ConCourt hands NPA a lifeline in Moroadi Cholota extradition ruling — but denies it key powers

The Constitutional Court has ruled that the National Prosecuting Authority (NPA) does not have the power to request the extradition of suspects from foreign countries, but it said this mistake does not automatically mean existing criminal cases must fall apart.

In a unanimous judgment delivered by Deputy Chief Justice Dunstan Mlambo on Friday, 23 January 2025, the court overturned a Free State High Court decision that had stopped the prosecution of former Free State premier and ANC secretary-general Ace Magashule’s former personal assistant Moroadi Cholota.

Cholota was extradited to South Africa in August 2024 in connection with the R255-million asbestos scandal, which included charges of fraud, corruption, theft and racketeering.

The High Court had initially ruled that the NPA had no power to try Cholota because her extradition was requested by the Director of Public Prosecutions (DPP), instead of the national executive.

The Constitutional Court agreed with the High Court’s earlier outcome that Cholota’s extradition was unlawful. It said the DPP did not have the authority to request her extradition from the US. However, the court ruled that this mistake does not mean Cholota and others should escape trial.

Read more: ConCourt to hear NPA extradition case that will decide the fate of alleged criminals abroad

“A court is only divested of its criminal jurisdiction in cases where the exercise thereof would bring the administration of justice into disrepute,” the justices said.

In this case, the court found no such risk.

The court said prosecutors acted in good faith and believed they had the power to request extradition at the time.

“The NPA operated under the bona fide assumption that it had the necessary authority to request extradition,” the judgment said.

There was no sign that prosecutors deliberately broke the law or tried to abuse the system, the court said.

The NPA’s national spokesperson, Bulelwa Makeke, has since welcomed the court's decision, which will see Cholota’s case remitted back to the Free State High Court.

“The NPA welcomes this judgment and will now focus on dealing with the remaining grounds of appeal in Ms Cholota’s special plea, which are strongly opposed, on the basis that they lack merit,” Makeke said.

The court also said there was no reason to believe the extradition would not have been approved if the correct authority had been involved.

“There was no suggestion that, had the executive and the NPA been aware of the correct legal position, Ms Cholota’s extradition would not have been requested correctly.”

Extradition is not the NPA’s job

Going forward, the Constitutional Court made it clear that extradition requests must be made by the national executive, not the NPA. This is because extradition involves communication between countries and affects foreign relations, the court said. Because of this, it falls under executive power.

“The separation of powers principle forbids the NPA from controlling the entire process.”

Importantly, the court corrected an earlier Supreme Court of Appeal (SCA) ruling on one key point: that it is not only the minister of justice who may issue extradition requests, but rather, the power lies with the national executive as a whole, acting through appropriate constitutional channels.

In its court papers, the NPA had argued that the SCA’s finding undermined the NPA’s independence and opened the door to political interference in the justice system. The court, however, disagreed with this view.

“While the court recognised the importance of prosecutorial independence, it found that prosecutorial independence does not license the NPA to exercise powers beyond its ambit of authority. The NPA possesses broad powers over prosecutorial proceedings, which cover much of the domestic stage of outgoing extraditions. As a domestic state organ, however, it cannot represent South Africa at a state-to-state level.

“Therefore, although the final authority to make outgoing extradition requests could affect domestic prosecutions, the court found that the NPA cannot exercise the external sovereignty inherent in such requests,” the court ruled.

Read more: Shamila Batohi and the NPA’s week from hell — Failed extradition and calls for her resignation

Prosecutors can prepare cases and documents, but they cannot act for South Africa at a state-to-state level.

The court also criticised how the extradition issue was handled during Cholota’s trial.

It said the argument about unlawful extradition was raised only during closing arguments, which was unfair to the State.

“Advancing a new ground for a special plea during the closing address deprived the State of the opportunity to respond, in violation of section 106(3) of the Criminal Procedure Act,” the court found.

Beyond this, Mlambo said that the Free State High Court erred in its decision to dismiss the State’s objection on this issue.

Schultz matter

The Constitutional Court heard Cholota’s case alongside that of Jonathan Richard Schultz, a South African resident who was among those arrested in 2019 in connection with the alleged theft and sale of unwrought precious metals. Schultz, who now lives in the US, initially brought the case challenging his extradition.

Beyond his extradition, his case also sought to challenge the long-standing practice in South African law: who has the power to ask another country to extradite someone to South Africa to face trial, something which the NPA has done for more than 60 years.

Schultz argued that only the justice minister can make extradition requests, not the NPA. But in 2022, the Pretoria High Court sided with the NPA, which argued it had done so in good faith for decades.

The National Director of Public Prosecutions (NDPP) and provincial DPPs argued that extradition has two parts: domestically, the NPA decides if someone should be extradited under the Constitution; internationally, the Department of International Relations and Cooperation (Dirco) sends the request to the foreign country, whether it started with the NPA or the justice minister.

In December 2024, however, the Supreme Court of Appeal (SCA) overturned the Pretoria High Court decision and agreed with Schultz when it ruled that the NPA had, in fact, overstepped because the Extradition Act of 1962 never explicitly gives the NPA the authority to make outgoing requests.

That decision, known as the Schultz judgment, effectively meant that every extradition request the NPA had ever made could now be challenged as invalid, because they had been made by the wrong authority.

The NPA sought to challenge this decision on an urgent basis, citing that “the public’s confidence in it is undermined by further challenges to extradition requests that were unlawfully made”.

It suffered a blow last year when the court found the matter was not urgent despite the prosecution’s plan to bring about new evidence.

Schultz’s legal team at the time, Ian Levitt Attorneys, had argued that the NPA had been aware that “other Schultz-like challenges could be brought”, but still “did nothing for more than four months”.

Appeal denied

On Friday, the Constitutional Court refused to allow a late leave of appeal application on the Schultz matter, criticising the NPA’s reasons for late filing, saying it “left much to be desired”.

The NPA said part of the delay happened because it thought the Department of Justice would appeal, and because it was hard to get counsel owing to the State Attorney’s slow processes.

“The court found that neither of these reasons was satisfactory. A litigant cannot escape the obligation to comply with the court’s rules on the mere allegation that it thought another cited party would lodge an appeal,” reads the judgment.

The court found the risks, as argued by the NPA, were largely overstated and that the legal system could handle it.

“Even without the relief sought by the applicants to limit the retrospectivity of the Supreme Court of Appeal’s judgment, the harm they feared to the administration of justice is largely, if not completely, ameliorated,” the court found.

The NPA has been ordered to pay Schultz’s costs, including the costs of two counsel.

Makeke said: “The apex court dismissed NPA’s application for condonation of late filing of the appeal in the Schultz matter, and therefore did not deal with the merits of the matter. The NPA takes the view that, on a careful reading of the Schultz SCA judgment, it was never meant to be retrospective. Each pre-Schultz extradition matter will be dealt with on its own merits.” DM