Schultz v Minister of Justice and Correctional Services and Others

The appellant, Johnathan Richard Schultz, is a South African citizen residing in the United States since 2019. In November 2019, the South African Police Service arrested several persons accused of offences related to the alleged theft and sale of unwrought precious metals. The appellant was mentioned as an active member of one of the companies involved. In March 2022, the prosecution indicated an intention to request the appellant's extradition from the US. The appellant's attorneys sought clarity on which State official was authorized to submit an extradition request on behalf of South Africa to the US. The Minister's spokesperson, the DPP and the NPA provided responses, but none clarified who held the decision-making power. The appellant then approached the high court for declaratory relief that only the Minister has the power to submit an extradition request to the US. The high court dismissed the application, holding that the NPA had the power under section 179(2) of the Constitution read with the NPA Act.

• Whether the power to make an extradition request from the United States to South Africa vests in the Minister of Justice and Correctional Services or the National Prosecuting Authority
• Whether the power to make outgoing extradition requests is necessarily implied from the NPA's prosecutorial authority under section 179(2) of the Constitution
• The proper interpretation of the Extradition Act 67 of 1962 in relation to outgoing extradition requests
• The role of customary international law and the Extradition Treaty with the US in determining who has the power to make extradition requests
• The separation of powers between the executive and the NPA in the context of extradition

1. The appeal is upheld with costs, including the costs of two counsel, where so employed. 2. The order of the high court is set aside and replaced with the following: 'It is declared that only the first respondent in his capacity as a member of the national executive of the Republic of South Africa, has the power to make an extradition request for the extradition of the applicant from the United States of America.'

The binding legal principle established is that the power to make an outgoing extradition request to a foreign State, including the United States, vests in the Minister of Justice and Correctional Services as a member of the national executive, not in the National Prosecuting Authority. This power is derived from: (1) section 231(1) of the Constitution, which vests the negotiating and signing of international agreements in the national executive; (2) customary international law, which recognizes that foreign functions of State are conducted by the executive; (3) the Extradition Act 67 of 1962, which, though silent on outgoing requests, implicitly confers this power through sections 19 and 20 and the principle of reciprocity; and (4) the Extradition Treaty with the United States, under which the Minister represents the State. The NPA's constitutional power to prosecute under section 179(2) does not necessarily imply the power to make extradition requests, as extradition involves an international act invoking executive authority, not a prosecutorial function. The NPA's role is to compile and provide the necessary documentation, but the decision-making power to request extradition vests exclusively in the Minister. This demarcation of powers does not impinge on prosecutorial independence, as the principle of legality ensures the Minister cannot act in a manner that undermines the NPA's constitutional mandate.

The Court made several observations beyond the core holding. It noted that the current process described by the respondents, whereby extradition requests are processed without clear identification of who exercises decision-making power, does not satisfy the principle of legality. The Court observed that the principle of legality requires both identification of the source of power and the functionary responsible for its exercise. The Court also commented that the lack of clarity about whether it is the prosecutor, DPP, a functionary within the NDPP's office, or the NDPP herself who exercises decision-making power is problematic. The Court further observed that designating the Director-General as the 'Central Authority' does not resolve the issue, as there is no law that makes such designation and the DG's role involves no decision-making power. The Court emphasized that whether the Minister has acted within the realms of his authority in any given case will depend on the specific circumstances of that extradition request, and he cannot act in a manner that undermines prosecutorial independence. The Court also noted that allowing both the executive and the NPA to exercise the power would lead to South Africa 'speaking with two voices' in its foreign affairs, which is undesirable. Finally, the Court observed that extradition proceedings are sui generis and distinct from criminal proceedings – their purpose is not to adjudicate guilt or innocence but to determine whether a person should properly stand trial in another state.

This case clarifies the constitutional allocation of powers between the executive and the National Prosecuting Authority in relation to outgoing extradition requests. It establishes that while the NPA has exclusive authority to make prosecutorial decisions, the power to request extradition from a foreign State is an executive function that falls within the Minister's domain. The judgment is significant because it resolves an inconsistency between the high courts (the Gauteng Division in this case and the Western Cape Division in Spagni). It affirms the principles of separation of powers, the doctrine of legality, and the executive's primary responsibility for conducting foreign relations under the Constitution. The case also demonstrates how customary international law, constitutional provisions, and domestic legislation interact to define the limits of state power. The decision has practical implications for how extradition requests are processed and ensures clarity on which official has the legal authority to make such requests on behalf of South Africa.