Schultz vs. Minister of Justice and Correctional Services and Others

South Africa

23.05.2024

Civil

Minister is central to the administration and implementation of the Extradition Act and the decision-making power in respect of all extradition requests vests in him

The crisp issue in the appeal was whether the power to request the extradition of a person from the United States of America (the US) to stand trial in the Republic of South Africa (the Republic/ South Africa) vests in the executive authority of the Minister of Justice and Constitutional Development (the Minister), or whether it vests in the National Prosecuting Authority (the NPA). The high court held that the authority to make an extradition request from the US vested in the NPA and not in the Minister. The decision came to the SCA on appeal with leave of the high court.

The real nub of the issue is the demarcation of functions between the NPA and the Minister. The line is drawn between the NPA’s power to prosecute and to do things necessarily incidental thereto, on the one hand, and the power of the executive to act in matters involving foreign affairs, on the other. In its role as the prosecuting authority, the NPA has the important function of determining who is to be prosecuted and what the charges are to be. The Minister has no role or power in the exercise of this prosecutorial function. However, if an identified accused is in a foreign State, this triggers the engagement of executive authority, as the NPA must seek assistance from the executive to make the extradition request to the foreign State.

The role of the NPA in the outgoing extradition process does not stretch to dictating to the Minister how to exercise this power, as this would be destructive of the separation of powers. This demarcation of powers and functions between the NPA and the Minister does not impinge on the NPA’s prosecutorial powers. This is because the principle of legality defines the ambit of the Minister’s lawful powers. While he has the power to decide whether and when to make an outgoing extradition request, he cannot do so in a manner that undermines prosecutorial independence. Whether he has acted within the realms of his authority will depend on the circumstances of the extradition request in question in any given case.

The Minister is central to the administration and implementation of the Extradition Act and the decision-making power in respect of all extradition requests vests in him. The reciprocal obligations that arise with extradition are to be dealt with by the Minister on behalf of the Republic. This not only applies to incoming extradition requests, as expressly provided for in the Extradition Act, but also, by implication, to outgoing requests to the US.

Tags : Request Extradition Power

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