Robinson v Minister of Justice and Constitutional Development and Another
Jurisdiction | South Africa |
Citation | 2006 (6) SA 214 (C) |
Robinson v Minister of Justice and Constitutional Development and Another
2006 (6) SA 214 (C)
2006 (6) SA p214
Citation |
2006 (6) SA 214 (C) |
Case No |
12818/2005 |
Court |
Cape Provincial Division |
Judge |
Davis J and Moosa J |
Heard |
February 10, 2006 |
Judgment |
April 26, 2006 |
Counsel |
J C Heunis SC (with M F Osborne) for the applicant. |
Flynote : Sleutelwoorde B
Extradition — Order for surrender of fugitive to foreign authorities in terms of s 11(a) of Extradition Act 67 of 1962 — Review of — Grounds for — Failure to apply mind — Inadequacy of material considered — Test for adequacy of consideration C of material — In assessing adequacy of material considered, Court adopting realistic and pragmatic approach — Minister required to adopt reasonable procedures and methods and not to act as judicial officer — Minister not sitting as Court of appeal and therefore not required to read record of proceedings in foreign jurisdiction — Minister required merely to properly apprise herself of applicant's representations — Adequate D that such representations presented to her in form of accurate summary — Applicant's attorneys having made comprehensive written representations on behalf of applicant — On facts, such material sufficient to enable Minister to arrive at reasonable decision — Accordingly, application dismissed. E
Extradition — Order for surrender of fugitive to foreign authorities, in terms of s 11(a) of Extradition Act 67 of 1962 — Review of — Grounds for — Failure to apply mind — Failure to grant applicant a hearing — Unfairness of — Applicant's case comprehensively set out in written representation by his attorney — In circumstances, Minister not acting unfairly in denying applicant opportunity to make oral representations — Accordingly, application F dismissed.
Extradition — Order for surrender of fugitive to foreign authorities in terms of s 11(a) of Extradition Act 67 of 1962 — Review of — Grounds for — Unreasonableness of decision — Applicant alleging he was convicted in foreign jurisdiction on less than proof beyond reasonable doubt — Minister obliged, in terms of G s 11(b)(iii) of Act, to consider legal process in foreign jurisdiction in terms of which applicant convicted and sentenced — Sufficient that Minister took applicant's contention into account — Minister not required to consider merits of conviction — Application dismissed.
Extradition — Order for surrender of fugitive to foreign authorities in terms of s 11(a) of Extradition Act 67 of H 1962 — Review of — Grounds for — Unreasonableness of decision — Applicant sentenced in absentia following his having absconded to South Africa — Minister obliged, in terms of s 11(b)(iii) of Act, to consider legal process in foreign jurisdiction in terms of which applicant convicted and sentenced — Mere fact that applicant having been I sentenced in absentia insufficient to compel Minister to refuse to surrender him to foreign authorities — Application dismissed.
Headnote : Kopnota
The applicant applied in a Provincial Division for the review and setting aside of an order made by the Minister (the first respondent), in terms of the provisions of s 11(a) of the Extradition Act 67 of 1962, that he be J
2006 (6) SA p215
surrendered to the Canadian authorities in order to serve a sentence of imprisonment to which he A had been sentenced in Canada, in absentia, after he had absconded to South Africa. The applicant had, after a trial in which he had been present and had been represented by a senior member of the Bar of the requesting State, been convicted of sexually assaulting a 14-year-old girl. After conviction but before sentencing the applicant had absconded to South Africa. He brought his application on the grounds, inter alia, that: (1) The Minister failed to apply B her mind in making her decision in that (a) her decision was made on inadequate, incomplete and inaccurate information, particularly that contained in a ministerial memorandum written by departmental officials; (b) she had not afforded him an opportunity to make oral representations; and (2) her decision was unreasonable in that (i) he had been convicted on less than proof beyond a reasonable C doubt; (ii) he had been sentenced in absentia; and (iii) he suffered ill health and claustrophobia which would make imprisonment an extraordinarily severe punishment. In answer to (a), the respondents contended that, prior to making her decision, the Minister had, at the very least, read the ministerial memorandum, a letter from the applicant's attorneys wherein they made comprehensive representations on his behalf and an affidavit deposed to by an D academic, on behalf of the applicant, regarding the merits of his conviction in Canada, and that a consideration of that material was sufficient for her to have made her decision.
Held, as to (1), that in considering the adequacy of the material available to the Minister in arriving at her decision, the Court had to adopt a realistic and pragmatic approach. (At 225E.) E
Held, further, as to (1)(a), that the respondent did not perform the role of an appeal court that was required to trawl through an entire record in order to test the approach which had been adopted by the trial court. The first respondent had to apprise herself of the representations that were made by applicant, ensuring that the representations considered were not mediated nor censured by way of departmental editing. Furthermore, the first respondent had to ensure that the documentation F considered by her was sufficient to grasp the essence of applicant's case and, if necessary, the nuances of his representations. To demand more, namely that a decision- maker such as first respondent was obliged to read an entire record of criminal proceedings, a CD-ROM containing a small library of judgments from the foreign State and all the details contained in the psychiatric reports, when the summary G provided an accurate encapsulation of the recommendations of the psychiatric experts, was to place too onerous a demand on the decision-maker. (At 225E - H.)
Held, further, that the carefully constructed, comprehensive representations by the applicant's attorneys were sufficient for the first respondent to have understood the applicant's case. By reading that material and assessing it, she would have been able to H arrive at a reasonable decision. (At 226C.)
Held, further, as to (1)(b), that since the applicant's case had clearly been set out to the first respondent in his own documentation, the latter had not acted unfairly in not granting him an opportunity to make oral representations before she made her decision. (At 227D - E.)
Held, further, as to (2), that s 11(b)(iii) of the Act imposed upon the Minister the obligation to satisfy herself I that it was in the interests of justice that a person in the position of the applicant should be surrendered to the requesting State. To that extent the doctrine of non-enquiry could not be employed as a defence by a decision-maker such as the first respondent not to examine the legal process in terms of which the applicant had been convicted and sentenced. (At 229I - J.) J
2006 (6) SA p216
Held, further, as to (2)(i), that in arriving at her decision, the Minister had taken into consideration that it was the A applicant's contention that his guilt in the requesting State had never been proved beyond a reasonable doubt. She had not been required to consider the merits of the conviction and thus, effectively, to sit as an appeal court. (At 231C - E, paraphrased.)
Held, further, as to (2)(ii), that having regard to the fact that the applicant had absconded from the requesting State prior to sentencing, the mere fact that the applicant had been sentenced B in absentia was insufficient to compel the Minister to refuse to surrender the applicant. (At 233B - D, paraphrased.)
Held, further, as to (2)(iii), that the Minister had, in the formulation of her decision, taken into account the humanitarian considerations raised by the applicant, namely his medical condition and particularly his mental health. (At 233E - F.) C
Held, further, that none of the central considerations on which the applicant relied (miscarriage of justice, sentencing in absentia, and his precarious health) was such that a reasonable decision-maker would not have considered it to be in the interests of justice to order the surrender of the applicant to the Canadian authorities. (At 234E - H.) Application dismissed. D
Case Information
Annotations
Reported cases
Southern African cases
Director of Public Prosecutions, Cape of Good Hope v Robinson 2005 (4) SA 1 (CC) (2005 (1) SACR 1; 2005 (2) BCLR 103): dictum in para [52] applied E
Earth Life Africa (Cape Town) v Director-General: Department of Environmental Affairs and Tourism and Another 2005 (3) SA 156 (C): dictum in para [76] applied
Hayes and Another v Minister of Finance and Development Planning, Western Cape, and Others 2003 (4) SA 598 (C): distinguished F
Hayes and Another v Minister of Housing, Planning and Administration, Western Cape, and Others 1999 (4) SA 1229 (C): referred to
Minister of Health and Another NO v New Clicks SA (Pty) Ltd and Others (Treatment Action Campaign and Another as Amici Curiae) 2006 (2) SA 311 (CC) (2006 (1) BCLR 1): dictum in para [152] applied
Mohamed and Another v President of the G Republic of South Africa and Others (Society for the Abolition of the Death Penalty in South Africa and Another Intervening) 2001 (3) SA 893 (CC) (2001 (2) SACR 66; 2001 (7) BCLR 685): dicta in paras [37] and [47] applied
S v Robinson 2004 (2) SACR 498 (C): referred to
South African Jewish Board of Deputies v Sutherland NO and Others 2004 (4) SA 368 (W): distinguished H
Thatcher v Minister of Justice...
To continue reading
Request your trial-
Rodpaul Construction CC v Ethekwini Municipality
...Affairs and Others 2004 (4) SA 490 (CC) para 54. See also Robinson v Minister of Justice and Constitutional Development and Another 2006 (6) SA 214 (C) at [64] J B Leadbitter para 65 [65] 'Government Procurement and Judicial Review' Carswell (1988), at p. 99 [66] Allpay para 22 and 23. [67]......
-
S v De Vries and Others
...(SCA) ([2008] 1 All SA 197): dictum in para [94] applied Robinson v Minister of Justice and Constitutional Development and Another J 2006 (6) SA 214 (C) (2006 (2) SACR 503): dictum at 225H - J applied 2008 (4) SA p443 S v Alexander and Others (1) 1965 (2) SA 796 (A): dictum at 809C - D A ap......
-
S v Chao and Others
...Id in para 25. [18] Id in para 27. [19] Id in para 27. [20] Robinson v Minister of Justice and Constitutional Development and Another 2006 (6) SA 214 (C) (2006 (2) SACR 503) at 225 per Davis J. See also S v De Vries and Others, n15 above, in para [21] Id. [22] Id in para 28. [23] In terms o......
-
Rodpaul Construction CC v Ethekwini Municipality
...Affairs and Others 2004 (4) SA 490 (CC) para 54. See also Robinson v Minister of Justice and Constitutional Development and Another 2006 (6) SA 214 (C) at [64] J B Leadbitter para 65 [65] 'Government Procurement and Judicial Review' Carswell (1988), at p. 99 [66] Allpay para 22 and 23. [67]......
-
S v De Vries and Others
...(SCA) ([2008] 1 All SA 197): dictum in para [94] applied Robinson v Minister of Justice and Constitutional Development and Another J 2006 (6) SA 214 (C) (2006 (2) SACR 503): dictum at 225H - J applied 2008 (4) SA p443 S v Alexander and Others (1) 1965 (2) SA 796 (A): dictum at 809C - D A ap......
-
S v Chao and Others
...Id in para 25. [18] Id in para 27. [19] Id in para 27. [20] Robinson v Minister of Justice and Constitutional Development and Another 2006 (6) SA 214 (C) (2006 (2) SACR 503) at 225 per Davis J. See also S v De Vries and Others, n15 above, in para [21] Id. [22] Id in para 28. [23] In terms o......