Abel v Additional Magistrate, Cape Town, and Others; S v Abel

• Jurisdiction: South Africa
• Citation: 2002 (2) SACR 83 (C)

Abel v Additional Magistrate, Cape Town, and Others;
S v Abel
2002 (2) SACR 83 (C)

2002 (2) SACR p83

Citation	2002 (2) SACR 83 (C)
Case No	10456/01 & A941/01
Court	Cape Provincial Division
Judge	Nel J, Conradie J and Thring J
Heard	March 1, 2002
Judgment	March 8, 2002
Counsel	H P Viljoen SC (with Anton Katz) for the applicant/appellant.; M A Albertus SC (with R F Van Rooyen) for the second and third respondents.; L J Van Niekerk for the State.

Flynote : Sleutelwoorde

Extradition — Application for — Extradition based on offences committed in requesting State which were not described in extradition treaty and not offences in South Africa — Finding that person liable to extradition set aside. C

Headnote : Kopnota

A magistrate's court had found that the applicant was a person liable to be extradited to the United State of America to face federal charges in that country. The applicant launched review and appeal proceedings, contending that those offences were not covered by the extradition agreement between the United States and South Africa. The criminal jurisdiction of the Federal Courts of the United States was D only such as was expressly conferred upon them by that country's Congress. The relevant federal offences related to travelling or conspiring to travel by or causing another to travel by means of interstate or international transportation facilities with the intention that a 'murder for hire' be committed. Murder or attempted murder was not required as an element of the offence. A subsequent request for extradition from a state court based on common law offences E was submitted, but the extradition dealt only with the initial request, based on the federal charges. The federal offences were not listed by name or description in the extradition treaty between the two countries. The State averred that the factual allegations relied upon in the initial request for extradition clearly showed that the F applicant was wanted to stand trial for conspiracy to murder and attempted murder and further that the requirement of double criminality was met if the offence was substantially similar in both countries and that a liberal interpretation of the extradition treaty which would allow the extradition was to be preferred as this would accord with South Africa's international obligations. G

Held, that the wording of the charges did not support the State's argument and that argument ignored the fact that a Federal Court in the United States had no jurisdiction in regard to murder or attempted murder committed within the boundaries of a state. (At 90j - 91b.)

Held, further, that the relevant federal offences had no similar or substantially similar counterparts in the South African common law. The call for a liberal interpretation of the treaty was H misplaced as the predicament in which the State found itself was of their own making. If the enquiry had been held pursuant to the warrant issued in the state court, the applicant would have been extradited for offences listed in the treaty. (At 92e - f.)

Held, accordingly, that the offences covered by the request for extradition were not covered by the crimes or offences listed in the extradition treaty and the finding that the applicant was liable to extradition set aside. I

Annotations:

Cases cited

Reported cases

Abel v Minister of Justice and Others 2000 (2) SACR 333 (C) (2001 (1) SA 1230): considered J

2002 (2) SACR p84

McVey (Re); McVey v United States of A America [1992] 3 SCR 475: referred to

Sudar v United States 25 SCR 3d 183 (1981): considered.

Case Information

Appeal and a review. The facts appear from the reasons for judgment.

H P Viljoen SC (with Anton Katz) for the applicant/appellant.

M A Albertus SC (with R F Van Rooyen) for the second and third respondents. B

L J Van Niekerk for the State.

Cur adv vult.

Postea (March 8). C

Judgment

Nel J:

Introduction

At the conclusion of an enquiry held in terms of ss 9 and 10 of the D Extradition Act 67 of 1962 (the Act) the first respondent (the magistrate) found the applicant/appellant (Abel) to be a person liable to be surrendered to the United States on charges relating to the violation of s 1958(a) of Title 18 of the United States Code, ie to travel in or conspire to travel in or to cause another to travel in interstate or foreign commerce with the intent E that a murder be committed as consideration for the receipt of anything of pecuniary value.

Abel noted an appeal against this finding and the resultant order for his committal to prison, on the ground that the magistrate had misdirected himself in holding that these offences were covered by the extradition agreement between the United States and South Africa. F

Abel also launched review proceedings based on certain alleged misconceptions of the magistrate, the admissibility of certain documents and the constitutionality of ss 9 and 10, read with s 11, of the Act.

Background G

On 20 January 1997, the then Minister of Justice signed a notification under s 5(1)(a) of the Act, addressed to the magistrate for the district of Cape Town. It reads as follows:

'I, Dr Abdulah Mohamed Omar, Minister of Justice, hereby give notice under s 5(1)(a) of the Extradition Act 67 of 1962, that I have received a request for the surrender of Ronald Joel Abel to the United States of America.' H

The request for the surrender of Abel followed upon the issue of a warrant for his arrest on 26 July 1996 by the United States District Court for the Southern District of California (a Federal Court). He was indicated on three charges:

(a)

conspiring to travel in or to cause another to I travel in foreign commerce in the commission of 'murder-for-hire' in violation of s 1958(a) of Title 18 of the United States Code.

(b)

Traveling in or causing another to travel in foreign commerce in the commission of 'murder-for-hire' in violation of s 1958(a) of Title 18 of the United States Code. J

2002 (2) SACR p85

Nel J

(c)

Using a firearm during and in relation to federal A crimes of violence, in violation of s 924(c) of Title 18 of the United States Code.

The Department of Justice was uncertain whether these charges conformed with the offences listed in the extradition agreement between the Republic and the United States and on 4 February 1997 requested the Minister to approve and sign another notification pursuant to the B issue of a warrant of arrest by a state court of California charging Abel with conspiracy and attempt to commit murder in violation of ss 182(a)(1), 187(a) and 664 of the California Penal Code. This warrant was issued on 23 January 1997.

The request was submitted to the Minister under cover of a memorandum C signed by or on behalf of the Deputy Director-General: Justice on 3 February 1997, which reads as follows:

'Request for the extradition of Mr A J Abel to the United States of America.

1.

A request for the surrender of Abel to the United States of America was received and submitted to the Minister. D

2.

The Minister gave a notification in terms of s 5(1)(a) of the Act. This notification has as yet not been given effect to. After discussions with the American authorities, it transpired that the offences in respect of which they required the extradition do not fully conform with the offences mentioned in the extradition agreement. It appears that the conduct of Mr Abel constitutes, at least, the offences of attempted murder and conspiracy E to murder. These offences are specified in the agreement (B). As a result we requested an amended request for extradition in respect of the aforementioned charges. This request has now been received and a copy thereof is in the cover, for the Minister's information. It is based on the same prima facie evidence previously received.

3.

As a result, a new notification would appear to be necessary. The notification in terms of s 5(1)(a) of the Act is in the F cover for the Minister to sign, should he approve, please.'

The Minister acceded to the request and signed a new notification dated 6 February 1997. This notification was forwarded to the magistrate, Cape Town, who in turn issued a warrant for the arrest of Abel on 7 February 1997. He was arrested and an enquiry in terms of ss 9 and 10 of the Extradition Act followed in due course. G

The issues

Both the federal and the state charges against Abel relate to the attempted murder of an ex-South African in La Jolla, California, by a person who was allegedly hired by Abel to commit the murder. The H allegations are summarised as follows in a 'complaints summary' filed in the municipal court of San Diego.

'Overt acts

In furtherance of the conspiracy, and to effect the objects thereof, I the following acts, among others, were committed in the county of San Diego, State of California, and elsewhere:

1.

In or about early February 1996, in Cape Town, South Africa, defendant Ronald Joel Abel and Valter Nebiolo discussed a plan to have Sydney Eric Kahn murdered in the United States.

2.

On or about 17 February 1996, in Cape Town, South Africa, defendant J

2002 (2) SACR p86

Nel J

Ronald Joel Abel placed a telephone call to Alfred J Koonin A in Westwood, California during which telephone call defendant Abel arranged for Valter Nebiolo to reside with Alfred J Koonin at Koonin's residence in Westwood, California while defendant Nebiolo was in the United States.

3.

On or about 15 February 1996, in Cape Town, South Africa, defendant Ronald Joel Abel placed a telephone call to Larry Smulowitz B of Momentum Travel during which telephone call defendant Abel arranged for an airline ticket...