Top court urged to intervene in extradition ruling

South Africa's (SA) National Prosecuting Authority (NPA) says the convictions of thousands of extradited criminals may be overturned if the Constitutional Court does not urgently intervene to limit the impact of the crucial extradition ruling that won former Free State Prremier Ace Magashule’s PA her freedom. She had been charged with fraud. News24 reports that according to Director of Public Prosecutions (DPP) Luckson Mgiba, the May 2024 Supreme Court of Appeal (SCA) decision in favour of US based celebrity artist Johnathan Schultz may result in people who have been extradited to SA and found guilty now being able to challenge their convictions. ‘Thousands of people have over the decades been extradited to SA at the initiative of the NPA or its predecessors,' he said in papers filed in SA's Constitutional Court on Friday. ‘Are all of them entitled to have their trials and convictions set aside? At present, without the retrospective application of Schultz being tempered, if these people approach a High Court, the binding answer which the High Court must give is: Yes. The result will be catastrophic for our criminal justice system.’ He contends that the ‘lawfulness of not just SA’s current and pending extradition requests, but even past extradition requests, has now been thrown into doubt’ by the Schultz ruling. As a result, Mgiba said the ‘NPA has a reasonable fear that all of SA’s past and current extradition requests are about to unravel’. Magashule’s former PA, Moroadi Cholota, has already used the Schultz judgment to successfully challenge the legality of her extradition from the US. The SCA ruled in that case that only the Minister of Justice and not the NPA could seek Schultz’s extradition from the US. Because the NPA had sought Cholota’s extradition, Free State High Court (Bloemfontein) Judge Phillip Loubser found he had no choice but to rule she was unlawfully extradited and that his court had no right to try her.

Attorney Sivesonke Ngwenya, who is representing the alleged killers of rapper Kiernan ‘AKA’ Forbes, brothers Siyabonga and Malusi Ndimande, previously told News24 that the rulings in favour of Cholota and Schultz were ‘directly relevant’ to the lawfulness of his clients’ extraditions from eSwatini. Ngwenya said the Ndimande brothers’ extradition was sought by the NPA and not the Minister of Justice. Lawyers for Elia Makotoane, who was extradited from Lesotho and charged with murder and kidnapping of his wife, Free State Regional Magistrate Mamello Thamae, say they ‘intend to pursue the ‘so-called Cholota strategy’, Mgiba said. The NPA is now pleading with the apex court to urgently hear its argument for why the impact of the Schultz judgment should be limited so it cannot be used to collapse other criminal cases in which the NPA sought the extradition of accused criminals. The potential of accused criminals being able to evade trial and convicts overturning the guilty findings made against them ‘would be devastating and cause irreparable harm to the criminal justice system and SA as a whole’, Mgiba said, adding: ‘The SCA’s judgment has opened the door to allow some of SA’s most wanted criminal suspects and/or convicted criminals to escape justice. Only this court can limit these effects.’