Britton v Minister of Justice and Correctional Services and Others

Joyce Seaberry Britton, a United States citizen and former attorney in Illinois, was charged in the USA with multiple counts of tax evasion, theft by deception, and related offences committed between 1999 and 2002. After allegedly defrauding the State of Illinois of approximately $4.1 million and evading income tax, she fled to South Africa in 2002. The USA sought her extradition under the Extradition Act 67 of 1962 pursuant to the bilateral extradition treaty between South Africa and the USA. A formal extradition request was made in 2017, the Minister of Justice issued a notification under s 5(1)(a) of the Act, and a magistrate issued a warrant for her arrest. Ms Britton was arrested in October 2017 and released on bail. In 2018 she challenged the constitutionality of s 5(1)(a), the Minister’s notification, and the warrant. While her challenge was pending, the Constitutional Court in Smit v Minister of Justice and Correctional Services declared s 5(1)(a) unconstitutional with effect from 18 December 2020. Ms Britton contended that this declaration applied retrospectively and rendered her arrest and ongoing extradition proceedings unlawful.

The appeal was dismissed with costs, including the costs of two counsel where so employed. The notice of extradition, warrant of arrest, and arrest of Ms Britton were upheld as lawful.

This case confirms that the Constitutional Court’s declaration of invalidity of s 5(1)(a) of the Extradition Act in Smit operates prospectively only. It provides important guidance on the limits of retrospectivity in constitutional invalidity, particularly in the sensitive context of extradition and international relations. The judgment safeguards the stability of past and pending extradition proceedings initiated under s 5(1)(a) prior to December 2020.