- The Constitutional Court decided that only the national Executive can authorise outgoing extradition requests to foreign states.
- It ruled that Nomalanga Cholota’s extradition from the United States was unlawful because prosecutors made the request, not the Executive.
- The Court stated that unlawful extradition does not, by itself, take away South African courts’ criminal jurisdiction.
The Constitutional Court determined that only the national Executive has the authority to authorise outgoing extradition requests. Prosecutors cannot seek the surrender of suspects from foreign states on their own.
In a unanimous judgment delivered on 23 January 2026, the court clarified a previously unclear area of extradition law. It held that the National Prosecuting Authority can prepare extradition documents but cannot make the request itself. The ruling confirms that extradition is an act of state sovereignty related to foreign affairs, while also maintaining the criminal jurisdiction of South African courts if an accused has already been returned.
The decision involved two consolidated cases concerning Jonathan Schultz and Nomalanga Moroadi Selina Cholota, who were either extradited or facing extradition from the United States. A key constitutional question was who in South Africa has the authority to request a foreign country to surrender a suspect. “This court is examining two matters that centre on who has the power to make outgoing extradition requests,” Justice Leona Valerie Theron wrote for a unanimous bench.
Both matters arose from serious criminal prosecutions in which the state alleged that the accused had fled South Africa to avoid facing trial. Schultz, a South African citizen living in the United States since 2019, was sought by prosecutors in connection with criminal charges pending in South Africa, prompting the National Prosecuting Authority to initiate steps to secure his return.
Cholota, a former personal assistant to former Free State premier Ace Magashule, was sought for her alleged role in the asbestos corruption prosecution, in which the state alleges that millions of rand were unlawfully diverted from a public housing project. In both cases, the state relied on extradition proceedings in the United States to bring the accused back to South Africa to stand trial.
Prosecutors versus the Executive
The National Prosecuting Authority argued that the power to request extradition was a natural part of its constitutional duty to carry out criminal proceedings. It relied on Section 179 of the Constitution, which gives prosecutors the authority to perform functions necessary for prosecutions. The NPA warned that executive control could undermine its independence.
The court dismissed that argument. “It is clear that the Constitution does not grant the NPA specific powers to make outgoing extradition requests,” Justice Theron said. The court emphasised that implied powers are rare and only arise when absolutely necessary to fulfil express powers.
The judgment defined a clear line between domestic prosecution and international diplomacy. “Acts of external sovereignty, like extradition requests, relate to foreign and diplomatic relations,” the court said. “When an official or state entity acts on behalf of a state, they must have the authority to bind the state.” Allowing prosecutors to make such requests, the court warned, “would give a non-executive domestic body an executive function at a state-to-state level.”
While the NPA remains responsible for deciding whether to prosecute and for preparing extradition documents, the Court ruled that the final decision to engage a foreign state must rest with the Executive, which is constitutionally responsible for managing foreign affairs and representing South Africa internationally. “Prosecutorial independence cannot allow the NPA to extend beyond its authority and exercise powers more appropriately belonging to the national Executive,” Justice Theron said.
Who within the Executive holds the power
Although the Supreme Court of Appeal previously identified the Minister of Justice as holding this authority, the Constitutional Court corrected that view. “The executive power of the state is vested in the President and shared with other Cabinet members,” the court stated.
No constitutional provision designated the Minister of Justice as the sole authority for approving extradition requests. Instead, the power belongs to the Executive as a whole, with the President allowed to delegate the task among ministers. This clarification ensures extradition decisions remain accountable to democracy and subject to executive oversight, especially when sensitive diplomatic and political issues arise.
The Cholota extradition was declared unlawful.
Applying these principles, the court determined that Cholota’s extradition from the United States was unlawfully authorised. It was agreed that the request was made by the Director of Public Prosecutions and not by a member of the Executive. “To the extent that the Bloemfontein High Court found her extradition to be irregular and unlawful for this reason, it was correct,” Justice Theron said.
The state claimed that the defect had been resolved by a lawful US court order allowing her surrender. The Constitutional Court rejected this argument. “When the actions of South African officials make an extradition request irregular or unlawful, it cannot be the case that subsequent proper and lawful extradition procedures in the requested state erase that irregularity or unlawfulness,” the court stated. “The exercise of public power must comply with the Constitution and the doctrine of legality.”
Jurisdiction preserved despite unlawful extradition
The most important aspect of the ruling involved the impact of unlawful extradition on criminal jurisdiction. The Bloemfontein High Court had concluded that because the extradition was unlawful, it lacked the authority to try Cholota, citing the earlier decision in S v Ebrahim, where the accused had been abducted across borders by state agents. The Constitutional Court disagreed.
While it confirmed that the extradition request was unlawful, the court distinguished between administrative unlawfulness and serious state misconduct. In Ebrahim, the accused was unlawfully taken across borders by South African state agents. In contrast, Cholota was surrendered following formal judicial proceedings in the United States.
The court declared that “the fact that the extradition was unlawful does not by itself take away the High Court’s criminal jurisdiction.” The matter was sent back to the Bloemfontein High Court to determine the remaining grounds of Cholota’s special plea.
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