JOHANNESBURG – The Constitutional Court has delivered a landmark ruling clarifying the separation of powers in extradition matters, declaring that only the National Executive, and not the National Prosecuting Authority (NPA), has the legal power to request the return of fugitives from foreign states.
In a unanimous judgment penned by Justice Leona Theron and delivered on 23 January, the apex court found that while the NPA may prepare and draft extradition documents, the formal request must be authorised by the National Executive.
Unlawful extraditions
The ruling stems from two high-profile cases: the extradition of Jonathan Schultz from the United States and Nomalanga Moroadi Selina Cholota, also from the United States In both instances, the court found that the extradition requests were authorized by officials within the NPA rather than the National Executive, rendering the process “unlawful”.
Cholota, the former personal assistant to Ace Magashule, had challenged her extradition in the Free State High Court, arguing that the procedural flaws should bar her prosecution in South Africa.
Cholota is expected back in court on Monday, when the trial court must finalise a trial-within-a-trial regarding her status before the main proceedings can continue on 2 March.
This follows a brief court appearance on 26 January, where the R255 million asbestos corruption trial was delayed once again. The postponement is primarily due to ongoing legal proceedings involving Magashule’s former personal assistant.
Jurisdiction remains intact
Despite the finding of unlawfulness, the Constitutional Court provided a significant victory for the state’s prosecuting arm. The court ruled that the unlawful nature of an extradition does not, by itself, deprive South African courts of criminal jurisdiction over the accused.
“The fact that the extradition was unlawful … does not of itself deprive the High Court of South Africa … of criminal jurisdiction over the respondent,” the order stated.
Legal implications
The judgment settles a long-standing dispute regarding the interpretation of the Extradition Act 67 of 1962 and the constitutional independence of the NPA. The court emphasised that the power to conduct foreign relations – including requesting a foreign sovereign to surrender an individual – is a function of the National Executive.
The NPA’s role is restricted to the prosecutorial side of the process, specifically the preparation of the case and the draft request, while the final diplomatic and legal act of “making” the request rests with the Executive.
Next steps
The court has remitted the matters back to the High Courts in Bloemfontein and Johannesburg to determine any remaining grounds of the respondents’ special pleas. While the accused remain in the country, they may still face trial despite the procedural errors identified in their return to South Africa.
The Minister of Justice and Constitutional Development and the Minister of International Relations and Cooperation were cited as respondents in the matter. All parties were ordered to pay their own costs in the Constitutional Court.
