<i>Malone</i> v. <i>Government of the United Kingdom of Great Britain and Northern Ireland and Another</i> (2024) and State Immunity in South Africa in Extradition Proceedings: Interpreting the Foreign States Immunities Act in Light of Its Drafting H

Abstract The Foreign States Immunities Act (the Act) provides for circumstances in which a state enjoys jurisdictional immunity for any act or omission that takes place in South Africa (sovereign acts under section 2) and for circumstances in which it loses that immunity (private/commercial acts under sections 4, 5, and 6). The Constitutional Court held that extradition is a sovereign act. Thus, the requesting state enjoys jurisdictional immunity. In Malone v. UK and Another, the United Kingdom requested South Africa to arrest and detain the applicant pending his extradition and to oppose his bail application. He spent several days in detention before the United Kingdom withdrew the extradition request. He argued that the United Kingdom was responsible for the violation of his rights. The United Kingdom argued that extradition was a sovereign act and the court did not have jurisdiction over the matter. Although the High Court recognized that extradition is a sovereign act, it invoked section 6 of the Act and held that the United Kingdom was liable for the violation of the applicant’s rights. It is argued that the Court’s reliance on section 6 is contrary to the drafting history of the Act and potentially to the jurisprudence of the International Court of Justice.