The Constitutional Court has to decide on what has transversed into a grey area of South African law on who has the right to file extradition applications for accused in foreign states — the National Prosecuting Authority (NPA) or the minister of justice.
The question before the top court is raised by the NPA’s appeal seeking to overturn judge Phillip Loubser of the Free State high court’s judgment which found in June that the extradition of Ace Magashule’s former personal assistant, Moroadi Cholota, from the US was unlawful.
The court’s judgment led to Cholota walking free of prosecution, as her boss, Magashule, faces charges of receiving R10m in bribes linked to a corrupt human settlement scheme, 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 South African fugitive Johnathan Schultz, who faced theft charges and lives in the US.
The SCA judgment has opened a floodgate for accused in cases in which the NPA filed extraditions to foreign states to flee prosecution.
Advocate Wim Trengove, representing the NPA, argued the SCA judgment was effectively in breach of the constitutional provision which 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 Schultz,” he argued.
He argued Cholota was extradited after US judge Erin Aslan of the Maryland district court approved the extradition application, having found that the evidence provided by South Africa was “sufficient”.
Trengove argued Cholota should have contested the legality of her extradition in the US and not in South Africa, because the court order was not approved in South Africa.
“It is not competent for a South African court 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.
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 constitution is held in independent, apolitical hands.
— Advocate Wim Trengove
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 Schultz in the reply to submission 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 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 reads.
Trengove argued the judgment was a direct contradiction to the findings of the high court and those of the SCA.
He contended that if the minister of justice holds the power to file extraditions, then it would strip and render the NPA’s powers to prosecute to the hands of a politician, the minister of justice.
The Extradition Act stipulates that 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,” the constitution reads.
Trengove argued that Schultz’s judgment was a disregard of 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 constitution is held in independent, apolitical hands.”
He said the principle to observe diplomatic issues could be addressed by the department of international relations and cooperation (Dirco).
South Africa and US have signed treaties on extradition.
“The extradition act is silent on the outgoing requests. 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,” Trengove said.
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 which effectively overturned a judgment that was not appealed but affected other cases.
Makapela argued the NPA had the right to write requests for extraditions, but those applications would be subject to the justice minister’s approval.
Asked which law or legislation expressed the sequence of the application, she said there wasn’t one that directly expressed the arguments, but existing laws and legislations could be interpreted in that way.
The court reserved judgment.
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