South Africa

The case concerned requests by the United States for the extradition of several Nigerian nationals residing in South Africa, accused of participating in an international cybercrime enterprise involving wire fraud, aggravated identity theft and money laundering. The central issue was how the principle of double criminality should be applied under the USA–South Africa Extradition Treaty and the South African Extradition Act 67 of 1962. The High Court held that double criminality may be implemented either by reference to the conduct of the requested person or by reference to the offences for which extradition is sought, and that the applicable approach must be determined by interpreting the relevant extradition legislation and treaty. Interpreting the USA–South Africa treaty in light of international and comparative law, as well as South Africa’s extradition treaty practice between 2001 and 2021, the Court held that the treaty adopts a conduct-based approach. Accordingly, the correct question is whether the totality of the acts and omissions alleged by the requesting State would constitute an offence in the requested State if committed there, not whether the offences have the same name or substantially identical constituent elements. Applying that test, the Court found that the alleged conduct — including identity misuse, false online personas, fraudulent inducement of victims and laundering of proceeds — would constitute offences under South African law, including fraud, cyber fraud, cyber forgery and uttering, and money laundering. The Court also set out the method to be followed by magistrates in extradition enquiries under section 10 of the Extradition Act where the applicable treaty adopts a conduct-based approach. The appeal was dismissed and the appellants remained liable to be extradited, pending the Minister’s final surrender decision.

The notion that the detention in custody of the requested person constitutes an indispensable element of extradition proceedings has been abandoned; at the same time, however, where extradition is granted, the surrender of the requested person must still be ensured. Where the requesting State has not submitted any request for provisional arrest, nor indicated any concrete situation of urgency connected with an imminent risk of flight, the Court of Appeal cannot merely assert, in an apodictic manner, the existence of a risk of flight without providing any reasoning as to the circumstances allegedly justifying such risk.