Kouwenhoven v Minister of Police and Others

The appellant, Mr Guus Kouwenhoven, a Dutch citizen resident in Cape Town, was convicted in the Netherlands of complicity in war crimes and sentenced to 19 years’ imprisonment. The Dutch authorities sought his extradition from South Africa. On 8 December 2017 he was arrested in Cape Town pursuant to a warrant issued under s 5(1)(b) of the Extradition Act 67 of 1962 by a Pretoria magistrate, following a request for provisional arrest. He was released on bail and subsequently instituted review proceedings in the Western Cape High Court challenging the lawfulness of the warrant, his arrest, and the extradition process. He alleged, inter alia, that South African officials had undertaken not to arrest him without notice; that the supporting affidavit for the warrant was improperly attested; that the magistrate failed to apply her mind when issuing the warrant; and that the magistrate failed to notify the Minister of Justice as required by s 8 of the Act. The High Court dismissed the review, and the matter came before the Supreme Court of Appeal.

The appeal was dismissed with costs, including the costs of two counsel for the first, second and third respondents.

The case clarifies the requirements for challenging the validity of an arrest effected under a warrant issued in terms of the Extradition Act. It confirms that alleged informal undertakings by officials will not lightly be construed as binding the State in extradition matters, emphasises the high threshold for proving such undertakings, and reinforces the principle that an arrest pursuant to a valid warrant is lawful unless the warrant itself is successfully set aside.