Case  CCT 258/24
[2025] ZACC 29

Hearing Date:  13 February 2025

Judgement Date: 23 December 2025

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Tuesday, 23 December 2025 at 10h00, the Constitutional Court handed down judgment in an application for confirmation of an order of constitutional invalidity made by the High Court of South Africa, Western Cape Division, Cape Town (High Court). The applicant, Mr Iain George Dallas Wares, an 84-year-old self-confessed paedophile residing in the Cape Peninsula, is the subject of an extradition request made by the United Kingdom under the European Convention on Extradition, to which South Africa is a signatory. The prosecuting authorities in Scotland seek his surrender to stand trial in Edinburgh on various counts described in Scottish law as “lewd, indecent and libidinous practices and behaviour”, and a single charge of indecent assault.

A warrant of arrest for the applicant’s extradition was executed at his home on 22 May 2019. He appeared before the Additional Magistrate, Simonstown (Magistrate) the following day and was released on bail in terms of section 9(2) of the Extradition Act 67 of 1962 (Act). On 12 July 2019, extradition proceedings under section 10 of the Act commenced before the Magistrate. During the section 10 extradition enquiry, the applicant made certain admissions which led the Magistrate to determine that he was liable to be surrendered to the United Kingdom. The Magistrate accordingly issued a committal order for his extradition and then extended his bail pending the decision of the Minister of Justice and Correctional Services (Minister) on whether he would be surrendered.

Following the extradition enquiry, the applicant made written representations to the Minister arguing that his extradition would not serve the interests of justice and would constitute severe punishment given his poor health. Notwithstanding these submissions, on 19 February 2020 the Minister decided that the applicant should be surrendered to the United Kingdom to stand trial. The applicant approached the High Court, challenging the Magistrate’s extradition decision by way of appeal and review, and also sought a review of the Minister’s decision to surrender him.

The Minister and the Director of Public Prosecutions, Western Cape (DPP) brought a counter-review, seeking an order that the Magistrate’s decision to extend the applicant’s bail be declared unlawful and beyond the Magistrate’s legal powers. They contended that section 10(1) of the Act required that once a Magistrate finds a person liable to be extradited, that person must be committed to prison to await the Minister’s decision, with no provision for bail.

Confronted with the counter-review, the applicant brought a constitutional challenge against section 10(1) of the Act. He contended that this provision was unconstitutional because it did not permit a person committed thereunder to be released on bail after the committal order was issued, pending finalisation of the Minister’s decision or pending a review of the Magistrate’s decision. He argued that this constituted an unjustified limitation of section 12(1)(a) of the Constitution, which protects the right not to be deprived of freedom arbitrarily or without just cause. The constitutional challenge was conceded by the respondents.

The High Court upheld the constitutional challenge and declared section 10(1) of the Act inconsistent with the Constitution and invalid to the extent that it does not provide for the power of a Magistrate to extend or grant bail after a committal order is made. The Court found that while the substantive deprivation of freedom was justified by South Africa’s international extradition obligations, the procedural aspect of the right to freedom was violated. This is because Magistrates are unable to play the role of independent arbiters in determining whether an extraditee should be released on bail pending finalisation of the extradition process. The High Court suspended the declaration of invalidity for 24 months to afford Parliament an opportunity to enact remedial legislation and ordered a temporary reading-in provision as section 10(5) of the Act.

The applicant’s appeal against the Magistrate’s decision succeeded partially, and he was found liable to be surrendered in respect of only three of the eight offences for which his extradition was originally sought. The matter was then referred to this Court for confirmation of the order of constitutional invalidity in terms of section 172(2)(a) of the Constitution.

Before this Court, the respondents accepted that section 10(1) is unconstitutional to the extent that it does not provide for bail after a committal order. However, the parties disagreed on the content of the reading-in remedy. The applicant sought confirmation of the High Court’s reading-in order. The respondents proposed that extraditees should be required to apply for bail and that the bail regime prescribed in section 60 of the Criminal Procedure Act 51 of 1977, including the exceptional circumstances test for Schedule 6 offences, should be imported into extradition proceedings.

In a unanimous judgment authored by Acting Justice Dambuza, the Constitutional Court confirmed the High Court’s declaration of invalidity. The Court held that the mandatory committal under section 10 of the Act, pending the Minister’s decision, without an individualised assessment of whether deprivation of liberty is justified, undermines both the procedural facet of the right to freedom under section 12(1)(a) and the right to bail protected under section 35(1)(f) of the Constitution. The Court found that the deprivation is arbitrary and constitutionally unsustainable, particularly where less restrictive means to achieve the purpose of extradition are available.

On remedy, the Court rejected the respondents’ proposal to import the Schedule 6 bail regime from the Criminal Procedure Act into extradition proceedings. The Court emphasised that extradition proceedings are unique and that extraditees are not accused persons within the South African criminal justice system. However, the Court found that requiring extraditees to apply for bail is consistent with the interests of justice and sets a procedural rule as to who initiates bail proceedings, rather than imposing a reverse onus of proof. The Court held that this approach is consistent with section 13(3) of the Act, which already requires extraditees who have lodged appeals to apply for bail.

The Court suspended the declaration of invalidity for 24 months to allow Parliament to enact remedial legislation. It ordered that the following words be read into the Act as section 10(5): “The Magistrate issuing the committal order may, on application by such person, grant bail or extend the bail of such person, if the interests of justice permit the person’s release or continued release on bail, pending the Minister’s decision in terms of section 11 of this Act, or pending any legal proceedings instituted to review the decision of the Magistrate or the Minister, on condition that such person deposits with the clerk of the court, or with a member of the Department of Correctional Services, or with any police official at the place where such person is in custody, the sum of money determined by the magistrate.”

The Court emphasised that the interests of justice standard does not impose an onus on the extraditee but is an obligatory constitutional rule that is sufficiently flexible to accommodate both the freedom interests of extraditees and the important state interest in fulfilling international obligations.

The Court ordered the Minister and the DPP to pay the applicant’s costs, including the costs of two counsel..

The Full judgment  here