Sunday, July 25, 2021

Marsland loses appeal at SA Supreme Court

Timothy Marsland’s ploy to defeat the ends justice has collapsed. Marsland who co-owned liquidated Capital Management Botswana (CMB) with Rapula Okaile has been languishing in jail since 2019. His appeal for unlawful detention was thrown out by the South African Supreme Court of Appeal last week. He is co-accused with his liquidated company of defrauding the Botswana Public Officers Pensioners Fund (BPOPF) millions of Pula. Delivering judgement, the Court said the core issue for determination in the appeal was whether a provisional arrest of the Extradition Act 67 of 1962 (the Act) had lapsed, for the reason that the Minister of Justice (the Minister) neither personally received the relevant extradition request nor issued a notice in terms of the Act, within 30 days of the arrest. 

According to the judgement, Botswana caused Interpol to issue a Red Notice request for the provisional arrest of the appellant, Marsland, who has dual citizenship in South Africa and the United Kingdom, and residency in Botswana. Consequently, on 12 July 2019 the appellant was arrested at OR Tambo International Airport whilst en route to Germany. The arrest was effected through a warrant issued by a magistrate. In the Red Notice it was alleged that the appellant had laundered funds to the sum of BWP200 000 from Botswana Public Officers Fund, whilst he was a director of Capital Management Botswana, which was entrusted to manage and invest these funds. He was also accused of attempting to obtain, by false pretences, an amount of BPW71 000 000 from the First National Bank of Botswana.  Marsland made his first appearance before the first respondent, the Additional District Court Magistrate, Kempton Park on 15 July 2019. The matter was then postponed to 8 August 2019 for a bail application. On 8 August 2019, his application to be released on bail was refused by the first respondent.  

Thereafter, the matter was postponed to 23 August 2019 and the prosecutor, on behalf of South Africa’s Director of Public Prosecutions, Johannesburg, handed the first respondent three documents, namely: a Note Verbale from  Botswana, dated 17 July 2019, requesting the extradition of the appellant;  a letter from South Africa’s Department of International Relations and Co-operation (DIRCO), dated 19 July 2019, addressed to the Director General, Department of Justice and Constitutional Development (the Department), enclosing the Note Verbale; and a letter from the office of the Director General of the Department, dated   12 August 2019, addressed to the National Director of Public Prosecutions (the NDPP) enclosing the Note Verbale as received from DIRCO. Paragraph 3 of that letter requested the NDPP to ‘kindly note that the Department is to submit a memorandum to the Minister, requesting the Minister to issue a notification in terms of s 5(1)(a) of the Extradition Act, 1962’. Thereafter, the DPP made an application to the first respondent for the matter to be transferred to another court for purposes of an enquiry envisaged in s 10 of the Act. Marsland opposed that application on the ground that no extradition application was pending before any court in South Africa. He argued that no notification of the Act, had been issued by the Minister, and thus no extradition application had been received.

He contended that as the period of 30 days contemplated in Article 10(5)[3] had lapsed since the arrest and no application had been received for his extradition, his detention was unlawful. He accordingly sought to be released from detention.  The Magistrate dismissed the application for the appellant’s release. The Court found that the application for his extradition had in fact been received by the Minister and the second respondent prior to the expiry of the 30 – day period referred to in Article 10(5) of the Protocol. In her ruling, she pointed out that the appellant had conceded that the documents for his extradition had been received by the second respondent. Dissatisfied with this ruling, the appellant launched an application in the Gauteng Division of the High Court, Johannesburg (the high court) for the review and setting aside of the first respondent’s decision and other incidental relief. On 10 September 2019 the high court dismissed the application with costs. 

It found that the extradition request and the accompanying documents were indeed received by the Minister and the second respondent on 12 August 2019. It held that there was no requirement in the Protocol that the Minister must issue a notice as proof of receipt of the extradition request, where the arrest was pursuant to a warrant issued by a Magistrate of the Act. Marslan’s application for leave to appeal to Supreme Court of Appeal was refused by the high court, but was subsequently granted by the Supreme Court. Marsland contended that the provisional arrest had terminated in terms of Article 10(5) of the Protocol.  His grounds of argument before the Supreme Court of Appeal were two-fold. First, as at 12 August 2019, the Minister had not received the request from Botswana for his extradition as contemplated in Article 6 of the Protocol.

Secondly, the Minister had by that date not issued a notification in terms of the Act to commence the extradition, which was required even though the appellant’s arrest was effected in terms of section 5(1)(b) of the Act.  The Court of Appeal said it was necessary to examine in some detail the three documents that were handed to the first respondent in court on 23 August 2019.  The Note Verbale No. 164/2019 FS from Botswana reads: “‘The High Commission of the Republic of Botswana presents its compliments to the Department of International Relations and Co-operation of the Republic of South Africa and has the honour to submit a request for an extradition of Timothy Gordon Marsland. The esteemed Department is further requested to transmit the enclosed dossier to the relevant South African Authorities.

The High Commission of the Republic of Botswana avails itself of this opportunity to renew to the Department of International Relations and Co-operation of the Republic of South Africa the assurances of its highest consideration.” The document was received by DIRCO on 17 July 2019 in line with the common cause fact that DIRCO deals mostly with international relations as well as diplomatic matters between the RSA and other countries. The second document was a letter from DIRCO to the Director General of the Department, dated 19 July 2019, which simply enclosed the Note Verbale and requested that the documents be forwarded to the relevant authorities. The third document was also a letter from the office of the Director General enclosing the Note Verbale and indicating the Department’s intention to submit a memorandum to the Minister, requesting him to issue a notification. 

The Note Verbale constituted a request by Botswana for the extradition of the appellant, as envisaged in the Act and the Protocol. A dossier was attached to it with a request that it be handed over to the relevant department. In accordance with Article 6, the request was in writing. The request and the supporting documents were received by DIRCO and forwarded to the Director General of the Department. Thus, the request was ‘transmitted through the diplomatic channel’ and received by the Ministry of Justice, as required by Article 6.

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