Extradition request by Botswana for 'fraudster' was lawfully received: SCA

10 February 2021 - 15:30 By ernest mabuza
The Supreme Court of Appeal has dismissed an appeal by a businessman who is contesting the lawfulness of his detention pending an extradition request by Botswana. Stock photo.
The Supreme Court of Appeal has dismissed an appeal by a businessman who is contesting the lawfulness of his detention pending an extradition request by Botswana. Stock photo.
Image: 123RF/Stockstudio44

The Supreme Court of Appeal (SCA) on Wednesday dismissed an appeal by a businessman arrested in SA who is contesting the lawfulness of his detention pending an extradition request by Botswana.

Timothy Marsland, who has dual citizenship in SA and the UK and residency in Botswana, was arrested at Johannesburg's OR Tambo International Airport on July 12 2019 on his way to Germany.

He was arrested after Botswana caused Interpol to issue a Red Notice for his arrest.

The Red Notice alleged Marsland had laundered 200,000 pula (R269,800) from the Botswana Public Officers Fund while he was a director of Capital Management Botswana, which was entrusted to manage and invest the funds.

The notice also claimed that he attempted to obtain, by false pretences, 71 million pula (R95.7m) from First National Bank of Botswana.

Marsland's application to be released on bail was refused by the Kempton Park magistrate's court on August 8 that year.

The director of public prosecutions then made an application to the magistrate for the matter to be transferred to another court for purposes of an extradition enquiry. Marsland opposed that application on the grounds that no extradition application was pending before any court in SA. As a result, Marsland then sought his release from custody.

Marsland argued that the minister of justice never personally issued a notice for his extradition, nor did he receive an extradition request.

The magistrate refused to release him from custody and held that the application for his extradition had in fact been received by the minister and by the director of public prosecutions before the expiry of the 30 days after his arrest.

Dissatisfied with this ruling, Marsland launched an application in the high court in Johannesburg for the review and setting aside of the magistrate's decision. The high court dismissed Marsland's application with costs in September 2019.

In the judgment passed by the full bench of the SCA on Wednesday, the court said there was no substance to Marsland's argument that the request for his extradition had not been properly received as at August 12 2019.

The SCA said it was submitted on behalf of Marsland that the request had to be received by the minister of justice directly. It said for that interpretation to be accepted, one would have to ignore the words “diplomatic channel” and “ministries” in article 6 of the Southern African Development Community protocol on extradition.

“Needless to say, this would not yield a sensible meaning. The Oxford Dictionary describes ‘ministry’ as (in certain countries) ‘a government department headed by a minister'.

“This meaning of the word ‘ministry’ puts to bed the argument that the request had to be received directly by the minister.”

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