PDF Case No. Cct 24/08 in The Constitutional Court of South Africa

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IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CASE No: 959/2004 (TPD of the High Court)

In the matter between:

THE PRESIDENT OF THE REPUBLIC

OF SOUTH AFRICA First Applicant

THE MINISTER FOR JUSTICE AND

CONSTITUTIONAL DEVELOPMENT Second Applicant

THE DIRECTOR OF PUBLIC PROSECUTIONS,

WITWATERSRAND LOCAL DIVISION Third Applicant

and

NELLO QUAGLIANI Respondent

and

CASE NO: 28214/06 (TPD OF THE HIGH COURT)

THE PRESIDENT OF THE REPUBLIC

OF SOUTH AFRICA First Applicant

THE MINISTER FOR JUSTICE AND

CONSTITUTIONAL DEVELOPMENT Second Applicant

THE DIRECTOR OF PUBLIC PROSECUTIONS,

WITWATERSRAND LOCAL DIVISION Third Applicant

and

STEPHEN MARK VAN ROOYEN First Respondent

LAURA VANESSA BROWN Second Respondent

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OPPOSING AFFIDAVIT OF FIRST RESPONDENT:

STEPHEN MARK VAN ROOYEN (In TPD Case No 28214/06)

I, the undersigned,

STEPHEN MARK VAN ROOYEN

do hereby make oath and state that:

1. I am an adult male South African citizen businessman. I was the First Applicant in Case No: 28214/06 in the High Court of South Africa (Transvaal Provincial Division) (“the TPD”), the result of which is the subject matter of the application to this Court for leave to appeal directly to it in terms of Rule 19 of the Rules of this Court. (“the Rules”) I am the First Respondent in the application brought in this Court against Laura Vanessa Brown (“Laura”) and myself.

2. The facts herein contained are, unless the contrary appears from the context, within my knowledge and are true and correct. Wherever in this affidavit I make submissions on the law, unless otherwise indicated, such submissions are made on the basis of advice given to us by our legal advisors. Although I am a graduate in law from the University of Cape Town, I have never practised law and thus have relied on the legal advice we have received in making the legal submissions made

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herein. I verily believe such advice to be correct, as do I in respect of what our legal representatives state was contained in the oral judgment delivered by Preller J in the TPD on 6 March 2008.

3. The Second Applicant in the Court below was Laura, an adult female American citizen and businesswoman who married me in terms of the marriage laws of South Africa on 3 August 2006. We are still so married. Laura is the Second Respondent in the application to this Court.

4. Wherever in this affidavit, I use the first person plural pronoun “we”, “our”,

“my” and “us”, I shall be referring to Laura and me.

5. We have read the application for leave to appeal directly to this Court and carefully considered its contents. We oppose the application on the grounds set out below.

6. This matter concerns an extradition agreement signed on 16 September 1999 purportedly between the United States of America (“the United States”) and the Republic of South Africa. It was published in Government Gazette No. 22430 of 29 June 2001. I shall refer to it as the “extradition agreement” in this affidavit.

7. Prior to dealing with the affidavit deposed to by Herman Benjamin van Heerden (“Van Heerden”) dated 8 April 2008 and the annexures thereto, a number of preliminary points need to be made.

8. Although Van Heerden indicates in paragraph 6 that the full judgement of the Court below will be filed with the Registrar of this Court, at the time of deposing

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to this affidavit, this had not been done. All enquiries to the TPD indicate that at time of drafting this affidavit the judgment had not yet been signed by Preller J.

9. In the circumstances, we submit that this Court should not consider this application until such time as the signed judgment has become available and thereafter give Laura and I an opportunity to file a further affidavit taking into account the contents of the signed judgment. Accordingly we contend that this Court should direct that we be afforded an opportunity to deal by way of affidavit with the signed judgment within 10 days after it has been filed with this Court, and that only subsequently to receipt of such affidavits should this Court consider the application for leave to appeal directly to it.

10. We contend that it would be inappropriate for this Court to consider this application for leave to appeal directly to it until such time as the signed judgment has become available and filed with the Registrar of this Court and we have had an opportunity to address it in the light of the contents of Van Heerden’s affidavit.

11. In the circumstances, we have been constrained to attempt herein to answer the application for leave to appeal directly as best we can, but we reserve our rights to file further affidavits, if so permitted.

12. We also point out that in paragraph 13 of Van Heerden’s affidavit, he suggests that issues raised by us before the TPD, but not decided by it as a result of its conclusion in relation to our arguments concerning incorporation of the extradition agreement for the purposes of section 231(4) of the Constitution, should, in any event, be decided upon by this Court even if we fail to lodge a cross-appeal. While it is clear from what is set forth in this affidavit that we

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oppose the application for leave to appeal directly to this Court, clearly it would then - and only then – be apposite that all the other issues be dealt with in argument before this Court, should it grant the relief sought in the application.

13. Because, so we have been given to understand, the TPD did not deal with our other arguments, and accordingly did not reject any of them, we contend that this Court would in effect be granting the Applicants direct access in respect of those other issues should it accede to the Applicants’ application.

14. This Court, in terms of Rule 18, may grant direct access on application to it in appropriate circumstances if the interests of justice so demand.

15. It is contended that it is not in the interests of justice for this Court to grant the Applicants, what would in effect be, direct access in respect of those issues which the Court below did not decide, or even address (as we understand).¹

16. The preferable route we submit is for the Supreme Court of Appeal (“the SCA”) to be seized with the matter, if at all, and thereafter for the Applicants to apply for leave to appeal from that Court to this Court, if they deem it appropriate. As mentioned in paragraph 15 of Van Heerden’s affidavit, the Applicants have filed a conditional application to the TPD for leave to appeal from it to the SCA.

1 Zondi v Member of the Executive Council for Traditional and Local Governmental Affairs and Others 2005 (3) SA 589 (CC) at para [12]; Bruce and Another v Fleecytex Johannesburg CC and Others 1998 (2) SA 1143 (CC) at paras [4] - [9]; S v Bequinot 1997 (2) SA 887 (CC) at para [15].

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17. This would be consistent with the ordinary or usual rule that it is not in the interests of justice for this Court to sit as a Court of first and last instance.²

18. This Court would in effect be sitting as Court of first and last instance if it decided to be seized with matters not canvassed by the Court below.

19. It should also be noted that the application and Van Heerden’s affidavit do not identify or provide any detail as to exactly which points or arguments it wishes this Court to decide.

20. They also do not indicate how, in their submission, this Court is to deal with those aspects not dealt with by the Court below.

21. The mere fact that the Applicants have failed to identify exactly which issues it wishes this Court to consider and “to obtain finality on all issues regarding the validity and enforceability of our international extradition treaties” is reason in and of itself to refuse this application.

22. The Applicants have not joined the Speaker of the National Assembly (“the Speaker”) and the Chairperson of the National Council of Provinces (“the Chairperson”) in this application. They were respondents in the TPD and costs orders were made against them by the TPD. They clearly have an interest in this application and the failure to join them constitutes a non-joinder. For this reason alone the application should be dismissed.

2 See: Zondi v MEC for Traditional and Local Government Affairs 2005 (3) SA 589 (CC) at paras [13] – [15] and Campus Law Clinic, University of Kwazulu-Natal v Standard Bank of South Africa 2006 (6) SA 103 (CC) at para [26] and the cases cited at footnote 25.

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23. What is also significant is that the Speaker and the Chairperson obviously have a direct and substantial interest in some but not all of the other issues raised by us in the TPD, but not dealt with by it in the judgment of Preller J. The Applicants do not suggest how they expect this Court to consider the other issues without in detail identifying such issues and without joining the Speaker and the Chairperson, who were parties in the TPD, and who have an obvious direct and substantial interest in the arguments which may be raised and be the issues in the matter.

24. In any event, quite apart from the obvious difficulties raised above in respect of the other unaddressed issues, it is submitted that granting leave to appeal directly to this Court is not in the interests of justice in respect of the order that was made by the TPD in our favour on 6 March 2008. Any possible appeal should be to the SCA with leave of the TPD.

25. It is contended that there is no merit in the appeal and that there are no prospects, let alone reasonable prospects, of success that this Court will materially reverse or alter the order made by the TPD.

26. The order deals with the concept of incorporation of international agreements into domestic South African law. The governing provision relating to incorporation is section 231 (4) of the Constitution.

27. Indeed, Van Heerden correctly submits, in paragraph 7, that it is common cause that the extradition agreement has not been enacted into law by national legislation for the purposes of section 231 (4) of the Constitution.

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28. It is submitted that there is, and can be, no merit in the suggestion that the extradition agreement itself and as a whole is “self - executing”, bearing in mind that the proviso contained in section 231 (4) refers to a “self-executing provision”

of an international agreement, and not a “self- executing international agreement.”³

29. It is in any event impossible to conceive how the entire extradition agreement can be regarded as self - executing.

30. It is contended that the order made by the TPD is thus unassailable because it is clear that the extradition agreement is not in force for purposes of section 1 of the Extradition Act No . 67 of 1962.

31. In the circumstances there is no substance in the argument that the TPD was incorrect in making the order it did.

32. Accordingly, for this reason alone there is no merit in the application for leave to appeal, and there is no reasonable prospect that this Court will reverse or materially alter the order of the TPD.

33. It is not without significance that all that Van Heerden submits in regard to prospects of success on appeal is that they are “good” (in paragraph 16).

Nowhere does he suggest that the judgment of the TPD was in fact wrong. Of further significance is the failure of the Applicants to comply with Rule 19 (3) (a) inasmuch as they have failed to set forth the grounds upon which the decision of the TPD is disputed.

3 Anton Katz ‘The Incorporation of Extradition Agreements’ (2003) South African Criminal Justice 311.

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34. Quite apart from these reasons, there is another reason - so we submit - why this Court should not by-pass the SCA by granting leave to appeal directly to it.

35. The matters have dragged on for a number of years, principally because of the laxity of the Applicants, and through no fault of Mr Quagliani or us.

36. Indeed, in the TPD we complied with the High Court Rules at all times, and in particular in respect of the prescribed time periods. The late and often incomplete filing of documents by the Applicants in the TPD should militate against granting the Applicants what is in effect an indulgence by granting them leave to appeal directly to this Court.

37. The Applicants, being organs of state, are no ordinary litigants. They have special duties to the courts, which we submit they ignored time and again during the proceedings before the Court below by filing late and incomplete documentation without any explanation at all, let alone a reasonable one.

38. We submit that when it suits the Applicants to demand that court process happens on an expedited basis, they demand exceptions to the ordinary rules to suit their apparent purposes without any regard to their own remissness with regard to their own conduct in the matter.

39. It is contended that it is not in the interests of justice to indulge their desires in this respect.

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40. We also point out that we shall be opposing the application for leave to appeal to the SCA filed in the TPD by the Applicants and may file a conditional cross- appeal in respect of certain of the unaddressed issues raised by us before the TPD.

41. I turn now to deal with the affidavit of Van Heerden seriatim.

42. AD PARAGRAPH 1 THEREOF:

42.1 I deny that it is appropriate that someone such as Van Heerden, who is a senior legal administration officer in the Department of Justice and Constitutional Development, should depose to an affidavit on behalf of the Applicants.

42.2 Not one of the Applicants has filed an affidavit to confirm that which he states.

I note the contents of this paragraph.

The contents of this paragraph are correct.

45.1 The contents of this paragraph are correct.

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45.2 As mentioned above, the Speaker and the Chairperson have not been joined in this application, but I point out that as the Sixth and Seventh Respondents in Case No: 959/2004 and the Seventh and Eighth Respondents in Case No: 28214/2006, the Speaker and the Chairperson have not sought leave to appeal directly to this Court nor to the SCA in respect of the costs’ orders against them. Those orders accordingly stand.

The contents of this paragraph are not put in issue.

47.1 The contents of this paragraph are not put in issue.

47.2 At the time of drafting this affidavit, the judgment as signed by Preller J has not become available and has not been filed with the Registrar of this Court.

48.1 The contents of this paragraph are admitted.

48.2 However, I point out that in the applications heard by the TPD, Van Heerden deposed to a number of different affidavits. Whilst at certain times he stated that it was accepted that the extradition agreement had not been enacted into law by national legislation, as contemplated by section 231(4) of the Constitution, at another time he did not accept this

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proposition. When issue was taken with his stance in this regard, he apologised for having made what appeared to be a less than clear statement on the issue. That he now accepts that the extradition agreement was never enacted into law by national legislation constitutes, we contend, an acceptance by the Applicants - ultimately that it had no force in South African law for the purposes of section 1 of the Extradition Act.

The contents of this paragraph are admitted.

Save to state that the Applicants only relied on the provisions of the United States domestic law and not that of other countries, the contents of this paragraph are admitted.

It appears, without having access to the signed judgment by Preller J, that the contents of this paragraph are correct.

The contents of this paragraph are correct.

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53.1 The incorporation into domestic law of international agreements such as the extradition agreement is at least in part a constitutional issue. As the wording of section 231 (4) of the Constitution is clear it is unnecessary to call in aid the assistance of this Court.

53.2 The reference to the accession to the “Council of Europe’s Convention on Extradition” is misplaced. What Van Heerden appears to be alluding to is the European Convention on Extradition. The processes of entering into that Convention and its incorporation are by necessity different, inter alia, because it is a multilateral international agreement and not a bilateral one like the extradition agreement.

54. AD PARAGRAPH 13THEREOF:

54.1 It is so that we raised other issues before the TPD. It is telling that Van Heerden is not able to say whether the TPD dealt with and rejected them or did not decide upon them. We have been given to understand that the TPD made no mention of these other issues. It is contended that it is not in the interests of justice for this Court to be seized with matters in circumstances where the Court below has not clearly given a judgment on such issues.

54.2 Van Heerden’s reference to the approval of the extradition agreement is not entirely accurate. What the President approved was that the extradition agreement be entered into. What was argued on our behalf was that section 2 (1) of the Extradition Act empowered the President, and only the President, to enter into extradition agreements with foreign states.

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This, so we contend, was not done, in conflict with the provisions of the Extradition Act. This issue, seemingly not dealt with by the TPD, is a matter principally of statutory construction. It is submitted that this Court should not sit as the first and last court in a matter concerned with statutory construction.

54.3 Not only did, so we understand, the TPD not deal with the issues referred to in paragraphs 13.4 to 13.7, but these are matters which have a direct and substantial effect on the workings of the National Assembly and the National Council of Provinces in relation to international agreements. We submit that, by reason of what hereinabove set forth, it is inappropriate for us to respond at this juncture to the issues raised in such paragraphs.

55.1 The delay in finalising the matters is not because of any remissness on the part of the Respondents. The delay is mainly because of the Applicants’

conduct. Their conduct should not beget them an advantage to avoid the usual route so as to by-pass the SCA. We submit that in a matter as important as Van Heerden states it to be, this Court will derive a great deal of benefit from the views of the SCA.

55.2 It is denied that the ends of justice and good government will be prejudiced if the matters are not first dealt with by the SCA. We contend that avoidance of the regular route of appeals from the High Court first being dealt with by the SCA will prejudice the ends of justice and good

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government unless a case for such avoidance is made out. The Applicants have not done so.

55.3 We cannot comment on other applications for the extradition of persons.

What is important is that every application must be determined on its own merits. The Applicants in these applications have not made out a case for by-passing the SCA and the application falls to be dismissed for this reason alone, we contend.

It is submitted that the Applicant’s application for leave to appeal to the SCA and any appeal consequent thereupon should be dealt with before this Court considers any appeal against the decision of the TPD.

We submit that the Applicants’ prospects of success are not good at all. Finality would be brought if this Court dismisses this application.

We request this Court to dismiss this application with costs to be borne by the Applicants, jointly and severally, the one paying the other to be absolved, such costs to include those attendant upon the employment of two counsel.

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_____________________________

STEPHEN MARK VAN ROOYEN

I certify that the above affidavit was signed and sworn to at Cape Town before me on this the day of APRIL 2008 by the deponent after he declared that he knew and understood the contents of this affidavit, that he had no objection to taking the prescribed oath which he regarded as binding on his conscience, and after he uttered the words: “I swear that the contents of this affidavit are true, so help me God”.

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