On February 10, 2021, the South African Supreme Court of Appeal (SCA) issued a ruling denying international businessman Timothy Marsland’s request to be released on bail and his contention that Botswana’s request for extradition had been improperly handled by South African authorities. This final ruling comes at the tail end of an appeals process stretching back to soon after Marsland’s arrest in July 2019.
Marsland’s Arrest and Charges
Timothy Marsland is a businessman with dual citizenship in South Africa and the United Kingdom and residency in Botswana. He was also the founder and director of Capital Management Botswana, an asset management firm entrusted with the finances of several prominent institutions in Botswana, including the Public Officers Pension Fund (POPF) and First National Bank of Botswana (FNB).
On July 12, 2019, after Interpol issued a Red Notice for Marsland’s arrest at Botswana’s urging, Marsland was arrested by South African authorities at Johannesburg’s OR Tambo International Airport, where he had intended to board a Germany-bound flight.
According to Interpol, “A Red Notice is a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action.” These individuals are not wanted by Interpol itself, and the Red Notice is not an arrest warrant; rather, it is a notification by Interpol to all member states that one member state is requesting the detainment of an individual.
Upon receiving a Red Notice, member states are under no obligation to actively pursue the arrest of the person concerned., In this case, a South African magistrate issued a proper arrest warrant for Marsland, allowing for his July 12 apprehension.
In the Red Notice issued for Marsland, Botswana, through Interpol, claimed that the investor had laundered 200,000 pula ($18,400 USD) from the POPF and had attempted fraudulently to obtain 71 million pula ($6.5 million USD) from FNB. Botswana also advanced 28 other criminal charges, almost all related to money laundering, which could result in up to 20 years in prison if Marsland were convicted.
The Extradition and Bail Issues
Since his arrest, Marsland has initiated a series of appeals in South African courts, seeking release on bail and challenging the procedural validity of the extradition process to Botswana.
In August 2019, the month after his arrest, a judge denied Marsland’s initial request to be released on bail. The denial of bail is a common feature in extradition cases where there is a risk of flight by the defendant; in this case, Marsland was arrested at the airport attempting to fly to Germany.
South African prosecutors then requested the opening of an extradition enquiry. In response, Marsland alleged that the South African Minister of Justice Ronald Lamola had not properly received from Botswana or conveyed to Marsland a notice for his extradition. However, the court maintained that the extradition request from Botswana had been properly received by South Africa within the standard of 30 days after the initial arrest, as set by the Southern African Development Community’s (SADC) protocols for extradition.
Ultimately, the appeal made its way to the SCA which issued its ruling on February 10. They denied Marsland’s request for bail due to the risk of flight and confirmed that Botswanan and South African authorities had followed the proper protocols in requesting extradition and receiving that request.
Marsland had argued that the request from Botswana had to be received directly by the South African Minister of Justice Ronald Lamola. However, the SCA concluded that this argument is invalid under Article 6 of the SADC extradition protocols. This statute cites “diplomatic channels” and “ministries” as the appropriate destinations for extradition requests, not any individual minister.
What Comes Next?
Now that the SCA has ruled against Marsland’s procedural objections to the extradition process, the extradition enquiry that South African prosecutors originally requested be opened in August 2019 can formally begin.
It now seems unlikely that Marsland will be able to avoid extradition to Botswana, unless South African officials decide that his case somehow does not merit extradition. South Africa’s push to begin extradition proceedings is a strong indicator that officials see no reason to refuse Botswana’s request at this point.