The Constitutional Court, in a landmark judgment, has ruled the national executive, not the National Prosecuting Authority (NPA), has the right to file extradition applications for accused individuals in foreign states.
The court delivered its judgment on Friday, two months after hearing the NPA’s appeal seeking to overturn Free State High Court judge Phillip Loubser’s finding that the extradition of Ace Magashule’s former personal assistant, Moroadi Cholota, from the US was unlawful.
The high court ruling saw Cholota walk free from prosecution in a R255m asbestos tender corruption case. The tender was awarded to businessperson Edwin Sodi.
Loubser based 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 South African 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 challenge their arrest and effectively flee prosecution.
Deputy chief justice Dunstan Mlambo read the judgment of the Constitutional Court in the two appeal cases in the Schultz and Cholota matters.
Mlambo said the court, in a unanimous decision, found the NPA had no power to file extradition applications.
The court, however, also found the SCA was incorrect in its finding that only the minister of justice has the power — the apex court found the national executive held the power to file applications — not only the justice minister.
The judgment penned by justice Leona Theron acknowledged the question before the court was novel and the top court needed to provide clarity.
“It is declared the NPA has the power to prepare, draft and submit to the national executive extradition requests for the national executive to make such requests to a foreign state,” the judgment reads.
In the Cholota case the court partially upheld the appeal and set aside Loubser’s judgment.
“The respondent’s [Cholota] extradition from the US to South Africa was unlawful. However, the fact that the extradition was unlawful as aforesaid does not of itself deprive the high court of criminal jurisdiction over the respondent.”
The court directed the matter be remitted in the high court. This means Cholota is no longer free and will have to go back to court to fight for her freedom.
The trial in the asbestos case starts on Monday.
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