Director of Public Prosecutions, Cape of Good Hope v Robinson

• Jurisdiction: South Africa
• Judge: Langa ACJ, Mokgoro J, Moseneke J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 02 December 2004
• Citation: 2005 (4) SA 1 (CC)
• Docket Number: CCT 15/04
• Hearing Date: 24 August 2004
• Counsel: P Hodes SC (with him Anton Katz) for the applicant. J C Heunis SC (with him E van der Horst and M F Osborne) for the respondent.
• Court: Constitutional Court

Yacoob J:

Introduction F

[1] Mr Robinson, the respondent, is a South African citizen who was convicted by a Canadian court in 1996 of sexually assaulting a 14-year- old girl in Canada. He fled to South Africa immediately after conviction and was sentenced in his absence by the same court to three years' imprisonment. In due course the Canadian government requested G the South African government to extradite Mr Robinson to Canada to serve the sentence. He was eventually brought before a Wynberg magistrate pursuant to the provisions of the Extradition Act [1] (the Act) for the purpose of determining whether he was liable to be surrendered in terms of s 10 H of the Act. The magistrate found that he was. However, the respondent successfully appealed to the Cape of Good Hope High Court (the High Court). [2] In allowing the appeal, the High Court held that Mr Robinson was not liable to be surrendered because if extradited to Canada he would have to serve a sentence of imprisonment that had been imposed in his absence. In these circumstances, so the High Court held, Mr Robinson's right to a fair I trial would have been violated. The

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High Court accordingly made an order discharging the respondent in terms of s 10(3) of the Act. A The Cape of Good Hope Director of Public Prosecutions (the DPP) seeks leave to appeal against this judgment. The arguments of the parties will be better appreciated if some aspects of the Act are briefly described at the outset.

Some aspects of the Act B

[2] The Act determines the conditions that must be complied with on the domestic plane before any person sought by a foreign State to undergo trial or serve a sentence there can be surrendered to the requesting State for that purpose. [3] Section 3 of the Act distinguishes between three types of extradition to a foreign State: [4] Where South Africa has C concluded an extradition agreement with the foreign State, [5] where there is no extradition agreement in place [6] and where the foreign State is a 'designated State'. [7] The extradition cases so far considered by this Court [8] were both concerned with extradition proceedings where there was no extradition D agreement in existence and where the foreign State concerned was not a designated State. One of the issues in this case is whether the extradition agreement [9] between Canada and the Republic of South Africa that came into force more than a year before the enquiry was held was applicable to that enquiry.

[3] The extradition process as well as the nature of the proceedings before the magistrate could differ significantly depending E on whether the Act alone is applicable or an extradition agreement is in force. In the absence of any agreement, the President must consent to the surrender of the person sought before the machinery of the Act can be put into operation for the purpose of determining whether or not there should be an extradition. Moreover, the determination by the F extradition magistrate as to whether the person is liable to be surrendered is made by reference to the provisions of the Act alone. [10] If, however, there is an extradition agreement in force, no presidential consent is necessary to trigger the process of extradition. [11] In addition, the decision as to whether a person is to be extradited, G including the question as to whether documents have been authenticated appropriately, must be made by reference to the agreement and the Act. [12]

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[4] The Act provides for two types of extradition enquiry: One applies in limited circumstances if extradition is sought by an A associated State, [13] and the second applies in all other cases where extradition is requested by a foreign State. In the first case, the extradition is commenced in terms of s 4(3) read with s 6 of the Act and the enquiry conducted is that described in s 12 of the Act. [14] In all other cases, the extradition process begins in terms of a s 4(1) request and the extradition enquiry is governed by s 10 of the B Act. [15]

[5] Section 10 of the Act requires the magistrate to determine whether the person is liable to be surrendered to the foreign State concerned and, in the case where the person is accused of the commission of an offence, whether there is sufficient evidence to warrant a prosecution in the foreign C State. [16] A magistrate who makes a positive finding in relation to these matters must make an order committing that person to prison 'to await the Minister's decision with regard to his or her surrender'. [17] If the magistrate finds that the evidence does not warrant the issue of an order of committal or that the required evidence is not forthcoming within a D reasonable time she must discharge that person. [18] A magistrate issuing a warrant for committal to prison is obliged to forward a copy of the record of the proceedings together with a report deemed by the magistrate to be necessary to the Minister immediately. The magistrate does not in a s 10 enquiry make an order for the surrender of the person sought to be extradited. A person may not be extradited consequent upon the magistrate's decision. She may be committed to E prison only.

[6] The Minister of Justice makes the decision whether or not to surrender the person concerned to the foreign State in an extradition commenced in terms of s 4(1), and after a s 10 enquiry. The Minister is empowered to do this by the provisions of s 11 of the Act. Section 11 provides: F

'Minister may order or refuse surrender to foreign State

The Minister may -

(a)

order any person committed to prison under s 10 to be surrendered to any person authorised by the foreign State to receive him or her; or G

(b)

order that a person shall not be surrendered -

(i)

where criminal proceedings against such person are pending in the Republic, until such proceedings are concluded and where such proceedings result in a sentence of a term of imprisonment, until such sentence has been served; H

(ii)

where such person is serving, or is about to serve a sentence of a term of imprisonment, until such sentence has been completed;

(iii)

at all, or before the expiration of a period fixed by the Minister, if he or she is satisfied that by reason of the trivial nature of the offence or by reason of the surrender not being required in good faith or in the I

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interests of justice, or that for any other reason it would, having regard to the distance, the facilities for A communication and to all the circumstances of the case, be unjust or unreasonable or too severe a punishment to surrender the person concerned; or

(iv)

if he or she is satisfied that the person concerned will be prosecuted or punished or prejudiced at his or her trial in the foreign State by reason of his or her gender, race, religion, nationality or political opinion.' B

[7] In summary therefore, a person whose extradition is requested by a foreign State in terms of s 4(1) must be brought before an extradition magistrate who determines whether the person is liable to be surrendered in terms of s 10 of the Act. The Minister cannot make an order for the extradition of any person unless a magistrate has committed that person to prison after a s 10 enquiry. An order of C committal by a magistrate is a prerequisite to the Minister's decision to surrender. The extradition magistrate and the Minister both play a role in the extradition if there is a s 10 enquiry.

[8] As I have already said, the s 12 enquiry cannot be conducted unless the State seeking extradition is an associated State. D Canada is not. A brief account of s 12 and the way in which it differs from s 10 of the Act remains necessary however. Section 12 of the Act provides:

'Enquiry where offence committed in associated State E

(1) If upon consideration of the evidence adduced at the enquiry referred to in s 9(4)(b)(ii) the magistrate finds that the person brought before him or her is liable to be surrendered to the associated State concerned, the magistrate shall, subject to the provisions of ss (2), issue an order for his or her surrender to any person authorised by such associated State to receive him or her at the same time informing him or her that he or she may within 15 days appeal against such order to the Supreme Court. F

(2) The magistrate may order that the person brought before him or her shall not be surrendered -

(a)

where criminal proceedings against such person are pending in the Republic, until such proceedings are concluded and where such proceedings result in a sentence of a term of imprisonment, until such sentence has been served; G

(b)

where such person is serving, or is about to serve a sentence to a term of imprisonment, until such sentence has been completed; or

(c)

at all, or before the expiration of a period fixed by him or her, or make such order as to him or her seems just if he or she is of the opinion that -

(i)

by reason of the trivial nature of the offence or by reason of H the surrender not being required in good faith or in the interests of justice, or that for any other reason it would, having regard for the distance, the facilities for communication and to all the circumstances of the case, be unjust or unreasonable or too severe a punishment to surrender the person concerned; or

(ii)

the person concerned will be prosecuted or punished or prejudiced at his or her trial in the associated State by reason of his I or her gender, race, religion, nationality or political opinion.

(3) If the magistrate finds that the evidence does not warrant the issue of an order under ss (1) or that the required evidence is not forthcoming within a reasonable time and the delay is not caused by the person brought before him or her, he or she shall discharge that person.' J

Yacoob...