Does SA have the required framework for mutual legal assistance and extradition?

April 1st, 2019
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By Mohammed Moolla

It is generally accepted that once a crime has been committed, it should be investigated, the perpetrator should stand trial and on conviction be punished for their unlawful conduct. The challenge that arises is how this could be ensured where the perpetrator is outside the borders of the country in which the crime was committed or where the effect of the crime was felt.

The Extradition Act 67 of 1962 (the Act) regulates South Africa’s (SA’s) extradition procedure.

Extradition is defined as the physical surrender by one state (the requested state), at the request of another state (the requesting state), of a person who is either accused or convicted of a crime by the requesting state.

South Africa currently has extradition agreements with the following countries:

  • Algeria;
  • Australia;
  • Botswana;
  • Canada;
  • China;
  • Egypt;
  • India;
  • Israel;
  • Lesotho;
  • Malawi;
  • Nigeria;
  • Swaziland;
  • the United Arab Emirates (UAE); and
  • the United States.

Extradition treaties with these countries have been signed but need to be ratified –

  • Argentina;
  • Hong Kong; and

Extradition treaties with these countries have been negotiated, but not yet signed –

  • Brazil;
  • Cuba;
  • Hungary;
  • Mexico;
  • Namibia;
  • South Korea;
  • Taiwan; and

Extradition treaties or agreements

The consensus in international law is that a state does not have any obligation to surrender an alleged criminal to a foreign state, because one principle of sovereignty is that every state has legal authority over the people within its borders.

The requested state may surrender the requested individual only after there has been compliance with an extradition agreement between the requesting and requested state; and the domestic laws of the requested state.

The extradition agreement between the requested state and the requesting state determines the offences in respect of which the extradition is possible and the circumstances in which extradition may be refused, whereas domestic law as outlined in legislation prescribes the procedure to be followed in extradition proceedings and some of the circumstances in which extradition may be refused.

Foreign states are divided into three groups

  • States with which SA has an extradition agreement: South Africa has entered into a number of extradition agreements. In 2003 SA also acceded to the multilateral European Convention on Extradition of 1957 and in doing so became a party to an extradition agreement with a further 50 states.
  • States designated by the president in terms of s 2(1)(b) read with s 3(3) of the Act: The President has designated the following states, namely Ireland, Namibia, Zimbabwe and the United Kingdom (UK).
  • States in respect of which the president has consented to the surrender of the fugitive.

Formalities

Article 12 of the Convention prescribes the following formalities:

  • Requests shall be in writing and communicated through diplomatic channel (other means may be communicated by arrangement or direct agreement).
  • The request shall be supported by –

– an original or authenticated copy of conviction and sentence/detention order immediately enforceable or of a warrant of arrest;

– a statement of offences for which extradition is requested. Time and place of their commission, their legal description and relevant legal provisions set out as accurately as possible; and

– a copy of the relevant enactments or where not possible, a statement of the relevant law and as accurate a description as possible of the person claimed together with any other information which will help establish identity and nationality.

Procedure

  • The Minister of Justice receives the extradition request from a foreign state via diplomatic channels (s 4(1)).
  • The minister will then issue a notification to a magistrate who in turn will issue a warrant of arrest (s 5(1)(a)).
  • The arrest and detention are aimed at conducting an extradition inquiry.
  • A person detained under a warrant of arrest is brought before the magistrate in whose area of jurisdiction the person is arrested whereupon the magistrate must hold an inquiry with a view to surrender such person to the foreign state concerned (s 9(1)).
  • If on consideration of evidence adduced at the inquiry, the magistrate finds that the person before them is liable to be surrendered to the foreign state, the magistrate shall issue an order committing such person to prison to await the minister’s decision with regard to their surrender (s 10(1)).
  • The magistrate must, forthwith, issue the committal order together with the copy of the record of proceedings to the minister. The minister may order or refuse surrender to the requesting foreign state (ss 10(4) and 11).
  • Any person against whom an order under s 10 has been issued has the right to appeal to the High Court and no order for surrender of such person shall be executed before the right of appeal has been exercised or waived (ss 13 and 14).

An extradition inquiry is regarded as a judicial and not an administrative proceeding. Extradition proceedings nevertheless remain sui generis in nature and can, therefore, not be described as criminal proceedings. There is an important difference between judicial and executive roles in extradition proceedings.

Although a magistrate fulfils an important screening role to determine whether or not there is sufficient evidence to warrant prosecution in the foreign state, the decision to extradite a person is ultimately an executive one. The pivotal role of the executive in extradition proceedings has been criticised.

Section 14 of the Act provides that an order for extradition may not be executed before the period allowed for an appeal (15 days) has expired, unless the right to appeal has been waived in writing or before such an appeal has been disposed of.

Bail

In terms of s 13(3) a person who has lodged an appeal in terms of subs 1 may at any time before such appeal has been disposed of, apply to the magistrate who issued the order in terms of ss 10 or 12 to be released on bail on condition that such person deposits with the clerk of the court or with a member of the Department of Correctional Services or with any police official at the place where such person is in custody, the sum of money determined by the magistrate.

In terms of s 13(4), if a magistrate orders that the applicant be released on bail in terms of subs 3 the provisions of ss 66, 67, 68 and 307(3) to (5) of the Criminal Procedure Act 51 of 1977 (the CPA), shall mutatis mutandis apply to bail so granted.

It leaves no doubt that the proceedings are criminal in nature. Furthermore, the Act itself does not provide for its own process for a bail application.

In the case of S v Tucker 2018 (1) SACR 616 (WCC) it was stated: ‘In my view, bail application proceedings in extradition proceedings are in essence criminal in nature, as they in substance deal with the determination of sufficient evidence to warrant the arrest, detention and surrender for prosecution of persons accused or convicted of certain offences, and for incidental matters. … [Section] 65 of the CPA is a mechanism for an appeal to the High Court against the refusal of bail or the imposition of a condition of bail by a lower court, and that bail appeals are inherently urgent in nature.’ Such appeal may be heard by a single judge of the High Court.

In the case of Harksen v President of the Republic of South Africa and Others 2000 (2) SA 825 (CC) at para 4 it was stated that an extradition procedure works both on international and domestic plane. On the international plane a request from one foreign state to another for extradition of a particular individual and the response to the request is governed by public international law. The general legal basis for extradition is treaty, reciprocity or comity. However, before the requested state may surrender the requested individual there must be compliance with its own domestic laws. Each state is free to prescribe when and how an extradition request will be acted on and the procedures of arrest and surrender of the requested individual.

It is important that the extradited person have a fair trial. The South African domestic extradition law provides that a person will not be extradited if the extradited person will be prejudiced at their trial in the requesting state by reason of their gender, race, religion, nationality or political opinion.

The matter of S v Dewani (WCC) (unreported case no CC15/2014, 8-12-2014) (Traverso DJP) is noteworthy in this regard. In November 2010, while UK citizen Shrien Dewani and his wife were on honeymoon in Cape Town, Mrs Dewani was shot and killed during a hijacking. Dewani soon thereafter left SA with the permission of the South African law enforcement agencies. It was later alleged during the sentencing of one of the perpetrators involved in the hijacking that Dewani had arranged for the killing of his wife. The motive for the killing is unknown, although unproven allegations have been made to the effect that it was a forced marriage, which did not carry Dewani’s approval and withdrawal from the marriage would have resulted in his being disowned by his family. Dewani was arrested in the UK and released on bail pending an extradition application. He denied involvement in the killing of his wife and alleged that on being extradited to SA his human rights would be infringed as he would be in danger of gang-related sexual violence in prison. The application by the South African government for Dewani’s extradition, however, was successful.

In a globalised world the commission of cross-border crimes, such as human trafficking, terrorism, drug trafficking and environmental crimes are bound to increase, especially where a legal system does not provide sufficiently for extradition. Criminals will exploit deficiencies in a legal system to their own advantage. Countries without safeguards against such exploitation may become havens for fugitive criminals. This is one of the reasons why attention is increasingly being given to extraterritorial jurisdiction, to prevent criminals from escaping justice.

South Africa went through this process in the extradition of George Louca, the man who was accused of killing strip-club boss, Lolly Jackson. Louca fled to Cyprus. He was arrested there after the South African authorities appealed to their Cypriot counterparts and Louca appeared in a local Cypriot court.

A mutual legal assistance treaty is an agreement between two or more countries for the purpose of gathering and exchanging information in an effort to enforce public or criminal laws.

Conclusion

Physical and electronic crimes are increasingly being committed across borders. Criminal networks are taking advantage of opportunities resulting from dramatic changes in world politics, business, technology, communications and exploiting in international travel and effectively utilise these opportunities to avoid and hamper law enforcement investigations. Criminals are always looking to exploit deficiencies in the system for their advantage. The question remains whether SA has succeeded to establish the required framework as a fully-fledged member of the international community to make a positive contribution in the fields of mutual legal assistance and extradition.

Mohammed Moolla BProc (UKZN) is a Senior Magistrate at the Wynberg Magistrate’s Court in Cape Town.

This article was first published in De Rebus in 2019 (April) DR 17.

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