Recent Case: Constitutional application

• Jurisdiction: South Africa
• Date: 24 May 2019
• Published date: 24 May 2019
• Author: Anashri Pillay
• Pages: 407-415

Recent Cases • Vonnisse

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407

Constitutional application

Anashri Pillay

University of Cape Town

Application

Administrative law - right to a hearing

In

Minister of Justice v Additional Magistrate, Cape Town

2001 (2) SACR 49

(C)

(Harksen

6), various rulings made by a magistrate in extradition

proceedings against Harksen were successfully reviewed and the extradition

proceedings were set aside. The Director of Public Prosecutions (DPP)

wished to begin the extradition process anew by applying for a warrant for

Harksen's arrest under s 5 of the Extradition Act 1962.

Harksen v Director of

Public Prosecutions, Western Cape

2002 (1) SACR 353 (C) was an application

by Harksen for two orders. He asked for an order interdicting the DPP from

applying for the warrant without first giving him an opportunity to make

representations to the magistrate and an order directing the magistrate to

grant him an opportunity to make representations before considering

whether to issue the arrest warrant (354h-5b). Thus, the issue before the

court was whether a hearing was required at this stage of the proceedings

(355

b-c).

Both sides accepted that the exercise of powers under s 5 of the

Extradition Act 1962 by the magistrate constituted 'administrative action' and

the court proceeded on this basis (at 355

c-d).

Hence there was no discussion

of why a magistrate acts in an administrative, and not judicial, capacity at this

stage of the proceedings. The common-law principle that procedural fairness

(2002) 15 SACJ 407

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