Bushiri & Bushiri v Republic of South Africa (Criminal Review Case 5 of 2025) [2025] MWHCCrim 1 (31 October 2025)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI LILONGWE CRIMINAL DIVISION REGISTRY CRIMINAL REVIEW NO 5 OF 2025 (Being Criminal Extradition Case No. 1137 of 2020 at CRM Court in Lilongwe) SHEPHERD HUXLEY BUSHIRI…………………………………………….1ST APPLICANT BETWEEN MARY BUSHIRI…………………………………………………………………2ND APPLICANT AND REPUBLIC OF SOUTH AFRICA………………………………………………RESPONDENT CORAM: HONOURABLE JUSTICE MZONDE MVULA. Kita/Katundu: Of Counsel for the Applicants Malunda: Director of Criminal Litigation for the Respondent Khonje: Court Clerk and Official Interpreter. SUMMARY ORDER ON REVIEW (Made under Section 10(1) of Extradition Act) Mvula, J. 1.0 Introduction 1.1 On 12 March 2025, the Chief Resident Magistrate delivered a ruling in respect of the extradition request made by the Government of the Republic of South Africa concerning Shepherd Huxley Bushiri and Mary Bushiri, hereinafter called applicants. In that ruling, the learned Magistrate ordered the committal of the Sheperd Huxley Bushiri & Mary Bushiri v Republic of South Africa. Page 1 applicants to prison to await their surrender to the Republic of South Africa, where they are to stand trial for various offences alleged against them. 1.2 Pursuant to Section 10(1) of the Extradition Act, applicants sought a review of that decision before the High Court. In exercise of this statutory right, the applicants duly filed their grounds for review on 15 April 2025, in accordance with the directions issued by this Court. A detailed finding by the High Court over the 14 grounds raised by the applicants in 59 pages, and the respective responses to these grounds by Respondent covering 80 pages, will be made available after completion of edit of such landmark decision in the jurisdiction. This is merely a summary by the High Court in exercise of powers of this review. 3.0 Jurisdiction of the High Court in review proceedings 3.1 The High Court exercises supervisory authority, under section 26 of the Courts Act over decisions of a Magistrate. The ambit of this authority read as follows: “(1) In addition to the powers conferred upon the High Court by this or any other Act, the High Court shall have general supervisory and revisionary jurisdiction over all subordinate courts and may in particular, but without prejudice to the generality of the foregoing provision, if it appears desirable in the interests of justice, either of its own or at the instance of a party or person interested at any stage in any matter or proceeding, whether civil or criminal, in any subordinate court, call for the record thereof and may remove the same into the High Court or may give such subordinate court such directions as to further conduct of the same as justice may require. (2) Upon the High Court calling for any record under subsection (1) the matter or proceeding in question shall be stayed in the subordinate court pending the further order of the High Court” [Emphasis supplied]. 3.2 Against the foregoing, where there is a perceived error of law or procedure, the High Court, (i) either of its own motion, or (ii) at the instance of a party affected by a decision of the Magistrate, may call for such record to examine such irregularity. The High Court ultimately issues directions after such review, regarding further conduct of the matter, if at all. Sheperd Huxley Bushiri & Mary Bushiri v Republic of South Africa. Page 2 3.3 Be it in meri motu, or at the initiation of a party to the case, the High Court exercises the same powers that are conferred upon it on appeal by Sections 353(2)(a), (b) and (c) and 356 of the Criminal Procedure and Evidence Code (the Code). That is how the present review operates as an appeal, conducted in the fashion of chamber matter. Looking at the public interest in this issue, a hybrid approach was proffered in this regard. 4.0 General summary of finding from the issues raised during review. 4.1 Applicants were denied the right to be heard, in breach of the principle of audi alteram partem. Section 42(2)(f)(iv) of the Constitution, Section 268 of the Code, and Section 9(4) of the Extradition Act extrapolate the fundamental principle to such process. 4.2 The Magistrate delivered a ruling after hearing only the case of the Respondent. Even in extradition proceedings, where “hearing is opted”, then both sides to the case ought to be heard. Much as hearing here does not take form of trial, but inquiry, applicants should have been invited to explain themselves. In some regard, present evidence, or even respond to the charges. This holds because the court took the hearing approach to grant the extradition request. Much as a hearing may not be necessary in deserving cases, the allegation must be explained at the inquiry. Since the Magistrate took hearing approach, no charge was read to the applicants; no explanation of their rights was given, condemning them as if they have no voice to the allegations against them. 4.3 No reasoned reasoning was made by the Magistrate. In a matter where a judicial pronouncement ought to be made, reasons at law must be advanced, as required by Section 140 of the Code. Only one out of eight issues under consideration was properly analyzed. The remaining legal objections were lumped together and dismissed without individual assessment, as is expected at that level. There ought to have been engagement with specific grounds which the applicants raised in cross examination, such as hearsay, authentication, or evidentiary sufficiency, procedural fairness and right to life. These go to the heart of the challenge to this technical withdrawal, back to Malawi. Sheperd Huxley Bushiri & Mary Bushiri v Republic of South Africa. Page 3 4.4 Improper authentication of extradition documents, violates Section 13 of the Extradition Act. Reliance on such documents in their current form, opens a can of worms, speculating over what evidence applicants will face. The scanned documents shown to Justice Schyff for authentication were not identical to the originals, neither were stamps, initials, redactions, and final lines which differed materially to the actual. What is more, Justice Schyff confirmed she never saw the originals, only scanned copies. The law requires authentication by a judge or official of the requesting state, which never happened in the extradition request of the present applicants. 4.5 Over reliance on hearsay evidence by the witness from Republic of South Africa, is inadmissible in Malawian extradition proceedings. Going by the court record of the Magistrate maintained, the witness admitted under cross- examination that he relied on investigators, who themselves relied on complainants. No direct evidence from complainants or investigators was presented to ground this request to extradite. This is a dangerous trajectory, and is to say the least, clutching at straws. Under equality principle, applicants were not allowed to give their part of “hearsay evidence”. Equality before the law is paramount and cardinal principle of law. The court must be the independent and impartial including receipt of evidence in extradition hearings. Section 9(4) requires admissible, reliable evidence, not summaries of allegations to be used. 4.6 No competent witness testified on key legal questions. It was expected that this witness had to be familiar with Malawian legal standards. Advocate Mzinyathi from Directorate of Public Prosecutions for Gauteng province, conceded to having had no knowledge of legal definitions or evidentiary thresholds from the legal system of Malawi. Relevance and reciprocity principles call the shots under such hearings. Without such principles strictly adhered to, the Court could not procedurally conclude that the offences the applicants are accused of in the requesting state, are “relevant” or triable in Malawi. This is a mismatch. Sheperd Huxley Bushiri & Mary Bushiri v Republic of South Africa. Page 4 4.7 The Magistrate committed Mary Bushiri on a charge of “immigration- related forgery” that was never proffered. This Court soured through the loads and loads of paperwork available. It would take a sojourn to come up with a ruling going by the volume of paperwork to be processed. The committal on immigration related forgery does not appear in the extradition docket. Let it be added that the Magistrate had no authority to invent or expand charges beyond what was formally submitted to move host country over an extradition hearing. 4.8 The finding that there was sufficient evidence on 3 rape counts lacks legal basis. The Authority to Proceed (ATP) only listed 3 counts. However, the Court did not identify which 3 remained out of the set, to meaningfully inquire from the facts, whether they matched the ATP. The High Court notes that complainants were anonymized (A to H). There was no mapping between them and the warrants. Going further, the Magistrate failed to analyze whether or not the statements supported the legal definition of rape under Malawian law. 4.9 No correspondence between the 3 rape warrants and the 3 remaining charges. The Respondent did not make a clear link between the warrant on the one hand and the corresponding extradition record on the other. The ruling by the Magistrate did not explain this nexus, which feeds into Section 42(2)(f)(ii) of the Constitution of Malawi. The one alleging should be clear and precise so that the party called upon to answer is not embarrassed with an explanation, hoping to catch them off guard. The Republic conveniently attempted to slot in the details to fix this gap retrospectively, which is improper in review proceedings, and indeed in criminal proceedings in Malawi. 4.10 No sufficient evidence existent to sustain a forgery charge relating to the aircraft loan agreements. The Magistrate gave no analysis of how the forgery occurred, what was falsified, and what document told a lie about itself, required under Malawi law on forgery. It was simply concluded in one sentence. The key witness here, Mr. Kruger, is deceased. No one else could authenticate the documents. There was no attempt to “search evidence in vein” to cover this lid which without it, would not lead to the finding as arrived by the Magistrate. Sheperd Huxley Bushiri & Mary Bushiri v Republic of South Africa. Page 5 Simply put, the conclusion does not logically follow from the premises. No direct link was drawn between the 1st applicant and the allegedly forged documents to validly constitute a grounded extradition request on it. 4.11 Incongruence in finding. The Magistrate acknowledged that Respondent had not complied with Section 6(3) and (4) of the Extradition Act. Interestingly, the Magistrate still proceeded to grant a committal in the circumstances. The decision does not naturally follow from the premises. It therefore is inaccurate, and procedurally improper, to sustain the finding made in the circumstances. The required guarantees on specialty were not shown in the final order of committal. This is occasioned failure of procedure. Once this failure was discovered, the law mandated a finding against the requesting State as operational under section 188(1)(b) of the Code. The only decision to make when that occurs is a refusal to commit, not a referral to the Minister to extradite. 4.12 The request is tainted by bad faith, political motivation, and oppressive delay without protecting their right to life after a bomb attempt which blew up car for applicants but missed their lives. Statute of limitation does not operate in criminal proceedings. So long integrity of evidence is preserved, a criminal case may proceed later than normal. In this regard, other procedural safeguards to such as time within which to commence a criminal matter, are observed. Looking at the basis of the request to extradite, the offences date back to 2015. There was five years gap in between. No account occurs why the commencement only in 2020. Little wonder any reasonable bystander may infer that the same is tainted with bad breath, and a commencement of action in mala fide. It is an open secret that applicants lived openly in South Africa. They were never arrested whatsoever until the present. The cross examination line before the Magistrate, all too likely flags their valid concern that they suffer racial and xenophobic bias, public hostility, media persecution. Simply, lives matter over these allegations. Mercedez Benz E 200 for applicants blew up in a bomb attack. Applicants had just alighted. None of these legitimate concerns were addressed by Respondent. The latter is just focused at securing their presence at all costs in South Africa, without guaranteeing their safety there. Sheperd Huxley Bushiri & Mary Bushiri v Republic of South Africa. Page 6 5.0 Exposition 5.1 The High Court under section 26 of the Court Act finds that the Magistrate did not exercise judicial discretion correctly by making a finding for extradition, when the evidence on the extradition hearing fell short to make this finding. 5.2 The Magistrate omitted to make an important finding preserving the lives of the applicants. The right to life is more paramount than availability to face trial. 5.3 The Magistrate did not balance the plight of applicants who time and again fell victim of extortion by Police of Gauteng Province who persisted in serious threats of intimidation and kidnapping, than face charges in point to play along. 5.4 All in all, the “hearing” was one sided. Applicants were never given opportunity to present their side of the story. Even a person under arrest before trial is asked on any allegations pending. No less standard falls on a person challenging extradition proceedings against xenophobic, extortionist, and such a biased criminal process. Some complainants of rape allegations, withdrew while some despite coming from other Provinces all registered “complaints” before the same Police Region promising them a reward if they testified against first applicant. Conclusion 5.5 Under section 353(2)(a)(ii) of the Code the High Court sets aside the committal order of 12th March 2025, made by the Magistrate extraditing Shepherd Huxley Bushiri and Mary Bushiri to the Respondent. The conclusion the Magistrate arrived at to extradite, does not follow from the premises extradition is sought. 5.6 The Magistrate lacked brevity to stand by the course of justice to dismiss the request entirely for reasons explained above. Dismissing all but three grounds was only a good starting point. We have completed what was omitted to be done. 5.7 Per curium Made in Court this 31st October 2025 JUDGE. 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