The High Court of Malawi has set aside the committal order for Shepherd Huxley Bushiri and Mary Bushiri and refused their extradition to South Africa, ruling that the proceedings before the Chief Resident Magistrate were marred by material irregularities and violations of constitutional fair hearing rights.
In a judgment delivered on 12 October 2026, Justice Mzonde Mvula upheld multiple grounds of review filed by the Bushiris, who had been committed to prison on 12 March 2025 to await surrender to South Africa.
“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 court directed. “The conclusion the Magistrate arrived at to extradite, does not follow from the premises extradition is sought.”
The court found that the Magistrate breached the audi alteram partem rule by delivering a final committal ruling after hearing only the Requesting State’s case, without affording the Applicants a structured opportunity to present their side after the prosecution closed.
“The failure by the Magistrate to afford them this opportunity, particularly after electing a hearing-based approach, amounts to a material irregularity,” the judgment states.
The court also held that the Magistrate failed to comply with Section 140 of the Criminal Procedure and Evidence Code, which requires every judgment to contain the points for determination, the decision, and the reasons. It found that the Magistrate addressed only one of eight issues raised and dismissed the rest in a single collective paragraph.
“The ruling on committal by the Magistrate is fatally defective,” Justice Mvula wrote, citing Supreme Court authority in Standard Bank Limited v Tourism Investments Limited and Amos Phiri v Violet Phiri.
On the charge against Mary Bushiri, the court found that the Magistrate committed her on a non-existent offence described as “forgery with regard to immigration laws,” which did not appear in the extradition request. The only forgery allegation concerned a loan agreement and aircraft purchase receipts—a charge the Magistrate had already rejected for lack of sufficient evidence.
For Shepherd Bushiri, the court set aside the committal on three rape charges, finding that the Magistrate failed to identify which of the anonymized complainants A to H were involved, failed to map the charges to the Authority to Proceed, and failed to demonstrate how the evidence met the elements of rape under Section 132 of the Penal Code.
The court further found that the extradition documents were not properly authenticated under Section 13 of the Extradition Act. Justice Elmarie van der Schyff’s certificate authenticated a signature rather than the documents themselves, and she admitted she had only scanned copies, not originals. The court also noted discrepancies between scanned and original versions.
The sole State witness, South African Director of Public Prosecutions Sibongile Mzinyathi, was found not competent to testify on Malawian law requirements under Sections 9(2) and 9(4) of the Extradition Act. He admitted under cross-examination that he did not know what constitutes a “relevant offence” under Malawian law.
The court also ruled that the State witness gave inadmissible hearsay evidence—third-hand accounts from investigators who heard from complainants. Following Namibian authority in Koch v State and the archaic nature of Malawi’s Extradition Act, the court held that hearsay cannot establish a prima facie case for committal.
On the mandatory speciality requirements under Section 6(3) and (4) of the Extradition Act, the court found that the Magistrate identified non-compliance but proceeded to commit anyway, effectively deferring a judicial determination to the executive.
“By proceeding to commit despite her own finding of non-compliance, the Magistrate effectively deferred a core judicial determination to the executive branch,” the judgment states.
The court also found that the passage of time—nearly a decade since the alleged offences—would make surrender unjust or oppressive under Section 10(3)(b) of the Extradition Act. It noted the three-year delay between the alleged events and formal reporting, the further delay until the extradition request in 2020, and the absence of any arrest while First Applicant remained openly in South Africa.
Finally, the court found that the accusations were not made in good faith in the interest of justice under Section 10(3)(c), citing the IPID docket recording extortion allegations against police and the Magistrate’s own finding that withdrawal statements and promised payments “greatly prejudiced the integrity of the State’s case.”
The court left open the possibility that the Respondent may submit a fresh or supplemented request addressing the deficiencies.
“The Magistrate lacked judicial brevity to stand unwaveringly by the course of justice to dismiss the request entirely for reasons tidily explained above,” Justice Mvula concluded. “Dismissing all but three grounds of extradition the Magistrate did, was only a good starting point. We have completed what was omitted to be done.”
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