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IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO: 1477/2018

In the matter between:

AUGUSTINUS PETRUS MARIA KOUWENHOVEN                                               Applicant

v

THE MINISTER OF POLICE                                                                       First Respondent

THE DIRECTOR OF PUBLIC PROSECUTIONS:

WESTERN CAPE                                                                                  Second Respondent

THE MINISTER OF JUSTICE AND

CORRECTIONAL SERVICES                                                                   Third Respondent

THE MAGISTRATE: PRETORIA                                                            Fourth Respondent

THE ADDITIONAL MAGISTRATE: CAPE TOWN                                      Fifth Respondent

 

Coram: Fortuin et Cloete JJ

Heard: 30 October 2019

Delivered: 15 November 2019

JUDGMENT IN APPLICATION FOR LEAVE TO APPEAL

 

CLOETE J (FORTUIN J concurring):

[1] The applicant’s notice of application for leave to appeal is divided into two broad categories. Part A deals with the grounds advanced to support the submission that there is a reasonable prospect of success on appeal, and Part B with the basis upon which it is contended that, in any event, there are compelling reasons why leave to appeal should be granted to the Supreme Court of Appeal.

[2] The parties were represented as they were in the main application that served before us. In heads of argument delivered on 29 October 2019 it was disclosed on the applicant’s behalf that certain “developments” have taken place since we delivered judgment on 19 September 2019, namely that:

2.1 His extradition enquiry is scheduled to commence on 29 November 2019 in the Cape Town Magistrate’s Court;

2.2 He has instructed his legal representatives that, even if leave to appeal is granted, the enquiry must proceed as scheduled; and

2.3 Should leave to appeal be granted, his legal representatives are instructed to approach the Supreme Court of Appeal for an expedited hearing, possibly in the first quarter of 2020.

[3] During argument Mr Katz informed us that the reason for these “developments” is to put paid to any further suggestion by the first to third respondents that the applicant has adopted a “Stalingrad” strategy in order to delay the extradition enquiry for as long as possible. We were not told why the applicant believes that he should receive preferential treatment from the Supreme Court of Appeal, more particularly in light of his stance that the extradition enquiry must proceed in the interim.

[4] In addition, no information was placed before us on the applicant’s behalf as to how long the extradition enquiry is likely to take, notwithstanding that the Magistrate’s Court sits throughout the year. There is therefore nothing to indicate that the enquiry will be lengthy, or that there will be delays such that it is unlikely to be finalised by February 2020, which is when the Supreme Court of Appeal commences its sitting for the first term of 2020.

[5] Accordingly, while the issues referred to in our judgment are not yet moot, they might become moot before any appeal is heard. In this regard we are mindful of the foundation upon which the main application was based, namely that the warrant leading to the applicant’s arrest was unlawfully issued and is thus invalid.

[6] All the remaining relief sought by the applicant was premised on that foundation – the so-called “domino effect”, given that in terms of s 9 of the Extradition Act 67 of 1962 an enquiry may only take place in respect of an individual detained under a (lawful) warrant of arrest. Yet the applicant insists that the extradition enquiry proceeds nonetheless.

[7] If leave to appeal were to be granted, and the appeal heard by the Supreme Court of Appeal during or after the conclusion of the extradition enquiry, two potential consequences arise. First, the State will be put to the expense, and the presiding officer and witnesses inconvenienced, in the face of the possibility that the Supreme Court of Appeal might find that the warrant was unlawfully issued in the first place. Second, while the State would have no right of appeal, but only a possible review remedy against the decision of the Magistrate, the applicant has an automatic right of appeal to the High Court should the Magistrate find that he is liable to be surrendered to the Netherlands.

[8] That appeal would have to be prosecuted within 15 days of the Magistrate’s order in terms of s 12 and s 13 of the Extradition Act. The applicant has not given any indication that he will abide the Magistrate’s decision irrespective of the outcome of any appeal process in this matter. There is thus every likelihood that, even if leave to appeal is granted, there will be two parallel processes which will unfold.

[9] Accordingly an appeal against our decision would not be dispositive of all the issues in this case. It would also not lead to a just and prompt resolution of the real issues between the parties. It therefore does not fall within the ambit of s 17(1)(c) of the Superior Courts Act 10 of 2013 (“the Act”).

[10] This gives rise to the question whether an appeal will have any practical effect or result as envisaged in s 16(2)(a) as read with s 17(1)(a)(ii) and (b) of the Act. We are mindful of what was held at para [14] in Centre for Child Law v Hoërskool Fochville and Another:[1]

‘[14] The High Court considered that it was engaged in the proper interpretation of rule 35(12). On that score it has spoken and absent an appeal its judgment will in all probability continue to influence how litigants approach such an enquiry. If the High Court erred in its approach, as it appears that it indeed has, then future litigants are entitled to the benefit of this court’s view on the issue. I thus consider that the determination of the appeal will have a “practical effect or result” within the meaning of that expression, inasmuch as a discrete legal issue of public importance arises that would affect matters in the future and on which the adjudication of this court is required.’

[11] As we understood the arguments before us, this consideration hinges on Part B of the notice of application for leave to appeal which for convenience is repeated hereunder:

‘B: Compelling reasons why the appeal should be heard

22. The Court correctly recognised that there are two schools of thought in relation to the question whether police officers may properly act as commissioners of oaths for their colleagues (paragraph 71 of the judgment). The Court identified the several conflicting provincial judgments relating to this issue. This controversial issue has yet to receive the attention of an appellate court.

23. Furthermore, the commissioning of affidavits of police officers, by their colleagues, is an issue which arises frequently, and it is an issue of public importance that will have an effect on future matters.’

[12] All of the decisions referred to at paras [71] to [77] of our judgment were those of single judges. We have already dealt with the reasons why we are in complete agreement with the Sihlobo line of decisions. We are persuaded by Mr Breitenbach’s submission that it is extremely unlikely that a higher court will follow the Dyani approach, given that it is simply not supported by the plain wording of regulation 7(2) itself. We are accordingly of the view that the conflicting judgments of single judges on the issue is not a sufficient, stand-alone ground to constitute “some other compelling reason” for purposes of s 17(1)(a)(ii) of the Act.

[13] Having given the matter considerable thought, we are also not persuaded that the grounds advanced by the applicant in Part A of the notice of application for leave to appeal meet the threshold formulated by the Supreme Court of Appeal in MEC for Health, Eastern Cape v Mkhitha[2]:

‘[17]  An applicant for leave to appeal must convince the court on proper grounds that there is a reasonable prospect or realistic chance of success on appeal. A mere possibility of success, an arguable case or one that is not hopeless, is not enough. There must be a sound, rational basis to conclude that there is a reasonable prospect of success on appeal.’

[14] Last, insofar as the applicant contends that we incorrectly summarised his grounds of review in our judgment in that we did not mention that these included the alleged breach by Van Heerden of his undertaking, we quote paragraph 2 of the applicant’s main heads of argument hereunder:

‘2. The applicant submits that the warrant was issued unlawfully for seven separate self-standing reasons, both individually and cumulatively:

2.1 The Pretoria Magistrate rubber-stamped the application for the warrant of arrest (this has not been disputed by the Pretoria Magistrate);

2.2 The person who applied for and obtained the warrant (W.O. van der Heever) failed to make a full and frank disclosure to the Pretoria Magistrate;

2.3 The arrest was in breach of an undertaking given by the SAPS, represented by W.O. van der Heever, and the reasons given for this breach are manifestly contrived and disingenuous;

2.4 There was no urgency as required by article 16 of the European Convention on Extradition;

2.5 W.O van der Heever’s supporting affidavit which was placed before the Pretoria Magistrate, was deposed before a colleague of his at Interpol, SAPS. This colleague was not independent, unbiased and impartial and therefore the affidavit was invalid;

2.6 The Pretoria Magistrate failed to comply with the requirements of s 8 of the Extradition Act 67 of 1962 (“the Act”); and

2.7 The proceedings against the applicant were afflicted by bad faith and abuse of process.’

[15] It is accordingly clear that Van Heerden was not referred to in the aforementioned paragraph. However we nonetheless dealt with the issue pertaining to Van Heerden at paragraphs [14] to [17], [21], [34] to [35] and [42] of our judgment.

[16] We thus make the following order:

‘1. The application for leave to appeal is refused.

2. The applicant shall pay the costs of the first to third respondents on the scale as between party and party as taxed or agreed, including the costs of two counsel in each instance.’

 

            _______________________

J I CLOETE

 

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C M FORTUIN

 

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