By Sikhosonke Mayekiso

To appreciate the Constitutional Court’s reasoning in Schultz v National Director of Public Prosecutions ZACC 39 and Cholota v National Director of Public Prosecutions ZACC 5, consider their core facts. In Schultz, the applicant faced extradition to the United States for serious fraud charges, but the request originated from the National Prosecuting Authority (NPA) rather than the National Executive, breaching section 10 of the Extradition Act 67 of 1962. Similarly, in Cholota, the applicant contested extradition to Zimbabwe on corruption allegations, again citing an irregular NPA-initiated request that bypassed executive authority under the same statutory framework. My concern cuts to the core of these judgments: if the extradition request was unlawful as made by the NPA rather than the relevant Minister, why did the Court not simply decline jurisdiction and allow the matter to fall away?

The decision to uphold jurisdiction despite the irregularity appears, on its face, to be a concession that procedure might be bent when the stakes are high. It raises a legitimate question: at what point does the pursuit of accountability for serious crime begin to erode the very principles the Constitution is meant to protect? The court’s answer in this regard appears to be rooted in a deliberate, fact-specific balancing exercise rather than a blanket preference for outcomes over rules. It reaffirmed the longstanding principle from S v Ebrahim (1991), where it was stated that an unlawful extradition does not automatically deprive a South African court of jurisdiction. The test is narrower and more exacting, in that jurisdiction is lost only if continuing with the trial would “bring the administration of justice into disrepute.” This requires courts to probe into the nature of the conduct by ascertaining whether the irregularity was so fundamental, so tainted by bad faith, abuse of power, or violation of the accused’s dignity that the entire process becomes morally indefensible?

In Cholota’s case, the court found no such disrepute. The NPA had acted bona fide, relying on a long-standing (though mistaken) practice that predated the SCA’s clarification in Schultz. There was no evidence of deliberate overreach, no suggestion that the request had violated US sovereignty or international comity, and no indication that Cholota’s constitutional rights (to liberty, fair trial, or protection from arbitrary detention) had been substantively impaired in a way that could not be remedied. The irregularity was admittedly serious as it breached the separation of powers; however, it was procedural rather than substantive. To decline jurisdiction on that basis alone, the Court reasoned, would impose a disproportionate cost which would allow a serious corruption case to collapse on a technical ground that did not affect the fairness of the ultimate trial.

This is not indifference to procedure. The judgment explicitly condemns the NPA’s overreach and insists that future extradition requests must be authourised by the the Minister of Justice. The domestic preparatory work may remain with the NPA, but the formal international transmission. That delineation is a direct consequence of the case and will govern all outgoing extraditions going forward. Prosecutors who ignore it risk rendering future extraditions vulnerable to the same challenge, potentially with different outcomes if bad faith or prejudice is shown.

So what does this mean practically moving forward?

1. This introduces a layer of political and diplomatic accountability that was previously absent. Ministers will have to consider not only the strength of the case but also foreign-relations implications, human-rights concerns, and the risk of diplomatic fallout. In politically sensitive cases (corruption involving high-profile figures, for instance), this could lead to more cautious or even delayed requests.
2. Defendants cannot expect automatic release simply because the request came from the wrong organ of state. Courts will look at context: was the error honest? Did it prejudice the accused in a material way? Was there abuse? In most cases where the NPA acted in good faith under the pre-Schultz understanding, jurisdiction is likely to be upheld. But the threshold for “disrepute” remains open. Egregious misconduct, deliberate circumvention of the relevant Ministry with authority, or evidence of rights violations could still tip the balance.
3. Your question of “at what cost?” points to the nub of the dilemma. The Court chose to prioritise the public interest in prosecuting serious crime over a rigid application of the unlawful-rendition rule. Critics (including some constitutional scholars) argue this risks weakening the separation of powers: if procedural breaches carry no real sanction in high-profile cases, what deters future overreach? The counter-argument, which the judgment embraces, is that the greater danger lies in letting technicalities shield the guilty while the rule of law is ostensibly upheld. A justice system that routinely releases accused persons because of bureaucratic missteps especially when those missteps caused no real injustice could itself undermine public confidence.

The judgment is not a blank cheque for procedural laxity. It is a calibrated response that polices the boundaries of power scrupulously, but does not permit mistakes to become escape routes. Whether that calibration holds in future cases will depend on how courts apply the “disrepute” test when the facts are less benign, when there is evidence of deliberate bypassing, political interference, or actual prejudice to the accused.

To me, both matters, interestingly reveal a mature constitutional jurisprudence that refuses to treat the rule of law as a suicide pact. It demands fidelity to separation of powers while refusing to let form triumph over substance when no real harm has been done. One can only candidly hope that courts will continue to distinguish between good-faith error and abuse.

Disclaimer: This post reflects my personal views only (and not that of my employer) and is not to be construed as legal advice. Consult a qualified professional for your specific legal and related queries.