THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no:888/2020

In the matter between:
AUGUSTINUS PETRUS MARIA
KOUWENHOVEN

APPELLANT
and
THE MINISTER OF POLICE

FIRST RESPONDENT
THE DIRECTOR OF PUBLIC PROSECUTIONS
(WESTERN CAPE)

SECOND RESPONDENT
THE MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES

THIRD RESPONDENT
THE MAGISTRATE: PRETORIA
FOURTH RESPONDENT
THE MAGISTRATE: CAPE TOWN
FIFTH RESPONDENT

Neutral citation: Kouwenhoven v Minister of Police and Others
(888/2020) [2021] ZASCA 119 (22 September 2021)
Coram:
PONNAN, WALLIS, SCHIPPERS and HUGHES JJA and
KGOELE AJA
Heard:
27 August 2021

Delivered: This judgment was handed down electronically by
circulation to the parties’ representatives by email, publication on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to be 09h45 on 22 September 2021
Summary: Extradition Act 67 of 1962 – validity of arrest in terms of
s 5(1)(b) of the Act – whether officials gave an undertaking not to arrest
the appellant – whether any such undertaking was capable of binding the
State – whether undertaking invalidates an arrest pursuant to an otherwise
valid warrant.
Affidavit in support of application for issue of a warrant of arrest in terms
of s 5(1)(b) of Act – attested before another policeman employed in the
same bureau – Regulation 7 of Regulation governing the administering of
an oath or affirmation under the Justices of the Peace and Commissioners
of Oaths Act 16 of 1963 – whether oath properly administered.
Whether magistrate applied her mind to issue of warrant or 'rubber-
stamped' it – failure to notify the Minister of Justice of issue of warrant in
terms of s 8(1) of the Act – effect.

ORDER

On appeal from: Western Cape Division of the High Court, Cape Town
(Cloete J, Fortuin J concurring, sitting as court of first instance):
The appeal is dismissed with costs, such costs to include the costs of two
counsel in respect of both the first respondent and the second and third
respondents.
Judgment reported sub nom Kouwenhoven v Minister of Police and
Others [2019] 4 All SA 768 (WCC); 2021 (1) SACR 167 (WCC).

JUDGMENT

Wallis JA (Ponnan, Schippers and Hughes JJA and Kgoele AJA
concurring)
[1] Mr Kouwenhoven, the appellant, is a Dutch citizen, at present
resident in Cape Town and a businessman who formerly had significant
business interests in Liberia. On 21 April 2017 he was convicted by the
Court of Appeal of ‘s-Hertogenbosch of repeatedly committing the
offence of complicity in war crimes, and repeatedly violating the Dutch
Sanctions Act, arising out of his involvement in the civil war in Liberia
that raged between 1997 and 2003 and led to the downfall of the then
President of Liberia, Charles Taylor.1 Mr Kouwenhoven was sentenced to
serve a term of imprisonment of 19 years and his conviction and sentence
have been upheld by the Supreme Court of the Netherlands.2 The present

1 His conviction was on the basis that he was a confidante of Mr Taylor and aided and abetted Mr
Taylor’s own crimes during the course of that war. Mr Taylor was subsequently convicted by the
Special Court for Sierra Leone of 11 counts of aiding and abetting war crimes and crimes against
humanity involving acts of terrorism, murder, rape, enslavement and pillage and is serving a term of 50
years imprisonment.
2 He has lodged an appeal to the European Court of Human Rights, which it appears is still pending.
The core legal question in the appeal is:

litigation arises from his endeavours to resist the attempts of the Dutch
government to secure his extradition from this country to serve his
sentence in the Netherlands. This appeal was heard simultaneously with a
related appeal in a case flowing from events occurring subsequent to and
in consequence of the high court's decision in the present case.3 Judgment
in that matter will be delivered at the same time as this judgment.4

[2] On 8 December 2017, Mr Kouwenhoven was arrested pursuant to a
warrant of arrest issued, in terms of s 5(1)(b) of the Extradition Act 67 of
1962 (the Act), by an unidentified magistrate in Pretoria. He was brought
before a magistrate in Cape Town and released on bail on 19 December
2017. On 31 January 2018 he launched the present review proceedings
against the Minister of Police as first respondent; the Director of Public
Prosecutions (Western Cape)(the DPP), as second respondent; the
Minister of Justice and Correctional Services (the Minister of Justice), as
third respondent; the Pretoria magistrate as the fourth respondent; and an
unidentified magistrate in Cape Town who was appointed to conduct an
extradition enquiry in terms of s 9 of the Act, as fifth respondent.

[3] The aim of the review was to obtain declaratory orders that the
decision to arrest him and the arrest itself had been unlawful and that the
conduct of the extradition enquiry was unlawful and invalid. The relief
underwent some minor amendment in the course of proceedings and in its
final form read as follows:

'Did the Court of Appeal err in rejecting the defence’s submission that the amnesty scheme approved
by Charles Taylor on 7 August 2003 prevented the prosecution of the defendant in the Netherlands for
the
crimes
with
which
he
had
been
charged?'
(See:
http://www.internationalcrimesdatabase.org/Case/3309/The-Public-Prosecutor-v-Guus-Kouwenhoven/)
3 Director of Public Prosecutions, Western Cape v Kouwenhoven; Kouwenhoven v Director of Public
Prosecutions, Western Cape and Others [2021] 1 All SA 843 (WCC); 2021 (1) SACR 579 (WCC).
4 Kouwenhoven v Director of Public Prosecutions, Western Cape and Others [2021] ZASCA 120.

‘1. Declaring that the Applicant has been brought unlawfully before the Fifth
Respondent, and that any future appearance before the Fifth Respondent and any
consequences thereof in relation to the proceedings arising from his arrest of 8
December 2017 are unlawful and invalid.
2.
2.1. Declaring that the decision to issue the warrant for the arrest of the Applicant . . .
issued by the Fourth Respondent on 6 December 2017 in terms of section 5(1)(b) of
the Extradition Act . . . was unlawful and invalid;
2.2. Declaring that the warrant is unlawful and invalid;
2.3. The warrant is reviewed and set aside.
3. Declaring that the decision to arrest and the arrest of the Applicant on 8 December
2017 was:
3.1. Inconsistent with the Constitution . . .;
3.2. Unlawful and invalid.
4. The arrest and/or detention of the Applicant during the following periods is
declared to be unlawful and unconstitutional;
4.1. From 8 December 2017 until 18 January 2018; and
4.2. From 18 January 2018 until the date of judgment in this application.
5. . . .
6.
6.1. Declaring that the Third Respondent’s decision to issue the ‘notification by the
Minister of Justice and Correctional Services under Section 5(1)(a) of the Extradition
Act . . . in relation to the Applicant, dated 22 February 2018 . . . was unlawful and
invalid.’

[4] The review was opposed jointly by the two Ministers and the DPP,
but the magistrates abided the decision of the court. It was heard by a full
bench consisting of Fortuin and Cloete JJ and dismissed on
19 September 2019 in a judgment by Cloete J. Leave to appeal was
refused, but it was subsequently granted by this court.

The background

[5] The relationship between South Africa and the Kingdom of the
Netherlands in regard to extradition is governed by the European
Convention on Extradition (the Convention). Under Article 12 it provides
for requests for extradition and under Article 16(1) for requests for the
provisional arrest of the person sought to be extradited. Article 16
provides that:
'In case of urgency the competent authorities of the requesting Party may request the
provisional arrest of the person sought. The competent authorities of the requested
Party shall decide the matter in accordance with its law.'
A provisional arrest, if sought and granted, is sufficient to set the stage
for an extradition enquiry in terms of s 9(1) of the Act, but the arrest falls
away if a request for extradition is not forthcoming within time limits
specified in Article 16. However, once the request for extradition is
received, no further arrest is necessary and the extradition enquiry
proceeds to determine whether the person in question qualifies for
extradition.

[6] The warrant of arrest issued by the fourth respondent was issued
after receipt of a request for Mr Kouwenhoven's provisional arrest on
22 August 2017. An earlier request for his extradition received on
7 July 2017 and a request for his provisional arrest received on
21 July 2017, had been returned as not being in accordance with the
requirements of the Convention and the Act. The warrant was issued on
the basis of an affidavit sworn by Warrant Officer van der Heever of the
Pretoria National Central Bureau of Interpol (Bureau). He is one of two
police officers stationed at the Bureau dealing with extradition matters.
Other desks deal with drugs, fraud and general matters.

[7] The issues have undergone some refinement and four grounds for
invalidity of the warrant and the arrest remain and were pursued in this
court. Chronologically they were that:
(a)
In May 2017 Mr Kouwenhoven's attorney, Mr Eisenberg, spoke
separately to W.O. van der Heever and Mr van Heerden, the Principal
State Law Advisor, International Legal Relations in the Department of
Justice and Constitutional Development. It was contended that in these
telephone conversations the relevant authorities separately and
independently undertook that Mr Kouwenhoven would not be arrested
pursuant to a provisional request under Article 16(1) and would be
afforded prior notice before action was taken against him. It was alleged
that these undertakings created a right, or at least a legitimate expectation,
that the authorities were obliged in law to honour. Their breach rendered
his arrest and all proceedings consequent thereupon invalid and unlawful.
(b) The affidavit of W.O. van der Heever was improperly attested before
a colleague of his at the Bureau, Sergeant von Hagen, and was therefore
invalid. This rendered the issue of the warrant invalid as it was not based
on any evidence.
(c) The magistrate who issued the warrant did not apply her mind to
whether the warrant should properly be issued, but instead 'rubber-
stamped' it and this rendered it invalid.
(d) After issuing the warrant the magistrate did not comply with her
obligation in terms of s 8 of the Act to furnish the Minister of Justice with
particulars relating to the warrant and this rendered it invalid.
On the basis that the issue of the warrant and Mr Kouwenhoven's arrest
were unlawful on one or more of these grounds, it was contended that the
entire process was invalid and he could not properly have been brought

before the fifth respondent for the purpose of an extradition enquiry in
terms of the Act.5

[8] An entirely separate issue arose from the then Minister of Justice
issuing a notification under s 5(1)(a) of the Act on 22 February 2018.
That section provided that the magistrate to whom such a notification was
sent was obliged to issue a warrant for the arrest of the person whose
extradition was sought in order for them to be brought before a magistrate
under s 9 of the Act. A number of factual and legal arguments were
advanced in relation to the validity of this notification. However,
whatever the relevance of the point at an earlier stage of these
proceedings, by the time it reached this court it was entirely academic.
Not only had no warrant been issued in terms of the notification, but the
Constitutional Court had declared s 5(1)(a) invalid with immediate
effect.6

[9] In his supplementary founding affidavit Mr Kouwenhoven said
that the issuing of this notice 'makes no sense whatsoever'.  That was
plainly correct. Nonetheless, he persisted with the argument that the
notice should be declared invalid on two grounds. The first was that if the
arrest in issue in this case were set aside the Minister might seek to
trigger a further arrest by sending his notification to an appropriate
magistrate. That contention was far-fetched, given that the section, and
therefore the power of the magistrate to act on the notification, has been
declared to be unconstitutional. No magistrate would issue a warrant in
the face of that decision. The second ground was a contention that Mr
Kouwenhoven was entitled to know whether the Minister's actions were

5 Reliance was placed on Ebrahim v S 1991 (2) SA 553 (A).
6 Smit v Minister of Justice and Correctional Services and Others [2020] ZACC 29; 2021 (1) SACR
482 (CC); 2021 (3) BCLR 219 (CC).

unconstitutional. Two judgments were cited in support of this
proposition.7 Neither was in point. The first, Pheko in the Constitutional
Court, required a decision on the merits in order to determine whether the
applicants were entitled to appropriate restitutionary relief. The second,
Buthelezi in this court, was concerned with the issue of undue delay in the
issue of visas and was a matter likely to arise again in the future. The
arguments arising from the Minister's actions under s 5(1)(a) were plainly
moot and it is unnecessary to say any more about them.

[10] Before
turning
to
the
separate
grounds
upon
which
Mr Kouwenhoven challenged the validity of his arrest it is necessary to
say something about the onus of proof and the approach the court must
take to disputes of fact on the papers. It is trite that an arrest without a
warrant is an interference with liberty and that the onus rests on the
arrestor to justify it.8 Where an arrest takes place in terms of a warrant a
judicial act has intervened and unless the validity of that judicial act can
be assailed the existence of the warrant justifies the lawfulness of the
arrest. The police officer in possession of a warrant of arrest is not
obliged, over and above producing the warrant and showing that they
acted in terms of it, to prove that the warrant was validly issued. It is for
the party challenging the warrant to show why it should be set aside. That
is why these proceedings were brought by way of judicial review.
Contrary to Mr Kouwenhoven's heads of argument, they are not
proceedings by way of habeas corpus. The analogy counsel sought to
draw between these proceedings and an arrest in admiralty is also not apt.
In admiralty the onus of justifying the arrest remains throughout on the

7 Relying on Pheko and Others v Ekurhuleni Municipality (Socio-Economic Rights Institute of South
Africa as Amicus Curiae) [2011] ZACC 34; 2012 (2) SA 598 (CC) (Pheko) para 34 and Buthelezi v
Minister of Home Affairs and Others [2012] ZASCA 174; 2013 (3) SA 325 (SCA) (Buthelezi) para 4.
8 Minister of Law and Order and Others v Hurley and Another 1986 (3) SA 568 (A) at 589D-H.

applicant for the arrest, irrespective of the form of the proceedings in
which the arrest is challenged. The Plascon-Evans rule is applied to
determine whether the undisputed evidence on behalf of the applicant for
arrest, when taken together with the respondent's evidence, discharges the
onus. If it does not it is always open to the applicant to seek a reference to
oral evidence, but given the nature of admiralty proceedings it is unusual
for courts to accede to such a request. Here the justification for the arrest
lies in the existence of the warrant and it is the challenge to the warrant
that is relevant. On that the onus rested on Mr Kouwenhoven. Even had
the onus rested on the respondents that would not have affected matters,
because the case would still have had to be decided on the basis of the
undisputed evidence of Mr Kouwenhoven, read together with the
respondents' version.9

The undertaking issue
[11] On 2 May 2017, Mr Eisenberg spoke on the telephone to
W.O. van der Heever. The following day he spoke to Mr van Heerden.
After these conversations he wrote to W.O. van der Heever and
Mr van Heerden. The founding affidavit relied on these letters in support
of an allegation that each of Mr van Heerden and W.O. van der Heever
had given 'a clear and unequivocal undertaking' that Mr Kouwenhoven
'would not be arrested on the basis of any provisional arrest warrant or
without notice'. The heads of argument characterised this as a binding
agreement between him and the South African authorities, alternatively a
non-binding undertaking by the authorities that had to be observed in
accordance with Constitutional norms.

9 Ngqumba en ń Ander v Staatspresident en Andere; Damons NO en Andere v Staatspresident en
Andere; Jooste v Staatspresident en Andere 1988 (4) SA 224 (A) at 259H-263D; President of the
Republic of South Africa and Others v M & G Media Ltd 2011 (2) SA 1 (SCA) paras 13 and 14.

[12]  The underlying premise of these contentions was that, if such an
undertaking was given, its breach invalidated the warrant and
Mr Kouwenhoven's arrest pursuant thereto. The heads of argument were
drafted on the footing that an undertaking had been given and breached.
They examined whether the claim that Mr Kouwenhoven had become a
flight risk was a legitimate reason for the breach. A separate argument
that the issue of the warrant was invalidated by non-disclosure of the
undertakings to the Pretoria magistrate was not pursued. My prima facie
view is that the premise is faulty. The issue of a warrant is a judicial act
authorising an arrest. The magistrate was not party to any undertakings
and if the magistrate concluded on the papers that a proper case was made
for the issue of a warrant, I do not see why that decision would be
invalidated by the fact that the two officials were acting in breach of an
undertaking. They would not be acting in good faith, but 'the worst
motive does not render an otherwise lawful arrest unlawful'.10 Given the
conclusion to which I come on the factual basis for these contentions it is,
however, unnecessary to say more on this aspect of the case.

[13] To place these conversations and the correspondence that followed
in context, they occurred less than two weeks after Mr Kouwenhoven's
conviction and sentence. No request for his extradition, or provisional
arrest, had been received from the Netherlands, although the Bureau had
received an Interpol Red Notice for assistance in securing his arrest. That
indicated
that
the
Dutch
authorities
intended
to
apply
for
Mr Kouwenhoven's extradition and would be seeking a provisional arrest
in conformity with national laws and applicable treaties. The
conversations involved different people and were entirely separate from

10 Tsose v Minister of Justice 1951 (3) SA 10 (A) at 17G-H; National Director of Public Prosecutions v
Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) para 37

one another. Any agreements reached or undertakings given were reached
or given separately. They cannot be treated cumulatively

[14]  Mr Eisenberg had not previously met or communicated with
W.O. van der Heever when he spoke to him on 2 May 2017. Later that
day he wrote as follows:
'If I may, let me confirm your advices of this morning:
(i) An INTERPOL "Red Notice" has already been posted for our client, Mr Gus
Kouwenhoven;
(ii) Our client has no intention whatsoever of departing the Republic of South Africa until the
present matter is fully resolved;
(iii) You have already received a Provisional Request from the authorities of The Netherlands
for the arrest of our client;
(iv) You have advised the Dutch authorities that the South African prosecutorial and police
authorities will not be acting on their Provisional Request but a formal request for our client’s
extradition to The Netherlands has been made and is expected within the next number of
months;
(v) Our client shall not be arrested pursuant to the Provisional Request or in the normal course
but proper and dignified arrangements for handing our client over for our client’s first
appearance on the basis of such formal request will be made between us.'
In oral argument counsel submitted that the undertaking was contained in
the final paragraph of this letter.

[15] Did this letter on its terms embody an agreement or undertaking as
alleged? In my view it did not. It made no reference to an agreement or
undertaking. Nor did it ask for confirmation that an agreement had been
reached or an undertaking given. The first item confirmed a matter of fact
and the second involved a statement by Mr Eisenberg of his client's
alleged attitude. It is common cause that the third paragraph was incorrect
as a matter of fact, because no such request had been received. There
appears to have been some miscommunication between Mr Eisenberg and
W.O. van der Heever in this regard. The Interpol Red Notice under a

heading 'Action to be Taken' recorded that the Dutch authorities wanted
Mr Kouwenhoven to be arrested as his extradition was to be sought. The
notice went on to say that:
'This request is to be treated as a formal request for provisional arrest, in conformity
with national laws and/or the applicable bilateral and multilateral treaties.'
If Mr Eisenberg thought that Interpol in the Netherlands represented the
Dutch authorities, then from the perspective of a possible extradition this
was mistaken. It seems probable that he construed W.O. van der Heever's
reference to the Interpol notice as a request from the Dutch authorities,
possibly via Interpol. As W.O. van der Heever had not been in touch with
the Dutch authorities in regard to a request for extradition and such
requests are routed through the Department of International Relations and
Co-operation via the Department of Justice and Correctional Services he
could not have been referring to a request from the Dutch authorities in
relation to extradition.

[16]  The following paragraph built upon this. There had been no direct
communication between W.O. van der Heever and the Dutch authorities.
He explained in his affidavit that he had told Interpol in The Hague that it
would be best to wait for the Netherlands request for extradition rather
than seek Mr Kouwenhoven's arrest on a provisional basis, because that
would facilitate the extradition and there did not appear to be any
evidence of urgency at the time. This was not challenged in
Mr Kouwenhoven's replying affidavit. In those circumstances it was
undoubtedly the case that at that time W.O. van der Heever was not
intending to seek Mr Kouwenhoven's immediate arrest on the basis of the
Interpol Red Notice and he said that this was what he told Mr Eisenberg.

[17]   The fact that W.O. van der Heever told Mr Eisenberg that this
was the factual position at the time of their conversation did not translate
into an agreement or undertaking not to arrest Mr Kouwenhoven if a
proper request for his provisional arrest in terms of Article 16 of the
Convention was received. Nor could it be construed as an undertaking
that he would not be arrested if such a request was received.

[18]  Mr Eisenberg's affidavit in support of the application took the
matter
no
further.
Concerning
his
conversation
with
W.O.
van der Heever, he gave no evidence that would have put a different gloss
on the conversation and the letter. All he did was assert that an
undertaking was given, but that was a conclusion that could be drawn
only if a full description of the purpose, nature and contents of their
discussion had been given. None was. He filed a further affidavit together
with Mr Kouwenhoven's replying affidavit and at a time when he knew
what W.O. van der Heever had to say. Even then he did not deny the
accuracy of the latter's recollection of their conversation. The furthest he
was willing to go was to say that his approach 'was serious and formal in
nature' and that it 'should have been apparent to W.O. van der Heever that
I sought to conclude a binding arrangement with him'. It is not good
enough to say that someone should have realised that a binding
arrangement – one enforceable in a court of law – was being sought. That
had to be stated in the conversation and then confirmed expressly in the
letter. That was not done.

[19] There can be little doubt that if Mr Eisenberg had told
W.O. van der Heever that he was not merely in search of information, but
was seeking to conclude an agreement, or extract an undertaking, that his
client would not be arrested if the Dutch extradition authorities asked for

his provisional arrest, the entire tenor of the conversation would have
been different. Both parties were aware that an application for extradition
was likely to be made. Both knew that in order to commence an
extradition enquiry Mr Kouwenhoven would have to be arrested in terms
of s 5 of the Act. A request by Mr Eisenberg that W.O. van der Heever
would not act upon a proper request by the Dutch extradition authorities
for Mr Kouwenhoven's provisional arrest in terms of the Convention
would have been extremely far-reaching. It is impossible to conceive of
an experienced police officer agreeing to it in a telephone conversation
with an attorney who was unknown to him. At the very least a court
would require convincing and direct evidence of the contents of the
conversation before accepting that the police officer had concluded such
an agreement or furnished such an undertaking. There is no such
evidence, because Mr Eisenberg did not provide it.

[20] Strictly speaking that conclusion renders it unnecessary to consider
whether such an agreement or undertaking could ever be treated as
binding. However, it is appropriate to express my reservations concerning
the proposition that an official such as W.O. van der Heever had authority
to conclude such an agreement, or give such an undertaking. Extradition
between the Netherlands and South Africa is a matter of diplomatic
relations between the two states governed by a formal convention. There
can be no doubt that the Convention has 'become law' in South Africa.11
No authority was cited for the proposition that a police officer, charged
with the responsibility of implementing requests in terms of the
Convention, is entitled to conclude agreements or give undertakings that
would bind the South African government to disregard a valid request for

11 President of the Republic of South Africa v Quagliani; President of the Republic of South Africa and
Others v Van Rooyen and Another; Goodwin v Director-General, Department of Justice and
Constitutional Development and Others [2009] ZACC 1; 2009 (2) SA 466 (CC) (Quagliani) para 46.

a person's provisional arrest under the Convention. I am not here
speaking of the exercise of a discretion in the exercise of his lawful duties
in relation to a request under the Convention, such as determining
precisely when and how an arrest is to be effected, but of an agreement or
undertaking that would preclude him and the State from acting in terms of
the Convention. At the end of the argument, I remained unconvinced that
any such authority vested in W.O. van der Heever.

[21] I turn then to the alleged agreement with, or undertaking furnished
by, Mr van Heerden. On the same day as Mr Eisenberg's conversation
with
W.O. van der Heever,
Mr
Kouwenhoven's
senior
counsel,
Mr Katz SC, spoke to Mr van Heerden. The founding affidavit placed no
reliance on this conversation, no doubt because it was apparent that
Mr Katz would thereby be rendered a potential witness. In terms of the
rules governing the advocates' profession that would have required him to
withdraw and not act in the litigation. In an endeavour to circumvent the
problem, Mr Eisenberg, spoke to Mr van Heerden on the following day.12
After he had done so he sent the following letter:
'Let me confirm your advices of this morning, and as you have conveyed this to
advocate Anton Katz SC:
(i) It is correct that an INTERPOL ‘Red Notice’ has been issued and posted for our
client, Mr Guus Kouwenhoven;
(ii) While you have not (contrary to the advices of Warrant Officer Wimpie van der
Heever, INTERPOL) received a Provisional Request for our client’s arrest for
extradition, you have received an email from the Dutch Police Liaison Officer for

12 This did not dispose of the fact that Mr Katz was a material witness and merely exacerbated the
problem because Mr Eisenberg was then the only the witness to the conversations with both W.O. van
der Heever and Mr van Heerden. That he should have withdrawn and ceased to act, at least once it was
apparent that there were disputes over the tenor and effect of those conversations, is clear. Hendricks v
Davidoff 1955 (2) SA 369 (C); Elgin Engineering Co (Pty) ltd v Hillview Motor Transport 1961 (4) SA
450 (N) at 454F-H.

Southern Africa advising you that our client was sentenced to 19 years in Holland (in
absentia);
(iii) You have consulted with INTERPOL and have reached an agreement that our
client will not be arrested should you receive a Request for Provisional arrest’
(iv) You understand that the Dutch authorities are busy with the drafting of an
Extradition Request and you will advise either advocate Katz or myself once you have
received such a request;
(v) I reiterate that if you receive a compliant Extradition Request from the Dutch
authorities arrangements for handing our client over for his first appearance on the
basis of such Request will first be made between us, especially in light of our client’s
age and medical condition.'
In oral argument counsel relied on the third and fifth paragraphs of this
letter in support of the alleged agreement or undertaking.

[22] Reliance was also placed on an email Mr van Heerden sent on
29 June 2017 to Mr Eisenberg, informing him that an electronic copy of
an extradition request and request for the provisional arrest of Mr
Kouwenhoven had been received and the original would be forwarded
through diplomatic channels. Mr Eisenberg responded the same day as
follows:
‘On the basis of our communications let me confirm with you the following:
(i) A decision has been made by the South African authorities, including the
Department of Justice and SAPS, that a Provisional Request for the arrest of our client
Mr Guus Kouwenhoven, will not be entertained.
(ii) . . .
(iii) Based on my brief discussion with yourself this afternoon, it is unlikely that an
Extradition Request, fully compliant with the formalities, will be received from the
Dutch authorities prior to 27 July 2017.’
Manifestly this letter added nothing to the enquiry. If an agreement had
been concluded, or an undertaking given, on 3 May 2017 this letter did
not alter it. If no agreement was concluded and no undertaking given, this

letter did not create one. It referred to a decision taken by the South
African authorities, not to an agreement with, or an undertaking given to,
Mr Kouwenhoven. Even assuming in the latter's favour that such a
decision had been taken – something that was disputed – there was
nothing to stop the South African authorities from changing their minds.
No right or expectation by Mr Kouwenhoven would be affected thereby.

[23] Whether the letters of 2 and 3 May 2017 could serve as proof of
either an agreement or the furnishing of an undertaking by either
W.O. van der Heever or Mr van Heerden is doubtful. Mr Kouwenhoven
deposed to the founding affidavit, but he had not been a party to either
conversation. Mr Eisenberg deposed to a supporting affidavit (which we
were told in the practice note need not be read) in which he gave no
details of the conversations he had with either W.O. van der Heever or
Mr van Heerden. He purported to confirm that he received undertakings
that Mr Kouwenhoven would not be arrested pursuant to any provisional
request for his arrest and would not be arrested without notice to his legal
representatives. This took the matter no further. When Mr Eisenberg
delivered an affidavit together with the replying affidavit, he said that he
was confirming the replying affidavit and the descriptions in that affidavit
of the telephone discussions that he had with the two officials But those
'descriptions' added nothing to the founding affidavit. Mr Kouwenhoven
said in regard to the conversation with Mr van Heerden that the letter
made it plain that it was confirming the conversation in question. But that
merely throws one back on the letter as the only evidence proffered in
support of the alleged agreement or undertaking. It is entirely lacking in
any detail as to the terms of the two conversations or how they were said
to give rise to an agreement or undertaking.

[24]  Like the letter to W.O. van der Heever the letter to
Mr van  Heerden does not refer to an agreement or an undertaking. Nor
did it seek confirmation of an agreement or undertaking. It referred to the
earlier conversation between Mr Katz and Mr van Heerden, but neither
Mr Katz nor Mr Eisenberg deposed to an affidavit saying that they asked
Mr van Heerden to enter into an agreement or give an undertaking.
Mr Eisenberg's affidavit was silent on the point. On the face of it these
conversations were merely seeking information on behalf of their client
and were not directed at concluding agreements or obtaining
undertakings. Had those been proffered the letters would have been
couched in markedly different terms.

[25] The two passages on which counsel relied were even less
indicative of an agreement having been reached between Mr Eisenberg
and Mr van Heerden, or an undertaking having been given, than the
passage relied on in the other letter. The statement that Mr van Heerden
had consulted 'with INTERPOL' – a reference to W.O. van der Heever –
and that the two of them had agreed not to arrest Mr Kouwenhoven if
they received a request for a provisional arrest, even if correct, would not
amount to an agreement with Mr Kouwenhoven, or an undertaking to
him. It would merely reflect the current thinking of the two officials
without any indication that, when, and if, a request for a provisional arrest
was made, they would decline to act upon it. There appears to have been
an assumption at the time that a formal request for Mr Kouwenhoven's
extradition was imminent and that matters would then proceed on the
basis of that application. As it happened, that is what occurred because a
request for extradition was received on 7 July 2017, but returned because
it did not comply with the provisions of the Act. It was only thereafter
that a request was made for a provisional arrest on 21 July and that too

was returned as non-compliant with the requirements for a provisional
arrest. A compliant request was only received on 22 August 2017.

[26] The dispute over a provisional arrest under Article 16 of the
Convention, as opposed to an arrest pursuant to an extradition request
under Article 12, was largely academic. As pointed out earlier, provided a
formal request for extradition is timeously received, there is no need in
order to hold an extradition enquiry under s 9 of the Act, for a person
arrested under Article 16 to be re-arrested. The enquiry proceeds on the
basis of the initial arrest. Provided a request for extradition was
forthcoming Mr Kouwenhoven's arrest was inevitable. At most the
enquiries to W.O. van der Heever and Mr van Heerden could have been
directed at forestalling the need to prepare a bail application as a matter
of urgency. Reference to the papers in the bail application reveal that it
was in fact prepared well in advance, probably around 12 June 2017,
which was the date on a report about prison conditions, commissioned
especially for the purpose of the bail application. The founding affidavit
in the bail application was signed four and a half hours after Mr
Kouwenhoven's arrest and ran to 37 pages and 135 paragraphs, with a
number of medical reports and the report on prison conditions annexed.

[27] There is no need to repeat what was said in para 19 about the
reaction of W.O. van der Heever to any direct request to agree not to
arrest Mr Kouwenhoven, or to give an undertaking not to do so. The same
improbability of an agreement being concluded or an undertaking given,
applied equally in the case of Mr van Heerden. So do my reservations
about the authority to conclude an agreement, or give an undertaking. In
my view, as with the earlier letter the one addressed to Mr van Heerden
does not on its terms support the claim of an agreement or an undertaking

not to arrest Mr Kouwenhoven pursuant to a proper request for his
provisional arrest. For those reasons, which differ somewhat from those
of the high court, the first ground of attack on the validity of
Mr Kouwenhoven's arrest was correctly rejected by the high court.

The attack on the warrant of arrest
[28]   An initial application to strike out all the answering affidavits on
behalf of the respondents, save that filed by Mr Burke of the DPP's office,
on the grounds that they were deposed to before police officers was not
pursued. Instead, the attack was limited to one on the attestation of
W.O. van der Heever's affidavit by Sergeant van Hagen. The complaint
was that, as she was a police officer employed in the same office as the
deponent, she had an interest in the litigation that disqualified her from
acting as commissioner of oaths. The basis for this was regulation 7(1) of
the regulations governing the administration of oaths and affirmations
(the regulations),13 which provides in terms that a commissioner of oaths
shall not administer an oath or affirmation relating to a matter in which
they have an interest. Under regulation 7(2) that provision does not apply
to an affidavit or declaration mentioned in the schedule to the regulations.
Item 2 of the Schedule provides:
A declaration taken by a commissioner of oaths who is not an attorney and whose
only interest therein arises out of his employment and in the course of his duty.'
Provisions in these terms have been included in the relevant regulations
for many years, both under the present statute and its predecessor.14

13 Regulations Governing the Administering of an Oath or Affirmation published in terms of s 10 of the
Justices of the Peace and Commissioner of Oaths Act 16 of 1963 under GN R1258 of 21 July 1972, as
amended published in GG 3619 of that date.
14 The Justices of the Peace and Commissioner of Oaths Act 16 of 1914. See Royal Hotel, Dundee and
Others v Liquor Licencing Board, Area No 26; Durnacol Recreation Club v Liquor Licencing Board,
Area No 26 1966 (2) SA 661 (N) (Royal Hotel, Dundee).

[29]  Regulation 7(1) and its predecessors have been the subject of
judicial interpretation. The cases hold that the regulation requires
commissioners to be independent in the exercise of their duties.15 An
interest has been held to be a pecuniary interest, or some interest by
which the legal rights or liabilities of the commissioner are affected.16 In
Benjamin17 affidavits attested before the Deputy Master in litigation
involving the Master and his staff were held to be inadmissible as
contravening the regulation, but the judgment relied heavily on the
decision in Brummer18 for this conclusion. The judge's attention had been
drawn to the fact that Brummer had been overruled by this court,19 but he
did not mention this. The decision cannot be taken as expanding the
scope of what is meant by an 'interest' under the regulation.

[30] The usual instances in which the commissioner has been held to
have an interest are cases where an affidavit has been attested before an
attorney acting in the litigation or proceedings for which the affidavit is
tendered, or before that attorney's partner or agent. These cases overlap
with a rule of evidence derived from English law that an affidavit
deposed to before such an attorney is inadmissible.20 In Papenfus21 the
court extended the exclusionary rule of evidence to an in-house legal
adviser for a board in regard to affidavits deposed to by staff of the board
in litigation to which the board was party.

15 Ibid at 667A.
16 Tambay v Hawa 1946 CPD 866; Louw v Riekert 1957 (3) SA 106 (T) at 111.
17 The Master v Benjamin NO 1955 (4) SA 14 (T)
18 R v Brummer 1952 (4) SA 437 (T) at 439. See also R v Du Pont 1954 (3) SA 79 (T).
19 R v Rajah 1955 (3) SA 276 (A) at 282 and 283.
20 See the cases collected in Royal Hotel, Dundee at 665H-668C and Radue Weir Holdings Ltd t/a
Weirs Cash & Carry v Galleus Investments CC t/a Bargain Wholesalers 1998 (3) SA 677 (E) at 669H-
681E.
21 Papenfus v Transvaal Board for the Development of Peri-Urban Areas 1969 (2) SA 66 (T) at 69H-
70A

[31]  Counsel for Mr Kouwenhoven relied strongly on Papenfus so it is
desirable to examine what it decided and the reasoning of the judge. He
first considered the provisions of the regulations governing the
administration of an oath. Those applicable at the time were the same in
all material respects as the ones at present applicable. His conclusion was
that the regulation did not preclude the legal adviser from acting as
commissioner of oaths because she did not have an interest in the matter
as provided in regulation 7(1). The judge said:22
'The commissioner of oaths in the present case, being a legal adviser to the respondent
Board, has, on the ascertained facts, no 'personal' interest whatever in the fate of these
proceedings, even if it were to be assumed against the respondent that she advised her
employer to resist the applicant's motion, drew the several affidavits now in question
and was therefore 'interested' in the course advised and pursued by her on behalf of
the respondent. Her 'interest' would only arise from the fact of her employment. The
information disclosed justifies the inference that, if she had not been so employed, she
would have had no interest whatever in the outcome of this litigation. …
The regulations should in my view be so interpreted as not to preclude a legal adviser
from acting as a commissioner of oaths in litigation in  which his employer is
concerned. The 'interest' arising is too remote to fall within the general prohibition of
reg. 3, and it is moreover rendered permissible by item 3 of the schedule.'
The approach to the regulations was therefore consistent with other
decisions holding that the regulations did not preclude a salaried
employee of an attorney from acting as a commissioner of oaths in
relation to affidavits deposed to by witnesses in proceedings in which
their employer was the attorney of record for a party.23

[32] In the case of police officers investigating crimes two judgments
holding that they had a disqualifying interest in relation to affidavits

22 Papenfus, ibid,
23 Tambay v Hawa, op cit, fn 15; Royal Hotel, Dundee, op cit, fn 13; S v Van Schalkwyk 1966 (1) SA
172 (T) at 174H-176F.

signed by witnesses in the course of their investigations,24 were overruled
by this court.25 In Royal Hotel Dundee it was said that item 2 in the
schedule to the regulations appeared to cover the case of a police
officer.26 Despite that, in Dyani,27 three affidavits deposed to by police
officers were held to be inadmissible because they had been attested
before commissioners of oaths who were themselves police officers.
Another affidavit was excluded because the commissioner of oaths was a
police officer and employee of the respondent. In excluding them Jafta J
said:
' In this matter the affidavits by Mnyakaza, Mgodeli and Jooste were deposed to by colleagues
of the commissioners of oath who, by virtue of their relations to the deponents, do not meet
the requirement of an independent, unbiased and impartial commissioner. Botoman’s affidavit
is also tainted by the fact that the commissioner of oaths is the employee of the first
respondent and that other respondents were also colleagues of the commissioner. It is quite
clear that all those commissioners could be regarded as having interest in the subject matter of
these proceedings.
It is unclear from the report how closely linked the deponents were to the
commissioners of oaths, or whether the decision was based solely on the
fact that both the deponents and the commissioners were police officers.
The quoted passage suggests that it was a general rule that police officers
could not act as commissioners of oaths in respect of affidavits deposed
to by other police officers or other witnesses in any proceedings where
the Minister of Police was involved. It is also unclear whether the judge
was saying that the attestation was improper, or applying the rule of
evidence in regard to their admissibility, which would have involved a
substantial extension of that rule. There was no reference in the judgment
to regulation 7(2) or to item 2 of the Schedule to the regulations.

24 R v Brummer and R v Du Pont op cit fn 17.
25 R v Rajah, op cit, fn 18.
26 Royal Hotel, Dundee, op cit, fn 13 at 668H.
27 Dyani v Minister of Safety and Security and others [2001] 3 All SA 310 (Tk) para 21.

[33] In Sihlobo,28 after a careful consideration of the regulations, and in
particular regulation 7(2), Pakade J held that Dyani was clearly wrong
insofar as it held that a policeman could not act as a commissioner in
relation to the affidavit of another police officer. That decision was
followed in Van Rooyen.29 It is necessary to resolve the uncertainty in this
regard.

[34]  Commissioners of oaths are persons designated by the Minister of
Justice as such by virtue of their office. The current designation30
includes no fewer than 77 categories of officers, ranging from members
of the National Executive and a number of persons holding office in the
administration of justice (but curiously not judges, although their
secretaries are designated), to the chairperson of management of a
children's home in Pretoria. In terms of s 7 of the statute all of these are
authorised to administer an oath or affirmation or take a solemn or
attested declaration within the area for which they are a commissioner.
Regulation 7(1) precludes a commissioner from performing these
functions 'relating to a matter in which they have an interest'. The
authorities already cited say that this must be a pecuniary interest or an
interest whereby the rights and obligations of the commissioner would be
affected.

[35]  The mere fact of employment by a person having an interest in the
matter has not been regarded as constituting a disqualifying interest, save
in the two cases involving police officers that were overruled in Rajah,

28 S v Sihlobo [2004] JOL 12831 (Tk) paras 10-21.
29 Van Rooyen and Another v The Minister of Police and Others 2019 (1) SACR 349 (NCK) paras 29-
37. It was also followed in an unreported decision of the Gauteng division in Grammaticus (Pty) Ltd v
Minister of Police and Others 50538/2017 dated 12 December 2017, a copy of which was made
available to us by counsel.
30 Designation of Commissioners of Oaths in terms of section 6 of the Justices of the Peace and
Commissioners of Oaths Act 1963 published under GN 903 of 10 July 1998 in GG 19033 of that date.

and now possibly in Dyani. The implications of extending the concept of
an interest in the matter under the regulations to employees would be far-
reaching. Could a judge depose to an affidavit before their secretary, or
the secretary of a colleague, or the registrar of the court? Could they
depose to an affidavit before a magistrate? One merely has to peruse the
list of persons who are appointed as commissioners of oaths to realise the
complexities that would potentially arise if that approach to an interest
were to be adopted. Fortunately it is not the approach adopted by our
courts and Regulation 7(2), read with Item 2 of the Schedule, puts the
matter beyond doubt. If the only interest arises out of the commissioner's
employment and in the course of their duty it does not fall under
regulation 7(1). In that sense regulation 7(2) may not embody an
exception in the usual sense of a provision that cuts down what would
otherwise be the scope of regulation 7(1). Its purpose is rather more to
operate ex abundante cautela by making it clear that the performance of a
commissioner's functions arising out of their employment and in the
course of their duties is not prohibited. To the extent that Dyani decided
otherwise it was incorrect and is overruled.

[36] The facts in this case fall squarely within item 2 of the schedule to
the regulations. Sergeant van Hagen is stationed at the General Desk of
the Interpol bureau in Pretoria and has no involvement in extradition
matters. She had not been involved in the proceedings against Mr
Kouwenhoven and said that she was unaware of the matter and had not
even
heard
her
colleagues
discussing
it.
She
commissioned
W.O. van der Heever's affidavit because she is a police officer and was
readily available to do so. The argument that she had an interest in the
matter disqualifying her from doing so had no merit.

[37] Given the reliance placed on Papenfus it is as well to address the
decision in that case. Contrary to the submissions before us, the court
accepted that the affidavits had been properly commissioned, but then
turned to their admissibility in terms of the rule of evidence already
mentioned. In holding them to be inadmissible it said:31
'The fact that the commissioner is a partner of the deponent, or his servant, or a co-
official, or a junior officer must, in some cases at least, militate against the proper
discharge by the commissioner of his duty. That is the reason for excluding clerks
and  partners of an attorney as commissioners of oaths for affidavits drawn by the
attorney for a party or witness. The reason becomes even more cogent where the
attorney himself happens to be the deponent.
That is closely similar to the situation where officials of an organisation like the
respondent Board have to swear to depositions before a commissioner of oaths who,
as the legal adviser, is their colleague and conceivably their junior colleague. The risk
of the procedure in administering the oath being something less than ideal becomes
too great to be countenanced by the Court. The rule excluding attorneys should be
extended to include legal advisers. If the respondent Board wishes to have affidavits
by its officials attested for court purposes, the attestation should preferably be by a
commissioner unconnected with its organisation, certainly not by its legal adviser.
In my view the attestation by the legal adviser of the affidavits filed by the respondent
is insufficient to render them admissible in evidence. They are struck out.'

[38] There is a fundamental problem with this line of reasoning. Once it
was accepted, as the court did, that the affidavits had been properly
commissioned by the legal adviser, on what basis was it entitled to say
that they were inadmissible? In application proceedings evidence is
presented by way of affidavits. The manner in which affidavits are to be
sworn or affirmed is prescribed under the regulations. An affidavit sworn
in accordance with those regulations is an affidavit for whatever purpose
it is tendered. If it contains inadmissible evidence, such as hearsay, or

31 Papenfus op cit fn 20.

irrelevant matter, it can be struck out, either in whole or in part, but if the
evidence is relevant and otherwise admissible, I fail to see on what legal
basis it can be excluded.

[39] The basis has been said to be a rule of evidence derived from
English law and made applicable in the Transvaal by s 55 of the
Transvaal Evidence Proclamation 1902.32 In turn its foundation lay in two
very specific statutory rules of court. The one said specifically that no
affidavit would be sufficient that was sworn before a solicitor acting for a
party, or an agent or correspondent of the solicitor, or the party
themselves. The second said that if an affidavit would have been
insufficient if sworn before the solicitor, it would be insufficient if sworn
before the solicitor's clerk or partner.33 There are no equivalent provisions
in our law and the limitations on commissioners of oaths acting as such
are those set out in the regulations.

[40] In Royal Hotel, Dundee34 Caney J traced the history of the matter
in Natal and said that from 1937, when the earlier regulations came into
effect, the evidential rule and the regulations had operated side by side,
the one in relation to litigious matters and the other in relation to other
matters. However, the cases he discussed where affidavits were excluded
were all cases where the attorney before whom they had been sworn had
an interest in the matter. Accordingly, there was no need for an evidential
rule to exclude them as they had been sworn before commissioners who
were disqualified. I have not found any reference to such a rule in the
texts on evidence that I have consulted. Papenfus appears to be the first

32 Louw v Riekert 1957 (1) SA 106 (T) at 110H-112B. The researches of Caney J in Royal Hotel,
Dundee suggest that there was a similar rule in Natal under a similar statute.
33 This rule was upheld in Louw v Riekert, ibid, but had been rejected in Geldenhuis Deep Ltd v
Superior Trading Co (Pty) Ltd 1934 WLD 117.
34 Op cit, fn 13 at 666F-670A

case to apply the rule to affidavits properly executed before a competent
commissioner of oaths in accordance with the regulations.

[41]  It seems to me that what was once a rule of evidence is now dealt
with by the detailed provisions of the regulations governing the
commissioning of affidavits. There is nothing in those regulations to
suggest a bifurcation between affidavits in litigious matters and those
prepared for non-litigious purposes. Nor can I discern anything in the
regulations that supports an evidential rule such as that which formerly
applied by virtue of English statutory provisions. So far as I can ascertain
the position in England is simply that solicitors may not act as
commissioners of oaths where they represent a party in proceedings or
where they have an interest in the matter that is the subject of the
affidavit. That is also the situation in South Africa as a result of the
regulations. In my view there was no justification in Papenfus for the
invocation and extension of the old evidentiary rule. There is even less
justification for extending it further to the facts of this case. The
challenge to the commissioning of W.O. van der Heever's affidavit must
fail.

Rubber stamping
[42]   On a proper consideration of the material placed before the
Pretoria magistrate in support of the application for the warrant the issue
of the warrant was justified. Any argument based upon the non-disclosure
of the alleged agreement or undertaking falls away with my rejection of
the contention that there was such an agreement or undertaking. On what
factual basis, then, does the argument depend that the magistrate did not
apply her mind to that material and the provisions of the Act? The answer
is none at all.

[43] The point first emerged in Mr Kouwenhoven's first supplementary
founding affidavit at a stage when the record delivered in response to the
review application did not include W.O. van der Heever's affidavit. The
contention was that there was no affidavit and no oral evidence and
therefore, where the order said that the magistrate acted on 'information
under oath', that was incorrect. For that reason, it was said that the
magistrate simply rubber-stamped the request for a warrant without
applying his or her mind to the matter. This rationale disappeared once
the record was filed thereafter and it was apparent that there was an
affidavit in support of the application. Undeterred, in his second
supplementary founding affidavit Mr Kouwenhoven attacked the issue of
the warrant on the basis of a variety of alleged non-disclosures, the only
one of which pursued in this court being the non-disclosure of the alleged
agreement or undertaking.

[44]  The allegation of rubber-stamping was not repeated on this
occasion. It resurfaced in the replying affidavit in response to a statement
by W.O. van der Heever that the magistrate issued the warrant 'after
considering the application'. This provoked Mr Kouwenhoven to say the
following:
'All the indications are that, in fact, the Pretoria magistrate did not consider the
application and simply "rubber-stamped' the draft warrant.
In this regard the absence of any affidavit from the Pretoria Magistrate is telling.
The Pretoria Magistrate clearly rubber-stamped what W.O. van der Heever placed in
front of her without bothering to read the application. Her rubber-stamping occurred
on the same day.'

[45] No factual foundation existed for any of these allegations. The
heads of argument sought to elide the original allegation of rubber-

stamping, based on the incorrect belief that there was no affidavit before
the magistrate, with an allegation based on the fact that the magistrate
abided the decision of the court in the application and did not deliver an
affidavit. But there was no reason for the magistrate to file an affidavit,
because there was no factual matter for her to deal with.

[46]  The heads of argument suggested that the magistrate 'did not
notice the errors in the commissioning of the affidavit'. The 'errors' to
which this referred were that Sergeant van Hagen did not print her full
name below the declaration. She gave her name and rank, which
demonstrated that she was ex officio a commissioner of oaths, as required
by regulation 4(2)(b).35 The failure to give her full names was irrelevant
and, as the papers in this case show, occurs frequently in the attestation of
affidavits. The addition of 'Estie' before 'Van Hagen' would not have
made the slightest difference and substantial compliance was all that was
necessary.36 Whether the magistrate noticed the omission was neither
here nor there. An oversight in that regard would not have affected the
validity of the decision to issue the warrant. The other fact advanced in
the heads of argument as evidence of 'rubber-stamping' was the failure by
the magistrate to give notice to the Minister of Justice in terms of s 8(1)
of the Act. How, a failure to attend to an administrative task after issuing
a writ was evidence of a failure to consider the issues relevant to the issue
of the writ was not explained.

[47]  The decision to issue a warrant is a judicial decision and there is
no reason to think that it was taken other than properly. There was no

35 The regulation requires the commissioner to 'state his designation and the area for which he holds his
appointment or the office held by him if he holds his appointment ex officio.' Saying that she was a
sergeant in the South African Police Service satisfied this requirement.
36 Noordkaaplandse Ko-op Lewendehawe Agentskap Bpk v Van Rooyen and Others 1977 (1) SA 403
(NC) at 408H.

reason for the magistrate to deliver an affidavit justifying her decision
and saying that she applied her mind to the matter before issuing the
warrant. A failure to deliver an affidavit when there is nothing to respond
to was not a basis for this argument. There was no merit in the 'rubber-
stamping' point.

Section 8 of the Act
[48] Section 8(1) of the Act provides that
‘8 Magistrate to furnish Minister with particulars relating to issue of certain
warrants
(1) Any magistrate who, under paragraph (b) of subsection (1) of section 5 or under
section 7, issued a warrant for the arrest or further detention of any person other than
a person alleged to have committed an offence in an associated state, shall forthwith
furnish the Minister with particulars relating to the issue of such warrant.’
The need for the magistrate to do this arises, because in terms of s 8(2)
the Minister is entitled, if the warrant has not yet been executed, to direct
that it be cancelled, or, if it has been executed, to direct the discharge of
the person concerned. That may be done either because the Minister is of
the view that the request for extradition is being delayed unreasonably or
for any other reason the Minister may deem fit.

[49] It is common cause that the magistrate did not furnish the Minister
with particulars of the issue of the warrant and the Minister did not
consider whether to exercise his powers under s 8(2). The submission was
that depriving the Minister of the opportunity to set aside the warrant
invalidated the warrant itself. However, once it was accepted that the
initial issue of the warrant was lawful, counsel found himself in
difficulties in explaining when and how invalidity would occur. The Act
does not provide that the warrant is stayed until after the Minister has
been given notice under s 8(1), nor does it provide that the warrant lapses

if the Minister is not notified within a specified time period. Section 8(2)
expressly contemplates that the person concerned may already have been
arrested pursuant to the warrant by the time the Minister considers their
situation.

[50]  Although s 8(1) contemplates that the particulars will be given
'forthwith' it is inevitable that some time will elapse between the issue of
the warrant and furnishing the Minister with particulars of the issue of the
warrant. What period of delay is permissible before the validity of the
warrant expires? Counsel was unable to say. Various factual scenarios
were posed with a view to securing clarity on the issue. How long a delay
would matter? In this case the warrant was issued on 6 December and
executed on 8 December. Was that invalid because no notification to the
Minister had been sent? What if the magistrate had prepared a letter
immediately, but it required to be typed and there was a holdup with the
typist, or the magistrate was called away for a couple of days to attend to
a family emergency? What if the magistrate was involved in a serious
motor accident that evening and was hospitalised for a lengthy period or
even killed? When would the validity of the warrant expire and how
would anybody know?

[51]  The inability to provide an answer indicated that there was a
serious flaw in the argument. It lay in the proposition that a failure to
perform the duty imposed under s 8(1) operated retrospectively to
invalidate the warrant. While the obligation to furnish particulars relating
to the issue of the warrant arose from the issue of a warrant, the propriety
of the decision to issue the warrant was not affected thereby. That
decision required the magistrate to bring an independent mind to bear on
the issues relevant to a determination that the person concerned was

subject to extradition.37 Having done so the magistrate would have
performed her proper function in regard to the issue of the warrant and
her subsequent conduct would not affect that. The purpose of s 8(2) is to
enable the Minister to consider whether there are reasons why the warrant
should remain in force. Although the magistrate is obliged to furnish
particulars of the issue of the warrant forthwith upon issuing the warrant,
there is no time limit on the Minister's consideration of whether it should
remain in force. The Minister's powers may be exercised 'at any time'
after having been notified that a warrant has been issued. It would be a
curious construction of these provisions that the magistrate's failure to
furnish particulars to the Minister 'forthwith' would cause the warrant to
lapse but, if she did furnish them, the Minister could take a lengthy period
before taking any decision. Given the nature of the circumstances in
which the Minister may set the warrant aside it is even conceivable that
the initial decision may be to sustain the arrest, but with the passage of
time the Minister might conclude that the request for extradition is being
unreasonably delayed and direct that the arrested person be discharged
forthwith.

[52] Were a consequence as drastic as the invalidity and lapsing of the
warrant intended, one would have expected s 8(2) to be specific as to the
period that would constitute furnishing particulars 'forthwith'. and to state
expressly the consequences flowing from non-compliance. Furthermore,
there is nothing to prevent the Minister from exercising the powers
conferred by s 8(2) when the issue of the warrant comes to the Minister's
attention, albeit not as a result of the magistrate's actions. That was the
situation in the present case.

37 Smit op cit, fn 5 para 111.

[53]   For those reasons, I am satisfied that the magistrate's failure to
comply with s 8(1) did not invalidate the warrant. This point must also be
rejected.

The circumstances of the arrest
[54]   As a last-ditch contention, counsel sought to argue as an
additional point that the circumstances of Mr Kouwenhoven's arrest were
not in accordance with the 'proper and dignified' arrangements that were
referred to in the closing paragraph of Mr Eisenberg's letter to
W.O. van de Heever. Quite why this would invalidate the arrest was not
explained, but it is unnecessary to dwell on it. The point had not been
raised as a ground for invalidating the arrest in the founding affidavit and
there was no evidence to support it. The police arrived at Mr
Kouwenhoven's home at 7.50 am on 8 December 2017, which in a fit of
hyperbole counsel described as a 'dawn raid', and at around 8.30 am he
was taken in an unmarked police vehicle (not a police van) from the
house to the Sea Point police station. During the period between 7.50 am
and 8.30 am he took the police on a tour of all five stories of his house.
He deposed to his affidavit in support of his bail application four hours
later. This was hardly the 'perp walk' of American journalism and the
proper response to the submission is to echo the words of Sachs J in
Quagliani that:38
‘Legal representatives are entitled, even obliged to defend the interests of their clients
with vigour and panache. Yet there must be limits to their ingenuity. Stretching the
bounds of appropriate forensic procedure beyond breaking point is not permissible.

38 President of the Republic of South Africa v Quagliani; President of the Republic of South Africa and
Others v Van Rooyen and Another; Goodwin v Director-General, Department of Justice and
Constitutional Development and Others [2009] ZACC 1; 2009 (2) SA 466 (CC) para 73.

The raising in the affidavits of a number of points and their subsequent
abandonment indicated that Mr Kouwenhoven's legal representatives
exercised their ingenuity to its limits.

[55] There was no merit in the point.

General
[56] None of the arguments advanced in support of the contention that
the arrest of Mr Kouwenhoven was invalid had any merit. It is
accordingly unnecessary to address the contention, based on the decision
of this court in Ebrahim39 that, if the grounds advanced had any legal
merit, they necessarily meant that the magistrate charged with conducting
an extradition enquiry under ss 9 and 10 of the Act had no jurisdiction to
do so. Other than noting that Mr Ebrahim had been unlawfully abducted
from Swaziland and brought into South Africa, which is fundamentally
different from Mr Kouwenhoven's situation, it is unnecessary to discuss
the case. It is also unnecessary to consider the cases where courts have
discussed, in the context of civil proceedings, whether the fact that a
person has been brought before a magistrate and thereafter remanded in
custody interrupts the chain of causation between a prior unlawful arrest
and the further detention of the arrested individual.40

Result
[57]  The appeal is dismissed with costs, such costs to include the costs
of two counsel in respect of both the first respondent and the second and
third respondents.

39 Ebrahim v S 1991 (2) SA 553 (A).
40 De Klerk v Minister of Police [2019] ZACC 32; 2021 (4) SA 585 (CC) paras 36 to 45.

_____________________________
M J D WALLIS
JUDGE OF APPEAL

Appearances

For appellant:
A Katz SC (with him D Cooke)
Instructed by:
Eisenberg & Associates, Cape Town;
Webbers Attorneys, Bloemfontein
For first respondent: A M Breitenbach SC (with him A G Christians)
Instructed by:
State Attorney, Cape Town and Bloemfontein.
For second and third respondents:   F Petersen (with him M Mokhoaetsi)
Instructed by:
State Attorney, Cape Town and Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL
FROM The Registrar, Supreme Court of Appeal
DATE 22 September 2021
STATUS Immediate
Please note that the media summary is for the benefit of the media and
does not form part of the judgment.
Kouwenhoven v Minister of Police and Others (888/2020) [2021] ZASCA 119
(22 September 2021) and Kouwenhoven v Director of Public Prosecutions,
Western Cape and Others (288/2021) [2021] ZASCA 120 (22 September
2021)
These two appeals arose out of Mr Kouwenhoven's endeavours to avoid
his extradition to the Netherlands. He is a Dutch citizen, at present
resident in Cape Town and a businessman who formerly had significant
business interests in Liberia. On 21 April 2017 he was convicted by the
Court of Appeal of ‘s-Hertogenbosch of repeatedly committing the
offence of complicity in war crimes, and repeatedly violating the Dutch
Sanctions Act, arising out of his involvement in the civil war in Liberia
that raged between 1997 and 2003 and led to the downfall of the then
President of Liberia, Charles Taylor. Mr Kouwenhoven was sentenced to
serve a term of imprisonment of 19 years and his conviction and sentence
have been upheld by the Supreme Court of the Netherlands.
On 8 December 2017, Mr Kouwenhoven was arrested pursuant to a
warrant of arrest issued, in terms of s 5(1)(b) of the Extradition Act 67 of

1962 (the Act), by a Pretoria magistrate. The first appeal arose from
review proceedings instituted by him to challenge the validity of his
arrest and his being brought before a magistrate in Cape Town to face an
extradition enquiry. The review failed in the high court and his appeal
was dismissed today.
The review challenged Mr Kouwenhoven's arrest on four grounds. He
contended that his attorney had concluded an agreement, or obtained an
undertaking, from a police officer stationed at the Interpol desk in
Pretoria that Mr Kouwenhoven would not be arrested pursuant to an
application by the Netherlands for his provisional arrest under the
extradition treaty between that country and South Africa. He said a
similar agreement had been concluded, or undertaking given, by a senior
legal adviser in the Department of Justice and Constitutional
Development. The SCA held that no such agreement was concluded and
no undertaking was given. It also expressed strong reservations at the
proposition that either official was empowered to conclude such an
agreement or furnish such an undertaking.
The remaining grounds of review were that the police officer's affidavit
on which the arrest warrant was issued was not properly attested; that the
magistrate merely 'rubber stamped' the request for the issue of a warrant;
and that after issuing the warrant the magistrate failed to inform the
Minister of Justice and Constitutional Development of that fact as
required by s 8(2) of the Extradition Act. The SCA rejected each of these
arguments. In the result the appeal was dismissed.
After the review had been dismissed in the high court an extradition
enquiry was convened before a magistrate in Cape Town in terms of s 10
of the Extradition Act. At the end of that enquiry the magistrate
discharged Mr Kouwenhoven on the grounds that the criminal conduct of
which he had been found guilty had been committed in Liberia and not

the Netherlands. The Director of Public Prosecutions, Western Cape then
required the magistrate to state a case in terms of s 310(1) of the Criminal
Procedure Act 52 of 1977 and appealed to the Western Cape Division of
the High Court. This prompted Mr Kouwenhoven to launch review
proceedings alleging that an appeal under s 310 (1) was impermissible
after an extradition enquiry and that, in any event, the process followed in
preparing the stated case was flawed because he had not been given an
opportunity to participate in it.
The high court had dismissed the review and upheld the DPP's appeal.
The SCA today confirmed that decision. It held that, properly understood,
an extradition enquiry is a criminal proceeding for the purposes of
s 310(1) of the Criminal Procedure Act. It serves the purpose of enabling
errors of law by the magistrate, leading to the discharge of the person
whose extradition is requested, to be corrected. The process for
formulating a stated case is set out in the rules and does not require the
input of the person whose extradition is requested.
On the legal issue the court held that the relevant provisions of the
Extradition Act dealing with extradition require that the crime for which
the person is to be, or has been, charged, is one within lawful jurisdiction
of the requesting state's courts. It is not confined to the territorial
jurisdiction of those courts. Accordingly Mr Kouwenhoven could be
extradited to the Netherlands to serve his sentence.