S v Robinson

• Jurisdiction: South Africa
• Judge: Thring J and Dlodlo AJ
• Judgment Date: 07 April 2004
• Citation: 2004 (2) SACR 498 (C)
• Docket Number: A1060/02
• Hearing Date: 05 March 2004
• Counsel: H F van Zyl SC (with E van der Horst) for the appellant. Anton Katz (with D Vogel), instructed by the Director of Public Prosecutions, for the respondent.
• Court: Cape Provincial Division

Thring J:

On 28 June 1996, in the General Division of the Ontario Court of Justice, Province of Ontario, Canada (to which I shall refer as 'the Canadian Court') the appellant was convicted as charged on an indictment of having sexually D assaulted a young girl, then aged 14 years, in the town of Newmarket, Ontario, during the period from 1 August 1994 to 12 February 1995 in contravention of s 271 of the Canadian Criminal Code. Judgment was handed down on a Friday. The trial had commenced on the previous Monday, 24 June 1996, after a preliminary enquiry had been held into the charge before a different Judge on 1 December 1995. The E appellant was present during the whole of these proceedings, and was represented thereat by a senior member of the Canadian Bar. The appellant was on bail of 1 000 Canadian dollars. However, during the weekend immediately following his conviction he absconded from Canada and came to South Africa where, it would seem, he has been ever since. F On 13 December 1996 he was sentenced by the Canadian Court to three years' imprisonment. The sentence was imposed on him in absentia and apparently without him being represented. The Canadian authorities now seek his extradition so that he can serve his sentence.

None of what I have said so far is in dispute. In fact, in an G affidavit jurat 24 June 2002, which was placed before the magistrate on behalf of the appellant as exh F2 in support of an application for his discharge from further extradition proceedings, he says:

'As I understand and as appears from the extradition request by the Canadian Government, my surrender is being sought on the basis of a conviction by the Ontario Court (General Division) pronounced at H Newmarket on 28 June 1996, further on the basis of a sentence pronounced by the same court on 13 December 1996. I was present at the conviction, but was sentenced in absentia. The reasons for judgment and sentence are part of the documents, on which the State relies for my extradition. In addition, the record of the preliminary inquiry has been made available by Canada to me through the good offices of the SA authorities.' I

The history of the extradition proceedings to date may be stated briefly as follows:

(1)

In a diplomatic note dated 27 November 2000, addressed to the Department of Foreign Affairs of the Republic of South Africa, the Canadian High Commission requested the appellant's extradition J

Thring J

to Canada, enclosing certain documentation in support of the request. A

(2)

On 4 April 2001, on the recommendation of the Minister for Justice and Constitutional Development, the President signed a minute in which, in terms of s 3(2) of the Extradition Act 67 of 1962 (to which I shall refer as 'the Act') he consented to the appellant being surrendered to Canada; s 3(2) of the Act applies to '(a)ny person B accused or convicted of an extraditable offence committed within the jurisdiction of a foreign State which is not a party to an extradition agreement. . .'; it is common cause that Canada is a 'foreign State' as defined in the Act and that, although an extradition treaty between Canada and the Republic of South Africa had been duly ratified C by the Parliament of the Republic of South Africa on the previous day, 3 April 2001, it came into operation only on 4 May 2001, when the government of Canada completed the procedures required by law to bring it into force; I shall refer to this as 'the treaty'. D

(3)

On 18 January 2002 the appellant was arrested under a warrant which had been issued by the magistrate for the district of the Cape on 14 January 2002 in terms of s 5(1)(b) of the Act; he was brought before the magistrate of Wynberg on the same day in terms of s 9(1) of the Act; he was then released on bail of R100 000, which was subsequently reduced to R10 000. E

(4)

An enquiry was then held by the magistrate in terms of ss 9 and 10 of the Act as to whether the appellant was liable to be surrendered to the Canadian authorities; the enquiry commenced on 25 June 2002; on 24 July 2002 the magistrate gave judgment; in terms of s 10(1) she found that the appellant was liable to be F surrendered to Canada; she then extended his bail until the outcome of the decision of the Minister of Justice in terms of s 11 of the Act; she ordered the appellant to surrender himself on receipt of a written order from the Minister's office in order that effect may be given to any decision or order which might be made by the Minister; throughout these proceedings the appellant was represented by counsel and attorneys. G

(5)

Against this order the appellant comes on appeal to this Court in terms of s 13(1) of the Act.

(6)

When this appeal was heard before us on 5 March 2004 the appellant's notice of appeal was amended to include the following new H ground of appeal:

'The magistrate misdirected herself in failing to find that it would infringe the appellant's constitutional rights in terms of s 35(3) of the Constitution if he were to be found liable to be surrendered to undergo a term of imprisonment imposed upon him by a foreign court in his absence.' I

The first attack made on the magistrate's decision is against her finding to the effect that the proceedings before her were governed purely by the provisions of the Act, and not by the terms of the treaty, read with the Act. This finding was contended to be of particular relevance to the question of the authentication of the documents which were submitted J

Thring J

by the Canadian authorities in support of their request for the appellant's A extradition. The issue is also peripherally relevant in another context, to which I shall presently refer.

The reasoning underlying this finding of the magistrate is far from clear. She says:

'It is quite clear from the documentation before me that the B Minister and the President had signed this minute of 4 April 2001. That is more than, more or less a month prior to this treaty coming into operation. It is further the request from the defence, more or less, that the Court should in fact ignore the signature of the President on 4 April 2001, because there is now new law. The court agrees with the defence that the treaty is in fact law, but the court C disagrees that the treaty, that the law was applicable on 4 April 2001, prior to the treaty coming into operation. Therefore the provisions of the treaty will not, this court will not follow the provisions of the treaty for this application or request but that only of, and regard this request as if prior to the treaty coming into operation.' (sic)

Be that as it may, however, it does seem to be clear that she held that the treaty did not apply to the proceedings before her. In my judgment, she erred in so doing. Nor did Mr Katz who, with D Mr Vogel, appears for the respondent, contend otherwise. There is clear authority in the erstwhile Appellate Division of this Court to the effect that where, as is the case here, an extradition agreement is in force at the time when an enquiry is commenced under ss 9 and 10 of the Act, the provisions of such agreement apply, at least in relation to the authentication and proof of the depositions, E statements and affirmations handed in: See S v Eliasov 1967 (4) SA 583 (A) at 593F - 594B; see, also, Curtis v Johannesburg Municipality 1906 TS 308 at 312. In the instant case the treaty had already been in force for some 8 months when the appellant was arrested on the 18 January 2002, whereas in Eliasov's case supra the agreement there F concerned came into operation only approximately two months after the appellant in that case had been arrested, and the enquiry commenced approximately two weeks after the agreement had come into force. A fortiori the treaty applies in the present case.

The magistrate's order was attacked on appeal on several grounds. Firstly, it was contended on the appellant's behalf by Mr Van G Zyl, who appears for him at this stage together with Mrs Van der Horst, that the foreign documents which were produced before the magistrate in support of the application for the appellant's extradition had not been properly authenticated, either in terms of s 9(3)(a) of the Act or of the provisions of the treaty, and were consequently inadmissible. Secondly, it was submitted in the H appellant's heads of argument that the conduct of which he has been convicted by the Canadian Court does not constitute an extraditable offence as defined either in s 1 of the Act or in article 2 of the treaty. Mr Van Zyl did not argue this point before us. In the view which I take of this matter, it is not necessary to consider either of these questions; in favour of the respondent I shall I assume, without deciding, both that the documentation concerned was properly authenticated and placed before the court and...