Ministry of Justice and Correctional Services provides a status update on Extradition Cases from and to South Africa
The Ministry of Justice and Correctional Services is actively and diligently addressing Mutual Legal Assistance in Criminal Matters and Extradition requests involving South Africa. Minister Ronald Lamola is committed to transparency on these matters and thus, the Ministry will provide regular updates on the current status of these cases.
Fulgence Kayishema
Although this is not an extradition case, but rather a request from a Criminal Tribunal the matter is included. The International Residual Mechanism for Criminal Tribunals (the IRMCT) was established to deal with the cases of the two International Criminal Tribunals being, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The IRMCT has indicted Mr Fulgence Kayishema for his role in the Rwandan genocide. A warrant for Mr Kayishema’s arrest was issued by the IRMCT.
The Prosecutor of the IRMCT submitted the request along with the indictment and warrant of arrest in relation to Mr Kayishema to the Government of the Republic of South Africa. This request led to a number of engagements between South Africa and the Prosecutor of the ICTR.
The request cannot be executed as a normal extradition request under the Extradition Act, 1962 (Act No. 67 of 1962), or in accordance with the Implementation of the Rome Statute of the International Criminal Court Act, 2002 (Act No. 27 of 2002), as requests from tribunals do not fall within the ambit of this legislation.
The position is that there is no domestic legislative framework to deal with the mechanism’s request. The request is being dealt with in accordance with South Africa’s international law obligations.
The matter was transferred to the High Court, and has been set down for hearing on 1 November 2023. It is worth noting that along with the IRMCT request Mr Kayishema is also being charged with 51 counts of contravening the Immigration Act, 2002 (Act No. 13 of 2002), and three counts of fraud.
He appeared in the Cape Town Magistrate’s Court on 18 August 2023, and the case was postponed to 27 October 2023, for further investigation. The Standing Committee for Refugee Affairs (SCRA) further served Mr Kayishema with a notice to revoke his refugee status and that of his dependents. He was given 30 days after receipt of the notice to make representations as to why his refugee status should not be cancelled. Representations were made to the SCRA on Mr Kayishema’s behalf by his attorneys, and the determination of the SCRA is yet to be made.
Shepherd Huxley Bushiri and Mary Bushiri
On 26 November 2020, a request was received from the National Director of Public Prosecutions (NDPP) for the extradition of the Bushiris from the Republic of Malawi to the Republic of South Africa to stand trial on charges of Fraud, Theft, Money laundering, Racketeering, Failure to comply with bail conditions set by a court of law; Failure to comply with the provisions of the Immigration Act; Contravening exchange control regulations; Forgery; Rape; Imputing to a person causing injury by supernatural means or naming a person as a wizard; Crimen Injuria and Contravening sections 14(1)(b) and 15(2)(e) and Schedule 1, sections 2 and 5 of the Companies Act.
The request is made in accordance with the Extradition Treaty between the Republic of South Africa and the Republic of Malawi dated 10 March 1972, and in terms of the SADC Protocol on Extradition dated 3 October 2002, to which both countries are signatories.
The extradition request was subsequently delivered to the office of the Attorney-General in Malawi on 5 December 2020. The extradition hearing proceeded in the Lilongwe Magistrates Court in Malawi.
During the initial extradition proceedings in the Magistrates Court in Lilongwe the attorneys acting on behalf of the Bushiris brought various interlocutory applications, the first of which was that South Africa could not rely on the SADC Protocol on Extradition as according to them, the Protocol was not yet domesticated. This application was dismissed by the court.
The matter was then postponed to Friday 4 June 2021 for the extradition hearing to start. During the proceedings the attorneys for the Bushiris argued that the witnesses who would testify against the Bushiris in South Africa should travel to Malawi to give evidence during the extradition proceedings. The Magistrate’s Court ruled in favour of the defence that the witnesses should travel to Malawi. The Director Public Prosecutions in Malawi filed an application to review the ruling.
On 20 August 2022, the Court ruled in favour of the Presiding Magistrate, and indicated that the extradition hearing in Malawi will be heard in the same fashion as a criminal trial, and that evidence may be heard in the form of sworn affidavits or by way of virtual or physical testimony.
The Bushiris however took this Magistrate’s Court judgment on appeal. On 15 November 2022, the High Court of Malawi (Criminal Division) sitting at Lilongwe heard arguments by the Bushiris regarding their appeal against the Magistrate’s ruling.
They argued that, the Magistrate erred in law in holding that Section 171 of the Criminal Procedure Act of South Africa is the same as Section 208 of the Criminal Procedure and Evidence Code of Malawi. They further argued that the Magistrate misapplied the law under Sections 9 and 13 of the Extradition Act of Malawi.
The State opposed the Appeal. The State, through the Director of Public Prosecutions, argued that the guiding principle of law is contained under Section 13 of the Extradition Act and, in the circumstances, the magistrate correctly applied Section 13 of the Extradition Act and Section 208 of the Criminal Procedure and Evidence Code.
The High Court delivered its judgment on 13 February 2023. Judge Kalemba referred to the judgment of Canada v Schmidt [1987] 1 S.C.R 500, where it is stated that “…an extradition hearing is not a trial. It is simply a hearing to determine whether there is sufficient evidence of an alleged extradition crime to warrant the Government under its treaty obligations to surrender a fugitive to a foreign country for trial by the authorities there for an offence committed within its jurisdiction. Thus, the judge at an extradition hearing has no jurisdiction to deal with defenses that could be raised at trials unless, of course, the Act or the treaty otherwise provides”. This approach is correct in the sense that an extradition hearing is a sui generis trial, and that the State only have to prove that there is enough evidence by the requesting State to prosecute the suspect on charges that are extraditable.
The court then goes on to state that witnesses to the preliminary hearing (the extradition hearing) are those witnesses who will be able to answer and convince the court conducting the inquiry that the evidence available to prosecute the suspect is sufficient, that the suspect will not be prosecuted as a result of his/her political views, race, religion, nationality etc. Judge Kalemba further states that “In a preliminary inquiry/extradition hearing, therefore, it is the State requesting the surrender of the fugitive offender(s), who is on trial (as it were), because it is the requesting State that must pass the test and satisfy the court that it meets all the requirements under section 6 of the Extradition Act” and “The representatives/agents who are witnesses to the preliminary inquiry/extradition hearing will be able to tender witness statements, duly authenticated, which purports to set out evidence given on oath in their country…”
During 25 May 2023 to 31 May 2023 a delegation of South African prosecutors and an official of the Department of Justice travelled to Malawi to assist the Malawian prosecutors with the preparation for the hearing that was scheduled for 30 May 2023. On 30 May 2023, the matter was postponed due to arguments raised on behalf of the Bushiris that South Africa’s extradition request was not properly authenticated. The South African prosecutors prepared arguments to assist the Malawian prosecutors with the filing of supplementary affidavits for purposes of the interim application where the legal team of the Bushiris is again trying to stop the extradition processes.
On 10 August 2023, the formal application brought by the Bushiris was argued in court and thereafter postponed to 11 September 2023, for a ruling by the court. On 11 September 2023, the Magistrate gave judgment during which she indicated that the extradition request was in fact not certified in terms of the Malawi’s Extradition Act.
The State however was afforded an opportunity to re-certify the request. The matter has been postponed to 10 October 2023, on which date state representatives will give testimony.
Mr Atul Kumar Gupta and Mr Rajesh Kumar Gupta
On 5 June 2023, the Minister of Justice and Director-General accompanied by a Senior Officials delegation visited the UAE and met with His Excellency Addullah bin Sultan bin Awad Al Nuaimi, the Minister of Justice in the UAE and His Excellency Judge Abdul Rahman Murad Al Balushi, the Director of International Cooperation, the UAE Central Authority, to engage the authorities in the UAE on the extradition request for Mr Atul Kumar Gupta and Mr Rajesh Kumar Gupta, and other areas of cooperation.
His Excellency Addullah bin Sultan bin Awad Al Nuaimi, assured the Minister that the UAE will put the necessary measures in place to meet its international obligations in terms of the Extradition Treaty to assist and support South Africa in its quest for the extradition of the Gupta brothers. To this end it was agreed that a virtual technical meeting between the prosecutors in the UAE and South Africa will take place on 15 June 2023.
On 15 June 2023, the virtual technical meeting between the prosecutors in the UAE and South Africa took place. At this meeting, South Africa emphasised the need for the UAE to respond to a letter sent by the South African Central Authority dated 4 May 2023. The UAE representatives requested that South Africa resend the letter, in both the English and Arabic language, in order to enable them to provide the necessary responses.
In the letter that was addressed to the UAE Central Authority, the Department requested certain information that would be vital in order to make certain informed decisions on how to proceed with the current extradition request. On 19 June 2023, the South African Embassy in Abu Dhabi resent the original Note Verbale including the Arabic translation as agreed upon during the technical meeting.
On 26 July 2023, the South African Embassy in Abu Dhabi forwarded a Note Verbale dated 25 July 2023, as received from the UAE Central Authority in which the UAE refers to the virtual technical meeting that took place on 15 June 2023, and in which South Africa is requested to urgently re-submit a new extradition request for the Gupta brothers. It is however our view that a new extradition request can only be submitted to the UAE once the questions raised in our Note Verbale dated 19 June 2023, have been sufficiently answered by the UAE.
On 18 and 28 August 2023, respectively the Minister and Director-General directed letters to their counterparts in the UAE stating South Africa’s position that despite the UAE’s invitation to submit a new extradition request, it remains necessary to first obtain clarity on the questions asked previously by the Central Authority of South Africa in order to assess the matter before a decision can be taken to submit a new extradition request. The Department has not yet received a response to the correspondence and the South African Embassy in Abu Dhabi is following-up in this regard.
Ian Wares
Mr Wares filed an appeal in terms of the Extradition Act against the judgment order made against him, which was handed down by the Cape Town Magistrate’s Court on 23 August 2019, and also the decision made by the Minister on 19 February 2020, that he be surrendered to the United Kingdom to stand trial on six charges of lewd, indecent and libidinous practices and behavior and one charge of indecent assault. Mr Wares also instructed his legal representative to proceed with the review of the proceedings.
The relief sought by Mr Wares was to review and set aside the decision of the Magistrate made during 2019, and remitting the matter back to the Magistrate for a rehearing. Mr Wares further sought to declare the Minister’s decision unlawful and to review and set aside the decision of the Minister made during 2020.
Mr Wares also brought an application to declare section 10(5) of the Extradition Act unconstitutional in insofar as it does not provide for the power of a magistrate to extend or grant bail after a committal order has been made, pending the Minister’s decision in terms of section 11 of the Extradition Act. Mr Wares claims that the Extradition Act does not conform to the Bill of Rights insofar as it results in an unjustified limitation of the right against arbitrary deprivation of freedom and this constitutes an unjustified limitation of section 12(1)(a) of the Constitution.
Submissions were filled by the State Attorney on behalf of the Minister, and the matter has been set down for hearing in the Cape Town High Court on 27 October 2023.
Guus Kouwenhoven
On 7 July 2017, the Department received a request for the extradition of Mr Kouwenhoven from the Netherlands. The Dutch authorities is requesting Mr Kouwenhoven’s extradition to serve a term of nineteen years imprisonment imposed upon conviction on three charges of contravening article 8 of the War Crimes Act and two charges of contravening the Sanctions Act, 1977. The offences were committed in Liberia during a war which took place from 1997 until 2003.
Mr Kouwenhoven provided Mr Charles Taylor with weapons and ammunition, a camp for the storage and distribution of the weapons and ammunition and assisted Mr Taylor’s troops by arming his own employees. The Netherlands exercised jurisdiction over the offences as Mr Kouwenhoven is a Dutch citizen.
After years of legal cases brought by Mr Kouwenhoven to prevent his extardition the Magistrate finally ruled on 18 August 2023, that Mr Kouwenhoven has been convicted of extraditable offences committed within the jurisdiction of the Netherlands, which state is a party to an extradition treaty with South Africa, and therefore found that in terms of section 10(1) of the Extradition Act, that he is a person liable to be extradited to the Netherlands. Mr Kouwenhoven filed leave to appeal the ruling. The DPP in Cape Town is opposing the appeal, and no court date has been set for the hearing at this stage.
Mr Mahamodo, Mr Francis Deliot Regasy and Mr Zava Herimanana Anjaranantenaina
The Public Prosecutor’s Office in Madagascar requested the extradition of the accused from South Africa to Madagascar to stand trial on charges of contravention of inter alia the Malagasy Anti-Corruption Act, Mining and Customs Code and forgery.
On 17 February 2021, an extradition request was received directly from the Embassy of Madagascar. The request did not comply with the provisions of the Extradition Act and on 19 February 2021, a meeting was conducted with the Charge d’ Affaires from the Embassy and Mr David Erleigh, an attorney acting on behalf of the Government of Madagascar where the shortcomings in the request were explained.
It is alleged that on 31 December 2020, the accused chartered a private jet from Antananarivo to O.R Tambo International Airport from where they were due to take a flight on Singapore Airlines to Dubai. When the accused arrived at O.R Tambo, they were caught in possession of 73.5 kilograms of gold bars.
The accused could not produce legal documents for the gold and were therefore arrested on charges relating to the contravention of the Precious Metals Act, 2005 (Act No. 37 of 2005) and the Customs and Excise Act, 1964 (Act No. 91 of 1964).
The accused are currently in custody at Modderbee Prison in Benoni and the South African Police is still investigating the matter. Should the National Director of Public Prosecutions decide to proceed against the accused, the South African case against the accused and the request for the extradition of the accused will be dealt with simultaneously. If the accused are convicted and sentenced to imprisonment, they will first serve their sentence in South Africa where after they will be surrendered to Madagascar, if found extraditable.
The extradition matter is currently before the Magistrate, Kempton Park for the extradition enquiry, which has not yet been finalized. Afeez Akinloye A section 11 (surrender order) was signed by the Minister and handed to Interpol. Interpol will make the necessary arrangements with the US authorities to collect Mr Akinloye. Mr Akinloye remains in custody pending finalisation of arrangements for his transfer. Sheriff Opeyemi Olalere Mr Olalere filed a notice to appeal his extradition to the USA. The appeal has not yet been heard in court. Mr Olalere remains in custody. He applied for bail, which was opposed. Judgment in his bail application will be delivered on 3 October 2023. Ends Issued by the Ministry of Justice and Correctional Services Enquiries Mr. Chrispin Phiri Spokesperson: Ministry of Justice and Correctional Services
Enquiries: Mr. Chrispin Phiri
Ministry of Justice and Correctional Services Spokesperson
+27(0) 81 781 2261
Cell: +27 (0) 81 781 2261
