[19] In the words of Gubbay CJ (at 318a-b): agents of the State of refuge, without resort to extradition or deportation ‘Where proceedings, surrender the fugitive for prosecution to another State, that receiving State, since it has not exercised any force upon the territory of the refuge State and has in no (Footnotes way violated its territorial sovereignty, is not in breach of international law.’ omitted). [20] In Nduli & another v Minister of Justice & others 1978 (1) SA 893 (AD), a controversial case involving the abduction of freedom fighters, the court assumed jurisdiction where the accused before their arrest in South Africa were abducted from a foreign state by persons including two South African police officers who were not by the South African State. The Appellate Division held that international ‘authorised’ law did not operate to oust the court’s jurisdiction because of such abduction. Rumpff CJ said at 911H-912A: . . (I)t seems clear that in terms of international law, as it exists (and not perhaps as it ‘. should be), the appellants’ case would only have merited consideration if their abduction had been authorised by the Republic of South Africa . . . In the result it cannot be said that the jurisdiction of the court a quo was ousted according, to international law, . . .’ [21] The exception is if the receiving trial acted unlawfully in the sense that it either violated the laws of another country or acted in breach of international law. Therefore, the court must decline jurisdiction in respect of a fugitive who was abducted with the involvement of agents of the receiving state. The same result will follow where agents of
[19] In the words of Gubbay CJ (at 318a-b): ‘Where agents of the State of refuge, without resort to extradition or deportation proceedings, surrender the fugitive for prosecution to another State, that receiving State, since it has not exercised any force upon the territory of the refuge State and has in no way violated its territorial sovereignty, is not in breach of international law.’ (Footnotes omitted). [20] In Nduli & another v Minister of Justice & others 1978 (1) SA 893 (AD), a controversial case involving the abduction of freedom fighters, the court assumed jurisdiction where the accused before their arrest in South Africa were abducted from a foreign state by persons including two South African police officers who were not ‘authorised’ by the South African State. The Appellate Division held that international law did not operate to oust the court’s jurisdiction because of such abduction. Rumpff CJ said at 911H-912A: ‘. . . (I)t seems clear that in terms of international law, as it exists (and not perhaps as it should be), the appellants’ case would only have merited consideration if their abduction had been authorised by the Republic of South Africa . . . In the result it cannot be said that the jurisdiction of the court a quo was ousted according, to international law, . . .’ [21] The exception is if the receiving acted unlawfully in the sense that it either violated the laws of another country or acted in breach of international law. Therefore, the court must decline jurisdiction in respect of a fugitive who was abducted with the involvement of agents of the receiving state. The same result will follow where agents of trial
munuma%20v%20state%20(sa37-2015)%20[2016]%20nasc%20(22%20august%202016).docx