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REPUBLIC OF NAMIBIA

REPORTABLE

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT
Case no: CA 104/2014

In the matter between:

MATHIEU NICOLAS FURIC APPELLANT

and

THE STATE RESPONDENT

Neutral citation: Furic v The State (CA 104/2014) [2014] NAHCMD 370 (27
November 2014)

Coram: LIEBENBERG J and SHIVUTE J


Heard: 18 November 2014
Delivered: 27 November 2014

Flynote: Extradition – Request for extradition by India – Extradition


founded on documents furnished by the State – Translation of witness
statements not by sworn translator – Unsworn statements not to be relied
upon – Documents also not properly authenticated or certified as provided for
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in Act – Documents being foreign documents accordingly inadmissible as


evidence.
Extradition – Evidence – Act requires magistrate be satisfied that prima facie
case proved against the person to be extradited – Rules of the High Court to
be applied – Documents relied upon at enquiry not satisfying requirements for
admissibility of foreign documents – Statements on which extradition request
is founded are inadmissible as evidence – In present appeal court not
satisfied of prima facie case – Appeal accordingly dismissed.

Summary: The appellant, a French national, had been committed for


purposes of extradition, the requesting country being India. It had been
alleged that he had committed several offences under the Indian Penal Code
and the Protection of Children from Sexual Offences Act, 2012. The appeal
lies against the order of committal. The State at the enquiry adduced no oral
evidence and relied on the documents prepared in, and forwarded by, India,
the requesting country for extradition of the appellant. The magistrate at the
enquiry was satisfied that the requirements for extradition as set out in section
12 (5) of the Extradition Act, Act 11 of 1996 were met and issued an order
committing him to prison pending the Minister’s decision. The appeal was
based mainly on two issues, namely, (a) the offences for which extradition is
sought and the identity of the person before the court not duly established,
and (b) the admissibility of witness statements and other documents relied
upon and the lack of authenticity thereof. The court, after considering the
provisions of the Act, read with the Rules of the High Court, concluded that
unsworn statements, statements not translated by a sworn translator and
documents not authenticated are inadmissible as evidence. Witness
statements found to be inadmissible were the basis of the extradition request,
without which there can be no prima facie case. The appeal accordingly
succeeds.

______________________________________________________________
ORDER

The appeal is upheld and the appellant to be discharged forthwith.


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JUDGMENT

LIEBENBERG J (SHIVUTE J concurring):

[1] Appellant is a French national who was arrested upon his entry into
Namibia at Walvis Bay on 20 June 2014 on suspicion of having committed
offences outside the borders of Namibia, similar to offences punishable within
Namibia and for which he could be extradited (section 40 (i)(k) of the Criminal
Procedure Act, 51 of 1977). The appellant, at the end of an enquiry conducted
by a magistrate in terms of the Extradition Act, 11 of 1996 (hereinafter ‘the
Act’), was committed to prison pending the Minister of Justice’s decision in
terms of the Act.

[2] A formal request by way of an affidavit, deposed to by Superintendent


Anup Kumar Sahoo and dated 26 June 2014, was received from the Office of
the Superintendent of Police, Puri, Odisha, India, in which the extradition of
the appellant from Namibia to India for trial in a competent court of law, is
requested.

[3] In his statement Superintendent Sahoo states that a criminal case has
been registered at Sea Beach Police Station, Puri, Odisha, against Mr.
Mathieu Nicolas Furic, involving three charges under the Indian Penal Code,
and a further two charges under the Protection of Children from Sexual
Offences Act, 2012. In a summary of facts it is alleged that a Mr. James
Frederick Gorman, a USA national, reported an incident in which appellant
was seen committing sexual acts with four minor children. When the
complainant approached with the intention of photographing the appellant, he
was attacked and during an ensuing tussle between them, appellant managed
to flee the scene with a bag the appellant had with him and from which Mr.
Gorman obtained a boarding pass of an airline, found among other items in
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the bag he had snatched from the appellant. The statement further reads that
by means of the boarding pass the complainant managed to trace the hotel
where the appellant had been staying. A photograph on the passport of the
appellant was also obtained from the hotel. Further information obtained
during the investigation revealed that the appellant checked out the same day
and left the country two days later.

[4] Documents relied upon in support of the charges preferred against the
appellant accompanied the statement, to wit: (i) First Information Report; (ii)
Charge Sheet; (iii) Statements of four child witnesses; (iv) Documents of the
hotel; (v) the Enquiry Report of District Child Protection Officer; (vi)
Photograph of the accused (appellant) available in the passport and a recent
photograph by the NCB – Paris; (vii) Deposition of the complainant in the
Judicial Court; and (viii) Photocopy of travel document i.e. boarding pass.

[5] The Minister of Justice in Namibia subsequent to the request received


from the Office of the Superintendent of Police, Puri Odisha, India, by letter
dated 30 June 2014, granted ‘authority to proceed in accordance with section
11 (4) and (5) of the Act and forwarded the application to a magistrate. I
pause here to observe that the sections referred to in the Minister’s letter
provides for the issuing of a warrant of arrest for the wanted person (s 11 (4),
and the magistrate, in return, having to inform the Minister of the warrant
issued or otherwise, of his or her decision not to issue such warrant (s 11 (5)).
Authorization by the Minister to a magistrate to proceed with an enquiry in
accordance with section 12 is to be found in section 10 (1), not section 11 of
the Act, as cited in the Minister’s letter.

[6] Magistrate Endjala endorsed the external warrant of arrest on 30 June


2014 and on 04 September 2014 the extradition enquiry commenced before
him. During these proceedings the State was represented by Mr Nduna while
Mr Elago appeared for the appellant.

[7] At the outset the State intimated to the court that no viva voce evidence
would be tendered and thereafter handed in the documentary evidence relied
5

upon for purposes of the extradition request. The defence equally did not lead
any evidence and neither did it produce any documentary evidence in its
opposition of the application. During oral submissions State counsel pointed
out that the requesting country, in this instance, India, is a country
contemplated in section 4 of the Act, being a country which has entered into
an extradition agreement with Namibia (Proclamation No. 5 of 1997). It was
also submitted that the identity of the person, the subject of the request, was
not in doubt. Counsel further pointed out that the offences preferred against
the appellant in India satisfy the requirement of being ‘extraditable offences’ in
that they are punishable with imprisonment for a period of 12 months or more
and which, had it been committed in Namibia, would have attracted the same
punishment (section 3).

[8] Counsel however conceded that as far as it concerns the offence


described as ‘Punishment for wrongful restrain’ in contravention of section
341 of the Indian Penal Code, the offence does not satisfy the requisite
punishment of 12 months’ imprisonment in that it only provides for one month
imprisonment or a fine of Rs.500 (Rupees). As for the rest of the offences
charged, counsel submitted, these are of more serious nature and are
extraditable offences.

[9] State counsel thereafter summarised and made submissions in respect of


the evidence presented to court for consideration. It was submitted that
sufficient evidence had been adduced which would entitle the court to issue
an order committing the appellant to prison pending the Minister’s decision.
Counsel found support for his contention in the statements of Mr Gorman, the
complainant, as well as the statements of four minor children alleged to have
been victims of sexual acts committed with them by the appellant.

[10] Mr Elago during his submissions took issue with the production of
documents contained in the extradition request in that it does not satisfy the
requirements set out in section 8 (3), read together with section 18 of the Act.
Counsel pointed out that, statements obtained from the child witnesses were
recorded in a language other than the English language and that the
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accompanying documents are not sworn translations, but nothing more than
translations of their statements. Furthermore, the stamps or seals affixed to
some of the statements are illegible, making it impossible to determine the
capacity of the person who affixed these stamps on the documents. In view of
the foregoing, counsel argued, these documents were not properly before the
court and fall to be rejected as inadmissible evidence.

[11] Counsel for the State on the contrary argued, albeit half-heartedly, that
the translated versions of the child witnesses’ statements were indeed sworn
statements made to the Superintendent of Police of Puri. He further argued
that, if these statements do not pass muster then reliance may still be placed
on the complainant’s statement which was done in the English language.
Regarding the authentication of these documents, the State, argued that both
Namibia and India are signatory countries to The Hague Convention
Abolishing the Requirement for Legalisation for Foreign Public Documents, by
which member countries are exempted from strict adherence to the
requirement of authentication.

[12] The learned magistrate reserved judgment and delivered same on 04


September 2014 whereby the court found the extradition documents in order
and committed the appellant to prison awaiting the Minister’s decision in terms
of section 16 of the Act.

[13] Notice of Appeal in terms of section 14 of the Act was filed on 10


September 2014 in which several grounds of appeal are articulated. These
can be divided in mainly two groups, namely, (a) grounds which relate to the
offences on which extradition is sought, and the identity of the person sought
to be extradited; and (b) the admissibility of evidentiary material relied upon in
the enquiry, not satisfying the requisites provided for in the Act.

[14] In respect of the identity of the person brought before the court a quo for
extradition, it was submitted that on the evidence presented, the court could
not have been satisfied that the appellant is indeed the person in the
extradition request.
7

[15] Section 8 provides for the particulars and documents in support of the
request for return of the person and in respect of the identity of such person,
subsection (1)(a) provides:

‘(1) Notwithstanding the terms of any extradition agreement which may be


applicable, a request made under section 7 shall be accompanied-
(a) by the full particulars of the person whose return is requested and
information, if any, to establish that person's location and identity;
…’

[16] The magistrate at the end of the enquiry must be satisfied that the
person brought before him or her is indeed the person sought in the
extradition request and section 12 (5)(c) provides as follows:

‘(5) If at any enquiry the magistrate concerned is satisfied, after hearing the
evidence tendered at such enquiry, that-
….
(c) the person brought before him or her at the enquiry is the person who
is alleged to have committed such extraditable offence in such country or to be
unlawfully at large after conviction for an extraditable offence in such country;
the magistrate shall issue an order ….’

[17] The gravamen of the appellant’s complaint is that the identity of the
person brought before the court for purposes of the enquiry had not been
properly established. Also, that the State did not lead any evidence
specifically on the identity of the person before the court that could show that
it is the same person sought in India; or the same person depicted in the
photograph of the passport on which he travelled to Namibia. It was submitted
that most importantly there was no evidence made on oath about the identity
of the person and reliance was placed by the requesting country on
uncertified documents purportedly obtained from a hotel in Puri i.e. copies of
the Guest Registration Card and passport bearing the names Furic (Nicolas)
Mathieu.
8

[18] With regard to the identity of the person before court, it was submitted
on the appellant’s behalf that the magistrate, on the documentary evidence
submitted – provided same satisfies the requisites set out in the Act – could
not have been satisfied that the requirements of section 12 (5) of the Act have
been met.

[19] The identity of the person that was before the court a quo at the enquiry
is reflected as that of Mathieu Nicolas Furic, Male, 46 years of age and of
French Nationality. No evidence otherwise pertaining to the identity of the
person was led, the reason therefor seemingly being that the identification of
the person was not challenged or placed in dispute. It is common ground that
the appellant was arrested upon entry into Namibia and detained. This came
about when the appellant was ‘red flagged’ through Interpol when his passport
was scanned at Walvis Bay upon his entry into Namibia. He was immediately
arrested without a warrant of arrest as provided for in terms of s 40 (1)(k) of
the Criminal Procedure Act, 51 of 1977 and, subsequently thereto, detained
by order of court.

[20] Counsel for the respondent submitted that besides the statements in
support of the request received, the magistrate was also entitled to have
regard to the Arrival Form which the appellant was required to complete upon
his entry into Namibia. I am in agreement with counsel’s contention. The form
bears the name Mathieu Furic, a French National travelling on passport no.
12CZ24660 and is stamped by an immigration official at Walvis Bay, being the
port of entry. The production of this document into evidence, in my view,
constitutes sufficient proof of the identity of the person who filled out the form
reflecting the passport bearer’s identity and other particulars relevant thereto.
Appellant has not disputed having filled out the said form or that the
particulars contained therein were incorrectly stated. There was thus no
reason to doubt the identity of the person in court to be Mathieu Furic, the
appellant.

[21] Although there is merit in counsel’s contention that the magistrate ought
to have verified the identity of the person brought before the court to be the
9

person alleged to have committed the extraditable offences in question, either


by obtaining such information from the appellant directly, or cause the State to
lead evidence to that effect, it is my considered opinion that the identity of the
person brought before the court was duly established from information
obtained from a passport issued to one Mathieu Furic. Furthermore, in the
absence of any evidence showing otherwise, these particulars could be relied
upon by the magistrate, bringing ease to mind that appellant is the person
whose extradition was sought by India. To this end the magistrate cannot be
faulted on the conclusion he had reached.

[22] With regard to the endorsement of an external warrant of arrest by the


designated magistrate, section 10 provides for the authorization given to the
magistrate by the Minister of Justice to proceed with the matter in accordance
with section 12 (holding an enquiry) while subsection (2) in peremptory terms
commands the magistrate to endorse such external warrant ‘… if he or she is
satisfied that the external warrant accompanying the request is authenticated
as contemplated in section 18 (1), …’.

[23] Though the magistrate in the endorsement states that he was satisfied
that the external warrant of arrest was duly authenticated, it would seem that
on the warrant itself, there is no proof of authentication on which the
magistrate could rely when he was so satisfied. The warrant is a copy of the
original and bears a stamp which is illegible. Whether the stamp relates to any
form of authentication or the certification of the copy as a true copy of the
original, is not clear from the document. In any way, as far as it concerns the
external warrant of arrest, there is no proof of authentication on the warrant,
or otherwise, in support thereof as provided for in either subsections (a) or (b)
of section 18 (1) of the Act.

[24] Section 18 regulates the authentication of foreign documents and


provides as follows:

‘(1) No deposition, statement on oath or affirmation taken, whether or not


taken in the presence of the person whose return has been requested, or any
10

document, or any record of any conviction, or any warrant issued in a requesting


country, or any copy or sworn translation thereof, may be tendered under section 8 or
be received in evidence at an appeal under section 14 or at an enquiry; unless such
deposition, statement, affirmation, document, record, or warrant, or any copy or
sworn translation thereof-
(a) has been authenticated in the manner in which foreign documents
may be authenticated to enable them to be produced in any court in
Namibia or in the manner provided for in the extradition agreement
concerned; or
(b) has been certified as the original or as true copies or translations
thereof by a judge or magistrate, or by an officer authorized thereto by
one of them, of the requesting country concerned.
(2) Any-
(a) record of conviction and sentence by a court of competent jurisdiction;
(b) statement by a competent judicial or public officer of the law of a
requesting country; or
(c) deposition, statement, or affirmation which has been made, sworn, or
affirmed by any person,
which has been authenticated or certified in the manner contemplated
in subsection (1) shall on its production in an appeal under section 14
or in any enquiry be prima facie proof of the facts stated therein.’
(Emphasis added)

[25] This section makes plain that the magistrate, when acting in terms of
section 10 of the Act, had to be satisfied that the external warrant of arrest
was duly authenticated and in the present instance, this was clearly not the
case. In these circumstances the magistrate should not have relied on it when
endorsing the external warrant of arrest. The magistrate should have
communicated to the Minister that the warrant was not authenticated as
required by the Act whereafter the Minister could have acted in terms of
section 9, requesting further particulars (regarding authentication of the
warrant of arrest) from the requesting country. No such request or information
was made to the Minister as the magistrate endorsed the external warrant of
arrest without properly considering the authenticity of the said warrant. Prima
facie the external warrant of arrest, the magistrate was not permitted to
authorise the warrant of arrest as he did, hence the endorsement was
11

irregular. Be that as it may, by the time the magistrate endorsed the warrant of
arrest, appellant had already appeared in court and was ordered to remain in
custody pending the enquiry.

[26] I turn next to consider the second leg under (a) which concerns
extraditable offences.

[27] Section 2 of the Act provides for the extradition of a non-Namibian


citizen accused of an extraditable offence committed within the jurisdiction of
a country contemplated in section 4 (1), while section 3 defines ‘extraditable
offence’ to mean:

‘…an act, including an act of omission, committed within the jurisdiction of a


country contemplated in section 4(1) which constitutes under the laws of that country
an offence punishable with imprisonment for a period of 12 months or more and
which, if it had occurred in Namibia, would have constituted under the laws of
Namibia an offence punishable with imprisonment for a period of 12 months or more.’
(Emphasis added)

[28] The first offence for which the appellant was charged is a contravention
of section 341 of the Indian Penal Code for the alleged wrongful restraint of
the complainant. This particular offence, however, does not satisfy the
requirement of being an offence punishable with imprisonment for a period of
12 months or more in the requesting country, as the sentence provided for in
the Code is: ‘Simple imprisonment for one month or [a] fine of Rs.500/-
(Rupees five hundred)’. Accordingly, it is not an extraditable offence as
defined in the Act. The remainder of the charges meet the statutory requisites
and, for purposes of the present proceedings, are considered extraditable
offences.

[29] This notwithstanding, the magistrate found the appellant extraditable on


all the offences charged. The Supreme Court in S v Koch 2006 (2) NR 513
(SC) at 544B-C found that, in a case where there are multiple charges, the
magistrate must be satisfied that in respect of each charge a prima facie case
12

has been made out before the person can be committed on that particular
charge. This does not only relate to the evidence presented, but also to the
charge itself. The magistrate clearly committed a misdirection when he
committed the appellant on all the charges and should have declined the
request in respect of the charge relating to section 341 of the Indian Penal
Code.

[30] The next ground of appeal concerns the admissibility of statements


adduced at the enquiry which did not satisfy the requirement of admissibility
set out in the Act. The statements referred to include the statements of four
minor children and the complainant, Mr. Gorman; statements which counsel
submits fail to meet the requirements provided for in sections 8 and 18 (the
latter quoted above) of the Act, read with rule 128 of the Rules of the High
Court.

[31] The particulars and the nature of the documents required in support of
the extradition request are set out in section 8, the relevant part thereof
providing as follows:

‘(1) Notwithstanding the terms of any extradition agreement which may be


applicable, a request made under section 7 shall be accompanied-
(a) by the full particulars of the person whose return is requested and
information, if any, to establish that person's location and identity;
(b) by the full particulars of the offence of which the person is being
accused or was convicted and in respect of which his or her return is
sought, a reference to the relevant provisions of the law of the
requesting country which were breached by the person and a
statement of the penalties which may be imposed for such offence;
(c) by a statement or statements containing information which set out
prima facie evidence of the commission of the offence contemplated in
paragraph (b) by the person whose return is requested;
(d) by the original or an authenticated copy of the external warrant issued
in relation to the person whose return is requested; and
(e) ….
13

(2) All particulars and copies of all documents contemplated in subsection (1)
shall be made available to the person whose return is requested.
(3) Any document referred to in subsection (1) which is not drawn up in the
English language shall be accompanied by a sworn translation thereof in that
language.’
(Emphasis added)

[32] It is settled law that the judicial officer tasked to consider whether or not
a prima facie case has been made out in an extradition enquiry against the
person whose extradition is sought, must apply the evidentiary rules
applicable in Namibia (S v Bigione 2000 NR 127 (HC)). In the present matter
what the magistrate was thus required to do, with the view of determining
whether a prima facie case has been made out, was to examine the evidence
presented in the light of its admissibility and the applicable laws of Namibia.
Appellant contends that the magistrate failed to comply with a number of
evidential rules applicable.

[33] The supporting statements include two statements of Mr. Gorman, the
complainant, the first being an unsworn statement he had prepared on his
own and which was handed to the police of Puri ‘for future strategy to curb the
issue which is very serious’. The second is a deposition apparently made in
court before a judge on 4 December 2013 in Puri.

[34] With regard to the first statement of Mr. Gorman not made on oath, this
statement does not satisfy the requirements provided for in section 18 (1) in
that it is not a sworn statement and neither has it been authenticated; hence it
should not have been tendered in support of the application at the enquiry as
it was inadmissible evidence. To have admitted same and rely upon the facts
contained therein, as the magistrate did, clearly constituted a misdirection.

[35] As for the complainant’s deposition, the statement reflects that this was
made on oath during criminal proceedings before the ‘Court of the Sessions
Judge’ of Puri and as such would be admissible as evidence in a court of law
in this country. It also bears the seal of the court of the district judge. I pause
14

to observe that in his testimony Mr. Gorman narrated to the court an incident
he witnessed involving an unknown man committing a sexual act with a young
boy. During a scuffle between him and this person he (complainant) managed
to grab a bag from the man and part of its content was a boarding pass which
he had kept. He however failed to mention what he did with it or how it ended
up with the police. From his testimony it is further clear that he later returned
to the scene and established contact with some boys from that area whom he
then questioned. He made video recordings of their statements and on the 2 nd
of December 2013 he lodged his written statement with the police of Puri. I
have summarised the complainant’s version to show that even if the
deposition were found to be admissible during the enquiry, the appellant was
not incriminated by the complainant in any manner.

[36] Anup Kumar Sahoo is the Superintendent of Police, Puri, and states in
his affidavit that he is acquainted with the facts of this case and that he
scrutinized the records forming part of the investigation. Part of his statement
is a summary of the facts which includes an explanation as to how the
complainant traced the name that appears on the boarding pass to a guest
with the same name at the Hotel Sea Queen Inn, and how a copy of that
person’s passport was obtained from the hotel. In the absence of evidence by
the complainant in the form of sworn statements confirming the incriminating
allegations contained in the statement of Superintendent Sahoo, his evidence
in that respect, constitutes inadmissible hearsay evidence. Also contained
therein are full particulars of the offences the person is being accused of and
the statutory provisions said to have been breached. The affidavit bears the
stamp of the Court of the Sub-Divisional Judicial Magistrate.

[37] The Final Report of the investigating officer forms part of a set of
documents issued by the ‘Court of Special Judge Puri’, none of which being
sworn statements, though each document bears the seal of the Puri district
court.

[38] Also filed are statements purportedly made by the children with whom
Mr. Gorman had met during a follow-up visit to the scene and nearby village.
15

These statements seemed to have been generated from the video/audio


recording made by him during his visit and reduced to writing by the police
and thereafter translated into the English language by a Superintendent of
Police, Puri. There is no indication that any of these statements were given on
oath, affirmation or that the children were admonished to speak the truth
before giving the statements. This was probably brought about by Mr. Gorman
having personally obtained their oral statements and not the police. By reason
of the translation of these statements not being done by a sworn translator as
required under section 8 (3) of the Act, the need to decide whether or not the
children were competent witnesses for purposes of the enquiry, falls away. I
accordingly express no opinion on this point. The provisions of section 8 (3)
are clear, namely, that any document or statement accompanying the
extradition request, which is not drawn up in the English language, ‘shall be
accompanied by a sworn translation thereof in that language’. (Emphasis
added)

[39] The only inscription appended to the translated statements reads:


‘Translated into English’ with a signature and the date, apparently being done
by a Superintendent of Police, Puri. There is no accompanying statement or
document confirming that the translator is a sworn translator, albeit ex officio.
In the absence of such certification the statements of the child witnesses are
inadmissible and should therefore have been excluded as evidence at the
enquiry. The magistrate’s finding in this regard was that these statements
satisfy the requirements of the said section because same were ‘sworn or
affirmed by the Superintendent of Police, Puri’. The learned magistrate’s
interpretation of the section is clearly wrong and when read together with
section 18 (1)(a) and (b) of the Act, he should not have had regard to the child
witness statements when he considered the application.

[40] The authentication of documents or lack thereof, as contended on


appellant’s behalf, stands central to the appeal. The provisions of section 18
(1) clearly stipulates that unless any deposition, statement, affirmation,
document, record, or warrant, or any copy or sworn translation has either
been authenticated in the manner provided for in subsection (a) or has been
16

certified as the original or as true copies or translations thereof by a judge or


magistrate, or by an officer authorized by such person in the requesting
country, none of these documents may be tendered in support of the request
for the return of a person (section 8) or be received in evidence at either the
enquiry or subsequent appeal (section 14).

[41] The manner in which documents must be authenticated is set out in


subsection (a) of section 18 (1) which states that it should be such that it can
be produced in any court in Namibia or in the manner provided for in the
extradition agreement concerned.

[42] With regard to authentication of documents tendered by the requesting


country in a similar matter the court in Koch (supra) at 531A-C said the
following:

‘[77] It was pointed out by Mr Botes, who argued this part of the appeal that
this issue is dealt with by High Court Rule 63 and that that Rule and the Magistrates'
Courts Rules concerning authentication are essentially the same. The authentication,
which is a process of verification of signatures appearing on foreign documents, is
fully dealt with in the said Rules. In certain instances the Court is relieved from
requiring strict compliance with the Rule. That would be in instances where the Judge
or magistrate is satisfied by other evidence that the signature appended is the
signature of the person purported to have signed the document. This relaxation of the
Rule does, however, not mean that the Judge or magistrate can do away with
authentication altogether.’

[43] Whereas the enquiry was conducted in the magistrate’s court, the
Magistrate’s Court Rules on the authentication of documents would find
application. However, despite close scrutiny of the Magistrate’s Court Rules I
have been unable to find any Rule providing for authentication of documents;
neither has counsel been able to direct me to such Rule. It would thus appear
that the court in Koch accepted as correct the submission made by Mr Botes
that the Magistrate’s Court Rules provide for the authentication of documents
which does not appear to be the case. Be that as it may, what is required in
section 18 (1)(a) is that authentication of documents must be done in the
17

manner in which foreign documents are authenticated for production in any


court in Namibia. In seems to me that in the absence of any provision in the
Magistrate’s Court Rules specifically providing for authentication of foreign
documents, section 18 must be interpreted to include the Rules of any other
court in Namibia, and in such instance the Rules of the High Court must be
invoked.

[44] Rule 128 of the Rules of the High Court provides for the authentication
of documents executed outside Namibia for use within Namibia and states as
follows:

‘(1) In this rule, unless the context otherwise indicates –


“document” means any deed, contract, power of attorney, an affidavit, a solemn or
attested declaration or other writing; and
“authentication” means, in relation to a document, the verification of any signature
thereon.
(2) A document executed in any country outside Namibia is, subject to
rule (3), considered to be sufficiently authenticated for the purpose of use in Namibia
if it is duly authenticated in that foreign country by –
(a) a government authority of that country charged with authentication of
documents under law of that country; or
(b) a person authorised to authenticate documents in that foreign country,
and a certificate of authorisation issued by a competent authority in that foreign
country to that effect accompanies the document.
(3) Subrule (2) does not apply to an affidavit or a solemn or attested
declaration purporting to have been made in Australia, Botswana, Canada, France,
Germany, Lesotho, New Zealand, South Africa, Swaziland, the United Kingdom,
Zambia, or Zimbabwe before a commissioner of oaths or by whatever name called
appointed as such in terms of any law of that country.’
(Emphasis added)

[45] The way I understood the submissions made by Mr Nduna is that the
seals or stamps of the district court, Puri, appended to the documents, is proof
of authentication of those documents and therefor satisfy the requirements set
out in the Act. Besides the seal or stamp there is no further information
18

explanation as to the purpose of these seals or stamps and if intended to


serve as authentication, whether the person who appended same was
authorised to authenticate documents in that country. A further requirement is
that a certificate of authorisation issued by a competent authority in that
country, in this instance India, as proof of such authority, must accompany the
document. None of the documents or statements received in evidence
satisfies the requisites envisaged in the Rules and should therefore not have
been admitted in evidence at the enquiry.

[46] The magistrate in his judgment referred to the requirements that have to
be met when dealing with documents from a foreign country and that these
documents must be authenticated in the manner prescribed by the rules of
court. Clearly realising that the documents presented to him did not meet the
statutory requirements of the Act, the magistrate, relying on principles
contained in The Hague Convention, to which Namibia acceded, found that
the court was relieved from strict compliance with the requirements pertaining
to the authentication of documents.

[47] However, as correctly pointed out by Mr Namandje, The Hague


Convention did not find application for two reasons: Firstly, no Apostilles were
attached to any of the relevant documents; secondly, there was no evidence
before the court that India acceded to the aforesaid Convention and that it
was still a contracting state thereto (see Koch (supra) at 533H-I). Though Mr
Nduna relied on The Hague Convention at the enquiry in support of his
submissions that the court is relieved from strict compliance with statutory
provisions, he now concedes that, in the absence of Apostilles added to any
of the documents, the Convention cannot be relied upon. This means that on
the documents tendered at the enquiry, there was no basis on which the court
could relax the requirements provided for in the Act and thus committed a
misdirection by finding otherwise.

[48] From the above it follows that none of the witness statements describing
criminal conduct, allegedly by the appellant, satisfy the requirements of
evidence admissible at an enquiry conducted in terms of section 12 of the
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Extradition Act. An inevitable consequence thereof is that without such


evidence there can be no prima facie case against the appellant and the
appeal must succeed.

[49] I deem it necessary to echo the sentiments of the court in the Koch
matter regarding the high standard of proof and the onus on the State to show
that there is prima facie evidence that the person, whose extradition is sought,
committed the alleged crimes in a foreign country. The present instance
illustrates the difficulties the requesting country may encounter when
preparing documents and statements supporting the request for extradition,
while such country might not always be familiar with our law and the standard
of proof that is required before the person could be extradited to a foreign
country. Despite calls made by the Supreme Court of this country on the
Legislature, already as far back as 2006, to address this unfortunate situation,
no progress has been made to date in that regard. The impression might be
created that Namibia is a safe haven to criminals who have committed serious
offences outside its borders and the chances of having them successfully
extradited, being remote.

[50] For the above stated reasons I have come to the conclusion that the
magistrate on the evidence adduced could not have been satisfied that the
requirements set out in section 12 (5) of the Act had been met and instead,
should have discharged the appellant.

[51] In the result the following order is made:

The appeal is upheld and the appellant to be discharged forthwith.


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________________
JC LIEBENBERG
JUDGE

________________
NN SHIVUTE
JUDGE
21

APPEARANCES

APPELLANT S Namandje and K Amoomo


Of Sisa Namandje & Co. Inc.,
Windhoek.

RESPONDENT S Nduna
Of the Office of the Prosecutor-General,
Windhoek.