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Timothy Gordon Marsland vs. The Additional District Court Magistrate, Kempton Park and Another - (10 Feb 2021)

For an arrest to be effected in terms of Section 5(1)(b) of Extradition Act, 1962, it was not necessary for the Minister to issue a notice in terms of Section 5(1)(a) of Act

Criminal

The core issue for determination in present appeal is whether a provisional arrest under Section 5(1)(b) of the Extradition Act, 1962 had lapsed, for the reason that, the Minister of Justice (the Minister) neither personally received the relevant extradition request nor issued a notice in terms of Section 5(1)(a) of the Act, within 30 days of the arrest.

The Appellant, Mr. Timothy Gordon Marsland, who has dual citizenship in South Africa and the United Kingdom, and residency in Botswana was arrested at International Airport whilst en route to Germany on a Red Notice request issued by Interpol. In the Red Notice, it was alleged that, the Appellant had laundered funds in the sum of BWP 200 000 from Botswana Public Office Fund whilst he was a director of Capital Management Botswana, which was entrusted to manage and invest these funds. He was also accused of attempting to obtain, by false pretences, an amount of BPW71 000 000 from the First National Bank of Botswana. The Appellant’s application for bail was refused by the first Respondent.

The prosecutor, the second Respondent, thereafter handed the first Respondent with three documents, namely the Note Verbale from Botswana dated 17 July 2019, requesting the extradition of the Appellant; a letter from the Department of International Relations and Co-operation (DIRCO), dated 19 July 2019, addressed to the Director General, Department of Justice and Constitutional Development (the Department) enclosing the Note Verbale; and a letter from the office of the Director General of the Department, dated 12 August 2019, addressed to the National Director of Public Prosecutions (the NDPP) enclosing the Note Verbale as received from DIRCO.

When the prosecutor made an application for the matter to be transferred to another Court so that an enquiry in terms of Section 10 of the Extradition Act, 1962 could be held, the Appellant opposed the application on the ground that no extradition application was pending before any court in South Africa. The first Respondent held otherwise and dismissed that application. The Appellant launched review proceedings in the High Court, challenging the first respondent’s decision. That application was also dismissed by the High Court.

Direct receipt of formal extradition documentation under Section 4(1) of Act by Minister of Justice is not required. The Note Verbale, which was in writing, constituted a request by Botswana for the extradition of the Appellant, as envisaged in the Act and the Protocol. As the Note Verbale was received by DIRCO, and forwarded to the Department, this meant that the request was transmitted through the diplomatic channel and received by the Ministry of Justice as required by Article 6 of the Protocol. The SCA further held that, as the Appellant’s arrest was effected in terms of Section 5(1)(b) of Act, it was not necessary for the Minister to issue a notice in terms of Section 5(1)(a) of Act. The appeal was therefore dismissed.

Tags : EXTRADITION   INTERPRETATION   ARTICLE  

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