CPR3701 Criminal Procedure ASSIGNMENT 1 FEEDBACK 2022. Question 1
(a) A Magistrate Court has Jurisdiction, the Magistrate Court may
make an extradition order directly, provided that all requirements
have been met, this is only to an African State. When a foreign
country is involved the findings...
(a) A Magistrate Court has Jurisdiction, the Magistrate Court may
make an extradition order directly, provided that all requirements
have been met, this is only to an African State. When a foreign
country is involved the findings of the Magistrate will first be
referred to the Minister of Justice for his decision.1
(b) In terms of extradition agreements certain corresponding
principles is considered:
i. With regards to serious crimes or double criminality,
extradition will be granted, and the crimes committed must
be punishable in terms of the law on both sides.
ii. A person will not be extradited if it is one of a political
nature.
iii. The person is only tried to the crime that person is
extradited for, except if the state who extradited him
consents to the new charge.
iv. Extradition will be refused in terms of the death penalty, in
the case of S v Makwanyane 1995 (3) SA 391 (CC) the
court held “that the death penalty constitutes inhuman and
degrading treatment, and that it cannot stand constitutional
muster.”2 If one state enforces the death penalty and the
other state does not, the extradition will not be granted.
v. Extradition agreements usually contains a ne bis idem rule
(meaning "not twice in the same [thing]", is a legal doctrine
to the effect that no legal action can be instituted twice for
the same cause of action) which corresponds with pleas of
autrefois acquit (meaning a plea by a person indicted for a
crime for which he or she had previously been tried and
acquitted) and autrefois convict (meaning is a plea made
by a defendant in a case when s/he is indicted for a crime
or misdemeanour. By this plea, a defendant can claim that
s/he was charged of the same crime under substantially
same facts).
(c) In Criminal Procedure handbook it was held by JJ Joubert that “In
terms of International law principles, every government of a state
has authority of everything that’s happening within their borders,
and therefore has the right to try crimes which was committed
1
Joubert JJ (ed) Criminal Procedure Handbook 12th edition (2016) Juta Cape Town
2
S v Makwanyane 1995 (3) SA 391 (CC)
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