Case  CCT 280/24 ; CCT190/25
[2026] ZACC 03

Hearing Date:  04 November 2025

Judgement Date: 23 January 2026

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 23 January 2026 at 11h30 the Constitutional Court handed down a unanimous judgment authored by Justice Theron in two applications that were heard together.

The first application, CCT 280/24, was the Schultz matter. The applicants in Schultz sought condonation and leave to appeal against a judgment of the Supreme Court of Appeal. The second application, CCT 190/25, was the Cholota matter. The applicant in Cholota sought direct leave to appeal against a judgment of the High Court of South Africa, Free State Division, Bloemfontein.

In the Schultz matter, the first respondent, Mr Jonathan Schultz, approached the High Court of South Africa, Gauteng Division, Pretoria in 2022 after obtaining information that the National Prosecuting Authority (NPA) intended to seek his extradition from the U.S. He sought, amongst others, a declarator that only the Minister of Justice, in his capacity as a member of the national Executive, has the power to make extradition requests to foreign states. The Pretoria High Court dismissed Mr Schultz’s application. On appeal, the Supreme Court of Appeal reversed the High Court’s order and declared that the Minister of Justice, not the NPA, has the authority to request Mr Schultz’s extradition from the U.S.

In the Constitutional Court, the applicants in Schultz sought an order limiting the retrospectivity of the order of the Supreme Court of Appeal, and condonation for the late filing of their application for leave to appeal.

The Supreme Court of Appeal’s judgment in the Schultz matter became pivotal to the Cholota matter. Ms Nomalanga Moroadi Selina Cholota was extradited from the U.S. in 2024 following an extradition request made by the Director of Public Prosecutions (DPP). During a criminal trial in the Bloemfontein High Court, Ms Cholota raised four grounds in a special plea challenging the High Court’s jurisdiction over her on the basis that her extradition was unlawful. A trial-within-a-trial ensued. During her closing address, Ms Cholota’s counsel produced a copy of the Supreme Court of Appeal’s judgment in Schultz and argued that Ms Cholota’s extradition was made by the incorrect state functionary. The Bloemfontein High Court found that it was bound by that judgment and that, as a result, it did not have criminal jurisdiction over Ms Cholota.

In a unanimous judgment penned by Theron J (with Mlambo DCJ, Kollapen J, Majiedt J, Mathopo J, Mhlantla J, Musi AJ, Nicholls AJ, Rogers J, Savage AJ, and Tshiqi J concurring), the Constitutional Court found that the Cholota matter engages its constitutional and general jurisdiction as the matter raises both key constitutional issues and arguable points of law of general public importance. The Court also found that direct leave to appeal should be granted, as it would be in the interests of justice to finalise the matter on an urgent basis.

On the merits of the Cholota matter, the Court held that the State’s right to be heard was infringed during the trial-within-a-trial, in that counsel for Ms Cholota raised the argument that Ms Cholota’s extradition was unlawful because it was issued by the NPA for the first time during her closing address. Advancing a new ground for a special plea during the closing address deprived the State of the opportunity to respond, in violation of section 106(3) of the Criminal Procedure Act. The Bloemfontein High Court erred in dismissing the State’s objection on this issue.

The second issue the Court considered was which state functionary possesses the authority to make outgoing extradition requests. The Court affirmed that the legal process of outgoing extradition requests, by its nature, functions at the intersection between domestic and international law. Domestically, the prosecuting authority usually initiates a prosecution and prepares the requisite documents for an extradition request. Internationally, the requesting state generally transmits the request to another state. Necessarily, the international stage of this process involves acts of external sovereignty.

In assessing the NPA’s powers in this process, the Court held that the final authority to make extradition requests to foreign states is not an implied power of prosecutorial authority. This is because the international stage of outgoing extradition requests entails sensitive diplomatic and foreign relations considerations, which fall squarely within the domain of the national Executive. In other words, the international stage of outgoing extradition requests cannot be entirely subsumed under prosecutorial proceedings, and the separation of powers principle forbids the NPA from controlling the entire process.

While the Court recognised the importance of prosecutorial independence, it found that prosecutorial independence does not license the NPA to exercise powers beyond its ambit of authority. The NPA possesses broad powers over prosecutorial proceedings, which cover much of the domestic stage of outgoing extraditions. As a domestic state organ, however, it cannot represent South Africa at a state-to-state level. Therefore, although the final authority to make outgoing extradition requests could affect domestic prosecutions, the Court found that the NPA cannot exercise the external sovereignty inherent in such requests.

Regarding the national Executive’s authority, the Court found that as the state organ clothed with the duty to exercise external sovereignty on behalf of the Republic, it is the appropriate functionary to make extradition requests to foreign states. The Executive cannot merely participate in the issuance of outgoing extradition by playing an administrative role akin to that of a “conduit” – it must apply its mind to the extradition request and exercise a concomitant discretion. The Court, however, held that the Supreme Court of Appeal erred by concluding that only the Minister of Justice can make outgoing extradition requests. That power is vested within the national Executive broadly.

Therefore, the Court concluded that in the case of Ms Cholota, the DPP did not have the power to make a request for her extradition. To the extent that the Bloemfontein High Court found that her extradition was, for this reason, irregular and unlawful, it was correct.

The Court next considered the status of the U.S. court order. The DPP argued that because Ms Cholota was extradited pursuant to an unchallenged U.S. court order, South African courts could not impugn that extradition. The Court found that argument to be misconceived. Ms Cholota challenged acts of South African officials in requesting her extradition, not the conduct of U.S. officials. South African courts are empowered to examine the lawfulness of the exercise of public power by South African officials, and the U.S. court order does not preclude such examination.

The Court next had to determine whether, despite the unlawfulness of her extradition, the Bloemfontein High Court nonetheless had jurisdiction over Ms Cholota. The Bloemfontein High Court’s sole basis for declining to exercise criminal jurisdiction was that Ms Cholota’s extradition was requested by the incorrect state functionary. It relied on S v Ebrahim for the principle that “if there were unlawful or improper conduct on the part of the organs or the functionaries of the South African State in foreign territory aimed at securing the presence of an accused in South Africa, the South African Courts are precluded from trying anyone for crimes committed within its borders”.

The Court found that there could be no doubt that the Ebrahim principle remains an important feature of South African law. The rule of law and the constitutional guarantee of procedural fairness in criminal cases must be jealously guarded. However, following a survey of foreign jurisprudence which considered the Ebrahim judgment, the Court found that, while Ebrahim established an important precedent, it does not mean that any irregularity in extradition proceedings, no matter how insignificant, should result in a court declining to exercise its criminal jurisdiction. Such reasoning is not supported by the facts of Ebrahim, and would not strike an appropriate balance between the concern for lawful process and the imperative to combat impunity. A court is only divested of its criminal jurisdiction in cases where the exercise thereof would bring the administration of justice into disrepute.

The Court found that in the Cholota case, the Bloemfontein High Court failed to recognise that Ms Cholota’s case differed from the facts in Ebrahim in material respects. Importantly, the NPA operated under the bona fide assumption that it had the necessary authority to request extradition. It was only after the delivery of the Supreme Court of Appeal’s judgment in Schultz that the NPA had to grapple with the question of whether it had authority to do so. There was no suggestion that, had the Executive and the NPA been aware of the correct legal position, Ms Cholota’s extradition would not have been requested correctly. Consequently, the Bloemfontein High Court erred in declining to exercise its jurisdiction over Ms Cholota on the sole basis that her extradition was requested by the NPA. For this reason, the appeal had to succeed.

In the Schultz matter, the applicants sought condonation for the late filing of their application for leave to appeal. The Court held that condonation is not there for the taking. The applicants filed their application for leave to appeal approximately three months after the 15-day deadline period prescribed by the Rules of the Constitutional Court had lapsed. A three-month delay is substantial, and the Court found that it had refused condonation for shorter delays in the past.

The Court found that the explanation for the delay proffered by the applicants left much to be desired. They blamed most of the delay on their misunderstanding that the Department of Justice and Constitutional Development intended to launch an appeal, and on difficulties they had in briefing counsel, given the State Attorney’s cumbersome briefing policy.

The Court found that neither of these reasons was satisfactory. A litigant cannot escape the obligation to comply with the Court’s rules on the mere allegation that it thought another cited party would lodge an appeal. The applicants abandoned their appeal in respect of the merits and instead only sought an order limiting the retrospective effect of the judgment of the Supreme Court of Appeal. The judgment, they argued, would result in catastrophic consequences for the administration of justice, as it potentially provides a basis for persons whose extraditions had previously been requested by the NPA to challenge and invalidate such extradition requests. This was the ground on which the NPA based its argument that the importance of the issue warranted granting condonation.

The Court found that, on the Ebrahim principle as articulated, a court ought not to decline to exercise its criminal jurisdiction on the sole basis that the accused’s extradition request was authorised by the NPA and not the Executive authority. This principle would hold true for any extradition request already made. Accordingly, even without the relief sought by the applicants to limit the retrospectivity of the Supreme Court of Appeal’s judgment, the harm they feared to the administration of justice is largely, if not completely, ameliorated. Accordingly, the NPA could not slip past the requirement of condonation by relying on the importance of the issue. Thus, condonation had to be refused and the application for leave to appeal had to fail on that basis..

The Full judgment  here