Director of Public Prosecutions, Cape of Good Hope v Robinson

• Jurisdiction: South Africa
• Citation: 2005 (4) SA 1 (CC)

Director of Public Prosecutions, Cape of Good Hope v Robinson
2005 (4) SA 1 (CC)

2005 (4) SA p1

Citation	2005 (4) SA 1 (CC)
Case No	CCT 15/04
Court	Constitutional Court
Judge	Langa ACJ, Mokgoro J, Moseneke J, O'Regan J, Sachs J, Skweyiya J, Van Der Westhuizen J and Yacoob J
Heard	August 24, 2004
Judgment	December 2, 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.

Flynote : Sleutelwoorde B

Court — Constitutional Court — Jurisdiction — Constitutional matters — What constitutes — Extradition — Whether extradition magistrate or Minister having power to consider if and extent to which person's constitutional rights violated if she or he C extradited a matter concerned with enforcement of person's constitutional fair trial right — So, too, question whether extradition magistrate should discharge person and preclude Executive from making decision to extradite if there is some danger that fair trial rights of person would be violated upon extradition — Extradition of South African citizen raises constitutional matter because citizen will be formally removed from the D country to stand trial or serve period of imprisonment, which will have impact on constitutional rights of person — All people unlawfully extradited to serve sentence of imprisonment abroad will have constitutional rights infringed.

Appeal — To Constitutional Court — By whom — Appeal by Director of Public Prosecutions against E decision not to extradite person — No substance to argument that legislation, other than s 167(6) of Constitution, a prerequisite for appeal to Constitutional Court on constitutional matter when it is in interests of justice to do so — Meaning of word 'person' in s 167(6) to be determined in its context and not excluding organs of State — Rules of Constitutional Court have to make provision for organs of State to appeal to Constitutional Court F directly when it is in interests of justice, subject to leave of Court.

Appeal — To Constitutional Court — By whom — Appeal by Director of Public Prosecutions against decision not to extradite person — Whether State having interest in cause — Director more than conduit for foreign State — G

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Except in extradition proceedings initiated by warrants of arrest issued in associated State, extradition proceedings A before magistrate held because request received from foreign State — State having to decide whether evidence available justifying initiation of proceedings before magistrate — Director normally making decision whether to institute or continue extradition proceedings — State in lower court proceedings contending that person ought to be extradited — Such contention really part of attempt by B State to extradite person because State obviously forming view, in conduct of its foreign relations, that person should be extradited — Submission that State not a party or litigant in extradition proceedings misplaced.

Extradition — Application for — Requirements under Extradition Act 67 of 1962 — Application of extradition treaty between South Africa and foreign C State — Extradition agreement concluded after person's extradition requested, but before enquiry held — Extradition agreement applicable to matter.

Extradition — Application for — Requirements under Extradition Act 67 of 1962 — Person 'liable to be surrendered' — Section 10(1) — Powers of D court hearing extradition request — Magistrate conducting s 10 enquiry, as distinct from magistrate conducting s 12 enquiry, making no order to surrender — Section 11 not obliging Minister to order extradition — Finding that person liable to be surrendered in terms of s 10(1) obliging nobody to do anything; decision placing no obligation whatsoever, whether directly or indirectly, upon Minister or any other organ of State — Scheme of Act making it quite clear that question E whether person sought to be extradited would become victim of unfair trial as result of extradition to be weighed in equation at time when consideration given to whether there should be surrender — Premature to take this factor into account any earlier — Nothing constitutionally objectionable in statutory scheme requiring magistrate to determine whether person F sought to be extradited convicted of extraditable offence and thereafter to grant Minister discretion, including discretion to determine whether it is in interests of justice to extradite any person — Act expressly contemplating that any Provincial or Local Division of Supreme Court can upon application made after reasonable notice to Minister, order discharge from custody of person sought to be extradited on ground that there was not sufficient cause G for her or his further detention.

Constitutional law — Human rights — Enforcement of — Powers of Courts — Power of Court to construe legislative provision consistently with Constitution not unqualified — Court cannot give meaning to provision which it regards as consistent with H Constitution without more — Provision concerned has to be reasonably capable of preferred construction without undue strain to language of provision.

Extradition — Authentication of documents — Treaty between South Africa and Canada — Treaty providing that documents relied upon to be I authenticated either by statement of Minister responsible for Justice or by statement of person designated by that Minister and if person designated by Minister, designation to be made under seal of that Minister — Such not meaning that Minister has to make statement to effect that she or he designated person concerned — Requirement limited only to situation where she or he authenticated document, in other words where documents J

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not authenticated by designated person — Has to be clear from A all circumstances that Minister's seal affixed for purpose of designating person and for no other purpose and that placement of seal has effect of designating particular person without ambiguity — Where Minister has designated person, there has to be statement by person designated identifying person who has signed document requiring authentication, including position and title of signatory — Article 8 of relevant extradition agreement B not requiring statement by person who is designated by Minister to effect that she or he so designated.

Headnote : Kopnota

The respondent, a South African citizen, had been convicted by a Canadian court. He had fled to South Africa immediately after conviction and was sentenced in his absence by the same court to three C years' imprisonment. In due course the Canadian government requested the South African government to extradite the respondent to Canada to serve the sentence. He was eventually brought before a magistrate pursuant to the provisions of the Extradition Act 67 of 1962 (the Act) for the purpose of determining whether he was liable to be surrendered in terms of s 10 thereof. The magistrate, accepting the documentation D placed before her, found that he was. The respondent thereupon successfully appealed to a High Court. In allowing the appeal, the High Court held that the respondent 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 and that accordingly his right to a fair trial would have been violated. The Court further E found that a court, rather than the Minister, should determine whether a person was liable for extradition where it was clear that her or his fundamental rights would be infringed. That Court did not decide whether the documents before the magistrate had been properly authenticated, either in terms of the Act or an extradition agreement with Canada. Article 8 of the extradition treaty provided that where the law of the Requested State required authentication, documents F should be authenticated by a statement by the Minister responsible for Justice or a person designated by her or him under the seal of that Minister identifying the person who had signed the document, including that person's position or title. The High Court ordered that the respondent be discharged in terms of s 10(3) of the Act. The Director of Public Prosecutions, Cape of Good Hope, sought leave to G appeal to the Constitutional Court against the judgment of the High Court. The respondent contended, inter alia, that there was no legislative provision providing for the appellant to appeal directly to the Constitutional Court and that the appellant was not a respondent for the purpose of Rule 19 of the Constitutional Court Rules. The respondent further supported the High Court's finding that the words 'liable to surrender' were to be given a broad H meaning.

Held, that whether the extradition magistrate or the Minister had the power to consider if and the extent to which the respondent's constitutional rights would be violated if he were extradited was a matter concerned with the enforcement of the respondent's constitutional fair trial right. So, too, was the question whether an extradition magistrate should discharge a person I sought and preclude the Executive from making a decision to extradite if there were some danger that the fair trial rights of that person would be violated upon extradition. (Paragraph [17] at 13F - H.)

Held, further, that the extradition of a South African citizen raised a constitutional matter because the citizen would be formally removed from the country to stand trial or serve a period of imprisonment which would have J

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an impact on the constitutional rights of the person sought to be extradited. All people who were unlawfully A extradited to serve a sentence of imprisonment abroad would have their constitutional rights infringed. (Paragraph...