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Supreme Court of Appeal of South Africa dismisses Kouwenhoven’s appeal in two matters

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On 22 September 2021, the Supreme Court of Appeal (SCA) handed down two judgments in the matter Kouwenhoven v Minister of Police and Others and Kouwenhoven v Director of Public Prosecutions, Western Cape and Others relating to the extradition proceedings of Augustinus Petrus Maria Kouwenhoven (Kouwenhoven). Kouwenhoven is a Dutch citizen, who has been convicted by the Court of Appeal of ‘s-Hertogenbosch to a sentence of 19 years imprisonment for complicity in war crimes. Kouwenhoven’s appeal in both matters aimed to avoid the extradition that is requested by the Netherlands.

The judgment in the first matter focused on the validity of the arrest and whether there was an undertaking with state officials not to arrest Kouwenhoven. The SCA concluded that the arrest was lawful and that there was no such agreement or undertaking. The judgment in the second matter discussed the meaning of ‘committed within jurisdiction’ in terms of section 3(1) of the Extradition Act and whether such terminology is limited to the territorial jurisdiction of the state that requests the extradition. In that regard, the Court held that such jurisdiction in terms of the Extradition Act is not confined to territorial jurisdiction of the court of the requesting state.

In November 2020, following SALC’s application seeking a cancellation of Kouwenhoven’s visa, the Department of Home Affairs had revoked Kouwenhoven’s visa and declared him an “undesirable person” in terms of the Immigration Act.

Atilla Kisla, Legal Consultant for SALC pointed out that:

We welcome the continued recognition of extra-territorial jurisdiction such as universal jurisdiction by the South African courts and are hopeful that this judgment will pave the way for an extradition of Mr. Kouwenhoven to the Netherlands.

Wayne Ncube, National Director of Lawyers for Human Rights noted that:

We welcome the judgments handed down by the SCA today. We believe this is an important step in ensuring that South Africa does not become a safe haven for war criminals and contributes towards accountability for the most heinous crimes on the African continent.”

Issued by the Southern Africa Litigation Centre and Lawyers for Human Rights

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