The Constitutional Court will provide clarity on a much-contested legal question on who has the power to make extradition applications on behalf of SA to foreign states in criminal cases.
The court’s ruling will set precedence as the National Prosecuting Authority (NPA) has been entangled in a legal conundrum on the laws governing extradition to foreign countries. The top court last week granted the NPA leave to appeal two cases which it lost based on extradition applications.
The NPA initiated the appeal last year against SA fugitive Johnathan Schultz, who faced theft charges but won the case at the Supreme Court of Appeal (SCA) on the basis of the unlawfulness of his extradition application. He lives and works as an artist in Las Vegas, US.
The SCA ruled that the justice minister was the only person who had the power to make an extradition request to the US. It overturned high court judge Nicoline Janse van Nieuwenhuizen’s ruling which said the constitution empowered the NPA as the relevant authority to make extradition requests.
The high court in Bloemfontein in June relied on the SCA judgment in finding that corruption accused Moroadi Cholota’s extradition from the US was unlawful. The NPA had done the application and the department of international relations & co-operation signed off papers.
University of Johannesburg international law expert Prof Hennie Strydom told Business Day the heart of the legal battle was a question about the NPA’s independence and powers.
“First we have a high court ruling which says the NPA has authority to sign off on extradition requests. The SCA overturned that judgment. For legal certainty and determining the future processes it is very important that we have a final ruling by the Constitutional Court on the matter,” he said.
Strydom said the NPA could win the case because section 179 of the constitution empowers the NPA to handle prosecution matters on behalf of the state.
This was the same section the high court relied on in its ruling. The section stipulates the prosecuting authority has the power to institute criminal proceedings on behalf of the state and to carry out any necessary functions incidental to instituting criminal proceedings.
If the power of signing off extradition is transferred to the minister we may have a situation where an executive functionary may intervene in extradition proceedings against somebody who should be extradited to SA to face criminal charges.
— Prof Hennie Strydom
“The other reason it may be successful is to consider the powers given to the NPA as the prosecuting authority that it must act independent of the executive power,” he said.
“If the power of signing off extradition is transferred to the minister we may have a situation where an executive functionary may intervene in extradition proceedings against somebody who should be extradited to SA to face criminal charges.”
In an affidavit at the Constitutional Court, the NPA warned its independence was jeopardised by the SCA finding. The order “deprived the NPA of its prosecutorial independence and opened the door to political interference in the justice system”, the NPA papers read.
The NPA argued that the consequence of the SCA’s judgment, if not overturned, would lead to the escape of 89 of the country’s “most serious fugitives”.
The NPA argued the Extradition Act was silent on who has the power to issue outgoing requests. The act gave the justice minister power in respect of incoming extradition requests.
Legal analyst Llewelyn Curlewis differed with Strydom and said the top court would likely rule against the NPA. He said the reading of the Extradition Act empowered the minister.
Curlewis said if the top court agrees with the SCA and makes a retrospective order (an order which has an effect on past cases) and not a prospective one this would “open a can of worms for the NPA”.
“There will be potential civil claims against the state if this matter is not reconsidered by the ConCourt to the benefit and advantage of the NPA.”
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