The Francistown High Court has freed a Zimbabwean national who is being sought to answer for criminal offences he is alleged to have committed in South Africa.
The fugitive, Andrew Hlabangane, sighed with relief as Justice Zibani Makhwade overturned an earlier extradition ruling by the Francistown Magistrate allowing his return to SA to face armed robbery charges.
Hlabangane was arrested in August 2010, together with four other accused persons in Francistown, after they were charged with unlawful possession of three 9mm pistols and 23 live rounds of ammunition believed to be arms of war.
The other accused men were later discharged and acquitted by the Francistown Magistrate Court after the prosecution failed to prove its case.
Hlabangane was then remanded in custody after South African authorities implicated him in a number of robberies in their country. The Francistown Magistrates’ Court granted his extradition following an application on behalf of SA by the Directorate of Public Prosecutions for his extradition in terms of the Extradition Treaty between the two countries.
It is alleged that in March 2005 at Douglas in Northern Cape, South Africa, ┬áHlabangane robbed over P1 million from First National Bank (FNB), using a fire arm. He is also implicated in another robbery in South Africa in which P74 000 was also stolen at gunpoint.
His lawyer, Tshekiso Tshekiso, argued in his appeal before the High Court that there was no request made by a relevant authority to the Minister of Foreign Affairs and International Cooperation for his client to be extradited in terms of Section 9 (1) of the Extradition Act. Tshekiso further argued that the magistrate court erred in granting his the extradition order.
“According to Section 9 (1), the surrender of a fugitive criminal of any country who is suspected of being a criminal shall be made to the Minister by a diplomatic representative or consular office of that country. Such procedure was not followed in this case because there are no proper documents before the court to prove that,” Tshekiso argued.
On the other hand, the respondent (DPP), represented by Careb Mbenda, said they would lead evidence to prove that a proper procedure was followed leading to the granting of the extradition but it failed to do so.
Giving his ruling on the appeal, the Judge said that the prosecution, together with the Magistrate Court, erred by violating the Extradition Act.
“Section 9 of the Extradition Act is critical to the extradition inquiry. It is only after the Minister has received the request and forwarded a warrant for endorsement by the Magistrate that a fugitive criminal can be arrested and brought before the court. The warrant must be directed to the magistrate by the minister and then the Magistrate can hold an inquiry. There is no evidence that such procedure was followed,” pronounced Justice Makhwade.
The judge said that the documents received by the magistrate who presided over the case did not contain a request to the Minister for the surrender of the appellant.
“For the reasons I stated, the appeal succeeds and the order of the magistrate is hereby set aside,” ruled the presiding judge.