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[2014] ZAWCHC 115
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Benjamin v Additional Magistrate Cape Town and Others (14216/2013) [2014] ZAWCHC 115 (1 August 2014)
Republic
of South Africa
In
the High Court of South Africa
Western
Cape Division, Cape Town
CASE
NO: 14216/2013
DATE:
01 AUGUST 2014
BRIAN
BENJAMIN
..........................................................................................................
Applicant
And
THE
ADDITIONAL MAGISTRATE, CAPE
TOWN
............................................
First
Respondent
THE
DIRECTOR OF PUBLIC PROSECUTIONS
WESTERN
CAPE
.........................................................................................
Second
Respondent
THE
MINISTER OF INTERNATIONAL RELATIONS
AND
COOPERATION
.....................................................................................
Third
Respondent
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
Fourth
Respondent
JUDGMENT: 1
AUGUST 2014
LL
BURGER, AJ
1
The Government of the United States of
America (the “USA”) seeks the extradition of the
Applicant to stand trial on
various criminal charges. The
charges relate to the illegal importation and marketing of various
drugs, including anabolic
steroids, in the United States. The USA
sent a request to the Government of the Republic of South Africa (the
“RSA”)
to extradite the Applicant.
2
The Applicant
was born Brian Wainstein and changed his name in 2011.The extradition
documents also allege that he uses other names.
He was arrested
and brought before the first respondent, the Additional Magistrate
for Cape Town (the “Magistrate”),
to determine whether he
should be extradited.
3
Mr. Anton Katz SC and Mr. David Simonz
appear for the Applicant, Mr. Andrew Breitenbach SC and Ms. Ncumisa
Mayosi appear for the
Second Respondent.The First Respondent abides
the decision of this court.
4
The extradition
process is governed by the Extradition Act 67 of 1962 (as amended)
(the “Act”) and the Extradition Treaty
between RSA and
USA which came into effect on 25 June 2001 (the “Treaty”).
5
This application
for review relates to the second stage (the judicial phase) of the
process, an enquiry before the Magistrate in
terms of section 9(1) of
the Act.
6
The relevant
provisions of the Act are the following:
Section 9 Persons
detained under warrant to be brought before magistrate for holding of
an enquiry
(1)
Any person detained under a warrant of arrest or a warrant for his
further detention, shall, as soon as possible be brought
before a
magistrate in whose area of jurisdiction he has been arrested,
whereupon such magistrate shall hold an enquiry with a
view to the
surrender of such person to the foreign State concerned.
(2)
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.
(3)
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 example 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 by a certificate of any person referred to in
item (aa) or
(bb) or of any diplomatic or consular officer of such foreign State
in the Republic to be duly authorized to authenticate
such document
in terms of the law of that foreign State; or
…
(4)
At any enquiry relating to a person alleged to have committed an
offence-
(a)
in a foreign State other than an associated State, the provisions of
section 10 shall apply;
...
10
Enquiry where offence committed in foreign State
(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 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.
(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.
7
The Applicant
seeks the following relief in these proceedings:
"1.1
Reviewing and setting aside the decision of the First Respondent
(“the impugned decision”), made on 1 August
2013, to
admit into evidence, in terms of section 9(3)(a) read with section 10
of the Extradition Act 67 of 1962 (“the Act”),
the
following documents:
1.1.1
A certification issued for the purposes of section 10(2) of the Act,
signed by Mr Brent A. Hannafan, Assistant United States
Attorney, and
dated 31 January 2013 (“the section 10(2) certificate”);
1.1.2
A document purporting to be an affidavit in support on the
extradition request signed by Mr Brent A.Hannafan, dated 29 January
2013 (“the Hannafan document”);
1.1.2.1
Exhibit A to the Hannafan document, being a superseding indictment
from the United States District Court for the Middle
District of
Tennessee (“the Tennessee court”), dated 7 June 2012
(“the indictment”);
1.1.2.2
Exhibit B to the Hannafan document, being an arrest warrant from the
Tennessee court, dated 7 June 2012 (“the warrant”);
1.1.2.3
Exhibit C to the Hannafan document, being copies of relevant statutes
(“the statutes”); and
1.1.2.4
Exhibit D to the Hannafan document, being an affidavit deposed to by
Mr Alex Davis, dated 28 January 2023 (“the Davis
affidavit”).
In
the alternative to prayer 1.1:
1.2.1
Reviewing and setting aside the decision of the First Respondent,
made on 1 August 2013, to admit into evidence, in terms
of section
9(3)(a) read with section 10 of Act, the section 10(2) certificate;
and/or
1.2.2
Reviewing and setting aside the decision of the First Respondent,
made on 1 August 2013, to admit into evidence, in terms
of section
9(3)(a) read with section 10 of Act, the Hannafan document together
with the indictment, the warrant, the statutes and
the Davis
affidavit;
2.1
Declaring as inconsistent with the Constitution of the Republic of
South Africa, 1996 (“the Constitution”) the conduct
of
the First Respondent, on 1 August 2013, in admitting into evidence in
terms of sections 9(3)(a) read with section 10 of the
Act the
following document:
2.1.1.
The section 10(2) certificate;
2.1.2.
The Hannafan document;
2.1.3.
The indictment;
2.1.4.
The warrant;
2.1.5.
The statutes; and
2.16.
The Davis affidavit;
In
the alternative to prayer 2.1:
2.2.1
Declaring as inconsistent with the Constitution and invalid the
decision of the First Respondent, made on 1 August 2013, to
admit
into evidence, in terms of section 10(2) certificate; and
2.2.2
Declaring as inconsistent with the Constitution and invalid the
decision of the first Respondent, made on 1 August 2013, to
admit
into evidence, in terms of section 9(3)(a) read with section 10 of
Act, the Hannafan document together with the indictment,
the warrant,
the statutes and the Davis affidavit;
3.
Declaring that the document numbered 13016664-2, dated 4 February
2013, signed by Mr John F, Kerry is invalid."
8
In
short, the Applicant seeks to review the decision of the Magistrate
to admit documents into evidence at the enquiry.
9
The Applicant relies on
section 22(1)
of
the
Superior Courts Act 10 of 2013
to review the decision of the
Magistrate, which reads as follows in its relevant parts:
"The
grounds upon which the proceedings of any Magistrates' Court may be
brought under review before a court of a Division
are -
...
(c)
gross irregularity in the proceedings; and
(d)
the admission of inadmissible or incompetent evidence or the
rejection of admissible or competent evidence."
10
I leave aside the question whether an
enquiry in terms of
section 9(1)
constitutes “proceedings of
any Magistrates' Court”. Even if it was not, the decision of
such a tribunal would be reviewable
in any event. I will assume that
the decision could be reviewed on the grounds as set out in
section
22(1).
11
It follows that
the question before us is whether there has been a gross irregularity
of the proceedings, or whether inadmissible
evidence was admitted.
Gross irregularities are only alleged to have been committed in
relation to the admission of the evidence.
It is therefore convenient
to consider the admissibility of the evidence first before
considering whether a gross irregularity
occurred.
Documents sought
to be admitted
12
At issue is the
admissibility of a bundle of original bound documents (the “original
bundle”) submitted by the USA to
the RSA through the respective
departments of foreign affairs. For the sake of convenience the
Magistrate and the parties worked
from a paginated photocopy thereof
on size A4 paper. This was the only practical course of action. The
Applicant's attorney was
present when the original was copied and did
not object to photocopies thereof being used at the enquiry. Any such
objection would
in any event have been spurious if the original was
available.
13
We called for,
and received, the original bundle. It consists of a bound bundle of
documents on paper size 8½” x 11”
(the paper size
used almost invariably in the USA) which comprise (in chronological
order as bound and sealed by various persons):
13.1
The bundle from
the United States Department of Justice bound with a red ribbon and a
red seal sticker which has been embossed,
and signed by Mr Randy
Toledo on behalf of the Attorney General of the USA, on the first
page thereof (the “red ribbon bundle”
or the “Justice
bundle”, according to the context).
13.2
The
bundle from the Department of State
[1]
of the USA bound with a gold ribbon and a gold seal sticker which has
been embossed, and signed by Ms. Sonya Johnson, Assistant
Authentication Officer, on behalf of the Secretary of State of the
USA on the first page thereof, bound together with the red ribbon
bundle (the “gold ribbon bundle” or the “Department
of State bundle”, according to the context.)
13.3
The total
original bundle consisting of the first page titled “Certificate
of Authentication” binding together the gold
ribbon bundle and
red ribbon bundle with a green ribbon and red sticker seal which has
been embossed and signed by Mr. Moroeng
of the South African Embssy
in the USA (the “green ribbon bundle” or the “original
bundle”).
14
The green ribbon
bundle and the gold ribbon bundle each added one page to the previous
red ribbon bundle.
15
The Justice
Department bundle consists of the following documents:
15.1
A certification
by Mr. Jeffrey W. Cole referring to the following documents enclosed
therewith;
15.2
A certification
by Mr.. Brent A. Hannafan referring to the following documents
enclosed therewith;
15.3
An affidavit by
Mr. Hannafan sworn before US District Judge Todd J. Campbell
referring to the following documents, being exhibits
A, B, C and D to
his affidavit;
15.3.1
Exhibit A, being
the so-called Superseding Indictment;
15.3.2
Exhibit B, being
the Arrest Warrant;
15.3.3
Exhibit C, being
copies of the relevant US Statutes;
15.3.4
Exhibit D, being
the affidavit of Special Agent Alex Davis with Annexures thereto.
16
An “X”
appears on the top right corner of the first page of the gold ribbon
bundle. The numbering of the pages referred
to in the founding
affidavit does not appear on the original bundle.
17
The Applicant
raises the following contentions regarding the admissibility of the
original bundle before the the Magistrate in its
founding papers:
17.1
The documents
were not properly authenticated.
17.2
The Hannafan
Certificate put before the Magistrate in terms of
Section 10(2)
has
not been proven by evidence (the so-called “Affidavit
Issue”).
17.3
The involvement
of US District Judge Todd J Campbell in commissioning an affidavit
(the so-called “Campbell Issue”).
17.4
There were
multiple versions of the gold ribbon bundle (the so-called the “X”
issue).
Should the
decision be reviewed at this stage?
18
We
raised with counsel whether the Magistrate's decision should be
reviewed at this stage, or whether the Applicant should wait
until
the Magistrate makes a final decision and then review the matter, if
the final decision is adverse to him. We referred counsel
in this
regard to the dictum in
Wahlhaus
v Additional Magistrate, Johannesburg
,
[2]
that the court should only
in special circumstances interfere by way of review before the
conclusion of the proceedings. I also
note that the court in
Wahlhaus
also stated that the consent of the Attorney-General (now the
Director of Public Prosecutions) is a material element, but does
not
relieve the court of deciding whether it should intervene before the
conclusion of proceedings. Counsel for the both parties
informed us
that they have were of the view that the decision should be reviewed
at this stage.
19
The Applicant
was arrested on 19 January 2013. This matter is nowhere close to a
conclusion.If we decide that the matter should
not be reviewed at
this stage the matter will be further delayed. This will not be in
the interests of justice.
20
We will
therefore consider the merits of the application.
Authentication
21
Applicant
contends that authentication as contemplated in section 9(3) of the
Act is the verification of a signature on the document.
He
further contends that because no-one refers in any of the documents
to the signatures of Mr. Hannafan and Mr. Davis they have
not been
authenticated and are therefore not admissible in evidence. He
further submits that the seal of office required
by section
9(3)(a)(iii) of the Act does not appear anywhere in the request.
22
The issue before
us is the interpretation of the word "authenticated" in
section 9(3).
23
The Supreme
Court of Appeal recently restated the law regarding the
interpretation of documents, including statutes, as follows:
"[18]
... Interpretation is the process of attributing meaning to the words
used in a document, be it legislation, some other
statutory
instrument, or contract, having regard to the context provided by
reading the particular provision or provisions in the
light of the
document as a whole and the circumstances attendant upon its coming
into existence. Whatever the nature of the document,
consideration
must be given to the language used in the light of the ordinary rules
of grammar and syntax; the context in which
the provision appears;
the apparent purpose to which it is directed and the material known
to those responsible for its production.
Where more than one meaning
is possible each possibility must be weighed in the light of all
these factors. The process is objective,
not subjective. A sensible
meaning is to be preferred to one that leads to insensible or
unbusinesslike results or undermines the
apparent purpose of the
document. Judges must be alert to, and guard against, the temptation
to substitute what they regard as
reasonable, sensible or
businesslike for the words actually used. To do so in regard to a
statute or statutory instrument is to
cross the divide between
interpretation and legislation; in a contractual context it is to
make a contract for the parties other
than the one they in fact made.
The 'inevitable point of departure is the language of the provision
itself', read in context and
having regard to the purpose of the
provision and the background to the preparation and production of the
document.
[19]
All this is consistent with the 'emerging trend in statutory
construction'. .... "
[3]
24
This
is the approach that I will adopt in the interpretation of the word
"authenticate". I consider the purpose of section
9(3) is
to ensure the authenticity of the documents introduced into evidence
to establish the facts to be proven: the identity
of the person, that
the person is liable to be extradited and whether there is sufficient
evidence to warrant a prosecution.
[4]
I also note that the provisions of section 9(3) should be given a
sensible interpretation which gives effect to the underlying
purpose
of the legislation.
25
To
understand the meaning of the word “authenticated” in
section 9(3)(a) one must start with a reading of the Act. The
term is
not defined in the Act. Generally it means to verify as
genuine. The Magistrate stated (quoting from various sources):
[5]
Authentication has
been defined as follows:
"to
establish as genuine or valid or to give authority or legal
validity";
[6]
"to
prove to be genuine or as represented";
[7]
"to prove or
serve to prove that (something) is genuine especially to prove that
(an item of evidence) is genuine for the purpose
of establishing
admissibility; to make (a writen instrument) valid and effective by
marking esp. with one's signature";
It
is clear from these definitions that the authentication instrument
signifies that the document is what it purports to be."
[8]
To
this I add the following definition of "authenticate" from
Webster's New World Law Dictionary:
"1.
To prove that something, such as a document, is what it purports to
be, especially so that the item can be admitted into
evidence at a
trial or hearing. For example, a party wishing to admit a letter into
evidence may ask the witness whether it is,
indeed, the letter he
received, does he recognize the handwriting, and similar questions.
2.
To place a mark, such as a signature or a stamp, on a document to
signify that it is authentic, effective, or valid.
3.
To approve or adopt a writing as one’s own."
In
the legal context it normally means to verify a document to be
genuine, which is often done by verifying or “authenticating”
the signature on a document. Section 9(3) specifically refers to the
document itself (“such document”) being authenticated,
rather than the signature on the document being authenticated.
26
While the
definition of “authentication” in Rule 63(1) of the
Uniform Rules of Court is consistent with the Applicant's
argument
that authenticate means the verification of signature, in terms of
the provisions of Rule 63(1) this definition only applies
to the use
of the word in that rule.
Authentication
under the common law
27
It is useful to
first discuss authentication under the common law as it would provide
for a better understanding of discussion of
the statutory law that
follows below.
28
The meaning of
the word "authenticate" means a process by which a document
is considered to be genuine or what it purports
to be, as will be
discussed in more detail below. In practice this is usually done by a
statement (authenticating document) by
a person other than the author
of the authenticated document that a signature on the authenticated
document is a genuine signature.
There are various ways of
authenticating a document: For example, oral evidence might be lead
that a document is a valid document.
Another example where
authentication is not done with reference to the signature is in the
case of a document such as an email,
which does not have a
signature. Someone testifying that he or she sent an email is
in effect saying that the email is genuine
or authentic. Furthermore,
not every document with a correct signature is, however, a genuine
document: a valid signature might
be obtained by fraud, or a
signature stamp might be used by someone for fraudulent purposes.
29
I agree with the
following statement made in relation to Uniform Rule 63, which is
also applicable to authentication generally:
The
conclusion is inescapable that the exiting Rules relating to the
authentication of documents, including the discretion conferred
upon
the Court, are designed to ensure that documents executed in foreign
countries are genuine before they can be used in the
Republic.
The provisions laying down formalities are not mandatory in the sense
that only strict and exact compliance will
suffice.
[9]
30
From
this
dictum
it is clear that it is the genuineness of the document that is at
stake and not just the signature on the document. The court
in
Chopra
also stated, referring to
McLeod
v Gesade Holdings (Pty) Ltd
[10]
:
"…
Ramsbottom J. …. observed that the Rules then in force
relating to the authentication of documents were not
exhaustive, that
what the Court had to be satisfied of was that the document before it
was a genuine one, and that the signature
of the person who was said
to be the signatory thereof was indeed the signature. "
[11]
I
agree with the statement that it is the document that is important
and which must be genuine. The reference to a signature
does
not mean that the signature also has to be verified in some way in
every case.
31
Although in the
majority of cases authentication is done by way of verifying a
signature, the real issue is whether the document
as a whole is
authentic, not only whether the signature is authentic. This
authentication can be done either by saying “the
signature is
the signature of X” or “this is an authentic document”
or other words to that effect.
32
An
example of a case where the authentication was not done by way of
verifying the signature is
Mountain
View Hotel (Pty) Ltd v Rossouw
.
[12]
In that matter the
statement made was that “the person swearing to the affidavit
is personally known to him as ...”,
not that he verified the
signature. The court accepted the affidavit as being
sufficiently authenticated under Uniform Rule
63(4) read with Uniform
Rule 27(3).
33
What is
important is that the document is genuine, not whether the signature
is genuine. It is theoretically possible that
a genuine
signature might be obtained by fraudulent means, which would not make
the document valid, even though the signature might
be valid.
34
The Applicant's
counsel referred the Court to a large number of cases where reference
is made to a signature being verified as the
act of authentication.
However, none of these cases discusses the issue of whether
authentication under the Act (and not involving
Uniform Rule 63)
requires verification of the document or just the signature on the
document. It merely mentions the verification
of the signature,
as this is normally the way in which documents are verified.
35
I am therefore
not persuaded by the argument that authentication must be restricted
to a signature and cannot extend to the entire
document.
Authentication refers to authentication of documents, which might be
by verification of a signature, but not necessarily
so.
36
All the recent
cases relating to authentication that I have been able find deal with
the question under Uniform Rule 63(4).
It does appear to me,
however, that Uniform Rule 63(4) reflects the common law (except in
its use of the definition of "authenticate"),
which allows
the court a discretion to admit documents executed outside South
Africa if the court is satisfied that the document
is genuine.
I do not find, however, that the definition of "authentication"
in Uniform Rule 63(1) reflects the
common law.
What is meant by
authentication under the Act?
37
Section
9(3) deals with the admissibility of documents. Documents can
be either "authenticated" or "certified"
(in the
case of an associated State)
[13]
to be admissible. In the context the Legislature appeared to
use "certified" (in the case of an associated
State)
as being similar to "authentication" (in the case of other
States). "Certified" means to
certify a document as
an original document or true copy by a magistrate or judge, i.e. that
they are genuine documents. The
certificate does not say say
anything about the signature on them. This supports the
conclusion that "authenticate"
in section 9(3) means and
act to verify the genuineness of the document, as opposed to
verifying the signature.
38
In light of the
view I have taken of the common law and a reading of the Act I
therefore conclude that "authentication"
means verifying a
document to be genuine, or what it purports to be, whether it be by
verifying a signature on a document or by
other means.
39
This
interpretation of the word "authenticate" is consistent
with the purpose of section 9(3) as set out above, and is
also the
sensible approach which will give effect to the primary purpose of
the proceedings before the Magistrate. The approach
of the Applicant
to contend that authentication can only mean the verification of a
signature ignores, firstly, the plain words
of the statute, which
refers to documents being authenticated, and secondly, the purpose of
section 9(3) and thirdly that such
an interpretation is not sensible.
Were the
documents property authenticated?
40
The question
before us is whether the documents in the Justice bundle have been
authenticated. These documents purport to prove
the requirements that
the magistrate must find, i.e. whether the Applicant is liable to be
surrendered and whether there is sufficient
evidence to warrant a
prosecution.
41
The face page of
the gold ribbon bundle states:
“
I
[c]ertify [t]hat the document hereunto annexed is under the Seal of
the Department of Justice of the United States of America,
and that
such Seal is entitled to full faith and credit.”
42
The statement is
made by Sonya Johnson on behalf of the Secretary of State, in her
capacity as "Assistant Authentication Officer"
and bears
her signature and the Seal of Office of the Department of State.
43
The effect of
this rather formal language is, although it does not expressly say
so, that the document under seal is genuine: The
statement is that
the seal is entitled to "full faith and credit", the clear
import being that the document is genuine.
This is would be
tantamount to confirming the genuineness of the signature thereby
implying that the document is genuine, and can
be be relied upon.
44
The Johnston
certificate refers to the “document hereunto annexed”
under seal, which must mean all the documents bound
together by the
red ribbon under the seal of the Department of Justice, and annexed
to the Johnson certificate, not just the face
page of the annexed
documents. This would include the red ribbon bundle as well.
45
Ms. Johnson does
not state on what evidentiary basis she makes the certification but
it is not necessary to state so. The
fact is that she, as an
Assistant Authentication Officer, authenticates all the documents in
the red ribbon bundle. She might
do so because she relies on
the seal and signature on the red ribbon bundle, but that does not
matter since here is nothing in
the Extradition Act that requires an
authentication to be based on any particular information.
46
Ms. Johnson
signed the authenticating certification quoted above and affixed the
seal of office of the Department of State thereon.
It follows
that the documents annexed thereto, being the red ribbon bundle, have
been authenticated by a "government authority
... charged with
the authentication of documents in terms of the law of" the
United States of America. In my view this complies
with the
requirements of section 9(3)(a)(bb) of the Extradition Act.
47
As such the
documents were duly authenticated and therefore properly admitted.
This finding only applies to a document that is a
"deposition,
statement on oath or affirmation" as referred to section 9(3).
It would not apply to the certificate in
terms of section 10(2), nor
to the copies of the relevant statutes. Because of the provisions of
Article 10.1(b)(ii) of the Treaty
the same reasoning would apply to
these additional documents, as the whole of the request is a document
"referred to in Article
9" of the Treaty.
48
The Magistrate
was therefore correct when she stated that the verifications complied
with the requirements of section 9(3)(a)(iii)(bb).
49
It
is therefore not necessary to go into an analysis of the further
authenticating acts, being the authentication by Mr. Moroeng
and by
Mr. Toledo.
[14]
I add,
though, that the certificate of the Department of Justice (the face
page of the red ribbon bundle) constitutes a verification
of the
signature of Mr. Jeffrey W. Cole, in saying that his "name is
signed". Mr. Cole himself on behalf of the
Department of
Justice certifies that all the documents attached to his
"Certification" constitute the original extradition
request.
Rule 63(4)
50
Authentication
of the relevant documents can take place either under section
9(3)(a)(ii) (“as provided for in the extradition
agreement”)
or section 9(3)(a)(iii). The Applicant's argument deals with section
9(3)(a)(iii), but does not consider section
9(3)(a)(ii). The
Treaty (being the extradition agreement referred to in the
Extradition Act) provides as follows in Article
10:
“
Any
document referred to in Article 9 [which would cover the documents in
question] shall be received in evidence in any proceedings
for
extradition if:
…
3.
Such document is certified or authenticated in any other manner
acceptable by the laws in the Requested State.”
51
Uniform Rule
63(4), if applicable, might provide a complete answer to the question
whether the documents were properly authenticated.
52
In
S.
v. Eliasov
,
1967 (2) SA 423 (TPD)
[15]
the
court did confirm that documents were admissible before a magistrate
in extradition proceedings under Uniform Rule 63(4). It
does not
appear to me that the question whether the Uniform Rules could be
applied to courts of law other than the High Court or
public
officials was considered or argued there, nor whether the Uniform
Rules could or did change the substantive common law.
53
I therefore
conclude that, if applicable, Rule 63(4) would have provided a
complete answer to the admissibility of the documents.
I am
however hesitant to rule on this basis as the issue was not fully
argued before us.
54
The finding
above makes it unnecessary to discuss the further argument by the
Second Respondent, that strict compliance with the
statutory
provisions is not required.
55
It follows, that
the contention that the decision of the Magistrate must be reviewed
and set aside because she admitted inadmissible
evidence must fail,
as the evidence was admissible.
Gross
irregularities
56
This brings us
to the further contention by the Applicant that there were other
gross irregularities which require us to review
and set aside the
decision to admit the original bundle. The Applicant contends that
the admission of the original bundle should
be set aside because of
the cumulative effect of these alleged irregularities.
57
The first
alleged gross irregularity that the Applicant refers to is that the
Magistrate, in her decision to admit the original
bundle, stated (at
page 6 of the decision): "Section 9(3) provides that any
deposition, statement on oath or affirmation may
be received at the
enquiry in evidence if such document is accompanied by a
prescribed
certificate
which is ......
authenticated ....[Emphasis added]" Similar words are repeated
at page 7 of the decision.
58
The Magistrate's
statement is incorrect: It is the document itself that must be
authenticated, not the "prescribed certificate".
There is
also no "prescribed" certificate in the sense that a
certificate is prescribed by regulation in terms of section
18 of the
Extradition Act. There is, of course, a certificate prescribed (in
the wide sense) by section 9(3)(a)(i), which is Schedule
B to the Act
(which follows the form provided for in the Hague Convention
Abolishing the Requirement of Legalisation for Foreign
Public
Documents). Such certificate would not require any further
authentication, as the certificate itself is the authenticating
document.
59
The Magistrate's
statement would have been more accurate had it read: "Section
9(3) provides that any deposition, statement
on oath or affirmation
may be received at the enquiry in evidence if such document is
accompanied by a certificate prescribed in
section 9(3)(a)(i), or
either authenticated by ...." or words to that effect. The
Magistrate's statement seems to contemplate
a more onerous
requirement, (being both the certificate referred to in section
9(3)(a)(i) and further authentication), than is
required by the law,
being one or the other.
60
Nothing flows
from this mistake, however, which is essentially background
discussion and not part of the reasons for her decision.
The
Magistrate did not require both the certificate prescribed (in a wide
sense) by section 9(3)(a)(i) as well as further authentication.
Her reasoning is set out in page 8 of her decision and does not
mention the "prescribed certificate" again. There
is
therefore no "gross irregularity" relating to the
"prescribed certificate".
61
The Applicant
further submits, on this issue, that the Magistrate had a "total
misunderstanding of the workings of section
9(3)(a)" and submits
that Magistrate had asked herself the wrong question. He further
submits that the Magistrate had remained
silent on the alleged
defects in her decision (by not filing an opposing affidavit in these
proceedings) and as such the Applicant's
submission must be accepted.
62
This is not
correct. The reasoning of the Magistrate shows that she did apply her
mind to the right question and came to the right
decision to admit
the original bundle. This therefore does not amount to a gross
irregularity. Furthermore, the fact that the Magistrate
did not file
an opposing affidavit does not mean that the inferences sought to be
drawn by the Applicant should be drawn. These
inferences are that:
62.1
The Magistrate
has a total misunderstanding of the workings of the Act and/or
62.2
The Magistrate
asked herself the wrong question, that is, a question other than that
which the Act directed her to ask, and or
62.3
The Magistrate
fundamentally misdirected herself on the facts and the law.
63
A further
argument put forward in relation to the cumulative effect of the
Magistrate's misdirections relates to the fact that she
cited a short
passage from
S v Davoy
,
1971 (3) SA 899
(A) 901 in support of her reasoning. Counsel
for the Applicant complained that the passage relied upon was not
part of the
judgment itself but was part of the argument of one of
the parties recorded in the report of the case. Counsel did not
submit
however that the quoted part is an incorrect statement of the
law. His criticism was simply with the fact that the Magistrate
stated that the court held when it did not do so. This quote appears
in a background discussion by the Magistrate and did not affect
her
decision or reasoning. It is a simple misstatement with no
effect at all. It is not a gross irregularity.
64
The
Applicant further contends that the Magistrate should not have
referred to the case in any event given that the legal
representatives
did not deal with it in argument. Reliance was placed
on the judgment of
Kauesa
v Minister of Home Affairs
[16]
The statement in
Kauesa
at 973J that presiding officers should not rely on matters not put
before them by litigants and that if they come across a point
not
argued they should put it to counsel is correct as a general
position. This does not mean however that a judge need put every
case
to counsel before it may be referred to it in a judgment. It is the
issue or the point that must be put to counsel, not necessarily
every
case or authority on the issue or point. What needs to be put
to counsel depends of the circumstances of each case.
In this
case the reference to
S
v Devoy
was simply part of the general discussion and did not form part of
the Magistrate's reasoning for admitting the original bundle.
The reference therefore did not amount to a gross irregularity.
65
The
same applies to the criticism of the Magistrate's unilateral
reference to
Abel
v Minister of Justice and others
[17]
, the author Van Wijngaert
and
Garrido
v Director of Public Prosecutions, Witwatersrand Local Division and
others
.
[18]
66
The
Applicant contends, relying on
De
Vos v. Marquard and Co.
[19]
that all of these
individual irregularities cumulatively lead to a gross irregularity.
In addition he submits that the erroneous
reference to the
"prescribed certificate" by itself constitute a gross
irregularity. I am not persuaded that these
two minor mistakes
cumulatively constitute an irregularity.They certainly were not gross
irregularities, either singularly or cumulatively.
67
In
any event, even if there was a gross irregularity, my view is that
the Magistrate came to the correct decision in admitting the
original
bundle. There is no point setting aside her decision to simply
substitute our own decision to admit the documents.
Section 10(2)
Certificate or Affidavit issue
68
The Applicant
argues that the section 10(2) certificate should not have been
admitted into evidence since to be admissible as evidence
it must be
introduced either by way of an affidavit or oral evidence and
inclusion in one or more of the bundles was not procedurally
acceptable.
69
The answer is
that all that is required in terms of section 10(2) for the
certificate to be admitted into evidence is for
the Magistrate
to be satisfied that it "appears to him or her to be issued by
an appropriate authority". For good
reasons, forming part
of the authenticated bundle, it appeared to her to be so and was duly
admitted. As I have found, the
Magistrate was correct in
finding that the certificate was properly issued and, therefore, as
part of the duly authenticated bundle
it was admissible before her.
Judge
commissioning affidavit
70
The Applicant
claims in his founding affidavit that a further ground for review is
that United States District Judge Todd J Campbell
presided over the
superseding indictment, issued the arrest warrant, will preside over
the trial and commissioned the affidavit
of Mr. Hannafan admitted
into evidence.
71
How these
conclusions, even if correct, relate to the relief sought in the
Notice of Motion, being the setting aside the admission
of documents
in evidence, is not explained.
72
In
any event the conclusions by the Applicant are not supported by
facts. The Applicant does not explain how he has personal
knowledge of these conclusions stated as facts.
73
The
conclusion that Judge Campbell presided over the superseding
indictment is simply based thereon that his name appears under
the
case number of the superseding indictment returned by the Grand
Jury. There is no evidence that a judge presides over
a Grand
Jury.
[20]
There is in
any event no evidence that the judge dealt with any issues in this
case, whether procedural or on the merits.
The same applies to
the warrant of arrest. There is no evidence that the judge
issued the warrant or applied his mind to
the matter. As
explained in the "statement under penalty of perjury" of
Ms. Patricia L Petty, a document forming
part of the answering papers
filed herein in which the procedural steps followed in the US Court
are explained, the allocation
to Judge Campbell is provisional and
the Applicant can apply for his recusal.
74
The fact that
the judge commissioned an affidavit does not matter either. In South
Africa the administration of the oath is a completely
neutral
function not involving consideration of the merits of a case. There
is no evidence that the position is different in the
United States of
America.
75
This contention
therefore fails.
Changing the
Certificate: the "X" issue and the pagination of the bundle
76
Finally the
Applicant complains that when Mr. Moroeng verified the gold ribbon
bundle he placed a handwritten "X" on the
top right of the
first page of the that bundle for the purpose of identification.
A copy of the original bundle provided
to the Applicant was also
paginated for reference, but the original was not.
77
This document
states after the operative words of the certificate: "This
certificate is not valid if it is removed or altered
in any way
whatsoever." The Applicant contends in his founding
affidavit that the placing of the "X" and the
pagination of
a copy of the request is a "mala fide and/or unlawful
alteration".
78
In my view what
was done with copies of the original bundle is irrelevant. The
placing of a mark on a document for the purpose
of identification is
not an alteration of the certificate contained in the document in any
way. If it was, this is
clearly a case in which the maxim
de minimis lex non curat
applies.
79
The relief
sought in prayer 3, to declare the document "invalid" must
therefore also fail.
Prayer 2
80
Prayer
2 of the Notice of Motion asks for a declaration that the admission
of the documents by the Magistrate is inconsistent with
the
Constitution. I have already found that the documents were
properly admitted. As such the relief sought in prayer
2 must
fail.
Conclusion
81
The application
is dismissed with costs, including the costs of two counsel.
LL
Burger AJ
I
agree. It is so ordered.
Gamble
J
[1]
This
is the equivalent of the South African Department of International
Relations and Cooperation.
[2]
1959
(3) SA 113
(AD)
[3]
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) at 603F - 604D
[4]
Section
10(1)
[5]
Footnotes
are as they appear in the Magistrate's decision.
[6]
Collins
English Dictionary
[7]
http://www.yourdictionary.com/authenticate.
Access 26 July 2013
[8]
http://research.lawyers.com/glossary/authenticate.html.
Access 26 July 2013
[9]
Chopra
v Sparks Cinemas (Pty) Ltd and another
,
1973(2) SA 352 (D&CLD) at 358D
[10]
1958
(3) SA 672
(W)
[11]
At
page 357D-E
[12]
1985(2)
SA 73 (NCD)
[13]
The
USA is not an associated State. Associated States are certain
foreign States in Africa. See definition of "associated
State" in section 1 and section 6.
[14]
Mr.
Moroeng is the Third Secretary in the South African Embassy,
Washington DC, who signed the green ribbon bundle authenticating
the
signature of Ms. Johonson. Mr. Toledo verified the signature
of Mr. Cole of the US Department of Justice on the face
page of the
red ribbon bundle.
[15]
Appeal
reported as S v Eliasov 1967(4) SA 583 (A)
[16]
1996(4)
SA 965 (NmS) at 973J-974A
[17]
2000(2)
SA SACR 333 (C)
[18]
2007
(1) SACR 1
(SCA)
[19]
1916
CPD 551
at 554
[20]
See
United
States, Petitioner v. John H. Williams, Jr.
504 U.S. 36
(112 S.Ct. 1735
, 118 L.Ed.2d 352)