Harksen v President of the Republic of South Africa and Others

Germany (the Federal Republic of Germany) requested the extradition of Jürgen Harksen, a German citizen residing in South Africa, to face charges of serious fraud allegedly committed in Germany. South Africa and Germany had no extradition treaty. Acting under section 3(2) of the Extradition Act 67 of 1962, the President consented in writing to Harksen’s extradition, enabling the Minister of Justice to initiate domestic extradition procedures. A magistrate conducted an extradition enquiry and ordered Harksen’s committal to prison pending the Minister’s decision on surrender. Harksen challenged the constitutionality of section 3(2) and the validity of the President’s consent, arguing that it amounted to an international agreement concluded without compliance with section 231 of the Constitution. The High Court dismissed the constitutional challenges but set aside the committal order on review for evidentiary defects. Harksen appealed to the Constitutional Court on the constitutional issues only.

The appeal was dismissed. Section 3(2) of the Extradition Act was held to be constitutional, and the President’s consent to extradition was valid.

The case clarifies the constitutional relationship between extradition, domestic law, and international agreements in South Africa. It establishes that presidential consent to extradition in the absence of a treaty is a domestic executive act and does not amount to an international agreement under section 231 of the Constitution. The judgment affirms the constitutionality of non-treaty extradition based on comity or reciprocity and delineates the separation between international obligations and domestic extradition procedures.