President of the Republic of South Africa and Others v Quagliani, and Two Similar Cases

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, Ngcobo J, O'Regan J, Sachs J, Van Der Westhuizen J and Yacoob J
• Judgment Date: 21 January 2009
• Docket Number: CCT 24/08 and CCT 52/08
• Hearing Date: 26 August 2009
• Counsel: H Epstein SC (with MD Mohlamonyane) for the applicants. D Melunsky SC (with M du Plessis) for Quagliani. P Hodes SC (with A Katz) for Van Rooyen and Brown. H Epstein SC (with A Katz) for the applicant. PFF de Jager SC (with MD Mohlamonyane) for the respondents. RT Williams SC (with K Pillay) for the intervening parties.
• Court: Constitutional Court

Sachs J: F

Introduction

[1] Extradition 'is the surrender by one State, at the request of another, of a person within its jurisdiction who is accused or has been convicted of a crime committed within the jurisdiction of the other State'. [1] G It involves three elements: acts of sovereignty on the part of two States; a request by one State to another State for the delivery to it of an alleged criminal; and the delivery of the person requested for the purposes of trial and sentencing in the territory of the requesting State. [2] Extradition law thus straddles the divide between State sovereignty and comity between States and functions at the intersection of domestic law and H international law.

[2] It is within this context that the applications before this court raise questions about the prerequisites under our Constitution for making

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A extradition treaties binding on South Africa in international law, and for rendering their provisions enforceable in our domestic law. More specifically, the applications concern the validity and enforceability of the Extradition Agreement (the Agreement) between the United States of America (the United States) and the Republic of South Africa (South B Africa).

[3] Two of the three applications were brought in the High Court by persons facing extradition from South Africa to the United States. The third was brought by a person whom South Africa is seeking to extradite from the United States. For convenience I will refer to all the persons C facing extradition as the applicants, and to the respondents in the High Court, namely, the President of the Republic of South Africa (the President), the Minister for Justice and Constitutional Development (the Minister), the Director of Public Prosecutions and the Director-General of the Department of Justice and Constitutional Development, as the government. All the applicants contended that the Agreement between D South Africa and the United States had not been validly entered into, [3] or alternatively, that if the Agreement was indeed valid at the international level, it had not been properly enacted into our law.

[4] The first two applications, by Mr Quagliani and by Mr Van Rooyen and Ms Brown, a married couple, respectively, were heard together by E agreement in the Pretoria High Court. [4] They succeeded on the alternative ground mentioned above, namely, that the Agreement was not

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enforceable under South African domestic law because it was not A self-executing and had not been enacted into legislation. The High Court made a declaration that the Agreement had not been enacted into the domestic law of South Africa [5] and that it was accordingly not in force. [6] I will refer to the decision relating to both these applications as the Quagliani decision. The government has applied to this court for B leave to appeal against this decision.

[5] The High Court did not give a ruling on two other contentions that had been raised. [7] The first was that the Agreement had not been properly entered into by the President, and although the High Court inclined strongly to the view that the President had acted properly C through the national executive, it did not express a final conclusion on the matter. The second was that the resolutions approving the Agreement had not been validly adopted by the National Assembly and the National Council of Provinces (NCOP). [8] This argument was not dealt with in the judgment, which simply referred in passing to the existence of affidavits filed on behalf of these two bodies. D

[6] The third application concerned a South African citizen, Mr Goodwin, who, after allegedly absconding to the United States, was provisionally arrested there at the request of the South African government. [9] E

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A He sought his release in the United States on the ground that the Agreement was not valid in South African law, but the Californian court [10] dismissed his application, finding that since the challenge was based on the South African Constitution, it should properly be dealt with by a South African court. An application was then made on his behalf in B the Pretoria High Court, which raised the same three arguments against the enforceability of the Agreement that had previously been advanced by the other applicants in the High Court. Ebersohn AJ hearing the matter held that the earlier decision in the same High Court had clearly been wrong, and rejected the argument based on the alleged failure to incorporate the Agreement into South African domestic law. He also C dismissed the challenge based on the alleged invalidity of the Agreement and did not make a finding on the manner in which the resolutions had been adopted in Parliament. [11] Mr Goodwin now seeks leave to appeal against this decision, which I will refer to as the Goodwin decision.

D [7] The applications for leave to appeal against the Quagliani decision and against the Goodwin decision were set down for hearing together in this court. The Speaker of the National Assembly and the Chairperson of the NCOP were granted leave to intervene in respect of the issue of whether the approval of the resolution in the NCOP was validly given.

Application for leave to appeal directly to this court E

[8] Leave to appeal will be granted if a constitutional issue is raised and if it is in the interests of justice to do so. These applications for leave to appeal call upon this court to analyse the power given by the Constitution to the national executive to negotiate and sign treaties, as well as the constitutional provisions regulating the manner in which treaties will F come to have force of law domestically. These are constitutional matters.

[9] The interests of justice also favour final determination of the issues raised. The existence of conflicting judgments in the Pretoria High Court leaves the law in an unsatisfactory state. [12] For the one to be right, the other must be wrong: at least one of the applications for leave to G appeal must have prospects of success. Furthermore, as the government emphasised, it is not only the status of the applicants that is at stake. There are many other extradition agreements that have been adopted in the same manner as the one with the United States, [13] and problems

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regarding their enforceability could affect South Africa's relations with A other countries involved.

[10] A more difficult question is whether the interests of justice call for a direct appeal to this court. At the hearing, all the parties supported direct appeal to this court. The government pointed out that there had been considerable delay in finalising the two matters in the High Court, B the first of which dated back to 2004; the matters were of high public importance and, if they were not resolved with a degree of urgency, the ends of justice and good government would be prejudiced; there was a pressing need for a definite and final decision on controversial questions on extradition which had sprung up throughout the country; and South C Africa's international obligations were involved. The government added that, in dealing with these matters, this court would have the benefit of two judgments of the High Court.

[11] In my view, the interests of justice favour the matters being determined by this court now. They raise important questions of a purely D constitutional nature, the resolution of which is urgently needed to facilitate extradition proceedings. All the issues were fully argued before us. Leave to appeal should accordingly be granted.

Issues before this court

[12] The parties were directed by the Chief Justice to present argument E on whether -

(a)

the delegation by the President of his powers contained in s 2 of the Extradition Act (the Act) [14] was lawful;

(b)

the Agreement was validly approved in terms of s 231(2) of the F Constitution; [15] and

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(c)

A the Agreement had been incorporated into South African law in terms of s 231(4) of the Constitution. [16]

During argument the following three issues crystallised:

(a)

Was the Agreement with the United States validly negotiated and entered into (the 'validity of the Agreement issue')?

(b)

B Was the Agreement validly approved in the NCOP (the 'mandates issue')?

(c)

Were the provisions of the Agreement enforceable in our law (the 'enforceability issue')?

I shall deal with each in turn.

The validity of the Agreement issue C

[13] The applicants submitted that the Agreement with the United States had not been validly entered into because the President had delegated his own responsibilities in this regard to members of his D Cabinet.

[14] The uncontested facts follow. Preparatory negotiations between representatives of South Africa and the United States began in May 1998. Further discussions held in April 1999 led to two agreements being finalised, the Agreement and the Mutual Legal Assistance in Criminal Matters Treaty. At a later stage, a memorandum was sent to E the President from the Minister, expressing his intention to 'submit a Presidential Minute in which [he] would seek approval from [the President] to sign the Treaties on behalf of the Government of the Republic of South Africa'. Drafts of the agreements were submitted to the State law advisers to determine if the contents were in accordance with South African law and international law. Compliance was reported.

F [15] The Minister then informed the President by memorandum that he would be visiting the United States in September 1999, during which time he would meet the Attorney-General of the United States, and stated that 'it would be appropriate if the treaties could be signed' during this meeting. On 10 September 1999 the President signed Presidential G Minute No 428, stating:

In terms of s 231 of the...