CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 235/19 and 243/19
In the matter between:
JASON SMIT Applicant
and
MINISTER OF JUSTICE AND CORRECTIONAL
SERVICES First Respondent
MINISTER OF HEALTH Second Respondent
DIRECTOR OF PUBLIC PROSECUTIONS,
WESTERN CAPE Third Respondent
ADDITIONAL MAGISTRATE, SOMERSET WEST Fourth Respondent
MAGISTRATE, PRETORIA Fifth Respondent
Neutral citation: Smit v Minister of Justice and Correctional Services and Others
[2020] ZACC 29
Coram: Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J,
Mathopo AJ, Mhlantla J, Theron J, Tshiqi J and Victor AJ
Judgments: Tshiqi J (minority): [1] to [96]
Madlanga J (majority): [97] to [155]
Heard on: 20 February 2020
Decided on: 18 December 2020
Summary: Drugs and Drugs Trafficking Act 140 of 1992 —
constitutionality of section 63 and Schedules — section is
unconstitutional and only the amendments are unconstitutional.
Section 63 assigns plenary legislative power to the minister —
Breach of doctrine of separation of powers.
Extradition Act 67 of 1962 — Constitutionality of section 5(1)(a)
— section is unconstitutional.
Breach of separation of powers — lack of Magistrate discretion
— Section 12 of the Constitution — insufficient safeguards to
protect the right not to be deprived of freedom arbitrarily.
ORDER
On appeal and for confirmation of the order of the High Court of South Africa,
Western Cape Division, Cape Town:
1. The declaration of invalidity made by the High Court of South Africa,
Western Cape Division, Cape Town is confirmed in the terms set out in
paragraph 2.
2. Section 63 of the Drugs and Drug Trafficking Act 140 of 1992 is
declared to be inconsistent with the Constitution and invalid to the
extent that it purports to delegate plenary legislative power to amend
Schedules 1 and 2 to the Drugs and Drug Trafficking Act to the Minister
of Justice and Correctional Services.
3. The following purported amendments to Schedules 1 and 2 to the Drugs
and Drug Trafficking Act are declared invalid:
(i) GN R1765 of 1 November 1996, which amended Part III of
Schedule 2;
(ii) GN R344 of 13 March 1998, w hich amended Part I and II of
Schedule 1;
(iii) GN R760 of 11 June 1999, which amended Part I, II and III of
Schedule 2;
(iv) GN R521 of 15 June 2001, which amended Part I of Schedule 1
and Part I, II, and III of Schedule 2;
(v) GN R880 of 8 October 2010, which amended Part II of
Schedule 1; and
(vi) GN R222 of 28 March 2014, which amended Part I, II, and III of
Schedule 2.
4. The declarations of invalidity in paragraphs 1, 2 and 3 of the order take
effect from the date of this order.
5. The order of invali dity is suspended for a period of 24 months to allow
Parliament to cure the defect.
6. The application for leave to appeal directly to this Court is granted.
7. The appeal against the order of the High Court in terms of which it
refused to declare all the Schedules to the Drugs and Drug Trafficking
Act invalid, but only the amendments to Schedules 1 and 2 of the Drugs
and Drug Trafficking Act, effected in terms of section 63, as invalid is
dismissed.
8. The appeal against the order of the High Court dismiss ing the
application to declare section 5(1)(a) of the Extradition Act 67 of 1962
to be inconsistent with the Constitution is upheld, and that order is set
aside.
9. Section 5(1)(a) of the Extradition Act 67 of 1962 is declared to be
inconsistent with the Constitution and invalid.
10. The declaration of invalidity in paragraph 9 takes effect from the date of
this order.
11. Each party must pay its own costs.
TSHIQI J
6
JUDGMENT
TSHIQI J (Jafta J, Mhlantla J and Victor AJ concurring):
Introduction
[1] There are two applications in this matter, and they arise from the order of the
High Court of South Africa, Western Cape Division, Cape Town, per Francis AJ. The
first one is an application to confirm a declaration that section 63 of the Drugs and
Drug Trafficking Act1 (Drugs Act) and amendments made to Schedules 1 and 2 to the
Drugs Act, are inconsistent with the Constitution. The second one is an application
for leave to appeal dir ectly to this Court against the order of the High Court , which
consists of the following components. The first attack is against the finding that not
all the Schedules to the Act but only the amendments to Schedules 1 and 2 to the
Drugs Act effected in terms of section 63 are in valid. The second attack is aimed at
the refusal by the High C ourt to declare the provisions of section 5(1)(a) of the
Extradition Act 2 to be inconsistent with the Constitution. The applicant has also
attacked the order of the High Court on a ground linked to both the Drugs Act and the
Extradition Act. He argues that following this Court’s judgment in Prince,3 the
offence for which he is charged in the U nited Kingdom (UK) is no longer an offence
in South Africa in terms of the Drugs Act, and that the double criminality requirement
envisaged in the Extradition Act has not been satisfied.
1 140 of 1992.
2 67 of 1962.
3 Minister of Justice and Constitutional Development v Prince (Clarke and Others Intervening); National
Director of Public Prosecutions v Rubin; National Director of Public Prosecutions v Acto n [2018] ZACC 30;
2018 (6) SA 393 (CC); 2018 (10) BCLR 1220 (CC) (Prince).
TSHIQI J
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Parties
[2] The applicant is Mr J ason Smit , an adult South African citizen and
businessman currently residing in Somerset West, Western Cape. The first respondent
is the Minister of Justice and Correctional Services (Minister). The second respondent
is the Minister of Health. The third respondent is the Director of Public Prosecutions
for the Western Cape. The fourth respondent, the Additional Magistrate, Somerset
West, was the presiding officer in the extradition proceedings against the applicant.
The fifth respo ndent, the Magistrate, Pretoria, received a notification from the
Minister for the applicant’s surrender to the UK and issued the warrant for the arrest
of the applicant.
Background
[3] The application in the High Court flowed from a request, made in terms of
section 4 of the Extradition Act, from the UK to the Minister. The request was for the
arrest and subsequen t extradition of the applicant. It alleged that the applicant had
committed various criminal offences relating to the production, intent to supply, and
possession of cannabis under the UK’s Misuse of Drugs Act , 1971 and that the
charges against him were still pending.
[4] The circumstances surrounding the request for the applicant’s extradition are
outlined in an affidavit in support of his extraditio n, which was attested to by Police
Constable Steven John Wilde of the Cumbria P olice Constabulary in the UK . Police
Constable Wilde state d that a quantity of cannabis was found in the f lat in which the
applicant was residing , as well as two other residences that were leased out in his
name in the UK . The applicant was arrested and taken to the police station for
questioning. Subsequent to the arrest, the applicant was granted police bail and
directed to return to Durranhill Custody Unit, Carlisle Police Station, on 15 May 2008.
The applicant failed to comply with his bail conditions and a warrant for his arrest was
issued by the Ede n Magistrate’s Court, Carlisle, Cumbria, England on 30 January
2009. The request for the applicant’s extradition was also supported by an affidavit
TSHIQI J
8
from Ms Alison Claire Riley, a barrister and crown advocate with the Crown
Prosecution Service of England and Wales.
[5] In or about May 2011, the Minister issued a notification in terms of
section 5(1)(a) of the Extradition Act to the effect that a request for the surrender of
the applicant had been received. A warrant for his arrest was duly issued, and he was
arrested in Somerset West, near Cape Town. On the same day, the applicant appeared
before the Additional Magistrate, Somerset West, where proceedings relating to the
extradition inquiry were adjourned sine die (without setting a time to reconvene). H e
was released on bail, which has since been extended from time to time.
Litigation history
High Court
[6] On 5 August 2015, the applicant launched an application in the High Court,
Western Cape Division, Cape Town, where he sought an order to the e ffect that
section 63 of the Drugs Act and all the Schedules made in terms of section 63 , and
section 5(1)(a) of the Extradition Act , are inconsistent with the Constitution and
invalid. The attack on section 63 of the Drugs Act was based on the premise that it
delegates plenary legislative power whic h ought to be exercised by the L egislature to
the Minister, who is part of the Executive arm of government , in breach of the
doctrine of separation of powers.
[7] Regarding section 5(1)(a) of the Extradition Act , the applicant submitted that
its jurisdictional factors were satisfied by the mere receipt of the notification by the
Magistrate, consequently the latter was stripped of his discretion as a judicial officer
to decide whether to issue a warrant or not. This, according to the applicant , means
that the Magistrate is not required to exercise any discretion before issuing the
warrant, but simply to rubber-stamp the notification from the Executive, thereby
undermining judicial independence in breach of section 165(2) of the Constitution.
TSHIQI J
9
[8] Regarding the merits of the pending criminal trial in the UK, and apart from the
constitutional attacks on the two pieces of legislation, the applicant denied that the
substance found in his flat was cannabis and denied that the two other addresses
where the cannabis was found were rented in his name with his knowledge. He
further denied that he was warned to return to Durranhill Custody Unit, Carlisle Police
Station on 15 May 2008.
[9] The Minister opposed the application. The third respondent, Director of Public
Prosecutions for the Western Cape, filed a short affidavit in support of the
submissions advanced by the Minister. The remaining respondents did not formally
participate in the proceedings before the High Court, with the second and fo urth
respondents filing notices to abide.
[10] The first issue raised by the Minister , which was considered as a preliminary
issue by the High Court, was whether the applicant had the legal standing to challenge
the provisions of section 63 of the Drugs Act. The Minister contended that the
applicant was not entitled to challenge the constitutional validity of all Schedules
made in terms of section 63 of the Drugs Act. According to the Minister, the
applicant’s standing was confined to challenging the listing of cannabis in Part III of
Schedule 2, as the applicant is not adversel y affected by the listing of the other
substances in the Schedules to the Drugs Act.
[11] The Minister also submitted that it was unnecessary to deal with the
constitutional validity of section 5(1)(a) , because even if t he Court were to find that
the section was unconstitutional and invalid, this would be of no assistance to the
applicant, as the warrant was issued in terms of section 5(1)(b) and was, therefore,
valid.
[12] Regarding legal standing, t he High C ourt held t hat as the extradition
proceedings and the possible threat to the applicant’s freedom hinge on the content of
a Schedule to the Drugs Act, read together with the prohibi tion contained in the
TSHIQI J
10
impugned statute, it was the Drugs Act and the Schedule that the applicant sought to
impugn. T his constituted the applicant’s cause of action. The High Court also held
that, because the applicant is not only challenging the cannabis prohibition , but also
the Drugs Act and its Schedules, he had standing on the basi s of the rule of la w and
the principle of legality.
[13] The High Court further held that the possible usurpation by the Executive of
plenary legislative powers is a matter of public interest. It impacts on the broader
concerns of accoun tability and responsiveness which are hallmarks of the doctrine of
the separat ion of powers . In the High Court’s view, the applicant had sufficient
interest, also on this basis, in the subject matter of the dispute.
[14] Having found that the applicant h ad legal standing, the Court considered the
merits of the application. Regarding the attack on the constitutionality of section 63
and the Schedules, the High Court held that section 63 constitutes an impermissible
delegation of plenary legislative power to a member of the Executive. According to
the High Court, when the Minister takes a decision to include or delete a substance in
a Schedule to the Drugs Act, he is in fact amending plenary legislation.
[15] The High Court held further that i n conferring this power to amend the
Schedules, the Le gislature has also given the Minister the power to create new
criminal offences without t he requisite public consultation process that is required
when Parliament does so. The High Court concluded that section 63 is inconsistent
with the Constitution and that only those amendments to the Schedules effected in
terms of section 63 fall to be declared invalid. It held that , since cannabis was not
included in the Schedules of the Drugs Act as a result of t he exercise of the powers
conferred on the Minister by section 63, the original Schedule proscribing cannabis
cannot be impugned. The High Court accordingly declared section 63 and the
Schedules amended in terms thereof inconsistent with the Constitution and invalid.
TSHIQI J
11
[16] With regard to the contention that it was not necessary to deal with the
constitutional challenge to section 5(1)(a) of the Extradition Act, the Court held that it
was not persuaded in this regard because the applicant had alleged that the warrant
had been issued in terms of section 5(1)(a) of the Extradition Act . The Court also
referred to S v J ordan,4 where this Court held that it is incumbent on a High Court ,
when considering a constitutional challenge , to express its opinion on all
constitutional challenges raised , even thoug h the Court may decide to resolve the
matter only on one ground.
[17] The High Court accepted the submission that the Magistrate is not required to
exercise a discretion after receipt of the notification from the Minister . It held that the
issuance of a warrant pursuant to section 5(1)(a) does not necessarily entail a
substantive exercise of any discretion by the Magistrate. Rather, it simply depends on
the establishment of an objective fact, namely the issue of a notification by the
Minister. It held that there is no merit in the argument that the Magistrate must be
satisfied, independently, that the person concerned is indeed liable to be surrendered
to the requested state before issuing a warrant in terms of section 5(1)(a) of the
Extradition Act.
[18] However, the Court held that section 5(1)(a) of the Extradition Act does not
infringe on the constitutionally protected right to freedom and security of the person,
which includes the right not to be deprived of freedom arbitrarily or without just
cause. It reasoned that there are built in safeguards to ensure procedural fairness in
the extradition enquiry, and that there was thus no limitation of rights as envisaged in
section 36 of the Constitution. It also concluded that the warrant of arrest was validly
issued under section 5(1)(a) and 5(1)(b) of the Extradition Act.
4 S v Jordan (Sex Workers Education and Advocacy Task Force as Amici Curiae) [2002] ZACC 22; 2002 (6) SA
642 (CC); 2002 (11) BCLR 1117 (CC) at para 21.
TSHIQI J
12
[19] The High Court accordingly dismissed the application to declare section 5(1)(a)
inconsistent with the Constitution. It granted an order declaring Section 63 of the
Drugs Act and the following amendments made to the Schedules by the Minister in
terms of section 63 to be inconsistent with the Constitution:
(a) GN R1765 of 1 November 1996, which amended Part III of Schedule 2;
(b) GN R344 of 13 March 1998 , which amended Part I and II of Schedule
1;
(c) GN R760 of 11 June 1999 , which amended Parts I, II and III of
Schedule 2;
(d) GN R521 of 15 June 2001 , which amended Part I of Schedule 1 and
Parts I to III of Schedule 2;
(e) GN R880 of 8 October 2010, which amended Part II of Schedule 1; and
(f) GN R222 of 28 March 2014 , which amended Part I, II and III of
Schedule 2.
[20] Regarding costs, the High Court reasoned that , as both parties had enjoyed a
measure of success, and because the applicant had raised important issues of law,
especially in relation to the Drugs Act, the Biowatch5 principle applied, even though
the limited finding in favour of t he applicant did not provide any succour to him. The
Court therefore ordered that each party pays its own costs.
In this Court
Jurisdiction
[21] We have jurisdiction to entertain the application for confirmation of the order
of invalidity by the High Court. In terms of section 172(2) of the Constitution, an
order of c onstitutional invalidity has no force unless it has been confirmed by this
Court. The High Court has declared section 63 of the Drugs Act inconsistent with the
5 Biowatch Trust v Registrar Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR
1014 (CC).
TSHIQI J
13
Constitution and this Court is required to determine whether or not to confirm the
order of the High Court in this regard.
[22] Regarding the interpretation of section 5(1)(a) of the Extradition Act, this Court
has jurisdiction to entertain the application for leave to appeal directly to it. The
interpretation of the provision raises a constitutional issue ,6 as it has the potential to
impact the rights enshrined in sections 12(1)(a) and 35 of the Constitution. This Court
also has jurisdiction to deal with the application for leave to appeal directly to it on the
refusal by the High Court to declare all the Schedules to the Drugs Act inconsistent
with the Constitution. The impugned Schedules to the Drugs Act , have the effect of
criminalising certain substances and plants listed therein . The f air trial rights of
accused persons who ha ve been charged with offences aris ing from the use of or
dealing with substances listed in the Schedules would be impacted by an order
concerning constitutional invalidity.
Application for leave for direct appeal
[23] It is in the interests of justice to entertain the application to appeal directly to
this Court, as contemplated in section 167(6)(b) of the Constitution . The
constitutional challenge to section 5(1)(a) of the Extradition Act , which is the subject
of the appeal, and the content of the warrant issued by the Magistrate, are inextricably
linked to the constitutional challe nge to the Drugs Act , which is the subject of the
confirmation application . They are so connected because section 5(1)(a) and (b) of
the Extradition Act authorise the issue of a warrant if the person required to be
6 See section 167(3)(b) of the Constitution which states:
“(3) The Constitutional Court—
. . .
(b) may decide—
(i) constitutional matters; and
(ii) any other matter, if the Constitutional Court grants leave to appeal
on the grounds that the matter raises an arguable point of law of
general public importance which ought to be considered by that
Court.”
TSHIQI J
14
extradited is accused or convicted of an offence committed in the foreign state , and
the issue of the warrant would be justified if the offence had been committed in South
Africa (the double criminality requ irement). In the event that this Court finds that
cannabis related offences no longer exist in South Africa and that the double
criminality requirement has not been satisfied , then the warrant would have to be set
aside. A refusal to deal with the application for leave to appeal directly to this Court
in matters that are so interlinked would lead to unnecessary duplication of legal
resources.
[24] Furthermore, it is in the interests o f justice that we entertain the application for
direct leave to appeal to this Court against the refusal by the High Court to declare all
the Schedules to the Drugs Act inconsistent with the Constitution, because this raises
an arguable point of law of general public importance. The challenge, which is an
arguable point of law of general public importance, centres around whether all the
Schedules to the Drugs Act were tainted as a result of the amendments made to the
Schedules in terms of section 63 and should thus be struck down , or whether only
those amended by the Minister are invalid. Even if this Court concludes that not all
the Schedules are tainted, but that only those amended in terms of section 63 are to be
declared invalid, the application raises a matter of ge neral public importance, because
the Minister has already purported ly amended the Schedules six times under a
potentially invalid provision in the statute. These amendments, if not set aside , will
have the effect of retaining invalid Schedules to the Drugs Act. This may affect other
people against whom warrants have been issued, and also other accused persons who
have been charged with the offences arising from the inclusion of certain substances
listed in the Schedules. This in turn would have the effect of infringing fair trial rights
enshrined in section 35(3) of the Constitution.
Legal standing
[25] In this Court , the Minister persists with the argument raised in the High Court
that the applicant did not have legal standing to challenge the provisions of section 63
TSHIQI J
15
of the Drugs Act. Legal standing in constitutional matters is determined in accordance
with section 38 of the Constitution which provides:
“Anyone listed in this se ction has the right to approach a competent court, alleging
that a right in the Bill of Rights has been infringed or threatened, and the court may
grant appropriate relief, including a declaration of rights. The persons who may
approach a court are—
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their
own name;
(c) anyone acting as a member of, or in the interest of, a group or class of
persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.”7
[26] In Giant Concerts ,8 although this Court cautioned that courts should not be
required to deal with abstract or hypothetical issues, and should devote their scarce
resources to issues that are properly before them, it held that own -interest standing
does not require that a litigant be the person whose constitutional right has been
infringed or threatened. It stated: “ [w]hat the section requires is that the person
concerned should make the challenge in his or her own interest.”9
[27] This Court then said—
“one must add that the interests of justice under the Constitution may require courts
to be hesitant to dispose of cases on standing alone where broader concerns of
accountability and responsiveness may require investigation and determination of the
merits. By corollary, there may be cases where the interests of justice or the public
interest might compel a court to scrutinise action even if the applicant’s standing is
7 See Ferreira v Levin N.O.; Vryenhoek v Powell N.O. [1995] ZACC 13; 1996 (1) SA 984 (CC); 1996 (1) BCLR
1 (CC) at para 36-9.
8 Giant Concerts CC v Rinaldo Investments (Pty) Ltd [2012] ZACC 28; 2012 JDR 2298 (CC); 2013 (3) BCLR
251 (CC).
9 Id at para 37.
TSHIQI J
16
questionable. When the public interest cries out for relief, an applicant should not fail
merely for acting in his or her own interest.”10
[28] The applicant has satisfied the threshold set in Giant Concerts relating to own-
interest standing. In contesting the constitutional validity of section 63, the applicant
argued that all the Schedules to the Drugs Act are tainted because each time the
Minister effected amendments to the Schedules, this entailed a decision regarding
which substances or plants to delete or leave in the Schedules. This, according to the
applicant, illustrates that the retention of cannabis in the Schedules was as a result of
the exercise of the section 63 power by the Minister. Although the order by the
High Court amounted to an empty victory for the applicant, it is clear that in bringing
the application, he believed that an order declaring that section 63 , together with all
the Schedules, is inconsistent with the Constitution, would lead to a finding that
cannabis is no longer an offence in South Africa. This would mean that the double
criminality requirement had not been satisfied and that the warrant for his extradition
would be successfully impugned. A successful attack on the constitutional validity of
the section and all of the Schedules would thus have removed the threat of his pending
extradition and would protect his rights enshrined in section 12(1)(a) of the
Constitution.
[29] The application also raises public interest issues in that a confirmation of the
declaration of the constitutional invalidity of section 63 will result in the removal of a
provision that undermines the doctrine of separation of powers from the statute.
Is section 63 of the Drugs Act inconsistent with the Constitution?
[30] Section 63 of the Drugs Act provides:
“Amendment of Schedules 1 and 2. — The Minister may by notice in the Gazette and
after consultation with the Minister of National Health—
10 Id at para 34.
TSHIQI J
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(a) include any substance or plant in Schedule 1 or 2;
(b) delete any substance or plant included in that Schedule; or
(c) otherwise amend that Schedule.”
[31] The applicant , in challenging the constitutional validity of section 63 of the
Drugs Act, argued that to the extent that section 63 delegates plenary legislative power
to the Minister, it is inconsistent with the Constitution. The Minister has not argued
that section 63 authorises a permissible delegation of plenary legislative power to the
Minister, who is a member of the Executive arm of government. This is hardly
surprising. Plenary power is the authority to pass, amend or repeal an Act of
Parliament.11 Rabie and Erasmus define plenary legislative power as follows:
“Plenary means of full scope or extent; complete or absolute in force or effect.
Plenary legislative power, in the full sense of the phrase would be the power enjoyed
by Parliament.”12
[32] In order to understand the diffe rent tiers of legislative authority , it is helpful to
refer to sections 43 and 44 of the Constitution. Section 43 provides:
“In the Republic, the legislative authority––
(a) of the national sphere of government is vested in Parliament, as set
out in section 44;
(b) of the provincial sphere of government is vested in the provincial
legislatures, a set out in section 104; and
(c) of the local sphere of government is vested in the Municipal
Councils, as set out in section 156.”
[33] Section 44 provides:
“(1) The national legislative authority as vested in Parliament––
11 Mojapelo “The doctrine of Separation of Powers (a South African perspective)” (conference paper presented
at the Middle South Africa Conference, 2012) at 41.
12 Rabie and Erasmus “When Delegated Power Becomes Plenary Powers” (1989) 5 SAJHR 440 at 444.
TSHIQI J
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(a) confers on the National Assembly the power—
. . .
(ii) to pass legislation with regard to any matter, including a
matter within the functional area listed in Schedule 4, but
excluding, subject to s ubsection (2), a matter within a
functional area listed in Schedule 5.”
[34] Schedule 5 of the Constitution conta ins a list of functional areas of exclusive
provincial legislative competence and local governance. Executive bodies derive their
power almost exclusively from statutes. Rautenbach and Malherbe observe that t he
law by which the power is conferred (the en abling statute) provides, to a large extent ,
the particulars for lawful executive action.13
[35] The Legislature may not assig n plenary legislative power to another body,
including the power to amend the statute. Subordinate legislation is one not enacted
by Parliament. In Executive Council,14 this Court said:
“There is nothing in the Constitution which prohibits Parliament from delegating
subordinate regulatory authority to other bodies. The power to do so is necessary for
effective law making. It is implicit in the power to make laws for the country, and I
have no doubt that under our Constitution Parliament can pass legislation delegating
such legislative functions to other bodies. There is, however, a difference between
delegating authority to make subordinate legislation within the framework of a statute
under which the delegation is made, and assigning plenary power to another body.”15
[36] Section 63 confers on the Minister plenary legislative power to amend the
Schedules. As the Schedules are essentially part and parcel of the Act ,16 it in effect
13 Rautenbach and Malherbe Constitutional Law revised 2 ed (Butterworth Publishers (Pty) Ltd, Durban 1997) at
192.
14 Executive Council of the Western Cape Legislature v President of the Republic of Sout h Africa [1995] ZACC
8; 1995 (4) SA 877 (CC); 1995 (10) BCLR 1289 (CC).
15 Id at para 51.
16 De Reuck v Director of Public Prosecutions (Witwatersrand Local Division) [2003] ZACC 19; 2004 (1 ) SA
406 (CC); 2003 (12) BCLR 1333 (CC) at para 37.
TSHIQI J
19
delegates original power to amend the A ct itself. This is a complete delegation of
original legislative power to the Executive and there is no clear and binding
framework for the exercise of the powers. This is constitutionally impermissible.
[37] Section 63 also undermines the doctrine of separation of powers , which this
Court has repeatedly affirmed as an important constitutional principle. In Treatment
Action Campaign (No 2),17 this Court stated:
“This Court has made it clear on more than one occasion that , although there are no
bright lines that separate the roles of the Legislature, the Executive and the courts
from one another, there are certain matters that are pre -eminently within the domain
of one or other of the arms of government and not the others. All arms of
government should be sensitive to and respect this separation.”18
[38] In Doctors for Life,19 this Court said:
“Parliament has a very special role to play in our constitutional democracy – it is the
principal legislative organ of the state. With due regard to that role, it must be free to
carry out its functions without interference.
. . .
The constitutional principle of separation of powers requires that other branches of
government refrain from interfering in parliamentary proceedings. This principle is
not simply an abstract notion; it is reflected in the very structure of our government.
The structure of the provisions entrusting and separating powers between the
legislative, executive and judicial branches reflects the concept of separation of
powers. The principle “has important consequences for the way in which and the
institutions by which power can be exercised.”20
17 Minister of Health v Treatment Action Campaign (No 2) [2002] ZACC 15; 2002 (5) SA 721 (CC); 2002 (10)
BCLR 1033 (CC).
18 Id at para 98.
19 Doctors for Life International v Speaker of the National Assembly [2006] ZACC 11; 2006 (6) SA 416 (CC);
2006 (12) BCLR 1399 (CC) at paras 36-7.
20 See also Certification of the Constitution of the Republic of South Africa , 1996 [1996] ZACC 26; 1996 (4) SA
744 (CC); 1996 (10) BCLR 1253 (CC) (First Certification case).
TSHIQI J
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[39] For all these reasons, the application for confirmation of the order of the High
Court that section 63 is inconsistent with the Constitution should succeed.
The direct appeal
[40] As already stated , the applicant seeks to appeal directly to this Court, on the
following grounds: first, the applicant seeks to appeal against the finding that not all
the Schedules to the Act, but only the amendments to Schedules 1 and 2 of the Drugs
Act effected in terms of section 63 are invalid. The applicant’s argument in this
regard is that each time the Minister purported to amend the Schedules in terms of
section 63, he created his own Schedules and that all the Schedules, including those
originally enacted by Parliament are therefore invalid. The second ground of appeal is
against the refusal by the High Court, to declare the provisions of section 5(1)(a) of
the Extradition Act inconsistent with the Constitution. According to the applicant,
section 5(1)(a) of the Extradition Act is inconsistent with the Constitution because the
Magistrate is not required to exercise any discretion before issuing the warrant , but
simply to rubber-stamp the notification from the Executive, thereby undermining
judicial independence. The applicant also challenges the order of the High C ourt on a
ground related to the Drugs Act and the Extradition Act. He submits that, following
this Court’s judgment in Prince, the offence for which he is charged in the UK is not
an offence in South Africa in terms of the Drugs Act , and that , therefore, the double
criminality requirement envisaged in the Extradition Act has not been satisfied.
Are all the Schedules to the Drugs Act tainted by the declaration of invalidity?
[41] The answer to this question is in the negative. The scheme of the Drugs Act in
relevant part is as follows: The Drugs Act was enacted by Parliament and came into
force on 30 April 1993. Section 3 of the Drugs Act prohibits the manufacturing or
supply of any Scheduled substance. Section 4 prohibits use and possession of any
dependence producing substance, dangerous dependence producing substance, and
undesirable dangerous dependence produ cing substance unless certain conditions are
TSHIQI J
21
met. Section 4 will be amended to align with this Court’s recent judgment in Prince,
which will have the effect of allowing the private use or possession of cannabis by an
adult person for his or her own consum ption. The Drugs Act defines “ Scheduled
substance” as any substance included in Part I and II of Schedule 1. “Dangerous
dependence-producing substance” is defined as any substance or any plant from which
a substance can be manufactured included in Part I I of Schedule 2. “Undesirable
dependence-producing substance” is defined as any substance or any plant from which
a substance can be manufactured included in Part III of Schedule 2. Cannabis is listed
in Part III of Schedule 2.
[42] Section 5 provides:
“No person shall deal in—
(a) any dependence-producing substance or
(b) any dangerous dependence -producing substance or any undesirable
dependence-producing substance”
[43] The Minister purported to amend Schedules 1 and 2 six times in te rms of
Section 63. However, cannabis was listed in Part III of Schedule 2 in terms of the
enactment of the Drugs Act and thus th rough the original statute by Parliament. The
listing of cannabis as an undesirable dangerous dependence producing substance thus
stems from the exercise of the original plenary legislative powers by Parliament, and
not from the purported amendments by the Minister. A declaration that section 63 is
inconsistent with the Constitution means that only the purported amendments made
under section 63 should be set aside.
[44] Another factor is that , as the Minister was not competent to exercise plenary
legislative powers to amend the Schedules, any purported amen dments were of no
effect on the Schedules and therefore invalid. The consequence, therefore, is that
there were no Schedules created by the Minister. As the Minister has not validly
effected any amendments to the Drugs Act , there is no basis on which to strike down
the original portions of the Drugs Act and the original Schedules. It follows that only
TSHIQI J
22
the purported amendments to the Schedules are invalid. The appeal against the order
of the High Court that only those purported amendments to Schedules 1 and 2 are
invalid should thus be dismissed.
Is section 5(1)(a) of the Extradition Act inconsistent with the Constitution?
[45] Section 5(1) of the Extradition Act provides:
“(1) Any Magistrate may, irrespective of the whereabouts or suspected whereabouts
of the person to be arrested, issue a warrant for the arrest of any person—
(a) upon receipt of a notification from the Minister to the effect that a
request for the surrender of such person to a foreign State h as been
received by the Minister; or
(b) upon such information of his or her being a person accused or
convicted of an extraditable offence committed within the
jurisdiction of a foreign State, as would in the opinion of the
Magistrate justify the issue of a warrant for the arrest of such person,
had it been alleged that he or she committed an offence in the
Republic.” (Emphasis added)
[46] The warrant of arrest in the present matter reads:
“Whereas a request under Section 4(1) of the Extradition Act 67 of 1962, has
been received and a notification under Section 5(1)(a) of the Act for the
surrendering of one Jason Smit has been issued by the Minister.
Whereas I am in receipt of information under oath that a warrant of arrest has been
issued in the United Kingdom against Jason Smit and he is wanted to answer a
complaint, charging him with crimes relating to producing and cultivating a
controlled drug and possession o f controlled drug under the
Misuse of Drugs Act 1971.
And whereas I am also of the opinion, based upon information placed before me, that
the issuing of a warrant of arrest under Section 5(1)(a) of the Extradition Act 67
of 1962, in respect of Jason Smit would have been justified on the similar charge of
cultivation of dagga and possession of and or dealing in dagga had it been alleged that
TSHIQI J
23
he committed the said offence in the Republic, and that he is a person liable to be
surrendered to the United Kingdom.
You are hereby directed to arrest him and to bring him before a lower court in
accordance with the provisions of Section 50 of the Criminal Procedure Act, 1977
(Act 51 of 1977).”
[47] The initial basis for the constitutional attack was that the warrant was issued in
terms of section 5(1)(a) of the Extradition Act and that the section is inconsistent with
the Constitution , because it deprives the Magistrate of the power to exercise a
discretion whether to issue a warrant, thus confining the Magistrate’s role to that of
rubber-stamping the notification by the Minist er. During argument , counsel for the
applicant conceded that the warrant withstands scrutiny.
[48] Even though this concession was made, it is nonetheless necessary for this
Court to consider whether section 5(1)(a) of the Extradition Act is inconsistent with
the Constitution because t he applicant in the High Court had launched a frontal attack
on the pro visions of section 5(1)(a). As this is a direct appeal against the refusal by
the High Court to declare the section inc onsistent with the Constitution, this Court has
to determine whether the High Court adopted a correct interpretation of section 5(1)(a)
and whether the order of the High Court should be upheld. The other important factor
is that , as already stated , the attack s on the Drugs Act and the Extradition Act are
interlinked. A related factor is that as legal and judicial resources have already been
expended on these issues; it is prudent to consider both of them in order finally
determine the proper interpretation of section 5(1)(a).
[49] General principles of extradition in South Africa were laid down in Harksen,21
where this Court said:
21 Harksen v President of the Republic of South Africa [2000] ZACC 29; 2000 (2) SA 825 (CC); 2000 (5) BCLR
478 (CC) (Harksen).
TSHIQI J
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“Where South Africa is bound by an extradition treaty, its terms will govern the
international obligations of this country to the foreign State. Nonetheless, as far as
domestic law is concerned the implementation of those international obligations is
expressly made subject to the provisions of the Act . Similarly, in a non -treaty
extradition, the surrender of the person sought is subject to the requirements of the
Act. In other words, before the person whose extradition is sought may be
surrendered to the foreign State, the procedures prescribed in the Act must be
completed. This includes the arrest of the person under section 5(1), the holding of
an enquiry under section 9(1), and a finding by a magistrate under section 10 that the
evidence is sufficient to make the person liable to surrender. If the magistrate makes
that finding, the Minister of Justice is given a discretion under section 11 to order the
surrender o f the requested person to any person authorised by the foreign State to
receive him or her.”22 (footnotes omitted).
[50] The South African domestic extradition process , therefore, has different phases
as stated in Harksen. The judicial phase encompasses Magistrates’ Court
proceedings. These entail the issue of a warrant by the Magistrate to procure the
presence of the person in respect of whom extradition is sought, to appear before an
extradition enquiry to determine the legal and fac tual basis for extradition. 23 The
political phase requi res the Minister to exercise a discretion in terms of section 11 of
the Extradition Act on whether to surrender the person concerned to the requesting
state. The Minister exercises his dis cretion on whether to surrender the person to the
requesting state only after a Magistrate has made a finding, under section 10, that the
evidence is sufficient to make the person liable to be surrendered.
[51] The applicant challenges the validity of section 5(1)(a) on the ground that the
section deprives the Magistrate of a discretion on whether to issue a warrant. The
applicant argued that under this section, a Magistrate merely rubberstamps the
Minister’s notification, as opposed to exercising discretionary power that enables him
or her to make a value judgment on the issue. For this attack to succeed, two issues
22 Id at para 14.
23 See further Geuking v President of the Republic of South Africa [2002] ZACC 29; 2003 (3) SA 34 (CC); 2004
(9) BCLR 895 (CC).
TSHIQI J
25
must be established. First, it must be shown that section 5(1)(a) not only empower s a
Magistrate to issue a warrant of arrest, but also deprives a Magistrate of the power to
elect not to issue a warrant where a warrant is , in his view, not justified. Second ly,
there must be a section in the Constitution with which section 5(1)(a) is inconsistent.
[52] Therefore, the answer to the question whether section 5(1)(a) is inconsistent
with the Constitution lies primarily in the interpretation of thi s section and the
provision of the Constitution against which section 5(1 )(a) is to be tested. Once the
interpretation process is completed, section 5(1)(a) must be tested against the
provision of the Constitution, to determine whether there is an inconsi stency between
them.
Meaning of section 5(1) of the Extradition Act
[53] As has been repeatedly affirmed by this Court in its jurisprudence, specifically
defined words used in a statutory provision must be given their ordinary meaning. 24
These words must be read in their proper context and in a manner that enables the
provision to achieve its purpose. In Cool Ideas,25 this Court said:
“[A] fundamental tenet of statutory interpretation is that the words in a statute must
be given their ordinary grammatical meaning, unless to do so would result in an
absurdity. There are three important interrelated riders to this general principle,
namely:
(a) that statutory provisions should always be interpreted purposively;
(b) the relevant statutory provision must be properly contextualised; and
(c) all statutes must be construed consistently with the Constitution, that
is, where reasonably possible, l egislative provisions ought to be
interpreted to preserve their constitutional validity. This proviso to
24 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism [2004] ZACC 15; 2004 (4) SA
490 (CC); 2004 (7) BCLR 687 (CC) at para 89.
25 Cool Ideas 1186 CC v Hubbard [ 2014] ZACC 16; 2014 (4) SA 474 (CC); 2014 (8) BCLR 869 (CC) (Cool
Ideas).
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the general principle is closely related to the purposive approach
referred to in (a).”26
[54] Endumeni Municipality reminds us that the process of attributing a meaning to
words used in a statute also involves consideration of the ordinary rules of grammar
and syntax .27 Syntactically, section 5(1) of the Extradition Act consists of one
sentence only. That sentence covers both paragraph (a) and paragraph (b) of the same
Act. The sub -section commences with the empowering part of the provision. This
empowering part makes a wide reference to “any Magistrate” and “any person” .
Taken literally, the reference to any person would be a reference to every individual,
irrespective of whether the person concerned is the subject of an extradition request.
[55] But when the words are read in their proper context, they do not carry such
wide meaning. A warrant of arrest may not be issued arbitrarily agai nst any person;
this would constitute a violation of the fundamental rights guaranteed by the Bill of
Rights, including the right not to be deprived of freedom arbitrarily. Therefore,
section 5(1) may no t be construed as empowering a Magistrate to issue a warrant of
arrest randomly against any person. In the context of the section “any person” carries
a particular meaning.
[56] The true meaning of the words may be gathered from paragraphs (a) and (b) of
the section. To begin with, paragraph ( a) illuminates that “any person” in the opening
phrase of the section refers to a person whose surrender is requested b y a foreign
State. This is apparent from the content of the notification from the Minister to a
Magistrate. Paragraph (a) expressly sta tes that the notification must be “to the effect
that a request for the surrender of such person to a foreign State has been received by
the Minister”. Read in isolation, these words are opaque. Apart from “such person”
which refers back to “any person”, the meaning of paragraph (a) is not readily
26 Id at para 28.
27 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA)
(Endumeni Municipality) at para 18.
TSHIQI J
27
apparent. But a clear and sensible reading of the phrase “any person” in the opening
part of the section is that it refers to the person whose surrender is requested. Implicit
in the language of the paragraph is that the person concerned was identified by the
foreign State which requested his or her surrender. Therefore, in the context of
paragraph (a) “any person” means any person whose surrender is requested by a
foreign State. A Magistrate who receives the notification must thus be satisfied that
the person concerned was so identified by the foreign State.
[57] But what does the phrase “request for surrender of such person to a foreign
State” mean? The meaning of these words, barring “such person”, is not discernible
from the language of paragraph (a) itself. In order to understand what the notification
to the Magistrate is about, one must read section 5(1) together with sections 2, 3 and 4
of the Extradition Act. Section 2 empowers the President of the Republic to conclude
extradition agreements with foreign States, for the surrender on a reciprocal basis of
persons accused or convicted of the commission, either in the Republic or within such
State, of an extraditable offence. 28 Section 3 stipulates that a person accused or
convicted of an extraditable offence under such agreement is liable to be surrendered
in terms of the agreement to the requesting State .29 Section 4 sets out the process that
28 Section 2(1)(a) of the Act above n 2 provides:
“The President may, on such conditions a s he or she may deem fit, but subject to the
provisions of this Act
(a) enter into an agreement with any foreign State, other than a designated State,
providing for th e surrender on a reciprocal basis of persons accused or convicted of
the commission with in the jurisdiction of the Republic or such State or any territory
under the sovereignty or protection of such State, of an extraditable offence or
offences specified i n such agreement and may likewise agree to any amendment or
revocation of such agreement; and
(b) designate any foreign State for purposes of section 3 (3), and may at any time amend
the conditions to which such designation was subjected to or revoke such
designation.”
29 Id section 3(1) reads:
“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 f or
such offence.”
TSHIQI J
28
must be followed in making a request for a surrender of a person liable to be
extradited.30
[58] These provisions undoubtedly clarify what a request for surrender means and
why the request is directed to the Minister. In addition, sections 5 to 10 of the
Extradition Act address the role played by the Magistrate in the extradition process.
[59] Paragraph (b) too qualifies the wide meaning of “any person” in the opening
part of section 5(1). It describes that person a s one who is accused or convicted of an
extraditable offence that was committed in a foreign State. In addition to this
description, paragraph (b) requires the Magistrate to hold an opinion that , had the
offence been committed in the Republic, the issue o f a warrant of arrest would have
been justified.
[60] It is evident from the text of both paragraphs that the purpose they serve is
twofold. First, they identify the person against whom the Magistrate may issue a
warrant. Second, they set the conditions that must exist before a warrant is authorised.
With regard to paragraph (a) , there must be a notification from the Minister.
Implicitly, this notification must specify the identity of the person to be surrendered
and information on the liability of such person to be surrendered.
[61] In relation to paragraph (b), informati on on the person to be surre ndered must
be accompanied by the Magistrate’s opinion on the justification for the issue of a
30 Id section 4 provides:
“(1) Subject to the terms of any extradition agreement any request for the surrender of any person
to a foreign State shall be made to the Minister by a person recognized by the Minister as a
diplomatic or consular representativ e of that State or by any Minister of that State
communicating with the Minister through diplomatic channels exis ting between the Republic
and such State.
(2) Any such request received in terms of an extradition agreement by any person other than the
Minister shall be handed to the Minister.
(3) The provisions of subsections (1) and (2) do not apply in respect of a r equest for the
endorsement for execution of a warrant of arrest under section six.”
TSHIQI J
29
warrant. These may be appropriately described as jurisdictional factors that must be
in place before the power to issue a warrant is exercised.
[62] Importantly, that power does not flow from the wording of the two p aragraphs.
These paragraphs do not constitute empowering provisions. The source of the power
to issue a warrant is the phrase “any Magistrate may . . . issue a warrant for the arrest
of any person”, regardless of whether the warrant is issued under pa ragraph (a) or (b).
This phrase carries the same meaning irrespective of the paragraph under which the
power is exercised because the words used in the phrase bear their ordinary meaning,
which does not vary based on the applicable paragraph.
[63] It is an established principle of our law that “the same words in the same statute
bear the same meaning”. 31 This principle applies with greater force where the words
appear in the same sentence.32 Where the same word is repeated in different parts of a
statute, the presumption is that it bears the same meaning throughout the statute,
unless there is a clear indication that it is used in a different sense .33 But the latter
principle finds no application here because the words employed in the empowering
provision are not repeated in the paragraphs. They are used only once. This forti fies
the proposition that they carry the same meaning whether they apply to paragraph (a)
or (b).
[64] The principles mentioned here were affirmed by this Court in more than one
decision.34 In Hoërskool Ermelo ,35 Moseneke DCJ affirmed the principle s in these
terms:
31 See Minister of Interior v Machadodorp Investments 1957 (2) SA 395 (A) at 404D -E (Minister of Interior )
and Head of Department, Mpumalan ga Department of Education v Hoërskool Ermelo [2009] ZACC 32 ; 2010
(2) SA 415 (CC); 2010 (3) BCLR 177 (CC) (Hoërskool Ermelo) at para 70.
32 Minister of Interior id at para 404D-E.
33 Chagi v Singisi Forset Products [2007] ZASCA 63; 2007 (5) SCA 513 at para 13.
34 City of Johannesburg Metropolitan Municipality v Gauteng Developm ent Tribunal [2010] ZACC 11; 2010 (6)
SA 182 (CC); 2010 (9) BCLR 859 (CC) at para 52.
35 Hoërskool Ermelo above n 31.
TSHIQI J
30
“[P]recepts of statutory interpretation suggest that the word ‘function’ should have
the same meaning wherever it occurs in the statute since there is a ‘reasonable
supposition, if not a presumption ’ that ‘the same words in the same statute bear the
same meaning’ throughout the statute.”36
[65] Here, there can be no legal justification for reading the words “any Magistrate
may . . . issue a warrant” as conferring a discretion in relation to paragraph (b) and not
in respect of paragraph (a). These words are clearly permissi ve. They mandate a
Magistrate to issue a warrant under specified circumstances. The paragraphs deal
with different circumstances under which a warrant may be issued. But the power to
issue the warrant remains the same.
[66] Although the language used in a statutory provision may reasonably bear more
than one meaning, once a court of law has declared what the provision means, it
carries only that meaning, regardless of the circumstances and the facts of a particular
case. Thi s is because facts play no role in an interpretation process , which entails
giving meaning to the words used in a statute .37 There is nothing in the relevant
paragraphs which suggest s that the phrase “any Magistrate may. . . issue a warrant”
should be construed differently, depending on the paragraph to which it applies at a
given time.
[67] What is apparent from a perusal of the entire section 5(1) is that it confers the
same power on the Magistrate, to be exercised either under paragraph (a) or (b).
These paragraphs depict different p rocesses leading up to the issuing of a warrant.
Under paragraph (a), the process before the Magistrate is initiated by the Minister who
delivers a notification. In terms of paragraph (b), it is not clear from section 5(1) who
initiates the process and whether the Magistrate acts of his or her own accord. The
36 Id at para 70.
37 Kubyana v Standard Bank of South Africa Ltd [2014] ZACC 1; 2014 (3) SA 56 (CC); 2014 (4) BCLR 400
(CC) at para 78.
TSHIQI J
31
section does not explain how the information on the person who is accused or
convicted of an extraditable offence is placed before a Magistrate.
[68] What distinguishes paragraph (a) from (b) is the process to be followed under
each paragraph and the conditions which must be present before a warrant is issued .
In the case of paragraph (b), the additional distinguishing factor is that a Magistrate
who has issued a warrant is obliged to forthwith furnish the Minister with particulars
relating to the issue of the warrant. And the Minister may overrule the Magistrate and
direct him or her to cancel the warrant and release the arrested person forthwith. The
Minister is empowered to do this for any reason that the Minister deems fit.38
[69] Apart from these distinguishing features, what is also c lear from the language
of section 5(1) is the nature of the power bestowed upon Magistrates. Its nature may
be determi ned only with reference to the words “any Magistrate may . . . issue a
warrant”. Having settled the question whether the same power appli es to both
paragraphs, it is necessary to ascertain its nature. Evidently, the empowering
provision uses permissive language to the effect that a Magistrate may issue a warrant.
It is a settled principle of our law that the use of permissive language sig nifies
conferral of a discretion to do or not to do what is stipulated in the provision.39
38 Section 8 of the Act provides:
“(1) Any magistrate who, under paragraph (b) of subsection (1) of section five or under
section seven, issues a warrant for the arrest or further detention of any person other
than a person alleged to have committed an offence in an associated State, shall
forthwith furnish the Minister with particulars relating to the issue of such warrant.
(2) The Minister may at any time after having been notified that a warrant has been
issued as contemplated in subsection (1)—
(a) in the case where the warrant has not yet been executed, direct the
magistrate concerned to cancel the warrant; or
(b) in the case where the warrant has been executed, direct that the person who
has been arrested be discharged forthwith, if the Minister is of the opinion
that a request for the extradition of the person concerned is being delayed
unreasonably, or for any other reason that the Minister may deem fit.”
39 See Schwartz v Schwartz 1984 (4) SA 467 (A); and South African Railways and Harbours v Transvaal
Consolidated Land and Exploration Co Ltd 1961 (2) SA 467 (A).
TSHIQI J
32
[70] This principle was affirmed by this C ourt in South African Police Service.40 In
that case, this Court formulated the principle thus:
“It follows, then, that subject to the qualification mentioned below, ‘may’ in the
context of this case does not mean ‘must’. The c ommissioner has a discretion and is
accordingly entitled to make a declaration that although he is authorised without
advertising to promote an incumbent whose job is upgraded, he is not obliged to do
so.”41
[71] This principle finds application in the present matter. Although the Magistrate
is authorised to issue a warrant upon receipt of a notification from the Minister to the
effect that a request for the surrender of a person has been received from a foreign
State, the Magistrate is not obliged to do so. This is reinforced by the Bill of Rights ,
which obliges the State in all its manifestations to “respect, protect, promote and fulfil
the rights in the Bill of Rights”.42 Moreover, the Bill of Rights binds all arms of the
State, including the Judiciary .43 This means that when a Magistrate exercises the
power conferred by section 5(1), the Magistrate is obliged to do so in a manner that
promotes the rights in the Bill of Rights, including the right not to be deprived of
freedom arbitrarily. Consequently, section 5(1) of the Extradition Act cannot be
assigned a meaning that authorises arbitrary deprivation of freedom.
[72] Moreover, reading legislation in a manner that promotes rights guaranteed in
the Bill of R ights is also prescribed by section 39(2) of the Constitution .44 This
provision obliges courts to promote the spirit, purport and objects of the Bill of Rights
40 South African Police Service v Public Servant s Association [2006] ZACC 18; 2007 (3) SA 521 (CC); [2007]
5 BLLR 383 (CC).
41 Id at para 35.
42 Section 7(2) of the Constitution.
43 Section 8(1) of the Constitution provides:
“The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all
organs of state.”
44 Section 39(2) of the Constitution provides:
“When interpreting any legislation, and when developing common law or customary law, every court,
tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”
TSHIQI J
33
when interpreting legislation. But this interpretati ve aid is not without limits. The
language of the provision under construction must reasonably be capable of a meaning
that promotes the objects of the Bill of Rights.45
[73] The question that arises on this aspect of the matter is whether section 5(1)(a) is
reasonably capable of being read in a manner that is constitutionally compli ant. At
the outset, I must point out though that the words “any Magistrate may . . . issue a
warrant” do not oblige a Magistrate to issue the warrant. On the basis of these words
alone, the Magistrate has a discretion to issue or not to issue a warrant. The real issue
is whether when these words are read together with paragraph (a), they authorise the
Magistrate to issue a warrant purely upon receipt of a notification from the Minister
and without first satisfying himself or herself that the person concerned is indeed
liable to be surrendered to the requesting foreign State. A literal reading of section
5(1) suggests th at under paragraph (a) , as soon as the Magistrate receives the
Minister’s notification, he or she may issue a warrant. In other words, the only
condition to be satisfied is receipt of the notification. Such a literal reading suggests
that the Magistrate would close his or her eyes regarding whether the person
concerned was identified by the foreign State as being liable to be surrendered.
[74] This is not how section 5(1)(a) should be read in view of its impact on the right
not to be arbitrarily deprived of freedom. Although the section does not expressly say
so, it must, under section 39(2) of the Constitution, be read as if it requires the
Magistrate to be satisfied, before authorising a warrant, that the person to be arrested
is indeed liable to be surrendered. This interpretation of the section does not only
avoid arbitrary deprivation of freedom , but also promotes the attainment of the
purpose of the Extradition Act. As I will illustrate shortly, this interpretative approach
is entrenched in our jurisprudence.
45 Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd : In Re Hyundai
Motor Distributors (Pty) Ltd v Smit N .O. [2000] ZACC 12; 2001 (1) SA 545 (CC); 2000 (10) BCLR 1079 (CC)
at paras 21 and 26.
TSHIQI J
34
[75] To demonstrate the point, a reference to cases interpreting section 50(1) of the
Prevention of Organised Crime Act46 (POCA) would suffice. Section 50(1)(a) and (b)
of POCA provides:
“The High Court shall , subject to section 52, make an order applied for under
section 48(1) if the Court finds on a balance of probabilities that the property
concerned—
(a) is an instrumentality of an offence referred to in Schedule 1;
(b) is the proceeds of unlawful activities.”
[76] With regard to the correct approach to interpreting section 50(1) of POCA, this
Court in Prophet47 said:
“Asset forfeiture orders as envisaged under Chapter 6 of the POCA are inherently
intrusive in that they may carry dire consequences for the owners or possessors of
properties, particularly residential properties. Courts are therefore enjoined by
section 39(2) of the Constitution . . . to interpret legislation such as the P OCA in a
manner that ‘promote(s) the spirit, purport and objects of the Bill of Rights’, to ensure
that it s provisions are constitutionally justifiable, particularly in the light of the
property clause enshrined in terms of section 25 [of] the Constitution.”48
[77] This approach was later affirmed in Mohunram.49 In th at matter, Moseneke
DCJ stated:
“It is indeed so that section 50(1) is couched in peremptory term s. It provides that a
court “shall” make a forfeiture order if it finds on the civil standard of balance of
probabilities that the property sought to be forfeited is an instrumentality of an
offence. Textually, once the instrumentality threshold has been met, courts must
authorise forfeiture. However, courts have consistently interpreted “shall” to mean
46 121 of 1998.
47 Prophet v National Director of Public Prosecutions [2006] ZACC 17; 2007 (6) SA 169 (CC); 2007 (2) BCLR
140 (CC).
48 Id at para 46.
49 Mohunram v National Director of Public Prosecutions (Law Review Project as Amicus Curiae) [2007] ZACC
4; 2007 (4) SA 222 (CC); 2007 (6) BCLR 575 (CC).
TSHIQI J
35
“may”. They have correctly held all requests by state prosecutors for civil forfeiture
to the standard of proportionality which amounts to no more than t hat the forfeiture
should not constitute arbitrary deprivation of property or the kind of punishment not
permitted by section 12(1)(e) of the Constitution.”50
[78] This statement makes it clear that provisions which may be read as authorising
arbitrary deprivation of property should not be construed literally. But the reference
to section 12 of the Constitution is of more importance . This section guarantees,
among other rights, the right not to be arbitrarily deprived of freedom. It is plain from
Mohunram that provisions like section 5(1)(a) are not to be construed literally and that
they should be read in a manner that avoids arbitrary deprivation. Therefore, a
Magistrate may not approach the matter on the footing that notification fr om the
Minister has been received and proceed to issue the warrant. He or she must also
determine whether the warrant to be issued would arbitrarily deprive the arrested
person of his or her freedom. If it would, the Magistrate would not be authorised to
issue the warrant, just as the High Court may not make a forfeiture order in terms of
section 50(1) of the POCA, if such forfeiture would amount to arbitrary deprivation of
property or a cruel, in humane or degrading punishment, even if the State adduced
evidence that the property concerned was used as an instrumentality of an offence or if
it is proceeds of unlawful activities.
[79] In other words, proof of jurisdictional factors mentioned in the provision is not
enough for purposes of exercising power that may lead to arbitrary deprivation. In
these circumstances , I conclude that section 5(1)(a) is reasonably capable of a
meaning that is constitutionally compliant. It follows that the sectio n is not
inconsistent with section 12 of the Constitution. It does not authorise arbitrary issue
of warrants by Magistrates. The fact that the repository of the power to issue a
warrant is a member of the Judiciary supports the proposition that the power is
50 Id at para 121.
TSHIQI J
36
discretionary and that a warrant w ould not be justified if the arrest would be arbitrary.
That is why Parliament has designated Magistrates as repositories of the power.
[80] But the applicant's attack against s ection 5(1)(a) was not based only on
section 12 of the Constitution. The applicant contended that the section was
inconsistent with the Constitution because the Magistrate enjoys no discretion but
simply rubber -stamps the Minister’s notification. It was submitted that this
undermines judicial independence. The premise from which this argument departs is
flawed; section 5(1)(a) does not deprive the Magistrate of discretion. It merely sets
out a condition which must exist before the power to issue a warrant may be
exercised. The laying down o f that condition does not, of itself, mean that on ce the
condition is established the Magistrate is obliged to issue a warrant. H e or she is not.
A warrant may be issued only if , in the opinion of the Magistrate, to do so is justified.
The need for the Magistrate to be satisfied whether or not a warrant is justified is what
is required by the Bill of Rights that binds all organs of state, including the Judiciary.
[81] This interpretation of section 5(1)(a) is further supported by the fact that
section 5(2) of the Extradition Act requires that any warrants issued under section 5(1)
be in the form and executed in a manner as near as possible to that which may be
prescribed in respect of warrants of arrest in general by , or under , the laws of the
Republic relating to criminal procedure . The reference to “[a]ny warrant issued in
terms of this section” is a reference to warrants issued in terms of both section 5(1)(a)
and (b). The issuing of warrants relating to criminal p rocedure in the Republic is
governed by section 43 of the Criminal Procedure Act 51 (CPA). Before a warrant is
executed, it needs to be issued by a Magistrate. Before it is issued, section 43(1)(a) of
the CPA52 requires that the Magistrate receives a written application from a Director
51 51 of 1977.
52 Section 43 of the Criminal Procedure Act states:
“Warrant of arrest may be issued by magistrate or justice—
TSHIQI J
37
of Public Prosecutions, a public prosecutor or a commissioned police officer “setting
out the offence alleged to have been committed”. 53 Section 43(1)(c) of the CPA states
that the written application should state under oath that “there is a reasonable
suspicion that the person in respect of whom the warrant is applied for has committed
the alleged offence”. Section 43(2) of the CPA requires that the alleged offence be
stated in the warrant of arrest. It can be safely inferred from the need for submission
of a written application and the fact that the information envisaged in section 43(1)(a) -
(c) and (2) is placed before the Magistrate, that a Magistrate is required to consider the
application together with the information and decide whether or not to issue a warrant.
This is the information that is incorporated in to the warrant in order to complete it
before it is issued. The reference to “any warrant” in section 5(2) must be a reference
to a duly completed warrant and not a blank pro -forma. If it were a reference to the
latter, it would mean that the Magistrate is required to append his or her signature and
stamp to a blank pro-forma in the hope that someone else will complete the full details
correctly later. This cannot be. A consideration of an application before the issuing
Any magistrate or justice may issue a warrant for the arrest of any person upon the
written application of an attorney -general, a public prosecutor or a commissioned
officer of police—
(a) which sets out the offence alleged to have been committed;
(b) which alleges that such offence was committed within the area of
jurisdiction of such magistrate or, in the case of a justice, within the area of
jurisdiction of the magistrate within whose district or area application is
made to the justice for such warrant, or where such offence was not
committed within such area o f jurisdiction, which alleges that the person in
respect of whom the application is made, is known or is on reasonable
grounds suspected to be within such area of jurisdiction; and
(c) which states that from information taken upon oath that there is a reas onable
suspicion that the person in respect of whom the warrant is applied for has
committed the alleged offence.”
53 See Minister of Safety and Security v Sekhoto [2010] ZASCA 141; 2011 (5) SA 367 (SCA) at para 23 where
the following was mentioned:
“It may be convenient t o interpose a further mention of section 43. As said, it deals with the
issue of a warrant for arrest upon the written application of a Director of Public Prosecution, a
public prosecutor or a commissioned officer of police. The further jurisdictional fa cts for the
warrant are that the application must set out (i) the offence alleged to have been committed
(which need not be a Schedule 1 offence); (ii) that the offence was committed within the area
of jurisdiction of the magistrate, or that the suspect is known or is on reasonable grounds
suspected to be within such area of jurisdiction; and (iii) that from information taken upon
oath there is a reasonable suspicion that the suspect has committed the alleged offence.”
TSHIQI J
38
of a warrant in the form prescribed in terms of the criminal procedure is not a mere
mechanical process. It requires the Magistrate to apply his or her mind to it.
[82] In extradition matters , there are two possible sources of the information that
must be incorporated into the warrant: the notification and the request for extradition.
The Act does not prescribe what the notification from the Minister should contain. In
Kouwenhoven,54 the section 5(1)(a) notification signed by the Minister stated:
“I . . . give notice under section 5(1)(a) of the Extradition Act . . . that I have received
a request for the surrender of [the applicant] from the Republic of South Africa to The
Netherlands to serve a term of nineteen years imprisonment imposed upon conviction
of three charges of contrav ening article 8 of the War Crimes Act and two charges of
contravening article 2, paragraph 2 of the Sanctions Act, 1977.”55
In the present matter, although the warrant was issued in terms of section 5(1)(b) , it
was issued pursuant to a notification from the Minister after a request was sent to him
by the UK in terms of section 4 of the Extradition Act. We know that the information
contained in the warrant was sourced from the request from the UK which was
accompanied by the affidavits of Police Constable Wilde and Ms Allison Claire Riley,
a barrister and crown advocate with the Crown Prosecution Services of England and
Wales. These kind of documents, to my mind will inevitably be the source of the
information which will find itself in a ny warrant t o be issued in terms of
section 5(1)(a) of the Extradition Act.
[83] The requirement that the notification be sent to the Magistrate can only mean
that it is submitted to him or her to consider it by applying his or her mind to the
information contained in the request for extradition before issuing the warrant . This
includes satisfying himself or herself that the offence alleged to have been committed
54 Kouwenhoven v Minister of Police 2019 JDR 1782 (WCC).
55 Id at para 100.
TSHIQI J
39
has been set out as required in terms of section 43(1)(a) of the CPA ; that the warrant
contains certain allegations regarding the area of j urisdiction in terms of
section 43(1)(b); in extradition proceedings this means that the allegation must be that
the person is within the bo rders of S outh Africa ; and that “ there is a reasonable
suspicion that the person in respect of whom the warrant is applied for has committed
the alleged offence” as required in terms of section 43(1)(c) of the CPA.
[84] The deprivation of freedom contemp lated in the Extradition Act is both
substantively and procedurally fair. South Africa is a signatory to the Multilateral
European Convention on Extradition and has , pursuant to section 231(2) of the
Constitution, an international obligation to co -operate with state signatories, including
the UK. The scheme of the Extradition Act is such that there are appropriate
safeguards for the person who is the subject of an extradition request.
[85] One of the criticisms this Court made against section 34 of the
Immigration Act56 in Lawyers for Human Rights 57 was that the section did not require
that a detainee be informed of the rights enumerated in section 35(2) of the
Constitution, apart from being told of the reason for detention. The Court said—
“[s]ignificantly, section 34(1)(b) does not require an aut omatic judicial review of a
detention before 30 calendar days expire. It merely grants a detainee the right to
request an immigration officer to cause the detention to be confirmed by a warrant of
a court. Such warrant may be obtained only during the cur rency of the detention and
at the instance of the immigration officer. The nature and scope of the information to
be placed before the court is to be determined by the immigration officer. The
provision does not allow the detainee to make any representat ions to the court, either
orally or in writing. Nor does it permit him or her to appear in person.”58
56 13 of 2002.
57 Lawyers for Human Rights v Minister of Home Affairs [2017] ZACC 22; 2017 (5) SA 480 (CC); 2017 (10)
BCLR 1242 (CC) at para 51.
58 Id at para 52.
TSHIQI J
40
[86] In this matter , it is accepted that the issuing of the warrant deprived the
applicant of his freedom. The next consideration is whether there is just cause for this
deprivation and whether there are constitutionally acceptable reasons that reveal a
rational connection between the detention and an objectively determinable and
legitimate purpose for it . It is not disputed that the warrant was issued pursuant to a
request from the UK and concerned pending criminal proceedings against the
applicant relating to the Misuse of Drugs Act in that country. The conten ts of the
affidavits by Police Constable Steven John Wilde and Ms Allison Claire Riley ,
regarding the applicant’s arrest and pending criminal charges are not placed in
dispute. What the applicant has denied is the contravention of the Misuse of Drugs
Act. Regarding the manner in which the warrant was issued, it is uncontroverted that
the Magistrate issued it after forming an opinion, based upon information placed
before him, that it could be issued. This shows that the Magistrate considered the
information placed before him before forming the opinion to issue the warrant. There
was thus no infringement of the right not to be deprived of freedom arbitrarily or
without just cause as envisaged in section 12(1)(a) of the Constitution.
[87] The Extradition Act has safeguards that apply after the arrest of the person,
which are in line with those highlighted in Lawyers for Human Rights.59 They include
a right to be released on bail, as was the case in this matt er and for the person to be
brought before the Magistrate as soon as possible for the holding of an enquiry in
terms of section s 9 and 10. Significantly in terms of section 10(1) , the Magistrate
must satisfy himself or herself whether there is sufficient evidence to warrant an order
committing the person to prison awaiting the Minister’s decision with regard to his or
her surrender. Additionally, the Magistrate is required to inform the person of the
right to appeal. Section 10(3) provides that if the Magistrate finds that the evidence
does not warrant the issue of the order of committal, or that the evidence is not
forthcoming within a reasonable time, he or she shall discharge the person. Section 11
deals with the powers of the Minister to eith er order or refuse the surrender of a
59 Lawyers for Human Rights above n 57.
TSHIQI J
41
person to a foreign State after he or she has been committed to prison following an
enquiry held by a Magistrate in terms of section 10. Whilst section 10 deals with the
conduct of an enquiry where the offence is alleged to have been committed in a
foreign State, section 12 deals with the factors to be considered by a Magistrate when
conducting an enquiry, where the offence was alleged to have been committed in an
associated State.60 Section 12(3) is worded similarly to section 10(3).
[88] In Harksen,61 this Court stated that before the person whose extradition is
sought may be surrendered to the foreign State, the procedures prescribed in the
Extradition Act must be completed. 62 This, as already alluded to, includes the arrest
of the person under section 5(1), the holding of an enquiry under section 9(1), and a
finding by a Magistrate under section 10 that the evidence is sufficient to render the
person liable to surrender. If the Magistrate makes that finding, the Minister has a
discretion under section 11 to order the surrender of the requested person to any
person authorised by the foreign State to receive him or her. The purpose of section
5(1) of the Extradition Act is thus to trigger the necessary procedural safeguard s,
which are initially undertaken by t he Magistrate, before the Minister can proceed to
the final step and exercise his political discretion under section 11 on whether to
surrender the requested person to the foreign State.
Can the applicant rely on the Prince judgment?
[89] The applicant’s reliance on Prince is misplaced for two reasons:
(a) In Prince, this Court declared the provisions of the Drugs Act read with
Part III of Schedule 2 to that Act invalid to the extent that they make the
use or possession of cannabis by an adult person fo r his or her own
consumption in private a criminal offence. In this matter , the allegation
60 Associated State refers to certain foreign States in Africa.
61 Harksen above n 21.
62 Id at para 4.
TSHIQI J
42
is that the applicant is facing charges of possession of cannabis with
intent to supply. This is still an illegal act in South Africa. The double
criminality rule has thus been satisfied.
(b) The order in Prince is effective from 18 September 2018. It is not
retrospective. According to Patel, “the double criminality rule must be
satisfied as at the date of request for the extradition” .63 In this case, the
extradition request was made in or around May 2011 and the warrant of
arrest was issued on 11 August 2011 , on which date the double
criminality rule was evidently satisfied . During argument in this Court,
counsel for the applicant was constrained to concede that there is no
challenge to Patel.
[90] It follows that the contention by the applicant that the double criminality
requirement has not been met, must be rejected.
Conclusion
[91] The direct appeal against the order of the High Court where it refused to
declare section 5(1)(a) of the Extradition Act inco nsistent with the Constitution must
fail. As stated above, the declaration by the H igh Court that section 63 of the
Drugs Act is inconsistent with the Constitution and invalid should be confirmed. 64
Only those amendments effected to the Schedules to the Drugs Act in terms of
section 63 are invalid. The warrant issued by the Magistrate stands, as conceded by
the applicant.
63 Patel v National Director of Public Prosecutions [2016] ZASCA 191; 2017 (1) SACR 456 (SCA) at para 40.
64 See [39] above.
TSHIQI J
43
Prospective operation and suspension
[92] The Minister has submitted that in the event that this Court confirms the
constitutional invalidity of section 63 of the Drugs Act and all the amendments to the
Schedules made in terms thereof, this Court should grant an order in terms of
section 172(1)(b)(i) of the Constitution to the effect that the de claration of
unconstitutionality will operate prospectively.
[93] Since the enactment of the Drugs Act, the Minister has exercised the powers
conferred by section 63 of the Drugs Act in good faith so as to ensure the control of
Scheduled substances. More specifically, one of the objects of the Drugs Act is to
protect the welfare of the public and to prevent the use, possession and dealing in
undesirable dependence producing substances in uncontrolled circumstances. If
section 63 of the Drugs Act is declared unconstitutional and invalid with retrospective
effect, the result will be the setting aside of all the amendments to the Schedules
thereunder. Any such retrospective invalidation would be inimical to the public
interest, to the inte rests of proper administration, and in relation to concluded
prosecutions for contraventions of sections 4(b) and 5(b) of the Drugs Act. It will also
result in a disruption in the prosecution of suspected offenders.
[94] Regarding suspension, the Ministe r has urged this Court to suspend the
declaration of invalidity for a period of 24 months to avoid a lacuna (gap) and to
allow Parliament to correct the defect . It is not disputed that a period of 24 months
will be adequa te for this process . Good cause has been shown for the granting of a
prospective order and for the suspension of the order to afford Parliament an
opportunity to cure the defect.
Costs
[95] Regarding costs, as the High Court reasoned, both parties had a measure of
success in the matter and as the applicant had raised important issues of law,
especially in relation to the Drugs Act, the Biowatch principle should apply, even
TSHIQI J
44
though the limited finding in favour of the applicant did not provide any form of relief
for him. An appropriate costs order in this Court is that each party should pay its own
costs and the costs order in the High Court should remain.
Order
[96] I would have made the following order:
1. The declaration of invalidity made by the High Court of South Africa,
Western Cape Division, Cape Town is confirmed in the terms set out in
paragraph 2.
2. Section 63 of the Drugs and Drug Trafficking Act 140 of 1992 is
declared to b e inconsistent with the Constitution and invalid to the
extent that it purports to delegate plenary legislative power to amend
Schedules 1 and 2 to the Drugs and Drug Trafficking Act to the Minister
of Justice and Correctional Services.
3. The following purported amendments to Schedules 1 and 2 to the Drugs
and Drug Trafficking Act are declared invalid:
(i) GN R1765 of 1 November 1996, which amended Part III of
Schedule 2;
(ii) GN R344 of 13 March 1998, which amended Part I and II of
Schedule 1;
(iii) GN R760 of 11 June 1999, which amended Part I, II and III of
Schedule 2;
(iv) GN R521 of 15 June 2001, which amended Part I of Schedule 1
and Part I, II, and III of Schedule 2;
(v) GN R880 of 8 October 2010, which amended Part II of
Schedule 1; and
(vi) GN R222 of 28 March 2014, which amended Part I, II, and III of
Schedule 2.
4. The declarations of invalidity in paragraphs 1, 2 and 3 of the order take
effect from the date of this order.
TSHIQI J / MADLANGA J
45
5. The order of invalidity is suspended for a period of 24 months to allow
Parliament to cure the defect.
6. The application for leave to appeal directly to this Court is granted.
7. The appeal against the order of the High Court in terms of which it
refused to declare all the Schedules to the Drugs and Drug Trafficking
Act invalid, but only the amendments to Schedules 1 and 2 of the Drugs
and Drug Trafficking Act, effected in terms of section 63 , as invalid is
dismissed.
8. The appeal against the order of the High Court dismissing the
application to declare the provisions of section 5(1)(a) of the Extradition
Act 67 of 1962 to be inconsistent with the Constitution is dismissed.
9. Each party must pay its own costs.
MADLANGA J ( Mogoeng CJ, Khampepe J, Majiedt J, Mathopo AJ and Theron J
concurring):
[97] I have had the benefit of reading the judgment penned by my colleague,
Tshiqi J (first judgment). I agree with my colleague’s conclusions that: section 63 of
the Drugs Act is inconsistent with the Constitution to the extent that it purports to
delegate to the Minister the plenary legislative power to amend Schedules 1 and 2 to
the Drugs Act ; only the amendments to the Schedules listed in paragraph 3 of the
order in the first judgment are invalid; the applicant cannot rely on the Prince
judgment to escape extradition; the declaration of constitutional invalidity must be
prospective; this declaration must be suspended for 24 months; and the warrant issued
for the arrest of the applicant is, in fact, valid. What I do not agree with is the
dismissal of the applicant’s appeal against the High Court’s dismissal of the
application to d eclare section 5(1)(a) of the Extradition Act inconsistent with the
Constitution.
MADLANGA J
46
[98] There are two central questions in this appeal. The first is whether section
5(1)(a) impermissibly limit s the right to freedom and security of the person, more
specifically the right not to be deprived of freedom arbitrarily or without just cause.
The second is whether – based on the Heath test on functions performed by Judicial
Officers outside of court – the function a Magistrate is required to perform under
section 5(1)(a) is compatible with the judicial office. 65 This is a separation of powers
issue.
[99] I will first look at the right not to be deprived of freedom arbitrarily or without
just cause protected by section 12(1)(a) of the Constitution. This right falls under the
umbrella category of the right to freedom and security of the person guaranteed in
section 12(1).66 Although all the rights contained in paragraphs (a) to (e) of
section 12(1) fall under one category, they each constitute distinct rights which are
capable of individual, self -contained violation. Although some may be inter -related,
that does not detract from their separateness. For example, there is a close link
between arres t and detention; the first generally leads to the second and each
constitutes a deprivation of freedom. But that does not make them the same, nor does
it alter the fact that each may stand on its own. One individual may allege only that
the law in terms of which an arrest is effected is unconstitutional. Another may assert
only that the law authorising the detention, post arrest, is inconsistent with the
Constitution. The complaint – whether about arrest or detention – may also be
directed at conduct, not necessarily law.
65 South African Association of Personal Injury Lawyers v Heath [2000] ZACC 22; 2001 (1) SA 883 (CC); 2001
(1) BCLR 77 (CC) at para 34.
66 Section 12(1) provides:
“Everyone has the right to freedom and security of the person, which includes the right —
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading way.”
MADLANGA J
47
[100] Here our focus is a challenge to the constitutionality of the power conferred on
a Magistrate by section 5(1)(a) of the Extradition Act to authorise an arrest. That is
not concerned with the detention that follows the arrest.
[101] The right not to be deprived of freedom arbitrarily or without just cause
protected by section 12(1)(a) of the Constitution has two facets67 – i.e. substantive and
procedural facets. In Boesak Langa DP said that “[t]his Court has held that
section 12(1)(a) entrenches two different aspects of the right to freedom, the
substantive and the procedural”.68
[102] Both facets have to be satisfied for a deprivation of freedom not to be
inconsistent with section 12(1)(a). Let me start with the substantive facet. In
Bernstein O’Regan J said that the substantive facet relates to the grounds for the
deprivation of freedom; “the deprivation of freedom will not be constitutional [if] the
grounds upon which freedom has been cu rtailed are unacceptable”. 69 In similar vein,
in De Lange Ackermann J said that “[t]he substantive aspect ensures that a deprivation
of liberty cannot take place without satisfactory or adequate reasons for doing so”.70
[103] Without doubt, an arrest under section 5(1)(a) constitutes a deprivation of
freedom and thus implicates the right not to be deprived of freedom arbitrarily or
without just cause. The question is: does this section satisfy the test for the
substantive facet of the section 12(1)(a) right? Section 5(1) of the Extradition Act
provides:
67 See Zealand v Minister of Justice and Constitutional Development [2008] ZACC 3; 2008 (4) SA 458 (CC);
2008 (6) BCLR 601 (CC) at para 33 ; S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC); 2001 (1) BCLR 36
(CC) at para 37; De Lange v Smuts N,O, [ 1998] ZACC 6; 1998 (3) SA 785; 1998 (7) BCLR 779 (CC) at paras
22-5; Sibiya v Director of Public Prosecutions, Johannesbur g [2005] ZACC 6; 2005 (5) SA 315 (CC); 2005 (8)
BCLR 812 (CC) at para 32; and Lawyers for Human Rights above n 57 at para 32.
68 Boesak id at para 37. See also Zealand id at para 33.
69 Bernstein v Bester N.O. [1996] ZACC 2; 1996 (2) SA 751 (CC); 1996 (4) BCLR 449 (CC) at para 145.
Ackermann J endorsed this in De Lange above n 67 at para 17.
70 De Lange id at para 23.
MADLANGA J
48
“(1) Any M agistrate may, irrespective of the whereabouts or suspected
whereabouts of the person to be arrested, issue a warrant for the arrest of any
person—
(a) upon receipt of a notification from the Minister to the effect that a
request for the surrender of su ch person to a foreign State has been
received by the Minister; or
(b) upon such information of his or her being a person accused or
convicted of an extraditable offence committed within the
jurisdiction of a foreign State, as would in the opinion of the
Magistrate justify the issue of a warrant for the arrest of such person,
had it been alleged that he or she committed an offence in the
Republic.”
[104] I think the substantive facet is satisfied. That is so because the need to arrest
for purposes of extr aditing in fulfilment of the Republic’s international obligation to
extradite (where appropriate) does provide “acceptable”, “satisfactory” or “adequate
reasons” for depriving the person concerned of freedom. The need to extradite stems
from considerations of reciprocity and comity amongst nations. This is explained thus
by Goldstone J in Geuking:
“The need for extradition has increased because of the ever -growing frequency with
which criminals take advantage of modern technology, both to perpetrate seri ous
crime and to evade arrest by fleeing to other lands. The government of the country
where the criminal conduct is perpetrated will wish the perpetrator to stand trial
before its courts and will usually offer to reciprocate in respect of persons similar ly
wanted by the foreign State. Apart from reciprocity, governments accede to requests
for extradition from other friendly States on the basis of comity.
Furthermore,
governments do not wish their own countries to be, or be perceived as safe havens for
the criminals of the world.”71
71 Geuking above n 23 at para 2.
MADLANGA J
49
[105] The procedural facet “requires that no -one be deprived of physical freedom
unless fair and lawful procedures have been followed”. 72 And that is so e ven in
instances where there is no fair procedure expressly prescribed by the Constitution on
the manner of deprivation of freedom. 73 The procedure will be fair if there is the
“interposition of an impartial entity, independent of the Executive and the Legislature
to act as an arbiter between t he individual and the State”. 74 And in Lawyers for
Human Rights Jafta J said “[i]mplicit in the procedural aspect of the right is the role
played by courts. Judicial control or oversight ensures that appropriate procedural
safeguards are followed.” 75 This, of course, excludes instances which – although
there is no involvement of the Judiciary – are reasonable and justifiable under section
36(1) of the Constitution.76
[106] Axiomatically, this requirement can be satisfied only if, in term s of the
legislation in issue, a Judicial Officer does indeed play the role of a Judicial Officer.
That is, in the sense of being able to act as an independent arbiter and to exercise the
kind of oversight that guarantees pr ocedural safeguards. Requiring a Judicial Officer
to rubberstamp what a member of the Executive branch of State presents to her or him
is inconsonant with this requirement.
[107] The “jurisdictional facts” for a Magistrate to issue a warrant are to be gl eaned
from section 5(1)(a) and (b). Section 5(1)(b) affords a Magistrate the leeway to act as
a Magistrate. I say so because in Heath this Court said the function of issuing search
warrants is suited to the judicial office because it entails the weighing -up of facts and
reaching a decision on them. 77 Section 5(1)(b) does afford a Magistrate an
72 Bernstein above n 69 at para 145. This too was endorsed at para 17 of De Lange above n 67.
73 Compare Sibiya above n 67 at para 31. An example of such procedure is the one stipulated by section 35 of
the Constitution.
74 Nel v Le Roux N.O. [1996] ZACC 6; 1996 (3) SA 562 (CC); 1996 (4) BCLR 592 (CC) at para 14.
75 Lawyers for Human Rights above n 57 at para 35.
76 An example is the need – under certain circumstances – for immediate arrest without the participation of a
Judicial Officer.
77 Heath above n 65 at para 34.
MADLANGA J
50
opportunity to exercise a judicial function in this fashion. That is so because this
section makes provision for the Magistrate to i ssue a warrant only if she or he would
have issued one in respect of an offence committed in South Africa. The effect of that
is to import the requirements under section 43(1) of the CPA.78 The functionaries
empowered to issue warrants of arrest under that section are Magistrates and “justic es
of the peace”.79 I will focus only on Magistrates.
[108] Section 43(1)(a) requires that an application for a warrant of arrest must set out
the offence alleged to have been committed. Whether an application d oes do this is
established through a mere perusal of the application. No special skill is required. In
that sense this is a mechanical exercise. I must accept though that in the context of
extradition the complexion changes in that the Magistrate has to satisfy her- or himself
that the offence is extraditable.
[109] Section 43(1)(b) requires that the application must allege: that the offence was
committed within the area of jurisdiction of the Magistrate; or, where the offence was
not committed within t hat area, that the person sought to be arrested is known or is –
78 Above n 51. Section 43(1) provides:
“Any Magistrate or justice m ay issue a warrant for the arrest of any person upon the written
application of an attorney-general, a public prosecutor or a commissioned officer of police—
(a) which sets out the offence alleged to have been committed;
(b) which alleges that such offence was committed within the area of jurisdiction of such
Magistrate or, in the case of a justice, within the area of jurisdiction of the Magistrate
within whose district or area application is made to the justice for such warrant, or
where such offence was not committed within such area of jurisdiction, which alleges
that the person in respect of whom the application is made, is known or is on
reasonable grounds suspected to be within such area of jurisdiction; and
(c) which states that from information taken upon oath there is a reasonable suspicion
that the person in respect of whom the warrant is applied for has committed the
alleged offence.”
79 Section 43 refers to a “justice”. This is not reference to Justices who hear court cases. Section 1 of the CPA
defines a justice as “a person who is a justice of the peace under the provisions of the Justices of the Peace and
Commissioners of Oaths Act [16 of] 1963”. In terms of the latter Act a justice of the peace is appointed by the
Minister of Justice or any officer of the Department of Justice with the rank of director, or an equivalent or
higher rank, delegated thereto in writing by the Minister, and is empowered to carry out such instructions for the
preservation of the peace and good order in such magisterial district as he may receive from the Magistrate of
that magisterial district , and render all assistance possible in suppr essing disorder or disturbance in such
magisterial district.
MADLANGA J
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on reasonable grounds – suspected to be within that area. Although this does entail a
weighing-up exercise and a need to decide whether these requirements are met, this
section is not applic able to extraditions . That is so for two reasons. First, with
extraditions the offences will always be ones committed in other countries. Second,
that part of section 5(1) which is applicable to both paragraphs (a) and (b) of the
section says any Magist rate may issue a warrant “irrespective of the whereabouts or
suspected whereabouts of the person to be arrested”. That means a Magistrate in
Johannesburg may issue a warrant for the arrest of a person in Cape Town.
[110] Section 43(1)(c) stipulates that, on information taken upon oath, the Magistrate
must be satisfied that “there is a reasonable suspicion that the person in respect of
whom the warrant is applied for has committed the alleged offence”. This too
involves an exercise of weighing-up evidentiary material and taking a decision on it.
[111] Section 5(1)(b) of the Extradition Act imports the section 43(1)(c) of the CPA
requirement. The result is that under section 5(1)(b) the Magistrate must bring her or
his own independent mind to bear on whet her, in the case where the person concerned
is accused of an extraditable offence,80 there are reasonable grounds to suspect that the
person has committed the offence. In the case where the information before the
Magistrate is that the person concerned is convicted of an offence, 81 all that the
Magistrate is required to do is to satisfy her - or himself that the person has indeed
been convicted . For it to be a conviction, it must be by a competent court. The
Magistrate must be satisfied that this is so. She or he is not expected to play the role
of a review or appellate arbiter on the legal correctness of the conviction; not even at
the level whether there are reasonable grounds to believe that the conviction is legall y
correct. To use an Americanism, the Magistrate must not second -guess the conviction
by the foreign court. To do so, would be to undermine the judicial system of the
80 Paragraph (b) of section 5(1).
81 Id.
MADLANGA J
52
requesting State. That, in turn, would be inconsonant with the idea of comity between
South Africa and those nations it owes extradition obligations.
[112] The procedural requirement of the right not to be deprived of freedom
arbitrarily or without just cause protected by section 12(1)(a) of the Constitution
appears to be satisfied by the Magistrate’s consideration of the questions whether: the
person concerned has been convicted of an extraditable offence by a competent court
of the requesting State; or, there are reasonable grounds to suspect that the person has
committed the offence charged. I say “appears to be satisfied” because I do not want
to be categorical as section 5(1)(b) is not under challenge. A categorical
pronouncement will have to be made when there is a challenge to the section.
[113] Coming to section 5(1)(a), the question is: how, if at all, does it satisfy this
procedural facet? The jurisdictional facts that a Magistrate issuing a warrant of arrest
under this section must be satisfied exist are: a notification; by the Minister; that the
Minister has rec eived a request from a foreign S tate; that the request is for the
surrender of the pe rson concerned to that foreign S tate; and – as the first judgment
says with reference to sections 2 to 4 of the Extradition Act – that t he request is in
respect of an extraditable offence. Although this last requirement is not readily
apparent from the wording of section 5(1)(a), it is not a thumbsuck. It comes from the
reference to “request” in section 5(1)(a). Section 4 makes plain that the request relates
to an extraditable offence.
[114] I have traversed every bit of the entire section 5(1)(a). On its plain wording,
that for me is the sum total of its requirements. On that wording, not much is required
of the Magistrate to exercise her or his mind. Mainly, she or he is required to act on
the mere say -so of the Minister. 82 That does not in the least aff ord the procedural
safeguards that are necessary under section 12(1)(a) of the Constitution. A lawyer’s
82 Unsurprisingly, the Minister admits as much in his written submissions: “[a] decision by the Magistrate to
issue a warrant in terms of section 5(1)(a) does not depend upon the exe rcise of a discretion, at least in the
ordinary administrative law sense of the word”.
MADLANGA J
53
mind balks at the idea that section 5(1)(a) can possibly be requiring a Magistrate to
issue a warrant purely on the basis that she or he has received a notification from the
Minister that the Minister has received a request from a foreign State for the surrender
of the person sought to be arrested. That is understandable. But t he question is
whether the section can be read in a constitutionally compliant manner.
[115] Section 39(2) of the Constitution provides that “[w]hen 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”.
That means “[i]f the provision under construction implicate s or affect s rights in the
Bill of Rights, then the obligation in section 39(2) is activated”. 83 Jafta J said in
Makate:
“The objects of the Bill of Rights are promoted by, where the provision is capable of
more than one meaning, adopting a meaning that does not limit a right in the Bill of
Rights. If the provision is not only capable of a construction that avoids limiting
rights in the Bill of Rights but also bears a meaning that promotes those rights, the
court is obliged to prefer the latter meaning. For, as this Court observed in Fraser:
‘Section 39(2) requires more from a court than to avoid an
interpretation that conflicts with the Bill of Rights. It demands the
promotion of the spirit, purport and objects of the Bill of Rights.’”84
[116] And in Hyundai Langa DP tells us that an expansive reading of legislation must
not focus only on the Bill of Rights, but must – as far as possible – ensure conformity
with the Constitution as a whole. He says:
“[W]hen the constitutionality of legislation is in issue, [ Judicial Officers] are under a
duty to examine the objects and purport of an Act and to read the provisions of the
legislation, so far as is possible, in conformity with the Constitution.
. . .
83 Makate v Vodacom (Pty) Ltd [2016] ZACC 13; 2016 (4) SA 121 (CC); 2016 (6) BCLR 709 (CC) at para 88.
84 Id at para 89.
MADLANGA J
54
Accordingly, Judicial Officers must prefer interpretations of legislation that fall
within constitutional bounds over those that do not, provided that such an
interpretation can be reasonably ascribed to the section.”85
[117] Section 5(1)(a) of the Extradition Act implicates the right not to be deprived of
freedom arbitrarily or without just cause. 86 This calls for a constitutionally compliant
reading. But – as Hyundai held – that is only if that reading “ can be reasonably
ascribed to the section”. 87 If a reading that is in conformity with the Constitution
would unduly strain the language of the legislation, then that reading is not viable.88
[118] Willing a s I am to find a constitutionally compliant interpretation of
section 5(1)(a), the problem I have is how one wiggles out of its provisions and
somehow finds other requirements that satisfy the procedural facet of the
section 12(1)(a) right. This, without unduly straining the language of the provision.
My difficulty is exacerbated by the fact that the procedural safeguards appear to be
specifically provided for in paragraph (b) of section 5(1). How can it be that in
respect of paragraph (a) we must someho w try to find them, from I do not know
where? These two paragraphs come one after the other in the exact same subsection.
It seems hardly likely that – whilst the Extradition Act was meant to have these
safeguards in both paragraphs – the Legislature wou ld have made provision for them
in the one paragraph but not in the other. To insist that these safeguards are satisfied
in section 5(1)(a) is straining the language of the section. There are simply no other
requirements outside of what is specified in paragraph (a).
[119] The first judgment sees a constitutionally compliant reading of section 5(1)(a)
in its use of the word “may” in section 5(1). That is insofar as the section provides
85 Hyundai above n 45 at paras 22-3.
86 Section 12(1)(a) provides that “[e]veryone has the right to f reedom and security of the person, which includes
the right not to be deprived of freedom arbitrarily or without just cause”.
87 Hyundai above n 45 at para 23.
88 Id at para 24.
MADLANGA J
55
that “[a]ny Magistrate may . . . issue a warrant”. The first judgment reasons that these
words – which precede both par agraphs (a) and (b) of section 5(1) – must mean the
same thing in both paragraphs. Yes, they do. But they mean no more than that a
Magistrate is being afforded a power to issue a warrant under whichever paragraph is
applicable. Each paragraph stipulates specific requirements that must be met for a
warrant to be issued. And those requirements have nothing to do with the words
“[a]ny Magistrate may . . . issue a warrant”, which introduce both paragraphs. Thus I
do not see how, in the case of paragraph (a), these words can have the magical effect
suggested by the first judgment. So, the fact that the words mean the same thing in
both paragraphs adds nothing to the debate. The real debate is about the requirements
of each paragraph.
[120] Where the two judgments diverge is on the first judgment ’s reasoning that –
because of the use of the word “may” in section 5(1) – in paragraph (a) a Magistrate
has a discretion to go outside of the requirem ents that appear ex facie (on the face of)
this paragraph. According to this reasoning, “may” is permissive and it is because of
this that a Magistrate is empowered to find requirements that satisfy the procedural
facet of section 12(1)(a) of the Constitu tion. For this, the reasoning relies on the
judgment of Sachs J in South African Police Service.89 From the very passage quoted
in the first judgment, it is plain that there Sachs J did not purport to hold that “ may” is
always permissive in the manner suggested by the first judgment. He prefaced what
he held with “ in the context of this case ” the word “‘may’ . . . does not mean
‘must’”.90 So, there the conclusion was reached through an interpretative exercise
dictated by the context, and not because “may” is always permissive.
[121] In the present context, an interpretation that some requirements that render
section 5(1) (a) constitutionally compliant can somehow be sourced from elsewhere
gives rise to absurdities and incongruities ; and – with a measure of reluctance and
89 South African Police Service above n 40.
90 Id at para 35. Sachs J’s judgment was the majority judgment.
MADLANGA J
56
deference – I dare say glaring absurdities and incongruities .91 An age -old principle
says courts must avoid an interpretation that results in glaring absurdities. In Venter v
Rex Innes CJ held:
“[W]hen to give the plain words of the statute their ordinary meaning would lead to
absurdity so glaring that it could never have been contemplated by the Legislature, or
where it would lead to a result contrary to the intention of the Legislature, as shown
by the context or by such other considerations as the Court is justified in taking into
account, the Court may depart from the ordinary effect of the words to the extent
necessary to remove the absurdity and to give effect to the true intention of the
Legislature.”92
[122] In the more than 100 years that have elapsed this principle has been followed
consistently.93 Shorn of the reference to the “intention of the Legislature”, 94 I endorse
this statement of the law. And this Court already endorsed it in Bertie Van Zyl.95
[123] The absurdities and incongruities that result from the first judgment’s
interpretation tell us that this interpretation unduly strains the language of section 5(1).
Hyundai says such an interpretation is not viable.96
[124] Unsurprisingly, in different con texts this Court has held that “may” grants a
power coupled with an obligation to exercise it once the applicable jurisdictional facts
have been met.97 What was held in Van Rooyen is captured as follows in Saidi:
91 I deal fully with this shortly.
92 Venter v Rex 1907 TS 910 at 914-5.
93 See Hanekom v Builders Market Klerksdorp (Pty) Ltd [2006] ZASCA 2; 2007 (3) SA 95 (SCA) at para 7.
94 In Marshall v Commission for the South African Revenue Service [2018] ZACC 11; 2019 (6) SA 246 (CC);
2018 (7) BCLR 830 (CC) at para 4 Froneman J held that it is "a relic of an outdated appro ach to
interpretation . . . to seek to ascertain the subjective intention of the Legislature rather than to adopt the proper
purposive interpretation, which is concerned with the objective purpose of the legislati on".
95 Bertie Van Zyl (Pty) Ltd v Minister for Safety and Security [2009] ZACC 11; 2010 (2) SA 181 (CC); 2009
(10) BCLR 978 (CC) at fn 36.
96 Hyundai above n 45 at para 23.
MADLANGA J
57
“At issue in Van Rooyen was the meaning of ‘may’ in section 13(3)(aA) of the
Magistrates Act. The question was whether – since the section provided that the
Minister of Justice ‘may’ confirm a recommendation by the Magistrates Commission
that a Magistrate be suspended – the Minister could exercise a discretion not to
suspend the Magistrate. Answering the question in the negative, Chaskalson CJ held:
‘As far as the Act is concerned, if “may” in section 13(3)(aA) is read
as conferring a power on the Minister coupled with a duty to use it,
this would require the Minister to refer the Commission’s
recommendation to Parliament, and deny him any discretion not t o
do so.
. . .
In my view this is the constitutional construction to be given to
section 13(3)(aA). On this construction, the procedure prescribed by
section 13(3) of the Act for the removal of a Magistrate from office is
not inconsistent with judicial independence.’”98
[125] On the first judgment’s interpretation, section 5(1)(a) would read something
like (with the insertion underlined):
“Any Magistrate may, irrespective of the whereabouts or suspected whereabouts of
the person to be arrested, issue a warrant for the arrest of any person—
(a) upon receipt of a notification from the Minister to the effect that a request for
the surrender of such person to a foreign State has been received by the
Minister and upon such information as would in the opinion of the Magistrate
justify the issue of a warrant for the arrest of such person, had it been alleged
that he or she committed an offence in the Republic.”
[126] On thi s reading, there would be little separating paragraphs (a) and (b) of
section 5(1). They could easily have been collapsed into one instead of – as the first
judgment suggests – repeating the underlined requirement. When one renders this
97 S v Van Rooyen (General Council of the Bar of South Africa Intervening) [2002] ZACC 8; 2002 (5) SA 246;
2002 (8) BCLR 810 (CC) at para 181 and Saidi v Minister of Home Affairs [2018] ZACC 9; 2018 (4) SA 333
(CC); 2018 (7) BCLR 856 (CC) at para 17.
98 Saidi id.
MADLANGA J
58
reading, it becomes plain that the Extradition Act has not made this choice. It has, in
terms, made provision for the procedural safeguards in paragraph (b), and it has not
done so in paragraph (a). The major concern of the first judgment is unconstitutional
consequences that would be visited upon a person to be arrested in terms of a warrant
issued under paragraph (a). On my approach, those do not have to come about; I
invalidate paragraph (a).
[127] Lastly on this, the first judgment’s reliance on Mohunram is inapt. That is so
because in the instant matter, there are the two paragraphs of section 5(1) that stand in
stark contrast to one another. Crucially, there are the incongruities and absurdities,
which I deal with presently, that simply do not admit of a constitu tionally compliant
interpretation.
[128] I next interrogate the first judgment ’s reliance on section 5(2) of the
Extradition Act.
[129] Section 5(2) provides that a warrant “issued” under section 5(1) must be “in the
form and shall be executed in the man ner as near as may be as prescribed in respect of
warrants of arrest in general by or under the laws of the Republic relating to criminal
procedure”. The first judgment’s reading of section 5(2) is that it incorporates the
factors that must be taken into account when a warrant is issued under section 43(1) of
the CPA. In this regard, it errs. It accepts – and it has no option not to – that
section 5(2) applies to both types of warrants, i.e. warrants issued under both
paragraphs (a) and (b) of section 5( 1). It has no option because section 5(2) in terms
refers to warrants issued “under this section”. And those are the paragraph (a) and
paragraph (b) warrants. Thus it must follow on the first judgment’s reasoning that the
factors imported from section 43(1) of the CPA into section 5(1) of the
Extradition Act apply to both types of warrants.
[130] One need only say this to see that it simply cannot be correct. By requiring a
Magistrate to issue a warrant only upon information that would justify the issuing of a
MADLANGA J
59
warrant if the offence had been committed in South Africa, section 5(1)(b) already has
a self-contained importation of those requirements stipulated by section 43(1) of the
CPA that can appropriately find application to section 5(1)(b) warrants . The first
judgment’s reading of section 5(2) means this section doubly imports those CPA
requirements in the case of section 5(1)(b). For what purpose? There cannot possibly
be any. And one would have to engage in impractical mental gymnastics to sugges t
that – although section 5(2) applies to both paragraphs (a) and (b) – this section
somehow does not make the CPA requirements to find application in paragraph (b)
warrants. That simply cannot be done; the first judgment’ s interpretation must,
therefore, mean that, in the case of section 5(1)(b), the CPA requirements are imported
twice. One must then be left with the absurd surplusage of the double imposition of
the CPA requirements in the case of paragraph (b).
[131] This alone is an indication that section 5(2) does not mean what the first
judgment says it means. What does the section mean? The section says a warrant
issued under section 5(1) must – as near as may be – be “in the form” and executed
“in the manner” as may be prescribed for warrants of arrest under South Africa’s laws
on criminal procedure. The manner of execution is irrelevant for present purposes.
“Execution” relates to how the warrant will be “used” for its intended purpose. In this
regard, I refer to some of the meanings of “execute”, which are “implement”, “effect”
and “perform”.99
[132] In context, I would say “form” as envisaged in section 5(2) concerns what the
warrant must look like ; what form must it take? It has nothing to do with the
requirements for issue. This reading is buttressed by the incongruity of the double
importation of the CPA factors to section 5(1)( b). Indeed, dictionary meanings of
“form” that make sense in our context are: “organisation, shape and structure” 100 of a
99 Collins Dictionary and English Thesaurus, available at https://www.collinsdictionary.com/dictionary/english-
thesaurus/execute.
100 Cambridge Dictionary, available at https://dictionary.cambridge.org/dictionary/english/form.
MADLANGA J
60
document; the “particular way in which a thing exists or appears”; 101 or “a document
printed with spaces in which to write answers or information”.102
[133] It makes sense that after setting out the requirements for issuing a warrant in
section 5(1), the Extradition Act must make provision for what the warrant should
look like and how it should be executed. And, because under our criminal procedure
warrants already take a particular form and are executed in a certain manner, the Act
does not reinvent the wheel; it merely cross -refers to what pertains in the case of
warrants issued under our law on criminal procedure. The very fact that section 5(2)
pairs “for m” with “execution” is an indication that both are not part of the
Magistrate’s decision on whether to issue a warrant. That is why the section refers to
“a warrant issued under this section”. The choice of tense is not an accident. Of
course, in practi ce as the Magistrate decides to issue a warrant, she or he almost
simultaneously signs it in the form envisaged in section 5(2). But the reality is that –
before signature – there is a decision to issue, even if the decision and signature may
be separated by a split second. And that decision has nothing to do with the form the
warrant takes.
[134] Even at the level of language, if what was meant by section 5(2) was that in
issuing a warrant under section 5(1) of the Extradition Act the Magistrate was
required to take into account, inter alia, section 43(1) of the CPA, section 5(2) would
most likely have been worded differently. That is, to convey the exact idea that, inter
alia, the section 43(1) requirements are to be taken into account. But then again ,
section 5(2) does not do that. In the case of paragraph (b) of section 5(1) it is
understandable why not; that paragraph has – as I have said – an inbuilt importation of
those requirements. In the case of paragraph (a) it must simply be that there is a
conscious choice for the CPA requirements not to apply to section 5(1)(a).
101 Lexico Dictionary, powered by Oxford, available at https://www.lexico.com/definition/form.
102 Cambridge Dictionary above n 100.
MADLANGA J
61
[135] I would be surprised if it were ever to be suggested that the requirements for
the issuing of a warrant of arrest under the CPA on suspicion of the commission of an
offence are not fully set out in section 43(1) of the CPA. 103 What then must we make
of the similarity in the wording used in that section and in section 5(1) of the
Extradition Act? Section 43(1) states that “ any Magistrate or justice may issue a
warrant for the arrest of any person . . .”. Similarly, section 5(1) states th at “ any
Magistrate may , irrespective of the whereabouts or suspected whereabouts of the
person to be arrested, issue a warrant for the arrest of any person . . .”. Like
section 43(1), section 5(1) must also be dealing with the requirements and, unless
there is a clear basis for suggesting otherwise, it too must be doing so fully. This too
must mean that section 5(2) has nothing to do with requirements for the issuing of
warrants.
[136] Thus section 5(2) does not provide a bridge for the first judgment to reach the
CPA requirements for the issuing of warrants of arrest. Although – on its own – this
conclusion is dispositive of this issue, there are additional reasons. Through
section 5(2), the first judgment takes from the CPA all the requirements contain ed in
paragraphs (a) to (c) of section 43(1). On the paragraph (a) requirement, i.e. the
requirement that the application for a warrant must set out the offence alleged to have
103 I am mindful of the Appellate Divi sion and Supreme Court of Appeal judgments that have held that a
Magistrate may, under certain circumstances, refuse to issue a warrant of arrest for reasons outside of the set
requirements. In Prinsloo v Newman 1975 (1) SA 481 (A) at 500C-D the Appellate Division held:
“[T]he Magistrate is not called upon to consider the correctness of the prosecutor's conclusion
with regard to reasonable grounds of suspicion. But that does not mean that the Magistrate
does not exercise a discretion in considering whether to issue a warrant. He must satisfy
himself that the alleged offence is an offence in law, and that it is of such a nature and gravity
as to justify the issue of a warrant.”
And in Sekhoto above n 53 at para 28 the Supreme Court of Appeal held:
“Once the jurisdictional facts for an arrest . . . in terms of section 43 are present, a discretion
arises. The question whether there are any constraints on the exercise of discretionary powers
is essentially a matter of construction of the empowering statute in a manner that is consistent
with the Constitution. In other words, once the required jurisdictional facts are present, the
discretion whether or not to arrest arises. The [Magistrate], it should be emphasised, is not
obliged to effect an arrest.”
Both dicta are a far cry from a suggestion that a Magistrate may refuse to issue a warrant at will. In fact, these
dicta do not suggest that there are statutorily imposed additional requirements. Rather they say that, as a matter
of law, if there is some impropriety in seeking a warrant, it will not be issued even if the set and only
requirements have been met.
MADLANGA J
62
been committed, even in the case of section 5(1)(a) of the Extradition Act thi s would
constitute a duplication. In [113] above where I deal with the jurisdictional facts for
issuing a warrant under that section, I mention that it is a requirement that the
extraditable offence must be set out. On my understanding (and this is cruci al), my
colleague and I agree on this. The question that then arises is: why must this be
provided for a second time through section 43(1)(a) of the CPA? This can only be
another case of absurd surplusage.
[137] I do not quite understand how the first judgment relies on section 43(1)(b).
That section requires that an application for a warrant must allege that the offence was
committed within the Magistrate’s area of jurisdiction or that the person who is the
subject of the warrant is known, or on reas onable grounds suspected, to be within that
area of jurisdiction. By its very nature, extradition concerns offences committed in
foreign territory. So, the first envisaged allegation is an impossibility. Regarding the
second envisaged allegation, it is excluded in so many words by section 5(1) , which
does away with a Magistrate’s territorial jurisdiction: “[a]ny Magistrate may,
irrespective of the whereabouts or suspected whereabouts of the person to be
arrested, issue a warrant”.
[138] With regard to p aragraph (c) of section 43(1) of the CPA, I need say nothing
more.
[139] That puts paid to all the section 43(1) requirements. In sum, I do not see the
point of the first judgment’s importation of section 43(1). That means a Magistrate
acting under sect ion 5(1)(a) of the Extradition Act is left with having to issue a
warrant once the requirements set by that section have been satisfied. That is bereft of
the procedural safeguards necessary under section 12(1)(a) of the Constitution. The
fact that we ba lk at what section 5(1)(a) requires of a Magistrate does not lead to the
section’s constitutionality.
MADLANGA J
63
[140] What led to unconstitutionality in Lawyers for Human Rights was, amongst
others, the lack of judicial oversight in the deprivation of freedom. 104 Here as well –
because section 5(1)(a) makes it impossible for a Magist rate to act as a Magistrate –
there is no distinction.
[141] In conclusion, section 5(1)(a) limits the right not to be deprived of freed om
arbitrarily or without just cause. It cannot be saved by a Hyundai-type interpretation,
which requires that courts render a constitutionally compliant interpretation where that
is possible.105 Constitutionally compliant does not automatically equal viable. To be
viable, an interpretation must meet the Hyundai principle: whilst constitutionally
compliant, it must not do violence to or strain the language. 106 Hyundai, as amplified
in Makate, never meant a constitutionally compliant interpretation must be rendered at
all costs. What it seeks to achieve is a construction that averts invalidation, if averting
be possible, or where there is no risk of invalidation but there are two or more possible
interpretations, one that better accords with the Constitution in general, 107 or one that,
in terms of section 39(2) of the Constitution, better promotes the spirit, purport and
objects of the Bill of Rights. 108 Where there is a constitutional challenge and the
legislation cannot be saved by the Hyundai principle, invalidation must follow or –
where the challenge is founded on the Bill of Rights – a justification analysis must be
undertaken. Here there is a challenge and section 5(1)(a) cannot be read in a
constitutionally compliant manner.
[142] No serious attempt was made by the Minister to justify the limitation. 109 I am
well aware that – even where the party who had to proffer evidence of justification has
104 Lawyers for Human Rights above n 57 at para 39.
105 Hyundai above n 45 at para 23.
106 Id at para 24.
107 Id at paras 22-3.
108 Makate above n 83 at para 88.
109 Section 36(1) of the Constitution provides:
MADLANGA J
64
failed to do so – it is incumbent upon this Court to be satisfied that the limitation is not
justified.110 With that duty in mind, I have considered the question of justification and
am not satisfied that the limitation is reasonable and justifiable in terms of section
36(1).
[143] Thus section 5(1)(a) is unconstitutional for unjustifiably limiting the right not
to be deprived of freedom arbitrarily or without just cause.
[144] The section is also unconstitutional for breaching the separation of powers
principle. I next deal with this.
[145] Let me preface this discussion by clarifying that the separation of powers
principle is not a bar to the performance by Judicial Officers of non -judicial
functions.111 In SARFU this Court held that “Judicial Officers may, from time to time,
carry out administrative tasks”.112 But it cautioned that “[t]here may be circumstances
in which the performance of administrative functions by Judicial Officers infringes the
doctrine of separation of powers”. 113 Heath explains that those circumstances are
where the pe rformance of non -judicial functions would be incompatible with judicial
office.114 In the words of Chaskalson CJ—
“The rights in the Bill of Rights may be limited only in terms of law of general application to the extent
that the limitation is reasonable and justifiable in an open and democratic society based on human
dignity, equality and freedom, taking into account all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.”
110 Phillips v Director of Public Prosecutions , Witwatersrand Local Division [2003] ZACC 1; 2003 (3) SA 345
(CC); 2003 (4) BCLR 357 (CC) at para 20.
111 See Sibiya above n 67 at para 39.
112 President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 11; 2000 (1)
SA 1 (CC); 1999 (10) BCLR 1059 (CC) (SARFU) at para 141.
113 Id at fn 107.
114 Heath above n 65 at para 31.
MADLANGA J
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“the question is one calling for a judgment to be made as to whether or not the
functions that the J udge is expected to perform are incompatible with the judicial
office and, if they are, whether there are countervailing factors that suggest that the
performance of such functions by a Judge will not be harmful to the institution of the
Judiciary, or materially breach the line that has to be kept between the Judiciary and
the other branches of government in order to maintain the independence of the
Judiciary.”115
[146] Reverting to section 5(1), I will start with section 5(1)(b) in order to bring to
the fore the contrast with section 5(1)(a).
[147] Under section 5(1)(b) a Magistra te must bring her or his own mind to bear on
whether the information placed before her or him would justify the issuing of a
warrant of arrest in respect of an offence alleged to have been committed in
South Africa. That is exactly what Heath places within the purview of functions of
the judicial office.116 The effect of the reference to information that would justify the
issuing of a warrant of arrest in South Africa is to import the prerequisite of the
existence of “a reasonable suspicion that the person in respect of whom t he warrant is
applied for has committed the alleged offence”. 117 That is so because for an offence
alleged to have been committed in South Africa a warrant of arrest may be issued if,
amongst others, this prerequisite is satisfied. 118 And the Magistrate is exp ected to do
more than merely rubberstamp the assertion in the application for the issuing of a
warrant of arrest that a reasonable suspicion exists. She or he must satisfy her - or
himself that this is indeed so. I explained above that, even in the case o f a request for
the extradition of a person who has been convicted of an extraditable offence, a
115 Id.
116 Id at para 34.
117 That is the language of section 43(1)(c) of the CPA. This is one of the prerequisites for the issuing of a
warrant of arrest.
118 This is provided for in section 43(1) of the CPA. See above n 78.
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Magistrate permissibly performs a judicial function in deciding whether there is
enough to satisfy her or him of this fact.
[148] A question that arises is wh ether the issuing of a warrant of arrest by a
Magistrate under section 5(1)(a) is compatible with the judicial office: does it meet the
Heath test? S ection 5(1)(a) requires no more than that a Magistrate may issue a
warrant of arrest upon being presented with a notification from the Minister to the
effect that the Minister is in receipt of a request for the extradition of the person
concerned to a foreign S tate. That is all. A Magistrate must issue the warrant if what
the section stipulates is satisfied.
[149] This Court held in Heath:
“The performance of [the functions of presiding over commissions of inquiry]
ordinarily calls for the qualities and skills required for the performance of judicial
functions – independence, the weighing up of information, the forming of an opinion
based on information, and the giving of a decision on the basis of a consideration of
relevant information. The same can be said about the sanctioning of search warrants,
where the Judge is required to determine whether grounds exist for the invasion of
privacy resulting from searches.”119
[150] The issuing of a warrant of arrest under section 43(1) of the CPA is comparable
to the issuing of a search warrant. It too r equires a determination by the J udicial
Officer whether grounds exist for the deprivation of freedom resulting from the arrest.
That determination entails an independent assessment of information presented to her
or him and a decision whether – based on that information – the issuing of the warrant
of arrest is warranted. On the authority of Heath that places the issuing of a warrant
of arrest under section 43(1) within the purview of functions of the judicial office.
119 Heath above n 65 at para 34.
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[151] On the other hand, the issuing of a warrant of arrest under se ction 5(1)(a)
makes it impossible for a Magistrate to act as an independent arbiter and to exercise
the kind of oversight that guarantees procedural safeguards. Section 5(1)(a) strait -
jackets a Magistrate to act within its restrictive confines , which do not admit of the
exercise of an independent mind. Put bluntly, in a situation where a Magistrate ought
to do something that pre -eminently falls within the domain of judicial function,
section 5(1)(a) co -opts the Magistrate effectively to act on the mere say -so of a
member of the Executive arm of State, the Minister. The unintended consequence of
the section’s involvement of a Magistrate under those circumstances is that a Judicial
Officer is required to lend judicial legitimacy to what, in essen ce, is an executive act.
Not only is the performance of the section 5(1)(a) function outside of the purview of
functions of the judicial office, it is “harmful to the institution of the Judiciary” and
thus breaches the principle laid down in Heath.120 That constitutes a breach of the
separation of powers principle , thus rendering section 5(1)(a) unconstitutional on this
basis as well.
[152] The invalidation of section 5(1)(a) will not do violence to comity. From what
this Court held in Harksen, it seems that this is not something that should surprise the
international community. Goldstone J held:
“An extradition procedure works both on an international and a domestic plane.
Although the interplay of the two may not be severable, they ar e distinct. On the
international plane, a request from one foreign State to another for the extradition of a
particular individual and the response to the request will be governed by the rules of
public international law. At play are the relations betwee n States. However, before
the requested State may surrender the requested individual, there must be compliance
with its own domestic laws. Each State is free to prescribe when and how an
extradition request will be acted upon and the procedures for the a rrest and surrender
of the requested individual. Accordingly, many countries have extradition laws that
provide domestic procedures to be followed before there is approval to extradite.”121
120 Id at para 31.
121 Harksen above n 21 at para 4.
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[153] In our case, we have our extradition law, the Extradition Act. This law is
subject to our supreme law, the Constitution.
[154] The appeal is upheld, and section 5(1)(a) is declared unconstitutional.
[155] The following order, which is largely taken from the order proposed in the first
judgment, is made:
1. The declaration of invalidity made by the High Court of South Africa,
Western Cape Division, Cape Town is confirmed in the terms set out in
paragraph 2.
2. Section 63 of th e Drugs and Drug Trafficking Act 140 of 1992 is
declared to be inconsistent with the Constitution and invalid to the
extent that it purports to delegate plenary legislative power to amend
Schedules 1 and 2 to the Drugs and Drug Trafficking Act to the Minis ter
of Justice and Correctional Services.
3. The following purported amendments to Schedules 1 and 2 to the Drugs
and Drug Trafficking Act are declared invalid:
(i) GN R1765 of 1 November 1996, which amended Part III of
Schedule 2;
(ii) GN R344 of 13 March 1998, which amended Part I and II of
Schedule 1;
(iii) GN R760 of 11 June 1999, which amended Part I, II and III of
Schedule 2;
(iv) GN R521 of 15 June 2001, which amended Part I of Schedule 1
and Part I, II, and III of Schedule 2;
(v) GN R880 of 8 Octobe r 2010, which amended Part II of
Schedule 1; and
(vi) GN R222 of 28 March 2014, which amended Part I, II, and III of
Schedule 2.
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4. The declarations of invalidity in paragraphs 1, 2 and 3 of the order take
effect from the date of this order.
5. The order o f invalidity is suspended for a period of 24 months to allow
Parliament to cure the defect.
6. The application for leave to appeal directly to this Court is granted.
7. The appeal against the order of the High Court in terms of which it
refused to declare all the Schedules to the Drugs and Drug Trafficking
Act invalid, but only the amendments to Schedules 1 and 2 of the Drugs
and Drug Trafficking Act, effected in terms of section 63, as invalid is
dismissed.
8. The appeal against the order of the High Court dismissing the
application to declare section 5(1)(a) of the Extradition Act 67 of 1962
to be inconsistent with the Constitution is upheld, and that order is set
aside.
9. Section 5(1)(a) of the Extradition Act 67 of 1962 is declared to be
inconsistent with the Constitution and invalid.
10. The declaration of invalidity in paragraph 9 takes effect from the date of
this order.
11. Each party must pay its own costs.
For the Applicant:
For the First Respondent:
A Katz SC, D Simonsz and
K Perumalsamy instructed by Riley
Incorporated
A Breitenbach SC and A Christians
instructed by State Attorney