Who Possesses The Authority To Request The Extradition Of Saffas From The United States?



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In the case of Schultz v Minister of Justice and Correctional Services and Others, the Supreme Court of Appeal ("SCA") heard an appeal against the decision of the Gauteng Division of the High Court, Pretoria.
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In the case of Schultz v Minister of Justice and Correctional Services and Others, the Supreme Court of Appeal ("SCA") heard an appeal against the decision of the Gauteng Division of the High Court, Pretoria. The central issue in this appeal was whether the power to request the extradition of a person from the United States of America to stand trial in the Republic of South Africa vests in the executive authority of the Minister of Justice and Constitutional Development ("the Minister") or with the National Prosecuting Authority ("NPA").


In November 2019, the South African Police Service ("SAPS") arrested several people accused of offences related to the alleged theft and sale of unwrought precious metals. The SAPS also executed search warrants, supported by an affidavit stating that Johnathan Richard Schultz (a South African citizen residing in the United States) was an active member of one of the companies allegedly involved in committing the offences.

Accordingly, when the arrested persons appeared in court in March 2022, the prosecution sought a postponement to allow time for the NPA to request Schultz's extradition from the United States. In response, Schultz approached the High Court for urgent relief seeking an order declaring that only the Minister, in his capacity as a member of the national executive, had the authority to submit a request for the extradition of a South African citizen from the United States.

It was noted in the High Court that, on 16 December 1999, South Africa and the United States entered into an Extradition Treaty. In terms of Article 1 of the Treaty, the countries agreed to extradite to each other persons whom the authorities in the requesting State have charged with, or convicted of an extraditable offence. Schultz argued that exercising power in terms of this Treaty vests in the Minister, not the NPA.

The High Court found that section 179 of the Constitution, read with sections 20 and 33 of the National Prosecuting Authority Act 32 of 1998, vests the NPA with the power to institute and conduct criminal proceedings on behalf of the State. Further, the NPA is empowered under section 179(2) of the Constitution to 'carry out any necessary functions incidental to instituting criminal proceedings'. The High Court accordingly held that, under this statutory scheme, prosecutions fell within the exclusive domain of the NPA, which includes the power to request the extradition of an individual from the United States.

The SCA's viewpoint

The SCA stated that the starting point for deciding this issue involves considering the principle of legality which dictates that no power may be exercised beyond that which is conferred by law. Therefore it is essential to identify both the source of power and to whom it is vested. In this case, the source of power requires an examination of the extradition process which may be defined as 'the delivery by one State – at the request of another – of an individual within its jurisdiction who is accused, or has been convicted, of a crime committed within the jurisdiction of the other State for the purposes of standing trial or sentence in the requesting State'.

The SCA stated that the procedure governing the extradition process operates at both an international and domestic level. Internationally, an extradition request is governed by the rules of public and customary international law. Domestically, States are regulated by their own domestic laws which, in the case of South Africa, involves the Extradition Act. Having identified the source of the power, the SCA considered whether the power vests in the Minister or the NPA to request the extradition from another state.

The SCA found that although the Extradition Act is silent in respect of outgoing extradition requests made to foreign states, an essential element of extradition proceedings is that it involves an act of sovereignty between two States. This, in turn, necessarily implicates foreign relations in which powers are bestowed upon the executive branch of government. The SCA held that this is consistent with international law and Article 7(2) of the Vienna Convention on the Law of Treaties, in which it is presumed that where foreign functions are performed by a State, it does so through its executive officials.

This is further supported by section 231(1) of the Constitution which provides that 'the negotiating and signing of all international agreements is the responsibility of the national executive'. Although section 2 of the Extradition Act confers this power on the President of South Africa, it was held in President of the Republic of South Africa and Others v Quagliani, and Two Similar Cases, that the President was empowered to delegate the power to enter into extradition agreements to the Minister. Additionally, section 232 of the Constitution recognizes that customary international law is law in South Africa unless it is inconsistent with the Constitution or an Act of Parliament.

Finally, in terms of section 233 of the Constitution, the courts are enjoined to prefer any reasonable interpretation of legislation consistent with international law over any alternative interpretation inconsistent with it. The SCA accordingly reasoned that it would be contrary to established international law principles if it were to hold that the NPA, rather than the Minister, possessed the decision-making power in respect of outgoing extradition requests. Furthermore, it would infringe upon the separation of powers doctrine by according to an executive function to a non-executive organ of state.

The SCA thereafter provided further guidance on the distinction of functions performed by the NPA and the Minister. In this regard, the NPA, as the prosecuting authority, is empowered to determine who is to be prosecuted and for what charge. The Minister plays no role in the exercise of these duties. However, if the accused individual is residing in a foreign State, the NPA will be required to seek assistance from the Minister, as executive authority, to decide whether and when to make an extradition request to the foreign State in a manner which does not undermine the NPA's prosecutorial independence.

The SCA concluded that the High Court's finding that an extradition request is incidental to the functions of the NPA cannot be sustained, and accordingly set aside and replaced the High Court's order with one which declared that only the Minister had the power to make such a request for the extradition of Schultz from the United States.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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