CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 85/20
In the matter between:
DIRECTOR OF PUBLIC PROSECUTIONS,
WESTERN CAPE Applicant
and
LEE NIGEL TUCKER Respondent
Neutral citation: Director of Public Prosecutions, Western Cape v Tucker [2021]
ZACC 25
Coram: Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Mathopo AJ,
Mhlantla J, Theron J, Tshiqi J and Victor AJ
Judgments: Mathopo AJ (first judgment): [1] to [61]
Theron J (second judgment): [62] to [118]
Jafta J (third judgment): [119] to [135]
Heard on: 3 November 2020
Decided on: 6 September 2021
Summary: Section 10 of the Extradition Act 67 of 1962 — magistrate’s
powers — extradition enquiry
Leave to appeal dismissed — magistrate is entitled to receive
evidence relating solely to Minister’s order in terms of section 11
of the Extradition Act
2
ORDER
On appeal from the High Court of South Africa, Western Cape Division, Cape Town:
1. The application for condonation is granted.
2. The application for leave to appeal is dismissed.
3. There is no order as to costs.
JUDGMENT
MATHOPO AJ (Mogoeng CJ concurring):
In 1997 , a group of adult males who had allegedly been sexually exploiting
vulnerable boys in Bristol, Cardiff, Swansea and Caerphilly in the U nited Kingdom,
were reported to the Avon and Somerset Police Force. A major investigation into the
allegations was conducted, which culminated in the conviction of ten men in 1999 for
serious sexual offences committed against adolescent boys. In October and
November 1999, two victims laid complaints of sexual abuse against
Mr Lee Nigel Tucker and two others. As a result, Mr Tucker was arrested and charged
with sexual offences on 24 November 1999.
On 19 September 2000, Mr Tucker was tried at Swindon Crown Court, together
with his co-accused. Mr Tucker was present at the trial up until the last day at which
point he absconded to South Africa. On 2 October 2000, a warrant for his arrest was
issued by the trial J udge. Mr Tucker was convicted, in absentia (in his absence) , of
nine charges and sentenced to a total of eight years’ imprisonment on 4 October 2000.
Despite being on the run, Mr Tucker was able to instruct his legal representatives to
MATHOPO AJ
3
appeal his convict ion. His appeal was successful. On 29 May 2002, the United
Kingdom’s Court of Appeal quashed the conviction and ordered a re-trial.
Mr Tucker was indicted on 11 July 2002 on the original eight offences, with one
charge having been dropped for purposes of his re-trial. The re-trial was meant to take
place at Bristol Crown Court. However, Mr Tucker did not attend his re -trial and a
warrant of arrest was issued by the Bristol Crown Court on 19 July 2002.
While Mr Tucker remained on the run, further investigations were conducted
into his offences. These investigations revealed additional evidence of abuse with more
victims coming forward. All eight of the complainants had been between the ages of
12 and 15 years when the sexual offences were allegedly committed against them. The
commission of the sexual offences allegedly often took place at a lodging house which
was run by Mr Tucker . It was also discovered by the police that Mr Tucker and his
co-accused ran a homosexual pornographic fil m company which used young boys as
subjects. Mr Tucker also allegedly prostituted some of the complainants.
In terms of a new warrant at first instance issued by the North Avon Magistrates’
Court on 26 February 2016, Mr Tucker was charged with a total of 42 sexual offences
committed against eight complainants between 1983 and 1993. A fresh warrant for
Mr Tucker’s arrest was issued on 31 March 2016 by the Bristol Crown Court.
Upon learning of his whereabouts in South Africa, 1 6 years after his
disappearance, the United Kingdom made a request for Mr Tucker’s provisional arrest
by the South African authorities. On 4 March 2016, the Pretoria Magistrates’ Court
issued a warrant for Mr Tucker’s arrest under section 5(1)( b) of the Extradition Act. 1
Mr Tucker was subsequently provisionally arrested on 18 March 2016 in Cape Town.
1 67 of 1962.
MATHOPO AJ
4
On 19 April 2016, South Africa received a request from the United Kingdom for
Mr Tucker’s extradition, which was followed by the requisite certificate issued in terms
of section 10(2) of the Extradition Act, on 23 June 2016. According to the extradition
request, he was charged with buggery against minor boys and other persons; indecent
assault and acts of gross indecency against minor boys and majors; and living on the
earnings of prostitution and conspiracy to live on the earnings of prostitution in terms
of the United Kingdom’s respective Sexual Offences Acts.2
Litigation history
Proceedings before the Magistrates’ Court
Subsequent to Mr Tucker’s arrest, he appeared before the Cape District
Magistrates’ Court on 13 October 2017, for an enquiry in terms of section 9 of the
Extradition Act, and for a determination in terms of section 10(1) on his liability to be
surrendered to the United Kingdom and his committal to prison awaiting the decision
to surrender by the Minister of Justice and Correctional Services.
Before the Magistrates’ Court, the Director of Public Prosecutions, Wester n
Cape (DPP) submitted that both jurisdictional facts in section 10(1) of the Extradition
Act had been established to warrant Mr Tucker’s committal to prison.
2 Sexual Offences Act 1956 (1956 Act) and Sexual Offences Act 1967 (1967 Act). The relevant sections of these
Acts have been repealed by the Sexual Offences Act 2003. However, these offences were committed between
1983 and 1993, and are subject to the law as it was then. The charges against Mr Tucker were in terms of sections
12(1), 13 and 15(1) of the 1956 Act, and section 5(1) of the 1967 Act. The charges in the extradition request were
equivalent to the following offences in South Africa, in terms of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007:
(a) Rape of a minor boy per anum.
(b) Sexual assault.
(c) Compelled sexual assault, consisting of masturbating an underage boy.
(d) Sexual exploitation and sexual grooming of children; and using children for or benefiting from
child pornography.
In our law, these offences attract varying terms of imprisonment ranging from life imprisonment to lengthy terms
of imprisonment.
MATHOPO AJ
5
Section 10(1) of the Extradition Act provides for both convicted and accused
persons. It requir es an enquiry into whether a person is liable to be surrender ed to a
foreign State and committed to prison pending the Minister’s final decision to
surrender.3 In this enquiry, referred to as committal proceedings, a magistrate is
required to determine whether the following two jurisdictional facts have been
established when committing an accused person to prison:
(a) The person is a person liable for extradition; and
(b) There is sufficient evidence to warrant that person’s prosecution in the
foreign State. 4 However, this jurisdictional fact need not be
established in the case of a person already having been convicted of
an offence.
Mr Tucker accepted that the second jurisdictional fact had been established
through the issuance of the section 10(2) certificate – the authenticity of which he did
not challenge. However, he did challenge the establishment of the first jurisdictional
fact on three grounds. I now proceed to deal with them in turn. The first ground,
Mr Tucker submitted, was that he could not be charged with the offences contained in
the extradition request, as section 7(2) of the United Kingdom’s Criminal Appeal Act 5
prohibited the re-trial of offences for which the accused was not convicted at the original
trial.
3 Section 10(1) of the Extradition Act reads:
“If upon consideration of the evidence adduced at the enquiry referred to in section 9(4)(a) and
(b)(i) the Magistrate finds that the person brought before him or her is liable to be surrendered
to the foreign State concerned and, in the case where such person is accused of an offence, that
there is sufficient evidence to warrant a prosecution for the offence in the foreign State
concerned, the Magistrate shall issue an order committing such person to prison to await the
Minister’s decision with regard to his or her surrender, at the same time informing such person
that he or she may within 15 days appeal against such order to the Supreme Court.”
The United Kingdom is a foreign non -associated state for the purposes of section 9(4)(a) of the Extradition Act,
section 10 of the Extradition Act applies.
4 See Geuking v President of the Republic of South Africa [2002] ZACC 29; 2003 (1) SACR 404 (CC); 2 004 (9)
BCLR 895 (CC) at para 36.
5 1968.
MATHOPO AJ
6
In resp ect of the second ground, Mr Tucker submitted that he could not be
extradited to face punishment which was inconsistent with the Constitution. On this
point, he submitted that his right to equality would be infringed should he be made to
stand trial in the United Kingdom, as he would be discriminated against on the basis of
sexual orientation. His claim was based on allegedly discriminatory criminal laws in
respect of heterosexual and homosexual sexual offences.
The third ground was based on a contention that he would not receive a fair trial
because of the negative media attention that his case had attracted i n the
United Kingdom. T he United Kingdom’s criminal justice s ystem is based on a jury
system and, for that reason, Mr Tucker submitted that such n egative publicity would
influence the pool of laypersons from which the jury would be drawn, and consequently
infringe on his right to a fair trial.
By making these submissions, Mr Tucker was requesting the Magistrate to
permit him to put forward evidence for the Magistrate to include in his section 10(4)
report to the Minister. The evidence which Mr Tucker sought to adduce did not relate
to the section 10 enquiry, but was relevant to the Minister’s considerations in terms of
section 11 of the Extradition Act. As a result, the Magistrate refused the request.
On 10 November 2017, the Magistrate found that the evidence placed before him
by the DPP complied with section 9(3) of the Extradition Act; that Mr Tucker was a
person liable to be surrendered to the United Kingdom; and that there was sufficient
evidence to confirm that Mr Tucker had committed extraditable offences in the
United Kingdom. The Court therefore made an order committing Mr Tucker to prison
awaiting the Minister’s decisi on to surrender him to the United Kingdom. Mr Tucker
was to be detained at Pollsmoor Prison pending extradition.
Proceedings before the High Court
Aggrieved by the decision of the Magistrate, Mr Tucker app lied to the
High Court of South Africa, Western Cape Division, Cape Town to both appeal and
MATHOPO AJ
7
review the Magistrates’ Court judgment. He contended that the Magistrate improperly
admitted hearsay evidence during the section 10 proceedings , and that the United
Kingdom was not entitled to request his extrad ition on fresh charges of sexual assault.
Principally, he argued that the Magistrate should have admitted the evidence relating to
trial fairness in the United Kingdom.
In essence, Mr Tucker contended that the Magistrate’s refusal to allow him to
adduce expert evidence on British criminal law – that it discriminated unfairly against
homosexuals – as well as furnish the Court with extracts of media reports showing what
he had been subjected to, infringed his right to a fair trial. Relying on Geuking6 and
Garrido,7 Mr Tucker submitted that the Magistrate was obliged to permit him to give
and adduce evidence at the enquiry which would have a bearing , not only on the
Magistrate’s decision under section 10, but on the discretion exercised by the Minister
in terms of section 11 of the Extradition Act.
Mr Tucker did not take issue with the fact that the final determination rested with
the Minister, but urged the High Court to review and set aside the proceedings before
the Magistrates’ Court on the grounds that they were manifestly and grossly irregular,
and in breach of his constitutional rights.
Relying on the Supreme Court of Appeal’s decision in Garrido, the High Court
held that the Magistrate was obliged to receive any evidence that could have a bearing
on the exercise of the Minister’s decision to extr adite. The Magistrate’s failure to do
so, the Court found, constituted an irregularity in that it breached Mr Tucker’s
procedural rights and the audi alteram partem principle (to listen to the other side).8
6 Geuking above n 4.
7 Garrido v Director of Public Prosecutions, Witwatersrand Local Division [2006] ZASCA 169; 2007 (1) SACR
1 (SCA).
8 S v Tucker 2019 (2) SACR 166 (WCC) (High Court judgment) at para 75.
MATHOPO AJ
8
In respect of the Magistrate’s refusal to consider evidence pertaining to the
alleged potential infringement of Mr Tucker’s fair trial rights, the High Court held that
the Magistrate was correct to do so . However , when considering the decision of this
Court in Robinson II,9 the High Court went further and disagreed with this Court’s
relegation of the magistrate’s role to that of a “mere scribe and record compiler”.10 The
High Court held that inasmuch as the magistrate’s function in an extradition enquiry
was to determine whether the person was liable to be surrendered, that was primarily a
legal question – the answer to which rested on a consideration of the relevant provisions
of the law. 11 The High Court therefore held that the Magistrate could not refuse to
accept any evidence which Mr Tucker wished to tender, even though the Magistrate
would be unable to pronounce on it.
With regard to the alleged irregularities of the proceedings before the Magistrate,
the Court disa greed with Mr Tucker and held that it could not be said that the
irregularities were of such a nature as to vitiate the proceedings. Despite its
interpretation of Robinson II and Garrido, it dismissed Mr Tucker’s appeal, and
confirmed the order of the Magistrates’ Court. However, in line with its aforesaid
interpretation, the High Court ordered the re -opening of the proceedings of the
extradition enquiry to allow Mr Tucker the opportunity to put before the Magistrate an
affidavit by an expe rt on the Unite d Kingdom’s laws; and any documentary evidence
pertaining to the unfair media coverage. The purpose was that the Magistrate include
such evidence in his report to the Minister in terms of section 10(4) of the Extradition
Act.
Dissatisfied with the decision, Mr Tucker applied for special leave to appeal to
the Supreme Court of Appeal. His application was dismissed. He subsequently
petitioned the President of the Supreme Court of Appeal, and his petition was also
9 Director of Public Prosecutions, Cape of Good Hope v Robinson [2004] ZACC 22; 2005 (4) SA 1 (CC) ; 2005
(2) BCLR 103 (CC) (Robinson II).
10 High Court judgment above n 8 at para 47.
11 Id at para 46.
MATHOPO AJ
9
dismissed. The DPP had simultaneous ly sought leave to appeal paragraph 3 of the
High Court’s order which provided for the re-opening of the extradition proceedings to
allow Mr Tucker the opportunity to file evidence for purposes of the section 10(4)
report to the Minister. This application was also refused.
Mr Tucker intimated to the DPP that he would appeal to this Court, however, he
took no steps in this regard. The DPP relied on Mr Tucker to bring the application for
leave to appeal, and when he did not, the DPP proceeded to lodge an application with
this Court. The appeal was accompanied by an application for the condonation of its
late filing. It is paragraph 3 of the High Court ’s order relating to the re-opening of the
extradition proceedings that the DPP seeks to appeal before us.
In this Court
DPP’s submissions
The DPP submitted that the ce ntral question in this appeal is whether the
constitutional or fair trial rights of a person potentially liable to be surrendered may be
considered by a magistrate conducting an enquiry in terms of section 10, or whether
that may only be considered for the first time by the Minister. The DPP therefore
submitted that the appeal raised an important constitutional issue impacting on
fundamental rights, and that certainty is required in respect of the ambit of a magistrate’s
power in an extradition enquiry.
The DPP submitted that Geuking, Garrido and Robinson II may be read
harmoniously, as Geuking and Garrido did not give the sought person carte blanche to
give and adduce evidence which had no bearing on the section 10 enquiry. On the other
hand, although Robinson II was silent on the question of adducing evidence at a
section 10 enquiry, it was clear that evidence relating to fair trial rights was not relevant
to such an enquiry.
MATHOPO AJ
10
Geuking, which was a challenge against the constitutionality of section 10(2) of
the Extradition Act, and the certificate that it provided for, held the following:
“In considering the constitutionality of section 10(2) [of the Extradition Act] it must be
borne in mind that:
. . .
(e) the person concerned is entitled to give and adduce evidence at the
enquiry which would have a bearing not only on the Magistrate’s
decision under section 10, but could have a bearing on the exercise by
the Minister of the discretion under section 11.”12
The DPP submitted that a contextual reading of the judgment revealed that what
was meant by the Court is that there should be no limitation placed on the evidence to
be adduced in relation to a sec tion 10(2) certificate, albeit that the challenge and
evidence might also relate to aspects of the certificate which were unassailable before a
magistrate, and which would only become relevant to the Minister’s decision in terms
of section 11. In such an instance, the leading of evidence relating to section 11 would
be admissible, as long as the purpose for which it was being led related to the section 10
enquiry, and the establishment of the two jurisdictional facts. That was what was meant
by the Court having held that a person was entitled to give and adduce evidence which
“could have a bearing on the exercise by the Minister of the discretion under
section 11”, so the DPP submitted.
In a similar fashion, the DPP submitted that the High Court’s understanding and
application of Garrido was incorrect. In Garrido, the good faith of the “appropriate
authority in the requesting State” , in respect of the certificate issued in terms of
section 10(2) of the Extradition Act, was be ing challenged. Therefore, the argument
continued, Garrido was distinguishable from the current case, as it concerned the
establishment of the second jurisdictional fact in section 10(1), and not the first as in
this case. The Supreme Court of Appeal in Garrido held:
12 Geuking above n 4 at para 42(e).
MATHOPO AJ
11
“The Magistrate’s power to make such report to the Minister as he or she may deem
necessary is clearly designed to enable him or her to give assistance to the Minister in
regard to the matters on which the Minister has to exercise a discreti on under
section 11. That being so, it is clearly appropriate that the person whose surrender to
the foreign State making the request is sought should be entitled to place material
before the Magistrate holding the enquiry in the hope of persuading the Magistrate to
include material in a report to be submitted to the Minister which may induce the
Minister to order that the person concerned not be surrendered on one or other of the
grounds set forth in section 11(b).”13
The DPP submitted that the above paragraph should not be dislodged from the facts of
that particular case, and should be read in context.
The D PP also proceeded to highlight the practical implicati ons of accepting
evidence that wa s not relevant to the section 10 enquiry. In doing so, the DPP
questioned the role of the magistrate in such an instance where he or she would be
unable to make pronouncements on fair trial rights in a foreign jurisdiction and where
the DPP would be unable to challenge such evidence. In argument, the DPP suggested
that it would be the equivalent of having the magistrate turn on a recorder and switch it
off again once the evidence had been adduced. The DPP stressed that this would have
the effect of overburdening the record of proceedings, which would have the opp osite
effect of assisting the Minister in coming to his decision. I t was further submitted that
Mr Tucker would have the opportunity to make written representations to the Minister
subsequent to the section 10 enquiry. It was contended by the DPP, in conclusion, that
oral evidence was only adduced before a magistrate in instances where such evidence
could be challenged and findings on the credibility of such evidence could be made,
which could not be done in the case of evidence relating to section 11 of the Extradition
Act.
13 Garrido above n 7 at para 25.
MATHOPO AJ
12
Mr Tucker’s submissions
Mr Tucker submitted that this application raised three issues, namely:
(a) whether a magistrate was obliged to admit evidence relating to a final
decision to extradite;
(b) whether the High Court was permitted to uphold the Magistrates’ Court’s
committal order, and simultaneously order the re-opening of proceedings
to allow him to adduce further evidence; and
(c) what would be considered a just and equitable remedy in the
circumstances?
Mr Tucker contended that Geuking and Garrido authoritatively state d that a
magistrate holding a section 10 extradition enquiry was under a duty to admit evidence
relating to the Minister’s final decision to surrender in terms of section 11. He placed
emphasis on Geuking, where it was held that the person concerned was entitled to give
and adduce evidence relating to surrender at the section 10 enquiry. 14 He further
submitted that Garrido found that, because section 9(2) of the Extradition Act required
section 10 enquiries to proceed in a manner in which a preparatory examination was to
be held, a person potentially liable to be surrendered had the right to lead evidence with
respect to charges put to him by the foreign State. Mr Tucker also su bmitted that
Garrido held that the aim of the extradition enquiry, and the magistrate’s subsequent
section 10(4) report, was to include material to convince the Minister to make an order
not to surrender the person sought. In argument, it was further subm itted that it would
ease the process for the Minister to receive a section 10(4) report containing evidence
relating to his section 11 decision, as opposed to a dossier filled with representations.
Mr Tucker submit ted further that the DPP’s reliance on Robinson II was
incorrect, as that matter was concerned with whether a magistrate could decline to
commit a person to prison awaiting the final decision of the Minister for reasons relating
14 Geuking above n 4 at para 42(e).
MATHOPO AJ
13
to the person’s fair trial rights in the foreign State. Mr Tucker submitted that this Court
in Robinson II did not pronounce on whether or not evidence could be led at a section
10 enquiry , which was relevant to the Minister’s final decision to surrender.
Additionally, it did not hold that a magistrate was precluded from admitting evidence
relating to a final decision to surrender. This Court only held that a magistrate should
not discharge a person liable to be surrendered for reasons envisaged in section 11.
Therefore, Mr Tucker concluded, Robinson II and Geuking were compatible.
With respect to the High Court’s order confirming his committal, but re-opening
the extradition proceedings nonetheless, Mr Tucker submitted that the Magistrate had
no power to consider further evidence once a committal was made, because the leading
of evidence had to occur in the proceedings of the section 10 enquiry. There could be
no additional, separate or self -standing hearing. Section 9(1) also envisage d a single
enquiry, which was confirmed by section 9(2). Finding ot herwise would mean that
magistrates have undefined discretion to preside over proceedings for purposes of
producing a section 10(4) report.
Finally, Mr Tucker submitted that the order sought by the DPP could be granted
only because the Magistrate was not empowered to hear further evidence when a valid
order committing him to prison existed. In respect of the issue of a just and equ itable
remedy, Mr Tucker submitted that he had a right to adduce evidence and advance
arguments to the Minister in relation to his final decision to surrender him. Mr Tucker
also had the option of taking the Minister’s dec ision on judicial review if he wa s not
satisfied with the outcome.
Jurisdiction and leave to appeal
Extradition proceedings by their very nature implicate the sought person’s rights
in the Bill of Rights. This matter concerns the proper interpretation and application of
MATHOPO AJ
14
section 10 of the Extradition Act which raises a constitutional issue as it implicates
sections 12 and 35 of the Constitution.15 Thus, it engages this Court’s jurisdiction.
15 Id at para 1. Section 12 of the Constitution provides:
“(1) 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.
(2) Everyone has the right to bodily and psychological integrity, which includes the
right—
(a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments without their
informed consent.”
Section 35 of the Constitution states the following:
“(1) Everyone who is arrested for allegedly committing an offence has the right—
(a) to remain silent;
(b) to be informed promptly—
(i) of the right to remain silent; and
(ii) of the consequences of not remaining silent;
(c) not to be compelled to make any confession or admission that could be used
in evidence against that person;
(d) to be brought before a court as soon as reasonably possible, but not later
than—
(i) 48 hours after the arrest; or
(ii) the end of the first court day after the expiry of the 48 hours, if the
48 hours expire outside o rdinary court hours or on a day which is
not an ordinary court day;
(e) at the first court appearance after being arrested, to be charged or to be
informed of the reason for the detention to continue, or to be released; and
(f) to be released from det ention if the interests of justice permit, subject to
reasonable conditions.
(2) Everyone who is detained, including every sentenced prisoner, has the right—
(a) to be informed promptly of the reason for being detained;
(b) to choose, and to consult wit h, a legal practitioner, and to be informed of
this right promptly;
(c) to have a legal practitioner assigned to the detained person by the state and
at state expense, if substantial injustice would otherwise result, and to be
informed of this right promptly;
MATHOPO AJ
15
Furthermore, the question whether the magistrate can receive evidence relating
to the sought person’s fair trial rights in the foreign State raises an arguable point of law
(d) to challenge the lawfulness of the detention in person before a court and, if
the detention is unlawful, to be released;
(e) to conditions of detention that are consistent with human dignity, including
at least exercise and the provision, at state expense, of adequate
accommodation, nutrition, reading material and medical treatment; and
(f) to communicate with, and be visited by, that person’s—
(i) spouse or partner;
(ii) next of kin;
(iii) chosen religious counsellor; and
(iv) chosen medical practitioner.
(3) Every accused person has a right to a fair trial, which includes the right—
(a) to be informed of the charge with sufficient detail to answer it;
(b) to have adequate time and facilities to prepare a defence;
(c) to a public trial before an ordinary court;
(d) to have their trial begin and conclude without unreasonable delay;
(e) to be present when being tried;
(f) to choose, and be represented by, a legal practitioner, and to be info rmed of
this right promptly;
(g) to have a legal practitioner assigned to the accused person by the state and at
state expense, if substantial injustice would otherwise result, and to be
informed of this right promptly;
(h) to be presumed innocent, to remain silent, and not to testify during the
proceedings;
(i) to adduce and challenge evidence;
(j) not to be compelled to give self-incriminating evidence;
(k) to be tried in a language that the accused person understands or, if that is not
practicable, to have the proceedings interpreted in that language;
(l) not to be convicted for an act or omission that was not an offence under
either national or international law at the time it was committed or omitted;
(m) not to be tried for an offence in r espect of an act or omission for which that
person has previously been either acquitted or convicted;
(n) to the benefit of the least severe of the prescribed punishments if the
prescribed punishment for the offence has been changed between the time
that the offence was committed and the time of sentencing; and
(o) of appeal to, or review by, a higher court.
(4) Whenever this section requires information to be given to a person, that information
must be given in a language that the person understands.
(5) Evidence obtained in a manner that violates any right in the Bill of Rights must be
excluded if the admission of that evidence would render the trial unfair or otherwise
be detrimental to the administration of justice.”
MATHOPO AJ
16
of general public importance which ought to be considered by this Court. This matter
arises as a result of the decision of the High Court, which seems to be at odds with
decisions of this Court in Geuking and Robinson II. A final decision of this Court is
necessary to resolve the confusion concerning the ambit of the powers of the magistrate
in extradition enquiries. The order of the High Court has also created practical delays
in extradition proceedings which will frustrate the prompt and predictable resolution of
committal proceedings . Th is necessitates this Court’s intervention and the pressing
need that the decision be given as soon as possible. Thus, it is in the interests of justice
that leave to appeal is granted.
Issues for determination
This Court is required to determine whether the High Court was entitled to order
that the committal proceedings in the Magistrates’ Court be re -opened to allow
Mr Tucker to adduce further evidence despite having dismissed both the appeal and
review against his committal order.
Central to this issue is determining whether a magistrate is required to accept
evidence in a section 10 enquiry , which is relevant only to the decision to surrender
taken by the Minister in terms of section 11 of the Extradition Act.
Analysis
Legal framework for extradition
Extradition proceedings are a three-phase process which entail:
(a) an administrative phase initiated by the receipt of the extradition request
by South Africa and the arrest of the person sought;
(b) a judicial phase which requires the holding of an enquiry by a magistrate
to determine whether the person sought should be committed to prison or
discharged; and
MATHOPO AJ
17
(c) an executive phase, which concerns the decision by the Minister on
whether to order the surrender of the person sought.
This Court in Harksen neatly set out the process to be followed in extradition
proceedings, from arrest to surrender, as follows:
“[B]efore the person whose extradition is sought may be surrendered to the foreign
State, the procedures prescribed in the [Extradition] 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 of
the requested person to any person authorised by the foreign State to receive him or
her.”16
Thus, subsequent to an arrest, an enquiry is held in terms of section 9(1), with a finding
for a committal being made in terms of section 10, and the final decision to surrender
lying within the Minister’s discretion in terms of section 11.
Section 9(1) of the Extradition Act requires that any person detained under a
warrant of arrest be brought before a magistrate to hold an enquiry with a view to
surrendering such a person. Section 9(2) and 9(3) set out the procedure and form of
such an enquiry, while sections 10(1) and 12(1), respectively, set out the jurisdictional
facts to be established in the enquiry. Section 9(2)17 requires that the enquiry take the
form of a preparatory examination conducted in criminal proceedings,18 which has now
16 Harksen v President of the Republic of South Africa [2000] ZACC 29; 2000 (2) SA 825 (CC); 2000 (5) BCLR
478 (CC) at para 14.
17 Section 9(2) of the Extradition Act provides:
“Subject to the provisions of this Act the Magistrate holding the enquiry shall proceed in the
manner in which a preparatory examination is to be held in the case of a person charged with
having committed an offence in the Republic and shall, for the purposes of holding such enquiry,
have the same powers, including the power of committing any person for further examination
and of admitting to bail any person detained, as he has at a preparatory examination so held.”
18 See sections 123 to 143 of the Criminal Procedure Act 51 of 1977. See also Kruger “Preparatory Examinations”
in Hiemstra’s Criminal Procedure (2020) at pages 20-2:
MATHOPO AJ
18
fallen into disuse in the practice of public law. 19 Section 9(3) then sets out the type of
evidence which may be received by the magistrate in a section 10(1) enquiry, which
evidence pertains to the person’s prosecution in the foreign State.20
“In the preparatory examination all of the state’s witnesses are called before a Magistrate in the
presence of the accused. The accused may choose to testify but ordinarily does not. The
accused then gets a compl ete version of the state’s case, with ample time to prepare. Should
the state find additional evidence after the conclusion of the preparatory examination, the
accused has to be given the full text thereof otherwise it cannot be used in the trial.”
19 See Shabalala v Attorney-General, Transvaal [1995] ZACC 12;1996 (1) SA 725 (CC); 1995 (12) BCLR 1593
(CC) at para 18.
20 Section 9(3) of the Extradition Act provides:
“Any deposition, statement on oath or affirmation taken, whether or not taken in the presence
of the accused person, or any record of any conviction or any warrant issued in a foreign State,
or any copy or sworn translation thereof, may be received in evidence at any such enquiry if
such document is:
(a)
(i) accompanied by a certificate according to the e xample set out in
Schedule B;
(ii) authenticated in the manner provided for in the extradition
agreement concerned; or
(iii) authenticated by the signature and seal of office—
(aa) of the head of a South African diplomatic or consular
mission or a person in the administrative or professional
division of the public service serving at a South African
diplomatic, consular or trade office in a foreign State or a
South African foreign service officer grade VII or an
honorary South African consul general, vice consul or trade
commissioner;
(bb) of any government authority of such foreign State charged
with the authentication of documents in terms of the law of
that foreign State;
(cc) of any notary public or other person in such foreign State
who shall be shown b y a certificate of any person referred
to in item (aa) or (bb) or of any diplomatic or consular
officer of such foreign State in the Republic to be duly
authorized to authenticate such document in terms of the
law of that foreign State; or
(dd) of a commis sioned officer of the South African National
Defence Force in the case of a document executed by a
person on active service; or
(b) certified as original documents or as true copies or translations thereof by a
judge or Magistrate, or by an officer authorized thereto by one of them, of the
associated State concerned, in the case of an enquiry with the view to the
extradition of a person to an associated State.”
MATHOPO AJ
19
This Court in Geuking summarised the manner in which an enquiry before the
magistrate is to be held, in terms of section 9 of the Extradition Act, as follows:
“After the process of extradition has been initiated by the issue of a warrant of arrest
by a Magistrate under section 5(1)(a), section 9(1) requires that the arrested person be
brought before him or her as soon as possible for the purpose of holding ‘an enquiry
with a view to the surrender of such person to the foreign State concerned ’. Under
section 9(2) the enquiry ‘shall p roceed in the manner in which a preparatory
examination is to be held’, i.e. a preparatory examination held in terms of Chapter 20
of the Criminal Procedure Act (the CPA). This means that the enquiry must be held in
open court (section 152 of the CPA), su bject to the provisions of section 9(3) of the
Act; the evidence must be led on oath or affirmation (sections 162 and 163 of the CPA);
and oral evidence is subject to cross -examination and re-examination (section 166 of
the CPA). The State first leads evidence and thereafter the person has the opportunity
of making a statement, testifying or calling witnesses (sections 128, 133 and 134 of the
CPA).” 21
As stated earlier, s ection 10(1) of the Extradition Act requires an enquiry into
whether or not a person is liable to be surrendered to a foreign State and committed to
prison pending the Minister’s final decision to surrender.22
Section 10(2) of the Extradition Act provides for a certificate issued by an
appropriate authority in charge of the prosecution, in the foreign State concerned, to be
considered by the magistrate as conclusive proof that there is sufficient evidence to
warrant prosecution in that State. 23 This subsection applies to persons referred to in
section 10(1). The production of a section 10( 2) certificate establishes the second
jurisdictional fact if the certificate is not challenged.
21 Geuking above n 4 at para 13.
22 See [10] above.
23 Section 10(2) of the Extradition Act provides:
“For purposes of satisfying himself or herself that there is sufficient evidence to warrant a
prosecution in the foreign State the Magistrate shall accept as conclusive proof a certificate
which appears to him or her to be issued by an appropriate authority in charge of the prosecution
in the foreign State concerned, stating that it has sufficient evidence at its disposal to warrant
the prosecution of the person concerned.”
MATHOPO AJ
20
Pursuant to an order being made in terms of section 10(1), a magistrate shall, in
terms of section 10(4), forward to the Minister a copy of the record of the p roceedings
together with such report as he or she may deem necessary. 24 Unfortunately, there is
no authority or legislation which details what is required to be included in such a report,
if anything at all. Counsel for both parties conceded as much. There is also no authority
to suggest that the submission of such a report is mandatory. In fact, the words “as he
may deem necessary” suggests that its submission is entirely voluntary or discretionary.
In the section 10 enquiry, the magistrate does not ad judicate on whether it is
unjust or unreasonable to surrender the person sought. A fortiori (from the stronger
argument) the issues relating to fair trial, which Mr Tucker contends ought to have been
considered by the Magistrate, are similarly irrelevant at this stage. This simply means
that it is the role of the Minister to determine whether it is in the interests of justice to
surrender a person sought prior to their extradition.
Once the magistrate has established an appropriate basis for extradition, namely
the fulfilment of the two jurisdictional requirements, it is then left to the Minister,
pursuant to section 11 of the Extradition Act, to determine whether the person sought
may be surrendered. A person sought is entitled to take the decision of the Minister on
review.
Must the Magistrate receive evidence relating to fair trial rights?
What is abundantly clear is that we are not concerned with the magistrate’s
power to consider whether the sought person would have their rights violated if they
were to be extradited. This Court’s decision in Robinson II was unequivocal on that
point when it held that–
24 Section 10(4) of the Extradition Act provides:
“The Magistrate issuing the order of committal shall forthwith forward to the Minister a copy
of the record of the proceedings together with such report as he may deem necessary.”
MATHOPO AJ
21
“an extradition Magistrate conducting an enquiry in terms of s ection 10(1) of the
[Extradition] Act has no power to consider whether the constitutional rights of the
person sought may be infringed upon extradition. That aspect must be considered by
the Minister in terms of s ection 11 of the [Extradition] Act. The correctness or
otherwise of the decision of the Minister to extradite the respondent is subject to
judicial control.”25
What this Court is concerned with is whether the sought person can adduce
evidence relating to her or his fair trial rights in the foreign State , and whether a
magistrate may accept such evidence so that it may be included in either the record of
proceedings or the magistrate’s section 10(4) report to the Minister. The inclusion of
such evidence in either the record or the report would, according to Mr Tucker, assist
the Minister when making his determination on whether or not to surrender him.
In coming to a determination on the above, this Court is required to consider the
alleged conflicting decisions in Geuking, Robinson II and Garrido.
Read in isolation, paragraph 42(e) of Geuking26 may be understood to mean that
a sought person is entitled, in committal proceedings, to adduce evidence affecting her
or his fair trial rights, and that a magistrate is obliged to accept it. When read in context,
however, the above extract takes on a different meaning. What this Court said in the
preceding paragraphs, is the following:
“It follows that this Court is now obliged to decide the constitutionality of section 10(2)
of the Act. I turn to that question.
25 Robinson II above n 9 at para 71.
26 Geuking above n 4 at para 42(e) reads as follows:
“In considering the constitutionality of section 10(2) [of the Extradition Act] it must be borne
in mind that:
. . .
(e) the person concerned is entitled to give and adduce evidence at the enquiry
which would have a bearing not only on the Magistrate’s decision under
section 10, but could have a bearing on the exercise by the Minister of the
discretion under section 11.”
MATHOPO AJ
22
The starting point of this enquiry is to consider the nature of the enquiry which the
Magistrate is obliged to hold under the Act. As appears from para [15] above, in terms
of section 10(1) of the Act the Magistrate must consider the evidence adduced and, in
order to issue a committal warrant, he or she must be satisfied that:
(a) the person brought before him or her is liable to be surrendered to the
foreign State concerned and;
(b) in the case where such person is accused of an o ffence, that there is
sufficient evidence to warrant a prosecution for the offence in the
foreign State.
In a case such as the present, in considering whether the person brought before him or
her is liable to be surrendered, the Magistrate must be satisfied that:
(a) the person who has been brought before him or her is the person sought
by the requesting State;
(b) the President has consented to the surrender of that person under
section 3(2);
(c) the offence in respect of which the person is sought by the foreign State
is an extraditable offence. An ‘ extraditable offence ’ is defined in
section 1 of the Act to mean:
‘any offence which in terms of the law of the Republic and of
the foreign State concerned is punishable with a sentence of
imprisonment or othe r form of deprivation of liberty for a
period of six months or more, but excluding any offence under
military law which is not also an offence under the ordinary
criminal law of the Republic and of such foreign State’;
(d) there is sufficient evidence to warrant a prosecution of the offence in
the foreign State;
(e) if a s ection 10(2) certificate is relied on, that it was issued by an
appropriate authority in charge of the prosecution in the foreign State
concerned.”27
27 Geuking above n 4 at paras 35-7.
MATHOPO AJ
23
It is clear from the quoted paragraphs above that the evidence referred to in
paragraph 42(e) of Geuking relates to the enquiry before the magistrate as described by
this Court in the quoted paragraphs.28 Therefore, the evidence which may be adduced
by the sought person is that which would challenge the evidence adduced by the
prosecuting authority in establishing the jurisdictional facts, set out in section 10, and
as confirmed by this Court in Geuking.
I pause here to emphasise that the evidence referred to above does not relate to
whether the person sought will have a fair trial in the foreign State , nor does it relate
directly to any of the considerations in section 11 of the Extradition Act. The purpose
of adducing evidence in committal proceedings, according to Geuking, is to satisfy the
magistrate that the jurisdictional facts for a surrender, in terms of section 10, have been
met.29 If such evidence were to have a bearing on the exercise of the Minister’s
discretion under s ection 11, it would still be permissible. That is what was meant by
this Court in paragraph 42(e). There is no other manner in which to interpret it, as the
sudden reference to section 11 would otherwise be illogical – given the detailed manner
in which this Court described committal proceedings in the paragraphs preceding
paragraph 42.
The Supreme Court of Appeal’s decision in Garrido concerned a challenge to
Ms Fernandez , the appropriate authority of the requesting State. Again, that matter
concerned a challenge against the section 10(2) certificate produced, and therefore the
establishment of the second jurisdictional fact in a section 10 enquiry. Mr Garrido
sought to lead evidence to show that the request by the United States of A merica was
not made in good faith and, by implication, that the DPP had failed to establish the
second jurisdictional fact. The Supreme Court of Appeal held that it was questionable
whether the good faith determination was an aspect for the Minister’s con sideration
under section 11(b)(iii) of the Extradition Act or the magistrate’s determination because
28 Id.
29 Id.
MATHOPO AJ
24
of its implication on section 10(2). 30 It further held that it was a matter which the
Magistrate could deal with in her report to the Minister, if persuade d to do so. 31 A
reading of the Supreme Court of Appeal’s decision makes it clear that this was a narrow
issue for determination – the evidence which should have been received and formed
part of the record for submission to the Minister. Garrido therefore does not conflict
with this Court’s decision in Geuking as interpreted above.
As stated earlier, it is incontestable that fair trial rights, or any section 11
considerations, may not be considered by a magistrate in committal proceedings, unless
they implicate section 10 . It has now also been firmly established that c ommittal
proceedings are concerned purely with the establishment of the jurisdictional facts in
section 10. It follows that any evidence adduced on fair trial rights, or any section 11
considerations, which are not for purposes of establishing the jurisdictional facts in
section 10, would be irrelevant for purposes of committal proceedings, and therefore
inadmissible. Section 2 of the Civil Proceedings Evidence Act,32 and its sister provision
in the Criminal Procedure Act (CPA),33 provide that “[n]o evidence as to any fact,
matter or thing which is irrelevant or immaterial and cannot conduce to prove or
disprove any point or fact in issue shall be admissible” . Although, extradition
proceedings are sui generis in nature, the provisions in the aforementioned Acts reflect
the general evidentiary rule regarding the admissibility of irrelevant evidence.
A magistrate may therefore neither consider nor receive evidence relating to the
Minister’s section 11 considerations. Any other interpretation would cause practical
difficulties for both the prosecuting authorities and the magistrate, and would unduly
prolong the extradition process.
30 Garrido above n 7 at para 22.
31 Id at para 25.
32 25 of 1965.
33 See section 210 of the Criminal Procedure Act above n 18.
MATHOPO AJ
25
This Court is not seized with the question of the procedure to be followed by the
sought person when bringing evidence relating to her or his fair trial rights before the
Minister, thus it would be inappropriate of us to make a finding in that regard. What I
do find is that the Magistrate is not required to act as a reservoir for evidence with which
he cannot deal, simply because section 11 does not expressly state the procedure for
making representations before the Minister. This seems to me to be an oversight which
the Legislature may have to correct.
May the High Court order the re-opening of committal proceedings?
This appeal is against paragraph 3 of the High Court order. Having found that
the High Court was incorrect in deciding that a sought person may adduce evidence, in
committal proceedings before a magistrate, which pertain solely to the Minister’s
considerations in terms of section 11 of the Extradition Act, it follows that the re -
opening of proceedings before the magistrate, on that basis, is impermissible.
Conclusion
These findings do not mean that Mr Tucker has no remedy. Both parties are
agreed that a person liable to be surrendered has a right to make representations to the
Minister in respect of his decision to surrender. I am mindful of the fact that section 11
is silent on the procedure to be followed when making representations to the Minister,
and of the absence of regulations in this regard, but this requires a separate challenge to
the one before us. For purpose s of this appeal there is no doubt that Mr Tucker is
entitled to make such representations to the Minister, and that , should he fail to accept
or consider them properly , the Minster’s decision would be subject to review by the
courts.34
I would uphold the appeal, set aside paragraph 3 of the High Court’s order and
replace it with the following:
34 Robinson II above n 9 at para 71.
MATHOPO AJ / THERON J
26
"Mr Tucker is to remain in prison pending the decision of the Minister of Justice and
Correctional Services as to whether he should be surrendered to the United Kingdom.”
As a fina l word, I would like to take the opportunity to thank the
Cape Bar Council for appointing Mr Katz and Mr Perumalsamy to represent Mr Tucker
on a pro bono basis. We are greatly indebted to it. A word of gratitude is likewise
extended to Mr Katz and Mr Perumalsamy for promptly and ably assisting the Court in
the preparation of written submission s and presentation of oral argument before this
Court.
THERON J (Khampepe J, Madlanga J, Mhlantla J, Tshiqi J and Victor AJ concurring):
Introduction
I have had the benefit of reading the well -crafted judgment by my Brother
Mathopo AJ. Regrettably, I do not agree that paragraph 3 of the High Court’s order
should be set aside, for two reasons. First, case law and the scheme of the Extradit ion
Act, properly interpreted, make it clear that a magistrate is obliged to admit evidence
relating to the Minister’s surrender decision during committal proceedings,
notwithstanding the fact that the enquiry is solely concerned with the committal of the
sought person. Secondly, contrary to what the parties c ontend, it was open to the
High Court to re -open the proceedings before the Magistrate in order to receive
evidence relevant to the Minister’s surrender decision.
The scheme of the Extradition Act
Extradition is a process whereby one sovereign State (requesting State) requests
of another sovereign State (requested State) the surrender of an individual (sought
person) to the requesting State. The sought person must be within the requested State’s
territory and must be sought for the purposes of trial and sentencing in the requesting
THERON J
27
State.35 South Africa enacted the Extradition Act to prescribe domestic procedures
before a person may lawfully be extradited from South Africa. All extradition requests
to South Af rica are processed domestically through the provisions of the
Extradition Act.36
The Extradition Act prescribes different processes for extradition depending on
whether a requesting State is a foreign or an associated State. 37 The United Kingdom,
the requesting State in this matter, is a foreign State.
If the requesting State is a foreign State then the process for surrendering a person
to that requesting State can be divided into three phases. 38 First, there is the
administrative phase, which is initiated by receipt of the extradition request,39 followed
by the issuing of an arrest warrant, 40 and the arrest of the person sought. 41 The
administrative phase of Mr Tucker’s extradition is not in issue in these proceedings.
35 President of the Republic of South Africa v Quagliani [2009] ZACC 1; 2009 (2) SA 466 (CC); 2009 (4) BCLR
345 (CC) at para 1.
36 Harksen above n 16 at para 4. In Harksen this Court explained that extradition operates at both an international
and domestic level:
“An extradition procedure works both on an international and a domestic plane. Although the
interplay of the two may not be severable, they are 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
between 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 arrest 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.”
37 Section 1 of the Extradition Act defines a foreign State as including any for eign territory. An associated State
is any foreign State in respect of which section 6 of the Act applies. There are three requirements for a State to
be an associated State, one of which is that the State must be in Africa.
38 Carolissen v Director of Public Prosecutions [2016] 3 All SA 56 (WCC) at para 69. If the requesting State is
an associated State, then the second and third phases are combined into one to expedite the extradition process.
See section 12 of the Extradition Act.
39 Section 4 of the Extradition Act.
40 Id sections 5 and 7.
41 Id section 9.
THERON J
28
The second phase is the judicial phase .42 An extradition enquiry is held by a
magistrate in terms of section 10, read with section 9, of the Extradition Act. The
judicial phase begins once the person sought is arrested. Every person arrested in terms
of the Extraditio n Act must be brought be fore a m agistrate as soon as possible.
The magistrate must, as soon as possible (“forthwith”) hold an enquiry “with a view to
the surrender” of the person to the requesting State. 43 Under section 9(2) the enquiry
shall proceed in the manner in which a preparatory examination in terms of Chapter 20
of the CPA is to be held.44 In Geuking, this Court confirmed that, among other things,
the person concerned is entitled to testify and adduce evidence in such an enquiry. 45
A debate as to the nature and content of this evidence is at the heart of this matter.
Section 10 stipulates that at the conclusion of the enquiry, afte r the hearing of
evidence, the m agistrate must either commit or discharge the person. 46 The
42 Minister of Justice v Additional Magistrate, Cape Town 2001 (2) SACR 49 (C) at 61C.
43 Section 9(1) of the Extradition Act.
44 See Geuking above n 4 at para 13. In Geuking, this Court held that the reference to preparatory examinations
in the Extradition Act means that the enquiry must be held in open court (section 152 of the CPA); the evidence
must be led on oath or affirmation (sections 162-3 of the CPA); and oral evidence is subject to cross-examination
and re-examination (section 166 of the CPA). The State first leads evidence and thereafter the person has the
opportunity to make a statement, testify or call witnesses (sections 128, 133 and 134 of the CPA).
45 Geuking id at para 38.
46 Section 10 of the Extradition Act reads:
“(1) If upon consideration of the evidence adduced at the enquiry referred to in
section 9(4)(a) and (b)(i) the Magistrate finds that the person brought before him or
her is liable to be surrendered to the foreign State concerned and, in the case where
such person is accused of an offence, that there is sufficient evidence to warrant a
prosecution for the offence in the forei gn State concerned, the Magistrate shall issue
an order committing such person to prison to await the Minister's decision with regard
to his or her surrender, at the same time informing such person that he or she may
within 15 days appeal against such order to the Supreme Court.
(2) For purposes of satisfying himself or herself that there is sufficient evidence to warrant
a prosecution in the foreign State the Magistrate shall accept as conclusive proof a
certificate which appears to him or her to be issued by an appropriate authority in
charge of the prosecution in the foreign State concerned, stating that it has sufficient
evidence at its disposal to warrant the prosecution of the person concerned.
(3) If the Magistrate finds that the evidence does not war rant the issue of an order of
committal or that the required evidence is not forthcoming within a reasonable time,
he shall discharge the person brought before him.
(4) The Magistrate issuing the order of committal shall forthwith forward to the Minister
a copy of the record of the proceedings together with such report as he may deem
necessary.”
THERON J
29
requirements that must be satisfied before a magistrate must commit the sought person
are set out in section 10(1), which provides that a magistrate must be satisfied that two
conditions are fulfilled before a committal order is made. The person must be liable for
surrender to the foreign State concerne d47 and, where the person is accused of an
offence, there must be sufficient evidence to warrant a prosecution for the offence in
the foreign State. The first requirement – liability for extradition – is satisfied where
the person is (a) accused or convicted of an extraditable offence that was (b) committed
within the jurisdiction of the foreign State. Section 1 of the Extradition Act defines
“extraditable offence” as “any offence which in terms of the law of the Republic and of
the foreign State concerned is punishable by a sentence of imprisonment or other form
of deprivation of liberty for a period of six months or more”.
In relation to the second requirement, that there must be sufficient evidence to
warrant a prosecution, the standard is set out in section 10. The magistrate shall accept
as conclusive proof a certificate issued by an appropriate authority in charge of the
prosecution in the foreign State concerned, stating that it has sufficient evidence at its
disposal to warrant the prosecution of t he requested person. 48 If the magistrate finds
that the evidence does not warrant the issue of an order of committal or that the required
47 Liability is determined in terms of section 3 of the Extradition Act. Section 3 states:
“(1) Any person accused or convicted of an offence included in an extradi tion 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 of fence was
committed before or after the commencement of this Act or before or after the date
upon which the agreement comes into operation and whether or not a court in the
Republic has jurisdiction to try such person for such offence.
(2) Any person accus ed or convicted of an extraditable offence committed within the
jurisdiction of a foreign State which is not a party to an extradition agreement shall be
liable to be surrendered to such foreign State, if the President has in writing consented
to his or her being so surrendered.
(3) Any person accused or convicted of an extraditable offence committed within the
jurisdiction of a designated State shall be liable to be surrendered to such designated
State, whether or not the offence was committed before or after the designation of such
State and whether or not a court in the Republic has jurisdiction to try such person for
such offence.”
48 Id at section 10(3).
THERON J
30
evidence is not forthcoming within a reasonable time, the sought person must be
discharged.49
A section 10 extradition enquiry is limited to establishing these two jurisdictional
facts. If they are established, the magistrate shall commit the sought person to prison,
pending the Minister’s decision to surrender the person. Unlike in respect of extradition
enquiries held in terms of section 12 read with section 9 (where extradition has been
requested by an associated State), the magistrate does not consider whether to surrender
the person before them. The enquiry before the magistrate involves est ablishing
liability for extradition and sufficient evidence warranting prosecution in the foreign
State50 and the section 10 decision is solely whether to commit or discharge. The
committal determination is “a narrow and specific issue” that does not “invo lve
deliberation on human rights issues” or “whether it is unjust or unreasonable to
surrender the applicant”. 51 These are questions that are relevant to the Minister’s
decision to surrender the sought person, which is made in terms of section 11 (surrender
decision).
Whenever a magistrate makes a committal order, she is required in terms of
section 10(4) to forward a copy of the record of the proceedings, together with any
report that she may deem necessary, to the Minister. 52 The purpose and content of the
report contemplated by section 10(4) is also at the crux of this application.
The third phase of an extradition to a foreign State is the executive phase. The
section 10 enquiry ends after a m agistrate issues a committal order. 53 The person is
49 Id.
50 Robinson II above n 9 at para 2.
51 Dugard International Law 5 ed (Juta & Co Ltd, Cape Town 2019) at 327.
52 Section 10(4) of the Extradition Act reads:
“The magistrate issuing the order of committal shall forthwith forward to the Minister a copy
of the record of the proceedings together with such report as he may deem necessary.”
53 The committed person may, by virtue of section 13, appeal against a committal order and apply to the Magistrate
for bail pending the appeal.
THERON J
31
committed to prison pending the Minister’s decision to surrender her under section 11.
The Minister may decide to surrender the sought person, 54 or decline to surrender the
committed person for various reasons55 and on certain conditions.56 If a committal order
has not been issued by the magistrate, the Minister has no power to act and that is the
end of the matter. The Minister may only order the surrender of the sought person if
that person has been “committed to prison under section 10”.57
Background
The facts of this matter need only be stated briefly as they are largely common
cause. On 4 October 2000, Mr Tucker was convicted in absentia of various sexual
offences in the United Kingdom by the Swindon Crown Court. He was sentenced in
absentia to eight years’ imprisonment. Shortly before his conviction and sentencing,
Mr Tucker left the United Kingdom for South Africa. On 29 May 2002, the Court of
Appeal (England and Wales) quashed his conviction and ordered a re -trial. On
26 February 2016, an indictm ent was issued against him containing charges similar to
those he had been convicted of on 4 October 2000. Another indictment was also issued
in respect of further allegations of sexual assault that arose after the Court of Appeal
ordered a re-trial.
54 Section 11(a) of the Extradition Act.
55 Section 11(b) of the Extradition Act provides that the Minister may not surrender the sought person:
(i) where criminal proceedings against such person are pending in the Republic, until such
proceedings are concluded and where such proceedings result in a sentence of a term
of imprisonment, until such sentence has been served;
(ii) where such person is serving, or is about to serve a sentence of a term of imprisonment,
until such sentence has been completed;
(iii) at all, or before the expiration of a period fixed by the Minister, if he or she is satisfied
that by reason of the trivial nature of the offence or by reason of the surrender not being
required in good faith or in the interests of justice, or that for any other reason it would,
having regard to the distance, the facilities for communication and to all the
circumstances of the case, be unjust or unreasonable or too severe a punishment to
surrender the person concerned; or if he or she is satisfied that the person concerned
will be prosecuted or punished or prejudiced at his or her trial in the foreign State by
reason of his or her gender, race, religion, nationality or political opinion.”
56 See for example Mohamed v President of the Republic of South Africa (Society for the Abolition of the Death
Penalty in South Africa Intervening) [2001] ZACC 18; 2001 (3) SA 893 (CC); 2001 (7) BCLR 685 (CC) at
para 41.
57 Section 11(a) of the Extradition Act.
THERON J
32
In March 2016, Mr Tucker was arrested in South Africa. A new indictment, akin
to the 30 May 2002 one, was issued by the Bristol Crown Court on 31 March 2016. The
United Kingdom then formally requested his extradition on 19 April 2016, attaching to
its request both the new indictment from the Bristol Court and the indictment with the
further allegations from the North Avon Court. On 13 October 2017, section 10
proceedings commenced before the Cape Town Magistrates’ Court. During these
proceedings, Mr Tucker attempted to lead evidence relating to the fairness and legality
of the trial that he faced in the United Kingdom. The Magistrate refused to admit any
of this evidence. The Magistrate was of the view that the issue of trial fairness in the
United Kingdom was for the Minister to decide on when making his decision under
section 11. On 10 November 2017, the Magistrate ordered Mr Tucker’s committal.
Mr Tucker brought applications to appeal and review the Magistrate’s decision.
The High Court dismissed the appeal and review but nevertheless held, invoking this
Court’s decision in Robinson II and the Supreme Court of Appeal’s decision in Garrido,
that the Magistrate was obliged to allow Mr Tucker to lead evidence relating to his
surrender. The High Court granted an order “re -opening” the proceedings to allow
Mr Tucker to lead evidence relating to surrender without setting aside the committal
order. It is against this aspect of the High Court’s order that the DPP appeals.
Issues
The validity of the committal proceedings and committal order is not directly
before this Court. At issue is whether the Magistrate’s failure to admit Mr Tucker’s
evidence re lating to surrender was an irregularity and, if it was, what remedy the
High Court ought to have granted. There are therefore three questions to answer. First,
in the judicial phase of the extradition process (which is concerned with committal or
discharge) is a magistrate obliged to admit evidence relating to the sought person’s
surrender (which is the concern of the executive phase)? Secondly, may a High Court
uphold a committal order on appeal or review but nonetheless order that the proceedings
THERON J
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be “re-opened” to hear evidence relating to a sought person’s surrender? Thirdly, what
would be a just and equitable remedy?
Must the Magistrate admit evidence relating to the sought person’s surrender?
Case law
The DPP argues that the Magistrate was not und er a duty to hear evidence
relating to the surrender decision. The mainstay of its case is that this Court’s decision
in Robinson II prohibits a magistrate from considering issues related to the surrender
decision. Mr Tucker attacks the DPP’s reliance on Robinson II and, in addition, argues
that the Magistrate was instead bound by the holdings in Geuking and Garrido, which
he says affirmed that the Magistrate had a duty to allow Mr Tucker to lead evidence
relating to his surrender.
The DPP submits that Robinson II is author ity for the proposition that a
magistrate conducting committal proceedings is not obliged, or even permitted, to admit
evidence relating to the surrender decision. It accepts that Robinson II is silent as to the
question of evidence at a section 10 enquiry, but maintains that “the judgment quite
clearly defines what is relevant to such enquiry and what is justiciable before such an
enquiry”. The first judgment endorses this submission. 58 According to the first
judgment, and on its unde rstanding of Robinson II , a magistrate is prohibited from
considering factors pertaining to surrender.
I disagree. The two primary issues determined by this Court in Robinson II were
(a) whether the extradition Magistrate or the Minister had the power to consider whether
a sought person’s constitutional rights would be violated if she is extradited and
(b) whether an extradition magistrate should discharge a person sought and preclude the
Minister from making a decision to extradite if there is a danger that the fair trial rights
58 First judgment at [48].
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of that person would be violated upon extradition. 59 Yacoob J, writing for this Court,
described the legislative scheme of extradition under the Extradition Act:
“The scheme of the Act makes it quite clear that the question whether a person sought
to be extradited will become the victim of an unfair trial as a result of the extradition
must be weighed in the equation at the time when consideration is being given to
whether there should be a surrender. It is premature to take this factor into account any
earlier.”60
Robinson II affirmed that section 10(1) concerns liability for surrender and
committal to prison pending the Minister’s decision to surrender. This Court did not
hold that a magistrate is precluded from receiving evidence relating to surrender. It held
that it was beyond the power of a magistrate to discharge a sought person who is liable
for extradition for reasons envisaged in section 11, which are relevant to the surrender
decision. That is the domain of the Minister.
Robinson II did not pronounce on whether evidence led at a section 10 enquiry
may concern issues that are relevant to the sought person’s surrender. The crux of this
Court’s decision related to whether a magistrate can decline to commit a sought person
for reasons relating to fair trial rights in the foreign State. Far from disposing of
Mr Tucker’s case, the ratio decidendi (reason or rationale for the judgment) in
Robinson II dealt with a question that simply does not arise in this matter. Mr Tucker
does not suggest that once evidence relating to the surrender decision is received by the
magistrate, the magistrate ought to act on that evidence and refuse to order his committal
in terms of section 10. His case is simply that the magistrate was obliged to receive that
evidence.
In Geuking, the constitutionality of section 10(2) of the Extradition Act was
challenged. As mentioned, section 10(1) of the Extradition Act provides that where a
59 Robinson II above n 9 at para 17.
60 Id at para 52.
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35
sought person is accused of committing an offence (as opp osed to having been
convicted), there must be sufficient evidence to warrant a prosecution for the offence in
the foreign State before a committal order can be made. The sufficiency of evidence
requirement in section 10(1) does not apply to extradition re quests for convicted
persons — only for accused persons. Because this requirement is essentially an issue
of foreign law, the Act in section 10(2) provides that, for the purpose of satisfying
herself that there is sufficient evidence to warrant a prosecution in the foreign State, the
magistrate must accept as conclusive proof a certificate issued by the appropriate
authority in the requesting State stating that it has sufficient evidence at its disposal to
warrant the prosecution of the person concerned. The certificate is commonly known
as a section 10(2) certificate. The applicant in Geuking argued that obliging the
Magistrate to accept the section 10(2) certificate as conclusive proof violated his rights
to a fair public hearing, a fair trial, not to b e deprived of freedom arbitrarily or without
just cause, and undermined the independence of the Judiciary.
This Court held that section 10(2) was not unconstitutional, for a number of
reasons.61 The reason most relevant to the current matter is the following:
61 In Geuking above n 4 at para 42 this Court held that in considering the constitutionality of section 10(2) it must
be borne in mind that:
“(a) the proceedings before the magistrate do not constitute a trial. In the event of the
surrender of the person, his or her trial will be held in the foreign state. That, after all,
is the purpose for which the extradition is sought;
(b) if the magistrate finds that the person is liable to be surrendered to the foreign state,
the person has a right of appeal to the High Court;
(c) if there is no a ppeal or if the decision of the magistrate is confirmed on appeal, the
record of the proceedings together with su ch report as the magistrate may deem
necessary must be forwarded to the Minister;
(d) the Minister is then required to exercise a discretion un der section 11 of the Act and
notwithstanding the finding of the magistrate, may refuse the surrender on any one or
more of the grounds specified in that section of the Act;
(e) the person concerned is entitled to give and adduce evidence at the enquiry wh ich
would have a bearing not only on the magistrate’s decision under section 10, but could
have a bearing on the exercise by the Minister of the discretion under section 11.”
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“[T]he person concerned is entitled to give and adduce evidence at the enquiry which
would have a bearing not only on the magistrate’s decision under section 10, but could
have a bearing on the exercise by the Minister of the discretion under section 11.”62
The DPP contends that this pronouncement was meant to be limited to
extradition proceedings involving a section 10(2) certificate confirming that there was
sufficient evidence in the foreign state to justify a prosecution. In support of this
contention, reliance was placed on the statement in Geuking that “in the exercise of his
discretion under section 11 of the Act, the Minister might well be obliged to consider
an attack made in good faith against the conclusion of the foreign authority containe d
in the certificate”. 63 This contention cannot be sustained. This is where I part ways
with the first judgment.
The thrust of the DPP’s submissions in oral argument seemed to be that the
safeguard referred to by this Court in the statement cited above w as simply that the
sought person would be entitled to lead evidence relating to the section 10(2) certificate
that might also have a bearing on the Minister’s surrender decision under section 11.
The point, it seems, is that the presumption in section 10( 2), which binds the
magistrate’s committal decision, does not bar the sought person from leading evidence
regarding aspects of the section 10(2) certificate that will be relevant to the Minister’s
decision. In effect, this would lessen the presumption’s i ntrusion into the sought
person’s fair trial rights because the sought person has an opportunity to lead evidence
relevant to the Minister’s determination, which seeks to impugn the section 10(2)
certificate.
The first difficulty the DPP faces is that in Geuking this Court refers to
“evidence” generally and not “evidence relating to the section 10(2) certificate” in
particular. The rationale that a person could give and adduce evidence at an enquiry,
which could have a bearing on the manner in which the Minister exercises his discretion
62 Id.
63 Id at para 46.
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37
under section 11, was not meant, and could not have been meant, to be limited to
extradition proceedings involving evidence relating to a section 10(2) certificate. This
Court was making a finding about section 10 proceedings generally.
Restricting the Geuking holding to evidence that is relevant to the Minister’s
surrender decision, which also relates to the section 10(2) certificate, also gives rise to
two anomalies. The first is that it would allow accused persons to lead evidence relevant
to surrender whereas convicted persons would not be allowed to lead any evidence
relating to surrender (since a section 10(2) certificate does not come into play where the
sought person has been convicted). The second is that it crea tes an unprincipled
differentiation between evidence that is relevant to both surrender and the section 10(2)
certificate, on the one hand, and evidence that is relevant to surrender only, on the other.
Both classes of evidence are legally irrelevant to the m agistrate’s decision and cannot
be considered by the magistrate (since the section 10(2) certificate is conclusive proof).
While it may be practical for a sought person at a section 10 enquiry to lead evidence
relating to surrender which concerns the section 10(2) certificate, there is no legal basis
for allowing this evidence to be lead at a section 10 enquiry while all other evidence
relevant to surrender cannot.
The DPP appears to offer another, less restrictive interpre tation of Geuking,
which is that this Court had in mind evidence relating to the section 10 enquiry more
generally that could also be relevant to the Minister’s surrender decision. The rule
emerging from this would be that a sought person is entitled to lead and adduce evidence
relating to the Minister’s surrender decision, provided it is also relevant to the section 10
enquiry (and not just the section 10(2) certificate).
But even if we widen the DPP’s interpretation of Geuking in this way, it comes
up against the language used by this Court. The use of the conjunction “but” (“which
would have a bearing not only on the magistrate’s decision under section 10, but could
have a bearing on the exercise by the Minister of the discretion”) calls for a disjunctive
reading that separates the first part of the sentence, which deals with evidence relevant
THERON J
38
to the section 10 enquiry, and the second part of the sentence, which deals with evidence
relevant to the Minister’s decision. The effect is that the sought pers on is entitled to
lead and adduce evidence that is relevant to the committal enquiry and, equally, the
sought person is entitled to lead and adduce evidence that is relevant to the Minister’s
decision.
In oral argument, counsel for the DPP was pressed to explain why this Court
should prefer a narrow interpretation of Geuking. Counsel’s submissions revealed that
at the heart of the DPP’s case is that an “all -in evidence” interpretation of Geuking
should be avoided because it would lead to significant pract ical difficulties. But even
if an expansive reading of Geuking would burden the committal enquiry with a greater
volume of evidence, I do not agree that the magistrate would have to remain supine and
allow copious amounts of irrelevant evidence to burden the record. Why? Because,
while the m agistrate does not have the power to consider aspects that should be
considered by the Minister when making the committal decision, it does not follow that
the magistrate cannot refuse to admit evidence that is totall y irrelevant to the grounds
listed in section 11. If the Extradition Act, per this Court’s interpretation in Geuking,
allows the sought person to adduce evidence relevant to surren der, it would be absurd
if the magistrate were not able to determine whether the evidence is at least relevant to
the surrender decision in terms of section 11.
Finally, I agree with the Supreme Court of Appeal’s conclusion in Garrido that
the statement about evidence in Geuking was not obiter because it formed part of this
Court’s reasons for concluding that the subsection is not unconstitutional. Those
reasons, including the statement about evidence, were part of the judgment’s
ratio decidendi. It follows that the Magistrate in this case was bound by the Geuking
holding.
This reading of Geuking does not bring the judgment into conflict with
Robinson II. Again, Robinson II holds that the reasons for discharge are narrow: they
relate only to liability for surrender as defined in the Act. Geuking holds that, despite
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the magistrate’s discretion being narrow, a sought person is entitled to lead evidence
beyond the issue of liability for surrender. The evidence can be included in the
magistrate’s section 10(4) report, which is then forwarded to the Minister.
This Court’s find ing and reasoning in Geuking was followed by the Supreme
Court of Appeal in Garrido.64 In Garrido, the sought person had been prevented by the
Magistrate from adducing evidence to show that the request by the United States was
not made in good faith. 65 This evidence challenged whether a certain official was an
“appropriate authority in the requesting State” and was aimed at revealing the “paucity
of credible evidence” which the prosecution in the United States had available to lead
against him.66 The Supreme Court of Appeal, following Geuking, found that the sought
person was entitled to lead this evidence at the committal enquiry, notwithstanding the
fact that it related to surrender under section 11. 67 The Court concluded that “the
magistrate failed to obs erve the procedural requirements of audi alteram partem , and
that the order committing the appellant should, for this reason, be set aside”.68
As with Geuking, the DPP does not argue that Garrido is wrong. Instead, the
DPP argues that Garrido, like Geuking, is distinguishable from this case and th erefore
was not binding on the M agistrate in this case. The DPP argues that the finding in
Garrido is limited. It submits that the evidence sought to be led by Garrido related to
whether the jurisdictional fact in section 10(2) of the Extradition Act had been
established and formed the basis for the further allegati on of a prosecution made in
bad faith, which was an issue the Minister was enjoined to consider. Therefore, even
64 Garrido above n 7 at paras 22-3.
65 Id at paras 17, 18 and 22.
66 Id at paras 17-8.
67 Id at para 28.
68 Id at para 27. The question of whether a Magistrate’s refusal to allow a sought person to adduce evidence
relevant to surrender is not before this Court because Mr Tucker has not sought to appeal the High Court’s
dismissal of his application to review the Magistrate’s refusal to allow the evidence. We leave open the question
whether the Supreme Court of Appeal was correct to set aside the committal order on that basis. We endorse the
reasoning in Garrido that, in the context of a section 10 committal enquiry, a Magistrate is obliged to accept
evidence relating to surrender.
THERON J
40
though the sought person in Garrido was attempting to impugn the good faith of the
requesting State (which is relevant to surrender), the evidence nevertheless also related
to the jurisdictional facts of the section 10 enquiry. The implication is that Garrido is
authority for a right to adduce evidence which relates to both the section 10 enquiry and
surrender. The first judgment endorses the DPP’s narrow interpretation of Garrido.
There are three problems with the DPP’s reading of Garrido. First, the evidence
Garrido attempted to introduce was not related to the jurisdictional facts of the
section 10 enquiry. The evidence was intended to demonstrate the “paucity of credible
evidence”, which the prosecution in the United States had available in order to show
bad faith. The Magistrate was provided with a section 10(2) certificate by the requesting
State. Section 10(2), the constitutionality of which was confirmed in Geuking, obliges
the magistrate to accept the certificate as conclusive proof that the foreign State ha s
sufficient evidence to warrant a prosecution. It follows that the evidence that Garrido
attempted to lead was irrelevant to the M agistrate’s committal decision. It therefore
could only be relevant to the Minister’s surrender decision under section 11.
Secondly, in terms of both Garrido and Geuking, the sought person is entitled to
give and adduce evidence relating to the surrender decision which is not relevant to
either jurisdictional fact in section 10. This much is clear from the Supreme Court of
Appeal’s acceptance that “evidence relating to good faith” was “a matter for the
Minister to consider under section 11(b)(iii) of the Act and not for the magistrate under
section 10(2)”.69 The Court’s finding was unambiguous in this regard and I disagree
with the first judgment’s finding that the Supreme Court of Appeal in Garrido “held
that it was questionable whether the good faith determination was an aspect for the
Minister’s consideration under section 11(b)(iii) of the Extradition Act or the
magistrate’s determination because of its implication on section 10(2)”.70
69 Garrido above n 7 at para 22.
70 First judgment at [54].
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41
The third difficulty I have with the DPP’s narrow interpretation is that Garrido
can also be read as concluding that evidence which is relevant to the Minister’s
surrender decision under section 11 is, by virtue of section 10(4), always relevant to the
section 10 enquiry. The DPP does not dispute the Supreme Court of Appeal’s finding
that the rationale for entitling the sought person to lead evidence regarding surrender is
to assist the Minister via the section 10(4) report prepared by the Magis trate.
In Garrido, the Court clearly had in mind that evidence relating to good faith, which
was relevant to section 11(b)(iii), was nevertheless relevant to the possible report
forwarded to the Minister by the magistrate in terms of section 10(4). Relyi ng on
Geuking, the Court concluded that a person liable to be surrendered should be entitled
to place material before the magistrate in the hope of persuading the magistrate to
include it in a report forwarded to the Minister, which might induce the Minister not to
surrender the sought person on one or other of the grounds set forth in section 11(b).71
But even if Garrido is construed narrowly as applying to a different class of
evidence than the kind of evidence Mr Tucker seeks to lead in this case, one of the
reasons for the Garrido decision is the Supreme Court of Appeal’s unqualified
endorsement of the ratio decidendi in Geuking. Even if only this aspect of Garrido
bound the Magistrate in this case, he was obliged to receive evidence relating to
constitutional and fair trial rights.
Sections 9 and 10 of the Extradition Act
Apart from cohering with Geuking and Garrido, allowing the sought person to
lead evidence relating to surrender accords with the scheme of the Extradition Act and
settled jurisprudence on statutory interpretation.
The starting point is section 9 of the Extradition Act. Section 9(1) requires that
any person detained under a warrant of arrest in terms of the Act be brought before a
magistrate, whereupon the magistrate shall hold an enquiry with a view to the surrender
71 Garrido above n 7 at para 25.
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42
of such a person. This is the first indication that the committal proceedings are a prelude
to a surrender decision and should be conducted with that in mind. It also cuts against
an interpretation of the E xtradition Act that allows the m agistrate to refuse to receive
evidence that will be relevant to the Minister’s surrender d ecision. How can it be that
a magistrate, who is conducting proceedings with a view to the Minister’s surrender
decision, should exclude evidence that is plainly relevant to that decision?
Section 9(2) and 9(3) set out the procedure and form of the enquiry before the
magistrate. Under section 9(2) the enquiry shall proceed in the manner in which a
preparatory examination, i.e. a preparatory examination held in terms of Chapter 20 of
the CPA, is to be held. 72 In this regard, sections 133 and 134 of the CPA provide, in
relevant part:
“An accused may [after the charge has been put to him and he has pleaded thereto] . . .
give evidence or make an unsworn statement in relation to a charge put to him.
An accused may call any competent witness on behalf of the defence.”
The evidence which the accused is entitled to lead is qualified only by the phrase
“in relation to a charge put to him”. In the context of extradition proceedings, the sought
person has the right to lead evidence with respect to the charges put to her by the foreign
State, even if the magistrate is not required to consider and rule on the sought person’s
surrender. This interpretation is supported by the fact that in terms of section 9(3) “any
deposition, statement on oath or affirmation taken . . . may b e received in evidence at
any such enquiry”.
72 Section 9(2) of the Extradition Act provides:
“Subject to the provisions of this Act the magistrate holding the enquiry shall proceed in the
manner in which a preparatory examination is to be held in the case of a person charged with
having committed an offence in the Republic and shall, for the purposes of holding such enquiry,
have the same powers, including the power of committing any person for further examination
and of admitting to bail any person detained, as he has at a preparatory examination so held.”
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43
The first judgment contends that the scope of the evidence adduced at a
committal enquiry is narrowed by section 2 of the Civil Proceedings Evidence Act and
its sister provision in the CPA, which provides that “no evidence as to any fact, matter
or thing which is irrelevant or immaterial and cannot conduce to prove or disprove any
point or fact in issue shall be admissible”. 73 It accepts that even if the extradition
proceedings are sui generis in nature, they ar e nevertheless bound by “the general
evidentiary rule regarding the admissibility of irrelevant evidence”.74 Yet the very fact
that extradition proceedings are sui generis – comprising both a judicial phase, as well
as an executive phase, which takes place outside the context of criminal or civil
proceedings – means that they cannot be shoehorned into the rules of evidence that
apply to ordinary criminal and civil proceedings. And, in any event, if the language of
the Extradition Act, read purposively, cre ates a “bridge” between the judicial and
executive phases that allows the leading of evidence which is not relevant to the
decision taken at the judicial phase, it effectively qualifies or amends the usual rules
regarding the admission of evidence in ordin ary criminal and civil proceedings.
Moreover, the Civil Proceedings Evidence Act and the CPA do not envisage a second
non-judicial decision maker involved in the decision making process, as is the case here.
These pieces of legislation would thus not cater for the admission of evidence that was
not directly relevant to the decision being made by the judicial officer. The standard
they impose for admissibility is therefore not entirely helpful in the context of
extradition proceedings.
The final piece of the puzzle is section 10(4), which states that “the magistrate
issuing the order of committal shall forthwith forward to the Minister a copy of the
record of the proceedings together with such report as he may deem necessary”. This
provision is the clearest “bridge” between section 10 and section 11. In this regard, I
can do no better than the Supreme Court of Appeal’s finding in Garrido:
73 Section 210 of the CPA.
74 First judgment at [55].
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44
“The magistrate’s power to make such report to the Minister as he or she may deem
necessary is clearly designed to enable him or her to give assistance to the Minister in
regard to the matters on which the Minister has to exercise a discretion under
section 11. That being so, it is clearly appropriate that the person whose surrender to
the foreign Sta te making the request is sought should be entitled to place material
before the magistrate holding the inquiry in the hope of persuading the magistrate to
include material in a report to be submitted to the Minister which may induce the
Minister to order that the person concerned not be surrendered on one or other of the
grounds set forth in section 11(b).”75
In short, the procedural regime put in place by sections 9 and 10(4) points toward
a more expansive right to adduce evidence in the context of a section 10 enquiry. This
interpretation, which does not unduly strain the language of the text, should be preferred
over the restrictive interpretation proposed by the DPP. It is trite that courts must read
legislation, where possible, in ways which give effect to the Constitution’s fundamental
values.76 Courts are required to interpret legislation not only so that legislation does not
limit rights, but in a manner that promotes rights. 77 In addition, courts have always
interpreted legislation in favorem libertatis (in favour of freedom or liberty). There is
a presumption that a reasonable interpretation of a statute that is less restrictive on the
liberty of an individual is to be preferred over one that is more restrictive.78
In the context of extradition, this Court has cautioned that “[e]xtraditing a person,
especially a citizen, constitutes an invasion of fundamental human rights”. 79 Allowing
a sought person to lead evidence relating to surrender promotes their right to a
fair hearing. It affords them the liberty to raise pertinent evidence that they feel might
75 Garrido above n 7 at para 25.
76 Chisuse v Director-General, Department of Home Affairs [2020] ZACC 20; 2020 (6) SA 14 (CC); 2020 (10)
BCLR 1173 (CC) at para 49 and Investigating Directorate: Serious Economic Offences v Hyu ndai Motor
Distributors (Pty) Ltd: In Re Hyundai Motor Distributors (Pty) Ltd v Smit N.O . [2000] ZACC 12; 200 1 (1) SA
545 (CC); 2000 (10) BCLR 1079 (CC) at para 22.
77 Section 39(2) of the Constitution. See most recently Chisuse id at paras 46-59.
78 Djama v Government of the Republic of Namibia 1993 (1) SA 387 (NM) at 394H-J; Johnson v Minister of Home
Affairs 1997 (2) SA 432 (C) at 434I-435A; and Dadoo Ltd v Krugersdorp Municipal Council 1920 AD 530 at 552.
79 Geuking above n 4 at para 1.
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45
be relevant to the Minister’s decision from the start of their extradition proceedings and
have that evidence recorded in open court. It does so without prejudicing or
disadvantaging the prosecuting authorities or the requesting State, and ensures that the
sought person’s concerns relating to surrender are recorded in the transcript of
proceedings and the possible report forwarded to the Minister in terms of section 10(4).
It is no response that a sought person is in any event entitled to lead evidence
relating to surrender before the Minister. Whether the Minister is obliged to give the
person concerned a hearing before making a decision to surrender under section 11 has
not been conclusively pronounced on by this Court. In oral argument, counsel for the
DPP admitted that the Extradition Act does not afford sought persons the right to make
representations to the Minister but assured this Court that it was “common practice” to
afford them this righ t. A s this Court noted in Teddy Bear Clinic , a discretion on the
part of an authority is not sufficient to save a provision from unconstitutionality 80 and
the same reasoning applies to the interpretation of legislation in light of section 39(2)
of the Constitution.
Conclusion on the magistrate’s duty to admit evidence relating to the
sought person’s surrender
For the reasons set out above, the interpretation of the Extradition Act advanced
by Mr Tucker would give better effect to his section 34 right to a fair hearing and it
would be less restrictive on the liberty of sought persons in the context of extradition
proceedings.
Geuking and Garrido authoritatively state that m agistrates holding section 10
committal enquiries are under a duty to admit evidence relating to the Minister’s
surrender decision. As demonstrated, Robinson II does not disturb or contradict this
finding. Accordingly, the Magistrate was bound to admit evidence relating to the
80 Teddy Bear Clinic for Abused Children v Minister of Justice and Constitutional Development [2013] ZACC 35;
2014 (2) SA 168 (CC); 2013 (12) BCLR 1429 (CC) (Teddy Bear Clinic).
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46
surrender decision during the section 10 proceedings. In this case, the Magistrate
breached that duty.
Re-opening of proceedings before the Magistrate
The High Court held that the Magistrate’s failure to admit Mr Tucker’s evidence
relating to surrender constituted an irregularity in that it breached his procedural rights
and the audi principle.81 The High Court nevertheless confirmed the committal order
on the basis that the irregularity which occurred was not of “such a nature as to vitiate
the proceedings as a whole, nor such that it can be said that there was a fundamental
failure of justice”.82
In relation to the failure by the Magistrate to allow Mr Tucker to adduce evidence
relating to surrender, the High Court sought to remedy the situation by referring the
matter to the Magistrate and affording Mr Tucker an opportunity to lead the further
evidence. Paragraph 3 of the order of the High Court reads:
“The proceedings of the extradition enquiry which was held before the magistrate of
Cape Town shall be re-opened, in order to allow the appellant an opportunity, if he so
wishes, to put before the magistrate (for his consideration and report to the Minister in
terms of section 10(4) of the Extradition Act, 62 of 1967, if he deems it fit) within 15
81 High Court judgment above n 8 at para 75. The reasoning of the Court is in para 73 where it is stated:
“Given the decision of the Constitutional Court in [Robinson II], the magistrate was correct in
adopting the attitude that it was not within his remit to consider whether or not either the
appellant’s fundamental human rights or his rights to a fair trial before an English court would
be breached, were he to be extradited, and that th is was something which the Minister needed
to determine. But that does not mean that the magistrate could simply refuse to accept any
evidence which the appellant wished to tender, which might have reflected upon these aspects.
In fact, somewhat anomalously, although the magistrate was unable (as a result of the decision
in Robinson), to pronounce on these issues and whether or not any breach of a constitutional,
fair trial, or fundamental human right would possibly take place were the appellant to be
extradited, he was nonetheless obliged in terms of the decision of the Supreme Court of Appeal
in Garrido to receive any evidence which the appellant wished to adduce, pertaining to these
aspects, inasmuch as these could have a bearing on the exercise of the Minister’s discretion as
to whether or not he should order that the appellant be surrendered, and to any report which the
magistrate might deem necessary to submit to the Minister.”
I reiterate that the question whether the Magistrate’s refusal to accept e vidence relating to surrender vitiated the
committal decision is not before this Court.
82 Id at para 80.
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days from date hereof an affidavit by an expert on UK law, in relation to the alleged
discriminatory features thereof pertaining to the sexual offences for which the appellant
is sought for extradition to the UK, and any documentary evidence pertaining to the
alleged unfair media coverage which the appellant has received.”
The magistrate’s refusal to receive evidence relating to the surrender is valid
until set aside.83 Although Mr Tucker initially indicated that he would appeal against
the High Court’s dismissal of his review application, he has not done so.
Both parties agree that paragraph 3 of the High Court’s order should be set aside,
albeit for different reasons. The DPP says the High Court’s order is unsustainable
because the Magistrate’s refusal to hear evidence relating to surrender was not irregular.
Mr Tucker contends that paragraph 3 of the High Court’s order should be set aside
because the Magistrate is not empowered under the Extradition Act to “re -open”
proceedings to hear evidence relating to surrender when a valid committal order exists.
Mr Tucker has consented to the order sought and accepts that if it is granted he will not
be left without recourse. However, notwithstanding the parties’ agreement on this
score, this Court must satisfy itself whether, as a matter of law, paragraph 3 falls to be
set aside. This Court is not bound by the common approach of parties if it is based on
an incorrect perception of the law.84
Mr Tucker’s counsel contended that in light of the valid committal order ,
paragraph 3 of the High Court’s order is not competent because the Magistrate does not
have the power to hear evidence relating to the surrender decision after and in a separate
self-contained hearing once she has made a valid committal order. It was contended
that section 9(1) envisages a single enquiry b efore the magistrate with a view to the
surrender of the sought person and this enquiry, by virtue of section 10(1), is only aimed
at committal. It was further contended that section 10(4) implies that the evidence
relating to the surrender decision must be led within the committal extradition enquiry
83 MEC for Health, Eastern Cape v Kirland Investments (Pty) Ltd t/a Eye and Laser Institute [2014] ZACC 6;
2014 (3) SA 481 (CC); 2014 (5) BCLR 547 (CC) at para 103.
84 CUSA v Tao Ying Metal Industries [2008] ZACC 15; 2009 (2) SA 204 (CC); 2009 (1) BCLR 1 (CC) at para 67.
THERON J
48
and not separately. According to this argument, the “record of proceedings” that the
magistrate is obliged to forward to the Minister in terms of section 10(4) refer s to the
committal proceedings under secti on 10 and the report which the magistrate may
forward to the Minister pertains only to what occurred in the committal proceedings.
The reference to “proceedings” is thus a reference to the committal proceedings which
culminate in the magistrate’s committal decision and until such decision is set aside, it
stands in the way of a re-opening of the proceedings.
In my view, these submissions are based on an unduly narrow view of extradition
proceedings conducted in terms of sections 9 and 10 of the Act. Acco rding to
section 9(1), an enquiry is held by the magistrate with a view to the surrender of the
sought person . In terms of section 10, the magistrate shall make a committal order
provided the jurisdictional requirements for committal are met. To that extent, the
extradition enquiry is concerned primarily with committal. That said, I have taken great
pains to emphasise that the enquiry is conducted “with a view to surrender” and I have
concluded that the sought person has a right to lead evidence relevant to the Minister’s
surrender decision under section 11. The correlative of the sought person’s right to
adduce this evidence, is the magistrate’s obligation to receive it. The magistrate fulfils
this obligation while, in a simultaneous but parallel process, discharging her obligation
to make a decision on committal. It is the magistrate’s failure to comply wit h th e
obligation to receive evidence relating to surrender that paragraph 3 of the High Court’s
order seeks to correct, while keeping the committal leg of the inquiry intact.
Is there anything in the Extradition Act which stands in the way of re -opening
the proceedings for the limited purposes of correcting the magistrate’s failure to receive
Mr Tucker’s evidence relating to his surrender? Counsel for Mr Tucker submitted that
the effect of section 10(1) of the Act is that the proceedings are only aimed at committal
and that section 10(4) makes it clear that the Magistrate is only empowered to hold an
enquiry with respect to the committal of the sought person. I disagree. Sect ion 10(1)
does say that a committal order is based on “evidence adduced at the enquiry” but I do
not read this as meaning that the enquiry is about committal alone. Section 10(4)
THERON J
49
imposes certain reporting duties on the magistrate wh o issues a committal or der to
forward to the Minister a record of the extradition proceedings . If those proceedings
are re-opened in order to correct an irregularity, the magistrate would have an obligation
to forward a record of that portion of the proceedings to the Minister.
The finding that extradition proceedings can be re -opened to correct a failure to
receive evidence relating to surrender flows from a proper interpretation of sections 9
and 10, which envisages a sui generis enquiry that may serve a dual purpose , namely,
the committal decision and the receiving of evidence that will inform the Minister’s
surrender decision under section 11. Thus, the raison d’etre (purpose) of the extradition
enquiry is not the magistrate’s committal deci sion alone. It follows that it was
competent for the High Court to direct that the Magistrate receive evidence relating to
surrender even though the committal aspect of the enquiry has been finalised.
Conclusion
A magistrate is obliged to admit evidence that is relevant to the Minister’s
surrender during committal proceedings, notwithstanding the fact that the enquiry is
solely concerned with the committal of the sought person. In this matter, having
concluded that the Magistrate did not fulfil this obli gation, it was competent for the
High Court to order that the extradition enquiry in terms of sections 9 and 10 of the Act
be re-opened and direct that the Magistrate receive Mr Tucker’s evidence relating to
surrender. For these reasons, I would dismiss t he appeal and preserve paragraph 3 of
the High Court’s order.
Order
In the result, the following order is made:
1. The application for condonation is granted.
2. The application for leave to appeal is dismissed.
3. There is no order as to costs.
JAFTA J
50
JAFTA J:
I have had the pleasure of reading the judgments of my colleagues Mathopo AJ
(first judgment) and Theron J (second judgment). I agree with the second judgment that
a magistrate who conducts an enquiry in terms of section 10 of the Extradition Act is
obliged to receive evidence relevant, not only to the issues to be determined by the
magistrate, but also to the issues to be decided later by the Minister.
This interpretation of se ction 10 of the Extradition Act was affirmed first in
Geuking by this Court, where it was held that the person against whom an enquiry under
the section is conducted “is entitled to give and adduce evidence at the enquiry which
would have a bearing not only on the magistrate’s decision under section 10, but could
have a bearing on the exercise by the Minister of the discretion under section 11”. 85
Later the Supreme Court of Appeal followed that interpretation in Garrido and held that
evidence relevant to is sues to be determined by the Minister must be received by the
magistrate during the section 10 enquiry and that such evidence must form part of the
report submitted to the Minister by the magistrate.86
However, it appears that in Garrido the Supreme Court of Appeal went further
to hold that the magistrate’s decision to commit a person to prison pending the
Minister’s decision to have him extradited, is vitiated by the magistrate’s failure to
receive evidence relevant to matters to be decided by the Ministe r. For a number of
reasons this is not correct. This failure has no bearing on the issues to be determined
by the magistrate. It will be remembered that under section 10 there are only two issues
on which the magistrate must be satisfied before ordering committal pending
extradition. The first is that the person concerned is liable to be surrendered to a foreign
state. The second is that there is sufficient evidence to warrant prosecution of the
offence he or she is accused of.
85 Geuking above n 4 at para 42.
86 Garrido above n 7 at paras 22-5.
JAFTA J
51
Once these two conditio ns are met, the magistrate is obliged to commit the
person concerned to prison pending his or her surrender by the Minister. This decision
is taken regardless of whether the Minister would surrender the person or not. This
illustrates that the magistrate and the Minister take separate decisions and one of them
has no power to take a decision vested in the other.
Consequently, an irregularity committed by one of them in relation to process
concerning a decision by the other cannot vitiate a properly taken decision by the erring
functionary. For example, the magistrate’s failure to receive evidence relevant only to
issues to be decided by the Minister cannot invalidate the magistrate’s decision to
commit the person to prison. To vitiate the magistrate’s d ecision, the error must have
a bearing on the making of that decision. For an irregularity to be a basis for setting a
decision aside, it must affect or be involved in the making of the impugned decision.
The failure to receive evidence relevant to the making of a decision by the Minister has
no bearing on the magistrate’s decision and as a result cannot justify rescission of the
latter decision.
In this matter, it cannot be gainsaid that the Magistrate rightly took the decision
to commit Mr Tucker to pr ison pending his surrender by the Minister. N or can it be
disputed that the M agistrate refused to receive evidence relevant to issues to be
determined by the Minister. Unhappy with this decision, Mr Tucker appealed to the
High Court. The High Court dismissed the appeal against the committal order that was
issued by the Magistrate but overturned the refusal to receive evidence relevant to the
issue to be decided by the Minister. The High Court issued the following order:
“[T]he proceedings of the extradition enquiry which was held before the magistrate of
Cape Town shall be re-opened, in order to allow the appellant an opportunity, if he so
wishes, to put before the magistrate (for his consideration and report to the Minister in
terms of section 10(4) of the Extradition Act 62 of 1967, if he deems it fit) within 15
days from date hereof an affidavit by an expert on UK law, in relation to the alleged
discriminatory features thereof pertaining to the sexual offences for which the appellant
JAFTA J
52
is sought for ext radition to the UK, and any documentary evidence pertaining to the
alleged unfair media coverage which the appellant has received.”
It was this part of the order the D PP sought leave to appeal against. He argued
that the High Court had no authority to reopen the enquiry and direct the Magistrate to
receive evidence relevant to issues to be decided by the Minister. Once those
proceedings were closed, it was submitted, they could not be reopened because sections
9 and 10 contemplate a single enquiry. For a number of reasons, this argument is
untenable.
First, the argument overlooks the appeal procedure created by the
Extradition Act itself. Section 10(1) explicitly obli ges a magistrate who orders
committal of a person to prison to inform that person of his or her statutory right to
appeal the magistrate’s decision to the High Court.87 Section 13 provides that a person
against whom a committal order is made may appeal such order to the High Court. 88
Here Mr Tucker, against whom the order was made, appealed to the High Court.
Section 13(2) mandates the High Court to make any order it d eems fit following a
consideration of the appeal.89
In adjudicating the appeal, the High Court realised that with regard to the
decision to commit Mr Tucker to prison, no irregularity was committed by the
87 Section 10(1) provides:
“If upon consideration of the evidence adduced at the enquiry referred to in section 9(4)(a) and (b)(i) the
magistrate finds that the person brought before him or her is liable to be surrendered to the foreign State
concerned and, in the case where such person is accused of an offence, that the re is sufficient evidence
to warrant a prosecution for the offence in the foreign State concerned, the magistrate shall issue an order
committing such person to prison to await the Minister's decision with regard to his or her surrender, at
the same time informing such person that he or she may within 15 days appeal against such order to the
Supreme Court.”
88 Section 13(1) provides:
“Any person against whom an order has been issued under section 10 or 12 may within fifteen days after
the issue thereof, appe al against such order to the provincial or local division of the Supreme Court
having jurisdiction.”
89 Section 13(2) provides:
“On appeal such division may make such order in the matter as it may deem fit. ”
JAFTA J
53
Magistrate. This meant that this decision was to be left intact. But the refusal to receive
evidence on the fairness of the trial in the United Kingdom was found to have been in
breach of section 10 of the Extradition Act, as interpreted in Geuking and Garrido.
Having reached this conclusion, the High C ourt deemed it necessary to direct that the
Magistrate reopen the enquiry for the limited purposes of taking evidence relevant to
the issues to be decided by the Minister. There can be no doubt that this order falls
within the ambit of the wide remedial p ower conferred on the High Court by
section 13(2) of the Extradition Act. This provision grants the High Court an
unqualified remedial power. That Court may make any order it considers necessary or
fit in the particular appeal.
Properly construed, the reach of section 13(2) is not limited by sections 9 and 10
of the Extradition Act. It is wrong to apply section 13(2) as if its operation is dependent
on sections 9 and 10. There is simply nothing in those provisions which suggest that
they have a bearing on the scope of section 13(2). To read section 13(2) as being subject
to sections 9 and 10 does not only lack textual foundation but also leads to an absurdity.
On that approach, errors committed by a magistrate during a section 10 enquiry can
never be corrected on appeal because that enquiry cannot be reopened. This would
render the entire appeal nugatory. If a statute, like the Extradition Act, affords an appeal
against decisions taken under it, there can be no denying that the statute anticipates
errors to be made and if such errors occur, that they should be corrected on appeal.
The proposition that section 10 read with section 9 of the Extradition Act permits
only a single enquiry, misses the point. Properly construed, these provisions oblige the
magistrate to take disparate steps towards distinct objectives. That is, the enquiry entails
two separate processes. One process leads to taking the decision to commit a person to
prison and the other relates to collecting evidence relevant to the decis ion to surrender
that person, which is taken by the Minister. An irregularity in respect of one process
cannot vitiate the other process. To do otherwise would be tantamount to using a
sledgehammer to kill an ant. The sledgehammer approach is not warran ted by the
language of those provisions. Nor is it supported by principle or logic.
JAFTA J
54
Over and above the authority in section 13, the source of the High Court’s
remedial powers in constitutional matters like the present is section 172(1) of the
Constitution.90 This provision provides wide remedial powers to courts adjudicating
constitutional matters. Considerations of justice and equity determine the nature and
scope of the order to be issued.91 Here, those considerations are that the committal order
was properly made. The error was limited to the refusal to take evidence relevant to the
decision that was to be made by the Minister. In these circumstances, a just and
equitable order is an order that is directed at correcting the defect in the section 10
proceedings. The order granted by the High Court here meets the requirements of
justice and equity.
The correct approach to applying constitutional remedial powers was outlined
by this Court in Höerskool Ermelo:
“It is clear that s 172(1) (b) confers wide remedial powers on a competent court
adjudicating a constitutional matter. The remedial power envisaged in s 172(1) (b) is
not only available when a court makes an order of constitutional invalidity of a law or
conduct under s 172(1)(a). A just and equitable order may be made even in instances
where the outcome of a constitutional dispute does not hinge on constitutional
invalidity of legislation or conduct. This ample and flexible remedial jurisdiction in
constitutional disputes permits a court to forge an order that would place substance
above mere form by identifying the actual underlying dispute between the parties and
by requiring the parties to take steps directed at resolving the dispute in a manner
consistent with constitutional requirements. In several cases this court has found it fair
90 Section 172(1) of the Constitution provides:
“When deciding a constitutional matter within its power, a court—
(a) must declare that any law or conduct that is inconsistent with the Constitution is invalid to the
extent of its inconsistency; and
(b) may make any order that is just and equitable, including—
(i) an order limiting the retrospective effect of the declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on any conditions,
to allow the competent authority to correct the defect.”
91 Head of Department, Mpumalanga Department of Education v Hoërskool Ermelo [2009] ZACC 32; 2010 (2)
SA 415 (CC); 2010 (3) BCLR 177 (CC) (Hoërskool Ermelo) at para 96.
JAFTA J
55
to fashion orders to facilitate a substantive resolution of the underlying dispute between
the parties. Sometimes orders of this class have taken the form of structural interdicts
or supervisory orders. This app roach is valuable and advances constitutional justice,
particularly by ensuring that the parties themselves become part of the solution.”92
Therefore, even if section 13(2) did not exist, the order granted by the High Court
would still be competent under the Constitution, our supreme law.
The other contention advanced against the High Court’s order quoted above was
that since that Court had dismissed the appeal and review, it was not competent for it to
make that order. There is no merit in this argument. It is common for appeal courts to
dismiss an appeal whilst upholding it in part. A reading of the High Court’s judgment
makes it clear that the appeal was partly successful. That court said:
“Insofar as costs are concerned, both parties may claim a measure of success. Although
the state was successful in warding off an order in the review application that the
proceedings be set aside, the appellant equally was successful in obtaining an order
allowing him to put forward certain evidence which the magistrate was not prepared to
receive, for his consideration and submission to the Minister.”93
Therefore, there was partial success for each party. The state succeeded in the
review and Mr Tucker in the appeal. However, the order that was granted failed to
accurately reflect that the appeal was dismissed save to the extent of paragraph 3 of that
order. For a proper understanding of the order, it must be read with the preceding
reasons in the judgment.
It is for all these reasons that I disagree with the first judgment on remedy.
Instead, I support the order proposed in the second judgment which effectively
preserves the order issued by the High Court.
92 Id at para 97.
93 High Court judgment above n 8 at para 81.
For the Applicant:
For the Respondent:
D Damerell and C Burke instructed by
the Director of Public Prosecutions
A Katz SC, K Perumalsamy and
E Cohen on a pro bono basis