Convicted war crimes arms dealer living in the Cape bid not to be extradited to the Netherlands is dismissed

Guus Kouwenhoven, fiie image

Guus Kouwenhoven, fiie image

Published Sep 23, 2021


Cape Town - An appeal by convicted war crimes arms dealer Guus Kouwenhoven to the Supreme Court of Appeal of South Africa not to be extradited to the Netherlands has been dismissed and he could face his sentence there.

Kouwenhoven was convicted of arms trafficking in Liberia while Charles Taylor was the African country’s president.

Kouwenhoven fled to South African in December 2016, claiming it was for medical reasons, and in April 2017, though not in his own country, he was convicted in absentia to 19 years imprisonment for illegal arms trafficking involving the war crimes in Liberia and Guinea.

He had been arrested at his home in Fresnaye in Cape Town after a Dutch warrant had been issued by the South African Police, and he made an appearance at the Cape Town Magistrates’ Court.

Last year, the court ruled that he could not be extradited to the Netherlands in terms of the South African Extradition Act because the crimes were not committed in the Netherlands but in Liberia.

Now, in a lengthy battle against the South African Police and the Directorate of Public Prosecutions, Kouwenhoven fought with two appeals not to be extradited to the Netherlands as he now resides as a businessman and resident in Cape Town who formerly had business ties in Liberia.

According to court appeal paperwork, Kouwenhoven’s bid not to be extradited had been dismissed and he could be shipped off to the Netherlands to face his sentence.

“These two appeals arose out of Mr Kouwenhoven's endeavours to avoid his extradition to the Netherlands.

“He is a Dutch citizen, at present a resident in Cape Town, and a businessman who formerly had significant business interests in Liberia.

“The first appeal arose from review proceedings instituted by him to challenge the validity of his arrest and his being brought before a magistrate in Cape Town to face an extradition enquiry.

“The review failed in the high court, and his appeal was dismissed today.”

Kouvwenhoven sought four avenues not to be extradited, including that Interpol’s desk would not be interested in his process back to the Netherlands, and this was also due to an extradition treaty between the said country and South Africa.

“The review challenged Mr Kouwenhoven's arrest on four grounds,” the documents read.

“He contended that his attorney had concluded an agreement or obtained an undertaking from a police officer stationed at the Interpol desk in Pretoria that Mr Kouwenhoven would not be arrested pursuant to an application by the Netherlands for his provisional arrest under the extradition treaty between that country and South Africa.

He said a similar agreement had been concluded or undertaken by a senior legal adviser in the Department of Justice and Constitutional Development. The SCA held that no such agreement was concluded and no undertaking was given. It also expressed strong reservations at the proposition that either official was empowered to conclude such an agreement or furnish such an undertaking.

“The remaining grounds of review were that the police officer's affidavit on which the arrest warrant was issued was not properly attested; that the magistrate merely 'rubber stamped' the request for the issue of a warrant; and that after issuing the warrant the magistrate failed to inform the Minister of Justice and Constitutional Development of that fact as required by s 8(2) of the Extradition Act.

“The SCA rejected each of these arguments. As a result, the appeal was dismissed.

“After the review had been dismissed in the high court, an extradition enquiry was convened before a magistrate in Cape Town in terms of s 10 of the Extradition Act.”

It was due to the findings that Kouwenhoven had been convicted of crimes in Liberia and not the Netherlands that he chose to review his extradition process.

The document further states he launched an appeal after this: “At the end of that enquiry, the magistrate discharged Mr Kouwenhoven on the grounds that the criminal conduct, of which he had been found guilty had been committed in Liberia and not the Netherlands. The Director of Public Prosecutions, Western Cape, then required the magistrate to state a case in terms of s 310(1) of the Criminal Procedure Act 52 of 1977 and appealed to the Western Cape Division of the High Court.

This prompted Mr Kouwenhoven to launch review proceedings alleging that an appeal under s 310 (1) was impermissible after an extradition enquiry and that in any event, the process followed in preparing the stated case was flawed because he had not been given an opportunity to participate in it.

“The high court had dismissed the review and upheld the DPP's appeal. The SCA today confirmed that decision.“

Further in the judgment, it is concluded that he need not be part of the extradition processes: “It held that properly understood, an extradition enquiry is a criminal proceeding for the purposes of s 310(1) of the Criminal Procedure Act.

“It serves the purpose of enabling errors of law by the magistrate, leading to the discharge of the person whose extradition is requested, to be corrected.

“The process for formulating a stated case is set out in the rules and does not require the input of the person whose extradition is requested.

“On the legal issue, the court held that the relevant provisions of the Extradition Act dealing with extradition require that the crime for which the person is to be, or has been, charged, is one within lawful jurisdiction of the requesting state's courts.

“It is not confined to the territorial jurisdiction of those courts.

“Accordingly, Mr Kouwenhoven could be extradited to the Netherlands to serve his sentence.

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