Application
for discharge from extradition
MAFUSIRE
J:
[1] This
was an application for discharge from extradition in terms of the
Extradition Act, [Cap
9:08].
The background was quite colourful.
[2] In
the month of November 2017 Zimbabwe experienced seismic political
developments. For weeks on end they dominated news headlines around
the globe. In simple terms, there was a change of political
leadership in central Government. Sages and analysts have wondered,
and still do, whether since the army was involved, and since the
change did not come about through the ballot box, was it a coup
d'état
or not?
[3] Events
unfolded this way. In November the then sitting President of the
Republic, Robert Gabriel Mugabe, resigned. He had been head of
Government for an uninterrupted thirty seven years since Zimbabwe's
independence from Britain in 1980, first as Prime Minister, and later
on as Executive President.
[4] For
much of those thirty seven years, the economy was on a tailspin.
Concomitantly, everything else was in free fall. Among other things,
democracy and good governance disappeared. Corruption became endemic.
Law and order was scarce. Rule by
law replaced the rule of
law.
[5] From
13 November 2017 the army stepped in. The Zimbabwe Defence Forces
launched an exercise that they termed 'Operation Restore Legacy'.
Among other things, military tanks roared out of the barracks. They
were stationed at strategic positions. These included the then
President's private residence; his official presidential offices;
the armoury division of the Zimbabwe Republic Police; central
Government offices that are situate very close to the Constitutional
Court; and so on.
[6] Following
intense negotiations over a number of days, and some momentous events
elsewhere; such as multitudes pouring into the streets and gathering
in open spaces in solidarity with the army; preparations by the
Zimbabwean Parliament to impeach the President allegedly for
abrogating the Constitution; expulsion from the ruling Zimbabwe
African National Union-Patriotic Front [ZANU–PF] party of the
President's wife, Grace, and several of her followers or
supporters; the former President of Zambia, Kenneth Kaunda, jetting
into the country; the President finally agreed to step down. His
former Vice-President, Emmerson Dambudzo Munangagwa, whom he had
dramatically dismissed a few days earlier and had fled the country to
seek refuge in South Africa, was flown back to be sworn in by the
Chief Justice of Zimbabwe, Luke Malaba, as the next President.
[7] As
all that was happening, the applicants were languishing in remand
prison at Chiredzi, pending their extradition to South Africa for
trial on charges of murder and robbery in aggravating circumstances.
The extradition order had been issued on 6 June 2017 by the
Magistrate's Court at Chiredzi. This followed a formal application
by the prosecution authorities of the Republic of South Africa.
Evidence placed before the Magistrate's Court in support of the
extradition established that the applicants, who were employed as
security guards at certain business premises in the Limpopo Province
in that country, had brutally assaulted and killed their employer.
They had stolen some cash and two cell phones. The evidence was said
to include footages downloaded from CCTV cameras.
[8] The
application for discharge from extradition was based on the fact that
it was more than two months after the extradition order had been
granted and that none of the authorities from the two countries had
done anything towards the actual hand-over-take-over of the
applicants in furtherance of the extradition order.
[9] In
terms of section 17 of the Extradition Act, where the Magistrate's
Court is satisfied that the requirements for extradition have been
satisfied, it can order that the suspect be extradited to the
designated country concerned, and that pending such extradition, he
be committed to custody, or admitted to bail, as the court thinks
fit. In
casu,
the applicants had not been admitted to bail. They were in custody.
In terms of the Extradition [Designated Countries] Order, 1980, SI
133 of 1990, South Africa is one of the designated countries with
which Zimbabwe has an extradition agreement.
[10] In
terms of section 20 of the Extradition Act, as soon as the suspect
may be extradited, the Minister [of Home Affairs] shall notify the
appropriate authority of the designated country concerned of the date
on, and the place at, which the suspect will be handed over.
[11] Section
33 of the Act empowers any person who is still in custody awaiting
extradition, two months after the expiry of the date on which he
could have been extradited, to apply for his discharge from custody.
When considering such an application, the court has to satisfy itself
that reasonable notice was given to the Minister. If so satisfied the
court shall
order that the applicant be discharged forthwith,
unless good cause to the contrary is shown.
[12] The
actual wording of section 33 aforesaid is as follows:
“33
Discharge from extradition
[1]
If any person in custody awaiting his extradition in terms of this
Act is still in custody after the expiry of a period of two months
beginning with the first day on which he could in terms of this Act
have been extradited, he may apply to the High Court for his
discharge from custody.
[2]
If upon application made in terms of subsection (1) the High Court is
satisfied that reasonable notice of the proposed application has
been given to the Minister it shall, unless good cause to the
contrary is shown, order that the applicant be forthwith
discharged.”
[13] Thus,
for a suspect to be discharged from extradition, it must be shown:
(a)
that there is an extradition order;
(b)
that the suspect is in custody awaiting extradition;
(c)
that two or more months must have expired since the extradition order
could have been actioned;
(d)
that an application for discharge has been lodged with the court;
(e)
that reasonable notice of the application was given to the Minister
[of Home Affairs];
(f)
that there is no good cause militating against the discharge.
[14] If
the above conditions exist, the court has no discretion but to grant
the discharge order.
[15] In
casu,
the application for discharge was filed on 19 January 2018. That was
more than seven months after the extradition order. The Extradition
Act does not specify how soon after such an order has been granted
the actual extradition should take place. Section 20 simply says as
soon as the person may be extradited.
[16] The
applicants' notice to the Minister was by way of a letter dated 23
November 2017 from their legal practitioners. That was more than five
months after the extradition order had been granted. The letter read
as follows:
“RE
NOTICE
OF INTENDED APPLICATION FOR DISCHARGE FROM EXTRADITION ON
[sic]
PRINCE
CHANDAWANDE AND SIMBA CHARUMA MUTIZA IN TERMS OF SECTION 33(2) OF THE
EXTRADITION ACT
We
refer your attention to the above matter. We represent Mr.
Chindawande and Mr. Charuma. Kindly note our interest herein.
The
above duo appeared at Chiredzi Magistrates Court for their
extradition upon request by the South African Government. On the 6th
of June 2017, the presiding Magistrate granted the application for
the extradition of the duo. The two have been in custody from the 6th
of June 2017 to date awaiting their extradition. No efforts have been
made by the South African Government or by the State to facilitate
the duo's extradition.
As
a result of the above delay, the duo is entitled in terms of the
provisions of section 33(1) of the Extradition Act to approach the
High Court for their discharge.
This
letter therefore serves as notice to your good office of the intended
application by the duo.”
[17] That
a reasonable notice of the intended application was given to the
Minister was not in issue. The State conceded it. What was in issue
was whether the court could take judicial notice of the upheaval in
central Government, as narrated above, and accept it as the reason
for the Ministry's inaction, and therefore take it as the 'good
cause' contemplated by section 33 of the Extradition Act.
[18] The
State argued that the upheaval rendered the Government dysfunctional
for the period that the army was in control. It was argued that
before the military operation, the Zimbabwe Republic Police had
become so corrupt that it had practically abdicated its
constitutional mandate. The police were said to have been only
concentrating on chasing after members of the public, particularly
motorists at road blocks and other check points, to extort money from
them. A part of the State's response to the application read as
follows:
“In
recent days, our local newspapers carried a headline wherein the
Minister of Home Affairs apologised that the police force had been
captured to look for money from the public rather than concentrate on
their duties. Consequently, some of the important duties of the force
were neglected. This is evident from the delay that was occasioned in
the extradition of the applicants.”
[19] The
State further wrote:
“At
the time the applicants filed their notice of intention to make this
application, the court can take judicial notice of the fact that the
country was undergoing operation restore legacy. There was no Cabinet
and no Minister responsible for running the country. The Ministers
were only appointed sometime in December 2017. This has had adverse
effects on the operations of the police and contributing to further
delays in the accused persons' extradition.”
[20] Filed
together with the State's submissions were two letters dated 24
January 2017
[evidently a typing mistake] and 8 February 2018. The first was from
the Permanent Secretary in the Ministry of Home Affairs to the Acting
Commissioner General of Police. It advised of the extradition order
and gave authority for the police to communicate with the South
African authorities, through Interpol, for the hand-over-take-over of
the applicants. The second letter, whose signature page was not
attached, seemed to be from some police department, but was also
addressed to the Acting Commissioner General at Police General
Headquarters, for the attention of the Finance Director. It also
advised of the extradition order and of the names of the police
details who had been assigned to arrange for the collection of the
applicants from remand prison at Chiredzi on 5 March 2018. On 7 March
2018 they would take the applicants to the Beit bridge Border post.
[21]
Mr Mafa,
for the applicants, argued that the court can deny discharge only if
satisfied that the Ministry of Home Affairs had not been given
sufficient notice, or where the State has shown good cause why the
applicants should not be released. He relied on the case of Ncube
& Anor v Minister of Home Affairs
where, despite the urgency of the matter being impressed upon them by
their Zimbabwean counterparts, the South African authorities
practically did nothing for six months after the extradition order
had been granted. CHEDA J, granting the application for discharge,
said:
“These
courts hold individuals' rights to liberty in very high regard. It
has been said on numerous occasions that the general principle in
this regard is that the courts should always lean in favour of the
liberation of an individual unless it is shown that such liberation
will frustrate the proper administration of justice.”
[22] Mr
Chikwati,
for the State, argued that the combination of the political turmoil
referred to above, and the renewed efforts by the Zimbabwean
authorities to handover the applicants to South Africa, amounted to
such 'good cause' as to disqualify the applicants from discharge.
[23] The
Ncube
case above is not quite in point. Therein, it was the South African
authorities that were lethargic. The Zimbabwean authorities had been
quite vigilant. But in extradition matters, it takes two to tango.
Both the requesting country and the host nation have to play ball if
extradition is to succeed. In that case, the applicants applied for
discharge six months later after no hand-over-take-over had been
done. It was granted.
[24] In
casu,
the position was worse. When the applicants gave notice of their
intention to apply for discharge five months after the extradition
order [the actual application being launched seven months later],
neither the Zimbabwean authorities, nor their South African
counterparts, had done anything towards implementing the order.
[25] To
compound the situation further, in court, there were only submissions
from the lawyer on what might
have caused the delay. Nothing factual was placed before me. No
affidavits, or even unsworn statements from any of the two
authorities, were filed to explain the delay. Instead, as reasons for
the delay, I was being urged to take judicial notice of some internal
factional turmoil within the ruling ZANU [PF] party, even though it
did affect the entire country. But I disagree that such turmoil was
to the extent painted by the State. Among other things, there was
always a Minister of Home Affairs even during the turbulent days.
[26] In
section 33 of the Extradition Act, the Legislature deliberately and
wisely left open the question what constitutes 'good cause'. It
is up to the court to use its judicial discretion to decide on a case
by case basis. It is not practical, or even desirable, to prescribe
what should constitute 'good cause'. The question can only be
answered by a consideration of the broad and general principles
applicable to the exercise of judicial discretion.
[27] The
court should strive to strike a balance between giving efficacy to
extradition treaties or agreements, and an accused person's
fundamental right to freedom if he has not yet been convicted of an
offence. Recently, in Moyo
v S,
in relation to an application for bail pending extradition, I said:
“Undoubtedly,
there are obligations thrust on State parties to extradition
agreements or treaties to make such instruments effectual by handing
over cross-border criminals to thwart their designs to escape justice
for crimes committed by them in one country and taking refuge in
another. John van der Berg: Bail
– A Practitioner's Guide,
3rd
ed., Juta, at pp 287 – 288, says a [judicial officer] must exercise
his power to grant bail with extreme caution in a manner that would
not conflict with treaty obligations between the foreign State and
the custodian one.”
[28] In
the instant case, I granted the application for discharge at the
close of submissions. I did not regard the alleged endemic corruption
within the Zimbabwe Republic Police or the military's 'Operation
Restore Legacy' as such good cause as contemplated by section 33 of
the Extradition Act. The Ministry of Home Affairs' inaction for
five to seven months cannot be sufficient excuse where the liberty of
an individual is concerned. The Minister might himself have been
under some discomposure by reason of the factional combat within his
own political party, but the Permanent Secretary, and the entire
bureaucracy under him, had been in office. Only after the applicants
had actually launched the application did the Permanent Secretary
purport to swing into action.
[29] Furthermore,
not only were the applicants not facing any criminal charges locally,
but also the South African authorities themselves had remained mum
ever since their application for extradition had been granted. The
crime was allegedly committed in June 2016. The extradition order was
granted exactly a year later. More than seven months later, the
requesting country had made no follow-up. It is because of such
lackadaisical, easy-going, indifferent and laidback approach to
Government business that such laws as section 33 of the Extradition
Act are promulgated.
[30] The
order that I granted read:
“1.
The first and second applicants be and are hereby discharged from
custody pending extradition to South Africa.
2.
The Officer in Charge, Masvingo Remand Prison, be and is hereby
directed to release the first and second applicants from custody
forthwith upon being served with a copy of this Order.”
9
March 2018
Mutendi,
Mudisi & Shumba,
legal practitioners for the applicant
National
Prosecuting Authority,
legal practitioners for the respondent
1.
2003 [1] ZLR 445 [H]
2.
At p 450C – D
3.
HMA20-18
