A former member of the South African Defence Force (SADF) under the apartheid regime, Johannes Andries Van Der Merwe, is fighting against his extradition to Zambia over motor vehicles theft charges.┬á ┬á
Van der Merwe, who faces a five-year jail sentence if extradited to Zambia, ┬áintends to adduce new evidence pertaining to his military background during the apartheid regime should his application for leave to appeal to the Court of Appeal succeed.
Through his lawyer, Onalethata Kambai of Kambai Attorneys, Van der Merwe on Friday brought an application for leave to Appeal to the Court of Appeal as he believes that he has an arguable case and should be granted leave to appeal to the Court of Appeal.
The application follows Justice David Newman’s ruling upholding the decision of the Magistrate that Van der Merwe be extradited to Zambia.
Van der Merwe says that there is a fundamental irregularity of procedure in that the admission of the extradition documents into evidence was done by a magistrate who does not have jurisdiction to preside over┬á extradition matters and that should render the proceedings a nullity.
According to the record of proceedings, Mokgatle purported to admit the savingram and Extradition Request for Van der Merwe dated 8/3/10 and further purported to admit into evidence correspondence from the High Commission of Zambia.
Kambai also says that the Magistrate purported to admit into evidence┬á┬á the extradition application document, titled ‘extradition’, according to the record of proceedings, at the time Mokgatle purported to make the aforementioned admission, he was at a Magistrates Grade III.
“In terms of the Extradition Act, Section 2, Magistrate means any person appointed as a magistrate Grade 1 or over,” says Kambai.
He says it is very clear that Mokgatle was below the prescribed rank of magistrate designated to preside in extradition matters and his purported admission of the exhibits was beyond his jurisdiction and the purported admission of the exhibits was clearly unlawful and null and void.
“Any further reliance on the exhibits by His Worship Sibanda was also unlawful because the exhibits were admitted by a Magistrate who┬á had no subject matter jurisdiction to even purport to make admission of documents of evidential value,”┬á said Kambai.
Van der Merwe also contends that admission of documents into evidence forms an integral part of an extradition enquiry and it must be conducted by a magistrate with competent jurisdiction and designated in accordance with the ACT.
“By purporting to make certain admissions in the Appellant’s extradition case, His Worship Mokgatle clearly assumed jurisdiction to deal with a matter he had no jurisdiction over, as a Grade III magistrate. This irregularity clearly defeated the unambiguous┬á legislative intent of prescribing subject matter jurisdiction under the Extradition Act┬á to (Grade 1 or over) magistrates and this was not cured or legitimized by the enquiry being handled by a magistrate of competent jurisdiction, His Worship Sibanda,” said Kambai.
Therefore Van der Merwe contends that there is a likelihood that the Court of Appeal may arrive at different conclusion (nullifying the admission of exhibits) on this point, alternatively he has an arguable case to grant leave to appear at the Court of Appeal.
Van der Merwe had initially appealed the decision of the Magistrate at the High Court and Newman dismissed his appeal. But his lawyer says the High Court failed to find that the State did not furnish the Applicant with copies of the statement of the witness they called from Zambia to testify in favour of the State during the enquiry.
“At page 9 of the proceedings the State called Mr. Kevin Nkandla who was a Detective Inspector from Zambia. Applicant contends that┬á there was a fatal irregularity in procedure in that the State failed to discover Detective Nkandila’s statement in advance to┬á enable (him) (Applicant) to prepare his defence,” says Kambai.
Failure to avail the statement, Kambai says, violated his client’s right to a fair hearing hence he was not given adequate time and facilities to prepare his Defence.
“The hearing of the extradition hearing was flawed because the requesting state (Zambia) failed to comply with the provisions of the Botswana Extradition Act which requires the requesting state to transmit a record of the case┬á prepared by a competent authority,”┬á he says.
The Act provides that the requesting country shall send to the Minister for transmission to the magistrate, before whom the fugitive criminal is brought, a record of the case prepared by a competent authority in the requesting country.
The state prosecutor, Superintendent Sergeant Marapo, informed the court that they are opposing Merwe’s application for leave to appeal.
Newman is expected to deliver judgement next week.