REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA 
[WESTERN CAPE HIGH COURT, CAPE TOWN]
Case No: 4731/2010

In the matter between:

and
THE MINISTER OF JUSTICE AND

THE FORMER MINISTER OF JUSTICE

THE NATIONAL DIRECTOR OF PUBLIC

JUDGMENT DELIVERED: 14 JUNE 2010

FOURIEJ: INTRODUCTION
[1] The events preceding this review application span a period of more than 20 years. Ever since applicant's arrival in South Africa on 26 December 1986, his relationship with the South African authorities has been troubled. In fact, he maintains that, probably because of his undeserved reputation as an influential member of the Italian Mafia, the South African Government has for many years waged a vendetta against him.

[2] Notwithstanding this troubled relationship, applicant was granted South African citizenship by automatic naturalisation on 24 January 1995. His alleged membership of the Italian Mafia has, however, led to six requests by the Italian Government to the South African authorities, for the extradition of applicant. The first five requests, which were made during the period December 1992 to August 2003, were, for a variety of reasons, unsuccessful. The sixth request, dated 16 January 2007, was received by the South African Government on 5 February 2007. It is this request which is the subject of the present application.

THE LEGISLATIVE SCHEME

[6]    Article 2.1 of the Convention provides as follows:

This constitutes the Convention's double criminality requirement, namely that the relevant offence should be punishable under the laws of the requesting party and of the requested party.

[7]    Article 12 of the Convention prescribes the following formalities:

"(1) The request shall be in writing and shall be communicated through the diplomatic channel. Other means of communication may be arranged by direct agreement between two or more Parties.
(2)    The request shall be supported by:
(a) The original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting Party;
(b) A statement of the offences for which extradition is requested. The time and place of their commission, their legal descriptions and a reference to the relevant legal provisions shall be set out as accurately as possible; and
(c) A copy of the relevant enactments or, where this is not possible, a statement of the relevant law and as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity and nationality. "

[8] The relevant provisions of the Act, creating the mechanism for the extradition of persons liable to be extradited, may be summarised as follows:
(a) Requests for the surrender of persons to a foreign State must be made to the Minister of Justice (presently the Minister of Justice and Constitutional Development) ("the Minister") (Section 4 (1)).
(b) Upon receipt of a notification from the Minister to the effect that a request for the surrender of a person to a foreign State has been received, a magistrate may issue a warrant for the arrest of such person (Section 5 (l)(a)).
(c) Any person detained under a warrant of arrest must be brought before a magistrate in whose area of jurisdiction such person has been arrested, whereupon the magistrate must hold an enquiry with a view to the surrender of such person to the foreign State concerned (Section 9(1)).
(d) If upon consideration of the evidence adduced at the enquiry, the magistrate finds that the person brought before him or her is liable to be surrendered to the foreign State, he or she shall issue an order committing such person to prison to await the Minister's decision with regard to his or her surrender (Section 10(1)).
(e) The magistrate issuing the order of committal must forthwith forward the copy of the record of the proceedings, together with such report as he or she may deem necessary, to the Minister. The Minister may order or refuse, with reference to certain criteria, surrender to the requesting foreign State (Sections 10 (4) and 11).
(f) Any person against whom an order under section 10 has been issued, has the right of appeal to the High Court and no order for the surrender of such person shall be executed before the right to an appeal has been exercised or waived (Sections 13 and 14).

THE ISSUING OF THE SECTION 5 (1) (a) NOTICE
[9] The instant request for applicant's extradition was held over by the South African Department of Justice and Constitutional Development ("the Department"), pending the outcome of the appeal process in Italy. When the Supreme Court of Appeal in Rome finally dismissed applicant's appeal on 13 March 2009, the Department set the process in motion for applicant's extradition. This resulted in second respondent (Minister Surty) issuing a written notification in terms of Section 5 (1) (a) of the Act, on 23 April 2009. It is, however, common cause that the notice has not yet been transmitted to a magistrate, as contemplated in Section 5 (1) (a) of the Act. Minister Surty was subsequently succeeded by the first respondent (Minister Radebe) who, on 16 July 2009, confirmed or endorsed in writing that he agreed with Minister Surty's decision to issue the Section 5 (1) (a) notice and that he had no reason to differ from it.

RELIEF SOUGHT BY APPLICANT
[10] The issuing of the notification by Minister Surty and the subsequent confirmation thereof by Minister Radebe, prompted applicant to institute these review proceedings. Wide-ranging relief is sought, including the reviewing and setting aside of the decisions of Ministers Surty and Radebe, to issue and confirm the notice in terms of section 5

DISCUSSION

[12] Applicant submits that the Minister, in issuing the notification, is required to reach a conclusion as to whether the person is liable to be extradited to the requesting State. Respondents, on the other hand, contend that all that is required of the Minister at the section 5 (1) (a) stage, is to satisfy himself or herself as to the formal validity of the extradition request. They submit that a conclusion as to whether such a person is liable to be extradited to the requesting State, can only be reached by a magistrate after an enquiry as contemplated in sections 9 and 10 of the Act.

[14] The Convention, which regulates the procedure on the international plane, confirms the obligation of the parties thereto to extradite and to surrender to each other, subject to the conditions laid down in the Convention, persons who have committed offences punishable under the laws of the requesting party and of the requested party. As indicated earlier, Article 12 of the Convention details the formalities with which the request and supporting documents have to comply. However, as the Convention only deals with the extradition process on an international plane, it does not prescribe the manner in which the requested party has to deal with the request at the domestic level.
[15] In construing the provisions of the Act it is evident that, upon receipt of a request for the extradition of a person, the Minister has to take a decision as to the fate of the request. It is obvious that the Minister has the option of either refusing the request or acceding thereto by issuing a notice in terms of section 5 (1) (a) of the Act. A third initial option also appears to be available, namely, to require an incomplete or formally defective request to be amended or supplemented.

[17] The question which now presents itself, is what considerations are to be taken into account by the Minister, in deciding whether or not a section 5 (1) (a) notification should be issued. Once again, one has to turn to the Convention and the Act for an answer. It is, in my view, clear from the provisions of the Convention and the Act, that, in this instance, the rule of double criminality underlies the process of extradition. This much appears from Article 2.1 of the Convention and sections 2 and 3 of the Act.

2004 (9) BCLR 895 at para 26.

[28] Finally, on this issue, the proof of the pudding is in the eating. It is common cause that previous requests by the Italian Government for the extradition of applicant, were refused prior to the enquiry stage, also by reason of the fact that the alleged offence was not an extraditable offence.

[29] I now turn to consider whether, in issuing the section 5 (1) (a) notice in the instant case, the Minister formed a view that applicant has been convicted or is accused of an extraditable offence. It is common cause between the parties, that the operative decision is that of Minister Surty. As mentioned earlier, Minister Radebe merely confirmed or endorsed the decision of his predecessor and stated that he had no reason to differ from it.

"The Minister does not need to be satisfied, prior to the issue of a section 5 (1) notification, that the offence in question is indeed an extraditable offence. That is one of the jurisdictional facts of which the magistrate (and the Minister when considering the magistrate's findings) must be satisfied following an inquiry held as a result of the section 5 (1) notification ".

[38] I should add that, in my view, the decisions of the two Ministers may also be impugned on the ground that these decisions were based on material errors of fact, which resulted in them taking irrelevant considerations into account.

"One is not concerned with the merits of the opinion resulting from the exercise of discretion, but with whether the exercise of the discretion, whatever the outcome, was a due, proper and regular exercise of discretion. The effect of innocent misrepresentation misleading the Minister is the same as the effect of fraud. ...His discretion has been trammelled and misled... by false information and considerations which have impinged upon the due exercise of his discretion. "

If the influence of irrelevant factors is established, it does not appear to be necessary to prove that they were the sole or even the dominant influence. As a general rule it is enough to prove that their influence was material or substantial."

[42] The errors contained in the memoranda prepared by the Department, are no doubt of a serious nature. They relate to the main purpose of the request, i.e. the extradition of applicant for offences allegedly committed by him in Italy. International drug trafficking and money laundering are no doubt serious offences, which would impress upon any objective reader of the memoranda that the person whose extradition is sought, has been convicted of very serious crimes. In these circumstances the Ministers cannot, in my view, be allowed to defend the decision by speculating what their decision would have been had the memoranda not contained these errors of fact.

CONCLUSION
[44] In view of the aforesaid findings, applicant is entitled to the relief sought in paragraphs 8.3 and 8.4 of the amended notice of motion, i.e. the reviewing and setting aside of the respective decisions taken by Ministers Surty and Radebe. It is accordingly not necessary to consider the additional ground upon which the review application is based, namely the alleged existence of institutional bias on the part of the South African authorities.

[45] Returning to the amended notice of motion, it appears that the need for any interim relief as sought in paragraph 2 thereof, has fallen away. As far as paragraph 3 is concerned, applicant has not proceeded with the relief relating to Mr. E. Daniels. As regards the relief involving Mr. N. J. Makhubele, I do not believe that it would be appropriate for this court to prescribe to the Department which of its officials should be involved in the processing of any extradition requests. Similarly, I am of the view that the granting of an order in terms of paragraph 4 would be inappropriate, as it would be tantamount to the court meddling in the affairs of the Directorate of Public Prosecutions.

[46] There is no need for the relief sought in paragraph 5.1 of the amended notice of motion, as it is common cause that no warrant of arrest has been issued pursuant to any Italian request for applicant's extradition. It would also be premature for the court to pronounce upon the extraditability of applicant, as is envisaged in the relief sought in paragraph 5.2.

[47] As I have already found, applicant is entitled to the relief sought in paragraphs 8.3 and 8.4 of the amended notice of motion. The granting thereof should suffice and there is no need for the wide-ranging relief sought in paragraphs 8.1, 8.2, 8.5 and 8.6. The relief sought in paragraph 8.7, is also not required, as no warrant has yet been issued. Similarly, the relief sought in paragraph 9, is not required, as the relevant notification has not yet been referred to any magistrate. By virtue of the finding that applicant is entitled to relief in terms of paragraphs 8.3 and 8.4 of the amended notice of motion, it is also unnecessary to consider the alternative relief sought in terms of paragraph 10.

[48] In the light of the finding that the relief to which applicant is entitled, is restricted to paragraphs 8.3 and 8.4 of the amended notice of motion, it is not necessary to adjudicate upon respondents' application to strike out matter from applicant's amended notice of motion and certain supplementary affidavits. Nor is it necessary to make any finding on respondents' application in terms of Rule 30.

[50] As regards costs, applicant as the successful party is entitled to his costs. I agree that this is a matter which justified the employment of three counsel.

[51]   In the result the following order is made:
1. The decision of second respondent taken on 23 April 2009, to issue a notification in terms of section 5 (1) (a) of the Extradition Act No. 67 of 1962, in relation to applicant's extradition to Italy, is reviewed and set aside.

4. The first to fourth respondents are directed to pay the costs of this application, including the costs consequent upon the employment of three counsel, jointly and severally, the one paying the other to be absolved.

I agree 

Advocate for Applicant			: Adv. J C Heunis SC 
						: Adv. P F Cloete SC 
						: Adv. M F Osborne
Advocate for Respondent			: Adv. I Jamie SC 
						: Adv. S Van Zyl 
						: Adv. N Mayosi
Attorney for Applicant			: N V Snitcher of Snitchers Attorneys
Attorney for Respondent			: A M Scott of the State Attorneys 

Date of Judgment				: 14 June 2010