The National Prosecuting Authority (NPA) has a slim chance of winning a crucial appeal at the Constitutional Court in a legal battle relating to which organ of state has the power to make extradition applications to foreign states.
This is according to legal analyst and Legal Practice Council deputy chair Llewelyn Curlewis.
The NPA initiated the appeal against a judgment made by the Supreme Court of Appeal’s full bench, which found only the minister of justice has power to make applications to the US for extraditions. This triggered a change in how the country dealt with extraditions in the past 30 years.
SA fugitive Johnathan Schultz, who faced theft charges, won the case and continues to live freely in the US.
The judgment opened the door for corruption accused Moroadi Cholota to escape standing trial with her former boss, Ace Magashule, in the asbestos tender case in the Free State high court.
Curlewis, who is also a senior law lecturer at the University of Pretoria, was not confident the NPA could win the case because the “Extradition Act has a simple reading; it affords the power to the minister”.
“I do not think they have a leg to stand on at the Constitutional Court. I think the SCA was correct in the decision,” he said.
“It is one thing to say one judge was wrong but to say five judges were wrong, that takes some doing.
“It is very clear that the wording of the act is very specific and if you do not comply with it, then the principle of legality in SA says you cannot stand with dirty hands before the court.”
The NPA has challenged the Cholota judgment. Curlewis said it was a good that the NPA appealed because if the state had not it would have be an admission to “being incompetent”.
The NPA has pinned its hopes on the Constitutional Court to avoid failures like in the Cholota case by asking the top court to rule in its favour.
In an affidavit at the Constitutional Court filed last year, NPA head in Johannesburg, Andrew Chauke argued the SCA’s finding had a detrimental effect on the justice system.
The order “deprived the NPA of its prosecutorial independence and opened the door to political interference in the justice system”, he said.
“It granted the justice minister a power to act at the international level and make decisions about diplomatic issues, which should rather be granted to Dirco [department of international relations and co-operation], as Dirco is the government entity which both in practice and in law, is responsible for questions of a diplomatic or foreign nature.”
The NPA argued that the SCA order put into jeopardy pending extradition applications.
“The consequence of SCA’s judgment, if not appealed, will thus [be] devastating to say the least: The blow to the public’s confidence in the legal system and legal system if, at a single stroke, 89 of the country’s most serious fugitives from justice are allowed to escape can only be imagined.”
The Extradition Act did not stipulate that only the justice minister had the power, NPA said: “The Extradition Act is silent on who has the power to issue outgoing requests.”
The NPA argued that the act gave the justice minister power in respect of incoming extradition requests, not outgoing. It contended it had acted lawfully by working with Dirco in extradition applications.
The NPA was adamant the top court had to reverse the SCA order to avoid corruption accused walking free.
“It is no exaggeration to say that years of careful investigation, countless hours of effort, hundreds of millions (if not more), the confidence of the public in the criminal justice system, and SA’s international reputation as a country which does not tolerate crime, hang in the balance.
“The NPA carefully contends that it is necessary for this court to remedy the errors made by SCA.”
The judgment could negatively affect the country’s ratings by the Financial Action Task Force (FATF) and trigger an investment drought, NPA said.
“A very possible consequence may be the downgrading of SA’s ‘grey list’ status by the Financial Action Task Force, the global money-laundering and terrorist finance watchdog.”
The Constitutional Court has not yet granted the NPA leave to appeal.
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