Justice Minister Mmamoloko Kubayi clarifies extradition powers amid legal confusion

Justice and Constitutional Development Minister Mmamoloko Kubayi has clarified that only the minister, not the National Prosecuting Authority (NPA), has the legal authority to request extraditions of wanted fugitives back to South Africa.

Kubayi explained that, while the NPA investigates and prepares cases, the final request to a foreign government must come from the Justice Minister.

"The authority lies in terms of law with the minister, but the NPA is involved in the process because the minister does not get to have a case and is not a person who deals with prosecution. So, what happens is that NPA would go into an investigation with the police and everybody else.

"The NPA, through the NDPP (National Director of Public Prosecutions), writes to the minister to request that the person must be extradited, and then the minister writes to the counterpart to say we are requesting this person to be extradited to South Africa and communicates a letter from the NPA so that it can be sent to the prosecutor in that particular country.

That process allows for the NPA inthe country and prosecutors in the country that we are trying to expedite persons [from] to interact and be able to do the operational work to bring that person back. So, they would have that prosecution in that country, going to court with the documents supported by the NPA to bring that person back."

The confusion follows the so-called Schultz judgment, which found that some extradition requests were signed by delegated officials rather than the minister, a practice the courts ruled unlawful.

Kubayi says the Department is now reviewing and rectifying affected cases, including several high-profile ones.

She acknowledges that inconsistent application of the Extradition Act could harm South Africa’s credibility abroad, but she insists that measures are being implemented to prevent future administrative errors.

To listen to Kubayi in conversation with 702's Bongani Bingwa, click below: