the various provincial legislatures (the Speakers).
The applicant was Mr Stratton, who is seeking to resist

extradition from Australia to South Africa. He brought the joinder
application in support of an earlier application by him
for direct
access to this Court. The earlier application had been postponed
by this Court until judgment in the present matter
had been
delivered.
42
Mr
Stratton claimed in his new application that the adoption by the
NCOP of the resolution bringing the South Africa/Australia

Extradition Treaty into force was invalid because the heads of the
provincial delegations who had voted to approve the Treaty
had not
been properly mandated by their respective provincial legislatures
to do so.
Mr
Stratton’s attorney said he attended the oral proceedings in the
present matter. One of the issues raised in debate with
counsel
was the failure to join the Speakers. After advising Mr Stratton
of what he had heard in Court, he was instructed
to address letters
to the Speakers, requesting them to provide him with a copy of any
written mandate given to the heads of
the delegations who voted,
and if no written mandate was given, to indicate on what date any
oral mandate was given, by whom
it was given, to whom it was given
and what the mandate was. The Speakers were also requested to
indicate in writing if no
mandates were given.
The
affidavit added that only four of the Speakers of the nine
provinces had replied. The Speaker of the Mpumalanga Provincial

Legislature and the Speaker of the Western Cape Provincial
Parliament had indicated that no mandate, whether written or oral,

had been conferred on the delegation. The Speaker of the North
West Provincial Legislature had stated that such information
had no
bearing on Mr Stratton’s rights or his legal representatives’
interest in protecting or pursuing those rights.
The Speaker of
the Free State Legislature had denied receipt of the court
documents in respect of Mr Stratton’s application
for direct
access.
Mr
Stratton sought to join the Speakers at this stage. This he said
was to ensure that the mandates issue would be fully and
properly
considered, thereby preventing an unnecessary application from
having to be brought at a later stage to challenge
the validity of
the South Africa/Australia Extradition Treaty.
On
Wednesday 17 December 2008, shortly before judgment in the present
matter was to be delivered, Mr Quagliani lodged a similar

application for the joinder of the Speakers. He submitted that Mr
Stratton’s matter was in many respects identical to his,
albeit
the South Africa/Australia Extradition Treaty was different.
Further that his matter should not be determined before
the
question of mandates had been fully explored in Mr Stratton’s
matter.
Ngcobo
J and Skweyiya J, in their capacity as recess duty Judges, decided
that delivery of this
judgment should be postponed to
Wednesday 21 January 2009. This would afford the full Court an
opportunity to consider the
applications. Directions were issued
in terms of which Mr Quagliani was to lodge a formal application
for postponement of
the delivery of the judgment pending the
finalisation of the application for joinder, no later than Monday 5
January 2009.
Parties were informed that they could respond no
later than Tuesday 13 January 2009. The costs of the postponement
were reserved.
Pursuant
to these directions, Mr Quagliani lodged a formal application for
the postponement of the judgment in this matter on
Monday 5
January 2009. He also sought leave to adduce new facts in
the appeal. He stated that he was bringing a joinder application

on the strength of Mr Stratton's application, which had revealed
that at least two provinces had not conferred mandates on their

delegations to vote either in favour of or against the South
Africa/Australia Extradition Treaty.
Mr
van Rooyen, cited as sixth respondent in the application for the
postponement of delivery of the judgment, lodged an affidavit
in
which he supported the application for postponement, stating that,
in terms of
Doctors for Life
,
43
the Court can re-open the matter if fairness and justice require.
44
On
Tuesday 13 January 2009 the State Law Advisor (acting on behalf of
the President, the Minister and the Director of Public

Prosecutions, Pretoria High Court) responded, vehemently opposing
the postponement applications. He stressed that the extradition

not only of the applicants, but also of other fugitives from the
law, has been delayed for years now.
The
Chairperson of the NCOP also entered the fray and vigorously
opposed the application for postponement.
To
say that the application for postponement of delivery of this
judgment is remarkable would be a gross understatement. New

evidence on appeal is only admitted in very rare circumstances. In
Metrorail
45
this Court emphasised that for such evidence to be admitted a
reasonably sufficient explanation for the failure to tender the
evidence earlier in the proceedings had to be offered, finality was
important, and that evidence tendered had to be weighty
and
material. Admitting new evidence on appeal would thus be done
sparingly and only in exceptional circumstances.
46
The admission of new evidence during an appeal hearing is likely
to be permitted even more rarely, as the litigant will need
to show
why the evidence was not tendered earlier. This application has
been lodged long after the appeal hearing, and just
before judgment
was to be delivered. Only the most exceptional circumstances could
justify the admission of the supplementary
material sought to be
tendered here. Such circumstances simply do not exist.
No
explanation at all is given for the delay. Moreover, the evidence
sought to be admitted by Mr Stratton is hearsay in the
present
proceedings. It has no direct bearing on the validity of the
Agreement, and falls far short of carrying decisive weight
on
issues in the present matter. In addition, the need for finality
is particularly strong. The proceedings have dragged
on for years.
The status of the Agreement in the present matter, as well as the
status of similar agreements, must be clarified
as soon as
possible. The freezing of extraditions to and from many countries
has been harmful to law enforcement and has had
a negative effect
on South Africa’s international relations.
It
should also be stressed that no question of fundamental rights has
been placed in issue. The applicant’s basic rights
to fair
treatment continue to be protected by the Act and the Constitution.
Nor is there any suggestion of there having been
legislative foul
play. Indeed the Agreement was manifestly in the public interest
and was approved of unanimously. And far
from providing a lifeline
for the applications,
Doctors for Life
expressly excludes
any opportunistic reliance on alleged defects in long past
legislative proceedings, a matter that has been
dealt with above.
47
In
these circumstances, the application for the postponement of the
delivery of judgment as it was about to be handed down,
can only be
described as inappropriate. Legal representatives are entitled,
even obliged, to defend the interests of their
clients with vigour
and panache. Yet there must be limits to their ingenuity.
Stretching the bounds of appropriate forensic
procedure beyond
breaking point is not permissible. The delays and inconvenience
that have been caused in this matter are
unacceptable. In
Metrorail
O’Regan J pointed out that—
“
it has become a regrettable
practice in this Court that affidavits are tendered on appeal often
only days before an appeal hearing,
if not on the day of the appeal
itself. This is an unacceptable practice which must be discouraged.
The late filing of affidavits
in circumstances which do not meet
the stringent test for admission set out in this judgment will not
be permitted by this Court.
Attorneys should take care to consider
the test for the admission of late affidavits and satisfy themselves
before filing the
affidavits that they do qualify for admission in
terms of the rules of this Court and the principles elucidated in
this judgment.”
48
The application for the postponement of the delivery of the
judgment and for the joinder of the Speakers of the provincial

legislatures must accordingly be dismissed. The question of the
wasted costs of 17 December 2008 and the costs occasioned
by the
application for a postponement of the delivery of judgment dated 5
January 2009 are reserved. The parties, if they
so wish, may lodge
affidavits with this Court by no later than 9 February 2009, on the
question of what order, if any, this
Court should make concerning
the reserved question of wasted costs occasioned by the
postponement of 17 December 2008 and the
costs of the application,
including the question whether a punitive costs order is
appropriate in the circumstances.
Order
I
make the following order:
1. In the matter of
President
of the Republic of South Africa and Others v Quagliani and Others,
CCT 24/08:
a) Leave
to appeal directly to this Court is granted.
b) The appeal succeeds.
c) The order of the Pretoria High Court, c
ase
number 28214/06, is set aside and replaced with the following
order:
“
The applications are dismissed.”
2. In the matter of
Goodwin
v Director-General of the Department of Justice and Constitutional
Development and Others,
CCT 52/08:
a) Leave to appeal directly to this Court is
granted.
b) The appeal against the decision of the
Pretoria High Court,
case number
21142/08, is refused.
3. The application for a postponement of the
delivery of this judgment dated 5 January 2009 is dismissed. Costs
of that application,
and the wasted costs of 17 December 2008, are
reserved.
4. Save for the reserved costs referred to in paragraph 3, no order
is made as to costs in either matter.
Langa
CJ, Moseneke DCJ, Madala J, Mokgoro J, Ngcobo J, O’Regan J, Van
der Westhuizen J and Yacoob J concur in the judgment
of Sachs J.
Counsel for Quagliani: Advocate D Melunsky and
Advocate M Du Plessis instructed by Errol Goss Attorneys.
Counsel for Van Rooyen and Brown: Advocate P Hodes SC and Advocate
A Katz instructed by Davout Wolhuter and Associates.
Counsel for the Intervening Parties: Advocate RT Williams SC and
Advocate K Pillay instructed by the State Attorney, Johannesburg.
Counsel for the Government: Advocate PJJ de Jager SC and Advocate
MD Mohlamonyane instructed by the State Attorney, Pretoria.
Counsel for Goodwin: Advocate H Epstein SC and Advocate A Katz
instructed by Wertheim Becker Inc.
1
La Forest
Extradition to and from Canada
3 ed (Canada Law
Book Inc, Ontario 1991) 15.
2
Mohamed and Another v President of the Republic of South Africa
and Others
[2001] ZACC 18
;
2001 (3) SA 893
(CC);
2001 (7) BCLR
685
(CC) at para 28.
3
The Agreement was signed on 16 September 1999 by representatives of
South Africa and the United States, and subsequently published
in GG
22430, 29 June 2001.
4
The first application was brought by Mr Quagliani, a dual South
African and Italian citizen. He is accused of conspiracy to
import
narcotics (specifically Methylenedioxymethamphetamine (MDMA)), which
he allegedly imported into the United States. He
was arrested in
South Africa without a warrant on 26 November 2003 at OR Tambo
International Airport in terms of section 40(1)(k)
of the Criminal
Procedure Act 51 of 1977 (the
Criminal Procedure Act) f
or purposes
of conducting an extradition hearing in terms of section 9 of the
Extradition Act 67 of 1962 (the Act), and subject
to the granting of
warrants for his arrest in terms of the Act. He was held in
detention from 26 November 2003 until 9 December
2003 on which date
he was granted bail.
The second application
was brought by Mr van Rooyen and Ms Brown, who are accused of
fraudulently misrepresenting the current
status of stem cell
research and operating a clinic in the United States advertising and
performing “stem cell transplants”
on sufferers of a
myotrophic
lateral sclerosis (ALS)
, multiple sclerosis and
other incurable diseases. It is alleged that the injections which
they administered had no chance of
curing or improving the medical
condition of the patients. Mr van Rooyen and Ms Brown were arrested
on 10 June 2006 at OR Tambo
International Airport (also purportedly
in terms of
section 40(1)(k)
of the
Criminal Procedure Act) after
being indicted in the United States District Court for the Northern
District of Georgia on 28 March 2006. They are currently
out on
bail.
All three arrests were
purportedly carried out pursuant to Article 13 of the Agreement
pending extradition to the United States.
Article 13 provides that
“in case of urgency, the Requesting State may, for the purpose of
extradition, request the provisional
arrest of the person sought
pending presentation of the documents in support of the extradition
request”.
5
In terms of section 231(4) of the Constitution, which I discuss
below at [33]-[38] and [42]-[49].
6
For the purposes of section 3 of the Act which I discuss below at
[42]-[49].
7
Preller J had initially referred the matter to
this Court for confirmation. However, when it was brought to his
attention by
counsel for the parties that a referral of this nature
was not necessary, he then rectified the order in that respect.
The rectified order of 6 March 2008
reads as follows:
“
1. It is declared that the extradition agreement
signed on 16 September 1999 between the Republic of South Africa and
the United
States of America published in Government Gazette 22430
on 29 June 2001, has not been incorporated into the law of South
Africa
as a result of the fact that the requirements of section
231(4) of the Constitution has not been satisfied and the treaty is

accordingly not in force for purposes of section 1 of the
Extradition Act 67 of 1962.
2. The
first,
second, sixth and seventh Respondents in case 959/2004 (first,
second, seventh and eighth Respondents in case number 28214/2006)

are to pay the costs of the applications, which costs will include
the costs of two Counsel in both cases.”
8
The challenge based on the allegation that the National Assembly had
not been quorate during the proceedings of approval of the
Agreement
was not pursued in this Court.
9
Mr Goodwin is accused of various counts of fraud and theft running
into hundreds of millions of Rands relating to the demise
of
Fidentia Asset Management (Pty) Ltd, a South African company. Mr
Goodwin was taken into custody in Los Angeles on 5 April
2008, and
remains incarcerated.
10
United States District Court for the
Central
District of California.
11
Goodwin, Steven William and The Director-General, Department of
Justice and Constitutional Development and Others
Case No.
21142/08, Pretoria High Court, 23 June 2008, unreported at paras
30-4.
12
Above [3]-[6].
13
The following information is available at http://www.dfa.gov.za,
accessed on 20 December 2008. It is taken from two lists.
The list
“Bilateral Treaties signed by South Africa since 1 January 1994”
(http://www.dfa.gov.za/foreign/bilateral10522.rtf,
accessed on 20
December 2008) includes extradition agreements signed with:
Algeria 2001
Argentina 2007
Australia 1998,
entry into force 2001
Canada 1999,
entry into force 2001
China 2001,
entry into force 2004
Egypt 2001,
entry into force 2003
India 2003
Iran 2004
Lesotho 2001
Nigeria 2002
The list “Multilateral
Treaties and Conventions entered into until 30 April 2008”
(http://www.dfa.gov.za/foreign/multilateral0522.rtf,
accessed on 20
December 2008) includes extradition agreements signed with:
EU 1957,
entry into force 2003
SADC Protocol
on Extradition signed 2002, entry into force 2006.
14
Act 67 of 1962.
15
Section 231(2) of the Constitution states:
“
An
international agreement binds the Republic only after it has been
approved by resolution in both the National Assembly and
the
National Council of Provinces, unless it is an agreement referred to
in subsection (3).”
16
Section 231(4) of the Constitution states:
“
Any international agreement becomes law in the
Republic when it is enacted into law by national legislation; but a
self-executing
provision of an agreement that has been approved by
Parliament is law in the Republic unless it is inconsistent with the
Constitution
or an Act of Parliament.”
17
On 28 March 2001.
18
On 22 June 2001.
19
Above n 3.
20
Above n 14.
21
Article 7 of the Vienna Convention on the Law of Treaties, 1969
states:
“
1. A person is considered as representing a State
for the purpose of adopting or authenticating the text of a treaty
or for the
purpose of expressing the consent of the State to be
bound by a treaty if:
(a) he produces appropriate full powers; or
(b) it appears from the practice of the States
concerned or from other circumstances that their intention was to
consider that
person as representing the State for such purposes and
to dispense with full powers.
2. In virtue of their functions and without having to
produce full powers, the following are considered as representing
their
State:
(a) Heads of State, Heads of Government and Ministers
of Foreign Affairs, for the purpose of performing all acts relating
to the
conclusion of a treaty;
(b) heads of diplomatic missions, for the purpose of
adopting the text of a treaty between the accrediting State and the
State
to which they are accredited”.
22
See section 83(a) of the Constitution.
23
See section 84(2) of the Constitution.
24
President of the Republic of South Africa and Others v South
African Rugby Football Union and Others
[1999] ZACC 11
;
2000 (1)
SA 1
(CC);
1999 (10) BCLR 1059
(CC) at para 41.
25
Id.
26
Extradition Amendment
Act 77 of 1996
.
27
Doctors for Life International v Speaker of the National Assembly
and Others
[2006] ZACC 11
;
2006 (6) SA 419
(CC) at para 216;
2006 (12) BCLR 1399
(CC) at 1466H-1467A.
28
Id at paras 217-9; 1467C-G.
29
Id at para 219; 1467E-G.
30
Id at paras 36-7 and 220-1; 1417B-E and 1467G-1468A.
31
See for example
Doctors for Life
above n 27 at paras 37 and
211; 1417D-E and 1466A-B.
32
Pyle
Extradition, Politics, and Human Rights
(Temple University Press, Philadelphia 2001) at 3.
On the
history of extradition
Bassiouni states:
“
The
first recorded extradition treaty in the world dates back to circa
1280 B.C. In one of the oldest documents in diplomatic
history,
Ramses II, Pharoah of Egypt, signed a peace treaty with the Hittites
after he defeated their attempt to invade Egypt.
King Hattusili III
signed it for the Hittites, and the document, written in
hieroglyphics, is carved on the Temple of Ammon
at Karnak and is
also preserved on clay tablets in Akkodrain in the Hittite archives
of Boghazkoi. The peace treaty provided
expressly for the return of
persons sought by each sovereign who had taken refuge on the other’s
territory.”
Bassiouni
International Law Extradition: United States Law and Practice
,
4 ed (Oceana Publications Inc, New York 2002) at 32.
Bassiouni
observes too (at 32) that European texts of international law only
refer to the practices of Greece and Rome, overlooking
practices in
other civilizations. Yet, until the eighteenth century, Europe was
far behind in the practice of extradition in
comparison to other
civilizations.
It should
also be mentioned that the practice of orderly extradition was known
in traditional southern African societies. Writing
about Sepedi
clans, Prinsloo states:
“’
n
Algemene ooreenkoms tussen stamme vir die uitlewering van
misdadigers is onbekend. Indien ʼn oortreder na ʼn ander stamgebied

vlug, kan hy slegs ingevolge besondere onderhandelinge deur die
ander stam aan sy eie stam uitgelewer word. Die prosedure is
dat
die
kgoši
van die oortreder sy gedelegeerdes na die
kgoši
van die toevlugsgebied stuur, gebruiklik met ʼn geskenk, om die
versoek tot uitlewering te doen. Sodra die
kgoši
van die
toevlugsgebied die oortreder opgespoor en in hegtenis laat neem het,
laat weet hy die
kgoši
wat aansoek gedoen het, om die
oortreder te kom haal. Daar is ook gevalle bekend waar die
gedelegeerdes van die betrokke twee
magoši
die oortreder
gesamentlik opgespoor het. Goeie buurmanskap vereis dat ʼn
kgoši
se gedelegeerdes nie ʼn oortreder tot binne die gebied van ʼn
ander
kgoši
volg nie, maar dat onderhandelinge vir
uitlewering aangeknoop word. Sodanige onderhandelinge kan ten
opsigte van enige oortreding
aangeknoop word, maar die uitlewering
hang van die betrokke
kgoši
se welwillendheid af.”
(Footnote omitted.)
Prinsloo
Inheemse Publiekreg in Lebowa
(Van Schaik (Edms) Bpk, Pretoria 1983) at 71. The Sepedi term for
traditional leader is
kgoši
(plural: ‘
magoši
’).
My rough
translation of the above is as follows:
“
A general agreement between clans covering
extradition of an offender is unknown. In the event of an offender
fleeing to another
clan, he can only be surrendered to his original
clan through a process of special negotiations between the two.
This process
is one in which the
kgoši
to whose
chieftainship the transgressor belongs, sends his delegates to the
kgoši
of the area to which the offender has fled. Usually
after presenting a gift, the delegates request the handing over of
the offender.
As soon as the requested
kgoši
has tracked
down and arrested the offender, the requesting
kgoši
is
informed and invited to come and fetch him. There are also examples
where delegates of the two
magoši
, jointly tracked down the
offenders. The dictates of good neighbourliness require the
requesting
kgoši’s
delegates to refrain from following the
offender into the territory of another
kgoši
, and rather to
pursue the path of negotiation. Such negotiation can take place in
respect of any transgression, but the actual
extradition of the
offender is dependent on the requested
kgoši’s
willingness
to heed the request.”
33
Bassiouni above n 32 at xi.
34
La Forest above n 1. The purposes of extradition were discussed in
some detail by the Supreme Court of Canada in
United States of
America v Cotroni
(1989), 48 C.C.C. (3d) 193 at 215-9.
35
Thus in
Mohamed
(above n 2) this Court criticised the conduct
of South African agents who, without following proper procedures
handed over to
agents of the United States a person to be put on
trial in New York for alleged terrorist offences. The Court stated
at paragraph
68:
“
South Africa is a young democracy still finding its
way to full compliance with the values and ideals enshrined in the
Constitution.
It is therefore important that the State lead by
example . . . . [W]e saw in the past what happens when the State
bends the
law to its own ends and now, in the new era of
constitutionality, we may be tempted to use questionable measures in
the war against
crime. The lesson becomes particularly important
when dealing with those who aim to destroy the system of government
through
law by means of organised violence. The legitimacy of the
constitutional order is undermined rather than reinforced when the

State acts unlawfully. Here South African government agents acted
inconsistently with the Constitution in handing over Mohamed
without
an assurance that he would not be executed and in relying on consent
obtained from a person who was not fully aware of
his rights and was
moreover deprived of the benefit of legal advice. They also acted
inconsistently with statute in unduly accelerating
deportation and
then despatching Mohamed to a country to which they were not
authorised to send him.”
36
Gilbert states:
“
While
bilateral treaties were the first method to be used to conclude
extradition relations, states have since developed alternative
forms
of arrangement. For instance, even though a universal multilateral
convention open for accession by any state in the world
is an
impractical dream, regional conventions have proved popular.
Furthermore, in an effort to ensure serious offenders do not
escape
justice, the United Nations sponsored anti-terrorist conventions
have included clauses to permit them to be used as surrogate

extradition treaties where no treaty exists between the requesting
and asylum states. In more specific situations, states with
close
geographical and historical connections have reached agreements
allowing for very much simplified procedures. Finally,
states have
occasionally provided for extradition without any international
arrangement through domestic legislation; the object
is to ensure
that a state does not become a safe-haven for criminals and to
facilitate in a practical way the comity of nations.”
See
Gilbert
Aspects of Extradition Law
(Martinus Nijhoff
Publishers, The Netherlands 1991) at 20.
Gilbert
states further (at 33):
“
Procedural
extradition must be placed within the wider perspective of mutual
assistance in criminal matters of which it is but
a part. Thus,
extradition is part of a wider network of systems of co-operation in
law enforcement. Mutual legal assistance
treaties are mainly used
to obtain evidence outside the jurisdiction, but mutual assistance
can also be seen in broader forms
of co-operation when meeting the
problem of crimes or criminals that cross frontiers.”
On the
core element of extradition, Bassiouni (above n 32
at
36) states the following:
“
The duty to extradite by virtue of a treaty, whether
it be bilateral or multilateral, is the prevalent practice among
states,
though reciprocity and comity still exist as legal bases
relied upon by a number of states, usually through the support of
national
legislation. For example, the United States requires a
treaty, as does the United Kingdom and the most common law
countries.
The practice in the civil law countries, by contrast, is
less demanding of formal treaty obligations. Instead, extradition

may be granted on the bases of reciprocity and comity.”
37
See section 5 of the Act.
38
See section 9 and 10 of the Act.
39
Section 19 provides:
“
No
person surrendered to the Republic by any foreign State in terms of
an extradition agreement or by any designated State shall,
until he
or she has been returned or had an opportunity of returning to such
foreign or designated State, be detained or tried
in the Republic
for any offence committed prior to his or her surrender other than
the offence in respect of which extradition
was sought or an offence
of which he or she may lawfully be convicted on a charge of the
offence in respect of which extradition
was sought, unless such
foreign or designated State or such person consents thereto:
Provided that any such person may at the
request of another foreign
or designated State and with a view to his or her surrender to such
State, be detained in the Republic
for an extraditable offence which
was so committed, provided such detention is not contrary to the
laws of the State which surrendered
him or her to the Republic.”
Section 20
provides:
“
The Minister may at the request of any person
surrendered to the Republic return such person to the foreign State
in or on his
way to which he was arrested, if─
(a) in the case of a person accused of an offence,
criminal proceedings against him are not instituted within six
months after
his arrival in the Republic; or
(b) he is acquitted of the offence for which his
surrender was sought.”
40
Id.
41
In the
Quagliani
matter, the High
Court made a costs order against all the respondents jointly and
severally, the one paying the others to be
absolved. In this
Court, the intervening parties (the Speaker of the National
Assembly and the Chairperson of the NCOP) protested
that they
should not have been joined, as the issue that had led to their
intervening had not been ruled upon and
no
substantive relief was granted against them. Since the adverse
costs order has fallen away, it is not necessary to decide
whether
it had been correctly made.
42
On 23 July 2008, this Court rejected his application to intervene or
be admitted as an amicus in the present
matter, and postponed
its decision in respect of his application for direct access,
pending delivery of
judgment in the present matter.
43
Above n 27.
44
Mr van Rooyen re-stated arguments made on his behalf at the hearing,
and added that the Stratton affidavit showed that at least
two of
the provinces had not provided mandates for the Australian Treaty,
strengthening the supposition that no mandates had
been given in
respect of the USA Agreement which had been approved in the same
session of Parliament. He quoted from an article
by Professors
Murray and Simeon stating that provincial delegations were remiss in
not getting mandates for approval of international
agreements (“From
Paper to Practice: The National Council of Provinces after its first
year” (1999) 14
SA Public Law
95 at 128).
45
Rail Commuters Action Group v Transnet Ltd t/a
Metrorail
[2004] ZACC 20
;
2005 (2) SA
359
(CC);
2005 (4) BCLR 301
(CC).
46
Id a
t para 43.
47
Above [29]-[31].
48
Above n 45 at para 47.