THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case no: 162/2020

In the matter between:

TIMOTHY GORDON MARSLAND
APPELLANT

and

THE ADDITIONAL DISTRICT COURT
MAGISTRATE, KEMPTON PARK
FIRST RESPONDENT

THE DIRECTOR OF PUBLIC PROSECUTIONS,
JOHANNESBURG
SECOND RESPONDENT

Neutral citation: Marsland v The Additional District Court Magistrate, Kempton
Park and Another (162/20) [2021] ZASCA 14 (10 February 2021)

Coram:
MAYA P, VAN DER MERWE and MAKGOKA JJA, and EKSTEEN
and POYO-DLWATI AJJA

Heard:
24 November 2020

Delivered: This judgment was handed down electronically by circulation to the
parties' representatives via email, publication on the Supreme Court of Appeal
website and release to SAFLII. The date and time for hand-down is deemed to be
10:00 am on (10 February 2021).

Summary: Extradition – interpretation of Article 10(5) of the Southern African
Development Community Protocol on Extradition – ss 4(1), 5(1)(a) and (b) of the
Extradition Act 67 of 1962 – direct receipt of formal extradition documentation
under s 4(1) by Minister of Justice not required – notification envisaged in s 5(1)(a)
not applicable to extradition proceedings triggered by provisional arrest under s
5(1)(b).
__________________________________________________________________

ORDER
__________________________________________________________________

On appeal from: Gauteng Division of the High Court, Johannesburg (Matojane and
Dippenaar JJ sitting as court of review):

The appeal is dismissed.
________________________________________________________________

JUDGMENT
__________________________________________________________________
Poyo-Dlwati AJA (Maya P, Van der Merwe and Makgoka JJA and Eksteen
AJA concurring)

[1] The core issue for determination in this appeal is whether a provisional arrest
under s 5(1)(b) 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 s 5(1)(a) of the Act, within 30 days
of the arrest.

[2] The Republic of South Africa (South Africa) and the Republic of Botswana
(Botswana) are among the signatories to the Southern African Development
Community Protocol on Extradition (the Protocol),1 which the RSA ratified in April
2003 and came into force on 1 September 2006. The preamble of the Protocol reads
as follows:
‘We, the Heads of State or Government of:
….

The Republic of Botswana
. . .
The Republic of South Africa
NOTING with concern the escalation of crime at both national and transnational levels, and that
the increased easy access to free cross border movement enables offenders to escape arrest,
prosecution, conviction and punishment;
CONVINCED that the speedy integration amongst State Parties in every area of activity can best
be achieved by seeking to create and sustain within the Southern African Development
Community, such conditions as shall eliminate any threat to the security of our people;
DESIRING to make our co-operation in the prevention and suppression of crime more effective
by concluding an agreement on extradition;
BEARING in mind that the establishment of a multilateral agreement on extradition will greatly
enhance the control of crime in the Community. . .’

[3] South Africa and Botswana are also parties to the Extradition Treaty (the
Treaty), which they signed in February and March 1969, respectively. There is,
therefore, well-established co-operation between the two countries with regard to

1 Signed by the Republics of South Africa and Botswana on 3 October 2002 in Luanda, Angola and agreed upon also
by the Republics of Angola, Malawi, Mauritius, Mozambique, Namibia, Seychelles, Zambia and Zimbabwe, the
Democratic Republic of the Congo, the Kingdoms of Lesotho and Swaziland, and the United Republic of Tanzania.

extraditions. It was, however, common cause before us that the Protocol, and not the
Treaty, was paramount in this case, as Article 19 of the Protocol provides:
‘The provisions of any treaty or bilateral agreement governing extradition between any two State
Parties shall be complementary to the provisions of this Protocol and shall be construed and applied
in harmony with this Protocol. In the event of any inconsistency, the provisions of this Protocol
shall prevail.’

[4] Against this backdrop, Botswana caused Interpol to issue a Red Notice request
for the provisional arrest of the appellant, Mr Timothy Gordon 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 terms of s 5(1)(b) of the Act. 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.

[5] The appellant 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 the second
respondent, the Director of Public Prosecutions, Johannesburg, handed the first
respondent three documents, namely:
(a)
a Note Verbale from  Botswana, dated 17 July 2019, requesting the extradition
of the appellant;

(b)
a letter from the 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
(c)
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’.

[6] Thereafter, the second respondent 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.2 The appellant opposed that application on the ground that no
extradition application was pending before any court in South Africa. He argued that
no notification, as envisaged in s 5(1)(a) 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.

2 Section 10(1) of the Act provides, ‘if upon consideration of the evidence adduced at the enquiry referred to in
ss 9(4)(a) and (b)(i) 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’s 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’.
3 Article 10(5) of the Protocol provides:
‘Provisional arrest shall be terminated if the Requested State has not received the request for extradition and supporting
documents through the channel provided for in Article 6 within thirty (30) days after the arrest. The competent
authorities of the Requested State, in so far as it is permitted by the law of that State, may extend that delay with regard
to the receipt of the documents. However, the person sought may be granted bail at any time subject to the conditions
considered necessary to ensure that the person does not leave the country; and
The provision of paragraph (a) shall be without prejudice to the right of the person so arrested to be released in
accordance with the domestic law of the Requested State.’

[7] The first respondent dismissed the application for the appellant’s release. She
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.

[8] 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 s 5(1)(a)
notice as proof of receipt of the extradition request, where the arrest was pursuant to
a warrant issued by a Magistrate in terms of s 5(1)(b) of the Act. The appellant’s
application for leave to appeal to this Court was refused by the high court, but was
subsequently granted by this Court.

[9] The appellant contended that the provisional arrest had terminated in terms of
Article 10(5) of the Protocol. The grounds of the appellant’s argument before us
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 s 5(1)(a)
of the Act to commence the extradition, which was required even though the
appellant’s arrest was effected in terms of s 5(1)(b) of the Act.

[10] The principles for interpreting documents and legislation are trite and have
been restated on numerous occasions by this Court.4 As this Court put it in Endumeni
at para 18:5
‘Interpretation is the process of attributing meaning to the words in a document, be it in legislation,
some other statutory instrument, or contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document as a whole and the circumstances
attendant upon its coming into existence. Whatever the nature of the document, consideration must
be given to the language used in the light of the ordinary rules of grammar and syntax; the context
in which the provision appears; the apparent purpose to which it is directed and the material known
to those responsible for its production. Where more than one meaning is possible each possibility
must be weighed in the light of all these factors. The process is objective and not subjective. A
sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or
undermines the apparent purpose of the document. Judges must be alert to, and guard against, the
temptation to substitute what they regard as reasonable, sensible or businesslike for the words
actually used. To do so in regard to a statute or statutory instrument is to cross the divide between
interpretation and legislation; in a contractual context it is to make a contract for the parties other
than the one they in fact made. The ‘inevitable point of departure is the language of the provision
itself’, read in context and having regard to the purpose of the provision and the background to the
preparation and production of the document.’ And, as the Constitutional Court held in
Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others: In re Hyundai Motor Distributors (Pty) Ltd and
Others v Smit N O and Others and Another,6 when construing legislation courts must
promote the spirit, purport and objects of the Bill of Rights. Wherever possible,
without straining the language of a statutory provision, it must be given an
interpretation that is within constitutional bounds in preference to one that involves
an infringement of constitutionally protected rights.

4 See Natal Joint Municipality Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA)
para 18.
5 See fn 4.
6 Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd and
Others: In re Hyundai Motor Distributors (Pty) Ltd and Others v Smit N O and Others [2000] ZACC 12; 2000 (1) SA
515 (CC) para 21 to 26.

[11] It is appropriate at this stage to consider the relevant provisions of the Act and
the Protocol. These are ss 3(1), 4(1), 4(2), 5(1)(a), 5(1)(b) and 8 of the Act, which
must be read together with Articles 6 and 10(5)(a) of the Protocol.

[12] Section 3(1) of the Act provides for one of three grounds upon which a person
may be extradited from this country.7 It reads:
‘Any person accused or convicted of an offence included in an extradition agreement and
committed within the jurisdiction of a foreign State a party to such agreement, shall, subject to the
provisions of this Act, be liable to be surrendered to such State in accordance with the terms of
such agreement, whether or not the offence was committed before or after the commencement of
this Act or before or after the date upon which the agreement comes into operation and whether or
not a court in the Republic has jurisdiction to try such person for such offence.’

[13] Section 4(1) of the Act on the hand provides:
‘Subject to the terms of any extradition agreement any request for the surrender of any person to a
foreign State shall be made to the Minister by a person recognised by the Minister as a diplomatic
or consular representative of that State or by any Minister of that State communicating with the
Minister through diplomatic channels existing between the Republic and such State.’
On the other hand, s 4(2) provides that any such request received in terms of an
extradition agreement by any person other than the Minister, shall be handed to the
Minister.
Article 6 provides for a method by which the request for extradition shall be made.
It reads:
‘A request for extradition shall be made in writing. The request, supporting documents and
subsequent communications shall be transmitted through the diplomatic channel, directly between
the Ministries of Justice or any other authority designated by the State Parties.’

7 Sections 3(2) and (3) of the Act are not applicable. Section 3(2) provides for an extradition to a foreign State where
there is no extradition agreement but the President has consented in writing to such extradition, whilst s 3(3) provides
for an extradition to a designated State regardless of whether the offence was committed before or after the designation
of such State and whether or not a court in the Republic had jurisdiction to try such person for such offence.

[14] Section 5(1)(a) of the Act provides:
‘Any magistrate may, irrespective of the whereabouts or suspected whereabouts of the person to be arrested,
issue a warrant for the arrest of any person upon receipt of a notification from the Minister to the effect that
a request for the surrender of such person to a foreign State has been received by the Minister.’
Section 5(1)(b) on the other hand provides that:
‘Any magistrate may, irrespective of the whereabouts or suspected whereabouts of the person to be arrested,
issue a warrant for the arrest of any person upon such information of his or her being a person accused or
convicted of an extraditable offence committed within the jurisdiction of a foreign State, as would in the
opinion of the Magistrate justify the issue of a warrant for the arrest of such person, had it been alleged that
he or she committed an offence in the Republic.’

[15] It is 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.

[16] As I have pointed out, 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 in terms
s 5(1)(a) of the Act.

[17] 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.

[18] There is no substance, therefore, in the appellant’s argument that the request
for his extradition had not been properly received as at 12 August 2019. It was
submitted on behalf of the appellant that the request had to be received by the
Minister directly. For that interpretation to be accepted, one would have to ignore
the words ‘diplomatic channel’ and ‘Ministries’ in Article 6 of the Protocol, as well
as the context in which those words were used. Needless to say, this would not yield
a sensible meaning. The Oxford Dictionary describes ‘ministry’ as (in certain
countries) ‘a government department headed by a Minister’. This meaning of the
word ‘ministry’ puts to bed the argument that the request had to be received directly
by the Minister.

[19] As I have said, it was further argued on behalf of the appellant that a s 5(1)(a)
notice had to be issued by the Minister, as evidence that a request for the extradition
of the appellant had been received. There is no merit in this argument either, as the
appellant’s arrest was effected in terms of s 5(1)(b) of the Act. Section 5(1)(a) and
s 5(1)(b) provide for two separate procedures for the arrest of a person sought to be
extradited. This is clearly evidenced by the disjunctive ‘or’ between the subsections.

An arrest, therefore, can be either in terms of s 5(1)(a) or (b) and the requirements
of the one are not applicable to the other.

[20] It was further submitted on behalf of the appellant that the letter dated 12
August 2019 from the Director General of the Department to the NDPP8 was
confirmation that the Department knew that the Minister had to issue a s 5(1)(a)
notice before any extradition process could commence. For this submission, reliance
was placed upon Palazzolo v Minister of Justice and Constitutional Development
and Others.9 However, that submission was misplaced as the court in Palazzolo
made it clear that the Act does not oblige the Minister to issue a notice in terms of s
5(1)(a).10 As I have demonstrated, such a notice is not applicable when the arrest has
been effected in terms of s 5(1)(b).

[21] Lastly, it was submitted that in the absence of a requirement that a notice be
issued by the Minister, the provisional arrest process could be subject to abuse. It
was contended that the police could willy-nilly arrest people under the pretext that
they would be extradited, and thereafter leave them to languish in prisons with no
extradition proceedings being put in motion. However, this argument ignores the
provisions of s 8 of the Act, which enjoin the magistrate, after issuing a warrant for
the arrest or further detention of a fugitive, to immediately furnish the Minister with
the particulars relating to the issue of such warrant. The Minister may at any time
thereafter, in the case where the warrant has not yet been executed, direct the
magistrate concerned to cancel the warrant. In the case where the warrant has been
executed, he may direct that the arrested person be discharged forthwith. In my view,
these are sufficient safeguards against the postulated abuse.

8 See para 5 above.
9 Palazzolo v Minister of Justice and Constitutional Development and Others [2010] ZAWCHC 422.
10 Ibid para 16.

[22] In the circumstances, the appeal must fail. Despite the appellant’s
unsuccessful challenge in asserting his right to freedom, he ought not to be mulcted
with a costs order in line with the principles enunciated in Biowatch Trust.11 The
following order is made:

The appeal is dismissed with no order as to costs.

________________________
T P POYO-DLWATI
ACTING JUDGE OF APPEAL

11 Biowatch Trust v Registrar Genetic Resources and Others 2009 (6) SA 232 (CC).

APPEARANCES

For Appellant:
C E Thompson

Instructed by:

Bernard L Du Plessis Incorporated, Johannesburg

Symington De Kok Attorneys, Bloemfontein

For Respondent:
D Barnard (with P Schutte)

Instructed by:

State Attorney, Johannesburg

State Attorney, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE
SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:            10 February 2021
Status:          Immediate

Timothy Gordon Marsland v The Additional District Court Magistrate,
Kempton Park and Another (162/2020) [2021] ZASCA 14 (10 February
2021)

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

The Supreme Court of Appeal (the SCA) today dismissed an appeal against
the decision of the Gauteng Division of the High Court, Johannesburg, (the
high court) which refused the appellant’s application for the review and
setting aside of the decision of the first respondent, the Additional District
Court Magistrate, Kempton Park, refusing him bail on the basis that his
extradition request had been received by South Africa.

The appellant, Mr Timothy Gordon Marsland, who has dual citizenship in
South Africa and the United Kingdom, and residency in Botswana was
arrested at O R Tambo International Airport whilst en route to Germany on

12 July 2019 on a Red Notice request issued by Interpol. In the Red Notice it
was alleged that the appellant had laundered funds in the sum of BWP 200
000 from Botswana Public Office 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.

The appellant’s application for bail was refused by the first respondent. The
prosecutor, the second respondent, thereafter handed the first respondent with
three documents, namely the Note Verbale from Botswana dated 17 July 2019,
requesting the extradition of the appellant; a letter from the 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.

When the prosecutor made an application for the matter to be transferred to
another court so that an enquiry in terms of s10 of the Extradition Act 67 of
1962 (the Act) could be held, the appellant opposed the application on the
ground that no extradition application was pending before any court in South
Africa. The first respondent held otherwise and dismissed that application.
Dissatisfied with that ruling, the appellant launched review proceedings in the
high court, challenging the first respondent’s decision. That application was
also dismissed by the high court and so was his application for leave to appeal.
His appeal is with this Court’s leave.

Before the SCA, the appellant argued that his detention was unlawful as the
Minister of Justice had not received an extradition request from Botswana as
contemplated in Article 6 of the Southern African Development Community
(SADC) Protocol on Extradition. Also, the Minister had failed to issue a notice
in terms of s 5(1)(a) of the Act. Furthermore, so went the argument, as a period
of 30 days had lapsed since his arrest and no extradition request had been
received, he ought to be released in accordance with article 10(5) of the
Protocol. The SCA held that the Note Verbale, which was in writing,
constituted a request by Botswana for the extradition of the appellant, as
envisaged in the Act and the Protocol. As the Note Verbale was received by
DIRCO, and forwarded to the Department, this meant that the request was
transmitted through the diplomatic channel and received by the Ministry of

Justice as required by Article 6 of the Protocol. The SCA further held that as
the appellant’s arrest was effected in terms of s 5(1)(b), it was not necessary
for the Minister to issue a notice in terms of s 5(1)(a). The appeal was
therefore dismissed with no order as to costs.