Will SA respect the law this time?
Publish date: 02 December 2019
Issue Number: 852
Diary: IBA Legalbrief Africa
Does SA’s administration extradite the former Mozambican Finance Minister to his home country at the risk of flouting its own laws, or does it extradite him to the US? ‘The Manuel Chang case’ says the Institute for Security Studies’ Peter Fabricius, ‘is a chance for SA to show that even foreign policy is governed by law’, a decision President Cyril Ramaphosa and his Justice Minister Ronald Lamola must make. In an analysis in ISS Today, Fabricius notes that in Chang v Minister of Justice & Correctional Services and Others; Forum de Monitoria do Orcamento v Chang and Others, the Gauteng High Court (Johannesburg) upheld Lamola’s application to rescind the May decision of his predecessor Michael Masutha to extradite Chang to Mozambique. Chang is appealing the High Court decision and Fabricius believes Lamola will oppose the appeal. ‘That would indicate that he’s leaning towards the bold decision of sending Chang to face trial in the US, on the grounds that justice will more likely be served there than in Mozambique.’ Fabricius adds: ‘It’s pretty clear that if he stands trial in the US, the defrauded and otherwise abused people of Mozambique would probably discover how the shipping scam worked and who else in government and perhaps elsewhere was implicated.’
Where does this leave Lamola? Fabricius believes he will probably announce soon if he intends to oppose Chang’s appeal against the High Court decision. ‘And where will he eventually extradite him to? In July Chang supposedly resigned from Parliament, so, according to the Mozambique Government, he may now be legally charged.’ Fabricius notes that in the High Court case, Advocate Max du Plessis – appearing as amicus curiae for the Helen Suzman Foundation – argued that the government was obliged to put law before politics, including foreign politics. He cited a ‘cohort’ of recent judgments by the country’s highest courts insisting that even the most political decisions ‘are not immune from legal challenge. Nor does the field of international relations provide a cloak which shields such decisions from judicial scrutiny.’ As the High Court accepted that argument, we have another court decision insisting that the law should trump foreign policy. Says Fabricius: ‘These court decisions risk creating a parallel universe to the real world of foreign policy where such rulings have been largely ignored by Pretoria. Is this about to change with the Chang decision? Is it naive to hope that Lamola decided to seek the court’s opinion so he could send Chang to where justice is most likely to be done – the US – and then justify the decision to the ANC’s Mozambique Liberation Front comrades (not to mention the ANC itself) on the grounds that ‘‘the law made me do it’’?’