News24 – article by Bernadette Wicks
The Constitutional Court has upheld self-confessed paedophile Iain Wares’ challenge to South Africa’s bail laws for extraditees.
Accused of sexually abusing several former pupils at Edinburgh Academy and Fettes College in Scotland – including acclaimed BBC broadcaster Nicky Campbell – while teaching there in the 1960s and 70s, the 85-year-old Wares was found liable to be extradited by the Simon’s Town Magistrate’s Court in 2019.
The State successfully overturned a ruling from the magistrate at the time, which extended Wares’ bail pending a final decision on his extradition from the justice minister.
Wares subsequently brought a constitutional challenge to the act, and the Constitutional Court rules in his favour on Tuesday.
The case initially came before the Western Cape High Court, which, too, found in favour of Wares. It was then sent to the Constitutional Court for confirmation.
In a unanimous ruling penned by Acting Justice Nambitha Dambuza, the apex court honed in on seciton 12(1)(a) of the Constitution, which provides that “everyone has the right to freedom and security of the person, which includes the right not to be deprived of freedom arbitrarily or without just cause.”
“There can be no doubt that the mandatory committal under section 10 and 13 [of the Extraditions Act] pending the Minister’s decision or other further developments, without individualised assessment of necessity, undermines the procedural facet of the right protected under section 12(1)(a) of the Constitution, and renders the committal arbitrary,” it said.
“The procedural violation lies in the absence of a mechanism for a judicial determination as to whether continued determination serves the interests of justice in a particular case after the committal order is made”.
Said the apex court, the Constitution’s provisions on fair trial rights were also undermined.
Once a court had found an individual was liable for extradition, “a mechanism for considering whether the interests of justice permit release pending the Minister’s decision or any review proceedings” was required, it said.
While the State did not oppose the case in either the High Court or the Constitutional Court, it had wanted the apex court to order a different reading-in to that of the High Court while Parliament was working on bringing the act up to scratch, which it had two years to do.
The High Court’s reading-in was to the effect that “the magistrate issuing the order of committal may grant bail or extend the bail of the person brought before him, if the interests of justice permit that person’s release or continued release on bail, pending the Minister’s decision to be made…or pending any review of the Magistrate’s decision made”.
The version proposed by the State, on the other hand, was one that included a provision to the effect that if an extraditee was being sought for the equivalent of a schedule 6 offence, the magistrate had to satisfy themselves “that exceptional circumstances exist which in the interests of justice permit his or her release” before granting bail – as is the case when an accused person charged this type of offence here in South Africa applies for bail.
The Constitutional Court, however, rejected this proposal.
“By their nature, extradition proceedings are unique. They are neither criminal nor civil proceedings,” Dambuza wrote.
“While extradition ultimately concerns criminal matters, the extraditee is not an accused person within the South African criminal justice system. Because of the peculiar nature of extradition proceedings, a court must caution itself against mechanical importation of domestic criminal processes”.
She added, however, that “the caution exercised against incorporating the exceptional circumstances test is not, by any means, a bar to the legislature to incorporating such test should it determine it appropriate to do so.”
The State was also ordered to pay the costs of the case.