South Africa’s Extradition Laws Under Fire at the Constitutional Court
Source: MDNtv News
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“Constitutional Court proceedings
South Africa’s extradition system is facing one of its most significant legal tests in years as the Constitutional Court considers who has the lawful authority to request the extradition of persons from foreign countries. The court is being asked to clarify whether this power belongs to the Minister of Justice or to the National Prosecuting Authority. The outcome could reshape how the state brings fugitives back to South Africa to stand trial.
How the dispute started
The present uncertainty was triggered by a 2024 Supreme Court of Appeal judgment involving Johnathan Schultz who was due to be extradited from the United States. Schultz argued that the National Prosecuting Authority did not have the power to initiate an extradition request. The Supreme Court of Appeal agreed and ruled that in terms of the Extradition Act it is the Minister of Justice who must make such a request.
Importantly the Supreme Court of Appeal said that its interpretation applied retrospectively. That meant extradition requests that had already been made by the National Prosecuting Authority could now be challenged.
Effect on the Moroadi Cholota matter
The ruling soon affected a high profile corruption related case. Relying on the Schultz judgment the Free State High Court overturned the extradition of Moroadi Cholota who had been the personal assistant to former Free State premier Ace Magashule. She was wanted in connection with the R255 million Free State asbestos project.
The court held that her extradition from the United States was unlawful because the request had been made by the National Prosecuting Authority and not by the Minister of Justice. As a result she no longer had to appear in South Africa to face the criminal charges.
NPA warns of serious consequences
The National Prosecuting Authority is now appealing both the Schultz decision and the subsequent ruling in the Cholota matter. Advocate Kevin Hopkins SC appearing for the National Prosecuting Authority told the Constitutional Court that if the Supreme Court of Appeal judgment is applied in full and retrospectively then many of South Africa’s previous and pending extradition requests can be reviewed and possibly set aside.
He told the court that this could have serious and harmful consequences for the criminal justice system because extradition is a vital tool for ensuring that accused persons cannot evade prosecution by leaving the country.
Hopkins explained that for decades the National Prosecuting Authority and its predecessors had been initiating outgoing extradition requests. This was done openly and in good faith. No court and no minister had ever suggested that the authority did not exist.
A gap in the Extradition Act
Hopkins further argued that the Extradition Act describes in detail how requests from foreign states to South Africa must be handled. However it does not describe in the same way how South Africa should make requests to other countries. Because of this legislative gap it was always assumed that the prosecuting authority could initiate outgoing extraditions especially where the purpose was to bring an accused person before a South African court.
Trengove argues for the State
Advocate Wim Trengove SC who appeared for the prosecution in the Cholota matter told the Constitutional Court that the High Court was wrong to find that it lacked jurisdiction. He said the matter is clearly in the public interest because it affects future extradition cases and the ability of South Africa to prosecute crime that has an international element.
Trengove submitted that the Supreme Court of Appeal was not correct to declare that only the Minister may request extradition. He drew a distinction between incoming requests which are diplomatic and which fall under the Minister and outgoing requests which are prosecutorial and which fall under the National Prosecuting Authority. He also pointed out that Cholota was extradited under a valid order of a United States court which meant that the extradition was in substance lawful.
Why this case matters
The Constitutional Court’s final decision will decide more than just the Schultz and Cholota matters. If the Supreme Court of Appeal’s ruling is confirmed and applied to past cases then a number of fugitives may attempt to challenge their extradition on technical grounds. This could weaken South Africa’s ability to prosecute cross border corruption fraud and organised crime.
However if the Constitutional Court finds that the National Prosecuting Authority may lawfully initiate outgoing extradition requests then the status of previous requests will be protected and the criminal justice system will retain an important mechanism for bringing accused persons back to South Africa.
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