Minister of Justice and Another v Additional Magistrate, Cape Town

• Jurisdiction: South Africa
• Judgment Date: 11 April 2001
• Citation: 2001 (2) SACR 49 (C)

Minister of Justice and Another v Additional Magistrate, Cape Town
2001 (2) SACR 49 (C)

2001 (2) SACR p49

Citation	2001 (2) SACR 49 (C)
Court	Cape Provincial Division
Judge	Van Reenen J and H J Erasmus AJ
Heard	April 11, 2001
Judgment	April 11, 2001
Counsel	C Y Louw SC (with him R F van Rooyen) for the applicants.; S F Burger SC (with him F van Zyl SC and A Katz) for the second respondent.

Flynote : Sleutelwoorde

Extradition — Application for — Nature of enquiry before magistrate — Incorrect to view State as 'party' whose case 'closed' when no further witnesses available. F

Extradition — Application for — Procedure during enquiry in terms of ss 9 and 10 of Extradition Act 67 of 1962 — First and second parts of s 10(2) of the Act separate and distinct and could not co-exist — Generally, discharge under first part would amount to judgment on the merits of the proceedings and would ground a plea of res judicata — Discharge under second part not final of effect and proceedings could be taken afresh. G

Extradition — Application for — Procedure during enquiry in terms of ss 9 and 10 of Extradition Act 67 of 1962 — Postponement of enquiry — Magistrate required to exercise judicial discretion in deciding application for postponement.

Headnote : Kopnota

The applicant applied for an order reviewing various rulings made by the respondent during an extradition enquiry H held by the first respondent in September 2000 in terms of s 9 of the Extradition Act 67 of 1962 in which the extradition of the second respondent was sought to the Federal Republic of Germany. An order for the extradition of the second respondent had been made by a magistrate in terms of s 10(1) of the Act in February 1999. The second I respondent appealed against the extradition order and challenged the constitutionality of the Act. A review application succeeded on the basis that the interpreter used to interpret the proceedings into German had not been properly sworn in and the court ordered that the matter be remitted to the magistrate's court for a new enquiry to be held. At the resumed hearing the first respondent ruled that one of the witnesses J

2001 (2) SACR p50

called by the State could not testify regarding whether sufficient reasons existed for the extradition of the second A respondent to Germany on charges of fraud. The first respondent furthermore ruled that the deposition of a further witness was inadmissible despite formally complying with the provisions of s 9(3) and indicated that the evidence of an official in the office of the Fiscal Office in Hamburg involved in the investigation against the second respondent would not be relevant. The matter then stood down B in order for the prosecutor to take instructions from the applicant and when the matter resumed two days later the prosecutor applied for a postponement to reassess the State's position as regards the German prosecuting authority and for an opinion from a senior counsel. The application was refused and the prosecutor then applied for the matter to stand down, which application was also refused. The prosecutor then purported to withdraw the application for extradition as he was 'in no C position to continue'. The first respondent then regarded the State case as closed and ordered the discharge of the second respondent in terms of s 10(2) on the basis that the evidence did not warrant the issue of an order of committal and that the required evidence was not forthcoming within a reasonable time. The applicant thereupon launched the present proceedings. D

The decision that the evidence was inadmissible for want of relevancy was based on the acceptance by the first respondent that the contents of the second warrant of arrest delineated the ambit of the inquiry before the first respondent. The first warrant of arrest was set aside by the German court as it was held that the notion of the continuous crime did not apply to cases of fraud and a second warrant E was accordingly issued. The second respondent's legal representatives relied on the differences between the second warrant and the indictment for the exclusion of certain evidence despite the specific incorporation of the averments in respect of the relevant complainant's so as to render the indictment and the second warrant of arrest consistent. F

The Court held that the fundamental difference between an indictment and a warrant of arrest was recognised by the manner in which the two documents in question in the present proceedings were formulated: the indictment setting out in clear and unmistakeable language what the charges were in respect of which the second respondent would have to stand trial in Germany. The second respondent could not have been prejudiced in any way by the indictment, on the contrary it was to G his advantage. The first respondent had accordingly erred in holding that the evidence of the witness was inadmissible for want of relevance.

Held, further, that the finding by the first respondent that he regarded the State case as closed, was founded on a misconception by him of the nature of the proceedings: the State was not a party to the proceedings and there was no 'case' which could be H 'closed'.

Held, further, that the respondent had purported to discharge the second respondent under both the first and second parts of s 10(2) of the Act: the two parts were separate and distinct and could not co-exist. Generally a discharge under the first part would amount to a judgment on the merits of the proceedings and would ground a plea of res judicata. A discharge under the second I part was not final of effect and proceedings could be taken afresh.

Held, further, that the first respondent had failed to exercise a judicial discretion in refusing a postponement. In the circumstances the application had to succeed and the matter remitted to the magistrate's court. The Court recommended that the matter be heard by a different magistrate. J

2001 (2) SACR p51

Case Information

Application for the review of a decision refusing an application for the extradition of the second respondent and a decision A refusing an application to postpone the extradition enquiry.

C Y Louw SC (with him R F van Rooyen) for the applicants.

S F Burger SC (with him F van Zyl SC and A Katz) for the second respondent. B

Cur adv vult.

Postea (11 April).

Judgment

Van Reenen J and H J Erasmus AJ:

In this application the Minister of Justice (the first applicant) and the Director of Public Prosecutions: Cape of Good Hope (the second applicant) seek an order C reviewing various rulings made by the Additional Magistrate, Cape Town (the first respondent) during an extradition enquiry in terms of s 9 of the Extradition Act 67 of 1962 ('the Extradition Act') against J)rgen Harksen ('Harksen') held at Cape Town during the period 1 - 6 September 2000. D

That enquiry is a further event in a drawn-out saga consisting of approximately 36 legal proceedings instituted by Harksen and his wife Jeanette in order to delay or terminate extradition enquiries that had been instituted to procure the surrender of Harksen to the Federal Republic of Germany on charges of fraud. The history of that saga is set out in detail in Harksen v President of the Republic of South E Africa and Others 1998 (2) SA 1011 (C); (Harksen 1998 (2)) and S v Harksen; Harksen v President of the Republic of South Africa and Others; Harksen v Wagner NO and Another 2000 (1) SA 1185 (C); (Harksen 2000 (1)) and summarized by Professor NJ Botha 'Lessons from Harksen: a closer look at the F constitutionality of extradition in South African law' (2000) 33 CILSA 274. To avoid prolixity, that history is repeated herein only to the extent that parts thereof may be relevant for the purposes of this judgment.

The events that preceded the enquiry that forms the subject-matter of this application are set out hereunder. G

Mr Wagner, an additional magistrate, Cape Town, in an extradition enquiry made an order on 8 February 1999 in terms of s 10(1) of the Extradition Act that Harksen was liable to be surrendered to the Federal Republic of Germany (Germany), in respect of charges of fraud relating to three complainants, namely Hartmut Lowack ('Lowack'), Ziegfried Johannes Greve ('Greve') and Dietrich Ferdinand Liedelt H ('Liedelt').

Harksen lodged an appeal in terms of s 13 of the Extradition Act and in two accompanying applications challenged the constitutionality of s 3(2) of the said Act on the basis that the consent granted by President Mandela on 24 May 1995 for his surrender to Germany, constituted an international agreement in conflict and inconsistent with the requirements of the Constitution relating to international I agreements and also sought an order reviewing and setting aside the finding that he was liable to be surrendered to Germany on charges of fraud.

The application challenging the constitutionality of s 3(2) of the Extradition Act was unsuccessful but the review application succeeded J

2001 (2) SACR p52

Van Reenen J & H J Erasmus AJ

on the basis that the interpreter used to interpret the proceedings into German had not been properly sworn in (see Harksen 2000 A (1)). The court remitted the matter to the magistrate's court, Cape Town, ' . . . for a new enquiry to be conducted' by another magistrate.

An appeal to the Constitutional Court against the outcome of the application challenging the constitutionality of s 3(2) of the Extradition Act was unsuccessful (see Harksen v President of the B Republic of South Africa and Others 2000 (2) SA 825 (CC)).

The legal representatives of second applicant and Harksen on 22 March 2000 arranged for the new extradition enquiry to commence before the first respondent on Friday 1 September 2000. Prior to such C commencement, letters were exchanged between the...