In the matter of a request by the government of the Republic of South Africa to the government of the Republic of Malawi for the extradition of Mr Shepherd Bushiri and Mrs Mary Bushiri (Criminal Review 11 of 2021) [2022] MWHC 73 (8 February 2022)

In the matter of a request by the government of the Republic of South Africa to the government of the Republic of Malawi for the extradition of Mr Shepherd Bushiri and Mrs Mary Bushiri (Criminal Review 11 of 2021) [2022] MWHC 73 (8 February 2022)

The High Court held that the CRM was correct in law to require a preliminary inquiry under section 9(1) of the Extradition Act to follow the procedure under Part VIII of the CP & EC, including the general rule of physical presence of witnesses. However, the requirement for physical presence is not inflexible; courts have discretion to allow virtual testimony or to take evidence abroad under the Evidence by Commissions Act where justified. Authentication of documents is governed by section 13 of the Extradition Act. Extradition proceedings are criminal in nature and the Criminal Division of the High Court is the proper forum for review. The CRM must reconsider the manner of receiving...

Citation
[2022] MWHC 73
Parties
Applicant/requesting State: Government of the Republic of South Africa; Requested State: Government of the Republic of Malawi; Fugitive Offender/respondent: Mr. Shepherd Bushiri; Fugitive Offender/respondent: Mrs. Mary Bushiri
Court
High Court of Malawi
Jurisdiction
Malawi
Judgment Date
8 February 2022
Case Number
Criminal Review 11 of 2021
Procedural Posture
Criminal Review (extradition) / High Court Review of Chief Resident Magistrate's Interlocutory Rulings
Outcome
Partial affirmation and variation of subordinate court's decision; directions issued
Legal Topics
Extradition Procedure, Preliminary Inquiry, Authentication of Documents, International Treaty Obligations, Virtual Hearings, Jurisdiction
Source Language
English
Criminal Law Extradition International Law Extradition Procedure Preliminary Inquiry Authentication of Documents International Treaty Obligations Virtual Hearings +1 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 7 Authorities cited 20 Party arguments 2
Sign in to unlock

Parties

Government of the Republic of South Africa

Applicant/requesting State

Government of the Republic of Malawi

Requested State

Mr. Shepherd Bushiri

Fugitive Offender/respondent

Mrs. Mary Bushiri

Fugitive Offender/respondent

Procedural Posture

Criminal Review (extradition) / High Court Review of Chief Resident Magistrate's Interlocutory Rulings

Legal Issues

  1. 1 Whether the Chief Resident Magistrate erred in law by requiring a preliminary inquiry under section 9(1) of the Extradition Act to follow the procedure under Part VIII of the Criminal Procedure and Evidence Code (CP & EC)
  2. 2 Whether the physical presence of witnesses is mandatory for authentication of evidence in extradition proceedings
  3. 3 Whether depositions from the requesting state suffice or witnesses must testify in person

Ratio Decidendi

The High Court held that the CRM was correct in law to require a preliminary inquiry under section 9(1) of the Extradition Act to follow the procedure under Part VIII of the CP & EC, including the general rule of physical presence of witnesses. However, the requirement for physical presence is not inflexible; courts have discretion to allow virtual testimony or to take evidence abroad under the Evidence by Commissions Act where justified. Authentication of documents is governed by section 13 of the Extradition Act. Extradition proceedings are criminal in nature and the Criminal Division of the High Court is the proper forum for review. The CRM must reconsider the manner of receiving...

Court Disposition

Partial affirmation and variation of subordinate court's decision; directions issued

Orders

  • The CRM's decision to conduct a preliminary inquiry under the CP & EC is affirmed.
  • The CRM must reconsider the requirement for physical presence of witnesses, allowing for virtual testimony or evidence by commission where justified.