ConCourt case to determine fate of extraditions

The Constitutional Court will tomorrow (Tuesday) hear a challenge on how South Africa (SA) handles extradition requests, a case that could see some of the country’s most notorious fugitives go free. At least three high-profile people have already used the loophole to escape extradition, with more expected to follow suit. The Daily Maverick reports that Richard Payne, who is in the UK, is accused of defrauding the Gauteng Department of Health of R700m. Despite a decade of investigation, Payne remains out of reach. Former ANC secretary-general Ace Magashule’s ex-PA Moroadi Cholota, was extradited to SA in August 2024 in connection with the R255m asbestos scandal, which included charges of fraud, corruption, theft and racketeering. And Johnathan Schultz, who was arrested in 2019 in connection with the alleged theft and sale of unwrought precious metals now resides in the US. He initially brought the case challenging his extradition, which raised the loophole. When his co-accused appeared in court, the NPA sought a postponement to allow time for the prosecution team to request Schultz’s extradition from the US, which has not happened to date.

Schultz’s case is challenging the long-standing practice in SA law: who has the power to ask another country to extradite someone to SA to face trial. Schultz believes that only the Minister of Justice, and not the National Prosecuting Authority (NPA), can legally make such a request under SA law. In 2022, the Gauteng High Court (Pretoria) disagreed and found in favour of the NPA, which argued it had the power to initiate the requests, as it had done so in good faith for decades. DM notes that both the NDPP and provincial DPPs have argued that extradition has two parts: domestic and international. Domestically, the NPA has the power to decide whether someone should be extradited to face criminal charges, using its powers under section 179(2) of the Constitution. Internationally, the Department of International Relations & Co-operation represents SA and sends the request to the foreign country. This applies whether the request was initiated by the NPA or the Justice Minister.

In December 2024, however, the SCA overturned the Gauteng High Court (Pretoria) decision and agreed with Schultz when it ruled that the NPA had, in fact, overstepped because the Extradition Act never explicitly gives the NPA the authority to make outgoing requests. That decision, known as the Schultz judgment, effectively meant that every extradition request the NPA had ever made could now be challenged as invalid, because they had been made by the wrong authority. DM notes that the SCA ruling is now before the Constitutional Court, which must decide whether it should stand and, if it does, whether it applies retrospectively to all past extradition requests made by the NPA. If the highest court in the land rules against the NPA, it means every extradition request made by the NPA could be challenged, allowing many alleged criminals beyond the borders of SA to escape justice.