Mozambican NGO Forum de Monitoria do Orcamento (FMO) has told the Gauteng High Court in Johannesburg that a ruling from a magistrate as well as the former justice minister's decision on the extradition of former Mozambican finance minister, Manuel Chang, should be set aside and reviewed.
"The forum submits that the decision by the magistrate to commit Chang, in terms of Section 10(1) of the Extradition Act, to imprisonment pending the minister's decision to surrender Chang in respect of the extradition request by Mozambique is declared to be inconsistent with the Constitution of the Republic of South Africa. It is invalid and should be set aside," advocate Anton Katz SC said on Wednesday.
Katz was arguing in an application by Chang seeking the court to compel newly appointed Justice Minister Ronald Lamola to give effect to his predecessor's [Michael Masutha] decision under Section 11 of the Extradition Act - on May 21 - to extradite him to his home country, instead of the US.
In Masutha's reasoning, he cited that "the interests of justice will be best served by acceding to the request by the Republic of Mozambique".
At the time of the decision, Chang was facing extradition requests from both the US and Mozambique, where he enjoyed automatic immunity as a lawmaker until it was lifted in January.
Masutha's decision followed magistrate William Schutte's ruling in the Kempton Park Magistrate's Court on April 8 that stated Chang should be extradited to the US on fraud-related charges.
In his ruling, Schutte said there was "sufficient evidence to warrant a prosecution".
Katz, on behalf of the FMO, argued that the magistrate's decision was unlawful and this therefore constituted the first ground for reviewing the then-justice minister's decision.
"If the forum's argument is correct that the magistrate's Mozambique committal decision must be declared invalid and set aide, then the minister's decision must obviously also be set aside."
He said Masutha's decision to send Chang to his home country would not result in criminal accountability as he enjoyed immunity.
"Extraditions cannot result in criminal accountability if sought persons are surrendered to states where they are immune [domestically] from criminal prosecution.
"To do so is plainly irrational and bears no link to any legitimate purpose A fortiori [in conclusion] when the crime in question is corruption," Katz said.
In response, the State said the magistrate's order was correct as "it was not necessary for the magistrate to consider immunity, therefore his order should not be set aside".
Chang was arrested at OR Tambo International Airport on December 29 last year while on his way to Dubai. The former finance minister was wanted by the US on allegations of conspiracy to commit fraud and taking millions of dollars in bribes in a $2bn loan scandal, News24 reported.
The case continues.