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. The warrant for Phale, dated during October 2009 appears at p 270 of the record in the court a quo as part of Annexure “JTR4”. 7

actual physical detention and any subsequent prosecution for illegal entry were the

responsibility of the Departments of Home Affairs, Safety and Security (SAPS),

Correctional Services and Justice. The requests for their extradition were directed via the

Department of International Relations. The decision whether or not to extradite them

remained vested in the Minister of Justice.

11. Definition of the crime of murder alleged against them, its prosecution and punishment,

are governed by the Constitution and law of Botswana.11

12. Murder is an extraditable offence in terms of the relevant extradition treaty which exists

between the Republics of Botswana and South Africa,12 and in terms whereof the

extradition of Tsebe and Phale was requested. Article 6 thereof provides that

“Extradition may be refused if under the law of the requesting Party the offence for which

extradition is requested is punishable by death and if the death penalty is not provided for

such offence by the law of the requested Party.” This treaty makes no provision for

either a request for or provision of the undertaking required in Mohamed‟s case.

13. Nevertheless, on 11 November 2008, on the advice of the Chief Directorate International

Directions13, the Minister of Justice at that time (Mr M.E. Surty) directed a request to the

11 Section 203 contained in Division IV of the Botswana Penal Code provides for punishment of murder as follows: “(1) Subject to the provisions of subsection (2), any person convicted of murder shall be sentenced to death. (2) Where a court in convicting a person of murder is of the opinion that there are extenuating circumstances, the court may impose any sentence other than death, (3) In deciding whether or not there are any extenuating circumstances the court shall take into consideration the standards of behaviour of any ordinary person of the class of the community to which the convicted person belongs.” 12 The Treaty, which was concluded during 1969, appears in Vol 3, p 229 to 238. 13 See annexure “JTR6”: Vol 4, p 325-336. 8

Botswana’s Minister of Defence, Justice and Security (Mr D Seretse) requesting a

diplomatic assurance which “should state that the Prosecution will not seek the death

penalty and, if it is imposed, it will not be executed.”14 In the absence of such an

undertaking, so Mr Surty asserted, he could not order the surrender of Mr Tsebe to

Botswana should a magistrate find “Mr Tsebe extraditable”. On 20 May 2009, Minister

Seretse informed the current Minister of Justice that his Department had “been informed

on a number of occasions that the Cabinet of Botswana has decided that no such

undertaking shall be made, as there is no provision in our laws or the treaty between the

two countries to that effect”.15 The terms of the aforementioned extradition treaty, the

independence of Botswana’s judiciary and the provisions of sections 51A(3) and 51A(6)

of its Constitution appear to support the contentions made by Minister Seretse.16

14. Despite exchanges of correspondence between the respective ministries and a meeting

between the Ministers in Pretoria, on 14 July 2009, Botswana did not provide the

diplomatic assurance requested. Minister Seretse was therefore informed that Tsebe

could not be surrendered. He would be released, and his position as an “illegal

immigrant” would then be considered.17 On 25 August 2009, the Minister of Justice

14 See annexure “JTR7”: Vol 4, p 337-338. 15 See annexure “JTR9”: Vol 5, p 388-389. 16 The relevant parts of these sections provide as follows:- “51A. Director of Public Prosecutions (1)… (3) The Director of Public Prosecutions shall have power in any case in which he or she considers it desirable to do so- (a) to institute and undertake criminal proceedings against any person before any court (other than a court martial) in respect of any offence alleged to have been committed by that person; (6) In the exercise of the functions vested in him or her by subsection (3) of this section the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority:” 17 See annexure “JTR11”: Vol 5, p 403. 9

made an order, in terms of s 11(b) of the Extradition Act, that Tsebe would not be

surrendered.18

15. The Minister acted on legal advice to the effect that, by virtue of the aforementioned

provisions of the Penal Code, (read with the judgment of this court in Mohamed) the

surrender of Tsebe to Botswana would have been unlawful (i.e. no prior undertaking had

been provided by the Botswana Government “that the death sentence would not be

imposed on the Applicant or, if imposed, would not be executed”.19) For reasons set out

further below, this advice may have been incorrect. The Minister made the order without

reference to the factual circumstances of Tsebe’s case, other than the charge, the Penal

Code and formal compliance by Botswana with certain treaty provisions. The Minister

neither investigated nor considered whether a decision to extradite Tsebe, in the

absence of an undertaking, would have created a genuine risk to him of a death

sentence being imposed and executed after his extradition.20

16. The Minister alleges that foreign policy, the security and well being of the people of South

Africa, and the interests of justice were all attenuated to eliminate a risk to Tsebe that

may have been more apparent than real.21 The Minister’s decision affected international

relations between Republics of South Africa and Botswana as well as the administration

of justice in both countries. It compromised the duty resting upon the governments of

18 The order appears in Vol 1, p 36. 19 See the Minister’s answering affidavit: Vol 3, para 6, p 160-161. 20 Vol 3, paras 7 and 8, p 161. 21 Vol 3, para 21, p 165-166. 10

both states to protect their citizens.22 It also compromised the implementation of law in

South Africa for which the Minister of Home Affairs is responsible, under the Immigration

Act,23 inter alia; s 29(1) and s 34(1).24

17. On 22 December 2009,25 the Minister of Home Affairs agreed that Tsebe should be

deported and that “the engagement should take place after deportation”. It was

suggested that (on behalf of South Africa) the Minister of Justice would engage the

Botswana authorities.26 However, on 19 August 2010 Victor J interdicted the Home

Affairs respondents from surrendering Tsebe to Botswana, pending the finalisation of an

application to be launched before the court a quo.27 In his answering affidavit the

Director-General of Home Affairs alleged that deportation of Tsebe would only have

taken place after Tsebe had been identified, through diplomatic or consular offices of

Botswana, and the latter had indicated that they would accept his return.28

22 See para 9, p 162 and para 22, p 166. 23 See para 9, p 162. 24 The first provides that anyone against whom a warrant is outstanding in a foreign country in respect of murder is a prohibited person and does not qualify for a visa, admission into the Republic, a temporary or permanent resident’s permit. (See s 29(1) of the Immigration Act.) The second provides that an immigration officer, shall irrespective of whether (an illegal) foreigner is arrested, deport him or her or cause him or her to be deported; and may, pending his or her deportation, detain him or her or cause him or her to be detained in a manner and at a place determined by the Director-General subject to the further conditions obtained in this section. (See answering affidavit of Mkuseli Apeleni: Vol 6, paras 10 and 11, p 446.) [Counsels’ underlining.] 25 As appears from the memorandum to the Minister of Home Affairs (Annexure “ET 17” to Tsebe’s supplementary affidavit in terms of Rule 53(4)). See Vol 2, p 103-109 at 109. 26 See too the answering affidavit of the Director-General, Vol 6, paras 35 and 36, p 452. 27 See founding affidavit: Vol 1, para 73 at p 24 and the order, annexure “ET6” at p 47. 28 See Vol 6, para 81.3, p 465. The system of immigration control which the Immigration Act sets in place is expressly aimed, inter alia, at ensuring that security considerations are fully satisfied by the admission of foreigners to South Africa; at interdepartmental coordination and public consultations which enrich the functions of immigration control; and also at ensuring that the role of the Republic in the continent and region is recognised and that the international obligations of the Republic are complied with. 11

18. Meanwhile, during October 2009, Phale fled to South Africa after the police had

attempted to arrest him for murder in Botswana.29 (The Home Affairs has also been

advised by Botswana’s Government that at least five other fugitives from justice have fled

to South Africa.30) Botswana made an application for the extradition of Phale on 21

December 2009.31 The NPA was set in motion on the following day.32 The prosecutor,

Advocate Senoge, was later informed by the DPP in Botswana that no undertaking from

the President of Botswana would be forthcoming. Senoge then elected not to proceed

with an inquiry before the Magistrate in terms of 10(1) of the Extradition Act.33

19. At that stage the Minister of Justice had not yet been informed of the application for the

extradition of Phale. The Minister never precipitated an inquiry, by informing the

Magistrate of a request in terms of s 5(1)(a) of the Extradition Act.34 He neither requested

a diplomatic undertaking from Botswana nor received one.35 An inquiry pursuant to the

provisions of s 9 and 10 of the Extradition Act was never held.36 However, the charge of

murder against Phale had not been withdrawn in Botswana. The state to state request

for his extradition remained extant.37

20. Because of the Minister’s decision in Tsebe, Senoge caused Phale’s case to be removed

from the roll. Phale was released in order to prevent him from applying for asylum

29 See Phale’s founding affidavit: Vol 7, para 24, p 590. 30 See Vol 10, the founding affidavit for leave to appeal deposed to by Modiri Matthews: para 53 at p767. 31 See annexure “JTR6” to the answering affidavit of the Minister of Justice Phale court a quo record p 324-336. 32 See answering affidavit: para 17, p 198 of the court a quo record. 33 See Minister’s answering affidavit: paras 16.11(c) and 17 at p 198 and para 33 at p 204. 34 See answering affidavit: para 26 at p 202. 35 See answering affidavit: para 32 at p 204. 36 See answering affidavit: para 36 at p 205. 37 See answering affidavit: para 35 at p 204. 12

(immunity from prosecution and permanent residence in South Africa) by relying on an

order of non-extradition as motivation.38 The concern of the senior official in the South

African DPP, Leonard SC, was that deportation might be raised as “disguised extradition”

if the procedure followed in Tsebe was repeated. On 20 May 2011, Southwood J (in the

NGHC), ordered the release of Phale upon payment of bail and interdicted the Home

Affairs respondents and SAPS from re-arresting Phale because he is an “illegal

foreigner”, or on other charges relating to his pending criminal proceeding in the

Rustenburg Magistrates’ Court. That Court had already granted him bail “subject to strict

reporting conditions” on 4 April 201139.

B. SUMMARY OF ARGUMENT OF GOVERNMENT

21. Extradition is an act of state. It is a constitutional function of the executive branch of

government (“the Government”), acting under collective Cabinet responsibility. The

function cannot validly be interdicted in advance by the judicial branch of government, as

the court a quo has done in the case of Phale.40 The Government must be afforded an

opportunity to exercise this function, using all the powers of the state which are available

in its international relations with Botswana.

22. Upon a proper construction of the Mohamed judgment, in exercising its power to

surrender a person (whether by extradition or deportation) Government has to comply

38 See answering affidavit of the Minister in relation to the report of the Deputy Director of Public Prosecutions, para 103.2 to 103.5 at p 237-239; and annexure “JTR10” at p 390-391. 39 This Judgment appears at p 540 to 560 of the record in the court a quo. 40 Legislation inconsistent with what the Constitution requires in this regard is invalid. See SA Association of Personal Injury Lawyers v Heath and Others 2001 (1) SA 83 para 22 at 896E-897B/C: Akani Garden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd 2001 (4) SA 501 (SCA) para 3 at 507A-B/C. 13

with the provisions of the Constitution as a whole; and this duty is dependent upon the

facts of the particular case.

23. Provisions of the Constitution impose duties and ultimate responsibility on the state to

render all people in our country free from violence from private sources and to provide

appropriate protection to everyone’s right to life, dignity and security.41 The Government

has a duty to allow South Africans to be free from fear and its inhabitants to be secure. A

material feature of this case is that the claim raised by Tsebe and Phale before the court

a quo, and the outcome obtained there, have created a situation in which fugitives from

serious charges of violence in their countries of nationality, can obtain residence in South

Africa, immunity from prosecution and relative freedom. Our Constitution requires them

to face justice and the state to exercise its aforementioned duties.

24. South African courts do not have jurisdiction to try them for the offences they are alleged

to have committed in Botswana. Practical considerations, policy and resource

prioritisation militate against prosecuting persons in their position in South Africa, or

incarcerating them on alternative charges on a long term basis. As a matter of policy the

Government would seek to return such persons to Botswana to stand trial for murder

there.

25. The approach laid down in Makwanyane‟s case and followed in Mohamed‟s case

involves the balancing of rights. In the balance of rights between “all people” in South

41 Inter alia, in exercising governmental functions described in various provisions of the Constitution which regulate the provision of security. 14

Africa and foreign fugitives escaping justice for violent crime allegedly committed in their

countries of nationality, the balance must favour the interests of the inhabitants of South

Africa.

26. It is possible for the Government to create a balanced position between the rights of

Tsebe and Phale, on the one hand, and all other people in South Africa, on the other; by

taking every possible effective measure (other than obtaining the assurance raised in the

argument in Mohamed’s case) to minimise the risk of execution of Phale, while at the

same time upholding the interests of all people in our country and giving recognition to

the sovereignty of Botswana. As an alternative to a demand for an assurance (which

Botswana alleges it cannot give without violating its domestic law) the Government has

the power to utilise political pressure to resolve the dispute in accordance with

agreement reached between the states under the SADC Treaty. The Government has

undertaken to employ this avenue, and is the best judge of its efficacy.

27. In these circumstances the counter application should be granted in relation to foreign

nationals, and the Government should be allowed to exercise its executive powers

without the absolute restraint of a need for a prior undertaking that Botswana is unable to

provide under its domestic law.

C. IMMUNITY SOUGHT AND OBTAINED FROM THE COURT A QUO

28. On 27 March 2010 Tsebe launched an urgent application before the court a quo. The

material relief that he sought (for present purposes), was the review and setting aside of 15

the decision of the Minister and/or Director General of Home Affairs that he be deported

and/or removed from South Africa to the Republic of Botswana “without first obtaining a

written assurance from the Government of the Republic of Botswana that he will not face

the death penalty in Botswana under any circumstances”; a declaratory order that his

surrender to Botswana would be unlawful and unconstitutional without the written

assurance above; and an interdict prohibiting the Respondents from taking any action

whatsoever to surrender him until and unless the Government of the Republic of

Botswana provided the written assurance above. Tsebe also sought orders declaring his

detention to be unlawful and unconstitutional; “directing the Respondents to release (him)

from detention forthwith”; and “directing the First and /or Second Respondents to issue

the Applicant with an appropriate permit to legalise his presence in South Africa”.42

[Counsels’ underlining]

29. On 22 December 2010, Phale launched an urgent application in two parts: the first,

prohibiting the state from taking any action whatsoever to surrender him, pending final

determination of the second part, and until and unless the Government of Botswana had

provided a written assurance that Phale would not be subject to the death penalty under

any circumstances; and also, directing the Home Affairs respondents to release him from

detention by 17h00 on the day after the order was granted; the second, “Reviewing,

setting aside and declaring invalid the decision to declare him as an illegal foreigner”;

declaring his detention to be unlawful and unconstitutional; reviewing and setting aside

42 See Vol 1: notice of motion, paras 3-8 at p 2 and 3. 16

the decision that he be deported and/or removed from South Africa to Botswana without

a written assurance as above; declaring his surrender to be unlawful and

unconstitutional, without the written assurance above; and interdicting respondents from

taking any action whatsoever to cause him to be surrendered until and unless the

Government of Botswana provided such written assurance.43

30. The two applications were consolidated. Tsebe passed away before the hearing in the

court a quo. For purposes of the applications the court a quo accepted that Phale was

not a South African citizen, and rather a citizen of Botswana.44

31. In effect, Tsebe and Phale sought to interdict the Government from returning them for

trial to the country where they had allegedly committed murder, unless this Government

compelled the Government of Botswana to abandon its domestic law and constitution.

Phale sought the assistance of the judicial branch of government to interdict the

executive branch from exercising powers of extradition vested in it, in advance; and

despite the constitutional separation of powers. Both Tsebe and Phale, as foreign

nationals, sought to obtain their freedom of movement into and within South Africa, which

is only guaranteed to nationals by the general rule of international law,45 and to South

African citizens under s 21(3) of the Bill of Rights.46 Both Tsebe and Phale sought

immunity from the provisions of the Immigration Act, particularly those relating to

43 See Vol 7: notice of motion, p 576, more particularly paras 3 and 4 at p 577 and para 6 at p 580. 44 See judgment: para 49. 45 See Carmen Tiburecoo; Human Rights of Aliens under International Comparative Law; Martinus Nijhoff Publishers at p 233 to 234. 46 See The Law of South Africa, 2nd Edition, Vol 2, Part 2, paras 152-155. The difference between nationality and citizenship is dealt with in the judgment of O’Regan J in Kaunda and Others v President of the Republic of South Africa 2005 (4) SA 235 (CC) paras 239 to 241 at p 305 C/D to 306 B/C. 17

prohibited persons, in terms of s 29, and undesirable persons – fugitives from justice – in

terms of s 30(1)(f). They both sought the authority of the court a quo; to revoke the effect

of the words “any illegal foreigner shall be deported,” used in s 32(2) of the Immigration

Act; and to provide them with immunity from prosecution under the Botswana Penal

Code, unless the Government of Botswana agreed to violate s 51A(6) of the Constitution

of Botswana; or, to fetter the independence of the courts of Botswana in violation of the

Constitution of Botswana.47

32. In the circumstances which existed in South Africa, Botswana and the SADC region at

the material times,48 Tsebe and Phale sought to undermine what this court has

described, in S v Makwanyane 1995 (3) SA 391 (CC) (“Makwanyane”) at paragraph

[117], as an important requirement for the future of our country; namely “that respect for

the law should be restored and that dangerous criminals should be apprehended and

dealt with firmly. Nothing in this judgment should be understood as detracting in any way

from that proposition”. The Court stated further that “the greatest deterrent to crime is

the likelihood that offenders will be apprehended, convicted and punished. It is that which

is presently lacking in our criminal justice system; and it is at this level and through

addressing the causes of crime that the state must seek to combat lawlessness.”49

47 See answering affidavit of Minister of Justice: paras 58 and 59, record court a quo p 212-213. 48 See the Preamble to the Protocol on Extradition, annexure “JTR13”, Vol 5, p 406-417, which notes; the concern of the Heads of Government of SADC concluded between certain African Heads of State on 3 October 2002; for the escalation of crime at both national and transnational levels, and that the increased easy access to free cross border movement enables offenders to escape arrest, prosecution, correction and punishment; and their desire to eliminate any threat to the security of our people and cooperation in the prevention and suppression of crime. 49 Per Chaskalson P; para 122 at p 443 H-I. 18

33. Tsebe entered South Africa illegally on two occasions in his efforts to avoid police in

Botswana.50 The only offences for which he was liable to be incarcerated in South Africa

were contraventions of s 49(1)(a) and, (according to Matthews51) a contravention of s

49(14) of the Immigration Act “in that he falsely represented that he was entitled to

remain in the Republic”.52 Phale may be sentenced to imprisonment for a maximum

period of three months for contravening s 49(1)(a). (The precise details of his situation

insofar as other short term incarceration is concerned will be dealt with by Counsel for

the Minister of Home Affairs). The judgment of the court a quo facilitated the outcomes

sought by Phale and Tsebe. They received immunity from law which no citizen may

enjoy.

34. Phale may not lawfully be handed over for trial to Botswana unless the executive of that

country provides a diplomatic assurance that it will not comply with its own constitution.

He may not lawfully be detained in South Africa for purposes of handing over (via

extradition or deportation) unless an assurance that cannot be given by Botswana is

given.53 The maximum period for which he may be detained here for any existing

offence is minimal in the circumstances. However, the Government remains

50 See founding affidavit: Vol 1, paras 25-27 at p 14-15. 51 See his affidavit in support of application for leave to appeal: Vol 10, para 15 at p 75. 52 Section 49(1)(a) provides that: “anyone who enters or remains in, or departs from the Republic in contravention of this Act, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding three months.” Section 49(14) of the Immigration Act provides that “any person who for the purpose of entering or remaining in, or departing from or are facilitating or assisting the entrance into, residence in or departure from, the Republic, whether in contravention of this Act or not, permit any fraudulent act or makes any false representation by conduct, statement or otherwise, shall be guilty of an offence and liable on conviction to a fine or to imprisonment not exceeding four years”. 53 The credibility of Botswana’s position in this regard is for the Government to judge. South Africa cannot “speak with two voices”. Compare Inter Science case infra at p 117. 19

constitutionally responsible for any harm that he (or persons in his position) cause to

“people in our country.” It is bound to protect “all people”.

35. The Government lacks resources to prosecute persons in the position of Phale or

incarcerate them on an indefinite basis, whether at the expense of the inhabitants of

South Africa, or at all. Making laws to provide for the long term detention of persons in

the position of Tsebe and Phale is not a viable policy option or one that would find favour

with the electorate.54

36. For various reasons set out in its judgment the court a quo granted the declaratory order

and interdictory relief prayed for. A counter application by the Minister of Justice and the

Government was dismissed with costs.55 For present purposes this counter application

should be considered as being directed at foreign nationals only. The counter application

was intended to facilitate the advancement of the Republic by the national executive, as

well as the security and well being of its people, while taking account of the obligations of

the state to respect, protect, promote and fulfil the rights in the Bill of Rights. It was

expressly supported by the Minister of Home Affairs.56 It has the support of the Cabinet.

54 See founding affidavit of Minister of Justice in this application, para 40. 55 See judgment: Vol 9, para 130 at p 740-741. In its final form the counter-application read as follows (see judgment: para 54 at p 703-704):55 “It is declared that the Minister for Justice and Constitutional Development is authorised by the Constitution of the Republic of South Africa 1996, read with the provisions of the Extradition Act No 67 of 1962 (more particularly s 11 thereof) to order any person, accused of an offence included in an extradition agreement and committed within the jurisdiction of a foreign State party to such agreement, and who has been committed to prison under s 10 of the Act, to be surrendered to any person or authorised by such foreign State to receive him or her, notwithstanding that the extraditable offence for which extradition has been requested carries a death penalty under the law of that State, in circumstances where: (a) The Republic of South Africa has sought an assurance from the foreign State that the death penalty will not be imposed, or if imposed, would not be carried out; and (b) The foreign State has refused to provide such an assurance by virtue of the provisions in its domestic law.” 56 See answering affidavit of Minister of Justice: Vol 3, para 24 at p 167. 20

The applications directly affect the security cluster, as their departmental functions and

administrations are co-ordinated in relation to the unlawful entry and extradition of

persons in the position of Tsebe and Phale.57

37. In addressing this counter application the court a quo failed to have any regard to the

responsibility of the national executive, as the executive branch of government, to “the

rights of all people in our country” by virtue of the separation of powers or otherwise.

D. CONTENTIONS RELIED ON BY TSEBE AND PHALE BEFORE THE COURT A QUO

38. Tsebe alleged that his deportation to Botswana by the Minister and Director-General

would be unlawful and unconstitutional in that it would violate the order of non-surrender

made by the Minister of Justice.58 In the absence of an assurance from the Republic of

Botswana, that the death penalty would not be imposed or executed upon Tsebe,

handing him over would violate his rights to life and dignity, as well as his right not be

subjected to cruel and/or unusual punishment. Handing Tsebe over would contravene

South Africa’s international law obligations under the Convention against Torture and

Other Forms of Cruel and Unusual Punishment (“CAT”) and the Optional Protocol to the

Convention against Torture (“OPCAT”). Tsebe’s detention since 26 August 2009 had

lacked judicial process. It violated his rights procedurally and substantively.59 The fact

57 The security cluster consists of the Ministers of Defence, Correctional Services, Social Development, Home Affairs, as well as the National Intelligence Agency. See answering affidavit of Minister of Justice, founding application for leave to appeal, para 17. 58 The conduct of the Minister of Home Affairs and the Director-General in purporting to deport Tsebe under the Immigration Act amounted to a veiled, disguised and unlawful extradition. See founding affidavit: Vol 1, para 83 at p 27. 59 See founding affidavit: Vol 1, paras 17-22 at p 13-14. 21

that there was a possibility of Tsebe facing the death penalty in Botswana meant that his

deportation or removal would be unlawful and unconstitutional.60

39. Because this court, in Makwanyane, had held that the death penalty was

unconstitutional, South African officials had a duty to seek an assurance from the

Government of Botswana that he would not be subjected to violation of his rights upon

his surrender to Botswana; in particular that he would not be subjected to torture or other

cruel, inhuman or degrading treatment, including the death penalty. This duty flowed

from the Government’s positive obligation in terms of sections 7(2) of the Bill of Rights to

“respect, protect, promote and fulfil the rights in the Bill of Rights”. The Constitution

imposed a duty on the state to take positive steps to protect both the rights and values

referred to above. When a court interpreted the provisions of sections 7(2), 10, 11 and

12 of the Bill of Rights it was required, in terms of s 39(1)(a), to “promote the values that

underlie an open and democratic society based on human dignity, equality and freedom”.

40. This court, in Mohamed, had emphasized certain positive duties, in paragraphs 38, 58

and 60 of its judgment. Firstly, that the Government is required to give particular value to

the rights to life and dignity, and that “this must be demonstrated by the State in

everything that it does”. Secondly, “the positive obligation that (the Constitution) imposes

on the State to protect, promote, fulfil the rights in the Bill of Rights)”. 61

60 See Vol 1, para 83 at p 27. 61 See founding affidavit: paras 83-89 at p 27-30. 22

41. In regard to CAT, South Africa had ratified this treaty on 10 December 1998; CAT

defines and prohibits torture treatment; in Makwanyane the Constitutional Court held

that the death penalty constitutes cruel, inhuman or degrading treatment. The decision

to deport Tsebe meant that he had “wrongfully been subjected to fear that (he) would be

put to death or (was) at risk of being put to death in Botswana. This amounted to torture,

cruel, inhuman and degrading treatment as confirmed by the European Court of Rights In

Soering v United Kingdom Series A, 161, 7 July 1989; and Ocolan v Turkey 15 BHRC

Part 3, 3 January 2004, 297.62 (The argument in this paragraph is answered in Section L

below.)

42. In Part B of his application, Phale submitted that his deportation or removal to Botswana

would constitute a disguised extradition and would be unlawful; his removal to Botswana

in the absence of an assurance would be unlawful because it would; (a) violate the

aforementioned constitutional rights; and (b) violate South Africa’s international

obligations, including the obligations under CAT and OPCAT.63

43. According to the formulation of the court a quo; applicants’ case amounted to a

contention that in Mohamed this Court had “ruled that an absolute bar exists against any

person being extradited or deported from South Africa to another country where a death

penalty is a real risk”: and, respondents contended that Mohamed‟s case was

62 Soering v United Kingdom (1989) 11 ECHR 439 Ocolan v Turkey. 63 See Vol 7, para 14 at p 588; and paras 58 and 69 at p 600-603. 23

distinguishable on the facts, thus permitting extradition and/or deportation to take place in

the circumstances “of this case”.64

E. GENERAL CONTENTIONS ON BEHALF OF THE GOVERNMENT

44. The Government’s contention, more accurately stated, is that the Constitution requires

Government to be afforded an opportunity to perform executive functions in the manner

described elsewhere in these heads. This argument included a contention that the

relevant finding in Mohamed, describing the obligation upon the Government as well as

the approach required, had been stated in paragraph [42] of the judgment, that is;

“....an obligation 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 cannot depend on whether the removal is by extradition or deportation. That obligation depends on the facts of the particular case and the provisions of the Constitution, not on the provisions of the empowering legislation or extradition treaty under which the „deportation‟ or „extradition‟ is carried out.”

[Counsels’ underlining.]

45. This finding regulated the approach to the facts and law that the court a quo was bound

to follow in the Tsebe and Phale matters; secondly, it provided that the Constitution as a

whole – and not merely the Bill of Rights – was the supreme determinant of the action

64 See judgment: Vol 9, para 4 at p 687. 24

demanded (of the Republic of South Africa as one sovereign democratic state);65 and

thirdly, it suggested that causal assurance (as opposed to an undertaking in the terms

raised in argument) was required from the Government.

46. In its approach, the court a quo limited itself to an examination of the rights vested in

Tsebe and Phale by the Bill of Rights. However, Government contended that insofar as

the state is required by s 7(2) of the Constitution to respect, protect, promote, and fulfil

the rights in the Bill of Rights, the rights of Tsebe and Phale form but one part of a much

broader duty to vindicate enshrined rights of “all people in our country” as contemplated

by s 7 (1) thereof. The rights of persons other than Tsebe and Phale must be taken into

account. Consideration cannot be limited merely to the rights of the fugitives from the

justice system in their country of nationality.

47. They entered South Africa and approached the court a quo in order to obtain benefits

from the Bill of Rights which could protect them from the law of Botswana; and a

sovereignty to which they had elected to be most closely attached for all other purposes.

The concerns of all other persons (the public) have become material, particularly

because the public will have to bear the burden of the charge that Tsebe, Phale and

persons in their position create.66

48. The court a quo ignored the functional independence of the executive branch of

government, which was pertinently relied upon to locate the relevant source of the power

65 See the provisions of s 1(d) of the Constitution. 66 Compare s 30(1)(a) of the Immigration Act 25

to extradite. It is the Government which is constitutionally responsible, in the first

instance, for the handing over of foreign nationals who are fugitives from justice to their

countries of nationality. This function involves determining means, assessing the

interests involved, and considering political and other alternatives to surrender.67 The

executive is bound under the Constitution and by the decision of this Court in Carmichele

to prevent the outcome sought and obtained by Phale before the court a quo. It must be

afforded a degree of latitude in balancing the interests involved. The executive cannot be

interdicted in advance from performing this function.

49. The alternatives which Government faces involve difficult decisions, at a political level

and at a functional level, in deciding between the priorities to be met. One of these,

political engagement under the SADC Treaty, provides a measure of causal assurance.

A court should be slow to interfere with such rational decisions taken by political organs

in good faith.68 The court a quo ignored this.

50. In relation to the rule of law, as a founding value of the state69 and in any event, the

Government contends that in Makwanyane and Mohamed, this court proceeded on the

assumption that the persons being granted relief fell into a category of persons that

“should be apprehended and dealt with firmly”; who “should not go free or be allowed to

67 Compare: Certification of the Constitution of the RSA, 1996 (4) SA 744 (CC), paras 109 and 113. 68 See Soobramoney v Minister of Health, Kwa Zulu Natal 1998 (1) SA 765 (CC) para 29 at p 776 B/C to C/D. That courts must not attribute to themselves superior wisdom in relation to matters entrusted to other branches of governments (even when administrative action is involved) see Bato Star Fishing (Pty)Ltd. v Minister of Environmental Affairs and Tourism 2004 (4) SA 490 (CC), para 48 at p 514F-H. 69 See Section 1(c) of the Constitution. 26

escape the consequences of their anti-social behaviour”. This Court accepted that

“those who engage in violent crime should be met with the full rigour of the law”.70

F. DISTINCTIONS BETWEEN “CIRCUMSTANCES” IN MAKWANYANE AND MOHAMED

AND TSEBE AND PHALE’S CIRCUMSTANCES

51. In Makwanyane this court was seized with the question of the validity of domestic

legislation71 (applicable to all persons in South Africa), that authorised the Supreme

Court to pass capital punishment and the administration to execute it. That legislation

was inconsistent with the Bill of Rights.72 The Bill of Rights bound the Government in this

regard. It does not bind other governments.73 The death sentence for treason

committed when the Republic is in a state of war was left open. 74

52. Capital punishment is not impermissible under international law.75 Such punishment is

constitutional under the law of Botswana.76 The sovereignty of Botswana empowers it to

exercise the functions of a state within its territory to the exclusion of all other states. It

has a duty to protect its citizens. The exercise of South Africa’s constitutional jurisdiction

beyond South Africa’s territorial limits would, under international law, constitute an

70 See Makwanyane para 117 and see Mohamed para 1. Mohamed apparently alleged “that the relief sought in the proceedings in this court could have a bearing on the criminal trial which started some months ago”. 71 Sections 277(1)(a), 316A and 322(2)A of the Criminal Procedure Act. 72 See judgment para 151. 73 See Kaunda and Others v President of the Republic of South Africa 2005 (4) SA 235 (CC), para 54. 74 See the Makwanyane judgment: para19, p 452 E-G. 75 Per Chaskalson CJ in Kaunda, para 98. 76 See S v Ntesang 1995 (4) BCLR 426 (Botswana) 27

interference with the exclusive territorial jurisdiction of Botswana.77

53. In Mohamed‟s case certain state functionaries had colluded with the FBI to secure the

removal of Mohamed from South Africa to the USA. They had acted illegally and in

breach of Mohamed‟s constitutional rights. They failed to uphold and promote the rights

of Mohamed that were entrenched in the Bill of Rights.78 They disregarded regulation of

surrender in terms of the applicable law, the Aliens Control Act. This Court was informed

that the relief it granted would have a bearing on Mohamed‟s trial that had started some

months earlier. Accordingly, the Court sought to make findings that would have a

bearing on the trial.79 That is - to some extent – the Court sought to exercise the

international responsibility that should have been exercised by the executive branch of

government in the first place. Presently, the Government seeks to exercise executive

power in accordance with the Constitution.

54. The major distinction of circumstance between the present matters and Mohamed‟s case

is that the Government of Botswana was requested to provide a diplomatic assurance in

the case of Tsebe and refused to do so; (inter alia, on the basis of the provisions of its

domestic law); and the evidence suggests that Botswana will not provide an assurance in

the extradition of Phale. 80 In Mohamed, no assurance was ever requested and an

assurance would probably have been provided had it been requested. Accordingly, this

77 See Kaunda‟s case, para 38. 78 Per Chaskalson CJ in Kaunda, para 47 and the judgment in Mohamed, para 60. 79 See Mohamed judgment, paras 1 and 70. 80 See paras 28-31 of the answering affidavit of the Minister of Justice in the Phale matter. Record of court a quo p 202-203 and annexure “JTR 7” at p 367. 28

Court was neither called upon to consider; the rights of “all people in our country”; nor the

correlative duties of the State to other people in South Africa, besides the Applicants; nor

the powers of the State to employ other means available to achieve the purpose of the

assurance considered in Mohamed. In the case of Phale, the state is required to

consider the rights of all people before making any decision.

55. This Court held that the act of handing Mohamed over to a third state, without securing

an assurance that he would not be sentenced to death, meant that the immigration

authorities had failed to give any value to his right to life, human dignity, and not be

subjected to cruel, inhuman or degrading punishment.81 Had the South African

authorities sought such an assurance, it would not have been given. Mohamed was

facing the death penalty as a direct result of their omission.82 Presently the Government

is attempting to assert powers, vested in it by the Constitution and other legislation, with

a view to respecting, protecting, promoting and fulfilling the rights in the Bill of Rights of

all people in South Africa;83 in circumstances where an assurance is likely to be withheld

pursuant to the constitution and laws of Botswana.

56. A further distinction is that Mohamed was not returned to his country of nationality under

an umbrella of treaties aimed at interstate cooperation by member states in the region in

the prevention of crime and the protection of human rights. In paragraph [58] of its

judgment, this Court made it clear that the Government had cooperated with a foreign

81 See Mohamed judgment: para 48. 82 See Mohamed judgment: para 53. 83 See s 8(1) and s 7(2). 29

government to removed Mohamed from South Africa to a country of which the fugitive is

not a national and with which he has no connection other than that he is to be put on trial

for his life. Presently the Court is faced with fugitives who have attached themselves

closely to another jurisdiction for all purposes other than the valid law of that

jurisdiction.84 (No case for South African nationality was made out by Phale, although he

did raise the question of citizenship.85)

57. Presently, the Government seeks to protect the rights of Phale as far as possible vis-a-

vis the government of his state of nationality. State responsibility for this lies firstly with

the executive. Any decision by the Minister to extradite Phale would remain reviewable

by the judiciary, in the ordinary course and on grounds other than the failure to obtain an

undertaking.

84 Both Tsebe and Phale are nationals of Botswana. Tsebe admitted this. He was born there on 4 May 1979 and his national identity (Omang) number was 506915312. Phale admits that he was born in Mochudi, Botswana, on 15 August 1970. His mother, Else Phale, was married to his stepfather Ramontsho Phale, whose surname he was given at birth. His mother and biological father, Johannes Boloi were never married.84 On 10 November 2009, when Phale appeared before the Magistrate of Mankweng, he was legally represented by Mr Rammala. The lawfulness of his arrest was not put in issue. No objection was taken to the issuing of a warrant in terms of s 7 of the Extradition Act, because it was admitted that he was an illegal immigrant. His nationality was recorded on the J15 as Botswana. In his answering affidavit, Phale did not dispute an allegation made by the Minister of Justice (in paras 55 and 56) to the effect that, on his own version, the test to be applied establishes that he has a “genuine link” with Botswana, which regards him as a national. (As to this test in international law - where there is a dispute - see the Nottebohm case (second phase) International Court of Justice, ICJ Reports 1955.) In international law the two main principles by which his nationality is acquired are descent from a national (jus sanguinis) and birth within the state territory of Botswana (ius soli) (see Ian Brownlie: Principles of Public International Law; Seventh Edition at p 388). Nationality falls within the domestic jurisdiction of each state (see Tunis v Morocco Nationality Decrees: PCIJ Series B No. 4 (1923), 24). 85 As to his citizenship see answering affidavit of Minister of Justice: paras 41-53, record court a quo p 207-210. These aspects are dealt with in the separate judgment of O Regan J in Kaunda‟s case paras 239-242 at p 305 C/D to 306 F/G. 30

G. SAME APPROACH TO DIFFERENT CIRCUMSTANCES OF THIS CASE

58. When this Court (in Makwanyane) had to consider whether the imposition of capital

punishment was justifiable, a two stage approach was employed.86 This involved the

application of the limitation clause, in s 33(1) of the Interim Constitution, to intrusions

upon the rights to life, dignity and against cruel, inhuman or degrading punishment; as

well as a balancing of the alternatives, available to the State, that could be applied.87

The Court stated that a holding to the effect “that the death penalty for murder is

unconstitutional does not involve a choice between freedom and death; it involves a

choice between death and a very few cases which would otherwise attract that penalty

under s 277(1)(a)88 and the severe penalty of life imprisonment.” Imprisonment was seen

as the sufficient alternative remedy for the purpose of ensuring that a criminal would

never again harm other members of our society.89 The choices in this case are different.

59. Similarly, in Mohamed, this Court accepted that the right to life “like all other rights in the

Bill of Rights”, is subject to limitation in terms of s 36 of the Constitution; namely that the

limitation should be reasonable and justifiable in an open and democratic society based

on human dignity, equality and freedom, taking into account all relevant factors including

those mentioned in this section. In this case the same approach to justification should be

applied to cause and effect, but in different circumstances.

86 See judgment: para 96. 87 See judgment: parags 96-146. 88 Of the Criminal Procedure Act 51 of 1977. 89 See judgment: para 128. 31

H. ALLEGATIONS BY THE MINISTER OF JUSTICE BEFORE THE COURT A QUO

60. The Minister of Justice has (specifically) alleged that the ultimate power of surrender

vested in him, pursuant to s 11 of the Extradition Act cannot be exercised validly or

constitutionally without reference to certain factors dealt with above and further below;

and that the application of the decision in Mohamed as “an absolute bar” in the present

matter,90 would cause those factors to be ignored.

61. Notable among them are that: “an overriding duty will rest upon the Government of South

Africa, to rationally employ the resources of the State: (a) to protect and secure the

inhabitants of the Republic; (b) to uphold and enforce the law; and (c) to follow principles

governing security in the Republic which permit individuals and the nation to be free from

fear”; and that the executive would have to take full responsibility should inhabitants of

South Africa suffer criminal conduct at the hands of Phale or other fugitives in his

situation.91

62. In argument Carmichele v Minister of Safety and Security,92 was referred to. There the

state had allowed an accused person to remain at large in circumstances where organs

of state were in possession of information which suggested that he may have been a

violent criminal. This Court held that a duty rested on the state and its organs not to

perform any act that infringes the rights to life, human dignity, and freedom and security

of the person vested in the public in general (and women in particular) against violent

90 See Minister’s answering affidavit in Phale: para 83.22. 91 See answering affidavit: paras 83.18 and 83.19. 92 2001 (4) SA 938 CC, paras 43-45 at 957A/B – 958C. 32

crime; and that in some circumstances there would also be a positive component obliging

the state and its organs to provide appropriate protection to everyone through laws and

structures designed to avoid such protection. The Constitution does not draw a

distinction between action and omission in this regard. The information obtained in the

extradition requests for Tsebe and Phale created an a fortiori situation for the state.

63. In regard to the passing of legislation to prosecute persons in the position of Tsebe and

Phale, on the charges which caused them to flee, the Minister alleged that “The

resources of the Government of South Africa that are presently being allocated to the

administration of justice, including the prison service, are severely stretched in meeting

existing demand. The creation of extraordinary facilities to conduct trials for crimes

committed in foreign jurisdiction and the incarceration of persons convicted in such trials

– possibly for their lifetimes – are presently beyond the means of the Government.”93

64. In answer to this allegation Phale relies on the existence of Article 5(c) of the SADC

Protocol on Extradition.94 This specifically makes provision for an assurance in the terms

raised in argument in Mohamed.95 It provides that, “where extradition is refused on this

ground” (failure to provide an assurance) “the Requested state shall if the other state so

requests submit the case to its competent authorities with a view to taking appropriate

action ... for the offence.” Botswana contends that it cannot give such an undertaking

under its domestic law. South Africa, on the other hand, cannot take appropriate action

93 See answering affidavit: para 83.21 and Phale’s reply: para 125 at 468 record court a quo. 94 See the replying affidavit of Tsebe per Snyman: paras 57.1.1 at p 522. 95 See annexure “JTR13”, Vol 5, p 410. 33

in the form of prosecution because its courts may not exercise jurisdiction for the crime of

murder committed in Botswana. A lack of resources, policy considerations and concern

for support of the public (electorate) stand in the way of legislating for the prosecution

and long term incarceration of foreign fugitives.96

65. The Minister of Justice has also alleged that; “serious policy considerations would have

to be addressed by the executive before the legislation in question could ever be

enacted. Prosecutions in South Africa for offences committed in foreign territory raise

practical problems such as facilitating the presence of foreign witnesses and evidence.

Expenditure and the allocation of revenue also arise. High among the policy issues is

that South Africa is easily accessible to nationals of Botswana, Swaziland, Zimbabwe,

Malawi and the Democratic Republic of Congo, all of which permit the death penalty. At

present scarce resources that are available for allocation to the Department need to be

utilised for pressing domestic priorities, rather than the exercise of extra territorial

jurisdiction over capital offences that are more properly justiciable in foreign states”.

Furthermore, “a need also exists to prevent the applicants from becoming an indefinite

and unnecessary charge on the State”.97

66. South Africa has an obligation to cooperate with Botswana in the prevention and

combating of crime98 pursuant to SADC Protocol on Mutual Legal Assistance in Criminal

96 See answering affidavit: para 103.14 record court a quo. 97 See answering affidavit: para 83.20 at p 229. 98 Compare Kaunda‟s case para52 at 256 E-G. 34

Matters, as well as a Mutual Defence Pact which has not yet come into force.99

Cooperation appears in the letter of Minister Seretse, to the Minister of Justice where he

noted the position of the Government of Republic of South Africa during the discussions

held between the Ministers regarding the extradition of Tsebe, and stated his belief “that

we will continue to engage, on the review of the extradition treaty and the conclusion of

the pending Status of Forces Agreement between our Cooperating Defence Forces”.100

I. EXTRADITION AS EXECUTIVE AUTHORITY UNDER SEPARATION OF POWERS

67. Legally extradition straddles the divide between state sovereignty and comity between

states and functions at the intersection of domestic law and international law.101 It

involves three elements, viz. acts of sovereignty on the part of two states; a request by

one state to another state for the delivery to it of an alleged criminal; and the delivery of

the person requested for the purposes of trial and sentencing in the territory of the

requested state. It occurs when the Minister of Justice takes a decision in terms of s 11

that extradition should take place. Simultaneously a deprivation of freedom occurs.102

68. On an international plane the request from one state to another and response to the

request are governed by the rules of public international law. At play are the relations

between states. However, before the requested state may surrender a requested

99 See answering affidavit of Minister of Justice of Tsebe: Vol 3, para 77 at p 181. In terms of the provisions of the Vienna Convention the state parties to these treaties are bound to act in good faith. 100 See annexure “JTR12” to the answering affidavit of the Minister of Justice: Vol 5 at p 405. 101 Per Sacks J in President of the Republic of South Africa v Quagliani and Two Similar Cases 2009 (2) SA 466 (CC), para 1 at 469 F/G to H/I. 102 See Geuking’s case, para 17 at p 43F/G and para 48 at p 52D-E. 35

individual, there must be compliance with its own domestic law, which each state is free

to prescribe.103

69. The (domestic) Extradition Act in essence regulates the exercise of a sovereign state’s

power.104 The Government contends that a power of extradition is vested in the state –

as a state – because it is a state; that is the exercise of this power is regulated by the

Constitution and the Extradition Act, but was not created by either of them. The exercise

of the state’s power of extradition is delineated by the Constitution as falling within the

power of the national executive. The Act ascribes the function of extradition to the

Minister of Justice. The word “may” which introduces s 11 of the Act was not intended to

confer a power that was not already vested in the state.105

70. The Minister’s decision is a so-called “act of state” with international ramifications.106 The

fact that the performance of an act of state has been legislatively embodied in a

municipal Act, does not detract from the nature of the act or its international dimension.

Rather it merely ascribes the act of extradition to the functions of a specific member of

the executive – the Minister of Justice in preference to the more usual Minister of

International Relations.107 On the facts of the present case the exchanges between the

103 See Harksen v President of the RSA and Others 2000 Vol 2 SA 825 (CC) para 4, p 328 E/F-G. 104 Per Goldstone J in Geuking v President of the Republic of South Africa 2003 (3) SA 34 (CC), para 50 at 54A/B. The traditional powers of a sovereign state that have been recognised by our courts are seeing to the defence of the country, conducting foreign affairs and maintaining law and order. See Inter-Science Research and Development (Pty) Ltd v Republica De Mozambique 1980 (2) SA 111 (TPD) at 122A. Sovereignty manifests itself internally within a state and externally. See Madzimbamuto v Lardner-Burke, N.O. & Another N.O. 1968 (2) SA 284 (RAD) at 301; following R v Christian 1924 AD 101 at 106. 105 Compare Bid Industrial Holdings (Pty) Ltd v Strang and Another 2008 (3) SA 355 (SCA), para 61 at 370 F/G to H/I. 106 See The Law of South Africa, 2nd Edition, Vol 10 Part 1, Extradition by NJ Botha, para 220, footnote 10. 107 See Attorney General v de Keyser‟s Royal Hotel 1920 AC 508 (HL) and Botha (2006) SAYIL infra footnote 88. 36

South African Minister of Justice and Minister Seretse traversed all three functional areas

referred to in the Inter-Science case (see footnote 104).

71. In exercising his power of extradition under the Constitution the Minister would be unable

to come to a decision without first making a subjective judgment of the legal system and

internal policies of the requesting state.108 His decision falls within the foreign affairs

prerogative and may have serious international implications. Foreign policy should be

seen as a subspecies of the broader framework of national policy.109 Foreign relations is

a sphere of government reserved by our Constitution for the national executive.110 The

decision to extradite therefore constitutes a policy decision in the conduct of foreign

relations.111

72. The Extradition Act provides for extradition on the basis of a treaty, or in the absence of

treaty provisions.112 Except in extradition proceedings initiated by warrants of arrest

issued in an associated state, South Africa is willing to do everything possible to facilitate

extradition in the context of foreign relations.113 The provisions of s 3(1) of the Extradition

Act, regulate extradition to a foreign state which is a party to a extradition agreement with

South Africa. The negotiating and signing of such an international agreements is the

108 cf S v Williams 1988 (4) SA 49 (W), a decision which preceded the Constitution, in which it was concluded that it was not the aim of the Extradition Act to sit in judgment on the penal laws of a foreign state. That case dealt with extradition to an associated state by a magistrate in terms of s 12 of the Extradition Act. The Magistrate has no power to engage in international relations or seek diplomatic assurances from the executive of foreign states. He performs a judicial function in the courts (see s 166(d) of the Constitution). 109 See Botha (2006) 31 SAYIL; South African Judicial Decisions; Functionaries and Functions in Judicial Proceedings at 312-313. See also fn “Foreign relations is a sphere of government reserved by our Constitution for the national executive”. 110 See Kaunda‟s case, Chaskalson CJ at para 77 and Ngcobo J (as he then was) at para 172. 111 Robinson case supra at para 38. 112 See LAWSA supra para 227. 113 See Director of Public Prosecutions, Cape of Good Hope v Robinson 2005 (1) SACR 1 CC para 38. 37

responsibility of the national executive.114 Section 3(2), deals with a similar situation

when the requesting state is not a party to an extradition agreement and the President

has in writing consented to surrender. In both cases authority is vested in the President,

who exercises such authority collectively with the Cabinet.115

73. Practically, extradition involves departmental coordination in concluding and

implementing treaties, designating foreign states (for the purposes of s 3(3)), facilitating

requests (through the Department of Foreign Relations), arrest (through Interpol and

SAPS), detention (through the Department of Correctional Services), foreign policy

decision, and national security.

74. In the legal context above, (and within the factual context of the affidavits filed in this

matter) individual and collective responsibility of members of the Cabinet would be

involved in the exercise of surrendering Tsebe and Phale; as contemplated by section s

85(2)(b) of the Constitution (developing and implementing national policy), s 85(2)(c)

(coordinating the functions of state departments and administrations) and s 85(2)(e)

(performing any other executive functions provided for in the Constitution or a national

legislation).116

75. The requirement of obtaining the diplomatic assurance laid down in Mohamed, at

paragraph [42], falls beyond the purview of extradition (and Immigration) legislation per

114 See s 231(1) of the Constitution. 115 See s 83(a) and s 85(1) of the Constitution. 116 For an example of the application of s 85(2)(b) and (c) for the facts see President of the RSA v Eisenberg and Associates 2005 (1) SA 247 CPD. 38

se. It nevertheless attracts the responsibility of the Ministers of Justice and Home Affairs

as well as other members of the security cluster and the treasury. The order by the

Minister that Tsebe would not be extradited, involved the ius imperii; that is, the Republic

of Botswana could not take the Minister to court and review his decision.117

76. A decision by the Minister of Justice to surrender a fugitive from justice is therefore

excluded from the definition of administrative action in terms of s 1(i)(b)(aa) of the

Promotion of Administrative Justice Act of 2000 (“PAJA”).118

Ministers Allegations that the Court a quo ignored

77. In Tsebe’s case the Minister of Justice expressly alleged that the act of non surrender

was excluded from the definition of administrative action by the aforementioned provision

in that it constituted an exercise of executive authority.119 The extradition exercise as a

whole involved the executive powers or functions of the national executive (in

implementing the Extradition Act and national foreign policy, including the performance of

foreign relation functions contemplated in the Constitution and specifically provided for in

the Extradition Act). Such powers and functions were referred to in and contemplated by

s 85(2) of the Constitution. The relevant powers and functions of extradition had been

delegated to the Minister in the manner provided for in the Act.120 The engagement

between the governments of Botswana and South Africa was governed by international

117 Compare by way of example Inter-Science Research case supra at 122 where Margo J quoted Lord Denning in Trendtex Trading Operation v Central Bank of Nigeria 1977 QB 529 (CA) at 552, which dealt with the sovereign immunity for the state based on international law acts of a governmental nature. 118 Contrary to the assumption of Davis J in Robinson v Minister of Justice and Constitutional Development 2006 (6) SA 214 CPD. 119 See Minister’s answering affidavit: Vol 3, para 12 at p 162-163 120 See para 13, p 163. 39

law and operated on an international plane. It involved international politics, foreign

policy considerations, securing the well being of the people of South Africa and

Botswana and the interests of justice.121 In conducting such foreign relations the

Government of South Africa was bound to recognize the sovereign equality of Botswana

as contemplated in international customary law, article 2(1) of the UN Charter and certain

treaties. Such sovereign power included the jurisdiction of Botswana to exercise public

functions and wield authority over all the individuals living in the territory of Botswana,

including the power to prescribe legal commands, adjudicate thereon and enforce such

commands by coercive means. South Africa was bound to respect these fundamental

prerogatives of Botswana; that is, relating to one of its nationals that had allegedly

murdered another national within the territory of Botswana and had fled to South Africa to

avoid a warrant of apprehension on a murder charge that was issued in Botswana.122

78. In Phale the Minister also alleged that the power of extradition could not be exercised

validly or constitutionally without reference to a policy decision of the Government; not to

be perceived as a haven for criminals that commit capital offences in Botswana. This is

a legitimate consideration.123

79. The Minister’s allegation above, illustrating the nature of the extradition engagement

between the governments of Botswana and South Africa was merely noted in replying

121 See Vol 3, para 17 at p 164. 122 See paras 17, 19 and 20 at p 164-165. 123 See the judgment of Goldstone J in Geuking para 2 at 39I to 40A/B. 40

papers.124 The court a quo simply ignored the Minister’s submissions on the executive

nature of extradition.125 This constituted a misdirection.

80. If the Minister’s contention is correct the power of extradition stands to be asserted by the

executive under the constitutionally endorsed and required separation of powers of the

three branches of government. Judgment on whether or not Phale stands to be

extradited is not a function which a court can make in advance.126 Nor can a court

compel the executive to prepare and initiate legislation which it considers to be a

necessary alternative to extradition without an assurance. Those functions are also

reserved for the executive, by section 85 (2)(d) of the Constitution.

J. JUSTIFICATION OF LIMITATION TO FUGITIVES’ RIGHTS

81. It is submitted that the primary constitutional violation found to exist in Mohamed‟s case

arose from the causal connection between the handing over of Mohamed without

securing an (obtainable) assurance against the imposition of the death sentence, and the

threat of such a sentence that was being imposed upon him127 during his trial which had

already commenced when this Court heard the constitutional challenge.

124 Answering affidavit: para 83.11 at court a quo record p 224; and reply para 113 at p 465. In any event, insofar as this exercise involves national security it is subject to the authority of the national executive in terms of s 198(d) of the Constitution (as well as of Parliament). 125 In regard to analysis compare the purposes and functions included under the Immigration Act; and see President of the RSA v Eisenberg & Others 2005 (2) SA 247 (CPD). 126 Compare Soobramoney v Minister of Health Kwa-Zulu Natal 1998 (1) SA 765 (CC). 127 See judgment: para 53, p 915 C/D to E/F. 41

82. Should the finding of the court a quo be correct, to the effect that Botswana is a pariah

state128 and that it disregards its obligations under treaty, the assurance required by the

order of the court a quo might not - in any event - afford the protection that South Africa

is required to “assure” for Phale. If a sending state (under CAT) cannot consider

diplomatic assurances to be reliable (in cases of torture) it is not usually permitted to

hand over a person.129 Assurances by a receiving state do not normally constitute legally

binding undertakings. Often the executive of a requesting state cannot give an a priori

definitive overall assurance encompassing adjudication upon the death penalty by its

judiciary, executive clemency and pardon.

83. On the other hand (based on information and other factors within the knowledge of a

government) it may sometimes reasonably be anticipated that a surrendered accused will

not face the death penalty if convicted, even though a diplomatic assurance cannot be

given by the requesting state.130

84. In the Tsebe application it was not in dispute that the Cabinet of Botswana was not

authorised to fetter the powers of the Botswana High Court.131 In Phale, the Minister of

Justice alleged that the imposition of sentence in Botswana remains a function of the

judiciary and that a diplomatic assurance from Botswana would fetter the independence

128 Cf. Applicants’ notice of application for leave to appeal in SGHC para 16, particularly 16.2 and 16.3(e). 129 See See UNHCR Note on Diplomatic Assurances and International Refugee Protection (Protection Operations and Legal Advice Section Division of International Protection Services Geneva, August 2006 and the authority quoted in footnote 32. Agiza v Sweden Decisions of the Committee Against Torture under article 22 of CAT (Thirty-fourth session 2-21 May 2005. CAT9C/D/233/2003 (2005):. Chahal v United Kingdom (1996) 23 EHRR 413, Case No. 70/1995/576/662 Soering v UK Application No 14038/88, 7 July 1998. 130 See Karas v Canada (Minister of Justice and Attorney General) 2009 BCCA 1. 131 See Minister’s answering affidavit: Vol 3, para 203, p 223 and the replying affidavit of Gina Snyman: Vol 7, para 115, p 545-546. 42

of the courts of Botswana in violation of the Constitution of Botswana. Furthermore, it

was alleged that the Constitution of Botswana prohibits any other person or authority

from directing or controlling the power of the DPP to institute and undertake criminal

proceedings.132 Phale did not deny this.133

85. The Government accepts that it is bound and will remain bound to act consistently with

the obligations imposed upon it by the Bill of Rights at all times and wherever it may

act,134 both before and after surrender. Before exercising his powers and reaching a

decision whether or not to order the surrender of the Phale, the repository of power

would be required to pay due regard to his constitutional rights to human dignity, life and

not to be treated in a cruel, inhuman or degrading way; to consider the other material

facts and circumstances referred to in Phale’s founding affidavit and further

considerations arising from the decisions in Makwanyane and Mohamed;135 and to

consider the fair trial provisions in the Constitution of Botswana136 and the manner of

their implementation.

132 See record in court a quo answering affidavit paras 58 and 59 at pp 212-213. 133 Other than to refer to paragraphs 58 to 62 of Snyman’s reply in Tsebe (See Vol 7, p 527-528). There it was alleged that the application concerned the constitutional obligation of the respondents within South Africa. Although Phale made reference to qualifications in the international enforcement of article 2(1) of the UN Charter (not to interfere in the domestic affairs of other states) which article had unsuccessfully been raised against the apartheid government, this argument must fail. Because racial discrimination constituted a violation of every state’s duty under international law, whereas capital sanction for serious crime does not. The obligation not to impose apartheid was an obligation erga omnes (owed to all states) (See Barcelona Traction Light and Power Company Limited [1970] ICJR 1 at 2). The provisions of the UN Charter relating to dignity and equality inherent in all human beings and the pledge of member states to take joint and separate action to achieve this purpose of the UN spawned collective action against apartheid in the form of the Convention on the Elimination of Racial Discrimination (1996) as well as the International Convention on Suppression and Punishment of the Crime of Apartheid (1973). However, an equivalent state practice evidencing a rule of international customary law prohibiting the death penalty and permitting intervention in the domestic affairs of member states to enforce such a prohibition does not exist. 134 See Kaunda‟s case: para 228. 135 See Minister’s answering affidavit: para 83.12, court a quo record p 224-225. 136 See Fair trial provisions and the efficacy are dealt with by the Minister of Justice in Vol 3 at para 103-108, p 190-193. Phale has not put up a shred of evidence to show that he would not receive a fair trial. 43

86. However, another material consideration would be the duty upon the state to respect,

protect, promote and fulfil the rights “of all people” in South Africa, inter alia, be free from

all forms of violence from private sources.137 That places a correlative duty upon the

state as described in Carmichele. It involves appropriate measures to reflect the resolve

of South Africans as individuals and as a nation to be free from fear, as well as security

measures that have to be pursued in that regard in compliance with the law, including

international law.138 It requires the protection and security of the inhabitants of the

Republic, the prevention and combating of crime and the upholding and enforcing of

law.139 It requires the executive to take responsibility should inhabitants suffer further

criminal conduct at the hands of Tsebe or other fugitives in his situation. It involves the

supremacy of the rule of law.140

87. Ultimately, a policy decision is required (in relation to Phale and persons in his

position).141 The allocation of revenue for purposes of prosecution and long term

incarceration in South Africa of persons in the position of Phale would have to take into

account the needs and interests of the national government, determined by the objective

criteria.142 Presently this alternative is beyond the means of the Government.143

137 See s 12(1)(c) of the Bill of Rights. 138 See Principles governing national security in s 198A(c) of the Constitution. 139 See s 205(3) of the Constitution relating to the objects of the police service. 140 See s 1(c) of the Constitution. 141 As to the serious policy considerations that would have to be addressed by the executive before legislation providing for the prosecution of Phale in South Africa and his incarceration here would be enacted. (See para 103.14 of the Minister’s answering affidavit which is quoted above). 142 See s 214(2)(c) of the Constitution. 143 See Minister’s answering affidavit, para 83.21, court a quo record p 229. 44

88. The alternative that was pertinently raised in both applications has been summarised in

paragraph 71 of the Notice of Application (for leave to appeal). The Republics of

Botswana and South Africa are both parties to the Treaty of the Southern African

Development Community (“SADC”). As subjects of international law and members of the

SADC, both have accepted reciprocal obligations to promote the achievement of the

objectives of the SADC in terms of article 6(1) of the Treaty. The principal objectives of

SADC, contained respectively in articles 4(a), 4(c) and 4(e) of the SADC Treaty, include

“sovereign equality of all member states”, the principles of “human rights, democracy and

the rule of law” and “peaceful settlement of disputes”. By demanding an assurance,

South Africa seeks to intervene in the internal affairs of Botswana; and to compromise its

sovereign right to make and enforce its own (contrary) domestic law according to its

Constitution. South Africa does not wish to allow Phale to become a public charge or to

set a precedent which suggests that South Africa is a haven for persons charged with

capital crimes. A peaceful settlement of the issue, involving South Africa’s policy need

for a surrender and the failure by Botswana to provide the assurance requested by South

Africa, is a matter involving sovereignty, human rights and the rule of law. The dispute

stands to be determined politically via the Organ of Politics, Defence and Security

Cooperation, an institution of the SADC, established in terms of article 9(1) (b) of the

SADC Treaty. In both the Tsebe and Phale applications the Government of South Africa

unequivocally undertook to draw the impasse between South Africa and Botswana “to

the attention of the relevant non litigious institutions created by the SADC treaty in order 45

to resolve the issue in accordance with the objectives of the SADC”.144 The Government

is in the best position to affect the decision of a foreign state by persuasion; and courts

are reluctant to intervene in such matters.145

89. It is therefore submitted that, upon consideration of the constitutional rights of all

interested persons, the balancing of their interests, and further consideration of

alternatives ( enforceable international political remedies and the lack of resources for

alternative domestic prosecution and long term incarceration) the limitation to Phale’s

individual rights would be justified in terms of s 36 of the Constitution, should his

surrender be ordered after a request for an assurance from Botswana has been refused.

K. PUBLIC OPINION RE LONG TERM ADMINISTRATION OF FUGITIVES

90. The developing and implementing of national policy in relation to proposed legislation

providing for the prosecution and\or the long term detention of fugitives from justice

within South Africa is an executive function as contemplated in s 85(2)(b) of the

Constitution. So too is the preparation and initiation of any such legislation, in terms of s

85(2)(d) thereof. National security is subject to the authority of both the national

executive and Parliament.146

91. In Makwanyane Chaskalson P concluded that public opinion “may have some relevance

to the enquiry”, in relation to striking down legislation; but that the Court had a duty to act

144 Answering affidavit in Tsebe: Vol 3, para 91, p 184; and in Phale: para 83.14, p 226 of the record of the court a quo. 145 Compare para 130 and 131 Kaunda‟s case at 273 in relation to diplomatic protection. 146 See s 198(d) of the Constitution. 46

as an independent arbiter of what the Constitution provided for. However, should the

executive see fit to initiate legislation aimed at prosecuting persons in the position of

Tsebe and Phale in South Africa, or incarcerating them on a long term basis under

immigration law, it would be bound – constitutionally - to “be responsive” to universal

adult suffrage.147 The public are materially affected by the risk that fugitives impose while

they are at large and by the charge that they impose while being apprehended. Public

opinion is therefore material to the draft legislation prepared by the Chief Directorate of

Justice148 or any other legislation aimed at dealing with the mischief facing the authorities

and described above.

L. ANSWERS TO TSEBE AND PHALE IN INTERNATIONAL LAW

92. The statute of the International Court of Justice, whose function it is to decide in

accordance with international law such disputes as are submitted to it describes four

sources of international law.149

93. The CAT Convention, being one of them, entered into force on 26 June 1987. One

hundred and forty-five states have ratified it, including Botswana and South Africa. South

Africa has made declarations involving articles 21150 and 22.151 South Africa signed CAT

147 See s 1(d) of the Constitution. 148 See Annexure “JTR14” Vol 5, p 419-423. 149 Namely: “international conventions whether general or particular, establishing rules expressly recognised by the contesting states; international custom (as evidence of a general practice accepted as law); the general principles of law recognised by civilized nations; judicial decisions and the teaching of the most highly qualified publicists of the various nations, as a subsidiary means for the determination of rules of law”. See article 38 of the Statute of the International Court of Justice 1945. The lastmentioned is subject to article 59 which provides that the decision of the ICJ has no binding force except between the parties and in respect of that particular case. 150 In terms thereof the Committee against Torture may receive communications by a state party against another state party. 47

on 29 January 1993 and ratified it on 10 December 1998. Botswana ratified CAT on 8

September 2000. The Optional Protocol to the Convention, pursuant to United National

General Assembly Resolution A/57/199 entered into force on 22 June 2006. There have

been thirty-four ratifications. South Africa and Botswana have not ratified this Protocol.

94. Article 1(1) of CAT defines the term “torture”. The last sentence thereof provides that “it

does not include pain or suffering arising only from, inherent in or incidental to sanctions”.

(Counsel’s underlining.) Article 3(1) prohibits return (“refouler”) or extradition of a person

to another state “where there are substantial grounds for believing that he would be in

danger of being subjected to torture”. Article 3(2) provides that, “For the purpose of

determining whether there are such grounds, the competent authorities shall take into

account all relevant considerations including, where applicable, the existence in the State

concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”

95. No basis exists to conclude that the imposition of the death penalty in Botswana

constitutes a pattern of gross, flagrant or mass violation of human rights. The trial and

punishment of Phale in Botswana would operate according to the law and Constitution of

Botswana.152 In the case of Ntesang,153 a full bench decision of five judges of the Court

of Appeal of Botswana, held that the death sentence was not unconstitutional; and

neither was its form of execution. The court concluded that the prohibition against

151 In terms thereof it is competent for the Committee to receive communications from individuals. Articles 21 and 22 entered into force on 26 June 1987. Fifty-nine state parties have made declarations in respect of article 21 and sixty-two in respect of article 22. 152 A list of persons executed in Botswana from independence in 1966 to 2006 is listed as part of Annexure “JTR15” (See Vol 5, p 424). 153 1995 (4) BCLR 426 (Botswana). 48

torture, inhuman or degrading punishment or treatment cannot vitiate the death penalty

because the Botswana court has a duty to interpret the Constitution so as to give effect

to the meaning of s 7(2) thereof. (That section saves the death penalty by hanging.) The

court noted that it “as well as other institutions of government of this country cannot and

should not close their ears and eyes to happenings in other parts of the world and among

the international community to which we belong”. Furthermore, the Botswana Centre for

Human Rights,154 claims to have obtained a stay of execution and retrial of two accused

(Maauwe and Motswetla) who were due to be executed on 16 January 1999, by relying,

inter alia, on the provisions of s 18(1) of the Constitution of Botswana.155 They were

retried and acquitted by the Court of Appeal in 2006.156

96. In Kaunda‟s case, Chaskalson CJ concluded that, although the abolitionist movement is

growing stronger at an international level, capital punishment is not prohibited by the

African Charter on Human and Peoples Rights or the International Covenant on Civil and

Political Rights and is still not impermissible under international law.157 Of the one

hundred and thirty-eight state parties to CAT, forty-three permit the death penalty.158 The

list includes China, India and the USA (among the major powers) as well as Lesotho,

154 A non-governmental organization known as “DITSHWANELO”. 155 This provides as follows: “Subject to the provisions of subsection (5) of this section, if any person alleges that any of the provisions of s 3 to 16 (inclusive) of this constitution has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other actions with respect to the same matter which is lawfully available, that person may apply to the High Court for redress.” 156 See Vol 3, para 108 at p 192-193. 157 Per Chaskalson CJ at para 98, p 26J - 267C. 158 See answering affidavit of the Minister of Justice: Vol 3, para 143.6 at p 208. The state parties to CAT appear on a list issued by the UN High Commission for Human Rights. A copy appears, marked “JTR17” in the Tsebe case. (Vol 5, p 429. This lists the date of signature, ratification, accession and succession.) This appears on Annexure “JTR18” to the Minister’s answering affidavit. Vol 5, p 433-434. 49

Malawi, Swaziland and Zambia (among the neighbouring states of South Africa). The

mosaic of treaties above and their application make it apparent that international custom,

as evidencing a general practice accepted as law, does not recognise a prohibition

against the death penalty in cases where states prosecute and sanction persons who

murder fellow citizens upon national territory. Insofar as the court in Makwanyane made

a finding that the death penalty is a cruel, inhuman and degrading punishment it did so

within the context of South Africa’s Constitution.159 This Court was required to construe

the South African Constitution as domestic law, and not as an international instrument.160

97. In any event, this Court has expressly recognised that an underlying constitutional need

to serve the welfare of persons in South Africa may require the state to suspend its

obligations in international law.161 Torture, which fell within the definition of “gross

violation of human rights” in terms of s 1 and Chapter 4 of the Promotion of National

Unity and Reconciliation Act, No 34 of 1995 was made subject to amnesty provisions

despite the fact that South Africa had signed CAT and had bound itself to the other state

parties to act in good faith in relation to its provisions.162

CONCLUSION

98. The Government desires to carry out its responsibilities and obligations under the

Constitution and international law. The applicants seek the leave of this Court to

159 Per Chaskalson P judgment: para 95, p 434A/B to C/D. 160 Judgment: para 39, p 415 D-F. 161 See Azapo and Others v President of the Republic of South Africa 1996 (4) SA 671 (CC). 162 (Former security policeman, Geoffrey Theodore Benzien accordingly applied for and was granted amnesty for torture by the Amnesty Committee.) 50

exercise their powers and assume the constitutional responsibilities which the order of

the court a quo has usurped. This is a constitutional matter. In the circumstances above

it would be just and equitable to grant the applicants leave to appeal, to set aside the

order made by the court a quo, and to grant the counter application insofar as it relates to

foreign nationals.

Dated at Cape Town this 11th day of JANUARY 2012.

MICHAEL DONEN SC

ADV. S POSWA-LEROTHOLI Counsel for the Minister of Justice and the Government of South Africa

51

INDEX Introduction to written argument ...... 1

A. Context and background ...... 2

B. Summary of Argument of Government ...... 11

C. Immunity sought and obtained from the court a quo...... 13

D. Contentions relied on by Tsebe and Phale before the court a quo ...... 19

E. General contentions on behalf of the Government ...... 22

F. Distinctions between “circumstances” in the Makwanyane and Mohamed cases and Tsebe and Phale’s circumstances...... 26

G. Same approach to different circumstances of this case ...... 29

H. Allegations by the Minister of Justice before the court a quo ...... 30

Minister’s allegations that the court a quo ignored ...... 37

J. Justification of limitation to fugitives’ rights ...... 39

K. Public opinion re long term administration of fugitives ...... 44

L. Answers to Tsebe and Phale in international law ...... 45

Conclusion ...... 48

List of authorities ......