22 June 2022 10:00 by Merilyn Kader
In Forum de Monitoria do Orçamento v Chang  2 All SA 157 (GJ), competing extradition requests, review of Minister’s decision, whether rational based on the relevant facts, and in conformity with the doctrine of legality.
By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.
Criminal law and procedure - Competing requests for extradition: In Forum de Monitoria do Orçamento v Chang  2 All SA 157 (GJ). The first respondent, Mr Chang, was a public official of Mozambique who had occupied the position of Minister of Finance for ten years. He was implicated in the ‘Mozambican secret debt scandal’ and was accused of grand corruption involving plundering public resources. After being charged in both the United States (US) and Mozambique for corruption and fraud, he was arrested in South Africa at the request of American authorities. The Minister of Justice then received competing requests by both Mozambique and the US to extradite Mr Chang to their respective countries.
The applicant, Forum de Monitoria do Orçamento (FMO), being committed to fighting corruption, sought review of the Minister’s decision to extradite Mr Chang to Mozambique, after having first decided to extradite him to the US.
Victor J held that:
- The first issue for determination was whether the Minister’s decision was rational and in conformity with the doctrine of legality when he changed his mind from extraditing Mr Chang to the US, to Mozambique.
- The second was whether the Minister ignored relevant facts, thus resulting in the decision and the procedure adopted in arriving at the decision, being marred by irrationality.
The Minister’s decision must be rationally related to the purpose for which the power was conferred. If it is not, then the exercise of the power would be arbitrary and at odds with the Constitution. Thus, in exercising his power, the Minister must take into consideration all the relevant facts when weighing up a matter pertaining to extradition. The process in leading up to that decision must also be rational.
When a court is faced with an executive decision where certain factors were ignored, it must consider –
- whether the factors ignored were relevant;
- whether the failure to consider the material concerned (the means) is rationally related to the purpose for which the power was conferred; and
- if the answer to the second stage of the enquiry is negative, whether the ignoring of relevant facts tainted the entire process with irrationality, rendering the final decision irrational.
One of the primary considerations, which illustrated that the Minister’s decision, was not rationally related to the purpose was that of immunity. Extradition to a state where the person enjoys immunity from prosecution is contraindicated. The question of Mr Chang’s immunity from prosecution was uncertain, and the Minister’s ignoring that aspect rendered his decision irrational. Further relevant concerns which the Minister did not consider or failed to give sufficient weight to were highlighted by the court.
Post hoc reasons for the Minister’s decision did not have sufficient probative value to justify a rational decision.
The extradition decision was reviewed and set aside, and the court ordered Mr Chang to be extradited to the US.
Merilyn Rowena Kader
Legal Editor at LexisNexis