It is common for those in South Africa facing extradition to another country to push ahead with meritless appeals and reviews to avoid or delay being sent packing.

There is the assumption they will not lose anything or be saddled with legal costs if those legal processes backfire.

This is according to a Western Cape high court judgment, delivered on Friday 16 September, in which it was found Lee Tucker of the UK is eligible for extradition there, despite several attempts of his to avoid this.

Tucker, who acknowledged he was a fugitive and who was effectively deemed a flight risk, has also been found liable for costs in trying to have the matter against him reviewed by the high court.

Vexatious and incompetent 

He was fortunate, according to the judgment, that a costs order on a punitive scale had not been pushed for because circumstances merited it.

The judgment related to previous proceedings in a lower court during which Magistrate Vusi Mhlanga in November 2017 found Tucker was liable to be extradited to the UK.

Following this 2017 finding, Tucker and his legal team pushed back in a manner the judgment found “vexatious,” leading to the magistrate subsequently referring the matter to the high court for review.

This review is what has backfired on Tucker, with the Western Cape high court judgment finding that the magistrate’s decision to refer the matter for review was “incompetent” and breached “the principle of legality.”

SA courts won’t condone ‘sneaky’ extraditees

“As is so graphically illustrated by the circumstances of this matter… many years go by and much unnecessary expense is incurred by the SA state, in dealing with applications for extradition from foreign states, and this country is frequently criticized as being a haven for fugitives,” the judgment said.

“Consequently, in my view, it is necessary that it be made clear that our Courts will not allow themselves to be misused by extraditees who merely seek to delay repatriation to their countries of origin in order that they might face justice, by means of frivolous or vexatious processes, and for those who engage in such tactics there will be a price to pay.”

The judgment, therefore, found Tucker was liable for extradition.

It also found that the magistrate who previously dealt with the case and flagged it for review with the high court “surely disqualified himself from providing a reliable, unbiased and objective report” to Justice and Correctional Services Minister Ronald Lamola.

Lamola would therefore now have to decide about Tucker’s extradition without the magistrate’s input.

1990s investigations in the UK

A history of how Tucker became the focus of criminal charges was detailed in Friday’s judgment.

In 1997, police in Britain started investigating the activities of a paedophile ring operating in areas including Cardiff and Swansea, as well as in Caerphilly, Wales.

Charges that developed from those investigations partially related “to the alleged rape and sexual assault of children between 1983 and 1993, in England and Wales.”

Several men were prosecuted.

The judgment said Tucker and two other men were arrested in late 1999 “and arraigned in the Bristol Crown Court on some 31 counts which involved sexual offences such as ‘buggery’ (sodomy) and indecent assault.”

One of the two arrested men pleaded guilty to some of the charges.

Children drugged and sexually assaulted

Tucker and the second arrested man went on to be tried.

“During the trial that followed the complainants testified that… [Tucker] and his co-accused had non-consensual anal and oral sex with them at various locations in England and Wales, when they were under the age of 16 years, and often at a time when they were drugged or under the influence of alcohol,” the high court judgment said.

In October 2000 Tucker was found guilty of nine out of 28 counts, while his co-accused was convicted of 10 counts.

Tucker was not present when this verdict was handed down — he absconded two days earlier so was also not present when he was sentenced to eight years in jail.

“Although he was a fugitive, he nonetheless lodged an appeal [in the UK] against his conviction,” the high court judgment said.

In May 2002 Tucker was successful — the Court of Appeal overturned the convictions “because the trial judge’s summing-up for the jury had been inadequate.”

Tucker was not off the hook though; it was ordered that Tucker and his co-accused be retried on the charges.

Another indictment was lodged against them and in July 2002 an arrest warrant was issued for Tucker.

Fugitive in SA

“Some 14 years after Tucker absconded the British police received information that he was living in South Africa,” the Western Cape high court judgment said.

He was arrested in Cape Town in March 2016 and so began the UK’s battle to have him extradited there.

It also subsequently emerged there were more charges against Tucker, for which he was not previously prosecuted for.

“The remaining charges emanated from additional complainants who had been traced following a further investigation,” the Western Cape high court judgment said.

In November 2017, the magistrate in Cape Town found Tucker could be extradited to the UK.

He was detained in custody pending the Justice Minister’s decision relating to his extradition.

Inappropriate and improper

Tucker pushed ahead with various legal processes to try and have this — the extradition finding and his detention — overturned.

During subsequent proceedings, according to the high court judgment, he was given the opportunity to only “place documentary evidence pertaining to the alleged unfair media coverage to which he had been subjected before the magistrate.”

Instead, though, Tucker placed before the magistrate an affidavit challenging his extradition, even though this had already been ruled on back in 2017.

The high court judgment was scathing in this regard: “It was wholly inappropriate and improper for such an affidavit to be placed before the magistrate, and Tucker and his legal representatives took advantage of him by putting inadmissible material before him which they were not allowed to submit, which they suggested was true, which they then utilised to persuade the magistrate to send the matter on review to this Court.”

‘Surprising’ claims of innocence and homophobia

In 2021 Tucker also “surprisingly” made claims that he had not made back in 2017.

According to the high court judgment, Tucker asserted that “he had previously been found not guilty on 44 of the 50 charges on which he was being sought in the UK, and according to him the remaining 6 charges did not constitute criminal offences in the UK.”

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Tucker further claimed, “the UK police and prosecution services were aware of the acquittals and their pursuit of him was driven by homophobia and malicious intent.”

Eventually, the magistrate in Cape Town who in 2017 found that Tucker should be extradited, questioned whether sufficient details about the offences Tucker was accused of had been presented back then.

“Consequently,” the high court judgment found, “[the magistrate] was of the view that he had the authority to reconsider the order he had made in terms of which he held that Tucker was liable to be extradited.”

But the high court judgment also found that: “The magistrate clearly failed to recognise that the presiding officer at an extradition enquiry is required only to determine the extraditabiity of an extraditee, not his or criminal culpability that is a matter for the trial court in the foreign state.”

‘Unacceptable’ criticism of US jury system

The Western Cape high court judgment also referenced comments the magistrate had made about other judicial processes in the UK and US.

“Of great concern is that the magistrate also went on a lengthy excursus in which he sought to criticise the jury system in the UK and the USA, particularly in relation to the effect which media publicity may have on trials which juries are required to adjudicate upon,” it said.

“Given that the requesting state in this matter is the UK, why the magistrate saw fit to express a view in relation to the application of the jury system in the USA, is beyond comprehension…

“It was unacceptable because it is not for our courts, let alone magistrates in extradition-related proceedings, to criticise the legal systems of other countries, whatever our view of them may be.”

The judgment said the magistrate’s conduct was “even more perplexing” because Tucker had never brought into question the workings of the English jury system.

“There was accordingly no cause or need for the magistrate to express any view thereon, let alone in respect of the American jury system.”

‘Failure of justice’

It was during follow-up proceedings that unfolded in November 2021 that the magistrate decided to refer the Tucker case to the Western Cape high court for review.

The judgment said the basis for this was that the magistrate felt there had been “a failure of justice” during the 2017 proceedings and “he had erred in holding that Tucker was liable to be extradited.”

“In response to this, the Director of Public Prosecutions, in turn, seeks to review and set aside the magistrate’s decision to refer the matter to this Court, on the basis that it was irregular and incompetent in law.”

The Director of Public Prosecutions succeeded on Friday, meaning Tucker’s legal team was unsuccessful in having the matter reviewed in his favour.

Pilot skills equal flight risk

Tucker, according to the Western Cape high court judgment, admitted to being a fugitive from justice who absconded from a trial in the UK back in 2000 when it looked like he was going to be convicted.

“After coming to SA he purchased a property in Greenpoint, Cape Town and took up employment as a helicopter pilot,” the judgment said.

“He served as a pilot for the helicopter on the SAS Agulhas, on its voyage to Marion Island. A person with such skills obviously has an advantage regarding their ability to leave the country and thereby to evade the long arm of the law.”

Adding to concerns about Tucker possibly evading the law was that following his March 2016 arrest in Cape Town, he successfully applied to be released from custody on bail.

Possible tracking device tampering

This was based on the understanding he would be confined to his home while wearing an electronic monitoring and tracking device, which was viewed as a privilege as not just anyone arrested was allowed the same.

“He breached his bail conditions by ‘tampering’ with the device, rendering it inoperative, although he claimed this occurred accidentally,” the high court judgment said.

It found: “There is an increased and very real likelihood that, in the event that he were to be released on bail now, pending the outcome of the Minister’s decision, he will abscond again.”

Tucker was therefore being detained.

His fate is now in Lamola’s hands.

The Western Cape high court ordered that a complete record of legal processes relating to Tucker be forwarded to Lamola within 15 days from Friday 16 September, “for his decision as to the surrender of Mr Lee Nigel Tucker to the UK.” DM