The history, basis and current status of the right or duty to extradite in public international and South African law

Abstract

As the only internationally sanctioned means by which a fugitive offender may be returned from one state to another, extradition as public international law process has received surprisingly little attention in South African legal literature. The major trends in European extradition law are identified and a parallel is drawn with South African extradition from 1652 to the present. Extradition has a dual basis : treaty and non-treaty. Traditionally South Africa preferred treaty-based extradition, but with the adoption of the Extradition Act in 1962 this base was broadened. In a detailed analysis of section 3(2) of the Act it is shown that extradition is here in fact an act of comity. This has not always been recognised by the authorities who have confused section 3(2) comity with reciprocity. This may be ascribed to a basic misunderstanding of a reciprocal undertaking to extradite as an informally concluded treaty commitment. Most of South Africa's extradition treaties are inherited. State succession to bilateral treaties resulting from annexation and cession, devolution agreements, and dismemberment or secession is consequently traced through the various "successions in fact" occurring within South Africa from 1652-1961. Particularly within the South African courts, a misconception of the role of consent in succession has led to considerable confusion. An alternative approach to the succession process which emphasises the role of consent and gives due credit to succession as a separate international law phenomenon is proposed. Namibian succession to extradition treaties is addressed briefly. The termination of extradition treaties is examined and an assessment is made of the individual treaties appearing on the South African Treaty List culminating in a re-evaluation of states to which South Africa owes a duty to extradite and from which it may demand extradition as of right.