South Africa Case Law

Smit v Minister of Justice and Correctional Services and Others (14655/2015)

Smit v Minister of Justice and Correctional Services and Others (14655/2015) [2019] ZAWCHC 102; 2019 (2) SACR 516 (WCC) ; [2019] 4 All SA 542 (WCC) (16 August 2019)

Court

Western Cape High Court, Cape Town

Case number

14655/2015

Judge

Francis, AJ

Section 63 of the Drugs and Drugs Trafficking Act 140 of 1992 constitutes an impermissible delegation of plenary legislative power to the executive, violating the separation of powers and the constitutional requirement for public participation in law-making. All amendments to the Schedules made by the Minister under section 63 are invalid, but the original Schedule promulgated by Parliament remains valid. The applicant has sufficient standing to challenge the constitutionality of section 63 and the Schedules, given the public interest and the direct impact on his rights. Section 5(1)(a) of th…

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• Separation Of Powers
• Delegation Of Legislative Power
• Extradition
• Double Criminality
• Invalidity Of Subordinate Legislation
• Right To Freedom And Security

Patel v National Director of Public Prosecutions: Johannesburg (838/2015)

Patel v National Director of Public Prosecutions: Johannesburg (838/2015) [2016] ZASCA 191; 2017 (1) SACR 456 (SCA) (1 December 2016)

Court

Supreme Court of Appeal

Case number

838/2015

Judges

Maya, Pillay, Swain, Van Der Merwe, Schippers

The Supreme Court of Appeal held that the double criminality rule must be satisfied at the date of the extradition request, not the date of commission of the alleged offence. The wording of the Extradition Act and the Treaty, specifically 'is punishable', refers to the present and not to past conduct. This interpretation is consistent with the purpose of extradition, reciprocity, and international cooperation in criminal matters. The applicant’s reliance on foreign and local cases interpreting the conduct date as decisive was rejected, as those decisions were based on different statutory word…

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• Extradition
• Double Criminality
• Financial Intelligence Centre Act
• Treaty Interpretation
• Sufficiency Of Evidence

Patel v S (A101/2014)

Patel v S (A101/2014) [2015] ZAGPJHC 188; [2015] 4 All SA 382 (GJ); 2016 (2) SACR 141 (GJ) (18 August 2015)

Court

South Gauteng High Court, Johannesburg

Case number

A101/2014

Judges

P Coppin, T D Vilakazi

The court held that the principle of double criminality, as expressed in both the Extradition Act and the RSA-USA Extradition Treaty, does not require that the conduct be an offence in South Africa at the time of its commission in the foreign state, but rather at the time of the extradition request. The relevant provisions of FICA were in force at the time of the request, satisfying the requirement. The certificate from the US Prosecuting Authority, although not using the exact wording of section 10(2), was sufficient in substance and adequately described the offences. The magistrate was corr…

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• Extradition
• Double Criminality
• Extradition Treaty
• Financial Crimes
• Certificate Of Evidence
• Principle Of Speciality

Palazzolo v Minister of Justice and onstitutional Development and Others (7431/2010)

Palazzolo v Minister of Justice and onstitutional Development and Others (7431/2010) [2011] ZAWCHC 89 (14 April 2011)

Court

Western Cape High Court, Cape Town

Case number

7431/2010

Judges

P B Fourie, Yekiso

The court refused to vary its prior extradition judgment and dismissed fresh declaratory and interdictory relief sought by Palazzolo, with costs.

• Extradition
• Double Criminality
• Declaratory Relief
• Obiter Dicta
• Prevention Of Organised Crime Act
• Prevention And Combating Of Corrupt Activities Act

Palazzolo v Minister of Justice and Constitutional Development and Others (4731/2010)

Palazzolo v Minister of Justice and Constitutional Development and Others (4731/2010) [2010] ZAWCHC 422 (14 June 2010)

Court

Western Cape High Court, Cape Town

Case number

4731/2010

Judges

P B Fourie, N J Yekiso

The court held that the Minister, before issuing a notification under section 5(1)(a) of the Extradition Act, is required to form at least a prima facie view that the request shows the person is accused or convicted of an extraditable offence, in accordance with the double criminality rule. The Ministers failed to consider whether the Italian offence had a counterpart in South African law and relied on incorrect information regarding the applicant's alleged convictions. These failures rendered the decisions unlawful administrative actions under PAJA and violated the principle of legality. The…

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• Extradition
• Double Criminality
• Promotion Of Administrative Justice Act
• Principle Of Legality
• Material Error Of Fact

Geuking v President of the Republic of South Africa and Others (CCT35/02)

Geuking v President of the Republic of South Africa and Others (CCT35/02) [2002] ZACC 29; 2003 (3) SA 34 (CC); 2004 (9) BCLR 895 (CC); 2003 (1) SACR 404 (CC) (12 December 2002)

Court

Constitutional Court

Case number

CCT35/02

Judges

Goldstone, Chaskalson, Langa, Kriegler, Madala, Mokgoro, Ngcobo, O'Regan, Sachs, Yacoob

The Constitutional Court held that section 3(2) of the Extradition Act does empower the President to consent to extradition requests from countries without extradition agreements, as this is necessary to give effect to the statute. The President's consent was valid, and the appellant's citizenship status was not a relevant consideration for the policy decision to initiate extradition proceedings. The Court found that section 10(2) of the Act, which requires a magistrate to accept a certificate from a foreign authority as conclusive proof of sufficient evidence for prosecution, is constitution…

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• Extradition Act
• Administrative Action
• Separation Of Powers
• Fair Trial Rights
• Double Criminality
• Judicial Independence