Director of Public Prosecutions, Witwatersrand v Paz and Another

• Jurisdiction: South Africa
• Judge: Wunsh J, Meyer AJ
• Judgment Date: 17 September 1999
• Counsel: N Tuchten SC and C Moreno for the appellant. M Hodes SC and L Hodes for the first respondent.
• Citation: 2000 (1) SACR 467 (W)
• Court: Witwatersrand Local Division

Wunsh J:

Introduction, history, statutory provisions and Rule of Court C

This is a combined appeal against and an application to review a decision by a magistrate sitting at Randburg, who is the second respondent, to terminate an enquiry held in terms of s 9(1) of the Extradition Act 67 of 1962. For the sake of simplicity I shall sometimes refer to the proceedings as an appeal and to the appellant/applicant as 'the appellant'. D

There is also an application to rectify the record in the appeal by including substantial documentary exhibits which were handed in at the hearings in the magistrate's court. It was served on the first respondent on 30 June, not opposed and was granted. E

The magistrate who presided over the enquiry was Mr L A H Marais. Since he made the ruling which is the subject matter of this appeal, he has resigned as a magistrate and practises as an advocate. A copy of the notice of appeal and a copy of the notice of the application for review were served on 'the Randburg Court' as the second respondent and a further copy of each was served on Marais. He chose to deliver a notice of his intention to oppose the application and an answering affidavit, the prayer of which is: F

'Wherefore I humbly pray that the allegation that I did not have regard to the documentary exhibits in coming to the conclusion that I did, is totally unfounded.'

He briefed counsel to appear at the hearing to deal with the review part of it. His conduct was quite out of order. G The magistrate was cited in his official capacity. The Chief Magistrate of Randburg informed the State Attorney on 2 July, two days after the service of the notice of motion, that the second respondent 'does not wish to oppose the application and will abide by the decision of the Court'. I shall later on explain the allegation which Marais H disputed in his affidavit.

The enquiry was held with a view to the surrender of the first respondent, an Argentinian subject, to Argentina which had made three requests for his extradition in terms of s 4(1) of the Extradition Act for an offence of smuggling and related acts. The subject matter of the smuggling was stated to be arms and ammunition. The requests were based on an extradition agreement between the Argentine Republic and South Africa ('the I extradition agreement'). The extradition agreement arose from a treaty between the United Kingdom of Great Britain and Ireland and the Argentine Republic dated May 22, 1889, which was ratified by the Argentine Republic by article 3,043. The treaty operates J

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between the Argentine Republic and the Republic of South Africa by virtue of an exchange of notes between the A Ministry of Foreign Affairs and Worship of the Argentine Republic and the Embassy of the Republic of South Africa - one of the letters covering the requests for extradition in this case refers to 'Embassy of South Africa note No 1155-8/99 dated October 8, 1969 and the Note of the Foreign Office dated April 11, 1971'. B

Article II of the extradition agreement includes 23 categories of crimes or offences in terms of s 3 of the Extradition Act. Bearing in mind the allegations appearing in the documents which emanated from the Argentine Republic, the ones which could have given rise to an extradition order, according to information discussed in this appeal, are:

'13.

Perjury . . . C

16.

Fraud by a . . . public officer of any company, punishable with imprisonment for not less than one year . . .

17.

Obtaining . . . goods by false pretences . . .

18.

(c) Forgery.'

There were several hearings in two magistrates' courts in which preliminary objections were raised by the first D respondent's counsel and discussed, postponements were sought and applications were made for the first respondent's release on bail. Eventually on 14 August 1998 the matter came before the second respondent. At the first hearing before him on this date, the first respondent was represented by counsel and Adv Vlok, a senior E State Advocate, appeared for the State. No evidence was led at this hearing. It appears from the record of the hearing and a transcription of Marais' notes, that Adv Vlok was not properly prepared to deal with the matter on that occasion. He told the court that his colleague, Mr Chauke, who had been representing the State in the bail application was unavailable due to the death of his brother-in-law and Adv Vlok, on behalf of the State, sought a F postponement. Adv Vlok told the magistrate that there was 'lots of documentation' of which he had only 'certain' but not all the papers and which he had received only that morning. He said that he was not fully versed with the proceedings which had taken placed in the bail application and contended that the matter could not proceed on G that date.

The magistrate made notes of what Mr Vlok told him and they conclude with the following two paragraphs:

'The State lodges with the court's permission the proceedings in the bail application together with the tapes, also exhibits which were handed up in the bail application together with a copy of the treaty as well as a number of affidavits, orders and other papers H recovered from the Argentina authorities directly or via their Consulate. I ask that the papers be placed before the court as per file but I understand from my learned colleagues appearing on behalf of the accused that there are certain points in issue today. However, I shall leave it to them to address the court on.' I

Counsel for the first respondent then addressed the court. It appears from the record that the application for a postponement was resisted and certain submissions were made by counsel concerning the extradition agreement. After the first respondent's counsel had addressed the second respondent, Adv Vlok replied. In his reply he persisted in seeking a J

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postponement and made it clear that the issues raised on behalf of the first respondent should be determined at A a later hearing. The second respondent concluded the proceedings on that day by stating that he was not prepared to proceed because the bail application was still pending.

The matter came before the second respondent again on 20 August 1998. By then the bail proceedings before the magistrate, Mr Van der Westhuizen, had been concluded. Before the second respondent, the first B respondent was represented by junior counsel and the State again by Mr Chauke. The second respondent's note of what occurred at the commencement of the proceedings on that date reads as follows:

'This is an application by State to have accused extradited to Argentina. The request was received via correct authorities, ABDTGE (sic). Warrant is before the court. The State submits there is a treaty between SA and Argentina due to treaty between SA (UK) and C Argentina. The investigation in the bail application find that there is a treaty and accused can be extradited. The State therefore asks the court to make an order to extradite accused to Argentina to stand trial.'

It appears that counsel for the first respondent then informed the court that 'the defence would like to take a point D in limine'. Counsel is recorded as having said: 'It would not be necessary for the court to peruse the document.' This was obviously a reference to more than one document and junior counsel who appeared at the appeal and who had raised the point in limine readily accepted that that is what he may have said. E

A number of submissions were then made by counsel representing the first respondent. Although the notes by the second respondent are somewhat cryptic, it seems clear that three points were raised which can be summarised as follows:

1.

The attempt to extradite the first respondent because there had not been compliance with the provisions of F either s 3(1) or s 3(2) of the Extradition Act was invalid.

2.

The first respondent was not a person who had been accused of an offence but was sought for questioning.

3.

The extradition agreement does not provide for extradition for the offence of 'arms dealing'. G

Mr Chauke, on behalf of the State, responded to the arguments which had been raised in limine and, after he had concluded his address, junior counsel representing the first respondent made the following statement according to the record: 'I have a treaty before the court. I hand it in at (2) - this should read "art II" - of treaty re crimes is included, arms smuggling is not mentioned. This offence is not included in treaty, thus defence ask case to be H struck from roll.'

The second respondent remanded the matter in order to consider the point in limine and it was postponed until 24 August 1998.

On 21 August the first respondent again appeared before the second respondent, ie Mr Marais, who was sitting. I It appears from the record that on that date the State did not object to bail being granted to the first respondent and he was granted bail of R300 000 subject to certain conditions. The proceedings were again postponed until 24 August 1998; it appears that at the hearing on 21 August the second respondent J

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indicated that he would probably uphold the point in limine at the resumed hearing. A

On 24 August the second respondent made the following ruling: 'The court finds the point in limine raised by the defence is a valid one. Section 3(1) of Act 67 of 1962 allows for the extradition of an accused or convicted person of an offence included in the extradition agreement. The court finds person before court does not fall within the B ambit of s 3 of the said Act. Case struck off the roll.'

The proceedings before the second respondent thus terminated and the first respondent was released and his bail refunded.

On 14 September 1998 the Attorney - General lodged a notice of appeal in terms of s 310(1) of the Criminal C Procedure Act to which...