Nyoni and Another v Minister of Justice and Constitutional Development and Others (868/2006) [2006] ZANWHC 47 (6 July 2006)

CASE NO. 868/2006

IN

THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

ISAK NYONI 1ST

APPLICANT

MOSES MERE 2ND

APPLICANT

and

THE MINISTER OF JUSTICE & CONSTITUTIONAL

DEVELOPMENT 1ST

RESPONDENT

THE MAGISTRATE OF THE DISTRICT MOLOPO,

MR SERE 2ND

RESPONDENT

DIRECTOR OF PUBLIC PROSECUTIONS, MAFIKENG 3RD

RESPONDENT

THE STATION COMMANDER, MMABATHO POLICE

STATION 4TH

RESPONDENT

___________________

JUDGMENT

MOGOENG JP.

[1] The Applicants have brought this application on an urgent basis for an order in the following terms:

“1. THAT the Rules relating to service provided for in the Rules of this Honourable Court be dispensed with and that the matter be treated as one of urgency in terms of Rule 6(12) of the Rules of this Honourable Court.

2. Setting aside the warrants of arrest and detention annexed to the main application, Annexures “IN1” and “IN2” and ordering the release of the Applicants with immediate effect from the Mmabatho Police cells.

3. That those Respondents opposing this application be ordered to pay the costs.

4. THAT such further and/or alternative relief as this Honourable Court deems just be granted to the Applicants.”

[2] When the matter eventually came before me on 30 June 2006, judgment was reserved. This then is the judgment and the reasons therefor. The background in context is that the Applicants are citizens of the Republic of Botswana. The first Applicant, Isaac Nyoni, is wanted in Botswana for (i) armed robbery committed on 23 April 2003 at the Bank of Baroda in Gaborone where the following amounts were taken P984 157.00, R260.00 and $130.00; and (ii) aiding a prisoner to escape from lawful custody on 17 August 2003. The second Applicant, Moses Moshe Mere, faces charges of (i) unlawful possession of a firearm which took place on 19 June 2004; (ii) unlawful possession of ammunition of war on 19 June 2004; (iii) conspiracy to commit robbery which took place on 21 June 2004; (iv) armed robbery of property to the value of P6 250.00 committed on 22 October 2004; (v) armed robbery of property valued at P20 000.00 committed on 08 August 2005; and (vi) the robbery of which the first Applicant is also charged.

[3] The further allegations are that the Applicants were granted bail in respect of the robbery of the Bank of Baroda. They failed to turn up for trial and this resulted in warrants for their arrest being issued by a Magistrate in Gaborone.

[4] The Applicants are now in custody in South Africa. It is alleged that they are illegal immigrants and they have not denied this. Their contention is that such an allegation is irrelevant to the present application.

[5] On the Applicants’ version, they were arrested on 08 February 2006 by the South African Police. This arrest was without a warrant. At the time, they were informed that they were being arrested for criminal offences which they allegedly committed in Botswana. They were also informed that they were to be extradited to Botswana to stand trial for the alleged offences.

[6] Applicants appeared in the Magistrate’s Court of Molopo on the same day and were remanded in custody. They subsequently appeared in Court on 15 February 2006, 02 March 2006, 22 March 2006 and 13 April 2006. In all their appearances in Court, they were remanded in custody by the Court.

[7] On 13 April 2006, the Prosecutor who was handling the matter in the Molopo District Court, approached a Magistrate in his office. He showed the Magistrate copies of the warrants for the Applicants’ arrest issued by a Magistrate in Gaborone, Botswana. It was on the strength of those warrants that the Magistrate issued warrants for the arrest of the Applicants in this matter.

[8] The latter warrants are essentially to the effect that on 19 June 2004 the Applicants committed the crime of s 7 of the Extradition Act No. 67 of 1962. The Applicants challenge the validity of these warrants on the basis that s 7 does not create an offence. The second reason advanced is that the warrants for the Appellants’ arrest issued in Botswana were not authenticated as required by Article 11 of the Extradition Treaty between the Republics of Botswana and South Africa. The last reason is that s 43 referred to in the Molopo warrants only applies to offences committed within the area of jurisdiction of the Magistrate who issues the warrant. It is for these reasons that the Applicants believe that the warrants are defective and should be set aside and that their detention is unlawful. This unlawfulness in turn, so the argument runs, entitles them to their release. I address these issues below.

[9] According to the Applicants, they were arrested without a warrant. This accords with the Respondents’ version to the effect that the Applicants were arrested without a warrant in terms of s 40(1)(k) of the Criminal Procedure Act (“CPA”) which provides that:

“40. Arrest by peace officer without warrant.− (1) A peace officer may without warrant arrest any person−

. . . . . . .

(k) who has been concerned in or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that he has been concerned in any act committed outside the Republic which, if committed in the Republic, would have been punishable as an offence, and for which he is, under any law relating to extradition or fugitive offenders, liable to be arrested or detained in custody in the Republic.”

[10] A point needs to be made here, that the warrants for the arrest of the Applicants issued on 13 April 2006 were probably superfluous since the Applicants had long been arrested and detained as at the time when the warrants for their arrest were applied for and granted. In my view, s 40(1)(k) above makes adequate provision for the arrest of the Applicants without a warrant. On the Applicants’ own version, they were informed that they were being arrested for alleged criminal offences which were allegedly committed in Botswana. A reasonable complaint had been made or credible information (in the form of warrants for their arrest stating the alleged offences) had been received from Botswana, that they have been concerned in acts committed outside the Republic of South Africa which, if committed in the Republic, would have been punishable as offences.

[11] A related question is whether the Applicants are, under the law relating to extradition or fugitive offences, liable to be arrested or be detained in custody in the Republic for the offences they are to face in Botswana as required by the last portion of s 40(1)(k) above. The answer to this question lies in the definition of an ‘extraditable offence’ as well as an indication from the law relating to extradition as to whether a person who has allegedly committed an extraditable offence is liable to be arrested.

[12] Section 1 of the Extradition Act provides that an extraditable offence:

“means any offence which in terms of the law of the Republic and of the foreign State concerned is punishable with a sentence of imprisonment or other form of deprivation of liberty for a period of six months or more, but excluding any offence under military law which is not also an offence under the ordinary criminal law of the Republic and of such foreign State.”

This means that since the Applicants were apparently facing charges of, inter alia, armed robbery of huge amounts of money and such an offence is punishable with a sentence of imprisonment in excess of six months in our country and in Botswana, the Applicants are facing extraditable offences in Botswana.

[13] This links up well with s 5(1)(b) of the Extradition Act which provides for an arrest for an extraditable offence in the terms set out below:

“(1) Any Magistrate may, irrespective of the whereabouts or suspected whereabouts of the person to be arrested, issue a warrant for the arrest of any person−

(b) upon such information of his or her being a person accused or convicted of an extraditable offence committed within the jurisdiction of a foreign state, as would in the opinion of the Magistrate justify the issue of a warrant for the arrest of such person, had it been alleged that he or she committed an offence in the Republic.” (My emphasis)

[14] I have referred to s 5 of the Extradition Act not because it applies to the arrest and detention of the Applicants in this matter, but because it gives an indication as to which foreign national is, in terms of the law relating to extradition, liable to be arrested or detained in the Republic. Are the Applicants liable to be arrested or detained in custody in the Republic as a result of the alleged commission of these extraditable offences? Well, s 5(1)(b) above clearly provides that a Magistrate may issue a warrant for the arrest of any person accused of an extraditable offence, as would in the opinion of the Magistrate justify the issue of a warrant of arrest. No Magistrate would hesitate to issue a warrant for the arrest and the detention of a person accused of having committed armed robbery. For this reason, I am satisfied that the requirements for the arrest of the Applicants outlined in s (40(1)(k) have been met.

[15] In terms of s 39(3) of the CPA, the effect of any arrest, including the arrest of the Applicants in terms of s 40(1)(k), is ‘that the person arrested shall be in lawful custody until he is lawfully discharged or released from custody’. Consequently, when the Applicants were arrested in terms of s 40(1)(k), they were then lawfully detained until 13 April 2006. During all their previous appearances, the matter was postponed for the purpose of an extradition application. That application was yet to be heard as at 13 April 2006. The validity of the arrest and the detention flowing therefrom have never been in question, not even in this application. The only thing that gave rise to the objection is the issue of the warrants of arrest by Magistrate Molopo marked “IN1” and “IN2”.

[16] What “IN1” and “IN2” were clearly intended to convey is that since the Applicants, who are foreign nationals, were arrested in terms of s 40(1)(k) without warrants, their detention is sought to be extended in terms of s 7 of the Extradition Act. This section provides that:

“7. Warrants for further detention for persons arrested without warrant.−

(1) Any magistrate may issue a warrant for the further detention of any person arrested without warrant under any law of the Republic providing for the arrest without warrant of persons liable to be apprehended under any law relating to extradition.

(2) Such a warrant for the further detention of any person may be issued upon such information of his or her being a person accused or convicted of an extraditable offence committed within the jurisdiction of a foreign State, as would in the opinion of the magistrate justify the issue of a warrant for the arrest of such person, had it been alleged that he or she committed an offence in the Republic.”

Whereas it is correct that s 7 of the Extradition Act does not create an offence, subsection 2 thereof does state that warrants for the further detention is for the likes of the Applicants who are accused of an extraditable offence committed within the jurisdiction of a foreign State. This is explained by the reference in “IN1” and “IN2” to s 7 of the Extradition Act where the offence should have been inserted. It is the substance and not the form that matters. This is not a case where the Applicants have been arrested and detained in terms of a warrant that does not disclose the offence, with the result that the suspects do not know why they were arrested. The police told them why they were arrested and the copies of the warrants for their arrest issued in Botswana are available and were, according to their legal representative in the Magistrate’s Court, available on 13 April 2006.

[17] There is a purpose behind the requirement that the Magistrate authorises the further detention of a suspect who was arrested without a warrant issued by a judicial officer. It is to avoid indefinite detentions without appearing in Court, which could deny the detainees the opportunity to lodge whatever complaints they might have, with a judicial officer. That need does not arise in this matter. The Applicants appeared in Court on numerous occasions and their further detention was authorised by a Court of law. Any complaints they might have had, which the Magistrate’s extension of a detention without a warrant is meant to afford them the opportunity to raise, could have been stated during the previous Court appearances. The warrants which form the subject-matter of this discussion, may have been unnecessary for the purpose of regularising the detention of the Applicants. The Magistrate had been extending the detention of the Applicants every time he remanded them in custody. I can find no reason for the setting aside of the warrants, although I must hasten to say that they do not appear to have been strictly necessary.

[18] Even if the warrants were to be set aside, it would not follow that the Applicants would be entitled to a release. The Applicants should, in terms of the Extradition agreement between the two countries, and the request for extradition which, according to the Prosecuting Authority of Botswana, is on the verge of being finalised, the serious offences they allegedly committed as well as the lawful arrest and detention effected on them, be detained pending the finalisation of the extradition application which is to be heard on 11 July 2006.

[19] The Magistrate should have completed appropriate forms for the issuing of the warrants for the detention of the Applicants. In the absence of suitable forms, the warrant should have been written out in a manner that would clearly capture all the information it is supposed to contain in terms of s 7 of the Extradition Act. The failure to do so is, however, not fatal. Accordingly, the application stands to be dismissed. I deal with the provisions of Article 11 of the Extradition Treaty and s 43 of the CPA below.

[20] A submission was made on behalf of the Applicants that the provisions of Article 11(a) of the Extradition Treaty were not complied with because the warrants for the arrest of the Applicants issued in Botswana, which are annexed to the Answering Affidavit, are neither original documents nor are they certified. Article 11(a) of the Extradition Treaty between Botswana and South Africa, it provides that:

“The authorities of the requested Party shall admit as evidence in any proceedings for extradition any deposition, statement on oath or affirmation, any record of a conviction, any warrant, and a copy or translation of the aforesaid documents, if it is authenticated –

(a) in the case of a warrant, by being signed, or in the case of any other original document by being certified, by a judge, magistrate or other competent officer of the requesting Party or, in the case of a copy or translation, by being certified to be a true copy or translation of the original;” (My emphasis)

[21] It is correct that copies and not original warrants for the arrest of the Applicants, from Botswana, are annexed to the papers. The Applicants cannot, therefore, be faulted for believing that copies and not original warrants were shown to the Magistrates before “IN1” and “IN2” were issued. The copies are also not certified as allegedly required by Article 11(a). The problem, though, is that Article 11(a) deals with the admissibility of documents as evidence in the proceedings for extradition. The proceedings in the Magistrate’s Court and here have got very little, if anything, to do with extradition. They are about the validity of warrants of arrest issued by Magistrate Molopo and not the requesting Party. The warrants for the arrest of the Applicants issued by a Magistrate in Botswana, were not intended to be admitted as evidence in the proceedings before the Magistrate. Article 11(a) does not, therefore, apply to this matter.

[22] The validity of the warrants has also been challenged on the basis that s 43, which is referred to in those warrants, does not apply to their situation. It is correct that s 43 of the CPA refers to warrants for the arrest relating to an offence allegedly committed in the area over which the Magistrate issuing the warrant has jurisdiction. A form ordinarily used for such warrants was for some reason used for the purpose of s 7 of the Extradition Act as well. But the use of such a form cannot ipso facto render the warrants fatally defective. Section 43 is there because the incorrect form was used. But the substance makes it clear what the warrants are about. Urgency is considered below.

[23] The liberty of a person is a fundamental human right. The Applicants brought an urgent application for their release. They submitted that they launched the application as soon as the transcript of the proceedings before the Magistrate, which was essential to the application, became available. I accept their explanation. I am satisfied therefore, that this application is urgent and it is treated as such. I will now deal with costs.

[24] Both parties are funded by the State through the budget of the same Department. The Applicants are assisted by the Legal Aid Board whereas the Respondents are assisted by the State Attorney representing the Magistrate whose order is challenged. These units resort under the Department of Justice and Constitutional Development. In the exercise of my discretion, I have decided that each party is to pay his/her own costs.

[25] In the result, I make the following order:

The application is dismissed; and

Each party is to pay his or her own costs.

______

M.T.R.

MOGOENG

JUDGE

PRESIDENT OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 30 JUNE 2006

DATE OF JUDGMENT : 06 JULY 2006

COUNSEL FOR APPLICANTS : ADV L.C.J. MAREE SC

COUNSEL FOR RESPONDENTS : DR S.J. SENATLE

ATTORNEYS FOR APPLICANTS : MAFIKENG JUSTICE CENTRE, LEGAL AID BOARD

ATTORNEYS FOR 1ST, 2ND & 4TH RESPONDENTS :

STATE ATTORNEY

ATTORNEYS FOR 3RD RESPONDENT : DIRECTOR OF PUBLIC PROSECUTIONS