Jürgen Harksen v The President of the Republic of South Africa and Others

The Federal Republic of Germany (FRG) requested the extradition of Jürgen Harksen, a German citizen residing in South Africa, for alleged serious fraud committed in Germany. South Africa and the FRG had no extradition treaty. On 24 May 1995, the President consented in writing under section 3(2) of the Extradition Act, 1962 to the appellant's extradition. The Minister of Justice notified the magistrate who issued an arrest warrant. After an extradition enquiry, the magistrate found sufficient evidence and ordered the appellant's committal to prison pending the Minister's decision on surrender. The appellant challenged the constitutionality of section 3(2) of the Extradition Act and the validity of the President's consent, arguing they violated section 231 of the Constitution which governs international agreements.

• Whether section 3(2) of the Extradition Act is inconsistent with section 231 of the Constitution
• Whether the President's consent under section 3(2) constituted an international agreement requiring Parliamentary approval under section 231(2) and (4) of the Constitution
• Whether the President's consent created enforceable international obligations that would estop South Africa from denying such agreement under the Vienna Convention on the Law of Treaties
• Whether the nature of extradition proceedings is criminal or civil for purposes of costs

The appeal was dismissed. No order as to costs.

Presidential consent under section 3(2) of the Extradition Act, 1962 is a purely domestic act that serves to bring a requested person within the ambit of the Act's procedures. It does not constitute an international agreement as contemplated by section 231 of the Constitution, and therefore does not require Parliamentary approval under section 231(2) or legislative incorporation under section 231(4). The Extradition Act regulates domestic procedures for extradition and does not operate on the international plane to create enforceable international obligations. Section 3(2) is not unconstitutional for failing to expressly incorporate the terms of section 231, as all legislation must be read subject to the Constitution, which is the supreme law. The absence of express reference to constitutional provisions does not render legislation unconstitutional.

The Court left open the question of the interpretation and binding effect in South African law of article 46 of the Vienna Convention on the Law of Treaties, assuming for argument's sake that it reflects customary international law. The Court noted that an international agreement entered into in breach of constitutional provisions governing such agreements would likely constitute a "manifest" violation concerning a law of "fundamental importance" under article 46. The Court confirmed that extradition is in substance a criminal proceeding, with implications adverse to the right to liberty and the presumption of innocence. The Court observed that South Africa's withdrawal from the Commonwealth in 1961 resulted in the lapse of many extradition treaties, and that foreign States were reluctant to enter into new treaties during the apartheid era. The Court noted it was unnecessary to determine whether the res judicata plea raised by respondents was correct given the appeal failed on the merits.

This case clarifies the distinction between international and domestic aspects of extradition proceedings in South African law. It establishes that presidential consent under section 3(2) of the Extradition Act is a purely domestic act that does not constitute an international agreement requiring Parliamentary approval under section 231 of the Constitution. The judgment confirms that the Extradition Act operates on the domestic plane to regulate procedures and protect the rights of persons facing extradition, even when based on reciprocity or comity rather than treaty. It also confirms that extradition proceedings are in substance criminal proceedings for procedural purposes including costs. This decision is important for understanding the scope of executive power in extradition matters and the interplay between international law obligations and domestic constitutional requirements.