What were the South African authorities thinking? They went to a great deal of trouble to locate suspects wanted for a brutal murder in the province of Limpopo. Once they found the two men hiding out in Zimbabwe, they brought a successful extradition application.
Legal Brief
On June 6, 2017, the courts issued an order for the two men to be detained in a Chiredzi jail pending arrangements for them to be handed over. And then nothing happened. Normally, once a court issues an extradition order, authorities in the country where suspects are being held, Zimbabwe in this case, would promptly notify the country seeking extradition of the hand-over arrangements.
And the country seeking extradition — SA in this case — would eagerly follow up, urging that these arrangements be made swiftly so that the suspects could be returned as a matter of urgency.
But in this case, neither country did anything, with unfortunate but inevitable legal consequences: the two men have now been released from prison and are again at large. Under Zimbabwe’s extradition law, if someone is still in custody two months after an extradition order is issued, they may apply for release.
In considering such an application, the court must ensure that the minister was given “reasonable notice” of the release application, after which the court “shall” order the applicant released “forthwith”, unless “good cause” was shown not to do so.
In this case, Zimbabwe High court judge, Justice Joseph Martin Mafusire was not persuaded, the men should stay in jail and he ordered their release immediately after the matter was argued, with reasons to follow.
As far as SA is concerned, the inaction seems inexplicable.
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The extradition application was brought on the grounds that in June 2016 the two men, employed as security guards in Limpopo province, brutally assaulted and killed their employer, stealing cash and cellphones.
The application further said part of the evidence against them had been captured on CCTV cameras.
The two suspects, Simbarashe Charuma and Prince Chindawande, brought the application for their release against “the Republic of South Africa” and Zimbabwe’s Home Affairs Ministry.
By that stage, lawyers for the two men had already given many months’ notice to the minister, pointing out that they would apply for release as “no efforts have been made by the SA government or by the (Zimbabwe) state” to arrange the extradition.
When the case was finally heard, there had still been no word from SA.
However, the Zimbabwe authorities conceded that the minister had been given notice of the application, as required. To explain the inaction of the detaining authorities, the Zimbabwe legal team put up an extraordinary argument by way of a background explanation described by the judge as “quite colourful”.
That was something of an understatement. The argument justifying the Zimbabwean authorities’ inaction amounted to an unprecedented indictment of that country’s police and other law enforcement bodies, with rarely-heard admissions that they were “captured” and “corrupt”, and that the country had for a time functioned without a government.
The minister’s legal team began with a re-run of political events in Zimbabwe before and after the extradition order that led to the men’s detention.
Summarising their argument, the judge said it dealt with events that led to the November 2017 change in government.
For much of the 37 years that former President Robert Mugabe had been in office “the economy was in a tailspin (and) everything else was in free fall.
Among other things, democracy and good governance disappeared. Corruption became endemic. Law and order was scarce. Rule by law replaced the rule of law”.
The State further argued the upheaval of the climax period “rendered the government dysfunctional for the period the army was in control”.
“Before the military operation, the Zimbabwe Republic Police had become so corrupt that it had practically abdicated its constitutional mandate.
The police were said to have been only concentrating on chasing after members of the public, particularly motorists at road blocks and other check points, to extort money from them…
“In recent days, our local newspapers carried a headline wherein the minister of Home Affairs apologised that the police force had been captured to look for money from the public rather than concentrate on their duties. Consequently, some of the important duties of the force were neglected.
This is evident from the delay that was occasions in the extradition of the applicants.
“At the time the applicants filed their notice of intention to make this application, the court can take judicial notice of the fact that the country was undergoing Operation Restore Legacy.
There was no Cabinet and no minister was responsible for running the country. The ministers were only appointed sometime in December 2017.
This has had adverse effects on the operations of the police and contributing to further delays in the accused persons’ extradition.”
The the judge said in extradition matters “it takes two to tango”.
“Both the requesting country and the host nation have to play ball if extradition is to succeed.”
Neither Zimbabwe nor SA had done anything towards implementing the order. Nothing factual was placed before the court to explain the delay. Instead, the court was “being urged to take judicial notice of some internal factional turmoil” within the ruling party, and he disagreed with the state about the extent to which there had been “turmoil” during the change in government.
Justice Mafusire said he did not regard “the alleged endemic corruption” within the police and the military action as sufficient to justify the lack of action on the extradition.
Since the liberty of two men was involved, he had to consider that they were not facing any criminal charges locally and that the SA authorities had “remained mum” ever since the extradition order had been granted.
“More than seven months later, the requesting country had made no follow-up.
It is because of such lackadaisical, easy-going, indifferent and laid back approach to government business” that the extradition laws provided for the release of detainees in cases where the states involved did not finalise the requested extradition.
The judge was clearly acting in accordance with the law when he released the two suspects.
But while the authorities in Zimbabwe offered extraordinary, bizarre excuses for their lack of action, their SA counterparts gave no explanation at all, however, feeble.
For the crime-plagued people of both countries, this was way more than a gross failure to tango: will anyone be called to account?
