The Constitutional Court was asked on Tuesday to decide which of the National Prosecuting Authority (NPA) and the minister of justice has the right to file extradition applications for accused people in foreign states.
The NPA has lodged an appeal seeking to overturn Free State high court judge Phillip Loubser’s ruling, which found the extradition of Ace Magashule’s former personal assistant, Moroadi Cholota, from the US was unlawful.
The ruling in June this year saw Cholota walking free from prosecution. Her boss, Magashule, still faces charges of receiving R10m in bribes in a R255m tender awarded to corruption-accused businessperson Edwin Sodi.
Loubser pinned his judgment on the Supreme Court of Appeal (SCA) order, which found the justice minister was the only person who had the power to make an extradition request to the US in the case of SA fugitive Johnathan Schultz, who faced theft charges and lives in the US.
The SCA judgment opened the floodgate for accused in cases in which the NPA filed extraditions to foreign states to flee prosecution, the NPA contends.
Advocate Wim Trengove, representing the NPA, argued the effect of the SCA judgment was a breach of the constitutional provision that empowers the NPA to handle prosecution matters.
“The power to request extradition rests with the NPA and not with the minister of justice. The SCA was mistaken in [the] Schultz [case],” he argued.
He argued Cholota was extradited from the US after US judge Erin Aslan of the Maryland district court approved SA’s extradition application, having found that the evidence provided by SA was “sufficient”.
Trengove argued Cholota should have contested the legality of her extradition in the US and not in SA, because the court order was not approved in SA.
“It is not competent for an SAcourt to sit and judge on the validity of a US court order.”
Trengove argued that if the NPA was wrong on its first two submissions, “then we submit the extradition of Cholota was unlawful”, but it would have been as a result of an error of law made in good faith by the prosecution in Cholota’s case.
He argued if the NPA was found to have acted unlawfully, the high court should not have declined to exercise jurisdiction on Cholota’s prosecution on corruption charges based on the extradition process.
He argued Cholota’s legal team brought the Schultz case at the last stages of litigation, and the NPA was not granted a fair opportunity to tackle the matter. For that reason, Trengove, in one proposed remedy, asked the top court to refer the matter back to the high court to be determined afresh.
“We submit the hearing was unfair.”
Trengove pinned his argument on the fact that the NPA had the legal powers to make extradition applications, referring to a previous Constitutional Court judgment of Samuel Kaunda.
“In terms of the constitution, the prosecuting authority, headed by the national director of public prosecutions, has the power to institute criminal proceedings on behalf of the state and to carry out any necessary functions incidental to the instituting of criminal proceedings. This would include applying for extradition where this is necessary,” the Kaunda judgment says.
Trengove argued the judgment contradicted the findings of the high court and those of the SCA.
He contended that if the minister of justice held the power to file extraditions, it would strip and render the NPA’s powers to prosecute into the hands of a politician, the minister of justice.
The Extradition Act stipulates the minister has the power to consider incoming extradition applications but is silent on outgoing applications.
Trengove said the NPA’s power in extradition is vested in section 179 (2) of the constitution.
“The prosecuting authority has the power to institute criminal proceedings on behalf of the state and to carry out any necessary functions incidentally to instituting criminal proceedings,” according to the constitution.
Trengove argued the judgment in the Schultz case disregarded the constitution.
“What it does is to put the power to prosecute in political hands, and the whole purpose of the section 179 of the constitution is to ensure the power of the constitution is held in independent, apolitical hands.”
He said the principle to observe diplomatic issues in extradition matters could be addressed by the department of international relations & co-operation.
The NPA has for years been processing the extradition applications with the department. The SCA judgment triggered a change in how the applications are processed.
SA and the US have signed treaties on extradition; Trengove argued the treaties were silent on who has powers to apply for extraditions.
“The extradition act is silent on the outgoing requests,” said Trengove.
“The extradition treaty is silent on who should make the request for extradition; it leaves the identification of the party to make extraditions to the domestic law of the state parties.
“It cannot be said that the treaty suggests it has to be made by political heads of the parties.”
Loyiso Makapela, representing Cholota, argued the top court could not overturn the Schultz judgment because it was not appealed by the NPA and remains binding.
“If a litigant has not brought a matter on appeal before the court, that court cannot overturn that decision. This court cannot overturn Schultz. Further, it cannot be found that Loubser was not bound by the [SCA] decision at the time.”
Constitutional Court judge Steven Majiedt referred Makapela to a recent judgment the court made and effectively overturned a judgment that was not appealed but affected other cases.
The court reserved judgment.
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