Director of Public Prosecutions, Johannesburg and Another v Schultz and Others; Director of Public Prosecutions, Bloemfontein v Cholota
Director of Public Prosecutions, Johannesburg and Another v Schultz and Others; Director of Public Prosecutions, Bloemfontein v Cholota Case citation| ZACC 3 is a judgment of the Constitutional Court of South Africa dealing with the power to issue extradition requests and the consequences of an unlawful extradition on the jurisdiction of the South African courts. The court found that the national executive, and not the National Prosecuting Authority, has the power to make extradition requests to foreign countries. Extradition on the basis of a request issued by the NPA was therefore unlawful.
However, the court also found than an irregularity in extradition proceedings does not necessarily mean that South African courts have no jurisdiction; the principle laid down in S v Ebrahim only applies when the circumstances of the irregularity would bring the administration of justice into disrepute. In a case of an extradition that was invalid only because the request had been made by the NPA, the defendant was still subject to trial in South Africa.
Background
Schultz case
In November 2021 a warrant was issued for the arrest of several people alleged to be involved in the theft and unlawful possession of unwrought precious metals. One of the accused was Johnathan Schultz, a South African citizen resident in the United States. When the other accused appeared for trial in May 2022, the prosecutor requested a postponement so that Schultz could be extradited.Schultz applied to the Gauteng Division of the High Court for an order declaring that only the Minister of Justice has the power to issue a request for extradition. The High Court dismissed his application, finding that the NPA was the relevant authority to make extradition requests.
Schultz appealed to the Supreme Court of Appeal. The SCA panel upheld the appeal and ruled that only the Minister of Justice has the power to issue extradition requests. The court held that extradition is a matter involving foreign relation and therefore falls within the domain of the executive, not the prosecuting authority.