S v Tucker

• Jurisdiction: South Africa

S v Tucker
2019 (2) SACR 166 (WCC)

2019 (2) SACR p166

Citation	2019 (2) SACR 166 (WCC)
Case No	19434/17 and A 37/18
Court	Western Cape Division, Cape Town
Judge	Sher J and Samela J
Heard	March 28, 2019
Judgment	March 28, 2019
Counsel	J van der Berg for the appellant.; LJ Badenhorst for the state.

Flynote : Sleutelwoorde

Extradition B — Application for — Nature of magistrate's enquiry under Extradition Act 67 of 1962 — Request from non-associated state — Approach that magistrate relegated to mere scribe and record compiler and not able to rule on breaches of treaty or fundamental human rights, questioned.

Extradition C — Application for — Procedure during enquiry in terms of ss 9 and 10 of Extradition Act 67 of 1962 — Conducted in manner of preparatory examination — Process not requiring, however, that formal charges be put to person or that they plead to such charges — Semble: Advisable that s 9 receive necessary legislative attention to clarify procedure.

Extradition D — Application for — Procedure during enquiry in terms of ss 9 and 10 of Extradition Act 67 of 1962 — Evidence — Hearsay evidence admissible.

Extradition — Application for — Procedure during enquiry in terms of ss 9 and 10 of Extradition Act 67 of 1962 — Evidence — Magistrate not permitted to simply refuse to accept evidence produced by extraditee reflecting E upon his human rights or rights to fair trial, were he to be extradited.

Headnote : Kopnota

The appellant, a British national, was tried in a court in the United Kingdom in October 2000 on charges that he and others had non-consensual oral and F anal sex with young boys who were 13 and 14 years old at the time. He was not present when judgment was handed down, having fled to South Africa two days earlier. In his absence he was sentenced to eight years' imprisonment.

He nonetheless lodged an appeal against his conviction, which was successful on a technical aspect relating to the judge's summing-up to the jury. The court directed that a fresh indictment be lodged and that there should be a retrial. G A warrant was issued for his arrest. At that time fresh evidence came to light about further similar charges against the appellant, 41 in total, for which he was sought.

He was arrested in South Africa and a new trial indictment was lodged at a crown court containing the same offences as before, but including an additional three counts in respect of one of the boys involved in the early counts. The further offences all involved anal sex or other indecent acts committed H with boys under the age of 16 years and constituted offences in terms of South African law.

The appellant appeared before a magistrate in proceedings under ss 9 and 10 of the Extradition Act 67 of 1962 (the EA). When the hearing commenced the prosecutor handed up a certificate in terms of s 10(2) of the Act, in which I a chief prosecutor for the Crown Prosecution Service of England and Wales declared that the evidence contained in the appellant's extradition request was available for trial and sufficient to justify his prosecution. The appellant's counsel raised a number of objections to the proceedings, including: that the proceedings were to be conducted in the manner of a preparatory examination in terms of the Criminal Procedure Act 51 of 1977 — this meant that the prosecutor had to put forward the evidence that he had J in his possession and put the charges, in respect of which extradition

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was sought, to the appellant, who would then plead to those charges and A have the right to testify and call witnesses; that the evidence contained in the extradition request was entirely hearsay and inadmissible; and that the information provided was impermissibly vague and lacked detail. When counsel requested rulings on these issues, the magistrate became impatient and indicated that he would only make one ruling at the end of the matter.

During his evidence in the enquiry, the appellant raised further issues in B challenging the extradition request, including that there had been distorted and exaggerated media coverage of his trial and that his legal team were in the process of putting together a file containing extracts of some of the media reports. They also intended to include an affidavit from an expert on British law which would show that it discriminated unfairly against homosexuals in respect of the time bar for prosecution of the type of offence C with which he was charged (they were in the process of obtaining a copy of the original indictment for this purpose). His counsel applied for a postponement for these purposes, but this was refused.

At the conclusion of the enquiry, the magistrate held that the appellant was liable to be extradited and committed him to prison to await the Minister's decision in this regard. The appellant appealed against this decision. D

Held, as regards the nature of the enquiry in terms of s 9, that the decision of the Constitutional Court in Robinson * effectively relegated the magistrate, in relation to human-and constitutional-rights issues in an extradition enquiry from a non-associated state, to being a mere scribe and record compiler. He could not rule, even in the case of an obvious and flagrant breach of an E extraditee's treaty or fundamental human rights, that he was not liable for extradition on the grounds that it would be grossly unjust, and had to leave that to the Minister to decide in the exercise of his discretion. (See [47].)

Held, further, that it was obvious that, although the EA prescribed that the extradition enquiry before the magistrate was to be conducted in the manner in which a preparatory examination would be conducted, this did F not envisage a process whereby formal charges were put to an extraditee, who was then required to plead to those charges. Semble: In order to avoid confusion in this regard, it would perhaps be advisable for s 9 to receive the necessary legislative attention in order to make clear that which had long been accepted as implicit in regard to how proceedings in an extradition enquiry were to be conducted. (See [53].) G

Held, further, that hearsay evidence was pertinently admissible in extradition enquiries and it was not peremptory for any affidavits which were submitted by the requesting state to be in the first person. (See [68].)

Held, further, that the content of the affidavit tendered by the requesting state, together with the indictment and the warrant of arrest from the crown H court, adequately set out the charges against the appellant with sufficient particularity as regards time and place for the appellant to know what he was alleged to have done, and there was no merit in the complaints raised in this regard. (See [70].)

Held, further, that the magistrate was not permitted to simply refuse to accept any I evidence which the appellant wished to tender which might have reflected upon his fundamental human rights, or his rights to a fair trial, were he to

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be A extradited. He was obliged to receive any evidence pertaining to these aspects which could have a bearing on the exercise of the Minister's discretion. (See [73].)

Held, further, that the magistrate's refusal to entertain such evidence constituted an irregularity, in that it breached the appellant's procedural rights and the audi alteram partem principle. (See [75].)

Held, B further, that, given that the formalities required in terms of the EA and the European Convention on Extradition had been complied with and the appellant was clearly extraditable, there was no cause to set aside the proceedings. The failure to allow the appellant to put forward the affidavits and other evidence that he wished to, had to be remedied by returning the C matter to the magistrate and affording the appellant such an opportunity, before the matter was then referred to the Minister by the magistrate. (See [80].) The appeal was dismissed.

Cases cited

Southern Africa

Administrator, Transvaal, and Others v Traub and Others D 1989 (4) SA 731 (A): considered

Director of Public Prosecutions, Cape of Good Hope v Robinson 2005 (1) SACR 1 (CC) (2005 (4) SA 1; 2005 (2) BCLR 103): doubted

Garrido v Director of Public Prosecutions, Witwatersrand Local Division, and Others 2007 (1) SACR 1 (SCA): applied

Gavric v Refugee Status Determination Officer and Others E 2019 (1) SA 21 (CC) (2019 (1) BCLR 1; [2018] ZACC 38): applied

Geuking v President of the Republic of South Africa and Others 2003 (1) SACR 404 (CC) (2003 (3) SA 34; 2004 (9) BCLR 895; [2002] ZACC 29): applied

Harksen v President of the Republic of South Africa and Others F 2000 (1) SACR 300 (CC) (2000 (2) SA 825; 2000 (5) BCLR 478): referred to

Harksen v The President of the Republic of South Africa and Others 1997 (2) SACR 139 (C) (1998 (2) SA 1011): referred to

Minister of Home Affairs and Others v Tsebe and Others 2012 (5) SA 467 (CC) (2012 (10) BCLR 1017; [2012] ZACC 16): referred to

Mohamed and Another v President of the Republic of South Africa and Others (Society for the Abolition of the Death Penalty in South Africa and Another Intervening) G 2001 (2) SACR 66 (CC) (2001 (3) SA 893; 2001 (7) BCLR 685; [2001] ZACC 18): referred to

NL and Others v Estate Frankel and Others 2018 (2) SACR 283 (CC): applied

NL and Others v Frankel and Others 2017 (2) SACR 257 (GJ): applied

Patel v National Director of Public Prosecutions H 2017 (1) SACR 456 (SCA): dictum in para [40] applied

R v Alli Ahmed 1913 TPD 500: referred to

S v Bigione 2002 (1) SACR 60 (Nm): referred to

S v Williams 1988 (4) SA 49 (W): referred to.

Canada

Argentina v Mellino I [1987] 1 SCR 536: referred to.

Europe

Al-Skeini v United Kingdom (2011) 53 EHRR 18: referred to

Chahal v United Kingdom (1996) 23 EHRR 413: referred to

Saadi v Italy (2009)...