South Africa Case Law

S v Mokhesi and Others (45/2021)

S v Mokhesi and Others (45/2021) [2025] ZAFSHC 183; 2025 (2) SACR 182 (FB) (13 June 2025)

Court

Free State High Court, Bloemfontein

Case number

45/2021

Judge

Loubser

The court held that none of the six questions advanced by the State constituted valid questions of law as required by section 319 of the Criminal Procedure Act. Most were factual in nature or disguised as questions of law. The extradition request for accused 17 was invalid as it was not made by the Minister of Justice and Correctional Services, in line with the Schultz precedent. The State was aware of the Schultz decision prior to the extradition and did not act to correct the request. Furthermore, the State's application was not competent as there was no acquittal, only a finding of lack of…

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• Extradition
• Jurisdiction
• Reservation Of Questions Of Law
• Special Plea
• Authority Of Precedent

S v Mokhesi and 17 Others (45/2021)

S v Mokhesi and 17 Others (45/2021) [2025] ZAFSHC 164 (3 June 2025)

Court

Free State High Court, Bloemfontein

Case number

45/2021

Judge

Loubser

The court found that the extradition of Ms Cholota from the United States of America to South Africa was unlawful because the request for extradition was made by the National Prosecuting Authority and not by the Minister of Justice, as required by law and confirmed by the Supreme Court of Appeal in Schultz. The involvement of the Department of International Relations and Co-ordination was deemed merely administrative and did not satisfy the requirement for executive authority. As a result, the court held that it lacked jurisdiction to try Ms Cholota on the offences charged, and she was ordere…

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• Extradition
• Jurisdiction Of Criminal Courts
• Doctrine Of Legality
• International Law Compliance
• Special Plea
• Executive Authority In Extradition

Britton v Minister of Justice and Correctional Services and Others (548/2023)

Britton v Minister of Justice and Correctional Services and Others (548/2023) [2024] ZASCA 148; 2025 (1) SACR 95 (SCA) (31 October 2024)

Court

Supreme Court of Appeal

Case number

548/2023

Judges

Zondi, Nicholls, Kgoele, Hendricks, Masipa

The SCA held that the Constitutional Court’s invalidation of section 5(1)(a) of the Extradition Act was prospective only, so Britton’s earlier arrest remained valid.

• Extradition Act 67 Of 1962
• Retrospective Invalidity
• Constitutional Review
• Arrest Warrant
• Prospective Effect Of Judgments
• Extradition

Malone v Government of the United Kingdom of Great Britain and Northern Ireland and Another (D5778/2020)

Malone v Government of the United Kingdom of Great Britain and Northern Ireland and Another (D5778/2020) [2024] ZAKZDHC 3; 2024 (2) SACR 341 (KZD) (26 January 2024)

Court

Kwazulu-Natal High Court, Durban

Case number

D5778/2020

Judge

Veerasamy AJ

The court held that section 6 of the Foreign States Immunities Act is not limited to actual physical bodily injury but extends to all injuries personally suffered, including deprivation of liberty, contumelia, and discomfort. The actio iniuriarum encompasses harm to personality interests, and deprivation of liberty implicates corpus, dignitas, and fama. The protection afforded by sovereign immunity cannot insulate alleged wrongful conduct that impairs constitutional rights. The plaintiff's claim for legal costs constitutes compensation for pure economic loss and falls within the ambit of sect…

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• Foreign State Immunity
• Personal Injury
• Unlawful Detention
• Damages
• Extradition
• Constitutional Rights

S v Aliyu (A12/2023)

S v Aliyu (A12/2023) [2023] ZAGPJHC 697 (14 June 2023)

Court

South Gauteng High Court, Johannesburg

Case number

A12/2023

Judge

Johnson

The High Court upheld the State’s bail appeal, finding the magistrate misdirected himself and setting aside bail pending extradition proceedings.

• Bail Appeal
• Extradition
• Flight Risk
• Judicial Misdirection
• Criminal Procedure Act
• Bail-appeal

Magudumana v Director of Public Prosecutions, Free State and Others (2484/2023)

Magudumana v Director of Public Prosecutions, Free State and Others (2484/2023) [2023] ZAFSHC 223 (5 June 2023)

Court

Free State High Court, Bloemfontein

Case number

2484/2023

Judge

PJ Loubser

The court found that, although disguised extraditions are unlawful and would preclude South African courts from exercising jurisdiction, the facts as presented by the respondents must be accepted due to material disputes and the absence of oral evidence. The respondents' version established that the applicant was declared a prohibited immigrant by Tanzanian authorities and deported in accordance with Tanzanian law, with South African officials only facilitating her return. Crucially, the applicant did not resist or protest her removal and expressed a desire to return to South Africa to be wit…

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• Extradition
• Deportation
• Jurisdiction
• Consent To Removal
• International Law
• Urgent Application Procedure

Spagni v The Director of Public Prosecutions, Western Cape and Others (455/2022)

Spagni v The Director of Public Prosecutions, Western Cape and Others (455/2022) [2023] ZASCA 24 (13 March 2023)

Court

Supreme Court of Appeal

Case number

455/2022

Judges

Dambuza, Mabindla-Boqwana, Mjali, Chetty, Siwendu

The appeal was dismissed as moot because the appellant, Riccardo Spagni, had voluntarily and knowingly waived his extradition rights in the USA and returned to South Africa for the continuation of his trial. The court found that there was no longer a live controversy between the parties, and any order declaring the extradition request invalid would have no practical effect. The appellant was fully aware of his rights and the charges against him, and his waiver was unequivocal. The court exercised its discretion not to entertain the merits of the appeal, as the interests of justice did not req…

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• Extradition
• Mootness
• Authority Of Prosecuting Authority
• Waiver Of Rights
• Jurisdiction
• Public Interest

Schultz v Minister of Justice and Correctional Services and Others (2022/002804)

Schultz v Minister of Justice and Correctional Services and Others (2022/002804) [2022] ZAGPPHC 1001; 2023 (2) SACR 145 (GP) (21 November 2022)

Court

North Gauteng High Court, Pretoria

Case number

2022/002804

Judge

N Janse Van Nieuwenhuizen

The court held that the prosecuting authority, not the Minister, is the authorised body to decide whether to request the applicant's extradition from the USA. The Minister's role is administrative and limited to facilitating the transmission of requests through diplomatic channels. There is no legislative provision obliging the Director General or Minister to consider representations from the applicant prior to making an extradition request. The relief sought by the applicant, both in terms of the right to make representations and the assertion that only the Minister may submit an extradition…

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• Extradition
• Separation Of Powers
• Ministerial Discretion
• Prosecuting Authority Powers
• International Treaties

Director of Public Prosecutions, Western Cape v Mhlanga N.O. and Another; Tucker v Director of Public Prosecutions, Western Cape (19434/17; A37/18)

Director of Public Prosecutions, Western Cape v Mhlanga N.O. and Another; Tucker v Director of Public Prosecutions, Western Cape (19434/17; A37/18) [2022] ZAWCHC 184; [2022] 4 All SA 332 (WCC); 2023 (1) SACR 245 (WCC) (16 September 2022)

Court

Western Cape High Court, Cape Town

Case number

19434/17; A37/18

Judges

ML Sher, MI Samela

The High Court held that the magistrate had no power, either at common law or under statute, to reconsider or refer the extradition order for review under s 304(4) of the Criminal Procedure Act, as extradition proceedings are not criminal trials and the magistrate was functus officio after making the 2017 order. The remittal order only allowed the magistrate to receive evidence on media coverage and discriminatory features of British law for the Minister's consideration, not to revisit extraditability or admit new challenges. The magistrate's judgment and referral were arbitrary, vitiated by…

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• Extradition
• Review Of Magistrate Decision
• Bail Pending Extradition
• Principle Of Legality
• Particularity Of Charges

Republic of Mozambique v Forum De Monitoria Do Orcamento and Others (40441/2021)

Republic of Mozambique v Forum De Monitoria Do Orcamento and Others (40441/2021) [2022] ZAGPJHC 495 (27 July 2022)

Court

South Gauteng High Court, Johannesburg

Case number

40441/2021

Judge

Victor

The High Court refused Mozambique leave to appeal against an extradition ruling. It found no reasonable prospects of success or other compelling reason under section 17(1)(a).

• Extradition
• Judicial Review
• Constitutional Invalidity
• Leave To Appeal
• Superior Courts Act
• Leave-to-appeal