The South African Doctrine of the Separation of Powers Requires

Introduction

The South African doctrine of the separation of powers requires that, when the executive arm of the state must perform functions, the other arms respect this allocation and refrain from interfering with it.[1]In the Director of Public Prosecutions, Johannesburg v Schultz [CCT 280/24], the Constitutional Court grapples with a pivotal separation-of-powers dispute and the crisp issue was whether the power to request the extradition of a person from the United States of America (the US) to stand trial in the Republic of South Africa (the Republic/ South Africa) vests in the executive authority of the Minister of Justice and Constitutional Development (the Minister), or whether it vests in the National Prosecuting Authority (the NPA).[2]This case challenges the potential U.S. extradition, underscoring tensions between prosecutorial autonomy and executive oversight under the Extradition Act.

Facts of the cases

Two applications were heard together in the Constitutional Court. Mr Jonathan Richard Schultz is a South African citizen who has resided in the United States of America (US) since 2019. He approached the Pretoria High Court in 2022 after learning that the NPA intended to seek his extradition. He sought wide-ranging relief, but the only prayer that remains relevant is a declaratory one stating that only the Minister of Justice, in his capacity as a member of the national Executive of the Republic of South Africa, has the power to request Mr Schultz’s extradition from the US. The High Court dismissed his application. On appeal, the SCA set aside the High Court’s order. It reasoned that extradition requests function at both domestic and international levels, involving sovereign acts and foreign relations. The Extradition Act thus grants the Minister of Justice powers over such requests, including under sections 4 and 5.[3]

Schultz SCA became pivotal to the Cholota matter, in which the applicant (the DPP, Bloemfontein) sought direct leave to appeal against the judgment of the High Court of South Africa, Free State Division, Bloemfontein (Bloemfontein High Court). Ms Nomalanga Moroadi Selina Cholota, the respondent in Case CCT 190/25, was in the US when the NPA instituted proceedings against her. The NPA applied for her extradition in January 2022. Ms Cholota was arrested and brought before the United States District Court for the District of Maryland (District Court) in April 2024. Following her arrest, Ms Cholota applied directly to this Court for a declaratory order that the extradition application was unlawful because it was politically motivated. This Court denied her application for direct access. In June 2024, the District Court confirmed that there was sufficient evidence against Ms Cholota to sustain the charges against her. The District Court ordered her committal pending the US Secretary of State’s decision on extradition. In July 2024, the Deputy Secretary of State issued Ms Cholota’s extradition order. She was extradited to South Africa in August 2024.[4]

ISSUES OF THE CASE

The following issues are to be determined in the Cholota Case CCT 190/25:

whether this Court has jurisdiction and should grant leave to appeal directly

whether there was an infringement of the DPP’s right to be heard in the trial-within-a-trial

Which state functionary possesses the authority over outgoing extradition requests

What the status and consequences of the US court order are, and whether the Bloemfontein High Court had jurisdiction to try Ms Cholota.[5]

The following issues are to be determined in the Schultz Case CCT 280/24:

whether condonation should be granted; and if condonation is granted, whether the order in Schultz SCA can and should be varied to render it non-retrospective.[6]

ARGUMENTS PRESENTED

THE APPELLANT’S ARGUMENT (The director of the public prosecution and national prosecution authority)

The DPP submitted that the decision to prosecute an accused who is beyond the borders of South Africa, who must accordingly first be extradited, is a power incidental to the institution of criminal proceedings as contemplated in section 179(2) of the Constitution.  The DPP further submitted that the NPA must exercise its functions without fear, favour or prejudice, in accordance with section 179(4) of the Constitution. The DPP, therefore, contended that the power to issue outgoing extradition requests must lie with the NPA to ensure its prosecutorial independence as a constitutional imperative.[7]

The DPP cited sections 20(1) and 32(1) of the NPA Act to affirm the NPA’s constitutional mandate for functions tied to criminal proceedings and its independence. It noted the Extradition Act’s silence on outgoing requests, arguing that the Act regulates only incoming requests—explicitly empowering the Minister of Justice—while outgoing requests are governed by section 179 of the Constitution. The DPP referenced the US-South Africa Extradition Treaty, which lacks provisions assigning authority for outgoing requests. Though section 179(6) grants the Minister oversight of the NPA, the DPP contended that this does not allow interference with its autonomy.[8]

The respondent’s argument (Ms Cholota)

In the Bloemfontein High Court, Ms Cholota contended that her extradition was unlawful because the state had procured it by telling lies and making misrepresentations to US authorities. She identified four specific categories of misrepresentation and concluded as follows: What is clearly evident is that the State presented false and incorrect information to US authorities. Two South African Courts have already made this finding. The US authorities relied on this information in good faith and acted in accordance with an unknowingly unlawful order.  A trial-within-a-trial was held to determine Ms Cholota’s special plea. In her closing address, Ms Cholota’s counsel invoked Schultz SCA. The state objected that Ms Cholota had not pleaded this ground in her special plea.[9]

Ms Cholota did not squarely address the merits of Schultz SCA, insisting they have no place in her appeal. She maintained that the legal questions before this Court relate specifically to her special plea. Specifically, she submitted that this appeal concerns whether the prosecution proved its case beyond a reasonable doubt in the Bloemfontein High Court and whether that Court arrived at the correct decision.[10]

Arguments of the respondent(Mr Shultz)

He sought wide-ranging relief, but the only prayer that remained relevant is a declaratory one stating that only the Minister of Justice, in his capacity as a member of the national Executive of the Republic of South Africa, has the power to request Mr Schultz’s extradition from the US.[11]

THE COURT’S REASONING AND ANALYSIS

The court began by discussing the doctrine and international stages of extradition, as well as the concept of extradition sovereignty. It defined extradition as the surrender by one sovereign state to another of a person accused or convicted of a crime committed in the requesting state’s jurisdiction, involving acts of sovereignty by both states, a formal request, and delivery for trial or sentencing. Outgoing extradition requests proceed in two stages: domestic preparation by the requesting state’s prosecuting authority, followed by international transmission to the requested state. This process bridges state sovereignty and comity, intersects domestic and international law, and constitutes an act of external sovereignty implicating foreign relations, in which state organs must possess authority to bind the state. In this context, the powers of South Africa’s National Executive and the National Prosecuting Authority (NPA) regarding such requests warrant examination.[12]

The Court also examined whether the NPA had implied authority to issue outgoing extradition requests under its express prosecuting powers under Constitution ss 179(2)/(4) and NPA Act ss 20 (1)/32(1).In Mncwabe, it held implied powers exceptional, existing only when reasonably necessary to effect express legislative powers, rooted in enabling provisions, and rare where certainty was key.AmaBhungane approved that Hoexter implied powers could be ancillary as necessary/reasonable consequences of express ones, with incidental acts impliedly authorized.[13]

Constraining factors included the necessity doctrine to execute express powers, whether legislative objects would fail without it, and the practical reasonableness of express powers absent the implication.[14]

The Court held that the power to make outgoing extradition requests was not necessary to effectuate the NPA’s express prosecutorial powers, for these reasons Outgoing requests involved international components best handled by the Executive, tasked with foreign affairs, diplomacy, and state liaison per Kaunda concurrences by Ngcobo J and O’Regan Executive uniquely assessed sensitive foreign policy, timing, sovereignty, and comity issues section 84(2)(h)/(i), 231(1) of Constitution. Political sensitivities, such as tensions arising from prosecuting prominent fugitives, required the Executive to balance strategic, bilateral, and multilateral interests. The executive ensured state consistency, a unified voice in foreign engagements, and democratic accountability.[15]

The Court reasoned that the national Executive, not the NPA, must authorize outgoing extradition requests at the international level, as these involved bilateral sovereign acts laden with sensitive political and diplomatic considerations for which the domestic NPA was ill-equipped. Granting the NPA such power would sideline Executive oversight, undermining South Africa’s need to speak with one voice in foreign affairs. Separation of powers precluded this under Chapter 8; the NPA held only prosecutorial functions, lacking executive authority to exercise external sovereign powers or to bind South Africa abroad. Those prerogatives resided solely with the democratically accountable Executive, which could not serve as a mere administrative conduit but had to exercise independent discretion.[16]

The Constitutional Court in Schultz rejected the Supreme Court of Appeal’s holding that the Minister of Justice specifically held authority to issue outgoing extradition requests to the US, as the SCA had tied this to the Minister’s role in concluding the US treaty. While affirming that constitutional principles of external sovereignty, executive power, and the separation of powers vest control over such requests in the national Executive generally, the Court clarified that no provision mandates that the Minister of Justice control other Cabinet members. Executive power resided collectively with the President and Cabinet, with the President’s prerogative to assign functions to Ministers, unguided by any constitutional preference for the Minister of Justice. The SCA had erroneously relied on the Extradition Act’s multiple provisions empowering the Minister over incoming extraditions to extend to outgoing requests, despite the Act’s silence on the latter. Instead, the Minister’s incoming powers merely bolstered the broader principle that extradition—implicating sovereign foreign affairs—fell within Executive purview, without imputing specific authority absent clear statutory direction.[17]

JUDGMENT AND RATIO DECENDI

The court declared that the National Prosecuting Authority has the power to prepare, draft, and submit extradition requests to the national Executive for the national Executive to make to a foreign state.  Only the national Executive has the power to make extradition requests to foreign states. The respondent’s extradition from the United States of America to the Republic of South Africa was unlawful on the basis that the applicant authorised the extradition request or an official within the National Prosecuting Authority rather than the national Executive.  However, the fact that the extradition was unlawful as aforesaid does not, of itself, deprive the High Court of South Africa, Free State Division, Bloemfontein, of criminal jurisdiction over the respondent.[18]

CRITICAL ANALYSIS

SIGNIFICANCE OF  THE DECISION

The decision shifts decades of NPA-led practice to executive control, potentially invalidating past requests and prompting challenges in ongoing cases like Moroadi Cholota’s, where courts applied it to trials. The Constitutional Court later addressed retrospectivity in a linked 2026 judgment, mitigating widespread disruption by limiting full retroactive impact while upholding the core principle. This reinforces the separation of powers, prosecutorial independence boundaries, and South Africa’s international obligations.[19]

CASES IMPACT

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 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 primarily, if not wholly, ameliorated. Accordingly, the NPA could not slip past the condonation requirement 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.[20]

Conclusion

The Constitutional Court decisively clarified that outgoing extradition requests are a sovereign act implicating foreign relations vested exclusively in the national Executive, not the NPA, which is limited to preparatory roles. By declaring past NPA-led extraditions unlawful yet affirming High Court jurisdiction as in Cholota, the judgment balances systemic stability against prosecutorial overreach. It prompts procedural reforms without invalidating them wholesale. The decision safeguards prosecutorial independence within domestic bounds. It prevents judicial overreach into diplomacy. Overall, Schultz strengthens South Africa’s constitutional framework.

Biblography

Director of Public Prosecutions, Johannesburg v Schultz and Director of Public Prosecutions, Bloemfontein v Cholota[2026]ZACC 3 (CC)at para 1 (S.Afr.).

Magabe T  Thabo &  Kola O deku Separation of power, checks and balances, and judicial exercise of self-restraint: An analysis of case law.

Nonkululeko Njilo ConCourt hands NPA a lifeline in MoroadiCholota extradition ruling, but denies it key powers.

[1]   Magabe T  Thabo &  Kola O deku Separation of power, check and balances and judicial exercise of self-restraint: An analysis of case law.

[2] Director of Public Prosecutions, Johannesburg v Schultz and Director of public prosecutions,Bloemfointein v Cholota[2026]ZACC 3 (CC)at para 1 (S.Afr.).

[3] Schultz,[2026]ZACC 3 at para 3 and 4

[4] Id at para 6,7 and 8

[5] Id at para 11

[6] Id at para 12

[7] Id at para (38-39),17

[8] Id at para 53 &96

[9] Id at para 8 ,9 & 25

[10] Id at para 40

[11] Id at para 3&4

[12] Id at para34-45

[13] Id at para 46-49,65-66

[14]Id at para 81-83

[15] Id at para 46-49,65-66

[16]Id at para 81-83

[17] Id at para 89 & 97

[18] Id at para 3(a)-(d)

[19]Nonkululeko Njilo ConCourt hands NPA a lifeline in MoroadiCholota extradition ruling-but denies it key powers

[20]  Id para 7