The stakes were raised for the Hawks and their US Secret Service counterparts after the Cape Town magistrate's court decided that the state would bear the responsibility of proving that it is in the interest of justice for the eight alleged members of the Black Axe crime syndicate not to be released on bail.
The National Prosecuting Authority said on Thursday that most of the accused Nigerians are in SA illegally.
National Prosecuting Authority spokesperson Eric Ntabazalila said the men were a flight risk and would tamper with evidence electronically if they were released on bail. He said most of the men’s passports had expired and were never renewed, and that they still had access to bank accounts with funding which they could use to flee the country.
After a lengthy argument between the state and lawyers for the accused about the severity of the schedule under which the men were going to be charged, magistrate Ronel Oliver ruled that the men would not face any schedule as the specific section in the Criminal Procedure Act dealing with the severity of the schedules of offences was not applicable in bail pending extradition hearings.
Her decision appeared to contradict case law which she quoted from a Western Cape High Court ruling on an appeal brought by British paedophile Lee Nigel Tucker in 2018.
Defence advocate Ben Prinsloo argued that his clients, consisting of the Black Axe Cape Town zone leadership and two other alleged Black Axe members, are not accused under South African law — only under US law. The US state attorney brought the extradition application against the men for them to be tried in the US for romance scams to the tune of R100m.
The alleged Black Axe leaders are:
- Perry Osagiede, 52, the alleged founder of the organisation's Cape Town zone;
- Enorense Izevbigie, 45, the group’s alleged current leader;
- Franklyn Edosa Osagiede, 37;
- Osariemen Eric Clement, 35;
- Collins Owhofasa Otughwor, 37; and
- Musa Mudashiru, 33.
Toritseju Gabriel Otubu, 41, and Prince Ibeh — also Nigerians linked to the syndicate but who are not part of the leadership — were also arrested in raids on nine Cape Town addresses last week.
Prinsloo argued that the US charges brought against the men, namely wire fraud conspiracy, wire fraud, money laundering conspiracy, and aggravated identity theft, were not equitable to what the state claimed were similar crimes under South African law, including fraud and conspiracy to commit fraud, and money laundering.
His argument was an attempt to downgrade the charges from schedule 5 offences for crimes such as fraud and money laundering, to a schedule 1 offence, conspiracy.
State prosecutor Robin Lewis argued that though in name the US and SA laws were different in substance they were a mirror image of each other.
Oliver appeared to sway in favour of the state when she quoted the High Court judgment in the Tucker bail-pending-extradition case which said that the Criminal Procedure Act of 1977 was applicable for such cases and that applicants in such cases were in fact accused according to South African law.
However, at the end of her ruling she swayed to the defence’s argument which said that the Extradition Act of 1962, which was written long before the Criminal Procedure Act, has no schedule for the severity of charges and that the onus was only on the applicants in such cases if they were accused in another country of having committed serious crimes such as murder.
“This application will proceed as an unscheduled application. In a nutshell, the state carries the onus to prove that it is in the interest of justice for the accused not to be released on bail,” she said.
The bail application was postponed until November 8 and 11.