How extradition law challenges threaten high-profile cases in South Africa
The National Prosecuting Authority warns that recent legal precedents could the extradition matters of several suspects.
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The National Prosecuting Authority (NPA) has raised the alarm over the issue of authorisation for extradition requests arguing that a 2024 judgment on this matter may see dozens of criminal suspects and even convicted persons using the ruling to contest their extraditions.
In fact the NPA has said in court papers before the Constitutional Court that several challenges have been brought by those seeking to use the ruling to set aside their extraditions.
In the 2024 case involving Johnathan Schultz, the Supreme Court of Appeal heard a matter where Schultz argued that the NPA does not have authority to request an extradition. The SCA ruled in his favour and ordered that only the Minister of Justice had the power to request extraditions under the Extraditions Act and not the NPA. It further ruled that its ruling would apply with full retrospective effect.
The NPA's challenge in the Schultz matter will be argued next month in the Concourt. In its court papers, the NPA states that it is not contesting the merits of the SCA’s judgment.
It said it “would cooperate with the Justice Minister in a sensible and mutually beneficial manner when it came to extradition requests”.
However it is challenging the retrospective effect of the SCA’s declaration.
“If every single extradition request which the NPA has initiated on South Africa’s behalf over the past few decades becomes susceptible to review on the grounds that it should have been initiated by the Justice Minister, then the NPA, South Africa’s criminal justice system, and South Africa itself will be deeply and irreparably prejudiced,” the NPA states in its written submissions.
The ruling was relied on by ex-Free State premier Ace Magashule's personal assistant, Moroadi Cholota who was extradited by the United States of America to face prosecution in the Free State asbestos corruption case.
The court found that her extradition was unlawful based on the legal precedent in the SCA matter and the charges were withdrawn against her.
Now the NPA says the “Cholota strategy”, is being used by other criminal suspects facing extradition, or who have already been extradited.
Among the cases that could be impacted is that of the Ndimande brothers who have been accused of the murders of rapper Kiernan “ AKA” Jarred Forbes and Tebello “Tibz” Motsoane.
Explaining the impact, the NPA states in its submission to the court: “Even excluding those for whom extradition requests have been resubmitted post-Schultz and excluding those who (like Ms Cholota) have been surrendered to South Africa already, 59 of South Africa’s most wanted criminal suspects remain, including the Ndimande brothers, Shepherd and Mary Bushiri, and Dylan Dean Taljaard. If one includes persons in the position of Ms Cholota, the list of priority suspects expands to include persons such as Michael Lomas, who was extradited from the UK to Eskom-related fraud charges amounting to R1.5 billion.”