THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 377/2018
In the matter between:

REATILE THABO MOCHEBELELE

APPELLANT
and
DIRECTOR OF PUBLIC PROSECUTIONS
GAUTENG LOCAL DIVISION,
JOHANNESBURG

FIRST RESPONDENT

MAGISTRATE, RANDBURG

SECOND RESPONDENT
THE GOVERNMENT OF THE KINGDOM
OF LESOTHO

THIRD RESPONDENT

Neutral citation: Mochebelele v Director of Public Prosecutions, Gauteng &
others (377/2018) [2019] ZASCA 82 (31 May 2019)
Coram:
Wallis, Makgoka and Schippers JJA and Plasket and Gorven
AJJA
Heard:

21 May 2019

Delivered:
31 May 2019
Summary: Enquiry in terms of s 10 of the Extradition Act 67 of 1962 –
powers of magistrate – whether magistrate entitled to consider extraneous
factors – Minister’s powers in terms of s 11 of the Extradition Act.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from: Gauteng Local Division, Johannesburg (Matojane J sitting as
court of first instance):
1 Save to the extent reflected in paragraph 2 hereof, the appeal is dismissed
with costs.
2 The order of the court a quo is substituted with the following:
‘1 The order of the magistrate Randburg dated 16 November 2012, discharging
Mr Reatile Thabo Mochebelele in terms of section 10(3) of the Extradition Act
67 of 1962, is set aside.
2 A warrant of arrest is hereby authorized against the said Mr Reatile Thabo
Mochebelele, who is to be committed to prison to await the decision of the
Minister of Justice and Correctional Services with regard to his surrender to the
Kingdom of Lesotho.’
3 The Registrar of this court is directed to forward to the Minister of Justice
and Correctional Services a copy of the record of proceedings in the Randburg
Magistrates’ Court, together with a copy of the judgments of the magistrate, the
Gauteng Division of the High Court, Johannesburg, and this court.

________________________________________________________________
JUDGMENT
________________________________________________________________
Makgoka JA (Wallis and Schippers JJA and Plasket and Gorven AJJA
concurring):
[1] The appellant, Mr Reatile Thabo Mochebelele, a Lesotho national,
appeals, with leave of this court, against the judgment and order of the Gauteng
Division of the High Court, Johannesburg (the court a quo). That court upheld
an appeal by the first respondent, the Director of Public Prosecutions,
Johannesburg (the DPP) and set aside an order by the second respondent, the
magistrate Randburg, discharging the appellant in terms of s 10(3) of the
Extradition Act 67 of 1962 (the Act). Instead, the court a quo ordered that the
appellant is liable to be surrendered to the Kingdom of Lesotho to serve a prison
sentence in that country.
[2] The appellant was convicted of the offence of bribery after an appeal to
the Court of Appeal of Lesotho on 17 October 2008. On 10 December 2009 he
was sentenced to an effective five years’ imprisonment. The case against him
and a co-accused arose from their involvement with a German company in the
implementation of the Lesotho Highlands Water Project. By the time he was
sentenced, the appellant had fled to South Africa, and he was sentenced in his
absence. He applied for refugee status, which was refused by the Refugee Status
Determination Officer on 4 December 2009.
[3] In a note verbale dated 25 February 2010 the third respondent, the
Kingdom of Lesotho (the Lesotho government) requested the Republic of South
Africa to extradite the appellant ‘in order to effect the enforcement’ of a

sentence imposed on him. The request was made in terms of the extradition
treaty between South Africa and the Lesotho government signed on 19 April
2001 and subsequently ratified by South Africa on 29 November 2003.
[4] Pursuant to that request, the appellant was arrested in terms of s 5(1)(b) of
the Act on 10 March 2010. He first appeared in court on 12 March 2010 and
remained in custody until his discharge by the magistrate. On 23 November
2010, while the extradition proceedings were under way, the appellant’s appeal
to the Refugee Appeal Board against the decision of the Refugee Status
Determination Officer, referred to in paragraph 2 above, was dismissed.  The
appellant then launched an application in the then North Gauteng High Court to
review the dismissal of his refugee status application.
[5] That application was still pending when the appellant was discharged, but
was subsequently dismissed on 17 March 2014. The appellant’s application for
leave to appeal against that order was dismissed by the high court on
19 September 2014. His further application for leave to appeal to this court was
dismissed on 20 February 2015, and so was his application to the Constitutional
Court, on 13 May 2015.
[6] On 16 September 2015 the appellant filed a notice with the African
Commission for Human and Peoples’ Rights (the African Commission) in the
Gambia. In that notice, the appellant sought an order among others, that the
South African government grant him refugee status. This was based on his
assertion that his trial and conviction in Lesotho amounted to political
persecution. That application was still pending when this matter was determined
in the court a quo.

[7] There is a preliminary issue of condonation. The DPP was late in filing its
review application. As already stated, the impugned order was granted on
16 November 2012. The review application was only launched on 11 August
2015, some two and half years after the event. The explanation was essentially
that the delay was occasioned in the Randburg Magistrates’ court, among others
by the resignation of the magistrate who heard the extradition application, and
the backlog in the office of the clerk of the court. This delayed the preparation
of the record.
[8] The court a quo accepted the explanation and granted condonation. In this
court, counsel for the appellant asserted that there was insufficient explanation
for the delay, and that the court a quo erroneously granted condonation. Counsel
initially submitted that the order of the magistrate amounted to administrative
action. If so, the DPP would have been required, in terms of s 7 of the
Promotion of Administrative Justice Act 3 of 2000 (the PAJA) to have launched
the review application no later than 180 days after the date of it obtaining
knowledge of the impugned order. However, after debate with the bench,
counsel accepted the proposition that the PAJA is not applicable, and therefore
the condonation application should be determined on the common law basis.
[9] It is now well settled that in considering applications for condonation, the
court has a discretion, to be exercised judicially upon a consideration of all of
the facts. In essence it is a question of fairness to both sides.1 In the present case,
one must adopt a practical and sensible approach. Although the delay was
admittedly inordinate, the DPP cannot be blamed for it. Like any litigant, it had
to grapple with the bureaucratic bottle-necks and ineptitude in the office of the
clerk of the court in the Randburg Magistrates’ Court. Perhaps the DPP could

1 United Plant Hire (Pty) Ltd v Hills & others 1976 (1) SA 717 (A) at 720E-F; Buffalo City Municipality v Asla
Construction (Pty) Ltd [2019] ZACC 15 para 54.

have been more persistent and made enquiries with greater frequency than it did.
Even if the DPP must shoulder some blame, that is not so of the Lesotho
government. It was not a party to the application, and had absolutely no power
to do anything about the delay.
[10] Furthermore, in the ultimate end, the delay has not occasioned any
prejudice to the appellant. Instead, it enured to his benefit. By the time the
impugned order was made on 16 November 2012, the appellant’s application to
review and set aside the refusal to grant him refugee status was still pending in
the high court. The high court delivered its judgment in that application on
17 March 2014. The appellant sought leave to appeal that decision, culminating
in the dismissal of his application for leave to appeal on 15 May 2015 by the
Constitutional Court.
[11] Had the DPP launched the application any time between the granting of
the impugned order on 16 November 2012 and 14 May 2015 (when the
Constitutional Court dismissed the application for leave to appeal) it would have
been met with a response, either that the high court application was pending, or
that the application for leave to appeal was pending. Viewed in this light, the
delay worked to the appellant’s advantage. It kept him out of prison for as long
as it took to exhaust his appeal options. In effect the delay gave him precisely
what he had sought before the magistrate, namely that his application for
refugee status be disposed of before the extradition request was considered.
[12] Another consideration is the desirability of having finality of matters. The
refusal of condonation to the DPP would not bring finality in the matter, as the
Lesotho government would likely submit a fresh extradition request. This would
further delay the matter. For all these reasons, I am of the view that it was in the

interests of justice that condonation was granted. There is no basis on which to
interfere with the grant of condonation by the court a quo.
[13] I turn now to the merits of the appeal, which must be determined with
reference to the framework of the Act and the relevant provisions of the
extradition treaty. The relevant sections of the Act are ss 9, 10 and 11. In terms
of s 9(1) an extradition enquiry has to be held before a magistrate in whose area
of jurisdiction a person whose extradition to a foreign state is sought, has been
arrested. Section 9(2) provides that the magistrate holding the enquiry shall
proceed in the manner in which a preparatory examination is to be held in the
case of a person charged with having committed an offence in South Africa.
[14] Section 10 sets out the issues the magistrate should consider at such an
enquiry, and the competent orders the magistrate is entitled to make. The
section, in relevant parts, reads:
‘(1)   If upon the consideration of the evidence adduced at the enquiry . . . the magistrate finds
that the person brought before him or her is liable to be surrendered to the foreign State
concerned and, in the case where such person is accused of an offence, that there is sufficient
evidence to warrant a prosecution for the offence in the foreign State concerned, the
magistrate shall issue an order committing such person to prison to await the Minister’s2
decision with regard to his or her surrender, at the same time informing such person that he or
she may within 15 days appeal against such order to the Supreme Court.
(2)   For purposes of satisfying himself or herself that there is sufficient evidence to warrant a
prosecution in the foreign State the magistrate shall accept as conclusive proof a certificate
which appears to him or her to be issued by an appropriate authority in charge of the
prosecution in the foreign State concerned, stating that it has sufficient evidence at its
disposal to warrant the prosecution of the person concerned.

2 The relevant Minister referred to in the Act is the Minister of Justice and Correctional Services.

(3)  If the magistrate finds that the evidence does not warrant the issue of an order of
committal or that the required evidence is not forthcoming within a reasonable time, he shall
discharge the person brought before him.
(4)  The magistrate issuing the order of committal shall forthwith forward to the Minister a
copy of the record of the proceedings together with such report as he may deem necessary.’
[15] Section 11 reads:
‘The Minister may –
(a) order any person committed to prison under section 10 to be surrendered to any
person authorized by the foreign State to receive him or her; or
(b)
order that a person shall not be surrendered –
(i) where criminal proceedings against such person are pending in the Republic,
until such proceedings are concluded and where such proceedings result
in a sentence of a term of imprisonment, until such sentence has been
served;
(ii) where such person is serving, or is about to serve a sentence of a term of
imprisonment, until such sentence has been completed;
(iii) at all, before the expiration of a period fixed by the Minister, if he or she is
satisfied that by reason of the trivial nature of the offence or by reason of
the surrender not being required in good faith or in the interests of justice,
or that for any other reason it would, having regard to the distance, the
facilities for communication and to all the circumstances of the case, be
unjust or unreasonable or too severe a punishment to surrender the person
concerned; or
(iv) if he or she is satisfied that the person concerned will be prosecuted or
punished or prejudiced at his or her trial in the foreign State by reason of
his or her gender, race, religion, nationality or political opinion.’

[16] On a simple reading of ss 10 and 11, the magistrate and the Minister both
play a role, but with carefully delineated duties and responsibilities. The
magistrate’s duties are confined to making certain preparatory findings, while

the Minister makes substantive and political decisions as regards the extradition
or otherwise of a person sought by the requesting state.
[17] Section 10 makes plain that the magistrate who conducts an extradition
enquiry must determine whether the person is liable to be surrendered to the
foreign state concerned and, in the case where the person is accused of the
commission of an offence, whether there is sufficient evidence to warrant a
prosecution in the foreign state. If the magistrate makes a positive finding in
relation to these matters, he or she has no residual discretion but to make an
order committing that person to prison ‘to await the Minister’s decision with
regard to his or her surrender.’3
[18] Before the magistrate, it was submitted on behalf of the appellant that the
extradition request was not made in good faith, but for political purposes. It was
alleged that the prosecution authority in Lesotho was being used by the Lesotho
government as an instrument for political persecution of the appellant. Also,
that the application to review the refusal of his refugee status was pending in the
high court. For those reasons, it was contended, the appellant should be
discharged.
[19] The magistrate’s judgment is not a model of clarity. He devoted a
considerable portion of it to the fair trial provisions enshrined in s 35(3) of the
Constitution, without explaining the relevance thereof to the issue before him.
Needless to say, those provisions bear no relevance to an extradition enquiry in
terms of s 10. Very importantly, however, the magistrate made a finding that the
provisions of s 10 were satisfied. In other words, he was satisfied that the

3 See Geuking v President of the Republic of South Africa and others [2002] ZACC 29; 2003 (3) SA 34 (CC)
para 15.

appellant had been convicted of an extraditable offence in Lesotho, and was
thus liable to be surrendered to that country. I pause here to mention that on this
finding, the magistrate was obliged to order the committal of the appellant to
prison to there await the decision of the Minister with regard to his surrender.
Despite being satisfied that the requirements of s 10, as stated above, were
satisfied, the magistrate took the view that he was entitled to take into
consideration the fact that the refugee status application was pending, and to
decide that it should be determined first. On that basis, he made an order
discharging the appellant.
[20] Aggrieved by that order, the DPP applied to the court a quo to review and
set aside the decision. The application came before Matojane J who, on
25 August 2017, granted the order sought by the DPP. The learned judge
concluded that the magistrate had acted ultra vires his powers conferred in s 10.
He substituted the magistrate’s order with one that the appellant was liable to be
surrendered to the Lesotho government, and that, pending the decision of the
Minister whether the appellant ought to be extradited, the appellant be detained
in prison.  The appellant appeals against that order.
[21] In this court, as he did in the court a quo, the appellant supports the
decision of the magistrate. It was contended on his behalf that the magistrate
was correct to find that in arriving at his decision, he was not limited to the
provisions of s 10 only, but could take into consideration extraneous factors
such as the admitted political instability in Lesotho at the time. Counsel sought
to buttress his argument with reference to article 4(4) of the extradition treaty,
which provides for discretionary refusal of extradition where, in ‘exceptional
cases,’ the requested state, while also taking into account the seriousness of the
offence and the interests of the requesting state, considers that, because of the

personal circumstances of the person sought to be extradited, the extradition
would be incompatible with humanitarian considerations.
[22] The argument based on article 4(4) suffers the same fate. Apart from the
fact that the magistrate did not purport to rely on this article in his judgment,
there is, in any event, no merit in the contention. The magistrate could not
competently discharge the appellant based on the circumstances set out in
article 4(4). The discretionary power to refuse an extradition in ‘exceptional
circumstances,’ properly construed, belongs to the Minister, and not the
magistrate. That is plain from s 11 of the Act which incorporates the provisions
of article 4(4). That must be so because of the clear wording of the article. The
power is given to the ‘requested state’ which might consider the interests of ‘the
requesting state’ to consider whether the extradition would be incompatible with
humanitarian considerations. Clearly, this falls squarely within the purview of
international relations between states, and not of the courts.
[23] It was therefore not within the magistrate’s remit to determine whether it
would be unjust or unreasonable to extradite the appellant. The magistrate’s
power to discharge the person is limited to only two instances in terms of
s 10(3): if he or she finds that the evidence does not warrant the issue of an
order of committal or that the required evidence is not forthcoming within a
reasonable time.
[24] In Director of Public Prosecutions: Cape of Good Hope v Robinson4 it
was concluded that a magistrate conducting an enquiry in terms of s 10(1) has
no power to consider whether the constitutional rights of the person sought by a

4 Director of Public Prosecutions: Cape of Good Hope v Robinson [2004] ZACC 22; 2005 (4) SA 1 (CC) para
49.

requesting state may be infringed upon extradition. That aspect must be
considered by the Minister in terms of s 11.
[25] It follows that the magistrate was wrong to take into consideration the
pending refugee status review application. As correctly pointed out by the court
a quo, it was open to the magistrate in terms of s 10(4) to note his concerns in
his report to the Minister, including the fact that there was a pending review
application. The court a quo was accordingly correct in setting aside the order of
the magistrate.
[26] It was submitted on behalf of the appellant that upon setting aside the
decision of the magistrate, the court a quo ought to have remitted the matter to
the magistrates’ court for determination, instead of ‘attempting to correct the
decision by substituting it with its own.’ It was contended that s 9(1) was
peremptory that an extradition enquiry ought to be held by a magistrate. In this
case, so went the submission, the enquiry was not completed on account of the
pending refugee status review application.
[27] It is trite that a court should be slow to substitute its own decision for that
of an administrative authority, and should do so sparingly and in exceptional
circumstances.5 In considering whether such exceptional circumstances are
present warranting substitution in a given case, the Constitutional Court in
Trencon Construction v Industrial Development Corporation of South Africa
(Pty) Ltd & another [2015] ZACC 22; 2015 (5) SA 245 (CC) paras 44- 55,
stated two key factors to be considered in such an enquiry: whether a court is in
as good a position as the administrator to make the decision, and whether the

5 Gauteng Gambling Board v Silverstar Development Ltd & others [2005] ZASCA 19; 2005 (4) SA 67 (SCA)
paras 28-29.

decision of an administrator is a foregone conclusion. Other relevant factors
would include delay, bias or the incompetence of an administrator.
[28] The court further explained that a court will not be in as good a position
as the administrator where the application of the administrator’s expertise is still
required and a court does not have all the pertinent information before it. Once a
court has established that it is in as good a position as the administrator, it is
competent to enquire into whether the decision of the administrator is a
foregone conclusion. A foregone conclusion exists where there is only one
proper outcome of the exercise of an administrator’s discretion and it would
merely be a waste of time to order the administrator to reconsider the matter.
There can never be a foregone conclusion unless a court is in as good a position
as the administrator.
[29] In the present case, the function which a magistrate performs in terms of
s 10 requires no technical knowledge or expertise. It concerns a simple
application of the law. Thus, the court a quo was in as good a position as the
magistrate. All the facts were before it. What is more, the provisions of s 10(1)
had been met by the finding of the magistrate that the appellant was liable for
surrender. Besides, the only basis on which the appellant was discharged,
namely the pending refugee status review application, has dissipated. The
appellant has exhausted all his appeal remedies as far as the refugee status
application is concerned.
[30] Given these considerations, it follows that the remittal would have been
an exercise in futility. The outcome of the enquiry was a foregone conclusion.
The court a quo was accordingly correct in not remitting the enquiry. However,
in its substituted order, it omitted to comply with the provisions of s 10(4), in
terms of which a copy of the record of the proceedings has to be forwarded to

the Minister immediately. That should be rectified, and it is reflected in the
order of this court.
[31] There remains the question of costs. Counsel for the appellant submitted
that the case raises issues of general importance and public interest, particularly
the applicability of s 10 of the Act. Therefore, seeking the protection of the
Biowatch principle,6 counsel urged us to make no order as to costs. I am of the
view that, important as the case undoubtedly is to the appellant, it raises no
issues of public importance or public interest. The issue involved the application
of settled law to the facts. Costs should follow the result.
[32] In the result, the following order is made:
1 Save to the extent reflected in paragraph 2 hereof, the appeal is dismissed
with costs.
2 The order of the high court is substituted with the following:
‘1 The order of the magistrate Randburg dated 16 November 2012, discharging
Mr Reatile Thabo Mochebelele in terms of section 10(3) of the Extradition
Treaty Act 67 of 1962, is set aside.
2 A warrant of arrest is hereby authorized against the said Mr Reatile Thabo
Mochebelele, who is to be committed to prison to await the decision of the
Minister of Justice and Correctional Services with regard to his surrender to the
Kingdom of Lesotho.’
3 The Registrar of this court is directed to forward to the Minister of Justice
and Correctional Services a copy of the record of proceedings in the Randburg
magistrates’ court, together with a copy of the judgments of the magistrate, the
Gauteng Division of the High Court, Johannesburg, and this court.

6 Biowatch Trust v Registrar Generic Resources & others [2009] ZACC 14; 2009 (6) SA 232 (CC).

_________________
T M Makgoka
Judge of Appeal

APPEARANCES:
For the Appellant:
CA da Silva SC (with him TR Masevhe)

Instructed by:

Rammutla-at-Law Inc., Pretoria

Maree & Partners, Bloemfontein

For the First Respondent:
D Barnard

Instructed by:

State Attorney, Johannesburg

State Attorney, Bloemfontein
For the Third Respondent:
T Mpaka

Instructed by:

Du Preez Liebertrau & Co., Maseru

Kramer Wiehmann & Joubert, Bloemfontein