The National Prosecuting Authority (NPA) has filed an application asking for the Supreme Court of Appeal (SCA) to resolve key legal questions following a ruling that declared the extradition of Moroadi Cholota from the US to South Africa unlawful.
The application, due to be heard on Friday, follows hot on the heels of a dramatic ruling that declared Cholota’s extradition from the US unlawful, and the state is now pulling every constitutional and procedural fulcrum to challenge the decision.
Court misapplied another landmark case
The application by state prosecutor Advocate Johan de Nysschen, filed under Section 319 of the Criminal Procedure Act, signals a shift from mere damage control to an aggressive push for legal clarity. Central to its strategy is the argument that the trial court misapplied the landmark Schultz v Minister of Justice and Correctional Services decision.
Unlike a typical application for leave to appeal, which generally asks a higher court to reconsider the facts or overall justice of a case, this application specifically asks the court to “reserve” questions of law for determination by the SCA.
Section 319 of the CPA is designed for cases where the parties believe the trial court has made an error in interpreting or applying the law, rather than in assessing the evidence or facts.
De Nysschen points out that “when Schultz pursued his application… he was still located in the US, and no extradition process against him had even commenced.” He maintains that Cholota’s circumstances are fundamentally different, as her extradition process was already underway when Schultz was decided.
State is optimistic
The state isn’t stopping there — it’s also betting on a pending Constitutional Court challenge that could tilt the playing field.
“The Director of Public Prosecutions… has pursued an application for leave to appeal… to the Constitutional Court… Limited to the remedy, being the retrospective effect of the SCA’s order… The matter remains live as it has not been dismissed.”
De Nysschen remains optimistic: “There are… prospects of success of the Constitutional Court overturning the order… in relation to it not having tempered its order in relation to retrospectivity.”
With its eyes on precedent, he draws a sharp distinction between Cholota’s case and the earlier Spagni matter. He points out that the SCA held that it was not open to Spagni to challenge the validity of the extradition request when he was already deported to South Africa.
“He could have challenged its validity during the enquiry… but made a conscious decision not to do so.”
Technical defence time frame
The prosecution argues that Cholota only raised her technical defence after she had returned to South Africa. This despite having been in a position to have raised such defence before the courts in the US.
De Nysschen is also taking a swing at what he says was procedural unfairness in the way the trial court handled the matter. By allowing counsel for Cholota to only raise the authority of Schultz for the first time in closing arguments after the state had closed its case, the court deprived the state a right of reply.
The state insists that the validity of the request was only raised by counsel for Cholota, Advocate Loyiso Makapela, during closing argument. “Thereby denying the state the opportunity to present counterarguments.”
Another key prong in the NPA’s approach is the court’s finding on the burden of proof.
Was request lawful and valid?
De Nysschen questions whether the courts finding that the prosecution had not proved beyond reasonable doubt, or at all, that there was a valid and lawful request which was correct in law.
He adds that the finding was unwarranted, given that the challenge was only raised during closing argument.
Further, the state contends that the trial judge overlooked crucial constitutional considerations.
It argued: “Whether the learnt judge erred in overlooking and failing to consider the provisions of Section 172 of the Constitution.”
Retrospective effect
Citing the Constitution, the state reminds the court that Section 172 of the Constitution provides that a court may make any order that is just and equitable, including limiting the retrospective effect. The court should have considered whether just and equitable relief was required, he added.
Regarding the timeline, De Nysschen stated that the extradition application for Cholota began in January 2022.
A US court found her extraditable in June 2024, with her actual extradition taking place in August.
The Schultz judgment, which has become the legal linchpin in this saga, was handed down just before the US court’s ruling. But the state insists it should not be wielded retroactively.
