4 days ago
High Court rules against NPA's extradition request for Richard Payne
Some of the accused in the matter. From left: Obakeng Stephen Mookeletsi, Sybil Ngcobo, Valdis Ntsieni Ramaano, Brian Hlongwa, and Reatile Kingdom Lolwane.
Image: Baldwin Ndaba / Independent Newspapers
The National Prosecuting Authority's (NPA's) bid to extradite fugitive businessman Richard Payne from the UK to face charges in the R1.2 billion graft case involving former Gauteng Health MEC Brian Hlongwa has hit a brick wall.
Suspended director of public prosecutions, Gauteng local division Andrew Chauke, submitted an extradition request to the UK government in September 2022 to get Payne to return to South Africa to face 258 counts of contravention of the Prevention of Organised Crime Act, racketeering, fraud, corruption and money laundering in the long-running R1.2bn irregular tender case between 2006 and 2010.
Payne is wanted in the country in relation to the matter involving one of his companies, 3P Consulting, and various others, including Ukwakha Design, Midnight Masquerade Properties 72, and Golden Pond Trading 363.
His other co-accused, besides Hlongwa, who also served as ANC chief whip in the Gauteng provincial legislature, are former Gauteng Health Department employees, directors of companies, and their business partners – Obakeng Stephen Mookeletsi, Sybil Nomhle Ngcobo, Valdis Ntsieni Ramaano, Abul Kalam Mohammed Mahmudur Rahman, and Reatile Kingdom Lolwane, according to the NPA.
In a judgment handed down on August 2, Gauteng High Court, Pretoria, Acting Judge Lindsey Kilmartin reviewed and set aside Chauke's extradition request dated September 26, 2022, to the UK government. Acting Judge Kilmartin declared the extradition request inconsistent with the Constitution and invalid.
She also declared that Chauke and National Director of Public Prosecutions Shamila Batohi have no authority to submit an extradition request on behalf of South Africa to the UK.
According to Acting Judge Kilmartin, the Supreme Court of Appeal (SCA) in May last year ruled that only the Minister of Justice in his/her capacity as a member of the national executive of South Africa has the power to make an extradition request.
The SCA decision was made in South African citizen Johnathan Richard Schultz's attempt to thwart the NPA's extradition request to face charges of theft and sale of unwrought precious metals dating back to 2019.
In the Schultz matter, the NPA filed its application for leave to appeal at the Constitutional Court three-and-a-half months late, and Acting Judge Kilmartin stated that this means the SCA judgment stands and is the law which must be applied.
Additionally, the SCA found that international law makes it clear that the executive arm of the government is empowered to engage with foreign states in the international law community and the Minister of Justice is the functionary who signs extradition treaties on behalf of South Africa and s/he is the functionary responsible for performing all acts necessary to give effect to the treaty.
The NPA was unsuccessful in its application to stay Payne's review application pending the outcome of its Schultz application for leave to appeal at the apex court.
'This is not a case where duplication of judicial resources is taking place and the stay requested by the NPA respondents (Chauke and Batohi) cannot be granted merely on the basis that the Constitutional Court 'may yet establish a new test or understanding of the relevant facts and law'," the acting judge stated.
In April, the UK's King's Bench Division allowed Payne's appeal of an earlier March 2024 order sending his case to the Secretary of State for the Home Department, who made an extradition order in May last year, and found that the extradition proceedings against him were an abuse of process but there was no basis to show that the government of South Africa, as prosecutor, had manipulated the court process.
Prosecutors accuse the group of committing a range of irregularities, including awarding of tenders, irregular payments, and fraudulent financial mismanagement, with 3P Consulting and its associated companies securing lucrative state contracts by exploiting personal relationships and illegal dealings within the department.
Earlier this year, the NPA said the accused allegedly facilitated corruption through inflated contracts, unauthorised payments, and diversion of funds intended for public services.
The alleged offences led to the department misusing its budget, with over R347 million in irregular payments, which include false claims for project management services and extra charges that were not part of the contracts.
