- Court affirms only the Minister of Justice can issue an extradition request under law.
- Richard Payne’s rights vindicated after request for his return from UK ruled invalid.
- Case highlights need for constitutional compliance and caution in handling international justice matters.
When Richard John Payne learned that the South African government had requested his extradition from the United Kingdom to face charges of fraud, corruption, and racketeering, he challenged not only the substance of the allegations, but the very legality of the request itself.
Now, in a judgment handed down by the Gauteng High Court in Pretoria, Payne’s fight for procedural fairness has resulted in a significant legal victory. At the heart of the matter was a critical question, who in the South African government is authorised to make a formal request to another country to return an accused person?
The answer, according to Acting Judge LG Kilmartin, lies in the Constitution, and it is not the Director of Public Prosecutions (DPP), who made the request for Payne’s return. Instead, the court ruled that such a request must come from the Minister of Justice and Constitutional Development, as the only executive authority recognised in law to engage in matters involving foreign states.
The DPP, a member of the prosecutorial authority, is charged with pursuing justice inside the courtroom, not conducting diplomacy or representing South Africa at an international level.
This distinction is not merely technical. It’s about ensuring that when a state seeks to limit the freedom of someone residing in another country, especially through the force of extradition, every step must be constitutionally sound. For Payne, this judgment was about more than legal procedure, it was about the right to be treated lawfully, even in the face of serious allegations.
A foreign request built on faulty grounds
The extradition request in question was made in September 2022. At the time, Payne was living in the UK, and the South African DPP submitted a request for his return to face trial. That request triggered legal proceedings in the United Kingdom, where Payne objected, arguing that the DPP had no authority to make such a request without the Justice Minister’s involvement.
Back in South Africa, Payne launched a parallel legal challenge to the validity of the DPP’s action. He was not alone in raising the alarm. In a separate case, Schultz v Minister of Justice, the Supreme Court of Appeal had already found that it is unconstitutional for the DPP to make outgoing extradition requests. That precedent would prove crucial to Payne’s own challenge.
Despite the clear precedent set in Schultz, the National Prosecuting Authority (NPA), which includes the DPP and the National Director of Public Prosecutions (NDPP), sought to delay Payne’s case. They argued that the Constitutional Court might overturn Schultz, and that it would be unfair to decide Payne’s matter while that uncertainty lingered.
But the High Court disagreed. It emphasised that the law as it stands, based on Schultz and earlier rulings like Quagliani, is binding. The court found no exceptional circumstances to justify delaying justice. Judge Kilmartin underscored the constitutional principle that courts must apply the law as it exists, not as parties hope it might become.
“There is an obligation on the courts,” the judgment read, “to make declarations of constitutional invalidity where conduct is inconsistent with the Constitution.”
Vindication through the rule of law
Judge Kilmartin ruled that the extradition request by the DPP was unlawful, invalid, and unconstitutional. The court confirmed that the DPP and NDPP have no authority to send such requests to foreign states. The request was set aside and declared invalid, and the state was ordered to pay Payne’s legal costs, including the services of two counsel.
While the outcome of Payne’s UK appeal remains pending, his South African victory is deeply significant. It speaks to the power of the Constitution to protect even those accused of serious crimes, and to the role of the courts in ensuring that justice is not only done, but done properly.
Conviction.co.za
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