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1 IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA Case No. CCT 126/11 In the application: EX PARTE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT First Applicant GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA Second Applicant and EMMANUEL TSEBE First Respondent JERRY OFENSE PITSOE (PHALE) Second Respondent SOCIETY FOR THE ABOLITION OF THE DEATH PENALTY Third Respondent THE MINISTER OF HOME AFFAIRS Fourth Respondent THE DIRECTOR GENERAL: DEPARTMENT OF HOME AFFAIRS Fifth Respondent BOSASA (PTY) LIMITED t/a LEADING PROSPECTS Sixth Respondent THE MINISTER OF INTERNATIONAL RELATIONS & CO-OPERATION Seventh Respondent APPLICANTS’ HEADS OF ARGUMENT INTRODUCTION TO WRITTEN ARGUMENT 2 1. There were two matters before the Court a quo (the “Tsebe matter”) and (the “Phale matter”). The applicant’s case was refined and amplified in the latter.1 Certain relevant documents in the Phale matter do not form part of the present record, but ought to be included, namely; annexures “JP1” to “JP7” to the founding affidavit; the answering affidavit of the Minister of Justice as well as the annexures thereto; the confirmatory affidavits of Schutte, Senoge, Leonard SC, Mabaso and Molekoa; the notice of the applicants’ counter application; the answering affidavits on behalf of the Minister of Home Affairs and the Director-General of Home Affairs (“the D-G”) with annexures; Phale’s replying affidavit (including the judgment of Southwood J in the North Gauteng High Court). Relevant paragraphs in the missing record will be quoted, and reference will be made to the “record in the court a quo”. These heads will be amended to provide the correct references as soon as the record has been supplemented in terms of the direction, dated 20 December 2011. 2. The heads are structured according to the above index. In passing, we highlight the sections A, C, E and H. Section “A” will demonstrate, inter alia, that the overall dispute is regulated directly by the provisions of the Constitution. A dispute lies (in domestic law) between the Government of the Republic of South Africa (“the Government” or “national executive”) in the exercise of their collective responsibility, on the one hand, and Phale (and persons in his position)2 on the other. The internal dispute extends beyond the provisions of any individual statute other than the Constitution. Externally, South Africa’s 1 This appears in paragraph 3 of the answering affidavit of the Minister of Justice in the Phale matter. 2 That is, foreign nationals fleeing the justice system and possible capital punishment in their countries of nationality. 3 obligations in international law and its foreign relations are affected. Under “C”, we deal with the immunity from the law obtained by Phale (via the judgment of the court a quo) thereby undermining what this Court and the SADC heads of state have respectively described as “an important requirement for the future of our country and a serious concern for the security of people in the region”. Under “E”, we deal with the general contentions made by the Government before the court a quo (as opposed to those considered in the judgment). Under “H”, we set out specific allegations made by the Minister of Justice in his answering affidavits which the court a quo appears to have overlooked. A. CONTEXT AND BACKGROUND 3. This application for leave to appeal concerns the power of the South African state to hand over two foreign nationals (Tsebe and Phale) to the authorities of Botswana, for purposes of trial and possible capital punishment under the law and constitution of Botswana. They both entered South Africa unlawfully in order to evade arrest on charges of murdering their female partners. The alleged offences were perpetrated against nationals of Botswana and took place within the territorial jurisdiction of that state. 4. The court a quo held that the decision of this court in Mohamed and Another v President of the RSA and Others 2001 (3) SA 893 (“the Mohamed judgment”) bound South African authorities not to hand over (“surrender”) Tsebe and Phale unless certain assurances that were raised in Mohamed‟s case had been obtained in advance. In the absence of 4 such prior assurances, surrender would be unlawful and unconstitutional in that the rights of Tsebe and Phale would be intruded upon without justification. The rights of Tsebe and Phale, “by virtue of them being humans within South Africa, would be removed and replaced with rights afforded to persons in Botswana, which do not include the right not to be put to death by the execution should they be convicted”. 3 5. The assurance that had been raised in argument contained two parts; firstly, that he “would not be sentenced to death; alternatively, if so sentenced, (he) would not be executed”. Without such an assurance “a deportation” or “extradition would (have been) unconstitutional”.4 This Court appears to have reached its conclusion on the basis of the causal connection between the handing over of Mohamed without an assurance against imposition of the death penalty, and the threat of its imposition at the trial which he was undergoing during the hearing before this Court.5 The fact that Mohamed was facing the death penalty, was a direct result of the failure of South African authorities to obtain an assurance that was likely to have been given.6 6. The Court concluded, in paragraph [42] of the judgment, that deportation is usually a unilateral act while extradition is consensual; the different procedures prescribed for deportation and extradition may be material in specific cases (particularly where the 3 See judgment: Vol 9, paras 98 to 101, p 729; and see Kindler v Canada 1992 6 CRR (2d) 193. Compare United States v Burns [2001] 1 SCR 283, 360; in which the Supreme Court of Canada amended a prior procedure (applied in Kindler) where the rule of non enquiry to extradition requests had been applied and the courts had deferred to the Canadian Minister of Justice. In Burns the Supreme Court held that the Minister of Justice could not extradite individuals to the US without assurances that the death penalty would not be imposed. 4 See Mohamed judgment: para 47, p 913 F-G. 5 See Mohamed judgment: para 53, p 915 C/D to E/F. 6 See Mohamed judgment: paras 48 and 53. 5 legality of the expulsion is challenged) but they were not relevant in the circumstances of that case; an obligation rests on the South African government to secure an assurance that the death penalty will not be imposed on a person whom it causes to be removed from South Africa to another country; that this cannot depend on whether the removal is by extradition or deportation. It depends on the facts of the particular case and the provisions of the Constitution; and not on the provisions of the empowering legislation or extradition treaty under which the deportation or extradition is carried out.7 7. In both the Tsebe and Phale applications the Government of the Republic of South Africa, “which is responsible for all spheres of national government” had been cited as a respondent. So too were the Ministers of Home Affairs, Justice and Constitutional Development, and International Relations and Co-operation. The first, is responsible for the administration of the Immigration Act 13 of 2002 as amended (“the Immigration Act”) and the actions of the Department of Home Affairs; the second for the administration of the Extradition Act 67 of 1962 (“the Extradition Act”) and the actions of the Department of Justice and Constitutional Development; and the third, for the actions of the Department of International Relations and Co-operation. All three ministers were cited in their capacities as representatives of “the Government”, which this Court, in Mohamed, had held responsible for obtaining an assurance. 7 The (diplomatic) assurance required by the court was to the effect “that the death penalty will not be imposed on a person whom it causes to be removed to another country”. 6 8. The assurance described in paragraph [42] of the Mohamed judgment required an exercise of international diplomacy and foreign relations. Neither the assurance nor this exercise are referred to in any way by the provisions of the Extradition Act or the Immigration Act. An assurance constituted a means of avoiding execution as a consequence of surrender. The (diplomatic) assurance required by this Court was to the effect “that the death penalty will not be imposed on a person whom it causes to be removed to another country”. Had the South African authorities sought an assurance from the United States against the death sentence being imposed on Mohamed, before handing him over to the FBI, there was no reason to believe that such an assurance would not have been given.8 9. At the material times both Tsebe and Phale were nationals of Botswana,9 and fugitives from justice within the territorial boundary of South Africa. Warrants for their arrest on murder charges had been issued by authorities in Botswana.10 The death sentence would have been a competent sentence upon their conviction in Botswana. In terms of s 21(3) of the Constitution “every citizen has the right to enter or remain in the Republic”. Tsebe and Phale had no such right. 10. Their entry to and departure from South Africa was the responsibility of the Department of Home Affairs. The procuring of valid warrants for their arrest and detention, their 8 See Mohamed judgment: para 53, p 915 C/D to E/F. 9 See infra. 10 The warrant for Tsebe dated 30 July 2008, appears in Vol 3, p 228 as annexure “JTR1” to the answering affidavit of the Minister of Justice.

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