Case no 401/98
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
In the matter of
ANN PHYLLIS McCARTHY
Appellant
and
THE ADDITIONAL MAGISTRATE,
JOHANNESBURG   (MR G VAN WYK)
First Respondent
THE ADDITIONAL MAGISTRATE,
JOHANNESBURG   (MR R G LE ROUX)
Second Respondent
THE STATE
Third Respondent
CORAM:   Hefer, Nienaber, Howie, Zulman JJA et Farlam AJA
DATE OF HEARING:   4 September 2000
DATE OF JUDGMENT:   29 September 2000
Extradition - application for warrant in terms of section 5 of Act 67 of
1962 - whether proceedings should be stayed on ground of
unreasonable delay
.
J U D G M E N T
/FARLAM AJA:

FARLAM AJA
Introduction
[1] The appellant in this matter brought an application in the
Witwatersrand  Local Division in which she sought the following orders:
(1)
an order reviewing and setting aside a warrant for her arrest
issued on 7 November 1991 in terms of section 5(1) of the
Extradition Act 67 of 1962 by the first respondent, who is an
additional magistrate for the district of Johannesburg   (in what
follows I shall refer to Act 67 of 1962 as “the Act”);
(2)
an order for the indefinite stay of the proceedings against her in
the case in the magistrates’ court for the district of
Johannesburg in which an enquiry is to be held in terms of
sections 9 and 10 of the Act  with a view to the surrender of the
appellant to the United States of America in terms of sections
11(a) and 16 of the  Act;
(2)
an order referring to the Constitutional Court for determination

in terms of section 103 (4) of the Interim Constitution, Act 200
of 1993, the issue as to whether the provisions of the Act
which permit the same extradition proceedings to be reinstituted
against a person discharged in terms of section 10 (2) thereof
are inconsistent with the Constitution and invalid;
(3)
an order directing that she should be set at liberty; and
(4)
if the application were opposed, an order directing the
respondent or respondents who do so to pay the appellant’s
costs of suit.
During argument in the Court below the relief sought by the
appellant under paragraph (3) above was amended and the appellant sought
an order declaring the Act  to be invalid to the extent of its inconsistency
with the  Constitution,  Act 108 of 1996, and determining the date from
which the declaration of invalidity should come into effect, referring the case
to the Constitutional Court for confirmation of the order of invalidity

and granting a temporary interdict against the third  respondent, the State,
from proceeding with the extradition proceedings against the appellant
pending the decision of the Constitutional Court.   The application having
been dismissed by Heher J, the appellant appeals with the necessary leave
to this Court.
[2] During the argument before this Court Mr Bizos, who appeared
with Mr Hodes on behalf of the appellant, stated that the appellant was not
persisting in her appeal against the Court a quo’s refusal to declare the Act
or certain sections of it  unconstitutional.   He submitted, however,  that the
learned judge in the Court a quo had erred in failing to set aside the warrant
for appellant’s arrest and in failing to grant the indefinite stay of the
proceedings in the magistrates’ court which the appellant had sought.
Facts
[3] The appellant, who is an educational psychologist, was born in
South Africa and is a  citizen of this country and of Germany.   After
spending some  years abroad, inter alia in the United States of America and

Germany, she returned to this country in about 1988 and has lived here ever
since.
During 1985, at a time when she resided in the United States, the
appellant is alleged to have been involved in a conspiracy to murder the
United States Attorney for the Federal District of Oregon.   Before the
indictment could be served upon her she left the United States and went to
Germany.   While she was in Germany an application for her extradition from
Germany was unsuccessfully brought by the United States Government, after
which she returned  to South Africa.
[4] In 1990 the United States Government requested the South
African Government to cause her to be extradited to the United States to
face the conspiracy to murder charge to which I have referred.   She was
arrested in Johannesburg on 11 September 1990 on a warrant issued in terms
of section 5 of the Act.   The warrant was withdrawn the following day but
on that date a second warrant was issued and the appellant, who in the
meanwhile had been released, was re-arrested on the same day and brought
before a magistrate who released her on bail and postponed to 18 October

1990 the enquiry as to whether she should be extradited.  On 18 October
1990 the matter was again postponed, this time to 9 November 1990.
[5] On 9 November 1990 the State applied for a further
postponement because the Government of the United States had not yet filed
any evidence in support of its application for extradition.   The appellant
opposed this application but it was granted and the matter was postponed
to 22 November 1990, on the basis that the postponement was a final one.
[6] On 22 November 1990 the appellant’s counsel successfully
contended that the documentary evidence filed in support of the extradition
application was deficient in that the certification of one of the affidavits had
apparently taken place thirteen days before the affidavit was deposed to and
no evidence had been placed before the court regarding the procedure for
authentication of documents according to the  law of the United States.   The
State’s application for a further postponement to cure the deficiencies was
refused and the appellant was discharged by the magistrate on the ground
that the required evidence had not been forthcoming within a reasonable time.

[7] Nearly a year later, on 7 November  1991,  the State applied to
an additional magistrate in Johannesburg, the first respondent in these
proceedings, for another warrant,  this time a third warrant, for the arrest of
the appellant in terms of section 5 of the Act.   The application was brought
on the same papers as the previous one, supplemented by further affidavits
to remedy the deficiencies in the papers which had caused the previous
application to fail.   It seems clear, and for the purposes of the appeal I am
prepared to find, that the fact that there had been a previous unsuccessful
application for the extradition of the appellant almost a year beforehand was
not disclosed to the first respondent before he authorised the warrant.   The
appellant was arrested, for the third time, on 8 November  1991.  She was
brought before another additional magistrate for the district of Johannesburg,
the second  respondent.   Her representatives raised a plea of res judicata
on her behalf.  It was argued on 10 December  1991  before the second
respondent, who dismissed it on 13 December,  1991.
[8] On 27 January  1992  the appellant’s application for a review of

the second respondent’s rejection of her plea of res judicata was lodged.
The review was heard by Stegmann and MacArthur JJ on 8 June 1992.
Judgment on the review having been reserved, the application for review was
dismissed on 1 March 1993 and leave to appeal against this decision was
refused on 30 March 1993.
[9] On 19 April 1993 the appellant’s petition to the Chief Justice for
leave to appeal was lodged and leave to appeal was granted by this Court on
18 August 1993.
[10] The appeal itself having been argued on 24 February 1995, this
Court by a majority of three judges to two dismissed the appellant’s appeal
on 23 May 1995.   The judgment is reported as S v McCarthy, 1995 (3) SA
731 (A).   The majority judgment was delivered by Van Heerden JA,  who
held that an essential element for the successful invocation of a plea of res
judicata was lacking because, so he held, the appellant’s discharge on the
second warrant had not been a judgment on the merits.
The judgment proceeded (at 750 D - H):

“I am also not unmindful of the fact that on my approach an
accused discharged under the second part of s 10(2) may in at
least some cases be subject to a number of arrests and
enquiries relating to the same causa.    It is therefore notionally
possible that at the termination of two or even more such
enquiries he may be discharged because of the lapse of a
reasonable period, and yet again be arrested and ‘tried’.   Here,
again, two points should be made.   The first is that a similar
situation may arise in criminal proceedings.  I have referred to
the example of an accused discharged because of a
magistrate’s refusal to grant the prosecution a further
postponement.   Conceivably, upon re-arraignment the same
may occur.   Yet, because there has been no judgment on the
merits he may be brought before the court for a third time.
Then, again, it is not beyond the bounds of possibility that
successive trials of an accused may be affected by gross
irregularities vitiating the proceedings.  Yet, in those
circumstances the accused may be called upon  to stand trial
for a third time on the same charge.
The second point is this.  Under s 5(1) of the Act a
magistrate has a discretion whether or not to issue a warrant.
If he is aware that the person in question was previously
discharged under the second part of s 10(2) in relation to the
same causa, he will no doubt refuse to issue a warrant unless
satisfied that the required evidence will be forthcoming within
a reasonable time.  And the organ of the State applying for the
issue of the warrant – generally an Attorney-General or his

representative – will clearly be under an obligation to disclose
to the magistrate the facts of the previous proceedings.”
[11] The extradition proceedings had been postponed pending the
appeal.  They were due to resume on 29 September 1995.   On that day they
were postponed by agreement to 13 November 1995.
[12] On 13 November 1995 the appellant gave formal notice of her
intention to seek her discharge or in the alternative to have certain
constitutional issues referred for determination by the High Court in terms of
section 103 (3) of the Interim Constitution.   The matter was postponed to
11 January 1996 to allow the State to file an answer and for the appellant to
reply to the State’s answer.
[13] The second respondent was unavailable on 11 January 1996 and
the matter was postponed to 15 February 1996, on which date the appellant
objected to the admission of certain further documents tendered by the State.
This objection was overruled on 16 February 1996 whereupon the matter
was postponed to 3 April 1996.  The matter was argued on 3 and 4 April
1996, after which  the second respondent reserved judgment.  On 26 April

1996 appellant’s application for discharge and a referral was dismissed and
the second respondent ruled that the extradition enquiry should continue.
The case was postponed to 10 June 1996 for the continuation of the enquiry.
[14] At about this time the appellant was advised by her legal
representatives that it was possible that the third warrant could be set aside
if the prosecutor had failed, when applying to the first respondent for the
issue of the third warrant, to disclose the facts of the previous proceedings
so as to enable him to exercise the discretion whether or not to issue a
warrant  which the majority of this Court held  in  the first McCarthy appeal
a magistrate has.
[15] In order to be able to establish whether the facts of  the
previous proceedings had been disclosed to the first respondent the
appellant’s attorneys endeavoured to ascertain the identity and whereabouts
of the magistrate who had issued the third warrant.  This information took
time to obtain.   When they had ascertained that the first respondent had
issued the third warrant and where he was,  the appellant’s attorneys wrote

to him on 22 May 1996 and asked for his reasons for authorising the third
warrant.   The first respondent asked for a copy of the warrant to be
forwarded to him to enable him to consider the request.  The following day
the appellant’s attorneys sent him a copy of the warrants and he replied to
the request for his reasons by saying:
“On the sworn statements put before me by the Attorney-
General I was convinced that the authorisation of the warrant of
arrest was justified and therefore I had signed it.”
[16] On 29 May 1996 the appellant’s attorneys asked the first
respondent to furnish them with particulars of the documents and
information placed before him in support of the application for the third
warrant.
On 6 June 1996 the first respondent replied that the relevant
information was in the possession of the Attorney-General for the
Witwatersrand Local Division and that the request should be addressed to
him.
[17] On 12 August 1996 the appellant’s attorneys requested the

Attorney-General to afford them access to the information in his possession
on which the third warrant was issued.  On 14 August 1996 a telephone
conversation took place between a representative of the appellant’s attorneys
and a member of the Attorney-General’s staff, who stated that Advocate
Dörfling, who handled the extradition proceedings on behalf of the Attorney-
General, was engaged in a long trial in KwaZulu-Natal and would contact the
appellant’s attorneys on his return.   On 3 September 1996 the Attorney-
General invited the appellant’s attorneys to arrange with Advocate  Dörfling
for inspection of the documents in his possession.    Ten days later, on 13
September 1996, this application was launched.
The alleged invalidity of the warrant
[18] The first point argued by the appellant’s counsel  was that the
third warrant for the appellant’s arrest was incorrectly issued because the
magistrate did not exercise the discretion bestowed upon him.  It was
contended that the State was obliged, when the third warrant of arrest was
applied for,  to disclose to the first respondent that there had been two

previous warrants of arrest issued in terms of section 5 of the Act, that the
first had been withdrawn and the second had culminated in the appellant’s
discharge in terms of section 10(2) of the Act almost a year before.
[19] I have already said that I am prepared to find for the purposes
of this appeal that the fact that there had been an unsuccessful application for
the extradition of the appellant almost a year before the application for the
third warrant was not disclosed to the first respondent before he issued the
warrant.    Counsel for the appellant contended that because the State did not
make the required disclosure the first respondent did not realise when he
issued the third warrant of arrest that there had been two previous abortive
applications for extradition against the appellant;  that the appeallant was
discharged on the second  occasion (albeit not on the merits);  that the State
had since then delayed for almost a year  its application for a third warrant
of arrest and, so it was contended, that there was no explanation for the
delay.
[20] It was contended further that if the first  respondent  had known

of these matters they would have weighed with him in the exercise of his
discretion in that he would have had to consider:
(a)
whether the required evidence would be forthcoming within a
reasonable time and  if he was not satisfied that it would be done he
would have had to refuse to issue a warrant; and
(b)
what was called the State’s delay for almost a year in applying for a
third warrant of arrest and its failure to offer any explanation for that
delay and whether in the exercise of his discretion he should grant the
warrant despite the lengthy delay and the absence of any explanation
for it, or whether justice and fairness required that he should decline
to do so.
[21] Counsel for the appellant submitted that as a result of the
State’s failure to make what they contended was the required disclosure the
first respondent failed to take into account considerations relevant and
material to the proper exercise of his discretion.   Relying on the decisions
of this Court in Johannesburg Stock Exchange and Another v

Witwatersrand Nigel Ltd and  Another 1988 (3) SA 132 (A) at 152 and
Hira v Booysen 1992 (4) SA 69 (A) at 84 and 93,  they contended that the
first respondent failed “to apply his mind to the relevant issues in accordance
with the behests of the statute and the tenets of natural justice”.   They
accordingly argued that the third warrant of arrest was improperly issued and
accordingly invalid.   These submissions, which were also advanced before
the Court a quo, were rejected by Heher J for the following reasons:
“It seems to me that the learned Judge of Appeal speaking for
the majority was saying that the magistrate to whom an
application under section 5(1)(b) is made, exercises his
discretion properly not merely by satisfying himself that the
jurisdictional requirements of that section have been satisfied,
but also by being awake to any facts which might render the
authorisation of the warrant an abuse of the powers conferred
on him, as for example that the application is being launched
without adequate grounds for believing that the evidence
necessary to justify the issue of an order for committal will be
forthcoming within a reasonable time of the arrest of the
suspect pursuant to the warrant which is applied for.
However, the fact of previous arrest and detention (even of
substantial length) would, as the learned Judge’s analogy with
arrests in ordinary criminal cases makes clear, not per se

constitute such an abuse where the necessary evidence is
immediately available.  That availability lay at the heart of the
application before the first  respondent.   That was the point of
obtaining the supplementary affidavits which were furnished to
the first respondent (albeit that he was not in terms so
informed).”
He proceeded to point out that there had been placed before the first
respondent, in addition to the original documents which had been found to
be defective by the magistrate who had discharged the appellant on 22
November 1990, certain supplementary affidavits which clearly overcame the
technical objections which had previously been upheld and that the
information placed before first respondent was clearly sufficient to justify the
exercise of his powers under section 5(1)(b) of the Act.
[22] The point raised by the appellant’s counsel regarding the alleged
unexplained delay was dealt with as follows:
“The magistrate could not but have been satisfied that the
evidence was immediately available.  I do not agree with the
submission of applicant’s counsel that it was necessary for the
State to explain the ‘delay’ in applying for the third warrant of
arrest.   The applicant had not been detained since the previous

warrant was discharged. . . . [T]he treaty and the legislation are
directed to protecting liberty.   That was not in issue here.   The
failure of the State to place before the magistrate information
concerning the applicant’s previous arrests and discharge was
accordingly not a factor which the first respondent needed to
take into account once the evidence was complete.   Disclosure
would only have been relevant to the extent that the reason for
the previous discharge had not been overcome by the time that
the application was made to the first respondent.   The
irregularity (if such it was) in failing to apprise him of the
history, was one without substance.”
[23] In the view that I take of the case  the so-called “delay” was not
relevant to the point as to whether the warrant was invalidly issued.    It is
relevant, however,  in regard to the second  point  argued and I shall
accordingly deal with it when I consider  the appellant’s argument that an
indefinite stay should have been granted.
[24] As I see it,  the only point to be considered at this stage is
whether there was a material non-disclosure by the State such  as vitiated the
magistrate’s decision to grant the warrant.  I have already found that the State
did not disclose the previous applications and the appellant’s discharge to

the first respondent.   In my opinion  if these facts had been disclosed to the
first respondent they would not have affected his decision to grant a warrant.
The position would have been different if the deficiencies had not been
rectified.   If that had been so the first respondent would and should have
refused to grant the warrant until satisfied that the problems previously
encountered had been rectified.   But this had already happened.
[25] There was nothing in what had preceded the application for the
third warrant to justify the magistrate in coming to the conclusion that enough
was enough and that  the time had come to put his foot down firmly and
refuse the application.   Indeed, if he had done so I have no doubt that the
State could successfully have reviewed a refusal by him to grant the warrant.
[26] In my view Heher J correctly rejected the appellant’s counsel’s
contention that the third warrant should be set aside.
The application for an indefinite stay
[27] In support of this prayer the appellant’s counsel submitted  that
their client was entitled to the protection afforded to accused persons

embodied in section 25(3)(a) of the Interim Constitution , which provided:
“(3)
Every accused person shall have the right to a fair trial
which shall include –
(a)    the right to a public trial before an ordinary court of
law within a reasonable time after having been
charged”.
[28] This relief was argued before the second respondent who
refused it on the ground that section 25(3)(a) did not afford a right to a
person who was the subject of extradition proceedings and that the section
only applied to persons charged with an offence in the Republic and not to
a person such as the appellant who had not been charged  and who was the
subject in this country of extradition proceedings which were not a trial.
[29] Heher J did not agree with the second  respondent on this point.
In his view a person subject to extradition proceedings in this country was
entitled, while the Interim Constitution was in force, to invoke the protection
of section 25(3) (a) if  able to show that no trial had  taken place within a
reasonable time of being charged.
[30] In view of the fact that I have come to the conclusion that  the

appellant has not shown unreasonable delay in this matter such as to justify
an  indefinite  stay,  either in terms of section 25(3)(a) of the Interim
Constitution  or  section 35(3)(d) of the Constitution, it is unnecessary for
me to decide whether the views of the second respondent on this point are
to be preferred to those of Heher J.   I shall assume in what follows that the
appellant is entitled, should the delay in disposing of her case be
unreasonable, to an order for an indefinite stay and that the legal position in
regard to  the effect of delay in the case of persons charged in the Republic
with criminal offences, as expounded by the Constitutional Court in
Sanderson v Attorney General, Eastern Cape 1998 (2) SA 38 (CC) and
Wild and Another  v Hoffert NO and Others 1998 (3) SA 695 (CC),  applies
in her case also.
[31] In my opinion, in order to decide whether the period that has
elapsed since the appellant was first charged (which I am prepared to assume
for present purposes took place when she was arrested on the first warrant
on 11 September 1990) was such that one can say there has been

unreasonable delay, it is necessary to divide up the period  to see what
occasioned the delay.
[32] The first period to be considered  is from 11 September 1990,
when the appellant was first arrested (and released on bail) to 22 November
1990 when she was discharged.    This was the period covered by the first
extradition enquiry in the magistrates’ court. It was postponed thrice at the
State’s request for it to obtain the necessary evidence.  I do not regard this
period as excessive or unreasonable.
[33] The period from 22 November 1990, when the appellant was
discharged, to 8 November 1991, when she was arrested on the third
warrant, is undoubtedly for the State’s account.   Did it amount to
unreasonable delay?   The appellant’s counsel contended strongly that it did
and they described it repeatedly in their argument as an unexplained delay.
[34] I do not agree that it can be so described.   The delay is
explained as follows in an affidavit deposed to by Mr K M Attwell, then the
Acting Attorney-General for the Witwatersrand Local Division:

“Following on the finding by the magistrate, the respondent
proceeded to get the papers in order and to supplement the
papers with the necessary further documentation.   Further
papers were duly requested from the USA through diplomatic
channels: this in itself is a time-consuming and lengthy process.
Statements and supplementary documents had then  to be
revised and further requests made in order to settle such further
documentation.   A new warrant was then issued for the arrest
of the applicant on 7 November 1991 - just less than one year
from the date of the previous hearing on 22 November 1990.”
This statement was not disputed and in the light thereof one cannot say that
the period of just under one year was inordinately long nor that there is any
unexplained delay.
[35] Since the third warrant was authorised and executed on 8
November 1991 approximately nine years have elapsed.  I have summarised
in paragraphs [7] to [17] above what has taken place.      Some of the time
has been lost  through the appellant’s  failure to raise points of objection and
file papers earlier than she did.    I am prepared to assume, however, that the
time which was lost in this way was not inordinate.   The time from 10
December 1991 to 23 May 1995 was spent on an unsuccessful plea of res

judicata, which,  though it ultimately failed,  was held by two Judges of this
Court to be correctly raised.    So again it would not be fair to blame the
appellant for the time so used.    Further time was spent on the application
for the referral of constitutional issues and then the attack on the warrant.
In my view such delays as these were may be described as systemic delays
in our courts.
[36] Though procedures exist for expediting the hearing of urgent
matters and in the process abridging ordinary limits and avoiding delays, it
is common cause that neither the appellant nor the State availed themselves
of these procedures.   Even in the case of the present appeal the
representatives  of the appellant, in the practice note which accompanied
their heads of argument, stated that the appellant was out on bail and that no
special reasons existed for them to request precedence on the roll.   The
appellant’s counsel submitted that the systemic delays were attributable to
the third respondent, the State, and not to the appellant.
[37] The topic of systemic delay was dealt with by Kriegler J in the

Sanderson case supra, at 56G - 57 B ( para [35] )  as follows:
“The third and final factor I wish to mention is so-called
systemic delay.   Under this heading I would place resource
limitations that hamper the effectiveness of police investigation
or the prosecution of a case, and delay caused by court
congestion.   Systemic factors are probably more excusable
than cases of individual dereliction of duty.   Nevertheless,
there must come a time when systemic causes can no longer be
regarded as exculpatory.   The Bill of Rights is not a set of
(aspirational) directive principles of State policy – it is intended
that the State should make whatever arrangements are
necessary to avoid rights violations.  One has to accept that we
have not yet reached that stage.   Even if one does accept that
systemic factors justify delay, as one must at the present, they
can only do so for a certain period of time.   It would be
legitimate, for instance, for an accused to bring evidence
showing that the average systemic delay for a particular
jurisdiction had been exceeded.  In the absence of such
evidence, courts may find it difficult to determine how much
systemic delay to tolerate.  In principle, however, they should
not allow claims of systemic delay to render the right
nugatory.”
[38] Heher J held that he could not find that the systemic delay had
been anything other than reasonable within the context of our legal system as

the workings of its procedures and courts were known to him.
[39] No attempt was made by the appellant to show  that the average
systemic delay for any particular jurisdiction, either the Johannesburg
magistrates’ court or the Witwatersrand Local Division or this Court, had
been exceeded.
[40] I am in agreement with the view expressed by Heher J that it is
not possible to find that the systemic delay encountered in this case has been
anything other than reasonable in the context of our system.   Nor can it be
found that the systemic delays  under consideration here have rendered
nugatory the appellant’s right to have her trial begin and conclude without
unreasonable delay.
[41] Heher J set out the factors to be worked into the balance of the
respective interests of the appellant and the State and the conclusion to
which he came in the following passage in his judgment:
“First, in excess of five years elapsed between the alleged
commission of the crime and the first attempt to extradite the
applicant from the Republic.   I am not, for the moment,
interested in why there was this delay; the fact is that it took that

long for the law enforcement authorities of the United States to
catch up with the applicant.  This initial delay is important
because the effect of what followed cannot be considered
independently but must be seen as an exacerbation of an
already unsatisfactory situation.
Second, a further seven and a half years has passed since the
applicant was first arrested and the charge brought to her
attention.   Since the judgment of the second respondent,
almost a year and a half has been taken up by the present
litigation.
Third, the lapse of more than thirteen years since the critical
events must of itself (and even without evidence on the part of
the applicant) suggest very strongly that the fairness of the trial
will be materially adversely affected, in at least the following
respects: the applicant’s recollection of events, the tracking
down of such witnesses for the defence as may survive, the
willingness of witnesses  to testify, the recollection of those
witnesses and the procurement of real evidence.
Fourth, the absence of fault on the part of the applicant in
relation to the delay cannot be ignored.   As to the initial period,
there is no firm evidence one way or the other.   Thereafter, the
applicant contributed nothing but acceptable steps directed at
enforcing what, so she was no doubt informed, were her legal
rights.  The major delay was occasioned by the appeals to this
Court and the Supreme Court of Appeal.   The judgment of the

latter indicates how very close she came to complete success.
Fifth, the degree of ‘fault’ on the side of the State is limited to
the initial period of about a year during which it was attempting
to get the formalities of the extradition application in order.
Although there has been no explanation for that delay, the facts
of the matter speak, in some degree, for themselves.   While the
authorities in the United States were, no doubt, entitled to some
degree of latitude in putting the technicalities right, it is a matter
for adverse comment that nothing positive seems to have been
done between November 1990 and August 1991, and little
between August and November of that year.   Since then the
State has been ready to proceed but has been totally frustrated
by the (not unreasonable) exercise of the applicant’s legal
rights.
Sixth, the prejudice personal to the applicant arising from the
delay has been substantial.   Since November 1990 the
applicant has been released on bail.   The conditions have been
onerous, involving regular reporting to the police.   The
disruption of her personal life while justifiable within reasonable
limits as in the case of any accused, has over the extended
period of delay been material.   In her affidavit in support of her
application before the second respondent the applicant details
the personal prejudices suffered by her as follows:
‘16.
To date, I have thus been hounded within the Republic
of South Africa by the Government of the United States
of America for a period in excess of five years,
commencing on 11 September 1990.  This has caused

me personal and financial prejudice.
I have not been able to travel freely within the Republic
of South Africa, and have had my bail monies in the sum
of R30 000,00 tied up over various periods of time.  I
have also been required to report regularly to the South
African Police Services and compelled to request their
permission to leave the Gauteng area.   This in turn has
caused problems with my studies, which were hampered
by these interruptions, and my ability to work.   I have
been compelled to make a full disclosure of my situation
to various potential employers and have thus foregone
several career opportunities.
This case has enjoyed vast media coverage, which has
had a detrimental effect on my personal life and career.
I have suffered from stress, causing  me endless
sleepless nights and have had to seek psychological
assistance.
I have also suffered from severe migraine headaches,
which were blinding and incapacitating as a result of the
stress of this recurrent application for my extradition.  I
have been prescribed various prophylactic  medication
to assist me with my migraines and the stress.   This in
turn caused me digestive problems, and I thus suffer
from an irritable bowel syndrome which is stress-
induced.
My husband and I have made arrangements to adopt a
child, but due to this application for my extradition and
the uncertainty of my future as a result thereof, we had
to cease out attempts to do so.  I have been advised
that, with increasing age, the prospects of succeeding in
adoption proceedings diminish and that it is unlikely that
I will now be able to adopt a child.
I obtained a degree of Bachelor of Science in 1966 at the
University of the Witwatersrand.   I then went on to
complete my Bachelor of Science Honours at the same

university in 1968.   Thereafter I read for my Masters of
Science in Mathematics at the London University in
1969.   Despite the hinderance of these continuing
extradition proceedings, I obtained my Bachelor of Arts
Honours in Psychology at the University of the
Witwatersrand in 1991.   I then read for my Masters of
Education Psychology at the very same university in
1993.
I am currently in private practice as an Educational
Psychologist and actively involved in community work
and the development of psychotherapy in the Republic
of South Africa in general.  I am also furthering my
professional training by doing an extra curricular diploma
in Integrative Psychotherapy and attending various
workshops that occur here by visiting psychologists and
psychiatrists.
I have not been able to realise my full potential in training
due to the restrictions on my mobility.   Inter alia, I was
unable to attend a professional conference  on child
psychology known as the ACCAPAC - Conference,
which was held in Durban during June and July 1995.
I have not even been able to take a vacation in the Kruger
National Park, due to objections by the representatives
of the Government of the United States of America.   I
have now requested permission to take a vacation in
Plettenberg Bay for three weeks commencing Saturday
18 November 1995, and have been informed that I will
have to deposit a further amount of R30 000,00 as bail
with the duration of my vacation, and report daily whilst
on vacation.’
It appears from the foregoing that there are many and weighty
factors in favour of assisting the applicant if that can be done
in the context of fairness to both parties.   As emphasised by
Kriegler J in Sanderson’s case supra the length of elapsed time
is obviously central to the inquiry (at para 28).   Prima facie it

is very great.   It seems however that there is one critical feature
upon which this aspect of the case must turn.   At paragraph 33
of Sanderson’s case Kriegler J said:
‘I would suggest that if an accused has been the primary
agent of delay, he should not be able to rely on it in vindicating
his rights under section 25(3)(a).   The accused should not be
allowed to complain about periods of time for which he has
sought a postponement or delayed the prosecution in ways that
are less formal.  There is, however, no need for the accused to
assert his right or actively compel the State to accelerate the
preparation of its case.   Provided he has genuinely suffered
prejudice as a result of the State’s delay, he cannot be
responsible for the State’s tardiness.’
In this context, save for the initial delay of eleven months, the
State has been fully prepared to pursue the application.   That
it has not done so has been entirely due to the tactics of the
applicant (legitimate and without criticism though there may
have been).  In short, since November 1990 [I take it this is a
misprint for 1991] the applicant has been almost the sole agent
of delay.   It is true that much of the delay has been systemic in
nature but all (save for the period from 11 January to 15
February 1996) has stemmed from the actions of the applicant.
I am unable to find that the systemic delay has been anything
other than reasonable within the context of the South African
legal system as the workings of its procedures and courts are
known to me.  In these circumstances, the consequences of
delay, namely, the personal suffering, restrictions on freedom
flowing from bail conditions and the problems inherent in the
preparation and presentation of a defence at so great a remove

in time and place from the events of 1985 are likewise to be laid
to the applicant’s own charge.   I have read painstakingly the
judgment of Kriegler J with the view to finding, if I can, a route
fair to the interests of the State which would enable me to
rationalise for the benefit of the appellant the delay in bringing
the extradition proceedings to finality.   I find, however, that the
way is barred by the applicant’s conduct.  Any other
conclusion would in future hold out the prospect to accused
persons (whether in extradition or trial proceedings) that if they
are able, by the employment of astute legal advisers, legitimately
to hold the State at bay for long enough, they will eventually
escape prosecution.   This is not a case where the initial eleven
month delay is sufficient to cause me to find that that of itself
is a violation of section 25(3)(a) which, seen in the wider
picture, justifies an order staying further proceedings against the
applicant under the Act.   In the result I conclude that the
objection of unreasonable delay is unsound and that the
applicant’s reliance upon section 25(3)(a) of the Constitution
must be rejected.”
[42] Counsel for the appellant submitted that Heher J erred in holding
that a large number of the delays were caused by the  route followed by the
appellant and that since November 1991 she had been almost the sole agent
of delay.   It was contended that Heher J erred because he had in effect

attributed systemic delay to the appellant.
[43] I do not read his judgment in that way.   But even if that is what
he held, nothing turns on the point in my view because, as was clearly stated
in Sanderson, supra, at 57, paragraph [35], systemic factors, at present, do
not tend to justify an indefinite stay  unless an accused shows, inter alia,
that the average systemic delay for a particular jurisdiction has been
exceeded (which is not the case here) or any other delay is of such a nature
as to render the right  nugatory (which for the reasons that follow I do not
consider happened in this case).
[44] What is important in this regard is the nature of the relief
claimed by the appellant, i e, an indefinite stay, something which, according
to Sanderson, supra,  (at 58, paragraph [38] ) is far-reaching and will seldom
be warranted in the absence of significant prejudice to the accused.   See
also the Wild case,  supra, at 708,  paragraph [27],  where it was said that
in the absence of trial prejudice claims for a stay of prosecution (which is in
effect what the appellant seeks) “must fail unless there are circumstances

rendering the case so extraordinary as to make the otherwise inappropriate
remedy of a stay nevertheless appropriate”.   No such extraordinary
circumstances  are, in my judgment, present in this case, so it becomes
necessary to have regard to the question  whether trial prejudice is present
here.
[45] The trial prejudice relied on is summarised by Heher J in the
passage quoted above where he said that the lapse of 13 years (now 15)
since the alleged conspiracy “suggest very strongly that the fairness of the
trial will be materially adversely affected, in at least the following respects:
the applicant’s recollection of events, the tracking down of such witnesses
for the defence as may survive, the willingness of witnesses to testify, the
recollection of those witnesses and the procurement of real evidence”.
[46] I do not think the grounds of prejudice listed in the passage I
have quoted (on which the appellant’s counsel strongly relied in argument
and to which they did not seek to add) are sufficient   to justify the far-
reaching remedy of an indefinite stay.   At least some of the handicaps from

which the appellant will suffer may well also render the prosecution’s task
more difficult, in particular those relating to the availability fifteen years on,
of witnesses and their recollection of events.   Furthermore these points
which will all have a bearing on the question of proof beyond reasonable
doubt  will be able to be brought to the attention of the jury with all the
emphasis at the command of her legal representatives.
[47] In U S v Trammell 133 F 3d 1343, 1351 (10th Cir. 1998),  a
case in which an accused alleged that his due process rights had been denied
by delay in indicting him,  Briscoe, Circuit Judge, with whom Toche and
McKay, Circuit Judges, agreed, said:

“Vague and conclusory allegations of prejudice  resulting from
the passage of time and the absence of witnesses are
insufficient to constitute a showing of prejudice.  Defendant
must show definite and not speculative prejudice, and in what
specific manner missing witnesses would have aided the
defense.  United States v Jenkins, 701 F. 2d 850, 855 (10t h
Cir.) 1983.”
[48] I am not sure that one need go so far as that in this case, but
something more than the factors listed in Heher J’s judgment, not backed by

specific averments by the accused person in question, is in my view required
before the far-reaching remedy of an indefinite stay can be granted in a case
such as this.
[49] In my view also there is considerable force in Heher J’s
observation which I have already quoted that the grant of an indefinite stay
in a case such as this would hold out to accused persons the prospect that
they will eventually be able to escape prosecution “if they are able, by the
employment of astute legal advisers, legitimately to hold the State at bay for
long enough”.
[50] In the present case it is clear, as I have already pointed out,  that
the State has been ready to proceed since November 1991 and the delays
since then have been occasioned by the steps taken by  the appellant.   She
may not be to blame for the bulk of the delays since then but neither is the
State and the systemic delays are not such in the circumstances as to warrant
the granting of an indefinite stay.
[51] Although a costs order was made against the appellant in the

Court below, as this case is in substance a criminal proceeding no cost order
should have been made: see Sanderson, supra, at 60 H -61 B (paragraph
[44] ) and Harksen v President of the Republic of South Africa and Others
2000 (2) SA 825 (CC) at 837 D (paragraph [30] ).
[52] The following order is made:
The appeal is dismissed, save that the order in the High Court
directing the appellant to pay the costs of those proceedings is
set aside.

____________________
I G   FARLAM.
HEFER JA        )
NIENABER JA)
HOWIE JA       )          CONCUR
ZULMAN JA   )