IN THE HIGH COURT OF SOUTH AFRICA

[WESTERN CAPE HIGH COURT, CAPE TOWN]

Case No: 4731/2010

In the matter between:

and
THE MINISTER OF JUSTICE AND 

THE FORMER MINISTER OF JUSTICE 

THE DIRECTOR-GENERAL: JUSTICE AND 

THE NATIONAL DIRECTOR OF PUBLIC 

THE WESTERN CAPE PROVINCIAL COMMISSIONER

JUDGMENT DELIVERED: 14 APRIL 2011 
Fourie et Yekiso JJ:

[1] The troubled relationship between applicant and the South African authorities over a period of more than 20 years, forms the background to this application. This led to six requests by the Italian Government to the South African authorities for the extradition of applicant. All of these requests were unsuccessful, with this court reviewing and setting aside the steps taken in terms of the most recent request, in our judgment of 14 June 2010 ("the judgment"). In the judgment we dealt extensively with the factual background, as well as the legislative scheme and legal principles applicable to the request for the extradition of applicant. We accordingly do not intend repeating same in any great detail, and accept that any person interested in this judgment is fully conversant with the history of the matter, including the content of the affidavits filed in the applications heard by this court.

[3] The issuing of the section 5 (I) (a) notice in the instant case, prompted applicant to institute review proceedings which culminated in the judgment. In terms of the judgment, the decisions of second and first respondents, respectively, to issue and confirm the section 5 (1) (a) notice, in relation to applicant's extradition to Italy, were reviewed and set aside.

[4] In the context of the present application, the contents of paragraphs 33 and 34 of the judgment are of importance. It appears that the different views of the parties as to the binding force or impact thereof, led to the present application. The application was brought on an urgent basis during December 2010, with interim relief being granted by agreement between the parties and the matter was then set down for hearing by this court. The application is opposed by first and third respondents.

[5]    It is apposite to quote paragraphs 33 and 34 of the judgment in full:

"[33] In argument an alternative submission was advanced on behalf of respondents, namely that if it is found that Abel's case is correct, then the Minister had only to he satisfied that the request on its face stated or showed the existence of an extraditable offence. It was argued that the Minister was quite correct in accepting that an extraditable offence has been stated or shown, especially if the factual basis for the court of Palermo's finding as set out in its judgment (which judgment served before the Ministers as part of the request), is read with the provisions of the Prevention of Organised Crime Act No. 121 of 1998 and the Prevention and Combating of Corrupt Activities Act No. 12 of2004.

[34] The difficulty that I have with this submission, is that it is not the respondents' case that Minister Surly or Minister Radebe, was, in fact, satisfied that the request on its face stated or showed the existence of an extraditable offence. In any event, the request does not state or show that a con vidian of this Mafia-type association under section 416 bis of the Italian Criminal Code, has a counterpart in South African criminal law. resulting in it being an extraditable offence. Respondents' reliance on Acts 121 oj'199H and 12 of2004 is. in my opinion, misplaced. These Acts do not criminalise the joining of an association with Mafia-type characteristics (as section 416 bis of the Italian Criminal Code does) and had. in any event, not yet been promulgated at the time that applicant was allegedly involved in Mafia-type activities in Italy, which led to his conviction by the court of Palermo. As held by the House of Lords in R v Bow Street Metropolitan Stipendiary Magistrate: Ex Parte Pinochet Vgarte (No3) [1999] 2 ALL ER 97. the principle of double criminality requires that the conduct for which extradition is sought, is an offence in both the requesting and requested countries at the time of the commission of the offence".

"We confirm that in the judgment (he Court held in respect of the alternative argument on behalf of the Ministers to the effect that the Ministers were quite correct in accepting that an extraditable offence had been stated or shown, that the request did in fact not state or show that a conviction of Mafia-type association under Section 416 bis of the Italian Criminal Code has a counterpart in South African law, resulting in it being an extraditable offence.
Furthermore, the Court held that the Respondents' reliance on the provisions of the Prevention of Organised Crime Act, No. 121 of 1998, and the Prevention and Combating of Corrupt Activities Act, No. 12 of 2004, was misplaced. The Court held that these Acts do not criminalize the joining of an association with Mafia-type characteristics (as Section 416 bis of the Italian Criminal Code does) and had, in any event, not yet been promulgated at the time thai our client was allegedly involved in Mafia-type activities in Italy.

In these circumstances, we are unable to grant your client the confirmation he seeks. Should the Minister receive any request for your client's extradition in future, he will duly apply his mind to the matter in the manner required by the relevant legislation. "

[8] In a further letter dated 12 November 2010, first respondent adopted the abovementioncd views expressed on behalf of third respondent, and reiterated:

"I confirm, in particular, that, should a renewed request for the extradition of your client be received from any foreign authority. I shall duly consider such request within the parameters of the relevant legislation. I am not aware that any new request for the extradition of your client has been received. "

[9] Attempts by the parties to set up a meeting to discuss their differences, failed, as appears from the reply of applicant's attorneys, dated 16 November 2010. in which the following is recorded:
"Insofar as it is now clear that you interpret the judgment...in the same erroneous manner as does your department.... the need for a meeting with my client's legal representatives has been obviated. Tlie request for a meeting is therefore withdrawn. We have no alternative but to bring a further court application."

[10] The substantive relief sought by applicant in the present application is set out in paragraphs 5 and 6 of the notice of motion, as follows:

(6)    Furthermore, and in any event -

6.4. declaring that the Applicant may not be arrested in connection with his aforesaid conviction, whether with a view to his extradition or otherwise;
6.5. interdicting the Minister of Justice and Constitutional Development from issuing a notification of the nature provided for in section 5(1 )(a) of the Extradition Act, No. 67 of 1962, as a consequence of any Italian request for the Applicant's extradition in respect of his aforesaid conviction."

[12] In detailing the subsequent events which, he alleges, have given rise to this application, applicant firstly points to the correspondence between the parties, to which we have already referred. He stresses that.

[18] We therefore conclude that applicant is not entitled to any relief in terms of paragraph 5 of the notice of motion.
[19] We now turn to the relief sought in paragraph 6 of the notice of motion. Applicant claims this relief independently from the relief claimed in paragraph 5 of the notice of motion. It will be noticed that the relief claimed in sub-paragraphs 6.1 to 6.4 of the notice of motion, constitutes the granting of declaratory orders. The relief claimed in paragraph 6.5, is interdictory in nature.

[23] We accordingly conclude that applicant is not entitled to the declaration of rights which he seeks in paragraphs 6.2 and 6.3 of the notice of motion.

[24] This brings us to paragraphs 6.1 and 6.4 of the notice of motion. As mentioned earlier, applicant maintains that he is entitled to seek relief from this court due to the defiance of the judgment and its concomitant orders by first and third respondents. It will he immediately apparent that the relief sought by way of declarators in paragraphs 6.1 and 6.4 of the notice of motion, is not only far-reaching, but ranges beyond any finding made by us in the judgment. In paragraph 6.1. an order is sought declaring that applicant's conviction of Mafia-type association under the Italian Criminal Code, has no equivalent or counterpart at all in South African criminal law. In paragraph 6.4. the court is asked to declare that applicant may not be arrested in connection with his conviction in Italy, whether with the view to his extradition or otherwise. In effect, the relief sought in paragraph 6.4. is based on the same premise as paragraph 6.1, namely that the Italian conviction of applicant has no counterpart at all in South African criminal law, a finding which we did not make in the judgment.

[28] In these circumstances, it appears to us that applicant has not shown that the subsequent conduct of first and third respondents, justifies the conclusion that the clear and present danger for which he contends, exists. We arc therefore not convinced that the circumstances justify the exercising of our discretion in favour of applicant at this stage, by granting the far-reaching declaratory relief sought in paragraphs 6.1 and 6.4 of the notice of motion.

[31] It follows that the application falls to be dismissed. As far as costs are concerned, first and third respondents as the successful parties would normally be entitled to their costs. Wc are of the view that there are no grounds to depart from the general rule. In particular, this does not appear to be a case where applicant has raised constitutional issues of general concern, which ought to indemnify him from paying the costs of his governmental adversaries. The present litigation rather involves the application of the judgment and the evaluation of first and third respondents* conduct in the light of the findings made in the judgment. Applicant was unsuccessful in establishing conduct on the part of first and third respondents justifying the granting of declaratory and interdictory relief. In these circumstances, we believe, that he should be liable for the costs of the application, which, in our view, justified the employment of two counsel.

[32]   In the result the following order is made:

1      The application is dismissed.
2.      Applicant is ordered to pay the costs of first and third respondents, including the costs of two counsel.

				

P B Fourie, J