ConCourt orders Cholota to stand trial, refuses NPA appeal in Schultz

The Constitutional Court has refused the National Prosecuting Authority condonation for a late appeal and ordered that Ms Nomalanga Moroadi Selina Cholota stand trial in the Bloemfontein High Court, after finding that an extradition request issued by the wrong state functionary does not by itself deprive a South African court of criminal jurisdiction.

The unanimous judgment, handed down on 23 January 2026 and authored by Justice Theron, was delivered in two applications heard together. The first, CCT 280/24, was the Schultz matter. The second, CCT 190/25, was the Cholota matter. The court’s media summary describes the note as an explanatory document for the media and not binding on the court.

What the court found in Cholota

Ms Cholota was extradited from the United States in 2024 following a request made by a Director of Public Prosecutions. In her criminal trial in the Bloemfontein High Court she raised a special plea challenging the court’s jurisdiction, arguing that her extradition was unlawful. A trial-within-a-trial followed.

During her closing address, her counsel produced the Supreme Court of Appeal’s judgment in Schultz and argued for the first time that her extradition had been made by the incorrect state functionary. The Bloemfontein High Court found itself bound by that judgment and held that it had no criminal jurisdiction over her.

The Constitutional Court found that the state’s right to be heard was infringed in the trial-within-a-trial, because the new ground was raised only during closing argument, depriving the state of the chance to respond. That, the court held, violated section 106(3) of the Criminal Procedure Act, and the High Court erred in dismissing the state’s objection.

On the question of who may make an outgoing extradition request, the court held that the final authority does not form part of the prosecuting authority’s implied powers. The international stage of an extradition request involves acts of external sovereignty and sensitive diplomatic considerations that fall within the domain of the national Executive. Prosecutorial independence, the court said, does not license the NPA to exercise powers beyond its authority, and as a domestic state organ it cannot represent South Africa at state-to-state level.

The Executive, the court found, cannot act as a mere conduit. It must apply its mind to the request and exercise a discretion. The Supreme Court of Appeal went too far, however, in concluding that only the Minister of Justice may make such requests. That power rests with the national Executive broadly.

Why the trial can go ahead

The Director of Public Prosecutions had argued that because Ms Cholota was extradited under an unchallenged United States court order, South African courts could not question the extradition. The court rejected that argument. Ms Cholota challenged the conduct of South African officials, not American ones, and South African courts may examine whether public power was lawfully exercised.

The High Court had relied on S v Ebrahim for the principle that unlawful conduct by South African functionaries in foreign territory precludes a local court from trying an accused. The court affirmed that the Ebrahim principle remains an important feature of South African law and that procedural fairness in criminal cases must be guarded. But it held that not every irregularity, however insignificant, should strip a court of jurisdiction. A court loses jurisdiction only where exercising it would bring the administration of justice into disrepute.

The court found the NPA acted under a bona fide assumption that it had the authority to request the extradition, and that it only had to confront the question after the Schultz judgment. There was no suggestion that the extradition would not have been requested correctly had the Executive and the NPA known the correct legal position. The Bloemfontein High Court therefore erred in declining jurisdiction on that sole basis, and the appeal succeeded.

The late appeal that failed

In the Schultz matter, the applicants sought condonation for filing their application for leave to appeal roughly three months after the 15-day deadline in the court’s rules had lapsed. The court held that condonation is not there for the taking and that it has refused condonation for shorter delays.

The explanation offered, that the applicants believed the Department of Justice and Constitutional Development would launch an appeal and that they struggled to brief counsel under the State Attorney’s briefing policy, was not satisfactory. A litigant cannot escape the obligation to comply with the rules on the mere allegation that another cited party would appeal.

The applicants had abandoned their appeal on the merits and sought only to limit the retrospective effect of the Supreme Court of Appeal’s judgment, warning of catastrophic consequences for the administration of justice. The court found that harm largely, if not completely, ameliorated by its own finding that a court ought not to decline jurisdiction solely because an extradition request was authorised by the NPA rather than the Executive. Condonation was refused and the application for leave to appeal failed on that basis.

What it means

For accused persons whose extraditions were requested by the NPA rather than the Executive, the judgment removes the argument that the request alone ends the prosecution. For the NPA, it confirms that the domestic work of preparing an extradition stays with it, while the decision to transmit a request to a foreign state belongs to the Executive. The practical effect is that Ms Cholota’s trial proceeds, and the state’s case against her is heard on its merits.

The judgment is reported at https://www.concourt.org.za/index.php/judgement/626-a-director-of-public-prosecutions-johannesburg-and-another-v-jonathan-schultz-and-others-cct-280-24-b-director-of-public-prosecutions-bloemfontein-v-nomalanga-moroadi-selina-cholota-cct-190-25.