South Africa’s extradition logjam – ‘Stalingrad on steroids’ or incompetence?

Enlightened Christian Gathering Church Shepherd Bushiri appears at Pretoria Magistrate Court for bail hearing on 23 October 2020 in Pretoria, South Africa. (Photo by Gallo Images / Frennie Shivambu)

By Peter Fabricius

2 Aug 2022

We asked experts what might be behind the seeming interminability and extraordinary complexity of extradition cases.

In the first statement he released on 25 July about all the extraditions South Africa is dealing with, Justice Minister Ronald Lamola surprised more than a few people by announcing that, after the Constitutional Court had turned down the Mozambique government’s appeal, it had run out of litigation options and so Mozambique’s former finance minister Manuel Chang “will therefore have to be surrendered to the US authorities”.

After more than three years in a South African jail fighting to avoid that fate, Chang was finally going to be sent to New York to face real justice, rather than on a plane to Maputo to face – who knew what? A sham trial, perhaps. Or none? A few champagne corks popped in Maputo among the civil society watchdogs.

Sadly for them, it turned out that the statement was wrong. Lamola amended it as he read it, saying that, after being rejected by the ConCourt, the Mozambique government had then sought leave from the Johannesburg High Court to appeal to the Supreme Court of Appeal (SCA) against the high court’s November 2021 judgment that Chang should be extradited to the US – and not to Mozambique, as Lamola had ordered in August 2021.

Coincidentally, two days later, high court Judge Margaret Victor, who had delivered the November 2021 judgment consigning Chang to the US, then delivered her judgment, dismissing the Mozambique government application to appeal to the SCA.

So, did that mean Chang was, in fact, finally headed to New York? Not necessarily, legal sources said. Mozambique might still petition the SCA directly.

This anecdote is offered not to embarrass the Department of Justice or its minister, but more to illustrate how complex and seemingly interminable extradition cases can be, when even the highest legal authority in the land can assume a major case is finally over but then the tale takes another twist.

Read more in Daily Maverick: “South Africa requests extradition of Gupta brothers from UAE”

South Africans are accustomed to the seeming interminability of litigation, having witnessed – and continuing to witness – former president Jacob Zuma’s exasperating Stalingrad tactics of fighting every legal inch of the way for 17 years to stay out of jail.

But a legal expert who did not want to be identified suggested to DM168 that extradition is really “Stalingrad on steroids”.

Another big case Justice Minister Ronald Lamola dealt with was Pretoria’s efforts to get Malawi to extradite 'prophet' Shepherd Bushiri and his wife Mary back to South Africa. (Photo: Gallo Images / Frennie Shivambu)

Officials say South Africa is dealing with about 50 cases of extradition and the related phenomenon of seeking “mutual legal assistance” (MLA) from other countries.

Lamola’s big-ticket item was his attempts to extradite Atul and Rajesh Gupta from the United Arab Emirates (UAE), where they have already been arrested. National Director of Public Prosecutions Shamila Batohi announced at the briefing that a formal extradition request had been sent to the UAE for them to be returned to South Africa to face charges in the Estina Dairy and Nulane cases.

The next-biggest item was the controversy over the claim by the Namibian government that Pretoria had not responded to a request for mutual legal assistance in investigating David Immanuwela, a Namibian citizen who had fled to Namibia and been arrested after participating in the theft of cash hidden in a sofa at President Cyril Ramaphosa’s Limpopo game farm Phala Phala in 2020.

The suggestion has been that Pretoria ignored the request from Namibia as part of Ramaphosa’s alleged cover-up of this theft.

Lamola said on 25 July that South Africa had responded to Namibia’s MLA in 2020, but that it did not comply with legislation. Pretoria had sent it back to Namibia, asking Windhoek to redraft the request. Namibia had never replied. Lamola insisted that he had been personally unaware of this correspondence between his officials and the Namibian authorities and so he had been unaware of the theft at Phala Phala.

Another big case Lamola dealt with was Pretoria’s efforts to get Malawi to extradite “prophet” Shepherd Bushiri and his wife Mary back to South Africa to face charges of swindling naive members of his evangelical congregation, and also of Shepherd raping some of them. This case is stuck in litigation in Malawi.

Read more in Daily Maverick: “Former Mozambican finance minister Chang a step closer to a US courtroom after appeal rejected”

Lamola also gave an update on Australia’s efforts since 2016 to extradite Australian citizen Anthony Peter Freedendal (80) to stand trial on five charges of “persistent sexual exploitation of a child”, four charges of unlawful sexual intercourse and related charges.

Freedendal, who has served five years in a Cape Town jail for sexual offences against children here, first appealed against extradition to Australia, then withdrew his legal appeal and urged the minister not to send him to Australia on grounds of his ill-health. Lamola ordered him to be surrendered to Australia anyway after Australia had given assurances that its prisons would be able to manage his health conditions. Freedendal then appealed to the high court against Lamola’s order and this case is pending.

‘State failure’

What explains the complexity and apparent interminability of these extradition processes? André Thomashausen, professor emeritus of international law at the University of South Africa, ascribes much of it to state failure. He notes that Pravin Gordhan once totalled the cost to South Africa of State Capture at about R700-billion, with the Guptas at the core.

“Now they are charged with only two cases of corruption, fraud and money laundering, involving just a few hundred million.”

Another lawyer, who asked not to be named, suggested more generously that the delays and complexities were inherent in the extradition process.

Read more in Daily Maverick: “UK gives go-ahead to U.S. extradition of WikiLeaks’ founder Julian Assange”

“All criminal procedure needs to strike a balance between protecting the rights of those who might otherwise be unfairly or improperly implicated and charged and go to jail, with, on the other hand, no impunity for those who do bad things. And that’s the balance. And extradition is just about striking that balance, but on steroids, because there’s a whole host of other things that come into play,” he said.

All these factors and others were what put the normal requirement to balance the interests of fairness to the individual against avoiding impunity “on steroids”. DM168

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‘State failure’