MAKARAU
JP:
The
appellant, a foreign national, was arrested and prosecuted in
Zimbabwe for violating the national laws regulating dealings in arms
and munitions. He was sentenced to a term of imprisonment. Arising
out of the charges and whilst the appellant was still serving his
term of imprisonment in Zimbabwe, the respondent made a formal
request to Zimbabwe, ...
MAKARAU
JP:
The
appellant, a foreign national, was arrested and prosecuted in
Zimbabwe for violating the national laws regulating dealings in arms
and munitions. He was sentenced to a term of imprisonment. Arising
out of the charges and whilst the appellant was still serving his
term of imprisonment in Zimbabwe, the respondent made a formal
request to Zimbabwe, in terms of the Extradition Act [Chapter 9.08]
(“the Act”), for the extradition of the appellant. In its
request, the respondent alleged that the appellant had illicitly
dealt in arms and munitions in Zimbabwe as he was en route to the
respondent where he had conspired to kill the head of that State or
to illegally change the Government of the respondent through
unconstitutional means.
The
request was heard by a Magistrates' Court sitting at Harare. At the
end of the hearing, the court a quo granted the request, prompting
the appellant to note this appeal before us in terms of section 18 of
the Extradition Act [Chapter 9.08].
NATURE
OF APPEAL
The
point was raised and argued in
limine
that an appeal under section 18 of the Extradition Act is an appeal
in the wide sense and this court does not first have to find a
misdirection on the part of the court a quo to substitute its own
decision in the matter. It was further argued that the appeal
connotes a re-hearing of the request and the making of an order that
the lower court should have made in the circumstances of the matter.
Section
18 of
the Extradition Act [Chapter 9.08]
reads:
“(1)
Any person, including the Government of the designated country
concerned, who is aggrieved by an order made in terms of section
seventeen may, within seven days thereafter, appeal against the order
to
the High Court which, may, upon such appeal, make such order in the
matter as it thinks the magistrate ought to have made.
(2)
In addition to the jurisdiction conferred upon it in terms of
subsection (1), in any appeal in terms of that subsection, the High
Court may direct the discharge of the person whose extradition has
been ordered if the High Court is of the opinion that, having regard
to all the circumstances of the case, it would be unjust or
oppressive to extradite such a person -
(a)
By reason of the trivial nature of the offence concerned; or
(b)
By reason of the lapse of time since the commission of the offence
concerned or since the person concerned became unlawfully at large,
as the case may be; or
(c)
Because the accusation against the person concerned is not made in
good faith in the interests of justice; or
(d)
By reason of the state of health or other personal circumstances of
the person concerned.”
The
distinction between 'wide' appeals and appeals in the narrow
sense, as raised in this appeal, is not a novel argument in this
jurisdiction. It is a distinction that is argued in this court
regarding the determination of appeals from the refusal to grant bail
by lower courts and in the Supreme Court regarding appeals from
labour relations adjudicating bodies set up in terms of the Labour
Act.
The
position was, in my view, succinctly clarified by McNALLY JA in
Agricultural
Labour Bureau & Anor v Zimbabwe Agro-Industry Workers Union
1998 (2) ZLR 196 (SC), in the following words:
“Perhaps
one can clarify the position by looking at the widely accepted
classification of appeals as formulated by TROLLIP J in Tickly &
Ors v Johannes NO & Ors 1963 (2) SA 588 (T), and approved by the
Appellate Division in South Africa in S v Mohamed 1977 (2) SA 531 (A)
at 538 and again in what is now KwaZulu-Natal in a case similar on
the facts to the present one, Metal and Allied Workers Union v Min of
Manpower 1983 (3) SA 238 (N) at 242B-D.
The
three classes of appeals, re-stated in the last of these cases, are:
1.
An appeal in the wide sense, ie a complete rehearing of and fresh
determination on the merits of the matter with or without additional
evidence or information;
2.
An appeal in the ordinary strict sense, ie a re-hearing on the merits
but limited to the evidence or information on which the decision
under appeal was given, and in which the only determination is
whether that decision was right or wrong;
3.
A review, in which the question is not whether the decision was
correct or not, but whether those who made it had exercised their
powers honestly and properly.”
On
the basis of the above, I am of the view that an appeal brought in
terms of section 18 of
the Extradition Act is
an appeal in the wide sense.
This
is due to the language used in the section that gives the Appeal
Court wide discretion to substitute its own decision on the same
facts that were before the lower court in addition to granting power
to the court to take into account other factors of a humanitarian
nature. Thus, in my further view, in determining an appeal such as
the one before us, the Appeal Court need not first establish any
misdirection on the part of the lower court and re-hears the request
as argued before, together with any additional considerations of a
humanitarian nature that may be placed before it during the appeal
hearing. The correctness or otherwise of the approach adopted by the
lower court in coming to the conclusion that it did are therefore not
issues before this court.
The
above is the approach we take in determining this appeal.
GROUNDS
OF APPEAL
The
appellant raised three main grounds on appeal why he should not be
extradited to the respondent;
(i)
Firstly, he contended that the lower court erred in holding that the
respondent had established a prima facie case.
(ii)
Secondly, he contended that the court did not specifically address
its mind as to whether Zimbabwe would be violating any of its
international obligations should it extradite the appellant to the
respondent.
(iii)
Finally, he urged this court to take into account his failing health
and to hold that it would be unjust or oppressive to have him
extradited to the respondent.
The
first two grounds of appeal are founded on the provisions of section
17(1) which provides guidelines to lower courts in determining when
to grant an order in favour of the requesting State. The section
provides as follows:
“(1)
Where a person has been brought before a magistrates court in terms
of subsection of section sixteen, the court, if satisfied that -
(a)
The person concerned is the person named in the warrant under which
he was arrested; and
(b)
The extradition is not prohibited in terms of this Act; and
(c)
Either -
(i)
That a prima facie case is established; or
(ii)
In case in which a record of the case has been submitted in terms of
the proviso to paragraph (b) of subsection(1) of section sixteen,
that the record of the case indicates, according to the law of the
designated country concerned, that the person concerned has committed
the offence to which the extradition relates or that he has been
convicted of such offence and is required to be sentenced or to
undergo any sentence therefor in the designated country concerned, as
the case may be;
shall,
subject to section nineteen, order that such person be extradited to
the designated country concerned…,.”
In
casu,
there is no dispute as to the identity of the appellant and the fact
that the warrant of arrest produced by the respondent relates to the
appellant. The first two grounds of appeal arise from whether the
extradition of the appellant to the respondent is prohibited in terms
of the Extradition Act, and, if not, whether a prima facie case has
been established by the evidence submitted by the requesting State.
It
appears to me convenient to deal with the appeal on the basis of the
above three contentions made on behalf of the appellant in the order
in which they appear in the legislation cited above. In other words,
the first inquiry will be whether the extradition of the appellant is
prohibited in terms of the Extradition Act. In my view, once that
issue is determined against the extradition of the appellant that
will mark the end of the inquiry as the three pre-requisites laid out
in section 17 of the Extradition
Act
are cumulative rather than disjunctive.
WHETHER
THE EXTRADITION OF THE APPELLANT IS PROHIBITED IN TERMS OF THE ACT
It
is the appellant's contention that his extradition from Zimbabwe is
prohibited in terms of the Extradition
Act
in that it will conflict with the obligations of Zimbabwe under
various international and regional treaties. In particular, we have
been urged to have regard to the International Covenant on Civil and
Political Rights and to the African Charter on Human and Peoples
Rights, to which Zimbabwe is a State party, as creating those
obligations at both international and regional levels.
Both
instruments do not carry specific non-refouler provisions.
It
is correctly submitted, on behalf of the appellant, that it is in
terms of Article 3 of the United Nations Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment that
specific prohibition against expelling, returning or extraditing a
person to another State where there are substantial grounds for
believing that the person so expelled, returned or extradited would
be in danger of being subjected to torture is provided for.
Zimbabwe
is not yet a party to the convention and has thus not assumed the
obligations imposed by Article 3 of the of the United Nations
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment.
By
not voluntarily assuming the obligations set out in the UN Convention
against torture, Zimbabwe may nevertheless have those obligations
imposed upon it by the application of international customary law as
fully explained in the judgment by PATEL J, the draft of which I have
had sight of and agree with.
It
is the position now that certain human rights may be regarded, by
their content and universal acceptance, as having entered into the
realm of customary law and thus become applicable to nations that may
not have assented to the particular instruments protecting these
rights by virtue of the superiority of international customary law
over all other laws. These rights include the prohibition of slavery,
genocide and torture.
See
MALCOLM N SHAW: International Law 4th
Ed…,.
Having
arrived at the conclusion that Zimbabwe has an obligation not to
extradite any person to a country where there are substantial grounds
for believing that the person so expelled, returned or extradited
would be in danger of being subjected to torture, I will now proceed
to deal with the issue of whether the apprehension by the appellant,
that if extradited to the respondent, he is likely to be tortured, is
well founded.
WHETHER
THERE ARE SUBSTANTIAL GROUNDS FOR BELIEVING THAT THE APPELLANT WILL
BE SUBJECTED TO TORTURE, CRUEL, INHUMAN OR DEGRADING TREATMENT IF
EXTRADITED
The
appellant has sought to rely on the Report presented by Mr Gustavo
Gallon, a Special Representative for Equatorial Guinea to the UN
Commission on Human Rights; a report by the International Bar
Association on a fact finding mission conducted in 2003; a report by
an observer of the International Bar Association on the trial of du
Toit; and a report by Amnesty International on the same trial.
All
these reports were adduced into evidence before the magistrate
conducting the hearing. The appellant also led viva voce evidence
from Mr Andrew Chigovera, former Attorney-General of Zimbabwe and
Commissioner on the African Commission for Human and Peoples'
Rights.
Similar
reports to the ones adduced into evidence in this hearing were
adduced into evidence before NGOEPE JP in South Africa in the matter
of Kaunda
and Others v President of the Republic of South Africa
2004 (5) SA 191 (T). In addition to the report by the International
Bar Association of 2003, the applicants before NGOEPE JP also relied
on reports that had been compiled in 2004 by the Human Rights
Committee of the General Council of the Bar of South Africa and
another report by an Advocate Henning SC, of the office of the
National Director of Public Prosecutions in South Africa, who visited
Equatorial Guinea after the arrest of certain South Africans in
connection with the matter for which the extradition of the appellant
is being sought.
In
treating the evidence adduced in the form of the reports detailed
above, NGOEPE JP was of the view that it did not constitute expert
evidence of the efficacy and fairness of the justice delivery systems
in both Zimbabwe and Equatorial Guinea and he declined to make
declarations based on these reports condemning the justice delivery
systems in both countries.
I
am compelled to agree with the learned judge.
It
is generally accepted that the International Bar Association and
Amnesty International are international bodies of standing. It is
also generally accepted that they have dealt with matters relating to
human rights for a considerable period. Despite the international
standing of the International Bar Association, NGOEPE JP was not
swayed to accept the report of 2003 as constituting expert evidence
on the efficiency and fairness of the justice delivery system in
Equatorial Guinea. The same report was adduced into evidence before
the trial court without any further basis having been laid as to the
authors of the report and their expertise in issues relating to
torture and the legal system of Equatorial Guinea. While the report
may not be false or biased as alleged by the Attorney-General of
Equatorial Guinea, it does not constitute expert evidence before the
court for the purposes of the law.
The
same observations apply to the report by Amnesty International.
In
passing, I note that the reports point a bleak picture of the justice
delivery system in the respondent State, and, if true, then the
apprehension of the appellant that he will not be afforded a fair
trial
are well-founded. It is however my finding that the reports fall
short of affording the court expert evidence on the fairness or
otherwise of trials in the Equatorial Guinea and of the existence of
a consistent pattern of gross, flagrant or mass violations of human
rights in the respondent State.
The
appellant also adduced into evidence a report by Mr Gustavo Gallon, a
Special Representative for Equatorial Guinea to the UN Commission on
Human Rights. The expertise of the UN in Human Rights issues is
beyond dispute. The expertise of Mr Gallon, on Equatorial Guinea, was
however not laid out, and, in any event, the report was produced in
2001, depicting the conditions then. In my view, it can hardly
constitute evidence of the state of things in 2007.
As
indicated above, the appellant led viva
voce
evidence from the former Attorney-General for Zimbabwe and
Commissioner on the African Commission for Human and Peoples'
Rights. His evidence was, in essence, to the effect that when he was
Commissioner with the African Union, he would receive reports similar
to the ones that were adduced into evidence by the appellant. The
contents of these reports did not therefore surprise him.
With
respect, the witness did not testify of any first hand experiences
where the respondent State violated human rights as alleged by the
appellant. His views that the appellant was unlikely to receive a
fair trial were derived from the reports and others that he had
received as Commissioner.
Again,
with respect, while the witness had spent a long time dealing with
human rights issues, his expertise on the human rights record and
history of the respondent State was hardly set out. His knowledge of
the alleged record of the respondent State appears to be limited to
the reports that he read and, in my view, that barely places him
above the court to which such reports have also been made available.
On
the basis of the above, we are therefore unable to hold that we have
sufficient evidence before us that the appellant is at risk of being
subjected to torture if extradited to Equatorial Guinea.
It
appears, further, that while the appellant may have good grounds for
fearing that he stands the risk of being tortured if extradited to
the respondent, his apprehension stems from the reports that I have
detailed above. The history depicted by the reports is, in my view,
to be viewed in light of the concessions made by the respondent's
Attorney General that not only will the respondent appoint a judge
from outside the respondent to try the matter, but will open up the
trial to international observers and will not seek the death penalty
in the event that the appellant is convicted. These may be mere
promises but no evidence was placed before us that the respondent
will not honour such promises. We therefore have no basis, at law,
for not believing the respondent in this regard. The effect of the
concession made by the respondent's Attorney General is to minimize
the risk that the appellant will be subjected to torture if
extradited to the respondent.
PRIMA
FACIE CASE
The
Extradition
Act [Chapter 9.08]
provides, in section 16, that the request for extradition submitted
to the Minister must be accompanied by such evidence as would
constitute a prima facie case in a court of law in Zimbabwe. The law
further provides, in section 17, that the court hearing the request
must order the extradition of the person concerned if it is satisfied
that the two pre-requisites set out above have been met, and, in
addition, that a prima facie case has been established against the
person whose extradition is sought.
It
was contended, on behalf of the appellant, that the respondent had
failed to establish a prima facie case against the appellant.
In
my view, the concept of a prima facie case is one of those legal
concepts that are easier to recognize than to define. The concept
eludes definition not only due to the fact that it deals with
subjective measures of the cogency of evidence presented before a
trier of fact, but also because the term is used loosely in both
civil and criminal proceedings without a distinction having been
attempted.
It
appears to me that in civil cases, our courts have adopted the
attitude that for interim protection by the court in the form of an
interdict pending the determination of some other suit between the
parties, a prima facie case is established once a cause of action is
established even where the chances of the applicant to succeed in
sustaining the cause of action are open to doubt.
See
Bozimo
Trade and Development Co (Pvt) Ltd v First Merchant Bank of Zimbabwe
Ltd & Ors
2000 (1) ZLR 1 (HC); Cooper
v Leslie & Ors
2000 (1) ZLR 14 (HC); Charuma
Blasting & Earthmoving Services (Pvt) Ltd v Njainjai & Ors
2000 (1) ZLR 85 (SC).
That
a prima facie case in civil suits, for the obtaining of interim
protection, is simply the setting out of facts establishing a
possible and plausible claim against the respondent without the
evidence necessary to prove such a claim appears to me clearly from
the following remarks by CHATIKOBO J…, in Sultan
v Fryfern Enterprises (Pvt) Ltd & Anor
2000 (1) ZLR 188 (HC):
“I
have deliberately refrained from making definitive findings of fact
because it may well be that further affidavits (if any are filed for
the return date) or oral evidence may justify a different conclusion.
At this stage I am concerned only with the question whether a prima
facie case has been shown. I am satisfied it has.”
It
then appears to me that a different test is used when a prima facie
case has been established by a plaintiff in a civil trial to avoid
absolution from the instance being granted at the close of his or her
case. The test requires the establishment of more than a cause of
action. Evidence must be adduced to prove the cause of action and
must be so cogent as to enable a court to give judgment on it in
favour of the plaintiff unless it is successfully rebutted.
It
is my view that the test used to establish a cause of action at the
end of the plaintiff's case is the same used to establish a case at
the end of the prosecution case to avoid a discharge of the accused
person. It is the adducing of evidence upon which a court may convict
unless such evidence is rebutted. See Kachipare
v S
1998 (2) ZLR 271 (S). Obviously, the different burdens of proof
applicable in civil and in criminal proceedings apply in establishing
prima facie cases in both proceedings. The test however appears the
same to me.
While
it is accepted that extradition proceedings are not criminal
proceedings per se, it appears to me that the standard of when a
prima facie case has been established, as used in civil proceedings,
is not applicable in extradition proceedings for the main reason that
the powers granted to a magistrate conducting a hearing in terms of
the Extradition Act are similar to the powers of a magistrate
conducting a preparatory examination under the Criminal Procedure and
Evidence Act [Chapter 9:07] (see section 17(4) of the Extradition
Act) - a procedure that is now defunct, having been amended out of
the criminal procedure due to non-use.
I
would hazard to suggest that by specifically granting to magistrates
the powers they enjoyed when conducting the now defunct preparatory
examinations, and, by directing them to “receive evidence in the
same manner,” the legislature intended that the test to be employed
under section 17 of the Extradition Act, as to when a prima facie
case has been established, must be similar to that which was used at
preparatory examinations. I cannot envisage a situation where, having
granted magistrates powers to conduct extradition hearings as if they
were conducting preparatory examination, the legislature intended
them to use tests other than the ones used at such proceedings. If
this was its intention, it would have used specific language to that
effect or would have defined what constitutes a prima facie case for
the purposes of the section.
In
commenting on the test used at a preparatory examination, the author,
REID ROWLAND, in his book: Criminal Procedure in Zimbabwe had this to
say…,:
“At
the end of a PE, the question which the magistrate has to answer is
whether the evidence put before him by the prosecution and the
defence raises a prima facie case against the accused. The magistrate
does not have to be satisfied that he would convict on that evidence.
The standard of proof that the prosecution must satisfy at a PE is
thus a very low one.”
It
thus appears to me that the standard of proof required at the close
of a preparatory examination is somewhat lower that that required at
the close of a State case during a trial. It is trite that at the
close of the prosecution case the trial court must be satisfied that
it has before it evidence upon which it may convict the accused of
the offence charged. The author, REID ROWLAND has specifically opined
that such evidence is not necessary at the close of a preparatory
examination although he has used the term “prima facie case”
without attempting to define the term.
I
would further hazard that a prima facie case, for the purposes of
section 17 of the Extradition Act, is established by evidence tending
to prove the offence and linking the person whose extradition is
sought to the offence. It does not require evidence proving the guilt
of the person concerned of the charged offence.
In
this regard, I am in agreement with the submissions made by counsel
for the appellant that a magistrate can only order the extradition of
a person if such evidence is produced as would justify the committal
for trial of the person if the crime had been committed in Zimbabwe.
Thus,
the question that a court hearing a request to grant an extradition
order has to ask itself at the end of the hearing is whether it has
received such evidence as would, in its opinion, justify putting the
person concerned on trial.
At
the hearing, counsel for
the appellant directed most of his challenges against the
admissibility of certain documentary evidence that was produced by
the respondent. In this regard, he was of the view that such was
secondary evidence and was not admissible in terms of section 32 of
the Extradition Act.
It
is in this regard that I do not agree with the submissions made by
counsel for the appellant.
It
is trite that at a preparatory examination, the rules relating to the
admissibility of evidence are somewhat more relaxed than at trial.
Thus, at a preparatory examination, evidence that would constitute
hearsay evidence at the trial is admissible as affidavits are
generally admissible. Thus, the admissibility of evidence at an
extradition hearing is governed not only in terms of section 32 of
the Extradition Act but also in terms of the Criminal Procedure and
Evidence Act before the amendment.
In
particular, counsel for the appellant has sought to challenge the
admissibility of the statements from the appellant and from Servaans
Nicholas du Toit on the technical grounds that the statement by the
appellant was not freely and voluntarily made while that by Servaans
Nicholas du Toit was not authenticated in terms of section 32 of the
Extradition Act.
In
my view, even if the challenges against these two statements are
sustained, there is still enough evidence establishing a prima facie
case against the appellant. The oral evidence of Detective Chief
Superintendent Madzingo that he recorded a statement from Servaans
Nicholas du Toit in which the appellant was directly implicated
cannot be challenged. The evidence of the Attorney General of the
respondent that his country is in possession of information regarding
the alleged offence and implicating the appellant cannot be
challenged. Further, the statements of agreed facts in the trials of
Mark Thatcher and Jacob Hermanus Albertus Carlse in South Africa did
not require authentication in terms of section 32 of the Extradition
Act as they were not originating from the respondent but from South
Africa. Such statements implicate the appellant in the alleged
offence and are admissible as they would have been admissible at a
preparatory examination in this country.
It
has been argued that Jacob Hermanis Albert Carlse may not be
available to testify on behalf of the respondent in that country.
That,
in my view, is beside the point. At this stage of the inquiry, the
guilt or otherwise of the appellant is not in issue. We do not, in
this hearing, have to be satisfied that there will be evidence upon
which the appellant will be convicted of the offence. The evidence
adduced by the respondent may not be forthcoming or may not be
sufficient to sustain the charges but, in my view, it does establish
a prima
facie
case for the purposes of having the appellant committed for trial if
the offence had been committed in Zimbabwe. As discussed above, the
standard of proof required at this stage is not such as to put the
appellant to his defence during a trial or evidence upon which a
court may convict, but evidence tending to link the appellant to the
alleged offence and to which he has to proffer an answer when
charged.
On
the basis of the above, we are of the view that a prima facie case
has been established against the appellant.
ADDITIONAL
CONSIDERATIONS
As
an Appeal Court, we are enjoined by section 18(2) of the Extradition
Act to determine whether there are any additional considerations upon
which we may bar the extradition of the appellant.
At
the time of the hearing of the inquiry before the court a quo, the
appellant had developed a life threatening hernia that then required
immediate surgery. That was six months ago. It is hoped that in the
time it has taken us to make a determination in this appeal the
condition has been suitably attended to and has consequently reduced
in its threat to the appellant's life.
Additionally,
in this regard, we note and take into account the contents of an
affidavit dated 23 July 2007 and filed before this court. The
affidavit is sworn to by a Doctor Motu who is based at the Malabo
Prison Hospital in Equatorial Guinea. In essence, Dr Motu certifies
that the medical staff at Malabo Prison Hospital and staff at other
hospitals in Malabo are fully competent to carry out hernia
operations.
Without
in any way attempting to downplay the appellant's medical
condition, it is our view that his state of health is not such that,
having regard to all the circumstances of the matter, it would be
unjust or oppressive to extradite him to the respondent.
In
the result, the appeal is dismissed….,.
PATEL
J:
Insofar
as concerns the appellant in
casu,
I am inclined to agree with the Judge President, albeit tentatively,
that the appellant has failed to adduce the evidence necessary to
sustain his appeal on the ground that he would be subjected to
torture in the respondent State. In addition, I fully agree that the
respondent State has established the requisite prima
facie
case against the appellant in terms of section 17(1)(c)(i) of the
Extradition Act [Chapter 9:08]. I am also satisfied that there are no
additional considerations under section 18(2)(d) of the Extradition
Act precluding the appellant's extradition to the respondent State.
In
the result, the appeal must be dismissed.
