S v Patel

• Jurisdiction: South Africa
• Judge: Coppin J and Vilakazi AJ
• Judgment Date: 18 August 2015
• Citation: 2016 (2) SACR 141 (GJ)
• Docket Number: A 101/2014
• Hearing Date: 30 April 2015
• Counsel: MR Hellens SC for the appellant. D Barnard for the state.
• Court: Gauteng Local Division, Johannesburg

Coppin J (Vilakazi AJ concurring):

[1] The United States of America (the USA) has requested the extradition of the appellant, its citizen who is presently in the Republic of South Africa (the RSA), with the expressed intent to prosecute him for offences E he is alleged to have committed in that country.

[2] Pursuant to that extradition request, the appellant was arrested and he appeared in the magistrates' court in Randburg in terms of the provisions of the Extradition Act 67 of 1962 (the Act). Having found, in F effect, that the appellant is liable to be surrendered to the USA, the magistrate, on 15 February 2013, issued a committal order in terms of s 10(1) [1] of the Act, committing the appellant to prison to await the decision of the Minister of Justice and Constitutional Development (the minister) regarding his surrender to the USA. G

[3] This is an appeal against the committal order with the leave of the court a quo. The appellant, who is out on bail pending the outcome of this appeal, was legally represented throughout the proceedings in the magistrates' court. H

Coppin J (Vilakazi AJ concurring)

A [4] Briefly, the appellant alleges on appeal that the magistrate erred in several respects, more particularly:

[4.1]

First, in finding that the offences in respect of which the USA has requested his extradition are extraditable offences. In short, the argument raised by the appellant, which will be dealt with in B detail later, is that the requirement of double criminality has not been satisfied. According to this argument, it has not been established that the alleged conduct of the appellant, which constituted offences in the USA, also constituted offences in this country at the time of their commission in the USA.

[4.2]

C Secondly, that the certificate furnished by the prosecuting authority in the USA, in support of the appellant's extradition, does not comply with the prescriptive requirements of s 10(2) [2] of the Act.

[5] In response thereto, counsel for the state contended that the D double-criminality rule had been satisfied and, even though both the extradition treaty between the USA (the requesting state) and the RSA (the requested state) and the Act appeared silent on whether double criminality should be determined with reference to the time of the alleged commission of the offences, or the time of the extradition request, the requirement was met if the alleged conduct constituted an offence in both the requesting E and requested states, at least at the time of the extradition request.

[6] It was the state's argument that the certificate issued by the prosecuting authority in the USA met the statutory requirements and that the magistrate correctly accepted it as conclusive proof of the fact that there F was sufficient evidence to warrant the prosecution of the appellant in the USA.

Background

[7] On 7 March 2011 the USA Embassy in Pretoria addressed a diplomatic G note to the relevant authorities in the RSA, requesting the appellant's extradition to the USA for offences mentioned in the warrant of arrest issued on 26 March 2011 by the Northern District Court of California in the USA. Attached to the note are inter alia the following documents, namely:

(i)

A certificate issued and signed on 17 June 2011 by Mr David Warner, H in his ex officio capacity as the Associate Director of the Office of International Affairs, Criminal Division, and the Department of Justice of the USA.

Coppin J (Vilakazi AJ concurring)

(ii)

A certificate issued and signed on 16 June 2011 by Mr Peter B Axelrod A (Mr Axelrod), in his capacity as assistant in the United States' Attorneys' Office, in the Northern District of California. This is a certificate issued purportedly in compliance with the provisions of s 10(2) of the Act. It is further stated in this certificate that the requesting state requests the extradition of the appellant B from the requested state in order to prosecute him for financial crimes associated with banking regulations, eg structuring of bank deposits in violation of the law. The certificate indicates that Mr Axelrod is a duly appointed Assistant United States Attorney in the Northern District of California who is in charge of the C prosecution of the appellant. Mr Axelrod certifies that the prosecution of the appellant is justified in the light of evidence contained in the extradition documents and under the laws of the USA.

(iii)

An affidavit deposed to by Mr Axelrod on 16 June 2011 at San Francisco, California. In essence his affidavit contains a comprehensive D summary of the facts and procedural history of the case.

(iv)

An indictment, dated 18 August 2010.

(v)

A tolling agreement between the appellant and the requesting state entered into on 2 January 2011 and countersigned by Mr Charles J Smith, the appellant's attorney.

(vi)

A copy of the United States Code, title [. . .] s 2; title 22, s 4221; E title 31, ss 5313 and 5324; the relevant code of Federal Regulations and the USA's Federal Rules of Criminal Procedure.

(vii)

An affidavit deposed to by Mr Scott Lee on 9 July 2011, in his capacity as the special agent of the USA's Immigration and Customs Enforcement Department. F

[8] The request for the extradition of the appellant was made pursuant to an extradition treaty between the RSA and the USA (the treaty). [3]

[9] On 28 April 2011 the appellant was arrested and he appeared in the magistrates' court.

[10] On 21 July 2011 the minister issued a notice in terms of s 5(1)(a) G of the Act. In essence it is a confirmation of the receipt of a request for the surrender of the appellant to the requesting state.

[11] On 15 February 2013 the magistrate issued a committal order in terms of the Act. It was the magistrate's finding that the alleged offences, H for which the appellant's extradition is being sought, are extraditable offences and the magistrate took inter alia the following factors into account:

[11.1]

That the appellant is alleged to have committed banking- related structuring offences in the USA, which offences are punishable by a sentence of imprisonment of more than one year. The equivalent charges in the RSA would have been charges of contravening s 28 and s 29 of the Financial Intelligence Centre Act 38 of 2001 (FICA);

Coppin J (Vilakazi AJ concurring)

[11.2]

A the structuring offences were allegedly committed (as per the indictment issued by the prosecuting authority of the requesting state) between 2005 and October 2007; and

[11.3]

the FICA law of the RSA came into operation in 2010.

[12] The magistrate concluded that the appellant's defence that the B offences were not extraditable, because the requirement of double criminality was not met, could not hold. The magistrate was of the view that, even if the Act were silent on whether the offence in respect of which extradition is sought had to be a crime in the requested state, either at the time the alleged offence was committed in the requesting C state, or at the time of the extradition request, the relevant date was the date of the extradition request.

[13] The magistrate relied on s 3(1) of the Act [4] and interpreted it to cover offences committed prior to the operation of the Act, or offences D committed prior to the conclusion of the treaty.

[14] It was the finding of the magistrate that the conduct of the appellant was adequately described in the indictment and the magistrate relied on s 10(1) of the Act which provides inter alia that, if there is sufficient evidence to warrant the prosecution, the magistrate shall issue an order committing the person in question to prison. The magistrate concluded E that the certificate furnished by Mr Axelrod was not fatally defective for not using the exact wording of s 10(2) and accepted it as conclusive proof that there was sufficient evidence to warrant the appellant's prosecution in the USA.

The issues on appeal F

[15] As stated at the outset, there are, essentially, two core issues for resolution. The core issues are whether:

(i)

The offences in respect of which the appellant is sought are 'extraditable offences'; and

(ii)

the certificate furnished by the prosecuting authority of the USA in G support of the appellant's extradition, which stated that his prosecution is justified on the basis of evidence contained in the extradition documents and under the laws of the requesting state, complies with the requirements of the Act, in particular, those in s 10(2).

H I shall deal with each in turn.

Coppin J (Vilakazi AJ concurring)

Extradition and 'double criminality' A

[16] The treaty, which was ratified on 9 November 2000 and published in the Government Gazette, [5] does not deal expressly with the time issue.

[17] In its preamble the treaty expresses the need for more effective cooperation between the two states in the fight against crime, and for B that purpose to conclude a new treaty for the extradition of offenders. Article 2(1) then provides that an offence shall be an extraditable offence if it is punishable under the laws in both states by deprivation of liberty for a period of at least one year, or by means of a more severe penalty. Article 2(3) of the treaty provides that an offence is extraditable, irrespective of whether the laws of the requesting and requested states C place the offence within the same category of offences, or describe the offences by the same terminology.

[18] The Act also does not deal expressly with timing. In s 1 of the Act an 'extraditable offence' is defined as:

'(A)ny offence which in terms of the law of the Republic of South Africa D and the foreign State concerned is punishable with a sentence of imprisonment or other form of deprivation of liberty for a period of six months or more, but excluding any offence under military law which...