McCarthy v The Additional Magistrate, Johannesburg and Others

Ann Phyllis McCarthy, a South African and German citizen and educational psychologist, was alleged to have been involved in a conspiracy to murder a United States Attorney in Oregon in 1985. She left the USA before indictment could be served. An unsuccessful extradition application was made in Germany, after which she returned to South Africa in 1988. In 1990, the USA requested her extradition from South Africa. She was arrested on 11 September 1990 on a warrant issued under section 5 of the Extradition Act 67 of 1962. The first warrant was withdrawn the next day and a second warrant was issued. On 22 November 1990, she was discharged because documentary evidence was deficient and the State's request for postponement was refused. Nearly a year later, on 7 November 1991, a third warrant was issued without disclosure to the magistrate of the previous failed extradition attempt. McCarthy was arrested on 8 November 1991. Her plea of res judicata failed in the magistrates' court, on review, and on appeal to the Supreme Court of Appeal in S v McCarthy 1995 (3) SA 731 (A). She then brought an application in the High Court seeking to set aside the third warrant and for an indefinite stay of extradition proceedings on grounds of unreasonable delay, alleging breaches of her constitutional rights under section 25(3)(a) of the Interim Constitution.

• Whether the third warrant of arrest was invalidly issued due to the State's failure to disclose to the magistrate the previous extradition attempts and the appellant's discharge
• Whether the magistrate failed to exercise his discretion properly under section 5 of the Extradition Act 67 of 1962 when issuing the third warrant
• Whether the delay in the extradition proceedings amounted to unreasonable delay entitling the appellant to an indefinite stay under section 25(3)(a) of the Interim Constitution (right to trial within a reasonable time)
• Whether systemic delays in the court system could be attributed to the State or the appellant for purposes of assessing unreasonable delay
• Whether trial prejudice arising from the passage of time justified an indefinite stay of proceedings

Appeal dismissed. The order in the High Court directing the appellant to pay costs was set aside.

The binding legal principles established are: (1) In extradition proceedings, a magistrate's failure to be informed of previous failed extradition attempts does not invalidate a warrant issued under section 5 of the Extradition Act 67 of 1962 where the substantive deficiencies that caused the earlier failure have been rectified and complete evidence is before the magistrate. (2) An accused facing extradition who has been the primary agent of delay through legitimate legal challenges (even if not culpable for those delays) cannot rely on the resulting delay to obtain an indefinite stay of proceedings under the constitutional right to trial within a reasonable time. (3) Systemic delays in the court system, while attributable to the State in a general sense, do not constitute unreasonable delay warranting a stay of proceedings unless the accused shows that average systemic delays for the relevant jurisdiction have been exceeded or that the delays render constitutional rights nugatory. (4) An indefinite stay of criminal or extradition proceedings on grounds of delay is a far-reaching remedy that will seldom be warranted in the absence of significant, specific trial prejudice or extraordinary circumstances; vague and general assertions about fading memories and unavailable witnesses due to passage of time are insufficient. (5) The principles governing unreasonable delay in domestic criminal prosecutions (as articulated in Sanderson) apply equally to extradition proceedings.

Farlam AJA made several obiter observations: (1) He expressly declined to decide whether persons subject to extradition proceedings are entitled to invoke section 25(3)(a) of the Interim Constitution (or section 35(3)(d) of the 1996 Constitution), though he assumed for purposes of the judgment that they were, disagreeing with the magistrate but not finally determining Heher J's view on this point. (2) He noted with approval Heher J's concern that granting a stay in such circumstances would create a perverse incentive for accused persons to use legitimate legal tactics to delay proceedings long enough to eventually escape prosecution altogether. (3) He observed that some of the trial prejudice claimed by the appellant (fading memories, unavailable witnesses) would likely affect the prosecution as well as the defense, and could be adequately addressed by defense counsel at trial emphasizing these points to the jury when arguing reasonable doubt. (4) He cited with apparent approval the American approach in U.S. v Trammell requiring accused persons to show "definite and not speculative prejudice" and specify how missing witnesses would have aided the defense, though he did not finally decide whether South African law required such specificity. (5) He suggested that if the magistrate had refused the third warrant on grounds of the previous failed attempt alone (without substantive deficiency), the State could have successfully reviewed that refusal.

This case is significant in South African extradition law and constitutional criminal procedure for several reasons: (1) It clarifies the extent of disclosure obligations when applying for extradition warrants under section 5 of the Extradition Act, holding that non-disclosure of previous failed attempts is not fatal if the substantive deficiencies have been cured. (2) It applies the Constitutional Court's approach to unreasonable delay in criminal proceedings (from Sanderson and Wild) to extradition proceedings. (3) It establishes that an accused cannot rely on delays caused by her own legitimate legal challenges to obtain a stay of proceedings, even where those challenges were reasonable and not frivolous. (4) It sets a high threshold for indefinite stays based on delay, requiring either extraordinary circumstances or significant, specific trial prejudice beyond general assertions. (5) It addresses how systemic delays in the court system should be treated in delay analysis, holding they are currently excusable unless average delays are exceeded or rights are rendered nugatory. (6) It confirms that costs should not be awarded in criminal or quasi-criminal proceedings like extradition. The judgment balances the rights of persons facing extradition against the State's interest in fulfilling international obligations and preventing abuse of process through strategic delay.